Opinion
D074177
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. DEREK DWAYNE HARRELL, Defendant and Appellant.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Kristen Chenelia, and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD272905) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed in part, reversed in part, and remanded with directions. Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Kristen Chenelia, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Derek Dwayne Harrell appeals a judgment of conviction entered after a jury found him guilty of one count of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court sentenced Harrell to a prison term of 11 years, consisting of three years for the attempted voluntary manslaughter charge, one year for a weapons use enhancement (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)), three years for a great bodily injury enhancement (§§ 1192.7, subd. (c)(7), 12022.7, subd. (a)), and four years for prior prison term enhancements (§§ 667.5, subd. (b)(5), 668). The court stayed punishment for the assault with a deadly weapon conviction.
All further statutory references are to the Penal Code, unless otherwise noted.
Harrell challenges the judgment on multiple grounds, claiming: (1) substantial evidence did not support the convictions; (2) the trial court provided the jury an instruction on contrived self-defense inapplicable to the facts of the case; (3) the trial court deprived him of a fair trial by ordering the placement of a second bailiff in the courtroom; (4) the prosecutor engaged in several acts of misconduct; (5) the trial court exhibited bias toward him and in favor of the prosecution, depriving him of due process and a fair trial; and (6) the cumulative prejudice of the alleged errors violated his right to due process. To the extent his trial counsel did not object on these grounds, he asserts ineffective assistance of counsel.
Further, after the completion of briefing, the Governor signed into law Senate Bill No. 136, which limited the offenses giving rise to a prior prison term enhancement under section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) The parties filed briefs at our request addressing the impact, if any, of Senate Bill No. 136 on Harrell's case.
We conclude Harrell's prior prison term enhancements must be stricken due to the recent legislative amendments effectuated by Senate Bill No. 136. Accordingly, we reverse the sentence and remand the matter to the trial court to resentence Harrell. In all other respects, we affirm the judgment.
II
BACKGROUND
A
The Stabbing
During the summer of 2017, Harrell was homeless and made a living selling drugs and giving haircuts to people on the street. In June 2017, he approached the 60-year-old victim, with whom he was not previously acquainted, and offered to give him a haircut or sell him a set of hair clippers. The victim declined the offer, but Harrell and the victim became acquaintances and occasionally spent time together at the victim's apartment.
The acquaintanceship between Harrell and the victim was short-lived. In July 2017, Harrell brought clothing to the victim's apartment and the clothing went missing. Harrell believed the victim took the clothing, repeatedly telephoned the victim about the clothing, and left voice messages demanding the return of the clothing. He also showed up at the victim's apartment several times screaming obscenities, blaming the victim for stealing the clothing, and threatening violence. One evening after Harrell's clothing went missing, a rock was thrown through the window of the victim's upper-story apartment.
Soon after, Harrell and the victim got into a violent confrontation near the victim's apartment. The victim was intoxicated and later tested positive for methamphetamine, cocaine, and opiates. Harrell and the victim provided differing accounts about the confrontation, with each blaming the other as the main aggressor. However, it is undisputed Harrell stabbed the unarmed victim several times during the confrontation. As a result of the stabbing, the victim suffered severe knife wounds on his neck and abdomen.
B
Prosecution Case
By amended information, Harrell was charged with one count of attempted murder and one count of assault with a deadly weapon. The amended information further alleged Harrell inflicted great bodily injury on the victim, used a deadly or dangerous weapon during commission of the offenses, and suffered four prior prison terms.
At trial, the primary disputed issues were whether Harrell instigated the confrontation and whether he reasonably acted in self-defense. The prosecution elicited testimony pertinent to these issues from two witnesses—the victim and a witness who drove by the victim's apartment building at or near the time of the confrontation.
The parties elicited testimony from other witnesses not discussed in the Factual and Procedural Background section. To the extent such testimony is relevant to an issue on appeal, it will be referenced in the Discussion portion of the opinion.
The victim testified he first encountered Harrell on the evening in question when he exited his apartment building and observed Harrell riding a bicycle. The victim testified Harrell screamed, "Man, where my clothes at? You know, you know, you got my shit. Where my stuff at?" The victim testified he replied that Harrell needed to "get some help" and returned inside the apartment building. The victim testified he encountered Harrell a second time a few hours later, at approximately 8:30 p.m., when he exited the apartment building to socialize with neighbors. The victim testified Harrell was still riding a bicycle and was "going off" about his missing clothing. The victim testified he responded, "Stop bothering. Just go and get some help."
According to the victim, the confrontation occurred a few hours after the second encounter. He testified he exited the apartment building to smoke a cigarette and, although he usually carried a cane to walk distances, he did not have a cane with him. The victim testified he finished his cigarette and faced the apartment building to unlock the door, at which point Harrell approached him from behind. The victim testified he turned around and tried to restrain Harrell; however, Harrell pulled out a knife and repeatedly stabbed him. The victim initially testified he did not recall whether he and Harrell remained in front of the apartment building door during the confrontation. However, he later testified he "mov[ed] away" from the apartment building door during the struggle and, at some point, ran into the street. The victim testified he escaped the confrontation by retreating into the apartment building and calling 911.
The prosecution also elicited testimony from a witness who drove by the victim's apartment building. The witness testified he had a work shift from 4:00 p.m. to midnight and drove by the building on his lunch break, which he believed he took at 9:00 or 9:30 p.m. He testified he was waiting for a red light to change at an intersection near the victim's apartment building when he heard a loud noise and yelling. He observed two men who appeared to be in an argument. According to the witness, one man had a bicycle and was situated on the sidewalk a block from the victim's apartment building and the second man was older, standing in the street, and "squaring off" with his fists raised. The witness testified the men were eight to 10 feet apart and the older man stepped toward the other man, but he did not see physical contact between them.
C
Defense Case
The defense elicited testimony from one witness regarding the circumstances of the confrontation—Harrell. He testified he first observed the victim at "news time" (or "five o'clock") on the evening of the confrontation. He testified he witnessed the victim buy a bottle of alcohol from a female at a bus stop near his apartment building.
Harrell testified he encountered the victim a second time at "ten something" p.m. He testified he was standing with his bicycle at an intersection about a block from the victim's apartment building when the victim approached and pinned him and his bicycle against a gate. Harrell testified the victim used his elbow to push against Harrell's throat and used his knee to push the bicycle and Harrell into the gate. According to Harrell, the victim was intoxicated and had a "crazy look in his face." Harrell testified he threw a beer can at the victim to try to stop him, but the victim did not relent. Harrell testified a knife fell from his pocket, which he picked up and swung to ward off the victim. Harrell testified he "absolutely" needed to defend himself with the knife and was trying to "get some space" between himself and the victim. Harrell testified the victim ultimately "backed up" and Harrell grabbed his bicycle and "got away."
III
DISCUSSION
A
Sufficiency of the Evidence
Harrell challenges the sufficiency of the evidence supporting the attempted voluntary manslaughter and assault with a deadly weapon convictions. He claims his testimony and the driver-witness's testimony proved he acted in perfect self-defense as a matter of law and, therefore, substantial evidence did not support the convictions.
" 'The doctrine of self-defense embraces two types: perfect and imperfect.' " (People v. Iraheta (2014) 227 Cal.App.4th 611, 620.) Perfect self-defense applies when a defendant acts under an honest and reasonable belief in the need to defend oneself or others from imminent danger of death or great bodily injury. (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1164.) For a defendant's belief to be reasonable, " '[t]he threat of bodily injury must be imminent' and the [amount of] force used in response ' "reasonable under the circumstances." ' " (People v. Brady (2018) 22 Cal.App.5th 1008, 1014 (Brady).) Perfect self-defense exonerates the accused of criminal liability. (People v. Hardin (2000) 85 Cal.App.4th 625, 630.)
By contrast, imperfect self-defense applies when a defendant acts under an actual, but unreasonable, belief in the need to defend oneself or others. (People v. Chavez (2018) 22 Cal.App.5th 663, 689.) Imperfect self-defense does not absolve a defendant of criminal liability; rather, it "negates what would otherwise be malice, and [the defendant] is guilty of ... attempted voluntary manslaughter, not ... attempted murder." (People v. McCoy (2001) 25 Cal.4th 1111, 1116.)
The guilty verdicts returned for the attempted voluntary manslaughter and assault with a deadly weapon charges indicate the jury necessarily found Harrell did not act in perfect self-defense. Stated differently, the jury necessarily found Harrell did not act under an honest and reasonable belief in the need to defend himself. However, the jury acquitted Harrell of the greater offense of attempted murder and convicted him only of the lesser included offense of attempted voluntary manslaughter. As noted ante, the attempted voluntary manslaughter charge required the prosecution to establish Harrell acted under an actual, albeit unreasonable, belief in the need to defend himself. Thus, in assessing the sufficiency of the evidence, our task is to determine whether substantial evidence supported the finding that Harrell's use of force was unreasonable.
The parties agree Harrell did not act in the heat of passion, which is the alternative means by which the jury could have found him guilty of attempted voluntary manslaughter. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1136-1137.)
" ' "In assessing the sufficiency of the evidence, we review the record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citation.] We resolve all evidentiary conflicts and questions of credibility 'in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence.' " (Brady, supra, 22 Cal.App.5th at p. 1014.)
On the record before us, we conclude substantial evidence supported the verdicts based on a lack of objective reasonableness. The victim testified he was unarmed during the confrontation and no evidence was introduced to the contrary. There also was no evidence demonstrating Harrell believed the victim possessed a weapon during the confrontation. The jury reasonably could have concluded the force Harrell used was excessive and unreasonable based on the victim's unarmed status—even if, as Harrell testified, the victim instigated the confrontation. (People v. Clark (1982) 130 Cal.App.3d 371, 380 [perfect self-defense improper where "victim was not armed with a weapon, and defendant did not testify that he believed that victim intended to use a weapon against him"], abrogated on another issue in People v. Blakeley (2000) 23 Cal.4th 82, 92; Levenson & Ricciardulli, Cal. Practice Guide: Criminal Law (The Rutter Group 2019) § 4:26 ["A good example [of an unreasonable belief] is when a victim without a weapon attacks a defendant, and the defendant responds by killing the victim with a firearm."].)
The jury rationally could have concluded Harrell's use of force was unreasonable based on other evidence as well. The victim testified he was 60 years old, was highly intoxicated, and did not have his cane with him on the evening at issue, although he typically used a cane to ambulate. The driver-witness also testified he observed Harrell and the victim were separated from one another by a fairly large distance of eight to 10 feet. From this evidence, a jury rationally could have found it was unreasonable of Harrell to believe the unarmed, intoxicated, and elderly victim possessed the agility and coordination necessary to pose an imminent danger to him.
B
Contrived Self-Defense Instruction
The trial court instructed the jury on the principle of contrived self-defense using CALCRIM No. 3472. CALCRIM No. 3472 provides as follows: "Right to Self-Defense: May Not Be Contrived [¶] A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." Harrell contends the court erred in charging the jury with CALCRIM No. 3472 because the instruction had no application under the facts of the case. He argues his theory at trial was that the victim instigated the confrontation, while the prosecution's theory at trial was that Harrell attacked the victim without warning. He claims that under either party's theory, he did not provoke the victim to fight.
We do not address Harrell's instructional error argument because the asserted error, if any, was harmless. Throughout closing arguments, the prosecution maintained that Harrell engaged in a "cold, calculated, and precise" attack on the victim "from behind when he was most vulnerable." It mentioned the contrived self-defense instruction only once and, immediately thereafter, urged the jury it did not need to resort to such a theory. As the prosecution explained, "self-defense [would not even] come in" under the prosecution's theory—i.e., if Harrell attacked the victim.
Further, the court instructed the jury it may receive instructions that did not apply to the case, depending on the jury's findings, and directed the jury not to draw assumptions from the giving of an instruction. In accordance with these instructions, we must presume the jury disregarded CALCRIM No. 3472 if it found there was not substantial evidence to support its application. (People v. Frandsen (2011) 196 Cal.App.4th 266, 278 ["[T]he jury is presumed to disregard an instruction if the jury finds the evidence does not support its application."]; People v. Eulian (2016) 247 Cal.App.4th 1324, 1334-1335 [contrived self-defense instruction harmless].)
Finally, the verdicts themselves confirm the jury did not rely on CALCRIM No. 3472. As noted ante, the jury found Harrell guilty of the lesser included offense of attempted voluntary manslaughter on grounds that he acted in imperfect self-defense. This verdict would not have been possible if the jury believed the self-defense was contrived. If the jury believed the self-defense was contrived, it necessarily would have rejected all of his claims of self-defense, including the claim of imperfect self-defense, and found him guilty of the greater offense of attempted murder. The fact the jury did not do so compels us to conclude it did not rely on CALCRIM No. 3472 or find that Harrell acted in contrived self-defense.
CALCRIM No. 3472 does not distinguish between perfect and imperfect self-defense. Instead, it broadly applies to any form of contrived self-defense. (People v. Ramirez (2015) 233 Cal.App.4th 940, 950-951 [rejecting argument that CALCRIM No. 3472 applies only to perfect self-defense and not to imperfect self-defense].)
C
Additional Security Measures
On the second day of Harrell's testimony, the courtroom bailiff notified the court that Harrell was acting in a confrontational manner and, therefore, the bailiff requested a second bailiff be stationed in the courtroom for the remainder of his testimony. The court granted the request and permitted a second bailiff to be stationed next to the jury box. Harrell contends the court erred in granting the request and claims the presence of the second bailiff conveyed an improper message to the jury that he was "extra dangerous."
" 'Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." ' [Citation.] '[E]xtraordinary security practices carry an inordinate risk of infringing upon a criminal defendant's right to a fair trial' and 'must be justified by a particularized showing of manifest need sufficient to overcome the substantial risk of prejudice they pose.' " (People v. Beck and Cruz (2019) 8 Cal.5th 548, 624.) "For example, visible physical restraints like handcuffs or leg irons may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community." (People v. Stevens (2009) 47 Cal.4th 625, 632 (Stevens).)
However, "the stringent showing required for physical restraints like shackles is the exception, not the rule. Security measures that are not inherently prejudicial need not be justified by a demonstration of extraordinary need. [Citations.] In contrast to physical restraints placed on the defendant's person, [the Supreme Court has] upheld most other security practices when based on proper exercises of discretion," including "the stationing of security or law enforcement officers in the courtroom." (Stevens, supra, 47 Cal.4th at pp. 633-634.) " '[T]he use of identifiable security guards in the courtroom during a criminal trial is not inherently prejudicial,' in large part because such a presence is seen by jurors as ordinary and expected and because of the many nonprejudicial inferences to be drawn from the presence of such security personnel." (People v. Jenkins (2000) 22 Cal.4th 900, 998.)
The record reflects the trial court did not abuse its discretion in ordering the stationing of a second bailiff. Harrell exhibited disruptive behavior throughout the trial, including during the following incidents: (1) he was noncompliant and confrontational with bailiffs on multiple occasions; (2) he disrupted proceedings and was removed from the courtroom for yelling the court was "stackin' up the deck against" him and he was "not scared" of the court; (3) he repeatedly "made noises" and visibly reacted to the court's rulings; and (4) during a hearing ostensibly conducted pursuant to People v. Marsden (1970) 2 Cal.3d 118, he did not use the hearing for its intended purpose and instead used it to malign the prosecutor and the court. Further, during the court's ruling on the request for a second bailiff, Harrell interrupted proceedings and proclaimed the court was railroading him and was "not [more] powerful than God ...."
Given Harrell's history of disruptions and his apparent inability to control his outbursts, the court did not abuse its discretion in concluding a second bailiff was necessary "to maintain courtroom security and orderly proceedings." (People v. Hayes (1999) 21 Cal.4th 1211, 1269; see also People v. Duran (1976) 16 Cal.3d 282, 292, fn. 11 ["Evidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained may warrant the imposition of reasonable restraints if, in the sound discretion of the court, such restraints are necessary."].)
D
Prosecutorial Misconduct
Harrell claims the prosecution engaged in misconduct in multiple respects. He claims the prosecution failed to correct false or misleading witness testimony, misstated the evidence and the law during closing arguments, and impugned defense counsel's integrity. We conclude these arguments are forfeited, meritless, or both.
1
Failure to Correct False Testimony
One of the officers who responded to the stabbing, testified the police "found" the victim on the sidewalk near the entry of his apartment building. Harrell contends the officer's testimony was false or misleading because the police in fact called to the victim from outside his apartment building and "found" him when he exited the building. According to Harrell, the testimony prejudiced him because it corroborated the victim's accounting of the incident by suggesting Harrell stabbed him in front of the apartment building. Harrell asserts the prosecution had a duty to correct the testimony at issue. (People v. Carrasco (2014) 59 Cal.4th 924, 966 (Carrasco) [" 'A prosecutor's presentation of knowingly false testimony [citation], or the failure to correct such testimony after it has been elicited [citation], violates a defendant's right to due process ....' "].)
Harrell did not object to the officer's testimony regarding where the police "found" the victim or the prosecutor's alleged misconduct. Thus, he has forfeited his claim of misconduct. (People v. Krebs (2019) 8 Cal.5th 265, 323; Carrasco, supra, 59 Cal.4th at pp. 966-967.)
Even if we were to overlook forfeiture, the asserted error was not prejudicial. At trial, it was undisputed the victim returned to his apartment after the stabbing. The victim, for example, testified he escaped the confrontation and called 911 from his apartment. The physical evidence corroborates this testimony, as there was a trail of blood leading from outside the apartment building to the victim's apartment. Because all parties agreed the victim returned to the apartment after the stabbing, the location where the police and the victim later encountered one another is immaterial. It discloses nothing about where the stabbing occurred, nor whose version of the confrontation, if any, was correct. Therefore, the asserted misconduct was harmless.
2
Misstatements of Evidence
Next, Harrell contends the prosecutor misstated the evidence during closing arguments. First, he claims the prosecutor inaccurately informed the jury that the driver-witness may have witnessed one of the earlier encounters between the men—not the stabbing. Second, he argues the prosecutor misinformed the jury that Harrell—not the police—brought up the possibility that he may have killed the victim during his interview with the police.
Harrell did not object to the prosecutor's statements regarding the evidence and the inferences therefrom. Accordingly, he has forfeited his challenge to the prosecutor's statements. (People v. Seumanu (2015) 61 Cal.4th 1293, 1320 (Seumanu) [defendant forfeited prosecutorial misconduct claim based on alleged misstatements of evidence].)
Were we to address Harrell's argument on the merits, we would find no reversible error. " 'Prosecuting attorneys are allowed "a wide range of descriptive comment" and their " ' "argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom." ' " ' " (People v. Jackson (2016) 1 Cal.5th 269, 349.) The prosecutor's statement that the driver-witness may have viewed an earlier interaction between the men is a reasonable inference from the evidence, given that the driver-witness testified he thought he took his lunch break at 9:00 or 9:30 p.m. and Harrell testified the confrontation occurred later, at "ten something" p.m. Further, the driver-witness testified he did not see anyone bleeding, whereas the victim testified he was bleeding during the confrontation. Based on this evidence, the prosecutor's statement was permissible.
The prosecutor also stated the driver-witness testified his lunch break was at 8:30 p.m. Although this comment misstated the evidence, it was not material or prejudicial. Had the prosecution not made this statement, the best-case scenario for the defense would have been that the jury would have believed the driver-witness viewed the confrontation. However, the driver-witness's testimony was not all helpful to the defense, as Harrell claims. As noted ante, he testified he saw no physical contact between the men and the men stood eight to 10 feet apart—evidence from which a jury reasonably could have concluded Harrell's use of force was unreasonable.
Similarly, we discern no prejudicial error from the prosecutor's statement that it was Harrell who first mentioned he may have killed the victim. As Harrell correctly notes, the police first referenced the possibility the victim may have died when they told Harrell, "[w]e know that you weren't trying to kill this guy...." However, the jury would not likely have drawn negative inferences against Harrell even if it was misled to believe Harrell had broached the topic first. The police had just informed Harrell the victim had been stabbed, a disclosure which naturally would result in further dialogue as to whether the victim was alive. Further, whether it was Harrell or the police who raised the possibility of the victim's possible death was irrelevant to the key issues at trial—i.e., which man instigated the confrontation and whether Harrell properly acted in self-defense. On this record, we discern no prejudice from the alleged misconduct.
3
Misstatement of the Law
During closing arguments, the prosecutor summarized several pretrial statements made by the victim pertaining to the confrontation, including his call to 911, his police interviews, and his preliminary hearing testimony. After summarizing these statements, the prosecutor stated: "[The victim] testified pretty much the exact same [at trial] as he did at the preliminary hearing ... because if he would have testified different [sic], you would have heard a lot of impeachment. [T]hat transcript would have been up there and he would have been reading from it, and [defense counsel] would have been asking quite a few questions." Harrell claims these statements were improper because they purported to shift the prosecution's burden of proof to Harrell. (People v. Cortez (2016) 63 Cal.4th 101, 130 [" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation].' "].) We disagree.
Standing in isolation, the statements themselves did not mention the burden of proof. Nor did the statements imply the defense had a duty to produce affirmative evidence of innocence. Instead, they conveyed only that the defense likely would have impeached the victim if his pretrial statements and trial testimony were inconsistent with one another. There was nothing improper with the prosecutor's statements.
Harrell's argument is even less convincing when the statements are read in context. Throughout closing arguments, the prosecutor correctly informed the jury the prosecution carried the burden of proof. At the outset of the argument, for instance, she stated, "I have the burden of proof ...." She later said: "[M]y burden of proof in the case[ is] beyond a reasonable doubt.... It's always beyond a reasonable doubt." When discussing the attempted murder charge, she again stated the correct burden of proof: "The attempt murder. There's two things that I have to prove beyond a reasonable doubt."
Based on the foregoing, we conclude there is no reasonable likelihood the jury would have misunderstood the prosecutor's statements in the manner Harrell contends.
4
Impugning of Defense Counsel
During closing arguments, defense counsel stated to the jury that the evidence demonstrated the victim was the aggressor in the confrontation. Then, after defense counsel concluded his argument, the prosecutor began her rebuttal argument with the following statement: "In law school they teach us a couple things. One is if the facts are on your side, argue the facts. If the law's on your side, argue the law, and if you have neither, blame someone else." She continued: "[The victim] is not on trial here. He is not the defendant in the case. He is a victim." Harrell contends these statements constituted misconduct because they attacked the integrity of defense counsel.
As the People correctly note, Harrell did not object to the allegedly improper statements. Therefore, he has forfeited his appellate challenge to those statements. (People v. Redd (2010) 48 Cal.4th 691, 738 (Redd) [defendant forfeited challenge to statements allegedly denigrating defense counsel]; Seumanu, supra, 61 Cal.4th at pp. 1359-1360 [same].)
In any event, the prosecutor's statements were not problematic. " 'A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.' " (Redd, supra, 48 Cal.4th at p. 734.) However, " '[t]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account.' " (Id. at p. 735.) Here, the prosecution " 'simply used colorful language to permissibly criticize counsel's tactical approach' " of attributing blame for the confrontation on the victim. (People v. Huggins (2006) 38 Cal.4th 175, 207.) " 'These comments were explicitly aimed at counsel's closing argument and statement[s], rather than at him personally. We see no improper attack on counsel's integrity.' " (Ibid.; see People v. Powell (2018) 6 Cal.5th 136, 184 [prosecutor's statement that defense counsel was "trying to shift the blame" was a "proper comment"].)
E
Judicial Misconduct
Next, Harrell contends the trial court demonstrated bias against him and in favor of the prosecution in violation of his rights to due process and a fair trial. He cites eight instances of alleged misconduct, arguing the court impermissibly: (1) overruled a meritorious defense objection to the admission of photographs showing blood spatter in the victim's apartment; (2) overruled a meritorious defense objection to irrelevant testimony provided by the police detective assigned to the stabbing; (3) sustained a meritless prosecution objection during the defense's cross-examination of the detective; (4) failed to instruct the jury on the prosecution's allegedly untimely disclosure of evidence; (5) interrupted the defense's cross-examination of one witness to permit the prosecution to call another witness out of order; (6) admonished Harrell during his testimony; (7) allowed the prosecution to improperly impeach Harrell; and (8) excluded Harrell from the courtroom during the bench trial on his prior convictions.
Harrell also contends the court engaged in judicial misconduct when it ordered a second bailiff to be stationed in the courtroom. As discussed ante, we conclude the court acted within its discretion when it ordered the stationing of a second bailiff.
" '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" [citation]. "[O]ur role ... is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the party] a fair, as opposed to a perfect, trial." ' " (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 536-537, citation omitted.) "It is extremely difficult to establish judicial misconduct has risen to the level that requires a new trial." (Id. at p. 536.)
Harrell has not met this high burden. At the outset, we note Harrell did not assert a judicial misconduct objection in the trial court, although he objected to certain of the individual instances of alleged misconduct on other bases. Harrell's failure to object on judicial misconduct grounds forfeits the challenge on appeal. (Seumanu, supra, 61 Cal.4th at p. 1320 ["As a general rule, a specific and timely objection to judicial misconduct is required to preserve the claim for appellate review."]; see also, e.g., People v. Buenrostro (2018) 6 Cal.5th 367, 405 [judicial misconduct argument forfeited]; People v. Farley (2009) 46 Cal.4th 1053, 1110 (Farley) [same].)
Setting forfeiture aside, most of the examples Harrell identifies would not constitute judicial misconduct even if we were to agree the court erred as alleged. Five examples on which Harrell relies (Nos. 1-4 and 7, as listed ante) were evidentiary and instructional rulings. But " '[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.' " (Farley, supra, 46 Cal.4th at p. 1110.) A sixth example (No. 9, as listed ante) "occurred outside the presence of the jury and thus could not have prejudiced defendant." (People v. Woodruff (2018) 5 Cal.5th 697, 770.) Therefore, six of the instances on which Harrell relies could not form the basis of a meritorious judicial misconduct claim.
Finally, as discussed more fully in the following sections, we conclude the trial court did not err—as a matter of state law or otherwise—in making the rulings and comments identified by Harrell. Because the court did not err in making these rulings and comments, we perceive no exercise of bias against Harrell.
1
Photographic Evidence of the Crime Scene
During the investigation of the crime scene, police took photographs of the stairwell of the victim's apartment building and the interior of the apartment. Some of the photographs depicted blood spatter. During trial, the prosecution questioned a police officer about the photographs and moved the photographs into evidence. Harrell asserted a "352" objection, presumably on grounds the probative value of the evidence was substantially outweighed by the probability its admission would create substantial danger of undue prejudice. (Evid. Code, § 352.) The trial court overruled the objection. On appeal, Harrell contends the court erred in admitting the photographs because they were inflammatory and unduly prejudicial.
" ' "The admission of allegedly gruesome photographs is basically a question of relevance over which the trial court has broad discretion. [Citation.] 'A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.' " ' " (People v. Mills (2010) 48 Cal.4th 158, 191.) "That the challenged photographs may not have been strictly necessary to prove the People's case does not require that we find the trial court abused its discretion in admitting them. '[P]rosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case.' " (Ibid.)
The court was well within its discretion in admitting the photographs at issue. The photographs corroborated the testimony of the victim and his physician regarding the seriousness of the victim's injuries. Such testimony was relevant to rebut the testimony of defense witnesses who described certain of the victim's injuries as "superficial." Further, by tending to establish the victim was bleeding heavily, the photographs were relevant to rebut the testimony of Harrell, who claimed he was unaware he had even stabbed the victim. Additionally, photographs depicting blood spatter, while perhaps unpleasant to view, are generally less gruesome and disturbing—and therefore less prejudicial—than photographs of homicide victims our Supreme Court has deemed appropriate for admission. (People v. Ramirez (2006) 39 Cal.4th 398, 409 [affirming admission of photograph depicting victim with her eyes cut out by murderer].)
For all these reasons, we conclude the trial court properly exercised its discretion when it overruled Harrell's objection to the photographs at issue.
2
Admissibility of Testimony Regarding Defense Investigation
Prior to trial, Harrell retained an expert to inspect Harrell's bicycle. Because police impounded the bicycle, defense counsel and the expert inspected the bicycle at the police station in the presence of the police detective assigned to the matter. During trial, Harrell moved to preclude the prosecution from eliciting testimony from the detective regarding the defense team's inspection of the bicycle on grounds the testimony would be irrelevant, among other reasons. In response, the prosecution argued the testimony was relevant due to the possibility Harrell might argue the prosecution's own inspection of the bicycle was shoddy. The court deferred ruling on whether the testimony would be admissible during rebuttal, but sustained the objection for purposes of the prosecution's case-in-chief. On appeal, Harrell incorrectly states the trial court ruled the detective "would be allowed to testify" about the defense's examination of the bicycle during rebuttal and contends the ruling was in error.
Harrell mischaracterizes the record. The trial court did not conclude the detective "would be allowed to testify" about the defense team's inspection of the bicycle. Rather, it sustained the defense's objection for purposes of the prosecution's case-in-chief and deferred ruling on the objection for rebuttal purposes, as follows: "Let's see how it plays out from cross-examination and their—the presentation of the defense case and then we can revisit that." It later reiterated its deferral ruling: "After [the defense] case, we'll talk about it outside the presence of the jury. If [the prosecutor] still wants to bring that up, we'll address it outside the presence of the jury, but she is not allowed to bring it up during her case-in-chief." The trial court's mere reservation of a ruling was neither erroneous nor a reflection of judicial bias.
3
Improper Lay Testimony
During the cross-examination of the police detective, defense counsel asked the detective whether the testimony and pretrial statements of several witnesses was consistent with the physical evidence at the scene of the crime. For instance, he asked the detective the following question: "The fact that there's a trail of blood leading from the door to the street or from the street to the door is inconsistent with [the victim's] statement that the altercation occurred just at the door of the building, right?" The prosecution objected to this question and similar questions on grounds they called for speculation and were irrelevant and argumentative. The trial court sustained the objections. On appeal, Harrell contends the questions were permissible because they merely sought to elicit the detective's lay observations regarding the crime scene.
"Lay opinion about the veracity of particular statements by another is inadmissible on that issue. [T]he reasons are several. With limited exceptions, the fact finder, not the witnesses, must draw the ultimate inferences from the evidence. Qualified experts may express opinions on issues beyond common understanding [citations], but lay views on veracity do not meet the standards for admission of expert testimony.... [A] lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence [citation], nor does it bear on any of the other matters listed by statute as most commonly affecting credibility [citation]. Thus, such an opinion has no 'tendency in reason' to disprove the veracity of the statements." (People v. Melton (1988) 44 Cal.3d 713, 744, citations omitted; see People v. Zambrano (2004) 124 Cal.App.4th 228, 240.)
Applying these standards, we conclude the trial court correctly sustained the prosecution's objections. From our review of the record, it is apparent Harrell did not pose the questions at issue to elicit testimony from the detective regarding the layout or characteristics of the crime scene. Rather, they served no purpose other than to elicit the detective's inadmissible lay opinion regarding the veracity of the prosecution's witnesses. Such testimony would have invaded the province of the jury as the ultimate fact finder, would not have constituted properly founded character or reputation evidence, and would not have been relevant to any issue in the case.
4
Failure to Instruct the Jury on Late Discovery
Prior to the stabbing, the victim suffered a criminal conviction in another state and was incarcerated. On the day of the victim's testimony, the prosecutor met with the victim and he informed her that his criminal conviction was not a felony conviction, as the prosecutor previously understood. He told the prosecutor he instead served a split sentence for the conviction. The prosecutor immediately disclosed the victim's statements and the meeting to defense counsel. Based on this disclosure, Harrell requested a jury instruction that the prosecution failed to timely disclose evidence (CALCRIM No. 306). The court denied the request on grounds the disclosure was timely and Harrell had not demonstrated prejudice from the timing of the disclosure.
CALCRIM No. 306 provides in pertinent part as follows: "Untimely Disclosure of Evidence [¶] Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: <describe evidence that was not disclosed> [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."
We agree with the trial court on both counts. There was no late disclosure here, as the prosecutor immediately disclosed to defense counsel the meeting and the information she learned from the victim. (§ 1054.7 "[If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown ...."]; People v. Mora and Rangel (2018) 5 Cal.5th 442, 468 [discovery statutes not violated because, "as soon as the prosecution learned of various late-disclosed documents, they were made available to the defense"].) Further, Harrell has not articulated any discernable prejudice, given that he was already aware of the case number and date of the victim's conviction, and thus had the information necessary to cross-examine the victim about the topic. For both reasons, we conclude the trial court properly refused to give the late disclosure jury instruction.
5
Out-of-Order Witness
Midway through the defense's cross-examination of the victim, the prosecution notified the court that one of its witnesses—the physician who treated the victim for his injuries—was unavailable to testify as planned. The physician became unavailable because he was called to perform a potentially life-saving surgery for a patient. He was also unavailable to testify later in the trial due to a preplanned family vacation. Therefore, the prosecution requested permission to call the physician out of order notwithstanding the pendency of the cross-examination of the victim. The court granted the request. Harrell contends the ruling "interrupted the flow" of his cross-examination of the victim, "disadvantaged the defense," and "favored the prosecution."
"Code of Civil Procedure section 607 prescribes the order of proceedings at trial, 'unless the court, for special reasons otherwise directs.' Evidence Code section 320 states that the court has the discretion to regulate the order of proof: 'Except as otherwise provided by law, the court in its discretion shall regulate the order of proof.' Accordingly, we generally review a trial court's ruling as to the order of proof at trial for abuse of discretion." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1413 (Rayii).)
We conclude the court did not abuse its discretion in granting the prosecution's request to call the physician out of order. The court was presented with three less-than-ideal options—(1) permit the prosecution to call the physician out of order; (2) compel the physician to reschedule a potentially life-saving surgery; or (3) compel the physician to reschedule a vacation scheduled for the following week. Given these options, the determination to permit an out-of-order witness did not amount to an abuse of discretion. (Rayii, supra, 218 Cal.App.4th at p. 1413 [no abuse of discretion where court allowed out-of-order witness "to avoid having to continue the trial date, force the witnesses to cancel their vacation plans or forego their testimony"].) Further, we discern no prejudice from the case management order. The physician quickly completed his testimony and the cross-examination of the victim resumed—and finished—the same afternoon. The court's order was not erroneous and it was not misconduct.
6
Instruction to Harrell to Answer Questions
During his direct examination, Harrell testified about his work experience and an apprenticeship he had with a construction association. Then, during the prosecution's cross-examination of Harrell, the following colloquy ensued: "Q. [Y]ou told us from the year 2000 and 2003, you attended a general contracting school ... is that right? [¶] A. Associated General Contractors. [¶] Q. When—when did you start that? What month in 2000? [¶] A. I don't know when I started. All I remember is, all you got to do is call—call up the school, get the records, and they'll tell you that I graduated in 2003. [¶] . . . [¶] Q. So before you were very sure that you went from 2000 to 2003, but now you're not sure if it was 2000; is that what you're saying? [¶] A. That has nothing to do with this case. All you got to do, if you think I'm lying, call the school and get my certification. I'm certified union carpenter in the State of California. [¶] The Court: Mr. Harrell, just answer the question. [¶] The Witness: I did."
Shortly after, the following colloquy occurred: "Q. [Y]ou gave a lot of history about you becoming a carpenter, a journey carpenter, becoming a part of the union after 2003. I'm trying to get down when you worked last. When did you work that job? [¶] A. I worked several jobs. You're trying to get me to lie, that's what you're trying to do, but I'm not going to do that. [¶] Q. I'm just asking you when you actually worked this job. [¶] A. You should call the union and get the phone number and get their records, and they'll tell you themselves. [¶] The Court: Answer the question. [¶] The witness: I just did."
In a subsequent sidebar, defense counsel objected to the court's admonitions to Harrell on grounds that he already "answered the question[s]" and the court's instruction suggested to the contrary. The court replied, "[w]hen a witness tells an attorney to go do something and look something up is not answering the question." On appeal, Harrell claims the trial court "inserted" itself into the prosecution's cross-examination in a biased manner and improperly conveyed to the jury that Harrell was acting obstinately.
We conclude the court's admonitions were proper. As the People correctly note, Harrell provided nonresponsive and combative testimony when he told the prosecutor to "call the school" and "call the union" if she wanted her questions answered. The court did not make discourteous, unnecessary, or value-laden comments in the presence of the jury regarding Harrell's testimony. Rather, it exercised necessary and appropriate control over the interrogation by succinctly admonishing Harrell to answer the questions. (Evid. Code, § 765, subd. (a) ["The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be ...."].) The court's admonitions were proper and, therefore, did not reflect an impermissible exercise of judicial bias.
7
Mistrial Motion
During pretrial proceedings, the prosecution filed a motion in limine for permission to elicit evidence regarding Harrell's character for violence or trait of character for violence if evidence were elicited at trial regarding the victim's character for violence or trait of character for violence. (Evid. Code, § 1103, subd. (b).) During the hearing on its motion, the prosecution stated outside the presence of the jury that Harrell was the subject of restraining orders arising from acts of violence against his wife and girlfriend. The court ruled it would follow Evidence Code section 1103 and Harrell's "[o]ther acts of violence may come in depending on what is introduced" at trial.
During the defense's direct examination of Harrell, Harrell testified he had "a lot of marital problems" with his wife and described a confrontation he had with her. He stated, "I don't beat my wife, period." (Italics added.) Shortly after, defense counsel asked him whether he moved out of his residence after the confrontation and he responded: "Well, no, actually what happened was she got vindictive and put a restraining order against me at my own residence, but she can't live there without me 'cause I'm the one that paid the rent. She don't—she didn't have a job and so the case got dismissed. It was no case. They—they said it was domestic violence. I never went to jail for it ...." (Italics added.) Also during the direct examination, Harrell testified, "I don't hit—I don't hit women, period ...." (Italics added.)
During the prosecution's cross-examination of Harrell, the following colloquy occurred: "Q. [Y]ou made the comment[,] 'I don't hit women, I just don't.' That's not really true, is it? A. Well, I have four daughters. I wouldn't appreciate nobody putting their hands on my—my girls so. And if you're trying to refer to my wife, you know, I don't know what you—I don't know what you're trying to get at, but I have never beat on my wife, and I have never hit her, period. And I have never been convicted of any domestic violence, period." (Italics added.) Shortly after, the following exchange occurred: "Q. You talked about that [your wife] was vindictive when she got a protective order against you; do you remember saying that? A. Yes, I mean, if I said it, that's what I meant when I said it. If I said that, yes. Q. And the protective order was actually an order of protection for domestic violence that she got against you back in 2016, right? A. No, it wasn't...."
In a subsequent sidebar, defense counsel moved for a mistrial on grounds that the prosecution's questions constituted improper impeachment testimony. The court denied the motion, reasoning Harrell "opened the door for [the prosecutor] to cross-examine him about that." Harrell challenges the order denying his motion for a mistrial.
"There is little doubt exposing a jury to a defendant's prior criminality presents the possibility of prejudicing a defendant's case and rendering suspect the outcome of the trial." (People v. Harris (1994) 22 Cal.App.4th 1575, 1580.) However, the prosecution did not initiate the discussion of Harrell's prior misconduct. Rather, he volunteered the information himself when he testified he didn't "beat [his] wife," his wife "put a restraining order against" him, "they said it was domestic violence," and he didn't "hit women, period." This testimony opened the door to the topic of his history of violence, which the prosecution was permitted to explore on cross-examination. (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946 ["[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony."]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1147 [denial of mistrial proper where defendant "opened the door to ... inquiry concerning his admitted drug use"].) As such, the court did not abuse its discretion in denying the motion for a mistrial.
8
Exclusion from Courtroom
Following closing arguments, defense counsel informed the court that Harrell would like to be present for the remainder of the proceedings. In response, the court commented, "Well, we'll see if [jury questions are] something that requires his presence." Harrell then spoke directly to the court as follows: "The Defendant: It does. [¶] The Court: I'm—[¶] The Defendant: It does require my presence. [¶] The Court: Huh? [¶] The Defendant: It's my life, man. What, you mean to tell me you think I trust her or I trust her? I want to be up here—[¶] The Court: Quiet. [¶] The Defendant:—when anything goes on up here—[¶] The Court: Quiet. Quiet. [¶] The Defendant:—or anything happens in the courtroom. [¶] The Court: Remove him out of the courtroom. [¶] The Defendant: You think you gonna railroad me? If a question's asked, I want to be here. [¶] The Court: Leave. Leave. [¶] The Defendant: Shit. Shit. Kangaroo-ass court." The court then halted further proceedings for the day.
The following day, the court convened a bench trial concerning the allegations of Harrell's prior convictions, which Harrell attended. At the outset of the hearing, defense counsel asserted and the court denied a peremptory challenge under Code of Civil Procedure section 170.6. Immediately thereafter, Harrell spoke directly to the court: "The Defendant: She gonna violate my rights all the way through, huh? [¶] The Court: One more word out of you and you are gone. [¶] The Defendant: I don't care. [¶] The Court: He's out. [¶] The Defendant: Huh? [¶] The Bailiff: Come this way. [¶] The Defendant: I'm goin' to the Ethical Judicial Board. I'm gonna file a Complaint on your ass too. There ain't no honorable about you. You're a kangaroo judge, and you got this—you and [the prosecutor's] in cahoots with this. God don't like ...." Harrell was removed from the courtroom and remained absent for the remainder of the bench trial.
Harrell contends the court violated his state and federal rights to be present at each critical stage of the criminal proceedings when it removed him from the courtroom. We disagree. "Under the federal and state constitutions, 'a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.' " (People v. Bell (2019) 7 Cal.5th 70, 117; see also § 1043, subd. (b)(1).)
As noted ante, Harrell exhibited disruptive behavior throughout the trial, including by acting in a confrontational manner with bailiffs, making noises and visibly reacting during the court's rulings, and yelling the court was "stackin' up the deck against" him. Following one of the disruptions, the court warned Harrell he would be removed and subsequently removed him when he continued his misconduct. Although he was later permitted back into the courtroom, he again interrupted proceedings by cursing at the court and lambasting it for its purported partiality. He interrupted courtroom proceedings again the following day by stating in open court that the court was violating his rights. Despite a warning he would be removed, Harrell continued his interruption.
Given Harrell's history of disorderly conduct and the repeated warnings he received from the trial court, we conclude the court's order removing Harrell from the courtroom did not violate his right to be present at the critical stages of his case. (People v. Welch (1999) 20 Cal.4th 701, 773 [court did not violate defendant's right to be present at his trial where defendant exhibited disruptive and belligerent behavior]; People v. Sully (1991) 53 Cal.3d 1195, 1239, 1240-1241 [defendant waived his right to remain in the courtroom by "hurling obscenities at the court and jurors"].)
F
Ineffective Assistance of Counsel
Harrell contends his trial counsel was ineffective to the extent he failed to object to the asserted instructional error, prosecutorial misconduct, and judicial misconduct. We reject this claim. As previously noted, most of the objections trial counsel did not assert would have been meritless. (People v. Kipp (1998) 18 Cal.4th 349, 377 ["[F]ailure to assert a meritless defense does not demonstrate ineffective assistance of counsel."].) As further noted, it is not reasonably probable the outcome of the proceeding would have differed had trial counsel asserted the remainder of the objections Harrell has identified. (People v. Caro (2019) 7 Cal.5th 463, 514-515.)
G
Cumulative Prejudice
Harrell claims the cumulative effect of the assigned errors in his trial rendered the trial fundamentally unfair. "We have rejected nearly all of defendant's assignments of error, and when we have determined that the trial court erred, we have concluded that the error did not result in prejudice to defendant. Even considered collectively, the errors were not significant." (People v. Bradford (1997) 15 Cal.4th 1229, 1382.) On these grounds, we conclude Harrell was not denied his right to a fair trial.
H
Senate Bill No. 136
At the time of Harrell's sentencing, section 667.5, subdivision (b) required courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant served a separate prior prison term and did not remain free of custody for at least five years. Subsequently, the Governor signed into law Senate Bill No. 136, effective January 1, 2020, which amended section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) As amended, section 667.5, subdivision (b) provides that the prior prison term enhancement applies only to prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). "Senate Bill No. 136's (2019-2020 Reg. Sess.) amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date." (People v. Jennings (2019) 42 Cal.App.5th 664, 682 (Jennings); see People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [applying Senate Bill No. 136 retroactively to case on appeal].)
We directed the parties to submit supplemental briefing regarding the application, if any, of Senate Bill No. 136 to the present case. In response, both parties filed briefs agreeing the prison terms giving rise to Harrell's prior prison term enhancements did not result from convictions for sexually violent offenses and, therefore, cannot form the basis for enhancements under section 667.5, subdivision (b), as amended. Both parties also agreed Harrell's case is not final, Senate Bill No. 136 applies retroactively to Harrell's case, and the prior prison term enhancements imposed in Harrell's case must be stricken. We concur. (Jennings, supra, 42 Cal.App.5th at p. 682.)
In his supplemental brief, however, Harrell contends we should strike the prior prison term enhancements and reduce his punishment without remanding the matter to the trial court. He contends remand is unwarranted because the trial court would have no discretion whether to strike the enhancements. We disagree with the premise of Harrell's argument. During resentencing, the court is not limited to consideration of whether to strike invalid portions of a sentence. Rather, " 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) "The court may, for example, impose an upper-term punishment when the middle term had previously been imposed." (People v. Cortez (2016) 3 Cal.App.5th 308, 316.) " 'This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.' " (People v. Garner (2016) 244 Cal.App.4th 1113, 1118.) Consistent with these principles, we deny Harrell's request to reduce the punishment without remand to the trial court.
IV
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court for resentencing consistent with the opinions expressed herein. In all other respects, the judgment is affirmed.
McCONNELL, P.J. WE CONCUR: AARON, J. GUERRERO, J.