Opinion
A148545
05-25-2017
THE PEOPLE, Plaintiff and Respondent, v. CLAYTON JEROD JAMES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1500242)
Defendant Clayton Jerod James appeals from a judgment after jury trial. He contends the trial court abused its discretion by denying in part his motion under Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike his two prior "strike" convictions, the court having stricken only the latter conviction. We conclude the trial court did not abuse its discretion.
All further statutory references are to the Penal Code.
Defendant further contends that the trial court incorrectly calculated his local conduct credits by awarding him only 72 days under section 2933.1 rather than 240 days under section 4019, and that the abstract of judgment incorrectly described one of his convictions. The People agree. We conclude defendant is correct that the trial court should have calculated his local conduct credits under section 4019 and that one of his convictions was incorrectly described in the abstract of judgment. We vacate the judgment to the extent it awards 72 days of local conduct credits and remand this matter to the trial court with the instruction that it award the local conduct credits defendant is entitled to receive under section 4019. The trial court should modify the abstract of judgment to reflect this amount and to correctly describe defendant's convictions. We otherwise affirm the judgment.
BACKGROUND
I.
The Charges Against Defendant
In October 2015, the Humboldt County District Attorney filed an amended information charging defendant with six counts of criminal misconduct arising out of an incident that occurred on January 13, 2015, and alleging certain sentence enhancements. The six counts were: attempted willful, deliberate and premeditated murder and intentional discharge of a firearm against Quanah Mitch Benally (§§ 664, 187, subd. (a); count one); assault with a semi-automatic firearm with use and discharge of a firearm against Benally (§ 245, subd. (b); count two); assault with a semi-automatic firearm with use of a firearm against Niola Anita Lechuga (id., subd. (b); count three); attempted robbery with use of a firearm against Lechuga (§§ 664, 211; count four); shooting at an inhabited dwelling (§ 246; count five); and possession of a firearm by a felon (§ 29800, subd. (a)(1); count six).
The sentence enhancement allegations included for counts one through four that defendant had suffered a prior serious felony (§ 667, subd. (a)(1)); for all counts that defendant had suffered prior serious or violent felony, or "strike," convictions (id., subds. (b)-(i)) for manslaughter in 1991 and for assault with a deadly weapon in 1999; and for all counts that defendant had served a prior prison term (§ 667.5, subd. (b)) for a 2010 possession of a controlled substance for sale conviction.
A jury trial was held. The evidence presented indicates that on January 13, 2015, Lechuga called the Hoopa Tribal Police Department and reported that defendant had just tried to shoot her, held a gun to her head and shot at her husband, barely missing him, outside their home. Officer Tismal Matilton was dispatched to the scene. He spoke to Lechuga and her husband, Benally, outside their mobile home. After talking to them, Matilton located defendant at about 9:30 p.m. driving a Nissan pickup truck. Matilton stopped defendant and observed that a woman whom he identified at trial as "Kassi McKinnon," was in the truck's passenger seat. Matilton conducted a pat search of defendant and found nothing, put defendant and McKinnon in the back of his police vehicle, searched the truck and found a live nine-millimeter round in the center console.
McKinnon's full name was Kassi Ann McKinnon Lyons. For consistency's sake we refer to her as "McKinnon" and mean no disrespect by doing so.
Matilton released McKinnon and took defendant to the police station. Matilton left defendant in the vehicle while he completed some paper work inside the station. He then pat searched defendant again and took him to the jail. Later that day, Matilton found a gun sticking out from behind the driver's seat of his police vehicle, a live nine-millimeter round next to the rear door seal and four live nine millimeter rounds and a pistol magazine underneath the back seat. Matilton had seen nothing on the back seat when he checked at the start of his shift and he had not arrested anyone else that day.
Lechuga testified that around 5:00 or 6:00 p.m. on the day of the incident, she walked to her home after being dropped off nearby and went inside. She noticed a red Nissan truck in her driveway and went inside her home. Benally, their two children and a woman who she identified at trial as "Frannie Ferris" were there. Lechuga went back outside, where she saw defendant and McKinnon inside the truck. Defendant got out holding what seemed to be a toy gun; Lechuga and he approached each other and she asked "why he was there, and things like that." They "said a lot of things back and forth," but she could not remember what they said. She recalled defendant waving the gun in his hand and saying a couple of times something like, " 'I told you to be nice to me,' " but he did not threaten or attempt to harm her in any way. At some point she realized it was a real gun and became scared.
Ferris's full name was Frances Ellen Ferris Billy. For consistency's sake we refer to her as "Ferris" and mean no disrespect by doing so.
Ferris came outside and told defendant she wanted to go. Lechuga walked to her car, also parked in the driveway. Her husband was standing on their porch and asking who was there. There was some "guy talk" and "acting tough" between Benally and defendant. Lechuga was getting into her car when she heard a gunshot. Benally later told her that defendant had braced his arm on the car window and aimed his gun at Benally, but she did not have personal knowledge of this. She saw defendant in the driver's seat as the truck pulled out of the driveway.
Lechuga called the tribal police and spoke to Matilton later that evening. Matilton later showed her a gun that she thought "kind of look[ed]" like the one defendant had displayed to her. Although shortly after the incident, she may have said something about defendant and her backpack, defendant did not go near her backpack. She told the tribal police that she saw defendant shoot the gun because she did not want anything else to happen that night. She also testified at the preliminary hearing that she saw defendant use the truck window to aim at Benally and shoot, but testified at trial that she had based this not on what she saw, but on what Benally had told her.
The defense called McKinnon and Ferris as witnesses. McKinnon testified that she and defendant were romantically involved for almost a year, but that she had last seen defendant on the day of the incident and had not spoken to him in the year before the trial. On the day of the incident, she, defendant and Ferris went in a red Nissan pickup truck to Lechuga and Benally's home and Ferris went inside to get methamphetamine for them. At times, McKinnon had purchased methamphetamine once or twice a week from Lechuga or Benally and smoked it with defendant. Ferris knocked on the door of the home, spoke briefly to someone through the door, came back and got into the truck.
McKinnon testified that Lechuga then pulled up in a vehicle, came over to the driver's side of the truck and spoke to defendant for two or three minutes about trading a gun for drugs. McKinnon saw James hold a gun in his hand. Later, she heard a gun go off, but she did not see who fired it. Benally came out and yelled about the gun going off. McKinnon saw that defendant's arm was crooked and outside the vehicle, and saw defendant bring the gun back into the vehicle. Benally seemed upset, "there were some words spoken," and McKinnon, defendant and Ferris "ended up having to leave," but intended to come back later.
Ferris testified that she had previously been involved with defendant, had two children with him and remained friendly with him. At the time of trial, she was serving a prison term for assault with a firearm and possession of a firearm convictions. She testified that on the day of the incident, she, McKinnon and defendant drove in a pickup truck to Lechuga and Benally's home to buy drugs from Benally, which Ferris had done "numerous times" before. When they arrived, Ferris went inside the home and spoke to Benally for a couple of minutes and found out he did not have any methamphetamine available. Lechuga came in and Ferris went back to the truck, where defendant was standing by the driver's side. Lechuga came outside. Defendant asked her twice for "a $12 sack" and she said each time that she needed to "weigh up her dope," meaning "portion it out" into specific quantities.
Ferris testified that she heard a "pop" at one point, after which Benally came out onto the porch of his home. Neither defendant nor Lechuga said anything, and Ferris did not remember if Benally said anything. Ferris said "let's go." Neither Lechuga nor Benally seemed upset. Ferris did not see a gun, know there was a gun in the truck, think defendant tried or threatened to shoot anyone that night, see defendant aim and point a gun at Benally and try to kill him or see defendant try to take Lechuga's backpack.
The jury found defendant guilty of assault with a semi-automatic firearm against Lechuga (count three); grossly negligent discharge of a firearm (a lesser included offense of the crime charged in count five); and possession of a firearm by a felon (count six). It found him not guilty of all the other counts and lesser offenses.
Defendant admitted to having one prior felony conviction for purposes of a five-year sentence enhancement, one prior prison term and two prior serious felony, or "strike," convictions, one in 1991 for manslaughter and one in 1999 for assault with a deadly weapon. He moved under section 1385 and Romero (Romero motion) for the trial court to strike both strike convictions. The trial court struck defendant's 1991 conviction but not his 1999 conviction. It then sentenced defendant to a total prison term of 25 years and four months, consisting of nine years for assault with a semi-automatic firearm (count three), doubled to 18 years based on defendant's strike conviction; a consecutive term of eight months, doubled to one year and four months, for grossly negligent discharge of a firearm (the lesser included of count five); six additional years for sentence enhancement allegations; and a concurrent term of six years based on the finding that his possession of a firearm (count six) arose out of the same set of operative facts as the other counts.
The trial court also imposed certain fines and fees. Further, it awarded defendant 552 days of actual custody and local conduct credits, consisting of 480 days for actual time served and 72 days for local conduct.
Subsequently, defendant filed a timely notice of appeal.
DISCUSSION
I.
The Trial Court Did Not Abuse Its Discretion in Ruling on Defendant's Strike Motion.
As we have discussed, defendant admitted that in 1991 he was convicted of voluntary manslaughter and that in 1999 he was convicted of assault with a deadly weapon, each of which constituted a prior "strike" conviction pursuant to section 667.5, subdivisions (b) to (i). He argues the trial court abused its discretion in denying in part his Romero motion by striking only his 1991 conviction, but not his 1999 conviction. We disagree.
A. The Relevant Proceedings Below
In his Romero motion, defendant argued that the trial court should strike both his prior strike convictions under section 1385 and Romero because his maximum potential overall sentence was a lengthy 10 years and four months, meaning he would not be released until he was in his mid-fifties, when he was less likely to re-offend; his current offense of assault with a firearm was of a "relatively minor nature," based essentially on his display of a pistol to Lechuga; and defendant was outside the spirit of the "Three Strikes" law, given that his two prior strike convictions were 15 and 24 years in the past and committed when he was still in his twenties. Just before the sentencing hearing, defendant also submitted eight letters of support, including several from family members.
Section 667, subdivisions (b) to (i), passed by the Legislature, and section 1170.12, enacted as part of Proposition 184 in 1994, are collectively referred to as the "Three Strikes" law. (People v. Vargas (2014) 59 Cal.4th 635, 638, & fns. 1, 2.)
The People opposed defendant's Romero motion on the grounds that his grossly negligent discharge of a firearm was a serious felony under the Three Strikes Law, his circumstances were not extraordinary, and striking the prior strikes would not be in the furtherance of justice, particularly given defendant's extensive criminal history, which included convictions after 1999, such as for corporal injury on a spouse or co-habitant, possession of controlled substances for sale and battery.
The court heard argument on defendant's motion and announced its decision to strike defendant's 1991 voluntary manslaughter conviction, but not his 1999 assault with a deadly weapon conviction. The court indicated it was making its decision as to whether he was outside the spirit of the Three Strikes law in whole or in part "in light of the nature and circumstances of the defendant's present felony conviction and the prior serious and/or violent felony convictions and the particulars of his background, character and prospect[s]." It then discussed numerous factors it had considered. These included the substantial time that had passed since defendant's prior strike convictions; that since the last strike conviction defendant had one drug-related felony conviction and six misdemeanor convictions; that his prior strike convictions involved violence and at least the 1999 conviction involved use of a weapon; that the prior strike convictions did not involve a single aberrant period of behavior nor arise from a single act; that one prior strike conviction occurred before the enactment of the Three Strikes law and one after; that before the present case defendant had three felony convictions and six misdemeanor convictions and two of the misdemeanors involved crimes of violence; that defendant had violated parole multiple times but did not have any probation violations; that he had a lengthy criminal career that involved very serious crimes, followed by a series of crimes that were mostly misdemeanors, and had now committed another serious crime; that he had a history of violence, including his convictions since 1999 for corporal injury on a spouse or co-habitant under section 273.5, misdemeanor assault conviction, and the present offense; that the present offense was a violent crime involving a firearm; that the present offense involved more than de minimus conduct and directly involved a victim; that defendant was 44 years old, had family support and was in good health; that defendant was willing to engage in a rehabilitation program; and that it was "not likely [defendant was] not going to reoffend," although it was "certainly possible" he would not. The court referred to numerous other factors for which there was no information before the court, and to the factors for mitigation and aggravation found in the California Rules of Court. (See Cal. Rules of Court, rules 4.421 [circumstances in aggravation], 4.423 [circumstances in mitigation].)
The court concluded, "I think the primary factors are the age of the priors, the conduct in between, and the nature of the current offense and how serious it was in the overall scheme of things. And not to minimize because I consider all of the factors, I think he would be deemed to be outside the spirit of the Three Strikes Law, not in whole but in part. [¶] And given all of those factors, what I am going to do is strike for sentencing purposes the oldest of the two prior strikes, leaving in place the conviction of the more recent of the prior strikes."
B. The Relevant Law
There is a "legislative presumption that a court acts properly when it sentences a defendant in accordance with the three strikes law." (People v. Carmony (2004) 33 Cal.4th 367, 376.) However, a trial court has the discretionary authority to strike one or more prior strike convictions "in furtherance of justice." (§ 1385; Romero, supra, 13 Cal.4th at p. 504.) In deciding whether to strike a prior conviction, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
"Thus, the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court 'concludes that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.' . . . [¶] In this light, extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack. 'Where strict adherence to a statute's plain language also furthers its statutory purpose, such an interpretation can be safely said to effectuate its legislative intent.' And longer sentences for career criminals who commit at least one serious or violent felony certainly goes to the heart of the statute's purpose—or spirit." (People v. Strong (2001) 87 Cal.App.4th 328, 337-338, fn. omitted; see also People v. Finney (2012) 204 Cal.App.4th 1034, 1040 ["Once a career criminal commits the requisite number of strikes, the circumstance must be 'extraordinary' before he can be deemed to fall outside the spirit of the three strikes law"].)
We review a trial court's decision not to strike a prior strike conviction for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 375.) " 'The burden is on the party attacking a sentence [imposed for a criminal conviction] to clearly show that the sentencing decision was irrational or arbitrary.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 971.) " '[W]here the record demonstrates the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, [a reviewing court] shall affirm the trial court's ruling, even if [it] might have ruled differently in the first instance.' " (Carmony, at p. 378.)
C. Analysis
The trial court did not abuse its discretion in deciding defendant was only in part outside the spirit of the Three Strikes law and striking only the older of defendant's two prior strike convictions. The trial court's extensive explanation of its reasoning at the hearing makes plain that it balanced the relevant factors and reached an impartial decision in conformity with the spirit of the law.
Rather than show otherwise, defendant mostly repeats his trial court arguments. In other words, he does not meet his burden of showing the trial court's ruling was irrational or arbitrary, but instead asks that we re-weigh the evidence. He argues that the relative severity of his sentence, the alleged absence of violence in the commission of his current offense, the age of his prior strike convictions, and the support of his family and community place him outside the spirit of the Three Strikes law. The record indicates the trial court considered all of these factors in making its ruling and found they did not place him completely outside the spirit of the Three Strikes law in light of all of the relevant factors before it. This is all that was required of the court.
Defendant does not contend that the trial court had no legitimate basis for its decision and, plainly, it did. Among other things, the court appropriately considered that defendant's present offenses of assault with a semi-automatic firearm and grossly negligent discharge of a firearm were serious felonies, since they involved his personal use of a firearm, that his prior strikes involved serious and violent crimes, that defendant's criminal history was extensive and included his commission of violent crimes in the years between his last strike conviction and the current offense (see People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [noting that "[w]here, as here, the defendant has led a continuous life of crime after the prior, there has been no 'washing out' and there is simply nothing mitigating about a 20-year-old prior"]), and that this history indicated that it was unlikely that he would not re-offend. The court had ample bases for its decision and did not abuse its discretion. Defendant's argument to the contrary is without merit.
Under section 1192.7, subdivision (c)(8), "any felony in which the defendant personally uses a firearm" is a "serious felony" for purposes of the Three Strikes law. (§ 667, subd. (d)(1); see also People v. Leslie (1996) 47 Cal.App.4th 198, 201-202 [willful discharge of a firearm in a grossly negligent manner is a serious felony within the meaning of section 1192.7].)
II.
The Judgment Should Be Modified Regarding Local Conduct Credits.
Defendant next argues the trial court erred in awarding him presentence local conduct credits limited to 15 percent of his presentence custody time, or 72 days, under section 2933.1, rather than awarding him local conduct credits for half of his 480 days spent in custody, or 240 days, under section 4019. The People agree. The parties are correct that section 4019, not 2933.1, applies to defendant's circumstances.
Defendant refers to "presentence custody" credits in his brief. We refer to "local conduct" credits, the term used in the abstract of judgment.
As the parties also agree, defendant may raise this issue for the first time on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428 and fn. 8 [when other issues are litigated on appeal, a party is not required to first file a motion in the trial court to raise a presentence credit issue on appeal].)
Section 2933.1, subdivision (a) provides that a person who is convicted of a felony offense listed in section 667.5, subdivision (c) "shall accrue no more than 15 percent of worktime credit." Section 667.5, subdivision (c) defines "violent felony" for the purposes of that statute by listing certain specific crimes and categories of crimes, none of which apply to defendant's convictions in the present case. Therefore, the court erred in limiting defendant's local conduct credits under section 2933.1.
Section 667.5, subdivision (c)(8) states that a "violent felony" includes "any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55." Although defendant was alleged to have committed the "violent felony" of assault with a semi-automatic firearm with use of a firearm against Lechuga (count three), for which he was convicted, the parties agree this is not a "violent felony" under section 667.5, subdivision (c)(8) because it was not charged and proved within subdivision (a) of section 12022.3, or section 12022.5 or section 12022.55.
Instead, the trial court should have awarded defendant presentence local conduct credits under section 4019. Section 4019, subdivision (a)(4) applies when "a prisoner is confined in a county jail . . . or a city jail . . . following arrest and prior to the imposition of sentence for a felony conviction." A prisoner who meets the requirements outlined in the statute, such as one held under local confinement between arrest and sentencing for four days or longer who has not refused to satisfactorily perform assigned labor and has satisfactorily complied with the reasonable rules and regulations established, should be awarded presentence conduct credits as set forth in section 4019. (§ 4019, subds. (b)-(f).
Minor stylistic or inapplicable changes to section 4019 went into effect on January 1, 2017 (Stats. 2016, ch. 706, § 3) and we are referring here to provisions of a previous version of the statute. These relevant provisions are substantively unchanged.
Under proper circumstances, an appellate court has the authority to modify a judgment to resolve a presentence credits issue. (See People v. Acosta, supra, 48 Cal.App.4th at pp. 427-428.) However, the parties do not establish, and we have not been able to determine from the record, exactly what amount of local conduct credits defendant is entitled to receive under section 4019. Therefore, we shall vacate the judgment to the extent the court awarded defendant 72 days of local conduct credits and remand this matter to the trial court with the instruction that it award the amount of local conduct credits defendant is entitled to receive under section 4019.
III.
The Description of Count Five in the Abstract of Judgment Should Be Modified.
Defendant also points out that the abstract of judgment contains a small clerical error in that it states defendant was convicted of the crime of "Shoot at Inhabited." This is an apparent short-hand reference to the crime of shooting at an inhabited dwelling under section 246, with which defendant was charged in count five of the amended information. Defendant correctly points out, and the People agree, that he was actually convicted of violating section 246.3, subdivision (a) (which is correctly cited in the abstract of judgment's summary of defendant's count five conviction) by his grossly negligent discharge of a firearm, a lesser included offense of shooting at an inhabited dwelling. Accordingly, we also shall order that the abstract of judgment be modified to correct this error.
Defendant mistakenly refers to count three in his appellate brief. --------
DISPOSITION
We vacate that portion of the court's judgment awarding defendant 72 days of local conduct credits and remand this matter to the trial court with the instruction that it award the local conduct credits defendant is entitled to receive under section 4019. The trial court should modify the abstract of judgment to state this calculation under section 4019, replace the description of defendant's conviction in count five as "Shoot at Inhabited" with a proper description of his conviction for the lesser included offense of grossly negligent discharge of a firearm, and forward a copy of this modified abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.