Opinion
F075745
03-19-2019
THE PEOPLE, Plaintiff and Respondent, v. ERNEST LEE RICHARDSON, Defendant and Appellant.
A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF322206)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Ernest Lee Richardson challenges his convictions arising from an attempted rape, arguing his due process rights were violated at trial because the prosecutor engaged in misconduct by: (1) eliciting victim impact evidence during the guilt phase proceedings, (2) asking him "were they lying" questions during cross-examination, (3) arguing the jury should consider his demeanor during trial when he was not testifying, (4) improperly vouching for the credibility of prosecution witnesses, and (5) appealing to jurors for sympathy. He also argues the inclusion of CALCRIM No. 1190, which provides, "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone," reduced the prosecutor's burden at trial in violation of defendant's rights to due process and a fair trial. To the extent any of these issues was waived for the failure to object below, defendant asserts his counsel was ineffective. He also contends the trial court erred in imposing a minimum parole eligibility term for his conviction for assault with intent to commit rape during the commission of a first degree burglary. Finally, he seeks remand to allow the trial court to reconsider sentencing based on newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which ends the statutory prohibition on the trial court's ability to strike a prior serious felony enhancement.
We affirm defendant's convictions and remand to the trial court to set a resentencing hearing to exercise its discretion regarding whether to dismiss the Penal Code section 667, subdivision (a) enhancement.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of August 6, 2015, an intruder broke into Staci's apartment and attempted to forcibly rape her. Staci fought back and the intruder, who was armed with a tire repair instrument, beat Staci. Staci began screaming, yelling for him to stop and yelling for her neighbors. She managed to flee to her next door neighbor's apartment. This neighbor woke up to Staci screaming her name. The neighbor could see someone running to her door outside and knew it was Staci. When the neighbor opened the door, Staci was standing there shaking; Staci had a black eye and was "freaking out." She told the neighbor that a guy had raped her. The neighbor called 911. The neighbor identified defendant at trial as a man she saw staring into her apartment earlier on the date of the offense.
At trial, Staci identified defendant as the person who came into her apartment, beat her, and tried to rape her. She explained she lived in housing affiliated with a mental health program. Earlier on the date of the offense, Staci's then romantic partner William and defendant, whom William identified as his cousin, were "hanging out" at her neighbor Jacob's apartment. William and defendant went across the hall to Staci's apartment as she baked a frozen pizza. Staci got a "bad vibe" from defendant, felt "uncomfortable," and told William she did not want defendant there. Defendant eventually left, and Staci and William engaged in sexual relations. Thereafter, William left. Staci texted William to come back and she left the door unlocked in case William or Jacob came by. Later that night, she heard the door open and called out but did not hear a response. Staci got out of bed and encountered defendant in the hall of her apartment near her bedroom door.
Defendant pushed Staci onto her bed and got on top of her. He tried to pull down Staci's pants and penetrate her and also tried to make her orally copulate him. He hit her repeatedly in the face with a tire awl. Staci managed to escape and run to her next door neighbor's apartment where they called the police. The People introduced images of Staci's injuries at trial. A sexual assault response team (SART) nurse, Brittany Taylor, testified she swabbed areas of Staci's body to test for DNA. Criminalist Christopher Johnson testified DNA extracted from the swab taken from Staci's neck was consistent with defendant's DNA.
After receiving a description of what the suspect was wearing, Officer Ray Guerrero saw defendant sitting on a bench and contacted him. Defendant provided Officer Guerrero his birth date and a false name. Officer Guerrero conducted a records check and learned defendant had a felony warrant out for his arrest; so, he arrested him. During the booking process, defendant was dozing off. Officer Guerrero asked him why he was so tired, and defendant responded that he had been in Visalia with his cousin the previous night. When Officer Guerrero located a packaged condom in defendant's belongings and lifted it up, defendant bragged "that he and his cousin had sex with the same female the night prior." When police met with defendant, they confiscated the phone in his possession, which he stated belonged to William.
The People also presented testimony from Peggy L., defendant's former girlfriend, pursuant to Evidence Code section 1108. Peggy related an incident when she and defendant were walking in a dry streambed on the outskirts of the town where defendant grew up. Peggy was feeling sick from the heat and wanted to go back to the car and have a drink of water. Defendant stated he wanted to have sex and, though Peggy refused, he pushed her against a tree and forced himself on her. Peggy did not fight back because defendant had been violent with her in the past.
Defendant testified on his own behalf about the night in question. He testified Staci called William's phone, which defendant had in his possession. She asked defendant to come over because someone was in her apartment trying to kill her. According to defendant, he then went to Staci's apartment and, when he arrived, Staci's face was red and puffy like she had been crying. He testified he did not intend to have sex with Staci until she brought it up, and then they engaged in consensual sex. Defendant denied hitting Staci, his ex-girlfriend Peggy, or any woman in the past.
The prosecution introduced a recorded statement defendant gave to police and the related transcript. In it, defendant stated Staci called William's phone, which he had in his possession, and she asked defendant to return so they could have sex. He told police he and Staci had sex. He also said Staci had taken pills, she "was tripping," she wanted to fight, and he hit her in the shoulder.
In light of defendant's testimony that he had never before hit a woman, the court permitted the prosecution to present, in rebuttal, testimony from women claiming to have been hit by defendant in the past. Accordingly, Peggy testified again about other incidents when defendant hit her. The prosecution also called Laurie L., one of defendant's other ex-girlfriends, who testified to incidents when defendant struck her.
The jury convicted defendant of assault with intent to commit a sexual offense during the commission of a first degree burglary (§ 220; count 1), attempted forcible rape (§§ 261, 664; count 2), attempted forcible oral copulation (§§ 288a, 664; count 3), first degree burglary (§ 459; count 4), and assault with a deadly weapon (§ 245, subd. (a)(1); count 5). The jury also found true allegations defendant had a prior strike and a serious felony conviction and one prison prior term for a separate conviction as well as allegations defendant used a deadly weapon (§§ 12022.3, subd. (b)(1), 12022.3, subd. (a)), was armed with a deadly weapon (§ 12022.3, subd. (b)), and personally inflicted great bodily injury (§ 12022.8).
The trial court sentenced defendant on count 1 to an indeterminate prison term of 14 years to life pursuant to section 1170.12, subdivision (c)(1), enhanced by 21 years: 10 years pursuant to section 12022.3, five years pursuant to section 667, subdivision (a)(1), five years pursuant to section 12022.8, and one year pursuant to section 667.5, subdivision (b). It also sentenced defendant on count 3 to a total determinate term of 29 years: eight years imprisonment pursuant to section 1170.12, subdivision (c)(1), plus an additional and consecutive term of 10 years pursuant to section 12022.3, subdivision (a), a consecutive term of five years pursuant to section 12022.8, an additional and consecutive five years pursuant to section 667, subdivision (a)(1), and an additional and consecutive term of one year pursuant to section 667.5, subdivision (b). It stayed the remaining terms pursuant to section 654 with credit for 759 days in custody. Defendant appeals.
DISCUSSION
I. Prosecutorial Misconduct
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42 Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107, 167.) "The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor." (People v. Mendoza, supra, at p. 700.) "'A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.'" (People v. Tully (2012) 54 Cal.4th 952, 1010.)
A. Waiver and Ineffective Assistance of Counsel
Defendant concedes his trial counsel lodged no objections to the prosecutor's conduct he now challenges on appeal but, he contends, objections and admonishments would have been futile. "'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.'" (People v. Hill (1998) 17 Cal.4th 800, 820.) An exception is made if a timely objection or request for admonition would have been futile, or if an admonition would not have cured the harm caused by the misconduct. (Ibid.) "'The reason for this rule, of course, is that "the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury."' [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1341.)
Alternatively, defendant contends his trial counsel rendered ineffective assistance of counsel for failing to object to the prosecutor's challenged comments below. To prove ineffective assistance of counsel, a defendant must satisfy Strickland's two-part test requiring a showing of counsel's deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.) The prejudice prong requires a defendant to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) Prejudice must be affirmatively proved. (People v. Maury (2003) 30 Cal.4th 342, 389.) Where a defendant fails to show prejudice, a reviewing court may reject a claim of ineffective assistance of counsel without reaching the issue of deficient performance. (See Strickland, at p. 697.)
Here, as we explain post, defendant has failed to establish ineffective assistance of counsel or, that even if these issues were adequately preserved for our review, the prosecutor engaged in prejudicial misconduct.
B. Admission of victim impact evidence
Defendant first contends the prosecutor improperly presented victim impact evidence and related argument during the guilt phase of trial, resulting in a violation of defendant's due process rights.
1. Relevant factual background
During the prosecutor's direct examination of Staci, she asked Staci about how the incident changed her life:
"[PROSECUTOR:] Q. And what about the emotional pain that's come with this?
"[STACI:] A. Well, I been trying to put it past me, but like I don't sleep in the room by myself. I usually have the light on, the door is open. [¶] When I went to job corps for a while, we had three other roommates, and a staff member would always come into the room. So ever since this, I never slept alone. I don't like at night or anything, like it scares the hell out of me, darkness and going out at night scares the hell out of me usually.
"Q. And is that related to this incident?
"A. Yes.
"Q. Is it a change from how you were before?
"A. Oh, yeah.
"Q. Has this changed your life?
"A. Yeah.
"Q. How so?
"A. I won't sleep by myself. I don't like being left alone. I always have my older sister ... or my other sister ... or my mom's with me or the kids with me. [¶] I like the room—I don't like being in there by myself so I always have my niece or my mom come over and stuff. There has to be TV on or the lights on. [¶] I went through therapy quite a bit at job corps 'cause of it. They had me on some medication for night terrors 'cause I have nightmares really bad.
"Q. Is that from this?
"A. Yeah.
"Q. Did you have that before this?
"A. No. I slept like a baby before this, you couldn't wake me up with nothing unless my niece put a diaper in my face, then I got up."
Then, during closing, the prosecutor noted Staci's testimony that the incident had changed her life:
"She testified here in court in the trial. Her testimony was emotional. It was heart wrenching and true. She had tears streaming down her face as she told us what the pictures of her injuries were and how she obtained those injuries, how she got them from the defendant. [¶] Her testimony was the raw, unedited truth about what happened that night and what effect it has had on her ever since. [¶] ... [¶]
"This has changed her life. She moved out of that apartment. She moved out of state. She can't sleep alone. She can't be alone. This has changed her life forever, but she didn't say that more happened than actually happened. She only told us what happened because that is the truth and because it wouldn't cross her mind to lie about something like this."
2. Analysis
Defendant asserts the referenced testimony and argument amounted to "victim impact evidence" which, he contends, is inadmissible during the guilt phase of trial. He argues, though his counsel did not object to this evidence, an objection would have been futile because the resulting harm was "incurable, irreparable." Alternatively, he argues his counsel was ineffective for failing to object.
As defendant acknowledges, he forfeited his claims by failing to object to any of the testimony on the grounds he now raises. (Evid. Code, § 353, subd. (a); People v. Fuiava (2012) 53 Cal.4th 622, 687.) He does not persuade us that an objection would have been futile because the resulting harm from the admitted testimony could not be cured. Rather, nothing suggests that a timely admonition, if one had been requested and given, would not have cured any potential harm and curbed additional inquiry into the subject.
But even were we to consider defendant's contention, we find no prejudicial error. Defendant cites cases, arguing "victim-impact evidence is inadmissible in a capital or non-capital guilt trial." (See Payne v. Tennessee (1991) 501 U.S. 808, 825, 827; People v. Bemore (2000) 22 Cal.4th 809, 856; People v. Stanley (1995) 10 Cal.4th 764, 832.) But our independent review of these cases and this issue does not reveal a blanket prohibition against victim impact evidence during the guilt phase of a noncapital trial. Rather, the California Supreme Court has held a "defendant's claim that ... testimony constituted impermissible guilt phase victim impact testimony is simply an objection that the testimony was irrelevant or more prejudicial than probative." (People v. Banks (2014) 59 Cal.4th 1113, 1165, abrogated on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; see People v. Redd (2010) 48 Cal.4th 691, 731, fn. 20 [no distinction between alleged error in admission of victim impact evidence and admission of any other irrelevant evidence].)
Here, the challenged evidence was relevant to defendant's guilt. Specifically, Staci's testimony regarding the continuing effect of the incident on her psyche was relevant to the jury's analysis of her and defendant's credibility and whether the encounter between Staci and defendant was consensual. (E.g., People v. Bledsoe (1984) 36 Cal.3d 236, 251-252 ["in this [rape] case numerous witnesses ... described the severe emotional distress that [the victim] exhibited both in the house immediately following the attack and in subsequent weeks, and ... there is no question ... that such evidence was properly received. Lay jurors are ... fully competent to consider such evidence in determining whether a rape occurred"; the "numerous bruises and extreme emotional distress provided persuasive corroboration of [the victim's] testimony that she had not consented to the sexual encounter"]; People v. Coleman (1989) 48 Cal.3d 112, 143 [concluding "[s]tatements of a complaining witness to a counselor describing emotional and psychological trauma suffered by the witness following an alleged rape are admissible as circumstantial evidence on the question whether the defendant had a reasonable good faith belief that the witness had consented to his act" and rejecting related relevancy objection]; People v. Kipp (2001) 26 Cal.4th 1100, 1123-1124 ["In a prosecution for forcible rape, evidence is relevant if it establishes any circumstance making the victim's consent to sexual intercourse less plausible"].) And the prosecutor's closing argument, which referred to the emotional nature of the incident and how it had changed Staci's life, was a fair comment on the evidence presented at trial. (People v. Hill, supra, 17 Cal.4th at p. 819.) Moreover, the California Supreme Court has expressly rejected an assertion that the admission of victim impact evidence during the guilt phase at trial, such as that admitted here, violates a defendant's constitutional rights. (People v. Redd, supra, 48 Cal.4th at p. 732, fn. 21.) Thus, we cannot conclude it was error for the trial court to admit such testimony and argument, nor can we conclude the prosecutor's line of inquiry "infect[ed] the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales, supra, 25 Cal.4th at p. 44.)
C. "Were they lying" questions were proper cross-examination
Defendant next argues the prosecutor engaged in misconduct in violation of defendant's rights to due process and a fair trial by asking defendant during cross-examination whether prosecution witnesses who testified to conflicting facts were lying.
1. Relevant factual background
During cross-examination, the prosecutor asked defendant whether, why, and how Peggy lied on the stand. The court sustained defense counsel's objections to the questions regarding why Peggy lied on the grounds that such questions called for speculation. However, the court permitted the prosecutor's inquiry into whether and how Peggy lied.
"[PROSECUTOR:] Q. [W]hy would [Peggy] come in here and lie when she knows what's at stake, why would she?
"[DEFENSE COUNSEL]: Objection, calls for speculation.
"THE COURT: Just a second. That's sustained.
"Q. When [Peggy] knows that you are in trouble for a criminal matter and that you're in the middle of a criminal trial, why would she come in and lie?
"[DEFENSE COUNSEL]: Same objection.
"THE COURT: That's sustained for speculation. [¶] ... [¶]
"Q. Did Peggy lie?
"[DEFENDANT]: A. Yes, she did.
"Q. How so?
"A. She lied by—
"[DEFENSE COUNSEL]: Objection, calls for speculation.
"THE COURT: Overruled.
"Q. How did Peggy lie?
"A. I take a lie detector test if that's—if that can solve everything. I can take a lie detecter [sic] test, and I bet you I come back and it passes.
"Q. That was not my question. [¶] My question was did Peggy lie?
"A. Yes, she did.
"Q. How did she lie?
"A. She said I raped her, and I never raped her. She said I sodomized her. I never sodomized her. I never put my penis in this woman without her consent."
At the end of her cross-examination, the prosecutor also asked defendant whether other witnesses including the detectives and officers who investigated the case were lying.
"Q. So is everybody else lying?
"A. You can take it how you want it. I'm not lying.
"Q. Is Detective Guerrero lying?
"A. Yes.
"Q. Is Detective Ford lying?
"A. Yes.
"Q. Is Detective Alfano lying?
"A. I ain't heard from—
"Q. Officer Alfano?
"A. Yes.Defense counsel did not object to this line of questioning.
"Q. Is Officer Medina lying?
"A. Yes.
"Q. Is Staci lying?
"A. Yes, when I hear from [Detective] Pena and—
"Q. Is Peggy lying?
"A. Yes.
"Q. Are you telling the truth?
"A. Yes."
2. Analysis
Defendant argues the "majority of federal circuit courts deem this line of questioning improper and unconstitutional." He cites a line of federal authority that categorically holds "were they lying" questions constitute misconduct. (See, e.g., United States v. Schmitz (11th Cir. 2011) 634 F.3d 1247, 1268-1269; United States v. Moreland (9th Cir. 2010) 622 F.3d 1147, 1158-1160.) He contends the federal view on this issue is persuasive and he seeks to preserve this issue for consideration by the California Supreme Court. However, he also correctly acknowledges the California Supreme Court's position on this issue differs and that its precedent is binding.
In People v. Chatman (2006) 38 Cal.4th 344, the California Supreme Court declined to adopt a categorical approach and instead held "courts should carefully scrutinize 'were they lying' questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions." (Id. at p. 384; see People v. Collins (2010) 49 Cal.4th 175, 206.) Defendant also asserts error occurred under the California standard because the questions were argumentative and designed to elicit irrelevant and speculative testimony, and defendant "did not possess personal knowledge of other witnesses' internal thought processes and motives."
Here, the trial court overruled defense counsel's "calls for speculation" objection when the prosecutor asked defendant how Peggy lied. Contrary to defendant's argument, the trial court properly overruled this objection; the prosecutor's questions did not call for speculation because "[a] defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken." (People v. Chatman, supra, 38 Cal.4th at p. 382; see People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 319.) Thus, the prosecutor's question did not constitute misconduct.
Defendant put his veracity at issue by taking the stand, and "it was permissible for the prosecutor to clarify defendant's own position" regarding what he alleged had occurred versus Peggy's version of the events. (People v. Chatman, supra, 38 Cal.4th at p. 383.) Such questions sought to elicit testimony that would assist the trier of fact in ascertaining whom to believe. (See ibid. [no misconduct where defendant took stand and urged jury to believe him over other witnesses, and prosecutor asked defendant to clarify his position and whether he had information about other witnesses' biases, motives, or interests to lie]; People v. Collins, supra, 49 Cal.4th at p. 206 ["Here, by choosing to testify, defendant put his own veracity at issue.... Because defendant's testimony contradicted [the officer's], the prosecutor's question appropriately assisted the jury in resolving the issue of whose testimony was more credible. There was no misconduct"].)
With regard to the second line of "were they lying" questions, defendant did not object to this exchange. Citing People v. Zambrano (2004) 124 Cal.App.4th 228, he contends his claim of prosecutorial misconduct should still be preserved for review because "[t]he prosecutor's dogged pursuit into this forbidden territory after objections and adverse rulings demonstrates the futility of continued objections and rulings to remedy this problem." In Zambrano, the court noted "'[a] defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile.' [Citation.]" (Id. at p. 237.) The Zambrano court held the issue of prosecutorial misconduct regarding "were they lying" questions was preserved for review where the trial court overruled defense counsel's speculation objections to the prosecutor's questions regarding whether officers would risk their jobs by lying to the jury. (Ibid.) Based on this erroneous ruling, the Zambrano court held objections to additional related questions would have been futile, so the defendant was excused from objecting. (Ibid.) But, unlike in Zambrano, defense counsel did not object at any time to this second line of questioning, and he provides us no basis for concluding such an objection would have been futile. Thus, his failure to object forfeited this issue on appeal.
Alternatively, defendant contends he received ineffective assistance of counsel because of the failure to object. We disagree.
"[A] mere failure to object to evidence or argument seldom establishes counsel's incompetence." (People v. Ghent (1987) 43 Cal.3d 739, 772.) "'Tactical errors are generally not deemed reversible; and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ...."'" (People v. Hart (1999) 20 Cal.4th 546, 623-624.)
Here, the record does not reflect why defense counsel did not object to this exchange, and this is not a situation where "there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Rather, because defendant took the stand and testified to his version of the events, defense counsel could have reasonably believed the prosecutor was entitled to impeach defendant's credibility and clarify that his statement was contradicted by that of the other witnesses. (E.g., People v. Collins, supra, 49 Cal.4th at p. 206 ["Because defendant's testimony contradicted [the officer's], the prosecutor's question appropriately assisted the jury in resolving the issue of whose testimony was more credible. There was no misconduct."].) Accordingly, we cannot conclude defendant has overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. (See Strickland, supra, 466 U.S. at p. 689.)
D. Comment on defendant's demeanor during trial
Defendant next asserts the prosecutor committed misconduct and violated his right to due process by referencing his demeanor during trial when he was not testifying.
1. Relevant factual background
During her closing argument, the prosecutor commented on defendant's reaction to another witness's testimony:
"And did you see the defendant's demeanor when the Department of Justice expert was testifying, Christopher Johnson, how he was shaking his face and mouthing swear words every time that Christopher Johnson said that his DNA was found on [Staci] and gave us that probability ... it's his DNA on her. Did you see his reaction? I think that his testimony that he was giving us was changing at that point because at that point, you can't deny science. At that point, he can't say that he wasn't there."
2. Analysis
Defendant concedes his counsel did not object to this portion of the prosecutor's closing argument, forfeiting his claim of error on appeal. However, he argues his counsel provided ineffective assistance by failing to object. The People do not respond to defendant's argument on this issue, but defendant bears the burden of affirmatively demonstrating error on appeal; in the absence of evidence, his claim must fail. (See People v. Gamache (2010) 48 Cal.4th 347, 378.)
Even assuming, without deciding, the prosecutor's argument regarding defendant's demeanor was misconduct and defense counsel was deficient in failing to object, we cannot conclude defendant has established a reasonable probability that, but for counsel's failure to object, the result of the proceeding would have been different. The prosecutor's comment regarding defendant's demeanor was brief relative to the rest of her argument, and the evidence of defendant's guilt was strong. Defendant's DNA was found on Staci's body, she identified him as the perpetrator, the prosecution introduced evidence of the injuries Staci sustained during the incident, and multiple witnesses including Staci testified to her emotional reaction to the incident. Defendant offered conflicting stories of the incident but admitted he was present on the date of the offense and that he and Staci had a sexual encounter, though he denied it was nonconsensual. Defendant also testified on his own behalf, reducing any harm to his Fifth Amendment rights.
Additionally, the trial court instructed the jury: "Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else that [the court told] you to consider as evidence" and "[n]othing that the attorneys say is evidence. In their ... closing arguments, the attorneys discuss the case, but their remarks are not evidence." (CALCRIM No. 222.) We presume the jury followed these instructions. (See People v. Edwards (2013) 57 Cal.4th 658, 764 [presuming jury will follow instruction that statements of attorneys are not evidence]; People v. Bryden (1998) 63 Cal.App.4th 159, 184 ["Further, the court instructed the jury that questions and statements by the attorneys do not constitute evidence, and the jury is presumed to follow the court's instructions"].) Defendant has provided no basis to conclude these admonishments did not cure any alleged misconduct.
Accordingly, presuming the jury followed the trial court's instructions and considering the strength of the People's evidence inculpating defendant, we cannot conclude the prosecutor's brief reference to defendant's demeanor resulted in prejudice such that it is reasonably probable the trial outcome was affected by any alleged prosecutorial misconduct. (See People v. Boyette (2002) 29 Cal.4th 381, 434-435 [no prejudice resulted from prosecutor's comments during closing argument regarding defendant's demeanor during trial because comments were "brief and fleeting," defendant chose to testify "reducing any harm to his Fifth Amendment rights," and there was ample evidence both of defendant's lack of credibility and of his guilt].) Because he cannot establish the requisite degree of prejudice, defendant's prosecutorial misconduct and related ineffective assistance of counsel claims fail as a matter of law. (See Strickland, supra, 466 U.S. at p. 697 [where defendant fails to show prejudice, reviewing court may reject claim of ineffective assistance of counsel without reaching issue of deficient performance].)
E. Vouching for the credibility of complainant and victims of uncharged offenses
Defendant further contends the prosecutor committed misconduct by vouching for the credibility of the complainant and the victims of the uncharged offenses in violation of defendant's due process rights.
1. Relevant factual background
Staci testified it was not easy for her to testify and she wanted to leave because she was "very uncomfortable." According to Staci, she had "never seen law enforcement as a good thing" and was scared to report the incident, but she "had no choice basically." She stated she was honest with police and told them what had happened, and it was easier for her to talk to Detective Ford when he was in plain clothes. She explained she had never met defendant before the date of the incident. She testified regarding the invasive nature of the SART examination and how they took pictures of her whole body. She stated she was "really, really uncomfortable" during the SART examination and agreed to go through with it because she "wasn't okay with what ... happened to [her], and [s]he wanted the bastard caught."
Laurie L. testified defendant choked her, pushed her, hit her in the face, and busted her lip when they were together. She explained she called the police because she "was scared for [her] life."
Peggy L. testified defendant raped her and she never reported it, but she came forward during the trial because she "didn't want anything bad to happen to someone else." She testified defendant headbutted her, hit her, and choked her, and she "was scared of him." According to Peggy, during one incident when defendant was choking and hitting her, Peggy thought she was going to die.
During her closing, the prosecutor argued:
"One constant with every single one of the witnesses that we had that were present there or that talked about the events there is that they didn't want to be here, even the victim was not comfortable talking to police, and she only felt comfortable talking to Sergeant Ford because he had on plainclothes [sic], and so it wasn't quite as bad. [¶] None of them would have been here in court today unless these crimes happened, unless what the defendant is charged with having occurred occurred, unless he did these crimes. [¶] ... [¶]
"[The SART examination is] very intrusive. It's head to toe. It's for purposes of forensic sexual evidence. [¶] Nobody would put themself through that unless something really bad happened to them, unless they had to. Staci consented to pictures being taken of very intimate places. She didn't know what was going to be examined and not examined. She said you can take pictures of everything, everything that you need to because this happened to me, and I want you to be able to help me, help me somehow. That is what the purpose of that Sexual Assault Response Team exam is for. [¶] ... [¶]
"You also can't argue with so many different women coming forward and saying that they were afraid of him; that he beat them; that he hit them, that he choked them, that he headbutted them, that he kicked them, that he held them down, that they were in fear for their lives and also
that he rapes another person. These people came forward telling you that he raped them. They have no motive to lie.Defense counsel did not object to such argument.
"You know there was a training with about 300 people, all different kinds of prosecutors and investigators and law enforcement, everyone there. There were about 300 people in this large room, and the presenter got up there and he said I want any of you who are willing to tell me about your most recent consensual sexual experience and encounter to raise your hand. [¶] How many people do you think raised their hand in that room? Not one, not one person raised their hand in the room, and that is somebody who's talking about a consensual encounter with their boyfriend, with their girlfriend, with their husband, with their wife, with their significant other, with their partner, and Staci had to come in here, and she had to tell you about being raped by somebody who she just met earlier that night. [¶] And Peggy came in here and she told you about being raped ... and they came in here and they told you this when nobody would come in and talk about their most recent sexual encounter. [¶] ... [¶]
"... Peggy doesn't have a motive to lie. She doesn't have any reason to come in here and tell you that these things happened to her if they didn't. [¶] ... [Laurie L.] didn't have a motive to lie, either."
2. Applicable law
A prosecutor may comment upon the credibility of witnesses based on facts contained in the record and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record. (People v. Martinez (2010) 47 Cal.4th 911, 958; People v. Turner (2004) 34 Cal.4th 406, 432-433.) Impermissible "vouching" of a witness may occur when a prosecutor places the government's prestige behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony. (See People v. Linton (2013) 56 Cal.4th 1146, 1207.)
3. Analysis
Defendant argues the prosecutor committed misconduct by improperly vouching for the credibility of Staci, Peggy, and Laurie "by repeatedly asserting they had no motive to lie." The People respond the prosecutor's argument was properly based upon the evidence presented at trial and, even if there was misconduct, defendant was not prejudiced. We agree with the People.
"Although a prosecutor may not personally vouch for the credibility of a witness, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case." (People v. Boyette, supra, 29 Cal.4th at p. 433.) Based on the record before us, the prosecutor's discussion of Staci, Laurie, and Peggy's testimonies was a fair comment on the evidence, and the prosecutor's related argument these witnesses lacked motivation to lie was based on inferences that could be drawn from the evidence presented. (Ibid. [prosecutor's argument regarding witnesses' credibility and lack of motivation to lie was permissible because it was based on circumstances of case and inferences from evidence presented].) Thus, we cannot conclude such argument constituted improper vouching.
Defendant does not specifically challenge the prosecutor's comments regarding the "training" she attended "with about 300 people" during which no one raised a hand to discuss a consensual sexual experience on the basis the prosecutor referred to facts not in evidence. But even if he had and such argument amounted to misconduct, we cannot conclude defendant was prejudiced by this brief portion of the prosecutor's argument. Presuming the jury followed the trial court's instructions, and considering the strength of the People's evidence inculpating defendant and the brevity of such discussion in context, it is not reasonably probable the trial outcome was affected by this alleged prosecutorial misconduct.
F. Appeals to the jurors for sympathy for victims
Defendant also argues the prosecutor committed misconduct by appealing to the jurors for sympathy for the victims in violation of defendant's due process rights.
1. Relevant factual background
Defendant alludes to the prosecutor's argument, discussed ante, during which the prosecutor referenced a conference she had attended where no one would volunteer to discuss a consensual sexual encounter and then discussed the impact Staci testified the incident had on her life.
He also challenges other statements the prosecutor made during closing:
"[D]efendant even on the stand showed us how he hits himself. That was a little scary for me to see, I mean, and that's just him mock hitting somebody. Think of all the real testimony that we've had of [defendant] actually hitting somebody, how terrifying that would be. [¶] ... [¶]
"[Defendant] admits to fighting with the victim and then changes his story to say that she was fighting with herself .... [¶] ... The only truth is that Staci was fighting. She was fighting for her life. She was fighting with him. She thought she was gonna die. Imagine the fear that she must have felt. [¶] ... [¶]
"Look at what this witness had to go through when she was on the witness stand. This is the precise reason that people don't come forward with rapes.... [T]he other girl who came in and said that she was raped, Peggy L[.], she didn't report it. [¶] Look at what Staci had to go through. [¶] ... [¶]
"... Staci actually stood up for herself, and it wasn't okay, and so she came in here with tears streaming down her face telling you what happened to her."
2. Applicable law
"'It is, of course, improper to make arguments to the jury that give it the impression that "emotion may reign over reason," and to present "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response." [Citation.]' [Citation.]" (People v. Redd, supra, 48 Cal.4th at p. 742.) "'We have settled that an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt.' [Citations.]" (People v. Jackson (2009) 45 Cal.4th 662, 691; see People v. Vance (2010) 188 Cal.App.4th 1182, 1192.)
3. Analysis
Defendant contends the "prosecutor during argument urged jurors to step into the shoes of the complainant and predisposition accusers and to be swayed by sympathy for them." As with defendant's other claims of prosecutorial misconduct, he failed to object during trial and, thus, forfeited this issue on appeal. But, even on the merits, defendant's claim fails.
We agree with defendant the prosecutor's comments: "Think of ... how terrifying that would be," and "Imagine the fear that she must have felt," were improper. (See People v. Jackson, supra, 45 Cal.4th at p. 691; People v. Vance, supra, 188 Cal.App.4th at p. 1192.) However, given the fleeting nature of these remarks in the context of the much longer closing argument and the strong evidence of defendant's guilt, we cannot conclude it is reasonably probable the outcome of the trial was affected by such comments. Thus, we conclude such misconduct did not result in prejudice. (Compare People v. Seumanu, supra, 61 Cal.4th at p. 1344 [prosecutor committed misconduct asking jury to imagine themselves in the victim's shoes, but misconduct did not result in prejudice given strong evidence of guilt and because "few remarks [were made] in a much longer closing argument, and an even longer trial"], People v. Leonard (2007) 40 Cal.4th 1370, 1407 [concluding misconduct where prosecutor asked jury to imagine thoughts of victims in their last seconds of life was harmless because "the prosecutor's passing remark could not have prejudiced defendant, given the overwhelming evidence of guilt"], and People v. Stansbury (1993) 4 Cal.4th 1017, 1057, reversed on another ground in Stansbury v. California (1994) 511 U.S. 318 [prosecutor's argument asking jury to think what victim was thinking in her last moments of consciousness during assault was misconduct but harmless because "we do not believe a brief statement of this sort would sway the jury over that long a period"] with People v. Vance, supra, 188 Cal.App.4th at pp. 1194-1207 [reversing for prosecutorial misconduct where case was close on degree of defendant's culpability, defense counsel repeatedly objected to prosecutor's improper comments, trial court refused to admonish jury, and prosecutor extensively argued jury should walk in victim's shoes and relive his experience, asked jury to consider victim's feelings, referred to facts not in evidence, and asked jury to consider what victim might be thinking as he was dying].)
With regard to the remainder of the prosecutor's challenged comments, there was no misconduct. "'"'[A] prosecutor is given wide latitude during argument. The 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. [Citations.]'"'" (People v. Hill, supra, 17 Cal.4th at p. 819.) In determining the credibility of a witness, a juror is permitted to consider "any matter that has any tendency in reason to prove or disprove the truthfulness" of the witness, including the witness's "demeanor while testifying and the manner in which [the witness] testifies." (Evid. Code, § 780, subd. (a).) Thus, it was not misconduct for the prosecutor to comment on Staci's demeanor while she testified. Additionally, the rest of the prosecutor's challenged statements were fair comments on the evidence presented at trial about the experiences of Staci, Peggy, and Laurie and their failure to report defendant's abuse. These arguments fall within the bounds of proper argument by a prosecutor. Additionally, the court instructed the jury: "Do not let bias, sympathy, prejudice, or public opinion influence your decision." We presume the jury followed this instruction. (See People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 857.)
Accordingly, we reject defendant's contentions of prosecutorial misconduct.
II. CALCRIM No. 1190 Does Not Reduce the Prosecutor's Burden
Defendant next contends the inclusion of CALCRIM No. 1190, which provides: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone," reduced the prosecutor's burden at trial in violation of defendant's rights to due process and a fair trial.
A. Relevant factual background
The trial court included CALCRIM Nos. 301, 302, and 1190 in its instructions to the jury. Pursuant to CALCRIM No. 301, the trial court instructed jurors: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence."
This was immediately followed by CALCRIM No. 302: "If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."
Then, after instructing the jury on the elements of the sexual assault charges, the court instructed, pursuant to CALCRIM No. 1190: "Conviction of a sexual assault crime may be based on the testimony of the complaining witness alone." Defense counsel did not object to the inclusion of such instructions nor request any modification or clarification of them. The prosecutor and the trial court referenced CALCRIM No. 1190 during voir dire and the prosecutor also emphasized it during her closing argument, reiterating that the law permits a conviction based on the complainant's testimony alone.
B. Standard of review and applicable law
When a criminal defendant contends an ambiguous or potentially misleading instruction violated his or her federal due process rights, an appellate court must review the instructions as a whole and determine "'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution. [Citation.]" (Estelle v. McGuire (1991) 502 U.S. 62, 72; accord, People v. Smithey (1999) 20 Cal.4th 936, 963 ["If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction"].)
The California Supreme Court has held CALCRIM Nos. 301, 302, and 1190 all correctly state the law. (See People v. Gammage (1992) 2 Cal.4th 693, 700-702 [discussing CALJIC No. 2.27, CALCRIM No. 301's counterpart, and CALJIC No. 10.60, CALCRIM No. 1190's counterpart]; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 [discussing CALJIC No. 2.22, CALCRIM No. 302's counterpart]; Evid. Code, § 411 [except where additional evidence required by statute, direct evidence of one witness entitled to full credibility is sufficient for proof of any fact].) In Gammage, the trial court instructed, pursuant to CALJIC No. 2.27: "'Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.' [Citations.]" (People v. Gammage, supra, at p. 696, italics & fn. omitted.) The trial court also instructed, pursuant to CALJIC No. 10.60: "'It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.' [Citation.]" (Gammage, supra, at pp. 696-697, fn. omitted.)
The California Supreme Court held it was proper to give the two instructions together in sex offense cases. (People v. Gammage, supra, 2 Cal.4th at p. 702.) The court stated:
"Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact ...
proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes. [¶] Because of this difference in focus of the instructions, we disagree with defendant ... that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other." (Gammage, at pp. 700-701.)
C. Analysis
Comparing CALCRIM No. 1190 to CALCRIM Nos. 301 and 302, defendant argues "the difference in instructions suggests that the cautionary part of CALCRIM No. 301 and CALCRIM No. 302 does not apply to CALCRIM No. 1190," and "[t]his inference improperly reduces the burden of proof applicable to sex-offense complainant testimony." He acknowledges the California Supreme Court held "the CALJIC predecessor instruction to CALCRIM No. 1190 did not improperly highlight or pinpoint a sex-offense complainant-witness's testimony" in People v. Gammage, supra, 2 Cal.4th 693. But he contends the California Supreme Court "has not addressed the precise claim raised here."
Defendant's failure to object to, or seek clarification of, the instructions he now challenges forfeits his claim of error on appeal. (See People v. Valdez (2004) 32 Cal.4th 73, 113.) His claim also fails on the merits.
The crux of defendant's claim is that CALCRIM No. 1190, when juxtaposed with the cautionary language in CALCRIM Nos. 301 and 302, reduced the burden of proof applicable to the complainant's testimony. But the Gammage court expressly rejected the assertion that such an instruction, which dictates a substantive rule of law, creates a preferential credibility standard for a complaining witness in a sexual assault case. (People v. Gammage, supra, 2 Cal.4th at p. 701.) It held when this instruction is given coupled with a cautionary instruction that guides the factfinder's review of the evidence, "'a balance is struck which protects the rights of both the defendant and the complaining witness'" and it does not dilute the "'"beyond a reasonable doubt"' standard" or lead to an unfair trial. (Id. at p. 701.) The court unequivocally stated, "The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Ibid.) We agree with and are bound by the court's determinations and conclude they are dispositive of defendant's argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, we cannot conclude the court erred in instructing the jury on CALCRIM No. 1190, and we find no violation of defendant's rights to due process and a fair trial.
Moreover, we do not view CALCRIM No. 1190 in isolation. (See People v. Wallace (2008) 44 Cal.4th 1032, 1075.) Rather, "[i]n assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled." (People v. Tate (2010) 49 Cal.4th 635, 696.) "Also, '"'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]"' [Citation.]" (People v. Sattiewhite (2014) 59 Cal.4th 446, 475.) Here, jurors were instructed to "[p]ay careful attention to all ... instructions and consider them together" and "judge the testimony of each witness by the same standards ...." They were also instructed that the People must prove defendant guilty beyond a reasonable doubt. Taking these instructions into account, we cannot conclude it is reasonably likely jurors interpreted CALCRIM No. 1190 in the way defendant now contends.
We reject defendant's second contention.
III. Imposition of Minimum Parole Eligibility
Defendant next argues the trial court erred in imposing a "minimum parole eligibility term for count 1[, assault with intent to commit rape]" because "[t]he correct Two-Strike sentence should be a doubled indeterminate straight-life term, not a term of 14-years-to-life." The People respond the trial court properly doubled the minimum period of confinement before eligibility for parole pursuant to section 3046. We agree with the People.
Section 220, subdivision (b) states the punishment for a conviction of assault with intent to commit rape during the commission of a burglary in the first degree is life imprisonment with the possibility of parole:
"Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for life with the possibility of parole."
Section 3046, subdivision (a) provides:
"An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole."
And section 1170.12, subdivision (c)(1) provides: "If a defendant has one prior serious and/or violent felony conviction ... that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (Italics added.) "The parole ineligibility period set by section 3046 is a minimum term." (People v. Jefferson (1999) 21 Cal.4th 86, 96.)
Here, the trial court properly sentenced defendant on count 1 for assault with intent to commit rape during the commission of a burglary pursuant to sections 220 and 3046, which provide for a term of life imprisonment with a minimum parole eligibility requirement of seven years. Because defendant has a previous strike, the "minimum term" the defendant must serve was doubled pursuant to section 1170.12, subdivision (c)(1). Accordingly, the trial court properly sentenced him to a 14-years-to-life term in prison. (E.g., People v. Jefferson, supra, 21 Cal.4th at pp. 89-90 ["a defendant who has a prior strike and who is convicted of a felony punishable by a term of 15 years to life in prison will receive a sentence of 30 years (2 times 15 years) to life"].)
We reject defendant's third contention.
IV. Remand for Consideration of Senate Bill 1393
Senate Bill 1393, signed into law on September 30, 2018, amends sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance of justice, five-year enhancements imposed pursuant to section 667, subdivision (a)(1). The new law became effective on January 1, 2019. The law is applicable to those parties, like defendant, whose appeals are not final on the law's effective date.
Defendant seeks remand to permit the trial court to review his five-year enhancement for a prior serious felony in light of Senate Bill 1393. The People respond the court's language at sentencing reflects it would not have struck defendant's strike even if it had the discretion to do so; thus, remand is not required.
Our Supreme Court has held "'[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, ... the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
During the sentencing hearing the court made the following statements and orders:
"The court's not adopting all of the requests as to aggravation and mitigation, but the court will reflect on each of those issues, make an independent determination, but I will allow the Statement in Aggravation to go with the prison packet based on the exhibits that are presented in there.
"As to probation factors, Section 1170.12(a)(2) prohibits the granting of probation. That's pursuant to Rule 4.413(a[)]. [¶] The court does not find that there's any factors in mitigation.
"As to factors of aggravation as to factors that relate to the crime, the court finds that the victim was particularly vulnerable, and that's pursuant to Rule 4.421(a)(3). [¶] Also, the defendant took a tire repair tool from the apartment that he was at which shows sophistication or professionalism and planning, and that's pursuant to Rule 4.421(a)(8). [¶] As to facts relating to the defendant, court finds the defendant was engaged in violent conduct which indicates a serious danger to society pursuant to Rule 4.421(b)(1). [¶] Defendant's prior convictions as an adult are numerous, that's Rule 4.421(b)(2). [¶] Defendant has served a prior prison term for which a sentencing enhancement was not imposed, and that's pursuant to Rule 4.421(b)(3). [¶] That the defendant was on summary probation and parole when the crime was committed, Rule 4.421(b)(4). [¶] And that the defendant's prior performance on probation and parole was unsatisfactory pursuant to Rule 4.421(b)(5). [¶] As to criteria relating to the crime, the court finds that the crime and its objective was [sic] predominantly independent of each other, and that's pursuant to Rule 4.425(a)(1); [¶] That it involved separate acts of violence or threats of violence pursuant to Rule 4.425(a)(2); [¶] That the crimes were committed so closely in time and place as to indicate a single period of aberrant behavior pursuant to 4.425(a)(3). [¶] Additionally, Section 667.6 deals with full and consecutive terms.
"So with that, the court is ready to begin. In case 322206, the defendant's application for probation is going to be denied.
"In Count 3, the defendant's committed to state prison for the aggravated term of eight years pursuant to Section 1170.12(c)(1) plus an additional and consecutive 10 years pursuant to Section 12022.3(a) and an additional and consecutive five years pursuant to 12022.8, an additional and consecutive five years pursuant to 667(a)(1) and an additional and consecutive one year pursuant to 667.5(b) for a total of 29 years with credit
for 660 days spent in custody awaiting sentence plus 99 days presentence credits pursuant to 2933.1 for a total of 759 days.
"In Count 2, the defendant's committed to state prison for the aggravated term of eight years pursuant to Section 1170.12(c)(1) plus an additional and consecutive 10 years pursuant to Section 12022.3(a), an additional and consecutive five years pursuant to Section 12022.8, an additional and consecutive five years pursuant to 667(a)(1), an additional and consecutive one year pursuant to Section 667.5 for a total of 29 years with credit for 660 days spent in custody awaiting sentence plus 99 presentence credits, those are 2933.1 credits, for a total of 759 days. That's gonna be stayed pursuant to Section 654.
"In Count 4, the defendant's committed to state prison for the aggravated term of 12 years pursuant to 1170.12(c)(1) plus an additional and consecutive term of one year pursuant to Section 12022(b)(1) and an additional consecutive five years pursuant to Section 667(a) and an additional consecutive one year pursuant to 667.5 for a total term of 19 years with credit for 660 days spent in custody awaiting sentence plus 99 days presentence credits, those are 2933.1 credits, for a total of 759 days. That will also be stayed pursuant to 654.
"In Count 5, defendant's committed to state prison for the aggravated term of eight years pursuant to Section 1170.12(c)(1) plus an additional and consecutive five years pursuant to 667(a)(1) and an additional consecutive one year pursuant to Section 667.5 for the total term of 14 years with credit for 660 days spent in custody awaiting sentence plus 99 days presentence credits, that's—those credits are 2933.1 credits, that's a total of 759 days, and that's also gonna be stayed pursuant to Section 654.
"In Count 1, the defendant's committed to state prison for the term of 14-years-to-life pursuant to Section 1170.12(c)(1) plus an additional and consecutive 10 years pursuant to Section 12022.3, an additional and consecutive five years pursuant to Section 12022.8, an additional and consecutive five years pursuant to 667(a)(1) and an additional and consecutive one year pursuant to 667.5 for a total term of 14-years-to-life plus 21 years with no presentence credits, and that's to run consecutive with Count 3.
"Defendant's gonna be placed on parole for a period of 10 years if granted parole, and that's pursuant to Section 3000(b)(3) ...."
This record does not reflect the trial court knew it had discretion to strike defendant's section 667, subdivision (a) enhancement, nor does it reflect a clear indication by the trial court that it would not have struck this enhancement if it had discretion to do so. Accordingly, we remand this matter for the trial court to set a resentencing hearing to exercise its discretion whether to dismiss the enhancements.
DISPOSITION
We affirm the conviction and remand the matter for resentencing.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.