Opinion
F075846
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL TORIBIO, Defendant and Appellant.
Ross Thomas, 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, Eric L. Christoffersen, Daniel B. Bernstein and Ross D. Naughton, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF166307A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Ross Thomas, 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, Eric L. Christoffersen, Daniel B. Bernstein and Ross D. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
Franson, Acting P.J., Peña, J., and Snauffer, J. --------
-ooOoo-
INTRODUCTION
A jury convicted defendant Miguel Angel Toribio of infliction of corporal injury upon the parent of his children (count 1), false imprisonment (count 2), and misdemeanor child neglect (count 3); he punched the mother of his children in the face, fracturing her cheekbone, and prevented her from leaving the room while he was holding their child. On appeal, he argues the prosecutor committed prejudicial misconduct during cross-examination by asking him "inflammatory questions" regarding his cousins' criminal histories and his grandmother's house being a hub for drug activity. Defendant also seeks remand for a new sentencing hearing to permit the court to exercise its newfound discretion and decide whether to strike his Penal Code section 667, subdivision (a) prior serious felony enhancements in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393).
We affirm defendant's convictions and remand this matter for the trial court to exercise its discretion regarding whether to dismiss the Penal Code section 667, subdivision (a) prior serious felony enhancements.
FACTUAL BACKGROUND
Defendant was previously in a relationship with Brenda with whom he had two young children. Brenda was the children's primary caregiver.
In November 2016, defendant's sister, Vanessa, babysat the children at her house, where defendant was living at the time, while Brenda was at work. When Brenda went to pick up the children, defendant began teasing her, trying to take off her hat, and became increasingly aggressive. One of their children started crying and Brenda told defendant she was going to leave. Defendant went to his bedroom. Brenda began gathering her belongings and went into defendant's room to retrieve her son's car seat. The older child followed Brenda into the room. Defendant asked Brenda what she was doing and she responded she was leaving. Defendant, while holding the older child, then punched Brenda in the face. Brenda felt instant pain and yelled for Vanessa. Defendant told Brenda to shut up and began punching her in the back and arm. Vanessa came to the door and asked what was going on. Brenda told her she thought defendant had broken her jaw. Vanessa testified she saw defendant standing in front of Brenda, and she told him to calm down and to let Brenda leave. Brenda tried to leave the room but defendant blocked the exit, preventing her from leaving for approximately two minutes. Eventually, defendant moved and Brenda grabbed the younger child and her things from the living room and went to the car while Vanessa followed. Brenda asked Vanessa to bring her the child defendant was holding, but defendant would not let Vanessa take the child. Brenda denied she tried to grab the child from defendant at any time that day.
While outside, Brenda called 911 and the police responded. The People played a recording of the 911 call at trial. Brenda reported to the police defendant had punched her and would not return her older child. The police photographed her face and the People introduced the photographs at trial. Defendant was arrested and the child was returned to Brenda.
After the incident, Brenda went home but was in a lot of pain. The next day her pain was worse and she again contacted law enforcement, who took more pictures. Brenda then went to the emergency room. The People also introduced at trial the photographs of Brenda's injuries from the day after the incident. In the pictures, Brenda's face was swollen, her eye was red from hemorrhaging, and she had bruising on her arm where she attempted to block defendant's punches. At the emergency room, Brenda learned her cheekbone had been fractured and she had to undergo surgery.
At trial, the People introduced recorded calls defendant made to Brenda after the incident, while he was in jail. In them, Brenda told defendant he fractured her face and she had to have surgery. Defendant did not deny injuring Brenda and instead apologized, stating, "Brenda, I'm sorry for what happened. I'm here because I deserve whatever the fuck I deserve," "I've been wanting to talk to you and tell you I'm sorry. I'm sorry for everything that I put the babies through fighting in front of them," "I was wrong, Brenda," "I know I fucked up." He told Brenda she was "the key to [his] fuckin' freedom" and asked her whether she was going to press charges and appear in court.
Brenda testified defendant had physically abused her "many times" before the November 2016 incident. Defendant had punched Brenda, strangled her, and pulled her hair in the past. She had reported one previous incident of abuse to police when defendant slapped her and banged her head into a wall.
In response to questions during cross-examination, Brenda testified regarding a different incident when she and defendant got into an argument when she went to pick up one of their children. According to Brenda, defendant took the child to stay at his grandmother's house. Brenda initially approved but then changed her mind "because of the people that live ... in that house," "[t]here's drugs in th[at] place." Brenda was angry and tried to grab the child from defendant because defendant would not give him to her. She and defendant both began pulling on the baby and Brenda eventually let go and started crying. On redirect, the prosecutor asked Brenda to elaborate about why she did not want the child to stay at defendant's grandmother's house. She explained she was afraid for her son's safety:
"Because all of it—the grandma lives there and she has her grandkids there, which are [defendant]'s cousins, and they all—I mean, they all drink and they all smoke marijuana, all kinds of drugs, and [defendant] at the time had been suffering—had—he had just came off from a rehab home. And I didn't want [defendant] to begin with hanging around with them because it was causing a lot of problems and, therefore, I didn't want my son there. I told him, 'If you want to be there, go ahead. I don't want my son.' And at first I had agreed and then, yes, I changed my mind because of all those things."
Defendant testified on his own behalf and denied punching Brenda. Instead, he testified that, on the date of the incident, he and Brenda were arguing and she tried to grab the child from his arms. According to defendant, he reacted instinctively by pushing Brenda and she hit her face on a metal bedframe. Defendant conceded he never told the police this version of events. He also admitted he never denied Brenda's accusations when he spoke to her on the recorded jail calls. Instead, he apologized to Brenda and tried to talk her out of testifying against him. He also admitted calling Brenda repeatedly, despite knowing she had a restraining order prohibiting him from contacting her. He further admitted he had hit Brenda in the past and left bruises.
The jury convicted defendant of corporal injury upon the parent of his child (Pen. Code, § 273.5, subd. (a), false imprisonment (§ 236, 237, subd. (a)), and misdemeanor child neglect (§ 237a, subd. (b)) and found true the allegations defendant inflicted great bodily injury (§ 12022.7, subd. (e)). In a bench trial, the court found true the allegation defendant had a strike prior and was previously convicted of a serious felony within the meaning of section 667, subdivision (a). The court sentenced defendant to an aggregate term of 15 years' imprisonment on count 1, including a five-year enhancement for defendant's prior serious felony conviction (§ 667, subd. (a)). The court stayed the sentences on the remaining counts.
DISCUSSION
I. Prosecutorial Misconduct
Defendant argues the prosecutor committed prejudicial misconduct by asking him inflammatory questions that discredited his testimony.
A. Relevant factual background
During cross-examination of defendant, the following colloquy occurred:
"Q. I want to talk to you about this incident that you said occurred at your ... grandma's house, residence, has lots of people who stay there; isn't that correct?
"A. I mean, she has—she lives there and she has, like a roommate or she rents her two rooms out, I think.
"Q. Is it your cousins that hangout there a bit?
"DEFENSE COUNSEL: Objection. Irrelevant, Judge.
"THE COURT: Overruled.
"THE DEFENDANT: Yes.
"[PROSECUTOR:] And, uhm, your cousins do drugs, isn't that correct?
"DEFENSE COUNSEL: Objection. Relevance.
"THE COURT: Overruled.
"THE DEFENDANT: I'm not sure. I don't—
"[PROSECUTOR:] Your cousins have criminal records?
"A. No.
"Q. Okay.
"A. A DUI I think. I don't know.
"Q. So they do have records?
"A. DUI, I think. One has a DUI.
"Q. Your cousins smoke marijuana, don't they?
"A. I don't know.
"Q. Isn't it fair to say that there is drug activity in and out of your grandmother's house?
"A. It's fair to say that we were at that house together a lot most of the time.
"Q. Is it fair to say that there is drug activity in and out of your grandmother's house?
"DEFENSE COUNSEL: Judge, objection. Irrelevant.
"THE COURT: Overruled. You can answer the question.
"THE DEFENDANT: I don't—my grandma drinks.
"[Prosecutor:] Again, not my question. [¶] Is it fair to say that there is drug activity in and out of your grandmother's house?
"A. I wouldn't say that."
B. Standard of review and applicable law
"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.)
"'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. Peoples (2016) 62 Cal.4th 718, 801.)
C. Analysis
Defendant argues the prosecutor's questions regarding the alleged drug activity at his grandmother's house and his cousins' criminal histories amounted to prejudicial prosecutorial misconduct. He asserts the purpose of the challenged questioning was to undermine his and his sister's credibility and to establish his criminal disposition. The People respond defendant forfeited this issue. They further argue defendant failed to establish misconduct or prejudice. We find no prejudicial misconduct.
The People first contend defendant's claim of prosecutorial misconduct is waived because he failed to object to the challenged line of questions on that basis. Rather, he only objected to the prosecutor's questions on relevance grounds, which was insufficient to preserve his misconduct claim for appeal. Defendant responds an objection or request for an admonition would have been futile given that the trial court overruled his relevancy objections.
However, even assuming this issue was adequately preserved for our review, we cannot conclude the prosecutor's questions amounted to prejudicial misconduct. First, by asking Brenda about the incident when she and defendant fought over defendant staying with their child at his grandmother's house, defense counsel opened the door to the prosecutor's questions regarding what prompted the fight, namely Brenda's concerns about defendant's grandmother's house. And when defendant took the stand, the prosecutor was entitled to cross-examine him further about the basis for Brenda's concerns. (See People v. Dykes (2009) 46 Cal.4th 731, 764 ["When a defendant chooses to testify concerning the charged crimes, the prosecutor can probe the testimony in detail and the scope of cross-examination is very broad"].)
Additionally, even if such questions constituted misconduct, defendant has not established the requisite degree of prejudice. Here, the trial court instructed the jury that statements or questions by the attorneys are not evidence:
"Nothing that the attorneys say is evidence. In their opening statements and closing arguments the attorneys discussed the case, but their remarks are not evidence, their questions are not evidence. Only the witness's answers are evidence.
"The attorney's questions are significant only if they help you to understand the witness's answers. Do not assume that something is true
just because one of the attorneys asked a question that suggested it was true." (See CALCRIM No. 104.)
Thus, the court expressly admonished the jury that the prosecutor's questions—including those at issue here—were not evidence and not to make inferences based upon such questions. 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"].) And defendant has provided no basis to conclude that these admonishments did not cure any alleged misconduct.
More importantly, the evidence against defendant was strong. In recorded jail calls, defendant apologized to Brenda for the incident and never denied her statements to him regarding what had occurred. Defendant admitted he tried to get Brenda not to testify against him. He further admitted he had been violent with Brenda in the past. The police found Brenda outside of defendant's sister's home with a facial injury. She repeatedly and consistently reported defendant had punched her and blocked her exit from the bedroom. Defendant's sister testified she went to the bedroom and told defendant to "calm down" and to let Brenda leave. Defendant himself conceded he and Brenda were arguing in the moments leading up to her injury.
Moreover, the prosecutor's alleged improper questions did not elicit incriminating responses by defendant discrediting his testimony. To the contrary, defendant denied his grandmother's house was a hub of illicit activity and further responded he was not familiar with his cousins' criminal histories.
Accordingly, presuming the jury followed the trial court's instructions and considering the strength of the People's evidence inculpating defendant, we cannot conclude defendant's trial was "fundamentally unfair" such that he was denied due process of law or that he suffered prejudice such that it is reasonably probable the trial outcome was affected by any alleged prosecutorial misconduct. (See People v. Shazier (2014) 60 Cal.4th 109, 127 [federal Constitution is violated when prosecutor's behavior "'"infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process"'"; prosecutorial misconduct warrants reversal under state law "only if it is reasonably probable the trial outcome was affected"]; People v. Holt (1984) 37 Cal.3d 436, 458 [prosecutorial misconduct warrants reversal where it is reasonably probable defendant would have obtained a more favorable result in the absence of the error]; see also People v. Hill, supra, 17 Cal.4th at p. 819 [pattern of prosecutorial misconduct so egregious as to inject trial with fundamental unfairness and make conviction denial of due process].)
We reject defendant's first contention.
II. Senate Bill 1393
Senate Bill 1393, signed into law on September 30, 2018, amends Penal Code 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 took effect on January 1, 2019. The law is applicable to those parties, like defendant, whose appeals were not final on the law's effective date.
Here, the trial court imposed five-year prior serious felony enhancements to defendant's sentences on counts 1 and 2 pursuant to Penal Code section 667, subdivision (a). Defendant seeks remand to permit the trial court to review these five-year prior serious felony enhancements in light of Senate Bill 1393. The People agree defendant is entitled to remand on that basis.
When a court is unaware of the scope of its discretionary powers, "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.) The record before us does not reflect the trial court knew it had discretion to strike defendant's Penal Code section 667, subdivision (a) enhancements; nor does it reflect a clear indication by the trial court that it would not have struck these enhancements if it had discretion to do so. Indeed, the court noted it had read section 667, subdivision (a) and concluded the statute did not seem to give him discretion to strike the five-year serious violent felony enhancements. Accordingly, we accept the People's concession and remand this matter for a resentencing hearing to permit the trial court to exercise its discretion regarding whether to dismiss these enhancements.
DISPOSITION
We affirm the conviction and remand the matter for a resentencing hearing.