Opinion
F072915
02-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ERNEST WEATHERS, Defendant and Appellant.
Peter J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan P. Marrs, Lewis A. Martinez, and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. MF011720A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Peter J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan P. Marrs, Lewis A. Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Ernest Weathers was charged and convicted of assault by the personal use of a deadly weapon, a car, on Ronja Stanberry, his girlfriend (Pen. Code, § 245, subd. (a)(1)), based on evidence that he used his car to repeatedly hit the rear of Stanberry's car. Stanberry lost control of her car, it went into a spin and hit a guardrail, and she suffered bruised ribs. Defendant was sentenced to three years, plus seven years for prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant raises numerous evidentiary and instructional issues. We will remand the matter for resentencing and otherwise affirm.
FACTS
At approximately 8:00 a.m. on July 11, 2015, Kern County Sheriff's Deputy Boyce was leaving the parking lot of the sheriff's substation and the courthouse in Mojave. He was about to pull onto Highway 58, also known as "Business 58." He immediately noticed that a white Ford Mustang had apparently been in a traffic collision on Highway 58, across from the substation.
Deputy Boyce testified the Mustang had stopped against the guardrail at an odd angle. The guardrail was damaged and a post was missing. A black car had stopped very close to the Mustang. As Boyce drove toward the scene, the black car "took off" at a high rate of speed and left the area.
Deputy Boyce approached the Mustang and determined that Ronja Stanberry was the driver and sole passenger. The vehicle was no longer operable. Both front airbags had deployed, and there was damage all along the Mustang's front and driver's (left) side. The entire side of the driver's door was damaged, the front bumper was ripped apart, and the front left tire was blown out. There were black paint transfers on the back left side of the car. Boyce did not see any damage on the Mustang's passenger (right) side.
Deputy Boyce testified that Stanberry was still sitting in the driver's seat. She was crying, distraught, and hysterical. He helped her get out of the car. She appeared to be in pain. She was hunched over and grabbing her ribs on her left side, and her knee was scratched.
Deputy Boyce asked Stanberry what happened. Stanberry said that defendant, who was her boyfriend, had hit her car several times and knocked her off the road. Boyce asked if defendant had been driving the black car that left the area, and Stanberry said yes.
The paramedics responded and evaluated Stanberry. During that time, Deputy Boyce spoke to Shadawna Perkins, a witness. After he talked to Perkins and the paramedics treated Stanberry, Deputy Boyce asked Stanberry for more details about what happened.
As we will explain below, Stanberry testified at trial and claimed either not to remember what she told Deputy Boyce or that she did not make certain statements attributed to her. Thereafter, Boyce testified to his observations and interview with Stanberry. We recount the testimony in sequential order of the incident.
Deputy Boyce testified that Stanberry said she had been in a relationship with defendant for about three years and they lived together. Stanberry said she had argued with defendant the previous night, and they broke up. Stanberry said she drove to work that morning at the Family Dollar store. When she arrived at the store, she discovered defendant was in the parking lot. She decided to leave to avoid a confrontation or incident with him. Stanberry said that defendant followed her as she left the store's parking lot, and hit the back of her car with his car. Stanberry said she was afraid for her safety and that defendant was after her. Stanberry said she decided to drive to the sheriff's substation on Highway 58. Stanberry said that defendant kept following her, and continuously hit the back of her car the whole way as they were driving on Highway 58.
Stanberry said that she slowed down because she was going to turn into the parking lot of the sheriff's substation. Defendant again hit the back of her car. Stanberry said she lost control and hit the guardrail. Stanberry said that defendant took off when Deputy Boyce arrived at the scene.
Deputy Boyce testified the sheriff's substation was less than one mile from the Family Dollar Store.
Deputy Boyce testified that he asked Stanberry if there was any history of domestic violence, and she said no. Stanberry did not appear under the influence of alcohol or narcotics.
Defendant returns to the scene
As Deputy Boyce spoke with Stanberry, defendant returned to the scene in a black BMW. Defendant returned about 25 minutes after Boyce saw the same car leave the area. The BMW had scratches, a small dent, and white paint transfers on the front right (passenger side) bumper. There were no dents or paint transfers on the driver's side of the BMW.
Deputy Boyce testified that in his opinion, defendant hit Stanberry's bumper, which caused her vehicle to spin 360 degrees and hit the guardrail on the driver's side of the Mustang. Stanberry's Mustang kept spinning and went into the westbound lane of Highway 58, and stopped when it faced westbound. He believed the incident was similar to a "Precision Intervention Tactic" also known as a "PIT maneuver," used by law enforcement officers to intentionally disable a vehicle during a pursuit.
Deputy Boyce arrested defendant at the scene. Defendant did not appear under the influence.
The Mustang was towed and later "totaled" by Stanberry's insurance company. Stanberry refused to be taken to the hospital, but later went to a hospital in Lancaster for treatment of her ribs.
Stanberry's trial testimony
At trial, Stanberry testified she did not want to be in court and was conflicted about testifying against defendant. Defendant was no longer her boyfriend, but they were friends and she still had feelings for him.
Stanberry admitted she had a prior conviction "over a decade ago" for acquiring access card information in excess of $150.
Stanberry testified they began living together in 2012 or 2013. At the time of this incident, they were living in Mojave.
On July 10, 2015, Stanberry was staying in Lancaster and spoke with defendant on the telephone. They argued because defendant found out she was having an affair. Defendant wanted to continue their relationship but she did not, and they broke up.
Stanberry testified that around 7:45 a.m. on July 11, 2015, she drove to work at the Family Dollar Store in Mojave in the white Ford Mustang. Defendant held the title to the car. Defendant was waiting in the store's parking lot and standing next to his black BMW. Defendant wanted to talk to her. Stanberry testified she was angry and did not want an incident to happen at work, so she drove away.
Stanberry testified defendant followed her. However, Stanberry denied that he repeatedly hit the back of her car. Stanberry testified defendant yelled that he wanted to talk to her, and tried to get her attention. Stanberry drove around the block from her store, past McDonald's restaurant, and defendant "bumped" her car one time, "to tell me ... that he wanted to talk to me."
Stanberry testified she was not scared and kept driving. She turned onto Highway 58 and was going 60 miles per hour. She did not know where she was going, but just wanted defendant to leave her alone so she could go to work. Defendant was still following her, and pulled up to within one or two inches of her rear bumper. They were talking on their cell phones, and defendant asked her to pull over so he could talk to her.
Stanberry decided to turn around and drive back to work because she was late. She was in the right lane. She slowed down to move to the left lane because she was going to make a U-turn. Defendant was still close to her bumper and she thought defendant would also slow down. Stanberry testified defendant did not follow her into the left lane and kept going straight. Stanberry believed defendant "thought he had enough room" but accidentally "clipped" the "right end of the back of my car."
Deputy Boyce testified that when he interviewed Stanberry at the scene, she never said that she was trying to make a U-turn or that it was an accident.
Stanberry's car went into a spin and hit the guardrail. Both airbags opened, and her car was damaged on the front and left (driver's) sides from the guardrail. She suffered bruised ribs and a scratch on her knee.
Stanberry denied that defendant hit her car hard or that that he hit the rear bumper, and testified there was no damage to the rear bumper.
Stanberry testified that she knew defendant was not trying to kill her, he just wanted to talk to her, and it was an accident. She conceded that defendant did not try and help her after the crash. He drove away but later returned. Stanberry testified there was no history of domestic violence between them.
Stanberry testified that she recalled speaking to Deputy Boyce at the scene, and denied saying that defendant repeatedly hit the back of her car as soon as she drove away from work. She could not recall telling Boyce that she was driving to the sheriff's department because she was afraid of defendant.
Shadawna Perkins
Shadawna Perkins, an acquaintance of both Stanberry and defendant, testified she was at a liquor store, located near McDonald's and the Family Dollar Store. She saw Stanberry pull up and stop abruptly. Defendant was behind Stanberry, and he pulled up and hit the back of Stanberry's car. It did not look like he hit Stanberry on purpose.
Perkins testified that defendant got out of his car, went to Stanberry's car, and said, " 'Bitch, you got me f**ked up.' " Stanberry drove away and defendant followed her.
Perkins testified she drove to a nearby gas station on Highway 58. She again saw defendant driving behind Stanberry. Perkins did not see the actual impact between the two cars, but saw Stanberry's car spin out. Perkins drove to Stanberry's car to see if she was okay. Perkins saw defendant drive away. Perkins gave a statement to Deputy Boyce at the scene.
Defendant's telephone calls from jail; prior evidence of domestic violence
As noted, Deputy Boyce arrested defendant after he returned to the scene on July 11, 2015. At trial, Stanberry admitted that defendant called her several times from jail after he was arrested in this case. The prosecution introduced transcripts of six telephone calls that defendant placed to Stanberry from jail.
In all of the calls, defendant responded to the recorded prompts by identifying himself with false first names. Defendant used the majority of the conversations to tell Stanberry he still loved her and wanted to work things out. She reminded defendant about prior incidents when he put his hands on her and choked her. In the later calls, defendant instructed her not to appear in court.
Prior domestic violence incidents
In the first call, defendant identified himself as "Troy." Stanberry asked why he was using a different name. Defendant said he did not have a "pin number" from the jail.
Stanberry told defendant that he injured her ribs and totaled her car. Defendant asked why she was so angry. Stanberry said he had disrupted both their lives. Defendant asked what he did. Stanberry replied that he could have killed her. Defendant repeatedly said it was an accident, and he loved her and wanted to stay with her. Stanberry repeatedly replied that it was not an accident, he tried to kill her, he was pushing her car and on her "motherf**king" bumper," and she could not brake.
Defendant asked about Stanberry's other relationship. Stanberry replied that had nothing to do with it, and added: "I'm thinking about from the first point you put your hands on me and then you put your hands on me again." (Italics added.)
Defendant wanted to explain. Stanberry said he had "choked" her. Defendant promised never to do it again. Stanberry said that he did, "now you tried to kill me," and that he drove off even though she could have been dead. Defendant said he was upset because he kept thinking about how she was screaming in the car.
In the second call, defendant told Stanberry he loved her and wanted to work it out, but she cheated on him. Stanberry asked if cheating on him was "bigger than you trying to kill me" and leaving the scene. Defendant said he came back to check on her. Stanberry reminded defendant that he had "put your hands on me. You bruised me up," and "[t]hen after that you choked me." (Italics added.)
In the third call, defendant said that he did not do anything intentionally to her, and just wanted her to pull over. Defendant promised to change and said he had treated her "harsh."
Defendant referred to an incident when they went to the park on Father's Day, and "I seen them bruises on you that hurted [sic] me so bad," and that Stanberry "brought tears to my eyes" when she said that she never thought defendant " 'would be the one hitting me.' " Defendant said things could work out. Stanberry replied that she had heard this before.
Stanberry told defendant that he wrecked her car, she almost lost her job, she could have been killed, and he drove away. Defendant said he was scared, and he had been having nightmares about what happened. Stanberry said she had nightmares of "twirling around" in the car.
Stanberry said, "I told you once you put your hands on me that was gonna be easier and easier and that's exactly what you did." (Italics added.)
Instructions not to appear in court
In the fourth call, defendant told Stanberry that he was going to ask for a speedy trial, and that she could not go to court no matter what. Stanberry said "they" were trying to contact her, she was not answering their calls, and she would not come to court.
Defendant said that if they subpoenaed her, "just don't come" because "they can't do nothing" to her, and she had to "ignore the subpoenas no matter what."
In the fifth call, defendant promised to treat Stanberry with respect and again insisted it was an accident. Stanberry said it was not an accident, he just did not expect it to happen, and he did not understand what she was going through.
Stanberry again mentioned the time that defendant "first put your hands on me," that he did it "twice," and "then you tried to kill me."
Instructions about the bench warrant and what to say at trial
In the sixth call, defendant told Stanberry not to panic, but there was a bench warrant out for her for failure to appear. He told Stanberry to go to court, turn herself in, and she would be cited out. Stanberry was upset that they would come to work. Defendant assured her that they would not serve a petty misdemeanor warrant on her.
Defendant told Stanberry that he would give her instructions for the next time she was ordered to come to court. Stanberry warned him not to say anything on the telephone, and that she knew what to do. Defendant said: "All you gotta do is say I don't remember." Stanberry agreed she would say that she could not recall.
Defendant told Stanberry to "holler at Shadawna" if she had a chance, referring to Perkins. Stanberry said she had already talked to her, and "she didn't say nothing about it." Defendant said to let her know what to do.
Stanberry's testimony about the telephone calls
At trial, the prosecutor asked Stanberry about her statements from the telephone calls about the time defendant put his hands on her. Stanberry initially said she did not recall.
Stanberry then testified the prior incidents occurred when they argued at their home, she hit defendant in his face and chest with her hands, defendant pinned her down "to restrain me," and she "bruise[d] very easy" because "I'm anemic, so it's easy to bruise me." She did not report the incident to the police "because I'm the one who was hitting him first. He was trying to restrain me from hitting him."
Stanberry testified another incident occurred when she hit defendant at his sister's house. Defendant's sister tried to stop it.
Stanberry admitted that defendant had previously choked her, but he put his hands on her throat to restrain her because "I used to fight him."
Stanberry also admitted that during the telephone calls, she accused defendant of trying to kill her during the collision on Highway 58. Stanberry testified she made those statements because she was angry, hurt, and upset about her car, and she was not saying anything logical.
Stanberry conceded that defendant told her not to come to court even if she received a subpoena; a subpoena was later issued for her failure to appear; and she appeared in court and was ordered to return. Stanberry did not want to press charges so she figured that she did not have to worry about testifying. Stanberry testified that she had talked to Perkins about her statement, and they had been coming to court together for the trial.
Stanberry testified that in August 2015, during the pendency of this case, she contacted the district attorney's office and asked for the charges to be dropped. Stanberry said it was an accident, the police report "twisted" her words around, and denied that she claimed defendant rammed her car. Stanberry testified that she told Deputy Boyce at the scene that she did not want to press charges.
DEFENSE EVIDENCE
Defendant testified he had prior felony convictions for possession of stolen property in 2005, commercial burglary in 2009, and theft/burglary in 2015. He was using drugs during those incidents and had been clean for four or five years.
Defendant testified about two prior incidents with Stanberry that occurred in the weeks before Father's Day, and that were mentioned during the telephone calls from jail. Defendant testified Stanberry frequently drank, and she would become belligerent and "mouthy."
In the first incident, they were at the home of defendant's brother and they argued. Stanberry got loud, started "socking on me" and talking "crazy," and slapped and hit defendant. Defendant testified he did not touch her during this incident and retreated when she attacked him.
During the second incident, they argued when defendant was watching a football game. Stanberry ran at him and tried to hit him; she swung at him. Defendant grabbed her hand and neck. She fell on the bed, he held her, and he told her that she had to stop. Defendant used more force than she did because she was coming after him. He applied "just enough force to just take her down" to defend himself.
On Father's Day, defendant and Stanberry were with their families. Defendant noticed the bruises on Stanberry's arm from the recent incident. Defendant told Stanberry and her mother that he would never do that again, because his "policy" was not to put his hands on women since he had seen his own mother beaten.
Defendant testified that just before the traffic incident, Stanberry cheated on him. He was hurt and disappointed but wanted to stay with her. The night before the incident, they talked on the telephone, and he believed Stanberry had been drinking. On the morning of the incident, he drove to Family Dollar Store so he could talk to Stanberry before she went to work. He did not want her to drive because he believed she had been drinking.
Deputy Boyce testified Stanberry did not appear to be under the influence after the collision.
Stanberry saw defendant and pulled out of the parking lot. Defendant followed her. Defendant admitted he drove close behind her. She suddenly stopped, he did not have time to break, and he hit her car. Defendant testified he did not intentionally hit her car. He got out of his car to look at the damage and Stanberry drove away. He yelled at her to slow down and denied cursing at her.
Defendant testified he again followed Stanberry and he was going very fast to keep up with her. He yelled from his window for her to stop. He also talked to Stanberry over the cellphone. Defendant admitted he was driving relatively close and tailgating Stanberry when they were on Highway 58. His emotions were high and he was hurt.
Defendant thought Stanberry slowed down to turn. He could not stop in time and hit the back of her car because he was tailgating. Stanberry lost control, skidded, and went into the guardrail. Defendant was shocked because it happened so fact. He never intended to hit her car. He denied that he was trying to perform a PIT maneuver to stop Stanberry, and did not know how to do that.
Defendant admitted that he panicked and drove away. He left before Deputy Boyce got there. Defendant gathered his "wits" and drove back about 10 minutes later to make sure everything was all right. Boyce arrested him when he returned.
Defendant testified he called Stanberry from jail, even though his attorney advised him not to make any calls. Defendant used the names of different inmates because he did not have a PIN code to make calls from jail. He was not trying to hide his identity. Defendant told Stanberry not to go to court because he did not want to "go through what I'm going through right now and I didn't want to drag her through it. We've been through enough ...." He later advised her to go to court and clear up the warrant that was issued against her.
DISCUSSION
I. Admission of Prior Acts of Domestic Violence
Defendant contends the court abused its discretion when it granted the prosecution's motion to admit prior acts of domestic violence pursuant to Evidence Code section 1109.
Defendant argues that the evidence was more prejudicial than probative because the prior acts were introduced through the tape-recorded telephone conversations when defendant called Stanberry from jail. Defendant further argues the prior incidents, where he allegedly used his hands to inflict bodily injury, were not similar to the instant case, where he used his car; and it was extremely difficult to defend himself against the prior incidents since there were no other witnesses to those events. Defendant further contends the jury was improperly instructed to consider these incidents as disposition evidence.
A. Background
Prior to trial, the prosecution moved to introduced evidence of defendant's prior acts of domestic violence pursuant to Evidence Code section 1109. The evidence was based on statements about prior incidents, described on the recorded telephone calls that defendant placed to Stanberry from jail, when Stanberry said he put his "hands" on her, inflicted bruises, and choked her. The prosecutor said that based on the statements between defendant and Stanberry, it appeared the incidents happened around Father's Day, about one month before the collision charged in this case. The prosecutor further argued the charged offense and the prior incidents were similar because they involved physical incidents that followed domestic violence disputes, and were probative of defendant's intent since he claimed the collision was an accident.
Defense counsel replied that a physical incident like putting his hands around her neck was different from ramming her car. Counsel argued the references to the prior incidents would be prejudicial since defendant repeatedly said the collision was an accident and not intentional.
Defense counsel also argued Evidence Code section 1109 was unconstitutional and violated due process, but acknowledged similar arguments had been rejected.
The court held the prior acts were the "type of evidence" the Legislature intended to allow in based on the enactment of Evidence Code section 1109. The court also found the probative value "substantially outweighed" any prejudice to defendant under Evidence Code section 352, because the evidence was "significant" to the prosecution's case under the facts, where defendant claimed the current incident was an accident.
As set forth above, the prosecutor played the recordings of the telephone calls to the jury. Thereafter, the prosecutor questioned Stanberry about the incidents she described during those calls, where she said defendant hit and choked her. Stanberry claimed she was the aggressor during those incidents and that she bruised easily. When defendant testified, he similarly claimed Stanberry was the aggressor and he just used enough force to push her away.
During the instructional conference, the court stated that it was going to give CALCRIM No. 852 on the consideration of the prior acts of domestic violence, with additional language not to consider the evidence for any other purpose.
The court granted defendant's request to add language to CALCRIM No. 852 about self-defense, because it was consistent with defendant's testimony that he only used force in the prior acts to defend himself.
In CALCRIM No. 852, the court instructed the jury that the People had " 'presented evidence that the defendant committed domestic violence that was not charged in this case....' "
" '... You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence.
" 'Proof by a preponderance of the evidence is different than the burden of proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude it's more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely.
" 'If you decide that the defendant committed the uncharged domestic violence, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and, based upon that decision, also conclude that the defendant was likely to commit an assault with a deadly weapon as charged here.
" 'If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of assault with a deadly weapon. The People must still prove the charge beyond a reasonable doubt.
" 'Do not consider this evidence, that is, evidence of uncharged domestic violence, for any other purpose, but keep in mind that the defendant may act in self-defense if, one, he reasonably believed that he was in imminent danger of being touched unlawfully; two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and, three, the defendant used no more force than was reasonably necessary to defendant against that danger.' "
"Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109)." (People v. Reyes (2008) 160 Cal.App.4th 246, 251.)
Evidence Code section 1109 provides, in relevant part, that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a).)
Evidence Code section 1109 defines "domestic violence" by reference to section 13700 (Evid. Code, § 1109, subd. (d)(3)), to mean "abuse committed against an adult" who is a cohabitant or former cohabitant. "Abuse" is defined as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (§ 13700, subds. (a), (b); Evid. Code, § 1109, subd. (d)(3).)
" '[T]he California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.' [Citation.] [Evidence Code] [s]ection 1109, in effect, 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]' [Citations.] '[I]t is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.' [Citation.]" (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.)
" ' "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." ' [Citation.] [Evidence Code] [s]ection 1109 was intended to make admissible a prior incident 'similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.' [Citation.] Thus, the statute reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later accusation. [Citation.] Indeed, proponents of the bill that became section 1109 argued for admissibility of such evidence because of the 'typically repetitive nature' of domestic violence. [Citations.] This pattern suggests a psychological dynamic not necessarily involved in other types of crimes. [Citation.]" (People v. Johnson (2010) 185 Cal.App.4th 520, 531-532, fns. omitted.)
"[D]omestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The special relationship between victim and perpetrator in both domestic violence and sexual abuse cases, with their unusually private and intimate context, easily distinguishes these offenses from the broad variety of criminal conduct in general. Although all criminal trials are credibility contests to some extent, this is unusually - even inevitably - so in domestic and sexual abuse cases, specifically with respect to the issue of victim credibility. The Legislature could rationally distinguish between these two kinds of cases and all other criminal offenses in permitting the admissibility of previous like offenses in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.)
The admission of evidence pursuant to section 1109, and its counterpart, section 1108, has repeatedly been held not to violate a defendant's constitutional rights to due process and equal protection. (People v. Brown, supra, 192 Cal.App.4th at p. 1233, fn. 14.) "The admission of prior acts as propensity evidence encompasses both charged and uncharged acts. [Citations.]" (Id. at p. 1233.)
"Even if the evidence is admissible under [Evidence Code] section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Brown, supra, 192 Cal.App.4th at p. 1233, fn. omitted.) "We have recognized that, when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 213.)
C. Analysis
In this case, the court did not abuse its discretion when it admitted evidence of the prior acts of domestic violence. We further find the court was aware of its discretion pursuant to Evidence Code section 352 and made the appropriate findings.
The disputed issue in this case was whether defendant repeatedly and intentionally rammed Stanberry's car and ultimately sent it spinning into the guardrail, or it was an accident. Stanberry's initial statement to Deputy Boyce was that defendant was angry that she was involved with another person and she would not talk to him that morning. When defendant called Stanberry from jail and claimed it was an accident, she reminded him of the prior incidents where he put his "hands" on her, inflicted bruises, and also choked her.
During those calls, Stanberry linked the prior and current incidents together. In the first call, as Stanberry recounted the prior incidents, defendant promised never to do it again; Stanberry replied that "now you tried to kill me," and he drove away even though she could have been dead. In the third call, defendant again claimed the crash was an accident but Stanberry replied: "I told you once you put your hands on me that was gonna be easier and easier and that's exactly what you did."
At trial, both Stanberry and defendant tried to minimize the prior incidents and claimed that Stanberry was the aggressor, and further claimed that defendant accidentally hit Stanberry's car on Highway 58 because he was driving too close. The court properly admitted evidence about the prior incidents because it was probative to the disputed question of whether defendant intentionally or accidentally caused the crash.
Defendant claims that the evidence was unduly prejudicial because the prior incidents occurred between defendant and Stanberry, and there were no other witnesses. Such situations were expressly anticipated by the enactment of section Evidence Code section 1109 because it represented the Legislature's determination that propensity evidence is " 'uniquely probative' " because of the " 'typically repetitive nature' " of domestic violence (People v. Johnson, supra, 185 Cal.App.4th at pp. 531-532), that is "quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator." (People v. Jennings, supra, 81 Cal.App.4th at p. 1313.)
Finally, the court correctly instructed the jury with CALCRIM No. 852 on how to evaluate this evidence. This instruction has been repeatedly upheld as a correct statement of the applicable law. (People v. Johnson (2008) 164 Cal.App.4th 731, 739-740.) In addition, the court granted defendant's request and added the language about self-defense, consistent with defendant's trial claim that he touched Stanberry during the prior incidents in self-defense and she was the aggressor.
II. Failure to Instruct on Assault as a Lesser Included Offense
Defendant was charged with one count of assault with a deadly weapon, his vehicle, in violation of section 245, subdivision (a)(1). Defendant contends the court had a sua sponte duty to instruct the jury on simple assault as a lesser included offense because there was evidence that defendant bumped Stanberry's car several times.
"The jury should have been given the option of returning a verdict consistent with the determination that the Highway 58 incident was an accident (and thus not an assault at all), whereas the liquor store bump was an assault (but not with a deadly weapon). Instructions on the lesser included offense of simple assault would have allowed the jury to consider each of these options."
A. Lesser Included Offenses
" ' "The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." [Citations.] "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." [Citations.]' [Citations.] 'Nevertheless, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense ...." [Citation.] Such instructions are required only where there is "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense. [Citations.]' [Citation.]" (People v. Whalen (2013) 56 Cal.4th 1, 68, disapproved on another ground by People v. Romero and Self (2015) 62 Cal.4th 1, 44; People v. Rogers (2006) 39 Cal.4th 826, 866-867.)
The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. (People v. Breverman (1998) 19 Cal.4th 142, 154-155)
However, "the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense. [Citations.]" (People v. Kelly (1990) 51 Cal.3d 931, 959.) "[T]he obligation to instruct on a lesser included offense does not arise when there is no evidence that the offense was less than that charged. [Citations.]" (People v. Wyatt (2012) 55 Cal.4th 694, 702-703 (Wyatt).)
We review the trial court's failure to instruct on a lesser offense under the de novo standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
B. Assault and Use of a Motor Vehicle
Simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240)
"[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.) "The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. [Citation.] The evidence must only demonstrate that the defendant willfully or purposefully attempted a 'violent injury' or 'the least touching,' i.e., 'any wrongful act committed by means of physical force against the person of another.' [Citations.] In other words, '[t]he use of the described force is what counts, not the intent with which same is employed.' [Citation.] Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state. [Citations.]" (People v. Colantuono (1994) 7 Cal.4th 206, 214-215, superseded by statute on other grounds as explained in People v. Conley (2016) 63 Cal.4th 646, 660, fn. 4.)
Defendant was charged with violating section 245, subdivision (a)(1), which punishes assaults committed "with a deadly weapon or instrument other than a firearm." "Whether or not the victim is injured is immaterial because the statute focuses on use of a deadly weapon or instrument ...." (People v. Russell (2005) 129 Cal.App.4th 776, 782.)
" 'As used in section 245, subdivision (a)(1), a "deadly weapon" is "any object, instrument, or weapon that is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury." ' [Citation.] The [California] Supreme Court has explained section 245 contemplates two categories of deadly weapons: In the first category are objects that are 'deadly weapons as a matter of law' such as dirks and blackjacks because 'the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.' [Citations.]" (People v. Brown (2012) 210 Cal.App.4th 1, 6-7.)
Simple assault is a lesser included offense of assault upon the person of another with a deadly weapon or instrument other than a firearm. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748; § 245, subd. (a)(1)).
"A car can be operated in such a manner as to constitute a deadly weapon. [Citation.]" (People v. Jones (1981) 123 Cal.App.3d 83, 97, questioned on other grounds in People v. Williams, supra, 26 Cal.4th at p. 788.) "The law makes clear a person who operates or drives a vehicle in an attempt to injure another person has committed assault with a deadly weapon, to wit, the car." (People v. Russell, supra, 129 Cal.App.4th at p. 782, fn. omitted; see also People v. Oehmigen (2014) 232 Cal.App.4th 1, 10-11; People v. Wright (2002) 100 Cal.App.4th 703, 706, 724-725.)
Defendant filed a letter brief with this court that one of the cases that finds a car could be used as a deadly weapon is People v. Perez (2016) 3 Cal.App.5th 812, and the California Supreme Court had granted review in that case. We have not relied on Perez but note that in People v. Frierson (2017) 4 Cal.5th 225, 240, footnote 8, the court recently disapproved Perez only as to its interpretation of the Three Strike Reform Act.
The court does not have the duty to sua sponte instruct the jury on simple assault as a lesser included offense if, based on the evidence presented at trial, the jury could find a defendant either guilty of assault with a deadly weapon or not guilty at all, but could not find the defendant guilty only of simple assault. (Wyatt, supra, 55 Cal.4th at p. 704; People v. Page (2004) 123 Cal.App.4th 1466, 1474.)
For example, in Wyatt, supra, 55 Cal.4th 694, the defendant was convicted of involuntary manslaughter and assault on a child causing death, when his 14-month-old son died from shock and internal bleeding due to blunt force trauma to the chest and abdomen. (Id. at pp. 696-697.) The defendant argued the trial court should have instructed the jury on simple assault as a lesser included offense of assault on a child causing death, based on the defendant's statements that he had been wrestling and throwing the child around, he accidentally fell on top of him, and he did not intentionally inflict any blows or trauma to the child. (Id. at pp. 696-697, 699.)
Wyatt rejected the defendant's argument: "When compared, the prosecution's evidence [citation] and defendant's evidence presented the jury with two scenarios on the charge of child assault homicide. The prosecution's evidence supported its theory that defendant was guilty of administering multiple blunt force blows to [the child] that caused massive internal trauma and resulted in his death. Conversely, defendant offered evidence to show he was not guilty of the charged crime because [the child] died as a result of a single unfortunate accident when the child unforeseeably rolled or turned as defendant jumped on the bed. After receiving instructions on child assault homicide and accident, the jury returned a verdict finding defendant guilty." (Wyatt, supra, 55 Cal.4th at p. 703.)
"Here, the record established that defendant weighed 170 pounds and that [the child], who was 14 months old, weighed only 26 pounds and stood 31 inches tall. According to defendant's testimony, [the child] was lying on the bed when defendant purposefully jumped up and onto the bed, intending to catch [the child] in the space between defendant's body and elbow (i.e., under defendant's armpit) upon landing. Despite defendant's claimed intent, given the obvious weight disparity between defendant and [the child], [the child's] size and tender age, and the way in which defendant jumped up and over [the child] in order to land in such close proximity to him, no reasonable person would conclude that defendant's act would probably result in only minor injury to Reginald.
"Nonetheless, even if a reasonable person might believe that minor or moderate harm was a possible outcome, the trial court is not required to 'instruct sua sponte on the panoply of all possible lesser included offenses.' [Citation.] Such instructions are required only when there is substantial evidence that, if the defendant is guilty at all, he is guilty of the lesser offense, but not the greater. [Citations.] ... Here, it would be speculative at best to construe the trial evidence in this case as supporting a verdict of only simple assault. [Citation.] Accordingly, the trial court had no sua sponte duty to instruct on that lesser offense. [Citations.]" (Id. at pp. 703-704, italics in original, fn. omitted.)
In People v. Golde (2008) 163 Cal.App.4th 101 (Golde), the defendant was convicted of assault with a deadly weapon, a vehicle, based on evidence that his girlfriend jumped out of his car, and he repeatedly used and maneuvered his car to try and hit her. (Id. at p. 107.) On appeal, the defendant argued there the court had a sua sponte duty to instruct on simple assault as a lesser included offense. The defendant asserted a car was not inherently deadly, and the jury could have found it was not used as such, based on the defendant's intent. (Id. at p. 116.) In support of this argument, the defendant relied on People v. Beasley (2003) 105 Cal.App.4th 1078, "where the defendant beat the victim with a broomstick, there was insufficient evidence that the broomstick, as used by the defendant, was capable of causing great bodily injury, and the appellate court reduced the conviction from assault with a deadly weapon or force likely to produce great bodily injury [citation] to simple assault." (Golde, supra, 163 Cal.App.4th at p. 116, citing People v. Beasley, supra, 105 Cal.App.4th 1078.)
Golde rejected the defendant's reliance on Beasley because "a car is very different from a broomstick. Although a jury may consider the nature of an object and how it was used in determining whether an object not inherently dangerous is used as such [citation], it is ludicrous to suggest on this record that defendant committed only simple assault when he drove a motor vehicle toward the four-foot, 11-inch, 83-pound victim, and repositioned the vehicle in her direction when she tried to move out of its way." (Golde, supra, 163 Cal.App.4th at p. 116, fn. omitted.) Golde concluded the evidence did not require the court to instruct on simple assault as a lesser included evidence. (Id. at pp. 115-117.)
C. Analysis
As we have explained, the jury in this case was presented with two opposing versions of what happened. Deputy Boyce testified to Stanberry's statements at the scene - that defendant used his vehicle to hit the back of her car, he did so repeatedly and intentionally, she headed to the sheriff's substation because she feared for her life, and defendant again hit the rear of her car so that her car spun into the guardrail. During the jail calls, defendant claimed it was an accident but Stanberry again said that he intentionally rammed her car and made her car spin out, and he tried to kill her. At trial, however, both Stanberry and defendant claimed it was an accident, and the collision only resulted because defendant was driving too close since he wanted to talk to her. In closing argument, the prosecutor clarified that the charged offense was based on defendant's act of intentionally hitting the back of Stanberry's car and sending it into the guardrail, and that it was not an accident.
As explained above, a jury should not be instructed on simple assault as a lesser included offense if, based on the evidence presented at trial, the jury could find the defendant either guilty of assault with a deadly weapon or not guilty at all, but could not find the defendant guilty only of simple assault. (Wyatt, supra, 55 Cal.4th at p. 704.) Defendant was either guilty of using his car to assault Stanberry, or not guilty of any offense. The court was not obliged to instruct on simple assault as a lesser included offense.
During the instructional conference, defense counsel stated that he was not requesting an instruction on a lesser included offense because "there's case authority preventing me from seeking that lesser." As noted above, the obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. (People v. Breverman, supra, 19 Cal.4th at pp. 154-155) Counsel may have recognized the evidence did not support a lesser included offense.
III. CALCRIM No. 372
Defendant asserts the court should not have instructed the jury with CALCRIM No. 372, flight from the scene, because it was an improper pinpoint instruction.
Defendant further contends the court should have given his requested modification to CALCRIM No. 372, that his return to the scene, or absence of flight, was a circumstance tending to show innocence.
A. Background
During the instructional conference, the court stated it was going to give CALCRIM No. 372 on defendant's flight, as follows:
" 'If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it's up to you to decide the meaning and importance of that conduct; however, evidence that the defendant fled cannot prove guilt by itself.' "
The court stated that defendant had requested additional language for this instruction:
" 'If the defendant voluntarily returned, it's also a factor that [you] may consider, and you may decide the meaning or importance of that conduct as well.' "
The prosecutor objected to defendant's proposed language because it was not supported by law. The prosecutor argued the evidence showed that defendant fled immediately after he rammed Stanberry's car into the guardrail, as stated in CALCRIM No. 372, and it did not matter "if he fled for five minutes or 30 minutes. The bottom line is he fled." The prosecutor suggested defense counsel could argue the matter instead.
The court gave CALCRIM No. 372, as quoted above, and denied defendant's request for the modified language about how defendant returned to the scene.
B. Flight
Section 1127c states:
"In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
The court has a sua sponte duty to instruct on flight whenever the prosecution relies on such evidence to show consciousness of guilt. (People v. Howard (2008) 42 Cal.4th 1000, 1020; People v. Henderson (2003) 110 Cal.App.4th 737, 742; People v. Williams (1997) 55 Cal.App.4th 648, 651 (Williams).)
" 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." ' [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 328, italics in original.)
" ' "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." ' [Citations.] 'Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.' [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055, italics in original; People v. Carter (2005) 36 Cal.4th 1114, 1182.)
CALCRIM No. 372 does not reduce the People's burden of proof or create impermissible inferences. It is not an impermissible pinpoint instruction and has been held constitutional. (People v. Mendoza (2000) 24 Cal.4th 130, 180-181, superseded by statute on other grounds as explained in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8; People v. Howard, supra, 42 Cal.4th at p. 1021; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159; People v. Paysinger (2009) 174 Cal.App.4th 26, 31; People v. Price (2017) 8 Cal.App.5th 409, 456.) "It has long been accepted that if flight is significant at all, it is significant because it may reflect consciousness of guilt, which in turn tends to support a finding of guilt. [Citation.] That CALCRIM No. 372 tells the jury this does not in any way make the instruction unconstitutional." (People v. Paysinger, supra, 174 Cal.App.4th at pp. 31-32.)
C. Absence of Flight
There is no reciprocal duty to instruct on the significance of the absence of flight, even on request. (People v. Staten (2000) 24 Cal.4th 434, 459 (Staten); People v. Williams, supra, 55 Cal.App.4th at p. 651.) "[S]uch an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. [Citation.] Our conclusion therein also forecloses any federal or state constitutional challenge based on due process. [Citation.]" (Staten, supra, 24 Cal.4th at p. 459.)
"[E]ven assuming the absence of flight may be relevant to some extent, it is often, ... 'so laden with conflicting interpretations, that its probative value on the issue of innocence is slight.' [Citation.]" (Williams, supra, 55 Cal.App.4th at pp. 651-652.) "Flight is by its nature an active, conscious activity which readily and logically tends to support the inference of consciousness of guilt, as described in [the standard jury instruction]. Indeed, the inference of consciousness of guilt from flight is one of the simplest, most compelling and universal in human experience. [Citation.] The absence of flight ... is far less relevant, more inherently ambiguous and 'often feigned and artificial.' [Citations]." (Id. at p. 652.)
"[U]nlike the flight of an accused from the scene of a crime or after accusation of a crime, the absence of flight presents such marginal relevance it is usually not even admissible. [Citation.]" (Williams, supra, 55 Cal.App.4th at p. 652.) "Since flight and the absence of flight are not on similar logical or legal footings, the due process notions of fairness and parity ... are inapplicable." (Ibid.)
Any alternative explanations for flight conduct go to the weight of the evidence, which is a matter for the jury and not the court to decide. (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.)
D. Analysis
The court properly instructed the jury with CALCRIM No. 372 because there was evidence defendant immediately left the scene under circumstances that could give rise to an inference of consciousness of guilt. (People v. Bonilla, supra, 41 Cal.4th at p. 329.) Deputy Boyce testified that as he left the substation, he saw Stanberry's white Mustang stopped against the damaged guardrail at an odd angle. A black car had stopped very close to the Mustang. As Boyce drove toward the scene, the black car "took off" at a high rate of speed and left the area. When Boyce spoke to Stanberry, she said defendant hit her car several times and knocked her off the road, he was driving the black car, and he took off when Boyce arrived. In the course of the jail calls, Stanberry repeatedly told defendant that he tried to kill her and he drove away after her car spun out. Defendant admitted he drove away but said he was upset about what happened. When he testified at trial, defendant also admitted he drove away, but said he panicked and had to gather his wits about what happened.
As for defendant's requested modification to the flight instruction, Deputy Boyce testified defendant returned about 25 minutes later, after law enforcement and paramedics interviewed Stanberry and were investigating the collision. Defendant testified that he returned to make sure Stanberry was okay.
Defendant sought the modification to essentially blunt the impact of the inferences that arise from the flight instruction. As the California Supreme Court explained, however, the court is not required to instruct on the absence of flight. (People v. Staten, supra, 24 Cal.4th at p. 459.) "The absence of flight ... is far less relevant, more inherently ambiguous and 'often feigned and artificial.' [Citations]." (Williams, supra, 55 Cal.App.4th at p. 652.) Defense counsel could have addressed his return to the scene in closing argument but failed to do so.
IV. CALCRIM No. 875
The court instructed the jury with CALCRIM No. 875 on the elements of the charged offense of assault with a deadly weapon. One of the elements is that the defendant must have been "aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone." (CALCRIM No. 875.)
Defendant contends the instruction and this particular phrase about reasonableness are defective because the instruction should include additional language, that the jury had to view the facts as they appeared to defendant at the time regarding the element of reasonableness, "even if his perception [was] erroneous," as stated in the instruction for mistake of fact. Defendant concludes that the court's failure to add this language is reversible per se.
A. Background
The jury was instructed on reasonable doubt, and that the People had the burden to prove defendant's guilty beyond a reasonable doubt and " '[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise.' "
The court gave several instructions on intent. CALCRIM No. 225 stated that the People had to prove defendant did the charged act and that he acted with a particular mental state, and the instruction for the crime would explain the required mental state.
CALCRIM No. 250 stated that the charged offense required proof of the union or joint operation of act and wrongful intent, and that a person acts with wrongful intent when he " 'intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime.' "
CALCRIM No. 251 stated that to find a person guilty of the charged offense, " 'that person must not only intentionally commit the prohibited act but must do so with a specific mental state,' " and again stated that the mental state would be explained in the instruction for the crime.
As we explain in issue V, below, the jury received CALCRIM No. 3404, that defendant was not guilty of the offense if he acted without the intent required for that crime but acted instead accidentally. " 'You may not find defendant guilty of assault with a deadly weapon unless you are convinced beyond a reasonable doubt that he acted with the required intent.' "
The jury then received CALCRIM No. 875, defining the elements of assault with a deadly weapon.
" 'The defendant is charged in Count 1 with assault with a deadly weapon other than a firearm ....
" 'To prove the defendant is guilty of this crime, the People must prove that, one, the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; the defendant did that act willfully; when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.'
"Remember when I said earlier when we talked about mental state? That is the mental state. I am going to read that 'mental state' again. I'm not trying to emphasize this instruction, but, since I told you I was going to point it out, I want to point it out:
" 'When the defendant acted he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone and when the defendant acted he had the present ability to apply force with a deadly weapon.
" 'Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he intent to break the law, hurt someone else or gain any advantage.
" 'The term "application of force" and "apply force" mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person through his clothing or her clothing is enough. The touching does not have to cause pain or injury or any kind. The touching can be done directly or by causing an object to touch another person.
" 'The People are not required to prove that the defendant actually touched someone.
" 'The People are not required to prove that the defendant actually intended to use force against someone when he acted.
" 'No one needs to have actually been injured by the defendant's act, but if someone was injured, you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault.
" 'A deadly weapon other than a firearm is an object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury.' " (Italics added.)
B. Assault and Intent
As explained above, "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams, supra, 26 Cal.4th at p. 790.)
"The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. [Citation.] The evidence must only demonstrate that the defendant willfully or purposefully attempted a 'violent injury' or 'the least touching,' i.e., 'any wrongful act committed by means of physical force against the person of another.' [Citations.] In other words, '[t]he use of the described force is what counts, not the intent with which same is employed.' [Citation.] Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state. [Citations.]" (People v. Colantuono, supra, 7 Cal.4th 206, 214-215.)
C. Defendant's Argument
Defendant does not contend that CALCRIM No. 875 omitted a recognized element for the crime of assault with a deadly weapon. Instead, he asserts the element that addressed the actor's objective awareness - "when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone"—should also include language about his own subjective awareness. (Italics added.)
In making this argument, defendant relies on cases that address other legal doctrines. Defendant relies on a case about self-defense, which held that "the law recognizes the justification of self-defense not because the victim 'deserved' what he or she got, but because the defendant acted reasonably under the circumstances. Reasonableness is judged by how the situation appeared to the defendant, not the victim." (People v. Minifie (1996) 13 Cal.4th 1055, 1068, italics in original.)
Defendant also relies on cases that address the admissibility of the doctrine formerly known as "battered women's syndrome," that "[t]he jury must consider defendant's situation and knowledge, which makes the evidence relevant, but the ultimate question is whether a reasonable person, not a reasonable battered woman, would believe in the need to kill to prevent imminent harm. Moreover, it is the jury, not the expert, that determines whether defendant's belief and, ultimately, her actions, were objectively reasonable," and that "[e]vidence merely showing that a person's use of deadly force is scientifically explainable or empirically common does not, in itself, show it was objectively reasonable. To dispel any possible confusion, it might be appropriate for the court, on request, to clarify that, in assessing reasonableness, the question is whether a reasonable person in the defendant's circumstances would have perceived a threat of imminent injury or death, and not whether killing the abuser was reasonable in the sense of being an understandable response to ongoing abuse; and that, therefore, in making that assessment, the jury may not consider evidence merely showing that an abused person's use of force against the abuser is understandable." (People v. Humphrey (1996) 13 Cal.4th 1073, 1087, 1088, italics in original, fn. omitted.)
" '[I]ntimate partner violence' ... used to be called 'battered women's syndrome.' " (People v. Becerrada (2017) 2 Cal.5th 1009, 1019; Evid. Code, § 1107.)
Defendant further relies language from cases involving the reasonableness of detentions under the Fourth Amendment (People v. Brown (2015) 61 Cal.4th 968, 978); defenses to bigamy (People v. Vogel (1956) 46 Cal.2d 798, 804; defenses to "statutory rape" (People v. Hernandez (1964) 61 Cal.2d 529, 534); and the defense of mistake of fact (People v. Scott (1983) 146 Cal.App.3d 823, 831).
Based on these cases, defendant asserts CALCRIM No. 875 should have included additional language to define assault:
"All of the above cases make clear that the evaluation of the circumstances must be made as they reasonably appear to the actor, even if his perception is erroneous. There is no reason why the same standard should not be applicable to the third element of assault with a deadly weapon: 'When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.' [Citation.] The instruction should have apprised the jury of the fact that evaluating what facts [defendant] was aware of, the jury must consider the facts as they reasonably appeared to [defendant]." (Underline in original, italics added.)
We decline defendant's invitation to create a subjective element for the crime of assault based on cases that address self-defense, battered women's syndrome, and the reasonableness of a detention. We are bound by the California Supreme Court's definition of the offense: "[W]e hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams, supra, 26 Cal.4th at p. 790; Wyatt, supra, 48 Cal.4th at pp. 785-786.) As given in this case, CALCRIM No. 875 was a correct statement of the law. (See, e.g., People v. Velasquez (2012) 211 Cal.App.4th 1170, 1176-1177; People v. Golde, supra, 163 Cal.App.4th at pp. 121-123.)
Justice Kennard's dissent in Williams argued the instruction that defines assault should include an element about the actor's subjective awareness. (Williams, supra, 26 Cal.4th at p. 796-797 (Kennard, J., dissenting).)
V. CALCRIM No. 3404
Defendant argues that CALCRIM No. 3404, on accident and intent for the charged offense, improperly shifted the burden of proof to the defense and failed to explain that any duty to come forward with evidence was not the equivalent of the burden of proof beyond a reasonable doubt.
A. Accident
Section 26 states: "All persons are capable of committing crimes except those belonging to the following classes: [¶] ... [¶] Five - Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." These provisions are stated within CALCRIM No. 3404. (People v. Anderson (2011) 51 Cal.4th 989, 996, 997 (Anderson).)
As given to the jury, CALCRIM No. 3404 stated:
" 'The defendant is not guilty of the charged crime if he acted without the intent required for that crime but acted instead accidentally. You may not find the defendant guilty of assault with a deadly weapon unless you are convinced beyond a reasonable doubt that he acted with the required intent.' "
Defendant did not object to CALCRIM No. 3404.
A defense claim of accident is actually a claim that the prosecution has failed to prove the intent element of the offense, and is "raised to rebut the mental element of the crime or crimes with which the defendant [is] charged." (Anderson, supra, 51 Cal.4th at pp. 997, 998.) " 'The accident defense amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.' [Citation.]" (Id. at p. 998.) In such a case, the defendant's claim of accident "would rebut the prosecution's proof of a mental element of the crime," and "negate the mental element of the crime ...." (Id. at pp. 997, 998.)
"When a defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of that fact. [Citation.] This is so because the defense goes directly to guilt or innocence. The trial court is required to instruct the jury on which party has the burden of proof and on the nature of that burden. [Citation.] The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime. [Citation.]" (People v. Gonzales (1999) 74 Cal.App.4th 382, 390, disapproved on other grounds in Anderson, supra, 51 Cal.4th at p. 998, fn. 3.)
Anderson approved of Gonzales's analysis of the doctrine of accident, except for its conclusion that the court had a sua sponte duty to instruct on accident. (Anderson, supra, 51 Cal.4th at pp. 997-998 & fn. 3.)
While a court has a sua sponte duty to instruct on defenses, that duty does not extend to accident and CALCRIM No. 3404. (Anderson, supra, 51 Cal.4th at p. 996.) " ' "[W]hen a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a 'pinpoint' instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such 'pinpoint' instructions are not required to be given sua sponte and must be given only upon request.' " [Citation.]" (Id. at pp. 996-997.)
" 'To say that it is a defense that the criminal conduct or omission was committed by a non-negligent accident, is simply to say that all result element offenses [i.e., offenses that require an intent to produce a particular result] require at least proof of negligence as to causing the prohibited result. This is already made clear by the culpability requirements of specific offense definitions ....' [Citation.] A trial court's responsibility to instruct on accident therefore generally extends no further than the obligation to provide, upon request, a pinpoint instruction relating the evidence to the mental element required for the charged crime." (Id. at p. 997, italics in original.)
B. Analysis
"When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. [Citations.]" (People v. Wilson (2008) 44 Cal.4th 758, 803-804.)
"We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. [Citation.] The absence of an essential element from one instruction may be cured by another instruction or the instructions taken as a whole. [Citation.]" (People v. Smith (2008) 168 Cal.App.4th 7, 13.)
When the court gives the standard instruction on presumption of innocence, reasonable doubt, and the prosecution's burden of proof, these are sufficient to eliminate any confusion and adequately instruct as to the burden of proof. (People v. Medina (1995) 11 Cal.4th 694, 774.)
We find that CALCRIM No. 3404 did not shift the burden of proof. As we have explained, CALCRIM No. 220 instructed the jury about reasonable doubt, that the People had the burden to prove defendant's guilt beyond a reasonable doubt, and " '[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise.' "
In closing argument, defense counsel argued that defendant did not intentionally hit Stanberry's car, the collision was an accident, and he did not hit her car willfully or with any criminal intent. Defense counsel referred to the jury to CALCRIM Nos. 225 and 250, and that the People had the burden to prove that defendant intentionally did the charged act with a particular mental state. Counsel argued that while defendant may have been tailgating, he accidentally hit Stanberry when she changed lanes, he did not have the requisite intent, and he did not commit a crime.
In this case, the jury was instructed that it was the prosecution's burden to prove, beyond a reasonable doubt, all the elements of the offense, including criminal intent. CALCRIM No. 3404 explained that accident negated the requisite intent for the offense. Based on the entirety of the instructions, it is not reasonably likely the jury would have been misled into believing that defendant had the burden to prove accident. Since the jury was told that the People had the burden to prove criminal intent beyond a reasonable doubt, the jury could not have reasonably concluded defendant was guilty if there was a reasonable doubt as to whether the incident was an accident.
VI. Defendant's Motion to Strike the Prior Prison Term Enhancements
Defendant contends the court should have granted his motion to dismiss the prior prison term enhancements because the felony offenses had been reclassified as misdemeanors under Proposition 47.
A. The Allegations
On July 14, 2015, the felony complaint was filed that alleged defendant had 10 prior prison term enhancements. On July 28, 2015, the information again alleged that defendant had ten prior prison term enhancements.
As we will explain, on September 2 and 9, 2015, the Superior Court of Los Angeles County granted defendant's petitions to reduce his 2005 and 2007 felony convictions, underlying allegation Nos. 7 and 8, to misdemeanors.
On September 29, 2015, an amended information was filed and again alleged defendant had ten prior prison term enhancements, based on the following felony convictions, all of which were from the Superior Court of Los Angeles County. Based on the evidence subsequently introduced at the sentencing hearing, defendant was sentenced to and served prison terms for these prior convictions.
1. October 30, 1986, second degree burglary (§ 460, subd. (b)), No. A538299; 32 months in prison;
2. August 19, 1988, felon in possession of a firearm (§ 12021, subd. (a)); No. A577034; 16 months in prison;
3. November 13, 1989, possession of a controlled substance (Health & Saf. Code, § 11350), No. GA000098; 16 months in prison;
4. July 26, 1993, second degree burglary; No. GA015267; two years in prison;
5. February 18, 1997, forgery (§ 470), No. MA013430-01; three years in prison;
6. March 27, 2001, second degree burglary (§ 460, subd. (b)), No. MA021715-01; two years in prison;
7. March 16, 2005, receiving stolen property (§ 496); No. MA02920101; four years in prison;
8. November 29, 2007, possession of a controlled substance (Health & Saf. Code, § 11350)); No. MA04055201; three years in prison;
9. November 23, 2009, second degree burglary (§ 460, subd. (b)), No. MA4753601; sentenced to four years in prison;
10. January 23, 2012, second degree burglary (§ 460, subd. (b)); No. ATPMA05517401.
The tenth allegation originally alleged the prior conviction occurred on October 23, 2012. The court granted the prosecution's motion to conform the allegation to proof.
B. Pretrial Motion
Also on September 29, 2015, defendant's trial began with motions. Defendant moved to strike the prior prison term enhancements pursuant to Proposition 47, and argued the law had reduced some of the felony offenses to misdemeanors.
The court disagreed with defendant's argument that Proposition 47 was retroactive, but denied the motion without prejudice for defendant to raise the issue if he was convicted.
C. Bench Trial on the Enhancements
On October 2, 2015, defendant was convicted as charged.
On the same day, defendant waived a jury trial on the enhancements. The prosecution introduced documentary evidence to prove the prior convictions.
In the course of the hearing, defense counsel renewed his pretrial arguments about Proposition 47. Counsel argued that it was reasonable to find that some of the prior felony convictions "may have been reduced to misdemeanors," and the court could not impose prior prison term enhancements for any misdemeanors.
Defense counsel reviewed the list of defendant's prior convictions from the amended information, and conceded the firearm offense was not subject to reduction under Proposition 47. However, counsel stated the second degree burglary convictions could be reduced to misdemeanors if the property stolen was less than $950 and the offenses were reclassified as shoplifting within the meaning of section 459.5. Counsel also believed the prior drug offenses would be reduced to misdemeanors unless defendant had certain disqualifying prior convictions, "which, based on the rap sheet, he does not." Counsel also believed the forgery and theft convictions could be reduced based on the value of the property. In the alternative, counsel argued the court should strike the enhancements in the interests of justice.
The prosecutor replied that none of defendant's prior convictions were "local," they originated in Los Angeles County, and the Kern County Superior Court did not have jurisdiction to reclassify the felonies to misdemeanors.
"There's a procedure in place under Proposition 47. Petitions have to be filed in the courts where these convictions occurred, and then it's up to a judge to reduce them, and we can't assume that they would be reduced necessarily. The [section] 460(b)'s, if they're of a certain value or if they didn't occur at a commercial business like, for example, a school, sometimes residentials get pled down.... We can't assume that they are going to be reduced. There is a procedure in place. It has to happen in LA, I think these priors all occurred in LA County, and I don't think there's any jurisdiction for the Court to treat them as misdemeanors until they are in fact misdemeanors ...."
The prosecutor argued the court did not have to address whether Proposition 47 was retroactive since defendant had failed to file petitions to reduce any of the prior convictions to misdemeanors.
The court found all the enhancement allegations were true.
The court denied defendant's Proposition 47 arguments, found Proposition 47 was prospective, and the enhancements would be still be applicable, "regardless of any subsequent treatment by them under Prop. 47." The court further stated: "... I don't believe that it should be a race to the courthouse, that [defendant] is put in a position that he has to run around and get these reduced so he doesn't suffer disability under them. That, to me, just doesn't make sense."
D. Postverdict Motion to Dismiss
On November 9, 2015, defendant filed a motion to dismiss the prior prison term enhancements pursuant to Proposition 47. Defendant argued that eight of the 10 prior convictions had been affected by the enactment of Proposition 47, and were now misdemeanors.
Defendant's motion asserted that at the sentencing hearing, "the defense anticipates presenting certified records from Los Angeles Superior Court cases MA029201 and MA040552, which were alleged as the seventh and eighth 667.5(b) priors in the Information in this case, respectively, organized in chronological order from oldest to newest. Those records will establish that in both cases, the defense request for reduction pursuant to ... section 1170.18(a) was granted, without opposition from the People in either case." Defendant argued that the preceding six prior conviction allegations would be rendered invalid, even though defendant had not filed separate petitions for recall or resentencing for those prior convictions.
In the alternative, defendant argued the court should strike the prior convictions in the interests of justice since they were remote and were not for serious or violent felonies. The People filed opposition.
E. Documentary Exhibits
On December 16, 2015, the court held the sentencing hearing and considered defendant's motion. Defense counsel introduced two sets of docket entries from the Superior Court of Los Angeles County as documentary exhibits.
1. Case No. MA029201 (Allegation No. 7)
The first exhibit was for the entire history of defendant's 2005 felony conviction for receiving stolen property in case No. MA029201, identified as allegation No. 7 in the amended information.
The docket entries state that on March 16, 2005, defendant accepted the prosecution's offer, pleaded no contest, and admitted a 2000 prior strike allegation. On the same day, he was sentenced to the second strike term of four years in prison.
On August 17, 2015, defendant filed a petition in that case to reduce his felony conviction for receiving stolen property to a misdemeanor pursuant to section 1170.18, subdivision (f). On September 9, 2015, the superior court granted the petition, found that defendant had completed his sentence, and reduced the felony to a misdemeanor.
2. Case No. MA040552 (Allegation No. 8)
The second exhibit was for the entire history of defendant's 2007 conviction for possession of a controlled substance in case No. MA040552, identified as allegation No. 8 in the amended information.
On November 29, 2007, defendant pleaded no contest to possession of a controlled substance and admitted prior convictions in 1989, 1997, 1998, 2001, and 2005. On December 6, 2007, the court placed defendant on probation pursuant to Proposition 36. On March 10, 2008, after numerous violations, the court terminated defendant's placement under Proposition 36. On May 28, 2008, the court denied probation and sentenced defendant to the upper term of three years in prison.
On August 24, 2015, defendant filed a petition for resentencing pursuant to Proposition 47. On September 2, 2015, the superior court granted defendant's petition, found he had completed his sentence, and reduced the felony to a misdemeanor.
F. Sentencing
After defense counsel introduced the documentary exhibits, he argued the court could not impose prior prison term enhancements for the two prior convictions in 2005 and 2007 that had been reduced to misdemeanors since they were no longer felonies.
In addition, counsel argued the court could not impose enhancements based on any convictions that occurred prior to the 2005 and 2007 convictions based on the "washout" provision of section 667.5, subdivision (b). Counsel asked the court to strike the remaining enhancements in the interests of justice.
The court denied defendant's motion based on Proposition 47, and again stated that the reduction of felonies to misdemeanors was not retroactive, and defendant was still subject to the prior prison term enhancements. The court acknowledged the issue was pending before the California Supreme Court.
The court sentenced defendant to the midterm of three years for assault with a deadly weapon.
As for the enhancements, the court again denied defendant's motion to treat any of his prior felony convictions as misdemeanors. However, the court decided to stay allegation Nos. 1, 2, and 3 (based on the 1986, 1988, and 1989 convictions) in the interest of justice. The court imposed seven one-year terms for allegation Nos. 4 through 10, for an aggregate term of 10 years.
G. The Reduction of Defendant's 2005 and 2007 Prior Convictions
"Proposition 47 was enacted by voters on November 4, 2014, and went into effect the next day. [Citations.] It reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by a defendant who was ineligible because he or she had a prior conviction for a 'super strike' offense specified in section 667, subdivision (e)(2)(C)(iv) or an offense requiring sex offender registration pursuant to section 290, subdivision (c). [Citations.] Insofar as is pertinent here, it also provided a mechanism by which a person who completed his or her sentence for a conviction of a felony that was made a misdemeanor by the Act, could apply to the trial court that entered the judgment of conviction and have the felony offense designated as a misdemeanor. [Citations.]" (People v. Call (2017) 9 Cal.App.5th 856, 859-860 (Call).)
In this case, all 10 of defendant's prior convictions were from Los Angeles County. Prior to the start of trial in this case, defendant filed the appropriate petitions in the Superior Court of Los Angeles County to reduce his 2005 and 2007 felony convictions to misdemeanors, and that court granted those petitions. "The reduction, in effect, removes an element of a section 667.5, subdivision (b) enhancement, the element of having been 'convicted of a felony.' [Citation.] ... Because the underlying convictions were reduced prior to sentencing on defendant's current offenses ... the requisite prior felony conviction no longer existed at the time of sentencing, and so imposition of the enhancements was error." (Call, supra, 9 Cal.App.5th at p. 862, fn. omitted.)
As in Call, "[t]he present case does not involve retroactive application, but rather prospective application. In our view, contrary to the situation that exists when a felony conviction underlying a prior prison term enhancement is reduced to a misdemeanor after the enhancement is imposed, imposing said enhancement after the underlying conviction is reduced would not comport with - and would be directly contrary to - the voters' intent in enacting Proposition 47. [Citations.] This is so even when the underlying felony convictions had not yet been reduced at the time the current offenses were committed." (Call, supra, 9 Cal.App.5th at p. 863, fn. omitted.)
Thus, the superior court improperly denied defendant's motion to strike allegation Nos. 7 and 8 since the 2005 and 2007 felony offenses had been reduced to misdemeanors before the sentencing hearing.
H. Defendant's failure to file the appropriate petitions for the other prior convictions
Defendant asserts that, aside from his prior conviction for being a felon in possession of a firearm, his other felony offenses should also be reduced because they now classify as misdemeanors under the definitions contained within Proposition 47.
At the sentencing hearing, defense counsel similarly stated that defendant's convictions for second degree burglary, possession of narcotics, and forgery could have been subject to reduction if other statutory requirements were satisfied. However, there is no evidence that defendant followed the requisite statutory procedures for the other allegations as he did for the 2005 and 2007 offenses.
Proposition 47 was codified as section 1170.18. Subdivision (f) of that section states: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
All of defendant's prior convictions occurred in Los Angeles County. The Kern County Superior Court did not have statutory authority to address whether any of these felony offenses could have been reduced to misdemeanors, and there is no evidence defendant filed the appropriate petitions in Los Angeles County for the other prior convictions to satisfy the evidentiary requirements to reduce certain felonies to misdemeanors. (See, e.g., People v. Sweeney (2016) 4 Cal.App.5th 295, 299-300.)
"Under Proposition 47, the petitioner has the burden to show that he or she is eligible for resentencing. With respect to a theft-related offense, this includes showing that the value of the relevant property was $950 or less. [Citations.] Simply alleging that the petitioner 'believes' the property was worth $950 or less is not enough, even if the petition is under penalty of perjury.... Rather, the petitioner must 'indicate ... the factual basis of his claim regarding the value of the stolen property.' [Citation.]" (People v. Sweeney, supra, 4 Cal.App.5th at p. 302.)
I. Section 667.5's "Washout" Provision
Defendant renews the argument he made before the sentencing court, that once his 2005 and 2007 prior convictions were reduced to misdemeanors, the "washout" provision of section 667.5 were triggered so that his other prior prison term enhancements were invalid.
Defendant's argument is based on the "washout" provision of section 667.5, subdivision (b) for prior prison term enhancements. "The sentence enhancement requires proof that the defendant ' "(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." ' [Citations.]" (People v. Abdallah (2016) 246 Cal.App.4th 736, 742, fn. omitted (Abdallah).)
"Courts sometimes refer to the fourth requirement, which exempts from the enhancement defendants who have not reoffended for five years, as ' " 'washing out.' " ' [Citations.] ' "The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." ' [Citations.] 'According to the "washout" rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply.' [Citations.] 'Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the "washout" rule to apply.' [Citation.]" (Abdallah, supra, 246 Cal.App.4th at pp. 742-743, italics in original.)
Since a prison prior enhancement does not apply if the defendant remains free from prison custody and the commission of any new felony during any five-year period following the end of the prison term (§ 667.5, subd. (b); People v. Fielder (2004) 114 Cal.App.4th 1221, 1229), reclassifying a felony to a misdemeanor pursuant to Proposition 47 may prevent applying the enactment to earlier convictions under this "washout" rule. (Abdallah, supra, 246 Cal.App.4th at pp. 739-740.)
1. Acker and Abdallah
Defendant relies on In re Acker (1984) 158 Cal.App.3d 888 (Acker) to support his argument that his other prior convictions were "washed out" after the 2005 and 2007 offenses were reclassified as misdemeanors. In Acker, the defendant was sentenced to prison, but before completing the sentence it was recalled under section 1170, subdivision (d). (Acker, supra, at pp. 889-890.) When he was convicted later of a new offense, the prosecution alleged a prison prior under section 667.5. (Id. at p. 890.) Acker held the prison prior was not proper because the defendant never completed his term, and a completed term was required to prove the enhancement. (Id. at p. 891; see § 667.5, subd. (g) [defining "prior separate prison term" as "a continuous completed period of prison incarceration imposed for the particular offense"].)
Acker simply considered the terms of the enhancement and found they had not been proved. (Acker, supra, 158 Cal.App.3d at pp. 891-892.) This case is different from Acker since the evidence shows defendant completed the prison terms for the 2005 and 2007 convictions before they were reclassified as misdemeanors.
In Abdallah, the defendant was charged with several felony offenses; the information further alleged that "prior to committing these offenses, [defendant] had been convicted of felonies in 1997, 2002, and 2011, and had served time in prison for each felony." (Abdallah, supra, 246 Cal.App.4th at p. 740.) However, the defendant had been placed on parole for the 2011 conviction and did not serve time in prison. (Ibid.)
Abdallah explained that prior to being sentenced for his current offenses, the trial court reduced the defendant's 2011 conviction to a misdemeanor under Proposition 47, and "struck the allegation in the information that [defendant] had served time in prison for his 2011 conviction ... because he had not served any time in prison for that conviction." The defendant then admitted the remaining allegations. (Abdallah, supra, 246 Cal.App.4th at pp. 740-741, fn. omitted.) The sentencing court imposed a second strike term based on the 1997 prior strike conviction, and added one section 667.5, subdivision (b) enhancement "for the prior prison term [defendant] served as a result of his 2002 conviction." (Abdallah, at p. 741.) "The court imposed this enhancement because [defendant] had been released on parole on February 18, 2005, from a conviction he had suffered in 2002, and then had been arrested less than five years later in October 2009 for a new felony, for which [defendant] was convicted in 2011." (Id. at p. 740.)
On appeal, the defendant in Abdallah argued the enhancement based on the 2002 conviction was invalid because of the "washout" rule. "[T]he parties do not dispute the facts that [defendant] was previously convicted of this [2002] felony, was imprisoned as a result of the conviction, and completed his term of imprisonment. [Defendant] argues only that the fourth requirement of section 667.5, subdivision (b), is not satisfied because he did not commit an offense resulting in a felony conviction or serve a prison or jail term within five years of his release on parole for the 2002 felony conviction." (Abdallah, supra, 246 Cal.App.4th at p. 743, italics added.)
"The trial court recalled and resentenced [defendant] for his 2011 conviction ... before sentencing him in this case. The question is whether, at the time the court sentenced [defendant] in the present case, [his] original felony conviction in the 2011 case satisfied the fourth requirement of section 667.5, subdivision (b), or whether, once the court resentenced [him] on his 2011 conviction, he no longer had committed an offense that 'result[ed] in a felony conviction' within five years of release on parole or discharge from custody for a prior felony conviction (in this case, the 2002 conviction)." (Id. at pp. 744-745.)
Abdallah held the court improperly imposed the enhancement for the 2002 felony. Once the 2011 felony was reduced to a misdemeanor, defendant no longer qualified for the prior prison term enhancement for the 2002 conviction under section 667.5's "washout" provision, because the 2011 conviction was no longer a felony and defendant never served any time in prison for that 2011 conviction since he had been placed on probation. (Abdallah, supra, 246 Cal.App.4th at pp. 740-741.)
"Section 667.5, subdivision (b), excludes from the prior prison term enhancement a defendant who has neither committed 'an offense which results in a felony conviction' nor been subject to [a prison term] within five years of release on parole or official discharge from another felony conviction resulting in the defendant's incarceration. Once the trial court recalled [the defendant's] 2011 felony sentence and resentenced him to a misdemeanor, section 1170.18, subdivision (k), reclassified that conviction as a misdemeanor 'for all purposes.' [Citation.] Therefore, at the time of sentencing in this case, [the defendant] was not a person who had committed 'an offense which result[ed] in a felony conviction' within five years after his release on parole for his prior conviction. [Citations.] Thus, the trial court erred by imposing the one-year sentence enhancement under section 667.5, subdivision (b)." (Id. at p. 746.)
We have already explained that at the time of the sentencing hearing in this case, defendant's 2005 and 2007 prior convictions had been reduced to misdemeanors by the Superior Court of Los Angeles County. In contrast to Abdallah, however, defendant was sentenced to prison for all of his prior convictions, including the 2005 and 2007 offenses that were reduced to misdemeanors. Thus, the distinctive fact in Abdallah, where the defendant never served time in prison for the offense reduced to a misdemeanor, is not present in this case to trigger any "washout" provisions.
J. Conclusion
While the court improperly rejected defendant's arguments as to allegation Nos. 7 and 8, it decided to strike the first three enhancements in the interests of justice. However, it imposed seven one-year terms for the remaining enhancements, including Nos. 7 and 8. It could not impose terms for allegation Nos. 7 and 8 since the underlying felony convictions had been reduced to misdemeanors prior to the sentencing hearing.
The court did not have statutory authority to reduce any other felony convictions since those occurred in the Superior Court of Los Angeles County. In addition, the court's reduction of the 2005 and 2007 convictions, did not trigger the "washout" provisions of section 667.5. Contrary to Abdallah, defendant served prison terms for those two convictions, and the other offenses alleged as prior prison term enhancements.
We remand the matter for resentencing and correction of the abstract of judgment.
DISPOSITION
The sentence is vacated and the matter remanded for the court to resentence defendant only on the prior prison term enhancements, as explained in this opinion. In all other respects the judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.