Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 2064268)
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge. Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
In a first amended information filed March 7, 2017, defendant Darius Volaire Dollar was charged with two counts of first degree robbery (counts I-II; Pen. Code, § 212.5, subd. (a)), while armed with a firearm (§ 12022, subd. (a)(1)), and on bail (§ 12022.1); burglary (count III; § 459) with a victim present (§§ 667.5, subd. (c)(21) & 2933.1) and while armed with a firearm (§ 12022, subd. (a)(1)) and on bail (§ 12022.1). The information also alleged a prior strike (§ 667, subd. (d)), a prior serious felony (§ 667, subd. (a)), and two prior prison terms. (§ 667.5, subd. (b).)
All subsequent statutory references are to the Penal Code unless otherwise noted.
These enhancements were alleged to each of the first degree robbery counts.
The information also alleged a fourth count, but it was later dismissed by the prosecutor.
A jury convicted defendant on counts I and II but deadlocked on count III. The jury found not true the allegations that defendant was armed with a firearm. In a bifurcated proceeding, the court found true the prior strike, prior serious felony, both prior prison term, and the "on bail" enhancements.
The court declared a mistrial as to count III.
Defendant requested that the court strike the enhancement for his prior strike conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court denied the request.
The court sentenced defendant to a total term of 18 years eight months in prison, comprised of the following: four years on count I, doubled to eight years for the prior strike conviction; plus one year four months on count II, doubled to two years eight months for the prior strike conviction; plus a consecutive five years for the section 667, subdivision (a) enhancement; plus two years for the out-on-bail enhancement (§ 12022.1); plus one year for one of the prior prison term enhancements.
The court described the total as 20 years eight months, but the terms actually totaled 18 years eight months.
The court struck the other prior prison term enhancement.
On August 24, 2015, Asia Thompson was living with her uncle, Adelo Rucker in Modesto. Thompson was woken by banging at her front door around 4:00 a.m. When she opened the door, Thompson saw defendant standing alone. Thompson recognized him because he lived with friends of her family. Defendant had come to her house with a family friend about one week prior.
Defendant told Thompson he was stranded and needed to use her phone. Thompson let him in, and defendant used the phone.
Later, there was another knock at the door. Rucker let the man in the house. The man pulled a gun out of his jacket, looked at defendant and said, " 'What do you want to do?' " Defendant replied, " 'Just go through the place,' " (or something like that). Defendant then went into Thompson's room and began "going through" her "stuff." Defendant emerged with Thompson's safe and told her to open it. Thompson replied, " 'I don't know where the keys are.' " "They" told Thompson to open the safe or they would shoot her. As Thompson went to retrieve the key, she saw her wallet on the ground with its contents emptied. The wallet had contained $400 in cash and a money order for $950 for her rent.
Thompson opened the safe and nothing was inside. Then, defendant and the other man began "tearing" her "house up." Thompson initially testified she thought defendant flipped over couches in the residence and "ripped them on the bottom." She later testified that she went to look for the keys to her safe in her bedroom and when she came back to the living room, the couches were "already tipped over."
At one point, the other man began touching Thompson "in a sexually impermissible way." Thompson told defendant, " 'Come get your friend. What's going on?' " Defendant told the other man, " 'We didn't come for that.' " Eventually the other man left Thompson alone.
Thompson paid $1,500 for a set of two Michael Kors watches. Only one of the watches was stolen.
Thompson approximated the value of all the stolen items to be $2,500.
Thompson began to "tussle" with defendant, trying to get her car keys. The other man said, " 'We have to tie them up.' " Then, "they" put a belt around Thompson's hands. The men then put Thompson and Rucker in the bathroom.
Defendant left out of the front door, then the other man exited a back door. They had left the three checks behind. Thompson ran out after them and saw a champagne colored Trail Blazer, noted its license plate, and saw a girl in its driver's seat. Thompson called 911 and reported the license plate number.
During the 911 call, the dispatcher asked Thompson if she recognized either of the two men and she replied, "No. Not too sure." At trial, Thompson explained that defendant had "looked familiar," but she was not sure it was him because he had longer hair than she remembered. Thompson also noted that defendant has brothers who look similar to him. Thompson did not want to identify defendant positively in "the heat of the moment." However, she now had no doubt defendant was the man involved in the burglary.
About 30 minutes after the men left, police arrived and interviewed Thompson. Thompson told them she did not know defendant's name.
Thompson was asked, "The people who ransacked your house, they weren't wearing any gloves; is that correct?" Thompson responded, "No."
Rucker's testimony was largely consistent with Thompson's. Rucker identified defendant in court. Rucker also said that during the incident, defendant kept saying, " 'Where's the money? Where's the money?' " Defendant and the other man never found $7,500 in cash Rucker had stored in pill bottles.
A police sergeant testified that Rucker claimed a breathing machine and cash had been taken. However, a photograph of Rucker's room on the day of the burglary showed a CPAP breathing machine near his bed. The police sergeant also testified that perpetrators of home invasion robberies who search a couch are usually looking for drugs.
A security camera that "viewed the parking lot of the apartment complex ... did not show any person in the parking lot during the early morning hours of August 24, 2015, except for [Adelo] Rucker...." However, the security camera "recorded 18 seconds every five minutes."
Thompson claimed that after the incident, defendant had somebody call from jail to threaten her. Thompson also received two other calls from people at the jail. However, Thompson also recalled that someone from the district attorney's office told her there had only been two calls to her from jail. Thompson insisted there must have been a third call (i.e., the call where she was threatened.)
I. Defendant Has Not Shown a Reasonable Probability of a More Favorable Result Had Evidence of Thompson's 2012 Conviction for Theft Been Admitted
1. Exclusion of the Evidence that Thompson had been Convicted of Theft in 2012
Midtrial, outside the presence of the jury, the defense sought to impeach Thompson by introducing evidence she suffered a conviction for misdemeanor petty theft in 2012. The prosecution opposed the request, arguing the conviction was "remote in time." The prosecutor then volunteered that, according to Thompson's "rap," she was arrested or cited for a "misdemeanor DUI" in 2016. The prosecutor continued, "I believe there may have been a 12500, a driving without a license. There was no conviction on the rap, but, regardless, it's too remote in time." The prosecutor then added that the evidence should be excluded under Evidence Code section 352 because it would lead to confusion of the issues. The following exchange then occurred:
"THE COURT: Based on the fact that in the 2012 conviction there's also a misdemeanor 484, I will deny that request.II. Jury Deliberations
"[Defense counsel:] Your Honor, just for the record, my request of including that was that it is a crime of moral turpitude and misdemeanor crimes of moral turpitude can be used to impeach."
"THE COURT: They can be. Sure."
During deliberations, the jury asked a question about whether Thompson or Rucker identified defendant from a lineup. The court informed the jury that there was no evidence presented regarding a photographic or physical lineup.
The jurors also asked for a readback of trial testimony, including the portions of Thompson's and Rucker's testimony identifying defendant in the courtroom.
Minute orders reflect that the jury deliberated from 2:18 p.m. to 4:10 p.m. on September 25, 2017; 10:00 a.m. to 4:00 p.m. on September 26; and 10:00 a.m. to 11:58 a.m. on September 28. Any breaks the jury took are not reflected in these minute orders.
Additionally, defendant says the jurors "deliberated over the course of three days." However, as he later notes, the minute orders make clear the jury deliberated for far less than three full days.
The jury ultimately deadlocked on count 3 (burglary), with seven jurors voting not guilty and five voting guilty.
On appeal, defendant argues the court prejudicially erred in excluding the evidence of Thompson's 2012 theft conviction.
A. Law and Analysis
Misdemeanor convictions can be used to impeach witnesses. (People v. Chavez (2000) 84 Cal.App.4th 25, 28, citing People v. Wheeler (1992) 4 Cal.4th 284.) However, the trial court retains discretion under Evidence Code section 352 to exclude evidence of a prior misdemeanor conviction if it would "create undue prejudice, delay, or confusion, substantially outweighing [its] probative value. [Citation.]" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 178.) In this analysis, "the prominent factors in determining the probative value of the prior conviction include 'whether the conviction (1) reflects on honesty and (2) is near in time.' [Citations.]" (People v. Brooks (2017) 3 Cal.5th 1, 52.)
Even if the court erroneously excludes impeachment evidence concerning a prior conviction, reversal is only warranted if there is a reasonable probability that a more favorable result would have occurred had the prior conviction evidence been admitted. (People v. Brooks, supra, 3 Cal.5th at p. 52.) If no prejudice is established under this standard, we "need not determine whether the court abused its discretion ...." (Ibid.)
Here, we conclude there is no reasonable probability the admission of evidence that Thompson had a 2012 conviction for theft would have yielded a more favorable result for defendant. Therefore, we "need not determine" whether the court erred in excluding the evidence. (People v. Brooks, supra, 3 Cal.5th at p. 52.)
Defendant insists that the credibility of Thompson's eyewitness identification was at the heart of this case. However, Thompson's identification of defendant was corroborated by another eyewitness, Adelo Rucker.
Defendant also argues that evidence of the prior theft conviction would have "produced a significantly different impression" of Thompson's credibility. But the evidence of the theft conviction is not so damaging that a jury would have likely discounted her testimony. While an approximately five-year-old theft conviction had some relevance to Thompson's present credibility and tendency to deceive, it is not as probative as a more recent conviction for an expressly deceptive offense like perjury. Finally, we again point to Rucker's corroboration, which would have very likely assuaged any potential concerns about Thompson's credibility raised by the theft conviction.
Defendant also points to the jury's behavior to establish prejudice. He notes the jurors engaged in lengthy deliberations, inquired about whether a lineup was used, asked for a readback of Thompson's and Rucker's in-court identifications, and deadlocked in favor of acquittal on the burglary count, and found defendant was not armed with a firearm.
However, none of these considerations overcome the fact that the jury ultimately made findings largely consistent with Thompson's version of events. The not true finding on the gun enhancement does not suggest the contrary. As defendant noted in his sentencing statement, Thompson testified that the "Second Guy" had the gun and did not testify that defendant was armed. Consequently, the fact that the jury found defendant was not armed with a firearm does not reflect skepticism of Thompson's testimony. Similarly, the fact that during deliberations the jury had the in-court identifications read back, and then convicted on both robbery counts, suggests the jury was appropriately focused on Thompson's testimony and ultimately found it credible. III. We Remand the Matter for Resentencing
The Attorney General concedes that defendant's prior prison term enhancement should be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.; SB 136), and that the matter should be remanded for the court to consider its discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.; SB 1393). We accept these concessions. (See People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 [under SB 136, prior prison term enhancements only apply if defendant served a prior prison term for a sexually violent offense as defined in Welf. & Inst. Code, § 6600, subd. (b)]; People v. Zamora (2019) 35 Cal.App.5th 200, 208 [remanding case for trial court to exercise new discretion under SB 1393].)
In his opening brief, defendant initially challenged the length of his sentence on several other grounds. In supplemental briefing concerning SB 1393, defendant now requests that we vacate his sentence. Because we are indeed vacating defendant's sentence, his challenges to the now-vacated sentence are moot.
The Attorney General similarly requests that the matter be remanded and defendant fully resentenced. --------
Defendant's prior prison term enhancement is stricken. Defendant's sentence is vacated. The matter is remanded for resentencing, during which the court shall consider its discretion under SB 1393. In all other respects, the judgment is affirmed.
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________