Opinion
H043880
05-01-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDRE TYRONE JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151293A)
I. INTRODUCTION
Defendant Andre Tyrone Johnson was convicted by jury in Monterey County Superior Court of first degree murder (Pen. Code, § 187) and first degree burglary (§ 459). The jury also found true that he personally and intentionally discharged a firearm causing the death of Solomon Sandoval Perez within the meaning of section 12022.53, subdivision (d). The trial court sentenced defendant to 50 years to life consecutive to six years, and imposed a consecutive term of four years eight months for an uncompleted sentence that had been imposed in an earlier Santa Clara County case (People v. Johnson (Super. Ct. Santa Clara County, 2015, No. C1472888)), including a one-year term for a weapon enhancement (§ 12022, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
The record on appeal contains documents also spelling the victim's first name as "Salomon."
On appeal, defendant contends that the trial court erred by admitting testimony of a witness's prior inconsistent statement regarding defendant's involvement in a prior armed robbery. Second, in response to this court's request for supplemental briefing, defendant contends that the case should be remanded so that the trial court may consider exercising its discretion, pursuant to a recent amendment to section 12022.53, to strike the enhancement alleged under that section. Third, defendant contends that the case should be remanded so that he can "supplement his file" with information relevant to a future youth offender parole hearing. Fourth, defendant contends that the trial court, in resentencing him in the Santa Clara County case, erroneously imposed a full one-year term for a section 12022, subdivision (b) weapon enhancement.
Although we find defendant's claim of evidentiary error harmless, we will reverse the judgment and remand the matter for the trial court: (1) to determine whether defendant had an adequate opportunity to make an accurate record of his circumstances and characteristics, in anticipation of a future youth offender parole hearing, (2) to consider exercising the court's discretion to strike the section 12022.53, subdivision (d) enhancement, and (3) in the Santa Clara County case, to impose an enhancement term of four months for the section 12022, subdivision (b) weapon enhancement on a count for second degree robbery.
Appellate counsel for defendant has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. We have disposed of the habeas petition by separate order filed this day.
II. FACTUAL AND PROCEDURAL BACKGROUND
The victim was found dead from a gunshot wound in a motel room. The prosecution presented fingerprint, cell phone, and other evidence linking defendant to the shooting. There was no evidence that defendant knew the victim prior to the shooting.
A. The Homicide
On Tuesday, January 7, 2014, the police were dispatched to a motel in Seaside on a report that a guest had refused to check out. Upon entering the motel room, the police found the victim, Perez, dead on the floor. He had a gunshot wound to the chest. An autopsy report later revealed that the victim had been shot with a handgun, and that he died within minutes. There was no indication of a struggle in the room. The police believed the victim had been seated on the bed, that blood from the gunshot wound pooled to his waist area, and that he then fell onto the floor and had not been moved in any way.
The victim's wallet was on a bedside table. The wallet contained identification, a receipt for a cell phone bill, credit cards, and cash. The cash was hidden in a compartment behind the credit cards. The police also found a cell phone charger but not a cell phone. Alcohol, cigarette butts, and a glass pipe commonly used for smoking methamphetamine were also found in the room.
B. The Victim's Earlier Activities and Surveillance Video from the Area
Investigators did not find any connection between defendant and the victim or the victim's friends. The victim lived with his sister at her residence. The sister testified that the victim, her brother, paid all her rent and helped watch her daughter. The victim smoked cigarettes. According to the sister, every week the victim worked at a restaurant for several consecutive days until Sunday. He would then go with his friends and not return until early Tuesday to take her daughter to school and to go to work again. The sister testified that her brother never expressed that he was in danger or that people were angry at him. She had never heard of defendant before her brother died.
The victim had checked into the motel on January 5, 2014.
On January 6, 2014, about 6:49 p.m. on the night leading into the morning the victim was killed, the victim was recorded on a surveillance video of a liquor store, which was two buildings away from the motel, purchasing a bottle of brandy and a lighter by himself. The police later found the partially empty bottle in the victim's room.
On January 7, 2014, about 1:47 a.m. on the morning the victim was killed, video surveillance and other information from a 7-Eleven about a quarter mile away reflected the victim by himself purchasing a bottle of wine. Five minutes later, a person with a bag, who the police believe was the victim, was recorded on surveillance video walking alone by a gas station and towards the motel, which was a half block away. The police later found the wine bottle in the victim's room.
The motel where the victim was killed did not have an exterior camera. The row of shops across the street from the motel also did not have external video surveillance. A person could approach the motel without being captured on video surveillance.
C. Fingerprint Evidence
Defendant's fingerprint was found in the victim's motel room on a Brisk strawberry melon drink bottle. The same bottle also had the victim's fingerprint on it. Two other items in the room, a Coca-Cola can in the garbage can and a plastic cup, had the fingerprints of Kevin Russo. There were also two fingerprints in the motel room from one or two other people who had not been identified by law enforcement.
Russo testified that he met the victim through a moving job and had known him for about four months. According to Russo, the victim was not a violent person. In January 2014, Russo hung out with the victim at the motel for about six hours during the night and into the early morning. Russo testified that the victim did not express any fear or concern that someone was out to get him or that he was in trouble. Russo testified that he and the victim were drinking at the motel, but Russo denied using methamphetamine. He testified that when he left, the victim was alive and awake. Russo testified that he did not know the victim had been killed until investigators told him in June 2015, while he was in jail.
Russo had been convicted of misdemeanor theft in 1989 and 1995; he had three auto theft convictions; and he had "some narcotics offenses, possession of meth and possession of marijuana for sale in" 1997, 2000, and 2007. Russo testified that there were no weapons or violence in any of his convictions, and that he had never been involved in any sort of violent assault.
D. Cell Phone Evidence
Based on a receipt for a cell phone bill that was found in the motel room, the police obtained the victim's cell phone account information. Through search warrants, the police also obtained information about communications to and from the phone, the location of the phone, and e-mail accounts registered to the phone.
The cell phone information revealed that the victim had made a cell phone call to a male friend, J.T., at 4:29 a.m. on January 7. J.T. testified that the victim had called and invited him to the motel room. J.T. was at a different motel and invited the victim over as well. The two had known each other for several years and had previously gotten together at motels in Monterey and Seaside. The two decided to stay where they were in separate motels. J.T. testified that the victim seemed to have been drinking a little but the call was otherwise a normal conversation. J.T. testified that the victim was one of the nicest people he had ever met. J.T. never knew the victim to be a violent or angry person, and he never knew the victim to have any enemies or people who were out to get him. J.T. did not know defendant.
The police determined that the last cell phone call that the victim made was at 4:49 a.m. on January 7, 2014.
The victim's cell phone was used at 6:04 a.m. to call MetroPCS customer service. The police determined that defendant had made this call and had switched the phone over so that it was associated with his own contact information. Two e-mail addresses, which included defendant's name or a part of his name, were also linked to the victim's phone. Based on information obtained from the cell phone company, the police located the phone at or near a Salinas address where defendant's mother lived.
E. Defendant's Arrest and His First Police Interview
Defendant was arrested near his mother's Salinas residence on Thursday, January 9, 2014, two days after the victim was killed. Defendant had the victim's cell phone in his possession. He was interviewed by the police on the day of his arrest and approximately 18 months later.
In the interview on the day of his arrest, defendant gave the police a timeline of his activities in the preceding days. He initially told the police that he was with his sister in Palo Alto on Monday night and Tuesday morning, and that he found the phone on Wednesday night at a park in Seaside. He stated that the phone was uncharged and off, and that he had plugged the phone into the exterior of an apartment building. The police later determined that there were no exterior outlets at that apartment building.
Defendant acknowledged that he had changed the phone from someone else's to his own, and that he had downloaded his contacts onto the phone to make it his own. He did not describe being in or near the motel where the victim had been found. He indicated multiple times that he had not been in that area.
The police questioned defendant about his claim of finding the phone Wednesday night and told him that there were calls on the phone to his mother on Tuesday morning. Defendant claimed to be confused. He stated that he found the phone Tuesday morning when it was still dark, and that he did not remember the call to his mother. He also changed his description of some of the things he did and where he went. Other than defendant being at his mother's residence on a night after the victim was killed, the police were not able to confirm any of defendant's narrative as to where he was and who he was with.
Defendant did not work and he told the police that he primarily received money from his mother.
F. The Police Interview of Defendant's Mother and Sister
Defendant and his adult sister sometimes stayed at their mother's house. Defendant's mother and sister were interviewed by the police on January 9, 2014, the day of defendant's arrest. Defendant's mother told the police that defendant had not stayed at her house on the night of Monday, January 6, 2014.
Defendant's sister testified that she saw defendant the day before she was interviewed by the police. She told the police that she had not seen him for at least a week prior to that, which included the time of the victim's killing. When asked how defendant paid for things, she testified that she or her mother gave defendant money. She indicated that defendant did not use any "hard drugs" or anything besides marijuana.
Seaside Police Detective Gabriel Anderson, who participated in defendant's arrest and conducted the first interview of defendant, testified that he did not discuss with defendant, his mother, or his sister the details of the homicide, including that the victim had been shot. The police also did not issue a press release about the crime.
G. The Residence Search
The Salinas residence where defendant stayed with his mother was searched pursuant to a warrant. The police found two plastic key cards from the same motel where the victim was killed.
H. Defendant's Second Police Interview
Defendant was interviewed a second time by the police on July 2, 2015, about 18 months after the victim was killed. Defendant's second interview was conducted by Monterey Police Detective Bryan Kruse. Detective Kruse was part of the Peninsula Regional Violence and Narcotics Team, which continued the investigation that was initiated by the Seaside Police Department.
During this second interview, defendant stated that he had found the cell phone at issue, and that he had called MetroPCS about 20 to 35 minutes later to switch the number. When asked for an explanation about his fingerprint being in the victim's motel room, defendant did not give any explanation. He denied being at the motel or anywhere in the area. Defendant did not admit to using any drugs beyond marijuana.
Defendant was shown a photograph of the victim and said he did not know him. Defendant referred to the victim as a "pisa." Detective Kruse testified that he had heard that term in criminal investigations, and that it was typically used on the street to refer to a "very short stature Hispanic person, typically from Mexico." The detective thought it was unusual for defendant to be using the term because the photograph that was shown to defendant only displayed the victim's head and shoulders.
Detective Kruse testified that during this interview, the police did not provide defendant with information about how the victim was killed or discuss weapons with respect to the victim's homicide. Further, the photograph defendant was shown of the victim's head and the top of the victim's shoulders did not show any injuries, other than a spot of blood on the victim's forehead.
However, defendant raised the subject of the victim being shot with a gun. Audio recordings of portions of defendant's interview were played for the jury, and the jury received a transcript of the recordings. During the second interview with the police, defendant stated, "The dude told me like this, 'Well, you know he was shot and killed.' Whoo . . . whoo . . . whoo. 'Like what'd you mean he was shot and killed?' He's like, 'Well . . . well I'm not . . . (inaudible) . . .' Okay, if he . . . Like I told him, 'Well, if he's shot and killed then where's the gun at?' " Detective Kruse was not aware of any law enforcement officer during the investigation providing information to defendant that the victim had been shot. The detective also did not recall the information being publicly available.
The police confronted defendant with the fingerprint evidence, but he continued to deny being at the motel and he denied killing the victim. Defendant also raised the issue of the police not being able to link a gun to him. For example, in his audiotaped interview, defendant stated, "I didn't shoot this guy . . . I didn't kill this guy. You could put me there with the whatever, you feel me? But where does it show that I shot 'im though?" He also asked the police, "Do you have forensic evidence of me touchin' his body or something'[?]"
Text messages from defendant's own phone reflect that he was communicating with a prostitute and trying to meet her in the early morning of January 7, 2014, prior to the time the victim was killed. According to the text messages, the prostitute was at a motel (but not the same motel where the victim was killed). Defendant told the police that he went to the motel to meet and rob her. In defendant's audiotaped interview, he told the police that he was "bored," had "nothin' to do," and had "called everybody else" but did not know where everyone was. He decided to call a prostitute and was going to rob her because she would have money on her. Defendant denied to the police that he had a gun or knife with him that night. He told the police that he was going to "[b]eat her to a pulp" in order to rob her. He went to the motel but did not get a room. He did not see the prostitute and determined "she was playin' around." When defendant said he was going to beat the prostitute to a pulp, he made several punching motions towards the floor with both of his hands. The police pointed out to defendant that he had admitted to planning to rob a prostitute, and that at a nearby motel the victim was killed and his phone was stolen. In response, defendant claimed the robbery of the prostitute was only a plan, "it depended on how [he] was feelin,' " and he "had a feeling of it, but [he] didn't."
The text messages between defendant and the prostitute on defendant's own phone on the morning of January 7, 2014, ended about 4:54 a.m., which was shortly after the victim's last outgoing cell phone call at 4:49 a.m. Defendant's last text message to the prostitute at 4:53 a.m. stated that he just "wanted to have a nice time" with her. Her last text to him at 4:54 a.m., rejecting him, stated in part, "NO sorry." It is about two miles between the motel where defendant tried to meet with the prostitute and the motel where the victim was killed.
I. Defendant's Prior Robbery
O.T. testified that in November 2013, around Thanksgiving, she and a friend were walking in San Jose when two males stopped them at gunpoint and asked for their belongings. O.T. and her friend gave up their cell phones because that was all they had. The assailants asked O.T. for the pass code to get into her phone. One of the assailants asked the other assailant whether he should shoot one or both victims. The other assailant responded, "No. We got their stuff. Let's go." The incident lasted a couple of minutes.
In mid-December 2013, O.T. was shown a series of photographs by the police, and she identified one of the assailants who had robbed her. When O.T. testified in that case on July 11, 2014, she was not able to recognize in the courtroom the assailant who she had previously identified.
By the time of defendant's murder trial in April 2016, O.T. also did not remember what the assailants looked like and could not identify defendant in the courtroom as being one of them. When she was shown the photograph of the person that she had previously identified as one of the assailants, the record reflects that she indicated that the person in the photograph was defendant. She was "pretty sure" about this assailant, but she "wasn't sure" about the second assailant. The photograph lineup was admitted into evidence.
O.T. testified that she did not remember whether the person in the photograph was the one who had referred to shooting them, or was the one who had said not to shoot them. O.T. also did not remember the exact words used by the assailant. After a report was shown to her to refresh her recollection, O.T. testified that one of the assailants who had a gun said to the other assailant, "Should we shoot this nigger?" The other assailant calmed the first one down and said, "We got their stuff. Let's go."
Although O.T. initially testified that each assailant had a gun, she later testified that she did not remember whether there were two guns or only one gun. She only remembered that one assailant had a green bike and the other had a darker bike.
O.T. also initially testified that she told San Jose Police Detective Ryan Chan that she saw a handgun where bullets are put in from the bottom. She subsequently testified that she told the detective that one or the other of the guns was a revolver, which has bullets rotating around.
San Jose Police Officer Ryan Chan testified that he interviewed O.T. about being a victim of an armed robbery. Officer Chan testified that O.T. identified the person in the photograph lineup as the assailant who was armed with a firearm and who had asked the other assailant whether he should shoot one of the victims.
J. The Verdicts and Sentencing
On May 4, 2016, the jury found defendant guilty of first degree murder (§ 187) and first degree burglary (§ 459). The jury further found that defendant personally and intentionally discharged a firearm causing Perez's death in the commission of the offenses (§ 12022.53, subd. (d)).
On June 28, 2016, the trial court sentenced defendant to the indeterminate term of 50 years to life consecutive to the determinate term of six years, and imposed a consecutive term of four years eight months for an earlier Santa Clara County case. The sentence in the Monterey County case consists of 25 years to life for murder, a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and a consecutive term of six years (the upper term) for first degree burglary. The court struck the firearm enhancement allegation attached to the burglary count as unauthorized by law. (See § 12022.53, subd. (a).)
III. DISCUSSION
A. Prior Inconsistent Statement
Defendant contends that the trial court erred in admitting O.T.'s prior inconsistent statement to Officer Chan about defendant being the assailant who made the shooting comment in the prior armed robbery. Defendant argues that the prosecutor failed to meet the foundational requirements of Evidence Code section 770, and therefore the testimony by Officer Chan was inadmissible hearsay. Defendant argues the error was prejudicial.
The Attorney General contends that Officer Chan's testimony was admissible pursuant to Evidence Code section 770 because O.T. was given an opportunity to explain or deny the prior inconsistent statement. The Attorney General argues that, even if she was not given this opportunity, the trial court properly admitted her prior inconsistent statement in the interests of justice. The Attorney General further contends that any error was harmless.
1. Proceedings below
a. The court's pretrial ruling
The prosecution filed a pretrial motion under Evidence Code section 1101, subdivision (b), seeking to admit evidence of three prior cell phone robberies by defendant and his cousin, Dionte Davis. The prior incidents occurred less than two months before the charged offenses, and defendant and Davis were sentenced to prison for offenses arising out of the earlier incidents. The prosecution stated that one of the incidents involved both defendant and Davis armed and that they approached two victims, O.T. and L.C. The prosecution stated that defendant asked Davis multiple times after the cell phones had already been taken whether he should shoot L.C. The prosecution stated that both victims identified defendant from photograph lineups. The prosecution argued that this incident and the two other incidents were probative of intent, among other issues.
At a hearing on the motion, defendant contended that the evidence should be excluded under Evidence Code Section 352. The trial court ruled that evidence of one incident, in which defendant asked whether he should shoot the victim after the cell phones had been taken, would be admissible on the issue of defendant's motive and intent, including premeditation and deliberation, for the charged offenses.
b. Evidence of prior conduct presented to the jury
As we have set forth, the evidence at trial reflected that O.T. and her friend were robbed at gunpoint by two assailants, defendant and another person. O.T. initially testified that each assailant had a gun, but she subsequently testified that she did not remember whether the incident involved one gun or two guns. She also testified that she did not remember whether the person she had identified in the photograph lineup, who she indicated was defendant, was the assailant who had referred to shooting them, or was the second assailant who had said not to shoot them. After the prosecution and the defense completed their questioning of O.T., she was excused from giving further testimony in the action.
c. First limiting instruction
After O.T. testified, the trial court instructed the jury that it could consider evidence that defendant committed a prior robbery for the limited purpose of deciding whether defendant acted with the intent to kill with premeditation and with the intent to steal. Pursuant to CALCRIM No. 375, the jury was instructed to not consider this evidence for any other purpose, to not conclude from this evidence that the defendant had a bad character or was disposed to commit crime, that the evidence was not sufficient by itself to prove that the defendant was guilty of murder or burglary, and that the prosecution must still prove the charged offenses beyond a reasonable doubt.
d. The court's ruling during trial
Later, outside the presence of the jury, the trial court expressed concern about having allowed evidence of the incident involving O.T. The court explained that, in making its pretrial ruling that the evidence was admissible on the issue of intent to kill and premeditation and deliberation, the court had considered the similarity of the uncharged and charged offenses. It had been the court's understanding before O.T. testified that defendant was the person with the gun and that he had made the shooting statement. The court found that O.T.'s testimony, however, was "muddled at best" on these points. The court indicated that the evidence might be sufficient on the issue of intent to steal. The court stated that it might have to "revisit" and "reinstruct" the jury on the issue because it was "not comfortable" with its ruling.
The following day, the trial court and the parties discussed the issue again outside the presence of the jury. The prosecutor indicated his intent to call as witnesses (1) defendant's accomplice Davis, and (2) San Jose Police Detective Ryan Chan, who took statements from O.T. during the investigation of the incident. The prosecutor indicated that Detective Chan's testimony would "[p]robably" be admissible under the prior inconsistent statement exception to the hearsay rule. The court expressed disagreement, stating to the prosecutor, "[Y]ou didn't give [O.T.] a chance to address the inconsistencies. She either has to be subject to recall or you needed to confront her with impeachment statements you're seeking to introduce." The court further explained, "You need to say, were you asked this and did you answer this. The witness needs the opportunity to be confronted with the prior inconsistent statement before it's admissible."
Defendant requested that the court strike O.T.'s testimony pursuant to Evidence Code section 352. The court indicated that it might still allow O.T.'s testimony on the issue of intent to steal, but the court would have to think about it. The court indicated it was up to the prosecutor whether to call Davis, who would be a reluctant witness.
The prosecutor called Davis to testify. In front of the jury, Davis refused to answer the prosecutor's questions.
Later that day, after the trial court and the parties obtained a transcript of O.T.'s testimony, the court addressed the issue again. The court ruled that Detective Chan would be allowed to testify about O.T.'s report of who had the gun and what was said, as prior inconsistent statements under People v. Fierro (1991) 1 Cal.4th 173, 221 (Fierro). The court referred to the purpose of the hearsay exception and the "truth seeking endeavor" in its application, and that "there's no question here that this incident [involving defendant and O.T.] happened and that she made these statements at the time. [¶] And, if not for [the prosecutor's] failure, for lack of a better word, to ask one question, really maybe two, we wouldn't even have spent this much time on this. Really it's kind of a hyper-technical requirement if I disallow the testimony at this time. Again, no one is doubting its truthfulness as to what she told the officer at the time. So I'll allow it for that reason under People versus Fierro."
Defense counsel argued that "the truthfulness that the incident occurred is not necessarily our concern," but that there was an issue regarding "the roles" defendant and Davis played during the incident. The trial court indicated its understanding that O.T. had apparently been clear when talking to the detective about "what [defendant] did versus [Davis]" and that no party had argued to the contrary.
e. Officer Chan's testimony
San Jose Police Officer Ryan Chan subsequently testified that he interviewed O.T. about being a victim of an armed robbery. Officer Chan testified that O.T. identified the person in the photograph lineup as the person who was armed with a firearm and who had asked the other assailant whether he should shoot one of the victims. At trial, O.T. indicated that the person in the photograph was defendant.
f. Arguments to the jury concerning prior conduct
The prosecutor in argument referred to O.T.'s and Officer Chan's testimony and indicated that defendant had made the shooting statement during the prior robbery of O.T. and her friend. The prosecutor told the jury that it could consider the evidence in determining defendant's intent in the present case.
g. Second limiting instruction
Prior to deliberations, the trial court again instructed the jury pursuant to CALCRIM No. 375 regarding evidence of an uncharged offense by defendant. The court instructed the jury that it could consider the evidence for the limited purpose of deciding (1) whether defendant acted with the intent to kill with premeditation and deliberation and with the intent to commit a theft, and (2) whether defendant had a motive to commit the charged offenses.
2. Applicable law
If a witness's in-court testimony is inconsistent with the witness's prior out-of-court statement, the prior out-of-court statement may be admitted for its truth if certain conditions are met. (Evid. Code, §§ 1235, 770.) As to whether the testimony is inconsistent, "[g]enerally . . . the testimony of a witness indicating that he or she does not remember an event is not inconsistent with a prior statement describing the event. [Citation.] 'But justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness.' [Citations.]" (Fierro, supra, 1 Cal.4th at p. 221.) Thus, "[u]nder certain circumstances, testimony may be considered inconsistent with prior statements when it reflects absence of recollection or evasiveness. [Citations]." (People v. Dykes (2009) 46 Cal.4th 731, 758.)
In order for a witness's prior inconsistent statement to be admitted into evidence for its truth, the statement must be "offered in compliance with [Evidence Code] Section 770." (Evid. Code, § 1235.) Evidence Code section 770 provides that extrinsic evidence of a prior inconsistent statement must be excluded unless one of the following conditions are met: (a) the witness was given "an opportunity to explain or to deny the statement" while testifying, (b) the witness "has not been excused from giving further testimony in the action," or (c) "the interests of justice otherwise require." In other words, in general, if a witness is not given an opportunity to explain or deny the prior inconsistent statement and the witness is excused at the end of his or her testimony, the prior inconsistent statement must be excluded. (Evid. Code, § 770, subds. (a) & (b).)
Regarding the "interests of justice" exception to Evidence Code section 770, the California Law Revision Commission comments accompanying that section state as follows: "Where the interests of justice require it, the court may permit extrinsic evidence of an inconsistent statement to be admitted even though the witness has been excused and has had no opportunity to explain or deny the statement. An absolute rule forbidding introduction of such evidence where the specified conditions are not met may cause hardship in some cases. For example, the party seeking to introduce the statement may not have learned of its existence until after the witness has left the court and is no longer available to testify." (Cal. Law Revision Com. com., reprinted at 29B pt. 2 West's Ann. Evid. Code (1995 ed.) foll. § 770, p. 423.)
A trial court's determination to admit evidence under Evidence Code sections 1235 and 770 is reviewed for an abuse of discretion. (People v. Alexander (2010) 49 Cal.4th 846, 908, 909 (Alexander).)
3. Analysis
At trial, O.T. testified that one or both assailants had a gun, and that one of the assailants made a comment about shooting one or both victims after their cell phones had already been taken. O.T. also testified that she identified one of the assailants in a photograph lineup by the police. She indicated that the person in the photograph was defendant. O.T. further testified that she did not remember which assailant made the shooting comment.
Officer Chan testified that O.T. identified the person in the photograph lineup as the assailant who was armed with a firearm and who had asked whether to shoot one of the victims. At trial, however, O.T. was never asked about this statement to the police, that is, whether she told the police who made the shooting comment. Although the prosecutor showed O.T. a "report" to refresh her recollection about what the assailant said, the prosecutor never asked O.T. about whether she told police who (or which of the two assailants) made the shooting comment. Because O.T. was not given an opportunity to explain or deny the statement to the police about which assailant made the shooting comment, and because she was excused as a witness at the conclusion of her trial testimony (before Officer Chan testified), the prosecution failed to satisfy Evidence Code section 770. As the prosecution failed to comply with Evidence Code section 770 in offering evidence of O.T.'s prior statement through Officer Chan, the trial court should not have allowed Officer Chan to testify under Evidence Code section 1235 that O.T. had identified which assailant made the shooting comment.
We are not persuaded by the Attorney General's citation to People v. Buttles (1990) 223 Cal.App.3d 1631 (Buttles), to support the argument that the evidence was properly admitted. In Buttles, the witness's prior inconsistent statement was admissible because the witness "was excused subject to recall" and "[t]hus, [the witness] was still available to take the stand to explain or deny the statements." (Id. at p. 1639, italics added.) In this case, O.T. was not subject to recall after she concluded her testimony.
We are also not persuaded by the Attorney General's argument that the trial court properly admitted the evidence pursuant to the "interests of justice" provision in Evidence Code section 770. In construing the Evidence Code, the California Law Revision Commission comments are entitled to " 'substantial weight.' " (People v. Riccardi (2012) 54 Cal.4th 758, 824.) The California Law Revision Commission comments to Evidence Code section 770 indicate that the "interests of justice" provision applies when, "[f]or example, the party seeking to introduce the statement may not have learned of its existence until after the witness has left the court and is no longer available to testify." (Cal. Law Revision Com. com., supra, foll. § 770, p. 423.) In this case, the record reflects that the prosecutor knew before O.T. testified at defendant's murder trial that she had made statements to the police about the robbery committed against her and her friend. The prosecutor also knew before O.T. left the witness stand that she was unable to remember some of the details about the incident that she had earlier been able to tell the police, including which assailant made the shooting comment. The prosecutor neither gave O.T. an opportunity to explain or deny her statement to the police about which assailant made the shooting comment, nor preserved the opportunity to recall her as a witness. Under the circumstances, we are not persuaded that the interests of justice provision of Evidence Code section 770 applies in this case.
We conclude, however, that the error in admitting the testimony by Officer Chan was harmless because there is no reasonable probability the jury would have returned a more favorable verdict had his testimony not been admitted. (People v. Johnson (1992) 3 Cal.4th 1183, 1220; Alexander, supra, 49 Cal.4th at p. 910.) The prosecution presented a compelling case of felony murder based on a killing "committed in the perpetration of burglary or robbery (§ 189).
First, there was compelling evidence that defendant had been in the victim's motel room, and that defendant was the person who shot the victim. Indeed, on appeal, defendant in his "prejudice argument [does] not dispute that issue." The evidence at trial reflected that the victim was not a violent person, had no known enemies, and had not expressed to family or friends that anyone was out to get him. Although Russo had been in the victim's room for several hours during the night and into the early morning, Russo testified that the victim was alive and awake when he left. The victim's phone conversation with another friend, J.T., at 4:29 a.m. confirmed that the victim was still alive in the early morning of the day he was killed. Significantly, defendant's fingerprint was found on a bottle in the victim's room, and key cards from that motel were found at the residence where defendant stayed with his mother. The last outgoing call by the victim on his cell phone occurred shortly before 5:00 a.m., and within approximately one hour, defendant had called the cell phone company to switch the victim's phone and to use it as defendant's own phone. Only a short time before, defendant was trying to meet with a prostitute who he wanted to violently beat and rob. Defendant was not consistent in his accounts to the police about his activities during the time of the victim's death, and the police could not confirm where he had been and who he had been with. Although investigators testified that the crime was not publicized and that the cause of the victim's death was not shared with defendant or his family members, defendant brought up the fact that the victim had been shot and referred to the victim's short stature during police interviews. Despite defendant's repeated denials to investigators about being in the motel, the evidence was compelling that defendant, and not someone else, had shot the victim at the motel.
Second, there was compelling evidence that defendant had the intent to commit a burglary of the motel room and a robbery of the victim before the victim was killed. Defendant had no income and relied on his mother and sister for money. Less than two months earlier, defendant participated in the cell phone robberies of O.T. and her friend. Shortly before the victim in this case was killed and his cell phone was taken, defendant was communicating with a prostitute who he admittedly was trying to rob. Defendant and the victim in this case had no prior connection. However, within approximately one hour of the victim's last cell phone call and defendant being rejected by the prostitute who he intended to rob, defendant was in possession of the victim's phone and using it as his own. There was little evidence to suggest that defendant may have entered the victim's room for a reason other than to take property and to hurt the victim. Even if the victim had voluntarily invited defendant, a stranger, into the motel room in the early morning hour, defendant's entry with the intent to commit theft would still constitute burglary. (See People v. Frye (1998) 18 Cal.4th 894, 954 ["a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner's or occupant's consent"]; accord, People v. Castaneda (2011) 51 Cal.4th 1292, 1326.)
In view of this evidence, the prosecution presented a compelling case of first degree burglary (§ 459; count 2), of felony murder (§§ 187, subd. (a), 189; count 1), and of defendant intentionally and personally discharging a firearm causing death (§ 12022.53, subd. (d)). We do not believe there is a reasonable probability the jury would have returned a more favorable verdict had Officer Chan's testimony, regarding which assailant made the shooting comment in the robbery of O.T. and her friend, not been admitted into evidence. (People v. Johnson, supra, 3 Cal.4th at p. 1220; Alexander, supra, 49 Cal.4th at p. 910.)
B. Amendment to Section 12022 .53
The jury found true an enhancement allegation that defendant personally and intentionally discharged a firearm causing Perez's death within the meaning of section 12022.53, subdivision (d). Section 12022.53, subdivision (d) provides for "an additional and consecutive term of imprisonment in the state prison for 25 years to life."
At the time of sentencing in this case, section 12022.53 contained a provision prohibiting a trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h); see Stats. 2010, ch. 711, § 5.) However, section 12022.53 was amended effective January 1, 2018—while this appeal was pending. Section 12022.53, subdivision (h) now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2.)
Defendant is entitled to the benefit of the amended version of section 12022.53 under the retroactivity principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66 (Francis). Estrada set forth an exception to the general rule that changes in the law apply prospectively: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, 63 Cal.2d at p. 745.)
Francis determined that the same exception applied when a statutory amendment gave the trial court discretion to impose a lower sentence. In that case, the defendant was convicted of committing a felony drug offense. While his case was pending on appeal, the statute was amended to change the drug offense from a straight felony to a wobbler that could be charged as a felony or a misdemeanor. The Francis court determined that the amendment was retroactive under the principles of Estrada. (Francis, supra, 71 Cal.2d at pp. 75-78.) The court reasoned that while the amendment did not guarantee Francis a lower sentence, making the crime punishable as a misdemeanor showed a legislative intent that punishing the offense as a felony might be too severe in certain cases. (Id. at p. 76.) Thus, under the principles of Estrada and Francis, the amended version of section 12022.53 applies to defendant in this case.
This court sent the parties a letter indicating it was inclined to remand for resentencing so that the trial court could consider exercising its discretion to strike the section 12022.53, subdivision (d) enhancement. This court invited supplemental briefing by any party that disagreed with the proposed disposition.
The Attorney General contends that the matter should not be remanded for resentencing because the record shows that the trial court would not have exercised its discretion to strike the enhancement. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez) [a remand is not required if the trial court "clearly indicated that it would not . . . have exercised its discretion to strike the allegations"]; People v. Gamble (2008) 164 Cal.App.4th 891, 901 [remand was appropriate where the record did not show whether the trial court would have exercised its discretion had it known it had such discretion].) The Attorney General observes that the trial court considered various documents at sentencing, including the probation report and a letter written by the victim's sister. The court found the following aggravating factors: (1) the crime involved great violence, great bodily harm, and acts disclosing a high degree of cruelty, viciousness, and callousness; (2) defendant was armed with and used a firearm; (3) defendant engaged in violent conduct that indicated a serious danger to society; (4) defendant's prior convictions were numerous and of increasing seriousness; (5) defendant was on probation when the crimes were committed; and (6) defendant's prior performance on probation was unsatisfactory. (See Cal. Rules of Court, rule 4.421(a) & (b).) The court found no circumstances in mitigation. The Attorney General further observes that the trial court sentenced defendant to the maximum term allowed by law, imposing the upper term for the first degree burglary, and ordering the terms for first degree burglary and murder to be served consecutively. The Attorney General contends that, on this record, no purpose would be served by remanding for the trial court to consider exercising its discretion to strike the section 12022.53, subdivision (d) enhancement.
Defendant contends that there are reasons why the trial court might exercise its discretion to strike the enhancement in this case. First, he argues that he was only 18 years old at the time of the crimes, and courts have recognized that youth offenders "lack the mature decision making capacity of adults" even in cases involving terrible crimes. Second, as reflected in the probation report, his father and brother were shot and killed, and defendant claims to suffer from mental health issues. Defendant argues that additional mitigating factors may be developed before resentencing regarding his status as a youth offender and that those factors may lead the trial court to exercise its discretion to strike the enhancement.
We observe that the probation report listed as a possible factor in aggravation the manner in which the crime was carried out as indicative of planning, sophistication, or professionalism. The trial court declined to make such a finding, which could be consistent with a belief by the court that defendant, a young adult at the time of the crimes, displayed a lack of maturity. Further, although the court recognized at sentencing that "there is no more serious crime than that of murder," the court declined to impose the maximum allowable restitution fine of $10,000, which the probation report had recommended "due to the gravity of [defendant's] illegal behavior." (See § 1202.4, subd. (b)(1).) The court instead imposed a restitution fine of $6,000.
We do not believe the record in this case "clearly indicate[s]" that the trial court would not have exercised its discretion to strike the section 12022.53 enhancement. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) In remanding for resentencing, we express no opinion on how the court should exercise its discretion. We simply conclude that the trial court should have the opportunity in the first instance to exercise the discretion recently permitted by statute.
According, we will remand the matter to allow the trial court to consider whether to strike the section 12022.53, subdivision (d) enhancement allegation under section 1385.
C. Youth Offender Parole Hearing
Defendant observes that he is eligible for future parole consideration as a youth offender pursuant to section 3051. He argues that there is only "a limited amount of social data regarding [him] in the probation report." Defendant requests that his case be remanded to the trial court to permit him to "supplement his file with information relevant to a future youthful offender hearing pursuant to" section 3051.
The Attorney General contends that defendant was sentenced after the relevant legal authority—including section 3051 and People v. Franklin (2016) 63 Cal.4th 261 (Franklin)—made it clear that he could make a record at his sentencing hearing of information relevant to his eventual youth offender parole hearing. The Attorney General argues that because defendant already had notice and an opportunity to make such a record at his sentencing hearing, he is not entitled to a remand.
In reply, defendant argues that he was sentenced a little more than a month after Franklin was decided and thus he had "barely one month's notice of the need to prepare a youthful offender profile." He argues this court should "err on the side of caution" and order a remand.
Section 3051, enacted in 2013 (Stats. 2013, ch. 312, § 4), requires the Board of Parole Hearings (the Board) to conduct youth offender parole hearings for eligible offenders, and makes such offenders eligible for release on parole by at least the 25th year of incarceration. (§ 3051, subds. (a)(1), (b)(3).) The statute specifies that the Board is to assess a youth offender's "growth and maturity" in determining whether to grant parole. (Id., subd. (f)(1); see § 4801, subd. (c).)
Initially, section 3051 applied to offenders who were under 18 years of age at the time of their controlling offense, which is defined as "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (§ 3051, subd. (a)(2)(B); see Stats. 2013, ch. 312, § 4; former § 3051, subd. (a)(1).) In 2015, the Legislature amended section 3051 to extend its application to offenders who were under 23 years of age at the time of their controlling offense (Stats. 2015, ch. 471, § 1), and recently, the Legislature amended the statute so that it applies to offenders who were under 25 years of age at the time of their controlling offense (§ 3051, subd. (a)(1); Stats. 2017, ch. 675, § 1; Stats.2017, ch. 684, § 1.5).
The record reflects that defendant was 18 and a half years old at the time of the murder on January 7, 2014. Based on the 2015 amendment to section 3051, which became effective January 1, 2016, the youth offender parole provisions applied to defendant when he was sentenced on June 28, 2016, because he was an offender who was under 23 years of age at the time of his controlling offense. (Stats. 2015, ch. 471, § 1.) Defendant's longest term of imprisonment is an indeterminate term of 25 years to life for the murder conviction. Therefore, pursuant to section 3051, subdivision (b)(3), he will be eligible for release on parole during his 25th year of incarceration.
In Franklin, which was decided on May 26, 2016, the California Supreme Court explained that the new statutory parole scheme for youth offenders "contemplate[s] that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board's consideration." (Franklin, supra, 63 Cal.4th at p. 283; see § 4801, subd. (c).) The court noted that section 3051, subdivision (f)(2) provides that " '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board' " and that "[a]ssembling such statements . . . is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Franklin, supra, at pp. 283-284.) The court further observed that section 3051, subdivision (f)(1) provides that any " 'psychological evaluations and risk assessment instruments' " used by the Board in assessing growth and maturity " 'shall take into consideration . . . any subsequent growth and increased maturity of the individual,' " which "implies the availability of information about the offender when he was a juvenile." (Franklin, supra, at p. 284.)
However, the California Supreme Court found it was "not clear whether Franklin had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) Thus, the court remanded the matter to the trial court "for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Ibid.) The Franklin court specified that if the trial court later determined "that Franklin did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence." (Ibid.)
A number of cases have followed Franklin in concluding that a limited remand was appropriate for a youth offender whose sentencing hearing predated either (a) the enactment of section 3051, (b) the 2015 amendment to that section which extended its application to offenders who were under 23 years of age at the time of their controlling offense (Stats. 2015, ch. 471, § 1), or (c) the California Supreme Court's decision in Franklin which indicated the importance at the sentencing hearing of making a record of information relevant to the eventual youth offender parole hearing (Franklin, supra, 63 Cal.4th at pp. 283-284). (E.g., People v. Costella (2017) 11 Cal.App.5th 1, 9; People v. Jones (2017) 7 Cal.App.5th 787, 819-820; People v. Garrett (2017) 7 Cal.App.5th 871, 884-885; People v. Scott (2016) 3 Cal.App.5th 1265, 1270, 1282-1283; People v. Perez (2016) 3 Cal.App.5th 612, 618-620.)
In this case, by the time of defendant's sentencing hearing, section 3051 had already been amended to apply to offenders, such as defendant, who were under 23 years of age at the time of their controlling offense, and the California Supreme Court had already decided Franklin, indicating the importance at the sentencing hearing of making a record of information relevant to a future youth offender parole hearing. However, in the interest of justice, given that defendant's sentencing hearing was only one month after Franklin was decided, and because we are already remanding the matter for resentencing regarding the section 12022.53 enhancement, we will also direct the trial court to determine whether defendant had an adequate opportunity to make an accurate record of his circumstances and characteristics at the time of his offense, in anticipation of a future youth offender parole hearing.
D. Resentencing in the Santa Clara County Case
In a prior case from Santa Clara County, defendant was convicted of second degree robbery with personal use of a deadly or dangerous weapon (§§ 211, 212.5, subd. (c), 12022, subd. (b); count 3) and four counts of possessing stolen property (§ 496, subd. (a)). Defendant was sentenced to eight years eight months in prison. The sentence consisted of the upper term of five years for second degree robbery, a one-year term for the weapon enhancement, and four consecutive eight-month terms for each count of possessing stolen property.
Following an appeal by defendant in the Santa Clara County case, this court affirmed the judgment. (People v. Johnson (Nov. 30, 2015, H042434) [nonpub. opn.].) On our own motion, we take judicial notice of the record in defendant's appeal in People v. Johnson, supra, H042434.
In conjunction with sentencing defendant for the murder and burglary in Monterey County, the trial court also resentenced defendant in the prior case from Santa Clara County. Regarding the determinate term, the court sentenced defendant in both cases to a total determinate term of 10 years eight months. The determinate term consists of the upper term of six years for burglary in the Monterey County case, and one-third the midterms for second degree robbery and the counts for possessing stolen property in the Santa Clara County case, with the terms in the Santa Clara County case to run consecutive to the term in the Monterey County case. The court also imposed a one-year term for the weapon enhancement (§ 12022, subd. (b)) attached to the second degree robbery in the Santa Clara County case.
Defendant contends that the trial court erred in the Santa Clara County case by imposing a full one-year term for the weapon enhancement on the second degree robbery, rather than imposing one-third the one-year term (four months) for the weapon enhancement. The Attorney General concedes the error.
Defendant refers to the weapon enhancement in the Santa Clara County case as being attached to count 6, possessing stolen property (§ 496, subd. (a)). The record in defendant's appeal in the Santa Clara County case, People v. Johnson, supra, H042434, reflects that the weapon enhancement (§ 12022, subd. (b)) was attached to count 3, second degree robbery (§§ 211, 212.5, subd. (c)). --------
We find the concession appropriate. Section 1170.1, subdivision (a) states in pertinent part that "when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed . . . , the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.) "As used in Section 1170.1, the term 'specific enhancement' means an enhancement that relates to the circumstances of the crime," including an enhancement provided by section 12022. (§ 1170.11.) Section 12022, subdivision (b)(1) generally provides that "[a] person who personally uses a deadly or dangerous weapon in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for one year."
When defendant was originally sentenced in the Santa Clara County case, the robbery with the weapon enhancement (§§ 211, 212.5, subd. (c), 12022, subd. (b)) was the principal offense. Upon resentencing, the burglary in the Monterey County case became the principal offense, and the robbery with the weapon enhancement in the Santa Clara County case became one of several subordinate offenses. When the trial court resentenced the robbery in the Santa Clara County case as a subordinate offense to one-third the middle term, it should have also resentenced the attached weapon enhancement to one-third the one-year term, or four months. (§§ 1170.1, subd. (a), 1170.11, 12022, subd. (b); see People v. Moody (2002) 96 Cal.App.4th 987, 992-993.) Therefore, we will order the imposition of an enhancement term of four months for the section 12022, subdivision (b) weapon enhancement, on count 3 for second degree robbery in the Santa Clara County case.
IV. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for the limited purposes of:
(1) determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings in a future parole eligibility hearing held pursuant to Penal Code section 3051, and, if not, to allow defendant and the People an adequate opportunity to make such a record,
(2) considering whether to exercise the court's discretion to strike the Penal Code section 12022.53, subdivision (d) enhancement pursuant to Penal Code section 1385, and
(3) in the Santa Clara County case, imposing an enhancement term of four months for the Penal Code section 12022, subdivision (b) weapon enhancement, on count 3 for second degree robbery.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.