Opinion
C082953
10-26-2018
THE PEOPLE, Plaintiff and Respondent, v. TYRONE COOPER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F07316)
A jury convicted defendant Tyrone Cooper of assault with a deadly weapon, to wit, a knife. As instructed, the jury then acquitted him of assault by means of force likely to produce great bodily injury, the alternative charge. The jury did not sustain the allegation of personal infliction of great bodily injury.
In bifurcated proceedings, the People dismissed two of the three strike prior allegations. The trial court sustained allegations of the remaining strike prior, three prior felony convictions, and two prior prison terms.
Sentenced to state prison, defendant appeals. He contends (1) insufficient evidence supports his conviction, (2) the trial court erroneously excluded character evidence of the victim, and (3) one of the prior prison terms must be stricken because the prior felony offense had been reduced to a misdemeanor for all purposes prior to sentencing in the current case. We will strike one of the prior prison term enhancements. We will otherwise affirm the judgment.
FACTS
About 11:20 p.m. on December 3, 2015, having finished his shift at work and heading for home, the victim boarded the light rail train with his bicycle at the Mather Field/Mills station in Rancho Cordova. Defendant, who was already on the train and sitting near the door of the car the victim entered, was yelling loudly and repeatedly, "I wish a motherfucker would say something." The victim looked around the car to see who defendant was yelling at and noticed there were very few people on the train. When the victim saw that defendant was staring at him, the victim asked, "Are you talking to me?" Defendant responded incoherently, yelling something about "motherfucker" and staring at the victim. When the train began to move, defendant jumped up from his seat, pulled a knife from his back pocket, and shifted the knife from his left hand to his right hand. Defendant held the knife at his side with the blade sticking out of the top of his hand. In five to 10 seconds, defendant took a couple of small steps toward the victim. The victim did not move and asked if defendant was planning to stab him. Defendant again yelled something about "motherfucker." The victim unzipped his jacket, explaining he "wanted to be able to move freely if [he] had to." The victim again asked if defendant was planning to stab him. The victim felt threatened. When defendant was within two feet of the victim, the victim swung his right arm toward defendant, hitting defendant on the neck or the left side of his head. Simultaneously, the victim used his left hand to grab defendant's arm holding the knife. A physical struggle ensued with the victim pinning defendant and taking and throwing the knife away from him.
During the struggle, the victim sustained a laceration to his chin which bled all over the train car and on the victim's clothes. The laceration required 20 stitches at the hospital. The police arrived and found blood on defendant's knife. The victim told responding officers and paramedics that he thought he had been head butted and not stabbed. The victim did not recall telling a doctor that defendant had a knife but did not stab him. The victim testified that he did not know whether the knife caused the injury but remembered defendant trying to bring the knife up toward his face and midsection during the struggle.
A passenger on the train saw defendant and the victim standing and heard defendant yelling at the victim, "Why are you staring at me?" and "What are you going to do?" The passenger saw that defendant had a knife and when the victim tried to defend himself from the knife, the two collided.
A surveillance camera recorded the incident on the train car. The video was played for the jury.
Defendant testified. He explained that he had been riding light rail listening to his rap music. Defendant claimed the victim got on, balled up his fist, stared angrily at defendant, and spoke to him in a loud and aggressive tone. Defendant felt threatened, stood up, walked towards the victim, pulled out his knife to use in self-defense, and yelled at the victim "to get out of [defendant's] face." The victim said several times, "What are you going to do?" and defendant said several times "to get out of [his] face" and "to sit down." Defendant got closer to the victim to talk and the victim hit him in the head. Defendant never took a swing at the victim and tried to protect himself.
The victim assaulted a prior spouse. In 2014 the victim, who had been drinking, accused his prior spouse of cheating, strangled her with both hands, and punched her in the face, causing her to fall. A few days prior, the victim crushed his prior spouse's phone and pinned her down on the bed.
Defendant was convicted of several felony and misdemeanor theft offenses and misdemeanor domestic violence in 2013. A home improvement store security officer testified about his attempt to detain defendant, who had stolen merchandise from the store. Defendant pulled out a knife, smirked, and continued walking away. In another incident, defendant pulled out a knife to deter his detention after he stole merchandise from a department store. Defendant pulled his girlfriend down the stairs by her hair. She suffered abrasions on her foot and ankle.
I
Defendant contends only speculative evidence supports his conviction, arguing "[n]o witness testified that [he] 'did an act that by its nature would directly and probably result in the application of force,' with the knife." Defendant argues that no one testified that defendant tried to stab the victim. He claims the evidence proved at most the offense of brandishing. We conclude sufficient evidence supports his conviction.
"On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ' "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' [Citation.] 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt." ' [Citation.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)
To prove defendant violated Penal Code section 245, subdivision (a)(1), the prosecution was required to prove:
Undesignated statutory references are to the Penal Code. --------
"1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. 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; [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person; [¶] and [¶] 5. The defendant did not act in self-defense." (CALCRIM No. 875-1) The instruction defined "willfully" and the terms "application of force" and "apply force." The instruction further stated that "[t]he People are not required to prove that the defendant actually touched someone" and that "[t]he touching can be done indirectly by causing an object to touch the other person." Further, the instruction stated that "[t]he People are not required to prove that the defendant actually intended to use force against someone when he acted." And the instruction informed the jury that an injury was not required but if shown, the jury "may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was."
The victim's testimony accompanied by the surveillance video of the incident viewed by the jury and the passenger's testimony supports defendant's conviction. A reasonable person would believe that the manner in which defendant pulled out a knife and approached the victim would directly and probably result in the application of force against the victim. Moreover, even though an injury is not a required element of the offense, the fact that the victim was injured could be considered by the jury in deciding whether defendant committed an assault with a knife. Credibility determinations were for the jury and this court does not reweigh the evidence. Sufficient evidence supports defendant's conviction for assault with a deadly weapon, to wit, a knife.
II
Defendant next contends that the trial court prejudicially erred in excluding evidence of the victim's character for violence which would have supported his defense of self-defense. We conclude that the trial court did not abuse its discretion. Background
For purposes of showing self-defense, defendant sought to introduce evidence of the victim's character and his character trait for violence, to wit:
(1) in 1999 the victim allegedly choked and raped his first wife;
(2) in 2001 and 2003 the victim spanked his children;
(3) in 2001 the victim verbally abused his first wife and when her brother attempted to intervene, the victim punched the brother in the face, causing him to lose consciousness; charged with battery causing serious bodily injury, the victim pleaded to misdemeanor assault on the brother and was ordered to attend anger management class;
(4) in 2003 the victim allegedly violated a restraining order and refused to cooperate with investigating officers;
(5) in 2007 the victim kicked a police officer who pulled him over for driving under the influence; and
(6) in September 2014 the victim choked and punched a prior spouse, resulting in the victim pleading no contest to a domestic violence offense and two days earlier, the victim broke her phone.
Defense counsel argued that the victim, by punching defendant first, acted in a violent manner consistent with his character. The People objected, arguing there was no issue of self-defense and the evidence was more prejudicial than probative.
The trial court ruled that only the September 2014 incidents were admissible. Exercising its discretion under Evidence Code section 352, the trial court concluded that the introduction of some of the remaining incidents were not probative of the victim's character for violence, would be more prejudicial than probative, involve an undue consumption of time, and confuse the issues, and that some incidents were remote. Analysis
Generally, character evidence is inadmissible. (Evid. Code, § 1101, subd. (a).) An exception allows the defendant to offer character evidence to prove the conduct of the victim is in conformity with the victim's character or trait of character. (Evid. Code, § 1103, subd. (a)(1).) A defendant charged with an assault offense who raises self-defense may present evidence of the violent character of the victim through evidence of the victim's prior acts of violence to show the victim was the aggressor. (People v. Wright (1985) 39 Cal.3d 576, 587; People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-448 (Shoemaker).)
Admission of character evidence is subject to Evidence Code section 352, which allows the court to "exclude evidence if in the court's discretion 'its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (Shoemaker, supra, 135 Cal.App.3d at p. 448.) The trial court's exercise of its discretion will not be disturbed on appeal unless it is shown that the court's decision is arbitrary, capricious, or patently absurd. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, the trial court allowed evidence of the 2014 incidents during which the victim abused his former spouse. This recent evidence of a prior assault was sufficient to demonstrate that the victim could be a violent person. The trial court's exclusion of the remote evidence of the victim's past conduct was not an abuse of discretion. Such incidents, the trial court determined, would involve an undue consumption of time and confuse the issues, and would be more prejudicial than probative. We cannot say the trial court's ruling was arbitrary, capricious, or patently absurd. Defendant has failed to demonstrate an abuse of discretion.
III
Over defendant's objection, the trial court found the allegation of a prior to be true within the meaning of section 667.5, subdivision (b) and used the prior to enhance defendant's sentence by one year. Defendant served a prior prison term for a 1999 felony conviction for possession of a controlled substance which was reduced to a misdemeanor during the pendency of the current case (§ 1170.18). Defendant contends the prior cannot be used to enhance his current sentence pursuant to section 667.5, subdivision (b). The People concede. We agree.
Proposition 47 provides that a person who has completed a felony sentence for certain offenses may apply to have his or her conviction or convictions "designated as misdemeanors." (§ 1170.18, subd. (f).) In such case, the conviction "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)
In People v. Kindall (2016) 6 Cal.App.5th 1199, this court held that where a felony underlying a prior prison term has been redesignated as a misdemeanor "for all purposes" under Proposition 47, it ceases to exist as a felony for all purposes moving forward. Because the felonies had been redesignated as misdemeanors, the People could no longer prove the defendant was previously convicted of the felonies for purposes of section 667.5, subdivision (b) enhancements. Kindall modified the judgment, striking the prior prison terms erroneously imposed. (Kindall, at pp. 1203-1205.) Our Supreme Court recently affirmed this principle in People v. Buycks (2018), 5 Cal.5th 857.
Here, the trial court found the prior prison term allegation for the 1999 drug conviction to be true but at the time of the finding, the prior felony drug conviction had already been reduced to a misdemeanor. Thus, the court could no longer find defendant had sustained the prior felony conviction as alleged because the felony had been reduced to a misdemeanor for all purposes moving forward. We conclude the trial court erred in sustaining the prior prison term allegation for the 1999 drug conviction.
We will order the prior prison term for the 1999 drug conviction stricken, reducing defendant's state prison sentence from 25 years to 24 years. We reject the People's request for remand for resentencing.
DISPOSITION
The judgment is modified, striking the one-year prior prison term enhancement for the 1999 felony conviction for drug possession which was reduced to a misdemeanor during the pendency of the current case. The trial court is directed to prepare an amended abstract of judgment, deleting one prior prison term enhancement pursuant to section 667.5, subdivision (b), resulting in a total prison sentence of 24 years, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
RAYE, P. J. We concur: MAURO, J. RENNER, J.