Opinion
B307797
11-07-2022
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW DAVID DeBOSE, Defendant and Appellant.
Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA469727 James R. Dabney, Judge. Affirmed as modified.
Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
A jury convicted Matthew David DeBose of criminal threats against a fellow passenger on a Metro train, battery with injury on a peace officer, and felony resisting. On appeal, DeBose contends (1) there was insufficient evidence to support the criminal threats conviction; (2) on the battery with injury count, the trial court prejudicially erred by failing to instruct the jury sua sponte on the lesser included offense of battery on a peace officer without injury; (3) his term of probation must be reduced to two years under Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 328) (Assembly Bill 1950); and (4) he is entitled to resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567).
DeBose does not challenge his conviction for felony resisting.
We conclude substantial evidence supports DeBose's criminal threats conviction. We also conclude the trial court erred in not instructing the jury on the lesser to the battery with injury offense and that omission was not harmless. Accordingly, we reduce that count to a misdemeanor. As for the probation term, the Attorney General agrees Assembly Bill 1950 applies to DeBose. The parties also agree DeBose's term of probation already has expired and, accordingly, any necessity for resentencing under Senate Bill 567 is now moot.
FACTS AND PROCEDURAL BACKGROUND
1. The events of July 17, 2018
Around 1:00 in the afternoon of July 17, 2018, Victoria Hare was on the Expo line of the Metro train, heading westbound to a doctor's appointment. A man later identified as DeBose was sitting one row behind Hare, across the aisle. DeBose "seemed to be fumbling through [his] backpack."
A fight broke out in the compartment behind Hare. Two men were on the floor and several other men were standing. Two of the men were "egging . . . on" the fight, saying, "Kick his ass. Beat the shit out of him." DeBose began "egging on" the fight as well, saying, "Let them fight."
The fight wasn't "just a little slap or something." "[T]hey were really fighting," with "heavy blows." Another female passenger stood up and said," 'We got to stop this.'" Hare asked a woman who was standing near the red emergency call button to "just push the button so that we could stop the train." The woman pushed the button five or six times but nothing happened.
When Hare asked the woman to push the red button, DeBose stated," 'Don't press that fucking button, you don't need to press the fucking button. Stay out of it.'" Hare stepped over the passenger sitting next to her and pressed the button "hard," "maybe seven or eight times." The door of the train was "gradually opening"; it didn't open fully so Hare pried it open.
When Hare got up to press the button, DeBose said to her," 'You're a snitch for LAPD, you want to bring the police on a train. You're a stupid Black bitch.'" Raising his voice, he told her," 'If you get your motherfucking ass off on Farmdale, I'm gonna kill your ass.' "
Hare had boarded the train at 7th Street and Metro Center. After Hare pushed the button, the train stopped at the Jefferson/ USC stop. According to an exhibit the People introduced at trial, the Jefferson/USC stop is three stops after 7th Street/Metro Center. The Farmdale stop is five stops after Jefferson/USC.
At trial, when asked if DeBose's statement frightened her, Hare answered, "It really did." She was scared. DeBose was "younger" and "stronger," and Hare was "old enough to be his mother" or "his grandmother." Hare didn't know if DeBose "perhaps . . . had a weapon in his backpack" and, "if he did," "what type of weapon it may have been." Although there were other passengers on the train, Hare didn't know any of them. "I was alone," she testified. "And that even made it worse," because "maybe he would follow me." Hare continued, "[W]hen someone is threatening you and you don't know them, so many things cross your mind." Hare felt "[a]s though [her] life [was] in danger."
After Hare pried open the doors of the train, she stuck her head out and yelled," 'Police, police.'" Los Angeles Police Department Transit Services Detail Officer Paola Leal and her partner, Officer Guillermo Arias, were on the train. The conductor stopped the train and informed the officers "there was a possible fight at the back of the train." The officers followed the conductor to the rear of the train.
A woman later identified as Hare flagged down the officers. Hare pointed directly at DeBose and said," 'This guy is threatening me.'" Another passenger told the officers," 'We all heard him threaten her.'" Hare told the officers she wanted DeBose arrested. The officers ordered DeBose to step off the train so they could speak to him. At first, DeBose didn't respond; he just sat there. Arias calmly asked DeBose several times to step off the train. DeBose refused. DeBose said "the train was going to move, and he was going to move with it." DeBose was "aggressive" and "cursing."
Eventually DeBose got off the train. He said he "didn't want to talk" to the officers and he "was going to leave the area." The officers told him "he was being detained pending a criminal threats investigation." The officers tried to place DeBose in handcuffs but "[h]e took a fighting stance" and "took several steps toward[ ]" Arias. Arias tried to "take a firm grip" of one of DeBose's wrists and Leal tried to take his other wrist. DeBose "immediately broke free" of the officers' grips, pushed Arias against a fence, and then slammed him down to the ground. When DeBose broke away from the officers, it "[s]cared [Hare] to death because they were trying to hold onto him."
Leal tried to pull DeBose off of Arias but that didn't work. She then took her taser out of its holster and fired it at DeBose. While the darts "initially broke [DeBose's] contact" with Arias, they "seemed not to take effect on him"; DeBose stood upright and removed the darts from his side. DeBose "immediately jumped the rail and began to run." He pulled off his shirt and jeans as he ran.
Other officers caught DeBose a short distance away. DeBose told the officers, "In 72 fucking hours y'all bitch fucking made, homie. That little bitch ass cop with that bitch, nigga. Dropped that fucking hoe easy." At trial, DeBose testified the" 'fucking hoe'" he was referring to was Officer Arias.
2. The charges, trial, verdicts, and sentence
The People charged DeBose with criminal threats against Hare (count 1), resisting an executive officer (Officers Arias and Leal) (count 2), and battery on a peace officer (Officer Arias) with injury (count 3). At a pretrial conference on July 3, 2019, DeBose filed a document entitled, "Notice of Motion To Relieve Counsel W/ Pro Se Substitution." DeBose initialed and signed a Faretta waiver form. The court advised DeBose at length about the perils of self-representation. DeBose insisted he wanted to represent himself. The court granted DeBose's motion and relieved the public defender.
Faretta v. California (1975) 422 U.S. 806.
Many pretrials followed. Finally, in October 2019, trial commenced. A jury was selected and sworn. The prosecutor gave a brief opening statement. DeBose then spoke to the jurors at length. The trial court repeatedly admonished DeBose to stop arguing and tell the jurors what the evidence would show. Eventually, outside the jury's presence, the court told DeBose he had two more minutes to conclude his opening statement. DeBose then said he was "sick" and "too ill to go forward." The court granted DeBose's motion for a mistrial and dismissed the jury.
Some four months later, the case again went to trial. DeBose testified on his own behalf. DeBose stated Hare was "very verbal and vocal," and "acting overly hostile." DeBose said Hare "was lying." DeBose first testified he "had no problem" with answering the officers' questions but then said he "just decided to walk off." DeBose stated Arias "abruptly grabbed" his shoulders and DeBose then grabbed Arias by his shoulders "[t]o keep [his] balance and to keep from falling." After Leal tased him, DeBose said, he "decided to flee from the area."
During cross-examination the prosecutor played a recording of DeBose's post-Miranda interview later that day by Sergeant Collins. When Sergeant Collins asked DeBose if he wanted to talk about what had happened, DeBose replied, "I'm minding my business and some bitch start making threats against me . . . . [N]ext thing I know somebody started attacking me and I'm like, you know[,] let me get the fuck up out of here." DeBose claimed someone had tried to stab him. DeBose continued, "[S]he just wanted to call the police. . . . But she called the police, then started threatening me. . . . [S]aying all this crazy shit and then, next thing you know, everyone is getting off the train . . . . Then that's when someone tried to come shank me in my side. And they tried to shank me in my side so I jumped the gate."
Miranda v. Arizona (1966) 384 U.S. 436.
The jury convicted DeBose on all three counts. On August 11, 2020, the trial court sentenced DeBose to the upper term of three years on the criminal threats count as well as the upper terms of three years on the remaining two counts, to be served concurrently. The court suspended execution of the sentence and placed DeBose on formal felony probation for three years.
DISCUSSION
1. Substantial evidence supports DeBose's conviction for criminal threats
DeBose contends we must reverse his criminal threats conviction because his statement to Hare, "I'm gonna kill you" or "I'm gonna kill your ass," "was conditional on its face and was unaccompanied by any circumstances suggesting a gravity of purpose or prospect of immediate execution." We disagree.
a. Standard of review
In reviewing a conviction challenged for insufficient evidence,"' "we review the entire record in the light most favorable to the judgment to determine whether it contains 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." '" (People v. McCurdy (2014) 59 Cal.4th 1063, 1104; People v. Salazar (2016) 63 Cal.4th 214, 242.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith); People v. Booker (2011) 51 Cal.4th 141, 173.)"' "[I]t is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends," '" and if the verdict is supported by substantial evidence, we accord due deference to the trier of fact. (Smith, at p. 739.) The same standard applies when the conviction rests primarily on circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113; People v. Young (2005) 34 Cal.4th 1149, 1175.)
It is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends and, if substantial evidence supports the verdict, we accord due deference to the trier of fact. (Smith, supra, 37 Cal.4th at p. 739.) Reversal is not warranted unless it appears" '" 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" '" (People v. Penunuri (2018) 5 Cal.5th 126, 142; People v. Bolin (1998) 18 Cal.4th 297, 331.)
DeBose acknowledges these authorities but, citing In re George T. (2004) 33 Cal.4th 620, contends we must "independently review the record" because he has raised "a 'plausible First Amendment defense.'" This contention is meritless. In George T., a 15-year-old high school student wrote several poems for an honors English class. One was entitled," 'Dark Poetry.'" The poem described the minor's feelings about the faces surrounding him at his new school. (Id. at pp. 624-625.) The poem also mentioned school shootings. Our high court noted the poem did not "describe or threaten future conduct." (Id. at pp. 635-636.) Here, by contrast, DeBose was not exercising any legitimate First Amendment rights when he told Hare he was going to kill her. (Cf. id. at pp. 634-636.)
b. The elements of the crime
Penal Code section 422 makes it a crime for "[a]ny person . . . willfully [to] threaten[ ] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . ." (§ 422, subd. (a).)
References to statutes are to the Penal Code.
Our Supreme Court has divided the crime of criminal threats into five constituent elements: "In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat . . . was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety . . .,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228; Ayala v. Superior Court (2021) 67 Cal.App.5th 296, 301. See CALCRIM No. 1300.)
The jury here was instructed as follows: "The defendant is charged in Count 1 with having made a criminal threat in violation of Penal Code section 422. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Victoria Hare; [¶] 2. The defendant made the threat orally; [¶] 3. The defendant intended that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to Victoria Hare a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused Victoria Hare to be in sustained fear for her own safety; AND [¶] 6. Victoria Hare's fear was reasonable under the circumstances. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances. [¶] Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory."
" 'To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier "so" unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.'" (In re A.G. (2020) 58 Cal.App.5th 647, 657; In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) "[A]ll of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422. This includes the defendant's mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
"[T]he statute, on its face, does not require that the violator intend to cause death or great bodily injury to the victim. Instead, section 422 is focused on an altogether different type of harm-mental distress." (Ayala v. Superior Court, supra, 67 Cal.App.5th at p. 304; People v. Solis, supra, 90 Cal.App.4th at p. 1024.) Sustained fear occurs over a period of time that extends beyond what is momentary, fleeting, or transitory. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.)" 'Fifteen minutes of fear . . . is more than sufficient to constitute "sustained" fear for purposes of . . . section 422.'" (People v. Wilson (2015) 234 Cal.App.4th 193, 201; People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
c. The evidence here was sufficient
After calling Hare "a stupid Black bitch," DeBose-his voice raised-told her, "If you get your motherfucking ass off on Farmdale, I'm gonna kill your ass." Hare testified DeBose's statement frightened her. She was by herself on the train, she didn't know if DeBose had a weapon in the backpack he'd been "fumbling through," and she thought maybe he would follow her. Hare told the jury she felt "[a]s though [her] life [was] in danger."
DeBose contends "the alleged threat lacked immediacy" because Hare didn't intend to get off the train at the Farmdale stop. We are not persuaded. DeBose, raising his voice, threatened to kill Hare, a complete stranger who was old enough to be his mother, if not his grandmother. He used profanity and called her a "bitch." Hare became even more alarmed when DeBose broke away from the officers, who were trying to detain him.
DeBose also asserts Hare's "elect[ion] to remain in the area for 20-25 minutes" belies her claim of fear. DeBose ignores the rule that we must"' "accord due deference to the trier of fact" '" and"' "presume in support of the judgment the existence of every fact [it] could reasonably deduce from the evidence." '" (Smith, supra, 37 Cal.4th at p. 739; People v. Booker, supra, 51 Cal.4th at p. 173.) Hare told the officers she wanted DeBose arrested" 'even if [she] ha[d] to make a citizen's arrest.'" So she may have wished to speak with them further. We also can readily imagine why Hare might stay with the officers after DeBose fought with Arias, jumped the rail, and ran out of their sight, as his whereabouts then were unknown. (Cf. People v. Allen, supra, 33 Cal.App.4th at pp. 1153, 1155-1156 [even though police arrested defendant within 15 minutes, evidence of victim's "sustained" fear was sufficient to support conviction].)
In short, substantial evidence supports each element of DeBose's criminal threat conviction. (See People v. Orloff (2016) 2 Cal.App.5th 947, 951-954 [defendant's telephone calls to pharmacy manager stating," 'expect something when you least expect it'" and" '[y]ou're dead'" were not merely" 'angry utterance[s] by a disgruntled customer' "; victim reasonably believed defendant "could carry and fire a gun" even though he was in a wheelchair]; In re A.G., supra, 58 Cal.App.5th at pp. 650, 654 [minor's posting of photo of replica gun on Snapchat with caption he was "taking gum" to school the next day violated section 422;" 'the communication and the surrounding circumstances are to be considered together'" in determining if statement is sufficiently unconditional and immediate].)
2. The trial court prejudicially erred in not instructing the jury sua sponte on misdemeanor battery as a lesser included offense of battery on a peace officer with injury
DeBose contends the court was required to "instruct the jury on battery without injury on a peace officer because there was substantial evidence that Officer Arias's injury was not severe enough to require professional medical treatment." We agree.
After both sides rested, the court discussed jury instructions with the parties. The court had prepared a proposed set of instructions. DeBose never asked the court to instruct on any lesser crime to the charge of battery with injury on a peace officer. On that count, the court instructed the jury with CALCRIM No. 945.
The prosecution included in its trial brief a list of proposed instructions. DeBose apparently presented the trial court with copies of some civil jury instructions. The record on appeal does not include those requested instructions. The court explained to DeBose that it wasn't going to give those instructions because the criminal instructions were the appropriate instructions.
CALCRIM No. 945, as given, told the jury, "The defendant is charged in Count 3 with battery against a peace officer in violation of Penal Code section 243. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. Guillermo Arias was a peace officer performing the duties of an Officer; [¶] 2. The defendant willfully touched Guillermo Arias in a harmful or offensive manner; [¶] 3. When the defendant acted, he knew, or reasonably should have known, that Guillermo Arias was a peace officer who was performing his duties; [¶] AND 4. Guillermo Arias suffered injury as a result of the touching. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] An injury is any physical injury that requires professional medical treatment. The question whether an injury requires such treatment cannot be answered simply by deciding whether or not a person sought or received treatment. You may consider those facts, but you must decide this question based on the nature, extent, and seriousness of the injury itself. [¶] A person who is employed as a police officer by Los Angeles Police Department is a peace officer."
Even in the absence of a request, a trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence, including lesser included offenses. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman); People v. Whalen (2013) 56 Cal.4th 1, 68.) This "rule seeks the most accurate possible judgment by 'ensur[ing] that the jury will consider the full range of possible verdicts' included in the charge, regardless of the parties' wishes or tactics." (Breverman, at p. 155.)
Instruction on a lesser included offense is required when there is substantial evidence the defendant is guilty of the lesser offense but not of the greater. (People v. Whalen, supra, 56 Cal.4th at p. 68.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence a reasonable jury could find persuasive. (People v. Hayes (2006) 142 Cal.App.4th 175, 181 (Hayes); People v. Cunningham (2001) 25 Cal.4th 926, 1008.) In deciding whether evidence is" 'substantial'" in this context, a court determines only its bare legal sufficiency, not its weight. (Breverman, supra, 19 Cal.4th at p. 177.)
" 'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense.'" (People v. Smith (2021) 70 Cal.App.5th 298, 308; People v. Cole (2004) 33 Cal.4th 1158, 1218.) "In considering whether the trial court had a sua sponte duty to instruct the jury on lesser included offenses, we construe the evidence in the light most favorable to the appellant." (Smith, at p. 308; People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.) We evaluate trial court error in failing to give a lesser included instruction for prejudice under the People v. Watson (1956) 46 Cal.2d 818 standard. (Breverman, supra, 19 Cal.4th at pp. 165, 176.) Under Watson, reversal is warranted only if-after an examination of the entire cause, including the evidence-it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (Breverman, at p. 178.)
As our colleagues in Division Six noted in Hayes, supra, 142 Cal.App.4th at p. 180, "It is undisputed that battery without injury on a [peace] officer in violation of section 243, subdivision (b), is a lesser misdemeanor offense necessarily included within the charged felony offense of battery with injury on a [peace] officer in violation of section 243, subdivision (c)([2])." As in Hayes, accordingly, "[t]he issue here is whether the record contains substantial evidence that would absolve [DeBose] of battery with injury on [Officer Arias], but justify conviction of the lesser included offense of battery without injury." (Hayes, at p. 181.)
The Hayes court noted the defendant there had mistakenly been charged with a violation of section 243, subdivision (c)(1) (battery with injury on a nonsworn probation department employee) rather than subdivision (c)(2) (battery with injury on a peace officer). "[S]ection 243, subdivision (b), is a lesser included offense of the greater offenses described in both subdivision (c)(1) and (2) of section 243." (Hayes, supra, 142 Cal.App.4th at p. 180, fn. 3.)
Section 243, subdivision (f)(5) defines" 'injury'" as "any physical injury which requires professional medical treatment." (§ 243, subd. (f)(5).) "There is no requirement in the statute the victim of the battery actually receive medical treatment." (In re Michael P. (1996) 50 Cal.App.4th 1525, 1528.) "It is the nature, extent, and seriousness of the injury-not the inclination or disinclination of the victim to seek medical treatment-which is determinative. . . . The test is objective and factual." (People v. Longoria (1995) 34 Cal.App.4th 12, 17.)
In Hayes, the defendant kicked a 50-pound concrete ashtray" 'with great force.'" It toppled over and struck a probation officer in the shin, "inflicting" a" 'laceration'" of four to four and one-half inches. (Hayes, supra, 142 Cal.App.4th at p. 179.)" 'There was a little blood' on the laceration and 'a little swelling.'" The victim put ice on the injury but "chose not to seek professional medical treatment." He testified his leg "was sore for several days" and it took about a week "for the injury to heal." (Ibid.)
Our colleagues concluded a reasonable jury could find the officer's injury was not severe enough to require professional medical treatment. Accordingly, the trial court erred in not instructing on the lesser included misdemeanor, and that error was not harmless.
Here, Officer Arias did not appear or testify at trial.When the People rested without calling Arias, DeBose objected. The court asked the prosecutor, "Have we gotten ahold of Officer Arias?" The prosecutor replied, "No. If I was able to, Your Honor, I would have called him myself."
Arias did testify at the preliminary hearing.
Leal testified that, after the altercation with DeBose, she saw Arias "bent over grabbing his elbow, wincing in pain." The prosecutor marked as exhibits three photographs taken of what appear to be Arias's left arm and one of his legs. Leal testified she saw Arias's elbow "later." The prosecutor asked, "So it doesn't look like there's-well, from this photograph [referring to Exhibit 6], it's hard to tell, but did he have any scrapes, or anything like that, on his arm?" Leal responded, "Aside from this, I didn't see any other scrapes, other than the fact that it was swollen. He had a contusion to it." In response to the question, "So you actually saw his elbow started swelling up?" Leal answered, "Yes." When asked if she'd had "an opportunity to see anything on [Arias's] legs," Leal replied, "I don't recall."
We have examined the exhibits (which the trial court admitted into evidence without objection from DeBose). Exhibit 4 appears to be a photograph of Officer Arias holding a ruler next to the lower part of his upper arm, elbow, and upper part of his forearm. No contusions or swelling are visible. Exhibit 5 is a side view of a leg-again, with someone holding a ruler behind it -from just above the knee to the sock. There appears to be a bruise behind the knee. Exhibit 6 appears to be a close-up of an elbow. Two or three small skin tears are visible. There is no blood, nor any bruising that we can see. As the elbow is somewhat bent, it's not possible to tell if the elbow is swollen. If it is, the swelling is very slight.
At the preliminary hearing, Arias testified he had "contusion[s]" on his left elbow and left inner knee. He also said DeBose punched him once in the forehead with a closed fist and he "just felt dizzy at the time."
These injuries are less severe than the injuries the Hayes court found inadequate to constitute a "physical injury which requires professional medical treatment." (§ 243, subd. (f)(5); Hayes, supra, 142 Cal.App.4th at p. 181. See also In re D.W. (2015) 236 Cal.App.4th 313, 316, 319-320 [redness and irritation of officer's eye after defendant spit in it did not constitute substantial evidence of "injury as that term is defined by the pertinent statute" even though officer's vision was blurry and he had to have followup blood tests for several weeks].)
The Attorney General asserts, "Officer Arias did require medical treatment as evidenced by the ambulance that transported him to the hospital." The Attorney General's sole citation to the record for that assertion, however, is not to any evidence. Rather, it is to DeBose's complaint to the court -when discussing his claimed injuries from being tased-that "[t]hey only got one ambulance, and that was for the other guy, the officer." Nor does the record support the Attorney General's contention that "Officer Arias could not join Officer Leal in pursuing [DeBose] to apprehend him and take him into custody."
The prosecutor did not ask Arias anything at the preliminary hearing about an ambulance.
Leal testified that, after DeBose removed the taser darts, he "jumped the rail" next to the train platform down onto Flower Street "and began to run." Leal lost sight of DeBose. Fifteen to 20 minutes later, Leal saw him at another Metro train platform, where other officers had detained him. On cross-examination by DeBose, Leal testified, "When you jumped the rail and I went around to chase you, we were about a half a block away from each other." Leal continued, "[A]fter that, you gained distance, you kept running, you ignored my commands to stop. . . . I witnessed you continue to run, while I verified that my partner was okay." Leal never was asked, nor did she ever testify, that Arias was unable to chase DeBose. At the preliminary hearing, Arias testified that, after DeBose "jumped from the rail onto the street level" and "fled," "[w]e ran after him."
Given the exhibits, as well as Leal's testimony, it is "likely that the jury would have returned a guilty verdict on the lesser included offense had the jury been given that option." (Hayes, supra, 142 Cal.App.4th at p. 183. See Breverman, supra, 19 Cal.4th at p. 177 [court must instruct on lesser whenever a reasonable jury"' "could . . . conclude[ ]" '" that the lesser but not the greater offense was committed].) Accordingly, we reduce DeBose's conviction on count 3 for battery on an officer with injury to misdemeanor battery on an officer without injury in violation of section 243, subdivision (b).
The Attorney General correctly recites the general rule that" '[w]hen a greater offense must be reversed, but a lesser included offense could be affirmed, [the appellate court] give[s] the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.'" (Hayes, supra, 142 Cal.App.4th at p. 184.) In the interest of judicial economy, however, we simply reduce the conviction to a misdemeanor. The Attorney General advised the court at oral argument that the District Attorney does not intend to retry DeBose on count 3.
3. Under Assembly Bill 1950, DeBose's term of probation is reduced to two years and has expired, mooting any need for resentencing under Senate Bill 567
DeBose asserts Assembly Bill 1950 applies to him and asks us to reduce his probation term to two years. The Attorney General agrees Assembly Bill 1950 applies to cases not yet final on appeal, including DeBose's.
Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1 to limit the maximum probation term that may be imposed for most felony offenses. (People v. Forester (2022) 78 Cal.App.5th 447, 451.) As amended, section 1203.1 now states felony probation" 'may continue for a period of time not exceeding two years.' " (Forester, at p. 452; § 1203.1, subd. (a).) There are exceptions to this general rule, none of which applies here. (See § 1203.1, subd. (l).)
Assembly Bill 1950 also amended former section 1203a to limit probation terms to one year for most misdemeanor offenses. (Stats. 2020, ch. 328, § 1. See People v. Flores (2022) 77 Cal.App.5th 420, 429-430 (Flores), review granted June 22, 2022, S274561.)
The two-year felony probation limitation doesn't apply to violent felonies listed in section 667.5, subdivision (c), to offenses that include specific probation lengths within their provisions, and to certain theft crimes. (People v. Forester, supra, 78 Cal.App.5th at p. 452.)
All of the appellate courts to have considered the issue of retroactivity "have held that Assembly Bill 1950's new limit on probation is ameliorative and, therefore, applies retroactively to cases that are not yet final on appeal." (People v. Shelly (2022) 81 Cal.App.5th 181, 185, review granted Sept. 21, 2022, S276031; Flores, supra, 77 Cal.App.5th at pp. 420, 431-432 [listing cases]; People v. Sims (2021) 59 Cal.App.5th 943; People v. Quinn (2021) 59 Cal.App.5th 874.) "Based on this unbroken line of authority, the parties agree that Assembly Bill 1950 applies retroactively, and we do too." (Shelly, at p. 186.)
The trial court placed DeBose on probation on August 11, 2020. Accordingly, under section 1203.1 as amended, it appeared his probation expired on August 10, 2022. We asked the parties to submit supplemental letter briefs under Government Code section 68081 addressing whether DeBose's probation has expired and, if so, whether that expiration moots any necessity for the trial court, on a remand, to resentence DeBose in light of Senate Bill 567.
Senate Bill 567 amended section 1170, subdivision (b) to limit the sentencing discretion of trial courts. (Stats. 2021, ch. 731, § 1.3; People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108.) As amended, the statute generally requires a court to "order imposition of a sentence not to exceed the middle term," except where there are circumstances in aggravation of the crime and the defendant either has stipulated to the facts underlying those circumstances or a jury (or a judge in a court trial) has found them true beyond a reasonable doubt. (§ 1170, subd. (b)(1), (2); Zabelle, at pp. 1108-1109.)
In his letter brief, the Attorney General notes, "The record reflects that appellant's probation has never been revoked." Accordingly, the Attorney General "agrees that appellant's term of probation has now expired by operation of Assembly Bill No. 1950, and that remand for a reduction of probation is no longer necessary." And, in his letter brief, DeBose's counsel states, "Because appellant's probation term expired on August 10, 2022, any necessity for the trial court to resentence appellant on remand is moot."
As the parties are in agreement, we reduce DeBose's term of probation to two years and note that his probation has now expired. (See People v. Quinn, supra, 59 Cal.App.5th at p. 885; Flores, supra, 77 Cal.App.5th at p. 453.)
The trial court retains its authority to determine whether DeBose successfully completed probation and whether he has met the requirements for expungement under section 1203.4, subdivision (a), if he applies for that relief. (Flores, supra, 77 Cal.App.5th at p. 453.)
DISPOSITION
We affirm Matthew David DeBose's felony convictions for criminal threats and resisting an executive officer. We reduce DeBose's conviction on count 3 to a misdemeanor, battery on an officer without injury in violation of section 243, subdivision (b), and affirm that conviction as modified. We reduce DeBose's term of probation to two years and direct the trial court to amend its records to reflect this modification and that DeBose's term of probation expired effective August 10, 2022.
We concur: LAVIN, Acting P. J. ADAMS, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.