Opinion
F075093
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES ANTHONY FOSTER, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1461897)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On June 11, 2010, appellant James Anthony Foster shot and killed Brian Morris in an orchard in rural Modesto, California. A jury convicted appellant of premeditated and deliberate murder (Pen. Code, § 187, subd. (a); count 1). In a bifurcated court trial, the court found true allegations that appellant had suffered a prior serious felony (§ 667, subd. (a)) and a strike prior (§ 667, subd. (d)). The prosecutor moved the court to strike three prior prison term allegations (§ 667.5, subd. (b)). The court granted the request and struck the prior prison term allegations.
All further undesignated statutory references are to the Penal Code.
Appellant received an aggregate prison term of 75 years to life plus a determinate term of five years. This consisted of 25 years to life for count 1 (first degree murder), doubled to 50 years for the strike prior (§ 667, subd. (d)), plus a 25-years-to-life firearm enhancement (§ 12022.53, subd. (d)), along with a five-year prior serious felony enhancement (§ 667, subd. (a)). The trial court also imposed and stayed one-year terms for the three prior prison terms.
The court also imposed a restitution fine of $10,000 (§ 1202.4, subd. (b)(1)); a parole revocation restitution fine of $10,000 (§ 1202.45, subd. (a)), which was stayed pending successful completion of parole; a court operations assessment of $40 (§ 1465.8, subd. (a)(1)); and a criminal conviction assessment of $30 (Gov. Code, § 70373, subd. (a)(1)). The court did not ascertain appellant's ability to pay these fees, fines and assessments prior to imposing them.
At trial, recordings of two previous interviews a witness made to law enforcement were played for the jury. In each interview, the witness made a brief reference to appellant having been in prison in the past. Appellant appeals the judgment of his conviction, contending his trial counsel provided ineffective assistance by failing to redact these references from the interviews. We conclude appellant's trial counsel did not provide ineffective assistance of counsel and that appellant's judgment be affirmed.
Appellant also contends this matter must be remanded so the sentencing court may exercise its discretion to strike or dismiss the firearm enhancement pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Appellant further asserts remand is required for the court to exercise its discretion to strike his five-year sentence enhancement (§ 667, subd. (a)(1)) pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). Respondent agrees, as do we, that remand is appropriate for the limited purpose of allowing the trial court to exercise its discretion under this new legislation.
Appellant also contends his federal and state constitutional right to due process was violated by the imposition of fees, assessments, and restitution fines without a court determination that appellant had the present ability to pay, primarily relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We conclude appellant's contention was forfeited, and we decline to address it on its merits.
Finally, appellant requests that we correct the abstract of judgment to delete the imposed, yet stayed, sentence for the three prior prison term enhancements, as the court had previously struck the allegations. As the matter is being remanded for resentencing, upon remand, the court shall not consider the prior prison terms when resentencing appellant, and shall ensure the amended abstract of judgment does not reflect any enhancements under section 667.5, subdivision (b).
FACTUAL BACKGROUND
Prosecution Case
Bethanie Bordeau Smith met appellant in June 2010, and spent several days with him using methamphetamine in June 2010. They would go out into a location in the country to smoke. On one of these days, she and appellant went to a gas station. A stranger, who later would be identified as Brian Morris, was at the gas station. Morris approached appellant's vehicle and told appellant the vehicle belonged to a friend of his and had been stolen. The conversation was not argumentative.
Smith had sex with appellant a couple of times; once was in the location in the country where they would smoke methamphetamine. They used a condom one of the times, but Smith did not remember which time. Smith realized she had started her period, and put a piece of tissue in her underwear. On June 10, 2010, they ended up at the gas station where they had first encountered Morris and parked when it was getting dark; Smith was seated in the front passenger seat. Smith fell asleep for a few hours, and she woke up to Morris and appellant having a conversation about going on a "road trip" to San Jose. Smith heard Morris say he would buy gas and some methamphetamine. Smith got out of the car and into the back seat. Appellant and Morris went into the gas station store. Detective Francisco Soria testified he had spoken to the store clerk, who told him that he knew Morris as a customer and that Morris told him (the store clerk) out of appellant's earshot referring to appellant, "This guy better take me where he said he was going to take me or I'm going to rip his fucking throat out." Smith said when appellant and Morris came back to the car, appellant said they could go to his nephew's house to buy some methamphetamine.
Appellant's nephew is Gregory Fisher, Jr. When Smith, Morris, and appellant arrived at Fisher's house, appellant went inside, and Morris and Smith stayed in the car. Fisher testified that at that time, he was staying with his grandmother. At approximately 3:00 or 3:30 a.m., his then girlfriend, called him to tell him appellant was at their house and needed to speak with Fisher. When appellant got on the phone, he asked Fisher where Fisher was and told Fisher that he was scared and wanted to pick Fisher up. Appellant told Fisher he had gotten into a situation and there was a guy in his car threatening his life. Appellant asked Fisher where Fisher had a weapon. Fisher told appellant where a nine-millimeter firearm was.
Smith testified that when appellant came out, he said Fisher was not home and that he had to get the methamphetamine somewhere else. They went to another house, where appellant again went inside alone and bought some methamphetamine. They then drove out to the country near some orchards.
Appellant parked the car, and Morris loaded a pipe with methamphetamine. Each person smoked from the pipe twice, and Smith was holding the pipe when appellant said he needed to use the bathroom. Appellant got out of the car, went around the back of the car and knocked on the front passenger window. Appellant told Morris, "Open the door, I need the napkins in the glove compartment." Morris opened the glove compartment and said that there were no napkins. Appellant told Morris to open the door so he could get them, and as soon as Morris opened the door, appellant put his arm around Morris, put him in a headlock, and yanked him out of the vehicle. Smith heard a gunshot. When Smith heard the gunshot, there was no one out there with them in the orchards, and there were no other cars.
Smith said appellant shut the passenger door, got in and started driving, saying something about "checking the perimeter." Appellant drove to Fisher's grandmother's house, and Fisher came out. Fisher testified this happened at approximately 4:30 or 5:00 a.m. Fisher got into appellant's front passenger seat. Fisher said Smith was in the back seat curled up in a ball with a scared look on her face. Appellant had blood on his pants, and his hand was bleeding and was wrapped in a towel. Fisher asked appellant what happened, and appellant said it "got ugly." Appellant handed Fisher the gun. Appellant asked for a change of clothes and Fisher gave him one. Fisher testified that Smith said she heard a sound and did not want to sit in the front seat because "that's where the guy was." Smith was "chanting," like she was "possessed." Appellant told Fisher there was only one bullet missing and that appellant knew "he" was dead because of the way "he" exhaled. Smith saw a hole in appellant's hand. Appellant drove Smith to a barn and a pickup truck parked beside them. Appellant told Smith "This is your ride and it's better to get out." The man in the pickup truck took Smith home.
On June 11, 2010, at approximately 5:42 a.m., the Stanislaus County Sheriff's Office responded to a 911 call wherein it was reported that a body was lying near the side of a road near a fence in a rural unincorporated area of Modesto in Stanislaus County. The body was observed to have a single gunshot wound to the back of the neck. The bullet entry was surrounded by stippling which indicated the shot was fired within inches of the deceased's body. A used condom and a white tissue with a red stain were found at the scene. A nine-millimeter shell casing which appeared to look fairly new was located within two to three feet of the body. On the fence post near the body, there were two blood droplets. The body was identified as Morris. The blood on the fence post belonged to Morris. Appellant's DNA was contained inside the condom. The tissue contained a human blood stain, and the blood belonged to Smith.
Sung-Ook Baik, M.D., a forensic pathologist, performed the autopsy of Morris. Baik said the bullet entered the back of Morris's neck. As Baik was cleaning up the entrance wound, he observed the imprint of the muzzle of the gun around the entrance of the bullet hole. Baik said this indicated the gun was in contact with the neck when it was shot. Morris would have died within 10 to 20 minutes. Morris had alcohol and methamphetamine in his system. Morris did not have any defensive wounds.
Fisher testified that he sold the gun appellant used. Fisher testified that appellant called him a month after this incident. Appellant told Fisher that Morris had been trying to hold him hostage and threatened to kill him if he did not prove to Morris he lived in San Jose. Appellant said he had to defend himself and shot Morris in self-defense. Appellant told Fisher he grabbed Morris from behind, placed his hand over Morris's mouth, and shot Morris in the back of the head. Fisher said he had heard people saying he committed the murder, and appellant told Fisher he would not let Fisher "go down" for the crime. When Fisher got arrested, appellant never came forward. Fisher testified he associated with the "Seven Trees Crips" gang.
On September 16, 2011, Sergeant Francisco Soria interviewed appellant with regard to Morris's murder. The interview was videotaped and played for the jury. Appellant told Soria in relation to the incident that "someone was trying to get at [him] over a ... car." Appellant explained he purchased a beige Nissan Maxima from a friend and that one day Morris approached him at a gas station. Morris asked appellant about the car, told him it was someone else's car, and asked to check the Vehicle Identification Number (VIN). Appellant told him no, and then "all these white dudes started coming from everywhere around there." Appellant said he then allowed Morris to check the VIN and Morris said it did not match, but that he knew it was the car.
Appellant then described to Soria a separate incident that happened at the same gas station when he had fallen asleep in his car. Morris tapped on appellant's window, and appellant could smell alcohol on him. Morris told appellant he thought appellant lived in San Jose even though appellant never told Morris he lived in San Jose. Appellant asked Morris how he knew where appellant lived, and Morris again said appellant's car was someone else's. Appellant tried to leave, and Morris told him he would give appellant gas money, but that he wanted appellant to take him to his house in San Jose. Appellant said no, and a Modesto Police Department car pulled into the parking lot and appellant tried to make eye contact. Appellant said he tried to walk towards the police, but Morris told him that would be "really ... stupid." Morris got into the passenger seat of appellant's car and told appellant to show Morris where appellant lived in San Jose or he and "[his] boys want to talk to you." Appellant told Morris to get out of his car, but Morris continued to tell appellant to take him. Appellant was nervous because Morris kept digging into his pockets. They put gas in the car, and then appellant started driving Morris. Morris asked appellant about methamphetamine, but appellant told him he did not use methamphetamine and did not want to try it. Morris said he wanted to go by his "boy's" house and get some for the ride. They made three stops; appellant assumed Morris was getting drugs. When Morris got out of the car, appellant did not leave; he smoked a cigarette.
Appellant said that Morris got killed that night while he was on top of appellant. Appellant then told Soria a woman named "Beth" was with him and had been with him the whole time. Morris directed appellant to some orchards so they could smoke methamphetamine. Appellant saw a car turn into the orchards right before appellant did. Appellant said they parked, and appellant said he had to go to the bathroom. Appellant's plan was to throw Morris out of the car, get back in the car, and drive away. Appellant went around to the passenger side to grab Morris, and they started wrestling. Appellant was on his back trying to get Morris off of him, when he heard a car door and someone say "get em." Appellant heard a "pop" and Morris "go uhh," and appellant "felt a sting." Appellant got out from under Morris, left the scene, and realized he had been shot in the hand. Appellant dropped "Beth" off and then cleaned his hand.
During the investigation, witnesses came forward and said that Fisher had been bragging about committing the murder. Fisher spoke to law enforcement on January 19, 2012, and was arrested for Morris's murder in June 2012. Fisher entered into a testimonial agreement with the prosecution and gave a second interview on July 18, 2013. The agreement provided that in exchange for Fisher's full cooperation and plea to an accessory of murder, which has a maximum term of three years, Fisher's other charges would be dropped.
Soria testified appellant was arrested because of the physical evidence at the scene, appellant's placing himself at the scene in the interview, and the subsequent interview with Fisher where he gave information about what happened before and after the homicide. Soria said the witnesses who had come forward regarding Fisher being the perpetrator gave statements inconsistent to the physical evidence. Soria said that according to appellant's statement he had at least two opportunities to flag down the police when he felt uncomfortable talking to Morris and felt Morris was being aggressive toward him. Soria stated that when Morris went into the gas station store, appellant could have left Morris behind. Soria said appellant also had an opportunity to leave Morris when they had made stops and Morris left appellant in the car. Soria stated that appellant's statement that Morris attacked him was inconsistent with the physical evidence. Soria indicated the fact appellant treated his gunshot wound himself was concerning because it indicated appellant did not want to go to the hospital because all gunshot wounds must be reported to law enforcement. Soria testified he believed appellant kept Beth out of the statement until the end because she knew what happened.
Defense Case
The defense offered evidence that a man named Ryan Davis, who had dated an ex-girlfriend of Morris's had made death threats to Morris. The witnesses did not take the threats seriously. One witness testified that Morris did not take the threats seriously either.
The defense also presented evidence of the statements made by the three individuals who told police Fisher had admitted to the murder.
Cynthia Thomas who is Fisher's mother and appellant's sister, testified that Fisher is a "one-man army wannabe gang member." He "claims to be" a Crip and has emotional problems. Thomas testified that Fisher told her he was going to lie to "make the deal happen."
Avak Albert Howsepian, M.D., Ph.D., testified as an expert in psychiatry regarding the effects that methamphetamine has on the human mind and body and traumatic experiences, what effect they have on the human mind, and the effect of lack of sleep on the human mind. Howsepian testified that methamphetamine's effect on physical abilities is that it acts like a stimulant and increases energy. Methamphetamine decreases one's ability to feel pain. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) says that agitation, aggression, and violence are common aspects of methamphetamine intoxication. Behavior under the influence of methamphetamine can often change abruptly, dramatically, and rapidly, as opposed to slowly increasing. People can be explosive on methamphetamine.
Howsepian also said methamphetamine can impair memory by impairing attention. People who experience traumatic events are more vulnerable to false memories. Sleep deprivation can result in hallucinations, but it is not a very prominent aspect of sleep deprivation. However, they are more common if someone is under the influence of methamphetamine.
PROCEDURAL BACKGROUND
A jury found appellant guilty of premediated and deliberate murder (Pen. Code, § 187, subd. (a)) and found that he had personally used a firearm in the commission of the murder (§ 12022.53, subdivision (d)). In a bifurcated court trial, the court found true allegations that appellant had suffered a prior serious felony (§ 667, subd. (a)) and a strike prior (§ 667, subd. (d)). The prosecutor moved the court to strike three prior prison term allegations (§ 667.5, subd. (b)). The court granted the request and struck the prior prison term allegations.
The court sentenced appellant in count 1 to 25 years to life, doubled to 50 years to life due to the strike prior, plus an additional 25 years to life for the firearm enhancement, plus an additional five years for the prior serious felony enhancement. The trial court also imposed and stayed one-year terms each for three prior prison terms.
The court's imposition of a sentence on appellant's prior prison term enhancements forms the basis of an issue appellant raises on appeal. Appellant and respondent agree that this was improper because the prior prison terms had been struck. We discuss this issue in Section V of this opinion.
DISCUSSION
I. Ineffective Assistance of Counsel Claim
A. Relevant Background
Appellant sought to introduce video clips from Fisher's first statement to law enforcement in order to impeach his testimony. The court commented the proposed clips made for a "puzzling and incomplete record." The People wished to introduce Fisher's second statement in order to rehabilitate his testimony. Ultimately, each recorded statement would be played for the jury in its entirety.
The trial court explained to the jury that Fisher's first statement to law enforcement was being offered by the defense as impeachment evidence, "to show that some of the things that [Fisher] has said so far on the stand or that he might testify to when he comes back are untruthful. They don't match up with what he told the detective." The trial court explained that the second interview was being offered by the prosecution to "show you that, in fact, [Fisher's] testimony on the stand is consistent with ... what his statement was to police."
During Fisher's first statement to law enforcement, he said appellant had been in the military and when he came home from military service, "he wasn't home more than a year and went to jail for attempted murder. He's been in an out of the penitentiary ever since... [¶] He went to the penitentiary when I was a kid." In his second statement, Fisher said, "[appellant] specifically told [Fisher] that [appellant] wasn't going back to the penitentiary. [¶]... [¶] My mom said that just knowing her brother and how he is that he would more likely kill himself than go back to prison."
After Fisher's statements were played, the court said out of the presence of the jury that it noted the references to "penitentiary." The court suggested to defense counsel that he should look at an instruction to address it if he considered it an issue that deserved further treatment.
Appellant's counsel initially requested the jury be instructed that: "In [Fisher's] statement to the police that was recorded and shared with you, he said [appellant] had been to prison for attempted murder. This statement is not true. In addition, you should disregard this statement and any other statements about [appellant] going to prison and not consider it in your deliberations." Appellant's counsel explained he withdrew the instruction because he decided it would be in appellant's best interest not to draw attention to the references. The court added:
"[W]e have, I think, uniformly agreed that there were things that [Fisher] has said that have proven not to be true or that he was impeached, including being
impeached by his own mother about how many things he fabricates and so forth. And at the time when that recording was played and even when there was a very brief reference, [Fisher] said something like, Yeah, well, my uncle has been to prison, you know, and even said for attempted murder or something like that. We didn't do anything in the courtroom to draw attention to that. So I didn't call for a sidebar, we didn't do anything at the time. It was just part of the version of events that [Fisher] gave, whether that was true, false, fabricated, whatever. [¶] ... [¶] It just went with no particular significance being drawn to that line. And otherwise, in [appellant's] own statement to the police, [defense counsel] redacted all the references to prison."Defense counsel then asked for the opportunity to re-redact Fisher's statement related to appellant's prison commitments if the jury requested a review of Fisher's statement. The prosecutor stated he had no objection.
The jury did not ask to review Fisher's statement to law enforcement. They retired to deliberate at 2:15 p.m. on March 3, 2016. At 3:18 p.m., the jury requested a readback of Smith's testimony. The court reporter read from 3:20 p.m. to 4:12 p.m., and the jury took its evening recess at 4:15 p.m. The court reporter continued reading Smith's testimony at 9:00 a.m. the next morning. At 10:15 a.m. the jury requested a readback of Fisher's testimony. At 11:35 a.m., the jury returned its verdict.
B. Analysis
Appellant argues that his trial counsel's failure to redact the portions of Fisher's statements to law enforcement referencing appellant having been to prison constituted ineffective assistance of counsel. To prevail on a such a claim, appellant must establish that (1) the performance of his trial counsel fell below an objective standard of reasonableness; and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Anderson (2001) 25 Cal.4th 543, 569.)
We need not decide whether counsel's performance was deficient because appellant has not carried his burden of showing prejudice resulted from the error. As the United States Supreme Court has observed, the prejudice component of ineffective assistance focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 372.) A reviewing court will find prejudice when a defendant demonstrates a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610.)
Appellant concedes counsel's purported error would not have affected the jury's verdict as to guilt. Appellant states in his briefing, "Based on its verdict, the jury did not believe appellant's third party culpability story because of percipient witness [Smith's] compelling testimony, which the court noted at sentencing. Rather, appellant contends he was prejudiced because it was reasonably probable the jury could have concluded appellant was only guilty of second degree murder because appellant's drug intoxication could cause appellant to hallucinate that Morris was a lethal threat to him had Fisher's comments about appellant's prison time not come in. We disagree. We cannot say there is a reasonable probability that but for the error, the outcome of the trial would have been different.
First, the comments appellant complains of comprised a very small portion not only of the whole trial, but of Fisher's statements. The evidence portion of appellant's trial took place over a period of 14 days. The jury heard from 26 witnesses. The reporter's transcript of the evidence, jury instructions, and closing arguments comprised almost 2,000 pages. Fisher's testimony alone comprised approximately 168 pages. The recordings of Fisher's statements to law enforcement totaled approximately eight hours. The brief references to appellant being in prison were made in passing and were insignificant in context of the totality of the evidence.
The brevity of the references is of particular note in light of Fisher's credibility being challenged throughout the trial. At several moments, as the trial court pointed out, many of his claims were contradicted by other evidence. Fisher said he associated with a gang, but his own mother testified that Fisher merely "claims to be" a Crip. She also testified that Fisher told her he was planning to lie to make his plea deal happen. The versions of events he allegedly told others about his committing the crime did not match up with the physical evidence at the scene, leading the police to discount them. During one of Fisher's statements to law enforcement, Fisher said he had a cousin of his call appellant to see what story he would tell about the murder, and that appellant told a story different than what he had told Fisher. That cousin testified on behalf of the defense and said no such event ever occurred and that he has never talked to appellant about the crime. Fisher was extensively cross-examined by defense counsel regarding his gang affiliation, his statements to law enforcement, his alleged admission of committing the crime and his testimonial agreement, including pending charges against him of rape and kidnapping. In addition, the references came in through statements that the jury was instructed to use to help them determine Fisher's credibility.
Importantly, the references to appellant having been imprisoned were never mentioned again. No other references to appellant's criminal history were made. As the court pointed out, no attention was drawn to the references in the presence of the jury. The prosecutor did not mention the references in his closing argument.
Despite appellant's claims on appeal, the evidence that appellant premeditated the murder was ample. Appellant went to Fisher's house to obtain a firearm, took Morris out to a remote location he had been to before, got out of the vehicle with the firearm on him, walked around to the other side of the vehicle, tricked Morris into opening the door, and immediately shot him. Appellant argues that he had no motive for the murder, but in his own statement he described having been accosted by Morris on a previous occasion. Finally, the "execution style" of the killing by placing the muzzle of the firearm against or within inches of the back of Morris's neck is indicative of premeditation.
Though the jury was instructed that hallucination and voluntary intoxication could be considered in deciding whether appellant acted with deliberation and premeditation (CALCRIM Nos. 627, 625) the evidence supporting the application of these instructions was very weak. Appellant points to testimony that Howsepian said methamphetamine intoxication can cause paranoia and hearing and seeing things that are not there, and that methamphetamine use could cause people to become agitated and potentially violent. Appellant's argument is not well taken.
Howsepian did not offer any testimony about how hallucinations under methamphetamine could impair someone's ability to premediate or deliberate. No evidence was offered that appellant was suffering from hallucinations. There was also no testimony about whether the "agitation" caused by methamphetamine could affect someone's ability to premediate or deliberate a murder. Any application of this testimony to appellant was undermined by the evidence that appellant did premeditate and deliberate the murder.
Further, the defense did not argue appellant's methamphetamine use would have affected his ability to deliberate or premediate the murder. Rather, defense counsel cited Howsepian's testimony to (1) argue Smith was not credible because of her methamphetamine use and the effect methamphetamine has on memory and false memories; and (2) to argue that Morris was an aggressor because of his methamphetamine use. Defense counsel never suggested that Howsepian's testimony should be applied to appellant. Rather, appellant's defense was that he "did not commit this crime." Defense counsel stated in his closing argument:
"[O]ur position is [appellant] didn't do anything. He didn't kill [Morris]. He's not liable for this crime, and he's certainly not guilty for murder, or anything for that matter. [¶] So I'm not here to argue to you, oh you should find him guilty of voluntary manslaughter. No, that's not the position. Our position is not guilty of everything because he didn't do it."Defense counsel said the jury was being given "standard jury instructions" that "maybe ... will guide you and help you, but I'm telling you our position is not guilty across the board. Not guilty of murder, not guilty of first degree, second degree, not guilty of manslaughter, because he didn't do it."
It is not reasonably probable the jury would have convicted appellant of a lesser degree of murder had it not heard brief references to appellant being in prison.
The cases appellant relies on do not persuade us to reach a different conclusion. Appellant first argues that People v. Guizar (1986) 180 Cal.App.3d 487 (Guizar) is on point. In Guizar, the defendant killed a person he claimed to be afraid of at a bar. (Id. at p. 489.) He admitted to the killing, so the sole issue at trial was his degree of responsibility for the crime. (Id. at p. 490.) The victim's nephew was an eyewitness to the murder but did not report the crime. When police questioned him, he claimed he did not see the incident. Five days later, the police learned the nephew had information, and he gave a tape-recorded statement to police. The transcript included the statement that he had heard someone say the defendant had " 'committed some murders before.' " (Ibid.) No evidence of the defendant's criminal history was offered at trial. The jury was instructed not to consider this part of the witness's statement for the truth of the matter asserted, but that it could consider it to establish the witness's state of mind at the time he described the crime to police several days after the shooting. (Ibid.) During closing argument, the prosecutor mentioned that the witness believed the defendant had committed other murders, suggesting that the jury should infer that this was one reason why he did not immediately report the shooting. (Ibid.)
The Guizar court stated, "[I]t is inconceivable to us that defense counsel did not object to the introduction of this portion of the tape and transcript [referencing the defendant committing other murders] on the ground that it was more prejudicial than probative" and that the admission of this portion of the tape was "plainly error." (Guizar, supra, 180 Cal.App.3d at p. 492.) The appellate court held the error was not harmless because "[t]he level of alcohol consumed by the parties, the fact that [the defendant] witnessed [the victim's earlier fight with someone else], [the defendant's] testimony that he feared the victim, and [the witness's] five-day delay in explaining his version of the shooting make it reasonably probable that a jury whose deliberations were not tainted by speculation about whether [the defendant] had, in fact, committed prior murders, could have found [the defendant] guilty of less than first degree murder." (Ibid.)
Guizar is distinguishable. There, the trial court instructed the jury they were permitted to consider the statements about the defendant committing other murders as state of mind evidence, and the prosecutor encouraged the jury to do so. In the present case, the statements were not given any attention by the court or any party.
Appellant also cites the habeas proceeding Sager v. Maass (1995) 907 F.Supp. 1412 (Sager) in support of his argument. In Sager, the United States District Court, Oregon, affirmed by the Ninth Circuit in Sager v. Maass (9th. Cir. 1996) 84 F.3d 1212, held that trial counsel was deficient inter alia because it did not seek to redact a 911 call which contained "irrelevant but inflammatory references to petitioner as 'Nazi Red' and well known to the police." (Sager, supra, 907 F.Supp. at p. 1421.) Sager is distinguishable because in that case, the verdict was 10-2, which the district court noted showed a weakness in the prosecution's case. (Ibid.) Also in that case, the court noted that counsel's "most egregious error was introducing [the victim's] entire victim impact statement into evidence. This blunder alone fatally tainted the trial." (Id. at p. 1419.) In the present case, the short time the jury deliberated indicates the prosecution's case was strong. Also, in Sager, there was another error which required reversal independent of the 911 call error. It is not clear whether the 911 call error alone would have required reversal, and therefore the case does not help appellant in determining whether he was prejudiced.
In Crotts v. Smith (9th Cir. 1996) 73 F.3d 861, another habeas proceeding cited by appellant, the court found the petitioner's trial counsel's performance deficient where counsel failed to object to the prosecutor's adducing testimony that the petitioner told the witness he " 'had just done ten years for killing a policeman.' " (Id. at p. 864.) Crotts is also distinguishable because the jury in that case had been informed that the petitioner was on parole for an undisclosed felony. This was significant to the Ninth Circuit's prejudice analysis because the jury likely came to the "obvious, but mistaken inference that [the petitioner] had been convicted of killing a police officer." (Id. at p. 867.) Here, there was no evidence presented that appellant had any criminal history, and therefore, Fisher's references were not improperly validated.
Finally, appellant cites People v. Robertson (1982) 33 Cal.3d 21. In Robertson, the California Supreme Court found trial counsel's failure to object to a witness's testimony that the defendant told her he had killed two other women and that they hadn't found him yet, in a murder prosecution, fell under an objective standard of reasonableness. (Id. at p. 40.) The Robertson court however found reversal was not warranted because "the evidence was so overwhelming as to both guilt and special circumstances." (Id. at p. 42.) Robertson's analysis supports our position. Here, Smith's first-hand testimony was noted by the trial court to have been "compelling" and "incredibly persuasive," and as discussed, appellant's intoxication and hallucination defense was weak and was not even presented to the jury.
Appellant's trial counsel's failure to redact references to appellant being in prison from Fisher's statements to law enforcement did not prejudice appellant and thus did not constitute ineffective assistance of counsel.
II. Senate Bill 620
At the time of sentencing in this matter, the trial court was required to impose additional prison terms for firearm enhancements found true under section 12022.53. (Former § 12022.53, subd. (d).) On October 11, 2017, however, the Governor approved Senate Bill 620, which amended, in part, section 12022.53. (Stats. 2017, ch. 682, § 2.) A trial court now has discretion to strike or dismiss these firearm enhancements. (§ 12022.53, subd. (h).)
The parties agree, as do we, that these amendments apply retroactively to appellant because his case is not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) The parties also agree, as do we, that remand is appropriate so the trial court may exercise its new sentencing discretion. (See id. at p. 1091.) Accordingly, we remand this matter for that limited issue. We take no position as to how the trial court should exercise its discretion.
III. Senate Bill 1393
At the time of appellant's sentencing in this matter, the trial court was required to impose an additional five-year prison term based on his prior serious felony conviction. (Former § 667, subd. (a)(1).) On September 30, 2018, however, the Governor signed Senate Bill 1393 which amended sections 667 and 1385 to provide sentencing courts with discretion to strike or dismiss this enhancement. (Stats. 2018, ch. 1013, § 1.)
The parties agree, as do we, that this amendment applies retroactively to appellant. (People v. Sexton (2019) 37 Cal.App.5th 457, 473.) The parties also agree, as do we, that remand is appropriate so the trial court may exercise its new sentencing discretion. (Ibid.) Accordingly, we remand this matter for that limited issue. We take no position as to how the trial court should exercise its discretion.
IV. Ability to Pay Fines and Fees
Appellant challenges the imposition of the assessments imposed against him under section 1465.8, subdivision (a)(1), and Government Code section 70373, subdivision (a)(1). Appellant also challenges the restitution fine imposed against him under section 1202.4, subdivision (b)(1). Appellant's claim is based primarily on Dueñas, supra, 30 Cal.App.5th 1157.
In Dueñas, Division Seven of the Second Appellate District held that the imposition of the court operations assessment (§ 1465.8, subd. (a)(1)) and the criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) without a determination of the defendant's ability to pay them violates the constitutional guarantee of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that if the defendant has demonstrated an inability to pay the restitution fine (§ 1202.4, subd. (b)(1)), the trial court must stay execution of the fine until the People prove the defendant has gained the ability to pay. (Dueñas, at p. 1164.)
The California Supreme Court is now considering (1) whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and (2) if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, rev. granted Nov. 13, 2019, S257844.)
We conclude the issue is forfeited. Here, the court imposed the statutory maximum restitution fine without objection. Pursuant to section 1202.4, subdivision (d), the court is permitted to consider the defendant's inability to pay, among other factors, in setting the restitution fine above the minimum. (§ 1202.4, subd. (d).) By failing to object to the imposition of the maximum fine, appellant forfeited any ability to pay argument with regard to the restitution fee. It follows that since appellant did not complain of the $10,000 restitution fine, he would not complain of the relatively nominal $40 and $30 assessments imposed pursuant to section 1465.8, subdivision (a)(1) and Government Code section 70373, subdivision (a)(1), respectively. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Because appellant has forfeited the issue, we decline to address its merits.
V. Sentencing/Abstract of Judgment Error
The trial court struck the three prior prison term allegations under section 667.5, subdivision (b), but at sentencing the trial court stated it had found true the allegations and imposed and stayed one-year sentences on each of the priors. The abstract of judgment reflects the court's pronouncement at sentencing. The parties agree, as do we, the court's imposition of the sentences on the prior prison term allegations it had previously stricken was in error. Upon remand, the court shall not consider the prior prison terms when resentencing appellant. The court shall ensure that the amended abstract of judgment does not reflect any enhancements under section 667.5, subdivision (b).
We note that while this appeal was pending, the Legislature passed Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) amending section 667.5, subdivision (b) eliminating prior prison term enhancements except in cases involving sexually violent offenses.
DISPOSITION
The matter is remanded to the trial court for resentencing. Based on the prosecutor's motion, which was granted, the trial court shall strike the three prior prison term allegations (§ 667.5, subd. (b)). The trial court shall exercise its discretion whether to strike or dismiss the firearm enhancement pursuant to section 12022.53, subdivision (h). The trial court shall also exercise its discretion whether to strike or dismiss the prior serious felony enhancement under section 667, subdivision (a)(1). The court shall forward an amended abstract of judgment to the appropriate authorities. In all other respects, appellant's judgment is affirmed.
LEVY, Acting P.J. WE CONCUR: POOCHIGIAN, J. MEEHAN, J.