Opinion
D073713
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BRYSON RASHAD JOHNSON et al., Defendants and Appellants.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Michael Bryson Rashad Johnson. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant Cameron Stepney. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV1600164) APPEALS from judgments of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed in part; vacated in part; remanded with directions. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Michael Bryson Rashad Johnson. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant Cameron Stepney. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Michael Bryson Rashad Johnson and Cameron Joron Stepney of two counts each of second degree robbery. (Pen. Code, § 211.) The jury found, as to each count, that they personally used firearms in the commission of the offense. (Id., § 12022.53, subd. (b)). The jury also convicted Johnson of assault with a deadly weapon, other than a firearm, against a peace officer (id., § 245, subd. (c)) and reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a)).
A third man, Kwame Michion Simmons, was charged based on his involvement in the same offenses. He pleaded no contest to second degree robbery and was sentenced to three years in prison. He did not participate in the trial.
The trial court sentenced Johnson to a determinate term of 20 years 8 months in prison, consisting of the upper term of 5 years for the first robbery conviction, 10 years for the corresponding firearm enhancement, one-third of the middle term of 3 years for the second robbery conviction (or 1 year), one-third of the 10-year term for the second firearm enhancement (or 3 years 4 months), and one-third of the middle term of 4 years for the assault conviction (or 1 year 4 months). It also sentenced Johnson to the middle term of 2 years, to run concurrently, for the evading conviction. The court sentenced Stepney to a determinate term of 17 years 4 months in prison, consisting of the middle term of 3 years for the first robbery conviction, 10 years for the corresponding firearm enhancement, one-third of the middle term of 3 years for the second robbery conviction (or 1 year), and one-third of the 10-year term for the second firearm enhancement (or 3 years 4 months).
Johnson and Stepney appeal. Johnson contends (1) the trial court erred by denying his Batson/Wheeler motion challenging the prosecution's use of a peremptory challenge against a Black juror (see Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)); (2) the court erred by instructing the jury with CALCRIM No. 2181 that committing three or more specified traffic violations constitutes a willful or wanton disregard for the safety of persons or property for purposes of the evading charge under Vehicle Code section 2800.2; (3) the court's admission of certain text messages between Johnson and Stepney violated his right to confront and cross-examine witnesses under the Confrontation Clause of the Sixth Amendment to the United States Constitution; (4) the court erred by granting a three-week continuance during trial for medical reasons and by denying Johnson's related motion for mistrial; (5) the court erred by instructing the jury with CALCRIM No. 372 regarding flight; (6) the court erred by not staying Johnson's sentence for assault under Penal Code section 654; (7) Johnson's sentence should be vacated to allow the trial court to exercise its newly-effective discretion to strike the firearm enhancements found by the jury; and (8) the matter should be remanded to allow the parties to make a record for purposes of any future youth offender parole hearing under a newly-effective statute allowing offenders of Johnson's age to benefit from such hearings. Stepney joins in Johnson's Batson/Wheeler argument and also contends his sentence should be vacated so the trial court can exercise its discretion to strike the firearm enhancements.
The Attorney General concedes that the matter should be remanded to allow the trial court to exercise its discretion to strike the firearm enhancements and, for Johnson, to make a record for any future youth offender parole hearing. We accept these concessions. However, for reasons we will explain, we conclude that defendants' remaining contentions are unpersuasive. We will therefore vacate defendants' sentences and remand for resentencing but affirm the judgments in all other respects.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On January 13, 2016, around 6:00 p.m., a pharmacist and a technician were working at a pharmacy in Fontana, California. Three men, later identified as Johnson, Stepney, and Simmons, entered the pharmacy. They had surgical masks over their faces. Stepney went behind the counter and pointed a handgun at the technician's face. Johnson stood on the other side of the counter with a handgun drawn as well. They told the pharmacist and the technician to get on the floor. Stepney asked the pharmacist where certain prescription drugs were stored, including Xanax and the opioid Norco. The pharmacist showed Stepney, who took the drugs and passed them to Johnson.
Johnson, Stepney, and Simmons left the pharmacy. A plainclothes police officer, who happened to be in the area for an unrelated operation, saw them running past his vehicle. They were still wearing their surgical masks. The officer contacted a police helicopter, which was in the area for the same operation. It observed the men run to a nearby Mercedes and drive away. Based on the helicopter's observations, a motorcycle officer located the men driving on the freeway and followed them.
Another police officer, driving a police sport utility vehicle (SUV) equipped with emergency lights and sirens, joined the chase soon afterwards. He activated his lights and siren, as did the motorcycle officer, but the Mercedes did not stop. It exited the freeway, went around cars stopped at a red light, turned to face the police officer in the SUV, and accelerated toward him. Although the police officer tried to avoid the Mercedes, it struck his SUV and caused him to collide with a light pole. The police officer suffered sprains in both wrists and pain in his shoulder and lower back. He subsequently learned that the Mercedes had hit another car near the intersection.
The men in the Mercedes drove away, with the motorcycle officer still following them. Eventually another police officer started following the men as well. He also activated the lights and sirens on his vehicle. The Mercedes drove through residential areas, far in excess of the speed limit, and ran several red lights and stop signs. Other drivers had to swerve off the road to avoid a collision. At one point, the Mercedes hit a dip in the road and briefly became airborne.
The men eventually crashed into a light pole themselves, and their Mercedes came to rest on a nearby sidewalk. Johnson, Stepney, and Simmons got out of the car and ran away, with police officers on foot in pursuit. The men threw various items away as they ran. Stepney and Simmons were apprehended, but Johnson escaped.
At the scene of the crash, police officers recovered various pill bottles, a surgical mask, and a handgun registered to Stepney. Police later discovered that the Mercedes was registered to Johnson, and the police officer involved in the crash identified Johnson as the driver of the Mercedes. Johnson was eventually arrested as well.
During their investigation, police officers recovered a number of text messages from Stepney's cell phone. Two days before the robbery, an unknown person texted Stepney, "What's up with the norco my nigga." One day before the robbery, Stepney texted with a person identified as "Bryson" (one of Johnson's middle names). Bryson said, "Wussgood we still on?" Stepney replied, "I don't have wheels. I wanna give it a day though just in case we did spook them last night. Unless you wanna drive." Bryson agreed, "Yeah I feel that, makes sense. Will give it another day." The following day, the day of the robbery, Bryson texted Stepney, "Yeah, what time you tryna run it?" Stepney replied, "5:30" and "No later." Stepney then texted, "I'm just waitin on the wheels & I'm that way." Bryson said, "Yup hit me." At 5:28 p.m., Stepney texted, "Omw" (i.e., "on my way"). Bryson replied, "Yup I'm at the tilt."
At trial, Johnson's counsel argued he was not involved. He presented evidence that, the day after the robbery, Johnson called police and reported that his Mercedes had been stolen at 3:00 p.m. the previous day. He also told police he had lost his cell phone. When police officers came to meet with Johnson, he was not there. When the police tried to contact him again, Johnson said he had to go out of town and could not meet with them. Stepney's counsel primarily argued that the prosecution did not prove he went into the pharmacy. Instead, his counsel suggested that he waited in the Mercedes during the robbery.
DISCUSSION
I. Batson/Wheeler Motion
A
Johnson and Stepney contend the trial court erred by denying their Batson/Wheeler motion after the prosecution used a peremptory challenge against a Black juror. Johnson and Stepney are both Black. The juror, A., was excused. One Black juror remained on the jury.
In voir dire, A. explained that she was a social worker for the County of Los Angeles. She had been a social worker for 23 years. In her current position, she worked with adults that were looking for employment to help them find a job. Under questioning by defense counsel, A. said she never tired of being compassionate and helping people. But she said she would not let people "cross boundaries" if it would "compromise the policies and procedures in order to do that." The prosecutor asked for an example where A. had to deal with someone who had crossed a boundary. A. responded that she discusses her clients' strengths and weaknesses with them and encourages them to do better. She said that she tries to find solutions, but the solution cannot involve "a way for [the client] to get out of doing something." Later, the prosecutor asked whether A. had ever said she could not help someone because they were not willing to help themselves. She said she had. She mentioned that there are times when someone is just playing games and she has to "make a decision based on that."
A. had a brother who was a lawyer. She said "he does family law, car accidents, and, you know, stuff like that. That's what I know." She did not believe he practiced criminal law, but she said he did not discuss his practice with her. A. served on two prior juries. She expressed appreciation for the criminal jury system and described jury service as a privilege.
In the 1980s, A. had been the victim of a crime. She was robbed at an ATM. A man pointed something that looked like a gun at A. and asked her for money. A. went to look at a lineup, but she did not recognize anyone. The police did not contact her again. A. denied having any concerns about whether she could be fair to the defendants. She said, "[T]hat kind of stuff does not bother me. I wasn't afraid." She explained, "I don't see any reason for me to hold my personal matter against somebody else." Under questioning by the prosecutor, A. said she did not feel bad that the police did not follow up with her. She explained, "I just thought, okay, maybe that person needed my money better [sic]."
The prosecutor exercised a peremptory challenge against A., and she was excused. The defense made a Batson/Wheeler motion, which the court heard outside the presence of the jury. The court noted that another Black juror remained on the jury, and it expressed skepticism that the defense could meet its burden of showing systematic exclusion of Black jurors based on one challenge. Johnson's counsel responded that the exclusion of one juror can create equal protection concerns. Stepney's counsel argued that A.'s answers were not different from any other jurors' and did not justify exclusion.
The court determined that the defense had not made a prima facie showing of impermissible group discrimination. But it invited the prosecutor to state her reasons for exercising the peremptory challenge against A. to facilitate appellate review. The prosecutor stated, "For purposes of appellate review, I excluded her on the basis of her occupation, the fact that she has a family member who is also a lawyer, that she's not sure if he has any criminal history or ability to do that. More concerning was her comments about the fact that she doesn't get tired of helping, that she has given people a multitude of chances on things, and I didn't get an answer about a specific situation where she said 'I had to call it at that point.' But for the most part, the family member that is a lawyer."
The court noted that it had routinely seen prosecutors exercise peremptory challenges against social workers because "they are very compassionate people and it's very difficult for them to consider whether or not a person committed a crime and find them guilty then worry about penalty or punishment in the future." The court reiterated that it did not believe the defense had made a prima facie showing, but "in regards to [the prosecutor's] statements I'll indicate that I believe that the race neutral explanations were credible that were indicated by [the prosecutor] to the court, so the Batson/Wheeler motion is denied."
Johnson's counsel objected. He argued that the prosecutor's reasons had focused on A.'s connection to an attorney, rather than her occupation as a social worker, and that A. had said there were limits to her compassion in any event. The court again denied Johnson's motion.
B
"Both the United States and California Constitutions prohibit discriminatory use of peremptory strikes. [Citation.] To assess whether such prohibited discrimination has occurred, our inquiry under Batson/Wheeler follows three distinct, familiar steps. First, the party objecting to the strike must establish a prima facie case by showing facts sufficient to support an inference of discriminatory purpose. [Citation.] Second, if the objector succeeds in establishing a prima facie case, the burden shifts to the proponent of the strike to offer a permissible, nonbiased justification for the strike. [Citation.] Finally, if the proponent does offer a nonbiased justification, the trial court must decide whether that justification is genuine or instead whether impermissible discrimination in fact motivated the strike." (People v. Reed (2018) 4 Cal.5th 989, 999.)
Johnson argues the trial court erred by not making a prima facie finding of group discrimination, by not properly conducting a third-step inquiry, and by finding that the prosecutor's race-neutral justifications for excusing A. were genuine. We will assume, without deciding, that the court erred by not making a prima facie finding of group discrimination. For reasons we will explain, however, we conclude the court properly conducted a third-step inquiry and the evidence supports its finding that the prosecutor's justification was genuine. It did not err by denying defendants' Batson/Wheeler motion.
We expressly do not hold that the trial court's first-step finding was mooted by its third-step finding. (See People v. Scott (2015) 61 Cal.4th 363, 389, 393.) Rather, in assuming first-step error, we exercise our discretion to affirm the Batson/Wheeler order on alternative, third-step grounds. (See, e.g., People v. Sivongxxay (2017) 3 Cal.5th 151, 193 [assuming error but concluding any error was harmless]; People v. Loy (2011) 52 Cal.4th 46, 66 [same; "Rather than decide this difficult question, we will assume the court erred . . . ."].)
Under the third Batson/Wheeler step, "the trial court must decide whether the movant has proven purposeful discrimination. [Citation.] In order to prevail, the movant must show it was ' "more likely than not that the challenge was improperly motivated." ' [Citation.] This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, ' "among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." ' [Citation.] To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic . . . may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159 (Gutierrez).)
" 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' " [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' " (People v. Winbush (2017) 2 Cal.5th 402, 434 (Winbush).)
"What courts should not do is substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual. '[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. . . . If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.' " (Gutierrez, supra, 2 Cal.5th at p. 1159.)
C
As an initial matter, we reject defendants' claim that the trial court did not conduct an adequate third-step inquiry. A trial court must make a " 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' " (Gutierrez, supra, 2 Cal.5th at p. 1159.) Here, the court made such an effort. It did not perfunctorily deny defendants' Batson/Wheeler motion. It held a hearing on the record outside the presence of the prospective jurors to consider defendants' arguments. In response to the court's inquiry, the prosecutor identified A.'s occupation (social work), her brother's occupation (law), and her personality (compassionate and forgiving) as race-neutral reasons for striking A. The court noted that prosecutors commonly exercise peremptory challenges against social workers because of their compassionate nature. It then expressly stated that the prosecution's reasons for striking A. were credible. It heard additional argument from Johnson's counsel regarding the third-step inquiry and again denied the motion. It is apparent from the record that the trial court made a sincere and reasoned effort to evaluate the prosecutor's stated reasons. The court's finding is therefore entitled to deference. (See Winbush, supra, 2 Cal.5th at p. 434.)
Johnson points out that the trial court did not ask any questions of the prosecutor to assess the credibility of her stated reasons for striking A. But such questions are not required where the relevance of the prosecutor's reasons is self-evident. "Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication." (Gutierrez, supra, 2 Cal.5th at p. 1171.) The reasons why the prosecutor may not want a prospective juror who is a social worker, who has a compassionate and forgiving personality, and who has close connection to the legal profession are all self-evident. The trial court was not required to further scrutinize these reasons in order for its evaluation to be sincere and reasoned. (See People v. Smith (2018) 4 Cal.5th 1134, 1162 (Smith).)
In his reply brief, Stepney argues that the trial court's comments, which focused on A.'s employment as a social worker, improperly ignored the prosecutor's other stated reasons. "In assessing credibility at the third stage of a Batson/Wheeler decision, trial courts should attempt to evaluate the attorney's statement of reasons as a whole rather than focus exclusively on one or two of the reasons offered." (Smith, supra, 4 Cal.5th at p. 1158.) However, the fact that a trial court's comments do not mention each proffered ground does not mean the trial court has not assessed the reasons as a whole. "A sincere and reasoned evaluation of the prosecutor's stated reasons does not, in every circumstance, require the court to make detailed comments on every such reason." (Ibid.) Here, although the court's detailed comments in the third step focused on A.'s employment, the record of the hearing as a whole shows the court properly considered the prosecutor's credibility and the objections of defense counsel. The voir dire, the reasons given by the prosecutor, and the position of defense counsel were not complicated. In its ruling, the court explicitly found the prosecutor's "explanations" credible. Its ruling was not limited to a singular explanation. Moreover, Johnson's counsel specifically raised the prosecutor's other explanations in his third-step argument, and the trial court still denied the motion. Under these circumstances, the trial court need not have provided an exhaustive explanation of its reasoning. " ' "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings." ' " (People v. Mai (2013) 57 Cal.4th 986, 1054 (Mai).) As we will explain, both of these conditions are satisfied here. The record therefore fails to support defendants' claim that the trial court did not engage in a sincere and reasoned evaluation of the prosecutor's reasons for challenging A.
Even if we concluded that the trial court did not perform an adequate third-step inquiry, and its finding was not entitled to deference, we would reach the same conclusion on de novo review as the trial court did. We reject Johnson's argument that the record is inadequate to evaluate the prosecution's stated reasons or reach a conclusion regarding discriminatory intent. (Cf. Gutierrez, supra, 2 Cal.5th at pp. 1171-1172.)
D
On the merits, the evidence supports the trial court's finding that the prosecutor's stated reasons were genuine and the peremptory strike was not motivated by impermissible group discrimination. "At the third step of the Batson/Wheeler analysis, the trial court evaluates the credibility of the prosecutor's neutral explanation. Credibility may be gauged by examining factors including but not limited to ' " 'the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' " ' " (Gutierrez, supra, 2 Cal.5th at p. 1168.)
The prosecutor's stated reasons were supported by the record. A. was a social worker, her comments reflected a compassionate and forgiving personality, she had difficulty identifying a specific situation where she had refused to give a client another chance, her brother was an attorney, and A. could not be sure his practice did not involve criminal law. Johnson contends the record is clear that A.'s brother did not practice criminal law and the prosecutor's stated reasons misrepresented the record. We disagree. A. repeatedly cautioned that her description of his practice was based on her own knowledge and he did not discuss his practice with her. The court could therefore reasonably find that the prosecutor was being sincere when she said A. was "not sure if he has any criminal history or ability to do that." Johnson's reliance on People v. Silva (2001) 25 Cal.4th 345, 386, where our Supreme Court concluded the prosecutor's reasons were unsupported by the record, is unavailing.
Even if the prosecutor overstated A.'s uncertainty regarding her brother's practice, Johnson has not shown the court's order should be reversed. " '[T]he defendant's burden at the third stage of a Wheeler/Batson hearing is to show the prosecutor excused prospective jurors for discriminatory reasons [citation], not merely that some of the nondiscriminatory reasons offered by the prosecutor are not supported by the record.' " (Mai, supra, 57 Cal.4th at p. 1049.) For the reasons we explain, defendants have not met their burden in this regard.
The prosecutor's reasons also had some basis in accepted trial strategy. A prosecutor may rely on a prospective juror's employment in social work or another caregiving field to strike the juror. (See, e.g., Mai, supra, 57 Cal.4th at p. 1053 ["The prosecutor's expressed reservation about having social workers on the jury was race neutral. It also had ' " 'some basis in accepted trial strategy' " ' [citation] insofar as it stemmed from a concern about the general attitudes and philosophies persons in that profession might harbor."]; People v. Perez (1996) 48 Cal.App.4th 1310, 1315.) The prosecutor here could likewise rely on A.'s compassionate and forgiving personality and her close connection to the legal profession as grounds to strike her. (See Gutierrez, supra, 2 Cal.5th at p. 1171 ["[A] peremptory challenge may be based on a broad range of factors indicative of juror partiality, even those which are ' "apparently trivial" ' or ' "highly speculative." ' "].) We disagree with Johnson's claim that the prosecutor's stated reasons were "little more than a translucent veneer designed to disguise the illicit stereotyping" of A. based on her race.
Johnson argues that the prosecutor's discriminatory intent is shown by a comparative juror analysis between A. and several non-Black jurors whom the prosecutor did not challenge. "When a court undertakes comparative juror analysis, it engages in a comparison between, on the one hand, a challenged panelist, and on the other hand, similarly situated but unchallenged panelists who are not members of the challenged panelist's protected group." (Gutierrez, supra, 2 Cal.5th at p. 1173.) Our Supreme Court has explained that " '[c]omparative juror analysis is a form of circumstantial evidence' [citation] courts can use to determine the legitimacy of a party's explanation for exercising a peremptory challenge, although such evidence may not alone be determinative of that question [citation], can be misleading, especially when not raised at trial [citation], and has inherent limitations given the '[m]yriad subtle nuances' of a person's demeanor that might communicate meaning to an attorney considering a challenge [citation]." (People v. Mills (2010) 48 Cal.4th 158, 177; accord, Winbush, supra, 2 Cal.5th at p. 442.)
Johnson points out that several other prospective jurors worked in fields that could be characterized as caregiving, including a special education aide, a stay-at-home mother involved in charity work, and an administrative secretary who had a degree in nursing and worked part-time as a health and fitness coach. Even assuming these jurors are employed or otherwise involved in caregiving fields, Johnson's argument fails because discriminatory intent cannot be shown based on a single similarity. "Pretext is established . . . when the compared jurors have expressed 'a substantially similar combination of responses,' in all material respects, to the jurors excused. [Citation.] Although jurors need not be completely identical for a comparison to be probative [citation], 'they must be materially similar in the respects significant to the prosecutor's stated basis for the challenge.' " (Winbush, supra, 2 Cal.5th at p. 443.) A.'s specific occupation and her personality traits, among other things, sufficiently distinguish her from the prospective jurors Johnson identifies such that no reasonable inference of discrimination may be drawn from the comparison.
In sum, the evidence supports the trial court's finding that the prosecutor was not motivated by impermissible group bias when she challenged A. We therefore reject Johnson's contention, joined by Stepney, that the court erred by denying their Batson/Wheeler motion.
II. CALCRIM No. 2181
Johnson contends that CALCRIM No. 2181, which defines the offense of reckless driving while evading a peace officer under Vehicle Code section 2800.2 (section 2800.2), contains an improper mandatory presumption. Under the statute, "[i]f a person flees or attempts to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property," the person has committed the crime of reckless driving while evading a peace officer. (§ 2800.2, subd. (a).) The statute further provides, "For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count . . . occur, or damage to property occurs." (§ 2800.2, subd. (b).)
The version of CALCRIM No. 2181 used by the court reflects the statute's definition of "willful and wanton disregard for the safety of persons or property." In relevant part, the court's instruction provided, "Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point."
Johnson contends that CALCRIM No. 2181 reflects an improper mandatory presumption. To determine whether a presumption is mandatory, "courts should ask . . . whether the specific instruction, both alone and in the context of the overall charge, could have been understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts." (Carella v. California (1989) 491 U.S. 263, 265.) "Because a mandatory rebuttable presumption 'tells the trier of fact that he or they must find the elemental fact upon proof of the basic fact, at least until the defendant has come forward with some evidence to rebut the presumed connection between the two facts,' it is a 'troublesome' evidentiary device in a criminal case since the prosecution bears the burden of establishing guilt beyond a reasonable doubt." (People v. McCall (2004) 32 Cal.4th 175, 183 (McCall).)
However, where a jury instruction requires a trier of fact to make a finding based on certain predicate facts, and that finding cannot be rebutted, such a presumption is not mandatory but conclusive. " '[A] conclusive or indisputable presumption is entirely different from the ordinary rebuttable presumption: [N]o evidence may be received to contradict it. Hence, it is more accurately described as a rule of substantive law rather than of evidence.' " (McCall, supra, 32 Cal.4th at p. 185.) Conclusive presumptions, as rules of substantive law, do not raise the same constitutional concerns as mandatory presumptions. (Id. at pp. 185-186.)
While recognizing that the phrase "conclusive presumption" is widely used, our Supreme Court has criticized it because it incorrectly implies a kinship with improper mandatory presumptions: " 'In strictness there cannot be such a thing as a "conclusive presumption." Wherever from one fact another is said to be conclusively presumed, in the sense the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that where the first fact is shown to exist, the second fact's existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence.' " (McCall, supra, 32 Cal.4th at p. 185.)
As our Supreme Court has recognized, in another context, section 2800.2, subdivision (b) "defines the term 'willful or wanton disregard for the safety of persons or property,' as used in subdivision (a), to include any flight from an officer during which the motorist commits three traffic violations that are assigned a 'point count' . . . or which results in 'damage to property.' " (People v. Howard (2005) 34 Cal.4th 1129, 1137.) The fact that the statute defines an element of the offense to include certain conduct shows that they are legal equivalents, and the principle embodied by CALCRIM No. 2181 is a rule of substantive law and not an improper mandatory presumption. (See McCall, supra, 32 Cal.4th at p. 188.) "Substantive due process allows lawmakers broad power to select the elements of crimes, and to define one thing in terms of another." (Id. at p. 189.) The Constitution is not offended thereby.
Every California court to consider this question has reached the same conclusion. (See, e.g., People v. Taylor (2018) 19 Cal.App.5th 1195, 1204 (Taylor); People v. Mutuma (2006) 144 Cal.App.4th 635, 641; People v. Laughlin (2006) 137 Cal.App.4th 1020, 1027-1028; People v. Williams (2005) 130 Cal.App.4th 1440, 1446; People v. Pinkston (2003) 112 Cal.App.4th 387, 392-393 (Pinkston).) As Taylor recently explained, "Subdivision (b) of section 2800.2 thus creates no improper mandatory presumption permitting the prosecution to establish an 'elemental' fact—that is, the mental state required for the section 2800.2 offense—merely by showing a simple evidentiary fact—that is, the existence of three or more qualifying traffic violations. Rather, subdivision (b) reflects an exercise of the Legislature's authority to modify the statutory elements of the section 2800.2 offense." (Taylor, at p. 1204.)
Relying on the dissenting opinion in Pinkston, Johnson argues that the statute and corresponding jury instruction do not merely define an element of the offense, they require the factual finding of willful and wanton conduct based on certain predicate facts. (See Pinkston, supra, 112 Cal.App.4th at p. 397 (dis. opn. of Klein, P.J.).) Taylor provides a comprehensive rebuttal to this argument, and we adopt its reasoning here. (Taylor, supra, 19 Cal.App.5th at pp. 1201-1204.) To summarize, Johnson's logic is flawed because it assumes that the element of willful and wanton conduct has a meaning that is entirely separate from, and unaffected by, section 2800.2. As we have explained, however, section 2800.2 defines the required element of willful and wanton conduct in its own terms and for its own purposes. This definition is a rule of substantive law that sets forth what the prosecution must prove. It is not a presumption that relieves the prosecution of the burden of producing evidence of some other required element. The court did not err by instructing the jury with CALCRIM No. 2181.
Johnson's reliance on Hanna v. Riveland (9th Cir. 1996) 87 F.3d 1034 is also unavailing. As Johnson recognizes, Hanna considered a permissive presumption that allowed, but did not require, the jury to find an ultimate fact based on certain predicate facts. (Id. at p. 1037.) It has no relevance to the rule of substantive law at issue here.
III. Confrontation Clause Challenge
Johnson contends the admission of text messages from Stepney's cell phone violated his right to confront and cross-examine witnesses under the Confrontation Clause of the Sixth Amendment of the United States Constitution. At trial, the defense objected to admission of the text messages based on People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton), which limited the ability of prosecutors to introduce incriminating statements made by one defendant in a joint trial involving multiple defendants. The court overruled the objection. It reasoned that the text messages were admissible under the coconspirator exception to the hearsay rule under Evidence Code section 1223, that the Aranda/Bruton rule did not apply to coconspirator statements, and that defendants' federal constitutional rights were not implicated because the text messages were not testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
"The Confrontation Clause of the Sixth Amendment provides: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' In [Crawford, supra, 541 U.S. at pp. 53-54], [the United States Supreme Court] held that this provision bars 'admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' A critical portion of this holding . . . is the phrase 'testimonial statements.' Only statements of this sort cause the declarant to be a 'witness' within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Davis v. Washington (2006) 547 U.S. 813, 821; accord, People v. Hopson (2017) 3 Cal.5th 424, 431.)
"Although the court in Crawford 'did not offer an exhaustive definition of "testimonial" statements,' the court has since clarified that 'a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial' [citation]—that is to say, unless the statements are given in the course of an interrogation or other conversation whose ' "primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution." ' [Citations.] Under this test, '[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.' [Citation.] The court . . . , however, 'decline[d] to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment.' [Citation.] A court also considers the formality ' "of the situation and the interrogation" ' in determining the primary purpose of a challenged statement. [Citation.] 'In the end, the question is whether, in light of all the circumstances, viewed objectively, the "primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1214-1215 (Rangel).) "In addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation." (Michigan v. Bryant (2011) 562 U.S. 344, 367.)
Our Supreme Court has held that casual remarks exchanged between friends or acquaintances are not testimonial for purposes of the Confrontation Clause. For example, in People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19, the court concluded that a crime victim's statements to a friend at school were not testimonial. In People v. Gutierrez (2009) 45 Cal.4th 789, 813, the court concluded that a three-year-old's statement to his aunt was not testimonial. In Rangel, supra, 62 Cal.4th at page 1217, the court concluded that statements between and among various family members were not testimonial. The Courts of Appeal have reached similar conclusions. (See, e.g., People v. Butler (2005) 127 Cal.App.4th 49, 59 [statements made to coworkers not testimonial]; People v. Cervantes (2004) 118 Cal.App.4th 162, 173-174 [statements made to neighbor who was providing medical care not testimonial].) As Crawford explained, "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Crawford, supra, 541 U.S. at p. 51.)
The text messages at issue here fall squarely in the category of nontestimonial statements. They were casual remarks between friends or acquaintances, with no degree of formality or solemnity. No police officers or other agents of the government were involved. The primary purpose was decidedly not to preserve facts or statements that would be potentially relevant to future criminal prosecution. To the contrary, the participants exchanged the messages to plan and execute a violent robbery, with the hope (one would infer) of avoiding criminal prosecution.
Johnson claims that "discussion of one's participation in a serious crime like robbery can never be considered a 'casual remark,' " but he misinterprets that phrase. A remark is "casual" not in the sense of "frivolous" or "inconsequential," but in the sense of lacking formality and solemnity. (See People v. Dungo (2012) 55 Cal.4th 608, 619.) Correctly interpreted, the text messages at issue here are casual remarks and do not have any of the hallmarks of testimonial statements. (See Rangel, supra, 62 Cal.4th at p. 1217 ["[T]he statements . . . were not made to law enforcement officers, nor were they otherwise made under circumstances suggesting a primary purpose of creating evidence for defendant's prosecution."].)
Johnson acknowledges that existing authorities, in California and elsewhere, have found that similar statements are nontestimonial. He does not make a serious attempt to argue that the text messages at issue here are not testimonial under existing law. Instead, he relies on two law review articles and a dissenting opinion by a single justice of the Washington Supreme Court to argue that the existing framework for identifying testimonial statements is incorrect. The law review articles propose alternatives to the existing framework based on the function of the challenged statements at trial. (See Ross, After Crawford Double-Speak: "Testimony" Does Not Mean Testimony and "Witness" Does Not Mean Witness (2006) 97 J. Crim. L. & Criminology 147, 147 ["Currently the Court determines whether a hearsay declarant is a witness based upon what occurred at the time the person made his out-of-court statement. Instead, this Article proposes that the Court should decide if out-of-court statements constitute testimony based on whether the declarants functioned as witnesses against the defendant at trial."]; Fisher, Preface: Reclaiming Criminal Procedure (2009) 38 Geo. L.J. Ann. Rev. Crim. Proc. iii, xi ["Instead of simply asking whether an interview resembles in-court testimony in terms of its appearance or the participants' motives, the exclusionary rule approach requires us to ask whether a criminal justice system in which the government is able to prosecute child abuse cases by means of introducing risk assessment interviews in place of victim testimony would be acceptable."].) And the dissenting opinion cited by Johnson likewise appears to depart significantly from existing federal and California jurisprudence regarding testimonial statements. (See State v. Shafer (2006) 156 Wash.2d 381, 401 (dis. opn. of Sanders, J.) ["[The statements] are testimonial if a reasonable, competent person in a similar position would expect the State to use them in investigating or prosecuting a crime."].) Whatever the merits of these approaches, we are bound to adhere to the framework adopted by the United States Supreme Court and the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The authorities Johnson cites are therefore unpersuasive.
Johnson argues that even if the text messages are considered nontestimonial, they still should not have been admitted under Aranda, supra, 63 Cal.2d 518 and Bruton, supra, 391 U.S. 123. We disagree. Bruton was expressly premised on a defendant's Confrontation Clause rights. (Bruton, at pp. 126-128.) Because the Confrontation Clause is not implicated by nontestimonial hearsay, Bruton has no application here. "[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. 'Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.' " (Ohio v. Clark (2015) ___ U.S. ___ [135 S.Ct. 2173, 2180].) This view of Bruton has been widely accepted by courts in California and elsewhere. (See People v. Cortez (2016) 63 Cal.4th 101, 129; People v. Almeda (2018) 19 Cal.App.5th 346, 362-363; People v. Gallardo (2017) 18 Cal.App.5th 51, 68-69; People v. Washington (2017) 15 Cal.App.5th 19, 23, 27-29; People v. Arceo (2011) 195 Cal.App.4th 556, 574-575; see also United States v. Vasquez (5th Cir. 2014) 766 F.3d 373, 378 [collecting federal cases].) Accordingly, Bruton has no application where, as here, the statements at issue are nontestimonial.
We need not separately discuss Aranda because, to the extent it would compel the exclusion of evidence beyond that required by the federal Constitution, it has been abrogated by a subsequent amendment to the California Constitution. As our Supreme Court has explained, "To the extent that our decision in People v. Aranda, supra, 63 Cal.2d 518, constitutes a rule governing the admissibility of evidence, and to the extent this rule of evidence requires the exclusion of relevant evidence that need not be excluded under federal constitutional law, it was abrogated in 1982 by the 'truth-in-evidence' provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d))." (People v. Fletcher (1996) 13 Cal.4th 451, 465.)
Johnson points to three opinions that considered Aranda/Bruton issues in connection with arguably nontestimonial hearsay after Crawford. (See People v. Hajek (2014) 58 Cal.4th 1144, 1203-1204; People v. Garcia (2008) 168 Cal.App.4th 261, 279-280; United States v. Mussare (3d Cir. 2005) 405 F.3d 161, 168.) But these decisions did not consider whether the Aranda/Bruton analysis was affected by Crawford. They simply rejected the defendants' Aranda/Bruton arguments on their merits. (Hajek, at p. 1204; Garcia, at pp. 281-282; Mussare, at p. 169.) Because these opinions do not discuss the interplay between Aranda/Bruton and Crawford, they are unpersuasive. (See In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [" 'It is axiomatic that cases are not authority for propositions not considered.' "].)
For the foregoing reasons, we conclude the text messages at issue were nontestimonial. Their admission did not violate Johnson's federal constitutional rights under the Confrontation Clause. Because Johnson raises no other reason why the text messages may have been inadmissible (e.g., under California's evidentiary rules), he has not shown the court erred by admitting the text messages into evidence.
IV. Three-week Midtrial Continuance
Johnson further contends the court erred by granting a midtrial continuance of three weeks and by denying his related motion for a mistrial. On the fourth day of trial testimony, the court informed the parties that it had received a declaration from jail personnel that Stepney was being quarantined because he may have been exposed to chicken pox. The court believed that Stepney might be released from quarantine within four days, based on medical tests, so it continued trial until the following week. At the next hearing, however, the court informed the parties that Stepney was still under quarantine. Jail personnel, including their chief medical officer, stated that Stepney could only attend trial if he wore a surgical mask to prevent transmission of the chicken pox virus. The chief medical officer explained that chicken pox was highly contagious and can be a severe illness in infected adults.
The court did not believe that a surgical mask would be an acceptable solution, given the factual circumstances of the robbery. The court therefore found good cause to continue trial for a further two and one-half weeks, by which time Stepney's quarantine should be lifted.
Johnson's counsel objected to the continuance and moved for a mistrial. He argued that the continuance was "too long given the evidence that [the jurors had] heard and what evidence they are going to hear upon their return[.]" The court disagreed. It stated that the facts of the case were not difficult to understand and nothing about the sequence of witnesses created undue prejudice from the timing of the continuance. The court asked the jurors whether they could return in two and one-half weeks, and they all agreed to do so. When trial restarted, additional witnesses testified over two half-day sessions, the court instructed the jury, and the parties presented closing arguments.
A continuance may be granted only upon a showing of good cause. (Pen. Code, § 1050.) In a joint trial, good cause to continue one defendant's trial also constitutes good cause to continue the trial of the remaining defendants. (Id., § 1050.1.) Johnson does not dispute that a medical quarantine, such as the one at issue here, would constitute good cause to continue trial in the abstract. (See, e.g., People v. Tucker (2011) 196 Cal.App.4th 1313, 1314.) Instead, he argues that the trial court should have granted his motion for a mistrial when it concluded that a lengthy continuance was necessary, or severed Stepney's case to allow Johnson's case to proceed.
"[A] motion for mistrial should be granted only when ' "a party's chances of receiving a fair trial have been irreparably damaged." ' " (People v. Ayala (2000) 23 Cal.4th 225, 282.) " ' "Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (People v. Lucero (2000) 23 Cal.4th 692, 714.) We review the court's denial of a motion for mistrial for abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 444.)
In the early case of People v. Erno (1925) 195 Cal. 272 (Erno), our Supreme Court considered whether a 10-day continuance during trial was prejudicial. The Supreme Court found no prejudice: "The only complaint the substituted counsel for [the defendant] seem to make in the matter is that during the long recess some of the jurors might have been exposed to undue influence against the defendants, created by the press and newspapers published in the vicinity of Yreka where the trial was held. If it were a fact that the jury had been improperly influenced from such sources, it was not made to appear. It nowhere appears in the record in what manner, or how, the action of the court, in granting the long continuance, resulted to the detriment of [the defendant], or tended to prevent him from having a full, fair and impartial trial." (Id. at pp. 282-283.)
Similarly, in People v. Katzman (1968) 258 Cal.App.2d 777 (Katzman), the trial court granted a midtrial continuance of 13 days. (Id. at p. 790.) Although the reviewing court determined that the continuance was not supported by good cause, it concluded the defendant was not prejudiced: "In this case no effect of the continuance of the trial is apparent; there is no indication whatsoever that [the defendant] was deprived of a fair trial because of the 13-day delay. His suggestion that the jury engaged in misconduct during that period is pure speculation." (Ibid.)
Johnson has not shown the court abused its discretion by denying his motion for mistrial. He claims that jurors might forget or confuse the prior testimony, or improperly discuss the case, but these claims are purely speculative. The trial court stated, and we agree, that the facts of the case were not unduly complex. There was no reason for the trial court to believe the jury would have forgotten or confused the prior testimony. And the jury was admonished not to discuss the case during the break. We presume the jury followed these instructions, absent any indication to the contrary. (People v. Johnson (2015) 61 Cal.4th 734, 770.)
Johnson relies on People v. Santamaria (1991) 229 Cal.App.3d 269 (Santamaria) and People v. Englemann (1981) 116 Cal.App.3d Supp. 14 (Englemann), but those cases differ significantly from the circumstances here. In neither case was the continuance at issue justified by good cause. (Santamaria, at p. 277; Englemann, at p. 20.) Here, by contrast, the continuance was prompted by an undisputed medical necessity.
Santamaria involved a continuance during jury deliberations. (Santamaria, supra, 229 Cal.App.3d at p. 277.) That court concluded, among other things, that "[a] long adjournment of deliberations . . . disrupts the very process and pattern of the jury's orderly examination of the evidence." (Id. at p. 278.) That conclusion, along with the concern that the jurors would forget evidence or be subject to improper influence, compelled the court to find prejudice. (Ibid.) Here, the jury was not deliberating, and any concern over forgetfulness or improper influence was purely speculative. As Santamaria recognized, "Had the adjournment occurred in midtrial, counsels' recapitulation of the evidence during argument might have nullified or minimized the effect of the delay on the jurors' recall." (Id. at p. 282.) Santamaria does not aid Johnson under the circumstances here.
Englemann involved a three-week continuance after the prosecution had rested and before the defendant had introduced any evidence. (Englemann, supra, 116 Cal.App.3d Supp. at p. 21.) The court was therefore concerned that "the jury was left with a one-sided presentation for three weeks." (Ibid.) Here, Johnson's defense consisted primarily in his cross-examination of the prosecution's witnesses, and his affirmative presentation of evidence was limited. Under these circumstances, Englemann is inapposite.
In sum, as in Katzman and Erno, Johnson has not shown any prejudice from the three-week continuance during his trial. The trial court therefore did not abuse its discretion by denying his motion for mistrial. For the same reasons, the court did not err by refusing to sever Stepney's case and allow Johnson's to proceed. The lengthy continuance of both cases was not prejudicial to the defendants, whereas severing the trials would have required Stepney's retrial (to empanel a new jury) at considerable expense and inconvenience to the parties, the witnesses, and the court.
Citing several United States Supreme Court opinions, Johnson also contends the continuance in his trial was inherently prejudicial. None of those opinions considered an analogous situation. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 335, 351-352 [trial court failed to protect jurors from "massive, pervasive and prejudicial publicity that attended his prosecution"]; Estes v. Texas (1965) 381 U.S. 532, 543-544 [intrusive televising and broadcasting of trial]; Turner v. Louisiana (1965) 379 U.S. 466, 473 [same deputy sheriffs served both as witnesses and jury custodians].) We cannot say that the continuance at issue here was similarly inherently suspect. Johnson cites Gordon v. Justice Court (1974) 12 Cal.3d 323, 329, for the proposition that he need not show actual prejudice in this circumstance, only the reasonable probability of prejudice. To be clear, we conclude Johnson has not shown a reasonable probability of prejudice for the reasons we have discussed. --------
V. CALCRIM No. 372
Johnson further contends the court erred by instructing the jury with CALCRIM No. 372 regarding the inference of awareness of guilt that may be drawn from a defendant's flight. The court's jury instruction read as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Johnson contends the instruction was erroneous because the jury could reasonably have understood it to apply to the offense of reckless driving while evading a peace officer. Because that offense includes an element of willful flight or eluding a peace officer, Johnson reasons, the effect of the general flight instruction was to improperly lessen the prosecution's burden of proof on the remaining elements of the offense. (See In re Winship (1970) 397 U.S. 358.) Johnson argues that reversal is required unless we conclude the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.)
We need not determine whether the instruction was erroneous under the circumstances here. Even accepting for purposes of argument that instructing the jury with CALCRIM No. 372 was an error of federal constitutional dimension, we conclude any presumed error was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24.)
We note at the outset that the effect of the instruction on the jury's consideration of the elements of the offense was likely slight. (See People v. Farley (1996) 45 Cal.App.4th 1697, 1711.) By contrast, the evidence of the remaining elements of the offense was overwhelming. The evidence was undisputed that Johnson's Mercedes was pursued by several police officers, those police officers were driving distinctively-marked vehicles and wearing distinctively-marked uniforms, they activated their red lights and sirens, and Johnson reasonably should have seen the lights. (See Veh. Code, §§ 2800.1, 2800.2, subd. (a); People v. Byrd (2016) 1 Cal.App.5th 1219, 1222-1223.) It was also undisputed that Johnson's Mercedes was driven with willful or wanton disregard for the safety of persons or property, both because property damage occurred and because three or more violations that are assigned a traffic violation point count occurred. (See Veh. Code, § 2800.2, subd. (b).)
Johnson's defense at trial was, essentially, that he was not involved in the robbery and was not the driver of the Mercedes that police pursued. The jury's verdict on the remaining charges and allegations shows that it rejected this defense. Given this verdict, and the overwhelming nature of the evidence, we can conclude that any presumed error was harmless beyond a reasonable doubt.
Johnson speculates that the instruction prevented the jury from considering the remaining elements. But, as noted above, the instruction itself cautions that "evidence that the defendant fled or tried to flee cannot prove guilt by itself." The jury was therefore required to assess the remaining elements, even under the challenged instruction. For the reasons we have explained, we have no reasonable doubt that any presumed error was not prejudicial, i.e., that the jury would have assessed the elements in the same way had the instruction not been given. Based on that conclusion, we need not consider whether Johnson forfeited any claim of error by not requesting clarification of the instruction in the trial court.
VI. Penal Code Section 654
Johnson contends the court erred by imposing sentences for both his assault conviction and his reckless driving while evading a peace officer conviction. He argues the sentences violate the prohibition on multiple punishments for the same conduct or course of conduct under Penal Code section 654. That statute provides, in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654.)
"[Penal Code] Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208 (Latimer), quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) "Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct. [Citation.] A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
The evidence here supports the trial court's implied finding that Johnson harbored multiple criminal objectives when he crashed his Mercedes into the police officer's SUV. The crash occurred after a tense and prolonged police chase, during which Johnson reasonably would have developed animosity and anger toward the police. In the moments leading up to the impact, the police officer Johnson assaulted was not actively pursuing the Mercedes; he was trying to avoid it. Johnson then intentionally crashed his Mercedes into the SUV. On this record, the trial court could reasonably find that Johnson harbored a separate criminal objective (assaulting the police officer) that was not merely incidental to the objective of fleeing from police. (See People v. Nguyen (1988) 204 Cal.App.3d 181, 190 [shooting of unresisting victim not merely incidental to robbery].)
These facts are distinguishable from Latimer and other opinions involving sex offenses cited by Johnson. (See Latimer, supra, 5 Cal.4th at pp. 1216-1217; People v. Martinez (1985) 171 Cal.App.3d 727, 736; People v. Walker (1983) 146 Cal.App.3d 34, 41; People v. Wall (1979) 95 Cal.App.3d 978, 990.) In those cases, the separate crimes of kidnapping, false imprisonment, or assault were committed to facilitate the sex offense. Similarly, in People v. Brown (1989) 212 Cal.App.3d 1409, 1426-1427, the separate crime of assault was committed to facilitate a robbery. No separate intent or objective could be inferred from the evidence. Here, by contrast, the trial court could reasonably find that Johnson harbored a separate intent and objective to harm the pursuing police officer when he intentionally crashed his Mercedes into the officer's SUV as it was trying to avoid him. The trial court did not err by refusing to stay Johnson's punishment for assault under Penal Code section 654.
VII. Penal Code Section 12022.53, Subdivision (h)
In supplemental briefs, Johnson and Stepney contend their sentences should be vacated and the matter remanded to the trial court for resentencing based on Penal Code section 12022.53, subdivision (h). That subdivision, which became effective after defendants were sentenced, allows a trial court to exercise its discretion under Penal Code section 1385 to strike a firearm enhancement in the interest of justice. (Pen. Code, § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) The statute previously prohibited the trial court from exercising its discretion in this way. (Former Pen. Code, § 12022.53, subd. (h).) Defendants argue that the new subdivision should be applied retroactively to them under the Estrada rule. (See In re Estrada (1965) 63 Cal.2d 740.) The Attorney General concedes that the new subdivision should be applied retroactively and remand is necessary "under current Supreme Court authority."
We accept the Attorney General's concession. Several recent opinions, including an opinion issued by a different panel of this court, have concluded that Penal Code section 12022.53, subdivision (h) applies retroactively. (See, e.g., People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425; People v. Chavez (2018) 22 Cal.App.5th 663, 712.) And, because the record contains no clear indication how the trial court would have exercised its discretion if it had been empowered to do so at the time of defendants' sentencing, we will vacate defendants' sentences and remand for resentencing. (See McDaniels, at p. 447; Chavez, at pp. 713-714.) We express no opinion regarding how the trial court should exercise its discretion.
VIII. Penal Code Section 3051
Johnson further contends, based on another newly-effective statute, that the matter should be remanded to allow the trial court to hold a hearing and make a record for use at any future youth offender parole hearing under Penal Code section 3051. Since Johnson's sentencing, that statute has been amended to extend eligibility for such hearings to inmates who were between the ages of 23 and 25 at the time of their offense. (See Pen. Code, § 3051, subds. (a)-(b), as amended by Stats. 2017, ch. 675, § 1.) The Attorney General states he has no objection to remand for such a hearing.
We agree that remand for a hearing at which the parties are able to make a record of information relevant to any future youth offender parole hearing is appropriate. In People v. Perez (2016) 3 Cal.App.5th 612, the appellate court considered an analogous argument by a defendant who was newly-eligible for a youth offender parole hearing based on earlier amendments to Penal Code section 3051. Because the defendant did not have a sufficient opportunity to make a record of information relevant to such a hearing, the court concluded that a limited remand was warranted. (Perez, at p. 619; see People v. Franklin (2016) 63 Cal.4th 261, 284.) The same reasoning applies here.
DISPOSITION
Johnson and Stepney's sentences are vacated and the matter is remanded for resentencing consistent with this opinion. The superior court is directed to provide Johnson and the People with an opportunity to make a record of information relevant to any future youth offender parole hearing. In all other respects, the judgments are affirmed.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. DATO, J.