Opinion
A150700
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA PITTMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 224462)
A jury convicted appellant of three felony counts of intimidation of a witness by force or threat of force (Pen. Code § 136.1, subd. (c)(1)). The trial court sentenced him to an aggregate term of eight years in prison. In this court, appellant contends he was denied a fair trial because of erroneous evidence rulings and a mistake in a jury instruction. He also contends the trial court erred by enhancing his sentence because of a prior juvenile adjudication. We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
In January 2015, the superior court issued a warrant to arrest appellant for multiple charges arising from three events. The first set of charges accused appellant and two other men of murder, conspiracy and other crimes relating to the shooting death of Deon Jackson on November 4, 2010. Second, appellant was charged with murdering Otto Brown, attempting to murder Arrika Hunter and committing other related offenses on June 30, 2013. Third, appellant, and a man named Alfred Toloi, were accused of intimidating witnesses by force or threat on October 24, 2014.
A September 2016 amended information charged appellant with fifteen crimes. The first two counts charged appellant and Antonio Bowers with murder and conspiring to murder Deon Jackson in 2010. The remaining counts were alleged against appellant only. Counts 3 through 12 charged him with committing multiple crimes in 2013, including the murder of Otto Brown, attempted murder of Arrika Hunter, and several assault and weapons offenses. Counts 13, 14 and 15 charged that appellant attempted to prevent or dissuade a witness by use of force or threat from giving testimony or causing charges to be filed against him. The People alleged that appellant committed these last three offenses on October 24, 2014, and that the witnesses appellant attempted to intimidate were David Semaia, Iosefa Maloa, and Sane Niumalelega.
Appellant's and Bowers's joint jury trial was set for October 2016. The People filed two in limine motions that are relevant to issues in this appeal. First, they sought to admit extensive evidence of uncharged misconduct by both defendants pursuant to Evidence Code section 1101, subdivision (b). The evidence pertinent to this appeal involved incidents when one or both defendants possessed guns. For example, the People proposed to show that in August 2010, appellant was arrested for gun possession and questioned about a suspected gang murder of Edward Lacey. The People argued this evidence was relevant to establish a motive for the Deon Jackson murder (counts 1-2) because after appellant was arrested and questioned about the Lacey murder, he suspected that Jackson was a police informant who had snitched about appellant's role in the Lacey murder. The People argued that several other incidents when appellant or Bowers were charged with gun possession or found with guns were relevant to prove opportunity because this evidence showed the defendants had access to guns "before, during, and after Deon Jackson and Otto Brown's murders." The trial court found that the August 2010 incident and several other incidents that occurred near the time of one of the murders were relevant and potentially admissible to prove motive and/or means and opportunity.
The prosecution also filed a motion to introduce gang evidence to "show a lifestyle, an ethos that defendants lived by that included the murder of Deon Jackson by both defendants in 2010 and the murder of Otto Brown by defendant Pittman in 2013." The People proposed to elicit expert testimony on issues "related to 'snitching' paperwork, the 'G code' of silence, aliases, street names," and the meaning of phrases in letters written by or sent to appellant. The trial court excluded testimony by a gang expert as too inflammatory and not sufficiently connected to the pending charges, but it opined that lifestyle evidence would be admissible to prove other relevant issues, such as motives for the alleged crimes. In reaching these conclusions, the court observed: "But the Court is very aware the issue of snitching, or talking about what snitching represents, that that can cause concern for people independent and separate from any gang motivations. [¶] People throughout history have not necessarily been happy about people quote, unquote, 'snitching' on them."
The jury trial was conducted over several weeks between October and December 2016. The jury began deliberating on December 13, and returned verdicts on December 20. Appellant was found guilty of three felony violations of section 136.1 for attempting to prevent or dissuade a witness by force or threat of force. However, the jury found appellant was not guilty of charges relating to the 2013 murder of Otto Brown. Moreover, it was not able to reach a verdict as to the murder and conspiracy charges against appellant relating to the 2010 shooting death of Deon Jackson.
II. THE WITNESS INTIMIDATION CONVICTIONS
Appellant challenges his convictions for violating section 136.1. That statute provides that a person is "guilty of a public offense" if he or she "[k]nowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." (§ 136.1, subd. (a)(2).) This crime is a felony when the unlawful act is "accompanied by force or by an express or implied threat of force or violence." (§ 136.1, subd. (c)(1).)
Section 136.1 does not restrict "the means a defendant selects to commit the offense, nor does it require that [the] defendant personally deliver the message to the witness. A threat need not actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness." (People v. Foster (2007) 155 Cal.App.4th 331, 335.) Thus, a defendant can violate this law by conveying to an intermediary a threat that he wants to be delivered to a witness. (Ibid.)
A. Trial Evidence
The prosecutor's theory was that appellant, who is sometimes referred to as Pitt or JP, attempted to dissuade witnesses from testifying against him by securing strongarm assistance from Alfred Toloi, who is also known as Fiji or Freddy Fiji. The prosecution presented evidence that appellant enlisted Toloi in his plan by exchanging letters with him while they were both in county jail in San Bruno. Both letters were admitted into evidence without objection. The prosecutor elicited testimony about the letters from three trial witnesses.
Deputy Sherriff Shane O'Neill is a twenty-three-year veteran of the San Francisco Sherriff's Department. On October 24, 2014, O'Neill participated in a search of a pod of cells at the San Bruno jail. During that search, O'Neill found a letter on the top bunk bed of a cell that he subsequently learned was occupied by appellant and another man. The letter was a single piece of paper with writing on both sides. It began as follows: "J.P. Josh, this is Uso Freddi Fiji. I try to do my best to find the Uso Iosefa Maloa, the snitches. I will send the message to the usos at Harbor Road 700 block, or I will go down to my SOS usos all over the H-Points to take care of whoever is this Uso Iosefa M. is."
O'Neill testified that the content of this letter concerned him because it "seemed to be a threatening letter against someone that was deemed to be a snitch." When the prosecutor asked O'Neill to specify the threatening language, defense counsel made a relevancy objection, which the court overruled. Then, O'Neill pointed out that Iosefa Maloa was referred to as a "snitch," and that the author stated he would convey this message to others on the 700 block of Harbor Road and elsewhere in Hunter's Point to "take care of whoever."
O'Neill also flagged two other passages in the letter, one which stated: "If I meet him face to face, I will tell him straight up don't show up to court, and I will scare him, too, just like I did to that dude Tank, or whatever his name is, in the classroom." The second passage was: "I got you, bra. I don't like snitches either." O'Neill testified that "to me this was a clear threat. To me, it's obvious that that - this individual will in somehow or some way be dealt with by this Freddy individual." Defense counsel objected again, and the trial court ruled that the second part of O'Neill's statement called for speculation and was, therefore, stricken. O'Neill proceeded to testify that he was familiar with the term "snitch" because it was "jailhouse vernacular," which led to another objection and a sidebar conference.
O'Neill then testified that he had worked in jails for 22 years and in his experience doing that work he came to understand that a "snitch is a jail vernacular used by inmates to label other inmates that are either informants or witnesses against those inmates." According to O'Neill, if jail staff are alerted to the fact that a person has been labeled a snitch then the common practice would be to remove that person from his or her accuser, or if the person is labelled as a general snitch he or she may have to be placed into protective custody.
O'Neill also testified that he is familiar with the term "paperwork" as it relates to inmates, which means that individuals in custody are "allowed to have . . . all court documents related to their case."
Deputy Sherriff Robert Taylor testified that he had been employed by the Sherriff's Department for ten years, and from 2010-2016, he was assigned to the Classification unit, where his duties included "do[ing] research on different gangs in jail, different conflicts between different people to make sure no one gets harmed, either deputized staff or inmates." Taylor's duties also included searching jail cells.
On October 28, 2014, Taylor conducted an investigation to follow up on the letter addressed to J.P. Josh from Freddy Fiji that had been discovered in appellant's cell the previous week. Taylor talked to jail staff and his confidential informants trying to ascertain the identity of Freddy Fiji. That investigation led him to conduct a search of the jail cell occupied by Alfred Toloi. During this search, Taylor found several letters that contained the word "Fiji"; including one in an envelope addressed to Alfreddy Toloi. One letter stated:
"Iosefa Maloa telling on me I need to know where he at I got the paperwork but he not letting court be held in the street!! David Semiai [¶] Sane N [¶] They stayed on harbor Rd 700 Blk
"Otto Brown got killed an I'm in here over something I didn't do and cause I aint telling who did it!
"We both no snitching aint good in this street life! I need any info on them to be handle or to not come to court!!
"If you can help me I'll bring paperwork am [¶] My name JP"
The prosecutor asked Taylor if this letter caused him "any concern as a custodial officer—as a sheriff." Defense counsel made a relevancy objection, which was overruled. Then Taylor testified that the letter was concerning. The prosecutor asked what about the letter was concerning and Taylor responded by quoting phrases and explaining their implications. For example, Taylor said that Iosefa Maloa "telling on me" concerned him because "in jail [when] people are telling on somebody else, they either get beat up or killed on the streets."
Taylor also said that the phrase that "He not letting court be held in the streets" means "maybe they are looking for him to hurt someone or kill them." Defense counsel objected that this testimony was speculation, but the prosecutor countered this testimony was proper to explain why the letter concerned Taylor and the court allowed the testimony "[f]or that limited purpose."
The prosecutor asked Taylor whether, in his experience, the term "paperwork" is used to refer to the information pertaining to charges, police reports and names of witnesses that an inmate is permitted to have in his personal possession while preparing to go to trial. Defense counsel objected and requested a side bar. After the court and counsel had an unrecorded discussion, Taylor was permitted to answer the question and confirmed that the term "paperwork" had the meaning that the prosecutor had proposed.
Taylor went on to testify about other statements in the letter that concerned him, including that "snitching ain't good in this street life" and that the author needed "info on them to be handle[d] or not come to court." These remarks concerned Taylor because "handling either means you beat someone up, possibly kill them, or make [them] . . . 'not come to court.' "
Finally, Taylor testified he was concerned by a statement at the end of the letter, which said that if Toloi could help, appellant would "bring paperwork a.m." because that meant he would bring his paperwork to the "a.m. corridor where they go [to] high school" at the jail.
Linda Eisenhart testified at trial as an expert with respect to the examination of questioned documents. Eisenhart is a forensic document examiner for the FBI whose duties include examining and comparing "handwriting, typewriting, and other documentary evidence for the purposes of determining either authenticity or origin." In this case, she examined the letter Deputy O'Neill found in Toloi's jail cell and compared it to 30 known writings by appellant. Eisenhart testified about the process she used to compare these documents, and the patterns she found in them. Eisenhart concluded that the jail letters and appellant's writing originated from the same author. She based this opinion on the following considerations: (1) the "significant characteristics and agreement both in quality and quantity" would not likely be "repeated in a handwriting sample of another writer"; (2) the absence of "fundamental differences to suggest another writer"; and (3) the fact that the "exclusion of all" other potential writers is not possible "[d]ue to the impossibility of examining all handwriting."
B. Deputy Taylor's Testimony
Appellant first contends the trial court erred by permitting Deputy Taylor to testify about the meaning of the following sentence in the letter appellant wrote to Toloi: "He not letting court be held in the street." Appellant argues that Taylor's testimony that this statement meant that "maybe they are looking for him to hurt someone or even kill them" was irrelevant and prejudicial as a matter of law.
"Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence." (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.)
In this case, the exchange of letters between appellant and Toloi constituted the substantive evidence that appellant attempted to dissuade witnesses from testifying against him. Importantly, appellant does not dispute those letters were admissible at trial. Instead, his sole claim is that Deputy Taylor should not have been permitted to testify about the meaning of one specific phrase in appellant's letter. We discern two distinct arguments in support of this claim, neither of which disputes the substantive relevance of the meaning of appellant's statement.
First, appellant argues that the trial court erred by overruling his objection when the prosecutor asked Taylor why he was concerned by the statement that "He not letting court be held in the street." Appellant argues this question was improper because Taylor's state of mind was irrelevant. As support for this argument, appellant relies on People v. Scalzi (1981) 126 Cal.App.3d 901 (Scalzi).
In Scalzi, the defendant, whose first name was John, was charged with conspiracy to sell methamphetamine. His defense was that he just happened to be at the drug dealers' home when an undercover officer executed warrants there. (Scalzi, supra, 126 Cal.App.3d. at p. 903.) At trial, the arresting officer was permitted to testify about a telephone conversation he had with an unknown woman who called the home where the warrants were executed. During the conversation, the woman asked if John was there, and after the officer said he was not, the woman asked if John had "taken care of business," and if he "had gotten it bagged up." (Id. at p. 905.) In response, the officer told the woman that John had "taken care of that." (Ibid.) After recounting this conversation for the jury, the officer went on to testify that " 'bagged' is a term for packaging of narcotics for sale, basically for transportation," and that he interpreted the woman's question as an inquiry about whether the drugs in the home had been placed into plastic bundles by John. (Id. at p. 906.) The jury found defendant guilty of conspiracy. On appeal, he argued that the trial court erred prejudicially because the arresting officer's telephone conversation with the unknown woman was inadmissible hearsay, not covered by an exception. The People countered that this testimony was properly admitted as nonhearsay because it was probative of the officer's state of mind, to explain why he booked and charged appellant for conspiracy to sell drugs. But the Scalzi court found that the officer's state of mind and anything he did in response to the telephone conversation were not relevant to any disputed issue at trial. (Id. at p. 906-907.) Furthermore, the error was prejudicial because, while the phone conversation was devoid of value as nonhearsay, it was highly prejudicial as hearsay and the jury probably accepted it as true. (Id. at p. 908-909.)
Scalzi addressed a materially different evidentiary issue than we face here. The Scalzi prosecutor elicited hearsay evidence from a trial witness; the telephone conversation consisted of out of court statements, inadmissible for their truth. The People attempted to skirt this error by arguing the telephone conversation was admissible as nonhearsay because it was relevant to explain why the officer charged the defendant with conspiracy, but that argument failed because the officer's state of mind, i.e., the reason for his charging decision, was not relevant. In the present case, by contrast, Deputy Taylor's testimony was not hearsay; Taylor testified about his interpretation of a statement in a letter that was admitted into evidence without objection. Thus, a nonhearsay purpose, like the state of mind rule, was not required to legitimize Taylor's testimony. Rather, the dispute regarding Taylor's testimony about the meaning of appellant's remark pertained to relevancy and speculation. The trial court ruled that Taylor's impressions were relevant based on his knowledge and experience as a deputy sheriff and custodial officer. This ruling was not error because Taylor's concerns about appellant's remark, which pertained to the safety of residents and employees of the jail, were relevant to prove that appellant acted with the intent required to violate section 136.1—i.e., that appellant knew how his letter would be interpreted and sent it because he was attempting to intimidate witnesses.
Appellant's second argument is that Taylor's opinion about what the letter meant was irrelevant and inadmissible as a matter of law because Taylor was not offered or qualified as an expert witness. Appellant forfeited this claim because the trial record does not show that he challenged Taylor's expertise to offer his opinion on this subject. (See People v. Partida (2005) 37 Cal.4th 428, 433-434.) Furthermore, the fact that the trial court did not explicitly qualify Taylor as an expert does not mean his testimony was inadmissible. "[W]hile Evidence Code sections 720, subdivision (a), and 802 provide that the person testifying as an expert must be qualified by special knowledge, skill and experience, these foundational requirements need not be established in the absence of a specific objection or unless the court, in its discretion, requires it." (People v. Rodriguez (1969) 274 Cal.App.2d 770, 776.)
Moreover, several circumstances outlined in our summary of the trial evidence indicate that the trial court did qualify Taylor as an expert. First, a similar issue arose earlier in the trial when Deputy O'Neill was asked to decipher phrases in the letter that Toloi sent to appellant, and the court allowed that testimony over appellant's objection after O'Neill described his relevant knowledge and experience. Second, before Taylor was asked about the letter appellant sent to Toloi, he also testified about his relevant experience working in jails. Indeed, when Taylor found appellant's letter, he was assigned to the Classification unit, where he was "do[ing] research on different gangs in jail, different conflicts between different people to make sure no one gets harmed." Finally, when the defense objected to Taylor testifying about the meaning of another phrase in the letter, there was a sidebar conference during which the defense objection was overruled. These circumstances support the conclusion that the trial court made a ruling (if not at the sidebar, then implicitly) that Deputy Taylor was qualified to render an opinion regarding the meaning of statements in the letter based on his years of experience working in the Classification unit.
Appellant contends that if the trial court authorized Taylor to testify as an expert, the court erred because Taylor's opinion was "too speculative." This conclusory assertion is inadequate to establish that the trial court abused its discretion. Nor are we persuaded by appellant's claim of prejudice. He contends that because the phrase " 'He not letting court be held in the street' " is "arcane and possibly sui generis," it is highly unlikely the jury would have been able to decipher it without Taylor's explanation and, therefore, it had no choice but to accept Taylor's interpretation of it. This argument implicitly concedes that Taylor's testimony was relevant and potentially useful to the jury, although we think it also gives too little credit to jurors who would likely have understood this metaphor without the benefit of Taylor's translation. Furthermore, we disagree that the jury had no choice but to adopt Taylor's interpretation of appellant's remark. The jury was explicitly instructed that it was free to accept or disregard expert opinions, and the record affirmatively demonstrates that the jurors did not accept the prosecutor's evidence when it did not convince them of appellant's guilt as to the other charges in this case.
C. Uncharged Gun Possession Evidence
As noted in our background summary, the prosecution was permitted to present evidence that appellant possessed weapons on occasions other than when the charged crimes occurred as probative of motive, intent and opportunity to commit the charged murders. Appellant contends this was "inappropriate propensity evidence," inadmissible under Evidence Code section 1101 (section 1101).
Section 1101 establishes the general rules governing the admissibility of evidence of a defendant's uncharged misconduct. Under this provision, "[e]vidence of defendant's commission of other crimes, civil wrongs or bad acts is not admissible to show bad character or predisposition to criminality, but may be admitted to prove some material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. [Citations.] Because evidence of a defendant's commission of other crimes, wrongs, or bad acts ' "may be highly inflammatory, its admissibility should be scrutinized with great care." ' [Citation.]" (People v. Cage (2015) 62 Cal.4th 256, 273 (Cage).) "Specifically, the uncharged act must be relevant to prove a fact at issue (Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (People v. Leon (2015) 61 Cal.4th 569, 597-598.)
Trial court rulings under section 1101 are reviewed for abuse of discretion. (Cage, supra, 62 Cal.4th at p. 273-274.) Under this standard, " ' "a trial court's ruling will not be disturbed, and reversal ... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329.)
Appellant argues the trial court abused its discretion here because when a defendant is charged with a gun-related offense, evidence he possessed guns that were not used in the charged crime is, by definition, prohibited character evidence. (Citing People v. Riser (1956) 47 Cal.2d 566, 577 (Riser), overruled on other grounds in People v. Chapman (1959) 52 Cal.2d 95, 98 and People v. Morse (1964) 60 Cal.2d 631, 648-649.)
In Riser, 47 Cal.2d 566, two brothers were convicted of murdering a couple with a Smith and Wesson gun, which was never found. (Id. at p. 572-573.) One issue before the Supreme Court was whether the trial court erred by admitting allegedly irrelevant evidence that the defendants possessed two other guns that were not used to commit the murders. The Riser court found that evidence of one of the guns should not have been admitted, applying the general rule that "[w]hen the prosecution relies . . . on [evidence regarding] a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (Id. at p. 577.) However, the Riser court also found that the trial court did not err by admitting evidence that the defendants' other gun was used by them to commit an uncharged robbery because another gun used in that uncharged incident could have been the murder weapon in the current case. (Id. at p. 578.)
Riser demonstrates that evidence a defendant possessed a gun that was not used in the charged crimes may be admissible if it is relevant to a material issue in the case. In this court, appellant does not consider the potential relevancy of each uncharged gun possession, resting instead on his overbroad claim that uncharged gun possessions are inherently prejudicial propensity evidence and inadmissible per se. Using the same approach to reach an opposite conclusion, the People argue that, while evidence of appellant's prior gun possessions "was far from dispositive, it had some tendency in reason to help prove the murder and assault charges, as well as the six substantive weapons charges." Neither argument is compelling.
" ' "The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence." ' [Citations.] 'In determining relevance, the trial court must look behind the label describing the kind of similarity or relation between the other offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.' " (People v. Jefferson (2015) 238 Cal.App.4th 494, 504 (Jefferson).)
Particularly in a case as complex as this, the specific facts of each uncharged gun possession incident merit individual attention. For example, as discussed above, the prosecutor argued that appellant's August 2010 arrest for gun possession during the investigation of the gang murder of Edward Lacey was relevant to establish a motive for the murder of Deon Jackson. Absent some countervailing consideration, it appears that this evidence was admissible for that purpose, even though DNA analysis of the gun did not identify appellant as a contributor.
Without demonstrating that any specific uncharged gun possession was irrelevant to a material disputed issue at trial, appellant cannot establish that the trial court abused its discretion under section 1101. Moreover, even if appellant could show it was error to admit evidence of one or more of the incidents, that showing would not be enough to secure a reversal of the judgment. "To prevail on appeal, [appellant] must demonstrate the error was prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836 []. [Citation.] 'Under the Watson standard, prejudicial error is shown where " ' "after an examination of the entire cause, including the evidence," [the reviewing court] is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" ' " (Jefferson, supra, 238 Cal.App.4th at p. 508.)
Appellant contends that the uncharged gun evidence necessarily affected the jurors' view of him by making "it more likely they would see him as violent, dangerous, and lawless," and thus "more likely they would find him guilty of dissuading [witnesses] by force." This argument is not based on anything specific that happened at trial; appellant does not cite any instance when the prosecutor invited this improper inference, either expressly or implicitly. Furthermore, as discussed previously, the witness dissuasion charges were based solely on the letters exchanged in jail, evidence that had nothing to do with using a gun. Finally, the jury was explicitly instructed that the uncharged gun possessions were not evidence of appellant's bad character or disposition to commit crime, and the fact that the jury did not convict appellant of charges that actually involved the use of a weapon indicates the jury followed this instruction. Under these circumstances, we conclude it is not reasonably probable a result more favorable to appellant would have been reached if the trial court had excluded evidence of uncharged gun possessions not otherwise relevant to a material issue in this case.
D. Jury Instruction Regarding Uncharged Conduct Evidence
Appellant contends the trial court erred by instructing the jury, albeit inadvertently, that it could consider the uncharged gun possession evidence when deciding whether appellant committed witness intimidation by force. Appellant traces this alleged error to a factual modification the court made to CALCRIM No. 375, the model instruction about uncharged conduct evidence. We repeat the entire instruction here, italicizing the sentence containing the allegedly prejudicial error:
"The People presented evidence of other behavior by the defendants and Kevin Hall that was not charged in this case.
"The People presented evidence regarding defendant Joshua Pittman that: [¶] 1. The defendant possessed a Glock 9 mm caliber semi-automatic handgun on August 17, 2010 at 12 George Court; [¶] 2. The defendant possessed a Smith and Wesson .40 caliber semi-automatic handgun on January 7, 2011 at 60 Harbor Road; [¶] 3. The defendant possessed a Taurus .40 caliber semi-automatic handgun on August 26, 2011 at 205 Harbor Road; [¶] AND [¶] 4. The defendant possessed an SKS assault rifle on November 9, 2012, at 102 Kiska Road.
"The People presented evidence regarding defendant Antonio Bowers that: [¶] 1. The defendant was with Kevin Hall and David Cunningham on April 28, 2010 in front of 778 Kirkwood Avenue. David Cunningham is alleged to have possessed a firearm on that date. [¶] 2. The defendant possessed a Taurus .40 caliber semi-automatic handgun on November 18, 2010. [¶] 3. The defendant was convicted of a felony violation of Penal Code section 487(c) on January 26, 2012, related to the November 4[,] 2011 armed robbery arrest regarding Al-Jirea Hayes.
"The People presented evidence regarding Kevin Hall that: [¶] 1. Kevin Hall possessed two firearms on December 1, 2010 at 30 Harbor Road.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged acts you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
"The defendant Joshua Pittman had the opportunity and means to have a firearm on November 4, 2010 and on June 30, 2013.
"The defendant Antonio Bowers had the opportunity and means to have a firearm on November 4, 2010.
"Do not consider the evidence for any other purpose.
"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove that the defendant Joshua Pittman is guilty of Counts 1-6 and 9-15, or that the defendant Antonio Bowers is guilty of Counts 1 or 2, or that the allegations as to either defendant have been proved. The People must still prove each charge and allegation beyond a reasonable doubt."
During trial, the court granted the People's motion to dismiss charges alleged against appellant in count 7 and 8 of the amended information.
Appellant contends that the inclusion of counts 13-15 in the instruction's reference to the pending charges against appellant was a prejudicial error because, by telling the jury that the uncharged conduct evidence was not sufficient by itself to prove guilt as to any of the counts charged against appellant, the court was also telling the jury "that it could, in fact, consider the prior gun incidents to determine whether appellant committed the charged offenses, including the offenses of witness intimidation."
The People contend that appellant forfeited this claim of error by failing to object to the jury instruction or request clarification in the trial court. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) Appellant rejoins that an objection was not required because the error affected his substantial rights. (§ 1259.) To the extent this claim is reviewable despite the failure to object, we conclude that it lacks merit.
"Faced with a claim of instructional error, we are obligated to consider whether it was reasonably likely any allegedly erroneous instruction would have led the jury to misapply the law. [Citation.] A challenged instruction is not viewed ' "in artificial isolation," ' but is considered in the context of the instructions as a whole and the entire record. [Citation.] We are also obligated to regard the jurors as intelligent and capable of understanding and correlating all instructions they are given." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1155.)
Applying these principles here, it is not reasonably likely the jury instruction quoted above led the jury to misapply the law. The instruction, when considered as a whole, made clear that evidence of appellant's uncharged conduct could be used, if at all, only to show that he had the opportunity and means to have a gun on the specific days that the two charged murders were committed. The jury was also explicitly told how not to use this evidence—that it was not to be used as proof of bad character or for any other purpose. It is not reasonably likely that the jury disregarded these explicit components of the uncharged conduct instruction and concluded instead that a sentence at the end of the instruction, which listed all of the charges that were still pending against each defendant, meant that the uncharged gun possessions could be used to prove that appellant committed witness intimidation by force or threat.
Appellant contends that "[t]he jury here had no way to know it was not supposed to use the prior gun evidence to determine if appellant had attempted to use force, duress, or threat to dissuade witnesses." We disagree with appellant's conclusion and with the way he frames the issue. The question is whether it is reasonably probable that the jury misapplied the law by interpreting the instruction the way appellant proposes here. We find no such reasonable probability. The theory and evidence presented by the prosecution to prove the witness intimidation charges had nothing to do with weapon use. Furthermore, the jury instruction made clear that if the jury decided to consider the uncharged gun evidence against appellant, that evidence could only be used to show that he had the opportunity and means to have a weapon on the days of the charged murders and that it was not to be used for any other purpose. Finally, during the prosecutor's closing arguments, he twice stated that the only reason he offered evidence of the uncharged gun possessions was to show that the defendants had access to guns. There was no claim, argument, or evidence that appellant had access to guns in 2014 when he was in jail and attempted to dissuade witnesses from testifying against him. Under these circumstances, we reject appellant's claim of prejudicial instructional error.
III. APPELLANT'S SENTENCE
Appellant challenges the trial court's finding that a first-degree robbery appellant committed when he was a juvenile qualified as a sentence enhancing "strike" under the Three Strikes Law. (§ 667, subd. (b)-(i).)
The Three Strikes law "prescribes increased punishment for a person who is convicted of a felony after sustaining one or more qualifying prior felony convictions or juvenile adjudications, which are commonly known as strikes." (People v. Barragan (2004) 32 Cal.4th 236, 239.) A prior juvenile adjudication constitutes a strike if the following conditions are met: "(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony. (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code." (§ 667, subd. (d)(3).)
"The People must prove each element of an alleged sentence enhancement beyond reasonable doubt." (People v. Delgado (2008) 43 Cal.4th 1059, 1065.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Id. at p. 1067.)
A. Background
After the jury returned verdicts regarding the current charges against appellant and Bowers, the court held a bifurcated trial regarding prior conviction allegations, and the jury found true an allegation that appellant was "the subject of a Juvenile Adjudication and was adjudged a Ward of the Court for a violation of Penal Code Section 212.5(a) FIRST DEGREE ROBBERY on August 31, 2007, in the Juvenile Division of the San Francisco Superior Court."
At a February 2017 sentencing hearing, defense counsel argued that the prosecutor failed to prove appellant's juvenile prior qualified as a strike under the Three Strike law because there was no finding by a jury either in the juvenile case or in this case that appellant was 16 years of age or older when he committed the robbery. (§ 667, subd. (d)(3)(A).) The prosecutor countered that the record of appellant's juvenile wardship case proved his age and that this factor did not need to be supported by a jury finding.
The sentencing court found that appellant's juvenile prior was a strike for the following reasons: First, robbery (§ 212.5(d)) is indisputably a serious and/or violent felony (§ 667, subd. (d)(3)(B)). Second, the jury in this case found that appellant suffered this prior juvenile adjudication pursuant to correct jury instructions; to reach its conclusion the jury was not required to make any finding regarding appellant's age at the time the offense was committed. Third, it was "up to the Court to determine whether or not the adjudication qualifie[d] as a strike." To make that determination here, the court reviewed evidence that had been presented at the bifurcated trial on the prior conviction allegations, which established beyond a reasonable doubt that appellant was at least 16 years old when he committed the robbery.
The court went on to announce appellant's sentence. As noted previously, appellant was sentenced to an aggregate term of eight years in prison for the three felony violations of section 136.1. The court imposed concurrent sentences for the three convictions because, although they were separate offenses, all were based on the same exchange of letters. The court used an aggravated four-year base term due to multiple aggravating factors, and then doubled that base term "[b]ecause the strike prior was found to be true in juvenile adjudication."
B. Analysis
Appellant's primary contention on appeal is that the federal constitution prohibits using California juvenile adjudications as sentence enhancing strikes because they are decided by courts rather than juries. As support for this claim, appellant relies on People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). Alternatively, appellant contends that his juvenile prior does not qualify as a strike because the record of that proceeding does not contain a finding by the trier of fact or an admission that appellant was at least 16 when he committed robbery, nor did the jury in the current case determine that appellant was at least 16 when he committed the robbery.
We reject appellant's first challenge because we are bound by the California Supreme Court's decision in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), and the second challenge because the juvenile court deciding appellant's wardship petition found that his date of birth was April 2, 1990 when it accepted his plea to a charge that he committed first degree robbery on April 9, 2007.
1. Nguyen and Gallardo
"The Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process also limit a judge's role in sentencing." (People v. Wilson (2013) 219 Cal.App.4th 500, 513.) "Under the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [] (Apprendi), any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt." (Gallardo, supra, 4 Cal.5th at pp. 123-124.)
In Nguyen, supra, 46 Cal.4th 1007, our Supreme Court held that using a juvenile adjudication as a strike does not violate federal constitutional jury rights or the Apprendi rule. (Id. at p. 1015.) Like prior adult criminal convictions, prior juvenile convictions do not involve facts about the current offense but instead concern "the defendant's recidivism—i.e., his or her status as a repeat offender—a basis on which courts, acting without juries, traditionally have imposed harsher sentences." (Id. at p. 1021.) Moreover, "juvenile adjudications of criminality are constitutionally fair and reliable even though the Constitution does not require jury trials in juvenile proceedings." (Id. at p. 1024.)
Thus, under Nguyen, a prior juvenile adjudication can be used to increase a maximum sentence for an adult felony offense under the Three Strikes law "even though there was no right to a jury trial in the juvenile proceeding." (Nguyen, supra, 46 Cal.4th at p. 1010.) In his opening brief in this court, appellant argued that Nguyen was wrongly decided, but conceded it was binding on this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, after this appeal was fully briefed, appellant filed supplemental briefs arguing that Nguyen was effectively overruled by the Supreme Court's recent decision in Gallardo, supra, 4 Cal.5th 120.
Gallardo was decided before appellant filed his reply brief in this case, however his appellate counsel advised this court that it took several months before she and the defense bar grasped the significance of this case.
The Gallardo defendant, who was convicted by a jury of robbery and other offenses, waived her right to a jury trial regarding an allegation that she suffered a prior assault conviction, but she disputed the People's allegation that the assault constituted a serious felony and qualified as a strike. (Gallardo, supra, 4 Cal.5th at p. 126.) This dispute arose from the fact that defendant entered a plea in the prior case, which did not definitively establish what type of assault she committed. If defendant "committed assault with a deadly weapon, the prior conviction counted as a strike; if she committed assault by any means of force likely to produce great bodily injury, it did not." (Id. at p. 125.) The trial court reviewed a transcript of the preliminary hearing in the prior case, determined that the defendant had committed assault with a deadly weapon, and sentenced her as a second strike offender. (Id. at p. 126.) The Supreme Court granted review to determine whether using defendant's assault prior as a strike violated her rights under Apprendi.
As a preliminary matter, the Gallardo court acknowledged that the trial court's method of deciding whether the assault prior constituted a serious felony was authorized by People v. McGee (2006) 38 Cal.4th 682 (McGee). (Gallardo, supra, 4 Cal.5th at pp. 123-124.) McGee, which involved a prior conviction from outside California, held that the determination whether a crime constitutes a serious and/or violent felony may include "an examination of the record of the earlier criminal proceeding . . . in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law." (McGee at p. 706.)
The Gallardo court found, however, that the type of inquiry authorized by McGee and its progeny was no longer tenable after a series of recent federal cases elucidated Sixth Amendment principles, which limit judicial fact finding with respect to prior convictions used to increase punishment pursuant to a recidivist sentencing scheme. (Gallardo, supra, 4 Cal.5th at pp. 132-134; see Descamps v. United States (2013) 570 U.S. 254 and Mathis v. United States (2016) 136 S.Ct. 2243.)
Therefore, the Gallardo court outlined a new procedure for California courts deciding whether a prior conviction constitutes a serious and/or violent felony under the Three Strikes Law: " 'The Sixth Amendment contemplates that a jury—not a sentencing court—will find' the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme. [Citation.] This means that a sentencing court may identify those facts it is 'sure the jury ... found' in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea. [Citation.] But it may not 'rely on its own finding' about the defendant's underlying conduct 'to increase a defendant's maximum sentence.' " (Gallardo, supra, 4 Cal.5th at p. 134.)
Returning to the facts in Gallardo, the Supreme Court concluded the trial court "engaged in a form of factfinding that strayed beyond the bounds of the Sixth Amendment." (Gallardo, supra, 4 Cal.5th at p. 136.) As the Gallardo court explained, in determining whether a prior conviction qualifies as a strike, the trial court may consider only a limited class of documents that "might help identify what facts a jury necessarily found in the prior proceeding." (Gallardo, supra, 4 Cal.5th at p. 137.) A preliminary hearing transcript is not within that class because "[a] sentencing court reviewing that preliminary transcript has no way of knowing whether a jury would have credited the victim's testimony had the case gone to trial." (Ibid.) Thus, the court reasoned, "at least in the absence of any pertinent admissions," the sentencing court cannot do anything but guess that a defendant who pleaded guilty to committing an assault in violation of section 245, subdivision (a)(1), was "acknowledging the truth of the testimony indicating that she committed that assault with a knife." (Ibid.)
Finally, the Gallardo court concluded that a limited remand was appropriate, so the trial court could reconsider the record to determine "what facts were necessarily found or admitted in the prior proceeding." (Gallardo, supra, 4 Cal.5th at p. 138.) In reaching this conclusion, the court affirmed a different aspect of McGee, which approved the principle "that determinations about the nature of prior convictions are to be made by the [sentencing] court, rather than a jury, based on the record of conviction." (Gallardo at p. 138; see McGee, supra, 38 Cal.4th at p. 695 ["there has been a clear expression of legislative intent that a jury play a very limited role in determining prior offense allegations and that a court, not a jury, examine records of prior convictions to determine whether the conviction alleged qualifies as a conviction under the applicable sentence-enhancement provision."].)
In the present case, appellant argues that Gallardo compels the conclusion that a juvenile prior that was not adjudicated by a jury cannot qualify as a strike. According to this theory, Gallardo undermines the "reasoning and holding" of Nguyen "so profoundly that courts can no long[er] consider its holdings to be good law." We disagree.
The Legislature has decided that the Three Strikes Law applies to a defendant who has suffered a qualifying prior juvenile adjudication. (§ 667, subdivision (d)(3).) Nguyen, supra, 46 Cal.4th 1007, squarely held that this aspect of the law does not violate a defendant's Sixth Amendment jury rights or the Apprendi rule. As recently as 2016, the Supreme Court refused to reconsider Nguyen. (People v. Landry (2016) 2 Cal.5th 52, 117, fn. 18.) Nothing in Gallardo suggests the court changed its mind about using juvenile adjudications as strikes in appropriate cases. Gallardo did not involve a prior juvenile adjudication or purport to change the law authorizing the use of juvenile priors as strikes. It addressed a different aspect of Apprendi, which limits judicial fact finding when determining whether a prior conviction constitutes a serious and/or violent felony. Thus, Nguyen is controlling law and remains binding on this court.
2. Fact Finding Regarding Appellant's Age
Appellant contends that even if a juvenile adjudication can be a strike, the trial court in this case violated Gallardo by engaging in improper fact finding. As discussed, the jury in the present case found that appellant suffered a prior juvenile adjudication and was adjudged a ward of the court on August 31, 2007, because he committed a first-degree robbery. Then the trial court concluded that this prior robbery qualified as a strike because the record of the juvenile proceeding established beyond a reasonable doubt that appellant was 16 or older when he committed the robbery.
Appellant argues that, because the age requirement for using a juvenile prior as a strike increases the punishment for a current offense, Gallardo requires a jury finding regarding the age of the juvenile when the prior was committed unless the defendant has admitted that he or she was 16 or older. It is not clear from appellant's briefs whether the jury finding that he characterizes as a requirement can be made in the current case or if he is claiming that it must have been made in the prior case.
As we have discussed, Gallardo confirms that facts relating to the circumstances of a current offense must be decided by a jury, but determinations pertaining to the nature or basis of the defendant's prior conviction are made by the sentencing court. (4 Cal.5th at p. 138.) The age requirement for using a juvenile prior as a strike pertains to the nature of that prior juvenile adjudication - i.e., when it was committed. It does not relate to the circumstances of a current offense. Thus, the determination whether this requirement is satisfied is made by the sentencing court, not the jury in the current case.
Furthermore, to the extent appellant is arguing that a sentencing court's determination about the nature of a prior juvenile adjudication must be limited to facts found by a jury in the prior case, his claim necessarily fails under Nguyen. Thus, in addressing appellant's claim of Gallardo error, we consider the principles discussed in that case as they apply in the context of prior juvenile adjudications, which are not decided by juries.
Under Gallardo, when the nature of or basis for a prior conviction is not clear from the fact of the conviction itself, the sentencing court may review the prior record to see what facts were or were not found or admitted, but it may not make its own determination regarding a disputed fact in the prior case. (4 Cal.5th at p. 134.) Thus, the issue presented by this appeal is whether the sentencing court made an independent finding from disputed evidence that appellant was 16 years or older when he committed the robbery or if that fact was established in the record of appellant's juvenile case.
The record of appellant's juvenile case established the following facts: Appellant was the subject of an April 11, 2007 juvenile wardship petition, which identified him as Joshua Jereco Pittman, also known as J.Pitt, age 17, with a birthday on 04/02/90. The wardship petition alleged that appellant committed three offenses on April 9, 2007, including first degree robbery in violation of section 212.5(a). On June 1, 2007, the juvenile court held a jurisdictional hearing on the petition where it accepted appellant's admission that he committed the robbery and that it constituted a "strike enhancement." The minute order from the jurisdictional hearing also reflects that the court made a finding that "Minor's birth date is 4/2/90." Subsequently, on August 31, 2007, the juvenile court sustained the petition allegations pertaining to the first-degree robbery and declared appellant a ward of the juvenile court.
With this record before it, the sentencing court did not violate Gallardo by concluding that appellant was 16 or older when he committed the juvenile prior. Conceivably, the age of a juvenile could be a disputed issue in a wardship proceeding, but here the record shows there was no dispute that appellant was 17 when he committed the first-degree robbery. Discounting this undisputed evidence, appellant contends that more is required to satisfy Gallardo; that the prior record must contain an adjudicated finding by the trier of fact or an admission by the minor that he was 16 or over when the offense was committed. We disagree. Moreover, and in any event, the juvenile court that adjudicated appellant's wardship petition made an express finding that appellant's birthdate was April 2, 1990, which means that he was 17 years old at the time of the April 9, 2007 robbery, to which he admitted.
Appellant acknowledges that the juvenile court's minute order from the hearing where he entered his plea to the robbery charge reflects that the court made a finding regarding appellant's date of birth. However, he argues that the fact that the juvenile court "checked a box" on a form is not equivalent to a finding by the trier of fact or an admission by appellant that he was 16 or older when he committed the robbery. Appellant misconstrues the significance of the minute order, which memorialized the juvenile court's jurisdictional findings with respect to the wardship petition, including that "Minor's birth date is 4/2/90." Appellant also overlooks the fact that this minute order memorialized his own admission that he not only committed the robbery but that it constituted a strike. Thus, even under appellant's interpretation of Gallardo, the record of appellant's juvenile adjudication is substantial evidence supportive of the finding by the sentencing court in the current case that the prosecution proved beyond a reasonable doubt that appellant was 16 or older when he committed first degree robbery.
IV. DISPOSITION
The judgment and sentence are affirmed.
/s/_________
Tucher, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Lee, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.