Opinion
E066527
01-05-2018
THE PEOPLE, Plaintiff and Respondent, v. JORY LANDON TOMS, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Tami Falkenstein Hennick, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1500507) OPINION APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge. Affirmed in part; reversed in part with directions. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Jory Landon Toms, of kidnapping (Pen. Code, § 207, subd. (a)), domestic violence (§ 273.5, subd. (a)), making a criminal threat (§ 422), and witness intimidation (§ 136.1). The People's evidence showed Toms injured and threatened his girlfriend, Jane Doe, forced her to return home when she sought help at a neighbor's home, choked her, and then stopped her from opening the door for law enforcement when they responded to the neighbor's report about the abuse. Toms denied he had used physical force against his girlfriend and said she received her injuries in a fight the day before with a woman named Crystal with whom he had been sexually involved.
Unlabeled statutory citations refer to the Penal Code.
In closing, defense counsel argued the jury should find Crystal, not Toms, injured Doe, and should therefore reject the witness intimidation charge because Toms had no reason to try to stop Doe from talking to the police. In rebuttal, the prosecution argued the jury could convict Toms of witness intimidation even if it acquitted him of the remaining charges because he knew Crystal had committed a crime and tried to stop Doe from reporting it. Toms objected the prosecutor had misstated the evidence and it was misconduct to save a new theory of guilt for rebuttal argument. The trial court gave a corrective instruction, but Toms now contends the instruction was insufficient. We hold the trial court's curative instruction was effective and therefore affirm the witness intimidation conviction.
Toms also challenges part of his sentence. The trial court found Toms had suffered three prison prior convictions and used each to add one year to his sentence. (§ 667.5, subd. (b).) However, before sentencing, Toms had succeeded in having two of the prison prior convictions reduced to misdemeanors under Proposition 47. (§ 1170.18.) Misdemeanors cannot be used as the basis for prison prior enhancements, so we reverse and remand for the trial court to correct the sentence.
I
FACTUAL BACKGROUND
A. Testimony of Jane Doe's Neighbor and a Responding Sheriff's Deputy
Jane Doe's next-door neighbor, AV, testified for the prosecution. She said Doe showed up at her home on July 4, 2015, scared and crying. When she opened her door, Doe ran to the living room toward the back of the house. Doe was reluctant to talk, but eventually said she was afraid to go home, something had happened between her and Toms, and they had argued the day before. Doe then showed AV bruises on her arm.
Toms came to AV's house about 15 minutes later, screaming for Doe and telling her she needed to go home. When Doe heard Toms, she ran to the very back of AV's house. Doe said Toms had put his hands on her and if she went home he was going to kill her. AV told Toms he had to leave and her boyfriend stood in the doorway to keep Toms from entering. Toms refused to leave without Doe, and eventually AV's boyfriend told Doe she would have to leave because he did not want his children to be exposed to the yelling.
As she was leaving, Doe asked AV to call the police because she was not sure what Toms would do to her. As they walked away, Toms grabbed her by the neck and directed her toward her house. At one point, she tried to get away from Toms, but he grabbed her by the arm and led her home.
After they left, AV called the police. The prosecution played a recording of the call for the jury. She said Doe "came over here and knocked on my door . . . she was really scared, um, she said that he's gonna kill her or something and he came over here acting all crazy, came in my house. I had to have my um, my boyfriend push him out and . . . When um, she went to talk, talk to him, she, he grabbed her and was putting hands on her out on the street, forced her inside the house and now I don't know what's going on." When AV spoke to an officer at the scene, she told the police Doe said Toms had threatened her with a knife.
Two Riverside County sheriff's deputies responded to AV's call. One of the deputies testified for the prosecution at trial. She said she and her partner pounded on a side door of Doe's home for a minute or two. When they got no response, they entered through the open front door and announced themselves. They found Toms and Doe in the bedroom at the back of the house. As the deputies removed them, Toms asked Doe, "Did you tell them I hit you? Did you call 9-1-1?"
One of the deputies then spoke with Doe away from Toms. The deputy reported Doe did not slur her words, stumble, or smell of alcohol, but she did seem confused and reluctant to talk. According to Doe, she told the deputy Toms had caused the injuries all over her body, though at trial she denied he had done so. Doe told the deputy Toms grabbed her at AV's house because he "got mad because [she] was talking to the neighbors. He doesn't want me talkin' to anybody." She reported that on the way home, Toms told her he was going to kill her, and she feared for her life. She said, when they were back at Doe's house, Toms punched her and squeezed her throat until she blacked out. She said he dragged her from the porch to the inside of her home by the back of her neck. Doe told the deputy she did not answer the door because Toms would not let her and she believed he would hurt her if she tried.
B. Testimony of Doe and Toms
As is common with domestic violence victims, Doe did not want to testify at trial and recanted some of her prior statements. She denied Toms had caused her injuries. She said she could not remember talking to law enforcement and knew what she had told them only from listening to a recording. She said she told law enforcement Toms had injured her because she was drunk and had taken anti-anxiety medication. Doe said her neighbor invited her over and they were talking when the neighbor noticed a bruise on her left arm. The neighbor asked her whether Toms had injured her, and Doe said she was not sure because they had friends over to the house the night before.
Not long afterward, she said Toms came knocking at the neighbor's door looking for his wallet and keys. Doe told him she did not have his things, but Toms asked her to come home with him. At trial, Doe said she left voluntarily, though she also indicated she had wanted to stay at the neighbor's home. According to Doe, the two went back to her house to talk about something that had happened the night before. On the way, he put his hand on her waist, "trying to look for his wallet and his keys." They proceeded to her back door, where she said she tripped over the stairs and fell. Toms then helped her into the house and into her bed. She said she heard banging on her door, but did not hear law enforcement announce themselves. She admitted telling law enforcement that Toms prevented her from answering the door, but at trial denied that is what happened. She said he did not direct her not to answer and did not threaten her.
On cross-examination, Doe testified about an incident that had occurred the day before. She said she and Toms had a few other people over to her home, including a woman named Crystal. Doe characterized Crystal as "one of his girlfriends." The group started drinking alcohol in the afternoon. At some point in the evening, Crystal and Doe got into a physical and verbal fight over Toms. Doe said when she first spoke with law enforcement she believed Toms had caused her injuries, but someone later told her what happened, and she remembered it was Crystal who had done so.
Toms' testimony largely tracked Doe's revised testimony. He said he and Doe had previously dated and reconnected around May 2015. They regularly spent time together at Doe's house from May to July 2015.
He said three friends of his came to Doe's house on July 3, 2015. One of them was Crystal, a woman with whom he had been sexually involved. The group hung out eating and drinking into the night. Around 12:00 or 1:00 a.m., Toms said he came out of the bathroom to find Crystal and Doe "on the floor, and they were hitting each other and stuff. They were all tangled up on the floor." Toms and his two other friends pulled them apart. He said he did not know why the fight occurred, but Doe was angry, and he asked his friends to leave.
According to Toms, he and Doe drank together throughout the next day. He said Doe was acting kind of distant. Around noon, Toms' friends returned and Doe left the house. Toms found her at AV's house. He said Doe came out to him, he put his arm around her waist, and they walked back home. Doe fell on the steps and lost consciousness, and Toms helped her into the bedroom. He said he fell asleep and law enforcement woke him by pulling him off the bed. He denied causing Doe's injuries and denied threatening to kill her.
C. Jury Verdict
A jury found Toms guilty of kidnapping (§ 207, subd. (a); count 3), willful infliction of corporal injury on a cohabitant (§ 273.5, subd. (a); count 4), criminal threats (§ 422; count 5), and intimidating a witness (§ 136.1, subd. (c)(1); count 6) based on the events of July 4, 2015.
The jury found Toms not guilty of willful infliction of corporal injury on a cohabitant (§ 273.5, subd (a); count 1) and criminal treats (§ 422; count 2) based on events that occurred on July 3, 2015.
The trial court found Toms had suffered three prison prior convictions (§ 667.5, subd. (b)), one serious prior conviction (§ 667, subd. (a)) that was also a strike offense (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
The trial court denied Toms' motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court sentenced Toms to an 18-year prison term, comprising a five-year sentence for the kidnapping conviction (count 3), doubled for the strike prior, a five-year term for the serious felony prior, and three one-year terms for the three prison prior convictions. The court imposed a concurrent three-year term on the witness intimidation conviction (count 6) and stayed three-year and two-year sentences respectively on the domestic violence and criminal threat convictions under section 654.
II
DISCUSSION
A. The Prosecutor's Rebuttal Argument
Toms argues the People committed prejudicial prosecutorial misconduct by misstating the evidence about a fight between Doe and Crystal and using that evidence to argue a new theory of guilt on the witness intimidation charge. (§ 136.1; count 6.) He also says the trial court failed to correct the problem by denying him sur-rebuttal time to respond as well as by ineffectively instructing the jury to cure the misconduct.
1. Additional factual background
In closing argument about the witness intimidation charge, the prosecutor focused on Toms' attempt to stop Doe from telling the police about his abuse. The prosecutor argued:
"We get to Count 6, intimidating a witness. The defendant maliciously tried to prevent or discourage Doe from making a report that she was a victim of a crime to law enforcement. [¶] [He says,] 'Don't answer that door.' [¶] She says, 'He threatened me. I believed he was going to hurt me if I went and answered that door.'
"You know at this point in time she's already told her neighbor . . . she was a victim of a crime from the day before. You also know . . . she believes that she was choked out, meaning loss of consciousness, because the defendant was squeezing her neck and caused her to lose consciousness. And you know from the defendant's own statements . . . 'Hey, did you call the police? Did you say I hit you,' right, you know that the defendant already is thinking that she's a victim and I've got to stop her from talking to the police . . . [¶] Clearly telling somebody not to talk, not to open the door, don't speak to law enforcement, right, is interfering, okay? . . .
"Defendant used force or threatened either directly or indirectly to use force; right? He's there on the bed with her; right? He already threatened to kill her and he continues to do so right there in bed. And she tells you that. That is the force. So I ask you to find the defendant guilty of that allegation."
Where the victim's and witnesses' names appear in transcripts, we substitute pseudonyms, pronouns, or the person's role to safeguard confidentiality.
Defense counsel responded by arguing Toms did not injure Doe, and instead she sustained her injuries in an earlier fight with a woman named Crystal. Counsel pointed to the People's photographic exhibits showing one injury and asked, "Did that come from my client or did it come from this little catfight scuffle? You have to determine that. Is it reasonable this injury was caused by Crystal? Absolutely." Showing the jury a photograph of another injury, defense counsel argued, "This is where my client allegedly grabbed her arm forcefully. Is that a thumbprint? . . . Was this from that fight on the 3rd with Crystal? You decide. Is it reasonable? Absolutely." This argument aimed to explain to the jury why it should find Toms did not try to stop Doe from talking to law enforcement—that he had nothing to hide.
In rebuttal, the prosecutor argued a different theory of guilt. "[L]et's take a look at Count Number 6, the witness intimidation [count]. This is the one that requires the People to prove that the defendant, when he acted, did so with the specific intent to dissuade or prevent the victim of a crime from reporting it to police. [¶] Even if you believe the defendant . . . that he was not the perpetrator of the victimization of Doe, based on his own testimony from the witness stand, he knows that Doe is a victim of a crime from Crystal. He knows it. And what are his actions? [He says,] 'Don't answer that door. Don't go to the door. I'm going to kill you if you go to that door.'"
Defense counsel objected the prosecution should not have argued the jury could base a witness intimidation conviction on evidence Toms sought to stop Doe from reporting Crystal had assaulted her. The trial court overruled the objection, and the prosecutor continued: "So let me say that again. Even if you buy this argument that there was a chick fight the night before by this mysterious Crystal, based on the defendant's own testimony, he knew that Doe was the victim of a beat[-]down by his homegirl. [He said,] 'Did you call the police? Did you tell them I hit you?' Trying to prevent her and discouraging her to make a report from law enforcement."
Defense counsel objected again and the court, without ruling, called for argument outside the presence of the jury. Defense counsel objected the only evidence concerning the fight between Doe and Crystal was that Toms walked in on the fight and broke it up. Since there was no evidence Crystal had committed a crime, the argument misstated the evidence. Defense counsel also objected the prosecutor had unfairly surprised him by articulating the theory of guilt for the first time in his rebuttal argument, when Toms would not have the opportunity to respond. The trial court sustained the objection, ruling the prosecution would not be allowed to make that argument.
Ultimately, the trial court said it would tell the jury "I'm not going to allow either attorney to argue whether or not the incident with Crystal was a theory for [count] 6." Defense counsel indicated that was acceptable and asked whether the court would tell the jury "'Please disregard any argument you heard to that extent [sic],' boom. We sit down." The court responded, "Yes. That's what I'm going to do."
When the jury reassembled, the court briefed them as follows:
"There was a disagreement amongst the attorneys prior to our break and that had to do with intimidating a witness, which is Count 6 that we're talking about now.
"There's been two general theories put forth, at least two. One was that the defendant was stopping the victim from getting up from the bed to talk to the police about the injuries or for anything that the defendant had done to her. Okay. That was kind of one theory talked about by both attorneys.
"The new theory was that he may have been stopping her from getting off the bed to—and keeping her from reporting that Crystal had done injuries to her the night before. I'm not going to allow either one of the attorneys to talk about that issue, the issue of keeping the victim from reporting to the police that Crystal had done something to her. We haven't had Crystal. We haven't had—so I'm not going to allow either of the attorneys to talk about that issue one way or the other. So that is not a theory for intimidating a witness, but you have other theories that both sides have talked about whether or not intimidating a witness did occur. But the one having to do with stopping her from reporting that Crystal had hit her the night before, I'm not going to allow either one of them to talk about that."
After the court directed the jury, the prosecutor restated the People's theory that Toms sought to intimidate Doe from telling the police she had been the victim of Toms' domestic abuse. As we noted, the jury convicted Toms of witness intimidation.
2. Analysis of Prosecutorial Misconduct
We evaluate alleged prosecutorial misconduct under the following standards. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury . . . [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44.)
In closing arguments, the parties are entitled to discuss the evidence and to comment on inferences reasonably drawn from them. (People v. Morales, supra, 25 Cal.4th at p. 44.) However, courts have recognized misconduct where prosecutors withhold a theory of guilt until rebuttal argument and where argument is based on misstatements of trial evidence. (People v. Castro (1960) 182 Cal.App.2d 255, 258-259; see also United States v. Maloney (9th Cir. 2014) 755 F.3d 1044, 1045-1046 [reversing conviction for knowing possession of marijuana with intent to distribute where prosecutor misstated evidence and argued in rebuttal that defendant "must have lied about the details of his trip because he had no luggage," allowing the jury to infer knowledge].)
The People appear to concede the prosecutor engaged in misconduct. On appeal, they do not argue the prosecutor correctly represented the jury could find Crystal had committed a crime against Doe when they engaged in a fistic encounter. Nor do they argue it was permissible for the prosecutor to wait until rebuttal closing argument to contend the jury could find Toms guilty of witness intimidation if it found he acted to stop Doe from reporting Crystal's actions to the police. Instead, they argue any error was harmless. We agree the prosecutor's closing argument was improper, and turn directly to the People's arguments that the error was harmless.
The People also argue Toms waived his appeal of the sufficiency of the trial court's jury admonition and that Toms invited the error.
The problem with Toms' contention is the trial court adequately cured the prosecutor's transgression. The court stopped the prosecution from pursuing its new theory and excused the jury so Toms could challenge its introduction. After both parties had presented their positions, the trial court ruled in Toms' favor. The court told the parties it would tell the jury "I'm not going to allow either attorney to argue whether or not the incident with Crystal was a theory for [count] 6." Defense counsel requested that the trial court instruct the jury to disregard prior argument to that effect, and the trial court agreed.
The court then instructed the jury it was not proper to find Toms guilty of witness intimidation based on the claim he had tried to stop Doe from reporting Crystal had committed a crime against her. First, the court noted the disagreement over the different bases for convicting Toms on count 6, noting at least two theories of guilt had been argued. "One was that the defendant was stopping the victim from getting up from the bed to talk to the police about the injuries or for anything that the defendant had done to her." The other (new) theory "was that he may have been stopping her from getting off the bed to—and keeping her from reporting that Crystal had done injuries to her the night before." The trial court then rejected the new theory as a basis for conviction. It explained Crystal did not testify and the facts were not developed, and concluded "that is not a theory for intimidating a witness." The court noted the parties had presented "other theories . . . whether or not intimidating a witness did occur," but explained it would not allow the parties to address the theory Toms "stop[ped] her from reporting that Crystal had hit her the night before," as a basis for convicting him of witness intimidation.
Toms seizes on the trial court's initial stumbles in dealing with the problem to suggest the curative instruction was insufficient. As Toms points out, the trial court initially overruled his objection to the prosecutor's argument. The court then stopped the prosecutor when defense counsel restated his objection and called for a sidebar without affirmatively sustaining the objection. Toms suggests the fact the trial court did not rule on that objection at the time and the fact the court did not explicitly strike the prior argument gave the jury a basis for convicting him on the new theory. We disagree.
We conclude the court's curative instruction was effective. It was enough for the trial court to tell the jury the prosecution's new theory "is not a theory for intimidating a witness." By doing so, the court plainly disapproved the new theory and directed the jury not to rely on it as a basis for conviction. The court was not required to explicitly strike the prior argument. We presume the jury followed the court's instruction and conclude the misconduct was harmless. (People v. Caldwell (2013) 212 Cal.App.4th 1262, 1274 [appellate court presumes the jury follows a curative instruction].)
B. Enhancements Based on Convictions Reduced to Misdemeanors
1. Additional factual background
The People charged Toms with two prison priors (Pen. Code, § 667.5, subd. (b)) for possessing controlled substances (Health & Saf. Code, § 11377, subd. (a)). The information alleged prison prior one occurred on or about July, 15, 2005 and prison prior three occurred on October 22, 2013.
Toms suffered a third prison prior (prison prior two in the information) for being a felon in possession of ammunition, which is not relevant to the issues raised on appeal.
On July 27, 2016, the People asked the trial court to take judicial notice of court records showing Toms' convictions. The People represented the abstract of judgment from case No. SWF012463 established his conviction as alleged in prison prior one and the abstract of judgment for case No. BAF10000431 established his conviction as alleged in prison prior three. The exhibit shows Toms was convicted of Health and Safety Code section 11377, subdivision (a) (section 11377) violations on July 19, 2005 in case No. SWF012463 and on September 8, 2010 in case No. BAF10000431. Though the dates of the convictions differ from the dates in the information, the trial court took judicial notice of the court records and found beyond a reasonable doubt Toms had suffered the two alleged prison priors for violating section 11377. The trial court then imposed a one-year enhancement based on each prior conviction.
Prior to sentencing, another division of the trial court had reduced both prison prior convictions from felonies to misdemeanors under Proposition 47. (Pen. Code, § 1170.18.) On May 26, 2015, the trial court granted Toms' first petition for resentencing and deemed his conviction for violating Health and Safety Code section 11377 in case No. BAF10000431 a misdemeanor. On August 12, 2015, the trial court granted Toms' second petition for resentencing and deemed his conviction for violating Health and Safety Code section 11377 in case No. SWF012463 a misdemeanor.
Toms argued at his sentencing hearing that the trial court could not enhance his sentence based on prior felony convictions that had been reduced to misdemeanors. Defense counsel pointed out the convictions had been "reduced for all purposes under Prop 47." The trial court responded by asking whether the convictions "were still served as prison sentences," and defense counsel agreed they had been. The trial court then imposed the enhancements notwithstanding they had been reclassified as misdemeanors.
2. Analysis of Enhancements
Toms argues and the People concede it is error for a trial court to impose a sentence enhancement based on a prior felony conviction which had already been reduced to a misdemeanor under Proposition 47. We agree. (People v. Abdallah (2016) 246 Cal.App.4th 736, 745-746.) Indeed, this court went further in People v. Evans (2016) 6 Cal.App.5th 894, review granted February 22, 2017, S239635, holding where a felony conviction has been reclassified as a misdemeanor, the trial court must strike the enhancement under section 1170.18, subdivision (k) at any time before the enhanced sentence becomes final.
The parties disagree, however, on whether the appellate record is sufficient to show the trial court imposed enhancements on the specific prior convictions Toms succeeded in having reclassified. According to the People, the record contains discrepancies on the dates of the convictions, which make it unclear whether the trial court imposed enhancements based on the two reduced drug possession charges. We are not persuaded.
For prison prior one, the only discrepancy is in the information, which put the date of his conviction approximately a year later than the abstract of judgment presented to the trial court. We regard that as a typographical error. Nothing in the record indicates Toms suffered a separate drug possession conviction in July 2006. At sentencing, the People represented the abstract of judgment from case No. SWF012463 established the conviction alleged as prison prior one in the information. The abstract of judgment itself shows Toms suffered a conviction in that case for felony drug possession on July 19, 2005. And the transcript demonstrates the trial court based its finding that Toms suffered the prison prior alleged as prior one on that abstract of judgment.
It is equally clear a different division of the trial court already had reduced the exact conviction to a misdemeanor. Though the minute order reflects a violation date of July 8, 2005, instead of a conviction date, the case number and charge are sufficient to identify the conviction. We therefore conclude the trial court erred by imposing a one-year sentence enhancement based on Toms' conviction for violating section 11377 in case No. SWF012463. As the People concede, the remedy is to reverse and remand with directions that the trial court strike the enhancement.
The same logic controls our conclusion regarding prison prior three. Again, the problem exists only in the information, which placed the prior conviction in 2013 instead of 2010. But nothing else in the record suggests Toms suffered a conviction for drug possession in 2013. The People represented the abstract of judgment from case No. BAF10000431 established his conviction as alleged in prison prior three. The abstract shows Toms was convicted of violating section 11377 on September 8, 2010 in that case. The trial court took judicial notice of the abstract and found beyond a reasonable doubt Toms had suffered the conviction identified in the information as prison prior three, and imposed a one-year enhancement based on that prior conviction.
Again, a minute order establishes a different division of the trial court had already reduced that very conviction to a misdemeanor prior to sentencing. We therefore conclude the trial court erred and we must reverse and remand to the trial court with instructions to strike the prison prior.
Because we reverse the prison prior enhancements, we need not address Toms' contention that they were not supported by substantial evidence.
III
DISPOSITION
We reverse the judgment in part, and remand to the trial court with directions to strike the prison prior enhancements imposed based on the felony convictions that had been reclassified as misdemeanors under section 1170.18, amend the abstract of judgment to reflect those changes, and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. FIELDS
J.