Opinion
B323601
01-29-2024
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY TORRES, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA082390, Emily J. Cole, Judge.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
LAVIN, Acting P. J.
INTRODUCTION
A jury convicted defendant Johnny Torres of three crimes arising from a domestic violence incident involving Lakendra Fenix. The jury also found true the prior strike conviction allegation. Defendant contends the trial court abused its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) by failing to dismiss his prior strike conviction. He also contends the court abused its discretion by denying his motion for a mistrial based on prosecutorial misconduct. We disagree with both contentions and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The Charges
In a consolidated information filed on April 11, 2022, defendant was charged with one count of injuring a spouse, cohabitant, fiance, girlfriend, or child's parent by willfully inflicting corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a); count 1); one count of dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 2); and one count of violating a domestic violence restraining order (§ 273.6, subd. (a); count 3). Counts 1 and 2 were charged as felonies; count 3 was charged as a misdemeanor. As to counts 1 and 2, the information further alleged that defendant was convicted in 2013 of injuring a spouse, cohabitant, fiance, girlfriend, or child's parent with great bodily injury under the Three Strikes Law pursuant to sections 667, subdivisions (b)-(j), and 1170.12 (prior strike conviction). And, as to count 2, the information alleged that the prior strike conviction was a serious felony pursuant to section 667, subdivision (a)(1).
Undesignated statutory references are to the Penal Code.
2. The Trial
The trial began on April 14, 2022. Fenix was the prosecution's first witness. She testified that she has a newborn baby with defendant. On December 8, 2021, Fenix and defendant got into an argument about his other child's mother. At some point that night, defendant and his brother got into a physical fight and Fenix tried to break up the fight. She was hit but didn't remember who hit her. Her ear was bleeding but Fenix didn't remember telling the police that defendant had hit her. She also didn't remember telling the police or the 911 operator that her eye was injured. Fenix said defendant never put his hands on her before. After a portion of a body cam video was played for the jury, the court recessed the trial for a short break. Fenix did not, however, return and the court issued a body attachment for her arrest.
Deputy Sheriff Juan Arroyo testified that he responded to an emergency call involving Fenix and defendant on December 8, 2021. Arroyo wore a body cam that night and the body cam video was played for the jury during his testimony.
Marlen Licea, a law enforcement technician 911 operator, testified about Fenix's 911 call and a tape recording of the call was played to the jury. In that call, Fenix stated that she is six-months pregnant and defendant hit her. She also stated that her ear and eye are bleeding.
Defendant's brother, Jimmy Torres, testified that defendant was in a rage and he heard arguing coming from his room. After defendant asked him if "[y]ou want some of this too[,]?" he punched defendant in the face.
Detective Jeremy Carlisle was the prosecution's last witness. He was assigned to investigate the December 8, 2021, incident involving Fenix and defendant. Carlisle authenticated numerous recorded jail phone calls between defendant and Fenix. During his testimony, clips from calls made on December 10, 11, 12, 20, 21, and 22 in 2021, were played for the jury. In those calls, Fenix stated that defendant came home in a rampage, threw Fenix's phone, dragged her off the bed, and slapped her face making her ear bleed. Fenix also stated she had a black eye, a swollen face, and a possible concussion. Defendant told Fenix not to come to court, or to lie in court and say that he did not hurt her. For example, defendant told Fenix: "Yeah, well, you better tell them something else happened. It wasn't me"; "Nigga, tell them, just lie"; and "If you don't show-I think, you know what I'm saying? I think I got it better, actually, if you don't show."
Defendant testified in his own defense. Although he denied hitting Fenix, he admitted grabbing and throwing her phone. Defendant also admitted violating the protective order issued on December 10, 2021, by contacting Fenix. In addition, he admitted the prior strike conviction for injuring and causing great bodily injury to a former girlfriend.
At defense counsel's request, and outside the presence of the jurors, the court agreed to strike Fenix's entire testimony and the body cam video played during Arroyo's testimony. The court explained that there can be no mention of Fenix's testimony or her behavior "while on the stand. It has to be as if she did not testify at all; however, so there can be no comment about her conduct on the stand or her words on the stand." When the jurors returned, the court told them that it had stricken Fenix's testimony and the body cam video shown to them during Fenix's and Arroyo's testimony. The court instructed the jurors to disregard that evidence.
On April 20, 2022, the jury found defendant guilty of all three crimes. The jury also found true the prior strike conviction allegation.
3. Post-trial Proceedings
On May 9, 2022, defendant-through his appointed counsel-filed a motion to dismiss the prior strike conviction under Romero and a sentencing memorandum (Romero motion). Defendant argued that the motion should be granted because none of his current convictions are violent felonies and the prior strike conviction occurred nearly ten years ago. He admitted, however, that the prior strike conviction and one of his current convictions involved violence and that he was convicted of two misdemeanors for violating the Vehicle Code after he was released from prison in 2016. In their sentencing memorandum, the People argued that defendant's background, character, and prospects do not favor dismissal of the prior strike conviction. They emphasized that he was convicted of the current charges and four misdemeanor charges after he was released from custody in 2016 for the prior strike conviction. Before ruling on the Romero motion and sentencing defendant, the court granted his request to represent himself under Faretta v. California (1975) 422 U.S. 806.
On August 25, 2022, defendant-now self-represented- filed a non-statutory motion to vacate his convictions and for a new trial with numerous attachments (new trial motion). He argued that his convictions should be vacated because his private investigator had discovered exculpatory text messages between Fenix and Jaimee Ashley James in which Fenix denied that defendant hit her. Defendant also argued that his trial counsel's deficient representation and the omission of the text messages deprived him of a fair trial. The new trial motion did not mention the prior strike conviction.
The hearing on defendant's new trial motion and for sentencing was conducted on August 25, 2022, the same day defendant filed the new trial motion. At the beginning of the hearing, the court stated that it had read and considered defendant's motion and the attachments. During the hearing, defendant did not reference the Romero motion filed by his former counsel in May 2022. Instead, defendant argued that "new directives from Mr. Gascon" allowed the court to dismiss the prior strike conviction. Defendant noted that two mitigating factors, the remoteness of the prior strike conviction and the fact that the current crime is not violent, gave the court "the authority to exercise that new directive from Gascon."
When the court asked defendant if there was anything else he wanted to argue that was not already in his motion, defendant responded, "Just file the motion."
The court construed defendant's statements as an oral Romero motion which it then denied. The court explained that the prior strike conviction is similar to the conduct in this case and that defendant had been convicted of other crimes after 2013. In denying the new trial motion, the court found that defendant had been ably represented during the trial and the newly-discovered text messages were not exculpatory "in any way, shape, or form." The court sentenced defendant to an aggregate term of 13 years in prison, including doubling the terms imposed for counts 1 and 2 under the Three Strikes Law due to the prior strike conviction.
Defendant appeals.
DISCUSSION
1. Denial of the Romero Motion
We begin with defendant's contention that the trial court erred when it denied his Romero motion because the prior strike conviction was "stale" and almost ten years old.
A court may, in the "furtherance of justice," dismiss a prior strike conviction pursuant to section 1385, subdivision (a). A decision by the court to dismiss a prior strike conviction is reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) In ruling on a Romero motion whether to dismiss a felony conviction under the Three Strikes Law, the court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
On appeal, defendant emphasizes the purported remoteness of the 2013 prior strike conviction for injuring a former girlfriend with great bodily injury. The remoteness factor, however, is not determinative. In People v. Humphrey (1997) 58 Cal.App.4th 809, for example, the court held the trial court abused its discretion in dismissing a prior strike conviction on the sole ground it happened 20 years before the current crime where the defendant had "led a continuous life of crime after the prior." (Id. at p. 813.) The court stated "there has been no 'washing out' and there is simply nothing mitigating about a 20-year-old prior." (Ibid.) Similarly, in People v. Philpot (2004) 122 Cal.App.4th 893, 906, the appellate court held the trial court "could not overlook the fact defendant consistently committed criminal offenses for the past 20 years."
As in Humphrey and Philpot, defendant here had not led a blameless life during the approximately nine years between the January 2013 prior strike conviction and the commission of the current offenses in December 2021. According to defendant's written Romero motion, he was incarcerated for his prior strike conviction until mid to late 2016, which would explain how he had managed to remain crime-free during this time span. Then, according to the People's sentencing memorandum, in 2019 defendant was convicted of two misdemeanors, violations of sections 594 and 242, and was sentenced to 180 days in county jail. And he was subsequently convicted in 2021 of another misdemeanor, a violation of Vehicle Code section 14601.1, and served 13 days in county jail. As the court told defendant in denying his oral Romero motion, "you have prior convictions since the date of your strike. You have not remained clear of criminal conduct which does not make your [prior strike conviction] remote."
Defendant also suggests that the court erred because it failed to consider the written Romero motion filed by his former counsel in May 2022 before denying his oral motion in August 2022. We have two responses. First, as noted before, defendant was self-represented at sentencing and never referenced the motion filed by his former counsel even when the court asked him whether there was anything else he wanted to argue that was not already in the new trial motion. Second, the arguments made in the written motion filed by defendant's former counsel were essentially the same arguments that defendant made during the sentencing proceeding. And the court considered, and rejected, the arguments that the Romero motion should be granted because the prior strike conviction was too remote to be considered and his current convictions were not for violent crimes. Put differently, the court was fully aware of and properly exercised its discretion before denying defendant's request to dismiss the prior strike conviction.
In sum, the court did not abuse its discretion in denying the Romero motion.
2. Denial of the Request for a Mistrial
We turn to defendant's contention that the prosecutor committed misconduct during closing argument and the court erred in denying his request for a mistrial.
2.1. Relevant Proceedings
At the beginning of her closing argument, the prosecutor told the jury that there was enough evidence to convict defendant even without hearing from Fenix. After playing one of the clips of the jail calls, the prosecutor told the jury that the clip explains why Fenix did not return to court to complete her testimony. Shortly thereafter, the prosecutor stated, "She deliberately chose not to cooperate in this case because of the influence--" Defendant objected twice to the same statement, without indicating a specific ground for the objection. The court sustained the objections and, at defense counsel's request, instructed the jury only to consider the evidence introduced during the trial.
The prosecutor then proceeded to argue, without objection, that the detective made numerous attempts to contact Fenix after she failed to return to court and that defendant willfully violated the restraining order by contacting Fenix. The prosecutor also argued, again without objection, that defendant was manipulative during the jail calls, apologized to Fenix "at least 30 times" for what he had done to her, and manipulated Fenix into not cooperating and not holding him accountable for his actions.
After the prosecutor argued defendant did not realize that the jail calls explained what happened, including why Fenix did not return to court, defense counsel requested a sidebar. During the sidebar, counsel claimed that the prosecutor had repeatedly violated the court's ruling "that the parties are to have very limited ability to discuss Ms. Fenix's presence in court and certainly not to discuss the reasons why she may or may not have returned. So [defendant] would ask for a mistrial." In response, the prosecutor stated that her understanding was that although she could not discuss Fenix's testimony or her demeanor while testifying, she could discuss her presence in the courtroom, that she did not return, the efforts made to try to find her, and argue why she was not cooperative. The court agreed with the prosecutor and noted that the inferences drawn by the prosecutor were appropriate based on the jail calls. The court also explained that it had sustained defense counsel's prior objections because it was speculation as to what Fenix was thinking and getting too close to her court testimony which had been stricken. Because the challenge to the prosecutor's most recent statements was "geared towards the defendant's intent and the result of his intent from the jail calls," "if there is an objection to that" the court overruled the objection and denied the request for a mistrial.
2.2. The court did not err in denying the request for a mistrial.
Defendant argues that the court erred in denying his request for a mistrial following what defendant perceived to be prosecutorial misconduct. Although not entirely clear, defendant appears to contend that the prosecutor violated the court's prior ruling by implying that defendant was responsible for Fenix not returning to court to complete her testimony. We are not persuaded.
We review a ruling on a motion for mistrial for an abuse of discretion, and such a motion 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, 283.) Under the federal Constitution, a prosecutor commits misconduct when his or her behavior comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Gionis (1995) 9 Cal.4th 1196, 1214 (Gionis).) If the prosecutor's conduct does not render a criminal trial fundamentally unfair under the federal standard, that conduct is prosecutorial misconduct under California law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
"Generally, a reviewing court will not review a claim of misconduct in the absence of an objection and request for admonishment at trial. 'To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.'" (Gionis, supra, 9 Cal.4th at p. 1215.)
On appeal, defendant argues the prosecutor committed misconduct during closing argument by "repeatedly" violating the court's order prohibiting the parties from mentioning Fenix's trial testimony on a number of occasions. Excluding the argument made at sidebar, he objected only three times during the prosecutor's initial closing argument. Two of those objections did not specify the basis of the objections and, in any event, were to the same statement; the court sustained those objections and admonished the jury only to consider the evidence introduced during the trial. Accordingly, the rest of defendant's claims of prosecutorial misconduct have been forfeited. (See People v. Clark (2011) 52 Cal.4th 856, 960 [to preserve such a claim for appeal a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety].) To be sure, the lack of a timely objection and request for admonition will be excused if either would have been futile or if an admonition would not have cured the harm. (Ibid.; see People v. Hill (1998) 17 Cal.4th 800, 820.) Here, however, defendant does not argue that the court's rulings on his objections or the denial of the mistrial request rendered it futile for him to object again.
The third objection was made after the prosecutor stated defendant "needs to explain what are the reasonable explanations--". The basis for the objection was that defendant "doesn't need to explain anything." In response to the objection the prosecutor stated she would "rephrase" and the court struck the statement.
As for the colloquy at sidebar, the court explained that the prosecutor's statements did not violate the court's order. We agree. The prosecutor did not discuss Fenix's trial testimony, Fenix's demeanor while testifying, or the body cam video played during Fenix's and Arroyo's testimony, during her closing argument. Based on the jail calls and defendant's admitted violation of the restraining order prohibiting him from contacting Fenix, the prosecutor's explanations as to why Fenix did not return to court, or that defendant was responsible for her failure to return, were reasonable inferences from the admissible evidence presented during the trial.
For these reasons, the court did not abuse its discretion in denying defendant's request for a mistrial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: EGERTON, J., ADAMS, J.