Case Information
*1 Filed 12/22/16
CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
(Sacramento)
---- THE PEOPLE, C078996 Plaintiff and Respondent, (Super. Ct. No. 14F05826) v.
TOMMIE LEE KINDALL,
Defendant and Appellant. APPEAL from a judgment of the Superior Court of Sacramento County, Geoffrey A. Goodman, Judge. Affirmed as modified.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Angelo S. Edralin, Deputy Attorney General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts I and III.
A jury found defendant Tommie Lee Kindall guilty of felony battery causing serious bodily injury, misdemeanor assault, and misdemeanor domestic violence. (Pen. Code, §§ 240, 243, subds. (d) & (e)(1).) 1 After the verdicts, but before a court trial on the prior prison term enhancements (§ 667.5, subd. (b)), another trial court reduced three of defendant‟s alleged prior convictions to misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act (the Act).
The trial court presiding over defendant‟s case (Goodman, J.) subsequently found after a court trial that defendant had served seven separate prior prison terms, three of which were based on the three drug convictions (Health & Saf. Code, § 11350, subd. (a)) that had already been reduced. The court sentenced defendant to the upper term of four years for the felony battery count, and enhanced the sentence by seven years for the seven prior prison terms. The court ordered defendant to serve nine years in county jail, followed by two years of supervised release. Defendant timely appealed. 2
On appeal, defendant contends (1) his trial attorney was ineffective because he did not object to prosecutorial misconduct in argument; (2) the three prior prison term enhancements based on sentences for felonies previously reduced to misdemeanors should have been stricken; and (3) the restitution fine is incorrectly set forth in the abstract of judgment. The People agree with the latter point, and so do we.
As we explain in the published portion of our opinion, we also agree with defendant‟s second point, because at the time of the three reduced priors‟ adjudication as prior prison terms, the charges on which the prison terms were based had already been 1 Further undesignated statutory references are to the Penal Code.
2
Defendant‟s attorney requested a certificate of probable cause regarding the prison
priors, although defendant had not pleaded guilty or admitted them. Thus, there was no
basis for counsel‟s request. (Cf. § 1237.5;
People v. Meals
(1975)
reduced to misdemeanors for all purposes. Simply put, these three prior convictions were no longer previous felony convictions at the time the trial court adjudicated them as such in order to find the prior prison term allegations true.
We shall modify the judgment and affirm, directing the trial court to amend and correct abstract of judgment. 3
FACTS AND PROCEDURE
We briefly summarize the evidence as agreed by the parties. On September 2, 2014, defendant and his cohabitant, both intoxicated, argued and he kicked her in the back and then hit her with a hammer. She testified at trial that she had grabbed the hammer and her injuries were accidentally self-inflicted, but she had made contrary statements implicating defendant both to the police and to medical personnel, and there was evidence defendant communicated to her while in custody to encourage her to testify in his favor. The defense was based not only on the victim‟s in-court testimony, but also the testimony of a witness who testified he saw the victim trip and fall, causing her to hit herself with a hammer, testimony of a victim‟s advocate that the victim claimed she hurt herself, and defendant‟s testimony denying he hurt her. Defendant conceded he had been convicted of a misdemeanor when he had accidentally hit the victim in the past, claiming he had been “railroaded” into admitting a crime although he had not done anything wrong during that incident; he was impeached with two felony convictions.
The victim characterized the prior uncharged incident in August 2013 as
“[a]nother night of drunken anger and stupidity.” She denied defendant punched her in
the face several times, but admitted she had called 911, and identified photographs
3
The trial court erroneously stayed
imposition
of sentence on the misdemeanor counts,
instead of imposing and then staying
execution
of sentence on those counts, as required
by section 654. (See
People v. Alford
(2010)
A victim advocate, with a master‟s degree in counseling and a bachelor‟s degree in psychology, testified about a “cycle of violence” consisting of a building of tension in a relationship, an act of violence, and a “honeymoon phase” where the parties reconcile, and a “lot of times there is denial and minimizing” and people will “assume that it won‟t happen again.”
DISCUSSION
I
Ineffective Assistance of Counsel
Acknowledging that his trial attorney failed to object to purported prosecutorial misconduct during closing argument, defendant claims the misconduct claim is not forfeited because his attorney was ineffective in failing to object.
“ „To preserve a claim of prosecutorial misconduct for appeal, a defendant must
make a timely and specific objection and ask the trial court to admonish the jury to
disregard the improper argument.‟ ” (
People v. Linton
(2013)
To prevail in showing ineffectiveness of counsel, a defendant must show his
attorney acted below the standards of professional competence
and
that there is a
reasonable probability he would have obtained a more favorable result in the absence of
counsel‟s failings, that is, if counsel had objected and sought admonitions. (See
People v.
Ledesma
(1987)
During argument, the prosecutor began by explaining domestic abuse can be complicated because a victim may continue to love the abuser and hope things will change, and cited the victim herein as “a textbook example of the cycle of violence that the victim advocate . . . talked about.” He continued by pointing out that in the prior incident, after defendant punched the victim in the face, she recanted and claimed her face was hit by a bicycle by accident, and argued she similarly recanted in the current case. “The first time involved punches to the face. The second time is the hammer to the eye. Who knows what happens the third and fourth and fifth time. [The victim] deserves our legal protection whether she wants it or not.” (Italics added.) Later, when discussing the instruction about the uncharged incident, the prosecutor stated: “ So, in plain terms, what that means is, he did it before, he’s likely to do it again. It‟s a pattern. It‟s about dominance and control, and through these jail calls and through these emails you see that dominance and control coming through loud and clear. I‟ll do whatever you want me to do.” (Italics added.)
On appeal, defendant argues these last two passages, particularly the italicized portions, are improper speculation about future violence, references to facts not in evidence, and appealing to the jury‟s passion about community safety and what future harm might befall the victim if defendant were not convicted by this jury. We disagree that the comments were improper.
The first comment was accurately tethered to the facts of the case, showing two recantations by the victim due to her continued love for an abusive companion, and emphasized that the jury‟s duty was not to adhere to her wishes that defendant not be *6 punished, but to apply the law to the facts, thus, giving her “legal protection” even if she was willing to continue being victimized.
The second comment accurately described the effect of the court‟s instruction on the uncharged act evidence. The trial court gave the pattern instruction on the limited use of the prior domestic violence conviction (CALCRIM No. 852), in part instructing that if the jury found the prior domestic violence occurred, “you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence; and, based on that decision, also conclude that the defendant was likely to commit and did commit the charges in this case. [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charges in this case. The People must still prove each element of every charge beyond a reasonable doubt.” The court also gave an abbreviated admonition about the evidence before it was presented to the jury, again emphasizing: “You cannot convict the defendant of the current charges simply because he did some similar thing before.”
The prosecutor‟s second set of challenged comments argued that the jury could infer that defendant had a propensity to hit the victim and therefore did so on this occasion . The argument was not that the jury should convict defendant to protect society even if the jury did not find there was sufficient evidence to support the current charge.
Thus the comments were appropriate argument. Further, even if defendant‟s trial counsel were inclined to object, counsel could well conclude that objections to either of these passages would be futile, or even worse, might highlight weaknesses in the defense case. Instead, in reply to the prosecutor‟s argument, defense counsel emphasized the victim‟s drunkenness on both occasions, and her lack of credibility, arguing she made false allegations in 2013 and in the present incident. Counsel argued that defendant was the victim of the cycle of violence, based on testimony he had a disability and was *7 financially dependent on the victim. These tactics were effective, as the jury acquitted defendant of more serious charged offenses of assault with a deadly weapon (the hammer) and domestic violence with an allegation of infliction of great bodily injury. (§§ 245, subd. (a)(1), 273.5, 12022.7, subd. (e).)
The record on appeal does not establish ineffectiveness of trial counsel. II
Claim of Sentencing Error
Defendant contends that because the felony drug charges underlying three of his prior prison terms had been redesignated as misdemeanors under Proposition 47 before the priors were adjudicated, he should not have been subject to additional punishment for those three prior prison terms. (§ 667.5, subd. (b).) He contends that Proposition 47 not only entitled him to reduction of those convictions to misdemeanors, but also precluded the use of the prison terms based thereon to enhance the sentence for his current felony.
On the specific timeline presented by this case, we agree. Although defendant‟s
current crime of felony battery was
committed
prior to the reduction of the felony
offenses used to enhance his sentence to misdemeanors, which the People argue is
sufficient to qualify him for the enhancement, by the time the enhancements at issue were
adjudicated
, the offenses were misdemeanors for all purposes. The delay in the second
portion of the bifurcated trial until
after
the priors at issue were reduced resulted in the
absence of one of the essential elements of a prior prison term finding--that defendant
“was previously convicted of a felony.” (
People v. Tenner
(1993)
Proposition 47 in part provides that persons who have completed felony sentences for certain offenses may apply to have their convictions “designated as misdemeanors.” (§ 1170.18, subd. (f).) In such cases, the convictions “shall be considered a misdemeanor for all purposes.” (§ 1170.18, subd. (k).) Defendant properly invoked this provision.
In
People v. Rivera
(2015)
Here, however, because the very adjudication of the prior convictions was delayed, the instant case was in a very different procedural posture. Here, at the time the trial court was called upon (in the court trial on the priors) to find the elements of the enhancement, it could no longer properly find that defendant had sustained the prior felony convictions alleged. Instead, the three reduced felonies were misdemeanors for all purposes. Simply put, at the time of the charged priors‟ adjudication, defendant had sustained misdemeanor convictions for the three drug charges at issue rather than felonies. There was no need to “look back” and read any retrospective effect into the Proposition 47 reductions; there was only the need to acknowledge the reductions going forward, as the statute requires through its “for all purposes” language.
Defendant relies in part on
People v. Park
(2013)
As we have explained, the procedural posture of this case is different than
Park
;
indeed, it is different than any of the cases to which the parties have called our attention.
However, we find
Park
instructive in the situation we find ourselves, because here, like
Park
, three of defendant‟s prior convictions which were
no longer
previous felony
convictions were construed as felonies
going forward
merely because they were felonies
in the past.
Park
instructs that this “once a felony, always a felony” interpretation cannot
be reconciled with the “misdemeanor for all purposes” language. The dicta from
Park
cited above does not govern the instant case, because it does not speak to the
adjudication
of the priors, and the required findings regarding the convictions at issue
at the time the
truth of the allegations is found
, which is the question we must answer here. Similarly,
the case on which the People rely in their briefing to describe a “trigger date” for the
priors‟ application concerned an entirely different question than that at hand here.
*10
People v. Weeks
(2014)
Although we agree with the People that “[t]he purpose of the prior prison term
enhancement of section 667.5, subdivision (b), is „ “to punish individuals” who have
shown that they are “hardened criminal[s] who [are] undeterred by the fear of prison,” ‟ ”
(
People v. Abdallah
(2016)
Accordingly, we modify the judgment to strike the three prior prison terms erroneously imposed.
III
Correction to Abstract
An abstract of judgment must fully and accurately capture all components of a
defendant‟s sentence. (See
People v. Mitchell
(2001)
Here, the parties agree, and the record confirms, that there is a typographical error in the abstract. It states that the trial court ordered a restitution fine (§ 1202.4, subd. (b)) *11 of “$33300,” but on the record trial court ordered a fine of only $3,300. We will direct the trial court to correct the abstract when it is amended to reflect the modification of judgment.
DISPOSITION
The judgment is modified to strike the three prior prison terms previously imposed as described by this opinion. As modified, the judgment is affirmed. The trial court is directed to prepare an amended and corrected abstract of judgment and to forward a certified copy thereof to the Sacramento County Sheriff‟s Department.
/s/
Duarte, J.
We concur:
/s/
Butz, Acting P. J.
/s/
Renner, J.