THE PEOPLE, Plaintiff and Respondent, v. RONNIE DARNELL MIXON, Defendant and Appellant.
B297325
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
Filed 11/5/20
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. TA141142). APPEAL from a judgment of the Superior Court of Los Angeles County, Laura R. Walton, Judge. Affirmed as modified.
Jenny M. Brandt, under appointment by the Court of Appeal, for Defendant and Appellant.
INTRODUCTION
Appellant Ronnie Darnell Mixon was convicted of burgling the home of Delmus Eugene Wilkerson, who was found suffocated to death inside it. An eyewitness to Wilkerson‘s death, Sherill Waters, testified that appellant suffocated Wilkerson and ransacked his home. She further testified that appellant‘s former codefendant, Timothy Blaxton, was present during the killing. Blaxton, testifying pursuant to a cooperation agreement with the People, denied being present for the killing but claimed he had seen appellant enter Wilkerson‘s home shortly before he was found dead. Waters and Blaxton were impeached on various grounds, including but not limited to the fact that Blaxton was testifying in exchange for a lenient plea deal. Without objection, the People introduced evidence that Blaxton‘s cooperation agreement provided that a neutral judge would review his truthfulness, and the People could revoke his plea deal if he lied.
Appellant was acquitted of murdering and robbing Wilkerson, but convicted of burgling his home. The trial court sentenced appellant to the maximum aggregate term of
On appeal, appellant contends: (1) no substantial evidence supported his burglary conviction; (2) his trial counsel was unconstitutionally ineffective in failing to object to the admission of the cooperation agreement‘s terms concerning the prospective review of Blaxton‘s truthfulness; (3) S.B. 136 requires that we strike his one-year enhancements for prior prison terms, and the striking of the enhancements requires that we remand for resentencing; and (4) the trial court violated his due process and Eighth Amendment rights by ordering him to pay $870 without determining his ability to pay; alternatively, his counsel was ineffective in failing to object on the ground of inability to pay. The People agree only that we must strike the enhancements.
We agree the one-year enhancements for prior prison terms must be stricken. We find no other error, and no need to remand for resentencing. Accordingly, we affirm the judgment as modified by the striking of the enhancements.
A. Prosecution Case
The People charged appellant with Wilkerson‘s murder (
1. Appellant‘s DNA
Wilkerson was found dead in his Compton home (a shed) on August 27, 2016, around 7:00 a.m. His possessions were in disarray, as if the shed had been ransacked. A plastic bag was found under Wilkerson‘s head. A deputy medical examiner performed an autopsy and opined that the cause of Wilkerson‘s death was suffocation. The examiner also found defensive wounds on Wilkerson‘s left hand, which was bloody.
Appellant‘s DNA was found on a hair stuck to Wilkerson‘s bloody hand. Photographs of the hair and
2. Waters‘s Identification of Appellant
Waters testified that around 4:00 a.m. on the day of Wilkerson‘s death, she was inside his home, using drugs with him. Wilkerson had previously told her that appellant had robbed him twice. Blaxton knocked on Wilkerson‘s door and asked to buy drugs. When Wilkerson opened the door to provide the requested drugs, a masked man -- whom Waters later identified as appellant -- rushed inside and pushed Wilkerson to the ground. Appellant straddled Wilkerson‘s back and wrapped a plastic bag around his head. Blaxton took some drugs from inside Wilkerson‘s home and left.
While continuing to suffocate Wilkerson, appellant said to Waters, “‘Bitch, I kill you, too.‘” She begged him not to kill her. Appellant also said, “‘I‘m doing this to this motherfucker [be]cause my baby is messed up.‘” Appellant kept the bag wrapped around Wilkerson‘s head for seven to 10 minutes. He then stood up, no longer wearing the mask (she did not see him remove it). Waters recognized appellant, whom she had known for more than 20 years.
Appellant started ransacking the shed and asked Waters, “‘Bitch, where the gun? Where the money?‘” She responded that she did not know, but she found and handed appellant Wilkerson‘s cell phone. Taking the phone and another small item, appellant left.
Waters acknowledged her memory was “[p]retty bad” and she was not wearing glasses, despite her poor vision, at the time she witnessed the attack. Further, appellant‘s counsel impeached Waters with inconsistencies between her trial testimony and her earlier statements during police interviews and the preliminary hearing. As the People acknowledge on appeal, “[o]ver the course of Waters‘s police interviews and testimony, she gave inconsistent accounts of how often she had seen appellant before Wilkerson‘s death, whether she used drugs by herself before doing drugs with Wilkerson the night of his death, how much of the masked assailant‘s lower face and neck were visible, whether she saw the masked assailant without his mask, whether the masked assailant told Wilkerson the attack was revenge for the baby being ‘messed up‘, whether the masked assailant wrapped the bag around Wilkerson‘s head for seven to ten versus 30 to 45 minutes, whether the masked assailant ransacked the shed for 45 minutes versus 90 to 120 minutes, and whether she told China that appellant killed Wilkerson.”
The People initially included Blaxton as appellant‘s codefendant on the charges of murder, robbery, and burglary. In January 2018, the People and Blaxton entered into a proffer agreement. The People agreed to refrain from using Blaxton‘s statements during the proffer session in its case-in-chief against him, in exchange for Blaxton‘s promise to respond “truthfully and completely” to all questions during the session. In March 2018, after the proffer session, the People and Blaxton entered into a cooperation agreement. Blaxton promised to “testify truthfully and completely” throughout the proceedings in exchange for the People‘s agreement to a plea deal, under which Blaxton would plead guilty to robbery and be sentenced to eight years in prison. The cooperation agreement provided, “The issue of whether or not Timothy Blaxton has in fact testified truthfully and completely will be decided by a neutral magistrate.” It further provided that if Blaxton failed to testify truthfully, the People would have the right to declare the agreement void and proceed to trial against Blaxton on all charges.
During opening statements, the prosecutor summarized Blaxton‘s anticipated testimony. Appellant‘s counsel then challenged Blaxton‘s credibility on the ground that he would be testifying in exchange for a lenient plea deal. Counsel informed the jury that “in order to get this deal,” Blaxton had “[m]iracuously” provided details to the
On direct examination, Blaxton confirmed he had entered the proffer and cooperation agreements, which were admitted into evidence. The prosecutor elicited testimony about the cooperation agreement‘s terms as follows:
“Q. And in this document, it tells you that for your truthful testimony, you will plead to one count of residential robbery and you will get eight years in state prison?
“A. Yes.
“Q. As part of your agreement as stated in this document, you were required to tell the truth?
“A. Yes.
“Q. Also stated in this document is that if you don‘t tell the truth, you could end up with charges against you?
“A. Yes.
“Q. It also states in this document that the truthfulness of your statements is not decided on by the District Attorney‘s Office, but by a neutral judge; is that right?
“A. Yes.”
Blaxton testified that around 4:30 on the morning of Wilkerson‘s death, he visited Wilkerson‘s home to buy drugs. He saw appellant using drugs outside. Wilkerson allowed Blaxton inside, where Waters was present too, and they completed the transaction. When Blaxton exited the shed, appellant suddenly entered. Looking back inside the shed, Blaxton could no longer see Wilkerson or Waters; it was as if they had “vanished.” He immediately left the scene.
Blaxton further testified that appellant had robbed Wilkerson on a prior occasion, during which Blaxton had seen appellant punch Wilkerson in the head.3 On cross-examination, he admitted that during his proffer session, a detective asked him whether he had been present during this prior robbery, and he said no. He explained that he “didn‘t give a damn” about the detective‘s questions during the proffer session because he resented the detective for interrogating him earlier. He initially claimed his promise to tell the truth did not apply to the detective‘s questions, before admitting it did.
Appellant called only one witness, his longtime friend Murray Wallace. Wallace, who was confined to a wheelchair, testified he was living in the back unit of appellant‘s home on the morning of Wilkerson‘s death. He claimed he saw appellant cooking breakfast in the front unit‘s kitchen sometime between 3:00 and 5:00 that morning.
On cross-examination, Wallace testified that appellant‘s grandson had delivered Wallace‘s breakfast to him in the back unit, from which Wallace was unable to see the front unit, and in which he had remained until 10:00 a.m. Wallace acknowledged he had long known of appellant‘s arrest, but when asked if he had ever contacted the police to tell them he had seen appellant at home around the time of the charged offenses, Wallace responded, “I was [a]sleep.”
C. Jury Instructions and Closing Arguments
The court instructed the jurors (per CALCRIM No. 200), “It is up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial.” The court further instructed the jurors (per CALCRIM No. 226), “You alone must judge the credibility or believability of the witnesses.” The court identified various factors for the jury to consider in evaluating a witness‘s credibility, including whether the witness had been “promised immunity or leniency in exchange for his or her testimony[.]” The court delivered no
In closing, the prosecutor argued that appellant committed burglary by entering Wilkerson‘s home with the intent to murder and rob him, and that appellant did, in fact, murder and rob Wilkerson. She summarized the physical evidence, including the presence of appellant‘s hair on Wilkerson‘s bloody hand, and Waters‘s testimony. She reminded the jury that Blaxton, beginning the day after the killing, had indicated appellant was present at Wilkerson‘s home. She argued, “[H]is version of what happened is pretty consistent with Ms. Waters‘s testimony, except for one glaring thing, of course. He did not say he took the victim‘s drugs.” Characterizing Blaxton as an “opportunist,” she argued Blaxton had taken advantage of appellant‘s attack on Wilkerson to steal drugs.
Appellant‘s counsel conceded Wallace‘s alibi testimony was weak, but argued the prosecution had nevertheless failed to prove beyond a reasonable doubt that appellant was present at Wilkerson‘s home at the time of the charged offenses. He argued Waters was not credible for various reasons, including the absence of evidence of appellant‘s DNA on the bag he allegedly used to suffocate Wilkerson. He argued Blaxton was not credible because he had been offered a “huge discount” on his sentence in exchange for his testimony, leading him to “say anything and everything to make it happen.” He argued Blaxton had violated his promise to tell the truth by lying that he had seen appellant
In rebuttal, the prosecutor again acknowledged that although Blaxton had denied taking anything from Wilkerson, he “[p]robably took something. After all, he pled to a robbery and took eight years.” She argued Blaxton was nevertheless credible on other matters because he had admitted being present at the scene of the killing, and he had not fabricated details to conform his account to Waters‘s. She argued Blaxton and Waters corroborated each other regarding appellant‘s presence in Wilkerson‘s home.
D. Verdicts and New Trial Motion
The jury acquitted appellant of murder and robbery, but convicted him of first degree burglary. It found true the allegation that appellant knew or reasonably should have known that Wilkerson, the victim of the burglary, was over 65 years old.
Appellant filed a motion for a new trial pursuant to
E. Sentencing
At appellant‘s April 2019 sentencing hearing, he admitted four of the eight prior prison terms the People had alleged. The People requested the maximum sentence of 11 years, comprising the upper term of six years for the burglary conviction, a one-year enhancement for the elder-victim finding, and four one-year enhancements for the admitted prior prison terms. Appellant requested a three-year sentence, relying in part on the nonviolent nature of his admittedly “lengthy” criminal history. He also relied on the following assertedly mitigating factors: (1) a history of family trauma and drug abuse; (2) familial connections, evidenced by letters of support attached to his sentencing memorandum; and (3) a history of steady employment (interrupted only by periods of incarceration), including nearly 10 years as a cook and more than 10 years as an in-home care provider.
The court sentenced appellant to the maximum term of 11 years, as requested by the People. It explained its decision to impose the upper term on the burglary conviction as follows: “The reason for that, that although the jurors -- and we‘ll never know, actually, who murdered the victim in this case, Mr. Wilkerson. [¶] But the jurors determined that
The court ordered appellant to pay $870, comprising a $500 victim restitution order, a $300 restitution fine, a $30 criminal conviction fee, and a $40 court security fee. Appellant did not object on the ground of inability to pay. He timely appealed.
DISCUSSION
Appellant contends: (1) no substantial evidence supported his burglary conviction; (2) his trial counsel was unconstitutionally ineffective in failing to object to the admission of the cooperation agreement‘s terms concerning the prospective review of Blaxton‘s truthfulness; (3) S.B. 136 requires that we strike his one-year enhancements for prior prison terms, and the striking of the enhancements requires that we remand for resentencing; and (4) the trial court violated his due process and Eighth Amendment rights by ordering him to pay $870 without determining his ability to
A. Sufficiency of the Evidence of Burglary
There was substantial evidence that appellant committed burglary by entering Wilkerson‘s home with the intent to commit murder or robbery. (See
Appellant argues we must review the sufficiency of the evidence of burglary “in the light most favorable to an acquittal of robbery and murder . . . .” Not so. The verdict on the burglary count -- and our review of the evidence underlying it -- is independent of the verdicts on the other counts. (See People v. Lewis (2001) 25 Cal.4th 610, 656 (Lewis) [“‘Sufficiency-of-the-evidence review . . . should be independent of the jury‘s determination that evidence on another count was insufficient‘“]; People v. Pahl (1991) 226 Cal.App.3d 1651, 1657 (Pahl) [“each count must stand on its own, and a verdict on one has no bearing on any other“].) As noted, there was substantial evidence appellant committed burglary.
Contrary to appellant‘s alternative suggestion, there is no inconsistency between a burglary conviction based on the substantial evidence he intended to murder or rob Wilkerson and his acquittal on the murder and robbery charges. The jury reasonably might have found he and Blaxton each entered with the intent to murder or rob Wilkerson (thereby committing burglary), but there was a reasonable doubt
In any event, even assuming arguendo that the jury convicted appellant of burglary on a factual theory inconsistent with the acquittals on the murder and robbery counts, that inconsistency does not entitle appellant to relief. (See, e.g., People v. Bell (2020) 48 Cal.App.5th 1, 9-10, 14-15 [affirming murder conviction on basis of substantial evidence that defendant fatally drove van over victim, notwithstanding inconsistency between conviction on that basis and defendant‘s acquittal on charge of hit and run causing death]; Lewis, supra, 25 Cal.4th at 654-656 [even assuming not-true finding on allegation of great bodily injury in course of robbery was inconsistent with true findings on allegations of such injury in course of burglary and attempted murder, inconsistency did not warrant reversal].) In re Johnston (1935) 3 Cal.2d 32, 36, a conspiracy case on which appellant relies, established an exception to the general rule that inconsistent verdicts do not entitle a defendant to relief on appeal. That exception, however, applies “only where, as in Johnston, an overt act alleged in a
B. Counsel‘s Failure to Object to Asserted Vouching
Appellant contends his trial counsel was unconstitutionally ineffective in failing to object, on the ground of improper vouching, to the admission of evidence that Blaxton‘s cooperation agreement provided that (1) a neutral judge would determine whether Blaxton testified truthfully, and (2) the prosecution could revoke Blaxton‘s lenient plea deal if he did not.4
“‘Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the [prosecutor‘s] argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument.‘” (People v. Rodriguez (2020) 9 Cal.5th 474, 480 (Rodriguez); see also id. at 483 [implying reliance on prestige of other government agents is likewise improper].) “[A]s [several California Supreme Court decisions] all demonstrate . . . it is not misconduct for the prosecutor to address the obvious credibility issue that will necessarily arise when an accomplice or similarly involved witness testifies in exchange for a plea agreement by eliciting the term of the agreement requiring the witness to testify to the truth rather than in favor of one side or the other. That is not ‘vouching’ in the sense of placing the prestige of the government behind the witness; rather, it is fairly informing the jury of the nature and limitations of the inducement offered. That a jury may infer the prosecutor believes the witness is testifying truthfully does not mean there has been misconduct. There is misconduct only if the prosecutor‘s questions or arguments suggest his or her belief in the witness‘s veracity is based on information to which the jury is not privy or otherwise encourage the jury to rely on the prosecutor‘s belief rather than assessing the witness‘s
“To make out a claim that counsel rendered constitutionally ineffective assistance, ‘the defendant must first show counsel‘s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel‘s deficient performance, the outcome of the proceeding would have been different.’ [Citation.] To make out an ineffective assistance claim on the basis of the trial record, the defendant must show ‘(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.‘” (People v. Hoyt (2020) 8 Cal.5th 892, 958.)
2. Analysis
No impermissible vouching occurred. The prosecutor merely moved the cooperation agreement into evidence, and elicited testimony from Blaxton confirming the existence of the challenged terms. Neither the prosecutor, Blaxton, nor the agreement itself implied that Blaxton‘s truthfulness had been reviewed or guaranteed. Thus, appellant misrepresents the evidence in arguing it conveyed an impression that Blaxton‘s truthfulness “had been vetted.” While the agreement provided for a judge‘s prospective
C. Fines, Fees, and Victim Restitution
Appellant contends the trial court violated his due process and Eighth Amendment rights by ordering him to pay $500 in victim restitution and $370 in fines and fees without first determining his ability to pay; alternatively, he contends his trial counsel was unconstitutionally ineffective in failing to object on the ground of inability to pay. He relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which concerned fines and fees, and argues we should extend that case‘s conclusions to victim restitution.
Appellant forfeited his Dueñas contention by failing to object in the trial court on the ground of inability to pay. (See, e.g., People v. Torres (2020) 47 Cal.App.5th 984, 991.) We note Dueñas was decided three months before appellant‘s April 2019 sentencing hearing.
Appellant‘s ineffective assistance claim fails because the record does not negate the possibility his counsel had rational tactical reasons for failing to object. (See People v. Hoyt, supra, 8 Cal.5th at 958.) Counsel reasonably might have concluded that Dueñas did not support an objection to victim restitution, as courts have since held. (See People v. Evans (2019) 39 Cal.App.5th 771, 777 [“Based on the significant differences in purpose and effect between victim restitution and the moneys at issue in Dueñas, we decline to extend the rule of Dueñas to victim restitution“]; accord,
D. Appropriate Disposition Under S.B. 136
As the parties agree, appellant‘s four one-year enhancements for prior prison terms must be stricken under S.B. 136, as none of his prior prison terms were served for sexually violent felonies. (
We find remand for resentencing unnecessary because the trial court imposed the maximum possible sentence. (See People v. Gastelum (2020) 45 Cal.App.5th 757, 772-773; People v. Winn (2020) 44 Cal.App.5th 859, 872-873;
We are unaware of any authority supporting appellant‘s position that he is entitled to resentencing based on mere speculation that he “might” present mitigating evidence of his post-sentencing conduct. Though appellant cites cases supporting the proposition that such evidence is
Here, the record suggests remand would be futile. In his sentencing memorandum and attached letters of support,
The four one-year sentence enhancements under
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.