People v. Dryden

60 Cal.App.5th 1007

275 Cal.Rptr.3d 267

The PEOPLE, Plaintiff and Respondent,

v.James DRYDEN, Defendant and Appellant.

H043029^*

Court of Appeal, Sixth District, California.

Filed February 16, 2021

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ashley Harlan, Deputy Attorney General, for Plaintiff and Respondent.

Jim Hee Kim, Dwyer & Kim LLP, for Defendant and Appellant.

Grover, J.

A jury convicted James Dryden of two counts of assault with a deadly weapon. He was sentenced under the Three Strikes law to 25 years to life, consecutive to 15 years. He contends that the trial court committed prejudicial evidentiary error by admitting two uncharged acts to prove absence of self-defense, and instructional error related to those acts. He also raises cumulative prejudice, ineffective assistance of counsel, and sentencing error.

We conclude that the trial court abused its discretion admitting the earlier (2007) uncharged act under Evidence Code section 1101, subdivision (b) because defendant's state of mind cannot reasonably be inferred from that remote and dissimilar act. Admitting the later (2012) uncharged act was also an abuse of discretion because the evidence was substantially more prejudicial than probative under Evidence Code section 352. But we find no due process violation, and we find the errors harmless under state law standards and not cumulatively prejudicial.

We further find no ineffective assistance of counsel and no abuse of discretion in the denial of defendant's request to reduce the convictions to misdemeanors. However, we reach a different conclusion about the denial of defendant's motion to strike his prior convictions under Penal Code section 1385. As we will explain, strict application of the Three Strikes law in this case resulted in a sentence so out of proportion to the offenses as to be an abuse of discretion. We will reverse the judgment and remand the matter for resentencing, with instructions to revisit the issue of defendant's prior strike convictions, and to implement sentencing reforms enacted during the pendency of this appeal affecting prior prison term and prior serious felony enhancements.

I. BACKGROUND

Defendant was causing a late-night disturbance in a Jack in the Box restaurant in October 2013. He was 51 years old, homeless, and intoxicated. According to witnesses, defendant became belligerent and started throwing food when a young male unwittingly took his seat in the restaurant. That male was 17-year-old L.J. who had spent the evening socializing in a nearby motel room with several friends. They encountered defendant around 2:30 a.m. after they left the room to get food.

Defendant was asked to leave Jack in the Box and in the parking lot he encountered one or more young men, including L.J., Ben, Jesse (who arrived at the restaurant by bicycle and was later involved in a stick fight with defendant), Nick (Jesse's friend and a United States Marine, also on a bicycle and involved in the stick fight), possibly Sean (also involved in the stick fight), and possibly Juan (who had been socializing with L.J., Ben, and Sean). Defendant was obstreperous and disorderly before retreating across the street toward a Wienerschnitzel restaurant. Jesse testified that defendant was kicking his leg, telling the group to "back away," and saying things like "you don't know me," and "I'll kill all of you right now." Witness accounts vary as to when the encounter became physical. Ben told an officer at the scene that he kicked defendant who was being physically aggressive as they left Jack in the Box, but at trial he testified that defendant was only verbally abusive at the outset and he did not kick him until much later. L.J. testified that he went home after defendant struck him in the face with "a stick or a cane."

Sean testified that he left the motel a few minutes after L.J. and Ben went to Jack in the Box. He went to Wienerschnitzel across the street from Jack in the Box but did not order anything. As he was walking back to the corner and not paying attention to his surroundings, he heard someone say " ‘hey, you must be one of them too.’ " He turned around and defendant hit him three times with a stick. Sean fell, and as he was getting up, Jesse and Nick approached on bicycles and started yelling at defendant. Sean walked away during the fray and returned to Wienerschnitzel. He explained to an officer at the scene, "I think he's got a real reason, but [ ] I'm not, like the dude."

Jesse testified that a short time after defendant left Jack in the Box, from his vantage point inside the restaurant he could see defendant on the other side of the street walking with a bamboo stick about four feet long. He saw defendant "bump" the front of someone he did not recognize who turned out to be Sean. Jesse testified that defendant "started wielding the stick toward" Sean, causing Sean to back up with his arms in the air. Afraid for Sean, Jesse and Nick ran across the street with their bicycles and interceded. Defendant swung the stick at Jesse, yelling " ‘[y]ou're one of them,’ " and " ‘[n]ow I'm going to come after you.’ " Jesse was struck on the back of the neck as he ducked to protect his head. The stick splintered on impact, imbedding a piece of bamboo in Jesse's skin. The stick split in two as they wrestled with it. Jesse wielded one piece of the broken stick in a defensive manner, and threw it at defendant who was coming at him. He may have struck defendant.

A motorist (who was an off-duty reserve police officer) called 911 and reported "a man with a large stick ... fighting with three other males. [¶]...[¶] Across from the Jack in the Box." In real time he saw "the man swinging the stick and the guys yelling at him." Then he observed the man with the stick "walking across the street now" and arriving "at the Jack in the Box," and the three males at the Wienerschnitzel. Then he saw the three males "going across the street [¶]...[¶] running toward[ ]" the man with the stick, and an officer (Officer Lau) arriving at the Jack in the Box. He testified at the preliminary hearing "that the person with the stick was moving forward and the other two guys were moving backward."

A Wienerschnitzel employee testified that he spoke with defendant, whom he recognized as a local homeless man, after seeing him in the Jack in the Box parking lot confronted by several young men shouting obscenities. Laughing and appearing high, defendant approached the Wienerschnitzel window and told the employee that the males wanted to start a fight but " ‘they don't know who they are messing with.’ "

The employee testified that a short while later defendant returned to Wienerschnitzel with blood on his eye and asked to use the bathroom. He was followed by three males who asked the employee to call 911. One had a stick and said he had been hit. The employee called 911, reporting "a problem with ... some drunk guy" and "gangster guys" fighting with that person. The employee was shown a still image of Ben, Sean, Jesse, Nick, and Juan captured from Officer Lau's car-mounted video camera. He recognized only Ben from that image as one of the three who came to the window, and he specifically recalled Ben saying " ‘we're going to jump him.’ " He recognized Juan from a different photograph as also being at the window that night. According to the employee, defendant crossed the street and entered Jack in the Box, the males followed defendant, and because of the way they were acting, the employee believed they were "look[ing] for further trouble."

Officers located defendant and a piece of a bamboo stick behind a retaining wall next to Jack in the Box. Defendant, Sean, Ben, Jesse, and Nick were interviewed at the scene. Defendant told Officer Lau repeatedly that he had been "rat-packed" by about "six of them" as he was returning to Jack in the Box for his metal cane. He pointed out Ben as the "main one" who told the others to "get him," and Nick (who had already identified himself to Officer Lau as a Marine) as the male who struck him in the eye with a stick while the others said "[b]ang him, bang him." He said he defended himself, although he denied striking anyone. Officer Lau determined defendant to be the aggressor and arrested him.

A forensic pathologist testified that the bamboo stick was capable of inflicting great bodily injury or death. The injuries depicted in the photos of Sean and Jesse were consistent with being struck by a bamboo stick, but the amount of force used could not be determined from the photos. The pathologist explained that although uncommon, a blow to the ear or neck area could lacerate or dissect the vertebral artery, causing death. She considered Jesse lucky given his neck injury because it "only take[s] one blow at the wrong angle" or with the "head being turned that can cause a devastating injury, which can ultimately lead to death."

Defendant was charged with two counts of assault with a deadly weapon on Sean and Jesse. ( Pen. Code, § 245, subd. (a)(1).) The information alleged he committed the offenses using a dangerous and deadly weapon (a bamboo stick) within the meaning of Penal Code sections 667 and 1192.7. The information alleged three prior felony convictions under the Three Strikes law ( Pen. Code, §§ 667, subd. (b) – (i) ; 1170.12); three prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a) ; and two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

A jury convicted defendant of the assaults including the special allegation, and the trial court found true the prior convictions. The trial court denied defendant's motion to reduce the counts to misdemeanors under Penal Code section 17, subdivision (b) and to strike the prior convictions in the interest of justice under People v....