People v. Wells

THE PEOPLE, Plaintiff and Respondent, v. RAELYN RENEE WELLS, Defendant and Appellant.

D073814

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

July 19, 2019

ORDER MODIFYING OPINION AND DENYING REHEARING AND PUBLICATIONNO CHANGE IN JUDGMENT

THE COURT:

It is ordered the opinion filed July 19, 2019, be modified as follows:

1. On page 15, line 3, the period and closing parenthesis of the first citation in the first partial paragraph are deleted and replaced with a semicolon.

2. On page 15 the language beginning with "Based on this provision" through the opening parenthesis of the first citation in the first full paragraph is deleted and the word "see" in the citation is modified to lower case. The remainder of the citation is joined with the modified citation from the preceding paragraph to read as follows:

(1001.36, subd. (b)(3), italics added; see Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215 (2017- 2018 Reg. Sess.) as amended August 23, 2018, p. 2 [the prima facie showing provision "[a]uthorizes a court to request a prima facie hearing where a defendant must show they are potentially eligible for diversion"].)

There is no change in judgment.

The request for rehearing is denied.

McCONNELL, P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD272957)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Reversed and remanded with directions.

Lindsey M. Ball, under appointment by the Court of Appeal; Siri Shetty, 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, Michael Pulos, Kathryn Kirschbaum, Britton B. Lacy and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

IINTRODUCTION

A jury convicted Raelyn Renee Wells of assault with a deadly weapon with the intent to inflict great bodily injury. The jury also found true allegations Wells personally used a dangerous and deadly weapon and personally inflicted great bodily injury upon the victim. (Pen. Code,¹ §§ 245, subd. (a)(1), 1192.7, subd. (c)(8), 1192.7, subd. (c)(23), 12022.7, subd. (a).) Wells separately pleaded guilty to resisting an officer. (§ 148, subd. (a)(1).)

The trial court sentenced Wells to five years in state prison.!1 (CT 104)! The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)); a matching $300 parole revocation fine (§ 1202.45), which the court stayed; an $80 court operations assessment (§ 1465.8); a $60 conviction assessment (Gov. Code, § 70373); and a $154 booking fee (Gov. Code, § 29550).

Wells appeals, contending we must reverse her assault with a deadly weapon conviction because the court abused its discretion in admitting into evidence body-worn camera footage of her fleeing, which Wells asserts was unduly prejudicial and cumulative. Wells additionally contends we must reverse her assault with a deadly weapon conviction because the court erred in instructing the jury about mutual combat, which Wells asserts was not supported by substantial evidence and undermined her case for self-defense.

While this appeal was pending, the Legislature enacted sections 1001.35 and 1001.36 (Stats. 2018, ch. 34, § 24), effective June 27, 2018, to authorize pretrial diversion for defendants with mental disorders (mental health diversion statutes).² Wells contends the mental health diversion statutes apply retroactively to this case because the case is not final, and she requests we conditionally remand the matter for the court to consider whether to grant diversion to her.

Also while this appeal was pending, the appellate court in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) held the due process clauses of the federal and state Constitutions preclude a court from imposing a nonpunitive fee or assessment without first determining a defendant's ability to pay. (Id. at pp. 1164, 1168.) The appellate court further held these due process clauses require a court to stay execution of a mandatory punitive fine until the court determines the defendant has the ability to pay the fine. (Id. at pp. 1164, 1172.) Based on the Dueñas decision, Wells contends we must stay execution of the fines, fee, and assessments imposed by the court until the court determines she has the ability to pay them.

We conclude the court did not err in admitting the body-worn camera footage into evidence. We further conclude any error in instructing the jury on mutual combat was harmless. However, we agree the mental health diversion statutes apply retroactively tothis case and we reverse the judgment to allow the court an opportunity to conduct a mental health diversion eligibility hearing. In light of the reversal of the judgment, we decline to decide whether the court's imposition of the fines, fee, and assessments violated Wells's due process rights. Instead, Wells may raise this issue with the court at an appropriate time after the court considers the mental health diversion issue.

IIBACKGROUND

A

The victim, a homeless man, was lying down in a park when he heard a popping noise that sounded like a starter's pistol or a cap gun. Wells approached the victim from the direction of the popping noise and shined a bright light in his face.

The victim had a decorative staff, which he considered a prized possession. Worried Wells was getting near the staff, the victim exclaimed, "Oh, [expletive], my staff" and went to grab it. Wells replied, "Oh, yeah, [expletive] your staff," and stepped on it. This led to a brief tussle in which the victim may have pushed or swung at Wells.

After the tussle, the victim gathered his things and moved. He then noticed an unusual hot feeling in his lower back and wetness on his chest and stomach. Believing he had been shot, the victim yelled for someone to call for help.

Paramedics arrived and took the victim, who was near death, to the hospital. He had two stab wounds, one of which penetrated his chest, cut through his diaphragm, damaged his spleen, and caused his belly to fill with blood.

Meanwhile, a responding police officer drove around looking for Wells. When the officer spotted Wells walking in a nearby field, the officer activated his vehicle's lights, got out, and asked her to come over towards him. She ran and the officer chased her. During the chase, she discarded a backpack and slid under the garage door of an apartment building. She ran through the garage and exited onto a street where she discarded another backpack. She continued running until she was apprehended.

The officer retrieved both backpacks. One contained a handgun-style BB gun, CO2 cartridges, and BB pellets. The other contained a flashlight and a seven-inch knife sheathed and wrapped in a hoodie. Both Wells's and the victim's DNA were on the knife's sheath and handle. The victim's DNA was also on the knife's blade.

B

Wells testified she was shooting her BB gun at some bushes when she decided to lay her blanket down and go to sleep. She shined her flashlight around to see who was in the area. The victim threatened, "I'm going to get you in your sleep," and she confronted him. She then walked away and he threatened her again.

Wells and the victim began arguing. She did not step on his staff. During their argument, the victim swung and hit her in the head. She swung back and "grazed" him.

The two physically struggled and, "at some point, the knife was introduced." Within about 20 seconds, the victim pushed himself away and yelled that he had been shot.

Wells subsequently ran from the police officer because she was afraid of being shot and killed by the officer. She discarded the backpacks because they were heavy.

IIIDISCUSSION

A

Before trial, Wells indicated she would plead guilty to the resisting an officer charge and stipulate to ownership of the backpacks. Consequently, she moved under Evidence Code sections 350 and 352 to preclude any evidence of "anything that happened after [she] left the scene of the confrontation with [the victim]." However, the prosecutor moved to admit body-worn camera footage of Wells's flight from the police officer. The prosecutor explained the footage of her running away and discarding the backpacks was extremely probative of consciousness of guilt, particularly in light of her self-defense claim.

After viewing the footage, the court excluded most of the it, but permitted the prosecution to admit 60 seconds showing Wells's flight. The court found admitting the remaining footage would be too time consuming.

Wells contends we must reverse her conviction for assault with a deadly weapon because the court abused its discretion in admitting the body-worn camera footage of her flight. She asserts the court should have excluded the evidence under Evidence Code section 352 as unduly prejudicial and cumulative.

"A court may exercise its discretion to exclude relevant evidence 'if its probative value is substantially outweighed by the probability that its admission will ... createsubstantial danger of undue prejudice.' (Evid. Code, § 352.) ' "A trial court's exercise of discretion in admitting or excluding evidence ... will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 330.) Wells has not made such a showing in this case.

Here, the challenged flight evidence was not unduly prejudicial because it was not time-consuming, inflammatory, confusing, or misleading. (Evid. Code, § 352.)...