People v. Wells

THE PEOPLE, Plaintiff and Respondent, v. JAMES CARTER WELLS, Defendant and Appellant.

F070212

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

July 16, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14903226)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Gregory B. Wagner, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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James Carter Wells (defendant) stands convicted of three crimes: inflicting corporal injury on a person with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a)),¹ assault with a deadly weapon (a brick) (§ 245, subd. (a)(1)), and misdemeanor vandalism (§ 594, subd. (a)(2)). The assault conviction includes a personal use enhancement (§ 12022, subd. (b)(1)). Defendant admitted suffering a prior strike and serious felony conviction in 1989 for first degree burglary and serving a prior prison term for a 2005 conviction under an earlier version of Health and Safety Code section 11377.²

Defendant denied an allegation concerning a 1983 conviction of second degree burglary. The trial court reviewed the record of conviction to determine whether the offense involved a residential burglary and thus qualified as a serious felony for purposes of section 667, subdivision (a). The original abstract of judgment showed a jury had found defendant guilty of first degree burglary, but the conviction was reduced to second degree burglary on appeal because the incident had not occurred at night, which was a required element in 1982, i.e., the year the crime was committed. Since multiple items in the record of conviction established the residential nature of the burglary, the trial court found the enhancement allegation to be true.

In an earlier unpublished opinion (People v. Wells (Sept. 26, 2016, F070212)), we affirmed the judgment in full. Defendant had argued (1) the trial court erred by allowing the jury to consider evidence of prior bad acts, (2) his constitutional rights were violated by the procedures used to determine the disputed prior serious felony conviction, and (3) the prior prison term enhancement was no longer valid because the underlying conviction had been reduced to a misdemeanor pursuant to section 1170.18.³ The California Supreme Court has ordered us to reconsider defendant's claims in light of People v.Gallardo (2017) 4 Cal.5th 120 (Gallardo) and People v. Buycks (2018) 5 Cal.5th 857 (Buycks).

The parties do not attempt to relitigate the claims regarding the prior bad acts evidence, and our analysis of those issues is unchanged. The People concede, and we agree, the holding of Buycks requires reversal of the prior prison term enhancement. We also accept the parties' position regarding the applicability of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which went into effect after the case was transferred back to us and gives trial courts discretion to strike prior serious felony conviction enhancements.

The remaining issue is whether the 1983 burglary conviction was properly found to qualify as a serious felony under section 667, subdivision (a). The Gallardo opinion interprets the Sixth Amendment to the United States Constitution as severely circumscribing a trial court's ability to determine the factual basis of a prior conviction. In doing so, it overturns case law that had allowed judges to consult, and draw inferences from, a variety of materials. Specifically, trial courts may no longer rely on preliminary hearing transcripts "to determine the 'nature or basis' of [a] defendant's prior conviction." (Gallardo, supra, 4 Cal.5th at p. 137.) The Sixth Amendment is now understood to prohibit "factfinding that goes 'beyond merely identifying a prior conviction' by 'tr[ying] to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.'" (Gallardo, at p. 135.)

It is apparent the trial court erred by reviewing certain documents to determine the facts underlying defendant's 1983 burglary conviction, e.g., a preliminary hearing transcript and a probation report. However, it also relied on an abstract of judgment and the appellate court opinion that reduced the conviction to a second degree offense. Under Gallardo, supra, 4 Cal.5th at page 134, "a sentencing court may identify those facts it is 'sure the jury ... found' in rendering its guilty verdict." In other words, it may examine the record of conviction to "identify what facts a jury necessarily found in the priorproceeding." (Id. at p. 137.) The question of what exactly constitutes the "record of conviction" is unresolved, but Gallardo did not overrule earlier precedent, e.g., People v. Woodell (1998) 17 Cal.4th 448, 457, to the extent such authority holds "that appellate opinions, in general, are part of the record of conviction ...."

The law in 1982 and 1983 was such that a jury verdict of first degree burglary conclusively established the residential nature of the crime. Therefore, the trial court needed only to look at the original abstract of judgment to confirm defendant had been found guilty of a serious felony. Based on our reading of Gallardo, reviewing the appellate court opinion to ascertain the legal basis for the postverdict reduction of the conviction to a second degree offense did not constitute prohibited judicial factfinding. Thus, the trial court's improper review of extraneous materials was harmless error. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and D.B. (the victim) were in a long-term romantic relationship. On April 6, 2014, they had an argument. According to the victim, defendant choked her and warned her not to "disrespect his house." When she departed from his residence in her vehicle, defendant threw a brick into the driver's side window, shattering the glass.

The victim called 911 and reported defendant had "choked [her] out" and assaulted her with a brick. Police responded to defendant's home. He waived the right to remain silent and provided his own version of the events. Defendant admitted he had been holding a brick while standing near the victim's car but claimed it had "slipped out of his hands." He denied choking the victim but admitted he had hit her in the past.

Charges related to the incident involving D.B. were tried before a jury. Defendant requested and was granted a bifurcated bench trial on the disputed prior serious felony conviction allegation. Based on the verdicts discussed above, defendant was sentenced to 15 years in prison. The sentence included consecutive five-year enhancements for each prior serious felony conviction and a one-year enhancement for the prior prison term.

DISCUSSION

1. Admissibility of Prior Bad Acts Evidence

Defendant contends the trial court erred by admitting evidence of prior misconduct. The People were permitted to elicit witness testimony regarding a 2004 incident involving defendant's ex-wife and a 2007 incident involving D.B. We conclude the trial court acted within its discretion under Evidence Code sections 1101 and 1109.

A. 2004 Window Shattering Incident

Defendant's ex-wife testified about an incident that occurred in 2004. She and defendant had been arguing about her wanting to take their son to a park. Against defendant's wishes, she and the child got into her vehicle and began to drive away. Defendant threw an object at the car, which shattered the driver's side window. The witness opined defendant's actions had been intentional.

"Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion." (People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) However, evidence of prior bad acts may be used to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, [and/or] absence of mistake or accident ...." (Evid. Code, § 1101, subd. (b).) Therefore, "when a defendant admits committing an act but denies the necessary intent for the charged crime because of mistake or accident, other-crimes evidence is admissible to show absence of accident." (People v. Whisenhunt (2008) 44 Cal.4th 174, 204.)

Evidence Code section 352 requires that the probative value of any proffered evidence not be "substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Defendant maintains theevidence should have been excluded under these guidelines. We review the trial court's ruling for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)

At trial, defendant repeated his story about the brick accidentally slipping out of his hand and into the window of D.B.'s car. Whether his actions were intentional or accidental was a material issue with regard to the vandalism charge, which required proof of malicious damage to property. (§ 594, subd. (a)(2).) The People needed to show defendant intended to do the act that caused damage to the victim's property. (People v. Moore (2018) 19 Cal.App.5th 889, 894-896.) Therefore, evidence of the factually similar incident from 2004 was relevant and admissible.

Defendant argues the evidence was "too attenuated" because of...