Filed 1/6/20 P. v. Gardner CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMY MICHAEL GARDNER,

Defendant and Appellant.

F076553

(Super. Ct. No. 2065829)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge.

Alexandr Satanovsky and J. Meera Malik, under appointments by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Jeremy Michael Gardner appeals the judgment of his conviction for petty theft with a prior theft-related conviction. He contends his trial counsel’s failure to request CALCRIM No. 316 constituted ineffective assistance of counsel. He also contends the trial court erred by sustaining a hearsay objection in violation of Evidence Code section 356. Finally, appellant contends that under Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), passed on October 8, 2019, and effective January 1, 2020, which amended Penal Code section 667.5, subdivision (b), we must strike the 4 one-year prison prior terms imposed under that provision. We disagree, and instead remand the matter for resentencing. In all other respects, the judgment is affirmed.

FACTUAL BACKGROUND

On July 7, 2016, shortly before 10:00 p.m., appellant walked into a Kmart with nothing in his hands. The closing manager was in front of the store performing some of her closing duties, and appellant asked her where the shoe department was located. The manager directed appellant to the shoe department and continued working. The manager told appellant the store would be closing in 15 minutes. Appellant walked towards the shoe department.

A few minutes later appellant walked toward the front of the store with a pair of shoes tucked under his arm. A sales associate noticed appellant had not paid for the shoes and informed him he would have to pay at the register. Appellant did not respond and continued to walk toward the doors, and the sales associate told the manager appellant was taking the shoes.

Ceres Police Department Officer Ross Bays who was outside the store attending to an unrelated manner was alerted by the sales associate that appellant had walked out with the shoes without paying for them. Bays detained appellant. Appellant had no money and no receipt for the shoes.

Surveillance footage of the evening of the incident was played for the jury. The video shows appellant walking into the Kmart with nothing in his hands and leaving with the shoes under his arm.

Appellant testified in his own defense. Appellant testified he went to the store to return the shoes. He said when he walked into the store, the shoes were tucked into his waistband on the righthand side near the rear under his shirt. Appellant said he put the shoes in his waistband because he had just smoked a cigarette outside the store and had needed both hands free. Appellant said he did not make the return because he did not think he would have time to do so because he was told the store would be closing.

Bays testified in rebuttal. Bays testified that after he detained appellant, appellant told him he entered the store to make a return but left when he found out the store was closed. After watching the surveillance footage, Bays gave appellant a Miranda advisement and spoke to him again. Appellant then said he entered the store to make an exchange (not a return) carrying the shoes in his hand. When Bays told appellant he had seen the surveillance footage that showed appellant had nothing in his hands, appellant said, “Oh, maybe they were in my waistband.”

PROCEDURAL BACKGROUND

Appellant was charged by amended information with petty theft with a theft-related prior conviction in violation of section 666. It was also alleged appellant had four prior prison terms within the meaning of section 667.5, subdivision (b).

Appellant’s first trial resulted in a hung jury with a vote of 10-2 in favor of guilt.

In the second trial, a jury found appellant guilty of petty theft. A bifurcated court trial was held with regard to the theft-related prior and the prison priors. The court found all prior allegations true.

Appellant was sentenced to the lower term of 16 months on the theft and four consecutive one-year terms for each of the prison priors. Appellant’s total prison sentence was five years four months.

DISCUSSION

I. Ineffective Assistance of Counsel Claim

At trial, on direct examination, appellant admitted he had a prior conviction for auto theft. On cross-examination, appellant was impeached with three prior convictions: auto theft in 2012; assault with a deadly weapon resulting in great bodily injury in 2009; and false impersonation in 2007. Appellant contends his trial counsel’s failure to request the court instruct the jury with CALCRIM No. 316, which instructs the jury they may consider appellant’s felony convictions only in evaluating the credibility of his testimony, constituted ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim, appellant must establish that (1) the performance of his trial counsel fell below an objective standard of reasonableness and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569.) “When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (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. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

Appellant has not shown the second Strickland prong has been met. Even if we were to assume defense counsel’s representation was deficient in not requesting a CALCRIM No. 316 instruction, appellant was not prejudiced. Appellant claims the record demonstrates prejudice because he did not testify in the first trial, and thus, the disclosure of appellant’s prior convictions was allegedly the only material difference between the first and second trials. Appellant contends his claim of prejudice is confirmed by a note the court received in the second trial from a juror that asked that all jurors’ personal information be protected and all notes be destroyed and that the jurors were concerned for their personal safety. The note added that all jurors shared the same concern.

First, we refuse to speculate that the disclosure of appellant’s prior convictions was the cause of the jurors’ concern. We cannot determine from the record why the jurors felt this way. However, even if we assume the jurors were concerned because of the disclosure of the convictions, we do not find the failure to request CALCRIM No. 316 made any difference in the verdict or that the jury would not know how to treat appellant’s prior felony convictions. There is no evidence, even taking into account the jury’s concern, that the jury treated the prior convictions as propensity evidence to establish appellant’s guilt.

The jury was properly guided on how to assess a witness’s credibility using CALCRIM Nos. 105 and 226. One of the factors the jury was informed it could consider was whether a witness has been convicted of a felony. (CALCRIM Nos. 105, 226.) The prosecutor reinforced this concept during closing arguments, telling the jury it could consider appellant’s felony convictions to evaluate his credibility. (See People v. Farnam (2002) 28 Cal.4th 107, 151 [prosecutor’s argument reinforced the “correct import” of instruction regarding prior convictions]; People v. Young (2005) 34 Cal.4th 1149, 1202 [appellate court “must consider the arguments of counsel in assessing the probable impact of the instruction on the jury”].) Further, this was a final thought in the prosecutor’s closing argument which followed a thorough explanation of the People’s theory of how the evidence supported each element of the crime, as well as attacks on appellant’s credibility that were not related to his prior convictions. The prosecutor never suggested the felony convictions could be used for any improper purpose.

Further, the jury was not instructed they could use appellant’s prior convictions to convict him. Rather, they were instructed they had to find each element of petty theft beyond a reasonable doubt. (CALCRIM Nos. 220, 1800.) We presume the jury follows all instructions and do not find the note expressing fear for their personal safety gives us any reason to believe the jurors did not follow those instructions. Because we find the jury was properly instructed and it was not reasonably likely they used appellant’s prior convictions in an improper way, we do not see the fact that the jury in appellant’s first trial could not come to a conclusion about his guilt is evidence of prejudice.

We also note the court analyzed the admission of appellant’s prior convictions for impeachment pursuant to Evidence Code section 352 and excluded the convictions too close in time or too similar so that appellant would not be unduly prejudiced. The trial court determined the auto theft was a different enough crime from the charged offense to be admitted and excluded a second degree burglary conviction because it was too similar to the charged offense.

We conclude it is not reasonably probable that appellant would have obtained a more favorable result had CALCRIM No. 316 been given. (Strickland, supra, 466 U.S. at pp. 694‒695.)

II. Evidence Code section 356

During defense counsel’s cross-examination of Bays, the following exchange occurred:

“[Defense counsel:] Okay. And [appellant] was cooperative with your investigation, right?

“[Bays:] Yes.

“[Defense Counsel:] He answered all the questions that you had for him?

“[Prosecutor:] Objection. Calls for hearsay.

“[Court:] The fact that he answered questions? That’s overruled.

“[Defense Counsel:] So he answered all the questions that you had for him, right?

“[Bays:] Yes.

“[Defense Counsel:] And did you ask him about the pair of shoes that he was holding?

“[Bays:] I did.

“[Prosecutor:] Objection. Calls for hearsay.

“[Court:] Well, that doesn’t, but I’m assuming the next question is going to. [Defense counsel]?

“[Defense Counsel:] And did he tell you why he had those shoes?

“[Prosecutor:] Objection. Calls for hearsay.

“[Court:] That’s hearsay. So you can answer the first question. Did you ask him?

“[Bays:] Yes.

“[Court:] Any further question would call for hearsay at this point.”

Appellant’s trial counsel later asked Bays whether appellant stated that he was “hoping to return the shoes.” The prosecutor again objected, and the trial court sustained the objection as hearsay. There was an unreported sidebar, and appellant’s counsel asked no further questions on the topic.

Appellant contends the trial court erred by sustaining the hearsay objection which led to the exclusion of the statement that appellant told Bays he had the shoes because he was going to return them. Appellant contends the trial court sustained the objection in violation of the rule of completeness codified in Evidence Code section 356.

We apply “the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question [citations].” (People v. Waidla (2000) 22 Cal.4th 690, 725.) “ ‘[A] trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)

Evidence Code section 356 provides that “[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. (People v. Williams (2006) 40 Cal.4th 287, 319.) “ ‘Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which “have some bearing upon, or connection with, the admission … in evidence.” ’ ” (Ibid.)

Appellant contends the statement that he was at the store to return the shoes was admissible under Evidence Code section 356 because he claims it was in response to Bays’s question about whether he had a receipt, suggesting it was offered as an explanation and thus had some bearing upon or connection with the admitted statement appellant did not have a receipt. Appellant’s claim is not supported by the record. We do not find appellant’s statement he was going to make a return had any bearing upon or connection with the statement he did not have a receipt based on the context of the entire exchange between Bays and appellant.

Appellant cites the transcript of the first trial to support his claim that appellant responded to Bays’s question whether he had a receipt with the statement that he was going to return the shoes. In the first trial, Bays testified: “I asked him if he had any proof of ownership of the shoes—receipt or anything. He had mentioned to me that he was at the store to return the shoes. I made an assumption that he would then have a receipt as well to return the shoes, if he were going into the business to do that.” (Italics added.) The prosecutor then asked Bays, “Okay. Did he have a receipt?” Bays responded, “No, he did not.” We do not read Bays testifying that appellant “had mentioned” to him he was at the store to return the shoes as a response to Bays’s question about whether he had a receipt. Rather, because of the verb tense used, it seems more reasonable that Bays was explaining why he asked appellant if he had a receipt: that appellant had previously mentioned he was there to return the shoes, and Bays was investigating this claim by asking for proof of ownership.

The probation report confirms our reading of Bays’s testimony and provides more context to the exchange between Bays and appellant. The probation report indicates appellant’s comment about wanting to return the shoes was a spontaneous statement appellant made immediately upon Bays’s contacting and detaining him. Bays then spoke with Ferreira and Johnson and watched the surveillance footage. After doing so, Bays approached appellant, read him the Miranda warning, and appellant agreed to speak with him. Appellant told Bays he had the shoes in his hands when he entered the store. Upon Bays telling appellant that he had viewed the surveillance footage and appellant had nothing in his hands, appellant said, “Oh maybe they were in my waist band.” It was at this point that Bays asked appellant if he had a receipt, to which appellant said he did not. Bays also asked appellant if he had any money, which appellant also denied.

The record shows the statements regarding the return were not, as appellant claims, “apparently immediate … follow-up responses” to the questions regarding whether appellant had a receipt or money. There is nothing in the record to suggest appellant’s statement that he was going to return the shoes was offered in explanation of why he did not have money or a receipt, as appellant suggests. Thus, the statement that appellant wanted to make a return was not required to make understood the statements he did not have a receipt or money. In context of the exchange between appellant and Bays, the statement that appellant was going to make a return does not have any relationship with whether appellant had a receipt; presumably, if one were to make a return, they would bring the receipt for the item. In reality, appellant gave no explanation to Bays for why he did not have a receipt. Appellant did not say he lost the receipt, left it at home, did not get one, or even that he left the store without making the return because he realized he did not have his receipt. Similarly, appellant gave no explanation as to why he had no money, such as he had just used it to purchase the shoes or that he was planning on returning or exchanging the shoes. Accordingly, the exclusion of appellant’s statement he planned to return the shoes did not create an impression that was misleading to the jury.

Appellant was not prevented from offering his explanation through his own evidence and argument at trial. The trial court did not abuse its discretion by excluding the statement that appellant planned to return the shoes as hearsay.

III. Senate Bill No. 136

In October 2019, the Legislature passed Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), amending section 667.5, subdivision (b). Prior to these amendments, “[i]n sentencing a defendant for a new felony offense, a one-year sentence enhancement under section 667.5, subdivision (b) [was] applied ‘for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 889.) The only exception was for defendants who had remained free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Ibid.)

Senate Bill No. 136 amends section 667.5, subdivision (b) to state that a one-year term under that section shall be imposed “for each prior separate prison term for a sexually violent offense ….” Thus, Senate Bill No. 136 eliminates the prior prison term enhancement except in cases involving sexually violent offenses.

We requested supplemental briefing from the parties addressing whether the amendment is retroactive to appellant and if so, what the proper disposition in this case is. The parties state, and we agree, that the amendment applies retroactively to appellant.

None of appellant’s prior convictions were for a sexually violent offense. Accordingly, under section 667.5, subdivision (b), as amended, appellant would not qualify for the imposition of the one-year enhancements for his four prior prison terms.

Senate Bill No. 136 is effective January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(2).) As of that date, appellant’s conviction will not yet be final, and the remittitur will not have issued. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed”].)

Section 667.5, subdivision (b), as amended, applies retroactively to appellant, because the amended statute leads to a reduced sentence. (See People v. Brown (2012) 54 Cal.4th 314, 323–324; In re Estrada (1965) 63 Cal.2d 740, 745, 748 [for a non-final conviction, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”].)

Appellant requests we strike the enhancements and order the lower court to release him as he will have served his base sentence without the enhancements, encouraging us to apply the same analysis employed by the California Supreme Court in People v. Nasalga (1996) 12 Cal.4th 784 (Nasalga). In Nasalga, the defendant pleaded guilty to felony grand theft and was sentenced to a two-year sentence enhancement for loss to the victim that exceeded $100,000 pursuant to former section 12022.6, subdivision (b). (Nasalga, at p. 788.) Before the judgment became final in the defendant’s case, section 12022.6, subdivision (b) was amended to reduce the punishment from two years to one year. (Nasalga, at p. 789.) The court found the amendment to apply retroactively to the defendant. (Id. at p. 798.) On the issue of whether the matter should be remanded for resentencing rather than the enhancement be automatically reduced to one year, the court held a remand under the circumstances of the case “would serve no purpose.” The defendant in Nasalga had been sentenced to the low term for her substantive offense pursuant to a plea bargain. (Ibid.) The People had met their burden of proving the defendant stole $124,000, which would make her eligible only for the one-year enhancement and “there is nothing additional to prove under the amended version of the enhancement that was not already proved at trial.” (Ibid.)

Nasalga is distinguishable. Unlike in Nasalga, we are not convinced resentencing “would serve no purpose.” Here, though the trial court must strike the enhancements imposed pursuant to section 667.5, subdivision (b), it should be permitted to reconsider the punishment imposed on appellant’s base term in light of the amendment. At sentencing, the trial court noted the facts of appellant’s substantive offense were minor and that his “criminal history [was] terrible.” In light of those circumstances, the trial court sentenced appellant to the mitigated term on the substantive offense, but expressly declined to strike any section 667.5, subdivision (b) priors because of appellant’s lengthy criminal history and poor record of completing probation or parole in the past. The record demonstrates the trial court carefully balanced the circumstances of the case and appellant in arriving at what it considered an appropriate aggregate sentence for appellant. Had section 667.5, subdivision (b) been amended at the time of sentencing, the trial court may have considered appellant’s criminal history and conduct on probation and parole as aggravating factors in declaring a sentence for appellant’s substantive offense. (See Cal. Rules of Court, rule 4.421.)

Therefore, we remand for resentencing so the trial court can reconsider the entire sentencing scheme while striking the one-year priors. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 [on remand for resentencing a trial court is “[n]ot limited to merely striking illegal portions” of a sentence but “may reconsider all sentencing choices,” “because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components”]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1258 [trial courts are generally “afforded discretion by rule and statute to reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court”].) We express no opinion on how the trial court should resolve this issue.

DISPOSITION

The matter is remanded for resentencing pursuant to the views expressed in the opinion. In all other respects, the judgment is affirmed.