Filed 1/23/20 P. v. Hayes CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER LIND HAYES,
Defendant and Appellant.
B291055
(Los Angeles County
Super. Ct. No. MA066467)
APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Modified and affirmed.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
The jury found defendant and appellant Christopher Lind Hayes guilty of assault with an assault weapon (Pen. Code, § 245, subd. (a)(3) [count 2]), assault with a deadly weapon (§ 245, subd. (a)(1); [count 3]), vandalism with damage over $400 (§ 594, subd. (a); [count 6]), three counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); [counts 7, 11, 15]), shooting at an inhabited dwelling (§ 246; [count 10]), and recklessly causing a forest fire (§ 452, subd. (c); [count 14]). As to count 2, the jury found true the allegation that Hayes personally used an assault weapon. (§ 12022.5, subd. (a).)
In a bifurcated trial, the trial court found that Hayes had suffered a prior strike conviction pursuant to the three strikes law (§§ 667, subd. (b)–(i), 1170.12), had served four prior prison terms pursuant to section 667.5, subdivision (b), and had a prior serious felony conviction pursuant to section 667, subdivision (a)(1).
The trial court sentenced appellant to state prison for a total term of 50 years 8 months, as follows: In count 2, the trial court imposed the upper term of 12 years in prison, doubled to 24 years as a second strike, plus the high term of 10 years for the personal weapon use allegation (§ 12022.5, subd. (a)), plus 5 years for the prior serious felony conviction under section 667, subdivision (a)(1), plus 1 year for the prior prison term under 667.5, subdivision (b). The court also imposed and stayed three 1-year prior prison term enhancements. Hayes was sentenced to consecutive terms of two years in count 3, one year four months each in counts 6, 7, 14, and 15, and three years four months in count 10. It imposed and stayed a sentence of one year four months in count 11 pursuant to section 654.
Hayes contends that (1) the trial court violated his constitutional rights by revoking his pro per status, (2) the trial court abused its discretion by restraining him in a safety chair, (3) the trial court abused its discretion by admitting evidence that he kicked his former attorney, (4) defense counsel had a conflict of interest, (5) the prosecution’s expert witness improperly testified that Hayes’s version of events was not believable, (6) the trial court gave conflicting oral and written instructions to the jury in count 2 for assault with an assault weapon, (7) the instruction on assault with a deadly weapon in count 3 included an invalid legal theory, (8) the trial court abused its discretion by denying his motion to substitute counsel, (9) counsel rendered ineffective assistance by failing to present all mitigating factors at sentencing, (10) counsel rendered ineffective assistance by failing to properly inform the trial court that it had discretion to impose the sentence in count 15 concurrently, (11) counsel rendered ineffective assistance by making an oral, rather than written, Romero motion, and (12) the cause should be remanded to allow the trial court to determine whether to exercise its discretion to strike the five-year prior conviction enhancement under section 667, subdivision (a). Hayes requests an evidentiary hearing on the violation of his Sixth Amendment right to self-representation, conflict-free and effective assistance of counsel, and due process. In supplemental briefing, Hayes further argues that the matter should be remanded to the trial court to strike the one-year prior felony conviction enhancements under 667.5, subdivision (b), in light of recently enacted Senate Bill No. 136 (Senate Bill No. 136) (Sen. Bill No. 136 (2019–2020 Reg. Sess.) § 1), which modified subdivision (b) such that the enhancement now applies only when the prior conviction was for a sexually violent felony.
Following our review of the record, we sent a letter to the parties inviting supplemental briefing regarding whether section 654 barred the imposition of multiple sentences for possession of the same firearm on multiple occasions as alleged in counts 7 and 15. The parties agree that the sentence in count 15 must be stayed pursuant to section 654.
We modify the judgment to reflect that the sentence in count 15 is stayed and the four 1-year prior felony conviction enhancements under 667.5, subdivision (b) are stricken. We affirm the trial court’s judgment as modified.
FACTS
In August of 2014, Hayes dug through the trash at the 1000 Trails Campground in Acton, California. 1000 Trails employee Allen Thompson confronted Hayes and informed him that going through the trash was against campground rules. Hayes made a rude gesture and said that the rules did not apply to him. Allen notified park rangers, who removed Hayes from the campground.
In September of 2014, Janice Burton overheard Hayes saying it was stupid that he had been kicked out of the campground for going through the trash, and that he planned to slash Allen’s tires and smash his windows.
Hayes’s 1000 Trails membership for the last quarter of 2014 was suspended in December because of his involvement in the theft of a door. Hayes was told not to enter the park while his membership was suspended, but did so anyway, resulting in his park membership being terminated in December 2014, by park manager Catherine Fiore.
In early January of 2015, Hayes vandalized Allen’s motorhome and vehicle on multiple occasions. (Count 6.) Allen’s grandson, James, came to stay with him to help prevent the vandalism and catch Hayes.
On January 24, 2015, Hayes returned and broke more of the motorhome’s windows. (Count 6.) James chased Hayes, who turned around and slashed at James with a knife. (Count 3.) Hayes told James that he had a firearm and that if James did not stop chasing him he would kill James. James continued pursuing Hayes until he heard a gunshot and saw a round strike next to him. (Counts 2 & 7.) James owned an SKS rifle and the gunshot sounded similar.
In early March of 2015, James encountered Hayes at the Acton Market and recognized him as the person who had assaulted him. James told Hayes that Allen said hi. Hayes responded, “He needs to be out of there by tomorrow. And if he doesn’t get out of there, he’ll go back and finish the job.” The two got into a physical fight.
On July 5, 2015, Catherine Fiore was in her home in 1000 Trails when she heard what she believed to be fireworks. She looked outside but did not see anything. Park rangers Ross Miranda and Erica Mendoza were in the ranger booth and heard loud booms. Miranda realized that someone was shooting at them, and they called the police. (Counts 10 & 11.) No suspect was located.
On or about July 6, 2015, Fiore closed her closet door and a bullet fell out. Two deputies, one of whom believed the bullet was either a 7.62 or 308, took possession of it, but later lost the bullet. Also on or about July 6, 2015, Frank Fiore, Catherine’s husband, discovered bullet holes in his car and a bullet on the driver’s side floorboard. The bullet was given to a deputy who booked it into evidence. (Counts 10 & 11.)
On July 8, 2015, firefighters responded to a wildland fire at the campsite where Hayes was living. (Count 14.) Hayes returned to the campsite after firefighters arrived. He told a detective that he had met a man named George who smoked cigarettes and threw the butts around the campsite. He told George that he didn’t like it and to stop. George had been at the campsite when the fire started. Hayes had left to make a phone call. An SKS with detachable magazine was found near the campsite close to Hayes’s belongings. (Count 15.) Hayes said all of the property at the campsite was his.
DISCUSSION
Revocation of Hayes’s Pro Per Status
Hayes first contends that the trial court erred when it revoked his right to represent himself, and that the error is per se reversible. We conclude that the trial court—which made a thorough statement of its ruling that was grounded in the record and allowed Hayes to respond at length—did not abuse its discretion.
Proceedings
On September 15, 2015, the trial court granted Hayes’s request to represent himself. In a hearing on June 30, 2016, the trial court announced a tentative ruling to revoke Hayes’s pro per status. The trial court had reviewed Hayes’s file following an outburst in a prior hearing on June 16, 2016, including his conduct in the trial court’s department, previous court departments, and the Sheriff’s Department. The trial court detailed Hayes’s extensive record of misconduct in each of these environs.
With respect to the men’s central jail, on March 15, 2016, Hayes was segregated and lost privileges for “creating disturbances, operational disturbances, insubordination, refusal, delaying in a lockdown, insubordination, disrespect to the staff, insubordination, refusal to follow orders . . . recalcitrant inmate.” Hayes refused to obey lockdown orders, resulting in delay and the return of other inmates, which created safety concerns for officers.
On March 21, 2016, Hayes created an operational disturbance, and was cited for insubordination and refusal to follow orders. Hayes refused to be loaded on a bus, which delayed loading and interfered with courtroom operations.
On May 25, 2016, Hayes’s mother was removed from the visitor’s list because he had been misusing her role as a legal runner to pass him contraband; Hayes’s mother had been warned that she was violating the rules but continued to bring Hayes items that did not pertain to his case. Hayes also demanded that an officer sign a form, became verbally defiant, and refused to return to housing. There was a notation indicating this was the fourth time that Hayes refused to follow basic orders and that he had no respect for authority. Hayes’s actions resulted in a 20-minute delay for attorneys waiting to meet with other inmates.
In a prior judge’s courtroom, Hayes became defiant with a bailiff, and refused to leave counsel table despite orders. Hayes refused to leave until the judge returned to the courtroom and signed his motions. Hayes was ordered to stand multiple times and refused. He complied only after he was told that force might have to be used if he caused further courtroom delays. After leaving the courtroom, Hayes continued to be noncompliant and refused to exit his cell until he spoke with a sergeant. When informed that no sergeant was available, Hayes continued to refuse to leave, causing a 15-minute delay of the “operations of other custodies at the close of the business day.”
On December 7, 2015, Hayes refused to comply with the bailiff’s directive and interfered with courtroom proceedings.
On December 8, 2015, Hayes refused transport to court and an extraction order had to be issued to remove him from his cell.
On February 16, 2016, Hayes was admonished that refusing transport to the court could be a basis for revocation of pro per privileges.
On March 21, 2016, Hayes refused to enter the courtroom until he could speak with a sergeant and was warned that his refusal to comply with sheriff’s directives would likely result in his pro per status being revoked. Hayes was also advised that he could be deemed to have voluntarily absented himself from proceedings. When Hayes returned to the courtroom, he continued to interrupt the court despite warnings.
On April 27, 2016, Hayes failed to comply with sheriff’s directives and was given yet another warning that this could be a basis for revoking his pro per status.
On May 10, 2016, Hayes was admonished regarding frivolous and repetitive motions, after making numerous motions that had “repeatedly [been] heard, argued and denied.”
On June 8, 2016, Hayes was admonished regarding refusal to obey sheriff’s directives.
On June 16, 2016, the trial court admonished Hayes that noncompliance in the pro per unit and being uncooperative with the sheriffs both in the courtroom and in housing could be a basis for revoking pro per status. The trial court warned Hayes not to interrupt the court, yet Hayes continued interrupting, stating that the trial court was breaking the law, and “to keep it up and that [the trial court] will be in prison.”
The trial court tentatively ruled:
“Your entire history, Mr. Hayes, shows one of insubordination, refusal to comply with any kind of authority. Other measures have been tried, repeated admonishments. You have been given multiple opportunities.
“The misconduct has carried over not just in this courtroom . . . but prior courtrooms that you have been in, noncompliance with the sheriff’s directives both here in this courthouse as well as the housing unit.
“So based on the totality of this, the court feels that all avenues have been exhausted, which is why I am giving you the tentative of revocation.”
Citing to People v. Carson (2005) 35 Cal.4th 1 (Carson) and Ferrel v. Superior Court (1978) 20 Cal.3d 888 (abrogated on other grounds in People v. Butler (2009) 47 Cal.4th 814, 826), the trial court explained that pro per privileges can be revoked when past disruptions indicate a high likelihood of future courtroom disruptions.
The court expounded: “The court has considered these disruptions both in the courtroom and out; the probable impact of this misconduct on trial proceedings; the availability of alternative sanctions, which I believe I have exhausted; the likely effect [of] this misconduct is very likely to disrupt a trial.”
The trial court also relied on People v. Rudd (1998) 63 Cal.App.4th 620, for the proposition that a defendant “must be able and willing to abide by rules of courtroom procedure and protocol.” Similarly, the court cited People v. Welch (1999) 20 Cal.4th 701 (Welch), in which the court considered the “impact [of the defendant’s conduct] on the core integrity of trial proceedings. They characterized obstreperous . . . behavior and inability to comport with courtroom protocol.” The trial court concluded that “[t]he history of [Hayes’s] behavior supports such conduct.”
The trial court allowed Hayes to argue in response in excess of 35 minutes, during which Hayes complained that the court had spoken too quickly for him to keep up or take notes, and that “a lot” of the statements were “grossly false.” He argued that he could not respond to the allegations if he did not know what they were. Hayes stated that he had been respectful, and that the blame lay with the judge who presided over his preliminary hearing and “committed several serious felonies.”
The trial court reminded Hayes that he was not to argue the merits of his case, but to address his history of misconduct.
Hayes blamed the judges who had previously presided over the matter, who he accused of breaking the law, and the court reporters, who he claimed erased and created portions of the record to his detriment.
The trial court again reminded Hayes to focus on his misconduct, both inside and outside of the courtroom.
Hayes denied any misconduct and said he did his best to comply with the rules. He returned to attacking the integrity of the other judges who had presided over his case, as well as that of the appointed investigator.
The trial court admonished Hayes a third time to focus on his “comportment and compliance on the issue of whether” he was capable of continuing to represent himself.
Hayes argued that the hearing was “fundamentally unfair” because the court had not “hear[d] [his] side of the story.” He argued that his motions were not frivolous.
The trial court deemed the tentative ruling final and revoked Hayes’s pro per status.
Legal Principles
“In Faretta, the United States Supreme Court declared that a defendant ‘must be free personally to decide whether in his particular case counsel is to his advantage,’ even though ‘he may conduct his own defense ultimately to his own detriment . . . .’ (Faretta[v. California (1975)] 422 U.S. [806,] 834 [(Faretta)].)” (People v. Butler (2009) 47 Cal.4th 814, 824 (Butler).) “‘[A]n accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol.’ [Citation.] This rule is obviously critical to the viable functioning of the courtroom. A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill.” (Welch, supra, 20 Cal.4th at p. 734.)
“Whenever ‘deliberate dilatory or obstructive behavior’ threatens to subvert ‘the core concept of a trial’ [citation] or to compromise the court’s ability to conduct a fair trial [citation], the defendant’s Faretta rights are subject to forfeiture.” (Carson, supra, 35 Cal.4th at p. 10.) Pro per status in court may be terminated for either in-court or out-of-court misconduct that “seriously threatened the core integrity of the trial.” (Id. at p. 13.) “[I]t is incumbent on the trial court to document its decision to terminate self-representation with some evidence reasonably supporting a finding that the defendant’s obstructive behavior seriously threatens the core integrity of the trial.” (Id. at p. 11.)
“When determining whether termination is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings. One consideration is the availability and suitability of alternative sanctions.” (Carson, supra, 35 Cal.4th at p. 10.) “The court should also consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status.” (Ibid.) “In a case of in-court misconduct, the record documenting the basis for terminating a defendant’s Faretta rights is generally complete and explicit, without the need for further explanatory proceedings . . . .” (Id. at p. 11.) With respect to out-of-court conduct, however, “it is necessary to preserve a chronology of relevant events for possible appellate review, it is incumbent on the trial court to document its decision to terminate self-representation with some evidence reasonably supporting a finding that the defendant’s obstructive behavior seriously threatens the core integrity of the trial.” (Ibid.)
“Because circumstances will vary with the facts of each case, we leave to the trial court’s discretion the ultimate decision as to how best to proceed in making an appropriate record. [¶] Such a record should answer several important questions. Most critically, a reviewing court will need to know the precise misconduct on which the trial court based the decision to terminate. [Citation.] The court should also explain how the misconduct threatened to impair the core integrity of the trial. Did the court also rely on antecedent misconduct and, if so, what and why? Did any of the misconduct occur while the defendant was represented by counsel? If so, what is the relation to the defendant’s self-representation? Additionally, was the defendant warned such misconduct might forfeit his Faretta rights? Were other sanctions available? If so, why were they inadequate? In most cases, no one consideration will be dispositive; rather, the totality of the circumstances should inform the court’s exercise of its discretion.” (Carson, supra, 35 Cal.4th at pp. 11–12, fn. omitted.) “Each case must be evaluated in its own context, on its own facts, in light of the[se] considerations . . . .” (Id. at p. 10.)
We review the trial court’s determination for abuse of discretion, and “accord due deference to the trial court’s assessment of the defendant’s motives and sincerity as well as the nature and context of his misconduct and its impact on the integrity of the trial in determining whether termination of Faretta rights is necessary to maintain the fairness of the proceedings.” (Carson, supra, 35 Cal.4th at p. 12.)
Analysis
Advance Notice
Hayes’s first argument—that he was not given any advance notice that his Faretta rights might be revoked—is belied by the record. In addition to the previous five admonitions, at the hearing on June 16, 2016, two weeks before the hearing at which the court revoked Hayes’s Faretta rights, the trial court stated: “I am going to admonish you, Mr. Hayes, you are continually interrupting. These proceedings are concluded. . . . I am warning you right now. If you do not obey, sir, we’re going to have a separate hearing to revoke your pro per privileges.”
Hayes responded, “Fine. I will get out of the courtroom right now, but you are breaking the law once again. I am not going to have to say guilty of several felonies. Keep it up, [Judge]. You will be in prison.”
Hayes’s standby counsel immediately instructed him to leave the courtroom. The prosecutor noted for the record that this was a demonstration of open contempt for the court.
The trial court addressed the issue of the propriety of Hayes’s self-representation at the next hearing.
The record demonstrates that Hayes had ample advance warning in the form of six separate admonitions, as well as the opportunity to maintain his status by acting appropriately. We cannot conclude that he was deprived of advance notice in light of these facts.
Written Record and Response with Supporting Evidence
Citing to People v. Becerra (2016) 63 Cal.4th 511, at pages 519–520 (Becerra) and Carson, supra, 35 Cal.4th at page 11, Hayes argues that “[t]he trial court should have made its record, provided appellant a reported, written copy, solicited his written response and supporting evidence, and then had a hearing where he would be heard.” Neither of these cases set forth these requirements as Hayes suggests.
In Becerra, the court held that the trial court abused its discretion in revoking the defendant’s pro per status because it did so abruptly, without warning or a basis in the record for doing so, and without giving the defendant an opportunity to respond. (Becerra, supra, 63 Cal.4th at pp. 519–520.) In Carson, the court terminated the defendant’s in pro per status based solely on out-of-court conduct relating to discovery matters. (Carson, supra, 35 Cal.4th at p. 6.) There, the Supreme Court held that revocation could be based on out-of-court conduct, but suggested that in some cases, “the court may need to hold a hearing or may want to solicit the parties’ respective arguments with written points and authorities and any evidentiary support on which they may seek to rely.” (Carson, supra, at p. 11, fn. omitted.) The court emphasized, however, that “[b]ecause circumstances will vary with the facts of each case, we leave to the trial court’s discretion the ultimate decision as to how best to proceed in making an appropriate record.” (Ibid.)
Unlike the trial court in Becerra, here Hayes was given multiple admonishments, the court’s identified instances of in-court misconduct were fully supported in the record, the court outlined for Hayes the detailed chronology of his misconduct, and Hayes was given, and took advantage of, the opportunity to respond at length. Unlike Carson, the trial court in this case did not base its decision solely on out-of-court conduct. The court documented the instances of both in-court and out-of-court misconduct, considered all of the factors identified in Carson, and made an appropriate record of the proceedings.
Less Drastic Sanctions
Hayes argues that the trial court failed to consider other, less drastic measures to ensure that his conduct did not disrupt courtroom proceedings. Specifically, he identifies “three constitutionally permissible ways to handle an ‘obstreperous’ defendant[:] . . . ‘(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly,’” as articulated by the United States Supreme Court in Illinois v. Allen (1970) 397 U.S. 337, 343–344 (Allen). Allen was not a case in which pro per status was revoked. There, the issue was the propriety of the (represented) petitioner’s removal from the courtroom following his obstreperous behavior in the courtroom in the jury’s presence. (Id. at pp. 340–341.) Hayes (wisely) does not suggest that the trial court in this case should have first employed option No. 1 or No. 3, but instead suggests that he should have been cited for contempt of court. While we agree that this option was available to the trial court, we do not agree that it was required to cite Hayes for contempt of court prior to revoking his pro per status. A trial court must consider “the availability and suitability of alternative sanctions.” (Carson, supra, 35 Cal.4th at p. 10.) Here, the trial court stated that it had done so on the record: “Other measures have been tried, repeated admonishments. You have been given multiple opportunities. [¶] . . . [¶] . . . [T]he court feels all avenues have been exhausted . . . .” Having considered its options, it was not an abuse of discretion for the court to admonish Hayes rather than cite him for contempt following his outbursts, or to determine that no matter what sanction it imposed, Hayes would continue to be disruptive in the courtroom.
Comparison with Other Cases
Hayes argues that his conduct pales in comparison with that of the defendants in other cases, notably the violent behavior the defendant exhibited in Butler, supra, 47 Cal.4th 814. The issue, however, is not whether a defendant has behaved violently or has engaged in specific misconduct. The issue is whether the defendant’s “‘deliberate dilatory or obstructive behavior’ threatens to subvert ‘the core concept of a trial’ [citation] or to compromise the court’s ability to conduct a fair trial” such that the revocation of the defendant’s Faretta rights is necessary. (Carson, supra, 35 Cal.4th at p. 10.) With respect to this inquiry, “[e]ach case must be evaluated in its own context, on its own facts, in light of the [relevant] considerations.” (Ibid.)
Here, Hayes repeatedly engaged in disruptive behavior that negatively impacted courtroom proceedings. The trial court made a complete record of its ruling, and properly considered the relevant factors before revoking Hayes’s pro per status. It identified specific, documented instances of misconduct both in-court and outside of court—all of which occurred after Hayes was granted permission to proceed in pro per—and explained the impact of the incidents on court proceedings. The court admonished Hayes on six occasions that his behavior could be a basis for revoking his pro per status. The court considered the likely impact of similar behavior on future court proceedings and considered whether lesser sanctions would be effective. The court’s tentative ruling was made on the record, and Hayes was afforded over 35 minutes to respond at the hearing before the court issued its final ruling. There was no abuse of discretion.
Utilization of Safety Chair
Hayes contends that the trial court prejudicially abused its discretion by ordering that he be restrained in a safety chair that visibly and conspicuously restrained him, caused him pain, interfered with his ability to participate in his own defense, and prejudiced his testimony. We agree with the People that Hayes forfeited these arguments by failing to object on any basis in the trial court. (See People v. Foster (2010) 50 Cal.4th 1301, 1321 [defendant who contended restraints violated rights of confrontation, due process, a fair trial, the assistance of counsel, a reliable determination of the issues of guilt and penalty, and the presumption of innocence, under the Fifth, Sixth, Eighth, and Fourteenth Amendments, forfeited his claim because he “did not object to being restrained or to the use of a stun belt as a restraint”].) Even if we were to reach the merits, however, the trial court did not abuse its discretion by imposing restraints, or by determining that utilization of a safety chair was more appropriate than some other method of restraint.
Legal Principles
“‘[A] criminal defendant may be subjected to physical restraints in the jury’s presence upon “a showing of a manifest need for such restraints.” [Citations.] This requirement is satisfied by evidence that the defendant has threatened jail deputies, possessed weapons in custody, threatened or assaulted other inmates, and/or engaged in violent outbursts in court.’ [Citation.]” (People v. Williams (2015) 61 Cal.4th 1244, 1259 (Williams).) “[E]ven when the record in an individual case establishes that it is appropriate to impose some restraint upon the defendant as a security measure, a trial court properly must authorize the least obtrusive or restrictive restraint that effectively will serve the specified security purposes.” (People v. Mar (2002) 28 Cal.4th 1201, 1226.) “The trial court’s determination is reviewed for abuse of discretion.” (Williams, supra, at p. 1259.)
Proceedings
Prior to the start of trial, the trial court held a hearing to make a record of Hayes’s status and for the trial court to make findings regarding the manifest need to properly secure Hayes.
The day before the hearing, defense counsel advised Hayes that there would be no more time waivers and that they would have to prepare for trial. Hayes responded that he would not be going to trial, and “that he would ‘sacrifice his life’ . . . and attack the bailiff and the judge to ensure that he is not going to go to trial.” Defense counsel took this as a direct threat against the court staff and the trial court, and determined that it was his duty to disclose Hayes’s statements to the court in camera pursuant to Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425. Defense counsel disclosed Hayes’s threatening statements, and the court “made some orders.” Later that afternoon, defense counsel met with Hayes again and Hayes “reiterated that if he felt he was going to get railroaded, that he has tricks up his sleeve.” Defense counsel “interpreted that as a threat ’cause a trick to him is something physical or violent.” He disclosed the second statement in camera the following morning. Counsel again relayed this information at the hearing.
At the hearing, the trial court stated it had received an advisement that morning that Hayes had been ordered extracted from his cell the day before. The deputies had obtained permission to secure Hayes in a safety chair for transport to the court, but sought permission to have him remain in the chair during court proceedings due to the threats and Hayes’s previous violent history.
On the day of the hearing, deputies attempted to extract Hayes from his cell unsuccessfully, and ultimately used gas to subdue him. Hayes pulled out a “weapon with a razor blade [attached to it],” cut his own face several times, and swallowed the razor blade. He was transported for medical treatment.
In light of this information, the court decided that it needed to assess whether there was a manifest need to secure Hayes in the courtroom. The trial court reviewed the 23 charges against Hayes, noting that “the charges are extremely serious involving weapons,” and that he had strikes alleged against him. The trial court recognized that individual findings should be made, and stated that in this case, the court was evaluating the most appropriate means of ensuring safety in the courtroom ranging from the use of extra deputies, to use of a stun belt, to use of a safety chair.
The trial court asked a Senior Deputy Sheriff to describe the safety chair for the record, which he did as follows: “A safety chair is a chair-like device that restrains the feet, the waist, the shoulders, and the hands preventing him from moving or standing up and attacking anybody.” The trial court stated that it understood “extraordinary security practices carry an inordinate risk of infringing upon the defendant’s right to a fair trial. The court also is aware that these exceptional practices must be justified by a particularized showing of manifest need sufficient to overcome the substantial risk of prejudice they pose.” The trial court acknowledged that visible restraints might impair a defendant’s ability to participate in his own defense or negatively impact his testimony.
The court stated:
“In this case, this defendant has a long history of violence, and, most recently, as of yesterday, it rose to the level of the threats to not only this bench officer but the bailiffs and what arguably could be to defense counsel and the prosecutor or the potential witnesses. It rose to the level requiring [defense counsel] to most appropriately warn the court of the situation.
“He was insistent he would not be coming [to court]. The deputies did not engage him face-to-face, that they elected to use the gas in an attempt to secure him for court, and he took it upon himself then to injure himself, slashing himself with a razor, and arguably swallowing it, risking his own life, which is consistent to what he said to [defense counsel].
“As much of a concern not only to himself is the fact that, one, he was able to sequester a razor blade and secure it onto some kind of apparatus making it likely to be some type of stabbing instrument. That would pose a risk to anybody who comes in contact with the defendant.”
The court detailed Hayes’s inmate disciplinary reports on the record, which included the incidents described ante, as well as numerous more recent infractions including multiple citations for insubordination, and citations for possession of a weapon and fighting. Hayes placed deputies at risk on several occasions, and on one occasion had kicked a deputy. The court had received a facsimile indicating that Hayes threatened deputies while incarcerated because the volume on the television was too high. He passed a deputy a handwritten note stating that if the volume was not lowered, he would “put some sharp metal in a deputy’s or maybe a sergeant’s neck,” and would defend his ears “by killing a . . . cop.”
The court also detailed Hayes’s misconduct in court, including the misconduct discussed ante, and noted that Hayes had been admonished regarding his conduct multiple times. Hayes was facing charges for spitting on his attorney and had “committed misconduct with aggressive gestures, and the bailiff had to use force to take [Hayes] to the ground.” The attorney was removed from the case and Hayes was appointed another attorney, who Hayes later kicked in open court, knocking him out of his chair. Hayes was facing felony charges (§ 245, subd. (a)(4)) as a result of that incident.
After reviewing these facts, the trial court concluded:
“So with that and in light of the two assaults on his attorneys, his threats to harm deputies, his threats yesterday to [defense counsel], there’s . . . evidence of a likelihood of disruptions and nonconforming behavior as outlined by all those matters in which I read in court, and I do find there’s, in fact, a manifest need to properly secure this defendant based on the allegations and his conduct today highlighting his intent to be uncooperative, refused to come and participate in his trial, and the threats to assault the court and deputies. I find that shackles will not be sufficient, . . . and the fact that he still, as of this morning, securing weapons, which appears to be a razor blade today, that he will be ordered to be secured in a safety chair.
“I find that’s the least intrusive method that will be effective under the circumstances, and his rights do not trump the safety and security of all the parties involved which would include the entire court staff, the sheriff’s department, and all the attorneys involved.”
To lessen the prejudicial impact of the safety chair, the trial court instructed the jury during voir dire:
“[Y]ou’ll notice the defendant is sitting in a safety chair. There’s something that has come up recently. It’s a temporary medical condition that he’s suffering from. So for his safety, he’s been secured into that safety chair throughout the proceedings. So I’m going to admonish you . . . don’t evaluate that for any other purpose. He’s here present during his trial, which he wants to be. So please don’t take any negative inferences or be sympathetic in the sense that he’s going to be fine, and we’re all here, and we’re going to do the jury trial. So please disregard the fact that he’s in that secured safety chair.”
Subsequently, the trial court gave CALCRIM No. 204 as follows:
“The fact that physical restraints have been placed on the defendant is not evidence. Do not speculate about the reason. You must completely disregard the circumstances and decide the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.”
Analysis
On this record, we cannot conclude that the trial court abused its discretion by ruling that Hayes be secured in a safety chair. Hayes had a long history of regular, often violent, misconduct. He made serious threats against the trial court, bailiffs, courtroom staff, and deputies, and demonstrated the ability to carry out his threats while incarcerated and in open court. He was able to obtain and use a dangerous weapon while in custody, which posed significant danger to himself and others. It was well within the trial court’s discretion to determine that a lesser form of restraints would not provide adequate protection for the many people Hayes threatened to harm, and that the need to keep others safe outweighed any prejudice to Hayes.
Admission of Hayes’s Prior Violent Conduct
Hayes next contends that the trial court abused its discretion by admitting evidence that he kicked his former attorney in the chest, knocking the elderly man out of his chair. The People argue that Hayes “opened the door” to this evidence, which was admissible to directly impeach his statement that he did not hit old people, to impeach him with evidence of conduct involving moral turpitude, and to rebut his evidence of the Thompsons’ violent character under Evidence Code section 1103, subdivision (b). We agree with the People that the trial court did not abuse its discretion by admitting the evidence to impeach Hayes’s credibility generally with evidence of conduct involving moral turpitude, and specifically with respect to his testimony that he did not hit elderly people. We further conclude that the trial court did not abuse its discretion by finding that the probative value of the evidence outweighed any prejudicial effect it may have had on the jury under Evidence Code section 352.
Proceedings
On direct examination, Hayes testified that he threw a rock at a light behind Allen:
“[Defense counsel]: You testified that he came out. You had another rock in your hand. You threw it at him, or threw it at something?
“[Hayes]: I didn’t throw it at him. . . . I was tempted to throw it at him. I’m not going to lie. [¶] But because of his age, I cut him some slack. I saw a nice, like, expensive-looking lamp just behind the doorway. I missed, but I tried to throw the rock at the lamp to break it, you know. [¶] ’Cause, like I said, he’s old. If he was my age, I would have kicked his ass. But ’cause he’s old, I didn’t want to actually hurt him.”
On cross-examination, the prosecutor questioned Hayes as follows:
“[Prosecutor]: Now, you’re testifying on direct that sometime in December/January, some of your friends got together and discuss [sic] how to handle Al Thompson; right?
“[Hayes]: Yes.
“[Prosecutor]: You guys didn’t want to physically hurt him?
“[Hayes]: No. [¶] Well, the thought was tempting. But because he was old, we thought we’d go easy on him.”
“[Prosecutor]: So you don’t like to hurt old people?
“[Hayes]: You know, I have a little bit of sympathy for the elderly.
“[Prosecutor]: So you’ve never hit an old person?
“[Defense counsel]: Objection —
“[Hayes]: He was trying to hit me. I was trying to defend myself.
“The Court: Stop talking.
“[Defense counsel]: Objection. Relevance.
“The Court: Overruled.
“[Prosecutor]: So you never hit an old person?
“[Hayes]: No.”
Shortly thereafter, the prosecution sought to admit evidence of the facts underlying a charge against Hayes in Los Angeles County Superior Court case No. MA072879. In that case, Hayes was alleged to have violated section 245, subdivision (a)(4), by kicking his former defense attorney, Darold Shirwo, in the chest, knocking him to the floor. The assault occurred in open court. Shirwo was over 75 years old at the time.
In a hearing outside the presence of the jury, the prosecution proposed to play a video of the assault to the jury to impeach Hayes’s testimony that he did not hit old people, and also as evidence of Hayes’s bad character pursuant to Evidence Code section 1103, subdivision (b). With respect to Evidence Code section 1103, the prosecution argued that Hayes proffered evidence of the Thompsons’ bad character by testifying that Allen and James Thompson looked for him following the January 24, 2015 incident and shot at him with an SKS rifle.
The trial court ruled that the video was admissible under Evidence Code section 1103 because Hayes testified that James was the aggressor in the uncharged incident at the Acton Market and painted himself as the victim. Hayes claimed that James beat him and knocked his tooth out. The trial court reasoned that by testifying to a specific act of uncharged violence in which the victim was the aggressor under Evidence Code section 1103, subdivision (a), Hayes had opened the door to the prosecution to present evidence of Hayes’s character in rebuttal under Evidence Code section 1103, subdivision (b). The trial court noted a second reason that the evidence was admissible under Evidence Code section 1103, subdivision (b): Hayes triggered that section by testifying that James and Allen Thompson drove around after the incident on January 24, 2015, and pointed and shot an SKS rifle at him.
The trial court also ruled that the evidence of the incident with Shirwo was admissible to impeach Hayes’s testimony that he had never hit an old person. Defense counsel argued that he had objected to the prosecutor’s line of questioning, which was overly broad and irrelevant, and essentially set Hayes up. The trial court acknowledged that counsel had objected, but explained that the question was not a set-up, because Hayes could have answered honestly. Moreover, the subject was relevant, because Hayes had tried to present himself as someone who would use restraint and not hurt an elderly person, and therefore would not have committed the alleged crimes against elderly victims. Hayes had raised the defense in his own testimony. The prosecution’s proffered evidence directly contradicted Hayes’s defense.
Finally, the trial court ruled that the evidence was admissible as conduct involving moral turpitude. Hayes had kicked Shirwo in 2017. The fact that the conduct was recent increased its relevance.
When trial before the jury resumed, the prosecution questioned Hayes regarding the incident with Shirwo. Hayes testified that he did not know whether Shirwo was elderly.
The prosecutor then asked, “During the court proceedings or right after the court proceedings, rather, did you stand up, turn to your side, and violently kick Mr. Shirwo in the chest causing him to fall out of his chair? Yes or no?”
Hayes responded, “Yes, I did, in order to fire him because the judge wouldn’t let me fire him. He was screwing up my defense and lying — [¶] . . . [¶] I tried three times to fire him. The judge wouldn’t let me fire him. . . . [¶] . . . [¶] It worked. I got a new attorney now.”
Hayes denied shouting profanities just before the incident and denied refusing to stand when he was instructed to. He did not notice whether Shirwo had a slight build.
Afterward, in a discussion outside of the presence of the jury, the court clarified that although defense counsel had not specifically objected to admission of the video recording of Hayes kicking Shirwo under Evidence Code section 352, the trial court found the evidence admissible under that section. The court reasoned that the probative value of the evidence greatly outweighed any prejudice. The presentation of the evidence would be brief. The evidence was relevant because Hayes continued to present himself to the jury as someone who would not hurt an elderly person, and had testified that his conduct was justified. The video undermined his testimony. The evidence was not overly inflammatory. Shirwo did not suffer visible injuries, and the attack was brief. The incident also involved a much lower level of violence than the charged offenses. Hayes only kicked Shirwo. The charged offenses included allegations that Hayes shot an assault weapon into the elderly victims’ homes while they were present, and could have killed someone.
After the defense rested, the prosecution called Los Angeles Deputy Sheriff James Stella, who testified that on August 9, 2017, he witnessed Hayes kick his attorney in a courtroom in Lancaster. Hayes had attempted to make a motion and became verbally abusive to the judge when he was refused. Hayes kicked his attorney as the deputies were attempting to remove him from the courtroom. Deputy Stella authenticated the video, which was played for the jury. The video depicted Hayes violently kicking an elderly man sitting next to him, causing the man to fall out of his chair. It then depicted Hayes being subdued.
On cross-examination of Deputy Stella, defense counsel elicited that Hayes had been attempting to have his attorney removed from the case because he did not feel he was being properly represented.
Legal Principles
“Section 1101 limits the admission of prior misconduct to prove conduct on a particular occasion, but it does not ‘affect[ ] the admissibility of evidence offered to support or attack the credibility of a witness.’ (§ 1101, subd. (c); see id., subd. (a).) Generally speaking, evidence ‘that has any tendency in reason to prove or disprove the truthfulness of a [witness’s] testimony’ is admissible. (§ 780; see also § 210.) Although ‘[n]ot all past misconduct has a “tendency in reason to prove or disprove” a witness’s honesty and veracity’ [citation], ‘[a] witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court’s exercise of discretion under . . . section 352.’ [Citation.] Section 352, in turn, permits a trial court to ‘exclude evidence if its probative value is 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.’ (§ 352.)
“Prior misconduct can also be admissible to impeach a witness under section 780, subdivision (i)—which applies to evidence that tends to establish ‘[t]he existence or nonexistence of any fact testified to by [the witness]’—by suggesting a particular aspect of the witness’s testimony is untrue. [Citations.] The admission of impeachment evidence on this ground remains subject to section 352. [Citation.]
“The trial court has broad discretion in determining whether to admit impeachment evidence, including whether it is subject to exclusion under section 352. [Citation.] Thus, we review the court’s admission of such evidence for an abuse of discretion. [Citation.]” (People v. Turner (2017) 13 Cal.App.5th 397, 408 (Turner); see also People v. Dalton (2019) 7 Cal.5th 166, 214.)
Analysis
Hayes’s attack on Shirwo was charged in a separate criminal case as assault with force likely to produce great bodily injury under section 245, subdivision (a)(4), which is a crime of moral turpitude. (People v. Elwell (1988) 206 Cal.App.3d 171, 177.) Hayes asserts that although evidence of moral turpitude may be admitted if a witness is convicted of a crime of moral turpitude, it is impermissible to admit evidence of moral turpitude where the witness has not been convicted. This is incorrect. A witness may be impeached with conduct involving moral turpitude regardless of whether the conduct resulted in a conviction for a crime of moral turpitude, subject to its admissibility under section 352. (Turner, supra, 13 Cal.App.5th at p. 408.) At the time that the evidence was deemed admissible, criminal charges were pending. The video supports the characterization of Hayes’s conduct as conduct involving moral turpitude. He is depicted violently kicking a small elderly man out of his chair, with no apparent provocation. As we discuss below, the trial court did not abuse its discretion by admitting the evidence under Evidence Code section 352. The trial court did not abuse its discretion by admitting evidence of conduct involving moral turpitude to impeach Hayes’s credibility.
The conduct was also admissible to directly impeach Hayes’s testimony that he would not hurt an elderly person. Hayes opened the door to this evidence on direct examination by volunteering that he “took it easy” on Allen Thompson and refrained from throwing a rock at him because he was old. When the prosecutor questioned him further about his restraint with the elderly, Hayes denied that he would ever harm an elderly person. His defense was his good character—he testified that he may have been upset by what older people did but despite the temptation he would not harm them because he had sympathy for them due to their advanced age. Hayes’s unprovoked attack on his elderly and physically unimposing attorney directly contradicted this defense. The trial court did not abuse its discretion by admitting the evidence on this basis.
Finally, the trial court acted within its discretion in finding that the evidence was admissible under Evidence Code section 352. Presentation of the evidence did not unduly consume trial time. The relevant video footage was only a few minutes long and the deputy’s testimony spanned less than six pages of reporter’s transcript. The evidence was not inflammatory. Although Hayes’s attack on his attorney was abrupt and violent, it was short and there was no evidence that Shirwo suffered lasting injury. In contrast, the charged crimes included the allegation that Hayes fired an assault weapon into a house occupied by elderly people, placing multiple victims’ lives in danger. As we have discussed, the evidence was directly relevant to rebut Hayes’s statement that he did not commit the charged crimes because he had sympathy for the elderly, and thus had strong probative value.
Conflict of Interest
Hayes contends that he was prejudiced by defense counsel’s statements in closing argument that Hayes was dislikable and a “big, fat jerk,” who kicked Mr. Shirwo, a friend and colleague of his. Hayes argues defense counsel showed his disloyalty to him by stating to the jury that what he did was “not right” and “totally wrong.” Hayes asserts that defense counsel had a self-interest in maintaining a collegial relationship with Shirwo, which conflicted with his own interests, resulting in counsel’s disparagement of Hayes in argument.
Legal Principles
“A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel’s loyalty to his or her client. [Citations.] ‘It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.’ [Citation.] ‘As a general proposition, such conflicts “embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests. [Citation.]”’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).)
“[C]laims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that . . . generally require a defendant to show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the result of the proceeding would have been different. [Citation.] In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest ‘that affected counsel’s performance—as opposed to a mere theoretical division of loyalties.’ [Citations.] ‘[I]nquiry into actual conflict [does not require] something separate and apart from adverse effect.’ [Citation.] ‘An “actual conflict,” for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.’ [Citation.]” (Doolin, supra, 45 Cal.4th at pp. 417–418.)
“[A] determination of whether counsel’s performance was ‘adversely affected’ under the federal standard ‘requires an inquiry into whether counsel “pulled his punches,” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.’ (People v. Cox (2003) 30 Cal.4th 916, 948–949.)” (Doolin, supra, 45 Cal.4th at p. 418.)
Proceedings
On cross-examination, the prosecutor questioned Hayes regarding the incident with Shirwo, as follows:
“[Prosecutor]: During the court proceedings or right after the court proceedings, rather, did you stand up, turn to your side, and violently kick Mr. Shirwo in the chest causing him to fall out of his chair? Yes or no?
“[Hayes]: Yes, I did, in order to fire him because the judge wouldn’t let me fire him. He was screwing up my defense and lying — [¶] . . . [¶] I tried three times to fire him. The judge wouldn’t let me fire him. . . . [¶] . . . [¶] It worked. I got a new attorney now.”
The video recording of Hayes kicking his attorney was shown to the jury over defense counsel’s objection.
In closing argument, defense counsel stated:
“Let me just say a couple things about Mr. Hayes. I’m sure Mr. Hayes is not the kind of guy that any of you would want to have lunch with. Al Thompson was probably a big, fat jerk. In a lot of ways, my client is a big, fat jerk. I’m going to admit that to you. When he kicked Darold Shirwo, who is a friend of mine and a colleague of mine, it’s not right. It’s totally wrong.
“But can you just do one thing for me? Keep what happened with Darold Shirwo in context because the context involving Mr. Shirwo is different than the context of Mr. Thompson. Mr. Hayes was very unhappy and upset with his attorney. He didn’t think his attorney was working for him.”
“He was having problems with his attorney. He wanted a new attorney. So what did he do? Did he kick Darold Shirwo to hurt him? So what he did was kick Darold Shirwo to create a conflict so the judge would have to get Shirwo off the case and get a new lawyer. Mr. Hayes told you it worked. He wasn’t trying to hurt him. He was trying to get a new lawyer. As he was taken down to the ground, saw the deputies punching him in the face. Said, ‘I had to do it ‘cause that’s what I had to do to get a new lawyer.’ I’m not justifying that. Please. I’m not. I am not justifying that.
“But what I am saying is please keep things in some context. There are some differences between the incident regarding Darold Shirwo and the incident involving Al Thompson.”
Defense counsel expounded on the importance of being a juror, and the juror’s role. He then stated:
“There’s a lot to dislike about Christopher Hayes. There’s a lot to dislike about the man. I’m sure you won’t be friends. But you need to — please use your brain and your head and not your emotions. And just look at the evidence and ask the ultimate question: Did the People prove this beyond a reasonable doubt?”
Following his conviction, Hayes complained to the court that defense counsel had a conflict of interest due to his relationship with Mr. Shirwo, that he denigrated Hayes before the jury, and that he did not want defense counsel to represent him, which ultimately led to a hearing regarding counsel’s representation of Hayes. Defense counsel was not removed from the instant case, but declared a conflict in the related case involving the attack on Shirwo. A different attorney was appointed to represent Hayes in that case.
Analysis
The record demonstrates that defense counsel advocated admirably on Hayes’s behalf. He strongly advised Hayes not to testify out of concern that his testimony would trigger the admission of potentially damaging impeachment evidence—which it did. After Hayes testified, defense counsel argued strenuously against admission of evidence of Hayes’s attack on Shirwo, characterizing it as an unfair set up, but the evidence was ultimately admitted over his objection.
Once the jury had heard the testimony and viewed the video, counsel’s options became limited. There were simply not many “punches” left to pull. To preserve the remnants of his client’s credibility, counsel had to explain to the jury why Hayes would feel justified kicking an old man in one instance (Shirwo), but exercise forbearance in another (James).
Hayes argues that counsel could have called Shirwo as a witness. There were strong strategic reasons not to do so. If Shirwo had testified, his testimony would be fully corroborated by the video. Given that Hayes freely admitted that he assaulted Shirwo for Hayes’s own strategic reasons and the assault was captured on video, there was nothing to be gained by cross-examining Shirwo about the assault. It would be reasonable for defense counsel to conclude that calling Shirwo only to cross-examine him would make him even more sympathetic as a victim, and only serve to highlight Hayes’s violent act.
Hayes suggests that counsel should have done more to paint him in a positive light, citing to Janice Burton’s testimony that Hayes was “very attractive” and “dressed really nice,” and Detective Nordskog’s testimony that a woman in a dress had walked half a mile in high heels to see Hayes, and that Nordskog himself was “pretty impressed” at Hayes’s nice, clean, well-kept professional camp setup. It is probable that counsel did not elicit additional testimony regarding Hayes’s physical appearance, his guest’s choice of footwear, and the tidiness of his campsite, because they were simply not relevant. Additionally, the jury, having recently viewed the video of Hayes kicking a defenseless elderly man out of his chair, was unlikely to react favorably to any assertion that Hayes was a good person who did “a good thing” by kicking Shirwo, as Hayes suggested to the court (outside the presence of the jury). Defense counsel could reasonably conclude that trying to paint Hayes or his actions in a positive light was poor strategy, and that if he did so the jury would reject any argument he made in Hayes’s defense.
Instead, counsel appealed to the jury to employ logic over emotion, by urging the jurors to compartmentalize their feelings about Hayes from the ultimate conclusion that, likeable or not, Hayes was not guilty beyond a reasonable doubt. Counsel’s acknowledgement that Shirwo was his colleague and friend, and that Hayes was not a nice person, underscored the argument counsel made that it was important to put aside feelings and emotion and understand the difference between the assault on Shirwo and the charged conduct victimizing Thompson. If counsel, a colleague and friend of Shirwo’s could put aside his own emotion, the jurors could as well. Counsel argued that when Hayes kicked Shirwo, Hayes was desperate—he felt that he was not being represented properly and that kicking his attorney was his only recourse. Hayes was not in a desperate situation with respect to Thompson. He was therefore in a position to follow his natural inclination to “cut [Thompson] some slack” due to his age. Given the circumstances, we conclude that there could have been a sound strategic rationale behind counsel’s comments. We cannot conclude that counsel’s representation fell below an objective standard of reasonableness here, or that the outcome of the trial would have been more favorable if defense counsel had deployed a different strategy.
The fact that defense counsel recused himself in the Shirwo case does not alter our conclusion, as there is no evidence of actual conflict in the present case. (See Doolin, supra, 45 Cal.4th at pp. 417–418 [an actual conflict is a conflict that adversely affects counsel’s performance].) Moreover, in this case, there was no direct conflict—counsel did not represent Hayes against his colleague. Defense counsel responded in a strategically sound way to Hayes’s own testimony about the assault and the damage wreaked by a video which, as the trial court noted, plainly spoke for itself.
Expert Testimony
Detective Ed Nordskog of the Los Angeles County Sheriff’s Department’s arson and bomb squad investigated the wildland fire by Hayes’s campsite. When he interviewed Hayes the morning after the fire, Hayes told him that he had left his camp for 20 minutes to make a phone call and returned when he spotted the fire from a distance. Hayes had left a person called “George,” whom he had met a day or two earlier, at the campsite. George smoked cigarettes and threw the butts around the campsite, which Hayes did not like. Hayes had told him to stop.
At trial, the prosecutor questioned Detective Nordskog as follows:
“[Prosecutor]: Now, with respect to the other human activity, Mr. Hayes indicated George had caused the fire with cigarettes. [¶] Did you investigate the possibility of the cigarettes causing the fire?
“[Detective Nordskog]: Yes. As soon as Mr. Hayes told me that back at the Palmdale Sheriffs station, I knew that was probably — not probably or even possible, and I explored that a little bit. The conditions are not right for cigarettes to cause a fire at that scene. In fact, it’s a scientific impossibility.”
Detective Nordskog looked for cigarette butts for over an hour at the site, but did not find any, as he would expect if a cigarette had started the fire. He explained: “Cigarette butts are very strong items that do not burn away. We find them at practically every fire scene where they are discarded. They are very durable.”
The prosecutor questioned Detective Nordskog further regarding the possibility that a cigarette could have caused the fire:
“[Prosecutor]: Now, you are talking about it not being probable. What conditions would you need for there to be a cigarette caused wild fire?
“[Detective Nordskog]: I think it said it would not be possible. There’s a difference between probable and possible. [¶] Cigarettes can cause wildfires but only in the most extreme and rarest circumstances.
“[Prosecutor]: What do you mean by that?
“[Detective Nordskog]: If you study how wildfires ignite, they need a heat source. A consistent heat source. It has to land in the appropriate fine materials, and when I say fine, thin, light combustible terms, like, grasses. That area did not have those sorts of grasses. . . . [¶] Second of all, cigarettes, if they work, and it’s extraordinary, in certain parameters they might cause a fire. The temperature has to be over 80-degrees Fa[h]renheit. The winds have to be measurable. Usually between ten and 20 miles per hour. . . . [A]nd if the cigarette was placed, or dropped into that particular situation, the actual glowing end has to face the wind and the wind has to at least hit 30 percent of the cigarette. That’s virtually impossible for that to happen. Besides the temperature was too low, the wind were [sic] too low and the humidity area [sic] was way too high. It was three times to [sic] high. It’s a scientific impossibility for this scene for this cigarette to cause that fire.”
Detective Nordskog opined that for a cigarette to have caused a wildland fire, the humidity would have to be below 22 percent. The day of the fire the humidity was over 60 percent, the temperature was approximately 60 degrees, and there was no fine grass to fuel the fire. Detective Nordskog had conducted between 20 and 30 tests on “red flag” days with temperatures over 100 degrees, winds of 20 miles per hour, and low humidity. He testified: “I’ve never been able to get in the Southern California area a brush fire going with a cigarette. We can do it with all kinds of other items but not a cigarette.”
Later, the prosecutor elicited Detective Nordskog’s opinion of the story about George that Hayes had related when interviewed.
“[Prosecutor]: What did your human behavior and, I guess, homeless fire experience tell you with respect to George. The George story and cigarettes?”
“[Detective Nordskog]: The George story the moment I heard it, I wasn’t really believing it and I’ll explain why.”
“I’ve investigated a lot of homeless encampments. Talked to thousands of homeless persons at length about how they live. Their lifestyle. When there’s fires and other crimes in their encampments, and I’ve learned, for the most part, not to generalize, most homeless are extraordinary [sic] protective of their personal property just like any other homeowner. This is what they have. This is all they have for most cases, and sometimes there are tremendous fights over their personal property.
“When he told me that some stranger, named George who he barely knew, came to visit and he left George in his encampment with all of his valuables to go make a phone call, I just found that unlikely. That’s just not the behavior I expected out of meeting hundreds and hundreds of homeless persons. They have — their property is their property. So they don’t want people touching it especially people they don’t know. They might entrust it to a close friend or another homeless person living with them, but they don’t trust the cops with it. They don’t trust anybody with their property. So I found it very unlikely that he left his site to some guy he just met the previous two days. I’m very skeptical of that.”
On appeal, Hayes challenges the admissibility of Detective Nordskog’s testimony that he “wasn’t really believing” the George story, found it “very unlikely,” and was “very skeptical.” He contends that Detective Nordskog’s testimony constituted “irrelevant, speculative, inadmissible opinions that Hayes was a liar and guilty.” He argues that the jury was as competent to determine Hayes’s credibility and draw conclusions as to his guilt as Detective Nordskog, and that he was prejudiced by its admission.
Legal Principles
“‘“California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness . . . and to give testimony in the form of an opinion.”’ [Citations.] ‘“Generally, the opinion of an expert is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .’”’ [Citations.] However, ‘“‘[w]here the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.’”’ [Citation.] Expert testimony will be excluded ‘“‘when it would add nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men [and women] of ordinary education could reach a conclusion as intelligently as the witness.”’”’ [Citation.]
“Some topics are categorically off-limits to expert testimony. [Citations.] For example, juries are competent to decide such things as witness credibility [citation], a defendant’s guilt or innocence [citation], or whether a crime has been committed [citation], without expert assistance in all circumstances.” (People v. Brown (2016) 245 Cal.App.4th 140, 158 (Brown).)
“We review the trial court’s ruling on the admissibility of expert testimony for abuse of discretion.” (Brown, supra, 245 Cal.App.4th at p. 157.) “The erroneous admission of expert testimony only warrants reversal if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citations.]” (People v. Prieto (2003) 30 Cal.4th 226, 247.)
Analysis
In People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill), the case upon which Hayes most heavily relies, the reviewing court held that the trial court committed reversible error because it allowed two investigating police officers to testify that the child sexual abuse victim was being truthful regarding the allegations against the defendant. (Id. at pp. 37–41.) During trial, the defendant testified in his own defense and denied the allegations. (Id. at p. 37.) Defense counsel called the investigating officers to testify about discrepancies between the child’s report to police and her trial testimony. (Id. at p. 38.) On cross-examination, the prosecutor asked the investigating officers if they had formed opinions as to whether the child’s allegations were true. (Ibid.) In overruling defendant’s objection, the trial court stated as follows: “‘Number one, a witness is entitled to give his opinion on the questions that the jury is entitled to determine. Number two, this officer has had approximately seven years of experience, and has written, as I recall his testimony, something in the nature of a thousand or more reports, which indicates that he has had experience in taking witnesses’ testimony, and I think [in] the course of that he would be normally expected to judge whether a person, in his opinion, is telling the truth or not. I think that he’s qualified to render his opinion in that regard.’” (Ibid.) Both officers testified they were convinced the child was being truthful and explained the reasons for their beliefs. One of the officers stated he had interviewed many children, and, as a result, could usually determine with a high degree of certainty whether their allegations were true. (Ibid.)
In reaching its conclusion there was reversible error as a result of the testimony, the Sergill court opined the officers’ opinions were inadmissible for several reasons. First, the testimony did not qualify as reputation evidence, because the officers did not know the child and therefore could not testify as to her reputation for being truthful. (Sergill, supra, 138 Cal.App.3d at p. 39.) Second, the officers’ experience interviewing reporters of crimes numerous times during their careers did not qualify them as experts in judging truthfulness, and in any case, the veracity of those who report crimes is not a proper subject for expert testimony. (Ibid.) Third, the testimony was not admissible as lay opinion under Evidence Code section 800, subdivision (b). (Sergill, at p. 40.) “A lay witness may testify in the form of an opinion only when he cannot adequately describe his observations without using opinion wording,” such as when the details of an observation are too complex or subtle for concrete description. (Ibid.) The officers, however, were able to testify about their interviews with the child victim in concrete detail. Finally, the officers’ opinions about the victim’s veracity were not relevant because they did not fall within the list of factors bearing on credibility listed in Evidence Code section 780. (Sergill, at p. 40.)
Having found error, the Sergill court next considered whether the error was prejudicial: “We must examine the entire cause, including the evidence, and determine whether it is reasonably probable that a result more favorable to appellant would have been reached had this evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836; Evid. Code, § 353.) The critical question in this case was the child’s credibility. When the case was previously tried, there was a mistrial, as the jury was unable to agree on a verdict.” (Sergill, supra, 138 Cal.App.3d at p. 41, fn. omitted.) The court noted that “[a]ccording to appellant’s counsel, at the first trial the jury was divided nine to three for acquittal. In his motion for new trial in this case, appellant argued that at the first trial, the officers’ opinion testimony was not presented. While we do not have a transcript of that trial, appellant’s characterization of the evidence at that trial is not contradicted by respondent.” (Id. at p. 41, fn. 1.)
The Sergill court identified several other weaknesses in the case: “[t]here were some inconsistencies in the child’s several accounts of this incident, and between her version of what happened and her mother’s. There was evidence of animosity among the members of this family. While there was medical testimony that the girl’s scratches and redness were consistent with sexual abuse, the physician’s diagnosis was affected by her credibility, as his diagnosis was premised on her report of appellant’s conduct. The physician acknowledged that had he seen the girl without hearing the story, sexual abuse would have been only one of possible diagnoses, and he would have been puzzled as to the exact cause of what he observed.
“In the presence of the jury, the court declared in effect that Officer Anderson was especially qualified to render his opinion as to whether a person reporting a crime was telling the truth. The officer then stated that he could usually determine ‘with a high degree of accuracy’ whether a child’s statements were true, and that he believed the girl was telling the truth to him. Officer Wells testified that she questioned the girl to try and arrive at the truth, and that she thought she had determined the truth. The court’s comment may well have caused the jury to place undue emphasis on the officers’ testimony. It is reasonably probable that the combined effect of the court’s comment and the improperly admitted opinion testimony was the usurpation of the jury’s function as fact finder.” (Sergill, supra, 138 Cal.App.3d at p. 41.)
In this case, even if we assume that it was improper for Detective Nordskog to render the opinion that the George story was very unlikely, we cannot conclude that Hayes suffered prejudice. Detective Nordskog’s testimony was disputed. The fire department’s report stated the fire was started by a cigarette, and the defense’s expert witness testified that it was possible for a cigarette to ignite a fire outdoors in 50-degree weather. The jury was presented with an opposing expert opinion, and had the opportunity to evaluate both experts and determine, which expert, if either, to believe. If the jury believed Detective Nordskog, it must necessarily reach the same conclusion that he did: that Hayes’s testimony was unlikely.
Detective Nordskog’s testimony could only be harmful if it were possible to believe his expert opinion yet still conclude that Hayes was credible. This was the situation in Sergill. There, the jury could have concluded that the officers recounted their investigation truthfully, but also found that the child victim had been dishonest. In that case, the officers’ credible testimony regarding their first-hand perceptions and matters within their expertise could have improperly bolstered their testimony that the child was truthful, an opinion which was not based on their expertise. Here, Detective Nordskog’s skepticism was based entirely on the discord between Hayes’s story and facts within his expertise, rather than another metric upon which he was not qualified to offer an expert opinion. It would therefore be impossible to believe both Detective Nordskog and Hayes. Unlike the situation in Sergill, if the jury found Detective Nordskog credible, its conclusion that Hayes was lying was inevitable.
There were many circumstances in Sergill that either increased the likelihood that the defendant had been prejudiced, or suggested that he had been prejudiced, that are absent here. The holding in Sergill rested on the combined effect of the expert’s inadmissible opinion and the court’s inappropriate comment that one of the officers was a particularly accurate judge of veracity. There was contradictory evidence, and indications that the case was close, including a prior mistrial in which the opinion testimony had not been admitted.
In this case, the trial court did not comment inappropriately on the qualifications of the expert witness. The jurors were properly instructed under CALCRIM No. 226, that they alone were to judge the credibility or believability of the witnesses. The jury was admonished that it must consider the experts’ opinions and weigh them against each other to the extent that they disagreed, but that they were “not required to accept them as true or correct,” under CALCRIM No. 332. The jurors were further instructed under CALCRIM No. 333 that “[y]ou may disregard all or part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
For all of these reasons, we cannot conclude that Hayes would have obtained a more favorable outcome in the absence of Detective Nordskog’s testimony regarding the likelihood of the George story.
Instructional Error Assault with an Assault Weapon (Count 2)
The trial court twice instructed the jury on the elements of the crime of assault with an assault weapon in count 2. Immediately following voir dire, the court instructed the jurors under CALCRIM No. 875 that “[a]n assault weapon includes SKS rifle.” Prior to deliberations the trial court again instructed the jury under CALCRIM No. 875, this time stating that “[a]n assault weapon includ[es] SKS rifle with a detachable magazine and all AK series rifles.” Both versions of the instruction were included in the written instructions given to the jury.
Hayes contends that the instructions the jury was given regarding the elements of assault with an assault weapon in count 2 were erroneous and conflicting in three respects. First, the written instruction, which provided that an assault weapon includes SKS rifle, was erroneous because section 30510, subdivision (a)(11)’s definition additionally requires that an SKS rifle have a detachable magazine to be considered an assault weapon—i.e., the written instruction erroneously deleted the “with detachable magazine” element. Second, the oral instruction wrongly stated that all AK series rifles are assault weapons. Third, the oral and written instructions were in conflict.
We reject Hayes’s second argument that the instruction that all AK series rifles are assault weapons was legally incorrect. We agree with Hayes that the jury was improperly instructed that an SKS rifle is an assault weapon without including the limitation that it must have a detachable magazine, and that the court gave conflicting instructions on this point, however we conclude that Hayes has not been prejudiced by the errors.
Analysis
Preliminarily, we agree with Hayes that we may review his contention despite counsel’s failure to object to the instructions in the trial court. No objection is required because “a trial court has a sua sponte duty to provide proper instructions on all of the elements of the charged offenses.” (People v. Lewelling (2017) 16 Cal.App.5th 276, 295.) As we discuss below, the trial court’s instructions erroneously defined an element of the offense.
Section 245, subdivision (a)(3) provides that “[a]ny person who commits an assault upon the person of another with a machinegun, as defined in Section 16880, or an assault weapon, as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined in Section 30530, shall be punished by imprisonment . . . .” Section 30510 designates specific semiautomatic firearms as “assault weapons.” As relevant here, the statute designates as assault weapons “[a]ll AK series including, but not limited to, the models identified [in the statute]” (§ 30510, subd. (a)(1)), and “SKS with detachable magazine” (§ 30510, subd. (a)(11)).
We reject Hayes’s argument that instructing the jury that all AK series rifles are assault weapons was error. The statute plainly states that “[a]ll AK series” rifles are assault weapons, and although it identifies several AK series rifles by name, it specifies that the list is not exhaustive. (§ 30510, subd. (a)(1).)
We agree with Hayes that the court’s instruction to the jury prior to opening statements, in which it indicated that SKS rifles are assault weapons without qualification, is an incorrect statement of the law. Section 30510 clearly states the requirement that an SKS rifle have a detachable magazine to qualify as an assault weapon. Under the instruction as given, a defendant could be convicted of assault with an assault weapon for use of an SKS rifle without a detachable magazine, an assault with a firearm that carries a lesser penalty. We also agree that this instruction conflicts with the court’s second, legally correct instruction, which included the limitation that the SKS magazine be detachable.
“‘Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict.’ . . . ([People v.] Chun[ (2009)] 45 Cal.4th [1172,] 1201 [(Chun)].)” (People v. Concha (2010) 182 Cal.App.4th 1072, 1088 (Concha).) “‘[I]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the [necessary] findings . . . , the erroneous . . . instruction was harmless.’ ([Chun, supra,] at p. 1205.)” (Concha, supra, at p. 1088.)
In this case, the verdict form signed by the foreperson stated that Hayes was guilty of assault with an assault weapon, and specifically an SKS rifle. The jury was polled and all agreed this was their individual verdict.
The prosecution presented evidence of a single SKS rifle, found at Hayes’s campsite in the bushes. Senior criminalist Christine Sage performed DNA analyses on the rifle and determined that Hayes was the major contributor to a DNA profile made up of a least four DNA contributors developed from a sample from the rifle’s “stock and receiver” and the major contributor to a DNA profile made up of a least three contributors developed from a sample from the scope. The random match probability for the stock and receiver was one out of 2.9 trillion, and the random match probability for the scope was one in 610 quadrillion.
The rifle and magazine found at the campsite were admitted into evidence and identified by prosecution expert April Whitehead separately—i.e. the magazine was detached. Whitehead testified that, in her opinion, the SKS rifle found at the campsite met the criteria of the state of California’s definition of an assault weapon.
“[Prosecutor]: What particular or specifically makes this an assault weapon?
“[Expert]: So this particular rifle, it was a semiautomatic rifle, a center-fired rifle. That pertains to the type of ammunition. [¶] In addition to that, it did have the capacity to accept a detachable magazine, and it had a grenade launcher.
Whitehead testified that the rifle recovered “does not come with this particular magazine.” She reiterated that the magazine was detachable multiple times.
On cross-examination, defense counsel did not question Whitehead regarding whether the magazine was detachable. The defense did not proffer expert testimony regarding whether the SKS rifle was an assault weapon or had a detachable magazine. Hayes denied using a rifle in any capacity and denied that the recovered SKS rifle belonged to him.
The only evidence indicating that a different weapon may have been used was James’s testimony that Hayes told him he had an AK in the bushes and that James better not chase him, and the recording of James’s 911 call, in which he relayed Hayes’s statement. Deputy Scott Short testified that he was familiar with AK-47 and SKS rifles, and the two are often mistaken for each other. All AK series rifles are assault weapons, and the jury was properly instructed on this point.
In closing argument, defense counsel argued only that the jury could find Hayes guilty of the lesser charge of assault with a firearm if it did not believe the weapon he used was an SKS rifle:
“Assault by means of machine gun or an SKS. Okay. What if you don’t believe it was an SKS? What if you have a reasonable doubt what kind of gun was used? Well, if you do, you vote not guilty on the charge of assault by machine gun or SKS. Then you consider the lesser charge, which is assault with a firearm, and you will see that there’s no SKS requirement of that charge.”
Nothing in the record indicates that Hayes contested that the SKS rifle entered into evidence had a detachable magazine, or that Hayes argued either the SKS rifle or the “AK” James referred to is not an assault weapon. Defense counsel argued only that Hayes may have used some other unidentified firearm of which no evidence had been presented. Hayes effectively conceded the issue of whether the gun introduced in evidence was an assault weapon. (See People v. Flood (1998) 18 Cal.4th 470, 504–505 [instructional error on element of offense harmless beyond a reasonable doubt where defendant “effectively conceded” the issue by failing to object that officers were not “peace officers,” did not argue that prosecution had not proved element beyond a reasonable doubt, and presented no contrary evidence on the issue].) Under these facts, we conclude beyond a reasonable doubt that the error did not contribute to the verdict.
Assault with a Deadly Weapon Instruction (Count 3)
Hayes contends the jury was erroneously instructed under CALCRIM No. 875 that it could convict him of assault with a deadly weapon if it found that a knife was an “inherently deadly weapon,” which was not a valid legal theory. He argues that the error was prejudicial and therefore requires reversal. We agree that CALCRIM No. 875 states an erroneous legal theory, but conclude that the error was harmless.
To consider the charge of assault with a deadly weapon in count 3, the jury was required to determine whether the knife was a deadly weapon other than a firearm. The jury was instructed under CALCRIM No. 875 that: “A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”
“An ‘“inherently deadly or dangerous”’ weapon is a term of art describing objects that are deadly or dangerous in ‘“the ordinary use for which they are designed,”’ that is, weapons that have no practical nondeadly purpose. ([Perez, supra,] 4 Cal.5th [at p.] 1065.)” (People v. Stutelberg (2018) 29 Cal.App.5th 314, 318–319 (Stutelberg).) The jury was not instructed regarding this definition.
A knife is not an inherently deadly weapon as a matter of law. (People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat); In re B.M. (2018) 6 Cal.5th 528, 533.) It was therefore error to instruct the jury regarding this invalid legal theory. (See Aledamat, supra, at pp. 7–8 [error to give inherently deadly weapon instruction because box cutter not inherently deadly as a matter of law]; Stutelberg, supra, 29 Cal.App.5th at pp. 318–319 [same].)
The question is whether the error was prejudicial. Our Supreme Court has recently held that “alternative-theory error is subject to the . . . Chapman harmless error test. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 13.)
In Aledamat, the Supreme Court held that the same type of instructional error complained of here was harmless beyond a reasonable doubt. It based this conclusion on multiple factors. The court determined that in light of the facts that the jury necessarily found, it would be impossible for the jury not to also find that the weapon in that case—a box cutter—was capable of causing and likely to cause death or bodily injury. (Aledamat, supra, 8 Cal.5th at pp. 14–15.)
The three jury findings that the Aledamat court relied on are elements of the offense of assault with a deadly weapon: “(1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person.” (Aledamat, supra, 6 Cal.5th at p. 15.)
The Aledamat court reasoned that the jury “must have considered the term ‘inherently deadly’ to mean something. . . . [T]he theoretical risk is that, because the court did not define the term [inherently deadly], the jury might have applied its common understanding to find the box cutter deadly because it is sharp and used for cutting.” (Aledamat, supra, 6 Cal.5th at p. 15.) The court concluded that “‘No reasonable jury that made all of these findings could have failed to find’ that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury.’ [Citation.]” (Id. at p. 15.)
Like a boxcutter, the weapon used in the instant case—a knife—is “sharp and used for cutting.” (Aledamat, supra, 8 Cal.5th at p. 15.) And, as in Aledamat, in finding Hayes guilty of assault with a deadly weapon, the jury found “(1) [Hayes] did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) [Hayes] was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) [Hayes] had the present ability to apply force with a deadly weapon to a person.” (Aledamat, supra, 8 Cal.5th at p. 15.) The jury could not have made these findings without also finding that Hayes used the knife “in a way that is capable of causing or likely to cause death or great bodily injury.” (Id. at p. 15.) Accordingly, the error was harmless.
Denial of Motion to Substitute Counsel for New Trial Motion
Hayes contends that the trial court violated his Sixth and Fourteenth Amendment rights by denying his motion to substitute counsel to prosecute his motion for new trial. At a Marsden hearing before the filing of the motion for new trial, Hayes gave numerous reasons that substitution of counsel was necessary. On appeal, he contends only that the trial court abused its discretion because his counsel’s conflict of interest arising out of his friendship with Shirwo rose to the level of a constitutional violation. The contention is without merit.
Proceedings
After the jury rendered its verdict, Hayes stated that he wanted to represent himself in a motion for new trial, and that “as far as [defense counsel] goes, there is several major conflicts of interests that is just between him and me; so it’s illegal for him to continue to represent me. I’m not going to tolerate it.” He requested a Marsden hearing, which the trial court held.
At the hearing, Hayes stated that he was concerned because defense counsel was a friend of Shirwo’s and “[h]e’s afraid of rocking the boat and ruffling the feathers of his fellow coworkers at this courthouse.” He complained:
“Now, [defense counsel] is friends with Shirwo. He even said so during the trial during his argument to the jury. He said Mr. Hayes is an A-hole. . . . I’m really not an A-hole. I’m the victim. Shirwo is an A-hole.” “I mean, [defense counsel] told the jury that I felt Shirwo was not in my best interest. It’s not a feeling. It’s knowledge based on facts, and there’s evidence that I could have presented to the jury to prove to the jury that Shirwo was dishonest and screwing up my defense, but [defense counsel] was unaware of this evidence. He didn’t take the time to research it. . . . [¶] . . . He could have brought it in trial. I have a very good reason for kicking Shirwo.”
Defense counsel responded that although he had declared a conflict of interest in the case against Hayes for his attack in Shirwo, he did not declare a conflict of interest in the instant case “because that video was not relevant until Mr. Hayes decided to take the stand and open the door. So it’s his own darn fault that that video came in in the first place. As the court remember[s], I objected strenuously before the introduction of that video. We had a sidebar on it. I told the court that I thought that was an impeachment trap. However, the court overruled my objections and allowed the video to be played to contradict Mr. Hayes’ own testimony.”
The court ruled, “[C]onflict of interest, I agree. One, it wasn’t until he took the stand and injected on his own a statement about ‘I didn’t hit him because he was an old man,’ inviting [the] prosecution to impeach him. And the tape was the only thing that was played. Mr. Shirwo was not called as a witness; so the tape spoke for itself. . . . [H]e was allowed to make this argument [that he was the victim] to the jury. They rejected it . . . . [It was] readily apparent from anybody viewing the video that there was no threat of violence to him at that time that would justify in any way, shape, or form the defendant kicking Mr. Shirwo. So the jury was able to see that; so I don’t think that conflict will prevent from you [sic] moving forward with this case.”
“I do find that counsel has properly represented the defendant and will continue to do so. I don’t find there’s been a breakdown in the relationship to the degree that would make it unlikely that defense counsel could properly represent the defendant.
“I find that any deterioration in the relationship has been caused only by the defendant’s attitude, and there’s no reason to believe the defendant cannot be represented effectively by this attorney.
“Moreover, there’s no reason to believe, based on my observations and statements, the defendant — that he would get along any better with any other attorney I might appoint as was noted by [defense counsel] as to each and every one of his lawyers and [to another judge and the trial court] . . . .”
Legal Principles
“‘When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”’ [Citation.] ‘A trial court should grant a defendant’s Marsden motion only when the defendant has made “a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.”’ [Citation.]
“‘We review the denial of a Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.”’ [Citation.]” (People v. Streeter (2012) 54 Cal.4th 205, 230.)
Analysis
In his opening brief, Hayes’s argument consists of a summary of the United States Supreme Court’s opinion in Christeson v. Roper (2015) 135 S.Ct. 891 (Christeson) and the following: “Here, appellant fully incorporates the facts and arguments elucidated in IV, ante. Assuming, without conceding, that reversal is not warranted, appellant further contends that the substitution motion was erroneously denied due to defense counsel’s conflict of interest under compulsion of Christeson v. Roper, supra, 135 S.Ct. at p. 891, 892, 894, 895, 896, which contravened the Sixth and Fourteenth Amendments.”
As we have discussed, Hayes’s arguments in section IV of his opening brief lack merit, and thus cannot be a basis for concluding that the trial court abused its discretion by refusing to substitute counsel. Hayes’s brief is devoid of any discussion regarding how his recitation of the Supreme Court’s opinion in Christeson dictates a different result.
In Christeson, the United States Supreme Court considered whether the District Court abused its discretion in denying a federal habeas corpus petitioner’s second request for substitution of federally-appointed counsel under the “interests of justice” standard. (Christeson, supra, 135 S.Ct. 891.) Christeson’s habeas corpus petition had been dismissed as untimely because his attorneys missed the “strict 1–year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1).” (Id. at p. 892.) Christeson’s attorneys had been appointed nine months before his habeas corpus petition was due, yet his attorneys failed to meet with him until six weeks after the deadline had passed. (Ibid.) Although the attorneys claimed they had simply miscalculated the one-year deadline, in a report submitted to the District Court, a legal ethics expert, stated: “‘[I]f this was not abandonment, I am not sure what would be.’ [Citation.]” (Ibid.)
As the court characterized it, “Christeson’s only hope for securing review of the merits of his habeas claims was to file a motion under Federal Rule of Civil Procedure 60(b) seeking to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. But [his attorneys] could not be expected to file such a motion on Christeson’s behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition.” (Christeson, supra, 135 S.Ct. at pp. 892–893.) Outside counsel twice moved for substitution, and were denied. The Supreme Court stayed execution and reversed, holding that a “significant conflict of interest” had arisen between Christeson and his attorneys because his “attorney[s’] ‘interest in avoiding damage to [their] own reputation[s]’ [were] at odds with [their] client’s ‘strongest argument—i.e., that his attorneys had abandoned him.’” (Id. at p. 894.) Under the circumstances, Christeson was entitled to the assistance of substitute counsel. (Id. at p. 896.)
In this case, the perceived conflict was not that defense counsel would be forced to argue that his own performance was deficient, but that he might have to negatively portray a colleague. In short, unlike Christeson’s counsel, defense counsel’s “‘interest in avoiding damage to his own reputation’ was [not] at odds with his client’s ‘strongest argument.’” (Christeson, supra, 135 S.Ct. at p. 896.) The situations are not comparable.
Multiple Punishment
Following our review of the record, we sent a letter to the parties informing them as follows and inviting supplemental briefing: “The record reflects that Mr. Hayes’s convictions of possession of a firearm by a felon in counts 7, 11, and 15, all involved the same firearm, an SKS rifle. The trial court stayed the sentence in count 11 pursuant to Penal Code section 654. However, the trial court imposed consecutive sentences in counts 7 and 15, apparently in contravention of People v. Spirlin (2000) 81 Cal.App.4th 119, which holds that possession of the same firearm on different dates is a single act with a single objective subject to a single punishment only. (Id. at p. 131, quoting People v. Butler (1996) 43 Cal.App.4th 1224, 1248 [“‘[w]here multiple punishment has been improperly imposed, “. . . the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term.”’”].)
The People concede that Hayes was charged with possession of the same weapon on three different dates, such that imposition of sentence in more than one count would constitute improper multiple punishment. We order the judgment modified to reflect that execution of the sentence in count 15 is stayed.
Ineffective Assistance of Counsel at Sentencing
Hayes contends that counsel rendered ineffective assistance at the sentencing hearing on three different grounds.
A defendant claiming ineffective assistance of counsel must demonstrate (1) that counsel’s representation fell below an objective standard of reasonableness measured against prevailing professional norms, and (2) prejudice, or a reasonable probability that but for counsel’s failing, the defendant would have obtained a more favorable result. (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189; Strickland v. Washington (1984) 466 U.S. 668, 687, 694 (Strickland).) “Counsel’s duty at sentencing is to be familiar with the sentencing alternatives available to the court, to make sure that the court is aware of such alternatives, . . . and to be certain that the sentence imposed is based on complete and accurate information.” (People v. Cotton (1991) 230 Cal.App.3d 1072, 1085; People v. Cropper (1979) 89 Cal.App.3d 716, 719.)
Mitigating Factors
Hayes first contends that defense counsel’s representation was deficient at sentencing because counsel incorrectly believed he was constrained by California Rules of Court, rule 4.423. The contention lacks merit.
Proceedings
At sentencing, defense counsel asked for a continuance to present evidence that Hayes had been diagnosed with anti-social personality disorder and evidence that he had been severely beaten by his father as an infant, for which his father had been imprisoned. The trial court denied the continuance, but ultimately considered these mitigating factors. The court imposed the high term of 12 years in count 2, based on finding multiple aggravating factors, which was doubled to 24 years pursuant to Hayes’s strike conviction. The trial court also imposed the high term of 10 years for the firearm use enhancement under section 12022.5, subdivision (a), on the basis of multiple aggravating factors.
After the trial court pronounced the sentence in count 2 and the corresponding enhancements, Hayes engaged the trial court in the following discussion:
“[Hayes]: [A]ren’t I allowed to present mitigating evidence?
“[The Court]: [Defense counsel] argued of the injuries you suffered as a child, as he’s representing, and the fact you’ve been diagnosed with an anti[-]social personality disorder.
“[Hayes]: I don’t recall ever been [sic] diagnosed with an anti personality [sic]. Anyways, that’s pretty — that’s a pretty lame mitigating argument right there compared to what could be presented. I mean, there’s a lot more. What about how I could — what about the evidence that Catherine Fiore committed perjury? Which, of course, was not presented here.
“[The Court]: We’re going to stop now. We’re not going to relitigate the case. . . .
“[Hayes]: Am I not allowed to present mitigating evidence?
“[The Court]: That is not mitigating evidence. No, you are not, not that kind of mitigating evidence. Your attorney has a right to present what he feels is appropriate. I considered his arguments. I’m moving forward.
“[Hayes]: Okay. So what if I have mitigating evidence that I would like to present that [defense counsel] is unaware of because he’s too lazy to take the time to research the case and communicate with me properly? [¶] . . . [¶] Anyways, so are you telling me that I’m just not going to be allowed to present this just because [defense counsel] doesn’t want to present this? It’s obvious he just wants to railroad me, get his money, and forget about me.
“[The Court]: [Defense counsel], does your client have anything that the court can consider as legitimate mitigating circumstances that has nothing to do with the facts of the trial? I’m not going to litigate the facts of the trial.
“[Defense counsel]: Not that I’m aware of.
“[The Court]: Do you want to ask him right now?
“[Defense counsel]: The pattern has been to raise grievances in the past.
“[The Court]: That’s correct. As to your conduct, the court’s conduct, the D.A.’s conduct.
“[Defense counsel]: And —
“[The Court]: None of those are mitigating.
“[Defense counsel]: And the evidence that was presented at trial. The court’s correct. I’m bound by the rules of 421. [¶] . . . [¶] I presented all the evidence I could that possibly came under one of those rules. I did as the court asked me to and filed the motion. But I will ask Mr. Hayes. [¶] You want to tell me something Mr. Hayes?
“[Hayes]: There’s a lot of things. I want to go over the discovery. There’s still crucial discovery I haven’t even seen.
“[Defense counsel]: I’ll take the chance.
“[The Court]: Okay. And I think —
“[Defense counsel]: I do not have any confidence that he’s going to raise any sentencing mitigation.”
The court reiterated that it was not going to relitigate the case, and then went through California Rules of Court, rule 4.423, subdivision by subdivision, and explained to Hayes that, where relevant, the court had considered his mitigating evidence, including the mitigating evidence of his mental disorder, and the evidence that Hayes had been beaten as a child.
The court concluded, “And I have heard the defendant already speak many times. I don’t need to hear him speak now and tell me everything everybody is doing is wrong. [¶] . . . [¶] So I’m not going to invite Mr. Hayes to make a statement at this time based on what I anticipate him to relitigate the case and argue all the faults in the process because I think I’ve given him ample opportunity to do that.”
Legal Principles
California Rules of Court rule 4.420 provides that the trial court has discretion to select the lower, middle, or upper term as to each count and may consider circumstances in aggravation or mitigation, and “any other factor reasonably related to the sentencing decision.” (Cal. Rules of Court, rule 4.420 (a) & (b).) California Rules of Court rules 4.421 and 4.423 enumerate factors that may be considered in aggravation and mitigation, respectively. Each rule contains a “catchall” category for “other factors statutorily declared to be circumstances [in aggravation or mitigation, as appropriate to the rule] or that reasonably relate to the defendant or the circumstances under which the crime was committed.” (Cal. Rules of Court, rules 4.421(c) & 4.423(c).)
Analysis
Having reviewed the record, it is clear that defense counsel, who discussed mitigating factors with the court at length, misspoke and cited to “421”—shorthand for California Rules of Court, rule 4.421, relating to aggravating factors—rather than its sister rule, California Rules of Court, rule 4.423, relating to mitigating factors. This verbal slip does not appear to have adversely affected defense counsel’s arguments on Hayes’s behalf, and other than pointing out that counsel incorrectly cited the law, Hayes does not claim that he was harmed by the mistake.
We reject Hayes’s argument that defense counsel wrongly believed that he was constrained by California Rules of Court, rule 4.423. Although “the circumstances listed in rule 423 are illustrative, not exclusive,” (People v. Covino (1980) 100 Cal.App.3d 660, 671 (Covino)), they are not without limit. The catchall provision of the rule allows for presentation of statutorily declared mitigating circumstances and factors that “reasonably relate to the defendant or the circumstances under which the crime was committed.” (Cal. Rules of Court, rule 4.423(c).) Neither Hayes’s statement that Catherine Fiore committed perjury or that he wanted to go over discovery again was a circumstance relating to either defendant or the crime committed. Likewise, any complaints about the trial court, attorneys, court staff, or other witnesses would have been relevant to the trial court’s sentencing decision.
Covino, supra, is inapposite. In Covino, although the defendant had presented letters from his attorney, employer, and a friend stating that he “had a good job, was a valued employee, had the qualities of efficiency, intelligence, loyalty, and kindness, but had had an unhappy marriage and child visitation problems, and a drinking problem,” the trial court improperly found no mitigating factors. (Covino, supra, 100 Cal.App.3d at p. 670.) Because these factors were reasonably related to the defendant, the Court of Appeal remanded for express consideration of all mitigating factors. (Id. at pp. 671–672.) Here, Hayes raised no further mitigating factors at the sentencing hearing, despite two opportunities, and does not list additional mitigating factors in his opening brief. Trial counsel’s performance was not deficient.
Discretion to Impose Concurrent Sentences
Hayes next contends that trial counsel was deficient because he was unaware of authorities permitting discretionary imposition of concurrent sentences in counts 14 and 15, which occurred on the same occasion and/or arose from the same set of operative facts. In light of our conclusion that the three counts of felon in possession of a firearm constituted a single, continuous crime, we do not believe the argument that counts 14 and 15 occurred at the same time is viable, nor do they appear to arise from the same set of operative facts—the firearm was not used to recklessly start the wildfire. Regardless, Hayes has not shown that he suffered prejudice, as the trial court explicitly stated that it would not exercise its discretion to impose concurrent sentences even if it possessed that discretion.
In his sentencing memorandum, defense counsel requested that concurrent sentences be imposed in counts 2, 3, 6, and 7, because they arose from the same feud between Hayes and Allen and involved a single motive. The defense also requested that all three possession of a firearm by a felon counts—counts 7, 11, and 15—be run concurrently because they “seem to overlap.” Each of the counts was for possession of the same firearm over a different time period, and therefore constituted a single instance of possession of a firearm.
At the sentencing hearing, the trial court asked if it had the authority to run sentences concurrently in a second strike case: “You’ve asked me to run things concurrent, but I don’t think there is authority to do [that]. I’m trying to figure out under what theory I can run anything concurrent in a second strike case.” Defense counsel ultimately responded that he was not aware whether or not concurrent sentences would be authorized in a second strike case. The prosecutor asserted that the sentences could not be imposed concurrently pursuant to section 1170.12, subdivisions (a)(6) and (a)(7).
The trial court stated: “Okay. So requesting the imposition of concurrent term of imprisonment, that will be respectfully denied. I don’t think there’s authority for the court to do that. Even if there was the authority, the court wouldn’t exercise its discretion to do so. In the event that I’m incorrect and we’re all incorrect as to whether I have the authority to do it, I’m indicating that I would not do that even if I did have the authority to do it.”
It is well settled that a reviewing court need not determine whether counsel’s performance was deficient before examining whether the defendant suffered prejudice as a result of alleged deficiencies: “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.) Here, there can be no doubt that the trial court would decline to exercise its discretion to sentence Hayes to concurrent sentences in counts 14 and 15, even if it had the authority. We cannot conclude that Hayes was prejudiced by counsel’s assertedly deficient performance.
Romero Motion
At the sentencing hearing, defense counsel orally invited the court to exercise its discretion to strike Hayes’s prior strike convictions under section 1385 and Romero, supra, 13 Cal.4th 497, as follows:
“[Defense counsel]: Mr. Hayes, in addition to the motion I filed, is inviting the court to exercise its discretion under People v. Romero as well.
“The Court: I don’t have a written Romero in front of me.
“[Defense counsel]: It’s not a motion I make. The Court and the People have the discretion. I can only invite the Court to do it.
“The Court: You’re saying that you can’t make a Romero motion?
“[Defense counsel]: Technically, legally, if you look at the law, it says you have the discretion, and the People have the discretion.
“The Court: I know, but you have to make the motion requesting the Court to exercise the discretion.
“[Defense counsel]: Right. I’m inviting the court to exercise its discretion under People v. Romero. I’m doing that orally.
“The Court: Well, you’re not making a motion for me to do it then; you’re just giving me on a sua spontae [sic] to do it?
“[Defense counsel]: Based on my understanding of the law, I don’t move for it because I don’t have the authority. The Court does that. I’m inviting the Court to exercise its discretion.
“The Court: Okay. It needs to be presented by way of a motion. And in the motion, you would make that invitation, if that’s the word that you want to use to describe it, but it’s still a motion. I don’t have that motion before me. And I’ve indicated countless times I wanted to have all motions in writing.”
On appeal, Hayes argues only that counsel was ineffective for failing to file a written Romero motion. We disagree.
As a practical matter, defense counsel routinely make oral and written motions to strike pursuant to Romero, which trial courts entertain. However, in People v. Carmony (2004) 33 Cal.4th 367, 375, our Supreme Court held that “[a] defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. But [the defendant] does have the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 375.) Carmony does not limit a defendant’s application to the court to written invitations. Thus, defense counsel was under no obligation to make a written motion—his oral invitation to the trial court to exercise its discretion under section 1385 was proper under Supreme Court precedent. Accordingly, we conclude that counsel’s performance was not deficient with respect to this issue.
Even if counsel’s performance had been deficient, however, Hayes has not shown prejudice. The trial court imposed the high term in both the principal count and the firearm use enhancement. The court was aware of its ability to impose lesser terms, and expressly declined to do so or to strike the firearm use enhancement. The trial court also clearly indicated that even if it had discretion to impose concurrent rather than consecutive sentences, it would not do so. The court repeatedly referred to Hayes’s crimes as a “reign of terror.” On this record, we cannot say that it is reasonably probable that Hayes would have obtained a more favorable result if defense counsel had filed a written Romero motion with the trial court.
Prior Conviction Enhancement
Hayes contends that under recently enacted Senate Bill No. 1393, the trial court has discretion to strike the 5-year prior serious felony conviction enhancement imposed under section 667, subdivision (a)(1), which applies to him retroactively. He asserts that the case should be remanded to allow the trial court to exercise its discretion to strike the enhancement because the court lacked the power to do so at the time of sentencing. The People concede the amendments effectuated by Senate Bill No. 1393 apply retroactively, but contend remand is not appropriate in this case, because it would be futile.
Senate Bill No. 1393 “provides [the trial court] discretion to impose a lesser sentence, and . . . there is nothing in the amendment to suggest the Legislature intended it to apply prospectively only.” (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090 [discussing Senate Bill No. 620].) By analogy to Senate Bill No. 620, we hold that Senate Bill No. 1393 applies retroactively to cases pending on appeal in which the court lacked the discretion to strike a 667, subdivision (a)(1) enhancement at the time of sentencing. The judgment in Hayes’s case was not final when Senate Bill No. 1393 took effect on January 1, 2019. (See People v. Vieira (2005) 35 Cal.4th 264, 306, quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 [“‘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’”].) Accordingly, the amended legislation applies to his case retroactively.
We agree with the People that remand is not appropriate, however. Resentencing is not required where “‘the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.’ ([People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896].)” (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.)
As we have discussed, the trial court had discretion to impose a considerably lesser sentence by imposing the middle or lower term in the principal count and imposing a lower term or striking the firearm use enhancement. Although the trial court believed that it lacked discretion to impose concurrent sentences in counts 14 and 15, it was adamant that it would not even if it did have the authority. The trial court spoke at length regarding the danger Hayes poses to society and referred to his crimes as a “reign of terror.” We agree with the People that remand would be futile in this case.
Request for Evidentiary Hearing
Hayes requests that we remand for an evidentiary hearing on the denial of his right to self-representation, the right to conflict free assistance of counsel, and his right to due process. As we have discussed at length, we conclude that the evidence set forth in the record is more than ample to allow us to review these issues. We have concluded that Hayes was not wrongly denied his right to self-representation and was not prejudiced by his counsel’s conflict of interest. We therefore decline Hayes’s request to remand for an evidentiary hearing on these matters.
Senate Bill No. 136
In supplemental briefing, Hayes argues that recently enacted Senate Bill No. 136 applies retroactively to his case, and requests that the cause be remanded for full resentencing. We agree that the legislation applies, but conclude that remand is unnecessary.
As relevant here, section 667.5, former subdivision (b), mandated that a one-year enhancement be imposed “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; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement.”
Following the enactment of Senate Bill No. 136, which became effective on January 1, 2020, section 667.5, subdivision (b)’s one-year enhancement is now only imposed if the prior prison term was served for a sexually violent offense, as defined in the statute. (§ 667.5, subd. (b).)
“Unless there is evidence to the contrary, courts presume that the Legislature intends for a statutory amendment reducing criminal punishment to apply retroactively in cases that are not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747–748; People v. Brown (2012) 54 Cal.4th 314, 324.)” (People v. Robbins (2018) 19 Cal.App.5th 660, 678.) The trial court imposed the section 667.5, subdivision (b) enhancement in Hayes’s case based on his conviction for first degree burglary in violation of section 459, and imposed and stayed section 667.5 enhancements based on his convictions for violations of section 4502, subdivision (b), section 666.5, subdivision (a), and Vehicle Code section 10851, none of which is a sexually violent offense. Senate Bill No. 136 eliminates the one-year prior prison term enhancement for all felonies that are not sexually violent offenses, and thus lessens the penalty for prisoners, like Hayes, whose prior prison terms were imposed for non-sexually violent felonies. Hayes’s appeal was not yet final on January 1, 2020, when Senate Bill No. 136 became effective. Accordingly, Senate Bill No. 136 applies in his case.
Contrary to Hayes’s arguments, however, remand is not necessary. Because section 667.5, subdivision (b) no longer authorizes imposition of enhancements based upon the offenses for which Hayes was convicted, the error is a question of law over which the trial court has no discretion, and it is not necessary to hold a resentencing hearing to correct it. (People v. Ross (1994) 28 Cal.App.4th 1151, 1160 [remand is not necessary where there is no need for the trial court to exercise discretion].) We therefore order that the abstract of judgment be modified to reflect that the one-year enhancement imposed, and the three 1-year enhancements imposed and stayed, under section 667.5, subdivision (b) are stricken. (People v. Scott (1994) 9 Cal.4th 331, 354 [an unauthorized sentence is subject to correction when it comes to the attention of the reviewing court].)
DISPOSITION
The judgment is modified to reflect that the sentence imposed in count 15 is stayed, and the four 1-year prior felony conviction enhancements imposed under 667.5, subdivision (b) are stricken. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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