Filed 1/9/20 P. v. Boxley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRANCE DARNELL BOXLEY,

Defendant and Appellant.

C085032

(Super. Ct. No. 16FE014643)

Following a jury trial, defendant Terrance Darnell Boxley was convicted of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); statutory section references that follow are to the Penal Code, unless otherwise stated). The trial court sustained six prior prison term allegations (§ 667.5, subd. (b)) and sentenced defendant to a seven-year state prison term.

On appeal, defendant contends the trial court should have dismissed the charge as a sanction for police destruction of potentially exculpatory evidence, and the court prejudicially erred in allowing him to be impeached with two prior convictions. In a supplemental brief, he claims the prison priors must be stricken pursuant to Senate Bill No. 136. We remand for resentencing with directions to strike the prison priors, and affirm the judgment in all other respects.

FACTS AND LEGAL PROCEEDINGS

Prosecution Case

At around 11:30 p.m. on July 30, 2016, Sacramento County Sheriff’s Deputy Mark Cherry and Sergeant Brad Rose were on patrol in their unmarked vehicle. They noticed defendant riding a bicycle that was swerving back and forth across traffic. The driver, Sergeant Rose, followed defendant and turned on the the patrol car’s emergency lights. Defendant turned around, looked at the officers, and asked, “What did I do?” Deputy Cherry replied, “Sheriff’s department. Stop the bike.” Sergeant Rose blew the patrol car’s horn.

Defendant started pedaling his bicycle faster away from the officers. Sergeant Rose drove next to defendant and yelled, “Sheriff’s department, stop your bike.” Defendant then reached into his waistband and removed a revolver with a red bandanna wrapped around the handle.

Sergeant Rose turned the patrol vehicle into defendant, knocking him off the bicycle. As defendant fell off the bicycle, Deputy Cherry heard a metal object hitting the ground. He saw a revolver on the ground, several feet from defendant’s head. Sergeant Rose retrieved the .22-caliber revolver with the handle wrapped in a red bandanna. It was loaded with six live rounds and appeared to be functional.

The parties stipulated defendant was previously convicted of a felony in California.

The Defense

Testifying on his own behalf, defendant admitted suffering four prior felony convictions and a prior misdemeanor conviction.

On the night in question, defendant was riding his bicycle from his sister’s home, where he lived, to his cousin’s home. He was listening to music on a Bluetooth speaker connected to his cell phone. Although it could play music through the Bluetooth connection, the phone could not make calls at that time. The cell service had been disconnected about two weeks before the day of the incident.

As defendant rode past a school, he saw a red bandanna on the sidewalk in front of the curb. Seeing something sticking out from the bandanna, defendant stopped to investigate, and discovered the bandanna was wrapped around a handgun. Defendant decided to pick up the gun because he had children and the gun was in front of a school. He picked it up by the bandanna and put the gun into his jacket pocket. Defendant intended to drop the gun off at a local casino a block and a half away because police and security were always at that location.

As he rode towards the casino, defendant saw a car with tinted windows and a slightly open door pull up behind him “kind of . . . real fast.” Defendant did not know this was a police vehicle. He did not see any red or blue police lights, and did not hear officers yelling at him or the horn blow because his music was playing.

Trying to pedal faster, defendant pulled up his pants, which caused the gun to slip out of his jacket pocket. Defendant put his hand in his pocket to move the gun between his legs. He was hit with the car while he had his hand in the pocket, trying to adjust the gun.

When defendant hit the ground, a man jumped on top of him and tried to grab his hands. Defendant realized the man was a police officer, who told defendant to stop resisting. He told the officer, “I just found that gun right there, I was going to go get rid of it.”

DISCUSSION

I

Failure to Preserve Mobile Phone

Defendant contends the trial court erred in denying his motion to dismiss the prosecution pursuant to California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281] (Youngblood) based on the failure to preserve his cell phone that was seized from him upon his arrest.

Defendant filed a pretrial motion to dismiss for failing to preserve his cell phone. The motion asserted preserving the cell phone would allow him to show the phone could not make calls, thus explaining why he did not call the authorities after finding the gun.

At the hearing on the motion, Sergeant Rose testified that after he picked up the firearm, defendant said he had found the gun just before his contact with law enforcement. Sergeant Rose then asked the defendant why he did not call and report the discovery to law enforcement. On cross-examination, Sergeant Rose testified that defendant said he was going to contact the police about the gun, but did not say how he was going to do it. Defendant’s phone appeared to be functional, as it had to be powered down before he was booked. Sergeant Rose did not ask defendant whether his phone was operational or whether he had phone service. The cell phone, which was not a smart phone, but an older model that was not very valuable, was put inside the backpack for safekeeping, where it resided with other personal belongings of defendant.

Randy Boone, a civilian property officer for the sheriff’s department, described the department’s property receipt report. Property designated for safekeeping by the booking officer was the arrestee’s personal property that was not deemed evidence in the case. Booking or arresting deputies were supposed to provide an arrestee with a copy of the property receipt. The back of the receipt contained instructions for retrieving property held for safekeeping.

The report on defendant’s case showed that some property in a backpack was designated for safekeeping. The report did not specify that defendant’s cell phone was in the backpack. According to the report, defendant’s property was clearable on November 16, 2016. Defendant’s backpack and its contents were sent to the dump for disposal at that time.

The trial court found there was at least an argument over whether the phone’s functionality had some evidentiary value, so it fell in the category of potentially useful evidence. Finding no bad faith in the destruction of the cell phone through normal procedures, the trial court denied defendant’s motion.

“The state has a duty to preserve evidence that both possesses ‘an exculpatory value that was apparent before the evidence was destroyed,’ and is of ‘such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ([Trombetta, supra,] 467 U.S. [at p. 489].) Moreover, a constitutional violation is not established unless the authorities acted in bad faith in failing to preserve potentially useful evidence. ([Youngblood, supra,] 488 U.S. [at p. 58].)” (People v. Schmeck (2005) 37 Cal.4th 240, 283, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-638; accord People v. Carrasco (2014) 59 Cal.4th 924, 961.)

The cell phone did not appear to have evidentiary value when it was destroyed. The phone had power when it was seized. There was no reason to believe it was inoperable or could not be used to make calls. Nothing on the record indicates defendant told the arresting officer or any other law enforcement officer that his phone was inoperable. Defendant was asked why he did not call the police about the gun. While the record shows defendant said he intended to call the police about the gun, there was no evidence at the Trombetta/Youngblood hearing that he told the police his phone was not functional, or that he planned to use some other means of calling law enforcement officers. Defendant also fails to meet the second prong of Trombetta/Youngblood. Even though the phone had been destroyed, phone company records should have been able to establish when the phone had cell service and when the service was terminated. Moreover, the records should have shown the date when defendant was no longer making calls. Records showing that he continued to make calls on the phone up to the date of arrest would tend to show the phone was working. But if the records showed he had not made calls on the phone for some period of time before the arrest but had regularly made calls before the time no calls were made, those records would corroborate defendant’s story, even if the service was not terminated until some later date.

Finally, there was no bad faith in destroying a cell phone of no apparent evidentiary value in accordance with standard police procedures for destroying unclaimed seized property. The trial court did not err in denying the motion.

II

Impeachment by Prior Felony Convictions

Defendant contends the trial court abused its discretion in allowing him to be impeached with prior felony convictions for furnishing a controlled substance to a minor and child endangerment.

After defendant testified that he took the gun because it was near a school and he had children himself, the prosecution impeached him with two prior convictions as follows:

“Q. Isn’t it true that in September of 2000, you were convicted — actually I take that back. In May of 2001 you pled no contest or guilty to a violation of Health and Safety Code section 11353 which is that you did unlawfully being a person of 18 years of age or older sell, . . . furnish, administer, give and offer to sell, furnish and administer and give to Alicia M., a minor, a controlled substance, to wit, cocaine base; isn’t that true?

“A. Correct.

“Q. And in that same case you also pled to Count Three which was that you did willfully and unlawfully under circumstances likely to produce great bodily harm and death, injure, cause and permit a child Alicia M., age three years to suffer and be inflicted with unjustifiable physical pain and mental suffering and having the care and custody of said child injure, cause and permit the person and health of such child to be injured and did willfully cause and permit said child to be placed in such situation that his/her person and health was in danger, correct?

“A. Can I answer that with an explanation?

“Q. The answer is yes or no, did you plead to that?

“A. I pled to that.”

Defense counsel subsequently stated his Evidence Code section 352 objection to this evidence in a sidebar had been denied, and counsel had not been aware of the particular facts of the crimes.

Evidence Code section 352 permits the exclusion of relevant evidence where “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.” (Evid. Code, § 352.) We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 49.)

The trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed unless the court acted in an “arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) “Because the court’s discretion to admit or exclude impeachment evidence ‘is as broad as necessary to deal with the great variety of factual situations in which the issue arises’ [citation], a reviewing court ordinarily will uphold the trial court’s exercise of discretion. [Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 932.)

Defendant admits the evidence was relevant. Since defendant testified that he picked up the gun because it was by a school and he had children, the prior convictions were relevant to impeach him on his concern for the well-being of children. He contends the evidence should not have been admitted because it was unduly prejudicial and “not that probative as it did not negate his concern that children not be killed by guns.”

“ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ [Citation.]” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Prior convictions for felonies with children as victims carry great potential to be damaging to a defendant. However, defendant put his concern for children into play by claiming to possess the gun temporarily out of concern for the safety of children. The damage to defendant done by the impeaching evidence here is not by invoking emotional bias against defendant from the nature of the convictions, but because it impeaches his “for the children” defense. Having placed the issue of his concern for child safety to the jury, defendant cannot complain when his full record on this subject is brought forth. It was not an abuse of discretion to admit the evidence.

III

In the supplemental briefings, the parties addressed the recent amendment to section 667.5, subdivision (b) pursuant to Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (Senate Bill 136). On October 8, 2019, the Governor signed Senate Bill 136 into law. Effective January 1, 2020, Senate Bill 136 amends section 667.5, subdivision (b), to remove the one-year enhancement for prior prison terms, except when the offense underlying the prior prison term was a sexually violent offense. (See § 667.5, subd. (b) [“Where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code”].)

Since Senate Bill 136 reduces sentences for a crime it applies retroactively to convictions not final on appeal absent evidence of a contrary legislative intent. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) Senate Bill 136 therefore applies to this case.

None of the prior convictions in the enhancements qualify under the amended statute as they are not sexually violent felonies, so the enhancements cannot stand. The parties agree that the matter should be remanded for resentencing, with directions to strike the priors. We concur. Since the prison priors formed a substantial portion of defendant’s sentence, the trial court must be allowed to exercise its sentencing discretion. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”].)

DISPOSITION

The matter is remanded for resentencing, with directions to strike the prior prison term enhancements. In all other respects, the judgment is affirmed. Following resentencing, the trial court is directed to prepare a new abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

HULL, Acting P. J.

We concur:

MURRAY, J.

HOCH, J.