People v. Thrower CA5 ( 2021 )


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  • Filed 6/28/21 P. v. Thrower CA5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    THE PEOPLE,
    F075926
    Plaintiff and Respondent,
    (Super. Ct. No. BF165348C)
    v.
    ROBERT BEAR THROWER, JR.,                                                                OPINION
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Kern County. John R.
    Brownlee, Judge.
    Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant
    and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
    General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Rachelle A.
    Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
    -ooOoo-
    Defendant Robert Bear Thrower, Jr., was convicted by jury of attempted murder.
    The jury also found true two firearm use allegations. On appeal, he contends (1) his right
    to conflict-free counsel was violated because he was represented by his codefendant’s
    counsel at a pre-preliminary hearing where he made two self-incriminating statements;
    (2) the trial court abused its discretion when it refused to exclude his pre-preliminary
    hearing statements under Evidence Code section 352; (3) remand is necessary to allow
    the trial court to exercise its discretion to strike his firearm enhancements pursuant to
    Senate Bill No. 620; and (4) his four prior prison term enhancements should be stricken
    pursuant to Senate Bill No. 136. We order the prior prison term enhancements stricken
    and remand for the trial court to consider whether to strike the firearm enhancements. In
    all other respects, we affirm.
    PROCEDURAL SUMMARY
    On October 17, 2016, the District Attorney of Kern County filed an information
    charging defendant with attempted murder of Don Lacey (Pen. Code §§ 664, 187,
    subd. (a);1 count 1), attempted robbery of an inhabited dwelling while voluntarily acting
    in concert with two or more persons (§§ 664, 213, subd. (a)(1)(A); count 2), attempted
    second degree robbery (§§ 664, 212.5, subd. (c); count 3), and being a felon in possession
    of a firearm (§ 29800, subd. (a)(1); count 4). As to count 1, the information further
    alleged that defendant acted with premeditation and deliberation (§ 189). As to counts 1,
    2, and 3, it was alleged defendant intentionally and personally discharged a firearm in the
    commission of the crime (§ 12022.53, subd. (c)), and intentionally and personally
    discharged a firearm in the commission of the crime causing great bodily injury
    (§ 12022.53, subd. (d)). As to all counts, it was alleged defendant had served five prior
    prison terms (§ 667.5, subd. (b)). Defendant pled not guilty and denied all special
    1      All statutory references are to the Penal Code unless otherwise noted.
    2.
    allegations. Before the jury began deliberating, the trial court dismissed counts 2 and 4 at
    the prosecution’s request.
    On May 11, 2017, a jury found defendant guilty of count 1 and not guilty of
    count 3. As to count 1, the jury found not true the premeditation and deliberation
    allegation, but found true both firearm allegations.2 In a bifurcated proceeding, the trial
    court dismissed one prior prison term allegation at the prosecution’s request and found
    true the remaining four prior prison term allegations.
    On June 28, 2017, the trial court sentenced defendant to 13 years plus 25 years to
    life on count 1 as follows: the upper term of nine years, plus four one-year prior prison
    term enhancements (§ 667.5(b)), a 25-year-to-life firearm enhancement (§ 12022.53(d)),
    and a stayed 20-year firearm enhancement (§ 12022.53(c)).
    FACTUAL SUMMARY
    On August 25, 2016, Don Lacey went to a hotel to purchase drugs. When he
    arrived, he exchanged a tablet for a “sack of methamphetamine.” Afterwards, he
    approached Paul Morris. According to Morris, Lacey wanted to “kick it with a female
    and buy some dope.” Morris pointed out a few girls, but Lacey changed his mind. Lacey
    was about to leave when he saw his neighbor’s daughter, Shantel Taylor. Lacey asked
    Taylor if she wanted to get high. They then went into room 100. Within minutes,
    defendant, Morris, and Ronald Hartfield entered the room. Taylor was lying on the bed
    and Lacey was sitting on a chair.
    Defendant asked Taylor what she was doing in the room. Taylor, who testified
    she was a prostitute, told defendant she was on a “date” with Lacey. According to
    Taylor, defendant was angry because she was pregnant and was not supposed to be using
    drugs or prostituting. Defendant checked her pockets for money. Lacey asked, “Should I
    2       We note that the reporter’s transcript reflects that the clerk read the verdicts in court as
    including a true finding on the premeditation and deliberation allegation (§ 189); however, the
    jury’s written verdict clearly shows a not true finding, as does the clerk’s minute order.
    3.
    exit the room and let you handle your business?” Defendant then turned his attention to
    Lacey and responded, “Don’t talk to me. You don’t know me. I say shit to you. Mind
    your business. Where you from? What you got in your pockets?” Lacey told him he did
    not have anything in his pockets, and he did not “gang bang.” Defendant attempted to
    reach into Lacey’s pockets, but Lacey slapped his hand away. Thereafter, defendant
    pulled out a revolver. After exchanging a few more words, Lacey got up and began
    walking toward the door and defendant shot him. Lacey suffered two gunshots to the
    upper body.
    After the shooting, Lacey ran out of the room in search of help. As Hartfield was
    leaving the hotel, he saw Lacey outside clutching his chest. Hartfield told him that if he
    stayed there, he was going to die; Hartfield called 911 and left. Lacey was collapsed in
    the middle of the street by the time police and medical assistance arrived. Meanwhile,
    defendant went back to his room at the hotel, accompanied by Taylor and another female
    nicknamed Star.3 Defendant’s girlfriend, Jillian Hinzo, was asleep in his room when they
    walked in. Defendant handed Hinzo a gun and told her to get rid of it. She put it in her
    purse and stuck it in a bush near a street. Later that day, she and Star went back and
    retrieved the gun. They took it to Star’s mother’s house and then went back to the hotel
    where they spoke with an officer. The officer took them back to Star’s mother’s house to
    get the gun.
    Officer Jesse Perez testified he recovered a black revolver from Star’s mother’s
    house. There were two spent rounds and two live rounds in it. He explained that in a
    revolver, the spent shell casings remain inside of it, whereas in a semiautomatic gun, they
    are ejected. Another officer testified that he did not locate any shell casings when they
    searched the room where the shooting occurred.
    3     The record does not contain Star’s true name. Therefore, we refer to her by her
    nickname.
    4.
    Taylor, Morris, Hartfield, and defendant were all charged in connection with
    Lacey’s shooting. However, at the preliminary hearing, the trial court dismissed all
    charges against Taylor at the prosecution’s request. Morris and Hartfield entered plea
    agreements in exchange for their truthful testimony at defendant’s trial.
    Hartfield testified he saw defendant shoot Lacey twice with a black revolver.
    Morris testified he heard two gunshots but did not see the gun. He said defendant was the
    shooter. On the day of the shooting, Taylor told officers that defendant walked into
    room 100 with a black revolver and that he was the shooter. She said no one else in the
    room had a gun. Additionally, Hinzo testified that defendant asked her to get rid of a
    black revolver on the day of the shooting. She explained where she hid it and the
    circumstances leading to its recovery.
    Evidence of Defendant’s Prior Statements at the Pre-preliminary Hearing
    The prosecution introduced evidence that defendant had made prior incriminating
    statements. Deputy District Attorney Christine Antonios testified that she was assigned
    to defendant’s case in September 2016, while Hartfield, Morris, and Taylor were still
    codefendants. On September 9, 2016, Antonios appeared at a pre-preliminary hearing
    where defendant was temporarily being represented by codefendant Taylor’s counsel,
    Dana Kinnison, because defendant’s counsel was not available. At this hearing,
    defendant made two statements before the court. First, he said his codefendants were
    innocent, and later, he admitted he was the shooter.
    Hartfield also testified he heard defendant make the incriminating statements at
    the pre-preliminary hearing.
    Defense Evidence
    The sole witness for the defense was Taylor’s counsel, Kinnison. He described
    the events of the pre-preliminary hearing in which he stood in to represent defendant, and
    defendant made the incriminating statements.
    5.
    DISCUSSION
    I.     Conflict-free Counsel
    Defendant contends his right to conflict-free counsel was violated because
    codefendant Taylor’s counsel, Kinnison, stood in for his counsel, Mark Raimondo, at the
    pre-preliminary hearing where defendant made two self-incriminating statements. He
    asserts that due to the conflict of interest caused by the joint representation, Kinnison
    made no attempt to prevent him from speaking at the pre-preliminary hearing, which
    resulted in defendant incriminating himself. We conclude, however, that even if
    Kinnison suffered from an actual conflict of interest, defendant was not prejudiced.
    A.     Background
    1.     Pre-preliminary Hearing
    On September 9, 2016, defendant and his codefendants, Taylor, Morris, and
    Hartfield, appeared at a pre-preliminary hearing. According to Deputy District Attorney
    Antonios, the purpose of the hearing was to set new pre-preliminary and preliminary
    hearing dates. Defendant’s counsel, Raimondo, appeared and had a brief discussion with
    the attorneys about new dates. Raimondo then asked Taylor’s counsel, Kinnison, to stand
    in for him because he had to be in a different courtroom. The following exchange
    occurred at the hearing:
    “THE COURT: And then [defendant]. Good morning. [¶]
    [Defendant], for [the] purpose of today’s hearing it’s okay that
    Mr. Kinnison stands in for your attorney, Mr. Raimondo?
    “DEFENDANT []: Yes, sir. [¶] May I address the court?
    “THE COURT: Maybe.
    “DEFENDANT []: On one issue.
    “THE COURT: Go ahead.
    “DEFENDANT []: On behalf of Mr. Morris and Ms. Taylor and
    Mr. Hartfield, they are innocent, sir.
    6.
    “THE COURT: Okay. Thank you.”
    The court then ruled on a motion to consolidate the cases, set new dates, and asked
    the defendants if they would waive time. Neither defendant, nor any codefendant, agreed
    to waive time. At the conclusion of the hearing, defendant stated, “I’m trying to take full
    responsibility for the case. I’m the shooter.”
    2.     Motions in Limine
    On April 27, 2017, defendant moved to exclude all statements he made during the
    pre-preliminary hearing. After defendant learned that the prosecution wanted to
    introduce his pre-preliminary hearing statements, he filed another motion in limine to
    request that the court conduct an Evidence Code section 402 hearing to obtain a factual
    account of the pre-preliminary hearing. In addressing defendant’s request, the following
    exchange occurred:
    “MR. RAIMONDO: Sure. As the transcript represents, on
    September the 9th,[ 2016,] I appeared on September the 9th, had a brief
    discussion about dates with other attorneys, and then I went on to another
    courtroom, leaving [defendant] to be represented for the brief continuance
    with Mr. Kinnison. And then the transcript speaks for itself .…
    “But off the record, and on the record, I don’t believe [defendant]
    was adequately represented at that time at that critical juncture that led him
    to make those statements while he was—during the prepreliminary hearing.
    “I don’t really know because I was not there. I’d like to find some
    information out of why I wasn’t notified, why he wasn’t given any
    warnings from either the Court or the attorney that was standing in. After
    he made the first statement. The first statement enough should have
    indicated to everybody that he wants to talk here.
    “And so for me to adequately and properly prepare my opposition to
    [the prosecutor’s] motion to include this statement, I need to know exactly
    what happened and I don’t have that on the record.
    “THE COURT: [Prosecutor]?
    7.
    “[PROSECUTOR]: Your Honor, we, I assume, are not arguing the
    merits at this point. We are just talking about the [Evidence Code
    section] 402[ hearing].
    “THE COURT: Correct.
    “[PROSECUTOR]: I’m not sure what the [Evidence Code
    section] 402 [hearing] is going to solve. What happened that day on the
    record is a common practice here in Kern County to have a multiple-
    defendant case where one of the attorneys has to be in another courtroom
    and one of the co-defendant’s attorneys stands in for other people. In this
    case, they were just picking dates. All the defendants objected to
    continuing the prelim[inary hearing], everyone made that clear, and they
    [were] picking dates, and I just don’t see anything on the transcript that
    indicates something unusual that we don’t all know about. And it just looks
    like a standard prepreliminary on a codefendant case.
    “I don’t understand what exactly Mr. Kinnison or [the judge] or
    madam reporter would say that would offer any new information or shed
    any light on circumstances. And I’m not trying to prevent Mr. Raimondo
    from getting a full understanding of the facts for him to argue his motion. I
    just don’t see how calling these people into Court is going to change
    anything. I think it is something that we can argue on the merits this
    morning before the panel comes over. [¶] … [¶]
    “THE COURT: Well, I guess my question, Mr. Raimondo, is this:
    Do you feel that Mr. Kinnison’s inability to keep [defendant] from making
    spontaneous statement[s] [was] somehow [ineffective assistance of
    counsel?]
    “MR. RAIMONDO: I think the record being blank of any attempt
    from stopping it from happening was a conflict of interest when it occurred
    because he represents a codefendant. The rumors were going around before
    it was actually said on the record. That is my understanding of what was
    going on there. There [were] different things that [were] being said. And
    so I think he was conveniently silent.
    “I think the [Evidence Code section] 352 issues with respect to this
    in front of the jury is really the crux of the problem. I think I have to
    explain to them the prepreliminary process what goes on there, how they
    are forced to sit next to other codefendants, the pressure that was being
    placed on [defendant], the fact that his attorney wasn’t there—I was his
    attorney—may create a conflict for me for maybe not advising him
    correctly before I left. There is a lot of issues that the purpose of the
    8.
    prelim[inary] hearing holds to negotiate your case, maybe reach a
    resolution. What is said down there generally stays down there. That has
    been the policy over the 16 years. I’ve never seen anything used against
    somebody during the course of negotiations good or bad. I would like to
    [get] a clear account of the facts, whether it is my deposition between [the
    prosecutor] and myself and probably recover everything I get from the
    [judge] through a stipulation, and I want to have some record that I wasn’t
    just absent that day. I was there in the morning; we had an agreement, and
    then I left. And I was available. So—and also I want to question
    Mr. Kinnison on the apparent conflict and that may all come in during trial.
    “THE COURT: Well, Mr. Raimondo, I certainly don’t see any
    ineffective assistance by you because you were not there. I don’t see how
    that could possibly be an issue under Strickland[ v. Washington (1984)
    
    466 U.S. 668
    ].
    “MR. RAIMONDO: I agree.
    “THE COURT: The fact that Mr. Kinnison stood in for you and was
    doing—essentially just picking dates. My review of the transcript is that
    the defendant … agreed to have Mr. Kinnison stand in for you. And then
    [defendant] said can I address the Court. [The judge] then said maybe, and
    [defendant] said on one issue, and [the judge] said go ahead.
    “And essentially [defendant] said the codefendants are innocent.
    [The judge] says Okay. Thank you. He then goes ahead with the rest of the
    hearing.
    “[Defendant], he didn’t say at that time he accepted responsibility
    for the crime, only that the codefendants didn’t have anything to do with it.
    So there is no prejudice to him at that point as to [defendant].
    “They continue going along and [defendant] refuses to waive time,
    so he’s alert, he’s awake, he understands what is going on. He doesn’t
    want to waive time. He’s agreed to have Kinnison there. The Court gives
    new dates, vacates the other dates and essentially ends the hearing and says
    thank you to the parties.
    “Defendant then[,] … unsolicited by any question put to him by a
    bench officer or an attorney[,] says he’s the shooter and wants to take
    responsibility for the case.
    “I’m not sure what Mr. Kinnison could have done to stop the
    defendant from making statements in open court and nor what the Judge
    9.
    could have done for that matter. [Defendant] implicates himself,
    spontaneously at the conclusion of the hearing. Mr. Raimondo [has] given
    no authority to the defendant spontaneously making unsolicited statements
    in open court that implicate him somehow arises to the level of [ineffective
    assistance of counsel]. I’m going to deny your request.
    “MR. RAIMONDO: Thank you.” (Italics added.)
    3.     Prosecution Trial Testimony
    At trial, Deputy District Attorney Antonios testified that typically, the pre-
    preliminary hearing is the first opportunity that the attorneys have to negotiate a case.
    Either the negotiations resolve the case, or the case gets continued. However, in
    defendant’s case, the purpose of the pre-preliminary hearing on September 9, 2016, was
    to set new dates. She explained, “One of the attorneys needed a continuance on that date;
    so we decided on new dates.” When they went into court to set the new dates on the
    record, she saw defendant and heard him make two statements in open court. She
    explained this in the following testimony:
    “[PROSECUTOR:] When you were out setting dates on the record,
    did you hear anything that [defendant] said?
    “[ANTONIOS:] Yes. Initially we were setting the continuance,
    setting the new dates, and initially at some point [defendant] interrupted the
    judge a little bit, asked if he could say something. I remember the judge
    being a little hesitant, but he let him talk.
    “[Defendant] initially said, ‘They are innocent.’ He was referring to
    his co-defendants at the time. He—[¶] … [¶]
    “[PROSECUTOR:] What, specifically, did [defendant] say?
    “[ANTONIOS:] He did say they are innocent, but he also named
    who they are. He said Mr. Morris, Mr. Hartfield, and Miss Taylor.
    “[PROSECUTOR:] At the conclusion of putting the dates on the
    record, did you hear [defendant] say anything else?
    “[ANTONIOS:] Yes. So that was his first—the first time he sort of
    interrupted the judge and spoke on the record. Then after one of the
    defense attorneys made a record, we finished picking new dates, then sort
    10.
    of at the end of that proceeding, [defendant] again spoke up, and he said he
    was just trying to take responsibility and he was the shooter.”
    On cross-examination, Antonios testified that defendant’s counsel was not present
    to represent defendant at the pre-preliminary hearing and that codefendant Taylor’s
    counsel, Kinnison, was standing in for him. Antonios said she had previously heard
    judges tell defendants to speak to their lawyer when the defendant wanted to speak in
    court. In this case, however, the judge did not tell defendant to speak to his lawyer.
    Antonios could not say whether Kinnison did anything to stop defendant from speaking,
    but she did not hear anything. She said, “I didn’t see if [Kinnison] tried to quiet
    [defendant] or anything, but I didn’t hear anything that [Kinnison] said.”
    Hartfield testified he heard defendant say at the hearing, “These people are
    innocent and they didn’t have nothing to do with it. I’m the shooter. I’m the one you
    want.”
    4.     Defense Trial Testimony
    Kinnison, the sole defense witness, testified that it was “very common” for
    attorneys to stand in for one another in “straightforward” matters. He further testified as
    follows:
    “[RAIMONDO:] … [¶] And had you seen the situations where
    defendants want to start talking to the judge?
    “[KINNISON:] Yes…. [¶] … [¶]
    “[RAIMONDO:] Okay. So tell us the normal practice that you
    observed.
    “[KINNISON:] Well, it would not be unusual for a defendant to
    want to say something about their case, and typically an attorney doesn’t
    want that to happen ….
    “[RAIMONDO:] Now, in this particular matter, I know you haven’t
    reviewed the transcript, but what’s your memory what went on there that
    morning after I had left to be upstairs?
    11.
    “[KINNISON:] Yeah. [Defendant] wanted to talk to judge, and
    judge allowed it, and then it was a pretty quick statement, as I recall, and
    judge didn’t shut it down like he normally would, which, obviously, took
    me by surprise.
    “[RAIMONDO:] Now, you’ve got Miss Taylor, she’s a female, and
    then [defendant], obviously a male. Are they—do they sit like our jury,
    boy, girl, boy, girl, or they keep them separate?
    “[KINNISON:] Well, my client [Taylor] was out of custody.
    [¶] … [¶]
    “[RAIMONDO:] But on that day, when you were with her, were
    you also—was it hard to be with both at the same time?
    “[KINNISON:] Right.
    “[RAIMONDO:] And did you make any attempt to stop
    [defendant]?
    “[KINNISON:] Well, in retrospect, I should have, but like you say,
    my recollection, it was a pretty quick statement, and then what was said
    was said.”
    B.     The Law
    Under the Sixth Amendment to the United States Constitution and article I,
    section 15 to the California Constitution, a criminal defendant has the right to effective
    assistance of counsel. (People v. Doolin (2009) 
    45 Cal.4th 390
    , 417 (Doolin).) Effective
    assistance of counsel “includes the correlative right to representation free from any
    conflict of interest that undermines counsel’s loyalty to his or her client.” (Ibid.) Both
    state and federal conflict of interest claims are analyzed under the federal standard
    articulated in Strickland v. Washington (1984) 
    466 U.S. 668
    , which “generally require[s]
    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.” (Doolin, at p. 417.)
    “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
    12.
    interest ‘that affected counsel’s performance—as opposed to a mere theoretical division
    of loyalties.’ ” (Doolin, supra, 45 Cal.4th at p. 417.) Determining whether counsel’s
    performance was adversely affected “ ‘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.’ ” (Id. at p. 418.)
    As to the second prong, “the high court has recognized a presumption of prejudice
    applies when defense counsel ‘actively represented conflicting interests.’ ” (Doolin,
    
    supra,
     45 Cal.4th at p. 418.) Such “conflicts may arise in circumstances in which one
    attorney represents more than one defendant in the same proceeding.” (People v. Bonin
    (1989) 
    47 Cal.3d 808
    , 835.) However, reversal is automatic in those cases only “where
    defense counsel is forced to represent codefendants over his timely objection, unless the
    trial court has determined that there is no conflict.” (Mickens v. Taylor (2002) 
    535 U.S. 162
    , 168.) Otherwise, reversal is required only upon a showing that a conflict of interest
    adversely affected counsel’s performance. (Doolin, at p. 418.)
    Moreover, the right to conflict-free counsel may be waived. (People v. Bonin,
    supra, 47 Cal.3d at p. 837.) “To be valid, however, ‘waivers of constitutional rights
    must, of course, be “knowing, intelligent acts done with sufficient awareness of the
    relevant circumstances and likely consequences[,]” … [and] must be unambiguous and
    “without strings.” ’ ” (Ibid.) “Before [the trial court] accepts a waiver offered by a
    defendant, the trial court need not undertake any ‘particular form of inquiry …, but, at a
    minimum, … must assure itself … (1) [that] the defendant has discussed the potential
    13.
    drawbacks of [potentially conflicted] representation with his attorney, or if he wishes,
    outside counsel, (2) that he has been made aware of the dangers and possible
    consequences of [such] representation in his case, (3) that he knows of his right to
    conflict-free representation, and (4) that he voluntarily wishes to waive that right.’ ”
    (Ibid.) The court may not rely on counsel to assure that each of the joint clients has made
    an effective waiver, but must make the determination itself. (People v. Mroczko (1983)
    
    35 Cal.3d 86
    , 112, disapproved on other grounds in Doolin, 
    supra,
     45 Cal.4th at p. 421 &
    fn. 22.)
    C.     Analysis
    In this case, it does not appear that Kinnison had an actual conflict of interest
    because Taylor and defendant did not have adverse interests for the purpose of this
    particular pre-preliminary hearing. According to Deputy District Attorney Antonios, the
    purpose of this hearing was merely to set new pre-preliminary and preliminary hearing
    dates. Thus, Taylor and defendant had identical positions at the hearing—neither wanted
    to waive time. But even if an actual conflict of interest did exist, defendant has not
    shown that Kinnison performed deficiently.
    As noted above, in assessing Kinnison’s performance, we must consider “whether
    [he] failed to represent defendant as vigorously as he might have, had there been no
    conflict.” (Doolin, 
    supra,
     45 Cal.4th at p. 418.) As to the defendant’s first statement, the
    record shows that defendant asked the judge if he could address the court and the judge
    allowed him to speak. As to defendant’s second statement, the record reflects defendant
    made the statement spontaneously at the end of the hearing. Although Kinnison agreed
    he should have advised defendant, after his first statement, not to speak any further,
    Kinnison’s failure to prevent defendant’s unsolicited and spontaneous statement does not
    amount to deficient performance—“[j]ust as there is no expectation that competent
    counsel will be a flawless strategist or tactician, an attorney may not be faulted for a
    14.
    reasonable miscalculation or lack of foresight or for failing to prepare for what appear to
    be remote possibilities.” (Harrington v. Richter (2011) 
    562 U.S. 86
    , 110.)
    In terms of prejudice, a presumption of prejudice is not applicable to the conflict
    asserted here because Kinnison was not forced to represent both Taylor and defendant
    over Kinnison’s timely objection. (See Mickens v. Taylor, 
    supra,
     535 U.S. at p. 168
    [reversal is automatic only in cases “where defense counsel is forced to represent
    codefendants over his timely objection, unless the trial court has determined that there is
    no conflict”].) Most significantly, even if an actual conflict of interest did exist and
    Kinnison did perform deficiently, defendant was not prejudiced by the admission of his
    pre-preliminary hearing statements because, even without those statements, there was
    overwhelming evidence of his guilt. Hartfield testified that he saw defendant shoot
    Lacey twice with a black revolver. Taylor told police on the day of the shooting that
    defendant was the shooter. Although she did not see the shooting occur because she put
    her head down, she said defendant was the only person in the room with a gun.
    According to Taylor, defendant walked in with a black revolver in his hand and when the
    shooting occurred, she heard two shots. Morris also testified he heard two gunshots and
    defendant was the shooter. Additionally, Hinzo testified that after the shooting,
    defendant asked her to get rid of a black revolver. She later led a police officer to the
    location of the gun, where a black revolver containing two spent rounds was recovered.
    Thus, there is no reasonable probability that the result of the proceedings would have
    been different even if Kinnison had made an attempt to prevent defendant from speaking
    at the pre-preliminary hearing.
    Alternatively, defendant argues he was prejudiced because the court denied his
    request for an Evidence Code section 402 hearing. For the same reason—overwhelming
    evidence of defendant’s guilt—we conclude defendant was not prejudiced by the court’s
    denial of an Evidence Code section 402 hearing.
    15.
    II.    Evidence Code Section 352
    Defendant next contends the trial court abused its discretion by admitting his pre-
    preliminary hearing statements pursuant to Evidence Code section 352. We disagree.
    A court has discretion 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.” (Evid. Code, § 352.) “The prejudice which exclusion of evidence
    under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a
    defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence
    which tends to prove guilt is prejudicial or damaging to the defendant’s case. The
    stronger the evidence, the more it is “prejudicial.” 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 [Evidence Code] section 352, “prejudicial” is not synonymous
    with “damaging.” ’ ” (People v. Karis (1988) 
    46 Cal.3d 612
    , 638.)
    A trial court’s ruling under Evidence Code section 352 is reviewed for abuse of
    discretion and will “ ‘not be disturbed on appeal except on a showing that the court
    exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
    in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 
    8 Cal.4th 1060
    ,
    1124.) Moreover, improper admission of evidence under Evidence Code section 352 is
    harmless where there is overwhelming evidence of a defendant’s guilt. (People v.
    Doolin, 
    supra,
     45 Cal.4th at p. 439.)
    Thus, even if we assume evidentiary error, we conclude any error was harmless in
    light of the overwhelming evidence of defendant’s guilt apart from his pre-preliminary
    hearing statements.
    16.
    III.   Senate Bill No. 620
    Defendant further contends his case should be remanded to allow the trial court to
    exercise its newly granted discretion to strike his firearm enhancements. The People
    concede, and we agree.
    Senate Bill No. 620 (2017–2018 Reg. Sess.) amended section 12022.53 to provide
    the trial court with discretion to strike or dismiss a firearm enhancement in the interest of
    justice. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1,
    2018.) The new law applies retroactively to parties, like defendant, whose judgements
    were not yet final on the statute’s operative date. (See People v. Johnson (2019)
    
    32 Cal.App.5th 938
    , 942 [“ ‘ “[F]or 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” ’ ”].) “ ‘A court
    which is unaware of the scope of its discretionary powers can no more exercise that
    “informed discretion” than one whose sentence is or may have been based on
    misinformation regarding a material aspect of a defendant’s record.’ [Citation.] In such
    circumstances, … the appropriate remedy is to remand for resentencing unless the record
    ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it
    had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 
    58 Cal.4th 1354
    , 1391.)
    The record before us reflects that the trial court did not know it had discretion to
    strike defendant’s firearm enhancements, and there is no clear indication the court would
    not have struck the enhancements if it had discretion to do so. At sentencing, the trial
    court noted that it had “very little discretion” with regard to the sentence that it could
    impose for the firearm enhancements once the jury found the enhancements true. It
    further noted, “Even if I gave him low term on the other counts, he’s still looking at a life
    crime. [¶] It’s, unfortunately, the way that the law is written. Not a whole lot I can do
    17.
    about that now.” Accordingly, the trial court should be provided the opportunity to
    exercise its discretion to strike the firearm enhancements on remand.
    IV.    Senate Bill No. 136
    By way of supplemental briefing, defendant also contends his prior prison term
    enhancements must be stricken in light of Senate Bill No. 136. Again, the People
    concede, and we agree.
    Senate Bill No. 136 (2019−2020 Reg. Sess.) amended section 667.5,
    subdivision (b) to limit prior prison term enhancements to only prior terms that were
    served for a sexually violent offense as defined by Welfare and Institutions Code
    section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590,
    § 1, eff. Jan. 1, 2020.) Defendant’s four prior prison terms were not served for sexually
    violent offenses, and thus they must be stricken.
    DISPOSITION
    The matter is remanded to the trial court to allow the court to exercise its
    discretion whether to strike or impose defendant’s two firearm enhancements pursuant to
    section 12022.53, subdivision (h). The court is instructed to strike the four prior prison
    term enhancements pursuant to section 667.5, subdivision (b). The court is directed to
    prepare an amended abstract of judgment and forward it to the appropriate entities. In all
    other respects, the judgment is affirmed.
    HILL, P.J.
    WE CONCUR:
    FRANSON, J.
    PEÑA, J.
    18.
    

Document Info

Docket Number: F075926

Filed Date: 6/28/2021

Precedential Status: Non-Precedential

Modified Date: 6/28/2021