Filed 12/22/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C078996
Plaintiff and Respondent, (Super. Ct. No. 14F05826)
v.
TOMMIE LEE KINDALL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County,
Geoffrey A. Goodman, Judge. Affirmed as modified.
William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna,
Angelo S. Edralin, Deputy Attorney General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Parts I and III.
1
A jury found defendant Tommie Lee Kindall guilty of felony battery causing
serious bodily injury, misdemeanor assault, and misdemeanor domestic violence. (Pen.
Code, §§ 240, 243, subds. (d) & (e)(1).)1 After the verdicts, but before a court trial on the
prior prison term enhancements (§ 667.5, subd. (b)), another trial court reduced three of
defendant‟s alleged prior convictions to misdemeanors under Proposition 47, the Safe
Neighborhoods and Schools Act (the Act).
The trial court presiding over defendant‟s case (Goodman, J.) subsequently found
after a court trial that defendant had served seven separate prior prison terms, three of
which were based on the three drug convictions (Health & Saf. Code, § 11350, subd. (a))
that had already been reduced. The court sentenced defendant to the upper term of four
years for the felony battery count, and enhanced the sentence by seven years for the seven
prior prison terms. The court ordered defendant to serve nine years in county jail,
followed by two years of supervised release. Defendant timely appealed.2
On appeal, defendant contends (1) his trial attorney was ineffective because he did
not object to prosecutorial misconduct in argument; (2) the three prior prison term
enhancements based on sentences for felonies previously reduced to misdemeanors
should have been stricken; and (3) the restitution fine is incorrectly set forth in the
abstract of judgment. The People agree with the latter point, and so do we.
As we explain in the published portion of our opinion, we also agree with
defendant‟s second point, because at the time of the three reduced priors‟ adjudication as
prior prison terms, the charges on which the prison terms were based had already been
1 Further undesignated statutory references are to the Penal Code.
2 Defendant‟s attorney requested a certificate of probable cause regarding the prison
priors, although defendant had not pleaded guilty or admitted them. Thus, there was no
basis for counsel‟s request. (Cf. § 1237.5; People v. Meals (1975) 49 Cal.App.3d 702,
708.) Accordingly, the trial court properly declined to act on it.
2
reduced to misdemeanors for all purposes. Simply put, these three prior convictions were
no longer previous felony convictions at the time the trial court adjudicated them as such
in order to find the prior prison term allegations true.
We shall modify the judgment and affirm, directing the trial court to amend and
correct abstract of judgment.3
FACTS AND PROCEDURE
We briefly summarize the evidence as agreed by the parties. On September 2,
2014, defendant and his cohabitant, both intoxicated, argued and he kicked her in the
back and then hit her with a hammer. She testified at trial that she had grabbed the
hammer and her injuries were accidentally self-inflicted, but she had made contrary
statements implicating defendant both to the police and to medical personnel, and there
was evidence defendant communicated to her while in custody to encourage her to testify
in his favor. The defense was based not only on the victim‟s in-court testimony, but also
the testimony of a witness who testified he saw the victim trip and fall, causing her to hit
herself with a hammer, testimony of a victim‟s advocate that the victim claimed she hurt
herself, and defendant‟s testimony denying he hurt her. Defendant conceded he had been
convicted of a misdemeanor when he had accidentally hit the victim in the past, claiming
he had been “railroaded” into admitting a crime although he had not done anything wrong
during that incident; he was impeached with two felony convictions.
The victim characterized the prior uncharged incident in August 2013 as
“[a]nother night of drunken anger and stupidity.” She denied defendant punched her in
the face several times, but admitted she had called 911, and identified photographs
3 The trial court erroneously stayed imposition of sentence on the misdemeanor counts,
instead of imposing and then staying execution of sentence on those counts, as required
by section 654. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1472.)
However, the parties raise no issue about this mistake, thus we do not address it further.
3
depicting her injuries at that time. She claimed she and defendant had been struggling
over a bicycle and its handlebars struck her. In the uncharged case, she had written a
letter recanting her claim that defendant hit her.
A victim advocate, with a master‟s degree in counseling and a bachelor‟s degree in
psychology, testified about a “cycle of violence” consisting of a building of tension in a
relationship, an act of violence, and a “honeymoon phase” where the parties reconcile,
and a “lot of times there is denial and minimizing” and people will “assume that it won‟t
happen again.”
DISCUSSION
I
Ineffective Assistance of Counsel
Acknowledging that his trial attorney failed to object to purported prosecutorial
misconduct during closing argument, defendant claims the misconduct claim is not
forfeited because his attorney was ineffective in failing to object.
“ „To preserve a claim of prosecutorial misconduct for appeal, a defendant must
make a timely and specific objection and ask the trial court to admonish the jury to
disregard the improper argument.‟ ” (People v. Linton (2013) 56 Cal.4th 1146, 1205.) A
court will excuse a defendant‟s failure to object only if an objection would have been
futile or if an admonition would not have cured the harm caused by the misconduct.
(People v. Hill (1998) 17 Cal.4th 800, 820.) Here, neither exception to the rule requiring
a timely objection to purported misconduct in argument applies.
To prevail in showing ineffectiveness of counsel, a defendant must show his
attorney acted below the standards of professional competence and that there is a
reasonable probability he would have obtained a more favorable result in the absence of
counsel‟s failings, that is, if counsel had objected and sought admonitions. (See People v.
Ledesma (1987) 43 Cal.3d 171, 217-218.) But an attorney need not make every arguable
objection and a trial attorney does not have the luxury of the appellate attorney to
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research each possible issue. (See generally People v. Eckstrom (1974) 43 Cal.App.3d
996, 1000-1003.) And where the record shows trial counsel‟s actions reflected
reasonable tactical choices, defendant‟s claims of ineffective counsel are not cognizable
on direct appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
During argument, the prosecutor began by explaining domestic abuse can be
complicated because a victim may continue to love the abuser and hope things will
change, and cited the victim herein as “a textbook example of the cycle of violence that
the victim advocate . . . talked about.” He continued by pointing out that in the prior
incident, after defendant punched the victim in the face, she recanted and claimed her
face was hit by a bicycle by accident, and argued she similarly recanted in the current
case. “The first time involved punches to the face. The second time is the hammer to the
eye. Who knows what happens the third and fourth and fifth time. [The victim] deserves
our legal protection whether she wants it or not.” (Italics added.) Later, when discussing
the instruction about the uncharged incident, the prosecutor stated: “So, in plain terms,
what that means is, he did it before, he’s likely to do it again. It‟s a pattern. It‟s about
dominance and control, and through these jail calls and through these emails you see that
dominance and control coming through loud and clear. I‟ll do whatever you want me to
do.” (Italics added.)
On appeal, defendant argues these last two passages, particularly the italicized
portions, are improper speculation about future violence, references to facts not in
evidence, and appealing to the jury‟s passion about community safety and what future
harm might befall the victim if defendant were not convicted by this jury. We disagree
that the comments were improper.
The first comment was accurately tethered to the facts of the case, showing two
recantations by the victim due to her continued love for an abusive companion, and
emphasized that the jury‟s duty was not to adhere to her wishes that defendant not be
5
punished, but to apply the law to the facts, thus, giving her “legal protection” even if she
was willing to continue being victimized.
The second comment accurately described the effect of the court‟s instruction on
the uncharged act evidence. The trial court gave the pattern instruction on the limited use
of the prior domestic violence conviction (CALCRIM No. 852), in part instructing that if
the jury found the prior domestic violence occurred, “you may, but are not required to,
conclude from that evidence that the defendant was disposed or inclined to commit
domestic violence; and, based on that decision, also conclude that the defendant was
likely to commit and did commit the charges in this case. [¶] If you conclude that the
defendant committed the uncharged domestic violence, that conclusion is only one factor
to consider along with the other evidence. It is not sufficient by itself to prove that the
defendant is guilty of the charges in this case. The People must still prove each element
of every charge beyond a reasonable doubt.” The court also gave an abbreviated
admonition about the evidence before it was presented to the jury, again emphasizing:
“You cannot convict the defendant of the current charges simply because he did some
similar thing before.”
The prosecutor‟s second set of challenged comments argued that the jury could
infer that defendant had a propensity to hit the victim and therefore did so on this
occasion. The argument was not that the jury should convict defendant to protect society
even if the jury did not find there was sufficient evidence to support the current charge.
Thus the comments were appropriate argument. Further, even if defendant‟s trial
counsel were inclined to object, counsel could well conclude that objections to either of
these passages would be futile, or even worse, might highlight weaknesses in the defense
case. Instead, in reply to the prosecutor‟s argument, defense counsel emphasized the
victim‟s drunkenness on both occasions, and her lack of credibility, arguing she made
false allegations in 2013 and in the present incident. Counsel argued that defendant was
the victim of the cycle of violence, based on testimony he had a disability and was
6
financially dependent on the victim. These tactics were effective, as the jury acquitted
defendant of more serious charged offenses of assault with a deadly weapon (the
hammer) and domestic violence with an allegation of infliction of great bodily injury.
(§§ 245, subd. (a)(1), 273.5, 12022.7, subd. (e).)
The record on appeal does not establish ineffectiveness of trial counsel.
II
Claim of Sentencing Error
Defendant contends that because the felony drug charges underlying three of his
prior prison terms had been redesignated as misdemeanors under Proposition 47 before
the priors were adjudicated, he should not have been subject to additional punishment for
those three prior prison terms. (§ 667.5, subd. (b).) He contends that Proposition 47 not
only entitled him to reduction of those convictions to misdemeanors, but also precluded
the use of the prison terms based thereon to enhance the sentence for his current felony.
On the specific timeline presented by this case, we agree. Although defendant‟s
current crime of felony battery was committed prior to the reduction of the felony
offenses used to enhance his sentence to misdemeanors, which the People argue is
sufficient to qualify him for the enhancement, by the time the enhancements at issue were
adjudicated, the offenses were misdemeanors for all purposes. The delay in the second
portion of the bifurcated trial until after the priors at issue were reduced resulted in the
absence of one of the essential elements of a prior prison term finding--that defendant
“was previously convicted of a felony.” (People v. Tenner (1993) 6 Cal.4th 559, 563.)
As we will explain, these three prior convictions were no longer previous felony
convictions at the time the trial court adjudicated them as such. Instead, they were
previous misdemeanor convictions, for all purposes going forward.
7
Proposition 47 in part provides that persons who have completed felony sentences
for certain offenses may apply to have their convictions “designated as misdemeanors.”
(§ 1170.18, subd. (f).) In such cases, the convictions “shall be considered a misdemeanor
for all purposes.” (§ 1170.18, subd. (k).) Defendant properly invoked this provision.
In People v. Rivera (2015) 233 Cal.App.4th 1085, the appellate court addressed
whether Proposition 47 deprived it of jurisdiction in a case where a felony conviction was
later designated a misdemeanor or where the defendant was resentenced as a
misdemeanant under the Act. (Id. at p. 1089.) Rivera found that section 1170.18,
subdivision (k), which parallels the language from section 17 regarding the reduction of
wobblers to misdemeanors, should be interpreted in the same way as being prospective.
(Rivera, at p. 1100.) Rivera accordingly concluded that the felony status of an offense
charged as a felony did not change after Proposition 47 was passed, thereby conferring
jurisdiction on the Court of Appeal. (Id., at pp. 1094-1095, 1099-1101.) Although
Rivera addressed section 1170.18, subdivision (k) in a different context than in this case,
its retroactivity analysis is sound: reduction of a felony to a misdemeanor does not apply
retroactively.
Here, however, because the very adjudication of the prior convictions was
delayed, the instant case was in a very different procedural posture. Here, at the time the
trial court was called upon (in the court trial on the priors) to find the elements of the
enhancement, it could no longer properly find that defendant had sustained the prior
felony convictions alleged. Instead, the three reduced felonies were misdemeanors for all
purposes. Simply put, at the time of the charged priors‟ adjudication, defendant had
sustained misdemeanor convictions for the three drug charges at issue rather than
felonies. There was no need to “look back” and read any retrospective effect into the
Proposition 47 reductions; there was only the need to acknowledge the reductions going
forward, as the statute requires through its “for all purposes” language.
8
Defendant relies in part on People v. Park (2013) 56 Cal.4th 782, in which our
Supreme Court held that a felony conviction reduced to a misdemeanor under section 17,
subdivision (b) could not subsequently be used to support a prior serious felony
enhancement under section 667, subdivision (a). (Park, at p. 798.) Section 17 contains
the same “misdemeanor for all purposes” language as section 1170.18, subdivision (k).
As the People point out, Park did not involve a felony reduced to a misdemeanor after
the present crime had been committed, and it distinguished that scenario in clear terms:
“There is no dispute that, under the rule in [prior California Supreme Court] cases, [the]
defendant would be subject to the section 667[, subdivision] (a) enhancement had he
committed and been convicted of the present crimes before the court reduced the earlier
offense to a misdemeanor.” (Park, at p. 802.) The People argue that because defendant
in this case committed his current felony before any of his prior convictions were reduced
to misdemeanors, applying the reductions to eliminate the corresponding prior prison
term enhancements would be an impermissible retroactive application of Proposition 47.
As we have explained, the procedural posture of this case is different than Park;
indeed, it is different than any of the cases to which the parties have called our attention.
However, we find Park instructive in the situation we find ourselves, because here, like
Park, three of defendant‟s prior convictions which were no longer previous felony
convictions were construed as felonies going forward merely because they were felonies
in the past. Park instructs that this “once a felony, always a felony” interpretation cannot
be reconciled with the “misdemeanor for all purposes” language. The dicta from Park
cited above does not govern the instant case, because it does not speak to the adjudication
of the priors, and the required findings regarding the convictions at issue at the time the
truth of the allegations is found, which is the question we must answer here. Similarly,
the case on which the People rely in their briefing to describe a “trigger date” for the
priors‟ application concerned an entirely different question than that at hand here.
9
People v. Weeks (2014) 224 Cal.App.4th 1045, concerned the definition of a “completed”
prison term for purposes of a section 667.5, subdivision (b) application, and did not
address the question of a prior‟s post-reduction adjudication. It provides no guidance
here.
Although we agree with the People that “[t]he purpose of the prior prison term
enhancement of section 667.5, subdivision (b), is „ “to punish individuals” who have
shown that they are “hardened criminal[s] who [are] undeterred by the fear of prison,” ‟ ”
(People v. Abdallah (2016) 246 Cal.App.4th 736, 742), we do not ignore the plain
language of the statute and its “for all purposes” requirement merely because the result of
its application may not square with the apparent purpose of the enhancement. Nor are we
permitted to ignore the Tenner requirement that the People prove a (previous) felony
conviction in order to prove a (current) prison prior. Once the felony priors at issue here
were reduced to misdemeanors, they had ceased to exist as felonies for all purposes
moving forward. Thus, when moving forward with the second half of the bifurcated trial,
after the felonies‟ reduction, the People had to prove under Tenner that defendant was
previously convicted of those felonies. But the now-reduced convictions at issue had
ceased to exist as felonies; in their place were previous misdemeanor convictions, for all
purposes. These purposes include the adjudication of charged enhancements.
Accordingly, we modify the judgment to strike the three prior prison terms
erroneously imposed.
III
Correction to Abstract
An abstract of judgment must fully and accurately capture all components of a
defendant‟s sentence. (See People v. Mitchell (2001) 26 Cal.4th 181, 185; People v.
Zackery (2007) 147 Cal.App.4th 380, 389.)
Here, the parties agree, and the record confirms, that there is a typographical error
in the abstract. It states that the trial court ordered a restitution fine (§ 1202.4, subd. (b))
10
of “$33300,” but on the record trial court ordered a fine of only $3,300. We will direct
the trial court to correct the abstract when it is amended to reflect the modification of
judgment.
DISPOSITION
The judgment is modified to strike the three prior prison terms previously imposed
as described by this opinion. As modified, the judgment is affirmed. The trial court is
directed to prepare an amended and corrected abstract of judgment and to forward a
certified copy thereof to the Sacramento County Sheriff‟s Department.
/s/
Duarte, J.
We concur:
/s/
Butz, Acting P. J.
/s/
Renner, J.
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