Filed 3/21/18 P. v. Bynum CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ABDUL RASHAD BYNUM,

Defendant and Appellant.


G054823

(Super. Ct. No. 16WF0127)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed in part, reversed in part and remanded.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Abdul Rashad (“Donovan”) Bynum shot a gun through a closed door into a bedroom. Five people were inside the room; one of them was injured. Defendant made statements to the police after his arrest and during a booking process in an unrelated case.
A jury found defendant guilty of crimes including four counts of assault with a semiautomatic firearm and one count of child abuse likely to cause great bodily injury. The jury also found true several sentencing enhancements, including five allegations that defendant personally used a firearm. (Pen. Code, § 12022.5, subd. (a).) The trial court imposed a 42-year sentence. At the time of sentencing, the court did not have the discretion to strike a section 12022.5, subdivision (a) firearm allegation.
We find no reversible errors concerning defendant’s Miranda rights. We affirm his convictions. However, we reverse defendant’s sentence. A recent statutory change allows a court to strike a section 12022.5, subdivision (a), firearm allegation in the interest of justice. (§§ 12022.5, former subd. (c), as amended by Stats. 2017, ch. 682, § 1, eff. Jan. 1, 2018, 1385.) We find the statutory change to be retroactive and remand defendant’s matter for resentencing.
I
FACTS AND PROCEDURAL BACKGROUND
On January 18, 2016, defendant and Tanya M. were arguing at their home. Tanya punched defendant in the face and he “got mad.” According to Tanya: “The way he was acting, it seemed like he was on drugs.”
Tanya went inside a bedroom and slammed the door shut. In the bedroom were three of her sons (Oshane R., Oraine H., and six-year-old Dontay), and Oraine’s girlfriend Crystal V. There was a loud noise, followed by Tanya falling to the floor. Tanya realized she been shot and “just dropped.” She suffered two fractures in her lower leg. Oshane saw a hole in the door and tried to chase down defendant with a fireplace poker. Defendant jumped into a car and drove off. Oshane telephoned 9-1-1 and said that his mother had been shot in the right foot by his stepdad. The operator asked whether the shooting was an accident or on purpose. Oshane responded: “No, on purpose, man, it was on purpose.”
Later that evening, police found defendant crawling in some bushes and arrested him. The police advised defendant of his rights under Miranda and he said that he understood them. The police asked defendant to “tell us what happened yesterday at the house over on Vermont.” He responded: “We have a—we have a little dispute and she and her kids then run out on me and all them started beat and mashing up the car, and I run out of the house. . . . I would never hurt my family.” At one point, defendant said, “I ain’t got no more rap,” and when he was asked, “What does that mean?” He responded: “I mean I ain’t got no more to say.” A police officer said, “Oh, okay,” but defendant kept on speaking, stating: “I can’t believe they do this to me, man. Oh, God. Oh, God. Oh, God.” An officer then proceeded with further questioning. When defendant was asked whether he shot a gun, he denied it.
At Tanya’s home, the police found a spent casing, a bullet in a bureau and pieces of bone fragment and flesh in the room. There was a small hole in the middle of the bedroom door. A police officer collected a bullet fragment from a nurse at the medical center where Tanya was treated. At a jury trial, an officer from the Westminster Police Department testified about the shell casing found at the scene: “That round is generally consistent with . . . a type of semiautomatic handgun.” A forensic scientist analyzed the cartridge casing, but there was not enough DNA for testing. No gun was ever found. Tanya told the police that she had seen defendant with a gun two times before the shooting. Tanya’s son, six-year-old Dontay, told the police that defendant left his gun on a coffee table on the day of the shooting while Dontay was playing in the room. However, at trial, Dontay testified that: “I’m not even sure my dad has a gun.”
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case, but advised the court no issues were found to argue on defendant’s behalf. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel posed two queries: “Was appellant denied the effective assistance of counsel when his attorney failed to object to the admission of statements obtained from appellant in violation of Miranda?” And “[d]oes the record contain substantial evidence that appellant willfully put [one of the victims] at risk of great bodily harm or death?”
Defendant handwrote his own supplemental brief and it is being quoted below as it appeared in the original. He stated there are three issues on appeal “expressing negligence in proper counsel. . . . [¶] I. Did counsel fail to provide adequate defense and proper questioning of victims due to theory provided by appellant? [¶] . . . Counsel neglected his obligation to appellant and adopted a separate theory. . . . [¶] II. Was there sufficient enough evidence that appellant did assault with a semiautomatic firearm (Crystal V.) [¶] During trial no one stated Crystal V. was present in actual room where victim Tanya M. was shot nor was Crystal V. present at any of the trial proceedings which make acquasation of Crystal presence lack foundation and no sufficient grounds to proceed with charges. During trial all witnesses testified Crystal’s presence was not there. [¶] III. Did witnesses statements hold merit or sufficiency? Where the credible witnesses? Why didn’t appellants counsel fight credibility of witnesses when it was expressed by appellant. [¶] Appellant expressed his concerns that witnesses were not credible due to extensive criminal background counsel failed to object witnesses validation and did not fight credibility after witnesses told different stories throughout trial.” (Sic.)
II
DISCUSSION
In this opinion, we address the following issues: A.) whether the trial court properly admitted defendant’s statements to the police under Miranda after a possible invocation; B.) whether the trial court properly admitted defendant’s statements during the booking process (on an unrelated charge); and C.) whether the recent statutory change to section 12022.5, subdivision (c), should be applied retroactively.

A. Continued Questioning Under Miranda
This court invited counsel to brief: “1. Whether defendant waived any error pursuant to Miranda v. Arizona (1966) 386 U.S. 738, by not objecting, at trial, to the introduction of his police interrogation? [¶] 2. Whether there was an unequivocal invocation of defendant’s right to remain silent when he said, ‘I ain’t got no more rap,’ immediately followed by, ‘I mean I ain’t got no more to say’? and [¶] 3. If so, whether any error for the police to continue questioning defendant was prejudicial?”
To protect the Fifth Amendment privilege against self-incrimination, a suspect undergoing a custodial interrogation must first be advised of his or her constitutional rights, which are colloquially referred to as “Miranda rights.” (See Miranda, supra, 384 U.S. at pp. 444, 478-479.) As long as the suspect knowingly and intelligently waives his or her Miranda rights, the suspect’s statements are generally admissible in court. (Id. at p. 479.) However, if, at any point in the interview, the suspect invokes his or her rights, questioning must cease. (Id. at pp. 444-445, 473-474; see Edwards v. Arizona (1981) 451 U.S. 477, 484-485.)
In order to invoke the Fifth Amendment privilege after it has been waived, the suspect “must unambiguously” assert his right to silence or counsel. (Davis v. United States (1994) 512 U.S. 452, 459.) Faced with an ambiguous or equivocal statements, law enforcement officers are not required to ask clarifying questions or to cease questioning altogether. (Id. at pp. 459–462.) The United States Supreme Court has held that while this approach may disadvantage suspects who may have difficulty expressing themselves, a rule requiring a clear invocation of rights from someone who has already received and waived them “avoid[s] difficulties of proof,” and generally promotes “effective law enforcement.” (Id. at pp. 458, 460-461.)
Here, when the prosecutor introduced defendant’s confession at trial, there was no objection by defendant’s counsel. We therefore conclude defendant forfeited any claim the police violated his rights under Miranda, supra, 384 U.S. 436. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21; Evid. Code, § 353, subd. (a).)
Nevertheless, both parties agree that police kept on questioning defendant after he said, “I mean I ain’t got no more to say.” But defendant does not argue that he said anything incriminating after the questioning continued. We have read the record and note that defendant continued to deny any involvement with the shooting. Therefore, we need not consider whether defendant did or did not invoke his right to remain silent. The statements he made thereafter were not prejudicial.
Further, we cannot conclude defense counsel was ineffective in not objecting to the admission of defendant’s interview with the police. (Strickland v. Washington (1984) 466 U.S. 668.) That is, even if there was error in admitting defendant’s statement to the police, or in counsel’s not objecting to the admission of the statements—and we do not find either to be the case—any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

B. Questions During Booking
In response to this court’s invitation to file supplemental briefing on the Miranda interrogation issue, defendant’s appellate counsel argued that questions asked by an investigator during defendant’s booking (in an unrelated arrest) exceeded questions about biographical information routinely asked of suspects at the time of booking. Counsel argues the trial court erred when it permitted the investigator to relate a conversation he had with defendant about his tattoo in which defendant admitted he was sometimes called “Donovan.” The defendant’s defense at trial was that there was some other person named Donovan who fired the semiautomatic handgun.

1. The Booking Questions
Defendant was booked into jail on an unrelated charge while defendant was out on bail. An investigator with the District Attorney’s office was present and saw a tattoo that said, “Don Don” on defendant’s left arm. At trial, the investigator said he questioned defendant about the tattoo and the prosecutor asked the officer: “What did he tell you about the tattoo?” Defense counsel objected, citing the Fifth Amendment, and the court heard from counsel outside the presence of the jury.
In chambers, the prosecutor told the court: “It was a name. It was his nickname growing up, and people called him Don[o]van. And Don Don is short for Don[o]van.” Defense counsel told the court defendant was arrested in the hallway at West Court. The prosecutor explained: “He was Mirandized. What happened was he had our case, and then L.A. ended up with two holds under two different names in L.A. County. [¶] . . . [¶] Two different spellings of Alex Karr. Then he was arrested on those warrants. And then, as part of the investigation, they were trying to determine who he is, so they ended up Mirandizing him and interviewing him as part of a [section] 529[ ] investigation because he’s got like 14, 16 different aliases, and they don’t know who he is, but he was Mirandized. [¶] But before Miranda they were just asking him questions. My investigator was about you know book stuff in his name and whatever.” The court overruled the objection.
In front of the jury, the investigator testified defendant first said the tattoo “was a name after his son, Dontay.” However, when the investigator pointed out it was an old tattoo and that Dontay was so young, defendant told him the tattoo Don Don was a nickname. After that, defendant said: “‘Well, it is a nickname for Don[o]van which is what the kids in Philadelphia called me.’”

2. The Relevance of Defendant’s Nickname
In a second interview with Tanya, police officers asked her “what happened out there the other night.” As she described what happened, she said, “I closed the door—closed the door on him and that’s what happened.” An officer asked, “And when you’re saying when ‘he,’ who are you referring to?” Tanya answered, “My ex.” The officer asked, “Your ex? What’s – what’s his first name?” Tonya answered, “Donovan.” The officer asked the last name, and Tanya said, “Whitlocks.” She then confirmed that Donovan Whitlocks is the father of Dontay, one of Tonya’s sons who was present at the shooting.
But Tanya changed her story at trial. She testified that since the day she met defendant, she called him Abdul, and that she never called him Donovan. Also at trial, Dontay said his dad’s name is Abdul Bynum. He said he never called his father Donovan.
During the 9-1-1 call Oshane made, shortly after Tanya was shot, he said his stepdad shot his mother. The 9-1-1 operator asked Oshane what his stepdad’s name was and he responded: “Yeah, it’s uh Don[o]van.” Shortly thereafter, the 9-1-1 operator again asked for the stepdad’s name and Oshane said: “Um his name . . . ***[ ] I don’t know, you have to talk to my *** she’s not feeling good right now.” In a later police interview, Oshane talked about his stepdad, but was not asked his stepdad’s name. At trial, Oshane testified he knows defendant as Abdul Bynum, and that he never referred to him as Donovan. When the prosecutor questioned Oshane at trial about why he said his stepdad’s name was Donovan on the 9-1-1 call, Oshane said he was “pretty shaken up.”
A detective testified at trial that he obtained a booking photograph of defendant and showed it to Oshane on the day of the shooting. Oshane referred to the man in the photograph as “Don[o]van.” Oshane further told the detective that the man in the photograph was the same person who brandished a gun and shot into the bedroom.
Another of Tanya’s sons, Oraine, identified defendant as Abdul Bynum at trial. He was asked: “And on January 18th, back at that time were you referring to him as ‘Don[o]van’?” Oraine responded: “No, sir.” But a police officer made a recording of a conversation with Oraine on the day of the shooting. In the transcript Oraine was asked: “What’s your stepdad’s name?” Oraine responded: “His name is Donovan.” Tanya’s niece also testified at trial she knew defendant by the name Donovan.

3. The Law Regarding Questions During the Booking Process
“The Self-Incrimination Clause of the Fifth Amendment provides that no ‘person . . . shall be compelled in any criminal case to be a witness against himself.’” (Pennsylvania v. Muniz (1990) 496 U.S. 582, 588-589.) In Muniz, police videotaped a suspected drunk driver. An officer asked the defendant eight questions: his name, address, height, weight, eye color, date of birth, current age, and the date of his sixth birthday. The United States Supreme Court found the defendant’s answers to the first seven questions were incriminating because of the defendant’s drunkenness, but were nonetheless admissible “because the questions fall within the ‘routine booking questions’ exception which exempts from Miranda’s coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services.’” (Muniz, at pp. 601-602.) The Court further stated: “In contrast, the sixth birthday question in this case required a testimonial response.” (Id. at p. 598.) The high court held that “[b]ecause Muniz was not advised of his Miranda rights until after the videotaped proceedings at the Booking Center were completed, any verbal statements that were both testimonial in nature and elicited during custodial interrogation should have been suppressed.” (Muniz, at p. 590.)
The California Supreme Court held in People v. Elizalde (2015) 61 Cal.4th 523, 541, that given a penal institution’s legitimate interests in reducing or preventing institutional violence, “it is permissible to ask arrestees questions about gang affiliation during the booking process.” However, where the officer should know the questions are reasonably likely to elicit an incriminating response, a defendant’s answers to gang questions posed during the jail booking process, absent Miranda warnings, are inadmissible in the prosecution’s case-in-chief. (Elizalde, at p. 541.) The officer’s subjective intent is immaterial; the inquiry instead turns on the nature of the charges the inmate is facing. (Id. at pp. 537–540.)

4. Analysis
Under the circumstances we find in this record, we need not analyze the merits of defendant’s argument concerning the investigator’s questions during the booking process. Even if defendant was not properly advised of his Miranda rights before he was questioned about his tattoo, there is so much evidence from other sources that defendant was known as Donovan, admission of the investigator’s testimony was harmless under Chapman v. California, supra, 386 U.S. at page 24.

C. Section 12022.5
This court invited supplemental briefing on the “effect, if any, of the amendment to . . . section 12022.5, subdivision (c), effective January 1, 2018, on this appeal.”
The version of section 12022.5, former subdivision (c), in effect at the time of defendant’s sentencing did not permit the trial court to exercise its discretion under subdivision (a) of section 1385 to strike or dismiss the firearm enhancement. Section 12022.5 has been amended, and subdivision (c) now reads: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”
In sentencing defendant, the trial court imposed a term of 10 years to be served consecutively to the sentence on count one for personal use of a firearm in the commission of the assault with a semiautomatic firearm against Tonya; 16 months for personal use of a firearm in connection with child abuse to be served consecutive to the sentence on count one; three years for personal use of a firearm in commission of assault with a semiautomatic firearm against Oraine to be served concurrent to the sentence on count one; three years for personal use of a firearm in commission of assault with a semiautomatic firearm against Oshane to be served concurrent to the sentence on count one; and three years for personal use of a firearm in the commission of assault with a semiautomatic firearm against Crystal to be served concurrent to the sentence on count one.
In People v. Francis (1969) 71 Cal.2d 66, 69-70, the defendant was charged with selling and giving away marijuana. The matter was tried to the court and submitted on the preliminary hearing transcript. (Id. at p. 70.) The court found the defendant guilty of possession of marijuana as a lesser included offense. (Ibid.) At the time of the defendant’s sentencing in Francis, possession of marijuana was punishable by a term of one to 10 years in prison. The court also had the authority to grant the defendant probation and require him to serve time in the county jail as a condition of probation. (Id. at pp. 75-76.) The trial court sentenced the defendant to state prison. (Id. at p. 70.) After his conviction, but prior to the conclusion of his appeal, the Legislature amended the Health and Safety Code, authorizing a trial court to reduce a conviction for possession of marijuana to a misdemeanor, punishable by a term in county jail. (Ibid.)
The courts held the amendment should be given retroactive effect pursuant to In re Estrada (1965) 63 Cal.2d 740. (People v. Francis, supra, 71 Cal.2d at pp. 75-77.) This case is similar to Francis, and we hold the amendment to section 12022.5, subdivision (c), should be given retroactive effect.
We acknowledge the Attorney General’s argument that the court’s denial of defendant’s Romero motion probably indicates it would likely not have stricken the gun enhancement, but we feel that discretion should be exercised rather than speculated about. Accordingly, we remand this matter to the trial court for resentencing in order for the court to exercise its discretion under the new law.
III
DISPOSITION
We have examined the record and found no other arguable issues and no error. (People v. Wende (1979) 25 Cal.3d 436.) The judgment of conviction is affirmed in part and reversed in part. The matter is remanded to the superior court for resentencing.

MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.