P. v. Jones

Filed 8/29/06 P. v. Jones CA1/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Leonard C. Jones appeals his convictions for second degree murder, assault with a deadly weapon, and making a criminal threat. He contends certain evidence was admitted pursuant to Evidence Code section 1109 without proper notice and in violation of his federal constitutional rights. He also argues his sentence on the assault was improperly enhanced for his personal use of a firearm. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1999, defendant lived in a two-bedroom apartment with his former wife Margiree Warren, their children ranging in age from 24 to 10 years old, a grandson and one of his daughter's boyfriends. The boyfriend of another daughter also stayed at the apartment from time to time. Defendant and Warren often argued, and about twice a week, he would become violent and punch, slap and grab her. Defendant drank a six-pack of beer a day, and sometimes drank brandy. He also owned a shotgun and threatened repeatedly to "blow [Warren] away." Defendant's oldest daughter, Nikeita, recalled an incident when she was 14 or 15 years old, when defendant angrily pointed his shotgun at her and her mother. His daughter Lynicha also remembered that defendant once pointed his shotgun at her, her mother and her sister.

On December 12, 1999, defendant left the apartment between 10:00 and 11:00 p.m., after he and Warren "had some words" and he took his shotgun with him. He went to his niece's house where he drank beer and played dominos until about 3:40 a.m. At about 4:00 a.m., Nikeita's boyfriend, Bertram Johnson, entered the family apartment and went to bed. He later woke Nikeita up when he heard defendant and Warren arguing in the kitchen. Warren raised her voice and said: "If you gonna kill me, you gonna kill me." Johnson and Nikeita heard a shot from the shotgun and Nikeita went to the kitchen, where she saw her mother lying on the floor.

Defendant pointed his shotgun at Nikeita and told her to go back to her room. Then he followed her, pointed the shotgun at Johnson and Nikeita, recalled a time when Johnson punched him, and threatened to kill Johnson. Johnson noticed defendant was sweating, and that he appeared to be intoxicated. Nikeita tried to calm defendant down by pointing out that Johnson had apologized for the earlier incident. Johnson was holding the defendant's grandson who was afraid. Defendant told Johnson he had two or three shots for him, and instructed him to put the child down. Nikeita thought defendant would shoot her too when he told her, "Nikeita, you go with that nigger."

Defendant then moved on to the living room, where he pointed the shotgun at Damien Ford who was sleeping with Lynicha, and said "You all messed up my household." Ford ran out the front door.

When defendant was away from the bedroom, Nikeita called 911, but defendant caught her doing it, made her hang up, and disabled the phones. Defendant walked back and forth, ranting. When defendant returned to the bedroom, Lynicha heard him say, "I just killed my wife. I don't care about anything anymore." Johnson fled the apartment, flagged down a police car and said: "My girlfriend's father just shot his wife, and I think he's about to kill everybody else in the house." Nikeita also left the house with her son and managed to call police.

At about 5:30 a.m., police officers were dispatched to the family apartment to conduct a well-check. They found Warren lying face down on the kitchen floor, and two of her daughters were standing behind her.^[1]

Defendant went to his niece's apartment, and told her that her aunt was dead. Defendant's niece told defendant that he had to leave. Her husband gave defendant a coat, and he left.

Police apprehended defendant that morning. That afternoon, an officer recovered gunshot residue from defendant's hands, and noticed that he appeared to be intoxicated. The shotgun was later recovered from a cupboard in the apartment of defendant's niece. A crime lab officer inspected the gun and determined it was functioning properly and the safety device was in working condition.

Defendant was charged with the murder of Warren, as well as assault with a deadly weapon and making criminal threats against Johnson, Nikeita, and Ford. Gun use enhancements were alleged as to each count. Defendant testified at trial and claimed the shooting was accidental. A forensic criminalist testified the shotgun was functioning properly, but the safety device indicator was obscured by oil and debris.

Defendant testified he and Warren had a violent relationship, but that he loved her. He disapproved of Nikeita and Lynicha's boyfriends because they had criminal records and sold drugs. Defendant wanted both Ford and Johnson out of the house, and thought they created a bad environment for his youngest daughter, Lyndetta.^[2]

Defendant admitted that he drank five to six beers each day. He owned a shotgun for 12 or 13 years, for protection, and knew how to use it. When he left his niece's home on the night of the shooting, he loaded three shells into the shotgun before walking home.

When defendant arrived home, Warren was in the kitchen getting ready for work, and asked him where he had been. Defendant pulled his shotgun out of his pants to unload it and put it away. He and Warren argued about their older daughters and their boyfriends staying at the apartment. Warren told him, "Well get out of my way. I got to get ready for work." She swung her left arm at defendant to get him out of the way. The shotgun fired and Warren fell. Defendant knew she was dead.

On cross-examination, defendant testified that he loaded and unloaded the shotgun many times, and might have pushed the safety slide up when arguing with Warren. He agreed that it would be unsafe and was not necessary to have his finger on the trigger to unload the gun. When he pointed the shotgun at Warren on previous occasions, it was not loaded. He told her many times he "would blow her away," with the intention of scaring her, and intentionally hit and hurt her in the past.

The jury found defendant guilty of second degree murder, assault with a firearm on Johnson, making a criminal threat against Johnson, and assault with a deadly weapon on Ford. The firearm allegations were found true. The jury found defendant not guilty of assault with a firearm on Nikeita, and not guilty of making criminal threats against Nikeita and Ford. Defendant was sentenced to 40 years to life in prison for the murder, and 13 years consecutive for the assault on Johnson, including firearm enhancements.^[3] He timely appealed.

DISCUSSION

Evidence of Prior Domestic Violence

The court allowed into evidence many prior acts of domestic violence by defendant. His daughters were allowed to testify about the defendant's "threats, slapping, punching, hitting" of their mother "two to three times a week" over several years. But there are two particular incidents of domestic violence that defendant claims should have been kept from the jury because he did not receive proper notice that the prosecution intended to offer them.

Nikeita testified that defendant pulled a knife on her boyfriend, Bertram Johnson, during an argument in October 1999, and Lynicha testified that defendant pushed her pregnant mother over a rocking chair.^[4] But the record indicates the defense was not unfairly surprised by this evidence, and the admission of these incidents was not prejudicial.

When the prosecution intends to offer evidence of a defendant's prior domestic violence, absent a showing of good cause, it must disclose that evidence to defendant at least 30 days before trial. (Evid. Code, § 1109, subd. (b); Pen. Code, § 1054.7.) Neither of the incidents defendant takes issue with in this appeal was disclosed in the prosecution's pretrial motion to admit other acts of domestic violence pursuant to Evidence Code section 1109.

Defendant admits he knew the substance of Nikeita's testimony about the altercation between defendant and Johnson because it was previously raised at the preliminary hearing, long before trial began.^[5] Moreover, this earlier incident was mentioned by defendant when he assaulted Johnson. Defendant yelled at Johnson before he threatened to kill him because Johnson had punched defendant in the mouth. No prejudice arose from any lack of formal notice regarding this incident.^[6]

Any failure of notice regarding Lynicha's brief testimony about the incident when defendant pushed her pregnant mother over a rocking chair was similarly harmless. The trial court admitted the testimony of both Nikeita and Lynicha that they saw defendant push, grab, and hit their mother two or three times a week, over a period of many years.^[7] Defendant himself testified that he pointed the shotgun at Warren before and told her many times that he "would blow her away." He also admitted battering her before. It was not prejudicial error for the jury to hear about one other incident when the defendant pushed the victim.^[8] (People v. Carpenter (1997) 15 Cal.4th 312, 386-387.)

Enhancement for Personal Use of a Firearm

Defendant argues the trial court improperly enhanced his sentence for assault due to his personal use of a firearm under Penal Code section 12022.5.^[9] He points to language in section 12022.5, subdivision (a) providing for an additional term of imprisonment for "any person who personally uses a firearm in the commission of a felony or attempted felony . . . unless use of a firearm is an element of that offense." Because defendant was convicted of assaulting Johnson with his shotgun, he contends the use of a firearm was an element of the assault and enhancement was improper.

But at the time these offenses were committed, section 12022.5, subdivision (d) further provided: "[T]he additional term provided by this section may be imposed in cases of assault with a firearm under paragraph (2) of subdivision (a) of Section 245 [of which defendant was convicted] . . . ." (See People v. Ledesma (1997) 16 Cal.4th 90, 92-93, 97 [imposition of enhancement is mandatory].) Defendant provides no authority to support his argument that the information was required to separately specify subdivision (d) in addition to subdivision (a) of section 12022.5.^[10] On a charge of assault with a deadly weapon, subdivision (d) is not a "discrete enhancement. "[S]ubdivision (d) creates an exception to the proviso in subdivision (a)."^[11] (Ledesma, supra, at p. 97.) Nor does subdivision (d) require a separate finding by the jury, which concluded beyond a reasonable doubt that defendant personally used a firearm in connection with the assault, as charged in the information. (Cf. People v. Najera (1972) 8 Cal.3d 504, 509-510 [section 12022.5 requires a jury determination of whether defendant used a firearm in the commission of the underlying offense].)

People v. Mancebo (2002) 27 Cal.4th 735, on which defendant relies, is distinguishable. In that case, "the narrow question presented [was] whether the circumstance of gun use was available to support two section 12022.5(a) enhancements when gun use had already been properly pled and proved as a basis for invoking One Strike sentencing." (Id. at p. 738.) The Supreme Court concluded the gun use circumstances could not be used both as enhancements and to support One Strike sentencing. (Id. at pp. 738-739, 751, 754.) But this case does not involve the One Strike law. The gun use allegation did not serve dual purposes and the trial court did not rely on unpled circumstances in imposing sentence. (See People v. Tardy (2003) 112 Cal.App.4th 783, 789 [distinguishing Mancebo when a defendant's sentence "was enhanced based on facts specifically pleaded and proved as enhancements"].) The information referred to section 12022.5, and correctly described the acts required to trigger the firearm enhancement.^[12]

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P.J.

_________________________

Pollak, J.

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^[1] Police later found shotgun pellets in the kitchen, and material that appeared to be shotgun filler on Warren's shirt, which had holes in the front and back. The autopsy determined Warren was shot once, at close range, and there were no signs of a struggle. Her injuries were consistent with her being shot by someone the defendant's size, holding the gun at waist level, as Nikeita described seeing defendant hold it.

^[2] Defendant testified Johnson and Nikeita shared a bedroom with defendant, Warren, Lyndetta, and Nikeita's son, Charles.

^[3] Sentence was stayed under Penal Code section 654 for both the criminal threat against Johnson and an additional enhancement on the murder count. A concurrent three-year term was imposed for the assault on Ford, along with a concurrent four-year firearm enhancement.

^[4] The incident with the rocking chair apparently took place before Lynicha's younger sister was born, in approximately 1989.

^[5] During the preliminary hearing, Nikeita testified during cross-examination that Johnson punched defendant after defendant pulled a knife on him.

^[6] The trial court overruled defense counsel's objection, noting the testimony was raised at the preliminary hearing. The court also pointed out that defense counsel had referred during his opening statement to the related incident when Johnson "coldcocked" defendant. The court concluded "the proper remedy might be a short continuance, if counsel feels he needs time to address the issue, or we can get [defendant] back in."

^[7] Defense counsel told the trial court he did not object during Lynicha's testimony because he did not want to draw further attention to her statement. The prosecutor agreed not to discuss the matter further or refer to it in closing arguments, describing it as "an omission." The court noted the issue of prior domestic violence had been litigated extensively in limine, and advised counsel to abide by its rulings in that regard. In evaluating that evidence under Evidence Code section 352, the court had also remarked that it "pale[d] in comparison to the evidence of a killing."

^[8] Defendant also contends the admission of prior domestic violence testimony violated his federal constitutional rights. He acknowledges that the California Supreme Court rejected such a challenge in People v. Falsetta (1999) 21 Cal.4th 903, but raises the issue here to preserve his right to federal review.

^[9] Subsequent statutory references are to the Penal Code.

^[10] While People v. Johnson (1996) 51 Cal.App.4th 1329, 1331 refers in passing to an allegation that specified both subdivisions (a) and (d) of section 12022.5, it did not hold that such a specification was required.

^[11] In fact, the Ledesma court explained: "When viewed from a historical perspective, it becomes clear subdivision (d) of section 12022.5 was written in relation to subdivision (a), rather than contradistinction. . . . [B]oth subdivisions (a) and (d) of section 12022.5 were initially part of a unitary statute the Legislature intended to be read as a whole, not as individual words in isolation." (People v. Ledesma, supra, 16 Cal.4th at p. 97.)

^[12] As defendant recognizes in his reply brief, his additional argument under Blakely v. Washington (2004) 542 U.S. 296 was rejected in People v. Black (2005) 35 Cal.4th 1238. Black is controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)