Filed 5/11/18 P. v. Witt CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

JONNYRAE MOUNTAIN WITT,

Defendant and Appellant.


C082924

(Super. Ct. No. CRF150000627)





A jury convicted defendant Jonnyrae Mountain Witt of second degree murder and intentional infliction of traumatic injury upon a cohabitant. The trial court sentenced him to 15 years to life for the murder, plus a consecutive 25 years to life for a firearm enhancement. The trial court imposed but stayed sentence on the other conviction and other firearm enhancements pursuant to Penal Code section 654.
Defendant now contends the trial court abused its discretion in admitting numerous prior uncharged acts pursuant to Evidence Code sections 1101 and 1109. Moreover, in supplemental briefing, the parties have addressed whether the recent enactment of Senate Bill No. 620 (Senate Bill 620) requires us to remand this matter to allow the trial court to consider exercising its discretion to dismiss the firearm enhancements.
Finding no abuse of discretion, we will affirm the judgment of conviction. However, we will remand the matter for the limited purpose of allowing the trial court to consider exercising its sentencing discretion to dismiss the firearm enhancements.
BACKGROUND
Defendant and the victim had dated off and on for two years, but in November 2015 he fatally shot her in the head with a rifle.
In the days immediately prior to the killing, defendant and the victim had been living with Gena, Michael, Wesley and Kenneth. A person named Justin also lived on the property.
Wesley owned a lever-action rifle. He kept it loaded on a gun rack in his room. The gun could not be fired without pulling the hammer back or using the lever to get a cartridge in the chamber. Shortly before the killing, Wesley and defendant had gone to the pond and Wesley had shown defendant how to use the gun.
One evening, the victim and defendant returned to the residence after midnight. Defendant appeared stressed out. Shortly after defendant and the victim returned to the house, Gena and Michael heard a bang. A few minutes later, defendant pounded on their door. Holding Wesley’s rifle, defendant was frantic and said he had accidentally shot the victim. He told Michael that the victim had grabbed the barrel of the rifle and they had struggled for it. Michael and Gena went back to Wesley’s room and saw the victim “sitting there with half of her head blown off.” Defendant mentioned wanting to bury the body, wondered where there was a good place to dig a hole, asked for help taking her outside, and talked about taking the victim’s body to a pond. Michael called 911, concealing the call from defendant. By the time law enforcement arrived, defendant had left the scene.
It was later determined that the victim had several blunt force trauma injuries to her head, neck, torso, and extremities. Some were made around the time of her death, and some appeared older. There were grab marks on her legs and arms, some bite marks on her arm and chest, and contusions on her neck and jaw consistent with strangulation or choking.
Evidence was also admitted at trial, pursuant to sections 1101 and 1109, regarding prior conflict and violence between defendant and the victim. A few weeks before she last saw the victim, the victim’s sister heard defendant and the victim arguing. The victim’s oldest son came inside screaming, “He’s going to kill my mom. He’s got a gun.” The victim’s sister opened the door and saw defendant standing with a gun in his hand. He claimed he was just taking the clip out of the gun, but the victim looked upset.
About a week or two later, the victim went to her grandmother’s house around 3:00 a.m. Defendant came to the door a few minutes later and insisted on speaking with the victim. After the grandmother let him in, he became belligerent, demanding the victim go with him despite her refusals. He said “she knew what he would do.” When the grandmother told him to leave and threatened to call the police, defendant pulled a gun out of his pocket. The victim warned the grandmother that defendant would hurt her. The grandmother called the police and the grandmother’s son pushed defendant out the door. The victim had previously shown the grandmother bruises on her body.
Roughly a week thereafter, the victim and her children were living with her sister. The victim said she had been getting threatening text messages from defendant. The texts included, “Well, whatever. If I catch you with someone, I’m going to shoot them in the dick”; “I honestly do miss you hella bad”; “Really I am in love with you still”; “Nor do I want you with anybody but me. So know if I catch onto who you’re running with, it’s going to be ugly.” Defendant subsequently arrived at the sister’s home, and the sister heard defendant yelling at the victim, “Don’t think I won’t do it, bitch.” After the sister then heard a gun fired three times, defendant drove away irate. The victim left with defendant the next day.
Gena heard defendant call the victim names like “bitch” and “whore.” Justin never saw defendant hit the victim, but he saw marks on her and believed she had been hit. He heard defendant threaten to hit her.
While in jail, defendant told his mother the bruises on the victim’s throat and arm were caused by a fight he had with the victim earlier on the day of the killing.
The jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a) -- count one) and intentional infliction of traumatic injury upon a cohabitant (Pen. Code, § 273.5, subd. (a) -- count two). It also found true allegations that he intentionally and personally used a firearm (Pen. Code, § 12022.53, subd. (b)), discharged a firearm (Pen. Code, § 12022.53, subd. (c)), discharged a firearm in a manner that caused great bodily injury or death (Pen. Code, § 12022.53, subd. (d)), and personally used a firearm (Pen. Code, § 12022.5, subd. (a)).
The trial court sentenced defendant as follows: 15 years to life in state prison on the second degree murder conviction, plus a consecutive 25 years to life for the personal discharge of a firearm causing death. The trial court imposed but stayed sentence on the other conviction and enhancements pursuant to Penal Code section 654.
DISCUSSION
Defendant contends the trial court abused its discretion in admitting the evidence of prior uncharged acts under sections 1101 and 1109. He argues the evidence was more prejudicial than probative because the prior acts were numerous, inflammatory, uncorroborated, and did not result in convictions.
A
The People filed a motion in limine, seeking to introduce defendant’s prior acts of domestic violence under section 1109 to show his propensity to commit assaultive acts toward the victim and under section 1101 to show motive, intent, and absence of mistake or accident. Defendant objected on the grounds he had never been convicted of any acts of domestic violence, the evidence was hearsay, the statements were not corroborated, and the acts were more prejudicial than probative. The trial court admitted the evidence, finding they were admissible to show propensity, absence of mistake or accident, and that the acts of violence were extremely probative. The trial court instructed the jury with CALCRIM No. 375, explaining that they could consider the evidence of defendant’s other acts of domestic violence in deciding whether his actions were the result of mistake or accident. The trial court also instructed the jury with CALCRIM No. 852, explaining that defendant’s acts of domestic violence could be considered to show defendant was inclined or disposed to commit domestic violence and also was likely to have committed the charged offenses.
B
In general, evidence of a person’s character or trait of character is generally inadmissible to prove that person’s conduct (§ 1101, subd. (a)); however, as an exception, it may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (§ 1101, subd. (b)). Another exception is when a defendant is accused of an offense involving domestic violence. In that instance, unless precluded under section 352, evidence that the defendant committed other uncharged acts of domestic violence is admissible to show the defendant has a propensity to commit acts of domestic violence. (§ 1109, subd. (a)(1); People v. Brown (2011) 192 Cal.App.4th 1222, 1232.) Under section 352, “[i]t is within a trial court’s discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.” (People v. Mendoza (2007) 42 Cal.4th 686, 699.) In this context, “ ‘ “[P]rejudice” . . . applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 320.) “ ‘ “[P]rejudicial” is not synonymous with “damaging.” ’ ” (Ibid.) “ ‘ “In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction.” ’ ” (People v. Howard (2010) 51 Cal.4th 15, 32.) “Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Here, the prior acts of domestic violence occurred within the weeks before the killing. While the potential prejudice of the prior acts was increased by the fact that they did not result in a criminal conviction, there was no risk the jury would confuse the threats, arguments and evidence of bruising with the killing. Moreover, the evidence related to the prior acts was relatively brief and no stronger or more inflammatory than the testimony concerning the charged offense. (See People v. Tran (2011) 51 Cal.4th 1040, 1047.) In fact, the evidence regarding the killing, with the victim’s head being “blown half off,” was significantly more inflammatory than the evidence of the conduct leading up to the killing. The probative value of the evidence was increased by the fact that the domestic violence was between defendant and the same victim (see People v. Zack (1986) 184 Cal.App.3d 409, 415), and the probative value substantially outweighed the prejudicial effect. Accordingly, the trial court did not abuse its discretion in admitting the evidence.
II
We granted defendant’s request to submit supplemental briefing on whether this
matter should be remanded to permit the trial court to consider exercising its discretion to dismiss firearm enhancements pursuant to Senate Bill 620.
The trial court imposed a mandatory consecutive 25 years-to-life prison term pursuant to Penal Code section 12022.53, subdivision (d). The trial court also imposed but stayed three additional firearm enhancements: a mandatory 20-year term pursuant to Penal Code section 12022.53, subdivision (c), a mandatory 10-year prison term pursuant to Penal Code section 12022.53, subdivision (b), and the upper term of 10 years pursuant to Penal Code section 12022.5, subdivision (a). At the time it sentenced defendant, the trial court was required to impose any firearm enhancements found true under those sections. (See Pen. Code, former §§ 12022.5, subd. (c) [“Notwithstanding [Penal Code] Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”]; 12022.53, subd. (h) [same], both statutes amended by Stats. 2017, ch. 682, §§ 1, 2.) But with the enactment of Senate Bill 620, which went into effect on January 1, 2018, sentencing courts now have discretion under Penal Code sections 12022.5, subdivision (c), and 12022.53, subdivision (h), to “strike or dismiss an enhancement otherwise required to be imposed by” those statutes if doing so would be “in the interest of justice pursuant to [Penal Code] Section 1385.” (Pen. Code, §§ 12022.5, subd. (c), 12022.53, subd. (h).)
Defendant argues Senate Bill 620 applies retroactively to his case. The
Attorney General agrees it applies, but contends remand is not appropriate as it is not reasonably probable the trial court would have exercised its discretion to strike the firearm enhancements.
“When the Legislature has amended a statute to reduce the punishment for a
particular criminal offense, we will assume, absent evidence to the contrary, that the
Legislature intended the amended statute to apply to all defendants whose judgments are
not yet final on the statute’s operative date. [Citation.] We [base] this conclusion on the
premise that ‘ “[a] legislative mitigation of the penalty for a particular crime represents a
legislative judgment that the lesser penalty or the different treatment is sufficient to meet
the legitimate ends of the criminal law.” ’ ” (People v. Brown (2012) 54 Cal.4th 314,
323, fn. omitted, italics omitted; see In re Estrada (1965) 63 Cal.2d 740, 745.) The rule
of retroactivity articulated in Estrada applies where the Legislature amends a statute
to give the trial court discretion to impose a lesser penalty. (People v. Francis (1969)
71 Cal.2d 66, 75-76.) Because Senate Bill 620 gives a trial court discretion to strike
or dismiss a firearm enhancement allegation or finding, discretion a trial court did not previously have, and nothing in Penal Code sections 12022.53 or 12022.5 indicates the Legislature intended the amended statutes to be prospective only, we conclude the amendments to Penal Code sections 12022.53 and 12022.5 apply retroactively. (In re Estrada, supra, 63 Cal.2d at p. 745; Francis, supra, 71 Cal.2d at pp. 75-76; see People v. Suarez (2017) 17 Cal.App.5th 1272,1288-1289 [even though the appellate court did not publish that portion of its opinion regarding Sen. Bill 620, it remanded the matter so that the trial court may exercise its discretion under Pen. Code, § 12022.53, subd. (h)], disapproved on other grounds as stated in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 311-315.)
Citing People v. Gutierrez (1996) 48 Cal.App.4th 1894, the Attorney General argues remand for resentencing is unnecessary because there is no likelihood the trial court would exercise its discretion to strike the firearm enhancements. Gutierrez held in a similar context that a remand for resentencing is not required when “the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.” (Id. at p. 1896.) The Attorney General notes the trial court imposed but stayed the upper term for intentional infliction of traumatic injury upon a cohabitant and for the Penal Code section 12022.5, subdivision (a) firearm enhancement. In addition, the trial court said the number and severity of defendant’s convictions and his violations of probation and parole indicate he constitutes a threat to society.
Nevertheless, as a general matter, “when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The general rule is remand, and in this case we will not depart from the general rule. We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We only conclude that, under the circumstances of this case, the trial court should have an opportunity to consider exercising its discretion in the first instance.
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for the limited purpose of allowing the trial court to consider whether to exercise its discretion to dismiss the firearm enhancements.



/S/
MAURO, J.



We concur:



/S/
HULL, Acting P. J.



/S/
HOCH, J.