People v. Hodge CA2/8

P
Filed 7/7/21 P. v. Hodge CA2/8
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT

THE PEOPLE,                                                    B305189

      Plaintiff and Respondent,                                (Los Angeles County
                                                                Super. Ct. No. MA077232)
                   v.

DAMIEN HODGE,

      Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
Angeles County. Alan Z. Yudkowsky, Temporary Judge.
(Pursuant to Cal. Cons., art. VI, § 21.) Affirmed in part; reversed
in part and remanded with directions.
      Carolyn D. Phillips, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Paul M. Roadarmel and
Michael Katz, Deputy Attorneys General, for Plaintiff and
Respondent.
                         **********
       Defendant and appellant Damien Hodge appeals from his
conviction by jury of assaulting his girlfriend and attempting to
dissuade her from testifying against him. He was sentenced to
an eight-year prison term. He contends the court violated his
constitutional rights by failing to obtain a knowing and voluntary
waiver before he admitted a prior strike allegation, and the court
abused its discretion in denying his motion brought pursuant to
People v. Superior Court (Romero) (1996) 

13 Cal.4th 497

(Romero). Defendant further argues the sentencing minute order
and abstract of judgment must be amended to correct several
errors.
        We agree that a limited reversal is warranted to allow for
a new trial on the prior conviction allegation or for the court to
obtain a knowing and voluntary admission of the strike prior
consistent with applicable law and this opinion. We also agree
the sentencing minute order and abstract of judgment contain
errors. As for defendant’s Romero motion, we conclude the trial
court did not abuse its discretion in denying the motion.
       We reverse and remand with directions to the superior
court to vacate the sentence and to conduct a new trial limited to
the prior conviction allegation, or to obtain a knowing and
voluntary admission, and to conduct a new sentencing hearing
thereafter. Defendant’s conviction is affirmed in all other
respects.
       FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was charged with one count of injuring a spouse
or girlfriend (Pen. Code, § 273.5, subd. (a); count 1) and one count
of dissuading a witness (§ 136.1, subd. (b)(1); count 2). It was
also alleged defendant had suffered two prior strike convictions,
one in 2005 for assault (§ 245, subd. (a)(1)) and the other in 2014




                                 2
for burglary (§ 459). The burglary conviction was also alleged as
a prison prior (§ 667.5, subd. (b)). On the eve of trial, the court
granted the prosecution’s request to amend the information to
add a third count—a felony charge for assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(4); count 3).
The prosecution did not pursue the 2014 burglary conviction as a
strike prior, presumably because it had been reduced to a
misdemeanor under Proposition 47. The prison prior allegation
also was not pursued in light of amendments to section 667.5.
       The charges arose from a domestic violence incident that
occurred in the early morning hours of September 13, 2019,
sometime around 3:30. Defendant was at the apartment of his
then-girlfriend, Shanna M. Two of Shanna’s neighbors, Taina
Tapia who lived next door, and Karen Rivas-Sanchez who lived
directly below, both heard a loud commotion from inside
Shanna’s apartment that went on for several minutes.
       Ms. Tapia, who had become friends with Shanna since she
moved in, was awake despite the hour when she heard yelling
and loud noises through the common wall. Something or
someone bumped into the wall or onto the floor so hard that it
caused some of Ms. Tapia’s pictures to fall off her wall. Ms. Tapia
heard Shanna repeatedly scream, “Stop, you’re choking me.”
Defendant yelled “shut up” several times. When the fighting did
not stop, Ms. Tapia went next door and knocked loudly on both
the door and front window. She yelled several times trying to get
their attention to no avail. When things got quiet, Ms. Tapia got
worried and called 911.
       Ms. Rivas-Sanchez was awakened by a loud bang. She
heard yelling and what sounded like people running around in
Shanna’s apartment. Ms. Rivas-Sanchez heard Shanna




                                 3
repeatedly pleading with someone to “please stop” and she heard
a male voice saying “shut the f--k up.” She saw Ms. Tapia
knocking on Shanna’s door and yelling very loudly, asking if
Shanna was alright but no one answered the door. She heard
Ms. Tapia say she was going to call the police. Ms. Rivas-
Sanchez also decided to call 911.
       Los Angeles County deputy sheriffs arrived on the scene.
They knocked repeatedly on Shanna’s door and announced their
presence. After not receiving any response, they kicked in the
door. Defendant was yelling at Shanna to tell the deputies
everything was fine and to go away. Shanna was crying and
reluctant to speak to the deputies. After defendant was
handcuffed and placed in a patrol car, Shanna said she and
defendant had an argument and he pushed her to the ground but
would not say anything else. Deputy Robert Waterman noticed
Shanna had red marks on the front of her neck and her voice was
raspy consistent with having been choked.
       Ms. Tapia spoke with Shanna after defendant had been
taken away by the deputies. Shanna showed Ms. Tapia red
marks on her neck, arms and hands and said defendant had left
those marks on her. Shanna also told Ms. Tapia that defendant
threatened her with a hammer.
       The parties orally stipulated to Commissioner Yudkowsky
sitting as the trial judge. The jury trial began in December 2019.
The court granted defendant’s request to bifurcate trial of the
prior conviction allegation.
       Ms. Tapia, Ms. Rivas-Sanchez and Deputy Waterman
testified to the above facts at trial. Shanna testified and denied
that defendant had assaulted her. She said they were having sex
and got into a verbal argument, that defendant pushed her and




                                4
she fell into the swamp cooler in their apartment, knocking it
down and causing a loud noise. She denied screaming that
defendant was choking her, that he threatened her with a
hammer or that she had red marks on her neck, arms and hands
when the deputies arrived. Shanna said she gets red marks
sometimes from eczema.
      Defendant testified he went to Shanna’s apartment that
evening and they got into an argument while having sex. He said
Shanna was badgering him and when he stood up from the bed,
he bumped or shoved her and she fell against the swamp cooler.
The swamp cooler was heavy and made a loud noise when it fell
to the ground. Defendant denied hitting or attempting to
strangle Shanna.
      The jury found defendant guilty of dissuading a witness
and of assault by means of force likely to produce great bodily
injury (counts 2 & 3) and acquitted him on count 1.
      The court denied defendant’s Romero motion and found
defendant admitted his 2005 prior conviction. We reserve a more
detailed discussion of the facts regarding the admission of the
2005 strike prior to part one of the Discussion below. The court
sentenced defendant to eight years in prison (a four-year upper
term on count 3, doubled due to the strike, plus a concurrent two-
year midterm doubled on count 2). The court imposed various
fines and fees and awarded defendant 183 days of presentence
custody credits.
      This appeal followed. We granted defendant’s motion to
augment the appellate record to include a copy of the minute
order from the superior court amending his presentence custody
credits to reflect a total of 304 days (instead of 183 days).




                                5
                             DISCUSSION
1.     The Prior Conviction Allegation
       Admission of a prior conviction allegation, like a guilty
plea, requires a defendant to intelligently and voluntarily waive
his or her constitutional trial rights, including the right to trial
by jury, the right to confrontation of witnesses, and the privilege
against self-incrimination. (See People v. Farwell (2018)

5 Cal.5th 295

, 299-303 (Farwell).) The waiver of these
constitutional rights is commonly referred to as a Boykin/Tahl
waiver (Boykin v. Alabama (1969) 

395 U.S. 238

; In re Tahl (1969)

1 Cal.3d 122

).
       Respondent concedes the trial court failed to obtain a
Boykin/Tahl waiver from defendant and that a limited reversal
and remand for a trial on the prior strike allegation is warranted.
       In Farwell, supra, 

5 Cal.5th 295

, our Supreme Court
reaffirmed the principle that while explicit Boykin/Tahl
admonitions and waivers are not required, the record must
nonetheless affirmatively “demonstrate that the defendant
voluntarily and intelligently waived his constitutional trial
rights.” (Farwell, at p. 300.) We agree with the parties that the
record here does not affirmatively show defendant voluntarily
and intelligently waived his constitutional rights with respect to
trial of the prior strike allegation.
       At the start of trial, the court granted defendant’s request
to bifurcate the trial of the prior strike allegation. Defense
counsel stated he “assume[d]” his client would also be willing to
waive jury but no further discussion of the issue or any waiver
appears in the record at that time. Defendant’s trial brief
included the statement that “[c]ounsel believe[d]” defendant
would stipulate to the prior strike allegation. After the jury




                                 6
returned its verdict on the substantive charges, the jury was
dismissed before any waiver of the right to a jury trial on the
bifurcated prior strike was obtained from defendant. Then, in
discussing scheduling for the sentencing hearing, the court
indicated they would “deal with the priors” at the sentencing
hearing. Again, there is no colloquy on the record with defendant
regarding his right to a jury trial on the prior strike allegation.
       When the parties returned for sentencing, the prosecutor
stated she did not believe defendant had admitted the prior
strike—a point to which defense counsel agreed. The court said it
believed defense counsel “made the admission” in his sentencing
memorandum. The court asked defense counsel if defendant was
prepared to admit the prior strike and defense counsel said,
“I believe so.” Immediately thereafter, with no further
discussion, defendant said “Yes, sir.” The court accepted that as
an admission and proceeded to a ruling on defendant’s Romero
motion.
       After the court denied the Romero motion, the prosecutor
interrupted again and sought to clarify that the prior strike
allegation at issue was a 2005 conviction in Los Angeles Superior
Court for a violation of Penal Code section 245, subdivision (a)(1)
(assault with a deadly weapon). The court asked defendant if he
admitted that conviction and defendant said yes. There is
nothing else in the record demonstrating defendant’s
understanding of his trial rights with respect to the prior strike
allegation or his knowing waiver of those rights.
       Defendant had experience in the criminal justice system
and had just participated in a jury trial on the substantive
charge, but there is nothing to indicate he was aware he had the
same trial rights with respect to the prior strike allegation. A




                                7
limited reversal for a new trial on the prior strike allegation is
warranted. In the alternative, the court may obtain a knowing
and voluntary waiver and admission from defendant consistent
with applicable law and this opinion. Thereafter, the court shall
conduct a new sentencing hearing and prepare and forward a
new abstract of judgment to the Department of Corrections and
Rehabilitation. We express no opinion as to the appropriate
sentence to be imposed.
2.     The Romero Motion
       Defendant contends the trial court abused its discretion in
refusing to strike his 2005 assault conviction because the court
failed to consider all the relevant factors set forth in People v.
Williams (1998) 

17 Cal.4th 148

 (Williams) and relied on false and
irrelevant factors. (People v. Avila (2020) 

57 Cal.App.5th 1134

,
1141 [“abuse of discretion may be found where a trial court
considers impermissible factors, and, conversely, does not
consider relevant ones”].) We are not persuaded.
       “[A] trial court’s refusal or failure to dismiss or strike a
prior conviction allegation under [Penal Code] section 1385 is
subject to review for abuse of discretion.” (People v. Carmony
(2004) 

33 Cal.4th 367

, 375.)
       In Williams, 

supra, 17

 Cal.4th at page 161, our Supreme
Court explained that a trial court, in determining whether to
strike a prior serious or violent felony conviction, “must consider
whether, in light of the nature and circumstances of [the
defendant’s] present felonies and prior serious and/or violent
felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be




                                 8
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.”
       The trial court concluded defendant did not fall outside the
spirit of the Three Strikes law, reasoning that defendant
minimized the violent character of his 2005 strike prior (assault
with a deadly weapon), denied that the present charges occurred,
had an extensive criminal history throughout his adult life, and
had numerous probation and parole violations which
demonstrated that defendant, despite opportunities, “has not
been deterred from further criminal activity. . . . [¶] Taking the
totality of the defendant’s circumstances into account, this court
cannot conclude that the strike conviction should be dismissed in
the interest of justice.”
       Defendant contends the court relied on false information
because in reciting defendant’s criminal history, the court
referred to two felonies (a 2013 narcotics possession and a 2014
burglary) even though both had been reduced to misdemeanors
after the passage of Proposition 47, and because the court
asserted that defendant had used a weapon. Defendant also
argues the court failed to take into consideration the remoteness
of the 2005 strike, his history of substance abuse, the fact that
most of his convictions were for drug-related misdemeanors, and
the fact he had no convictions involving violence since the 2005
strike for assault committed when he was 23 years old.
       Respondent urges us to find the argument was forfeited to
the extent defendant failed to argue the two felonies had been
reduced to misdemeanors or that the court failed to consider all
relevant Williams factors. We decline to find forfeiture because
defendant raised the issues, albeit very briefly, in his written
motion.




                                 9
       Defendant has not shown the court abused its discretion.
In reciting the reasons for its rulings, the court is not required to
comment upon every possible factor considered. The court
explained its reasoning, focusing on the factors most relevant to
it in concluding a denial of the motion was warranted. The court
stated defendant had been armed as one factor, the only evidence
of which was the testimony of Ms. Tapia that Shanna had
reported defendant threatened her with a hammer. We do not
believe this establishes the court relied on inaccurate information
or that it otherwise undercuts the validity of the court’s ruling.
3.     The Abstract of Judgment
       The sentencing minute order and the abstract of judgment
incorrectly state that defendant’s assault conviction (count 3) is a
serious and violent felony. These errors should be corrected on
remand and not duplicated in the new sentencing order and
abstract of judgment prepared by the court after resentencing
defendant.
                          DISPOSITION
       The sentence is vacated and the case remanded with
directions to the superior court to hold a new trial on the prior
conviction allegation or obtain a knowing and voluntary waiver
and admission of the prior conviction from defendant in
accordance with applicable law and this opinion. Thereafter, the
superior court shall hold a new sentencing hearing and shall
prepare and forward a new abstract of judgment to the
Department of Corrections and Rehabilitation. Pending the new
sentencing hearing, the court is ordered to correct the error in the
original sentencing minute order and abstract of judgment that
incorrectly states the conviction on count 3 was a serious and
violent felony.




                                 10
      The judgment of conviction is affirmed in all other respects.



                              GRIMES, Acting P. J.

      WE CONCUR:

                        WILEY, J.




                        OHTA, J.*




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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