People v. Bailey

Docket NumberF079127
Decision Date07 February 2022
PartiesTHE PEOPLE, Plaintiff and Respondent, v. DEMETRIUS FRANK BAILEY, JR., Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. No BF164658A John R. Brownlee, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Nirav K. Desai, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HILL P. J.

INTRODUCTION

Just after midnight, on the morning of June 25, 2016, defendant Demetrius Frank Bailey, Jr., entered the house he shared with his girlfriend and fired four shots at his girlfriend's daughter and the daughter's boyfriend, wounding the boyfriend in the leg, hip, and abdomen. After threatening to shoot them if they reported the incident to police, defendant ordered the victims from the house and, as they walked down the street, again threatened them not to contact the police. A jury convicted defendant of attempted murder, criminal threats of great bodily harm (two counts), assault with a firearm (two counts), and dissuading a witness by force or threat (two counts). The trial court sentenced defendant to a total term of 302 years to life in prison pursuant to the "Three Strikes" law (§§ 667, subds (b)-(i), 1170.12, subds. (a)-(d)).[1]

Defendant contends on appeal (1) the trial court erred in admitting out-of-court statements as past recollection recorded where the witness was unable to remember being interviewed so as to attest to the truth of her statements; (2) the evidence was insufficient to support a conviction for dissuading a witness by force (count 7); (3) his sentence of 302 years to life in prison violates the Eighth Amendment bar on cruel and unusual punishment; and (4) the trial court erred in calculating defendant's presentence custody credits by failing to include the time defendant was confined in the state hospital after his competency was restored.

The People argue that defendant forfeited his claim of error regarding the out-of-court statements by not previously objecting on the ground he now raises, admission of the statements was not error, and the error, if any, was harmless. The People further argue that the evidence is sufficient to support the verdict on count 7, defendant forfeited his sentencing claim by not objecting in the trial court, and the trial court correctly calculated the presentence custody credits.

We affirm defendant's judgment but remand for the trial court to recalculate defendant's presentence custody credits.

PROCEDURAL BACKGROUND

Defendant was originally charged by complaint on June 28, 2016. Prior to defendant's preliminary hearing, on August 17, 2016 defense counsel raised a doubt as to defendant's competency pursuant to section 1368. The trial court found defendant incompetent to stand trial and committed him to the State Department of State Hospitals on November 15, 2016. After the trial court found defendant competent to stand trial on April 20, 2017, proceedings were reinstated, and defendant was held to answer after his preliminary hearing on May 3, 2017. The Kern County District Attorney filed an information on May 4, 2017. Defendant pled not guilty to all charges and denied all allegations alleged in the information on May 24, 2017.

During a motions in limine hearing on August 8, 2017, an amended information was filed charging defendant with attempted murder of Denzel[2] with premeditation and deliberation within the meaning of section 189 (§§ 664, 187, subd. (a); count 1), criminal threats against Denzel and Doneisha (§ 422; counts 2, 3, respectively), assault with a firearm as to Denzel and Doneisha (§ 245, subd. (a)(2); counts 4, 5, respectively), and dissuading a witness by force or threats of force as to Doneisha and Denzel (§ 136.1, subd. (c)(1); counts 6, 7, respectively). The amended information also alleged defendant personally and intentionally discharged a firearm causing great bodily injury during an attempted murder (§ 12022.53, subds. (c), (d); count 1), personally inflicted great bodily injury (§ 12022.7; counts 1, 2, 4), and personally used a firearm (§ 12022.53, subd. (b); count 7).[3] As to all counts, the amended information alleged defendant personally used a firearm (§ 12022.5, subd. (a)), four prior "strike" convictions within the meaning of the Three Strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), three prior serious felony convictions (§ 667, subd. (a)), and seven prior prison terms (§ 667.5, subd. (b)).

Defendant's trial ended in a mistrial on August 23, 2017, after the jury received information that was not in evidence.

After a second eight-day trial, the jury convicted defendant of all counts on October 26, 2018. As to count 1, the jury also found true that defendant committed attempted murder with deliberation and premeditation (§ 189), personally and intentionally discharged a firearm during the attempted murder (§ 12022.53, subd. (c)), personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and personally inflicted great bodily injury (§ 12022.7).[4] The jury also found true that defendant personally used a firearm in committing the offenses charged in counts 2 through 7 (§ 12022.5, subd. (a)) and personally inflicted great bodily injury as to Denzel in committing the assault charged in count 4 (§ 12022.7).[5]

Defendant waived his right to a jury trial regarding his prior convictions. The trial court granted the prosecutor's motion to dismiss defendant's section 667.5, subdivision (b) prior prison sentence enhancements. The trial court found true the allegations that defendant had been convicted of four prior "strike" offenses within the meaning of the Three Strikes law and that defendant had been convicted of three prior serious felonies within the meaning of section 667, subdivision (a). Prior to sentencing, the prosecutor notified the trial court that one of the convictions relied upon as both a "strike" and prior serious felony conviction was actually a misdemeanor and moved to strike the two enhancement allegations as to that conviction. On March 19, 2019, the trial court directed the probation officer to prepare an updated report and continued the sentencing hearing.

On April 9, 2019, the trial court heard defendant's motion for a new trial and sentenced him. The trial court denied defendant's motion for new trial and his motion to dismiss his prior convictions under the Three Strikes law pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.[6] As to count 1, the court sentenced defendant to a term of 42 years to life, plus 25 years (§ 12022.53, subd. (d)), and stayed the remaining enhancements (§§ 12022.53, subd. (c), 12022.7) pursuant to California Rules of Court, rule 4.447(b). As to counts 2, 3, 5, 6, and 7, the court sentenced defendant to terms of 25 years to life, plus 10 years on each count for personally using a firearm (§ 12022.5, subd. (a)). For each count, the court increased the sentence by 10 years (five years for each of defendant's two section 667.5, subdivision (a) prior serious felony convictions). The court imposed and stayed a 27 year-to-life sentence and two 10-year enhancement terms as to count 4 (§§ 667.5, subd. (a), 12022.5, subd. (a)) pursuant to section 654.

Defendant was sentenced to total term of 302 years to life in prison, plus a $300 restitution fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation fine (§ 1202.45, subd. (a)), victim restitution (§ 1202.4, subd. (f)(2)), [7] court operations assessments totaling $280 (§ 1465.8), and criminal conviction assessments totaling $210 (Gov. Code, § 70373). The court credited defendant with 1, 166 days for time in custody, comprised of 1, 019 days of actual custody credit and 147 days of conduct credit.

This timely appeal followed on April 10, 2019.

FACTS
I. The People's case.
A. Doneisha

Doneisha first met defendant in approximately September 2015, when defendant and Doneisha's mother, Volonda, visited Doneisha while she was incarcerated for a crime involving moral turpitude. Doneisha next saw defendant when defendant and Volonda picked her up from prison after her release on June 8, 2016. Defendant had been living with Volonda for some time. Doneisha had problems with defendant because he failed to return Volonda's car on time when Volonda permitted him to use it.

Doneisha stayed with Volonda the night she was released from prison and with a friend for serval nights thereafter. Doneisha returned to Volonda's house and stayed in the guest bedroom located across from the primary bedroom shared by defendant and Volonda. On cross-examination, Doneisha admitted that she previously testified to staying with Volonda between June 23 and June 25, 2016, but later testified that she arrived the night of June 20, 2016.

According to Doneisha, when she moved in with Volonda in late June 2016, defendant was not staying at Volonda's house. Doneisha's boyfriend of two years, Denzel, occasionally stayed with Doneisha in Volonda's house toward the end of June 2016. Her contact with Denzel violated the terms of her parole, and she did not report it to her parole officer.

On June 23, 2016, Doneisha drove Volonda to San Joaquin Hospital (the hospital) where it was determined that Volonda had suffered two strokes. Approximately two hours after arriving at the hospital, defendant arrived to visit Volonda. Doneisha saw defendant in the parking lot before he went to Volonda's hospital room and argued with him because she did not...

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