People v. Davis

Decision Date21 January 2020
Docket NumberC082954
PartiesTHE PEOPLE, Plaintiff and Respondent, v. LOVE DAVIS, JR., Defendant and Appellant.
CourtCalifornia Court of Appeals

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On March 24, 2015, defendant, a long-time methamphetamine user with acknowledged mental health issues, awoke in a motel room. After he left the room, he believed that he spotted individuals following him. On two occasions, he asked law enforcement officers for help, but he was ultimately left on his own at a gas station. Believing an armed man was approaching the gas station and intended to hurt or kill him, defendant entered the victim's car which was parked at one of the fuel pumps with the keys in the ignition. After a struggle with the victim, defendant drove away in the car. California Highway Patrol (CHP) officers located the car within minutes. Defendant led CHP officers on a high-speed chase on the freeway for more than 45 minutes, traversing three counties, with speeds exceeding 100 miles per hour, before defendant hit the center median and the car came to a stop on the side of the road.

A jury found defendant guilty of carjacking and driving in a willful or wanton disregard for the safety of persons or property while fleeing or attempting to elude a police officer (felony evasion). The same jury then determined that defendant was not legally insane at the time of the charged offenses. In a bifurcated proceeding, the trial court found true prior serious felony conviction allegations and prior prison term enhancement allegations. The court then denied defendant's Romero motion1 and sentenced him as a "Three Strikes" offender to 27 years to life and an additional determinate term of 30 years.

On appeal, defendant asserts that the admission of case-specific hearsay and testimonial hearsay through a mental health expert at the sanity phase violated state hearsay rules and his Sixth Amendment right to confront and cross-examine witnesses, and that, to the extent that the argument was forfeited, he received constitutionally ineffective assistance of counsel. He further asserts that the trial court abused its discretion in declining to strike prior convictions and prior prison term enhancement allegations and in imposing the upper term on count two. Defendant also asserts that the sentence imposed constitutes cruel and unusual punishment under the Eighth Amendment. And in supplemental briefing, defendant contends that any forfeiture of these sentencing issues resulted from ineffective assistance of counsel. Defendant also asserts that, following the enactment of Senate Bill No. 1393, the matter must be remanded to afford the trial court the opportunity to exercise its newly authorized discretion to strike the two five-year prior serious felony conviction enhancementsimposed pursuant to Penal Code section 667, subdivision (a).2 In supplemental briefing, defendant asserts that, following the enactment of Senate Bill No. 136, we must strike all of the prior prison term enhancements.

We agree that, following the enactment of Senate Bill No. 1393, the matter must be remanded for the court to consider whether to exercise its discretion to strike the prior serious felony conviction enhancements. Additionally, we shall strike the prior prison term enhancements. Otherwise, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
The Charges & Insanity Plea

The People charged defendant with carjacking (§ 215, subd. (a); count one), and felony evasion (Veh. Code, § 2800.2, subd. (a); count two). The People further alleged that defendant had two prior convictions of a serious and violent felony, specifically robbery (§ 211) and first degree burglary (§ 459), and thus was eligible for a Three Strikes life sentence pursuant to sections 667, subdivision (e)(2), and 1170.12, subdivision (c)(2). It was further alleged that defendant had served seven prior prison terms within the meaning of section 667.5, subdivision (b).

Defendant entered pleas of not guilty and not guilty by reason of insanity. The trial court appointed two experts to investigate defendant's mental status pursuant to section 1027. Later, the parties and the court agreed that one of the reports was inconclusive, and the court appointed two additional experts for the same purpose.

Guilt Phase - Evidence Presented by the Prosecution

On March 24, 2015,3 CHP officer Terrence Plumb was in the parking lot of an AM/PM gas station in Sacramento completing a traffic stop when defendant approached him. Defendant told Plumb that there were people following him. He said that one of the men was a black male wearing a camouflage jacket and defendant thought the man had a gun. Defendant asked Plumb for a ride to South Sacramento. Plumb told defendant he would look for the person and drove around the parking lot for several minutes, but he did not see anyone. After looking around, Plumb could not find defendant, so, assuming that defendant had gone on his way, Plumb left the area. Nothing about the exchange led Plumb to believe that defendant was a danger to himself or others.

The victim testified that, at approximately 1:45 p.m., she stopped at an AM/PM location to get gas and some cold drinks. She went inside to pay for gas, bought drinks, and returned to her car. She then placed the drinks in her car and pumped gas. As she replaced the fuel nozzle in the pump, defendant came around the back of the car and attempted to knock the victim off her feet. The victim grabbed defendant's sweatshirt. Defendant then "just started wailing [sic] on [her] telling [her] to get the F away from his car." He told her, " 'Get the fuck away from my car, bitch.' " The victim grabbed defendant and yelled for help. Defendant managed to get into the victim's car, but the victim continued to struggle with defendant as he attempted to start the car using the keys that the victim had left in the ignition. As the victim tried to pull defendant's hand away from the keys, defendant "just kept hitting" her arm and kicking her away. Defendant started the car and began to drive away, and the victim fell backwards and hit her head on the curb. She estimated that she was dragged eight to 10 feet before letting go. As a result, she sustained injuries, including injuries to her left knee and her right arm. Shealso had a bad headache that lasted several days. The prosecutor played for the jury a surveillance video recorded at the AM/PM station, which showed the incident.

Within minutes, the victim reported the incident to CHP. She gave CHP a description of her car, a Buick La Sabre, and the license plate number.

CHP Officer Gary Paul, on his motorcycle, was on Fulton Avenue at approximately 1:55 p.m. when he spotted the La Sabre stopped at a red light. Paul notified dispatch that he had located the vehicle. Paul followed the La Sabre, but, because there were no other units present yet, he did not activate his lights and siren. Defendant made several turns, causing Paul to believe that defendant knew law enforcement was behind him and "was just seeing if I was following him or just trying to get rid of me." Defendant stopped at a red light at Marconi Avenue and Bell Street, at which point CHP Officer Brenda Powers approached the area. When the light turned green, Powers activated her emergency lights, and Paul did the same. However, defendant did not pull over. The officers continued to follow defendant on Auburn Boulevard, where defendant rapidly accelerated, reaching at least 60 miles per hour in what Paul believed to be a 35-miles-per-hour zone. At Bell Street, defendant failed to stop for a stop sign, crossed a double yellow line, and "shot onto eastbound Business 80."

Powers testified that defendant drove at speeds in excess of 105 miles per hour. Powers testified that defendant drove at these speeds "for the better half -- I believe I was primary in the pursuit for about a half-hour or more, approximately 55 miles." Powers described defendant as making unsafe lane changes, passing other vehicles on the right, driving on the shoulder, and kicking up debris, some of which shattered Powers's windshield. At Douglas Boulevard, defendant exited, continued over the freeway, and got onto the freeway going westbound. Defendant used all three lanes "in extreme fashions at high speeds."

Plumb, the CHP officer who had encountered defendant at the AM/PM, participated in the pursuit for approximately 10 to 15 minutes, eventually taking theposition of secondary officer. Plumb followed defendant "from roughly Greenback/Madison area westbound into and around the City of Davis." Defendant used all the traffic lanes on the freeway and both the right shoulder and the center divider. Defendant drove at "[j]ust over a hundred miles an hour." At the time, the traffic level was moderate. "[T]here were multiple vehicles on the roadway that necessitated the suspect to veer around and use all lanes." Near Davis, Plumb dropped out of the pursuit and was replaced by other officers. Near the Richards Boulevard exit in Davis, Powers handed off the primary pursuit of defendant to a Woodland CHP officer.4

CHP Officer Joel Merrill, posted in Woodland, joined the pursuit and, around Mace Boulevard, became lead pursuer. Merrill testified that defendant was driving between 85 to "a hundred-plus" miles per hour. He was using all of the lanes on the freeway, including the center divider and the shoulder. He was making erratic lane changes and cutting off other vehicles. At one point, the vehicle defendant was driving kicked up a large bolt that shattered Merrill's windshield. Merrill remained the primary pursuer from Mace...

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