People v. Smith
| Decision Date | 14 April 2020 |
| Docket Number | H045505 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAVION SMITH, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS161898A)
Defendant Davion Smith appeals after he was found guilty by jury of involuntary manslaughter (Pen. Code, § 192, subd. (b)),1 battery with serious bodily injury (§ 243, subd. (d)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and intimidating a witness (§ 136.1, subd. (b)(1).) The jury found true the allegations that defendant personally inflicted great bodily injury during the commission of the assault (§ 12022.7, subd. (a)), had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)), and had served a prior prison term (§ 667.5, subd. (b)). The trial court found true the allegation that defendant committed the offense of intimidating a witness while he was released on bail (§ 12022.1) (on bail enhancement). The trial court sentenced defendant to an aggregate term of 18 years.
Defendant's contentions on appeal pertain solely to various sentence enhancements. First, defendant contends that his counsel was constitutionally ineffective for failing to object to a detective's testimony identifying defendant as the person depicted in booking photographs introduced into evidence during the bifurcated trial on the strike prior and prior prison term. Second, defendant contends that the use of his juvenile adjudication to enhance his sentence under the "Three Strikes" law was unconstitutional and the record lacks substantial evidence that he was age 16 or older when he committed the juvenile offense, as statutorily required for an adjudication to constitute a strike. Third, defendant contends the trial court's finding that defendant was released on bail when he committed the offense of intimidating a witness is not supported by substantial evidence and the trial court improperly imposed punishment on the enhancement. Fourth, defendant contends that the prior prison term enhancement must be stricken based on recent legislation.
For reasons that we will explain, we will reverse the judgment.
On August 25, 2015, defendant confronted Tyler Webb, who allegedly owed him money. Defendant asked Webb, " 'Where's my money, man?' " Defendant punched Webb, and Webb fell and hit his head on the cement, causing brain damage.
Someone reported a man lying in the street in the area of " 'Chinatown,' " a homeless encampment in Salinas. Webb was found nonresponsive inside a tent and was transported to a local hospital where he died.
Defendant was arrested on August 31, 2015. During a police interview, defendant denied being involved in an altercation with Webb or that Webb owed him money.
On February 25, 2016, a witness reported that he had been pressured by defendant's father not to cooperate with the police investigation. After defendant was released from jail, defendant approached the witness several times, encouraging him to change his story. Defendant's brother also contacted associates of the witness to discourage the witness from testifying. The witness became concerned for his safety and worried that defendant might try to kill him.
Defendant was charged with involuntary manslaughter (§ 192, subd. (b); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), and dissuading a witness (§ 136.1, subd. (b)(1); count 4). It was also alleged that defendant personally inflicted great bodily injury during the commission of count 3 (§ 12022.7, subd. (a)) and that he was on bail when he committed count 4 (§ 12022.1, subd. (b)). Finally, it was alleged that defendant had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)).
A jury found defendant guilty of all counts and found true the allegation that defendant personally inflicted great bodily injury during the commission of count 3. In a bifurcated trial, the jury found the prior strike and prior prison term allegations true. The trial court found true the allegation that defendant had committed count 4 while on bail.
After denying defendant's motion to strike the prior strike finding, the trial court sentenced defendant to an aggregate term of 18 years as follows: the court imposed the upper term of four years on count 3, doubled to eight years based on defendant's prior strike, plus a consecutive three-year term for the great bodily injury enhancement; a consecutive two-year term on count 4, doubled to four years based on defendant's strike, plus a consecutive two-year term for the on bail enhancement; and a consecutiveone-year term for defendant's prior prison term enhancement. Pursuant to section 654, the court imposed and stayed terms of four years each, doubled to eight years each based on defendant's strike, on counts 1 and 2.
During the bifurcated trial on the prior strike and prior prison term allegations, the prosecution introduced 2011 and 2013 booking photographs into evidence. Defendant contends that his counsel was constitutionally deficient for failing to object to Detective Cameron Murphy's testimony that he knew defendant was the person depicted in the photographs. The Attorney General asserts that the claim must be rejected because defendant cannot establish that he was prejudiced by counsel's failure to object to the testimony.
Defendant was tried by jury in a bifurcated trial on the allegations that he had suffered a prior serious or violent felony juvenile adjudication and had served a prior prison term. After moving a number of certified records into evidence, the prosecution called one witness, Detective Murphy.
Detective Murphy identified defendant and testified that he was familiar with defendant because "[t]hrough this process of investigation, [he] met with him on several occasions." The prosecution presented Detective Murphy with an April 7, 2011 booking photograph. When asked if he knew the person in the booking photograph, Detective Murphy responded, The prosecution next handed Detective Murphy a July 3, 2013 booking photograph. When asked whether he knew the person in that photograph, Detective Murphy answered, Defendant did not object to either question or move to strike Detective Murphy's responses.
On cross-examination, defense counsel asked Detective Murphy whether he was familiar with defendant in 2011. Detective Murphy stated that he "may have seen him before in that time," but he "did not have a personal relationship or . . . recall contacting him in person." Defense counsel inquired whether Detective Murphy was familiar with defendant's "photographs [sic] . . . in 2011." Detective Murphy responded that he had not seen "that photograph from 2011 at that time." He also stated that he had not had daily contact with defendant and that the most contact he had experienced with defendant occurred after the end of August 2015.
The prosecution rested, and defendant did not present any evidence.
When instructing the jury, the trial court read CALCRIM No. 3101, informing the jury that
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his or her counsel's performance was deficient and that he or she suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Prejudice requires a showing of "a ' "demonstrable reality," not simply speculation.' " (People v.Fairbank (1997) 16 Cal.4th 1223, 1241.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, supra, at p. 697.)
Defendant contends that his counsel was constitutionally deficient for failing to object to Detective Murphy's testimony identifying defendant as the individual depicted in the 2011 and 2013 booking photographs. Defendant argues that the testimony was impermissible because there was no evidence that Detective Murphy was familiar with defendant's appearance in 2011 and 2013 and because the testimony constituted impermissible lay opinion. Defendant asserts that he was prejudiced by the testimony because ...
To continue reading
Request your trial