Reprinted with permission from the Central California Appellate Program
Weekly Case Summaries: October 29 – December 3, 2018
Case Name: People v. Vera (2018) 28 Cal.App.5th 1081 , District: 4 DCA , Division: 2 , Case #: E069367
Opinion Date: 11/5/2018 , DAR #: 10746
Trial court did not err in denying defendant’s motion to suppress drug evidence where a dog sniff that occurred while an officer was writing a citation did not unconstitutionally prolong defendant’s detention for a traffic stop. A police officer with a narcotics-certified dog stopped Vera because his car windows were illegally tinted. Because the officer could not see into Vera’s car, he ordered Vera out of the car. Vera gave the officer permission to retrieve his driver’s license and registration. During this time, a second officer arrived. The first officer performed a records check and did not find any warrants. He also examined a knife that he found during a pat-search of Vera and determined it was not an illegal switchblade. He then asked the second officer to write a citation for the window tint violation. While he was retrieving his citation book and his dog from his patrol car, the first officer repeatedly asked Vera for consent to search his car and Vera refused. Before the second officer finished writing the citation, the dog alerted on the trunk of the car and the interior dashboard. Drugs were found during a search of the car. Vera was charged with a drug offense and filed a motion to suppress the evidence, arguing that that his traffic stop was unreasonably prolonged under Rodriguez v. United States (2015) __ U.S.__, 135 S.Ct. 1609. The motion to suppress evidence was denied. Vera pleaded no contest and appealed. Held: Affirmed. In Rodriguez,the U.S. Supreme Court held a seizure of a driver that is justified only by a police-observed traffic violation becomes unlawful when a suspicionless dog sniff prolongs the traffic stop beyond the time needed to handle the matter for which the stop was made. Applying Rodriguez’s reasoning to the facts of this case, the Court of Appeal concluded there was no reason to conclude that Vera’s traffic stop was unconstitutionally prolonged by the use of a dog to sniff his vehicle. The court noted that it did not necessarily end the inquiry that the dog alerted before the citation was issued. A defendant in this situation could still demonstrate that the dog alert came after the time at which the citation reasonably should have been issued had there been no dog sniff, but Vera did not make this showing.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E069367.PDF
Case Name: People v. Acosta (2018) 29 Cal.App.5th 19 , District: 2 DCA , Division: 6 , Case #: B263849
Opinion Date: 11/13/2018 , DAR #: 10878
Where trial court pronounced an aggregate sentence for multiple felony convictions in three separate cases, it could reimpose prior prison term enhancements, subject to Proposition 47, after all but one of the offenses were reduced to misdemeanors. In May 2014 Acosta was sentenced in three separate cases. The sentence in case 2 included six years for six prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). In case 1, the trial court purported to dismiss the six prior prison term enhancements because the same enhancements had been used to add six years to Acosta’s sentence in case 2. After Proposition 47 passed, Acosta successfully petitioned to reduce all but one of his felony offenses in the three cases to misdemeanors. When the trial court resentenced Acosta on the remaining felony in case 1, the sentence included six years for the previously dismissed prior prison term enhancements. On appeal, Acosta argued the trial court exceeded its jurisdiction by enhancing the sentence with the six previously dismissed prior prison term enhancements. Held: Subject to Proposition 47, trial court had authority to reimpose the prior prison term enhancements. Prior prison term enhancements are status enhancements that can be imposed only once, on the aggregate sentence. The trial court’s purported dismissal of the six enhancements in case 1 was not a true dismissal. The sole reason for the “dismissal” was that the enhancements had already been imposed in case 2 and therefore could not be imposed again to increase the aggregate sentence. When the trial court resentenced appellant to a misdemeanor in case 2, the prior prison term enhancements in that case became inapplicable because they can be imposed only where the new offense is a felony. “Subject to Proposition 47, they remained available for sentencing purposes because they had been imposed on the aggregate sentence and were not attached to a particular count or case.”
Trial court must strike three of the prior prison term enhancements because the underlying felonies were reduced to misdemeanors and the judgment containing the enhancements was not final when Proposition 47 took effect. During Acosta’s Proposition 47 proceedings, the trial court also reduced the felony convictions that were underlying three of the prior prison term enhancements to misdemeanors. However, the trial court still imposed the prior prison term enhancements that were based on these offenses. Relying on the California Supreme Court’s decision in People v. Buycks (2018) 5 Cal.5th 857, which was decided after Acosta’s resentencing, the Court of Appeal remanded the matter to the trial court with directions to strike the three prior prison term enhancements based on the felony convictions reduced to misdemeanors under Proposition 47. In Buycks, the court held that “a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect.” Acosta’s judgment was not final when Proposition 47 took effect on November 5, 2014. “Therefore, Buycks requires the trial court to strike the three prior prison term enhancements based on felony convictions reduced to misdemeanors under Proposition 47.” On remand, the trial court shall conduct a full resentencing so it can exercise its sentencing discretion in light of changed circumstances.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B263849A.PDF
Case Name: Caretto v. Superior Court (People) (2018) 28 Cal.App.5th 909 , District: 2 DCA , Division: 8 , Case #: B265256
Opinion Date: 11/1/2018 , DAR #: 10662
The balances in bank accounts linked to stolen debit cards may be considered in determining the fair market value of the stolen cards. Caretto pleaded no contest to two counts of receiving stolen property (Pen. Code, § 496) after he was found with two stolen debit cards. After Proposition 47 amended section 496 to provide that receiving stolen property valued at $950 or under is a misdemeanor, Caretto filed a motion during his probation violation proceedings requesting that these offenses be reduced to misdemeanors. The trial court concluded that the value of the cards was the amount of money in the accounts linked to the cards, which exceeded $950, and denied the motion to reduce the felony offenses to misdemeanors. Caretto filed a writ of mandate and the California Supreme Court ultimately transferred the matter to the Court of Appeal to reconsider the issue in light of People v. Romanowski (2017) 2 Cal.5th 903, which was decided after the trial court proceedings in this case. Held: Petition granted. In determining the value of stolen access card information, the court in Romanowski held that the “reasonable and fair market value” test for theft crimes requires courts to identify how much stolen access card information would sell for, and this can include illegal sales. After analyzing Romanowski, the Court of Appeal concluded that “a host of evidence could be relevant to the fair market value of stolen access cards, from actual fraudulent charges and the balances in linked accounts to expert testimony on the illegal market for stolen cards.” Although the trial court here was entitled to credit the victim’s statement about the amount of money in his accounts to infer that the stolen debit cards would have been valued in the marketplace at or near the balances in the linked accounts, Caretto should be given an opportunity to present evidence consistent with Romanowski in order to rebut the People’s showing.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B265256A.PDF
Case Name: People v. Kelly (2018) 28 Cal.App.5th 886 , District: 5 DCA , Case #: F071934
Opinion Date: 11/1/2018 , DAR #: 10610
Where defendant’s two prior convictions were redesignated as misdemeanors prior to his sentencing in a new case, prior prison term enhancements (Pen. Code, 667.5, subdivision (b)) based on these prior convictions could not be imposed. Kelly was convicted of several felonies and the court found true nine prior prison term enhancements under section 667.5. Prior to sentencing in this case, Kelly’s seventh and eighth prior prison term felonies were reduced to misdemeanors under Proposition 47. At sentencing for the current offenses, he argued that he should only be subject to a prior prison term enhancement for his two most recent convictions. The trial court disagreed and imposed eight of the nine prior prison term enhancements. Kelly appealed. Held: Judgment modified to strike seven of the eight prior prison term enhancements, and the matter was remanded for resentencing. Section 667.5, subdivision (b) imposes a one-year enhancement for a prior, separate prison term served on a felony conviction and requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. In People v. Buycks (2018) 5 Cal.5th 857, 871, the California Supreme Court “conclude[d] that Proposition 47’s mandate that the resentenced or redesignated offense ‘be considered a misdemeanor for all purposes’ (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 . . . enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors.” Because Kelly successfully petitioned for the reduction of the felonies underlying his seventh and eighth prior prison term enhancements to misdemeanors prior to his sentencing, these section 667.5, subdivision (b) enhancements could not be imposed.
When a felony conviction is reduced to a misdemeanor under Proposition 47, the prison term associated with that conviction may not be used to bar application of the washout provision of section 667.5, subdivision (b). Kelly also argued that, once his seventh and eighth prior convictions were redesignated to misdemeanors, over five years passed from his release from custody for prior conviction six to when he committed prior conviction nine and, therefore, all of his prior convictions except prior conviction nine washed out under section 667.5, subdivision (b). The Court of Appeal agreed. Under the washout provision, the section 667.5, subdivision (b) enhancement is not imposed if the defendant is free of both felony convictions and incarceration in prison for five years following release from the previous incarceration. In People v. Warren (2018) 24 Cal.App.5th 899, 915 (also a Fifth District case), the majority held that the language of section 1170.18, subdivision (k), construing recalled or redesignated felonies as “misdemeanors for all purposes,” should be interpreted broadly and the only way to harmonize that language with the literal language of the washout provision of section 667.5 was to reject the language of the washout provision. The court here agreed with the reasoning of Warren and concluded Buycks further supported the decision. “Buycks held that a conviction reduced to a misdemeanor under Proposition 47 could not be considered a felony under section 667.5(b), and we see no basis as to why the application of Proposition 47 should not likewise extend to the washout provision of section 667.5(b).”
Under the facts of this case, trial court did not err under Penal Code section 654 when it imposed a sentence for evading a pursuing peace officer consecutively with a sentence for transportation of methamphetamine. The court imposed a 16-month sentence for evading a pursuing peace officer consecutively with an 8-year sentence for transportation of methamphetamine. Kelly argued the trial court erred in imposing a consecutive sentence for his evading a pursuing peace officer conviction rather than staying the sentence under section 654, which bars multiple punishment for the same act or omission. He argued that the actions forming the bases of the convictions for both charges consisted of the single act of driving the car. The Court of Appeal disagreed. Substantial evidence supported the trial court’s implicit finding that Kelly’s crimes were committed for different objectives and the court, therefore, did not err in ordering a consecutive sentence for the evasion conviction. Prior to encountering law enforcement, there was ample evidence that Kelly was transporting a significant amount of methamphetamine in his car. At that time, his intent was an intent to transport methamphetamine for its eventual sale. Once sheriff’s deputies attempted to conduct a traffic stop, his conduct and objective changed. His new objective was to evade the peace officers, and his driving behavior reflected that intent based on his several traffic violations in his attempt to get away.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F071934M.PDF
Case Name: People v. Franske (2018) 28 Cal.App.5th 955 , District: 3 DCA , Case #:C081591
Opinion Date: 11/1/2018 , DAR #: 10607
The theft of items from an employee’s purse in a commercial establishment while open during regular business hours may qualify as shoplifting under Penal Code section 459.5. In 2010, Franske went into Dole Transportation to inquire about a motor home for sale and an employee left the main lobby to contact the owner. When the employee returned she found Franske had taken items from her purse, which had been in her office. Franske pleaded no contest to second degree burglary (in addition to other offenses committed earlier), and her sentence was enhanced under Penal Code section 12022.1, because she was out of custody on bail for another offense when she committed the burglary. The trial court later granted Franske’s Proposition 47 petition in part and reduced the burglary to shoplifting, but denied her request to strike the on-bail enhancement. Franske and the People both appealed. Held: Affirmed. Proposition 47 added section 459.5, subdivision (a), which defines shoplifting “as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” Based on the plain language of the statute, Franske’s conduct fits within the definition of misdemeanor shoplifting. The Court of Appeal disagreed with the People’s argument that “shoplifting” is meant to cover only the stealing of openly displayed merchandise. [Editor’s Note: In an unpublished part of the opinion, the Court of Appeal concluded that the trial court properly denied Franske’s request to strike the on-bail enhancement because her conviction was final when Proposition 47 passed. (See People v. Buycks (2018) 5 Cal.5th 857.)]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/C081591A.PDF
Case Name: People v. Bonilla (2018) 29 Cal.App.5th 649 , District: 3 DCA , Case #:C082144
Opinion Date: 11/29/2018 , DAR #: 11308
Trial counsel was not ineffective for failing to defend against vandalism charges by asserting the victim’s violation of a civil statute because a person may not commit a crime in response to the breach of a civil statute. The three defendants were convicted of felony vandalism. The case arose out of a confrontation between the defendants and a repossession agent who was in the process of taking a car. On appeal, defendants raised a number of issues, primarily based on ineffective assistance of trial counsel (IAC). Held: Affirmed. A defendant asserting IAC must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that defendant was thereby prejudiced. Defendants argued trial counsel erroneously failed to raise a defense based on California Uniform Commercial Code section 9609, which provides that a secured party may take possession of collateral without judicial process if it proceeds without a breach of the peace. Defendants argued that as soon as they protested the attempted repossession of their car, the repossession agent was required to cease any attempts to take the car and that any acts on his part after that time were at his own risk to himself and his property. However, section 9609 has no application to the criminal charge of felony vandalism and does not provide a defense to that offense. Defendants’ conduct in retrieving the car was not one of the lawful remedies to a violation of section 9609, as enumerated in section 9625. Further, there is no authority permitting a person to commit a crime in response to an unsanctioned repossession that results in a breach of the peace. Comparative fault is not a defense in criminal proceedings.
Trial counsel was not ineffective for failing to clarify the vandalism jury instructions.During deliberations the jury asked what items of property were included in the vandalism charge. Pursuant to defense counsel’s request, the trial court told the jury it must decide what, if any, property was vandalized. On appeal, defendants argued trial counsel should have made sure the jury understood the instructions and was ineffective in not doing so. However, the instructions provided to the jury gave a complete and accurate statement of the governing law. Defendants failed to state how trial counsel should have sought to clarify the instructions, or how any clarification would have created a reasonable probability of a more favorable verdict. The record also revealed that defendants’ counsel could have made a tactical decision in failing to provide additional guidance to the jury’s question, since the question indicated the jury disagreed as to what items, if any, the prosecution proved were vandalized.
The trial court did not abuse its discretion in denying defendants’ motion for new trial.A trial court may grant a new trial when new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial. The court must consider whether the newly discovered evidence is of such strength that a result more favorable to the defendant is probable had the evidence been admitted at trial. In support of their motion, defendants offered the declaration of one of their former employees as to matters he witnessed the day of the incident. However, defendants failed to show that this witness could not have been discovered with reasonable diligence before trial. The motion was properly denied.
The trial court did not abuse its discretion in denying defendants’ request to reduce their felony convictions to misdemeanors under Penal Code section 17. Defendants filed a motion with the trial court asking the court to exercise its discretion under section 17, subdivision (b), to reduce each of their felony convictions to misdemeanors and not to impose custody time as part of their sentences. They argued that they did not have criminal intent, and the incident resulted from a mistake and bad luck. The trial court denied the motion and the defendants challenged this ruling on appeal. The Court of Appeal concluded the trial court did not abuse its discretion. The decision to reduce a wobbler from a felony to a misdemeanor under section 17, subdivision (b) is solely in the discretion of the trial court. The relevant criteria include the nature and circumstances of the offense, the defendant’s attitude toward the offense, or his behavior and demeanor at trial. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Here, the trial court was well within its discretion in finding that the nature and circumstances of the offense did not merit either reducing the felonies or granting defendants’ request for no custody time, where the defendants resorted to self-help in committing the crime before leaving the scene.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/C082144.PDF
Case Name: People v. Phea (2018) 29 Cal.App.5th 583 , District: 3 DCA , Case #: C080488
Opinion Date: 11/28/2018 , DAR #: 11313
Trial court did not err by instructing the jury with CALCRIM No. 1191 regarding defendant’s prior uncharged sex offenses. Phea was charged with 31 child molestation offenses against three minors and two offenses for furnishing controlled substances to a minor. Two additional witnesses testified about uncharged conduct that occurred many years before when they were under 16 years old. The court instructed the jury that it could consider the uncharged conduct if the prosecution had proven by a preponderance of the evidence that Phea committed those uncharged sexual offenses and, based on that conduct, Phea was likely to commit the charged offenses. (CALCRIM No. 1191.) The jury convicted Phea. On appeal, he argued that the instruction was flawed because it allowed jurors to infer guilt based merely on the commission of other crimes established only by a preponderance of the evidence and that the instruction contradicted CALCRIM No. 224 regarding circumstantial evidence. Held: Affirmed, but remanded on other grounds. Evidence Code section 1108 allows the admission of evidence of uncharged sexual offenses subject to Evidence Code section 352. Requiring section 1108 evidence be proved by a preponderance of the evidence does not reduce the prosecution’s burden of proof as to the charged offenses. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) CALCRIM No. 224, addressing circumstantial evidence, instructs the jurors that each fact essential to a conclusion of guilt must be proved beyond a reasonable doubt. The two standards are reconciled by the different purposes for which the evidence is used. The court concluded that the jurors could readily understand the distinction drawn, and the differing burdens of proof attached to CALCRIM Nos. 224 and 1191. It is not reasonably likely a jury would conclude that the lower standard of proof would apply to the proof of the charged offenses.
In the Third District, McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 will not provide a basis for finding Evidence Code section 1108 unconstitutional because the case has no application in the context of uncharged sexual misconduct evidence. To preserve the issue for further review, Phea argued that admission of the section 1108 testimony violated his due process and fair trial rights, citing McKinney and other older cases, while acknowledging that the California Supreme Court has found section 1108 to be constitutional. (See People v. Falsetta (1999) 21 Cal.4th 903.) The Court of Appeal here concluded that the contention that section 1108 is unconstitutional is “completely meritless.” The Third District previously observed that reliance on McKinney in the context of uncharged sexual misconduct evidence is misplaced. In McKinney, the Ninth Circuit held the admission of evidence that was probative only of the defendant’s character violated due process. However, McKinney did not involve uncharged sexual misconduct evidence and was decided before the enactment of the federal and state rules allowing evidence of uncharged sexual assault and child molestation. The Ninth Circuit and other federal courts have long since upheld the constitutionality of these evidentiary rules. (See, e.g., U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1027.) The court explained that it “expressly reject[s] McKinney v. Rees, supra, 993 F.2d 1378 as grounds upon which to find that section 1108 is constitutionally invalid on its face and conclude[d] that trial counsel’s performance was not deficient for failure to rely upon it.”
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C080488.PDF
Case Name: People v. Rodas (2018) 6 Cal.5th 219 ,CalSup , Case #: S237379
Opinion Date: 11/26/2018 , DAR #: 111083
Where a criminal defendant had been restored to competence through medication, evidence the defendant was no longer taking the medication and was exhibiting signs of incompetence required a new competency hearing. Prior to his trial for three murders and two attempted murders, criminal proceedings against Rodas were suspended to conduct a competence examination. (Pen. Code, § 1368.) The doctors found appellant suffered from severe mental illness and he was committed to a state hospital. After several months of treatment, doctors found he was competent due to medication he had been given, and that he had to continue his medication to remain competent. The court reinstated criminal proceedings. Trial counsel again expressed a doubt as to Rodas’ competence. The trial court also learned Rodas was off his medications. After conducting a short colloquy with Rodas, the trial court concluded he was competent. A jury found him guilty on several counts. Rodas appealed. The Court of Appeal affirmed and the California Supreme Court granted review. Held: Reversed. A person cannot be tried or punished while mentally incompetent. A person is incompetent to stand trial if, as a result of mental disorder, the defendant is unable to understand the nature of the criminal proceeding or of assisting in his defense. Penal Code section 1368 requires a trial court to make inquiry regarding a defendant’s mental state if it has any doubt as to the defendant’s competence. Here, the trial court erred by not instituting a second round of competency proceedings when it was presented with a substantial change of circumstance that cast doubt on the competency finding. Its discussion with Rodas did not discharge this duty. A retrospective competency hearing cannot redress the error in this case because there is insufficient evidence to reliably determine Rodas’ mental competence at the time of his trial.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S237379.PDF
Case Name: People v. Morales (2018) 29 Cal.App.5th 471 , District: 6 DCA , Case #:H043837
Opinion Date: 11/27/2018 , DAR #: 11244
There was sufficient evidence of defendant’s lewd intent based on other incidents involving the same minor and on the defendant’s coercive threats immediately after the touching. Morales was convicted by a jury of four counts of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)), one count of committing a forcible lewd act on a child under 14 (Pen. Code, § 288, subd. (b)), and various other sex offenses. The jury also found true an allegation that Morales had committed sexual offenses against multiple victims (Pen. Code, § 667.61, subd. (e)(4)). The court sentenced Morales to a term of 75 years to life consecutive to a 6-year determinate term. He appealed, challenging the sufficiency of the evidence of lewd intent as to two acts supporting convictions for section 288, subdivision (a). Held: Affirmed in part, remanded for resentencing. To determine whether a particular touching is prohibited as a lewd or lascivious act, a factfinder may infer the defendant’s intent from all the relevant circumstances, including his extrajudicial statements, other acts of lewd conduct admitted or charged in the case, the relationship of the parties, and any coercion, bribery, or deceit used to obtain the victim’s cooperation. (People v. Martinez (1995) 11 Cal.4th 434, 445.) Here, the court found that while defendant’s conduct in touching the minor as he pushed her on the swing did not by itself disclose a lewd intent, the fact that on another occasion he touched her thigh and reached toward her private parts, stopping only when she started crying, was indicative of his sexual intent on all three occasions. Defendant’s coercive threat to harm her family if she told anyone confirmed his own understanding of the illicit nature of the touching. The court affirmed the judgment of conviction for two counts of section 288, subdivision (a).
There was sufficient evidence of force used to accomplish the prohibited act beyond what was inherent in the act itself. Morales argued that there was insufficient evidence of force to support the forcible lewd act count under section 288, subdivision (b) against Jane Doe 1. The Court of Appeal disagreed. A defendant uses force if the prohibited act is facilitated by the defendant’s use of physical violence, compulsion, or constraint in addition to the physical contact which is inherent in the prohibited act. Acts of grabbing, holding, and restraining that occur in conjunction with the lewd acts themselves are sufficient to support a finding that the lewd act was committed by means of force. (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005.) The court found that the minor’s testimony amply established that defendant used force to facilitate the lewd act rather than merely incidentally touching her in the course of the lewd act. The defendant’s picking up, holding, and restraining of the minor to facilitate his lewd act was substantial evidence of the requisite force. However, it was undisputed at trial that the two section 288 counts against Jane Doe 1 were based on a single act. The section 288, subdivision (a) conviction cannot be upheld as it is a lesser included offense of the section 288, subdivision (b) count. The superior court was directed to strike the section 288, subdivision (a) count involving Jane Doe 1.
The trial court properly imposed a life term for the section 288, subdivision (a) count because the language in the accusatory pleading was sufficient to show that defendant was ineligible for probation. Morales argued that the trial court erred in imposing a life term for one of the section 288, subdivision (a) counts because the offense occurred in 2004, before section 667.61 (known as the One Strike law) was amended to apply to all section 288, subdivision (a) offenses. The 1998 version of section 667.61, which was in effect in 2004, provided that the law applied to a violation of section 288, subdivision (a) unless the defendant qualifies for probation under section 12033.066, subdivision (c). The 1997 version of section 12033.066 required that the existence of any fact that would make a person ineligible for probation shall be alleged in the accusatory pleading and either admitted by the defendant or found to be true by the jury. The accusatory pleading in this case did not allege that Morales was ineligible for probation but it did allege the “fact that would make a person ineligible for probation.” That is, the information alleged that defendant “has been convicted in the present case of committing an offense against more than one victim.” This allegation was found true by the jury. Therefore, Morales fell within section 667.61 as it read in 2004 and could properly be sentenced to a life term for the section 288, subdivision (a) conviction.
The trial court correctly imposed multiple life terms under Penal Code section 667.61, but the current version of the statute requires a life term of 25 years to life for some of the lewd acts, not 15 years to life. The court imposed one life term for the forcible lewd act count against Jane Doe 1, two life terms for the two lewd act counts against Jane Doe 2, and one life term for the lewd act count against Jane Doe 3. The life terms were 15 years to life. Morales argued that the trial court erred in imposing multiple life terms under section 667.61 because the statute authorizes only one life term for qualifying offenses against more than one victim on multiple separate occasions. The Court of Appeal disagreed, concluding that every court that has ever considered this issue has rejected the contention that section 667.61 does not permit multiple life terms to be imposed based on the multiple-victims circumstance. The 1998 version of section 667.61, in place at the time of the offense against Jane Doe 3, mandated a term of 15 years to life for Morales’ lewd act on Jane Doe 3. It provided that a life term “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the [life term] shall be imposed on the defendant once for each separate victim.” The current version of section 667.61, which was in effect when defendant committed the counts against Jane Doe 1 and Jane Doe 2, does not contain this language and instead provides “[a]ny person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life.” (Pen. Code, § 667.61, subd. (j)(2).) On appeal, Morales conceded the trial court’s imposition of 15-year-to-life terms for the three lewd act counts against Jane Doe 1 and Jane Doe 2, rather than 25-year-to-life terms, was an unauthorized sentence. The case was remanded for resentencing.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H043837.PDF
Case Name: People v. Fish (2018) 29 Cal.App.5th 462 , District: 2 DCA , Division: 6 , Case #: B290108
Opinion Date: 11/27/2018 , DAR #: 11241
Where a valid search warrant authorizes a blood draw from a defendant arrested for DUI, and the circumstances of the blood draw are typical and routine, the defendant bears the burden of showing the blood was not drawn in a “reasonable manner.” Fish was arrested for driving under the influence (DUI). His blood was drawn at a hospital pursuant to a valid search warrant. The trial court granted Fish’s motion to suppress the results of the blood test because the prosecution failed to prove the blood was drawn in a reasonable manner. The prosecution appealed to the appellate division of the superior court, which reversed. The Court of Appeal granted a transfer petition. Held: Affirmed. When blood is drawn from a person arrested for DUI, the Fourth Amendment requires that the blood be drawn in a reasonable manner. The U.S. Supreme Court has not determined which party has the burden of proof when the defendant claims that a warrant was improperly executed. However, it has expressed a strong preference for warrants and there is a presumption that a search warrant and the affidavit supporting the search warrant are valid. Under California case law, the defendant bears the burden of proof that a search went beyond the scope of the warrant. After analyzing relevant case law, the Court of Appeal here concluded that there was no unfairness in requiring Fish to assume the burden of presenting evidence that the blood was drawn in an unreasonable manner, which he did not do. Fish’s blood was statutorily required to be drawn in a reasonable, medically approved manner (Pen. Code, § 1524, subd. (a)(13)), and there is a presumption that official duties have been regularly performed. (Evid. Code, § 664.) The blood draw occurred in a hospital in the presence of an officer. The circumstances of the blood draw were typical, routine, and not peculiarly within the government’s knowledge or control.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B290108.PDF
Case Name: People v. Caldwell (2018) 29 Cal.App.5th 180 , District: 1 DCA , Division: 3 , Case #: A148828
Opinion Date: 11/15/2018 , DAR #: 10935
The denial of a motion for a finding of factual innocence (Pen. Code, § 1485.55) is an appealable order. In 1990, Caldwell was convicted of second degree murder and attempted murder based on a drug deal gone bad. In 2009, he filed a petition for writ of habeas corpus which in part challenged his conviction based on ineffective assistance of trial counsel. The trial court granted the petition. Because a prosecution witness had died since the initial trial and the trial court would not permit her recorded testimony to be introduced at a retrial, the prosecution dismissed the case. In 2015, Caldwell filed a motion for finding of actual innocence to support his claim with the California Victim Compensation Board. The motion was denied and Caldwell appealed. The prosecution moved to dismiss the appeal as from a nonappealable order, arguing that Penal Code section 1485.55 does not provide a right to appeal the denial of an actual innocence motion. Held: Order is appealable. The court in In re Anthony (2015) 236 Cal.App.4th 204, concluded the granting of a motion for finding of actual innocence is not appealable by the prosecution. This decision is supported by the provisions of Penal Code section 1238, which strictly limit the prosecution’s right to appeal. However, Penal Code section 1237, subdivision (b) affords defendants broad rights of appeal where the trial court’s order affects a substantial right. The California Supreme Court regularly allows defendants to appeal notwithstanding the absence of a specific appellate mechanism in the statute under which a defendant seeks relief and liberally interprets section 1237, subdivision (b)’s requirement that the challenged order must affect the defendant’s substantial rights. As Caldwell is pursuing a substantial right in asking the appellate court to reconsider his factual innocence claim, the denial of his motion is appealable. [Editor’s Note: In an unpublished part of the opinion, the Court of Appeal concluded the trial court properly denied Caldwell’s factual innocence motion.]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A148828M.PDF
Case Name: Williams v. Filson (9th Cir. 2018) 908 F.3d 546 , Case #: 13-99002
Opinion Date: 11/9/2018 , DAR #: 10843
Federal habeas petitioner was entitled to equitable tolling where he relied on the unsettled state of the law related to the relation-back standard in deciding when to file his amended petition. In 1983, Williams pleaded guilty to murder and a three-judge panel sentenced him to death. In January 1998, he filed a federal writ petition, which he amended in 1999 and again in May 2002. In 2003, the federal court stayed proceedings while Williams pursued additional state claims. In 2007, having exhausted his state claims, he reopened his federal proceeding, adding new issues. The district court held the new claims barred by AEDPA or procedurally defaulted, and that Williams was not entitled to equitable tolling. Williams appealed. Held: Reversed in part. To assert equitable tolling, a habeas petitioner must show: (1) that he was diligently pursuing his rights, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Here, the state did not contest that Williams diligently pursued his rights. Further, he relied on the unsettled state of the law when he assumed that his new claims in his amended petitions related back to those asserted in his initial petition. Federal law allows an amendment to a pleading to “relate back” to the original pleading when the amendment asserts a claim or defense that “arose out of the conduct, transaction or occurrence set out . . . in the original pleading.” (Fed. Rules Civ.Proc., rule 15.) When the Supreme Court limited the scope of the relation-back standard in Mayle v. Felix (2005) 545 U.S. 644, it was too late for Williams to cure any timeliness issues that arose as a result. His “reasonable assumption” that the unsettled state of the law allowed him to assert additional claims under Rule 15 constituted an extraordinary circumstance that prevented him from filing a timely petition, entitling him to equitable tolling.
The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/09/13-99002.pdf
Case Name: Maquiz MacDonald v. Hedgpeth (9th Cir. 2018) 907 F.3d 1212 , Case #: 16-55240
Opinion Date: 11/5/2018 , DAR #: 10689
Under AEDPA, there was no reasonable basis on which the California courts could have rejected petitioner’s argument that the gang enhancement was unsupported by sufficient evidence. Maquiz was convicted of multiple counts of robbery with gang and gun use enhancements. He challenged the gang enhancement tied to one of the robberies in which he acted alone. After exhausting state remedies, Maquiz filed a federal habeas petition, which the district court denied. He appealed. Held: Reversed and remanded. When a federal habeas petitioner challenges the sufficiency of the evidence used to obtain a state conviction on federal due process grounds, the federal court must determine whether the decision of the state court reflected an unreasonable application of Jackson v. Virginia (1979) 443 U.S. 307, 319 to the facts of the case. Under Jackson, after viewing the evidence in the light most favorable to the prosecution, the court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. To sustain an enhancement under Penal Code section 186.22, subdivision (b)(1), the prosecution must prove beyond a reasonable doubt that (1) the defendant committed a felony for the benefit of a criminal street gang, and (2) the defendant did so with the specific intent to promote, further, or assist in any criminal conduct by gang members. Here, evidence at trial showed only that Maquiz committed the robbery alone, hiding his face, and without wearing or displaying gang symbols, signs, or colors. There was no evidence that the victims were aware of Maquiz’s gang association or that Maquiz discussed the robbery or shared the $70 proceeds of the crime. The only evidence relevant to the gang enhancement came from an officer, and the court determined the officer’s opinions and conclusions were purely conclusory and factually unsupported. Applying AEDPA’s deferential standard of review, the court concluded the evidence was insufficient to support the gang enhancement under Jackson.
The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/05/16-55240.pdf
Case Name: People v. Garcia (2018) 28 Cal.App.5th 961, District: 4 DCA , Division: 2 , Case #: E068490
Opinion Date: 11/1/2018 , DAR #: 10684
Trial court did not err by excluding the testimony of a defense eyewitness identification expert where the identification was substantially corroborated by evidence giving it independent reliability. Opinion on rehearing. A jury convicted Garcia of residential burglary. He admitted having a strike prior/prior serious felony conviction. On appeal, he argued the trial court abused its discretion and denied his due process right to present a defense by refusing to allow a defense expert to testify concerning the reliability of eyewitness identifications. Held: Affirmed. Expert testimony is admissible on subjects that are sufficiently beyond common experience when the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a)). A trial court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the probability its admission will consume undue time, mislead the jury, or confuse the issues. (Evid. Code, § 352.) However, it is error to exclude eyewitness expert evidence when an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability. Here, the trial court did not abuse its discretion by excluding the expert eyewitness testimony. Ample other evidence substantially corroborated the identification of defendant, thereby reducing the probative value of the defense expert’s testimony. Defendant’s vehicle was reported at the scene of the burglary. The eyewitness also identified defendant’s good friend, who was placed at the scene of the crime by his ankle monitor, and who admitted to his involvement in the burglary. During jail calls, defendant expressed concern that his fingerprints may be found at the house and tried to set up an alibi. In addition, the jury was instructed on the many factors that may affect eyewitness identification. (CALCRIM No. 315.) Lastly, given the totality of the evidence, any error in excluding the testimony was harmless.
The case must be remanded to allow the trial court to consider whether to strike defendant’s five-year prior serious felony enhancement. On September 30, 2018, the Governor signed SB 1393, which grants trial courts the discretion to strike a prior serious felony enhancement, effective January 1, 2019. (See Pen. Code, §§ 667, subd. (a), 1385.) After SB 1393 was signed, Garcia petitioned for rehearing, arguing that the matter must be remanded for resentencing so the trial court may exercise its discretion to dismiss or strike his prior serious felony enhancement. The Court of Appeal granted rehearing and agreed with Garcia. When an amendatory statute lessens the punishment for a crime or vests in the trial court the discretion to impose a lesser penalty than under the old law, it is reasonable to infer, absent evidence to the contrary, that the Legislature intended the new law to retroactively apply to all cases not final when the statute becomes effective. It was not likely that Garcia would exhaust all his appeal rights by January 1, 2019. Therefore, the case was remanded for resentencing after the effective date of the law.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E068490.PDF
Case Name: People v. Baldivia (2018) 28 Cal.App.5th 1071, District: 6 DCA , Case #:H043736
Opinion Date: 11/5/2018 , DAR #: 10750
Plea agreements contemplate changes in the law when the Legislature intended those changes to apply and such issues may be raised on appeal without a certificate of probable cause (CPC). Appellant committed several offenses when he was 17 years old and was charged with those crimes in criminal court. In May 2016, he pleaded guilty to two robberies, evading an officer, and admitted a gun use enhancement. He filed a notice of appeal and did not obtain a CPC. While his appeal was pending, Proposition 57 passed. This new law requires cases involving minors to be filed in juvenile court and a fitness hearing held before transfer to criminal court. In addition, SB 620 was enacted, granting trial courts discretion to strike gun use enhancements. On appeal defendant urged application of both new laws to his case. Held: Remanded for transfer hearing and, if necessary, a resentencing hearing. Generally, when a defendant enters into an agreed-term plea, a CPC is required to challenge the sentence because this is in essence a challenge to the validity of the plea. However, defendants may generally obtain retroactive relief from new potentially ameliorative statutes if their cases are not yet final. The latter line of authority prevails in these cases, because plea agreements are deemed to incorporate changes in the law. The California Supreme Court concluded the “inference of retroactivity” meant that Proposition 57’s transfer hearing provisions applied “to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) In addition, SB No. 620 was enacted after Penal Code section 1237.5 (the CPC requirement) and should therefore be given priority. Further, SB 620 expressly contemplated that it would have retroactive effect. Since these laws are retroactive, their changes apply to all nonfinal cases, including all preexisting plea agreements. Therefore, appellant’s issues on appeal do not concern the validity of his plea and do not require a CPC.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H043736.PDF
Case Name: People v. Henry (2018) 28 Cal.App.5th 786 , District: 6 DCA , Case #:H044626
Opinion Date: 10/29/2018 , DAR #: 10525
Felony false personation conviction reversed where defendant’s conduct constituted a violation of a more specific misdemeanor statute. Henry was convicted by a jury of felony false personation (Pen. Code, § 529, subd. (a)(3)) after he gave a friend’s name to a police officer at a traffic stop and signed a citation with that name. Henry appealed, arguing that his conviction violated the Williamson rule (In re Williamson (1954) 43 Cal.2d 651), which prohibits prosecution under a general statute when the conduct at issue is covered under a more specific statute. Held: Reversed and remanded. The Williamson rule applies when (1) each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute. When a special statute can be violated in two different ways, one of which does not violate the general statute, the reviewing court should consider only if the present conduct at issue would commonly violate the general statute. Here, Henry argued that his conduct should have been charged as a misdemeanor under Vehicle Code section 40504, subdivision (b), which criminalizes the signing of a false or fictitious name on a promise to appear for the traffic citation. Section 529, subdivision (a)(3), makes criminal the act of falsely impersonating another in a way that would make that person liable to any suit or prosecution. Vehicle Code section 40504, subdivision (b) can be violated by signing either a false or a fictitious name. The signing of a fictitious name would not constitute a violation of Penal Code section 529, subdivision (a)(3). However, because Henry falsely gave the name of a real person, his conduct violated both the special and general statutes. In reviewing the legislative history of Vehicle Code section 40504, the court determined that the Legislature intended to create an exception to the felony punishment as stated under the more general statute, and therefore the Williamson rule applied.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H044626.PDF
Case Name: People v. Acosta (2018) 28 Cal.App.5th 701 , District: 6 DCA , Case #:H045175
Opinion Date: 10/25/2018 , DAR #: 10492
Trial counsel was not ineffective for failing to request a hearing on defendant’s ability to pay sexual offender fines; however, trial courts are encouraged to independently inquire about defendant’s ability to pay. Acosta was convicted of committing a lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a)) and contacting a minor with the intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a)). At sentencing, the court imposed two fines pursuant to Penal Code section 290.3 without making any findings about Acosta’s ability to pay the fines. Counsel did not ask for a hearing and did not object to their imposition. Acosta appealed, arguing that his case should be remanded for a hearing on his ability to pay the fines because his counsel was constitutionally ineffective for failing to object to the fines. Held: Affirmed. Section 290.3 requires a defendant be fined for certain sex offenses (including sections 288 and 288.3) “unless the court determines that the defendant does not have the ability to pay the fine.” (Pen. Code, § 290.3, subd. (a).) In order to demonstrate that an attorney provided ineffective assistance of counsel, appellant must establish that his counsel’s performance was deficient and that appellant suffered prejudice due to the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Here, the court found it was possible counsel had made a tactical decision not to object to particular fines because it was not in the defendant’s interest to do so. Counsel could have determined that he would be unable to establish that Acosta had no ability to pay based on his age, work history, and intended plan to pursue employment after serving his sentence. However, in light of these considerations and the reality that many felony defendants are indigent, the Court of Appeal urged trial courts to inquire sua sponte into a defendant’s financial circumstances before imposing a sexual offender fine.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H045175.PDF
Other Published Decisions With Recent Supreme Court Actions
On 10/30/2018, the First District, Division One issued a published decision in People v. Grzymski (2018) 28 Cal.App.5th 799 (A153015). On 2/13/2019, the California Supreme Court granted review (case number S252911) and ordered briefing deferred pending decision in People v. McKenzie (2018) 25 Cal.App.5th 1207, review granted 11/20/2018 (S251333/F073942), which presents the following issue: When is the judgment in a criminal case final for purposes of applying a later change in the law if the defendant was granted probation and imposition of sentence was suspended?
The Court of Appeal’s opinion in Grzymski is available here:
During October 29, 2018, to December 2, 2018, the California Supreme Court granted review in the following cases:
When is the judgment in a criminal case final for purposes of applying a later change in the law if the defendant was granted probation and imposition of sentence was suspended? (People v. McKenzie (2018) 25 Cal.App.5th 1207, review granted 11/20/2018 (S251333/F073942).)
Did the prosecutor improperly vouch for the testifying correctional officers by arguing in rebuttal that they had no reason to lie, would not place their careers at risk by lying, and would not subject themselves to possible prosecution for perjury? (People v. Rodriguez(2018) 26 Cal.App.5th 890, review granted 11/28/2018 (S251706/F073594).)
(1) Can the prosecution charge theft and shoplifting of the same property, notwithstanding Penal Code section 459.5, subdivision (b), which provides that “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property”? (2) If not, was trial counsel ineffective for failing to object to the theft charge? (People v. Lopez (2018) 26 Cal.App.5th 382, review granted 11/20/2018 (S250829/F074581).)
On 11/28/2018, the court directed the parties in People v. Lopez (2018) 26 Cal.App.5th 382, review granted 11/20/2018 (S250829/F074581) to brief the following issues in addition to the issues stated in the order granting review. In briefing these additional issues, the parties are to assume, solely for the sake of argument and without prejudice to any contrary argument, that Penal Code section 459.5, subdivision (b), prohibits the prosecution from charging both shoplifting and theft of the same property under any circumstances. (1) Did defendant forfeit the argument under Penal Code section 459.5 by failing to object to the prosecution’s charging both shoplifting and theft? (2) If defendant had objected, what should the trial court’s ruling have been? Might it have ordered the prosecution to choose between a shoplifting charge and a theft charge? If so, and given the potential difficulty in proving the intent required for shoplifting, might the prosecution have chosen to charge only petty theft with a prior? In that event, would defendant have been prejudiced by the failure to object? (3) Was petty theft with a prior a lesser included offense of shoplifting under the accusatory pleading test? If so, could the trial court have instructed the jury on shoplifting as the charged offense and on petty theft as a lesser included offense? (See People v. Reed (2006) 38 Cal.4th 1224, 1227-1231.) If not, and assuming defendant had objected to charging both crimes, could the prosecution have moved to amend the charging document to make the theft charge a lesser included offense of shoplifting under the accusatory pleading test? If that had occurred, could the trial court have instructed on shoplifting as the charged offense and on petty theft as a lesser included offense? In that event, would defendant have been prejudiced by the failure to object?
Grant and Hold
People v. Stevenson (2018) 25 Cal.App.5th 974, review granted 11/14/2018 (S251071/A143337, A143415, A143477). Briefing deferred pending decision in People v. Canizales (2014) 229 Cal.App.4th 820, review granted 11/19/2014 (S221958/E054056, which presents the following issue: Was the jury properly instructed on the “kill zone” theory of attempted murder?
For a list of cases with unpublished decisions where review has been granting with briefing deferred, see the California Supreme Court’s Summary of Cases Accepted and Related Actions During Week of October 29, 2018: http://www.courts.ca.gov/documents/ws102918.pdf.
For a list of cases with unpublished decisions where review has been granting with briefing deferred, see the California Supreme Court’s Summary of Cases Accepted and Related Actions During Week of November 12, 2018: http://www.courts.ca.gov/documents/ws111218.pdf.
For a list of cases with unpublished decisions where review has been granting with briefing deferred, see the California Supreme Court’s Summary of Cases Accepted and Related Actions During Week of November 19, 2018: http://www.courts.ca.gov/documents/ws111918.pdf.
For a list of cases with unpublished decisions where review has been granting with briefing deferred, see the California Supreme Court’s Summary of Cases Accepted and Related Actions During Week of November 26, 2018: http://www.courts.ca.gov/documents/ws112618.pdf.
The U.S. Supreme Court granted certiorari in the following case:
Petitioner Curtis Flowers has been tried six times for the same offense in Mississippi state court. Through the first four trials, prosecutor Doug Evans relentlessly removed as many qualified African American jurors as he could. He struck all ten African Americans who came up for consideration during the first two trials, and he used all twenty-six of his allotted strikes against African Americans at the third and fourth trials. (The fifth jury hung on guilt-orinnocence and strike information is not in the available record). Along the way, Evans was twice adjudicated to have violated Batson v. Kentucky–once by the trial judge during the second trial, and once by the Mississippi Supreme Court after the third trial.
At the sixth trial Evans accepted the first qualified African American, then struck the remaining five. When Flowers challenged those strikes on direct appeal, a divided Mississippi Supreme Court reviewed Evans’ proffered explanations for the strikes deferentially and without taking into account his extensive record of discrimination in this case, and affirmed. Flowers then sought review here, asking: “Whether a prosecutor’s history of adjudicated purposeful race discrimination must be considered when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?” This Court responded by granting certiorari, vacating the Mississippi Supreme Court’s judgment, and remanding “for further consideration in light of Foster v. Chatman, 136 S. Ct. 1737 (2016).” Flowers v. Mississippi, 136 S.Ct. 2157 (2016).
On remand, a divided Mississippi Supreme Court again affirmed. Over three dissents, the state court majority emphasized deference to the trial court, and insisted both that the “[t]he prior adjudications of the violation of Batson do not undermine Evans’ race neutral reasons,” and that “the historical evidence of past discrimination . . . does not alter our analysis . . .” Flowers v. Mississippi, 240 So.3d 1082, 1124 (Miss. 2018). The state court majority then repeated, nearly word-for-word, its previous, history-blind evaluation of Evans’ strikes.
The court granted the petition for certiorari limitied to the following question: Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986) in this case. (Flowers v. State (Miss. 2017) 240 So.3d 1082, cert. granted 11/2/2018 (17-9572).)