1

Filed 12/22/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TOMMIE LEE KINDALL,

Defendant and Appellant.

C078996

(Super. Ct. No. 14F05826)

APPEAL from a judgment of the Superior Court of Sacramento County, 

Geoffrey A. Goodman, Judge. Affirmed as modified.

William W. Lee, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, 

Angelo S. Edralin, Deputy Attorney General, for Plaintiff and Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of Parts I and III.
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A jury found defendant Tommie Lee Kindall guilty of felony battery causing 

serious bodily injury, misdemeanor assault, and misdemeanor domestic violence. (Pen. 

Code, §§ 240, 243, subds. (d) & (e)(1).)1 After the verdicts, but before a court trial on the 

prior prison term enhancements (§ 667.5, subd. (b)), another trial court reduced three of 

defendant‟s alleged prior convictions to misdemeanors under Proposition 47, the Safe 

Neighborhoods and Schools Act (the Act). 

The trial court presiding over defendant‟s case (Goodman, J.) subsequently found 

after a court trial that defendant had served seven separate prior prison terms, three of 

which were based on the three drug convictions (Health & Saf. Code, § 11350, subd. (a)) 

that had already been reduced. The court sentenced defendant to the upper term of four 

years for the felony battery count, and enhanced the sentence by seven years for the seven 

prior prison terms. The court ordered defendant to serve nine years in county jail, 

followed by two years of supervised release. Defendant timely appealed.2 

On appeal, defendant contends (1) his trial attorney was ineffective because he did 

not object to prosecutorial misconduct in argument; (2) the three prior prison term 

enhancements based on sentences for felonies previously reduced to misdemeanors 

should have been stricken; and (3) the restitution fine is incorrectly set forth in the 

abstract of judgment. The People agree with the latter point, and so do we. 

As we explain in the published portion of our opinion, we also agree with 

defendant‟s second point, because at the time of the three reduced priors‟ adjudication as 

prior prison terms, the charges on which the prison terms were based had already been 

 

1

 Further undesignated statutory references are to the Penal Code.

2

 Defendant‟s attorney requested a certificate of probable cause regarding the prison 

priors, although defendant had not pleaded guilty or admitted them. Thus, there was no 

basis for counsel‟s request. (Cf. § 1237.5; People v. Meals (1975) 49 Cal.App.3d 702, 

708.) Accordingly, the trial court properly declined to act on it.
3

reduced to misdemeanors for all purposes. Simply put, these three prior convictions were

no longer previous felony convictions at the time the trial court adjudicated them as such 

in order to find the prior prison term allegations true. 

We shall modify the judgment and affirm, directing the trial court to amend and 

correct abstract of judgment.3

FACTS AND PROCEDURE

We briefly summarize the evidence as agreed by the parties. On September 2, 

2014, defendant and his cohabitant, both intoxicated, argued and he kicked her in the 

back and then hit her with a hammer. She testified at trial that she had grabbed the 

hammer and her injuries were accidentally self-inflicted, but she had made contrary 

statements implicating defendant both to the police and to medical personnel, and there 

was evidence defendant communicated to her while in custody to encourage her to testify 

in his favor. The defense was based not only on the victim‟s in-court testimony, but also 

the testimony of a witness who testified he saw the victim trip and fall, causing her to hit 

herself with a hammer, testimony of a victim‟s advocate that the victim claimed she hurt 

herself, and defendant‟s testimony denying he hurt her. Defendant conceded he had been 

convicted of a misdemeanor when he had accidentally hit the victim in the past, claiming 

he had been “railroaded” into admitting a crime although he had not done anything wrong 

during that incident; he was impeached with two felony convictions. 

The victim characterized the prior uncharged incident in August 2013 as 

“[a]nother night of drunken anger and stupidity.” She denied defendant punched her in 

the face several times, but admitted she had called 911, and identified photographs 

 

3

 The trial court erroneously stayed imposition of sentence on the misdemeanor counts, 

instead of imposing and then staying execution of sentence on those counts, as required 

by section 654. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1472.) 

However, the parties raise no issue about this mistake, thus we do not address it further.
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depicting her injuries at that time. She claimed she and defendant had been struggling 

over a bicycle and its handlebars struck her. In the uncharged case, she had written a 

letter recanting her claim that defendant hit her. 

A victim advocate, with a master‟s degree in counseling and a bachelor‟s degree in 

psychology, testified about a “cycle of violence” consisting of a building of tension in a 

relationship, an act of violence, and a “honeymoon phase” where the parties reconcile, 

and a “lot of times there is denial and minimizing” and people will “assume that it won‟t 

happen again.” 

DISCUSSION

I

Ineffective Assistance of Counsel 

Acknowledging that his trial attorney failed to object to purported prosecutorial 

misconduct during closing argument, defendant claims the misconduct claim is not 

forfeited because his attorney was ineffective in failing to object. 

“ „To preserve a claim of prosecutorial misconduct for appeal, a defendant must 

make a timely and specific objection and ask the trial court to admonish the jury to 

disregard the improper argument.‟ ” (People v. Linton (2013) 56 Cal.4th 1146, 1205.) A 

court will excuse a defendant‟s failure to object only if an objection would have been 

futile or if an admonition would not have cured the harm caused by the misconduct. 

(People v. Hill (1998) 17 Cal.4th 800, 820.) Here, neither exception to the rule requiring 

a timely objection to purported misconduct in argument applies.

To prevail in showing ineffectiveness of counsel, a defendant must show his 

attorney acted below the standards of professional competence and that there is a 

reasonable probability he would have obtained a more favorable result in the absence of 

counsel‟s failings, that is, if counsel had objected and sought admonitions. (See People v. 

Ledesma (1987) 43 Cal.3d 171, 217-218.) But an attorney need not make every arguable 

objection and a trial attorney does not have the luxury of the appellate attorney to 
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research each possible issue. (See generally People v. Eckstrom (1974) 43 Cal.App.3d 

996, 1000-1003.) And where the record shows trial counsel‟s actions reflected 

reasonable tactical choices, defendant‟s claims of ineffective counsel are not cognizable 

on direct appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) 

During argument, the prosecutor began by explaining domestic abuse can be 

complicated because a victim may continue to love the abuser and hope things will 

change, and cited the victim herein as “a textbook example of the cycle of violence that 

the victim advocate . . . talked about.” He continued by pointing out that in the prior 

incident, after defendant punched the victim in the face, she recanted and claimed her 

face was hit by a bicycle by accident, and argued she similarly recanted in the current 

case. “The first time involved punches to the face. The second time is the hammer to the 

eye. Who knows what happens the third and fourth and fifth time. [The victim] deserves 

our legal protection whether she wants it or not.” (Italics added.) Later, when discussing 

the instruction about the uncharged incident, the prosecutor stated: “So, in plain terms, 

what that means is, he did it before, he’s likely to do it again. It‟s a pattern. It‟s about 

dominance and control, and through these jail calls and through these emails you see that 

dominance and control coming through loud and clear. I‟ll do whatever you want me to 

do.” (Italics added.) 

On appeal, defendant argues these last two passages, particularly the italicized 

portions, are improper speculation about future violence, references to facts not in 

evidence, and appealing to the jury‟s passion about community safety and what future 

harm might befall the victim if defendant were not convicted by this jury. We disagree 

that the comments were improper.

The first comment was accurately tethered to the facts of the case, showing two 

recantations by the victim due to her continued love for an abusive companion, and 

emphasized that the jury‟s duty was not to adhere to her wishes that defendant not be 
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punished, but to apply the law to the facts, thus, giving her “legal protection” even if she 

was willing to continue being victimized. 

The second comment accurately described the effect of the court‟s instruction on 

the uncharged act evidence. The trial court gave the pattern instruction on the limited use 

of the prior domestic violence conviction (CALCRIM No. 852), in part instructing that if 

the jury found the prior domestic violence occurred, “you may, but are not required to, 

conclude from that evidence that the defendant was disposed or inclined to commit 

domestic violence; and, based on that decision, also conclude that the defendant was 

likely to commit and did commit the charges in this case. [¶] If you conclude that the 

defendant committed the uncharged domestic violence, that conclusion is only one factor 

to consider along with the other evidence. It is not sufficient by itself to prove that the 

defendant is guilty of the charges in this case. The People must still prove each element 

of every charge beyond a reasonable doubt.” The court also gave an abbreviated 

admonition about the evidence before it was presented to the jury, again emphasizing: 

“You cannot convict the defendant of the current charges simply because he did some 

similar thing before.” 

The prosecutor‟s second set of challenged comments argued that the jury could 

infer that defendant had a propensity to hit the victim and therefore did so on this 

occasion. The argument was not that the jury should convict defendant to protect society 

even if the jury did not find there was sufficient evidence to support the current charge.

Thus the comments were appropriate argument. Further, even if defendant‟s trial 

counsel were inclined to object, counsel could well conclude that objections to either of 

these passages would be futile, or even worse, might highlight weaknesses in the defense 

case. Instead, in reply to the prosecutor‟s argument, defense counsel emphasized the 

victim‟s drunkenness on both occasions, and her lack of credibility, arguing she made 

false allegations in 2013 and in the present incident. Counsel argued that defendant was 

the victim of the cycle of violence, based on testimony he had a disability and was 
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financially dependent on the victim. These tactics were effective, as the jury acquitted 

defendant of more serious charged offenses of assault with a deadly weapon (the 

hammer) and domestic violence with an allegation of infliction of great bodily injury. 

(§§ 245, subd. (a)(1), 273.5, 12022.7, subd. (e).) 

The record on appeal does not establish ineffectiveness of trial counsel.

II

Claim of Sentencing Error

Defendant contends that because the felony drug charges underlying three of his 

prior prison terms had been redesignated as misdemeanors under Proposition 47 before 

the priors were adjudicated, he should not have been subject to additional punishment for 

those three prior prison terms. (§ 667.5, subd. (b).) He contends that Proposition 47 not 

only entitled him to reduction of those convictions to misdemeanors, but also precluded 

the use of the prison terms based thereon to enhance the sentence for his current felony.

On the specific timeline presented by this case, we agree. Although defendant‟s 

current crime of felony battery was committed prior to the reduction of the felony 

offenses used to enhance his sentence to misdemeanors, which the People argue is 

sufficient to qualify him for the enhancement, by the time the enhancements at issue were

adjudicated, the offenses were misdemeanors for all purposes. The delay in the second 

portion of the bifurcated trial until after the priors at issue were reduced resulted in the 

absence of one of the essential elements of a prior prison term finding--that defendant 

“was previously convicted of a felony.” (People v. Tenner (1993) 6 Cal.4th 559, 563.) 

As we will explain, these three prior convictions were no longer previous felony 

convictions at the time the trial court adjudicated them as such. Instead, they were 

previous misdemeanor convictions, for all purposes going forward.
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Proposition 47 in part provides that persons who have completed felony sentences 

for certain offenses may apply to have their convictions “designated as misdemeanors.” 

(§ 1170.18, subd. (f).) In such cases, the convictions “shall be considered a misdemeanor 

for all purposes.” (§ 1170.18, subd. (k).) Defendant properly invoked this provision.

In People v. Rivera (2015) 233 Cal.App.4th 1085, the appellate court addressed 

whether Proposition 47 deprived it of jurisdiction in a case where a felony conviction was 

later designated a misdemeanor or where the defendant was resentenced as a 

misdemeanant under the Act. (Id. at p. 1089.) Rivera found that section 1170.18, 

subdivision (k), which parallels the language from section 17 regarding the reduction of 

wobblers to misdemeanors, should be interpreted in the same way as being prospective. 

(Rivera, at p. 1100.) Rivera accordingly concluded that the felony status of an offense 

charged as a felony did not change after Proposition 47 was passed, thereby conferring 

jurisdiction on the Court of Appeal. (Id., at pp. 1094-1095, 1099-1101.) Although 

Rivera addressed section 1170.18, subdivision (k) in a different context than in this case, 

its retroactivity analysis is sound: reduction of a felony to a misdemeanor does not apply 

retroactively.

Here, however, because the very adjudication of the prior convictions was 

delayed, the instant case was in a very different procedural posture. Here, at the time the 

trial court was called upon (in the court trial on the priors) to find the elements of the 

enhancement, it could no longer properly find that defendant had sustained the prior 

felony convictions alleged. Instead, the three reduced felonies were misdemeanors for all 

purposes. Simply put, at the time of the charged priors‟ adjudication, defendant had 

sustained misdemeanor convictions for the three drug charges at issue rather than 

felonies. There was no need to “look back” and read any retrospective effect into the 

Proposition 47 reductions; there was only the need to acknowledge the reductions going 

forward, as the statute requires through its “for all purposes” language. 
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Defendant relies in part on People v. Park (2013) 56 Cal.4th 782, in which our 

Supreme Court held that a felony conviction reduced to a misdemeanor under section 17, 

subdivision (b) could not subsequently be used to support a prior serious felony 

enhancement under section 667, subdivision (a). (Park, at p. 798.) Section 17 contains 

the same “misdemeanor for all purposes” language as section 1170.18, subdivision (k). 

As the People point out, Park did not involve a felony reduced to a misdemeanor after 

the present crime had been committed, and it distinguished that scenario in clear terms: 

“There is no dispute that, under the rule in [prior California Supreme Court] cases, [the] 

defendant would be subject to the section 667[, subdivision] (a) enhancement had he 

committed and been convicted of the present crimes before the court reduced the earlier 

offense to a misdemeanor.” (Park, at p. 802.) The People argue that because defendant 

in this case committed his current felony before any of his prior convictions were reduced 

to misdemeanors, applying the reductions to eliminate the corresponding prior prison 

term enhancements would be an impermissible retroactive application of Proposition 47. 

As we have explained, the procedural posture of this case is different than Park; 

indeed, it is different than any of the cases to which the parties have called our attention. 

However, we find Park instructive in the situation we find ourselves, because here, like 

Park, three of defendant‟s prior convictions which were no longer previous felony 

convictions were construed as felonies going forward merely because they were felonies 

in the past. Park instructs that this “once a felony, always a felony” interpretation cannot 

be reconciled with the “misdemeanor for all purposes” language. The dicta from Park

cited above does not govern the instant case, because it does not speak to the adjudication

of the priors, and the required findings regarding the convictions at issue at the time the 

truth of the allegations is found, which is the question we must answer here. Similarly, 

the case on which the People rely in their briefing to describe a “trigger date” for the 

priors‟ application concerned an entirely different question than that at hand here. 
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People v. Weeks (2014) 224 Cal.App.4th 1045, concerned the definition of a “completed” 

prison term for purposes of a section 667.5, subdivision (b) application, and did not 

address the question of a prior‟s post-reduction adjudication. It provides no guidance 

here.

Although we agree with the People that “[t]he purpose of the prior prison term 

enhancement of section 667.5, subdivision (b), is „ “to punish individuals” who have 

shown that they are “hardened criminal[s] who [are] undeterred by the fear of prison,” ‟ ”

(People v. Abdallah (2016) 246 Cal.App.4th 736, 742), we do not ignore the plain 

language of the statute and its “for all purposes” requirement merely because the result of 

its application may not square with the apparent purpose of the enhancement. Nor are we

permitted to ignore the Tenner requirement that the People prove a (previous) felony 

conviction in order to prove a (current) prison prior. Once the felony priors at issue here 

were reduced to misdemeanors, they had ceased to exist as felonies for all purposes 

moving forward. Thus, when moving forward with the second half of the bifurcated trial, 

after the felonies‟ reduction, the People had to prove under Tenner that defendant was 

previously convicted of those felonies. But the now-reduced convictions at issue had 

ceased to exist as felonies; in their place were previous misdemeanor convictions, for all 

purposes. These purposes include the adjudication of charged enhancements.

Accordingly, we modify the judgment to strike the three prior prison terms 

erroneously imposed.

III

Correction to Abstract 

An abstract of judgment must fully and accurately capture all components of a 

defendant‟s sentence. (See People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. 

Zackery (2007) 147 Cal.App.4th 380, 389.) 

Here, the parties agree, and the record confirms, that there is a typographical error 

in the abstract. It states that the trial court ordered a restitution fine (§ 1202.4, subd. (b)) 
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of “$33300,” but on the record trial court ordered a fine of only $3,300. We will direct

the trial court to correct the abstract when it is amended to reflect the modification of 

judgment.

DISPOSITION

The judgment is modified to strike the three prior prison terms previously imposed 

as described by this opinion. As modified, the judgment is affirmed. The trial court is 

directed to prepare an amended and corrected abstract of judgment and to forward a 

certified copy thereof to the Sacramento County Sheriff‟s Department.

 /s/

Duarte, J.

We concur:

 /s/

Butz, Acting P. J.

 /s/

Renner, J.