P. v. Coleman

Filed 6/25/08 P. v. Coleman CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Willie B. Coleman III was convicted of felony robbery and assault under Penal Code sections 211 and 245, subdivision (a)(1),^[1]respectively, and his sentence for this conviction was enhanced pursuant to allegation under section 12022.7, subdivision (a), which the jury found to be true. In his appeal, defendant claims reversible error on the following grounds: (1) there was insufficient evidence identifying him as one the perpetrators of the robbery and assault; (2) there was insufficient evidence to find the enhancement allegation true as to him; (3) juror misconduct required a new trial; and (4) the trial court had no authority to order a restitution fine in favor of the victims employer, the Department of the Air Force (Air Force). As discussed below, we direct the challenged restitution fine to be vacated, affirm the appeal in all other respects.^[2]

Background

On September 16, 2003, at about 5:30 in the afternoon, Keith Vershay was driving along Pintail Drive in Suisan City, on his way home from his work at Travis Air Force Base. Because of the heat he had lowered the vehicles windows on both sides. An African-American male stepped in front of the vehicle, and Vershay slammed on the brakes. The man approached the vehicle, leaned through the open front passenger window, and made some remark as if accusing Vershay of trying to hit him. Vershay told the man he should stay out of the road. The man then took a jab at Vershay. At that same moment Vershay felt a pain in the back of his head and blacked out.

Other witnesses testified that several young adult African-American males converged on the driver side of the stopped vehicle, pulled Vershay out onto the street, and began beating and kicking Vershays face and head. Two witnesses, attempting to intervene, began shouting at the males, who then ran off.

Vershays injuries, in addition to surface lacerations, bruising, and a swollen eye, included seven facial fractures and two breaks in his lower jaw. Because of the fractures both cheekbones were caved in. The injuries required some four hours of surgery to set and wire his jaw and restore the cheekbones to their proper position. Ultimately Vershay was left with scarring and a loss of muscle control in lower right side of his face.

Vershay testified that his basketball shoes had been taken. Another witness stated that he saw one of the attackers remove something from a wallet he had taken from Vershays clothing, and toss the wallet onto the street before running from the scene.

An information filed January 6, 2004, charged defendant as one of those who had attacked Vershay. It alleged a felony violation of section 211 (second degree robbery), and a felony violation of section 245, subdivision (a)(1) (assault by means of force likely to produce great bodily injury). The information also included an enhancement allegation under section 12022.7, subdivision (a), to the effect that defendant personally inflicted great bodily injury in his commission of the robbery and assault. On January 12, 2004, defendant entered a plea of not guilty.

Defendants jury trial commenced over two years later, in March 2006. On March 20, 2006, the jury returned a verdict that found defendant guilty of both counts and found true the enhancement allegation.

Defendant filed a motion for new trial on May 3, 2006, on the ground of juror misconduct. At the sentencing hearing, held on June 13, 2006, the trial court denied defendants motion. The court went on to impose an upper term of five years imprisonment for defendants conviction under section 211 and a consecutive term of three years based on the enhancement allegation under section 12022.7. The court stayed imposition of sentence for defendants conviction under section 245, pursuant to section 654.^[3] Defendant filed a notice of appeal the following day. ( 1237, subd. (a).)

Discussion

A. Sufficiency of the Eyewitness Identification Evidence

Defendant contends the evidence was insufficient for the jury to find, beyond a reasonable doubt, that he was one of those who attacked Vershay. He notes that the only evidence linking him to the crime consisted of two photographic lineup identifications made some two months after the attackone by Vershay and the other by Laura Samuels, one of the witnesses who attempted to intervene. Defendant urges that the circumstances of both identifications had none of the earmarks of reliability recognized by the courts and testified to by the [defense] expert in this case. Rather, defendant asserts that a number of factors indicate the unreliability of the identifications: Vershay and Samuels were able to observe the attackers for a only a few, stressful moments, yet made their identifications after the passage of over two months and only after expressing their lack of confidence that they would be able to identify anyone; the photograph of defendant used in the photographic lineups did not correspond to details Vershay and Samuels had initially given the police when asked for descriptions immediately after the attack; and the police failed to administer the photographic lineups in a manner conducive to reliability, that is, the officer conducting the lineups knew which photograph was that of the suspect, he gave an admonition insufficient to offset the witnesses assumption that the lineup would include at least one suspect, and the lineups consisted of showing a group of six photographs rather than showing six photographs one at a time. In addition, defendant complains that the identifications were cross-racialVershay and Samuels are both Caucasian, whereas all the attackers had been described as African-American.

In making the foregoing objections, defendant essentially argues that the identifications on which the prosecution relied to establish him as one of the perpetrators were so unreliable as to be insufficient as a matter of law. In doing so he recapitulates, in detail, the strategy of his trial counsel, who at the outset argued to the jury that the case against defendant was one of mistaken identification, and who sought to undermine the identifications presented by the prosecution through both cross-examination and the direct testimony of a defense witness whom the court accepted as an expert in matters relating to the reliability of eyewitness identification.

Identification evidence is, however, for the jury to weigh. (People v. Cooks (1983) 141 Cal.App.3d 224, 278.) Having done so, the jury in this instance concluded that defendant was guilty beyond a reasonable doubt of the offenses with which he had been charged. Our task, in turn, is not to reweigh the evidence but to review the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence that would permit a reasonable trier of fact to reach the same conclusion of guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

Vershay testified that after he blacked out from a blow to the back of his head, the next thing he remembered was lying in the street with a paramedic standing over him. An ambulance took Vershay to a hospital, where he was given pain medication that made him very drowsy. Nevertheless, he attempted to give a police officer a description of the incident when she arrived at the hospital soon afterward. About two months after the attack, on November 20, 2003, another officer asked that Vershay view a photographic lineup of six young adult African-American males, each wearing the same type of shirt and having similar short hair. The officer admonished Vershay,^[4]and the latter stated he did not believe he would be able to recognize anyone, because the incident happened so fast and left him punch drunk. Nevertheless he identified defendants photograph in [a] matter of seconds, stating at the time that he [could not] say this is the guy who did it, but for some reason, he looks more familiar than anybody else.

At the trial, Vershay again identified the defendant and testified that he was confident that he recalled him being the person who was in front of the vehicle. As we have noted above, the man who stepped in front of the vehicle was the only assailant Vershay had an opportunity to observe before losing consciousness. He stated he didnt see anyone else. Vershay further testified that the man was about 10 feet from the front of the vehicle once it stopped, and that a face-to-face confrontation followed, during which Vershay, at least initially, observed the man not while excited, stressed, or angry so much as glad that [he] didnt injure anyone.

On cross-examination, Vershay stated that he had no clear recollection of statements he might have made to hospital personnel or the police officer who attempted to interview him soon after the event, reiterating that he had been under the effect of pain medication. When questioned on redirect and recross‑examination, Vershay twice repeated that he was confident of his identification of defendant and would not have testified otherwise.

When asked if he thought his memory of events had improved since his initial interview in the hospital, Vershay stated, I would say so. The police officer who conducted the interview stated that Vershay was very out of it when she first arrived at the scene, and that during the interview at the hospital he appeared to be in pain.

Samuels testified that she was driving with her 10-year-old daughter when she saw several men standing near the driver door of a vehicle, kicking and beating a man lying on the street. The attackers ran away after she parked her vehicle in a nearby lot and ran toward the scene, shouting that she was calling the police. Again, some two months later on November 20, 2003, an officer asked Samuels to view a photographic lineup. She remembered the officer gave her an admonishment and that she informed him she wasnt going to be able to recognize anyone, as her focus had been on the victim. She was surprised when she discovered pretty quick that she remember[ed] the defendant. At trial Samuels identified the photographic lineup she had viewedwhich had been composed in a manner similar to the above-described lineup Vershay viewed. She confirmed that it was defendants photograph she had recognized as one of Vershays attackers. She testified that she had recognized defendants photograph in the lineup because she had seen his face just before he ran away from the scene, and stated further that she had been confident of her identification of defendant at the time she made it.

The officer who administered the photographic lineups confirmed the identifications made by Vershay and Samuels, and read to the jury the standard admonishment he had given both eyewitnesses at the time.^[5]

During a brief rebuttal examination of Vershay and Samuels, both testified that they were confident of their ability to make an accurate cross-racial identification, in particular the identification of an African-American. Vershay based his confidence on long experience working with different races in the Air Force, and noted that when he had married, his best man at the ceremony had been an African-American. Samuels based her confidence on her experience as a human resources manager and the fact that she had black family, noting that her own children were half-black.

The expert defense witness discussed at length the factors that could adversely affect the reliability or accuracy of a given identification, including those factors, summarized above, that defendant emphasizes on appeal. In concluding his direct examination, however, the expert emphasized that he was discussing factors that make it either more or less probable that a given identification was accurate, and was expressing no conclusion as to the reliability of any particular identification. He agreed during cross-examination that it was certainly possible to get an accurate identification even under the worst of circumstances.

We have reviewed the entire record and are satisfied that identifications made by Vershay and Samuels are reliable and sufficient as a matter of law. Nor are we persuaded that the conditions under which the police administered the photographic lineups were so tainted as to preclude either eyewitness from making a reliable identification. We conclude, rather, that the testimony we have summarized above provides substantial evidence permitting a reasonable trier of fact to find beyond a reasonable doubt that defendant was one of the perpetrators of the attack on Vershay. (People v. Cooks, supra, 141 Cal.App.3d at p. 278; Evid. Code, 411.)

B. Sufficiency of Evidence to Support the Enhancement Finding

Section 12022.7, subdivision (a), requires the imposition of an additional and consecutive three-year term of imprisonment to punish [a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony. Defendant challenges the jurys finding that found this enhancement allegation to be true. He reasons that the evidence was insufficient to prove beyond a reasonable doubt that he physically joined the group attack on Vershay and directly applied unlawful force sufficient to be a substantial factor in causing Vershays resulting injuries.

On this issue, the court gave the following group assault instruction: If you conclude that more than one person assaulted Keith Vershay and you cannot decide which person caused which injury, you may, but are not required to, conclude that the defendant personally inflicted great bodily injury on Keith Vershay if the People have proved that: [] 1. Two or more people, acting at the same time, assaulted Keith Vershay and inflicted great bodily injury on him; [] 2. The defendant personally used physical force on Keith Vershay during the group assault; [] AND [] 3. The amount or type of physical force the defendant used on Keith Vershay was enough that it alone could have caused Keith Vershay to suffer great bodily injury. (See CALCRIM No. 3160.) This group assault instruction has recently been upheld as a proper statement of the law when the evidence presented to prove an enhancement allegation under section 12022.7, subdivision (a), shows, as it did here, a group attack resulting in great bodily injury to the victim. (People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1415, 1417-1418.) Again, we apply the substantial evidence standard of review, examining the entire record in the light most favorable to the judgment to determine whether a rational trier of fact could have found true, beyond a reasonable doubt, those elements of this group assault instruction that defendant has challenged.^[6] (See People v. Johnson, supra, 26 Cal.3d at p. 578.)

Vershay, as we have noted, identified defendant as one of the perpetrators of the attack, specifically the one who walked in front of Vershays vehicle and afterwards took a jab at Vershay through the open passenger window. Samuels testified that she first saw a car in the middle of the road with the door open and commotion. She then saw someone being hit and kicked and beat up. She estimated there were four or five men located [m]ainly right where the door was opened, who were kicking and hitting Vershay as he lay on the street. When asked whether all of the individuals who were around [Vershay were] participating in the hitting and kicking, Samuels responded that [t]hat is what I visualized, how I remember it. Everybody was involved. When asked to clarify whether [a]ll of them were participating, she said, Yes. Samuels testified that, when she first parked her vehicle and got out in order to intervene, all four or five men were still hitting and kicking the man on the ground. She said that a crowd had begun to gather, kind of watching, but testified that no one was around the car itself except those who were beating and kicking Vershay. When asked if the man she had identified in the photographic lineup was one of the people involved in the assault, she answered in the affirmative. Samuels stated that she recognized defendant in the photographic lineup because she saw his face. When asked to describe the circumstances when she saw defendants face, Samuels said she viewed his face as [she] was running up to the situation because they were still there, then they started to leave.(Italics added.) On redirect, Samuels replied in the affirmative when the prosecution asked if she was confident the day [she had] picked [defendant] out of [the] photographic lineup that he was involved in the assault on Keith Vershay. The prosecution then asked whether, in fact, she had told the officer who had conducted the photographic lineup that the man she had identified was the last one standing over Keith Vershay as [she] approached. Samuels replied, Yes.

Another witness, Jason Guynn, observed the incident from some 50 yards away. He saw one individual reaching into Vershays vehicle on the passenger side. At one point in his testimony, Guynn said that this individual walked around the rear of the vehicle to the drivers side to join the other guys. When faced with a police report to refresh his memory, Guynn admitted seeing somea couple guys, they got [Vershay] out of the car and probably all were trying to get him on the ground.

The testimony of Vershay, Samuels and Guynn was sufficient for a reasonable finder of fact to find true, beyond a reasonable doubt, the fact that defendant, from his position on the passenger side of the vehicle, moved to join other individuals who had pulled Vershay from the vehicle, and that defendant, together with all the other individuals in that group, took an active part in kicking and beating Vershay. Samuels, in particular, saw no one else around the car other than the group attacking Vershay, and saw defendants face as she approached, as one of the group attacking Vershay, and the last to leave when they began running from the scene. Given the extreme severity of the resulting injuries to Vershay, described above, we also conclude that a reasonable trier of fact could have found, by inference, that each individual in the group of attackers, including defendant, had beyond a reasonable doubt applied an amount or type of physical force that alone could have caused [Vershay] to suffer great bodily injury. (See CALCRIM No. 3160.) There was, in sum, substantial evidence to support the jurys conclusion that the enhancement allegation under section 12022.7, subdivision (a), was true.

C. The Motion for New Trial

1. Introduction

Following the jurys verdict in March 2006, defendant moved for a new trial on the ground of jury misconduct. (See 1181, subd. (3).) He contended the jury, during deliberations, had improperly considered his failure to testify, despite the courts instruction to the contrary. He also urged that the statements reportedly made by one juror showed not only personal bias against himself but also disclosed an improper discussion of extraneous information relating to the prosecutions eyewitness identification evidence. Defendant here challenges the trial courts denial of that motion.

The denial of a motion for new trial is within the discretion of the trial court and   will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.   (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).) We consider first whether jury misconduct actually occurred. In doing so we accept the trial courts credibility determinations and findings on questions of historical fact if supported by substantial evidence. (People v. Majors (1998) 18 Cal.4th 385, 417 (Majors).) If we conclude misconduct did occur, we review independently whether defendant suffered prejudice as a result. (Ibid.)

In support of his motion, defendant submitted the declaration of Juror B. The trial court held admissible Juror Bs statements that another juror had, during deliberations, asserted that if [defendant] was innocent he would have testified in his own behalf, that other jurors reminded the group they were not allowed to consider this in their deliberations, that the matter came up several times and it appeared that some of the jurors could not discuss the absence of an alibi without bringing up the failure of the defendant to testify, and that again the discussion moved to the lack of an alibi presented by the defense and the failure of [defendant] to testify in his own defense. The court further admitted averments by Juror B to the effect that Juror S told the others that his experience as a law enforcement officer [had] led him to the conclusion that if a witness is viewing a 6 pack and says I think I recognize this one, that is as good an identification as you should expect, whereas if somebody says, Thats him, Im positive, you should suspect that identification as it may be the witness trying to lay blame on somebody rather than the perpetrator.

In opposition to the motion, the prosecution submitted a declaration executed by Juror S. The trial court admitted averments by this juror to the effect that he [did] not recall any discussion regarding the defendants failure to testify, that he suggested an evidentiary pro/con list, which he subsequently recorded but as to which he made no substantive contribution, and that [d]efendants failure to testify was not on the pro/con list.

The trial court held that the admitted statements of Juror S did not directly refute those of Juror B, thus finding the averments summarized above to be essentially undisputed.

2. The Remarks of Juror S Concerning the Photographic Lineup Identifications

Defendant contends the trial court erred in concluding that the statements of Juror S concerning the photographic lineup testimony did not constitute misconduct. He urges that in making these comments, Juror S improperly functioned as an unsworn expert witness providing specialized information contrary to the testimony of his own expert witness, and that the opinion expressed by Juror S served to turn[] the weakness of the [prosecutions] identifications into a strength. In defendants view the comments were prejudicial because they effectively undermined the heart of [his] defensethat is, the uncertainty of the photo-identifications made by Vershay and Samuels. Defendant argues the prejudicial effect of the comments is further demonstrated by the length of time the jury deliberated in relation to the length of the trial itself,^[7]and by the jurys written request during deliberations to review the officers reports in which [Vershays] and [Samuels] initial responses to the six-pack lineup is recordedthe exact quotes, [please].^[8]

We note that a juror, regardless of his or her educational or employment background, [may properly] express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. . . . [But a] juror should not discuss an opinion explicitly based on specialized information obtained from outside sources. (In re Malone (1996) 12 Cal.4th 935, 963.) The injection into jury deliberations of external information . . . or specialized knowledge of a matter at issue is misconduct. (Ibid.)

Here it does not appear that Juror S made any explicit assertion of expertise in the area of eyewitness identifications, nor any explicit claim that his conclusions were based on outside sources of specialized knowledge he had acquired by virtue of his law enforcement training. According to Juror B, Juror S claimed only to have drawn his conclusions from his law enforcement experience. Nor do we find the conclusions of Juror S to be necessarily contrary to the evidence presented during trial, so much as a permissible interpretation of that evidence. (See People v. Steele (2002) 27 Cal.4th 1230, 1266.) Recognizing that a fine line exists between a jurors permissible use of his or her background to analyze evidence, and a jurors expression of an opinion based explicitly on specialized information obtained from outside sources, we nevertheless are not persuaded, on the basis of the admitted averments, that Juror S improperly crossed that line in this instance. (Ibid.) We conclude there was no misconduct, and thus do not reach the issues defendant has raised concerning prejudice.

3. The Discussion of Defendants Failure to Testify

Defendant argues that, while the trial court was correct in concluding that the jurys discussion of his failure to testify was misconduct, it erred in concluding that the misconduct was not prejudicial. He reasons that it was prejudicial because the initial comment reportedly made by one jurorthat if [defendant] was innocent he would have testified in his own behalfdrew an improper inference. Moreover, the jurys repeated discussion of the issue demonstrated a movement on the part of some jurors to disobey the courts instructions, which was not dispelled by the admonition given at one point by other jurors, to the effect that they were not to consider defendants failure to testify.

The Attorney General concedes that the discussion of defendants failure to testify constituted jury misconduct. The trial court instructed the jury not to consider or discuss that fact, and the failure of the jurors to follow that instruction was misconduct. (See CALCRIM No. 355; In re Hamilton (1999) 20 Cal.4th 273, 305.) Hence we focus on an independent review of the issue of prejudice. (Majors, supra, 18 Cal.4th at p. 417.)

Jury misconduct raises a rebuttal presumption of prejudice. (People v. Holloway (1990) 50 Cal.3d 1098, 1108.) The presumption may be rebutted, inter alia, by a reviewing courts determination, upon examination of the entire record, that there is no substantial likelihood the complaining party suffered actual harm. (People v. Hardy (1992) 2 Cal.4th 86, 174.)

Here the relevant extrajudicial evidence admitted by the trial court consists of averments made by only two of the twelve jurors. One, Juror B, reported that during deliberations another juror voiced an impermissible inferencethat is, that defendant would have testified if [he] was innocentand also that the fact of defendants failure to testify came up several times. However, Juror B also reported that she and other jurors reminded the jury as a whole that it was not permitted to consider defendants failure to testify. In addition, Juror S did not recall any discussion of defendants failure to testify, a fact indicating that the discussions that did occur were neither lengthy nor significant. (Cf. People v. Hord (1993) 15 Cal.App.4th 711, 728.) Moreover, it appears from Juror Ss admitted averments that the jury compiled a pro/con listin effect a list of those factors the jury explicitly considered in determining defendants guiltand that this list did not include the fact of defendants failure to testify.

These circumstances do not in our view disclose a substantial likelihood that defendant suffered actual harm. Juror Bs declaration, that another juror stated during deliberations that Mr. Coleman would have testified if [he] was innocent, is an after-the-fact statement of the other jurors subjective mental processes and thus inadmissible to impeach the verdict. (Evid. Code,  1150.) This jurors expression of a personal opinion that an innocent person should profess his innocence is the type of statement that does not, without speculation, imply that the juror believed Mr. Coleman was automatically guilty. There is no indication of how this jurors personal opinion about how one should behave influenced his decision regarding Mr. Coleman.  Where the alleged misconduct is entirely speculative in nature, it is settled that the denial of a constitutional right resulting in essential unfairness must be established as a demonstrable reality, not as a matter of speculation. [Citation.] (People v. Hood, supra, 15 Cal.App.4th at p. 725.)

We conclude the challenged misconduct was not prejudicial, and find no clear abuse of discretion in the trial courts denial of defendants motion for a new trial on this ground. (See Delgado, supra, 5 Cal.4th at p. 328.)

D. Imposition of the Upper Term Sentence

The trial court imposed the upper term of five years imprisonment for defendants conviction under section 211 based on the following aggravating factors: the acts of the defendant constitute a high degree of cruelty, viciousness, and callousness; . . . the victim was vulnerable . . .[;] [] . . . [] the defendants conduct indicated that he is a danger to society[; defendant] was on felony probation[; and defendants] prior performance on probation was totally unsuccessful.

Defendant argues the imposition of the upper term violated his Sixth Amendment right to have a jury determine the aggravating factors beyond a reasonable doubt, pursuant to Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856, 868] (Cunningham), decided during the pendency of this appeal.

We find no merit in this contention. Subsequent to the decision in Cunningham, supra, 127 S.Ct. 856, our Supreme Court held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black).) As defendant concedes, we are bound by that decision and thus we do not address his contention that it was wrongly decided. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

The fact of a prior conviction has been construed to include recidivist factors generally. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222; see also Black, supra, 41 Cal.4th at pp. 819-820; People v. McGee (2006) 38 Cal.4th 682, 708-709.) We decline defendants invitation to construe that fact more narrowly. Here, two aggravating factors on which the trial court relied were that defendant was on felony probation and that his performance on probation was totally unsuccessful. (See Cal. Rules of Court, rule 4.421(b)(4), (5).) They necessarily derive from the fact of a prior felony conviction, and demonstrate recidivism in that defendant, having been given a grant of formal probation following that prior conviction, failed to comply with the terms of his probation and more specifically violated its terms by committing the felonies now under review. In our view these factors fall properly within defendants record of prior convictions for purposes of the holding in Black. As these factors alone were a legally sufficient basis for imposing the upper term, we conclude there was no violation of defendants right to a jury trial.^[9]

E. The Order of Restitution to the Air Force

The trial court imposed a restitution fine of $8,497.38, payable to Vershays employer, the Air Force. This fine is based on a restitution claim submitted in that amount by the Air Force, after it provided medical treatment to Vershay for the injuries he suffered during the attack. Defendant challenges the validity of the fine, reasoning that the Air Force is entitled to make such a claim only against a tortfeasor (see 42 U.S.C. 2651 et seq.), and that a restitution fine may be imposed in a criminal case in favor of a government entity only when the agency is a direct victim of the crime. ( 1202.4, subd. (k)(2); see People v. Martinez (2005) 36 Cal.4th 384, 393.)

The Attorney General essentially concedes the merit of this objection. Accordingly we will remand on this point, directing the trial court to vacate this particular restitution order.^[10]

Disposition

The trial court is directed to vacate its order of restitution to the Department of the Air Force in the amount of $8,497.38, and to prepare and forward to the Department of Corrections an amended abstract of judgment in case No. FCR212343 reflecting this change. In all other respects the judgment is affirmed.

_________________________

STEIN, Acting P. J.

We concur:

_________________________

SWAGER, J.

_________________________

MARGULIES, J.

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^[1]Further statutory references are to the Penal Code. References to rules are to the California Rules of Court.

^[2]In a separate petition for writ of habeas corpus (In re Coleman, 2007, A117926), defendant claims ineffective assistance of trial counsel. We have denied the petition by separate order filed this date.

^[3]At the same time, the court imposed an additional consecutive sentence of two years eight months imprisonment, based on a prior conviction and enhancement finding as to which probation had been revoked.

^[4]See footnote 5, post.

^[5]The admonishment stated the following: In a moment, Im going to show you a group of photographs. Take your time and carefully look at all the photographs before you make any decisions. [] This group of photographs may or may not contain . . . a picture of a person who committed the crime now being investigated. Keep in mind the hair styles. Beards and mustaches could be easily changed. [] Also, photographs may not depict the true complexion of the person. They may be a lighter or darker depiction in the photo. Pay no attention to markings or numbers that may appear on photo or any other differences in the type or style of photographs. [] When you have looked at all the photos, tell me what you see and what you recognize. Do not tell the other witnesses that you have or have not identified anybody.

^[6]There can be no doubt that substantial evidence supports the element defendant has not challengedthat two or more men attacked Vershay at the same time and inflicted great bodily injury.

^[7]The trial began around 2:00 p.m. on March 15, 2006, continued all day on March 16, and concluded around 11:50 a.m. on March 17. The jury afterwards deliberated for almost eight hours over a period of two court days.

^[8]On the photographic lineup signed by Samuels was a notation that she had recognized the identified person from [the] incident on Pintail Ave. The lineup signed by Vershay had a similar notation, to the effect that he recognized the identified person from the incident in question.

^[9]Recidivist factors are similarly exempted from those aggravating factors that must be alleged in the charging document to satisfy a defendants constitutional due process rights. (See Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, 1483.) Hence we reject defendants argument that his due process rights were infringed by the prosecutions failure to allege the facts on which the trial court relied in imposing the upper term sentence for his conviction under section 211.

^[10]We note the trial court reserved jurisdiction to order further restitution. We leave it to that court to consider the merit, if any, of the Attorney Generals argument that it may order restitution in the same amount for Vershay rather than the Air Force.