P. v. Johnson
Filed 6/21/13 P. v. Johnson CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
>
THE PEOPLE, Plaintiff and Respondent, v. DARRYL RONALDO JOHNSON II, Defendant and Appellant. | A131027 (Solano County Super. Ct. No. FCR261253) |
Defendant
Darryl Ronaldo Johnson II appeals from a judgment after a jury convicted him of
attempted second degree robbery (three
counts), together with true findings on firearm use allegations (Pen. Code,
§§ 211, 664, 12022.5, subd. (a)(1), 12022.53, subd. (b)
(§ 12022.53(b))), and possession of a firearm by a felon (§ 12021,
subd. (a)(1)). After a bench trial, the
court found defendant’s juvenile adjudication for robbery qualified as a prior
strike within the meaning of the “Three Strikes†law. (§§ 211, 667, subds. (b)-(d), 1170.12,
subds. (a)-(d).) Defendant was sentenced
to an aggregate term of 18 years in state
prison on the current convictions, to run concurrently to a four-year term
on a prior conviction for transporting controlled substances after revocation
of probation. On appeal defendant
challenges his current convictions and sentences on various grounds, as well as
presentence conduct credit awarded on his prior drug conviction. We agree with defendant that he is entitled
to a recalculation of his presentence conduct credit on his prior drug
conviction. In all other respects, we
affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
The offenses and
sentence enhancement allegations against defendant arose from an incident on
November 28, 2008. At a jury trial
held in October 2010, the following testimony was elicited.
Prosecution’s Case
On
the morning of November 28, 2008, Eduardo Gonzalez was working in his
market in Dixon. Also in the market were
Evelia Ramirez and Edward Hernandez.
Shortly after 8:00 a.m., a man entered the market and first walked
toward Hernandez. The man’s face was
covered with a white material or tee shirt, he wore gloves, and he held a
gun. The gunman pointed the gun at
Hernandez’s torso and said in slang and accented Spanish, “Give me the
money.†Hernandez replied in English
that he had no money.
name="_ftnref2" title="">[2] The gunman then walked toward Ramirez, and
pointed the gun at her midriff and touched her stomach. The gunman said in English, “Give me
money. Give me money.â€
observed the gunman point the gun at Ramirez's stomach. Gonzales approached the gunman and said in
English, “Could I help you? The gunman
pointed the gun at Gonzalez’s stomach and said in English, “The money.†Gonzalez and the gunman walked to the front
of the store. At some point, Gonzalez
turned and grabbed the gun and the men wrestled for the gun. The gunman let go of the gun and ran out of
the store. The gunman’s right hand glove
fell off during the struggle.
name="_ftnref4" title="">[4]
Gonzalez told Hernandez to get into his truck
and follow the gunman. Hernandez complied, and followed the gunman who was on
foot. Hernandez momentarily lost sight
of the gunman and then saw a Jaguar car’s lights come on. Hernandez followed the Jaguar as it sped
through empty streets, not stopping for signs or stop lights at three
intersections. Hernandez followed the
Jaguar onto Interstate 80 eastbound.
After Hernandez lost sight of the Jaguar, he stopped his pursuit and
returned to the market.
Shortly
after Hernandez ceased his pursuit of the Jaguar, 12-year veteran California
Highway Patrol Officer Mark Garside was on routine patrol when he saw a Jaguar
going at least 100 miles per hour in the freeway fast lane. Garside paced the Jaguar from behind for
approximately one mile and then attempted to pass the Jaguar. As he began to pass the Jaguar, Garside
observed the car “braking suddenly,†and without signaling, the car moved
rapidly across three traffic lanes with no traffic. The Jaguar’s braking and lane-changing
maneuver was sudden and potentially dangerous, but it was “done very
smoothly.†Garside activated his car
lights and the Jaguar pulled over onto the shoulder of the road “in a normal
fashion.†Garside observed on the
Jaguar’s passenger front seat a white tee shirt and a glove. At trial, Garside identified defendant as the
driver of the Jaguar.
Garside
informed defendant he was stopped for speeding and asked him a couple of
questions regarding the road’s speed limit, how fast he was going, and the reason
for his speeding. Defendant said the
speed limit was “65†and he was going “90 to 100.†He was on his way to Sacramento to see his
child, whom he did not see very often.
The child’s mother said she wanted to go shopping, and if he wanted to
see his child he needed to get there right now.
The officer then asked defendant for identification, registration, and
proof of insurance. Defendant complied,
retrieving the car’s registration from the glove box. Defendant then got out of the car and
retrieved the other requested documents from the car’s trunk. Garside testified that at that time of the
morning, he normally looked for objective signs that a driver had been drinking
or using drugs. However, nothing gave
the officer “even the slightest belief†that defendant had consumed any alcohol
or controlled substances.
name="_ftnref5" title="">[5]
While
defendant sat in the Jaguar, Garside returned to his patrol car to issue a
citation. Garside heard a “Be on the
Lookout†radio announcement, which described the car he had just stopped. After communicating with police dispatch,
Garside handcuffed defendant, did a pat search for weapons, and placed
defendant in the back of the patrol car.
Dixon Police Officer Ronald Willingmyre arrived at the scene and
searched the Jaguar. Willingmyre secured
the glove and white tee shirt, which were admitted into evidence as People’s
Exhibits 8 and 9.
title="">[6]
Shortly
after defendant’s detention, Gonzalez and Hernandez were brought to the scene
of the traffic stop. Gonzalez was not
able to identify defendant as the gunman because the gunman had covered his
face. Hernandez said defendant was
dressed in the same clothes as the gunman but the witness was unable to make a
facial identification of defendant as the gunman. Hernandez identified the Jaguar as the same
car he had pursued after the attempted robberies.
Case
Defendant
testified on his own behalf. In
November 2008, he was living in his father’s home in Dixon, working as a
cart pusher at a store, and he leased a 2003 Jaguar. On November 27, defendant drove his car
to a party in Dixon. He did not know the
person who was hosting the party. He
arrived at the party between one and two o’clock in the morning on
November 28. He drank, danced, and
socialized with about 12 to 15 people; he knew three of the partygoers. Defendant
recalled having seven shots of Cognac because he was playing a drinking
game. To his knowledge, he did not use
any drugs that evening. Although he had
used rock cocaine in the past, he was not using rock cocaine that evening. He never
fell asleep at the party and he did not know how long he stayed at the
party. His last conscious memory during
the party was dancing with a girl whom he had never met before and he did not
recall her name. Defendant’s next memory
was waking up in jail in custody.
When
asked if he remembered anything that happened the morning after the party,
defendant replied, “No. I was
intoxicated, rendered me unconscious.â€
Defendant had absolutely no memory of going to Gonzalez’s market on the
morning of November 28. He recalled
that a couple of weeks earlier he shoplifted a bag of chips from the market,
argued with some unknown person there and left.
Defendant had no memory of driving his car, being pulled over, or
talking to the patrol officer on November 28. After listening to the testimony in court,
defendant did not recall anything that happened on November 28 nor did he
recognize any of the witnesses who testified in court. When asked if his current memory loss was
consistent with past occasions where he was really drunk, defendant replied,
“When you’re under the influence of any substance, you tend to do things that a
sober person would not.†Defendant also
testified it was not his normal practice to go into a store with his head
covered and wearing gloves, or to speed or go through stop signs or stop lights
when driving.
Defendant
admitted he owned the gun that was recovered in the market. On November 5, 2008, he purchased the
gun for $100 from someone whom he initially refused to name. After the court directed an answer, defendant
said he bought the gun from “Blanco†but he did not know the man’s real name or
where he lived. He purchased the gun
because he had been assaulted several times the previous summer and in October
and on November 1, 2008. None of
the assaults were reported to the police and he received no medical
treatment. He carried the unloaded gun
in his pocket for protection “just to show.â€
Defendant
was also questioned about his prior criminal offenses. On direct examination, he recalled that when
he was 16 years of age he was in juvenile court for a criminal offense. He “shoplifted a bottle of alcohol to drink
from a supermarket,†argued with one of the managers, and then just left. When asked if there was some pushing involved
as he left the store, defendant replied, “That was like four years ago. I really can’t remember.†When asked if he recalled that in juvenile
court it was said he committed a robbery because of “the physical part on the
way out of the store,†defendant replied, “I signed a plea bargain for a
robbery, but it was a shoplifting.â€
Defendant also admitted that as an adult he possessed cocaine. When asked if he ever transported or moved it
around, defendant replied, “That again, I used cocaine, and I signed a plea
bargain just to get out of custody.†On
cross-examination, defendant admitted that on April 10, 2008, he had been
convicted of violating “Heath and Safety Code section 11352(a), transportation
for sale of cocaine,†pursuant to a “plea bargain,†and “[t]o dismiss my other
counts.†He was not in the business of
selling cocaine, but pleaded guilty “[t]o get out of custody,†and “[t]o get on
with [his] family.†When asked whether
“on August 19, 2004, in Solano County juvenile court in case number J34849
dash 001, did you not admit a violation of Penal Code Section 211, robbery,â€
defendant replied, “Yes, I signed a plea bargain.†On rebuttal, defense counsel asked if
defendant knew whether he had pleaded guilty or “admitted a petition†in the
juvenile court or even if he knew what the difference was, and defendant
replied, “No.†Defendant recalled
signing some papers about the incident, and that the store manager had tried to
stop him from leaving with the alcohol, but no weapons were involved and to his
knowledge, no one was injured. The
parties later stipulated defendant had “suffered a prior felony conviction for
violating Health and Safety Code section 11352.â€
DISCUSSION
Instructions
Defendant contends
reversal is compelled based on certain instructions given to the jury. We address each of defendant’s claims of
instructional error more fully below, and ultimately conclude they lack merit.
Nos. 361 and 362
Over defendant’s
objections, the trial court instructed the jury regarding its consideration of
defendant’s testimony using language in CALCRIM Nos. 361 and 362. Thus, the jury was advised that “[i]f the
defendant failed in his testimony to explain or deny evidence against him, and
if he could reasonably be expected to have done so based on what he knew, you
may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to
prove guilt. The People must still prove
the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to
explain or deny, it is up to you to decide the meaning and importance of that
failure.†(CALCRIM No. 361.) The jury was also advised that “[i]f the
defendant made a false or misleading statement before his trial relating to the
charged crime, knowing the statement was false or intending to mislead, that
conduct may show he was aware of his guilt of the crime and you may consider it
in determining his guilt. [¶] If you conclude that the defendant made the statement,
it is up to you to decide its meaning and importance. However, evidence that the defendant made
such a statement cannot prove guilt by itself.â€
(CALCRIM No. 362.)
On
appeal the parties present extensive arguments discussing whether the trial court
should have instructed the jury using the language in CALCRIM Nos. 361 and
362. However, we need not address these
arguments. Even assuming the trial court
should not have so instructed the jury, defendant has failed to demonstrate
prejudicial error requiring reversal under any
v. California (1967) 386 U.S. 18, 24 (Chapman);
People v. Watson (1956) 46 Cal.2d
818, 836 (Watson).)
CALCRIM
Nos. 361 and 362 were permissive.
CALCRIM No. 361 allowed, but did not compel, the jury to find
defendant knowingly failed to explain or deny evidence. Similarly, CALCRIM No. 362 allowed, but
did not compel, the jury to find defendant made a false or misleading pretrial
statement. If the jury did not make the
allowed findings, then it was advised “to disregard†the challenged
instructions.
v. Lamer (2003) 110 Cal.App.4th 1463, 1472 (Lamer); see People v. Yeoman
(2003) 31 Cal.4th 93, 130 [court presumes jury is able to understand and follow
instructions].) Additionally, each
challenged instruction admonished the jury that any evidence of defendant’s
failure to deny or explain (CALCRIM No. 361) or his false or misleading
pretrial statement (CALCRIM No. 362) was not sufficient to convict, and
the jury was to decide both the meaning and importance of any such
evidence.
We
reject defendant’s arguments that the challenged instructions were prejudicial
based on the prosecutor’s closing arguments.
During closing, the prosecutor “stressed [defendant] lied to the jury,â€
but he did not expressly refer to CALCRIM No. 361 or otherwise focus on
defendant’s failure to explain or deny any evidence. The prosecutor asked the jury to consider
defendant’s explanation for speeding when considering his testimony that he was
not guilty because he was so drunk he blacked out and was unconsciousness,
noting that the evidence showed defendant gave a coherent explanation for
speeding for the purpose of misleading the officer.
prosecutor’s comments as words spoken by an advocate in an attempt to
persuade,†and otherwise followed the court’s instructions regarding its
consideration of defendant’s pretrial statements made to Officer Garside. (People
v. Sanchez (1995) 12 Cal.4th 1, 70.)
Thus, on this record, we conclude that any instructional error was
harmless. (Lamer, supra, 110 Cal.App.4th at p. 1473 [court held harmless
error in using language in CALJIC No. 2.62
that corresponds to CALCRIM No. 361, where, among other things,
prosecutor’s closing statement made no reference to instruction or defendant’s
failure to explain or deny, but “provided a detailed description of all the
ways in which the defendant had explained and denied his activities by
error in using language in CALJIC No. 2.03
that corresponds to CALCRIM No. 362 where defendant’s false pretrial
statements did not show any consciousness of guilt].)
Relying
on People v. Wiidanen (2011) 201
Cal.App.4th 526 (Wiidanen), decided
after his trial, defendant argues the trial court’s instructions on
consciousness of guilt (CALCRIM No. 362) and voluntary intoxication
(CALCRIM No. 3426
name="_ftnref11" title="">[11])
were incompatible as those instructions advised the jury that it could infer
defendant’s consciousness of guilt if they found he knowingly made a false or
misleading statement to Officer Garside, but it could not consider defendant’s
intoxication at the time he made that statement. Defendant “takes his argument one step
further,†contending “CALCRIM Nos. 362 and 3426 together created an
‘irrational permissive inference’ in violation of due process.†(Wiidanen,
supra, at p. 533.) However,
even assuming defendant’s failure to object in the trial court did not forfeit
this claim of instructional error, we conclude any error was harmless under any
standard of review. (
p. 836.)
In
Wiidanen, supra, 201 Cal.App.4th 526, the reviewing court found the trial
court erred in giving the consciousness of guilt instruction (CALCRIM
No. 362) with an unmodified version of the voluntary intoxication
instruction (CALCRIM No. 3426), because if the jury believed the defendant
made false or misleading statements, it should be allowed to consider whether
defendant was intoxicated at the time he made the statements and whether his
intoxication prevented him from knowing those statements were false or
misleading. (Id. at p. 533.) “If the
jury so believed, those statements would not have been probative of defendant’s
consciousness of guilt.†(
However, the Wiidanen court
further held that in that case any instructional error was harmless (
p. 836), and did not violate the defendant’s due process rights, because
the instruction’s permissive inference, i.e., defendant was aware of his guilt
when he made the false statements, was reasonable “in light of the proven facts
before the jury.†(Id. at p. 534.) We find
Wiidanen to be persuasive authority
supporting an affirmance in this case.
Because
CALCRIM No. 362 (consciousness of guilt), is a “permissive inference†that
“leaves the trier of fact free to credit or reject the inference and does not
shift the burden of proof, it affects the application of the ‘beyond a
reasonable doubt’ standard only if, under the facts of the case, there is no
rational way the trier could make the connection permitted by the
inference. For only in that situation is
there any risk that an explanation of the permissible inference to a jury, or
its use by a jury, has caused the presumptively rational factfinder to make an
erroneous factual determination.†(
Thus, “[a] permissive inference violates the Due Process Clause only if
the suggested conclusion is not one that reason and common sense justify in
light of the proven facts before the jury.â€
(Francis v. Franklin (1985)
471 U.S. 307, 314-315.)
Here,
we conclude that reversal is not required because CALCRIM No. 362’s
“ ‘suggested conclusion,’ i.e. defendant was aware of his guilt†when he
made his false or misleading statements to Officer Garside, “was reasonable ‘in
light of the proven facts before the jury.’ †(Wiidanen,
supra, 201 Cal.App.4th at p. 534.)
Defendant’s defense was, in essence, that he was so intoxicated he could
not form the requisite intent to commit the charged offenses of attempted
robbery. The jury was instructed that if
it found defendant was intoxicated at the time of the attempted robberies, it
should consider that circumstance in determining whether he had the intent
required for the commission of those crimes.
The fact that the jury convicted defendant of the attempted robberies
indicates it found defendant was not so intoxicated as to render him unable to
form the required intent to commit those offenses. Consequently, if the jury found defendant
made false or misleading statements to Officer Garside, its application of “the
permissive inference, i.e., defendant was aware of his guilt when he made†his
statements to Officer Garside, was “reasonable, and the court did not violate
defendant’s due process rights by giving these instructions.†(Wiidanen,
supra, at p. 534.) “For the
same reason the instructions did not violate
instructions was harmless under state law,†as “it was not ‘reasonably probable
that a result more favorable to [defendant] . . . would have been
reached in the absence of the error.†(
B. CALCRIM Nos. 223, 251, 3426
Defendant
contends the trial court committed prejudicial error by failing to include in
its voluntary intoxication instruction certain language in CALCRIM
No. 3426, which would have informed the jury that the People were required
to prove beyond a reasonable doubt that defendant acted with the specific
intent for each offense in order to convict him.
effect of the omitted language in the voluntary intoxication instruction was
compounded by the court’s failure to give, sua sponte, instructions concerning
the definitions of direct and circumstantial evidence (CALCRIM No. 223
and the concept of concurrence of “act and wrongful intent†(CALCRIM No. 251
which would have been helpful to the jury.
However,
even assuming defendant’s failure to object in the trial court did not forfeit
these claims of instructional errors, we conclude his contentions do not
require reversal as “[t]he instructions as
a whole . . . were not misleading.†(People
v. Castillo (1997) 16 Cal.4th 1009, 1016.)
“ ‘The correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.’
[Citation.] ‘ “The absence
of an essential element in one instruction may be supplied by another or cured
in light of the instructions as a whole.†’ †(Ibid.) Here, an examination of the entire
instructions supports our conclusion that the failure to address the element of
intent and the People’s burden of proof as part of the voluntary intoxication
instruction did not render that instruction incorrect or inadequate. As part of the voluntary intoxication
instruction, the jury was told to consider such evidence in determining whether
“defendant acted with the intent to do the act required in Counts 1, 2 and/or
3, or the special findings regarding personal use in Counts 1, 2, 3, and/or
4.†In the instructions on the substantive
elements of counts one through three (attempt and substantive offense of
robbery), and the special allegations of personal use of a firearm, the jury
was advised of the requisite mental states that the People had to prove in
order for the jury to find defendant guilty of the charged crimes or make true
findings of the special allegations.
whenever the instructions told the jury that the People had to prove something,
it meant the People had to prove it beyond a reasonable doubt.
Defendant’s
related argument, premised upon the trial court’s failure to give, sua sponte,
CALCRIM Nos. 223 and 251, fares no better.
Even assuming the trial court had a sua sponte duty to give these
instructions, we discern no prejudice.
Any error in failing to instruct the jury using the language in CALCRIM
No. 251 (concept of concurrence of act and wrongful intent) was cured by
the substantive crimes instructions, which informed the jury that a conviction
required a finding that defendant acted with the appropriate intent for each
crime. Similarly, any error in failing
to instruct the jury using the language in CALCRIM No. 223 (definition of
direct and circumstantial evidence) was cured by other instructions, which
allowed the jury to properly consider the evidence. Specifically, the jurors were told they “must
decide what the facts are in this case,†“ ‘[e]vidence’ is the sworn
testimony of witnesses, the exhibits admitted into evidence, and anything else
[the court] told you to consider as evidence,†“[o]nly the witnesses’ answers
are evidence,†and “[i]n deciding whether the People have proved their case
beyond a reasonable doubt, you must impartially compare and consider all the
evidence that was received throughout the entire trial. Unless the evidence proves the defendant
guilty beyond a reasonable doubt, he is entitled to an acquittal and you must
find him not guilty.†(CALCRIM
Nos. 220, 222.) Additionally, the
jury was advised how to use circumstantial
evidence: “Before you may rely on
circumstantial evidence to conclude that a fact necessary to find the defendant
guilty has been proved, you must be convinced that the People have proved each
fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on
circumstantial evidence to find the defendant guilty, you must be convinced
that the only reasonable conclusion supported by the circumstantial evidence is
that the defendant is guilty. If you can
draw two or more reasonable conclusions from the circumstantial evidence, and
one of those reasonable conclusions points to innocence and another to guilt,
you must accept the one that points to innocence. However, when considering circumstantial evidence,
you must accept only reasonable conclusions and reject any that are
unreasonable.†(CALCRIM
No. 224.) Despite the failure to
define direct and circumstantial evidence, the jury apparently understood those
concepts – the jury found defendant not guilty of possessing the shotgun found
in his car’s trunk, thereby rejecting the prosecution’s circumstantial
evidence, i.e., where “ ‘guilt must be inferred from a pattern of
incriminating circumstances.’ †(
167.) Last, the omission of the language
in CALCRIM Nos. 223 and 251 did not impinge on defendant’s “right to due
process and a fair jury deliberation process.â€
The given instructions “made clear that the prosecution had to prove
defendant’s guilt, including the existence of the required mental states,
beyond a reasonable doubt†(People v.
Livingston (2012) 53 Cal.4th 1145, 1165), thereby comporting with the due
process standard in In re Winship
(1970) 397 U.S. 358, 364. Thus, we
conclude instructional errors, if any, were harmless under any standard of
review. (Chapman, supra, 386 U.S. at p. 24, Watson, supra, 46 Cal.2d at p. 836.)
Court’s Refusal to Instruct on the Lesser Included Offenses of Attempted Robbery
Defendant argues
the trial court violated his Sixth Amendment right to a properly instructed
jury by refusing to instruct the jury on the lesser included offenses of
attempted grand theft from a person, attempted petty theft, and simple
assault. The trial court denied the
requested instructions in light of the evidence, “specifically, the evidence
that a firearm was pointed, and, in fact, touched, in some cases, the midriffs
or bellies of at least two of the three alleged victims, and the fact that the
defendant has no memory and he was not able to provide any other theory or any
other information related to a theory of grand theft from the person or petty
theft . . . .†According
to the court, instructions on the requested lesser included offenses were “not
required where the evidence . . . clearly indicate[d] the theory of
robbery. [¶] O[f] all those cases where they had an issue with grand theft,
petty theft of a person not being provided, they were really purse
snatcher-type cases. There was not the
opportunity for the force and fear. And
that[ ] just does not fit with the factual scenario presented in this
case.â€
On
appeal the parties have presented arguments as to whether attempted grand
theft, attempted petty theft, and assault, qualified as lesser included
offenses in this case, but we do not need to address those contentions. Even if attempted grand theft, attempted
petty theft, and assault, qualified as lesser included offenses, the trial
court correctly refused to so instruct the jury as no substantial evidence
supports a finding that defendant did not intend to rob the victims, but only
to assault or steal from them without force or fear. (See People
v. Dorsey (1995) 34 Cal.App.4th 694, 705-706.)
“Although
a defendant has a constitutional right to have a jury determine every material
issue presented by the evidence and the failure to so instruct is error, a
trial court is not required to instruct the jury as to all lesser included
offenses, only those that ‘find substantial support in the evidence.’ [Citation.]
In this context, substantial evidence is evidence from which reasonable
jurors could conclude ‘ “that the lesser offense, but not the greater, was
committed.†’ †(
700.) “[I]f there is no proof, other
than an unexplainable rejection of the prosecution’s evidence, that the offense
was less than that charged, such instructions shall not be given.†(People
v. Kraft (2000) 23 Cal.4th 978, 1063.)
Here,
all of the victims in the store testified they were approached by an armed gunman
who put them in fear and sought money.
Even assuming Ramirez did not understand what the gunman said, there was
no evidence the gunman intended to assault her if she failed to comply with his
request. The sum and substance of the
evidence relating to intoxication was defendant’s self-serving testimony that
some six hours before the attempted robberies he had drunk seven shots of
Cognac, his last memory was dancing with an unidentified woman at a party, and
his next memory was waking up in jail.
Thus, we conclude, as did the trial court, that the evidence presented
to the jurors presented them with “ ‘an all-or-nothing choice’: the jury
could either find that defendant had committed the [attempted robberies] or it
could find that he had committed no crime.â€
(People v. Friend (2009) 47
Cal.4th 1, 52.)
Juvenile Robbery Offense and Adult
Drug Offense
Before trial, both
the prosecutor and defendant asked the court to rule on the admissibility of
defendant’s prior juvenile robbery and adult drug offense of transporting
cocaine for sale as impeachment evidence if defendant chose to testify. Defendant sought exclusion of the priors,
while the prosecution sought their admission.
After an Evidence Code section “352 analysis,†the trial court ruled both priors would be
admissible as impeachment evidence. The
court explained that if defendant chose to testify, his “credibility and veracityâ€
would be “critical issues,†and the priors were “central to the ability to
evaluate his credibility,†and “not remote,†but “recent in time.†We find no error in the trial court’s ruling.
On
appeal defendant does not dispute that his priors constituted conduct that can
be used as impeachment evidence. (See
317 [allowing use of prior possession of heroin for sale]; People v. Jackson (1985) 174 Cal.App.3d 260, 266 [allowing use of
prior robbery]; see also People v. Lee
(1994) 28 Cal.App.4th 1724, 1740 [the prosecution may introduce prior conduct
that was “the subject of a juvenile adjudication, subject, of course, to the
restrictions imposed under Evidence Code section 352 and other applicable
evidentiary limitationsâ€].) Moreover,
admission of the robbery prior was not error despite any similarity to the
currently charged attempted robbery offenses.
(See, e.g., People v. Gutierrez
(2002) 28 Cal.4th 1083, 1139; People v.
Tamborrino (1989) 215 Cal.App.3d 575, 590 (Tamborrino) [impeachment allowed using robbery priors identical to
charged offense].) Further, the priors
were not necessarily so remote in time as to be inadmissible for
impeachment. “Even a fairly remote prior
is admissible if the defendant has not led a legally blameless life since the
time of the remote prior.†(
918, 925-926.) In this case, since the
commission of the robbery prior, defendant had been convicted of transporting
cocaine for sale, and committed the current offenses while on revoked probation
status for the drug conviction.
We
are not persuaded by defendant’s argument that his priors should have been
excluded because his testimony was critical to his defense. “Defendant’s credibility would be the crucial
issue for the People as well as for the defendant if he took the stand and
denied the [attempted] robberies. . . . There were no eyewitnesses to the [attempted]
robber[ies] except [the three victims who were] unable to identify defendant. The priors would be highly probative on the
issue of defendant’s credibility.†(Tamborrino,
supra, 215 Cal.App.3d at
p. 590.) The fact that the jury
asked to hear defendant’s testimony during deliberations does not demonstrate
that the evidence of the priors adversely affected the verdict. During deliberations, the jury also asked to
hear the testimony of CHP Officer Garside and Dixon Police Officer
Willingmyre. The jury’s request to
rehear testimony and its verdicts, including acquitting defendant of possessing
the shotgun found in his car’s trunk, demonstrates the jury focused on the
evidence and not the priors. Thus, we
reject defendant’s contention that it is reasonably probable that a result more
favorable to him would have been reached had the trial court not permitted the
priors to be used as impeachment evidence.
IV. Cumulative Errors
Defendant contends
reversal is warranted on grounds of cumulative error, arguing that the errors,
considered together, are not harmless beyond a reasonable doubt. We disagree.
As in People v. Cole (2004) 33
Cal.4th 1158, “ ‘[w]e have either rejected on the merits defendant’s
claims of error or have found any assumed errors to be
nonprejudicial.’ †(
independently harmless, may in some circumstances rise by accretion to the
level of reversible and prejudicial error.â€
(People v. Hill (1998) 17
Cal.4th 800, 844-845.) This is not such
a case. The record demonstrates that any
purported errors, considered individually or collectively, were not so
prejudicial as to deny defendant a fair trial or reliable verdicts.
Issues
Finding of Defendant’s Prior Juvenile Adjudication
The
information alleged that on August 19, 2004, in Solano County, defendant
had suffered a juvenile adjudication for “PC211,†which qualified as a strike
within the meaning of the Three Strikes law.
At a bifurcated bench trial, the prosecutor submitted the matter based
on the following documents admitted into evidence: a certified copy of waiver of rights form
filed August 19, 2004; a file-stamped copy of a court minute order dated
August 19, 2004, signed by the judicial officer who presided in the
juvenile court; a certified copy of a court minute order dated
September 2, 2004, signed by the judicial officer who presided in the juvenile
court; and a reporter’s transcript of the September 2, 2004, hearing. The prosecutor also asked the court to take
“judicial notice†of the fact that during the guilt-phase portion of the trial
defendant admitted he had sustained a juvenile adjudication for robbery.
After
argument by counsel, the trial court found defendant had sustained a prior
juvenile adjudication for robbery in violation of section 211, which offense
would qualify as a strike within the meaning of the Three Strikes law. In so ruling, the court explained: “I did see in People’s Exhibit 1 [waiver
of rights form], it was not signed by either the defendant or by the judge
accepting the plea. However, the minutes
from that same date August 19, 2004 do indicate that the written waiver
was filed and orally verified, [and] indicated that the Court accepted and that
there was an intelligent waiver of rights and a factual basis. [¶] Based on the
totality of the documents and the presumption that the minutes are correct, I
will accept that as a valid plea and intelligently received by the Court. [¶]
Also notably, the date of birth is contained within that minute order, same
date of birth as alleged in the Information for [defendant], and without doing
the math, I’ll rely on the minute order which indicates at the time of the
event, he was 16 years old. [¶] Also, [defendant] did testify as to his
remembrance that he had plead . . . to a 211 as a juvenile.â€
On
appeal defendant claims there was insufficient
evidence to support the trial court’s finding. We disagree.
Contrary to defendant’s contention, the trial court could reasonably
rely on the admitted juvenile court documents: (a) defendant’s written waiver
form in case no. J034849, initialed by defendant, indicated he wished to enter
an admission to counts “I (211 pc on July 4, 2004) & III 594 pc
(vandalism);†(b) the juvenile court’s minute order of August 19, 2004
(approved and signed by the presiding judicial officer), noted defendant’s
“DOB†as “9-9-87,†his age as “16,†and stated, in pertinent part: THE COURT
MAKES THE FOLLOWING FINDINGS & ORDERS: “Allegations . . .
admitted cts. 1 & 3,†“Written
waiver filed & orally verified,†“Court accepts admission(s) as free & voluntary with an intelligent
waiver of rights given & a factual basis established,†and “
as to cts. 1;â€
and (c) the September 2, 2004, minute order (signed by the presiding judicial
officer), and the reporter’s transcript of the September 2, 2004, hearing,
which indicated that defendant was adjudged a ward of the court based on the
petition filed in case no. J034849.
To
the extent the juvenile court documents do not specifically refer to
defendant’s admission to a violation of Penal Code section 211 (robbery), the
trial court appropriately considered defendant’s guilt-phase trial testimony in
which he stated that at 16 he admitted to violating Penal Code section 211,
robbery, in a juvenile court proceeding held on August 19, 2004.
opinion of then Associate Justice Raymond E. Peters in Jones v. Superior Court (1962) 58 Cal.2d 56, 62-63 (
his guilt-phase trial testimony made him a witness against himself and lessened
the prosecution’s burden of proof on the issue of the truth of the prior
juvenile adjudication, which “is improper and unfair.†However, Jones
is inapposite as it concerned a prosecution’s request for pretrial
discovery in an attempt to benefit from the defendant’s knowledge of potential
evidence to be used against him at trial.
(Id. at p. 60.) Here, we are concerned with the use of
defendant’s freely offered guilt-phase trial testimony to prove a prior
juvenile adjudication in the bifurcated enhancement phase. Because “[b]ifurcating the trial does not
create two separate actions,†“when [defendant] waive[d] his privilege against
self-incrimination by testifying in the guilt phase of the trial, that
privilege [was] waived for the sentencing phase as well.†(People
v. Harris (1992) 8 Cal.App.4th 104, 108; see id. at pp. 106-107 [prosecution allowed to use defendant’s
guilt-phase trial admission of prior robbery conviction in bifurcated
enhancement phase where fingerprint evidence was not available to prove identity
for prior robbery conviction].) Contrary
to defendant’s additional argument, we see nothing in his guilt-phase trial
testimony that calls into question the trial court’s reliance on his admission
to a juvenile adjudication for robbery.
In
sum, we conclude defendant’s guilt-phase trial testimony, together with the
juvenile court documents, constituted substantial evidence to support the trial
court’s finding that defendant sustained a juvenile adjudication for robbery, a
qualifying strike under the Three Strikes law.
of Defendant’s Request to Strike Prior Juvenile Adjudication
For
sentencing purposes, defendant asked the court to exercise its discretion,
pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 508 (Romero),
to strike his prior juvenile adjudication, which request was opposed by the
prosecution. The trial court denied defendant’s motion to strike, ruling as
follows: “I don’t think the interest of
justice warrants striking the prior, and the defendant has [not] shown me in
terms of his conduct on probation, his adult probation matter an[d] his conduct
during the trial would warrant me to exercise that type of discretion or
decision making. [¶] And frankly, I disagree with the characterization about a
career criminal. I think he has earned
himself a new career.â€
On
appeal defendant argues the trial court abused its discretion by refusing to
strike his prior juvenile adjudication for sentencing purposes. We see no merit to the argument. The trial court here appropriately found
defendant’s situation was not so extraordinary as to warrant striking his prior
juvenile adjudication for sentencing purposes.
As noted in the probation department’s report, defendant’s escalation of
a shoplifting incident to a robbery, his later commission of a serious drug
offense, and his current commission of attempted robberies, demonstrated “a
pattern of . . . increasingly serious criminal conduct.†The trial court aptly commented that
defendant’s conduct demonstrated he had “a new career.†The trial court acted well within its
discretionary authority in refusing to treat defendant “as though he had not
previously been convicted of one or more serious and/or violent felonies.†(People
v. Williams (1998) 17 Cal.4th
148, 161.)
of 10-Year Term Imposed on Section 12022.53(b)
Firearm
Enhancement As Applied to Defendant
In both a written
memorandum and during oral argument at sentencing, defendant asked the trial
court to strike the 10-year term for the section 12022.53(b) firearm
enhancement as unconstitutional (U.S. Const., 8th Amend.
name="_ftnref19" title="">[19];
Cal. Const., art. I, § 17
name="_ftnref20" title="">[20]),
as applied to him. The trial court
considered defendant’s arguments and understood it had the discretion to strike
the enhancement as unconstitutional as applied to him, but denied the request
for the reasons it gave for its sentencing decisions.
name="_ftnref21" title="">[21]
On
appeal defendant argues the imposition of the 10-year term for the section
12022.53(b) firearm enhancement was unconstitutional as applied to him. Although our review is de novo (
p. 1000), we reject, for the
reasons set forth below, defendant’s as-applied constitutional challenge.
“To
determine whether a sentence is cruel or unusual as applied to a particular
defendant, a reviewing court must examine the circumstances of the offense,
including its motive, the extent of the defendant’s involvement in the crime,
the manner in which the crime was committed, and the consequences of the
defendant’s acts. The court must also
consider the personal characteristics of the defendant, including age, prior
criminality, and mental capabilities. ([
If the court concludes the penalty imposed is ‘grossly disproportionate
to the defendant’s individual culpability’ (ibid.),
or, . . . that the punishment ‘ “ ‘shocks the conscience
and offends fundamental notions of human dignity’ †’ [citation], the
court must invalidate the sentence as unconstitutional.†(People
v. Hines (1997) 15 Cal.4th 997, 1078.)
In
examining the nature of defendant’s current offenses, the record demonstrates
he planned the robberies, wore a disguise and gloves to avoid later
identification, and, as he concedes, he frightened and scared the victims in
the store “when he entered and pointed a gun at each one.†Defendant asks that we consider certain
allegedly mitigating circumstances including that he used an unloaded gun, the
victims were not injured, and no property was taken. However, the Legislature has found the
personal use of a weapon during the commission of an attempted robbery is
deserving of the harsh punishment of 10 years in state prison even where the
firearm is not “operable and loaded†(§ 12022.53, subds. (a)(4)(18), (b)),
the victims have not been physically injured, and there was no loss of
property. (§ 12022.53, subds.
(a)(4)(18), (b)
title="">[22];
see People v. Ingram (1995) 40
Cal.App.4th 1397, 1416 [“[t]he seriousness of the threat a particular offense
poses to society is not solely depended upon whether it involves physical
injury†to the victims], disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8;
275 [“the presence or absence of violence does not always affect the strength
of society’s interest in deterring a particular crime or in punishing a
particular criminalâ€].) Section
12022.53(b) “punishes the perpetrator of one of the specified crimes more
severely for introducing a firearm into a situation which, by the nature of the
crime, is already dangerous and increases the chances of violence and bodily
injury. We conclude nothing in the
nature of the offense or how it was committed allows striking the mandatory
enhancement as cruel or unusual.†(
p. 1001.)
Nor
do we find that defendant’s personal characteristics render the 10-year term
unconstitutionally excessive. At the
time of the current offenses in November 2008, defendant was 21 years old. Although he had never been incarcerated,
defendant had been adjudicated a juvenile offender for a shoplifting incident
that escalated to a robbery. As an
adult, he had been convicted of transporting cocaine for sale and given a
probationary term. Less than eight
months later, while in revoked probation status for his drug conviction, he
armed himself with a firearm and committed the current serious offenses,
thereby putting the community at risk.
We agree with the trial court’s comments that the victims “really did
suffer a traumatic event,†and that defendant “lack[ed] insight,
responsibility, credibility, and empathy for the people whose lives he
irrevocably changed by the decisions he made.â€
In
sum, based on our independent review, we conclude the imposition of the 10-year
firearm enhancement under section 12022.53(b) was neither cruel nor unusual
punishment in this case.
Terms on Counts Two, Three, and Four, and
Upper Term
Firearm
Enhancement
Before sentencing,
both the prosecutor and defense counsel
submitted memorandums addressing sentence.
The People sought an aggregate term of 18 years, eight months. Defense counsel did not proffer a specific
aggregate term. Instead, he argued the
court should impose the low term on count one (attempted robbery), strike the
10-year term for the section 12022.53(b) firearm enhancement as
unconstitutional, and impose concurrent terms for counts two (attempted
robbery), three (attempted robbery), and four (possession of a firearm by a
felon).
At sentencing, the
trial court stated its reasons for its sentencing choices as follows: “I previously denied the Romero motion. And to that
extent, those comments also apply to the decision to not exercise my discretion
to strike the [section 12022.53(b) firearm] enhancement, nor to run the
sentences concurrent, despite [defense counsel’s] invitation to do so. And part of my evaluation was public
safety. I reviewed the preliminary
hearing transcript . . . .
[I have] considered all of the evidence, including the defendant’s
testimony and the probation report. And
based upon the nature of the crime, which there were three victims, and the
fact that the defendant was a felon in possession of a firearm, that he
seemingly lacked responsibility – he’s now taken an inconsistent approach with
trying to be credited for making a decision not to bring a loaded firearm,
which – thank goodness it wasn’t a loaded firearm, or we might not be talking
about an attempted robbery, given the circumstances, but yet to testify and
present to the Court that he had no memory whatsoever regarding this case, that
he entirely blacked out from some supposed alcohol intake the evening before,
that simply lacks insight, responsibility, credibility, and empathy for the
people whose lives he irrevocably changed by the decisions he made. So I did not find the Romero motion to be appropriate. [¶] And unlike so many cases where
the first strike is really, really serious, but the second case is not very
serious . . ., this case is extremely serious and really does not
warrant that type of leniency.â€
The
court then imposed an aggregate term of 18 years, consisting of 14 years for
count one (attempted robbery) (middle term of two years on the substantive
offense, doubled for the prior strike, plus a consecutive term of 10 years for
the related section 12022.53(b) firearm enhancement), plus consecutive terms of
one year, four months (one-third the middle term doubled for the prior strike)
for counts two, three, and four. Because
defendant could not be punished for more than one firearm enhancement, the
court imposed but stayed a 10-year upper term on a section 12022.5 firearm
enhancement related to count one. The
prosecutor dismissed the related firearm enhancements alleged as to counts two
and three. Defense counsel asked the
court for its reasons for imposing the upper term on the stayed firearm
enhancement, “for the record.†The trial
court replied: “[T]here were multiple victims.
And in this particular case, I found it [a] very aggravating
circumstance that not only was a weapon pointed at three different people, and
the person was in possession of the firearm, but also there was a point-blank
range. There was testimony that the gun
actually was direct[ly] located next to the . . . upper part of the
belly of one of the victims . . . . [¶] So based upon the
aggravated circumstances, I would find that the ten years for the [enhancement]
that I am staying is appropriate.â€
Defendant lodged no objection to the court’s statement of reasons. The
court also imposed a concurrent four-year term on the prior drug conviction
after revoking probation on that conviction.
Although the court acknowledged defendant was subject to a separate
sentence for the drug conviction, it decided the sentences in the two cases
should run concurrently because defendant “is a person of young age and there
was quite a bit more opportunity for a greater liability. And certainly I construed it in a fashion, I
think, that was fair to the victims in this case, and recognized that they
really did suffer a traumatic event, but also judicious in recognizing that
[defendant] is a young man and has not previously served a prison
commitment.â€
On
appeal defendant argues the trial court abused its discretion in imposing
consecutive terms on counts two and three (attempted robberies) and count four
(possession of a firearm by a felon). We
disagree, finding the authority on which defendant relies inapposite. Unlike the situations in People v. Deloza (1998) 18 Cal.4th 585, 600, and
815, 821, the trial court in this case understood that consecutive terms were
not mandated as a matter of law. While
the record may support a contrary finding, we see no abuse of discretion in the
court’s ruling that consecutive terms were warranted as the three attempted
robberies constituted “separate acts of violence or threats of violence†(Cal.
Rules of Court, rule 4.425(a)(2)
name="_ftnref23" title="">[23]),
and were not “committed so closely in time and place as to indicate a single
period of aberrant behavior†(Rule 4.425(a)(3)). The trial court could reasonably find
defendant’s attempted robberies were separated by sufficient periods of time to
give him the opportunity to reflect and to cease his criminal behavior, which
he failed to do. (See
407-408 [trial court may impose consecutive sentences when two or more crimes
are transactionally related and each involves a different victim];
363, 368 [trial court acted within its discretion in imposing consecutive
sentences for two assault convictions based on firing two shots a minute apart
at the victim].) The trial court also
could reasonably find defendant’s possession of a firearm as a felon was
“predominately independent†of the attempted robberies. (Rule 4.425(a)(1); see People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1414 [“[c]ommission
of a crime under section 12021 [possession of a firearm by a felon] is complete
once the intent to possess is perfected by possession;†“[w]hat the ex-felon
does with the weapon later is another separate and distinct transaction
undertaken with an additional intent which necessarily is something more than
the mere intent to possess the proscribed weaponâ€].)
Defendant
also mounts a challenge to the sentence arguing that the trial court erred when
it used the same factors to impose both consecutive terms on the substantive
offenses and the upper term on the stayed firearm enhancement. However, this claim of error is not properly
before us. At the time of sentencing,
the trial court stated its reasons for refusing to impose concurrent terms on
counts two through four. After imposing
a mandatory and consecutive 10-year term on the section 12022.53(b) firearm
enhancement, the court indicated it would impose but stay an upper term of 10
years on the section 12022.5 firearm enhancement. (See § 12022.53, subds. (f), (j); Rule
4.447.)
title="">[24] In response to defense counsel’s request, the
trial court stated its reasons for imposing the upper term on the stayed
firearm enhancement. Had counsel
objected to the reasons on the ground now asserted on appeal — the purported
use of the same factors — the trial court could have clarified its reasons for
imposing the upper term on the stayed firearm enhancement and the consecutive
terms on the substantive offenses.
Consequently, we reject defendant’s contentions that his trial counsel
did not have a meaningful opportunity to object and that any objection would have
been futile. In the absence of an
objection, defendant has forfeited his appellate contention. (People
v. Scott (1994) 9 Cal.4th 331, 353.)
In
all events, defendant has failed to demonstrate how he was prejudiced by the
trial court’s sentencing choices. (See
822; People v. Yim (2007) 152
Cal.App.4th 366, 369; People v. Lamb
(1988) 206 Cal.App.3d 397, 401; see Rule 4.420(b) [trial court is not limited
by the aggravating factors listed in the court rules, but may rely on “any
other factor reasonably related to the sentencing decisionâ€].) The trial court’s articulation of several
aggravating factors for choosing to impose consecutive terms on the substantive
offenses and an upper term on the stayed firearm enhancement did not exceed
“the bounds of reason, all of the circumstances being considered.†(People
v. Giminez (1975) 14 Cal.3d 68, 72.)
We are confident that if we remanded the matter for resentencing, the
trial court would impose the same sentences without relying on any purported
use of the same aggravating factors.
(See People v. Osband (1996)
13 Cal.4th 622, 732; People v. Douglas
(1995) 36 Cal.App.4th 1681, 1691.)
E. Presentence Conduct Credit on Prior Drug Conviction
At the time of his
arrest on November 28, 2008, defendant was out of custody on probation in
“revoked status†on a prior drug conviction.
While in custody on the November 28, 2008, offenses, defendant was
concurrently in custody based on a violation of probation petition filed in the
drug conviction case. After the jury
returned its verdict on the November 28, 2008, offenses, the trial court
found defendant had violated his probationary term imposed on the prior drug
conviction.
On
January 14, 2011, the court sentenced defendant on the convictions
resulting from the November 28, 2008, offenses and his prior drug
conviction. For his prior drug
conviction, the court calculated defendant’s presentence credit under section
4019 that was in effect before January 25, 2010, which gave one-third time
off – for every four days actually served, six days were deemed served. Thus, defendant was awarded 1,272 days on the
probation violation case: 848 actual days plus 424 days for conduct credit.
On
appeal defendant argues he is entitled to an additional 424 days conduct credit
for time served from November 28, 2008 until January 14, 2011 for the
prior drug conviction, pursuant to former section 4019, subdivision (g), which
became operative on January 25, 2010.
(Stats. 2009-2010, ch. 28 (Third Extra. Sess.), § 50.)
entitled to receive one day of conduct credit for every day of actual
custody. (Ibid.)
name="_ftnref27" title="">[27] However, since the filing of the briefs in
this case, our Supreme Court has concluded the January 25, 2010 amendment
to section 4019 should be applied prospectively only. (People
v. Brown (2012) 54 Cal.4th 314, 318.)
“To apply former section 4019 prospectively necessarily means that
prisoners whose custody overlapped the statute’s operative date (Jan. 25, 2010)
earned credit at two different rates.†(
credit on the prio
