P. v. Mosby

Filed 10/4/07 P. v. Mosby CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Cory W. Mosby appeals his convictions following a jury trial for carjacking, kidnapping, assault, and robbery, with enhancements for personal use of a firearm and an assault weapon. He argues that a pretrial photo lineup was unduly suggestive, the trial court made erroneous evidentiary rulings, there was insufficient evidence that he used an assault weapon, the imposition of separate punishments for carjacking and robbery violated Penal Code section 654,^[1]and the imposition of upper term sentences violated his federal constitutional rights to jury trial and due process. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bob Pierce was in the Bay Area on business. He contacted an escort service that sent Krystal Dejulio to his hotel room. While there, Dejulio received a telephone call from Ryan Hatcher, from whom she had bought marijuana a few days earlier, when she had also met defendant.^[2] Hatcher offered Dejulio some marijuana, and Pierce agreed to go for a ride with Dejulio to get it. Following Hatchers directions, Dejulio and Pierce drove to the Mardi Gras bar in Redwood City.

When Dejulio and Pierce got out of the car, they were approached by Hatcher and defendant, who wore a red sweatshirt with the hood up. Hatcher said they had to go around the corner to pick up the marijuana, and his friend would accompany them. Once they left the bar, Hatcher did not speak again. Dejulio drove, Pierce rode in the front passenger seat, and Hatcher and defendant sat in the back. Defendant directed Dejulio to drive to two different locations where he exited and they waited for him to return to the car.

After defendant got back into the car at the second location, Pierce and Dejulio suddenly noticed the long black barrel of a gun sticking out above the console between the driver and passenger seats. Defendant said, Im sorry this has to happen to you. We are just going to have to drop this off, and if everything goes as planned, then you guys will be leaving tonight. We are just going to go around the corner to drop it off. Defendant told Dejulio to continue down the alley, and directed her to drive toward the hills. When Pierce said something that angered defendant, defendant punched him in the back of the head. Dejulio told defendant he could take the car and let her and Pierce out, and defendant pointed the gun at the back of her head and twisted her hair around the barrel. When Dejulio told Hatcher he was at fault for allowing this to happen and remaining silent, defendant screamed, Shut the fuck up. Dont talk to him. Defendant told Dejulio to shut up and keep driving: [Youre] going to drive wherever [I] want [you] to go. Bitch. And thats that. Defendant also screamed at Dejulio: Women dont talk. Men talk only. Shut up, bitch. You know, I got 36 shells in this gun. Im not afraid to use it. . . . [] Let me take the safety off. Now Im ready.

Dejulio drove as directed, and pulled into a parking lot in a dark wooded area at Canada College, facing an embankment. Dejulio was afraid she would be shot. Pierce thought he would die in that parking lot. Defendant ordered Dejulio and Pierce out of the car, and told them to walk towards the embankment in front of the car headlights. Defendant demanded Pierces wallet, and struck him on his left temple with the rifle when Pierce suggested that defendant take the cash and let Pierce keep his wallet. Pierce then gave his wallet to defendant, who threw it toward Hatcher.

Defendant told Dejulio and Pierce to take off their clothes, and Hatcher threw Pierces clothes in a tree. Defendant ordered Dejulio and Pierce to lie on the ground on their stomachs. After he pat searched Dejulio, defendant ordered both victims to stand and walk to the edge of the nearby cliff. Pierce refused because he was afraid that if he did so, defendant would shoot him in the back. Defendant again struck Pierce in the temple with the gun and drew blood.

Defendant again ordered both victims to lie face down. When Pierce raised his head and looked at defendant, he struck the back of Pierces head with the gun barrel, again drawing blood. Pierce put his head down and waited to be shot. Defendant ordered Dejulio and Pierce to start counting, and yelled to Hatcher to get the car ready. Defendant walked backwards toward the car, holding the rifle, and got into the front passenger seat. The car drove off and was recovered at the scene of a single-car accident at 1:40 a.m. Fingerprints from the car matched defendants and Hatchers. The gun used in the offenses was not recovered.

Once defendant and Hatcher were gone, Dejulio called 911 on her cell phone. Police responded and took statements from both victims. An officer attempted to retrace the route defendant ordered Dejulio to drive. Dejulio took the officer from the Mardi Gras bar to an apartment complex on Madison, and then to an alley behind 542 Vera Street, where they found Dejulios purse and other personal items from her car.

Dejulio described the gunman as 22 years old, 5 foot 10 inches tall, white or light-skinned Hispanic, with very short blondish hair, a thin build and possibly a thin goatee. Dejulio told police that during the carjacking defendant used her cell phone to dial and locate a cell phone he had misplaced in her car, and her cell phone showed the number defendant had called.^[3]

Pierce described the gunman as 24 to 25 years old, white, 6 feet tall, 180 pounds, with short reddish-brown hair, facial freckles, and no facial hair. He wore a red sweatshirt with a hood, and gray sweat pants. Pierce helped another police officer retrace the crime route. They started at the Mardi Gras bar, and Pierce also took the officer to the alley behind 542 Vera Street.

Detective Eric Acha was assigned to investigate the case, and focused first on William Phillips as a suspect, based on the similarity of his tattoos to those Dejulio described previously seeing on defendant and on Achas prior contacts with Phillips near 542 Vera Street. But when shown a photo lineup including Phillipss photo, Dejulio did not make an identification. When Acha went to 542 Vera Street, he found a tank top, of the style Dejulio described the gunman as wearing, in the alley. When Acha went to the motel where Dejulio had previously met both suspects, he obtained a copy of a drivers license for Ryan Hatcher, who generally matched the description of the unarmed suspect. Acha also learned that the subscriber of the cell phone number that the gunman dialed on Dejulios cell phone listed the same street address and date of birth as Hatchers drivers license, although there was a different name on the account. When he ran Hatchers name through the police computer, Acha discovered that Hatcher was previously contacted by police in the company of defendant.^[4] Acha also had previous contact with defendant, and focused on him as the second suspect.

When shown a photo of defendant, the bartender at the Mardi Gras confirmed he was at the bar on the night of the carjacking, and wore a red hooded sweatshirt. On July 31, Dejulio made positive photo lineup identifications of defendant and Hatcher as her assailants, stating she was 100 percent sure, no doubt. When Acha e-mailed the photo lineups to Pierce at his Southern California workplace shortly thereafter, Pierce immediately identified defendant as the gunman, without any doubt.^[5]

On August 4, police executed a search warrant at the duplex at 542 Vera Street. In the garage they found two bags of ammunition compatible with use in an assault weapon, including Russian bullets developed with the AK-47. Inside one of the apartments, they found a red hooded sweatshirt. Defendant was arrested and his interview with Detective Acha was videotaped. Defendant admitted he and a friend named JJ were at the Mardi Gras bar and said that JJ had a woman and another dude pick them up in a car. They were going to go get them weed or something.^[6] Defendant was very drunk and could not remember what happened after that, but heard hella stories and that shit went crazy. Defendant repeatedly offered to cooperate with police to bring people down in exchange for leniency in this case.

Police obtained records of multiple phone calls that defendant made to Hatcher on the day defendant was taken into custody. During the first call, defendant left a message telling Hatcher, about that girl Natasha yeah, um you should, you should get rid of that girl man. Shes no good for you, you know . . . . During the second call, defendant told Hatcher, theyre looking for you bro, and advised him to cancel his phone or change the number fast. During a later call, defendant asked if Natasha was still around, and suggested that Hatcher go fishing with Natasha. During the last call, defendant asked Hatcher, You guys went fishin? and Hatcher answered, She caught a big one. Defendant responded, Thats cool, and advised Hatcher to go to Mexico until his money ran out.^[7]

Defendant was charged with two counts of kidnapping during the commission of a carjacking, carjacking, assault with a firearm, and robbery, with allegations that he personally used a firearm and an assault weapon. Two prior convictions and a prior prison term were also alleged.

The trial court denied defendants motion to suppress Pierces photo identification of him as the gunman, and concluded the lineup was not unduly suggestive, but excluded Pierces in-court identification of defendant because Detective Acha had told Pierce at the time of the preliminary hearing that he picked the right person. At trial defendant argued he was falsely identified as the perpetrator.

The jury found defendant not guilty of the two counts of kidnapping during the commission of a carjacking, but guilty of the lesser included offenses of carjacking and kidnapping, with findings that he personally used a firearm and an assault weapon. The jury also convicted defendant of carjacking and robbery, with personal use of a firearm and assault weapon, and of assault with a firearm with personal use of an assault weapon. The court found true the two prior convictions and a prior prison term.

The court pronounced sentence on January 20, 2006, but later recalled the sentence because sentence had not been imposed on all counts and enhancements. Defendant was resentenced on March 3, 2006. The court struck a prior strike, denied probation, and sentenced defendant to a total term of 31 years and 4 months in prison. On several counts, the court imposed upper term sentences. On count one, the court imposed the upper term of nine years for the lesser included offense of carjacking, plus 10 years for personal use of a firearm, with a stayed term for use of an assault weapon. The court stayed the upper term for kidnapping and the related terms for use of a firearm and an assault weapon. On count three, the court stayed the upper term for carjacking and the related terms for use of a firearm and an assault weapon. Defendant timely appealed.

DISCUSSION

A. Pretrial Photo Lineup

Defendant contends the photo lineup where Pierce identified him as the gunman was unduly suggestive and unreliable. Defendant bases his argument on two characteristics of the lineup. First, he says the lineup was suggestive because he is the only subject shown to be wearing any red clothing, and Pierce described the perpetrator to be wearing a red sweatshirt. His second point about the lineup is that each subject is depicted above a seven digit number, and since the number under defendants picture is greater than the number under the other subjects, the enumeration suggested defendants picture was the most recently obtained by police. We disagree with defendant that either of these factors is significant.

In order to determine whether the admission of identification evidence violates a defendants right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.] [] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citations.] The question is whether anything caused defendant to stand out from the others in a way that would suggest the witness should select him.  (People v. Cunningham (2001) 25 Cal.4th 926, 989-990.)

A photo lineup violates due process when it is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.  (People v. Blair (1979) 25 Cal.3d 640, 659.) We independently review the trial courts ruling that a pretrial identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 609.)

The photo lineup where Pierce identified defendant took place a few days after the robbery. Detective Acha e-mailed the photo lineup to Pierce at his office in Southern California, and faxed him an admonition form that he also read to Pierce over the phone. Detective Acha remained on the line with Pierce throughout the identification process, and stated that Pierce was fairly certain the person he identified was the gunman. Pierce testified: As soon as that photo lineup came up, I knew exactly which one of the individuals it was. And I even pointed out that . . . this picture was not in the lineup I was shown the other night. Pierce recognized the face right off the bat. Pierce testified he was sure of who the gunman was. [He] was not positive as to the other defendant. [He] believed strongly, but it wasnt the same, Im positive thats the guy. 

Pierce testified there was nothing about the clothing of the person he identified during the photo lineup that caught his attention, and the clothing did not resemble what Pierce saw the gunman wearing on the night of the incident.^[8] The mere fact that defendants wearing of an item of apparel of the same color as that recalled by the witnessparticularly a different item of apparel . . . does not, without more, make the lineup unduly suggestive. (People v. DeSantis (1992) 2 Cal.4th 1198, 1223; see also People v. Harris (1971) 18 Cal.App.3d 1, 6 [[t]he mere fact that defendant was wearing the same [bright yellow] color pants worn by the robber did not make the lineup unfair].)

Nor has defendant shown that the photo lineup was unduly suggestive because his photo was labeled with a higher number than the others, even assuming that argument was not waived by defendants failure to raise it in the trial court. Unlike the case cited by defendant, all the photos in the lineup shown to Pierce were numbered. (People v. Carlos (2006) 138 Cal.App.4th 907, 912 [photo lineup found unduly and unnecessarily suggestive where the defendants was the only photo labeled with a name and an identification number].) Defendant here cites no support for his speculation that [a] reasonable inference . . . might be drawn . . . that [his] photo is more recent than the others, and that it is more recent because it was made specially for this caseand thus that the actual subject of this photospread was [defendant]. Nor does the record support defendants suggestion that Pierce drew such an inference, or that he relied in any way on the number when making his identification. Instead, the record supports the trial courts determination that Pierce identified defendant in a photo lineup that was not unduly suggestive.^[9] (See People v. DeSantis, supra, 2 Cal.4th at pp. 1222-1223; see also People v. Holt (1972) 28 Cal.App.3d 343, 350 [a photographic identification is sufficiently neutral where the persons in the photographs are similar in age, complexion, physical features and build . . . and where the photograph of the accused does not stand out from the rest]; People v. West (1984) 154 Cal.App.3d 100, 105 [minor variations in . . . photographic lineups do not render them unduly suggestive].)

B. Exclusion of Evidence of Alleged Motive for Police Bias

Defendant argues the trial court erred when it excluded evidence that he was previously arrested for drugs in the company of a juvenile who was the daughter of a Redwood City police officer. Defendant contends his arrest in the company of a policemans daughter biased the police against him and caused them to focus on him as a suspect in this case, instead of pursuing other possible leads.

In the prior incident, a deputy sheriff approached defendant in a car that also held another man and a juvenile female. Marijuana and suspected ecstasy found in the juvenile females purse were determined to have come from defendant. The juvenile was released to her father, who was a member of the Redwood City Police Department. The father testified at trial that he did not tell people at work about his daughters case, and that he was not involved in the core investigation of defendants case, but participated in serving one of the search warrants and helped look for defendants accomplice. He thought he learned defendant was a suspect when the rest of the department was notified. Detective Acha testified he did not work with the girls father in attempting to identify suspects in defendants case, and only told the father defendant was a suspect after Pierce identified him in the e-mailed photo lineup.

The court found the officers credible, and considered it pure speculation, frankly, that [the juveniles father], in his displeasure with [defendant], would have or did falselyor the Redwood City Police Departmentfocus on [defendant] because of this relatively minor incident involving [defendant] and his daughter. The court found the evidence was not sufficiently relevant or germane to these proceedings and the probative value is clearly outweighed by the potential prejudicial effect, or, more importantly, an undue consumption of time. Accordingly, the court excluded the evidence pursuant to Evidence Code section 352.

Defendant has not shown the court abused its discretion.  [T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad  and  the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.  (People v. Ayala (2000) 23 Cal.4th 225, 301.)

The cases defendant cites to argue the court erred in excluding the evidence of the prior incident are not on point. (See Holmes v. South Carolina (2006) 547 U.S. 319 [126 S.Ct. 1727, 1733-1735] [overturning South Carolina law that allowed exclusion of evidence of third party guilt regardless of probative value when the governments evidence was strong, but acknowledging rule that such evidence may be excluded where it does not sufficiently connect the other person to the crime, as for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendants trial ]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [finding error when trial court barred all cross-examination regarding witnesss agreement to speak with the prosecutor in exchange for dismissal of an unrelated criminal charge].)

The juveniles father had minimal involvement in the investigation of defendants case, and the police reasonably pursued various leads in this case. Most pointed to defendant as a suspect. The court did not abuse its discretion in excluding evidence of defendants prior contact with the officers daughter under Evidence Code section 352. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Hall (1986) 41 Cal.3d 826, 834.) Nor has defendant shown it is reasonably probable the verdict would have been more favorable to him if evidence of the prior incident had been presented. (See People v. Fudge (1994) 7 Cal.4th 1075, 1103-1104.)

C. Evidentiary Rulings Regarding Defendants Statement to Police

Defendant argues the trial court erred when it allowed the prosecution to introduce evidence that in his interview with police, defendant offered to assist them in other cases, but excluded from evidence a portion of the interview when police told defendant this is a third strike for you. Defendant contends the exclusion of the reference to a third strike impaired his due process right to present a defense, and violated Evidence Code section 356 which provides: Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.

Defendants due process argument is based upon the authority of Crane v. Kentucky (1986) 476 U.S. 683. Crane held that Whether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.  (Id. at pp. 689-690.) But Crane may be easily distinguished. Crane involved a case largely built upon a 16 year olds confession to murder. The defendant sought to introduce evidence that the confession was obtained under oppressive and coercive circumstances in order to  cast doubt on its credibility.  (Id. at p. 685.) The United States Supreme Court concluded that the blanket exclusion of evidence related to the circumstances of the minors confession deprived him of a meaningful opportunity to present a complete defense. (Id. at p. 690.) This case is very different from Crane.

First of all, this defendant did not confess. Moreover, there was no blanket exclusion of the circumstances surrounding defendants interview and his offer of cooperation. The videotape and transcript of defendants interview that were admitted into evidence were edited, but included a statement Detective Acha made to defendant before he offered to cooperate with police. The detective told defendant, I need to know what the fuck happened out there cause this is some serious shit. This is the rest of your life were talking about here. The prosecution argued that defendants offer to cooperate with police was evidence of his consciousness of guilt.^[10] This record does not reflect the kind of blanket exclusion of evidence surrounding a police interrogation that triggers a concern that defendant may have been deprived of an opportunity to present a complete defense.

The jury was aware that defendant knew he was facing serious consequences for his suspected involvement in these crimes, and the exclusion of the detectives reference to three strikes sentencing was consistent with the courts earlier ruling that barred mention in front of the jury of possible sentencing consequences to defendant. (See People v. Nichols (1997) 54 Cal.App.4th 21, 24 [court properly admonished jury not to consider punishment in its deliberations].) The challenged ruling was within the trial courts discretion to exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.  (Crane v. Kentucky, supra, 476 U.S. at pp. 689-690.) Exclusion of the detectives reference to a third strike from defendants interview with police did not violate defendants right to due process.

Neither did the exclusion of the detectives reference to a third strike violate Evidence Code section 356. When part of a conversation is in evidence, section 356 generally permits a party to introduce other portions of the conversation which are  on the same subject or which are necessary for understanding of the statements already introduced. (People v. Breaux (1991) 1 Cal.4th 281, 302.)

Defendant claims the court erred when it excluded the detectives reference to three strikes sentencing under Evidence Code section 356, because it was part of a conversation on the same subject and the reference to three strikes pressured defendant to offer his cooperation in other cases. But  [t]he rule is not applied mechanically to permit the whole of a transaction to come in without regard to its competency or relevancy . . . .  (People v. Williams (1975) 13 Cal.3d 559, 565.) Defendant has not shown that admission of the officers reference to three strikes sentencing was necessary for understanding of the statements already introduced. (People v.Breaux, supra, 1 Cal.4th at p. 302.) Nor has defendant shown that a more favorable outcome was reasonably probable if the court had admitted the reference to three strikes sentencing. (See Williams, supra, at p. 566; see also People v. Arias (1996) 13 Cal.4th 92, 156-157.) It was not error for the court to exclude Detective Achas statement about a third strike sentence from the tape and transcript of defendants interview with police.

D. Sufficiency of the Evidence that Defendant Used an Assault Weapon

Defendant argues the evidence was insufficient to support the jurys findings that he used an assault weapon.^[11] We review the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible and of solid value. (See People v. Stanley (1995) 10 Cal.4th 764, 792-793.) To prove the finding that defendant used an assault weapon, the prosecution had to prove defendants weapon was of the type specified in section 12276 or section 12276.1. ( 12022.5, subd. (b).)

Section 12276 defines assault weapons by brand and model names, including [a]ll AK series including, but not limited to, the [listed] models. (Subd. (a)(1).) Section 12276.1 defines the class of assault weapons by listing specific characteristics of firearms that in combination on a single firearm constitute a prohibited assault weapon. Relevant characteristics of a firearm that may be an assault weapon under section 12276.1, subdivision (a) include: (1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following: [] (A) A pistol grip that protrudes conspicuously beneath the action of the weapon. [] . . . [] (2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.

Both victims testified defendants weapon had a banana clip. At trial, a police expert testified that banana clips are only used with assault weapons, as far as he was aware. Dejulio, who had seen a lot of guns that belonged to her grandfather, said defendants weapon was not a regular rifle, and it looked like an AK-47, which she was familiar with from movies and television. When shown a picture of an AK-47 rifle, Dejulio said defendants gun had a longer barrel and a smaller fitting at the barrels end, which got caught in her hair.

Pierce testified he was familiar with military weaponry. He trained with M-14s and fired M-16s while in the Air Force. He said the rifle used in the carjacking looked like an assault weapon, and its clip was almost identical to that shown in the prosecutors photo of an AK-47.^[12] A police officer qualified as an expert in assault weapons testified that ammunition compatible with an AK-47 assault rifle was found at the Vera Street address, where defendant apparently retrieved the gun, and there are very, very, very few non-assault weapons in which the ammunition could be used. Substantial evidence supported the jurys findings that defendant personally used an assault weapon. (See People v. Stanley, supra, 10 Cal.4th at p. 792; People v. Bean (1988) 46 Cal.3d 919, 932-933.)

E. Section 654

Defendant argues that imposition of separate punishments for carjacking and robbery violated section 654. Section 654, subdivision (a) provides in pertinent part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. But when it sentenced defendant, the court said: [The robbery] was a decision made after the carjacking and the purpose for which you ordered the people to leave. I believe that your only purpose was to get the car . . . as eviden[ced] by what took place. You could have stolen Mr. Pierces property earlier. And I dont believe it was part and parcel of the circumstances involved with the original carjacking. Because if it were, you would have been attempting to steal property from the other female victim as well. The court found the robbery was independent of the carjacking and that finding was supported by substantial evidence. (See People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408; People v. Nelson (1989) 211 Cal.App.3d 634, 638.) Thus section 654 does not prohibit punishment for both convictions. (See People v. Perez (1979) 23 Cal.3d 545, 551 [defendant may be punished for independent violations committed in pursuit of multiple criminal objectives even though the violations were parts of an otherwise indivisible course of conduct].)

The case on which defendant relies is not on point. In People v. Dominguez (1995) 38 Cal.App.4th 410, the defendant entered the victims van, placed a metallic object against his neck, and demanded everything he had. (Id. at p. 414.) The victim gave defendant his jewelry and ran away. (Id. at pp. 414-415.) The court held the same act was essential to [the takings of the jewelry and the van] and thus [was] not separately punishable under Penal Code section 654. (Id. at p. 420.) Here, by contrast, the court found defendant first committed the carjacking when he took control of the car and directed it toward a secluded location, and only later decided to steal Pierces wallet. The evidence supports the courts conclusion that the taking of Dejulios car and Pierces wallet resulted from independent criminal objectives. Defendant first asserted control over the car in the alley and directed Dejulio to drive to an isolated dark parking lot, where he ordered the victims out of the car. Defendant then demanded Pierces wallet and hit him with the gun when Pierce offered to give defendant the cash instead.^[13] The evidence supports the trial courts conclusion that the carjacking and the robbery were separated in time and place, and separate punishment was not barred by section 654. (See People v. Green, supra, 50 Cal.App.4th at p. 1085.)

F. Imposition of Upper Term Sentences

The court sentenced defendant to the upper term on his conviction for carjacking as a lesser included offense of count one, kidnapping during commission of a carjacking. He claims the upper term sentence violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296. Shortly after defendants opening brief was filed, the United States Supreme Court held in Cunningham v. California (2007) 127 S.Ct. 856 that Californias determinate sentencing law violated a defendants right to jury trial because it permitted trial judges to determine facts used to impose an upper term sentence by a preponderance of the evidence. (Id. at pp. 868, 871.)

More recently, the California Supreme Court held in People v. Black (2007) 41 Cal.4th 799 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. (Id. at p. 816.) In Black, the court concluded the defendants criminal history rendered him eligible for the upper term sentence when the trial court found that the defendants prior convictions were numerous and of increasing seriousness. (Id. at pp. 812, 818.) In this case, the court based its decision upon several aspects of defendants criminal history: he had served a prior prison term; he was on parole when these offenses occurred; and his performance on parole and probation had been unsatisfactory. Any one of these recidivist factors was sufficient to constitutionally sentence defendant to the upper term.

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Horner, J.^*

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Dejulio knew Hatcher by the name JJ.

^[3] Dejulio also told the officer that defendant had the rifle when he got into the car after the first stop and described it as similar to the semiautomatic weapons the police carry.

^[4] At trial, another police officer testified that he saw defendant and Hatcher in the alley at 542 Vera Street a few weeks before the carjacking. The prosecution also produced photos that showed defendant and others in the same alley.

^[5] In the second set of photos, Pierce identified another man (not Hatcher) as the man who drove the car away, but Pierce testified he was not positive about that particular identification.

^[6] Defendant denied having a friend named Ryan, but said the name Ryan Hatcher was familiar and that might be JJs last name. When shown a photo defendant identified Hatcher. Defendant claimed another friend, Mike Borg, was also present at the Mardi Gras that evening and was wearing a sweater or something with a hood. Defendant said they all got into a car driven by a girl with another man present, but defendant claimed he was dropped off and later heard Borg and JJ took some money from them or something. Earlier, defendant said Borg and JJ left him at the bar for a couple of hours, and then dropped him off at a friends house.

^[7] At trial, the prosecutor argued that when defendant talked about Natasha going fishing he was telling Hatcher to get rid of the Russian assault weapon used in the carjacking. Hatcher was arrested a few days after these conversations with defendant, and his case was resolved by plea before trial.

^[8] In the photo lineup, defendant was wearing what the court described as a reddish or rather rusty-looking shirt. . . . And then either a jacket or maybe a velour or some type of outerwear . . . . Defense counsel conceded the color of defendants shirt was not the football field on game day, but its clearly reddish. The outerwear was described by Detective Acha as some type of black sweater or jacket [with] a red collared shirt underneath. Detective Acha also testified that Pierce did not refer to the color of defendants shirt when he identified his photo in the lineup. Defendant note[s] that it is extremely unlikely that all 12 members of this or any jury would be oblivious to the gang significance of the color red, and that marking defendant with this particular color was therefore grossly unfair and suggestive for that additional reason. The trial court excluded any evidence to suggest defendant was associated with gang activity, and defendant cites no authority to support the suggestion that the color of a subjects clothing, standing alone, is sufficient to render a photo lineup suggestive and unreliable.

^[9] We therefore do not address the Peoples contentions that even if the photo lineup was suggestive, the identification was otherwise reliable, and that any error was harmless. (See People v. Ochoa (1998) 19 Cal.4th 353, 412; People v. DeSantis, supra, 2 Cal.4th at p. 1223, fn. 5.)

^[10] Towards the end of the edited interview, for example, defendant asked, Man, is there any way I can get out of this? Theres gotta be a way I can walk away from this today and help you guys out, right? Earlier, after Detective Acha told defendant they were talking about the rest of his life, defendant said: But look man, Im gonna be honest [BREAK] we can work something out? And I can guarantee you that I will bring you every, I will bring them, I will bring people down for you. No joke, and I can start off right now. I mean this like off the record type shit. Defendant also stated, you know what I mean, theres gotta be something we can do to work out man. That I can help you guys out in the long run. Cause theres been incidences thats been happenin out here that I, I know about. Everybody comes to me and tells me things because they consider me a big homie here. Later, defendant offered, Let me uh, let me bring some people down for you cause Im telling you I know theres some murder suspects out here. I know, I know information about that.

^[11] Defendant acknowledges that the trial court struck the punishment on these findings, based on the rule barring punishment on the same count under both sections 12022.5 and 12022.53. (See People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-713.) Defendant nevertheless challenges the findings on the grounds that they may have affected the courts sentencing choices on other counts, and they may operate to defendants prejudice in the future. The People point out that the court in fact imposed a two-year term for personal use of an assault weapon as an enhancement to the conviction for assault with a deadly weapon, although it stayed punishment on the other allegations of assault weapon use.

^[12] In arguing against the prosecutions use of photos of assault rifles at trial, defense counsel stated: Mr. Pierce has already testified that he was in the military and has personal experience with assault weapons and he has, in fact, fired assault weapons. [] If the jury believes his testimony, they will likely conclude that the assault weapon allegation is true. I dont think this . . . is substantially more probative on that point than Mr. Pierces testimony would be.

^[13] At the initial sentencing hearing, the court stated: This court believes that the [assault with a firearm] and the [robbery] are not encompassed within the 654 prohibition. I find that those are separate instances, separate decisions, independent of your desire to steal the car, that you decided to take the wallet from Mr. Pierce and when you struck him three times because he refused to comply with your orders to move and/or lie down and turn around. He wanted to face you.

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.