P. v. Sheridan
Filed 1/31/14 P. v. Sheridan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
KRISTOPHER DOMINIQUE SHERIDAN,
Defendant
and Appellant.
E058584
(Super.Ct.No.
FSB1205375)
OPINION
APPEAL from the
IV, Judges. Affirmed.
James R. Bostwick, Jr., under
appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Respondent.
A jury convicted defendant
Kristopher Dominque Sheridan of robbery (count 1 – Pen. Code, § 211)
by a felon (count 4 – § 29800, subd. (a)).
true allegations defendant was personally armed with a handgun in his commission
of the count 1 offense (§ 12022.53, subd. (b)) and had suffered two prior
prison terms (§ 667.5, subd. (b)). The
court sentenced defendant to an aggregate, determinate term of 17 years’
imprisonment consisting of the following: the upper term of five years on the
count 1 offense, a consecutive 10 years on the personal-use enhancement, and
consecutive one year terms on each of the two prior prison terms.
After defendant’s trial counsel
filed the notice of appeal, this court
appointed counsel to represent defendant.
Counsel has filed a brief under
the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v.
California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493],
setting forth a statement of the case, a brief statement of the facts, and
identifying six potentially arguable issues:
1) whether the trial court violated defendant’s due process right to a
fair trial in requiring the defendant to be shackled during the first day of
trial; 2) whether the prosecution committed prejudicial, burden-shifting
misconduct by arguing there was no evidence defendant was shot in the back; 3)
whether the court prejudicially erred by overruling defendant’s objection to the
People’s ostensible misconduct; 4) whether the court abused its discretion by
imposing the upper term on count 1; 5) whether substantial evidence supported
the jury’s true finding defendant had served two, separate prior prison terms
for which he failed to remain free from custody for five years; and 6) whether
the court erred in finding a vehicle was used in the commission of defendant’s
offenses and, thereby, revoking his driver’s license. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On December 4, 2012, Ana Godinez was working as the cashier at Pronto Pizza in the City
of San Bernardino. Defendant, wearing a
sweater with a hood, sunglasses, and a bandana, jumped over the counter; walked
over to her; grabbed her shoulder; pulled her toward the cash registers while
guiding her with a black, semiautomatic handgun; told her to open the register;
and pointed the gun at her. She opened
the register and helped defendant remove its contents, which she placed in a
brown plastic bag defendant gave her.
Defendant then told her to open another register; Godinez informed him
there was no money in the other register; defendant ran off.
Jennifer Sanchez, who was in the
back making pizzas, witnessed the robbery.
She was less than five feet from defendant during the robbery. Soledad Sandoval, who was also working in the
back, likewise witnessed the robbery.
Sandoval went inside the office to look for the alarm, but could not
find it.
Gerardo Pena Chavez,
the store manager, also observed the robbery.
Chavez pressed the panic button, ran outside, and called the
police. While Chavez was on the phone,
he saw a police officer on the street corner and ran to inform him of the
robbery.
title="">[3]
James Beach, a patrol sergeant with
the San Bernardino Police
Department, was on patrol that evening with his partner, reserve officer Mike
Eby. Eby told Beach they were being
flagged down. Two women pointed at the
fleeing man. Beach and Eby noticed a
man, whom they later identified as defendant, wearing dark clothing with a
hoodie running away from Pronto Pizza with a gun in his hand. Beach chased after defendant in his vehicle;
he pulled alongside defendant as defendant ran.
Beach pointed his gun at defendant and yelled repeatedly through the
open window of the patrol vehicle for defendant to drop the gun.
Eventually, Beach cut off defendant
with his patrol vehicle; defendant started to jump over a rod iron fence. While going over the fence, the black,
semiautomatic pistol held by defendant was pointed towards Beach; Beach thought
defendant was going to shoot him. Beach
fired his gun at defendant six times.
Defendant fell over the side of the fence; a bag dropped out of his
waist.
Eby exited his vehicle and kicked
defendant’s gun away from defendant’s hands.
Beach exited the patrol vehicle and assisted other officers who arrived
on the scene to arrest defendant.
San Bernardino Police Officer Joshua
Cogswell, who assisted in the arrest of defendant, followed the ambulance which
took defendant to the hospital. At the
hospital, he observed two gunshot wounds to defendant’s left hand and bandaged
injuries to defendant’s thigh. To
Cogswell’s knowledge, defendant sustained no
San
Bernardino Police Detective Brian Leis was assigned to assist in the
investigation of the robbery. He
executed a search of a vehicle found at the scene. Inside the vehicle he found a Metro PCS phone
contract in defendant’s name. Soledad testified
more than $700 in cash was missing from the register. She could not reconcile the credit card
purchases made on the register.
Detective Marco Granado
of the San Bernardino Police Department was called in to assist with the investigation
of the officer-involved shooting. At the
scene, he found six spent nine-millimeter shell casings which were fired from Sergeant Beach’s
weapon. Granado located a Bersa, .380-caliber
semiautomatic firearm which had six rounds in the magazine, but no chambered
round. A bag containing $719.25 in cash
and credit card receipts from Pronto Pizza was also found. A black hooded sweatshirt, black sunglasses,
and gloves were additionally discovered.
Pronto Pizza had 13 to 14
surveillance cameras covering both the inside and outside of the building. During trial,
the prosecutor played video of at least eight separate camera angles from the
surveillance to the jury, showing both the robbery and defendant’s flight from
the building.
On March
4, 2013, Paul Larson, a deputy sheriff with
the San Bernardino Sheriff’s Department, rolled eight of defendant’s
fingerprints on a card.
name="_ftnref5" title="">[5] On March 5, 2013, Cathi Ringstad, a fingerprint examiner for the San Bernardino Sheriff’s
Department, compared the fingerprints on the card rolled by Larson with those
contained in two section 969(b) packets; the prints matched. Supervising San Bernardino Deputy District
reflected in one section 969(b) packet, defendant had been convicted on April
30, 2004, of bringing or sending contraband onto the grounds of a Youth
Authority Institution (Welf. & Inst. Code, § 1001.5). The court sentenced defendant to prison for
16 months. Defendant was released on
parole on August
17, 2005.
San Bernardino Deputy District Attorney Jason Anderson testified he
prosecuted a case in which defendant was convicted in July 2011, of felony
possession of a firearm by a drug addict previously convicted of a felony
(former § 12021, subd. (a)(1)), for which he had been sentenced to three years’
incarceration. Dowd also testified another
section 969(b) packet reflected defendant had been convicted of felony
possession of a firearm by a drug addict previously convicted of a felony
(former § 12021, subd. (a)(1)) on July 19, 2011,
and was sentenced to three years’ incarceration on July 20, 2011.
title="">[7] He testified defendant was
discharged on parole on June 12, 2012.
Prior to voir dire, the court stated it had
been informed defendant had refused to dress for trial. Defendant refused to respond to questions
from the court regarding defendant’s disinclination to dress for trial. The court noted, “It’s also my understanding
. . . that [defendant] has elected not to have his waist chains and ankle shackles
removed. He asked that the deputy not
remove them.†The court stated “he is
welcome to change into his clothes should he make that decision. Otherwise, we will proceed to trial with him
in the orange jumpsuit provided by the county.
If at any time he elects to change his mind we can allow him to make
that change, but that will be on a daily basis.
[¶] I would admonish the jury
that the fact that [defendant] is in custody is not to be considered by them
for any purpose.â€
The court gave defendant
an opportunity to leave and discuss changing clothing with his counsel;
defendant returned still in his orange jail jumpsuit. Defendant again refused to respond to queries
from the court regarding his dress.
The court asked
defendant, “you’ve also indicated to the bailiff that you did not want your
waist chains removed. Would you like
those waist chains removed, sir?â€
Defendant offered no response.
The court then noted, “At the request of [defense counsel] the handcuff
on [defendant’s] right hand was removed to allow him to take notes. [Defendant], should you elect to change your
mind regarding changing into street clothes or having the waist chain removed,
just advise the court, and we can make appropriate accommodations at the
appropriate time. Because it’s your
choice to remain in jail clothing and to have the waist chain left on you, I do
need to advise you that I will be admonishing or advising the jury that the
decision[s] to remain in jail clothing and to have your waist chains on are
yours and yours alone. And you were
given an opportunity to change into other clothing and to have the waist chains
removed, and that you declined to do so.
[¶] Do you understand that,
sir?†Defendant refused to respond. Jury selection commenced.
The next day the court
observed defendant was still wearing his orange jumpsuit. Defense counsel informed the court he had
discussed the matter with defendant, but defendant did not wish the contents of
the conversation divulged due to attorney-client privilege. The court asked defendant if he would like
his chains removed. The court received
no response from defendant.
On the next trial date,
the court asked if defendant would like to change clothes and have his shackles
removed. Defendant, again, refused to
respond. The People began their
case-in-chief. Subsequent to the
afternoon recess, the court noted, “Record will reflect that during the noon
recess [defendant] requested to be dressed out.
He is now dressed in street clothes and does have his shackles removed.â€
Posttrial, the court
instructed the jury with CALCRIM No. 204, reading, “The fact that physical
restraints have been placed on the defendant is not evidence. Do not speculate about the reason. You must completely disregard this
circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss
it during your deliberations.â€
In his closing argument, defense counsel stated “Sergeant Beach in the
middle of the night on December 4[], shot the wrong man. He shot [defendant]. He [s]hot him from behind.†“[T]he truth lies entirely in the small
details . . . not through statements of a man who shot another man from
behind.â€
In his rebuttal, the prosecutor stated defense counsel “told you in
his opening, and he told you the defendant was shot in the back, really. Did anybody testify the defendant was shot in
the back?â€
title="">[8] Defense counsel objected
that the prosecutor was misstating the defense argument. The court overruled the objection.
The prosecutor continued, “You can go through all the evidence, all
the transcripts, did anyone testify that the defendant was shot in the
back? They didn’t. No one testified to that. [¶]
Now, it’s true, I have the burden.
I have to prove the case beyond a reasonable doubt. But when the defense puts on a defense, which
they did by calling Officer Cogswell to testify to those injuries, you can
judge the nature and quality of that defense in determining whether or not I
have met my burden; okay. [¶] If the defendant was shot in the back, don’t
you think that the doctor who treated him would have been here to tell you
about that?â€
Defense counsel objected that the prosecutor was attempting to shift
the burden of proof. The court overruled
the objection. The prosecutor continued,
“The fact of the matter is he wasn’t shot in the back. You don’t know anything about the position of
his body when he was shot.â€
During the sentencing hearing the court found “a motor vehicle was involved
in this crime as much as it appeared to be driven to the location and was ready
to be driven away from the location by this defendant or by his
accomplice.†The court sentenced
defendant to the upper term on count 1, finding two aggravating factors and no
mitigating factors. The court noted
defendant had acted in concert with another person in committing the robbery
and had acted dangerously by running in public with a gun which resulted in a
public shooting.
DISCUSSION
We offered defendant an opportunity to file a personal supplemental
brief, but he has not done so. Pursuant
to the mandate of People v. Kelly
(2006) 40 Cal.4th 106, we have independently reviewed the record for potential
error and find no arguable issues. (
652 [in choosing a restraint, a defendant cannot complain of prejudice from the
jury’s observation of the chosen restraint]; People v. Wash (1993) 6 Cal.4th 215, 262-263 [prosecutor’s comment
upon defendant’s failure to adduce material evidence or call logical witnesses
not improper]; People v. Black (2007)
41 Cal.4th 799, 813 [one legally sufficient aggravating factor justifies
imposition of the upper term]; People v.
Crockett (1990) 222 Cal.App.3d 258, 263 [court documents, and reasonable
inferences made therefrom, may provide substantial evidence a defendant
suffered a prior prison term and failed to remain free from custody for five
years.]; See People v. Burch (2007)
148 Cal.App.4th 862, 868 [section 969(b) packet properly admitted to prove
prior prison term allegation]; People v.
Gimenez (1995) 36 Cal.App.4th 1233, 1237 [use of vehicle to arrive at scene
of offense and intent to flee therein, sufficient to support finding that a
vehicle was used in the commission of the crime].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
CODRINGTON
J.
We
concur:
RAMIREZ
P. J.
HOLLENHORST
J.
name="_ftn1" title=""> [1] All further statutory references are to the Penal
Code unless otherwise indicated.
name="_ftn2" title=""> [2] The jury acquitted defendant of the count 3
charge of assault with a firearm upon a peace officer (§ 245, subd. (d)(1)). The jury deadlocked on the count 2 charge of
robbery (§ 211); the court dismissed the charge upon the People’s motion.
