P. v. Woods

Filed 11/1/07 P. v. Woods CA3

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NOT TO BE PUBLISHED

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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Defendants Christopher Ray Woods and Kevin Eugene Warner were convicted by a jury of first degree robbery (Pen. Code,  211^[1]- count III), with the jury finding true that defendants acted in concert with two or more other persons in committing the robbery within an inhabited dwelling. ( 213, subd. (a)(1)(A).) The jury found true special enhancement allegations that Woods personally used a firearm during the commission of the robbery ( 12022.5, subd. (a), 12022.53, subd. (b)) and that during the commission of the robbery a principal was armed with a firearm. ( 12022, subd. (a)(1).) The jury found Woods guilty of being a felon in possession of a firearm. ( 12021, subd. (a) - count VII.) The jury acquitted Warner of false imprisonment by force or menace, but found him guilty of the lesser included offense of false imprisonment. ( 236 - count VI.) The jury acquitted defendants of several other charges, two counts were dismissed by the trial court under section 1118.1, and the court set aside improper jury verdicts regarding lesser included offenses to the robbery.

The trial court sentenced Woods to the upper term of nine years in state prison for his robbery conviction. The trial court imposed a 10-year additional enhancement term pursuant to section 12022.53 for Woodss personal use of a firearm. The trial court imposed, but stayed under section 654, a 10-year enhancement term under section 12022.5, subdivision (a) and a one-year enhancement term under section 12022, subdivision (a). The court imposed an eight-month consecutive sentence for Woodss conviction of being a felon in possession of a firearm. The total prison term imposed amounted to 19 years and eight months.

The trial court sentenced Warner to the upper term of nine years in state prison for his robbery conviction. The court imposed but stayed under section 654, a concurrent one-year county jail term for Warners misdemeanor conviction of false imprisonment.

Both defendants filed timely appeals. Woods claims on appeal: (1) there is insufficient evidence to support his conviction for being a felon in possession of a firearm and the personal firearm use enhancements because they are supported entirely by uncorroborated accomplice testimony, (2) his sentence for being a felon in possession of a firearm should have been stayed, and (3) the trial courts imposition of the upper term for robbery and consecutive sentences violated his federal constitutional right to jury trial under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). Warners sole challenge on appeal is to the imposition of the upper term sentence on him pursuant to Blakely.

We shall affirm the judgments.

FACTUAL BACKGROUND

Cyrus Crute and Richard Taylor were in Crutes home in Olivehurst on the evening of June 6, 2005. Crute was on the phone when he heard two booms. A person wearing a wolf mask came around the corner pointing a shotgun at him. Crute, scared, ran out the front door and used his phone to call 911. He saw a silver or gray car in the vicinity of his house.

When Taylor heard the big booms, he jumped off the couch where he was sitting. Two people wearing rubber masks came in. The lighter man, wearing a wolf mask, was pointing a shotgun in Taylors face. Both men screamed at Taylor to get down and keep his face down. The one man held the gun on Taylor while the other man had Taylor put his hands behind his back and duct taped his hands and ankles together. The man also put tape over Taylors mouth. Taylor saw a third person present who was not wearing a mask. While he was lying on the floor, Taylor was hit on the side of his head with what felt like the butt of the shotgun.

The men were in the house approximately 15 minutes when Taylor heard sirens. One man said they should get out of there. Taylor looked up as he heard the men going out the back door and saw they were carrying something wrapped in a blanket. After the men left, Taylor was able to scoot to the front door where he saw a silver or gray car going out of the driveway.

Deputies from the Yuba County Sheriffs Department responded to the 911 call. Sergeant Million saw a gray Nissan or Datsun driving with its lights off coming from behind Crutes residence. The car landed in a ditch after a short slow speed chase by the deputies. The driver of the car immediately got out and ran off. He was later located by a K-9 unit and identified as Woods. The passenger in the front passenger seat put his hands on top of his head as soon as the car stopped. The passenger in the rear of the car just sat straight without moving. When Million approached the car, he saw a long gun on the rear passengers lap. The rear passenger was identified as Warner.

When Crute returned to his house, the back door was broken in. He determined $300 to $400 in cash was missing, including coins, plus his drivers license, some cologne and some meat out of the freezer.

Detective Phillips examined and seized various items from the Nissan. Among them, he seized a mask described as a scream mask from the back seat and a wolf mask from the front floorboard passenger side. He also found a white comforter in the back seat, along with a roll of duct tape, seven unfired shotgun shells, paperwork including a drivers license in the name of Crute, and $255 in bills and a little over $113 in change.

Crute told Phillips the man wearing the scream mask was armed with a gun. Taylor was not sure, but thought the same. At trial, Crute denied telling the detective that the person with the gun wore the scream mask. Taylor testified he may have told the officer the gunman wore the scream mask, but after seeing the masks in court, he was certain the gunman wore the wolf mask.

Phillips removed a three-inch piece of duct tape from the person of Taylor and a three-inch long length of duct tape from Warners shirttail. The tape removed from Warner matched in color and size the roll Phillips found in the car.

John Condrey testified for the prosecution under a grant of use immunity. Condrey testified he met Warner on June 6 in the afternoon at the Budget Motel Inn where Condrey was living. Warner told Condrey he might need Condreys assistance later that evening to collect an old debt. Warner wanted Condrey to watch his back. Condrey agreed and was picked up later by a gray primer-colored car driven by Woods. Warner was in the back seat. They drove to a house. Woods got out, kicked in the door and entered the house. Warner and Condrey also went inside. Woods wore the mask identified as a coyote or wolf mask. Warner wore the mask identified as the scream mask. Condrey did not wear a mask. Woods was holding a gun. Warner asked the young man in the house to lie down and proceeded to bind the mans hands with duct tape. Condrey knew something was wrong; when you put a person on the ground with duct tape youre not collecting a debt, youre robbing him.

When they heard sirens, Condrey told the others they should leave. Condrey saw Woods strike the man on the ground with his gun on the way out. The three men got back in the car. Woods threw the shotgun in the backseat and drove off. Condrey saw patrol cars everywhere. When their car went into a ditch, Warner and Condrey placed their hands on top of their heads and waited, while Woods bailed.

According to Condrey, Warner was a big man. Woods had kicked the door in by the time Warner was able to get out of the car. Condrey never saw Warner strike anyone, threaten anyone or carry a weapon.

The parties stipulated the boots worn by Woods matched the imprint found on Crutes back door. The parties also stipulated that none of the fingerprints found on the shotgun matched Woods, Warner or Condrey.

DISCUSSION

I.

Corroboration of Accomplice Testimony

Woods claims his conviction for being a felon in possession of a firearm and the true findings for the personal use enhancements alleged in connection with the robbery must be reversed because there is insufficient evidence to support the conviction and findings apart from the uncorroborated testimony of his accomplice Condrey.^[2] Woods does not dispute the sufficiency of the evidence linking him to the robbery, but specifically focuses on the corroborative evidence of his identity as the masked man with the gun. We reject Woodss argument.

First, corroboration of Condreys identification testimony was not necessary for the enhancement findings of personal use. (People v. Maldonado (1999) 72 Cal.App.4th 588, 597-598 [accomplice corroboration not required to prove gun use enhancement allegation].) Second, we conclude, in any event, there was sufficient corroborative evidence in this case to support both the felon in possession of a firearm conviction and the personal use enhancements.

Corroborative evidence must come in by means of the testimony of a nonaccomplice witness. [Citation.] It need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. [Citation.] (People v. Fauber (1992) 2 Cal.4th 792, 834-835.) Corroborative evidence need only be slight, such that it would be entitled to little consideration standing alone. [Citation.] It is enough that the corroborative evidence tends to connect defendant with the crime in a way that may reasonably satisfy a jury that the accomplice is telling the truth. [Citation.] (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1303.) Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.] (People v. Hayes (1999) 21 Cal.4th 1211, 1271.)

Taylor testified two of the robbers wore masks; the lighter man held the shotgun. We can safely assume the jury would have been able to tell which of defendants was the lighter man. The probation reports for the defendants indicate Woods is 30 pounds lighter than Warner. In addition, Taylor testified one of the masked robbers held the gun on him while the other man taped him up with duct tape. Warner admitted to Lieutenant Williamson that he duct taped Taylors hands and feet during the robbery. Thus, by inference, leaving defendant Woods as the robber who held the gun. And, Detective Phillips found and removed duct tape from Warners shirttail. Finally, Phillips testified he found the scream mask in the back seat of the Nissan, while the wolf mask was seized from the front floorboard. Sergeant Million testified Woods was the driver of the car, while Warner was the rear passenger. Although these pieces of evidence may be slight, they are sufficient to corroborate Condreys identification of Woods as the man wearing the wolf mask that used the gun.

II.

Section 654 Does Not Preclude Woodss Sentence For Being A Felon In Possession Of A Firearm

Woods contends the trial court erred under section 654 in imposing a consecutive sentence on him for his violation of section 12021, being a felon in possession of a firearm. Woods claims the evidence shows his possession of the firearm was merely incidental to the robbery and he received a 10-year enhancement for his use of the firearm during the robbery under section 12022.53. He asserts the record does not support the trial courts finding that his purpose [was] predominantly independent of the robbery because the evidence does not support the trial courts statement that he acquired th[e] weapon, [and had] it with him as he drove around gathering people. He used it, had it for more than simply the purpose of the robbery itself. Therefore, according to Woods, section 654 requires his sentence for being a felon in possession of a firearm to be stayed. We disagree.

Section 654 provides, in relevant part: (a) 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.

Section 654 has been applied not only where there was but one act in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. [Citation.] [Citation.] (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] (Ibid.)

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] We must view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citation.] [Citation.] (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)

Whether a violation of section 12021, which prohibits felons from possessing firearms, is divisible from the offense in which the firearm is used depends on the facts of the individual case. [W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense. [Citation.] (People v. Bradford (1976) 17 Cal.3d 8, 22.) [M]ultiple punishment is improper where the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendants hand only at the instant of committing another offense . . . . (People v. Jones (2002) 103 Cal.App.4th 1139, 1144, quoting People v. Radcliff (1990) 223 Cal.App.3d 1401, 1412.)

The evidence in this case supports the trial courts finding that Woodss possession of the shotgun was independent of the robbery. Contrary to Woodss claim, the record does support the reasonable inference that he possessed the gun before and after the robbery, not merely at the instant of committing the robbery. To begin with, there was no evidence that either Warner or Condrey had the gun before the robbery and gave it to Woods. Nothing in the evidence suggests Woods found the gun inside Crutes home and fortuitously picked it up. Instead, the sequence of events to which Condrey and Crute testified strongly suggests Woods already had the gun before the robbery and took it with him into Crutes home. Specifically, Condrey testified Woods had kicked the door in by the time Warner was able to get out of the car. He and Warner then followed Woods into the house. Crute testified he heard the two booms and a person wearing a wolf mask came around the corner pointing a shotgun at him. Crute did not testify to any appreciable time lapse between the two events that would have allowed Warner or Condrey to catch up with Woods and give him the shotgun. Moreover, Woods did not drop the gun after the robbery, but took it with him. He got into the car and threw it, not to Warner, but simply into the backseat. Thus, viewing the evidence in the light favorable to the trial courts findings, we conclude Woodss sentence for being a felon in possession of a firearm does not constitute multiple punishment prohibited by section 654.

III.

Claims Of Blakely/Cunningham Error

Woods contends the trial court violated his federal constitutional right to jury trial as interpreted by Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] when it imposed on him the upper term for robbery and a consecutive sentence as to the felon in possession of a firearm. Warner also claims the imposition on him of the upper term for robbery violated his right to jury trial under Blakely. We set forth the applicable principles before assessing the merits of defendants claims.

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].)

In Blakely, the Supreme Court applied the rule of Apprendi to invalidate a state court sentence. The high court explained that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413], italics omitted.)

In Cunningham, the Supreme Court applied Apprendi and Blakely to Californias determinate sentencing law and held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)

On remand for reconsideration in light of Cunningham,the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II), concluded 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.) The Supreme Court took a broad view of the scope of the prior conviction exception. (Id. at pp. 819-821.) The Supreme Court also concluded Cunningham did not call into question its prior conclusion that [t]he determination whether two or more sentences should be served [consecutively] is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Id. at p. 823, quoting Black I, supra, 35 Cal.4th at p. 1264.)

In People v. Sandoval (2007) 41 Cal.4th 825, a companion case to Black II, the California Supreme Court concluded a Cunningham issue is not forfeited by a defendants failure to object at sentencing when the sentencing proceeding took place after the California Supreme Courts decision in Black I because any objection would have been futile at that time. (Id. at p. 837.) The Supreme Court determined, on the merits of the issue, that the defendants constitutional rights to jury trial were violated by the imposition of an upper term sentence. (Id. at p. 838.) The court stated the test for harmless error (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466]) was whether the reviewing court could conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.] (Sandoval, supra, at p. 839.) In Sandoval, the error was not harmless, requiring reversal of the imposition of the upper term and a remand for resentencing. (Id. at pp. 840-843, 858.)

In this case, the trial court imposed the upper term sentence for robbery on Woods, finding in aggravation the manner in which the crime was carried out indicates planning, sophistication and professionalism under [California Rules of Court, rule] 421(a)(8).^[3] The court found that factor greatly outweighs the one circumstance in mitigation [rule 423(b)(2) - Woods[s] drug addiction reduced his culpability for the crime]. The trial court imposed a 10-year consecutive sentence for the section 12022.53, subdivision (b), enhancement. The trial court further stated, For violating Penal Code 12021(a), under Rule 425, that crime was committed at a different time, not so closely in time as to indicate a single period of aberrant behavior. The purpose of it is predominantly independent of the robbery itself. What Im thinking of is Mr. Woods having acquired that weapon, have it with him as he drove around gathering people. He used it, had it for more than simply the purpose of the robbery itself. Consecutive term is appropriate. For violating Penal Code 12021(a), youre sentenced to eight months to be served consecutively to the term previously imposed. Woods did not object that the trial courts sentencing violated his federal constitutional right to a jury trial under Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403].

Woodss failure to object did not forfeit his federal constitutional claim as his sentencing occurred in October 2005 after the California Supreme Courts decision in Black I. He was not required to make a futile objection. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)

The trial courts finding of planning, sophistication, and professionalism under rule 421(a)(8), the sole factor in aggravation used to impose the upper term on Woods for his conviction of robbery was not a factor found by the jury, admitted by Woods, or related to Woodss prior convictions. The trial courts finding, therefore, violated Woodss right to jury trial under Apprendi, Blakely, and Cunningham. (Black II, supra, 41 Cal.4th at p. 816; Sandoval, supra, 41 Cal.4th at pp. 837-838.)

However, we find the error to be harmless (Washington v. Recuenco, supra, 548 U.S. ___ [165 L.Ed.2d 466]) because we conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true . . . [the] aggravating circumstance had it been submitted to the jury[.] (Sandoval, supra, 41 Cal.4th at p. 839.) Specifically, the prosecutor asked the trial court at sentencing to impose the upper term on Woods based solely on a finding of planning and sophistication under rule 421(a)(8) because Woods placed a mask on his face to avoid being identified and avoid apprehension[;] a factor so aggravating that it warrants the upper term. The trial court agreed. The record shows it was undisputed Woods used a mask in committing the robbery, the clear purpose of which was to conceal his identity and to avoid being held responsible for his actions. Unquestionably, the jury would have found such use to indicate planning and sophistication.

The trial courts imposition of consecutive sentences on Woods did not violate defendants constitutional rights under Apprendi, Blakely, and Cunningham. (Black II, supra, 41 Cal.4th at pp. 821-823.)^[4]

As to Warner, the trial court found three aggravating factors warranting the imposition of the upper term for his robbery conviction. The trial court found not only planning and sophistication under rule 421(a)(8), but that Warner was on a summary grant of probation when he committed the offense (rule 421(b)(4)) and that his prior performance on probation grants was unsatisfactory. (Rule 421(b)(5).) Warner did not raise a Blakely objection to the trial courts imposition of the upper term.

Warners failure to object did not forfeit his federal constitutional claim as his sentencing occurred in October 2005 after the California Supreme Courts decision in Black I. He was not required to make a futile objection. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)

However, Warners claim of federal constitutional error is meritless. One of the aggravating factors used by the trial court in choosing the upper term sentence was the fact that Warner was on probation when he committed the offense. Warners status as a probationer arises out of and can be determined from Warners record of prior convictions. It is a prior conviction circumstance to which the federal constitutional right to jury trial does not apply. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 873]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224; Black II, supra, 41 Cal.4th at pp. 819-820.) As at least one legally sufficient aggravating circumstance was found to exist consistent with federal constitutional principles, Warner was eligible for the upper term and any additional factfinding by the trial court did not violate his constitutional right to jury trial. (Black II, supra, at pp. 813, 815.)

DISPOSITION

The judgments are affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

SIMS , J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]The trial court instructed the jury that Condrey was an accomplice to the crimes charged as a matter of law. Respondent does not challenge the trial courts conclusion. For purposes of this opinion, we shall assume Condrey was an accomplice to each of the crimes charged against Woods.

^[3]Further rule references are to the California Rules of Court in effect at the time of defendants sentencing in October 2005.

^[4]We also note section 12022.53, subdivision (b), mandates the imposition of an additional and consecutive term of imprisonment of 10 years. The trial courts imposition of such term, therefore, did not involve any factfinding in violation of Woodss federal constitutional right to jury trial.