Fear Not Law

In re Joseph P.

Wed, 03 Dec 2014 11:09:37 GMT

In re Joseph P.

Filed 10/30/14 In re Joseph P. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re JOSEPH P., a Person Coming Under the Juvenile Court Law.

2d Juv. No. B255965

(Super. Ct. No. J069280)

(Ventura County)

VENTURA COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

DEANN A.,

Defendant and Appellant.

Deann M. (mother) appeals the juvenile court orders denying her modification petition, terminating her parental rights and establishing adoption as the permanent plan for her minor child Joseph P. [1] (Welf. & Inst. Code, §§ 366.26, 388.) [2] Mother contends the court abused its discretion in denying her modification petition, and erred in finding that terminating her parental rights would not be detrimental to Joseph.

(§ 366.26, subd. (c)(1)(B)(i).) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 21, 2013, the Ventura County Human Services Agency (HSA) detained 11-month-old Joseph P. and his two half-siblings, seven-year-old Enrique and four-year-old Alexis. HSA took Joseph into protective custody and placed Enrique and Alexis with their father.

On March 25, 2013, HSA filed a petition as to Joseph for failure to protect (§ 300, subd. (b)) and support (§ 300, subd. (g)). The petition alleged that mother left Joseph, Enrique and Alexis at home, in the care of adults who were using marijuana in their presence. The home was in disarray. Joseph's crib was filled with blankets, clothing and pillows, and there was marijuana on a low dresser. Mother had a history of unaddressed substance abuse and mental health issues. HSA could not find Joseph's father.

On March 26, 2013, the juvenile court declared Joseph a dependent child, ordered his continued detention, and ordered HSA to begin providing reunification services to mother. The court ordered mother to refrain from using or possessing any drugs or alcohol, submit to random drug testing, and provide HSA written verification of her attendance at Alcoholics/Narcotics Anonymous (AA/NA) meetings. On April 11, 2013, mother and HSA agreed to a case plan that set a goal for her reunification with Joseph by October 22, 2013. The plan required that mother participate in mental health counseling; enroll in and complete an outpatient substance abuse treatment program; submit to random drug testing; and provide written proof of her attendance at 12-step meetings.

Mother attended the April 23, 2013, jurisdiction and disposition hearing. The juvenile court sustained the petition, ordered HSA to provide six months of reunification services to mother, and ordered mother to comply with her case plan.

In its October 7, 2013, six-month status review report, HSA recommended that the juvenile court terminate mother's reunification services and set a section 366.26 hearing to establish adoption as the permanent plan for 18-month-old Joseph. HSA reported that Joseph had been living with his maternal aunt since April 15, 2013, and was appropriately attached to his maternal aunt and mother. Joseph was developmentally on track, walking, throwing a ball, following simple directions, and learning new words.

Mother enrolled in several recovery programs, but failed to complete them. She tested positive for codeine on May 10, 2013, and failed to submit to testing on two other dates. Mother missed multiple appointments with her therapist, as well as some scheduled meetings with her HSA social worker. Mother missed eight weekly visits with Joseph from mid-May through late July 2013, sometimes because she slept through her alarm or was late for the bus.

On October 7, 2013, mother appeared in juvenile court and requested a contested status review hearing. The court set the matter for a contested hearing on October 31, 2013. Mother failed to appear on October 31. The court considered the evidence submitted by HSA and found by clear and convincing evidence that she failed to comply with her case plan. The court terminated mother's reunification services, and set a section 366.26 hearing for February 24, 2014.

On February 24, 2014, mother requested a contested section 366.26 hearing. The juvenile court scheduled the matter for a contested hearing on March 20, 2014. On March 20, mother filed a section 388 petition asking the juvenile court to modify its October 31, 2013, order terminating reunification services. The petition alleged the following changed circumstances: Mother had been sober since September 2013; she recently gave birth to a daughter; and mother enrolled in alcohol and drug treatment and parenting programs on January 23, 2014. Her petition further alleged it would be in Joseph's best interests if reunification services were reinstated because Joseph was placed with mother's sister, mother would be seeing him, and with services, she could best maintain the path she was on to be a "clean, sober and healthy individual in his life"

On April 22, 2014, the juvenile court conducted a combined hearing on mother's section 388 petition and the HSA recommendation to terminate parental rights and select adoption as Joseph's permanent plan. HSA reported that Joseph was a happy, playful, healthy boy who was developmentally on track, and able to kick and throw a ball, and say about 20 words. Joseph had been living with his maternal aunt and her girlfriend since April 15, 2013. They were "attached/bonded to him, love[d] him, . . . [saw] him as their own child," and wished to adopt him. HSA social worker Nicole Cosgrove testified that Joseph was attached to his aunt and her girlfriend, and looked to them for comfort and support.

HSA further reported that mother gave birth to a daughter, Jazzlene, in March 2014. HSA removed Jazzlene from mother's care, and mother was receiving reunification services in Jazzlene's case. Mother attended regular supervised visits with Joseph and Jazzlene. Joseph did not have any significant issues transitioning to and from the visits. HSA located Joseph's father. He never requested visitation.

Mother testified that she attended supervised visits with Joseph once a week. He recognized her, called her "mom," and was always happy and laughing.

Mother also testified that on March 24, 2014, she entered Prototypes, a residential substance abuse facility, where she participated in recovery and parenting programs. She was in the first phase of residential treatment, and anticipated being in treatment for at least five more months. Mother testified inconsistently regarding her sobriety date. In addition, as the juvenile court observed, mother's testimony regarding the date on which she realized she was pregnant conflicted with her earlier statements to Cosgrove. The trial court found Cosgrove was credible.

The juvenile court denied mother's section 388 petition to reinstate services, found that Joseph was adoptable, and terminated mother's parental rights.

DISCUSSION

Section 388 Petition

Mother contends that the juvenile court erred by denying her section 388 petition. We disagree. "The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established." ( In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) The parent bears the burden of showing both a change of circumstances and that modification of the prior order would be in the child's best interests. (In re S.J. (2008) 167 Cal.App.4th 953, 959.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, . . . 'the focus shifts to the needs of the child for permanency and stability' [citation] . . . ." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

Mother claims she met her burden of showing the requisite change of circumstances because she "was in recovery." She bases that claim on her entry into residential treatment on March 27, 2014, and participation in other programs beginning on January 23, 2014. Before ruling on April 22, 2014, the juvenile court noted that mother was only in her fourth week of residential treatment, with at least five more months of treatment remaining. In 2013, mother had started several other recovery programs but failed to complete them. The court found there had not been a sufficient change of circumstances to justify changing its prior orders and denied the section 388 petition. Substantial evidence supports the court's finding. (In re S.J., supra, 167 Cal.App.4th at pp. 959-960.)

Mother also failed to establish that it would be in Joseph's best interest to modify the order terminating her reunification services. Following the termination of those services, the juvenile court's primary focus was upon the "'. . . needs of [Joseph] for permanency and stability' [citation] . . . ." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) At oral argument, mother's counsel urged that Joseph's placement with his maternal aunt weighed in favor of granting the section 388 petition because he could build a future with mother and remain in his aunt's home. In juvenile court, mother's counsel had claimed there was no urgency to terminate parental rights, among other reasons, because she and Joseph would see each other anyway, while he lived with his maternal aunt. The record belies any claim that mother and Joseph would inevitably maintain contact. Mother testified she and maternal aunt did not associate with each other. In discussing their wish to adopt Joseph, the maternal aunt and her partner told HSA they planned to allow mother to have supervised contact with him if she was sober and the relationship was beneficial.

As mother acknowledges in her brief, Joseph had consistent and loving care in his maternal aunt's home. Mother was in the early stages of her recovery and Joseph could not wait any longer. Substantial evidence supports the trial court's finding that it was not in the best interest of Joseph to modify its prior order and "wait five to six to seven months . . . to see whether or not he [could] be . . . returned to mother's care." (In re S.J., supra, 167 Cal.App.4th at pp. 959-960.)

Beneficial Relationship Exception

Mother argues that the juvenile court erred in finding that terminating her parental rights would not be detrimental to Joseph under the parent-child beneficial relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.

"If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of [several] specified exceptions. [Citations.]" ( In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

The parent-child beneficial relationship exception precludes adoption where (1) the parent has maintained regular visitation and contact with the child, and (2) the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) In deciding whether the parent-child beneficial relationship exception applies, "the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Historically, our courts have applied the substantial evidence standard of review when the trial court finds that the parent-child beneficial relationship exception does not apply. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In In re Bailey J. (2010) 189 Cal.App.4th 1308, the Court of Appeal applied the substantial evidence standard to the trial court's determination whether a beneficial relationship exists, and the abuse of discretion standard to the court's determination whether the relationship is so important that it compels a plan other than adoption. (Id. at pp. 1314-1315; see Cal. Juvenile Dependency Practice (Cont.Ed.Bar Annual 2013) § 8.38A, pp. 663-664; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re J.C. (2014) 226 Cal.App.4th 503, 530-531.) Here, we affirm under either standard.

Mother claims that she maintained consistent and regular visitation with Joseph to support the beneficial relationship exception. (§ 336.26, subd. (c)(1)(B)(i).) The evidence concerning her visitation was mixed. At times she visited him regularly. But she also missed multiple visits. Assuming that mother had proved she maintained the requisite visitation with Joseph, she failed to show that "'severing the natural parent-child relationship would deprive [Joseph] of a substantial, positive emotional attachment such that [he] would be greatly harmed. [Citations.] . . .' . . . Evidence that a parent has maintained '"frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) Instead, "[t]he parent must show he or she occupies a parental role in the child's life . . . ." (In re Mary G. (2007) 151 Cal.App.4th 184, 207.) Parents must make a substantial showing in cases where they have failed "to reunify and establish a parental

. . . relationship" or where they do not advance "beyond supervised visitation." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

Substantial evidence supports the juvenile court's conclusion that mother's relationship with Joseph is not so significant that he will be greatly harmed by its termination. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Joseph recognized mother and was happy while visiting her. She did not, however, occupy a parental role in his life during his dependency, and she did not progress beyond supervised visitation. Joseph has lived with his aunt and her partner since he was about a year old, and thrived in their care. Joseph looks to them for support and comfort, and shares a strong mutual bond with them. They consider him part of their family and wish to adopt him.

As the juvenile court stated, mother's efforts to recover and improve after the termination of reunification services in Joseph's case were "too little too late." "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it,

not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)

DISPOSITION

The judgment (orders denying section 388 petition and terminating parental rights) is affirmed.

NOT TO BE PUBLISHED

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

Bruce A. Young, Judge

Superior Court County of Ventura

______________________________

David A. Hamilton, under appointment by the Court of Appeal, for Appellant.

Leroy Smith, County Counsel, Eric Walts, Assistant County Counsel, for Respondent.

[1] The court also terminated the parental rights of Joseph's father. He is not a party to this appeal.

[2] All statutory references are to the Welfare and Institutions Code.

P. v. Hall

Sat, 15 Mar 2014 19:32:58 GMT

P. v. Hall

Filed 10/15/13 P. v. Hall 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 CALIFORNIA>

FOURTH
APPELLATE DISTRICT

DIVISION TWO

>

THE
PEOPLE,

Plaintiff and Respondent,

v.

BLAIR
CHRISTOPHER HALL,

Defendant and Appellant.

            E054107

            (Super.Ct.No. BAF005572)

            O P I N I O N

            APPEAL
from the Superior Court of Riverside
County. Gary B. Tranbarger,
Judge. Affirmed.

            Patrick
Morgan Ford for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and A. Natasha Cortina, Heather M. Clark, and Anthony Da
Silva, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant
Blair Christopher Hall was charged with the first degree murder of his wife of
29 years, Cristi Hall. (Pen. Code,
§ 187, subd. (a).) After a jury
deadlocked eight to four in favor of conviction and a mistrial was declared, a
second jury found defendant guilty of the murder, and the trial court sentenced
defendant to 25 years to life in prison.
On this appeal, defendant
essentially raises four claims of evidentiary error and further claims that the
evidentiary errors were both individually and cumulatively prejudicial. We conclude that all of the challenged
evidence was properly admitted, and affirm the judgment.

            Defendant
has petitioned for a writ of habeas corpus in case No. E056812. We ordered the href="http://www.mcmillanlaw.us/">writ petition considered with this
appeal. By separate order, we summarily
deny the writ petition.

I. BACKGROUND

The prosecution claimed that,
shortly after 6:30 a.m. on June 7,
2007, defendant forcibly drowned his wife Cristi in the familyâ€™s href="http://www.sandiegohealthdirectory.com/">backyard spa. The defense claimed that Cristi accidentally
drowned after hitting her head on the edge of the spa.

A. Prosecutionâ€™s Case-in-chief

            On
June 7, 2007, Lindsay
Patterson was on leave from the Navy and staying with her mother, Sharon Lopez,
in Lopezâ€™s house in Calimesa. The
backyard of Lopezâ€™s house abutted the backyard of the house where defendant,
his wife Cristi, and their eldest daughter Courtney lived. The yards were separated by a common
wall. Before June 7, neither Patterson
nor Lopez had ever had any contact with the Halls. The Halls had lived in their house since
2004.

On June 7, defendant and Cristi
were having their master and guest bathrooms remodeled and combined into one
larger bathroom. The contractor had
removed the showers and tubs, and on the morning of June 7 the Halls and Courtney
were planning to bathe outside in the family spa. The contractor was scheduled to arrive around
6:45 a.m.

Cristi came to Courtneyâ€™s room
sometime between 6:00 a.m. and 6:15 a.m. to wake her.
Cristi was in her bathing suit and told Courtney that she and defendant
were on their way out to the spa. Cristi
asked Courtney whether Courtney was going to join them in the spa, and Courtney
said she would bathe at her grandparentsâ€™ house later that day. Courtney stayed in bed until defendant later
came by and roused her.

Patterson awoke at 6:00 a.m. After
waking, she sat on her motherâ€™s back patio, drinking coffee and smoking a
cigarette. After 5 to 10 minutes, she
went inside and used the bathroom next to the front door of the house. The bathroom window was open and looked
toward the street in front of the house.
Through the bathroom window, Patterson heard an adult woman scream, and
the scream sounded panicked.

The scream frightened
Patterson. A minute later, she walked
out of the bathroom and toward the front door.
At that point, she saw Lopez on the back patio and did not open the
front door but went to Lopez and asked her whether she heard the scream. Lopez said she heard the scream.

Lopez had been asleep in her
bedroom at the back of her house, which looks out onto her backyard. Her bedroom door was open. Around 6:30 a.m., Lopez was
awakened by a loud scream or screaming.
She immediately got out of bed and walked down the hallway that led out
to her patio. The sliding glass door to
the patio was open, and she walked out onto the patio. After a couple of seconds, she heard some
splashing, thumping, and loud grunting sounds coming from the Hall
residence. The sounds stopped just
before Patterson came to the sliding glass door.

Lopez told Patterson that she
heard the scream, and thought that kids were playing in the Hallsâ€™ pool. Lopez then went inside her house for some
coffee and noted that the atomic clock on her mantel read 6:32 a.m. After
discussing with Lopez where the scream came from, Patterson walked onto the
patio and listened, because she was still curious about where the scream came
from.

After listening for a minute or
so, Patterson walked over to the wall separating the Lopez and Hall yards
because she heard a â€œgurgling sound,â€ as if someone had swallowed too much
water. She looked over (or through) the
wall and clearly saw the spa area in the Hallsâ€™ backyard. She saw defendant in the spa, leaning over
and holding Cristiâ€™s face down in the water, with his right hand on her head
and his left hand on her back. Patterson
saw the right side of defendantâ€™s body as he was leaning over Cristi. Patterson initially thought the couple might
be engaged in a sex act because Cristiâ€™s head was bent down between defendantâ€™s
legs.

After looking over the wall for
around 30 seconds, Patterson walked back to the patio where Lopez was drinking
coffee and told Lopez what she had seen.
Lopez told her not to worry about it and it was probably nothing. About 90 seconds after she left the wall,
Patterson went back to the wall and looked into the Hallsâ€™ backyard a second
time. This time, she saw defendant
sitting alone in the spa, leaning back against the wall with his elbows on the
brick and looking around. Patterson did not see Cristi. She went back to Lopez and told Lopez that
she did not see the woman anymore.
Patterson was concerned because she did not believe enough time had
passed for Cristi to get out of the spa and walk inside the house. Lopez told Patterson to stop being nosy and not
to worry about it.

Still concerned, Patterson went
back to the wall and looked into the Hallsâ€™ backyard a third time. This time, she saw defendant step out of the
spa and dry off with a towel as he walked around in a hurried manner. He put on some slip-on shoes, and looked
toward the spa as he walked toward the wall where Patterson was looking toward
him. Defendant looked angry and â€œas if
he was in his own world and disconnected from anything.â€

When defendant walked towards
her, Patterson loudly called out, â€œSir?
. . . Excuse me, sir?â€ a couple of times. Despite her calls, defendant did not look in
Pattersonâ€™s direction. Patterson watched
defendant walk to his house, stop at the mat at the back door, and continue to
dry himself with a towel.

Patterson had a â€œgut feelingâ€
something was wrong. She again went back
to Lopez and told her to call 911. Lopez
ran inside, grabbed the telephone, and called 911. Lopez brought the telephone to Patterson, on
the patio, and Patterson spoke with the 911 operator. During the call, Patterson relayed to the
operator â€œin real timeâ€ some things she heard coming from the Hallsâ€™ yard, such
as a man yelling, â€œ[t]ake her out.â€

Courtney was looking at her alarm
clock at 6:37 a.m. when defendant came to her room,
knocked on the wall, and told her to get up because the contractors would soon
be there. Around 30 seconds after he
left her room, Courtney heard defendant scream.
She ran to the back sliding glass doors and saw defendant sitting on the
concrete ledge of the spa with his feet in the spa and his arms under Cristiâ€™s
armpits, pulling her out. Defendant told
Courtney to â€œ[c]all 911. Hurry,â€ and
Courtney did so. While on the telephone
with the 911 operator, Courtney helped defendant pull Cristi out of the spa. Defendant was wearing shoes when he got out
of the spa.

After helping defendant pull
Cristi out of the spa, Courtney ran through the house, threw her telephone on
the living room sofa, opened the front door, ran outside to open the front
gate, and ran back through the house to the spa. When she got back to the spa, defendant was
kneeling over Cristi but had not performed cardiopulmonary resuscitation
(CPR). Courtney began chest compressions
while defendant gave breaths. At this
point, Cristi was blue, her eyes were dark, and there were no signs that she
was still alive.

Courtney called 911 a second time
because it seemed like it was taking a long time for responders to arrive. She used her motherâ€™s cell phone which was
lying on the ledge of the spa. It was
her parentsâ€™ general practice to bring a cell phone with them when they used
the spa. Courtney was outside and still
on the telephone with 911 when the first responders arrived.

At 6:46
a.m., Eric Norwood, a firefighter and emergency medical technician (EMT),
and his captain were the first responders to arrive at the Hall house. Norwood and his
captain each administered CPR to Cristi.
They also moved her body a couple of feet to a dry area so they could
use defibrillator pads. They were not
able to get any vital signs.

Marc Woodward, a paramedic with
American Medical Response, arrived at the Hall house at 6:48 a.m. He found
Cristi cool to the touch, with no pulse or heartbeat. The fire department continued CPR while
Woodward created an advanced airway for Cristi by intubating her. Woodward also inserted an I.V. on the top of
Cristiâ€™s right hand. Cristi was placed
on a backboard on the ground, lifted to the stretcher, and taken to the
ambulance. She was not dropped, and no
injury occurred to her body while Woodward was present. Nor did any bruising likely occur to Cristiâ€™s
mouth as a result of the intubation.

Photographs of defendant taken on
June 7, 2007, showed
injuries to his right bicep, chest, right leg, left foot, right foot, and on
the toes of both of his feet.
Defendantâ€™s DNA matched DNA in fingernail clippings taken from
Cristi. A white metal earring and a hair
clip with a large clump of hair were found at the bottom of the spa.

Courtney looked after many of the
familyâ€™s financial responsibilities after Cristiâ€™s death. Only a couple of weeks after Cristiâ€™s death,
Courtney discussed disconnect notices and late notices on bills with
defendant. In 2004, defendant and Cristi
took out life insurance policies; the value of defendantâ€™s policy was $1
million and the value of Cristiâ€™s was $750,000.
Following his arrest in this case, defendant relinquished his rights as
the primary beneficiary of Cristiâ€™s policy, and the proceeds of the policy were
paid to his and Cristiâ€™s three daughters, Courtney, Briana, and Ashtin.

The prosecution presented the
testimony of two experts, Andrea Zaferes and Dr. Mark McCormick, who opined
that Cristiâ€™s drowning was not an accident but a homicide. Zaferes testified first, followed by Dr.
McCormick.

1. Andrea Zaferesâ€™s Testimony

For seven years before trial,
Andrea Zaferes had worked as a â€œmedical legal death investigatorâ€ for the
Dutchess County Medical Examinerâ€™s office in New York. Zaferes testified as an expert on drowning
deaths, and opined that Cristiâ€™s death was not an accidental drowning.

According to Zaferes, the
Association of Pool and Spa Professionals estimated that there are six to seven
million spas and hot tubs in the United
States, and the Consumer Safety Product Commission reported
15 cases of people who slipped, fell, and drowned in a spa or hot tub between
2003 and 2007. Of those 15 drowning
cases, only three involved an adult hitting their head and drowning. Zaferes also opined that head injuries in
drowning cases typically occur to the front of the head, and the biggest risk
factors for spa-related drowning are intoxication, cardiac and seizure
conditions, and age (i.e., toddlers and the elderly).

Zaferes went to the Hall home and
got into the spa. Mimicking an unconscious
person under water, she let herself go limp and exhaled the air from her
lungs. She did this several times and
sank to the bottom each time. She opined
that if a person drowned in the spa, their head and entire body would be on the
bottom of the spa.

Zaferes examined defendantâ€™s
injuries, and opined that the injuries on his right foot and chest did not
occur when he performed CPR on Cristi.
Zaferes had given CPR and had seen CPR performed hundreds of times by people
who were barefoot and working on gravel, sand, docks, cement, pool decks, and
other types of environments, and had never seen a foot or chest injury like
defendantâ€™s occur as a result of performing CPR.

Zaferes also examined Cristiâ€™s
injuries. Visual inspection revealed the
presence of petechial hemorrhages, which Zaferes explained are little spots
visible on the skin due to capillaries rupturing from pressure. Zaferes noted that the presence of petechia
is extremely rare in drowning cases, and their presence suggests the drowning
death was not accidental. She had never
seen a drowning victim with as much petechia as on Cristiâ€™s body. She also opined that the two injuries on
Cristiâ€™s head could not have come from a single blow.

There was a bruise on only one
side of Cristiâ€™s nose, and Zaferes had never seen a similar contusion result
from squeezing a personâ€™s nose during CPR.
A large clump of Cristiâ€™s hair was found in the hair clip at the bottom
of the spa. Zaferes had seen people
removed from pools hundreds of times and had read hundreds of articles and
police reports, but had never seen or heard of a clump of hair torn from a
personâ€™s head during the removal process.
Lastly, people who are in the process of drowning cannot scream, but may
make â€œgurgling noises.â€

            2. Dr. McCormickâ€™s Autopsy, Findings, and
Opinion

On June 8, 2007, Dr. Mark McCormick, a forensic pathologist for
the Riverside County Sheriff-Coronerâ€™s office, performed the autopsy on
Cristiâ€™s body. The coroner investigates
homicides, suicides, accidental deaths, and natural deaths not under the care
of a physician. In Riverside County, forensic
pathologists are responsible for determining the cause of death (e.g.,
drowning) and deputy coroners are responsible for determining the manner of
death (e.g., homicide or accident).

On his initial inspection, Dr.
McCormick noticed smeared blood on parts of Cristiâ€™s body, and medical
equipment, including an endotracheal tube in Cristiâ€™s mouth, electrocardiogram
and defibrillator pads on her torso, and intravenous catheters in her
body. The sheriff-coronerâ€™s office
requests that life-saving medical equipment be left on the body so that they
may distinguish between injuries that occurred before death and those that
occurred as a result of life-saving measures.

During his external examination
of the body, Dr. McCormick noted a three-inch-long laceration on the left side
of the scalp, one-quarter to three-quarters of an inch deep, and extending down
to the underlying bone. There was a
smaller laceration toward the back of the head, also on the left side. Dr. McCormick opined that the two lacerations
resulted from at least two separate blows or blunt force impacts to Cristiâ€™s
head.

The larger laceration could have
been caused by falling from a standing height onto concrete, or by the head
being driven into the side of a cement Jacuzzi with the force of a 250-pound
man. The smaller laceration could not
have been caused by the head dropping to the ground if the head was up at an
angle and the back was resting on the ground.

There were also injuries to
Cristiâ€™s mouth and chin, including an abrasion on the inside of the left side
of her lower lip, a small bruise on the inside of the lip, abrasions on both
sides of the tongue near the top of the tongue, a bruise on the left side
within the muscle of the tongue, and an abrasion under the chin. Dr. McCormick opined that these injuries were
more consistent with someone engaged in a struggle than an accidental injury or
intubation injuries. In addition, the
injuries to the mouth showed at least two more areas of impact, and there were
too many points of impact to be explained by a slip and fall.

Dr. McCormick also noted the
presence of numerous petechial hemorrhages on and in Cristiâ€™s body. Petechial hemorrhages are small pinpoint
hemorrhages that occur when pressure in the capillaries in the skin become too
great, causing the capillaries to rupture.
They are most common in the tissues of the head, especially the eyes,
and are a â€œvery rare findingâ€ in accidental adult drowning deaths. Cristi had petechial hemorrhages on her
cheeks, nose, the white parts of her eyes, the tissue surrounding her eyes, the
inside of her mouth, and on her upper arms and chest.

Based on the totality of Cristiâ€™s
injuries and his findings, Dr. McCormick concluded that the cause of Cristiâ€™s
death was drowning, but the drowning was not accidental. The existence of the petechial hemorrhages
alone was insufficient to support his conclusion that the drowning was not
accidental, but â€œcertainly ma[d]e [him] suspiciousâ€ that it was not
accidental. The injuries on Cristiâ€™s
body, together with the number and intensity of the petechial hemorrhages, was
â€œvery importantâ€ to his conclusion.

Dr. McCormick explained that,
although lividity, which is the pooling of blood under the influence of
gravity, can cause petechial hemorrhages, those on Cristiâ€™s body were not
caused by lividity because the lividity in her body was posterior, or in the
back, and was not present in her face.
In addition, although there is some disagreement in the medical
literature concerning whether CPR can cause petechial hemorrhages, Dr.
McCormick was not convinced that CPR causes petechial hemorrhages because, in
his review of the cases offered as evidence, the people died of things that could
themselves have caused petechial hemorrhages.
Furthermore, in his experience of performing around a dozen autopsies
per week where more than half of the people received CPR, he rarely saw
petechial hemorrhages and had never seen petechial hemorrhages in someone that
did not have another reason to have them.
Nor had he ever seen them in any of his drowning cases, and in those
cases half or more of the people had received CPR.

B. Defense Case

            The defense claimed Cristi
slipped, fell, hit her head, and accidentally drowned in the spa after
defendant went back inside the house to use the restroom. The defense also presented evidence that
defendant had no motive to murder Cristi because the two of them were happy and
their marital and financial problems were behind them.

1. Lack of Motive Evidence

Defendantâ€™s daughters, Courtney,
Briana, and Ashtin, and two of Cristiâ€™s five siblings, testified that defendant
and Cristi had â€œa very good marriage,â€ got along well, and were very loving and
passionate toward each other. Defendant
and Cristi had a financially comfortable lifestyle during the last year of
Cristiâ€™s life, and Cristi was happy the week before her death. During the week before she died, Cristi
talked to Briana about â€œthis being one of the happiest times of her life.â€

            2. Defendantâ€™s Direct Testimony

            Defendant
testified that when he and Cristi met in 1978 he was in the Air Force working
as a law enforcement specialist. They
married in 1978 and had three daughters, Courtney, Briana, and Ashtin, in 1984,
1986, and 1988. Defendant and Cristi
generally enjoyed a healthy marital life, and the last two years of Cristiâ€™s
life were probably the best years of the coupleâ€™s marriage. At the time of trial, defendant still had a
good relationship with Cristiâ€™s parents, and he was still close to Cristiâ€™s
sister Kathy and his brother-in-law Chuck.

In 1994, defendant retired from
the San Bernardino Police Department and thereafter moved with his family to
Cascade, Idaho, where he
worked for the Cascade Police Department for three years. He then became the chief of police for the
City of Emmet, Idaho, where he was
ultimately convicted of misusing public funds for personal use, a felony. He pled guilty and served 10 months in jail
during 2000. Upon his release, his law
enforcement career was over.

Before defendantâ€™s conviction in
the Idaho case, Cristi
and the girls moved back to California. Before defendant went to jail, Cristi began
training to become an X-ray technician.
She continued training during 2000 and 2001, completed her training, and
began working for the County of San
Bernardino at Arrowhead Regional Medical Center. Defendant and Cristi remained close while
defendant was in jail.

When defendant was released from
jail at the end of 2000, the family finances were â€œ[r]ough, at best.â€ When defendant returned home, he worked a
short time in the auto/boat sales business.
During 2001 or 2002, he opened his own business performing criminal
background checks for companies on their prospective employees. His business grew between 2003 and 2005, and
by 2005 the family standard of living was better than ever. The familyâ€™s gross income in 2004 or 2005 was
$295,000. In 2004 or 2005, Courtney went
to college, followed later by Briana, then Ashtin. Defendant and Cristi helped each girl pay for
college.

Defendant testified on direct
that 2007 was the familyâ€™s best year financially. But on cross-examination, he could not recall
the amount of his after-tax income or the amount of income he declared on his
income tax returns for 2007. He also
admitted that he and Cristi may have had as little as $50,000 in net income
during 2007.

On June 7, 2007, defendant got up around 4:30 a.m. or 5:00 a.m. to turn on
the spa to get it warm so they could bathe in it because they did not have a
working shower that day. He went back to
bed, got up again around 5:30 a.m., and called
Briana, who was away at college, to wake her so she could go running. Cristi also got up around 5:30 a.m., put on her bathing suit, and got ready to get
into the spa. On their way out to the
spa, Cristi tried to wake Courtney, but Courtney did not go to the spa with
them.

Defendant and Cristi stayed in
the spa together for around 45 minutes.
Cristi bathed and put her face into the spa water. After bathing, Cristi got out of the spa to
get another cup of coffee and use the restroom while defendant sat in the spa
alone for another five minutes.
Defendant then got out of the spa and walked a few steps around the pool
to look at some soap bubbles that had seeped into the pool from the spa. He then went inside the house to use the
restroom and was in there for five minutes or so. It takes 15 to 20 seconds to walk from the
spa to the home. As he walked out of the
restroom, the door to Courtneyâ€™s room was ajar and he pushed it open, hit the
wall, and told Courtney to get up.

Defendant then walked out to the
backyard again. He did not know anything
was wrong until he walked up to the pool deck and saw Cristi floating face down
in the spa. He jumped into the spa with
his shoes on, put his arms under Cristiâ€™s armpits, tried to pull her out of the
water, and yelled for Courtney. It was
difficult for him to lift Cristi out of the water by himself because she
weighed nearly 200 pounds. Courtney
helped him pull Cristi out of the spa, and they laid her on the pool deck. He gave breaths to Cristi while Courtney
performed chest compressions. Although
his shoes were on when he pulled Cristi out of the spa, he believed he was
barefoot when he administered CPR.

3. Defendantâ€™s Testimony Under
Cross-examination

On cross-examination, defendant
admitted that in light of Courtneyâ€™s testimony that Cristi came to her room
between 6:00 a.m. and 6:10 a.m., he and Cristi could have gone to the spa
between 6:00 a.m. and 6:10 a.m., not 5:30 a.m., and could not have been in the
spa together for a half an hour, let alone 45 minutes as he testified.

Defendant claimed that after
Cristi finished washing herself in the spa, she went into the house to get more
coffee, use the restroom, and wake Courtney.
He passed Cristi in the doorway as he was going inside after using the
spa, Cristi was coming back outside, and Cristi told him she tried to wake
Courtney. Although he believed Cristi
was going back to the spa after they passed each other in the doorway, he did
not ask her why she was going back to the spa after she had already washed
herself and the spa water was now dirty.

When he passed Cristi on his way
back to the spa, defendant was going into the house to use the bathroom. While in the bathroom, that looks out to the
spa area, he never heard any splashing, did not hear anyone scream, and did not
hear any other sounds coming from the spa area.

When asked whether he did
anything that might look as though he was holding Cristi under water, defendant
said that Cristi â€œmayâ€ have been washing her face by dunking it into the
spa. But during the police interview, he
never provided this explanation to the detectives, despite being asked to
explain why it would look like his wifeâ€™s face was under water. During the police interview, he never
mentioned that Cristiâ€™s face was in the water at any time.

Defendant did not use the cell
phone by the spa to call 911, but called Courtney out to the yard to call
911. He did not recall whether he began
giving Cristi CPR right after he and Courtney got Cristi out of the spa, but he
admitted he performed no chest compressions even after Courtney left the spa
area to open the front door and gate for the first responders. He did not have any injuries on his feet
before June 7, and claimed he must have incurred the injuries when he was
giving breaths to Cristi.

4. Dan Witteâ€™s Testimony

Dan Witte testified that, in May
2007, he contracted with defendant and Cristi to remodel their bathrooms into
one large bathroom. On June 7, Witte was
scheduled to arrive at the Hall house around 7:00
a.m. to begin work for the day. At
that time, he had been working on the Hall house for around two weeks, and
defendant and Cristi seemed to get along well.
They did not argue and readily agreed about questions concerning the
remodel. Witte admitted that, before
June 7, defendant gave him a check for $5,000, but before Witte attempted to
deposit the check he discovered that the bank account on which it was drawn had
insufficient funds to cover it, and he was never paid for any of his work.

5. Expert Testimony Regarding
the Source of the Scream

Two of the Hallsâ€™ neighbors
testified they did not hear a woman scream on the morning of June 7, 2007.

Genevieve Heckman, Ph.D., a human
factors expert, concluded that the source of the scream Patterson and Lopez
heard did not come from Cristi, and that Patterson could not have seen
defendant holding Cristi under water.
Dr. Heckman generally testified that people can misidentify sound if the
context in which it is heard is misleading; memories can be distorted by
recalling an event multiple times; distance affects ability to perceive facial
expressions; people tend to overestimate the duration of events they
experience; and distance affects depth perception.

Dr. Heckman performed a vantage
point study at the Hall residence to demonstrate the principle that the larger
the distance from point A to point B, the larger the compression of depth to
the observer. Dr. Heckman took two sets
of pictures of her assistant posing in the spa with a mannequin. The first set of pictures was taken from the
wall separating the Hall and Lopez houses and showed the person and the
mannequin in the spa, positioned in three different distances from one
another. The second set of pictures was
taken from a closer vantage point and showed that when the figures appeared to
be touching from the farther vantage point, they actually were not. Dr. Heckman admitted that the two sets of
pictures were not taken at the two vantage points simultaneously, thus
permitting the mannequin to shift or drift while she walked from one vantage
point to another.

6. Dr. Frank Sheridanâ€™s Expert
Testimony That Cristi Accidentally Drowned

Dr. Frank E. Sheridan, a forensic
pathologist and the chief medical examiner in the coronerâ€™s division of the San
Bernardino County Sheriffâ€™s Department, testified for the defense that Cristiâ€™s
death was consistent with an accidental drowning, but he could not rule out the
possibility that the death was a homicide.

During the course of his career,
Dr. Sheridan had performed many autopsies on drowning victims, and had rendered
opinions that certain drownings were accidental and others were homicides. He reviewed the autopsy report prepared by
Dr. McCormick, photographs taken of Cristi at the hospital and during the
autopsy, police reports, witness statements, and prior testimony in the
case. He also went to the Hall home and
observed the spa, and observed that it was â€œa very dangerous spa.â€ The spa had no handrails and stairs leading
down into it, raising the possibility of falling, and there was a larger
distance down to the second step than to the first step. In addition, one of the corners of the spa
protruded toward the center and was opposite to the stairs leading down into
the spa.

Dr. Sheridan agreed with Dr.
McCormick that the cause of Cristiâ€™s death was drowning, but opined that the
severity of the larger laceration to her head was consistent with the force
involved in a fall from a standing position, or with her falling and hitting
her head on any edge of the spa. The
injury â€œ[a]lmost certainlyâ€ would have rendered Cristi unconscious. The injuries to Cristiâ€™s mouth, torso, and
ribs also could have been caused by a fall, taking her out of the spa, or
efforts to resuscitate her. Dr. Sheridan
admitted, however, that the two lacerations to Cristiâ€™s head were not caused by
the same impact.

Dr. Sheridan believed that the
petechia in Cristiâ€™s body was caused when she died face down and tilted with
her head lower than her feet and toward the bottom of the spa. Given the configuration of the spa, he opined
that if Cristi fell, then her feet would have been held up by the seating tiers
and her head would have been lower than her feet. He was not aware that defendant testified he
found Cristi with her head floating close to the surface of the water.

C. Prosecution Rebuttal

            1. Dr. Craig Nelsonâ€™s Expert Rebuttal
Testimony

            Dr. Craig Nelson, a forensic pathologist
and the deputy medical examiner for San Diego County, examined the
autopsy report, coronerâ€™s investigation, photographs taken at the scene,
hospital, and autopsy, and other evidence in the case, and concluded that the
cause and manner of Cristiâ€™s death was drowning by homicide. Like Dr. McCormick, Dr. Nelson believed there
were too many injuries in different locations on Cristiâ€™s body to be consistent
with a slip and fall and subsequent drowning.
The two lacerations on Cristiâ€™s head were not caused by a single fall,
and the larger one was consistent with someone taking her head and slamming it
into the side of the spa. Further,
petechial hemorrhages are not normally present in accidental drownings, and the
number of petechial hemorrhages on Cristi far exceeded what would be expected
from resuscitation efforts.

2. The Police Officersâ€™
Rebuttal Testimony (Defendant Not Honest)

Raymond Chopko, a police
detective in Idaho, met defendant in Cascade, Idaho in 1996, considered himself
a friend of defendantâ€™s, and got to know defendant fairly well between 1996 and
2000. They worked together in law
enforcement for nearly two years, their daughters attended the same school, and
their families socialized with each other, including on weekends. Based on his professional and personal
experiences with defendant, Detective Chopko opined that defendant was
â€œprobably the biggest con man Iâ€™ve ever met in my life.â€ On cross-examination, Detective Chopko
admitted he had not spoken with defendant since 1998.

Jerald Winkle worked for the Los
Angeles Police Department for 23 years and retired as a lieutenant. He met defendant in Idaho when he and
other police officers, including Detective Chopko and ex-police officers like
himself, met to play cards and have dinner.
Winkle was a friend of defendant and his family when they lived in Idaho, around 15
years before trial. Based on his
relationship with defendant, Winkle opined that defendant was â€œnot honest,â€ and
he was ashamed â€œto bring up the fact that [defendant] was [or had been] a
police officer.â€ Like Detective Chopko,
Winkle had not spoken to defendant since 1998, when defendant left Idaho.

3. Rebuttal Testimony of
Cristiâ€™s Friends and Coworkers

            Cynthia
Rojas was one of Cristiâ€™s coworkers and friends. Rojas had known Cristi for about a year
before her death and took breaks with her at work. When Rojas first met Cristi, she was â€œhappy,
bubbly,â€ and â€œoutgoing,â€ and would say â€œgood morningâ€ to everyone. About three weeks before Cristiâ€™s death,
Rojas noticed a â€œbig differenceâ€ in Cristiâ€™s personality; she became â€œvery
quiet. She looked sadâ€ and â€œanxious,â€
and was â€œmoody.â€ Rojas had not seen
Cristi act moody prior to the three weeks before her death.

            Leticia
Valenzuela was also friends with Cristi at work and knew her for about three
years before her death. During the week
before Cristiâ€™s death, Valenzuela noticed a significant change in Cristiâ€™s
personality. Cristi became very serious,
appeared to have a lot on her mind, and stopped greeting people when she
arrived at work. Contrary to her normal
disposition, she did not appear happy and seemed upset at something. Normally, Cristi would greet everyone and was
friendly.

            Taffy
McDowell was also Cristiâ€™s friend and coworker.
They took their breaks and lunches together. When McDowell first met Cristi, Cristi was
happy-go-lucky, cheerful, outgoing, caring, and kind. One time when she had lunch with Cristi,
McDowell complimented Cristi on her family and her relationship with her
husband. In response, Cristi â€œsaid at
one point in time [Cristi did not say when] it had got that bad where they were
contemplating divorce.â€ McDowell also
noticed a big change in Cristi a week or two before her death; she was
introverted, was â€œdistantâ€ to everyone, and seldom came out of her office. McDowell said â€œit looked like the life had
been sucked out of her[.]â€

            Julie
Dietel was â€œbest friendsâ€ with Cristi and had known her since 1999. When they first met, Cristi was always in a
good mood and could make anyone laugh, and have a good time. Between 2006 and 2007, Dietel spoke with
Cristi on the telephone almost every day.
About six months before Cristiâ€™s death, Dietel noticed that Cristiâ€™s personality
changed; she was unhappy and in a bad mood.
Dietel asked Cristi what was wrong, and Cristi told her she was mad at
their boss. Dietel did not believe that
what was affecting Cristi was work-related, however. On cross-examination, Dietel said she
believed Cristiâ€™s marriage to defendant was â€œgreatâ€ up until the time Cristi
died; they appeared to love each other.

III. DISCUSSION

A. Issues Concerning Andrea Zaferesâ€™s Expert Qualifications and Testimony

Andrea Zaferes testified as an
expert for the prosecution on water-related deaths, and opined that Cristiâ€™s
drowning death was a homicide, not accidental.

Defendant essentially raises two
claims concerning Zaferesâ€™s testimony.
He claims the court erroneously failed to conduct a hearing outside the
presence of the jury and before Zaferes testified to determine whether Zaferes
was qualified to testify as an expert on whether water-related deaths were
homicides or accidents. Second, he
claims Zaferes was not qualified to render â€œan expert medical opinionâ€ that
Cristiâ€™s drowning death was nonaccidental because she was not a medical
doctor. Neither claim has merit.

1. Relevant Background

            (a) The
Settled Statement Hearing

On March 2, 2012, and at the request of appellate counsel, the
court held a settled statement hearing to settle or determine the content of
certain unreported, in-chambers discussions that were not later summarized on
the record. (Cal. Rules of Court, rule
8.137.) During the hearing, the court
and parties agreed that, before Zaferes testified, defense counsel objected to
her testimony on two grounds: (1) she
was not qualified to testify as an expert on whether Cristiâ€™s drowning death
was accidental or intentionally caused, and (2) whether a drowning death was
accidental or intentionally caused is not a proper subject for expert opinion.

At the hearing, the court
said: â€œI do believe the issue came up,
which was, not only she, as an individual, wasnâ€™t qualified, and I believe what
we said is, [w]ell, Iâ€™m going to have to hear her. And I couldnâ€™t make a decision and didnâ€™t
make a decision in chambers. And I did
hear her and made a decision she was qualified.
[¶] And as for the issue that no person could
opine such things, again, I said, I have to hear her. So I did hear her, and I did permit her to
give the opinions. So I donâ€™t knowâ€”if
you just want the record to reflect that the issues were raised so thereâ€™s no
waiver on appeal, I have no problem with that.â€
The prosecutor agreed that the defense had preserved the issues for
appeal.

Defense counsel than added: â€œThere were objections made that I had made
during the testimony even though we had discussed in chambers that the defense
would object to this. The thing is at
the time that I made the objection, I didnâ€™t make a long record as we had
already discussed at length the reasons why we thought the objections were
valid. So I tried to preserve the issue
as best I could by objecting at trial but didnâ€™t in front of the jury make a
long record because of the conversations we had had in chambers, and I explained
that to [appellate counsel].â€

During the settled statement
hearing, defense counsel at no time asserted that he asked the court to conduct
a hearing, outside the presence of the jury and before Zaferes testified, to determine whether Zaferes was
qualified to testify as an expert on any issue.
To the contrary, based on defense counselâ€™s comments during the settled
statement hearing, it appears that he was satisfied to challenge Zaferesâ€™s
expert qualifications, or take her on voir dire, when she testified before the
jury.

            (b) Zaferesâ€™
Qualifications

At trial, the prosecutor called
Zaferes as a witness and, before eliciting any expert opinions, examined her at
length concerning her background, and qualifications. Zaferes was currently employed as a â€œmedical
legal death investigator for the Dutchess County Medical Examinerâ€™s office in New York,â€ and had
been for seven years. She had worked as
an EMT for 19 years, and had a bachelorâ€™s degree in psychology. As an EMT, she administered CPR over 30 times
and worked on cases involving head lacerations, mostly from car accidents, some
falls, and a few assaults.

As a medical-legal death
investigator, whenever there was a â€œreportable deathâ€ in Dutchess County, Zaferes was
responsible for determining whether the medical examinerâ€™s office investigated
the death to determine whether it was a homicide or suicide. Her duties included visiting the scene of the
death to examine the body and the scene, reviewing witness statements,
interviewing law enforcement and medical personnel, and writing a report. She had â€œworked over 600 deathsâ€ and had been
â€œon 150 to 160 death scenes.â€ She also
taught detectives how to interview witnesses â€œfor specific water-related
incidents.â€

Around 20 years before trial,
Zaferes helped found, and continued to work with, an organization called
â€œRiptide,â€ that assisted law enforcement agencies and families in investigating
water-related deaths and bodies found in water.
For Riptide, she reviewed materials, asked questions, and helped
determine whether the water-related deaths were homicides, suicides, or
accidents.

She had worked on over 100
homicidal drowning investigations and had spent hundreds of hours on 30 to 40
of those cases. At any given time, she
was working on two to three homicidal drowning cases. She regularly kept herself informed of the
latest research and trends in the field of water rescues and homicidal
drownings.

She also taught â€œwater rescueâ€
for a company called Lifeguard Systems; taught fire, police, military and U.S.
Coast Guard personnel â€œhow to find bodies and evidence in the waterâ€ and â€œhow
to process water-related scenesâ€; and worked pro bono as â€œthe water consultantâ€
for the National Center for Missing
and Exploited Children.

Since 1987, she had taught
â€œhundreds and hundreds of peopleâ€ how to perform CPR in water-related
conditions, including how to get a person out of a pool, ocean, or lake and
onto a dock, boat, or beach, and perform CPR in those conditions. In addition, she taught â€œwell over a thousand
law enforcement and death investigators in a 24-hour or 16-hour program [she]
created called Body Found in Water in Homicidal Drowning Investigations.â€

She was an associate member of
the National American Medical Association, the International Association of
County Coroners and Medical Examiners, the American Academy of Forensic
Sciences, the New York State Coroners and Medical Examiners Association, the
Water Safety Congress, and â€œa few other smaller water and forensic relatedâ€
organizations. She had spoken â€œat over
77 aquatic and medical conferences,â€ and â€œat over 33 forensic conferences for
death investigators and law enforcement on the topic of how to investigate a
water death.â€

            (c) Defense
Counselâ€™s Examination of Zaferes

During the prosecutionâ€™s direct
examination of Zaferes, defense counsel at no time objected that Zaferes was
not qualified to testify as an expert witness on any issue. (Evid. Code, §§ 720, 801.)href="#_ftn1" name="_ftnref1" title="">^{^[1]} In cross-examining Zaferes, the defense
questioned Zaferesâ€™s background and qualifications, including the number of times
she had testified as an expert witness and her educational background.

The defense established that
Zaferes had no advanced degrees. She had
never attended medical school and was not a medical doctor, medical examiner,
or coroner. Zaferes acknowledged that
forensic pathologists are licensed medical doctors, and that forensic pathology
is a branch of pathology concerned with determining the cause of death and the
circumstances surrounding the death.

Zaferes agreed that, in California, only licensed
forensic pathologistsâ€”that is, medical doctors concerned with determining the
cause of deaths and the circumstances surrounding deathsâ€”can be medical
examiners. The defense also established
that Zaferesâ€™s work did not include performing autopsies or incisions, but
Zaferes pointed out that she assisted with the autopsies and asked questions,
and that the medical examiner consulted with her in water-related cases. The following colloquy then ensued:

            â€œ[DEFENSE
COUNSEL:] In California to have the
credential as a medical examiner, you must first be a licensed forensic
pathologist.

            â€œ[ZAFERES:] Thatâ€™s correct.

            â€œ[PROSECUTOR:] I am going to object as irrelevant to this
line of questioning.

            â€œTHE
COURT: Well, under [section] 352 we are
going to move to a different subject, but nothing will be stricken.

            â€œ[DEFENSE
COUNSEL:] Your expertise does not
include the medical examination of tissues under a microscope.

            â€œTHE
COURT: Counsel, weâ€™re moving on. Weâ€™ve established this point.

            â€œ[DEFENSE
COUNSEL:] And, ultimately, it is the job
of a forensic pathologist to make a determination . . . .

            â€œTHE
COURT: Counsel, weâ€™re making the same
point over and over. Weâ€™re moving
on. [¶]
. . . [¶]

            â€œ[DEFENSE
COUNSEL:] The determination of homicide
versus accident, ultimately is that of a medical examiner; correct?

            â€œ[ZAFERES:] Depending on the state. Sometimes itâ€™s the coroner or deputy
coroner.â€

2. Analysis/Failure to Conduct
Section 402 Hearing

Defendant first argues that the
court was required to conduct a hearing, outside the presence of the jury and
before Zaferes testifiedâ€”apparently on the courtâ€™s own motion and in the
absence of defense counselâ€™s request for such a hearingâ€”to determine whether
Zaferes was qualified to testify as an expert witness. Defendant is mistaken. The court had no such sua sponte obligation.

The record on appeal, including
the matters discussed during the settled statement hearing on March 2, 2012,
does not show that the defense ever asked the court to conduct a hearing
outside the presence of the jury so that the defense could question or voir
dire Zaferes concerning her qualifications to testify as an expert, and so that
the court could expressly rule on whether she was qualified to testify before
she testified. Defendant cites no
authority to support his claim that the court was required to conduct such a
hearing on its own motion, in the absence of any request for such a hearing.

As defendant points out, a
witness may not testify as an expert before his or her qualifications to
testify as an expert have been â€œshown.â€
(§ 720, subd. (a) [â€œ[a]gainst the objection of a party, [a
witnessâ€™s] special knowledge, skill, experience, training, or education >must be shown before the witness may
testify as an expert.â€ (Italics
added.)].) But this does not mean that
an expert witnessâ€™s qualifications can
only be shown in a hearing
conducted outside the presence of the jury and before the witness
testifies.

To the contrary, the procedure
followed hereâ€”direct examination by the prosecutor concerning the witnessâ€™s
qualifications before the witness renders any expert opinionsâ€”is proper and
commonly followed. (See 1 Jefferson,
Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2009) Opinion Testimony From Expert
and Lay Witnesses, § 30.19, p. 669 [â€œIt is common for the proponent of
expert opinion testimony to first ask the witness questions concerning the
expertâ€™s qualifications to testify. This
is commonly called â€˜voir diringâ€™ the expert.
If there is no objection, the proponent continues with questions
concerning the case.â€].)

Further, nothing in sections 400
to 406 or 720 requires the court to conduct a hearing outside the presence of
the jury and before a witness testifies, to determine whether the witness is
qualified to testify as an expert, in the absence of a request for such a
hearing. To the contrary, section 402
states: â€œ(a) When the existence of a preliminary fact is
disputed, its existence or nonexistence shall be determined as provided in this
article. [¶] (b)
The court may hear and
determine the question of the admissibility of evidence out of the presence or
hearing of the jury . . . .â€
(Italics added.) Nothing in
section 405 is to the contrary.

In a similar vein, defendant
complains that the court â€œfailed to require a showingâ€ of Zaferesâ€™s expert
qualifications â€œas described by the statute.â€
Not so. Zaferesâ€™s qualifications
were â€œshownâ€ during the prosecutionâ€™s direct examination of her, before she
rendered any expert opinions.
(§ 720, subd. (a).)

Nor does the record support
defendantâ€™s assertion that the court failed to find that Zaferes was qualified
to testify as an expert. Whether a
witness is sufficiently qualified to testify as an expert is a fact to be
determined by the court, not the jury, before the witness may testify as an
expert. (See Fairbank v. Hughson (1881) 58 Cal. 314, 315;
§§ 310, 400-406,href="#_ftn2"
name="_ftnref2" title="">^{^[2]} 720, subd. (a).) As a general rule, the qualifications of a
witness to testify as an expert is made by the court pursuant to section 405; >Martin v. Superior Court (1991) 230
Cal.App.3d 1192, 1200.)href="#_ftn3"
name="_ftnref3" title="">^{^[3]}

After Zaferes testified on direct
examination concerning her qualifications, the court implicitly found that she
was qualified to testify as an expert before the court allowed her to render
any expert opinions. During the settled
statement hearing, the court recalled that the issue of Zaferesâ€™s
qualifications â€œcame upâ€ during off-the-record discussions in chambers. The court explained: â€œI believe what we said is, [w]ell, Iâ€™m going
to have to hear her. And I couldnâ€™t make
a decision and didnâ€™t make a decision in chambers. And I did hear her and made a decision she
was qualified.â€ Given that the defense
did not ask the court to rule on Zaferesâ€™s qualifications, there was no need
for the court to make its finding explicit.

Lastly, we disagree that the
court â€œfurther erred by restricting cross-examination of [Zaferes] regarding
her medical expertise.â€ Defendant points
to the portion of defense counselâ€™s cross-examination in which the court
sustained its own section 352 objection to asking Zaferes whether, in California, a medical
examiner had to be a licensed forensic pathologist, and whether her expertise
included examining tissue under a microscope.
That objection was properly sustained because counselâ€™s questions were
cumulative. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385 [trial court has
broad discretion to limit â€œmarginally relevant and cumulativeâ€
questions].) Moments earlier, defense
counsel asked Zaferes, and Zaferes acknowledged, that she was not a forensic
pathologist, she did not perform autopsies, and the duty of a forensic
pathologist was to determine the cause of death, and the manner or
circumstances surrounding the death.

3. Analysis/Zaferesâ€™s Expert
Qualifications and Opinion

            Defendant
claims that Zaferes was not qualified to â€œgive a medical opinionâ€ that Cristiâ€™s
drowning was not accidental because she was not a medical examiner or forensic
pathologist, and had no medical school training. We disagree.

            â€œA
person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates.â€
(§ 720, subd. (a).) Expert
opinion testimony is limited to a subject â€œthat is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact
. . . .â€ (§ 801,
subd. (a).) â€œâ€˜The qualification of
expert witnesses, including foundational requirements, rests in the sound
discretion of the trial court. [Citations.] That discretion is necessarily broad: â€œThe competency of an expert â€˜is in every
case a relative one, i.e., relative to the topic about which the person is
asked to make his statement.â€™
[Citation.]â€ [Citation.] Absent a manifest abuse, the courtâ€™s
determination will not be disturbed on appeal.
[Citations.]â€™ [Citation.]â€ (People
v. Casteneda (2011) 51 Cal.4th 1292, 1336.)

            Defendant
argues that Zaferes was not qualified to opine that Cristiâ€™s drowning death was
not accidental because she was not a medical examiner or forensic pathologist,
and had no graduate or medical school training.
However, formal education and professional degrees are not required to
render an expert opinion. (>People v. King (1968) 266 Cal.App.2d
437, 443.) Rather, â€œ[t]he foundation
required to establish the expertâ€™s qualifications is a showing that the expert
has the requisite knowledge of, or was familiar with, or was involved in, a
sufficient number of transactions involving the subject matter of the opinion.â€ (Howard
Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115.)

A sufficient foundational showing
for Zaferesâ€™s opinion was made here. On
direct examination, Zaferes testified at length concerning her background and
experience in determining, and in helping others determine, whether
water-related deaths are accidents, suicides, or homicides. Given the breadth and longevity of her
experience in advising medical examiners, forensic pathologists, law enforcement
personnel, and others concerning how to investigate water-related deaths and
determine whether they were accidents, suicides, or homicides, Zaferes was, as
the People argue, â€œuniquely qualifiedâ€ to render an opinion that Cristiâ€™s
drowning death was not accidental.
Whether Cristiâ€™s drowning death was an accident or homicide was not a
â€œmedical causation issueâ€ which can only be determined by expert medical
testimony. (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379,
384.)

Finally, defendant relies on
several cases in which the courts concluded that an expert was not qualified to
opine on a question that fell outside the area of the expertâ€™s special
knowledge, skill, experience, training, or education.href="#_ftn4" name="_ftnref4" title="">^{^[4]} The cases are inapposite because the question
of whether Cristiâ€™s drowning death was accidental was a question falling well
within the realm of Zaferesâ€™s training and experience.

B. The Rebuttal Testimony of
Cristiâ€™s Coworkers That Cristi Was Dejected

Defendant next claims the court
erroneously allowed the prosecutor to present the rebuttal testimony of
Cristiâ€™s friends and coworkers that Cristi was dejected at work during the
weeks before her death. He argues that
the coworkersâ€™ testimony was irrelevant to rebut the defense claim that
defendant and Cristi had a happy marriage, and were happy during the weeks
preceding Cristiâ€™s death, because there was no showing that Cristiâ€™s
dejectedness at work had anything to do with him.

Of course, only relevant evidence
is admissible (§§ 210, 350), and all relevant evidence is admissible
unless excluded under the federal or state Constitutions or by statute (>People v. Heard (2003) 31 Cal.4th 946,
972-973). Relevant evidence is defined
as â€œevidence . . . having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the
action.â€ (§ 210.) The court has broad discretion in determining
whether evidence is relevant, but lacks discretion to admit irrelevant
evidence. (People v. Scheid (1997) 16 Cal.4th 1, 14.) We review the courtâ€™s rulings on the
admissibility of evidence for abuse of discretion. (People
v. Cowan (2010) 50 Cal.4th 401, 482.)

The court did not abuse its
discretion in admitting the coworkersâ€™ testimony. The testimony was relevant to rebut the
defense claim that defendant and Cristi had a happy marriage and, more
specifically, that Cristi was â€œthe happiest she had ever been[.]â€ The defense not only claimed that defendant
and Cristi had a happy marriage, it also claimed that, during the week before
her death, Cristi told two of her daughters that she was â€œthe happiest she had
ever been[.]â€ Further, the defense
claimed that Cristi was the happiest she had ever been precisely because she
and defendant had such a happy marriage and were so happy together. Thus, contrary to defendantâ€™s argument, the
evidence that Cristi was dejected at work during the weeks before her death was
relevant to rebut the defense claim that Cristi was happy, and that she and
defendant were happy together.

Defendant also claims that the
coworkersâ€™ testimony should have been excluded under section 352 because it was
unduly prejudicial, or likely to evoke an emotional response against him. Not so.
The court has discretion to exclude relevant evidence if its probative
value is substantially outweighed by the probability its admission will result
in â€œundue prejudice.â€ (§ 352; >People v. Zapien (1993) 4 Cal.4th 929,
958.) In this context, unduly
prejudicial evidence is that which â€œâ€˜â€œuniquely tends to evoke an emotional bias
against the defendant as an individual . . . .â€â€™â€ (People
v. Alexander (2010) 49 Cal.4th 846, 905.)
Nothing about the coworkersâ€™ testimony was likely to evoke an emotional
bias against defendant.

C. The Rebuttal Testimony That Cristi and Defendant Once Contemplated
Divorce

            One
of Cristiâ€™s friends and coworkers, Taffy McDowell, testified in rebuttal that
one time when she and Cristi had lunch together, McDowell complimented Cristi
on her family and her relationship with her husband. In response, Cristi â€œsaid at one point in
time it had got that bad where they were contemplating divorce.â€ McDowell did not say when Cristi and defendant contemplated divorceâ€”whether it was
shortly before Cristiâ€™s death or many years earlier.

            Defendant
claims that McDowellâ€™s testimony was irrelevant to rebut the defense claim that
Cristi was happy at the time of her death because there was no showing >when Cristi and defendant contemplated
divorce. He also claims the testimony
should have been excluded under section 352 because it was likely to mislead
the jury to believe, without any evidentiary basis, that he and Cristi were
contemplating divorce near the time of her death.

We find no abuse of discretion in
the admission of the testimony. Not only
did the defense claim that defendant and Cristi had a good marriage near the
time of her death, it claimed they had a good marriage, and suggested there
were never any serious problems during the marriage. McDowellâ€™s testimony was relevant to rebut
this claim. (People v. Scheid, supra, 16 Cal.4th at p. 14 [court has broad
discretion to determine whether evidence is relevant].)

Nor was the evidence likely to mislead the jury to believe
that the parties were necessarily contemplating divorce near the time of
Cristiâ€™s death. (§ 352.) In closing argument, the prosecutor
told the jury: â€œI want to be clear about
this conversation with Taffy McDowell.
Itâ€™s unclear what time period Taffy is suggesting to you that they were
contemplating divorce. And it certainly
might have been in the past before June
7th, 2007, but Iâ€™m submitting to you that information
because it reflects that [it] isnâ€™t a perfect marriage. Itâ€™s
not an ideal situation that the defense has attempted to make it out to be.â€ (Italics added.)

D. The Rebuttal Testimony of Defendantâ€™s Former Friends and Fellow Police
Officers

Defendant next claims the court
prejudicially erred in admitting bad character evidence against him,
specifically, the rebuttal testimony of Idaho Police Detective Raymond Chopko
that defendant was â€œprobably the biggest con man [Detective Chopko had] ever
met in [his] life,â€ and the rebuttal testimony of former Los Angeles Police
Department Lieutenant Jerald Winkle, who testified that defendant â€œwas not
honest.â€

Defendant concedes that when he
testified in his own defense and denied his guilt, he placed his reputation for
truth and honesty in issue. (>People v. >Taylor (1986) 180
Cal.App.3d 622, 631; § 780, subd. (e).)
He argues, however, that â€œ[t]here were two problems with the courtâ€™s
ruling allowing the . . . police officers to give their opinion
regarding [his] honesty. [¶] The first problemâ€ with the officersâ€™
testimony is that their opinions were â€œbased primarily upon prior incidents the
court held were inadmissible.â€ We find
no merit to this claim.

Before trial, the court ruled
that the prosecution would not be allowed to impeach defendantâ€™s testimony with
reputation evidence in the form of â€œspecific bad acts.â€ The proffered bad acts evidence included (1)
defendantâ€™s statement to Winkle, around 15 years before trial, that defendant
was receiving a disability retirement pension from the San Bernardino County
Sheriffâ€™s Department based on his claim that a carjacker shot him, when in fact
he shot himself in his leg; and (2) an incident in Idaho, witnessed by Detective
Chopko, in which defendant threw a bag of kittens into a river and drowned
them. At the time, defendant allegedly
told Detective Chopko that â€œâ€˜the wifeâ€™s cat had kittens again and I am not
going to have cats around.â€™â€

Defendant argues the admission of
Detective Chopkoâ€™s and Winkleâ€™s opinion testimony that he was a â€œcon manâ€ and
â€œdishonestâ€ â€œeffectively prevented defense counsel from cross-examining either
witness about the basis for his opinion and the opinions were therefor

P. v. Brock

Tue, 11 Mar 2014 22:03:54 GMT

P. v. Brock

Filed 12/19/13 P.
v. Brock 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 CALIFORNIA>

>

>FOURTH APPELLATE DISTRICT

>

>DIVISION TWO

>

THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON
ANTHONY BROCK,

Defendant and Appellant.

            E057175

            (Super.Ct.No. INF062840)

            OPINION

            APPEAL from the href="http://www.fearnotlaw.com/">Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

            Thomas K. Macomber,
under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D. Harris, href="http://www.mcmillanlaw.us/">Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Marissa Bejarano, Deputy Attorneys General, for
Plaintiff and Respondent.

            A jury convicted
defendant and appellant Brandon Anthony Brock of robbery (count 1 â€“ Pen. Code,
§ 211)href="#_ftn1" name="_ftnref1"
title="">^{^[1]} and found true an allegation
he personally used a firearm (§ 12022.53, subd. (b)). Defendant thereafter admitted suffering a
prior prison sentence (§ 667.5, subd. (b)). The court sentenced defendant to an
aggregate, determinate term of imprisonment of five years four months. On appeal, defendant contends the court
prejudicially erred in neglecting to give the standard href="http://www.fearnotlaw.com/">jury instruction, CALCRIM No. 332,
on expert witness testimony. We affirm.

FACTS

            On December 14, 2007, at approximately 5:10 p.m., the victim was
working on mailboxes in his workshop adjacent to his mobilehome. The victim had the solid wooden door to the
shed open, but the screen door closed.
He heard someone outside, so he went out to see if he could help the
individual. Defendant said he was
looking for Bill; the victim responded â€œâ€˜Iâ€™m Bill. What can I do for you?â€™â€; defendant said he
was told to come there, that â€œBill was the one with . . . all the shitâ€; the
victim told him he â€œmust have the wrong Bill.â€

The victim turned around and reentered his workroom. He then heard the wooden door close
behind him. The victim turned around to
see defendant standing with a sawed-off shotgun pointed at him. Defendant said â€œâ€˜This is a robbery.â€™â€ The victim replied â€œâ€˜Iâ€™m sorry. I donâ€™t have any money.â€™â€ Defendant asked â€œâ€˜Whatâ€™s in your . . .
pockets?â€™â€

The victim said â€œâ€˜Iâ€™ve got my wallet.â€™â€ He took his wallet out, walked over, and
handed it to defendant. Defendant then
asked what else the victim had in his pockets.
The victim responded he had a cigarette lighter and his car keys;
defendant told the victim to give them to him.
The victim went to hand defendant the items, but dropped them.

Defendant reached out in an unsuccessful attempt to catch them and
looked down at the lighter and keys; the victim attempted to knock the barrel
of the shotgun away, grabbed defendant toward him, and head butted him. The victim fell backward with defendant on
top of him. They began struggling for
possession of the shotgun; however, defendant had a sling on the shotgun around
his neck, so the victim could not get it away from defendant.

Defendant punched the victim on the side of the victimâ€™s face. The victim put his thumb inside the trigger
guard and squeezed it; the shotgun went off.
The shotgun fired a second time during the continued struggle. The victim kicked defendant in the groin area
forcing defendant off him. Defendant
took off running outside the door of the workroom with the victimâ€™s wallet and
keys. Two spent 12-gauge shotgun casings
were later found inside the workroom.

The victim called to his girlfriend inside the mobilehome to call the
police, which she did. He saw defendant
enter the passenger side of a dark-colored vehicle, which drove off. The victim described defendant to police as
white, 5â€™6â€ to 5â€™7â€, 160 to 180 pounds, 22 to 24 years old, and wearing an
eye patch over his right eye.

The victimâ€™s girlfriend testified that on the same date and time she
heard arguing and then â€œa great big boom.â€
She heard a second â€œbig boomâ€ shortly after. She then saw a figure in black go by, get in
the passenger side of a car backed into their driveway, and leave. She described the individual to police as
Hispanic, 5â€™5â€ or 5â€™6â€, 175 pounds, and between 24 and 25 years old.href="#_ftn2" name="_ftnref2" title="">^{^[2]}

On January
31, 2008, the victim identified defendant
from a photographic lineup. On November 1, 2010, the victim identified defendant in court as his assailant at the
preliminary hearing. The victim also
identified defendant at trial.

Fontana police
officer David Janusz testified he was on patrol on December 23, 2007, at around 1:22
a.m. when a vehicle without lights caught
his attention. He attempted to conduct a
traffic stop, but the car ignored his emergency lights and sirens and led him
on a high speed pursuit. The pursuit
ended when the vehicle crashed through three chain-link fences and the occupant
fled on foot. Janusz pursued the suspect
on foot until he apprehended him; the suspect was defendant.

As defendant fled, he discarded 12-gauge shotgun shells from his
pockets. Janusz handcuffed defendant and
put him in the rear seat of his patrol vehicle.
He then backtracked along the route of the foot pursuit and found three
12-gauge shotgun rounds. In defendantâ€™s
vehicle, he found a Mossberg 12-gauge pump-action shotgun loaded with five,
double-ought buck shells sitting on the driverâ€™s seat.href="#_ftn3" name="_ftnref3" title="">^{^[3]} Defendant was 24 years old
at the time, 5â€™8â€, 160 pounds, white, and had a href="http://www.sandiegohealthdirectory.com/">blind or deformed right eye.

Janusz additionally testified â€œ[t]hrough my training and experience,
I know that once a weapon is used, itâ€™s usually â€“ â€“ either the subject either
tries to sell it and/or give it to somebody else to hold it for them away from
their residence.â€ â€œThe term we usually
use is once the gun is hot, which means whoever is in possession of it has used
it in a crime and they believe that it could link them to a crime, they will
usually either try to sell that weapon or give it to somebody they trust to
store it for them.â€

DISCUSSION

            Defendant contends the court
prejudicially erred in neglecting to give, sua sponte, the jury instruction on
how to evaluate expert witness testimony.
Particularly, defendant argues Januszâ€™s testimony that a criminal rids
himself of a weapon used in a crime may have prejudicially compelled the jurors
to view Januszâ€™s testimony that defendant was arrested with another gun as evidence
corroborating the victimâ€™s identification of defendant as the perpetrator. Although the court erred in failing to
instruct the jury with CALCRIM No. 332, we hold defendant suffered no
prejudice.

â€œThe instruction called for by Penal Code section 1127b
must be given sua sponte where expert testimony has been received. [Citations.]â€
(People v. Reeder (1976) 65
Cal.App.3d 235, 241.) â€œHowever, the
erroneous failure to instruct on the weight of href="http://www.mcmillanlaw.us/">expert testimony is not prejudicial
unless the reviewing court, upon an examination of the entire cause, determines
that the jury might have rendered a different verdict had the omitted
instruction been given. [Citation.]â€ (Ibid.)

Here, defendant suffered no prejudice from the
courtâ€™s failure to instruct the jury with CALCRIM No. 332, because the
victimâ€™s testimony overwhelmingly supported the identification of defendant as
the perpetrator of the robbery. The
victim testified he had four big spotlights turned on in his workroom: â€œ[I]t was very well-lit in the work room [>sic].â€
The victim and defendant were face-to-face for approximately five
minutes: â€œIt seemed like an eternity . .
. .â€ The victimâ€™s description of
defendant to the police matched defendant.

The victim
identified defendant on three separate occasions: in a six-pack photographic lineup on January 31, 2008, at the preliminary hearing on November 1, 2010,
and at trial. The victim testified he
was 100 percent sure defendant was the perpetrator, he never had any doubt
it was defendant, and the trauma of the incident made him â€œsee that face every
now and then at night.â€ â€œWell, the
memory of that face in my memory, Iâ€™ll never forget it. Itâ€™s one of those things that I was so scared
at the time that Iâ€™d never forget his face.â€

Finally, the court instructed the jurors with both
CALCRIM Nos. 105 and 226 regarding their responsibility and the manner in which
to evaluate the credibility of witnesses.
Thus, in no way was the jury left with the impression they had to accept
the opinions of an expert witness as true.
(People
v. Dewitt (1950) 98 Cal.App.2d 709, 718 [Instruction given on evaluating
the credibility of witnesses relevant when determining whether court
prejudicially erred in failing to instruct on expert witness testimony.]; >People v. Lynch (1971) 14 Cal.App.3d
602, 609-610 [same].) Therefore, it was
not reasonably probable defendant would have obtained a more favorable outcome
had the court instructed the jury with CALCRIM No. 332.

DISPOSITION

            The judgment is
affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

                                                P.
J.

We concur:

RICHLI

                                             J.

CODRINGTON

                                             J.

id=ftn1>

href="#_ftnref1"
name="_ftn1" title=""> ^{^[1]} All further statutory references are to the Penal
Code unless otherwise indicated.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title=""> ^{^[2]} The victimâ€™s girlfriend told police she only
believed the perpetrator was a man by the way he walked, she did not get a good
look at him, only saw a portion of his face in the darkness, and defendant
appeared to be hiding his face from her.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title=""> ^{^[3]}> It was not the same shotgun used in the robbery of the victim. The victim described the shotgun used during
the robbery as a â€œRemington style semiautomatic shotgun that had been
modified. The barrel had been cut off,
and the butt part of the stock had been â€“ â€“ the shoulder part of the stock had
been also cut off or broken.â€ The only
similarity the two guns shared was that they were both 12-gauge shotguns.

Portuguez v. Espiritu

Tue, 18 Feb 2014 00:36:11 GMT

Portuguez v

Portuguez v. Espiritu

Filed 1/24/14 Portuguez v. Espiritu CA4/1

>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

>

MaKENNA PORTUGUEZ,

            Plaintiff and Respondent,

            v.

ETHAN
ESPIRITU,

            Defendant and Appellant.

D063222

(Super.
Ct. No. 37-2011-00060568-CU-HR-NC)

            APPEAL
from an order of the Superior Court of San
Diego County, Martin W. Staven, Judge.
Affirmed.

            Mara C.
Allard for Defendant and Appellant.

            Daniel M.
Horwick for Plaintiff and Respondent.

            MaKenna
Portuguez obtained a restraining order
to prevent Ethan Espiritu, a former friend and high school classmate, from
harassing her. Ethan appeals the order, claiming
the evidence was insufficient to support the trial court's finding that he had sent
certain unwanted text messages to MaKenna.
We affirm.

I.

BACKGROUND

In an application
for restraining orders, MaKenna alleged she and Ethan used to be high school
classmates and friends. MaKenna alleged
their friendship came to an end in the fall of 2011, when Ethan slapped her and
had her arrested on false charges of "domestic violence." MaKenna further claimed that over the next
several weeks, Ethan continued to contact her and sent threatening messages via
a free text messaging service; changed the passwords to her eâ€‘mail and other
Internet accounts; wrote and sent a letter to his own mother in MaKenna's name;
grabbed MaKenna's telephone and threw it to the ground; threatened to flatten
her friend Kyle's tires; physically abused and cyberbullied her; frightened her
with a gun; and threatened to kill her.
Based on these allegations, MaKenna requested orders to stop Ethan from
further harassing her. (Code Civ. Proc.,
§ 527.6.)

            Ethan
filed an answer to MaKenna's application in which he alleged her claims were "fabricated"
and asserted he "should be the one filing href="http://www.fearnotlaw.com/">harassment charges against her." Ethan denied slapping MaKenna, and claimed MaKenna
"grabbed [his] right arm [and] pulled very hard" while her friend Kyle
shouted accusations and obscenities at Ethan.
Ethan further alleged that although he had "no interest" in MaKenna,
she "was always trailing [him] in school." Ethan denied interfering with MaKenna's eâ€‘mail
and other Internet accounts or sending her text messages. Ethan claimed he had no access to her
accounts, and MaKenna actually sent him unwanted text and eâ€‘mail
messages. Ethan also denied MaKenna's
other allegations.

            The
trial court issued a temporary restraining order directing Ethan to stay at
least 100 yards away from MaKenna; forbidding him to contact, cyberbully, or
otherwise harass her; and prohibiting him from possessing a gun. The court also scheduled a hearing on MaKenna's
request for a restraining order of
longer duration.

            At
the hearing, MaKenna and Ethan testified and also introduced many documents. We shall present MaKenna's version of events
first and then turn to Ethan's. As will
appear, the two versions conflict in many respects.

            MaKenna
testified that in January 2010 she gave Ethan her eâ€‘mail address and password
so that he could set up a Skype account for her. When Ethan was at her home in December of
that year, she gave him the password for her home wireless Internet, and he
connected his telephone to her computer.
MaKenna testified that whenever she is at home, her telephone
automatically connects to the wireless Internet.

According to
MaKenna, Ethan started compromising her Internet accounts in mid-2011 and
continued to do so for several months. He
changed her passwords and enabled a password recovery feature that sent her new
passwords to his eâ€‘mail account.

            MaKenna
also testified that in the summer of 2011, various Internet accounts were
created in her name. Numerous messages concerning
her relationship with Ethan that appeared to be from MaKenna but actually were
not, were posted to or sent from these accounts. For example:

â€” Several
messages were posted over the course of a week on a Twitter account that
included MaKenna's name and a photograph from her Facebook page. Some messages contained abusive and obscene
language that expressed anger over the termination of the relationship, while
others mentioned a "Cinderella story" and expressed sadness the
relationship had ended.

â€” Comments
posted on a YouTube channel called "kutiekenna11," a combination of a
nickname for MaKenna and the number of Ethan's lacrosse jersey, suggested
MaKenna was lonely and wanted to rekindle a relationship with a former boyfriend.

â€” The
following message was sent from an eâ€‘mail address containing MaKenna's
name to Ethan's eâ€‘mail address: "I
love you, Ethan. Don't ever forget
it. If this is the end, always remember
that I'll be here for you. If you found
someone else, I wish you the best, but I thought you promised you'd never
leave."

            MaKenna
further testified that she received numerous unwanted communications from Ethan
in the summer and fall of 2011. For
example:

â€” In June, MaKenna
saw a photograph of a bride and groom kissing, which she claimed Ethan had
posted on the Internet. "Ethan and
MaKenna" appeared at the top of the photograph, and "Forever" appeared
at the bottom. A few days later, MaKenna
received an instant message from Ethan that said: "[H]ahaha. . . . [G]otta love this picture!!! <3 [I] luv Natalie[.] â˜º [F]**k you.
[I] never loved you[.] I was only
being nice."

â€” In July, Ethan
sent MaKenna nine text messages between 2:10 and 2:35 a.m. while she was visiting a friend in Texas. These messages annoyed MaKenna and disturbed
her sleep.

â€” In
October, Ethan sent MaKenna the following text message: "You['re] the only thing that picks me
[up] when [I']m down and [I']m addicted to us.
I[']ll never find anyone like you[.]
Baby[,] you['re] my number one and if you['re] leaving me[,] [I] don[']t
know what [I']m going to do[.] [I]f this
is what you want[,] then[] this is my goodbye to you[.] [I] will always be here for you. Never forget that."

â€” In
November, MaKenna received a series of text messages from Ethan while she was
riding home from school with her friend Kyle.
One of the messages stated: "I
knew you were a cheat. You always were. You lying bitch. I hope they [f]**k you and get you pregnant
so you can kill another one."
Another stated: "Girl[,] [I]
hate you. I wish[] you would
disappear. You messed up so don[']t even
come around me." When MaKenna
received these messages, she "was upset that [Ethan] would talk to [her]
that way."

â€” Later in
November, Ethan sent MaKenna three instant messages. One stated:
"I love you MaKenna Victoria Portuguez/Espiritu." Another stated: "I love you so much but you keep hurting
me[.] [¶] I don[']t know why you don[']t get that." And the third stated: " '[I] don[']t want another
pretty face, [I] don[']t want just anyone to hold, [I] don[']t want my love to
go to waste, [I] want you and your beautiful soul.' "

            From
December 2011 through February 2012, MaKenna testified she received several
text messages through a service called Pinger, which allows subscribers to send
text messages without paying a fee. The
messages included the following:

â€” "Keep
talking to Kyle and my revenge will be flattening his tires."

â€” "I
just played our old song and man it's crazy how things have changed. This time last year I would have never
imagined things like this. I miss you
and hope wherever you are and whatever you're doing, you're happy. Don't worry about me. I'm surviving one day at a time."

â€” "You
left [C]atholic school to go to a public school. Now you left public to go back to a private
[C]atholic school? If you think you're
escaping the problem, you aren't. I asked
people and they wouldn't tell me but I have my ways of finding things out." MaKenna found this message "pretty odd
and scary."

â€” "I
don't know why you keep changing your number when all I want to do is talk to
you. [S]eeing you Friday made me realize
what I've lost. [P]lease answer
back. I miss you."

Records obtained from Pinger listed an
account username that combined a nickname for MaKenna with Ethan's date of
birth, contained the eâ€‘mail address that was created in MaKenna's name in
the summer of 2011, and showed the messages originated from IP addresses for
MaKenna's telephone and home wireless Internet.
MaKenna denied sending the messages.

            MaKenna
testified she transferred to a different high school the day after she received
the text message from Ethan about flattening her friend Kyle's tires because
she "was tired of the harassment from Ethan." She also testified she wanted a restraining
order because she was "afraid of Ethan" based on his creation of
Internet accounts in her name, impersonation of her, sending her messages, and
attempts to find out her mobile telephone number and location.

            In
support of her application for a restraining order, MaKenna called Jeffrey
Tutton, a computer security specialist, to testify as an expert on cyberimpersonation. Tutton testified that every device
manufactured by Apple Inc. has a unique device identifier (UDID), and every
device connected to the Internet (whether manufactured by Apple Inc. or another
company) has an Internet protocol (IP) address to and from which href="http://www.sandiegohealthdirectory.com/">electronic information is
sent. According to Tutton, the UDID of another
person's telephone can be obtained by physically accessing the telephone, or by
running readily available UDID detection software on one's own telephone while
it is connected to the same wireless network to which the other person's telephone
is connected or while it is physically connected to a computer on the other
person's network. Tutton also explained
that the IP address of a device connected to the Internet can be obtained by physically
accessing the device; by obtaining the password for the network to which the
device is connected, accessing the network, and running an Internet connection
speed test on the network; or by sending an eâ€‘mail and getting a response
stating that the eâ€‘mail was opened and identifying the IP address of the
device on which it was opened. Finally,
Tutton testified that by obtaining the UDID and the IP address for another
person's telephone, entering the UDID into a program on one's own telephone,
and remotely accessing the other person's IP address, one can send from his own
telephone text messages that appear to have been sent from the other person's
telephone. According to Tutton, to be
able to do this does not require a great deal of sophistication: "[M]y grandma couldn't do it. But . . . my teenaged son probably
would be able to do that by watching a few videos on YouTube or something."

            At
the hearing, Ethan's testimony differed substantially from MaKenna's. In particular, Ethan contradicted MaKenna's
testimony about his access to her home Internet and her Internet accounts. Ethan denied he ever connected his device to
the wireless Internet at MaKenna's house, but admitted he logged on to her home
computer with her and accessed a Web site.
Ethan admitted changing some of MaKenna's Internet account passwords because
he was angry, but denied ever compromising her Google eâ€‘mail account.

Ethan's
testimony about his relationship and communications with MaKenna also differed
markedly from hers. Ethan testified he
broke up with MaKenna in mid-October 2011 and "didn't want to do anything
with her anymore." He admitted he
sent her the message in November 2011 calling her a "cheat" and a "lying
bitch" because he was angry that she was with Kyle, but he denied ever
threatening to flatten Kyle's tires. Ethan also denied sending other messages
MaKenna claimed she had received from him after the breakup. In fact, Ethan testified, he received several
unwanted messages from MaKenna, including the wedding photograph.

Finally, Ethan testified
he never had a Pinger account and never sent MaKenna any text messages through
Pinger. He testified he received through
Pinger text messages that contained a heart symbol (<3), which nobody but
MaKenna had ever sent him. Ethan denied cyberimpersonating
MaKenna. He testified that such
accusations "made [him] very jumpy," and he found it "nerve-racking
that someone [was] using his name and . . . texting other
people . . . . [I]t's
made [his] life a wreck. It's ruined
[his] . . . social life at school."

            At
the conclusion of the hearing, the trial court stated the case essentially presented
a credibility contest: "There is an
overwhelming amount of evidence clearly, in part, people are not telling the
truth. I don't think MaKenna told the truth
about everything. I think Ethan probably
told the truth less than she did." The
court found Ethan had access to MaKenna's UDID and IP address and did not need
ever to possess her telephone to gain that access. The court further found Ethan harassed MaKenna
by "totally undermining the computer system, phone system, changing
passwords, round and round and round with all of the trouble that would cause." Based on its view of the evidence, the court
found that Ethan engaged in "a conscious, . . . clear and
convincing campaign of disrupting [MaKenna's] life, messing up the whole
system. She ended up going to several
different schools." The court
therefore granted a three-year restraining order on the same terms as the
temporary restraining order.

II.

DISCUSSION

            Ethan
argues the restraining order must be reversed because it "is contrary to
substantial evidence in the record."
(Capitalization and boldface omitted.)
We disagree. The evidence, though
conflicting, was sufficient to support the order.

A.        Standard
of Review

            "The
appropriate test on appeal is whether the findings (express and implied) that
support the trial court's entry of the restraining order are justified by
substantial evidence in the record."
(R.D. v. P.M. (2011) 202
Cal.App.4th 181, 188.) Evidence is substantial
if it is reasonable, credible, and of solid value such that a reasonable person
might accept it as adequate to support a conclusion. (Braewood
Convalescent Hospital v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 159,
164; Schild v. Rubin (1991) 232
Cal.App.3d 755, 762 (Schild).) In reviewing a record for substantial
evidence, we resolve all factual conflicts and credibility questions in favor
of the prevailing party and draw all reasonable inferences in support of the
trial court's order. (>USS-Posco Industries v. Edwards (2003)
111 Cal.App.4th 436, 444; Schild, at
p. 762.) "If appellate
scrutiny reveals that substantial evidence supports the trial court's findings
and conclusions, the judgment must be affirmed." (Board
of Education v. Jack M. (1977) 19 Cal.3d 691, 697.)

B.        Legal
Analysis

            A
person who has suffered harassment may seek an injunction prohibiting further
harassment. (Code Civ. Proc.,
§ 527.6, subd. (a)(1).) As
pertinent to this appeal, " '[h]arassment' is . . .
a knowing and willful course of conduct directed at a specific person that
seriously alarms, annoys, or harasses the person, and that serves no legitimate
purpose. The course of conduct must be
such as would cause a reasonable person to suffer substantial emotional
distress, and must actually cause substantial emotional distress to the
petitioner." (>Id., § 527.6, subd. (b)(3).)
A " '[c]ourse of conduct' is a pattern of conduct composed of a series
of acts over a period of time, however short, evidencing a continuity of
purpose, including . . . making harassing telephone calls to an
individual, or sending harassing correspondence to an individual by any
means . . . ."
(Id.,> § 527.6, subd. (b)(1).) If after a hearing the trial court "finds
by clear and convincing evidence that unlawful harassment exists, an injunction
shall issue prohibiting the harassment."
(Id.,> § 527.6, subd. (i).)

            Here,
the evidence was sufficient to justify the challenged order. The trial court heard testimony directly from
Ethan that he disrupted MaKenna's Internet accounts by changing the passwords
and sent her text messages containing angry and obscene language after the
breakup of their relationship. The court
also heard testimony directly from MaKenna that over the course of several
months, Ethan sent her numerous unwanted electronic communications, some
professing love for her and others hatred. The court could infer from MaKenna's testimony
that Ethan had created Internet accounts in her name and posted private information
about the status of their relationship and MaKenna's emotional state. Tutton provided expert testimony from which
the court could infer that Ethan cyberimpersonated MaKenna by using the Pinger
account to send her threatening text messages and make it appear that she had
sent them herself. Such a "socially
unacceptable course of conduct would have seriously alarmed, annoyed, or
harassed a reasonable person, and would have caused a reasonable person to
suffer substantial emotional distress."
(Brekke v. Wills (2005) 125
Cal.App.4th 1400, 1414 (Brekke).) Indeed, MaKenna testified that Ethan's
barrage of unwanted communications disturbed her sleep and made her so upset and
fearful that she had to change schools. We
therefore conclude substantial evidence supports the trial court's issuance of
the restraining order. (Code Civ. Proc.,
§ 527.6, subds. (a)(1), (b)(3), (i); Brekke, at p. 1415.)

            Ethan
contends the restraining order must be reversed because the trial court's "essential
factual finding" that he sent the text messages that were delivered to
MaKenna through Pinger "is contrary to the expert testimony." According to Ethan, Tutton testified that "momentary
possession" of MaKenna's telephone was required to obtain the UDID, but it
was "uncontroverted that [Ethan] never had possession of the device." Ethan further contends reversal is required
because "all the evidence shows"
that MaKenna "was texting herself out of spite due to being rejected by
[Ethan]." (Italics added.) We disagree.

The evidence about
who sent the messages through Pinger presented a factual dispute for the trial
court to resolve. MaKenna and Ethan both
denied sending them, but the court expressly found MaKenna more credible than
Ethan. The records obtained from Pinger showed
the messages originated from a UDID and IP address belonging to MaKenna, but Tutton
testified that a person who had physically accessed MaKenna's telephone> or whose device was connected to her
wireless Internet network while her telephone was also connected could
obtain the UDID and IP address and later use that information to send a text
message from some other device and make it appear the message had been sent
from MaKenna's telephone. Although at
the hearing no evidence was presented that Ethan had physical access to MaKenna's
telephone, based on Tutton's testimony, Ethan could have obtained MaKenna's
UDID by remotely accessing her home wireless Internet network (for which she
testified Ethan had the password) at any time her telephone was connected. Thus, while some evidence supported Ethan's
theory that MaKenna sent herself the text messages through Pinger, other
evidence supported MaKenna's theory that Ethan sent them and made it look like she
did. "It is not our task to weigh
conflicts and disputes in the evidence; that is the province of the trier of
fact." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) We thus defer to the trial court's resolution
of these factual disputes and credibility questions in favor of MaKenna. (Cahill
v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 959; >Schild, supra, 232 Cal.App.3d at p. 762.)

In any event, as
the trial court recognized, who sent the messages through Pinger was "not
the only fact in the case." Even if
we disregard the evidence in favor of MaKenna on that issue, other evidence established
Ethan's harassment of MaKenna. For
example, there was evidence that Ethan (1) disrupted MaKenna's Internet
accounts by changing the passwords on multiple occasions; (2) set up false
Internet accounts in her name and posted private information about her;
(3) disturbed her sleep by sending her nine text messages within 25
minutes; and (4) sent her multiple messages that contained obscene or
threatening language and that caused her to switch schools to get away from him. Based on this evidence, the trial court was
justified in issuing the challenged restraining order. (See Code Civ. Proc., § 527.6,
subds. (a)(1), (b)(3), (i); Brekke,
supra, 125 Cal.App.4th at
pp. 1414-1415.)

DISPOSITION

            The restraining order is affirmed. Respondent is awarded costs on appeal.



IRION, J.

WE CONCUR:



                       HALLER,
Acting P. J.



                                McDONALD, J.

P. v. Calloway

Thu, 26 Dec 2013 04:35:31 GMT

P. v. Calloway

Filed 12/9/13
P. v. Calloway CA2/4

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>NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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

SECOND
APPELLATE DISTRICT

DIVISION
FOUR

>

THE PEOPLE,

            Plaintiff and Respondent,

            v.

RAYMOND CALLOWAY, et al.,

            Defendants and Appellants.

      B239805

      (Los Angeles
County

      Super. Ct.
No. BA372306)

            APPEALS
from judgments of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Barbara R. Johnson and Craig J. Mitchell, Judges. Modify and affirm.

            Murray A.
Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant
Raymond Calloway.

            Sally Patrone
Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant
Jason Bridges.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi,
Deputy Attorneys General, for Plaintiff and Respondent.

            These appeals arise from the href="http://www.mcmillanlaw.com/">armed robbery of a Trader Joeâ€™s
store. Appellant Raymond Calloway was
convicted of four counts in the first trial, but the jury was unable to reach a
verdict on the counts against his co-defendant, appellant Jason Bridges. Each was convicted as charged at the second
trial.

            Calloway
and Bridges challenge the sufficiency of the evidence supporting their convictions
of robbing two employees who remained secreted during the entire episode and
who were unknown to them. Bridges
challenges the evidence identifying him as one of the robbers and the juryâ€™s
finding that he assaulted three employees who were in a back room. Bridges argues the trial court erred by
informing the second jury that Calloway had been convicted of several counts in
the first trial.

            Calloway
argues the trial court abused its discretion in declining to strike his strike
prior conviction and that it erred in imposing sentence on count 1 from the
first trial in violation of Penal Code section 654.href="#_ftn1" name="_ftnref1" title="">^{^[1]} Bridges argues, and respondent concedes, that
his sentence on count 3 should have been stayed under section 654. Each appellant joins in the issues raised by
the other.

            Respondent
asks that we modify the abstract of judgment to reflect the correct amounts for
the mandatory criminal conviction assessment under Government Code section
70373 and the court security fee under section 1465.8.

            We find
sufficient evidence to support the robbery convictions as to the hidden
employees. There was substantial
evidence identifying Bridges as the lookout during the robbery and supporting
the convictions for assault of the three victims moved to a wine room at the
rear of the store. Since the jury in the
second trial was asked to determine Callowayâ€™s guilt on special gun use
allegations arising from the counts on which he was convicted in the first
trial, we find no abuse of the trial courtâ€™s discretion in informing the single
jury at the second trial of those convictions.

            The trial
court did not abuse its discretion in denying Callowayâ€™s motion to strike a
1987 attempted murder strike allegation.
Section 654 does not apply to his sentence under count 1 of the first
trial because Calloway acted with a separate objective in committing that
crime. We agree with Bridges and respondent
that section 654 does apply to the sentence on count 3 in the second trial and
direct the modification of the abstract of judgment. We conclude that the People did not forfeit
the claim that the abstract of judgment must be corrected to reflect the
correct criminal conviction assessment under Government Code section 70373 and
the court security fee under section 1465.8, and order that the abstract of
judgment be modified accordingly.

FACTUAL AND PROCEDURAL SUMMARY

            At 10:00 p.m. on May 30, 2010, a number of employees were still working at
a Trader Joeâ€™s store in Eagle Rock. By
that time, the store was closed to the public.
Three men entered through the back of the store. The man later identified as Calloway carried
a semiautomatic weapon and a bag. He was
accompanied by Bridges, who was unarmed.
A third man, not identified, also was armed with a semiautomatic gun.

            Calloway
pointed his gun at employee Angelica Arteaga and told her to be quiet. Employee Andrew Bates walked up. Calloway pointed the gun at Bates and
signaled that he and Arteaga should stand together. When Calloway pointed the gun at Batesâ€™s
forehead, Bates said â€œwhoaâ€ and Calloway told him to â€œâ€˜[s]hut the fuck up.â€™â€ Bates and Arteaga could see employee Douglas
Hilton in a nearby room. Calloway
directed Arteaga to call him over.
Arteaga did so and Hilton joined the group. Calloway directed the three employees to walk
outside the store. He followed with his
gun pointed at them. He signaled them to
walk to a room called the wine bank, where the third robber waited.

            Once they
were inside the wine bank, Calloway left and the third robber ordered the three
employees to remove the contents of their pockets. Arteaga did not have anything in her pockets,
the others did and removed the items. The
third robber ordered the employees to lay on the floor face down. They complied. The third robber stood at the doorway, and
threw their possessions on the floor, where they later were recovered.

            In the
meantime, employee Adam Kuehlthau was at the captainâ€™s desk, an office area in
the front of the store, with manager Ryan Gilger. There was a three-part safe in the captainâ€™s
desk area. Two doors were unlocked, but
the third was locked and could only be opened by an armored truck service that
came in the morning. Gilger was counting
money and preparing to put it in one of the safes. Calloway and Bridges walked up to the captainâ€™s
desk where Bridges took up a position as lookout, nervously looking around the
store.

            Gilger
asked if he could help the two men.
Calloway pulled out his weapon, pointed it at Gilgerâ€™s chest, and asked
for the money. Gilger, who had put his
hands up, turned and opened the unlocked door to the middle safe. Calloway held the gun with his right hand
while loading the money into a bag.
Bridges was yelling at Calloway to hurry up, or saying that the employees
were looking at him. Employee Ernie
Morales, who was working in the produce area near the front of the store, saw
Calloway and Bridges at the captainâ€™s desk.
Since Gilger and Kuehlthau had their hands up, Morales believed that a
robbery was occurring. Morales walked
toward them. Bridges looked at him,
yelled something, then ran out the back exit.

            Calloway
was occupied removing money from the safe.
Morales picked up a bottle of wine, walked quickly to the captainâ€™s
desk, and hit Calloway on the back of the head with the bottle. Calloway spun around and shot Morales. They wrestled over the gun. More shots were fired. Morales lost his grip on the gun and begged
Calloway not to shoot him. He shoved
Calloway away and ran down the aisle in an attempt to get away. Morales feared
for his life.

            After
Bridges left the captainâ€™s desk area, he appeared in the door of the wine bank and
excitedly told the third robber, â€œâ€˜Letâ€™s go.â€™â€ Both men ran out of the wine
bank. The three employees at that
location waited a brief time, then Hilton called 911. Arteaga was in fear for her life while in the
wine bank.

            Two Trader
Joeâ€™s employees on duty at the time of the robbery were able to hide from the
robbers. Jayson Gonzalez saw two African
American men walk into the store after it was closed. They walked toward the front, carrying bags. He saw Gilger and Kuehlthau hold their hands
up in the air and believed a robbery was occurring. Gonzalez hid behind an aisle, but could see
what was happening at the captainâ€™s desk.
He saw Morales pass by, then come back into view with a bottle of wine
in his hand, walking toward the entrance to the captainâ€™s desk. Gonzalez moved forward to a location from
which he could see the captainâ€™s desk because he was concerned that Morales
might do something. He saw Morales lift
the wine bottle over Callowayâ€™s head and smash it down. Gonzalez heard a crash when the bottle
struck. He immediately heard four or
five gunshots in repeated succession. Gonzalez
ducked down out of sight. Then he moved forward
again and heard sounds of wrestling at the captainâ€™s desk. He saw the robber and Morales rise up while
the robber was holding the gun in the air, as if fighting over it. Gonzalez saw Morales hold his hands up, and
say, â€œâ€˜Donâ€™t Shoot. Donâ€™t Shoot. I give up.â€™â€. After the robbers left, Morales went up to
Gonzalez and asked him to call an ambulance because he had been shot in the
leg.

            Employee
Nelson Zaldana first noticed the robbers when they were at the captainâ€™s desk. He too believed a robbery was occurring
because he saw Gilger and Kuehlthau with their hands up. Zaldana was near the entrance to the store
near the captainâ€™s desk. He walked to
the back of the store. He could not see
what was happening at the captainâ€™s desk from that vantage point. He heard about four gunshots in fast
succession, causing him to fear for his life. He did not see the gunshots. He and Gonzalez laid Morales down after the
shooting and put pressure on the wound where it was bleeding.

            Three .40
caliber bullet casings were collected from the captainâ€™s desk area and one live
.40 caliber bullet from the floor of the back room. A bullet had gone into a photocopier at the
captainâ€™s desk. The casings and bullet
were fired from a semiautomatic gun. There
also was a bullet hole in the ceiling through a light fixture near the
captainâ€™s desk.

            The third
robber was never identified or apprehended.
Calloway and Bridges were identified as involved in the robbery and arrested. They were charged with eight counts of second
degree robbery.href="#_ftn2" name="_ftnref2"
title="">^{^[2]} In addition, Calloway was charged with
assault with a semi-automatic weapon on victim Morales. The information alleged that Calloway and
Bridges each personally used a firearm in the commission of the offenses other
than assault, causing great bodily injury.
It also alleged that Calloway had suffered two prior strike convictions
within the meaning of sections 667, subdivisions (b)-(i) and 1170.12,
subdivisions (a)-(d). It was alleged
that Bridges had a prior strike conviction for first degree robbery in 2004.

            At the
first trial, the jury was unable to reach a verdict on any count against
Bridges. Calloway was found guilty of
the robberies of Morales, Gilger, and Kuehlthau and the assault on Morales
(counts 1, 2, 3, and 5). The jury found
true the allegations that Calloway had personally used a firearm as to those counts,
but was unable to reach a verdict on the remaining special allegations or on
the remaining charges against him. A
mistrial was declared as to the counts for which no verdict was rendered. The trial court struck one of Callowayâ€™s two
prior strike felony convictions in the interests of justice.

            At the
second trial, the charging pleading was the third amended information. Bridges was charged with eight counts of
second degree robbery (victims Morales, Gilger, Gonzalez, Kuehlthau, Zaldana,
Bates, Hilton, and Arteaga). Calloway
was charged with special allegations as to the convictions for robbing Morales,
Gilger, and Kuehlthau (counts 1, 3, and 5), as well as the second degree
robbery of victims Gonzalez, Zaldana, Bates, Hilton, and Arteaga. Calloway and Bridges were charged with
assault with a semi-automatic weapon on Bates, Hilton, and Arteaga. In addition, Bridges was charged with assault
on Bates, Hilton, Arteaga, Gilger, Morales and Kuehlthau. Both defendants were found guilty as charged
in the second trial. The jury found true
allegations that Calloway had personally used a firearm and firearm allegations
against Bridges.href="#_ftn3" name="_ftnref3"
title="">^{^[3]}

            Calloway
was sentenced to an aggregate term of 48 years in prison. Bridges was sentenced to an aggregate term of
31 years in prison. We reserve the
details of these sentences for our discussion of the sentencing issues raised
by appellants. Appellants filed timely
appeals.

DISCUSSION

I

            Bridges
challenges the sufficiency of evidence identifying him as the lookout during
the robbery, the person referred to during trial as suspect two. He cites the five alibi witnesses who
testified that he was home attending a Memorial Day weekend party at the time
the robbery occurred.href="#_ftn4"
name="_ftnref4" title="">^{^[4]}  He also
cites Callowayâ€™s testimony that the accomplice who acted at lookout at the
captainâ€™s desk was an individual known to him as â€œRed.â€ Bridges notes that the jury in the first trial
was unable to convict him on any charges, splitting eight not guilty to four
guilty.

            Bridges
also points to inconsistencies in the descriptions of suspect two provided by
the witnesses. Morales and Kuehlthau
identified Bridges as suspect two from six-pack photographs and at trial.

            â€œâ€˜In addressing
a challenge to the sufficiency of the evidence supporting a conviction, the
reviewing court must examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidenceâ€”evidence
that is reasonable, credible and of solid valueâ€”such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]â€™
(People v. Kraft (2000) 23
Cal.4th 978, 1053; see also, e.g., People
v. Prieto (2003) 30 Cal.4th 226, 245; People
v. Farnam (2002) 28 Cal.4th 107, 142â€“143.)â€
(People v. Mai (2013) 57
Cal.4th 986, 1038.)

            A reviewing
court may not set aside a juryâ€™s finding of guilt on the question of identity,
unless the evidence of identity is â€œâ€˜so weak as to constitute practically no
evidence at all.â€™ [Citations.]â€ (People
v. Mohamed (2011) 201 Cal.App.4th 515, 521.)

Where the circumstances of the eyewitness identification and
its weight are explored at trial, and credited by the jury, the juryâ€™s
determination is binding on the reviewing court. (Ibid,
citing In re Gustavo M. (1989) 214
Cal.App.3d 1485, 1497.) The fact that the
robberâ€™s face was partially obscured does not preclude a finding of sufficient
evidence to support the verdict. (>Id. at p. 522.) Discrepancies in the eyewitness descriptions,
and in the descriptions given of the robber do not require the jury to reject
their identifications: â€œâ€˜The strength or
weakness of the identification, the incompatibility of and discrepancies in the
testimony, if there were any, the uncertainty of recollection, and the
qualification of identity and lack of positiveness in testimony are matters
which go to the weight of the evidence and the credibility of the witnesses,
and are for the observation and consideration, and directed solely to the
attention of the jury in the first instance . . . .â€™ [Citation.]â€
(Ibid.)

            Kuehlthau
identified Calloway and Bridges as the men who came into the captainâ€™s desk
area when he was there with Gilger. He
described Bridges to the police as the lookout, and as tall, wearing a hooded
black sweatshirt. After his recollection
was refreshed with a police report, Kuehlthau testified that he told the police
that the robber he identified as Bridges was a tall black male, with broad
shoulders and wearing a black hooded sweatshirt. Kuehlthau thought Bridges was 6â€™ 4â€ or 6â€™ 3â€
(Kuehlthau was 6â€™ 3â€). On redirect, he
reaffirmed his identification of Calloway (as the man with a gun) and Bridges
(lookout). Bridges was 6â€™ 4â€ tall.

            Kuehlthau
did not identify any person in the first six pack he was shown because he did
not recognize anyone as involved in the robbery. From another six pack, he identified the
third photograph, which was of Bridges, on exhibit 6-B as the lookout. He wrote â€œlooks like the lookout who ran
off. Similar features, his nose and
mouth. He was the other guy who ran in
with the guy with the gun, into Trader Joeâ€™s who robbed us on May 30th, 2010.â€ Kuehlthau had a good look at Bridges at the
time of the robbery. He was certain
about the identification. The photo
looked â€œvery, very close to whom I saw.â€ He said suspect two (Bridges) was darker
skinned than Calloway. Kuehlthau told
police officers that he only saw parts of Bridgesâ€™ face because Bridges had a
sweatshirt hood pulled down.

            Morales
testified that he had a good look at Bridgesâ€™ face since the store was well
lit. He saw suspect twoâ€™s face for one
or two seconds, unobscured by a hoodie sweatshirt. He described suspect two as lighter skinned,
with a narrower face, skinnier, and a little taller than Morales, who is 5â€™
8â€. He believed that he had agreed with
a police officer that suspect two was about 5â€™ 10â€ tall. When he identified Bridges from a six-pack
photo array, Morales said the person looked like suspect twoâ€™s mouth area and
lips. He wrote that the hairline, skin
tone, and facial hair looked similar.

            Although Gilger
did not identify Bridges at trial as suspect two, he testified that he told
police officers that suspect two was 6â€™ 3â€ tall, a couple inches taller than
Gilgerâ€™s 6â€™ 1â€. This was consistent
with Kuehlthauâ€™s description of the height of suspect two.href="#_ftn5" name="_ftnref5" title="">^{^[5]}

            â€œInconsistencies
in [witnessesâ€™] initial descriptions of the perpetrator . . . are
matters affecting the witnessesâ€™ credibility, which is for the jury to
resolve.â€ (People v. Elliott (2012) 53 Cal.4th 535, 586.) In finding Bridges guilty, the jury at the
second trial plainly credited the identification testimony of Morales and
Kuehlthau and disbelieved the alibi witnesses. Sufficient evidence of identification supports
the verdicts as to Bridges.

II

            Bridges
argues that his convictions of assaulting the victims in the back room (Bates,
count 12; Hilton, count 13, and Arteaga, count 14) must be overturned because
they were too far from the bullets fired at the captainâ€™s desk. Alternatively, he argues that the assault
convictions are not supported by evidence that Calloway pointed a gun at these
victims when they were moved to the wine room. Calloway joins in all contentions raised by
Bridges. Respondent argues that the
evidence that a loaded weapon was pointed at the three victims who moved to the
wine room is sufficient to support these assault convictions.

            When Bates
encountered Calloway in the back area of the store, Calloway pulled out a gun
and stuck it in his face. Bates jumped
back and loudly said, â€œâ€˜Whoa.â€™â€.
Calloway said, â€œâ€˜Shut the fuck up.â€™â€ He kept the gun in Batesâ€™ face, and repeated
the admonition to shut up. Bates said,
â€œâ€˜You can have whatever you want.â€™â€ The
gun was pointed at Batesâ€™ forehead, a couple of inches away.

            Arteaga
testified that Calloway entered the store, pointed a gun at her, and signaled
her to be quiet. Calloway pointed the
gun at Arteaga, Bates, and Hilton as he directed them to walk outside the back
area of the store to the wine room. He
was within two to three feet of them, with the loaded gun pointed at them. Calloway testified that he knew that the gun
he used in the robbery was loaded.

            â€œâ€˜An
assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.â€™
(§ 240.) Assault requires the
willful commission of an act that by its nature will probably and directly
result in injury to another (i.e., a battery), and with knowledge of the facts
sufficient to establish that the act by its nature will probably and directly
result in such injury. (>People v. Williams (2001) 26 Cal.4th
779, 782 (Williams).)â€ (People
v. Miceli (2002) 104 Cal.App.4th 256, 268â€“269.) In Miceli,
the court found sufficient evidence that the defendant pointed a loaded semi-automatic
weapon based on a statement he made to a police officer, despite href="http://www.fearnotlaw.com/">equivocal testimony by others. If credited by the jury, the defendantâ€™s
statement was sufficient to prove the gun was loaded. The court concluded: â€œTo point a loaded gun in a threatening
manner at another . . . constitutes an assault, because one who
does so has the present ability to inflict a violent injury on the other and
the act by its nature will probably and directly result in such injury. [Citations.]â€
(Id. at p. 269.)

            There was
substantial evidence that Bridges aided and abetted Calloway in the commission
of his offenses, including the assaults on Bates, Hilton, and Arteaga. Calloway pointed a loaded weapon at these
three in a threatening manner. Bridges
argues in his reply brief that the convictions should be reversed because the
third unidentified robber told the victims in the wine room, â€œâ€˜Donâ€™t
worry. Nothing bad is going to happen to
you.â€™â€ This assurance by the third
robber does not negate Callowayâ€™s use of his weapon in a threatening manner
against these victims. The convictions for
assaulting Bates, Hilton, and Arteaga are supported by substantial evidence.

III

            Both
Calloway and Bridges challenge the evidence supporting their convictions at the
second trial of robbing Gonzalez and Zaldana, the employees who remained hidden
during the robbery.

            â€œâ€˜Robbery
is â€œthe felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by
means of force or fear.â€ (§ 211, >People v. Scott (2009) 45 Cal.4th 743,
749 [(Scott)].)â€ (People
v. McKinnon (2011) 52 Cal.4th 610, 686-687 [regardless of their specific
responsibilities, on-duty employees have constructive possession of their
employerâ€™s property for purposes of a robbery.].) â€œRobbery of a particular person has not
occurred unless property was taken from the personâ€™s immediate presence and the
defendant used force or fear to take the property or to prevent the person from
resisting.â€ (Scott, at p. 749.)

            California
recognizes that employees in constructive possession of store property may each
be a separate victim of a robbery of the business. In Scott,
during the robbery of a McDonaldâ€™s restaurant, two employees hid from the
robbers. Each saw the robbers with
weapons and immediately hid for the duration of the crime. At trial and on appeal, a defendant argued
that the hidden employees were not victims of the robbery because they lacked
constructive possession of the money which was stolen. Resolving a split of authority in the Courts
of Appeal, the Supreme Court held that â€œâ€˜employees working at a business
premises were in constructive possession of the employerâ€™s property during a
robbery, based upon their status as employees and without examining whether
their particular duties involved access to or control over the property
stolen.â€™â€ (Scott, supra, 45 Cal.4th
at p. 752, quoting People v. Jones (2000)
82 Cal.App.4th 485, 490.) It concluded
that â€œâ€˜if force or fear is applied to
two victims in joint possession of property, two convictions of robbery are
proper.â€™â€ (Id. at p. 757.) The
convictions for robbing the hidden victims were affirmed. (Id.
at p. 758.)

            Calloway
argues there is insufficient evidence that he robbed Gonzalez and Zaldana because
they were in different parts of the store when the robbery occurred, did not interact
with him or the other robbers, and the robbers were unaware of their presence. â€œâ€˜The generally accepted definition of
immediate presence . . . is that â€œâ€˜[a] thing is in the [immediate]
presence of a person, in respect to robbery, which is so within his reach,
inspection, observation or control, that he could, if not overcome by violence >or prevented by fear, retain his
possession of it.â€™â€â€™ (>People v. Hayes (1990) 52 Cal.3d 577,
626â€“627.)â€ (People v. Abilez (2007) 41 Cal.4th 472, 507, italics added.) As we have discussed, all employees in the
store had constructive possession of the stolen money under the principles
announced in Scott, >supra, 45 Cal.4th at page 753. Zaldana and Gonzalez were prevented by fear
from retaining possession of the money in the store safe. That is sufficient to satisfy the element of
immediate presence to support the convictions of robbing them. (See People
v. Douglas (1995) 36 Cal.App.4th 1681, 1690-1691 [sufficient evidence of
attempted robbery of patron hiding 30 feet from robbery of bartender since
patron saw robber had gun, and was prevented by fear from reclaiming money he
had left on bar.]

            The cases
Calloway cites do not support his argument.
First, he cites the discussion in Scott,
supra, 45 Cal.4th at pages 750â€“751 of
the general principles of constructive possession for purposes of robbery. As we have discussed, in Scott, the Supreme Court upheld convictions for robbing two victims
who saw the armed intruders, but hid during the robbery and did not interact
with the robbers. (Id., supra, 45 Cal.4th at
p. 758.) Calloway does not explain how
this discussion supports his contention that the robbers had to have knowledge
of the victimsâ€™ presence in order to have robbed them.

            Calloway
also cites People v. Bonner (2000) 80
Cal.App.4th 759, in which the defendant argued there was insufficient evidence
to support his conviction of two counts of attempted robbery because he was not
in close proximity to either intended victim and did not demand money from
either of them. The Court of Appeal
rejected the argument and affirmed the convictions. (Id.
at pp. 765-766.) It concluded the
convictions were supported by evidence of the defendantâ€™s intent to rob the two
victims and of acts beyond mere preparation, including going to the scene with
a weapon, placing a mask over his face, and waiting in hiding. He abandoned the plan and fled only after he
was discovered by other hotel employees before he could confront the intended
victims. (Id. at p. 764, fn. 3.) We do
not see how this case supports Callowayâ€™s argument.

            >Sykes v. Superior Court (1994) 30
Cal.App.4th 479, on which Calloway relies, also is distinguishable. The issue in that case was whether the
defendant took a saxophone from the person or immediate presence of a security
guard who was not employed by the business which was robbed, but was instead
employed by a nearby business. The case
is inapposite since here we are concerned with employee victims who come within
the principles of constructive possession announced in Scott, supra, 45 Cal.4th
at page 743.

            Bridgesâ€™
challenge to the robbery counts involving Zaldana and Gonzalez is similar. He argues that since the robbers did not see
these two victims, they never used force against them and thus he cannot be
convicted of robbing them. But like the
hidden victims in Scott, >supra, 45 Cal.4th 743, Gonzalez and Zaldana
both testified that they saw Gilger and Kuehlthau standing at the captainâ€™s
desk with their hands in the air in the presence of two strangers. They each believed a robbery was occuring and
hid. Zaldana testified that he chose the
first spot he hid â€œmainly for safetyâ€ because he feared a robbery was
occurring. Once he heard the gunfire, he
feared for his life. When Gonzalez saw
Gilger and Kuehlthau with their hands in the air, he hid because he did not
know what was going to happen. He hid so
the robbers would not see him. He witnessed
Morales and Calloway fighting over the gun from a distance of about 20 feet. When the gunshots were fired, he ducked
farther down out of sight of the captainâ€™s desk.

            There is
sufficient evidence that Calloway and Bridges prevented Gonzalez and Zaldana
from resisting the robbery by force or fear.
(People v. Abilez, >supra¸ 41 Cal.4th at p. 507.) The convictions of robbing Gonzalez and
Zaldana are supported by sufficient evidence.

IV

            Bridges
argues the trial court erred by informing the jury prior to voir dire that
Calloway had been convicted of four counts in the first trial. He contends the error was prejudicial because
â€œthe jury would necessarily think the conviction of a codefendant necessarily
implied appellant Bridges was also guilty.â€ Respondent contends that the issue was forfeited
because Bridges raised no objection below. Bridges argues the issue affected his
substantial rights and therefore may be raised for the first time on appeal. We need not resolve this dispute because we
find no error.

            After the
first trial ended in a mistrial as to Calloway on some of the special gun use
allegations on the robbery counts for which he had been convicted, the
prosecution chose to recharge those special allegations in the third amended
information. As a result, at the second
trial, as to Calloway, the jury was required to consider only special
allegations as to count 1 (robbery of Morales), count 3 (robbery of Gilger),
and count 5 (robbery of Kuehlthau). The
prosecution proceeded against Bridges at the second trial on the theories that he
was a principal or that he aided and abetted Calloway and the unidentified
third robber.

            At the
beginning of jury selection in the second trial, the court listed the charges
against the two defendants, including the special allegations. The court then briefly summarized the case: â€œLadies and Gentlemen, this involves several
felony counts as I have listed them. All
the crimes are alleged to have occurred during a single incident, a take-over
robbery of a Trader Joeâ€™s in the city of Eagle Rock. [¶] Mr.
Calloway has been found guilty of assault with a firearm and three counts of
robbery with personal use of a firearm arising out of this case in a prior
proceeding. It will be up to you to
resolve, if you can, the remaining charges and allegations against Mr. Calloway
as well as the charges and allegations against Mr. Bridges.â€ Neither defendant objected to this summary, or
to the revelation that Calloway was convicted of some charges in the first
trial.

            Throughout
the second trial, the court and counsel addressed the impact of Callowayâ€™s
convictions in the first trial. The
first question put to Calloway on direct examination by his counsel was whether
he previously had been convicted of the robberies of Gilger, Kuehlthau, and
Morales. Calloway answered that he had,
in addition to a charge of assault with a semi-automatic firearm on Morales. Counsel for Bridges did not request an
instruction that would have limited the use of Callowayâ€™s convictions at the
first trial. In the colloquy over jury
instructions, the court and counsel discussed how the verdict forms should be
worded since the jury was being asked to decide only the truth of the special
allegations as to three counts (1, 3, and 5) on which Calloway was convicted in
the first trial. The court noted that
the jury was informed of the convictions in the first trial before voir dire
began and that the verdict forms would clearly state that the jury was to
determine only the truth of the special allegations as to those counts. In addition, counsel for Calloway said he
intended to make this clear in his argument.
The court suggested the parties agree on the language for the verdict
forms.

            In >People v. Sorrels (2012) 208 Cal.App.4th
1155 [Sorrels], the Court of Appeal
acknowledged: â€œThe trial courtâ€™s reading
of a brief overview of the facts before conducting voir dire is commonplace in
modern-day trial courts. In fact, judges
are encouraged to give such statements to the juries for a number of reasons. First, it serves as a means of giving the
jurors an introduction to the case. . . .â€ (Id.
at p. 1164.) The Sorrels court noted â€œ[i]ndeed, the California Standards for
Judicial Administration, Standard 4.30, subdivision (b)(8), direct a criminal
trial judge during voir dire to inform the jury of the charges against a
defendant, and the section of the Penal Code alleged to have been
violated. Most importantly, the standard
directs the trial judge to â€˜describe the offense[s].â€™ Further, the trial judge is to inform the
jury that â€˜the defendant has pleaded not guilty, and the jury will have to
decide whether the defendantâ€™s guilt has been proved beyond a reasonable
doubt.â€™ (Ibid.)â€ (>Ibid.)
In that case, the trial court gave a lengthy factual summary of the
crimes. On appeal, the court found no
error. It cited People v. Rodriguez (1986) 42 Cal.3d 730, 766: â€œThe trial court has sound discretion to
summarize the evidence with no limitations on its content or timing so long as
it is â€˜accurate, temperate, nonargumentative, and scrupulously fair.â€™ [Citation.]â€
(Sorrels, supra, 208 Cal.App.4th at p. 1165.)

            Bridges
relies on the general principle that evidence that a codefendant has been
convicted of the same crime is extremely prejudicial, citing >People v. Cummings (1993) 4 Cal.4th
1233, 1322 [Cummings], >People v. Leonard (1983) 34 Cal.3d 183,
188â€“190, and People v. Andrews (1983)
149 Cal.App.3d 358, 364â€“366). The cases
are inapposite. In Cummings, evidence of defendantâ€™s guilty pleas to a series of
robberies was admitted at the trial on separate charges, including murder, against
Cummings and his codefendant, Kenneth Gay.
The trial court reasoned that the evidence was admissible because it
corroborated a witnessesâ€™ testimony regarding the remaining charges. The Supreme Court rejected that theory,
finding that the attenuated probative value of the prior pleas was outweighed
by the prejudicial impact. (4 Cal.4th at
p. 1322.) The Cummings court also rejected the alternative theory that the plea evidence
was admissible because the other witnessâ€™ credibility was at issue, finding it
more prejudicial than probative. (>Ibid.)
In Cummings, separate juries
were convened to determine the guilt of the two codefendants. (Id.
at p. 1255.) The Supreme Courtâ€™s ruling
was that the fact Cummings was found guilty based on his plea was not
admissible as to Gay. But here, a single
jury was convened, which had to determine Callowayâ€™s guilt on the special
allegations on the charges for which he was previously convicted, additional
charges against Calloway, and all charges against Bridges. There is no indication in the record that
Bridges sought to sever his trial from Callowayâ€™s, or that he sought a separate
jury.

            >People v. Leonard, supra, 34 Cal.3d 183, cited by Bridges, also is
distinguishable. In that case, Leonard
and another person, Johnson, were charged with robbing two victims in a single
incident. Johnson pled guilty. At trial, the only charges were against
Leonard, but the jury was told of Johnsonâ€™s guilty plea. The Court of Appeal held that the questionable
probative value of the plea was far outweighed by the prejudicial impact. (Id.
at pp. 188â€“189.) Unlike the jury in our
case, the jury in Leonard, was not
asked to determine the truth of any special allegations against Johnson. The third case cited by Bridges, >People v. Andrews, supra, 149 Cal.App.3d 358 is inapposite for similar reasons. In that case, the jury was mistakenly given a
newspaper article reporting a codefendantâ€™s guilty plea to charges arising from
one of the incidents in which Andrews was charged. That jury did not have before it any issue
regarding the guilt of the codefendant, unlike the jury here.

            We find no
abuse of the trial courtâ€™s discretion in advising the jury of Callowayâ€™s
convictions in the first trial. That
information was necessary in order for the jury to determine the special
allegations against Calloway based on those convictions. In addition, the information was relevant in
the second trial because Bridgesâ€™ guilt of the robberies of Gilger, Kuehlthau,
and Morales was prosecuted on an aiding and abetting theory.

V

            The remaining
contentions on appeal concern claims of sentencing error. Calloway argues the trial court erred in
denying his motion to dismiss a prior 1987 strike conviction allegation, based
on an attempted murder. He also contends
the trial court should have stayed the sentence on count 1 from the first
trial, the robbery of Morales, under section 654. Bridges argues, and respondent concedes, that
Bridgesâ€™ sentence for robbing Gilger should have been stayed under section 654.

A. Three Strikes

            The trial
court has the discretion under section 1385, subdivision (a) to strike prior
conviction allegations brought under the Three Strikes law. (People
v. Leavel (2012) 203 Cal.App.4th 823, 836 (Leavel), citing People v.
Superior Court (Romero) (1996) 13 Cal.4th
497, 529-530 (Romero).) We review the trial courtâ€™s ruling on such a
motion for abuse of discretion. (>Id. at p. 837) â€œThe burden is on the party challenging the
sentence to clearly show the sentence was irrational or arbitrary. [Citation.]â€
(Ibid.) An abuse of discretion is demonstrated only
in limited circumstances, for example, when the trial court was unaware of its
discretion to dismiss or where it considered impermissible factors in declining
to dismiss. (Ibid; People v. Carmony (2004)
33 Cal.4th 367, 378.) We will not reverse a sentence â€œmerely
because reasonable people might disagree.
â€˜â€œâ€˜An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.â€™â€â€™â€ (Ibid,
quoting People v. Superior Court (>Alvarez) (1997) 14 Cal.4th 968,
978.)

            The factors
the trial court may consider in ruling on a motion to strike a prior strike
conviction allegation are well established:
â€œâ€˜[T]he court in question must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the schemeâ€™s spirit, in whole or
in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.â€™ (People
v. Williams (1998) 17 Cal.4th 148, 161.)â€
(Leavel, supra, 203 Cal.App.4th at pp. 836-837.)

            Calloway
had a sustained juvenile petition for robbery in 1981; a conviction for
attempted murder in 1987 for which he was sentenced to seven years in state
prison; a 1992 federal conviction for conspiracy to distribute cocaine for
which he was sentenced to 25 years in federal prison, and in 2001 he had a
conviction for felony sale of narcotics and was sentenced to three years in
state prison.href="#_ftn6" name="_ftnref6"
title="">^{^[6]}  The 1987
attempted murder strike allegation was found true by the trial court after the
verdicts were returned in the first trial.

            Before the
start of the second trial, Callowayâ€™s counsel filed a motionhref="#_ftn7" name="_ftnref7" title="">^{^[7]} to strike the allegation of the 1987 attempted
murder strike. He argued that Calloway
was only 20 years old in 1987, and that his only convictions in the interim
were narcotics related. He contended
that Calloway chose not to kill or severely injure the victims in the present
case, although he had the opportunity to do so.
Counsel also referenced a letter written on behalf of Calloway by a jail
chaplain, who said he had only written one other such letter in 23 years in
that position. Counsel cited Callowayâ€™s
cooperation in his defense and recognition that he deserved to be punished for
his actions. He contended that
Callowayâ€™s actions were influenced by narcotics. He urged the court to sentence Calloway to a
term of 10 years in state prison, arguing that he did not deserve the
equivalent of a life sentence.

            The
prosecutor argued that Calloway did not come within the spirit of >Romero, supra, 13 Cal.4th 497 since â€œ[h]is prior conviction was involving
shooting someone in which Mr. Calloway forced someone to grab a gun and forced
him to shoot at someone involving drug transactions. And in turn Mr. Calloway shot at that
individual.â€ He also emphasized the
danger presented when Calloway entered the Trader Joeâ€™s with a loaded gun when
at least nine employees were present. He
argued that danger was demonstrated when Morales was shot in a struggle with
Calloway. The prosecutor argued that
society would not be safe if Calloway was given a lesser sentence. He contended that Calloway had failed to gain
wisdom and judgment from his experiences and asked for the maximum sentence.

            The trial
court noted that it had continued the sentencing hearing for two days in order
to carefully review the file so the decision on striking the prior would not be
rushed. The court denied the
motion. It indicated that since Calloway
had engaged in conduct which could easily have resulted in the death of another
person, an absolutely clean post-conviction record and extraordinary
circumstances would have to be demonstrated to warrant granting the motion. The court emphasized Callowayâ€™s history of
convictions and repeated returns to criminal conduct after release. The court concluded that the prior prison
terms did not convince Calloway to lead a law-abiding life, and stated that it
would not show leniency on this record. The
court sentenced Calloway to aggregate sentence of 29 years four months on the
convictions in the first trial, much less than the sentence requested by the
prosecutor.

            Calloway
characterizes the trial court as having a â€œpre-disposition to not strik[e] his
single stale â€˜strikeâ€™ prior felony conviction.â€ He argues the court never genuinely considered
granting the motion. He minimizes his
criminal conduct between the 1987 attempted murder and the Trader Joeâ€™s
robbery. He contends that he refrained
from committing violence in the current case, failing to acknowledge that
Morales suffered a serious gunshot wound to his leg.

            We find no
abuse of the trial courtâ€™s discretion in declining to strike the 1987 attempted
murder strike allegation. Callowayâ€™s
criminal history and the violence of the present crime establish him to be a
recidivist well within the spirit of the Three Strikes law. He did not refrain from committing crimes
despite repeated incarcerations. The
trial court recognized its discretion and took into account the relevant
factors in the exercise of that discretion.
(People v. Philpot (2004) 122
Cal.App.4th 893, 907.) Calloway did not
rebut the strong presumption that a court acts within its discretion in
imposing a sentence under the Three Strikes law. (In re
Large (2007) 41 Cal.4th 538, 550-551.)

B. Section 654

1. Calloway

            Calloway
argues the trial court erred in imposing sentence on both counts 1 and 2 based
on the convictions in the first trial. He
contends that sentence on count 1 should have been stayed. Both counts involved victim Morales. Count 1 is second degree robbery (§ 211) and
count 2 is assault with a semi-automatic weapon (§ 245, subd. (b)). Count 2 was made the base term, for which
Calloway was sentenced to the high term of 9 years, doubled to eighteen years
in light of the prior strike finding, plus 10 years for the gun use under
section 12022.5, subdivision (a), for a total sentence of 28 years on this
count. On count 1, the court imposed a
sentence of three years, doubled to six years, plus one-third of the sentence
(3 years and 4 months) based on the personal use of a firearm (§ 12022.53,
subd. (b)), for a total sentence of nine years and four months, to run
concurrent to count 2. Calloway contends
that these violations arose from an indivisible transaction for which he may
receive only one punishment under section 654.

            â€œSection
654, subdivision (a), provides in pertinent part: â€˜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.â€™ It has long been held that section 654 bars
multiple punishments for separate offenses arising out of a single occurrence
where all of the offenses were incident to one objective. [Citations.]â€
(People v. Calderon (2013) 214
Cal.App.4th 656, 661.)

            In >People v. Wynn (2010) 184 Cal.App.4th
1210, 1214, a loss prevention officer at a store observed the defendant
shoplifting. She followed him from the
store and confronted him in the parking lot, identifying herself. The defendant took a nunchaku from his pants
and started swinging it. Several
employees eventually subdued him, although one suffered a head injury in the
melee. The defendant was convicted of a
number of crimes, including burglary and three counts of assault with a deadly
weapon. (Id. at pp. 1213â€“1214.) On
appeal, he argued that his sentence for burglary, among others, should have
been stayed. The Court of Appeal applied
the established test to determine whether the offenses were indivisible for
purposes of section 654, which turns on the â€˜â€œdefendantâ€™s intent and objective,
not the temporal proximity of his offenses.â€â€™
(Id. at pp. 1214â€“1215,
quoting People v. Harrison (1989) 48
Cal.3d 321, 335.) â€œWhere the commission
of one offense is merely â€˜â€œa means toward the objective of the commission of
the other,â€â€™ section 654 prohibits separate punishments for the two
offenses. [Citation.]â€ (Id.
at p. 1215.)

            On appeal,
we apply the substantial evidence standard of review to a determination of
whether the defendant acted with more than one objective. (People
v. Wynn, supra, 184 Cal.App.4th
at p. 1215.) At sentencing after the
first trial, the trial court said it did not believe that section 654 applied
to the assault with a deadly weapon count. â€œWhen a trial court sentences a defendant to
separate terms without making an express finding the defendant entertained
separate objectives, the trial court is deemed to have made an implied finding
each offense had a separate objective. (>People v. Osband (1996) 13 Cal.4th 622,
730â€“731.)â€ (People v. Islas (2012) 210 Cal.App.4th 116, 129.)

            Calloway
argues that the robbery and assault on Morales were committed with the single
objective of robbing the Trader Joeâ€™s store.
He contends that nothing in the record supports the implied finding that
he harbored multiple and independent objectives.

            We
disagree. The Court of Appeal in >People v. Wynn, supra, 184 Cal.App.4th 1210, found
substantial evidence that the defendantâ€™s objective during the burglary was to
obtain cigarettes, but that his objective during the assault was to avoid being
arrested for theft. (>Id. at p. 1216.) Our case is similar. There is substantial evidence that Calloway
harbored the intent to rob the Trader Joeâ€™s store; he admitted as much in his
testimony. But the assault charge arises
from his physical altercation with Morales, during which Morales was shot. Like the security guard in >Wynn, Morales was attempting to
apprehend Calloway. There is substantial
evidence that Calloway committed the assault as he sought to avoid capture and
arrest.

            Respondent
relies on another similar case, People v.
Watts (1999) 76 Cal.App.4th 1250, which arose from the armed robbery and
assault of restaurant employees late at night.
The trial court concluded that the robberies were separate from the
assaults and imposed separate punishments for each. (Id.
at p. 1264.) On appeal, Watts
argued that the robberies and assaults were part of a single course of conduct
committed with the intent to commit robbery.
(Id. at pp. 1264â€“1265.) The appellate court found substantial
evidence that each victim was assaulted either as she was attempting to comply
with her assailantâ€™s demands for money, or was attempting to escape. It concluded that the robberies â€œwere well
under way at the time the assaults occurred,â€ and that this evidence supported
the conclusion that the assaults were not simply a means of committing the
robberies. Substantial evidence
supported the trial courtâ€™s conclusion that the assault of each victim was a
separate act with a separate objective, allowing the court to impose separate
sentences for each crime. (>Id. at p. 1265.) Similarly, Calloway shot Morales after the
robbery was well underway, after Morales attempted to apprehend him or to
prevent the robbery.

            We find
substantial evidence to support the trial courtâ€™s implied finding that Calloway
entertained independent objectives in robbing and assaulting Morales. We find no error in the imposition of
punishment for each count.

2. Bridges

            The trial
court found that section 654 applied to Bridgesâ€™ convictions for assault as to
victims Bates (count 12), Hilton (count 13), Arteaga (count 14), Morales (count
15, and Kuehlthau (count 16), finding Bridges acted with the single objective
of committing robbery. But the trial
court did not apply the same reasoning to the assault and robbery involving
victim Gilger (counts 3 and 11). The
trial court selected count 11 (assault on Gilger) as the principal term,
imposing a total term of 17 years.href="#_ftn8"
name="_ftnref8" title="">^{^[8]} On count 3, the robbery of Gilger, the court
imposed one-third the midterm of three years, doubled, for a total of two years
four months.

            Respondent
concedes that the trial court should have stayed the sentence on count 3
pursuant to section 654 because of its finding that Bridges engaged in an
indivisible course of conduct with the objective of robbing the Trader Joeâ€™s
store. It observes that there is no
reason to treat Gilger differently from the other victims in the counts for
assault which were stayed. It contends
the sentence on count 3, the shorter of the two convictions as to Gilger,
should be stayed, and Bridgesâ€™ sentence reduced by two years, four months.

            We agree
with the parties that section 654 applies to prohibit punishing Bridges for
both the assault and robbery of Gilger.
We shall stay the sentence on count 3 and direct the entry of a new
judgment reducing Bridgesâ€™ sentence by two years, four months.

VI

            Respondent
also asks that we modify the Calloway abstract of judgment to reflect the
imposition of a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40
court security fee (§ 1465.8, subd. (a)(1)) for each of the 12 counts for which
he was convicted, for totals of $360 and $480 respectively, and that we modify
the Bridges abstract of judgment to reflect the imposition of a $30 criminal
conviction assessment (Gov. Code, § 70373) and a $40 court security fee (§
1465.8, subd. (a)(1)) for each of the 14 counts for which he was convicted, for
totals of $420 and $560 respectively.

            Bridges,
joined by Calloway, argues the issue was forfeited or waived by the
prosecutionâ€™s failure to raise it before the trial court. He cites People
v. Tillman (2000) 22 Cal.4th 300, 302-303 (Tillman), which held that the People could not request imposition
of restitution and parole revocation fines on appeal because no objection had
been raised in the trial court.

            In >People v. Smith (2001) 24 Cal.4th 849,
the Supreme Court clarified the Tillman holding
and concluded that a mandatory fee may be corrected on appeal even if the error
was not raised in the trial court. (Id.
at p. 853.)

            Both the
criminal conviction assessment and the court security fee are required (>People v. Knightbent (2010) 186 Cal.App.4th
1105, 1112 [Gov. Code, § 70373]; People
v. Schoeb (2005) 132 Cal.App.4th 861, 865 [§ 1465.8, subd. (a)(1)]), and
therefore may be modified on appeal despite the failure of the People to object
at trial.

At sentencing, the trial court stated that each defendant
was to pay a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40
court operations assessment fee (§ 1465.8). The Bridges abstract of judgment correctly
reflects his 14 felony convictions. But
the criminal conviction assessment imposed under Government Code section 70373
was $360 rather than the correct figure of $420 (14 times $30). The fee imposed under section 1465.8 was $40
total, rather than the correct figure of $560 (14 times $40). Callowayâ€™s abstract of judgment reflects his
12 felony convictions. The criminal
conviction assessment is $360, which is correct. The court security fee imposed under section
1465.8 is $200 rather than the correct figure of $480 (12 times $40). We modify the judgments of conviction pursuant
to People v. Smith, >supra, 24 Cal.4th at page 853 to reflect
the correct amounts.

DISPOSITION

            The
judgment of conviction as to Calloway is modified to provide for a court security
fee of $480 under section 1465.8. The
trial court is directed to amend the Calloway abstract of judgment to reflect
this change. As modified, the judgment
of conviction as to Calloway is affirmed in all other respects. The sentence imposed on Bridges for count 3
(robbery of Gilger) is stayed and his total sentence reduced accordingly. The Bridges abstract of judgment must be
modified to reflect that the sentence on count 3 is stayed and the aggregate
sentence reduced, and that a criminal conviction assessment of $420 (Gov. Code,
§ 70373), and a court security fee of $560

(§ 1465.8) are imposed. The trial court is directed to amend the
Bridges abstract of judgment to conform to these changes. In all other respects, the judgment of
conviction as to Bridges is affirmed.
The clerk is directed to forward copies of the correct abstracts of
judgment to the Department of Corrections and Rehabilitation.

            >NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                                                                    EPSTEIN,
P. J.

We concur:

            WILLHITE,
J.

            SUZUKAWA,
J.

id=ftn1>

href="#_ftnref1"
name="_ftn1" title=""> ^{^[1]} Statutory references are to
the Penal Code unless otherwise indicated.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">            ^{^[2]} The victims in these counts
were employees Morales, Gilger, Gonzalez, Kuehlthau, Zaldana, Bates, Hilton,
Arteaga. During the first trial, the
court granted a defense motion to dismiss count 10, the second degree charge of
robbery of another person.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">            ^{^[3]} On counts 1, 3, 5, 12, 13
and 14 the jury found true allegations under section 12022.5, subd. (a) as to
Calloway. It found true allegations
under both 12022.53, subdivision (b) and 12022.5, subdivision (a) as to Calloway on counts 4, 6, 7, 8, and
9. On counts 1-9 the jury found not true
allegations as to Calloway under section 12022.53, subdivisions (c) and
(d). The jury found true allegations
under section 12022, subdivision (a)(1) as to Bridges on counts 1 through
9. It found not true an allegation under
section 12022.5, subdivision (a) as to Bridges on count 14.

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">            ^{^[4]} Craig Coleman, Marcia
Leatherwood, Elizabeth Franklin, Nin Nanette Grosse, and Katherine Coleman each
testified that they saw Bridges return to the party about the time of the
robbery at Trader Joeâ€™s.

id=ftn5>

href="#_ftnref5"
name="_ftn5" title="">            ^{^[5]} Arteaga was not able to
identify Bridges prior to the second trial, where she testified that he looked
like the second robber who came to the back room and told the third robber
â€œâ€˜Letâ€™s go.â€™â€ Under cross-examination,
she testified that she was unsure of her identification, but that Bridges
looked like suspect two because he had the same height and complexion.

id=ftn6>

href="#_ftnref6"
name="_ftn6" title="">            ^{^[6]} The court previously struck
a second strike allegation of a 1987 conviction for conspiracy to commit murder
(§§ 182/187).

id=ftn7>

href="#_ftnref7"
name="_ftn7" title="">            ^{^[7]} This motion is not in the
record on appeal.

id=ftn8>

href="#_ftnref8"
name="_ftn8" title="">            ^{^[8]} The court selected the
midterm of six years because Bridges did not personally use a gun, doubled
pursuant to the prior strike conviction, plus a consecutive five year
enhancement under section 677, subdivision (a).