Opinion
B157442
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. RODOLPHO CHICO ANDERSON, Defendant and Appellant.
Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Rodolfo Chico Anderson, who represented himself at trial, appeals from his convictions for: four counts of assault by assault weapon (Pen. Code, § 245, subd. (a)(3)); two counts of second degree robbery ( § 211); one count of attempted second degree robbery ( §§ 211, 664); a count of carjacking ( § 215, subd. (a)); and a single count of attempted carjacking. ( §§ 215, subd. (a), 664.) The jury also found that in the commission of the aggravated assaults, defendant personally used a firearm. ( § 12022.5, subd. (a)(1).) The jury also found that in the commission of the completed and attempted second degree robberies and the carjacking defendant personally used a firearm. ( §§ 12022.5, subd. (a)(1), 12022.53, subd. (b).) The trial court found that defendant had previously been convicted of two serious felonies. ( §§ 667, subds. (a)(1), (b)-(d), 1170.12.) Defendant argues: there was insufficient evidence to sustain his convictions; his sentence amounts to cruel and unusual punishment; and the sentencing scheme set forth in sections 667, subdivisions (b) through (d), and 1170.12 is unconstitutional on its face and as applied. Defendant further argues the trial court improperly instructed the jury with CALJIC No. 17.41.1 and denied his motion to disclose identifying information regarding the jurors. The parties agree that the trial court improperly imposed a section 12022.53, subdivision (b) enhancement as to count 18 and that the abstract of judgment must be corrected to reflect the specific indeterminate terms imposed as to counts 2, 3, 4, 11, 12, 13, 17 and 18. The Attorney General argues the trial court must impose a specific term as to count 16 before staying the sentence pursuant to section 654, subdivision (a).
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Osband (1996) 13 Cal.4th 622, 690, 919 P.2d 640; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.)
A. Sittons Restaurant (Counts 2, 3, and 4)
At approximately 3:25 a.m. on February 7, 2000, defendant entered the back door of Sittons Restaurant in North Hollywood holding a black gun. Defendant pointed the gun at Freddy Betancourt, who was working alone in the kitchen. Defendant wore a dark knitted cap and dark clothing. Defendant ordered Mr. Betancourt not to move. Defendant walked into the front of the restaurant, where he confronted Jean McDonald, a restaurant employee. Ms. McDonald opened the cash register. Ms. McDonald told defendant, "You can have it all." Defendant removed all of the bills from the drawer, including denominations of twenty, ten, five and one dollar bills. Ms. McDonald believed there was approximately $ 300 in the register. Defendant spoke in a calm, pleasant voice. Defendant told Ms. McDonald, "Dont look at my face." However, Ms. McDonald had seen defendants face from the time he entered the restaurant until he approached her. Defendant also spoke to Ed Johnson, a regular customer at the restaurant. Defendant attempted to take Mr. Johnsons watch. Ms. McDonald positively identified defendant at the preliminary hearing and at trial. Mr. Betancourt positively identified defendant at trial. After defendant left, Mr. Johnson and another restaurant patron ran across the street to call the police. Ms. McDonald called police from the restaurant office. At trial, Ms. McDonald indicated that defendants voice sounded like that of the robber. Mr. Betancourt identified the gun in peoples exhibit No. 9 as the firearm used by the robber.
B. Sanamluang Cafe (Counts 5, 6, and 7)
At approximately 3:30 a.m. on February 7, 2000, Wanpen Laoharangsima and Vilasinee Tima were working at the Sanamluang Cafe in Van Nuys. Chantsiriuisac Nuansri was also in the restaurant. Defendant came to the front door of the restaurant and demanded that they open the locked door. Defendant repeated his demands three or four times. Defendant was wearing a knit cap, sunglasses, and dark clothing. Defendant was pointing a dark gun with a magazine at them. Mr. Laoharangsima, Ms. Tima, and Ms. Nuansri hid under a table until defendant left. Mr. Laoharangsima and Ms. Tima spoke with police officers regarding the incident later the same day. Mr. Laoharangsima and Ms. Tima were shown a "six-pack" photographic lineup in April 2000. Both identified defendant as the man that attempted to enter the restaurant with a gun. However, they were unable to identify him at trial. Mr. Laoharangsima and Ms. Tima identified the gun in peoples exhibit No. 9 as the one used by the robber.
C. Frends Beauty Supply (Counts
11, 13, and 16)
At approximately 1:15 p.m. on March 10, 2000, defendant ran into Frends Beauty Supply in North Hollywood waving a gun and screaming, "Everybody, get down, get down." Defendant was wearing dark clothing, a long coat, a frizzy wig, sunglasses, and gloves. Defendant was holding a long, black gun with "holes in the front part." Brian Espar and Nigel Dare were working in the store. Three other men and three women were also present. Upon entering the store, defendant pointed the gun at Mr. Dare and "clicked" it. Mr. Espar and the three women were ordered to accompany defendant who pointed the gun at each person individually. One of the women, Chaska Cooper, began to shake. Defendant ordered Ms. Cooper to come with him. Mr. Espar stepped in front of Ms. Cooper. Ms. Cooper offered to take defendant to the register and give him the money. While Mr. Espar took defendant to the register at the front of the store, the others remained together. Mr. Espar removed approximately $ 700 to $ 1,000 from the cash register and placed it into a small gym bag that defendant provided. Defendant asked if that "was it." When Mr. Espar said it was, defendant said in aggressive manner, "Are you sure?" Mr. Espar gave defendant the change box. Mr. Espar zipped the gym bag and handed it to defendant. Defendant left through the back door that led to an alley. Before leaving, defendant told those present, "Count to a thousand, and then call the cops." Defendant dropped a glove as he left. Mr. Espar locked the door and called the police. Mr. Espar and Mr. Dare were independently shown a photographic lineup from which each identified a photograph of defendant as the individual that robbed them. Mr. Dare indicated defendants eyes were similar to the those of the robber. Both Mr. Dare and Mr. Espar positively identified defendant at trial. Mr. Espar and Mr. Dare identified the wig and gun in peoples exhibit Nos. 8 and 9. Approximately five months before the trial in this case, Mr. Espar received a telephone call from someone whose voice sounded like that of defendant. Mr. Espar described the conversation as follows: "He said he was the person that I accused at the preliminary hearing. [P] . . . He just told me to speak the truth and just tell what you know and dont lie."
D. Carjacking (Counts 17, 18)
On March 17, 2000, Jean Kiefer was sitting in her car, a white Honda, with the drivers door open. Ms. Kiefer heard someone say: "I dont want to disturb you, but I have to use your car. You have to get out of the car." The individual appeared to be an African-American woman with dark brown hair, wearing a long, multi-colored dress, and white sunglasses. The individual was also carrying a fuchsia-colored purse. The person wore bright red lipstick. Ms. Kiefer "protested" several times. However, the individual repeated "she" had to use the car and only had to go two miles. The individual spoke in a distinctive, very low, very quiet, and soft voice. Ms. Kiefer saw a large black gun, which was held in front of an attached case. Ms. Kiefer got out of the car. The "woman" got into Ms. Kiefers car, apologized for taking it and drove away. As Ms. Kiefer stood by, a friend, Dorothy Mosley, appeared. Ms. Kiefer told said that the "woman" had a gun and was taking her car. Ms. Mosley had the feeling that the individual that took the car could have been a cross-dresser. Ms. Kiefer called the police.
At approximately 9:30 a.m., Arcadia Police Officer Daniel Crowther heard a broadcast regarding the carjacking. Shortly thereafter, Officer Crowther saw a white Honda Accord that matched the description of the stolen car. The driver appeared to be a Black female, with shoulder-length brown hair. Officer Crowther activated the patrol car light and made a U-turn to follow the Honda. As the police car approached, the driver of the Honda made a left turn and sped off. The Honda collided with another car after failing to stop at a stop sign. The driver, who was wearing a gold or brown-colored dress and carrying a pink handbag, appeared to be a woman. The driver of the Honda ran to the passenger door of a white Buick that had stopped and grabbed the door handle. The driver of the Buick lunged it forward. The suspect in the dress then ran toward a wall, scaling it. When shown a wig, dress, and a fuchsia purse identified as peoples exhibit Nos. 6, 7, and 8 at trial, Officer Crowther believed they were the same as those worn by the driver of the white Honda. The owner of the Buick which the suspect attempted to enter, Frank Williams, later spoke with Officer Crowther. Officer Crowther described Mr. Williamss statement as follows, "The suspect who had a wig and the glasses and the dress on . . . almost entered his car or opened the door and hopped in and said, Lets go[.]"
Officer Crowther ran after the individual in the wig and dress. The suspect scaled the wall of a condominium. Then Officer Crowther looked over and saw the individual go over the rear wall of the yard. The suspect no longer carried a fuchsia purse. Officer Crowther notified other officers by radio of the foot chase. Officer Crowther went to a common driveway of a condominium complex. While there, Officer Crowther, saw the individual running. The individual was still wearing the dress, but carried the wig in his hand. Officer Crowther concluded that the individual was a man wearing a dress. Officer Crowther chased after the fleeing suspect. The individual jumped over another wall at the end of the driveway. As Officer Crowther looked over the wall, the individual was leaping over the walls of other yards.
Officer Crowther then went to the street. Officer Crowther then encountered Sergeant Stephen Fallavollita, who was part of the perimeter that had been established. Officer Crowther went back to the intersection, where the accident occurred. Defendant was later detained by Sergeant Fallavollita. Sergeant Fallavollita saw residents running away and pointing to defendant. Defendant wore a gray T-shirt, pants, and no shoes. Sergeant Fallavollita saw what appeared to be makeup on defendants face. Sergeant Fallavollita confronted defendant at gunpoint. Defendant was ordered to the ground. After defendant was handcuffed by other officers and placed in a nearby police car, he was seen wiping the makeup from his face onto his shoulder and pants. Defendant had some scrapes on the inside of his wrists. Officer Crowther went back to where defendant had been taken into custody. Officer Crowther recognized defendant as being of the same build and stature as the suspect in the dress. Defendants head was shaved like the person who removed the wig. Officer Crowther recovered a pink bag in the backyard where defendant initially jumped over the wall. Officer Crowther found a loaded "Tech-9" machine gun inside the purse. The magazine clip of the gun contained numerous bullets. Officer Crowther saw a footprint at the base of the wall where defendant had jumped. A resident, identified only as Mr. Choi, spoke with Officer Crowther. Mr. Choi had seen someone who jumped through his yard. The man had attempted to enter Mr. Chois home. The man was wearing a light-colored shirt and jeans.
Police Officer Paul Foley searched the area where defendant was arrested. Officer Foley found a left shoe as well as a footprint that appeared to match the distinct tread from that shoe. Officer Foley also recovered a womans dress, a right tennis shoe that matched the one recovered previously, and a pair of white sunglasses in the rear yard of a residence three or four houses from where defendant was arrested. Officer Foley found a pair of gloves and a wig in the rear of the same yard. Fibers from the wig were subsequently found to be similar to fibers found in Ms. Kiefers white Honda. Although officers searched the area, no other suspects were located.
Ms. Kiefer and Ms. Mosley were driven in separate police cars to the scene where defendant was arrested. Ms. Kiefer could not identify defendant. However, Ms. Mosley believed defendant had the same build and height as the person who committed the carjacking. At trial, Ms. Kiefer testified that the wig (8), dress (7), fuchsia handbag (6), white sunglasses (10), gloves (11), and gun (9) in Peoples exhibit Nos. 6-11, were similar to those worn by or in possession of the person who carjacked her white Honda. Ms. Mosley identified the wig and white sunglasses as exactly like the ones worn by the carjacker.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues there is insufficient evidence to sustain the judgments against him because there was insufficient proof of identity. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, 827 P.2d 388, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631, 276 Cal. Rptr. 874, 802 P.2d 376; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at pp. 318-320; People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374; People v. Marshall (1997) 15 Cal.4th 1, 34, 931 P.2d 262; People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103; People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal. Rptr. 228, 721 P.2d 110; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618; People v. Stanley (1995) 10 Cal.4th 764, 792, 897 P.2d 481; People v. Bloom (1989) 48 Cal.3d 1194, 1208, 259 Cal. Rptr. 669, 774 P.2d 698; People v. Bean (1988) 46 Cal.3d 919, 932, 251 Cal. Rptr. 467, 760 P.2d 996.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal. Rptr. 529, 457 P.2d 321.)
Defendant challenges the verdicts based primarily on the inconclusive identifications by the victims. However, in addition to the tentative identifications, there was substantial circumstantial evidence from which a rational jury could find beyond a reasonable doubt that defendant committed the offenses. Moreover, the testimony of one witness, even if it did not consist of a positive identification of defendant, was enough to sustain the guilty verdicts. (People v. Elwood (1988) 199 Cal. App. 3d 1365, 1372-1373, 245 Cal. Rptr. 585 (Elwood); People v. Midkiff (1968) 262 Cal. App. 2d 734, 740, 68 Cal. Rptr. 866 ["the identification of the defendant need not be positive"]; People v. Wiest (1962) 205 Cal. App. 2d 43, 45-46, 22 Cal. Rptr. 846 ["testimony that a defendant resembles the robber [citation] or looks like the same man [citation] has been held sufficient. . . ."].) The Elwood court reiterated: "Purported weaknesses in identification testimony of a single eyewitness are to be evaluated by the jury." (People v. Elwood, supra, 199 Cal. App. 3d at p. 1372; People v. Turner (1983) 145 Cal. App. 3d 658, 671, 193 Cal. Rptr. 614, overruled on different points in People v. Newman (1999) 21 Cal.4th 413, 415, 981 P.2d 98 and in People v. Majors (1998) 18 Cal.4th 385, 411, 956 P.2d 1137.) In addition, the reviewing court must defer to the jury and not substitute its evaluation of a witnesss credibility for that of the fact finder. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal. Rptr. 611, 792 P.2d 643.) In this case, there was substantial evidence to support defendants convictions.
First, there was substantial evidence to support defendants convictions as to the Sittons restaurant robbery with an assault weapon. Ms. McDonald positively identified defendant at the preliminary hearing and at trial. Ms. McDonald also indicated that defendants voice sounded like that of the robber. Mr. Betancourt identified defendants picture in a six-pack photographic lineup. Also, Mr. Betancourt positively identified defendant at trial. Both Ms. McDonald and Mr. Betancourt identified the assault weapon used by defendant.
Second, defendants challenge to the Frends Beauty Supply robbery with an assault weapon conviction is without merit. Both Mr. Espar and Mr. Dare positively identified defendant from a photographic lineup and at trial. Mr. Dare indicated defendants eyes were similar to those of the robber. In addition, Mr. Espar and Mr. Dare identified the wig and assault weapon recovered at the time of defendants arrest as the items used in the robbery of the beauty supply store. Aaron Wood, called as a defense witness, testified he was in the store at the time the robbery occurred. Mr. Wood recalled the robber had light brown eyes, just like defendant. Defendant had the same build as the robber. Mr. Wood believed the wig and gun confiscated at the time of defendants arrest were used in the robbery.
Third, there was substantial evidence to support defendants conviction for the carjacking of Ms. Kiefer and the attempted carjacking of Mr. Williams. Ms. Kiefer clearly identified the wig, dress, purse, and sunglasses her assailant wore, as well as the assault weapon he held. Ms. Keifers car was chased by Officer Crowther, who also observed the attire. Officer Crowther saw the individual dressed as a woman run to Mr. Williamss car and attempt to enter it. When the individual was unsuccessful, he ran, while still wearing makeup, a dress and carrying the fuchsia purse. Officer Crowther saw the individual scale a wall. After an extended chase over other walls and through yards, defendant was apprehended. The wig, dress, sunglasses, shoes, and fuchsia purse were recovered from along the path of the pursuit. The purse had an automatic assault weapon inside. In addition, at trial, Ms. Kiefer testified the wig, dress, fuchsia purse, white sunglasses, gloves, and gun found in the area where defendant had been chased were similar to those worn by or in possession of the individual that took her white Honda. Ms. Mosley, who was present when Ms. Kiefers car was driven away, testified that the wig and sunglasses found near where defendant was arrested were exactly like the ones worn by the carjacker. Ms. Mosley also testified that the man she saw at the field identification where defendant was in custody was of the same build and height as the carjacker.
Finally, we agree with the Attorney General that the evidence of all the crimes when considered together support the jurors findings of guilt. The similarities in the offenses, such as the use of the same assault weapon, use of a wig, gloves, sunglasses, and disguise, the close proximity in time and location between the crimes, and the identifications, suggest the same individual was the perpetrator. Both Mr. Dare and Mr. Wood noted the robbers unusual light brown eyes. In addition, defendant called Pauline Burley as a defense witness. Ms. Burley testified that on March 8, 2000, defendant robbed the Fredericks of Hollywood store where she worked. At the time, defendant was wearing gloves, sunglasses, and a womans wig. Defendant pointed a gun at Ms. Burley and ordered her to remove the money from the cash register. Defendant threw Ms. Burley a duffel bag in which to place the money. As he left, defendant said, "Wait, 10 minutes and then call the police." Ms. Burley identified defendant from a photographic lineup. Ms. Burley testified that defendant was approximately the same height as the robber. After the preliminary hearing, defendant telephoned Ms. Burley and thanked her for not identifying him in court. These factors closely parallel the distinctive modus operandi defendant utilized in the other offenses for which he was convicted.
B. CALJIC No. 17.41.1
Defendant argues that the trial court improperly instructed the jury with CALJIC No. 17.41.1, which violated his constitutional right to a fair trial and due process. This contention has no merit. (People v. Engelman (2002) 28 Cal.4th 436, 441.) Nonetheless, under any standard of reversible error, the alleged error was entirely harmless given the uncontradicted nature of the overwhelming and conclusive proof of guilt. (Chapman v. California (1967) 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; see also People v. Molina (2000) 82 Cal.App.4th 1329, 1332-1336.)
C. Disclosure of Jurors Personal Information
Defendant argues the trial court improperly denied his post-trial motion to disclose personal juror information. Defendant was convicted on July 31, 2001. He filed his motion to disclose personal juror information on August 10, 2001. Defendants motion was based on one jurors admitted friendship with a witness and its possible effect on other jurors. That juror was dismissed and an alternate juror seated. In addition, defendants motion was premised on the possibility that jurors saw him come from the custody area on the first day of trial. The trial court denied the motion noting: "Those issues were fully litigated with the jurors in court. There is no need to give out personal juror identification for further interviews."
1. Factual and procedural background
(a) Defendants custody status
During jury selection, defendant was brought into the courtroom from the custody area at the same time the jurors were entering from another door. Defendant moved to dismiss the panel, indicating that his custody status "tainted their minds." The trial court initially granted the motion without formally declaring a mistrial. However, the trial court reconsidered its ruling the following day: "[Defendant] is dressed in his civilian clothes. He is not handcuffed. He is not shackled. When he comes out of a lockup, he is not in handcuffs. [P] When he-as I was taking the bench, he was being brought out of the lockup. And the trickles of jurors started. And the bailiff was not in a position for me to stop anything that was going on. And I didnt realize that they were being brought in the same time as the defendant. [P] [Defendant] came out of a door which isnt marked lockup. There was no indicia of custody at that time. Mr. Sanchez [the investigator] walked out behind him. [P] I dont know who was in their seat already, or in a position to see [defendant] at the time he came out. . . . [P] . . . [P] The jurors, of course, always can speculate on things. They can speculate, because of the charges, that [defendant] is in custody. They can speculate, because they dont see [defendant] in the hallway, that [defendant] is in custody. They can specifically speculate, that when the defendant walks out of the door thats in the courtroom, that he is in custody. But, they could also reasonably surmise that he is coming out of a conference room and so forth. [P] So what I am going to do when the jurors appear today . . . I am going to find out if any of them observed [defendant] before he was seated at counsel table. . . . [P] . . . Depending on the show of hands, Ill talk to those jurors individually. Ill ask them what, if anything, they observed, if they formed any opinions based upon it. And then Ill make a determination whether or not those particular jurors should be excused as [defendant] requested yesterday, or whether or not an admonishment will be sufficient." Thereafter, the trial court inquired of the prospective jurors: "I wanted to ask you was whether or not there was anything that occurred at any time after the last rest yesterday that-the last recess-I dont meant the evening recess, but the last time you came into the courtroom for the last part of our session - that would cause any of you to reconsider whether or not you can be fair and impartial in this case." Although four jurors responded and were interviewed individually, none of the responses related to defendant, his custody status or his position in the courtroom at the time they entered. In fact, three of the four jurors were excused for unrelated problems. Defendant later utilized a peremptory challenge to excuse the fourth juror.
(b) Juror No. 12
Following testimony by Mr. Espar, juror No. 12 sent a note to the judge stating, "Your Honor. I want you to know that the first witness today, Brian Espar, is a friend of mine. I went to high school with and played soccer with him at the A.Y.S.O. Balboa Park Leagues. I would have informed you earlier, but his last name was mispronounced before he was put on the stand. I think we were calling him Es-par rather than Es-per, I just thought you should know. Juror No. 12." When questioned further, juror No. 12 admitted knowing Mr. Espar since 1991. Most recently, juror No. 12 saw Mr. Espar approximately once each year. The next day, after a discussion with defendant and the prosecutor, the trial court stated its intention to excuse juror No. 12. When juror No. 12 was called to the courtroom to be excused, the following facts were developed: Mr. Espar had approached juror No. 12 the preceding day; Mr. Espar asked, "Hey, how are you doing?"; juror No. 12 then pointed to his badge as if to indicate, "I cant talk to you right now"; several of the other jurors appeared to see the interchange between juror No. 12 and Mr. Espar; and juror No. 12 was asked whether any other jurors asked about the meeting. Juror No. 12 described the conversation concerning Mr. Espar with the other jurors as follows: "I just said he was a classmate of mine. Thats about it. Just that I knew him in high school. And I was surprised when I saw him walk in . . . . [P] . . . I told them that I knew him, and it just kind of surprised me when he came in, because he wasnt on the list of names that [the trial court] read off when the whole panel was [present]." The trial court asked juror No. 12 about his discussion with the other jurors. The trial court asked: "But did you say . . . He is a really good guy or you know . . . . [P] Id believe him no matter what he said . . . [?]" Juror No. 12 responded, "No, I didnt say that." Thereafter, the trial court examined the remaining jurors individually regarding what, if anything, juror No. 12 may have said to them. Only one juror saw Mr. Espar speak to juror No. 12. Nine jurors were aware of the past relationship between juror No. 12 and Mr. Espar. Some of the jurors advised juror No. 12 to inform the court of this information. Of those that saw or heard about juror No. 12s contact or friendship with Mr. Espar, none of the jurors felt that information would affect their impartiality. The trial court denied defendants mistrial motion based on the fact that: "Each of you [defendant and the prosecutor] were given an opportunity [to], and indeed did when you thought it was appropriate, ask the jurors questions. And each one of the jurors said this would not affect their ability to be fair or to judge the credibility of this witness [Mr. Espar]. There was nothing about anything that the jurors said that made them worthy of disbelief."
(c) Subsequent motions
On December 4, 2001, defendant, who was appearing in pro se, filed a motion to compel disclosure on the following ground: "After my trial something other than the fact that Juror No. 12 was [a] personal acquaintance of witness Espar just did not sit right with me, so after intense recollection I remembered where I thought I saw him prior to my trial which was at the Los Angeles Sentinel. So upon calling the Los Angeles Sentinel to inquire about my suspicion, not only did I confirm that this person (Juror No. 12) who was excused was in fact the same person who witnessed the argument I had with the lady at the Sentinel, I also found out that this person (Juror No. 12) was the son of the lady I was told was Betty Pleasant, Acting Editor of [the] Los Angeles Sentinel." That motion was denied on March 19, 2002, at which time the trial court noted, "The juror was actually dismissed after disclosing his association with the witness [Brian] Espar, he was not a deliberating juror, and he did not indicate at any time that he recognized the defendant on any prior occasion . . . ." However, this is not the subject of defendants claim on appeal. In addition, the Attorney General discusses defendants subsequent new trial motion filed in January 2002. In that motion, defendant alleged that the jurors saw him enter from a custody area. The trial court denied the new trial motion noting it had already found that defendant: entered through an unmarked door; wore a suit; had no restraints; was accompanied by a defense investigator who also wore a suit; the door clearly could have led to any room; and because the jurors never saw defendant in the hallway they could reasonably assume he was in custody absent that incident. The trial court found defendant suffered no prejudice as a result of the incident.
2. The trial court properly denied defendants motion for personal juror information
California Code of Civil Procedure section 206, subdivision (g), provides in pertinent part, "Pursuant to Section 237, a defendant or defendants counsel may, following the recording of a jurys verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the courts records necessary for the defendant to communicate with jurors for the purposes of developing a motion for new trial or any other lawful purpose." Code of Civil Procedure section 237 provides in pertinent part: "(a) . . . [P] (2) Upon the recording of a jurys verdict in a criminal jury proceeding, the courts record of personal juror identifying information of trial jurors . . . shall be sealed until further order of the court as provided by this section. [P] . . . [P] (b) Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the jurors personal identifying information. . . . The court . . . shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. . . ." (See also People v. Jefflo (1998) 63 Cal.App.4th 1314, 1318-1323 [defendant failed to meet his threshold burden of demonstrating good cause for a hearing regarding the release of identifying information on all the jurors].)
In Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091, 979 P.2d 963, the California Supreme Court held that in addition to the statutory provisions for release of personal juror information: "Trial courts retain inherent power to protect both juror safety and juror privacy." In addition, The Supreme Court has held: "Strong public policies protect discharged jurors from improperly intrusive conduct in all cases." (Id. at p. 1092; In re Hamilton (1999) 20 Cal.4th 273, 303-304, fn. 23, 975 P.2d 600; Ballard v. Uribe (1986) 41 Cal.3d 564, 575-578, 224 Cal. Rptr. 664, 715 P.2d 624 (conc. opn. of Mosk, J.).) The Townsel court held: "These concerns, however, must be balanced with the equally weighty public policy that criminal defendants are entitled to jury verdicts untainted by prejudicial juror misconduct. [Citations.]" (Townsel v. Superior Court, supra, 20 Cal.4th at p. 1092; People v. Atkins (1988) 203 Cal. App. 3d 15, 27, 249 Cal. Rptr. 863, overruled on a different point in People v. Jones, supra, 51 Cal.3d at p. 322; see also In re Hitchings (1993) 6 Cal.4th 97, 110-111, 860 P.2d 466.)
In this case, defendant did not set forth a sufficient showing for the release of the jurors personal information. As the trial court noted, both issues were adequately resolved at trial. In each instance, the jurors were individually interviewed regarding any potential prejudice. Furthermore, in each instance it was readily apparent that the jurors were not influenced in any way.
D. Sentencing
1. Trial courts refusal to strike prior conviction
Defendant argues the trial court abused its discretion in refusing to strike a prior serious felony conviction pursuant to section 1385, subdivision (a). While the trial judges order is subject to review for abuse of discretion, the California Supreme Court has made clear: "A courts discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with [Penal Code] section 1385[, subdivision] (a), and is subject to review for abuse. . . . [P] "The trial courts power to dismiss an action under [Penal Code section 1385 , subdivision (a)], while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be in furtherance of justice."" (People v. Williams (1998) 17 Cal.4th 148, 158-159, 162, 948 P.2d 429, quoting People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, 917 P.2d 628; see also People v. Garcia (1999) 20 Cal.4th 490, 499-500, 976 P.2d 831.)
The Romero court noted that a trial court abuses its discretion if it strikes a sentencing allegation merely on the basis of the effect on defendant: "Nor would a court act properly if `guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, while ignoring `defendants background, `the nature of his present offenses, and other `individualized considerations. [Citation.]" (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531, quoting People v. Dent (1995) 38 Cal.App.4th 1726, 1731 .) In Williams, the Supreme Court further clarified the standard for reviewing a ruling on whether to strike a prior conviction under section 667, subdivisions (b) through (i): "The 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 schemes 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." (People v. Williams, supra, 17 Cal.4th at p. 161; see People v. Garcia, supra, 20 Cal.4th at pp. 498-499.)
Defendant had used at least five various aliases. On April 25, 1985, a juvenile court petition was sustained for robbery. Defendant was placed in the camp community placement program. On July 25, 1985, he was arrested for narcotics sale in violation of his probation. He was again placed in the camp community placement program. On November 12, 1985, defendant was convicted as an adult of receiving stolen property. He was ordered to serve 180 days in jail as part of a three-year probationary term. On April 2, 1990, defendant was convicted of second degree robbery. He was sentenced to two years in state prison to be served consecutive to a separate conviction for unlawful sexual intercourse with a minor, for which he was sentenced to eight months in the state penitentiary. Defendant was paroled on April 15, 1991. On April 8, 1992, defendant was convicted of second degree robbery with use of a weapon, taking a vehicle without the owners consent, and escape from jail. He was sentenced to 13 years, 8 months in state prison. Defendant was again paroled on December 4, 1999. The robbery of Sittons Restaurant in this case was committed on February 7, 2000. He was arrested in the multiple offenses in these cases on March 17, 2000, while still on parole.
In this case, the trial court looked to defendants criminal history noting, "I have read and considered the probation report, and the supplemental probation report, and I read and considered prior-the L.A. County prior, BA04440." In denying the motion to strike a prior conviction, the trial court noted: "The two robbery convictions, the one in 1990, the one in 1993 are the convictions that were alleged as strikes. Defendant alleges that he didnt sign an agreement that the robbery conviction could be used in a possible third strike case. Of course, thats not the requirement. Its whether the defendant was informed that a conviction can be used to enhance a future criminal conviction . . . . [P] So, finally, the court must determine, and Ive heard argument, on whether or not defendant falls within the Three Strikes law, or he should be given consideration and leniency based upon his background and history. . . . [P] So we have the juvenile robbery in 1984, then the adult conviction for receiving or grand theft auto-type receiving stolen property in 1985, then he had the first case which became the strike strike, a 211 which is - really sounded more like a carjack, because he went up to a lady in a gas station and ultimately-and robbed her and took her car. [P] At that time he was sentenced to consecutive time for [Penal Code section] 261.5. In another case, it was a two-year eight month commitment. So he got out and he fairly shortly thereafter committed the robbery — and [Vehicle Code section] 10851 by the way and escape in Orange County in Case number C88537, one of the strikes. And he committed this in 1992 while he was on parole for the last robbery. [P] So he was released from the Orange County case, or he was parole, if the Probation report-the original probation report is correct, on December the 4th, [1999]. So he was apparently crime free from December 19, 1999 until February the [7th], 2000. And that was the date of the Sittons restaurant crime. The crimes in this case occurred in February and March of 2000. [P] Ive consider the defendants position that he was a rehabilitated citizen in 1999, but still, were talking about two months-two months-between his parole and the first crime, the crime considered. [P] The defendants argument that he had not used a firearm before, that just shows the court, since the conviction before was a knife, the conviction before that was with nothing, that his crimes are increasing in seriousness. [P] The fact that the defendant had a job and a car and tested negative for drugs for two months, and you can also tell from the way he prepared and put on this case, the defendant had a lot going for him. He was bright. He could have-he didnt have to turn to this crime. However, he did, and I dont find that to be mitigation under the circumstances. [P] The fact that no one was hurt or injured is one of those fortuitous events when the defendant here used an assault weapon in each of the crimes. [P] So, the defendant is exactly the type of person, exactly the person that falls squarely within the Three Strikes law, and the Romero motion is denied." There was no abuse of discretion in the trial courts reasoned factually based decision not to strike one or both prior serious felony conviction findings pursuant to section 1385, subdivision (a). (People v. Cole (2001) 88 Cal.App.4th 850, 873-874; People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
2. Constitutionality of defendants sentence
Defendant argues that his sentence is so grossly disproportionate as to violate the United States and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) This argument has not merit. (Ewing v. California (2003) 155 L. Ed. 2d 108, 538 U.S. ___, 123 S. Ct. 1179, 1189-1190; see also Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, 538 U.S.___, 123 S. Ct. 1166, 1174-1176.) We also reject defendants argument that sections 667, subdivisions (b) through (i), and 1170.12 are invalid on their face or as applied. The statute does not violate the prohibition against ex post facto laws, double jeopardy, and due process as defendant alleges. The United States Supreme Court reiterated that finding: "When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eight Amendment prohibits California from making that choice. To the contrary, our cases establish that States have a valid interest in deterring and segregating habitual criminals. Parke v. Raley [(1992)] 506 U.S. 20, 27, 121 L. Ed. 2d 391, 113 S. Ct. 517 []; Oyler v. Boles [(1962)] 368 U.S. 448, 451, 7 L. Ed. 2d 446, 82 S. Ct. 501 [], [] (The constitutionality of the practice of inflicting severe criminal penalties upon habitual offenders is no longer open to serious challenge). Recidivism has long been recognized as a legitimate basis for increased punishment. See Almendarez-Torres v. United States [(1998)] 523 U.S. 224, 230, 140 L. Ed. 2d 350, 118 S. Ct. 1219 [], [] (recidivism is as typical a sentencing factor as one might imagine); Witte v. United States [(1995)] 515 U.S. 389, 399, 132 L. Ed. 2d 351, 115 S. Ct. 2199 [] (In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense . . . [is] "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one" (quoting Gryger v. Burke [(1948)] 334 U.S. 728, 732, 92 L. Ed. 1683, 68 S. Ct. 1256 [], []))." (Ewing v. California, supra, 538 U.S. ___, 123 S. Ct. at pp. 1187-1188; see also McDonald v. Massachusetts (1901) 180 U.S. 311, 313, 45 L. Ed. 542, 21 S. Ct. 389 [Massachusetts habitual offender statute did not violate the ex post facto provisions of the United States Constitution]; People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal. Rptr. 623, 694 P.2d 736, overruled on another point in People v. Guerrero (1988) 44 Cal.3d 343, 348-355, 243 Cal. Rptr. 688, 748 P.2d 1150 [residential burglary occurring prior to the adoption of Proposition 8 may be used to enhance a crime occurring after the initiative was adopted by the voters].)
3. Imposition of term on count 16
We asked the parties to provide further briefing on the issue of whether the trial court properly stayed the sentence in count 16 pursuant to section 654, subdivision (a) without first imposing a specific term. We agree with the Attorney General that the trial court had a duty to impose a specific sentence as to count 16 prior to staying the sentence. The California Supreme Court has held that where two counts are subject to the provisions of section 654, subdivision (a): "The proper procedure is to impose sentence for both of the counts, and stay sentence for one of them." (People v. Norrell (1996) 13 Cal.4th 1, 13-14, 913 P.2d 458; People v. Pearson (1986) 42 Cal.3d 351, 359-361, 228 Cal. Rptr. 509, 721 P.2d 595; People v. Watkins (1994) 26 Cal.App.4th 19, 25, fn 1.) The sentence as to count 16 is to be 25 years to life for robbery. ( §§ 211, 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) Additionally, defendant is subject to a 10-year prison term pursuant to section 12022.5, subdivision (b). The abstract of judgment is to be modified to reflect these terms and that the entire count 16 sentence is stayed pursuant to section 654, subdivision (a).
4. Section 12022.53, subdivision (b), enhancement as to count 18
The parties are in agreement that the trial court improperly imposed a 10-year section 12022.53, subdivision (b) enhancement as to count 18. The jurors found that allegation not true. Therefore, the judgment is reversed as to that enhancement. The abstract of judgment must be corrected to delete any reference to a section 12022.53, subdivision (b) enhancement as to count 18.
5. Indeterminate terms imposed as to counts 2, 3, 4, 11, 12, 13, 17, and 18
Following further briefing, the parties are in agreement that the abstract of judgment should reflect the specific indeterminate terms imposed as to each of counts 2, 3, 4, 11, 12, 13, 17 and 18, rather than an aggregate term. (Cal. Rules of Court, rule 12(c)(1); People v. Mitchell (2001) 26 Cal.4th 181, 186-188.)
IV. DISPOSITION
The judgment is reversed as to the Penal Code section 12022.53, subdivision (b) enhancement which was imposed as to count 18. No further proceedings are to occur as to that allegation. Further, the abstract of judgment is modified to set forth the duration of the terms imposed as to counts 2, 3, 4, 11, 12, 13, and 17. The abstract of judgment as to count 16 is modified to state: for robbery, the term is 25-years to life; for firearm use, the term is 10 years; and the term imposed under count 18 is stayed pursuant to Penal Code section 654, subdivision (a). The clerk of the superior court is directed to prepare and deliver to the Department of Corrections an amended abstract of judgment, which accurately sets forth the changes noted herein. The judgment is affirmed in all other respects.
We concur: GRIGNON, J. MOSK, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.