Opinion
F060584
11-04-2011
THE PEOPLE, Plaintiff and Respondent, v. RASHOD OMAR BLEDSAW et al., Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant Rashod Omar Bledsaw. David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Elmar Ketell Scott. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1097055)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant Rashod Omar Bledsaw.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Elmar Ketell Scott.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Rashod Omar Bledsaw and Elmar Ketell Scott (appellants)were convicted of three counts of robbery (Pen. Code, § 211) and four counts of assault with a semiautomatic firearm (§ 245, subd. (b)). The jury found true the allegations that appellants personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)), took property in excess of $50,000 (§ 12022.6, subd. (a)(1)), and personally used a firearm in the commission of two of the assault charges (§ 12022.5, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that both appellants had suffered a prior serious felony conviction (§§ 667, subds. (a), (d), 1170.12, subds. (a), (d)), and that Bledsaw had served a prior prison term (§ 667.5, subd. (b)).
Appellants were charged and tried with a coparticipant, Dashelle Sherree Harris (People v. Harris (July 28, 2010, F057937) [nonpub. opn.]).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced Bledsaw to a total term of 32 years 4 months in state prison, and Scott to a total term of 31 years 4 months in state prison.
Appellants contend that that trial court erred prejudicially in failing to identify the target crime correctly during instructions, that there is insufficient evidence to support the gun enhancements attached to the two assault charges, that the trial court erred in imposing the section 1202.5 fine, and that the abstracts of judgment must be corrected to reflect oral pronouncement of judgment. We agree with the latter two contentions but in all other respects affirm the judgment.
FACTS
On August 24, 2005, two men brandishing guns and with bandannas covering their faces ran into the Valley First Credit Union in Turlock and told everyone to get down. One of the men wore a dark hooded sweatshirt with the hood up and a blue bandanna covering his face; the other wore a brown and khaki knit cap and a white bandanna. Branch manager Ted Paollella and employees Carmen Raya, Joanna Risen, and Somer Foster were present at the time.
One of the men motioned for Raya to come towards him. When she did, he grabbed her. The surveillance video taken during the event shows Raya going to the bank's vault room with her hands up.
One of the men grabbed Foster by the shirt and pulled her over to the vault door and had her prop it open. The man then ordered Foster to get down on the ground and she complied. After the men took the money from the vault, Foster overheard them say they wanted the money from the ATM (automated teller machine). The men ordered the employees into the bathroom where they stayed until the robbery was over.
The man who grabbed Raya told Paollella he wanted to go to the vault. When Paollella reached the vault, Raya, Foster and another male were inside on the floor. After Paollella unlocked the cash drawer, he was instructed to lie on the ground. After the men took the money, they asked about the ATM. But before they were able to access the ATM, the men left the bank with approximately $86,000.
Stephanie Maddox was outside the credit union when she noticed a man with a scarf covering his face crouched near the front door. Thinking this was unusual, Maddox followed the man inside. When Maddox entered, a man wearing a scarf covering his face pointed a gun at her head and told her to lie down in front of the safe. She complied.
Troy Webb and Niles Gregory were working in the parking lot next door to the credit union when a coworker ran into the parking lot and told them the credit union was being robbed. Moments later, a man ran into the parking lot, attempted to scale a wall, turned and pointed a semiautomatic or automatic gun at Webb and Gregory and told them to get down on the ground. The man then jumped over the wall. Webb and Gregory looked over the wall and saw two men jump into the trunk of a vehicle, which sped off.
Shortly thereafter, officers apprehended a vehicle and discovered appellants hiding in the trunk with a large amount of cash and two loaded semiautomatic firearms.
DISCUSSION
1. Instructional Error
Appellants were charged with four counts of assault with a semiautomatic firearm in violation of section 245, subdivision (b); specifically, assault on Gregory (count 4), on Webb (count 5), on Maddox (count 6), and on Foster (count 7). Since disguises prevented the witnesses from distinguishing which appellant committed which assault, the prosecutor argued in part on a theory of aiding and abetting and the natural and probable consequence doctrine.
The jury was instructed, inter alia, with CALCRIM Nos. 875, assault with a semiautomatic firearm, 915, the lesser included offense of simple assault, and 402, the natural and probable consequence doctrine. Appellants contend the trial court erred, both orally and in writing, in giving CALCRIM No. 402 when it substituted the nontarget offense of assault with a deadly weapon with the target offense of robbery, so that the instruction read, in part, as follows:
"To prove that a defendant who did not personally commit an assault with a semiautomatic firearm guilty of that crime, the People must prove that: [¶] One, the defendant is guilty of robbery; [¶] Two, during the commission of robbery, a co-participant in that robbery committed the crime of assault with a semi-automatic firearm; [¶] Three, under all the circumstances, a reasonable person in the defendant's position would have known that the commission of robbery was a natural and probable consequence of the commission of robbery." (Italics added.)Based on the erroneous substitution of "robbery" for "assault with a semiautomatic firearm" in the third element of CALCRIM No. 402, appellants claim the trial court failed to instruct the jury on an essential element, requiring reversal of their assault convictions. We agree with respondent that although error occurred, it was harmless.
Scott makes this argument as to all four counts of assault; Bledsaw only as to counts 4 and 5.
A person who knowingly aids and abets criminal conduct is guilty not only of the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) Whether a charged crime is a natural and probable consequence of a target crime is a question of fact. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
Here, the prosecutor proceeded, in part, on the natural and probable consequence theory as to the assault charges, at times in argument referring to appellants and at other times referring to Harris, appellants' coparticipant who drove the getaway car. When the prosecution relies on the natural and probable consequences doctrine to prove a defendant's guilt, the court has a sua sponte duty to identify and describe for the jury any target offense allegedly aided and abetted by the defendant. (People v. Prettyman (1996) 14 Cal.4th 248, 268-269.)
"In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. [Citations.] We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given. [Citations.]" (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
Despite the erroneous substitution of the target offense for the nontarget offense in CALCRIM No. 402, we find the instruction, when read in its entirety, adequately instructed the jury on the natural and probable consequences theory of liability pursued by the prosecution. There is no reasonable possibility the jury would have understood it could find appellants guilty of the crime of assault with a semiautomatic firearm if it did not find that the commission of assault with a semiautomatic weapon was a natural and probable consequence of the commission of the robbery under the circumstances in this case. Immediately before setting out the three elements quoted above, CALCRIM No. 402 correctly told the jury:
"If you find that a defendant did not personally commit an assault with a semiautomatic firearm, you must first decide whether that defendant is guilty of robbery. If you find that defendant is guilty of robbery, you must then decide whether she or he is guilty of assault with a semiautomatic firearm. [¶] Under certain circumstances a person who is guilty of one crime, may also be guilty of other crimes that were committed at the same time. To prove that a defendant who did not personally commit an assault with a semiautomatic firearm guilty of that crime, the People must prove ...."
And immediately after setting out the three elements quoted above, CALCRIM No. 402 correctly told the jury:
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the assault with a semiautomatic firearm was committed for a reason independent of the common plan to commit the robbery, then the commission of assault with a semiautomatic firearm was not a natural and probable consequence of robbery."
We presume that the jury consists "of intelligent persons who are fully able to understand, correlate and follow the instructions given to them." (People v. Archer (1989) 215 Cal.App.3d 197, 204.) In light of the correct language in the latter half of the instruction, we believe intelligent jurors would have understood CALCRIM No. 402 to be asking them to determine whether the commission of assault with a semiautomatic firearm in this case was a natural and probable consequence of the commission of robbery, not whether robbery was a natural and probable consequence of robbery, which would constitute a nonsensical reading of the instruction.
2. Gun Enhancement
Appellants were convicted in counts 6 and 7 of assault with a semiautomatic firearm in violation of section 245, subdivision (b). In addition, the jury found true the allegation attached to those counts that appellants personally used a firearm, a handgun, pursuant to section 12022.5, subdivision (a), in the commission of those offenses. Appellants argue that, due to disguises worn by both of them, the witnesses were unable to distinguish which appellant perpetrated which assault and, therefore, the evidence is legally insufficient to support appellants' "personal" gun use related to the counts.
Respondent disagrees, but submits that the gun enhancement must nonetheless be stricken because section 12022, subdivision (a)(1) authorizes a one-year enhancement for the use of a firearm in the commission of a felony, "unless the arming is an element of that offense," and section 245, subdivision (b), of which appellants were convicted, describes "assault upon the person of another with a semiautomatic firearm ...." When personal use of a firearm is an element of the underlying offense, imposition of the one-year sentence enhancement for that personal use is not proper since personal use of the firearm is an element of the charged offense. (People v. Sinclair (2008) 166 Cal.App.4th 848, 855-856.)
We disagree with both parties for the following reasons. Preliminarily, we note that the gun enhancement at issue here is not section 12022, subdivision (a), as argued by respondent, but section 12022.5, subdivision (a), which provides:
"Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4 , or 10 years, unless use of a firearm is an element of that offense."But section 12022.5, subdivision (d) states in relevant part:
"Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used ...."
The California Supreme Court held in People v. Ledesma (1997) 16 Cal.4th 90, 97, that "[section 12022.5,] subdivision (d) creates an exception to the proviso in subdivision (a) and renders imposition of a use enhancement mandatory for the enumerated offenses." Accordingly, imposition of the section 12022.5, subdivision (a) enhancement appended to the section 245, subdivision (b) offense of assault with a semiautomatic firearm is mandatory, if proven.
That said, we must still resolve the question of whether there is sufficient evidence to support the gun enhancements related to counts 6 and 7. The evidence at trial was that count 6 involved Stephanie Maddox, who saw a man outside the credit union with a scarf covering his face crouched near the front door. Maddox followed the man inside and was then assaulted. Count 7 involved Somer Foster, who was grabbed by the shirt and pulled over to the vault door and told to prop it open. Since both robbers were in disguise, Foster and Maddox were unable to distinguish which appellant perpetrated the assault against them.
Appellants challenge the imposition of the enhancement because each claims he did not personally commit the assault with a firearm on Maddox and Foster, and the statute does not allow a finding of personal gun use on vicarious liability. We disagree.
In In re Antonio R. (1990) 226 Cal.App.3d 476, the defendant shot his gun into a crowd, and someone in the crowd fired back, killing one of the defendant's companions. The defendant was convicted of murder, and his sentence was enhanced by two years under section 12022.5. The defendant cited, inter alia, as appellants do here, to People v. Walker (1976) 18 Cal.3d 232 and People v. Allen (1985) 165 Cal.App.3d 616, challenging the enhancement because he did not personally commit the murder: "As he was found guilty of murder on the theory of vicarious liability, appellant reasons, he is not subject to the enhancement, even if he personally used a firearm while the killing was being committed." (In re Antonio R., supra, at p. 479.)
The court in In re Antonio R. distinguished Walker and Allen, noting that, while they stood for the proposition that one who does not personally use a firearm may not suffer a section 12022.5 enhancement, neither case considered whether the enhancement "applies to one who personally uses a firearm but is only vicariously liable for the underlying crime." (In re Antonio R., supra, 226 Cal.App.3d at p. 479.) The court rejected the defendant's argument, stating:
"The obvious purpose of section 12022.5 is to discourage the use of firearms in criminal activity. Had the Legislature meant to exclude from its provisions one who is only vicariously liable, it could easily have done so. ... As we read the statute, one who commits an act which renders him criminally liable, whether directly or vicariously, is subject to the section 12022.5 enhancement if he personally uses a firearm during that act." (Ibid.)
Appellants, like the defendant in In re Antonio R., both used a firearm to commit an act (the robbery) which made each vicariously liable for the assault with a firearm on Maddox and Foster, and each was therefore properly subject to the enhancement. (See People v. Berry (1993) 17 Cal.App.4th 332, 335-339 [listing cases supporting imposition of § 12022.5 enhancement when each defendant holds a gun in a series of joint offenses and enhancement is added for crime one defendant aided and abetted].) Both appellants were armed and actively using a gun when the robbery occurred. Each was therefore vicariously liable for the actions of the other. "'There being no question that appellant personally used a firearm during the course of the instant robbery, the enhancement was entirely proper regardless of whether or not he also personally [used his gun on] the victim[s]. [Citations.]'" (People v. Berry, supra, at p. 337.)
Appellants also cite People v. Nguyen (1988) 204 Cal.App.3d 181, in which the defendant entered a market with an accomplice, both armed. The confederate took a clerk to the rear of the store; the defendant stayed up front. After the defendant shouted a "Vietnamese battle phrase used when 'someone was to kill or be killed,'" the confederate shot the victim. (Id. at p. 185.) The Fourth Appellate District held "the evidence supports a finding of ... use of a firearm during the robbery but not the attempted murder." (Id. at p. 194.)
Subsequently, however, in People v. Walker (1988) 47 Cal.3d 605, 634-635, our Supreme Court held that a defendant who displayed a gun during a robbery was subject to an enhancement for personal use of a gun in the commission of murder as well as robbery, although no witnesses observed who fired the shots, and the defendant handed the gun to his accomplice some time earlier. Rejecting the defendant's contention that the jury should have been instructed that the gun-use allegation could be found true only if the "defendant used the gun to commit the murder, and that his earlier display or use of the gun in the commission of a 'separate' felony (robbery) would be insufficient to support such a finding," the court noted: "Section 12022.5 is intended to distinguish those who are willing to use firearms while committing felonies from those who are not, and to increase the penalty for the former." (Ibid.) "By implication, the California Supreme Court has rejected the reasoning of Nguyen and Allen." (Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 458, fn. 6.)
Appellants were properly subject to the section 12022.5 firearm enhancement on counts 6 and 7, and there is sufficient evidence to support the true findings.
3. Section 1202.5 Fine
At trial, the court imposed "a theft-related fine of $114 under ... Section 1202.5, and that includes penalties and assessments" on each appellant. Appellants contend that this matter should be remanded to allow correction of the abstract of judgment to reduce the section 1202.5, subdivision (a) theft fine of $114 to $10 and to separately list all fines, fees, and penalties imposed on each count. Respondent concedes the issue, and we agree.
Section 1202.5, subdivision (a) provides, in relevant part:
"In any case in which a defendant is convicted of any of the offenses enumerated in Section 211 ..., the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed.... "A section 1202.5 fine can be imposed only once "[i]n any case." (People v. Crittle (2007) 154 Cal.App.4th 368, 371.)
The $10 obligation under section 1202.5 is subject to the following additional assessments, surcharge, and penalties:
(1) a $10 penalty assessment pursuant to section 1464, subdivision (a)(1);
(2) a $7 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1);
(3) a $2 penalty assessment pursuant to Government Code section 76000.5, subdivision (a)(1);
(4) a $2 state surcharge pursuant to section 1465.7, subdivision (a);
(5) a state court construction penalty of $5 or less pursuant to Government Code section 70372, subdivision (a)(1);
(6) a $1 DNA penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and
(7) a $1 DNA state-only penalty pursuant to Government Code section 76104.7, subdivision (a). (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530.) The section 1202.5 fine plus the added assessments, surcharges, and penalties total, at most, $38.
Although not argued by the parties, we note that in assessing the fines, penalty assessments and surcharges applicable here, the trial court may not impose fines pursuant to Government Code section 76000.5, subdivision (a)(1) (see item (3) above), which went into effect January 1, 2007 (Stats. 2006, ch. 841, § 1; Cal. Const., art. IV, § 8, subd. (c)(1)), and Government Code section 76104.7, subdivision (a) (see item (7) above) which went into effect July 12, 2006 (Stats. 2006, ch. 69, §§ 18, 41 [designating law urgency statute will take immediate effect], approved by Governor on July 12, 2006), because both fines became effective after appellants committed their offenses, and imposition of the fines would violate ex post facto principles. (See People v. High (2004) 119 Cal.App.4th 1192, 1198-1199; People v. Batman (2008) 159 Cal.App.4th 587, 590-591.)
We agree with appellants that, although not stated in the record, the $114 total appears to be $38 for each of the three robbery convictions rather than only for one.
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The abstract of judgment must "separately list, with the statutory basis, all fines, fees and penalties imposed." (People v. High, supra, 119 Cal.App.4th at p. 1201; see also People v. Eddards (2008) 162 Cal.App.4th 712, 717.) "Although ... a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts." (People v. High, supra, at p. 1200.)
Here the abstracts of judgment state only that appellants are to pay "$114 per PC 1202.5," and do not separately list the penalty assessments and surcharges, which are added to the $10 base fine imposed under section 1202.5, subdivision (a). The amount is unauthorized and, on remand, the trial court shall recalculate the fines and fees in accordance with this opinion and order an amended abstract to reflect these changes.
As for appellants' contention that the trial court violated the statute by failing to determine their ability to pay before levying the fine, we disagree.
Section 1202.5, subdivision (a) provides, in relevant part:
"If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution."In resolving this factual issue, no express finding of a defendant's ability or inability to pay is required. (§ 1202.5, subd. (a)); see People v. Martinez (1998) 65 Cal.App.4th 1511, 1516 [no express finding required for ability to pay mandatory drug program fee under Health & Saf. Code, § 11372.7, a substantially similar statute to § 1202.5].) Absent a showing to the contrary, we presume on the silent record the trial court was aware of and followed the applicable law. (See People v. Martinez, supra, at p. 1517 and cases cited therein; People v. Clark (1992) 7 Cal.App.4th 1041, 1050 [appellate court presumed on silent record the defendant was found to have ability to pay drug program fee].)
Here, at sentencing, the trial court stated that it realized appellants had been incarcerated for a period of years without income, but it had "no evidence regarding their financial situation ...." Because a trial court must determine the defendant's ability to pay a theft fine, which it did, but is not required to state its findings on the record, we conclude the trial court properly found appellants had the ability to pay the theft fine in this case. In any event, the issue is moot as the fine must be recalculated.
4. Abstract of Judgment
Appellants contend that the abstracts of judgment must be corrected to reflect the trial court's oral pronouncement of judgment in counts 5 and 6 regarding whether the sentences were concurrent or consecutive. Respondent agrees, as do we.
At sentencing, the trial court stated, inter alia, that count 5 "will run concurrent to [counts 1, 2, 3, and 7]." It also stated as to count 6:
"[Appellants] are sentenced to state prison as follows: They'll be sentenced to one-third the mid term. The mid term is six years; one-third of that is two. That's doubled for the (d) prior, a total of four years. [¶] On the enhancement for personal use of a firearm pursuant to ... Section 12022.5(a), each [appellant] will serve an additional and consecutive sentence of the mid term of four years. That's one year, four months. Total sentence on Count [6] is five years, four months."In other words, the court intended count 5 to run concurrent and count 6 to run consecutive to the base count. This is confirmed by the minute order which states, "The sentences for Counts 1, 2, 3, 5 and 7 shall be served concurrently; the sentences for Counts 4 and 6 shall be consecutive to those counts." But the abstracts of judgment for both appellants designate count 5 as running both concurrent and consecutive, and there is no designation as to how count 6 is run.
Where there are discrepancies between the oral and written judgment, the trial court's oral pronouncement controls over the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The abstracts of judgment must therefore be corrected to reflect that count 5 is to run concurrent and count 6 consecutive to the base count.
DISPOSITION
The judgment is modified to reduce the fine imposed pursuant to section 1202.5 to $10. The trial court shall recalculate the corresponding penalties and surcharges consistent with this opinion. The abstracts of judgment are ordered to reflect these changes and to conform to the trial court's oral pronouncement of judgment that count 5 is to run concurrent and count 6 is to run consecutive to the base count. Appellant need not be present for these modifications/corrections. (People v. Virgil (2011) 51 Cal.4th 1210, 1234-1235.)
As modified, the judgment is affirmed. The trial court is directed to send certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
DAWSON, J. WE CONCUR: GOMES, Acting P.J. DETJEN, J.