Opinion
G052926
09-12-2017
THE PEOPLE, Plaintiff and Respondent, v. DONNIS JAMES GRIMES, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Heidi Salerno, and Alana Rachel Butler, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; CHANGE IN JUDGMENT
It is ordered that the opinion filed on September 12, 2017, be modified in the following particulars:
On page 2, the second full paragraph is deleted and replaced with the following:
"As we explain below, we agree insufficient evidence supports the jury's findings Grimes inflicted GBI, and that the abstracts of judgment must be corrected. We reverse the jury's true findings on the GBI enhancement as to counts 1, 2, 3, and 4, and order the abstracts of judgment corrected. In all other respects, we affirm the judgment and remand the matter."
On pages 10-11, section I.A. is deleted and replaced with the following: "A. Counts 1-4—Section 12022.7 Enhancement
Grimes argues insufficient evidence supports the jury's finding he inflicted GBI during the commission of counts 1, 2, 3, and 4. We agree.
Pursuant to section 12022.7, subdivision (a), "[T]he individual accused of inflicting [GBI] must be the person who directly acted to cause the injury." (People v. Cole (1982) 31 Cal.3d 568, 572 (Cole).) In Cole, supra, 31 Cal.3d at page 572, our Supreme Court held the phrase "personally inflicts" in section 12022.7 means what it says: "[T]he individual accused of inflicting [GBI] must be the person who directly acted to cause the injury."
In People v. Modiri (2006) 39 Cal.4th 481 (Modiri), our Supreme Court explained how to apply section 12022.7 when the injury is inflicted in the course of a group beating. The Modiri court held defendant need not act alone to have personally caused a victim's injuries. (Modiri, supra, 39 Cal.4th at p. 493.) A person may receive an enhanced sentence under section 12022.7 if the person "joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim's injuries cannot be measured or ascertained." (Modiri, supra, 39 Cal.4th at p. 495.) The personal-infliction finding can be made "if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others." (Id. at p. 497.) The personal infliction finding cannot stand when the defendant merely aided and abetted the person who directly inflicted the injury. (Id. at p. 485.)
Here, there was insufficient evidence Grimes personally inflicted GBI under the group beating theory because his actions demonstrated only that he aided and abetted Mitchell who inflicted the beating. Portrayed in the light most favorable to the judgment, the evidence established only that Grimes grabbed Ludwig and held him at knifepoint during the encounter. It was Mitchell who punched Ludwig a couple times in the face, not Grimes. This evidence proved Grimes aided and abetted Mitchell who inflicted the beating and was responsible for inflicting GBI. Pursuant to Cole and Modiri, this evidence was insufficient to sustain a true finding on the GBI enhancement as to counts 1, 2, 3, and 4, and those findings are stricken.
The Attorney General's reliance on People v. Dominick (1986) 182 Cal.App.3d 1174, 1210-1211, is misplaced as the evidence there demonstrated defendant's actions constituted more than aiding and abetting because he held the victim so she could be hit. Here, Grimes's actions did not rise to that level because the personal force he applied was not sufficient to produce the GBI. Thus, Grimes's conduct was insufficient to make him responsible for Mitchell hitting Ludwig, and we reverse the GBI enhancement as to counts 1, 2, 3, and 4."
Because we reverse the jury's findings on the GBI enhancements and remand the matter for the trial court to prepare amended abstracts of judgment, we need not address Grimes's related claim regarding the determinate abstract of judgment.
On pages 18-19, section VII is deleted.
On page 19, the second full paragraph is deleted and replaced with the following:
"We reverse the jury's true finding on the GBI enhancements as to counts 1, 2, 3, and 4. The clerk of the superior court is directed to prepare amended abstracts of judgment and to forward copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed."
The petition for rehearing is DENIED. This modification does effect a change in judgment.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.
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. (Super. Ct. No. 14NF0014) OPINION Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. (Retired judge of the Orange County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Heidi Salerno, and Alana Rachel Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Donnis James Grimes appeals from a judgment after a jury convicted him, and his co-defendant, Dejohn Lamont Mitchell, of kidnapping to commit robbery, carjacking, three counts of second degree robbery, two counts of assault with force likely to produce great bodily injury (GBI), and unlawful taking of a vehicle, and found true GBI allegations. In Grimes's appeal, he raises sufficiency of the evidence, instructional, constitutional, juror misconduct, and sentencing claims.
Mitchell's appeal is the subject of a separate proceeding (case No. G053043).
As we explain below, we agree insufficient evidence supports the jury's finding Grimes inflicted GBI during the commission of one of the second degree robberies and that the abstract of judgment must be corrected. We reverse the jury's true finding on the GBI enhancement as to count 3 and order the abstract of judgment corrected. In all other respects, we affirm the judgment and remand the matter.
FACTS
Alexis B. (Alexis) knew Grimes from junior high school. Alexis lived on South Valley Street in the City of Anaheim near Brookhurst Street and Ball Road, directly behind a Sizzler restaurant. Grimes was Alexis's neighbor. She began dating Mitchell after she met him online at MeetMe.com. Later, she learned Grimes and Mitchell were friends. December 10, 2013—John Pineda (Counts 9 & 10)
Pineda looked at "Ashley's" profile on MeetMe.com. Later, "Ashley" sent him a private message and during an online conversation, she asked if he wanted to meet her and he agreed. She told him to get $40 and meet her in Anaheim. He got $40 from the bank, drove to the designated meeting place in Anaheim, and waited for one hour, but she did not arrive.
Meanwhile, Mitchell and Alexis were texting each other. Mitchell told Alexis that if a man called from a specified number, to tell him that she would meet him. Alexis asked, "'WTF do I do if he asks me my name serous ppl aren't that stupid.'" Mitchell answered, "Ashley." Alexis replied, "'kk.'"
We quote the text messages with spelling and grammatical errors.
Alexis messaged Pineda as "Ashley" and told him to meet her at an address on South Valley Street near Sizzler at Brookhurst and Brookmore Avenue. When Pineda arrived at the location, he messaged Ashley. Pineda saw two men, Grimes and Mitchell, standing outside an apartment complex. Alexis messaged Pineda to turn off his engine and wait. Alexis texted Mitchell that Pineda had arrived. Alexis messaged Pineda to go inside the apartment complex.
Grimes and Mitchell approached Pineda, who sat in his car; one of the men had a gun and the other man had a detective's badge. Both men were black and in their mid-20's. The man with the gun wore a red baseball hat, red jacket, and black jeans—he appeared to be about six feet tall and weighed 175 pounds. The man with the badge wore a dark baseball hat, white T-shirt, and blue jeans—he appeared to be about six feet tall and weighed 150 pounds.
Pineda gave inconsistent statements to an officer and at trial about the perpetrators' heights. After the offense, Pineda excluded Grimes from the photographic lineup, and at trial, he was unable to identify him.
The man pointed the gun at Pineda's head and told him to get out of the car. Pineda got out of the car, kneeled down, and put his hands behind his head. The armed man told Pineda that they were undercover police officers, and the other man asked Pineda why he was there so late. One of the men went through the car and took his keys, driver's license, iPhone, and $40. When Pineda stood up, the man without the gun punched Pineda. The men fled. When Pineda yelled for help, someone called 911. December 29, 2013—Brian Avila (Counts 7 & 8)
A few weeks later, Avila met a woman on MeetMe.com, and they arranged to meet at her apartment on West Broadway in Anaheim between 2:00 a.m. to 3:00 a.m. At 1:45 a.m., Mitchell texted Alexis asking her to call Avila to tell him to meet her at a specific apartment number. Avila got out of his car and went to the apartment. Alexis texted Mitchell when Avila had arrived. When Avila could not find the girl he was supposed to meet, he walked back to his car. When Avila reached his car, Grimes and Mitchell approached him and demanded his money. Both men were black and in their mid-20s. One of the men was about six feet tall and slender—he wore a dark hoodie and black shorts. The other man was shorter and stockier—he wore a dark T-shirt and white shorts. Avila handed one of the men his wallet, and the man took $20 and his driver's license. The men also took his iPhone and car keys.
The men pulled Avila out of his car and beat him up. Both men punched him, and when he fell down, they kicked him until he blacked out. When he gained consciousness, Avila saw the men walking toward a gas station. Avila borrowed a cell phone and called 911.
Officers responded and obtained the surveillance video from the gas station. Officers showed the surveillance video, which depicted two black males, Grimes and Mitchell, walking through the gas station, and Avila identified them as the men who robbed and attacked him. December 31, 2013—Mark Ludwig (Counts 1-6)
Ludwig saw "Samantha's" profile on MeetMe.com and sent her a private message asking her to spend New Year's Eve with him. "Samantha" replied to meet her at an address in Anaheim. He requested a telephone number to ensure he was talking to a female. After she replied with a number, he called and when Alexis answered, Ludwig asked for Samantha, and Alexis said she was not Samantha and ended the call.
At some point, Mitchell texted Alexis and said, "'If someone call you tell em see you there. I got to do a pick up.'" Mitchell texted her again and said, "'Call that numb back and say come by.'"
During the testimony concerning the numerous messages, texts, and telephone calls, the court opined, "The record is not going to be real clear right now."
Ludwig sent Samantha another message, and she told him to call the same number. When he called, Samantha said her name was Alexis, and she agreed to meet him. Alexis agreed to meet Ludwig where Mitchell instructed her to tell Ludwig to go.
Mitchell texted Alexis and said, "'Txt him and ask where he at last time please.'" Alexis responded, "'He called a minute ago and said he on the freeway.'" Mitchell replied, "'Tell him to go to the apartments near Sizzler please.'" Alexis said, "'He is right there in Niobe Bee and Valley.'" Later, Alexis texted Mitchell, "'Man keep me out of whatever shit you got going. Whoever it is said the[y] will be there soon.'"
Ludwig, who drove his mother's car and shared a bank debit card with her, arrived, and he sent Alexis a message. She initially told him to wait there, which he did, but then gave him a new address. When he determined that address did not exist, he sent her another message. Alexis told him to meet her in a Sizzler parking lot. After he arrived and waited, she sent him a message to park at some nearby apartments, which he did.
Ludwig walked into the apartment complex corridor, but because it was very dark, he decided to return to his car. He saw someone and heard a shuffle. Grimes and Mitchell, who were both wearing gloves, ran toward Ludwig and grabbed him. Grimes was tall and muscular, and Mitchell was tall and slender.
Grimes held a knife to Ludwig's back. One man asked if he wanted to be stabbed, and the other man told him to "shut up." Both men demanded his money. When he began to say his wallet was in his back pocket, Mitchell punched him several times in the face, severely injuring his nose. One or both of the men threw him down near a tree. Grimes put his knee on Ludwig's back and held him at knifepoint while Mitchell went through his pockets, taking his phone, keys, and wallet, which contained his driver's license, money, and debit cards. The men asked him for the pin numbers to the debit cards, and he complied. After they told him to get up, Grimes held the knife to Ludwig's back and told him not to look at them as they walked him to Ludwig's car.
Mitchell got into the driver's seat. Grimes and Ludwig sat in the backseat, with Grimes holding him at knifepoint. Grimes told Ludwig they had a gun. He also told him to keep his head down, and not to look at them or out the window.
Mitchell drove to three or four banks but was unable to obtain any money. Ludwig used the mobile banking "app" on his cell phone to show Grimes and Mitchell that he had money. Mitchell drove onto the freeway and the men talked about taking Ludwig to Long Beach to kill him and dump his body. Ludwig begged them to take him to the hospital, and he promised not to report them. After Ludwig asked for water, Mitchell stopped at a convenience store and bought him water.
Grimes and Mitchell eventually agreed to take Ludwig to the hospital, and they made him promise to say a homeless person carjacked him or they would kill his family. Ludwig got out of the car, and Mitchell and Grimes drove away. After Ludwig walked to the hospital and reported the false story, the doctor repaired his nose, which had been separated in part from his face.
The Investigation
Later that day, the police found Ludwig's vehicle and conducted surveillance. After Grimes returned to the vehicle and started to drive away, police officers used their vehicles to stop him. Mitchell was reclined on the front passenger's seat; his knuckles were injured. Officers arrested both men. Officers found physical evidence in the vehicle implicating the men in the Avila robbery. Later, at the hospital, Ludwig identified Grimes from a photographic lineup, but he was unable to identify Mitchell because he did not look at him.
An officer interviewed Grimes but he could not recall what he did the previous day and said he got the car from a friend. Another officer interviewed Mitchell, and he eventually made incriminating oral and written statements.
Procedural History
An amended information charged Grimes, and Mitchell, with the following: Ludwig—kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1), all further statutory references are to the Penal Code unless otherwise indicated) (count 1); carjacking (§ 215, subd. (a)) (count 2); second degree robbery (§§ 211, 212.5, subd. (c)) (count 3); assault with force likely to produce GBI (§ 245, subd. (a)(4)) (count 4); unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 5); receiving stolen property (§ 496d, subd. (a)) (count 6); Avila—second degree robbery (§§ 211, 212.5, subd. (c)) (count 7); assault with force likely to produce GBI (§ 245, subd. (a)(4)) (count 8); and Pineda—second degree robbery (§§ 211, 212.5, subd. (c)) (count 9); assault with a firearm (§ 245, subd. (a)(2)) (count 10). The information alleged Grimes inflicted GBI (§ 12022.7, subd. (a)) as to counts 1, 2, 3, and 4, and that he was armed with a firearm (§ 12022, subd. (a)(1)) with respect to count 9.
During jury voir dire, defense counsel informed the trial court Grimes's aunt, Shirley M. (Shirley), claimed that the previous day she saw a prospective juror, later determined to be juror No. 10, lean over to another prospective juror and say, "'Those guys are guilty.'" Counsel said that after juror No. 10 was seated on the jury, Shirley told him what she had allegedly heard. The trial court permitted defense counsel to question Shirley and juror No. 10 without objection from the prosecution.
Shirley testified that during jury selection, juror No. 10 nudged the man next to him and said, "'They're guilty.'" The man did not respond. Juror No. 10 testified he did not say anything to the person sitting next to him. The trial court asked juror No. 10 whether he understood the presumption of innocence, and he answered he was not sure what that meant. The court explained the presumption of innocence, and juror No. 10 said he did not understand. Juror No. 10 also said he did not understand the burden of proof or reasonable doubt.
The trial court opined, "from a credibility standpoint, I think the court has to go with the juror." Defense counsel stated Shirley was sitting next to juror No. 10 when he allegedly made the comment, he was concerned with "poison[ing]" the other jurors, and he thought the court should excuse the juror. The court asked defense counsel if it was his position that there was juror misconduct and that the court should dismiss the juror. The court mused that because counsel had now explained Shirley was sitting next to juror No. 10, the "credibility issue . . . is more in favor of [Shirley.]" Mitchell's counsel added juror No. 10 seemed to fail to understand the presumption of innocence. The court agreed and opined juror No. 10 was "totally clueless" on the presumption of innocence. The court excused juror No. 10 and replaced him with an alternate. Grimes's defense counsel did not raise any additional issues on the juror misconduct matter.
In the jury's presence, the trial court told the jurors not to speculate why it had a conversation with one of the jurors and to disregard it. The court added, "I am sure you will follow the court's admonition and do your duty as you have been sworn to do."
At trial, the prosecutor offered Pineda's, Avila's, and Ludwig's testimony as described above. Grimes offered evidence that on the day of the Ludwig incident he was shopping and cooking chitlins with his father. He also offered evidence concerning the unreliability of eyewitness identifications.
As relevant here, the trial court instructed the jury with CALCRIM Nos. 362 and 3160. The court instructed the jury on the presumption of innocence and the prosecution's duty to prove charges beyond a reasonable doubt. (CALCRIM No. 220.)
The trial court instructed the jury with CALCRIM No. 362 as follows: "If a defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other defendant's guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
The trial court instructed the jury with CALCRIM No. 3160 as follows: "[GBI] means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] If you conclude that more than one person assaulted . . . Ludwig and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted [GBI] on . . . Ludwig if the People have proved that: [¶] 1. Two or more people, acting at the same time, assaulted . . . Ludwig and inflicted [GBI] on him; 2. The defendant personally used physical force on . . . Ludwig during the group assault; [¶] AND [¶] The physical force that the defendant used on . . . Ludwig was sufficient in combination with the force used by the others to cause . . . Ludwig to suffer [GBI]. [¶] The defendant must have applied substantial force to . . . Ludwig. If that force could not have caused or contributed to the [GBI], then it was not substantial. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." --------
The jury convicted Grimes of all but counts 6 and 10. The jury found true Grimes inflicted GBI as to counts 1, 2, 3, and 4, but not true that he was armed with a firearm with respect to count 9. The trial court sentenced Grimes to prison for an indeterminate term of life with the possibility of parole plus three years on count 1 plus a determinate term of three years on count 7 and one year on count 9. The court imposed a three-year concurrent term on count 3 and three years on the GBI enhancement, finding it was a separate act from count 2. The court imposed and stayed sentences on counts 2, 4, 5, and 8. The court ordered Grimes to serve the determinate sentence first. The abstract of judgment for the determinate term reflected the three-year term on the GBI enhancement accompanying count 3 was not stayed or struck.
DISCUSSION
I. Sufficiency of the Evidence
"'"'"[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'"' [Citation.] The standard is the same under the state and federal due process clauses. [Citation.] 'We presume "'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citation.]' [Citation.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) A. Count 3—Section 12022.7 Enhancement
Grimes argues insufficient evidence supports the jury's finding he inflicted GBI during the commission of count 3. We agree.
Pursuant to section 12022.7, subdivision (a), "[T]he individual accused of inflicting [GBI] must be the person who directly acted to cause the injury." (People v. Cole (1982) 31 Cal.3d 568, 572 (Cole).) In Cole, supra, 31 Cal.3d at page 572, our Supreme Court held the phrase "personally inflicts" in section 12022.7 means what it says: "[T]he individual accused of inflicting [GBI] must be the person who directly acted to cause the injury."
In People v. Modiri (2006) 39 Cal.4th 481 (Modiri), our Supreme Court explained how to apply section 12022.7 when the injury is inflicted in the course of a group beating. The Modiri court held defendant need not act alone to have personally caused a victim's injuries. (Modiri, supra, 39 Cal.4th at p. 493.) A person may receive an enhanced sentence under section 12022.7 if the person "joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim's injuries cannot be measured or ascertained." (Modiri, supra, 39 Cal.4th at p. 495.) The personal-infliction finding can be made "if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others." (Id. at p. 497.) The personal infliction finding cannot stand when the defendant merely aided and abetted the person who directly inflicted the injury. (Id. at p. 485.)
Here, there was insufficient evidence Grimes personally inflicted GBI under the group beating theory because his actions demonstrated only that he aided and abetted Mitchell who inflicted the beating. Portrayed in the light most favorable to the judgment, the evidence established only that Grimes grabbed Ludwig and held him at knifepoint during the encounter. It was Mitchell who punched Ludwig a couple times in the face, not Grimes. This evidence proved Grimes aided and abetted Mitchell who inflicted the beating and was responsible for inflicting GBI. Pursuant to Cole and Modiri, this evidence was insufficient to sustain a true finding on the GBI enhancement as to count 3.
The Attorney General's reliance on People v. Dominick (1986) 182 Cal.App.3d 1174, 1210-1211, is misplaced as the evidence there demonstrated defendant's actions constituted more than aiding and abetting because he held the victim so she could be hit. Here, Grimes's actions did not rise to that level because the personal force he applied was not sufficient to produce the GBI. Thus, Grimes's conduct was insufficient to make him responsible for Mitchell hitting Ludwig, and we reverse the GBI enhancement as to count 3. B. Count 9
Grimes contends insufficient evidence supports his conviction for count 9 because there is no evidence implicating him in the crime. He cites to Pineda's inconsistent descriptions, his inability to identify him in a photographic lineup immediately after the crime (he actually excluded him) or at trial, and the fact there was no physical evidence tying him to the robbery.
"Robbery is the 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." (§§ 211, 212.5, subd. (c).) Here, there was sufficient evidence Grimes robbed Pineda. The crime against Pineda progressed in the same manner as the subsequent crimes against Avila and Ludwig. All three men met a fictitious woman on MeetMe.com and were instructed to go to Anaheim near Alexis's and Grimes's homes. When each victim arrived near Grimes's home, Grimes and Mitchell robbed him of his cash, phone, and keys, and assaulted him. All three victims described the perpetrators the same way: black men, in their mid-to-late 20's, both tall with one being a bit taller and much skinner than the other. A similar modus operandi in separate crimes can provide sufficient circumstantial evidence to support a conviction. (People v. Prince (2007) 40 Cal.4th 1179, 1260; People v. Akins (1997) 56 Cal.App.4th 331, 337.)
The jury heard the evidence Pineda could not identify Grimes as the perpetrator, and in fact excluded him, and expert testimony concerning the unreliability of eyewitness identifications, and rejected Grimes's defense. We cannot reweigh that evidence and reach a contrary result. (People v. Brown (2014) 59 Cal.4th 86, 105-106.) There was sufficient evidence supporting Grimes conviction for count 9. II. Jury Instructions A. CALCRIM No. 3160
Grimes asserts the trial court erred by instructing the jury with CALCRIM No. 3160's group beating theory because there were no facts supporting the theory. The Attorney General argues Grimes forfeited appellate review of the issue because he did not object below and that it is meritless. Because Grimes raises a claim of ineffective assistance of counsel (IAC), we will address the issue on the merits. (People v. Marlow (2004) 34 Cal.4th 131, 150 (Marlow) [addressing merits of forfeited claim because defendant asserted IAC].) Grimes's claim is meritless.
"A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1206 (Cole).) However, "Trial courts are duty-bound to avoid instructions which are not justified by the facts of the case, since they have a natural tendency to overburden and confuse the jury. [Citations.]" (People v. Singleton (1987) 196 Cal.App.3d 488, 492.) "We review the trial court's decision de novo." (Cole, supra, 33 Cal.4th at p. 1206.)
As we explain above, there was evidence supporting the group beating theory. Ludwig testified "they," both Grimes and Mitchell, grabbed him, and Grimes held him at knifepoint just before Mitchell punched him. This was sufficient evidence to support instructing the jury on the group beating theory. Additionally, Grimes's constitutional rights were not implicated. CALCRIM No. 3160 did not lower the prosecution's burden of proof on the personal infliction element. To sustain a finding of personal infliction of GBI, the defendant must personally inflict, or contribute to the infliction of, GBI while participating in a group beating. (Modiri, supra, 39 Cal.4th at p. 499.) Thus, CALCRIM No. 3160 was proper, and Grimes's federal constitutional rights were not implicated. B. CALCRIM No. 362
Grimes argues CALCRIM No. 362 created an impermissible inference of guilt in violation of his due process rights. The Attorney General again asserts Grimes forfeited appellate review of the issue because he did not object and that it is meritless. Because Grimes raises an IAC claim, we will address the issue on the merits. (Marlow, supra, 34 Cal.4th at p. 150 [addressing merits of forfeited claim because defendant asserted IAC].) Grimes's claim is without merit.
In People v. Howard (2008) 42 Cal.4th 1000, 1021, the California Supreme Court rejected the contention CALCRIM No. 362, and its predecessor CALJIC No. 2.03, "invite the jury to draw irrational and impermissible inferences with regard to a defendant's state of mind at the time the offense was committed." We are bound to follow the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159, the court of appeal rejected the argument, the same argument Grimes makes here, that there is a meaningful difference between "'consciousness of guilt'" in CALJIC No. 2.52 and "'aware of his guilt'" in CALCRIM No. 372. We conclude the reasoned analysis is equally applicable to CALCRIM No. 362. Therefore, the trial court properly instructed the jury with CALCRIM No. 362. III. Section 209, Subdivision (b)
Relying on Johnson v. United States (2015) ___ U.S. ___ (Johnson), Grimes contends section 209, subdivision (b), is void for vagueness because it is impossible to determine the meaning of "'merely incidental to the commission of'" and "'increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.'" The Attorney General again asserts Grimes forfeited appellate review of the issue because he did not object below and that it is meritless. Because Grimes raises an IAC claim, we will address the issue on the merits. (Marlow, supra, 34 Cal.4th at p. 150 [addressing merits of forfeited claim because defendant asserted IAC].) Grimes' reliance on Johnson is misplaced, and section 209, subdivision (b), is not vague.
A statute is void for vagueness if persons of "common intelligence must necessarily guess as to its meaning and differ as to its applications." (People v. Hall (2017) 2 Cal.5th 494, 500.) The government must articulate its goals with clarity to ensure inter alia individuals conform their conduct to legal requirements and meaningful judicial review. (Ibid.)
Section 209, subdivision (b), prohibits kidnapping for robbery. Subdivision (b)(2), explains the provision only applies "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (See People v. Daniels (1969) 71 Cal.2d 1119, 1125 (Daniels).)
In Johnson, the issue was the Armed Career Criminal Act of 1984, which provided increased punishment for defendants convicted of being a felon in possession of a firearm if they have three previous convictions for a "violent felony." (Johnson, supra, 135 S.Ct. at p. 2555.) The statute defined "'violent felony'" as a felony that included certain specified elements, and enumerated some crimes. The statute also included a catch-all provision, known as the "residual clause," which defined as a violent felony any felony that "involves conduct that presents a serious potential risk of physical injury to another." (18 U.S.C. § 924(e)(2)(B).) The court concluded the residual clause violated the due process clause because the law was "so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. [Citation.]" (Johnson, supra, 135 S.Ct. at p. 2556.) The court reasoned there was "grave uncertainty" about how to estimate the risk posed by a crime in an imagined, ordinary case because it was unclear how to determine what kind of conduct is involved in an ordinary case of a crime. (Id. at p. 2557.) Additionally, the court explained the residual clause's "serious potential risk of physical injury" standard was "imprecise," and that imprecision left too much uncertainty about how much risk is necessary for a crime to qualify as a violent felony when the standard is applied not to "real-world facts" but rather to a "a judge-imagined abstraction." (Id. at p. 2558.)
Here, unlike the residual clause in Johnson, section 209, subdivision (b), is not concerned with a hypothetical "ordinary case" of kidnapping. Section 209, subdivision (b), requires juries and courts to apply a legal standard to real-world facts, the risk of harm based on actual movement. As the Johnson court stated, its holding did not place "in constitutional doubt" the "dozens of federal and state criminal laws that use terms like 'substantial risk,' 'grave risk,' and 'unreasonable risk.'" (Johnson, supra, 135 S.Ct. at p. 2561.)
Relying on numerous California court opinions that allegedly reach contradictory results, Grimes claims the lack of uniformity results in "guesswork." Again, Johnson disposes of this claim. In holding the residual clause vague, the Johnson court explained, "The most telling feature of the lower courts' decisions is not division about whether the residual clause covers this or that crime (even clear laws produce close cases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider." (Johnson, supra, 135 S.Ct. at p. 2560.) To the contrary, there is broad agreement in California case law on both the nature of the inquiry required and the relevant factors to evaluate when deciding whether the facts in a given case are sufficient to satisfy the asportation element of the aggravated kidnapping statute (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 [discussing factors]), and ordinary people can understand their meaning. As the Daniels court stated, "The law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as 'reasonable,' 'prudent,' 'necessary and proper,' 'substantial,' and the like," and "standards of this kind are not impermissively vague, provided their meaning can be objectively ascertained by reference to common experiences of mankind." (Daniels, supra, 71 Cal.2d at pp. 1128-1129.) Thus, Grimes's claim is meritless. IV. Juror Misconduct
Grimes asserts the trial court erred by "failing to conduct a more extensive evidentiary hearing" on the issue of whether there was juror misconduct. The Attorney General again asserts Grimes forfeited appellate review of the issue because he did not object below and that it is meritless. Because Grimes raises an IAC claim, we will address the issue on the merits. (Marlow, supra, 34 Cal.4th at p. 150 [addressing merits of forfeited claim because defendant asserted IAC].) Again, Grimes's claim is meritless.
"The trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [Citation.] Defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes an evidentiary hearing is 'necessary to resolve material, disputed issues of fact.' [Citation.] 'The hearing should not be used as a "fishing expedition" to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.' [Citations.]" (People v. Avila (2006) 38 Cal.4th 491, 604.)
Here, the trial court did not abuse its discretion by not conducting a more extensive evidentiary hearing. The court's comments at the hearing establish it was uncertain of the truth of Shirley's testimony, first believing juror No. 10 but later attributing some credibility to Shirley after learning she sat next to him. Ultimately, the court did not make an express finding on Shirley's credibility, and instead dismissed juror No. 10 because it was apparent he was unable to follow the court's instructions.
Assuming for the sake of argument the court found juror No. 10 did make the comment, it was a single, isolated comment before the jury had even been empaneled. It was not serious misconduct that warranted questioning of the entire venire. We are confident the comment, if made, could not have influenced anyone who may have heard it in light of the court's admonition and instructions. The court properly instructed the jury on the presumption of innocence. "'"It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions." [Citation.]' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 905.) And, the jury's verdicts demonstrate it carefully reviewed the evidence before delivering its verdicts, including acquittals on some counts. Therefore, the court had no duty to conduct a more extensive evidentiary hearing on the issue of alleged juror misconduct. V. Ineffective Assistance of Counsel
Grimes argues he received IAC if we conclude any of his claims are forfeited because trial counsel did not object. Because we have addressed and rejected all these claims, we need not address his IAC claim. VI. Section 654
Grimes contends the trial court erred by imposing a concurrent three-year term on count 3, robbery, because it was part of a continuing course of conduct with count 1, kidnapping to commit robbery. Again, we disagree.
Section 654 prohibits punishment for two offenses arising from the same act or a series of acts constituting an indivisible course of conduct. Divisibility depends on intents and objective—one objective may be punished once, and multiple objectives may be punished for each statutory violation. Thus, the issue in each case is whether defendant's criminal intent and objective were single or multiple, and this is determined based on all the circumstances, which we review for substantial evidence. (People v. Jackson (2016) 1 Cal.5th 269, 354.) A defendant may not be punished both for robbery and for kidnapping for the purpose of robbery, where both crimes were committed pursuant to a single intent and objective of robbing the victims. (People v. Lewis (2008) 43 Cal.4th 415, 519, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-921.)
Here, ample evidence supports the trial court's implied finding the robbery offense, count 3, was divisible from the kidnapping to commit robbery offense, count 1. The objective of count 3 was to rob Ludwig of what was in his possession, his wallet and phone. The objective of count 1 was to kidnap Ludwig and take him to the bank to rob him of additional money. The trial court did not abuse its discretion in determining section 654 did not apply to bar punishment for count 3. VII. Abstract of Judgment
Grimes asserts the determinate abstract of judgment incorrectly reflects a total sentence of seven years instead of a total sentence of four years. The Attorney General agrees.
When an abstract of judgment conflicts with the trial court's oral pronouncement of judgment, it is the court's oral pronouncement that prevails. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) We shall order a correction to the abstract of judgment. (Ibid.)
At the sentencing hearing, the trial court imposed a three-year concurrent term on the GBI enhancement accompanying count 3. The determinate abstract of judgment fails to note this, and it must be corrected.
DISPOSITION
We reverse the jury's true finding on the GBI enhancement as to count 3. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the trial court imposed a three-year concurrent term on the GBI enhancement accompanying count 3 and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.