Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, Charles F. Haines, Judge. (Retired judge of the S.F. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6.) Super. Ct. No. RIF105940
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane Gillette and Gary W. Schons, Assistant Attorneys General, Gil Gonzalez and Tami F. Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Demarcus Rayshaun Hill challenges his convictions for attempted murder and carjacking. He contends insufficient evidence supports the attempted murder conviction and one of the carjacking convictions because they relied upon uncorroborated accomplice testimony. Next, he claims the court wrongly excluded his expert witness on eyewitness identification. Finally, he notes the court failed to impose joint and several liability on its restitution order and improperly imposed a life sentence for the attempted murder conviction. Only the sentencing claims have merit. We affirm the judgment of conviction, reverse the sentence, and remand for resentencing.
FACTS
Defendant was riding with Michael Adams, Shaundale Booker, and Donavan Jones in a car driven by Ahmad Booker on July 29, 2002. They were following a black Honda Civic they planned to steal. Ahmad Booker pulled in front of the Honda when it stopped. Jones and Adams got out of the car, Adams pointed a gun at the Honda, and ordered the driver and passenger to “[g]et the fuck out of the car.” Jones and Adams drove the Honda away, later meeting up with defendant and the others to take valuables from it. Defendant and Jones drove the Honda to San Bernardino, wiped off any fingerprints from it, and abandoned it.
A couple of weeks later, defendant was riding in a car with Adams, Jones, and Anthony Booker. They decided to steal a Toyota MR2. They pulled in front of the Toyota; Booker pointed a gun at the driver and ordered him to “[g]et out, nigga.” The driver tried unsuccessfully to grab the gun, then ran away. Booker shot the driver in the back.
Defendant was charged by information with the following crimes: count 1, the carjacking of the Honda driver (Pen. Code, § 215, subd. (a)); count 2, the carjacking of the Honda passenger (ibid.); count 3, the attempted premeditated murder of the Toyota driver (§§ 187, 664); and count 4, the carjacking of the Toyota driver (§ 215, subd. (a)). It also alleged defendant committed each offense for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that a principal personally used a firearm in each offense (§ 12022.53, subds. (b), (e)(1)).
All further statutory references are to the Penal Code.
Jones testified at trial about the carjackings. Ahmad Booker answered a few questions about the carjacking, but had “no comment” to most others. His prior testimony and statements to the police were read into the record as prior inconsistent statements. Anthony Booker and Shaundale Booker were declared unavailable. Their prior testimony was read into the record as admissible hearsay.
Before the prosecutor called the Honda driver to testify, he moved to exclude the defense’s expert witness on the unreliability of eyewitness identification, particularly cross-racial identification. The court heard argument, consulted case law, and granted the motion. It found the testimony would confuse the jury and consume an undue amount of time. It also noted defense counsel could cross-examine the driver on his identification and the jury would receive the standard instructions on evaluating eyewitness testimony.
Defense counsel noted, “the alleged perpetrators of this crime are all African-American whereas the individual making the identification is Hispanic.”
The Honda driver testified he had identified defendant as one of the carjackers from a photographic line-up shown to him by police. He also identified defendant in the courtroom as one of the carjackers. He conceded he had identified defendant from the photograph two months after the carjacking, and after he had made an incorrect identification in the case. He also conceded he had smoked marijuana just before the carjacking.
The jury found defendant guilty on each count, though it found the premeditation allegation in count 3 not true. It found the gang allegations true as to each count, and the firearm allegations true as to counts 3 and 4.
The court sentenced defendant to a total term of 30 years to life in state prison. It imposed a term of 15 years to life on count 1 and a concurrent term of 15 years to life on count 2. It imposed a term of 15 years to life on count 3 to run consecutively with the term imposed on count 1. Finally, it imposed a term of 15 years to life term on count 4 to run concurrently with the term imposed on count 3. It also ordered defendant to pay restitution of nearly $24,000 to the Honda driver and more than $8,000 to the Toyota driver.
DISCUSSION
Substantial Evidence Supports the Convictions Arising From the Toyota Carjacking
“‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) We “view the evidence in the light most favorable” to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Defendant contends the testimony of Jones and Anthony Booker cannot support his convictions on counts 3 and 4 (the attempted murder and carjacking of the Toyota driver) because they were accomplices to those offenses.
Accomplice testimony must be “corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” (§ 1111.) “To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.”’” (People v. Avila (2006) 38 Cal.4th 491, 562-563 (Avila).)
Under this liberal standard, the accomplice testimony was adequately corroborated by the testimony of Shaundale Booker. He testified he had told the police that defendant came to his home after the Toyota carjacking and looked “damn near scared or shocked.” Defendant went to the trash, took off his “brand-new shirt he [had] just bought” that day, and burned it. When Shaundale Booker asked defendant why he did that, defendant replied, “‘Man, we just did a carjacking, woo, woo, woo.’” This testimony “tends to implicate” defendant in the Toyota carjacking and attempted murder, and is therefore sufficient corroboration. (Avila, supra, 38 Cal.4th at p. 563.)
Defendant concedes Shaundale Booker was not an accomplice to the Toyota carjacking. Thus, he may corroborate the testimony of the accomplices to that offense. (See People v. Felton (2004) 122 Cal.App.4th 260, 273 [“section 1111, by its terms, is offense-specific”]; People v. Wynkoop (1958) 165 Cal.App.2d 540, 546 [accomplice to one charged burglary testified without corroboration as to other charged burglaries].) Yet defendant insists Shaundale Booker’s testimony should require its own corroboration because it was “tainted” and he was “certainly the closest thing to being” an accomplice to the Toyota carjacking. No persuasive authority supports extending the corroboration requirement from accomplices to any witness deemed “tainted.”
The Court Permissibly Excluded the Eyewitness Identification Expert
Defendant contends the trial court erred by not permitting him to present his eyewitness identification expert to controvert the identification of defendant by the Honda driver. But expert testimony on the reliability of eyewitness identification “will not often be needed,” the California Supreme Court has noted. (People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald), overruled on another ground by People v. Mendoza (2000) 23 Cal.4th 896, 914.) Whether to admit such testimony “remains primarily a matter within the trial court’s discretion.” (McDonald, at p. 377.)
It is error to exclude eyewitness identification expert testimony “[w]hen an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability.” (McDonald, supra, 37 Cal.3d at p. 377.) “In McDonald, no evidence linked the defendant to the crime, apart from eyewitness identification,” which itself was “equivocal.” (People v. Sanders (1995) 11 Cal.4th 475, 509 (Sanders).) In contrast, the Sanders court permissibly excluded the expert testimony when it “was not the only evidence linking the defendant to the crime.” (Ibid.)
The corroborating evidence may come from uncorroborated accomplice testimony. “It does not matter, for this purpose, that [the witnesses whose testimony corroborated the eyewitness] may have been accomplices whose testimony would require corroboration to support a conviction.” (People v. Jones (2003) 30 Cal.4th 1084, 1112.)
Here, other evidence implicated defendant in the Honda carjacking. Donavan Jones testified defendant helped plan the Honda carjacking and was in Ahmad Booker’s car during the carjacking. In his statement to the police, Ahmad Booker stated defendant was in his car while planning and carrying out the carjacking. In his prior testimony, Shaundale Booker denied defendant was in the car during the carjacking, but was impeached with prior inconsistent statements in which he stated defendant was in Ahmad Booker’s car during the carjacking. This evidence “substantially corroborate[s]” the Honda driver’s eyewitness identification and gives it “independent reliability.” (McDonald, supra, 37 Cal.3d at p. 377.) The court did not abuse its discretion by excluding the expert testimony. (Ibid.; Sanders, supra, 11 Cal.4th at p. 509.)
In any event, any error in excluding the expert testimony would be harmless. (Sanders, supra, 11 Cal.4th at p. 510.) The defense thoroughly explored the purported deficiencies in the identification while cross-examining the Honda driver, extracting concessions he had smoked marijuana before the carjacking, made an incorrect identification, and identified defendant two months after the carjacking. And the jury was instructed to evaluate the identification in light of considerations including “[h]ow much time passed between the event and the time when the witness identified the defendant,” “[d]id the witness ever fail to identify the defendant,” “[a]re the witness and the defendant of different races,” and “[w]ere there any... circumstances affecting the witness’s ability to make an accurate identification.” (CALCRIM No. 315.) Given the thorough cross-examination and jury instructions, no reasonable probability exists defendant would have received a more favorable result had the expert testimony been admitted. (Sanders, supra, 11 Cal.4th at p. 510; People v. Watson (1956) 46 Cal.2d 818, 836.)
The Court Erred in Sentencing
Defendant challenges the restitution order and the sentence on count 3, the attempted murder of the Toyota driver. Each claim has merit.
Defendant contends the court should have made defendant jointly and severally liable with the other perpetrators for the restitution to the Honda and Toyota drivers. The Attorney General responds that the court cannot impose joint and several liability when the other perpetrators have been tried and sentenced separately.
The parties do not dispute Jones, Adams, Shaundale Booker, and Ahmad Booker were convicted for the Honda carjacking and ordered to pay restitution. Nor do they dispute Jones, Adams, and Anthony Booker were convicted for the Toyota carjacking and ordered to pay restitution. This opinion does not affect their sentences.
But the court did just that in People v. Arnold (1994) 27 Cal.App.4th 1096, 1097, 1100. The court imposed joint and several restitution liability on codefendants tried together in People v. Madrana (1997) 55 Cal.App.4th 1044, 1051, but explained, “[D]efendants argue their case differs from Arnold because in that case Arnold and his codefendant were sentenced by different judges, whereas they were sentenced contemporaneously by the same judge. Suffice it to say, we find no authority, including Arnold, that gives any importance to whether codefendants are sentenced by the same judge at the same sentencing hearing. Such a distinction makes no sense and would lead to absurd results.” (Ibid.)
The restitution order may be fairly read as tacitly imposing joint and several liability on defendant for the very reason the other perpetrators have already been ordered to pay the same restitution. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) But “[t]o make sure this is clear (though out of an excess of caution),” and because the sentence must be reversed for another reason described below, the court is directed on remand “to provide expressly that the direct victim restitution ordered is joint and several.” (Ibid.)
Defendant and the Attorney General agree the court erred by imposing a term of 15 years to life on count 3, the attempted murder of the Toyota driver. The sentencing range for attempted nonpremeditated murder is five, seven, or nine years. (§ 664, subd. (a).) The sentence enhancement for the firearm allegation found true with respect to count 3 is 10 years. (§ 12022.53, subd. (b).) Thus, we must reverse the sentence and remand for proper sentencing. “It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence....” (People v. Calderon (1993) 20 Cal.App.4th 82, 88; accord People v. Burns (1984) 158 Cal.App.3d 1178, 1183-1184.)
DISPOSITION
The judgment of conviction is affirmed, the sentence is reversed, and the matter is remanded to the trial court for resentencing and with directions to provide expressly that defendant is jointly and severally liable to pay any ordered restitution.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.