Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC629072
ELIA, J.On November 15, 2006, the Santa Clara County District Attorney filed a third amended information charging defendants Donna Olsen (Olsen), Donald Bryant (Bryant) and Edward Anderson (Anderson) with two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1); count one, victim Robert Barnes, count two, victim Scott Harville.) As to Olsen, the information alleged that she had personally used a dangerous and deadly weapon in the commission of counts one and two. (§§ 667, 1192.7.) In addition, as to count one, the information alleged that Olsen had personally inflicted great bodily injury on victim Robert Barnes. (§§ 12022.7, subd. (a), 1203, subd. (e)(3).)
Unless noted, all statutory references are to the Penal Code.
As to count one, the information alleged that the deadly weapon was "a rope, rebar or metal." As to count two, the information alleged that the deadly weapon was "a rope." However, the personal use allegations in count one and two against Olsen alleged that it was a rope that she used.
On December 5, 2006, following approximately 12 days of testimony, the jury found Olsen and Bryant guilty on counts one and two. In addition, as to count two, the jury found the personal use allegation against Olsen to be true. However, the jury found the remaining personal use and personal infliction allegations against Olsen to be not true. The jury found Anderson not guilty on both counts.
On May 18, 2007, the court sentenced Olsen to five years in state prison consisting of the following. On count one, the court imposed the upper term of four years. On count two, the court imposed one-third the mid term (one year), to run consecutively to the term imposed on count one. The court imposed various fines and fees not relevant here. However, the court ordered that Olsen have no contact with the victims.
On July 20, 2007, the court sentenced Bryant to three years in state prison consisting of the following. On count one, the lower term of two years. On count two, one third the mid-term (one year), to run consecutively to count one. The court ordered that Bryant have no contact with the victims.
Olsen filed a timely notice of appeal on May 30, 2007. Bryant filed a timely notice of appeal on August 9, 2007.
On appeal, Olsen raises three issues, two of which are related. First, she contends that pursuant to People v. Sandoval (2007) 41 Cal.4th 825, remand for resentencing is required because the trial court's reasons do not support imposition of the upper term sentence on count one. Second, her sentence is unconstitutional under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856]. Third, this court should strike the no-contact order because the trial court had no statutory authority to issue such an order. The People concede the third issue as does this court. However, we disagree with Olsen's remaining contentions. Accordingly, as to Olsen we modify the judgment and affirm as modified.
Bryant raises five issues on appeal. First, he contends that the court erred in denying his motion for acquittal and the verdicts were unsupported by sufficient evidence. Second, the prosecutor committed misconduct by "falsely telling the jury" that Bryant said " 'I did it.' " Third, the trial court erred when it instructed the jury with CALCRIM 361. Fourth, the cumulative errors at trial deprived him of his constitutional right to a fair trial. Finally, Bryant joins in all arguments raised by Olsen that may accrue to his benefit. We find no merit in any of Bryant's contentions. However, since we find merit in Olsen's contention that this court should strike the no-contact order imposed at sentencing and because the court imposed the same order on Bryant, we will strike the no-contact order as to Bryant. Accordingly, as to Bryant we modify the judgment and affirm as modified.
Facts and Proceedings Below
The Prosecution Case
Robert Barnes
Robert Barnes (Barnes) lives on Loma Chiquita Road, which is located in the mountains above Los Gatos. Barnes owns Loma Chiquita Road with his neighbors, three of whom are the defendants in this case. Defendants Olsen and Anderson lived together.
To get to the Loma Chiquita Road, Santa Clara County Sheriff's Deputy Moser testified that he drove southbound on Highway 17, exited at Summit Road, followed Summit Road eastbound to Highland, followed Highland until it turned into Loma Prieta Road and then followed Loma Prieta until he turned right into Loma Chiquita.
Several years before the incident in this case, Barnes was present when Anderson and Bryant stopped a motorcyclist who was riding on Loma Chiquita Road. They told him to "turn around get the F out of here, this is a private road. You don't belong here."
On May 6, 2006, Barnes had plans to get together with several friends for a barbeque and dirt bike riding. The riders assembled at Barnes's residence some time after noon. They had a barbeque and rode their bikes over Barnes's property for several hours. Barnes testified that he ate a sausage and drank one or two 12-ounce beers between 3:30 and 4:00 p.m. At approximately 5:00 p.m., the riders left Barnes's residence to ride their dirt bikes. They "headed down" Loma Chiquita Road in the direction of Casa Loma Road. One of the men in the group, Mike Sadillo (Sadillo), injured his ankle just after the start of the ride. Another rider, Scott Harville, took Sadillo on the back of his bike to Sadillo's house, which was at the end of Loma Chiquita Road where it intersects with Casa Loma Road. On the way to Sadillo's house, the group passed Anderson's residence. According to Barnes, Anderson, Bryant and Olsen were standing in Anderson's driveway. Anderson and Bryant were throwing their hands in the air and yelling. Barnes knew the defendants, but he presumed they did not recognize him because he was wearing a helmet and protective gear. Barnes could not hear what they were saying, but they appeared to be upset.
Barnes testified that Bryant had never complained about him riding his bike up and down Loma Chiquita Road.
After taking Sadillo home, Barnes and his friends rode to the top of Mount Chuai. After about 30 or 40 minutes, the group decided to return to Barnes's house. They rode down the mountain at about 20-25 miles per hour with Barnes in the lead. Two of the group, Paul Harville and Shane Barclay broke away from the main group and took a different route down the mountain. Barnes and the remaining members of the group returned along Casa Loma to Loma Chiquita.
As Barnes approached the Anderson residence, he saw all three defendants. Barnes testified that Bryant was standing outside Anderson's gate, Anderson was standing just inside the open gate and Olsen was standing near him. As Barnes passed Anderson's gate he observed what he thought was "rebar" stretching across the road, supported "on Mr. Anderson's fence on one corner" and "onto a tree or something across the road." At the time, Barnes was standing as he rode his motorcycle. Barnes ducked to avoid the "rebar," but was struck on top of his mouth and was thrown from his bike. Barnes landed on top of his bike.
On cross-examination Barnes stated that it was from a distance of 300-400 yards before the Anderson's gate that he saw Anderson.
According to Barnes, rebar is a metal bar about half an inch in diameter. He thought the piece he hit was 20 feet in length.
Barnes realized that he had been seriously injured. Much of the flesh above his mouth was severely cut. His teeth and upper lip were "hanging down on [his] chin." His "whole cheek was ripped open" and he was bleeding profusely. When he looked up he saw Bryant staring at him and Anderson hurrying toward his house.
Within a few moments, Scott Harville arrived on the scene. Barnes saw him stop his bike immediately in front of a yellow rope stretched across the road. Barnes saw Olsen holding the rope at one end and the other end attached to a tree or telephone pole. Bryant was standing near by. Barnes saw Harville throw his bike down. After Harville "shoved" Bryant out of the way, Harville came towards Barnes and removed Barnes's helmet. As Harville shoved Bryant, Barnes heard Harville ask Bryant "What the fuck did you do?" Barnes heard Bryant reply, "That's what you get for riding motorcycles." Harville helped Barnes stand up. Then, Barnes heard Harville call to Anderson for help. Barnes saw Anderson walk over to the road from the direction of his house, but he did not say or do anything. None of the defendants offered any assistance to Barnes or asked Scott Harville if he was injured. Nor did any of them register any surprise about what had happened.
Barnes tried to ride his dirt bike home, but as he was going up Loma Chiquita Road Paul Harville arrived with his truck. Paul Harville took Barnes to Good Samaritan Hospital. After undergoing surgery, Barnes spent six days in hospital in an induced coma.
Mike Sadillo
Sadillo confirmed that he rode his bike up to Barnes's residence arriving some time between noon and 1:00 p.m. on May 6. As Sadillo was passing Anderson's residence he saw the defendants outside. Bryant was holding a beer. Sadillo waved and they nodded, "like Hi." Sadillo was traveling about 5-10 miles per hour.
Sadillo testified that the riders left Barnes's residence "later in the afternoon." After he was injured, he rode with Scott Harville. As they were passing Anderson's residence, Bryant "ran out to the road cursing" at them. When asked exactly what Bryant had said, Sadillo testified Bryant said, "Mother Fucker, Sons of Bitches, I'll get . . . ." Sadillo did not hear the end of the sentence. At this time, he was traveling at about five to 10 miles an hour.
Paul Harville
Paul Harville (Paul) testified that as the riders passed Anderson's house while taking Sadillo home, Anderson and Bryant ran toward the riders in a "hostile manner." Paul could not hear what they were saying because he had his helmet on.
In this section, we refer to Paul Harville by his first name not out of disrespect but to distinguish him from his brother Scott Harville. Similarly, later, we refer to Scott Harville by his first name for the same reason.
Paul confirmed that he drove Barnes to the hospital after he was injured. Scott, Paul's brother, showed up at the Barnes's residence just as it was getting dark. Scott was "real frantic" saying that Barnes had been injured and they needed to get to him as soon as possible. Paul "jumped" into his truck and "took off down the road." As soon as he saw Barnes he told him to get in his truck because "his face was ripped off." Paul grabbed a jacket and threw it on Barnes's lap to contain the blood coming from Barnes's face. On the way to the hospital Barnes told Paul that Anderson and Bryant "had a piece of rebar across the road that he hit."
Scott Harville
Scott testified that after Sadillo crashed he went on his bike with Paul, who was riding Sadillo's bike, to return Sadillo's bike to his house. Then, Scott returned with Paul on the back of his bike to where Sadillo had crashed. They rode at about 20-25 miles an hour on the way down and 15-20 miles an hour on the way back. Scott did not see anyone at the Anderson residence on the way down or back. However, as he was taking Sadillo on his bike with the rest of the riders ahead of him past the Anderson residence, he saw Bryant. According to Scott, Bryant was "running out to the road and yelling" at the riders "about racing on the road." Scott heard him say, "No racing."
On the journey back from Mount Chuai, Barnes was ahead of the other riders. As Scott approached Anderson's house, he saw what appeared to be "a bunch of junk in the middle of the road" and a man and a woman standing to the right. Scott recognized the man as Bryant. Bryant was holding a can of Budweiser beer and standing about two feet from the woman. When Scott was about 10 feet away from them, the woman ran into the middle of the road, picked up something and then ran back to the side of the road. Scott slowed down. As he reached Anderson's driveway, he saw a yellow rope tighten across the roadway. Scott testified that he thought the rope was secured to a telephone pole on the opposite side of the road to the Anderson residence. The woman Scott saw seemed to be wrapping the other end of the rope around a pole to his right.
Scott made contact with the rope when he was going less than one mile per hour, but the rope was tight across the road when he hit it. As Scott realized that the "junk" in the middle of the road was Barnes lying on top of his bike, he ripped the rope down and threw his bike on the ground. On his way to help Barnes, Scott ran up to Bryant and shoved him. At that time, Scott was "pretty sure that they had close lined [sic]" Barnes with the rope "like they did" with him. Scott asked Bryant "What is going on?" Bryant replied something about riders not being allowed to race or ride bikes up his road. According to Scott, Bryant did not say anything else.
When Scott reached Barnes he saw that Barnes's "whole face was bleeding and ripped down." Scott helped Barnes remove his helmet. That is when "all the blood started falling out." At that moment, Dana Barclay arrived and started talking to Barnes. Scott ran over to Bryant and tried to get some information from him as to what was going on. Bryant "didn't say anything and he just stood there." Scott ran towards Anderson's house yelling for him to come out. Anderson walked out from the house area with his two children. All he said was "I didn't do it." According to Scott, Anderson, Bryant and Olsen did not express any surprise or concern over what had happened to Barnes. Nor did they offer any assistance. Scott testified that they were "way too calm about everything that was going on." Scott got back on his bike and rode to Barnes's house. He told his brother Paul to drive to Anderson's house, pick up Barnes and take him straight to the hospital.
Dana Barclay
Dana Barclay was the last person from the group of riders to get to the Anderson residence. Barnes, Scott and Barclay's son Tyler were in front. As Barclay was coming up the road, Barclay saw Scott's bike was on the ground and Scott trying to get untangled from something across the road; Tyler's bike was standing or leaning against something; and someone was down on top of a bike. Beside the three riders, Barclay saw two Hispanic males who appeared to be leaving in a truck, Bryant and Olsen. Barclay asked what had happened. Tyler and Scott answered, almost in unison, "they booby trapped the road." When the dust cleared, Barclay saw a yellow rope tangled on the handlebars of Scott's bike. At the side of the road across from Anderson's gate, the rope was tied to either a pole or a tree. Olsen held the other end of the rope.
When Barclay saw Barnes with his helmet off, he saw that Barnes's face was "severely mangled." Barclay tried to calm Barnes and reassure him they were going to get help. Barclay talked to Olsen about what had happened to Barnes. Barclay asked Olsen "Why did you do this? How could you do this?" Olsen replied that she had a right to pull a rope across the road because she owned the road. Barclay confronted Bryant about what had happened to Barnes. Bryant said nothing.
A short time later, Barclay saw Anderson coming from the direction of his house. According to Barclay, Anderson appeared stunned over what had happened, but he did not show any concern for Barnes or offer assistance. Olsen looked "celebratory," as if she was "pleased with herself." At some point, Barclay saw Bryant standing next to Olsen. It appeared to Barclay that Bryant was instructing her to take down the rope. Barclay testified that he remembered that Bryant had "a smirk on his face and a Budweiser in his hand." Barclay saw Olsen untie the rope from "across the road." Barclay "vaguely" remembered the rope being taken to the yard by Olsen.
Melody Lynd
Melody Lynd is a plastic surgeon. On May 6, 2006, she was called to Good Samaritan Hospital. When she first arrived at the hospital, Barnes had been intubated. Other doctors had tried to "pack" his wounds. Barnes was actively bleeding from his facial wounds. After Barnes was taken to the operating room, Dr. Lynd cleaned his wounds. Barnes's right lip was "shredded" so badly that Dr. Lynd had difficulty finding its proper placement. The only way she could get "orientation was through his mustache. It was held on by a little bit of fragment tissue." The cuts went about three-quarters of the way to the muscles. Dr. Lynd testified that Barnes was "lucky" to have his lip.
In addition to the facial lacerations, Barnes's teeth were missing from the left upper side of his mouth, his palate was split and there were multiple fractures to his maxilla. Dr. Lynd used at least 200 stitches and four titanium plates to repair Barnes's facial injuries. Dr. Lynd opined that Barnes's injuries would have been fatal without medical intervention. At the time of trial, Barnes needed at least three additional surgeries to get "close to normal."
Dwayne Myers
In the spring of 2006, Dwayne Myers (Myers) lived in a loft above Anderson's garage. On May 6, 2006, Myers spent much of the afternoon and evening in the loft playing a video game. Some time in the afternoon, possibly between 3:00 and 4:00 p.m., Myers looked outside and saw Bryant drive into the Anderson's driveway. As Bryant got out of his car, three motorcycles rode past Anderson's house. One of the motorcycles had two riders. Bryant ran toward the road as fast as he could, shouting something that sounded like, "You goddamned sons of bitches, you get the fuck off my road, you're fucking trespassing."
Later, in the evening, Myers heard shouting from the road. He looked out of his window and saw a man in motorcycle gear yelling at a person inside Anderson's yard. It sounded like the man was saying something about "hiding evidence." A few minutes later, two people rammed motorcycles into Anderson's gate. A white pickup truck pushed open the gate. Myers tried to take a photograph through the window. Later, he went outside and took a photograph of the damaged gate. Myers let Anderson know that the gate had been rammed. Anderson asked him to print the photograph he had taken.
Myers recalled going into Anderson's house with the photograph. There were five or six other people in the house talking. Myers recalled Olsen saying something about "there's going to be hell to pay for this." Myers "got an understanding that there had been an incident out on the road," but he got the feeling that "nobody really wanted to say what was going on."
A few days after the incident, Myers learned that a length of rope strung across the road had injured Barnes. Myers knew that Anderson kept several spools of rope in his yard. He photographed them and turned one of the spools over to the police.
Wendy Barnes
Wendy Barnes testified that she and her husband had always had pleasant relations with the three defendants. Mrs. Barnes was present at the beginning of the barbeque on the afternoon of May 6, 2006. However, she left the house around mid-afternoon and returned around 7:00 p.m. When she returned home, Mrs. Barnes learned her husband had been seriously injured. Accordingly, she went to Good Samaritan Hospital. While her husband was in surgery, Mrs. Barnes phoned Anderson and asked what had happened. Initially, Anderson laughed, started a sentence and then the phone went dead. Mrs. Barnes tried calling back, but no one would answer her call.
Mrs. Barnes and her daughter stayed at the hospital through the night. The next morning, they went to Bryant's house around 8:00 or 9:00 a.m. They knocked on the front door, but no one answered. Around 10:30 a.m., Bryant walked out of the back of the house with a beer in his hand. Mrs. Barnes asked Bryant if he knew what had happened to her husband. Bryant looked at the ground and said, "I don't know, I didn't see anything; I heard a commotion, but . . . ." Bryant gave no other answers. Later, Bryant asked where he could send a card.
Other Evidence
The jury heard an audiotape of a telephone conversation between Anderson and Olsen made while Olsen was in custody. During the call, Olsen made a cryptic comment that she understood Anderson's tenant Dwayne Myers had started buying groceries at a new food store. Olsen said that if that were the case, she would "sing like a canary" and Anderson would "not like the tune." The prosecutor argued that Olsen's reference to Myers's new food store reflected Olsen's belief that Myers was cooperating with the police.
The Defense Case—Anderson
Anderson testified in his own defense that he was in the house asleep at the time of this incident. In addition, he presented two witnesses, Bill Eyrond and Dave Milton, who confirmed his alibi. Anderson stated that when Scott Harville confronted him, he told him that he did not do anything. At this time, the situation seemed hostile, so Anderson led his children back to the house. Before Anderson could get back outside to the road, the men stopped yelling and rode away.
According to Anderson, later that night, Wendy Barnes called him. Anderson told her he did not know what had happened to her husband because he was inside his house.
Chuck Allgood
Chuck Allgood testified that a few months after the incident he rode a dirt bike past Anderson's house with a video camera attached to his helmet. The video was played for the jury. Allgood said that the brush outside the house made it impossible to see people standing inside Anderson's gate from a distance of 300-400 yards.
The Defense Case—Bryant
Bryant testified in his own defense that on the afternoon of May 6, 2006, Anderson had invited him to dinner. Bryant accepted the invitation and arrived at Anderson's house around 5:40 p.m. As he parked his car, Bryant saw a group of motorcyclists "racing" down Loma Chiquita Road. Bryant "blurted out a stream of swear words at them and started walking toward the roadway." When he went into Anderson's house he told Anderson to keep his children off the road because it was dangerous.
Bryant ate dinner with Anderson, Olsen, their children, and Bill Eyrond. After dinner, Anderson fell asleep in his chair, so Bryant went outside. He heard a motorcycle ride past the house and then crash. He went to the gate and looked to his right onto the road and saw a "total cloud of dust." Another motorcyclist, Scott Harville, rode up from the other direction and stopped. Bryant saw a rope tighten across the roadway and become tangled on Scott's handlebars. Bryant did not look to see who was holding the rope because he did not take his eyes off Scott Harville. When asked on cross-examination why he did not look to his left to see from where "the rope popped up," Bryant testified, "I just didn't."
Scott got off his bike and shoved Bryant. Bryant saw another rider, Dana Barclay ride up. Barclay yelled at him, while Barclay's son, Tyler, yelled at Olsen. Bryant was fearful so he remained silent and backed away. At some point, Bryant did see Barnes's injuries, but he did not realize how serious they were. Bryant testified that he thought all Barnes had was "road rash." Barnes was "skinned up pretty good." However, although Bryant admitted that he was a volunteer firefighter, he did not rush to help Barnes because he was "not very good at medical type stuff" and he did not want to "go through three guys that were obviously very combative" to help Barnes.
On cross-examination Bryant admitted that he had a "slight amount" of medical training from the fire department. He knew how to fasten someone to a backboard, administer CPR, although he was not CPR certified, and clear an airway.
After the riders left, Bryant went into Anderson's house. Anderson asked what had happened and Bryant told him "Bob Barnes just crashed his motorcycle and I think he's hurt." Shortly, thereafter Myers informed Anderson that his front gate had been rammed. Myers brought in a photograph of the incident and that is when Olsen said, " 'There will be hell to pay for this.' "
Bryant went outside with Anderson for half an hour trying to fix the gate. When they went back inside, Anderson received a phone call. Anderson did not laugh, stutter or stammer during the conversation.
The next morning, Mrs. Barnes stopped by Bryant's house. They talked about the incident, but Bryant testified he could not tell her much because he did not see Barnes crash.
On cross-examination, Bryant denied saying anything to the effect that he had strung up the rope "because dirt bikes are not allowed on the road." Bryant acknowledged that he had been standing just three or four yards from the rope when it tightened in front of Scott Harville's bike, but he insisted that he did not notice who was tightening the rope.
Bryant introduced records from Good Samaritan Hospital showing that Barnes's blood-alcohol level was 0.026 percent at 9:17 p.m. on May 6, 2006. An expert testified that one alcoholic beverage, for example 12 ounces of beer, increases a person's blood alcohol level by about 0.02 percent. Further, the body requires about an hour to absorb that much alcohol. Accordingly, the expert concluded that Barnes must have had a blood-alcohol level of around 0.06 percent at the time of the crash, reflecting the consumption of three and a half drinks within the hour before the crash.
Bryant called Santa Clara County Sheriff's Sergeant Dean Baker to testify. Sergeant Baker testified that he interviewed Barnes on May 15, 2006. In describing the incident, Barnes said he had struck a piece of rebar and had flown 20 to 30 feet forward. Sergeant Baker found Barnes's version of events questionable for two reasons. First, Sergeant Baker thought it unlikely Barnes would have flown so far forward if he had been struck in the face by a solid piece of metal. Second, although a number of witnesses saw a rope stretched across the road immediately after the incident, no one saw a piece of rebar, nor was there any evidence that a piece of metal had been attached to either side of the road.
When cross-examined by the prosecutor, Sergeant Baker testified that he had never heard of Bill Eyrond until the week before trial. Sergeant Baker tried to speak with Eyrond before he testified, but Eyrond refused to speak to him.
Olsen did not present any evidence in her defense.
Discussion
Olsen's Contentions
In sentencing Olsen on count one, the court imposed the upper term because "the defendant was on probation during the offense, the prior performance of the defendant on probation was unsatisfactory. The seriousness of the offense and the violent nature of the offense. Under Cunningham, the Court is also choosing the upper term because the defendant suffered prior felony convictions."
The probation report lists two prior felony convictions.
Olsen contends that pursuant to People v. Sandoval, supra,41 Cal.4th 825 (Sandoval), remand for resentencing is required because the trial court's reasons do not support imposition of the upper term sentence on count one. In essence, Olsen argues that her upper term sentence is unconstitutional in light of Sandoval because a jury did not find the sentencing factors true beyond a reasonable doubt.
In Sandoval, a jury convicted the defendant of two counts of voluntary manslaughter and one count of attempted voluntary manslaughter. The trial court imposed the upper term for one of the counts of voluntary manslaughter and consecutive terms on the other two counts. (Sandoval, supra, 41 Cal.4th at p. 832.) In imposing the upper term, the trial court found the following factors in aggravation: "(1) the crime involved a great amount of violence; (2) defendant engaged in callous behavior; (3) defendant lacked any concern regarding the consequences of her actions; (4) the victims were particularly vulnerable because they were unarmed, inebriated, and ambushed from behind; (5) defendant was the 'motivating force' behind the crimes; and (6) defendant's actions reflected planning and premeditation." (Id. at p. 841.) The California Supreme Court concluded that none of the factors fell within the Blakely exceptions. (Id. at pp. 837-838.) Although the factors were based upon the evidence adduced at trial, Sandoval noted that the factors "were not part of the charge and were not directly at issue in the trial" and that the defendant had no reason or opportunity "during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense." (Id. at p. 839.) Furthermore, the Sandoval court noted that "a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury" and further that "it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Id. at p. 840.) Accordingly, the Sandoval court could not find the Cunningham error harmless, reversed the upper term sentence imposed for the one count of voluntary manslaughter and remanded for resentencing "in a manner consistent with the amendments to the DSL [Determinate Sentencing Law] adopted by the Legislature." (Id. at pp. 832, 843, 846, 858.)
In Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348] (Apprendi), the United States Supreme Court held unconstitutional a law that permitted an enhancement that could have resulted in potentially double the maximum sentence for possession of a firearm in the event that the judge determined by a preponderance of the evidence that a hate crime had been committed. The Supreme Court concluded that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.)
Thereafter, in Blakely v. Washington, supra, 542 U.S. 296, the United States Supreme Court considered Washington's determinate sentencing laws under which the trial court had determined that the defendant "had acted with 'deliberate cruelty.' " (Id. at p. 298.) The Washington court had "imposed an exceptional sentence of 90 months—37 months beyond the standard maximum." (Id. at p. 300.) The United States Supreme Court concluded that the statute was unconstitutional, declaring, "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Id. at pp. 303-304.) The judge had relied on a fact not found by the jury or admitted by the defendant. Accordingly the Supreme Court concluded that the sentence in Blakely was invalid. (Id. at p. 304; see also United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738] (Booker) [Blakely holding found applicable to Federal Sentencing Guidelines].)
Thereafter, the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238 (Black I). Black I held that that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Id. at p. 1244.)
Subsequently, Black I was abrogated by the United States Supreme Court in Cunningham v. California, supra, 549 U.S. 270 (Cunningham).
In Cunningham, the United States Supreme Court declared: "[T]he Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Id. at p. ___ [127 S.Ct. at p. 860].) In regard to California's determinate sentencing law (DSL), the court stated: "Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . ., the DSL violates Apprendi's bright-line rule: Except for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Id. at p. ___ [127 S.Ct. at p. 868 ].) The United States Supreme Court held: "Contrary to the Black court's holding, our decisions from Apprendi to Booker point to the middle term specified in California's statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Id. at p. ___ [127 S.Ct. at p. 871], fn. omitted.)
Nevertheless, in People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court held that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.)
The Black II court declared: "Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 . . . .) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.' " (Black II, supra, 41 Cal.4th at p. 813, fn. omitted.) Accordingly, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Id. at p. 812.)
As a result, Olsen's argument must fail in light of the trial court's reliance on the fact that Olsen has prior convictions. Under a Black II analysis, this one fact rendered defendant eligible for an upper term sentence.
Alternatively, Olsen argues that Black II and Sandoval were wrongly decided. That is, her sentence is unconstitutional under Blakely and Cunningham. However, Black II and Sandoval bind this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)
Consequently, we must reject Olsen's challenge to her upper term sentence.
The No-Contact Order
In sentencing Olsen, the trial court ordered that Olsen have no contact with the victims for an unspecified period of time. Citing People v. Stone (2004) 123 Cal.App.4th 153, Olsen contends that this court should strike the order. As noted, the People concede this issue. We agree. Accordingly, we strike the no-contact order.
Both Olsen and the People assume that the order was issued pursuant to section 136.2. Under section 136.2, a trial court with jurisdiction over a criminal matter may order a defendant to have no contact with the victim. In People v. Stone, supra, 123 Cal.App.4th 153 (Stone), the trial court issued a protective order during the trial barring the defendant from contacting his victims. The protective order was set to expire well beyond the date of trial. (Id.at p. 158.) Subsequently, a jury found the defendant guilty and the court sentenced him to state prison. (Id.at pp. 155-156.)
Numerous other statutes allow a trial court to order that a defendant have no contact with a victim and/or a victim's family. For example, section 646.9, subdivision (k) [restraining order re stalker]; section 1202.5 [no contact with minor victim of sex offense]; section 5054.2 [same].
On appeal, the defendant argued that the protective order was an unauthorized sentence. (Stone, supra,123 Cal.App.4th at p. 158.) Division Two of the Second District Court of Appeal agreed, noting, "[a]lthough section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal action in which they are issued or to probation conditions, it is properly so construed." (Id. at p. 159.)
Accordingly, the court held that protective orders issued pursuant to section 136.2 are limited to the duration of "the criminal proceeding in which the restraining order is issued." (Stone, supra,123 Cal.App.4th at p. 159.) In support of this conclusion, the court determined that the "only purpose of [section 136.2] is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued." (Ibid.) Furthermore, the court reasoned, "the absence of any express time limitation on the duration of a restraining order issued under section 136.2 suggests that its duration is limited by the purposes it seeks to accomplish in the criminal proceeding." (Ibid.)
Furthermore, Stone noted that orders without time durations would usurp restraining orders obtainable under Code of Civil Procedure section 527.6. An order of three years duration was found to be reversible. (123 Cal.App.4th at pp. 159-160.) The duration of the court's order here is indefinite.
Moreover, the Stone court found that the absence of evidence to support the order was equally fatal. The fact that Stone had assaulted the victims was insufficient, by itself, to justify the orders. (Stone, supra, 123 Cal.App.4th at pp. 160-161.)
We agree with Stone that the protective order is operative only during the pendency of the criminal proceeding and as a prejudgment order. Since the court sentenced Olsen to state prison rather than granting probation, the trial court did not have the authority to impose the protective order beyond the pendency of the proceedings in this case. Therefore, we are compelled to strike the no-contact order in the judgment.
Bryant's Contentions
Motion for Acquittal
At the close of the prosecution's case-in-chief, Bryant moved for a judgment of acquittal on both counts. The court denied the motion. Bryant contends that this was error on the part of the trial court because at this time the evidence was insufficient under section 1118.1 and the due process clause of the Fourteenth Amendment to the United States Constitution and article I, section 15 of the California Constitution. In addition, at the close of all the evidence, the evidence remained insufficient under the due process clause of the Fourteenth Amendment to the United States Constitution and article I, section 15 of the California Constitution.
Section 1118.1 provides: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
After the verdicts were rendered, Bryant moved for a new trial on the grounds of ineffective assistance of trial counsel and insufficient evidence to support the verdict. The trial court denied the motion.
"[I]n reviewing a challenge to the sufficiency of the evidence, we review the entire record in a light most favorable to the judgment to determine whether it discloses substantial evidence." (People v. Cole (2004) 33 Cal.4th 1158, 1224.) "Moreover, in ruling upon a motion for judgment of acquittal under section 1118.1, a trial court applies the same standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction. [Citation.]" (Ibid.) That is, "to determine whether from the evidence then in the record, including reasonable inferences to be drawn therefrom, there is substantial evidence of the existence of every element of the offense charged. [Citations.]" (People v. Coffman (2004) 34 Cal.4th 1, 89.)
Bryant argues that he was present in the vicinity when Olsen pulled a rope across the road in front of Scott Harville. Nonetheless, no one ever saw him with the rope or rebar. Barnes, the only person who claimed to see any rebar, testified that it rested on objects on either side of the road. Accordingly, Bryant contends that is likely the jury held him responsible on the theory that he aided and abetted Olsen. However, there was no evidence that he ever encouraged Olsen or assisted her in any way.
Initially, we note that we are not convinced that the jury convicted Bryant on count one on the theory that he aided and abetted Olsen. As noted, all three defendants were charged with two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. Olsen was the only defendant alleged to have personally used a deadly weapon in both counts and to have personally inflicted great bodily injury on Barnes (count one). The jury found Anderson not guilty on both counts; Bryant guilty on both counts; and Olsen guilty on both counts, but found the allegations that she personally used a deadly and dangerous weapon in the commission of count one and personally injured Barnes to be not true. The evidence adduced at trial shows that there were only two people who were in the vicinity of the rope when Barnes hit it—Bryant and Olsen.
We note that there is no dispute that Barnes was injured by something that was placed across the road. After reading the entire record, this court is persuaded that what Barnes hit was the same rope that Scott Harville hit. Bryant's attorney acknowledged in closing argument "there was a perpetrator who committed the crime." Further, as to his client, Bryant, there are "only two ways he could violate the law. Either he did it himself, he took the rope and held it in his hand and pulled the rope that injured Mr. Barnes and that almost injured Mr. Harville and there is no evidence of that or he aided and abetted whoever it was that pulled the rope."
Barnes testified that as he approached the Anderson residence, he saw all three defendants. Bryant was standing outside Anderson's gate, Anderson was standing just inside the open gate and Olsen was standing near him.
A person personally uses a deadly or dangerous weapon if he or she intentionally causes someone to be hit by the weapon. (CALCRIM No. 3145.) Accordingly, if the jury had concluded that Olsen set up the rope, but was not holding it at the time Barnes hit the rope, they could still have found true the personal use allegation. Since the jury found that Olsen did not personally use the rope, and found Anderson not guilty, necessarily, at least some of the jurors must have concluded that Bryant was the person that pulled or set up the rope that Barnes hit.
A person personally uses a deadly or dangerous weapon if he or she intentionally causes someone to be hit by the weapon. (CALCRIM No. 3145.) Accordingly, if the jury had concluded that Olsen set up the rope, but was not holding it at the time Barnes hit the rope, they could still have found true the personal use allegation.
Nevertheless, whether the jurors convicted Bryant on the theory that he set up the rope that Barnes hit or that he aided and abetted Olsen, we find the evidence sufficient to support the convictions on either theory.
Several years before this incident, Barnes had heard Bryant and Anderson shout at a motorcyclist for riding on their private road. At least four witnesses, Barnes, Scott Harville, Sadillo and Myers, testified that when Barnes and his friends rode past Anderson's house a few hours before the incident, Bryant ran at them angrily, shaking his fist and shouting obscenities. Barnes saw Bryant and Olsen standing within a few feet of where the rope was positioned immediately before the incident. Scott Harville saw Olsen and Bryant standing close together at the right side of the road just before Olsen ran out and picked up something from the road. Seconds later, Scott Harville narrowly avoided hitting the rope as he was riding his bike at a low speed. Both Barnes and Scott Harville testified that neither Bryant nor Olsen showed any surprise or concern over Barnes's injuries. Furthermore, when Harville accused Bryant of having something to do with Barnes's injuries, Bryant offered a justification for what had happened.
Anderson acknowledged that one incident with a bicyclist had happened, but claimed that he spoke calmly with the bicyclist.
Relying on In re Jose T. (1991) 230 Cal.App.3d 1455, 1460, Bryant argues that neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Further, relying on People v. Hymer (1953) 118 Cal.App.2d 28, 32, Bryant argues that to be an aider and abettor he must have been present for the purpose of assisting in its consummation.
In In re Jose T., supra, 230 Cal.App.3d 1455, the juvenile court sustained a petition as to attempted murder and robbery. (Id. at p. 1458.) Jose T. was a member of a street gang. While he was with other gang members, Jose T. saw a man get into a car and one of the other gang members give another member a gun. After the man entered the car, the armed gang member stood next to the driver's window, and Jose T. stood beside the passenger's window. After a five-minute interchange, during which the armed gang member pointed the gun at the man, the armed gang member forced the man out of his car, and the armed gang member and Jose T. got in the car and drove off. Later that day, Jose T. gave the keys to another gang member who drove off with two other gang members, one of whom shot and killed a member of a rival gang. Eight hours after originally driving off with the armed gang member, Jose T. drove the car by another rival gang member and the killer gang member shot at the rival five or six times, hitting him in the arm. (Id. at pp. 1458-1460.) On appeal, Jose T. contended that there was insufficient evidence that he aided and abetted the robbery. (Id. at p. 1460.) The Court of Appeal found the evidence sufficient to support the sustaining of the juvenile petition. The evidence established that Jose T. was not merely present at the crime but acted with the requisite knowledge of criminal purpose and intent, and, as an aider and abettor, acted in facilitating the robbery of the man driving the car. (Id. at p. 1461.)
The relevant inquiry on appeal is whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781]; People v. Hatch (2000) 22 Cal.4th 260, 272.) Given the evidence in this case, a rational jury could have concluded that Bryant erected the rope himself or helped or encouraged Olsen so to do.
Bryant was not a mere bystander or onlooker. He may have committed no overt act that was seen by any of the riders, but none was needed. He was with Olsen when she pulled up the rope in front of Scott Harville; he demonstrated that he did not like motorcyclists riding on his road; he offered a justification for what had happened to Barnes; and showed no surprise or concern when he saw Barnes's injuries or saw Scott Harville contact the rope.
" 'The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting; and it has also been held that presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred. [Citations.]' " (People v. Moore (1953) 120 Cal.App.2d 303, 306.)
Accordingly, when we consider the evidence as a whole we find the evidence sufficient to support Bryant's convictions. For that reason, the trial court did not err in denying Bryant's motion for acquittal.
Prosecutorial Misconduct
During argument to the jury, the prosecutor told the jurors, "Don Bryant besides his statement, the first pass around for those cyclists, was confronted by Scott Harville who asked 'why did you hurt Bob?' [¶] And his statement was, this is what he said: 'I did it because no dirt bikes are allowed on this road.' It doesn't get any more clearer [sic] than that. An accusation is levied at him and he answers, he affirms that he did this and he gives a reason why." Defense counsel did not object to the prosecutor's comment.
Bryant contends that by falsely telling the jury that he said, "I did it," the prosecutor committed misconduct and violated his due process rights. Further, the issue is not forfeited because either an objection would have been futile or counsel was ineffective in failing to object.
A prosecutor's misconduct violates the Fourteenth Amendment to the federal Constitution when it "infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) To put it another way, to succeed on a claim of prosecutorial misconduct, Bryant must show that "the prosecutor's conduct infected the trial with such unfairness as to make the conviction a denial of due process, or that, in violation of state law, the prosecutor used deceptive or reprehensible methods to persuade the jury." (People v. Harrison (2005) 35 Cal.4th 208, 257.)
In essence, Bryant's argument is that the prosecutor fabricated evidence by telling the jury that Bryant said, "I did it."
"While counsel is accorded 'great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence [citation],' counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation]." (People v. Valdez (2004) 32 Cal.4th 73, 133-134.) Nevertheless, prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Lucas (1995) 12 Cal.4th 415, 473.) "Whether the inferences the prosecutor draws are reasonable is for the jury to decide." (People v. Dennis (1998) 17 Cal.4th 468, 522.)
Here, the prosecutor merely suggested an inference that the jury could reasonably draw from the evidence. In response to Scott Harville's question to Bryant about what was going on, Barnes heard Bryant reply, "That's what you get for riding motorcycles." Scott Harville heard Bryant say something about riders not being allowed to race bikes up his road. At this point, according to Bryant's own testimony he had heard a motorcycle ride past the house and crash, and had seen a rope tighten across the road. Accordingly, in response to a question that was either an accusation ("What the fuck did you do?") or an inquiry ("What is going on?"), Bryant's reply that motorcycles were not allowed to race or ride up the road sounded like justification for his actions or the actions of others. Someone who justifies what has happened effectively admits or supports the underlying conduct. In other words, a reasonable inference to be drawn from someone's justification for an action is "I did it" or "I support what was done."
Thus, the prosecutor was entitled to argue that Bryant's statement—"That's what you get for riding motorcycles" or even "you are not allowed to race on my road" could be understood as an implied admission of guilt.
Furthermore, repeatedly, the trial court instructed the jurors that the arguments of counsel did not constitute evidence. In light of the presumption that jurors follow the instructions given to them (People v. Osband, supra, 13 Cal.4th at p. 714) we do not find it plausible that the jury would have interpreted the prosecutor's argument to be anything other than an attempt to suggest an inference that the jury could reasonably draw from the evidence. Accordingly, we do not find any prosecutorial misconduct.
The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions. (Francis v. Franklin (1985) 471 U.S. 307, 325, fn. 9 [105 S.Ct. 1965].)
Instructional Error
Over Bryant's objection, the trial court instructed the jury pursuant to CALCRIM No. 361 as follows: "If a defendant failed in his or her testimony to explain or deny evidence against him or her, and if he or she could reasonably be expected to have done so based on what he or she knew, you may consider his or her failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. If the defendant failed to explain or deny, it's up to you to decide the meaning and importance of that failure."
In putting counsels' discussion of jury instructions on the record, the court noted the following. "361, failure to explain or deny adverse testimony. Mr. Lempert [Bryant's counsel] . . . said it did not apply because everything was explained. The People said, well, I think they didn't explain it to the point where this instruction should be given. The Court said that's an issue for the jury to decide. So that was given."
Bryant argues that it was error for the trial court to give this instruction because there was no evidence against him that he failed to explain or deny. We disagree. Bryant testified to being out on the road when he saw the rope tighten across the roadway and become tangled on Scott's handlebars. Bryant's testimony was that a cloud of dust was out on the road to his right. When he heard other motorcycles approaching, Bryant turned away from the crash and looked the other way. Bryant was able to see the rope become tangled on Scott's handlebars. Nevertheless, he failed to explain why he did not look to his left to see who was tightening the rope. In fact, Bryant testified that the rope had to have been pulled up from a position to his left. When questioned by the prosecutor why he did not look, he did not testify that there was something that would have prevented him from seeing how the rope was being tightened. Under these circumstances, Bryant could reasonably be expected to look to see how the rope was tightened across the road.
Bryant argues that given the rapidity of the events, it is not implausible that he did not perceive who pulled the rope. Bryant misses the point. The question is not why did he not perceive who was tightening the rope. Rather the question is why did he not look. Bryant's only explanation as to why he did not look to his left was, "I just didn't." Thus, Bryant's tendered explanation is really no explanation at all. Thus, " 'the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge was a credibility question for resolution by the jury [citations].' " (People v. Belmontes (1988) 45 Cal.3d 744, 784.)
In People v. Belmontes, supra, 45 Cal.3d 744, the trial court instructed the jury with CALJIC No. 2.62. (Id. at p. 783.) CALJIC No. 2.62 is the predecessor statute to CALCRIM 361. CALJIC No. 2.62 was found to be proper when a defendant " 'tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible' " such that it could be deemed a failure to explain or deny. (People v. Belmontes, supra, at p. 784.)
Accordingly, because Bryant failed to explain why he did not look to see who was tightening the rope, the trial court properly instructed the jury with CALCRIM No. 361.
Cumulative Error
Bryant argues that the trial court's errors, combined with the prosecutor's misconduct and defense counsel's errors and omissions, cumulatively deprived him of his constitutional right to due process under the law and compel reversal of his conviction. Errors that are individually harmless may, under the "cumulative error" doctrine, have a cumulative effect that is prejudicial. (Delzell v. Day (1950) 36 Cal.2d 349, 351; Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 180.) Since we have found no error with respect to Bryant's claims, the cumulative error doctrine does not apply.
Finally, Bryant joins in all arguments raised by Olsen that may accrue to his benefit. The only argument that accrues to Bryant's benefit concerns the no-contact order. As a result, we turn to that issue now.
No-Contact Order
Similar to Olsen, in sentencing Bryant, the trial court ordered that he have no contact with the victims for an unspecified period of time. For the same reasons that we strike the no-contact order in Olsen's case, we strike the no-contact order as it pertains to Bryant.
Disposition
As to Olsen, we modify the judgment to strike the no-contact order. As so modified, the judgment is affirmed. As to Bryant, we modify the judgment to strike the no-contact order. As so modified, the judgment is affirmed. The trial court is directed to correct the abstracts of judgment and forward copies to the Department of Corrections.
WE CONCUR: RUSHING, P. J., PREMO, J.
In People v. Hymer, supra, 118 Cal.App.2d 28, the Z.M.R. Manufacturing Company, located on a portion of the third floor of a seven-story building at 224 East 11th Street, was burglarized. (Id. at pp. 29, 31.) Hymer was seen by a police officer sitting on the driver's side of his car parked across the street from 224 East 11th Street. The officer saw a man rush out of the building with an armful of ladies' coats. (Id. at p. 30.) This man ran to Hymer's car, Hymer got out of the car, opened the trunk and the man with the coats threw them into the trunk. A red sleeve of one of the coats stuck out from under the trunk lid. Hymer raised the lid, shoved the coat sleeve in again, slammed the door down and got into the driver's side of the car. In the meantime, the other person ran back across the street and reentered the building. After Hymer got back in his automobile he started the motor, drove west 35 or 40 feet to an alley, made a U-turn and came back and parked directly in front of 224 East 11th Street. The officer started to walk across the street. Hymer saw him, looked at the building and shook his head from side to side. Then, Hymer started the car and drove slowly towards the officer. The officer told Hymer to stop, get out of the car and open the trunk, which he did reluctantly. Thereupon, the officer saw the coats. (Ibid.) On appeal, Hymer contended that there was no evidence that he was aware of the unlawful intent of the man that put the coats in the trunk. (Id. at p. 32.) The Court of Appeal affirmed finding that the circumstances reasonably justify the verdict of the jury. (Id. at p. 33.)
In both these cases, the surrounding circumstances were found to justify the juries' verdicts. That is, the defendants aided and abetted the perpetrators.