Opinion
F082727
03-28-2023
THE PEOPLE, Plaintiff and Respondent, v. CRUZITO PADRON, Defendant and Appellant.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. F19901192 Houry A. Sanderson, Judge.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
A jury convicted appellant Cruzito Padron of multiple felonies after he held a knife to the victim's throat and carjacked the victim's vehicle, stealing other property belonging to the victim in the process. Appellant was sentenced to prison for an aggregate determinate term of 21 years.
Appellant raises several issues, including a claim that the trial court erred when it denied his motion to suppress evidence. Approximately 19 months after he was arrested, and while he remained in jail custody, the prosecution's investigator collected a buccal swab from appellant that contained appellant's deoxyribonucleic acid (DNA). This search occurred without a warrant. The trial court denied a motion to exclude the DNA evidence, determining that the government had the right to obtain this sample, at least in part, because appellant was on probation from a prior felony conviction. At trial in this matter, appellant's DNA was matched to the knife used in this attack.
A "buccal swab" collection involves" 'wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual's mouth to collect some skin cells.' [Citation.]" (Maryland v. King (2013) 569 U.S. 435, 444 (King).) Although the swab touches inside that person's mouth, it does not require surgical intrusion beneath the skin. (Ibid.)
Appellant argues that the trial court erred in denying his motion. We reject this claim, along with a majority of appellant's other issues. However, we agree with the parties that, based on retroactive changes in certain sentencing laws, appellant's sentence must be vacated and this matter remanded for resentencing. We otherwise affirm.
BACKGROUND
We summarize the material facts that support appellant's judgment and which are relevant to appellant's arguments on appeal. We provide additional details later in this opinion when relevant to the issues raised.
I. Appellant Carjacks the Victim.
On February 18, 2019, the victim in this matter was sitting in his running vehicle outside his residence when appellant approached him and placed a knife to his throat. Appellant told the victim to give him his wallet and cell phone, and to get out of his vehicle. The victim was very frightened and he complied. Appellant drove away in the victim's vehicle, taking with him the victim's wallet and cell phone.
II. Appellant Crashes the Stolen Vehicle.
Appellant did not possess a valid California driver's license when he drove the victim's vehicle. A short time after stealing this car, he crashed it in a rollover accident. He destroyed 14 rows of grape vines and he sheared off a power pole. The vehicle suffered major damage.
III. Appellant is Arrested.
This carjacking occurred in Selma, California, at approximately 9:50 p.m. Law enforcement was dispatched to the victim's residence at about 9:55 p.m.
At about 10:00 p.m., law enforcement was dispatched to the crash site with a report of an overturned vehicle. Appellant had crashed the victim's vehicle about two to three miles from the victim's residence. When law enforcement arrived, nobody was in the vehicle. The crash site was in a rural area.
At about 10:45 p.m., law enforcement received a call regarding a "suspicious" person walking in a roadway about a mile or two outside of Selma. At about 11:00 p.m. that night, or a little before, law enforcement officers made contact with appellant. Appellant was about a mile and a half from the accident scene. He was walking on the shoulder of a road. Appellant was slurring his words and drooling. He had a "pretty deep" cut on one of his hands.
The officer who found appellant walking on the shoulder of the road testified that, as a "crow flies," appellant was about a mile and a half away from the accident scene. Via the roads, however, appellant was about two and a half miles away from the crash site. On cross-examination, however, the officer admitted that he had written in his report that appellant was found about three miles from the accident scene.
Appellant stated that he had been in an auto accident. He told an officer that he had smoked a "blunt" and he had taken a Xanax pill about two hours before the crash.He said he had sustained the cut to his hand during the crash. Appellant was arrested on suspicion of driving a vehicle while impaired.
The officer told the jury that he understood "blunt" to mean that appellant had smoked marijuana.
Appellant was transported to a hospital. He received five stitches to close the cut on his hand. His blood was drawn, and it was later tested. The forensic testing showed that appellant had components of marijuana in his system on the night he committed these crimes. The toxicology test also screened for other drugs in his system, such as Xanax, but those results were negative. However, a "full" toxicology screening was not done in this case to test for the possibility of hundreds of other chemicals or drugs, such as LSD or mushrooms, which could have caused behavioral changes.
The forensic toxicologist testified at trial that the amount of marijuana detected in appellant's system was "relatively low." The officer who arrested appellant that night told the jury that, based on his training and experience, appellant's intoxication was consistent with someone who had taken Xanax.
Law enforcement recovered the knife used in this attack. The knife was found inside the victim's crashed vehicle. There was blood on the knife, which was swabbed.
IV. The Victim Identifies Appellant in a Field Show-up.
On the night of this attack, law enforcement transported the victim to conduct a field show-up of appellant. The victim saw appellant while appellant was in the back of an ambulance. The ambulance doors were open. The victim observed appellant from a distance of about 15 yards as the victim sat in the back of an officer's patrol vehicle. The victim confirmed that night that appellant had been his attacker.
V. The Prosecution Obtains Appellant's DNA Sample While he is in Jail Custody.
After appellant was booked into jail for these crimes, the prosecution sent an investigator to collect a buccal swab from him. The investigator obtained appellant's DNA sample without a warrant. This swab was collected approximately a year and seven months after appellant had been booked for the present charges.
VI. The Victim Identifies Appellant at Trial and Appellant's DNA is Linked to the Knife.
At trial, the victim identified appellant as the person who had accosted him and stolen his property on the night in question. The victim was shown a photograph of the knife which had been recovered from his stolen vehicle. He confirmed that the recovered knife, which had two blades, had been the same one which appellant had pressed against his neck.
The victim described this knife as having two tips, and it looked like a knife that would be used for "carne asada" or barbeque.
Based on the buccal swab that had been taken from appellant, the prosecution established it was appellant's blood on the knife used in this attack, which had been recovered from the victim's crashed vehicle.
VII. Appellant's Convictions and his Prison Sentence.
The jury convicted appellant of the following charges and the trial court imposed the following sentences in each count:
The charge in count 5 was dismissed. In a bifurcated proceeding, appellant admitted that he had a prior strike offense.
1. Guilty of carjacking (Pen. Code, § 215, subd. (a); count 1). The jury found true that appellant personally used a dangerous and deadly weapon in the commission of this offense (§ 12022, subd. (b)(2)). The court imposed an upper term of nine years, which was doubled because of appellant's prior strike. For the dangerous weapon enhancement, the court imposed the aggravated term of three years.
All future statutory references are to the Penal Code unless otherwise noted.
2. Guilty of second degree robbery (§ 211; count 2). The jury found true that appellant personally used a dangerous and deadly weapon in the commission of this offense (§ 12022, subd. (b)(1)). The court imposed an upper term of five years, which was doubled. This sentence was stayed pursuant to section 654.
3. Guilty of assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The court imposed an upper term of four years, which was doubled. This sentence was stayed.
4. Guilty of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a); count 4). The jury found true that the vehicle was valued in excess of $950 (§§ 487, 490.2, subd. (a)). The court imposed the upper term of four years, which was doubled. This sentence was stayed.
5. Guilty of driving under the influence of a drug (Veh. Code, § 23152, subd. (f); count 6). Appellant was granted credit for time served for this misdemeanor.
6. Guilty of hit and run driving (Veh. Code, § 20002, subd. (a); count 7). Appellant was granted credit for time served for this misdemeanor.
7. Guilty of driving without a license (Veh. Code, § 12500, subd. (a); count 8). Appellant was granted credit for time served for this misdemeanor.
DISCUSSION
I. The Trial Court Did Not Err in Denying Appellant's Motion to Exclude the DNA Evidence.
Appellant argues that the trial court erred when it denied his motion to exclude the DNA evidence that the prosecution obtained from him without a warrant. Appellant contends that this evidence must be suppressed, and his judgment reversed.
A. Background.
We summarize appellant's prior criminal conviction, which is relevant to the present issue because he was serving a term of probation when this buccal swab was taken. We also summarize appellant's motion to suppress and the trial court's ruling.
1. Appellant's prior felony conviction and term of probation.
On February 23, 2018, appellant was sentenced for a felony violation of section 29820, subdivision (b). He was placed on three years' formal probation. One condition of that probation required appellant to submit to DNA testing pursuant to section 296.
On February 22, 2019, appellant's probation was summarily revoked after he was arrested for the present offenses. An arraignment was set. The violation of probation matter trailed the present criminal case as it proceeded to trial.
2. The prosecution swabs appellant's cheek for DNA.
On September 3, 2020 (about three months before the first trial witness testified in this matter), appellant's trial counsel alerted the court that the prosecutor was going to have an investigator take a swab of appellant's DNA. Defense counsel understood that the prosecutor's office was going to take this sample on the basis that appellant was subject to search and seizure on his pending case involving his violation of probation. Defense counsel objected to such a search. However, defense counsel conceded that appellant had "a standard search and seizure term" on his probation. Nevertheless, defense counsel believed that term did not permit the taking of a DNA sample. The court responded that it did not have an issue before it to resolve at that point.
3. The motion to suppress and the court's ruling.
On November 30, 2020, and as part of his motions in limine just prior to trial in this matter, appellant filed a motion asserting that the prosecution had taken a DNA swab from him without a warrant. The defense asked the trial court to exclude the DNA evidence at the pending trial.
The trial evidence demonstrates that this buccal swab was taken on or about September 8, 2020.
The prosecution did not file a written response to this issue or raise this subject in its own trial brief.
At oral argument, the parties agreed that an Evidence Code section 402 hearing was not required because there were "no factual discrepancies." The parties also agreed that, after appellant had been arrested in this matter and he was in custody, an investigator from the prosecutor's office had retrieved a buccal swab from appellant at the prosecutor's request. This DNA sample was collected approximately a year and seven months after appellant had been booked for the present charges.
The prosecutor objected to appellant's motion to suppress, arguing that the buccal swab had been noninvasive, and appellant had been on probation and open to search and seizure. The prosecutor asserted that this search had been justified without a warrant.
The prosecutor explained that law enforcement had not collected appellant's DNA sample at the time of his arrest because he had needed medical attention, and he had been transported to the hospital "almost immediately" after officers had contacted him. The prosecutor explained that "confusion" had occurred because multiple police agencies had been involved in this investigation. The prosecutor stated that this buccal swab had been eventually taken "for identification purposes."
California has the "DNA and Forensic Identification Database and Data Bank Act of 1998" (the DNA Act) which requires law enforcement officials to collect DNA samples from all persons who are arrested for, as well as those who have been convicted of, felony offenses. (People v. Buza (2018) 4 Cal.5th 658, 664; see also §§ 295, subd. (a), 296.1, subd. (a)(1)(A).) This act mandates that each adult person arrested for a felony offense shall provide a buccal swab sample "immediately following arrest, or during the booking or intake or prison reception center process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody." (§ 296.1, subd. (a)(1)(A), italics added.) In relevant part, the DNA Act states that its purpose is to accurately identify and prosecute criminal offenders, and to exonerate the innocent. (§ 295, subds. (b)(1) &(d).)
The trial court took judicial notice that, on February 23, 2018, appellant had been placed on probation with a number of conditions, including that he was required to submit to DNA testing pursuant to section 296. The court noted that the buccal swab was not an invasive process. The court believed that, even though law enforcement had not taken the buccal swab when appellant had been arrested, that did not preclude the district attorney's office, which was another agency from the executive branch, from obtaining this sample at a later time. The court did not know whether or not appellant had served all of his time on probation, but the court commented that appellant still had conditions of probation imposed against him and it was not known whether those conditions had been met. Finally, the court observed that this issue had been brought to the defense's attention well in advance of trial. The court denied the motion to suppress this evidence.
4. The trial court terminates appellant's term of probation.
On March 16, 2021, the trial court sentenced appellant in the present matter. After sentencing appellant to prison for these convictions, the court addressed the trailing case involving the violation of probation. Appellant waived formal arraignment and the court found that he was in violation. The court formally terminated that probation, and appellant was granted credit for time served.
B. Standard of review.
Because the evidence below is uncontested, we independently review this matter to determine if the trial court erred in denying appellant's motion to suppress. (People v. Roybal (1998) 19 Cal.4th 481, 506-507; People v. Williams (1988) 45 Cal.3d 1268, 1301.
C. Analysis.
The Fourth Amendment of the United States Constitution, which is binding on the States through the Fourteenth Amendment, protects people against" 'unreasonable searches and seizures'" of, among other things, their person. (King, supra, 569 U.S. at p. 446; Virginia v. Moore (2008) 553 U.S. 164, 168.) A constitutional "search" occurs when a buccal swab is used on the inner tissues of a person's cheek in order to obtain a DNA sample. (King, supra, 569 U.S. at p. 446.) Generally, a government official must obtain a warrant from a judicial officer before conducting a search. (People v. Williams (1999) 20 Cal.4th 119, 125.) However, there are judicially created exceptions to the warrant requirement. (Illinois v. McArthur (2001) 531 U.S. 326, 330.)
In exchange for avoiding a prison term, a probationer may validly consent in advance to warrantless searches. (People v. Vargas (2020) 9 Cal.5th 793, 814; People v. Woods (1999) 21 Cal.4th 668, 674; People v. Bravo (1987) 43 Cal.3d 600, 608.) Searches conducted pursuant to a condition of probation do not violate the Fourth Amendment. (People v. Vargas, supra, 9 Cal.5th at p. 814; People v. Woods, supra, 21 Cal.4th at pp. 674-675.) However, "[a] waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons." (People v. Bravo, supra, 43 Cal.3d at p. 610.)
In general, the search of a parolee or probationer is not justified when law enforcement officers were unaware that the suspect was subject to a search condition when the search was conducted. (People v. Schmitz (2012) 55 Cal.4th 909, 916 [parolee]; People v. Rosas (2020) 50 Cal.App.5th 17, 24 [probationer].) Because the terms of probation define the allowable scope of a search, the searching officer must have prior knowledge of the applicable search condition before conducting a search. (People v. Rosas, supra, 50 Cal.App.5th at pp. 24-25.) Without such prior knowledge, the search cannot be justified as a proper probation search. (Id. at p. 25.)
Appellant argues that this was not a valid probation search because the probation department was not involved. He also contends that this record does not demonstrate that the prosecution's investigator took his DNA sample with knowledge of his search conditions. He asserts that this warrantless search violated his Fourth Amendment rights, and the trial court erred in denying his motion to suppress. We reject appellant's arguments.
The prosecution's investigator was a sworn peace officer. (§§ 830 &830.1, subd. (a).) The trial court took judicial notice that, pursuant to the three-year probation that had been imposed in February 2018, appellant had been required to submit to DNA testing pursuant to section 296. Defense counsel conceded to the trial court that appellant had "a standard search and seizure term" on his pending violation of probation case. The prosecutor made it clear to the court that his investigator had obtained appellant's buccal swab in September 2020 because of appellant's existing probation. As such, this record amply demonstrates that the prosecution's office conducted this search pursuant to appellant's terms of probation. Therefore, a reasonable inference may also be drawn that the investigator was aware of appellant's probationary status and his prior consent to a warrantless search.
Until a trial court formally ends probation, its terms remain in effect and a defendant is not free of those conditions. (People v. Lewis (1992) 7 Cal.App.4th 1949, 1954-1955; People v. Barkins (1978) 81 Cal.App.3d 30, 33.) If probation is revoked because it is believed a probationer has violated his terms and conditions of probation, that revocation tolls the running of the period of supervision. (§ 1203.2, subd. (a); see also People v. Ornelas (2023) 87 Cal.App.5th 1305, 1310.) This tolling provision preserves jurisdiction for the trial court to adjudicate a claim that the defendant violated a condition of probation during the probationary period even if a formal violation hearing cannot be held before probation expires. (People v. Leiva (2013) 56 Cal.4th 498, 515.) However, the tolling provision does not stop probation so as to relieve the defendant from complying with the conditions imposed by the court. "[T]here is 'no "window" during the probationary term which allows the probationer to be free from the terms and conditions originally imposed or later modified ..'" (Id. at p. 508, quoting People v. Lewis, supra, 7 Cal.App.4th 1949, 1954, fn. omitted.)
Appellant's term of probation did not formally terminate until March 16, 2021, the day he was sentenced in this matter. At that time, his trailing case involving his violation of probation was resolved. Therefore, his conditions of probation, including his need to provide a DNA sample and his consent to warrantless searches, were still in effect when the prosecutor's investigator obtained this buccal swab in 2020.
This record establishes that the government did not conduct this search for purposes of harassment, or for arbitrary and capricious reasons. Consequently, this warrantless search did not violate the Fourth Amendment. (People v. Bravo, supra, 43 Cal.3d at p. 610.) Therefore, the trial court did not err in denying the motion to exclude this DNA evidence.
Finally, we note that, effective January 1, 2021, the Legislature amended the maximum term of probation that can be imposed in most cases for a person convicted of a felony. Under this change in law, two years is now the maximum period of probation. (§ 1203.1, subd. (a).) This amendment is retroactive. (People v. Shelly (2022) 81 Cal.App.5th 181, 185-186.)
The maximum term of probation for a person convicted of a felony had previously been the length of the maximum possible prison term of the sentence, or five years if the maximum prison term was five years or less. (§ 1203.1, former subd. (a).)
This change in the law does not alter the conclusion that error did not occur. Appellant's term of probation was suspended after he was arrested in 2019. At that time, he had completed only about one year of his probation. The prosecution obtained appellant's DNA in September 2020 before this new law went into effect. Thus, regardless of this retroactive change in the law, this search was conducted pursuant to a valid condition of probation. Therefore, an exception to the warrant requirement existed and the Fourth Amendment was not violated. Accordingly, reversal is not required and this claim fails.
Because this warrantless search was validly conducted under appellant's conditions of probation, we need not address his other arguments, including his claim of prejudice. We also need not resolve respondent's assertion that appellant's motion was not properly noticed under section 1538.5. Instead, the trial court properly denied appellant's motion to exclude this DNA evidence and this claim fails.
II. Appellant's Trial Was Not Made Fundamentally Unfair by an Instruction Regarding Eyewitness Certainty and any Presumed Error was Harmless.
CALCRIM No. 315 instructs jurors that they may consider a witness's certainty, among other factors, when evaluating identification testimony. This instruction was given to appellant's jury.
A little over five months after appellant's trial occurred, the California Supreme Court issued an opinion which analyzed whether the "certainty" instruction violates due process. (People v. Lemcke (2021) 11 Cal.5th 644, 646 (Lemcke).) Based on the entire trial record in Lemcke, which included an eyewitness identification expert who had testified for the defense, the Lemcke court held that the certainty factor had not rendered the defendant's trial fundamentally unfair. (Id. at p. 646.) However, the Supreme Court agreed that, despite the absence of a constitutional violation, a "reevaluation of the certainty instruction" was warranted. (Id. at p. 647.) Lemcke concluded that "near unanimity in the empirical research" now exists that" 'eyewitness confidence is generally an unreliable indicator of accuracy.' [Citations.]" (Ibid.) The high court noted that, based on many studies, "eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an identification." (Ibid.) In light of these concerns, the Supreme Court referred the matter to the Judicial Council of California and its Advisory Committee on Criminal Jury Instructions to evaluate whether or how this instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy. (Ibid.) The Lemcke court directed trial courts to omit the certainty factor from CALCRIM No. 315 (unless a defendant requests otherwise) until the Judicial Council has completed its evaluation. (Lemcke, supra, at pp. 647-648.)
Following Lemcke, our high court in People v. Wright (2021) 12 Cal.5th 419 (Wright) again addressed the concerns associated with a certainty instruction. In Wright, no eyewitness identification expert testified for the defense. (Wright, supra, at p. 453.) However, the defendant's primary trial strategy in Wright was to discredit the eyewitnesses who had testified against him, and "to imply that the eyewitnesses were testifying falsely. At no point did defendant argue that the witnesses mistook his identity. This was in contrast to Lemcke, where the defense strategy focused on questioning the victim's identification of the defendant." (Wright, supra, at p. 453, citing Lemcke, supra, 11 Cal.5th at pp. 652-653.) The Wright court held that Lemcke was distinguishable because multiple witnesses had identified the defendant in Wright and at least two of the witnesses had known the defendant in some capacity prior to the attack. (Wright, supra, at p. 453.)
In this matter, appellant contends that the trial court violated his due process rights when it instructed his jury with CALCRIM No. 315. According to appellant, he received a fundamentally unfair trial because the jurors were told that a witness's level of certainty is a factor to consider in evaluating the accuracy of identification testimony. He asserts that this instructional error was prejudicial, and his judgment should be reversed.
We reject appellant's arguments. His trial was not fundamentally unfair and any presumed error was overwhelmingly harmless.
The parties dispute whether or not appellant has forfeited this claim. We need not resolve that dispute because this claim fails on its merits and any presumed error was harmless.
A. Appellant's trial was not fundamentally unfair.
It is undisputed that appellant did not call an expert witness to testify about the inherent problems associated with eyewitness identifications. Nevertheless, defense counsel cross-examined the victim regarding the circumstances surrounding the carjacking. Defense counsel was able to raise concerns regarding the victim's ability to accurately identify his attacker given, in part, the lighting conditions and the stress of the incident.
Although the defense did not call an expert witness to testify regarding witness certainty, appellant had a full and fair opportunity to challenge the eyewitness identification testimony that was introduced against him. In any event, we note that the victim was never asked at trial whether he was certain or not regarding his identification of appellant as his attacker.
Moreover, the jury received other instructions that eliminate any reasonable concerns that the prosecution's burden of proof was lowered or that appellant's due process rights were violated. (See Lemcke, supra, 11 Cal.5th at pp. 658, 660.) With CALCRIM No. 220, the jurors were informed that appellant was presumed to be innocent and this presumption required the prosecution to prove him guilty beyond a reasonable doubt.
With CALCRIM No. 226, the jurors were told to use their "common sense and experience" when judging a witness's credibility. The jurors were given a list of factors to consider, including how well the witness could perceive the event, the witness's behavior while testifying, and whether the witness's testimony was reasonable when all of the other evidence was considered. The jurors were instructed that people sometimes "honestly forget things or make mistakes about what they remember." The jurors were informed they could accept part of a witness's testimony and reject other parts.
Finally, with CALCRIM No. 315, the jurors were given 14 factors to consider when deciding whether the victim gave truthful and accurate identification testimony. These factors included the disputed "certainty" question. After listing the factors to consider, this instruction again reiterated that the prosecution bore the burden to prove beyond a reasonable doubt that it was appellant who committed the charged crimes. The jurors were instructed to find appellant not guilty if the People did not meet this burden.
Taken as a whole, the instructions given in this matter do not support a conclusion that the jury was encouraged to give undue weight to the problematic "certainty" factor. To the contrary, this trial record demonstrates that this factor did not render appellant's trial fundamentally unfair or lower the prosecution's burden of proof. (See Lemcke, supra, 11 Cal.5th at p. 657.) Based on Lemcke and Wright, we reject appellant's claim. He did not suffer any constitutional violations.
B. Any presumed error was harmless.
Even if a constitutional violation occurred, we can declare that any presumed error was harmless beyond any reasonable doubt. Appellant's DNA was matched to the blood found on the knife used in this carjacking, and that knife was recovered from the victim's crashed vehicle. Moreover, the victim was never asked at trial whether or not he was certain of his identification of appellant as his attacker. The prosecutor never mentioned the certainty instruction during closing argument when discussing the victim's identification of appellant as the perpetrator of this carjacking.
CALCRIM No. 315 mentioned the certainty factor in a neutral manner. It merely told the jurors that they should consider it and it did not suggest that certainty equals accuracy. During closing argument, the defense emphasized numerous concerns surrounding the victim's eyewitness testimony. Defense counsel asserted that the victim had identified the wrong person, and appellant had not been involved in this carjacking. Counsel noted that appellant's injuries were not consistent with someone who had supposedly just been involved in a major accident. Counsel argued that the officers involved in this investigation had made mistakes, and they had deceived the jurors during their testimony. Counsel asked the jurors to question whether the officers had performed their duties appropriately, and whether appellant's blood had actually been collected from the knife used in this attack. Counsel argued that reasonable doubt existed from numerous factors, including the victim's inconsistent description of his attacker.Counsel also asserted that the officers who allegedly collected the DNA evidence in this case were not "forthcoming."
During his trial testimony, the victim had admitted to defense counsel that he had only seen one tattoo on his attacker's face, and his attacker had short hair. In contrast, an officer who saw appellant on the night in question testified at trial that appellant had shoulder length hair when these crimes occurred. According to the officer, appellant had tattoos on his face and neck.
At trial, an evidentiary conflict existed regarding whether or not law enforcement had admonished the victim prior to conducting the field show-up that the person he was about to see may or may not be the suspect. According to the victim, no officer gave him any warnings before he was asked to view appellant. In contrast, a Spanish speaking officer, Jonathan Carrillo, told the jury that he had admonished the victim, who primarily spoke Spanish. Carrillo, however, admitted at trial that he had erroneously written in his report that another officer had provided the admonishment. During closing argument, the prosecutor conceded it was possible no admonishment was given to the victim before the show-up occurred.
Based on the verdicts rendered, it is apparent that the jury rejected the defense's position. When everything is considered, it is not reasonably probable appellant would have obtained a more favorable result had the trial court deleted the certainty factor. (See People v. Sanchez (2016) 63 Cal.4th 411, 463.) Likewise, we can declare beyond any reasonable doubt that the alleged instructional error did not contribute to the verdicts. (See People v. Aranda (2012) 55 Cal.4th 342, 367.) In other words, the guilty verdicts actually rendered in this trial were surely unattributable to any presumed error. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Accordingly, prejudice is not present shoulder length hair when these crimes occurred. According to the officer, appellant had tattoos on his face and neck. even under the more stringent federal standard. As a result, reversal of appellant's judgment is not warranted and this claim fails.
III. Appellant's Claim of Cumulative Error is Without Merit.
Appellant raises a claim of cumulative error. He contends that, even if we reject his two arguments above, reversal of his judgment is still required because he suffered a fundamentally unfair trial due to the cumulative effect of these alleged errors. We disagree.
"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
We reject appellant's claim of cumulative error because we have denied all of his individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) Taking all of appellant's claims into account, we are satisfied that he received a fair adjudication regarding his guilt for these charges.
IV. Due to Retroactive Changes, Appellant's Sentence must be Vacated and this Matter Remanded for Resentencing.
At sentencing in this matter, the trial court followed the recommendations from the probation department and it imposed the maximum possible sentence against appellant, 21 years in prison. For each felony conviction, the court imposed the upper term. The parties now agree that, based on retroactive changes to certain sentencing laws, appellant's sentence must be vacated and this matter remanded for resentencing.
Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b). (Stats. 2021, ch. 731, § 1.3.) Under this change in law, a court may now impose an upper term sentence only when there are circumstances in aggravation that justify it, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt by the finder of fact. (§ 1170, subd. (b)(2).)
Effective January 1, 2022, Assembly Bill No. 518 modified section 654, subdivision (a). Under this change in law, a sentencing court now has discretion to stay a sentence that does not necessarily result in the longest possible sentence when an act can be punished under two or more provisions of law. (Stats. 2021, ch. 441, § 1.)
Respondent concedes that both of these changes in law retroactively apply to this matter. We agree because these ameliorative changes occurred while this matter was still pending on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745.) Respondent further concedes that, based on these changes, this matter should be remanded for resentencing. We accept respondent's concession. As noted by the parties, upper term sentences were imposed on counts 1, 2, 3, and 4. However, the trial court did not rely upon aggravating circumstances found true by the jury or admitted by appellant. In addition, the court exercised its sentencing discretion without the benefit of the changes that have subsequently occurred regarding section 654. Thus, we remand this matter for resentencing in light of Senate Bill No. 567 and Assembly Bill No. 518.
In his opening brief, appellant originally asserted that his trial counsel rendered ineffective assistance by failing to seek an ability to pay hearing at sentencing regarding certain fees and fines which the trial court imposed. In his reply brief, however, appellant agrees with respondent that, because this matter must be remanded for resentencing, appellant is free to raise this issue when resentencing occurs. Because we are remanding this matter for resentencing, we do not address appellant's claim of ineffective assistance regarding an ability to pay hearing. Instead, appellant is free to raise that issue at resentencing.
DISPOSITION
Appellant's sentence is vacated and this matter is remanded for resentencing consistent with Senate Bill No. 567 and Assembly Bill No. 518. In all other respects, the judgment is affirmed.
WE CONCUR: SNAUFFER, J. DE SANTOS, J.