Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court Ct. No. 02WF1367 of Orange County, Kazuharu Makino, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P. Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury found defendant Marquis Iben Alashanti guilty of the second degree robbery of Jim Earhart (Pen. Code, §§ 211, 212.5, subd. (c), & 213, subd. (a)(2)) (count 2), receiving stolen property, a van (§ 496, subd. (a)) (count 4), and street terrorism (§ 186.22, subd. (a)) (count 5). The jury also found true an allegation that counts 2 and 4 were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code.
Defendant was sentenced to a total prison term of 25 years, comprised of the upper term of five years for the robbery, doubled because defendant had a strike, ten years for the gang enhancement attached to the robbery count, and to concurrent terms for the receiving and street terrorism counts. In addition, the court imposed a consecutive five-year prior serious felony enhancement under section 667, subdivision (a)(1). The court struck a prior prison term enhancement.
In an unpublished opinion, we affirmed the judgment. The United States Supreme Court granted certiorari, vacated the judgment, and remanded for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham).
Defendant asserts the evidence was insufficient to sustain his conviction of street terrorism and the true findings on the gang enhancements attached to counts 2 and 4. He also contends proprietorial misconduct resulted in a denial of due process. Defendant also argues several types of sentencing error. In his supplemental brief on remand, defendant contends “the court’s imposition of the upper term for the robbery was based on factual findings that violated appellant’s Sixth and Fourteenth Amendment rights under [Cunningham, supra, 127 S.Ct. 856], because the findings were made by the court and not by the jury, and because the facts were found true only by a preponderance of the evidence and not beyond a reasonable doubt.”
We reject all of defendant’s contentions and affirm the judgment.
FACTS
James Earhart was the owner and sole employee of a Garden Grove business known as Holly’s Coin and Collectibles (Holly’s Coin). On June 13, 2002, Joe Baby Burnell entered the store and sold some coins to Earhart. As he was leaving, Burnell told Earhart he had some more coins and asked if he could bring them back the next day. While Burnell was in Holly’s Coin, another black man was seen walking the perimeter of the shopping center while still another waited for Burnell in a silver Toyota.
At about 4:30 p.m. the next day, Burnell returned in a stolen maroon GMC minivan in the company of defendant and De Angelo Clay. Burnell entered Holly’s Coin. Defendant entered a nearby store that had a view of Holly’s Coin, but left after observing the store’s employee watching television at the rear of the store. After Earhart finished with another customer, Burnell approached the counter and laid out three rows of coins. As Earhart began looking at the coins, Burnell came around the counter and grabbed Earhart from behind, put a gun to the back of his head, and said, “‘I’m going to kill you, you mother fucker.’” Earhart struggled, but Burnell put the gun to Earhart’s right temple near the right eye and pulled the trigger. The bullet exited Earhart’s left temple near the left eye. Earhart fell to the floor, still alert, but in pain and shock. He pretended he was dead, and felt someone go through his pockets. Earhart heard the sound of the buzzer on the store’s security door, heard someone else come into the store, heard whispering, and then heard things being moved around in the direction of a corner safe. When Earhart heard the security door buzzer again, and it became silent in the store, he was able to crawl to the door, unlatch it, and crawl outside where he yelled for help. Earhart lost both eyes, and his senses of smell and taste.
Burnell and his accomplices took merchandise worth, by Earhart’s estimate, $16,000 to $20,000, some currency, and some personal mortgage refinancing papers. The stolen maroon GMC minivan was recovered shortly after 8:00 o’clock that evening in a parking lot half a mile from Holly’s Coin. The steering wheel was stained with blood and Earhart’s refinancing papers were found within the vehicle. Investigators also recovered a black plastic bag containing three duffel bags, black gloves, and a cardboard box. One of the duffel bags contained a small pry bar.
Clay’s palm print was found on the front passenger door of the minivan. Defendant’s fingerprints were found on the black plastic bag recovered from the vehicle. Burnell’s fingerprints were found on the same black plastic bag, the cardboard box, and Earhart’s papers. Inside Holly’s Coin’s premises, Burnell’s fingerprints were found on the display case.
Officer Jamie Smerdel of the Los Angeles Police Department gave expert testimony about the Rolling 30’s Harlem Crips (Rolling 30’s) gang and defendant’s participation in that gang. Smerdel opined the Rolling 30’s gang was an active criminal street gang whose primary activities were robberies, drive-by shootings, murders and attempted murders, carjacking, narcotics sales, and weapons violations. Smerdel also opined defendant was a member and an active participant in the Rolling 30’s gang as of the date of the Earhart robbery, June 14, 2002. Smerdel based her opinion on defendant’s admission of his membership in 1999 when a weapon was found in a car in which he was a passenger, the numerous tattoos on defendant’s body associating himself with the Rolling 30’s, and contacts with police during investigations of criminal activities in 1990 and 1994.
Defendant also admitted membership in the Rolling 30’s while being interrogated after his arrest in connection with the Earhart robbery.
Answering a hypothetical question based on facts in evidence, Smerdel opined the Earhart robbery was committed for the benefit of, and in association with both the Rolling 30’s and the 11 Deuce Hoover Crips (11 Deuce Hoover) gangs, and that an alliance between the Rolling 30’s and the 11 Deuce Hoovers had been affirmatively documented in August 2002, two months after the Earhart robbery. Specifically, Smerdel had learned the Rolling 30’s, the 11 Deuce Hoovers, and Nothing But Trouble, a gang having its origins on Haldale Street, had formed an alliance called the Triple H (Thirties, Hoover, and Haldale).
Deputy Sheriff William Pickett of the Los Angeles County Sheriff’s Department testified as an expert on the 11 Deuce Hoover gang. He opined 11 Deuce Hoover was a criminal street gang of about 160 members whose primary activities were narcotic sales, shootings, assaults with deadly weapons, murders, car thefts, residential burglaries and weapons violations, and that Burnell was an active member of the 11 Deuce Hoover gang on June 14, 2002. Pickett based his opinion on Burnell’s tattoos, various field information cards generated in the course of several contacts with law enforcement in 1999, and his opinion Burnell’s tattoos were “earned,” not “given.” It was also Pickett’s opinion that the Earhart robbery was committed for the benefit of, and in association with, both the Rolling 30’s and the 11 Deuce Hoover gangs.
DISCUSSION
Substantial Evidence Supports Defendant’s Convictions of Street Terrorism and the Gang Enhancements Attached to the Robbery and Receiving Counts
Defendant contends the evidence was insufficient to support his conviction of street terrorism under section 186.22, subdivision (a), or the enhancements attached to the robbery and receiving counts imposed under section 186.22, subdivision (b)(1). He argues the prosecution failed to prove: the Earhart robbery was gang related; that he promoted, furthered or assisted criminal conduct by a member of his gang; or that he was an active participant in the Rolling 30’s gang. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11). We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) And it is not within our province to reweigh the evidence or redetermine issues of credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
1. The Evidence Was Sufficient to Support the Street Terrorism Conviction
Section 186.22, subdivision (a) provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment . . . .” Defendant’s challenge to the sufficiency of the evidence is directed to the requirements that he must have been an “active participant” in a criminal street gang, and that he must have “promote[d], further[d], or assist[ed]” in felonious criminal conduct by members of “that gang.” He does not assert the evidence was insufficient to support findings that Rolling 30’s was a criminal street gang, or that he had knowledge that members of the Rolling 30’s gang engage in or have engaged in a pattern of criminal gang activity. In making his arguments, however, defendant improperly asks us to reweigh the evidence.
A. Active Participation in a Criminal Street Gang
Defendant’s “active participation” in the Rolling 30’s was proved by Officer Smerdel’s expert opinion that defendant was an active participant in the Rolling 30’s on June 14, 2002, as well as by defendant’s admission of membership after his arrest for the Earhart robbery. Smerdel based her opinion on defendant’s admission of membership in 1999, when a weapon was found in a car in which he was a passenger, numerous tattoos on defendant’s body that associated him with the Rolling 30’s, and contacts with police during investigations of criminal activities in 1990 and 1994. Moreover, Smerdel also opined the Earhart robbery was committed for the benefit of, and in association with both the Rolling 30’s and the 11 Deuce Hoover gangs (relevant to the gang enhancement). Since defendant participated in the robbery, this opinion also constituted substantial evidence in support of defendant’s active participation in the Rolling 30’s.
Smerdel based her opinion that the robbery was gang-related on the evidence of the other participants’ membership in gangs, the pre-planning of the crime as shown by evidence of the surveillance of the site the day before the crime, the discovery of gloves, bags, and a pry bar in the stolen vehicle, the extent of violence involved, and the fact the crime was committed for financial gain (typical of the Crips generally). Further, she testified the type of crime involved in the Earhart robbery benefited both gangs because, in the gang culture, violent crime brings a heightened respect and status to the gangs and its members.
Officer Smerdel’s “fact-based specific opinion” (People v. Augborne (2002) 104 Cal.App.4th 362, 373) constituted substantial evidence supporting the jury’s implied finding that defendant actively participated in the Rolling 30’s gang. Although defendant correctly argues gang membership by itself will not support a street terrorism conviction, the evidence was sufficient for the jury to find defendant’s involvement in the Rolling 30’s was “‘more than nominal or passive.’” (People v. Castenada (2000) 23 Cal.4th 743, 752.) And, as we discuss post, the evidence was also sufficient to support a finding that defendant willfully furthered and assisted criminal conduct by his gang. Defendant’s criminal conduct in furtherance of a criminal street gang is, by definition, substantial evidence of active participation in the gang. (Ibid.)
B. Furtherance of Felonious Criminal Conduct
Defendant argues there was insubstantial evidence to support a finding that he willfully promoted, furthered, or assisted felonious criminal conduct by members of the Rolling 30’s. Defendant bases his argument on a faulty interpretation of section 186.22, subdivision (a). Under defendant’s theory, he would not incur criminal liability under the statute unless he had aided and abetted criminal conduct by another member of his own gang. But, according to defendant’s argument, he would not incur criminal liability if he were either a direct perpetrator or he had aided and abetted criminal conduct by a member of another gang. Defendant’s argument ignores the language of the statute.
We “give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute.” (People v. Allen (1999) 21 Cal.4th 846, 859.) Conviction under section 186.22, subdivision (a) requires that defendant be found to have “willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang.” In People v. Ngoun (2001) 88 Cal.App.4th 432, the court considered whether a direct perpetrator is subject to criminal liability under section 186.22, subdivision (a), or whether liability is limited to aiders and abettors. Utilizing dictionary definitions to determine the common meaning of the words “promote,” “further,” and “assist,” the court concluded “[a]n active gang member who directly perpetrates a gang-related offense ‘contributes’ to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct.” (Id. at p. 436.) We agree with our colleagues of the Fifth District Court of Appeal that interpreting section 186.22, subdivision (a), so that only an aider or abettor is subject to liability, but a direct perpetrator is not, “would be a misconstruction of the statutory language and a perversion of the legislative intent . . . .” (People v. Ngoun, supra, 88 Cal.App.4th 432, 437; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Similarly, where defendant aids and abets gang-related criminal conduct by a member of another gang, he is also contributing to and furthering his own felonious criminal conduct as a member of his own gang. The distinction to be drawn is not between an aider and abettor, on the one hand, as contrasted with a direct perpetrator on the other hand. Criminal liability attaches if defendant contributes to the accomplishment of criminal conduct by a member of his own gang — and the criminal conduct at issue may be defendant’s own conduct.
2. The Evidence Was Sufficient to Support the Gang Enhancements
Defendant also contends the evidence was insufficient to support a true finding on the gang enhancement allegations under section 186.22, subdivision (b)(1), because the conduct was not shown by the evidence to be “gang-related, i.e., committed for the benefit of, at the direction of, or in association with a street gang. (See People v. Gardeley (1996) 14 Cal.4th 605, 622 [“the Legislature made it clear that a criminal offense is subject to increased punishment under the STEP Act only if the crime is ‘gang related,’ that is, it must have been committed, in the words of the statute, ‘for the benefit of, at the direction of, or in association with’ a street gang”].)
As described ante, Officer Smerdel opined the Earhart robbery was committed for the benefit of, and in association with both the Rolling 30’s and the 11 Deuce Hoover gangs. Smerdel noted all of the crime’s participants were gang members, the gang culture brings respect and status to those who participate in violent crimes, and the crime was committed for financial gain, which is typical of the Crips primary criminal activities. In People v. Valdez (1997) 58 Cal.App.4th 494, a car caravan comprised of members of several different gangs engaged in an altercation with rival gangs resulting in a murder. Although the evidence was insufficient to show the gathering of members from several different gangs to form one caravan constituted a “criminal street gang,” a gang expert testified the caravan “acted for the benefit of, in association with, or at the direction of all seven gangs of which they were variously members or associates.” (Id. at pp. 503-504.) The court held the expert opinion testimony was not only sufficient to establish the crime was “gang related,” but, in view of the congregation of such a diverse group, expert opinion testimony was permitted because the matter was “far beyond the common experience of the jury and justified expert testimony.” (Id. at p. 509.) Here, the expert testimony on the issue of the “gang related” nature of the offense paralleled the type of expert testimony received in Valdez. Smerdel’s opinion, by itself, was substantial evidence from which the jury could find the Earhart robbery was committed for the benefit of, and in association with, both the Rolling 30’s and the 11 Deuce Hoovers.
The Proprietorial Misconduct Was Harmless; The Court Did Not Abuse Its Discretion in Denying Defendant’s Motion for Mistrial
The prosecutor called Detective Orlonzo Reyes, a 15-year veteran of the Garden Grove Police Department, to testify concerning the arrest of Burnell and Alashanti. As far as we can discern from the record, Reyes’s testimony was almost entirely irrelevant. As to Burnell’s arrest, Reyes was asked whether he participated in the arrest, and whether the man he arrested was present in the courtroom. Having established this trivial and cumulative fact, Reyes was asked, “Now where did this take place?” Reyes answered, “It was in a parole office in the City of Inglewood.” (Italics added.) Burnell’s counsel did not object or move to strike. After asking about the car Burnell had arrived in on that day (also irrelevant), the prosecutor moved on to inquire about defendant’s arrest.
After establishing where the arrest was made (more irrelevant information), the prosecutor established defendant had identified himself to Reyes as “Iben Alashanti.” The following colloquy ensued. “Q Did you ask him about Marquis? [¶] A Yes. [¶] Q And what did he say about Marquis? [¶] A He said Marquis was his brother. [¶] Q So what did you do in response to that? [¶] A I had with me a print-out photograph taken by the state parole with tattoos. I compared the photograph with Mr. Alashanti and— [¶] [Defense counsel]: Your honor, I’m going to object and ask to approach at this point. [¶] The court: What’s the objection? [¶] [Defense counsel]: The objection is improper questioning, irrelevant. [¶] [The court]: Well, it’s irrelevant. That’s sustained. [¶] [Defense counsel]: I would move to strike and ask the jury be admonished. [¶] [The court]: Okay. Answer is stricken. Jury’s to disregard the answer. It’s stricken.” (Italics added.)
Shortly thereafter, court adjourned for the day, and defendant made his motion for mistrial based on Officer Reyes’s reference to defendant’s parole photo. The prosecutor attempted to explain: “Obviously it was not deliberate. It was something that was not subject of 402. It’s obviously not something I was deliberately inquiring about. But I don’t think it’s so prejudicial, given the court’s admonishment, that Mr. Alashanti cannot get a fair trial.” The court was obviously displeased, saying: “Well, the answer was stricken but he happened to just gratuitously drop it in twice as to each of the defendants so I guess he scored his points that way. It was completely unnecessary. But 90 percent of his testimony was unnecessary, so — I’m not going to grant the mistrial at this point since it was a small point and the answer was stricken.” The court then warned the prosecutor. “But let me just advise the People. I’m looking at this evidence and I would say about 50 percent of it is just unnecessary fat. And if the People want to go ahead, that’s fine. But if any prejudicial material comes in from any other witness for either defendant, I would grant a mistrial because we’re doing this for witnesses that really just don’t even need to be here at all. And then they have to have gratuitous information dropped in like that is just unnecessary.”
The court did not abuse its discretion in denying the motion for mistrial. To the displeasure expressed by the trial judge, however, we add our own. We conclude the episode with Officer Reyes was an inexcusable trial stunt. We do not understand why the prosecutor called Officer Reyes to testify, except as the means to drop the prejudicial information about the parole status of both defendants into the laps of the jurors. When the prosecutor asked Reyes where he had arrested Burnell, did she really not know the arrest had taken place in a parole office? We are not inclined to believe the prosecutor was so ill-prepared as not to know what answer to expect from the witness. Had the prosecutor not asked the question concerning the location of Burnell’s arrest, we might have concluded the question about defendant’s arrest was asked innocently. But when we consider the totality of Reyes’s testimony, including the location of Burnell’s arrest in a parole office, the showing of a “state parole” photo when defendant falsely identified himself, and the near total irrelevancy of Reyes’ testimony, we are compelled to conclude this was a trial stunt planned by the prosecution.
The only conceivable relevancy is defendant’s false identification which arguably evidenced his consciousness of guilt. The prosecutor did make brief reference to the false identification during her closing argument. But we fail to find even that glimmer of relevancy in the questions about Burnell’s arrest.
It is well established that reference to a defendant’s parole status, at least when not offered to attack defendant’s credibility as a witness, may constitute grounds for a mistrial. (See People v. Allen (1978) 77 Cal.App.3d 924, 938 [denial of mistrial constituted error where witness’s reference to defendant’s parole status was prejudicial]; People v. Stinson (1963) 214 Cal.App.2d 476, 479-483 [officer’s reference to defendant’s parole officer was erroneous and altered course of defense strategy, but error was nevertheless not prejudicial].) But it is equally established we review the denial of a motion for mistrial for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 282.) “[A] motion for mistrial should be granted only when ‘“a party’s chances of receiving a fair trial have been irreparably damaged.”’” (Ibid.) “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ . . . Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Here, the court immediately struck the testimony upon defendant’s objection, and admonished the jury to disregard it. Ruling on the motion for mistrial, the court sensibly denied the mistrial because “it was a small point and the answer was stricken.” The evidence of defendant’s guilt was overwhelming. Witnesses placed defendant at the scene acting as a lookout, jumping into the stolen maroon van as it sped away from the crime scene, and leaving his fingerprints on a plastic bag in the stolen vehicle, the same vehicle in which Earhart’s personal papers were found. We conclude the brief, but unwarranted, testimony from Officer Reyes was not so egregious as to infect the trial with such unfairness as to constitute a denial of due process, nor was it reasonably probable a result more favorable to defendant would have been reached in the absence of this incident. (People v. Watson (1956) 46 Cal.2d 818, 836.) Thus the court did not abuse its discretion in denying defendant’s motion for mistrial.
Defendant’s Sixth Amendment Right to a Jury Trial Was Not Violated
Defendant argues the court violated his Sixth Amendment right to a jury trial by sentencing him to the upper term for the robbery based on factual determinations that should have been found by a jury beyond a reasonable doubt. (See generally Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) [“Other 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”]; Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely) [the “statutory maximum” under Apprendi is not the maximum penalty stated in the statute, but rather “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant”]; Cunningham, supra, 127 S.Ct. at p. 868 [“the middle term prescribed in California’s [determinate sentencing law], not the upper term, is the relevant statutory maximum”].) Here, the court selected the upper term because of the aggravated nature of the robbery (Cal. Rules of Court, rule 4.421(a)(1)) and defendant was on parole at the time of the crime. (Cal. Rules of Court, rule 4.421(b)(4).)
In People v. Black (2007) 41 Cal.4th 799, 813 (Black II), the California Supreme Court held “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] 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 also noted “[t]he United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction” (id. at p. 818), and further held the criminal history exception to the required jury trial includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) Finally, Black II held that “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.) We are bound by the decision of the California Supreme Court in Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Manifestly, defendant’s parole status at the time of his new crime is an issue related to his criminal history “that may be determined by examining the records of [his] prior convictions.” (Black II, supra, 41 Cal.4th at p. 819.) Under Black II, that finding alone rendered defendant eligible for imposition of the upper term. (Cal. Rules of Court, rule 4.421(b)(4).) Thus, additional fact finding by the court, done in the course of deciding whether to impose the upper term for which defendant was eligible, did not violate defendant’s Sixth Amendment right to a jury trial.
The Court Did Not Abuse Its Sentencing Discretion
Defendant nevertheless contends the court abused its sentencing discretion by selecting the upper term for the robbery conviction. According to defendant, the court failed to consider all mitigating factors and relied on the aggravated nature of the robbery that was contrary to the verdict.
Defendant asserts the court ignored his passive participation in the crime. (Cal. Rules of Court, rule 4.423(a)(1).) But defendant is simply wrong in contending the court failed to consider defendant’s passive involvement as compared to Burnell and Clay. The court carefully recited its consideration of this factor, saying: “Mr. Alashanti’s involvement obviously was not to the degree of Mr. Burnell or not even to the degree of Mr. Clay. And I think it’s obvious that the jury could see that Mr. Alashanti was not like those other two either in his involvement in the most vicious part of the robbery, which is the deliberate shooting of the victim in this case. But also just in terms of his actions at the scene of the robbery were much different from the other two. I think that’s probably why he was not found guilty of the attempted murder even though he could have easily been found guilty of that just on the idea of the natural and probable consequences of a murder — or excuse me, of a robbery where the perpetrator of the robbery goes into the store with a loaded gun. [¶] But the other thing I think the jury could see when you had a joint trial is just in the nature of the people in this case. Mr. Alashanti was not anywhere near like Mr. Burnell. Mr. Burnell, I think in the overall evidence, came across as basically a cold-blooded person who would kill someone in the blink of an eye and feel nothing for it.”
Thus, far from ignoring the relative passive nature of defendant’s involvement, the court considered that factor and weighed it against other factors, such as the vulnerability of the victim and defendant’s recidivism, being that he was on parole at the time of the offense. “[D]etermination of the appropriate term is within the trial court’s broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]. ‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms.’ [Citation.] One factor alone may warrant imposition of the upper term [citation] and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation [citation].” (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Applying that standard, there was no abuse of discretion. The court’s sentencing choice was not arbitrary or irrational. Instead, it was well within the range of its lawful discretion.
The Restitution Order Was Proper
The court ordered defendant to pay $44,032.34 in victim restitution, payable $10,000 to Earhart’s estate and $34,000.32 to the victim’s compensation and government claim fund. Defendant argues he may not be ordered to pay restitution for crimes for which he was acquitted. Since he was acquitted of attempted murder and mayhem, defendant asserts he is only responsible for the $10,000 monetary value of the property taken in the robbery, but is not responsible for restitution relating to the injuries suffered by Earhart in the course of the robbery. Defendant’s argument is meritless, and he cites no apt authority in support of his argument.
Although we have found nothing in the record on appeal establishing Earhart died before defendant’s sentence was pronounced, it appears that was the case.
Section 1202.4, subdivision (a)(1) states: “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Italics added.) Further, the Legislature has provided that “[i]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f), italics added.) Plainly, Earhart suffered both an economic property loss and an economic personal injury loss “as a result of the defendant’s conduct,” i.e., his participation in the robbery, even though the jury acquitted him of the attempted murder and mayhem charges. Had the robbery not been committed, Earhart would not have been shot through the head. It’s as simple as that.
The single case cited by defendant in support of his improbable argument, People v. Richards (1976) 17 Cal.3d 614, involved a restitution order made as a condition of probation, and the Supreme Court’s discussion actually defeats defendant’s argument. There the court made the following observation. “A number of jurisdictions . . . have limited restitution to actual losses caused by the crime proved. California has not been so parsimonious. Restitution may exceed the losses for which a defendant has been held culpable.” (Id. at pp. 619-620, fn. omitted.) The Richards court merely held that victim restitution could not be ordered payable to a person not a victim of the defendant’s crime. Here, Earhart was a victim of the crime for which defendant was convicted. Moreover, and in addition to Richards being distinguishable on its face, the Supreme Court has subsequently disapproved the decision. (People v. Carbajal (1995) 10 Cal.4th 1114, 1126 [“grant of probation for a defendant convicted of fleeing the scene of an accident [may be conditioned] on payment of restitution to the owner of the property damaged in the accident”].) Accordingly, we reject defendant’s argument.
The Record is Insufficient to Make the Restitution Order Joint and Several
Defendant requests we order the victim restitution order modified to make it joint and several with Burnell and Clay. This request was not made in the court below, and, despite the Attorney General not objecting to defendant’s request, the appellate record is insufficient to make such an order.
Although a joint and several direct victim restitution order under section 1202.4, subdivision (f) is permitted (see People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535; People v. Madrana (1997) 55 Cal.App.4th 1044, 1050-1051), it is not mandated by the statute. In Blackburn, two defendants were ordered to pay precisely the same monetary amount for direct victim restitution. The Blackburn court noted “[i]t seems glaringly obvious” that the trial court intended the restitution liability to be joint and several. Acknowledging each defendant as a matter of law was entitled to credit for any actual payments made by the other, the court nevertheless modified the judgment “[t]o make sure [each defendant is credited for payments by the other] (though out of an excess of caution) . . . so as to provide expressly that the direct victim restitution ordered is joint and several.” (People v. Blackburn, supra, 72 Cal.App.4th at p. 1535.) In Madrana, the trial court had made its victim restitution order joint and several and the Court of Appeal held it was not error to do so.
Here, however, the direct victim restitution order in Burnell’s sentence is different from the direct victim restitution order in defendant’s sentence. Burnell was ordered to pay direct victim restitution in the amount of $47,000 per the minute order, $46,000 per the formal order for restitution, and $47,000 per the abstract of judgment. Burnell’s abstract of judgment makes the entire $47,000 victim restitution payable to the Restitution Fund (see Gov. Code, § 13964). On the other hand, the direct victim restitution order in defendant’s sentence was a total of $44,032.34, payable $10,000 to Earhart’s estate, and $34,000.32 to the Restitution Fund. We are not able to reconcile these orders as establishing compensation for the same economic losses, nor do we have any record of Clay’s conviction and sentence. If a joint and several restitution order were to be made, it should include all three defendants. These are matters that should have been handled in the trial court in the first instance, and the failure to raise the issue there necessarily waives the issue on appeal. The record is insufficient adequately to address the asserted error, if any.
We take judicial notice of Burnell’s sentence.
The actual amount announced by the court at the sentencing hearing was $46,100.
Defendant’s opening brief tells us, without any record reference, that Clay pleaded guilty.
There Was No Cumulative Error
Defendant argues that even if the individual errors were harmless, the cumulative effect of the individual errors compels reversal. But we have found no prejudicial error at all. There is nothing to cumulate.
Claims of Error Raised by Burnell Do Not Benefit Defendant
Defendant joins in the arguments made by co defendant Burnell in his separate appeal. (Case No. G032634.) In our separate opinion, we find no error in Burnell’s trial and judgment. Accordingly, nothing argued in Burnell’s appeal benefits defendant in his appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.