Opinion
F079148
09-28-2022
THE PEOPLE, Plaintiff and Respondent, v. CHAYSE JAMES CHERRY, Defendant and Appellant.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Benningson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Order Filed Date: 9/29/22
APPEAL from a judgment of the Superior Court of Kern County. No. BF173423A Brian M. McNamara, Judge.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Benningson, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
THE COURT:
It is ordered that the nonpublished opinion filed herein on September 28, 2022, be modified as follows:
On page 1, in the counsel listing for the Attorney General, delete "Brook A. Benningson" and insert "Brook A. Bennigson" in its place to correct the spelling of the last name.
Except for the modification set forth above, the opinion previously filed remains unchanged.
This modification does not effect a change in the judgment.
OPINION
DE SANTOS, J.
Appellant Chayse James Cherry was convicted following a jury trial of two counts of simple kidnapping (Pen. Code, § 207, subd. (a); counts 3 &4); two counts of second degree robbery (§ 212.5, subd. (c); counts 5 &6); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 7 &8); second degree burglary (§ 460, subd. (b); count 9); receiving stolen property (§ 496, subd. (a); count 11); and misdemeanor obstructing a peace officer (§ 148, subd. (a)(1); count 12). In a bifurcated bench trial, the court found true appellant had suffered a strike prior (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and a prison prior (§ 667.5, subd. (b)).
Further undesignated statutory references are to the Penal Code.
As to count 3, appellant was sentenced to the midterm of five years, doubled to 10 years due to the strike prior. As to count 4, he was sentenced to one-third the midterm of one year eight months, doubled to three years four months due to the strike prior. As to both counts 7 and 8, he was sentenced to consecutive terms of one-third the midterm of one year, doubled to two years due to the strike prior. The court stayed punishment as to counts 5, 6, 9, and 11 pursuant to section 654. Finally, as to count 12, he was sentenced to county jail for a period of one year, to be served concurrently to his prison sentence. The court also imposed a one-year prison prior enhancement. Appellant's aggregate prison sentence was 18 years 4 months.
Appellant raises several issues on appeal. He first contends his kidnapping and assault convictions were supported by insufficient evidence and must be reversed. He also challenges the admission of several pieces of evidence. He contends evidence of two uncharged prior burglaries were inadmissible character evidence; that a 911 call of a witness who did not testify at trial was inadmissible hearsay and admitted in violation of his right to confront witnesses (Crawford v. Washington (2004) 541 U.S. 36 (Crawford)); and a photograph showing appellant with a tattoo on his chest was inadmissible because its prejudicial effect outweighed its probative value. He also argues that even if the asserted trial errors were independently harmless, their cumulative prejudicial effect warrants reversal.
Appellant also raises several sentencing errors. He contends we should strike his prior prison enhancement pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136); that the court erred by declining to strike appellant's strike prior (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)); that the court erred by failing to stay sentence on counts 7 and 8 (the assault counts) under section 654, and, in the alternative, by failing to order concurrent sentences; and that the court erred by imposing fines and fees without finding appellant had the ability to pay them (People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas)).
In supplemental briefing, appellant argues he is entitled to resentencing under several pieces of new legislation enacted while this appeal was pending-Senate Bill No. 483 (2021-2022 Reg. Sess.; Senate Bill 483), Assembly Bill No. 124 (2020-2021 Reg. Sess.; Assembly Bill 124), and Senate Bill No. 567 (2021-2022 Reg. Sess.; Senate Bill 567). Respondent concedes the matter should be remanded for the court to strike the prison prior enhancement and for resentencing pursuant to Senate Bill 483 and does not contest appellant's entitlement to request relief under Assembly Bill 124 and Senate Bill 567.
We find the court erred by failing to stay punishment for counts 7 and 8 under section 654. We further conclude appellant is entitled to the ameliorative benefits of recent legislation. As such, we remand for resentencing in a manner consistent with the views expressed in this opinion. In all other respects, we affirm the judgment.
FACTS AND RELEVANT PROCEDURAL BACKGROUND
Information
This case involves a burglary perpetrated by three men that took place at a T-Mobile store while two employees, Susy Gonzalez and Erika Gomez, were present. The burglars took several cell phones from a storage locker in the back room and cash from the registers. Appellant was charged by information with two counts of kidnapping to commit robbery (§ 209, subd. (b)(1); counts 1 [against Gonzalez] &2 [against Gomez]); two counts of simple kidnapping (§ 207, subd. (a); counts 3 [Gonzalez] &4 [Gomez]); two counts of second degree robbery (§ 212.5, subd. (c); counts 5 [Gonzalez] &6 [Gomez]); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 7 [Gonzalez] &8 [Gomez]); second degree burglary (§ 460, subd. (b); count 9 [T-Mobile]); receiving a stolen vehicle (§ 496d, subd. (a); count 10 [vehicle belonging to Ruben Monarrez Vasquez]); receiving stolen property (§ 496, subd. (a); count 11 [property belonging to T-Mobile]); and misdemeanor obstructing a peace officer (§ 148, subd. (a)(1); count 12). It was further alleged that appellant had suffered a strike prior (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e) [§ 487, subd. (d)(2)]) and a prison prior (§ 667.5, subd. (b) [§ 487, subd. (d)(2)]).
Appellant's coparticipants were not charged in this information. One was facing charges in the juvenile system and the other was never identified.
Trial Evidence
On August 11, 2018, two men approached Ruben Monarrez Vasquez while he was outside watering his trees. One of the men started hitting Monarrez Vasquez and stole the keys to his white Toyota Sienna van. The other got into the van and started it, and at that time, the man hitting Monarrez Vasquez got into the van and they drove away. Monarrez Vasquez could not identify the men. The vehicle was valued at over $950.
On August 14, 2018, at around 9:00 p.m., appellant was with Willy Gregory at a gas station in a white van. While customer Therese White was inside the gas station, appellant reached into her vehicle and took her wallet and phone. The incident was captured on gas station surveillance footage, which was played for the jury.
On August 15, 2018, at approximately 10:00 a.m., Ana Cerda went into a T-Mobile store with her son, Justin Cerda, to pay her phone bill and get her phone repaired. Ana stated that before they entered the store, Justin seemed to greet someone who was in a white van. After they finished their business in the store, they left and got into their car.
Because Ana Cerda and Justin Cerda share the same last name, we subsequently refer to them by their first names. This is done solely to avoid confusion, and no disrespect is intended.
Shortly after Ana and Justin left the store, appellant, Gregory, and another man who remained unidentified throughout the course of the proceedings entered. The entire incident was captured on T-Mobile surveillance footage. Appellant was wearing a hoodie with the hood up, a surgical-type mask, black gloves, gym shorts, and two black Nike socks on his left foot, and a white cloth sticking out of his right sock, and was carrying a canvas-type bag. Upon entering, the unidentified man grabbed T-Mobile store manager Erika Gomez by the hair and, according to Gomez's testimony, held a firearm to the back of her head, and pulled her to the back of the store. Gregory briefly pointed a firearm toward Gomez, then turned to another T-Mobile store employee standing near the cash registers, Susy Gonzalez.
The individual who grabbed Gomez took her to a back room with a solid door, which Gomez had to enter a code in order to access, and no windows. The individual asked her to open the safe, but she informed him there was a 10-minute delay but that there were cell phones in the storage lockers. She testified she told him he could have the phones but he "just wouldn't let go" and "had [her] down." The individual began taking phones from the storage locker. Appellant then entered the back room and started putting phones from the storage locker in the bag. One of the devices taken was a "bait" GPS tracker designed to look like a brand-new cell phone. The device transmits location information that can be used by law enforcement. Gomez testified that during the encounter she was scared of dying and not seeing her son.
While Gomez was in the back room, Gonzalez was sitting behind the cash registers after Gregory turned the firearm on her. Gregory told Gonzalez to open the registers. When Gonzalez told him to put the gun away and that she would get the money, Gregory told her to "shut the fuck up" or he would "blow [her] brains out." Gonzalez opened the drawers because she was scared "for [her] life." Gregory took money from the registers; there was about $150 in each register. Gregory also took $50 from Gonzalez's makeup bag. Gonzalez testified that while Gregory was taking money from the registers, she could hear Gomez begging for her life and asking for her hair to be let go. Gonzalez was getting scared and then Gregory told her to stand up and go to the back. The distance was about 10 steps from the register to the back room. She went because Gregory was telling her to go back "with the gun."
Shortly after Gonzalez was taken to the back room, Gregory and the unidentified perpetrator ran out. At some point during the incident, appellant had taken Gomez's and Gonzalez's personal cell phones. After the other two perpetrators exited the back room, appellant gave Gomez's and Gonzalez's phones back to them and told them to wait until they left to call the cops before running out. It was later confirmed approximately eight to nine iPhones had been taken valued at $749-$1,000 each.
Ana, the T-Mobile customer, was still in the parking lot when she saw two men leaving the store and running toward a white van. She followed them in an attempt to get their license plate number but eventually lost them as they were driving "very, very fast." While she was attempting to get their license plate, Ana called 911 and described the van and location to the dispatcher.
While Ana was attempting to follow the white van, Justin ran into the store and told Gomez and Gonzalez that he knew the person at the register with Gonzalez from a juvenile camp. Gonzalez called 911 and gave general information about the incident, including that two of the perpetrators had guns and that witnesses saw the perpetrators flee in a while Toyota Sienna van. She then informed the dispatcher Justin knew one of the perpetrators and handed the phone to him. Justin told the 911 dispatcher that the perpetrator he knew was Willy Gregory.
Kern County Deputy Sheriff Mason Sizemore responded to the T-Mobile store. He had conducted a records check of Gregory based on Justin's identification and put together a six-pack for Gonzalez to review. Gonzalez identified Gregory in the photo lineup.
Deputies from the Kern County Sheriff's office were notified that three Black males were involved in a robbery and fled in a white Toyota Sienna van. They were dispatched to a location on Niles Street because the bait GPS tracker that had been taken had pinged there. When Deputy Sheriff Christopher Lasater reported to the Niles Street location, he observed appellant, who he described as a light-skinned Black male with no shirt, gym shorts, and a white t-shirt in his hands, running across the street near the location. Lasater parked 30 to 40 yards away and told appellant to "come here." Appellant started to walk toward Lasater, who may have drawn his firearm based on the report that the robbery was armed, and appellant ran past him. Appellant then ran in an attempt to avoid detention through yards at a nearby apartment complex, and at one point running on top of the roof, but eventually ended up in a woman's backyard, where he was apprehended and taken into custody.
The woman who found appellant in her yard, Plautila Lopez, testified that appellant was hiding, and she called the police. She told the police appellant told her not to call the police and if the police came, not to tell them he was there. He appeared to her to be trying to give her money.
At the time of appellant's arrest, he was wearing two black Nike socks on his left foot and had a white cloth hanging out of his right sock. He was not wearing a hooded sweatshirt, and he did not have any bags, a mask, any gloves, cell phones, or weapons. He had $155 cash in one of his socks.
An iPhone box still wrapped in plastic was found near the Niles Street location on the sidewalk. The white Toyota Sienna van that belonged to Monarrez Vasquez was also located at the Niles Street location. When law enforcement conducted a search of the van, they found White's California I.D., driver's license, Social Security card, and a Visa card, as well as a new cell phone still in shrink wrap. Fingerprints matching appellant's were found on the exterior passenger side of the white van. Fingerprints matching Gregory's were found on the iPhone box located at the Niles street location.
Gregory was eventually arrested at his last known address, where the GPS device had also pinged. An unopened iPhone was found in a vehicle at the residence registered to Gregory's relative, and Gregory was in possession of the key fob to the vehicle. Inside Gregory's residence, law enforcement located a LG cell phone box with a T-Mobile insignia on it.
While in jail, appellant made several phone calls to a woman. Appellant was discussing his bail with her and stated he needed to "get [his] money or it's bad." The woman asked, "You gave it to him or something, or what?" to which appellant responded, "Yeah he had it when shit went sour." They then had the following exchange:
"FEMALE: Your what-oh when it went sour?
"[APPELLANT]: Y eah and he's the one that had the money at the ...
"FEMALE: So where's he at-he's out? How's he out?
"[APPELLANT]: Oh me and, um, [unintelligible], I mean, I don't know. I wasn't-I wasn't [unintelligible] I don't know how he's out, I don't know the nigga.
"FEMALE: You don't know him? [Unintelligible], you don't know him?
"[APPELLANT]: What do you mean by-what do you mean why he's out, he didn't even do nothing, he's not in trouble.
"[FEMALE]: Oh you're in trouble.
"[APPELLANT]: Babe, I swear to God."
Appellant went on to tell the woman she needed to "learn how to talk" and that she acted like she didn't talk to her "daddy over the phone" and when she asked for clarification, he said, "I'm sayin' I can't say" and that she acted like she did not know that. She told appellant she forgot because "he" had a whole cell to himself. She went on to ask if appellant was "close with this boy or what" and appellant responded, "it's a homie. I'm tellin' you." Appellant then told her to "Make your mind to tap in, with him," to which she responded that "he" said he was going to call her back. Appellant told her "if he don't got the loot, just tell him to give you everything that's mine."
During a subsequent call, appellant asked the woman "[w]hat happened" to which she responded, "Oh so, um, you know that dude Munch? He said he didn't have it." Appellant eventually told the woman he could not "really talk to her" and told her he would write to her.
During another call, appellant referenced the charges and that it looked bad but when he "got locked up for the gun store[,]" "they tried to give [him] 31 years."
During another call, he told her that he was going to get paperwork from his lawyer soon so he could see "if niggas told, I'm gonna see everything."
The prosecution presented evidence of two uncharged burglaries, one from April 2017 and one from April 2016, proffered to show appellant acted with the same intent with regard to the burglary charged in count 9.
Kern County Deputy Sheriff Carly Snow testified that on April 22, 2017, at approximately 5:30 p.m., she was dispatched to a marijuana shop. The windows had bars over them, and one of the bars had been pried off and the window was broken. A television and marijuana press were missing. Snow later located the stolen television at appellant's house. Video surveillance showed three to four Black males going into the business, stealing, and leaving the business. Snow further testified the business was closed at the time and there were no employees present. There was no evidence that guns were used in the commission of the crime.
Kern County Sheriff's Office Sergeant Stephen Wells testified that on April 17, 2016, at approximately 3:52 a.m., he was dispatched to a gun store in response to an alarm. Three individuals were inside the "storage" or "warehouse" area of the store where "lots of firearms and lots of ammunition" were stored. In a surveillance video, Wells observed the individuals "manipulating firearms." At one point, Wells was securing a "steel man door" between the storage area and the public area of the store and he saw the door handle start to open toward his location. Wells was "absolutely ready to pull the trigger on whoever came through that door." He testified he took "the slack" out of his trigger and was ready to shoot the person, but the person closed the door before Wells "had to take their life."
There were about five to six deputies on scene during this incident, and they were attempting to get the people inside the warehouse to safely exit and surrender. The deputies made more than 50 announcements, but the individuals did not comply. Ultimately the SWAT team responded. Wells identified appellant as one of the perpetrators.
Kern County Deputy Sheriff David Chandler also testified about this incident. Upon his arrival at the scene, he observed a vehicle parked the wrong way on the side of the road in front of the driveway to the gun store. An individual with the last name Rodriguez was in the passenger seat of the vehicle, inebriated, and the vehicle was running. Chandler decided to handcuff him and put him in his vehicle because he figured he had something to do with the burglary.
Chandler also testified he saw the individuals inside the business loading weapons with ammunition and positioning guns in certain areas of the warehouse. He opined they were "ready for us to-when we-if we made entry, for a bit of a mess." The interaction lasted several hours. Towards the end of the encounter, Chandler observed one of the individuals, who he later identified as appellant, running on the roof or attic area. Appellant came through the roof of the interior of the business and then fell through. The SWAT team had to use gas to force the perpetrators out. Chandler testified he later observed the roll-up door into the business had been pried open and the locks were cut. A pair of welder's gloves were near the loading door.
The prosecutor asked Chandler whether there were any firearms located in the vehicle, and the court overruled the defense's objection to the relevance of the question. Chandler responded that he found a sawed-off .22 long rifle and ammunition, and the court immediately stated: "In fairness, ladies and gentleman, the Court will change its ruling, given what the Court heard there. Disregard that last statement by the witness at this time. I apologize. The Court ruling, you did as requested. You're not to consider that answer for purposes of why we're here or to this evidence, particularly."
Defense counsel moved for a mistrial based on Chandler's testimony about the shotgun. The court denied the motion, finding that any prejudice was cured by the court's immediate admonition to the jury. Appellant does not challenge the court's denial of the mistrial motion on appeal.
Verdict
The prosecution's theory was that appellant was guilty of the burglary and robberies as a direct perpetrator and guilty of the kidnapping and assault with a firearm counts under an aiding and abetting or uncharged conspiracy theory.
The jury was instructed on the definition of aiding and abetting (CALCRIM No. 401). They were further instructed, if they determined appellant was guilty of robbery or burglary, that a coparticipant committed kidnapping and assault with a firearm, and that kidnapping and assault with a firearm was a natural and probable consequence of the commission of the robbery or burglary, they could find appellant guilty of kidnapping and assault with a firearm. (CALCRIM No. 402.) The jury was also instructed with the definition of an uncharged conspiracy and CALCRIM No. 416 that a member of a conspiracy is responsible for the crimes he or she conspires to commit and any act of any member of the conspiracy, if it is done to further the conspiracy, and is a natural and probable consequence of the common plan or design of the conspiracy. The jury was instructed that if they found appellant conspired to commit burglary or robbery, and a member of the conspiracy committed kidnapping and/or assault with a firearm, and kidnapping and/or assault with a firearm were natural and probable consequences of the common plan or design of the crime the defendant conspired to commit, they could find him guilty of kidnapping and assault with a firearm. (CALCRIM No. 417.)
Appellant's primary defense was that he was not present at the T-Mobile store during the incident, as no one was able to directly identify him, and his apprehension at the Niles Street location was based merely on the fact that he matched the description of the robbers as a young Black man.
The court granted appellant's motion for a directed verdict pursuant to section 1118.1 as to counts 1 and 2. The jury returned guilty verdicts for counts 3, 4, 5, 6, 7, 8, 9, 11, and 12 and a not guilty verdict for count 10.
DISCUSSION
I. Trial Issues
A. Sufficiency of the Evidence
In assessing a claim of insufficiency of the evidence, we review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal on insufficiency of the evidence is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)
1. Kidnapping (Counts 3 &4)
Appellant argues his kidnapping convictions must be reversed because there is no substantial evidence to establish that either Gonzalez or Gomez were moved a "substantial distance" to satisfy the asportation element of simple kidnapping. We disagree.
To prove the crime of simple kidnapping, the prosecution must prove:" '(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance.'" (People v. Hartland (2020) 54 Cal.App.5th 71, 77.)
In determining whether a victim is moved a substantial distance (the asportation element), the jury "may consider more than actual distance." (People v. Martinez (1999) 20 Cal.4th 225, 235 (Martinez), overruled on other grounds by People v. Fontenot (2019) 8 Cal.5th 57.) The Supreme Court in Martinez explained that the jury should consider the totality of the circumstances, including, in addition to actual distance, whether the movement "increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Martinez, at p. 237.) When a case, such as this one, involves an "associated crime," the jury should also consider "whether the distance a victim was moved was incidental to the commission of that crime" in determining whether the distance was substantial. (Ibid.) "[A]n 'associated crime,' as that phrase was used by the Martinez court, is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her Will." (People v. Bell (2009) 179 Cal.App.4th 428, 438-439 (Bell).)
Here, the jury was instructed with CALCRIM No. 1215, which articulates these concepts.
The jury was instructed that to find appellant guilty they must find he moved the other person or made the other person move a substantial distance. "Substantial distance" was defined to the jury as "more than a slight or trivial distance." The jury was further instructed: "In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of the robbery, whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."
Appellant first contends as to the kidnappings of both Gomez and Gonzalez that the movements were merely incidental to the robberies, and, as a matter of law, cannot establish the asportation element. In addition, as to the kidnapping of Gonzalez, appellant alleges the distance she was moved-approximately 10 steps, according to her testimony-was too short as a matter of law to support the asportation element. We reject appellant's contentions.
First, we reject appellant's contention that if a movement is incidental to an associated crime, it cannot, as a matter of law, constitute a substantial distance. Whether movement is incidental to an associated crime is but one factor among many to consider in determining the substantiality of the movement under the totality of the circumstances test enunciated in Martinez. (Martinez, supra, 20 Cal.4th at p. 237; Bell, supra, 179 Cal.App.4th at p. 440 ["Put more directly, one of the additional factors to be considered in determining the movement's substantiality is whether the movement of the victim was for a distance beyond that which was incidental to the commission of an associated crime."].) As the appellate court in Bell explained, this factor "is not a separate threshold determinant of guilt or innocence, separated from other considerations bearing on the substantiality of the movement ..." (Bell, at p. 440.)
Notably, the Bell court found the then-current version of CALCRIM No. 1215 was misleading in that it stated," 'In order for the defendant to be guilty of kidnapping, the other person must be moved or made to move a distance beyond that merely incidental to the commission of [the associated] crime.'" (Bell, supra, 179 Cal.App.4th at p. 440.) The Bell court held the form instruction was erroneous to the extent it allowed the jury to interpret the instruction as requiring it to acquit a defendant if it found the movement was compelled in the course of committing the associated crime, "regardless of the increased risk of danger to the victim, or, for that matter, that the distance was 'substantial' by any reasonable measure." (Ibid.) The Judicial Council subsequently adopted the change to the instruction suggested by the Bell court to include "whether the distance the other person was moved was beyond that merely incidental to the commission of" an associated crime as bracketed language to be included in the list of factors the jury was to consider. This is how the jury in the present case was instructed. We note appellant does not contend the jury was misinstructed or that CALCRIM No. 1215 in its current form is a misstatement of the law.
Appellant relies on People v. Williams (2017) 7 Cal.App.5th 644 (Williams), where the appellate court reversed a simple kidnapping conviction under circumstances similar to those here. In Williams, a security guard was pushed from the front of a store to the break room where she was ordered to lie face down on the floor and an employee was pushed from the front of the store to the vault room where he was ordered to open the safe and then ordered to go to the break room, where he was told to lie face down. (Id. at p. 671.) The security guard and employee were then told to count to 100 while the robbers left the store. (Ibid.) The Williams court found the distance the security guard and employee were moved was incidental to the commission of the robbery and reversed without commenting upon any other contextual factors. (Id. at pp. 671-672.) To the extent Williams suggests that if the movement is only incidental to the robbery, a defendant cannot be convicted of simple kidnapping, we respectfully disagree for the reasons set forth.
We find the jury could have, in applying the totality of the circumstances, reasonably concluded the movement in the present case was sufficient to establish the asportation element in both kidnapping counts.
First, both victims were moved from the public area of the T-Mobile store to the back room, which was obscured from public view. This increased their risk of harm. (See People v. Shadden (2001) 93 Cal.App.4th 164, 169 ["where a defendant moves a victim from a public area to a place out of public view, the risk of harm is increased even if the distance is short"].)
We acknowledge People v. Shadden, supra, 93 Cal.App.4th 164 deals with aggravated kidnapping, but we nonetheless find its discussion on this element instructive, as whether movement increased risk of harm is both an element of aggravated kidnapping as well as a factor for consideration in the context of simple kidnapping.
In addition, the movement of Gomez increased the risk of psychological harm in that she was taken to the back room alone with the perpetrators and had no idea if they intended to hurt her. After she redirected the perpetrators from the time-delay safe to the storage locker, her assistance was no longer needed, yet the surveillance footage shows that Gomez was essentially trapped in the corner of the room because the unidentified perpetrator and appellant were blocking her as they worked to get the cell phones from the locker into the bag. The movement and subsequent blocking prevented Gomez from being able to escape. In addition, it separated her from Gonzalez, increasing the perpetrators' opportunity to commit more crimes. The movement further reduced the likelihood that a passerby or potential customer would detect the crime.
As to Gonzalez, while the distance she was moved was shorter than the distance Gomez was moved, the jury could have nonetheless found she had been moved a substantial distance based on contextual factors. Again, she was moved from a public area to the back room-a place obscured from public view-increasing her risk of harm. Leading up to this movement, Gregory had ordered Gonzalez to open the cash register drawers at gunpoint and threatened to shoot her. While Gregory was clearing out the drawers, Gonzalez heard Gomez begging for her life from the back room. By moving Gonzalez from the cash registers to the back room, Gregory increased Gonzalez's risk of suffering psychological harm in that she had reason to believe they may have intended her harm, and, in addition, ensured she did not attempt to escape or notify law enforcement.
We reject appellant's argument that the distance Gonzalez was moved-about 10 steps according to her testimony-was an insufficient distance as a matter of law to support the asportation element. To support this contention, he points to the statement in Martinez that "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Martinez, supra, 20 Cal.4th at p. 237.)
As the Martinez court explained, "limiting a trier of fact's consideration to a particular distance is rigid and arbitrary, and ultimately unworkable." (Martinez, supra, 20 Cal.4th at p. 236.) Accordingly, we decline to do what our high court has resisted doing and will not conclude, as a matter of law, that a movement of 10 steps is insufficient to establish asportation. It is for the jury to consider, and decide, if the circumstances of the victim's forced movement was" 'substantial in character'" sufficient to establish the asportation element required for simple kidnapping. (See id. at p. 237.)
As respondent points out, 10 steps is comparable to the distance found to be substantial in People v. Arias (2011) 193 Cal.App.4th 1428, 1435 (Arias). In Arias, the appellate court affirmed a kidnapping conviction in which the victim was moved 15 feet at gunpoint from outside to inside his apartment. (Id. at p. 1431.) In applying the factors set forth in Martinez, the Arias court found that since the defendant moved the victim from a public place into a secluded place, the jury could have concluded 15 feet was a substantial distance because it increased the risk of harm and decreased detection of any other crime the defendant may have committed. (Arias, at p. 1435.)
Appellant does not meaningfully distinguish Arias from the present case; appellant only cites to Justice Armstrong's dissent, but we are not persuaded that Arias is substantively distinguishable. Justice Armstrong's dissent was based on a disagreement of the majority's interpretation of the factual circumstances. (Arias, supra, 193 Cal.App.4th at p. 1436 (dis. opn. of Armstrong, J.).) Justice Armstrong disagreed that the evidence supported the victim was moved by gunpoint, and further found, in applying the totality of the circumstances analysis, the distance was not substantial based, not only on the "very short distance involved," but "the fact that [the victim] simply walked down the hall, and the absence of evidence of an increased risk of harm." (Id. at pp. 1447-1448.) In other words, Justice Armstrong's dissent does not support appellant's proposition that 10 steps is not substantial as a matter of law. Rather, it underscores that the jury must consider the totality of the circumstances.
For the forgoing reasons, we conclude appellant's convictions in counts 3 and 4 are supported by sufficient evidence.
2. Assault with a Firearm (Counts 7 &8)
Appellant argues his convictions in counts 7 and 8 must be reversed because there was no evidence the guns used were real or loaded. We disagree.
Section 245, subdivision (a)(2)," 'punishes "[a]ny person who commits an assault upon the person of another with a firearm." Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." [Citation.] "Once a defendant has attained the means and location to strike immediately he has the 'present ability to injure.'" '" (People v. Covarrubias (2016) 1 Cal.5th 838, 890; see §§ 240, 245, subd. (a)(2).) "Assault with a deadly weapon can be committed by pointing a gun at another person." (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) Nonetheless," '[a] long line of California decisions holds that an assault is not committed by a person's merely pointing an (unloaded) gun in a threatening [manner] at another person.' [Citation.] However, the fact that the gun was loaded may be inferred from circumstantial evidence, and [courts] will uphold an assault conviction if the inference is reasonable." (People v. Penunuri (2018) 5 Cal.5th 126, 147.) "A defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a loaded weapon." (People v. Rodriguez (1999) 20 Cal.4th 1, 13.)
Here, substantial evidence establishes the gun used by Gregory was real and loaded. The jury could reasonably infer the gun was real and loaded based on Gonzalez's testimony that Gregory threatened to "blow [her] brains out," coupled with her detailed description of the gun. Gonzalez described the gun as "a little chrome gun" that was "pretty thick" and not "a fake chrome-like toy" but made of "legitimate ... metal." The jury could also rely on their own viewing of the surveillance footage, which included unobstructed images of Gregory wielding a small silver gun matching Gonzalez's description.
As for the gun used by the unidentified perpetrator on Gomez, the surveillance footage was less clear. However, Gomez testified confidently that a gun was held against her head, which the surveillance footage does not clearly contradict. She testified she was familiar with guns and could tell the difference between a real and fake gun. Her statement that a gun was pointed at her was consistent with statements she made close to the time of the incident, including her statement to Gonzalez while she was on the phone with 911 and in her testimony she told law enforcement a gun was pointed at her. Determining Gomez's credibility was within the sole province of the jury, and we do not reevaluate her credibility here. (Evid. Code, § 312; People v. Stewart (2000) 77 Cal.App.4th 785, 790.) Based on her testimony, the jury could have reasonably concluded the gun was real. We also conclude the jury could have reasonably concluded the gun was loaded. The jury could have easily concluded from the evidence presented that the burglary was planned and that Gregory's gun was loaded. Considering these circumstances, the jury could have also reasonably concluded part of the plan included arming themselves with loaded weapons. The jury could have inferred that because the perpetrators presumably had a reason for one gun to be loaded, they had similar motivation for the other gun to be loaded as well; for example, they may have contemplated the possibility that they would encounter another armed individual or a resisting victim. In any event, based on Gomez's testimony that the gun was held up against her head, the jury could have also reasonably found the unidentified participant had the present ability to injure Gomez by using the firearm as a bludgeon, rendering a finding the gun was loaded unnecessary. (People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6.)
For the forgoing reasons, we conclude appellant's convictions in counts 7 and 8 are supported by sufficient evidence.
B. Admission of Uncharged Prior Conduct
Appellant argues the court erred by admitting the evidence of the uncharged April 2016 and April 2017 burglaries. We agree the court erred but conclude the error was harmless.
1. Relevant Background
The People sought to introduce evidence of five prior uncharged burglaries to prove appellant's "knowledge, common plan or preparation, motive, and intent in robbing T-Mobile, and to show lack of mistake or accident."
Defense counsel objected, stating the sole trial issue was identity, not intent. Defense counsel reasoned that the proffered prior acts did not meet the requisite degree of similarity to the charged offenses in order to be admissible to prove identity.
Over the defense's objection, the trial court decided to admit two of the proffered burglaries-the April 17, 2016 and April 22, 2017 incidents-as to the issue of intent only. The court found the incidents "sufficiently similar to the charged crime in Count 9 to show that the defendant acted with the same intent," as "[b]oth incidents involve burglary of commercial enterprises, and several perpetrators were involved in each incident involving the uncharged acts." The court found the probative value of the incidents was high as they showed appellant committed the charged crime in count 9 according to the same intent and the crimes were not particularly inflammatory, would not take a substantial consumption of time, and jury confusion was unlikely because the court would instruct the jury on the uncharged acts that they were only for the limited purpose of proving appellant acted with similar intent for committing the charged crime in count 9.
Evidence of the April 2016 and April 2017 burglaries was presented at trial as described, ante.
Prior to Snow's testimony, the trial court instructed the jury as follows: "We're going to hear evidence that's coming in now. Evidence is being introduced for the purposes of showing that [appellant] committed uncharged acts other than that for which [appellant] is on trial. Such evidence, if believed, is not received and may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. Such evidence may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent, which is a necessary element of the offense which is charged in this case in Count 9, second-degree burglary. For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You're not permitted to consider such evidence for any other purpose. In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense." The court further informed the jury this instruction applied also to Wells's and Chandler's testimony.
Following the evidence portion of the trial, the court instructed the jury with CALCRIM No. 375 as follows:
"The People presented evidence that the defendant committed other offenses of second degree burglary that were not charged in this case.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether:
"The defendant acted with the intent to commit theft when he entered the T-Mobile store.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and and the charged offense in Count 9- second degree burglary.
"Do not consider this evidence for any other purpose.
"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Second Degree Burglary (Count 9). The People must still prove the charge beyond a reasonable doubt."
During closing argument, the prosecutor commented on the uncharged acts evidence as follows: "Those two incidents are only to be used in one way in this case, and that is just to make sure that it is specifically clear that you must use them only in one way. You can't use them in any other way, and so there's a jury instruction specifically for that so that way you're just limited in why you were presented evidence of these two other incidents. And what that is for is to show intent in this case, and that's the only reason you were presented the evidence for those two incidents, and that's the only way that you can use those two incidents here in this case." The prosecutor went on: "Make sure that is the only analysis for you, that looking at those two prior incidents, does that show that [appellant] would have had the same intent here in this case and use that to show his intent here in this case. It's specifically telling you you can't use it for character-type evidence, like he's a bad guy and did it back then so he did it here. You absolutely cannot use it in that way. I just need to make sure that's very, very clear."
Defense counsel argued the main issue in the case was identity and that appellant was not present at the T-Mobile store on the day of the incident. As to the uncharged act evidence, defense counsel argued "when it comes to intent of the people in that T-Mobile, that's never been an issue. The issue has always been identity, not intent. So when it comes to any prior contacts, that's not even relevant to ultimately the identity in this case. So I'd ask that you completely ignore the two prior occasions or uncharged act that was presented in this case." Defense counsel went on to say: "You see the part that I highlighted is you have to look at the similarity or lack of similarity between the uncharged offenses and the charged offense in Count 9, which is second-degree burglary. And the reason when the witnesses testified about those cases I asked them, 'Well, was the business closed or open?' 'Were any employees there?' Again, to show there's nothing similar to the accusations in this case. And, again, because intent has never been at dispute in this case, I ask you to completely ignore any prior uncharged acts and focus instead on identity in this case."
In the prosecutor's rebuttal argument, he argued the defense was arguing "this was a series of random acts and that there was no plan; and so, obviously, intent is at issue with that without saying the word 'intent.'" He asked the jury to consider all the evidence, including the uncharged acts evidence.
2. Analysis
On appeal, we presume the trial court's evidentiary ruling was correct, and appellant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Trial courts have broad discretion in determining the admissibility of evidence and we review challenges to the admission of evidence for abuse of discretion. (People v. Jackson (2016) 1 Cal.5th 269, 320-321.) Under this standard, the court's ruling"' "will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)
Evidence of prior misconduct is generally inadmissible to prove conduct on another specified occasion or to prove a person's disposition to commit such an act. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1101, subdivision (b) is an exception to this general rule, providing that evidence of specific prior acts may be admitted," '" 'when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.'" '" (People v. Scully (2021) 11 Cal.5th 542, 586.) Evidence admitted under Evidence Code section 1101, subdivision (b) is also subject to analysis under Evidence Code section 352. (Evid. Code, § 1101.) Evidence Code section 352 provides the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)
In support of appellant's argument the uncharged acts presented here were inadmissible, he cites People v. Lopez (2011) 198 Cal.App.4th 698 (Lopez). In Lopez, the defendant was convicted of several counts of burglary, using an altered, stolen, or counterfeit credit card, and petty theft. (Id. at pp. 701-702.) At trial, the defendant had objected to the introduction of evidence of a prior car burglary and car theft. (Id. at p. 713.) On appeal, the defendant argued the evidence was irrelevant to any contested issue at trial, and was only probative to demonstrate that he was a thief disposed to commit the charged crimes. (Ibid.) Specifically, with regard to the charged crime of first degree burglary, the defendant argued the prior uncharged acts evidence was inadmissible as to his intent because, if he indeed committed the act alleged, "his intent in doing so could not reasonably be disputed, that is it was a 'foregone conclusion,'" rendering the uncharged act evidence irrelevant. (Id. at p. 714.)
The Lopez court began its analysis by setting forth principles regarding admission of uncharged acts as explained by our Supreme Court. The Lopez court explained that" '[e]vidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. "In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it." '" (Lopez, supra, 198 Cal.App.4th at p. 714, quoting People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt).) The Lopez court noted that uncharged act evidence"' "is so prejudicial that its admission requires extremely careful analysis" '" (Lopez, at pp. 714-715, quoting Ewoldt) and that due to the "inherent risks" of admitting such evidence,"' "uncharged offenses are admissible only if they have substantial probative value." '" (Lopez, at p. 715, quoting People v. Foster (2010) 50 Cal.4th 1301).
Applying these principles, the Lopez court concluded the evidence of the uncharged offenses presented in the case before it "did not have substantial probative value that outweighed its inherent prejudice." (Lopez, supra, 198 Cal.App.4th at p. 715.) The Lopez court explained, "Evidence regarding the [charged] burglary showed that someone entered the kitchen of the ... residence and took two purses. Assuming appellant committed the alleged conduct, his intent in so doing could not reasonably be disputed-there could be no innocent explanation for that act. Thus, the prejudicial effect of admitting evidence of a prior car burglary and prior car theft outweighed the probative value of the evidence to prove intent as to the ... burglary charge." (Ibid.) Finally, the Lopez court summarized its holding: "Simply put, evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute; the prejudicial effect of the evidence of the uncharged acts outweighs its probative value to prove intent as it is cumulative regarding that issue." (Ibid.)
Respondent fails to address Lopez in their briefing. We find Lopez persuasive and analogous to the present case. Similar to the charged crime in Lopez, appellant's intent in committing the burglary "could not reasonably be disputed." The crime of burglary requires entry into a structure, with intent to commit larceny or a felony. (§ 459.) Here, surveillance video clearly shows appellant entering the T-Mobile store, masked and wearing a hoodie in the summer, with a canvas bag that he ultimately filled with cell phones taken from the storage locker. Upon entering, appellant and his coparticipants acted immediately and with purpose. Based on this footage, it cannot "reasonably be disputed" from the video appellant had the requisite intent to commit a theft when he entered the store. The prior burglaries thus were cumulative as to intent and therefore their probative value did not outweigh the inherent prejudice of the admission of prior bad acts nor the time spent on them in the trial and potential confusion to the jurors. We emphasize, as the Lopez court did, that" '[a]dmission of other crimes evidence cannot be justified merely by asserting an admissible purpose.'" (Lopez, supra, 198 Cal.App.4th at p. 716.) The evidence must" '" 'tend[] logically, naturally and by reasonable inference' to prove the issue upon which it is offered; [be] offered upon an issue which will ultimately prove to be material to the People's case; and [not be] merely cumulative with respect to other evidence which the People may use to prove the same issue." '" (Ibid.)
We find under the circumstances of the present case that the admission of the evidence of prior burglaries was an abuse of discretion.
Appellant also argues the admission of evidence of the prior burglaries violated his right to due process. Respondent contends appellant forfeited this claim by failing to object on this ground below. Appellant responds by asserting, without much argument, that counsel was ineffective for failing to object. We decline to find forfeiture and need not address appellant's ineffective assistance of counsel claim, however, because appellant's claim fails on its merits.
Federal due process is offended only if admission of the irrelevant evidence renders the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.) We cannot conclude the admission of the evidence here rose to that level.
Appellant relies primarily on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 (McKinney) to support his due process claim. This case does not assist him. First, we are not bound by the rulings of the lower federal courts. (People v. Cleveland (2001) 25 Cal.4th 466, 480.)
Further, McKinney is distinguishable. In McKinney, the defendant was charged with killing his mother with a knife that was never found. A large amount of evidence (more than 60 pages of testimony) was presented about the defendant's "fascination" with knives, including that he was proud of his knife collection, occasionally strapped a knife to his body while wearing camouflage pants, and once used a knife to scratch the words" 'Death is His'" on a dormitory closet door. (McKinney, supra, 993 F.2d. at pp. 1381-1382, 1386.) The McKinney court concluded the evidence was inadmissible character evidence and further that it met the threshold requirement for whether admission of evidence can violate due process in that "no permissible inferences" could be drawn from the evidence. (Id. at pp. 1382-1384.) The McKinney court concluded the evidence in that case rendered the trial fundamentally unfair and thus violated due process because the evidence was "emotionally charged," not relevant to the questions before the jury, not "cumulative or insignificant," pervasive throughout the trial, and because the case against the defendant based on relevant evidence was solely circumstantial and not "weighty." (Id. at pp. 1385-1386.)
Assuming without concluding there was no permissible inference to be made from the uncharged acts evidence, we do not find the evidence analogous to that presented in McKinney. Unlike the evidence in McKinney, the uncharged acts evidence was not a large part of the prosecution's case against appellant nor "pervasive" throughout the trial. It was contained in one portion of the trial, and the court made it clear to the jury the evidence was coming in for a specific purpose and expressly not to be used as character evidence. Further, as we explain in more detail in our harmlessness analysis, the case against appellant, excluding the uncharged acts evidence, was strong. We find no due process violation.
Finally, we look to whether the error was harmless. We conclude that it was. Because we reject appellant's due process argument, we assess harmlessness under the state law test: "[S]tate law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida, supra, 37 Cal.4th at p. 439; accord Lopez, supra, 198 Cal.App.4th at p. 716.)
People v. Watson (1956) 46 Cal.2d 818.
Though we find the uncharged acts were erroneously admitted, and incidentally, some prejudice inherent from the admission of the uncharged offenses arose, we conclude, under the facts and circumstances of this case, a more favorable result absent the admission of the evidence was not reasonably probable.
First, the court correctly and thoroughly instructed the jury as to how they were permitted to use the uncharged acts. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1023 ["[A]ny prejudicial impact from admission of the prior flight evidence was nullified by the court's limiting instruction directing the jury that it could not consider such evidence for the purpose of finding propensity."].) We presume the jury adhered to the court's instructions. (People v. Adcox (1988) 47 Cal.3d 207, 253.) In addition, both the prosecutor and defense attorney underlined this point particularly thoroughly.
Though appellant argues one of the main issues at trial was appellant's identity, the evidence connecting appellant to the crime was strong. Appellant was found in the area the "bait" GPS tracker pinged; was wearing two black Nike socks on one foot and a white cloth in the sock of his other foot, in the same style as the perpetrator in the surveillance footage; had $155 cash on him, which testimony showed was how much one of the register drawers had in it; was with Gregory the night before the incident in the van that was used in the commission of the crimes; and made statements in jail calls that could reasonably be interpreted as inculpatory.
Appellant contends the kidnapping and assault counts involved close factual calls that the uncharged acts evidence could have impermissible tipped the jury toward conviction, citing his sufficiency of the evidence arguments on appeal. As we have explained, however, we find the evidence sufficient to support the convictions, and it does not appear the jury was unduly prejudiced against appellant given its verdict. The jury's not guilty verdict as to count 10 indicates they deliberated each count separately and did not convict appellant merely because he had previously committed bad acts.
We find the court's error in admitting the uncharged burglaries from April 2016 and April 2017 to be harmless.
C. Admission of Justin Cerda's Statement on 911 Call
Appellant argues the court erred by admitting Justin's statement on the 911 call because it was inadmissible hearsay and violated appellant's right to confront witnesses. We disagree.
1. Relevant Background
After appellant and the other perpetrators left the store, Gonzalez called 911. A few minutes into the call, she handed the phone to Justin. Justin stated that he recognized one of the perpetrators, the driver of the van, and that his name was Willy Gregory. Justin said Gregory was in Camp Owen with him and was 17 or 18 years old.
Appellant moved in limine to exclude all 911 calls based on "hearsay, Evidence Code Section 352; Evidence Code [section] 1054, et seq.; lack of foundation[,] improper character evidence (Evid. Code § 1101(a)); and [violation of his right] to confrontation" under Crawford. The prosecutor argued that the 911 calls fell under "the spontaneous statement, excited utterance exceptions to the hearsay rule." The prosecutor further represented no Crawford issues arose because he anticipated the declarants on the 911 calls would be testifying. The court ruled the 911 calls, including the one on which Justin could be heard, admissible.
During the course of the trial, it was discovered the prosecution was unable to successfully subpoena Justin despite making numerous attempts. After it was determined Justin would not be testifying, appellant renewed his hearsay objections and lodged an objection under Crawford.
The court revisited its prior hearsay ruling, stating: "[T]he Court does find there is inherent reliability as to hearsay, given the combination of the video, combination of the fact that the person identified is not the defendant. He doesn't wear a mask, and that's confirmed in and of itself. Given the fact we see a video, we can combine it with what was stated, et cetera, and the combination of the two people, given the testimony of the mother who made the communication between certainly one of the people and her son. Given that combination, we find it inherently reliable." The court went on to state that it was clear Justin was a witness and had to "deal with an emotional situation." The court concluded the 911 call was admissible under Evidence Code section 1240.
As to whether the statements were testimonial in context of the question whether they were admissible under Crawford, the court stated, "[w]e consider here the circumstances, requisite formalities, solemnity of the situation presented here. He was given the phone by an employee to relate what he had seen, and that was given as part of the testimony.... Under the situation presented, the Court will find it wasn't testimonial in this case simply because it was part of it, not sought after by the governing party, which would be the 911 Dispatch at this time.. [The Court] will determine this was a public safety exception based on the fact of what was observed at this time, given the fact there was a gun-potentially a gun involved, three individuals, a robbery, et cetera. So the public safety exception, based on the ongoing emergency, will be found and lack of indicia of formality is found by the Court; therefore, the Crawford analysis is stopped at this time."
Finally, the court determined the probative value outweighed the prejudicial effect under Evidence Code section 352. The court noted appellant was not the person identified, and Justin made no statements whatsoever about appellant.
2. Hearsay
Evidence Code section 1240 states the excited utterance or spontaneous declaration exception to the hearsay rule: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
"The hearsay exception for spontaneous declarations is among those 'firmly rooted' exceptions that carry sufficient indicia of reliability to satisfy the Sixth Amendment's confrontation clause." (People v. Dennis (1998) 17 Cal.4th 468, 529; see People v. Rincon (2005) 129 Cal.App.4th 738, 756-757.)
An admissible statement under Evidence Code section 1240 requires the following:" '" '(1) there must be some occurrence startling enough to produce ... nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.'" '" (People v. Sanchez (2019) 7 Cal.5th 14, 39.)
"Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion." (People v. Merriman (2014) 60 Cal.4th 1, 65.) On appeal, "[w]e will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception." (Ibid.)
The trial court's finding that Justin's statement constituted an admissible statement under Evidence Code section 1240 was supported by substantial evidence, and its decision to admit the statement was not an abuse of discretion. First, Justin was a witness to an armed robbery which was sufficient to produce nervous excitement. We reject appellant's suggestion that Justin must have been the victim of the crime for the exception to apply as there is no such requirement in the statute. Substantial evidence supports that the utterance was made before Justin had time to contrive and misrepresent. Gonzalez testified Justin ran in to say he knew one of the perpetrators, and the surveillance footage supports this; it shows Justin entering the store within seconds of the perpetrators leaving, and he appears to be talking excitedly about what had just happened. The video shows Gonzalez made the 911 call within minutes of the robbery. Finally, the statement clearly related to the circumstances of the occurrence preceding it.
The statement had additional indicia of reliability in that both Ana and Gonzalez testified they saw Justin gesture to someone as if he knew them before the incident.
We find no error under Evidence Code section 1240.
3. Crawford
In Crawford, the United States Supreme Court held the Sixth Amendment's confrontation clause bars testimonial hearsay unless the defendant had a prior opportunity to cross-examine the declarant and he or she is unavailable to testify. (Crawford, supra, 541 U.S. at p. 68.) In Davis v. Washington (2006) 547 U.S. 813 (Davis), the United States Supreme Court clarified "nontestimonial" hearsay does not trigger Sixth Amendment concerns and is subject to ordinary state evidentiary rules. (Davis, at pp. 823-829; see People v. Cage (2007) 40 Cal.4th 965, 981 [stating Davis confirmed "that the confrontation clause is concerned solely with hearsay statements that are testimonial"].)
The Davis court explained: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra, 547 U.S. at p. 822, fn. omitted.)
The California Supreme Court distilled the following principles from Davis: "First, ... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (People v. Cage, supra, 40 Cal.4th at p. 984, fns. omitted.)
In the context of 911 calls, California courts have observed, "a 911 call made during the course of an emergency situation is ordinarily made for the primary nontestimonial purpose of alerting the police about the situation and to provide information germane to dealing with the emergency." (People v. Gann (2011) 193 Cal.App.4th 994, 1008.) "Whether an ongoing emergency exists is a 'highly context-dependent inquiry.'" (People v. Blacksher (2011) 52 Cal.4th 769, 814, quoting Michigan v. Bryant (2011) 562 U.S. 344, 363.) For instance, "[e]ven when a threat to an initial victim is over, a threat to first responders and the public may still exist." (Blacksher, at p. 814.)
Here, we conclude the statements Justin made in the 911 call were not testimonial, and thus appellant's right to confrontation was not violated. An armed robbery had just occurred, and the suspects were at large. The information provided to the dispatcher served to assist in dealing with an ongoing emergency. Though the suspects were no longer at the T-Mobile store, there was still a threat to first responders and the public. Appellant cites several out-of-state cases to support his contention that 911 calls are testimonial and their admission violates the confrontation clause are not persuasive as they all predate Davis. We find no Crawford error.
While one case, State v. Sandholm (Wash. App. 2010) 2010 Wash.App.LEXIS 115, does not predate Davis, in the portion cited by appellant, the Sandholm case relies on a case that does, another case cited by appellant, State v. Powers (Wash. App. 2004) 99 P.3d 1262, and only to support the proposition that admissibility of a computer assisted dispatch log was "questionable" in the context of an ineffective assistance of counsel claim.
In any event, any error would be harmless beyond a reasonable doubt, as the only substantive information conveyed by Justin was that Gregory was one of the perpetrators. This information was also conveyed by Sizemore, who identified Gregory in surveillance videos of the gas station and the T-Mobile store based on his own personal contacts with him, without objection from the defense. Justin's identification of Gregory was merely a step in the investigation and by no means the only evidence tying Gregory to the commission of the crime. Without the statement, the jury would have still heard of Gregory's involvement.
D. Admission of the Photograph of Appellant's Chest Tattoo
Appellant argues the court erred by admitting a booking photograph depicting appellant "to be heavily tattooed." We disagree.
Appellant objected to the admission of two photographs at the time he was taken into custody showing "a tattoo on [appellant's] chest." The prosecutor argued the photographs were relevant to show appellant's appearance at the time of his arrest because it matched the description Lasater was anticipated to give when he first made contact with appellant, as well as to compare with the video of him at the gas station. Appellant responded that his identity at the time of his arrest and at the gas station were not in dispute. The court ruled the photos were admissible, concluding under Evidence Code section 352, "given the fact the defendant was under arrest at this time, given what the Court's heard so far, given the consideration of what it understands of the case at this time, it's going to find the probative value outweighs the prejudicial effect."
The photographs were published for the jury during Lasater's testimony. He identified the photos of appellant as a fair and accurate depiction of appellant at the time of booking. He had previously testified when he described seeing appellant for the first time, that he "remember[ed appellant] having a tattoo on his chest. I do not recall what it was."
During argument, the prosecutor used Lasater's testimony to show that the person he first encountered at the Niles Street location was "the same individual throughout the foot pursuit ... that being [appellant]."
We review the court's ruling on relevance and the admission of evidence under Evidence Code section 352 for abuse of discretion. (People v. Battle (2021) 11 Cal.5th 749, 799.) We find none.
The photographs were relevant to show appellant's appearance at the time of arrest and that he was the subject Lasater initially began pursuing. The prejudicial effect was low despite appellant's general assertion that people with tattoos are viewed negatively. No evidence was presented that the tattoo on appellant's chest contained anything negative or offensive or that it was gang related. Further, appellant has pointed to "nothing in the record suggesting that any member of the jury was biased against persons having tattoos." (People v. Navarette (2003) 30 Cal.4th 458, 496.) Finally, the probation report indicates appellant had three facial tattoos: a "G" on the front of his neck, a cross near his left eye, and "YFN" near his left eyebrow. Thus, the jury would have very likely been aware that appellant had tattoos even if the photographs had not been admitted.
The court did not err by admitting the photographs showing appellant had a tattoo on his chest.
Appellant also contends the cumulative prejudicial effect of the asserted trial errors warrant reversal and deprived him of due process and a fair trial. Because we find only one error, which we have concluded was harmless, we reject appellant's cumulative error argument. (See People v. Phillips (2000) 22 Cal.4th 226, 244.)
II. Sentencing Issues
A. Relevant Background
Appellant requested the court to dismiss his strike prior-a 2016 conviction for grand theft of a firearm (§ 487, subd. (d)(2); the April 2016 incident at the gun store described at trial)-in the furtherance of justice under Romero. Appellant contended he did not fall within the spirit of the "Three Strikes" law because of the nature of the present crime, including the fact that no firearms were discharged and appellant returned the victims' cell phones to them before fleeing the store; his young age; and the age of his strike conviction. The People opposed the motion.
The probation report indicated appellant was 19 years old. He graduated high school and had some college education.
The probation report further indicated appellant's criminal history included a July 2016 conviction for grand theft of firearms (§ 487, subd. (d)(2)) with personal use of a firearm by a minor 14 years or older (Welf. &Inst. Code, § 707, subd. (d)(2)(A))-the strike prior-and resisting a peace officer (§ 148, subd. (a)(1)). The report indicated he was sentenced to 16 months in prison and was paroled in January 2017. Appellant further suffered a juvenile adjudication of first degree burglary (§ 460, subd. (a)) and receiving stolen property (§ 496, subd. (a)) in September 2017.
Appellant reported to probation some drug use and that he had taken one Xanax pill and smoked "several blunts" on the day of the incident and believed drugs played a role in the commission of the crime because he "didn't care at the moment" and "wasn't thinking about the consequence." He reported his health was good and that he had no disabilities. He was employed for four months in 2018 working to collect signatures for which he earned $4 per signature. The probation report indicated appellant admitted culpability stating, "I know what I did was wrong. What happened to those ladies shouldn't happen to anybody. I know I'm guilty of the robbery, but I did not kidnap anybody."
The probation report listed as circumstances in aggravation that appellant "was on juvenile probation and state parole when the crimes were committed"; his "prior performance on juvenile probation and state parole was unsatisfactory in that he violated terms and/or re-offended"; and "[t]he crimes involved planning and sophistication."
Probation stated that because there were aggravating factors but no mitigating factors, "the upper term in sentencing could be warranted." However, probation recommended the middle term for count 3, the kidnapping of Gonzalez and base term, due to appellant's age. Probation recommended a consecutive term for count 4, the kidnapping of Gomez, because it involved a separate victim from count 3. Probation concluded punishment for counts 5 and 6 (robberies) and counts 9 (burglary) and 11 (receiving stolen property) should be stayed pursuant to section 654 because "they involve the same set of operative facts and the same victims" as counts 3 and 4. Probation recommended consecutive sentences for counts 7 and 8 (assaults); however, because although they involved the same victims, "the element of the use of the firearm is a separate element from the kidnapping in Counts Three and Four." Finally, probation recommended the one-year sentence enhancement be imposed pursuant to section 667, subdivision (b), for a total fixed term of 18 years 4 months.
At sentencing, the court addressed the probation officer, thanking him for his work on the case and stating, "We did have a conversation. I did meet with you. We discussed it. Thank you again for taking that time."
Appellant read a letter he had prepared to the court. Appellant told the court he was "not raised in the best of care," and had "been through a lot that I pray no child has to ever go through, from being completely homeless, to trying to avoid going to a home, to a mentally and physically abusive father and drug-dependent mother." Appellant stated he had spent most of his life "on the streets of Bakersfield, ultimately surrounding myself with people of criminal or bad nature." Appellant stated he took "100 percent responsibility" for his actions but had "no intentions of kidnapping or inflicting harm on any person." He told the court that no matter how long his sentence, he wanted to use the time "to educate [him]self and strive to be a productive member of society." Finally, he asked the court to not "take all of my youth away. I never knew what it was like to be a kid in the first place."
The court heard arguments from counsel and invited the probation officer to add anything he deemed appropriate. The probation officer commented that "Probation does see a 654 issue regarding specifically Counts 5 and 6 [the robberies]. The element of force and fear with a kidnap and the fact that the robbery and the kidnap all occurred together, we see that as a 654 issue."
In ruling on appellant's Romero motion, the court stated it had considered the motion, the People's opposition, appellant's current charges, his background, character, and prospects in the interest of justice. The court stated in considering the totality of those factors, it found appellant was not outside the spirit of the Three Strikes law and denied the motion.
In pronouncing judgment, the court noted it "did go and meet again with [the probation officer], who gave me his time," "did its own work on the 654 issues" and was going to "follow Probation's recommendation in terms of that." The court went on to state the case was "an upper-term case. There's no issue with that in terms of what was spotted, and I was a witness here. When I saw that video, it was tremendously impacting, not so much with the criminality but the way the victims, two innocent people, just trying to get on in life, who go to work every day to support families, and they're just changed, period."
The court sentenced appellant as stated ante. The court made no further comment as to why it imposed consecutive sentences as to counts 7 and 8.
The court also ordered appellant to pay a $360 court security fee (§ 1465.8), a $270 court facilities fee (Gov. Code, § 70373), a $300 restitution fine (§ 1202.4, subd. (b)), and a $300 parole revocation fine (§ 1202.45), which was stayed pending successful completion of parole.
B. Analysis
1. Romero
Appellant contends the court erred by denying his Romero motion. We disagree.
Section 1385 gives the trial court authority to order an action dismissed, "in furtherance of justice." (§ 1385, subd. (a).) Under this authority, the court may vacate a prior strike conviction for purposes of sentencing under the Three Strikes law, "subject, however, to strict compliance with the provisions of section 1385." (Romero, supra, 13 Cal.4th at p. 504.)
We review the denial of a request to strike a prior conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Dismissal of a strike is a departure from the sentencing norm. As such, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, at p. 377.)
In ruling on a Romero motion, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) In an "extraordinary case-where the relevant factors [set forth in Williams] manifestly support the striking of a prior conviction and no reasonable minds could differ-the failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 378.) Reversal is also justified where the trial court was unaware of its discretion to strike a prior strike or refused to do so, at least in part, for impermissible reasons. (Ibid.)" '[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, [however,] we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.'" (Ibid.)
Appellant has not met his burden of showing the trial court's decision was "so irrational or arbitrary that no reasonable person could agree with it." Appellant contends no one factor dictates that his prior strike should be dismissed but a "combination of factors, taken together, brings him outside of the spirit of the Three Strikes Law"- primarily that he was 16 years old when he committed his strike offense; he was 18 when he committed the present offense, as well as he committed it with others and did not hurt or threaten anyone; his background as a Black man from a "dysfunctional and abusive family," with a history of living on the streets; and remorse for the crime at sentencing.
We appreciate appellant's points, but do not find the court acted outside of its discretion in declining to strike the prior. The nature of the charged crimes represented an escalation in appellant's criminal behavior as they occurred during the day, while the store was open, involving vulnerable victims who were just trying to do their jobs, and that his coparticipants were armed, with one threatening violence. In addition, appellant reoffended between his strike offense and the present offense, indicating the present offense was not a one-off relapse into criminal behavior. While appellant raises valid concerns, we cannot say this was a case where "no reasonable minds could differ" regarding the application of the Three Strikes law. In reviewing the record, we conclude the record demonstrates" 'the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law,'" and do not take into consideration whether" 'we might have ruled differently in the first instance.'" (Carmony, supra, 33 Cal.4th at p. 378.)
2. Section 654
Appellant argues first that the court erred by failing to stay punishment on counts 7 and 8-the assault counts-under section 654, and, in the alternative, that the court erred by failing to order the sentences be served concurrently. In support of his argument that the sentence should have been stayed, appellant argues that the assaults were incident to a single course of conduct, the theft of property from the T-Mobile store. We agree the court erred by failing to stay sentence on counts 7 and 8 and as such do not reach appellant's alternative argument.
Section 654 "generally precludes multiple punishments for a single physical act that violates different provisions of law [citation] as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute [citations]." (People v. Newman (2015) 238 Cal.App.4th 103, 111-112, italics omitted.) Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. If all the offenses were incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Jackson (2016) 1 Cal.5th 269, 354.) But, if the defendant harbored multiple objectives, independent of and not merely incidental to each other, he may be punished for each violation committed in pursuit of each independent objective, even though the violations share common acts or were parts of an otherwise indivisible course of conduct. (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1112.)
Whether section 654 applies is a question of fact for the trial court, which has broad latitude in making its determination. Its findings will be upheld if supported by substantial evidence, and we view its determination in the light most favorable to the judgment. (People v. Jackson, supra, 1 Cal.5th at p. 354.) "When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective." (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
Here, the court did not comment at length on its section 654 findings but did indicate it agreed with probation's analysis. Probation expressly opined that the robberies, the burglary, and the receiving stolen property offenses involved the "same set of operative facts" as the kidnappings and singled out the assaults as not being subject to section 654 because "the use of the firearm is a separate element from the kidnapping." We interpret the court's comments and sentencing decisions as an implied finding that appellant harbored one criminal objective with respect to the kidnappings, robberies, burglary, and receiving stolen property and a separate criminal objective with respect to the assaults. This finding is not supported by substantial evidence.
Respondent disagrees stating: "The trial court imposed sentence on the assault counts and stayed sentence on the robbery and burglary counts, indicating that it found those counts were all part of one indivisible course of conduct," noting in a footnote that because robbery and assaults both carry a middle-term of two years, the court "[theoretically ... could have imposed sentence on the robberies and stayed sentence on the assaults." Respondent goes on to state, "However, the court imposed sentence on the kidnapping counts, indicating that, with regard to that count, it found appellant 'entertained multiple criminal objectives.'" Respondent then recites the facts of the case at length and argues that, based on the facts, the court could reasonably find the kidnappings were not incidental to the robberies and does not offer any evidence supporting a finding of a separate objective with regard to the assaults. Respondent's interpretation of the court's sentencing decisions is simply not supported by the court's statements. By framing the court's sentencing decisions as it does, respondent avoids addressing the question before us which is whether substantial evidence supports the court's implied finding that appellant personally harbored a separate criminal intent or objective with regard to the assaults. That respondent does not seem to be able to articulate a separate objective with regard to the assaults merely confirms our ultimate conclusion. We note our conclusion-that substantial evidence does not support the trial court's finding section 654 did not apply to the assaultsis based on the sentencing decisions as articulated by the court on the record before us. We express no opinion on whether the court could have properly imposed consecutive sentences on the robberies, as respondent appears to be asking us to do. Such comment is not necessary as the matter is being remanded for a full resentencing, at which point the trial court can reconsider all of its sentencing decisions, so long as they are consistent with the views otherwise expressed in this opinion.
The evidence shows appellant acted with the intent and objective to steal property from the T-Mobile store, and we cannot find any evidence on the record appellant harbored a separate objective with regard to the assaults. Appellant was not personally armed, and it appears the assaults were committed by appellant's coparticipants solely to effectuate the robberies and kidnappings. (See People v. Mitchell (2016) 4 Cal.App.5th 349, 354 ["It has long been recognized that where a defendant is convicted of robbery and other crimes incidental to the robbery such as assault, section 654 precludes punishment for both crimes."].) In addition, there does not appear to be any gratuitous violence in that appellant's coparticipants did not discharge the weapons or perpetrate any significant violence against the victims. (See People v. Bui (2011) 192 Cal.App.4th 1002, 1016 [explaining exception to general rule that § 654 precludes multiple punishment for robbery and a crime incidental to robbery where an act of "gratuitous" violence is committed].) Though Gregory threatened Gonzalez, the purpose of the threat appeared to be to obtain the cash in the registers.
Moreover, the jury was instructed on several theories of vicarious liability, including that they could convict appellant of the assaults on the theory the assaults were natural and probable consequences of burglary and/or robbery. When a defendant is guilty of a crime based on the natural and probable consequences doctrine, in order to punish a defendant for the target offense and the natural and probable consequence offense, the defendant "must personally have had the objective of committing both [offenses]." (People v. Bradley (2003) 111 Cal.App.4th 765, 770, italics added.) Thus, even if it could be inferred that either Gregory or the unidentified participant harbored additional intents or objectives in committing the assaults, the evidence does not support a finding appellant personally harbored them. It does not appear from the video that appellant harbored any intent to cause physical harm to the victims. He entered the store, put phones in his bag, and returned the victims' personal phones to them after the theft. There was no apparent intention behind appellant's role in the assaults with the firearms other than to effectuate the intended theft of the contents of the T-Mobile store.
3. Recent Legislation
Appellant initially contended his one-year prison prior enhancement (§ 667.5, subd. (b)) must be stricken in light of Senate Bill 136, which went into effect while this appeal was pending. In supplemental briefing, appellant contends in addition, pursuant to Senate Bill 483, he is entitled to be resentenced. Senate Bill 483 added section 1171.1, which the Legislature recently renumbered to section 1172.75. (Stats. 2022, ch. 58, § 12 (Assem. Bill No. 200), eff. June 30, 2022.) Section 1172.75 declares a sentence enhancement not imposed for a sexually violent offense prior to January 1, 2020, pursuant to section 667.5, subdivision (b), is "legally invalid." (§ 1172.75, subd. (a).) Under section 1172.75, a sentence including an enhancement under section 667.5, subdivision (b) shall be recalled, and the defendant shall be resentenced. (§ 1172.75, subd. (c).) Resentencing under this subdivision "shall result in a lesser sentence than the one originally imposed ... unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing ... shall not result in a longer sentence than the one originally imposed." (§ 1172.75, subd. (d)(1).) In resentencing under section 1172.75, the court "shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).)
Appellant also contends Assembly Bill 124 and Senate Bill 567 apply retroactively as to him. Senate Bill 567 added section 1170, subdivision (b)(6), which now reads in relevant part:
Three bills amending section 1170 were enacted and signed into law on the same date. (Stats. 2021, ch. 695, § 5 (Assem. Bill 124), eff. Jan. 1, 2022; Stats. 2021, ch. 719, § 2 (Assem. Bill No. 1540), eff. Jan. 1, 2022; Stats. 2021, ch. 731, § 1.3 (Sen. Bill 567), eff. Jan. 1, 2022.) Senate Bill 567-which takes precedence because it was enacted last (Gov. Code, § 9605)-states that if all three bills amending section 1170 are enacted and become effective on or before January 1, 2022, and Senate Bill 567 is enacted last, then section 1.3 of that bill, which incorporates the amendments proposed by Senate Bill 567, Assembly Bill 124, and Assembly Bill 1540, shall become operative. (Stats. 2021, ch. 731, § 3.)
"[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
"(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
"(B) The person is a youth, or was a youth ... at the time of the commission of the offense." (§ 1170, subd. (b)(6)(A) &(B).)
For the purposes of section 1170, subdivision (b)(6)(B), "youth" is defined as "any person under 26 years of age." (§§ 1170, subd. (b)(6)(B), 1016.7.)
Respondent concedes appellant is entitled to resentencing under Senate Bill 483 and does not address appellant's claims with respect to whether remand is necessary under Senate Bill 567 and Assembly Bill 124. Respondent concedes both apply retroactively to appellant, however, and that he may seek the benefit of these legislative enactments on remand. Respondent further concedes the trial court may revisit all of its prior sentencing decisions under the new legislation.
We agree with the parties that the matter must be remanded for resentencing. Senate Bill 483 applies to appellant as his prison prior was not for a sexually violent offense. We further agree that newly added section 1170, subdivision (b)(6) also applies to appellant. He was 18 years old at the time of the offense and, therefore, a "youth" for the purposes of section 1170, subdivision (b)(6). In addition, the record suggests appellant may have experienced abuse and/or neglect as a child. He is entitled to the ameliorative benefits of this legislation as well. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039 [holding § 1170, subd. (b)(6) added by Senate Bill 567 and Assembly Bill 124 applied retroactively to the defendant's case and remanding matter for resentencing].) We express no opinion on how the trial court should exercise its discretion granted under any recent legislation.
Though the parties do not address the issue, we note that Assembly Bill No. 518 (2021-2022 Reg. Sess.), effective January 1, 2022, amended section 654 to no longer require the trial court to impose the sentence that provides for the longest potential term of imprisonment and stay execution on the other term. "[S]ection 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.) This amendment also applies retroactively to defendants whose convictions were not yet final on January 1, 2022. (People v. Sek (2022) 74 Cal.App.5th 657, 673.) We rest assured the trial court, upon remand, will consider whether to exercise its new discretion under Assembly Bill No. 518, as well as under any other new legislation that applies to appellant at the time of resentencing.
4. Fines and Fees
Appellant contends the matter must be remanded to determine appellant's ability to pay the court security fees (§ 1465.8), court facilities fees (Gov. Code, § 70373), and restitution fine (§ 1202.4), relying on Duenas and this court's decision in People v. Son (2020) 49 Cal.App.5th 565. At sentencing, appellant did not object to any fines or fees imposed or make any representation he did not have the ability to pay them. Respondent contends appellant forfeited his claim by failing to object below, and appellant contends, if we find forfeiture based on his failure to object, his counsel provided ineffective assistance.
The California Supreme Court is now considering (1) whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and (2) if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, rev. granted Nov. 13, 2019, S257844.)
We need not determine whether appellant forfeited his argument or whether his counsel's failure to object constituted ineffective assistance as the issue has been rendered moot by our decision to remand for resentencing. Upon remand, appellant may raise his ability-to-pay claim below for the trial court to consider in the first instance.
DISPOSITION
The matter is remanded for resentencing in compliance with all current and applicable laws and the views expressed in this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: SMITH, ACTING P. J. MEEHAN, J.