Opinion
B152499.
7-14-2003
THE PEOPLE, Plaintiff and Respondent, v. KEYAWN LLOYD COOK et al., Defendants and Appellants.
Katherine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant Keyawn Lloyd Cook. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant Ramon Patton. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Keyawn Cook and Ramon Patton each guilty of three counts of robbery, four counts of assault with a firearm and one count of street terrorism. Both defendants appeal their convictions, and contend the trial court erred when it denied their Wheeler motions. Patton also contends, among other things, the trial court erred when it (1) refused to allow him to question a witness concerning "the circumstances" of a pre-trial identification and (2) admitted evidence of a subsequent robbery. Finding no error here, we affirm the convictions.
People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748.
Cook and Patton also challenge the sentences the trial court imposed. We find, and the People concede, the trial court erred in sentencing both defendants. Accordingly, we reverse and remand the matter for resentencing.
FACTS AND PROCEEDINGS BELOW
I. ROBBERY OF HODGKINS JEWELRY STORE
At all relevant times, Colleen and Terry Hodgkins owned Hodgkins Jewelry store in Lancaster. At about 11:00 a.m., on June 26, 1996, an African-American man, who witnesses later identified as defendant Keyawn Cook, entered Hodgkins Jewelry. He was accompanied by a "White" man, who was not named as a defendant in this matter.
Cook told Colleen Hodgkins he wanted to buy a ring as a graduation present for his sister. Colleen spent about 10 minutes helping Cook select a ring. During this time, David Yennie, a Hodgkins Jewelry employee and salesman, was assisting other customers. After those customers left the store, Yennie greeted the man who had entered the store with Cook, and tried to show him some jewelry. According to Yennie, the man was not interested in the jewelry, and he seemed "preoccupied with something else."
Terry Hodgkins was in the stores office having a meeting with Andrew Rott, a stone dealer. Terry went out to the front of the store a few times while Colleen was assisting Cook. On one of those occasions, Terry tried to engage Cooks partner in conversation. According to Terry, the man appeared nervous and said he did not need any help.
After Cook decided on a ring, he and Colleen went over to the sales counter. The price of the ring was $ 284.15. Cook paid for it with three one-hundred-dollar bills. Colleen asked Cook if he wanted her to wrap the ring. Cook responded affirmatively. While Colleen wrapped the ring, Terry and Yennie stood at or near the sales counter. The other man joined Cook at the counter.
Cook and his partner simultaneously pulled guns from underneath their shirts and announced this was a robbery. There were no customers in the store at the time. Terry started running toward the back of the store, and Cook ran after him. Cooks partner went around the sales counter and ordered Colleen and Yennie to lie down on the floor. He pointed the gun at Yennie.
Cook followed Terry into the stores office. A struggle ensued and Terry tried to grab Cooks gun. According to Terry, Cook yelled: "Im going to kill you, motherfucker." Then, Cook pushed Terry back, raised his gun and "fired it directly" at Terrys chest. Terry lifted his hands. A bullet went through the thumb of his right hand and the middle finger of his left hand. Terry and Cook started to "wrestle" and Terry tried to grab the gun again. Cook fired another shot, and a bullet hit Terry about an inch below his left knee.
Cook subdued Terry and handcuffed him. Cook held Terry by the arm, while Terry crawled out to the front of the store on his knees and got down on the floor near the others. Cook placed the gun to Rotts head and ordered him to lie down on the floor in the front of the store near some showcases. As a result of some "blows" to the head, Rott suffered a broken nose.
Terry saw Cook pull out a "walkie-talkie" and speak into it. Both Terry and Colleen heard Cook say the store was "secure," or words to that effect. Terry heard a voice come over the walkie-talkie. The person on the other end asked Cook if he had gotten "the tape." Cook said he had not, and the person told Cook to go get it. Cook disappeared out of Terrys view. When Cook came back, Terry heard Cook say, "I have it," to the person on the other end of the walkie-talkie.
After the robbery, the store surveillance videotape was missing. Yennie recalled he had placed a tape in the machine on the morning of June 26, before the robbery.
According to Terry and Colleen, Cooks partner went to the back door, which was locked from the outside, and let more people into the store. Colleen believed two or three more men entered. She was only able to see their feet as they walked past her. One of them kicked her in her side, and one of them "jumped" on her back. At some point during the robbery, at least one of the men kicked Yennie in the head a couple of times.
Cook pulled Colleen off of the floor and brought her over to the cash register. He ordered her to open it. She complied. While Colleen was standing in front of the cash register, she saw for the first time an African-American man she later identified as defendant Ramon Patton. He was standing about 15 feet away, facing her. She only glanced at Patton for a second or two. Then, she got back down on the floor.
Because the eyewitness identifications of Cook are not at issue on appeal, we do not address the amount of time each of the victims observed Cook.
The store phone started to ring, and Cook ordered Colleen to answer it. Colleen got on her knees and reached for the phone. By the time she answered it, the caller had hung up. As Colleen was turning back to assume her position on the floor, she looked at Patton for another second or two.
Cook pulled Colleen off of the floor one more time. When she stood up, Patton was about six or seven feet away from her, standing in front of a display case of "Black Hills Gold." Patton was trying to open the case with a key. Cook escorted Colleen over to the display case. At this time, Patton was standing next to Colleen, about one step away. Patton gave the key to Colleen and she opened the case. Then, Colleen walked back to the area behind the sales counter and got down on the floor again.
Colleen estimated she looked at Patton for a total of six to 10 seconds during the robbery. She noticed Patton was bald and he was wearing shorts and "big tennis shoes." She also recalled he was wearing something green, but she could not remember what.
Terry heard someone yell, "times up," or something like that. As the robbers left the store, at least one of them stepped on top of the bodies and heads of the victims who were on the floor, and ordered them to keep their heads down. Cook said to Colleen: "Dont get up, bitch." Then, he shot her in the back of her right leg.
Colleen called 911. Greg Everett was the first deputy sheriff to respond to the scene. Colleen gave him descriptions of Cook and the man who had entered the store with Cook, including information about age, height, weight, hair and clothing. She described the other robbers in very general terms, stating they were African-American men who were wearing dark clothing and white tennis shoes. She told Everett she could not remember any "specifics" about these other men.
The Hodgkinses estimated the wholesale cost of the jewelry the robbers took was between $ 75,000 and $ 90,000, and the retail value was $ 250,000. The jewelry was not insured.
At some point after the robbery, Stephen Lankford, an investigating detective assigned to the case, told the Hodgkins he believed their jewelry might be at a store in a mall in Culver City. He suggested they go to the mall and look for it. The Hodgkinses found approximately 240 pieces of their jewelry in a store called Powers Jewelry. The owner of the store told Detective Lankford he had received some of this jewelry from a man he later identified as Cook. In exchange for some rings, the owner gave Cook a gold chain, which had a retail value of about $ 3,000. The owner estimated the value of the jewelry he received from Cook was between $ 3,500 and $ 4,000. The owner disputed Cook gave him all of the pieces of jewelry the Hodgkinses said belonged to them. He alleged he had receipts for some of the jewelry they claimed, indicating he had received it from other sources. According to Detective Lankford, the owner did not produce these receipts.
II. ROBBERY OF HERITAGE JEWELERS
About a month after the above-described robbery of Hodgkins Jewelry store, Heritage Jewelers was robbed. The owners of the store, Verkin and Suren Sultanian, identified Cook and Patton as two of the three men who had robbed their store. Cook and Patton were arrested and charged with this robbery in a separate case in Orange County. The following evidence of this subsequent robbery was admitted at trial in this case under Evidence Code section 1101, subdivision (b).
On August 24, 1996, Suren Sultanian "buzzed" Cook and Patton into Heritage Jewelers. The store had a security lock. Suren began assisting them. He saw both of their faces. There were no other customers or employees in the store during the time Cook and Patton were there.
Later, Surens wife, Verkin, took over assisting Cook. He told her he was looking for something for his girlfriend. At some point, Cook specified he was looking for a ring. Verkin spent about five to 10 minutes helping Cook select a ring. For at least some of this time, Patton was standing next to Cook, facing Verkin. Verkin got a good look at Pattons face.
Cook selected a ring. Verkin told him the price was $ 300. Cook gave her three one— hundred-dollar bills. Verkin gift-wrapped the ring. As she was putting it in a bag, Patton pulled out a gun and said, "This is a robbery, dont move." Then, Cook pulled out a gun and said the same thing.
Verkin told the robbers to take whatever they wanted. Cook ordered Verkin to buzz a third African-American man into the store. This man told Cook and Patton the police were there. Cook started pulling "things" out of one of the showcases. Patton and the third man ran out the back door and down an alley. Verkin saw them stop, and assumed they were waiting for Cook.
Cook asked Verkin to show him the "security videos." He was holding on to her at the time. Verkin pointed out the video machine. Cook ordered her to give him the video. Verkin told him the machine was broken and was not working. This was not true. There was a tape in the machine, but Cook did not take it. He ran out the back door. After the men left, Verkin noticed a showcase door was open and some rings were missing.
Detective Maury Dandoy was an investigating officer on the Heritage Jewelers robbery case. He received information, indicating the Main Street Crips might have been involved in this and a string of other robberies. Both Cook and Patton were admitted members of this street gang. Dandoy interviewed Patton. Patton admitted he was present during the Heritage Jewelers robbery.
Through conversations with detectives in other jurisdictions, Dandoy learned at least two other members of the Main Street Crips, and another gang member who associated with the Main Street Crips, were suspects in other jewelry store robberies. Dandoy concluded the "same group" was committing all of these robberies, using the "same pattern." He acknowledged the lineup of suspects was not the same at each robbery.
III. EYEWITNESS
IDENTIFICATIONS
Colleen, Terry, Yennie and Rott each picked Cook out of a pre-trial photo lineup and also identified him at trial.
In January 1997, Colleen Hodgkins met with Christopher Kralick, the deputy district attorney in the Orange County case against Cook and Patton. Kralick interviewed Colleen and showed her some photo lineups. Colleen selected a photo of Patton and told Kralick he looked "just like" one of the men who had robbed her store. Later the same day, Colleen testified at the preliminary hearing in the Orange County case and identified Patton in court.
Colleen also identified Patton at the trial in this matter.
The defense called an eyewitness identification expert. The People called their own expert in rebuttal.
IV. THE CHARGES, VERDICTS AND SENTENCES
Cook was charged with the attempted murder of Terry Hodgkins. Cook and Patton were each charged with three counts of second degree robbery (as to Colleen, Terry and Yennie), four counts of assault with a firearm (as to Colleen, Terry, Yennie and Rott), and one count of street terrorism.
Penal Code section 211. All further statutory references are to the Penal Code unless otherwise noted.
Section 245, subdivision (a)(2).
Section 186.22, subdivision (a).
The jury found Cook not guilty of attempted murder. It found both Cook and Patton guilty of all other crimes, as charged. The jury found true the following special allegations:
In the commission of the robberies (counts 2, 3 and 9), Cook personally used a revolver within the meaning of section 12022.5, subdivision (a)(1), a principal was armed with a revolver within the meaning of section 12022(a)(1), and Cook acted "for the benefit of, at the discretion of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct of gang members," within the meaning of section 186.22, subdivision (b)(2). In the commission of the robbery of Terry (count 9), Cook personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), and "with the intent to do so, took, damaged and destroyed property of a value exceeding $ 150,000" within the meaning of section 12022.6, subdivision (b). In the commission of the assaults with a firearm (counts 4 through 7), Cook personally used a revolver and acted "for the benefit of . . . a criminal street gang . . . ." In the commission of the assaults with a firearm on Colleen and Terry (counts 4 and 5), Cook personally inflicted great bodily injury.
In the commission of the three robberies (counts 2, 3 and 9), Patton acted "for the benefit of . . . a criminal street gang," and a principal was armed with a revolver. In the commission of the robberies of Colleen and Terry (counts 2 and 9), Patton, "with the intent to do so, took . . . property of a value exceeding $ 150,000." In the commission of the assaults with a firearm (counts 4 through 7), Patton acted "for the benefit of . . . a criminal street gang . . . ."
The trial court sentenced Cook to 30 years in prison to run consecutively with the sentence imposed in the Orange County case. On counts 2 and 3 for robbery of Colleen and Yennie, the court sentenced Cook to one-third the middle term on the offense (one year), and one-third the high term on the firearm use enhancement (three years and four months), for a total term of four years and four months on each count.
The trial court sentenced Cook to an additional term on the other enhancements, but stayed the sentence.
On count 4 for assault with a firearm on Terry, the trial court sentenced Cook to one-third the middle term on the offense (one year), one-third the high term on the firearm use enhancement (three years and four months), one-third the high term on the infliction of great bodily injury enhancement (three years and four months), and one-third the middle term on the street gang participation enhancement (one year), for a total term of eight years and eight months.
As discussed below, the trial court erred. The enhancement for infliction of great bodily injury does not have a low, middle and high term. It carries only one term of three years.
On count 5 for assault with a firearm on Colleen, the trial court sentenced Cook to one— third the middle term on the offense (one year), one-third the high term on the firearm use enhancement (three years and four months), one-third the high term on the infliction of great bodily injury enhancement (three years and four months), for a total term of seven years and eight months.
The trial court sentenced Cook to an additional term on the street gang participation enhancement, but stayed the sentence.
On count 6 for assault with a firearm on Yennie, the trial court imposed a total sentence of three years on the offense and the enhancements, but stayed the sentence.
On count 7 for assault with a firearm on Rott, the trial court sentenced Cook to one-third the middle term on the offense (one year), and one-third the high term on the firearm use enhancement, for a total term of four years and four months.
The trial court sentenced Cook to an additional term on the street gang participation enhancement, but stayed the sentence.
On count 8 for street terrorism, the trial court sentenced Cook to one-third the middle term (eight months).
On count 9 for robbery of Terry, the trial court imposed a total sentence of four years on the offense and the enhancements, but stayed the sentence.
The trial court sentenced Patton to eight years and four months in prison to run consecutively with the sentence imposed in the Orange County case. On count 2 for robbery of Colleen, the court sentenced Patton to one-third the middle term on the offense (one year), four months on the enhancement under section 12022, subdivision (a)(1), eight months on the enhancement under section 12022.6, subdivision (b), and one year on the street gang participation enhancement, for a total term of three years.
On count 3 for robbery of Yennie, the trial court sentenced Patton to one-third the middle term on the offense (one year), and four months on the enhancement under section 12022, subdivision (a)(1).
The trial court sentenced Patton to an additional term on the street gang participation enhancement, but stayed the sentence.
On count 4 for assault with a firearm on Terry, the trial court imposed a total sentence of two years and four months on the offense and the enhancement, but stayed the sentence.
On count 5 for assault with a firearm on Colleen, the trial court sentenced Patton to one-third the middle term on the offense (one year).
The trial court sentenced Patton to an additional term on the street gang participation enhancement, but stayed the sentence.
On count 6 for assault with a firearm on Yennie, the trial court imposed a total sentence of two years and four months on the offense and the enhancement, but stayed the sentence.
On count 7 for assault with a firearm on Rott, the trial court sentenced Patton to one-third the middle term on the offense (one year).
The trial court sentenced Patton to an additional term on the street gang participation enhancement, but stayed the sentence.
On count 8 for street terrorism, the trial court sentenced Patton to one-third the middle term (eight months).
On count 9 for robbery of Terry, the trial court sentenced to Patton to one-third the middle term on the offense (one year), and four months on the enhancement under section 12022, subdivision (a)(1).
The trial court sentenced Patton to an additional term on the other enhancements, but stayed the sentence.
DISCUSSION
I. THE TRIAL COURT DID NOT ERR IN DENYING THE WHEELER MOTIONS.
Between them, Cook and Patton made five Wheeler motions, challenging the prosecutors use of peremptory challenges to excuse African-American prospective jurors.
A. First Wheeler Motion.
Patton made his first Wheeler motion after the prosecutor had used his sixth and seventh peremptory challenges to excuse two African-American prospective jurors. The following exchange took place at sidebar:
"[Pattons counsel]: Pursuant to [People v. Wheeler], I would ask 20 that this panel be excused and that another panel be brought in. [P] We have two African-American defendants sitting there and at least the last two jurors that have been stricken by the People were of African-American descent. [P] What weve got left now — weve got one African-American on the panel. [P] Now, there is
"THE COURT: Im sorry. Is your sight going? I would say 10 and 11 are clearly African-American.
"[Pattons counsel]: Two. But, still, there was no reason to excuse — I didnt keep track of exactly how many because were going kind of fast — African-Americans were being excused by the People but I know the last two have been. [Sic.]
"THE COURT: Well, I dont think the mere fact that two African-Americans have been excused makes a prima facie case.
"[Pattons counsel]: Yes, Your Honor, when there is no justification for it.
"THE COURT: I dont find a prima facie case. [P] If the People want to be heard as far as the record, I11 certainly hear you.
"[Prosecutor]: The last male that I excused was a male Black. He was the one that had indicated
"THE COURT: The one in seat no. 10.
"[Prosecutor]: He was the one that indicated that if all 21 we had was eyewitness testimony, even if he believed the witness was being honest and accurate, he could not convict and I — that was enough for me. The male Black before that was the one
"THE COURT: The one in seat no. 6.
"[Prosecutor]: Right. He had a lot of problems with officers who simply approached gang members[,] whose primary duty it was to find gang members. He said he would find those types of officers suspect. [P] He also indicated that he would have a problem with convicting based on a single I.D. witness even if that witness was accurate and honest. [P] So again, I thought there was some bias there.
Specifically, this prospective juror stated: "If you got somebody from CRASH that just messes with gang members, that just go to gang members [sic] neighborhoods just to see what theyre doing, you know, if there is five of them sitting on the porch, they stop right there just to see what they got on them, if youre messing with somebody in a gang and a CRASH unit comes — I mean, Im not saying Im not going to believe what he says up there but if hes trying to convict a gang member . . . . That would cause me some concern."
"THE COURT: Okay. Thank you."
B. Second Wheeler Motion.
Cook made a Wheeler motion after the prosecutor had used his eighth and ninth peremptory challenges to excuse two African-American prospective jurors. The following exchange took place at sidebar:
"[Cooks counsel]: It appears that the District Attorney has entered the arena of systematically excluding Blacks. [P] Since the last [Wheeler] motion was made and the court denied it, I think the next two exclusions have both been Black people.
"THE COURT: Okay. I dont think so — yeah, since I last ruled.
"[Cooks counsel]: Right. Since the last ruling, the very next person excused was Black and now this person is Black. So, again, I would renew that motion and submit to the court that before we remove any further Blacks from the panel he should come to sidebar and indicate to the court his reasons as to why he has kicked off those Blacks for reasons other than just being for their color.
"THE COURT: I dont think these last two were even close but I11 give — and I dont find a prima facie case but I will give the D.A. an opportunity, as the Supreme Court has indicated I should give him an opportunity, to make any record he wants to.
"[Prosecutor]: Thank you, Your Honor. [P] The last one, he indicated his son is currently in a drive-by shooting case.
"THE COURT: Pending for trial.
"[Prosecutor]: And its pending trial. [P] Despite what he says about being objective, I think its just a little hard to be objective when your son is facing what Im presuming are felony charges, perhaps, in the area of attempt [sic] murder. [P] And I just think it hits a little bit too close. Whether youre Black, White, Asian, it just hits a little too close to them. [P] I have to admit the last juror I dont remember. If I could go get my notes.
"THE COURT: Go get your notes.
"[Prosecutor]: Thank you. [P] Your Honor, the last one was a female Black. She grew up in Watts. Shes a Bank of America student loan agent. She said she may have recognized one of the defendants and she kept stressing I dont want any trouble for my sister. And when I asked her would she be worried for her sister, she kept saying theyre strong people, they can hold their own. [P] And I just felt that if she sat on this jury she would have some concern for her sister that might be retaliation. [P] Even though she thought that her sister could hold her on [sic], I dont want a juror to sit on this case and be fearful of convicting anyone for fear of her family and so thats why I excused her.
This prospective juror stated she might have seen one of the defendants before at her "sister-in-laws business." She commented: "Its a rough area. So I dont want any problems for her."
"THE COURT: Anything you want to add, [to Cooks counsel]?
"[Cooks counsel]: Nothing to add, Your Honor. Submit to the court.
"THE COURT: Okay. Thank you.
C. Third Wheeler Motion.
Patton made another Wheeler motion after the prosecutor had used his eleventh peremptory challenge to excuse an African-American prospective juror. The following exchange took place at sidebar:
"[Pattons counsel]: Again pursuant to [People v. Wheeler], Im asking for a new panel. There is absolutely no justification — the majority of the peremptories by the People have been on African-American individuals. 25 [P] As pointed out before, we have two African— Americans here. Not only were they African-Americans, I think theyre African— American and Hispanics that are being kicked by the People. [P] There is no justification for the
"THE COURT: Thats interesting because your last peremptory was a Hispanic female.
"[Cooks counsel]: I dont know who mine was but the issue here is the Peoples. The People have excused two Hispanics.
On appeal, neither defendant addresses the prosecutors excusal of "Hispanic" jurors.
"THE COURT: I understand. Im just pointing out the logic. Just because someone is a race — I looked down at your peremptories. For example, one, two, three, four, five, six, seven, eight out of your peremptories have been against Whites. That kind of reasoning does not make a prima facie case. [P] If youre going to make an argument, youre going to have to tell me more. If someone is a certain race, youre going to have to tell me, if youre going to make a record, why that you feel youve made a prima facie case. Thats all Im trying to tell you. [P] Go on.
"[Pattons counsel]: There is no justification and thats the issue here. There is no justification for at least two of the last three. This last one that was kicked whats the justification? [P] Lets have the People come up here and say.
"THE COURT: Wells shes got a brother in state prison for drugs and murder.
"[Pattons counsel]: Nobody here — none of these individuals, other than possibly one, has ever said I have a problem with the system or I cant be fair. [The prosecutor] is now just kicking off
"THE COURT: This isnt a challenge for cause. This is a peremptory challenge. And the question is whether the People have a good-faith basis for exercising a peremptory. [P] A peremptory is not same [sic] as a challenge for cause. The test is entirely different. [P] And Im saying just looking quickly at my notes without even subsequent questioning by the attorneys I noticed she had a brother in state prison for murder and drugs. [P] But, again, I dont find a prima facie case, but if the People want to make any further record based on the questioning of counsel, go ahead.
"[Cooks counsel]: Prior to making the record, I just want the record to be clear Im joining and I also believe its a systematic exclusion of Blacks.
"THE COURT: Go ahead.
"[Prosecutor]: First of all, Ive excused a number of Whites, Hispanics and — I dont know if Ive excused any Asians yet. There are currently three African-Americans on the jury still.
"THE COURT: Right.
"[Prosecutor]: But with this last juror there is a number of reasons, one the court has pointed out, her brother is serving time for drugs and murder. [P] The charges in this case are attempted murder. [P] I think, again, it hits a little bit too close to home. [P] Whether youre White, Asian, Black, Hispanic, to me it doesnt matter. [P] The Main Street Crips, which I hope to go into because of the predicate acts, it will be shown that one of their primary activities is the sale of drugs and, again, murder. [P So I think it hits a little bit too close to home.
"In addition, with this woman she had a Masters in psychology. [P] Were going to have two experts testifying in-depth in the area of psychology. I want jurors who are open— minded in this area, have not formed any preconceived opinions in this area. [P] Because she has a Masters and she had to have probably written a dissertation, I dont necessarily want someone with very strong opinions from outside sources. I want someone who can be open-minded. And so that also caused me concern. [P] So it didnt — there were objective reasons not based on race for her excusal.
"THE COURT: Okay. The motion is denied."
D. Fourth Wheeler Motion.
Cook made another Wheeler motion after the prosecutor had used his twelfth peremptory challenge to excuse an African-American prospective juror. The following exchange took place at sidebar:
"[Cooks counsel]: I dont want to belabor the point. I just want to renew it for the record because another Black has been excused and it appears that the District Attorney is systematically excluding them and finding reasons with whatever they say to come up with a reason to exclude another Black so I would await his answer on this one. [P] So I would just renew the motion and submit it.
"THE COURT: Hang on. Let me just look at my notes.
"[Pattons counsel]: I would join in the motion, Your Honor.
"THE COURT: I understand. [P] I do not find a prima facie case but the D.A. has an opportunity to make an additional record, if he wishes.
"[Prosecutor]: Sure. [P] With this juror, also he had minored in psychology, plus he indicated that he regularly watches Court T.V., which is something I had forgotten. But, again, I want someone with an open mind when it comes to the testimony of experts. [P] This whole case falls on witness identification. [P] Were going to have a defense expert who comes in and states a very strong opinion based on his knowledge of the area of psychology and memory. [P] Again, I want someone with a very open mind.
"In addition, I personally just — its a personal preference but Im aware of people who are so involved in the court process where they watch a lot of Court T.V. and get involved in courtroom things and I sometimes think that they have the view of, you know, Im going to be the one to find either the loophole or the missing link and make sure that justice gets done and sometimes I think they tend to over-analyze cases to the point where they lose sight of the forest through the trees, so to speak. [P] He indicated thats what he does in his spare time, he watches a lot of Court T.V. [P] That, coupled with the fact that he has studied psychology in school, I think he said he minored in it, causes me concern.
"THE COURT: Right. Also, I notice that he, apparently, had a number of relatives — this is the guy that was the only non-criminal in the family.
"[Prosecutor]: And I forgot to mention that but that was also — he had six people that had been
"THE COURT: Yeah. Two nephews, I think, that were involved in a drive-by and conspiracy to commit murder and fraud cases and three in minor things that he didnt go into. [P] I dont find a prima facie case so the motion is denied."
E. Fifth Wheeler Motion.
Before the prosecutor used his sixteenth peremptory challenge to excuse an African— American prospective juror, the following exchange took place at sidebar:
"[Prosecutor]: "Your Honor, maybe we can deal with this now. I intend — juror no. 10, male Black, maybe we can deal with that now. But I intend to kick him right now.
"THE COURT: I think the peremptory is with the defense first, but
"[Prosecutor]: What Im saying is while were up here.
"[Pattons counsel]: I can see some of the arguments he would be making, because it is another male Black and he has asked him some questions. We would just submit to the court. The court is evaluating each juror. The court is getting its own opinion.
"THE COURT: I can tell you that guy just bristled with hostility to everybody, but just his objective answers, it seems to me that they would be more than justified.
This prospective juror stated he was arrested for "propositioning" a psychiatrist, and the charges were later dismissed. He also stated he was placed on probation for a misdemeanor conviction for assault with a deadly weapon.
"[Cooks counsel]: We11 renew the motion, really only because of the numbers, the way its playing right now. He seems to be kicking a lot of Blacks.
"[Prosecutor]: Thats why I wanted to deal with it now.
"THE COURT: Id just point out, every time you guys kick a White juror means theres more Black jurors sitting up there on the panel.
"[Prosecutor]: Well, the District Attorney has not made a [Wheeler] motion.
"THE COURT: Im just pointing out, when you kick a White, that means there are more Blacks on the panel. So . . .
"[Prosecutor]: For the record, there are currently three black jurors on the panel.
"THE COURT: I will deem that youve made a [Wheeler] motion and I11 deny it when and if he does excuse that juror."
F. Applicable Law.
A defendant has a constitutional "right to trial by a jury drawn from a representative cross-section of the community." This right is violated when the prosecution uses "peremptory challenges to remove prospective jurors on the sole ground of group bias." The presumption is "a party exercising a peremptory challenge is doing so on a constitutionally permissible ground," but the presumption is rebuttable.
People v. Wheeler (1978) 22 Cal.3d 258, 272, 148 Cal. Rptr. 890, 583 P.2d 748.
People v. Wheeler, supra, 22 Cal.3d at pages 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89, 90 L. Ed. 2d 69, 106 S. Ct. 1712.
People v. Wheeler, supra, 22 Cal.3d at page 278.
Under Wheeler and Batson, " if a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, . . . he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias. [Citations.]" "In this context, in California, a "strong likelihood" means a "reasonable inference." "
People v. Howard (1992) 1 Cal.4th 1132, 1153-1154, 824 P.2d 1315 (italics omitted); People v. Wheeler, supra, 22 Cal.3d at page 280.
People v. McGee (2002) 104 Cal.App.4th 559, 568, quoting People v. Box (2000) 23 Cal.4th 1153, 1188, footnote 7.
"When a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial courts ruling. Because Wheeler motions call upon trial judges personal observations, we view their rulings with "considerable deference" on appeal. [Citations.] If the record "suggests grounds upon which the prosecutor might reasonably have challenged" the jurors in question, we affirm." We are mindful of the fact peremptory challenges "may be made on an apparently trivial or highly speculative basis," and indeed "may be made "without reason or for no reason, arbitrarily and capriciously." "
People v. Mayfield (1997) 14 Cal.4th 668, 723, 928 P.2d 485; People v. Box, supra, 23 Cal.4th at page 1188.
People v. Jones (1998) 17 Cal.4th 279, 294, 949 P.2d 890.
If the trial court finds the party has made a prima facie case, "the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone."
People v. Wheeler, supra, 22 Cal.3d at page 281.
G. The Record Suggests Race-Neutral Reasons for the Peremptory Challenges at Issue.
In this case, the trial court made an express finding of no prima facie case each time defendants made a Wheeler motion. Accordingly, we must determine whether the record " "suggests grounds upon which the prosecutor might reasonably have challenged" the jurors in question. "
People v. Mayfield, supra, 14 Cal.4th at page 723; People v. Box, supra, 23 Cal.4th at page 1188.
The prosecutor used seven of his first 16 peremptory challenges to excuse African— American prospective jurors. Cook takes issue with five of these seven challenges. Based on the entire record of voir dire, we find there were reasonable and race-neutral grounds for each of the challenges. Accordingly, we affirm the trial courts rulings.
In arguing he made a prima facie case under Wheeler and Batson, Patton does not address whether the record suggests race-neutral grounds for any of the peremptory challenges.
Prospective juror numbers 6 and 10 (originally number 20) were the subjects of the first Wheeler motion. Cook asserts "there was no race neutral justifications [sic] for the prosecution to strike [juror number 6] from the jury." Cook conveniently ignores the fact juror number 6 said he would have "some concern" about the credibility of the testimony of a police officer "from CRASH that just messes with gang members . . . ." This alone was a reasonable ground for excusing juror number six. The prosecutor called as a witness at trial Sergeant John Radtke, who was assigned to the 77th Street Gang Detail. Both defendants were charged with street gang participation.
Juror number 6 also expressed reservations about convicting a defendant based on one eyewitness identification, even if he believed the witness testimony, unless the witness could point to some distinguishing mark on the defendant, like a tattoo or a scar. Colleen Hodgkins was the only witness who identified Patton at trial. The only distinguishing characteristic she pointed out is Pattons bald head.
The prosecutor asked the prospective jurors whether the honest and accurate testimony of one eyewitness to a crime would be enough for them to convict a defendant. As discussed above, Colleen Hodgkins was the only witness who identified Patton at trial. After a discussion with a few of the jurors on this issue, the prosecutor asked, "Is there anyone else that has some concerns or hesitations with that?" The prosecutor noted for the record juror numbers 3, 10 (juror number 20 at the time), 16 and 25 raised their hands. Cook argues the fact juror number 10 did not actually say anything means "the record does not support the prosecutions challenge of this juror." We disagree. The jurors answer to this question was a sufficient and race-neutral ground for the challenge. The prosecutor also excused juror numbers 3, 16 and 25, the other three who had raised their hands in response to the same question.
Turning to the second Wheeler motion, Cook complains about the excusal of juror number 10. This juror stated his son was arrested for committing a drive-by shooting and the case against him was pending. We do not find it unreasonable for a prosecutor to want to excuse someone whose son is a criminal defendant in a serious matter. Cook claims this juror had pro-prosecution characteristics: One of his nephews was a police officer. Another nephew was "ambushed and killed" in an "organized crime" matter. He had been robbed three times, and his home had been burglarized. He said he could be fair. Our analysis does not involve a weighing of purported pro-prosecution and pro— defense characteristics. Because the record reveals a reasonable ground for this challenge, we reject Cooks attack and affirm the trial courts ruling.
Juror number 1 (originally number 15) was the focus of the third Wheeler motion. This juror said her brother was in prison for drugs and murder. One of the charges in this case was attempted murder. This juror also had a Masters in psychology. Throughout these proceedings, the prosecutor made it very clear he was concerned about jurors who had studied psychology because he thought they might not be able to keep an open mind when they listened to expert testimony on eyewitness identification. Neither Cook nor Patton complained when the prosecutor excused two other jurors who had studied psychology. Despite Cooks argument to the contrary, we do not need to know how long ago this juror studied psychology, what particular area she studied or whether she wrote a dissertation, to evaluate whether the prosecutor had a race-neutral reason for excusing her. We find he did.
The subject of the fourth Wheeler motion was juror number 1 (originally juror number 18). This juror had several relatives in prison for a variety of crimes, including a drive-by shooting and conspiracy to commit murder. He also had a degree in sociology with a minor in psychology. As explained above, we find these are sufficient grounds for the prosecutor to excuse a prospective juror. In his spare time, this juror watched "Court T.V." The prosecutor stated he believed people who "watch a lot of Court T.V." sometimes try "to find either the loophole or the missing link" and "they tend to over— analyze cases. . . ." We reiterate peremptory challenges "may be made on an apparently trivial or highly speculative basis."
People v. Jones, supra, 17 Cal.4th at page 294.
Based on our review of the entire record of voir dire, we find there were reasonable and race-neutral reasons for the prosecutors challenge of the prospective jurors at issue.
II. THE TRIAL COURT DID NOT ERR IN DENYING PATTONS MOTION TO EXCLUDE A PRE-TRIAL IDENTIFICATION.
Patton moved to exclude the pre-trial identification Colleen Hodgkins made when she met with the deputy district attorney in Orange County on the ground it was impermissibly suggestive. Patton alleged Colleen had seen him in court at the preliminary hearing in Orange County before she identified him in the photo lineup. The trial court held a hearing at which Colleen testified. Patton contends the trial court erroneously refused to allow him to question Colleen about "the circumstances" of her identification.
At the hearing, Pattons counsel told the court he wanted to examine Colleen about conversations she had with detectives before she made her identification. Specifically, he wanted to ask her what detectives told her about the Orange County case, and what they discussed on the drive to Orange County.
The trial court decided to bifurcate the hearing: First, it would allow counsel to question Colleen about whether she had seen Patton in court before the robbery. Then, it would rule on whether counsel could inquire about other matters. The court explained: "If [Colleen] did not see [Patton] before the identification, then it seems to me you would be limited to whether somebody pointed out somebody to her." Pattons counsel said he wanted to know if Colleens "head had been filled with these notions that Mr. Patton was essentially the person who committed the crime." The trial court responded: "How does she know who Mr. Patton is in the six pack? Thats the problem."
Pattons counsel examined Colleen. She said she was subpoenaed to testify at the preliminary hearing in the Orange County case. On the day of the hearing, she met with Deputy District Attorney Kralick. He showed her several six-packs. She identified both Cook and Patton in the photo lineups. Between the time of the robbery and the meeting with Kralick, she had not seen Patton in person. Nor had she seen Patton in any other photo lineup. Hours after she made her identifications, she testified at the preliminary hearing.
Pattons counsel said he had no further questions. The following exchange took place between the trial court and counsel:
"[Pattons Counsel]: Well, since Im limited to specifically asking her only as to what happened in the office and whether she saw Mr. Patton prior to picking him out of the lineup, and Im excluded from being able to ask her what happened before, then if she had any conversations [sic]. Im even excluded from asking her whether [Detective] Lankford had ever shown a photo of Mr. Patton or discussed Mr. Pattons alleged behavior in Orange County. [P] Its difficult based on the courts bifurcation and rulings to argue this motion. I think Mr. Pattons rights are being clearly violated here by not giving me any latitude to ask her what happened before this lineup.
"THE COURT: That wasnt the scope of my ruling, counsel.
"[Pattons counsel]: The courts ruling was to not allow me to ask any questions specifically as to what occurred prior to her picking him out of the lineup.
"THE COURT: Thats not what I said, counsel. If you go back, what I said was Im going to bifurcate the hearing. And I said if she did not see him before making the six-pack identification, you were limited in what you could ask as to what happened before. Im going to limit you to whether anything was done to suggest a particular person in a lineup. That was the scope up [sic] of what you were limited to. Not you were limited to nothing, so its clear.
"[Pattons counsel]: I was essentially limited to nothing, because the court said if I couldnt establish that she had seen him in court prior to picking him up [sic], picking him out of a lineup, then I wasnt able to ask anything else. When my whole argument is I need to be able to ask what happened before that. What she was told. What was put in her head.
"THE COURT: Well, I said if she was told to pick number 3, for example, you could have asked that.
"[Pattons counsel]: No. I want to know what happened before she went to Orange County.
"THE COURT: Im not going to let you go that route.
"[Pattons counsel]: Thats the whole point. Then I cant even determine whether — — I cant establish whether it was impermissibly suggestive or not. If I cant get into her head and find out what she was thinking, what she was told before getting into Orange County
"THE COURT: Well, if she was told something to suggest it was a particular person in the lineup, thats fair game. But it appears to me that you want to go much further than that and thats where I draw the line at.
"[Pattons counsel]: No, because the court is not allowing me to ask those questions. Thats exactly what I wanted to ask her; was something said by Detective Lankford, who set this up? How did they even find out about her in Lancaster from Orange County? Did somebody say something to her? What did she know about why she was going to Orange County? Those are all things that would go to whether or not there had been a suggestion made about who would be in the lineup.
"THE COURT: Okay. All right. You want to argue your motion?
"[Pattons counsel]: I would submit on the argument that based on — Ive got nothing to argue at this point, since the court has limited me so much.
"THE COURT: Okay. Then the motion is denied."
Pattons counsel never made an offer of proof, explaining what type of information he hoped to elicit through his proposed avenues of inquiry. We can think of several questions he could have asked within the scope of the trial courts ruling which would have gone to the issue of whether the photo lineup was impermissibly suggestive. For example, did someone tell Colleen she should pick the man in the lineup who had a certain characteristic (i.e., the bald man)? Did someone tell her the man who had robbed her store was definitely in one of the photo lineups or in a particular lineup? Rather than ask these and other similar questions, Pattons counsel cut the examination short.
The trial court gave counsel enough latitude to determine whether the lineup was unduly suggestive. Counsel failed to pursue the areas open to him or make an offer of proof. It is clear there was no error here.
III. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF THE HERITAGE JEWELERS ROBBERY.
Patton contends the trial court erred when it admitted evidence of the subsequent robbery of Heritage Jewelers to show identity, because this second robbery was significantly different from the charged offense. Patton also argues this other crimes evidence was unduly prejudicial, given the "prosecutions case [against Patton] was not overwhelming."
Evidence of uncharged offenses is not admissible to show a defendants propensity to commit crimes. It is admissible, however, to prove the defendants identity. "When, as in the instant case, a primary issue of fact is whether or not the defendant rather than some other person was the perpetrator of the crime charged, evidence of other crimes is ordinarily admissible if it discloses a distinctive modus operandi common to both the other crimes and the charged crime."
Evidence Code section 1101, subdivision (b).
People v. Haston (1968) 69 Cal.2d 233, 245, 70 Cal. Rptr. 419, 444 P.2d 91; People v. Crawford (1969) 273 Cal. App. 2d 868, 873, 78 Cal. Rptr. 628.
"The inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses."
People v. Haston, supra, 69 Cal.2d at page 246.
We review the trial courts decision to admit the evidence for abuse of discretion, keeping in mind this "discretion must in all cases be exercised within the context of the fundamental rule that relevant evidence whose probative value is outweighed by its prejudicial effect should not admitted." "If the inference [of identity] is weak, the probative value is likewise weak, and the courts discretion should be exercised in favor of exclusion."
People v. Haston, supra, 69 Cal.2d at page 246; Evidence Code section 352.
People v. Haston, supra, 69 Cal.2d at page 247.
In asking this court to affirm the ruling below, the People point to what they describe as a "distinctive pattern" in both robberies: "Two men would gain entry into the jewelry store after having been buzzed in. Co-appellant Cook would pose as a customer looking for something for a female. Distinctively, he paid in each instance with three one hundred dollar bills. Just at that point when the victims were relaxed and assured by the fact that he was given [sic] money[,] that there was nothing to fear, the assailants would pull out their guns. Their method was to then let other robbers in and to be sure to take out any videotape in the store security camera."
Cook and Patton were not "buzzed in" to Hodgkins Jewelry store. According to Colleen Hodgkins, the "buzzer door . . . was not in operation" the day of the robbery.
The trial court acknowledged the uncharged offense was not a "mirror image" of the charged offense. For example, Patton played a different role in the two robberies. In the Hodgkins Jewelry store robbery, Cooks partner let Patton into the store after he and Cook had secured the building. No one saw Patton with a gun during this robbery. In the subsequent robbery of Heritage Jewelers, however, it was Patton and Cook who secured the building after they pulled their guns. Then, they let a third man into the store.
After a fairly lengthy oral argument, the trial court decided to admit the evidence. The court found the key factor which made the two robberies sufficiently similar was the presence of Cook at both, and the presence of a third member of the Main Street Crips at the second. In support of its decision, the court relied on People v. Haston. There, the Supreme Court admitted evidence of two uncharged robberies the defendant had committed with the same partner. The court reasoned: "It is clear that McDowells presence, unlike the other features common to the charged and uncharged offenses, is a mark whose distinctive nature tends to differentiate those offenses from other armed robberies. There is only one Donald McDowell, and his conjunction with defendant in earlier robberies, together with his admitted participation in the robberies charged, supports the inference that defendant and not some other person was his accomplice in those charged offenses."
People v. Haston, supra, 69 Cal.2d 233.
People v. Haston, supra, 69 Cal.2d at page 249.
Patton claims Haston is distinguishable because there were additional men, other than Cook and Patton, present at both robberies. He argues his own admitted presence at the uncharged robbery does not indicate it was him, and not some other associate of Cook, at the charged robbery. In support of his position, Patton relies on People v. Crawford.
People v. Crawford, supra, 273 Cal. App. 2d 868.
In that case, the Court of Appeal reversed the trial courts decision to admit evidence of an uncharged robbery. Testifying at trial, defendant Crawford "denied any involvement in either robbery, although he admitted that he was present at the time of the [uncharged] robbery, having entered the store to buy cigarettes." Crawfords partner, Daniels, testified "Crawford was present at the time of the [uncharged] robbery but that Crawford was not involved in such robbery. According to Daniels, a third man participated with him in that robbery, and Crawford merely went into the store to buy cigarettes, although Daniels stated that he never saw Crawford in the store."
People v. Crawford, supra, 273 Cal. App. 2d at page 872.
People v. Crawford, supra, 273 Cal. App. 2d at page 872.
In reversing the decision to admit the evidence, the Court of Appeal concluded: "In the present case, unlike in Haston . . ., this highly distinctive common mark [i.e., the presence of Crawfords partner at both robberies] was vitiated by the presence and possible involvement of a third man. That is, three individuals were involved in the [uncharged] robbery, whereas only two persons participated in the first robbery. Additionally, there is a conflict in the testimony as to which two of the three men were the active participants in the perpetration of the [uncharged] offense."
People v. Crawford, supra, 273 Cal. App. 2d at page 874.
Moreover, the appellate court pointed out other "significant dissimilarities" between the uncharged and charged offenses: "The individuals in the first robbery carefully cased the liquor store before the offense and engaged an employee in extensive conversation; neither of these factors was present in the latter offense. Daniels accomplice in the first robbery gave only passive assistance, whereas in the second robbery his accomplice was an active participant. The discharge of the weapon in the first robbery was intentional, whereas in the second it was accidental. Lastly, the individuals involved in the first robbery made their escape on foot, whereas in the second robbery the persons involved drove away in two cars."
People v. Crawford, supra, 273 Cal. App. 2d at page 874.
Pattons reliance on People v. Crawford is misplaced. There, the Court of Appeal focused attention on the third man in the subsequent robbery because his presence made it unclear whether Crawford had participated in this uncharged offense. Crawford denied any involvement in both the charged and uncharged robberies. Here, in contrast, there was uncontradicted evidence Patton admitted not only his presence at the uncharged robbery, but also his participation. Thus, there was no question about Pattons involvement in the uncharged Heritage Jewelers robbery.
Colleen Hodgkins identified Patton as a participant in the charged offense. Patton attacked her testimony on the ground she did not have sufficient opportunity to observe him. The fact Patton participated with Cook in the subsequent Heritage Jewelers robbery is probative on the issue of whether Patton was the man Colleen saw with Cook the day her store was robbed.
We find the probative value of this evidence was not outweighed by concerns of undue prejudice. Evidence is prejudicial within the meaning of Evidence Code section 352 when it "uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues." The People "sanitized" the evidence to avoid undue prejudice to Patton. For example, the record indicates Patton either shot or pistol— whipped one of the owners of Heritage Jewelers. The jury did not hear any testimony about such events.
People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.
See People v. Perry (1985) 166 Cal. App. 3d 924, 931, 212 Cal. Rptr. 793 ("prejudice to the defendants could have been minimized had the trial court and the prosecution accepted defendants offer to stipulate to those aspects of the [uncharged] incident bearing on identity and modus operandi. Such sanitization would have met the prosecutions legitimate needs while avoiding contamination of the trial with the grotesque details of defendants already admitted offenses").
Based on the foregoing, we find the trial court did not abuse its discretion when it admitted evidence of the Heritage Jewelers robbery.
IV. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION FOR ROBBERY OF YENNIE.
Patton contends his conviction for robbery of David Yennie (count 3) was not proper because there is no evidence Yennie was in "joint possession" of any property. The People disagree, asserting "Yennie was a store employee present and in constructive possession of the property at the time of the robbery."
Penal Code section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." As Patton acknowledges, "if force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper." A person is in possession of property within the meaning of section 211 if he or she has "an ownership interest in the property taken, or some representative capacity with respect to the owner of the property taken, or actual possession of the property taken . . . ."
People v. Bekele (1995) 33 Cal.App.4th 1457, 1461, disapproved on another ground in People v. Rodriguez (1999) 20 Cal.4th 1, 13-14, 971 P.2d 618.
In support of his position, Patton relies on People v. Guerin. There, the Court of Appeal reversed the defendants conviction for robbery of a supermarkets box boy, but affirmed the convictions for robbery of two store employees who controlled separate cash registers from which the defendant stole money. The People argued the box boy "had constructive possession of the money under the immediate domination of" the other two employees. The Court of Appeal disagreed, concluding: "We can find nothing, other than that [the box boy] was a co-employee of the other [employees], to suggest that he had any dominion or control whatsoever over any money. As to him there was no taking and, thus, no robbery."
People v. Guerin (1972) 22 Cal. App. 3d 775, 99 Cal. Rptr. 573, disapproved on another ground in People v. Ramos (1982) 30 Cal.3d 553, 589, 180 Cal. Rptr. 266, 639 P.2d 908, footnote 16.
People v. Guerin, supra, 22 Cal. App. 3d at pages 782-783.
People v. Guerin, supra, 22 Cal. App. 3d at page 782.
People v. Guerin, supra, 22 Cal. App. 3d at page 782.
As the People point out, numerous California courts have criticized the Guerin decision. For example, in People v. Jones, the Court of Appeal found "Guerin is an anomaly in light of evolving case authority broadening the permissible range of robbery victims." In People v. Jones, the defendant "held up the administrative offices of a Kmart store." He forced several employees into the stores office and demanded one of them open the door to the cash room. The incident apparently did not go as planned, and the defendant fled the store without taking any property.
See, e.g., People v. Jones (1996) 42 Cal.App.4th 1047, 1055 ("even a market box boy has sufficient representative capacity vis-a-vis the owner so as to be in possession of the property stolen from the store owner").
People v. Jones (2000) 82 Cal.App.4th 485, 491.
People v. Jones, supra, 82 Cal.App.4th at page 487.
People v. Jones, supra, 82 Cal.App.4th at pages 488-489.
The appellate court affirmed four convictions for attempted robbery of a personnel manager, a sales associate, a pantry clerk and an inventory control clerk, concluding the fact "none of these employees had Kmart cash within their immediate control or possession . . . is not a critical factor." The Court of Appeal found all four employees were "subjected to force or fear during [the defendant]s attempt to steal their employers property" and "had a representative capacity to Kmart and a sufficient possessory interest in their employers property to be the victims of [the defendant]s attempted robbery."
People v. Jones, supra, 82 Cal.App.4th at pages 491-492.
People v. Jones, supra, 82 Cal.App.4th at pages 491-492.
Based on the evidence presented at trial, it is clear Yennie was a robbery victim. Although Yennie did not have an ownership interest in the property taken, and he was not in actual possession of any property at the time of the robbery, he certainly had a representative capacity with respect to Hodgkins Jewelry store. As a salesman, Yennie greeted and assisted customers who entered the store. In fact, he greeted and attempted to show some jewelry to the unidentified man who entered the store with Cook. As a regular part of his job, Yennie had access to and was in actual possession of the property which was taken. Had the robbery occurred first thing in the morning, Yennie would have been the only person in the store because he opened the store for business that day.
Based on the foregoing, there is sufficient evidence Yennie was in possession of the property taken within the meaning of section 211. Accordingly, we affirm the conviction for robbery of Yennie.
Patton does not dispute the robbers applied force to subdue Yennie. The man who entered the store with Cook pointed a gun at Yennie and ordered him to lie face-down on the ground.
V. THE TRIAL COURT DID NOT HAVE A SUA SPONTE DUTY TO INSTRUCT THE JURY WITH CALJIC 14.27.
With respect to count 2 for second degree robbery of Colleen Hodgkins, the jury found true the allegation Patton, "with the intent to do so, took, damaged and destroyed property of value exceeding $ 150,000 within the meaning of Penal Code section 12022.6(b)." The trial court imposed a consecutive eight-month term on this enhancement.
Using CALJIC 14.26, the trial court instructed the jury as follows: "When the value of property alleged to have been taken by theft must be determined, the reasonable and fair market value at the time and in the locality of the theft shall be the test. Fair market value is the highest price, in cash, for which the property would have sold in the open market at the time and in that locality, if the owner was desirous of selling, but under no urgent necessity to do so; if the buyer was desirous of buying but under no urgent necessity to do so; if the seller had a reasonable time within which to find a purchaser; and if the buyer had knowledge of the character of the property and of the uses to which it might be put."
For the first time on appeal, Patton contends the trial court should have instructed the jury with CALJIC 14.27, which provides: "An expression of value by the owner may be considered by you in determining value together with any evidence bearing on that issue. In determining what weight to give an owners opinion, you should consider the believability of the owner, the facts or materials upon which the opinion is based and the reasons for the opinion. [P] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved [or has been disproved], consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. [P] You are not bound to accept an opinion as conclusive, but you should give to it the weight which you shall find it to be entitled. You may disregard any opinion if you find it to be unreasonable."
"A trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. . . . [Citations.] This rule [also] applies to the "elements" of an "enhancement." [Citations.]"
People v. Marzet (1997) 57 Cal.App.4th 329, 339.
For purposes of the enhancement under section 12022.6, subdivision (b), the measure of a loss is the fair market retail value. The same principles applicable to a determination of fair market retail value under the theft statutes also are applicable under section 12022.6. "In the absence of proof . . . that the price charged by a retail store from which merchandise is stolen does not accurately reflect the value of the merchandise in the retail market, that price is sufficient to establish the value of the merchandise . . . ." "The test is what [the property] would bring in the open market, not its special value to the owner, nor its replacement cost."
People v. Swanson (1983) 142 Cal. App. 3d 104, 106-109, 190 Cal. Rptr. 768.
People v. Swanson, supra, 142 Cal. App. 3d at pages 106-109.
People v. Tijerina (1969) 1 Cal.3d 41, 45, 81 Cal. Rptr. 264, 459 P.2d 680.
People v. Cook (1965) 233 Cal. App. 2d 435, 438, 43 Cal. Rptr. 646.
The Hodgkins testified the retail value of the property taken was approximately $ 250,000. Patton acknowledges "The owner of property is a competent witness to testify as to its value." Patton did not present any evidence challenging the Hodgkinses testimony.
People v. More (1935) 10 Cal. App. 2d 144, 145, 51 P.2d 175; People v. Haney (1932) 126 Cal.App. 473, 475, 14 P.2d 854.
Patton agrees CALJIC 14.26 states the law correctly. We conclude CALJIC 14.27 does not state a general principle of law on which the trial court had a sua sponte duty to instruct.
VI. THE TRIAL COURT ERRED IN SENTENCING PATTON TO MORE THAN FIVE YEARS TOTAL ON THE SUBORDINATE TERMS.
Patton contends the trial court erred when it sentenced him to more than five years total on all of the subordinate terms. He asserts his sentence must be reduced by three years and four months to comply with section 1170.1, subdivision (a). The People concede the trial court erred, but disagree with Patton on the amount of the reduction. The People argue Pattons sentence need only be reduced by four months to comply with the law.
In 1996, when Patton committed the offenses at issue, section 1170.1, subdivision (a) provided, in pertinent part: "When any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed . . . . The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancement imposed . . . . In no case shall the total of subordinate terms for these consecutive offenses which are not violent felonies as defined in subdivision (c) of Section 667.5 exceed five years."
As the People concede, none of the offenses for which Patton was convicted constituted "violent felonies" under the 1996 version of section 667.5, subdivision (c). Therefore, the total of subordinate terms for the consecutive offenses could not exceed five years. Up to this point, the People and Patton agree.
The exception to the five-year limitation on consecutive subordinate terms under section 667.5, subdivision (c) does apply to Cook, however, based on the jurys finding Cook inflicted great bodily injury on Terry and Colleen. (Pen. Code, § 66.7, subd. (c)(8).)
In analyzing this issue, the People only consider the sentence the trial court imposed in this case. The court selected count 2 for second degree robbery of Colleen Hodgkins as the base count and imposed a sentence of three years, including the term for the enhancement. The People assert this is the principal term and, therefore, the total of subordinate terms in this case could not exceed five years. The court imposed a total sentence of five years and four months on all of the other counts. Thus, the People argue Pattons sentence must only be reduced by four months.
The trial court imposed the sentence in this case to run consecutively with the sentence imposed in the Orange County case. Therefore, Patton contends this court must consider not only the sentence imposed in this case, but also the sentence imposed in the Orange County case, in calculating the appropriate sentence under section 1170.1, subdivision (a). Patton asserts the sentence imposed in the Orange County case is the principal term because it is "the greater term." Therefore, the sentence imposed in this case is the subordinate term and could not exceed five years. The trial court sentenced Patton to a total term of eight years and four months in this case. Thus, Patton argues his sentence must be reduced by three years and four months.
See People v. Bozeman (1984) 152 Cal. App. 3d 504, 507, 199 Cal. Rptr. 343 ("the court properly selected the perjury sentence imposed in case 2 to be the principal term. The court then decided the sentence for second degree burglary in case 1 should be served consecutively to the perjury sentence. Having made that decision, the court had no choice but to impose a subordinate one-third middle term for the burglary").
The record before us does not include information about the nature of the convictions or sentence in the Orange County case. For example, we do not know the length of the term. Nor do we know whether Patton received an indeterminate or a determinate sentence. Under California Rules of Court, rule 4.452, "If a determinate sentence is imposed pursuant to section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case shall pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations: [P] (1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed shall be combined as though they were all counts in the current case. [P] The judge in the current case shall make a new determination of which count, in the combined cases, represents the principal term, as defined in section 1170.1(a)." Assuming Patton received a determinate sentence in the Orange County case, the trial court did not follow this procedure.
As the People concede, it is evident the trial court erred in sentencing Patton. Based on the record before us, we cannot determine the exact extent of the error. Accordingly, we vacate the order of sentencing, and remand the matter for resentencing in accordance with section 1170.1, subdivision (a) and the views expressed in this opinion.
VII. THE TRIAL COURT ERRED IN SENTENCING COOK.
A. The Trial Court Failed to State its Reasons for Imposing the High Term on the Firearm Use Enhancement.
Cook contends the trial court erred when it sentenced him to one-third the high term on the firearm use enhancement on counts 2 and 3 for robbery, and counts 4, 5 and 7 for assault with a firearm. Cook asserts section 1170.1, subdivision (a) required the court to impose one-third the middle term on this enhancement.
In 1996, when Cook committed the offenses at issue, section 1170.1, subdivision (a) provided, in pertinent part: "The subordinate term for each consecutive offense which is a violent felony as defined in subdivision (c) of Section 667.5 . . . shall consist of one— third of the middle term of imprisonment prescribed for each other felony conviction for an offense that is a violent felony for which a consecutive term of imprisonment is imposed, and shall include one-third of any enhancements imposed pursuant to" various sections of the Penal Code, including sections 12022.5 and 12022.7.
In People v. Sandoval, the Court of Appeal concluded the "plain meaning" of section 1170.1, subdivision (a) permits a trial court to sentence a defendant to one-third the high term on a gun use enhancement under section 12022.5. We reach the same conclusion. Despite Cooks argument to the contrary, nothing in the statute suggests the court must impose the middle term on an applicable enhancement. Instead, the statute permits a court to select an appropriate term of imprisonment on an enhancement, and then impose one-third of that term.
People v. Sandoval (1994) 30 Cal.App.4th 1288, 1302.
In the alternative, Cook asks this court to remand the matter for resentencing because the trial court did not state any reasons for imposing the high term on the firearm use enhancement. In response, the People argue the facts of this case support the courts selection of the high term.
Section 1170, subdivision (b) provides, in pertinent part, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . The court shall set forth on the record the facts and reasons for imposing the upper or lower term."
The trial court failed to state any facts or reasons supporting its selection of the high term on the firearm use enhancement. Thus, the court erred in sentencing Cook. We remand the matter for resentencing because we find the error was not harmless in light of the facts of this case. We are not convinced the trial court will be able to avoid an impermissible dual use of facts in selecting the high term on this enhancement.
People v. Sandoval, supra, 30 Cal.App.4th at page 1303, quoting People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684 (" where the sentencing court fails to state [its] reasons [for imposing the high term], remand for resentencing is not automatic; we are to reverse the sentence only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error" ").
B. The Trial Court Incorrectly Applied Two Enhancements on Counts 4 and 5.
Cook also contends the trial court erred when it applied two enhancements to his sentence on counts 4 and 5 for assault with a firearm. The People concede this error.
In 1996, subdivision (e) of section 1170.1 provided, in pertinent part: "When two or more enhancements under sections 12022, 12022.4, 12022.5, 12022.55, 12022.7, and 12022.9 may be imposed for any single offense, only the greatest enhancement shall apply." This provision listed certain crimes for which the trial court could impose more than one enhancement. Assault with a firearm was not one of them.
Accordingly, the trial court erred when it imposed both the enhancement for use of a firearm under section 12022.5 and the enhancement for infliction of great bodily injury under section 12022.7 on counts 4 and 5. The court selected the high term of 10 years on the firearm use enhancement, and sentenced Cook to one-third the middle term, or three years and four months. The court also sentenced Cook to three years and four months on the great bodily injury enhancement. The only permissible term for this latter enhancement under section 12022.7, subdivision (a), however, was three years. In 1996, like today, there was no low, middle and high term for this enhancement.
On remand, the trial court shall impose on counts 4 and 5 only the greater of the two enhancements, the firearm use enhancement (assuming the court again selects the high term and is able to state facts and reasons for imposing this term).
DISPOSITION
As to Patton, the order of sentencing is vacated, and the matter remanded for resentencing in accordance with section 1170.1, subdivision (a) and the views expressed in this opinion.
As to Cook, the order of sentencing is vacated, and the matter remanded with the following directions. The trial court shall set forth on the record, in accordance with section 1170, subdivision (b), the facts and reasons, if such exist, for imposing on counts 2 and 3 for robbery, and counts 4, 5 and 7 for assault with a firearm, the upper term on the firearm use enhancement under section 12022.5. The court also shall impose on counts 4 and 5 only the greater of the two applicable enhancements (either the firearm use enhancement or the great bodily injury enhancement under section 12022.7).
In all other respects, the judgments are affirmed.
We concur: WOODS, J., and MUNOZ (AURELIO), J.