Opinion
C057310
7-8-2009
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HERBERT DEWITT, Defendant and Appellant.
Not to be Published
Defendant William Herbert DeWitt was convicted by jury of two counts of second degree robbery. (Pen. Code, § 211.) The jury also found that defendant personally used a firearm during the commission of the robberies. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) Following a bifurcated hearing, the trial court found defendant to have four prior serious or violent felony convictions within the meaning of the "three strikes" law (§ 1170.12) and section 667, subdivision (a), and that defendant served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to state prison for an indeterminate term of 70 years to life, plus a consecutive determinate term of 60 years, and imposed other orders.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant brings two claims of evidentiary error, asserts that the prosecutor engaged in misconduct during closing argument, claims that the jury was improperly polled prior to the reading of the verdict, and finally asserts that two enhancement findings under section 667, subdivision (a) must be stricken because the convictions upon which the findings were based were not "brought and tried separately." We will modify the judgment as discussed herein and affirm as modified.
Defendant additionally argues that should his challenge to the admission of evidence and assertion of prosecutorial misconduct be deemed forfeited on appeal, his trial counsel rendered ineffective assistance by failing to preserve the issues for review. Because we reach the merits of these issues, we do not address defendants claim of ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
On a November afternoon in 2006 defendant entered Advance America, a check cashing business on Churn Creek Road in Redding, California, and robbed two tellers, Star Reed and Allison Harding, at gunpoint. Defendant pointed a .45-caliber handgun at Hardings face and said: "Give me all your fucking money." Harding removed the cash drawer and handed it to defendant. Defendant took roughly $500 in cash out of the drawer, leaving the $1 bills. He then turned the gun on Reed, who was standing motionless beside Harding, and said: "Do you think Im fucking kidding?" Reed also removed her cash drawer and handed it to defendant.
Not satisfied with the amount of money secured thus far, defendant came behind the counter and said: "You have to have more money. There has to be more than this." With the gun still trained on Reeds head, defendant told Harding to get down on the floor and ordered Reed to take him to the safe. Reed complied, leading defendant to the back room, opening the safe, and handing defendant a $100 packet of bait money comprised of sixty $1 bills with sequential serial numbers sandwiched between two $20 bills. Defendant took the money and told Reed: "[G]et the fuck down. Stay down." Defendant then returned to the front of the store, told Harding to stay on the floor for five minutes, and said he would shoot her if she got up before the time elapsed. Harding and Reed got up several minutes later; defendant was gone. Reed then called the police and described the robber as a white male in his late 50s, about six feet tall, weighing between 150 and 160 pounds, with blue eyes and light brown hair.
When the police arrived, Harding described the robber as being in his late 40s or early 50s, about six feet tall, with a medium build and short, light-brown hair. Reed also selected defendants photo out of a photo lineup, stating she was "100 percent" certain that he was the robber. She also identified defendant during the preliminary hearing and at trial. While Harding selected someone other than defendant out of the photo lineup, she also identified defendant as the robber during the preliminary hearing and at trial. Both Reed and Harding testified that they were "a hundred percent" certain that defendant was the man who robbed them at gunpoint.
Defendant is a white male, standing 5 feet 10 inches tall and weighing 150 pounds, and has blue eyes and blonde hair. He was 52 years of age at the time of the robbery.
Two days after the robbery, a Chevy Astro van with Washington license plates ended up in a ditch on the side of Highway 62 in Shady Cove, Oregon. Richard and Leona Haiker lived nearby, heard the van go into the ditch, and came out to render assistance. The van contained two occupants: a man was behind the wheel and a woman was in the passenger seat. When Mr. Haiker approached and informed the driver that he would need a tow truck, the driver said: "Thats what you get when a woman drives." Both the driver and his female companion were intoxicated. Mrs. Haiker went into the house to call a tow truck, but called 911 when she could not locate a tow truck company in the phone book. When the driver learned of this, he said: "Well, thats just what we need is the . . . cops." The woman came into the house to use the phone. The driver then knocked on the door, handed Mrs. Haiker a set of car keys, and said: "Beth might need these." The driver then "disappeared."
Officers Scott Waldon and Jody Saling of the Shady Cove Police Department arrived a short time later, identified the woman as Elizabeth Morgan, and placed her under arrest for driving under the influence. The Haikers informed the officers that the man who was with Morgan had disappeared. Officer Waldon then notified Deputy David Avery from the Jackson County Sheriffs Office that "an older gentleman, 40 to 50 years old," had fled the scene of a traffic accident. Deputy Avery immediately searched the area and found defendant, who matched the description, near a bank parking lot approximately five blocks from the scene of the accident, hiding behind some trees.
A search of Morgan revealed $1,293 in cash, including 49 of the 60 sequential $1 bills taken in the robbery, wrapped around her left knee with an Ace bandage. A search of the van uncovered a loaded .45-caliber semiautomatic handgun in a metal box on the floorboard of the front passenger seat. Police also found a set of photo key chains showing defendant and Morgan seated next to each other on a ride in Las Vegas at the Stratosphere Hotel.
As already indicated, defendant was convicted by jury on two counts of second degree robbery. The jury also found that defendant personally used a firearm during the commission of the robberies. Following a bifurcated hearing, the trial court found defendant to have four prior serious or violent felony convictions within the meaning of the three strikes law and section 667, subdivision (a), and that defendant served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to state prison for an indeterminate term of 70 years to life, plus a consecutive determinate term of 60 years, and imposed other orders.
DISCUSSION
I
Evidentiary Error
Defendants claim of evidentiary error is twofold. First, he claims the trial court erred by allowing Officer Waldon to testify that defendant was the man depicted in the photograph found in the van. Second, he claims the trial court erred by overruling defendants objection to Officer Averys testimony that the Shady Cove Police Chief had identified defendant as the man for whom they were looking. We will address each of these contentions in turn.
A
Prior to Officer Waldons testimony, defendants attorney moved the court to preclude the officer from testifying that defendant was one of the individuals in the photograph found in the van. The prosecutor responded: "I think I have every right to show that picture to the officer and ask him if he recognizes anyone in that picture thats present in court today." The trial court ruled: "I agree. Sure. . . . [T]hats essentially lay opinion testimony, which is relevant to issues at hand here, but ultimately, its for the jury to make the determination, and theyll have that picture in evidence as well." Officer Waldon subsequently testified that when he searched the van pursuant to a search warrant three days after defendant and Morgan were taken into custody, he found two souvenir key chains, each containing a photo of defendant and Morgan seated next to each other on a ride in Las Vegas at the Stratosphere Hotel.
Section 800 of the Evidence Code provides: "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." "Admission of lay opinion testimony is within the discretion of the trial court and will not be disturbed `unless a clear abuse of discretion appears. [Citations.]" (People v. Mixon (1982) 129 Cal.App.3d 118, 127 (Mixon).)
In Mixon, the Court of Appeal, Fifth Appellate District, followed this courts decision in People v. Perry (1976) 60 Cal.App.3d 608 in holding that two requirements must be met in order for lay opinion testimony to be admissible as to a defendants identity as the person depicted in a surveillance photograph: "(1) that the witness testify from personal knowledge of the defendants appearance at or before the time the photo was taken; and (2) that the testimony aid the trier of fact in determining the crucial identity issue." (Mixon, supra, 129 Cal.App.3d at p. 128.) As the court explained, "the identification or comparison made must be one the jury could not adequately have made for itself." (Id. at p. 129.)
Assuming that it was error for the trial court to allow Officer Waldon to testify that defendant was depicted in the photo on the key chain recovered from the van, we find this error to have been harmless. In light of the overwhelming evidence against defendant, most importantly the eyewitness testimony of both robbery victims that defendant was the man who robbed them, but also including the fact that defendant was found hiding behind some trees near a parking lot roughly five blocks from the crashed van containing the .45-caliber handgun, the fact that Elizabeth Morgan was identified at the scene of the accident and found to have the sequential $1 bills taken in the robbery strapped to her knee, and the fact that Mrs. Haiker testified she was 80 percent positive that defendant was the man who had handed her the keys to the van, saying, "Beth might need these," we find no reasonable probability that the jury would have reached a different result regarding defendants guilt had the court precluded Officer Waldon from testifying that defendant was the man depicted in the picture on the souvenir key chain found in the van. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Benavides (2005) 35 Cal.4th 69, 91 (Benavides) [noting that "generally, violations of state evidentiary rules do not rise to the level of federal constitutional error" and applying the Watson standard for harmless error].)
B
Deputy Avery testified that after he detained the suspect he found near the bank parking lot, the Shady Cove Police Chief arrived at the scene, looked at the suspect, and said "yes, this is who were looking for." Defendants attorney interjected: "Im going to object. Motion to strike. No foundation." This objection was overruled as untimely. Deputy Avery was then asked whether the Police Chief indicated how he knew the suspect in custody was the person they were looking for. Defendants attorney again objected, this time on hearsay grounds. This objection was sustained.
Defendant contends that his objection on foundation grounds should have been sustained because Deputy Avery lacked personal knowledge of the statement allegedly made by the Police Chief, and the Police Chief lacked personal knowledge that the man detained by Deputy Avery was indeed the person for whom they were looking. He cites People v. Valencia (2006) 146 Cal.App.4th 92 (Valencia), in which a witness testified at trial that a certain minor (L.) had told her that the defendant had been touching another minor (D.) for a certain period of time. (Id. at p. 102.) The court began by citing section 702, subdivision (a) of the Evidence Code: "[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter." The court then explained that where an out-of-court statement is offered for its truth, not only must the testifying witness have personal knowledge that the statement was made, but the hearsay declarant must also have personal knowledge of the facts stated. (Id. at pp. 103-104.) "In the absence of personal knowledge, a witnesss testimony or a declarants statement is no better than rank hearsay or, even worse, pure speculation. The admission of a hearsay statement not based on personal knowledge puts the fact finder in the position of determining the truth of a statement without knowledge of its source and without any means of evaluating the reliability of the source of the information." (Ibid.)
Here, Deputy Avery testified that the Police Chief stated defendant was the man for whom they were looking. Defendants claim is that, like the hearsay declarant in Valencia, the Police Chief was not shown to possess personal knowledge of the facts stated. Assuming that the court erred by failing to strike Deputy Averys testimony concerning the Police Chiefs out-of-court statement, this error was also harmless. In light of the overwhelming evidence against defendant, there is simply no reasonable probability that the jury would have reached a different result regarding defendants guilt had the court stricken this portion of Deputy Averys testimony. (Watson, supra, 46 Cal.2d at p. 836; see Benavides, supra, 35 Cal.4th at p. 91.)
Defendant further asserts that the trial courts failure to strike such testimony violated his right of confrontation under the Sixth Amendment to the United States Constitution. Not only was this claim forfeited by the failure to assert it in the trial court (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Rodrigues (1994) 8 Cal.4th 1060, 1118), it is without merit. "Not all erroneous admissions of hearsay violate the confrontation clause. [Citation.] As the high court held in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354], `[t]he confrontation clause "applies to `witnesses against the accused — in other words, those who `bear testimony. [Citation.] `Testimony, in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.]" [Citation.] Only the admission of testimonial hearsay statements violates the confrontation clause — unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. [Citation.] While the high court declined to precisely define what constitutes a `testimonial statement, it held that, at a minimum, testimonial statements include `prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations. [Citation.] The court explained that the confrontation clause addressed the specific concern of `[a]n accuser who makes a formal statement to government officers because that person `bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. [Citation.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 812-813 (Gutierrez).)
Here, the Police Chief made a casual remark informing Deputy Avery that defendant was the man for whom they were looking. This was not a formal accusation of wrongdoing and was therefore not a testimonial statement under Crawford v. Washington. (See Gutierrez, supra, 45 Cal.4th at pp. 808, 812-813 [three-year-old boys statement to his aunt that "`his daddy and his mean friend tied up his mommy" not testimonial because it was "more like `a casual remark to an acquaintance"]; see also People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19.) Admission of the Police Chiefs statement to Deputy Avery did not violate defendants Sixth Amendment right to confront witnesses.
II
Prosecutorial Misconduct
Defendant next contends the prosecutor engaged in misconduct during closing argument by (1) "suggesting that the defense had to answer certain questions before the jury could return a not guilty verdict, and in particular by suggesting that the defense needed to explain what [defendant] was doing in Shady Cove at the time of his arrest," and (2) "suggesting that a reasonable doubt could not be based on something not smelling right, but instead had to be a reason that a juror could articulate, . . . and by urging jurors not to pay attention to the absence of evidence in reaching its decision." We disagree.
A
Additional Background
In the Peoples closing argument, after reviewing the direct evidence with the jury, i.e., the testimony of Reed and Harding describing the robbery and identifying defendant as the robber, the prosecutor said: "You know, two separate 100-percent-sure identifications by the two victims in this case, that in and of itself should be enough for you to find the defendant guilty beyond a reasonable doubt." But, explained the prosecutor, there is also circumstantial evidence: defendants presence in Shady Cove two days after the robbery, less than half a mile from the van discovered in the ditch; Leona Haikers testimony that she was 80 percent sure that defendant was the man who had handed her the car keys before disappearing; the $1 bills taken in the robbery strapped to Elizabeth Morgans leg with an Ace bandage; defendants picture on the key chains found in the van; and the .45-caliber handgun, identified by Reed and Harding as the gun pointed at their heads during the robbery, found on the front passenger floorboard.
The prosecutor then reminded the jury that where there are two reasonable explanations for circumstantial evidence, one pointing to guilt and the other pointing to innocence, they are "required to pick the one that points to the defendants innocence." But, argued the prosecutor, the only reasonable explanation for all of the circumstantial evidence adduced during the trial points to defendants guilt. The prosecutor continued: "[A]nd if theres another reasonable explanation from the defense, I cant wait to hear it."
The prosecutor then argued that all of the evidence in this case — direct and circumstantial — "comes pretty close to guilt beyond any doubt whatsoever." "Not only do we have two victims identifying the man that robbed them as being this defendant, but we have this defendant two days later in the van with the stolen money. As I said, you know, if this isnt a case way, way beyond a reasonable doubt, I dont know what is."
Then comes the heart of defendants challenge to the Peoples closing:
"[The Prosecutor:] Im going to sit down in a minute and defense attorneys going to have his opportunity to address you, and you know, listen to him just as carefully as you listen to me, because both sides deserve a fair trial in this case, but before he asks you to legitimately find his client not guilty in this case, I want you to keep in mind and see if he answers some crucial questions regarding the facts of this case. Before —before he can ask you to find his client not guilty, see if he answers some of these questions that should be on your mind.
"[Defendants Counsel]: Your Honor, Im going to object at this point. I dont think the law requires my client to answer any questions. The burden of proof is on the People, and its not proper.
"The Court: Well, this is argument, and I will allow latitude in argument. Each of you can comment on one anothers points."
The prosecutor then identified a number of questions he wanted the jury to keep in mind, including: "How does he explain being alone in Shady Cove in some bushes just less than a half a mile and 20 minutes from the time that that van with the woman who had the stolen money had had an accident?" The prosecutor concluded: "Before he can legitimately ask you to say I want you to find my client not guilty, because theres a reasonable doubt in this case, he should have to answer those questions for you. You should have those questions in your mind, and until he answers those questions, I think the evidence is overwhelming that this defendant is guilty of all of the crimes and allegations beyond almost any possible doubt." (Italics added.)
B
Purported Misstatements of Law
Defendant asserts that the prosecutor misstated the law by suggesting that defendant was required to create reasonable doubt by answering certain questions posed by the prosecutor during his closing argument. We disagree.
As defendant suggests, "it is improper for the prosecutor to misstate the law generally (People v. Bell (1989) 49 Cal.3d 502, 538 []), and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements (People v. Gonzalez (1990) 51 Cal.3d 1179, 1215 [])." (People v. Marshall (1996) 13 Cal.4th 799, 831.) However, as our Supreme Court explained in Gonzalez, supra, 51 Cal.3d 1179, "once the prosecution has submitted proof that permits a finding beyond reasonable doubt on every element of a charge, the accused may obviously be obliged to respond with evidence that `raises or permits a reasonable doubt that he is guilty as charged. [Citations.]" (Id. at p. 1215.)
Here, the prosecutors closing argument reviewed all of the evidence — direct and circumstantial — establishing beyond a reasonable doubt that defendant robbed Reed and Harding at gunpoint. The prosecutor argued that this evidence went far beyond proof beyond a reasonable doubt: "[T]he evidence is overwhelming that this defendant is guilty of all of the crimes and allegations beyond almost any possible doubt." Only after reviewing this evidence with the jury did the prosecutor challenge defense counsel to respond by answering certain questions. The prosecutor even reminded the jury that where there are two reasonable explanations for circumstantial evidence, one pointing to guilt and the other pointing to innocence, they are "required to pick the one that points to the defendants innocence." This was not an improper attempt to absolve the People of the burden to prove defendants guilt beyond a reasonable doubt.
Rather, the prosecutor permissibly argued that the evidence established defendants guilt beyond a reasonable doubt, explained that any doubt concerning his guilt must be reasonable in order to acquit, and challenged defense counsel to provide a reasonable explanation for the overwhelming evidence of defendants guilt, including evidence of defendants presence in Shady Cove shortly after the crash and less than five blocks away.
Defendant also asserts that the prosecutor misstated the law by suggesting that the jury should not consider any perceived absence of evidence in deciding whether a reasonable doubt exists. Again, we disagree.
In the Peoples rebuttal argument, the prosecutor explained reasonable doubt as follows: "Beyond a reasonable doubt really means you have to have a doubt of the defendants guilt with a reason. You have to — you cant just say, well, you know, just I dont like this case or something just doesnt smell right or something. [¶] You have to be able to articulate a reason to your fellow jurors." Shortly thereafter, the prosecutor argued: "You know, lately in the past few years, you know, a lot of people get into the C.S.I. mentality. You know, they see all these police shows on T.V. and the movies and, you know, all the scientific tests that are done, and its gotten me to the point where I actually have to bring in criminalists to testify that we did the tests and we got nothing. You know, just because I dont want jurors to start, you know, wondering, well, you know, how come they didnt fingerprint the gun? You know, why didnt we hear any evidence of that? You know, they do that on T.V. [¶] So Im actually, you know, in the position of having to waste your time really by bringing in criminalists to say, yeah, I did examine the gun for fingerprints like they do on television, but I didnt get any fingerprints. [¶] So, you know, concentrate on the evidence that we have. Dont dwell on some evidence that we may not have, because theres no case where youre ever going to have all of the evidence that everybody hopes that we have. [¶] You know, this — Ive said this before. If this case isnt the closest thing to beyond any possible doubt, I dont know what is."
As defendant points out, reasonable doubt may arise from the evidence presented at trial as well as from the lack of evidence. (Johnson v. Louisiana (1972) 406 U.S. 356, 360 [32 L.Ed.2d 152, 158]; People v. Simpson (1954) 43 Cal.2d 553, 566.) Contrary to defendants assertions, the prosecutors statements in rebuttal did not suggest otherwise. The prosecutor was merely explaining to the jury that in assessing the Peoples case against defendant, it should look solely at the evidence presented at trial, not imaginary evidence that the jury wished would have been presented. The prosecutor did not tell the jury to ignore any perceived lack of evidence in assessing whether there was a reasonable doubt as to defendants guilt. Moreover, the prosecutors statements are in line with CALCRIM No. 220, which instructs the jury to consider only the evidence presented at trial, and to acquit unless the evidence proves defendants guilt beyond a reasonable doubt. (People v. Guerrero (2007) 155 Cal.App.4th 1264; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509.) We find no reasonable likelihood that the jury misunderstood the prosecutors comments to suggest that reasonable doubt could not be based on any perceived lack of evidence.
Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 220.
C
Griffin Error
Nor did the prosecutors challenge to the defense to supply some reasonable explanation for defendants presence in Shady Cove violate the United States Supreme Courts decision in Griffin v. California (1965) 380 U.S. 609 (Griffin ). Under the rule in Griffin, "the prosecution may not comment upon a defendants failure to testify in his or her own behalf." (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) "It is well established, however, that the rule prohibiting comment on defendants silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses." (People v. Medina (1995) 11 Cal.4th 694, 755 (Medina); see also People v. Mayfield (1993) 5 Cal.4th 142, 178-179; People v. Mincey (1992) 2 Cal.4th 408, 446 (Mincey); People v. Morris (1988) 46 Cal.3d 1, 35.)
In Medina, supra, 11 Cal.4th 694, the prosecutor argued in rebuttal that "the People had provided a `rational explanation why defendant was seen with a handgun by several persons at the times of the various robberies (namely, that defendant was armed for the purpose of committing robberies on those occasions), and then asked rhetorically, `Where was [defense counsels] rational explanation? How does he explain away the evidence . . . .?" (Id. at pp. 755-756.) The prosecutor then urged the jury to "reject unreasonable interpretations of the evidence `even if [counsel] had given us one, which he didnt." (Id. at p. 756.) And with respect to witnesses who testified to seeing the defendant in possession of both a weapon and a green Maverick, "the prosecutor observed, `[a]nd none of this evidence was explained. Nobody on the defense side — excuse me, the defense attorney did not explain this evidence and how it pointed to some other rational conclusion, because it doesnt, and he cant." (Ibid.) Our Supreme Court found it to be "apparent" that no prejudicial Griffin error occurred because "the prosecutors comments were directed to the general failure of the defense to provide an innocent explanation as to why defendant was armed, and in possession of the Maverick, at the time of the robberies. These remarks contained no references, express or implied, to defendants own silence, and therefore were unobjectionable." (Ibid.)
Similarly, in this case, the bulk of the prosecutors comments were directed to defense counsels failure to provide reasonable explanations for the evidence of defendants guilt. However, one inartfully posed question does suggest that the prosecutor was improperly commenting on defendants failure to testify: "How does he explain being alone in Shady Cove in some bushes just less than a half a mile and 20 minutes from the time that that van with the woman who had the stolen money had had an accident?" While the form of the question suggests a reference to defendants failure to testify, we believe that in light of the other questions asked by the prosecutor, the jury must have understood the prosecutor to be asking the defense, and not necessarily defendant himself, to explain defendants presence in Shady Cove. Contrary to defendants assertions on appeal, he is not the only person who could have provided such an explanation. If he had legitimate business in Shady Cove, or frequented the town for recreational purposes, anyone privy to defendants business or recreational plans could have provided a reasonable explanation for his presence in the town.
Moreover, even if we were to accept defendants characterization of the prosecutors remark, under the circumstances of this case, with such strong evidence of guilt, the error was certainly harmless beyond a reasonable doubt. (Mincey, supra, 2 Cal.4th at pp. 446-447.)
III
Improper Polling of the Jury
Defendant also claims the procedure the trial court used to poll the jury requires reversal of his convictions. We conclude that defendant has forfeited this claim of error by failing to object to the trial courts method of polling the jury.
Section 1163 provides: "When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if anyone answer in the negative, the jury must be sent out for further deliberation." In this case, the jury foreperson announced that the jury had reached a verdict and handed an envelope containing the verdict forms to the bailiff, who presented it to the judge. The court reviewed the forms and stated that they had been properly filled out and were "regular on their face." The court then, prior to having the clerk read the verdict, polled the jurors on each count and enhancement allegation separately. Each juror responded that the verdict on each count and enhancement allegation reflected his or her own personal verdict. The court then directed the clerk to read the verdict. After the reading, the court ordered that the verdict be recorded. Defendant did not object to this procedure.
Defendants failure to object to the trial courts method of polling the jury forfeits this claim of error on appeal. (People v. Lessard (1962) 58 Cal.2d 447, 452; People v. Flynn (1963) 217 Cal.App.2d 289, 294-295.)
IV
Sentencing Error
Defendants final contention on appeal is that two enhancement findings under section 667, subdivision (a) must be stricken because the convictions upon which the findings were based were not "brought and tried separately." We disagree that the enhancement findings must be stricken. However, we agree that the trial court erroneously imposed and then executed four five-year enhancement terms under section 667, subdivision (a) when only two of the convictions supporting these terms were on charges brought and tried separately. Accordingly, as to each of defendants convictions, two five-year enhancement terms must be stayed, and defendants sentence must be recalculated under section 1170.12. The Attorney General requests that we remand for resentencing because "under section 1170.12, subdivision (c)(2)(A), there are different ways of structuring a sentence for a defendant with two or more prior felony convictions." However, this section requires the trial court to sentence defendant to the "greater" of three statutory options. Because we can determine the "greater" of the three options just as easily as the trial court, we modify the judgment rather than remand for resentencing.
A
The Trial Court Improperly Imposed and Executed Four Five-Year Enhancements Under Section 667, Subdivision (a)
Section 667, subdivision (a)(1) provides, in relevant part: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately."
Our Supreme Court held in In re Harris (1989) 49 Cal.3d 131, 136 that "the requirement in section 667 that the predicate charges must have been `brought and tried separately demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." There, Harris was given two five-year enhancements under section 667, subdivision (a)(1) for two prior robbery convictions despite the fact that both robbery charges were leveled against him in a single complaint. (Harris, at p. 134.) Holding that Harris was subject to only one such enhancement as these charges were not brought separately, the court vacated Harriss sentence and remanded for resentencing. (Id. at p. 137.)
In this case, the trial court found that defendant had four serious felony convictions within the meaning of section 667, subdivision (a): three first degree robbery convictions in King County, Washington, on December 9, 1983, and one second degree murder conviction, also in King County, Washington, on January 3, 1991. The trial court imposed and then executed consecutive five-year terms for each of those prior convictions in calculating defendants indeterminate term of 70 years to life under section 1170.12, subdivision (c)(2)(A)(iii) and in calculating his consecutive determinate term of 60 years for the enhancements. Specifically, for each robbery conviction, the trial court imposed the upper term of five years, added a 10-year enhancement under section 12022.53, and added four five-year enhancements under section 667, subdivision (a), for an aggregate indeterminate term of 35 years to life for each conviction. To this indeterminate term, the trial court added a determinate term of 30 years to each conviction for the enhancements, again imposing and executing a 10-year enhancement under section 12022.53 and four five-year enhancements under section 667, subdivision (a).
The Attorney General concedes that "three of the four prior convictions in this case were on charges brought in the same charging document, and for which [defendant] was convicted and sentenced on the same date." Accordingly, as only two such convictions were on charges "brought and tried separately" within the meaning of section 667, subdivision (a), it was error for the trial court to impose and execute four five-year enhancements. However, rather than strike the enhancement findings, as defendant requests, we modify the judgment to stay execution of two of the enhancements. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1122-1123 [holding that after a trial court imposes and executes a firearm enhancement with the longest term under section 12022.53, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements "that were found true for the same crime" (italics added) must be imposed and then stayed rather than stricken]; Cal. Rules of Court, rule 4.447 ["No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit"].)
Where, as here, a defendant has four prior serious felony convictions, only two of which were brought and tried separately, the trial court must impose and then execute five-year enhancements for two of the convictions, and may not impose and then execute five-year enhancements for the remaining two convictions. However, as the trial court lacks discretion to strike the remaining allegations of prior serious felony convictions under section 1385 (see § 1385, subd. (b)), the appropriate course of action is to impose and then stay the remaining two enhancements. We modify the judgment to do so.
B
Defendants Sentence Must be Modified
Because the trial court used erroneously executed five-year enhancements under section 667, subdivision (a) in calculating defendants sentence, defendants sentence must be recalculated under section 1170.12, subdivision (c)(2)(A)(i)-(iii). Because we can determine the "greater" of the three options set forth in the statute just as easily as the trial court, we modify the judgment rather than remand for resentencing.
Section 1170.12, subdivision (c) provides: "For purposes of this section, and in addition to any other enhancements or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:
"(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.
"(2)(A) If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of
"(i) three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions, or
"(ii) twenty-five years or
"(iii) the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.
"(B) The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall not be merged therein but shall commence at the time the person would otherwise have been released from prison."
As our Supreme Court explained in People v. Dotson (1997) 16 Cal.4th 547 (Dotson): "Under the three strikes law, a trial court must sentence a defendant with two or more qualifying prior felony convictions or strikes to an indeterminate term of life imprisonment. These defendants `become eligible for parole on a date calculated by reference to a "minimum term." [Citation.] This minimum term of the indeterminate sentence is the `greater of three options. [§ 1170.12, s]ubd. (c)(2)(A)(i)-(iii).) (Fn. omitted.) Under the first option (option (i)), the defendants minimum indeterminate term is calculated by tripling `the term otherwise provided as punishment for the current conviction. [§ 1170.12, s]ubd. (c)(2)(A)(i).) . . . [¶] Option (ii) is 25 years. [§ 1170.12, s]ubd. (c)(2)(A)(ii).) While the terms under options (i) and (iii) will vary from case to case, option (ii) essentially acts as a default to ensure that the defendants indeterminate term will always be a minimum of 25 years. . . . [¶] Under option (iii), the defendants minimum indeterminate term is calculated, as relevant in this case, by adding applicable enhancements to the term selected for the current conviction. [§ 1170.12, s]ubd. (c)(2)(A)(iii).)" (Dotson, at pp. 552-553.)
In this case, option (i) yields an aggregate indeterminate term of 30 years to life (upper term of five years (tripled to 15 years) on each robbery conviction). Option (ii) yields an aggregate indeterminate term of 50 years to life (25 years to life on each robbery conviction). And option (iii) also yields an aggregate indeterminate term of 50 years to life (upper term of five years, plus a 10-year enhancement under section 12022.53, plus two five-year enhancements under section 667, subdivision (a), for a total of 25 years to life on each robbery conviction). Accordingly, the "greater" of the three options is either option (ii) or option (iii), and equals 50 years to life.
To this indeterminate term of 50 years to life must be added a consecutive determinate term for the enhancements. (§§ 1170.12, subd. (c)(2)(B), 669; Dotson, supra, 16 Cal.4th at p. 553.) Here, for each robbery conviction, a 10-year enhancement under section 12022.53 and two five-year enhancements under section 667, subdivision (a) must be imposed and executed, for an aggregate determinate term of 40 years to be served consecutively to defendants indeterminate term of 50 years to life.
DISPOSITION
The judgment is modified to stay execution of two five-year enhancements imposed under section 667, subdivision (a) with respect to each of defendants robbery convictions. Defendants sentence is modified as follows: Defendant is sentenced to an aggregate indeterminate term of 50 years to life (25 years to life imposed and executed on each robbery conviction) under section 1170.12, subdivision (c)(2)(A)(ii), to which is added a consecutive determinate term of 40 years (10-year enhancement under section 12022.53 and two five-year enhancements under section 667, subdivision (a) imposed and executed for each robbery conviction). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modifications, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
SCOTLAND, P. J.
BUTZ, J.