Opinion
D074163
04-21-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIELLE DUMONT et al., Defendants and Appellants.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Danielle Dumont. Kurt D. Hermansen and Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Alfred Murphy. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Nicoy Devonn Smith. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE359335) APPEALS from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Reversed in part and affirmed in part as to Defendant Murphy. Affirmed as to Defendants Dumont and Smith. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Danielle Dumont. Kurt D. Hermansen and Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Alfred Murphy. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Nicoy Devonn Smith. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On March 19, 2016, the body of Prince Brown was found with a bullet wound to the head in a motel room in El Cajon, California. After a review of the security camera footage and other evidence suggested Brown was murdered during a robbery gone awry, defendants Danielle Dumont, Alfred Murphy, and Nicoy Devonn Smith were charged with first degree murder (Pen. Code, § 187, subd. (a)). The information also alleged Murphy, who was determined to be the shooter, personally and intentionally discharged a firearm, resulting in great bodily injury or death. (§ 12022.53, subd. (d).) Smith and Dumont were also charged with an enhancement for being vicariously armed with a firearm during the commission of a felony. (§ 12022, subd. (a)(1).) The jury found all three defendants guilty as charged and concluded that Murphy was the shooter.
Further undesignated statutory references are to the Penal Code.
Defendants raise several challenges to their convictions on appeal. All three defendants contend that reversal is necessary because they may avail themselves on direct appeal to the ameliorative benefits of Senate Bill No. 1437, which changed the law regarding the felony-murder rule after they were sentenced. As we discuss, we agree with recent case law holding that a defendant seeking the benefits of Senate Bill No. 1437 must pursue relief via the statutory petitioning procedure established by that legislation.
Dumont additionally maintains the trial court erred in (1) denying her motion to sever the trials for the three defendants; (2) denying her motion for new trial; and (3) imposing fines and fees as part of her sentence without first determining her ability to pay those fines and fees.
Murphy contends (1) the court erred in admitting testimony from an expert witness who opined that the security camera footage depicted Murphy carrying an object consistent with a handgun the morning before the murder; (2) there is insufficient evidence to support the jury's finding that he personally used a firearm; (3) the trial court erred in denying his motion to sever his trial from his codefendants; and (4) the trial court erred by imposing a prior serious felony enhancement that was not alleged in the information.
Smith raises no challenges beyond those relating to Senate Bill No. 1437.
Other than Murphy's challenge to the imposition of the unalleged prior serious felony enhancement, we find no error. Accordingly, we reverse and remand for the resentencing of Murphy, but otherwise affirm the judgments as to all three defendants.
The defendants all join in each other's contentions to the extent they apply to all defendants. Finding no merit to any of the contentions beyond Murphy's challenge to the sentence enhancement applied to only his sentence, the defendants' joinders in each other's contentions also lack merit.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
On March 19, 2016, Prince Brown, a long-haul truck driver from Texas, checked into a motel room in El Cajon. Dumont was standing with Brown when he checked into the motel and had her own suitcase. Dumont later claimed that whenever Brown was in San Diego, he would spend time with her. After Brown checked into room 234, he talked by phone with a friend in Texas and sent a photograph of himself and Dumont in the room. Within an hour after Brown and Dumont entered room 234, Murphy was seen entering room 226.
The strongest evidence at trial revealing the defendants' involvement in Brown's murder was the motel's security camera video footage. The footage showed Dumont and another unidentified woman coming in and out of room 234 on the night of March 19, but Brown never left the room. Throughout the night and the next morning, Dumont was also seen going into other rooms at the motel and talking with other individuals, later identified as including Murphy and Smith.
The next morning, about two hours before Brown's murder, Murphy was seen on the video footage walking around the motel with an object under his shirt at hip level. An expert later opined the item was consistent with the shape of a firearm and that Murphy was carrying the object in the same manner that a person would carry a firearm. Around the same time, Dumont and the unidentified woman reentered room 234, Brown's room. Approximately one hour before Brown's murder, the other woman left room 234 and never returned.
At about 9:30 a.m., Dumont left room 234 and met with Smith at room 226, Murphy's room. The two entered the room. Shortly thereafter, Dumont walked out, holding a cell phone in one hand and a keycard in her other hand. She was wearing a dress; the video showed no bulges in the dress, suggesting she was not concealing a firearm or other object.
Dumont rejoined Brown, who was alone in room 234. Murphy slowly followed Dumont down the hall, while Smith remained behind watching Murphy. As Murphy approached Brown's room, Smith made a knocking motion in the air with his hand. Murphy, now wearing gloves, responded by knocking on the door of the room next to room 234. Following the knock, Murphy reached across his body to his hip, where he was still carrying an object consistent with the shape of a gun hidden under his shirt. When no one answered, Murphy walked back down the hall toward Smith. Murphy then walked toward Brown's room but stopped in front of the wrong door again. Before he knocked, Smith motioned toward him and Murphy moved to room 234, Brown's room. Murphy then entered room 234 at 9:35 a.m., joining Dumont and Brown inside.
At approximately the same time, the friend Brown had called the evening before received an incoming call from Brown. The friend testified that when he answered, Brown did not respond and the friend heard only silence. The friend then heard a woman say something with an angry tone, a male voice saying, "shut up," and then a gun shot.
The security camera footage showed Murphy running out of room 234 a little under a minute after he entered. As he ran down the hall, Murphy was holding onto the area around his belt buckle and clutching what appeared to be paper money in his other hand. Murphy then left the motel.
Seconds after Murphy's exit, Dumont left Brown's room carrying several bags with her and headed to room 226. Shortly before Dumont's arrival at room 226, Smith left that room and carried bags previously in the possession of Murphy down to the parking lot. He then returned to the hallway outside room 226 to wait for Dumont.
Dumont reappeared from room 226 in a new set of clothes and the two returned to the hallway outside room 234. Smith and Dumont appeared to be trying to open the window and door of room 234. In another attempt to get back inside the motel room, Dumont put on sunglasses and a glove and attempted to break the window of room 234 with an object wrapped in a towel. After she failed to break the window, Dumont and Smith carried some bags down to the parking lot, got into a car together, and drove away.
The police later found women's clothing and cell phones inside Brown's room, suggesting Dumont locked herself out of the room after the murder and was attempting to get back in to clear the room of her possessions.
Several hours later, a housekeeper found Brown's body in room 234. Brown had been shot in the back of his head, later revealed to be by a gun near or against his head. His wound was consistent with being shot while he was on his hands and knees.
During a search of the room, the police found items scattered around, including both male and female clothing, two cell phones, a large box of condoms, an opened condom wrapper, and a copper jacketing for a bullet. No gun, wallet, or paper money was found in the room.
Several weeks later, motel staff found Brown's wallet in the motel's laundry room, where it was found inside a plastic bag marked with a notation that it came from room 226 (the same room Dumont entered after leaving Brown's room immediately after the murder).
Subsequent DNA testing of the items found in Brown's room identified Dumont as a likely contributor to the DNA found on one of the cell phones. DNA found on Brown's wallet also matched Dumont. A genital swab taken from Brown's body also picked up DNA that matched Dumont.
At trial, a confidential informant testified that while he was in custody, Smith told him about the crime. Smith told the informant that "the girl" went into the room to get money from the "trick," her male customer, but when Smith sent "his boy" into the room to rob the man, the man "came up dead." Smith did not name the "girl" or the "boy."
At trial, Smith attempted to undermine the credibility of the informant with testimony from a retired prosecutor who opined that the informant received a reduced sentence based on his testimony. The District Attorney presented evidence disputing the claim that the informant received favorable treatment.
The jury also heard evidence about a prior incident where a man hired Dumont for sex at a casino, but she ran out of the room with his money.
The Defense Case
Of the three defendants, only Murphy testified in his own defense. At trial, he claimed that he went to the motel on the night before the murder to sell methamphetamine. He later ran into Smith, who was his girlfriend's cousin. On the morning of Brown's murder, Murphy testified that he gave Dumont drugs without payment after Smith vouched for her. He later went to collect payment from Dumont, claiming he first put on gloves "for intimidation purposes." According to Murphy, he went into room 234 to collect the money but saw a body on the ground, so he quickly grabbed some money off a nightstand and fled. Murphy denied having a gun and denied being involved in Brown's murder.
Dumont did not testify but called witnesses to testify that she had an existing relationship with Brown, but was not previously associated with Murphy or Smith before the night of the murder.
Jury Verdicts and Sentencing
After approximately a day of deliberations, the jury reached a verdict as to Murphy but was still undecided regarding the other two defendants. In its verdict as to Murphy, the jury found him guilty of first degree murder and found true the allegation that he intentionally and personally discharged a firearm, causing great bodily injury and death. At a bifurcated bench trial, the court found true the prior conviction allegations as to Murphy. Three days after it reached a verdict as to Murphy, the jury also found Smith and Dumont guilty of first degree murder and found they were both vicariously armed with a firearm during the commission of a felony.
At the sentencing hearing, the court granted Murphy's motion to strike his "strike prior" conviction, but declined to strike the firearm enhancement. The court sentenced Murphy to a total indeterminate prison term of 55 years to life, consisting of 25 years to life for the murder conviction, a consecutive term of 25 years to life for the firearm allegation, plus five years for an unalleged prior serious felony enhancement. The court sentenced Dumont and Smith to sentences of 26 years to life, consisting of an indeterminate term of 25 years to life for the murder conviction plus a one-year enhancement for being vicariously armed with a firearm.
Dumont, Murphy, and Smith all timely appealed.
DISCUSSION
I. Defendants Cannot Rely on the Changes to the Felony Murder Rule Under Senate Bill No. 1437 to Obtain a Reversal of the Judgment on Direct Appeal
After defendants' sentencing in June 2018, and while their appeals were pending, the Governor signed Senate Bill No. 1437 on September 30, 2018. (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).) "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189, as well as by adding section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (Id. at pp. 722-723.)
Here, all three defendants argue that under a variety of theories, the ameliorative statutory amendments of Senate Bill No. 1437 apply retroactively and that this court should apply the new law to reverse their convictions. We disagree and join the Martinez court and several other courts that have already considered and rejected the same arguments appellants raise in this appeal.
In Martinez, the Second District relied on analogous Supreme Court opinions to conclude the new petitioning procedure under section 1170.95 provided the exclusive means by which a person convicted of murder could seek relief under Senate Bill No. 1437, even for defendants with pending appeals. (Martinez, supra, 31 Cal.App.5th at pp. 727-729.)
Under this new legislative scheme, section 1170.95 creates a mechanism for eligible defendants to seek resentencing if they believe they could not be convicted of first or second degree murder under the amended versions of sections 188 and 189 found in Senate Bill No. 1437. As relevant here, subdivision (a) of section 1170.95 provides that "[a] person convicted of felony murder or murder under a natural and probable consequences theory" may petition the trial court to vacate the murder conviction and resentence the defendant on any remaining counts if three conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.
"(3) The petitioner could not be convicted of first or second degree murder because of changes to [Penal Code] Section[s] 188 or 189 made effective January 1, 2019."
Pursuant to this new procedure, a defendant must file a petition with the sentencing court and include a declaration that he or she meets the above criteria. (§ 1170.95, subd. (b)(1)(A).) If the court determines the petitioner has made a prima facie showing of eligibility, it must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subds. (c), (d)(1).) At that hearing, the prosecutor bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.)
In Martinez, the court concluded the procedure set forth in section 1170.95 "underscores the legislative intent to require those who seek retroactive relief to proceed by way of that statutorily specified procedure." (Martinez, supra, 31 Cal.App.5th at p. 727.) "Providing the parties with the opportunity to go beyond the original record in the petition process, a step unavailable on direct appeal, is strong evidence the Legislature intended for persons seeking the ameliorative benefits of Senate Bill No. 1437 to proceed via the petitioning procedure. The provision permitting submission of additional evidence also means Senate Bill No. 1437 does not categorically provide a lesser punishment must apply in all cases, and it also means defendants convicted under the old law are not necessarily entitled to new trials. This, too, indicates the Legislature intended convicted persons to proceed via section 1170.95's resentencing process rather than avail themselves of Senate Bill No. 1437's ameliorative benefits on direct appeal." (Id. at p. 728.)
Other courts have followed the lead of Martinez and found the ameliorative benefits of Senate Bill No. 1437 cannot be pursued on direct appeal but rather must be sought by following the statutory procedure found in section 1170.95. (See, e.g., People v. Cervantes (2020) 46 Cal.App.5th 213, 218; People v. Anthony (2019) 32 Cal.App.5th 1102, 1153; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113 (review granted on other issues Nov. 13, 2019, S258175); In re R.G. (2019) 35 Cal.App.5th 141, 151; In re Cobbs (2019) 41 Cal.App.5th 1073, 1081; People v. Munoz (2019) 39 Cal.App.5th 738, 749-753.)
These cases considered not only the direct application of Senate Bill No. 1437 as a basis for relief, but also related claims based on the new legislation, including that the change in law rendered the jury instructions given at trial to now be erroneous. (See, e.g., Martinez, supra, 31 Cal.App.5th at p. 724.) Here, defendants raise no novel claims regarding the application of Senate Bill No. 1437 that avoid the reasoning of Martinez and its progeny.
Instead, defendants argue that Martinez and the resulting line of cases were all wrongly decided. We agree with the reasoning of Martinez and its progeny and adopt it as our own. Defendants may seek relief under Senate Bill No. 1437 by filing a petition pursuant to section 1170.95 directly in the superior court.
Dumont and Smith request that this court stay the appeal for the purpose of a limited remand to the superior court to allow them to file a section 1170.95 petition. (See, e.g., Martinez, supra, 31 Cal.App.5th at p. 729.) We deny their respective requests to stay this appeal.
II. The Trial Court Did Not Err by Denying Dumont and Murphy's Motion for Separate Trials
Both Dumont and Murphy argue the trial court erred in denying their requests to sever the case and allow each defendant to be tried separately. Dumont and Murphy both contend they should have been tried separately because their defenses were antagonistic. Additionally, Murphy alone argues the cases should have been severed because his right to confront Smith as a witness was violated when he and Smith were jointly tried, making it impossible to question Smith regarding Smith's statements to the confidential informant which were admitted at the joint trial. Both defendants fail to establish any abuse of discretion by the trial court.
Although Smith generally joins in the contentions raised by the other defendants, he does not specifically challenge the trial court's denial of the severance motions. A generalized joinder in a codefendant's arguments on appeal without an individualized argument as to why the contention applies may be disregarded as waived. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.)
A. Background
Before trial, Murphy moved to sever his case from the other two defendants. He argued that he and Dumont would have antagonistic defenses because they would each be seeking to persuade the jury that the other defendant was the shooter. Dumont's counsel filed a declaration joining in the severance motion.
The trial court denied the motion. Noting the preference for joint trials, the court acknowledged the defenses could be somewhat antagonistic, but concluded the competing defenses were "not so prejudicial that it would affect each defendant's ability to have a fair trial."
Separately, Murphy argued severance was required because the admission of the confidential informant's testimony regarding statements made by Smith violated his rights under People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton), which limit the ability of prosecutors to introduce incriminating statements made by one defendant in a joint trial involving multiple defendants. Murphy asserted that allowing the informant to testify that Smith said he sent his "boy" into the motel room violated Murphy's right to confront Smith given Smith was exercising his right to not testify at trial.
The trial court disagreed, finding that Smith's statement was admissible as a declaration against interest and that there were no issues with admissibility under Aranda/Bruton.
B. Relevant Legal Principles
" 'The applicable law is settled. The Legislature has expressed a preference for joint trials; therefore, two or more defendants jointly charged with crimes must be tried together unless the court orders separate trials. (Pen. Code, § 1098; [Citations].) Joint trials promote efficiency and help avoid inconsistent verdicts. [Citations.] "[I]mportant concerns of public policy are served if a single jury is given a full and fair overview of the defendants' joint conduct and the assertions they make to defend against [the] ensuing charges." [Citation.] The court has discretion to order separate trials if there is an incriminating confession, prejudicial association, likely confusion due to evidence on multiple counts, conflicting defenses, or the possibility that a codefendant might provide exonerating testimony at a separate trial. [Citation.] Prejudicial association might exist if "the characteristics or culpability of one or more defendants [is] such that the jury will find the remaining defendants guilty simply because of their association with a reprehensible person, rather than assessing each defendant's individual guilt of the crimes at issue." [Citation.] We review the court's denial of severance for abuse of discretion based on the facts as of the time of the ruling. If the court properly denied severance at the time, the reviewing court may reverse a judgment only if it finds that the joint trial caused gross unfairness that denied due process. [Citations.]' " (People v. Anderson (2018) 5 Cal.5th 372, 386-387.)
"When defendants are charged with having committed 'common crimes involving common events and victims,' as here, the court is presented with a 'classic case' for a joint trial." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Simply because the defenses may be antagonistic does not compel severance. " ' "If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.' " [Citation.]' [Citation.] Instead, antagonistic defenses support severance 'only where the acceptance of one party's defense precludes the other party's acquittal.' [Citations.] If the moving party's guilt can be established by sufficient independent evidence, 'it is not the conflict alone that demonstrates . . . guilt,' and severance is not required. [Citations.]" (People v. Winbush (2017) 2 Cal.5th 402, 456.)
Joint trials may also be inappropriate when the prosecution seeks to introduce a statement by a non-testifying codefendant implicating another defendant. Where a defendant's prior statement is facially incriminating of the codefendant, it generally may not be admitted at a joint trial, even with a limiting instruction, unless it is properly sanitized. (Bruton, supra, 391 U.S. at pp. 135-136; Aranda, supra, 63 Cal.2d at p. 530; People v. Capistrano (2014) 59 Cal.4th 830, 874, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 103-104.) However, " ' "this narrow exception should not apply to confessions that are not incriminating on their face, but become so only when linked with other evidence introduced at trial." ' " (Capistrano, at p. 869.)
Bruton was expressly premised on a defendant's Confrontation Clause rights. (Bruton, supra, 391 U.S. at pp. 126-128.) "The Confrontation Clause of the Sixth Amendment provides: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' In Crawford v. Washington [(2004) 541 U.S. 36], [the United States Supreme Court] held that this provision bars 'admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' A critical portion of this holding . . . is the phrase 'testimonial statements.' Only statements of this sort cause the declarant to be a 'witness' within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Davis v. Washington (2006) 547 U.S. 813, 821; accord, People v. Hopson (2017) 3 Cal.5th 424, 431.) If the statement in question is nontestimonial hearsay, the Bruton court's confrontation clause analysis is inapplicable. (See, e.g. People v. Cortez (2016) 63 Cal.4th 101, 129; Almeda, supra, 19 Cal.App.5th at pp. 362-363.)
We apply only Bruton here because "[t]o the extent Aranda 'require[d] the exclusion of relevant evidence that need not be excluded under federal constitutional law, it was abrogated in 1982 by the "truth-in-evidence" provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)).' (People v. Fletcher (1996) 13 Cal.4th 451, 465)" (People v. Almeda (2018) 19 Cal.App.5th 346, 362, fn. 5 (Almeda).)
It is well established that statements to a cellmate in an informal setting, even when that cellmate acts as an informant by later providing information to law enforcement about the defendant's statements, are not testimonial. (Almeda, supra, at pp. 362-363; see also Davis v. Washington, supra, 547 U.S. at p. 825 [statements from one prisoner to another, made unwittingly to an informant, are "clearly nontestimonial"].) If a statement is non-testimonial, " 'it does not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule.' " (People v. Arceo (2011) 195 Cal.App.4th 556, 573.)
C. Analysis
Dumont and Murphy contend the trial court abused its discretion in finding that separate trials were not necessary because their defenses were not sufficiently antagonistic to warrant severance. This argument lacks merit.
We agree Murphy's and Dumont's defenses are antagonistic to the degree they intended to place blame on the other, but this is not the type of case where only one defendant could be found guilty. Indeed, the jury could have accepted Dumont's argument that she was not involved in the scheme between Smith and Murphy while also accepting Murphy's argument that the evidence was insufficient to support his guilt. Although the jury concluded otherwise and found all three defendants guilty, nothing in the evidence presented or arguments made by any party required the jury to find that the innocence of one defendant required finding another defendant guilty.
As Dumont concedes, no California court has reversed a conviction on the basis that antagonistic defenses compelled severance of the codefendants' trials. This is not the case to break new ground. " ' "Mutual antagonism" only exists where the acceptance of one party's defense will preclude the acquittal of the other.' " (People v. Hardy (1992) 2 Cal.4th 86, 168.) Here, although the jury rejected all of the defendants' defenses, it was possible for the jury to accept one of the defenses and still acquit the other defendants. As such, the trial court did not abuse its discretion in declining to sever the trials on this basis.
Additionally, the trial court did not violate Murphy's rights under the Confrontation Clause by allowing the informant's testimony regarding Smith's statements in the joint trial. Because Smith's statements to the informant were not testimonial, the Confrontation Clause has no application in this context. (Almeda, supra, 19 Cal.App.5th at pp. 362-363 [statements to cellmate serving as informant are not testimonial].) Accordingly, state hearsay principles govern the admissibility of the statements. (People v. Arceo, supra, 195 Cal.App.4th at p. 573.)
Here, the trial court did not abuse its discretion in finding Smith's statements were admissible under the exception to the hearsay rule for statements against penal interest. (Evid. Code, § 1230.) "Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content." (People v. Sanchez (2016) 63 Cal.4th 665, 674.) "Hearsay is generally inadmissible unless it falls under an exception." (Ibid.) One such exception permits the admission of any statement that "when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) "[T]he rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements." (People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).)
"To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.] 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation] [¶] We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. [Citation.] Whether a trial court has correctly construed Evidence Code section 1230 is, however, a question of law that we review de novo." (Grimes, supra, 1 Cal.5th at pp. 711-712.)
Here, the informant testified that while he and Smith were incarcerated together, Smith told him about Brown's murder. Smith told the informant that "when the girl went into the room to get the money, somehow the trick [i.e., the person that hired the prostitute] came up dead." Smith said he sent "his boy" in there to rob them. Smith did not name either the "boy" or the "girl."
The court allowed this testimony on the basis that Smith's statements fell within the hearsay exception for statements against penal interest. We see no abuse of discretion by the trial court. First, Smith was unavailable because he exercised his right to not testify at trial, a point Murphy does not dispute. Second, Smith's statement was directly against his penal interest, inculpating him and placing him in the position of ringleader by admitting he sent Murphy into Brown's motel room. Murphy contends that the statement was exculpatory because it identified "the boy," i.e. Murphy, as the direct perpetrator, not Smith. However, as the jury's guilty verdict shows, Smith's admission that he directed Murphy to enter Brown's room to commit robbery is by no means exculpatory. Third, nothing in the circumstances surrounding Smith's statement to the informant suggest his statement was unreliable because he was attempting to curry favor or seek a more favorable penalty. Smith's admission was in accordance with the video footage showing Smith remaining outside of the room, giving credence to his version of events. Given that the statement matches the actual evidence, there is no reason in the record to find Smith's statement to be unreliable. On this record, the trial court did not abuse its discretion by allowing the informant to testify at the joint trial.
Accordingly, the trial court did not abuse its discretion in allowing the joint trial of Murphy and Smith. The defenses made at trial were not sufficiently antagonistic to warrant severance. The informant's statement did not implicate Bruton and was properly admissible under an exception to the hearsay rule concerning statements against penal interest. The evidence actually adduced at trial and the arguments made by counsel do not undermine the trial court's pre-trial ruling.
III. The Trial Court Did Not Err by Permitting Expert Opinion Testimony Regarding Whether Murphy Was Carrying an Object Consistent with a Firearm
Murphy challenges the trial court's evidentiary ruling permitting the prosecution's expert, Grant Fredericks, to offer expert opinion testimony that the surveillance video footage shows Murphy carrying an object on his left hip that was consistent with the shape, size, and movement of a handgun. Murphy contends that Fredericks's testimony regarding what he perceived the video to depict was inadmissible expert opinion testimony because it concerned a subject within the common knowledge and experience of ordinary jurors and therefore intruded upon the jury's factfinding role at trial. Reviewing Fredericks's testimony, we see no abuse of discretion by the trial court.
A. Background
Prior to trial, Murphy moved to preclude Fredericks's testimony, contending it was not admissible under Evidence Code sections 352, 801, and 802. In opposition, the prosecution explained that Fredericks would rely on his expertise that allows him to "notice detail and camera function that is beyond the layperson's experience." Specifically, the prosecution indicated that Fredericks would testify that, in his opinion, the video shows "that Murphy entered Brown's room while he carried an object fixed to the area of his left hip and covered by his shirt. The object is consistent in size and bulk with a handgun and was carried by Murphy in a manner consistent with how a concealed handgun is often carried."
At a hearing on the motion, the trial court initially granted Murphy's motion to exclude Fredericks's opinion testimony regarding the handgun. However, the court later granted the prosecution's motion asking the court to reconsider its ruling, leading the court to hold a hearing pursuant to Evidence Code section 402, outside the presence of the jury, to allow the court to consider the admissibility of Fredericks's testimony regarding the handgun. Fredericks testified regarding his qualifications in "forensic video analysis." Reviewing a series of still frames taken from the video, Fredericks explained how he was able to determine that the object under Murphy's shirt moved independently from Murphy's shirt, maintained its shape across multiple frames, and was not an artifact of video compression errors. Based on this testimony, the court reconsidered its previous ruling and found that Fredericks's testimony was admissible expert opinion testimony.
Fredericks repeated this testimony at trial, opining that the security camera video showed that earlier on the morning of Brown's murder and when Murphy approached Brown's motel room, Murphy was carrying and concealing an object under his shirt on his left hip. Reviewing video of Murphy walking, Fredericks opined that his manner of walking with his left hand stationary at his side while his right arm was swinging indicated Murphy was supporting the object with his hand in a manner consistent with a person carrying a handgun in their waistband hidden under a shirt. Fredericks concluded that the object on Murphy's hip was consistent with a handgun.
Based on this testimony and other evidence adduced at trial, the jury found true the allegation that Murphy personally discharged a firearm, murdering Brown.
B. Relevant Legal Principles
The Evidence Code establishes the standards for assessing the admissibility of expert opinion evidence. "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801.) An opinion based in whole or in part on an improper matter may be excluded. (Id., § 803.) To determine the admissibility of an expert's opinion evidence, the court may in its discretion require examination of an expert "concerning the matter upon which his opinion is based" before the expert is allowed to testify. (Id., § 802.)
These statutes establish two requirements for the admissibility of expert testimony: (1) the subject matter of the testimony must be sufficiently beyond common experience to assist the trier of fact and (2) the testimony must be based on a proper matter, either personal knowledge or any other matter upon which experts in the field may reasonably rely. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) "Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres (1995) 33 Cal.App.4th 37, 45.)
"A trial court's decision to admit expert testimony is reviewed for abuse of discretion." (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
C. Analysis
Murphy asserts that Fredericks's testimony that Murphy was carrying an object consistent with a firearm on his hip was inadmissible because a jury viewing the same video footage could have reached the same conclusion just as intelligently as Fredericks did. He concedes Fredericks's expertise as a former law enforcement officer supports the conclusion that he "had some specialized knowledge and experience concerning what a concealed firearm looks like and how someone carries a concealed firearm." But Murphy maintains Fredericks's opinion testimony was inadmissible because an ordinary juror could review the video footage without any expertise and determine whether Murphy was carrying a gun.
The People rely on People v. Singleton (2010) 182 Cal.App.4th 1 (Singleton), to support their contention that Fredericks's testimony was admissible. In Singleton, a police officer was charged with assaulting an arrestee. (Id. at p. 5.) At trial, the police officer testified that his use of force was justified to restrain the arrestee because he lost control while transporting him. (Id. at p. 10.) A retired police officer offered opinion testimony in support of the prosecution's case, opining that video footage showed the defendant in control of the arrestee throughout the incident, contradicting the defendant's testimony. (Ibid.) Defendant argued the officer's testimony was inadmissible because he simply viewed the video footage and offered testimony about what it depicted, a matter not beyond the common experience of the jurors. (Id. at pp. 20-21.) The appellate court disagreed, explaining that the officer "did not merely describe the video recording images, but interpreted them as an experienced police officer." (Id. at p. 21.)
Here, Fredericks's testimony bears a resemblance to the expert's testimony in Singleton. Fredericks did not merely describe Murphy's actions and appearance captured by the security cameras; he interpreted the video by comparing different frames and explaining how the images support an inference that Murphy was carrying an object consistent with a handgun and how Murphy's gait, combined with the images suggesting an object in the shape of a gun, bolstered that conclusion. An ordinary juror may have experience watching videos, but such a juror's experience in watching relatively low-quality security camera footage to ascertain whether a person is concealing a handgun in his waistband is sufficiently beyond the common experience of the jurors such that Fredericks's testimony would likely assist a jury. The trial court, which has ample experience considering the ability of jurors, did not exceed the bounds of reason in permitting Fredericks to testify. Seeing no error under California's evidentiary law, we likewise conclude Murphy's federal due process claim based on the same claim of error necessarily fails. (People v. Riccardi (2012) 54 Cal.4th 758, 809-810 [the "routine and proper application of state evidentiary law does not impinge on a defendant's due process rights"].)
IV. The Jury's Verdict Regarding Murphy's Personal Use of a Firearm Is Supported by Sufficient Evidence
Murphy challenges the sufficiency of the evidence to support the jury's true finding that he personally discharged a firearm, leading to the imposition of the sentencing enhancement under section 12022.53, subdivision (d). As framed by Murphy, he contends the evidence at trial showed only that he and Dumont were in the motel room when Brown was shot and the prosecution introduced no evidence to show which of the two defendants pulled the trigger. Thus, he concludes the jury could only guess he was the shooter, requiring reversal.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
"In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]' [Citation.] ' "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." ' " (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Here, Murphy compares this case to People v. Allen (1985) 165 Cal.App.3d 616 (Allen), in which two codefendants, both armed, were in a kitchen alone with the victim when he was shot and killed. (Id. at p. 621.) The jury found that both defendants personally used a firearm in the commission of the murder, but the Court of Appeal concluded that although the evidence was sufficient to establish each defendant was present and participated in the murder, the evidence was insufficient to establish which of the two defendants was the shooter. (Id. at pp. 620-621, 626-627.) The appellate court explained that while the evidence sufficiently established that one of the two defendants was the shooter, there was nothing beyond "slight circumstantial evidence" to establish, beyond a reasonable doubt, which of the two defendants used a weapon. (Id. at pp. 626-627.) The court concluded that "[s]ince the evidence of what happened in the kitchen proved at most a 50 percent probability that [one of the defendants] was the user [of the murder weapon], the state's burden was not met: 'We . . . have a case belonging to that class of cases where proven facts given equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other . . . .' " (Id. at p. 626.)
Murphy contends that the evidence at trial established, at most, that he was carrying a firearm before entering Brown's motel room, but this fact alone is insufficient to establish he used the firearm. This contention, however, is premised on a disregard of the other evidence that, although circumstantial, is sufficient to support the inference that Murphy was the shooter.
As discussed, above, an expert testified that the video from the security camera established that Murphy was carrying an object consistent with a handgun before he entered Brown's motel room. The other possible suspect in the room, Dumont, was seen wearing a tight-fitting dress that was very unlikely to be concealing a firearm. Murphy was seen wearing gloves, which he later claimed to wear when he intended to intimidate someone. Immediately before entering the room, Murphy is seen reaching across his body toward the bulge on his hip that the expert testified was consistent with the shape and size of a handgun. The expert opined that Murphy's motion was consistent with a "cross-draw," in which a person reaches his or her dominant hand across the body to pull out a gun.
Additionally, Brown's friend received a call around the time when Murphy entered Brown's room. The friend heard a woman talking, a man yell, "shut up," and then a gunshot followed by silence. The confidential informant testified that Smith said he sent his "boy" to rob the "trick," the man who hired the prostitute. Murphy was the only possible "boy" in the room at the time of the murder.
Viewing all of the evidence in the light most favorable to the prosecution, as we must, this evidence is sufficient to support the jury's finding. The jury could reasonably infer that Murphy carried a gun to Brown's motel room, pulled the gun out as he entered to intimidate Brown, and ultimately shot and killed him. Although Murphy contends it is possible that Dumont had earlier placed her own gun in the room, or took Murphy's gun from him, these contentions are mere speculation. Under the applicable standard of review, this is not enough to undermine the jury's verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Accordingly, we find no error warranting reversal regarding the jury's finding that Murphy personally discharged a firearm.
V. The Trial Court Did Not Err in Imposing Fines and Fees as Part of Dumont's Sentence
The court's sentence for Dumont included, inter alia, a $10,000 restitution fine pursuant to Penal Code section 1202.4, a $154 criminal justice administration fee pursuant to Government Code section 29550 et seq., a $40 court operations assessment fee pursuant to Penal Code section 1465.8, and a $30 criminal conviction assessment fee pursuant to Government Code section 70373. At the sentencing hearing, the court found that Dumont had the ability to pay the fees—without making any express finding regarding the restitution fine—and Dumont did not object to the imposition of the fees or otherwise present any evidence or argument regarding her ability to pay the fine and fees.
On appeal, Dumont relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to argue that the court erred when it imposed the fines and fees without making a finding regarding her ability to pay. However, as the Attorney General notes on appeal, the court did make a finding that Dumont has an ability to pay the fees. In reply, Dumont shifts her argument to correctly assert that even if the court made a finding that Dumont was able to pay some of the fees, "[t]he trial court in this case did not make any finding regarding appellant's ability to pay before imposing the maximum $10,000 restitution fund fine." Although her reply brief focuses on only the restitution fine, she does not expressly address whether she is abandoning her challenge to the other fines and fees imposed and limiting her argument to the restitution fine.
Dumont does not challenge the imposition of the $154 criminal justice administration fee.
Regardless, even assuming Dumont continues to challenge the trial court's imposition of the other fines and fees under Dueñas, her silence at the sentencing hearing leads us to conclude Dumont forfeited her claim.
Notably, the statutes authorizing $10,154 of the total $10,224 in assessments, fees, and fines imposed by the trial court expressly allowed the court to consider Dumont's ability to pay. First, by imposing a restitution fine of $10,000 under Penal Code section 1202.4, the trial court exceeded the $300 minimum fine, thereby authorizing the court to "consider[]" Dumont's "[i]nability to pay." (Pen. Code, § 1202.4, subd. (c).) Similarly, the statutes authorizing the trial court to impose the $154 criminal justice administrative fee expressly authorized the court to consider her ability to pay the fee. (Gov. Code, § 29550.2 ["If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person," italics added]; id., § 29550, subd. (d)(2) ["The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee," italics added.].)
Dumont's silence during sentencing as the court imposed over $10,000 in assessments, fees, and fines she could have challenged on the basis of her alleged inability to pay "is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, citing People v. Aguilar (2015) 60 Cal.4th 862, 864, 866 [applying the forfeiture rule to unpreserved ability-to-pay challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to probation-related fees]; People v. Nelson (2011) 51 Cal.4th 198, 227 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to a restitution fine]; see also People v. McCullough (2013) 56 Cal.4th 589, 597 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to a criminal justice administration fee].) Thus, she cannot rely on Dueñas as an "unforeseen change in the law" that gave rise to a new argument to be raised for the first time on appeal.
VI. The Trial Court Did Not Err in Denying Dumont's Motion for New Trial
Dumont contends the trial court erred in denying her motion for new trial. We disagree.
A. Background
After almost four days of deliberations and multiple indications the jury could not reach a verdict as to Dumont and Smith, the jury submitted a note to the court: "Update: we're making progress. Productive conversation and thoughts are being exchanged. In the folder 'Exhibit Two Barber' there is a video '6 Camera 23.mp4.' In that video, at the 15:20 mark, we noticed that Dumont appeared to pick up an object off an A/C unit shortly before entering a room. The [jury] room cannot recall any testimony regarding this event. Was there any? Was there a stipulation that all parties agreed to Mr. Fredericks time?" After consulting with counsel for all parties, the court responded to the jury by answering both questions with "no." The jury resumed deliberations and, twenty-three minutes later, returned with guilty verdicts for Dumont and Smith.
Later, Dumont's counsel investigated the portion of the video mentioned in the jury note. Counsel explained that he watched the clip, which showed Dumont picking an object up off the top of an air-conditioning unit. Counsel noted that this portion of the video did not lead to any additional investigation before trial. However, after trial, one juror told Dumont's counsel that "he believed the jury had found something in that video clip that none of the lawyers, witnesses, or expert had seen." The juror stated that another juror "pointed out the 'key card' on the A/C unit and that all the other jurors noticed it after one juror had brought it to their attention." The juror told counsel that this "discovery" was of "substantial significance" to the jury and "played a large role in the [jury's] sudden swing from leaning to guilt and convicting [Dumont]." A defense investigator later interviewed three other jurors, all of whom told the investigator they believed Dumont picked up a key card and this fact affected their ultimate decision.
In light of the jurors' statements, counsel then retained an expert to enhance the video, leading the expert to opine that Dumont picked up a pack of cigarettes she had dropped earlier, not a key card. Dumont also reviewed the footage and declared that she recognized the object as cigarettes that she was smoking throughout the night and morning.
Dumont's counsel moved for a new trial on this issue. He argued, inter alia, that he was ineffective for failing to adequately and effectively prepare for trial by investigating the portion of the surveillance video mentioned by the jury in its final note. Counsel argued that if he was adequately prepared, he could have prevented the jury from reaching a verdict based on "misinformation (i.e., that Defendant Dumont had picked up a key card, rather than cigarettes)."
In opposition to the motion, the prosecution objected to the jurors' statements, as related by the defense investigator, on the grounds that they were hearsay and contained material inadmissible pursuant to Evidence Code section 1150 because they concerned the mental processes of the jurors in their deliberations. The prosecution also argued that Dumont's counsel was not ineffective because the video segment in question, which recorded events after the murder, was not particularly relevant and even assuming the jury believed Dumont picked up a key card, the relevance of that fact "is not particular[ly] apparent."
The trial court denied the motion, finding both that counsel was not ineffective and that the evidence in support of the motion was inadmissible as "double hearsay" and concerned the thought process of the jurors such that it was inadmissible under Evidence Code section 1150.
B. Relevant Legal Principles
"The trial court's determination on a motion for new trial ' " 'rests so completely within [its] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' " ' " (People v. Duran (1996) 50 Cal.App.4th 103, 113.) Similarly, a trial court's ruling on the admissibility of evidence under Evidence Code section 1150 in connection with a motion for new trial will not be disturbed absent a clear abuse of discretion. (People v. Perez (1992) 4 Cal.App.4th 893, 906.) Although not enumerated in Penal Code section 1181, a trial court may generally exercise its discretion to consider a motion for new trial premised on a claim of ineffective assistance of counsel. (See, e.g., People v. Cornwell (2005) 37 Cal.4th 50, 101; People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
Here, the central focus of the trial court's ruling denying Dumont's motion for new trial was its finding that the evidence in support of the motion was largely inadmissible under Evidence Code section 1150. "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Evid. Code, § 1150, subd. (a).) Evidence Code section 1150 " 'distinguishes "between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . ." ' [Citation.] ' "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent." ' " (People v. Danks (2004) 32 Cal.4th 269, 302.) To the extent any declarations "relate solely to the mental processes and subjective reasoning" of the jurors, those declarations cannot be considered. (Ibid.) Statements made by a juror concerning the reasons for his or her vote "are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150." (People v. Hedgecock (1990) 51 Cal.3d 395, 419.)
C. Analysis
Dumont's motion for new trial claimed that her counsel was ineffective for failing to adequately investigate the portion of the video evidence mentioned by the jury in its note sent to the court immediately before it reached its guilty verdict. Dumont's counsel asserted that if he had conducted that investigation, he would have been able to address the jury's concerns and avoided the guilty verdict. This theory is entirely premised on the assertion that the jury's belief that the video depicted Dumont picking up a key card played a significant role in its deliberations.
The evidence to support this assertion is not admissible under Evidence Code section 1150. The alleged error by the jury, as framed by Dumont on appeal, was that it "made its own determination about evidence that was unwarranted and incorrect. It then relied on that interpretation to find [Dumont] was more involved in the 'plot' than had been shown by her defense." Dumont later frames this determination as "improper conduct," analogizing the jury's review of the video evidence as a juror experiment. The rule against experimentation arises from the fundamental rule that the jury's verdict should be based on the evidence adduced at trial, not evidence discovered by the jury unbeknownst to the parties. (See, e.g., People v. Baldine (2001) 94 Cal.App.4th 773, 778-779.) A jury does not conduct an improper experiment merely by examining the evidence and exhibits admitted at trial and reaching their own conclusions. (Ibid.)
Here, Dumont asked the trial court, and now this court, to consider some jurors' statements as to why they found Dumont guilty. She relies on speculative statements of a small number of jurors opining that the belief that Dumont picked up a key card was important to all the jurors and a central factor in their finding of guilt. These statements are inadmissible and the trial court did not abuse its discretion in declining to consider them when ruling upon Dumont's motion for new trial. Thus, even assuming Dumont's counsel was somehow ineffective for failing to adequately investigate the video before trial, she cannot show that this alleged deficient performance was prejudicial. Without considering the jurors' statements, there is nothing in the record to adequately demonstrate that the nature of the object picked up by Dumont after the murder was in any way relevant or dispositive to the jury's deliberations. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 718 [to establish ineffective assistance of counsel, defendant must show that the jury would have returned a more favorable verdict but for the alleged deficient performance].) Because Dumont fails to establish a claim for ineffective assistance of counsel, the trial court did not abuse its discretion in denying her motion for new trial. VII. The Trial Court Erred by Imposing the Section 667 , Subdivision (a)(1) Five-Year Sentence Enhancement as Part of Murphy's Sentence
The trial court also found that counsel and the defense investigator's statements regarding what they were told by the jurors constituted inadmissible hearsay. Dumont does not address this alternative reason for finding the jurors' statements to be inadmissible.
Finally, Murphy challenges the trial court's imposition of the five-year sentence enhancement pursuant to section 667, subdivision (a)(1) based on his prior serious felony conviction. Although Murphy does not challenge the truth of his prior conviction, he contends that specific sentence enhancement was not alleged in the information and, therefore, could not be imposed. We agree.
A. Background
The information alleged that Murphy was convicted in 1997 of one count of robbery (§ 211) and served a separate prison term for that offense. The information alleged two sentencing enhancements. First, it alleged that the prior robbery offense and resulting prison term qualified as a violent felony prison prior, triggering a three-year sentence enhancement pursuant to section 667.5, subdivision (a). Second, it alleged the same robbery conviction qualified as a "strike" prior pursuant to sections 667, subdivisions (b)-(i), 668, and 1170.12.
Following the jury's verdict, Murphy reiterated his pre-trial waiver of his right to a jury trial on the issue of his prior conviction. At a bench trial, the court found that Murphy had suffered the 1997 robbery conviction and that the prior conviction qualified as both a violent felony prison prior within the meaning of section 667.5, subdivision (a) and a strike prior within the meaning of sections 667, subdivisions (b)-(i), 668, and 1170.12.
At the sentencing hearing, the court granted Murphy's motion to strike the "strike" prior but imposed a sentence enhancement of five years "based upon the nickel prior," arising under section 667, subdivision (a), a statute not referenced in the information. Murphy did not object. The minute order from the sentencing hearing reflects that the court imposed a five-year sentence enhancement, but references "PC 667.5(a)," the statute that applies to the three-year enhancement.
B. Relevant Legal Principles
Both Murphy and the People focus their discussion on People v. Nguyen (2017) 18 Cal.App.5th 260 (Nguyen), a case that addressed the precise issue that arises here. The defendant in Nguyen had a prior first degree burglary conviction which qualified as a "strike" prior (§§ 667, subds. (b)-(i), 1170.12), a one-year prior prison term enhancement (§ 667.5, subd. (b)), and a five-year serious felony prior conviction enhancement (§ 667, subd. (a)). (Nguyen, at p. 262.) The information alleged the prior conviction and cited the statutes defining a strike prior and the prior prison term enhancement, but did not mention the statute defining the five-year serious felony prior conviction enhancement. (Ibid.) However, at sentencing, the court used the prior conviction as a strike and as a prior serious felony conviction enhancement. (Ibid.) Defense counsel did not object. (Ibid.)
On appeal, the court held that the trial court erred by imposing the prior serious felony conviction. (Nguyen, supra, 18 Cal.App.5th at p. 263.) Relying on section 1170.1, subdivision (e), the Nguyen court held that an enhancement must be alleged in an information by alleging both the facts of the underlying conviction and the legal basis for imposing the enhancement. (Id. at p. 267.) While the Nguyen court held that the specific statute underlying an enhancement need not be expressly cited, the information had to disclose the basis for alleging the prior conviction. (Ibid.) Moreover, the court held that the imposition of an unpled enhancement results in an unauthorized sentence that may be raised for the first time on appeal even if defendant did not object in the trial court. (Id. at p. 271-272.)
C. Analysis
We agree with Nguyen. Where, as here, the People allege a prior conviction as a strike prior and a violent felony prison prior, but do not cite the prior serious felony conviction statute, we must conclude that they have made a " 'discretionary charging decision' " and the trial court cannot impose the five-year enhancement. (Nguyen, supra, 18 Cal.App.5th at p. 267.) Murphy's failure to object below did not result in a forfeiture of this error. (Id. at pp. 271-272.)
On appeal, the People contend we should find the issue forfeited because if Murphy had objected, they could have moved to amend the information. (See, e.g., People v. Tindall (2000) 24 Cal.4th 767, 776-779 [prosecution can amend information at sentencing hearing to add previously unalleged prior conviction after discharging jury if defendant waives or forfeits the right to have the same jury try both guilt and priors].) It is undisputed, however, that they did not move to amend the information. Thus, the court erred in imposing the five-year enhancement that was not alleged in the information. If the People are implying that their past ability to amend the information suggests we should uphold the trial court's imposition of the enhancement, they ignore that the matter would have to be remanded for resentencing based on the imposition of the five-year enhancement for an entirely different reason. Senate Bill No. 1393, effective January 1, 2019, removed the prohibition of the trial court's ability to strike the five-year enhancement under section 667, subdivision (a)(1). (See, e.g., People v. Garcia (2018) 28 Cal.App.5th 961, 971.) This legislation applies retroactively to Murphy. (Id. at pp. 972-973.) Thus, the trial court has new discretion to strike the enhancement, precluding this court from affirming the imposition of the enhancement regardless of whether it was properly imposed at the original sentencing hearing. Nor could we merely affirm imposition of a three-year enhancement as pled pursuant to section 667.5, subdivision (a) without giving Murphy the opportunity to request that the enhancement be stricken in the interests of justice pursuant to section 1385.
Thus, as the People concede, remand is necessary for a new sentencing hearing. On remand, the trial court may first consider any motion by the People to amend the information to allege the five-year enhancement under section 667, subdivision (a)(1). If the information is so amended, the court must then exercise its newly-enacted discretion to impose or strike the five-year enhancement. If the trial court imposes the five-year enhancement, it must strike the three-year enhancement pursuant to section 667.5, subdivision (a). (People v. Jones (1993) 5 Cal.4th 1142, 1149-1153; see also Nguyen, supra, 18 Cal.App.5th at pp. 270-271.) If the court does not impose the five-year enhancement, it must impose the three-year enhancement unless Murphy files the requisite motion to strike the enhancement in the furtherance of justice and the court grants that motion. (See, e.g., People v. Bradley (1998) 64 Cal.App.4th 386, 391; People v. Lua (2017) 10 Cal.App.5th 1004, 1020-1021.)
We express no opinion whether it would be proper to grant such a motion, given that Murphy waived his right to a jury trial on the prior assuming that only a three-year enhancement pursuant to section 667.5, subdivision (a) was alleged.
DISPOSITION
The judgment as to Murphy is reversed in part as to the sentence imposed on Murphy. On remand, the trial court should resentence Murphy consistent with this opinion. In all other respects, the judgments are affirmed.
HALLER, Acting P. J. WE CONCUR: AARON, J. DATO, J.