Opinion
A160417 A162829
10-28-2022
THE PEOPLE, Plaintiff and Respondent, v. RANDELL JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(City &County of San Francisco Super. Ct. No. SCN228459, CT17017948)
WISEMAN, J. [*]
In these consolidated appeals, Randell Jackson challenges a judgment of conviction and sentence imposed after a jury found him guilty of multiple crimes including robbery (Pen. Code, § 211) and was thereafter ordered to pay restitution. In appeal number A160417, Jackson contends (1) the court erred by instructing the jury with CALCRIM No. 376 because there was no evidence he possessed stolen property; (2) the court erred by denying his motions for a new trial based on newly-discovered evidence (§ 1181, subd. (8)); (3) no substantial evidence supported his conviction for attempted robbery of a second victim; (4) the documents reviewed by the trial court under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) should be reviewed by this court; (5) the matter should be remanded to the trial court for resentencing under section 654; and (6) fees imposed by the trial court for the preparation of his probation report and booking should be stricken. In appeal number A162829, he asks us to conduct an independent review of the restitution order pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Unless indicated otherwise, all statutory references are to the Penal Code.
We will remand for the trial court to consider resentencing under section 654 and to strike the fees imposed for preparation of his probation report and booking. In all other respects, the judgment and restitution order are affirmed.
I. FACTS AND PROCEDURAL HISTORY
A. Appeal No. 160417
A December 2017 information alleged that Jackson committed second degree robbery (§ 211; count one), assault with a firearm (§ 245, subd. (b); count two), battery with serious bodily injury (§ 243, subd. (d); count three), attempted second degree robbery (§§ 211/664; count four), and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count five). It further alleged that Jackson personally used a firearm in the commission of counts one through three (§§ 12022.53, subd. (b), 12022.5, subd. (a)), and, as to counts one and two, personally inflicted great bodily injury (§ 12022.7, subd. (a)). It also alleged that he committed the offenses while on parole (§§ 1203.085, subds. (1) &(b), 3000, 29800, subd. (a)(1)) and had served a prior prison term (§ 667.5, subd. (b)). After the count two assault count was set aside, the matter proceeded to a jury trial.
As presented to the jury, charged counts three, four and five became counts two, three, and four, respectively, such that the aggravated battery count was decided by the jury as count two.
1. Prosecution's Case
Around 10:00 p.m. on November 20, 2017, victims Jill Harris and Becky Trinh left a restaurant in San Francisco and walked next to each other on Grove Street towards Webster Street. Trinh walked on the curb side of the sidewalk, wearing a handbag on her right shoulder; Harris walked on the building side, wearing her handbag on her left shoulder.
Harris noticed a man wearing jeans and a hooded jacket leaning against a building ahead of them; it appeared to Harris that he was waiting for someone. From about five to seven feet away, Harris and the man made eye contact. As Harris and Trinh began to walk past him and Harris looked away, the man "leap[ed]" or jumped at them. Harris felt something hit her very hard in the back of her head just below her skull with what felt like a heavy metal object, causing her to experience "tunnel vision." Trinh screamed. Harris was hit a second time above her left eye, again with a metal object. The two women fell into the street, with Harris on top of Trinh and Trinh's handbag ending up beneath them. The man yelled," 'Give me your bags' or 'Give me your bag.'" He yanked Harris's handbag off her shoulder and backed up; Trinh saw him put a gun into his jacket pocket. The man ran about a half a block up Grove Street before getting into a car, which drove off onto Octavia Street.
As a result of the attack, Harris suffered an injury to her right shoulder and arm, for which she was still receiving treatment at the time of trial. She also "had to have [her] whole forehead stitched back together," such that her "left eyebrow [was] no longer in the same position it was before the incident."
At the hospital on the night of the robbery, Harris described the robber to the police as a Black male in his 20s or 30s, wearing a hooded jacket. The next day, she described the robber to San Francisco Police Sergeant Carla Hurley the same way, adding by her recollection that he was at least 5'10" tall with a "[n]ot a small frame," and the hooded jacket was possibly green.
Also, while Harris was at the hospital, she received a notification on her cell phone that one of her credit cards, which had been in the handbag taken in the robbery, was used to make a purchase at a Target store in the Serramonte Center in Daly City. Harris's husband told police that Harris's credit card had been used at a Shell gas station as well.
Surveillance videos of the Target store and the gas station showed two Black women, one with blonde hair or a blonde wig, driving a dark sedan that resembled the one in which the robber had fled. At 10:44 p.m. on the night of the robbery, the two women used Harris's credit card at the Target store to purchase a PlayStation 4. The two women, identified as Marcia (Lali) Wellington and Tamara Hoffner, were shown with the PlayStation 4 in the video.
On November 21, 2017 (the day after the robbery), San Leandro Police Detective Jason Kritikos was conducting surveillance in San Leandro, when he saw a dark blue Jaguar sedan drive past him at a high rate of speed. Kritikos obtained assistance from other officers to conduct a traffic stop, but the Jaguar "accelerated at a high rate of speed, fleeing away from the police vehicles[.]" Kritikos had observed that a Black woman with blonde hair was in the Jaguar's passenger seat. Later at an intersection, the driver of the Jaguar got out of the vehicle and fled on foot. Kritikos described the driver as Black, muscular, and around 5 feet 10 inches tall. He later identified the driver to be Jackson.
Detective Kritikos initially identified the driver as Delondo Cooper in a photo lineup, but police determined Cooper was not the driver. Later shown a photograph of Jackson, Kritikos identified Jackson as the driver; Kritikos believed Cooper and Jackson resembled each other.
In a search of the Jaguar, police found a loaded firearm on the driver's seat; inside the vehicle were spray paint cans, a receipt from a hardware store showing a purchase of spray paint around 2:40 p.m. that day, a cell phone next to the driver's seat, a box of ammunition, a knit hat, a black and green jacket, a blonde wig, and a purse containing two cell phones. In the trunk of the Jaguar, police located a PlayStation 4 under the wheel well. It was stipulated that Jackson made the purchase from the hardware store and was depicted in photographs extracted from the cell phone found next to the driver's seat.
Forensic evidence linked the Jaguar to Jackson and Wellington. Jackson's fingerprints or palm prints were found on the exterior of the driver's door, the exterior of the rear driver's side door, and the "exterior front door frame passenger side." DNA samples taken from the firearm found in the Jaguar were a match to Jackson. Wellington's fingerprints appeared on the exterior front passenger door frame, the exterior driver's side doors, and the phone that contained Jackson's photo.
At some point, Harris informed Sergeant Hurley that she would be able to identify the suspect based on her clear memory of his face from when they made eye contact. On December 5, 2017, San Francisco Police Sergeant Matthew Sullivan, who was unaware Jackson was a suspect, showed Harris a six-photo photographic lineup that included a photograph of Jackson. The photographs were shown to Harris one at a time, and Harris viewed them three times; each time they were shuffled so that Harris would not view them in the same order. Harris took seriously the officer's admonition that she did not have to select anyone and the lineup might not include the robber.
When Harris looked at Jackson's photograph, she had a physical reaction, was certain she had seen him, and identified him as the robber. As she testified at trial: "When I saw his photograph I was shaking. And it was a face I had seen before. And I didn't feel that same feeling with anybody else." Harris identified Jackson as her attacker at both the preliminary hearing and at the trial.
Sergeant Hurley testified that the jacket found in the Jaguar appeared to be the jacket worn by the assailant at the time of the robbery, as seen in a video shown to the jury, which had been obtained by police from a resident who had cameras fronting Grove Street east of its intersection with Octavia Street (the "Grove Street video"). Sergeant Hurley opined that the vehicle appearing in the Grove Street video was the same as the vehicle in the surveillance footage she viewed at the Target store.
2. Defense Case
Jeremy Denahy testified that when he was in his apartment on Grove Street around 9:40 p.m. on November 20, 2017, he heard a woman scream; he rushed outside and saw someone running around the corner at Octavia Street. The person he saw running could have been from five feet, eight inches tall to about six feet tall. Jackson was six feet, one inch tall and weighed 220 pounds on the day of his arrest.
Scott Fraser, an expert "in eyewitness memory and identification and perception and memory processes" testified that people can process only a limited amount of information and their ability to recognize individuals dramatically decreases when their attention is divided. Eyewitness memory can be affected by, among other things, onset suddenness (seeing someone who appears unexpectedly), the person's face being partially covered, the person being of a different race than the eyewitness, and the passage of time.
Collin Olsen, an investigator with the San Francisco Public Defender's Office, testified that in August 2018, he met with Hoffner, who was one of the women depicted in the surveillance videos obtained from the Target store and the Shell gas station. Hoffner told Olsen that she had used a credit card at the Target store, and that she went to the store with Lali (Wellington).
3. Jury Verdict and Sentence
In February 2019, the jury found Jackson guilty as to all counts and found true all allegations submitted for the jury's decision. The trial court found the remaining allegations true.
As described post, Jackson filed a motion for a new trial on November 4, 2019. The trial court denied the motion on November 20, 2019. On January 14, 2020, Jackson filed a supplemental motion for a new trial, which the court denied on June 3, 2020.
On June 3, 2020, the court denied probation and sentenced Jackson to state prison for a total term of 18 years. Jackson filed a notice of appeal.
B. Appeal No. A162829
On April 22, 2021, the trial court held a hearing in San Francisco Superior Court case number SCN228459 and denied Jackson's request to stay an order that required him to reimburse the state victim compensation board for payments it had made to Jackson's victim from the restitution fund. Jackson filed a notice of appeal. We granted Jackson's motion to consolidate appeal numbers A160417 and A162829.
II. DISCUSSION
A. Instruction with CALCRIM No. 376
In connection with the robbery charge, the court instructed the jury with CALCRIM No. 376 as follows: "If you conclude that the Defendant knew he possessed property and you conclude that the property had in fact been recently stolen you may not convict the Defendant of robbery in Count One based on those facts alone. [¶] However, if you also find that supporting evidence tends to prove his guilt then you may conclude that the evidence is sufficient to prove he committed robbery in Count One. The supporting evidence need only be slight and need not be enough by itself to prove guilt. [¶] You may consider how where and when the Defendant possessed the property along with any relevant circumstance tending to prove his guilt of robbery in Count One."
Jackson contends the instruction violated his constitutional rights because there was no evidence he possessed any of Harris's property after the robbery. The contention has no merit.
1. Forfeiture
As Jackson acknowledges, he objected to the instruction only on the ground that it lessened the prosecution's burden of proof by telling the jury that if it found Jackson had possessed recently stolen property, he could be found guilty of robbery if the jury found only "slight" corroborating evidence. Jackson did not object to the instruction on the ground he raises on appeal- that there was no substantial evidence to warrant giving it. Respondent urges his claim is therefore forfeited. (See e.g., People v. Ward (2005) 36 Cal.4th 186, 211.) Jackson counters that our review is appropriate because the purported instructional error affected his substantial rights. We will proceed to the merits. (See People v. Franco (2009) 180 Cal.App.4th 713, 719-720 [ascertaining whether alleged instructional error affected the defendant's substantial rights requires consideration of the merits].)
2. Substantial Evidence Supporting the Instruction
Jackson contends the court should not have instructed the jury with CALCRIM No. 376 because there was no evidence he possessed any of Harris's stolen property. He points us to a small portion of the prosecutor's closing argument (given after the trial court's instruction), in which the prosecutor called the PlayStation 4 "stolen" property and referenced the CALCRIM No. 376 instruction. Jackson then argues that the PlayStation 4 could not constitute "the property [that] had in fact been recently stolen" as required by CALCRIM No. 376, because the PlayStation 4 was not among the items stolen from Harris in the robbery, it was not itself stolen, and it was not purchased by Jackson. Moreover, Jackson urges, there is a gap between the possession of Harris's credit card and Jackson's possession of the PlayStation 4.
Of course, there was such evidence: Harris testified that it was Jackson whom she saw immediately before she was struck on the back of her head by a person who took her handbag and ran off. From that evidence, a jury could reasonably conclude that Jackson "possessed property"-her handbag-and "the property had in fact been recently stolen," the phrase used in CALCRIM No. 376. Assuming, however, that the stolen property necessary to satisfy CALCRIM No. 376 must be found in the defendant's possession after the crime, we proceed with Jackson's contention.
By its terms, the court's instruction with CALCRIM No. 376 would pertain to the jury's deliberation only if the jury concluded that Jackson "knew he possessed property" and that "the property had in fact been recently stolen." (CALCRIM No. 376.) There is no debate that Jackson actually or constructively "knew he possessed" the PlayStation4. (See, e.g., People v. Land (1994) 30 Cal.App.4th 220, 223-224 [possession of stolen property may be actual or constructive, in that there is a measure of control or dominion over the stolen property]; see United States v. Lochan (1st Cir. 1982) 674 F.2d 960, 966 ["Drivers generally have dominion and control over the vehicles that they drive"].) The question posed by Jackson's argument, therefore, is whether there was evidence from which a jury could reasonably conclude that the PlayStation 4 "had in fact been recently stolen" within the meaning of CALCRIM No. 376, when the PlayStation 4 was purchased using a stolen credit card.
Jackson provides neither legal authority holding that CALCRIM No. 376 cannot apply in this situation nor any sound argument that it should not apply under the facts of this case. After all, the PlayStation 4 was obtained through a form of theft-namely, the nonconsensual use of Harris's funds (her credit card). The PlayStation 4 was arguably stolen property for purposes of the instruction.
Or, as the prosecutor argued, the possession of the PlayStation 4 equated to the possession of the stolen credit card because the PlayStation 4 was purchased with the stolen credit card. (Cf. People v. Mosqueira (1970) 12 Cal.App.3d 1173, 1174-1176 [defendant's occupancy of victim's seats at a football game compels inference of possession of the missing tickets and theft of the wallet containing them].)
Moreover, Jackson fails to persuade us that the instruction was impermissible merely because it was Wellington who used the pilfered credit card to obtain the PlayStation 4. From the evidence at trial, the jury could reasonably (and readily) conclude that Jackson had passed the credit card to Wellington to obtain the PlayStation 4: Harris identified Jackson as the person who took the handbag containing her credit card, the credit card was used by a Black woman in a blonde wig to buy the PlayStation 4 the night of the robbery, a Black woman with blonde hair was seen the next day in a Jaguar that resembled the vehicle the robber had used to flee from the robbery, and that Jaguar was being driven by Jackson and was found to contain both a blonde wig and the PlayStation 4.
Nevertheless, we need not (and do not) reach a decision as to whether the instruction was warranted on the theory that the PlayStation 4 had been "recently stolen" for purposes of CALCRIM No. 376. Even if the instruction had not been justified on that ground, Jackson has failed to demonstrate prejudice.
In the first place, the prosecutor spent little time on CALCRIM No. 376. He mentioned the PlayStation 4 as "stolen property" on page 923 of the reporter's transcript and argued CALCRIM No. 376 and the PlayStation 4 on pages 926-927, but the vast majority of the prosecutor's argument- consisting of over 60 pages of closing and 15 more on rebuttal-insisted Jackson was the robber based on surveillance footage and other evidence.
Furthermore, the instruction did not tell the jury it had to find Jackson guilty if it found he was in possession of property that was recently stolen. Rather, CALCRIM No. 376 is a permissive instruction that warned the jury not to infer guilt if it found Jackson's possession of recently stolen goods, without also finding "supporting evidence" of his guilt on the robbery charge beyond a reasonable doubt. (See e.g., People v. Gamache (2010) 48 Cal.4th 347, 375 [CALJIC No. 2.15, the predecessor of CALCRIM No. 376, "is an instruction generally favorable to defendants; its purpose is to emphasize that possession of stolen property, alone, is insufficient to sustain a conviction for a theft-related crime"].)
Moreover, the evidence supporting Jackson's robbery conviction was so overwhelming that he would have been convicted even without reference to CALCRIM No. 376. There is no dispute that Harris was robbed, as the assailant repeatedly hit her in the head, demanded a bag or bags, and then took her handbag and ran. It was also abundantly established that the assailant was Jackson. Harris identified Jackson as the robber in a six-photo photographic lineup-which is not challenged in this appeal-manifesting a physical reaction (shaking) at the very sight of Jackson's face. She identified Jackson as the robber at the preliminary hearing. She identified Jackson as the robber at trial, in testimony that the trial court would later characterize as "quite convincing." Further, she testified that the robber struck her with a metal object, which Trinh clarified to be a firearm; the day after the robbery, police found a firearm bearing Jackson's DNA in a Jaguar covered with his fingerprints. Harris believed the robber wore a green jacket, and a green and black jacket was also found in the Jaguar. The robber had taken Harris's credit card, which was used shortly thereafter by Wellington (while wearing a blonde wig) to purchase a PlayStation 4; both a blonde wig and a PlayStation 4 were found in the Jaguar, driven by Jackson. Yet further, video evidence showed that the Jaguar matched the vehicle seen on Grove Street around the time of the robbery and the vehicle outside the Target store where Harris's credit card was used to purchase the PlayStation 4. And as the prosecutor emphasized in closing argument, there was video evidence of Jackson in the Jaguar the day before the robbery, the day of the robbery, and the day after the robbery. Contrary to Jackson's characterization, this was not a "reasonably close case."
Given the evidence and taking into consideration the entirety of the record as Jackson implores us to do, it is not reasonably probable that Jackson would have obtained a more favorable verdict as to the robbery charge (or any other count) if the jury had not been instructed with CALCRIM No. 376. (People v. Watson (1956) 46 Cal.2d 818, 836; see Gamache, supra, 48 Cal.4th at p. 376 [Watson test applies to harmless error analysis in challenge to CALJIC No. 2.15, predecessor to CALCRIM No. 376]; People v. Guiton (1993) 4 Cal.4th 1116, 1129 [if the error is only that it should not be given under the facts of the case, and not that the instruction states the legal principles incorrectly, it is not of federal constitutional dimension].)
Jackson urges us in a lengthy discourse to disapprove People v. Laskiewicz (1986) 176 Cal.App.3d 1254, which-as he makes a point to say- was decided in this appellate district and division decades ago. Laskiewicz stated that "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (Id. at p. 1258.) Jackson does not, however, assert that the CALCRIM No. 376 instruction at issue here requires interpretation or misstated the law. He does not challenge the cases that have upheld CALCRIM No. 376 or its predecessor statute. (See e.g., People v. O'Dell (2007) 153 Cal.App.4th 1569, 1573-1574; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1036; People v. Seumanu (2015) 61 Cal.4th 1293, 1351; People v. Lettner and Tobin (2010) 50 Cal.4th 99, 188-189; Gamache, supra, 48 Cal.4th at p. 375.) And to the extent he thinks Laskiewicz applies when assessing the impact of an erroneous instruction in the context of the instructions as a whole, we do not rely on Laskiewicz in reaching our decision. We therefore decline Jackson's invitation to overrule long-standing precedent. In the same vein, we have considered all of Jackson's arguments in his appellate briefs and, to the extent not addressed explicitly in this opinion, find them meritless without a need for discussion.
3. Federal Due Process
Jackson contends his due process rights were violated because, he claims, the instruction allowed the jury to make an "irrational inference" of his guilt. His assertion is unavailing. Contrary to his argument, instruction with CALCRIM No. 376 did not risk an unconstitutional path to conviction. There is no reasonable likelihood that the jury applied CALCRIM No. 376 in a way that violates the Constitution. The instruction, viewed in context (including the prosecutor's arguments and other factors Jackson raises), did not deprive Jackson of due process.
For the foregoing reasons, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
B. Denial of New Trial
Jackson next contends the trial court erred in denying his motions for a new trial. He fails to establish error.
1. Background
Jackson filed a motion for a new trial on November 14, 2019-over nine months after the jury found him guilty. As relevant here, he argued that due process and section 1181, section (8) entitled him to a new trial due to "newly" discovered evidence.
Jackson supported his motion with a declaration signed six months earlier by someone named Nicholas Perez. Perez averred that on November 20, 2017-the date of the robbery and some 18 months before his declaration-he recalled sitting in the back seat of a dark-blue Jaguar driven not by Jackson, but by a dark-skinned man named "Dre." A man named Daniel Lucero was in the front passenger seat and another dark-skinned man with dreadlocks sat with Perez in the back. According to Perez, after driving around and "smoking weed," Dre parked the car somewhere and got out. At some point, Lucero got out of the car, "turned the car on, then returned to the front passenger seat." A few minutes later, Dre returned and Perez could tell that "something went down" and "Dre then drove off in a hurry." Perez claimed that Jackson was not with them.
Jackson also submitted a declaration from a juror, who stated that if Perez had testified credibly at trial that Jackson was not in the Jaguar the night of the robbery, the juror would have changed his or her vote "to not guilty."
On November 20, 2019, the trial court denied Jackson's new trial motion. The court observed that "Perez's declaration does not give any times," defense counsel did not identify when Perez supposedly made the observations, and the evidence had shown that the Jaguar was "used by many different people during the day of and the day after the incident." Even if the court accepted the truth of Perez's statement, the information would be relevant but not clearly exculpatory because, the court concluded, it "could have been a completely different incident than the one that's involved in this case." The court further observed that "there's some question whether there was diligence to obtain this evidence" and in any event, the court did not believe there was a reasonable probability the evidence would have led to a different result at the trial.
On January 14, 2020, Jackson filed a supplemental motion for a new trial. He included a second declaration from Perez, in which Perez said he had viewed a video supplied by the Public Defender's Office-apparently the Grove Street video that depicted individuals on Grove Street around the time of the incident. Perez claimed that the video showed "Dre" exit the driver's side of the vehicle and walk out of view and a female subject exiting the rear passenger side of the vehicle and getting back in, and that when Dre returned to the Jaguar, he was holding either "a purse or a handbag." Jackson also submitted a video of Perez viewing the Grove Street video.
At the hearing on June 3, 2020, the prosecutor submitted a letter that Jackson had written and sent to the District Attorney's Office, in which Jackson claimed he was found guilty because he "did not tell on the person that [truly] committed the Crimes that [he] was charge[d] with." (Italics added.)
The court denied Jackson's supplemental new trial motion that same day. The court recognized that the threshold issue was "whether newly discovered evidence, in fact, was newly discovered and could not have recently been discovered prior to trial." The court found that a sentence in Jackson's letter to the District Attorney - that "[I] was found guilty mainly because I did not tell on the person that truly committed the crimes that I was charged with"-showed that Jackson knew the "person who allegedly committed the crime that is mentioned in Mr. Perez's declaration," so "this is not newly discovered evidence and does not justify a new trial." Furthermore, the court explained, there was no reasonable probability "even with Mr. Perez's testimony that there would be a different result of a new trial[,] primarily because the evidence identifying Mr. Jackson was quite convincing in that Jill Harris testified without any hesitation that the person that attacked her was Mr. Jackson. That she got a good look at him before the incident. She picked him out of a photo ID, and there were other circumstances, circumstantial evidence pointing to Mr. Jackson as the person who committed this crime."
2. Law
Section 1181, subdivision (8), authorizes the trial court to grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." The court considers the following factors: (1) the evidence (not just its materiality) is newly discovered; (2) the evidence is not cumulative; (3) the evidence would have rendered a different result probable on retrial; (4) the moving party could not with reasonable diligence have discovered and produced the evidence at trial; and (5) the new facts are shown by the best admissible evidence. (People v. O'Malley (2016) 62 Cal.4th 944, 1016-1017.) A new trial motion based on newly discovered evidence is disfavored, and denial of such a motion will be affirmed unless the appellant has clearly shown a manifest and unmistakable abuse of discretion. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151; People v. Delgado (1993) 5 Cal.4th 312, 328.)
3. Analysis
The trial court did not abuse its discretion in denying Jackson's new trial motions.
a. No Probable Different Result on Retrial
Perez's proposed testimony would not have rendered a different result probable on retrial. In the first place, his credibility was questionable. After stating one set of facts under penalty of perjury, he changed his story after viewing the Grove Street video given to him by the defense, asserting for the first time that the person sitting next to him in the back seat of the car was a woman rather than a man, and proclaiming for the first time that Dre had returned to the car with a purse or a handbag. Given these discrepancies, the passage of time, and his assertion that the group was "smoking weed" before the incident, his veracity and ability to recount the events accurately would have been seriously in doubt.
Furthermore, Perez's evidence did not persuasively refute that Jackson was the robber. Perez did not claim to have observed who hit and robbed Harris, and his initial declaration did not even specify the time of the event he was describing. By contrast, Harris repeatedly identified Jackson as the one who robbed her, in a manner the court found "quite convincing." The prosecution presented other evidence linking Jackson to the crime as well. (See People v. O'Malley, supra, 62 Cal.4th at pp. 1016-1017 [deferring to court's credibility determinations].)
Jackson points us to the juror who stated that he or she would have voted not guilty if Perez had testified credibly that Jackson was not in the Jaguar on the night of the robbery. He also argues this was a "reasonably close case" and Perez's testimony would have contradicted the prosecution's strongest evidence. We disagree. It was reasonable for the trial court to conclude that Perez's testimony would not have been credible, such that the juror would not have changed their vote and Perez would not have refuted the prosecution's proof.
b. Newly Discovered / Reasonable Diligence
The trial court further concluded that Jackson had failed to show the evidence was newly discovered and could not have been provided at trial with reasonable diligence. The record, including Jackson's statement that he was found guilty largely because he "did not tell on the person" who committed the crimes, supports the trial court's conclusion. As Jackson concedes, this language in his letter implied that he knew the robber's identity by the time of trial. Jackson fails to establish that, despite his knowledge of the culprit, he could not have presented Perez's information or other evidence of the perpetrator at trial with reasonable diligence.
The court mentioned both concepts-whether the evidence was "new" and whether it could have been provided at trial with reasonable diligence-in most of its discussion of the point. Reasonably read, the trial court's conclusion that "this is not newly discovered evidence and does not justify a new trial" refers to both concepts. Therefore, even if Perez's information (as opposed to Jackson's knowledge of the true perpetrator) was newly discovered, there was still no indication that Perez's evidence could not have been discovered and presented at trial with reasonable diligence.
Jackson argues there is no evidence that Perez would have been willing to come forward for the trial. For this proposition, he relies on People v. Hairgrove (1971) 18 Cal.App.3d 606. There, after the defendant was tried and convicted, a third party submitted a sworn declaration admitting he had committed the crime. The trial court denied a new trial motion solely on the ground that the attorney failed to subpoena the third party. The court of appeal reversed because there was no indication the third party "had been willing to admit to the crime" before the trial. (Id. at p. 610, italics added.) Here, by contrast, Perez did not state he committed the crime (thus opening himself up to prosecution), but that someone else did. Unlike in Hairgrove, where the trial court was confronted with a declarant confessing he was the one who actually perpetrated the offense, the court here only had a person claiming someone besides the defendant had left and returned to a vehicle spotted near the robbery. Jackson fails to establish an abuse of discretion.
C. Substantial Evidence of Attempted Robbery
Jackson contends there was insufficient evidence to support his conviction for the attempted robbery of Trinh. Again, we find his arguments unpersuasive.
"Robbery is defined as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' (§ 211.) An attempted robbery consists of two elements: (1) the specific intent to commit the robbery, and (2) a direct, unequivocal, overt act (beyond mere preparation) toward its commission." (People v. Gonzalez (2021) 12 Cal.5th 367, 382.)
Substantial evidence supported the jury's finding that, beyond a reasonable doubt, Jackson was guilty of the attempted robbery of Trinh. As Harris and Trinh walked down Grove Street, each carrying a handbag, Jackson took "a leap at us"-both women-before hitting Harris twice, prompting Trinh to scream and causing both women to fall to the ground. Harris ended up on top of Trinh, and Trinh's handbag ended up underneath Trinh and Harris. Jackson yelled either "Give me your bags" or "Give me your bag" before "yank[ing]" Harris's handbag off of her shoulder and running from the scene. The jury could reasonably infer that Jackson had the specific intent to take both women's handbags and his overt act of striking Harris was meant not only to incapacitate Harris, but to accomplish the robbery of both.
While Jackson did not ultimately take Trinh's bag, the jury could reasonably infer that he decided not to do so because her bag, lodged beneath the two women, was not easily accessible without him remaining at the scene where Trinh was screaming, risking his detection and apprehension. Neither a completed assault nor a completed theft is required for attempted robbery. (People v. Medina (2007) 41 Cal.4th 685, 694-695.)
Jackson points out that he did not directly threaten Trinh or repeatedly hit her in the head with a firearm as he did Harris. It is not our role, however, to reweigh the evidence. Substantial evidence supported the jury's verdict.
D. Pitchess
A criminal defendant has a limited right to discovery of police personnel records. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1047; Pen. Code, §§ 832.5, 832.7, 832.8.) "The procedure requires a showing of good cause for the discovery, an in camera review of the records if good cause is shown, and disclosure of information 'relevant to the subject matter involved in the pending litigation.'" (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) When good cause has been shown, the custodian of personnel records is obligated to bring "all potentially relevant" materials to the court and state what other documents in the personnel file were not brought and why. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229, fn.4 (Mooc).) The trial court reviews the potentially relevant materials in camera, determines what must be produced, and makes an adequate record of the materials it considered. (Ibid.) We review a Pitchess ruling for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Here, Jackson filed a Pitchess motion asking the trial court to review and disclose police records revealing certain matters as to Sergeant Hurley. Jackson and the San Francisco Police Department stipulated to an order directing the department to deliver relevant documentation (involving dishonesty or fabrication) to the court for in camera review, with discoverable materials to be provided to the defense.
On January 17, 2019, the trial court issued a protective order sealing the delivered materials, and not ordering their disclosure, finding they were "[n]ot relevant to [Sergeant Hurley's] honesty[.]"
On January 23, 2019, Jackson filed another Pitchess motion directed to purportedly relevant information. In a letter to defense counsel dated January 29, 2019, the police department's custodian of records advised that the court had already ruled there was to be no disclosure of materials.
In his appeal, Jackson asks us to review the sealed records to determine whether the trial court abused its discretion and, if so, whether the non-disclosure was prejudicial. In response, respondent stated it had no objection to our review.
On September 12, 2022, we ordered the trial court to provide to this court the materials it reviewed. Having now received and reviewed the materials, we conclude the trial court did not commit reversible error.
E. Section 654
The trial court imposed the upper term of five years as to the robbery conviction (count one) and the upper term of four years as to Jackson's aggravated battery conviction (count two). Pursuant to section 654, which precludes multiple punishments for a single act or indivisible course of conduct, the court then stayed the four-year sentence imposed as to count two on the ground that it involved the same conduct and victim as the count one robbery. Under the law applicable at the time of Jackson's sentencing, an act or omission that was punishable in different ways by different laws had to be punished under the law that provided for the longest possible term of imprisonment. (§ 654, subd. (a).)
Effective January 1, 2022, Assembly Bill 518 (AB 518) amended section 654 by removing the requirement that a defendant be punished under the provision providing for the longest term of imprisonment, granting the trial court discretion to impose punishment under any of the applicable provisions. (Stats. 2021, ch. 441, § 1.) The parties agree that, because Jackson's case is not yet final, the change in the law applies to Jackson retroactively under In re Estrada (1965) 63 Cal.2d 740.
Jackson argues that we should remand the matter to the trial court to consider whether to stay the five-year sentence on count one rather than the four-year sentence on count two. Respondent argues that remand would constitute an idle act because the record shows the court would have reached the same conclusion even if it had the discretion it has now under AB 518.
We will remand to the trial court for consideration under section 654 as amended by AB 518. By so doing, we do not suggest whether the sentence should or should not be changed by the trial court.
F. Probation Report and Booking Fees
At Jackson's sentencing in June 2020, the court imposed a $150 fee for the preparation of his probation report (§ 1203.1 (b)) and a $135 booking fee (Gov. Code, § 29550.2). Thereafter, our Legislature enacted Assembly Bill 1869 (AB 1869), which added section 1465.9 to the Penal Code. Section 1465.9, subdivision (a) states: "On and after July 1, 2021, the balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." Subdivision (b) of section 1465.9 reads: "This section shall become operative on July 1, 2021."
Jackson argues that the $150 fee for the probation report and the $135 booking fee should therefore be stricken from the judgment and any unpaid debt vacated. Respondent agrees that AB 1869 is retroactive to all cases as of July 1, 2021, but argues that Jackson is not entitled to relief for "sums he paid before July 1, 2021," even though unpaid fees are no longer collectible.
Respondent does not provide any record citation for the proposition that Jackson paid the fees before July 1, 2021. Nor does Jackson state that the fees were ever paid or that any amount should be refunded. We express no opinion on whether relief would include a refund as to any fees that were paid before July 1, 2021.
Instructive in this regard is People v. Clark (2021) 67 Cal.App.5th 248, in which Division Four of this court opined: "The Attorney General is correct that the probation-supervision costs are now uncollectible, but he is wrong to ignore that the statute also requires, with equally plain language, that the 'portion of [the] judgment imposing those costs shall be vacated.' (Stats. 2020, ch. 92, § 62.) Perhaps the Legislature provided for this additional form of relief because it understood that even uncollectible debts can burden an individual or family, but regardless of its purpose, the import of this provision is clear." (Id. at p. 260.) Respondent does not persuade us that Clark was decided incorrectly.
Because we remand on the section 654 issue (see ante), we remand also for the trial court to vacate that portion of the judgment imposing the $150 probation report fee and the $135 booking fee.
G. Wende Review in A162829
On May 24, 2021, the trial court issued an order requiring Jackson to pay the state victim compensation board $19,464.45 as reimbursement for payments it made from the restitution fund to Jackson's victim. On April 22, 2021, the court had declined to stay the issuance of the order pending Jackson's appeal from his conviction. On June 3, 2021, Jackson appealed from the April 22 ruling.
Jackson asks us to conduct an independent review of the record in appeal number A162829 pursuant to Wende, supra, 25 Cal.3d 436. By declaration, appellate counsel has represented that he advised Jackson of the nature of the Wende brief and that Jackson could file a supplemental brief within 30 days of the filing of the opening brief. We have not received any supplemental brief from Jackson.
Review under Wende has been held not to be available for postconviction matters. (E.g., People v. Serrano (2012) 211 Cal.App.4th 496.) In any event, we have conducted an independent review and find no arguable issue. The order is affirmed.
III. DISPOSITION
As to appeal number A160417, the matter is remanded to the trial court solely (1) for consideration as to whether sentence on count one (Pen. Code, § 211) or on count two (Pen. Code, § 243, subd. (d)) shall be stayed pursuant to Penal Code section 654 and (2) to strike the $150 fee for preparation of a probation report (Pen. Code, § 1203.1 (b)) and the $135 booking fee (Gov. Code, § 29550.2). The judgment is affirmed in all other respects. As to appeal number A162829, the order is affirmed.
WE CONCUR. SIMONS, ACTING P. J., BURNS, J.
[*]Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.