Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF094759A
SCOTLAND, P.J.
A jury convicted defendant Marlon Lavell Johnson of first degree burglary, two counts of first degree robbery in concert, and three counts of assault with a firearm, while sustaining an allegation that a principal was armed with a firearm. Finding that defendant had two prior serious felony convictions within the meaning of the “three strikes law” and had served a prior prison term, the trial court sentenced him to 60 years to life in state prison.
On appeal, defendant contends the trial court erred in not instructing on the crime of accessory after the fact (Pen. Code, § 32) as an alternative to aider and abettor liability; the evidence does not support one of his convictions for assault with a firearm; and the court failed to exercise its discretion to strike one of the prior convictions for purposes of sentencing. We shall affirm the judgment.
BACKGROUND
Antoine Johnson lived in a small Stockton apartment with his girlfriend, Cecelia Jensen. On January 2, 2005, defendant called Johnson and arranged to come to the apartment and buy a $10 bag of marijuana. Jensen’s brother, Justin, was at the apartment when defendant arrived.
After Johnson got the marijuana and sold it to him, defendant started to open the front door of the apartment, pausing as he put his hand on the handle. A man wearing a bandanna over his face and carrying a rifle then came into the apartment. The man swung the rifle around the room and said something like, “Everyone getting this, motherfucker. Get down.”
When Johnson hurried to the bedroom, the gunman followed saying to Johnson, “You supposed to be a baller, huh?” and “What you got?” The term “baller” refers to a person with money.
At this point, defendant yelled to Justin, “get outta here.” Justin ran out. At trial, Justin testified that he “never looked back” while fleeing the apartment. Nevertheless, when asked whether defendant also left the apartment, Justin replied, “I don’t think he did, no . . . .”
Meanwhile, as Jensen came out of the closet of the apartment bedroom, the gunman shot her in the shoulder. In pain, Jensen fell the ground saying, “I’m pregnant.” The gunman replied, “I don’t care about your baby, you bitch.”
The gunman then stood over Johnson, who was lying on the floor, pointed the rifle at his head, threatened to blow it off, and demanded, “What you got? Give me whatever -- whatever I can take.” After Johnson removed $45 from his front pocket and handed it over, the gunman searched the rest of Johnson’s pockets and Jensen’s wallet.
When the gunman asked defendant, who was in the living room, whether he knew Johnson, defendant replied, “I don’t have nothing to do with this,” said “Here’s my money,” and threw $20 and a pair of headphones to the ground. The gunman never pointed his weapon at defendant.
The gunman then began collecting a “PlayStation,” CD’s, and DVD’s that were in the living room.
Hearing a loud banging noise from outside the apartment, which sounded like someone falling down the stairs, the gunman asked Johnson if he was expecting anyone. Johnson said, “no,” noticed that defendant was gone, and told the gunman to go look for defendant. The gunman ignored Johnson, finished taking items from the apartment, and left.
Johnson waited 30 seconds before going outside, where he met a friend named Campbell, who had come to the apartment complex to visit with Johnson. While walking up the stairs to Johnson’s apartment, Campbell had heard someone inside yell, “Get on the fucking floor.” Campbell tripped and fell as he started to go back down the stairs. He then hid behind a stairway and called 9-1-1. From his hiding point, he heard the apartment door open and someone run down the stairs. He saw a smaller man come out to the first landing, look around, and then go back upstairs. Campbell heard the door close and, about two minutes later, two men left the apartment and ran down the stairs. The smaller man, the same one Campbell had just seen, was first and holding his hands to his chest as if he was carrying something. The second man was larger and carried a rifle.
When Johnson came out of the apartment, he and Campbell went looking for the gunman and defendant. Johnson saw the gunman getting into the car that belonged to defendant’s brother, codefendant DeMarcus Mason. The gunman was in the front passenger seat, defendant was in the rear passenger seat, and Mason was the driver.
DISCUSSION
I
Defendant, who was convicted as an aider and abettor, contends the trial court erred in not instructing on the crime of accessory after the fact as an alternative to aider and abettor liability. Acknowledging the evidence was sufficient to convict him as an aider and abettor, defendant nonetheless argues the “facts also reasonably supported the theory that [defendant’s] companion hatched his own scheme to burglarize the apartment and rob the occupants, using [defendant’s] stop to purchase marijuana as [the companion’s] opening, without [defendant’s] knowledge, and that it was only after the robbery occurred that [defendant] made the choice to stick with his companion, and not to fall in with the other victims.”
Not only did defendant never request such an instruction, he had no right to it because the crime of accessory after the fact was not a lesser included offense. (People v. Schmeck (2005) 37 Cal.4th 240, 291-292 [accessory after the fact is not a lesser included offense to robbery, and the trial court has no duty to instruct on an uncharged, lesser related offense]; People v. Birks (1998) 19 Cal.4th 108, 112-113, 136 [accessory after the fact is not a lesser included offense to burglary, and a defendant is not entitled to instructions on uncharged, lesser related crimes].) In any event, the evidence was not susceptible to a reasonable inference that defendant was guilty of only being an accessory after the fact; thus, it was insufficient to support an instruction on that crime.
Accordingly, defendant’s trial counsel was not, as defendant claims, ineffective for failing to request an accessory after the fact instruction. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
II
Defendant claims there is insufficient evidence to support his conviction, as an aider and abettor, of assault with a firearm on Justin. We disagree.
In assessing his claim of insufficient evidence, we review “the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
According to defendant the evidence is insufficient to support the conviction because, in his view, the gunman “paid no attention to Justin, did not interact with Justin, and did not point the gun at Justin.” Not so.
Justin testified that when the gunman burst into the room, he yelled something like, “Everyone getting this, motherfucker. Get down.” The gunman carried a rifle in both hands at shoulder level. Justin was asked, “Did the gunman swing the gun by you at any time?” He replied, “Well, he -- as he ran in he was facing this way, so as he chased [Johnson], yes, it went across the whole room . . . .”
“Assault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime.” (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) It is enough if the gunman put the gun in a position where he could have used it against the victim. (See id. at p. 264.) Here, Justin’s testimony not only supports a finding that the gunman pointed the weapon at Justin, it unquestionably supports a finding that the gunman’s threat to everyone in the room, coupled with his use of the firearm and ready ability to use it against everyone in the room to enforce his threat, constituted assault with a firearm.
III
Next, defendant contends his sentence must be vacated because the trial court either abused, or did not understand, its discretion to strike one of defendant’s prior convictions for the purpose of sentencing.
In February 2000, defendant pled guilty in Fresno County to two counts of robbery (“strikes”) stemming from a single incident involving separate victims. At trial on the prior conviction allegations, defendant testified that his appointed counsel in that case had told him the plea would result in only one strike because it involved a single incident, and it was defendant’s understanding that his plea would constitute only a single strike.
Noting the record did not indicate whether such a promise had been made to defendant, the trial court concluded that defendant could not attack his prior convictions in this manner.
Conceding he could not, in this proceeding, directly attack the Fresno County plea, defense counsel nonetheless argued: “But I think this Court has the inherent ability at any time under its broad discretion, to dismiss the strike if the Court feels that that’s in the interest of justice. That’s all I intended to present here would be to dismiss it for purposes of this proceeding, it would still exist, it would still be there for his future.”
The trial court ruled: “If there’s any basis for overturning that [the prior convictions], it can’t be done by this Court, and I don’t think it would be . . . appropriate for this Court then to just simply ignore or strike that strike merely because I might be of a different opinion than the judge was down there, I can’t do that. The court in Fresno [County] is the court with jurisdiction over that.” The court concluded: “So I don’t think that this court could afford the relief that you’re requesting no matter what the transcript showed.”
Actually, regardless of whether the Fresno County plea supports one or two prior serious felony convictions under the three strikes law, the trial court in this case had the discretion to strike one or both of them for purposes of sentencing. (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) By failing to exercise its discretion whether to do so, the court erred. (See People v. Penoli (1996) 46 Cal.App.4th 298, 302.)
The People contend that defendant forfeited his claim by failing to make a Romero motion. We disagree. Although defendant did not specifically invoke Romero or Penal Code section 1385, his request that the trial court exercise its “inherent ability at any time under its broad discretion, to dismiss the strike if the Court feels that that’s in the interest of justice,” was sufficient to constitute a motion to dismiss a strike pursuant to Penal Code section 1385. The People also argue that defendant forfeited the claim because the trial court never ruled on his request to dismiss one of the strikes, and defendant made no effort to secure a ruling. However, the court did rule on defendant’s motion, declaring that it could not afford such relief no matter what the transcript showed. Defendant was under no obligation to press the trial court for a more detailed ruling.
Of course, the error is harmless if the trial court would have abused its discretion by striking a prior conviction for the purpose of sentencing. (People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055.) Such is the case here.
A prior serious felony conviction can be stricken only if the defendant falls “outside the . . . spirit” of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161 (hereafter Williams).) In making this decision, a court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.)
Defendant’s unsupported testimony that his trial counsel in the Fresno County proceeding had told him he was pleading only to a single strike was not a proper basis for dismissing a strike. (See People v. Wallace (2004) 33 Cal.4th 738, 754.) Besides, even though the fact that prior convictions were closely connected to each other might support a decision to strike one of them for the purpose of sentencing (see People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8; People v. Burgos (2004) 117 Cal.App.4th 1209, 1216 (hereafter Burgos)), it would be an abuse of discretion to do so if, considering the factors identified in Williams, supra, 17 Cal.4th at p. 161, it cannot be said that the defendant falls outside the spirit of the three strikes law.
Defendant’s two prior strike convictions arose from one armed robbery involving two victims. This distinguishes his case from Burgos, where the prior strikes were convictions for attempted carjacking and attempted robbery stemming from a single incident involving a single victim. (Burgos, supra, 117 Cal.App.4th at p. 1212, fn. 3.)
Indeed, the nature and circumstances of his prior convictions and his convictions in this case do not demonstrate that defendant is outside the spirit of the three strikes law. To the contrary, the prior convictions involved serious circumstances disturbingly similar to the circumstances in this case. While in Fresno County, defendant aided and abetted the robbery of a drug dealer and another person, during which one of the victims was shot. In this case from San Joaquin County, defendant aided and abetted a very brutal home invasion robbery of a drug dealer, in which a pregnant woman was shot.
Nor do the other aspects of defendant’s background, character, and prospects support a finding that he is outside the spirit of the three strikes law. At sentencing, defendant was 28 years old; had not graduated from high school, but had a General Equivalency Diploma in 1998; had worked only temporarily as a warehouseman and forklift driver; had no assets; and had no specific plan for housing after his release from custody.
Thus, it would have been an abuse of discretion to strike one or both of defendant’s prior convictions for purposes of
sentencing, and the trial court’s failure to exercise discretion whether to do so was harmless.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J., CANTIL-SAKAUYE, J.