Opinion
F073478
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. AMONTE AMOS JONES, Defendant and Appellant.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1465879)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
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Amonte Amos Jones stands convicted, following a jury trial, of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a); count I), carjacking (§ 215, subd. (a); count II), and being a felon in possession of a firearm (§ 29800, subd. (a); counts IV & VI). As to counts I and II, the jury found he personally used a firearm. (§ 12022.53, subd. (b).) After a bifurcated court trial, he was found to have suffered a prior conviction for a serious felony that was also a strike, and for which he served a prison term. (§§ 667, subd. (a) & (d), 667.5, subd. (b).) He was sentenced to a total term of 32 years 4 months in prison, and various financial obligations were imposed.
All statutory references are to the Penal Code.
Jones was jointly charged, in counts I and II, and tried with Steven Oscar Blackwell Austin. We omit the counts with which Austin alone was charged, as his case is not before us on this appeal.
On appeal, we hold: (1) Jones is not entitled to reversal based on admission of the victim's courtroom identification; (2) Section 654 does not mandate a stay of sentence with respect to count I or count II; but (3) Jones is entitled to a remand to allow the trial court to decide whether to exercise its discretion to strike either or both firearm enhancements. Accordingly, we affirm the judgment, but remand for further proceedings.
FACTS
I
PROSECUTION EVIDENCE
As of November 18, 2013, F.C. resided in the 2500 block of Manor Oak Drive, Modesto. At approximately 11:00 that morning, she returned home from grocery shopping and backed her Toyota Highlander SUV into the attached garage. She then unlocked the door leading into the house and began to take her groceries into the kitchen. She left her garage door open.
Unless otherwise specified, all dates in the statement of facts are from the year 2013. In addition, all references to law enforcement personnel are to members of the Modesto Police Department.
As F.C. stepped back into the garage, she saw two African-American males looking at the shelves in the garage. Both men appeared to be in their early 20's. One, whom F.C. identified at trial as Jones, was wearing a white hoodie. The one just behind him, whom she identified at trial as Austin, was wearing a black hoodie. Both hoods were up, covering the men's hair. Jones had a silver revolver, while Austin had a black gun.
F.C. said, "Oh, no, no, no, no, no. No, no, no." Both said, "Shut up, bitch. I'll shoot you. I'll kill you." They pointed the guns at her and walked toward her. She covered her face, then collapsed to the ground, screamed for help, and lost bladder control. Jones stepped on her face, and Austin kicked her in the ribs three times. The men told her to get up, and may have grabbed her in her back. They opened the door and put her into the hall closet. She then heard the garage door close.
As F.C. sat in the hall closet, Jones stayed by the door and asked if she had a cell phone. She said she did not. She heard Austin run upstairs. She heard "lots of wrestling" upstairs, and she kept begging them to take whatever they wanted and just go. Jones, who was still by the closet door, told her to shut up, and that he was trying to help her. His voice was angry, so she fell silent.
F.C. could distinguish the two by their voices. Austin was really angry, while Jones kept yelling at him, "Let's go, let's go. Come on, Kado, let's go, let's go. Hurry up. Hurry up."
When Jones continued to tell Austin to hurry up and it seemed to be taking a long time, F.C. decided to tell them that she had some cash in her underwear drawer. When she said she had money, they demanded to know where. She told them it was in her bedroom and just to take it. She heard both of them run to the bedroom. They asked where the money was, and she told them it was in the dresser with the mirror. She heard "wrestling," and they kept asking where. Austin then said, "The fucking bitch is lying," and he shot a bullet into the bedroom carpet. Jones said, "Fuck, man, let's get out of here." They found cash belonging to F.C.'s husband, and Jones continued to urge that they go. They then told F.C. to stay in the closet. She heard them enter the garage, then her car engine started and she heard them "peel out."
After the vehicle left, F.C. waited about a minute, then left the closet, locked the door leading to the garage, and called 911. During the 911 call (a recording of which was played for the jury), F.C. was hysterical. She related that she had been robbed by two Black men with guns. She thought they stole her car. She said one took her purse, too. She believed they were in their early 20's. One was wearing a white sweatshirt hoodie, and the other one's shirt was "maybe" all black. When F.C. said she thought they also took her cell phone, the dispatcher obtained information about the carrier and cell phone number. F.C. was unable to give any further description of the perpetrators and could not remember the license plate number of her vehicle.
When officers arrived on the scene, F.C. gave them a description of the perpetrators. She said they were African-American and were wearing hoodies, one white and one dark, possibly black. She thought she placed their height at five feet six inches or six feet. She said they appeared to be about the same height and weight. She also said both guns were black.
At trial, F.C. stated she was five feet three inches tall. The two men were slightly taller than she. She also testified to previously telling a detective the men were six feet tall and approximately 180 pounds.
The parties stipulated that at the time of trial, Jones was five feet 10 inches tall with dress shoes, while Austin was five feet six inches tall with dress shoes.
At some point, F.C. ascertained that a television, her son's laptop, her purse, her husband's sports socks, an unknown amount of cash, and her Highlander had been taken. In addition, a Wii Fit game system box that had been in her son's closet had been moved.
Erin Gonzales, an identification technician with the Modesto Police Department, processed evidence at the house for latent prints. She found three good-quality prints, one on a Bank of America checkbook box and two on the Wii Fit box. After entering the clearest print from the Wii Fit box into the Automated Fingerprint Identification System (AFIS), she compared the possible matches and concluded the print was made by Austin. Ultimately, she concluded the two prints on the Wii Fit box were made by Austin's left index and right little fingers. She informed detectives Austin was a suspect.
With respect to the print she identified as having been made by Austin's right pinky finger, Gonzales found 21 points of similarity. With respect to Austin's left index finger, she found 11 points of similarity. Although in the latent print community there is no standard minimum number of points of similarity that are required before a print can be identified, Gonzales's preference is eight such points.
Meanwhile, the police dispatcher activated a "ping" on F.C.'s cell phone. It showed a last location in the area of the Emerald Pointe apartment complex in the 300 block of Standiford, on the property line between the complex and the strip mall that sits at McHenry and Standiford Avenues. Detective Messer checked the area on the afternoon of the robbery, including looking through dumpsters along the property line, but found none of the stolen items. The Highlander was found approximately 300 yards from the apartment complex, however. Officers set up surveillance on it for several hours, but no one returned to the vehicle.
"Pinging" a cell phone allows the cell phone provider to obtain a general physical location for the phone.
As of November 18, S.F. lived on Manor Oak Drive. She was dating Jones, and had seen him with Austin a couple times. S.F. was unaware of the robbery until Jones and Austin were arrested. She and Jones never discussed his involvement in a robbery. He did, however, tell her that he got two guns from a friend in Riverbank. The discussion occurred before S.F. heard about the robbery. Jones said nothing about how he was going to use the guns.
Detective Pouv interviewed S.F. two days after the robbery took place. S.F. related that after hearing about the robbery, she visited Jones after work. During her visit, she saw Jones in possession of a couple hundred dollars, which she found unusual because he usually did not have that kind of money. S.F. related that during the same conversation, Jones talked about having two guns that he acquired from a friend who lived in Riverbank.
As of November 19, police had Austin under surveillance. He was driving a tan 1991 Lexus, in which Jones was the passenger. The vehicle was followed to the Emerald Pointe apartments, where Austin went up to apartment 37 for a brief time and then returned to the car. When the Lexus left the apartment complex, Lieutenant Dealba gave directions for a patrol unit to initiate a stop on the vehicle.
Pouv first began surveilling the Lexus in Ceres. At the time, Austin was driving, but a Black male adult with long dreadlocks — not Jones — was the passenger.
Shortly after 3:00 p.m., Officers Griffith and Castro, who were in uniform and in a marked police vehicle being driven by Castro, were directed to the Lexus. It was westbound on Standiford, approximately three-quarters of a mile from the apartment complex. Castro activated his emergency lights and siren, and initiated a high-risk enforcement stop, which involved the officers exiting their vehicle with guns drawn. Austin pulled over, but then accelerated rapidly away. A vehicle pursuit ensued. Eventually, the Lexus ran a red light and collided with another vehicle, and Jones and Austin were taken into custody. A chrome .25-caliber semiautomatic handgun with five live rounds in the magazine was found in the pocket of the passenger side door.
No property associated with the robbery was found in the Lexus. When it collided with the other vehicle, however, the Lexus's trunk popped open and items flew out of the trunk. A Pepsi box found in the roadway about 100 feet from the Lexus contained what appeared to be two black semiautomatic pistols. On further examination, they were determined to be Airsoft pistols without the orange safety tips.
After the vehicle crash, Gonzales was asked to compare the print lifted from the Bank of America box with Jones's prints. She determined the print on the box was made by Jones's right thumb. Gonzales also processed the pistol and replica firearms associated with the Lexus, but found no prints identifiable as having been made by Austin or Jones.
Gonzales found nine clear points of similarity and one point that was in a distorted area where the finger had slipped or moved. She found no dissimilarities.
After the police chase, Detective Hicks went to apartment 37. He obtained permission from the residents, one of whom was L.W., to search for property taken during the robbery. None was found.
Within a few days following the robbery, F.C.'s son attempted to locate his laptop by using a program that allowed him to log in remotely from his computer. He was able to see the laptop was open to a Facebook page for a particular individual, and he could see the IP address to which the laptop was logged in. Messer spoke with the individual, who lived in Riverbank. She did not know the laptop was stolen.
II
DEFENSE EVIDENCE
Officer Aja was the first officer to arrive on the scene following F.C.'s 911 call. When he spoke to F.C., she described both of the people involved as having black guns. She said the one wearing a white hooded sweatshirt put his hand over her mouth, while the one wearing the black hooded sweatshirt put his foot on her face. When she provided a physical description, she said the perpetrators were about Aja's height. Aja is six feet three inches tall. F.C. also stated she would not be able to identify the perpetrators.
Dr. Haber, who testified as an expert in the fields of fingerprints, perception, and memory as it related to eyewitnesses, explained that the assumption that people's fingerprints are unique to that person has never been tested, although he felt it was probably reasonable. Proper procedure requires a fingerprint examiner or analyst to look for points of dissimilarity when comparing prints. If there is a single discrepancy that cannot be explained (for instance, because there was not enough ink or the pressure might have distorted a ridge), then the finger in question must be excluded as the source of the print from the crime scene.
Haber explained that observer expectancy bias means that if someone expects something to happen, he or she is much more likely to see what is expected than to notice information disconfirming his or her hypothesis. It is a form of selectivity in perception. Confirmation bias is similar. If, for example, a fingerprint examiner makes a comparison and draws a conclusion, confirmation bias can occur if the person asked to check the work knows what conclusion was reached. If a fingerprint examiner is told to examine prints, but a person has already confessed to the crime, there is a bias that makes it more likely the examiner will find a match.
According to Haber, the purpose of AFIS is to try to find exemplar prints that match a print found at a crime scene. If the AFIS system is one that ranks the possible matches, the ranking will always be in terms of similarity. All AFIS systems require the examiner to mark features he or she sees on the latent print before entering it in the system, thus giving the computer some specific targets for which to look.
Haber explained that the National Academy of Science has found there is no evidence to show individualization. Thus, when an examiner concludes there is an identification, he or she is not excluding anybody else as being the possible source of the print. Haber, who was trained as a fingerprint examiner and had examined thousands of prints, conceded he had never seen two different people have the same fingerprint.
If, for example, an individual's thumb and the latent print are so similar that the examiner concludes the thumb made the print, this is identification. Individualization means that only that thumb could have been the source of the latent print.
According to Haber, the scientific community has not established an error rate in fingerprint analysis. In his opinion, the best estimate is an error rate of between five and 15 percent. Haber opined there is always a measure of unreliability, because the ability of an examiner to see detail in patterns differs as a function of the training, skill, and experience of the examiner. Haber was not asked to do any sort of fingerprint comparison in this case.
Haber explained there are several known error rates for eyewitness identification, and they depend on the circumstances under which the identification was made. If there is a high level of fear in the encounter, it "reduces dramatically" the accuracy of a subsequent identification. Moreover, if the perpetrator has a gun or other weapon, particularly if it is being used to threaten the witness, the witness tends to look at the gun and not at the face. Fear and the duration of the event also may affect someone's memory of an event. In addition, the victim or witness and the perpetrator being of different races is a factor to consider. In Haber's opinion, all of the foregoing factors would reduce the accuracy with which a witness can recall an event or make an identification of an individual.
Haber also explained that someone can make use of extraneous information, rather than memory, to make an identification without realizing it. For example, if someone who originally said he or she would be unable to make an identification then made an identification in a courtroom proceeding in which he or she was asked to consider people who were clothed in jail jumpsuits, Haber would consider the identification as biased. The biased procedure would raise concerns about the accuracy or reliability of the identification.
Dr. Davis testified concerning eyewitness identification. She explained that the basic level of inaccuracy is much greater than people assume. People tend to give great weight to eyewitness identifications, but a number of things can affect the witness's accuracy, and there are misconceptions about the conditions under which eyewitnesses can be most accurate. For instance, research has shown that people process the faces of persons they know differently than of those they do not know, making it more difficult to identify correctly an unfamiliar person. The expression on the unfamiliar person's face is also important. If that person is first seen at a crime scene, where he or she may be angry and threatening and menacing, and is then seen in a lineup or somewhere else in which he or she has a neutral facial expression, correct identification is more difficult. In addition, there is salience of internal features. Studies have shown that taking away the outside of the face, such as the ears and the hair, still allows recognition of someone well known to the witness, but adversely affects identification of someone unknown to the witness.
Davis related a study in which the witness was shown a single person, as in a showup, or was shown someone in court, and asked if it was the right person. The results were 85 percent accurate overall; however, 19 percent identified the person even if the correct person was not there. Moreover, the study was conducted under ideal circumstances, and did not involve conditions such as poor lighting, a bad angle of view, cross-race identification, or distraction from focusing on the task of identification. In studies of actual cases, less than half the witnesses, on average, identified the suspect. Of those who did make identifications, roughly one-third misidentified someone and identified someone out of a lineup that the police knew was innocent. In some studies, as high as 49 percent picked the wrong person.
Davis explained there is less accuracy in identifying members of a different race. This is known as cross-race bias. It may result in failure to identify the correct person or false identification of the wrong person. The problem becomes even more difficult when a face of a different race is seen along with other faces of that race. In addition, there is the issue of inability to recall where a face was seen — for instance, around the neighborhood versus at the crime scene. The ability to remember where the face was seen is not as good with cross-race faces. Also, the ability to tell the difference between two faces is worse in cross-race situations. Finally, in every case, the more time that passes between when the face originally was seen and when the attempted identification occurs, the more difficult accurate identification becomes. Similar problems arise in identifying someone of a different age group.
Davis explained that memory does not record things like a video camera would. It changes and fades over time. Generally, it fails at three stages: when the event occurs (the encoding stage), during storage, and during retrieval.
At the encoding stage, memory may be affected by the opportunity to observe, whether something was interpreted correctly, and whether it made it from short-term memory, which lasts about 30 seconds, to long-term memory. In a complex criminal event, the witness may not have a good opportunity to observe and pay attention, because too many other things draw the person's attention. The more complex the situation, the more there is to process, and the more there is to process, the less time the person can spend on any given thing. Memory depends on attention. In a situation involving a crime, eyes tend to go to the weapon rather than the face. Thus, eyewitness studies have shown that when there is a weapon present, people are less likely correctly to identify the person wielding the weapon than if there is no weapon present.
With respect to traumatic events, Davis explained that people do not forget the event itself. This is a different issue, however, than whether they remember the details correctly. Failure to identify the correct person and mistakenly identifying the wrong person become more likely under high stress.
Davis explained that memory can fade, and it can also become distorted or changed over time. People can be led to remember things that did not happen. This can occur through such events as witnesses talking together about what happened, suggestive interviews, or even the effort of trying to remember engendered by a police interview. It is hard, after someone spends a lot of time picturing something and thinking about it, to be certain whether what appears to be a memory was actually seen originally or was created as part of that effort. New images can be acquired from some other source and then mistaken for actual memories. This is called source-memory confusion, and is the same as "where did I see that face?"
Davis was asked a hypothetical question based on the evidence in this case. In her opinion, the identification issues present included the basic level of accuracy, brevity of exposure, cross-racial identification, stress and trauma, the intervals between the original exposure and identification, the possibility of suggestive questioning, and the changes in stories. Davis opined that earlier reports are a fresher memory and so often should be given more weight; however, when someone is questioned when he or she is so hysterical that he or she can barely think, he or she will be able to answer questions better after calming down and will be able to remember more. Anxiety prevents a person from retrieving things from memory. This is a different issue than whether, once retrieved, the memory has been retrieved accurately. In addition, if the witness is later told there is a fingerprint that matches a suspect and is provided with that suspect's name, or if his or her story changes in response to what he or she subsequently is told by police, that is also a factor to consider with respect to reliability of an in-court identification.
DISCUSSION
I
SUGGESTIVE IDENTIFICATION
Jones contends the trial court erred by denying his motion to suppress F.C.'s courtroom identification of him as one of the perpetrators. Jones says F.C.'s trial identification was tainted by the suggestive identification at the preliminary hearing. He argues the court abdicated its duty to determine whether (1) the identification procedure employed at the preliminary hearing was unduly suggestive, such that any identification at trial would be tainted thereby; and (2) the identification could be found to rest on an independent source, so as to permit its introduction notwithstanding the suggestive procedure. We find no cause for reversal. A. Procedural Background
F.C. testified at the preliminary hearing that the perpetrators were both African-American males, about six feet tall. One had on a white hoodie, and the other one had on a black hoodie. Both hoods were up, but neither man was wearing a mask. F.C. did not see any scars, tattoos, or other distinguishing marks on either man. She could not remember if either was wearing gloves. She did not know if she saw the men's hands, because her eyes were focused on the two weapons pointing at her face. She first saw the men from a distance of about three feet. The garage lights were not on, but she did not need to have them on as it was bright in the garage. F.C. could see the faces of both men. Asked by the prosecutor to look around the courtroom to see if she recognized either of the two men, F.C. identified Jones as the one in the white hoodie, and Austin as the one in the black hoodie. Counsel for Jones objected, stating: "This is highly prejudicial. She hasn't made an out-of-court identification before this." The objection, which was joined by counsel for Austin, was overruled.
At the time of the preliminary hearing, Jones had tattoos on his right hand and at least up to his elbow.
F.C. testified that she described the men to the 911 operator as being African-American, five feet nine inches to six feet tall, and not older than 26. At no time was she shown photographs of either man, nor was she brought in to view a lineup. At some point, an officer told her that they had found one of the assailants. F.C. did not remember if she was told that person's name. She was not shown his photograph. She did not remember if any officer described the person to her. She did not read any newspaper articles about the robbery.
F.C. told one of the officers on the date of the incident that she could not identify the perpetrators. She testified it was "hard to identify someone with just the hoodie and just like this part of the face ...." She was also quite frightened at the time, which she thought could have had an impact on her ability to see their faces and remember them. At the time of the preliminary hearing, however, her mind was clearer concerning the incident. F.C. explained that she was very traumatized, but starting the following day, she began having clear visual memories of things that happened that she had forgotten. On the day after the incident, her memories of the two men's faces had fully returned to her. She started having horrible flashbacks. She did not remember whether, when speaking with a detective on November 20, she said she did not remember the men's faces. Within a week after the incident, an officer told F.C. they had found "a really good print" upstairs in the house.
Messer testified at the preliminary hearing that he talked to F.C. several times over the week following the incident. He was aware that she had described both suspects as being about six feet two inches tall and weighing 180 pounds. He did not get an additional description from her. He was aware F.C. had said she could not identify the assailants. To his knowledge, no member of law enforcement showed her any photographic lineups or anything of that nature. Once a suspect was developed, the police probably would have shown her a photographic lineup, if they believed she could identify someone.
Jones moved, in limine, to preclude F.C. from identifying him at trial, on the ground the trial identification would be unduly tainted by her impermissibly suggestive identification at the preliminary hearing. He argued F.C. was unable to make an identification at the time of the incident and so was never provided with any type of lineup by police; months later, she was "suddenly" able to make an identification of both defendants at the preliminary hearing; and at the preliminary hearing, he and Austin were the only people who were seated at the defense table, wearing jail jumpsuits. Jones asserted F.C.'s pretrial identification was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification at trial, as F.C. had likely transposed the image of Jones in a jumpsuit at counsel table into her memories of the people who committed the crime.
Austin also moved for exclusion, asserting F.C.'s identifications were unreliable in part because of the inaccuracy of her prior descriptions and her statements to officers that she could not identify anyone.
The People opposed the motion. The prosecutor asserted the defense would be able to impeach F.C. at trial with her statement at the scene about being unable to identify anyone, as well as inconsistencies in her descriptions of the assailants.
At the hearing on the motion, counsel for Jones argued that F.C. identified both defendants for the first time when they were in court, seated in jail jumpsuits behind their attorneys. He asked the court to exclude both any further in-court identification by F.C., as well as evidence concerning the identification at the preliminary hearing. Counsel argued that the court had to make a case-by-case determination, and if it appeared the witness's memory had been tainted, then the court should exercise its discretion to exclude the identification. After further argument, the court stated:
"... I think counsel is misinterpreting. At least the way I see it when you talk about a tainted identification, that means in my view that something along the way was done improperly that would influence an identification, and that's where all that long list of factors that [counsel for Austin] pointed out that it's contact [sic], whether or not her memory was influenced by some outside impermissible force, and nobody has suggested that's the case.
"I think that the problem here is that she didn't think she could ID anybody and told law enforcement repeatedly that she couldn't, then came into court and was rather certain. I think that is covered by argument, and I don't think it's a tainted ID. I think it's inconsistent statements and uncertainty at the very most. I also think Jury Instruction 315 addresses that particular situation. It lays out all these different factors that the jurors are going to be asked to consider in evaluating her in-court identification or any other identification. Along with that, I think it also goes with other evidence in the case, and nobody else has talked about that in this context. If there's no other evidence to suggest that Mr. Jones or Mr. Austin was at the residence in [sic] the day in question, then that Jury Instruction 315 becomes more critical, but the more evidence that connects them to the scene, the less critical the in-court identification becomes.
"I don't think it's a tainted ID. I think the problem arises from the witness's statements and inconsistencies and initial uncertainty. I don't think it's a reason to exclude the testimony, and for that reason it will not be excluded.
"The People will be allowed to solicit in-court identification. I should point out also to [both defense counsel] that if the Court were to exclude her in-court identifications, then you would lose all those inconsistencies in your cross-examination because they would no longer be relevant. If you want to point out the fact that she says she couldn't identify anybody and all these different physical descriptions she gave that may or may not match your individual clients, you lose that if the identification is excluded because it's not an issue anymore.B. Analysis
"So I think both sides have something to be gained by her statements, and at least the People have something to be gained by the fact that she said in court that she recognized the two, but the defense has a lot to be gained by what she said prior to making the identification."
" '[A] violation of due process occurs if a pretrial identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." ' " (People v. Sanders (1990) 51 Cal.3d 471, 508 (Sanders); see Simmons v. United States (1968) 390 U.S. 377, 384 (Simmons).) " 'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation].' " (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa); see Neil v. Biggers (1972) 409 U.S. 188, 199-200.)
" ' "Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification." ' " (People v. Thomas (2012) 54 Cal.4th 908, 930-931, italics added.) "In other words, '[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.' " (Ochoa, supra, 19 Cal.4th at p. 412.)
" ' "Whether due process has been violated depends on 'the totality of the circumstances' surrounding the confrontation. [Citation.]" The burden is on the defendant to show that the identification procedure resulted in such unfairness that it abridged his rights to due process.' " (Sanders, supra, 51 Cal.3d at p. 508.) "We review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive." (People v. Gonzalez (2006) 38 Cal.4th 932, 943.)
The trial court here found the identification was not tainted. We have found no authority for the proposition an in-court identification procedure such as occurred at the preliminary hearing in this case is properly subject to constitutional challenge. The California Supreme Court has "never extended the rules regarding extrajudicial identifications to subsequent identifications in court, and defendant cites no authority doing so." (People v. Carpenter (1997) 15 Cal.4th 312, 368, abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) Although there undeniably is suggestiveness "when the original confrontation is one-to-one in the courtroom with the suspect identified by his presence at the counsel table" (People v. Breckenridge (1975) 52 Cal.App.3d 913, 935 (Breckenridge)), there is no requirement that an in-court identification be preceded by a lineup or other form of extrajudicial identification procedure (see People v. Rodrigues (1994) 8 Cal.4th 1060, 1155 (Rodrigues)). "The People had a right to adduce evidence pertaining to the identity of the perpetrators of the crimes in the form of the in-court identification testimony of the eyewitness-victim in order to meet their evidentiary burden in the [preliminary hearing] proceeding." (People v. Green (1979) 95 Cal.App.3d 991, 1003 (Green); see § 872.)
In light of the arguments before the court and that ruling, we reject Jones's claim he is entitled to reversal because the trial court failed to undertake an analysis of whether the preliminary hearing procedure was unduly suggestive.
In Perry v. New Hampshire (2012) 565 U.S. 228, 232, 241, the United States Supreme Court held that pretrial screening for reliability comes into play only when law enforcement officers use an unnecessarily suggestive identification procedure. In United States v. Wade (1967) 388 U.S. 218 (Wade), where the issue was the right to counsel at a postindictment lineup (id. at pp. 235-237), the high court spoke of "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification" (id. at p. 228, italics added). We will assume, for our analysis, that law enforcement officers and prosecutors are interchangeable with respect to the propriety of pretrial identification procedures. (See People v. Contreras (1993) 17 Cal.App.4th 813, 820.)
Taking into account all the circumstances, including the fact there was no reason for the investigating officers or the prosecutor to believe, prior to the preliminary hearing, that F.C. might be able to identify the perpetrators, we conclude the in-court identification procedure at the preliminary hearing was not unduly suggestive and unnecessary. (See People v. Yonko (1987) 196 Cal.App.3d 1005, 1008-1009; Green, supra, 95 Cal.App.3d at p. 1003; Breckenridge, supra, 52 Cal.App.3d at p. 935; see also Evans v. Superior Court (1974) 11 Cal.3d 617, 620-621, 625.) This was not an out-of-court identification, the circumstances and potential suggestiveness of which could not be accurately reconstructed or depicted for the jury. (See Wade, supra, 388 U.S. at pp. 229-232.) Had the prosecutor waited until trial to ask F.C. if she could identify anyone, such a procedure would not be subject to a constitutional challenge. (See People v. Alexander (2010) 49 Cal.4th 846, 903.) That the procedure took place instead at the preliminary hearing did not make it unduly suggestive and unnecessary under the circumstances. Accordingly, it provided no grounds for suppressing F.C.'s identification at trial. Jones was free to — and did — expose to the jury the potential for error, by means of both cross-examination and expert testimony. (See Manson v. Brathwaite (1977) 432 U.S. 98, 113, fn. 14; Simmons, supra, 390 U.S. at p. 384; Rodrigues, supra, 8 Cal.4th at p. 1155.) The accuracy of F.C.'s identification was properly left to the jury to determine. (People v. Virgil (2011) 51 Cal.4th 1210, 1256.)
In light of our conclusion that the procedure resulting in F.C.'s identifications of Jones was not impermissibly suggestive under the circumstances, " 'our inquiry into the due process claim ends.' " (Ochoa, supra, 19 Cal.4th at p. 412.) We need not reach the question " 'whether the identification was nevertheless reliable under the totality of the circumstances.' " (People v. Carter (2005) 36 Cal.4th 1114, 1164 (Carter); accord, People v. Yeoman (2003) 31 Cal.4th 93, 125.) The jury was properly allowed to hear F.C.'s identification testimony, and to evaluate it in light of the weaknesses the defense effectively highlighted.
Were we to conclude otherwise and so further conclude F.C. should not have been permitted to identify Jones at trial, we would find the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see Gilbert v. California (1967) 388 U.S. 263, 273-274; Wade, supra, 388 U.S. at p. 242.) "Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant." (People v. Gardner (1969) 71 Cal.2d 843, 849; accord, e.g., People v. Andrews (1989) 49 Cal.3d 200, 211; People v. Johnson (1988) 47 Cal.3d 576, 601.) The fingerprint evidence presented at trial was strong, Jones's arguments to the contrary notwithstanding. Jones's print was found on a checkbook box to which he would have had no means of access were he not one of the perpetrators. (Compare People v. Tuggle (2012) 203 Cal.App.4th 1071, 1076 & cases cited with People v. Carlos (2006) 138 Cal.App.4th 907, 909, 912.) In addition, there were the statements of Jones's girlfriend to police, linking Jones to an unusual amount of cash and two guns around the time of the robbery. In light of the direct and circumstantial evidence linking Jones to the crime, any error was harmless. (See Carter, supra, 36 Cal.4th at p. 1164, fn. 23.)
II
SENTENCING ISSUES
A. Failure to Stay Term Imposed for Robbery
In his sentencing statement, Jones argued the carjacking was part of the same course of conduct as the robbery; hence, execution of sentence on the carjacking count should be stayed pursuant to section 654. The prosecutor argued the contrary. The court declined to stay the sentence, stating:
"In this case if there had been a separate — if the defendants had wanted to simply take the victim's vehicle they could have done that in the garage. Instead they confronted her. She was assaulted in the garage. She was moved from the outside of the garage, where it was open, to an inside enclosed area. She was placed in a closet. She was held there while they ransacked her house. They used her vehicle to facilitate removing whatever property they gathered out of her house.
"The movement from the garage to the inside increased not only the fear in her, it also increased the likelihood of harm to her because now she's concealed in the house rather than open to public view partially in the garage. It also prolonged her suffering because it made the incident take longer. So if the defendants had only wanted to comit [sic] a carjack, that could have been accomplished without increasing all that trauma to the victim, increasing the likelihood that something would go wrong."
Jones now contends the trial court erred by failing to stay, pursuant to section 654, the term imposed for robbery. He argues the record does not contain substantial evidence to support a finding of independent multiple criminal objectives. We conclude the trial court did not err.
In his opening brief, Jones states that "[a] concurrent sentence for the robbery was required." Where section 654 applies, it precludes concurrent, as well as consecutive, terms. (People v. Montes (2014) 58 Cal.4th 809, 898.)
Jones also contends the trial court was required to stay sentence on the robbery count, whereas in the trial court, he argued the sentence for carjacking must be stayed. This discrepancy need not concern us, since Jones was not required to object at sentencing to preserve the issue for appeal. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654's purpose is to ensure that punishment is commensurate with an offender's culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Thus, the statute "precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the 'intent and objective' of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268 (Cleveland); see People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] 'We must "view the evidence in a light most favorable to the [People] and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; accord, e.g., People v. Mejia (2017) 9 Cal.App.5th 1036, 1046; Cleveland, supra, 87 Cal.App.4th at p. 271.)
Where the fact are conceded, the question is one of law. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5; Harrison, supra, 48 Cal.3d at p. 335.) Here, the trial court made a factual determination based on evidence that was disputed. Accordingly, we do not believe this case involves conceded facts, and we review the trial court's decision accordingly. Were we to review the matter as a question of law, however, our conclusion would be the same.
"[T]he taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences." (People v. Bauer (1969) 1 Cal.3d 368, 376-377.) While automobile theft is a violation of property interests to which the proscription against multiple punishments applies (id. at p. 378), however, "carjacking is a crime of violence, distinct from robbery, and not merely a violation of the victim['s] property interest in [her] motor vehicle. It is also ... distinct from home invasion robbery because it involves the taking of a motor vehicle from the victim['s' person[] or immediate presence." (People v. Capistrano (2014) 59 Cal.4th 830, 886-887 (Capistrano), overruled on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104.)
Capistrano, on which the trial court relied, is sufficiently similar to the present case that we conclude it disposes of Jones's claim. In Capistrano, defendant and at least two other men committed two sets of crimes on two different occasions. In the first incident, involving victims J.S. and E.G., the victims were accosted immediately after they pulled into their garage. One of the assailants demanded E.G.'s money at gunpoint, then the men took the victims into the house. Once inside, they repeatedly demanded to know where the money was, and they rummaged through various places in the house. Eventually, J.S. was sexually assaulted. After the men left, the victims found their home ransacked and various items taken. Also taken was the victims' vehicle. (Capistrano, supra, 59 Cal.4th at pp. 841-842.)
In the second incident, a woman arrived home after grocery shopping. She pulled into her detached garage and took groceries into her house. When she returned to the garage, she was accosted by two men, one of whom was armed with a gun. This man ordered her into the house. Her husband arrived home and was also accosted. The assailants asked the woman for money and where she kept her car keys. The men took the car keys and Christmas presents. After they left and the police were called, the victims discovered numerous items were missing from the house. The woman's car was also missing. (Capistrano, supra, 59 Cal.4th at pp. 842-843.)
On appeal, the defendant contended, in pertinent part, that the trial court violated section 654 by sentencing him to consecutive sentences on the robbery and carjacking counts involving E.G. and J.S., and also on the carjacking and robbery counts involving the second pair of victims. (Capistrano, supra, 59 Cal.4th at p. 885.) He argued that in each incident, the carjacking and robbery were part of a single transaction or course of conduct, "beginning when the victims were removed from their cars and ending only when defendants left with the stolen items, which included the vehicles," so that his sentences on the carjacking counts should have been stayed. (Capistrano, supra, 59 Cal.4th at pp. 885, 887.) Our state high court disagreed, explaining:
"Defendant was charged in each incident with, and the jury convicted him of, two distinct crimes of violence against the victims, robbery and carjacking. The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective. Rather, viewing the evidence in the light most favorable to the trial court's ruling, we affirm its conclusion that defendant harbored separate objectives for each offense and was appropriately punished for both.
"Defendant and his cohorts confronted the victims at two points. They first accosted them at their cars and then again, inside the victims' residences when they demanded the victims' money and property. Had defendant simply intended to commit a carjacking, he could have done so at the initial point of contact. The evidence reveals, however, that defendant had another, distinct purpose — to rob (and commit other crimes) inside the victims' homes. The elevation of the threat to the victims by forcing them into their homes where defendant committed additional crimes amounts to a separate criminal objective. [Citation.] Accordingly, we find no error in the court's refusal to stay the sentence on the carjacking counts." (Id. at p. 887.)
Jones's attempts to distinguish Capistrano are unpersuasive. So is his attempt to bring the facts of his crimes within the purview of the California Supreme Court's more recent discussion of section 654, People v. Corpening (2016) 2 Cal.5th 307 (Corpening).
In Corpening, the victim and his son loaded their van with valuable coins they were planning to sell at a swap meet. The van was parked in the driveway in the front of their home. While the son went to lock the house, the victim got into the driver's seat and prepared to pull away. At that moment, he was accosted at gunpoint and ordered out of the vehicle. The victim complied, but then attempted to prevent his assailant from climbing into the van. They struggled, but the assailant managed to drive off. He picked up a confederate, and the two were followed by several other accomplices, one of whom was Corpening. At an apartment complex, the group began unloading the boxes of coins. Eventually, Corpening pled guilty to carjacking and robbery, among other offenses. The basis for his plea on those counts was that his accomplice took a motor vehicle in the victim's possession by force and fear, and also took personal property from the victim's person, possession, and immediate presence by force and fear. The personal property in question was inside the vehicle at the time the vehicle was forcefully taken. The trial court imposed consecutive sentences for the carjacking and robbery. (Corpening, supra, 2 Cal.5th at pp. 309-310.)
The California Supreme Court held that section 654 did not permit punishment under both provisions. (Corpening, supra, 2 Cal.5th at p. 309.) The court stated: "Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act — i.e., a course of conduct — do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives." (Id. at pp. 311-312.) The court then went on to explain:
"Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses. [Citations.] On these facts, the forceful taking of a vehicle on a particular occasion is a single physical act under section 654. The forceful taking of [the victim's] van, and the rare coins contained therein, completed the actus reus for robbery — the felonious taking of another's personal property by force. Precisely the same action, not a separate but related one taken at a separate time or in a distinct fashion, was also the basis for the contention that the defendant completed the actus reus for carjacking — the felonious taking of another's motor vehicle by force. It was the same show of force — committed at the same time, by the same person — that yielded for Corpening and his coconspirators the rare coins contained within the carjacked van, giving rise to the robbery conviction. Neither offense was accomplished until completion of the single forceful taking identified by the prosecution as the basis for conviction under the carjacking and robbery statutes. These circumstances render it all but impossible to accept the contrary contention that the forceful taking in this case constitutes multiple physical acts for purposes of section 654." (Id. at pp. 313-314, fns. omitted.)
The high court emphasized that the forceful taking of the victim's van "was a single physical act for purposes of section 654 because that act simultaneously accomplished the actus reus requirement for both the robbery and carjacking." (Corpening, supra, 2 Cal.5th at p. 315.) It did not matter that the act could be broken down into constituent parts, such as forcing the victim from the vehicle, struggling with him as he attempted to resist, and then driving off with the van: "[T]hese were nothing more than components of a single physical act because none of these acts on their own completed the actus reus required for the relevant crimes.... Only the forceful taking of the van — and with it, of the rare coins contained therein — did so." (Ibid.) Since a single physical act served as the basis for convicting Corpening of two separate crimes, section 654 did not permit the imposition of separate punishments, regardless of whether the forceful taking involved multiple intents and objectives. (Corpening, supra, at p. 316.)
If, in the present case, Jones had been convicted of robbery and carjacking based on the taking of F.C.'s Highlander and what it contained at the time force and/or fear was applied, Corpening would control. Unlike in Corpening, however, there was not simply one forceful taking or one physical act. Rather, there were multiple applications of force or fear, and multiple takings, that were separated both physically and temporally. They were not merely components of a single physical act. Rather, Jones had time to reflect between offenses, and each offense created a new risk of harm. (See People v. Felix (2001) 92 Cal.App.4th 905, 915.)
Since we are confronted with a course of conduct, rather than a single physical act, we must consider Jones's intent(s) and objective(s). (See Corpening, supra, 2 Cal.5th at p. 312.) As in Capistrano, supra, 59 Cal.4th at page 887, the trial court properly could find from the evidence that Jones harbored multiple, albeit perhaps simultaneous, intents and objectives. To say the taking of the vehicle (carjacking) and the taking of the household items and cash (robbery) furthered the single intent and objective of stealing is too " 'broad and amorphous' [a] view of the single 'intent' or 'objective' needed to trigger the statute [that] would impermissibly 'reward the defendant who has the greater criminal ambition with a lesser punishment.' " (Harrison, supra, 48 Cal.3d at pp. 335-336.)
Section 654 did not preclude separate punishments. The trial court did not err. B. Senate Bill No. 620
In sentencing Jones, the trial court imposed a firearm enhancement on counts I and II, although it recognized the evidence at trial showed Jones likely was not the person who fired the shot. The court declined to impose the mitigated base term in light of the circumstances of the offenses, but chose the middle rather than the aggravated term. The court acknowledged it was imposing a lengthy sentence, but found it justified by Jones's record and the circumstances of the offense.
At the time Jones was charged, convicted, and sentenced, section 12022.53, subdivision (h) provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." Thus, imposition of both firearm enhancements was mandatory.
After Jones was sentenced, but while his appeal was still pending, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, § 2.) Effective January 1, 2018, subdivision (h) of section 12022.53 provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Jones's case was not yet final when the foregoing amendment went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) In light of this fact and the fact section 12022.53, subdivision (h) now vests the trial court with authority to lower Jones's sentence, we conclude the amendment applies to the instant case. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; see People v. Francis (1969) 71 Cal.2d 66, 75-76.)
The Attorney General concedes the amendment applies to Jones, and further concedes a remand is required to afford the trial court the opportunity to consider striking one or both of the firearm enhancements. We agree.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence Jones accordingly. If the trial court resentences Jones, it shall cause to be prepared an amended abstract of judgment that reflects the new sentence, and shall cause a certified copy of same to be transmitted to the appropriate authorities.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
SMITH, Acting P.J. /s/_________
MEEHAN, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.