Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Joan Comparet-Cassani, Judge. Affirmed., Los Angeles County Super. Ct. No. NA054106.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant Jeremy Jones.
Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant Alonzo Perkins.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Herbert S. Tetef and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
SUMMARY
WOODS, J.
Jeremy Jones and Alonzo Perkins were convicted of one count each of murder, attempted murder, robbery and felon in possession of a firearm with certain personal use allegations found true. In Jones’s appeal, he claimed errors in the trial court’s denial of his motions for self-representation, exclusion of evidence and sentencing, citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Perkins’s appeal challenged the trial court’s denial of his motion to suppress the surviving victim’s identification of him as well as the court’s evidentiary and sentencing decisions. In 2005, we affirmed as to both Jones and Perkins.
Our Supreme Court denied Jones’s petition for review, but the United States Supreme Court granted his petition for writ of certiorari, vacated our opinion and remanded the matter back to us for reconsideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). Perkins apparently did not seek further review.
Upon reconsideration of the Blakely issue as to Jones following Cunningham, we nevertheless affirm.
Our discussion of the other issues raised by Jones and Perkins is identical to our modified opinion in this case, but we include this discussion here as our prior opinion has been vacated. We have not revisited the issues that were not impacted by our determination as to sentencing.
FACTUAL AND PROCEDURAL SYNOPSIS
On the morning of August 28, 2002, between 10:00 and 11:00 a.m., Donte Terrell and his friend Eric Martinez (aka Eric Saldana) left Terrell’s house in Martinez’s white Mustang and drove to a house on Trafford Street. Jones came out of the house and approached the car. Terrell recognized Jones from junior high school. Martinez and Jones spoke for about 10 or 15 minutes. Then Martinez and Terrell drove to a liquor store, got something to drink and went back to Terrell’s house.
Later Martinez and Terrell returned to the house on Trafford Street. Jones was at the side of the house and motioned for Martinez to come with him. Martinez left the car running and went with Jones. About 10 or 15 minutes later, Jones came back to the side of the house and motioned for Terrell to turn off the ignition and come back with him. Terrell did so. Halfway between the house and the garage in back, Jones pulled a gun on Terrell, directed him through a side door into the garage and said, “You done got caught up in some of Eric’s mess. Tried to get him to take you home, but we still here.” The main door to the garage was closed.
Terrell knew that Martinez was a drug dealer who sold marijuana in large quantities but did not know until “after the fact” that Martinez had gone to the Trafford address for the purpose of a drug sale.
After entering the garage, Terrell saw another man (whom he later identified as Perkins) standing behind Martinez holding a gun. Martinez’s hands were taped behind his back. Perkins looked at Terrell and said, “Somebody’s gonna die in here . . . today.” Perkins then taped Terrell’s hands behind his back and took his money, cigarettes and keys, including the keys to Martinez’s car. He put Terrell on the ground on his stomach and said, “This is gangster.” Terrell said, “I don’t know what this is all about, but you guys don’t have to do this. You can let us go. We won’t say anything.”
Jones had also put Martinez on the ground. Martinez said, “You don’t have to do this. I can give you some money,” but then Terrell heard a “pop.” Jones said he wanted $50,000. When Martinez said he didn’t have that sum, Jones said, “It’s not even about the money.” Perkins told Jones to hurry up, took Martinez’s car keys and left the garage for about three minutes. When he returned, Perkins looked at Terrell and said, “It’s time to die.” He took a belt and put it around Terrell’s neck. Terrell tucked his chin and kept the belt from cutting off his airway. Perkins lifted Terrell off the ground, but the tape around Terrell’s wrists snapped. Jones hit Terrell over the head, and Jones and Perkins retied Terrell’s hands with speaker wire.
With Terrell bound, Jones returned to Martinez and began choking him with a shirt. Jones sat on Martinez’s stomach and then used a 12-inch metal bar to push down on Martinez’s throat until Martinez made a gurgling sound. After that, Jones wrapped an extension cord around Martinez’s neck and pulled on it. By then, Martinez’s eyes were glazed over and he had a blank expression, but another person entered the garage to check Martinez’s pulse and said, “He’s not dead yet. Hurry up. He’s almost dead.” After that person left, Terrell broke the wire on his hands, ran out the door and jumped the back gate. He ran into some Cal Trans workers who called the police for him.
Long Beach Police Officer Daniel Molinar responded to the call after noon. Panicky and concerned for Martinez, Terrell told him what had happened and directed him to the Trafford Street address. Terrell had duct tape and speaker wire around his wrists. Long Beach Homicide Detective Robert Erickson traveled to the address which was the home of Jones and his parents. When Erickson entered the garage, he saw speaker wire, an extension cord, a roll of duct tape and a .38 caliber handgun amidst the exercise equipment. There was blood on a towel and on the carpet and there was a weight bar near the blood. Jones’s fingerprints were found on the side door to the garage and on the clothes dryer.
Carolyn Morris was Jones’s next-door neighbor. She had known Jones for 25 years and had known Perkins (who used the name “Eyeball” and was a friend of her son) for about 5 years. That morning, at about 8:00, Perkins had come to Morris’s house and asked for a ride. When she told him he would have to wait until she finished washing dishes, he left. Later that morning, she saw Perkins riding his bike in the street and asked him to move a car for her which he did. Although she was unsure of the exact time, she also saw Perkins driving the Jones’s blue van at around 10:30 or 11:00 a.m.
Later, she saw a white Mustang pull up in front of the Jones’s driveway with two people inside. She heard a horn honk and then heard Jones say, “C’mon back.” Later still, she saw the same car being backed into the Jones’s driveway. After that, she saw Jones drive off in the Mustang, following immediately behind the Jones’s blue van which had been double-parked in front of the house. Right afterward, the sheriffs pulled up and there was a lot of police activity.
About 45 minutes later, Morris received a call from Perkins who asked “what was going on around there.” She said, “I don’t know.” “It’s a zillion police.” After that, she got a call from Jones who also asked “what was going on over there.” She told Jones, “It’s a lot of cops around your house.” She said she had heard “somebody got killed over there.”
Jones asked if the police had gone into the garage. When Morris said she didn’t know, Jones asked her to “go look and see.” Looking from her back window, she told him the garage was down. Jones said “he didn’t do anything to anybody,” and Morris told him, “you d[o]n’t have anything to worry about if you didn’t do anything.” Jones responded, “I can’t get out of this” and told her “the next time [she] saw him it would be at his funeral because he couldn’t go back to jail again.” Morris continued talking to try to get Jones to get an attorney. She told him, “You can fight it.” After that he hung up.
Later Jones called back and again asked what was going on. Morris said the police were still there. By that time, there was a detective at Morris’s house. She told Jones the detective wanted to speak with him, but Jones hung up.
The next day, a Long Beach detective found the white Mustang in Compton, with Martinez’s body in the trunk. Jones’s bloody palm print was found on the right rear fender near the trunk. An autopsy showed ligature marks on Martinez’s neck and a laceration and bruise on his head. Martinez died of asphyxia.
At about 6:30 p.m. on the day of the murder, Terrell identified Jones in one photographic lineup, but was unable to identify Perkins in another.
On September 5, Terrell was shown the same lineup including Perkins’s photograph he had been shown the week before and was again unable to identify Perkins. He circled two other photographs and said they most resembled the second person involved and made a notation that “if [he] could hear the suspect’s voice in a line-up[,] that would help.”
Two weeks later (on September 19), Terrell identified Perkins in a live lineup at the jail. Then he asked for each participant to say, “Somebody’s gonna die here tonight.” After that, he walked over to a point directly in front of Perkins who was the first person in the line, looked straight at him and asked the deputy to have Perkins say, “This is gangster.” Because the deputies’ lineup rules require that all participants speak the same line rather than any one individual, all recited the line. Terrell did this to let Perkins “know [Terrell] was there and was gonna put him in jail” so Perkins would “pay for what he did.”
Jones and Perkins were charged with the first degree murder of Martinez (count 1), the attempted murder of Terrell (count 2) and the second degree robbery of Terrell (count 3). Each was also charged with possession of a firearm by a felon (count 4 as to Jones and count 5 as to Perkins). As to each defendant, there were special allegations that Martinez’s murder occurred in the course of a robbery and that Jones and Perkins personally used a firearm in connection with the first three counts.
At trial, the People presented evidence of the facts summarized above. Both Jones and Perkins stipulated to prior convictions for purposes of the felon in possession of a firearm counts.
Jones testified in his own defense, claiming he was with Lisa Jones (not related to him) from about 8:30 or 9:00 until almost noon on the morning of the crimes, having breakfast and sex. When he left his house that morning, he said, Carolyn Morris’s son Darryl was at Jones’s house. When Jones returned around noon, he said, he saw a Mustang back into his driveway with the trunk open and saw Darryl Morris “with blood all over him.” He then entered the garage and found the body of his “friend” Martinez who “wasn’t in a good condition.” He had a purple extension cord wrapped around his neck and appeared to be dead. Jones helped put Martinez’s body in the trunk of the Mustang because he “knew if [his] parents found out, especially [his] mother, that she wouldn’t want to go back into her house” and, “dead body in the house, [he] just automatically assumed they would lose the house . . . .” In putting Martinez in the trunk, he got blood on his hand and left the bloody palm print on the car. Jones did not call the police because he did not want to be a “rat” jeopardizing his own and his parents’ safety. He said he had been “decent” friends with Perkins for about eight years.
Lisa Jones testified that Jones was with her on the morning of the crimes as Jones testified. She and Jones had a child together. She lived with another man to whom she was engaged but continued her relationship with Jones, having sex and breakfast with him on a daily basis after her fiancé left for work. She did not come forward with the information that Jones had been with her until January 2004 because she was afraid of losing her family. (She was pregnant at the time of trial in March 2004.)
Perkins presented no defense.
The jury convicted both Jones and Perkins of all counts charged. The jury found true the special allegations that Jones had used a firearm in connection with the attempted murder and robbery of Terrell. The jury also found true the special allegations that Perkins had used a firearm in the murder of Martinez.
The trial court sentenced Jones as follows: 25 years to life for the murder of Martinez (count 1), life imprisonment plus a 10-year firearm enhancement for the attempted murder of Terrell (count 2), the upper term of 5 years plus a 10-year firearm enhancement for the robbery of Terrell (count 3) and the middle term of two years on the felon in possession of a firearm count (count 4). The court ordered the sentences on counts 2 and 3 to run consecutively to the sentence on count 1. The sentence on count 4 was stayed.
The trial court sentenced Perkins to 15 years to life plus a 10-year firearm enhancement on count 1, life imprisonment on count 2, one year on count 3 and eight months on count 5. The sentences on counts 2, 3 and 5 were ordered to run consecutively to the sentence on count 1.
Jones and Perkins appeal.
DISCUSSION
I. Jones Has Failed to Demonstrate Prejudicial Error in the Trial Court’s Denial of his Motions for Self-Representation at the Commencement of Trial.
According to Jones, his motions for self-representation (Faretta v. California (1975) 422 U.S. 806), were timely; therefore, he had a right to have them granted. Alternatively, he says, even if they were not timely, the trial court abused its discretion in denying them. We disagree.
Trial Court Proceedings.
At 11:00 a.m. on March 9, 2004, with the jury panel waiting outside the courtroom for the start of jury selection, Jones’s attorney (Laronda McCoy) informed the trial court that Jones wanted to bring a “motion . . . to go pro per.” The following exchange occurred between the trial court and Jones:
“[The Court:] Miss McCoy said you had a motion. What is that, Mr. Jones?
“Defendant Jones: Yes. I’d like to exercise my right and go pro per.
“The Court: Are you ready to proceed to trial today?
“Defendant Jones: No, I’m not, Your Honor.
“The Court: Do you need a continuance in order to exercise your right?
“Defendant Jones: Yes, Ma’am.
“The Court: Your request to go pro per is denied. It’s not timely. We’re going to trial.”
When Jones protested that he was “not ready to go to trial,” the trial court responded, “Your attorney is ready [s]o you’re going to trial.” Jury selection commenced.
At 1:30 that same day, with jury selection still underway, Jones asked to address the court “about his pro per status.” When Jones said there was “a conflict of interest between me and my lawyer,” the trial court asked the prosecutor to step outside. “This sounds more like a Marsden, and the record will be sealed.”
People v. Marsden (1970) 2 Cal.3d 118. (Jones never requested new counsel however.)
Asked to be more specific, Jones said the case could have been dismissed at the outset because there was a videotape that would have exonerated him, he had asked for a live line-up but never got it and his attorney did not agree with him about certain aspects of his case he felt to be important. Indicating that the decision to allow Jones to represent himself was discretionary, the trial court pointed to the lateness of Jones’s request. Jones said the reason for his late request was that McCoy had only come to see him two or three times although she had been his attorney for 17 months.
McCoy responded that she had seen Jones at least five or six times and had also spoken with him on the phone and in court. She said she attempted to obtain the videotape Jones identified as soon as she was assigned the case but the store owner had already destroyed it. Regarding the live line-up, she said, Terrell had already identified Jones in a six-pack and had said he had gone to school with Jones. Consequently, she did not believe a live line-up was in Jones’s best interest. With respect to the disagreement Jones had raised, she said the focus of his case was his alibi, not minor points such as whether the person involved had motioned for Terrell to come to the back of the house or called out to him, but, in any case, she would still be cross-examining on those points.
Jones responded that if the person motioned Terrell to come back as Terrell had previously testified, how could his neighbor (Morris) have heard his voice? Terrell had also said the person was already standing on the porch when he and Martinez pulled up, but Morris had said that she heard a horn honk which showed she was lying. He added that he had not gone to school with Terrell.
The trial court found that McCoy had seen and spoken with Jones as she had said and rejected Jones’s claimed conflict of interest in light of his alibi defense and the fact that McCoy would be cross-examining on the discrepancies Jones had raised in any event. The court admonished Jones: “Do not bring up pro per status again. I have denied it. I’m not changing my ruling. It’s discretionary, and I find this is purely dilatory to try to prevent the trial from going forward, since it’s been pending since the year 2002.”
Applicable Law.
As our Supreme Court has explained, “A defendant has a federal constitutional right to represent himself if he voluntarily and intelligently elects to do so. [Citation.] In order to invoke an unconditional right of self-representation, the defendant must assert the right ‘within a reasonable time prior to the commencement of trial.’ [Citation.] A motion made after this period is addressed to the sound discretion of the trial court.” (People v. Burton (1989) 48 Cal.3d 843, 852.)
“The ‘reasonable time’ requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. ‘For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation.’ [Citation.] We directed trial courts to consider the ‘quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.’ [Citations.]” (People v. Burton, supra, 48 Cal.3d at pp. 852-853.)
Jones complains that the trial court’s inquiry in this regard was inadequate, but the inquiry reflects the trial court’s awareness of the facts established by the record. McCoy had been representing Jones from the time of his arrest for a period of 17 months and had appeared with him in court at least 10 times before. Despite numerous opportunities to raise the issue, however, Jones did not seek to represent himself until the commencement of jury selection on the date set for trial. Further, the matter had been continued numerous times at Jones’s request, and Jones said he required yet another continuance in order to prepare to represent himself. Given that the videotape he wanted had been destroyed, Terrell had identified Jones in a six-pack immediately after the crimes and McCoy was going to cross-examine Morris on the points Jones raised, the “conflicts” of which Jones complained did not withstand scrutiny. On this record, the motion was untimely, and we find no abuse of discretion in the trial court’s denial of Jones’s request. (People v. Burton, supra, 48 Cal.3d at pp. 853-854, and citations therein; see also People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398 [“When a trial court exercises its discretion to deny a motion for self-representation on the grounds it is untimely, a reviewing court must give ‘considerable weight’ to the court’s exercise of discretion and must examine the total circumstances confronting the court when the decision is made”].)
Assuming arguendo the court’s inquiry at 11:00 a.m. was inadequate for failure to establish the reason for Jones’s request, given that the court made the further inquiry described in the text after just one hour of jury selection, any such error viewed in light of the subsequent proceedings was harmless. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1048-1052.)
According to the record, Jones was arrested in November 2002, and Laronda McCoy began representing him at that time. Jones appeared with McCoy on June 11, 2003, for the preliminary hearing, and on June 25, for arraignment on the second amended complaint, with a trial setting conference scheduled for July 24. He was present in court with McCoy again on that date, but because Perkins failed to appear as a “miss-out,” the date was continued to August 27. When Jones appeared with McCoy on August 27, the matter was continued to October 7 at Jones’s request. On October 7, Jones again appeared with McCoy; again, on his motion, the matter was continued to November 6. When he appeared with McCoy on November 6, the matter was again continued on his motion to December 16.
As the People note, Jones’s argument that federal law should yield a different result has already been rejected by our Supreme Court. (People v. Burton, supra, 48 Cal.3d at p. 854 [“To the extent that there is a difference between the federal rule and the California rule, we find the federal rule too rigid in circumscribing the discretion of the trial court and adhere to the California rule”]; and see People v. Rudd (1998) 63 Cal.App.4th 620, 626-628 [“the Ninth Circuit Faretta timeliness test in terms of the unqualified right to proceed pro se has undergone change with the adoption of the Antiterrorism and Effective Death Penalty Act”].)
II. The Trial Court Did Not Err in Denying Jones’s Motion for Self-Representation at the Time of the Sentencing Hearing.
The jury returned the verdicts in this case on March 17, 2004. At that time, the trial court set the date of April 1 for the priors trial and for sentencing. On April 1, the trial court first addressed sentencing for Perkins. Turning to Jones, the trial court then recounted the jury’s findings as to him. After the prosecutor informed the court that he would not be proving up Jones’s prior convictions, the trial court asked Jones’s counsel if she wished to be heard, and, in opposition to the prosecutor’s sentencing memorandum filed for the hearing, she argued various grounds for sentencing Jones to concurrent terms on the subordinate counts, staying two of them under section 654 and imposing the low term on the robbery count. The prosecutor responded with further argument in favor of consecutive terms and the high term on the robbery count.
Then the trial court began to sentence Jones: “This was one of the most vicious murders I have ever heard. It was directly committed by Defendant Jones; that is, he was the main perpetrator.” At this point, Jones interrupted, asking to address the Court. The exchange was as follows.
“The Court: You want to say something? Of course you can.
“Defendant Jones: Your Honor, I have before you a [section] 1050 motion to continue this.
The record contains no motions prepared by Jones.
“The Court: You’re not representing yourself at this point.
“Defendant Jones: I would like to go pro per.
“The Court: No. You cannot go pro per at this time. Is there anything else you wish to say?
“Defendant Jones: I would like to present a new trial motion.
“The Court: You’re not pro per. You cannot do any of those things.
“Defendant Jones: For the record, I would like these issues heard in order to preserve them for my appeal.
“The Court: No. You’re not representing yourself. Is that all? Is that what you wish to talk about, because if it is, you’re not going to talk about that.
“Defendant Jones: I cannot present my new trial motion?
“The Court: No, absolutely not.”
After that, the court continued with its description of Jones’s role in the crimes and sentenced him.
According to Jones, the case of Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 699, a case he calls the “mirror image of this case,” demonstrates the trial court’s error. We disagree.
In the Menefield case, in contrast to this case, the defendant had represented himself at trial, but then requested the assistance of counsel to prepare a motion for new trial. “Because the right to counsel is so central to our concepts of fair adjudication, we are reluctant to deny the practical fulfillment of the right—even once waived—absent a compelling reason that will survive constitutional scrutiny.” (Menefield v. Borg, supra, 881 F.2d at p. 700, italics added; see also ibid. [“It is not surprising that a criminal defendant, having decided to represent himself and then having suffered a defeat at trial, would realize that he would be better served during the remainder of the case by the assistance of counsel”].)
Because this case involves the reverse circumstance—a defendant represented by counsel at trial who sought to represent himself at the time of sentencing, Jones cannot invoke the same constitutional rationale. Once trial has commenced, the right to self-representation is no longer based on the Constitution; rather, a motion for self-representation at that time is addressed to the trial court’s discretion. (People v. Rivers, supra, 20 Cal.App.4th at p. 1050; People v. Barnett (1998) 17 Cal.4th 1044, 1104.)
His reliance on People v. Ngaue (1991) 229 Cal.App.3d 1115 in his reply brief is misplaced for the same reason.
Here, the record establishes that the trial court had already made a determination that Jones had sought to represent himself for the purpose of delay. When Jones interrupted the commencement of voir dire to seek a continuance and represent himself, after numerous opportunities to raise the issue before then, the court told Jones: “Do not bring up pro per status again. I have denied it. I’m not changing my ruling. It’s discretionary, and I find this is purely dilatory to try to prevent the trial from going forward, since it’s been pending since the year 2002.”
Similarly, Jones did not raise the issue again until after both his attorney and the prosecutor had made their sentencing arguments and the trial court began to impose sentence, clearly indicating her view that the severity of the crimes warranted an appropriate sentence. Jones again requested a continuance. To the extent Jones argues for the “possibility—nay, the near certainty, given what [the trial court] heard pretrial--that . . . Jones’[s] request to move for a new trial pro se arose from disagreements with [defense counsel],” it is unsupported by the record. Jones never mentioned any interest in having a new lawyer appointed; he asked only for a continuance to represent himself. Indeed, as addressed in section I, ante, although the court conducted a Marsden hearing at that time, Jones never requested another attorney at the commencement of trial either. “A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] to suggest substitution of counsel as an alternative. [Citation.]” (People v. Crandell (1988) 46 Cal.3d 833, 854-855.) We find no abuse of discretion.
III. The Trial Court’s Exclusion of Jones’s Proposed Testimony Regarding Darryl Morris Was Harmless.
Jones testified in his own defense that he was approached by his neighbor Darryl Morris on the morning of the crimes. When defense counsel asked what Darryl Morris had said to him, the prosecutor objected and defense counsel made an offer of proof that Darryl Morris asked Jones “if he could use his garage for the purpose of seeing some girls” and “Jones allowed him to do that.” She argued Jones would testify that he left the location and found Martinez on his return, showing Jones allowed another person access to his garage. At this point, the trial court found the evidence of mere “opportunity” insufficient evidence of third party culpability.
Later Jones’s attorney argued, “Mr. Jones left the residence. Mr. Jones returned. Mr. Jones finds Mr. Martinez in his garage. Mr. Morris then asks Mr. Jones to assist him in removing this body.” The court stood by its determination that the evidence of these two statements Jones alleged Darryl Morris to have made was inadmissible.
Jones, joined by Perkins, argues that he was prejudiced by the trial court’s exclusion of this testimony because it deprived him of a defense and, even if he was not completely deprived of a defense, the trial court’s ruling made the testimony presented “circumstantial to the point of being trivial.” We disagree.
First, as summarized above, Jones did present testimony that when he left his house on the morning of the crimes, Darryl Morris was at his house. When he returned around noon, he said, he saw a Mustang back into his driveway with the trunk open and saw Darryl Morris “with blood all over him.” He went into the garage and saw Martinez who appeared to be dead, with a purple extension cord wrapped around his neck. Jones then helped put Martinez’s body in the trunk of the Mustang. Thus, “the trial court's ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense. Accordingly, the proper standard of review is that enunciated in People v. Watson [(1956)] 46 Cal.2d 818, 836.” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
Applying the harmless error standard, we find that Jones was not prejudiced by the exclusion of the further evidence of Darryl Morris’s alleged statements. From the evidence that was admitted, the jury knew that Jones was testifying that it was Morris (and not him) who had been involved in the murders; he (Jones) had only left a bloody handprint on the Mustang because he had helped place Martinez’s body in the trunk after he was already dead. Both he and Lisa Jones testified that he was not present at the time the crimes were committed. However, in addition to Carolyn Morris who testified to Jones’s presence at the time of the crimes and said he made incriminating statements to her in calls right after the crimes, the surviving victim (Donte Terrell) identified Jones immediately after the crimes as the one who had ordered him into the garage at gun point and choked Martinez until he died. Unlike Carolyn Morris, Terrell had no apparent reason to lie to protect Darryl Morris as Jones suggested. The jury plainly credited Terrell and rejected Jones’s alibi. Any error in excluding the statements Darryl Morris allegedly made to Jones was harmless. (People v. Bradford, supra, 15 Cal.4th at p. 1325.)
IV. The Trial Court Properly Denied Perkins’s Motion to Suppress Terrell’s Identification.
On the day of the murder and attempted murder, police showed Terrell two six-pack photo lineups, one including Jones’s picture and one including Perkins’s. Although he immediately identified Jones in the first lineup, Terrell was unable to identify Perkins in the second. Eight days later, Terrell was shown the same lineup with Perkins’s picture but again failed to identify him. This time, he circled two photographs and noted: “#1 and #2 resemble suspect #2, based on skin tone and eyes. But if I could hear the suspect’s voice in a line-up, that would help.”
Two weeks after that, Terrell identified Perkins in a live line-up. He later identified Perkins again in court.
At the close of the prosecution’s case, Perkins asked the court to strike the testimony and evidence of the lineup as unduly suggestive because only one person in the six-packs was actually present in the live lineup. The trial court reviewed the lineups and found them to be “very fair” and “not . . . unduly suggestive.” “In fact, I looked at [#1 and #2 in the photo lineup] that Terrell identified, and especially [#] 2 looks very much like Mr. Perkins, [#] 6.” Noting further that Perkins did not stand out in any way from anyone else in the live lineup, the trial court concluded: “I do tend to think that the witness, and I did rely on visual identifications, because based on his testimony about what happened at the live lineup, it sounds as if he identified Defendant Perkins first, and then wanted to confirm it or, as he testified to, wanted to send a message to him. . . . [I]t was clear that he identified Defendant Perkins based on the visual look of him and the live lineup and nothing else, and not even the oral request that was made was anything other than what he said it was.”
A pretrial identification procedure only violates due process if it is “‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Citations.] ‘Whether due process has been violated depends on “the totality of the circumstances” surrounding the confrontation. [Citation.]’” (People v. Sanders (1990) 51 Cal.3d 471, 508.) The defendant bears the burden of proving “unfairness as a demonstrable reality, not just speculation.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
The fact that the defendant is the only person common to both a photographic and live lineup does “not per se violate his due process rights.” (People v. DeSantis, supra, 2 Cal.4th at p. 1224.) Even if the defendant is the only person common to a photo array and a live lineup, “such a procedure would not be violative of due process absent some element of suggestiveness in the photographs or their presentation or in the lineup or its presentation.” (People v. Hernandez (1970) 11 Cal.App.3d 481, 488; see also People v. Spencer (1972) 22 Cal.App.3d 786, 795 [“Appellant contends that the lineup was tainted by the prior display of the photographs by reason of the fact that he was the only person depicted in the photographs who also appeared in the lineup. This contention finds no support either in authority or in reason”].)
From the evidence in this case, it appears that Terrell was not influenced by the photo lineup at all. He was unable to identify Perkins in it, but circled the pictures of two other men, noting their similarities to the second person involved in the crimes. When he appeared for the live lineup, however, he was able to unequivocally identify Perkins. Having viewed the photographic lineup as well as the photographs taken of the live lineup, we find the trial court’s determination well supported. In fact, as the trial court (which also had the opportunity to compare Perkins’s appearance in court) observed, the photos that Terrell circled in the photo lineup (#1 and #2) appear very similar to the photograph of Perkins from the live lineup (arguably more so than the actual photograph of Perkins at #6 in the photo lineup). Perkins has not met his burden of demonstrating “unfairness as a demonstrable reality, not just speculation.” (People v. DeSantis, supra, 2 Cal.4th at p. 1222.)
V. Substantial Evidence Supports the Trial Court’s Decision to Impose Additional Punishment for Perkins’s Conviction for Possession of a Firearm by a Felon.
Perkins was convicted of being a felon in possession of a firearm (count 5) and was sentenced to a consecutive term of one-third the midterm—eight months. According to Perkins, the trial court was required under Penal Code section 654 to stay this sentence because he was punished for the same conduct by way of the ten-year personal use enhancement in connection with Martinez’s murder (count one). (All further statutory references are to the Penal Code.) We disagree.
To the extent the People argue that People v. Hutchins (2001) 90 Cal.App.4th 1308 required imposition of the felon-in-possession sentence notwithstanding section 654, we note that in Hutchins, the issue was whether the defendant was properly sentenced for second degree murder as well as the additional term mandated by subdivision (d) of section 12022.53 for the personal and intentional discharge of a firearm causing the death of the victim of that murder. Under those circumstances, the court observed: “The express language of the statute indicates the Legislature’s intent that section 654 not apply to suspend or stay execution or imposition of enhanced penalties.” (People v. Hutchins, supra, 90 Cal.App.4th at p. 1313 and fn. 5 [“‘Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section.’ (§ 12022.53, subd. (g).) ”].)
Section 654 provides in 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“Section 654 therefore precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor. If all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. However, if the defendant harbored 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. Jones (2002) 103 Cal.App.4th 1139, 1143, internal citations and quotation marks omitted.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.) We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313.)
“‘Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.’” (People v. Bradford (1976) 17 Cal.3d 8, 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.)
“It is clear that multiple punishment is improper where the evidence ‘demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense . . . .’” (People v. Jones, supra, 103 Cal.App.4th 1139, 1144, quoting People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412; and see People v. Bradford, supra, 17 Cal.3d at pp. 22-23 [defendant took officer’s gun and used it to shoot at officer and motorist so possession was neither antecedent to nor separate from his use of the gun].)
However, unlawful possession of a firearm by a felon “is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.” (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1414; see also People v. Hudgins (1967) 252 Cal.App.2d 174, 177-178, 184-185.)
In People v. Jones, supra, 103 Cal.App.4th 1139, 1145, the court held section 654 inapplicable when the evidence showed the defendant arrived at the scene of the crime already in possession of the firearm and then shot into an inhabited dwelling. “The record supports the trial court’s implied findings, because the evidence was sufficient to allow the inference that Jones’s possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling.” (Id. at p. 1147.)
Similarly, in this case, substantial evidence supports the trial court’s implied finding that Perkins’s possession of a firearm was an act separate and apart from the use he made of it in connection with Martinez’s murder. Not only did he hold a gun to Martinez’s back to hold him prisoner while Jones directed Terrell back to the garage, also at gunpoint, but the evidence also supports the inference he armed himself before Martinez and Terrell arrived on the scene, perhaps for protection in connection with the large amount of drugs Martinez was apparently supposed to deliver or of any money to be exchanged, for protection when he left the garage with Martinez’s keys to get the Mustang or for protection in general.
Under the applicable case law, Perkins’s act of arming himself before Martinez’s murder was sufficiently separate and apart from the use he made of the gun in connection with the murder to warrant the trial court’s imposition of the sentence in this case.
VI. The Trial Court’s Decision to Stay Jones’s Sentence for Possession of a Firearm by a Felon Is Supported by Substantial Evidence.
The jury found that Jones had personally used a firearm during the attempted murder and second degree robbery of Terrell (counts 2 and 3), and the trial court imposed consecutive 10-year prison terms on these enhancements. The jury also convicted Jones of being a felon in possession of a firearm (count 4) for which the trial court imposed the middle term of two years but stayed it pursuant to section 654. The Attorney General says the trial court erred in staying Jones’s sentence on count 4 and we must order it lifted. We disagree.
As summarized above, the question whether the defendant held multiple criminal objectives is one of fact for the trial court, and its finding will be upheld on appeal if there is any substantial evidence to support it. (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1408; People v. Jones, supra, 103 Cal.App.4th at p. 1143; People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) The trial court has “broad latitude” in making its determination. (People v. Jones, supra, 103 Cal.App.4th at p. 1043.) The People included personal use allegations as to both Jones and Perkins in connection with counts 1 through 3. However, the jury found the allegations true as to Perkins only on count 1 (Martinez’s murder) and as to Jones on counts 2 and 3 (the robbery and attempted murder of Terrell). Notwithstanding our conclusion that the trial court’s determination as to Perkins was supported by substantial evidence, the record does not establish as a matter of law that Jones necessarily had an intent and objective separate and apart from the commission of these crimes mandating the imposition of sentence on the felon-in-possession count.
The prosecutor conceded in his sentencing memorandum that “no consecutive sentence may be imposed for the [felon in possession counts]” because they “arise out of the same transaction” and are “therefore subject to [section] 654.” Jones’s and Perkins’s sentencing hearings were held on different dates.
VII. The Trial Court’s Sentencing Determinations Did Not Violate Blakely v. Washington (2004) 542 U.S. 296, or Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856].
According to Jones in his initial appeal (joined in part by Perkins), under Blakely v. Washington, supra, 542 U.S. 296, the trial court erred in sentencing separately on counts 2 and 3 despite section 654, imposing the upper term on count 3 and in imposing consecutive sentences on counts 1, 2 and 3, because none of these determinations was supported by jury findings based on proof beyond a reasonable doubt. After initial briefing was completed in this case, our Supreme Court issued its decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). In light of the Black I court’s conclusion that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial,” (People v. Black, supra, 35 Cal.4th at p. 1244), we originally rejected Jones’s argument in our prior opinion (filed September 26, 2005, and modified October 11, 2005). In January 2006, our Supreme Court denied Jones’s subsequent petition for review, and he filed a petition for writ of certiorari with the United States Supreme Court.
However, in Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court disagreed with the decision in Black I and held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings that subject a defendant to the possibility of an upper term sentence.
The United States Supreme Court subsequently granted Jones’s petition for certiorari, vacated the judgment and remanded the cause to this court for further consideration in light of Cunningham. We then invited the parties to submit supplemental briefing regarding the application of Cunningham to this case; both Jones and the Attorney General did so. Thereafter, the California Supreme Court addressed the Cunningham decision with a second opinion in People v. Black (2007) 41 Cal.4th 799 (Black II). In response to our July 20, 2007, order allowing further supplemental briefing after issuance of the decisions in Black II and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), we received additional letter briefs from Jones and the Attorney General.
At the sentencing hearing in this case, defense counsel argued that Jones did not have a “significant criminal history,” citing three prior misdemeanor convictions but acknowledged Jones’s prior 2001 felony conviction for felon in possession of a firearm. For purposes of the felon in possession of a firearm count in this case, Jones had admitted a prior October 30, 2001, felony conviction for the same offense. The prosecutor argued for imposition of the high term on the robbery term because Jones was on parole at the time of these crimes, noting that the “documentation” established Jones had only been out of state prison custody for “a couple of months” before committing the August 2002 crimes for which he was being sentenced. The trial court imposed the upper term on the robbery count, finding Jones’s “vicious, callous behavior [and] the fact that he was on parole when he committed these heinous crimes, warrants in this court’s mind the high term of five years in prison on count three.”
Pursuant to rule 4.421(b)(4) of the California Rules of Court, the fact that Jones was on parole at the time he committed these crimes was a proper basis for the trial court’s imposition of an upper term sentence. “The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black II, supra, 41 Cal.4th at p. 818, citing Cunningham, supra, __ U.S. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); and Almendarez-Torres v. United States (1998) 523 U.S. 224.) In Black II, supra, 41 Cal.4th at page 819, the California Supreme Court construed this prior conviction exception broadly to include “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.”
Although the question of whether a defendant’s parole status falls within the prior conviction exception was not directly presented in Black II, the California Supreme Court’s construction of the prior conviction exception leads us to conclude that our Supreme Court will consider a defendant’s status on parole to be a “fact that increases the penalty for a crime beyond the prescribed statutory maximum” (Apprendi, supra, 530 U.S. at p. 490) but that need not be submitted to a jury. (See also People v. Yim (2007) 152 Cal.App.4th 366, 371.)
Also in Black II, the California Supreme Court ruled that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, [ supra, 542 U.S. 296,] the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, 41 Cal.4th at p. 813.) Accordingly, the Supreme Court held, it does not violate the Sixth Amendment for a trial judge to engage in additional fact finding with respect to other aggravating factors once a single constitutionally permissible aggravating factor has been identified. (Id. at p. 816 [“imposition of the upper term does not infringe upon the defendant’s constitutional right to a jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions”].) A review of the record confirms that Jones was on parole at the time he committed these crimes. Accordingly, under Black II, supra, 41 Cal.4th 799, we conclude that the trial court’s imposition of Jones’s upper term sentence was authorized in light of his parole status at the time of his new offenses, and that in light of the constitutionally proper aggravating factor, the court’s reliance on another aggravating factor that was not submitted to the jury nor admitted by Jones did not violate his constitutional right to a jury trial.
In any event, as to the second factor noted by the trial court—Jones’s “vicious, callous behavior” in connection with these “heinous crimes,” we conclude that the jury would necessarily have found, beyond a reasonable doubt, the existence of this aggravating factor for the reasons recounted by the trial court. (Cal. Rules of Court, rule 4.421(a)(1).) The trial court emphasized, in its extensive experience: “This was one of the most vicious murders I have ever heard. It was directly committed by Defendant Jones; that is, he was the main perpetrator.” (Italics added.) “He lured the victim into the garage. He bound him. He beat and choked him. He choked him with a bar bell while the victim was screaming for his life.” He had assistance from Perkins. He robbed the second victim. “Then they took the bloody body and put it into a trunk of a car and disposed of it. [¶] It was a vicious, brutal cold-blooded murder. The victim never had a chance in this case. The victim was not armed. The victim hadn’t done anything. He had been lured there and brought into the garage and unmercifully beaten and strangled to death by Defendant Jones . . . . [¶] It was a grizzly, horrible murder, and I believe the sentencing in this case will be perfectly just and appropriate to the actions of the defendant.” On this record, any Cunningham/Blakely error as to this aggravating factor was harmless. (Sandoval, supra, 41 Cal.4th at p. 839.)
As for Jones’s argument that imposition of consecutive sentences on counts 1, 2 and 3 violated Cunningham, Cunningham did not address the issues of consecutive sentencing (or indeterminate sentencing under California law or application of section 654). However, the California Supreme Court revisited this issue in Black II and reaffirmed that the imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (Black II, supra, 41 Cal.4th at p. 823.) Accordingly, we find no error in the trial court’s decision to impose consecutive sentencing in this case.
Moreover, where, as here, a defendant is sentenced consecutively to two indeterminate terms (see § 1168, subd. (b)), determinate sentencing rules do not apply, and the trial court has “full discretion” to impose consecutive sentences under the indeterminate sentencing law. (People v. Murray (1990) 225 Cal.App.3d 734, 750, citing People v. Arviso (1988) 201 Cal.App.3d 1055, 1058 [“a trial court may impose consecutive indeterminate terms without any statement of reasons whatsoever”].) In Blakely, supra, 542 U.S. at page 309, original italics, the Supreme Court observed: “Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence -- and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.”
In this case, the jury reached separate verdicts as to counts 1, 2 and 3. Because the trial court had the discretion under sections 669 and 1168 to sentence Jones to consecutive sentences based on the facts encompassed by the verdict alone without making any additional findings of fact, the statutory maximum he faced for purposes of Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], were consecutive terms on counts 1, 2 and 3. Consequently, Jones has failed to demonstrate error in this regard.
Similarly, as nothing in Blakely or Booker undermines the conclusions reached in People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022, and People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271, regarding the trial court’s decision whether to stay sentences under section 654, Jones’s claim in this regard must also fail. The United States Supreme Court’s decision in Cunningham did not address either the decision to sentence consecutively or concurrently or whether to stay sentences under section 654; therefore, Cunningham does not entitle Jones to relief on either of these grounds.
DISPOSITION
The judgment as to Jones is affirmed. The judgment as to Perkins is affirmed.
We concur: PERLUSS, P.J., ZELON, J.
On December 16, on Jones’s motion, with McCoy representing Jones, the matter was trailed to December 31 for jury trial. On December 31, with both Jones and McCoy present, Jones moved for a continuance. Trial was continued to February 2, 2004. On February 2, Jones appeared with McCoy and, again on Jones’s motion, trial was continued to March 2. On March 2, Jones was present (in lock up) and represented by McCoy. Trial was trailed to March 9—the date on which Jones first asked to represent himself.
The issue here is not whether Perkins was properly sentenced for both the personal use enhancement and the underlying murder but rather whether the further imposition of sentence for the felon in possession of a firearm conviction was proper—a question that neither the Hutchins case nor the language of section 12021 (defining the offense of felon in possession of a firearm) addresses.