Opinion
B191254 B192451 B193068
5-15-2008
THE PEOPLE, Plaintiff and Respondent, v. TRIYON JONES, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY J. ZELAYA, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ANGELO ROBERTS, Defendant and Appellant.
Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant Triyon Jones. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Anthony J. Zelaya. J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant Angelo Roberts. Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Triyon Jones, Anthony Junnie Zelaya, and Angelo Jeffrey Roberts (collectively, appellants) appeal from their respective judgments entered following a jury trial. Appellants were convicted of murder (Pen. Code §187, subd. (a); count 1); attempted carjacking (§§664/215, subd. (a); count 2); attempted second degree robbery (§§664/211; count 3); unlawful taking of vehicle (Veh. Code §10851, subd. (a); counts 4, 8, 9); and second degree robbery (§211; counts 5, 6). In addition, Zelaya was convicted of cocaine possession (Health & Saf. Code §11350, subd. (a); count 12), and Roberts was convicted of being a felon in possession of a firearm (§12021, subd. (a)(1); count 7); willfully evading an officer (Veh. Code §2800.2, subd. (a)(1); count 10); and possession for sale of cocaine base (Health & Saf. Code §11351.5; count 11).
Roberts and Jones were tried before the same jury. Zelaya was tried before a different jury. The trial proceeded simultaneously against all three before the separate juries until all evidence was presented except for Zelayas statements to police, at which point the trial was bifurcated and Zelayas trial was severed from that of Jones and Roberts.
All further section references are to the Penal Code unless otherwise indicated.
The jury found true allegations that appellants acted for the benefit of a criminal street gang (§186.22, subd. (b)(1)(a); counts 1-6 [Jones & Roberts], 3-6 [Zelaya], 8-9 [Jones & Zelaya], 8-11 [Roberts]); a perpetrator personally used a firearm (personal use) (§12022.53, subd. (b); count 6 [Roberts); a principal personally used a firearm (principal use) (§12022.53, subds. (b) & (e)(1); counts 1-3, 5-6 [appellants]); a principal personally and intentionally discharged a firearm (§12022.53, subds. (c) & (e)(1); counts 1-3 [appellants]); and a principal personally used a firearm causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1); counts 1-3 [appellants]).
Jones was sentenced to prison on count 1 for the indeterminate term of 25 years to life, plus 25 years to life for the firearm enhancement (§12022.53, subds. (d) & (e)(1), and for a total determinate term of 21 years and four months, consisting on count 6 of the 5 year upper term, plus 10 years for the firearm enhancement (§12022.53, subd. (b)); on each of counts 4, 8, and 9, of 8 months, or one-third the 2 year middle term, and on count 5 of 1 year, or one-third the 3 year middle term, plus 3 years and 4 months, or one-third the 10 year firearm enhancement (§12022.53, subd. (b)).
Zelaya was sentenced to prison on count 1 for the indeterminate term of 25 years to life, and to a total determinate term of 22 years, consisting on count 6 of the 5 year upper term, plus the 10 year firearm enhancement (§12022.53, subds. (b) & (e)(1); on count 5 of one year, or one-third the 3 year middle term, plus 3 years and four months, or one third the 10 year firearm enhancement (§12022.53, subds. (b) & (e)(1)); and on each of counts 4, 8, 9, and 12, of 8 months, or one-third the 2 year middle term.
Roberts was sentenced to prison on count 1 to the indeterminate term of 25 years to life, plus 25 years to life for the firearm enhancement (§12022.53, subds. (d) & (e)(1) and to a total determinate term of 23 years and four months, consisting on count 6 of the 5 year upper term, plus the 10 year firearm enhancement (§12022.53, subds. (b) & (e)(1); on count 5 of one year, or one third the 3 year middle term, plus 3 years and 4 months, or one third the 10 year firearm enhancement (§12022.53, subds. (b) & (e)(1)); on count 11 of 16 months, or one third the 4 year middle term; and on each of counts 4, 8, 9, and 10 of 8 months, or one-third the 2 year middle term.
The trial court also imposed a single $20 court security fee (§1465.8, subd. (a)(1)) as to each appellant.
Appellants contend the giving of CALCRIM No. 220 on reasonable doubt deprived them of due process (U.S. Const., 14th Amend.) by foreclosing the jury from considering the lack of evidence, especially when considered together with CALCRIM 222 according to Jones and Roberts. Zelaya and Roberts contend the failure to define "abiding conviction" in the reasonable doubt instruction constituted reversible per se error. Roberts and Zelaya further contend they were deprived of due process and their rights to a fair trial and to confront witnesses, because CALCRIM No. 226 impermissibly invited jurors to consider matters outside the record. Jones and Roberts contend the giving of the felony-murder instruction constituted prejudicial error, because there was insufficient evidence of attempted carjacking and attempted robbery, the underlying felonies.
Roberts and Jones contend the evidence was insufficient to support their convictions for felony-murder (count 1), attempted carjacking (count 2), and attempted robbery (count 3). Roberts and Zelaya contend their convictions for unlawful taking of a vehicle (count 8) are unsupported by the evidence. Roberts further attacks the sufficiency of the evidence to support his conviction for the identical crime in count 4 while Zelaya makes the same claim as to his conviction in count 9.
Roberts contends the trial court erred in denying his new trial motion that was based on newly discovered exonerating evidence.
Appellants challenge their sentences on count 6 on the ground the five year upper term was based on facts not found true beyond reasonable doubt by the jury as required under Cunningham v. California (2007) 549 U.S. 270 .
Roberts and Zelaya contend that, as to count 1, the trial court should have stricken the additional lesser firearm enhancements (§12022.53, subds. (b)&(c)), and thus, the court erred in staying these enhancements. Roberts makes this contention also as to count 6. Respondent concedes error as to Zelaya, because the jury found not true the count 1 gang enhancement (§186.22, subd. (b)(1)(a)), an element of these firearm enhancements against a principal such as Zelaya (§12022.53, subd. (e)(1)).
Roberts and Zelaya also contend imposition of a $20 court security fee (§1465.8, subd. (a)(1)) violated the statutory directive of section 3 that no provisions of the Penal Code are retroactive unless expressly so declared, and section 1465.8 does not so declare. Zelaya further contends this fee also violated the proscription against ex post facto laws under the United States and California Constitutions (U.S. Const., art. I, §9; Cal. Const., art. I, §9). Respondent contends section 1465.8 required the trial court to impose this fee on each of appellants convictions, not simply once.
In his opening brief, Roberts states he joins in the arguments made by Jones and Zelaya. However, on this issue, Roberts declined to join Zelaya by expressly stating Roberts "recognizes that section 1465.8 has been upheld against a challenge that it violates the prohibition against ex post facto legislation when applied to conduct preceding its effective date. (People v. Wallace (2004) 120 Cal.App.4th 867, 879.)" (Italics original.)
Roberts and Zelaya contend the cumulative effect of the assigned errors amounts to denial of their guarantee of due process and thereby warrants reversal of their respective judgments.
By letter, we invited further briefing by the parties on these issues regarding the propriety of the trial courts staying of certain punishment: (1) Did the court err in staying imposition of sentence pursuant to section 654 on counts 2 and 3 as to appellants and on count 7 as to Roberts instead of imposing an appropriate sentence on each count and then staying execution of the sentences; (2) Did the trial court err in staying the punishment for the gang enhancement on counts 4, 8, and 9 as to appellants and on counts 10 and 11 as to Roberts; (3) If so, is the appropriate disposition to remand these matters to the trial court with directions in each instance to exercise its discretion either to impose the 2, 3, or 4 year enhancement or strike the additional punishment in compliance with subdivision (g) of section 186.22; and (4) Did the court err as to Roberts and Jones by simply staying the lesser firearm enhancements (§12022.53, subds. (b),(c)&(e)(1)) instead of first imposing these enhancements and then staying their execution.
We invited briefing also on the issues of (5) whether the trial court erred in sentencing Roberts on Count 6 by staying the punishment "under 12022.53(b), as to the fact [Roberts] was personally armed [sic]"; imposing "sentence under the principal armed [sic] allegations [sic] under 12022.53(d) [sic] and (e)(1)"; and "staying the gang allegation [sic]"; and (6) If so, whether the appropriate disposition is to remand this matter to the trial court with directions to impose the 10 year personal use firearm enhancement and the 10 year principal use firearm enhancement; stay execution of the personal use firearm enhancement; and exercise its discretion either to impose the 10 year violent felony gang enhancement or strike the additional punishment in compliance with subdivision (g) of section 186.22.
Additionally, the parties were invited to brief these issues regarding the $20 court security fee: (7) Did the trial court commit unauthorized sentencing error by imposing a single $20 court security fee as to each appellant; (8) If so, was the court required to impose this fee as to each conviction, including one for which punishment was stayed under section 654; (9) What is the total amount of the fees the trial court should have imposed as to each appellant. We have received their responses.
Based on our review of the record and applicable law, we conclude that various sentencing errors occurred and we order the clerk of the superior court to correct those errors that may be modified on appeal as described herein and remand for the trial court to exercise its discretion regarding the imposition of gang enhancements. We remand the matters with directions that the trial court resentence appellants in accordance with the views expressed in this opinion. In all other respects, we affirm the judgments.
BACKGROUND
In accordance with accepted appellate principles, we view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This evidence established during a crime spree that spanned several days, appellants committed three vehicle thefts, robbed two victims, and attempted to carjack and rob a third victim, who died from multiple gunshot wounds inflicted during the attempts.
On March 30, 2003, sometime after 6:30 p.m. and before 9:00 p.m., Marsha Whites 1994 gold Saturn, which she had parked on 36th Place near Vermont in South Los Angeles, was stolen. DNA consistent with Jones was found on the cars steering wheel, and Roberts DNA also was recovered from Whites car. The apartment key recovered from Whites Saturn belonged to Kimberly Burton, who had given it to Zelaya, her ex-boyfriend.
About 9 p.m., Whites Saturn stopped next to Isaiah Cains new black Navigator SUV, which had stopped for a red light at Crenshaw Boulevard and Slauson Avenue. Two African-American males armed with guns exited the Saturn, one from the front passenger side and the other from the back passenger side directly behind. One male tried to open the SUVs drivers door but Cain locked it. The two perpetrators then fired multiple shots through the door window into the SUVs front seat area. Marquise Davis, the front passenger jumped out and ran off. Cains 6 year old daughter remained in the back seat. The shooters quickly returned to the Saturn, which drove off. Cain, who was struck by three bullets, later died from multiple gunshot wounds.
Paul Goncalves noticed his 1994 gold Saturn that he had parked near Sunset and Havenhurst Avenue in Hollywood was gone. Whites gold 1994 Saturn was about 200 feet away from where his car had been parked. A twisted key was stuck in the ignition and the dome light was on; and the drivers window was partially cracked open while the passenger window was completely open.
About 12:30 am on March 31, 2003, Rayshown Taylor was driving his Explorer on Sunset with Luke Boyd, the front passenger, when a car in front stalled. As Taylor tried to maneuver around it, he almost collided with a gold Saturn behind him that also made the same maneuver. After exchanging angry words with the Saturn occupants, four African-American males, Taylor made a u-turn and stopped at a gas station on Sunset. While Taylor entered the store to pay for gas, Zelaya approached and tapped the Explorers passenger window. He asked, "`wheres your boy at?" Boyd called the man "`cuz" and responded, "`[I]t aint got to be all that. You were trying to hit our car." Zelaya replied, "`Im not no cuz. Im a [B]lood."
Upon his return after paying for the gas, Taylor noted the same gold Saturn was parked in front of his car. The Saturns driver remained inside. Two African-American males were at Boyds door, and Roberts, a third African-American male, was standing by the pumps at the drivers side. Roberts told Taylor he was with the Rolling Twenties, pulled a gun slightly out of a pocket, and threatened, "`I will shoot you." He then took Taylors cell phone, money, and wallet. Zelaya, whom Boyd believed had a gun because he had his hand behind his back, took Boyds wallet, two cell phones, earrings, a neck chain, and shoes.
Roberts got into the Saturns drivers side back seat while the other two, respectively, got into the front and back seats on the passenger side. The Saturn then drove off on Sunset.
On March 31, 2003, about 1:00 a.m., Gonclaves stolen gold Saturn rear-ended Kelly Fergusons Toyota Corolla that was stopped at a stoplight eastbound on Santa Monica Boulevard in West Hollywood. One occupant motioned for her to pull over. After she complied, the other car sped away. Ferguson called 911 and followed to get its license plate number. During the pursuit, the other car crashed into a light pole at Curson and Waring, and three or four African-American males exited and ran off. Jones DNA was recovered from the deployed airbag on the drivers side of Goncalves Saturn. Zelaya made several calls, beginning at 1:13 am that same day, on one of Boyds stolen cell phones, trying unsuccessfully to get a ride home.
On March 31, 2003, about 6:30 a.m., Lucian Fick discovered his 1994 Saturn, which he had parked at 8 p.m. the night before on Martel Avenue at Third Street in Los Angeles, was missing. Ficks Saturn had been parked about a mile from where Goncalves Saturn collided with the light pole.
On April 1, 2003, about 1 a.m., the police spotted Ficks Saturn in the vicinity of Buckingham and Rodeo and gave chase as the Saturn accelerated and refused to pull over. During the pursuit, the Saturn slowed, and Zelaya jumped out the front passenger seat. After the car stopped, Roberts exited the drivers door side and ran. Both Zelaya and Roberts were detained.
The ignition had been tampered with and needed to be replaced. No key was in the ignition. A pair of scissors without handles was found in the center console. The broken off scissors handle recovered from Goncalves Saturn was consistent with these scissors.
Six months earlier, on September 1, 2002, Jones was arrested in a 1992 stolen Saturn. A pair of scissors was stuck in the ignition and the steering column behind the wheel was broken. About September 13, 2002, when detained on regarding a stolen Toyota, Jones told police "[h]e only steals Saturns." On September 24, 2002, Jones was caught driving a stolen Saturn. On November 29, 2002, Jones was discovered sleeping in the drivers seat of Manuel Estradas stolen Saturn.
Los Angeles Police officer Mauricio Bautista, the Peoples gang expert testified regarding how these crimes were gang-related. The Rollings 20 was a Blood criminal street gang. Its primary activities were "narcotic sales, ADW shootings, robberies, street and commercial[] burglaries, stolen vehicles as well as murders."
He opined Roberts, whose monikers included "Hurt," was a member of the Rolling 20s gang. He also opined Jones, whose gang moniker was "Brooklyn, and Zelaya, whose moniker was "Dizzy B," were Rolling 20s gang members. Jones and Zelaya admitted their gang membership.
In 2003, the Rolling 20s territory consisted of the northern part of south Los Angeles. The 10 Freeway was its northern border. Its eastern border was Vermont Avenue, and 6th or 7th Avenue was its western border. The remaining border was Jefferson Boulevard.
The Rolling 20s was the enemy of all Crip gangs. The territory of the Rolling Thirties, a Crips gang, was directly below the Rolling 20s neighborhood. Further down was the territory claimed by the Rolling 40s, also a Crips gang, and below that was the turf of the Rolling 60s, another Crips gang.
Driving into or through a neighborhood of a rival gang, whose members also carry guns, gives a gang "higher prestige, . . . more respect in the gang." A gang member going into a rival gangs territory to commit a crime is "[e]xtremely dangerous" and garners a lot of respect.
Bautista opined the carjacking of a Lincoln Navigator, "a vehicle of that status," would be "one heck of a trophy to bring back to the [Rolling 20s gang] neighborhood, especially with rims like that." He explained the status of that gang would be elevated where the gang members had to travel through three rival territories "to come back with a trophy such as . . . a Lincoln Navigator with large expensive rims[.]"
Disrespect was not tolerated in a gang. Cutting off a gang member rather than slowing down or changing lanes to let him go by showed disrespect. Escalation and violence might ensue, including the gang member running the other car off the road or following the car to the drivers house and even shooting at the house. Bautista opined locking the car door signified disrespect to the gang members, sending the message: "you are ignoring them, that they dont exist." He explained "the gang members took [such door locking] was a sign of disrespect and the shooting happened." He also opined the gang members followed Taylors car to the gas station, because Taylors failure to slow down and let the gang members pass was "a sign of disrespect." He explained Boyd disrespected Zelaya by calling him "cuz," which was a reference to a Crips gang member and a "derogatory term for a Blood gang member."
A "gang gun" is a gun "thats recirculated several times[.]" Gang members pass around a weapon, "trade it off, hand it off and so on," because weapons are "sometimes hard to come by." Ronald Pleasant was a Rolling 20s gang member. The bullet casings recovered from the shooting scene and the three bullets recovered from Cains body had been fired from the .380 Beretta recovered from Pleasant by police on May 20, 2003. Recovered gun matched the casings found at the Cain murder scene.
Bautista opined the crimes charged in counts 1 through 6 and 8 through 12 were committed for the benefit of and in association with a criminal street gang.
At the bifurcated portion of Zelayas trial, evidence of his audio-taped statements to police was admitted. Zelaya admitted his involvement in the traffic collision at Waring and Curson and that he made 4 to 6 cell phone calls for a ride "to the hood, my homies." When asked about the Cain shooting incident, Zelaya said "I was just there, man"; "I didnt do s___t though"; and "Now I could go to jail for murder, huh?" He stated "Brooklyn did this s__t," and that Brooklyns friend, who was from Zelayas "hood" also was there. "They told — first we was gonna holler at some bitches, man"
Zelaya then gave the following account. He was in the right back passenger seat of a Saturn Brooklyn had stolen. They needed money. Brooklyn, the driver, started checking out cars to jack. The other passenger picked out a SUV. He hopped out of their car, tried to open the vehicles doors, and then began shooting. A baby was in the back seat. Zelaya thought the SUV was chosen because of its wheels.
Later, while driving down the street, they had an altercation with occupants in another car and followed them to a gas station. Zelaya admitted taking a cell phone from one of the occupants. While in Hollywood, their Saturn collided with a womans car and after she chased them, Brooklyn crashed the Saturn. Zelaya made the calls from the cell phone he had taken.
Brooklyn then stole another Saturn so they could get home. Brooklyn had taken all three Saturns. Zelaya admitted giving Brooklyn Kims key used in the first Saturn theft. He explained the second Saturn was stolen because the first was "hot[.]"
Appellants did not present any affirmative defenses.
DISCUSSION
1. CALCRIM 220 Not Lessen Reasonable Doubt
Appellants challenge CALCRIM 220 on the ground this instruction deprived them of Due Process (U.S. Const., 14th Amend.) by allowing the jury to determine guilt without considering the absence of evidence, and thus, impermissibly lowering the Peoples burden to prove guilt beyond a reasonable doubt. We find no constitutional infirmity.
"Failure to object to instructional error forfeits the issue on appeal unless the error affects defendants substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Respondent contends appellants have waived their instructional constitutional claims by failing to interpose their objections at trial. We disagree. Whether instruction on reasonable doubt was constitutionally infirm implicates a defendants substantive rights.
CALCRIM No. 220, as given, advised the jury in part:
"In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves a defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (Italics added.)
CALCRIM No. 220 was adopted in January 2005 and revised in August 2006. (See note to CALCRIM No. 220.)
Roberts and Zelaya contend the above italicized language in conjunction with CALCRIM No. 222 precluded the jury from considering the lack of evidence. Roberts claims the jury was thus foreclosed from taking into account the "marked dearth of testimonial, ballistics, and other physical evidence." Zelaya and Jones claim the jury thereby also was not allowed to consider the absence of evidence on the issue of intent. Appellants contentions are unpersuasive.
a. CALCRIM 220 Does Not Preclude Absence of Evidence Consideration
Initially, we point out the quoted language from CALCRIM 220 is in all essentials identical to similar language in CALJIC No. 2.90, an earlier instruction that the United States Supreme Court upheld against a related challenge.
In People v. Rios (2007)151 Cal.App.4th 1154 (review den.), the defendant argued the "language in CALCRIM 220 absent from analogous CALJIC No. 2.90 requiring the jury `to compare and consider all the evidence impermissibly shifts the burden of proof to the defense by allowing the jury to hold against the defense the absence of defense evidence." (Id. at p. 1156.)
The Rios court did not agree and explained: "CALCRIM 220 uses verbs requiring the jury `compare and consider all the evidence that was received throughout the entire trial. CALJIC No. 2.90 uses nouns requiring `the entire comparison and consideration of all the evidence by the jury. Ríos fails to persuade us that those grammatical differences are material. The United States Supreme Court rejected a constitutional challenge to CALJIC No. 2.90 in part on the rationale that `the entire comparison and consideration of all the evidence language `explicitly told the jurors that their conclusion had to be based on the evidence in the case. (Victor v. Nebraska (1994) 511 U.S. 1, 16.) The language Rios challenges in CALCRIM 220 did just that." (People v. Rios, supra, 151 Cal.App.4th at p. 1157.)
We note another appellate court has rejected a contention essentially identical to that appellant here makes. In People v. Westbrooks (2007) 151 Cal.App.4th 1500 (review den.) (Westbrooks), the defendant argued CALCRIM 220 "improperly `limited the jurys determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack of physical evidence tying [him] to the offense. . . . He notes that CALCRIM No. 222 generally defines evidence as the testimony and exhibits offered at trial." (Id. at pp.1506, 1509.)
In finding defendants construction of that sentence unpersuasive, the Westbrooks court reasoned: "The sentence to which [he] objects, like the remainder of CALCRIM No. 220, merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendants guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [defendant]s guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt." (Westbrooks, supra, 151 Cal.App.4th at p. 1509, italics added; see id. at p. 1508 ["Reasonable doubt may arise from the evidence presented at trial or the `"`lack of evidence[]"]; see also, People v. Guerrero (2007) 155 Cal.App.4th 1264.)
Mindful of the standard enunciated in Victor v. Nebraska, supra, 511 U.S. at page 5 for assessing the constitutional conformity of a particular reasonable doubt instruction, we conclude CALCRIM 220s directive that the jury "compare and consider all the evidence that was received throughout the entire trial" does not affect in any way the Peoples burden to prove a defendants guilt beyond a reasonable doubt. The instruction does not foreclose the jury from taking into account the absence of evidence. Rather, its import is this: In determining whether the People have carried their burden to prove guilt beyond a reasonable doubt, the jury may not ignore any evidence presented at trial.
Appellants reliance on People v. McCollough, supra, 100 Cal.App.3d 169 is misplaced. In McCollough, during a discussion regarding reasonable doubt, one juror asked, "So then the doubt must arise from evidence?" (Id. at p. 181.) The trial court responded: "Well, I would answer that yes, if you are saying—if your question—is what is reasonable doubt—reasonable doubt is that state of the case which, after a comparison and consideration of all of the evidence—that is the evidence introduced in the trial—after a comparison and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." (Ibid.) The appellate court concluded the trial court had "misled" the jury by instructing "`doubt must arise from the evidence," because reasonable doubt may arise from the lack of evidence in a case. (Id. at p. 182.)
In contrast, the trial court here did not instruct that reasonable doubt must arise from the trial evidence presented, nor would such an inference be reasonable from the instruction given when viewed in its totality. (See People v. Westbrooks, supra, 151 Cal.App.4th at pp.1509-1510; People v. Rios, supra, 151 Cal.App.4th at pp. 1156-1157.
The reliance of Roberts and Zelaya on People v. Simpson (1954) 43 Cal.2d 553 (Simpson) and People v. Garcia (1976) 54 Cal.App.3d 61 (Garcia) is similarly misplaced. In Simpson, the trial court embellished that standard reasonable doubt instruction by adding: Reasonable doubt "has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence," and reasonable doubt "means an actual and substantial doubt growing out of the unsatisfactory nature of the evidence." (Simpson, at p. 565, italics original.) Although finding this expanded explanation of reasonable doubt was nonprejudicial, our Supreme Court concluded this additional language was unnecessary and pointed out reasonable doubt "may well grow out of the lack of evidence in the case as well as the evidence adduced." (Id. at p. 566.) The trial judge in the present case did not instruct with the language of either Garcia or Simpson.
Zelaya and Roberts forfeited any claim of error regarding the absence of a definition of "abiding conviction" in the reasonable doubt instruction by failing to request such definition. (People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) Contrary to their claim, unsupported by any applicable authority, the trial court had no sua sponte duty to instruct on the definition of "abiding conviction" in CALCRIM No. 220. (See, e.g., Victor v. Nebraska, supra, 511 U.S. at pp. 14-15 ["[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the governments burden of proof"]; People v. Freeman (1994) 8 Cal.4th 450, 504 [approving instruction referring to "abiding conviction" without explanatory definition].)
To the extent Roberts sought instruction on reasonable doubt based on the Ninth Circuit Model Jury Instruction § 3.5, he has forfeited his claim of error by failing to seek such instruction below. (People v. Lang (1989) 49 Cal.3d 991, 1024; see also People v. Adrian (1982) 135 Cal.App.3d 335, 337, 342.
b. CALCRIM No. 222 Does Not Compel Contrary Conclusion
Contrary to the claim of Roberts and Zelaya, the jurys consideration of CALCRIM No. 220 in conjunction with CALCRIM No. 222 does not compel the conclusion that CALCRIM 220 must be interpreted as barring the jury from considering the absence of evidence.
"When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 777.) In other words, "`"[t]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citation.]" (People v. Williams (2004) 118 Cal.App.4th 735, 745.)
CALCRIM No. 222 instructs the jury: "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. `Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence."
A plain reading of CALCRIM No. 222 does not support an inference that the jury is being directed not to consider the absence of evidence. Rather, the unambiguous and clear import of the language "[y]ou must use only the evidence that was presented in this courtroom. . . . " is to direct the jury on the nature (e.g., type and kind) of evidence the jury may consider.
Assuming one were to view CALCRIM No. 222 to be ambiguous, because it does not expressly state the jury may consider the absence of evidence, we conclude no reasonable jury would be misguided into applying CALCRIM No. 220, as augmented with CALCRIM No. 222, to ignore the absence of evidence in determining whether the People presented sufficient evidence to prove a defendants guilt beyond a reasonable doubt.
2. "Abiding Conviction" Definition Not Constitutionally Compelled
Zelaya and Roberts contend their guarantee of due process was abridged by the trial courts failure sua sponte to define the phrase "abiding conviction" in giving the reasonable doubt instruction. CALCRIM No. 220 instructs the jury that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."
In People v. Turner (1994) 8 Cal.4th 137 our Supreme Court held that a definition of "abiding conviction" is not mandated in a reasonable doubt instruction under CALJIC No. 2.90. Although appellants contend the court gave the argument for such definition "short shrift and with little analysis," we may not ignore a clear holding of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In this regard, the Turner court stated: "The trial court gave the standard CALJIC No. 2.90 jury instruction on reasonable doubt. Defendant proposed the following instruction, which the trial court refused: `An abiding conviction is a belief with staying power. Even absolute positivism, if it wanes after some undetermined and undeterminable time, is insufficient. Therefore, not just any kind of conviction will dispel a reasonable doubt, it must be the abiding kind only. Defendant asserts that `such an instruction should be given whenever requested by a defendant, and particularly in cases involving `potential capital punishment and credibility issues.
"We have, however, on numerous occasions, determined that CALJIC No. 2.90 is `a constitutionally sound description of reasonable doubt, and that `[n]o additional instructions on reasonable doubt [are] necessary. (People v. Morris [(1991)] 53 Cal.3d [152] at p. 214; see Victor v. Nebraska [, supra, 511] U.S. . . . 114 S.Ct. 1239, 1243, 1251.) We conclude that the jury was adequately instructed on this issue." (People v. Turner, supra, 8 Cal.4th at p. 203.)
They further argue "the proffered definition of `abiding conviction [in Turner] was different and more extensive tha[n] the straightforward and concise definition proposed in this case[,]" namely, "an abiding conviction is one `which is lasting and permanent in nature[.]"
In People v. Freeman (1994) 8 Cal.4th 450, our Supreme Court approved a reasonable doubt instruction that contained the phrase "abiding conviction" that was not defined and admonished trial courts against modifying the standard reasonable doubt instruction "not because the instruction cannot be improved today. . . . [but] because varying from the standard is a `perilous exercise. [Citation.]" (Id. at pp. 503, 504.)
Zelaya and Roberts argue a definition of "abiding conviction" in the context of the new CALCRIM instruction is warranted by "the increasingly anachronistic nature of the `abiding conviction language."
We are not persuaded. As the United States Supreme Court already has held: "An instruction cast in terms of an abiding conviction as to guilt, . . . correctly states the governments burden of proof." (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15. See also People v. Campos, supra, 156 Cal.App.4th at p. 1239.)
3. CALCRIM No. 226 Does Not Invite the Jurors to Consider Matters Outside Record
Zelaya and Roberts contend they were deprived of due process and their rights to a fair trial and to confront witnesses, because CALCRIM No. 226 impermissibly invited jurors to consider matters outside the record. Zelaya argues by directing jurors to use their common sense and experience in evaluating witness credibility, CALCRIM No. 226 caused jurors to rely on extra-judicial evidence and/or employ a lower standard of proof by substituting "common sense" for an objective standard of proof. We disagree. A plain reading of CALCRIM No. 226 in its entirety and in context does not lend itself to such an interpretation.
Respondent argues this issue was waived by the failure to raise it below. No forfeiture transpired. A defendants substantive rights would be abridged where the jury is directed to consider matters outside the evidence presented at trial.
CALCRIM No. 226 provides in pertinent part: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard." (Italics added.)
On its face, CALCRIM No. 226 does not authorize, much less direct, the jury to consider "extra-judicial evidence." The plain purpose of this instruction is to provide jurors with guidance on how to evaluate witness credibility. Each jurors "common sense" and "experience" are merely the filters through which a juror is to view the testimony of a witness. "`Evidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, §140.) Neither "common sense" nor "experience" therefore constitutes "evidence" of any kind, including "extra-judicial."
Moreover, CALCRIM 226s directive to the jury to "use your common sense and experience" in assessing the credibility or believability of witnesses is consistent with the inherent role of jurors in considering evidence that does not necessitate an expert. As our Supreme Court explained: "Jurors views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work." [Citations.]" (People v. Yeoman (2003) 31 Cal.4th 93, 161, italics added.)
Trial by jury is an inviolate right under the state and federal constitutions. (U.S. Const. 6th Amend.; Cal. Const., art. 1, §16.) This right is intended to guarantee "[ i]f the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he-was to have it." (Duncan v. Louisiana (1968) 391 U.S. 145, 156, italics added.)
"Jurors cannot be expected to shed their backgrounds and experiences at the door of the deliberation room." (People v. Fauber (1992) 2 Cal.4th 792, 839.) On the contrary, they are "expected to bring their individual backgrounds and experiences to bear on the deliberative process." (People v. Pride (1992) 3 Cal.4th 195, 268, italics added.) "Jurors [thus] bring to . . . deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience." (People v. Marshall (1990) 50 Cal.3d 907, 950.)
Other than evaluating evidence requiring technical expertise, in "most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them." (People v. Venegas (1998) 18 Cal.4th 47, 80)
"[O]rdinarily jurors are equipped to examine crime scene photographs and autopsy evidence and to form an opinion, in the context of their own perception of the evidence in the particular case, whether the wounds depicted are so similar they suggest the wounds were inflicted by the same person. Notwithstanding the ability of jurors to review the evidence before them and draw commonsense inferences, it may aid them to learn from a person with extensive training in crime scene analysis, who has examined not only the evidence in the particular case but has in mind his or her experience in analyzing hundreds of other cases, whether certain features that appear in all the charged crimes are comparatively rare, and therefore suggest in the experts opinion that the crimes were committed by the same person." (People v. Prince (2007) 40 Cal.4th 1179, 1222-1223.)
We therefore hold that the trial court did not err in instructing the jury pursuant to CALCRIM 226.
People v. Paulsell (1896) 115 Cal. 6 and People v. Bickerstaff (1920) 46 Cal.App 764, relied upon by Zelaya and Roberts, are factually inapplicable. Both Paulsell and Bickerstaff involved instructions that allowed jurors to use their common sense to determine whether or not reasonable doubt existed.
Additionally, any possibility that a jurors reliance on "common sense" and/or "experience" might lead to consideration of matters other than evidence presented at trial was laid to rest by the giving of CALCRIM No. 201, which instructed the jury not to conduct any research, including using a dictionary or other reference materials, not to investigate facts or law, conduct any experiments, or visit any event scene, and CALCRIM No. 222, which instructed the jury only to rely on the evidence, which it defined, presented in the courtroom and to disregard anything seen or heard when the court was not in session.
4. Abundant Evidence of Crimes Against Cain
Roberts and Jones contend the evidence was insufficient to support their respective convictions for the attempted carjacking, attempted robbery, and murder of Cain. We find abundant evidence to support each conviction.
a. Standard of Review
"The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] `"[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." [Citation.] `The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt." [Citation.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)
b. Attempted Carjacking and Attempted Robbery
(1) Applicable Legal Principles
Both robbery and carjacking involve the felonious taking of property from the possession of another. Robbery may involve any type of personal property; carjacking involves only vehicles. (People v. Lopez (2003) 31 Cal.4th 1051, 1058.)
"Carjacking is defined as `the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. (§ 215, subd. (a), italics added.)" (People v. Lopez, supra, 31 Cal.4th at p. 1055.)
"Robbery is defined as `the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (§ 211, italics added.)" (People v. Lopez, supra, 31 Cal.4th at p. 1056.)
"`An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission. [Citations.] Commission of an element of the underlying crime other than formation of intent to do it is not necessary. [Citation.] Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.] [Citation.]" (People v. Jones (1999) 75 Cal.App.4th 616, 627, fn. omit.)
Attempted carjacking is committed when: (1) the defendant had the specific intent to facilitate the commission of carjacking; and (2) he carried out a direct but ineffective act towards the commission of the carjacking. (See People v. Jones, supra, 75 Cal.App.4th 616, 628.)
"In order to establish attempted robbery, the People must prove specific intent to commit robbery and a direct unequivocal overt act toward its commission. This act must go beyond mere preparation." (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)
Although a defendant may be convicted as the actual perpetrator of the crime, his conviction also may rest on his status as an aider and abetter of that perpetrator. Moreover, "an aider and abettor `is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. As the Court of Appeal in People v. Brigham (1989) 216 Cal.App.3d 1039 noted, although variations in phrasing are found in decisions addressing the doctrine — `probable and natural, `natural and reasonable, and `reasonably foreseeable — the ultimate factual question is one of foreseeability. [Citations.] `A natural and probable consequence is a foreseeable consequence [citations]; the concepts are equivalent in both legal and common usage." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106.)
"The ultimate factual question to be determined on the issue of an aider and abettors derivative liability has always been held by the Supreme Court to be the test of whether the perpetrators criminal act, on which the aider and abettors derivative criminal liability is based, was the `probable and natural [citation], the `natural and reasonable [citation], or the `reasonably foreseeable [citation] consequence of a criminal act encouraged or facilitated by the aider and abettor. . . . Its resolution is within the ken of a jury as a question of fact for it to decide, and one on which its determination is conclusive. [Citations.]" (People v. Brigham (1989) 216 Cal.App.3d 1039, 1050, fn. omitted (Brigham).)
"The derivative criminal liability of an aider and abettor for a perpetrators crime may exist even though that crime was unintended by the aider and abettor. The principal committing the crime and his aider and abettor need not possess the same intent in order to be criminally responsible for the committed crime. [Citation.]" (People v. Brigham (1989) 216 Cal.App.3d 1039, 1051.)
(2) Attempted Carjacking and Attempted Robbery — Roberts
Roberts contends the evidence was insufficient to support his attempted carjacking and attempted robbery convictions, because there was no solid evidence he intended to steal either Cains car or his belongings. We find the evidence of such intent to be ample.
Roberts argues the evidence showed "defendants did not attempt to `go and take the Lincoln Navigator — either before or after they shot into it. The facts . . . also showed the men did not `tr[y] the door first, i.e., before shooting at Cain. Rather, all the eyewitnesses indicated that the shooting did not appear to be for the purpose of stealing Cains car or possessions." He points out the shooters did not demand Cain turn over his car or car keys; they never attempted to operate the car; and they did not "grab for his wallet or any other personal possession." He contends the evidence merely showed the shooters simply intended to assault or shoot the person(s).
On the contrary, the record discloses sufficient substantial circumstantial evidence from which the jury was entitled to infer the intent of the perpetrators was to carjack Cains car and rob him of his personal property. The fallacy of Roberts position is his myopic focus on the Cain incident in isolation. When properly viewed in the context of the whole picture, the intent to steal Cains Navigator and Cains personal possessions becomes readily evident.
The Cain incident was simply a single episode in a continuing crime spree that included the stealing of cars and robbery. It all began sometime after 6:30 p.m. but before about 9:00 p.m. on March 30, 2003, when Whites parked Saturn was stolen by appellants, all fellow Rolling 20s gang members. About 9:00 p.m., Whites Saturn pulled up next to Cains vehicle which was stopped at a signal light. Two passengers, each armed with a handgun, exited the Saturn. One tried to open the drivers door where Cain sat, but he was unsuccessful, because Cain had locked the door. They then fired multiple shots at the door window and the vehicles front seating area. The bullet casings from the shooting scene and bullets recovered from Cains body were all fired from the gun retrieved from Pleasant, another fellow Rolling 20s gang member. After the shooting, the two shooters returned to the Saturn, which then drove off.
Shortly, Whites 1994 gold Saturn was abandoned. Appellants took off in Goncalves 1994 gold Saturn, which was parked about 200 feet away. Around 12:30 a.m., Goncalves Saturn almost collided with the Explorer driven by Taylor, who had words with the Saturns four male occupants. Afterwards, Taylor pulled into a gas station. Zelaya and another African-American male were at the front passenger door of Taylors car while Roberts stood by the pumps on his drivers side. The Saturns driver did not exit. As Taylor began pumping gas, Roberts, who pulled a gun slightly out of his left pocket, threatened to shoot Taylor. He then went through Taylors pockets, taking his cell phone, money, and wallet. Zelaya took the shoes, earrings, wallet and cell phone belonging to Boyd, the front passenger in Taylors car.
Shortly after appellants made their getaway in Goncalves Saturn, the Saturn collided with Fergusons car, and after a chase by Ferguson, the Saturn struck a light pole. Jones then stole Ficks Saturn, which was parked about a mile away. The next day, during a police pursuit, Zelaya jumped out of Ficks Saturn, and Roberts was the driver of Ficks Saturn when the police detained him.
The totality of these circumstances, along with the undisputed evidence that Cains brand new Lincoln Navigator was "one heck of a trophy" to bring back to "the hood" through three rival gang neighborhoods, entitled the jury to infer Roberts not only intended to carjack Cains prized car, which would elevate his status among his own and rival gangs, but also to steal any personal valuables he might have, which would be criminal conduct consistent with that committed by the Rolling 20s gang.
It is inconsequential that the perpetrators did not follow through and take Cains car or his personal effects. A reasonable inference arises that prudence may have dictated they flee before the police arrived. Moreover, the uncontroverted evidence that no one in the Navigator had a gun and Cain had not been in any confrontations with anyone that day dispels Roberts speculation that the perpetrators were targeting Cain for personal reasons rather than to rob him and steal his Navigator.
(3) Attempted Carjacking and Attempted Robbery — Jones
Jones similarly contends "[t]here [wa]s no evidence whatsoever bearing on what crimes the shooters intended to commit, and there was no evidence on their intent when they shot." He argues "[t]here was no evidence bearing on specific intent or any of the elements of carjacking or robbery."
He asserts "the totality of the evidence" merely showed a gold Saturn pulled up slightly to the left of Cains Navigator; two males exited the Saturns passenger side doors, approached and simultaneously began firing into the Navigator; the shooters then quickly returned to the Saturn, which drove off when the light turned green. Jones points to the evidence of the Navigators front passenger that he had no idea what provoked the shooting and there had not been any incidents with anyone beforehand. He argues the only detail concerning the incident was the testimony of Cains daughter, also a passenger, that Cain locked the door when the shooters tried to open his door.
As in the case of Roberts, Jones also lacks the larger picture. The DNA evidence established Jones, a Rolling Twenties gang member, was the driver of Whites Saturn, which was stolen momentarily before the Cain incident. Jones, who admitted he specialized in stealing Saturns, had a history of doing so. Roberts, a fellow gang member, was also in Whites Saturn. The gang expert explained the brand new Navigator was "one heck of a trophy" that would have elevated their gangs status. The fact Jones claimed only to have stolen Saturns was evidence the jury was free to disregard.
That Jones remained in the drivers seat of the Saturn during the Cain incident does not absolve Jones of his culpability as an aider and abettor of the attempted carjacking and attempted robbery of Cain. Rather, it is this fact, along with the fact he did not in fact drive off until the shooters returned to the Saturn, that gives rise to his liability for these crimes. (See People v. Cooper (1991) 53 Cal.3d 1158, 1168, fn. 12 [getaway driver liable as aider and abettor of the robbery where he "agrees before (or during) commission of a robbery to be a getaway driver and thereby encourages and/or facilitates the commission of the robbery"].)
Jones speculates: "[T]here may have been a history or an incident involving the defendants and Cain of which [his] passenger was unaware; the shooting may have resulted from a dope deal gone bad, because Cain did drive a very expensive automobile and no explanation for this fact was offered; or because Cains passenger was a parolee... and he was the intended target."
We find unpersuasive Jones laundry list of speculative scenarios to negate attempted carjacking and attempted robbery as the underlying reasons for targeting Cain. Such speculation does not constitute evidence supporting Jones position. (People v. Thomas (1992) 2 Cal.4th 489, 545.)
c. Felony-Murder — Roberts and Jones
A killing during the course of an attempted robbery or attempted carjacking would support a conviction for first degree felony-murder. (§189; see, e.g., People v. Dillon (1983) 34 Cal.3d 441, 452-453 [first degree felony-murder based on attempted robbery]; People v. Torres (1995) 33 Cal.App.4th 37, 49 [same].)
Jones and Roberts do not contest this correct statement of law. Rather, they contend the felony-murder conviction cannot stand because the evidence to support the attempted carjacking and attempted robbery was legally insufficient. As we have upheld the sufficiency of the evidence to support their convictions for these qualifying felonies, their challenge to their first degree murder conviction fails.
For the same reason, their claim that the felony murder instruction should not have been given also fails.
5. Ample Evidence Supports Zelayas Convictions (Counts 8 & 9)
Zelaya contends the evidence is insufficient to support his convictions for stealing Goncalves Saturn (count 8) and Ficks Saturn (count 9). We find the evidence ample.
The crime of unlawful vehicle taking is committed when a "person . . . drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle" and "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing" is also culpable for this crime. (Veh. Code §10851, subd. (a).)
"Mere possession of a stolen car under suspicious circumstances is sufficient to sustain a conviction of unlawful taking. Possession of recently stolen property is so incriminating that to warrant a conviction of unlawful taking there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citation.]" (People v. Clifton (1985) 171 Cal.App.3d 195, 199-200.)
Ample circumstantial evidence exists to support Zelayas convictions for unlawful vehicle taking in counts 8 (Goncalves) and 9 (Fick). This evidence established Zelaya, a "Rolling Twenties" gang member, was an aider and abettor who intended to and willingly assisted Jones, a fellow gang member, to steal vehicles during the continuing crime spree. Zelaya admitted to police that he knowingly and voluntarily participated in the vehicle thefts for money. He related Jones stole all the Saturns.
Zelaya does not challenge his conviction for the first unlawful taking (Whites Saturn). Zelaya admitted to police that he supplied Jones with his girlfriends apartment key to facilitate that theft. Zelaya also admitted that during the subsequent Cain incident, he was one of the two passengers who got of the Saturn. He believed Cain was targeted, because of the wheels on his Navigator, which was "brand new," and they wanted money.
Zelaya admitted to police that during the gas station robbery sometime after midnight, he took a cell phone from one victim.
Zelaya told police he believed Jones stole the second Saturn, because the first was "too hot." This Saturn belonged to Goncalves, which had been parked about 200 feet away from the abandoned first Saturn. Around 1:00 a.m., this Saturn rear-ended Fergusons car. During the pursuit by Ferguson, Jones crashed the Saturn into a pole. Zelaya told police he and Jones exited the Saturn and began running. At 1:13 a.m. Zelaya called his sister on one of Boyds stolen cell phones in an unsuccessful attempt to obtain a ride, because he was stranded in Hollywood.
When asked how they got home, Zelaya told police Jones took another Saturn. This stolen car was Ficks Saturn. A reasonable inference may be drawn that Zelaya was with Jones as he stole Ficks Saturn. During a police pursuit the next day, Zelaya jumped out of the front passenger seat, and Roberts got out of the drivers seat after the Saturn stopped.
A broken scissor handle was found in Goncalves Saturn. A bent pair of scissors without handles was retrieved from Ficks Saturn. No ignition key was found. The scissor handle was similar to a piece of plastic on the scissor blades found in Ficks car. The broken scissor blades could have been used to start Goncalves and Ficks Saturns. Zelaya stipulated his DNA was on the baseball cap found in Ficks Saturn. These facts all contribute substantial evidence of the two car taking crimes.
6. Ample Evidence Supports Roberts Convictions (Counts 4 & 8)
Roberts challenges the sufficiency of the evidence to support his convictions for unlawful vehicle taking in counts 4 (White) and 8 (Goncalves). We find the evidence ample to support both convictions.
The totality of the circumstances establish Roberts aided and abetted Jones in the unlawful vehicle theft of Whites Saturn, the initial theft, Goncalves Saturn, the next theft, and Ficks Saturn, the final theft.
Although he does not challenge his conviction for the unlawful vehicle theft of Ficks Saturn (count 9), that Roberts participated in the unlawful vehicle theft of Ficks Saturn as an aider and abettor is highly probative of whether Roberts also participated in the two earlier thefts of the same type of car. Roberts role as an aider and abetter in the theft of Ficks Saturn, when viewed along with highly probative evidence presented at the joint trial of Zelaya and Roberts gives rise to a reasonable inference that Roberts indeed was an aider and abetter in all three unlawful vehicle thefts.
Roberts DNA was found on the rear passenger seat of Whites car. Whites Saturn was ditched about 200 feet away from Goncalves parked Saturn, which Jones stole because Whites Saturn had become "too hot" after the Cain shooting. Shortly, Roberts robbed Taylor while Zelaya robbed Boyd. Afterwards, both Roberts and Zelaya get into Goncalves Saturn, which speeds away. After Jones crashed Goncalves Saturn, he stole Ficks Saturn. Roberts was driving Ficks Saturn the next day when pursued by the police.
That Roberts shared the requisite specific intent may be inferred from the evidence car theft was a criminal activity of the Rolling 20s, of which appellants were gang members, and that Roberts was with Jones not only when the latter initially stole Whites Saturn but also when Jones stole Goncalves Saturn as a replacement and then stole Ficks Saturn upon crashing Goncalves Saturn.
7. No Error in Denial of Roberts New Trial Motion
Roberts contends the trial court erred in denying his motion for a new trial based on newly discovered material evidence, namely, Zelayas statement in his supporting declaration exculpating Roberts for the Cain incident. He argues this evidence was newly discovered, because at trial, Zelaya elected not to testify (U.S. Const., 5th Amend.) and on advice of counsel, Zelaya had refused to speak with Roberts attorney. We find denial of the new trial motion was not an abuse of discretion.
Zelaya stated in his declaration that he would testify that at the time of the Cain incident, Roberts was not present and Zelaya occupied the rear passenger seat, where Roberts hair was retrieved. Roberts moved for a new trial on the ground this evidence supported the defense theory that Roberts hair was a secondary transfer rather than a direct deposit by Roberts himself and that absent this hair evidence, there was insufficient evidence to connect Roberts to Cains murder, which would warrant a retrial.
In her opposition, the prosecutor argued Zelayas testimony not only was not "newly discovered evidence," the evidence presented at trial established appellants acted in concert; Roberts was involved with the thefts of the second and third Saturns; circumstantial evidence tied Roberts to the theft of the first Saturn; and Roberts participated in the robberies of Boyd and Taylor. She further argued it was unlikely Zelayas testimony, if presented, would produce a different result on retrial. She argued eyewitness testimony and Roberts admission to police that he was involved in the robberies undermined Zelayas credibility in light of the latters assertion to police that Roberts was not present during the robberies.
Exhibit 1 presented at the hearing on the new trial motion was a copy of transcripts from Roberts audio-taped police interviews, which had not been introduced at trial.
At the hearing, the trial court compared the copies of transcripts with an audio tape of Zelayas police interviews and found an inconsistency regarding whether Zelaya told police that Roberts was or was not present during the robberies. The court resolved the discrepancy by finding Zelaya told police Roberts was not present.
Following argument, the court denied the new trial motion. The court found that in light of the totality of the evidence, even if Zelayas statement qualified as newly discovered evidence, it was not probable that it would result in a different verdict for Roberts. The court found if Zelaya were to testify Roberts was present for the robberies but not the murder, such testimony would not "ring true." The court further found the evidence of Roberts involvement in the crimes for which he was convicted was overwhelming. The court pointed to the timing sequence of the March 30 and 31 events; the use of three different Saturns; the fact each was dumped after its use in committing a crime; Roberts arrest in the third Saturn; and the appellants same gang affiliation.
"`"The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." [Citations.] `"[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background." [Citation.]" (People v. Delgado (1993) 5 Cal.4th 312, 328. (Delgado).)
"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: `"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." [Citations.]" (Delgado, supra, 5 Cal.4th 312 at p. 328.)
Moreover, "`the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable. [Citation.]" (Delgado, supra, 5 Cal.4th 312 at p 329; see also, People v. Rodriguez (1959) 168 Cal.App.2d 452, 462 ["In exercising its discretion, the court was not bound to accept the testimony of the brother as true even though it may have been uncontradicted"].)
Mindful of these principles, we conclude the trial court did not abuse its discretion in denying Roberts new trial motion. We concur in the courts conclusion that a result more favorable to Roberts would not probably ensue if Zelayas anticipated exculpatory testimony were admitted in Roberts retrial. It is highly unlikely that the jury would find Zelaya, a fellow gang member and now a convicted felon, believable or credit his denial that Roberts was in Whites Saturn but was not involved in the Cain shooting.
We note but do not pass on the statement in Zelayas supporting declaration that he was advised not to speak with Roberts attorney or testify on Roberts behalf until he had been sentenced. The above disposition also obviates the need to address the due diligence and other remaining factors applicable to new trial motions. (See, e.g., People v. Delgado, supra, 5 Cal.4th at p. 329.)
Moreover, even if the jury were to credit Zelayas anticipated testimony, the remaining circumstance evidence overwhelmingly points to Roberts involvement in Jones gang-related scheme to steal Saturns and commit crimes using the stolen Saturns, his involvement in the robberies of Boyd and Taylor, and his involvement in the attempted carjacking, attempted robbery, and murder of Cain. (See People v. Delgado, supra, 5 Cal.4th 312, 328, 329 [unlikely post trial declaration would "render a different result probable on retrial" where declaration "failed to diminish the strength of much more damaging testimony against defendant"].)
8. Failure to Make Cunningham Objection Not Forfeiture
The trial court imposed the 5 year upper term on count 6 as to each of appellants. No appellant raised any objection that he had a federal constitutional right to a jury trial on the aggravating factors that would justify an upper term sentence. We find no objection was necessary.
At the time each appellant was sentenced, the controlling law was enunciated in People v. Black (2005) 35 Cal.4th 1238 (Black I) where our Supreme Court held that the states Determinate Sentencing Law (DSL) did not violate a defendants federal constitutional right to a jury trial by authorizing the trial judge to make factual findings that would subject a defendant to a possible upper term sentence. In Cunningham v. California, supra, 549 U.S. ___ the United States Supreme Court overturned Black I.
Subsequently, our Supreme Court concluded the absence of an objection did not forfeit a defendants claim he was entitled to a jury trial on the factors justifying an upper term sentence where such objection would have been futile, because "Black I was binding on the lower courts until it was overruled by the high court. [Citation.]" (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).)
Jones was sentenced on May 11, 2006. Zelaya was sentenced on June 15, 2006. Roberts was sentenced on August 3, 2006. Accordingly, an objection to the denial of a jury trial would have been futile, because Cunningham was not decided until 2007. The absence of an objection therefore did not forfeit appellants constitutional claim for appeal.
9. Remand Based on Cunningham Error Not Required
Appellants contend that imposition of upper term sentences on count 6 based on facts not found true beyond a reasonable doubt by the jury violated the right to a jury trial. (Cunningham v. California, supra, 127 S.Ct. 856; Blakely v. Washington (2004) 542 U.S. 296.) We agree. The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (Sandoval, supra, 41 Cal.4th at p. 838; Washington v. Recuenco (2006) 548 U.S. 212 [126 S.Ct. 2546, 2553].) In making this determination, "we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence." (Sandoval, at p. 838.) "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Id. at p. 839.) Sandoval observed that, in making this determination, a reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. A defendant at trial does not necessarily have the reason or opportunity to challenge the evidence supporting aggravating circumstances unless such a challenge would also have tended to undermine proof of an element of the offense. (Ibid.) Further, the right to a jury trial and the requirement of proof beyond a reasonable doubt does not apply to the aggravating fact of a prior conviction. (Blakely, at p. 301, see Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-244; Sandoval, at pp. 836-837, fn. omitted.)
The trial court imposed the 6 year upper term on count (6) as to Zelaya and Roberts on the sole "aggravating circumstance" that each presented "a danger to the community." Respondent contends that any Cunningham error was harmless as to all appellants, because the jury would have found appellants were a danger to the community beyond a reasonable doubt in view of the "largely uncontested or overwhelming evidence" about their gang membership, the manner in which they robbed Boyd for the benefit of their gang, and the circumstances of their "crime spree spanning two days." We agree with this contention.
California Rules of Court, rule 4.421(b)(1) lists as an aggravating factor that "[t]he defendant has engaged in violent conduct that indicates a serious danger to society."
As to Jones, respondent argues the trial courts "danger to the community" circumstance is equivalent to the jurys true finding on the gang allegation on Count 6 as to Jones. We do not agree with this analysis because it would make gang membership an automatic qualifier for a high term sentence. We do not believe this is an appropriate result. Gang membership alone, without analysis of the specific criminal behavior, should not result in an automatic high term.
We are confident that given the totality of circumstances in this case a jury would have found true, beyond a reasonable doubt, at least one, or more, aggravating circumstances about each appellant in this case. (People v. Sandoval, supra, 41 Cal.4th at p. 838.) First, the danger to the community is extremely clear. Appellants engaged in a crime spree that spanned several days. During that period, they committed three vehicle thefts, robbed two victims and attempted to carjack and rob a third victim who died from multiple gunshot wounds inflicted during the attempts. This exceedingly dangerous behavior, taken together with other relevant circumstances, including multiple victims, appellants gang memberships, and appellants prior criminal records, is sufficient to satisfy us that there was no error in sentencing appellants to the high term on count 6.
People v. Calhoun (2007) 40 Cal.4th 398, 408 [no Cunningham error based on multiple victim aggravating circumstance where jury found multiple victims].)
According to the probation reports, Jones has two felony and one misdemeanor prior convictions and two prior juvenile adjudications. He also served one prior prison term. Zelaya sustained five prior juvenile adjudications. Roberts sustained two misdemeanor and three felony prior convictions. He served three prior prison terms.
10. Staying of Sentencing on Counts 2, 3, and 7 Error
Appellants were convicted on counts 2 and 3, respectively, of the attempted carjacking and attempted robbery of Cain. Roberts was convicted on count 7 of possession of a firearm by felon. At sentencing, the trial court stayed imposition of sentence pursuant to section 654 as to appellants on counts 2 and 3 and as to Roberts on count 7. In so doing, the trial court committed reversible error.
The appropriate procedure is to impose an appropriate sentence and then stay execution of the punishment. (See, e.g., People v. Niles (1964) 227 Cal.App.2d 749, 756, cited with approval In re Wright (1967) 65 Cal.2d 650, as noted in People v. Pearson (1986) 42 Cal.3d 351, 360.)
We therefore modify the judgments insofar as the trial court failed to sentence appellants on counts 2 and 3 and Roberts on count 7 and remand with directions to the clerk of the superior court to modify the abstract of judgment accordingly: sentence Zelaya and Jones on counts 2 and 3 and stay those sentences; sentence Roberts on count 7 and stay that sentence.
11. Firearm Enhancements Not Imposed Improperly Stayed
Roberts contends the trial court erred in staying the lesser principal firearm enhancements (§12022.53, subds. (b), (c) & (e)(1)) on count 1 (murder) and asserts the stayed terms should be stricken pursuant to subdivision (f) of section 12022.53. We find the trial court erred but not for the reason assigned by Roberts.
The trial court simply stayed the punishment on these principal firearm findings as to Jones and Roberts instead of imposing the corresponding enhancements and then staying the punishment therefor. These matters therefore must be remanded for the trial court to correct these errors.
In a letter brief, Roberts contends this court concluded otherwise in People v. Garcia (2007) 155 Cal.App.4th 929. We disagree. In Garcia, this court stated: "We find the reasoning of Bracamonte persuasive and adopt it here. Accordingly, the trial court properly stayed the section 12022.53, subdivision (b) enhancements for counts 1 and 2." (Id. at p. 946.) In the Garcia case, the issue was not whether the trial court erred in failing to impose and then stay the enhancement. The parties did not challenge the fact the court imposed the enhancement before staying its execution. Rather, the issue raised was whether the trial court should have stricken instead of staying the enhancement. In Bracamonte, the court held the correct procedure is to impose and then stay the enhancement. In Garcia, this court expressly found Bracamonte to be persuasive. Accordingly, when viewed in context, the reference to "stayed" in Garcia is simply shorthand for the trial courts action in both imposing and then staying the enhancement.
Jones concedes in a letter brief that the trial court erred in staying imposition of the lesser firearm enhancements rather than staying their execution.
The jury found the three principal firearm allegations (§ 12022.53, subds. (b), (c), (d) & (e)(1)) on count 1 to be true as to Jones and Roberts. In sentencing Jones and Roberts on count 1, the trial court imposed the greater 25 years to life enhancement (§12022.53. subd. (d)) and stayed the lesser 20 year (§12022.53, subd. (c)) and 10 year (§12022.53, subd. (b)) enhancements.
Whether the true findings under subdivisions (b) and (c) must be stricken rather than the punishment therefor stayed was addressed by Division 4 of this court in People v. Bracamonte (2003) 106 Cal.App.4th 704 (review den.) (Bracamonte). The Bracamonte the court explained: "[T]he word "impose" encompasses both situations where an enhancement is imposed and then executed and imposed and then stayed. However, as a practical matter, the word `impose is often employed as shorthand to refer to the first situation, while the word `stay often refers to the latter.
We note the appropriate disposition of a lesser firearm enhancement under section 12022.53 is an issue pending before our Supreme Court in People v. Gonzales (No. S149898; review granted Mar. 14, 2007; formerly 142 Cal.App.4th 437.)
"The better rule is the trial court must either impose an enhancement or strike the underlying finding, and set forth its reasoning for such striking in the minutes. It is without authority simply to stay the imposition of the enhancement. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Bradley (1998) 64 Cal.App.4th 386, 390-391; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Irvin (1991) 230 Cal.App.3d 180, 190 [failure to impose or strike enhancement unauthorized sentence subject to correction on appeal]; contra, People v. Vergara (1991) 230 Cal.App.3d 1564, 1568-1569 [permanent staying of enhancement equivalent of striking enhancement].)" (Bracamonte, supra, 106 Cal.App.4th at p. 711.)
The Bracamonte court concluded: "we conclude that section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term. (See, e.g., Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [`The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible . . . . (citation omitted)].)" (Bracamonte, supra, 106 Cal.App.4th at p. 713.)
Accordingly we modify the judgment to direct the clerk of the superior court to modify the abstracts of judgment as to Jones and Roberts to impose and stay the lesser 20 year (§12022.53, subd. (c)) and 10 year (§12022.53, subd. (b)) enhancements to count 1.
12. Striking of Count 1 Firearm Findings as to Zelaya Mandated
Zelaya contends, and the People concede, the trial court erred in staying imposition of the firearm enhancements under subdivisions (b), (c), and (d) of section 12022.53 as to count 1 rather than striking the firearm findings. We concur.
Zelaya was not charged with a firearm allegation under subdivisions (b), (c), or (d) of section 12022.53. However, pursuant to subdivision (e)(1) of section 12022.53, the enhancements under subdivisions (b), (c), and (d) of section 12022.53 are applicable to a person charged as a principal in the commission of an offense that includes an allegation pursuant to this section when a violation of both this section and subdivision (b) of section 186.22 (gang enhancement) are pled and proved. (§12022.53, subd. (e)(1), italics added.)
The jury found the gang enhancement allegation (§ 186.22, subd. (b)) to be not true. In the absence of a true finding on that enhancement, no firearm enhancement, whether under subdivision (b), (c), or (d) of section 12022.53 could be imposed. Accordingly, the trial court erred in staying these enhancements on count 1. Therefore the clerk of the superior court is directed to modify the abstract of judgment for Zelaya by striking the gang enhancement allegation (§186.22, subd. (b)) on count 1.
13. Failure to Impose Gang Enhancement Unauthorized Sentence
The jury found true the gang allegation (§186.22, subd. (b)(1)) on counts 4, 8, and 9 as to appellants and on counts 10 and 11 as to Roberts. The trial court stayed imposition of the gang enhancement warranted by these true findings. The court committed error in this regard. Other than certain inapplicable exceptions, the trial court has discretion to impose a gang enhancement of two, three, or four years. (§186.22, subd. (b)(1)(A).) "Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section . . . where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." (§ 186.22, subd. (g), italics added.) The trial court is not authorized to stay imposition of such gang enhancement.
The judgments must therefore be reversed in these particulars, and the matters remanded for the trial court to vacate its orders staying imposition of a gang enhancement on counts 4, 8 and 9 as to Zelaya and Jones and on counts 10 and 11 as to Roberts and in their place render new orders exercising its discretion either to impose a gang enhancement of two, three, or four years or to strike the additional punishment for the enhancement in compliance with subdivision (g) of section 186.22.
14. Staying of Personal Use and Gang Enhancements Error
The jury found true the personal use (§12022.53, subd. (b)) principal use (§12022.53, subds. (b) & (e)(1)), and gang (§186.22, subd. (b)(1)) allegations as to Roberts on Count 6, the robbery of Boyd. The trial court imposed the principal use enhancement but stayed imposition of the personal use and gang enhancements. The court committed error.
As discussed above, the trial court was without authority simply to stay imposition of either the gang or personal use enhancements. The issue presented here is complicated by the true finding on the principal use allegation, the predicate of which is a true finding on the gang allegation. (See §12022.53, subds. (b) & (e)(1).)
Under these circumstances, the issue is whether after imposing both the 10 year personal use (§12022.53, subd. (b)) and the 10 year principal use (§12022.53, subds. (b)(&(e)(1)) enhancements, the trial court was required to stay execution of the personal use, rather than the principal use, enhancement in order to retain its discretion either to impose the applicable gang enhancement or strike the additional punishment therefor.
We resolve this issue in the affirmative. "Only one additional term of imprisonment under . . . section [12022.53] shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment." (§12022.53, subd. (f).)
On its face, the choice of the 10 year personal use or the 10 year principal use would not appear to implicate subdivision (f) of section 12022.53. Nonetheless, the appropriate choice becomes evident when this issue is viewed with reference the prohibition of dual use of the same factor to enhance a defendants sentence and the exception codified in subdivision (e)(2) of section 12022.53.
The gang finding was used to impose the principal use enhancement. This finding therefore ordinarily would be unavailable also to impose the gang enhancement. This is the case even if execution of the principal use enhancement were stayed, because the underlying principal use finding cannot be stricken (§12022.53, subd. (h).) Accordingly, no gang enhancement would be appropriate if the punishment for the principal use, rather than the personal use, findings were stayed.
On the other hand, a gang enhancement in connection with the principal use enhancement would be appropriate if the defendant personally used or discharged the firearm. Subdivision (e)(2) of section 12022.53, provides: A gang enhancement under section 186.22, subdivision (b)(1), "shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision [concerning principal firearm enhancements] unless the person personally used or discharged a firearm in the commission of the offense." (Italics added.)
Based on the above, it stands to reason the firearm "enhancement that provides the longest term of imprisonment" would be the principal use, rather than the personal use, enhancement. If the personal use finding were used to invoke the gang enhancement, instead of supporting execution of the personal use enhancement, then the principal use enhancement would result in the potential "longest term of imprisonment."
We find that the trial court, of course, retains discretion to strike the punishment for the gang enhancement (§186.22, subd. (g).) On remand, Roberts is free to make that request of the trial court and the trial court has the authority to entertain that request in its discretion.
Robbery, the offense in count 6, is both a serious felony (§1192.7, subd. (c)(19)) and a violent felony (§667.5, subd. (c)(9)). We conclude that where the offense constitutes both a serious and a violent felony, the harsher punishment is compelled.
We conclude Roberts sentence on count 6 therefore must be modified to the extent the trial court erred in staying imposition of the personal use and gang enhancements. We direct the clerk of the superior court to modify the abstract of judgment and impose the personal use enhancement; stay its execution; and impose the 10 year violent felony gang enhancement (§ 186.22, subd. (b)(1)(C)), rather than the 5 year serious felony gang enhancement (§186.22, subd. (b)(1)(B)).
15. $20 Court Security Fee Not Ex Post Facto Violation
Appellants contend imposition of the $20 court security fee violated the constitutional prohibition against ex post facto laws (U.S. Const., art. I, §10; Cal. Const., art. I, §9), because their crimes were committed prior to its operative date. This issue already has been resolved adversely to appellants position by our Supreme Court in People v. Alford (2007) 42 Cal.4th 749.
16. $20 Court Security Fee Applicable Where Sentence Stayed
In sentencing appellants, the trial court imposed a single $20 court security fee. On counts 2 and 3, the trial court stayed imposition of sentence (§654) as to each appellant and also on count 7 as to Roberts. Zelaya and Roberts concede the trial court erred in imposing one $20 court security fee and acknowledge such fee must be imposed on each conviction for which they were sentenced. They contend, however, no fee should be imposed on those counts in which sentencing was stayed. Respondent disagrees and contends the fee also applies to these counts.
The issue presented is whether the trial court committed unauthorized sentencing error by failing to impose that fee for the convictions in which the sentences were stayed? We answer in the affirmative based on the persuasive reasoning of the court in People v. Crittle (2007) 154 Cal.App.4th 368 [review den. Nov. 14, 2007] (Crittle).
In Crittle, the court explained: "Section 654, which prohibits multiple punishment for the same act or course of conduct and generally bars the use of a conviction for `any punitive purpose if the sentence on that conviction is stayed [citation], does not apply to a court security fee because that fee is not punishment. [Citation.]" (Crittle, supra, 154 Cal.App.4th at p. 370.)
17. $20 Court Security Fee Mandated for Each Conviction
We conclude the court should have imposed that fee for each conviction appellants suffered. (See, e.g., People v. Scoeb (2005) 132 Cal.App.4th 861, 865-866 [nine $20 court security fees, one for each conviction, proper where defendant pled guilty to nine separate offenses].)
In its brief, respondent contended the trial court should have imposed a $20 court security fee for each conviction Roberts and Zelaya sustained. In a subsequent letter brief, respondent extended this contention to include Jones.
The record reflects the trial court imposed a single $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each appellant. This was unauthorized sentencing error which may be addressed for the first time on appeal. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 354-355; People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.)
In plain, unequivocal language, subdivision (a)(1) of section 1465.8 mandates: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses . . . ." (§ 1465.8, subd. (a)(1), italics added.)
The aggregate fee amounts should be for: (1) Jones, $160, or $20 for each of his eight convictions; (2) Roberts, $220, or $20 for each of his eleven convictions; and (3) Zelaya, $180 for each of his nine convictions.
We therefore reverse the orders imposing a single $20 court security fee as to each appellant and remand the matters for the trial court to vacate these orders and enter in lieu thereof new orders imposing a $20 court security fee in the above specified total amounts.
18. No Cumulative Prejudicial Errors Shown
Roberts and Zelaya contend reversal of their respective judgments is necessary, because the cumulative effect of the demonstrated errors deprived them of due process of law (U.S. Const., 14th Amend.). Their position is unpersuasive.
Contrary to their claims, the cumulative effect of the established errors is minimal, and thus, reversal of the judgment is not warranted. (See, e.g., People v. Montiel (1993) 5 Cal.4th 877, 944 [relatively few number of errors although "not trivial, their significance to the actual fairness of defendants trial was minimal"]; People v. Frank (1990) 51 Cal.3d 718, 736 ["cumulative effect of the few . . . errors too slight to warrant reversal of the penalty judgment"].)
DISPOSITION
The judgments are modified and the clerk of the court is directed to modify the abstracts of judgment accordingly and forward copies of the corrected abstracts to the Department of Corrections as follows:
• Zelaya and Jones: Impose sentence on counts 2 and 3 and stay those sentences.
• Roberts: Impose sentence on count 7 and stay that sentence.
• Jones and Roberts: [Count 1] impose and stay the lesser 20 year (§12022.53, subd. (c)) and 10 year (§12022.53, subd. (b)) enhancements
• Roberts: [count 6] Impose the personal use enhancement and stay its execution. Impose the 10-year violent felony gang enhancement ( 186.22, subd. (b)(1)C) in lieu of the 5 year serious felony gang enhancement (§186.22, subd. (b)(1)(B)).
• All appellants: Vacate the orders imposing a single $20 court fee as to each appellant and enter in lieu thereof new orders imposing a $20 court security fee in the following amounts, Jones $160 [eight convictions], Roberts $220 [eleven convictions], Zelaya $180 [nine convictions]
In addition, the trial judge is directed as follows:
• Zelaya and Jones: Vacate orders staying imposition of gang enhancement on counts 4, 8 and 9 and exercise its discretion either to impose a gang enhancement of two, three, or four years or to strike the additional punishment for the enhancement in compliance with subdivision (g) of section 186.22.
• Roberts: Vacate order staying imposition of gang enhancement on counts 10 and 11 and exercise its discretion either to impose a gang enhancement of two, three, or four years or to strike the additional punishment for the enhancement in compliance with subdivision (g) of section 186.22.
The matters are remanded with directions to resentence appellants in accordance with the views expressed in this opinion. In all other respects, we affirm the judgments.
We concur:
RUBIN, J.
EGERTON, J.