Opinion
B157193
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. LEON MILES, Defendant and Appellant.
David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Leon Miles appeals from the judgment entered following a jury trial that resulted in his conviction of first degree murder (Pen. Code, § 187, subd. (a)); count 1), carjacking (§ 215, subd. (a); counts 2, 3), and kidnapping (§ 207, subd. (a); counts 4, 5) and findings that the murder was committed during the course of a carjacking, kidnapping, or robbery (§ 190.2, subd. (a)(17)) and, as to each count, the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and a principal was armed with a firearm (§ 12022, subd. (a)(1)) and a court finding that that he had suffered a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further section references are to the Penal Code unless otherwise indicated.
He was sentenced on count 1 for his murder conviction to life without possibility of parole (LWOP) based on the felony-murder special circumstance findings, plus concurrent terms of 10 years on each of the gang and firearm enhancements; on count 2 to a consecutive term of 10 years, or double the five-year middle term for his strike, for his carjacking conviction, plus consecutive terms of 10 years each for the gang and firearm enhancements; on count 3 to a concurrent term of five years on his carjacking conviction, plus concurrent 10-year and four-year terms, respectively, for the gang and firearm enhancements. On each of counts 4 and 5, the court imposed and then stayed a five-year term for the kidnapping conviction, plus the 10-year on the gang and four-year terms on the firearm enhancements.
Appellant contends the trial court committed prejudicial error by denying each of two motions under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748. He contends the court also committed prejudicial error in admitting the prior trial testimony of Juan Torres and excerpts from Torress videotaped statement. He further contends the court erred in denying his motion for a new trial. He urges the cumulative prejudice resulting from the assigned errors also mandates reversal of the judgment of conviction. Also, he contends that the felony-murder special circumstance findings must be set aside, because the jury could have made those findings without adhering to the unanimity and beyond a reasonable doubt standard requirements; the firearm enhancements must be stricken as unsupported by the jurys findings; and the gang enhancements must be stricken as violative of ex post facto principles.
Respondent contends resentencing is warranted for the following reasons: (1) to reduce the firearm enhancements to one year each, because the jury found true the principal armed firearm enhancement (§ 12022, subd. (a)(1)) and the court inadvertently imposed the term for the firearm use enhancement (§ 12022.5, subd. (a)(1)); (2) to run the gang and armed enhancements on count 1 consecutively, instead of concurrently, as mandated by law; and (3) to double the five-year terms on the count 3 carjacking conviction and on both kidnapping convictions (counts 4, 5) as required under the Three Strikes law if the strike is not dismissed as to a particular count.
Based on our review of the record and applicable law, we modify the felony-murder special circumstance findings by striking the reference to robbery; reverse appellants sentence; and remand the matter for resentencing. In all other respects, we affirm the judgment.
FACTUAL SUMMARY
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 that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) The following summary is based on this appellate standard of review.
On June 16, 1999, about 10:00 p.m., as they sat in Torress car, Torres and Maria Benevides were conversing when appellant, a gang member, and an accomplice approached. After forcing Torres, a rival gang member, at gunpoint into the back seat, appellant got into the drivers side, and his accomplice took the front passenger seat. While the accomplice held the gun at Torres and Benevides, who was also in the back, appellant drove off. When Torres begged to be set free, appellant responded, "All we want you to do is call your people." The accomplice told him to be quiet or he would "blast" him. Benevides handed over her jewelry.
Both Benevides and Torres pleaded for their release as the car proceeded into what Torres realized was hostile gang territory. As Torres grabbed at the gun, the gun went off. Appellant stopped the car and joined the struggle.
Appellant fled. Los Angeles Deputy Sheriff Joseph Iberri was on vehicle patrol around 11:00 p.m. when he saw Torres struggling with a male. Torres flagged down the passing Sheriffs car and said, "They shot my girlfriend." Benevides had died from a gunshot wound to her abdomen.
Around 11:00 p.m., Torres was taken to a nearby duplex where appellant had been spotted and identified appellant during a field show up. Although appellant was wearing different clothing, Torres was "100 percent" certain.
Torres identified the black hooded sweatshirt found in a bedroom as the one appellant wore and which was torn during the struggle. Gracie Love, who shared the residence with appellants girlfriend, saw appellant wearing the sweatshirt as he entered shortly before the arrival of the police. Torres also identified the shoes appellant wore during the attack.
Torres subsequently identified appellant from a photographic lineup. He also identified him as the driver at the previous trial of this case.
In a videotaped police interview, Torres described the perpetrators and displayed the injuries he sustained during the struggle.
Appellant relied on mistaken identity and alibi defenses. Maximo Navarro, a close friend of Torres and a former member of his gang, testified that Torres had admitted he was unable to view the abductors faces, which were covered, and that he falsely identified appellant and his codefendant, both of whom were rival gang members, because the police threatened to charge Torres with the murder. Torres, however, denied that he ever spoke with Navarro about the incident. Yusuf Davis, appellants lifelong friend and fellow gang member, testified that from about 7:30 p.m. to 9:00 p.m., appellant was playing dice at the duplex, and that between 9:00 p.m. and 10:00 p.m. the two of them were arguing about Daviss winnings. The police arrived shortly after 10:00 p.m.
During a police interview a day after the murder, appellant stated he was at a barbeque all day and had left just before being arrested. He never mentioned playing dice at the duplex or any argument with Davis.
DISCUSSION
1.No Wheeler Violation Shown
Appellant contends the trial court erred in denying two Wheeler motions, because the record demonstrates the defense made a proper prima facie showing that the prosecutor improperly used peremptory challenges to excuse prospective Black jurors based on group bias alone. We find appellant has failed to carry his burden.
Initially, we point out appellant has failed to preserve his claims of error for appellate review, because he neither made his own Wheeler motions (see, e.g., People v. Boyette (2002) 29 Cal.4th 381, 422; People v. Jenkins (2000) 22 Cal.4th 900, 993, 997 P.2d 1044), nor did he join in the two Wheeler motions which were made by his codefendant, Jeremy Myles. (See, e.g., People v. Miranda (1987) 44 Cal.3d 57, 77-78, 241 Cal. Rptr. 594, 744 P.2d 1127.)
Moreover, as we now demonstrate, appellants counsel was not ineffective for failing to make or join in the unsuccessful Wheeler motions. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 651-652; People v. Ochoa (1998) 19 Cal.4th 353, 463, 966 P.2d 442.)
The initial Wheeler motion was made after the prosecutor exercised his 17th peremptory challenge to excuse juror 0562. Juror 0562, a female Black, resided in Lakewood and previously had served as a juror in a rape case which ended in a verdict. She was married and had four grown children. She worked as a special education teachers assistant, and her husband was employed as a special education teacher. Although she had been a victim of attempted rape and had suffered two vehicle and two residential burglaries, she had never been called to testify in court regarding those crimes and denied such matters would affect her in this case. She also denied that her relationship with her brother-in-law, who had been a prosecutor for over twenty years in the Los Angeles County District Attorneys Office (DAs office), or with her son-in-law, who had been convicted recently of insider trading, would influence her.
Myless attorney argued juror 0562 was a "neutral person" and the People had used a disproportionate number of peremptory challenges against Blacks. The court denied the motion after finding no prima facie showing of discriminatory challenges had been made. The court noted that of the Peoples 13 peremptory challenges, the prosecutor had exercised seven against individuals who appeared to be Black; the defense had excused one; and the court had excused four for cause. It further noted that two prospective jurors who appeared to be Black remained on the panel and that the venire did not appear to have "an inordinately small number of [Blacks]."
The renewed Wheeler motion was made after the prosecutor exercised its 18th peremptory challenge to excuse juror 6783, a female Black. Juror 6783 resided in Lynwood. She was married with three minor children, and she did not have any prior jury experience. She had been a victim in a drunk driving accident, but no one had been charged. She was employed as a family support officer. Her position was formerly under the auspices of the DAs office. A cousin was a correctional officer. She stated that her employment, her relationship with her cousin, and her car accident experience would not affect her outlook in this case. In response to a question by Myless attorney, she stated she had not formed any relationships with attorneys in the DAs office. When asked by the prosecutor, she stated she had no animosity toward the DAs office based on the change of authority over her job.
Myles attorney argued that juror 6783 was a "neutral" female Black. The court denied the motion for the reason that a prima facie showing had not been made "just on the numbers[.]" The court noted the prosecutor had not excused a Black since juror 0562 and had used only eight out of 18 peremptory challenges against Blacks.
"Peremptory challenges are permissible only if they are based on specific bias," namely "a bias relating to the particular case on trial or the parties or witnesses thereto." (People v. Tapia (1994) 25 Cal.App.4th 984, 1013.)
"It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (People v. Wheeler, supra, 22 Cal.3d [258] at pp. 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89, 90 L. Ed. 2d 69, 106 S. Ct. 1712 . . . .)" (People v. Turner (1994) 8 Cal.4th 137, 164, 878 P.2d 521, citation omitted.)
"We presume that `a prosecutor uses his peremptory challenges in a constitutional manner. [Citation.] The defendant bears the burden to show, prima facie, the presence of purposeful discrimination. [Citation.] If he succeeds, the burden shifts to the prosecutor to show its absence. (People v. Alvarez (1996) 14 Cal.4th 155, 193, 926 P.2d 365 . . . .) In order to establish a prima facie case of group bias, a litigant must raise the issue in a timely fashion, make as complete a record as feasible, establish that the persons excluded are members of a cognizable class, and show a `"strong likelihood" of group rather than individual bias. (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154, 824 P.2d 1315 . . ., italics omitted; Wheeler, supra, 22 Cal.3d at p. 280.) We give great deference to the trial court in distinguishing bona fide reasons from sham excuses. (People v. Turner[, supra,] 8 Cal.4th 137, 165 . . .; Wheeler, supra, at p. 282.)" (People v. Boyette, supra, 29 Cal.4th 381, 421-422.)
"The trial courts determination that no prima facie showing of group bias has been made is subject to review to determine whether it is supported by substantial evidence. (People v. Alvarez, supra, 14 Cal.4th at pp. 196-197.) We examine the record of the voir dire and accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand. (People v. Howard, supra, 1 Cal.4th at p. 1155.)" (People v. Jenkins (2000) 22 Cal.4th 900, 993-994, 997 P.2d 1044, fn. omitted.)
"If the trial court finds that the defendant has established a prima facie case, the burden shifts to prosecution to provide "a race-neutral explanation related to the particular case to be tried" for the peremptory challenge. (People v. Fuentes [(1991)] 54 Cal.3d [707] at p. 714; Batson v. Kentucky, supra, 476 U.S. at p. 97.) However, the explanation need not be sufficient to justify a challenge for cause. (Batson v. Kentucky, supra, 476 U.S. at p. 97; see People v. Johnson (1989) 47 Cal.3d 1194, 1216, 255 Cal. Rptr. 569, 767 P.2d 1047.)
"There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner. (People v. Clair (1992) 2 Cal.4th 629, 652, 828 P.2d 705.) We give great deference to the trial court in distinguishing bona fide reasons from sham excuses. (People v. Fuentes, supra, 54 Cal.3d at p. 714; People v. Wheeler, supra, 22 Cal.3d at p. 282.) Additionally, "if the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm." (People v. Howard, supra, 1 Cal.4th at p. 1155, quoting People v. Bittaker (1989) 48 Cal.3d 1046, 1092, 259 Cal. Rptr. 630, 774 P.2d 659.) (People v. Turner[, supra,] 8 Cal.4th 137, 164-165; accord, People v. Crittenden (1994) 9 Cal.4th 83, 117, 885 P.2d 887.)" (People v. Irvin (1996) 46 Cal.App.4th 1340, 1350-1351, italics added.)
As this court previously stated, to make a prima facie showing, "the defendant must focus on the particular circumstances of the specific peremptories in question. In other words, a claim that all the challenged prospective jurors were Black and either indicated that they could be fair and impartial or in fact favored the prosecution is insufficient to establish a prima facie showing. . . . A defendant may not simply rely upon exclusion of the group-associated prospective jurors in establishing "a strong likelihood" of removal because of group bias. [Citation.] Rather, a defendant should underscore "other relevant circumstances, such as prospective jurors characteristics, the nature of the prosecutors voir dire, or the prospective jurors answers to questions."" (People v. Irvin, supra, 46 Cal.App.4th 1340, 1352, citations omitted.)
In this instance, the sole basis of both Wheeler motions was that the prosecutor used his peremptory challenges in a disproportionate manner to excuse two prospective jurors who were both Black and appeared to be "neutral." This is clearly an insufficient showing. Moreover, the trial court made it clear on the record that the prosecutor did not in fact exercise a "disproportionate number" of peremptory challenges against Blacks and did not exclude "most or all" Blacks from the venire. (People v. Wheeler, supra, 22 Cal.3d at p. 280.) Additionally, there were specific reasons for excusal of each juror which were group bias neutral.
2. Finding of Witness Unavailability Supported by Ample Evidence
Appellant contends the trial court erred in admitting Torress prior trial testimony based on its finding that he was unavailable. We find ample evidence to support that finding.
Torres testified as the primary witness for the People at the first trial of appellant and Myles. On December 21, 2000, a mistrial was declared based on jury deadlock.
About a day before the retrial was to begin on February 28, 2001, Terry Cagnolatti, a DA investigator, learned that Torres was incarcerated in Mexico. After dismissal of the matter and the rearraignment of appellant, trial was rescheduled for April 30, 2001.
Meanwhile, the People took the following steps to secure Torress availability for trial. Cagnolatti verified with the San Diego DAs office that Torres was incarcerated in the La Mesa State Penitentiary in Mexico and confirmed with United States Deputy Marshal Don Vasques that Torres was not in the United States. On April 19, 2001, Cagnolatti obtained documentation regarding Torress immigration status through the Immigration and Naturalization Service (INS). The prosecutor initiated diplomatic procedures with the Office of International Affairs under the Mutual Legal Assistance Treaty (MLAT) between Mexico and the United States for the transfer of Torres. On April 20, 2001, the United States Department of Justice made a formal request for such transfer to the Mexican authorities.
On April 27, 2001, the People filed a motion in limine for admission of Torress prior trial testimony.
During the May 1, 2001, hearing, the court noted that the Peoples position was that Torres was unavailable, because he was incarcerated in Mexico and he was not a United States citizen. Appellant objected that the prosecution had failed to undertake any "reasonable efforts" to contact Torres or his attorney to ascertain whether Torres could be made available to testify, and if so, when. Following the testimony of Cagnolatti, the trial court tentatively found Torres was unavailable (Evid. Code, § 240, subd. (a)(4)) for the reasons urged by the People and that his prior trial testimony was admissible (Evid. Code, § 1291). The court did not make any finding regarding whether the People were diligent in attempting to secure Torress availability.
Trial was rescheduled for October 24, 2001.
In the interim, the People exerted the following efforts to secure Torress attendance at trial. When Vasquez met Torres in Mexico, he verified that Torres was a Mexican citizen and confirmed that he was willing to return to the United States to testify. In June or July 2001, the Mexican authorities denied the first formal request for the transfer of Torres. After denying a second formal request, the Mexican authorities suggested the People could attempt to arrange under section 7 of the MLAT for taking Torress testimony in Mexico. Vasquez continued his efforts to secure Torres up to the trial date.
On October 24, 2001, appellants new attorney objected to the use of Torress prior trial testimony on the ground that if Torres could not be brought to the United States, his testimony should be taken and videotaped in Mexico to enable the jury to observe his demeanor. Following the testimony of Vasquez, the court found Torres was unavailable and his prior trial testimony was admissible, because Torres did not appear to be subject to the courts process (Evid. Code, § 240; People v. Denson (1986) 178 Cal. App. 3d 788, 224 Cal. Rptr. 63).
We first conclude that appellant has forfeited his claim of error based on the confrontation clause (U.S. Const., 6th Amend.) by failing to preserve it with a timely objection. (See, e.g., People v. Hart (1999) 20 Cal.4th 546, 615, 976 P.2d 683; People v. Alvarez (1996) 14 Cal.4th 155, 186, 926 P.2d 365.)
We further conclude the record contains ample evidence establishing Torres was unavailable in the constitutional and statutory sense. (See, e.g., People v. Cromer (2001) 24 Cal.4th 889, 892, 896-897; People v. Louis (1986) 42 Cal.3d 969, 982-983, 232 Cal. Rptr. 110, 728 P.2d 180; Evid. Code, §§ 240, subd. (a)(4), 1291, subd. (a)(2).)
It is uncontroverted that Torres is not a United States citizen and that he was incarcerated in Mexico at the time of the retrial. The evidence presented reflects the People exercised due diligence and made good faith efforts to secure Torress appearance at trial. The fact that the Mexican authorities twice denied the Peoples formal request for his transfer supports an inference that any further efforts also would have been unsuccessful, and thus, futile and excused. Additionally, there is no basis in the record to support an inference that, assuming arguendo the People successfully invoked section 7 of the MLAT and that videotaping was authorized, they would have been able to arrange for the taking and videotaping of Torress testimony in time for the retrial.
In sharp contrast to this factual scenario is that in People v. Sandoval (2001) 87 Cal.App.4th 1425. In Sandoval, the People sought to admit the preliminary hearing testimony of a Mexican citizen witness who was illegally in the United States and was subsequently deported. The witness was agreeable to testify but needed money to travel to Mexico City to obtain a passport and visa. The Sandoval court concluded that the Peoples failure to provide him with the $ 100 necessary to make the trip undermined the trial courts finding that he was unavailable. The Sandoval court noted the options available to the People under the MLAT and pointed out the People took no other steps to secure his presence at trial. (Id. at pp. 1435, 1438-1444; cf. People v. St. Germain (1982) 138 Cal. App. 3d 507, 517, 187 Cal. Rptr. 915 [federal subpoena process (28 U.S.C. § 1783) available to obtain presence of "a national or resident of the United States who is in a foreign county"].)
3. Admission of Excerpts from Torress Videotaped Statement Proper
Appellant contends admission of the excerpts from Torress videotaped police interview violated Evidence Code section 1370 [section 1370] and his right to confrontation (U.S. Const., 6th Amend.) We find the admission of such excerpts was not an abuse of discretion.
On October 24, 2001, prior to commencement of trial proceedings, the People moved under section 1370 for admission of Torress statement which was videotaped at the police station several hours after the shooting. Appellants attorney objected that the statement, which was not played during the first trial, was unreliable, because Torres had not been subject to cross-examination and the videotape merely recorded what Torres had told police earlier in the interview. No ruling was made at this time.
On October 29, 2001, after having reviewed the videotape, a corresponding transcript, and Torress prior trial testimony and hearing argument of counsel, the court tentatively ruled that only those portions of the statement regarding Torress injuries would be admissible under section 1370.
On November 5, 2001, the court ruled that it would allow admission only of three excerpts, which consisted of less than three transcript pages, of Torress statement. Those excerpts contained Torress description of how he was attacked in the car by appellant and his accomplice and depicted Torres displaying his injuries to his interviewers. These segments of the videotape were played to the jury over appellants objection.
Initially, we conclude that the passing reference to the term "confrontation" by appellants counsel was insufficient to raise an objection based on the Sixth Amendment Confrontation Clause and thus preserve the issue for appellate review. (See People v. Alvarez, supra, 14 Cal.4th at p. 186; see also, People v. Dennis (1998) 17 Cal.4th 468, 529, 950 P.2d 1035.)
We further conclude that, in any event, admission of the challenged excerpts was proper. The requirements of section 1370 were clearly met, and thus, no abuse of discretion occurred. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 724-725, 996 P.2d 46.) As we demonstrated, ante, Torres was unavailable as a witness at trial. Also, the statement was made relatively close in time to the infliction of the physical injuries and purported to describe and explain the infliction of those injuries; and it was made to law enforcement officers and electronically recorded. (§ 1370, subd. (a)(1)-(a)(3), (a)(5).) Moreover, the statement was made under circumstances indicating its trustworthiness. Its existence clearly was not a surprise to appellant since it had been disclosed and discussed during the first trial, and several days before the retrial and 12 days prior to its introduction, the prosecutor raised the issue of its admissibility. (See § 1370, subd. (c); People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1369-1373 [notice under Evidence Code section 1360 must be given prior to swearing of the jury, i.e., start of trial].) The statement was made in anticipation of criminal proceedings in which Torres, as the victim, was interested. The statement was made within a few hours of the shooting and corroborated by Deputy Sheriff Joseph Iberri, who testified that he came upon Torres fighting with appellant, which observations he recorded. Torres had no motive to lie about how the attack took place and his injuries. (§ 1370, subds. (a)(4), (b).)
Additionally, admission of these excerpts was not constitutionally infirm under the Confrontation Clause of the Sixth Amendment. As we have demonstrated, not only was Torres unavailable but there was ample indicia of reliability attached to the excerpts of his videotaped statement shown to the jury. (See, e.g., Idaho v. Wright (1990) 497 U.S. 805, 814-815, 820-826, 111 L. Ed. 2d 638, 110 S. Ct. 3139; People v. Zapien (1993) 4 Cal.4th 929, 957, 846 P.2d 704; see also, People v. Hernandez (1999) 71 Cal.App.4th 417, 424.)
Recently, in People v. Kons (2003) 108 Cal.App.4th 514, the court concluded section 1370 was unconstitutional as applied in that admission of the challenged statement abridged the defendants right to confrontation "because the statement itself did not contain the requisite particularized guarantees of trustworthiness to overcome its presumed unreliability[,]" and its admission was not harmless beyond a reasonable doubt. (Id . at pp. 520, 524, 525.)
We conclude Kons is factually distinguishable. In Kons, the dubious identification "[statement] was made at least a day later (and possibly two days later [after the incident]) under detailed questioning from the police." (Id . at p. 523.) Kons concluded that the victim, Johnson, thus "had time to collect himself and come up with a story" and that upon the arrival of the police, he "was apparently visiting with friends, who may or may not have been able to coach him about his statement." (Id. at p. 524.) This statement was the only evidence at trial identifying defendant as the shooter. (Id. at p. 517.)
In this case, appellant made his videotaped statement on June 17, 1999, at 5:25 a.m., which was about six hours after the shooting which occurred about 11:00 p.m. and there is nothing in the record to support an inference that he might have been coached or prompted by police or anyone else with respect to that portion shown to the jury.
We have reviewed the brief segments of the videotaped statement shown to the jury as well as the corresponding short transcript excerpts thereof, which total just over three pages. The sole subject was Torress injuries sustained during his struggle with the driver, i.e., the nature of his injuries and how he sustained them. Thus, the potential prejudicial impact of the admitted statement portion, which pertained to a tangential matter, is quite small.
Moreover, unlike Kons, Torres did not identify the driver, nor did he mention appellant. Rather, the identity of appellant as the driver was established by other evidence. During the field show up of appellant, who had been detained at a nearby duplex shortly after the incident, Torres was "100 percent certain" in his identification of him as the driver. Torres also recognized appellants shoes and the black hooded sweatshirt found in a bedroom. Love identified the sweatshirt as the one appellant wore shortly before the police arrived. Torres also identified appellant as the driver from a photographic lineup, and in court during the prior trial.
Additionally, and most importantly, in contrast to Kons, appellants attorney was afforded the opportunity—and exercised it fully—to cross-examine Torres in the first trial. During direct examination, Torres described the struggle which resulted in the injuries depicted in the videotaped segments shown to the jury. Appellants attorney specifically examined Torres regarding such struggle. He also examined Torres regarding the videotape.
4. Felony-Murder Special Circumstances Finding Error Harmless
Appellant contends the felony-murder special findings must be set aside, because the jury could have made the findings without adhering to the unanimity and proof beyond a reasonable doubt standard requirements. We agree the felony-murder special circumstances finding was erroneous with respect to the felony of robbery but conclude such error was harmless in light of the fact the finding on the underlying felonies of carjacking and kidnapping were proper.
The jury was instructed on the substance offenses of carjacking, kidnapping, and robbery separately and in conjunction with the murder charge. They were also instructed that in order to find true the special circumstance allegation, they had to find unanimously "that the murder occurred during the commission or attempted commission of the crime of carjacking, kidnapping or robbery" and that they "must decide separately each special circumstance[.]" (CALJIC Nos. 8.80.1, 8.81.17, italics added.) The verdict form required the jury to determine whether the murder was committed "while the defendant was engaged in the commission of the crime of carjacking or kidnapping or robbery." (Italics added.) Also, during rebuttal, the prosecutor addressed the elements of the special circumstance findings.
The thrust of appellants position is that the instruction on the special circumstance findings, when viewed in conjunction with the verdict form and the prosecutors argument, gave rise to the possibility that the jury found the special circumstance allegations true based on "something less than unanimous agreement and proof beyond a reasonable doubt." Specifically, he argues the instruction was rendered confusing, because of the reference first simply to "the crime" followed by the three "crammed together" references to carjacking, kidnapping, and robbery.
We disagree. Any ambiguity or uncertainty regarding the instruction on the special circumstance findings was harmless in view of the fact that the jury needed to find only one of the three felonies was committed in order to return a true finding and the jury returned verdicts of guilty on the substantive offenses of carjacking and kidnapping. (See, e.g., People v. Lewis (2001) 25 Cal.4th 610, 654; see also, People v. Marshall (1997) 15 Cal.4th 1, 37-38, 931 P.2d 262.) We conclude, however, that the felony-murder special circumstance finding must be modified by striking the reference to robbery for the reason that the jury found appellant not guilty of robbery.
5. New Trial Motion Properly Denied
Appellant contends the trial court abused its discretion in denying his motion for a new trial based on his claim that Torress prior testimony was erroneously admitted. We find neither error nor abuse of discretion.
Inasmuch as we have already disposed of his claim adversely to his position ante, and he has raised no further points in this regard, we deem it unnecessary to revisit this issue. (See, e.g., People v. Cash (1959) 52 Cal.2d 841, 845-846, 345 P.2d 462.)
6. Cumulative Prejudice Quite Small
Appellant alternatively contends that reversal of the judgment of conviction is warranted on the cumulative effect of the errors committed. We disagree. Except for the one harmless error found, the remaining above assigned claims of errors were unproven. Accordingly, the cumulative prejudice from these assigned errors is quite small. (See, e.g., People v. Boyette, supra, 29 Cal.4th 381, 467-468; People v. Beeler (1995) 9 Cal.4th 953, 994, 891 P.2d 153.)
7. Remand for Resentencing Warranted
With respect to the firearm enhancements, we agree with appellant that they must be stricken. The record reflects the jury was instructed with respect to both the principal armed with a firearm (§ 12022, subd. (a)(1)) and the intentional firearm use (§ 12022.53, subds. (c), (d)) enhancements. (CALJIC Nos. 17.15, 17.19.5.) Pursuant to the verdict forms, the jury was directed to find true or not true the separate firearm intentional use and the principal armed allegations as to each count. The jury found true the principal armed and not true the firearm intentional use allegations.
Through inadvertence, however, the verdict forms mistakenly referred to section 12022.5, subdivision (a)(1), which pertains to the personal use firearm enhancement, instead of section 12022, subdivision (a)(1), which pertains to the armed enhancement. Based on this erroneous reference, the trial court mistakenly imposed enhancement terms under section 12022.5, subdivision (a)(1). Accordingly, on remand, the appropriate disposition is for the trial court to strike the terms erroneously imposed and substitute therefor the correct one-year term for each of the principal armed enhancements. (§ 12022, subd. (a)(1).)
With respect to the gang enhancements (§ 186.22, subd. (b)(1)), we agree with appellants position that the 10-year term imposed for those enhancements is improper and that the gang enhancements must be stricken as violative of ex post facto principles.
On June 16, 1999, when the subject crimes were committed, the appropriate term was "one, two, or three years at the courts discretion." (Former § 186.22, subd. (b)(1).) In March 2000, the gang enhancement statute was amended to provide more severe penalties. (§ 186.22, subd. (b)(1); see also Prop. 21, approved March 7, 2000.) In February 2002, the trial court apparently relied upon the amended statute in imposing the 10-year gang enhancement on each count. (§ 186.22, subd. (b)(1)(C).) (See People v. Herrera (2001) 88 Cal.App.4th 1353, 1358, fn. 2.)
Such improper term impermissively increased appellants punishment retroactively and was thus violative of the proscription against ex post facto laws. (See, e.g., People v. Snook (1997) 16 Cal.4th 1210, 1220-1221, 947 P.2d 808; People v. Cuevas (1980) 111 Cal. App. 3d 189, 197-200, 168 Cal. Rptr. 519). The appropriate disposition is not to strike the gang enhancements. Rather, it is to remand the matter for resentencing on such enhancements with directions to the trial court to exercise its discretion to impose the one-, two-, or three-year term as to each enhancement.
With respect to the sentencing choice of concurrent terms on the firearm and gang enhancements on count 1, such choice resulted in an unauthorized sentence. Both enhancement statutes expressly dictate that such terms must be imposed in addition and consecutive to the principal term. (Former § 186.22, subd. (b)(1); § 12022, subd. (a)(1); see, e.g., People v. Herrera, supra, 88 Cal.App.4th at p. 1358; People v. Savedra (1993) 15 Cal.App.4th 738, 746-747.) Accordingly, on remand, the trial court is directed to impose these enhancement terms consecutively.
Finally, with respect to the principal terms on the count 3 carjacking conviction and both kidnapping convictions (counts 4, 5), the trial court imposed unauthorized sentences in that it failed to apply the Three Strikes law, which requires doubling of the principal term based on appellants single strike, unless the court exercises its discretion to dismiss the strike as to one or more of these counts and states its reasoning therefor in the minutes. (See, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 505-508, 530-531, 917 P.2d 628; see also, People v. Garcia (1999) 20 Cal.4th 490, 503-504, 976 P.2d 831; People v. Williams (1998) 17 Cal.4th 148, 159, 948 P.2d 429.) We therefore direct the trial court, on remand, to exercise its discretion to decide whether to dismiss the strike as to one or more counts, and if the strike is dismissed, to state the reason therefor in the minutes as to each count, and to resentence appellant accordingly.
DISPOSITION
The sentence is reversed and the matter remanded for resentencing in accordance with the views expressed in this opinion, and the felony-murder special circumstance finding is modified by striking the reference to robbery. In all other respects, the judgment is affirmed.
We concur: VOGEL (C.S.), P.J. EPSTEIN, J.
The first trial ended in a mistrial.