Opinion
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Riverside County No. RIF128475, Robert G. Spitzer, Judge. Affirmed.
McINTYRE, J.
Riverside police arrested Thomas Edward Nesby and Quincy Earl Stoot in connection with two residential burglaries committed in Perris, California, on February 1, 2006. The second amended information charged Nesby and Stoot with two counts of residential burglary (counts 1 and 2), two counts of robbery in concert (counts 3 and 4), dissuading a witness (count 5), and actively participating in a criminal street gang (count 6), plus allegations that they were armed during the burglary in count 1, personally used a firearm in counts 3 and 4, and committed the crimes alleged in counts 1 through 5 for the benefit of a criminal street gang. Codefendant Sharlan Myles Hancock was charged and acquitted in counts 1 through 4. Nesby's brother, Leroy Waddles, was tried separately.
Following a joint trial in which Stoot represented himself, the jury convicted Nesby of counts 1 and 6, acquitted him on counts 2 through 5, and found true the street gang enhancement alleged in count 1. The court sentenced Nesby to 11 years in prison, but suspended execution of that sentence and placed him on probation after he waived 843 days of pre-sentence credit and agreed to serve 365 days in county jail.
The jury convicted Stoot of counts 1 through 4 and 6, acquitted him on count 5, and found true all the enhancement allegations. The court sentenced Stoot to eight years plus 25 years to life.
On appeal, Nesby argues: (1) the court erred in denying his request to instruct the jury on the defense theory in count 1; (2) the court violated constitutional protections against ex post facto laws by sentencing him to the upper term in count 1; and (3) even if the statutory sentencing scheme did not violate ex post facto protections, the court abused its discretion in sentencing him to the upper term. Stoot contends: (1) the court abused its discretion by denying his request for severance; (2) there is insufficient evidence to support the finding that he was a member of a criminal street gang within the meaning of Penal Code, section 186.22 (undesignated statutory references are to this code); and (3) in any event, the court abused its discretion in denying his request to strike the enhancement. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Rosa Arreola returned from work the evening of February 1, 2006, to find that her home on Old Elsinore Road had been burglarized. Jewelry, cash and coins, a video camera, DVD player and videos were missing from the house. Arreola called the police. With the assistance of law enforcement, Arreola identified and recovered some of the jewelry at a pawn shop in Perris. Nesby later admitted that he pawned the jewelry.
Florinda Herrera's daughter called police after a man Herrera later identified as Stoot forced his way into her house and demanded money at around 11:00 o'clock on the morning of February 1, 2006. Herrera screamed and pushed her way outside past three men who were standing on the stairs. Stoot pulled out a gun and motioned her back into the house. A second man joined them inside. The men told Herrera to keep her hands up and pushed her towards the wall. They took $20.00 from her daughter's purse and foreign currency from a ceramic dish. Alerted that the neighbors knew what was happening, the men fled. Herrera's daughter saw them drive off in a dark purple PT Cruiser.
Riverside Police Detective Laura Riso was dispatched to a residence in Riverside at approximately 12:45 p.m. on February 1, 2006, to check the status of a purple PT Cruiser. She left after waiting two hours for 17-year-old Thelma Mayfield to return home with the car. Riso returned to the residence later in the afternoon when Mayfield's mother called to report that her daughter had returned with the car. Mayfield told her mother that she had been carjacked and beaten up. She provided additional information to Detective Riso, stating that she had been accosted at a gas station by three black men she did not know. The men forced her to drive them to various locations near Perris. Mayfield changed her story when interviewed later by Riverside County Sheriff's Detective Bruce Blanck. On that occasion she admitted that she knew Hancock, and stated that Stoot offered her $10 worth of gas to drive him to Moreno Valley. Mayfield detailed her role as driver for Stoot, Nesby, Hancock and Waddles on their morning crime spree. She testified at trial under a grant of immunity.
Nesby, Stoot and Hancock gave statements to Detective Blanck after their arrests. Nesby and Stoot also testified at trial. There was conflicting evidence regarding the roles played by the various participants and who held the gun or guns.
Riverside County Sheriff's Deputy George Reyes testified as the prosecution's gang expert. The prosecution also introduced records from the sheriff's detention center as evidence of Stoot's and Nesby's gang affiliation.
DISCUSSION
I. Nesby's Appeal
A. Failure To Instruct on the Defense Theory:
Count 1 alleged that Nesby, Stoot and Hancock burglarized the Arreola home on Old Elsinore Road by unlawfully entering "with intent to commit theft and a felony." Nesby admitted to Detective Blanck that he entered the house and took some candy bars. Citing that evidence, defense counsel argued that Nesby did not enter the home with the specific intent to steal and might have just wanted to see what was happening. The trial court denied Nesby's request for instructions on theft by larceny and trespass, stating that theft was not a lesser included offense of burglary and there was insufficient evidence of trespass. However, the court gave the standard instructions on burglary, which informed the jury that: (1) the prosecution had to prove that Nesby intended to commit the theft at the time he entered the residence; and (2) Nesby "[did] not need to have actually committed the theft as long as he entered with the intent to do so." The jury rejected Nesby's argument that he lacked intent to steal when he entered the residence on Old Elsinore Road, and found him guilty of burglary.
Nesby concedes that there is no state or federal constitutional right to instructions on these lesser related offenses. (Hopkins v. Reeves (1998) 524 U.S. 88, 90-91; People v. Birks (1998) 19 Cal.4th 108, 117 (Birks).) He nonetheless argues that he is entitled to reversal on count 1 because "rejection of a defendant's request for a jury instruction on a lesser-related offense may act as an unconstitutional restriction on the defendant's right to present a defense." There is no merit in this argument.
Ordinarily, the court must instruct sua sponte on general principles of law that are relevant to the issues raised by the evidence. (People v. Carter (2003) 30 Cal.4th 1166, 1219.) The court is also obligated to instruct on the defense theory on request "if it is supported by substantial evidence, i.e., if a reasonable jury could conclude the particular facts underlying the instruction existed." (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450.) However, under Birks, supra, 19 Cal.4th 108, "trial courts can no longer instruct juries on... related, but not included, offenses without the prosecutor's permission." (People v. Martinez (2002) 95 Cal.App.4th 581, 577.) Any argument that Birks was wrongly decided or that its rule regarding lesser related offenses deprives defendant of the ability to present a defense "must be presented to the Supreme Court. It has found it inappropriate to permit trial courts to modify the charging process by instructing on related, but uncharged offenses." (Ibid.) We, like the Martinez court must follow the rules established by the Supreme Court. (Auto Equity Sales, Inc. v. Super. Ct. (1962) 57 Cal.2d 450.) Accordingly, we conclude that the court did not err in denying Nesby's request for instructions on larceny by theft or trespass.
While there was some evidence, albeit minimal, suggesting that Nesby did not enter the residence on Old Elsinore Road with the intent to steal anything, the record demonstrates that any error in instructing the jury was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Mayfield testified that she saw Nesby with a gun at the first house. Moreover, when confronted with a receipt showing his name, address, and driver's license number, Nesby admitted to Detective Blanck that he was the person who pawned some of Arreola's jewelry. This evidence strongly supports the conclusion that Nesby participated fully in the burglary of the home on Old Elsinore Road.
B. Upper Term Sentence in Count 1:
The second amended information alleges that Nesby committed the charged crimes on February 1, 2006. The United States Supreme Court decided Cunningham v. California (2007) 549 U.S. 270, on January 22, 2007, holding that California's determinate sentencing law unconstitutionally authorized the trial judge to impose an upper term sentence based on facts not found by a jury beyond a reasonable doubt. (Id., at p. 274.) The California Legislature responded by amending section 1170, subdivision (b), effective March 30, 2007, to eliminate references to upper, middle and lower terms, and to delete the requirement that circumstances in aggravation be established by a preponderance of the evidence. (Stats. 2007, ch. 3, § 2, enacting Sen. Bill No. 40 (2007-2008 Reg. Sess.) Section 1170 subdivision (b) now provides that when a specific sentencing statute provides for three possible terms, the "choice of the appropriate term shall rest within the sound discretion of the court."
The court sentenced Nesby to the upper term of six years in count 1, stating: "The upper term is chosen in this case because of the sophisticated nature of the burglary, the fact that he was involved in this crime with a number of other individuals, and that he participated in other criminal activity on that same date with those same individuals freely and voluntarily."
Nesby challenges his six-year, upper term sentence in count 1 on three grounds. First, he notes that the crime was committed on February 1, 2006, and contends that application of the post-Cunningham statutory amendments violates ex post facto protections. He argues that given the jury acquitted him on all counts except counts 1 and 6, the jury would not have found the aggravating factors true beyond a reasonable doubt. Second, Nesby maintains that even if the amended sentencing scheme applied, the court abused its discretion in sentencing him to the upper term. Third, Nesby argues that the court erred in using his gang ties to impose the upper term in count 1 and a five-year consecutive term on the section 186.22, subdivision (b) enhancement. We reject these contentions.
People v. Sandoval (2007) 41 Cal.4th 825, 855-857 held that that post-Cunningham amendments to the determinate sentencing law could be applied to crimes committed before their enactment because they (1) did not substantially disadvantage a defendant and (2) were not " 'unexpected and indefensible.' " Nesby argues that Sandoval was wrongly decided, but we are bound by the decision. (Auto Equity Sales, Inc., supra, 57 Cal.2d 450.) Because we conclude there was no Cunningham error, we need not address Nesby's second argument that a jury would not have found the aggravating factors beyond a reasonable doubt.
We review the trial court's sentencing discretion under the amended section 1170, subdivision (b) for abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Here, the record makes clear that the court carefully considered Nesby's role in the events of February 1, 2006. Before imposing sentence, the court stated: "There's no question in the Court's mind that [you and your brother] were banging on the particular date in question when you went out with Mr. Stoot and sort of hijacked Mr. Hancock, and Mr. Hancock's friend or girlfriend, Ms. Mayfield, and sort of drug [sic] them along. [¶] There's also no question in the Court's mind but that compared to Mr. Stoot and your brother, you were a less serious person involved. That you went along with all of this...." The court exercised its discretion by imposing the 11-year sentence recommended by the prosecution, based on specific factors it listed on the record. Nesby omits the fact that the court further exercised its discretion by suspending execution of the sentence and placing him on five years' probation, in spite of the serious nature of his crime. We conclude that Nesby fails to demonstrate abuse of discretion.
Nesby raises the "dual use" argument for the first time in his reply brief. We will not consider a new claim of error made in the reply brief absent good reason for the failure to raise the point in the opening brief. (People v. Huber (1964) 225 Cal.App.2d 536, 545 (Huber).)
II. Stoot's Appeal
A. Denial of Stoot's Motion for Severance:
Stoot argues that he is entitled to reversal because the court denied the motion to sever his trial from the trial of his codefendants. We conclude that even if the court abused its discretion in denying Stoot's motion, there was no prejudice given the evidence of guilt provided by Stoot's statements and trial testimony.
Because joinder is preferred (see § 1098), "separate trials are usually ordered only ' "in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." ' " (People v. Box (2000) 23 Cal.4th 1153, 1195, quoting People v. Massie (1967) 66 Cal.2d 899, 917.) "Antagonistic defenses alone do not compel severance." (People v. Cummings (1993) 4 Cal.4th 1233, 1286.) We review the trial court's ruling on a severance motion for abuse of discretion. (People v. Maury (2003) 30 Cal.4th 342, 391.)
Stoot, representing himself, initially moved for severance on grounds he was ready to go to trial and trial with the other defendants would require a continuance in violation of his speedy trial rights. The court denied his motion without prejudice. The question of severance resurfaced in pre-trial motions. The prosecution indicated that it would introduce evidence from interviews with the three defendants, represented that the interview transcripts could not be redacted, and requested three separate juries. The court explained to Stoot that there were "three ways to go: One trial, where all the defendants are here; one trial, where we have three juries, or two juries; or three separate trials." Defendant stated that he wanted "whatever one will come faster...." After reviewing the interviews and transcripts, the court denied the prosecution's request for multiple juries. The court indicated that it would admonish the jury that a particular defendant's statements could be used only against that defendant.
During Detective Blanck's testimony concerning his interviews with the defendants, the court repeatedly gave the limiting instruction. The court repeated that instruction at the close of evidence, stating: "During the prosecution's case, you heard evidence that each defendant made an out-of-court statement before the trial to law enforcement investigators. You were instructed to consider that evidence only against the defendant who actually made the statement, not against any other defendant." On this record, we cannot say that the court abused its discretion in denying the motion for severance.
However, even if we were to conclude that the admonitions were inadequate and the court should have ordered severance, Stoot suffered no actual prejudice. In pre-trial interviews and trial testimony, Stoot essentially confessed to the crimes, stating: (1) he paid for Mayfield's gas in exchange for her driving him to Moreno Valley; (2) he collected the other participants in the crimes; (3) Waddles had a gun which Stoot fired in an alley; (4) Stoot and the others took the gun with them in Mayfield's car; (5) Stoot directed the others to a house on Old Elsinore Road where they could get more gas money; (6) after Hancock crawled through a back window and opened the door, Stoot entered and burglarized the residence; (7) he took the camcorder and a couple of CDs; (8) although Herrera identified Stoot as the man who forced his way into the second house, Stoot denied going inside because the people were at home; (9) Stoot testified that he was a former member of the Death Wish Crips, which was no longer in existence; and (10) he may have told a sheriff's deputy that he used the moniker "Gangster Quincy." The interview statements by codefendants Nesby and Hancock added little, if anything, to the prosecution case against Stoot.
B. The Gang Enhancement:
Stood challenges the section 186.22 gang enhancement on two grounds. First, he argues that the evidence is insufficient to support the jury's finding that he was a gang member or that the crimes were committed to benefit a street gang within the meaning of the statute. Second, in the event we uphold the jury finding, Stoot contends that the trial court abused its discretion in denying his request to strike the gang enhancement in the furtherance of justice pursuant to section 1385. Neither argument has merit.
When a criminal defendant challenges the sufficiency of the evidence on appeal, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft), citing People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Kraft, supra, 23 Cal.4th at p. 1053.) The same standard of review applies to cases in which the prosecution relies on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) " ' "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 defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (Ibid.) An appellate court will not second guess the trier of fact's assessment of witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Section 186.22, subdivision (b) reads in relevant part: "(1)... [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶]... [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years." Section 186.22, subdivision (f) describes a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated [in the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
Stoot contends there is insufficient evidence to show that the Death Wish Crips was a viable, ongoing organization at the time of the charged offense. Specifically, he asserts there was no evidence to contradict his testimony and statement to Detective Blanck that he was associated with the Death Wish Crips of Moreno Valley in the past, but the organization no longer existed. Stoot cites the codified legislative findings in support of the Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.) which "make[] clear that the focus of the act is on existing gangs that pose a present danger to citizens", and argues that the evidence fails as a matter of law to show that the Death Wish Crips was an ongoing organization that posed a present danger.
Contrary to Stoot's argument, testimony by the prosecution's gang expert contradicts Stoot's testimony concerning the viability of the Death Wish Crips. Based on his knowledge of the local gang culture and other records in this case, Deputy Reyes testified that the Death Wish Crips started in the early 1990's and had between 15 and 20 documented members in its heyday. He stated, based on his experience, that it was common for a gang that was shrinking in size to ally with a different gang that had more members. Reyes noted that Stoot admitted being a member of the Death Wish Crips when he arrived at the sheriff's detention center. According to Deputy Charles Lemons, the classification officer at facility, Stoot did not say he was a former member of the Death Wish Crips. Dropping out of a gang presented a separate security issue at the jail because it was frowned upon within gangs. Nor would an inmate lie about gang membership because he would be subject to retaliation. Based on this record, Deputy Reyes opined that Stoot was an active member of the Death Wish Crips on February 1, 2006.
Turning to Stoot's second argument regarding the gang enhancement, we conclude that the trial court acted within its discretion when it denied Stoot's request to strike the gang enhancement. Stoot argued in his written motion before the trial court that his case was unusual because: (1) this was his first offense; (2) no one was physically harmed; and (3) he confessed his participation in all the crimes. At the sentencing hearing, Stoot asked that the court not sentence him to life in prison, reiterating that it was his first offense and he had cooperated.
The court summarized the case against Stoot, citing his leadership role in the criminal enterprise. It noted that the jurors heard all the evidence and found that Stoot was "acting as a gangster when [he was] doing this burglary." The court found no reason on the record to "essentially grant [Stoot] a new trial on that gang enhancement." It did, however, acknowledge that Stoot was 26 years old, had no prior criminal convictions, accepted responsibility at an early stage in the investigation, and conducted himself well while representing himself at trial. Having taken these matters into consideration, the court decided to impose the low term in count 1, the principal term. There was no abuse of discretion on this record.
Stoot raises a claim of clerical error in his reply brief. He points out that the June 5, 2007 minute order and the abstract of judgment erroneously reflect a sentence of "10 years to life" for the section 12022.53, subdivision (b) enhancement in counts 3 and 4. The court properly imposed a sentence of 10 years for that enhancement at the sentencing hearing. This court has the power to correct clerical errors in the record at any time, "whether made by the clerk, counsel or the court itself, so that such records will conform to and speak the truth." (In re Roberts (1962) 200 Cal.App.2d 95, 97.) Accordingly, we direct the trial court to correct the minute order and abstract of judgment.
C. Request To Join in Nesby's Arguments on Appeal:
Inasmuch as we have rejected each of Nesby's arguments on appeal, Stoot's request for joinder, which is opposed by the Attorney General, is moot.
DISPOSITION
The judgment is affirmed. The court is directed to correct the clerical error in recording the sentence for the section 12022.53 subdivision (b) enhancement in counts 3 and 4, and to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: NARES, Acting P. J., HALLER, J.