Opinion
C081877
03-08-2018
THE PEOPLE, Plaintiff and Respondent, v. ADAM JAMES SANFORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S15CRF0177)
Defendant Adam James Sanford robbed two sets of victims in quick succession. After taking money from the second set of victims, he turned, ran, and fired his gun. A jury found him guilty of multiple crimes including robbery with a finding that he had intentionally discharged a firearm during the commission thereof.
On appeal, he contends the trial court erred in instructing the jury on the escape rule as it pertains to the firearm enhancement. He also challenges the prosecution's failure to disclose the criminal history of one of the victims. Finally, he contends reversal is required to allow the trial court to consider striking the firearm enhancement pursuant to the newly enacted Senate Bill No. 620.
We agree with defendant's final contention. We will remand to allow the trial court to exercise its newfound discretion under Senate Bill No. 620. We will also order a corrected abstract of judgment. In all other respects, we affirm the judgment.
BACKGROUND
On November 13, 2015, defendant robbed four people in South Lake Tahoe.
The first victim, Joshuah, testified he was walking with his friend David when he noticed defendant approaching from behind. Defendant asked, " 'Are you side checking me, Homie?' " adding, " 'I'm sick of all you motherfuckers in South Lake Tahoe.' " Defendant overtook the victims, drew a gun, and said, " 'You know what? This is a robbery. Give me everything you got.' "
Seeing Joshuah look around, defendant said, " 'What? You think I won't shoot you here in front of everybody?' " Defendant then brandished a knife.
Joshuah told defendant he had nothing, but David threw down his wallet and defendant picked it up. Joshuah turned around and distanced himself from defendant as he watched defendant walk towards the beach. Joshuah called 911. At trial, the jury was played a recording of the 911 call.
On cross-examination, Joshuah denied talking to David about his testimony before trial.
David provided similar testimony. He saw defendant approach and accuse them of "eyeballing" or scoping him out. Defendant said, " 'Break yourselves, fool,' " and " 'Give me whatever you got.' " Defendant lifted his shirt and pulled out a gun and pointed it at them. He also drew a knife and said something to the effect of, " 'What? You think I'm afraid to stab you?' "
David dropped his wallet, and said, " 'Here. Take it.' " Defendant took the wallet and walked towards the beach. David walked the other way with Joshuah.
On cross-examination, David testified that an hour before testifying, he had a conversation with Joshuah about "the fact that we were here to testify." They also went over the events of that night. David denied changing his testimony based on anything he had discussed with Joshuah.
Later that same day, defendant robbed Dylan and Bruce.
Dylan testified that he was on the beach with Bruce when defendant approached asking if they knew where food was. Dylan tried to answer, but defendant became upset and said, " 'You think this is fucking funny.' " Defendant drew a gun, pointed it, and told them to pull out their money and drop their wallets.
Dylan dropped his wallet as Bruce took two twenties from his pocket. Defendant took the twenties but not the wallet. He turned and started running away. As he was running, facing away from the victims, he fired his gun. Dylan estimated that he was 10 feet away, but also estimated that 45 seconds passed between the time defendant took the money to the time he fired the gun.
Dylan called 911, but as he did, he could already see police approaching.
On cross-examination, Dylan was asked if he felt like he was out of the "zone of danger" when defendant turned around and walked away in a quick pace. He said, "it felt like it was over and we were safe." On redirect, he was asked if defendant "escaped from the area at the time he had fired the gun?" He answered, "No. He was still on the beach."
Bruce offered similar testimony. He testified that during the robbery, he took some bills from his pocket and handed them to defendant. Defendant took the bills and fled. About 10 seconds later, defendant fired the gun.
On cross-examination, Bruce was asked if he felt safe after defendant had run away and Dylan had called 911. He answered, "I don't know if I was safe, but I felt like I had mitigated the problem. [¶] . . . [¶] It was over." Asked how he felt, when he heard the gun fire, he said, "I thought it was a victory shot, like Yosemite Sam celebrating that he won. [¶] . . . [¶] But . . . my eyes were focused on my phone -- [¶] . . . [¶] so I can't tell what it was about." Asked how far away defendant was, Bruce said he "[d]idn't really see," because he was concentrating on his phone, but he guessed 20 to 30 feet.
Shortly after the second set of robberies, defendant was arrested and found with two knives in a sheath. He was wearing a waistband holster, holding a handgun. He had a brown wallet with David's identification and social security card, and $40 in cash.
Defendant testified that he believed Joshuah and David had taken his wallet with $1,200 inside. When he confronted them about the wallet, David pulled a gun on him. Dylan and Bruce also approached him.
When David glanced away, defendant wrestled the gun from him. Before leaving, defendant asked David for the gun's holster. The gun accidently fired when he tried to clear its chamber.
The jury found defendant guilty of all nine counts and found all accompanying enhancements true. This included a finding he had intentionally discharged a firearm while robbing Bruce. (Pen. Code, § 12022.53, subd. (c).) The trial court imposed an aggregate 37-year four-month term. The term included a mandatory 20-year enhancement for discharging a firearm (§ 12022.53, subd. (c)) and 3, three-year four-month enhancements (one-third of the mandatory 10-year term) for using a firearm during the robbery (§ 12022.53, subd. (b)). Additional mandatory firearm enhancements were imposed and stayed.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Instruction on the Escape Rule
Defendant first contends the trial court erred in instructing the jury on the escape rule as it pertains to the firearm enhancement. He argues the court failed to instruct that a place of temporary safety is determined using an objective standard, but the jury may consider the defendant and witnesses' subjective impressions. He also argues the trial court should have defined the term "scene" as the immediate location of the robbery. We disagree.
A. Background
Prior to deliberation, the trial court instructed the jury (using CALCRIM No. 3261) that: "The People must prove that the defendant intentionally discharged a firearm while committing or attempting to commit robbery. [¶] The crime of robbery or attempted robbery continues until the perpetrator has actually reached a place of temporary safety. [¶] The perpetrator has reached a place of temporary safety if he has successfully escaped from the scene and he . . . is no longer being chased, and he has unchallenged possession of the property, and he is no longer in continuous physical control of the person who was the target of the robbery."
In closing, defense counsel argued, regarding the gun discharge: "It was pretty clear from the witnesses' testimony they, both [Dylan and Bruce], said the robbery was over. He's gone. We didn't even consider that it was part of what was going on here."
The prosecutor argued in reply: "[T]he law is not subjective intent. The law says the Defendant has to have escaped, and here [defendant] was running in a full stride facing away from them, and he fires the gun into the air while he's still on the beach ten feet away. He has not escaped, so whether [Bruce] subjectively feels in his own mind like, oh, well, the robbery is over at that point, that is not what the law says."
B. Analysis
At the outset, defendant's contention is forfeited for failure to request a modified instruction. He may not now complain that the instruction was too general or incomplete without first requesting appropriate clarifying or amplifying language. (See People v. Castaneda (2011) 51 Cal.4th 1292, 1348 [where instruction is a correct statement of the law, a defendant who fails to request different language forfeited his claim that the instruction should have been modified].)
Defendant nevertheless maintains his challenge is not forfeited because the jury was instructed with an incorrect statement of law. He argues the instruction failed to inform the jury that the standard is objective, but the jury may consider the defendant and witnesses' subjective perspectives. He avers the trial court should have given a modified version of the instruction given in People v. Thongvilay (1998) 62 Cal.App.4th 71, 84. There the court instructed: "The issue of whether the defendant believed that he had reached a place of temporary safety may be considered by the jury. [¶] But the standard to be applied to the underlying question, however, is an objective one; that is, whether the defendant has actually reached a place of temporary safety rather than whether the defendant believed that he had reached such a safe location." We are not persuaded.
Even absent a request, a trial court in a criminal case must instruct on the general principles of law as raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The general principles of law are principles "closely and openly connected with the facts" and necessary for the jury's understanding of the case. (Ibid.) Whether a jury instruction correctly states the law is reviewed de novo. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) If possible, instructions should be interpreted to support the judgment if reasonably susceptible to such an interpretation. (Ibid.)
Though CALCRIM No. 3261 does not explicitly state the standard is objective, its language is consistent with an objective standard. It states the robbery continues "until the perpetrator has actually reached" temporary safety. (CALCRIM No. 3261, italics added.) And its elements imply an objective standard: defendant must have escaped from the scene, have no one chasing, have unchallenged possession of the property, and have no physical control of the robbery target. Nothing in CALCRIM No. 3261 precludes a jury from considering a defendant's state of mind to determine its elements.
Here, defendant offered no testimony regarding his subjective belief as to his escape. He simply maintained no robbery occurred and the victims were the aggressors. Further, defendant offers no authority to support his assertion that the subjective belief of a witness is properly considered to determine escape. Indeed, a witness' subjective belief would not readily inform any of the objective factors, which we have detailed ante, in determining whether a defendant has reached a place of temporary safety.
By contrast a defendant's subjective belief (particularly his belief that he is about to be arrested) may more readily inform an objective analysis of whether he has escaped. (See, e.g., People v. Kendrick (1961) 56 Cal.2d 71, 90 [defendant's belief that officer was about to arrest him for robbery, among other evidence, established robbery was not yet complete].) --------
Defendant similarly contends the instruction was incorrect for failure to define "scene" as "the immediate location of the robbery." He offers no support of this claim, and we see nothing precluding the jury from concluding defendant was still at the scene of the crime while on the beach, 10 to 30 feet from the victims, and still in their view.
Accordingly, CALCRIM No. 3261 provides a proper statement of the law and defendant's challenge to the jury instructions is, in turn, forfeited.
II
Defendant's Brady Challenge
Defendant next contends a violation of Brady v. Maryland (1963) 373 U.S. 83 requires reversal. He argues the prosecution failed to timely disclose material impeachment evidence regarding the victim Joshuah. The People maintain the claim is not cognizable on appeal because it stems from an order after judgment from which defendant did not appeal; further, defendant did not raise a Brady challenge below. However, having granted defendant's request to augment the record to include materials pertaining to his Brady challenge, we will consider the issue on the merits. (Interim file) (See People v. Norwood (1972) 26 Cal.App.3d 148, 153 ["A matter normally not reviewable upon direct appeal, but which is shown by the appeal record to be vulnerable to habeas corpus proceedings based upon constitutional grounds may be considered upon direct appeal"].)
A. Background
A month after defendant was sentenced, the district attorney's office sent defense counsel a letter explaining that the victim Joshuah had convictions in 2012 for conspiracy, breaking or entering, possession of burglary tools, and larceny; and a 2011 arrest for breaking and entering, larceny, conspiracy, and possession of burglary tools. The letter explained that a criminal check had initially returned "no hits." But two weeks after defendant's sentencing, Joshuah was arrested and a different date of birth was provided for him. Using that birth date, a criminal history check uncovered the convictions and arrests.
Defense counsel moved to vacate the judgment and for a new trial. The trial court denied the motion, explaining an application for a new trial must be made before judgment. The court added that even if timely the motion would have been denied because a more favorable result was not probable: the evidence only cast doubt on Joshuah's credibility, while the other victim, David, presented corroborating testimony.
B. Analysis
We review a Brady challenge de novo, though the trial court's findings of fact are given great weight when supported by substantial evidence. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) We will vacate a conviction if the undisclosed evidence is material. (In re Brown (1998) 17 Cal.4th 873, 903.) "Evidence is 'material' if there is a 'reasonable probability' that the outcome of the trial would have been different had the evidence been disclosed, which occurs when the undisclosed evidence 'could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' " (Ibid.)
Here a more favorable outcome is not reasonably probable. As the trial court noted, the criminal history would cast doubt on only one of the four robbery victims. A second percipient witness provided substantially similar testimony as Joshuah. And two other witnesses testified to a very similar subsequent robbery. Further, defendant's account of the incident defied belief. The testimony that the victims had discussed the event before testifying is not sufficient to alter our conclusion that a more favorable outcome is not probable, even if Joshuah's 2011 and 2012 burglary and larceny convictions and arrests had been timely disclosed and introduced as impeachment evidence at trial. Defendant's Brady claim accordingly fails.
III
Defendant's Senate Bill No. 620 Challenge
Finally, defendant contends in supplemental briefing that remand is appropriate in light of Senate Bill No. 620, which gives trial courts discretion to strike firearm enhancements. The People concede the newly conveyed discretion applies retroactively but maintain remand is not appropriate because no reasonable court would exercise its discretion to strike the firearm enhancements in defendant's case. As we will explain, we agree with defendant that remand is appropriate in this case.
On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended sections 12022.5 and 12022.53, effective January 1, 2018 (stats. 2017, ch. 682, §§1- 2), to permit a trial court to strike a firearm enhancement: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
We agree with the parties that Senate Bill No. 620 applies retroactively. If an amended statute "lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." (In re Estrada (1965) 63 Cal.2d 740, 744; see also People v. Francis (1969) 71 Cal.2d 66, 75.) Here, the amendment took effect before defendant's conviction becomes final and therefore Senate Bill No. 620 applies retroactively. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].)
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Ca.App.4th 1213, 1228.) Here, the trial court had no discretion at sentencing regarding the 20-year consecutive term for the section 12022.53, subdivision (c) enhancement, nor did it have discretion regarding the multiple (then mandatory) enhancements for sections 12022.53, subdivision (b) and 12022.5, subdivision (a). But the court may not have understood it did have discretion to select a three-, four-, or 10-year term for the section 12022.5, subdivision (a) enhancements. The court consistently referred to those enhancements as "the 10 years" or "the 10-year use allegation" and "the 10-year enhancement." Further, it appears the trial court was not aware it lacked discretion as to the term for the section 12022.53, subdivision (b) enhancements. Although these enhancements bore a 10-year mandatory consecutive sentence at the time of sentencing, the court consistently referred to the 10-year term as the "middle term"; i.e. "the middle term is 10 years" and "I'll impose one-third of the middle term for the 12022.53(b) enhancement. The middle term is 10 years."
Because of this apparent confusion, as well as the multiple firearm enhancements and sentencing possibilities now at play in this case given the trial courts newly awarded discretion, we follow the general rule expressed above and will remand to permit the trial court to consider exercising its discretion under Senate Bill No. 620.
IV
Correction of the Abstract of Judgment
Finally, the People contend the abstract of judgment must be corrected to reflect that the 20-year firearm enhancement imposed on count 5 was pursuant to section 12022.53, subdivision (c), rather than subdivision (b). We agree that correction is needed.
Similarly, on count 7, the trial court imposed a three-year four-month enhancement pursuant to section 12022.53, subdivision (b). The abstract of judgment incorrectly reflects that that enhancement was imposed pursuant to subdivision (a).
If these enhancements remain as part of the sentence after our remand for consideration of exercise of discretion, the trial court is directed to prepare a corrected abstract of judgment reflecting the correct subdivisions for each enhancement. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 ["An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment"].)
DISPOSITION
The matter is remanded to the trial court to consider exercising its discretion under Senate Bill No. 620 and prepare any amended or corrected abstract of judgment required thereafter, in a manner consistent with this opinion. In all other respects, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hull, J.