Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Candace J. Beason, Judge, (Super. Ct. No. GA056889)
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Maurice Lamar Thompson appeals his conviction, by jury, of the attempted premeditated and deliberate murder of Adonis Towles (Pen. Code, §§ 187, subd. (a), 664), kidnapping to commit robbery (§ 209, subd. (b)(1)), kidnapping (§ 207, subd. (a)), second degree robbery (§ 211), and shooting at an occupied motor vehicle. (§ 246.) The jury further found that a principal personally and intentionally discharged a firearm causing great bodily injury (§§ 12022.53, subd. (b)-(e)) and that each offense was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) On the attempted murder and kidnapping for robbery convictions, the trial court sentenced appellant to consecutive terms of life with the possibility of parole. It imposed one term of 25 years to life for the firearm use enhancement. (§ 12022.53, subd. (b)-(e).) Another 10-year enhancement term was imposed and stayed. The trial court imposed consecutive determinate terms of 5 years for the kidnapping (count 3) and 1 year for the robbery (count 4), plus gang enhancements of 10 years for each offense. The sentence imposed for shooting at an occupied motor vehicle was stayed pursuant to section 654. Appellant was ordered to pay a restitution fine of $800 and awarded 949 days of presentence custody credit.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends the judgment must be reversed because several prejudicial errors occurred. First, the trial court denied his Batson/Wheeler motion after the prosecutor exercised a peremptory challenge to excuse an African-American woman from the jury. Second, the trial court denied his motion for a new trial after jurors expressed a fear of gang retaliation, depriving appellant of his right to trial before an impartial jury. Third, the trial court excluded the testimony of an expert on eyewitness identification. Appellant further contends that the gang enhancements are not supported by substantial evidence, that his conviction of simple kidnapping (count 3) must be reversed because it is a lesser and necessarily included offense of the aggravated kidnapping of which he was also convicted (count 2), that his sentence for robbery should be stayed pursuant to section 654, and that the consecutive terms for simple kidnapping and robbery were incorrectly calculated. Respondent requests that we modify the abstract of judgment to reflect the restitution fines the trial court imposed and to impose the parole revocation fines it omitted.
Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.
We reverse appellant's conviction of simple kidnapping (count 3) because that offense is a lesser and necessarily included offense of aggravated kidnapping. We modify the judgment to a determinate aggregate term of 13 years, plus 2 consecutive indeterminate terms, each consecutive to each other. We also modify the amount of the restitution and parole revocation fines. As so modified, we affirm the judgment.
Facts
In 2004, Adonis Towles made his living by selling merchandise out of his truck. Towles operated a strictly cash business, finding customers by visiting job sites and by word of mouth. He frequently gave his cell phone number to prospective customers. When they called, he would arrange to meet them to make a sale. Towles met appellant twice, selling him merchandise on each occasion.
In March 2004, a man called Towles to make a purchase. Towles did not recognize the man's voice. He was busy on another call and told the man he'd call back in two minutes. When he called back, the man said he wanted to buy some "Cuba" brand cologne. Towles had the cologne, so they agreed to meet at a street corner in Pasadena. When Towles arrived at the corner, appellant was standing in front of an apartment building. He directed Towles to drive into the building's underground garage and then showed him where to park. Towles did as he was told. When he got out of his truck, he was confronted by two more men. One had a gun. Appellant stood leaning against a wall. The man with the gun told Towles to empty his pockets. Towles complied, giving the man about $90. Then the two men wrestled Towles into the trunk of a nearby Mercedes and handcuffed his hands behind his back. Appellant watched as this happened.
After Towles was handcuffed in the trunk, the men closed the trunk and the car started to move. They drove around for a long time before stopping. The trunk opened and one of the men pointed the gun at Towles' head and told him to get out. He told Towles he would not be killed. Towles' truck was nearby. All the merchandise had been removed. Towles was told to get into the back seat of the truck. He complied. Then one of the men shot Towles several times, hitting him twice in the head. One bullet lodged in Towles' brain and the other shot out his right eye and tore the ridge of his nose. The two men left.
Towles was rescued after he managed to get out of the back seat of his truck and was recognized by a woman who then called for help. As she was calling, an off-duty Los Angeles police officer saw Towles standing near his truck which was parked next to a freeway on-ramp. Towles was obviously in distress. The officer stopped to help. Towles told him that he was shot by "some guys in a yellow Mercedes."
Appellant was arrested two days later, on an outstanding warrant and for driving with a suspended license. He had been driving a yellow Mercedes. A cell phone was lying on the floor directly behind the driver's seat. Appellant was named as the subscriber for the phone. According to cell phone records, appellant made a very short call to Towles' cell phone on the afternoon of the shooting. A few minutes later, Towles returned the call to the phone found in the Mercedes. There was a bottle of "Cuba" cologne in the glove compartment of the Mercedes. Appellant was the registered owner of the car.
Towles identified a photograph of appellant's Mercedes as the car in which he had been confined. He was shown photographic line ups on two occasions. On the first occasion, only days after he underwent life saving emergency surgery, Towles failed to identify any one, even though appellant's photo was in the lineup. When he was shown a different lineup several days later, Towles identified appellant as the person who met him on the street and showed him where to park. Appellant's photo was the only one that appeared in both lineups. Towles was not able to identify either of the other men. He testified that he had never met them before the day of his assault.
In an interview conducted after appellant's arrest, his girlfriend identified appellant as a member of the PJG gang. She said his nickname was CK Boo. The girlfriend told the detective that she had seen appellant with a handgun in the days before the shooting. Another woman testified at trial that she had a relationship with appellant and that he asked her to tell police she bought the Cuba cologne as a present for appellant.
Gang Evidence
Appellant was known to members of the Pasadena Police Department as a member of the PJG gang. In 2001, he identified himself as a PJG member to a police officer and said his gang moniker was "CK Boo." For members of PJG, the letters "CK" mean "Crip Killer," a reference to the rival Crips gang. Appellant had many more encounters with police between 2001 and 2004. Each time, he admitted being a member of PJG. Appellant had tattoos referencing PJG, CK and other gang messages on both of his arms and on his back. In 2003, a Pasadena police officer confronted him and a group of young men in an underground parking lot on the same street where Towles was assaulted. Appellant was carrying a loaded .38 caliber handgun. The neighborhood where Towles was assaulted was known to be a common meeting location for the PJG gang. Appellant wrote letters to a PJG member who was in prison in which he discussed the gang lifestyle and ways to make PJG better or more independent.
Discussion
Batson/Wheeler Error
Appellant contends the prosecutor violated his state and federal constitutional rights by using a peremptory challenge to exclude a prospective juror because she is African American. Such a practice would violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. It would also violate article I, section 16 of the California Constitution because it would deprive appellant of a jury drawn form a representative cross-section of the community. (People v. Catlin (2001) 26 Cal.4th 81, 116.)
Batson/Wheeler, supra, explain that the prosecutor may not use "peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group . . . ." (People v. Turner (1994) 8 Cal.4th 137, 164.) To demonstrate that a prosecutor has used peremptory challenges to exclude prospective jurors for discriminatory reasons, the defendant must establish " 'a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." ' (Johnson v. California (2005) 545 U.S. 162, 125 S.Ct. 2410, 2414, 161 L.Ed.2d 129, see People v. Cornwell (2005) 37 Cal.4th 50, 67-68 [33 Cal.Rptr.3d 1, 12-13, 117 P.3d 622] (Cornwell).)" (People v. Gray (2005) 37 Cal.4th 168, 186.)
Here, appellant failed to establish a prima facie case that the prosecutor used peremptory challenges for a discriminatory purpose. There were two African American prospective jurors. The prosecutor used a peremptory challenge to excuse one of them; the other served on the panel as Juror No. 6. Moreover, the totality of relevant facts does not support an inference of discrimination. The excused prospective juror was a retired registered nurse and licensed marriage, family and child therapist. Before retiring, she worked on a psychiatric emergency team sponsored by the county's mental health department that responded, with police officers, to crime scenes and other emergency situations involving mental health issues. Both of her adult children worked in human service professions, one as a nurse and the other as a psychotherapist. In retirement, the prospective juror participated in a prison ministry through which she attended church services for inmates inside a state prison. She also visited shut-ins for her church. These facts support an inference that the prospective juror was excused because she might have been sympathetic to the defendant, not because of her race. The trial court correctly denied appellant's Batson/Wheeler motion.
Motion for New Trial
During the testimony of the prosecution's expert witness on street gangs, members of the jury expressed to the trial court their concerns that they might become the targets of gang retaliation. The trial court instructed the jurors that they had no reason to be concerned because their personal information had been sealed and because, in 18 years on the bench, the trial court had never heard of a case involving retaliation against a juror. The following day, the trial court received another note from a juror who remained fearful because the juror believed appellant had seen his or her name on a post-it note during the jury selection process. The trial court polled each juror individually to determine whether the jurors were biased or had discussed the case. Several jurors said they felt stressed or concerned, but only one said that she'd spoken to another juror about her fear. None of the jurors stated that their impartiality had been compromised.
Appellant's trial counsel moved for a new trial on the grounds that the jurors had demonstrated bias against the defendant and committed misconduct by discussing the case with each other. The trial court denied the motion. Appellant contends this was error. We disagree.
" ' " 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of that discretion clearly appears.' " ' (People v. Cox (1991) 53 Cal.3d 618, 694 [280 Cal.Rptr. 692, 809 P.2d 351].)" (People v. Staten (2000) 24 Cal.4th 434, 466.) It is serious misconduct for jurors to discuss among themselves, or with non-jurors "any subject connected with the trial . . . " before their deliberations begin. (§ 1122, subd. (b); People v. Majors (1998) 18 Cal.4th 385, 422-423.) When the trial court is made aware of possible juror misconduct, it must make whatever inquiry is reasonably necessary to resolve the matter. (People v. Prieto (2003) 30 Cal.4th 226, 274.) It has broad discretion to determine how the investigation will be conducted and whether any juror should be discharged as a result. (Id.)
There was no abuse of discretion here. The trial court questioned each member of the jury and properly determined that the jurors had not discussed the case or formed any opinions about it. One juror briefly mentioned her anxiety to another juror, but neither had formed an opinion about appellant. Moreover, the trial court properly answered the jurors' expressions of concern about retaliation, explaining to them that their identifying information had been sealed and that she was not personally aware of any instance of retaliation against jurors. The trial court was satisfied that the jurors were not prejudiced against appellant. So are we. Their answers to the trial court's inquiries demonstrate that they remained unbiased toward appellant. The motion for new trial was properly denied.
Exclusion of Expert Testimony on Eyewitness Identification
The trial court granted the prosecution's motion in limine to exclude the testimony of an expert witness on eyewitness identification. It excluded the testimony pursuant to Evidence Code section 352, concluding the minimal probative value of the evidence would be substantially outweighed by the undue consumption of time required to hear it. Appellant contends this ruling denied him his due process right to present all relevant evidence of significant probative value in his favor. (People v. Marshall (1996) 13 Cal.4th 799, 836 [55 Cal.Rptr.2d 347, 366].) There was no error.
We review for abuse of discretion the trial court's decision to exclude expert witness testimony on the psychological factors affecting eyewitness identification. (People v. Lewis (2006) 39 Cal.4th 970, 995; People v. Sanders (1995) 11 Cal.4th 475, 508.) Expert witness testimony on eyewitness identification is not invariably admissible. It is generally considered unnecessary where "there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability." (People v. Jones (2003) 30 Cal.4th 1084, 1112. See also, Lewis, supra, 39 Cal.4th at p. 995 [expert testimony "often unnecessary."].) However, "[w]hen an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony." (People v. McDonald (1984) 37 Cal.3d 351, 377.)
The trial court did not abuse its discretion in excluding the expert testimony because Towles' eyewitness identification of appellant was corroborated by evidence giving it independent reliability. First, this case does not involve the eyewitness identification of a stranger, nor was this a cross-racial identification. Appellant had met Towles at least twice, when he bought merchandise from Towles. Both men are African American. Cell phone records corroborated Towles' testimony that appellant called him and that he returned the call a few minutes later. The brand of cologne stolen from Towles' truck was found in appellant's car. Appellant asked his girlfriend to lie for him and say that she bought the cologne. The crime occurred in a neighborhood claimed by PJG as its "territory." Appellant is a known PJG member. Because this evidence corroborates Towles' identification of appellant, the trial court did not abuse its discretion in excluding the expert witness' testimony.
Substantial Evidence Supports Gang Enhancement
The jury found true a sentence enhancement allegation that appellant committed the crimes against Towles "for the benefit of, at the direction of, or in association with a criminal street gang . . . ." (§ 186.22, subd. (b)(1).) Appellant contends this finding is not supported by substantial evidence. The contention is without merit.
Appellant was a known member of the PJG gang. He had several gang-related tattoos. He wrote letters to another PJG member while that member was in prison. Appellant lured Towles into an underground parking garage located in PJG territory, then served as the look out while two other men robbed, kidnapped and shot the victim. It is reasonable to infer that the assault was planned and that the three men were working as a team. A few months before the assault on Towles, appellant was arrested in an underground parking garage, with a handgun, in the company of other PJG gang members. The prosecution's expert witness on street gangs opined that appellant would not have committed crimes with non-gang members as accomplices and that the crimes committed against Towles were committed for the benefit of, at the direction of or to promote the PJG gang. This constitutes substantial evidence form which a reasonable jury could find the gang enhancement allegation true beyond a reasonable doubt. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1010.)
Simple Kidnapping
The jury found appellant guilty of both the "simple" and "aggravated" kidnapping (§207, subd. (a), §209, subd. (b)(1)), of Towles. Simple kidnapping is stealing, taking or detaining another person by force or fear. (§ 207, People v. Barnett (1998) 17 Cal.4th 1044, 1148.) Aggravated kidnapping occurs when the victim is taken for the purpose of committing a robbery or other felony against the victim. (People v. Martinez (1999) 20 Cal.4th 225, 233.) A kidnapping continues until the victim is released or has reached a place of temporary safety. (People v. Barnett, supra, 17 Cal.4th at p. 1159.) Simple kidnapping is a lesser and necessarily included offense of aggravated kidnapping. (People v. Jackson (1998) 66 Cal.App.4th 182, 189.) " [M]ultiple convictions may not be based on necessarily included offenses." (People v. Pearson (1986) 42 Cal.3d 351, 355.)
There was only one kidnapping offense here. It commenced when appellant and his confederates forced Towles into the trunk of appellant's car and it ended when they returned Towles to his own vehicle. Towles was not released, nor did he ever reach a place of safety between those two events. Appellant cannot be convicted of both simple and aggravated kidnapping for the same conduct. Accordingly, we reverse his conviction of simple kidnapping (count 3).
Section 654Appellant contends the trial court violated section 654 when it imposed separate, consecutive sentences for the aggravated kidnapping (count 2) and robbery (count 4) convictions. He contends the kidnapping and robbery were part of a single, indivisible course of conduct which can only be punished once. We disagree.
"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) Whether a course of conduct is divisible for purposes of section 654 depends on the " 'intent and objective of the actor . . . .' " (People v. Coleman (1989) 48 Cal.3d 112, 162.) Where a defendant harbors multiple criminal objectives that are independent of each other, he or she may be punished for each statutory violation committed in pursuit of each such objective, even though the violations share "common acts or were parts of an otherwise indivisible course of conduct." (People v. Harrison (1989) 48 Cal.3d 321, 335.)
The consecutive sentences imposed on counts 2 and 4 do not violate section 654 because appellant and the other perpetrators had at least two distinct criminal objectives: to rob Towles of his money and merchandise, and to kidnap him. First, the perpetrators took the cash and other property from Towles' person. Then, they kidnapped him by putting him in the trunk of appellant's car and driving him around. During that time, they took the merchandise in Towles' truck. The perpetrators could have kidnapped Towles without taking the merchandise from his truck; they could have refrained from kidnapping him by holding him in the garage while they emptied they truck. Instead, they substantially increased the risk to Towles by kidnapping him to facilitate taking the merchandise without risking interruption from someone using the garage or Towles' making noise to summon help. The separate intents and objectives to rob and to kidnap Towles are properly subject to separate punishments.
Sentencing on Robbery Count
The trial court sentenced appellant to the middle term of five years on the kidnapping count, plus 10 years for the gang enhancement. (§ 186.22, subd. (b)(1)(C); § 667.5, subd. (b)(9).) It imposed a sentence of 1 year (one-third the mid-term) on the robbery count, plus 10 years for the gang enhancement. The sentences were ordered to run consecutively to each other and to the indeterminate life terms imposed for attempted murder and aggravated kidnapping. Appellant contends the determinate sentences were incorrectly calculated and that he should have been sentenced to one-third the mid-term for each felony and each gang enhancement, resulting in a term of 5 years on the kidnapping count and 4 years, 4 months on the robbery count. We agree. However, the trial court's intention is clear and remand would exalt form over substance. We modify the judgment accordingly. (§ 1260.)
Disposition
The three year determinate term imposed for the robbery offense is now the principal term with 10 years consecutive for the gang enhancement. Consecutive to this 13 year determinate term are the 25 year to life consecutive terms, each consecutive to each other. "When a defendant is sentenced to both a determinate and an indeterminate sentence, the determinate sentence is served first. Nonetheless, neither term is 'principal' or 'subordinate.' They are to be considered and calculated independently of one another." (People v. Reyes (1989) 212 Cal.App.3d 852, 856; see also People v. Garza (2003) 107 Cal.App.4th 1081, 1094; People v. Mason (2002) 96 Cal.App.4th 1, 14-15.) The same holds true for the gang enhancement. (People v. Garza, supra, 107 Cal.App.4th at p. 1094.)
Since there are now only three convictions, the restitution fine ($200 per conviction) is now $600 with a $600 parole revocation fine.
The trial court shall prepare an amended abstract of judgment consistent with this opinion and forward it to the Department of Corrections. As so modified, the judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.