Opinion
E031197.
10-20-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD SHELBY TOLBERT, Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gary W. Brozio, Supervising Deputy Attorney General, and A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
A jury found Edward Shelby Tolbert, defendant and appellant (hereafter, defendant) guilty as charged of kidnapping, false imprisonment, carjacking, assault with a firearm, personal use of a firearm, personally discharging a weapon at an occupied vehicle, and two counts of being a felon in possession of a firearm, a total of eight felony charges. The jury also found true various gun use and gang enhancements and the trial court found true five prior prison term enhancements and two prior serious felony convictions within the meaning of Penal Code section 667, subdivisions (a) and (c). As a result of the verdicts and true findings, the trial court sentenced defendant to serve a determinate term of 20 years in state prison followed by an indeterminate term of 70 years to life.
Defendant raises numerous claims of error in this appeal, the details of which we recount below in connection with our discussion of those claims. We conclude that with the exception of defendants claim that the trial court incorrectly stayed execution of the gang enhancement imposed in connection with defendants sentence on the kidnapping conviction (count 1), defendants claims are meritless. Therefore, we will affirm the judgment and remand for resentencing on that gang enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
The charges in this case stem from two separate incidents that the district attorney originally filed as separate cases and then moved to consolidate, a motion the trial court granted. The subsequently filed consolidated information charged defendant and David Allen Borders (who is not a party to this appeal) with kidnapping (count 1), false imprisonment (count 2), and carjacking (count 3). Defendant alone was charged in count 4 with being a felon in possession of a firearm. The charges alleged in counts 1 through 4 stem from events that occurred on March 15, 2001. In the afternoon of that day, defendant, a known member of the West Side Projects Crips, flagged down a car driven by Jeffrey Newton, also a West Side Projects Crips member. Newton had become an informant for the Drug Enforcement Agency and had assisted the DEA in an investigation of a drug operation run by defendants brother Barry. As a result of the investigation, defendants brother and 29 other West Side Projects Crips had been arrested on March 9, 2000.
Unbeknownst to Newton, several gang members had begun to suspect he was an informant. Nakita Simms, one of the West Side Projects Crips arrested on March 9, communicated her suspicions about Newton to David "Biff" Borders, also a gang member, in a telephone call she made while incarcerated in federal detention. In that phone conversation, Simms accused Newton of being the person identified in her "paperwork," presumably a reference to the police reports that supported her arrest, as "CS1, CS3, or something like that. CS, dont tell em their name."
Simmss conversation was recorded and presented as evidence at trial. Defendant challenges the admissibility of that evidence in one of the issues he raises on appeal.
Newton knew defendant as a fellow gang member, so when defendant flagged him down on March 15, Newton pulled to the side of the road and defendant got in the car. Once inside, defendant pulled up his shirt to reveal the handle of a gun sticking out at the waistband of his pants. Defendant then told Newton to drive to Borderss house. When Newton asked defendant what was going on, defendant told him "[j]ust go to Biffs house." Newton complied with defendants directive. As they reached an intersection near the house, Newton saw Borders standing on a street corner holding a metal pipe. Defendant told Newton to pull over. After he stopped the car, Borders confronted Newton "about all this snitching [Newton] supposed to be doing." Borders then accused Newton of informing on Barry Tolbert, Nakita Simms, and a third gang member whom Borders referred to as "Tuna." Newton claimed he did not know what Borders was talking about.
While Borders was confronting Newton, defendant removed the keys from the ignition, got out of Newton car, and walked over to Borders. Borders told Newton to go in the house, which Newton did after Borders assured him that he had nothing to worry about if he was "not snitching." Once inside, Borders patted Newton down to determine if Newton was wearing a wire. Newton was told that he would have to stay at the house until they, presumably referring to Borders and defendant, could find out whether he was an informant. Borders told Newton that if he tried to leave the house, he would be shot. Defendant and Borders then left in Newtons car.
Newton was held at Borderss house the night of March 15 and all day March 16. During that time, Newton saw defendant three different times, coming and going from the house. In the early morning hours of March 17, a Friday, Borders told Newton that they could not confirm whether he was the person referred to as the "CS" (confidential source) in Nakita Simmss paperwork. Borders then left and a short time later a woman returned Newtons car keys to him. After being released from Borderss house, Newton called the DEA and the local police to report what had happened to him.
The remaining counts of the amended information, counts 5 through 8, pertain to an incident that occurred on March 1, 2000, in which defendant assaulted Darlene Butts and her boyfriend, Garry Allison, with a firearm. According to the testimony of Butts and Allison, in the early morning hours of March 1 they went to a house in Rubidoux to buy cocaine. Defendant, whom Butts knew by his middle name, Shelby, walked up to Buttss car and asked about getting a ride. When Allison answered that Butts had said no, defendant pulled a gun from the waist of his pants and fired a shot into Buttss car. Defendant was about six inches from the car when he fired. Butts testified that in response to defendants action, she initially froze and that her ears were ringing. When she did drive away, she and Allison spotted a bullet hole in the dashboard of her car and a nine-millimeter shell casing on the floor. Butts did not immediately report the shooting incident. About a month later, when she believed that defendant had stolen a car she had borrowed from her employer, Butts reported the stolen car and in the course of doing so also told the police about the shooting incident.
Additional facts will be discussed below as pertinent to the issues defendant raises on appeal.
DISCUSSION
We address defendants claims in the order in which he raises them and therefore begin with his claim challenging the trial courts purported denial of his request to discharge his retained attorney.
1.
RIGHT TO DISCHARGE RETAINED COUNSEL
At defendants sentencing hearing, his attorney informed the trial court that defendant wanted to dismiss her for being ineffective and that he did not want her to represent him at sentencing. In response, the trial court asked whether defendant had hired other counsel. Defendant answered, "No. Im in the process now." The trial court then confirmed that defendant could discharge his retained attorney and hire new counsel, "if theyre willing to assume the obligation. But Im not going to continue this for any reason. So if youre asking me to continue [sentencing] so he can get counsel, Im going to deny that request."
Defendant first contends that the trial court abused its discretion in denying his request to discharge his retained counsel. The response to that assertion is simple: the trial court did not deny defendants request to discharge counsel. What the court did was deny defendant a continuance of the sentencing hearing in order to hire a new attorney, a ruling defendant also challenges.
If viewed as a denial of defendants request to discharge retained counsel, the trial courts ruling is not an abuse of discretion. A defendants right to discharge retained counsel is not absolute. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) As pertinent here, that right is limited by the requirement that the request be timely, that is, that it not "result in `disruption of the orderly processes of justice [Citations.]" (Ibid.) Because defendant had not hired new counsel his request, made at his sentencing hearing, to discharge his current attorney would have required a continuance of that hearing. The record reflects that defendants sentencing hearing had been continued several times. Defendants argument to the contrary notwithstanding, the trial court did not abuse its discretion in finding, albeit implicitly, that yet another continuance of defendants sentencing hearing would have resulted in a disruption of the orderly processes of justice.
Defendant also contends that because he claimed his attorney was ineffective, the trial court was required to hold a hearing akin to that required under People v. Marsden (1970) 2 Cal.3d 118 before denying defendants motion to discharge his attorney. We disagree.
People v. Marsden, supra, requires the trial court to conduct an in camera hearing when a defendant seeks to dismiss appointed counsel. Where counsel is retained, Marsden does not apply. In fact, a Marsden-type inquiry regarding retained counsel would violate a defendants Sixth Amendment right to counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 155.) Accordingly, we reject defendants various challenges to the trial courts denial of his request to discharge his retained attorney.
2.
ADMISSIBILITY OF TAPE RECORDED TELEPHONE CONVERSATIONS
The prosecutors theory at trial was that defendant and David Borders suspected that Jeffrey Newton was the informant responsible for providing information to the DEA that was used to arrest defendants brother and Nakita Simms. Based on that suspicion, on March 15, 2000, defendant forced Newton at gunpoint to drive to Borderss house where Newton was then held for more than 24 hours while defendant and Borders investigated whether he was a snitch. Consistent with that theory, the prosecutor sought to introduce into evidence two tape recorded telephone conversations in which Nakita Simms spoke first with David Borders on March 13, and next with her brother Dion Stanley on March 16 about the identity of the snitch. Simms placed both telephone calls while incarcerated in the federal detention center following her arrest on the drug charges. Both telephone conversations were tape recorded.
Defendant objected to the admissibility of the two tape recorded conversations on the ground that they were hearsay and since there was no evidence of a conspiracy, the conversations were inadmissible. The trial court ruled that the conversations would be admissible under Evidence Code section 1223, the hearsay exception for statements of coconspirators made during the course of the conspiracy, if there was "a scintilla of evidence" that a conspiracy in fact existed. Although there is no express finding, we assume from the fact that the trial court later allowed the prosecutor to play the tapes of the recorded telephone conversations for the jury, that the trial court found there was adequate evidence of a conspiracy. The trial court also admitted into evidence transcripts of the taped conversations, although the record on appeal does not include the actual trial exhibits.
The only copies of the transcripts included in the record on appeal are those appended as exhibits to the prosecutors trial brief on the issue of whether the conversations were admissible evidence. We refer to those transcripts in addressing this issue.
Defendant first contends that the recorded conversations were inadmissible hearsay because there was no evidence of a conspiracy and therefore the conversations did not come within Evidence Code section 1223. We disagree. The March 13 conversation was not hearsay.
A. March 13 Conversation
Hearsay is an out of court statement offered to prove the truth of the matter stated and as such is generally inadmissible. (Evid. Code, § 1200.) In the March 13 conversation, Simms and Borders discussed in guarded language whether Jeff Newton was the person who informed on Simms. According to the pertinent portions of the transcript, Borders asked Simms, "Did Jeff Newton do you?" Simms answered, "Man, be careful on the phone though, but, man, yeah. Its like that homey." Borders then asked, "His real name?" Simms responded, "Naw, no" and added, "But I already know who it was. You know what Im sayin. I know by reading my paperwork. I know. I already know, `cause I remember it cuz. . . ." When Borders stated, "Yeah but what Im sayin is, is his name, you know," Simms answered, "No, But I already know. Im telling you." Simms said, "Im knowing. I know, I know what day it was. I know how I know. I remember you know what Im sayin. Im knowing cuz. Im knowing man." After talking about bail and how Simms was being treated, Borders returned to the subject of the snitch by asking, "So do a, old boy, gotta come to court on you?" Simms answered, "Huh? Yeah. Thats what my lawyer said. He said the D.A. gotta come and prove it." When Borders asked whether he, presumably referring to the lawyer, said the name Newton, Simms said, "It dont say his name." Then Borders asked, "What it say, confidential informant[?]" and Simms answered, "It said CS1, CS3, or something like that. CS, dont tell em their name." Borders said, "O.k [sic] so he did that." Simms confirmed, "I know him, you know what Im sayin, I know him."
The above quoted statements were not offered for their truth, that is, to prove that Jeff Newton was the informant or that Simms paperwork said CS1, CS3 or that Simms knew the identity of the informant. The particulars of the statements actually were irrelevant. The evidence was relevant to show that the conversation between Borders and Simms took place and that it occurred on March 13. That conversation provides the motive for defendants act on March 15 of taking Newton at gunpoint to Borderss home and holding him there until March 17. Although the trial court did so for the wrong reason, it nevertheless correctly admitted the March 13 telephone conversation between Simms and Borders into evidence at trial. The task of an appellate court is to "review the correctness of the challenged ruling, not of the analysis used to reach it." (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1045.) "If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." (People v. Zapien (1993) 4 Cal.4th 929, 976.)
B. March 16
The second conversation between Simms and her younger brother Dion Stanley took place on March 16. In that conversation, Stanley asked Simms if she had some "paperwork" about "old boy," whom Stanley ultimately identified as "Newton" after Simms indicated she did not know who Stanley was talking about. The pertinent part of the conversation consists of Stanley asking, "You aint seen no paperwork on him?" Simms answered, "Yeah, when I get it. Who want it?" Stanley responded, "Old boy, Shelby."
Defendants middle name is Shelby. Newton testified that defendant went by that name.
According to the evidence previously noted, Newton was held at Borderss house from March 15 until the early morning hours of March 17. During that time Borders investigated whether Newton was a snitch. Ultimately, Borders released Newton because Borders was unable to confirm that Newton was an informant. The conversation between Simms and Stanley was relevant to show that on March 16, while Newton was being held at Borderss house, defendant was looking for paperwork that identified Newton as an informant in Simmss case. In other words, the March 16 conversation was offered to prove that Shelby wanted paperwork on Newton. Because it was offered to prove the matter stated, the conversation was hearsay and inadmissible unless within the hearsay exception for statements of coconspirators made in the course of the conspiracy.
Evidence of statements made by coconspirators is admissible under the hearsay exception set out in Evidence Code section 1223 "if, at the threshold, the offering party presents `independent evidence to establish prima facie the existence of . . . [a] conspiracy. [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: `(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy. [Citation.]" (People v. Hardy (1992) 2 Cal.4th 86, 139, quoting People v. Leach (1975) 15 Cal.3d 419, 430-431; see also Evid. Code, § 1223.) "A criminal conspiracy exists when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement." (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 998.)
The evidence presented to the trial court established that defendant and Borders suspected Jeffrey Newton was an informant. Based on that suspicion, defendant and Borders kidnapped Newton and held him in Borderss home while they looked for evidence to confirm their suspicions about Newton. Stanleys telephone conversation with Simms occurred during the time that defendant and Borders were holding Newton. That evidence is sufficient to establish prima facie that a conspiracy existed at the very least to intimidate Jeffrey Newton and at worst to kidnap and possibly even kill him if his status as an informant were confirmed.
Accordingly, we conclude the trial court did not err in admitting Stanleys hearsay statement to Simms under the coconspirator exception. However, even if we were to conclude otherwise, any error necessarily was harmless. Assessing prejudice under Chapman v. California (1967) 386 U.S. 18, the standard pertinent to error of federal constitutional magnitude, as defendant contends we must because the purported error violated his Sixth Amendment right to confront and cross-examine witnesses, reversal is required unless the error was harmless beyond a reasonable doubt.
The March 16 conversation was offered first to show defendants motive in connection with the kidnapping, false imprisonment, carjacking, and felon in possession of firearm charges, counts 1 through 4, respectively, and also to corroborate Newtons testimony regarding those crimes. The evidence pertinent to prove those crimes, independent of the March 16 telephone conversation was significant. First, the jury heard Jeffrey Newtons testimony recounting the details of the crimes. The jury also heard the tape-recorded telephone conversation between Nakita Simms and David Borders that established the motive for the crimes. Newtons sister also testified that she had loaned her car to Newton and that he failed to return with it on March 15 as promised. Instead, Newton returned the car three days later, on March 17. According to Newton, that was the date on which the car keys had been returned and Newton was allowed to leave Borderss home.
In view of the foregoing evidence we have no reasonable doubt that if the trial court erred in admitting the March 16 telephone conversation, that error was harmless.
C. CALJIC No. 6.24
Defendant contends the trial court incorrectly instructed the jury regarding the admissibility of statements of coconspirators by giving an outdated version of CALJIC No. 6.24 that did not require the jury to find the pertinent facts by a preponderance of the evidence. As revised in July 2001, CALJIC No. 6.24 requires among other things that before the jury may consider a coconspirators statement, it must find three foundational facts by a preponderance of the evidence. The trial court did not instruct the jury in this case according to the July 2001 revised version of CALJIC No. 6.24 and as a result the jurors were not told that they had to find the pertinent facts by a preponderance of the evidence. Instead, the version of CALJIC No. 6.24 the trial court gave told the jury that before coconspirators statements could be considered, the jury had to "determine" the three preliminary or foundational facts.
Defendants trial took place in August 2001 and therefore the revised version of CALJIC No. 6.24 pertained.
The instruction the trial court gave was correct but incomplete in that it did not instruct the jury on the level of proof required for the jury to make the required factual determinations. Where an instruction correctly although generally or incompletely states the pertinent legal principles, the defendant must request elaboration or amplification. (People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Andrews (1989) 49 Cal.3d. 200, 218.) Defendant did not request amplification of the jury instruction in question and therefore is precluded from challenging the instruction on appeal.
Moreover, any prejudice resulting from the omitted language necessarily was harmless. First, defendant includes in his prejudice analysis the March 13 phone conversation between Borders and Nakita Simms. As previously discussed, that conversation was not hearsay and therefore was not subject to the jury instruction. The only evidence to which the noted instruction pertained was the March 16 telephone conversation between Simms and Stanley in which Stanley stated in effect that defendant was looking for paperwork identifying Newton as an informant. His contrary view notwithstanding, the evidence of defendants guilt independent of the erroneously admitted March 16 telephone conversation was significant. As previously discussed, Jeffrey Newtons testimony revealed the details of defendants carjacking, kidnapping, false imprisonment and use of a firearm on March 15. The jury also heard the properly admitted telephone conversation between David Borders and Nakita Simms that established the motive for the noted crimes. They also heard Newtons sister testify that Newton did not return her car until March 17.
That evidence, in our view, meets the preponderance of evidence definition of "more likely than not." But even if insufficient, any error was harmless. Here, again, defendant argues that the error must be assessed under the Chapman standard because it in effect constituted error in instructing the jury on the theory of criminal liability or an element of the crime. Defendant is wrong. The prosecutor did not rely on conspiracy to establish defendants criminal liability. Instead, conspiracy was the theory upon which the prosecutor sought to introduce evidence of statements made by witnesses other than at trial. Consequently, any instructional error was equivalent to the erroneous admission of evidence. Such error is assessed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836-837, and requires reversal if it is reasonably probable the jury would have reached a result more favorable to defendant if the error had not occurred. (Evid. Code, § 353.)
Our conclusion set out above that any error in admitting the March 16 phone conversation between Simms and Stanley was harmless under the more stringent Chapman standard necessarily compels the same conclusion here. Simply stated, it is not reasonably probable the jury would have reached results more favorable to defendant on counts 1 through 4 if the March 16 telephone conversation had not been admitted into evidence. Accordingly, we reject each of defendants claims challenging the admissibility of the tape-recorded phone conversations.
3.
MISTRIAL MOTION
Defendant moved for a mistrial based on two purported grounds: (1) that the prosecutor while questioning Jeffrey Newton had Newton identify a courtroom spectator as a West Side Projects Crip by the name of Barry Harris; and (2) that a juror passed a note to the court in which the juror expressed concern for her safety. Defendant contends the trial court abused its discretion in denying that motion because the incidents violated defendants right to a fair trial. Again, we disagree.
The pertinent details are that during a recess in Jeffrey Newtons testimony, the prosecutor asked the trial court to exclude Barry Harris from the courtroom. According to the prosecutor, Harris was a West Side Projects Crips member who had been at Borderss home and "was part of the final discussions before they released Mr. Newton." In addition to representing that Harris is "a potential witness," the prosecutor expressed the view that Harriss presence in court is "a significant security concern" because Harris had been standing outside the district attorneys office that morning and watched as Jeffrey Newton walked from that office to the courthouse. Harris then got out a cell phone and made a call. The trial court denied the prosecutors request to exclude Harris after noting first, that his name was not on either parties witness list and, next, that he had not done anything that would justify excluding him and thereby violating the constitutional requirement that criminal trials be open to the public.
When trial resumed with Jeffrey Newton on the witness stand, the prosecutor pointed out Barry Harris in the audience and asked Newton if he knew him. Newton identified Harris both by name and by his nickname, Doc, and confirmed that Barry Harris was a member of the West Side Projects Crips. The prosecutor also asked whether Newton had seen Harris earlier in the day and Newton stated that Harris had been standing in front of the district attorneys office and "[g]ot on his cell phone" when Newton came out of the office. The prosecutor then asked, "Does that concern you?" Newton answered, "A little bit."
When trial recessed for lunch, the court advised both counsel that Juror No. 8 had passed a note to the judge expressing concern for the jurors safety given that the case involved the "DEA and informants and her names in the record" as a result of questioning during voir dire. The trial court mentioned for the benefit of defense counsel that there had been a recent trial "just as of last week, where a juror was threatened by using that persons voice mail . . . . [a]nd that juror was dismissed, and an alternate was put in her place." The trial court speculated that Juror No. 8 had read an article in the local newspaper about the case in which the juror was threatened "[a]nd that would heighten her sensibilities, I would think." The trial court advised the attorneys that when court resumed following the lunch break, the court was "going to address" the jurors concerns.
The court delayed that inquiry until start of trial the following morning. After calling Juror No. 8 into the courtroom, the judge explained that he would address the concern she had expressed in her note. First, the judge commented that situations in which jurors are threatened are "extremely rare." The judge then asked Juror No. 8 whether she had read the article in the paper and the juror stated that she had not read it but she had heard about. However, the juror informed the court that her "concern was even before that. Just even being interviewed, it concerned me." The judge explained that jurors names are deleted from the court records and jurors are referred to only by number and only in the original transcript of jury selection, "if there was ever an appeal, are you identified as a person." The trial court then asked, "With all this said, my question to you now is, Is your feeling about this topic and information divulged — would that in any way at the present time influence your verdict in any way?" Juror No. 8 answered, "No, sir." The trial court asked, "The oath you took that you would listen to all this evidence and render a verdict based upon what you see and hear in the courtroom and follow the law at the end of the case, you still would maintain the integrity of that; is that correct?" Juror No. 8 answered, "Yes, sir." Finally, the judge stated, "Yeah. And those other things that have occurred, already have occurred — I cant change that, as you know — before we had this discussion. But as I say, the record will delete your name. The law has provided for that about three years ago. And so if anything comes up of any consequence that your sensibilities are affected such that the oath that we have just talked about is in any way jeopardized, let me know." After Juror No. 8 confirmed that she would do that, the judge asked her to wait with the other jurors in the corridor outside the courtroom.
We assume the trial court misspoke and meant to say identified by name, rather than "identified as a person."
In denying defendants motion for mistrial, the trial court noted that Juror No. 8 had reaffirmed her oath that as a juror she would not be influenced in reaching a verdict in this case by anything outside the courtroom. As for the purported negative impact of allowing Newton to identify Barry Harris as a gang member, the trial court noted that defendants gang affiliation was well established by other evidence at trial, namely the testimony of Detective Redfearn who testified as a gang expert and identified both defendant and defendants brother as gang members.
Defendant contends first that because Juror No. 8 was concerned for her safety "she already must have made up her mind as to the guilt of [defendant], at least as to the gang allegations," and therefore defendant was denied his constitutional right to a trial by a fair and impartial jury. We disagree.
"A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial [motion]." (People v. Silva (2001) 25 Cal.4th 345, 372.) Contrary to defendants assertion, it does not follow from a jurors concern for his or her physical safety that the juror has necessarily reached a conclusion regarding the defendants guilt or innocence. The absence of any logical connection between the two propositions is further demonstrated by the assurance given by the juror in this case that she would base her verdict solely on the evidence presented in the courtroom. Defendant simply has failed to demonstrate that Juror No. 8 was biased or otherwise violated her oath as a juror. Therefore, defendant has failed to demonstrate that her presence on the jury deprived him of his right to a fair trial.
With respect to Newtons testimony regarding Barry Harris and Harriss presence in court, we first note that defense counsel did not object to that evidence in the trial court. By failing to object, defendant has waived any issue on appeal related to the admission of that evidence at trial. (Evid. Code, § 353; People v. Anderson (2001) 25 Cal.4th 543, 586.)
In any event defendants claim is meritless. Barry Harriss presence outside the district attorneys office and then later in court during Jeffrey Newtons testimony was relevant to Newtons credibility as a witness, in general, and in particular to explain Newtons demeanor while testifying. (See People v. Burgener (2003) 29 Cal.4th 833, 869 ["Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible."]) Moreover, and as the Attorney General points out, Harriss presence in court during Newtons testimony was also pertinent to the Penal Code section 186.22, subdivision (b)(1) criminal street gang allegations in that his presence suggested a gang interest in and connection with the trial.
Defendant had the opportunity to cross-examine Newton regarding Harris and could also have subpoenaed and called Harris as a witness at trial. The circumstances here are nothing like those in Norris v. Risley (9th Cir. 1990) 918 F.2d 828, which defendant cites to support his claim that Newtons testimony regarding Harris violated defendants right to confront and examine witnesses. In Norris, courtroom spectators wore buttons reading "Women Against Rape" during a rape trial. The Ninth Circuit held that the buttons were akin to evidence urging the jurors to find the defendant guilty. Because the buttons could not be confronted and cross-examined their presence in the courtroom violated the defendants constitutional right to a fair trial. (Id. at p. 830.)
For each of the reasons discussed, we reject defendants claim that the trial court abused its discretion in denying defendants motion for mistrial.
4.
SUFFICIENCY OF THE EVIDENCE
Defendant raises various challenges to the sufficiency of the evidence. The legal principles by which we assess such claims on appeal are well settled. "In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is "evidence which is reasonable, credible and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
With the foregoing principles in mind we first address defendants claim that the evidence was insufficient to support his conviction for assaulting Darlene Butts as alleged in count 5.
A. Count 5
According to the evidence recounted above, defendant fired a gun into the passenger compartment of the car in which Darlene Butts and Garry Allison were seated, Darlene in the drivers seat and Garry in the front passenger seat. The bullet defendant fired lodged in the dashboard of the car. Butts and Allison both testified that defendant fired the gun after they refused defendants request for a ride.
The jury found defendant guilty based on the noted evidence of assaulting Darlene Butts with a firearm (count 5) and also assaulting Garry Allison with a firearm (count 6). Defendant contends the evidence was insufficient to show he intended to inflict injury on Butts because there was no evidence that he pointed the gun at her. Defendant acknowledges that under People v. Williams (2001) 26 Cal.4th 779, "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) Because we are bound to follow Williams, a point defendant concedes, we will not further address defendants claim, which he purports to raise only to preserve the issue for further review.
Defendant also contends that even under Williams, the evidence was insufficient to support the jurys verdicts finding him guilty of assaulting Butts. Defendant cites Buttss testimony that defendant pointed the gun at Garry and then he just shot at him. Defendants argument overlooks what in our view is the critical fact, namely, that defendant was pointing a loaded handgun in the direction of both Garry and Darlene and therefore was in a position to instantly fire at each of them. (See People v. Thompson (1949) 93 Cal.App.2d 780, 782.) The noted evidence was sufficient to support defendants conviction on count 5 for assault with a deadly weapon on Darlene Butts.
B. Counts 1 through 3
Defendant contends the evidence was insufficient to support the jurys true findings on the Penal Code sections 12022.5 and 12022.53 allegations that defendant personally used a gun in committing the crimes of kidnapping, false imprisonment, and carjacking. We disagree.
According to the testimony of Jeffrey Newton, set out above, defendant got into Newtons car, and after sitting down in the passenger seat, defendant lifted his shirt to expose a handgun in the waistband of defendants pants. The handgun appeared to Newton to be a nine-millimeter. After revealing the gun to Newton and placing his hand on the exposed gun handle, defendant told Newton to drive to David Borderss house. Defendant contends, citing this courts opinion in People v. Jacobs (1987) 193 Cal.App.3d 375, that because defendant did not actually remove the gun from his waistband or make any threat to use the gun after displaying it to Newton, that he did not "use" the gun within the meaning of either Penal Code section 12022.5 or 12022.53.
The test this court articulated in People v. Jacobs, supra, has been refined, most notably in People v. Granado (1996) 49 Cal.App.4th 317, which holds that a gun use occurs within the meaning of Penal Code section 12022.5 when the evidence shows the defendant "displayed a firearm in order to facilitate the commission of an underlying crime . . . ." (Id . at p. 325.) "Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from [Penal Code] section 12022.5(a)." (Ibid.)
According to the evidence recounted above, the jury could reasonably infer that defendant revealed the gun tucked in the waistband of his pants in order to intimidate Newton and thereby facilitate Newtons compliance first with defendants directive that he drive to Borderss house and next with Borderss directive that Newton get out of the car go inside the house. Newton testified that he drove to Borderss house because defendant had showed him the gun. Newton also testified that he did not run once he arrived at the house and instead complied with Borderss directive that he get out of the car and go inside because defendant had a gun.
Defendant argues that because there was no evidence to show that he "used" the gun in Borderss house, the evidence is insufficient to show that defendant used a gun in committing the crime of false imprisonment as alleged in count 2. Defendants argument assumes that the act of detaining Newton in the house was the only act that constituted the crime of false imprisonment. False imprisonment is accomplished by "`"[a]ny exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go . . . ."" (People v. Zilbauer (1955) 44 Cal.2d 43, 51, quoting People v. Agnew (1940) 16 Cal.2d 655, 659.) Defendant deprived Newton of his liberty and thereby falsely imprisoned him by using force to compel him to remain in the car and then to drive to Borderss house. In other words, defendant accomplished the carjacking and false imprisonment by the same act of intimidating Newton by displaying the gun in the waistband of defendants pants. In committing that act, defendant personally used a firearm within the meaning of Penal Code section 12022.5.
In sentencing defendant, the trial court recognized that defendant accomplished the carjacking and false imprisonment by the same act and therefore stayed execution of defendants sentence on the false imprisonment conviction.
5.
CONSOLIDATION OF TWO CASES
The district attorney originally filed the charges that are the subject of this appeal as separate cases. In the first case, the district attorney charged defendant with the March 1, 2000, assaults on Butts and Allison. In the second case, the district attorney charged defendant and David Borders with the March 15, 2000, carjacking, false imprisonment, and kidnapping of Jeffrey Newton. Before trial, the district attorney moved pursuant to Penal Code section 1098 to consolidate the two cases and conduct a joint trial of defendant and Borders. The prosecutors motion focused only on the circumstances under which Borders and defendant could be tried jointly and did not address the question of whether the two separate cases against defendant should be joined in a consolidated pleading and tried together. Defendants opposition focused primarily on whether he and Borders should be jointly tried. Defendant did cite Penal Code section 954 and briefly addressed the question of whether the two separate cases against him involved offenses of the same class of crime and therefore could have been charged in a single accusatory pleading. Defendant also briefly argued that even if the offenses in both cases were of the same class of crime, consolidation of the two cases would be prejudicial to defendant because a weaker case would be joined with a stronger case, thereby bolstering the former.
At the hearing on the prosecutors motion, Borders confirmed that he had not filed opposition to the motion. Defendant noted that only the second case included gang allegations and argued that evidence pertinent to those allegations would be prejudicial in assessing his guilt in the first case charging the assaults on Butts and Allison. After noting that there was cross-admissibility of evidence, namely evidence that Newton (the kidnapping victim) had heard that defendant had fired a gun into a car and therefore was intimidated by defendant, which the trial court concluded was relevant to show the victims fear, the trial court granted the motion.
Defendant contends the trial court abused its discretion in granting the prosecutors motion to consolidate the charges pertaining to the carjacking, false imprisonment, and kidnapping of Jeffrey Newton (counts 1 through 4) with the charges related to the assault with a deadly weapon on Darlene Butts and Garry Allison (counts 5 through 8). Defendant contends that by granting that motion, the trial court impermissibly allowed the prosecution to bolster the weaker Newton counts with the stronger counts involving Butts and Allison. We disagree.
"Penal Code section 954 permits consolidation for trial of two or more offenses of the same class of crime." (People v. Hill (1995) 34 Cal.App.4th 727, 734.) Offenses are of the same class of crime if they possess common characteristics or attributes. (People v. Kemp (1961) 55 Cal.2d 458, 476.) The carjacking, forcible false imprisonment, and kidnapping of Jeffrey Newton while using a gun and the assaults with a firearm on Butts and Allison all involve assaults on the person. Assaultive crimes against the person are considered crimes of the same class and therefore are properly joined under Penal Code section 954. (Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135, citing People v. Rhoden (1972) 6 Cal.3d 519, 524-525.)
Because the requirements for consolidation were met in this case, defendant must have made a clear showing of potential prejudice in order to show that the trial court erred in granting consolidation. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) Otherwise, defendant must show "`that joinder actually resulted in "gross unfairness" amounting to a denial of due process. [Citation.]" (Ibid.)
Defendant has not made either showing. He has not made a clear showing of potential prejudice based on the circumstances that existed at the time the court granted the consolidation motion. In that respect, defendant argues, citing Williams v. Superior Court (1984) 36 Cal.3d 441, that the evidence pertinent to the consolidated charges was not cross-admissible. Although cases continue to identify cross-admissibility of evidence as a pertinent consideration (see, e.g., People v. Ochoa, supra, 19 Cal.4th at p. 409) we question the continued validity of that factor. Penal Code section 954.1, added in 1990 by Proposition 115, states, in pertinent part, that, "In cases . . . where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact." We agree with the our colleagues in Division One of the First District that cross-admissibility of evidence is no longer a valid consideration and that in reviewing the denial of a motion for severance the only consideration "is whether the prejudice to the defendant from joinder of the cases outweighed the benefits." (People v. Hill, supra, 34 Cal.App.4th at p. 735.)
Citing factors pertinent to cases involving severance motions, defendant argues that consolidation was prejudicial because the gang evidence, which only was pertinent to the charges involving the kidnapping, et cetera, of Jeffrey Newton, was highly inflammatory. According to defendant that evidence, combined with the testimony of Butts and Allison that defendant fired a gun into their car, would lead the jury to believe defendant had a gun when Newton picked up defendant. Because the charges related to the kidnapping of Newton included gang allegations and therefore the so-called highly inflammatory gang evidence would have been admitted in evidence in a separate trial on those charges we can only interpret this argument as a claim that the evidence pertinent to the Butts and Allison charges bolstered the charges related to the Newton kidnapping. In other words, this claim is merely a different articulation of defendants assertion that he was prejudiced by joinder of the stronger Butts and Allison case with the weaker Newton case.
Defendant bases his assertion that the Butts and Allison case was the stronger because there were two eyewitnesses as well as forensic evidence offered to prove the charges. In contrast, defendant notes that only one witness, Jeffrey Newton, testified to the essential factual details of the charges alleged in counts 5 through 8, the kidnapping, false imprisonment, carjacking, and felon in possession of a firearm charges. We do not share defendants view that the number of witnesses necessarily reflects the strength of the pertinent evidence. More significantly, defendants argument does not constitute a clear showing of potential prejudice resulting from joinder of the charges in this case. Therefore, we must reject defendants claim that the trial court erred in granting the prosecutions motion to consolidate the charges. (People v. Ochoa, supra, 19 Cal.4th at p. 409.)
Defendant does not claim and therefore has not shown actual prejudice during trial as a result of the charges being consolidated.
6.
SENTENCING
Defendant raises various claims of sentencing error either expressly or disguised as claims of error in the abstract of judgment. In this latter regard, defendant first claims that the abstract of judgment must be corrected to reflect the fact that the trial court stayed execution of the sentence imposed on count 1.
The pertinent details are that in sentencing defendant, the trial court selected count 3, the carjacking, as the base term. The trial court calculated the term on that crime plus the Penal Code section 186.22, subdivision (b)(1) gang enhancement as 15 years to life which the trial court tripled under the pertinent provision of the three strikes law for a total term of 45 years to life. The court then imposed a determinate term of 10 years for the gun use enhancement the jury found true in connection with count 3. The trial court next sentenced defendant on count 7, the charge that defendant shot at an occupied motor vehicle, to a term of 25 years to life under the three strikes law, to run consecutive to the term of 45 years to life imposed on count 3. In sentencing defendant on count 1, the kidnapping conviction, the court struck the prior serious felony convictions (the "strikes") and imposed the mid-term of five years, plus an additional 10 years for the gun use allegation found true in connection with that charge. The trial court believed that the gang enhancement could only be imposed once but stated "nonetheless, Im going to run that concurrent, since Ive stricken the strikes. It wont change the total time, even if the gang allegation were imposed. So thats 5 [years] for the charge and 10 for the use. And the 2 years for the gang allegation would be stayed anyway because of multiple use . . . ."
The abstract of judgment incorrectly identifies the crime as shooting at an inhabited dwelling, an error defendant raises as his final claim on appeal. We will direct the trial court to amend the abstract to reflect the correct violation of Penal Code section 246.
It is clear to us that the trial court did not stay the sentence imposed on count 1 but instead ordered that sentence to be served concurrent to the sentences imposed on counts 3 and 7. What the trial court stayed, incorrectly as we shall explain, was the gang enhancement based on the trial courts belief that gang enhancements may only be imposed once.
The trial court incorrectly stayed execution of the gang enhancement first because the court was wrong in its view that the enhancement could only be imposed once. We held in People v. Akins (1997) 56 Cal.App.4th 331, that if Penal Code section 654 does not bar punishment for each crime, then it also does not bar imposition on each crime of a related gang enhancement under Penal Code section 186.22, subdivision (b)(1). (People v. Akins, supra, 56 Cal.App.4th at pp. 337-339.) In addition, staying the gang enhancement was incorrect because enhancements must either be imposed or stricken. (People v. Jones (1992) 8 Cal.App.4th 756, 758.) Because the trial court did not stay execution of the sentence on count 1, the count to which the enhancement pertained, the trial court should either have imposed the gang enhancement or stricken it. Because the trial court incorrectly stayed execution of the enhancement, we will remand this matter to the trial court for resentencing.
Citing People v. Jones, supra, defendant argues that the trial court also incorrectly stayed execution of enhancements imposed on other counts. Specifically, defendant contends that the trial court erred in staying, rather than striking, the gun use enhancements imposed on counts 1, 2, 5, and 6, and the gang enhancements imposed on counts 1 and 2. Defendant is wrong.
As previously discussed, the trial court did incorrectly stay execution of the gang enhancement imposed on count 1 and we will direct the court to modify defendants sentence either by lifting the stay or striking that enhancement. Contrary to defendants assertion, and also as previously discussed, the trial court did not stay execution of the gun use enhancement imposed on count 1. The court imposed a 10-year term in connection with that gun use enhancement and ordered that the base term and enhancement run concurrent to the sentences imposed on counts 3 and 7.
The trial court did stay execution of the sentences imposed on counts 2, 5, and 6 pursuant to Penal Code section 654 and therefore necessarily stayed execution of the terms imposed on the related enhancements. "Where the base term of a sentence is stayed under [Penal Code] section 654, the attendant enhancements must also be stayed." (People v. Bracamonte (2003) 106 Cal.App.4th 704, 709, citing People v. Guilford (1984) 151 Cal.App.3d 406, 411.)
As an alternate claim, defendant contends that if the trial court did not stay execution of the sentence imposed on count 1, the kidnapping charge, it should have. Defendant contends multiple punishment for the kidnapping (count 1) and carjacking (count 3) of Jeffrey Newton violates Penal Code section 654 which states in pertinent part that, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654.)
Penal Code section 654 prohibits multiple punishment for multiple offenses that arise from the same act. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) When the defendant commits more than one physical act during a criminal enterprise the question is whether the course of criminal conduct is divisible and "therefore gives rise to more than one act within the meaning of [Penal Code] section 654." (Neal v. State of California, supra, 55 Cal.2d at p. 19.) Resolution of that question, in turn, "depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid.) Whether the defendant had multiple criminal objectives is a question of fact that the trial court must resolve. As with all factual determinations, we must affirm the trial courts finding if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
It is undisputed that defendants act of carjacking was the means by which his act of kidnapping Jeffrey Newton was accomplished. However, the evidence also shows that after defendant delivered Newton to David Borderss home, defendant kept Newtons car. From that evidence the trial court could find that defendant had a separate intent and objective in carjacking Newton, namely, to keep and use Newtons car, at least for the duration of the kidnapping. Although a close question, we nevertheless conclude that the trial courts implied finding that defendant had multiple criminal objectives in carjacking and kidnapping Newton is supported by the evidence and we therefore reject defendants claim that the kidnapping sentence should have been stayed under Penal Code section 654.
DISPOSITION
The judgment is affirmed and the matter remanded to the trial court to resentence defendant on count 1, the kidnapping conviction, by either imposing or striking the Penal Code section 186.22, subdivision (b)(1) criminal street gang enhancement found true in connection with that count. The trial court is directed to correct the abstract of judgment to reflect that defendants conviction on count 7 is for violating Penal Code section 246 by shooting into an occupied motor vehicle. The court is further directed to prepare an amended abstract of judgment that reflects the trial courts disposition of the gang enhancement on count 1 and that correctly reflects defendants conviction on count 7 and to forward a copy of the amended abstract to the appropriate agencies.
We concur: Hollenhorst Acting P. J. and Ward J.