Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF101889B & SF101889C
BLEASE, Acting P. J.
A jury convicted defendants Antoine Tyson and Antoine White of second degree robbery (Pen. Code, § 211). In a bifurcated proceeding the trial court found true the allegations against the defendants regarding prior convictions and prison terms. Defendant Tyson received the upper term of five years plus an additional year for each of his prior prison terms for a total sentence of seven years. Defendant White received the upper term of five years, which was doubled pursuant to the three strikes law. The court sentenced him to an additional five years for his prior serious felony conviction, and an additional year for serving a prison term on the same conviction. White’s total sentence was 16 years in prison.
References to an undesignated section are to the Penal Code.
Tyson argues: (1) there was insufficient evidence to support a conviction for robbery, (2) the trial court erred in failing to instruct on the lesser included offense of grand theft, and (3) the trial court was unaware of its sentencing discretion. White joins in the issues raised by Tyson, and also argues: (1) the trial court excluded certain evidence, depriving him of a defense, (2) the prosecutor committed misconduct, (3) imposition of the upper term violated his right to a jury trial and to due process, and (4) the one year enhancement pursuant to section 667.5 was legally unauthorized.
We shall strike White’s one-year sentence enhancement for the prior prison term because it was based upon the same prior offense as the five-year enhancement. We shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Gregory Gill, was at the Club Paradise on the evening of September 30, 2006. Around 1:30 in the morning, he was outside smoking a cigarette. He saw a car pull up, and three men, two of whom were later identified as defendants, got out and went inside the bar. The third man was later identified as Damon Bibbs. A woman was driving, who stayed inside the car.
Roy Saunders was the doorman at the Club Paradise. His job was to collect the cover charge and check identifications when people came through the door. When the car containing defendants arrived at the club, Saunders was in the bathroom. Defendants and Bibbs entered the bathroom while Saunders was in the single stall. One of the three entered the stall, which was shut but which had no lock, while Saunders was still inside. Saunders asked what was going on, and one of them said, “my bad, my bad, we’re sorry.”
Saunders asked if their identifications had been checked at the door. They replied that they had been. Saunders got out of the bathroom as quickly as he could because it felt “strange” to him. After he left the bathroom, Saunders went to Dan Davis, part owner of Club Paradise, and told him that there were three men in the bathroom who had entered the club without having their identifications checked. He told Davis he had a bad feeling about them.
While defendants and Bibbs were still in the bathroom, Gill entered the bathroom. Tyson was in the stall, Bibbs was at the urinal, and White was in front of the sink. Gill waited to use the restroom. When Tyson came out of the stall, Gill passed him to go in. As he passed, one of the three (Gill thought it was White, who was standing by the door) said something to him. Gill was unsure exactly what White said, but it was something confrontational, like, “What the fuck are you looking at? We’re going to fuck you up.” At this point, there were two people blocking the door.
Gill tried to walk out, but someone pushed him back. White then hit him in the face. Gill fell down. When he got up, he was hit two more times in the head. He was unsure who hit him the second and third times. One of the men reached into Gill’s back pocket, grabbed his wallet, and ran out. Gill jumped up and went out after the men, who were leaving through the club. He yelled that the men had stolen his wallet.
Gill saw the men jump in a car and start to speed off. They turned onto the street, where there were railroad tracks. A train was coming through, and they were stopped behind the train. There was a policeman in the parking lot, who pulled the men out of the car and arrested them. Gill lost sight of the men momentarily when they passed out the door of the club, but otherwise was able to track their movements the entire time.
Gill’s wallet was recovered from the bushes where it had been thrown out of the car. Everything was in it except the cash that had been inside. He had a $100 bill, a $50 bill, and some smaller bills.
Three days after the arrests, Tyson was searched in his jail cell as a result of information received from Bibbs’s mother. Tyson had a $100 bill and a $50 bill rolled up in his sock.
Bibbs pled guilty to robbery prior to trial. The jury found both Tyson and White guilty of robbery.
As to defendant White, the trial court found true the allegations that he had previously been convicted of a serious felony (attempted robbery) pursuant to section 1170.12, subdivision (b), that he suffered a prior serious felony conviction (attempted robbery) pursuant to section 667, subdivision (a), and that he was previously imprisoned for the crime of attempted robbery pursuant to section 667.5, subdivision (b). The trial court sentenced White to the upper term of five years for the robbery count, doubled because of White’s prior strike, and added an additional five years for the prior serious felony plus an additional year for the prior prison term, for a total of 16 years.
As to defendant Tyson, the trial court found true the allegations that he had suffered two prior prison terms pursuant to section 667.5, subdivision (b). The court sentenced Tyson to the upper term of five years on the robbery, plus one year for each of the enhancements for a total of seven years in prison.
DISCUSSION
I
Arguments Raised by Both Defendants
A. There Was Sufficient Evidence of Robbery
Defendants argue there was insufficient evidence to support their convictions for robbery. We disagree.
Evidence is sufficient to support a judgment of guilt if, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Young (2005) 34 Cal.4th 1149, 1175.) This is true even where the prosecution relies primarily on circumstantial evidence. (Ibid.)
The jury was given instructions on aiding and abetting. Thus, they were instructed the defendants would be equally guilty of the crime of robbery if they directly committed the crime, or if they aided and abetted the perpetrator. They were instructed that the prosecution was required to prove the defendants knew the perpetrator intended to commit the crime, and that they intended to and did aid and abet the commission of the crime. Whether defendants aided and abetted the robbery was a question of fact for the jury to determine from the totality of circumstances. (People v. George (1968) 259 Cal.App.2d 424, 429.)
The factors upon which the trier of fact may rely in making a determination that a defendant aided and abetted the commission of a robbery are: presence at the scene, companionship, conduct before and after the offense, and flight. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) Here all of those factors were present. Both defendants were present at the scene, they arrived together in the same car and entered and left the bathroom together. They left the bar together. They left in the same car at a high rate of speed before being stopped by the train. Additionally, defendant Tyson was found in possession of two bills matching those stolen from the victim. Defendant White verbally challenged the victim and threw the first punch.
This evidence, viewed in its totality, was sufficient that a trier of fact could reasonably infer that both defendants knew that at least one of the three men intended to commit a robbery and that both intended to and did aid and abet the commission of the robbery.
B. The Trial Court Properly Refused a Grand Theft Instruction
The trial court refused a defense request to instruct on grand theft as a lesser included offense to robbery. The trial court stated that all the evidence was of robbery, and there was no evidence of grand theft. Defendants argue the instruction should have been given because there was no evidence they intended to rob the victim prior to the assault on him, the evidence of fear was equivocal, and the amount of force used was no more than was necessary to remove Gill’s wallet. We agree with the trial court.
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Theft is a lesser included offense on which the trial court has a duty to instruct if the evidence has raised a question as to whether all the elements of robbery were present and there was evidence justifying a conviction of the lesser offense. (People v. Abilez (2007) 41 Cal.4th 472, 514.) If, however, mere speculation supports the defense theory that the intent to steal did not arise until after the use of force, the trial court has no duty to instruct on theft as a lesser included offense. (People v. Duncan (1991) 53 Cal.3d 955, 970-971.)
Defendants’ theory was that the attack on Gill was merely a battery, notwithstanding the fact that Gill’s wallet was stolen after he was beaten. In support of the battery-only theory, they point to the fact that there was no evidence of a specific intent to rob Gill, that the restroom was small, and that Gill could have opened the door in such a way that it irritated White, provoking him to beat Gill without any intent to rob him.
The problem with this theory is that there was no substantial evidence to support it. The restroom was small, and the door could have hit someone when opened, but there was no evidence this happened. In fact, Gill testified he did not remember hitting anyone with the door, that he pushed it open slowly, and felt no resistance when doing so. The specific intent to steal may be inferred from the circumstances of the case. (People v. Hall (1967) 253 Cal.App.2d 1051, 1054.) Here, such intent may be inferred from the verbal threat and physical beating, followed immediately thereafter by the theft of the wallet. Neither Bibbs nor defendants testified.
In short, nothing more than speculation supported a theory that defendants were guilty of any crime other than robbery. There was no substantial evidence that the intent to steal was formed after the beating was over. Therefore, the trial court did not err when it refused to instruct on the lesser offense of grand theft.
C. The Trial Court Properly Exercised Its Sentencing Discretion
Defendants argue the trial court failed to exercise its sentencing discretion when it imposed upper terms. They claim the March 30, 2007, amendments to the Determinate Sentencing Law gave the court discretion to determine whether to impose the lower, middle, or upper term, but that the trial court did not understand its discretion. They argue the trial court’s sentencing discretion is not tied to the weight assigned to aggravating and mitigating factors, as it was prior to the legislation change. They argue that a weighing of factors may now assist the court in exercising its discretion, but does not compel a particular sentencing choice. This claim has no merit.
Defendants’ argument appears to be based upon a statement made by the trial court during sentencing. Specifically, the trial court said, “I have to sentence you gentlemen to the upper term because the factors in aggravation outweigh anything else.” Defendants argue this statement shows the trial court did not understand it had the discretion to sentence them to the middle or lower terms.
A more extensive reading of the trial court’s statements during sentencing show that the trial court understood it had complete discretion to determine the defendants’ sentences. The trial court first explained it could not give either defendant probation because probation was allowed only in unusual circumstances, because the defendants had too many prior felonies, and because the case was not unusual. Then the court said, “I have to balance the factors out and decide what term to give you under 4.420.” The trial court then discussed both aggravating and mitigating circumstances. In summation, the court stated, “I looked at this, isn’t there something more we can say on their behalf[?] I can’t come up with a lot in mitigation.... [¶] Balancing it out as I have to do,... I just have to find and do, that the aggravating circumstances, they really outweigh the mitigating ones.... They argue against low term or middle term. [¶]... I get no pleasure doing this,... this isn’t pleasurable, I have to sentence you gentlemen to the upper term because the factors in aggravation outweigh anything else. We have a couple mitigating, but a lot more aggravating.”
In context, it is apparent that the court felt compelled to exercise its discretion in favor of the upper term because of factors indicating the upper term was appropriate, not because it was unaware it had the discretion to choose a lower term. The trial court’s choice of words appears to have been a reflection of the fact that it took no pleasure in imposing the upper term, but that relevant circumstances warranted the longest sentence possible, and the court would have shirked its duties by imposing anything less than the maximum.
The trial court has the discretion to select one of the three authorized prison terms based on a consideration of the circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. (Cal. Rules of Court, rule 4.420.) Under the amended legislation, the trial court is still permitted to engage in a weighing of the aggravating and mitigating circumstances. Nothing in the new legislation precludes this. The difference now is that the trial court is no longer compelled to impose the middle term unless the aggravating circumstances outweigh the mitigating circumstances, or the mitigating circumstances outweigh the aggravating circumstances. Additionally, the law never compelled a court to impose either the upper or lower term based on the outcome of the court’s weighing process. The trial court’s comments do not indicate it was under this mistaken impression. It is apparent from the record that the trial court did precisely what it was supposed to do.
We conclude the trial court properly understood its discretion in exercising its sentencing choices.
II
Defendant White’s Arguments
A. The Trial Court Properly Excluded Defendant’s Witness
Defendant White proposed calling Angela Mendoza at trial. Mendoza worked at a welding school, and White’s offer of proof was that she would testify White was “in the process of applying to the school[,]” that “he would have been accepted into the school[,]” and that graduates from the school start out earning $25 an hour. White offered Mendoza’s testimony to prove he had no motive to rob the victim.
The prosecution objected to the witness’s testimony, unless White took the stand to testify regarding his intent, and Mendoza’s testimony was used as corroboration. The trial court agreed with the prosecution, stating Mendoza’s proposed testimony was, “[v]ery remote, more irrelevant than relevant here absent [White’s] testimony to that issue.”
White argues the trial court abused its discretion in excluding the testimony because it had “strong probative value to the defense case.” He claims the evidence would have shown he had no motive to commit a robbery because he did not need the money.
A trial court has discretion to exclude evidence if the probative value of the evidence is “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The trial court’s discretion is broad, and we will not overturn its ruling unless it is arbitrary or capricious, exceeding the bounds of reason under the circumstances. (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
In this case, the evidence White sought to admit had little, if any, relevance. He was in the process of applying to the school, but had not completed his application. He was not earning $25 per hour at the time of the robbery, but might earn that amount if he successfully completed school, and if he found a job. His potential to earn money in the future had no bearing on his finances at the time of the offense. In light of the minimal relevance of the witness’s testimony, the trial court’s decision not to waste trial time and risk confusing the issues was well within its broad discretion.
White discusses two cases at length in support of his argument that the exclusion of the evidence deprived him of his due process right to a defense. Both are distinguishable. In the first case, People v. Cegers (1992) 7 Cal.App.4th 988, the trial court excluded the testimony of an expert regarding a syndrome associated with people who have sleep apnea and are awakened during a period of depressed mental functioning. (Id. at pp. 993-994.) The defendant had attacked his family members, who awakened him in the middle of the night. (Id. at pp. 991-992.) The evidence was excluded for a number of reasons, including the trial court’s determination pursuant to Evidence Code section 352 that the jury would be confused by the testimony because it would give “undue credence” to an emerging and untested syndrome. (Id. at pp. 994-995.)
The Court of Appeal disagreed, holding the evidence was central to Cegers’s defense that his appreciation of events at the time was defective, and was neither cumulative nor prejudicial. (People v. Cegers, supra, 7 Cal.App.4th at pp. 992, 1001.) Here, the evidence White sought to admit was not central to his defense that there was an attack but no robbery, because it involved the collateral matter of White’s lack of motive for robbery, and had little relevance to that motive.
Also, in People v. Vu (1991) 227 Cal.App.3d 810, the court stated in dicta that the trial court erred in failing to admit expert testimony regarding the effect of stress on perception. The court stated that the testimony was relevant to the defendant’s claim that he honestly believed the victim was trying to hurt him. (Id. at pp. 814-815.) Here, to the contrary, we have held that the evidence White sought to admit had little, if any relevance, because of its minimal tendency to show that he had no motive for robbery.
We also reject White’s argument that the exclusion of the witness deprived him of his constitutional right to present a defense. The Supreme Court has made clear that “[a]pplication of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendant's right to present a defense.” (People v. Mincey (1992) 2 Cal.4th 408, 440.)
B. The Prosecutor did not Engage in Misconduct
White argues the prosecutor engaged in misconduct during his rebuttal closing argument, when he implied that the defendants had the burden of proof. We disagree.
During closing argument, Tyson’s counsel argued Bibbs, who pleaded guilty, was the only person guilty of a crime. In support of this theory, defense counsel argued that the bar’s security video showed Bibbs holding something black in his hands. Counsel argued this was Gill’s wallet.
In rebuttal, the prosecutor showed the video again and gave the following commentary:
“Mr. Bibbs is gone and walked... we don’t know if he has anything in his hand, we can’t see it.
“But this is the evidence that he had a wallet in his hands, ladies and gentlemen. See him again right here.... Watch his hands and watch him, we don’t know what he’s doing, we can’t see him. We can’t see his hands.... We can see his right hand, left hand, but we can’t see anything in either one.
“Ladies and gentlemen, does he have the wallet? We have no evidence that he has the wallet. We’ve got this. Defense wants you to believe that means he’s got the wallet.”
At this point, White’s attorney objected, “I think I have heard ‘no evidence’ in this particular argument line one time too many. He implies the defense has to put on some evidence, that is not the case.” The trial court responded that the jury knew the prosecution had to prove its case beyond a reasonable doubt.
White now argues the prosecutor’s comments constituted misconduct because they shifted the burden of proof on defendant to show he was not guilty.
A prosecutor’s conduct violates the federal Constitution when it is a pattern of egregious conduct resulting in such fundamental unfairness that the conviction is a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) Conduct that does not render the trial fundamentally unfair may nevertheless be misconduct under state law where the prosecutor has used deceptive or reprehensible methods. (Ibid.)
The prosecutor’s comments during rebuttal argument were not egregious, deceptive, or reprehensible. The prosecutor may fairly respond in rebuttal to arguments made by defense counsel. (People v. Bryden (1998) 63 Cal.App.4th 159, 184.) Furthermore, it is proper for the prosecution to comment on the state of the evidence and to point out that a defendant has failed to produce any evidence on his behalf. (People v. Gaulden (1974) 36 Cal.App.3d 942, 955.) In this case, the prosecutor was merely pointing out that the evidence presented did not support defendants’ version of events. This was not an implication that defendants had the burden of producing evidence, but was a fair comment on the state of the evidence. There was no misconduct.
C. Imposition of the Upper Term did not Violate the Sixth and Fourteenth Amendments.
White argues the imposition of the upper term violated his federal constitutional rights because the aggravating circumstances found true by the trial court were not tried to a jury or proven beyond a reasonable doubt. His claim is based on a line of cases culminating in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).) Cunningham held that California’s determinate sentencing law, which at that time provided “‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime[,]’” violated a defendant’s right to trial by jury because it allowed the trial judge, rather that the jury, the authority to find the facts exposing the defendant to an upper term sentence. (Cunningham, supra, at p. 277 [166 L.Ed.2d at p. 866]; former § 1170, subd. (b).)
The California Legislature amended section 1170 after the Cunningham decision, enacting legislation that allowed trial judges broad discretion to select any term within the statutory range, based on reasons stated on the record. (§ 1170, subd. (b).) The amended version of section 1170, subdivision (b) took effect on March 30, 2007. (Stats. 2007, ch. 3, § 2.) White was sentenced on October 12, 2007. Because it is a law governing the conduct of the trial, it applies to proceedings taking place after the enactment of the trial, even though the underlying crime was committed before enactment. (People v. Sandoval (2007) 41 Cal.4th 825, 845.) Since defendants were sentenced under the amended statute, there was no violation of their right to jury trial when the trial judge exercised his discretion and imposed the upper term.
D. The One-Year Enhancement Should be Stricken
In April 2006, White pleaded guilty to attempted robbery, and was sentenced to a term of imprisonment. This conviction and sentence was the basis of the enhancements alleged against him in the information, and the basis of an additional five-year enhancement pursuant to section 667, subdivision (a), as well as an additional one-year enhancement pursuant to section 667.5, subdivision (b).
Section 667.5, subdivision (b) imposes an additional year for a prior prison term. Section 667, subdivision (a) imposes an additional five years for a prior serious felony conviction.
White argues the one-year enhancement should be stricken pursuant to People v. Jones (1993) 5 Cal.4th 1142. The People concede this is correct, and we agree.
People v. Jones, supra, held that when the voters enacted section 667 they did not intend that a defendant’s sentence would be enhanced for both a prior conviction and the resulting prison term. (People v. Murphy (2001) 25 Cal.4th 136, 156.) Thus, multiple enhancements are not permissible under both section 667.5 and 667. We shall therefore modify the judgment by striking the one-year term under section 667.5.
DISPOSITION
The judgment is modified by striking the one-year enhancement under section 667.5 from White’s sentence. As modified, the judgment is affirmed. Upon remand, the trial court shall send a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SIMS, J., ROBIE, J.