Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino, Douglas M. Elwell, Judge., Super. Ct. No. FCH05843
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Steven Phillip Velderrain appeals from a judgment after a jury convicted him of two counts of first degree attempted murder, one count of first degree robbery, and one count of first degree burglary and found true firearm enhancements. Velderrain contends: (1) insufficient evidence supports his first degree robbery and premeditated attempted murder convictions; (2) the court erroneously admitted into evidence a recorded jailhouse telephone call between a witness and an inmate in violation of his Sixth Amendment confrontation rights, and the court erroneously failed to instruct the jury sua sponte with CALCRIM No. 358 on how to evaluate the telephone call; (3) the court erroneously failed to instruct the jury sua sponte on attempted robbery as a lesser included offense of robbery; (4) the court erroneously denied the release of juror information and denied his motion for a new trial based on jury misconduct, without an evidentiary hearing; (5) the prosecutor committed error when she failed to timely disclose her correspondence with a victim/witness concerning early termination of his probation; (6) the court erred in doubling the firearm enhancements under the “Three Strikes” law; and (7) the abstract of judgment must be corrected to reflect a stayed sentence for count 4. Other than his sentencing contentions, his claims have no merit, and we affirm the judgment as modified.
FACTS
Robert Orozco celebrated his birthday by playing video games and smoking marijuana at home with his friends Eric Nguyen and Frederico Telles. Sometime after 9:00 p.m., Velderrain and his unidentified companion arrived to retrieve a backpack from Orozco’s home. Orozco first met Velderrain several months earlier when Velderrain accompanied his cousin to Orozco’s home to sell and smoke marijuana. On that day, Velderrain left a backpack at Orozco’s home and had since contacted Orozco about retrieving it several times.
Orozco frequently purchased marijuana from Velderrain’s cousin using cash stored in his safe. The record is silent as to whether Velderrain acquired knowledge of Orozco’s safe, its location, or its contents at the prior visit to Orozco’s apartment during which time Orozco purchased marijuana.
Although the visit to retrieve the backpack was unplanned, Orozco welcomed Velderrain and the other man into his home. Velderrain smoked marijuana from Orozco’s bong. About 30 minutes later, Velderrain asked to use the bathroom, which was only accessible through the master bedroom. Once there, he called to Orozco. When Orozco entered the bedroom, Velderrain confronted him with a gun and said something like, “we can do this the easy way or the hard way.” While Orozco was in the bedroom, the unidentified man had locked the front door, pulled out a gun, and told Nguyen and Telles to get on the ground because they were being “robbed.” Pushing the gun away, Orozco fled into the living room to find Nguyen and Telles lying face down on the floor, while the man held them at gunpoint.
Telles remembered the events slightly differently than did Orozco and Nguyen. Telles testified the man went into the bedroom with Orozco, and Velderrain stood by the front door. Telles testified Velderrain said, “You guys know what to do” or, “Put your head down, you guys are getting robbed.”
Orozco attempted to exit the apartment through the front door, which precipitated a scuffle with the unidentified man. The telephone rang and Orozco grabbed it from the receiver despite being instructed not to do so. The man hit Orozco in the back of the head with his gun, causing a two-inch laceration and bleeding. Orozco fell onto the kitchen counter, grabbed a knife, and swung the knife at the man. The man pointed his gun at Orozco and pulled the trigger; it misfired.
Asserting the guns were fake or out of bullets, Orozco cried to his friends for help. The man ordered Velderrain to “cap [Orozco’s] ass.” Telles and Orozco charged the man near the front door and, in a matter of moments, the front door swung open, and shots were fired. Telles, Orozco, and the man exited the apartment. Velderrain also exited and there was more gunfire.
Nguyen, who initially remained on the floor during the struggle and shooting, exited the apartment through a sliding glass back door. On his way out, he encountered Velderrain leaving the bedroom. Velderrain looked at Nguyen and then ran toward the front door. Nguyen heard the second round of gunfire.
Telles sustained one gunshot wound to his head, one to his back, and two to his buttocks. Orozco was shot in his hip.
Before police arrived, Orozco reentered his apartment and found his safe moved from the master bedroom closet to the middle of the master bedroom. He did not move it himself. There was nothing missing from the safe or the apartment.
Investigating police officers arrived and took statements from Orozco, Telles, and Nguyen. Orozco, concerned for his own criminal liability, initially was uncooperative.
Detective Matthew Weinstein conducted the crime scene investigation. He recovered a bong in the living room; Velderrain’s fingerprints were later determined to be on the bong. He saw the safe between the master bathroom and the master bedroom. He also found two.45 caliber shell casings and three.22 caliber long-rifle casings in the apartment.
Three months later, Nguyen was able to identify Velderrain as one of the gunmen from a six-pack photographic lineup. Two years after the incident, Nguyen, Orozco, and Telles attended a live lineup. Each man identified Velderrain as one of the gunmen.
An information charged Velderrain with attempted murder (Pen. Code, §§ 664, 187, subd. (a)) (counts 1 and 2), first degree residential robbery (§ 211) (count 3), and first degree residential burglary (§ 459) (count 4). The information alleged he committed counts 1 to 3 within the meaning of section 12022.53, subdivisions (b) to (d). The information also alleged he suffered a prior strike conviction (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On the eve of Velderrain’s trial, Orozco received a telephone call from jail inmate Armando Ornelas. During the call, Ornelas told Orozco he had recently spoken to a “mutual friend” in whose case Orozco was involved and that he was calling Orozco on that friend’s behalf. Ornelas indirectly stated the friend asked him to tell Orozco he would be paid money if he failed to show up at court or had a memory lapse on the day of his testimony. Velderrain’s was the only trial in which Orozco was involved. The conversation was recorded as part of the normal jail procedure. Both Ornelas and Orozco were aware the conversation was recorded.
The day after receiving the call, Orozco informed the prosecutor assigned to the case of the call. Orozco told the prosecutor he was afraid, and he expressed his desire to leave the country. The prosecutor reminded Orozco he was on probation and leaving the state would violate the terms of that probation. The prosecutor told Orozco the trial judge might allow for early termination if he did well on probation and, when probationers do well, her office usually does not oppose such requests.
At trial, the prosecutor’s theory of the case was that Velderrain committed robbery; she did not request aiding and abetting instructions. Testimony from Orozco, Telles, and Nguyen formed the basis of her theory; however, the tape and transcript of the telephone conversation between Orozco and Ornelas were also admitted into evidence at trial over Velderrain’s objection. The court instructed the jury with CALCRIM No. 371 regarding how to evaluate evidence suggesting a defendant tried to discourage a witness from testifying or to obtain false testimony.
Velderrain argued he lacked the specific intent to steal as required to support a robbery conviction. He offered the testimony of two people near the incident who could not conclusively identify him as one of the people at the scene. Consistent with this defense, Velderrain requested instructions on attempted robbery not be given. The trial court found no sua sponte obligation to give the instruction existed.
The jury convicted Velderrain of all counts and found true all the allegations. At a bench trial, the trial court found true he suffered one prior strike conviction.
After the jury reached its verdict, defense counsel conferred with the jurors regarding the proceedings. When asked about the effect of the victims’ inconsistent identification testimony, the jury foreperson told counsel that during Amber Alerts, she “couldn’t remember what her kids wore, so it did not matter[, ]” and “studies show people who witness crimes cannot identify people’s looks or clothing.” Believing this juror introduced similar outside information during deliberations, defense counsel moved to obtain juror identification information. The prosecutor opposed the motion, and Velderrain replied. The trial court denied the motion. With respect to the first comment, the court reasoned the juror’s comment she found certain types of evidence less persuasive than others was not misconduct because it concerned the weighing of evidence, the proper function of the jury. As to the second comment, the court explained his claim was too speculative because the jury foreperson’s comment was made to counsel after trial, and there was no indication she made the same comment during jury deliberations.
Velderrain moved for a new trial based on, among other things, the ground of jury misconduct because the jury foreperson introduced or considered matters outside the record, and because the prosecutor failed to disclose her “‘deal’” with Orozco. After explaining it had read and considered the moving papers and discussed the matter with counsel in chambers, the trial court denied the motion. Velderrain filed a motion for reconsideration of the new trial motion. The court denied the reconsideration motion, explaining the jury foreperson’s statements concerned her deliberative process and was not misconduct. The court further explained the prosecutor did not offer a deal but merely expressed her personal opinion of what the probation department would do.
The trial court sentenced Velderrain to a total prison term of 180 years and 8 months as follows: two consecutive terms of 14 years plus 50 years to life each for counts 1 and 2; a consecutive term of two years and eight months plus 50 years to life for count 3; and a stayed term of two years and eight months on count 4.
After trial and before taking maternity leave, the prosecutor noted in the case file she did not believe her office would oppose Orozco’s petition for early termination of probation. The prosecutor did not disclose her conversations with Orozco to the court or to defense counsel until after the jury reached its verdict.
DISCUSSION
I. Sufficiency of the Evidence
A. Robbery
Velderrain contends insufficient evidence supports his first degree robbery conviction because there was no evidence he intended to steal or moved the safe. We disagree.
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find defendant guilty beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104 (Valdez).)
“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.) Acting for the purpose—or with the intent—to steal is therefore a necessary element of a robbery. (§ 211.) The taking element of robbery includes two necessary components: gaining possession of a victim’s property and asportation or carrying it away. (People v. Hill (1998) 17 Cal.4th 800, 852 (Hill).) “‘Whether appellant conveyed the [victim’s property] one yard or one mile from the presence of his victim is immaterial insofar as the element of asportation is concerned.... His escape with the loot is not necessary to complete the crime. [Citation.]’ [Citation.]” (People v. Pham (1993) 15 Cal.App.4th 61, 68 (Pham).)
1. Intent
Velderrain claims there was no evidence he was aware of the safe and, therefore, he could not form the requisite intent to commit a robbery. Not so. While intent is a required element of robbery, section 211 does not require that intent to rob be centered on a particular object. (People v.Brito (1991) 232 Cal.App.3d 316, 323-324 (Brito).) Thus, even if the prosecutor did not establish Velderrain was aware of the safe, its location, or its contents, the jury heard other evidence Velderrain intended to rob Orozco.
There was sufficient evidence for the jury to reasonably conclude Velderrain was present when Orozco purchased marijuana from Velderrain’s cousin using cash he kept somewhere in the apartment. Velderrain could have therefore deduced Orozco kept large amounts of cash and drugs in his home. Additionally, the jury heard evidence Velderrain and the man pulled their guns and stated, “we can do this the easy way or the hard way, ” “you know what to do” or you’re being “robbed, ” and “where’s the stuff.” Based on the entire record, the jury could reasonably conclude Velderrain intended to steal the cash and drugs located somewhere in Orozco’s apartment. Thus, there was sufficient evidence Velderrain intended to rob Orozco.
2. Asportation
Velderrain claims there was no evidence he personally moved the safe. Again, we disagree.
Orozco and Nguyen both testified Velderrain went into the master bedroom. It is true Telles claimed the man went into the bedroom and Velderrain remained in the living room, but because Orozco knew Velderrain it is certainly reasonable for the jury to have concluded Telles was mistaken. Nguyen and Telles testified they were detained in the living room at gunpoint and thus they did not have access to the safe. Nguyen testified Velderrain left the bedroom after, or while, the others exited the apartment. Finally, Orozco testified he reentered his bedroom after the incident to find the safe moved from its prior location. Orozco stated he did not move the safe. As there were only two people who had access to the safe, and one of the men, Orozco, said he did not move the safe, there was sufficient circumstantial evidence Velderrain moved the safe.Existence of circumstances that might lead a jury to find otherwise does not control our decision as it is the jury’s duty to determine which evidence it finds convincing and our review of the jury’s decision is limited. (Valdez, supra, 32 Cal.4th 73, 104.)
Velderrain claims the Attorney General’s reliance on Hill, supra, 17 Cal.4th 800, suggests the Attorney General concedes the only basis for his robbery conviction is as an aider and abettor and because the trial court did not instruct the jury on aiding and abetting, we must reverse his robbery conviction. In Hill, supra, 17 Cal.4th at pages 851-852, the court found sufficient evidence to conclude the asportation perpetrated by defendant’s accomplice was enough for a robbery, and defendant possessed the intent to aid and abet the robbery. First, the Attorney General relies on Hill to support his claim Velderrain and the unidentified man intended to rob and that the movement of the safe constituted sufficient asportation for a robbery. Second, Velderrain fails to consider the trial court need only instruct the jury on aiding and abetting if there is no evidence he perpetrated the robbery. As we explain above, there is sufficient circumstantial evidence to show this. Based on our review of the record, there was sufficient circumstantial evidence from which the jury could reasonably conclude Velderrain moved the safe.
B. Attempted Murder
Velderrain contends insufficient evidence supports his first degree attempted murder convictions because there is no evidence of premeditation and deliberation as the attempted murders arose from an “unexpected fight and unconsidered impulse.” Not so.
To sustain a first degree attempted murder conviction, the jury was required to conclude Velderrain’s acts were willful, deliberate and premeditated. (§ 189.) In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the California Supreme Court set forth three categories of evidence to aid in analyzing the sufficiency of evidence demonstrating premeditation and deliberation: (a) evidence of planning, (b) evidence of motive, and (c) evidence of a particularly exacting killing suggesting a preconceived design. “‘The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.’ [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1081 (Koontz).) The Anderson court noted courts will affirm guilty verdicts when there is extremely strong evidence of planning; or evidence of motive together with either evidence of planning or evidence of a manner of killing demonstrating a preconceived design. (Anderson, supra, 70 Cal.2d at p. 27.)
To guide us in our application of the Anderson factors, Koontz, supra, 27 Cal.4th at pages 1081-1082, and People v. Brito (1991) 232 Cal.App.3d 316 (Brito), are instructive. In Koontz, defendant shot the victim in the stomach after having argued with him over a pair of keys. (Koontz, supra, 27 Cal.4th at pp. 1081-1082.) Prior to their argument, defendant armed himself with two concealed and loaded handguns. He then locked himself and the victim together in an office. The court concluded this was evidence of planning. Defendant fired a shot at the victim’s abdomen when the victim refused to give up a pair of keys and defendant then prevented others from calling an ambulance, without which the victim was certain to die. The court concluded this was evidence of both motive (robbery) and a manner of killing indicative of a preconceived design to kill (shooting at a vital body area and preventing medical care). (Ibid.)
In Brito, supra, 232 Cal.App.3d at pages 323-324, defendant posed as a hitchhiker and, when a driver offered him a ride, defendant held a gun to his face and demanded money and gold. When the victim attempted to flee, defendant shot him in the back. The court opined defendant’s pointing a loaded gun at the victim, which suggested defendant contemplated in advance the possibility of shooting, was evidence of planning. The court found defendant was motivated to kill the victim because the victim did not cooperate with defendant’s demands. The court found defendant’s shooting the unarmed victim in the back as he fled, suggesting he had decided ahead of time to kill if the victim did not comply, was indicative of a preconceived design. In addition, defendant’s post-arrest statements that he had gone “‘out to rob a mark’” and when the mark tried to run, he “‘blew him away, ’” also suggested defendant planned to kill if the victim attempted to flee. (Ibid.)
Here, there was sufficient evidence of planning, motive, and killing indicative of a preconceived design. Like the defendants in Koontz and Brito above, Velderrain and the man came to his victims armed with concealed loaded guns. Additionally, Velderrain, like the defendant in Koontz, secluded himself and one of the victims in a room where he brandished his weapon. Meanwhile, his accomplice locked the front door of the apartment and stood guard. This evidence demonstrated Velderrain and the man’s plan to divide the victims and conquer them through the use of their weapons. Additionally, their actions were part of the process of effectuating a robbery, which supplies Velderrain’s motive. That Velderrain used his weapon to fire at the head and stomach, critical areas of his victims’ bodies, suggests a manner of killing indicative of a deliberate intent to kill. A preconceived design to kill is also reflected in testimony of the unidentified man’s commanding Velderrain to “cap [Orozco’s] ass, ” and Velderrain’s declaration, “We can do this the easy way or the hard way.” Application of the Anderson factors thus shows the attempted murders were premeditated and deliberate.
Velderrain attempts to distinguish Brito by arguing neither he nor his accomplice put a gun in the victims’ faces or made any demands of the victims with which they refused to comply but only had the guns to frighten the victims. Velderrain minimizes his conduct to say the least. All three victims testified either Velderrain or the man pointed their guns at them at some point. At least one of the victims testified Velderrain and his accomplice made demands of the victims, such as, “Where is the stuff?” and, “Put your head down.” When Telles and Orozco began to scuffle with one of the robbers, they clearly were not complying with those demands. Lastly, Velderrain’s claim his gun was only to frighten the victims is plainly untrue because both of the guns were loaded and both were discharged.
Next, Velderrain claims no shooting occurred until Orozco and Telles confronted them, and Nguyen was unharmed even after standing face to face with Velderrain. These facts demonstrate Velderrain was motivated to kill Orozco and Telles after confirming they would not submit to the robbery, and he did not have a similar motive to kill Nguyen, who did submit. That Velderrain may not have solidified his motive to kill Orozco and Telles until seconds before shooting does not defeat a finding of premeditation and deliberation. (Brito, supra, 232 Cal.App.3d at p. 324 [“‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold calculated judgment may be arrived at quickly....’ [Citation.]”].)
Finally, Velderrain also argues it is unclear who shot Orozco and who shot Telles. Presumably, Velderrain highlights this to suggest the possibility he shot only at Orozco, who sustained a non-life threatening gunshot wound, and thus evidence of a manner of killing demonstrating a preconceived design to kill was not present. Nonsense. First, the jury heard sufficient evidence to conclude Velderrain fired at both victims. Velderrain does not deny he had one of the guns and shot it. The evidence established both Orozco and Telles were in the “kill zone.” Second, evidence of planning and motive concerning both attempted murder charges, even without evidence of a particular manner of killing, is sufficient to uphold the verdict according to Anderson. (Anderson, supra, 70 Cal.2d at p. 27.) Therefore, there was sufficient evidence to support Velderrain’s convictions for first degree attempted murder.
II. Jailhouse Telephone Call
A. Sixth Amendment Confrontation Clause
Velderrain contends admission of the recorded jailhouse telephone call violated his Sixth Amendment confrontation right because Ornelas was unavailable to testify. Again, we disagree.
In Crawford v. Washington (2004) 541 U.S. 36, 38 (Crawford), the United States Supreme Court addressed the issue of whether the admission of a spouse’s tape-recorded statement describing a stabbing without the defendant’s opportunity to cross-examine the spouse violated the defendant’s Sixth Amendment confrontation rights. The Court heldout-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. (Id. at p. 64.) The Court explained, however, that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law... as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.... We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’” (Id. at p. 68, fn. omitted.)
Although the Court declined to provide a comprehensive definition of “‘testimonial[, ]’” it did provide illustrations of statements that could be considered “‘testimonial’”: “‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[]’”; “‘extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[]’”; “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[]’”; and police interrogations. (Crawford, supra, 541 U.S. at pp. 51-52.) The Court stated that at the very least “‘testimonial’” applies to “testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68.) In discussing whether the historical sources supported the conclusion there were exceptions to the general rule of exclusion of hearsay evidence, the Court noted most of the hearsay exceptions covered statements that were not “testimonial” such as business records. (Id. at pp. 53-56.)
In Davis v. Washington (2006) 547 U.S. 813, 822, the United States Supreme Court provided further guidance on the issue. The Court stated: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Italics added.)
In People v. Cage (2007) 40 Cal.4th 965, 984 (Cage), the California Supreme Court stated: “First, as noted above, the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined “objectively, ” considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.”
Here, Ornelas’s statements were not made during a police interrogation or in response to “structured questioning.” (Cage, supra, 40 Cal.4th at p. 987.) Ornelas’s statements were not “made to law enforcement agents in the context of criminal investigations or inquiries.” (Cage, supra, 40 Cal.4th at p. 987.) Nor were they given to persons working on behalf of law enforcement agents. (People v. Vargas (2009) 178 Cal.App.4th 647, 661.) It is true the call was recorded and they knew it was being recorded. But the primary purpose of recording jailhouse telephone calls is penal in nature, i.e., to ensure the security of the penal institution. (See People v. Loyd (2002) 27 Cal.4th 997; People v. Zepeda (2001) 87 Cal.App.4th 1183.)
Ornelas’s statements were not in purpose and form analogous to testimony given by a witness at trial under circumstances imparting some degree of formality. Ornelas was not under oath and he was not subject to any of the consequences of speaking untruthfully. Ornelas was not trying to establish past facts for use in a criminal prosecution but to ensure any damaging facts would not be admitted through witness testimony. Ornelas was not acting as “[a witness] against the accused, ” but instead he was acting to silence witnesses against the accused. (Davis, supra, 547 U.S. at p. 823).
Recorded jail house telephone conversations are more closely akin to the “off-hand, overheard remark” statements identified in Crawford as not implicating the core concerns of the confrontation clause. (State v. Chio Hang Saechao (2004) 195 Ore.App. 581 [98 P.3d 1144].) Thus, Ornelas’s statements were non-testimonial and therefore their admission did not implicate Velderrain’s Sixth Amendment confrontation rights.
B. CALCRIM No. 358
Velderrain argues the trial court erroneously failed to instruct the jury sua sponte with CALCRIM No. 358 because the jailhouse telephone call between Orozco and Ornelas constituted evidence of Velderrain’s out-of-court statement. Not so.
The version of CALCRIM No. 358 in effect at the time of Velderrain’s trial provided: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]” (Italics added.)
When the evidence warrants, a trial court must instruct the jury sua sponte to view evidence of a defendant’s oral admissions with caution. (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).) The duty to give this cautionary instruction applies broadly to inculpatory oral statements made by the defendant before, during, or after the crime. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.)
A statement is a verbal assertion or nonverbal conduct intended as an assertion. (Evid. Code § 225.) An incriminating out-of-court statement, or admission, is “‘a statement made by defendant other than at his trial which does not by itself acknowledge his guilt of the crime(s) for which he is on trial, but... tends to prove his guilt when considered with the rest of the evidence.’” (People v. Marks (1988) 45 Cal.3d 1335, 1346 [citing CALJIC No. 2.71].)
In the jailhouse call, Ornelas repeats paraphrased words and actions made by an unnamed inmate when he says, among other things, “I’m just basically keeping my word to dude that I’ll call you and you know, let you know and acknowledge the fact that, you know. If possible, fuckin’ you know? He said, fuckin’ um, you know what he’s about dude and fuckin’ his people or him would have no problem fuckin’ you know? The people involved fuckin’ sliding him some dough, some serious dough, you know for them uh, conveniently missing court or what not.”
The jailhouse call evidences an attempt by the unnamed inmate to pay Orozco not to testify against him, suggesting the inmate knew Orozco’s testimony would be damaging to his case. It is reasonable, and indeed the prosecutor argued at trial, that Ornelas refers to Velderrain as the unnamed inmate because he mentioned Orozco’s involvement in the “mutual friend’s” trial when Orozco was only involved in Velderrain’s trial at the time.
Although it is reasonable to assume Ornelas was referring to Velderrain, the trial court did not admit into evidence Velderrain’s statement. The court admitted into evidence a conversation between Ornelas and Orozco where Ornelas, not Velderrain, stated Orozco will be compensated for not testifying against their mutual friend. The court admitted into evidence Ornelas’s statement not Velderrain’s, and the court had no sua sponte duty to instruct the jury with CALCRIM No. 358.
In any event, even if the trial court had a duty to instruct the jury sua sponte with CALCRIM No. 358, any error was harmless. The trial court’s failure to give the cautionary instruction is harmless when there is “no reasonable probability that the jury would find that the statements either were not made or were not reported accurately.” (People v. Beagle (1972) 6 Cal.3d 441, 456, overruled on other grounds in People v. Castro (1985) 38 Cal.3d 301; People v. Carpenter (1997) 15 Cal.4th 312, 392, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
First, it is not reasonably probable that had the trial court instructed the jury with CALCRIM No. 358 the result would have been different because as we explain above, there was sufficient evidence to convict Velderrain of the charged offenses. Three eyewitnesses identified him, and his fingerprints were found at the scene of the crime. Second, the trial court instructed the jury with CALCRIM No. 318, “Prior Statements as Evidence, ” explaining how to evaluate a witness’s out-of-court statement. Additionally, the trial court instructed the jury with CALCRIM No. 371, “Consciousness of Guilt: Suppression and Fabrication of Evidence, ” on how to evaluate evidence a defendant tried to discourage a witness from testifying or to obtain false testimony. Thus, the trial court had no sua sponte duty to instruct the jury with CALCRIM No. 358 because the jailhouse telephone call did not include a statement by Velderrain, and the court did not lower the prosecutor’s burden of proof.
III. Sua Sponte Instruction on Attempted Robbery
Velderrain argues the trial court erroneously failed to instruct the jury sua sponte on the lesser included offense of attempted robbery. We disagree.
The trial court has a sua sponte duty to instruct as to lesser included offenses when evidence is substantial enough to merit the jury’s consideration. (E.g., People v. Barton (1995) 12 Cal.4th 186, 194, fn. 4, 195.) The duty exists even when such instruction is inconsistent with defendant’s elected defense theory and defendant objects to the instruction. (Id. at pp. 195-196.) By contrast, “it has long been settled that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense. [Citations.]” (People v. Kelly (1990) 51 Cal.3d 931, 959 (Kelly).)
Based on the entire record, we conclude the evidence established the only crime the jury could convict Velderrain of was robbery. The record includes undisputed evidence someone other than the three victims moved Orozco’s safe from the master bedroom closet to the master bedroom floor. The trial court properly determined the safe’s movement from the closet to the floor was sufficient evidence to satisfy the asportation element of robbery. (Pham, supra, 15 Cal.App.4th at p. 65.) Consequently, the evidence clearly established that the two men who entered Orozco’s home with guns moved the safe, thereby effectuating a completed robbery, and an instruction on the lesser included offense of attempted robbery would have been erroneous. Therefore, the trial court properly concluded it had no sua sponte duty to instruct the jury on the lesser included offense of attempted robbery.
IV. Release of Juror Information
Velderrain claims the trial court erroneously denied his (1) motion for the release of juror information to investigate alleged jury misconduct, and (2) motion for new trial based on jury misconduct. Neither of his contentions have merit.
A. Release of Juror Information
Velderrain asserts the trial court erroneously denied his motion to release juror information and request to schedule an evidentiary hearing to investigate possible juror misconduct. Not so.
Code of Civil Procedure sections 206 and 237 require a defendant to make a prima facie good cause showing of misconduct before he or she may obtain sealed juror information. (People v. Granish (1996) 41 Cal.App.4th 1117, 1128.) While a juror’s assertions of expertise are undoubtedly misconduct, “jurors are expected to bring their individual backgrounds and experiences to bear on the deliberative process. ‘That they do so is one of the strengths of the jury system. It is also one of its weaknesses.... Such a weakness, however, must be tolerated.’ [Citations.] Otherwise, few verdicts would stand.” (People v. Pride (1992) 3 Cal.4th 195, 268.) We review the trial court’s decision for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
We conclude the trial court properly denied Velderrain’s motion for the release of juror information. The jury foreperson’s comment concerning Amber Alerts was nothing more than a comment on her personal experience that when there was an alert, she could not remember what her children were wearing. It was a comment on the human mind’s inability to recall mundane facts based on her experience. It was not a statement concerning matters outside the record.
The jury foreperson’s comment about “studies” although a reference to extrinsic material, did not rise to the level of good cause necessary for an evidentiary hearing. When counsel asked her about the identification issue after trial, she mentioned “studies” generally to support her beliefs about failings of human psychology, but she did not support her assertion with any particular expert studies. Her statement was not an assertion of expertise but instead a reflection of her general knowledge and personal experience about memory recall.
Moreover, there is no evidence the jury foreperson revealed her beliefs to the jury during deliberations or that the jury considered extrinsic evidence during their deliberations. Her comment was prompted by defense counsel’s questioning after the trial. Velderrain asserts that by shaking their heads in agreement when the foreperson spoke, other jurors blindly afforded authority to her statements. There is no reason to conclude jurors were not thinking for themselves when nodding their heads in agreement. Indeed, their agreement further supports the conclusion the jury foreperson’s statements were mere reflections of general knowledge.
Additionally, Code of Civil Procedure section 237, subdivision (b), states the trial court “shall not set the matter [of releasing juror information] for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure.” Here, there was evidence Velderrain attempted to dissuade a witness from testifying against him. Therefore, there was a compelling interest against disclosure—to protect the jurors. Therefore, the trial court properly denied Velderrain’s motion for the release of juror information.
B. New Trial Motion
Velderrain also argues the trial court erroneously denied his new trial motions based on alleged juror misconduct without conducting an evidentiary hearing. Again, we disagree.
“[W]hen a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations. We stress, however, that the defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes an evidentiary hearing is necessary to resolve material, disputed issues of fact.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) “‘We review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard.’ [Citations.] ‘“A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.”’ [Citations.]” (People v. Thompson (2010) 49 Cal.4th 79, 140.) Such an abuse is not present here.
As we explain above, Velderrain failed to make a prima facie good cause showing of misconduct. The jury foreperson’s comments after trial to counsel were simple reflections of her personal experience and beliefs, rather than references to extraneous evidence or assertions of expertise. (People v. Duran (1996) 50 Cal.App.4th 103, 113 [defendant must produce evidence establishing a “strong possibility that prejudicial misconduct has occurred”].) Velderrain failed to carry his burden, and the trial court properly denied his new trial motions without a hearing.
V. Brady v. Maryland
Velderrain argues the prosecutor’s failure to disclose her “deal” with Orozco during trial so he could impeach him during cross-examination violated his due process rights. Based on our review of the entire record, we conclude the prosecutor did not have a “deal” with Orozco. In any event, the evidence was not material to the outcome of the case, and even had it been admitted, it is not reasonably probable the result of the proceedings would have been different.
In Brady v. Maryland (1963) 373 U.S. 83, 87, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Such a violation requires reversal. (Ibid.) This rule applies equally to evidence that “either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses.” (In re Sassounian (1995) 9 Cal.4th 535, 544.) “‘Evidence is material under the Brady standard ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ [Citation.]” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1049.) This requires more than merely showing the evidence bears on a certain issue. (Ibid.)
Here, the record includes no evidence the prosecutor offered Orozco a “deal.” Instead, the evidence established the prosecutor spoke with Orozco about the probation department granting an early release from probation so he could leave the country. This conversation would have had little if any impeachment value as there is no evidence the prosecutor represented her office had the authority to facilitate his request, other than to not oppose it. The prosecutor did not treat Orozco more favorably than other witnesses as this same option is available to all probationers who do well during their probationary term.
Any possible benefit Orozco might have received from the prosecutor was through the note she left saying she saw no reason for her office to oppose Orozco’s petition for early probation termination. The prosecutor never guaranteed her office would support Orozco’s petition and her note was nothing more than a recommendation, which may or may not have even benefited Orozco. It is not reasonably probable that evidence of this possible benefit would have affected the outcome of Velderrain’s trial. While defense counsel could have cross-examined Orozco on the possibility he benefited from the prosecutor’s note, we cannot conclude any impeachment value would have undermined the jury’s guilty verdict. In any event, as we explain above, there was sufficient evidence of Velderrain’s guilt on all counts such that the jury would have more likely interpreted the evidence as establishing Orozco’s very real fear for his safety as a result of the jailhouse call. Thus, the trial court properly denied Velderrain’s new trial motion.
VI. Firearm Enhancements
Velderrain contends and the Attorney General concedes the trial court erroneously doubled the firearm enhancements attached to counts 1, 2, and 3 under the “Three Strikes” law. (People v. Hardy (1999) 73 Cal.App.4th 1429, 1433 [“In sentencing a defendant who has one prior strike, the court may not double any enhancements it imposes”]; People v. Dominguez (1995) 38 Cal.App.4th 410, 424 [“the terms for the offenses themselves must be doubled for a ‘second strike’ defendant, but no term for an enhancement is doubled”].) We order the enhancements be reduced from 50 years to life to 25 years to life on each of counts 1, 2, and 3.
VII. Abstract of Judgment
Velderrain asserts the abstract of judgment incorrectly states the trial court imposed a consecutive sentence on count 4. The Attorney General concedes the error. The trial court orally stayed the sentence on count 4 (burglary), yet the abstract of judgment shows the sentence of count 4 as imposed. We order the abstract of judgment be corrected to reflect the trial court’s oral pronouncement of judgment. (E.g., People v. Boyde (1988) 46 Cal.3d 212, 256.)
DISPOSITION
The sentence is modified as follows: the enhancement terms on counts 1, 2, and 3 are reduced from 50 years to life to 25 years to life; and the sentence on count 4 is stayed. The judgment is affirmed as modified. We order the clerk of the superior court to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.