P. v. Calloway
Filed 12/9/13
P. v. Calloway CA2/4
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND CALLOWAY, et al.,
Defendants and Appellants.
B239805
(Los Angeles
County
Super. Ct.
No. BA372306)
APPEALS
from judgments of the Superior Court
of
County, Barbara R. Johnson and Craig J. Mitchell, Judges. Modify and affirm.
Murray A.
Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant
Raymond Calloway.
Sally Patrone
Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant
Jason Bridges.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi,
Deputy Attorneys General, for Plaintiff and Respondent.
These appeals arise from the
store. Appellant Raymond Calloway was
convicted of four counts in the first trial, but the jury was unable to reach a
verdict on the counts against his co-defendant, appellant Jason Bridges. Each was convicted as charged at the second
trial.
Calloway
and Bridges challenge the sufficiency of the evidence supporting their convictions
of robbing two employees who remained secreted during the entire episode and
who were unknown to them. Bridges
challenges the evidence identifying him as one of the robbers and the jury’s
finding that he assaulted three employees who were in a back room. Bridges argues the trial court erred by
informing the second jury that Calloway had been convicted of several counts in
the first trial.
Calloway
argues the trial court abused its discretion in declining to strike his strike
prior conviction and that it erred in imposing sentence on count 1 from the
first trial in violation of Penal Code section 654.
his sentence on count 3 should have been stayed under section 654. Each appellant joins in the issues raised by
the other.
Respondent
asks that we modify the abstract of judgment to reflect the correct amounts for
the mandatory criminal conviction assessment under Government Code section
70373 and the court security fee under section 1465.8.
We find
sufficient evidence to support the robbery convictions as to the hidden
employees. There was substantial
evidence identifying Bridges as the lookout during the robbery and supporting
the convictions for assault of the three victims moved to a wine room at the
rear of the store. Since the jury in the
second trial was asked to determine Calloway’s guilt on special gun use
allegations arising from the counts on which he was convicted in the first
trial, we find no abuse of the trial court’s discretion in informing the single
jury at the second trial of those convictions.
The trial
court did not abuse its discretion in denying Calloway’s motion to strike a
1987 attempted murder strike allegation.
Section 654 does not apply to his sentence under count 1 of the first
trial because Calloway acted with a separate objective in committing that
crime. We agree with Bridges and respondent
that section 654 does apply to the sentence on count 3 in the second trial and
direct the modification of the abstract of judgment. We conclude that the People did not forfeit
the claim that the abstract of judgment must be corrected to reflect the
correct criminal conviction assessment under Government Code section 70373 and
the court security fee under section 1465.8, and order that the abstract of
judgment be modified accordingly.
FACTUAL AND PROCEDURAL SUMMARY
At 10:00 p.m. on May 30, 2010, a number of employees were still working at
a Trader Joe’s store in Eagle Rock. By
that time, the store was closed to the public.
Three men entered through the back of the store. The man later identified as Calloway carried
a semiautomatic weapon and a bag. He was
accompanied by Bridges, who was unarmed.
A third man, not identified, also was armed with a semiautomatic gun.
Calloway
pointed his gun at employee Angelica Arteaga and told her to be quiet. Employee Andrew Bates walked up. Calloway pointed the gun at Bates and
signaled that he and Arteaga should stand together. When Calloway pointed the gun at Bates’s
forehead, Bates said “whoa†and Calloway told him to “‘[s]hut the fuck up.’†Bates and Arteaga could see employee Douglas
Hilton in a nearby room. Calloway
directed Arteaga to call him over.
Arteaga did so and Hilton joined the group. Calloway directed the three employees to walk
outside the store. He followed with his
gun pointed at them. He signaled them to
walk to a room called the wine bank, where the third robber waited.
Once they
were inside the wine bank, Calloway left and the third robber ordered the three
employees to remove the contents of their pockets. Arteaga did not have anything in her pockets,
the others did and removed the items. The
third robber ordered the employees to lay on the floor face down. They complied. The third robber stood at the doorway, and
threw their possessions on the floor, where they later were recovered.
In the
meantime, employee Adam Kuehlthau was at the captain’s desk, an office area in
the front of the store, with manager Ryan Gilger. There was a three-part safe in the captain’s
desk area. Two doors were unlocked, but
the third was locked and could only be opened by an armored truck service that
came in the morning. Gilger was counting
money and preparing to put it in one of the safes. Calloway and Bridges walked up to the captain’s
desk where Bridges took up a position as lookout, nervously looking around the
store.
Gilger
asked if he could help the two men.
Calloway pulled out his weapon, pointed it at Gilger’s chest, and asked
for the money. Gilger, who had put his
hands up, turned and opened the unlocked door to the middle safe. Calloway held the gun with his right hand
while loading the money into a bag.
Bridges was yelling at Calloway to hurry up, or saying that the employees
were looking at him. Employee Ernie
Morales, who was working in the produce area near the front of the store, saw
Calloway and Bridges at the captain’s desk.
Since Gilger and Kuehlthau had their hands up, Morales believed that a
robbery was occurring. Morales walked
toward them. Bridges looked at him,
yelled something, then ran out the back exit.
Calloway
was occupied removing money from the safe.
Morales picked up a bottle of wine, walked quickly to the captain’s
desk, and hit Calloway on the back of the head with the bottle. Calloway spun around and shot Morales. They wrestled over the gun. More shots were fired. Morales lost his grip on the gun and begged
Calloway not to shoot him. He shoved
Calloway away and ran down the aisle in an attempt to get away. Morales feared
for his life.
After
Bridges left the captain’s desk area, he appeared in the door of the wine bank and
excitedly told the third robber, “‘Let’s go.’†Both men ran out of the wine
bank. The three employees at that
location waited a brief time, then Hilton called 911. Arteaga was in fear for her life while in the
wine bank.
Two Trader
Joe’s employees on duty at the time of the robbery were able to hide from the
robbers. Jayson Gonzalez saw two African
American men walk into the store after it was closed. They walked toward the front, carrying bags. He saw Gilger and Kuehlthau hold their hands
up in the air and believed a robbery was occurring. Gonzalez hid behind an aisle, but could see
what was happening at the captain’s desk.
He saw Morales pass by, then come back into view with a bottle of wine
in his hand, walking toward the entrance to the captain’s desk. Gonzalez moved forward to a location from
which he could see the captain’s desk because he was concerned that Morales
might do something. He saw Morales lift
the wine bottle over Calloway’s head and smash it down. Gonzalez heard a crash when the bottle
struck. He immediately heard four or
five gunshots in repeated succession. Gonzalez
ducked down out of sight. Then he moved forward
again and heard sounds of wrestling at the captain’s desk. He saw the robber and Morales rise up while
the robber was holding the gun in the air, as if fighting over it. Gonzalez saw Morales hold his hands up, and
say, “‘Don’t Shoot. Don’t Shoot. I give up.’â€. After the robbers left, Morales went up to
Gonzalez and asked him to call an ambulance because he had been shot in the
leg.
Employee
Nelson Zaldana first noticed the robbers when they were at the captain’s desk. He too believed a robbery was occurring
because he saw Gilger and Kuehlthau with their hands up. Zaldana was near the entrance to the store
near the captain’s desk. He walked to
the back of the store. He could not see
what was happening at the captain’s desk from that vantage point. He heard about four gunshots in fast
succession, causing him to fear for his life. He did not see the gunshots. He and Gonzalez laid Morales down after the
shooting and put pressure on the wound where it was bleeding.
Three .40
caliber bullet casings were collected from the captain’s desk area and one live
.40 caliber bullet from the floor of the back room. A bullet had gone into a photocopier at the
captain’s desk. The casings and bullet
were fired from a semiautomatic gun. There
also was a bullet hole in the ceiling through a light fixture near the
captain’s desk.
The third
robber was never identified or apprehended.
Calloway and Bridges were identified as involved in the robbery and arrested. They were charged with eight counts of second
degree robbery.
title="">[2] In addition, Calloway was charged with
assault with a semi-automatic weapon on victim Morales. The information alleged that Calloway and
Bridges each personally used a firearm in the commission of the offenses other
than assault, causing great bodily injury.
It also alleged that Calloway had suffered two prior strike convictions
within the meaning of sections 667, subdivisions (b)-(i) and 1170.12,
subdivisions (a)-(d). It was alleged
that Bridges had a prior strike conviction for first degree robbery in 2004.
At the
first trial, the jury was unable to reach a verdict on any count against
Bridges. Calloway was found guilty of
the robberies of Morales, Gilger, and Kuehlthau and the assault on Morales
(counts 1, 2, 3, and 5). The jury found
true the allegations that Calloway had personally used a firearm as to those counts,
but was unable to reach a verdict on the remaining special allegations or on
the remaining charges against him. A
mistrial was declared as to the counts for which no verdict was rendered. The trial court struck one of Calloway’s two
prior strike felony convictions in the interests of justice.
At the
second trial, the charging pleading was the third amended information. Bridges was charged with eight counts of
second degree robbery (victims Morales, Gilger, Gonzalez, Kuehlthau, Zaldana,
Bates, Hilton, and Arteaga). Calloway
was charged with special allegations as to the convictions for robbing Morales,
Gilger, and Kuehlthau (counts 1, 3, and 5), as well as the second degree
robbery of victims Gonzalez, Zaldana, Bates, Hilton, and Arteaga. Calloway and Bridges were charged with
assault with a semi-automatic weapon on Bates, Hilton, and Arteaga. In addition, Bridges was charged with assault
on Bates, Hilton, Arteaga, Gilger, Morales and Kuehlthau. Both defendants were found guilty as charged
in the second trial. The jury found true
allegations that Calloway had personally used a firearm and firearm allegations
against Bridges.
title="">[3]
Calloway
was sentenced to an aggregate term of 48 years in prison. Bridges was sentenced to an aggregate term of
31 years in prison. We reserve the
details of these sentences for our discussion of the sentencing issues raised
by appellants. Appellants filed timely
appeals.
DISCUSSION
I
Bridges
challenges the sufficiency of evidence identifying him as the lookout during
the robbery, the person referred to during trial as suspect two. He cites the five alibi witnesses who
testified that he was home attending a Memorial Day weekend party at the time
the robbery occurred.
name="_ftnref4" title="">[4] He also
cites Calloway’s testimony that the accomplice who acted at lookout at the
captain’s desk was an individual known to him as “Red.†Bridges notes that the jury in the first trial
was unable to convict him on any charges, splitting eight not guilty to four
guilty.
Bridges
also points to inconsistencies in the descriptions of suspect two provided by
the witnesses. Morales and Kuehlthau
identified Bridges as suspect two from six-pack photographs and at trial.
“‘In addressing
a challenge to the sufficiency of the evidence supporting a conviction, the
reviewing court must examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence
that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]’
(People v. Kraft (2000) 23
Cal.4th 978, 1053; see also, e.g., People
v. Prieto (2003) 30 Cal.4th 226, 245; People
v. Farnam (2002) 28 Cal.4th 107, 142–143.)â€
(People v. Mai (2013) 57
Cal.4th 986, 1038.)
A reviewing
court may not set aside a jury’s finding of guilt on the question of identity,
unless the evidence of identity is “‘so weak as to constitute practically no
evidence at all.’ [Citations.]†(People
v. Mohamed (2011) 201 Cal.App.4th 515, 521.)
Where the circumstances of the eyewitness identification and
its weight are explored at trial, and credited by the jury, the jury’s
determination is binding on the reviewing court. (Ibid,
citing In re Gustavo M. (1989) 214
Cal.App.3d 1485, 1497.) The fact that the
robber’s face was partially obscured does not preclude a finding of sufficient
evidence to support the verdict. (
and in the descriptions given of the robber do not require the jury to reject
their identifications: “‘The strength or
weakness of the identification, the incompatibility of and discrepancies in the
testimony, if there were any, the uncertainty of recollection, and the
qualification of identity and lack of positiveness in testimony are matters
which go to the weight of the evidence and the credibility of the witnesses,
and are for the observation and consideration, and directed solely to the
attention of the jury in the first instance . . . .’ [Citation.]â€
(Ibid.)
Kuehlthau
identified Calloway and Bridges as the men who came into the captain’s desk
area when he was there with Gilger. He
described Bridges to the police as the lookout, and as tall, wearing a hooded
black sweatshirt. After his recollection
was refreshed with a police report, Kuehlthau testified that he told the police
that the robber he identified as Bridges was a tall black male, with broad
shoulders and wearing a black hooded sweatshirt. Kuehlthau thought Bridges was 6’ 4†or 6’ 3â€
(Kuehlthau was 6’ 3â€). On redirect, he
reaffirmed his identification of Calloway (as the man with a gun) and Bridges
(lookout). Bridges was 6’ 4†tall.
Kuehlthau
did not identify any person in the first six pack he was shown because he did
not recognize anyone as involved in the robbery. From another six pack, he identified the
third photograph, which was of Bridges, on exhibit 6-B as the lookout. He wrote “looks like the lookout who ran
off. Similar features, his nose and
mouth. He was the other guy who ran in
with the guy with the gun, into Trader Joe’s who robbed us on May 30th, 2010.†Kuehlthau had a good look at Bridges at the
time of the robbery. He was certain
about the identification. The photo
looked “very, very close to whom I saw.†He said suspect two (Bridges) was darker
skinned than Calloway. Kuehlthau told
police officers that he only saw parts of Bridges’ face because Bridges had a
sweatshirt hood pulled down.
Morales
testified that he had a good look at Bridges’ face since the store was well
lit. He saw suspect two’s face for one
or two seconds, unobscured by a hoodie sweatshirt. He described suspect two as lighter skinned,
with a narrower face, skinnier, and a little taller than Morales, who is 5’
8â€. He believed that he had agreed with
a police officer that suspect two was about 5’ 10†tall. When he identified Bridges from a six-pack
photo array, Morales said the person looked like suspect two’s mouth area and
lips. He wrote that the hairline, skin
tone, and facial hair looked similar.
Although Gilger
did not identify Bridges at trial as suspect two, he testified that he told
police officers that suspect two was 6’ 3†tall, a couple inches taller than
Gilger’s 6’ 1â€. This was consistent
with Kuehlthau’s description of the height of suspect two.
“Inconsistencies
in [witnesses’] initial descriptions of the perpetrator . . . are
matters affecting the witnesses’ credibility, which is for the jury to
resolve.†(People v. Elliott (2012) 53 Cal.4th 535, 586.) In finding Bridges guilty, the jury at the
second trial plainly credited the identification testimony of Morales and
Kuehlthau and disbelieved the alibi witnesses. Sufficient evidence of identification supports
the verdicts as to Bridges.
II
Bridges
argues that his convictions of assaulting the victims in the back room (Bates,
count 12; Hilton, count 13, and Arteaga, count 14) must be overturned because
they were too far from the bullets fired at the captain’s desk. Alternatively, he argues that the assault
convictions are not supported by evidence that Calloway pointed a gun at these
victims when they were moved to the wine room. Calloway joins in all contentions raised by
Bridges. Respondent argues that the
evidence that a loaded weapon was pointed at the three victims who moved to the
wine room is sufficient to support these assault convictions.
When Bates
encountered Calloway in the back area of the store, Calloway pulled out a gun
and stuck it in his face. Bates jumped
back and loudly said, “‘Whoa.’â€.
Calloway said, “‘Shut the fuck up.’†He kept the gun in Bates’ face, and repeated
the admonition to shut up. Bates said,
“‘You can have whatever you want.’†The
gun was pointed at Bates’ forehead, a couple of inches away.
Arteaga
testified that Calloway entered the store, pointed a gun at her, and signaled
her to be quiet. Calloway pointed the
gun at Arteaga, Bates, and Hilton as he directed them to walk outside the back
area of the store to the wine room. He
was within two to three feet of them, with the loaded gun pointed at them. Calloway testified that he knew that the gun
he used in the robbery was loaded.
“‘An
assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.’
(§ 240.) Assault requires the
willful commission of an act that by its nature will probably and directly
result in injury to another (i.e., a battery), and with knowledge of the facts
sufficient to establish that the act by its nature will probably and directly
result in such injury. (
779, 782 (Williams).)†(People
v. Miceli (2002) 104 Cal.App.4th 256, 268–269.) In Miceli,
the court found sufficient evidence that the defendant pointed a loaded semi-automatic
weapon based on a statement he made to a police officer, despite
statement was sufficient to prove the gun was loaded. The court concluded: “To point a loaded gun in a threatening
manner at another . . . constitutes an assault, because one who
does so has the present ability to inflict a violent injury on the other and
the act by its nature will probably and directly result in such injury. [Citations.]â€
(Id. at p. 269.)
There was
substantial evidence that Bridges aided and abetted Calloway in the commission
of his offenses, including the assaults on Bates, Hilton, and Arteaga. Calloway pointed a loaded weapon at these
three in a threatening manner. Bridges
argues in his reply brief that the convictions should be reversed because the
third unidentified robber told the victims in the wine room, “‘Don’t
worry. Nothing bad is going to happen to
you.’†This assurance by the third
robber does not negate Calloway’s use of his weapon in a threatening manner
against these victims. The convictions for
assaulting Bates, Hilton, and Arteaga are supported by substantial evidence.
III
Both
Calloway and Bridges challenge the evidence supporting their convictions at the
second trial of robbing Gonzalez and Zaldana, the employees who remained hidden
during the robbery.
“‘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,
749 [(Scott)].)†(People
v. McKinnon (2011) 52 Cal.4th 610, 686-687 [regardless of their specific
responsibilities, on-duty employees have constructive possession of their
employer’s property for purposes of a robbery.].) “Robbery of a particular person has not
occurred unless property was taken from the person’s immediate presence and the
defendant used force or fear to take the property or to prevent the person from
resisting.†(Scott, at p. 749.)
California
recognizes that employees in constructive possession of store property may each
be a separate victim of a robbery of the business. In Scott,
during the robbery of a McDonald’s restaurant, two employees hid from the
robbers. Each saw the robbers with
weapons and immediately hid for the duration of the crime. At trial and on appeal, a defendant argued
that the hidden employees were not victims of the robbery because they lacked
constructive possession of the money which was stolen. Resolving a split of authority in the Courts
of Appeal, the Supreme Court held that “‘employees working at a business
premises were in constructive possession of the employer’s property during a
robbery, based upon their status as employees and without examining whether
their particular duties involved access to or control over the property
stolen.’†(Scott, supra, 45 Cal.4th
at p. 752, quoting People v. Jones (2000)
82 Cal.App.4th 485, 490.) It concluded
that “‘if force or fear is applied to
two victims in joint possession of property, two convictions of robbery are
proper.’†(Id. at p. 757.) The
convictions for robbing the hidden victims were affirmed. (Id.
at p. 758.)
Calloway
argues there is insufficient evidence that he robbed Gonzalez and Zaldana because
they were in different parts of the store when the robbery occurred, did not interact
with him or the other robbers, and the robbers were unaware of their presence. “‘The generally accepted definition of
immediate presence . . . is that “‘[a] thing is in the [immediate]
presence of a person, in respect to robbery, which is so within his reach,
inspection, observation or control, that he could, if not overcome by violence
possession of it.Չۉ۪ (
626–627.)†(People v. Abilez (2007) 41 Cal.4th 472, 507, italics added.) As we have discussed, all employees in the
store had constructive possession of the stolen money under the principles
announced in Scott,
from retaining possession of the money in the store safe. That is sufficient to satisfy the element of
immediate presence to support the convictions of robbing them. (See People
v. Douglas (1995) 36 Cal.App.4th 1681, 1690-1691 [sufficient evidence of
attempted robbery of patron hiding 30 feet from robbery of bartender since
patron saw robber had gun, and was prevented by fear from reclaiming money he
had left on bar.]
The cases
Calloway cites do not support his argument.
First, he cites the discussion in Scott,
supra, 45 Cal.4th at pages 750–751 of
the general principles of constructive possession for purposes of robbery. As we have discussed, in Scott, the Supreme Court upheld convictions for robbing two victims
who saw the armed intruders, but hid during the robbery and did not interact
with the robbers. (Id., supra, 45 Cal.4th at
p. 758.) Calloway does not explain how
this discussion supports his contention that the robbers had to have knowledge
of the victims’ presence in order to have robbed them.
Calloway
also cites People v. Bonner (2000) 80
Cal.App.4th 759, in which the defendant argued there was insufficient evidence
to support his conviction of two counts of attempted robbery because he was not
in close proximity to either intended victim and did not demand money from
either of them. The Court of Appeal
rejected the argument and affirmed the convictions. (Id.
at pp. 765-766.) It concluded the
convictions were supported by evidence of the defendant’s intent to rob the two
victims and of acts beyond mere preparation, including going to the scene with
a weapon, placing a mask over his face, and waiting in hiding. He abandoned the plan and fled only after he
was discovered by other hotel employees before he could confront the intended
victims. (Id. at p. 764, fn. 3.) We do
not see how this case supports Calloway’s argument.
Cal.App.4th 479, on which Calloway relies, also is distinguishable. The issue in that case was whether the
defendant took a saxophone from the person or immediate presence of a security
guard who was not employed by the business which was robbed, but was instead
employed by a nearby business. The case
is inapposite since here we are concerned with employee victims who come within
the principles of constructive possession announced in Scott, supra, 45 Cal.4th
at page 743.
Bridges’
challenge to the robbery counts involving Zaldana and Gonzalez is similar. He argues that since the robbers did not see
these two victims, they never used force against them and thus he cannot be
convicted of robbing them. But like the
hidden victims in Scott,
both testified that they saw Gilger and Kuehlthau standing at the captain’s
desk with their hands in the air in the presence of two strangers. They each believed a robbery was occuring and
hid. Zaldana testified that he chose the
first spot he hid “mainly for safety†because he feared a robbery was
occurring. Once he heard the gunfire, he
feared for his life. When Gonzalez saw
Gilger and Kuehlthau with their hands in the air, he hid because he did not
know what was going to happen. He hid so
the robbers would not see him. He witnessed
Morales and Calloway fighting over the gun from a distance of about 20 feet. When the gunshots were fired, he ducked
farther down out of sight of the captain’s desk.
There is
sufficient evidence that Calloway and Bridges prevented Gonzalez and Zaldana
from resisting the robbery by force or fear.
(People v. Abilez,
Zaldana are supported by sufficient evidence.
IV
Bridges
argues the trial court erred by informing the jury prior to voir dire that
Calloway had been convicted of four counts in the first trial. He contends the error was prejudicial because
“the jury would necessarily think the conviction of a codefendant necessarily
implied appellant Bridges was also guilty.†Respondent contends that the issue was forfeited
because Bridges raised no objection below. Bridges argues the issue affected his
substantial rights and therefore may be raised for the first time on appeal. We need not resolve this dispute because we
find no error.
After the
first trial ended in a mistrial as to Calloway on some of the special gun use
allegations on the robbery counts for which he had been convicted, the
prosecution chose to recharge those special allegations in the third amended
information. As a result, at the second
trial, as to Calloway, the jury was required to consider only special
allegations as to count 1 (robbery of Morales), count 3 (robbery of Gilger),
and count 5 (robbery of Kuehlthau). The
prosecution proceeded against Bridges at the second trial on the theories that he
was a principal or that he aided and abetted Calloway and the unidentified
third robber.
At the
beginning of jury selection in the second trial, the court listed the charges
against the two defendants, including the special allegations. The court then briefly summarized the case: “Ladies and Gentlemen, this involves several
felony counts as I have listed them. All
the crimes are alleged to have occurred during a single incident, a take-over
robbery of a Trader Joe’s in the city of Eagle Rock. [¶] Mr.
Calloway has been found guilty of assault with a firearm and three counts of
robbery with personal use of a firearm arising out of this case in a prior
proceeding. It will be up to you to
resolve, if you can, the remaining charges and allegations against Mr. Calloway
as well as the charges and allegations against Mr. Bridges.†Neither defendant objected to this summary, or
to the revelation that Calloway was convicted of some charges in the first
trial.
Throughout
the second trial, the court and counsel addressed the impact of Calloway’s
convictions in the first trial. The
first question put to Calloway on direct examination by his counsel was whether
he previously had been convicted of the robberies of Gilger, Kuehlthau, and
Morales. Calloway answered that he had,
in addition to a charge of assault with a semi-automatic firearm on Morales. Counsel for Bridges did not request an
instruction that would have limited the use of Calloway’s convictions at the
first trial. In the colloquy over jury
instructions, the court and counsel discussed how the verdict forms should be
worded since the jury was being asked to decide only the truth of the special
allegations as to three counts (1, 3, and 5) on which Calloway was convicted in
the first trial. The court noted that
the jury was informed of the convictions in the first trial before voir dire
began and that the verdict forms would clearly state that the jury was to
determine only the truth of the special allegations as to those counts. In addition, counsel for Calloway said he
intended to make this clear in his argument.
The court suggested the parties agree on the language for the verdict
forms.
In
1155 [Sorrels], the Court of Appeal
acknowledged: “The trial court’s reading
of a brief overview of the facts before conducting voir dire is commonplace in
modern-day trial courts. In fact, judges
are encouraged to give such statements to the juries for a number of reasons. First, it serves as a means of giving the
jurors an introduction to the case. . . .†(Id.
at p. 1164.) The Sorrels court noted “[i]ndeed, the California Standards for
Judicial Administration, Standard 4.30, subdivision (b)(8), direct a criminal
trial judge during voir dire to inform the jury of the charges against a
defendant, and the section of the Penal Code alleged to have been
violated. Most importantly, the standard
directs the trial judge to ‘describe the offense[s].’ Further, the trial judge is to inform the
jury that ‘the defendant has pleaded not guilty, and the jury will have to
decide whether the defendant’s guilt has been proved beyond a reasonable
doubt.’ (Ibid.)†(
In that case, the trial court gave a lengthy factual summary of the
crimes. On appeal, the court found no
error. It cited People v. Rodriguez (1986) 42 Cal.3d 730, 766: “The trial court has sound discretion to
summarize the evidence with no limitations on its content or timing so long as
it is ‘accurate, temperate, nonargumentative, and scrupulously fair.’ [Citation.]â€
(Sorrels, supra, 208 Cal.App.4th at p. 1165.)
Bridges
relies on the general principle that evidence that a codefendant has been
convicted of the same crime is extremely prejudicial, citing
1233, 1322 [Cummings],
188–190, and People v. Andrews (1983)
149 Cal.App.3d 358, 364–366). The cases
are inapposite. In Cummings, evidence of defendant’s guilty pleas to a series of
robberies was admitted at the trial on separate charges, including murder, against
Cummings and his codefendant, Kenneth Gay.
The trial court reasoned that the evidence was admissible because it
corroborated a witnesses’ testimony regarding the remaining charges. The Supreme Court rejected that theory,
finding that the attenuated probative value of the prior pleas was outweighed
by the prejudicial impact. (4 Cal.4th at
p. 1322.) The Cummings court also rejected the alternative theory that the plea evidence
was admissible because the other witness’ credibility was at issue, finding it
more prejudicial than probative. (
In Cummings, separate juries
were convened to determine the guilt of the two codefendants. (Id.
at p. 1255.) The Supreme Court’s ruling
was that the fact Cummings was found guilty based on his plea was not
admissible as to Gay. But here, a single
jury was convened, which had to determine Calloway’s guilt on the special
allegations on the charges for which he was previously convicted, additional
charges against Calloway, and all charges against Bridges. There is no indication in the record that
Bridges sought to sever his trial from Calloway’s, or that he sought a separate
jury.
distinguishable. In that case, Leonard
and another person, Johnson, were charged with robbing two victims in a single
incident. Johnson pled guilty. At trial, the only charges were against
Leonard, but the jury was told of Johnson’s guilty plea. The Court of Appeal held that the questionable
probative value of the plea was far outweighed by the prejudicial impact. (Id.
at pp. 188–189.) Unlike the jury in our
case, the jury in Leonard, was not
asked to determine the truth of any special allegations against Johnson. The third case cited by Bridges,
newspaper article reporting a codefendant’s guilty plea to charges arising from
one of the incidents in which Andrews was charged. That jury did not have before it any issue
regarding the guilt of the codefendant, unlike the jury here.
We find no
abuse of the trial court’s discretion in advising the jury of Calloway’s
convictions in the first trial. That
information was necessary in order for the jury to determine the special
allegations against Calloway based on those convictions. In addition, the information was relevant in
the second trial because Bridges’ guilt of the robberies of Gilger, Kuehlthau,
and Morales was prosecuted on an aiding and abetting theory.
V
The remaining
contentions on appeal concern claims of sentencing error. Calloway argues the trial court erred in
denying his motion to dismiss a prior 1987 strike conviction allegation, based
on an attempted murder. He also contends
the trial court should have stayed the sentence on count 1 from the first
trial, the robbery of Morales, under section 654. Bridges argues, and respondent concedes, that
Bridges’ sentence for robbing Gilger should have been stayed under section 654.
A. Three Strikes
The trial
court has the discretion under section 1385, subdivision (a) to strike prior
conviction allegations brought under the Three Strikes law. (People
v. Leavel (2012) 203 Cal.App.4th 823, 836 (Leavel), citing People v.
Superior Court (Romero) (1996) 13 Cal.4th
497, 529-530 (Romero).) We review the trial court’s ruling on such a
motion for abuse of discretion. (
sentence to clearly show the sentence was irrational or arbitrary. [Citation.]â€
(Ibid.) An abuse of discretion is demonstrated only
in limited circumstances, for example, when the trial court was unaware of its
discretion to dismiss or where it considered impermissible factors in declining
to dismiss. (Ibid; People v. Carmony (2004)
33 Cal.4th 367, 378.) We will not reverse a sentence “merely
because reasonable people might disagree.
‘“‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’â€â€™â€ (Ibid,
quoting People v. Superior Court (
978.)
The factors
the trial court may consider in ruling on a motion to strike a prior strike
conviction allegation are well established:
“‘[T]he court in question must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.’ (People
v. Williams (1998) 17 Cal.4th 148, 161.)â€
(Leavel, supra, 203 Cal.App.4th at pp. 836-837.)
Calloway
had a sustained juvenile petition for robbery in 1981; a conviction for
attempted murder in 1987 for which he was sentenced to seven years in state
prison; a 1992 federal conviction for conspiracy to distribute cocaine for
which he was sentenced to 25 years in federal prison, and in 2001 he had a
conviction for felony sale of narcotics and was sentenced to three years in
state prison.
title="">[6] The 1987
attempted murder strike allegation was found true by the trial court after the
verdicts were returned in the first trial.
Before the
start of the second trial, Calloway’s counsel filed a motion
murder strike. He argued that Calloway
was only 20 years old in 1987, and that his only convictions in the interim
were narcotics related. He contended
that Calloway chose not to kill or severely injure the victims in the present
case, although he had the opportunity to do so.
Counsel also referenced a letter written on behalf of Calloway by a jail
chaplain, who said he had only written one other such letter in 23 years in
that position. Counsel cited Calloway’s
cooperation in his defense and recognition that he deserved to be punished for
his actions. He contended that
Calloway’s actions were influenced by narcotics. He urged the court to sentence Calloway to a
term of 10 years in state prison, arguing that he did not deserve the
equivalent of a life sentence.
The
prosecutor argued that Calloway did not come within the spirit of
shooting someone in which Mr. Calloway forced someone to grab a gun and forced
him to shoot at someone involving drug transactions. And in turn Mr. Calloway shot at that
individual.†He also emphasized the
danger presented when Calloway entered the Trader Joe’s with a loaded gun when
at least nine employees were present. He
argued that danger was demonstrated when Morales was shot in a struggle with
Calloway. The prosecutor argued that
society would not be safe if Calloway was given a lesser sentence. He contended that Calloway had failed to gain
wisdom and judgment from his experiences and asked for the maximum sentence.
The trial
court noted that it had continued the sentencing hearing for two days in order
to carefully review the file so the decision on striking the prior would not be
rushed. The court denied the
motion. It indicated that since Calloway
had engaged in conduct which could easily have resulted in the death of another
person, an absolutely clean post-conviction record and extraordinary
circumstances would have to be demonstrated to warrant granting the motion. The court emphasized Calloway’s history of
convictions and repeated returns to criminal conduct after release. The court concluded that the prior prison
terms did not convince Calloway to lead a law-abiding life, and stated that it
would not show leniency on this record. The
court sentenced Calloway to aggregate sentence of 29 years four months on the
convictions in the first trial, much less than the sentence requested by the
prosecutor.
Calloway
characterizes the trial court as having a “pre-disposition to not strik[e] his
single stale ‘strike’ prior felony conviction.†He argues the court never genuinely considered
granting the motion. He minimizes his
criminal conduct between the 1987 attempted murder and the Trader Joe’s
robbery. He contends that he refrained
from committing violence in the current case, failing to acknowledge that
Morales suffered a serious gunshot wound to his leg.
We find no
abuse of the trial court’s discretion in declining to strike the 1987 attempted
murder strike allegation. Calloway’s
criminal history and the violence of the present crime establish him to be a
recidivist well within the spirit of the Three Strikes law. He did not refrain from committing crimes
despite repeated incarcerations. The
trial court recognized its discretion and took into account the relevant
factors in the exercise of that discretion.
(People v. Philpot (2004) 122
Cal.App.4th 893, 907.) Calloway did not
rebut the strong presumption that a court acts within its discretion in
imposing a sentence under the Three Strikes law. (In re
Large (2007) 41 Cal.4th 538, 550-551.)
B. Section 654
1. Calloway
Calloway
argues the trial court erred in imposing sentence on both counts 1 and 2 based
on the convictions in the first trial. He
contends that sentence on count 1 should have been stayed. Both counts involved victim Morales. Count 1 is second degree robbery (§ 211) and
count 2 is assault with a semi-automatic weapon (§ 245, subd. (b)). Count 2 was made the base term, for which
Calloway was sentenced to the high term of 9 years, doubled to eighteen years
in light of the prior strike finding, plus 10 years for the gun use under
section 12022.5, subdivision (a), for a total sentence of 28 years on this
count. On count 1, the court imposed a
sentence of three years, doubled to six years, plus one-third of the sentence
(3 years and 4 months) based on the personal use of a firearm (§ 12022.53,
subd. (b)), for a total sentence of nine years and four months, to run
concurrent to count 2. Calloway contends
that these violations arose from an indivisible transaction for which he may
receive only one punishment under section 654.
“Section
654, subdivision (a), provides in pertinent part: ‘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.’ It has long been held that section 654 bars
multiple punishments for separate offenses arising out of a single occurrence
where all of the offenses were incident to one objective. [Citations.]â€
(People v. Calderon (2013) 214
Cal.App.4th 656, 661.)
In
1210, 1214, a loss prevention officer at a store observed the defendant
shoplifting. She followed him from the
store and confronted him in the parking lot, identifying herself. The defendant took a nunchaku from his pants
and started swinging it. Several
employees eventually subdued him, although one suffered a head injury in the
melee. The defendant was convicted of a
number of crimes, including burglary and three counts of assault with a deadly
weapon. (Id. at pp. 1213–1214.) On
appeal, he argued that his sentence for burglary, among others, should have
been stayed. The Court of Appeal applied
the established test to determine whether the offenses were indivisible for
purposes of section 654, which turns on the ‘“defendant’s intent and objective,
not the temporal proximity of his offenses.â€â€™
(Id. at pp. 1214–1215,
quoting People v. Harrison (1989) 48
Cal.3d 321, 335.) “Where the commission
of one offense is merely ‘“a means toward the objective of the commission of
the other,â€â€™ section 654 prohibits separate punishments for the two
offenses. [Citation.]†(Id.
at p. 1215.)
On appeal,
we apply the substantial evidence standard of review to a determination of
whether the defendant acted with more than one objective. (People
v. Wynn, supra, 184 Cal.App.4th
at p. 1215.) At sentencing after the
first trial, the trial court said it did not believe that section 654 applied
to the assault with a deadly weapon count. “When a trial court sentences a defendant to
separate terms without making an express finding the defendant entertained
separate objectives, the trial court is deemed to have made an implied finding
each offense had a separate objective. (
730–731.)†(People v. Islas (2012) 210 Cal.App.4th 116, 129.)
Calloway
argues that the robbery and assault on Morales were committed with the single
objective of robbing the Trader Joe’s store.
He contends that nothing in the record supports the implied finding that
he harbored multiple and independent objectives.
We
disagree. The Court of Appeal in
substantial evidence that the defendant’s objective during the burglary was to
obtain cigarettes, but that his objective during the assault was to avoid being
arrested for theft. (
harbored the intent to rob the Trader Joe’s store; he admitted as much in his
testimony. But the assault charge arises
from his physical altercation with Morales, during which Morales was shot. Like the security guard in
apprehend Calloway. There is substantial
evidence that Calloway committed the assault as he sought to avoid capture and
arrest.
Respondent
relies on another similar case, People v.
Watts (1999) 76 Cal.App.4th 1250, which arose from the armed robbery and
assault of restaurant employees late at night.
The trial court concluded that the robberies were separate from the
assaults and imposed separate punishments for each. (Id.
at p. 1264.) On appeal, Watts
argued that the robberies and assaults were part of a single course of conduct
committed with the intent to commit robbery.
(Id. at pp. 1264–1265.) The appellate court found substantial
evidence that each victim was assaulted either as she was attempting to comply
with her assailant’s demands for money, or was attempting to escape. It concluded that the robberies “were well
under way at the time the assaults occurred,†and that this evidence supported
the conclusion that the assaults were not simply a means of committing the
robberies. Substantial evidence
supported the trial court’s conclusion that the assault of each victim was a
separate act with a separate objective, allowing the court to impose separate
sentences for each crime. (
robbery was well underway, after Morales attempted to apprehend him or to
prevent the robbery.
We find
substantial evidence to support the trial court’s implied finding that Calloway
entertained independent objectives in robbing and assaulting Morales. We find no error in the imposition of
punishment for each count.
2. Bridges
The trial
court found that section 654 applied to Bridges’ convictions for assault as to
victims Bates (count 12), Hilton (count 13), Arteaga (count 14), Morales (count
15, and Kuehlthau (count 16), finding Bridges acted with the single objective
of committing robbery. But the trial
court did not apply the same reasoning to the assault and robbery involving
victim Gilger (counts 3 and 11). The
trial court selected count 11 (assault on Gilger) as the principal term,
imposing a total term of 17 years.
name="_ftnref8" title="">[8] On count 3, the robbery of Gilger, the court
imposed one-third the midterm of three years, doubled, for a total of two years
four months.
Respondent
concedes that the trial court should have stayed the sentence on count 3
pursuant to section 654 because of its finding that Bridges engaged in an
indivisible course of conduct with the objective of robbing the Trader Joe’s
store. It observes that there is no
reason to treat Gilger differently from the other victims in the counts for
assault which were stayed. It contends
the sentence on count 3, the shorter of the two convictions as to Gilger,
should be stayed, and Bridges’ sentence reduced by two years, four months.
We agree
with the parties that section 654 applies to prohibit punishing Bridges for
both the assault and robbery of Gilger.
We shall stay the sentence on count 3 and direct the entry of a new
judgment reducing Bridges’ sentence by two years, four months.
VI
Respondent
also asks that we modify the Calloway abstract of judgment to reflect the
imposition of a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40
court security fee (§ 1465.8, subd. (a)(1)) for each of the 12 counts for which
he was convicted, for totals of $360 and $480 respectively, and that we modify
the Bridges abstract of judgment to reflect the imposition of a $30 criminal
conviction assessment (Gov. Code, § 70373) and a $40 court security fee (§
1465.8, subd. (a)(1)) for each of the 14 counts for which he was convicted, for
totals of $420 and $560 respectively.
Bridges,
joined by Calloway, argues the issue was forfeited or waived by the
prosecution’s failure to raise it before the trial court. He cites People
v. Tillman (2000) 22 Cal.4th 300, 302-303 (Tillman), which held that the People could not request imposition
of restitution and parole revocation fines on appeal because no objection had
been raised in the trial court.
In
the Supreme Court clarified the Tillman holding
and concluded that a mandatory fee may be corrected on appeal even if the error
was not raised in the trial court. (Id.
at p. 853.)
Both the
criminal conviction assessment and the court security fee are required (
1105, 1112 [Gov. Code, § 70373]; People
v. Schoeb (2005) 132 Cal.App.4th 861, 865 [§ 1465.8, subd. (a)(1)]), and
therefore may be modified on appeal despite the failure of the People to object
at trial.
At sentencing, the trial court stated that each defendant
was to pay a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40
court operations assessment fee (§ 1465.8). The Bridges abstract of judgment correctly
reflects his 14 felony convictions. But
the criminal conviction assessment imposed under Government Code section 70373
was $360 rather than the correct figure of $420 (14 times $30). The fee imposed under section 1465.8 was $40
total, rather than the correct figure of $560 (14 times $40). Calloway’s abstract of judgment reflects his
12 felony convictions. The criminal
conviction assessment is $360, which is correct. The court security fee imposed under section
1465.8 is $200 rather than the correct figure of $480 (12 times $40). We modify the judgments of conviction pursuant
to People v. Smith,
the correct amounts.
DISPOSITION
The
judgment of conviction as to Calloway is modified to provide for a court security
fee of $480 under section 1465.8. The
trial court is directed to amend the Calloway abstract of judgment to reflect
this change. As modified, the judgment
of conviction as to Calloway is affirmed in all other respects. The sentence imposed on Bridges for count 3
(robbery of Gilger) is stayed and his total sentence reduced accordingly. The Bridges abstract of judgment must be
modified to reflect that the sentence on count 3 is stayed and the aggregate
sentence reduced, and that a criminal conviction assessment of $420 (Gov. Code,
§ 70373), and a court security fee of $560
(§ 1465.8) are imposed. The trial court is directed to amend the
Bridges abstract of judgment to conform to these changes. In all other respects, the judgment of
conviction as to Bridges is affirmed.
The clerk is directed to forward copies of the correct abstracts of
judgment to the Department of Corrections and Rehabilitation.
EPSTEIN,
P. J.
We concur:
WILLHITE,
J.
SUZUKAWA,
J.
name="_ftn1" title=""> [1] Statutory references are to
the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The victims in these counts
were employees Morales, Gilger, Gonzalez, Kuehlthau, Zaldana, Bates, Hilton,
Arteaga. During the first trial, the
court granted a defense motion to dismiss count 10, the second degree charge of
robbery of another person.
