P. v. Evans

Filed 9/27/07 P. v. Evans CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William R. Bailey, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed in part and reversed in part with directions.

Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant Tommy Leonard Evans.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant Carlton Deandre Flemister

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ronald A. Jakob, Jennifer A. Jadovitz, and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

Codefendants Tommy Leonard Evans (Evans) and Carlton Deandre Flemister (Flemister) were convicted of second degree robbery (Pen. Code,^[1] 211), assault with a deadly weapon ( 245, subd. (b)), and carrying a loaded firearm. ( 12031, subd. (a)(2)(f).) The jury also found true the enhancement allegations that they personally used a firearm. ( 12022.53, subd. (b) & 12022.5, subd. (a).)

Evans was sentenced to 18 years, which consisted of the upper term of five years on count 1 plus a consecutive term of 10 years for the section 12022.53, subdivision (b) allegation. As to count 2, the trial court imposed a consecutive one-year term which was one-third the midterm. One-third the term of 10 years on the section 12022.53, subdivision (b) allegation as to count 2, or three years and four months, was stayed. A consecutive term of two years, which was one-third the midterm, was imposed as to count 3. The 16-month term (one-third of four years) on the section 12022.5, subdivision (a) allegation as to count 3 was stayed. Finally, a concurrent term of two years (one-third the midterm) was imposed as to count 4. The trial court granted probation as to codefendant Flemister.

On appeal, Flemister contends there was insufficient evidence that he was the driver of the vehicle used to commit the robberies and the trial court erroneously admitted into evidence a state gun registry showing he did not own the firearm. We conclude his contentions are without merit and affirm.

In his appeal, Evans asserts the trial court committed several sentencing errors. He claims the multiple punishment bar of section 654 compels his sentence on count 3 to be stayed. Respondent concedes Evanss respective two-year term imposed on count 3 must be stricken under the multiple punishment bar of section 654. We find their joint contention to be meritorious.

Evans also contends the stayed firearm-use enhancement on count 3 must be stricken. Again, respondent concedes the merit of Evanss contention that the personal use of a firearm allegation can only be imposed once and the enhancement on count 3 must be stayed pursuant to section 12022.53, subdivision (f). We agree with the parties contentions that the trial court erred in failing to strike the enhancement on count 3 for personal use of a firearm.

Finally, Evans argues that imposition of the upper term violates his right to a jury trial because the aggravating factors were not tried to a jury beyond a reasonable doubt. We conclude Evans is entitled to be resentenced pursuant to Sandoval.^[2] In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On August 21, 2004, 15-year-old Albert and 17-year-old Julian were selling chocolates and board games door-to-door for a youth organization. Around 8:00 p.m., both teens were waiting for their boss to pick them up to return them to their homes. While waiting, they were counting the money they had earned that day. Their candy sales resulted in Albert making $49 and Julian making approximately $30 dollars.

A vehicle approached them and the passenger door opened.^[3] Evans, who was wearing a Dallas Cowboys football jersey, put a blue bandana on his face, threw a plastic grocery bag into the street, and pulled out a gun which he pointed at Alberts chest.

Evans ordered the teens to throw their money into the bag. Albert threw in $49 and Julian threw about $30 into the bag. After putting the money on the bag, the boys ran away. They went to the home of Arturo Navarro (Navarro) and his wife, who had earlier purchased merchandise from them, and asked to use their telephone to call relatives. Albert explained that their money had been stolen. Navarro left in his car to locate the robbers vehicle. Albert called their boss, who said he was at a neighboring gas station. When the boys told their boss what happened, he refused to take them home because he did not believe they had been robbed. Having suffered insult after injury, the teens returned to Navarros home, and Navarro called the police.

A deputy was dispatched and spoke with the boys. During his interview with the boys, a vehicle drove slowly by. The boys exclaimed, Thats the vehicle. Those are the guys that robbed us. Several deputies gave chase and initiated a stop. They found an unloaded nine-millimeter SIG Sauer underneath clothing on the floorboard of the rear passenger seat. A pellet gun was found in the trunk. The boys identified the gun in the car as the one used in the robbery. Evans had $46 on his person and a black bandana in his back pocket. Flemister had $21 on him.

The vehicle was impounded and transported to a storage facility. The tow truck driver found a loaded .38 Special Colt revolver in the cup holder, and turned the weapon over to authorities.

Evans and Flemister were charged with second degree robbery ( 211), assault with a deadly weapon ( 245, subd. (b)), and carrying a loaded firearm ( 12031, subd. (a)(2)(f)), along with enhancement allegations that they personally used a firearm. ( 12022.53, subd. (b) & 12022.5, subd. (a).) After a jury trial, both defendants were convicted of all counts and the enhancement allegations were found true.

At the close of the prosecutions case, Flemister orally moved to dismiss the charges based on the insufficiency of evidence. The trial judge denied the motion. After trial, Flemister filed two written motions requesting the court to grant a new trial under section 1181, or in the alternative, to set aside the verdicts and dismiss the charges under section 1385. Both motions were based on insufficiency of the evidence grounds. After a hearing on the motions, the trial court denied Flemisters requests.

DISCUSSION

A. There Was Sufficient Evidence Proving Flemister Was the Driver of the Vehicle.

On appeal, Flemister claims there was insufficient evidence identifying him as the driver of the vehicle to support the convictions.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

We conclude there was reasonable, credible, and solid evidence showing that Flemister was the wheelman of the vehicle used to rob the victims. The vehicle was registered to Flemisters grandmother. One and one-half hours after the robbery, the victims and Navarros wife observed the grandmothers vehicle driving by slowly and pointed it out to the officers. When police initiated a traffic stop of the grandmothers vehicle, they found Flemister driving the car. Sitting in the right rear passenger seat was Evans, wearing the same white Dallas Cowboys jersey with blue lettering he had worn at the time of the robbery. Defendant matched the general description the victims had given: a heavyset Black male. After the robbery, Flemister had $21 dollars in his pocket. Albert identified Flemister as one of the robbers at an in-field lineup. Albert again identified Flemister at trial.

B. Admitting a Business Record Regarding the Ownership of a Gun Does Not Violate Crawford.

Flemister was charged with carrying a loaded firearm in a vehicle on a public street while he was not the registered owner of the firearm. ( 12031, subd. (a)(2)(f).) To prove the offense, the prosecutor submitted into evidence an affidavit from a Department of Justice custodian of records, Dennis Hillsburn, declaring: (1) he was in charge of the departments automatic firearm system records, and (2) enclosed was a CLETS^[4]printout showing that, in 1995, a .38 Colt revolver was purchased by Hardgon Williams, date of birth December 8, 1908. Defense counsel objected to the affidavit on the grounds that the document violated Flemisters right to confront and cross-examine witnesses. He asserts the affidavit was testimonial, as it was a business record specifically prepared for the purposes of trial, thus violating the prophylactic safeguards of Crawford.^[5]. He argues the trial courts decision to overrule his Crawford objection was reversible error.

The Sixth Amendments Confrontation Clause (the Confrontation Clause) provides: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . . In Crawford, supra, 541 U.S. 36, the United States Supreme Court held the Confrontation Clause excludes testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. (Id. at p. 51.)

The Confrontation Clause applies to testimonial statements. The text refers to witnesses against the accusedin other words, those who bear testimony. [Citation.] Testimony, in turn, is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.] (Crawford, supra, 541 U.S. at p. 51.) The clauses purpose is to assess whether the testimonial statement is reliable in the crucible of cross-examination. (Id. at p. 61.) The U.S. Supreme Court in Crawford noted that business records were not testimonial. (Id. at p.56.)

In this case, we find that the Department of Justices public record was not testimonial. A gun sellers hearsay statement is not testimony of a witness used to prove a fact to be used at trial.

When a person sells a gun, he is required to submit a form to the Department of Justice detailing the make and model of the gun, the purchasers identifying information (including his name and date of birth), and the date of the sale, amongst other things. ( 12076, 12077.) In 1995, a gun seller reported to the State of California, I sold a .38 Colt revolver to 87-year old Mr. Hardgon Williams. Pursuant to statute, that gun sale was recorded in the registry of gun sales, along with hundreds of other gun sales reported by firearm businesses. The reporting of the gun sale by the seller was a business record and the recording of the sale in the state registry by the state was a public record. (Evid. Code, 1271, 1280.) The gun sellers statement, I sold 87-year old Hardgon Williams a .38 Colt made 10 years before trial is not the testimony of a witness made during an investigation to elicit evidence to be used at trial. Moreover, a public official recording a gun sale into the states registry is not testimony. It is the public employees function to record the incident around the time of the sale, irrespective of whether that fact will be used in future litigation.

We conclude that the admission of the custodian of records affidavit and the CLETS record of legal gun owner did not violate Crawford.

C. Evans Should be Resentenced in Accordance with Sandoval.

At Evanss sentencing, the trial court chose Count 1 (the robbery of victim Albert) as the principal term. It found the following facts were circumstances in aggravation justifying the imposition of an upper term of five years: Evans induced Flemister to participate, he knew or should have known the weapon was stolen, and the victims were vulnerable.

Evans contends imposing the upper term was unconstitutional because the trial court could not increase his punishment when he neither admitted the aggravating facts, nor were the aggravating facts found true by a jury beyond a reasonable doubt.

At the time Evans committed the offenses on August 21, 2004, Blakely was newly decided. It held that statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict alone and not additional facts found by the judge. (Blakely, supra, 542 U.S. at p. 303.)

Evanss trial was held from November 8 through November 18, 2005. During that period, the California Supreme Court held in People v. Black (2005) 35 Cal.4th 1238 (Black) that for the states triumvirate sentencing scheme (low, mid, and upper terms), the upper term was the statutory maximum for purposes of Sixth Amendment analysis under Apprendi and Blakely. (Id.at pp.1257-1258.) Evans was sentenced by the trial court to the upper term under the rubric of Black.

The United States Supreme Court in Cunninghamv. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) rejected the holding in Black that the upper term was the statutory maximum, reiterating that the midterm is the statutory maximum because that is the highest term a judge may imposed based on the facts found in the jurys verdict alone, without a judge finding any additional aggravating facts. (Cunningham, supra, 127 S.Ct. at pp. 870-871.) In Cunningham, the court wrote, the ball . . . lies in [Californias] court to modify its determinate sentencing statutes to comply with its recent Sixth Amendment jurisprudence. (Cunningham, supra, 127 S.Ct. at p.876.) To comport with Apprendi, Blakely, and Booker, it admonished California either to require a jury to find any fact that enhances punishment true beyond a reasonable doubt, or to give judges broad discretion to select punishment within a sentencing range. (Cunningham, at pp. 876-877.)

The state legislature has lobbed the ball back into the opposing court by passing Senate Bill 40 in response. Senate Bill 40 passed both houses of the legislature and was signed by the Governor as an urgency measure, taking effect immediately on March 30, 2007. (Stats. 2007, ch. 3.) It amended section 1170, subdivision (b) as follows:^[6]

(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officers report, or to present additional facts. In determining whether there are circumstances that justify imposition of the upper or lower term, mitigation. In determining the appropriate term, the court may consider the record in the case, the probation officers report, other reports including reports received pursuant to section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. Theterm selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.

As we noted earlier, the amendment made three changes: (1) eliminated the mandatory midterm and gave the trial court discretion to select an appropriate term, (2) requires trial courts to select the term that best serves the interest of justice, and (3) requires trial courts to support their sentencing selections with reasons, not facts.

To determine whether the matter should be remanded to resentence Evans under the Cunningham rule to the midterm, statutory maximum, or pursuant to Senate Bill 40,^[7]we requested supplemental briefing from the parties.^[8] In the interim, the California Supreme Court decided Sandoval, supra.

In Sandoval, the California Supreme Court essentially Bookerized the Determinate Sentencing Law (DSL). In Booker, the United States Supreme Court transformed the Federal Sentencing Guidelines from a mandatory to discretionary sentencing scheme to retain Congresss intent to assure that sentencing guidelines provided certainty and fairness, avoided unwarranted sentencing disparities, and maintained flexibility to tailor individualized sentences. (Booker, supra,543 U.S. at p. 264) Similarly in Sandoval, the California Supreme Court applied the same remedy to judicially reform section 1170 so as to afford trial courts broad discretion in sentencing a defendant to any one of the three terms within the statutory range, without requiring a finding of aggravating and mitigating circumstances. (Sandoval, supra,41 Cal.4th at p. 843-844, 846, 849, 852.)

To resolve post-conviction claims, it directed that cases be remanded for resentencing proceedings and conducted in a manner consistent with the amendments to section 1170 adopted by the Legislature. (Sandoval, supra,41 Cal.4th at p. 846, 852.) Therefore, in light of Sandoval, we reverse that portion of the judgment sentencing Evans to the upper term five years on the principal count and remand to the trial court for resentencing in accordance with the instructions given in Sandoval.

D. The Trial Court Erred in Imposing a Consecutive Term on Count 3.

Evans contends that imposing a consecutive sentence on count 3 and a concurrent sentence on count 4 violates section 654 because these convictions arose out of a single indivisible course of conduct.

With respect to count 3, he acknowledges that he may be sentenced to the assault with a semiautomatic firearm charge, but states it may not be imposed in addition to the sentence for the robbery. Since the assault upon Albert with a firearm constitutes the same act as robbing Albert with a firearm, imposing sentence for the assault results in double punishment for a single act.

The prosecution concedes that the assault stemmed from the same indivisible course of conduct as the robbery; hence, imposing a concurrent term for count 3 based on a single objective violates section 654. We agree and reverse the imposition of the concurrent sentence on count 3 as to Evans for the assault with a semiautomatic firearm conviction and order the two-year term on count 3 be stayed. (People v. Brown (1989) 212 Cal.App.3d 1409, 1426-1427, disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)

Evans also maintains that imposing a concurrent two-year term for count 4 violates the dual use prohibition because the act of carrying a loaded firearm comprises the same conduct as robbing Albert and Julian with a firearm. The People counter that Evans had an independent intent for each crime: one was to possess the gun inside the car (i.e. carry a loaded weapon) before he pulled it out and pointed it at Albert to commit the robbery. We disagree with Evanss assertion and find that he was properly sentenced to a concurrent term.

Section 654 provides: 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 . . . . It prohibits multiple punishments for a single criminal act, or indivisible course of criminal conduct, that violates more than one criminal law. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.] (People v. Deloza (1998) 18 Cal.4th 585, 592.)

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, if a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)

A trial court decides whether criminal acts had one or multiple objectives. The question is one of fact, and if the trial courts conclusion is supported by substantial evidence, it is upheld on appeal. (People v. Brown (2007) 148 Cal.App.4th 911, 915.)

Substantial evidence supports the trial courts finding that Evans acted with multiple objectives. Here, Evans had been riding in the vehicle with a loaded semiautomatic in his possession before he pulled out the gun, pointed it at Alberts chest, and demanded both boys place their money inside the plastic grocery bag. A justifiable inference from this evidence is that defendants possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after the crimes. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) Section 654 does not apply in cases where the defendant arrives at the scene of his primary crime already in possession of the firearm. (People v. Jones (2002) 103 Cal.App.4th 1139, 1145.)

We conclude that the trial court properly imposed a concurrent sentence for the carrying a loaded firearm offense.

E. Section 12022.53 Firearm Enhancement Can Only be Imposed Once.

Evans contends the trial court imposed an unauthorized sentence when it stayed, rather than strike, the section 12022.53, subdivision (b) enhancement on count 2 and the section 12022.5, subdivision (a) enhancement on count 3. The People concede that the enhancement on count 3 should have been stricken, but disputes Evanss claim that the enhancement on count 2 should be stricken, maintaining instead that the enhancement was properly stayed.

We agree that section 12022.5, subdivision (a) enhancement on count 3 should have been stricken, rather than stayed. Only one additional term of imprisonment can be imposed per person for each crime. If more than one enhancement per person is found true under section 12022.53, a trial court must impose the enhancement that provides for the longest term of imprisonment. An enhancement involving an assault weapon specified in section 12022.5 shall not be imposed in addition to the enhancement imposed under section 12022.53. ( 12022.53, subd. (f).) As Evans can be sentenced for only one of the two firearm enhancements found true, either 12022.5 or 12022.53, the section 12022.53 enhancement must be imposed because it provides for the longest imprisonment term, 10 years. The section 12022.5 term the court gave was one year and four months (one-third the midterm of four years). Therefore, the 16-month section 12022.5 enhancement must be stricken. (See People v. Bracamonte (2003) 106 Cal.App.4th 704, 712.)

With respect to count 2, we find that the trial court properly stayed, rather than strike, the section 12022.53 enhancement. [S]ection 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation found true under that section and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term. (People v. Bracamonte, supra, 106 Cal.App.4th at p. 713; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062.) A sentencing judge cannot strike an enhancement because it exceeds limitations placed on imposing multiple enhancements. Instead, the judge must impose the aggregate term of imprisonment and then stay execution of that portion of the term that exceeds those limits. (Id. at p. 1062, fn. 4, citing Cal. Rules of Court, rule 4.447.)

We conclude that the firearm enhancement on count 2 should remain stayed and the firearm enhancement on count 3 should be stricken.

DISPOSITION

As to defendant Evans, the sentence on count 1 imposing the upper term of five years is reversed; the two-year term imposed on count 3 is stayed under section 654; the firearm-use enhancement on count 3 is stricken under section 12022.53, subdivision (f). The matter is remanded to the trial court for resentencing consistent with the views expressed in this opinion. The trial court is directed to forward a certified copy of the amended abstract to the Department of Corrections. In all other respects, the judgments are affirmed

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ KING

J.

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^[1] All further statutory references will be to the Penal Code unless indicated.

^[2]People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).

^[3] Albert made eye contact with the passenger, Evans; both he and Julian identified Evans as the passenger/gunman at trial. Albert identified Flemister as the driver at trial.

^[4]California Law Enforcement Telecommunications System. ( 12077, 12078.)

^[5]Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

^[6]Additions noted by italics and deletions noted by strikeout.

^[7]Section 1170, subdivision (b) as amended, effective March 30, 2007, hereinafter SB 40.

^[8] We are grateful to the parties for the assistance provided to this court through their exceptionally well written and thorough supplemental briefs.