Filed 12/12/17 P. v. Kose CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

WANI JUMA KOSE,

Defendant and Appellant.
D071219


(Super. Ct. No. SCD261804)


ORDER DENYING REHEARING
AND MODIFYING OPINION

NO CHANGE IN JUDGMENT

THE COURT:
It is ordered that the opinion filed herein on November 27, 2017, be modified as follows:
On page 26, after the last sentence in the discussion portion of the opinion and just prior to the disposition, the following new paragraph is inserted:
In a petition for rehearing the Attorney General argued that remanding the matter for resentencing would be an idle act because Kose is subject to mandatory consecutive sentencing under other Penal Code provisions. The Attorney General conceded that he did not raise this issue in his respondent's brief in response to Kose's request that the matter be remanded for resentencing. Forfeiture is appropriate here because the argument raised by the Attorney General in his rehearing petition could have been presented in his respondent's brief. (Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 338, fn. 10.) Additionally, Government Code section 68081 would require that we allow Kose the opportunity to brief this new issue. Under these circumstances, the Attorney General's argument is more appropriately presented to the trial court on remand. We express no opinion on the merits of the Attorney General's argument.

There is no change in the judgment.
Respondent's petition for rehearing is denied.



NARES, Acting P. J.

Copies to: All parties

Filed 11/27/17 P. v. Kose CA4/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

WANI JUMA KOSE,

Defendant and Appellant.
D071219



(Super. Ct. No. SCD261804)


APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed, remanded for resentencing.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Wani Juma Kose of one count each of robbery (Pen. Code, § 211; count 1), attempting to dissuade a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 2), and bribery of a witness (§ 138, subd. (a); count 3). Kose later admitted a prior strike conviction (§§ 667, subd. (b) & 1170.12) and allegations that he committed counts 2 and 3 while released from custody on bail (§ 12022.1, subd. (b)). After denying Kose's new trial motion, the trial court sentenced him to a term of 12 years in prison.
Kose appeals, contending (1) the trial court misinstructed the jury with a pinpoint instruction regarding the definition of perpetrators that lessened the prosecution's burden and deprived him of a fair trial, (2) insufficient evidence supported his robbery conviction, (3) the trial court abused its discretion by denying his new trial motion, and (4) the trial court failed to understand its discretion when it imposed a consecutive sentence as to count 2. We affirm the judgment, but remand the matter for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Omar N. and his friend, Tracy I., drove separate cars to a CVS store after eating lunch together. Tracy went inside the store while Omar remained inside his car using his phone. A yellow Crown Victoria pulled into the empty parking space next to Omar, and two men exited the car and went inside the CVS, while at least one other person waited inside the car. Tracy exited the CVS around the same time that the two men from the Crown Victoria were also leaving the store. Omar hopped into Tracy's passenger seat to say goodbye to her. Less than a minute later, Omar noticed that the Crown Victoria, driven by Kose, had pulled out of its parking space next to his car, and then pulled around to the parking space on the passenger side of Tracy's car. The Crown Victoria parked at an angle toward the front end of Tracy's car, approximately a foot away, which prevented Omar from easily opening the passenger door. Manasa Justin got out of the front passenger seat of the Crown Victoria about 15 seconds after Kose parked the car and opened the door to Omar's car.
After Justin got out of the Crown Victoria, Kose immediately began to reverse the car very slowly. Omar opened up the passenger side door to Tracy's car and had half of his body out of the car when a Hispanic in the rear seat of Crown Victoria pushed a pit bull out of the window toward him. Omar "just froze" when this happened. Omar was scared that the man was going to release the dog.
When Omar was able to make his way around the front of the Crown Victoria he noticed that Justin had taken Omar's cell phone from Omar's car and had tucked it into his waistband. Omar was scared to confront Justin, and concerned about the pit bull, so he headed back to his car to check whether his phone had been taken. Soon after he confirmed that his phone was missing, the Crown Victoria "peel[ed] out" of the CVS parking lot and quickly fled. Omar chased the car, but then stopped because of the traffic. He later flagged down a police officer.
The day after the robbery, San Diego Police Officer Phillip Clay was sitting in his patrol car when he saw a yellow Crown Victoria which matched the description of a vehicle involved in a robbery the day before. Officer Clay pulled the car over. Kose was driving, Justin was sitting in the passenger seat, and a large pit bull was sitting in the rear of the car. An audio and video recording of the traffic stop was played for the jury. When Officer Clay approached the car he stated: "This dog is mad at me, huh?" The dog could be heard barking in the video.
Two days after the incident, Omar viewed a photo lineup from which he identified Kose and Justin. CVS video surveillance showed the Crown Victoria reversing from the parking space, and Omar's car following the Crown Victoria out of the parking lot.
At the preliminary examination on July 30, 2015, Omar was talking to Tracy outside the courtroom when Kose approached and sat down. Kose offered Omar an iPhone, $300 to $400 in cash, and an EBT card to drop the charges.
DISCUSSION
I. ALLEGED INSTRUCTIONAL ERROR
A. Additional Background
CALCRIM Nos. 400 and 401 are the standard instructions for aiding and abetting. In their trial brief, the People noted that CALCRIM No. 401 defines an aider and abettor, but does not define a perpetrator. The prosecutor proposed to ameliorate this issue by providing a special instruction using a case note provided after CALCRIM No. 401, which states "[o]ne who engages in conduct that is an element of the charged crime is a perpetrator." The prosecutor explained to the court that because there were multiple perpetrators (Kose, Justin, and the man holding the dog), the proposed instruction would allow him to explain to the jury that there can be multiple perpetrators for a single crime. Over defense counsel's objection, the trial court added the following to CALCRIM No. 401: "Someone is a perpetrator if he or she engages in conduct that is an element of the charged crime."
When orally instructing the jury, the trial court did not read the written instructions verbatim, but instead paraphrased the written instructions. As orally instructed, with the deviations from the written instructions italicized, omissions from the written instruction bracketed, and the special instruction in bold, the oral instruction given to the jury read:
"A person may be guilty of a crime in two ways. [One] [H]e [or she] may have directly committed the crime—[I will call] and we will generally refer to that person as the perpetrator—[two] or he [or she] may have aided and abetted another [a] perpetrator, a perpetrator or maybe more than one perpetrator, who did directly commit[ed] the crime.

"And if he did so, and they prove to you beyond a reasonable doubt all the elements of the legal theory of aiding and abetting, then he [A person is] may be found guilty of the [a] crime [whether he or she committed it] as one who personally who [or] aided and abetted the perpetrator of the crime. In [Under] some [specific] circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the particular [first] crime.

"I referred to this earlier, but so you have it freshly in mind, [t]o prove a person [that the defendant is] guilty of a crime based on aiding and abetting that crime, the People must prove beyond a reasonable doubt each of the following elements that: [1.] The perpetrator committed the crime; secondly that Mr. Kose [2. The defendant] knew that the perpetrator intended to commit the crime that the perpetrator committed; and that [3.] Before or during the commission of the crime, that he, Mr. Kose, [the defendant] intended to aid and abet the perpetrator in the committing of the crime that the – Mr. Kose knew the perpetrator intended to commit.

"[AND]

"[4.] So with that knowledge and with that intent on his part, they must also show that he did something by [the defendant's] words or conduct which, [did] in fact aided and abetted [the perpetrator] in the committing [commission of] the [charged] crime.

"Someone is a perpetrator if he engages in conduct that is an element of the charged crime itself. But unless he's a perpetrator himself, then to be an [Someone] aider [s] and abettor [s a crime if] he must know[s of] that the perpetrator['s] intended to commit a crime [unlawful purpose], and he [or she] either aided and abetted and specifically intended [s] to, and then [does], in fact, did something with that intent, with that knowledge which, in fact, aids, facilitates, promotes, or encourages [or instigates] the [perpetrator's] commission of the [that] crime by the perpetrator.

"So mere [If you conclude that defendant was] presence [t] at the scene of the crime or failing [ed] to prevent a [the] crime without that additional knowledge, intent and purpose on the part of the alleged aider and abettor, that's not enough by itself to prove guilt. You should [may] consider those [that] facts [in determining whether the defendant was an aider and abettor.] if you find, in fact, he was [However the fact that a person is] present [at the scene of a crime] and [or] he failed [s] to prevent a [the] crime. You should consider those facts. But that's [does] not enough by itself, [make him or her an aider or abettor.] because you have to prove he himself intended to do something and, in fact, did something with the intent to, in fact, aid or promote or instigate the commission of the crime."

B. General Legal Principles
The trial court must instruct on the general principles of law relevant to and governing the case, including all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311, abrogated on other grounds in People v. Merritt (2017) 2 Cal.5th 819, 831.) A trial court can refuse instructions that highlight specific evidence because such an interpretation " 'invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence,' it is considered 'argumentative' and therefore should not be given." (People v. Earp (1999) 20 Cal.4th 826, 886.)
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
C. Analysis
Kose does not argue that the trial court's paraphrasing of the written instructions while orally instructing the jury in and of itself constituted prejudicial error. He contends the special instruction constituted reversible error because it was confusing, lessened the prosecution's burden, and deprived him of due process and a fair trial. He asserts the trial court compounded the error when it paraphrased the written jury instructions in orally instructing the jury, further confusing the required finding by the jury.
Kose contends that the special instruction added to CALCRIM No. 401 lessened the prosecution's burden of proof. On this point, Kose tenders a complex argument based on the court's paraphrasing of the written instructions and the prosecutor's closing argument. Kose notes that during closing argument the prosecutor displayed a slide showing the six elements of robbery that he needed to prove and then stated:
"This defendant didn't personally do this other than number one. [The defendant took property that was not his own.] I'll explain to you why he's a direct perpetrator as to Element 1. But he obviously wasn't the one who ran over and took the phone. He wasn't. He stayed in the driver's seat. But first before we can hold somebody accountable under and aiding and abetting and conspiracy, I've got to prove the crime happened first. So we're going to walk through that first, then we're going go through why he's responsible.

"Big ballpark picture. Again, refer to the instructions. I have to prove those to show it, but it's what you would think of. They were working as a team. Each of them had a role. Each had his part.

"So here's who's responsible. In Count—the first one—again, that's really small—the reason, I'll explain to you in a minute, why the defendant is actually responsible for taking the property that was not his own even though he's not the one who physically ran over and took it, okay, that was done by actually, the way the law defines it, a number of people.

"Mr. Justin was—strike that. Mr. Justin is responsible for No. 2 because the property was Mr. Omar's, taken from immediate presence. Again, Mr. [Justin] is the one who actually took the property at first. Taken against a person's will? Well, obviously he didn't consent to that, being Mr. Omar. Mr. Justin's responsible for that. Used force or fear to take the property. We know that's the person behind the driver, the coconspirator; somebody who's working, doing his part to make sure this victim cannot get to his property while it's being taken. Then you have a coconspirator, or Justin, that's what they're trying to do when they take it. Walk through one by one, but in the end, that's how it boils down.

"Took property that was not his own. Here's where the definition comes in and why the defendant, even though he sat in the driver's seat, is actually responsible as a direct perpetrator. We should take a step back. The word 'perpetrator,' when we talk about that, ladies and gentlemen—it's in the instructions—a perpetrator is somebody who engages in conduct that is an element of the offense.

"You don't have to do all six elements personally to be considered a perpetrator. It's kind of a term of art or legalese. It's an important one, though. Don't think by me saying that it's not. But I don't want anyone to be confused that in order to prove this, I have to have one person individually do all six of those elements. Not required assuming that I've proven the theories under which I've asked you to hold him responsible.

"Take somebody—something, when you gain possession and move it a distance, the distance may be short. So when Mr. Justin ran out and grabbed that and he took it back to the car, that's it. Actually, he's done with Element 1. As we get to the end of talking about Count 1, call it asportation, the carrying away of property, well, two people can possess things at the same time. You don't have to be physically touching it, both of you at the same time. And when this defendant drove them away, he took part in this. So he's directly responsible for that as a perpetrator because he helped carry away the loot." (Italics added.)

Kose complains that the prosecutor's argument made little sense and caused confusion because the evidence established that Kose did not commit the first element of robbery, that of taking of property not your own. Kose complains that, between the court's paraphrasing of the written instructions and the prosecutor's argument, the special instruction that "[s]omeone is a perpetrator if he engages in conduct that is an element of the charged crime itself," allowed the jury to convict him for robbery without finding all the elements of aiding and abetting. In other words, it could convict him of robbery if he committed a single element of robbery, even if he was not previously aware that his associates had intended to rob Omar. We disagree.
As a threshold matter, we reject Kose's contention that the court's paraphrasing of CALCRIM No. 401 confused the jurors or contributed to any alleged error. Misreading of jury instructions is at most harmless error when the written instructions received by the jury are correct. (People v. Osband (1996) 13 Cal.4th 622, 687.) The written version of jury instructions controls if there is a conflict between the written instructions and the oral instructions. (Id. at p. 717; People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113.) Other than the addition to CALCRIM No. 401 at issue, Kose does not contend any errors existed in the written jury instructions. The jurors had a copy of the written instructions with them during deliberations. In the event that any juror detected a difference between the court's oral instructions and the written instructions, we presume the jury followed the written instructions as the trial court instructed the jurors that they were to "[o]nly consider the final version of the instructions in [their] deliberations," whether they be "printed, typed, or written by hand."
We agree the prosecutor's argument could have possibly confused the jury as he initially stated that Kose committed the first element of robbery, taking property that was not his own, even though he did not take the phone. (See ante, italicized portion of prosecutor's argument.) Nonetheless, the argument considered as a whole, correctly informed the jury that Kose could be convicted of robbery, under either aiding and abetting or conspiracy theories, even if he did not personally commit all six elements necessary to prove robbery. We review post aider and abettor liability and conspiracy liability. We then explain why, after considering the entire charge to the jury, it is not reasonably likely that the jury understood the special instruction as allowing them to convict Kose of robbery even if Kose was not previously aware that his associates had intended to rob Omar. Finally, given the evidence presented, we conclude that even assuming the trial court erred in giving the special instruction, the alleged error was harmless.
"Under California law, a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)" (People v. Prettyman (1996) 14 Cal.4th 248, 259.) A person is liable as an aider and abettor if the person (1) knows of the actual perpetrator's unlawful purpose; (2) by act or advice, aids, promotes, encourages, or instigates the actual perpetrator's commission of the crime; and (3) acts with the intent or purpose to commit, encourage, or facilitate the actual perpetrator's commission of the crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1118; Prettyman, supra, at p. 259.)
Alternatively, "[o]ne who conspires with others to commit a felony is guilty as a principal. (§ 31.)" (In re Hardy (2007) 41 Cal.4th 977, 1025.) A conspiracy consists of an agreement to commit a crime, followed by an overt act in furtherance of that agreement. (People v. Homick (2012) 55 Cal.4th 816, 870.) The existence of the agreement may be proven circumstantially through " 'the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) "Common design is the essence of a conspiracy and the crime can be committed whether the parties comprehend its entire scope, whether they act in separate groups or together, by the same or different means known or unknown to them, if their actions are consistently leading to the same unlawful result." (People v. Means (1960) 179 Cal.App.2d 72, 80.)
The trial court instructed the jury that a person who did not directly commit the crime could be liable for the offense if he or she aided and abetted a perpetrator who directly committed the crime. (CALCRIM No. 400.) The jury knew that to establish Kose's guilt when others personally committed the crime, the People must prove that Kose knew the perpetrator intended to commit the crime, that he intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the crime. (CALCRIM No. 401.) Additionally, to be guilty of robbery as an aider and abettor, Kose had to form the intent to aid and abet the robbery before or while a perpetrator carried the stolen property away. (CALCRIM No. 1603.)
The special instruction added to CALCRIM No. 401 told the jury that a perpetrator is one who engages in conduct that satisfies an element of a crime. While Kose posits that this instruction allowed the jury to convict him of robbery if he committed a single element of robbery, this argument ignores other instructions telling the jury that the People needed to prove all six elements of robbery beyond a reasonable doubt. (CALCRIM Nos. 220, 1600.) The court also instructed the jury to consider all the instructions together and that some of the instructions might not apply. (CALCRIM No. 200.) Viewed together, the written instructions informed the jury that to find Kose guilty, the People had to establish that he either personally performed all six elements of robbery, or he aided and abetted other perpetrators as to any elements of robbery that he did not personally perform.
Even assuming the trial court erred in giving the special instruction, the error was harmless as the evidence established all the elements of robbery (see pt. II & fn. 8, post) and Kose's guilt under either an aiding and abetting or conspiracy theory. While Kose and another individual entered the store, at least one individual remained in the Crown Victoria where they could observe Omar using his phone. Omar got into Tracy's car to say good bye to her. Omar left his phone in his car with the windows half down.
At about the same time, Kose got into the driver's seat of the Crown Victoria and moved it next to the passenger side of Tracy's car, positioning it in such a way to block Omar's exit. Justin then got out of the front passenger seat of the Crown Victoria to steal Omar's phone. As soon as Justin exited the Crown Victoria, Kose began to slowly pull the car out of the parking space. As Omar tried to exit the car, a man in the back seat of the Crown Victoria thrust a pit bull out the window, causing Omar to freeze. When Justin returned to the Crown Victoria with Omar's phone, Kose "peel[ed]" out of the parking lot. The suggestion that Kose maneuvered the Crown Victoria completely unaware of Justin's intent strains credulity.
Considering all of the facts together, there is not a reasonable possibility that the jury found that Kose acted as a perpetrator with respect to a single element of robbery, but he was unaware of his cohorts' plan to complete the remaining elements of the robbery. Thus, even assuming the trial court erred in giving the special instruction, the error was harmless beyond a reasonable doubt.
Finally, Kose contends the special instruction confused the jurors. In the absence of any evidence to the contrary, we presume jurors understood and followed the trial court's instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746.) Here, there is no evidence of jury confusion. Kose provided no evidence from the record, such as a question from the jury to the court regarding the issue.
Because we rejected Kose's argument that the special instruction constituted error, we reject his contention that the special instruction deprived him of due process and a fair trial.
II. ROBBERY CONVICTION
A. General Legal Principles
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.) The force or fear element of robbery is stated in the disjunctive. Use of fear or intimidation without force to induce the victim to part with property may constitute robbery. (People v. Brew (1991) 2 Cal.App.4th 99. 104.) Although the taking must be accomplished by force or fear, the defendant need not have intended the victim to experience force or fear—only to deprive the victim of the property permanently. (People v. Anderson (2011) 51 Cal.4th 989, 995-996.)
"The fear mentioned in Section 211 may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.) "Fear may be inferred from the circumstances in which a crime is committed or property is taken." (People v. Holt (1997) 15 Cal.4th 619, 690.) The victim's fear need not be extreme. (People v. Davison (1995) 32 Cal.App.4th 206, 216.) "[T]he requisite force or fear need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery." (People v. Flynn (2000) 77 Cal.App.4th 766, 772.) "So long as the perpetrator uses the victim's fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator's specific words or actions designed to frighten, or by the circumstances surrounding the taking itself." (Id. at p. 772.)
Where a defendant challenges the sufficiency of the evidence supporting a conviction our task is to review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) It is not our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.) The testimony of a single witness, if believed by the jury, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal of a conviction for insufficient evidence is only required if under no hypothesis whatever is there substantial evidence to support the conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)
B. Analysis
Kose contends the prosecution did not meet its burden of proving each element of the crime of robbery because the evidence did not establish the element of "force" or "fear" required for a robbery conviction. Kose points out that the pit bull barked at Officer Clay when he approached the Crown Victoria during the traffic stop. He contends that during the alleged robbery his associates did not "use" the pit bull; rather, the pit bull acted of its own volition and behaved like a dog normally behaves when a person approaches a car—by barking and sticking its head out the window. We reject this contention as the jury could have reasonably concluded that Kose, acting in concert with the individual controlling the pit bull, used fear to retain Omar's phone and make a getaway.
Omar testified that as he opened the door to Tracy's car to get out, "they pull[ed] [] a pit bull, out the window." Omar described that the Hispanic male was "basically throwing [the dog] at me," stating the dog got "half his body" out of the car with the dog about two and a half feet away from him. Omar "froze" when this happened because he was scared that the man was going to release the dog. Omar was eventually able to get out of the car, saw Justin with his phone, but was scared to confront him and scared of the dog. Tracy similarly testified that the people in the Crown Victoria "put the window down and pull[ed] the dog out," with almost half of the dog's body out of the car. Tracy was scared of the pit bull.
Here, the fear Omar experienced aided Kose and his cohorts in accomplishing the crime. As noted ante, Omar was afraid of the pit bull. Omar's fear of Justin and the pit bull prevent him from confronting Justin and allowed Justin and his cohorts to remain in possession of the phone. In essence, use of the pit bull was no different from the use of any other dangerous weapon—it caused the victim to reconsider attempting to retrieve his stolen property due to fear of injury. (People v. Henderson (1999) 76 Cal.App.4th 453, 469-470 [California law recognizes that a dog may be used as a deadly weapon]; People v. Nealis (1991) 232 Cal.App.3d Supp. 1, 6 [same].) Accordingly, we reject Kose's substantial evidence challenge to his robbery conviction.
III. DENIAL OF NEW TRIAL
A. Additional Background
During a break in trial, just after Detective Sanchez had been cross-examined about the nature of the CVS surveillance video, the parties indicated that Justin wished to enter a change of plea to misdemeanor petty theft. Before the plea, the court had Kose exit the courtroom. The trial court asked the parties for an explanation about why Justin was changing his plea in the middle of trial. Defense counsel explained that there had been thorough negotiations, including a package deal with both defendants. The prosecutor explained that the detective told him in the hallway during trial that he believed it might be a case of mistaken identity with respect to Justin. The prosecutor stated that the People believed Justin was responsible for taking the phone, but admitted that proving Justin's role in the robbery, beyond a reasonable doubt, would have been difficult. The trial court accepted Justin's guilty plea.
Justin provided the following factual basis for his guilty plea: "Took the property of another with the intent to permanently deprive. Mr. Kose was aware of my intent and actions." Justin told the trial court, under oath, that the factual basis was a true statement. Justin was placed on probation for 18 months. After Kose returned to the courtroom following Justin's plea, defense counsel told the trial court that he fully informed Kose about Justin's plea deal, including the factual basis implicating Kose in the crime.
After trial, Kose moved for new trial based on newly discovered evidence. Defense counsel attached a declaration indicating that she attempted to speak to Justin after his plea, but Justin's attorney refused to let her or an investigator speak to him. After the trial, Justin spoke to a defense investigator and said that Kose had no knowledge that Justin was going to take a cell phone, or that he had taken a cell phone. Kose was chased in his car by a male, but he did not know why. It was only after the chase had ended that Justin told Kose that he had taken a cell phone. Kose became upset with Justin and told him what he did was wrong. The trial court denied the motion for new trial, stating that Justin had implicated Kose in entering his plea and that his subsequent statement was "inherently untrustworthy and not worthy of belief." The trial court concluded that a reasonable jury would likely disregard the testimony, thus making it improbable that Kose would obtain a different result.
B. Analysis
Kose asserts the trial court abused its discretion when it denied his new trial motion because the prosecution required Justin to implicate Kose, even though that implication had nothing to do with Justin's guilt or his plea, thus rendering Justin's statement implicating Kose inherently untrustworthy and not worthy of belief. Kose complains that the trial court improperly dismissed Justin's credibility without even listening to him. Kose asserts that had a jury heard Justin's testimony and believed him, this newly discovered evidence would have completely undermined the prosecution's case.
To obtain a new trial based on newly discovered evidence, the moving defendant must show (1) the evidence, and not simply its materiality, is newly discovered; (2) the evidence is not merely cumulative; (3) the defendant in the exercise of reasonable diligence could not have discovered and produced the evidence at trial; (4) the newly discovered evidence is of such strength that a result more favorable to the defendant is probable if the new evidence is admitted on retrial; and (5) these facts are shown by the best evidence of which the case admits. (People v. Howard (2010) 51 Cal.4th 15, 43.) The trial court may also consider the credibility of the evidence in determining " 'whether introduction of the evidence in a new trial would render a different result reasonably probable.' " (People v. Delgado (1993) 5 Cal.4th 312, 329 (Delgado).) The test of whether a different result on retrial is reasonably probable "is not a subjective one whether a particular trier of fact would be persuaded by the new evidence to reach a different conclusion, but rather is an objective one based on all the evidence, old and new, whether any second trier of fact, court or jury, would probably reach a different result." (People v. Huskins (1966) 245 Cal.App.2d 859, 862.) On appeal, we review a trial court's ruling on a motion for a new trial for an abuse of discretion and indulge a strong presumption that the court properly exercised its discretion. (People v. Davis (1995) 10 Cal.4th 463, 524.)
Most of the factors the court would consider on a motion for new trial based on new evidence are undisputed. The evidence was newly discovered, it was not cumulative, Kose could not have obtained it earlier since Justin did not testify, and it was the only direct evidence of the acts it presented. The key issues were whether the evidence was credible and material such as to render a different result probable on retrial. In denying the new trial motion the trial court properly considered the credibility of Justin's testimony when deciding whether the testimony would render a different result on retrial probable. (Delgado, supra, 5 Cal.4th at p. 329.) The court correctly noted that Justin's posttrial statements to Kose's investigator would have conflicted with his statement under oath that Kose knew of his plan to steal the phone. Courts have noted that it is not uncommon for a witness to come forward after trial to attempt to absolve a confederate who has been convicted. (See, e.g., People v. Shoals (1992) 8 Cal.App.4th 475, 488; People v. Gompertz (1951) 103 Cal.App.2d 153, 163.)
Given the strong evidence showing Kose's knowledge and participation in the robbery (ante, pt. I), the trial court reasonably concluded that Justin's posttrial statements were not credible and thus would not render a different result reasonably probable.
Kose asserts the prosecution "coerced" Justin's statement implicating him. The record, however, does not support this contention. Justin's change of plea form indicated that he "took the property of another with the intent to permanently deprive, and [Kose] was aware of my intent & actions." At the hearing on the new trial motion the trial court stated that it had reviewed the change of plea form "that [Justin] was required to state under oath that [Kose] [had] knowledge. . . ." While Justin's statement implicating Kose may have been a requirement of the plea, this does not necessarily indicate that the prosecution coerced Justin to change his plea. Rather, Justin confirmed under oath at the change of plea hearing that he made the decision to change his plea freely and voluntarily and that his statement implicating Kose was a true statement.
The record similarly fails to support Kose's contention that the plea agreement included a condition that Justin would not be required to testify at trial. When Justin changed his plea he stated under oath that he would be pleading guilty to petty theft, that the remaining charges against him would be dismissed, and he would receive 18 months of probation. Justin confirmed that no other promises, assurances or statements were made to him that impacted his decision to change his plea. The trial court then asked the prosecutor, "Okay. No understanding or commitments that [Justin] is going to testify or in any way participate any further in this trial; is that correct?" The prosecutor responded, "That's correct, your Honor."
Because the plea agreement contained no understanding or commitments regarding Justin's further participation in the trial, nothing prevented Kose from calling Justin as a witness at trial. Rather, defense counsel made a tactical decision to not do so knowing that Justin had already stated under oath that Kose knew of Justin's plan to steal the phone. Had defense counsel called Justin to testify he risked Justin testifying consistently with the statement he made in the plea agreement.
In summary, the trial court acted within its discretion in finding that the new evidence lacked credibilit and that it would not have changed the result on retrial.
IV. SENTENCING
Kose contends the trial court abused its discretion when it imposed a consecutive term under section 1170.15, because the record demonstrates the court did not understand that it had the discretion to impose either a consecutive or concurrent term. The People disagree, relying on the general rule "that a trial court is presumed to have been aware of and have followed the applicable law." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) The record supports Kose's argument.
Section 1170.15 provides in part:
"[I]f a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury."

Section 1170.15 does not mandate consecutive sentences. (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479.) Rather, it indicates "that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Ibid.) As the Woodworth court explained, " '[a]bsent an express statutory provision to the contrary, section 669 provides that a trial court shall impose either concurrent or consecutive terms for multiple convictions.' [Citation.] Section 1170.15 does not contain an express provision depriving the trial court of the discretion afforded to it in section 669, such as the one found in section 667.61, subdivision (i)." (Id. at pp. 1479-1480.)
"Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) "Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record." (Id. at pp. 1228-1229.)
Here, as to counts 1, 2 and 3, the probation report stated consecutive sentencing would be appropriate as the crimes involved separate acts of violence or threats of violence and the crime took place at different times and separate places. The report also recommended that the term for count 2 be imposed consecutively under section 1170.15. Citing section 1170.15, the People noted in their sentencing statement that the court " 'shall' " impose the " 'full middle term of imprisonment' " for the dissuading a victim conviction. The People requested that the court impose the middle term of two years, doubled to four for the strike prior, to be run consecutively to count 1.
At the sentencing hearing, the prosecutor reiterated that the court impose the full middle term of two years doubled to four years for the strike prior as to count 2 under section 1170.15. The prosecutor added, "I know that the Court is familiar with that they must be run consecutive." Defense counsel did not correct the prosecutor, nor did he ask the court to exercise its discretion to impose concurrent sentences. The court imposed four years on count 2, stating "On Count 2 the middle term of four years, two years which is doubled to a term of four years, and that will be consecutive pursuant to [section] 1170.15 of the Penal Code."
The record does not support a conclusion that the trial court was aware of its discretion to impose a concurrent sentence. The probation report did not indicate that the court had the discretion to impose a concurrent sentence and the prosecution informed the court that it "must" impose a consecutive sentence. When imposing the consecutive sentence, the court indicated the sentence was "pursuant to [section] 1170.15." The court's statement suggests it believed that section 1170.15 mandated consecutive sentences. Additionally, the court stated no reasons for its sentencing choice. This suggests the court believed it had no choice but to impose a consecutive sentence as argued by the prosecutor. (People v. Coelho (2001) 89 Cal.App.4th 861, 886 ["Where the court has discretion, the imposition of a consecutive, rather than concurrent, term represents a sentencing choice."]; People v. Fernandez (1990) 226 Cal.App.3d 669, 678 ["The most fundamental duty of a sentencing court is to state reasons justifying the sentencing choices it makes."].)
We agree with Kose that, on this record, the only reasonable inference that can be drawn is that the trial court was unaware that section 1170.15 did not mandate a full-term consecutive sentence, but gave it the discretion to impose a concurrent sentence. We therefore remand the matter for the court to exercise its discretionary choices and to state on the record the reasons for its sentencing choices.
DISPOSITION
The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.


NARES, Acting P. J.

WE CONCUR:



HALLER, J.



DATO, J.