P. v. McNeally

Filed 9/13/07 P. v. McNeally CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Dion McNeally appeals from his conviction, after a jury trial, of three counts of second degree robbery (Pen. Code,  212.5, subd. (c)).^[1] He challenges the conviction on count 3, arguing that the trial court failed to respond adequately to two of the jurys questions during deliberations. Appellant additionally contends the trial court erred in imposing the upper term sentence. We reject these contentions and affirm the judgment.

Background

In the early morning hours of May 30, 2005, a series of three robberies took place, leading to the arrest of appellant. The events are set forth in turn, as described during trial.

Robbery of Ridgeway Chow - Count 1

Ridgeway Chow is a maintenance worker for the Sheraton Hotel at Fishermans Wharf in San Francisco. On May 30, 2005, at approximately 3:00 a.m., Chow was walking around the exterior of the hotel when he observed a red car with a loud muffler near the corner. He noticed the car make a U-turn, but he turned around and began walking back in the other direction. He then heard someone say Hey, and when he turned around, a male told Chow he had a gun and demanded Chows money. Chow handed over his money and the robber turned and ran. Chow saw the red car with the loud muffler driving away. Chow contacted security, and then called the police and gave a description. Approximately 45 minutes after the robbery took place, the police brought Chow to a location where they had stopped a suspect vehicle, and Chow identified appellant as the robber. At trial, Chow again identified appellant as the person who robbed him, and recognized photographs of the car and the gun.

Robbery of Ross OToole - Count 2

Ross OToole was walking home from a club around 3:15 a.m. on May 30, 2005. As he approached the intersection of Taylor Street and Lombard Street, he noticed a red car pull around the corner and stop in the middle of the street. OToole suspected he was going to be robbed, and he took out his wallet. A male stepped out of the car holding a gun, and OToole handed over his wallet. The male grabbed the wallet, returned to the car, and the car drove away. OToole called the police and reported the incident. Approximately one hour after the robbery, the police brought OToole to an impromptu lineup. At the lineup, OToole was shown each suspect, and identified appellant as more likely the guy. At trial, OToole recognized a photograph of the car and the gun used during the robbery.

Robbery of Steven Lim - Count 3

On May 30, 2005, at approximately 3:30 a.m., Steven Lim was delivering newspapers for the San Francisco Chronicle in the Marina district. He heard a car drive by that was very noisy, turned and saw it was a red car. Lim entered a building and was waiting for the elevator when he noticed a young Black male enter the building behind him. The male pulled out a gun, Lim pulled out his only $3, and the male took the $3 and left. Lim did not immediately call the police, but about 10 minutes later he noticed a group of officers and a stopped vehicle, and Lim informed one of officers he had been robbed and recognized this vehicle. The officers showed Lim three of the suspects from the vehicle, and Lim identified one of the suspects, but not appellant, as the male that robbed him. Lim stated he was 70 percent sure about this identification. At trial, Lim testified he was 90 percent sure appellant was the suspect he identified as being the robber. Lim verified that a photograph shown to him accurately depicted the car he saw the night of the robbery, and he identified the gun that was used.

The Arrest and Conviction of Appellant

On May 30, 2005, at approximately 3:00 a.m., San Francisco Police Officer Barcojo was on duty, assisting in a drunk driving arrest and waiting for a tow truck to arrive to pick up a vehicle that had crashed into a pole. As he waited, Barcojos attention was drawn to a red car driving down the street with a loud muffler. Approximately 15 minutes later, he heard a radio dispatch containing a description of robbery suspects and a vehicle, and the vehicle description seemed to match the car he had noticed previously. Barcojo heard another dispatch regarding a second robbery after approximately another 15 minutes, and when the drunk driving scene was clear, Barcojo drove in the direction of the robberies. Barcojo encountered the suspect vehicle and followed it for several blocks before the car pulled into a driveway. Barcojo activated his overhead lights and the occupants were ordered from the car. Appellant was seated in the front passenger seat, and was the first person to exit the car. Three additional people exited the car, and officers recovered credit cards, United States currency, and a loaded revolver from the car. Appellant and the other male in the car, a juvenile, were arrested.

On August 31, 2005, appellant was charged with three counts of second degree robbery ( 212.5, subd. (c)). The information alleged with respect to counts 1 and 2 that appellant personally used a firearm ( 12022.53, subd. (b)), and with respect to count 3, that a principal was armed during the commission of the robbery ( 12022, subd. (a)(1)) and that appellant furnished a firearm to another ( 12022.4).

On March 28, 2006, the jury found appellant guilty on all counts and found true the firearm use allegation in count 1, and that a principal was armed with a firearm in count 3. On June 2, 2006, the court sentenced appellant to the upper term of five years in state prison for count 1 and the upper term of five years for counts 2 and 3, to be served concurrently with the sentence for count 1. The court also imposed a consecutive sentence of 10 years for the enhancement for personal use of a firearm. The court imposed a one-year sentence for the enhancement for a principals use of a firearm, to be served concurrently. In total, appellant was sentenced to 15 years in state prison. This appeal followed.

Discussion

On appeal, appellant first challenges his count 3 conviction, arguing the trial court failed to properly answer the jurys questions regarding aider and abettor liability. Second, appellant challenges the imposition of the upper term sentence, arguing the trial court relied on improper aggravating factors.

I. The Trial Courts Answers to the Jurys Questions

Approximately two hours into juror deliberations, the jury submitted a jury request form containing three questions. The questions and the answers given by the court were: (1) Does solely being a passenger in the car constitute aiding and abetting? Answer: Please refer to Calcrim [No.] 401 of your Instructions. In particular, the last two paragraphs on the first of two pages.^[2] (2) If the aiding (passing of the gun for example) occurred between the first and second crimes, does this still constitute aiding the third robbery? Answer: It depends on your finding of facts. (3) If we find that the defendant aided and abetted but did not personally commit the robbery, would he still be guilty of the crime? (Counts [1] and [2].) Answer: Yes. The court and counsel conferred regarding the responses to the request, both counsel stipulated to the courts proposed responses, and the responses were transmitted to the jury.^[3]

For the first time on appeal, appellant contends the courts answers to questions Nos. 1 and 2 were inadequate, both individually and in combination, and this led to juror confusion and an improper conviction on count 3. Specifically, appellant now contends the courts answer to question No. 2 was so abstract as to be meaningless and he proposes that the court should have answered question No. 2 in such a way as to better help the jurors apply the definition of aiding and abetting to the specific factual scenario set forth in the question. He further contends that the answer to question No. 1 should have been a simple No. He assumes the answers were legally accurate, but argues the court should have done more to clear up the jurors confusion.

We find appellant has waived this claim. In People v. Medina (1990) 51 Cal.3d 870, during jury deliberations regarding the defendants sanity, the jury requested clarification as to the definition of insanity, and the trial court reread the appropriate instructions. The jury then asked a follow-up question regarding mental illness, and after consulting with counsel, and with counsels approval, the court informed the jury that they should decide the matter on the basis of the evidence in the case. (Id. at p. 900.) On appeal, the defendant complained that the courts response was inadequate and the court should have provided a more specific explanation. (Id. at p. 901.) The court found that the trial courts response could have been more explicit, but the defendant was not prejudiced, and the court added, defense counsels approval of the courts limited response to the jurys inquiry should bar [the] defendant from contending on appeal that a more elaborate response should have been made. If [the] defendant desired such a response, he should have proposed it. [Citations.] (Id. at pp. 901-902.) More recently, in People v. Marks (2003) 31 Cal.4th 197, during the penalty phase deliberations, the jury passed a note to the court regarding its obligation to select the death penalty assuming it made a particular finding. The court answered by reading an excerpt from the jury instructions, and, on appeal, the defendant asserted that this reading violated certain constitutional rights and that the trial court failed to correctly answer the jury and should have instead given a shorter answer: No.  (Id. at pp. 236-237.) The California Supreme Court stated, The instruction is a correct statement of law, however, and if [the] defendant favored further clarification, he needed to request it. His failure to do so waives this claim. [Citations.] (Id. at p. 237.)

Here, as the record demonstrates, the court and counsel discussed the responses to the jurys questions, and the record shows that both parties stipulated to the answers given. Defense counsel noted an objection on the record to the answer to question No. 3, but this answer is not challenged on appeal. Appellant claims that answers to questions No. 1 and 2, although technically correct, could have been clearer. Appellants claim should have been raised at the trial court in the first instance, when the responses could have been clarified, and we refuse to entertain such claim for the first time on appeal.

II. Imposition of the Upper Term Sentence

On June 2, 2006, the trial court sentenced appellant to the upper term of five years for each robbery count, to be served concurrently. At the sentencing hearing, the court stated that it considered the circumstances in mitigation as offered by defense counsel,^[4]as well as three aggravating facts: the victims were particularly vulnerable because they were alone on the street in the early morning hours with no possibility of getting help at the time of the incident, pursuant to California Rules of Court, rule 4.421(a)(3); appellant was armed with or used a weapon at the time of the commission of the crime, pursuant to rule 4.421(a)(2); and appellant was on parole from the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (formerly the California Youth Authority) when the crimes were committed, pursuant to rule 4.421(b)(4). The court concluded, [B]ased on these circumstances in aggravation, they outweigh the circumstances in mitigation, and the court is imposing the upper term of imprisonment.

On appeal, appellant claims the court relied improperly on the first two of these aggravating factors.^[5] Appellant argues the court improperly relied on the vulnerability of the victims, in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Appellant also contends the court violated the dual use rule by relying on appellants use of the gun as an aggravating factor, because the use of the gun was already the subject of the enhancement, on which appellant received a 10-year sentence. Appellant asserts that defense counsels failure to challenge the dual use of this factor constituted ineffective assistance of counsel.

Cunningham

In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court interpreted the Sixth Amendment to the United States Constitution to require that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington(2004) 542 U.S. 296, 301-305.) In Cunningham, the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 860] overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) 549 U.S. ___ [127 S.Ct. 1210].) Finally, in People v. Black (2007) 41 Cal.4th 799, 813 (Black II), our Supreme Court held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to a jury trial.

Here, the recidivism exception expressly recognized in Cunningham applies: [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Cunningham, supra, 127 S.Ct. at p. 860, italics added.) Moreover, the recidivism exception has been broadly defined by our Supreme Court to go beyond the mere fact of a prior conviction to include matters such as the sentence imposed and the timing of a defendants incarceration in relation to subsequent offenses. (Black II, supra, 41 Cal.4th at pp. 813-814; see People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.)

One of the aggravating factors relied upon by the trial court was that appellant was on parole at the time of the commission of the offenses in this case. Appellant does not challenge the factual accuracy of this conclusion. Moreover, appellant is not entitled to a jury finding on this recidivist factor; the trial court may properly decide it. (Black II, supra, 41 Cal.4th at pp. 813-814, 819 & fn. 8.) The determination that such a factor is true requires no more than a comparison of the length of parole imposed in a prior case and the date of the current offense. As Black II held in analogous circumstances, This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (Black II, at p. 820.) Because this factor was properly relied upon by the trial court, no Blakely/Cunningham error occurred.

Dual Use

Next, appellant concedes that his use of a gun in the commission of the crime was found by the jury beyond a reasonable doubt in the enhancement to count 1. But appellant contends the use of this fact for both a sentence enhancement and an aggravating factor violates the dual use rule. Even assuming that appellant is correct that the trial court impermissibly relied on this factor to impose the upper term, we would uphold the sentence imposed, because no prejudice resulted.  Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if [i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error. [Citation.] Only a single aggravating factor is required to impose the upper term [citation], . . . [citation]. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Independent of the use of the gun, the court relied upon the vulnerability of the victims and appellants parole status to impose the upper term. On the record here, we find no reasonable probability that the court would have imposed a lesser sentence had it been aware that the it could not rely on the use of the gun. Resentencing is unnecessary.

Disposition

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

GEMELLO, J.

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(A114360)

^[1] All undesignated section references are to the Penal Code.

^[2] The last two full paragraphs contained on page 1 of the copy of Calcrim No. 401 provided to the jury state: If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor.

^[3] This reflects the events as stated in the clerks minutes. The reporters transcript similarly reflects that, outside the presence of the jury, the court restated the jurys questions and stated, [P]ursuant to stipulation, were giving the jury the following answers . . . . The court then asked counsel to confirm they so agreed, and defense counsel stated, [I]f I may just for the record, we did discuss this in chambers. I would ask the court to note my objection to the courts answer to No. 3 . . . . After discussing the elaboration defense counsel wanted in answer to question No. 3, defense counsel stated, Yes, I will submit. On appeal, appellant concedes that question No. 3 and its answer are not relevant to his appeal.

^[4] At the hearing, defense counsel asked the court to consider the lower term based on [appellants] age and his personal life[] experiences, including that his father was shot and killed when appellant was two years old, appellants mother abandoned him, appellant had been in juvenile hall between the ages of 13 and 18, for a crime committed at age 13, and in the short time between his release from juvenile hall and the robberies in question, appellant was able to find gainful employment.

^[5] Appellant concedes any error resulting from the courts reliance on the fact that he was on parole at the time of the crime was harmless.