P. v. Roel

Filed 10/30/06 P. v. Roel CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Raul Anthony Sahagun, Judge. Affirmed.

So’Hum Law Center of Richard Jay Moller, Richard Jay Moller, under appointment by the Court Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Deputy Attorney General, Richard T. Breen, Deputy Attorney General, for Plaintiff and Respondent.

_____

Defendant and appellant Armando Roel (defendant) appeals his conviction by a jury of shooting at an occupied vehicle (count 1) (Pen. Code, § 246)[1], assault with a firearm (count 2) (§ 245, subd. (a)(2)), and making a criminal threat (count 3) (§ 422).[2] The jury found that defendant personally used a firearm in the commission of all three offenses. (§ 12022.5, subd. (a)(1).) After a bifurcated court trial, the trial court found that defendant had one prior serious felony conviction under the “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced defendant to 14 years in state prison (consisting of the upper term on count 1, doubled as a second strike)[3], and a concurrent, ten-year term on count 2 (calculated as the mid-term of three years, doubled as a second strike, plus four years pursuant to section 12022.5, subdivision (a)(1)). The trial court imposed and stayed, pursuant to section 654, a six-year term on count 3.

Defendant contends his conviction must be reversed because (1) the trial court’s admission into evidence of gang expert testimony denied defendant his due process right to a fair trial and proper notice; (2) the prosecutor improperly argued that defendant’s mother and sister were logical defense witnesses who had not been called to testify without any showing of availability; (3) the trial court committed prejudicial error by admitting testimony by one of the victims that he was attacked and told not to testify; (4) the trial court improperly denied defendant’s motion for a new trial because there was prejudicial testimony suggesting that defendant was involved in another, more serious, crime; and (5) the trial court erred in its sentencing determinations. We conclude that there was no prejudicial error and therefore affirm the judgment.

BACKGROUND

Some time between 8:30 to 9:00 p.m. on June 3, 2001, 23-year-old Jeremy Edwards drove 17-year-old Javier C., his 19-year-old brother Jose C., and Jose’s 3-year-old son to Artesia in Javier’s family’s van. Javier C. intended to pick up his girlfriend, 15-year-old Gloria E., at her home.

When they arrived at Gloria’s house, Javier exited the van and entered the house, while Edwards, Jose, and Jose’s son remained in the van. Defendant, who is Gloria’s brother, was standing outside the house next door with some of his friends. Defendant approached the van and asked Edwards in a loud voice where he was from and if he was with a gang. Edwards responded that he was not part of a gang, that he and defendant did not know each other, and that defendant should “stay calm.” Defendant then directed his attention to Jose, whom he seemed to recognize, and defendant and Jose exchanged some hostile words. After a brief exchange between defendant and Jose, defendant ran into the house and returned with a small silver handgun. Defendant approached the passenger side of the van, pointed the gun at Jose and threatened to shoot him. Jose, Javier and Edwards were all unarmed. Jose stepped out of the van and continued to argue with defendant, who was waving the gun in Jose’s face and pointing it at his chest.

Defendant’s sister and mother attempted to intervene, asking defendant to stop. Jose said, “we have to leave.” Javier entered the back seat of the van, and Jose entered the front passenger seat. While Jose was sitting in the front passenger seat, defendant pointed the gun at Jose’s head and said “I’m going to kill you.” Defendant then used the barrel of the gun to strike Jose on the head near his right temple.

Edwards put the van into gear and started driving away, and defendant turned and fired four to five shots from the handgun at the van. Defendant’s mother and sister were standing next to him while he fired the gun. Edwards could hear the bullets hitting the side of the van. He drove to a nearby gas station to put air into one of the tires, because a bullet had passed through the tire and flattened it. He then drove to the home of Jose and Javier and called the police.

Javier and Gloria stopped seeing each other after the incident. Before the trial commenced, Gloria left Javier a voice mail message telling him not to come to court and said, “I’m not going to tell you something is going to happen to your family or something like that, but you know how my brother is.”

Detective Daren Diviak investigated the shooting and provided expert testimony on gangs. According to Detective Diviak, the area where the shooting occurred was in territory claimed by the “Chivas” gang, defendant was a member of the “Chivas” gang, and his gang moniker was “Cartoon.” Detective Diviak testified that defendant’s street contained gang graffiti and defendant’s gang moniker. Detective Diviak further testified that the phrase “where are you from” is a gang challenge, and that when he interviewed Jeremy Edwards about the incident, Edwards had said that defendant first approached him using words to the effect of “this is Chivas.”

Defendant testified on his own behalf and stated that he was standing outside talking to his friends when the van pulled up. Defendant asked the driver whom he was waiting for, and Jose responded from the back seat, “We’re just here to pick up some bitch.” Defendant found the statement to be insulting to his sister, and he proceeded to exchange words with Jose. When defendant’s mother came outside and told them not to fight, defendant said, “Gloria’s not going to go,” and his mother agreed. Defendant then heard Jose tell Gloria to get into the van. Defendant felt Jose had disrespected his mother, so he punched Jose, who was sitting in the front seat. Defendant denied having a gun, hitting Jose with a gun, or shooting at the van. He said that he heard gunshots and saw another person shoot at the van as it drove away.

Defendant’s neighbors, Alvino Navarro and Sarah Mayorga, testified that they heard three or four gunshots at about 11:00 p.m. on June 3, 2001. They looked outside their windows, saw a van driving away and saw defendant being embraced by his mother. Neither saw a gun in defendant’s hands.

DISCUSSION

A. Gang Evidence

Defendant argues that the trial court committed prejudicial error by admitting expert testimony concerning defendant’s affiliation with a gang in violation of his constitutional rights to due process and a fair trial. Defendant argues that he had no notice of the prosecution’s intent to introduce gang evidence because the information included no gang allegation, and no gang evidence had been introduced in his first trial. Defendant maintains that the incident was not gang-related, but involved a dispute over his younger sister. He claims that evidence of defendant’s gang affiliation had no relevance to the issues in the case and was highly prejudicial. We review defendant’s challenge to the trial court’s evidentiary ruling as to admissibility under the abuse of discretion standard. (People v. Carter (2003) 30 Cal.4th 1166, 1194 [admission of gang evidence reviewed for abuse of discretion].) We review the issue of notice de novo.

Before the trial commenced, defendant objected, pursuant to Evidence Code section 352, to the admission of gang expert testimony, arguing that the evidence was highly prejudicial, that he had no notice or discovery concerning the gang evidence and that the case was not gang-related. Defendant did not raise any constitutional challenge to the evidence. The prosecutor responded that the victims would testify that defendant made gang challenges to them. The trial court ruled that the percipient witnesses could testify as to what they “saw and heard” and deferred ruling on the admissibility of gang expert testimony until after the victims testified.

At trial, Edwards testified that defendant asked him if he was a gang member and where he was from. Edwards responded that he was not a gang member, that he was not from the area, and that he told defendant to “stay calm.” After this testimony, defendant renewed his objection to the prosecution’s gang expert under Evidence Code section 352 and under state and federal due process grounds. He argued that no witness had made any connection between defendant and the “Chivas” gang, and that defendant’s question to Edwards, “Where are you from?” was insufficient to establish that defendant was a gang member. The prosecutor stated that the police reports had indicated that defendant mentioned the “Chivas” gang to the victims and that defendant was known by the gang moniker “Cartoon.” The trial court ruled that gang evidence was relevant to motive but limited the testimony to the meaning of the phrase “Where are you from,” whether the crime occurred in gang territory, and whether defendant was a member of the gang claiming the area. At trial, Detective Diviak testified in accordance with these restrictions.

At defendant’s request, the trial court gave the following limiting instruction to the jury: “Evidence has been introduced to show that the defendant was a gang member at the time of the incident. Such evidence was not introduced to show that the defendant was a bad person or that he has a propensity to commit criminal acts. It was introduced for the limited purpose of explaining his conduct in the charged incident.”

The record discloses no abuse of discretion. Gang evidence is admissible if relevant to prove motive, knowledge, or intent, so long as its probative value is not outweighed by its prejudicial effect. (People v. Champion (1995) 9 Cal.4th 879, 922-923, overruled on another ground in People v. Combs (2004) 34 Cal.4th 821, 860; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [gang evidence admissible to prove intent and motive]; People v. Funes (1994) 23 Cal.App.4th 1506, 1516-1519.) The evidence showed that defendant approached the victims while issuing a gang challenge, and asked one of the victims whether he was part of a gang. Testimony concerning defendant’s gang affiliation was therefore relevant and admissible to prove motive in support of the prosecution’s theory. (People v. Beyea (1974) 38 Cal.App.3d 176, 194-195.) That defendant disputes that his motive for doing so was gang-related, and claims that he was simply acting as a protective “father figure” for a younger sister, does not render the evidence irrelevant.

Moreover, the evidence was not unduly prejudicial. Detective Diviak’s testimony was limited to the meaning of the term, “where are you from,” whether the crime occurred in an area known for gang activity, and whether defendant was a member of a gang that claimed that area. The testimony was not admitted for the purpose of proving an undisclosed gang enhancement allegation, and defendant was adequately apprised of the charges against him. Defendant’s statement related to gangs had already been admitted in evidence. The jury was instructed that the testimony should be considered for the limited purpose of explaining defendant’s conduct, and we must presume that the jury understood and followed this instruction. (People v. Callahan (1999) 74 Cal.App.4th 356, 372.) Accordingly, admission of the evidence was not erroneous. If it were, the error would be harmless beyond a reasonable doubt. (Chapman v. California (1966) 386 U.S. 18.) There was overwhelming evidence that defendant committed the crime.[4]

Defendant was not deprived of discovery of the evidence concerning his gang affiliation. Documents disclosed to defendant before the trial included police reports that mentioned defendant’s gang related statements, defendant’s gang affiliation, and photographs showing defendant’s gang moniker among graffiti in the area. Thus, defendant was on notice of gang-related evidence, even if he did not have notice of Detective Diviak’s testimony. There was no violation of the right to notice of charges. Defendant was not charged with a gang enhancement violation. Accordingly, the admission of testimony concerning defendant’s gang affiliation was not an abuse of discretion.

B. Prosecutor’s Argument Concerning Witness Availability

During closing argument, the prosecutor commented on defendant’s failure to call his mother and sister as defense witnesses without evidence of their availability and argued that he did not believe defendant’s statement that his mother was unavailable because she was dying of cancer. Defendant claims that the trial court violated his due process right to a fair trial by allowing the prosecutor to make this argument. Defendant failed to object to the prosecutor’s statement on due process grounds below and therefore forfeited the right to challenge the statement on that basis in this appeal. (Evid. Code, § 353; People v. Zapien (1993) 4 Cal.4th 929, 979-980.) With regard to the merits, defendant refers to People v. Stankewitz (1990) 51 Cal.3d 72. In that case the court suggested it was not proper “to state as a fact that a codefendant is available as a witness when there is no evidence to substantiate the statement.” (Id. at p. 102.) Moreover, in that case, there was the suggestion that the witnesses did not want to testify against the defendant. Here, the prosecutor did not argue that the witnesses were in fact available. He argued that the defendant’s reasons for the witnesses not testifying were improbable. And he did not suggest a motive for them not testifying. People v. Stankewitz is thus distinguishable from this case.

C. Evidence That Victim Was Attacked and Told Not to Testify

Defendant contends the trial court committed prejudicial error by admitting testimony from one of the victims that the victim had been attacked by defendant’s friends. At trial, defendant did not object when the prosecutor asked Javier whether he was nervous about testifying and whether he had told Detective Diviak that he had been “jumped” or beaten up over the incident that occurred with defendant. Javier responded affirmatively. During cross-examination, defendant’s trial counsel asked Javier whether defendant had attacked him, and Javier responded that the assailant was one of defendant’s friends. Defendant’s trial counsel moved for a mistrial on the basis of this testimony. In response, the trial court noted that Javier’s demeanor during his testimony was unusual, in that his speech was stilted, his answers were not completely forthright or responsive, and he appeared evasive. The court ruled that in light of this unusual demeanor, the prosecutor’s questions as to whether Javier was scared, or whether he had been beaten up, were legitimate areas of inquiry in order to explain his behavior. The court also noted that defendant’s counsel himself had elicited the testimony about whether defendant or his friends had been involved in the attack.

Javier’s testimony about the attack was relevant to his credibility and was therefore admissible for that purpose. (People v. Burgener (2003) 29 Cal.4th 833, 869.) The jury was further instructed that Javier’s statements about the attack were to be considered solely for the purpose of evaluating his testimony. People v. Hannon (1977) 19 Cal.3d 588, and People v. Weiss (1958) 50 Cal.2d 535, on which defendant relies, are inapposite. Those cases concerned the admission of third party threats attributed to the defendant without sufficient evidence of any connection to the defendant. The testimony at issue here was admitted for the sole purpose of evaluating a witness’s credibility, and the jury was instructed accordingly. Under these circumstances, no prejudicial error occurred.

D. Evidence Concerning Investigation of Another Crime

Defendant contends the trial court’s denial of his motion for a mistrial on the ground that testimony by Detective Diviak suggested that defendant was involved in another, more serious, crime denied defendant his due process right to a fair trial.

We review the trial court’s denial of defendant’s motion for mistrial under the abuse of discretion standard. (People v. Bolden (2002) 29 Cal.4th 515, 555.)

During redirect examination, the prosecutor asked Detective Diviak whether the pace and timing of his investigation of the instant case was “affected by the existence of another investigation” that involved a greater “loss to the community.” Defendant’s counsel objected on relevance grounds, and the trial court ordered a side-bar discussion of the matter. During the sidebar proceeding, the prosecutor explained that the testimony was being elicited to rebut defendant’s suggestion that police investigation of this case had been unduly slow. The prosecutor also disclosed out of the presence of the jury that defendant had been a suspect in a separate murder case when the instant case was being investigated. Defendant moved for a mistrial.

In opposing defendant’s motion, the prosecutor argued that he could elicit testimony from Detective Diviak that would make clear that the overlapping investigation did not involve defendant but concerned a wholly separate incident involving another person named Daniel B. The trial court denied defendant’s motion for a mistrial on that basis, and Detective Diviak subsequently testified as follows: “[Prosecutor]: Detective, just to be clear about what we’ll refer to as an overlapping investigation, it was on going at the same time; that is, another investigation that did not involve the defendant. It involved a separate incident in which another person -- that another person was believed to have committed, that person being Daniel B.[], at a separate place, at a separate time from our incident; is that correct? [Detective Diviak]: Yes. [Prosecutor]: All right. Nevertheless, because of that investigation of that separate incident and Daniel B.[], did your Department inform you that you had -- strike that. The incident involved some identical witnesses; is that correct? [Detective Diviak]: Yes. [Prosecutor]: And because of that, your Department asked you to delay your contacting the witnesses at the defendant’s house until June 21st? [Detective Diviak]: That’s correct.”

The jury was also given the following limiting instruction: “Evidence has been introduced that members of the Los Angeles County Sheriffs Department were investigating another incident when they were at the defendant’s residence on June 21, 2001 and July 4, 2001. Evidence has also been introduced that the defendant was not a suspect in that investigation and that the officers were merely conducting an investigation into another incident which did not involve Mr. Roel. You are not to make any inference from such evidence that the defendant had done anything wrong or that the officers were searching for him.” The jury was further instructed that when evidence was introduced for a limited purpose, they were not to consider that evidence for any other purpose.

The record discloses no prejudicial error. Detective Diviak’s responses to the prosecutor’s questions made clear that at the time he was investigating this case, the police were conducting a simultaneous investigation of another incident that did not involve defendant, but another person named Daniel B. No suggestion was made to the jury that defendant was involved in another, more serious crime. The trial court’s denial of defendant’s motion for a mistrial was not an abuse of discretion. (People v. Bolden, supra, 29 Cal.4th at p. 555.)

E. Alleged Sentencing Errors

Defendant contends the trial court violated section 654 by improperly sentencing him under section 246, for shooting at an occupied vehicle, rather than under section 245, subdivision (a)(2), for assault with a firearm. Defendant further contends that principles of, or akin to, double jeopardy precluded the trial court from imposing a greater sentence than defendant received at his first trial. Finally, defendant claims that under Blakely v. Washington (2004) 542 U.S. 296, the trial court’s imposition of an upper term sentence based on facts that were neither found by the jury nor admitted by him violated his Sixth Amendment right to a jury trial.

1. Section 654

Defendant argues that section 654 required the trial court to sentence him for count 2 (assault with a firearm) and to impose and stay the sentence on count 1 (shooting at an occupied vehicle). Section 654 provides in 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

Under section 654, “[a] course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment.” (People v. Martin (2005) 133 Cal.App.4th 776, 781.) “‘If all the offense were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] If, on the other hand, ‘the [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. . . . Whether multiple convictions are part of an indivisible transaction is primarily a question of fact.” (Ibid.) We review such a finding under the substantial evidence standard, viewing the evidence in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Holly (1976) 62 Cal.App.3d 797, 803.)

Substantial evidence supports the trial court’s determination that defendant’s convictions for shooting at an occupied vehicle and assault with a firearm were independent violations predicated upon wholly separate acts with separate criminal objectives. The facts adduced at trial showed that defendant committed an assault (count 1) upon Jose C. by putting a gun to his head, that he threatened to kill Jose C. (count 2, criminal threats), and that he subsequently discharged a firearm at the van occupied by Edwards, Jose C. and Javier C., and Jose’s young son (count 1, shooting at an occupied vehicle). Defendant’s assault on Jose C. was directed at him and intended to provoke or intimidate him and was a wholly separate act from defendant’s firing on the van while the victims fled the scene. Moreover, there is a “multiple victim“ exception to section 654 that applies here. Under the multiple victim exception, “even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim.” ( People v. Ramos (1982) 30 Cal.3d 553, 587, revd. on other grounds in California v. Ramos (1983) 463 U.S. 992.) “The reason for the multiple victim exception is that ‘when a defendant “‘commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,’ his greater culpability precludes application of section 654.”’ [Citations.]” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) Courts in a number of cases have upheld multiple sentences for convictions for shooting at an occupied motor vehicle and for the resulting assault on one or more of the occupants. (See, e.g., People v. Kane (1985) 165 Cal.App.3d 480; People v. Masters (1987) 195 Cal.App.3d 1124; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1736-1737; In re Sergio R. (1991) 228 Cal.App.3d 588, 598.)

People v. Kramer (2002) 29 Cal.4th 720, on which defendant relies, is inapposite. In that case, the “[d]efendant fired a gun at a moving car containing two occupants. For this act, a jury convicted him both of discharging a firearm at an occupied vehicle (§ 246) and assault with a firearm (§ 245, subd. (a)(2)). As to the assault charge only, the jury also found true a sentence-enhancing allegation that [the] defendant personally used a firearm. (§ 12022.5, subd. (a).)” (Id. at p. 722.) The issue before the California Supreme Court was whether section 654 required the trial court to sentence the defendant on the assault with a firearm count, rather than the discharging a firearm at an occupied vehicle count, and whether the trial court had to consider the firearm enhancement allegation when determining which count resulted in the potentially longest sentence. (Id. at p. 723.) The Supreme Court concluded that section 654 required the trial court to sentence the defendant on the assault count, which combined with the firearm enhancement, resulted in the longest potential term of imprisonment. (Id. at pp. 723-725.) Here, in contrast, defendant committed the two wholly separate acts of assaulting Jose by pointing a gun at his head and thereafter shooting at the occupied van while the victims were fleeing. Accordingly, section 654 did not preclude the trial court from sentencing defendant for both of these wholly separate and independent offenses.

2. Double Jeopardy

Defendant claims that the trial court erred by imposing a greater sentence than the 10-year sentence he received in his first trial.[5] Citing People v. Henderson (1963) 60 Cal.2d 482, 495-497 (Henderson), defendant argues that after reversal on appeal and conviction at a retrial, principles of double jeopardy preclude a court from imposing a greater sentence than that imposed at the first trial. Principles of double jeopardy do not apply here. As defendant’s trial counsel conceded at the sentencing hearing, defendant was not convicted of count 1 (shooting at an occupied vehicle) at the conclusion of his first trial because the jury had been unable to reach a verdict as to that count. Defendant accordingly was not sentenced in the first trial for that offense. The jury in this case did reach a verdict and convicted defendant of shooting at an occupied vehicle.

Henderson, supra, 60 Cal.2d 482 is inapposite. In that case, the California Supreme Court held that double jeopardy barred the imposition of a death sentence on a defendant who was convicted of murder after a retrial following the successful appeal by the defendant of his murder conviction and sentence to life imprisonment. Here, unlike Henderson, defendant was not convicted in his first trial of the same crime for which he was convicted and sentenced in this case. Double jeopardy does not attach when the jury is unable to reach a verdict on a given offense, and a defendant may be retried, convicted, and sentenced for that offense. (See Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 108-109 [no double jeopardy in retrial resulting in death penalty, when at original trial, defendant was sentenced to life imprisonment after jury deadlocked on death penalty].) In this case, defendant was convicted of, and sentenced for, shooting at an occupied vehicle, an offense with respect to which the jury deadlocked in the previous trial. The sentence imposed for defendant’s conviction under section 246 did not violate principles of double jeopardy. Defendant concedes that his argument “is not strictly a double jeopardy argument,” but still insists that the trial court could not sentence defendant to more than received at the first trial. There is no authority to support that proposition in the circumstances present here.

3. Upper Term Sentence

Defendant contends that, under Blakely v. Washington (2004) 542 U.S. 296, the imposition of the upper term sentence for one of his convictions, based on facts not found by the jury, violated his Sixth and Fourteenth Amendment rights to a jury trial and due process. This contention is without merit in view of existing law[6]. In People v. Black (2005) 35 Cal.4th 1238, our Supreme Court held that Blakely v. Washington does not invalidate upper term sentences under California’s determinate sentencing scheme. (People v. Black, supra, 35 Cal.4th at p. 1244; People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) The issue is presently before the United States Supreme Court in Cunningham v. California (No. 05-6551, cert. Granted, February 21, 2006, __ U.S. __, 126 S.Ct. 1329. We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Hill, supra, 131 Cal.App.4th at p. 1103.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

[1] All further statutory references are to the Penal Code, unless otherwise stated.

[2] Defendant’s convictions were pursuant to a retrial, after he successfully appealed his previous convictions of assault with a deadly weapon (§ 245, subd. (a)(1)) and criminal threats (§ 422). The jury in the previous case deadlocked on the shooting at an occupied vehicle charge (§ 246). We reversed defendant’s convictions and the 10-year sentence imposed following his previous trial in People v. Roel, No. B167673, November 29, 2004.

[3] The trial court struck the firearm enhancement allegation under section 12022.5, subdivision (a), as to count one only.

[4] We do not find any constitutional error in admitting the evidence.

[5] As discussed, defendant’s convictions and the ten-year sentence imposed in his previous trial were reversed in People v. Roel, No. B167673, November 29, 2004.

[6] Although the prosecutor referred to Blakely v. Washington, supra, 542 U.S. 296, defendant did not object to there being no jury trial for the sentencing. Thus, there would be a forfeiture of the issue. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103.)