People v. Sheridan CA4/2 ( 2014 )

Filed 1/31/14 P. v. Sheridan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058584
v. (Super.Ct.No. FSB1205375)
KRISTOPHER DOMINIQUE OPINION
SHERIDAN,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno
and William Jefferson Powell, IV, Judges. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Respondent.
A jury convicted defendant Kristopher Dominque Sheridan of robbery (count 1 –
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Pen. Code, § 211)1 and possession of a firearm by a felon (count 4 – § 29800, subd. (a)).2
The jury additionally found true allegations defendant was personally armed with a
handgun in his commission of the count 1 offense (§ 12022.53, subd. (b)) and had
suffered two prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an
aggregate, determinate term of 17 years’ imprisonment consisting of the following: the
upper term of five years on the count 1 offense, a consecutive 10 years on the personal-
use enhancement, and consecutive one year terms on each of the two prior prison terms.
After defendant’s trial counsel filed the notice of appeal, this court appointed
counsel to represent defendant. Counsel has filed a brief under the authority of People v.
Wende (1979) 25 Cal. 3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S. Ct.
1396, 18 L. Ed. 2d 493], setting forth a statement of the case, a brief statement of the facts,
and identifying six potentially arguable issues: 1) whether the trial court violated
defendant’s due process right to a fair trial in requiring the defendant to be shackled
during the first day of trial; 2) whether the prosecution committed prejudicial, burden-
shifting misconduct by arguing there was no evidence defendant was shot in the back; 3)
whether the court prejudicially erred by overruling defendant’s objection to the People’s
ostensible misconduct; 4) whether the court abused its discretion by imposing the upper
term on count 1; 5) whether substantial evidence supported the jury’s true finding
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The jury acquitted defendant of the count 3 charge of assault with a firearm
upon a peace officer (§ 245, subd. (d)(1)). The jury deadlocked on the count 2 charge of
robbery (§ 211); the court dismissed the charge upon the People’s motion.
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defendant had served two, separate prior prison terms for which he failed to remain free
from custody for five years; and 6) whether the court erred in finding a vehicle was used
in the commission of defendant’s offenses and, thereby, revoking his driver’s license.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
On December 4, 2012, Ana Godinez was working as the cashier at Pronto Pizza in
the City of San Bernardino. Defendant, wearing a sweater with a hood, sunglasses, and a
bandana, jumped over the counter; walked over to her; grabbed her shoulder; pulled her
toward the cash registers while guiding her with a black, semiautomatic handgun; told her
to open the register; and pointed the gun at her. She opened the register and helped
defendant remove its contents, which she placed in a brown plastic bag defendant gave
her. Defendant then told her to open another register; Godinez informed him there was
no money in the other register; defendant ran off.
Jennifer Sanchez, who was in the back making pizzas, witnessed the robbery. She
was less than five feet from defendant during the robbery. Soledad Sandoval, who was
also working in the back, likewise witnessed the robbery. Sandoval went inside the
office to look for the alarm, but could not find it.
Gerardo Pena Chavez, the store manager, also observed the robbery. Chavez
pressed the panic button, ran outside, and called the police. While Chavez was on the
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phone, he saw a police officer on the street corner and ran to inform him of the robbery.3
James Beach, a patrol sergeant with the San Bernardino Police Department, was
on patrol that evening with his partner, reserve officer Mike Eby. Eby told Beach they
were being flagged down. Two women pointed at the fleeing man. Beach and Eby
noticed a man, whom they later identified as defendant, wearing dark clothing with a
hoodie running away from Pronto Pizza with a gun in his hand. Beach chased after
defendant in his vehicle; he pulled alongside defendant as defendant ran. Beach pointed
his gun at defendant and yelled repeatedly through the open window of the patrol vehicle
for defendant to drop the gun.
Eventually, Beach cut off defendant with his patrol vehicle; defendant started to
jump over a rod iron fence. While going over the fence, the black, semiautomatic pistol
held by defendant was pointed towards Beach; Beach thought defendant was going to
shoot him. Beach fired his gun at defendant six times. Defendant fell over the side of the
fence; a bag dropped out of his waist.
Eby exited his vehicle and kicked defendant’s gun away from defendant’s hands.
Beach exited the patrol vehicle and assisted other officers who arrived on the scene to
arrest defendant.
San Bernardino Police Officer Joshua Cogswell, who assisted in the arrest of
defendant, followed the ambulance which took defendant to the hospital. At the hospital,
3 During trial, the People played a recording of the 911 call to the jury. During
the extremely brief exchange with the 911 operator, Chavez noted “I think that the cops
already got [him] . . . .”
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he observed two gunshot wounds to defendant’s left hand and bandaged injuries to
defendant’s thigh. To Cogswell’s knowledge, defendant sustained no injuries to his back.
San Bernardino Police Detective Brian Leis was assigned to assist in the
investigation of the robbery. He executed a search of a vehicle found at the scene. Inside
the vehicle he found a Metro PCS phone contract in defendant’s name. Soledad testified
more than $700 in cash was missing from the register. She could not reconcile the credit
card purchases made on the register.
Detective Marco Granado of the San Bernardino Police Department was called in
to assist with the investigation of the officer-involved shooting. At the scene, he found
six spent nine-millimeter shell casings which were fired from Sergeant Beach’s weapon.
Granado located a Bersa, .380-caliber semiautomatic firearm which had six rounds in the
magazine, but no chambered round. A bag containing $719.25 in cash and credit card
receipts from Pronto Pizza was also found. A black hooded sweatshirt, black sunglasses,
and gloves were additionally discovered.4
Pronto Pizza had 13 to 14 surveillance cameras covering both the inside and
outside of the building. During trial, the prosecutor played video of at least eight separate
camera angles from the surveillance to the jury, showing both the robbery and
defendant’s flight from the building.
4 Granado testified there was another vehicle on the scene with a person located
therein. He did not speak with the individual.
5
On March 4, 2013, Paul Larson, a deputy sheriff with the San Bernardino Sheriff’s
Department, rolled eight of defendant’s fingerprints on a card.5 On March 5, 2013, Cathi
Ringstad, a fingerprint examiner for the San Bernardino Sheriff’s Department, compared
the fingerprints on the card rolled by Larson with those contained in two section 969(b)
packets; the prints matched. Supervising San Bernardino Deputy District Attorney
Michael Dowd testified that, as reflected in one section 969(b) packet, defendant had
been convicted on April 30, 2004, of bringing or sending contraband onto the grounds of
a Youth Authority Institution (Welf. & Inst. Code, § 1001.5). The court sentenced
defendant to prison for 16 months. Defendant was released on parole on August 17,
2005.6
San Bernardino Deputy District Attorney Jason Anderson testified he prosecuted a
case in which defendant was convicted in July 2011, of felony possession of a firearm by
a drug addict previously convicted of a felony (former § 12021, subd. (a)(1)), for which
he had been sentenced to three years’ incarceration. Dowd also testified another section
969(b) packet reflected defendant had been convicted of felony possession of a firearm
by a drug addict previously convicted of a felony (former § 12021, subd. (a)(1)) on July
5 He was unable to print two of defendant’s fingers due a cast worn by defendant.
The Department of Corrections’ history for defendant’s imprisonment for the
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offense reflects defendant subsequently violated parole and was returned to prison on
September 15, 2008. He was then paroled once again on May 26, 2009.
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19, 2011, and was sentenced to three years’ incarceration on July 20, 2011.7 He testified
defendant was discharged on parole on June 12, 2012.
Prior to voir dire, the court stated it had been informed defendant had refused to
dress for trial. Defendant refused to respond to questions from the court regarding
defendant’s disinclination to dress for trial. The court noted, “It’s also my understanding
. . . that [defendant] has elected not to have his waist chains and ankle shackles removed.
He asked that the deputy not remove them.” The court stated “he is welcome to change
into his clothes should he make that decision. Otherwise, we will proceed to trial with
him in the orange jumpsuit provided by the county. If at any time he elects to change his
mind we can allow him to make that change, but that will be on a daily basis. [¶] I
would admonish the jury that the fact that [defendant] is in custody is not to be
considered by them for any purpose.”
The court gave defendant an opportunity to leave and discuss changing clothing
with his counsel; defendant returned still in his orange jail jumpsuit. Defendant again
refused to respond to queries from the court regarding his dress.
The court asked defendant, “you’ve also indicated to the bailiff that you did not
want your waist chains removed. Would you like those waist chains removed, sir?”
Defendant offered no response. The court then noted, “At the request of [defense
counsel] the handcuff on [defendant’s] right hand was removed to allow him to take
notes. [Defendant], should you elect to change your mind regarding changing into street
7 The abstract of judgment reflects the offense was committed in 2010.
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clothes or having the waist chain removed, just advise the court, and we can make
appropriate accommodations at the appropriate time. Because it’s your choice to remain
in jail clothing and to have the waist chain left on you, I do need to advise you that I will
be admonishing or advising the jury that the decision[s] to remain in jail clothing and to
have your waist chains on are yours and yours alone. And you were given an opportunity
to change into other clothing and to have the waist chains removed, and that you declined
to do so. [¶] Do you understand that, sir?” Defendant refused to respond. Jury selection
commenced.
The next day the court observed defendant was still wearing his orange jumpsuit.
Defense counsel informed the court he had discussed the matter with defendant, but
defendant did not wish the contents of the conversation divulged due to attorney-client
privilege. The court asked defendant if he would like his chains removed. The court
received no response from defendant.
On the next trial date, the court asked if defendant would like to change clothes
and have his shackles removed. Defendant, again, refused to respond. The People began
their case-in-chief. Subsequent to the afternoon recess, the court noted, “Record will
reflect that during the noon recess [defendant] requested to be dressed out. He is now
dressed in street clothes and does have his shackles removed.”
Posttrial, the court instructed the jury with CALCRIM No. 204, reading, “The fact
that physical restraints have been placed on the defendant is not evidence. Do not
speculate about the reason. You must completely disregard this circumstance in deciding
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the issues in this case. Do not consider it for any purpose or discuss it during your
deliberations.”
In his closing argument, defense counsel stated “Sergeant Beach in the middle of
the night on December 4[], shot the wrong man. He shot [defendant]. He [s]hot him
from behind.” “[T]he truth lies entirely in the small details . . . not through statements of
a man who shot another man from behind.”
In his rebuttal, the prosecutor stated defense counsel “told you in his opening, and
he told you the defendant was shot in the back, really. Did anybody testify the defendant
was shot in the back?”8 Defense counsel objected that the prosecutor was misstating the
defense argument. The court overruled the objection.
The prosecutor continued, “You can go through all the evidence, all the
transcripts, did anyone testify that the defendant was shot in the back? They didn’t. No
one testified to that. [¶] Now, it’s true, I have the burden. I have to prove the case
beyond a reasonable doubt. But when the defense puts on a defense, which they did by
calling Officer Cogswell to testify to those injuries, you can judge the nature and quality
of that defense in determining whether or not I have met my burden; okay. [¶] If the
defendant was shot in the back, don’t you think that the doctor who treated him would
have been here to tell you about that?”
Defense counsel objected that the prosecutor was attempting to shift the burden of
proof. The court overruled the objection. The prosecutor continued, “The fact of the
8 Defense counsel’s opening statement is not a part of the record on appeal.
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matter is he wasn’t shot in the back. You don’t know anything about the position of his
body when he was shot.”
During the sentencing hearing the court found “a motor vehicle was involved in
this crime as much as it appeared to be driven to the location and was ready to be driven
away from the location by this defendant or by his accomplice.” The court sentenced
defendant to the upper term on count 1, finding two aggravating factors and no mitigating
factors. The court noted defendant had acted in concert with another person in
committing the robbery and had acted dangerously by running in public with a gun which
resulted in a public shooting.
DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
(People v. Seaton (2001) 26 Cal. 4th 598, 652 [in choosing a restraint, a defendant cannot
complain of prejudice from the jury’s observation of the chosen restraint]; People v.
Wash (1993) 6 Cal. 4th 215, 262-263 [prosecutor’s comment upon defendant’s failure to
adduce material evidence or call logical witnesses not improper]; People v. Black (2007)
41 Cal. 4th 799, 813 [one legally sufficient aggravating factor justifies imposition of the
upper term]; People v. Crockett (1990) 222 Cal. App. 3d 258, 263 [court documents, and
reasonable inferences made therefrom, may provide substantial evidence a defendant
suffered a prior prison term and failed to remain free from custody for five years.]; See
People v. Burch (2007) 148 Cal. App. 4th 862, 868 [section 969(b) packet properly
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admitted to prove prior prison term allegation]; People v. Gimenez (1995) 36 Cal. App. 4th
1233, 1237 [use of vehicle to arrive at scene of offense and intent to flee therein,
sufficient to support finding that a vehicle was used in the commission of the crime].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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