People v. Hines CA3 ( 2014 )

Filed 3/14/14 P. v. Hines CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C063021
v. (Super. Ct. No. 08F02808)
RODNEY TYRONE HINES et al.,
Defendants and Appellants.
THE PEOPLE,
Plaintiff and Respondent, C063709
v. (Super. Ct. No. 08F02808)
JERMAINE SHONTREL ELLINGTON,
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, C064130
v. (Super. Ct. No. 08F02808)
ANGELO EDWARDLEE BYRD,
Defendant and Appellant.
1
Angelo Edwardlee Byrd, Jermaine Shontrel Ellington, Rodney Tyrone Hines and
Mario Jamal Johnson were variously convicted of the following crimes in relation to a
home invasion robbery: first degree residential robbery, first degree attempted robbery of
a 14-year-old minor, first degree attempted robbery of a 10-year-old minor, assault with a
firearm, assault with intent to commit rape, and sexual battery. Gang and firearms use
enhancement allegations were found to be true.
Defendants appeal their convictions and/or sentences on various grounds. We
consolidated the appeals for argument and decision and address the same or related
claims together in this opinion.
We conclude the contentions of Byrd and Ellington lack merit, and Johnson’s
appellate claim is forfeited. As for Hines, we agree with his contention, discussed in
part XIV of this opinion, that the trial court erred in imposing five-year sentence
enhancements pursuant to Penal Code section 667, subdivision (a) on the determinate
terms for count two (attempted robbery) and count six (sexual battery). We also agree
with his contention, discussed in part XV of this opinion, that the trial court erred in
imposing a full-term sentence on count six (sexual battery). His other contentions lack
merit.
We will vacate the sentences imposed against Hines on counts two and six and
remand the matter to the trial court to resentence Hines on those counts. The judgments
are otherwise affirmed.
BACKGROUND
As she left her home L. J. (Mother) saw five Black men walk down the driveway
she shared with her neighbors. The men walked on both sides of Mother’s car to allow
her car to pass. Mother saw the men’s faces and clothing. Mother’s children--a 14-year-
old daughter (Daughter), a 10-year-old son (Son) and their younger siblings--were at
home alone.
2
Daughter was walking down the stairs of her home when five men, all carrying
guns, rushed in the front door. One of the intruders, defendant Ellington, locked the door.
The intruders pulled down their masks and Daughter saw their faces.
The intruders pointed their guns at Daughter and ordered her to get down. They
demanded to know where the money was and said, “[w]e know you got money.” They
ransacked her house.
Daughter tried to run up the stairs but someone pulled her down the stairs by the
back of her shirt. Some of the intruders, including one who wore grey Vans brand shoes,
ran past Daughter to the second floor of the house. Daughter later identified the intruder
with the grey Vans shoes as defendant Johnson.
One of the intruders who went upstairs entered Son’s room and pointed a gun at
Son. The intruder threatened to shoot Son if he moved or said anything.
Two of the intruders stayed with Daughter on the stairway. One of them wore
shoes with multi-colored soles, like a pair of shoes Daughter owned. This intruder was
later identified as Byrd.
On the stairway, Daughter was hit with a gun. Her head was held down and she
was punched in the face. Someone ordered that Daughter be brought upstairs and said,
“[s]trip the bitch.” Byrd took off Daughter’s shirt and bra. He choked Daughter and
dragged her upstairs to the hallway bathroom. There, Daughter’s head was hit against the
sink. Hines and Byrd were with Daughter in the hallway bathroom.
Byrd then took Daughter to Mother’s bedroom and bent her over the bed. The
other intruders were in the room. Some of them were looking through the things in the
room. Daughter tried to grab the telephone but Byrd hit her. Byrd unbuckled Daughter’s
belt and pants and felt her bare breast with his hand.
During the incident, the intruders referred to each other as “Blood.” Son reported
to an investigating deputy that he heard the intruders ask, “[w]here’s the money, Blood?”
3
The intruders ran out of the house through the back sliding door when Mother
returned home and honked her car horn.
Daughter told deputies the intruders were four to six Black males in their 20’s, of
average build, and wearing dark-colored hooded sweatshirts and dark-colored pants. She
reported that each intruder carried a gun. Mother similarly reported seeing four to six
Black males in their teens or early 20’s, wearing dark-colored hooded sweatshirts.
Deputies were informed that the perpetrators fled the victims’ house and ran
toward Stockton Boulevard. Within 10 minutes after Daughter called 911 to report the
crimes, Sergeant Craig Goncalves saw defendants--four Black males--walking together
along northbound Stockton Boulevard. Defendants were less than a mile from the
victims’ house. Defendants continued walking intently, ignoring the patrol cars driving
past them with lights and sirens activated. It appeared to Goncalves that defendants were
trying not to be noticed.
Goncalves made a U-turn to contact the group. He and his partner Deputy Julius
Wallace stopped Ellington, Johnson and Byrd at the intersection of Stockton Boulevard
and Fruitridge Road, near a Rite Aid drug store. Hines crossed to the opposite side of
Stockton Boulevard and walked away from Goncalves and Wallace but was subsequently
detained by Sergeant Timothy Gorham.
Mother and Daughter were taken separately to the Rite Aid parking lot for show-
ups. Mother was not present at Daughter’s show-up, and Daughter did not speak with
Mother before her show-up. Each positively identified defendants as the perpetrators.
A palm print obtained from the sliding glass door at the victims’ house matched
Johnson’s palm print. Forensic analysis determined that the shoes worn by Byrd could
have made a shoeprint found in the victims’ backyard. Law enforcement officers also
found a loaded .45 caliber semiautomatic handgun magazine in a neighbor’s backyard.
Additional facts are referenced in the discussion as relevant to the contentions on
appeal.
4
Defendants were charged with (1) first degree residential burglary (Pen. Code,
§ 459),1 (2) attempted first degree robbery of Daughter (§§ 664, 211, 213,
subd. (a)(1)(A)), (3) attempted first degree robbery of Son (§§ 664, 211, 213,
subd. (a)(1)(A)), (4) assault with a firearm against Son (§ 245, subd. (a)(2)), (5) assault
with intent to commit rape against Daughter (§§ 220, subd. (b), 460), and (6) sexual
battery of Daughter (§ 243.4, subd. (a)). It was alleged in counts one through six that
defendants or a principal personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5,
subd. (a), 12022.53, subds. (b), (e)(1)), causing the offense to be a serious and violent
felony (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)). It was also alleged that Ellington,
Hines and Byrd committed the charged offenses for the benefit of, at the direction of and
in association with a criminal street gang with the specific intent to promote, further and
assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). No gang
enhancement allegation was charged against Johnson. Hines was additionally charged in
count seven with possession of a firearm by a felon (former § 12021, subd. (a)(1)).
The jury convicted Byrd, Hines and Johnson on counts one and two and found the
enhancement allegations in those counts to be true. Byrd and Hines were also convicted
on counts five and six and the jury found the enhancement allegations in those counts to
be true. Additionally, Hines was convicted on count seven. The jury found Byrd, Hines
and Johnson not guilty on the remaining counts. The trial court declared a mistrial as to
Ellington because the jury could not reach a verdict on the charges against him.
Ellington was retried on counts one through six. The second jury convicted him
on counts one through four and found the gang enhancement allegation and the allegation
that a principal used a firearm to be true but found the allegation that Ellington personally
1 Undesignated statutory references are to the Penal Code.
5
used a firearm to be not true. The second jury deadlocked on counts five and six. The
trial court declared a mistrial on those counts.
DISCUSSION
I
A
Ellington, Hines and Byrd contend the trial court erred in denying their motion,
pursuant to section 1538.5, to suppress evidence arising from their arrest.2 In particular,
defendants claim that handcuffing them and placing them in patrol cars resulted in a de
facto arrest, and such arrest violates the Fourth Amendment to the federal Constitution
because it is not supported by probable cause. If the officers’ conduct did not result in a
de facto arrest, Ellington and Hines maintain that no specific and articulable fact supports
a reasonable suspicion that defendants committed a crime, justifying their detention.
We review defendants’ claims under federal constitutional standards (People v.
Rogers (2009) 46 Cal. 4th 1136, 1156, fn. 8), and use our independent judgment to
determine whether the evidence adduced at the hearing on defendants’ section 1538.5
motion established that an arrest occurred when officers stopped defendants and whether
probable cause or reasonable suspicion existed (People v. Butler (2003) 111 Cal. App. 4th
150, 159-160; People v. Rivera (1992) 8 Cal. App. 4th 1000, 1005-1006).
The Fourth Amendment to the federal Constitution, made applicable to the states
through the Fourteenth Amendment, guarantees the right to be secure against
unreasonable seizures. (People v. Celis (2004) 33 Cal. 4th 667, 673 (Celis).) Ellington,
Hines and Byrd contend they were placed under arrest prior to the in-field show-ups, but
2 Defendants’ claim is based on the June 23-24, 2009 hearing on their section 1538.5
motion. Section 1538.5 authorizes a motion to suppress as evidence any tangible or
intangible thing obtained as a result of a search or seizure on the grounds that the search
or seizure without a warrant violated federal or state constitutional standards.
6
the Attorney General contends defendants were merely temporarily detained for
investigation purposes before the show-ups. The distinction between an arrest and a
detention is significant under the Fourth Amendment because when the seizure of a
person amounts to an arrest, it must be supported by an arrest warrant or probable cause
(Celis, supra, 33 Cal.4th at p. 673), neither of which the Attorney General contends
existed when officers stopped defendants. (People v. Soun (1995) 34 Cal. App. 4th 1499,
1515 (Soun) [in assessing the constitutional propriety of a seizure, a court must first
determine whether the seizure was an arrest or a detention because the constitutional
standard for a detention “ ‘is of [a] lesser degree than that applicable to an arrest,’ ” italics
omitted].) By comparison, an investigative detention need not be justified by probable
cause. (Florida v. Royer (1983) 460 U.S. 491, 498-499 [75 L. Ed. 2d 229, 236-237];
Celis, supra, 33 Cal.4th at p. 674.) A detention requires only an objectively reasonable,
articulable suspicion that the person to be stopped has committed or is about to commit a
crime, which is a “less demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence.” (Illinois v. Wardlow (2000) 528
U.S. 119, 123 [145 L. Ed. 2d 570, 576].)
“ ‘[T]here is no hard and fast line to distinguish permissible investigative
detentions from impermissible de facto arrests. Instead, the issue is decided on the facts
of each case, with focus on whether the police diligently pursued a means of investigation
reasonably designed to dispel or confirm their suspicions quickly . . . .’ [Citations.]
Important to this assessment . . . are the ‘duration, scope and purpose’ of the stop.
[Citation.]” (Celis, supra, 33 Cal.4th at pp. 674-675.) “ ‘ “[T]he brevity of the invasion
of the individual’s Fourth Amendment interests is an important factor in determining
whether the seizure is so minimally intrusive as to be justifiable on reasonable
suspicion.” ’ [Citation.]” (Id. at p. 675.) “With regard to the scope of the police
intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the
ground for a short period . . . do not convert a detention into an arrest. [Citations.] [¶]
7
Of significance too are the facts known to the officers in determining whether their
actions went beyond those necessary to effectuate the purpose of the stop, that is, to
quickly dispel or confirm police suspicions of criminal activity. [Citations.] Although a
routine traffic stop would rarely justify a police officer in drawing a gun or using
handcuffs, such actions may be appropriate when the stop is of someone suspected of
committing a felony.” (Id. at pp. 675-676.) We look at the totality of the circumstances
of the detention to determine whether an investigatory stop has turned into a de facto
arrest. (Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 991.)
Here, the length of the detention was not excessive, and law enforcement officers
acted diligently to investigate whether defendants were involved in the crimes reported
by Daughter. Goncalves stopped defendants because he believed they may be involved
in the reported crimes. After securing defendants, law enforcement officers quickly
ascertained their identities and promptly arranged in-field show-ups to determine whether
defendants were the individuals responsible for the reported crimes. The computer
assisted dispatch report shows that the first show-up was conducted within 11 minutes
after Ellington, Johnson and Byrd were detained. The second show-up started about 27
minutes after defendants were stopped. Mother and Daughter were transported, without
unreasonable delay, to the parking lot where defendants were detained for the in-field
identifications. Thus, the detention of defendants did not last longer than was necessary
to verify or dispel Goncalves’s suspicion that defendants may be involved in the burglary
and assault, and law enforcement officers diligently pursued such investigation.
(Gallegos v. City of Los Angeles, supra, 308 F.3d at pp. 991-993 [detention for 45
minutes to an hour was reasonable where officers diligently investigated whether
defendant was the person who tried to break into the victim’s house]; Soun, supra, 34
Cal.App.4th at pp. 1520, 1524 [detention for about 45 minutes while sergeant contacted
authorities in the jurisdiction where the murder was committed to obtain instructions and
to provide a description of the subjects detained was no more protracted than was
8
reasonably necessary]; In re Carlos M. (1990) 220 Cal. App. 3d 372, 381, 385 [detention
for 30 minutes before rape victim identified defendant was reasonable].)
Ellington, Hines and Byrd claim that handcuffing them resulted in an arrest.
Ellington argues that stopping him at gunpoint, handcuffing him without asking any
questions, and placing him in the back of a patrol car transformed his detention into an
arrest. Hines says that handcuffing him and taking him in a patrol car to a parking lot
about 200 yards from where he was stopped constituted an arrest.
Handcuffing and detention at gunpoint substantially increase the intrusiveness of a
stop and is not part of a typical investigatory detention. (Washington v. Lambert (9th Cir.
1996) 98 F.3d 1181, 1188; People v. Stier (2008) 168 Cal. App. 4th 21, 27 (Stier).)
Nevertheless, stopping a suspect at gunpoint, handcuffing him, and placing him in a
patrol car do not automatically elevate a seizure into an arrest requiring probable cause.
(Gallegos v. City of Los Angeles, supra, 308 F.3d at pp. 991-992; Celis, supra, 33 Cal.4th
at p. 675; Soun, supra, 34 Cal.App.4th at pp. 1517-1520.) This is because an officer may
take reasonably necessary steps to protect his or her safety and to maintain the status quo
during a detention. (Celis, supra, 33 Cal.4th at p. 675.) The issue is whether the methods
used during a detention were reasonably necessary under all of the circumstances of the
detention. (Stier, supra, 168 Cal.App.4th at p. 27; In re Antonio B. (2008) 166
Cal. App. 4th 435, 441.)
In Celis, supra, 33 Cal.4th at page 676, a single officer detained two men
suspected of drug trafficking. The officer drew his gun to ensure that both suspects
would stop, handcuffed them, and made them sit on the ground for a few minutes while
officers checked whether anyone was inside defendant’s house. (Ibid.) The California
Supreme Court found that the procedure officers used did not turn defendant’s detention
into an arrest. (Ibid.) In Soun, supra, 34 Cal.App.4th at pages 1517-1520, there was no
de facto arrest where six suspects were removed from a car at gunpoint by a large number
of police officers, forced to lie on the ground, handcuffed, and placed in separate police
9
cars because there was reason to believe the suspects were armed and might flee. In
People v. Bowen (1987) 195 Cal. App. 3d 269, 272-274, the defendant was not under
arrest merely because he was handcuffed to a guard rail for 25 minutes while the victim
was brought to the area to identify him because police officers promptly arranged the in-
field show-up to determine whether defendant was one of the assailants. Likewise, in the
case In re Carlos M., supra, 220 Cal.App.3d at pages 382-385, handcuffing defendant
and transporting him and another suspect in a patrol car to a nearby hospital for an
identification by the victim did not transform defendant’s detention into an arrest.
In United States v. Alvarez (9th Cir. 1990) 899 F.2d 833, 835, three officers
approached defendant with their weapons drawn, ordered defendant to get out of the car,
and handcuffed him. It was held that because officers had reason to believe defendant
was carrying explosives, the police actions were justified and did not convert an
investigatory stop into an arrest. (Id. at pp. 838-839.) In Gallegos v. City of Los Angeles,
supra, 308 F.3d 987, defendant was ordered from his truck at gunpoint, handcuffed,
placed in the back of a patrol car, transported to the victim’s house, and detained for 45
minutes to an hour, all without asking him for his identification. He was released after a
witness confirmed he was not the man who tried to break into the victim’s house. (Id. at
p. 989.) The appellate court said the officers’ conduct did not result in an arrest, even
where defendant cooperated with all police commands, because the detention was brief,
calculated solely to ensure that the police had the right person, and resulted in
defendant’s prompt vindication. (Id. at pp. 991-993.)
Examining the circumstances present at the time of the detention here, including
the facts known to officers, we conclude the conduct by law enforcement authorities was
reasonable and did not transform the encounter with defendants into an arrest. While
Ellington and Byrd were cooperative after they were stopped and they did not attempt to
flee, when Goncalves and Wallace initiated the stop there were only two officers
approaching three adult male suspects. (Washington v. Lambert, supra, 98 F.3d at
10
p. 1190 [use of aggressive police tactics during investigatory stop may be reasonable
where police are outnumbered]; Celis, supra, 33 Cal.4th at p. 676 [detention did not
become an arrest simply because a single officer drew his gun to stop two suspects];
Stier, supra, 168 Cal.App.4th at pp. 27-28 [the fact that the suspects outnumber the
officers may justify the use of handcuffs].) Unlike the cases defendants analogize to this
one, Goncalves and Wallace had reason to believe that defendants may be armed and
might flee because officers were informed the perpetrators carried guns and ran from the
crime scene. (Washington v. Lambert, supra, 98 F.3d at p. 1190 [no information that
persons stopped were armed or that there had been a violent crime in the area shortly
before the stop]; United States v. Ricardo D. (9th Cir. 1990) 912 F.2d 337, 340 [no
reason to believe juvenile was dangerous and there were no other people in the area when
the juvenile was seized]; United States v. Ramos-Zaragosa (9th Cir. 1975) 516 F.2d 141,
144 [no facts showing fear for officer safety]; United States v. Strickler (9th Cir. 1974)
490 F.2d 378, 379-380 [no facts in the opinion showed that defendant presented a danger
to officers].) Officers were also informed that the perpetrators recently committed
violent crimes, and more armed suspects were unaccounted for at the time of the stop.
Goncalves was on “elevated alert.” Additionally, Goncalves and Wallace stopped
defendants in a high crime area and there were people watching the police activity, all of
which could reasonably raise safety or security concerns. (Allen v. City of Los Angeles
(9th Cir. 1995) 66 F.3d 1052, 1057 [fact that stop occurred in a high crime area was
relevant to appellate court’s consideration of whether police detention tactics resulted in
an arrest]; People v. Courtney (1970) 11 Cal. App. 3d 1185, 1188-1189, 1191-1192
[officer’s statement that he would have to transport defendant to the university police
station for further questioning because there was a growing crowd gathering to watch the
stop did not transform investigatory stop into an arrest].) Officers are entitled to take
reasonable precautions, including an armed approach and the use of handcuffs, when they
encounter a potentially dangerous situation or where there is a risk that a suspect might
11
flee. (Washington v. Lambert, supra, 98 F.3d at pp. 1186-1187 [a court must consider the
dangerousness of the situation that confronted the police when evaluating a Fourth
Amendment claim]; Celis, supra, 33 Cal.4th at p. 676 [not unreasonable for detective to
draw his gun because suspects might flee]; Stier, supra, 168 Cal.App.4th at p. 27
[handcuffing a suspect during a detention has been sanctioned where the officer had a
reasonable basis for believing the suspect posed a present threat or might flee].)
Wallace testified he probably had his gun out when he exited the patrol car, and he
immediately placed Johnson in handcuffs.3 There is no evidence that Wallace had his
gun out after that point. As for Hines, it is not unreasonable for a single officer
transporting a suspect to handcuff the suspect before placing him in the back of his patrol
car. (In re Carlos M., supra, 220 Cal.App.3d at p. 385 [handcuffing assures officer’s
safety when transporting two men suspected of committing a violent crime].)
Byrd and Hines also contend that the officers should have used the least intrusive
means of investigation. But the United States Supreme Court has rejected the argument
that law enforcement officers must use the least intrusive means available to verify or
dispel their suspicion that a defendant has engaged in criminal activity. (United States v.
Sokolow (1989) 490 U.S. 1, 10-11 [104 L. Ed. 2d 1, 12].) The Supreme Court explained,
“[t]he reasonableness of the officer’s decision to stop a suspect does not turn on the
availability of less intrusive investigatory techniques. Such a rule would unduly hamper
the police’s ability to make swift, on-the-spot decisions . . . and it would require courts to
‘indulge in “unrealistic second-guessing.” ’ [Citation]” (Id. at p. 11 [104 L.Ed.2d at
p. 12]; accord, Board of Education v. Earls (2002) 536 U.S. 822, 837 [153 L. Ed. 2d 735,
749] [“this Court has repeatedly stated that reasonableness under the Fourth Amendment
does not require employing the least intrusive means”].) We focus instead on whether
3 Goncalves, who handcuffed Byrd, did not know whether he drew his gun when he
initially contacted defendants. Gorham did not draw his gun when he stopped Hines.
12
the officers’ actions were reasonable under all of the circumstances presented.
(Gallegos v. City of Los Angeles, supra, 308 F.3d at p. 991; Celis, supra, 33 Cal.4th at
pp. 674-676; Stier, supra, 168 Cal.App.4th at p. 27.)
We conclude the procedures the officers used to temporarily detain defendants
until the in-field show-ups commenced--the armed approach by Wallace, handcuffing,
placing defendants in patrol cars, and transporting Hines approximately 200 yards to the
location where the other defendants were detained--were reasonably necessary. The
police conduct here did not exceed the permissible bounds of an investigatory stop.
(Gallegos v. City of Los Angeles, supra, 308 F.3d at pp. 989, 991-992 [detention at
gunpoint, handcuffing, and transporting suspect a few miles, in a patrol car, to the
victim’s house for identification did not result in an arrest]; United States v. Parr (9th
Cir. 1988) 843 F.2d 1228, 1231 [placing defendant in the back of a patrol car did not
result in an arrest]; United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1287-1290
[handcuffing suspects while officers investigated their explanation for being in the
vicinity of a recent armed robbery was reasonable where officers did not know where the
third armed suspect was, one of the officers would be left behind with the two men as his
partner investigated, and the suspects appeared extremely nervous]; People v. Harris
(1975) 15 Cal. 3d 384, 391 [acknowledging that there are some situations where it might
be reasonable to transport a suspect to the crime scene for possible identification]; Soun,
supra, 34 Cal.App.4th at p. 1517; People v. Torres (2010) 188 Cal. App. 4th 775, 785-786
[placing defendant in a patrol car pending an inventory search of his truck did not
constitute a de facto arrest]; In re Carlos M., supra, 220 Cal.App.3d at p. 385 [no arrest
resulted where a single officer handcuffed two rape suspects and transported them a short
distance in a police car].)
Ellington and Byrd next claim that transporting them to an in-field show-up
resulted in an arrest. But there was no evidence at the section 1538.5 hearing that either
of these defendants was transported for a show-up. (People v. Fiscalini (1991)
13
228 Cal. App. 3d 1639, 1644, fn. 5 [our review of the denial of a section 1538.5 motion is
limited to the evidence before the trial court at the hearing on such motion]; People v.
Neighbours (1990) 223 Cal. App. 3d 1115, 1118 [evidence not before the trial court upon
the section 1538.5 motion is not part of the record subject to review by this court].) For
this reason, their reliance on prearrest transportation cases is misplaced. In any event,
prearrest transportation does not necessarily result in a de facto arrest. (Gallegos v. City
of Los Angeles, supra, 308 F.3d at pp. 989, 991-992; United States v. Kapperman (11th
Cir. 1985) 764 F.2d 786, 789-792; People v. Harris, supra, 15 Cal.3d at pp. 390-391;
Soun, supra, 34 Cal.App.4th at p. 1517; In re Carlos M., supra, 220 Cal.App.3d at
pp. 383-384; In re Lynette G. (1976) 54 Cal. App. 3d 1087, 1092-1094.)
The facts before us are also distinguishable from those in Kaupp v. Texas (2003)
538 U.S. 626 [155 L. Ed. 2d 814], a case Ellington likens to his. Seventeen–year–old
Kaupp was awakened in his bedroom at 3:00 a.m. by at least three police officers, one of
whom told him “ ‘ “we need to go and talk.” ’ ” (Id. at pp. 628-629 [155 L.Ed.2d at
pp. 819-821].) The boy was taken out of his home in handcuffs, without shoes, dressed
only in his underwear, placed in a patrol car, driven to the scene of a crime and then to
the sheriff’s headquarters, where he was taken into an interrogation room, read his rights
under Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694], and questioned.
(Kaupp v. Texas, supra, at pp. 628-629, 631 [155 L.Ed.2d at pp. 819-821].) In contrast,
Goncalves and Wallace contacted defendants on the street. (Kentucky v. King (2011) ___
U.S. ___ [179 L. Ed. 2d 865, 884] [Fourth Amendment interests are strongest in our
homes]; Illinois v. McArthur (2001) 531 U.S. 326, 336 [148 L. Ed. 2d 838, 851] [detention
on the street is a less serious restriction than police entry into the home].) And there is no
evidence at the time of the section 1538.5 hearing that defendants were transported
anywhere for an interrogation.
The next question is whether the totality of the circumstances supports a
particularized and objectively reasonable suspicion that defendants committed the
14
reported crimes, thereby permitting officers to detain defendants to investigate. (United
States v. Arvizu (2002) 534 U.S. 266, 273 [151 L. Ed. 2d 740, 749] [in making a
reasonable suspicion determination, a court must look at the totality of the circumstances
in each case].) A detention is reasonable under the Fourth Amendment when the
detaining officer can point to specific and articulable facts that, considered in light of the
totality of the circumstances, would cause any reasonable officer in a like position to
suspect that the person detained may be involved in criminal activity. (Terry v. Ohio
(1968) 392 U.S. 1, 20-22 [20 L. Ed. 2d 889, 905-906]; People v. Souza (1994) 9 Cal. 4th
224, 231.) “ ‘In reviewing the propriety of an officer’s conduct, courts do not have
available empirical studies dealing with inferences drawn from suspicious behavior, and
we cannot reasonably demand scientific certainty from judges or law enforcement
officers where none exists. Thus, the determination of reasonable suspicion must be
based on commonsense judgments and inferences about human behavior.’ [Citation.]”
(People v. Letner and Tobin (2010) 50 Cal. 4th 99, 146.)
Goncalves pointed to specific facts that, considered with the rational inferences
therefrom and all of the circumstances, gave rise to a reasonable suspicion that
defendants may have been involved in the reported home invasion robbery and assault.4
Hines attacks the testimony of Goncalves as dubious, insubstantial and contradictory to
that of Wallace. But where, as here, the trial court held an evidentiary hearing pursuant
to section 1538.5 and had an opportunity to observe the witness’s demeanor, we do not
substitute our judgment for the credibility determinations of the trial court, reweigh the
evidence, draw inferences other than those reasonably drawn by the trial court, or resolve
factual conflicts. (People v. Martin (1973) 9 Cal. 3d 687, 692 [all factual conflicts must
be resolved in the manner most favorable to the trial court’s disposition]; People v. Lewis
4 Byrd concedes that officers had reasonable suspicion to stop defendants for
investigation and questioning.
15
(1982) 133 Cal. App. 3d 317, 323.) The trial court’s findings are supported by
Goncalves’s testimony at the suppression hearing.
Goncalves and Wallace responded to a call concerning a large group of Black
males who broke into the victims’ house and attempted to sexually assault Daughter.
Based on his 15 years of experience as a law enforcement officer and the nature of the
crimes reported, Goncalves believed the perpetrators would be between 15 and 27 years
of age. Officers were informed that the suspects were on foot and headed toward
Stockton Boulevard. Goncalves expected the suspects to split up.
Defendants fit the general description of the suspects provided to law enforcement
authorities (Black adult males), and appeared to be in the age range Goncalves believed
would have committed a sexual assault. This factor is notably missing in People v.
Perrusquia (2007) 150 Cal. App. 4th 228, 234, a case Ellington relies upon. Goncalves
saw defendants walking along Stockton Boulevard, the street where the perpetrators had
reportedly fled. Unlike the case in In re Tony C. (1978) 21 Cal. 3d 888, which Hines
cites, officers saw defendants within minutes of the reported crimes for which defendants
were stopped. Defendants were in the vicinity of the victims’ house close in time after
the perpetrators’ flight from the scene.
Goncalves noted that defendants were walking together in a group.5 This fact
raised Goncalves’s suspicion because he was looking for a large group of Black males.
Also, while there were other people on the street, according to Goncalves, defendants
5 Although there is disagreement in the testimonies of Goncalves and Wallace about how
many groups of people were walking along Stockton Boulevard and the size of any
groups observed, both agreed defendants were in what appeared to be a group of three or
four. The trial court credited Goncalves’s testimony that defendants walked in a group of
four. We defer to the trial court’s credibility determination and resolution of factual
conflicts. (People v. Weaver (2001) 26 Cal. 4th 876, 924; People v. Oldham (2000)
81 Cal. App. 4th 1, 9; People v. Lewis, supra, 133 Cal.App.3d at p. 323.)
16
were the only ones walking in a group. In Goncalves’s experience, it was unusual for
four people to walk in a group at that hour on a Monday night.
Goncalves’s suspicions were also aroused because defendants appeared to
deliberately ignore passing patrol cars, which had their lights and sirens activated. In
Goncalves’s experience, people who recently committed a crime purposefully avoid
contact with law enforcement officers. (United States v. Arvizu, supra, 534 U.S. at
pp. 270, 275-277 [151 L.Ed.2d at pp. 748, 751-752] [experienced border patrol agent’s
suspicion of criminal activity, based in part on the fact that defendant did not look at the
agent as defendant’s van passed the agent’s vehicle and defendant seemed to be trying to
pretend that the agent was not there, was entitled to some weight in assessing whether
there was reasonable suspicion to justify an investigatory stop].) Goncalves said that
people tend to look at patrol cars as they pass with their lights and sirens activated, and
on several occasions Goncalves stopped individuals who appeared to deliberately avoid
contact with officers and found such persons directly related to the crime under
investigation. Goncalves found defendants’ conduct suspicious.
With respect to Hines, Goncalves had identified Hines as a person of interest
based on Goncalves’s observations about the group of four. As Goncalves made a U-turn
to contact the group, Hines crossed the street and walked in the opposite direction. This
conduct raised Goncalves’s interest further. Additionally, Gorham observed other facts
that made him decide it was appropriate to detain Hines. Hines walked at a fast pace
away from Goncalves and Wallace and was in the vicinity of the victims’ house.
(People v. Letner and Tobin, supra, 50 Cal.4th at p. 147 [attempt to avoid contact with
police can contribute to reasonable suspicion]; People v. Souza, supra, 9 Cal.4th at p. 235
[flight from approaching police officers is a key factor in determining whether the police
have sufficient cause to detain].) Hines matched the general description of the suspects.
He acted as if nothing was going on even though everyone else in the area watched the
passing patrol cars. And when Gorham contacted him, Hines was evasive, appeared very
17
nervous, and made an apparently untruthful statement about where he was going.
(Illinois v. Wardlow, supra, 528 U.S. at p. 124 [145 L.Ed.2d at p. 576] [suspect’s nervous
and evasive behavior is a pertinent factor in determining reasonable suspicion].)
While there may have been innocent explanations for each of the observations
made by the officers, “the possibility of innocent explanations for the factors relied upon
by a police officer does not necessarily preclude the possibility of a reasonable suspicion
of criminal activity.” (People v. Letner and Tobin, supra, 50 Cal.4th at p. 146; United
States v. Arvizu, supra, 534 U.S. at pp. 274-277 [151 L.Ed.2d at pp. 750-752].)
“ ‘ “Indeed, the principal function of [police] investigation is to resolve that very
ambiguity and establish whether the activity is in fact legal or illegal . . . .” [Citation.]’ ”
(People v. Letner and Tobin, supra, 50 Cal.4th at p. 148.) The officers’ observations,
based on their experience in law enforcement, are entitled to weight in our determination.
(United States v. Arvizu, supra, 534 U.S. at pp. 274-277 [151 L.Ed.2d at pp. 750-752].)
We conclude that the trial court correctly denied defendants’ section 1538.5
motion because the totality of the circumstances at the time of defendants’ detention,
viewed objectively, reasonably justified detaining defendants for investigative purposes.
B
Hines also argues that the trial court erred in finding the following facts when it
denied defendants’ suppression motion: (1) defendants conceded they were detained for
the purpose of an in-field identification; (2) the suspects fled in the direction of Stockton
Boulevard; (3) one of the suspects separated from the group, which enhanced the
officers’ suspicion; and (4) Ellington, Johnson and Byrd were handcuffed because of a
concern about officer safety.
As we have stated, in a proceeding under section 1538.5, “the power to judge the
credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence
and draw factual inferences, is vested in the trial court. On appeal all presumptions favor
the exercise of that power, and the trial court’s findings on such matters, whether express
18
or implied, must be upheld if they are supported by substantial evidence.” (People v.
Lawler (1973) 9 Cal. 3d 156, 160.)
The trial court’s statement that defendants conceded they were detained for the
purpose of an in-field identification is supported by the declaration of Ellington’s defense
counsel. Counsel averred that Ellington was detained for the purpose of an in-field
identification. Johnson, Hines and Byrd joined in Ellington’s section 1538.5 motion.
There is no error in this challenged finding.
The record also supports the trial court’s finding that the suspects “fled . . . in the
direction of Stockton and--the intersection of Stockton Boulevard and Fruitridge Road,
which was approximately a quarter to a half mile away. [¶] That’s where the suspects,
the defendants, were first observed by the officers.” Goncalves and Wallace testified that
when they first observed defendants, defendants were walking along Stockton Boulevard
near Fruitridge Road, which, according to Goncalves, was between a quarter to half of a
mile from the location of the reported crimes. The trial court’s statement that the
suspects fled in the direction of Stockton Boulevard is supported by the testimonies of
Goncalves and Gorham, who said they were informed the suspects fled down Gordon
Drive, toward Stockton Boulevard. Sacramento County Sheriff’s Department dispatcher
Gina Simonsa also testified that the suspects reportedly fled toward Stockton Boulevard.
Hines asserts the trial court’s finding is erroneous because a person travelling
eastbound on Gordon Drive is heading in the opposite direction of the intersection of
Stockton Boulevard and Fruitridge Road, where defendants were detained. Our review of
the map of the area that is in the appellate record does not substantiate this assertion.
Hines further contends that Goncalves had no information indicating that the
suspects turned north onto Stockton Boulevard. We agree the record contains no
evidence that such information was relayed to officers. But the trial court did not find
that officers were advised that the suspects turned north onto Stockton Boulevard.
Instead, the trial court credited Goncalves’s judgment that the suspects turned north onto
19
Stockton Boulevard from Gordon Drive. This finding is supported by Goncalves’s
testimony that he was informed the suspects fled toward Stockton Boulevard, he saw
defendants walking northbound on Stockton Boulevard, and he believed defendants were
involved with the reported crimes.
Hines also challenges the trial court’s finding that “before the detention, one
suspect broke off from the others, which the officers regarded as enhancing their
suspicion . . . .” Hines points out that Goncalves testified it was not significant to him
that Hines broke away from the other defendants. However, Hines ignores Goncalves’s
subsequent statement that he was “definitely interested” in Hines because Hines was part
of the group of four that he observed. Goncalves said he suspected the group might be
involved in the reported crimes, and the fact that Hines distanced himself from the group
when Goncalves made a U-turn to contact the group raised Goncalves’s interest. The
trial court reasonably inferred from this evidence that Goncalves’s suspicion was
enhanced when Hines separated himself from the other defendants.
As for the trial court’s finding that both Goncalves and Wallace regarded the fact
that Hines separated from the other defendants as enhancing their suspicion, Hines points
out that Wallace did not see a suspect break away from a group. We agree there is no
testimony from Wallace to this effect and the trial court erroneously attributed the
testimony about one suspect separating from the group to both Goncalves and Wallace.
Nonetheless, Wallace said it was unusual to see a group of people walking together on
Stockton Boulevard shortly after the 911 call about a large group of perpetrators. What
Wallace observed was sufficient for him to agree that it was appropriate to contact
defendants. Hines fails to demonstrate that the trial court’s error required a different
result with regard to his suppression motion where Goncalves’s testimony supported the
finding that Hines’s conduct contributed to the suspicion that Hines may be involved in
criminal activity.
20
Substantial evidence also supports the inference by the trial court that handcuffing
defendants was justified by a concern for officer safety. As we have explained, when
Goncalves and Wallace initiated the stop, there were only two officers confronting three
adult male subjects. Officers were informed that possibly 10 armed subjects were
involved in a recent violent crime and the suspects ran from the scene. In addition, the
stop occurred in a high crime area, and according to Goncalves and Gorham, there were
people in the area watching the police activity, which may have heightened the possible
danger to the officers. While there is no testimony about why defendants were
immediately handcuffed, the trial court could have reasonably inferred from the
testimony by Goncalves, Wallace and Gorham that, under the circumstances, the use of
handcuffs was related to a concern about officer safety.
II
Hines raises an ineffective assistance of counsel claim based on alleged
inconsistencies in Goncalves’s testimony at the hearing on defendants’ section 1538.5
motion and at trial. The alleged inconsistencies concern defendants’ location when
Goncalves first observed them and the statement by Goncalves that he could see
defendants avoid making eye contact with passing patrol cars.
At the hearing on defendants’ section 1538.5 motion, Goncalves testified that he
first saw four subjects walking northbound on Stockton Boulevard toward Fruitridge
Road, “[p]robably a hundred yards” south of the intersection of Stockton Boulevard and
Fruitridge Road. Goncalves did not say that the subjects were at the corner of Stockton
Boulevard and Fruitridge Road when he first saw them as Hines claims. Goncalves’s
trial testimony about where the subjects were located when he first noticed them is
consistent with his section 1538.5 hearing testimony. Goncalves said at trial that he first
saw the four subjects walking along the sidewalk on northbound Stockton Boulevard
toward Fruitridge Road, parallel to the Rite Aid drug store building. He explained that
the individuals he detained continued walking to the corner as he drove past them and
21
made a U-turn, and he detained them at the corner. Hines does not provide a record cite
showing that the Rite Aid building is not roughly 100 yards south of the intersection of
Stockton Boulevard and Fruitridge Road.
We also discern no inconsistency in Goncalves’s pretrial and trial testimony about
whether he saw defendants avoid eye contact with passing patrol cars. At the pretrial
hearing, Goncalves said the subjects did not look at passing patrol cars. In Goncalves’s
opinion, the subjects purposefully avoided making eye contact with the patrol cars
driving past them. At trial, while Goncalves admitted he could not see the whites of the
subjects’ eyes, he stated that he did not see the subjects turn their heads to look at the
passing patrol cars. The subjects looked “in a forward direction, not looking at anything
else.” Based on his experience, it appeared to Goncalves that the subjects were
intentionally avoiding notice by law enforcement officers.
We reject Hines’s ineffective assistance of counsel claim because he fails to
demonstrate any asserted inconsistency in Goncalves’s pretrial and trial testimony. As
for any inconsistency between the testimony of Goncalves and another officer, it is not
our function to determine the credibility of witnesses or to resolve conflicts in the
testimony. (People v. Lawler, supra, 9 Cal.3d at p. 160; People v. Simmons (1971)
19 Cal. App. 3d 960, 964.) We decline Hines’s invitation to find that alleged
inconsistencies in the trial testimony of Goncalves, Wallace and Gorham cast doubt on
the trial court’s 1538.5 ruling because we do not rely on evidence presented at trial to
review the propriety of a pretrial section 1538.5 order. (People v. Fiscalini, supra,
228 Cal.App.3d at p. 1644, fn. 5; People v. Neighbours, supra, 223 Cal.App.3d at
p. 1118.)
III
Hines and Ellington further argue that the trial court’s denial of their motion to
bifurcate the trial of the gang enhancement (§ 186.22, subd. (b)(1)) resulted in a denial of
22
due process and a fair trial. We address Ellington’s claim separately because his
bifurcation motion was made at his second trial.
A
The prosecution sought to admit gang evidence in the first trial to establish the
gang enhancement allegations against Hines, Byrd and Ellington. Hines moved to
bifurcate the trial of the gang enhancement, and requested an Evidence Code section 4026
hearing in relation to the proposed testimony by gang expert Brandon Luke. Hines
conceded that gang evidence was relevant to the gang enhancement, but argued that such
evidence was extremely prejudicial and constituted improper character evidence.
Following an Evidence Code section 402 hearing at which Detective Luke was the
sole witness called, the trial court denied the defense motion to bifurcate. It found the
proposed testimony by Luke was probative of motive, identity and the aiding and abetting
theory of the charged offenses, and Luke’s testimony was not more inflammatory than
the evidence relating to the charged crimes. The trial court also determined substantial
evidence supported the charged offenses such that the evidence supporting the gang
enhancement would not overwhelm an otherwise weak case and cause the jury to convict
based solely on the gang evidence. Hines now assigns various errors to the denial of his
bifurcation motion.
We review a trial court’s bifurcation decision under the deferential abuse of
discretion standard. (People v. Hernandez (2004) 33 Cal. 4th 1040, 1050-1051
6 Evidence Code section 402 provides: “(a) When the existence of a preliminary fact is
disputed, its existence or nonexistence shall be determined as provided in this article. [¶]
(b) The court may hear and determine the question of the admissibility of evidence out of
the presence or hearing of the jury; but in a criminal action, the court shall hear and
determine the question of the admissibility of a confession or admission of the defendant
out of the presence and hearing of the jury if any party so requests. [¶] (c) A ruling on
the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a
separate or formal finding is unnecessary unless required by statute.”
23
(Hernandez).) Hines and the Attorney General agree that our review must be based on
the record before the trial court at the time of its ruling. (People v. Catlin (2001)
26 Cal. 4th 81, 110 [motion to sever].) Hines bears the burden of clearly establishing a
substantial danger of undue prejudice to him in conducting a unitary trial. (Hernandez,
supra, 33 Cal.4th at p. 1051.)
While gang evidence carries a potential for prejudice (People v. Albarran (2007)
149 Cal. App. 4th 214, 223 (Albarran)), the California Supreme Court has explained that a
“criminal street gang enhancement is attached to the charged offense and is, by
definition, inextricably intertwined with that offense.” (Hernandez, supra, 33 Cal.4th at
p. 1048.) “Evidence of the defendant’s gang affiliation--including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like--can help prove identity, motive, modus operandi, specific intent,
means of applying force or fear, or other issues pertinent to guilt of the charged crime.
[Citations.] To the extent the evidence supporting the gang enhancement would be
admissible at a trial of guilt, any inference of prejudice would be dispelled, and
bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.)
Here, as the trial court found, gang evidence was admissible at the trial of the
substantive offenses because it is relevant to prove a motive for the charged crimes,
defendants’ identities as the perpetrators of these crimes, and aiding and abetting liability.
In other words, gang evidence is not relevant to the gang enhancement only.
A trial court does not abuse its discretion by denying the bifurcation of a gang
enhancement when gang evidence reveals a motive behind a crime committed by gang
members. (Hernandez, supra, 33 Cal.4th at pp. 1051, 1053; see generally People v.
Carter (2003) 30 Cal. 4th 1166, 1194-1196; People v. Williams (1997) 16 Cal. 4th 153,
193-194; People v. Memory (2010) 182 Cal. App. 4th 835, 858 (Memory); People v.
Samaniego (2009) 172 Cal. App. 4th 1148, 1167-1168; People v. Martinez (2003)
113 Cal. App. 4th 400, 413; People v. Funes (1994) 23 Cal. App. 4th 1506, 1518; People v.
24
Olguin (1994) 31 Cal. App. 4th 1355, 1369-1370.) While the prosecution is not required
to prove a motive for the charged crimes, motive is relevant to a defendant’s guilt or
innocence of those crimes. (Hernandez, supra, 33 Cal.4th at p. 1053; People v. Bordelon
(2008) 162 Cal. App. 4th 1311, 1321.)
Unlike Albarran, supra, 149 Cal. App. 4th 214, a case Hines relies upon, the
prosecution in this case presented evidence of gang motive. The prosecution claimed that
defendants were members of the Ridezilla gang and they targeted the victims’ house
because they believed a drug dealer lived there. The prosecution made an offer of proof
at the Evidence Code section 402 hearing that Mother and Daughter reported several
occasions wherein strangers came to their house and asked for drugs. One reasonable
inference from this proffered testimony is that the victims’ house was reputed to be a
drug dealer’s house. Luke’s testimony at the Evidence Code section 402 hearing
explained why defendants would attack a house that was reputed to be a drug dealer’s
house. Luke opined that defendants were members or associates of Ridezilla and
Ridezilla targeted drug dealers to get money and respect for the gang and to control and
expand the gang’s territory.7 He said most gang members knew where drug dealers
conducted business. Luke’s explanation is consistent with the preliminary hearing
evidence that several males, all carrying guns, rushed into the victims’ house, referred to
each other as “Blood,” and repeatedly asked Daughter where the money was, suggesting
that they expected to find money in the house and appeared ready to meet a show of
7 Hines challenges the basis for Luke’s opinion that the attack against the victims’ house
was a drug “ripoff” on the ground that the opinion was based on the asserted fact that
several individuals inquired about buying crack at the victims’ house. While we found
no evidence in the record relating to inquiries about crack, an offer of proof was made to
the trial court that Mother and Daughter reported that strangers came to their home and
asked for drugs. Luke’s testimony that Ridezilla targeted drug dealers was not limited to
drug dealers who sold cocaine.
25
lethal force.8 Bifurcation would have denied the prosecution the ability to present
evidence of a motive for the charged crimes.
While Luke did not provide the details of cases where Ridezilla members
committed drug “ripoffs,” he explained that drug dealers did not report crimes to law
enforcement authorities. Luke had been a sworn peace officer for 14 years. He worked
as an undercover officer for seven years, purchasing narcotics from street level dealers,
some of whom were gang members. He had daily contact with members of Black gangs
and spoke with gang members and victims of gang crimes about gang culture and
activities. At the time of the evidentiary hearing, he had been a gang detective, assigned
to Black gangs in Sacramento County, for four years. Prior to this assignment, he worked
as a patrol officer and then a problem-oriented police officer and responded to gang-
related crimes. He discussed gang trends and activities with other law enforcement
officers, attended conferences on these subjects, and reviewed reports of gang-related
cases and contacts by other officers. He was familiar with the Ridezilla gang from his 15
to 20 direct contacts with Ridezilla members, investigation of crimes involving Ridezilla
members, and review of reports by and discussions with other officers about Ridezilla
and its activities. Luke’s testimony laid sufficient foundation for his opinion that
Ridezilla targeted drug dealers. (People v. Gardeley (1996) 14 Cal. 4th 605, 618-620
[gang expert may rely on conversations with gang members, information from other law
enforcement officers and agencies, and personal investigations of gang-related crimes];
8 Hines argues that Luke’s testimony concerning the motive for the charged crimes is
inadmissible because it is testimony about the subjective knowledge and intent of the
perpetrators. This claim is forfeited because Hines did not object on such ground at the
Evidence Code section 402 hearing. (People v. Valdez (1997) 58 Cal. App. 4th 494, 505;
People v. Gutierrez (1993) 14 Cal. App. 4th 1425, 1434.) Before Luke testified, Hines’s
counsel said any testimony by Luke about what a gang member was thinking would be
inadmissible. However, Hines did not raise the objection during Luke’s testimony or
during argument before the trial court ruled on the defense bifurcation motion.
26
People v. Duran (2002) 97 Cal. App. 4th 1448, 1463, 1465 [finding gang expert’s
testimony about gang’s primary activities, which was based on conversations with gang
members, personal investigation of crimes committed by gang members, and information
obtained from colleagues, sufficient to prove the primary activity element of a section
186.22 allegation]; People v. Hill (2011) 191 Cal. App. 4th 1104, 1121-1122.)
Luke also testified at the Evidence Code section 402 hearing that individuals gain
stature within the gang by committing crimes. In fact, members are expected to be active
in the gang and its activities and to support fellow gang members. Members who do not
“represent[]” the gang become targets. This testimony is probative of defendants’ mental
state and might explain why defendants committed or helped to commit the charged
offenses. (People v. Zepeda (2001) 87 Cal. App. 4th 1183, 1207-1209 [gang expert may
testify that shooting could be motivated by desire to bolster the shooter’s reputation
within the gang and the gang’s notoriety in the community].)
Gang evidence is also relevant to defendants’ identities as perpetrators of the
charged crimes, a critical issue in the case. Evidence that Ridezilla targeted drug dealers
is relevant to identity because, as we explained, the prosecution claimed that defendants
were members of Ridezilla and the burglary of the victims’ house was a planned “drug
ripoff.” During the incident, the intruders referred to each other as “Blood.” Luke
explained that defendants’ gang was primarily a Bloods clique, and Bloods gang
members referred to each other as “Blood” during the commission of crimes to conceal
their names. Luke’s testimony about prior police contacts and the photographs retrieved
from Hines’s cell phone showed defendants’ connection with the Bloods gang and the
prior association between Hines, Ellington and Johnson, who were found walking
together in close proximity to the victims’ house minutes after Daughter reported that a
group of intruders fled from the house. Evidence concerning defendants’ identities as the
perpetrators of the charged crimes bolstered the evidence presented at the preliminary
27
hearing that Daughter identified defendants as her attackers, which identification
defendants vigorously challenged.
Gang evidence is also relevant to the prosecution’s aiding and abetting theory.
Luke testified that the primary activity of Ridezilla was the commission of certain crimes,
and gang members were expected to participate in crimes and to support fellow gang
members. Luke described crimes committed by two or more Ridezilla members acting
together. He opined that Ridezilla members committed the charged crimes for the benefit
of the gang. Evidence of gang culture and activity and the prior association between
defendants tended to prove the prosecution’s claim that if a defendant was not a direct
perpetrator, he knew his fellow gang members intended to commit the charged offenses,
he intended to assist in the commission of such offenses, and he did, in fact, assist the
commission of the offenses. (Hernandez, supra, 33 Cal.4th at p. 1051 [testimony about
alliances between two gangs was relevant to motive and intent behind robbery because it
explained why defendants acted together to commit the crime]; People v. Burnell (2005)
132 Cal. App. 4th 938, 947 [gang evidence was relevant to aiding and abetting and
conspiracy theories].)
Hines states the evidence presented at the preliminary hearing showed that
Johnson and Ellington did not personally commit any sexual offense, but could have been
liable for such crimes under the natural and probable consequences doctrine. Hines goes
on to argue that gang evidence was cumulative and “added little to further the
prosecutor’s objective” because it provided no additional support for holding Johnson
and Ellington criminally liable for a sexual offense under the natural and probable
consequences doctrine. We are not persuaded by this argument. The prosecution relied
on the direct aiding and abetting theory of liability. As we have explained, the proposed
gang evidence is probative of whether those defendants who did not personally commit a
charged offense are nevertheless liable as aiders and abettors because they knew of the
direct perpetrator’s unlawful intent, intended to assist in achieving those unlawful ends,
28
and did in fact assist in committing the crime. (People v. Perez (2005) 35 Cal. 4th 1219,
1225.)
Even if some of the evidence supporting the gang enhancement would be
inadmissible at a trial of the charged crimes, a trial court may still deny bifurcation.
(Hernandez, supra, 33 Cal.4th at p. 1050.) Conservation of judicial resources is a
countervailing factor which may be considered in ruling on a motion to bifurcate. (Ibid.)
Here, if the gang enhancement had been bifurcated, the witnesses, other than Luke, who
testified about gang involvement--Daughter, Son, Mother, their neighbor, and Deputy
Brett Schannep--may have been required to return to testify and be subjected a second
time to cross-examination by four defense attorneys. Such a procedure would not have
helped conserve judicial resources.
When gang evidence is relevant to the gang enhancement only, bifurcation is
warranted if the gang evidence is unduly prejudicial. (Hernandez, supra, 33 Cal.4th at
pp. 1049, 1051.) But Hines fails to show undue prejudice. There is no danger of undue
prejudice with regard to three of the predicate crimes about which Luke testified because
Hines was not involved with those crimes. (People v. Funes, supra, 23 Cal.App.4th at
p. 1519 [evidence of prior gang conduct not involving defendant was less prejudicial to
defendant].) And there is no evidence that Hines was responsible for the death of the
victim of the fourth predicate crime. (Hernandez, supra, 33 Cal.4th at p. 1050 [whether
defendant may have escaped punishment for an uncharged offense is a relevant factor in
deciding the propriety of bifurcation decision].) Hence, evidence of the predicate crimes
did not pose a substantial danger of swaying the jury to convict Hines regardless of
whether he committed the charged crimes.
Further, nothing in Luke’s testimony about the circumstances leading to the
conviction of other Ridezilla members for the four predicate offenses and about prior
police contacts with defendants indicates that such evidence is unduly prejudicial in
comparison to the facts of the group home invasion robbery, attempted rape of Daughter,
29
and armed assault of Son such that the uncharged gang conduct would influence the jury
to convict Hines regardless of his guilt. We do not concur with Hines’s attempt to
downplay the harm inflicted upon Daughter and her family or the statement that no one
was wounded as a result of defendants’ crimes.
We also do not agree with Hines that the trial court applied an incorrect standard
in assessing prejudice. The trial court, in considering the inflammatory nature of the
underlying charged crimes in relation to the gang enhancement, said: “I can’t say that
there is any difference between the two. The charges and the evidence that appears to
support those charges indicate that it was a horrible crime and probably has an equivalent
inflammatory allegation when you compare that the crime was committed by people for
the benefit of a criminal street gang so that factor, I don’t think, militates in favor of
bifurcation.” The trial court added, “I do not feel that the gang expert’s testimony is of
such a nature that it would inflame the jury and cause the jury to convict purely as an
emotional response to the gang testimony. That would be what is meant by prejudicial.
[¶] I think the gang expert’s testimony has incriminating value. Certainly there is a
prejudicial aspect. There is an aspect of the gang testimony that would tend to evoke an
emotional response, but that same thing exists with respect to the underlying charges.”
The trial court properly considered whether the gang evidence was unduly prejudicial.
(Hernandez, supra, 33 Cal.4th at pp. 1049, 1051.)
Citing Memory, supra, 182 Cal. App. 4th 835, Hines urges that admission of gang
evidence created a risk the jury would infer that he had a criminal disposition and was,
therefore, guilty of the charged offenses. Evidence of a defendant’s criminal disposition
is inadmissible to prove he committed a specific criminal act. (Evid. Code, § 1101.)
However, Memory is factually distinguishable. In Memory, gang-type evidence of the
Jus Brothers motorcycle club, of which the defendants in that case were members, was
offered to show a motive for the defendants’ conduct during a fight resulting in the
stabbing death of a victim and the stabbing of two others. (Memory, supra,
30
182 Cal.App.4th at p. 858.) The prosecution offered the gang-type evidence to prove that
because the defendants were members of Jus Brothers, they were required to carry knives
and fight when challenged. (Ibid.) But, unlike the case before us, there was no evidence
in Memory to support the prosecution’s claim about the group’s practice. (Id. at pp. 858-
860.) Without such evidence, evidence about the Jus Brothers allowed an unreasonable
inference that the defendants had a criminal disposition to fight with deadly force when
confronted. (Ibid.) As we have explained, the prosecution in this case presented
evidence of gang motive.
In any event, there is no prejudice. The jury did not convict defendants of all
charged offenses and did not find all of the enhancement allegations to be true, even
though gang evidence was presented to it. Additionally, absent contrary indication, we
presume the jury understood and followed the trial court’s repeated instruction to
consider evidence of gang activity for limited purposes only. (People v. Yeoman (2003)
31 Cal. 4th 93, 139 [“Jurors are routinely instructed to make similarly fine distinctions
concerning the purposes for which evidence may be considered, and we ordinarily
presume they are able to understand and follow such instructions”]; People v. Waidla
(2000) 22 Cal. 4th 690, 725 [“The presumption is that limiting instructions are followed
by the jury”]; People v. Mickey (1991) 54 Cal. 3d 612, 689, fn. 17 [“The crucial
assumption underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions”].) The trial court expressly told the jury it
may not conclude from the gang evidence that a defendant was a person of bad character
or that he had a disposition to commit crime.
Regardless of the gang evidence, the evidence establishing Hines’s guilt was
strong. Mother and Daughter identified Hines as one of the perpetrators. Mother said
she definitely recognized Hines’s face. Daughter told deputies she was 100 percent sure
Hines was one of the intruders. Mother and Daughter did not waver at trial in their
certainty about Hines’s identity as one of the intruders. Hines was found in Johnson and
31
Byrd’s company in the vicinity of the victims’ house minutes after Daughter reported the
crimes. Physical evidence obtained at the victims’ house tied Johnson to the charged
crimes. Further, Daughter specifically recalled the distinctive shoes worn by Byrd from
the attack against her and she said Byrd was the man who tried to rape her. Thus, Hines
fails to demonstrate harm.
B
Like Hines, Ellington claims the trial court abused its discretion by denying his
motion to bifurcate the gang enhancement trial.
In moving to bifurcate the gang enhancement at his second trial, Ellington relied
on Hines’s bifurcation motion from the first trial. Ellington did not request an
evidentiary hearing before the trial court ruled on his bifurcation motion. He argued the
gang evidence was not relevant to guilt because there was insufficient evidence that the
charged crimes were related to a “drug ripoff” or gangs, and any marginal purpose for
presenting gang evidence was outweighed by the prejudice created by such evidence.
Ellington also claimed bifurcation would result in a trial of only one day or less after a
conviction.
The trial court denied Ellington’s motion, finding that the probative value of the
gang evidence outweighed its prejudicial effect and that CALCRIM No. 1403 was an
appropriate limiting instruction. The trial court instructed the jury, pursuant to
CALCRIM No. 1403, that it may consider evidence of gang activity only for the
following limited purposes: whether Ellington acted with the intent and knowledge
required for the gang enhancements; whether he had a motive to commit the charged
crimes; whether he aided and abetted the charged crimes; to evaluate the credibility of a
witness; and to consider the basis for an expert witness’s opinion. The jury was
instructed that it may not consider evidence of gang activity for any other purpose and
may not conclude from this evidence that Ellington was a person of bad character or had
a disposition to commit crimes.
32
Ellington contends on appeal that gang evidence has marginal or no relevance to
issues of motive and identity. Not so. At Ellington’s retrial, the prosecution claimed that
Ellington was a member of the Ridezilla gang and he and his fellow gang associates
targeted the victims’ house because they believed a drug dealer lived there. The
prosecution further argued that Ellington aided and abetted the sexual assault committed
by his fellow gang members. Like Hines, Ellington denied he was one of the
perpetrators. Ellington claimed he did not aid and abet the charged crimes because he
was not present during the commission of these crimes and, even if he was present, he
had nothing to do with the charged sexual offenses. For reasons we have explained, gang
evidence is admissible to prove motive, identity, and aiding and abetting liability.
Accordingly, any inference of prejudice is dispelled and bifurcation is not required.
(Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
The cases Ellington cites do not address bifurcation of gang enhancement
allegations and are inapposite because in those cases gang evidence was not probative of
identity or motive and the appellate court found the gang evidence should have been
excluded under Evidence Code section 352 due to undue consumption of time, or a
substantial danger of undue prejudice, confusing the issues or misleading the jury.
(People v. Cardenas (1982) 31 Cal. 3d 897, 904; Memory, supra, 182 Cal.App.4th at
pp. 858-860; Albarran, supra, 149 Cal.App.4th at pp. 227-228; People v. Maestas (1993)
20 Cal. App. 4th 1482, 1485, 1494-1498; People v. Perez (1981) 114 Cal. App. 3d 470,
477-479.)
Ellington also claims evidence of the predicate offenses and the 2007 robbery and
assault of Raven Lewis by Ellington and two Bloods gang members are inadmissible
under Evidence Code section 1101, subdivision (b) to establish his identity as a
33
perpetrator of the charged crimes.9 But the predicate offenses and the Lewis incident
were not offered to show Ellington’s identity as one of the perpetrators of the charged
crimes. As Ellington’s counsel pointed out, Luke’s testimony about the predicate
offenses showed that Ridezilla was a criminal street gang. The Lewis incident was
offered to show that Ellington was an active Ridezilla member and that he committed the
charged offenses for the benefit of the gang.
We also do not find persuasive Ellington’s argument that the gang evidence was
so unduly prejudicial as to sway the jury to convict him on counts one through four, but
not so prejudicial as to compel the jury to also convict him on counts five and six. As for
the predicate offenses, the danger of prejudice was not substantial because these crimes
did not involve Ellington. However, even if some of the gang evidence might be
excluded under Evidence Code section 352 as unduly prejudicial, a court may still deny
bifurcation. (Hernandez, supra, 33 Cal.4th at p. 1050.) In addition, we are not convinced
that a bifurcated proceeding would have resulted in judicial economy.
Hines and Ellington have not demonstrated error in the denial of their motions to
bifurcate the trial of the gang enhancement.
IV
Ellington contends the trial court erred in denying his motion to exclude Luke’s
testimony, at Ellington’s retrial, about a 2007 attack upon Raven Lewis by a group
including Ellington and two Bloods gang members.
Ellington made a pretrial motion to preclude Luke from testifying about the Lewis
incident on multiple grounds: (1) the probative value of the evidence was substantially
outweighed by the probability that its admission will necessitate undue consumption of
9 Evidence that a person committed a crime or other act may be admissible when
relevant to prove some fact (such as motive, intent, knowledge, or identity) other than
criminal disposition. (Evid. Code, § 1101, subd. (b).)
34
time or create a substantial danger of undue prejudice, confusing the issues, or misleading
the jury, (2) Luke’s testimony was based on multiple hearsay and insufficient
information, (3) the evidence was cumulative, and (4) the evidence was minimally
relevant. The trial court held an evidentiary hearing to decide Ellington’s objections.
Luke testified at the evidentiary hearing, based on the report of the investigating
detective and Luke’s conversation with that detective, that Ellington participated in the
robbery and beating of Lewis in 2007. According to Luke, the incident began as an
altercation between two groups, one including Lewis and another including the ex-
girlfriend of Lewis’s boyfriend. During the incident, Ellington and other males kicked
Lewis while she was on the ground, and Ellington yelled, “This is Zilla, Bitch” while
kicking Lewis. A female took Lewis’s purse, which was next to Lewis in her car when
the attack began, while the males beat Lewis. Lewis identified Ellington as one of her
attackers by his moniker Zillamaine and his photograph. Lewis told authorities Ellington
was a Ridezilla gang member. Lewis also reported that two of her attackers were Bloods
gang members. The investigating detective’s report verified that these two individuals
were validated Bloods gang members.
The trial court denied Ellington’s motion. It found Luke’s testimony about the
Lewis incident was based on sufficiently reliable and specific information and sources
that were proper bases for expert opinion.
Ellington argues that evidence about the Lewis incident should have been
excluded because it had the potential to confuse the jury. He claims Luke’s testimony
left the jury with the mistaken impression that Ellington robbed Lewis. We review the
trial court’s ruling for abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at
p. 724.)
Luke testified that, during the beating of Lewis, a female subject removed Lewis’s
purse from the seat of Lewis’s car. There was no testimony that Ellington took Lewis’s
purse or that he knew someone intended to rob Lewis. We cannot discern from Luke’s
35
testimony how the jury could have been confused about Ellington’s role in the Lewis
incident. While it is true that the prosecution said during its closing statement that
Ellington robbed Lewis, that statement was brief and we presume the jury followed the
trial court’s instruction that what the attorneys said in closing arguments was not
evidence. (People v. Yeoman, supra, 31 Cal.4th at p. 139; People v. Waidla, supra,
22 Cal.4th at p. 725; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.)
Ellington also claims Luke’s testimony about the Lewis incident should have been
excluded because the report upon which the testimony is based is too speculative and
unreliable to support an expert opinion. But Luke’s testimony about the Lewis incident
does not show that the report is speculative or unreliable. The report appears to contain a
sufficiently detailed, firsthand account of what happened during the attack by the victim,
who personally knew Ellington and the other attackers.
Expert testimony may be based on matter made known to the expert at or before
the hearing, including inadmissible hearsay, so long as the matter is of a type that is
reasonably relied upon by experts in the particular field in forming their opinions. (Evid.
Code, § 801, subd. (b); People v. Catlin, supra, 26 Cal.4th at p. 137; People v. Gardeley,
supra, 14 Cal.4th at pp. 618-619.) Information obtained from other law enforcement
officers and agencies is a commonly accepted basis for a gang expert’s opinion
testimony. (People v. Gonzalez (2006) 38 Cal. 4th 932, 945; People v. Gardeley, supra,
at pp. 619-620; People v. Williams (2009) 170 Cal. App. 4th 587, 622; People v. Martinez
(2008) 158 Cal. App. 4th 1324, 1330-1331.) “And because . . . an expert witness [is
permitted] to ‘state on direct examination the reasons for his opinion and the matter . . .
upon which it is based,’ an expert witness whose opinion is based on such inadmissible
matter can, when testifying, describe the material that forms the basis of the opinion.”
(People v. Gardeley, supra, 14 Cal.4th at p. 618.) It was proper for Luke to testify about
the Lewis incident and to rely on the police report for the Lewis incident in rendering an
expert opinion.
36
In addition, Ellington says evidence about the Lewis incident was unnecessary to
the prosecution’s case because there was other evidence linking Ellington to Ridezilla.
As we have explained, the prosecution sought to admit the testimony about the Lewis
incident to establish the gang enhancement allegation; in particular, that Ellington was an
active member of Ridezilla. The Lewis incident showed that Ellington committed a
crime in 2007 during which he announced his affiliation with Ridezilla. This evidence
was not unnecessary to the prosecution’s gang enhancement case because defense
counsel suggested to the jury that Ellington did not commit the charged crimes for the
benefit of the Ridezilla gang because he had no involvement with Ridezilla after 2005.
The conclusion Ellington asked the jury to draw would have undercut the prosecution’s
gang enhancement case.
Ellington further claims that evidence concerning the Lewis incident should have
been excluded as unduly prejudicial because, like the charged crimes against Daughter,
the Lewis incident involved an assault of a woman. While both the charged crimes and
the Lewis incident involve female victims, the Lewis incident does not involve a sexual
offense and the prosecution did not claim that Ellington personally engaged in the assault,
attempted rape or sexual battery of Daughter. The two incidents are not so similar as to
create a risk of undue prejudice.
Under these circumstances, the trial court could have reasonably concluded that
the probative value of the testimony about the Lewis incident outweighed any prejudice.
Additionally, as instructed, the jury would have considered the Lewis incident for the
limited purpose of evaluating Luke’s opinion that Ellington was a Ridezilla gang
member. The jury would not have considered the facts of the Lewis incident to
determine that Ellington had a disposition for assaulting women.
37
V
Ellington challenges the denial of his motion to suppress the in-field
identifications by Mother and Daughter. Ellington argues the show-ups were unduly
suggestive and unreliable.
We review de novo the trial court’s ruling on the constitutionality of an
identification procedure and uphold the factual findings by the trial court if supported by
substantial evidence. (People v. Kennedy (2005) 36 Cal. 4th 595, 608–609, overruled on
other grounds in People v. Williams (2010) 49 Cal. 4th 405, 458–459; People v. Contreras
(1993) 17 Cal. App. 4th 813, 819.) A defendant challenging an identification procedure
bears the burden of establishing (1) that the procedure used is unduly suggestive and
unnecessary, and (2) if so, that the identification by the witness is unreliable under the
totality of the circumstances, taking into account such factors as the witness’s opportunity
to view the perpetrator at the time of the crime, the witness’s degree of attention, the
accuracy of the witness’s prior description of the suspects, the level of certainty the
witness demonstrated at the show-up, and the time between the crime and the show-up.
(People v. Ochoa (1998) 19 Cal. 4th 353, 412 (Ochoa).) The defendant must establish
“unfairness as a demonstrable reality, not just speculation.” (People v. DeSantis (1992)
2 Cal. 4th 1198, 1222.) Our task is to determine whether there is a very substantial
likelihood of irreparable misidentification under the totality of the circumstances to
warrant reversal of the conviction. (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107,
116 [53 L. Ed. 2d 140, 147-149, 155]; People v. Cunningham (2001) 25 Cal. 4th 926, 990.)
Ellington does not contend that the in-field show-ups were unnecessary. Such
contention would have been meritless. As the trial court found, officers detained four
subjects they suspected may have been involved in the reported crimes. An immediate
show-up would allow officers to promptly release Ellington if witnesses did not identify
him as one of the perpetrators and to quickly resume the search for the real perpetrators
while they may still be in the area. (People v. Cowger (1988) 202 Cal. App. 3d 1066,
38
1071-1072.) Ellington, thus, cannot satisfy the first prong of the Ochoa test. (Ochoa,
supra, 19 Cal.4th at p. 412.)
Nonetheless, Ellington says the manner in which the show-ups were conducted
was unduly suggestive. He says Mother and Daughter viewed him after positively
identifying two other suspects; therefore, Mother and Daughter were likely influenced by
Ellington’s association with the other defendants. Ellington also complains that he was
handcuffed, officers shined spotlights on him, and multiple patrol cars were present
during the show-up. But the procedures of which Ellington complains, while they may
be suggestive, have been approved by courts. (Stovall v. Denno (1967) 388 U.S. 293,
294, 296 [18 L. Ed. 2d 1199, 1202-1203] [defendant was handcuffed to one of five police
officers during the show-up]; In re Carlos M., supra, 220 Cal.App.3d at pp. 378, 386
[defendant was handcuffed when viewed by the victim and was shown immediately after
the victim had positively identified another suspect]; In re Richard W. (1979)
91 Cal. App. 3d 960, 969-970 [defendant sat handcuffed in the back of a police car, with
officers standing around]; People v. Craig (1978) 86 Cal. App. 3d 905, 914 [defendants
were inside a police car and officers stood around the car]; People v. Anthony (1970)
7 Cal. App. 3d 751, 759, 764 [officers drove defendant and his companion to the scene of
the robbery in a marked police vehicle, handcuffed, and asked the witness “ ‘which was
the one that came in’ ” and committed the robbery]; People v. Gomez (1976)
63 Cal. App. 3d 328, 335-337 [defendant stood outside a patrol car, was handcuffed and
accompanied by two officers].)
“[T]he mere presence of handcuffs on a detained suspect is not so unduly
suggestive as to taint the identification.” (In re Carlos M., supra, 220 Cal.App.3d at
p. 386.) The use of spotlights made it possible for the witnesses to see Ellington in the
dark. Ellington fails to show that the use of spotlights was unduly suggestive. Ellington
was not required to wear a mask during the show-up, which would arguably be
suggestive. Mother and Daughter were admonished that the persons they would view
39
may or may not be the perpetrators and to not let the fact that the subjects were
handcuffed affect their identification or their ability to keep an open mind. In addition,
Mother and Daughter were taken to the detention site separately, and Mother did not
speak with Daughter after Mother identified Ellington, eliminating the risk of any
improper influence. In contrast, in People v. Bisogni (1971) 4 Cal. 3d 582, 586 and
People v. Sandoval (1977) 70 Cal. App. 3d 73, 80, the cases Ellington compares to his, the
first witness conferred with the second witness after making a positive identification.
Ellington also claims that Deputy Jack Noble influenced Daughter’s identification
by telling her the suspects “matched the description.” An identification procedure
violates due process protections when the state improperly suggests, in advance of the
identification by the witness, the identity of the person suspected by the police.
(People v. Cunningham, supra, 25 Cal.4th at p. 990; In re Carlos M., supra,
220 Cal.App.3d at p. 387.) Noble told Daughter “there were some subjects that were
detained that matched the description.” The trial court did not find to the contrary. In
any event, similar statements have been found not to violate due process. (People v.
Ballard (1969) 1 Cal. App. 3d 602, 605 [police told victim they had two suspects who
“ ‘fit the description’ ” she had given them of the robbers]; People v. Gomez, supra,
63 Cal.App.3d at pp. 335-337 [victim was told there was a suspect the police wanted her
to look at]; People v. Contreras, supra, 17 Cal.App.4th at pp. 817, 820 [officer said two
suspects were in custody during the lineup]; but see People v. Sandoval, supra,
70 Cal.App.3d at p. 85 [finding statement by police officer to the victim that police would
bring “the suspect” through the hallway improperly suggested that defendant was the
perpetrator].) While Noble told Daughter that defendants “matched the description,” he
also admonished her that defendants may or may not be “involved in the incident” and to
keep an open mind. In any event, anyone asked to view a show-up would naturally
assume the police have a suspect. (See People v. Avila (2009) 46 Cal. 4th 680, 699.) This
circumstance does not render an identification procedure suggestive. (Ibid.) There is
40
nothing in the record to indicate that officers encouraged Daughter to identify Ellington
as one of the perpetrators. And Mother, who was not admonished that Ellington matched
the description of the perpetrators, also identified Ellington.
Even if the show-up had been impermissibly suggestive, the identifications by
Mother and Daughter were sufficiently reliable for admission at trial under the totality of
the circumstances. Ellington concedes the short duration between the crimes and the
show-ups cuts against his claim that the show-ups are unreliable. That concession is
proper and makes the delayed identification in People v. Bisogni, supra, 4 Cal. 3d 582, a
case Ellington relies upon, distinguishable. The identifications here were more likely to
be accurate because they were conducted close in time to the crimes, when the witnesses’
memory of what the suspects looked like was still fresh. (In re Carlos M., supra,
220 Cal.App.3d at p. 387; People v. Martinez (1989) 207 Cal. App. 3d 1204, 1219;
People v. Cowger, supra, 202 Cal.App.3d at pp. 1071-1072.)
Mother and Daughter had an opportunity to view the suspects. Mother saw the
suspects as she drove down a very long and narrow driveway. She took note of the
suspects’ clothing. Hence, at the show-up, she noticed that two of the defendants were
not wearing the black hoodies she saw the suspects wearing earlier that evening. Mother
recognized Ellington’s sweater and was sure he was one of the individuals she saw
walking down her driveway, and she remembered that Ellington pulled his sweater over
the bottom of his mouth when she saw him on her driveway.
Daughter’s assailants wore masks and while distraught, Daughter told the 911
operator she did not get a good look at her attackers because they were punching her in
the eye. But Daughter observed the suspects for one to two minutes upon their entry into
her home. She observed her attackers sufficiently to provide a general description of
them (Black males in their 20’s and of average build) and their clothing (dark, hooded
sweatshirts and dark colored jeans) before the show-up. She had calmed down by the
time of her show-up and was unequivocal in her identifications. She was “100 percent
41
certain” that Hines was the person who punched her in the face, was certain that Johnson
was one of the persons who entered her house, and noted the distinctive shoes that Byrd
wore. She also positively identified Ellington as one of the men who came into and
ransacked her house. Although Daughter was injured, there is no evidence that her
injuries prevented her from seeing Ellington at the show-up or remembering what her
assailants looked like. Mother and Daughter separately identified Ellington as one of the
culprits.
Viewing the totality of the circumstances, Ellington has not met his burden of
establishing a substantial likelihood of misidentification.
VI
Ellington claims the trial court erred during his retrial by denying his section
1118.1 motion10 regarding count five (assault with intent to commit rape), because there
is insufficient evidence to support retrial on counts five and six (sexual battery). The
Attorney General responds that because Ellington was not convicted of the crimes
charged in counts five and six, his claim is not ripe for appeal and must be dismissed.
We find merit in the Attorney General’s position.
The right of appeal is statutory, and an appeal from any judgment or order must be
expressly authorized by the Constitution or a statute. (People v. Mazurette (2001)
24 Cal. 4th 789, 792; 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
Appeal, § 5, p. 270.) Section 1237 provides: “An appeal may be taken by the defendant:
10 Section 1118.1 states: “In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on either side and before the
case is submitted to the jury for decision, shall order the entry of a judgment of acquittal
of one or more of the offenses charged in the accusatory pleading if the evidence then
before the court is insufficient to sustain a conviction of such offense or offenses on
appeal. If such a motion for judgment of acquittal at the close of the evidence offered by
the prosecution is not granted, the defendant may offer evidence without first having
reserved that right.”
42
[¶] (a) From a final judgment of conviction except as provided in Section 1237.1 and
Section 1237.5. A sentence, an order granting probation, or the commitment of a
defendant for insanity, the indeterminate commitment of a defendant as a mentally
disordered sex offender, or the commitment of a defendant for controlled substance
addiction shall be deemed to be a final judgment within the meaning of this section.
Upon appeal from a final judgment the court may review any order denying a motion for
a new trial. [¶] (b) From any order made after judgment, affecting the substantial rights
of the party.”
The jury did not reach a verdict on counts five and six against Ellington, and the
trial court declared a mistrial on those counts. Therefore, there is no judgment on those
counts for this court to review. Section 1237.1 (error in calculating presentence custody
credits) and 1237.5 (appeal from conviction upon plea of guilty or nolo contendre or
revocation of probation following an admission of violation) do not apply. It has also
been held that an order denying a section 1118.1 motion for acquittal is not an appealable
order. (People v. Rocovich (1969) 269 Cal. App. 2d 489, 490; People v. Aguilar (1959)
174 Cal. App. 2d 662, 663.)
Relying on Richardson v. United States (1984) 468 U.S. 317 [82 L. Ed. 2d 242]
(Richardson) and People v. Hatch (2000) 22 Cal. 4th 260 (Hatch),11 Ellington urges us to
consider his claim on the merits rather than require him to wait for the People to refile
charges against him and then seek relief by way of a petition for habeas corpus. In
11 Hatch, supra, 22 Cal. 4th 260, involved an appeal by the People of an order dismissing
a case pursuant to section 1385 after a mistrial was declared when the jury deadlocked on
all counts. (Id. at p. 266.) The trial court dismissed the case because it believed no
reasonable jury would convict the defendant. (Ibid.) One of the issues before the
California Supreme Court was whether a section 1385 dismissal for legal insufficiency
was appealable under section 1238. Section 1238 authorizes an appeal by the people of
enumerated orders, including a dismissal order. But the Supreme Court did not reach that
issue. (Id. at pp. 267-268, 271, 276.)
43
Richardson, the defendant moved for a judgment of acquittal at the close of the
prosecution’s case on the ground that the government had failed to introduce sufficient
evidence to warrant a finding of guilt beyond a reasonable doubt. (Richardson, supra,
468 U.S. at p. 318 [82 L.Ed.2d at p. 246].) The motion was denied. (Ibid.) The jury then
acquitted the defendant on one count and was unable to reach a verdict on the other
counts. (Id. at pp. 318-319 [82 L.Ed.2d at p. 246].) The trial court declared a mistrial
and denied the defendant’s renewed motion for a judgment of acquittal and motion to bar
retrial based on the double jeopardy clause of the federal Constitution on insufficiency of
the evidence grounds. (Id. at p. 319 [82 L.Ed.2d at pp. 246-247].) The appellate court
dismissed the appeal from the rulings for lack of jurisdiction under Title 28 of the United
States Code, section 1291, which provides for appeals from “final decisions.” (Ibid.
[82 L.Ed.2d at p. 247].) The United States Supreme Court, however, held that the
collateral order exception to the requirement of a “final decision” in Title 28 of the
United States Code, section 1291, permitted an interlocutory review of the double
jeopardy claim asserted by the defendant; the defendant sought review of the sufficiency
of the evidence at his first trial as a necessary component of his separate claim of double
jeopardy. (Id. at pp. 320-322 [82 L.Ed.2d at pp. 247-249].)
Richardson is inapposite because Ellington does not raise a colorable double
jeopardy claim and nothing in the record in this case shows that Ellington will be retried
on count five or six. (Richardson, supra, 468 U.S. at p. 322 [82 L.Ed.2d at pp. 248-
249].) The Supreme Court in Richardson held that the “trial court’s declaration of a
mistrial following a hung jury is not an event that terminates the original jeopardy to
which [a defendant is] . . . subjected. The Government, like the defendant, is entitled to
resolution of the case by verdict from the jury, and jeopardy does not terminate when the
jury is discharged because it is unable to agree. Regardless of the sufficiency of the
evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his
retrial.” (Id. at p. 326 [82 L.Ed.2d at p. 251], fn. omitted.) While the Supreme Court
44
found the defendant in Richardson had a colorable double jeopardy claim, the court said
that, in light of its holding, claims of double jeopardy such as the defendant’s would no
longer be “colorable” double jeopardy claims which may be appealed before final
judgment. (Id. at p. 326, fn. 6 [82 L.Ed.2d at p. 251, fn. 6].) Thus, even if the “collateral
order” doctrine that permitted interlocutory review in Richardson is applicable here
(Ponce-Bran v. Trustees of Cal. State University (1996) 48 Cal. App. 4th 1656, 1661
[California standards for determining the appealability of collateral orders differ from the
federal standards]; Efron v. Kalmanovitz (1960) 185 Cal. App. 2d 149, 160–161
[“ ‘whether an appeal should be allowed, and if so, under what circumstances or on what
conditions are matters for each state to determine for itself’ [citation]”]), it does not
permit review in this case.
VII
Ellington also contends there is insufficient evidence that the charged offenses
were committed “with the specific intent to promote, further, or assist in any criminal
conduct by gang members.”12
To determine whether sufficient evidence supports the jury’s section 186.22,
subdivision (b)(1) finding that Ellington intended to promote, further or assist in any
criminal conduct by a gang member, “we review the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence--that is,
evidence that is reasonable, credible, and of solid value--from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume
12 Section 186.22, subdivision (b)(1) requires proof that the defendant committed the
charged offense with the intent to promote, further or assist in any criminal conduct by
gang members, including the current offenses. (People v. Albillar (2010) 51 Cal. 4th 47,
64-67 (Albillar).) Ellington concedes the California Supreme Court’s decision in Albillar
disposes of his argument that section 186.22, subdivision (b)(1) requires proof of specific
intent to further or facilitate other criminal conduct. (Id. at pp. 65-66.)
45
every fact in support of the judgment the trier of fact could have reasonably deduced
from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding. [Citation.]” (Albillar,
supra, 51 Cal.4th at p. 60.) We do not reweigh evidence or reevaluate the credibility of
witnesses. (Ibid.)
Substantial evidence that a defendant intended to and did commit the charged
offenses with known gang members supports the reasonable inference that the defendant
had the specific intent to promote, further or assist criminal conduct by those gang
members. (Albillar, supra, 51 Cal.4th at p. 68 [finding substantial evidence supporting
specific intent element of gang enhancement where there was ample evidence that
defendants were members of a criminal street gang, defendants intended to attack the
victim, and they assisted each other in raping her].) Expert opinion can also support a
section 186.22, subdivision (b)(1) enhancement. (Albillar, supra, 51 Cal.4th at p. 63;
Hernandez, supra, 33 Cal.4th at pp. 1047-1048; People v. Gardeley, supra, 14 Cal.4th at
p. 619.) Here, expert testimony, coupled with the other evidence presented, was
sufficient to support the gang enhancement finding in counts one through four. To the
extent Ellington claims there is insufficient evidence to support gang enhancement
allegations attached to counts five and six, we do not consider the claim because the jury
made no such findings.
Luke testified about the Ridezilla gang and defendants’ active gang membership
or association. Ellington did not challenge Luke’s qualification to testify as a gang
expert. Luke told the jury that defendants were active members or associates of Ridezilla
at the time of the charged crimes. He testified about Ellington’s prior association with
validated Ridezilla gang members including Hines, prior contact with law enforcement
authorities in Ridezilla territory, and involvement with the Lewis incident with Bloods
gang members wherein Ellington called out “Zilla” as he kicked the victim. Luke also
46
testified about cell phone photographs of Ellington and Johnson throwing gang signs.
These photographs showed prior and recent association between Hines, Ellington and
Johnson.
Luke told the jury that gang members are expected to commit crimes to prove their
loyalty to the gang. Members gain respect from fellow gang members, rivals and the
community and stature within the gang from their participation in crimes. Gang members
are expected to back fellow gang members, and failure to do so could result in negative
consequences for the individual and the gang. According to Luke, gang members
commit crimes together and with guns.
Luke said the commission of violent crimes by gang members benefits the gang
because the members “represent[]” the gang in the neighborhood and the crimes add to
the gang’s notoriety. Each gang member “reflects that gang as a whole” and the respect a
gang member earns is “passed back towards the gang.” A home invasion robbery like the
one in this case benefitted Ridezilla because it instilled fear in the victims and the
neighborhood, and contributed to Ridezilla’s notoriety. Luke also opined that a “drug
rip-off” benefitted Ridezilla because it was a source of money and drugs for the gang and
allowed Ridezilla to take over the drug dealer’s territory. As we have discussed, there is
evidence from which the jury could reasonably infer that the victims’ house was a
reputed drug dealer’s house and it was targeted for that reason.
Evidence showed that defendants worked together to perpetrate the charged
crimes. Byrd subdued and sexually assaulted Daughter while Ellington and the others
ransacked the house. One of the intruders directed Byrd to “[s]trip the bitch,” and Byrd
followed the order to take Daughter upstairs. Together, defendants terrorized Daughter
and Son. Daughter was violently and repeatedly hit, her clothes were removed, and she
was sexually assaulted. Son was threatened at gunpoint.
During the crimes, the perpetrators used the term “Blood.” For example, one of
the intruders said “Hey, Blood, somebody’s here.” While the use of the term “Blood”
47
can have different meanings depending upon the circumstances , Luke said Bloods gang
members call each other “Blood” during the commission of a crime to avoid revealing
their names and to announce their gang affiliation. Son reportedly heard someone say
“Where’s the money, Blood? Where’s the money, Blood?” Luke explained that when
used in addressing the victim, the word “Blood” signals to the victim that a gang was
committing the crime and intimidates victims not to report the crime to law enforcement.
Daughter believed the intruders were gang members because of the way they were
dressed, they said “Blood” a lot, and they were committing a home invasion robbery with
guns. One reasonable inference from the evidence is that defendants used the word
“Blood” to instill fear in their victims and to announce their gang affiliation.
The jury could have reasonably concluded from all of the evidence that Ellington
intended to and did commit the charged crimes with known gang members. There was
substantial evidence that Ellington intended to further, or assist his fellow gang members
in committing, the crimes charged in counts one through four. (Albillar, supra,
51 Cal.4th at p. 68.)
The cases Ellington compares with this one are distinguishable. In People v.
Ramon (2009) 175 Cal. App. 4th 843, 847, 849, the appellate court reversed the true
finding on the gang enhancement, finding no facts from which the gang expert could
discern whether the defendant acted on his own behalf or on behalf of his gang. (Id. at
pp. 851, 853.) And in People v. Ochoa (2009) 179 Cal. App. 4th 650, the appellate court
concluded there was insufficient evidence that the charged offenses were committed to
benefit the defendant’s gang because there was no evidence that the gang committed
carjackings like the one committed by the defendant. (Id. at pp. 661-665.) There was no
connection between the crimes and the defendant’s gang, such as the defendant calling
out a gang name or acting in the company of a fellow gang member. (Ibid.) Here,
however, there was substantial evidence from which Luke based his expert opinion that
the charged crimes were connected to the Ridezilla gang, namely the statements by
48
Mother and Daughter about possible drug activity by the former resident of their house;
Daughter and Son’s statements that the intruders repeatedly used the term “Blood” and
expected to find money at the house; evidence about the Ridezilla gang, its culture and
activities, including home invasion robberies and the robbery of drug dealers, defendants’
gang-related tattoos, admission of gang membership, and/or prior associations or criminal
activities with validated Ridezilla or Bloods gang members; and the fact that defendants
were apprehended as a group in the vicinity of the victims’ house close in time to the
intruders’ flight from the crime scene. The jury could reasonably find that a group of
Ridezilla gang members or associates committed a “drug rip-off” and Ellington intended
to aid the felonious conduct of his fellow Ridezilla gang members.
VIII
Ellington next claims that the trial court abused its discretion in admitting
photographs obtained from the cell phones of Hines and Johnson. However, even if the
trial court erred in admitting the cell phone photographs, there was no prejudice.
“The erroneous admission of gang or other evidence requires reversal only if it is
reasonably probable that appellant would have obtained a more favorable result had the
evidence been excluded.” (People v. Avitia (2005) 127 Cal. App. 4th 185, 194.) As we
shall explain, there is no reasonable probability that Ellington would have obtained a
more favorable result in the absence of the cell phone photographs because substantial
evidence supports his conviction in counts one through four. Ellington matched the
general description of the intruders provided by Daughter. He was positively identified
by Mother and Daughter at the show-ups. Mother said at her show-up that she definitely
saw Ellington on her driveway and remembered his sweater. Officers apprehended
Ellington with his codefendants in the vicinity of the crime scene within minutes of
Daughter’s 911 call. Physical evidence tied Johnson to the crime scene, and Daughter
recognized Byrd’s distinctive shoes. Even without the challenged cell phone
photographs, other substantial evidence showed the prior association between Hines and
49
Ellington, Hines and Johnson, and Johnson and validated Bloods gang member Danny
Owens, defendants’ active membership in a Bloods gang, and the access to guns and
drugs by Ridezilla members such as Hines. Additionally, the cell phone photographs
were not more inflammatory than the other gang evidence presented at trial and did not
inflame the jury to convict Ellington on all counts.
IX
Ellington consented to instructing the jury with CALCRIM Nos. 370 (motive) and
1401 (crime committed for benefit of criminal street gang). Nonetheless, he claims on
appeal that it was error to give both instructions because motive is an element of the gang
enhancement allegation.13
Although Ellington failed to object below, we will consider his appellate
contention because he asserts the trial court incorrectly instructed the jury on the
elements of the gang enhancement. (People v. Hillhouse (2002) 27 Cal. 4th 469, 503
[claim of instructional error with regard to elements of a crime require no objection at
trial because such error affects the substantial rights of the defendant].)
Counts one through six asserted gang enhancement allegations against Ellington.
Accordingly, the trial court instructed his jury, pursuant to CALCRIM No. 1401, as
follows: “If you decide the defendant is guilty of any of the crimes charged in counts one
through six[,] you must then decide whether for each crime the [P]eople have proved the
additional allegation that the defendant committed that crime for the benefit of, at the
direction of or in association with a criminal street gang. You must decide whether the
[P]eople have proved this allegation for each crime and return a separate finding for each
crime. [¶] To prove this allegation[,] the [P]eople must prove that, one, the defendant
committed or attempted to commit the crime for the benefit of, at the direction of or in
13 Ellington’s opening brief erroneously states that count one alleges a section 190.2
gang special circumstance.
50
association with the criminal street gang and, two, the defendant intended to assist,
further or promote criminal conduct by gang members. [¶] . . . [¶] The [P]eople have the
burden of proving each allegation beyond a reasonable doubt. [¶] If the [P]eople have
not met this burden, you must find that the allegation has not been proved.” (§ 186.22,
subd. (b)(1).)
The trial court also instructed the jury, consistent with CALCRIM No. 370, that
“[t]he People are not required to prove the defendant had a motive to commit any of the
crimes charged. In reaching your verdict you may, however, consider whether the
defendant had a motive. Having a motive may be a factor tending to show that the
defendant is guilty. Not having a motive may be a factor tending to show the defendant
is not guilty.”
Ellington concedes that the claim he makes was rejected in People v. Fuentes
(2009) 171 Cal. App. 4th 1133 (Fuentes). In that case, the defendant was convicted of,
among other things, criminal street gang participation. (§ 186.22, subd. (a).) Gang
enhancement and gang special circumstance allegations (§ 190.2, subd. (a)(22)) were also
found to be true. (Fuentes, supra, 171 Cal.App.4th at pp. 1136-1138.) The defendant
argued that the CALCRIM No. 370 instruction given, which stated that motive need not
be proved, conflicted with the jury instructions for the gang participation offense and the
gang enhancement and special circumstance allegations, which required proof of intent to
further gang activity. (Id. at pp. 1139-1140.) According to the defendant, this was
because intent and motive were synonymous. (Ibid.) The appellate court rejected the
defendant’s argument, saying “[a]n intent to further criminal gang activity is no more a
‘motive’ in legal terms than is any other specific intent. We do not call a premeditated
murderer’s intent to kill a ‘motive,’ though his action is motivated by a desire to cause
the victim’s death.” (Fuentes, supra, 171 Cal.App.4th at p. 1139.)
The distinction between motive and intent is well-settled. (People v. Hillhouse,
supra, 27 Cal.4th at p. 504; 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
51
Elements, § 4, p. 263.) Our Supreme Court has held that motive and intent are distinct
mental states. (People v. Hillhouse, supra, 27 Cal.4th at p. 504.) “Motive describes the
reason a person chooses to commit a crime. The reason, however, is different from a
required mental state such as intent or malice.” (Ibid.) Ellington does not contend that
any jury instruction given used the terms “intent” and “motive” interchangeably.
(People v. Cash (2002) 28 Cal. 4th 703, 739 [where instructions as a whole did not use the
terms “motive” and “intent” interchangeably, there was no reasonable likelihood the jury
understood those terms as synonymous].)
The court in Fuentes concluded that the CALCRIM No. 370 instruction, in
combination with the pattern instruction for section 186.22, subdivision (b)(1), told the
jury the prosecution must prove that the defendant “intended to further gang activity but
need not show what motivated his wish to do so. This was not ambiguous and there is no
reason to think the jury could not understand it. [The defendant] claims the intent to
further criminal gang activity should be deemed a motive, but he cites no authority for
this position. There was no error.” (Fuentes, supra, 171 Cal.App.4th at pp. 1139-1140.)
We agree with Fuentes.
Ellington argues that Fuentes was wrongly decided, but the holding of Fuentes is
consistent with that in People v. Hillhouse, supra, 27 Cal. 4th 469. Like Ellington, the
defendant in Hillhouse argued a jury instruction which stated that motive was not an
element of the crimes charged and need not be proved contradicted instructions on the
requisite mental states for the charged offenses. (Hillhouse, supra, 27 Cal.4th at pp. 480,
503.) The Supreme Court distinguished between intent and motive. (Id. at pp. 503-504.)
It held that while malice and intent were elements of the charged offenses in that case,
motive was not. (Id. at p. 504.) The analysis and holding in People v. Wilson (2008)
43 Cal. 4th 1, 22, wherein the Supreme Court found no contradiction between the pattern
instruction on motive and the pattern instruction describing the intent necessary for
attempted robbery, is similar. Both Hillhouse, supra, 27 Cal.4th at page 504 and Fuentes,
52
supra, 171 Cal.App.4th at page 1140 distinguished People v. Maurer (1995)
32 Cal. App. 4th 1121, a case Ellington relies upon, as involving a unique statute.
The language of CALCRIM No. 370 also supports our conclusion. CALCRIM
No. 370 refers to the “crimes charged,” not to an enhancement allegation. “[A]ny
reasonable juror would have understood the instruction as referring to [a] substantive
offense only and not to any [enhancement] allegation.” (People v. Noguera (1992)
4 Cal. 4th 599, 637 [discussing the equivalent CALJIC instruction on motive]; People v.
Snow (2003) 30 Cal. 4th 43, 98 [also noting that the equivalent CALJIC instruction on
motive refers to “ ‘the crime charged’ ” not to the special circumstance allegation].)
Ellington suggests that CALCRIM No. 370 unconstitutionally lessened the
prosecution’s burden of proof on the gang enhancement. But claims that CALCRIM
No. 370 lightens the prosecution’s burden of proof have been rejected. (People v.
Mendoza (2011) 52 Cal. 4th 1056, 1094-1095 [discussing the equivalent CALJIC
No. 2.51 instruction]; People v. Prieto (2003) 30 Cal. 4th 226, 254; Fuentes, supra,
171 Cal.App.4th at p. 1139.)
Ellington further contends that the prosecutor equated motive with intent in his
closing argument. But even if the prosecutor used the terms “intent” and “motive”
interchangeably in one portion of his closing argument, he also told the jury to follow the
judge’s instructions. There is no indication that the jury did not understand or heed the
trial court’s CALCRIM No. 1401 instruction. (People v. Yeoman, supra, 31 Cal.4th at
p. 139 [we presume jurors are able to understand and follow instructions]; People v. Vang
(2009) 171 Cal. App. 4th 1120, 1129 [we presume jurors can understand and correlate all
instructions given].)
Viewing the instructions together, it is not reasonably likely the jury
misunderstood or misapplied the CALCRIM No. 370 instruction in the manner asserted
by Ellington. (People v. Smithey (1999) 20 Cal. 4th 936, 963 [correctness of jury
instructions is to be determined from the entire charge of the trial court].)
53
X
Ellington also claims that the cumulative effect of the errors relating to illegal
detention, suggestive show-up, denial of bifurcation, admission of evidence about the
Lewis incident and the cell phone photographs, insufficiency of evidence supporting
aiding and abetting and the gang enhancement, and instructional error deprived him of a
fair trial. Having found no prejudicial error, Ellington’s claim lacks merit.
XI
We permitted Ellington to submit supplemental briefing challenging the trial
court’s order requiring Ellington to pay victim restitution.
The trial court ordered Ellington to pay $2,000 in victim restitution pursuant to
section 1202.4, subdivision (f). Ellington did not object to that order. Nonetheless, he
argues on appeal that the order violates his Sixth Amendment right to have a jury
determine the facts upon which the restitution order is based. He contends his failure to
object below did not forfeit his appellate claim because he could not have anticipated the
change in the law occasioned by the holding in Southern Union Co. v. United States
(2012) ___ U.S. ___ [183 L. Ed. 2d 318] (Southern Union Co.). If objection is necessary
to preserve the issue for appeal, he claims his trial counsel rendered ineffective assistance
by failing to object.
Ellington contends that because a victim restitution order is a criminal penalty, a
jury must determine the facts upon which such order is based. This claim is based on the
holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L. Ed. 2d 435] (Apprendi),
Blakely v. Washington (2004) 542 U.S. 296 [159 L. Ed. 2d 403] (Blakely) and Southern
Union Co., supra, ___ U.S. ___ [183 L. Ed. 2d 318].
In Apprendi, it was held that the Sixth and Fourteenth Amendments to the federal
Constitution require that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S.
54
at pp. 476, 490 [147 L.Ed.2d at pp. 446, 455].) Four years later, in Blakely, the Supreme
Court again held that a defendant has a Sixth Amendment right to have a jury determine a
fact which subjects him to a prison term in addition to the statutory maximum for his
crime. (Blakely, supra, 542 U.S. at pp. 298, 303-305 [159 L.Ed.2d at pp. 410, 413-415].)
“[T]the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the maximum
he may impose without any additional findings.” (Id. at pp. 303-304 [159 L.Ed.2d at
pp. 413-414], italics omitted.) More recently, in Southern Union Co., the Supreme Court
held that Apprendi applies to sentences of criminal fines. (Southern Union Co., supra,
___ U.S. at p. ___ [183 L.Ed.2d at p. 325].) The Supreme Court said that criminal fines
are penalties, and facts such as the duration of a violation, which determine the amount of
a fine, must be submitted to a jury to be determined beyond a reasonable doubt. (Id. at
p. ___ [183 L.Ed.2d at p. 327].)
Apprendi, Blakely and Southern Union Co. did not discuss victim restitution.
Unlike the criminal fine at issue in Southern Union Co., victim restitution is not a fine.
And while the provisions for victim restitution and a restitution fine are both set forth in
section 1202.4, victim restitution is different from a restitution fine. (Stats. 2007,
ch. 302, § 14, pp. 3071-3077 [§ 1202.4, subds. (a)(3), (b), (f)] [treating restitution fine
and victim restitution as separate]; People v. Kunitz (2004) 122 Cal. App. 4th 652, 657
(Kunitz); People v. Harvest (2000) 84 Cal. App. 4th 641, 647-648 (Harvest).) “ ‘[A]
restitution fine is mandatory even in the absence of a crime victim’ [citation], but victim
restitution obviously requires a victim [who has suffered a demonstrated loss as a result
of the defendant’s crime].” (Harvest, supra, 84 Cal.App.4th at p. 647.) A restitution fine
is paid to the state, while victim restitution is paid to the victim. (Id. at p. 647.) A felony
restitution fine is limited to a maximum of $10,000, but there is no specified limit for a
55
victim restitution order. (Stats. 2007, ch. 302, § 14, pp. 3071-3077 [§ 1202.4,
subds. (b)(1), (f)].) Section 1202.4 prescribes a formula and a list of relevant factors for
calculating a restitution fine. (Stats. 2007, ch. 302, § 14, p. 3072 [§ 1202.4, subds. (b)(2),
(d)].) The statute, however, does not contain a formula or criteria for calculating victim
restitution. Victim restitution is simply based on the amount of loss claimed by the
victim or any other showing to the court, and must provide the victim “full” restitution
unless the trial court expressly finds compelling and extraordinary reasons for not
providing full restitution.14 (Stats. 2007, ch. 302, § 14, pp. 3072-3077 [§ 1202.4,
subds. (f), (g)].)
Moreover, victim restitution is not punitive. (Kunitz, supra, 122 Cal.App.4th at
p. 657; Harvest, supra, 84 Cal.App.4th at pp. 646-649 [“the Legislature intended victim
restitution as a civil remedy rather than as a criminal punishment”].) Restitution paid to
the victim is enforceable as if the order were a civil judgment. (Stats. 2007, ch. 302,
§ 14, pp. 3071, 3077 [§ 1202.4, subds. (a)(3)(B), (i)].) Although restitution serves a
rehabilitative and deterrent purpose (Stats. 1994, ch. 1106, § 1, p. 6548), “the primary
purpose of victim restitution is to provide monetary compensation to an individual
injured by crime. [Citations.] Compensation is the defining feature of civil law.
[Citations.]” (Harvest, supra, 84 Cal.App.4th at p. 648; see also Cal. Const., art. 1, § 28,
subd. (b); Stats. 2007, ch. 302, § 14, pp. 3071-3077 [§ 1202.4, subds. (a)(1), (f), (g)];
People v. Jennings (2005) 128 Cal. App. 4th 42, 57; People v. Bernal (2002)
101 Cal. App. 4th 155, 168.) The Legislature did not identify punishment for the
defendant’s crime as a purpose of victim restitution. (Stats. 1994, ch. 1106, § 1, p. 6548.)
Nor is the victim restitution order so punitive in purpose or effect as to transform it
into a criminal penalty. (Harvest, supra, 84 Cal.App.4th at pp. 649-650.) Here, nothing
14 Under the Victims’ Bill of Rights Act of 2008 or Marsy’s Law, victims have a
constitutional right to restitution. (Cal. Const., art. I, § 28, subd. (b)(13).)
56
in the record shows that the amount ordered overcompensated the victim or would cause
Ellington to “be mired in debt for the rest of” his life.
Ellington cites People v. Moser (1996) 50 Cal. App. 4th 130 (Moser) and People v.
Brown (2007) 147 Cal. App. 4th 1213 (Brown) for the proposition that victim restitution is
a criminal penalty, but those cases are distinguishable. Moser involved whether a court
can order the defendant in a criminal case to pay restitution to a victim whose civil claim
against the defendant for the damage covered by the restitution order was discharged in
bankruptcy. (Moser, supra, 50 Cal.App.4th at p. 132.) This court held that because
victim restitution did not serve the purpose of forced payment of a discharged debt, it was
not precluded by the Bankruptcy Code. (Id. at p. 136.) Moser did not discuss section
1202.4, or victim restitution, in the context of a Sixth Amendment claim, and Ellington
does not contend that the distinct purposes of bankruptcy discharge and victim restitution
require vacating the trial court’s victim restitution order.
Brown involved victim restitution in connection with section 1192.5, which
provided that “ ‘[w]here the plea is accepted by the prosecuting attorney in open court
and is approved by the court, the defendant . . . cannot be sentenced on the plea to a
punishment more severe than that specified in the plea . . . .’ ” (Brown, supra,
147 Cal.App.4th at pp. 1221, 1224, italics omitted.) The issue was whether victim
restitution could significantly exceed what the parties contemplated in the plea
agreement. (Id. at pp. 1221-1222.) The appellate court held that for purposes of
section 1192.5, the victim restitution order in that case was a punishment more severe
than that specified in the plea. (Id. at pp. 1221-1224.) But again, Brown did not discuss
section 1202.4, or victim restitution, in the context of a Sixth Amendment claim, and this
case does not involve the application of section 1192.5 to a plea agreement.
Because victim restitution is not a criminal fine and does not “increase the
penalty” for Ellington’s crimes, Apprendi, Blakely and Southern Union Co. are not
applicable and the trial court’s determination of victim restitution does not violate
57
Ellington’s Sixth Amendment right to a jury trial. (People v. Pangan (2013)
213 Cal. App. 4th 574, 585; People v. Chappelone (2010) 183 Cal. App. 4th 1159, 1183-
1184; People v. Millard (2009) 175 Cal. App. 4th 7, 35-36; see also U.S. v. Wolfe (7th Cir.
2012) 701 F.3d 1206, 1216-1217; U.S. v. Day (4th Cir. 2012) 700 F.3d 713, 732; U.S. v.
Dupes (2d Cir. 2008) 513 F.3d 338, 345-346; U.S. v. Leahy (3d Cir. 2006) 438 F.3d 328,
337-338.)
Of course, even if victim restitution constituted punishment, Apprendi requires
jury factfinding only where a fact, other than the fact of a prior conviction, “ ‘increases
the penalty for a crime beyond the prescribed statutory maximum.’ ” (Southern Union
Co., supra, ___ U.S. at pp. ___ [183 L.Ed.2d at pp. 325-327].) There can be no Apprendi
violation where no maximum is prescribed. (Id. at p. ___ [183 L.Ed.2d at p. 330].)
Unlike with a restitution fine, “there is no prescribed statutory maximum in the [victim]
restitution context; the amount of restitution that a court may order is instead
indeterminate and varies based on the amount of damage and injury caused by the
offense. [Citation.] As a consequence, the rule of Apprendi is simply not implicated to
begin with by a trial court’s entry of [victim] restitution.” (U.S. v. Day, supra, 700 F.3d
at p. 732, italics omitted.)
XII
We also permitted Ellington to submit supplemental briefing to challenge the trial
court’s order requiring Ellington to pay a $3,800 restitution fine pursuant to section
1202.4, subdivision (b). Again relying upon Apprendi, Blakely and Southern Union Co.,
Ellington claims that because the fine was substantial, a jury must determine his ability to
pay.
Judges have historically exercised discretion--taking into consideration the factors
relating to offense and offender--in imposing a judgment within the range prescribed by
statute. (Apprendi, supra, 530 U.S. at p. 481 [147 L.Ed.2d at pp. 449-450]; Southern
Union Co., supra, ___ U.S. at p ___ [183 L.Ed.2d at p. 330].) The exercise of such
58
discretion is fully consistent with Apprendi. (Southern Union Co., supra, ___ U.S. at
p. ___ [183 L.Ed.2d at p. 330].) Two California appellate courts have rejected the
argument that imposing a section 1202.4, subdivision (b) restitution fine without jury
findings violates Apprendi and Blakely. (People v. Kramis (2012) 209 Cal. App. 4th 346,
351-352 (Kramis); People v. Urbano (2005) 128 Cal. App. 4th 396, 405-406 (Urbano).)
The appellate court in Kramis considered whether the holding in Southern Union
Co. had any effect on a $10,000 section 1202.4, subdivision (b) restitution fine. (Kramis,
supra, 209 Cal.App.4th at pp. 348-349.) With exceptions irrelevant to our analysis, the
version of section 1202.4, subdivision (b) examined in Kramis is identical to the version
of the statute in effect at the time of Ellington’s crimes. (Stats. 2007, ch. 302, § 14,
pp. 3071-3072; Stats. 2008, ch. 468, § 1, p. 3341; Kramis, supra, 209 Cal.App.4th at
pp. 349-350.) Under those versions of section 1202.4, subdivision (b), a restitution fine
is set at the discretion of the court and must be commensurate with the seriousness of the
offense, but shall not be less than $200 and not more than $10,000 if the defendant is
convicted of a felony. (Stats. 2007, ch. 302, § 14, pp. 3071-3072 [§ 1202.4, subd. (b)(1)];
Kramis, supra, 209 Cal.App.4th at p. 350.) In setting the amount of the felony restitution
fine in excess of $200, the trial court considers any relevant factors including, but not
limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and
the circumstances of its commission, any economic gain derived by the defendant as a
result of the crime, the extent to which any other person suffered any losses as a result of
the crime, and the number of victims involved in the crime. (Stats. 2007, ch. 302, § 14,
p. 3072 [§ 1202.4, subd. (d)]; Kramis, supra, 209 Cal.App.4th at p. 350.)
The court in Kramis concluded that Apprendi and Southern Union Co. do not
apply when, as in that case, the trial court exercised its discretion within the statutory
range. (Kramis, supra, 209 Cal.App.4th at pp. 350-351.) The court explained that
because the $10,000 restitution fine imposed by the trial court was within the statutory
range between $200 and $10,000, the trial court did not make any factual findings that
59
increased the potential fine beyond what the jury’s verdict allowed. (Id. at pp. 351-352.)
In Urbano, the appellate court similarly reasoned that Blakely and Apprendi do not apply
when the exercise of judicial discretion stays within a sentencing range authorized by
section 1202.4, subdivision (b). (Urbano, supra, 128 Cal.App.4th at pp. 405-406.)
Like the restitution fines imposed in Kramis and Urbano, the $3,800 restitution
fine the trial court imposed in this case is within the statutory range prescribed in section
1202.4, subdivision (b). (Stats. 2007, ch. 302, § 14, pp. 3071-3072 [§ 1202.4,
subd. (b)(1)].) The trial court’s exercise of discretion within that statutorily prescribed
range does not violate Apprendi, Blakely and Southern Union Co.
XIII
Citing People v. Rodriguez (2009) 47 Cal. 4th 501 (Rodriguez), Hines and Byrd
claim the trial court violated section 1170.1, subdivision (f) by imposing a 10-year
enhancement under section 12022.53, subdivision (b) (firearms use) and a second 10-year
enhancement under section 186.22, subdivision (b)(1)(C) (gang benefit) in count two.
The jury convicted Hines and Byrd of the attempted first degree robbery of
Daughter in count two and found true the allegations that they personally used a firearm
in the commission of the attempted robbery (§ 12022.53, subd. (b)) and acted for the
benefit of, at the direction of and in association with a criminal street gang (§ 186.22,
subd. (b)(1)(C)). The trial court sentenced Hines to the midterm of three years, doubled
for a prior strike conviction. The trial court then imposed an additional 10-year prison
term under section 12022.53, subdivision (b), and a separate 10-year term under
section 186.22, subdivision (b)(1)(C). The trial court sentenced Byrd to the midterm of
three years, plus a 10-year enhancement under section 12022.53, subdivision (b), and an
additional 10-year enhancement under section 186.22, subdivision (b)(1)(C).
Defendants and the Attorney General agree that count two qualified as a violent
felony under section 667.5, subdivision (c), and that Hines and Byrd were eligible for the
10-year enhancement under section 186.22, subdivision (b)(1)(C) because the jury found
60
that they violated section 12022.53. The Attorney General further agrees, based on
Rodriguez, supra, 47 Cal. 4th 501, that the imposition of both the section 12022.53,
subdivision (b) enhancement and the section 186.22, subdivision (b)(1)(C) enhancement
in count two violates section 1170.1, subdivision (f). We do not agree, however, that
Rodriguez controls the issue before us.
In Rodriguez, the defendant was convicted of three counts of assault with a firearm
(§ 245, subd. (a)(2)) against three victims of a gang shooting. (Rodriguez, supra,
47 Cal.4th at pp. 504-506.) As to each count, the jury found to be true the allegations that
the defendant personally used a firearm (§ 12022.5, subd. (a))15 and that the assault was a
“violent felony” committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).
(Rodriguez, supra, 47 Cal.4th at pp. 504-506.) In two of the counts, the trial court
imposed enhancements under both section 12022.5 and section 186.22. (Id. at p. 506.)
The California Supreme Court held this sentence violated section 1170.1, subdivision (f).
(Id. at p. 504.) It said that where firearms use resulted in punishment under two different
sentence enhancement provisions, each pertaining to firearm use, section 1170.1,
subdivision (f) requires the imposition of only the greater of the enhancements for each
offense. (Id. at p. 509.) Section 1170.1, subdivision (f) provided: “When two or more
enhancements may be imposed for being armed with or using a dangerous or deadly
weapon or a firearm in the commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision shall not limit the
15 Section 12022.5, subdivision (a) stated: “Except as provided in subdivision (b)
[which relates to a person who personally uses an “assault weapon” or “machinegun”],
any person who personally uses a firearm in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment in the
state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
(Rodriguez, supra, 47 Cal.4th at p. 505.)
61
imposition of any other enhancements applicable to that offense, including an
enhancement for the infliction of great bodily injury.”
Rodriguez does not involve a sentence enhancement under section 12022.53, the
firearm enhancement statute applied in count two here. The pertinent provisions of
section 12022.53 at the time of defendants’ crimes remain in the current version of the
statute. (Stats. 2006, ch. 901, § 11.1, p. 7076.) Section 12022.53, subdivision (b) states:
“Notwithstanding any other provision of law, any person who, in the commission of a
felony specified in subdivision (a) [which includes attempted robbery], personally uses a
firearm, shall be punished by an additional and consecutive term of imprisonment in the
state prison for 10 years.”
Of significance, section 12022.53 specifically addresses sentencing in a case
where a firearm use enhancement and a gang enhancement have been established.
Section 12022.53, subdivision (e)(2) instructs: “An enhancement for participation in a
criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7
of Part 1 shall not be imposed on a person in addition to an enhancement imposed
pursuant to this subdivision, unless the person personally used or personally discharged a
firearm in the commission of the offense.” (Stats. 2006, ch. 901, § 11.1, p. 7076.) No
analogous provision is found in section 12022.5, the firearms use enhancement statute
applied in Rodriguez, supra, 47 Cal. 4th 501. (People v. Robinson (2012)
208 Cal. App. 4th 232, 257-258 (Robinson).)
The second enhancement provision involved here is section 186.22,
subdivision (b)(1)(C), which provided then and currently states, “any person who is
convicted of a felony committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of which he
or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a
62
violent felony, as defined in subdivision (c) of Section 667.5, the person shall be
punished by an additional term of 10 years.” (Stats. 2006, ch. 596, § 1, pp. 4929-4930.)
At all relevant times, section 667.5, subdivision (c)(22) defined a violation of section
12022.53 as a violent felony. Thus, a violation of section 12022.53 subjects a person
convicted of a gang-related felony to an additional prison term of 10 years under
section 186.22, subdivision (B)(1)(C).
The appellate court in Robinson, supra, 208 Cal. App. 4th 232, examined the effect
of Rodriguez on a sentence involving both a section 12022.53, subdivision (b)
enhancement and a section 182.22, subdivision (b)(1)(C) enhancement. The defendant in
Robinson was eligible for enhanced punishment under both of these statutes based on his
personal use of a firearm. (Robinson, supra, 208 Cal.App.4th at pp. 256-257.) In light of
Rodriguez, supra, 47 Cal. 4th 501, the trial court imposed a 10-year prison term for the
section 12022.53, subdivision (b) enhancement, but stayed the prison term imposed for
the section 186.22, subdivision (b)(1)(C) enhancement. (Id. at p. 256.) The Attorney
General cross-appealed, claiming that the stay of the section 186.22,
subdivision (b)(1)(C) enhancement was error under section 12022.53, subdivision (e)(2).
(Id. at pp. 255, 257-258.)
After reviewing Rodriguez and section 12022.53, the appellate court in Robinson
agreed with the Attorney General. The court concluded that section 12022.53,
subdivision (e)(2), which expressly authorized the imposition of the gang and firearm use
enhancements where the defendant personally used a firearm in the commission of the
offense, conflicted with section 1170.1, subdivision (f), which directed that only one
firearm enhancement be imposed. (Robinson, supra, 208 Cal.App.4th at p. 258.) The
court in Robinson examined the legislative history of section 12022.53, subdivision (e)(2)
and section 1170.1, subdivision (f), which were enacted nearly simultaneously in 1997.
(Id. at pp. 258-259.) But those provisions did not reference each other or mention the
conflict between them. (Id. at p. 259.) The court in Robinson turned to the language of
63
section 12022.53, subdivision (e)(2) to resolve the statutory conflict. It concluded that
section 12022.53, subdivision (e)(2) specifically addressed the gang and firearm use
enhancements whereas section 1170.1, subdivision (f) related to firearm use
enhancements generally. (Id. at pp. 259-260.) Applying the maxim that the specific
statute controls and is treated as an exception to the general statute where there is a
conflict between a general statute and a specific one, the court in Robinson held that
section 12022.53, subdivision (e)(2) controlled. (Id. at pp. 260-261.) The court
concluded that where a defendant is found to have personally used a firearm in the
commission of a qualifying offense, section 12022.53, subdivision (e)(2) authorizes the
imposition of both the section 12022.53, subdivision (b) and the section 186.22,
subdivision (b)(1)(C) enhancements. The Robinson court said that “treating
section 12022.53(e)(2) as an exception to section 1170.1(f) is consistent with the
Legislature’s intent to impose enhanced punishment on those who personally use
firearms in gang-related felonies.” (Id. at p. 261, italics omitted.)
The conclusion in Robinson that section 12022.53, subdivision (e)(2) authorizes
the imposition of both section 12022.53, subdivision (b) and section 186.22,
subdivision (b)(1)(C) enhancements when the defendant personally used a firearm finds
support in People v. Brookfield (2009) 47 Cal. 4th 583 (Brookfield). Brookfield examined
the interplay between section 12022.53 and 186.22 and interpreted section 12022.53,
subdivision (e)(2) in the context of a case where the defendant was convicted of a gang-
related crime wherein he did not personally use or discharge a firearm, but his companion
did. (Id. at pp. 586, 588.) Referring to section 12022.53, subdivision (e)(2), the Supreme
Court said, “[a] defendant who personally uses or discharges a firearm in the commission
of a gang-related offense is subject to both the increased punishment provided for in
section 186.22 and the increased punishment provided for in section 12022.53. In
contrast, when another principal in the offense uses or discharges a firearm but the
defendant does not, there is no imposition of an ‘enhancement for participation in a
64
criminal street gang . . . in addition to an enhancement imposed pursuant to’ section
12022.53. [Citation.]” (Id. at p. 590, italics omitted.) Discussing section 12022.53’s
sentencing scheme, the Supreme Court reiterated that those offenders who personally
used or discharged a firearm in committing a gang-related offense specified in
section 12022.53 are subject to both the enhancement provisions of section 12022.53 and
the gang-related sentence increases of section 186.22. (Id. at p. 593.) The Supreme
Court concluded that subjecting a defendant who personally used or discharged a firearm
in a gang-related felony to greater punishment for both the gang enhancement under
section 186.22 and the firearm use enhancement under section 12022.53 is consistent
with the Legislature’s goal in section 12022.53, subdivision (e) of reserving the most
severe sentences for this group of offenders. (Id. at p. 594.)
Based on section 12022.53, subdivision (e)(2), Brookfield, supra, 47 Cal. 4th 583
and Robinson, supra, 208 Cal. App. 4th 232, we conclude the trial court did not err in
imposing both the section 12022.53, subdivision (b) enhancement and the section 186.22,
subdivision (b)(1)(C) enhancement on count two because the jury found that Hines and
Byrd personally used a firearm in the commission of the attempted robbery.
XIV
Hines claims the trial court erred by imposing five-year sentence enhancements
pursuant to section 667, subdivision (a) on the determinate terms for counts two
(attempted robbery) and six (sexual battery). The Attorney General agrees, and we do
too.
Section 667, subdivision (a)(1) provides that any person convicted of a “serious
felony” who has a prior serious felony conviction in this state shall receive, in addition to
the sentence imposed for the present offense, a five-year enhancement for each such prior
conviction on charges brought and tried separately. A “serious felony” is a serious felony
listed in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).)
65
Counts two, five and six qualify as serious felonies within the meaning of
section 667, subdivision (a)(1) because the jury found that Hines personally used a
firearm in the commission of the offenses charged in those counts, and the crimes of
which Hines was convicted in counts two (attempted robbery) and five (assault with
intent to commit rape) are serious felonies under section 1192.7, subdivision (c).
(§ 1192.7, subds. (c)(8), (19), (29) & (39).) The trial court found that Hines was
convicted of second degree robbery in 2006, which also qualifies as a serious felony
under section 667, subdivision (a)(1). (§ 1192.7, subd. (c)(19).) Because he was
convicted of a serious felony and had a prior serious felony conviction, Hines was
eligible for enhanced punishment under section 667, subdivision (a)(1).
However, the section 667, subdivision (a)(1) enhancement can be used only once
to enhance the aggregate determinate term, regardless of the number of determinate terms
that make up the total determinate sentence. (People v. Tassell (1984) 36 Cal. 3d 77, 90,
overruled on other grounds in People v. Ewoldt (1994) 7 Cal. 4th 380, 401.) The trial
court erred by imposing five-year enhancements pursuant to section 667,
subdivision (a)(1) to each determinate term in counts two and six. One of those five-year
enhancements must be stricken.
XV
The Attorney General also agrees with Hines that the trial court erred in imposing
a full-term sentence against Hines on count six (sexual battery).
Felony sexual battery is punishable by imprisonment in state prison for two, three
or four years. (§ 243.4, subd. (a).) The trial court selected the midterm of three years,
and sentenced Hines to the full midterm, doubled under sections 667, subdivision (e)(1)
and 1170.12, subdivision (c)(1),16 plus a full midterm of four years for the
16 Section 667, subdivision (e)(1) and section 1170.12, subdivision (c)(1) provide that in
addition to any other enhancement or punishment provisions which may apply, if a
66
section 12022.5, subdivision (a) firearms use enhancement and a full midterm of three
years for the section 186.22, subdivision (b)(1) gang enhancement, for a total of 13 years,
to be served consecutive to the other prison terms. Because the trial court selected the
count two sentence as the principal term, the sentence on count six must be a subordinate
term.
Where, as here, a defendant is convicted of a serious felony and has a prior
conviction for a strike and the trial court imposes consecutive prison terms, the
determinate terms are calculated pursuant to section 1170.1. (People v. Nguyen (1999)
21 Cal. 4th 197, 203-204, 207.) As the California Supreme Court explained, under
section 1170.1 the trial court “must designate principal and subordinate terms . . . ,
calculating the subordinate terms as one-third of the middle term (except when full-term
consecutive sentences are otherwise permitted or required), and then double each of the
resulting terms.” (People v. Nguyen, supra, 21 Cal.4th at pp. 203-204, 207.) The term
for an enhancement is not doubled. (People v. Moody (2002) 96 Cal. App. 4th 987, 990-
994; People v. Dominguez (1995) 38 Cal. App. 4th 410, 424.)
Neither Hines nor the Attorney General assert, and we find no basis for
concluding, that a full-term sentence is required for count six. We will remand the matter
to permit the trial court to resentence Hines pursuant to section 1170.1, subdivision (a).
XVI
Hines next claims that the trial court should have imposed a concurrent sentence
on count six. According to Hines, section 667, subdivisions (c)(6) and (c)(7) do not
mandate consecutive sentencing because the count six crime of sexual battery occurred
on the “same occasion” and was based on “the same set of operative facts” as the
count five crime of assault with intent to commit rape. If his appellate contention is
defendant has one prior violent or serious felony conviction that has been pled and
proved, the determinate sentence shall be twice the term otherwise provided as
punishment for the current felony conviction.
67
forfeited by his failure to raise it at trial, Hines asserts his trial counsel rendered
ineffective assistance by failing to object. Accordingly, we address the merits of Hines’s
consecutive sentence claims even though he did not object on these grounds at trial in
order to forestall his ineffective assistance claim.
Where a defendant is sentenced on multiple felony counts under the three strikes
law because he has previously been convicted of at least one serious or violent felony, the
trial court must sentence the defendant consecutively on each count unless the current
felonies were committed on the same occasion or arose from the same set of operative
facts. (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6); People v. Deloza (1998) 18 Cal. 4th
585, 590-591 (Deloza).) If the current felonies were committed on the same occasion or
arose from the same set of operative facts, the trial court has discretion to impose a
consecutive or concurrent sentence. (Deloza, supra, 18 Cal.4th at pp. 590-591.) The trial
court reviews the facts established at trial and those presented at sentencing to determine
whether the current felonies occurred on the same occasion or arose from the same set of
operative facts. (People v. Hall (1998) 67 Cal. App. 4th 128, 137-138.)
The term “same occasion,” as used in section 667, refers to a close temporal and
spatial proximity between the acts underlying the current felony convictions. (Deloza,
supra, 18 Cal.4th at pp. 594-595.) A crime is not committed on the same occasion if it is
complete when the second crime is being committed. (People v. Durant (1999)
68 Cal. App. 4th 1393, 1405-1406.)
In People v. Jenkins (2001) 86 Cal. App. 4th 699, 703-704, the defendant broke into
the apartment that his former girlfriend shared with her children and chased the girlfriend
to an upstairs bedroom while threatening to kill her with a knife. The girlfriend’s
daughter went to her mother’s aid, but the defendant pushed the daughter down the stairs,
causing her to suffer various cuts. (Id. at p. 704.) When the girlfriend succeeded in
disarming the defendant, the defendant went down the stairs to the kitchen and obtained
another knife. (Ibid.) He pushed the apartment manager who tried to intercede and
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returned to the upstairs bedroom, forced his way into the room, and stabbed his former
girlfriend multiple times. (Id. at pp. 704-705.) The defendant was sentenced under the
three strikes law to 25 years to life for the aggravated assault upon the daughter, to be
served consecutive to the 25-years-to-life sentence for the attempted premeditated murder
against the former girlfriend. (Id. at pp. 701.) The appellate court held that, under
section 667, subdivision (c)(6), consecutive sentencing was required for these crimes
because they were not committed on the same occasion and did not arise from the same
set of operative facts. (Id. at p. 706.) It noted that the assault against the daughter was
complete when the defendant pushed her down the stairs and, even though the assault and
the attempted murder occurred within the same apartment, the offenses against the
daughter and the former girlfriend were separated in time and location. (Id. at pp. 706-
707.) After committing the assault against the daughter on the stairway, the defendant
did not immediately continue to try to force his way into the upstairs bedroom where the
former girlfriend was located. (Ibid.) Instead, he went downstairs, armed himself with
another knife, and pushed his way past the apartment manager before returning upstairs
to stab his former girlfriend. (Ibid.) The appellate court also noted that the elements of
attempted murder and aggravated assault are different. (Id. at p. 707.)
Applying Deloza, supra, 18 Cal. 4th 585 [robberies were on the same occasion
because they were committed essentially simultaneously in one location within a brief
duration against the same victims], People v. Jenkins, supra, 86 Cal. App. 4th 699, and
People v. Durant, supra, 68 Cal. App. 4th 1393 [crimes committed in succession at
different units within a condominium complex were not committed on the same occasion
nor did they arise from the same set of operative facts because each crime was complete
before the defendant committed the next crime], we conclude the trial court did not err in
imposing a consecutive sentence on count six because the record supports the finding that
the crimes of assault with intent to commit rape and sexual battery were committed at
different times and places.
69
The assault with intent to commit rape (count five) was committed on the stairs of
the victims’ home when one of the armed intruders pointed a gun at Daughter and
ordered her to get down, Daughter was hit with a gun and punched in the face, one of the
intruders yelled “strip the bitch,” and Byrd took off Daughter’s shirt and bra. The crime
was complete when, during the assault in the stairway, the conduct of Byrd and the
surrounding circumstances showed an intent to commit rape. (People v. Maury (2003)
30 Cal. 4th 342, 399-400; People v. Meichtry (1951) 37 Cal. 2d 385, 388-389.)
The sexual battery (count six) was committed in a different location within the
house and after Daughter was dragged upstairs and battered in the upstairs hallway
bathroom. (Jenkins, supra, 86 Cal.App.4th at p. 707 [commission of crimes within the
same apartment does not preclude a finding that crimes were not committed on the same
occasion].) The conduct in the bathroom was an “event that could be considered to
separate one [crime] from another.” (Deloza, supra, 18 Cal.4th at p. 596.) After hitting
Daughter in the bathroom, Byrd took her to Mother’s bedroom, bent her over the bed, hit
her when she tried to call for help, and touched her bare breast with his hand. The jury
found that Hines aided and abetted Byrd in committing the crimes of assault with intent
to commit rape and sexual battery.
Additionally, the crime of assault with intent to commit rape is different from the
crime of sexual battery. (§§ 220, 243.4, subd. (a), 261; People v. Dixon (1999)
75 Cal. App. 4th 935, 943.) Based on the above, the trial court did not err in imposing a
consecutive sentence on count six.
Hines argues the trial court erroneously applied a section 667.6 standard when it
considered whether Hines had an opportunity to reflect on his actions in deciding whether
to impose a consecutive sentence. In imposing a consecutive sentence on count six, the
trial court said: “Counts 5 and 6 were committed at different times and places, as the
victim was moved from one location to another. [¶] The defendant did have an
opportunity to reflect on his actions. The second consecutive sentencing is warranted for
70
those reasons.” The trial court did not say it was imposing a consecutive term on
count six pursuant to section 667.6. In any event, we find no error.
Section 667.6 requires a consecutive sentence for certain sexual offenses “if the
crimes involve separate victims or involve the same victim on separate occasions.”
(§ 667.6, subd. (d).) In determining whether crimes against a single victim were
committed on separate occasions under that statute, a court must “consider whether,
between the commission of one sex crime and another, the defendant had a reasonable
opportunity to reflect upon his or her actions and nevertheless resumed sexually
assaultive behavior.” (§ 667.6, subd. (d).) The California Supreme Court held that
section 667.6 may be of limited help in determining whether a defendant’s current
felonies were committed on the same occasion within the meaning of the three strikes
law. (Deloza, supra, 18 Cal.4th at pp. 596-599.) But the fact that Hines had an
opportunity to reflect on his actions could indicate an intervening event separating one
crime from another. We are not persuaded that the trial court’s “opportunity to reflect”
statement evidences error. (People v. Jenkins, supra, 86 Cal.App.4th at pp. 706-707
[noting that defendant had sufficient time to consider the consequences of continuing to
commit new criminal acts where there were intervening events between assault of one
victim and attack against second victim in concluding that consecutive sentencing was
mandatory].)
We further conclude that the assault with intent to commit rape and the sexual
battery do not arise from the same set of operative facts. The phrase “same set of
operative facts” in section 667, subdivision (c)(6) refers to “the facts of a case which
prove the underlying act upon which a defendant had been found guilty.” (People v.
Lawrence (2000) 24 Cal. 4th 219, 231-232.) Offenses do not arise from the same set of
operative facts if they do not share common acts or criminal conduct that serve to
establish the elements of the offenses. (Id. at pp. 233-234.) “ ‘In applying this definition
to any particular case, the nature and elements of the current charged offense becomes
71
highly relevant. For example, when a robbery is charged, its continuous nature, its
elements and the facts used to support those elements are the “operative facts” underlying
the commission of that crime. If another offense is committed while the facts underlying
that robbery are unfolding, it will necessarily arise from the same set of operative facts as
the original robbery. However, where the elements of the original crime have been
satisfied, any crime subsequently committed will not arise from the same set of operative
facts underlying the completed crime; rather such crime is necessarily committed at a
different time. For instance, with the crime of burglary, where the offense is complete
when there is an entry into a structure with felonious intent, “regardless of whether the
felony or theft committed is different from that contemplated at the time of entry, or
whether any felony or theft actually is committed” [citation], the commission after the
first burglary of a crime or burglary of another structure necessarily will arise out of
different operative facts than those underlying the original offense.’ [Citation.]” (Id. at
pp. 232-233.)
As we have explained, the acts which establish the elements of the crimes of
assault with intent to commit rape and sexual battery do not overlap. The assault with
intent to commit rape was complete before Byrd went on to commit the offense of sexual
battery in the upstairs bedroom.
In sum, the trial court did not err in imposing a consecutive sentence on count six
because section 667, subdivision (c)(6) mandated that sentence. But even if consecutive
sentencing was not mandatory under section 667, subdivision (c)(6), we would find no
abuse of discretion by the trial court in selecting a consecutive sentence. In exercising its
discretion to impose consecutive or concurrent sentences when section 667,
subdivision (c)(6) does not mandate consecutive sentencing, the trial court considers the
criteria set forth in rule 4.425 of the California Rules of Court. (Deloza, supra,
18 Cal.4th at p. 596, fn. 8.) Such criteria include whether the crimes and their objectives
were predominantly independent of each other and whether the crimes were committed at
72
different times or separate places, rather than being committed so closely in time and
place as to indicate a single period of aberrant behavior. (Cal. Rules of Court,
rule 4.425(a) (rule 4.425).) We will not disturb the trial court’s exercise of discretion in
the absence of a clear showing that, considering all the circumstances, its determination
exceeds the bounds of reason. (People v. Lepe (1987) 195 Cal. App. 3d 1347, 1350;
People v. Oseguera (1993) 20 Cal. App. 4th 290, 294-295 [we do not disturb the trial
court’s rule 4.425 finding unless it is not supported by substantial evidence].) The
count five and six crimes are distinct and do not overlap. (People v. Oseguera, supra, at
pp. 294-295 [finding no error in imposing consecutive sentence under predecessor to
rule 4.425 where crimes involved distinct acts, even though the crimes occurred at the
same time and place]; People v. Hunt (1982) 133 Cal. App. 3d 543, 562 [consecutive
sentence was appropriate under predecessor to rule 4.425 where burglary of one
apartment was predominantly independent of subsequent burglary of a different but
nearby apartment].) Hines cannot demonstrate abuse of discretion in the imposition of a
consecutive sentence on count six.
XVII
Hines argues that the trial court should have stayed the sentence on count six
pursuant to section 654 because the count five and six crimes shared the same criminal
objective. But Hines concedes that section 654 does not apply when consecutive
sentencing is mandated under the three strikes law. (People v. Danowski (1999)
74 Cal. App. 4th 815, 823-824.) We do not address Hines’s section 654 claim because, as
we have explained, section 667, subdivision (c)(6) mandates a consecutive sentence in
count six.
XVIII
Johnson claims the trial court erred by failing to state its reasons for imposing the
upper, instead of the middle or lower, term for the firearms use enhancement (§ 12022.5,
subd. (a)).
73
In sentencing Johnson on count one, the trial court was authorized to impose a
lower, middle or upper term on the section 12022.5 enhancement based on the jury’s
finding that Johnson personally used a firearm in the commission of the burglary.
(§ 12022.5, subd. (a).) The trial court had discretion to impose the term that best served
the interest of justice, but was required to state the reasons for its sentence choice on the
record at the time of sentencing. (§ 1170.1, subd. (d); Cal. Rules of Court, rules 4.406,
subd. (b)(4), 4.428.) Nonetheless, a defendant forfeits the objection that the trial court
failed to state the reasons for a discretionary sentencing choice by failing to raise the
objection below. (People v. Scott (1994) 9 Cal. 4th 331, 353.) As the Supreme Court
explained in People v. Scott, “[a]lthough the court is required to impose sentence in a
lawful manner, counsel is charged with understanding, advocating, and clarifying
permissible sentencing choices at the hearing. Routine defects in the court’s statement of
reasons are easily prevented and corrected if called to the court’s attention.” (Ibid.)
Failure to timely object forfeits review of a claim concerning “discretionary sentencing
choices--those ‘which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.’ [Citation.]” (People v. Stowell (2003)
31 Cal. 4th 1107, 1113.) Johnson’s appellate claim falls within this category and is
forfeited by his failure to raise the objection at trial.
Johnson claims the forfeiture rule articulated in People v. Scott, supra, 9 Cal. 4th
331, does not apply to this case because his trial counsel argued for the low term after the
trial court announced the tentative sentence. We disagree. Johnson never objected in the
trial court that the trial court failed to state any reason for imposing the upper term on the
section 12022.5 enhancement. The purpose of the rule requiring objection is to bring
easily correctable defects to the trial court’s attention and to give the trial court an
opportunity to address such errors, thereby preserving the judicial resources otherwise
required to correct them. (Id. at p. 353.) Given the trial court’s statements about the
aggravated nature of the armed burglary, the vulnerability of the victim, and that the
74
upper term for the weapon enhancement was necessary for a just sentence, the trial court
could have easily corrected any oversight had Johnson objected at the sentencing hearing.
Johnson’s failure to object resulted in forfeiture.
DISPOSITION
The sentences imposed against Hines on counts two and six are vacated, and the
matter is remanded to the trial court to resentence Hines in accordance with parts XIV
and XV of this opinion. Following resentencing, the trial court is directed to amend the
abstract of judgment for Hines and to forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
The judgments are otherwise affirmed.
MAURO , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
75