People v. Calloway CA2/4 ( 2013 )

Filed 12/9/13 P. v. Calloway CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B239805
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA372306)
v.
RAYMOND CALLOWAY, et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County,
Barbara R. Johnson and Craig J. Mitchell, Judges. Modify and affirm.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant Raymond Calloway.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant Jason Bridges.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
These appeals arise from the armed robbery of a Trader Joe’s store. Appellant
Raymond Calloway was convicted of four counts in the first trial, but the jury was unable
to reach a verdict on the counts against his co-defendant, appellant Jason Bridges. Each
was convicted as charged at the second trial.
Calloway and Bridges challenge the sufficiency of the evidence supporting their
convictions of robbing two employees who remained secreted during the entire episode
and who were unknown to them. Bridges challenges the evidence identifying him as one
of the robbers and the jury’s finding that he assaulted three employees who were in a
back room. Bridges argues the trial court erred by informing the second jury that
Calloway had been convicted of several counts in the first trial.
Calloway argues the trial court abused its discretion in declining to strike his strike
prior conviction and that it erred in imposing sentence on count 1 from the first trial in
violation of Penal Code section 654.1 Bridges argues, and respondent concedes, that his
sentence on count 3 should have been stayed under section 654. Each appellant joins in
the issues raised by the other.
Respondent asks that we modify the abstract of judgment to reflect the correct
amounts for the mandatory criminal conviction assessment under Government Code
section 70373 and the court security fee under section 1465.8.
We find sufficient evidence to support the robbery convictions as to the hidden
employees. There was substantial evidence identifying Bridges as the lookout during the
robbery and supporting the convictions for assault of the three victims moved to a wine
room at the rear of the store. Since the jury in the second trial was asked to determine
Calloway’s guilt on special gun use allegations arising from the counts on which he was
convicted in the first trial, we find no abuse of the trial court’s discretion in informing the
single jury at the second trial of those convictions.
The trial court did not abuse its discretion in denying Calloway’s motion to strike
a 1987 attempted murder strike allegation. Section 654 does not apply to his sentence
1 Statutory references are to the Penal Code unless otherwise indicated.
2
under count 1 of the first trial because Calloway acted with a separate objective in
committing that crime. We agree with Bridges and respondent that section 654 does
apply to the sentence on count 3 in the second trial and direct the modification of the
abstract of judgment. We conclude that the People did not forfeit the claim that the
abstract of judgment must be corrected to reflect the correct criminal conviction
assessment under Government Code section 70373 and the court security fee under
section 1465.8, and order that the abstract of judgment be modified accordingly.
FACTUAL AND PROCEDURAL SUMMARY
At 10:00 p.m. on May 30, 2010, a number of employees were still working at a
Trader Joe’s store in Eagle Rock. By that time, the store was closed to the public. Three
men entered through the back of the store. The man later identified as Calloway carried a
semiautomatic weapon and a bag. He was accompanied by Bridges, who was unarmed.
A third man, not identified, also was armed with a semiautomatic gun.
Calloway pointed his gun at employee Angelica Arteaga and told her to be quiet.
Employee Andrew Bates walked up. Calloway pointed the gun at Bates and signaled that
he and Arteaga should stand together. When Calloway pointed the gun at Bates’s
forehead, Bates said “whoa” and Calloway told him to “‘[s]hut the fuck up.’” Bates and
Arteaga could see employee Douglas Hilton in a nearby room. Calloway directed
Arteaga to call him over. Arteaga did so and Hilton joined the group. Calloway directed
the three employees to walk outside the store. He followed with his gun pointed at them.
He signaled them to walk to a room called the wine bank, where the third robber waited.
Once they were inside the wine bank, Calloway left and the third robber ordered
the three employees to remove the contents of their pockets. Arteaga did not have
anything in her pockets, the others did and removed the items. The third robber ordered
the employees to lay on the floor face down. They complied. The third robber stood at
the doorway, and threw their possessions on the floor, where they later were recovered.
In the meantime, employee Adam Kuehlthau was at the captain’s desk, an office
area in the front of the store, with manager Ryan Gilger. There was a three-part safe in
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the captain’s desk area. Two doors were unlocked, but the third was locked and could
only be opened by an armored truck service that came in the morning. Gilger was
counting money and preparing to put it in one of the safes. Calloway and Bridges walked
up to the captain’s desk where Bridges took up a position as lookout, nervously looking
around the store.
Gilger asked if he could help the two men. Calloway pulled out his weapon,
pointed it at Gilger’s chest, and asked for the money. Gilger, who had put his hands up,
turned and opened the unlocked door to the middle safe. Calloway held the gun with his
right hand while loading the money into a bag. Bridges was yelling at Calloway to hurry
up, or saying that the employees were looking at him. Employee Ernie Morales, who was
working in the produce area near the front of the store, saw Calloway and Bridges at the
captain’s desk. Since Gilger and Kuehlthau had their hands up, Morales believed that a
robbery was occurring. Morales walked toward them. Bridges looked at him, yelled
something, then ran out the back exit.
Calloway was occupied removing money from the safe. Morales picked up a
bottle of wine, walked quickly to the captain’s desk, and hit Calloway on the back of the
head with the bottle. Calloway spun around and shot Morales. They wrestled over the
gun. More shots were fired. Morales lost his grip on the gun and begged Calloway not to
shoot him. He shoved Calloway away and ran down the aisle in an attempt to get away.
Morales feared for his life.
After Bridges left the captain’s desk area, he appeared in the door of the wine bank
and excitedly told the third robber, “‘Let’s go.’” Both men ran out of the wine bank. The
three employees at that location waited a brief time, then Hilton called 911. Arteaga was
in fear for her life while in the wine bank.
Two Trader Joe’s employees on duty at the time of the robbery were able to hide
from the robbers. Jayson Gonzalez saw two African American men walk into the store
after it was closed. They walked toward the front, carrying bags. He saw Gilger and
Kuehlthau hold their hands up in the air and believed a robbery was occurring. Gonzalez
hid behind an aisle, but could see what was happening at the captain’s desk. He saw
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Morales pass by, then come back into view with a bottle of wine in his hand, walking
toward the entrance to the captain’s desk. Gonzalez moved forward to a location from
which he could see the captain’s desk because he was concerned that Morales might do
something. He saw Morales lift the wine bottle over Calloway’s head and smash it down.
Gonzalez heard a crash when the bottle struck. He immediately heard four or five
gunshots in repeated succession. Gonzalez ducked down out of sight. Then he moved
forward again and heard sounds of wrestling at the captain’s desk. He saw the robber and
Morales rise up while the robber was holding the gun in the air, as if fighting over it.
Gonzalez saw Morales hold his hands up, and say, “‘Don’t Shoot. Don’t Shoot. I give
up.’”. After the robbers left, Morales went up to Gonzalez and asked him to call an
ambulance because he had been shot in the leg.
Employee Nelson Zaldana first noticed the robbers when they were at the
captain’s desk. He too believed a robbery was occurring because he saw Gilger and
Kuehlthau with their hands up. Zaldana was near the entrance to the store near the
captain’s desk. He walked to the back of the store. He could not see what was happening
at the captain’s desk from that vantage point. He heard about four gunshots in fast
succession, causing him to fear for his life. He did not see the gunshots. He and
Gonzalez laid Morales down after the shooting and put pressure on the wound where it
was bleeding.
Three .40 caliber bullet casings were collected from the captain’s desk area and
one live .40 caliber bullet from the floor of the back room. A bullet had gone into a
photocopier at the captain’s desk. The casings and bullet were fired from a
semiautomatic gun. There also was a bullet hole in the ceiling through a light fixture
near the captain’s desk.
The third robber was never identified or apprehended. Calloway and Bridges were
identified as involved in the robbery and arrested. They were charged with eight counts
5
of second degree robbery.2 In addition, Calloway was charged with assault with a semi-
automatic weapon on victim Morales. The information alleged that Calloway and
Bridges each personally used a firearm in the commission of the offenses other than
assault, causing great bodily injury. It also alleged that Calloway had suffered two prior
strike convictions within the meaning of sections 667, subdivisions (b)-(i) and 1170.12,
subdivisions (a)-(d). It was alleged that Bridges had a prior strike conviction for first
degree robbery in 2004.
At the first trial, the jury was unable to reach a verdict on any count against
Bridges. Calloway was found guilty of the robberies of Morales, Gilger, and Kuehlthau
and the assault on Morales (counts 1, 2, 3, and 5). The jury found true the allegations that
Calloway had personally used a firearm as to those counts, but was unable to reach a
verdict on the remaining special allegations or on the remaining charges against him. A
mistrial was declared as to the counts for which no verdict was rendered. The trial court
struck one of Calloway’s two prior strike felony convictions in the interests of justice.
At the second trial, the charging pleading was the third amended information.
Bridges was charged with eight counts of second degree robbery (victims Morales,
Gilger, Gonzalez, Kuehlthau, Zaldana, Bates, Hilton, and Arteaga). Calloway was
charged with special allegations as to the convictions for robbing Morales, Gilger, and
Kuehlthau (counts 1, 3, and 5), as well as the second degree robbery of victims Gonzalez,
Zaldana, Bates, Hilton, and Arteaga. Calloway and Bridges were charged with assault
with a semi-automatic weapon on Bates, Hilton, and Arteaga. In addition, Bridges was
charged with assault on Bates, Hilton, Arteaga, Gilger, Morales and Kuehlthau. Both
defendants were found guilty as charged in the second trial. The jury found true
2The victims in these counts were employees Morales, Gilger, Gonzalez,
Kuehlthau, Zaldana, Bates, Hilton, Arteaga. During the first trial, the court granted a
defense motion to dismiss count 10, the second degree charge of robbery of another
person.
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allegations that Calloway had personally used a firearm and firearm allegations against
Bridges.3
Calloway was sentenced to an aggregate term of 48 years in prison. Bridges was
sentenced to an aggregate term of 31 years in prison. We reserve the details of these
sentences for our discussion of the sentencing issues raised by appellants. Appellants
filed timely appeals.
DISCUSSION
I
Bridges challenges the sufficiency of evidence identifying him as the lookout
during the robbery, the person referred to during trial as suspect two. He cites the five
alibi witnesses who testified that he was home attending a Memorial Day weekend party
at the time the robbery occurred.4 He also cites Calloway’s testimony that the
accomplice who acted at lookout at the captain’s desk was an individual known to him as
“Red.” Bridges notes that the jury in the first trial was unable to convict him on any
charges, splitting eight not guilty to four guilty.
Bridges also points to inconsistencies in the descriptions of suspect two provided
by the witnesses. Morales and Kuehlthau identified Bridges as suspect two from six-pack
photographs and at trial.
3On counts 1, 3, 5, 12, 13 and 14 the jury found true allegations under section
12022.5, subd. (a) as to Calloway. It found true allegations under both 12022.53,
subdivision (b) and 12022.5, subdivision (a) as to Calloway on counts 4, 6, 7, 8, and 9.
On counts 1-9 the jury found not true allegations as to Calloway under section 12022.53,
subdivisions (c) and (d). The jury found true allegations under section 12022,
subdivision (a)(1) as to Bridges on counts 1 through 9. It found not true an allegation
under section 12022.5, subdivision (a) as to Bridges on count 14.
4 Craig Coleman, Marcia Leatherwood, Elizabeth Franklin, Nin Nanette Grosse,
and Katherine Coleman each testified that they saw Bridges return to the party about the
time of the robbery at Trader Joe’s.
7
“‘In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate
court presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citations.]’ (People v. Kraft (2000) 23 Cal.4th
978, 1053; see also, e.g., People v. Prieto (2003) 30 Cal.4th 226, 245; People v. Farnam
(2002) 28 Cal.4th 107, 142–143.)” (People v. Mai (2013) 57 Cal.4th 986, 1038.)
A reviewing court may not set aside a jury’s finding of guilt on the question of
identity, unless the evidence of identity is “‘so weak as to constitute practically no
evidence at all.’ [Citations.]” (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.)
Where the circumstances of the eyewitness identification and its weight are explored at
trial, and credited by the jury, the jury’s determination is binding on the reviewing court.
(Ibid, citing In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) The fact that the
robber’s face was partially obscured does not preclude a finding of sufficient evidence to
support the verdict. (Id. at p. 522.) Discrepancies in the eyewitness descriptions, and in
the descriptions given of the robber do not require the jury to reject their identifications:
“‘The strength or weakness of the identification, the incompatibility of and discrepancies
in the testimony, if there were any, the uncertainty of recollection, and the qualification
of identity and lack of positiveness in testimony are matters which go to the weight of the
evidence and the credibility of the witnesses, and are for the observation and
consideration, and directed solely to the attention of the jury in the first instance . . . .’
[Citation.]” (Ibid.)
Kuehlthau identified Calloway and Bridges as the men who came into the
captain’s desk area when he was there with Gilger. He described Bridges to the police as
the lookout, and as tall, wearing a hooded black sweatshirt. After his recollection was
refreshed with a police report, Kuehlthau testified that he told the police that the robber
he identified as Bridges was a tall black male, with broad shoulders and wearing a black
8
hooded sweatshirt. Kuehlthau thought Bridges was 6’ 4” or 6’ 3” (Kuehlthau was 6’ 3”).
On redirect, he reaffirmed his identification of Calloway (as the man with a gun) and
Bridges (lookout). Bridges was 6’ 4” tall.
Kuehlthau did not identify any person in the first six pack he was shown because
he did not recognize anyone as involved in the robbery. From another six pack, he
identified the third photograph, which was of Bridges, on exhibit 6-B as the lookout. He
wrote “looks like the lookout who ran off. Similar features, his nose and mouth. He was
the other guy who ran in with the guy with the gun, into Trader Joe’s who robbed us on
May 30th, 2010.” Kuehlthau had a good look at Bridges at the time of the robbery. He
was certain about the identification. The photo looked “very, very close to whom I saw.”
He said suspect two (Bridges) was darker skinned than Calloway. Kuehlthau told police
officers that he only saw parts of Bridges’ face because Bridges had a sweatshirt hood
pulled down.
Morales testified that he had a good look at Bridges’ face since the store was well
lit. He saw suspect two’s face for one or two seconds, unobscured by a hoodie
sweatshirt. He described suspect two as lighter skinned, with a narrower face, skinnier,
and a little taller than Morales, who is 5’ 8”. He believed that he had agreed with a police
officer that suspect two was about 5’ 10” tall. When he identified Bridges from a six-
pack photo array, Morales said the person looked like suspect two’s mouth area and lips.
He wrote that the hairline, skin tone, and facial hair looked similar.
Although Gilger did not identify Bridges at trial as suspect two, he testified that he
told police officers that suspect two was 6’ 3” tall, a couple inches taller than Gilger’s
6’ 1”. This was consistent with Kuehlthau’s description of the height of suspect two.5
5 Arteaga was not able to identify Bridges prior to the second trial, where she
testified that he looked like the second robber who came to the back room and told the
third robber “‘Let’s go.’” Under cross-examination, she testified that she was unsure of
her identification, but that Bridges looked like suspect two because he had the same
height and complexion.
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“Inconsistencies in [witnesses’] initial descriptions of the perpetrator . . . are
matters affecting the witnesses’ credibility, which is for the jury to resolve.” (People v.
Elliott (2012) 53 Cal.4th 535, 586.) In finding Bridges guilty, the jury at the second trial
plainly credited the identification testimony of Morales and Kuehlthau and disbelieved
the alibi witnesses. Sufficient evidence of identification supports the verdicts as to
Bridges.
II
Bridges argues that his convictions of assaulting the victims in the back room
(Bates, count 12; Hilton, count 13, and Arteaga, count 14) must be overturned because
they were too far from the bullets fired at the captain’s desk. Alternatively, he argues that
the assault convictions are not supported by evidence that Calloway pointed a gun at
these victims when they were moved to the wine room. Calloway joins in all contentions
raised by Bridges. Respondent argues that the evidence that a loaded weapon was
pointed at the three victims who moved to the wine room is sufficient to support these
assault convictions.
When Bates encountered Calloway in the back area of the store, Calloway pulled
out a gun and stuck it in his face. Bates jumped back and loudly said, “‘Whoa.’”.
Calloway said, “‘Shut the fuck up.’” He kept the gun in Bates’ face, and repeated the
admonition to shut up. Bates said, “‘You can have whatever you want.’” The gun was
pointed at Bates’ forehead, a couple of inches away.
Arteaga testified that Calloway entered the store, pointed a gun at her, and
signaled her to be quiet. Calloway pointed the gun at Arteaga, Bates, and Hilton as he
directed them to walk outside the back area of the store to the wine room. He was within
two to three feet of them, with the loaded gun pointed at them. Calloway testified that he
knew that the gun he used in the robbery was loaded.
“‘An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.’ (§ 240.) Assault requires the willful
commission of an act that by its nature will probably and directly result in injury to
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another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act
by its nature will probably and directly result in such injury. (People v. Williams (2001)
26 Cal.4th 779, 782 (Williams).)” (People v. Miceli (2002) 104 Cal.App.4th 256, 268–
269.) In Miceli, the court found sufficient evidence that the defendant pointed a loaded
semi-automatic weapon based on a statement he made to a police officer, despite
equivocal testimony by others. If credited by the jury, the defendant’s statement was
sufficient to prove the gun was loaded. The court concluded: “To point a loaded gun in a
threatening manner at another . . . constitutes an assault, because one who does so has the
present ability to inflict a violent injury on the other and the act by its nature will
probably and directly result in such injury. [Citations.]” (Id. at p. 269.)
There was substantial evidence that Bridges aided and abetted Calloway in the
commission of his offenses, including the assaults on Bates, Hilton, and Arteaga.
Calloway pointed a loaded weapon at these three in a threatening manner. Bridges
argues in his reply brief that the convictions should be reversed because the third
unidentified robber told the victims in the wine room, “‘Don’t worry. Nothing bad is
going to happen to you.’” This assurance by the third robber does not negate Calloway’s
use of his weapon in a threatening manner against these victims. The convictions for
assaulting Bates, Hilton, and Arteaga are supported by substantial evidence.
III
Both Calloway and Bridges challenge the evidence supporting their convictions at
the second trial of robbing Gonzalez and Zaldana, the employees who remained hidden
during the robbery.
“‘Robbery is “the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by
means of force or fear.” (§ 211, People v. Scott (2009) 45 Cal.4th 743, 749 [(Scott)].)”
(People v. McKinnon (2011) 52 Cal.4th 610, 686-687 [regardless of their specific
responsibilities, on-duty employees have constructive possession of their employer’s
property for purposes of a robbery.].) “Robbery of a particular person has not occurred
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unless property was taken from the person’s immediate presence and the defendant used
force or fear to take the property or to prevent the person from resisting.” (Scott, at
p. 749.)
California recognizes that employees in constructive possession of store property
may each be a separate victim of a robbery of the business. In Scott, during the robbery
of a McDonald’s restaurant, two employees hid from the robbers. Each saw the robbers
with weapons and immediately hid for the duration of the crime. At trial and on appeal, a
defendant argued that the hidden employees were not victims of the robbery because they
lacked constructive possession of the money which was stolen. Resolving a split of
authority in the Courts of Appeal, the Supreme Court held that “‘employees working at a
business premises were in constructive possession of the employer’s property during a
robbery, based upon their status as employees and without examining whether their
particular duties involved access to or control over the property stolen.’” (Scott, supra,
45 Cal.4th at p. 752, quoting People v. Jones (2000) 82 Cal.App.4th 485, 490.) It
concluded that “‘if force or fear is applied to two victims in joint possession of property,
two convictions of robbery are proper.’” (Id. at p. 757.) The convictions for robbing the
hidden victims were affirmed. (Id. at p. 758.)
Calloway argues there is insufficient evidence that he robbed Gonzalez and
Zaldana because they were in different parts of the store when the robbery occurred, did
not interact with him or the other robbers, and the robbers were unaware of their
presence. “‘The generally accepted definition of immediate presence . . . is that “‘[a]
thing is in the [immediate] presence of a person, in respect to robbery, which is so within
his reach, inspection, observation or control, that he could, if not overcome by violence
or prevented by fear, retain his possession of it.’”’ (People v. Hayes (1990) 52 Cal.3d
577, 626–627.)” (People v. Abilez (2007) 41 Cal.4th 472, 507, italics added.) As we
have discussed, all employees in the store had constructive possession of the stolen
money under the principles announced in Scott, supra, 45 Cal.4th at page 753. Zaldana
and Gonzalez were prevented by fear from retaining possession of the money in the store
safe. That is sufficient to satisfy the element of immediate presence to support the
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convictions of robbing them. (See People v. Douglas (1995) 36 Cal.App.4th 1681, 1690-
1691 [sufficient evidence of attempted robbery of patron hiding 30 feet from robbery of
bartender since patron saw robber had gun, and was prevented by fear from reclaiming
money he had left on bar.]
The cases Calloway cites do not support his argument. First, he cites the
discussion in Scott, supra, 45 Cal.4th at pages 750–751 of the general principles of
constructive possession for purposes of robbery. As we have discussed, in Scott, the
Supreme Court upheld convictions for robbing two victims who saw the armed intruders,
but hid during the robbery and did not interact with the robbers. (Id., supra, 45 Cal.4th at
p. 758.) Calloway does not explain how this discussion supports his contention that the
robbers had to have knowledge of the victims’ presence in order to have robbed them.
Calloway also cites People v. Bonner (2000) 80 Cal.App.4th 759, in which the
defendant argued there was insufficient evidence to support his conviction of two counts
of attempted robbery because he was not in close proximity to either intended victim and
did not demand money from either of them. The Court of Appeal rejected the argument
and affirmed the convictions. (Id. at pp. 765-766.) It concluded the convictions were
supported by evidence of the defendant’s intent to rob the two victims and of acts beyond
mere preparation, including going to the scene with a weapon, placing a mask over his
face, and waiting in hiding. He abandoned the plan and fled only after he was discovered
by other hotel employees before he could confront the intended victims. (Id. at p. 764,
fn. 3.) We do not see how this case supports Calloway’s argument.
Sykes v. Superior Court (1994) 30 Cal.App.4th 479, on which Calloway relies,
also is distinguishable. The issue in that case was whether the defendant took a
saxophone from the person or immediate presence of a security guard who was not
employed by the business which was robbed, but was instead employed by a nearby
business. The case is inapposite since here we are concerned with employee victims who
come within the principles of constructive possession announced in Scott, supra,
45 Cal.4th at page 743.
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Bridges’ challenge to the robbery counts involving Zaldana and Gonzalez is
similar. He argues that since the robbers did not see these two victims, they never used
force against them and thus he cannot be convicted of robbing them. But like the hidden
victims in Scott, supra, 45 Cal.4th 743, Gonzalez and Zaldana both testified that they saw
Gilger and Kuehlthau standing at the captain’s desk with their hands in the air in the
presence of two strangers. They each believed a robbery was occuring and hid. Zaldana
testified that he chose the first spot he hid “mainly for safety” because he feared a
robbery was occurring. Once he heard the gunfire, he feared for his life. When Gonzalez
saw Gilger and Kuehlthau with their hands in the air, he hid because he did not know
what was going to happen. He hid so the robbers would not see him. He witnessed
Morales and Calloway fighting over the gun from a distance of about 20 feet. When the
gunshots were fired, he ducked farther down out of sight of the captain’s desk.
There is sufficient evidence that Calloway and Bridges prevented Gonzalez and
Zaldana from resisting the robbery by force or fear. (People v. Abilez, supra¸ 41 Cal.4th
at p. 507.) The convictions of robbing Gonzalez and Zaldana are supported by sufficient
evidence.
IV
Bridges argues the trial court erred by informing the jury prior to voir dire that
Calloway had been convicted of four counts in the first trial. He contends the error was
prejudicial because “the jury would necessarily think the conviction of a codefendant
necessarily implied appellant Bridges was also guilty.” Respondent contends that the
issue was forfeited because Bridges raised no objection below. Bridges argues the issue
affected his substantial rights and therefore may be raised for the first time on appeal.
We need not resolve this dispute because we find no error.
After the first trial ended in a mistrial as to Calloway on some of the special gun
use allegations on the robbery counts for which he had been convicted, the prosecution
chose to recharge those special allegations in the third amended information. As a result,
at the second trial, as to Calloway, the jury was required to consider only special
14
allegations as to count 1 (robbery of Morales), count 3 (robbery of Gilger), and count 5
(robbery of Kuehlthau). The prosecution proceeded against Bridges at the second trial on
the theories that he was a principal or that he aided and abetted Calloway and the
unidentified third robber.
At the beginning of jury selection in the second trial, the court listed the charges
against the two defendants, including the special allegations. The court then briefly
summarized the case: “Ladies and Gentlemen, this involves several felony counts as I
have listed them. All the crimes are alleged to have occurred during a single incident, a
take-over robbery of a Trader Joe’s in the city of Eagle Rock. [¶] Mr. Calloway has been
found guilty of assault with a firearm and three counts of robbery with personal use of a
firearm arising out of this case in a prior proceeding. It will be up to you to resolve, if
you can, the remaining charges and allegations against Mr. Calloway as well as the
charges and allegations against Mr. Bridges.” Neither defendant objected to this
summary, or to the revelation that Calloway was convicted of some charges in the first
trial.
Throughout the second trial, the court and counsel addressed the impact of
Calloway’s convictions in the first trial. The first question put to Calloway on direct
examination by his counsel was whether he previously had been convicted of the
robberies of Gilger, Kuehlthau, and Morales. Calloway answered that he had, in addition
to a charge of assault with a semi-automatic firearm on Morales. Counsel for Bridges did
not request an instruction that would have limited the use of Calloway’s convictions at
the first trial. In the colloquy over jury instructions, the court and counsel discussed how
the verdict forms should be worded since the jury was being asked to decide only the
truth of the special allegations as to three counts (1, 3, and 5) on which Calloway was
convicted in the first trial. The court noted that the jury was informed of the convictions
in the first trial before voir dire began and that the verdict forms would clearly state that
the jury was to determine only the truth of the special allegations as to those counts. In
addition, counsel for Calloway said he intended to make this clear in his argument. The
court suggested the parties agree on the language for the verdict forms.
15
In People v. Sorrels (2012) 208 Cal.App.4th 1155 [Sorrels], the Court of Appeal
acknowledged: “The trial court’s reading of a brief overview of the facts before
conducting voir dire is commonplace in modern-day trial courts. In fact, judges are
encouraged to give such statements to the juries for a number of reasons. First, it serves
as a means of giving the jurors an introduction to the case. . . .” (Id. at p. 1164.) The
Sorrels court noted “[i]ndeed, the California Standards for Judicial Administration,
Standard 4.30, subdivision (b)(8), direct a criminal trial judge during voir dire to inform
the jury of the charges against a defendant, and the section of the Penal Code alleged to
have been violated. Most importantly, the standard directs the trial judge to ‘describe the
offense[s].’ Further, the trial judge is to inform the jury that ‘the defendant has pleaded
not guilty, and the jury will have to decide whether the defendant’s guilt has been proved
beyond a reasonable doubt.’ (Ibid.)” (Ibid.) In that case, the trial court gave a lengthy
factual summary of the crimes. On appeal, the court found no error. It cited People v.
Rodriguez (1986) 42 Cal.3d 730, 766: “The trial court has sound discretion to summarize
the evidence with no limitations on its content or timing so long as it is ‘accurate,
temperate, nonargumentative, and scrupulously fair.’ [Citation.]” (Sorrels, supra, 208
Cal.App.4th at p. 1165.)
Bridges relies on the general principle that evidence that a codefendant has been
convicted of the same crime is extremely prejudicial, citing People v. Cummings (1993)
4 Cal.4th 1233, 1322 [Cummings], People v. Leonard (1983) 34 Cal.3d 183, 188–190,
and People v. Andrews (1983) 149 Cal.App.3d 358, 364–366). The cases are inapposite.
In Cummings, evidence of defendant’s guilty pleas to a series of robberies was admitted
at the trial on separate charges, including murder, against Cummings and his
codefendant, Kenneth Gay. The trial court reasoned that the evidence was admissible
because it corroborated a witnesses’ testimony regarding the remaining charges. The
Supreme Court rejected that theory, finding that the attenuated probative value of the
prior pleas was outweighed by the prejudicial impact. (4 Cal.4th at p. 1322.) The
Cummings court also rejected the alternative theory that the plea evidence was admissible
because the other witness’ credibility was at issue, finding it more prejudicial than
16
probative. (Ibid.) In Cummings, separate juries were convened to determine the guilt of
the two codefendants. (Id. at p. 1255.) The Supreme Court’s ruling was that the fact
Cummings was found guilty based on his plea was not admissible as to Gay. But here, a
single jury was convened, which had to determine Calloway’s guilt on the special
allegations on the charges for which he was previously convicted, additional charges
against Calloway, and all charges against Bridges. There is no indication in the record
that Bridges sought to sever his trial from Calloway’s, or that he sought a separate jury.
People v. Leonard, supra, 34 Cal.3d 183, cited by Bridges, also is distinguishable.
In that case, Leonard and another person, Johnson, were charged with robbing two
victims in a single incident. Johnson pled guilty. At trial, the only charges were against
Leonard, but the jury was told of Johnson’s guilty plea. The Court of Appeal held that
the questionable probative value of the plea was far outweighed by the prejudicial impact.
(Id. at pp. 188–189.) Unlike the jury in our case, the jury in Leonard, was not asked to
determine the truth of any special allegations against Johnson. The third case cited by
Bridges, People v. Andrews, supra, 149 Cal.App.3d 358 is inapposite for similar reasons.
In that case, the jury was mistakenly given a newspaper article reporting a codefendant’s
guilty plea to charges arising from one of the incidents in which Andrews was charged.
That jury did not have before it any issue regarding the guilt of the codefendant, unlike
the jury here.
We find no abuse of the trial court’s discretion in advising the jury of Calloway’s
convictions in the first trial. That information was necessary in order for the jury to
determine the special allegations against Calloway based on those convictions. In
addition, the information was relevant in the second trial because Bridges’ guilt of the
robberies of Gilger, Kuehlthau, and Morales was prosecuted on an aiding and abetting
theory.
V
The remaining contentions on appeal concern claims of sentencing error.
Calloway argues the trial court erred in denying his motion to dismiss a prior 1987 strike
17
conviction allegation, based on an attempted murder. He also contends the trial court
should have stayed the sentence on count 1 from the first trial, the robbery of Morales,
under section 654. Bridges argues, and respondent concedes, that Bridges’ sentence for
robbing Gilger should have been stayed under section 654.
A. Three Strikes
The trial court has the discretion under section 1385, subdivision (a) to strike prior
conviction allegations brought under the Three Strikes law. (People v. Leavel (2012)
203 Cal.App.4th 823, 836 (Leavel), citing People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 529-530 (Romero).) We review the trial court’s ruling on such a motion
for abuse of discretion. (Id. at p. 837) “The burden is on the party challenging the
sentence to clearly show the sentence was irrational or arbitrary. [Citation.]” (Ibid.) An
abuse of discretion is demonstrated only in limited circumstances, for example, when the
trial court was unaware of its discretion to dismiss or where it considered impermissible
factors in declining to dismiss. (Ibid; People v. Carmony (2004) 33 Cal.4th 367, 378.)
We will not reverse a sentence “merely because reasonable people might disagree. ‘“‘An
appellate tribunal is neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’”’” (Ibid, quoting People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 978.)
The factors the trial court may consider in ruling on a motion to strike a prior
strike conviction allegation are well established: “‘[T]he court in question must consider
whether, in light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.’ (People v. Williams (1998) 17 Cal.4th 148, 161.)”
(Leavel, supra, 203 Cal.App.4th at pp. 836-837.)
Calloway had a sustained juvenile petition for robbery in 1981; a conviction for
attempted murder in 1987 for which he was sentenced to seven years in state prison; a
1992 federal conviction for conspiracy to distribute cocaine for which he was sentenced
18
to 25 years in federal prison, and in 2001 he had a conviction for felony sale of narcotics
and was sentenced to three years in state prison.6 The 1987 attempted murder strike
allegation was found true by the trial court after the verdicts were returned in the first
trial.
Before the start of the second trial, Calloway’s counsel filed a motion7 to strike the
allegation of the 1987 attempted murder strike. He argued that Calloway was only 20
years old in 1987, and that his only convictions in the interim were narcotics related. He
contended that Calloway chose not to kill or severely injure the victims in the present
case, although he had the opportunity to do so. Counsel also referenced a letter written
on behalf of Calloway by a jail chaplain, who said he had only written one other such
letter in 23 years in that position. Counsel cited Calloway’s cooperation in his defense
and recognition that he deserved to be punished for his actions. He contended that
Calloway’s actions were influenced by narcotics. He urged the court to sentence
Calloway to a term of 10 years in state prison, arguing that he did not deserve the
equivalent of a life sentence.
The prosecutor argued that Calloway did not come within the spirit of Romero,
supra, 13 Cal.4th 497 since “[h]is prior conviction was involving shooting someone in
which Mr. Calloway forced someone to grab a gun and forced him to shoot at someone
involving drug transactions. And in turn Mr. Calloway shot at that individual.” He also
emphasized the danger presented when Calloway entered the Trader Joe’s with a loaded
gun when at least nine employees were present. He argued that danger was demonstrated
when Morales was shot in a struggle with Calloway. The prosecutor argued that society
would not be safe if Calloway was given a lesser sentence. He contended that Calloway
had failed to gain wisdom and judgment from his experiences and asked for the
maximum sentence.
6
The court previously struck a second strike allegation of a 1987 conviction for
conspiracy to commit murder (§§ 182/187).
7 This motion is not in the record on appeal.
19
The trial court noted that it had continued the sentencing hearing for two days in
order to carefully review the file so the decision on striking the prior would not be
rushed. The court denied the motion. It indicated that since Calloway had engaged in
conduct which could easily have resulted in the death of another person, an absolutely
clean post-conviction record and extraordinary circumstances would have to be
demonstrated to warrant granting the motion. The court emphasized Calloway’s history
of convictions and repeated returns to criminal conduct after release. The court
concluded that the prior prison terms did not convince Calloway to lead a law-abiding
life, and stated that it would not show leniency on this record. The court sentenced
Calloway to aggregate sentence of 29 years four months on the convictions in the first
trial, much less than the sentence requested by the prosecutor.
Calloway characterizes the trial court as having a “pre-disposition to not strik[e]
his single stale ‘strike’ prior felony conviction.” He argues the court never genuinely
considered granting the motion. He minimizes his criminal conduct between the 1987
attempted murder and the Trader Joe’s robbery. He contends that he refrained from
committing violence in the current case, failing to acknowledge that Morales suffered a
serious gunshot wound to his leg.
We find no abuse of the trial court’s discretion in declining to strike the 1987
attempted murder strike allegation. Calloway’s criminal history and the violence of the
present crime establish him to be a recidivist well within the spirit of the Three Strikes
law. He did not refrain from committing crimes despite repeated incarcerations. The
trial court recognized its discretion and took into account the relevant factors in the
exercise of that discretion. (People v. Philpot (2004) 122 Cal.App.4th 893, 907.)
Calloway did not rebut the strong presumption that a court acts within its discretion in
imposing a sentence under the Three Strikes law. (In re Large (2007) 41 Cal.4th 538,
550-551.)
20
B. Section 654
1. Calloway
Calloway argues the trial court erred in imposing sentence on both counts 1 and 2
based on the convictions in the first trial. He contends that sentence on count 1 should
have been stayed. Both counts involved victim Morales. Count 1 is second degree
robbery (§ 211) and count 2 is assault with a semi-automatic weapon (§ 245, subd. (b)).
Count 2 was made the base term, for which Calloway was sentenced to the high term of 9
years, doubled to eighteen years in light of the prior strike finding, plus 10 years for the
gun use under section 12022.5, subdivision (a), for a total sentence of 28 years on this
count. On count 1, the court imposed a sentence of three years, doubled to six years, plus
one-third of the sentence (3 years and 4 months) based on the personal use of a firearm
(§ 12022.53, subd. (b)), for a total sentence of nine years and four months, to run
concurrent to count 2. Calloway contends that these violations arose from an indivisible
transaction for which he may receive only one punishment under section 654.
“Section 654, subdivision (a), provides in pertinent part: ‘An act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.’ It has long been
held that section 654 bars multiple punishments for separate offenses arising out of a
single occurrence where all of the offenses were incident to one objective. [Citations.]”
(People v. Calderon (2013) 214 Cal.App.4th 656, 661.)
In People v. Wynn (2010) 184 Cal.App.4th 1210, 1214, a loss prevention officer at
a store observed the defendant shoplifting. She followed him from the store and
confronted him in the parking lot, identifying herself. The defendant took a nunchaku
from his pants and started swinging it. Several employees eventually subdued him,
although one suffered a head injury in the melee. The defendant was convicted of a
number of crimes, including burglary and three counts of assault with a deadly weapon.
(Id. at pp. 1213–1214.) On appeal, he argued that his sentence for burglary, among
others, should have been stayed. The Court of Appeal applied the established test to
21
determine whether the offenses were indivisible for purposes of section 654, which turns
on the ‘“defendant’s intent and objective, not the temporal proximity of his offenses.”’
(Id. at pp. 1214–1215, quoting People v. Harrison (1989) 48 Cal.3d 321, 335.) “Where
the commission of one offense is merely ‘“a means toward the objective of the
commission of the other,”’ section 654 prohibits separate punishments for the two
offenses. [Citation.]” (Id. at p. 1215.)
On appeal, we apply the substantial evidence standard of review to a
determination of whether the defendant acted with more than one objective. (People v.
Wynn, supra, 184 Cal.App.4th at p. 1215.) At sentencing after the first trial, the trial
court said it did not believe that section 654 applied to the assault with a deadly weapon
count. “When a trial court sentences a defendant to separate terms without making an
express finding the defendant entertained separate objectives, the trial court is deemed to
have made an implied finding each offense had a separate objective. (People v. Osband
(1996) 13 Cal.4th 622, 730–731.)” (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
Calloway argues that the robbery and assault on Morales were committed with the
single objective of robbing the Trader Joe’s store. He contends that nothing in the record
supports the implied finding that he harbored multiple and independent objectives.
We disagree. The Court of Appeal in People v. Wynn, supra, 184 Cal.App.4th
1210, found substantial evidence that the defendant’s objective during the burglary was
to obtain cigarettes, but that his objective during the assault was to avoid being arrested
for theft. (Id. at p. 1216.) Our case is similar. There is substantial evidence that
Calloway harbored the intent to rob the Trader Joe’s store; he admitted as much in his
testimony. But the assault charge arises from his physical altercation with Morales,
during which Morales was shot. Like the security guard in Wynn, Morales was
attempting to apprehend Calloway. There is substantial evidence that Calloway
committed the assault as he sought to avoid capture and arrest.
Respondent relies on another similar case, People v. Watts (1999) 76 Cal.App.4th
1250, which arose from the armed robbery and assault of restaurant employees late at
night. The trial court concluded that the robberies were separate from the assaults and
22
imposed separate punishments for each. (Id. at p. 1264.) On appeal, Watts argued that
the robberies and assaults were part of a single course of conduct committed with the
intent to commit robbery. (Id. at pp. 1264–1265.) The appellate court found substantial
evidence that each victim was assaulted either as she was attempting to comply with her
assailant’s demands for money, or was attempting to escape. It concluded that the
robberies “were well under way at the time the assaults occurred,” and that this evidence
supported the conclusion that the assaults were not simply a means of committing the
robberies. Substantial evidence supported the trial court’s conclusion that the assault of
each victim was a separate act with a separate objective, allowing the court to impose
separate sentences for each crime. (Id. at p. 1265.) Similarly, Calloway shot Morales
after the robbery was well underway, after Morales attempted to apprehend him or to
prevent the robbery.
We find substantial evidence to support the trial court’s implied finding that
Calloway entertained independent objectives in robbing and assaulting Morales. We find
no error in the imposition of punishment for each count.
2. Bridges
The trial court found that section 654 applied to Bridges’ convictions for assault as
to victims Bates (count 12), Hilton (count 13), Arteaga (count 14), Morales (count 15,
and Kuehlthau (count 16), finding Bridges acted with the single objective of committing
robbery. But the trial court did not apply the same reasoning to the assault and robbery
involving victim Gilger (counts 3 and 11). The trial court selected count 11 (assault on
Gilger) as the principal term, imposing a total term of 17 years.8 On count 3, the robbery
of Gilger, the court imposed one-third the midterm of three years, doubled, for a total of
two years four months.
Respondent concedes that the trial court should have stayed the sentence on count
3 pursuant to section 654 because of its finding that Bridges engaged in an indivisible
8The court selected the midterm of six years because Bridges did not personally
use a gun, doubled pursuant to the prior strike conviction, plus a consecutive five year
enhancement under section 677, subdivision (a).
23
course of conduct with the objective of robbing the Trader Joe’s store. It observes that
there is no reason to treat Gilger differently from the other victims in the counts for
assault which were stayed. It contends the sentence on count 3, the shorter of the two
convictions as to Gilger, should be stayed, and Bridges’ sentence reduced by two years,
four months.
We agree with the parties that section 654 applies to prohibit punishing Bridges
for both the assault and robbery of Gilger. We shall stay the sentence on count 3 and
direct the entry of a new judgment reducing Bridges’ sentence by two years, four months.
VI
Respondent also asks that we modify the Calloway abstract of judgment to reflect
the imposition of a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40
court security fee (§ 1465.8, subd. (a)(1)) for each of the 12 counts for which he was
convicted, for totals of $360 and $480 respectively, and that we modify the Bridges
abstract of judgment to reflect the imposition of a $30 criminal conviction assessment
(Gov. Code, § 70373) and a $40 court security fee (§ 1465.8, subd. (a)(1)) for each of the
14 counts for which he was convicted, for totals of $420 and $560 respectively.
Bridges, joined by Calloway, argues the issue was forfeited or waived by the
prosecution’s failure to raise it before the trial court. He cites People v. Tillman (2000)
22 Cal.4th 300, 302-303 (Tillman), which held that the People could not request
imposition of restitution and parole revocation fines on appeal because no objection had
been raised in the trial court.
In People v. Smith (2001) 24 Cal.4th 849, the Supreme Court clarified the Tillman
holding and concluded that a mandatory fee may be corrected on appeal even if the error
was not raised in the trial court. (Id. at p. 853.)
Both the criminal conviction assessment and the court security fee are required
(People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, § 70373]; People
v. Schoeb (2005) 132 Cal.App.4th 861, 865 [§ 1465.8, subd. (a)(1)]), and therefore may
be modified on appeal despite the failure of the People to object at trial.
24
At sentencing, the trial court stated that each defendant was to pay a $30 criminal
conviction assessment (Gov. Code, § 70373) and a $40 court operations assessment fee
(§ 1465.8). The Bridges abstract of judgment correctly reflects his 14 felony convictions.
But the criminal conviction assessment imposed under Government Code section 70373
was $360 rather than the correct figure of $420 (14 times $30). The fee imposed under
section 1465.8 was $40 total, rather than the correct figure of $560 (14 times $40).
Calloway’s abstract of judgment reflects his 12 felony convictions. The criminal
conviction assessment is $360, which is correct. The court security fee imposed under
section 1465.8 is $200 rather than the correct figure of $480 (12 times $40). We modify
the judgments of conviction pursuant to People v. Smith, supra, 24 Cal.4th at page 853 to
reflect the correct amounts.
DISPOSITION
The judgment of conviction as to Calloway is modified to provide for a court
security fee of $480 under section 1465.8. The trial court is directed to amend the
Calloway abstract of judgment to reflect this change. As modified, the judgment of
conviction as to Calloway is affirmed in all other respects. The sentence imposed on
Bridges for count 3 (robbery of Gilger) is stayed and his total sentence reduced
accordingly. The Bridges abstract of judgment must be modified to reflect that the
sentence on count 3 is stayed and the aggregate sentence reduced, and that a criminal
conviction assessment of $420 (Gov. Code, § 70373), and a court security fee of $560
25
(§ 1465.8) are imposed. The trial court is directed to amend the Bridges abstract of
judgment to conform to these changes. In all other respects, the judgment of conviction
as to Bridges is affirmed. The clerk is directed to forward copies of the correct abstracts
of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
26