People v. Chavez CA3

Filed 8/24/20 P. v. Chavez 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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, C080117
Plaintiff and Respondent, (Super. Ct. No. 11F08010)
v. ORDER MODIFYING
OPINION AND DENYING
VINCENT FLAVIO CHAVEZ et al., REHEARING
Defendants and Appellants. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on August 10, 2020, be modified as
follows:
1. On page 14, footnote 6, the last sentence of the footnote is replaced with the
following sentence:
Those types of allegations—including most of Diez’s claims here—may be raised
on appeal even if not raised at trial. (Ibid.)
1
2. On page 17, before part III of the discussion, the following paragraphs are
added to the end of part II of the discussion:
In a petition for rehearing, Diez suggests that even if the instruction in Debose
were correct, the same cannot be said of the instruction here. That is because the
instruction in Debose, unlike that here, said a robbery “ ‘is still in progress so long as
[the] immediate pursuers are attempting to capture the perpetrator or to regain the stolen
property.’ ” (Debose, supra, 59 Cal.4th at p. 204, italics added.) Although the
instruction in Debose also had language echoing that here—in particular, it said “ ‘[a]
robbery is complete when the perpetrator has eluded any pursuers, has reached a place of
temporary safety, and is in unchallenged possession of the stolen property after having
effected an escape with the property’ ” (ibid.)—its additional language that a robbery is
still in progress when a defendant is fleeing “immediate” pursuers, Diez suggests,
provided a critical clarification that was missing here.
We reject the argument. Again, in describing when a robbery is complete, both
the trial court’s instruction here and the court’s instruction in Debose used language that,
in our view, was not meaningfully different. And because the Debose court found the
language there “correctly stated the law” (Debose, supra, 59 Cal.4th at p. 204), we find
the same true here. That said, we acknowledge the instruction in Debose was more
expansive. Relevant here, beyond discussing when “ ‘[a] robbery is complete,’ ” it also
said a robbery “ ‘is still in progress so long as [the] immediate pursuers are attempting to
capture the perpetrator or to regain the stolen property.’ ” (Ibid.) But in noting the
absence of this language in the instruction here, Diez has at most shown the trial court’s
instruction was incomplete, not improper. That, however, is not ground for reversal.
“ ‘Generally, a party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.’ [Citation.]” (People v. Hudson, supra,
38 Cal.4th at pp. 1011-1012.) And because Diez never requested his preferred
2
“ ‘clarifying or amplifying language’ ” about “immediate” pursuers at the trial level or
even in his opening appellate brief, we find the issue forfeited. (Ibid.)
This modification does not change the judgment.
BY THE COURT:
/s/
BLEASE, Acting P.J.
/s/
MURRAY, J.
/s/
BUTZ, J.
 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
3
Filed 8/10/20 P. v. Chavez CA3 (unmodified opinion)
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, C080117
Plaintiff and Respondent, (Super. Ct. No. 11F08010)
v.
VINCENT FLAVIO CHAVEZ et al.,
Defendants and Appellants.
Two armed men robbed a couple in a Best Buy parking lot and, after a third man
pulled up in an SUV, the two robbers jumped in the SUV and fled. Minutes later, and
following a brief chase, officers stopped and arrested defendants Vincent Flavio Chavez,
Martin Rudolfo Diez, and a third codefendant, who were still carrying loot from the
robbery. A jury afterward convicted Chavez and Diez of second degree robbery and
resisting or obstructing a peace officer. It also found Chavez used a firearm in the
commission of the robbery.
1
Both Diez and Chavez now appeal. Diez raises four arguments in his appeal,
contending (1) the admission of his postarrest statement to the third codefendant—in
which Diez stated, “don’t say anything, ask for a lawyer”—violated his First Amendment
rights and Evidence Code section 352; (2) the trial court wrongly instructed the jury
about aiding and abetting a robbery; (3) the prosecutor committed prosecutorial
misconduct in referring to the “conscience of the community,” in stating his personal
thoughts about the facts, and in asking an officer if he had “any question in [his] mind
that [he] had arrested an innocent man” when he apprehended Chavez; and (4) the trial
court wrongly admitted a photograph showing Diez pointing upward—a gesture he
contends the jury could have interpreted as a gang sign.
Chavez joins all but Diez’s instructional error claim and offers four additional
arguments. In particular, he asserts (1) the court’s errors, even if not individually
prejudicial, were cumulatively prejudicial; (2) insufficient evidence supported the jury’s
finding that he personally used a firearm during the commission of the robbery; (3) he is
entitled to two additional days of presentence custody credit; and (4) we should remand
to allow the trial court to exercise its newly granted discretion under Penal Code section
12022.53 to strike his firearm enhancements.
We agree remand is appropriate to allow the trial court to consider whether to
strike or dismiss Chavez’s firearm enhancements. We also agree Diez and Chavez are
both entitled to two additional days of presentence custody credit. In all other respects,
we affirm.
BACKGROUND
I
Factual Background
Around 7:00 p.m. on November 27, 2011, Susan B. and Greg S. were approached
by two men in a Best Buy parking lot. Both men had covered their faces with their shirts.
One “brandished” a gun at Susan B. and demanded her purse. The other showed Greg S.
2
a gun in his coat. After Susan B. handed over her purse, she heard someone yell, “hurry”
and “get in the car.” The two robbers then jumped in an SUV that had pulled up beside
them and fled. Susan B. memorized the license plate “as best [as she] could” and called
911.
Minutes after the robbery was reported, several police officers spotted a Ford
Explorer matching the description Susan B. provided. As the officers gave pursuit, the
Explorer turned off its headlights and pulled onto a street that ended in a cul-de-sac.
After the Explorer stopped at the end of the cul-de-sac, one of the officers saw three
people flee the SUV on foot. The pursuing officers promptly caught and arrested two of
the three fleeing suspects—Diez and Michael Barajas.1 As they did, Diez told Barajas,
“Hey, cousin, don’t say anything, ask for a lawyer.” Shortly after, the officers found the
third suspect, Chavez, hiding in a nearby dumpster.
The officers afterward searched in and around the Explorer. One officer found
Susan B.’s purse and some of her other possessions in the Explorer, and another found in
the middle of the street, near the Explorer, a backpack containing a loaded Smith &
Wesson .357-caliber revolver, jewelry, and a notebook listing various names, including
Chavez’s name and his mother’s name. One of the officers also found a cell phone that
Diez later claimed was his. On searching the phone, the officer found a photograph taken
the night before of a .357-caliber revolver that matched the gun found in the backpack,
and a text message in which Diez offered to sell a “357 magnum.” The officers also later
found Susan B.’s cell phone in Barajas’s jacket pocket.
About 30 to 40 minutes after the robbery, officers brought Susan B. and Greg S. to
the scene to determine if they recognized Diez, Chavez, or Barajas. Although neither
Susan B. nor Greg S. could positively identify any of the three suspects, Susan B. said the
1 The third codefendant Michael Barajas, who is not a party to this appeal, resolved
his case by plea prior to trial.
3
height and body type of two of the men were consistent with the two men who robbed her
and Greg S. She said Chavez looked “familiar,” though she was “not certain,” and said
she was “not sure” about Barajas. But she said Diez was “not familiar.”
Both Susan B. and Greg S. identified the Explorer—which had a magnetic sign on
the driver’s door with Diez’s cell phone number and the name “Shine on Productions”—
as the SUV involved in the robbery.2 Both also said the Smith & Wesson .357-caliber
revolver found in the backpack appeared to be one of the guns used in the robbery.
Before being brought on scene, Greg S. had previously described the gun held by one of
the robbers as a .22-caliber handgun—though the officers did not find a gun with a
similar caliber that evening. The following day, however, after a woman reported seeing
a gun in the gutter, an officer found a loaded Lorcin .25-caliber handgun in the gutter of
the street where Diez, Chavez, and Barajas were apprehended.
II
Procedural Background
Diez and Chavez were charged with second degree robbery (Pen. Code, § 211),
concealing stolen property (Pen. Code, § 496, subd. (a)), and resisting or obstructing
peace officers who were discharging their official duties (Pen. Code, § 148, subd. (a)(1)).
Both were also charged with a firearm enhancement relating to the robbery count (Pen.
Code, § 12022, subd. (a)(1)) because, the prosecution alleged, both were principals in the
offense and at least one principal personally used a firearm during the commission of the
robbery. Chavez was further charged with a second firearm enhancement (Pen. Code,
§ 12022.53, subd. (b)) because, the prosecution alleged, he personally used a firearm
during the commission of the robbery.
2 At the time of the robbery, the Explorer was registered to a person named Javier
Perez. Investigators attempted and were unable to locate Perez.
4
The jury found both Diez and Chavez guilty of second degree robbery and
resisting or obstructing a peace officer. It also found true the two firearm enhancements
alleged against Chavez, but found not true the one firearm enhancement alleged against
Diez.
The trial court sentenced Diez to state prison for five years on the robbery count
and imposed no additional time on the obstruction count. It sentenced Chavez to state
prison for three years on the robbery count and an additional 10 years for the
enhancement based on his personal use of a firearm. The court stayed the sentence on
Chavez’s other firearm enhancement, per Penal Code section 654, and imposed no
additional time on the obstruction count.
Diez and Chavez timely appealed.
DISCUSSION
I
Admission of Diez’s Statement to Barajas
Diez and Chavez first argue the court below erred in admitting Diez’s statement
telling Barajas to remain silent and to ask for an attorney. At trial, Diez objected to the
admission of this statement under the Fifth Amendment. But on appeal, Diez and Chavez
have taken a slightly different approach. They now argue the statement should have been
excluded under the First Amendment and Evidence Code section 352.3 We find neither
claim was preserved and, in any event, we find both claims fail on the merits.
A. First Amendment Claim
We start with the First Amendment claim.
Neither Diez nor Chavez preserved this claim on appeal. Although true Diez
challenged the admission of his statement under the Fifth Amendment, he never objected
3 Undesignated statutory references are to the Evidence Code.
5
on First Amendment grounds. Chavez, in turn, never objected to the admission of this
statement at all.
Diez and Chavez nonetheless maintain their objection was preserved for two
reasons. First, they claim Diez’s objection under the Fifth Amendment sufficiently
apprised the trial court of their unsaid objection under the First Amendment. But
although true an “objection will be deemed preserved if, despite inadequate phrasing, the
record shows that the court understood the issue presented” (People v. Scott (1978) 21
Cal.3d 284, 290), the record here does not support this finding. At trial, Diez grounded
his objection on the Fifth Amendment, and the court had no basis to suppose Diez’s
objection, “despite inadequate phrasing,” was somehow instead based on the First
Amendment.
Second, Diez and Chavez contend their First Amendment claim is preserved
because it raises a pure question of law. We disagree. Although we are “generally not
prohibited from reaching a question that has not been preserved for review by a party,”
the same is not true “when the issue involves the admission (Evid. Code, § 353) or
exclusion (id., § 354) of evidence.” (People v. Williams (1998) 17 Cal.4th 148, 161, fn.
6.) The only exception for considering evidentiary issues not raised at trial is if the
party’s objection at the trial level would have been futile. (See People v. Cage (2015) 62
Cal.4th 256, 282.) But neither Chavez nor Diez has claimed an objection on First
Amendment grounds would have been futile.4
In any event, Diez and Chavez’s argument fails on the merits. The free speech
clause of the First Amendment, made applicable to the states by the Fourteenth
4 Chavez did contend his objecting on Fifth Amendment grounds would have been
futile because the trial court already rejected Diez’s Fifth Amendment objection.
Although that logic might serve to preserve an objection on Fifth Amendment grounds, it
does not preserve an entirely different objection on First Amendment grounds.
6
Amendment, provides that “Congress shall make no law . . . abridging the freedom of
speech.” (U.S. Const., 1st Amend.; see Duncan v. Louisiana (1968) 391 U.S. 145, 148
[20 L.Ed.2d 491, 495].) But it does not govern the situation here. Diez made a statement
and the prosecution then related that statement to the jury. According to Diez, the
prosecution’s mere sharing of that statement violated his First Amendment rights. But
courts have long distinguished between a person’s right to express a belief and a person’s
right to exclude others from hearing that belief. Although a person’s beliefs are protected
by the First Amendment, “ ‘the Constitution does not erect a per se barrier to the
admission of evidence concerning one’s beliefs.’ ” (People v. Quartermain (1997) 16
Cal.4th 600, 629.) Rather, “ such evidence is admissible if relevant to some issue that is
being tried.” (Ibid.) And we find Diez’s effort to keep Barajas quiet—“don’t say
anything”—was certainly “relevant to some issue” in tending to show Diez’s
consciousness of guilt.
Diez’s offered cases do not hold otherwise. Those cases he cites involve persons
who were prosecuted or risked prosecution because of their speech. In In re Chase C.
(2015) 243 Cal.App.4th 107, for example, the court found a minor who verbally urged
other minors not to cooperate with police was wrongly convicted of unlawfully
interfering with police activity. (Id. at pp. 109-110.) In NAACP v. Button (1963) 371
U.S. 415, 428 [9 L.Ed.2d 405, 415], similarly, the United States Supreme Court found
unconstitutional a state law making it a crime for a person to “advise[] another that his
legal rights have been infringed and refer[] him to a particular attorney or group of
attorneys . . . for assistance.” (Id. at pp. 434, 437.) And in Houston v. Hill (1987) 482
U.S. 451 [96 L.Ed.2d 398], the court found unconstitutional a city ordinance making it
unlawful to interrupt a police officer in the performance of his or her duties. (Id. at pp.
454, 467.) But none of the concerns raised in these cases is present here. Neither Diez
nor Chavez was prosecuted because of their speech. Diez’s statement was offered as
evidence against him, true; but that is not the same as being punished because of speech.
7
A prosecutor who offers in evidence a defendant’s confession to a crime, for example,
has not punished that defendant for his or her speech. Rather, to the extent the defendant
is punished, it is because of the defendant’s underlying criminal conduct. The confession
is only evidence that supports the finding of criminal liability. The same is true here. We
thus decline to find Diez’s First Amendment rights were violated merely because the
prosecution repeated what he said.
B. Evidence Code Section 352 Claim
We turn next to Diez and Chavez’s claim under section 352.
Evidence may be excluded under section 352 if its probative value is substantially
outweighed by the probability that its admission would “(a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” In Diez and Chavez’s view, Diez’s statement carried
no probative value but was highly prejudicial in calling attention to the fact that Diez
sought to remain silent.
But neither Diez nor Chavez show they ever invoked section 352. To “trigger[]”
section 352, a defendant must “either expressly invoke[] Evidence Code section 352 as a
ground for objection, or at least affirmatively argue[] that the risk of prejudice outweighs
the relevance of the proffered evidence.” (People v. Anderson (1990) 52 Cal.3d 453, 477
(Anderson); see People v. Valdez (2004) 32 Cal.4th 73, 108 [noting “ ‘ “the general rule
that questions relating to the admissibility of evidence will not be reviewed on appeal in
the absence of a specific and timely objection in the trial court on the ground sought to be
urged on appeal” ’ ”].) But in the portion of the transcript Diez and Chavez reference,
only Diez offered an objection to the admission of this statement, and he neither
“expressly invoke[d] Evidence Code section 352” nor “affirmatively argue[d] that the
risk of prejudice outweighs the relevance of the proffered evidence.” (Anderson, at p.
477.)
8
Diez instead objected on Fifth Amendment grounds alone, suggesting that the
prosecution, in offering his statement, was wrongly commenting on his exercising his
right to remain silent. Although true Diez also contended admission of his statement
would prejudice him, that alone was insufficient to preserve on appeal his objection under
section 352. Evidentiary objections must “fairly inform the trial court, as well as the
party offering the evidence, of the specific reason or reasons the objecting party believes
the evidence should be excluded.” (People v. Partida (2005) 37 Cal.4th 428, 435;
Anderson, supra, 52 Cal.3d at p. 477.) But a party does not “fairly inform” the court or
the opposing party that it believes certain evidence should be excluded under section 352
merely by making sporadic claims of “prejudice” in the course of making a Fifth
Amendment objection. The trial court here, indeed, never understood Diez’s objection to
be based on section 352. As the court understood it, “the key issue” Diez raised
concerned whether the prosecution, in offering his statement, was “comment[ing] on the
exercise of the Fifth Amendment Right.” And the court ultimately rejected the claim
because it found Diez was “not invoking for himself,” but rather was “giving advice to
another co-defendant with regard to what that co-defendant should or should not do.”
Diez at that time could have informed the court he was also objecting under section 352,
and asked the court to analyze his objection on that ground. But he did not and he
“cannot argue the court erred in failing to conduct an analysis it was not asked to
conduct.” (Partida, at p. 435.)
Even assuming their objection on this ground was not forfeited, we would not find
the trial court abused its discretion in denying the objection.
We review a challenge to a trial court’s decision to admit or exclude evidence
under section 352 for abuse of discretion. (See People v. Anderson (2018) 5 Cal.5th 372,
402.) “As with all actions by a trial court within the exercise of its discretion, as long as
there exists ‘a reasonable or even fairly debatable justification, under the law, for the
action taken, such action will not be here set aside, even if, as a question of first
9
impression, we might feel inclined to take a different view from that of the court below as
to the propriety of the action.’ [Citation.]” (Gonzales v. Nork (1978) 20 Cal.3d 500, 507
(Gonzales).)
With this standard in mind, we consider whether, as Diez and Chavez contend, the
probative value of Diez’s statement was substantially outweighed by the risk of undue
prejudice.
We turn first to the probative value of Diez’s instructing Barajas to remain silent.
Diez contends his statement—like postarrest silence—was “ ‘insolubly ambiguous,’ ”
citing Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91], and thus carries no probative
value. We find differently. We agree, as Doyle provides, a defendant’s decision to
invoke his or her right to remain silent is “insolubly ambiguous.” (Id. at p. 617.) But a
defendant’s effort to keep another person silent is different. As courts have long
explained, a defendant’s willful attempt to dissuade a witness from testifying is
admissible to prove consciousness of guilt. (People v. Pinholster (1992) 1 Cal.4th 865,
945 [the defendant’s “threatening phone call” to dissuade a witness from testimony “is
clearly admissible to show consciousness of guilt”], disapproved on another ground in
People v. Williams (2010) 49 Cal.4th 405; People v. Edelbacher (1989) 47 Cal.3d 983,
1007 [“willful attempt to suppress evidence[] is admissible to prove consciousness of
guilt”].) And that remains true when a defendant attempts to dissuade a codefendant
from testifying, though we acknowledge a defendant’s motive may be more complicated
in that scenario. In some cases, a defendant may instruct a codefendant to remain silent
with the codefendant’s own best interest in mind. But on other occasions, perhaps most,
a defendant instructs a codefendant to remain silent for the very same reason a defendant
instructs nonparty witnesses to remain silent—to prevent that person from testifying
against the defendant. In that case, the defendant’s instruction carries significant
probative value in evincing the defendant’s state of mind of consciousness of guilt. (See
People v. Alexander (2010) 49 Cal.4th 846, 907 [the defendant’s statements tending “to
10
support an inference that he did not want” an alleged accomplice to talk to police were
relevant to show consciousness of guilt].)
Returning to the facts here, we do not find the trial court abused its discretion in
finding Diez’s statement relevant for this reason. The court had discretion to conclude
that Diez’s instruction to Barajas not to say anything—coming moments after Diez was
arrested following a failed attempt to flee—reflected Diez’s concern that Barajas might
provide the police with information that would incriminate Diez.
We consider next whether the probative value of Diez’s statement was
“substantially outweighed” by the risk of undue prejudice. Diez and Chavez contend the
statement’s admission was unduly prejudicial for two reasons. First, they argue the
introduction of Diez’s statement “was cumulative on the issue of consciousness of guilt,
since there was other evidence on the issue: flight.” But the trial court was not required
to handicap the prosecution and require it to elect between introducing Diez’s statement
or the evidence of flight. As one court explained, “[w]hile a trial judge might easily
conclude that a third or fourth witness to the same event or opinion would be cumulative,
it is the rare occasion when one of two different types of circumstantial evidence is
correctly ruled cumulative. Indeed, it is usually the accumulation of circumstantial
evidence which makes it convincing.” (People v. Thornton (2000) 85 Cal.App.4th 44,
48.)
Second, citing Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] and
similar cases, Diez and Chavez contend the use of Diez’s statement “inevitably called
attention to the fact that [he] himself sought to remain silent and to utilize an attorney to
represent him.” “In Griffin, ‘the United States Supreme Court declared that the Fifth
Amendment prohibits the prosecutor from commenting, either directly or indirectly, on
the defendant’s failure to testify in his defense.’ [Citation.]” (People v. Turner (2004) 34
Cal.4th 406, 419.) But we do not find Griffin’s prohibition violated here. In noting that
Diez instructed Barajas not to say anything, the prosecutor was not in any way
11
referencing Diez’s own failure to testify. He was instead commenting on Diez’s effort to
prevent someone else, Barajas, from testifying. The prosecutor contended that Diez was
effectively instructing Barajas not to “say anything that is going to bring us all down” and
not to “say how we just did this robbery.” The prosecutor then argued that this effort to
silence Barajas showed that “Diez [wa]s involved in the robbery.” But not once in this
argument did the prosecutor use Diez’s statement to Barajas in a manner to draw
attention to Diez’s failure to testify. Considering this context, we believe a jury would
not reasonably have understood the prosecutor’s introduction of Diez’s statement as
commentary on Diez’s own failure to testify. (Cf. Turner, at p. 421 [prosecutor’s
comments that the defendant “ ‘doesn’t have to talk to me’ ” and “ ‘I can’t talk to him’ ”
did not violate Griffin; “when viewed in context, the italicized statement referred to the
prosecutor’s inability to conduct a psychiatric examination of defendant—and not to
defendant’s failure to testify”].)
Although our research shows no other California court that considered this issue,
decisions from other jurisdictions are consistent with our own. For example, in United
States v. Warren (5th Cir. 1978) 578 F.2d 1058, reversed on other grounds (5th Cir.
1980) 612 F.2d 887, abrogated on other grounds in United States v. Bengivenga (5th Cir.
1988) 845 F.2d 593, the Fifth Circuit found the district court did not err in admitting the
defendant’s statement to his coconspirators “ ‘not to say anything.’ ” (Warren, at p.
1073.) Unlike commentary about a defendant’s invocation of his or her own right to
remain silent, the court explained, the admission of this statement “ ‘did not develop the
prejudicial picture of an accused remaining silent in the face of police interrogation at the
time of the arrest.’ ” (Id. at p. 1074.) Similarly, in State v. Nao (Hawaii Ct.App., Sep.
30, 2011, No. 29990) 2011 Hawaii App. LEXIS 1078, the Hawai‘i Intermediate Court of
Appeals found the lower court did not err in admitting the defendant’s statement to his
codefendant “to shut up, to not say anything to the police, and to ask for an attorney.”
12
(Id. at p. *2.)5 A jury would not, the court found, interpret the defendant’s statement as a
comment on the defendant’s exercise of his constitutional rights. (Id. at pp. *7-8.) And
finally, in Commonwealth v. Tervalon (1975) 463 Pa. 581, 594, the Pennsylvania
Supreme Court found no error when a prosecutor asked a defendant’s father whether he
advised the defendant “ ‘not to say anything further to the police.’ ” (Id. at p. 594.) The
court reasoned this question “did not either expressly or by reasonable implication
indicate that an adverse inference could be drawn from the failure of [the defendant] to
testify nor did it draw attention to his failure to do so.” (Id. at p. 595.) We reach a
similar conclusion with respect to Diez’s statement: The admission of his statement—
which evinced Diez’s efforts to silence Barajas—did not, as Diez and Chavez claim,
wrongly call attention to the fact that Diez himself sought to remain silent.
II
The Trial Court’s Instruction Under CALCRIM No. 1603
Diez next contends the trial court erred in using CALCRIM No. 1603 as the jury
instruction for aiding and abetting a robbery—the theory under which he was found
liable. CALCRIM No. 1603 reads the same today as at the time of trial: “To be guilty of
robbery as an aider and abettor, the defendant must have formed the intent to aid and abet
the commission of the robbery before or while a perpetrator carried away the property to
a place of temporary safety. [¶] A perpetrator has reached a place of temporary safety
with the property if he or she has successfully escaped from the scene, is no longer being
pursued, and has unchallenged possession of the property.” According to Diez, this
instruction misstates the law. In particular, he contends the “no longer being pursued”
5 Rule 8.1115 of the California Rules of Court generally prohibits the citation of
unpublished California opinions. But unpublished opinions from federal courts and other
states are not governed by rule 8.1115 and may be cited. (Haligowski v. Superior Court
(2011) 200 Cal.App.4th 983, 990, fn. 4.)
13
language wrongly suggests that robberies can be “ ‘retroactively revived’ by the police
later coming in pursuit,” causing “just about every robbery . . . [to] continue ad
infinitum.” We disagree.6
We begin with the common ground. “For purposes of determining aider and
abettor liability, the commission of a robbery continues until all acts constituting the
offense have ceased”—that is, until “the carrying away of the loot to a place of temporary
safety.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165 (Cooper), italics omitted.)
In evaluating whether robbers have reached a “place of temporary safety,” the California
Supreme Court has long found relevant whether the robbers are being pursued following
the theft. As the court explained in People v. Boss (1930) 210 Cal. 245, the crime of
robbery is not complete at the moment of the taking, but continues while the robbers
attempt to evade immediate pursuers. (Id. at p. 250 [robbery not complete if an officer is
in “immediate pursuit” of the robbers following the theft]; id. at p. 251 [“The defense of
felonious possession which is challenged immediately upon the forcible taking is a part
of the plan of robbery, or as the books express it, it is res gestae of the crime”].) At such
moments of flight, the court found, the robbers “have not won their way even
momentarily to a place of temporary safety and the possession of the plunder is nothing
more than a scrambling possession.” (Id. at pp. 250-251.)
Diez agrees with these background principles. But he contends CALCRIM No.
1603 wrongly departs from them in including the “no longer being pursued” language—
language he claims is broad enough to prevent any robbery from ending, for if the police
6 The Attorney General contends Diez forfeited this objection by failing to raise it at
trial. But although objections to instructions that are “correct in law” but inappropriate
on the facts of the case may be forfeited, the same is not true for claims that the trial
court’s instructions included “an incorrect statement of the law.” (People v. Hudson
(2006) 38 Cal.4th 1002, 1012.) Those types of allegations—including Diez’s claim
here—may be raised on appeal even if not raised at trial. (Ibid.)
14
eventually come in pursuit, Diez asserts, the robbery will be “retroactively revived.” We
read the instruction differently. CALCRIM No. 1603, in referring to a “place of
temporary safety,” expressly contemplates that the place of safety need only be
temporary. So if, for a temporary period, a robber “has successfully escaped from the
scene, is no longer being pursued, and has unchallenged possession of the property,” that
is enough for the robber to be found to have reached a place of temporary safety—at
which point, the robbery is complete and any later pursuits are irrelevant. (See Cooper,
supra, 53 Cal.3d at pp. 1164-1165.) Diez’s concern that a robbery will somehow be
“ ‘retroactively revived’ by the police later coming in pursuit” is thus unfounded.
Diez also suggests the “no longer being pursued” language is improper because
the California Supreme Court has not expressly endorsed it. But that alone is not ground
for finding a jury instruction invalid. Not all jury instructions have been considered by
the high court (see, e.g., People v. Riggs (2008) 44 Cal.4th 248, 307 [declining to address
the propriety of several jury instructions]), yet they are not for that reason alone
improper. In any event, the court has found jury instructions similar to CALCRIM No.
1603 to be “correct.” In People v. Debose (2014) 59 Cal.4th 177 (Debose), the court
considered a trial court’s instructions concerning the duration of a robbery. In doing so,
it expressly found “correct” a jury instruction providing that “ ‘[a] robbery is complete
when the perpetrator has eluded any pursuers, has reached a place of temporary safety,
and is in unchallenged possession of the stolen property after having effected an escape
with the property.’ ” (Id. at pp. 204-205, italics added.)7 That instruction derived from
7 In full, the instructions in Debose stated: “ ‘For the purposes of determining
whether an unlawful killing has occurred during the commission or attempted
commission of a robbery, the commission of the crime of robbery is not confined to a
fixed place or a limited period of time. [¶] A robbery is still in progress after the original
taking of physical possession of the stolen property while the perpetrator is in possession
of the stolen property and fleeing in an attempt to escape. Likewise it is still in progress
so long as [the] immediate pursuers are attempting to capture the perpetrator or to regain
15
CALJIC instructions that preceded CALCRIM and had been provided “since at least
1979.” (People v. Wilkins (2013) 56 Cal.4th 333, 343, fn. 2.)
We find the Debose court’s characterization of the CALJIC instruction as a
“correct statement of the law” sufficient to reject Diez’s claim here. (See Debose, supra,
59 Cal.4th at p. 205.) The CALJIC instructions in Debose vary somewhat from the
CALCRIM instructions used here. Under the CALCRIM instructions, the robbery is
complete if, among other things, the perpetrator is “no longer being pursued”; and under
the CALJIC instructions, the robbery is complete if, among other things, the perpetrator
has “eluded any pursuers.” But we find no meaningful difference between the two
instructions in this regard, and Diez does not contend otherwise. And because the
CALJIC instruction was found “correct” in Debose, we thus find the similar CALCRIM
instruction on pursuit here was also correct.
Diez acknowledges Debose found the CALJIC instructions offered a correct
statement of the law but asserts this statement from Debose is not controlling. Relying on
the rule that cases are only authority for issues they specifically consider (see Roberts v.
City of Palmdale (1993) 5 Cal.4th 363, 372), Diez contends Debose is not controlling on
this issue because it “did not involve a situation where the perpetrator was being pursued
by the police (or others).” But Diez is only half right. Although true Debose did not
involve any pursuit, the court nonetheless specifically found the trial court’s pursuit
instruction was correct—a conclusion that was critical to the court’s ultimate holding.
The defendant there objected “the trial court erred in giving the portion of the instruction
the stolen property. [¶] A robbery is complete when the perpetrator has eluded any
pursuers, has reached a place of temporary safety, and is in unchallenged possession of
the stolen property after having effected an escape with the property. [¶] A perpetrator
has not reached a place of temporary safety if the continued control over the victim
places the perpetrator’s safety in jeopardy. A perpetrator’s safety is in jeopardy if at any
unguarded moment, the victim might have managed to escape or signal for help.’ ”
(Debose, supra, 59 Cal.4th at p. 204, italics omitted.)
16
regarding pursuers, because there was no evidence that defendant was pursued.”
(Debose, supra, 59 Cal.4th at p. 205.) And the court agreed. (Ibid.) The court then
proceeded to review whether the error was harmless—a review that, notably, varies
depending on whether the instruction (1) misstated the law or (2) correctly stated the law
but was inapplicable to the facts of the case. Had the court found the instruction
misstated the law, as Diez contends, the instructional error would have required reversal
unless the error was harmless beyond a reasonable doubt. (See Cooper, supra, 53 Cal.3d
at p. 1171 [“instructional error, affecting an element of the offense charged, warrants
reversal unless it is harmless beyond reasonable doubt”].) But the court instead found the
pursuit instructions correctly stated the law but were inapplicable to the facts of the
case—a conclusion that resulted in a more lenient harmless error analysis. (Debose, at
pp. 205-206.) Because that finding was directly relevant to the court’s analysis, we reject
Diez’s suggestion that the court’s characterization of these instructions as “correct” was
mere dictum.
III
Allegations of Prosecutorial Misconduct
Diez and Chavez next claim the prosecution committed prosecutorial misconduct
on three separate occasions. First, they argue the prosecutor wrongly “urged the jury to
act as ‘the collective conscience of the community.’ ” Second, they contend the
prosecutor wrongly expressed his own thoughts about the case’s facts during closing.
And third, they allege the prosecutor committed misconduct in asking an officer “if he
had any doubt in his mind that he had arrested an innocent man.” We find none of this
conduct, however, amounts to reversible error.
A. The Prosecutor’s “Conscience of the Community” Comment
We begin with the prosecutor’s comment that the jurors are the “conscience of the
community.”
17
Because neither Diez nor Chavez objected to the comment at trial, we find their
objection forfeited on appeal. Although Diez acknowledged he never objected, he
contends “a prompt objection and jury admonition could not have unrung the bell,”
making any objection fruitless. But the California Supreme Court has already rejected
similar claims. In People v. Lang (1989) 49 Cal.3d 991, abrogated on other grounds in
People v. Diaz (2015) 60 Cal.4th 1176, the defendant objected to similar comments from
a prosecutor. (Lang, at p. 1041.) But because “no objection was made [at trial] and an
admonition would have cured any harm,” the court found “the issue is not reviewable.”
(Ibid.) We find the same here.
At any rate, we do not find the prosecutor’s comment inappropriate. Relying on
several federal cases, Diez contends the prosecutor characterized the jury as the
“conscience of the community” for the improper purpose of inflaming the jury’s
passions. (See United States v. Koon (9th Cir. 1994) 34 F.3d 1416, 1444 [“An appeal to
the jury to be the conscience of the community is not impermissible unless it is
‘specifically designed to inflame the jury’ ”], revd. in part on other grounds sub nom.
Koon v. United States (1996) 518 U.S. 81 [135 L.Ed.2d 392].) Diez also, relying on
cases taking issue with references to religious authority, contends the “conscience of the
community” statement was “akin to injecting religious ideas into closing argument” and
thus “ ‘diminished the jury’s sense of responsibility for its verdict.’ ” Neither argument is
persuasive.
First, the prosecutor’s “conscience of the community” comment here was clearly
not offered to inflame the jury’s passions. The prosecutor delivered this comment while
discussing the jury’s general function—or, as the prosecutor put it, while discussing
“juror 101.” At the start of his closing, the prosecutor told the jurors they should not base
their decision on “public opinion.” Nor, he stated, should they “just go along and agree
with the people who agree with me.” Instead, he explained, the jurors should provide
their “individual opinions” based on their review of the evidence. Immediately
18
afterward, he noted, “[a] jury serves as a collective conscience of the community. That
simply means you decide.” In this context, we cannot say the prosecutor’s comment was
‘ ‘specifically designed to inflame the jury.’ [Citations.]” (United States v. Koon, supra,34 F.3d at p. 1444.)
Second, the “conscience of the community” comment cannot be equated with
appeals to religious authority or other comments that dilute the jury’s sense of
responsibility. The California Supreme Court has made this clear in its capital cases.
Although the court has found certain references to the Bible and other religious authority
improper in capital cases, it has repeatedly found references to the conscience of the
community permissible in these cases. The court’s decision in People v. Sandoval (1992)
4 Cal.4th 155, 191, affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d
583], is an example of an improper religious reference—a case concerning a prosecutor’s
paraphrasing of a Bible passage “commonly understood as providing justification for the
imposition of the death penalty.” (Sandoval, at p. 193.) The court found the prosecutor
wrongly “invoke[d] higher or other law as a consideration in the jury’s sentencing
determination.” (Ibid.) But although religious references of this sort may diminish the
jury’s sense of responsibility, as Diez notes, the same is not true of general references to
the conscience of the community. The court explained as much in People v. Lucero
(2000) 23 Cal.4th 692. The defendant there, like Diez, contended the prosecutor’s
reference to the “conscience of the community” in closing “had the effect of diminishing
the jurors’ sense of personal responsibility.” (Id. at p. 734.) But the court disagreed,
finding the prosecutor “never suggested that the jury should abrogate its responsibility to
personally determine whether death was the appropriate penalty.” (Ibid.) It then
explained “[i]t was proper for the prosecutor to describe the jurors as the ‘conscience of
the community.’ ” (Ibid.)
19
B. The Prosecutor’s “I know” Comments During Closing Argument
We next consider the prosecutor’s expression of his personal thoughts about the
facts during closing argument. In closing, the prosecutor stated, “I’m telling you, even
though I don’t believe Mr. Diez actually got out and used the gun, I know that he had that
gun. I know the gun he had was provided for the robbery and I know he knew—.”
Following an objection, the prosecutor rephrased his argument. According to Diez and
Chavez, the prosecutor wrongly expressed his personal opinion about the strength of the
case and testified about facts that were never introduced in evidence. We disagree.
Prosecutors cannot “vouch for the strength of their cases by invoking their
personal prestige, reputation, or depth of experience, or the prestige or reputation of their
office, in support of it.” (People v. Huggins (2006) 38 Cal.4th 175, 206-207 (Huggins).)
Nor may they “ ‘ “attempt to bolster a witness by reference to facts outside the record.” ’
[Citation.]” (Id. at p. 206.)
But prosecutors can “ask the jury to believe the prosecution’s version of events as
drawn from the evidence.” (Huggins, supra, 38 Cal.4th at p. 207.) And that is true even
when prosecutors express their personal belief about what the evidence in the case shows.
In Huggins, for example, the “prosecutor argued, regarding the defense’s version of
events, ‘None of this can be true. Please believe me. He has lied through his teeth in
trying to sell this story to you.’ ” (Id. at p. 206.) But although the prosecutor suggested
he knew the defense’s version of events could not be true, the court found no misconduct
in his asking the jury to believe his “version of events as drawn from the evidence.” (Id.
at p. 207.) Similarly, in People v. Cummings (1993) 4 Cal.4th 1233 (Cummings),
abrogated on other grounds in People v. Merritt (2017) 2 Cal.5th 819, the court found no
misconduct in the prosecutor saying, “ ‘I believe,’ ” “ ‘I think,’ ” and “ ‘I am willing to
bet’ ” during argument. (Cummings, at p. 1303, fn. 48.) Although the defendant
contended these comments reflected “the prosecutor’s personal opinion about
Cummings’s guilt and vouched for witness testimony,” the court disagreed, finding the
20
comments reflected instead “legitimate inferences that could be drawn from” the
evidence. (Ibid.) And likewise in People v. Roberts (1992) 2 Cal.4th 271 (Roberts), the
court found no misconduct in a prosecutor’s occasional use of “such phrases as ‘I know.’
” (Id. at p. 310.) Because “the record reveals that every fact to which the prosecutor
alluded was supported by some evidence introduced at trial,” the court found the
prosecutor “did not, in our view, hint that he had access to facts damaging to defendant
that were not before the jury.” (Ibid.; see also People v. Frye (1998) 18 Cal.4th 894, 971
[“so long as a prosecutor’s assurances regarding the apparent honesty or reliability of
prosecution witnesses are based on the ‘facts of [the] record and the inferences
reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her
comments cannot be characterized as improper vouching”], disapproved on other grounds
in People v. Doolin (2009) 45 Cal.4th 390.)
The prosecutor’s comments here likewise did not rise to the level of misconduct.
The prosecutor never hinted “he had access to facts damaging to defendant that were not
before the jury.” (Roberts, supra, 2 Cal.4th at p. 310.) Nor did he compare the “case
negatively to others the prosecutor kn[ew] about or has tried.” (Huggins, supra, 38
Cal.4th at p. 207.) He instead “ask[ed] the jury to believe the prosecution’s version of
events as drawn from the evidence.” (Ibid.) And although he said, “I know” in reference
to the facts of the case, “the record reveals that every fact to which the prosecutor alluded
was supported by some evidence introduced at trial.” (Roberts, at p. 310.) The
prosecutor said, “ ‘I know’ ” Diez had one of the guns that was provided for the robbery,
and according to the evidence, investigators found on Diez’s phone a photograph of a
357-caliber revolver that matched one of the guns used in the robbery and a text message
in which Diez offered to sell a “357 magnum.” Consistent with Roberts, Huggins, and
Cummings, we find this record insufficient to make out a claim of prosecutorial
misconduct.
21
C. The Prosecutor’s Questioning an Officer During Closing Argument
Finally, we consider the prosecutor’s asking an officer if he had “any question in
[his] mind that [he] had arrested an innocent man” when he apprehended Chavez—the
defendant who officers found hiding in a dumpster. Diez’s trial counsel promptly
objected to the question, and the court sustained the objection before the officer offered
any response. Diez and Chavez now contend the mere asking of this question constitutes
reversible error. They reason the prosecutor wrongly sought to have the testifying officer
vouch for the strength of the prosecution’s case. Perhaps, but the officer never vouched
for anything. Diez objected and the officer never answered the question. Although Diez
and Chavez nonetheless contend they suffered prejudice, in support of the claim, they do
nothing more than reference the general standard for finding prejudice. We find,
however, no conceivable prejudice ensued from the question alone. (People v. Dykes
(2009) 46 Cal.4th 731, 763 [“[n]o conceivable prejudice ensued” when a prosecutor
asked a defendant whether he “had discussed his testimony with his attorney prior to
testifying,” an objection was sustained, and the defendant never answered].) That is
particularly true in light of the court’s instructions to the jury. The court specifically
instructed the jury that “[n]othing that the attorneys say is evidence” and that it “must
ignore” questions for which the court sustained an objection. (CALCRIM Nos. 104,
222.) “We presume the jury followed the trial court’s instructions.” (People v. Adams
(2014) 60 Cal.4th 541, 578.)
IV
Admission of the Photograph of Diez, Chavez, and Barajas
Diez and Chavez next claim the trial court erred in admitting—over Diez’s
section 352 objection—a photograph in which Diez is pointing up. The photograph
shows Diez together with Chavez, Barajas, and a fourth person. The prosecution offered
it in evidence to show Diez, Chavez, and Barajas associated with one another before the
robbery. But according to Diez and Chavez, the court abused its discretion in admitting
22
the photograph. In their view, the photograph had marginal probative value but was
highly prejudicial because the jury might have construed Diez’s pointing gesture as a
gang sign. We find no abuse of discretion in the court’s admission of this photograph.
Again, evidence may be excluded under section 352 if its probative value is
substantially outweighed by the probability that its admission would, among other things,
create “substantial danger of undue prejudice.” We will not set aside a trial court’s
decision to admit or exclude evidence under section 352 if “there exists ‘a reasonable or
even fairly debatable justification, under the law, for the action taken.’ ” (Gonzales,
supra, 20 Cal.3d at p. 507.)
Reviewing the evidence here, we find the trial court did not abuse its discretion in
concluding the photograph had probative value. Diez’s counsel appeared to acknowledge
as much at trial. As he noted, the prosecution “probably” sought to admit the photograph
“to show they have some sort of association before” the robbery. The prosecution then
confirmed this intent, noting the photograph was meant to show “the association between
the three” defendants. Although Diez and Chavez now attempt to diminish the
evidence’s probative value, we find none of their arguments persuasive. First, they
suggest the photograph had limited probative value in evidencing the defendants’ prior
association because defense counsel “did not contest this issue” at trial. But in support,
they only cite defense counsel’s statement to the court that “[w]e might even stipulate that
there’s an association between the parties before the incident.” Defense counsel,
however, never appears to have in fact offered to stipulate to the defendants’ prior
association. Second, Diez and Chavez contend it was enough that “all three were
captured by the police after the SUV was detained.” But as the Attorney General notes,
evidence of their prior association was still relevant to the prosecution’s theory that the
three defendants were close and planned the robbery as a group. (See People v. Montes
(2014) 58 Cal.4th 809, 858-859 [gang evidence showing codefendants’ prior affiliation
found relevant to show codefendants’ “relationship with each other” at the time of the
23
crime and to show “that defendant and the codefendants were part of the group” that
committed the crime].) Third, Diez and Chavez note that Diez and Barajas shared the
same grandmother, which would suffice to show the defendants’ close relationship. But
that Diez and Barajas shared the same grandmother does not necessarily show a close
personal relationship between the two, and it says nothing of their relationship with
Chavez.
We also find the trial court did not abuse its discretion in finding Diez and Chavez
fell short of showing the photograph prejudicial. At trial, Diez’s counsel argued that
Diez’s gesture “could be easily construed by the jury to be some sort of gang hand sign.”
The prosecutor and the court accepted that jurors could perhaps “speculate” along those
lines, but neither found Diez’s counsel’s contention reasonable. The prosecution
maintained it only looked like Diez was “pointing his finger.” And the court agreed,
stating that “it does appear the only hand sign being shown looks like it’s nothing more
than an index finger being pointed up. So it doesn’t have what one might typically see
that’s a gang sign.” Although Diez and Chavez maintain the court abused its discretion
in this regard, they offer nothing more than speculation that the jury might have believed
Diez’s pointing was a gang sign. That is not enough. For evidence to be excluded under
section 352, the “probability” of a “substantial danger” of prejudice must “substantially”
outweigh the probative value. (§ 352; People v. Holford (2012) 203 Cal.App.4th 155,
167.) Accepting their conclusory argument would threaten to bar the admission of any
photograph of a person making a gesture, no matter how common or innocuous the
gesture may be. We decline to do so. Although we accept some gestures certainly might
warrant concern, Diez’s and Chavez’s mere speculation that a jury might confuse a
pointing gesture with a gang sign, without any explanation, cannot support reversal here.
(See Gonzales, supra, 20 Cal.3d at p. 507 [trial court action reviewed under the abuse of
discretion standard will not be set aside if there exists a “ ‘fairly debatable
justification’ ”].)
24
V
Cumulative Error
Diez and Chavez also contend we should reverse based on the doctrine of
cumulative error—a doctrine applicable when a series of trial errors rises to the level of
prejudicial error, even though each individual error, considered alone, is harmless.
(People v. Hill (1998) 17 Cal.4th 800, 844.) But because we find no individual error—
apart from the slight miscalculation of custody credits, discussed below—we also find no
cumulative error.
VI
Sufficiency of the Evidence to Show Chavez Personally Used a Firearm
Chavez next contends the evidence was insufficient to show he was one of the
armed men who robbed Susan B. and Greg S. According to Chavez, it was “equally
likely” that he was only the driver of the car and not one of the two robbers. We find the
evidence sufficient to support the conviction.
To determine if sufficient evidence supports a jury’s finding, we must “ ‘ “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.]’ ” (People v. Lee (2011) 51 Cal.4th 620, 632.) Our job is
not to evaluate witness credibility, “ ‘for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends.’ [Citation.]” (Ibid.) Nor is it our job to reweigh the
evidence. We instead must resolve all conflicts in the evidence in favor of the
judgment’s findings, so long as these findings are based on substantial evidence and not
speculation, supposition, or conjecture. (Ibid.; People v. Davis (2013) 57 Cal.4th 353,
360.)
25
Viewing the evidence under this deferential standard, we find the evidence
sufficient to support the jury’s finding.
First, the jury had sufficient evidence to find that Chavez participated in the
robbery. Chavez does not contend otherwise—though in his telling, he was present as the
driver, not one of the armed robbers. Susan B. and Greg S. reported being robbed around
7:00 p.m. by two men with guns who fled in an SUV, and minutes later, officers located
an SUV that matched the description Susan B. provided. After the officers followed,
three men fled the SUV on foot. The officers apprehended two of the fleeing men
immediately—Diez and Barajas—and after a brief search, they found Chavez hiding in a
nearby dumpster. The officers also found, in the SUV and on Barajas, several of Susan
B.’s possessions. Shortly after, Susan B. arrived on scene and told an officer that Chavez
looked “familiar” from the robbery. Taken together, this evidence was enough for the
jury to find that Chavez participated in the robbery.
The jury also had sufficient evidence to find that Chavez was one of the armed
robbers and not, as Chavez now suggests, the getaway driver. To begin, a sign on the
driver’s side door—which included Diez’s cell phone number—tended to show that Diez
controlled the car and thus Diez, not Chavez, was the driver. Susan B.’s statements to
officers at the time supported this conclusion. Susan B. saw the two robbers but only
“vaguely” saw the driver. Consistent with Diez being the driver, Susan B. told an officer
that Diez was “not familiar.” And consistent with Chavez being one of the robbers,
Susan B. told an officer that Chavez, in contrast, was “familiar.” Although she was “not
certain,” she believed Chavez looked “familiar” from the robbery—having “the right
height, shape, so forth.” Considering this evidence together, we find the jury had
sufficient evidence to conclude that Chavez was one of the armed robbers. (See People
v. Sullivan (2007) 151 Cal.App.4th 524, 564 [substantial evidence supported robbery
conviction “[d]espite the failure of the victim to positively identify defendant at trial or in
a pretrial photo lineup”].)
26
VII
Presentence Custody Credits
Chavez next contends he is entitled to two additional days of custody credits. The
Attorney General acknowledges the miscalculation and notes Diez is entitled to similar
relief. We agree.
Defendants are entitled to custody credits for all days spent in custody. (Pen.
Code, § 2900.5, subd. (a).) “Calculation of custody credit begins on the day of arrest and
continues through the day of sentencing.” (People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48.)
Chavez was arrested on November 27, 2011 and, according to the probation
report, initially released on December 2, 2011—entitling him to six days of custody
credit for this period. He then returned to custody on April 23, 2015 and remained in
custody until being sentenced on July 31, 2015—entitling him to an additional 100 days
of credit, for a total of 106 days custody credit. But Chavez was mistakenly only
awarded 104 days of credit, two days short.
Diez, in turn, was arrested on November 27, 2011 and, according to the probation
report, initially released on December 13, 2011—entitling him to 17 days of custody
credit for this period. He then returned to custody on August 15, 2014 and remained in
custody until being sentenced on July 31, 2015—entitling him to an additional 351 days
of credit, for a total of 368 days custody credit. But Diez was mistakenly only awarded
366 days of credit, also two days short.
To correct these errors, we will direct the trial court to modify the judgments to
provide that both Diez and Chavez are each entitled to two additional days of actual
credit.
27
VIII
Firearm Enhancements
Finally, in a supplemental brief, Chavez contends we should remand to allow the
trial court to exercise its newly granted discretion under Penal Code section 12022.53 to
strike firearm enhancements. The Attorney General agrees. So do we.
The California Legislature amended Penal Code section 12022.53, subdivision (h),
effective January 1, 2018, to give the trial court discretion to strike, in the interest of
justice, a firearm enhancement imposed under that statute. (See Sen. Bill No. 620 (2017-
2018 Reg. Sess.), Stats. 2017, ch. 682; People v. Billingsley (2018) 22 Cal.App.5th 1076,
1079-1080.)
Although this amendment became effective well after Chavez’s conviction, we
agree, as Chavez contends, that it applies retroactively to Chavez and other defendants
whose sentences are not yet final. This conclusion follows from the general rule that
“when a statute mitigating punishment becomes effective after the commission of the
prohibited act but before final judgment the lesser punishment provided by the new law
should be imposed in the absence of an express statement to the contrary by the
Legislature.” (People v. Francis (1969) 71 Cal.2d 66, 75-76.) Applying this principle
here, we find that because Penal Code section 12022.53, subdivision (h) is a “statute
mitigating punishment”—and because the Legislature has not prohibited its application to
defendants whose sentences are not yet final—it applies retroactively to benefit Chavez.
(See People v. Flores (2020) 9 Cal.5th 371, 431; People v. Woods (2018) 19 Cal.App.5th
1080, 1089-1090; People v. Billingsley, supra, 22 Cal.App.5th at p. 1080.) We thus
remand to allow the trial court to exercise its newly granted discretion under Penal Code
section 12022.53 to strike firearm enhancements.
28
DISPOSITION
We remand to allow the trial court to consider whether to strike or dismiss
Chavez’s firearm enhancements. We also direct the trial court to prepare amended
abstracts of judgment to correctly reflect Diez’s and Chavez’s custody credits. Diez’s
judgment should list 368 days, rather than 366 days, of actual credit; and Chavez’s
judgment should list 106 days, rather than 104 days, of actual credit. After preparing
amended abstracts of judgment reflecting these changes, the trial court must forward
certified copies to the Department of Corrections and Rehabilitation. In all other
respects, the judgments are affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
MURRAY, J.
/s/
BUTZ, J.
 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
29