People v. Kozee-Stoltz CA4/1 (2016) · DecisionDepot
People v. Kozee-Stoltz CA4/1
California Court of Appeal Mar 17, 2016 No. D069073Unpublished
Filed 3/17/16 P. v. Kozee-Stoltz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069073
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1201090)
JORDAN PAUL KOZEE-STOLTZ et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Riverside County, Albert J.
Wojcik, Judge. Affirmed in part, reversed in part and remanded.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant Jordan
Paul Kozee Stoltz.
Professional Law Corp. and Susan K. Shaler for Defendant and Appellant
Christopher A. Newsome.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randy Einhorn
and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jordan Paul Kozee-Stoltz and Christopher Alexander Newsome
(together defendants) of attempting to murder Brylowe Perez and Trenton Buchanan and
found true the allegations that the attempted murder was willful, deliberate and
"[W]hen a witness disappears before trial, it is always possible to think of
additional steps that the prosecution might have taken to secure the witness'
presence . . . but the Sixth Amendment does not require the prosecution to exhaust every
avenue of inquiry, no matter how unpromising." (Hardy v. Cross (2011) __ U.S. __ [132
S.Ct. 490, 495].) It is speculative to assume that if the prosecution had pursued any other
leads, it would have procured Buchanan's presence at trial. Buchanan failed to appear for
a scheduled court date and there is no guarantee that, even if the prosecution had served
him with a subpoena, he would have appeared for trial given Buchanan's statement that
he did not want to testify. It seems Buchanan "purposely made [him]self unavailable
because [he] was unwilling to testify." (People v. Diaz, supra, 95 Cal.App.4th at p. 706.)
We reject Newsome's suggestion that he had a different interest and motive in
cross-examining Buchanan at the preliminary hearing than at trial and his criticism that
counsel did not explore all credibility issues at the preliminary hearing. The trial court
here could have reasonably concluded that defendants had much the same interest,
motive, and opportunity to cross-examine Buchanan at the preliminary hearing as at trial.
(People v. Valencia (2008) 43 Cal.4th 268, 294 [interest and motive to cross-examine
need not be identical, only " 'similar' "].) That Newsome would have preferred more
cross-examination during the preliminary hearing is not the test of confrontation. (People
v. Carter (2005) 36 Cal.4th 1114, 1173-1174.)
The totality of the circumstances support the conclusion that the prosecution
exercised reasonable diligence to locate Buchanan; accordingly, the trial court did not err
in allowing Buchanan's preliminary hearing testimony to be read to the jury.
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II. Accomplice Corroboration
A. Background
Carter testified that he was currently in custody for attempted murder arising from
the incident and he had an agreement to testify truthfully in exchange for a sentence of 18
years in prison. Carter claimed that he had intended to sell Buchanan $2,000 worth of
cocaine that had been cut with baking soda. Via text message, Carter and Stoltz agreed to
a plan for Buchanan. Carter had Stoltz bring a gun for himself and a .25 caliber handgun
for Carter. Stoltz picked Carter up in a Charger. Newsome was in the front passenger
seat and Carter sat in the backseat. Carter had the .25 caliber gun in his pocket.
Newsome had a .380 caliber gun and Stoltz had a .45 caliber gun.
Buchanan got into the Charger and claimed he did not have any money. The three
men then pulled out their guns and pointed them at Buchanan's head. Buchanan told
Carter the money was in his car. Carter and Stoltz took Buchanan's wallet and watch,
and Carter ordered Buchanan out of the car. Buchanan ran to the Impala and the car took
off. Carter, Stoltz, and Newsome gave chase in the Charger. Carter and Stoltz fired
their guns at the Impala. Newsome tried to fire his gun but it had jammed and he
could not clear the jam. After police pulled over the Impala, Stoltz turned into a
residential neighborhood. Newsome and Stoltz handed Carter their guns and Carter
put all three guns in his jacket and put the jacket with the guns in a bush.
10
B. Analysis
Defendants contend their attempted murder convictions must be reversed because
these convictions were based upon Carter's uncorroborated accomplice testimony that
defendants fired a gun or attempted to fire a gun at Perez and Buchanan. We disagree.
A conviction cannot be based only on accomplice testimony. (Pen. Code, § 1111;
undesignated statutory references are to the Penal Code.) There must be sufficient
corroborating evidence that "shall tend to connect the defendant with the commission of
the offense; and the corroboration is not sufficient if it merely shows the commission of
the offense or the circumstances thereof." (Ibid.) The requisite corroboration "must,
without aid from the accomplice's testimony, connect the defendant to the charged
offense, but may be circumstantial, slight and entitled to little consideration when
standing alone. [Citations.] Corroborating evidence need not be sufficient to establish
the defendant's guilt or corroborate the accomplice to every fact to which the accomplice
testified. [Citations.] It must raise more than a suspicion or conjecture of guilt, and is
sufficient if it connects the defendant with the crime in such a way as to reasonably
satisfy the trier of fact as to the truthfulness of the accomplice." (People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1177-1178.) Unless we determine "that the corroborating
evidence should not have been admitted or that it could not reasonably tend to connect a
defendant with the commission of a crime, the finding of the trier of fact on the issue of
corroboration may not be disturbed on appeal." (People v. Falconer (1988) 201
Cal.App.3d 1540, 1543.)
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Carter testified that Stoltz fired a .45 caliber gun at the victims and Newsome
attempted to fire a .380 caliber gun at the victims, but the gun had jammed. Carter
further testified that Stoltz and Newsome handed him their guns after the shooting and
Carter wrapped these guns along with the .25 caliber gun he had used in his jacket and
put them underneath a bush in the area near the shooting. Applying the above principles,
we find the following evidence sufficient to corroborate Carter's accomplice testimony
regarding defendants' involvement in the attempted murders of Buchanan and Perez.
A deputy testified that he took Buchanan to an infield lineup after the incident and
Buchanan positively identified Stoltz as the driver of the Charger. Another deputy testified
that Stoltz was in the driver's seat of the Charger after the incident. Buchanan testified that
Stoltz and Newsome pointed their guns at his face while they robbed him in the Charger.
A deputy testified that bullet holes in the Charger were consistent with the driver,
Stoltz, sticking his arm out of the window and firing a gun hitting the hood of the Charger
with the bullet then exiting out through the Charger's grill. A bullet hole in the trunk area of
the Impala appeared to be from a .45 caliber gun. After the incident, Carter led deputies to
the bush where he had hidden the guns. The guns, which had been wrapped in a sweater,
were a .45 caliber Taurus, a .25 caliber Sundance, and a .380 caliber gun of an undetermined
brand. The recovered .380 caliber gun had unexpended ammunition in its magazine and a
bullet in its chamber.
Thus, excising Carter's accomplice testimony, we are convinced there was
sufficient independent evidence to connect defendants with the commission of the
attempted murders.
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III. Alleged Instructional Error
A. Gang Related Instructions
1. Background
Defendants were charged with street terrorism and it was alleged that they
committed the other crimes to benefit a criminal street gang. At trial, a gang expert
testified that in 2006, Yarborough Park Crips gang members Alazado Tuaolo and
Nicholas Shipman pleaded guilty to, respectively, grossly negligent discharge of a
firearm and residential burglary and both admitted committing the crimes to benefit a
gang.
The trial court instructed the jury as to the elements of the gang enhancement and
the substantive street terrorism charge. The instructions defined a "pattern of criminal
gang activity" for the jury as the commission of "two or more" of the following crimes.
The instructions listed "burglary" and "grossly negligent discharge of a firearm and admit
crime was committed for the benefit of a criminal street gang" as the crimes that could
constitute a pattern of criminal gang activity.
2. Analysis
Defendants contend the trial court erroneously included grossly negligent
discharge of a firearm as a pattern offense. The People concede the trial court
erroneously included this crime as a pattern offense, but assert the error was harmless
because the current offenses qualified as pattern offenses. The People contend the
evidence and resulting convictions showed defendants committed two pattern offenses as
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enumerated in section 186.22, subdivision (e), namely, robbery and discharging a weapon
at a motor vehicle. We disagree that the error was harmless.
"When one of the theories presented to a jury is legally inadequate, such as a
theory which ' "fails to come within the statutory definition of the crime" ' [citation], the
jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a
verdict on the basis of the legally invalid theory without realizing that, as a matter of law,
its factual findings are insufficient to constitute the charged crime. In such
circumstances, reversal generally is required unless 'it is possible to determine from other
portions of the verdict that the jury necessarily found the defendant guilty on a proper
theory.' " (People v. Perez (2005) 35 Cal.4th 1219, 1233; see also Griffin v. United States
(1991) 502 U.S. 46, 59; People v. Guiton (1993) 4 Cal.4th 1116, 1128.)
The jury convicted defendants of robbery and discharging a weapon at a motor
vehicle, two crimes enumerated in section 186.22, subdivision (e) as pattern offenses.
The jury instructions, however, directed the jury that a "pattern of criminal gang activity"
meant the commission of "two or more of the following crimes," either "burglary" or
"grossly negligent discharge of a firearm and admit crime was committed for the benefit
of a criminal street gang." The court never instructed the jury that it could consider
robbery or discharging a weapon at a motor vehicle as pattern offenses.
Thus, the jury instructions for the gang enhancements and street terrorism charge
in this case permitted the jury to convict defendants of street terrorism and find true the
gang enhancements on an improper legal theory. Reversal is required because there is
nothing in the record to establish that the jury necessarily rejected the improper legal
14
theory and instead convicted defendants on a proper theory. Accordingly, the street
terrorism convictions in count 5 and the true findings on the gang enhancements
connected to counts 1, 2, 3 and 4 must be reversed and the matter remanded for
resentencing.
B. Unanimity Instruction
1. Background
Stoltz took Buchanan's wallet and Carter took Buchanan's wristwatch and a few
dollars. Inside the wallet, Buchanan had about $60 to $80, his social security card, a gift
card from McDonald's and other items. During a subsequent search of the backseat of
the Charger, police found Buchanan's empty wallet and the McDonald's gift card.
2. Analysis
Defendants contend that based on varying testimony as to what was taken from
Buchanan while he was in the Charger, either the prosecutor should have made an
election or the trial court erred in failing to give the jury a unanimity instruction with
regard to the robbery charge. We disagree.
A defendant's constitutional right to a unanimous jury verdict requires that when
the evidence shows more than one unlawful act that could support a single charged
offense, the prosecution must either elect which act it is relying upon, or the trial court
must instruct the jurors sua sponte that they must unanimously agree which act
constituted the crime. (People v. Jennings (2010) 50 Cal.4th 616, 679.) A unanimity
instruction is not required, however " 'when the acts are so closely connected as to form
part of one transaction.' " (Ibid.) " 'We review de novo a claim that the trial court failed
15
to properly instruct the jury on the applicable principles of law.' " (People v. Lueth
(2012) 206 Cal.App.4th 189, 195.)
Here, although the evidence shows Stoltz took Buchanan's wallet, which contained
multiple items, while Carter took Buchanan's wristwatch, the evidence described one
continuous course of conduct that lasted only a few minutes. Thus, no unanimity
instruction was required. (People v. Curry (2007) 158 Cal.App.4th 766, 782 [where
defendant took victim's shoes and phone almost simultaneously during an assault, the
takings formed a single incident of robbery]; People v. Haynes (1998) 61 Cal.App.4th
1282, 1296 [robbery in which defendant stole some of victim's cash, then drove to
another location and stole more money; no unanimity instruction required].)
C. Attempted Murder Instruction
The jury found Newsome guilty of attempting to murder Buchanan and Perez.
The court instructed the jury it could find Newsome guilty as an aider and abettor under
the natural and probable consequences doctrine. Newsome contends the instructions
were deficient under People v. Chiu (2014) 59 Cal.4th 155 (Chiu), which held an aider
and abettor may not be convicted of first degree premeditated murder under the natural
and probable consequences doctrine. (Id. at p. 166.) Newsome asserts Chiu is equally
applicable to attempted first degree murder, otherwise a defendant can serve a life
sentence without a jury finding either a personal intent to kill or premeditation. Because
the verdict does not reflect under what theory or theories the jury found true beyond a
reasonable doubt, Newsome contends his attempted murder conviction must be reversed.
Newsome acknowledges People v. Favor (2012) 54 Cal.4th 868 (Favor) undercuts his
16
argument, but asserts Favor presented a different question and Chiu cannot be read as an
endorsement of Favor. We reject Newsome's argument. To the extent Stoltz joins in this
argument, our discussion is equally applicable to him.
In Favor, our high court held that an aider and abettor may be found to have
committed an attempted murder with premeditation and deliberation on the basis of the
natural and probable consequences doctrine. (Favor, supra, 54 Cal.4th at p. 872.) In
Chiu, our high court acknowledged this holding when considering the question of how to
instruct the jury on aider and abettor liability for first degree premeditated murder under
the natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at p. 162.)
Chiu held that an aider and abettor may not be convicted of first degree premeditated
murder under the natural and probable consequences doctrine, but may be convicted of
first degree premeditated murder based on direct aiding and abetting principles. (Id. at
pp. 158-159.) Our high court limited its ruling in Chiu to first degree premeditated
murder (Ibid.; id. at pp. 166-167), and contrasted this holding with its ruling in Favor, in
which it held that an aider and abettor may be found to have committed an attempted
murder with premeditation and deliberation on the basis of the natural and probable
consequences doctrine (Favor, at p. 872; Chiu, at pp. 162-163). Because Newsome's
convictions were for attempted murder with premeditation, under principles of stare
decisis we are bound to follow Favor. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)
D. Willfulness Allegation
17
The jury found Newsome guilty of two counts of attempted murder and found true
the allegations that he committed the attempted murders willfully, deliberately, and with
premeditation within the meaning of section 664, subdivision (a) (the willfulness
allegation). Newsome notes that the aiding and abetting instructions for the attempted
murder charges omitted any requirement that the jury find the willfulness allegations to
be the natural and probable consequence of aiding and abetting an attempted murder.
Newsome concedes that the jury instructions conformed with the decision in Favor,
supra, 54 Cal.4th 868, but asserts they were nonetheless erroneous under federal law,
asserting the reasoning of Favor was implicitly rejected in Alleyne v. United States
(2013) ____U.S. _____ [133 S.Ct. 2151] (Alleyne). He claims the jury instructions
resulted in the jury finding true the willfulness allegations without finding true beyond a
reasonable doubt all the facts required for such a finding as required by Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi). Accordingly, he asserts the true finding on the
willfulness allegations must be reversed. We reject Newsome's argument. To the extent
Stoltz joins in this argument, our discussion is equally applicable to him.
Under the jury instructions, which defendants concede conformed to Favor, the
trial court instructed the jury on the crime of attempted murder and on the natural and
probable consequences doctrine; namely, to find defendants guilty of attempted murder,
the jurors must find, among other things, that defendants aided and abetted the robbery
and that attempted murder was a natural and probable consequences of the robbery. If
the jurors found defendants guilty of attempted murder, they were then required to
determine whether the attempted murder was willful, deliberate and premeditated.
18
Defendants complain that the instructions omitted any requirement that the jury find the
willfulness allegations to be the natural and probable consequence of aiding and abetting
an attempted murder, noting that a true finding on the willfulness allegations increased
their sentences. Newsome argues he intended to commit a robbery, not attempted
murder, and there was meager evidence he, Carter and Stoltz deliberated or premeditated
when they began shooting or attempting to shoot.
While defendants are correct that a true finding on the willfulness allegations
increased their sentences, there is no support in the law or logic that the jurors were
required to find that a willful, deliberate, and premeditated attempted murder was the
natural and probable consequence of robbery in order to find true the willfulness
allegations. First, defendants were not found guilty of the crime of willful, deliberate,
and premeditated attempted murder as there is no such crime. (Favor, supra, 54 Cal.4th
at pp. 876-877 [attempted murder is not divided into degrees and premeditated attempted
murder is not a separate offense from attempted murder].) Rather, the jury found
defendants guilty of attempted murder and it then found true the separate penalty
provision (§ 664, subd. (a)) that the attempted murders were willful, deliberate and
premeditated. (Favor, at pp. 877, 879-880.)
As the Favor court explained, "under the natural and probable consequences
doctrine, there is no requirement that an aider and abettor reasonably foresee an
attempted premeditated murder as the natural and probable consequence of the target
offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of
19
the crime aided and abetted, and the attempted murder itself was committed willfully,
deliberately and with premeditation." (Favor, supra, 54 Cal.4th at p. 880.)
Alleyne does not overrule Favor. In Alleyne, the United States Supreme Court
explained that first degree murder would necessarily constitute a separate offense from
second degree murder: "When a finding of fact alters the legally prescribed punishment
so as to aggravate it, the fact necessarily forms a constituent part of a new offense and
must be submitted to the jury." (Alleyne, supra,___ U.S. ___ [133 S.Ct. 2151, 2162],
italics added.) This holding is based on Apprendi, supra, U.S. 466, in which the court
held that any fact which increases the maximum penalty for a crime is an element of the
offense that must be found true by a jury beyond a reasonable doubt. (Alleyene, at p. ___
[133 S.Ct. at pp. 2155-2158].) As we explained above, willful, deliberate, and
premeditated attempted murder is not a crime and the jurors were properly instructed as
to the crime of attempted murder and the separate willfulness allegations. Accordingly,
we reject defendants argument that the jurors were required to find that the willfulness
allegation was a natural and probable consequence of aiding and abetting an attempted
murder.
E. Credibility Instruction
1. Background
CALJIC No. 2.20 instructed the jury that "[i]n determining the believability of a
witness you may consider anything that has a tendency reasonably to prove or disprove the
truthfulness of the testimony of the witness," including whether a witness is testifying under
a grant of immunity. The instruction also told the jury that it was not limited to the factors
20
listed in the instruction to determine witness credibility. Newsome requested the trial court
modify CALJIC No. 2.20 to include a reference to Carter's plea agreement. The trial
court denied the request and instructed Newsome's counsel that he could argue the effects
of Carter's plea agreement.
2. Analysis
Defendants assert the trial court erred in refusing to instruct the jury it could
consider Carter's plea bargain in assessing Carter's credibility. They contend the court's
refusal to instruct on Carter's plea bargain forced trial counsel to argue Carter was
discredited without the benefit of a correct instruction authorizing jurors to do so.
Defendants assert they were entitled upon request to an instruction pinpointing the theory
of the defense, namely, that Carter should not be believed. They argue that the failure to
inform jurors they could and should consider Carter's plea bargain in determining his
credibility deprived them of their federal constitutional rights, and therefore the
judgments of guilt must be reversed because the error was not harmless beyond a
reasonable doubt. The trial court did not err in refusing the requested modification.
A defendant is entitled to an instruction which pinpoints a defense theory. (People
v. Wharton (1991) 53 Cal.3d 522, 570.) Such an instruction is one which "pinpoints the
evidence in the case in the light of defendant's theory of defense and instructs the jury
that the People bear the burden of ultimate persuasion on the issue which the instruction
pinpoints." (People v. Brady (1987) 190 Cal.App.3d 124, 135.) A court is not required
to give a pinpoint instruction that is argumentative, duplicative, or not supported by the
evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558-559.) A trial court can also
21
refuse instructions that highlight specific evidence because such an instruction " 'invite[s]
the jury to draw inferences favorable to one of the parties from specified items of
evidence,' it is considered 'argumentative' and therefore should not be given." (People v.
Earp (1999) 20 Cal.4th 826, 886.)
Proper instructions do not pinpoint specific evidence, but rather the theory of the
defendant's case. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) "[I]nstructions that
attempt to relate particular facts to a legal issue are generally objectionable as
argumentative [citation], and the effect of certain facts on identified theories 'is best left
to argument by counsel, cross-examination of the witnesses, and expert testimony where
appropriate.' " (People v. Wharton, supra, 53 Cal.3d at p. 570.) We review de novo the
trial court's refusal to give a requested pinpoint instruction. (People v. Johnson (2009)
180 Cal.App.4th 702, 707.) In doing so, we consider the instructions as a whole and
assume that the jurors are intelligent persons who are capable of understanding and
correlating all jury instructions. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
Here, the request to instruct on Carter's plea bargain highlighted specific evidence
(Carter's plea bargain) and invited the jury to draw the inference that Carter was not a
credible witness based on this specific evidence. The trial court properly rejected the
proposed pinpoint modification as argumentative. The requested instruction was also
duplicative of CALJIC No. 2.20 which instructed the jury it could consider "anything"
tending to prove or disprove the truthfulness of a witness. (People v. Clark (2011) 52
Cal.4th 856, 975 ["The court properly may refuse a proposed instruction . . . when the
point is covered in another instruction."].)
22
Even assuming defendants were entitled to the instruction, any error in not giving
it was harmless. In evaluating the impact of the trial court's refusal to give a pinpoint
instruction, we consider " 'the entire cause, including the evidence,' " defense counsel's
focus in closing argument on the evidence supporting the defense theory, and whether
any given instructions would have precluded the jury "from giving that evidence its due
weight." (People v. Wharton, supra, 53 Cal.3d at pp. 571-572.) We review the
erroneous failure to give a pinpoint instruction for prejudice under the Watson harmless
error standard. (Id. at p. 571; People v. Watson (1956) 46 Cal.2d 818, 836.)
First, the absence of a specific reference to the plea bargain in CALJIC No. 2.20
did not preclude consideration of that factor as the instruction expressly permitted the
jury to consider anything in evaluating the truthfulness of a witness, including but not
limited to the factors listed. Additionally, the trial court thoroughly instructed the jury on
the requirement of corroboration for accomplice testimony and to view such testimony
with caution. (CALJIC Nos. 3.11, 3.12, 3.18.) Moreover, trial counsel for both
defendants cross-examined Carter about the plea bargain. Both counsel also argued to
the jury that the plea bargain Carter had with the prosecution was incentive for Carter to
lie and provided a reason to question Carter's credibility.
In summary, the jury instructions, taken as a whole, and considered in conjunction
with counsel's argument to the jury, adequately informed the jury of its responsibility to
consider all relevant factors in assessing witness believability. Thus, even assuming the
trial court erred, the error was harmless.
23
IV. Alleged Sentencing Error
A. Background
The jury convicted defendants of two counts each of second degree robbery of
Buchanan and attempting to murder Buchanan and Perez and found true the attached
willfulness allegations to the attempted murder charges. The trial court sentenced Stoltz
to a consecutive term of 13 years for the robbery, consisting of the middle term of three
years, plus 10 years for the associated gang enhancement. Citing the probation officer's
report, the trial court declined to stay the robbery sentence under section 654, but stayed
the sentences for shooting at an occupied vehicle and street terrorism.
The trial court sentenced Newsome to a consecutive term of 20 years for the
robbery, consisting of the upper term of five years, doubled under the "Three Strikes"
law, plus 10 years for the associated gang enhancement. The trial court imposed sentence
on the robbery charge without mentioning section 654. Citing section 654, the court
stayed Newsome's sentences for shooting at an occupied vehicle and street terrorism.
B. Robbery Sentence
Defendants contend the trial court erred in not staying the sentence for the robbery
and the gang enhancement attached to that crime under section 654 because they had a
singular objective that evening, i.e., to relieve Buchanan of his $2,000—either by fraud or
by force. They contend the attempted murder and robbery charges all arose from a single
physical act, the shooting spree relating to the foiled robbery; thus, section 654 applies to
bar separate punishment for the robbery. We disagree.
24
Section 654 prohibits punishment for two crimes arising from an indivisible
course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) If, however, the
defendant had multiple or simultaneous objectives, independent of and not merely
incidental to each other, the defendant may be punished for each violation committed in
pursuit of each objective even though the violations share common acts or were parts of
an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639
& fn. 11; People v. Felix (2001) 92 Cal.App.4th 905, 915 ["multiple crimes are not one
transaction where the defendant had a chance to reflect between offenses and each
offense created a new risk of harm"].) "Because of the many differing circumstances
wherein criminal conduct involving multiple violations may be deemed to arise out of an
'act or omission,' there can be no universal construction which directs the proper
application of section 654 in every instance." (People v. Beamon, at pp. 636-637.)
Accordingly, whether a course of criminal conduct is divisible presents a factual issue for
the trial court, and we will uphold its ruling if supported by substantial evidence. (People
v. Coleman (1989) 48 Cal.3d 112, 162.) If the court makes no express section 654
finding, a finding that the crimes were divisible and thus subject to multiple punishments
is implicit in the judgment and must be upheld if supported by substantial evidence.
(People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
Here, defendants' act of taking Buchanan's personal property at gunpoint while
Buchanan sat in the Charger completed the robbery as defendants could have simply
escaped with the loot. Instead, when Buchanan then ran away and escaped in the Impala
with Perez, defendants gave chase in the Charger, firing or attempting to fire their
25
weapons. This completed attempted murder as to Buchanan. Defendants contend they
committed their actions after the robbery in the Charger to further the robbery (i.e., obtain
the $2,000 purportedly in the Impala). Nonetheless, defendants' actions, while directed to
one objective, involved a course of conduct divisible in time that could give rise to
multiple violations and punishment. (People v. Beamon, supra, 8 Cal.3d at p. 639 & fn.
11.) Accordingly, section 654 does not apply. (In re Jesse F. (1982) 137 Cal.App.3d
164, 171 [assault separately punishable when committed "after the fruits of the robbery
have been obtained"].)
Additionally, the trial court could have concluded defendants had a simultaneous
objective that was independent of and not merely incidental to the robbery. Namely,
Carter testified that defendants chased after the Impala because Buchanan tried to rob
them, this was disrespectful and the men decided to handle it with guns. Carter asked
Stoltz for permission to fire his gun because Stoltz was higher in the gang hierarchy.
Carter stated that other gang members would not be expected to "back [him] up" in a
one-on-one situation, but back-up would be expected in a group activity. Carter
claimed, however, that because Stoltz and Newsome were older, they faced no
consequences if they decided to not get involved. Thus, substantial evidence supported
the court's finding that section 654 did not preclude execution of the consecutive
sentences for defendants' attempted murder and robbery convictions.
C. Consecutive Sentences
Defendants contend we should remand this matter to the trial court to permit it to
state its reasons for imposing consecutive sentences as to the attempted murder and
26
robbery charges. Stoltz asserts the trial court should have stated reasons as to why it was
imposing consecutive as opposed to concurrent sentences on the respective counts
because he had no prior criminal record, was out of custody on bond during trial and had
committed no new violations. The People assert defendants forfeited this contention by
failing to object below. Assuming defendants did not forfeit this contention, the People
contend the record supported the court's discretionary sentencing choice.
A trial court has discretion to determine whether several sentences are to run
concurrently or consecutively. (§ 669; People v. Shaw (2004) 122 Cal.App.4th 453,
458.) A sentencing court is required to provide a statement of reasons when imposing
consecutive sentences. (Cal. Rules of Court, rule 4.406(a), (b)(5).) A defendant's claim
that the trial court stated inadequate or erroneous reasons for imposing consecutive
sentences is forfeited on appeal unless the defendant timely and specifically objected
below on the ground sought to be raised on appeal. (People v. Boyce (2014) 59 Cal.4th
672, 730-731.)
Here, although defendants raised no objection below, they contend forfeiture does
not apply because they were not given a meaningful opportunity to object as the trial
court did not provide an intended ruling, but simply pronounced the sentences. We
disagree.
A trial court is not obligated to provide advance notice of its intended sentence.
(People v. Gonzalez (2003) 31 Cal.4th 745, 754-755.) "[T]he parties need only be
advised of the trial court's intended sentence 'during the course of the sentencing hearing
itself . . . .' " (Id. at p. 752.) "In the rare instance where the actual sentence is
27
unexpected, unusual, or particularly complex, the parties can ask the trial court for a brief
continuance to research whether an objection is warranted, or for permission to submit
written objections within a specified number of days after the sentencing hearing." (Id. at
p. 754.)
Here, before the trial court pronounced its sentences it noted that it had read the
probation reports and also the letters submitted regarding Newsome's character. The
court heard argument from counsel and then pronounced its respective sentences. After
apprising defendants of their sentences, the trial judge asked each counsel whether he had
"anything further." Both counsel responded that they had nothing further. The invitation
for further input from the parties afforded defendants a meaningful opportunity to assert
the objection they now attempt to raise on appeal. (People v. Boyce, supra, 59 Cal.4th at
p. 731.) Their failure to act resulted in a forfeiture of the claim. (Ibid.)
Even if defendants had not forfeited this claim, we would deny it on the merits.
California Rules of Court, rule 4.425 enumerates "[c]riteria affecting the decision to
impose consecutive rather than concurrent sentences." California Rules of Court, rules
4.421 and 4.423 identify numerous aggravating and mitigating circumstances. A single
valid factor is sufficient to justify a sentencing choice. (People v. Dancer (1996) 45
Cal.App.4th 1677, 1695-1696.)
Here, the probation reports, which the trial court considered, listed three
circumstances in aggravation and two in mitigation as to Stoltz and seven aggravating
and no mitigating circumstances as to Newsome. The trial court read letters about
Stoltz's good character and was aware of Stoltz's age and lack of a criminal record. The
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court also heard Stoltz's articulate statement of remorse for his crimes. The trial court
stated that it considered Stoltz's age and lack of record in deciding the appropriate
sentence, but concluded the gravity of the crimes outweighed these factors. As to
Newsome, the trial court noted the existence of a prior strike, that Newsome was on
probation at the time of the incident and the gravity of the crimes. The record shows the
court was aware it had sentencing discretion and that it exercised its discretion. On
whole, the trial court adequately justified the imposition of consecutive terms and did not
abuse its discretion. No remand for resentencing is required.
V. Mental Health Evaluations
A. Background
When Carter was a co-defendant in this proceeding his counsel expressed a doubt
about Carter's competency. The trial court suspended the criminal proceedings and
ordered a competency evaluation under section 1368. The psychiatrist prepared a written
report and the prosecutor prepared a redacted version of the report to protect Carter's
personal information and attorney-client privilege. Carter was found to have been
malingering and thus competent. The court ordered that the reports be sealed. The trial
court had the prosecutor review the reports and provide to defense counsel all possible
exculpatory evidence within the meaning of Brady v. Maryland (1963) 373 U.S. 83
(Brady).
Stoltz's counsel asked the trial court to unseal Carter's psychiatric reports or
review them, questioning whether it had followed the proper procedures in ordering the
reports sealed. Counsel also asked the trial court to review the redacted and unredacted
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reports and decide whether the prosecutor was correct in finding no Brady material in the
reports. The trial court reviewed the reports and concluded that they contained no
exculpatory evidence. The court also denied a request to unseal the reports.
B. Analysis
Defendants do not challenge the sealing of the reports; rather, they request that we
review the sealed reports and reverse the judgment if the trial court failed to turn over any
documents material to their defense, including but not limited to exculpatory evidence
within the meaning of Brady or other material evidence subject to mandatory disclosure
under section 1054.1. The People argue psychiatric material is generally undiscoverable
prior to trial and we should not independently review the reports because defendants cited
no authority for such a review.
Under Brady, the prosecution violates a defendant's federal due process rights
when it suppresses evidence material to the defendant's guilt or punishment, regardless of
the good faith belief of the prosecution. (Brady, supra, 373 U.S. at p. 87.) Prosecutors
have a duty to disclose "material exculpatory evidence whether the defendant makes a
specific request [citation], a general request, or none at all." (In re Brown (1998) 17
Cal.4th 873, 879.) An appellate court's role is to review the confidential records that
were not disclosed by the trial court "to determine whether they were material and should
have been disclosed." (People v. Martinez (2009) 47 Cal.4th 399, 453.)
On our own motion, we have augmented the record to include copies of the
unredacted and redacted versions of the report. (Cal. Rules of Court, rule 8.340(c).) The
trial court properly sealed these reports and we add them to the record on appeal under
30
seal. We have reviewed the unredacted and redacted versions of the report in camera and
conclude the undisclosed information was not material to defendants' defense and the
trial court did not err in denying disclosure.
DISPOSITION
The street terrorism convictions (count 5) are reversed as to both defendants. The
true findings on the gang enhancements connected to counts 1, 2, 3 and 4 are reversed
and the gang enhancements stricken. In all other respects, the judgments are affirmed.
The matter is remanded for resentencing consistent with this opinion. Thereafter, the trial
court is directed to prepare amended abstracts of judgment and to send certified copies of
the same to the Department of Corrections and Rehabilitation.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred in its jury instructions regarding the street terrorism charge and gang enhancements, necessitating reversal of those specific convictions and enhancements. The court otherwise affirmed the judgments, finding no error in the admission of a witness's prior testimony, the sufficiency of accomplice corroboration, or the jury instructions on robbery and attempted murder.
Issues
Did the trial court err in declaring a witness unavailable and admitting prior testimony?
Was there sufficient independent evidence to corroborate accomplice testimony?
Did the trial court err in its jury instructions regarding street terrorism and gang enhancements?
Did the trial court err in failing to provide a unanimity instruction for the robbery charge?
Disposition. Affirmed in part, reversed in part and remanded.
Quotations verified verbatim against the opinion
“The totality of the circumstances support the conclusion that the prosecution exercised reasonable diligence to locate Buchanan; accordingly, the trial court did not err in allowing Buchanan's preliminary hearing testimony to be read to the jury.”