Johnson and Guthrie do not contend that Ross's testimony concerning their
fraudulent identification was irrelevant, only that it was unfairly prejudicial because it
referenced their immigration status. Specifically, they assert the introduction of their
false identification documents was inflammatory and extremely prejudicial because
"caselaw in California and in other jurisdictions 'have recognized the strong danger of
prejudice attendant with the disclosure of a party's status as an undocumented
immigrant.' " The case Johnson quotes for this proposition, Velasquez v. Centrome, Inc.
(2015) 233 Cal.App.4th 1191, however, supports the opposite outcome he and Guthrie
advance. In Velasquez, the Court of Appeal overturned the defense judgment in a
personal injury lawsuit where the plaintiff's immigration status was disclosed during voir
dire, but was entirely irrelevant to the claims at trial. Unlike Velasquez, here there is no
dispute that the evidence at issue—that the defendants obtained false identification
23
through the same fraudulent channel—was relevant to show Johnson and Guthrie were
part of the conspiracy with Grant to murder Canady.6
The record is clear that the trial court considered the potentially prejudicial effect
of the evidence and limited the presentation of that evidence to minimize its
inflammatory character. Further, the prosecution did not use the defendants' immigration
status to insinuate criminal proclivity or challenge the defendants' credibility. In fact,
federal immigration crimes specifically were raised for the first time by Guthrie's
attorney during her cross-examination of Ross. On redirect, the prosecutor then asked,
"did you learn anything about any citizenship or background that seemed to be consistent
throughout your investigation" into the false identification scheme. Ross replied that all
the individuals that obtained fraudulent identification were not lawful citizens of the
United States and were uniformly from Jamaica.
Ross's testimony was relevant to the crimes at issue, and the trial court did not
abuse its discretion by finding the evidence's probative value was not substantially
outweighed by any potential prejudicial effect.
6 Johnson also argues that the probative value was low because Ross's testimony showed the fraudulent identification scheme involved 300 individuals and Guthrie's and Johnson's false driver licenses were issued two months apart in different counties in Florida. This information goes to the weight of the evidence, and does not diminish its probative value to the point that it is substantially outweighed by prejudicial effect.
24
III
Johnson's Prior Jamaican Conviction
Johnson next alleges the trial court erred by finding his Jamaican murder
conviction qualified as a strike prior and serious felony prior. He asserts that because a
defendant in Jamaica can potentially be convicted of murder by nine members of an 11-
person jury, and not a unanimous 12-person jury, use of the conviction to enhance his
punishment violates his right to equal protection under the law.
A. Relevant Background
The information alleged Johnson's 1998 conviction for murder in Jamaica
constituted a prior strike and prior serious felony. At the initial sentencing hearing,
Johnson admitted he was convicted of murder in Kingston County, Jamaica, but did not
concede the conviction qualified as a strike or a serious felony prior under California law.
The prosecution filed a sentencing brief asserting the elements of murder in Jamaica were
the same as those in California and explaining the legal system was constitutionally
sound. At a subsequent sentencing hearing, the court compared Jamaica's law with
section 187 and concluded the elements were the same. The trial court also stated it had
considered whether Jamaica's "guilt-determining process" was "incompatible with the
fundamental principles reflected by [the] constitution" and had concluded that "Jamaica's
legal system adheres to our fundamental constitutional principles." The court then found
that Johnson's foreign conviction qualified as a serious and violent felony under
California law.
25
The court then invited counsel to argue if the prior conviction should be stricken
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Johnson's attorney
responded that Johnson "is 49 years old" and the "reality of it, it is frankly academic
because given the time that he is facing" even if he were paroled, "he would be extradited
to Jamaica to serve out the remainder of the murder sentence there . . . ." Johnson's
attorney then stated he would rest on the pleadings. The trial court concluded striking the
prior conviction was not appropriate. The court noted that Johnson had a strong affection
for his family, but the nature of the current offense, and the fact he was previously
convicted for murder and escaped from prison in Jamaica made it an inappropriate case to
dismiss the strike.
B. Legal Principles
"For criminal sentencing purposes in this state, the term 'serious felony' is a term
of art. Severe consequences can follow if a criminal offender, presently convicted of a
felony, is found to have suffered a prior conviction for a serious felony." (People v.
Warner (2006) 39 Cal.4th 548, 552.) If the present conviction is also for a serious felony,
"the offender is subject to a five-year enhancement term to be served consecutively to the
regular sentence." (Ibid.) A prior conviction for a serious felony also "renders the
offender subject to the more severe sentencing provisions of the three strikes law."
(Ibid.)
"The Legislature has provided in section 668: 'Every person who has been
convicted in any other state, government, country, or jurisdiction of an offense for which,
if committed within this state, that person could have been punished under the laws of
26
this state by imprisonment in the state prison, is punishable for any subsequent crime
committed within this state in the manner prescribed by law and to the same extent as if
that prior conviction had taken place in a court of this state.' . . . . According to the plain
meaning of this text, a conviction in another jurisdiction may be used if the same 'person'
could have been punished by imprisonment for the same conduct had it been committed
in this state." (People v. Trevino (2001) 26 Cal.4th 237, 241-242 (Trevino) italics
omitted.)
"Whether a crime qualifies as a serious felony is determined by section 1192.7,
subdivision (c), which lists and describes dozens of qualifying crimes, including murder,
robbery, kidnapping, and forcible sexual assaults. [Citation.] 'Under our sentencing
laws, foreign convictions may qualify as serious felonies, with all the attendant
consequences for sentencing, if they satisfy certain conditions. For a prior felony
conviction from another jurisdiction to support a serious-felony sentence enhancement,
the out-of-state crime must "include[] all of the elements of any serious felony" in
California. (§ 667, subd. (a)(1).) For an out-of-state conviction to render a criminal
offender eligible for sentencing under the three strikes law (§§ 667, subds. (b)-(i),
1170.12), the foreign crime (1) must be such that, "if committed in California, [it would
be] punishable by imprisonment in the state prison" (§§ 667, subd. (d)(2), 1170.12,
subd. (b)(2)), and (2) must "include[] all of the elements of the particular felony as
defined in" section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)).' " (People v.
Navarette (2016) 4 Cal.App.5th 829, 842.)
27
Thus, a foreign offense that includes all elements of a California qualifying felony
can establish a strike prior and a serious felony prior. (See People v. Woodell (1998) 17
Cal.4th 448, 453; People v. Myers (1993) 5 Cal.4th 1193, 1200-1201 (Myers).) In
determining whether the foreign prior contains the elements of the California felony, the
trier of fact may not look outside the record of conviction, but may consider any evidence
in the record of the foreign conviction "if not precluded by the rules of evidence or other
statutory limitation[s]." (Myers, at p. 1201; see also People v. Riel (2000) 22 Cal.4th
1153, 1204-1205.)
C. Analysis
Johnson does not dispute that the elements of murder in Jamaica are aligned with
section 187. He argues, however, that his prior conviction does not qualify as a serious
prior felony or a strike prior because the Jamaican legal system allows a murder
conviction by a jury of 11, and not 12, if a juror dies or is "discharged by the Court
through illness or other sufficient cause," and allows for conviction when nine jurors are
in agreement. Johnson contends that because article 1, section 16 of the California
Constitution provides a criminal defendant with a right to be tried by an impartial and
unprejudiced jury of 12 and requires a unanimous verdict, his right to equal protection
under the United States Constitution is violated by the use of the Jamaica conviction.7
7 The Attorney General argues as an initial matter that Johnson waived this issue because it was not raised in the trial court. We agree the issue was forfeited, but exercise our discretion to consider the claim to avoid a later challenge to the judgment on the basis of ineffective assistance of counsel.
28
" ' "The concept of the equal protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate purpose of the
law receive like treatment." ' " (In re Lemanuel C. (2007) 41 Cal.4th 33, 47.) To prevail
on an equal protection claim, the defendant must show (1) the state has adopted a
classification that affects two or more similarly situated groups in an unequal manner,
and (2) the challenged classification does not bear a rational relationship to a legitimate
state purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) When determining
whether two persons are similarly situated, the court does not inquire whether they are
similarly situated for all purposes, but whether they are similarly situated for purposes of
the law challenged. (Id. at pp. 1199-1200.)
Under the recidivist statutes at issue, to determine if a foreign conviction qualifies
the defendant for increased punishment, the relevant inquiry is " 'whether the offense of
which the defendant was convicted in [the foreign jurisdiction] includes the elements of
first or second degree murder in California such that the [foreign] offense was one which
had the capacity for punishment as first or second degree murder.' " (People v. Martinez
(2003) 31 Cal.4th 673, 681, italics omitted.) The recidivist laws do not look to the
process by which the conviction was obtained, but rather to the elements of the crime for
which the defendant was convicted. As discussed, a foreign conviction may form the
basis for a prior felony enhancement or strike if the crime " 'includes all of the elements
of any serious felony' in California." (People v. Navarette, supra, 4 Cal.App.5th at p.
While no California opinion has explored whether the process afforded in a
foreign jurisdiction must meet California's own constitutional requirement of 12
unanimous jurors for a conviction, we agree with the Attorney General that the California
Supreme Court's decision in People v. Andrews (1989) 49 Cal.3d 200 (Andrews) provides
useful guidance and supports the conclusion that a prior foreign conviction can form the
basis for a sentencing enhancement, even if the foreign jurisdiction did not afford the
same procedural protections available to a defendant in California.
In Andrews, the defendant was convicted of first degree murder. The jury found
true the special circumstance allegation under section 190.2, subdivision (a)(2) that he
had been previously convicted of murder, which made the defendant eligible for the death
penalty and life in prison without the possibility of parole. (Andrews, supra, 49 Cal.3d at
p. 221.) The defendant was 16 when he committed the prior offense in Alabama, "where
he was charged and convicted as an adult. Under Alabama law at the that time, minors
16 to 18 years old came within the original jurisdiction of the adult criminal court. . . .
Had defendant committed the murder in this state, California law would have permitted
his being tried as an adult only if a juvenile court had [first] found him unfit . . . ." (Ibid.)
The defendant argued he was denied equal protection under the federal and state
Constitutions because he was treated differently than capital defendants who had
committed murder at the age of 16 in California, who would have been entitled to a
fitness hearing. (Id. at p. 223.)
The Supreme Court summarily rejected this assertion, stating "[i]n no two states is
the process by which a conviction is obtained identical. This does not mean, however,
30
that a violation of equal protection results when a conviction from a foreign jurisdiction
and a California conviction for the same offense are accorded equal weight . . . ."
(Andrews, supra, 49 Cal.3d at p. 224.) The court continued, "[w]e conclude that, as long
as the guilt ascertainment process in the foreign jurisdiction is not in and of itself
constitutionally flawed, there is no constitutional bar against treating a murder conviction
from a foreign state in the same manner as a California conviction for the same offense."
(Ibid.)
Johnson argues that unlike the prior conviction in Andrews, his Jamaican
conviction does not pass constitutional muster in California because our Constitution
requires a unanimous jury of 12 for a criminal conviction.8 Because not all foreign
jurisdictions provide the same procedural protections as California's constitution, he
argues defendants with foreign convictions are treated in an unequal manner. However,
"[t]o accept defendant's statutory construction would mean that every time the
prosecution alleged a murder conviction from a foreign jurisdiction, the trial court must
determine whether the guilt ascertainment procedures of that jurisdiction afforded the
same procedural protections as those in California." (Andrews, supra, 49 Cal.3d at
p. 222.) In Andrews, the court held plainly that it did "not read such a requirement into
the [analogous language in the death penalty] statute." (Ibid.)
8 There is no dispute that the federal Constitution does not impose these requirements. (See Williams v. Florida (1970) 399 U.S. 78, 100 ["the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment"]; Johnson v. Louisiana (1972) 406 U.S. 356, 359 [" '(i)n criminal cases due process of law is not denied by a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the verdict' "].) 31
In reaching this conclusion, the Andrews opinion used "a jury consisting of fewer
than 12 persons" as one example of a procedure that is required in California, but the
absence of which would not preclude a foreign conviction from forming the basis for a
sentence enhancement under section 190.2. (Andrews, supra, 49 Cal.3d at p. 223.) The
court noted that such "procedural differences might conceivably spell the difference
between a murder conviction and some other result," but concluded neither the language
of section 190.2 nor its legislative history showed that the Legislature or the electorate
"intended that the prosecution's ability to use convictions from other states should turn on
such questions." (Andrews, at p. 223.) The court held the intent of the statute "was to
limit the use of foreign convictions to those which include all the elements of the offense
of murder in California, and [that the] defendant . . . failed to show otherwise." (Ibid.)
As stated, Johnson does not dispute that the elements of murder in Jamaica are
aligned with the elements of murder in California. Nor does he contend that he could not
have been convicted of murder if he had committed the crime in California. Because the
recidivist sentencing provisions at issue look exclusively to the elements of the crime to
determine their application, we reject Johnson's assertion that the laws treat defendants
with convictions from foreign jurisdictions differently than those who are charged and
convicted in this state. In other words, the dichotomy that Johnson has set up between
himself and those with prior murder convictions obtained in California is a false one.
(See People v. Johnson (1991) 233 Cal.App.3d 1541, 1549-1550 [rejecting claim that
Nevada conviction for burglary could not serve as basis for prior serious felony because
"Nevada law did not allow him the same procedural protections he would have enjoyed
32
in California"].) Contrary to Johnson's assertion, the two types of defendants are treated
equally so long as the crime at issue is the same in both jurisdictions.9
Further, and critically, Johnson has not shown that his conviction was in fact
deficient under California's Constitution. (See People v. Tassell (1984) 36 Cal.3d 77, 92
[Rejecting defendant's claim that prior conviction under Florida law improper basis for
sentencing enhancement because "the documentation submitted by defendant [was]
insufficient to support his claim that he was not advised of his rights against self-
9 Johnson also relies on Trevino, supra, 26 Cal.4th 237 to support his argument that Andrews is not applicable here, but his reliance is misplaced. Trevino held that it is the prior offense that establishes whether the defendant is eligible for the death penalty or a life sentence without the possibility of parole under section 190.2, subdivision (a), and not the particular characteristics of the defendant at the time he committed the offense. (Trevino, at p. 244.) In Trevino, the defendant committed a prior murder at age 15 in Texas where he was tried as an adult. (Ibid.) Had the crime occurred in California he would have been tried as a juvenile and, on appeal, the defendant argued this distinction precluded the use of the conviction as the basis for enhanced punishment under section 190.2. (Trevino, at p. 239-240.) In rejecting this argument, the Trevino court distinguished the statutory language of section 668 from that of section 190.2, noting that "section 668 would permit consideration of a defendant's age in determining whether that defendant could have been imprisoned for the same conduct in California." (Trevino, at p. 241-242.) In drawing this distinction the court pointed to the statutory language of section 668, which provides, " 'Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state.' " (Trevino, at p. 241, quoting § 668.) In contrast, section 190.2 stated, " 'For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.' " (Trevino, at p. 241.) We do not agree with Johnson that this distinction is relevant to the determination in this case. Unlike the defendant in Trevino, Johnson points to no personal characteristic that would have precluded a conviction in California had the murder he committed in Jamaica occurred in this state. 33
incrimination and to confront and cross-examine witnesses at the time he entered his
guilty plea."].) Johnson has presented no evidence from his prior trial that shows his
conviction was obtained by anything less than 12 unanimous jurors.
Even if we were to conclude that the two groups of defendants are treated
differently, however, Johnson has also not shown the state lacked an appropriate basis for
differing treatment. The challenged classification bears a rational relationship to the
legitimate state purpose of imposing greater punishment on offenders who have shown a
propensity to repeat their violent crimes, regardless of where those crimes occurred. (See
§ 667, subd. (b) ["It is the intent of the Legislature . . . to ensure longer prison sentences
and greater punishment for those who commit a felony and have been previously
convicted of one or more serious and/or violent felony offenses."]; People v. Superior
Court (2014) 225 Cal.App.4th 1007, 1016 [The purpose of the Three Strikes law is " ' "to
ensure longer prison sentences and greater punishment for those who commit a felony
and have been previously convicted of serious and/or violent felony offenses" ' [citation]
and 'to promote the state's compelling interest in the protection of public safety and in
punishing recidivism.' "].) For these reasons, we reject Johnson's claim that the use of his
Jamaican conviction resulted in a violation of his constitutional rights.
IV
Guthrie's Motion to Suppress His Statements to Police
Guthrie contends that statements he made to police on August 27, 2014, after his
arrest were obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S.
436 (Miranda). Guthrie asserts he unequivocally invoked his right to counsel during the
34
interview, and that all of the statements made after that invocation were improperly
admitted at trial. We disagree.
A. Relevant Background
On August 27, 2014, Detective Gary Avalos arrested Guthrie at the Via Monzon
residence. Avalos and San Diego Police Sergeant Greg Flood questioned Guthrie in an
interview room at the police headquarters furnished with recording equipment. Video
footage of the interview was played for the jury. After asking Guthrie basic identifying
information, Avalos read Guthrie his Miranda rights. Avalos then asked Guthrie if he
understood those rights and if he was willing to talk. Guthrie responded "Yeah…I,
I…yeah cause I want to, I want to know what this is about." Flood then explained that if
Guthrie was not a United States Citizen he also had the right to speak with his consulate.
Guthrie did not assert his rights.
Avalos and Flood then continued questioning Guthrie, primarily about his
relationship with Ambrose and Martin, Guthrie's whereabouts, and his identity. Avalos
showed Guthrie a photo of Johnson from the liquor store's surveillance camera and asked
Guthrie who the man was. Guthrie denied knowing the man or being at the scene of the
murder. Avalos showed Guthrie a copy of a Florida driver license with his name and
picture, and Guthrie finally admitted his identity and told the officers he did not disclose
his name because he was in the United States illegally. Avalos then pressed Guthrie to
admit he was at the scene of the murder and Guthrie repeatedly denied it, eventually
35
stating, "Then charge me, sir. A lawyer, lawyer."10 Flood then stated: "I mean do you
want to talk to a lawyer?" Guthrie responded: "Yeah, yeah. Do, do I, if anything…" The
colloquy continued: "FLOOD: We want to continue to talk to you. Do you want to
continue to talk to us or do you want to talk to a lawyer. [¶] GUTHRIE: Listen, listen.
If you're gonna charge me, charge me. If not, let me go. Or, or call . . . immigration and
say I'm here illegally. [¶] FLOOD: Well, you're under arrest right now. [¶] GUTHRIE:
Yeah. [¶] FLOOD: So, you understand that. [¶] GUTHRIE: Yeah. [¶] FLOOD:
Okay. ¶ GUTHRIE: Okay, okay. You, you, but you read me my rights, but what I under
arrest for? [¶] FLOOD: Right now you're under arrest for murder."
Flood continued the questioning, telling Guthrie they knew he was not the gun
man, but they knew he was at the scene and involved in the murder. Guthrie continued to
deny he was at the scene and maintained he did not know anything about Johnson.
Avalos asked Guthrie to give him information about his connection to Ambrose, but
Guthrie declined and said, "I'm, I'm not speaking no more man. Because I don't know
that dude [referring to Johnson], man." Avalos pressed Guthrie to continue to provide
information to help himself out if what he was saying was true. The interview then
continued for over another hour. Guthrie continued to deny any involvement in the
shooting, but admitted he was involved in drug sales with Grant and eventually provided
information about the motive for the killing, telling Avalos and Flood that Canady had
robbed Grant and slept with Martin.
10 The transcript of the interview contains an error and states instead, "Then charge me sir. I, I can get a lawyer." (Italics added.) 36
Before trial, Guthrie moved to suppress the videotaped interview. At the hearing
on the motion, Guthrie's attorney asserted that by stating, "yeah, yeah" in response to
Flood's question, "do you want to talk to a lawyer," Guthrie invoked his right to counsel.
The prosecutor argued Guthrie's words were ambiguous because he uttered the phrase
"yeah, yeah" constantly throughout the interview, and that it was reasonable for Flood
and Avalos not to perceive it as a clear request for an attorney. The trial court found that
Guthrie made a free and knowing waiver of his right to an attorney at the beginning of
the interview, and that Guthrie did not "make an unequivocal, unambiguous assertion of
[that] right[] in order to revoke that waiver."
B. Legal Principles
As a safeguard to protect a suspect's Fifth Amendment privilege against self-
incrimination, the United States Supreme Court requires law enforcement agencies to
advise a suspect, prior to any custodial questioning, "that he has the right to remain silent,
that anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479;
People v. Martinez (2010) 47 Cal.4th 911, 947 (Martinez).) Before admitting a
defendant's incriminating statements into evidence, the prosecution must demonstrate
"the defendant knowingly and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel." (Miranda, at p. 475.)
After a knowing and voluntary waiver of the rights to remain silent and to the
presence and assistance of counsel, law enforcement may continue questioning the
37
suspect until and unless the suspect clearly and unambiguously invokes these rights.
(Davis v. United States (1994) 512 U.S. 452, 461 (Davis).) An unambiguous request for
counsel or refusal to talk bars further questioning (People v. Cruz (2008) 44 Cal.4th 636,
668 (Cruz)) and the interrogation must end (Miranda, supra, 384 U.S. at p. 474).
If a suspect makes an ambiguous statement that could be construed as an
invocation of his Miranda rights, a different standard applies. A statement is ambiguous
when a reasonable officer, in view of the totality of the circumstances, would have
understood "only that the suspect might be invoking the right" to remain silent or to the
assistance of counsel. (People v. Williams (2010) 49 Cal.4th 405, 428 (Williams).)
"[O]fficers may, but are not required to, seek clarification of ambiguous responses before
continuing substantive interrogation." (Id. at p. 427, italics omitted; see Martinez, supra,
47 Cal.4th at p. 949 [the same rules apply to invocations of the right of counsel and the
right to remain silent].)
"In certain situations, words that would be plain if taken literally actually may be
equivocal under an objective standard, in the sense that in context it would not be clear to
the reasonable listener what the defendant intends. In those instances, the protective
purpose of the Miranda rule is not impaired if the authorities are permitted to pose a
limited number of followup questions to render more apparent the true intent of the
defendant." (Williams, supra, 49 Cal.4th at p. 429.) Although officers are not required to
clarify what may be a post waiver invocation, " 'it will often be good police practice for
the interviewing officers to clarify . . . .' whether the right was being invoked."
(Martinez, supra, 47 Cal.4th at p. 947, quoting Davis, supra, 512 U.S. at p. 461.)
38
"In evaluating the voluntariness of a statement, no single factor is dispositive.
[Citation.] The question is whether the statement is the product of an ' "essentially free
and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his
capacity for self-determination critically impaired" ' by coercion. [Citation.] Relevant
considerations are ' "the crucial element of police coercion [citation]; the length of the
interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's
maturity [citation]; education [citation]; physical condition [citation]; and mental
health." ' " (Williams, supra, 49 Cal.4th at p. 436.)
This court conducts an independent review of the trial court's legal determination
of the post waiver invocation of a Miranda right, relying upon the trial court's factual
findings, if supported by substantial evidence. (Williams, supra, 49 Cal.4th at p. 425.)
C. Analysis
We agree with the trial court that Guthrie's statements to Avalos and Flood after he
initially waived his right to counsel did not constitute an invocation of his right to counsel
and against self-incrimination. Guthrie does not contest the fact that he initially waived
his right to counsel immediately after Avalos read him his rights.11 Thus, to invoke his
rights during the interview, Guthrie needed to unambiguously request an attorney. (See
Cruz, supra, 44 Cal.4th at p. 668.)
11 Because Guthrie initially waived his right to counsel, his heavy reliance on Smith v. Illinois (1984) 469 U.S. 91 (Smith) is misplaced. Smith explicitly considered only the threshold inquiry of "whether [the defendant] invoked his right to counsel in the first instance." (Id. at p. 95.) Not the invocation of the right after an initial waiver at issue here.
39
Approximately 30 minutes into the close to two and a half hour interrogation,
Guthrie grew frustrated with the officers' repeated accusation that he was at the scene of
the crime. In response to their repeated statements that they knew Guthrie was near the
barbershop when the shooting occurred, Guthrie stated in a frustrated tone, "[t]hen charge
me, sir. A lawyer, lawyer." To clarify if Guthrie was invoking his right to
representation, Flood asked a follow up question, "do you want to talk to a lawyer?"
Guthrie responded by saying, "Yeah, yeah. Do, do I, if anything. . . ." This statement
was objectively ambiguous because from the start of the interrogation, Guthrie responded
to almost every statement and question posed by Avalos and Flood by saying, "yeah,
yeah."
Flood, reasonably, then sought further clarification, stating, "We want to continue
to talk to you. Do you want to continue to talk to us or do you want to talk to a lawyer?"
Guthrie again did not unambiguously invoke his rights, stating only, "If you're gonna
charge me, charge me. If not, let me go. Or, or call . . . immigration and say I'm here
illegally." Flood explained that Guthrie was under arrest and that he was being charged
with murder. The interrogation then continued without any further statement from
Guthrie about his rights.
Guthrie contends that his statement, "yeah, yeah," to Flood's first question was an
unambiguous invocation of his rights. We disagree. The trial court's finding that the
statement was ambiguous was supported by the evidence before the court. Because of
Guthrie's speech patterns, specifically his habit of stating "yeah, yeah" in response to
most of the questions Avalos and Flood asked, it was reasonable for the officers to
40
understand only that Guthrie might be invoking his right to assistance of counsel and to
seek further clarification. (Williams, supra, 49 Cal.4th at 428.) Guthrie then failed to
signal a clear request for a lawyer and the interrogation properly continued. The trial
court's denial of Guthrie's motion to suppress was not error.
V
Sufficiency of the Evidence to Support Guthrie's Conviction for First Degree Murder
Guthrie next contends that the evidence at trial was insufficient to support his
conviction for aiding and abetting, or conspiring to commit, first degree murder. He
argues that all of the evidence presented by the prosecution was circumstantial, and no
direct evidence established Guthrie was even at the scene of the crime.
A. Legal Principles
In reviewing the sufficiency of the evidence to support a jury's verdict finding a
defendant guilty of a criminal offense, we apply the substantial evidence standard of
review. (People v. Johnson (1980) 26 Cal.3d 557, 575-579.) "Under this standard, the
court 'must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial
evidence test is on the whole record of evidence presented to the trier of fact, rather than
on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
"The testimony of one witness, if believed, may be sufficient to prove any fact.
"Further, 'the appellate court presumes in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.' [Citation.] This standard
applies whether direct or circumstantial evidence is involved. 'Although it is the jury's
duty to acquit a defendant if it finds the circumstantial evidence susceptible of two
reasonable interpretations, one of which suggests guilt and the other innocence, it is the
jury, not the appellate court that must be convinced of the defendant's guilt beyond a
reasonable doubt. [Citation.] " 'If the circumstances reasonably justify the trier of fact's
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.' " '
[Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 139; see People v. Mobley (1999) 72
Cal.App.4th 761, 788-789.)
"Whether a particular inference can be drawn from the evidence is question of
law." (People v. Austin (1994) 23 Cal.App.4th 1596, 1604.) " 'An inference is a
deduction of fact that may logically and reasonably be drawn from another fact or group
of facts found or otherwise established in the action.' (Evid. Code, § 600, subd. (b).)
However, '[a] reasonable inference . . . "may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A
finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence." [Citation.]' " (People v. Davis (2013)
57 Cal.4th 353, 360.)
42
B. Analysis
A person aids and abets the commission of a crime when he acts with knowledge
of the unlawful purpose of the perpetrator and with the intent or purpose of encouraging
or facilitating the commission of the crime, and his act or advice in some manner aids,
promotes, encourages or instigates the commission of the crime. (People v. Beeman
(1984) 35 Cal.3d 547, 560-561.) "Intent is rarely susceptible of direct proof and usually
must be inferred from the facts and circumstances surrounding the offense." (People v.
Pre (2004) 117 Cal.App.4th 413, 420.) To establish liability as a coconspirator, the
prosecutor must prove the defendant intended to and agreed with a coconspirator to
commit a crime, and that one member of the conspiracy committed an overt act to
accomplish the crime. (People v. Williams (2008) 161 Cal.App.4th 705, 710.)
Guthrie argues reversal is required because the prosecution failed to present
sufficient evidence to support the conviction under either theory. Guthrie asserts the
Attorney General can only point to five types of evidence, none of which establish his
involvement in Canady's murder: (1) Guthrie's pretrial statements to police, (2) Guthrie's
relationship with Grant, (3) Guthrie's knowledge of Grant's motive to murder Canady,
(4) Guthrie's presence near the murder scene, and (5) Guthrie's contacts with Johnson in
the time surrounding the murder. Guthrie's characterization of the evidence as
insufficient, however, is not supported by the record before this court.
As Guthrie argues, his close relationship with Grant and his knowledge of the
motive and the crime, standing alone, do not establish his involvement in the crime.
Other facts, however, are sufficient to support the jury's verdict. This evidence included
43
the cell phone records placing Guthrie at the scene the day before the murder, cell phone
records showing Guthrie was on the phone with Johnson seconds before the shooting and
seconds after Canady is seen on the video surveillance footage coming outside of the
barbershop (confirming his presence there), records showing Guthrie on the phone with
Johnson shortly after the shooting and showing his movement away from the scene at the
same time Johnson was moving away, and video footage of a man meeting Guthrie's
physical characteristics and shadow boxing serving as lookout and support for Johnson at
the scene.
As Guthrie notes, the "prosecution's case hinged on its ability to prove [Guthrie]
was one of the two men in front of Nu's Auto Repair." Viewing the evidence before the
jury—particularly the cell phone records and video footage—in the light most favorable
to the judgment, there was sufficient evidence to support the jury's finding that Guthrie
was one of those men. In addition, Guthrie's assertions (1) that the evidence against him
was only circumstantial and (2) that circumstantial evidence alone cannot be sufficient as
a matter of law are both inaccurate. The cell phone records constituted direct evidence of
Guthrie's communications with Johnson at the scene of the murder. (See Evid. Code,
§ 410 [" 'direct evidence' means evidence that directly proves a fact, without an inference
or presumption, and which in itself, if true, conclusively establishes that fact"].)
Further, that the verdict rested on circumstantial evidence does not warrant
reversal. " '[T]he appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard
applies whether direct or circumstantial evidence is involved. 'Although it is the jury's
44
duty to acquit a defendant if it finds the circumstantial evidence susceptible of two
reasonable interpretations, one of which suggests guilt and the other innocence, it is the
jury, not the appellate court that must be convinced of the defendant's guilt beyond a
reasonable doubt. [Citation.] " 'If the circumstances reasonably justify the trier of fact's
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.' " '
[Citation.]" (People v. Catlin, supra, 26 Cal.4th at p. 139; see People v. Mobley, supra,
72 Cal.App.4th at pp. 788-789.)
While no witness confirmed that one of the two accomplices seen in the video
surveillance footage was Guthrie, the video footage combined with the cell phone
evidence showing Guthrie's involvement with Johnson (and to a lesser extent the
testimony that Guthrie was a former boxer), amply supported the inference that Guthrie
was one of Johnson's accomplices. (See People v. Campbell (1994) 25 Cal.App.4th 402,
409 [" '[A]mong the factors which may be considered in making the determination of
aiding and abetting are: presence at the scene of the crime, companionship, and conduct
before and after the offense.' "].) In sum, there was sufficient evidence to support the
jury's finding that Guthrie knowingly and willingly participated in the murder of Canady.
45
VI
Canady's Rap Lyrics
Guthrie next contends the trial court abused its discretion by admitting into
evidence a rap song recorded by Canady before his death. The prosecution argued the
song was evidence of the defendants' motive to kill Canady.
A. Relevant Background
The prosecution moved to admit statements made by Canady that he had "stolen
marijuana worth $250,000" from Grant and that he slept with Martin. The district
attorney argued the statements, one of which was the rap song, were relevant to prove
motive and the identity of the perpetrator. The prosecutor also asserted the statements
were admissible hearsay because they were declarations against interest.
In response, Guthrie argued "people take creative license with songs" and the
statements, therefore, were not "[a] reliable indicia of any facts." Guthrie's counsel
argued the statements should not be admitted because Canady could not be cross-
examined. He also argued it was not clear what the meaning of the lyrics were, so there
was no way to determine whether the lyrics constituted a statement against penal interest.
The trial court found the evidence was relevant to show motive and identity, and
that the statements were hearsay but admissible under the exception for statements
against penal interest. The court acknowledged the lyrics were subject to interpretation,
but found this "goes to the weight, not the admissibility." The court also ruled Evidence
Code section 352 did not require exclusion of the statements.
46
During trial, the prosecution introduced the lyrics of Canady's song found on his
cell phone. The lyrics matched portions of a recorded song titled "Don't Threaten My
Life," which officers found on a CD obtained after Canady's death. The prosecution
played the song for the jury and provided them with a transcript of the lyrics. The lyrics
included passages in which Canady rapped that if his life was threatened, the instigator
should be "ready to die," and that his enemies were plotting to kill him. Other passages
seemed to refer to his affair with Martin: "Soon as I let off this chopper your girl gon'
call the boys. She got my name all in a twist. Do your investigation just don't trust your
bitch. She got them killas in your house fuckin' on your couch. Fuckin' on your bed.
Fuckin' up your head. Kissin' my pinky ring when she saw them rocks. . . . If she ain't
ridin' foreign then her life is borin'. Said you ain't scorin' if she ain't Chanel, Christian,
Diorin'. Just 'cause I'm paid in full don't mean that I won't bang the tool. Boy, I know
you a rude boy. But your bitch actin' a fool boy. Light and 'cush, you bees' watchin' my
movies. We the cartel savages. Gold plated oozi's. . . ."
During his testimony, Avalos explained that Canady's reference to "I'm in the
west" was acknowledging his membership in the West Coast Crips, while "lighting cush
doobies" referred to smoking marijuana. He also explained that Canady's use of the
phrase "trap it out" and his self-identification as "cartel savages with gold-plated Uzis"
were narcotics trafficking references. Avalos stated other terms used in the song referred
to street robberies and threats to kill anyone that attempted to hurt him.
During closing arguments for Guthrie's jury, the prosecutor referred to the song
once, repeating Canady's lyric " 'you ain't scoring if [you] ain't Chanel [and] Christian
47
Dioring,' " while discussing Guthrie's motivation for being involved in the crime.
Guthrie's counsel's closing argument also referenced the lyrics, stating, "Canady taunted
[Grant] with that rap song. Come kill me. I'm ready for you. This is life on the streets.
And Omar [Grant] went and had him killed. But he did not involve Ian Guthrie in this."
B. Legal Principles and Analysis
As discussed, the admission of evidence is governed by Evidence Code sections
210, 351, and 352. All relevant evidence is admissible, unless excluded by statute.
(Evid. Code, § 351.) Relevant evidence, however, may be excluded by the trial court if
its "probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury." (Id., § 352.) "We review a
trial court's decision to exclude evidence for abuse of discretion. (People v. Linton,
[supra, 56 Cal.4th at p. 1181].) The decision to exclude evidence 'will not be disturbed
except on a showing [that] the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice
[citation].' " (People v. Peoples, supra, 62 Cal.4th at p. 745.)
Guthrie contends the rap lyrics were not relevant to the case because they
contained no information that was specific to Canady's murder. He argues upon hearing
the rap, the "jury was left to engage in pure speculation that the lyrics might be talking
about Grant and Talya, might be talking about Canady's theft of Grant's marijuana, might
e talking about his affair with Grant's girlfriend, and might be talking about Canady's
48
awareness that Grant might retaliate." Guthrie also asserts the rap lyrics were not
probative because they were cumulative to other evidence introduced by the prosecution.
We disagree with Guthrie's assertions. The lyrics were relevant to the
prosecution's theory of the case, particularly the defendants' motive to seek revenge for
Canady's theft and relationship with Martin. The lyrics tended to show that Canady was
engaged in conduct that could provoke retaliation by Grant. Specifically, Canady's lyrics
included statements about making money by selling drugs stolen from a girl who couldn't
be trusted and that the theft was from "rude boys" and "Jack boys," slang parlance for
Jamaicans. A trial court has wide latitude to admit evidence relevant to motive (People v.
Gonzalez (2005) 126 Cal.App.4th 1539, 1550) and Canady's lyrics did not fall outside
this broad discretion.
Further, Guthrie has not explained why the lyrics were inflammatory or prejudicial
to his defense, instead focusing narrowly on the relevance of the lyrics and their
ambiguity. Thus, even if the evidence's probative value was relatively low, Guthrie has
failed to show that their relevance was outweighed by the probability of prejudicial
effect. (See People v. Cudjo (1993) 6 Cal.4th 585, 609 ["Unless these dangers
'substantially outweigh' probative value, the objection must be overruled."].) Guthrie has
not shown the trial court abused its discretion in admitting this evidence.
VII
Motion for Continuance to Conduct Discovery Concerning Use of Cell Site Simulator
Guthrie next asserts that the trial court's denial of his motion to continue the
sentencing hearing constituted an abuse of discretion and resulted in the violation of his
49
rights to due process, effective assistance of counsel, and a fair trial. Guthrie sought a
continuance to conduct additional discovery to determine whether investigators used a
technology called a cell site simulator to locate him.12 The Attorney General responds
that Guthrie's claim lacks merit because (1) the postconviction motion for a continuance
was repetitive of a motion in limine the trial court considered and properly denied; (2) if
the cell site simulator was used, it fell within the scope of the warrants obtained by
police; and (3) Guthrie's new accusation that the technology could have been used to
obtain the content of cellular communications is baseless.
A. Relevant Background
On July 22, 2014, the San Diego Police Department collaborated with the FBI's
Violent Crimes Task Force (VCTF) to obtain search warrants seeking call detail records
and cell site data from Cricket and Verizon for the "832" and "619" mobile phone
numbers that were used by Johnson and Guthrie to communicate to each other. One of
the search warrants authorized " 'all activation and monitoring of a tracking device and
ongoing disclosure of location information, including cell site locations and Global
Position Satellite ('GPS') coordinates, also known as 'pinging', including, but not limited,
to cell site location utilized at call initiation and call termination, real-time Global
Positioning System ('GPS') coordinates location of the handset, latitude and longitude,
12 "A cell-site simulator—sometimes referred to as a 'StingRay,' 'Hailstorm,' or 'TriggerFish'—is a device that locates cell phones by mimicking the service provider's cell tower (or 'cell site') and forcing cell phones to transmit 'pings' to the simulator. The device then calculates the strength of the 'pings' until the target phone is pinpointed." (United States v. Lambis (S.D.N.Y. 2016) 197 F.Supp.3d 606, 609.)
50
E911 location data, and call progress locations . . . , and for government agents to
monitor the tracking devices, and subscriber information for a period of 30 days.' "
With respect to those two mobile numbers, the trial court authorized an additional
search warrant to " 'download and forensically examine all contents of any such phone or
device in order to obtain active or deleted data including but not limited to phone
sent and received emails, SMS/text messages, access to social media sites such as
Facebook, Twitter, Social, and Instagram posts, or other digital communication, data
access times and locations, GPS information for posts, photos, and any other stored
location information. . . .' "
Using cell phone data they believed was authorized by the warrants, VCTF agents
tracked Guthrie's 619 number to the area around 9881 Via Monzon. The agents then
began surveillance in the surrounding vicinity and eventually observed Guthrie using the
619 mobile device through an open garage door. The officers later confirmed that
9881 Via Monzon was Guthrie's residence. VCTF agents used a similar process to
determine Johnson's location in Kansas City, Missouri. Law enforcement authorities
never accessed recorded conversations, text messages, or other communications from
defendants' phones.
Guthrie and Johnson moved in limine to suppress evidence and for additional
discovery regarding the cell phone tracking devices. Guthrie's attorney asserted that
based on the discovery of his client's cell phone records, he suspected a cell site simulator
was used to find Guthrie's location and that the use of such a device was not
51
encompassed by the warrant issued by the court. Defense counsel argued they had
requested this information from the prosecution, but the district attorney refused to
confirm or deny that a cell site simulator had been used in the investigation. Guthrie's
counsel agreed with the trial court that "the current state of federal [and state] law would
allow, at least upon a showing of probable cause, a court to issue a warrant to allow the
capture of prospective or real-time cell site information." Guthrie's attorney also
conceded the court had the ability to issue a warrant to allow law enforcement to use such
a device, but argued the court could not do so unless law enforcement provided the court
with clear information about the device it intended to use, which had not occurred in this
case.
In response to the arguments of defense counsel, the district attorney asserted the
warrants that were issued by the court in this case were broad enough to include the use
of the cell site simulator because they requested global positioning satellite (GPS)
information, which can tell law enforcement "specifically where somebody is at a certain
point in time." Guthrie's counsel argued that if the device was used, Guthrie's address
was obtained by searching the Via Monzon home without a valid warrant. At the
conclusion of the hearing, the court ordered an in camera hearing to determine whether
the cell site simulator was used.
After conducting the in camera inquiry, the trial court found the search did not
exceed the scope of the authorized warrants and denied the motion for a continuance to
conduct additional discovery. The trial court reasoned that the authorized warrants
allowed the use of "any electronic device that permits the tracking of a person or an
52
object, including, . . . inside the person's home." The court explained, "when the court
issues a search warrant for a house for the police to go in, whether it is a homicide scene
or a drug scene or whatever it might be, the court doesn't tell the police officers how to
execute it. The officers get to execute it, provided it doesn't shock the conscience of the
court and complies otherwise with the fourth amendment jurisprudence, however they
want. I think the same thing is applicable here. The court authorized the seizure of the
information that was seized. The officers, the state agents executed that in the way that
they executed it. There was no seizure outside the scope of the warrant." The court
agreed with the prosecution that if the cell site simulator was used, its use was authorized
by the warrants that were issued.
Guthrie and Johnson filed a separate motion to suppress the evidence found at the
Via Monzon residence, arguing again that any cell site simulator signals captured from
within the residence violated their constitutional rights. The trial court denied that
motion, again concluding that if a cell site simulator was used, it did not exceed the scope
of the warrants.
During trial, after the testimony of the FBI agent who assisted with the cell phone
aspect of the investigation, Guthrie's counsel moved for a mistrial. Guthrie's attorney
argued his client was unfairly prejudiced because the use of the cell site simulator, which
allowed law enforcement to locate Guthrie with precision, would cause the jury to
conclude Guthrie was near the scene of the crime on the day of the murder even though
the type of cellular data used to show this fact was not as precise as the cell site simulator
technology. The court denied the motion, reiterating he had considered the issue before
53
trial and continued to find that the "the search warrants that were issued authorized the
capture of the [GPS] coordinates" using the cell site simulator technology.
After the verdict, but prior to sentencing, Guthrie and Johnson moved jointly to
continue sentencing "to allow for further discovery concerning the San Diego Police
Department's unauthorized use of cell site simulators, as described herein, during the
investigation into Lamar Canady's death." In the alternative, the defendants moved for a
new trial pursuant to section 1181 subdivision (5). Guthrie and Johnson asserted that the
court and the defense were "deceived into believing surveillance performed during the
investigation into Lamar Canady's death was restricted to pen-register, trap-and-trace, and
geological tracking devices," which "directly resulted in deprivation of the defendants'
rights to a fair trial . . . ." The defendants asserted the devices were designed "to
eavesdrop, record, and possibly alter a target's intercepted communications."
Guthrie asserted additional discovery was warranted because the timing of the
warrants suggested that police had conducted "illegal call and text message
eavesdropping" and suggested "widespread prosecutorial misconduct and illegal
surveillance practices by the SDPD and District Attorney's Office." Guthrie conceded
that "the Stingray Warrants arguably authorized the SDPD to use some of [the cell-site
simulator's] functions . . . ." He contended, however, that because the cell site simulators
might have the ability to engage in content-based eavesdropping, the authorities here
engaged in it.
When the trial court asked for the evidence of such eavesdropping, defense
counsel admitted that they did not have such evidence and they were "asking for . . . the
54
continuance to obtain that." Without any supporting evidence, Guthrie asserted the trial
court had somehow been misled about the nature of the tracking device and contended
that law enforcement authorities had illegally gathered voice and written communications
that went beyond the parameters of the four search warrants issued in the case.
The court denied the motion for a continuance and the motion for a new trial. The
trial court found that the People had not used any tracking device to "access or record
conversations, text messages or other communications from a mobile phone." The court
concluded, for the third time, that even if a cell site simulator was used, its use was
permitted by valid warrants.
B. Legal Standards
A continuance of a criminal trial may be granted only for good cause, and the trial
court has broad discretion to determine whether good cause exists. (§ 1050, subd. (e);
People v. Alexander (2010) 49 Cal.4th 846, 934.) This court thus reviews a trial court's
denial of a motion for a continuance for abuse of discretion. (People v. Mungia (2008)
44 Cal.4th 1101, 1118.) " 'There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process.' " (Ibid.) "In determining whether a
denial was so arbitrary as to deny due process, the appellate court looks to the
circumstances of each case and to the reasons presented for the request." (People v. Frye
(1998) 18 Cal.4th 894, 1013.)
C. Analysis
Guthrie contends that the trial court's denial of his motion for a continuance to
conduct additional discovery was an abuse of discretion because there was evidence that
55
his Fourth Amendment rights might have been violated by investigators' use of a cell site
simulator. He asserts there would have been no detriment caused by granting the
continuance to seek additional discovery about the use of the cell site simulator. In
response, the Attorney General argues that Guthrie failed to show good cause for the
requested continuance. We agree.
The postverdict motion sought time to conduct the same discovery that Guthrie
and Johnson requested before trial. In their motion in limine, defendants asserted the
same arguments that Guthrie repeated in his postverdict motion for a continuance. In
response to the motion in limine, the trial court conducted a full hearing, including an in
camera evidentiary proceeding to address whether investigators used a cell site simulator
to engage in surveillance of the content of Guthrie's cell phone communications. The
court concluded that no such content surveillance had occurred, and found that the cell
site technology, which allowed police to narrow the geographic location of Guthrie's
phone, fell within the scope of the warrants issued by the court during the investigation.
The trial court's determination that Guthrie had not shown good cause for a
continuance did not constitute an abuse of the court's discretion. Importantly, Guthrie did
not provide any new information suggesting that the methods used by investigators were
outside the ambit of the validly issued warrants. Further, as requested by Guthrie, we
have reviewed the sealed transcripts of the in camera proceedings conducted by the trial
court, and the evidence confirms the technology used by investigators to locate the cell
phone conformed with the warrants issued by the court and that no content-based
56
surveillance occurred.13 In sum, Guthrie has not shown the court abused its wide
discretion to deny his motion for continuance.14
VIII
Senate Bill 620
Johnson's sentence includes an enhancement of 25 years to life under section
12022.53 for the personal use of a firearm causing death. While this matter was pending,
we granted Johnson's motion to file a supplemental brief to address the impact of Senate
Bill 620, which took effect on January 1, 2018, and provides trial courts with discretion
to strike firearm enhancements under sections 12022.5 and 12022.53. (See §§ 12022.5,
subd. (c) and 12022.53, subd. (h).) As Johnson points out, these subdivisions were not
effective at the time he was sentenced and the trial court, therefore, did not have
discretion to strike the firearm use enhancement. He asserts Senate Bill 620 should be
applied retroactively and we should remand this matter to allow the superior court to
consider striking his firearm use enhancement.
In its supplemental brief, the Attorney General concedes People v. Francis (1969)
71 Cal.2d 66 (Francis) is controlling and requires retroactive application of section
12022.53, subdivision (h) to all nonfinal judgments. In Francis, the defendant was
charged with selling and giving away marijuana. (Id. at pp. 69-70.) The matter was tried
13 On June 8, 2017, this court granted Guthrie's unopposed motion to review the sealed transcript of the in camera proceeding filed simultaneously with his opening brief.
14 Having concluded there was no error as to any of the issues raised by Guthrie, we need not address his claim of cumulative error. 57
to the court and submitted on the preliminary examination transcript. (Id. at p. 70.) The
court found defendant guilty of possession of marijuana as a lesser included offense.
(Ibid.) At the time of the defendant's sentencing, possession of marijuana was punishable
by a term of one to 10 years in prison. The court also had the authority to grant the
defendant probation and require him to serve time in the county jail as a condition of
probation. (Id. at p. 75.) The trial court sentenced the defendant to state prison. (Id. at
p. 70.) After his conviction, but prior to the conclusion of his appeal, the Legislature
amended the Health and Safety Code, authorizing a trial court to reduce a conviction for
possession of marijuana to a misdemeanor, punishable by a term in county jail. (Ibid.)
The court held the amendment should be given retroactive effect pursuant to In re
Estrada (1965) 63 Cal.2d 740. (Francis, supra, 71 Cal.2d at pp. 75-76.) In arguing
against remand, the People noted the trial court rejected the idea of placing the defendant
on probation and to impose county jail time as a condition of probation. (Id. at p. 76.) In
rejecting that contention, the court stated, "the mere fact that the Legislature changed the
offense from a felony to a felony-misdemeanor conceivably might cause a trial court to
impose a county jail term or grant probation in a case where before the amendment the
court denied probation to a defendant eligible therefor and sentenced the defendant to
prison." (Id. at p. 77.)
The Attorney General concedes, and we agree, the same reasoning applies in the
instant case and section 12022.53, subdivision (h) should be applied retroactively.
However, the Attorney General argues remand is not necessary because the record
58
demonstrates the trial court would have sentenced Johnson no differently even if it had
the discretion to strike the firearm use enhancement.
We need not remand the instant matter if the record shows that the superior court
"would not . . . have exercised its discretion to lessen the sentence." (See People v.
Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The People contend the sentence imposed
by the trial court below combined with the court's comments at sentencing show the court
would not have exercised its discretion under section 12022.53, subdivision (h). The
Attorney General points out that the trial court stated that the enhancement, which was
mandatory at that time, "appears to me to be entirely appropriate." The People also point
out that in concluding dismissal of Johnson's prior strike was not appropriate, the court
noted the murder was a sophisticated, planned execution, that Johnson committed the
crime despite having any personal motive to kill Canady, and that Johnson was
previously convicted of murder.
Although the trial court was not sympathetic to Johnson, it is undisputed that the
court had no discretion, at that time, to strike the firearm use enhancement. The
subsequently enacted section 12022.53, subdivision (h) provided the court with that
discretion, greatly modifying the court's sentencing authority. Thus, even with the court's
statements during sentencing, we cannot be certain the court would not have exercised its
new discretion to strike the firearm enhancement. In an abundance of caution, we
remand this matter for resentencing to allow the superior court to consider whether
Johnson's firearm enhancement should be stricken under section 12022.53,
subdivision (h).
59
DISPOSITION
This matter is remanded to allow the superior court to consider whether Johnson's
firearm use enhancement should be stricken under section 12022.53, subdivision (h). In
all other respects, we affirm the judgments.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
60
Filed 7/26/18 CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D071011
Plaintiff and Respondent,
v. (Super. Ct. No. SCD258303)
PETER JOHNSON et al., ORDER CERTIFYING OPINION Defendants and Appellants. FOR PUBLICATION
THE COURT:
The opinion in this case filed June 29, 2018, was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
HUFFMAN, Acting P. J.
Copies to: All parties
2
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' murder convictions, finding no error in the trial court's refusal to instruct on lesser included offenses or its evidentiary rulings, but remanded for the limited purpose of allowing the trial court to exercise its discretion regarding a firearm sentencing enhancement.
Issues
Whether the trial court erred by failing to instruct the jury on lesser included offenses of second degree murder and voluntary manslaughter.
Whether the trial court abused its discretion by admitting evidence of the defendants' illegal entry into the United States.
Whether the trial court erred in denying a motion to suppress statements made after an invocation of the right to counsel.
Whether the trial court abused its discretion by denying a motion to continue the sentencing hearing for additional discovery.
Disposition. Affirmed, and remanded with directions.
Quotations verified verbatim against the opinion
“We conclude these claims lack merit, and accordingly affirm both men's convictions.”
“Thus, we remand the matter for the limited purpose of allowing the trial court to consider whether to strike the firearm sentencing enhancement.”