Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA060900, Zaven V. Sinanian, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General and Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
PROCEDURAL BACKGROUND
On September 27, 2005, an information was filed alleging that appellant Venoy Kelly Black had committed six offenses in relation to Sharon T. on September 14, 2003, and five offenses in relation to Elisa W. on December 1, 2003. Regarding Sharon T., the information charged appellant with kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1) ; count 1), forcible rape (§ 261, subd. (a)(2); count 2), sodomy by use of force (§ 286, subd. (c)(2); count 3), criminal threats (§ 422; count 4), robbery (§ 211; count 5), and possession of a firearm as a felon (§ 12021, subd. (a)(1); count 6). Regarding Elisa W., the information charged appellant with kidnapping for the purpose of carjacking (§ 209.5, subd. (a); count 7), kidnapping to commit rape (§ 209, subd. (b)(1); count 8), carjacking (§ 215, subd. (a); count 9), robbery (§ 211; count 10), and possession of a firearm as a felon (§ 12021, subd. (a)(1); count 11). Under all the counts -- excluding the counts charging possession of a firearm as a felon -- the information alleged that appellant had personally used a firearm (§ 12022.53, subd. (b).) In addition, the information alleged that appellant had served a prior prison term (§ 667.5). Appellant pleaded not guilty to all the counts and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
Trial was by jury. The jury found appellant guilty of making criminal threats (count 4) and possession of a firearm as a felon (count 6) with respect to Sharon T., and guilty of kidnapping for the purpose of carjacking (count 7), carjacking (count 9), robbery (count 10), and possession of a firearm as a felon (count 11) with respect to Elisa W. In addition, the jury found true the firearm use allegations asserted in connection with the crimes against Elisa W. A mistrial was declared with respect to the remaining counts. The trial court sentenced appellant to a total term of life plus 27 years in prison.
FACTUAL BACKGROUND
A. Prosecution Evidence
1. Crimes Regarding Sharon T.
Sharon T. testified as follows: Between 5:30 and 6:00 a.m. on September 14, 2003, she was at a bus stop in Glendale. Appellant drove past the bus stop three times, stopped his car in front of her, and asked whether she wanted a ride. Sharon was late for work and accepted his offer. After Sharon got into the car, he stroked her hair and told her that she was beautiful. He entered a freeway, drove past her exit, and left the freeway. As he drove slowly on surface streets, he warned her not to try to escape, and displayed an ice pick or blade. He said that he would not go to jail for raping her, and that he would murder her if she “didn’t settle down.”
Sharon further testified that appellant stopped the car in a back alley, and raped and sodomized her. During the assault, a gun fell from his clothing, and he placed it under the car’s seat. After the rape, he blindfolded her, and drove her to an apartment, where he directed her to wash herself. He then drove her to her workplace in Burbank. When he dropped her off, he took her identification from her purse, and told her that he would find her if she said anything. After he left her, she reported the incident to her employer, who summoned the police.
Steve Renteria, a D.N.A. expert employed by the Los Angeles County Sheriff’s Department, testified that the D.N.A. profile in samples obtained from Sharon’s vagina and rectal area matched appellant’s profile.
2. Crimes Regarding Elisa W.
Elisa W. testified as follows: At 7:30 p.m. on December 1, 2003, she drove her Nissan SUV to her apartment in the San Fernando Valley. Immediately after she parked the vehicle, appellant approached her, wearing a tight stocking cap on his head. He pointed a gun at her face, and said, “Don’t panic. I just want your money.” She handed her purse to him and responded, “I have no money, but you can have my purse.” Appellant then told her to slide over to the SUV’s passenger seat, and he sat upon the driver’s seat.
Elisa further testified that appellant drove the SUV to a freeway, and eventually exited the 118 Freeway into a residential area. As he drove, he said that Elisa was attractive, told her to pretend that they were boyfriend and girlfriend, and asked her whether she had ever had a black boyfriend; in addition, he massaged her neck and held her right hand in his lap. He used Elisa’s cellphone to make calls, and Elisa overheard him say, “We are just like five minutes away. Don’t touch anything. Put your gloves on.” Appellant then asked her to duck below the dashboard. When he slowed the SUV to make a left turn, Elisa opened the passenger door, jumped out, and ran down the street. She obtained help from the driver of a car, who drove her to a police station.
California Highway Patrol (CHP) officer Justin Snider testified that at 8:30 p.m. on December 19, 2003, he was driving on the 14 Freeway. As he began to stop a speeding sedan, he was overtaken by a Nissan SUV driven by appellant, which was also speeding. Aside from appellant, the SUV held an African-American male and two children. Snider halted both the sedan and appellant’s SUV. According to Snider, appellant’s hair was braided in “corn rows.” Snider questioned appellant, and noticed that the name appellant offered differed from the SUV’s registration. When Snider returned to his patrol car, appellant drove away. Snider unsuccessfully tried to follow the SUV, which he learned had been stolen.
There was testimony from Los Angeles Police Department (LAPD) officers that Elisa’s SUV was located in a restaurant parking lot on December 22, 2003. Appellant’s palm prints were found on the SUV, and numerous photos of appellant were discovered inside it.
LAPD officers Ryan Verna and Jaime Brien testified that at approximately 1:00 a.m. on December 31, 2003, they were driving on Van Nuys Boulevard, when they found appellant asleep in an apparently disabled 1982 Oldsmobile. After appellant got out of the vehicle, he provided a false name. Verna patted him down, and felt what appeared to be a gun in appellant’s jacket. As Verna pulled on appellant’s jacket, appellant slipped out of it and ran toward Verna and Brian’s police car, whose engine was running. Appellant entered the police car, where Verna and Brien subdued him. Verna then found an unloaded semi-automatic handgun in appellant’s jacket pocket.
B. Defense Evidence
Richard Taylor, a barber, testified that in November 2003, he cut appellant’s hair in a style too short to permit corn rows.
Appellant testified on his own behalf. According to appellant, he offered a car ride to Sharon T. on September 14, 2003, had consensual sex with her at his condominium, and then drove her to her place of employment. He denied that he possessed a gun when he picked up Sharon, or that he forced her to engage in sex by displaying an ice pick or gun.
Appellant also denied that he had any contact with Elisa W. on December 1, 2003, or with CHP officer Snider on December 19, 2003. He testified that in December 2003, he saw a vehicle resembling Elisa’s SUV in the possession of Robert Doris, with whom he sometimes socialized. Appellant also left some personal belongings, including several photographs, in another vehicle belonging to Doris. Appellant asserted that his hair was not in corn rows in December 2003.
DISCUSSION
Appellant contends that the trial court erred in (1) terminating his right to self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta), (2) failing to declare a mistrial after the jury announced that it was deadlocked, and (3) imposing the sentence.
A. Faretta
Appellant contends that the trial court improperly terminated his self-representation at a pre-trial proceeding. We disagree.
1. Governing Principles
In Faretta, the United States Supreme Court held that a defendant in a criminal case “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Faretta, supra, 422 U.S. at p. 807, italics deleted.) Generally, “[t]he right to counsel persists unless the defendant affirmatively waives that right.” (People v. Marshall (1997) 15 Cal.4th 1, 20.) Nonetheless, as our Supreme Court explained in People v. Carson (2005) 35 Cal.4th 1, the right to self-representation is “‘not a license to abuse the dignity of the courtroom,’” and may be revoked due to misconduct that “seriously threaten[s] the core integrity of the trial.” (Id., at pp. 8-11, 13, quoting Faretta, supra, 422 U.S. at p. 834, fn. 46.) This misconduct includes out-of-court activity, including obstructionist tactics and witness intimidation. (Carson, supra, 35 Cal.4th at p. 9.)
The court in Carson stated: “When determining whether termination is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings. One consideration is the availability and suitability of alternative sanctions. [Citation.] Misconduct that is more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial may not justify complete withdrawal of the defendant’s right of self-representation. [Citations.] The court should also consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status. [Citations.] . . . [¶] Additionally, the trial court may assess whether the defendant has ‘intentionally sought to disrupt and delay his trial.’ [Citations.] In many instances, such a purpose will suffice to order termination; but we do not hold that an intent to disrupt is a necessary condition. . . . Ultimately, the relevance inheres in the effect of the misconduct on the trial proceedings, not the defendant’s purpose.” (Carson, supra, 35 Cal.4th at p. 10.) The decision to terminate self-representation is reviewed for an abuse of discretion. (Id. at p. 12.)
As the court in Carson recognized, out-of-court misconduct, unlike in-court misconduct, is rarely memorialized for the purposes of appellate review absent special procedures. (Carson, supra, 35 Cal.4th at p. 11.) Accordingly, when the termination of self-representation hinges on out-of-court misconduct, the trial court must “document its decision . . . with some evidence reasonably supporting a finding that the defendant’s obstructive behavior seriously threatens the core integrity of the trial. Unsubstantiated representations, even by the prosecutor, much less rumor, speculation, or innuendo, will not suffice. [Citations.] To this end, the court may need to hold a hearing or may want to solicit the parties’ respective arguments with written points and authorities and any evidentiary support on which they may seek to rely.” (Ibid.) The appropriate procedure for making a record is also consigned to the trial court’s discretion. (Ibid.)
2. Underlying Proceedings
Following appellant’s arrest on December 31, 2003, charges regarding Elisa W. were filed against him in Van Nuys (Los Angeles Superior Court Case No. LA044696). Appellant was permitted to represent himself in October 2004. On February 24, 2005, Judge Martin Herscovitz found that appellant had been “playing games with the court” in a manner “disruptive to the court process” by willfully failing to bring certain property to the court and then “saying he can’t go forward with the case because he doesn’t have his property.” Judge Herscovitz told appellant: “[W]e wasted now two full days of court time where this court could not do other cases, where it set aside time to do your case . . . . And the court finds the deputies have testified truthfully and the property was there for your taking to court and you willfully refused to take it to court. . . . If you continue playing these games, your pro per status is in jeopardy. . . . If you don’t bring your property, . . . then you’re disrupting the court process, and this court will have to take away your right . . . . Am I making myself clear?” Appellant responded: “Yes.”
In March 2005, the charges regarding Elisa W. were dismissed at the request of the prosecutor, who refiled them in the underlying case (Los Angeles County Superior Court Case No. GA060900), which also involves the charges regarding Sharon T. Appellant was again accorded leave to represent himself. On March 23, 2005, Commissioner Steven Lubell conducted a hearing into allegations that appellant had abused his telephone privileges as a pro per litigant to arrange a “hit.” Following the hearing, Commissioner Lubell declined to revoke appellant’s status as a pro per litigant, but limited his phone calls to communications with his investigator.
On March 29, 2005, the prosecutor exercised a challenge to Commissioner Lubell under Code of Civil Procedure section 170.6, and the case was transferred to Judge Zaren V. Sinanian. When appellant complained that he had been denied access to the jail law library, Judge Sinanian reaffirmed the order according appellant pro per status, which was sent to the jail. Appellant repeated his complaint at a hearing on April 7, 2005.
When the parties appeared for the preliminary hearing on May 6, 2005, appellant said he was unable to proceed because he had been denied access to the jail law library. He requested that the charges against him be dismissed, and asserted that he had “12 of Lee Baca’s cronies on call . . . for dismissal.” Judge Sinanian declined to conduct a hearing at that time on appellant’s contentions regarding his access to the jail law library, and instead decided to reaffirm appellant’s pro per status to the jail authorities and grant appellant a continuance to prepare for the preliminary hearing. He scheduled a hearing for May 24, 2005 to set the date for the preliminary hearing, and asked Philip Wojdak, the prosecutor, to contact the Los Angeles County Sheriff’s Department and inquire about appellant’s access to the jail law library. When Judge Sinanian asked Wojdak whether he wanted a hearing into appellant’s library access, Wojdak replied: “Having not done any investigation, I really don’t know.” Nonetheless, after appellant again invited Judge Sinanian to call his witnesses for an immediate hearing (“today”) on his library access, Judge Sinanian responded: “We’re going to do that on the next court date.” Later in the hearing, appellant asked Judge Sinanian to restore his phone privileges, but he declined to do so.
On May 24, 2005, Wojdak presented testimony from Los Angeles County deputy sheriff Larry Scott, who is responsible for pro per jail inmates. Scott testified that appellant had been placed in a group of inmates who are entitled to go to the library but have restricted phone privileges. According to Scott, since March 23, 2005, appellant had been entitled to go to the library on a daily basis, with the exception of the most recent two-week period, during which the library was closed for renovations. Scott testified that after March 23, 2005, appellant had not filed a complaint with him regarding a denial of library access, despite the fact that this was the “normal procedure that a pro per would use if he was being denied access to the law library.” Scott further testified that appellant was familiar with the complaint procedure, as he had filed a complaint six months earlier alleging a denial of access to the training room to watch a videotape. Scott was unaware whether appellant had exercised his right to go the library.
During appellant’s cross-examination of Scott, appellant asked him to examine jail library attendance records for the period from February 26, 2005 to March 24, 2005. In response to appellant’s questions, Scott testified that the records showed that appellant had been in the library on March 24, 2005. At appellant’s request, Judge Sinanian admitted the library attendance records.
Following Scott’s testimony, appellant tendered a subpoena for the appearance of 12 deputy sheriffs, which appellant had apparently presented to Wojdak at the beginning of the hearing. Deputy county counsel Victor Wright, who was assisting Wojdak, argued that issuing the subpoena would be improper under rule 6.41 of the Los Angeles County Superior Court Rules (rule 6.41), which requires pro per criminal defendants to submit a confidential offer of proof to the trial court before a subpoena is issued for the appearance of jail employees.
Rule 6.41(b)(2) of Los Angeles County Superior Court Rules provides in pertinent part: “Subpoena Power. The Defendant may use the subpoena power of the court to compel the attendance of witnesses. The Sheriff shall furnish subpoena forms for use by Pro Per inmates. Pro Per defendants may not subpoena individuals to annoy, embarrass, or harass any witness. . . . [¶] Prior to issuing any subpoena for jail personnel, witnesses in the custody of the Sheriff or other governmental agencies, or such other witnesses as the court may designate, the defendant shall furnish a confidential offer of proof as to the anticipated testimony to the court in camera. This offer of proof shall set forth the anticipated testimony of the witness and explain how the testimony is relevant to the issues pending before the court.”
When Judge Sinanian asked whether appellant had any witnesses, he answered: “From our last court appearance I understand you said there wouldn’t be any need to subpoena. Why you have left that up to Mr. Wojdak to contact [the] Los Angeles [County] Sheriff’s Department. So in that matter I didn’t subpoena nobody plus now with this new rule, 6.41, I understand I would have to go through -- show proof, which I’m more than willing to do if the court allows me and I have other evidence to show. Do that in camera no problem. I would clearly show a proof of good cause.” (Italics added.) Judge Sinanian denied this request.
Following the presentation of evidence, Judge Sinanian noted that the attendance records showed that appellant had gone to the library on March 24, 2005, and the evidence otherwise indicated only that appellant had adequate access to the library. Judge Sinanian said to appellant: “[I]t’s my job to assess whether you are acting in a manner that’s intentional and disruptive and causing delay of the court proceedings. . . . It appears to me that your behavior may be inappropriate in that you’re misleading the court about . . . not getting access to the library. That’s the take I have right now. So what I’m going to do is I’m going to give you a warning --.”
Before Judge Sinanian could issue the warning, Wojdak asked to be heard. He pointed out that a transcript of the February 24, 2005 hearing before Judge Herscovitz was in the court file, and read a portion of the transcript in which Judge Herscovitz warned appellant that further dilatory conduct would jeopardize appellant’s pro per status. In addition, Wojdak reminded Judge Sinanian that Commissioner Lubell had curtailed appellant’s phone privileges for abusive conduct. Wojdak stated: “I believe that [appellant’s] conduct is well beyond the [pale] as to how a pro per should be conducting himself. . . . . [¶] I understand that it’s a huge thing to revoke somebody’s right to represent himself, but this is an extreme record in this case, and I’d ask you to seriously consider whether that wouldn’t be warranted . . . .”
Following argument from appellant on the issue of sanctions, Judge Sinanian stated he had considered all the relevant factors and alternative sanctions. After reciting appellant’s history of misconduct, as set forth by Judge Herscovitz and Commissioner Lubell, and finding that appellant had not been denied library access, Judge Sinanian terminated appellant’s self-representation, concluding that his actions were “intentionally designed to disrupt and delay the preliminary hearing,” and that appellant’s conduct as a pro per litigant had made proceedings in the action “impossible.”
After Judge Sinanian terminated appellant’s status as a pro per litigant, his court-appointed counsel filed a motion to restore to appellant’s status. Following a review of the record and the transcript of the May 24, 2005 hearing, Judge Janice Croft denied the motion.
3. Analysis
Appellant contends that Judge Sinanian denied him due process in terminating his self-representation, and that this decision constitutes an abuse of discretion. In addition, he contends that Wojdak engaged in prosecutorial misconduct by requesting that Judge Sinanian consider revoking appellant’s pro per status.
a. Due Process
We begin with appellant’s contentions regarding due process. Due process, “although not subject to precise definition [citation], requires notice and an opportunity to be heard.” (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) Appellant argues (1) that he received insufficient notice that his pro per status could be terminated, and (2) that he was denied an opportunity to present evidence pertinent to this question. As we explain below, he is mistaken.
Regarding item (1), appellant contends that he was entitled to express notice that his conduct -- including his conduct at the May 24, 2005 hearing -- might warrant the revocation of his pro per status, and to a separate hearing on this matter. Although no case has squarely addressed this contention, several courts have held that the trial court properly terminated a defendant’s self-representation at the same hearing at which the defendant misbehaved, when the defendant knew his misconduct could have that result. (El v. Lamarque (C.D.Cal. 2003) 293 F.Supp.2d 1107, 1113-1115 [no due process violation when trial court effectively revoked defendant’s self-representation by ordering him from courtroom after repeated obstructionist conduct during trial]; People v. Fitzpatrick (1998) 66 Cal.App.4th 86, 91-93 [trial court properly terminated defendant’s pro per status when he requested a continuance of trial after repeatedly delaying trial]; People v. Rudd (1998) 63 Cal.App.4th 620, 625, 631-633 [trial court properly revoked defendant’s pro per status on first day of trial when defendant was not ready to proceed, despite prior warnings that he must be prepared for trial on that day].) In view of this authority, Judge Sinanian was not obliged to set a separate hearing on appellant’s self-representation, and give appellant notice of this hearing. Judge Herscovitz had already warned appellant that dilatory tactics would jeopardize his pro per status, and thus appellant knew his conduct at the May 24, 2006 hearing could result in the termination of his self-representation.
Appellant’s reliance on Carson, supra, 35 Cal.4th 1 and Wilson v. Superior Court (1978) 21 Cal.3d 816 (Wilson) is misplaced, as these cases are factually distinguishable. In Carson, the defendant, who had been charged with murder, obtained an unredacted copy of the investigating officer’s “murder book,” which contained the addresses of witnesses. (Carson, supra, 35 Cal.4th at pp. 12-13.) As a result, the trial court revoked the defendant’s pro per status at a subsequent proceeding. (Ibid.) The court in Carson concluded that the record of this proceeding was inadequate for appellate review of the ruling, and remanded the matter for a new hearing. (Ibid.)
Unlike Carson, the record of the May 24, 2005 hearing documents appellant’s misconduct before Judge Sinanian -- namely, his failure to present any evidence that he had been denied access to the law library, despite a 20-day period to assemble evidence -- and establishes that appellant had been warned about dilatory tactics and had his phone privileges restricted. It also discloses that Judge Sinanian accorded appellant ample opportunity to be heard on the revocation of self-representation, and considered the relevant factors before terminating his pro per status. We conclude that the record before us is sufficient for a review of this decision. (See Carson, supra, 35 Cal.4th at pp. 11-12.)
In Carson, the court explained: “[A] record should answer several important questions. Most critically, a reviewing court will need to know the precise misconduct on which the trial court based the decision to terminate. [Citation.] The court should also explain how the misconduct threatened to impair the core integrity of the trial. Did the court also rely on antecedent misconduct and, if so, what and why? Did any of the misconduct occur while the defendant was represented by counsel? If so, what is the relation to the defendant’s self-representation? Additionally, was the defendant warned such misconduct might forfeit his Faretta rights? Were other sanctions available? If so, why were they inadequate? In most cases, no one consideration will be dispositive; rather, the totality of the circumstances should inform the court’s exercise of its discretion.” (Carson, supra, 35 Cal.4th at p. 11.) The record before us adequately addresses these questions, to the extent they are applicable here.
In Wilson, the defendant, who was proceeding in propria persona, was involved in a jailhouse “fracas.” (Wilson, supra, 21 Cal.3d at p. 820.) To sanction the defendant and restore jail security, the sheriff’s department unilaterally restricted the defendant’s movement in a manner that limited his access to the jail law library and his investigator. (Id. at pp. 821-827.) Our Supreme Court concluded that before the sheriff’s department could impose these restrictions, the defendant was entitled to a hearing and an opportunity to be heard on the matter. (Id. at pp. 827-828.) Here, unlike Wilson, appellant had prior notice that dilatory tactics could result in the revocation of his pro per status; moreover, before terminating this status, Judge Sinanian accorded appellant a hearing at which -- as we elaborate below -- he was accorded sufficient opportunity to present evidence bearing on the matter.
Regarding item (2), appellant does not dispute that Judge Sinanian had adequate evidence of the warning by Judge Herscovitz and the ruling by Commissioner Lubell. He contends that Judge Sinanian denied him due process by declining to hear testimony from the deputy sheriffs listed on his subpoena. The crux of his argument is that without this testimony, Judge Sinanian could not properly find that appellant’s allegations about his library access constituted dilatory conduct.
We conclude that Judge Sinanian did not err on these matters. On May 6, 2005, he set a hearing on appellant’s allegations, asked Wojdak to investigate them, and told appellant that he would hear testimony from appellant’s witnesses at that hearing. At the hearing on May 24, 2005, appellant’s evidence showed only that he had visited the library on March 24, 2005 and was otherwise irrelevant to his allegations. Appellant’s sole effort to secure witnesses was to present a subpoena to Wojdak at the beginning of the hearing. Moments later, he conceded that he had “subpoena[ed] nobody” for the hearing. To explain why he had no witnesses, he falsely asserted that Judge Sinanian had directed Wojdak to provide the witnesses necessary to resolve his allegations.
Even if the subpoena had complied with rule 6.41, securing the presence of appellant’s witnesses would in all likelihood have required a continuance of the proceedings. It thus appears that appellant had always intended to delay the hearing, notwithstanding his offer to cure the subpoena’s deficiencies under rule 6.41 through an offer of proof. Because appellant had no evidence to support his allegations and no credible explanation for his failure to provide this evidence by the hearing date, Judge Sinanian was entitled to conclude that appellant was engaged in dilatory tactics that warranted rejecting his offer of proof and any further continuance.
b. Abuse of Discretion
Appellant contends that Judge Sinanian abused his discretion in revoking appellant’s self-representation. We disagree. “[U]nder the abuse of discretion test, we defer to the decision of the lower tribunal ‘except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Jackson (1992) 10 Cal.App.4th 13, 19, quoting People v. Jordan (1986) 42 Cal.3d 308, 316, italics omitted.) Appellant does not dispute that Judge Herscovitz warned him about dilatory tactics or that Commissioner Lubell curtailed his phone privileges; moreover, as we have explained, Judge Sinanian had before him compelling evidence that appellant had engaged in dilatory tactics prior the hearing. In view of appellant’s continuing obstructionist and abusive conduct despite Judge Herscovitz’s warning and Commissioner Lubell’s ruling, we see no abuse of discretion.
Appellant suggests that Judge Sinanian improperly relied upon Wojdak’s unsworn representations regarding Judge Herscovitz’s warning and Commissioner Lubell’s ruling. However, the record establishes (1) that the court file before Judge Sinanian at the May 24, 2005 hearing contained records of Judge Herscovitz’s warning, and (2) that appellant acknowledged Commissioner Lubell’s ruling to Judge Sinanian at hearings on May 6, 2005 and May 24, 2005.
c. Prosecutorial Misconduct
Appellant contends that Wojdak acted improperly by pointing out appellant’s prior misconduct to Judge Sinanian and asking him to consider revoking appellant’s pro per status. Generally, “‘[p]rosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.]’” (People v. Haskett (1982) 30 Cal.3d 841, 866.)
We find guidance on this contention in Carson. There, the prosecutor argued that the defendant’s self-representation should be revoked. (Carson, supra, 35 Cal.4th at p. 13.) Our Supreme Court remarked: “As with in-court misconduct, the proceeding to consider termination of the defendant’s Faretta rights for out-of-court acts should not be the subject of a ‘motion’ by the People, and we caution prosecutors not to overstep their proper role. [Citation.] While the prosecutor can and should inform the court of any instances of misconduct along with relevant evidentiary substantiation, it is the court’s responsibility to determine the appropriate sanction or other remedial action. In this regard, the prosecutor should serve as an adjunct of the court in discharging its duty to control the orderliness and integrity of the proceedings, not as an advocate for a particular result.” (Id. at p. 11, fn. 1.) The court added that prosecutors “‘should always be acutely aware that violation of the right of self-representation is reversible per se.’” (Ibid, quoting People v. Dent (2003) 30 Cal.4th 213, 222, fn. 2.)
In view of Carson, Wojdak properly brought appellant’s misconduct to the attention of Judge Sinanian, who had undertaken responsibility for the case after the misconduct. Furthermore, assuming -- without deciding -- that Wojdak strayed into error by requesting that Judge Sinanian “seriously consider” revoking appellant’s pro per status, we conclude that this misconduct is harmless. Generally, prosecutorial misconduct is examined for prejudice under the test in People v. Watson (1956) 46 Cal.2d 818, 836, unless it requires assessment under the more stringent beyond-a-reasonable-doubt test for federal constitutional error found in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Herring (1993) 20 Cal.App.4th 1066, 1077.) Because the Carson court did not hold that the prosecutor’s request for the revocation of the defendant’s pro per status was per se error mandating reversal of the judgment, we conclude that misconduct of this sort is subject to harmless error analysis. (See Carson, supra, 35 Cal.4th at pp. 13-14.)
In our view, Wojdak’s request was not prejudicial, regardless of the applicable test. When appellant objected that Wojdak was permitted only a “limited role” in the revocation of his pro per status, Judge Sinanian replied: “That’s correct. That’s why I’m taking the role at this time, and I’m terminating your status.” Because Judge Sinanian was aware that only he could initiate the termination of appellant’s status, there is no reasonable doubt that he would have done so even if Wojdak had not urged him to consider this action. We therefore conclude that any error here is harmless.
Appellant also suggests that Wojdak improperly asked Commissioner Lubell to terminate his pro per status. Because the record before us does not disclose any such request by Wojdak, this contention fails for want of an adequate record. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, pp. 394-396 & 2007 supp.) Moreover, any such request would be harmless because Commissioner Lubell did not revoke appellant’s self-representation.
B. Mistrial
Appellant contends that the trial court erred in failing to declare a mistrial as to count 4 -- which charged that appellant had made criminal threats to Sharon W. -- when it learned that the jury was deadlocked regarding this count. He also contends that the trial court gave a coercive instruction when it asked the jury to continue its deliberations regarding this count.
1. Governing Principles
“Section 1140 provides: ‘Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.’ [¶] The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment ‘in favor of considerations of compromise and expediency.’ [Ctiation.]” (People v. Breaux (1991) 1 Cal.4th 281, 318-319.)
2. Underlying Proceedings
The jury began its deliberations on Thursday, October 19, 2006. The next day, the jury submitted several questions, which Judge Sinanian answered, and then asked what it should do if it could not unanimously agree on some counts. Before counsel could be summoned to the courtroom, the jury requested a readback of a portion of Sharon W.’s testimony. After consulting with counsel, Judge Sinanian ordered the readback, and the jury resumed its deliberations.
The following Monday, Judge Michael Mink presided in place of Judge Sinanian. At 9:55 a.m., the jury informed Judge Mink that it was unable to reach verdicts on all counts, and again requested guidance about how it should proceed. Judge Mink told counsel that in such situations, he tried to determine “what the numbers are, but not which direction,” and whether additional readbacks, instructions, or argument would be helpful.
In open court, Judge Mink questioned Juror No. 1, the jury foreperson, about the status of deliberations. The following colloquy occurred:
“The Court: And do you think any readbacks of testimony would be helpful in your deliberation process?
“Juror No. 1: We’ve attempted that in a specific area . . . that [the witnesses] testified to. We have covered that and we have addressed that, so we are back to where we were last week.
“The Court: I know this is not my case, but I understand there are a number of different charges in this case and the trial went on for a couple [of] weeks. Do you feel the jury has sufficiently discussed each of these counts you have not reached a decision on?
“Juror No. 1: We have 11 counts. We have reviewed each count and taken votes at least five or six times on these issues that are still up in the air.” Judge Mink then asked the foreperson to identify the counts and the distribution of votes, without indicating their direction. Juror No. 1 responded: “. . . Count One, nine-three. Count Two, ten-two. Count Three, ten-two. Count Four, eleven-one. Count Five, nine-three. Count Eight, nine-three.”
When Judge Mink asked whether the jury would find additional argument from counsel helpful, the jury foreperson answered: “. . . I think it’s not so much the testimony that we have heard so far or the evidence or the exhibits that have been presented. It’s about credibility, just basic credibility, core credibility of the people that testified.” In response to questions that Judge Mink aimed directly at the jurors, they indicated that credibility was the main issue, and that further deliberations and readback would not be helpful. The foreperson opined that the jury was “hopelessly deadlocked.” Judge Mink then asked, “You have one count that is eleven-one. Now, again, I don’t want to know which [direction the vote runs], but is that also just a credibility issue?” The foreperson responded, “Yes, basically credibility.”
Out of the jury’s presence, defense counsel and Wojdak speculated that the jury was divided about Sharon W.’s credibility. When defense counsel asked for a mistrial, Wojdak contended that the jurors should be allowed “a couple of hours just to hash it around some more,” arguing that the variation in the vote from count to count reflected the possibility that the jurors found Sharon W. more credible on some matters than on others. Judge Mink decided to ask the jury to continue its deliberations until he returned from instructing a jury that had been waiting in his own courtroom.
Judge Mink told the jury: “Ladies and gentlemen, I am going to go back and instruct my jury and do closing argument. I am going to come back here before 12:00. I am going to ask you to deliberate until that time and try to reach a verdict on those counts. If nothing has changed when I come back here, then I’ll probably declare a mistrial as to those counts. But while I am over there working I want you to try and -- you know, it is only dealing with those counts. You’ve got your other verdicts. Try the eleven-one, ten-two. Obviously, everyone has a right to their own opinion. That is the jury system, but discuss the issues of credibility a little more. Take a look at the jury instructions on credibility. [¶] I realize from speaking with counsel that the credibility [issue] probably goes to one particular person. That is a guess, and I’m not asking you to confirm or not confirm. So I want you to go back, spend about another hour to an hour and 20 minutes, and I’ll be back. If you haven’t reached a verdict we’ll -- you are going to be out at noon, but I want you to give it a real effort to try to resolve as many of these counts as you can. If you can’t, you can’t. Do your best. It was a long trial, a lot of . . . time was spent, so I would like you to spend another hour, hour and a half. If you can’t reach a verdict, then we’ll deal with it at that point.” (Italics added.)
At 11:59 a.m., the jury announced that they had reached a verdict with respect to count 4, but remained deadlocked as to the other counts. Judge Mink then declared a mistrial regarding those counts.
3. Analysis
Appellant contends that Judge Mink abused his discretion in asking the jury to continue its deliberations after determining that the jurors believed themselves to be deadlocked. We disagree. In People v. Sandoval (1992) 4 Cal.4th 155, 194-196, the court rejected a similar contention on facts closely resembling those before us. There, the jury began its deliberations during the penalty phase of trial on a Thursday, and announced the following Wednesday that it was deadlocked regarding the appropriate penalties. (Id. at p. 195.) After determining that the jury was evenly split on each of the counts, the trial court asked the jury to deliberate a little longer, and stated that it would probably declare a mistrial if no verdict was reached on the next day. (Ibid.) The jury reached unanimous verdicts Thursday morning. (Ibid.) The court in Sandoval concluded that the trial court had not erred in asking the jury to continue deliberations despite the announcement that it was deadlocked. (Id. at p. 196.) We reach the same conclusion here. (See also People v. Rodriguez (1986) 42 Cal.3d 730, 774-777 [trial court did not err in requesting jury to continue deliberations despite its repeated declarations of an impasse, given complexity of trial evidence].)
Appellant also contends that Judge Mink’s remarks to the jury were coercive because he described the source of the vote on count four -- the “eleven-one” -- as “just a credibility issue,” and suggested that the jury focus on the counts that seemed closest to resolution. He argues that Judge Mink’s remarks isolated the jurors who had voted against the majority on these counts, and thereby encouraged them to sacrifice their independent judgment.
Our Supreme Court confronted similar contentions in People v. Bell (2007) 40 Cal.4th 582 (Bell) and People v. Cook (2006) 39 Cal.4th 566 (Cook). In Bell, the jury sent a note to the trial court on the second day of its deliberations stating that it was unable to reach a verdict because one juror could not find the defendant guilty. (Bell, supra, 40 Cal.4th at p. 613.) Pointing to the complexity of the evidence, the trial court requested the jury to resume deliberations, remarking, “Reasonable people could disagree.” (Ibid.) The court in Bell rejected the contention that the trial court had improperly asked the jury to resume its deliberations after learning about the single holdout juror, reasoning that its remarks to the jury were “not of a character that would expressly or impliedly coerce a verdict.” (Id. at p. 617.)
Again, in Cook, the jury reported that it was deadlocked after a day and a half of deliberations due to a single holdout juror. (Cook, supra, 39 Cal.4th at p. 615.) The trial court denied a motion for a mistrial and instructed the jury to continue deliberating at least for the afternoon, telling the jurors to “‘try your best,’” and adding, “‘if you can’t [reach a verdict], you can’t.’” (Ibid.) The court in Cook concluded that nothing in the record suggested “judicial coercion of the holdout juror.” (Ibid.)
Here, as in Bell and Cook, the trial court’s remarks cannot reasonably be regarded as coercive. Viewed in context, Judge Mink’s inquiry as to whether the source of the divided vote on count four was “just a credibility issue” was intended to elicit the need for further argument or instructions. Moreover, in admonishing the jury, he told the jurors that the renewed deliberations would last only a short period, affirmed that they were entitled to their opinions, and added, “If you can’t [reach a verdict], you can’t.” There was no error.
Pointing to People v. Hinton (2004) 121 Cal.App.4th 655 (Hinton) and Jiminez v. Myers (9th Cir. 1994) 40 F.3d 976 (Jiminez), appellant contends that Judge Mink, in asking the jury to continue its deliberations, was obliged to give CALCRIM No. 3550 or CALJIC No. 17.40, which direct jurors not to shift their opinions solely to follow the majority. We disagree. Although our Supreme Court has approved such instructions in some circumstances (see People v. Sheldon (1989) 48 Cal.3d 935, 958-959), it has also approved other admonitions that do not incorporate them (e.g. Bell, supra, 40 Cal.4th at p. 613; People v. Rich (1988) 45 Cal.3d 1036, 1116-1117). Moreover, Hinton and Jiminez are factually inapposite. In each case, the trial court unmistakably encouraged holdout jurors to follow the majority, and the appellate court concluded that the trial court’s failure to tailor its remarks to reflect CALCRIM No. 3550 and CALJIC No. 17.40 was error. (Hinton, supra, 121 Cal.App.4th at pp. 657-659, 661-662; Jiminez, supra, 40 F.3d at pp. 980-981 & fn. 5.) As we have indicated, Judge Mink’s remarks do not conflict with these instructions.
CALCRIM No. 3550 states in pertinent part: “Do not hesitate to change your mind if you become convinced that you are wrong. But do not change your mind just because other jurors disagree with you.”
C. Sentencing
Appellant contends that his sentence contravenes section 654 and the Sixth Amendment of the United States Constitution. In sentencing appellant, the trial court dismissed the carjacking charge (count 9) as a lesser included offense of kidnapping for the purpose of carjacking (count 7), and sentenced appellant to life imprisonment for the latter offense, plus an additional and consecutive term of 10 years for the accompanying firearm use enhancement under section 12022.53, subdivision (b). For purposes of the counts carrying determinate sentences, the trial court selected the conviction for robbery (count 10) as providing the base term, and imposed the high term for robbery and the accompanying firearm use enhancement under section 12022.53, subdivision (b), resulting in a total base term of 15 years. As to the remaining counts (counts 4, 6, and 11), the trial court imposed consecutive sentences of one-third of the middle term, resulting in a total sentence of life plus 27 years. In addition, at the prosecutor’s request, the trial court resentenced appellant in Los Angeles County Superior Court Case No. PA046148-01, in which he had suffered convictions for possession of a firearm as a felon and resisting a police officer arising out of his arrest on December 31, 2003. The trial court imposed an additional consecutive term of one year and eight months for his convictions in that case.
1. Section 654
Appellant contends that the trial court violated section 654 in imposing the sentence. As explained below, we disagree. Subdivision (a) of section 654 prohibits multiple punishment for “[a]n act or omission that is punishable in different ways by different provisions of law . . . .” However, multiple punishment is proper if the defendant pursues suitably independent criminal objectives. (People v. Williams (1992) 9 Cal.App.4th 1465, 1473-1474.) “Whether the defendant held ‘multiple criminal objectives is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.’ [Citations.]” (People v. Galvan (1986) 187 Cal.App.3d 1205, 1218.)
a. Robbery and Kidnapping for the Purpose of Carjacking
Appellant contends that he was improperly subjected to multiple punishment for robbing Elisa W. (count 10) and kidnapping for the purpose of carjacking her SUV (count 7) because these offenses formed an indivisible series of events. The trial court concluded that section 654 did not bar separate punishment for these offenses, reasoning that appellant’s intent in committing each offense was different.
“‘“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.”’ [Citation.] However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]” (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.)
The crux of appellant’s contention is that the robbery and kidnapping served a single purpose, namely, the taking of Elisa W.’s property, including her purse and SUV. In support of this contention, appellant points to People v. Bauer (1969) 1 Cal.3d 368, 371-372 (Bauer) and People v. Dominguez (1995) 38 Cal.App.4th 410 (Domiquez). In Bauer, the defendant and an accomplice entered a home, tied up its occupants, stole several household items, and then fled in a car owned by one of the occupants. After the jury found the defendant guilty of robbery and car theft, the trial court imposed a separate punishment for each offense. (Id. at pp. 371-372, 375.) The court in Bauer concluded that section 654 barred multiple punishments, reasoning that “the theft of several articles at the same time constitutes but one offense.” (Id. at p. 378.)
Appellant also directs us to People v. Smith (1945) 26 Cal.2d 854, People v. Ortega (1998) 19 Cal.4th 686, overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, and People v. Brito (1991) 232 Cal.App.3d 316, which do not address the application of section 654, and thus are not relevant authority.
Subsequently, in Dominguez, the defendant approached the victim’s parked van, pointed a gun at the victim, and said, “‘“Give me everything you have.”’” (Domiquez, supra, 38 Cal.App.4th at p. 414.) After the victim handed over his personal belongings, the defendant drove away in the van. (Id. at pp. 414-415.) Citing Bauer, the court held that section 654 precluded separate punishments for the defendant’s convictions for robbery and carjacking. (Id. at pp. 416-420.)
At least two courts have concluded that Bauer does not impose an absolute bar on multiple punishments for a series of robbery-related offenses. In People v. Porter (1987) 194 Cal.App.3d 34, 37-39 (Porter), the defendant and an accomplice entered the victim’s car and stole his wallet. (Id. at p. 36.) After discovering what they believed was an ATM card in the wallet, they forced the victim to drive to a bank and remove cash from his account. (Id. at pp. 36-37.) The court in Porter concluded that section 654 did not bar separate punishments for robbery and kidnapping for the purposes of robbery, reasoning that the defendant had originally intended to steal only the victim’s wallet, and only conceived the plan to kidnap the victim to steal cash from his bank account upon discovering what they believed to be an ATM card. (Porter, supra, at p. 38.) In so concluding, it distinguished Bauer, which had involved only the “taking of several items during the course of a robbery.” (Ibid.) Porter was followed in People v. Smith (1992) 18 Cal.App.4th 1192, 1197-1199 (Smith), which involved similar facts.
In our view, the case before us falls under Porter and Smith, rather than Bauer and Domiquez. According to Elisa W., when appellant first approached her, he pointed a gun, and said, “‘Don’t panic. I just want your money.’” (Italics added.) Only after she said that she had no money and handed over her purse did he compel her give him control of the SUV. This testimony supports the reasonable inference that appellant conceived the plan of kidnapping Elisa only after his initial goal -- taking her money -- ended in frustration.
2. Multiple Punishments for Possession of a Firearm as a Felon
Appellant contends that the trial court improperly imposed separate punishments for the three counts of possession of a firearm as a felon, that is, count 6, count 11, and the count in Los Angeles County Superior Court Case No. PA046148-01). In People v. Spirlin (2000) 81 Cal.App.4th 119, 130-131, the court concluded that section 654 bars multiple punishments for a felon’s possession of the same firearm on different dates. Appellant argues that there is no evidence that the guns in his possession on the three dates related to these offenses are distinct. We disagree.
Appellant did not present this contention to the trial court. Generally, a defendant does not forfeit a contention under section 654 by failing to raise it before the trial court. (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.) In such cases, we review the record for substantial evidence to support implied findings sufficient to uphold the sentence under section 654. (See People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Regarding count 6, appellant testified that he offered Sharon T. a ride in a 1995 Maxima on September 14, 2003. According to Sharon, when appellant sexually assaulted her, a gun fell from somewhere, and appellant put it under the car seat. She could not recall whether it came from his jacket or somewhere else. She saw that it had a dark handle, but was unsure of its size. After appellant put the gun under the seat, he drove Sharon to a condominium, where she saw him remove the gun from the car and place it on a washing machine.
Sharon T. also testified that the gun resembled a firearm possessed by a detective in the courtroom, but the record does not describe the detective’s firearm.
Regarding count 11, Elisa W. testified that appellant’s gun on December 1, 2003 was dark and approximately six inches long. She initially testified it was “flat,” and did not have a “big round cylinder on it.” However, during cross-examination, she recalled that she had identified it as a revolver when she talked to police officers immediately after the crime. At that time, the officers told her that revolvers had cylinders and semi-automatic guns were flat, and she said the gun was a revolver. Elisa thus conceded on cross-examination that the gun “could be a revolver.”
Regarding the offense charged in Los Angeles County Superior Court Case No. PA046148-01, LAPD officer Verna testified that appellant was seated in an Oldsmobile Cutlass on December 31, 2003. According to Verna, appellant’s gun was not a revolver, and was approximately five inches long with a wooden grip. Appellant testified that the gun was five inches long, had a metal grip, and used a magazine. According to appellant, he often carried the gun in his Oldsmobile Cutlass to help him protect the car’s valuable hubcaps, and he hid it in a space near the car’s steering column. He further testified that he carried the gun only in cars where he could hide it. He therefore did not carry it in the Maxima in which he rode with Sharon T. because there was “nowhere to hide it in the Maxima.”
Because the gun in appellant’s possession on December 31, 2003, was destroyed after the conclusion of Los Angeles County Superior Court Case No. PA046148-01, it was not admitted during the underlying trial.
This evidence supports the reasonable inference that the gun found in appellant’s possession on December 31, 2003, differed from the guns seen by Sharon T. and Elisa W. Generally, on review for substantial evidence, we do not resolve conflicts in the evidence, but instead affirm a finding if it is supported by any logical inferences grounded in the evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11-14.) According to appellant’s own testimony, he never carried the gun in his possession December 31 in the Maxima; accordingly, it was not the gun Sharon saw. Moreover, both appellant and Officer Verna testified that it was not a revolver; thus, in light of Elisa’s statement to officers and her testimony on cross-examination, it was not the gun appellant directed at her.
The evidence is also sufficient to establish that appellant used different guns in connection with Sharon T. and Elisa W. According to Elisa, the gun she saw was approximately six inches long, and was therefore the same size as -- or larger than -- the gun appellant admittedly never carried in his Maxima because there was no place to hide it. In contrast, Sharon testified that appellant put his gun under the Maxima’s seat, and drove for a period of time with it there. This testimony supports the reasonable inference that the gun seen by Sharon was small enough to hide in the Maxima, and was therefore not the gun directed at Elisa. In sum, the trial court properly imposed separate punishments on the three counts of possession of a firearm by a felon.
3. Gun Use Enhancements
Appellant contends that the trial court erred in imposing separate punishments for the gun use enhancements under section 12022.53, subdivision (b), accompanying the offenses of robbery (count 10) and kidnapping for the purpose of robbery (count 7). He argues that section 654 bars multiple punishments under section 12022.53, subdivision (b), because he used the same gun against a single victim to commit different offenses closely related in time. In People v. Palacios (2007) 41 Cal.4th 720, 725-727, 733 (Palacios), our Supreme Court addressed and rejected this contention, reasoning that section 12022.53, by its express language, overrides the application of section 654.
4. Robbery and Possession of a Firearm as a Felon
Appellant contends that section 654 bars multiple punishments for possession of a firearm as a felon (count 11) and for robbery (count 10), in view of the gun use enhancement under section 12022.53, subdivision (b) accompanying the latter count. He argues that separate punishment is improper for his possession of a firearm and use of the same firearm in the course of the robbery. This contention fails in light of Palacios, which concluded that enhancements under subdivision (b) of section 12022.53 are exempt from the operation of section 654 (see pt. C.1.c., ante). Moreover, it is infirm on other grounds.
In People v. Jones (2002) 103 Cal.App.4th 1139, the court rejected a similar contention. There, the defendant, who had been convicted of a felony, drove past the home of an ex-girlfriend and fired several gunshots at it. (Id. at pp. 1141-1142.) A jury subsequently found him guilty of shooting at an inhabited dwelling and possession of a firearm as a felon. (Id. at p. 1142.) On appeal, the defendant contended that the trial court had improperly failed to stay punishment under section 654 for the latter offense, arguing that his possession of the gun was incidental to and simultaneous with his shooting at his ex-girlfriend’s home. (Jones, supra, 103 Cal.App.4th at p. 1142.) Following an examination of case authority, the court disagreed, holding that “section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (Jones, supra, 103 Cal.App.4th at p. 1145.)
The Jones court relied in part on People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1404-1405, in which a felon used a gun to commit two robberies, and was still in possession of the gun when he was arrested 30 minutes after the second robbery. On appeal, he argued that punishment for his conviction for possession of a gun as a felon should have been stayed because a gun-related punishment had been imposed in connection with his robbery convictions. (Id. at pp. 1405-1407.) The court affirmed his sentence, concluding that the weight of then-extant case authority established that multiple punishments for possession of a gun by a felon is impermissible solely when “fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense.” (Id. at pp. 1410-1412.) The court rejected a small number of cases that suggested a contrary determination. (Id. at pp. 1411-1413.)
We find Jones and Ratcliff persuasive on this matter. Here, the evidence at trial established that appellant possessed the gun before he robbed Elisa W., and thus the trial court properly declined to stay punishment for possession of a gun as a felon.
2. Sixth Amendment
Appellant contends that the trial court, in imposing the high term on his conviction for robbery (count 10), contravened his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
This contention fails under our Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799.
In Blakely and Cunningham, the United States Supreme Court established that a defendant is entitled to a jury trial on the facts supporting the selection of the upper term, with the exception of those facts that the trial court is permitted to determine under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at pp. 860, 871.) In Apprendi, defendant’s sentence had been doubled because the trial court found the crime to have been motivated by racial animus. The court held that the doubling was improper because “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.)
In People v. Black, supra, 41 Cal.4th at pages 815-816, our Supreme Court explained the implications of Cunningham for California’s determinate sentencing law (DSL): “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function.” The court concluded that as long as “one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions,” the defendant is eligible for the imposition of the upper term, and the trial court may properly select this term upon an assessment of applicable aggravating and mitigating factors. (Id. at p. 816.)
In imposing the upper term, the trial court found as aggravating factors (1) that appellant’s prior convictions were numerous and of increasing seriousness; (2) that he was on parole when he committed the underlying offenses; (3) that his performance on parole was unsatisfactory; (4) that the crimes involved planning, sophistication or professionalism; and (5) that Elisa W. was particularly vulnerable. It found no mitigating factors. Because items (2) and (3) unarguably fall within the Apprendi exception (People v. Yim (2007) 152 Cal.App.4th 366, 370-371), appellant was eligible for the upper term, and the trial court properly determined the existence of the remaining factors. There was no error.
Appellant’s prior criminal history, as disclosed in the probation report included juvenile adjudications for battery, grand theft, receiving stolen property, taking a vehicle without the owner’s consent, and murder, as well as a conviction as an adult for possession of a firearm by a felon.
Appellant argues at length that People v. Black, supra, 41 Cal.4th 799, is wrongly decided, and urges us to depart from it. We decline to do so. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Abstract of Judgment
Appellant contends that the abstract of judgment incorrectly states that his sentence for kidnapping for the purpose of carjacking (count 7) is life without the possibility of parole. We agree. The information charged appellant with kidnapping for the purpose of carjacking under section 209.5, subdivision (a), which provides that punishment for the offense is “imprisonment . . . for life with the possibility of parole.” In sentencing appellant for this offense, the trial court imposed a term of life in prison, but did not specify that this term carried the possibility of parole. The abstract of judgment states that appellant was sentenced to life without the possibility of parole. The abstract of judgment must therefore be modified to state that appellant’s sentence for the offense carries the possibility of parole.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting that appellant’s sentence for kidnapping for the purpose of carjacking carries the possibility of parole (see section D., ante), and to forward it to the Department of Corrections.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
CALJIC No. 17.40 states in pertinent part: “Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision.”