Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA294188, Charles A. Chung, Judge.
William J. Capriola, 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, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Travon Freeman, appeals from his convictions for two counts of second degree robbery (Pen. Code, § 211) and the findings that he personally used a firearm in the commission of the robberies. (§ 12022.53, subd. (b).) Defendant admitted that he was previously convicted of two felonies, one of which was a serious felony, and served two prior prison terms. Defendant argues the trial court: improperly admitted evidence of a sexual relationship as well as a videotape depicting him in handcuffs; failed to exercise its discretion to sentence him to a low term; and penalized him for exercising his jury trial right. The Attorney General argues an additional court security fee should have been imposed. We affirm with a minor modification.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On November 29, 2005, Catherin An and Chimai Tran Luu went to a restaurant at First and Larchmont Streets. At approximately 8 p.m., Ms. An and Ms. Luu left the restaurant. They went to Ms. An’s car. Ms. An’s car was parked around the corner from the restaurant on First Street. After getting into the car, Ms. An turned on the heat to warm the car. Ms. An did not drive off immediately. Ms. An saw a large sport utility truck, similar to a Durango, coming towards her car in reverse. Ms. An, fearing that the truck would crash into her car, honked her horn.
The truck stopped parallel to Ms. An’s car with the back passenger window of the truck aligned with her driver’s side window. The truck was between 8 and 18 inches away from Ms. An’s car. Ms. An saw a dark-skinned African-American man with a close cut haircut, later identified as defendant, in the passenger seat next to the window. Defendant’s eyes “stood out” to Ms. An. Defendant wore bright blue and white clothing on his upper torso. At first, Ms. An believed defendant wanted to ask directions. Defendant pulled out a gun and said more than once, “‘Give me all your money, bitch.’” Ms. An could see defendant’s face clearly. Ms. An turned toward Ms. Luu. Ms. An turned back toward defendant in the truck and looked directly at him as she handed him the money. Defendant continued to repeat, “‘Money, bitch.’” Another man got out of the truck from the driver’s side and ran to the door next to Ms. Luu. The second man, who was also African-American, had hazel eyes and shaggy hair. He was later identified as Barney Mills. Mr. Mills opened the door next to Ms. Luu. Mr. Mills then put his body and head into Ms. An’s car. As Mr. Mills did so, he said: “‘Give us everything, bitch. Give me everything, bitch. Everything, everything.’” Mr. Mills had his hand under his sweatshirt. Mr. Mills said he had a gun. Mr. Mills grabbed both victims’ wallets from their hands. Mr. Mills also took Ms. Luu’s purse and cellular telephone. Then, Mr. Mills said: “‘Well, what else? Anything else?’” Ms. Luu gave Mr. Mills a global positioning system. The light was on in Ms. An’s car after the passenger door opened. In the meantime, defendant opened the driver’s side door to Ms. An’s car. Ms. An was within arm’s length of defendant’s face. Thereafter, Mr. Mills ran back to the truck and it drove away. Ms. An and Ms. Luu looked at the license plate on the truck. Ms. Luu repeated the license plate number out loud until they went back inside the restaurant, where they wrote it down. Ms. Luu called the police. Ms. Luu gave the license plate number of the truck to the police over the phone and to a responding officer.
Los Angeles Police Officer Jason Malik was on patrol with a partner at approximately 1:15 a.m. on November 30, 2005; slightly more than five hours after the robberies of Ms An and Ms. Luu. The officers stopped near the corner of Sixth and Main Streets to assist another officer with a traffic stop. Officer Malik saw a Dodge Durango truck pull up on the opposite corner of Sixth Street, a one-way street. Officer Malik’s partner entered the license plate number of the truck into the computer in the police car. The officers were informed that the occupants of the truck were wanted and considered armed and dangerous. Officer Malik followed the Durango truck. Officer Malik’s partner requested backup assistance and an air ship. The Durango drove two blocks, parking in front of the central division police station.
Officer Malik activated his forward facing red light. Officer Malik got out of the patrol car. The driver, later identified as Michael Pencil, got out of the truck. Mr. Pencil was ordered to drop his keys and get down on the ground. Officer Malik could see that there were other individuals inside the truck. Officer Malik ordered them out of the truck, beginning with the front passenger, David Hatfield. Those seated in the middle row of the truck exited in the order they were seated, Daunte Allen, Alicia Jackson, and Mr. Mills. Defendant then got out of the third row of seating. Defendant was wearing a royal blue long-sleeved shirt with a white tee shirt over it. The last person out of the truck from the third row seat was Regginal Taylor. Mr. Taylor wore a long female wig. All of these individuals were detained for the robbery investigation. A search of the Durango truck revealed several purses strewn throughout the passenger area. A piece of plastic removed from the floorboard area of the front seat revealed an opening where a .25 caliber stainless steel semi-automatic handgun was located. Officer Malik also found $472 in cash in the center console. When Mr. Mills was searched, he was found to have $262 on his person. Defendant had $177 on his person. Mr. Allen had $50. Mr. Pencil possessed $10.
Later in the morning of November 30, 2005, Ms. An and Ms. Luu went to the police station. Both were independently shown three photo lineups. Ms. An identified defendant’s photo as the individual who robbed her at gunpoint. Ms. An also identified Mr. Mills’s photo as the man with the shaggy hair that opened the passenger door during the robbery. Ms. An identified defendant at trial as the man who held the gun. Ms. An noted that defendant’s hair was longer at trial and he was wearing eyeglasses. Ms. An noted that at the time of the robbery, defendant wore a bright blue shirt and white tee shirt in multiple layers. Ms. An also identified her wallet, car keys, and driver’s license depicted in a photograph at trial which were found in the Durango. Ms. An had identified the same items at the police station on November 30, 2005. Ms. Luu identified her purse, cellular telephone, car keys, glasses, and glasses case at the police department on November 30, 2005, and in a photograph at trial. These items were taken from her during the robbery. After viewing the three photographic lineups, Ms. Luu identified two individuals that looked like the man that opened the passenger door during the robbery and took her belongings. On April 6, 2006, Ms. Luu attended a live lineup. Ms. Luu identified Mr. Mills as the individual who opened the passenger door during the robbery. When Ms. Luu testified at the preliminary hearing, she identified Mr. Mills as the man who opened the door during the robbery. She also identified defendant as the man who held the gun.
Defendant testified in his own behalf. Defendant denied robbing Ms. An and Ms. Luu. Mr. Pencil, who was driving the Durango, picked up defendant between 11 and 11:30 p.m. at a club in Hollywood. Initially, it was planned that defendant would be dropped off at his house. However, Mr. Pencil received a telephone call and eventually defendant fell asleep.
III. DISCUSSION
A. Evidentiary Issues
1. Evidence of defendant’s relationship with Mr. Taylor
a. factual and procedural background
On relevancy grounds, defendant argues that the trial court impermissibly allowed the prosecutor to introduce evidence of a sexual relationship with Mr. Taylor. Defendant further argues that even if the evidence went to his credibility, “[A]ny minimal probative value was substantially outweighed by the prejudicial nature of the evidence and the possibility of confusing the issues and the trial court erred by denying [his] objection under Evidence Code section 352.” Finally, defendant argues that the admission of the evidence violated his “federal due process right” to a fair trial.
During jury voir dire, the court inquired of the jurors as follows: “There may be certain evidence brought in through photographs that show a different lifestyle, specifically a homosexual lifestyle, with perhaps some cross-dressing involved. Do any of you feel that that is going to affect your ability to be fair and impartial in this case? [¶] Okay. Simply because one or more participants in this case may have an alternate lifestyle does not matter, as far as it relates to guilt or the not guilty status of the defendant. Are all of you agreeable with that? All right.” Thereafter, Officer Malik testified that Mr. Taylor, at the time of the early morning November 30, 2005 arrest, was wearing a female wig and was seated next to defendant.
As noted, defendant testified on his own behalf. When cross-examined, defendant was asked who was with him at the time of his arrest. Defendant stated that he was with: Mr. Pencil; Mr. Allen; Mr. Mills; and “some other person that had like a burgundy hooded sweatshirt.” When asked if he knew the name of the person in the burgundy sweatshirt, defendant responded, “I believe they said his name is Regginal Taylor.” Defendant was uncertain about Mr. Taylor’s name because they only met between three to five days before their arrest. Defendant explained that at the time they met, Mr. Taylor was going by a “female” name. The following colloquy occurred: “Q What is your relationship with Regginal Taylor? [¶] A As to like - - I’m asking as to what. [¶] Q When you said you barely knew Mr. Taylor, is that correct? [¶] A Yes. [¶] Q And when you say you barely knew Mr. Taylor, you didn’t even know his real name. [¶] A No, Ma’am. [¶] Q When did you first learn that he was a male? [¶] A I knew he was a male the first time I met him.” Thereafter, defense counsel objected, on relevancy grounds. The trial court responded, “Overruled. It goes to his credibility.” The prosecutor then inquired: “What was - - what, if any, relationship did you have with Mr. Taylor? Was it just somebody you said hi and bye to?” Defense counsel’s “same objection” was overruled. The prosecutor asked: “Now, in terms of Gina, what was your relationship with Gina? Was it just a hi and bye sort of situation?” Defense counsel’s “same objection” was again overruled. Defendant responded, “No.” Defendant then explained, “Basically what I’m telling you is that I go both ways.” The prosecutor asked defendant to describe their relationship on November 30, 2005. Defense counsel objected, “I believe he’s answered the question, your honor.” The trial court responded, “Let’s move on.” The prosecutor inquired, “Are you saying that he was your lover?” Defendant responded: “Not as far as like a lover. As far as like a real relationship, no.” The prosecutor again asked, “The question is, was he your lover.” Defense counsel objected, noting, “Counsel is badgering the witness.” The trial court noted: “It is not badgering but let’s move on. I think it’s on the record.” The prosecutor inquired, “Did you ever describe Regginal Taylor as your lover?” Defense counsel objected on relevancy grounds. The trial court overruled the objection, noting, “Goes to credibility.” Thereafter, defendant responded: “At the time I talked to the detectives, yes, I stated that, but as far as us being a relationship wise, no, because I just met that person like I said four or five days before.”
Defense counsel renewed his objection to the line of questioning following the foregoing testimony arguing that it was “highly prejudicial and highly” irrelevant. Defense counsel also argued for the first time that the evidence was prejudicial and requested that the court exclude it pursuant to Evidence Code section 352. The trial court responded: “I would agree that standing on its own it is not relevant. However, I think it does go to the defendant’s credibility, and I think he put it into issue when he claimed that he could not remember the person’s name. The fact that he’s been intimate with this person, the fact that he told detectives that this person was a lover and then he cannot remember the person’s name goes to his credibility. [¶] There is a jury instruction that says if a witness is willfully false in one part of his testimony, the jury can disregard all of his testimony. [¶] I did grant a certain amount of leeway and I moved [the prosecutor] on after that had been proven. I did not let her dwell on that fact. The jury was voir dired extensively on that issue. [¶] Under 352 analysis I think his credibility issues are very probative and I don’t think there was any undue prejudice. Weighing those factors it is admitted but your objection is preserved for the record.”
Evidence Code section 352 provides, “The court in its discretion may exclude evidence 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.”
b. waiver
Defendant’s Evidence Code section 352 objection came well after defendant testified on the subject. The California Supreme Court has held: “To satisfy Evidence Code section 353, subdivision (a), the objection or motion to strike must be both timely and specific as to its ground. An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced; the opponent cannot make a ‘placeholder’ objection stating general or incorrect grounds (e.g. ‘relevance’) and revise the objection later in a motion to strike stating specific or different grounds.” (People v. Demetrulias (2006) 39 Cal.4th 1, 22, original italics; see People v. Rundle (2008) 43 Cal.4th 76, 116.) Defense counsel’s attempt to add further grounds for his objection was untimely and amounts to waiver. (Evid. Code § 353; People v. Gurule (2002) 28 Cal.4th 557, 626; People v. Medina (1995) 11 Cal.4th 694, 753; In re Michael L. (1985) 39 Cal.3d 81, 87-88; People v. Collie (1981) 30 Cal.3d 43, 49.)
c. given its relevance on the issue of defendant’s believability, the trial court could properly admit the relationship evidence
Notwithstanding that waiver, we find the trial court could properly admit the evidence because it was relevant to defendant’s credibility. Trial courts have broad discretion concerning the admission of evidence. (People v. Anderson (2001) 25 Cal.4th 543, 591; People v. Smithey (1999) 20 Cal.4th 936, 973-974.) The California Supreme Court has repeatedly held: “As with all relevant evidence . . . the trial court retains discretion to admit or exclude evidence . . . . [Citations.] A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing 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. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cudjo (1993) 6 Cal.4th 585, 609.) Evidence Code section 210 states, “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (See People v. Harris (2005) 37 Cal.4th 310, 337; People v. Hart (1999) 20 Cal.4th 546, 606, fn. 16; People v. Garceau (1993) 6 Cal.4th 140, 177.) In addition, Evidence Code section 780 provides in pertinent part: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (e) His character for honesty or veracity or their opposites. [¶] . . . [¶] (h) A statement made by him that is inconsistent with any part of his testimony at the hearing. . . .”
Defendant initially only identified Mr. Taylor as the individual in the burgundy sweatshirt. When pressed further, defendant admitted knowing Mr. Taylor’s name. But, when questioned by the arresting officers, defendant described Mr. Taylor as a lover. And defendant denied having a “relationship” with Mr. Taylor. The trial court could properly find that these discrepancies in his testimony were relevant to defendant’s credibility. Moreover, when subject to direct examination, defendant testified he was picked up between 11 and 11:30 p.m. on November 29, 2005. Defendant testified on direct examination at that time Mr. Pencil was the driver and the other passengers, including Mr. Taylor, were already inside the truck. Defendant’s in court testimony also conflicted with a portion of his tape recorded interview with the police. In that interview, defendant readily identified Mr. Taylor and described their gay relationship.
2. Videotape evidence
a. factual and procedural background
Defendant argues that the trial court improperly admitted a videotape depicting him in handcuffs. More precisely, defendant argues that the videotape: “was inadmissible under Evidence Code section 352, undermined the presumption of innocence, and rendered his trial fundamentally unfair.” The prosecutor played a portion of a videotape recording without any sound. The prosecutor asked Officer Malik to identify the person shown in the video. Defense counsel objected, stating, “I would like my objection noted.” The trial court overruled the objection. Thereafter, the videotape was played. Officer Malik identified defendant, who was wearing a long-sleeved royal blue shirt with a white T-shirt over it. This was the same clothing defendant wore at the time of his arrest on November 30, 2005. Officer Malik’s testimony concluded the prosecution case. Thereafter, the trial court inquired whether the defense had any objections to the prosecutor’s exhibits. Defense counsel objected to the videotape as follows: “In regard to the videotape I’m objecting because of the circumstances it shows [defendant] in. It shows [defendant] in police custody obviously with a detective there. Detective Leiva is there. I think he’s got his gun. [Defendant] is handcuffed I believe on the left side. It shows [defendant] in custody and it shows he is going to be probably interviewed. [¶] While he may or may not invoke his right against self-incrimination, it puts the jury in a position of wondering, guessing what the heck happened. And while you can say that I can cure that with a limiting instruction, I’m not sure that really unrings the bell. [¶] I would submit that based on all the grounds I could have regarding the California constitution as well as the federal constitution.”
The trial court overruled the objection noting: “There were concerns that it was prejudicial to the defendant because he is shown at the station. He is in handcuffs, a detective has a gun, and there is speculation as to whether or not he gave an interview and, if so, what he may or may not have said. [¶] Under [Evidence Code section] 352 analysis the court finds that it is highly probative. It goes to the issue of I.D. It shows the clothing that he was wearing. The fact that he is in custody and the fact that there is a detective with a gun on, I don’t see any prejudicial attributes to that. There was clear testimony that they were arrested and that they were booked. There was talk of booking photos and whatnot. And the fact that a police officer has a gun I don’t think is any big surprise. [¶] As to what the defendant may or may not have said, I don’t think that was implicated simply by showing him being walked into a room. Despite that, on voir dire we went in length as to the defendant’s right to remain silent and what not and I think that has been more than adequately covered. So the video is introduced.” Thereafter, the parties agreed to have the trial court give a limiting instruction regarding the videotape. The jurors were subsequently ordered: “I want to admonish you that as to that video, you are not to speculate whether or not a statement was or was not made by the defendant. Nor are you to speculate whether the defendant invoked or did not invoke his right to remain silent. The defendant has an absolute right to remain silent and you are not to speculate one way or the other.”
b. waiver
Defendant’s objection to the introduction of the videotape at trial was, “I would like my objection noted.” Defense counsel did not specify the basis for his objection. As noted above, an objection to evidence must generally be preserved by a specific objection at the time the testimony at issue is presented. Defense counsel could not make a “placeholder” objection stating general or incorrect grounds and revise the theory later identifying a more specific or different analysis. (People v. Demetrulias, supra, 39 Cal.4th at p. 22; People v. Rundle, supra 43 Cal.4th at p. 116.) In this instance, defense counsel made no specific objection until the after the videotape had been played for the jury and exhibits were being considered for admission into evidence. Even then, defense counsel merely objected to “the circumstances it shows [defendant] in” and “all the grounds I could have regarding the California constitution as well as the federal constitution” which needless to note is not a specific objection. Defendant failed to preserve the issue on appeal. (Evid. Code § 353; People v. Marks (2003) 31 Cal.4th 197, 228; People v. Gurule, supra, 28 Cal.4th at p. 626.)
c. the trial court could reasonably admit the videotape evidence
Notwithstanding that waiver, the trial court could reasonably find the video tape evidence admissible. As set forth above, the trial court had broad discretion concerning the admission of evidence pursuant to Evidence Code section 352. (People v. Anderson, supra, 25 Cal.4th at p. 591; People v. Smithey, supra, 20 Cal.4th at pp. 973-974.) We review admissibility of evidence contention for an abuse of discretion. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10; People v. Minifie, supra, 13 Cal.4th at p. 1070.) The photographs and videotape evidence are subject to the same admissibility rules. (People v. Carey (2007) 41 Cal.4th 109, 128; People v. Pollock (2004) 32 Cal.4th 1153.) Here, the trial judge found the evidence highly probative as to the issue of identification. The videotape depicted defendant some six hours after the robbery of Ms. An and Ms. Luu wearing the same distinctive clothing described by the victims. Any prejudice resulting from the brief view of defendant in handcuffs was outweighed by the probative value of the evidence and the careful nature in which it was presented. The prosecutor played only a brief portion of the videotape without the sound. In addition, the trial court admonished the jury not to speculate regarding whether defendant exercised his right to remain silent.
c. harmless error
Moreover, any error in admitting the sexual relationship and videotape evidence was harmless under any standard of reversible error analysis. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.) Ms. An saw defendant from arm’s length. Ms. An stared directly into defendant’s face throughout most of the robbery. Ms. An described defendant’s clothing, specifically noting that he wore a bright blue shirt layered with a white shirt. Defendant was wearing these clothes at the time of his arrest. Ms. An identified defendant’s photo from a photographic lineup shown to her on the day after the robbery. Ms. An also identified defendant as the robber at the preliminary hearing and at trial. Ms. Luu identified defendant during the live lineup as the man who held the gun during the robbery. The property of both Ms. An and Ms. Luu were recovered from the Durango truck in which defendant was a passenger within hours after the robbery. The license plate of the truck was the same as that given to police by the victims. Mr. Mills was defendant’s companion in the truck at the time of the arrest. Mr. Mills was also identified by Ms. An and Ms. Luu as the individual that opened the passenger door during the robbery.
B. Sentencing
1. The trial court did not penalize defendant for rejecting a plea offer
a. factual and procedural background
Defendant argues that he was “impermissibly penalized” for exercising his jury trial right. On December 14, 2006, prior to trial, defendant had been offered a 25 year sentence if he pled guilty to 7 counts of robbery. After trial, defendant received a 22 year sentence. In making the 25 year offer, the trial court noted: “I want to talk to you about various offers that have gone back and forth. The [prosecutor] talked about 30 years yesterday. I have had an opportunity, with your attorney’s permission, to review the file a little bit more closely. I’ve read the probation officer’s report. I’ve considered your past criminal history. [¶] I don’t think necessarily that 30 years is what this case is worth. I think it’s worth probably 25 years. From what I’ve read, there were seven or eight - - [¶] . . . [¶] Okay. Seven separate armed robberies where a gun was used either by yourself or other people. And I know these are only accusations at this point, but I’m just telling you what I know of the case. The law does treat that type of behavior very harshly. Anytime you use a gun, it’s automatically ten years on certain types of cases. And then, you’ve got a strike conviction on top of that. You’re, again, facing fifty-some-odd years. [¶] I don’t think 30 years is what this case is worth. Certainly, seven armed robberies is very serious business; but I think 25 is enough to punish your type of behavior. Again, that would be at 85 percent good-time/work-time credit, which you’re eligible for. You’re not guaranteed it; but if you behave, then you’d get the 15 percent. [¶] And I think 25 years is reasonable. You seem like a fairly young man. That, in my mind, still gives you time to get out and have some life left. I would hate to see you get convicted and get maxed out and then spend most of your natural life in prison. Now, I’m not telling you that I would max you out if you got convicted; I would have to listen to all the evidence. But, quite frankly, seven separate armed robberies is not that great. [¶] Now, both sides have been somewhat candid. They’ve been somewhat open about the strengths and weaknesses of the case. There are strengths - - you’ve been identified by a number of people, and this is an [identification] case, essentially. And there are weaknesses too, varying levels of strength and weakness as to [identification]. But in any case, your attorney asked me if you pled open, meaning, if you pled to all the charges, what would I do. I’d give you 25 years. I think that’s correct. I think 30 years is too harsh. I think 25 years is fair, considering you have a prior strike conviction. [¶] Now, I don’t want to force you to do anything. I just want to let you know that’s what I think is fair and that’s what I would give you if you wanted to plead open to the court. I would cut the [prosecutor’s] offer by five years. So that’s my offer if you’d like to consider it.”
The trial court agreed to include the pending charges for criminal threats and possession of a shank that defendant incurred while in custody awaiting trial. However, defendant declined the offer and chose a jury trial. Defendant was originally charged in seven felony counts. During jury selection, on December 18, 2006, the prosecution’s motion to dismiss counts 3, 4, and 7 was granted. Later, on December 20, 2006, judgments of acquittal pursuant to section 1118.1 were entered as to counts 5 and 6.
At the January 4, 2007 probation and sentencing hearing the trial court selected the mid term of three years as to count one and doubled it pursuant to section 667, subdivision (e)(1). The trial court also imposed: a 10-year enhancement pursuant to section 12022.53, subdivision (b); a 5-year enhancement pursuant to section 667, subdivision (a); and a 1-year enhancement pursuant to section 667.5, subdivision (b). The trial court imposed an aggregate term of 16 years as to count two and ordered that it be imposed as a concurrent sentence. In imposing that sentence the trial court noted: “[T]he defendant stands convicted of counts one and two along with the special allegations under penal Code section 12022.53(b). He also admitted the five-year prior under Penal Code section 667(a) as well as a [] one-year prior under [section] 667.5(b). [¶] The court then - - at this time after having read the report and having heard the trial, probation is denied. And the defendant is going to be sentenced to a total of 23 [sic] years in state prison.” The trial court also noted that the robbery involved a high degree of sophistication and planning. Defendant argues that the 22-year sentence imposed for two counts of armed robbery constituted a penalty because he opted for a jury trial.
b. the 22-year sentence could properly be imposed
In People v. Collins (2001) 26 Cal.4th 297, 304 the California Supreme Court held: “The Sixth Amendment, made applicable to the states in this context by the Fourteenth Amendment of the federal Constitution, confers upon a defendant in a criminal prosecution the right to a trial by jury. [Citations.] . . . Similarly, article I, section 16 of the California Constitution confers upon a defendant in a criminal prosecution the right to a trial by jury. (People v. Ernst (1994) 8 Cal.4th 441, 444-445; In re Lewallen (1979) 23 Cal.3d 274, 278; see also §§ 689, 1042.)” However, “It is well settled that to punish a person for exercising a constitution right is ‘a due process violation of the most basic sort.’ (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363.) . . . [¶] . . . [T]he refusal of an accused to negotiate a plea with the prosecution must not influence the sentence imposed by the court after trial.” (In re Lewallen, supra, 23 Cal.3d at p. 278-279.) The Lewallen court further held: [A] trial court’s discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution. The imposition of sentence within the legislatively prescribed limits is exclusively a judicial function. [Citation.] . . . Legitimate facts may come to the court’s attention either through the personal observations of the judge during trial [citation], or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution.” (Id. at p. 281, footnote omitted; see In re Edy D. (2004) 120 Cal.App.4th 1199, 1201.) Moreover, the Supreme Court has held: “The mere fact . . . that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights.” (People v. Szeto (1981) 29 Cal.3d 20, 35; see People v. Fernandez (2004) 123 Cal.App.4th 137, 141.)
In this case, the trial court did not threaten to sentence defendant to a harsher term if he rejected the plea offer. Nor did the trial court indicate that a longer sentence was imposed because defendant chose to go to trial. At sentencing, the trial court reviewed the probation report, which noted only the following aggravating factors: the crime involved great violence and multiple victims; defendant induced others to participate in the crime or occupied a position of leadership or dominance of other participants in its commission; the planning, sophistication, or professionalism with which the crime was carried out indicated premeditation; defendant engaged in a pattern of violent conduct which indicates a serious danger to society; defendant’s prior convictions as an adult or juvenile adjudications are numerous or of increasing seriousness; defendant was on probation or parole when he committed the crime; and defendant’s prior performance on probation or parole was unsatisfactory. The probation report recommended: the imposition of the high base term; imposition of consecutive enhancements; and consecutive sentencing as to each count. The trial court then imposed the mid term as to count 1 and doubled it as required by section 667, subdivision (e)(1). The trial court then imposed the relevant enhancements. In imposing a concurrent mid term as to count 2, the trial court exercised leniency in sentencing. The trial court sat through the trial, heard evidence of defendant’s violence toward the two victims in this case, and observed his demeanor and the victims’. Defendant was on parole when he robbed Ms. An and Ms. Luu and had a substantial history of violence. The trial court could reasonably impose the 22-year sentence within its sentencing discretion.
2. Imposition of the mid term
Defendant argues that the matter must be remanded for resentencing because the trial court did not know it had the discretion to impose the low term even in the absence of mitigating circumstances. Defendant cites to Cunningham v. California (2007) 549 U.S. 270, ___ [127 S.Ct. 856, 860], and argues that the Legislature’s amendment of section 1170, subdivision (b) should be applied retroactively in his case. As amended, section 1170, subdivision (b) provides in pertinent part, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” (Stats. 2007, ch. 3, §2, see People v. Lincoln (2007) 157 Cal.App.4th 196, 205.)
The Supreme Court has held: “‘“[T]he trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) In this instance, the trial court understood its discretion to impose the term it found appropriate. The trial court initially indicated that it would impose the upper term as to count 2 and double it pursuant to section 667, subdivision (e)(1), because of the high degree of sophistication and planning involved in the robberies as well as add a section 10222.53, subdivision (b) enhancement. However, the prosecutor pointed out that the sentence as to count 2 would constitute the longest term. Thus, the count 2 sentence must become the principal term that the trial court impose. Thereafter, the trial court said it would impose the low term as to count 2. The prosecutor then requested the mid term be imposed. (§ 1170.1 subd. (a); People v. Mosely (2007) 155 Cal.App.4th 313, 328-329.) The trial court complied with the prosecutor’s request. As noted previously, the trial court sentenced defendant to a concurrent term as to count 2, thereby exercising its discretion to impose a more lenient sentence. The trial court could reasonably sentence defendant to 22 years based upon the circumstances of the offenses and the probation officer’s report.
3. Court security fee
Following our request for further briefing, the Attorney General argues the trial court should have imposed a $20 section 1465.8, subdivision (a)(1) court security fee as to each of the three counts for which defendant was convicted. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one court security fee. As a result, one additional section 1465.8, subdivision (a)(1) fee shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to full comport with the modification we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the imposition of an additional $10 court security fee. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.