Opinion
A148751
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALAN MARCHANT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR663247)
A jury found David Alan Marchant guilty of three counts of attempted robbery (Pen. Code, §§ 211, 664), and four counts of robbery (§ 211). The trial court sentenced Marchant as a third strike offender and applied various sentencing enhancements, resulting in a total sentence of 148 years to life in prison (§§ 667, subd. (a), 667.5, subd. (b), 1170.12).
All undesignated statutory references are to the Penal Code.
Marchant appeals. First, Marchant contends the court violated his due process rights by admitting evidence of a pretrial identification that was "the product of an unreliable, unduly suggestive identification process." Second, he argues there was insufficient evidence he was the person who attempted to rob Tan's Donuts, or that he attempted to rob both persons inside the shop. Third, he contends there was insufficient evidence he robbed one of the two victims at a Shell gas station, and, with regard to the same charge, he contends the court should have instructed the jury that attempted robbery was a lesser included offense. Fourth, he argues the court was unaware of its discretion under the three strikes law. Fifth, Marchant contends the court erred when applying sentencing enhancements.
We modify the judgment to correct two errors relating to prior prison term sentencing enhancements under section 667.5, subdivision (b), thereby reducing Marchant's total effective sentence to 140 years to life. We otherwise affirm.
By separate order filed this date, we deny Marchant's related petition for writ of habeas corpus (A153171) raising a claim that evidence was admitted at trial in violation of the Fourth Amendment of the United States Constitution and claims of ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts relevant to the issues on appeal. We provide additional factual and procedural details in the discussion of Marchant's specific claims.
The prosecution charged Marchant with three counts of attempted robbery (§§ 211, 664; counts 1-3), and four counts of robbery (§ 211; counts 4-7). The offenses were alleged to be serious and violent felonies. (§§ 1192.7, subd. (c); 667.5, subd. (c).) It was further alleged that Marchant had two prior serious felony convictions and served two prior prison terms. (§§ 667, subds. (a), (d) & (e), 667.5, subd. (b), 1170.12, subds. (b) & (c).)
A. Prosecution Evidence
1. Attempted Robberies at Tan's Donuts (Counts 1, 2)
Tan's Donuts is a store located in Rohnert Park, California. It sells coffee and doughnuts and operates as a "cash only" business. Early on the morning of February 20, 2015, Mouy Tan (Tan) and her husband, Com Lao, were in the store baking doughnuts. Tan communicates with her husband in Cambodian, and he understands very little English. When they opened around 4:30 a.m., Tan was in the back of the store, and her husband was in the front.
Tan heard a voice say "Give me the money." She called the police, and told the dispatcher "Someone tried to kill me," and "the guy tried to come and he had a gun." Tan, who was scared, hung up the telephone and went to the front of the store. She did not see the person who asked for the money, and he was in the store for no more than two minutes. Tan was not able to identify him.
Shortly after Tan made her 911 call, the police arrived. Surveillance video footage showed a man wearing a hooded sweatshirt walking near Tan's Donuts, and, about five minutes later, the same person parked a minivan in a spot close to the store. As shown in the video footage, the man got out of the minivan, and he loitered in the area outside Tan's Donuts before going inside. Shortly afterwards, the man ran out of the shop, returned to his minivan, and he drove away.
2. Attempted Robbery at Taco Bell (Count 3)
At around 12:30 a.m. on February 27, 2015, Jarrod Ragan (Ragan) was working at the drive-through window in a Taco Bell restaurant in Rohnert Park. A man ordered a "combo," and when Ragan asked him what drink he would like, he said he did not care, which seemed odd to Ragan.
When the man pulled up, Ragan told him how much he owed, and the man appeared to reach for his wallet in his left and right pockets. Ragan observed the man for about 10 to 15 seconds while he was looking for his wallet. Ragan was at eye level with the man because he was in a "higher" vehicle, which appeared to be white.
The man pulled out a gun from under his sweatshirt, and Ragan immediately left the window area. Ragan was able to view the man for a second or two before fleeing. Ragan was scared. Ragan and another employee locked themselves inside the freezer, and pushed the "panic alarm." When they left the freezer area, their coworker told them a white SUV just sped away.
Ragan told one police officer the vehicle was a white Dodge Durango, and, in his written statement, he said it was an older, white Dodge vehicle. He also described the vehicle as a white Bronco or a white SUV. Ragan described the person as a white male in his "mid forties," with "dirty" facial hair, a husky build, and a round shaped face.
Later that day, the police took Ragan to the location of two individuals, but Ragan did not identify either person as the one who attempted to rob the Taco Bell. About a week later, the police contacted Ragan to conduct a six-pack photographic lineup. First, Ragan narrowed the photographs down to photograph numbers 5 and 6. Based on "the eyes and the nose," Ragan eventually selected photograph number 5. Ragan also made an in-court identification of Marchant, and he was certain Marchant was the person who attempted to rob the Taco Bell.
3. Robberies at the Shell Gas Station (Counts 4, 5)
Guadalupe Vega Garcia (Garcia) is a cashier at a Shell gas station in Rohnert Park. At about 6:15 a.m. on February 27, 2015, it was the end of Garcia's shift, and the beginning of her coworker's. Garcia communicates with her coworker, Elizabeth Olvera (Olvera), in Spanish. Garcia was writing down information pertaining to her shift, and her coworker was next to the cash register.
A man came into the gas station, selected a muffin or some bread, and he pulled out a gun. The man was wearing a hooded, green sweatshirt and a baseball cap with a black bill. He had a light beard, and, based on his voice, he appeared between 50 and 60 years old. The man was holding a black gun with his right hand at hip height and pointing it at Olvera. Olvera was very nervous, so the man yelled "Give me the damn money." Olvera was unable to immediately find the right button to open the cash register. When she opened it, she moved aside, and the man took about $108. The man also asked Garcia for money, but she said she did not have any, so he left. Olvera called the police. Garcia and Olvera were not able to identify the man who robbed the Shell gas station.
4. Robberies at the Flamingo Hotel (Counts 6, 7)
Veronica Cumbow (Cumbow) is employed as a night auditor at the Flamingo Hotel in Santa Rosa, California. In the early hours of February 27, 2015, she and the night houseman, Alden Muller (Muller), were working at the hotel.
At around 1:30 a.m., Cumbow was sitting at the front desk, while Muller was vacuuming in the front lobby. A man came in, and he asked Cumbow if he needed to make an online reservation. Cumbow replied she could check him in with a credit card and identification. The man responded "Let me go ask my old lady," and left.
When the man came back in, the hood of his green sweatshirt was up, and he came up to the counter acting as if he was going to pull out his wallet. Instead, he pulled out a gun and held it against his stomach with his right hand. Based on her prior experience with guns, and the way the gun "clanked" on the marble counter, Cumbow believed it was real. Cumbow focused on the weapon. The man never pointed the gun at Cumbow, but he held it in his right hand, pressed against his body, with his finger in "the trigger pull area." The man was about two or three feet from Cumbow.
The man told Cumbow to "Give me all the money," and she said she did not have any. Then he said "Just give me your wallet." Cumbow turned to get her wallet from a back room, but the man said "What are you doing?" Cumbow responded, "You asked me for my wallet." The man turned around, and went towards the night houseman. When he did so, Cumbow was able to dial 911, and she left the line open. When the man returned to Cumbow's desk, she gave him her wallet, and he ran out the door.
The houseman, Muller, noticed an individual "wearing a green hoody pulled up" walk into the hotel, but Muller—who was vacuuming—could not hear him and thought he had left. When Muller heard shouting, he turned off the vacuum cleaner, and began walking toward the front desk. The man turned, and Muller saw he was "holding a black pistol down by his waist." Muller put his hands up, and said "Oh. It's okay, man. It's all good." The man gestured with the gun towards Muller, and he said "Give me your wallet."
Muller did not have any valuables on him, so he gave the man his walkie-talkie. Muller made eye contact with the man as he handed him the walkie-talkie, and then the man sprinted out the front doors. Muller began to follow the man, who said "Get the fuck away from me." Muller went to Cumbow to console her, and the police arrived about two minutes later. Muller identified Marchant in court as the same person.
Cumbow was unable to identify the man, but she observed he had a tattoo on the ring finger of his left hand, and his gun had an orange dot on it. Cumbow identified the gun based on photographs shown to her by the police. Cumbow also identified Marchant's ring finger tattoo based on a photograph. Cumbow was confident the man was holding the gun in his right hand and had a tattoo on the ring finger of his left hand.
Muller observed the man had "a little bit of facial hair," and he was wearing a "dingy looking" green sweatshirt with a hood. The man did not have a long beard, but it looked like he had not shaved recently. His beard was greyish blond. His pants looked like Khaki's, and he had black shoes. Under the hood, his head was "nearly shaved."
About two weeks after the incident, a detective came to Muller's house and showed him six photographs and "one of them just stuck out . . . it was a no brainer." Muller identified the person in photograph number 2 as the person who robbed him. Muller also recognized the gun in a photograph as the same or similar to the one he saw. The incident was "engrained very strongly" in Muller's memory, and he had no doubt Marchant was the robber.
5. The Investigation
Officer Philip Lamaison of the City of Rohnert Park Department of Public Safety investigated the attempted robbery at Tan's Donuts. The officer obtained video surveillance footage from a nearby Walmart. He viewed footage from a number of different camera angles from the timeframe of 4:30 a.m. to 4:50 a.m. on February 20, 2015. The officer downloaded three video files from Walmart onto his thumb drive.
Officer Lamaison also obtained video footage from Ronnie's Market in connection with the Shell gas station robbery. Ronnie's Market is located behind the Shell gas station. Sergeant Jeff Justice of the City of Rohnert Park Department of Public Safety determined the video footage from Ronnie's Market depicted a Dodge Caravan with a model year of 2001 to 2006. The sergeant determined the same vehicle was involved in the February 20, 2015 attempted robbery of Tan's Donuts, and the incidents at the Taco Bell and the Shell gas station a week later. All three incidents involved "a minivan that was either gold or tan or silver or grey in color," and the suspect in each case was described as a male. The sergeant searched law enforcement data systems, and he identified approximately ten men associated with Dodge Caravan vehicles. One of those persons was Marchant, who lived in the neighborhood next to Tan's Donuts.
Sergeant Justice and another officer went to Marchant's residence, and they observed a vehicle parked on the street that was similar to the one depicted in the surveillance videos. The officers observed Marchant leaving his residence, getting into the driver's seat of the vehicle, and they followed him to a Safeway, where he used a pay phone. He was wearing black shoes with thick white soles that matched the shoes seen on the suspect in the videos.
The sergeant created a photographic lineup with Marchant's photograph in it. Instead of using a photograph from Marchant's driver's license or a booking photograph, the sergeant used a photograph from Marchant's Facebook page because it more accurately depicted Marchant's appearance. Sergeant Justice also used five other photographs of persons who were Marchant's friends on Facebook, and who looked similar to Marchant.
Sergeant Justice administered the photographic lineup to Ragan, the victim from the Taco Bell attempted robbery. Sergeant Justice did not use a "blind administrator," or, in other words, someone who had no knowledge of the case, to administer the photographic lineup. However, before presenting the lineup to Ragan, Sergeant Justice admonished Ragan that the person who committed the crime may not be included in the group of photographs, and that the person's appearance may have changed.
Ragan told the sergeant he was initially drawn to photograph numbers 5 and 6. With regard to photograph number 5, Ragan said "the eyes and cheekbones" looked similar to the person who attempted to rob him, but "the smile was throwing him off." Sergeant Justice took a piece of paper and covered the area from the nose down in photograph numbers 5 and 6 "to eliminate that expression from the photograph to see if that helped." Ragan stated it helped, and he identified the person in photograph number 5 as the attempted robber. This person was Marchant. Ragan looked at the six-pack lineup for about five minutes before ultimately selecting Marchant. The witnesses from Tan's Donuts and the Shell gas station were not able to identify Marchant from six-pack lineups.
Marchant's minivan was a gold or tan Dodge Caravan. In the vehicle, police officers found some baseball caps, one of which had a black bill. On the vehicle's floor, next to the driver's seat, the officers found a gun case that contained a Beretta pellet gun. Externally, it resembled a real gun. There were pellets, propellant, and a magazine of pellets. An orange dot was visible on the gun when the safety was off.
In the video footage from Ronnie's Market, a shiny object appeared to be dangling from the rearview mirror of the minivan. When police searched Marchant's Dodge Caravan, they found "a metal mustache on a chain pendant" hanging from the mirror. In the Walmart footage, the minivan appeared to have a sticker on the lower left-hand corner of its back window. When police searched Marchant's vehicle, there were "remnants of glue and what used to be a sticker" on the minivan's back window. The Shell gas station surveillance video depicted the robber wearing a green hooded sweatshirt with a white logo above the left pocket. Inside Marchant's residence, officers found a green hooded zip-up sweatshirt with a white Carhartt logo on the left pocket.
B. Defense Evidence
Ralph Haber, Ph.D., testified for the defense as an expert regarding the reliability of eyewitness identification. According to Dr. Haber, the single most important factor in evaluating the reliability of eyewitness testimony is "whether a witness is observing someone who is a stranger" because it is very difficult for a witness to form a good image of a stranger. Other factors that may affect the reliability of an eyewitness identification include the duration of the event, whether it was light or dark outside, whether the person's face was concealed, the time interval between the event and the identification, and whether the witness felt fearful. If the perpetrator has a weapon, then descriptions of the perpetrator tend to be less accurate because the victim tends to focus on the weapon, not the person's features.
Dr. Haber testified that, by the time witnesses testify in court, they will virtually always say they are confident their identification was correct. Eyewitness identifications tend to be more accurate if "the confidence is something the witness[es] . . . feel at the time they are making the identification." Dr. Haber testified that, when conducting a lineup, it is better to use a blind administrator who does not know the suspect because otherwise the administrator may unconsciously influence the witness regarding which photograph to select.
In Dr. Haber's opinion, a lineup administrator should not verbally communicate with the witness during the identification process because it might suggest to the witness whom to select. In Dr. Haber's opinion, if the administrator were to cover some facial features of one or two of the photographs, then "that's an intervention by the administrator which is completely skewing any of the information that the witness is giving."
C. Verdict and Sentence
A jury found Marchant guilty of three counts of attempted robbery (§§ 211, 664), and four counts of robbery (§ 211). The court sentenced Marchant to a prison term of 148 years to life.
DISCUSSION
I.
The Court Did Not Err in Admitting Ragan's Identification of Marchant
Marchant argues the court "admitted evidence that was the product of an unreliable, unduly suggestive identification process," in violation of his right to due process of law. We disagree.
A. Governing Law and Standard of Review
To determine " ' "whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances." ' " (People v. Thomas (2012) 54 Cal.4th 908, 930 (Thomas).) To set aside a conviction based on an eyewitness identification at trial, the pretrial identification procedure must be "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Simmons v. United States (1968) 390 U.S. 377, 384 (Simmons).)
" ' "The burden is on the defendant to show that the identification procedure resulted in such unfairness that it abridged his rights to due process. [Citation.]" [Citations.]' [Citation.] Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness's identification the identity of the person suspected by the police." (People v. Brandon (1995) 32 Cal.App.4th 1033, 1051-1052.) " ' "Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification." ' " (Thomas, supra, 54 Cal.4th at pp. 930-931.)
B. Ragan's Identification of Marchant at the Photographic Lineup
In his investigation report, Sergeant Justice indicated he created the photographic lineup using images from Marchant's Facebook page because, based on his recent personal observations of Marchant, Marchant appeared "different in hairstyle, facial hair, and/or size" than he appeared in his booking and DMV photographs. As well as using a picture of Marchant, the sergeant "found photos of five other similar looking males on [Marchant's] friends list . . . to create" the photographic lineup. Marchant was the person depicted in photograph number 5 in the six-pack lineup.
Before showing Ragan the photographs, Sergeant Justice reviewed the lineup instructions and explained them to him. Ragan signed the form stating he understood the instructions. According to Sergeant Justice's report, Ragan "looked over the line-up for a short time and then stated he thought that photo #5 and photo #6 looked similar to the suspect, but he was leaning more toward photo #6. He said the subject in photo #6's expression was what had drawn him more towards that photo. He continued to look at the two photos, and I told him he could use papers to block off photos in order to look at them one at a time if he thought that would help. I also told him that I realized several of the subjects (including Marchant) were smiling in the photos, but to try to not let their expression influence him if the suspect was not smiling when he tried to rob him. Ragan tried looking at the photos one at a time, and he said he was initially drawn to photo #5 when he first looked at the line-up but he was still leaning more towards #6 due to the expression on their faces and the size that Marchant's head appeared in the photo. He said that Marchant had cheek bones more like what he remembered than the subject in photo # 6 though. [¶] I then used a piece of paper to cover the mouths of both Marchant and photo #6 at the same time for Ragan to look [at] it in order to take the expression away since he kept saying that was throwing him off. When I did that, Ragan said, 'Oh, that helps.' He then pointed to Marchant's photo and said he was now drawn more to him, since he could no longer see him smiling. He said he now believed Marchant was the suspect who had attempted to rob him. I asked him if he was sure, and he said he was sure that Marchant was the suspect. He said he recognized his eyes, nose, and cheek bones from when he saw him at the drive through. I had him circle the #5 under Marchant's photo and initial it, and then I had him fill out the instruction sheet regarding his identification of Marchant."
At trial, the testimony of Sergeant Justice and Ragan was largely consistent with this account. On cross-examination, Sergeant Justice testified he typically uses a DMV or booking photograph when constructing a six-pack lineup, but he has used photographs from Facebook about two other times "when it is the only photograph or [a] more current photograph of an individual." The sergeant acknowledged that initially Ragan could not positively identify Marchant, but, instead, Ragan narrowed his choices down to photograph numbers 5 and 6. Ragan was leaning towards photograph number 6. Sergeant Justice covered the mouths of the persons in those two photographs, so that Ragan would not focus on the expression on their faces, and then Ragan identified photograph number 5 as the person who tried to rob him.
C. Marchant's Motion to Exclude Ragan's Identification
Before trial, Marchant moved in limine to exclude evidence of Ragan's identification of him. Marchant argued that Sergeant Justice "tainted" the identification procedure, and the evidence was unreliable. The prosecutor conceded "it is not the world's best sixpack," but she argued the other photographs were similar in appearance to Marchant, and Sergeant Justice's conduct was not unduly coercive or suggestive.
The court's tentative ruling was "to allow the evidence with the cross-examination of witnesses," and the court would later make that ruling final, "or request a 402." The court did not conduct an evidentiary hearing, and, at trial, both Ragan and Sergeant Justice testified regarding Ragan's identification of Marchant during the photographic lineup. Ragan identified Marchant in court as the person who attempted to rob the Taco Bell.
Evidence Code section 402 provides in part that "[t]he court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury . . . ."
D. The Identification Procedure Was Not Unduly Suggestive
Marchant contends the sergeant "communicated to Ragan that he was not satisfied with his preference for 6," and he "effectively informed the witness that he should select 5" by covering up the mouths. When the witness chose photograph number 5, the sergeant ended the identification process and did not give the witness "a chance or encouragement to reconsider his choice, as he did when [the witness] was leaning towards 6." Marchant contends the photographic lineup "was unduly suggestive," and the identification evidence was "unreliable under the totality of the circumstances."
We disagree with these contentions. We have reviewed the six photographs presented to Ragan, and they are not unduly suggestive: all six photographs are the same size, they depict Caucasian men with short hair, some have facial hair, and most, including Marchant, are smiling. Marchant's photograph does not stand out. (People v. Cunningham (2001) 25 Cal.4th 926, 990 [finding photographic lineup not unduly suggestive where defendant's photograph was similar to the others]; see also People v. Ybarra (2008) 166 Cal.App.4th 1069, 1082, disapproved on other grounds in People v. Gutierrez (2014) 58 Cal.4th 1354, 1370 [lineup not unduly suggestive where "photographs in a lineup are of males of the same ethnicity and 'generally of the same age, complexion, and build . . . .' "].)
Before viewing the photographs, Sergeant Justice admonished Ragan. The instructions provided in part that "[t]hese photographs may or may not contain a picture of the person who committed the crime," and that Ragan was "in no way obligated to ID anyone." In addition to the written instructions, Sergeant Justice tells witnesses that "it is just as important to rule out anyone in the lineup" who did not commit the crime. These admonishments support the People's contention the lineup was not unduly suggestive. (See Thomas, supra, 54 Cal.4th at p. 932 [describing similar instruction as a "safeguard[] taken to ensure the fairness of the lineup"]; see also People v. Guillebeau (1980) 107 Cal.App.3d 531, 557 [finding photographic lineup was not unduly suggestive "especially in light of the fact that during that procedure the officer advised [the witness] that her assailant might not be among the pictures at all"].)
Sergeant Justice did not improperly suggest to Ragan he should pick photograph number 5. Instead, the facts here are similar to People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), where the witness identified the defendant in a photographic lineup, but said she was uncertain. (Id. at pp. 411-412.) She asked to see a side profile of him, and the officer provided her a single photograph of the defendant in side profile. (Id. at p. 412.) She then positively identified the defendant. (Ibid.) The California Supreme Court found this procedure was not unduly suggestive, explaining that "[d]ue process does not forbid the state to provide useful further information in response to a witness's request, for the state is not suggesting anything." (Id. at p. 413.)
Similarly, here, it was Ragan, not the sergeant, who narrowed the photographs down from six to two, and it was not unduly suggestive for the sergeant to instruct Ragan not to focus on their expressions or to use a piece of paper to cover the mouths of the men in photograph numbers 5 and 6. The sergeant took these actions in response to statements by the witness that he was having trouble deciding between the two photographs. The sergeant's actions were akin to providing "useful further information in response to a witness's request." (Ochoa, supra, 19 Cal.4th at p. 413.)
Marchant contends that having the witness write down the reasons for his choice "cemented the identification," and that it was "a foregone conclusion" Ragan would identify Marchant in court after the police told Ragan they had seized a gun. We disagree. "Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation." (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) Marchant's contentions are speculative, and they are undermined by Ragan's testimony that he did not feel the sergeant was suggesting who to pick, and that he was "not going to pick someone unless . . . [he was] 100 percent sure." Contrary to Marchant's claim that the sergeant ended the identification process when Ragan chose photograph number 5, the sergeant's report indicates he asked Ragan if he was sure before ending the process. On the night of the robbery, the police took Ragan to two infield showups, and, at each one, Ragan stated the detained individual was not the person who attempted to rob the Taco Bell, which supports the People's contention Ragan "was not inclined to make an identification simply because the police presented him with a suspect." In sum, this pretrial identification procedure was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Simmons, supra, 390 U.S. at p. 384.)
E. Ragan's Identification of Marchant Was Reliable
Even if we assume the photographic lineup was unduly suggestive, suppression was not required if "the identification itself was nevertheless reliable under the totality of the circumstances." (Thomas, supra, 54 Cal.4th at p. 930.) Factors to consider include "the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (Ibid.)
Here, the record demonstrates Ragan's identification of Marchant was reliable. At the Taco Bell restaurant, Ragan was paying attention to the man because of his odd response when ordering. When the driver pulled up to the window, Ragan told him how much he owed, and observed the man appearing to search for his wallet. Ragan was at "eye level" with the driver, who was in a "higher" vehicle. The man pointed a gun at Ragan, and Ragan left the area after viewing the person for "[a] second or two." On cross-examination, Ragan testified he viewed the man for about 10 to 15 seconds at the drive-through window while the man was searching for his wallet, but Ragan acknowledged it may have seemed longer than it actually was.
Marchant attaches to his reply brief "second-by-second print-outs of the video recording of the incident," which, in our view, hurt rather than help his case. These print-outs indicate Ragan had sufficient time to form a reliable mental impression of the person he saw at the drive-through window. They show Ragan looking at the driver for approximately 14 seconds, and then alternating between looking at his monitor and at the driver for a further 9 seconds, before fleeing from the area of the drive-through window. Thus, Regan had a good opportunity to "view the suspect at the time of the offense." (Thomas, supra, 54 Cal.4th at p. 930.)
In his reply brief, Marchant claims Ragan "admitted that he was not really looking at the man's face but at what he was doing when he was looking for his wallet." The record does not support this claim. Instead, Ragan testified he "wasn't really looking at the facial hair, it was more what he was doing, like his face and then what he was doing when he was looking for his wallet." (Italics added.)
Other factors also support the reliability of Ragan's identification. Sergeant Justice administered the photographic lineup to Ragan less than one week after the incident. On the night of the attempted robbery, Ragan described the person as a "white male," in his "mid forties," with "dirty" facial hair, a round shaped face, and "scruffy brown hair." About a week later, before being shown the photographic lineup, Ragan described the person as "a white male adult in his 40's, with a thin unshaven appearing beard, a husky build and a round shaped face, with short almost shaved brown hair." Other than the reference to "scruffy brown hair," these descriptions resemble the photograph of Marchant in the photographic lineup. (Thomas, supra, 54 Cal.4th at p. 930.)
While Ragan may have hesitated before identifying Marchant during the photographic lineup, he did not want to pick someone unless he was "100 percent sure." Once Ragan identified Marchant, he did not recant his identification, and he was certain Marchant was the person who attempted to rob the Taco Bell. The trial court did not err in admitting the evidence of Ragan's identification of Marchant.
Where the identification was reliable, we do not address Marchant's argument he was prejudiced by it.
F. Muller's Identification of Marchant Was Reliable
Marchant also contends Muller's identification of him as the person who robbed the Flamingo Hotel in Santa Rosa was unreliable. The People respond that Marchant makes this argument "for the first time on appeal," but they do not expressly contend the argument is forfeited. Therefore, we consider it.
Nevertheless, we reject Marchant's argument. When Muller first noticed the man in the lobby of the Flamingo Hotel, Muller was standing about 30 feet away, but the person walked towards Muller, and Muller was standing "within arm[']s reach of him" when the person demanded his wallet. Muller was close enough to the person to hand him a walkie-talkie, and Muller made eye contact with him. Muller noticed the man had facial hair, a "greyish blond" beard, and he "looked like he hadn't shaved in a couple [of] weeks." Two weeks later, Muller identified Marchant in a six-pack photographic lineup, describing his choice as "a no brainer." Muller also made an in-court identification of Marchant. The court did not err in admitting either Muller's or Ragan's identification of Marchant.
II.
There Was Sufficient Evidence Marchant Attempted to Rob Tan's Donuts (Counts 1, 2)
Marchant contends there was insufficient evidence he attempted to rob Tan's Donuts on February 20, 2015, one week before the other robberies, and he also argues there was insufficient evidence he attempted to rob Tan. We disagree.
A. Standard of Review
"In reviewing a claim for sufficiency of the evidence, . . . [w]e review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value— supporting the decision . . . . [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639 (Jennings).) " 'Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 521 (Mohamed).)
B. There Was Sufficient Evidence Connecting Marchant to the Attempted Robbery of Tan's Donuts (Counts 1, 2)
Marchant claims "[t]he evidence . . . of the identity of the man who attempted to rob the doughnut shop was that he was a light-skinned black man in his late thirties . . . ." The record does not support Marchant's claim. On cross-examination, defense counsel asked Tan if she remembered telling the police "that a light skinned black man in his late thirties robbed you?" Tan responded that she did not see the person, and she "didn't tell the police he's white or black or how old or something at all." Tan's husband, who, according to Tan, does not speak English or have a good memory, did not testify.
Nevertheless, there was evidence connecting Marchant to the attempted robbery of Tan's Donuts. Walmart video footage depicted a man in a hooded sweatshirt walking close to Tan's Donuts at the time it was robbed. The same footage depicted a light-colored minivan pulling into a parking spot close to Tan's Donuts, and a man wearing a hooded sweatshirt and a hat getting out of the minivan, and walking towards the store. The same person is later shown running away from the shop, entering the minivan, and leaving. The man in the video was wearing black shoes with white soles.
Police discovered Marchant was the registered owner of an older model Dodge Caravan, he lived close to Tan's Donuts, and police observed him getting into a vehicle similar to the one depicted in the videos. Police observed Marchant wearing black shoes with thick white soles that matched the images of the shoes seen on the suspect in the videos. Inside Marchant's house, police discovered a hooded sweatshirt. The man who attempted to rob Tan's Donuts had a gun, and, inside Marchant's minivan, police recovered a Beretta pellet gun that looked like a real gun. This evidence connecting Marchant to the attempted robbery of Tan's Donuts is not " 'so weak as to constitute practically no evidence at all.' " (Mohamed, supra, 201 Cal.App.4th at p. 521.)
C. There Was Sufficient Evidence Marchant Attempted to Rob Tan (Count 1)
Marchant contends there was insufficient evidence he attempted to rob both Tan and her husband because Tan "was in the back of the doughnut shop when the man entered." Marchant contends there was "no evidence of use or attempted use of force or fear against her."
We are not persuaded by this argument. Marchant was charged, in count 1, with the attempted robbery of Tan, and, in count 2, with the attempted robbery of her husband. "Robbery is the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his [or her] will, accomplished by means of force or fear." (§ 211.) The crime of attempt occurs when there is "a specific intent to commit the crime, and a direct but ineffectual act done towards its commission." (§ 21a.) Multiple convictions for attempted robbery are permissible when the number and identities of the intended victims can be determined. (People v. Bonner (2000) 80 Cal.App.4th 759, 764-765 (Bonner).)
Here, there was sufficient evidence the attempted taking was accomplished by means of force or fear against Tan because she was only about 21 feet from the front of the store, she heard the store's door open and the man yell "give me the money," and she hung up her 911 call because she was scared. The jury could reasonably infer that, when Marchant made his demand, he was aware of Tan's presence because Marchant lived in "the neighborhood next to Tan's Donuts," and he attempted to rob the store at approximately 4:30 a.m., when the store first opened. At that time, the only people in the store were Tan and her husband, who had been there since midnight baking doughnuts, and who were the only people working at the store that early. The Walmart video footage depicts a man lingering for some time in front of the store before entering, from which the jury could reasonably infer Marchant knew who was inside, and their approximate locations. Based on this evidence, and even though Tan was not in the front of the store, the jury could reasonably infer Marchant intended to subject both occupants to force or fear when he entered the store and demanded money. (Bonner, supra, 80 Cal.App.4th at p. 765 [where there was evidence of intent to rob two victims and acts beyond mere preparation, defendant properly convicted of two counts of attempted robbery].)
In his reply brief, Marchant contends Bonner supports his contention there was insufficient evidence he attempted to rob Tan. Marchant relies on the Bonner court's observation that "often, when an attempted robbery is interrupted before the robber is in the presence of the victims, no meaningful way exists to determine their number and only a single count of attempted robbery would be proper." (Bonner, supra, 80 Cal.App.4th at pp. 764-765.) This observation does not assist Marchant because there was circumstantial evidence Marchant knew who was inside the store. Tan was only about 21 feet from the front of the store when Marchant entered it, and Marchant put his plan to rob the store into action by entering it early in the morning and demanding money. The jury could reasonably infer Marchant attempted to rob not only Tan's husband, but also Tan. (Jennings, supra, 50 Cal.4th at pp. 638-639.)
III.
There Was Sufficient Evidence Marchant Robbed Garcia (Count 5) and Attempted
Robbery Was Not a Lesser Included Offense
Based on the incident at the Shell gas station, Marchant was convicted of robbery against both Olvera and Garcia (Counts 4, 5). Marchant contends there was insufficient evidence to support his conviction of robbery against Garcia, as alleged in count 5, because Garcia "had finished her shift . . . and was no longer responsible for the money." He also contends the court should have instructed the jury on attempted robbery as a lesser included offense because Olvera testified Marchant asked Garcia for money, and she told him she did not have any. We disagree with these contentions.
A. There Was Sufficient Evidence Garcia Was a Robbery Victim
All employees on duty have constructive possession of their employer's property, and they may be separate victims of a robbery. (People v. Scott (2009) 45 Cal.4th 743, 746 (Scott).) Persons other than employees may be robbery victims if they have a " 'special relationship' with the owner of the property sufficient to demonstrate that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (Id. at p. 753.) Put another way, the question is whether the prospective victim "may be expected to resist the taking." (Id. at p. 757.)
Here, Garcia was a cashier at the Shell gas station. Both she and Olvera were present when the robbery occurred, even though Garcia was in the process of "checking out." Video footage shows both coworkers standing behind the counter inside the gas station store during the robbery. Garcia was standing only about "four [or] five paces away" from the robber. When Olvera opened the cash register, the robber came behind the counter and took $108. Garcia was scared he would shoot both of them.
Based on this evidence, it was reasonable for the jury to infer Garcia was still "on duty" at the time of the robbery, or, even if her shift had ended, she had a special relationship with the owner such that she could be "expected to resist the taking." (Scott, supra, 45 Cal.4th at pp. 754, 757.) As noted by the California Supreme Court, "those who commit robberies are likely to regard all employees as potential sources of resistance, and their use of threats and force against those employees is not likely to turn on fine distinctions regarding a particular employee's actual or implied authority." (Id. at p. 755.) Accordingly, there was sufficient evidence Garcia was a victim of the robbery at the Shell gas station, as alleged in count 5.
B. Attempted Robbery Was Not a Lesser Included Offense Under Count 5
With regard to the same count, Marchant argues the court should have instructed the jury that it could find him guilty of the lesser included offense of attempted robbery against Garcia. This argument is meritless.
Trial courts must instruct the jury on lesser included offenses, "when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged." (People v. Breverman (1998) 19 Cal.4th 142, 154.) There is no duty to instruct on a lesser included offense "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime (for example, when the only issue at trial is the defendant's identity as the perpetrator)." (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
Here, Marchant was charged in count 5 with the robbery of Garcia. There was no evidence the offense charged in count 5 was less than robbery because Marchant took $108 from the cash register in the Shell gas station in the immediate presence of Garcia after threatening both her and Olvera with a gun. While Olvera testified that the robber also asked Garcia for money, this testimony does not show that Garcia was not a victim of Marchant's robbery of the Shell gas station. (Scott, supra, 45 Cal.4th at pp. 755-756.) Accordingly, under count 5, the court was not required to instruct the jury regarding attempted robbery as a lesser included offense.
IV.
The Court Did Not Abuse Its Discretion Under the Three Strikes Law
Marchant contends the court committed errors during sentencing. He argues the court failed to recognize it had the discretion to strike prior strike convictions "as to individual counts," and that the court erred in imposing sentencing enhancements. We begin with a review of the sentencing proceedings. Then, we address Marchant's contentions regarding the court's application of the three strikes law. In the next section, we address the court's imposition of sentencing enhancements.
A. Sentencing Proceedings
After the jury's verdict, the prosecutor introduced evidence that Marchant suffered two prior convictions. In August 1989, the Sonoma County Superior Court convicted Marchant for committing residential burglary. Seven months later, the San Mateo Superior Court convicted Marchant for committing first degree burglary. The court found true the allegations that Marchant suffered two prior convictions, and that they were prior strike offenses (§ 1170.12) and serious felonies (§ 667, subd. (a)).
Before sentencing, Marchant filed a statement in mitigation and requested the court to strike his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The prosecutor filed a statement in aggravation, and opposed Marchant's Romero motion. At the sentencing hearing, after reviewing and considering the relevant factors, the court denied the Romero motion.
Applying the three strikes law, the court sentenced Marchant to four consecutive terms of 25 years to life (counts 1, 3, 4, and 6) and three concurrent terms of 25 years to life (counts 2, 5, and 7). The court added to each of the four consecutive terms two five-year enhancements for serious felonies, under section 667, subd. (a), and two one-year enhancements for prior prison terms, under section 667.5, subd. (b). In total, then, the court sentenced Marchant to 148 years to life in prison.
B. Striking Prior Convictions
Under the three strikes law, a court may dismiss or strike an allegation or finding that a defendant has previously been convicted of a serious and/or violent felony. (Romero, supra, 13 Cal.4th at pp. 529-530; People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) "[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation . . . is subject to review for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) A trial court does not abuse its discretion unless its decision is "so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
The three strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528.) It "establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court 'conclud[es] that an exception to the scheme should be made . . . .' " (People v. Strong (2001) 87 Cal.App.4th 328, 337-338, fn. omitted.) "[T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.)
"[T]he three strikes law . . . creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal. 4th at p. 377-378.) " 'It is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations." [Citation.] . . . '[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Ibid.)
C. The Court Did Not Abuse Its Discretion by Declining to Strike Marchant's Prior Convictions
Marchant contends the trial court was not aware of its discretion to dismiss his prior serious felony convictions "as to individual counts." Marchant, who is 50 years old, contends the court's imposition of a "disproportionate" 148-year sentence indicates the court was unaware of its ability to do so.
We are not persuaded. Marchant relies primarily on People v. Garcia (1999) 20 Cal.4th 490, where the California Supreme Court held that "a trial court in a Three Strikes case may exercise its discretion under section 1385, subdivision (a), so as to dismiss a prior conviction allegation with respect to one count, but not with respect to another." (Id. at pp. 503-504.) In Garcia, however, the California Supreme Court reviewed a trial court's decision to strike prior conviction allegations. (Id. at pp. 492-493.) Here, the trial court determined it would not strike the prior strikes. In other words, the procedural posture of Garcia on appeal is the opposite of the instant case. Here, having decided it would not strike Marchant's prior convictions, there was no need for the court to consider or address whether it would strike them as to individual counts. (See Garcia, supra, 20 Cal.4th at p. 499 ["in a Three Strikes case . . . when a court has struck a prior conviction allegation, . . . a court may consider it when sentencing the defendant for other convictions, including others in the same proceeding"].) Thus, based on the court's failure to mention Garcia, we cannot infer the court was unaware of its ability to strike prior convictions as to individual counts. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434 ["On a silent record in a post-Romero case, . . . a trial court . . . is presumed to have correctly applied the law"].)
Marchant contends the length of his sentence indicates the court's unfamiliarity with options it could have exercised under the three strikes law. We disagree. The court imposed a long sentence because the jury convicted Marchant of seven counts of robbery or attempted robbery, he had an extensive criminal record that spanned three decades, and his current offenses were his most serious ones to date. Marchant had seven misdemeanor convictions, at least seven felony convictions, numerous parole and probation violations, and, for one of his prior convictions, he received a sentence of 25 years to life, but the conviction was reversed on appeal. Accordingly, Marchant "appears to be 'an exemplar of the "revolving door" career criminal to whom the Three Strikes law is addressed.' " (Carmony, supra, 33 Cal.4th at p. 379.)
The intent of the Legislature in enacting the three strikes law was "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses." (§ 667, subd. (b).) In his reply brief, Marchant concedes "the result might have been the same" if the court had been aware of its discretion to strike prior convictions as to some counts but not others. This concession is an acknowledgment the court correctly applied the three strikes law. That the court could also have applied the law in other ways does not show its application was unreasonable. (Carmony, supra, 33 Cal.4th at p. 378 ["the three strikes law . . . creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper"].)
Marchant argues he had no convictions for crimes involving "actual violence or physical harm to anyone," but the trial court found otherwise. At his sentencing hearing, in response to Marchant's statements that he never hurt anyone, the court noted he had a conviction for battery in 1993. The court found Marchant's current offenses were "extremely violent. Robbery with a realistic looking gun, those people thought it was a real gun . . . . You went to four different businesses, seven people were dramatically affected by your behavior. The audio at the convenience store [was] horrifying. That threatening behavior put those victims in serious fear for their safety . . . So the newest offenses are the most serious, the most egregious of all that you've committed over your three-and-a-half decades of criminal behavior." It was proper for the court to consider the nature and circumstances of Marchant's current offenses when addressing his request to strike his prior convictions. (Williams, supra, 17 Cal.4th at p. 161.)
Marchant faults the court for failing to consider what his " 'prospects' " would be after he had served "an appreciable number of years in prison and had reached an advanced age." But the court did note Marchant had good employment skills, a supportive family, and a willingness to participate in drug treatment. Nonetheless, the court added that "the best indication of what you are going to do in the future is what you've done in the past. And you've done over and over and over again the same type of behavior, which has now escalated to a point where you are a danger to the community." Clearly, " 'the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the [three strikes] law.' " (Carmony, supra, 33 Cal.4th at p. 378.) The court's decision not to strike Marchant's prior convictions was neither irrational nor arbitrary, and it does not constitute an abuse of discretion.
V.
The Court Should Not Have Imposed Eight Section 667 .5, Subdivision (b) Enhancements
Marchant contends the court committed errors when applying sentencing enhancements. As noted ante, to each of Marchant's four consecutive terms of 25 years to life, the court added two section 667, subdivision (a) enhancements for serious felonies, and two section 667.5, subdivision (b) enhancement for prior prison terms. The People concede "that the eight prior prison term enhancements (two per indeterminate term) were erroneously applied to his sentence." They contend we should strike four of the prior prison term enhancements, and the other four should be imposed, but stayed. We agree.
A. Sentencing Enhancements
A sentence enhancement is " 'an additional term of imprisonment added to the base term.' " (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124 (Gonzalez).) "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (§ 667, subd. (a).) "[U]nder the Three Strikes Law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence." (People v. Williams (2004) 34 Cal.4th 397, 405.)
The Penal Code also provides courts must enhance "prison terms for new offenses because of prior prison terms." (§ 667.5.) "[W]here the new offense is any felony for which a prison sentence . . . is imposed . . . , in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term . . . ." (§ 667.5, subd. (b).) A "prior separate prison term" means "a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . ." (§ 667.5, subd. (g).) "[M]ultiple prior convictions served concurrently constitute one separate prison term for which only one sentence enhancement can be imposed." (People v. Cardenas (1987) 192 Cal.App.3d 51, 56 (Cardenas).)
B. The Court Should Not Have Imposed Four of the Section 667.5(b) Enhancements Because Marchant Has Served One Prison Term
The People concede the court should not have imposed four of the one-year prior prison term enhancements because Marchant's two prior serious felony convictions resulted in only one prior prison term.
We agree with this concession. When the Sonoma County Superior Court convicted Marchant for residential burglary in August 1989, the court suspended Marchant's four-year sentence, and committed him to the California Rehabilitation Center for drug treatment. Seven months later, Marchant was again convicted of burglary, and the San Mateo Superior Court sentenced Marchant to four years in prison, with the sentence "to run concurrent with any prior uncompleted sentence(s)." Subsequently, in Sonoma County, the court reinstated criminal proceedings, and sentenced Marchant to a four-year term, with "[t]his term to run concurrent with" Marchant's sentence in the San Mateo case. Because these prison terms ran concurrently, they constitute "one separate prison term for which only one sentence enhancement can be imposed." (Cardenas, supra, 192 Cal.App.3d at p. 56.) Therefore, the court should not have imposed four of the section 667.5, subdivision (b) enhancements, and we order them stricken.
C. The Court Should Have Imposed, but Stayed, the Four Remaining Section 667.5, Subdivision (b) Enhancements
The People also concede the court should not have applied any prior prison term enhancements because the court also applied five-year serious felony enhancements for the same two prior convictions under section 667, subdivision (a)(1). Citing this court's opinion in People v. Brewer (2014) 225 Cal.App.4th 98 (Brewer), the People contend the remaining four section 667.5, subdivision (b) enhancements "must be stayed." In his reply brief, Marchant does not address this contention. Instead, Marchant mischaracterizes the People's position, stating "[w]e agree that all of the 1-year prior-prison-term enhancements under . . . section [667.5, subdivision (b)] should be dismissed under section 1385." In the conclusion of both his opening brief and his reply brief, Marchant states "the prior-prison-term enhancements should be dismissed or stayed."
We conclude the remaining four section 667.5, subdivision (b) enhancements should be stayed, not stricken. A court cannot impose enhancements under both sections 667, subdivision (a)(1) (prior serious felony conviction) and 667.5, subdivision (b) (prior prison term) based on the same prior conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1153 (Jones).) In Jones, the trial court imposed both a five-year enhancement under section 667, subdivision (a), and a one-year enhancement under section 667.5, subdivision (b) based on the same prior felony conviction. (Id. at p. 1145.) The Jones court held "the most reasonable reading of subdivision (b) of section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Id. at p. 1150.) With no discussion of the proper remedy, the California Supreme Court remanded the case to the trial court with directions to strike the section 667.5, subdivision (b) enhancement. (Id. at p. 1153.) However, in Gonzalez, supra, 43 Cal.4th 1118, when considering multiple firearm enhancements, the California Supreme Court held the lesser enhancements should be stayed, not stricken, which serves the purpose of making the prohibited enhancements available if the longer ones are later found invalid. (Id. at p. 1129.)
Where a trial court cannot impose multiple sentencing enhancements for the same prior conviction, we conclude the better approach is to stay, not strike, the lesser enhancements. Rule 4.447 of the California Rules of Court authorizes a stay when an enhancement that would otherwise have to be imposed or stricken is prohibited by law. (See Brewer, supra, 225 Cal.App.4th at p. 104; People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9; People v. Lopez (2004) 119 Cal.App.4th 355, 364-365.) Although the California Supreme Court ordered the section 667.5, subdivision (b) enhancements stricken (Jones, supra, 5 Cal.4th at p. 1153), it did not discuss the proper remedy, or California Rules of Court, rule 4.447, and cases are not authority for propositions not considered. (Lopez, at p. 364, citing People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Staying the section 667.5, subdivision (b) enhancements preserves the possibility of imposing a stayed term should the section 667, subdivision (a)(1) enhancements be reversed on appeal. (See Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2017) § 12:5, p. 12-19 ["In view of the Supreme Court's treatment of multiple enhancements in . . . [Gonzalez], likely the better practice is to impose, then stay, any lesser enhancement under the authority of Rule 4.447"].) We order the court to impose, but stay, four of the section 667.5, subdivision (b) enhancements.
DISPOSITION
The judgment is modified to strike four of the section 667.5, subdivision (b) prior prison term sentencing enhancements because Marchant's two prior serious felony convictions did not result in separate prison terms. The superior court shall impose, but stay, the four remaining section 667.5, subdivision (b) enhancements. The result is an effective prison sentence for Marchant of 140 years to life. The superior court is ordered to prepare and forward to California's Department of Corrections and Rehabilitation an abstract of judgment with these modifications. In all other respects, we affirm.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.