Opinion
E066424
03-12-2018
THE PEOPLE, Plaintiff and Respondent, v. JONNABETH AYALA MORALES, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1501211) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Jonnabeth Ayala Morales, guilty as charged of two counts of robbery (Pen. Code, § 211; counts 1-2), two counts of attempting to dissuade witnesses (Pen. Code, §§ 664, 136.1, subds. (a)-(c); counts 3-4), and one count of throwing an object capable of doing serious bodily harm at a vehicle (Veh. Code, § 23110, subd. (b); count 5). The jury also found sentencing enhancements true in counts 1 through 4—that defendant personally used a firearm in the robberies (Pen. Code, § 12022.53, subd. (b)), and acted maliciously, and either used or threatened to use force or acted to obtain something of value in the witness dissuasion counts (Pen. Code, § 136.1, subd. (c)).
All further statutory references are to the Penal Code unless otherwise indicated.
Before sentencing, defendant entered guilty pleas in two other felony cases, Riverside County Superior Court case Nos. INF1200367 and INF1501204. The record indicates that the plea agreement, which is not part of the record on appeal, required defendant to serve 19 years eight months on the other cases and that this sentence was to be imposed concurrently to his sentence in this case. In this case, defendant was sentenced to 22 years in prison, and his 19-year eight-month sentence in the other cases was imposed concurrently to the 22-year sentence.
In this appeal, defendant claims multiple prejudicial instructional errors requires reversal of his convictions and sentencing enhancements. We conclude that defendant's conviction in count 5 for violating Vehicle Code section 23110, subdivision (b), and the personal use enhancements on the robbery convictions in counts 1 and 2 must be reversed based on instructional error. But we affirm defendant's robbery and witness dissuasion convictions in counts 1 through 4. We remand the matter for resentencing and affirm the judgment in all other respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. Mariah S.'s Testimony
Between 1:00 and 2:00 a.m. on May 17, 2015, Mariah S. and her boyfriend, Mason S., were lying in the backseat of Mariah's parked car in Desert Hot Springs, smoking marijuana and sleeping, when another car pulled alongside Mariah's car. The driver, whom Mariah and Mason later identified as defendant, got out of the car, walked to the front of Mariah's car, and asked if it was "Pablo's car." One or two other people were in defendant's car, and defendant was saying they were going to "light . . . up" Mariah's car, or what he believed was Pablo's car.
Just as Mason began saying it was not Pablo's car, defendant threw a brick or rock through Mariah's front windshield. Mason then began yelling, and defendant came to the passenger side of Mariah's car, lifted his shirt, and showed he had a gun in his waistband. Defendant was "showing . . . off" the gun and this "terrified" Mariah. After he displayed the gun, defendant got back into his car and drove away.
Around two minutes later, defendant and his passenger or passengers again drove up beside Mariah's car. Defendant got out of the car again, told Mariah and Mason he did not want them to call the police because "there was a lot going on," and demanded their cell phones. Mariah felt threatened because she could see "the gun" on the lighted console of defendant's car, but the gun was never pointed at her or at Mason. Defendant took Mason's wallet, Mariah's white LG cell phone, and Mason's white HTC cell phone, then drove away a second time.
Before defendant took the cell phones and wallet, Mariah asked defendant if he would leave the phones at some nearby location where she and Mason could find them, and she suggested several locations. After defendant drove away the second time, Mason and Mariah drove to several places for around 10 minutes, looking for their phones, but they could not find them. They then drove to an AM/PM store where Mason called 911.
2. Defendant's Infield Identification and Arrest
After officers responded to Mason's 911 call, Mariah and Mason were taken in separate police cars to an infield show up at a residence. There, from the separate police cars, Mariah and Mason each identified defendant as the driver of the other car and as the person who both threw the brick and robbed them, and they also identified the car defendant had been driving.
An officer had spotted a car matching the description given by Mariah and Mason, called for backup officers, and followed the car to the residence. The officer saw the car pull into the driveway and found defendant standing near the front door. Mason's cell phone was on the ground near the front door, and Mason's wallet was in the car. Following the infield identifications, defendant was arrested and taken into custody.
Before the infield show up, defendant told the officer who followed him that the car in the driveway belonged to his cousin, Anthony Castillo, and that Castillo had just driven defendant to the residence and walked away. Castillo was not at the residence and the officer did not see anyone leaving the residence. The car had not been reported stolen, and Castillo was not its registered owner. Defendant also told the officer he did not live at the residence, he did not know anyone who did, and he did not explain what he was doing there at 3:30 a.m. No weapons were found on defendant. Another officer who arrived at the residence recognized defendant from previous contacts with him and identified defendant in court as the robbery suspect who was at the residence.
3. Mason S.'s Testimony
Mason testified that defendant was not the person who threw a brick or committed the robberies. Defendant was a "close member" of Mason's family; they were "play cousins" and had grown up together. The robber had a gun, and Mason believed that the robber pointed the gun at Mariah but denied that the robber pointed the gun at Mason. Mason "saw the barrel of the gun looking out a [car] window and someone asking [him] for [his] stuff."
When the brick was thrown, there were two people in front of Mariah's car, and the person with the gun in his waistband may not have been the same person who threw the brick. Mason acknowledged he identified defendant at the infield show up as the person who both threw the brick and committed the robberies, but claimed he was "coerced" into identifying defendant and insisted that the person he identified was not defendant. The day before he testified, Mason told the prosecutor he was "100 percent" certain that the person he identified was the person who threw the brick and committed the robberies.
Mason acknowledged calling 911 after the robbery, and an audio recording of the 911 call was played for the jury. Mason told the 911 operator that "some guys" rolled up in a Honda Civic, threw a rock at the window, "kinda pointed a gun at us" and "took our phones." When the dispatcher asked whether Mason saw what kind of gun "they" pointed at him, Mason answered, "Um they never [. . .] the driver on the way back had it rested on the door[.] I only saw the barrel."
Mason testified he meant to tell the 911 operator that the gun was pointed at Mariah but not at him. He also told the 911 operator that he did not see the driver, but he described one of the passengers to the operator as a short Hispanic man with a small build. This matched defendant's general description, but Mason claimed defendant had a larger build. For three weeks before trial, Mason had been telling the prosecutor's office he was not going to testify because defendant was not the person he identified.
At the infield show up, Mason identified defendant based on the muscle shirt he was wearing and the car in the driveway. But Mason told the 911 operator that the man he saw was wearing a blue and yellow jersey and tan shorts.
Defendant was bailed out of jail, and the day after the crimes defendant contacted Mason and spoke with him. Defendant had Mariah's cell phone in his possession and gave it to Mason. According to Mason, someone had tried to sell the phone to defendant's aunt. B. Defense Case
Based on Mason's testimony, the defense claimed defendant was not the person who committed the crimes or personally used the firearm.
III. DISCUSSION/CLAIMS OF INSTRUCTIONAL ERROR
Defendant claims multiple prejudicial instructional errors require reversal of all of his convictions and the personal use enhancements in counts 1 and 2. As noted, we agree that defendant's conviction for throwing the brick (count 5) and the personal use enhancements must be reversed, but we affirm defendant's robbery and witness dissuasion convictions in counts 1 through 4.
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) Following an off-the-record discussion with the court concerning the jury instructions, counsel acknowledged on the record that they had agreed on the instructions the court would be giving and that they were not requesting any additions, corrections, or amendments to the instructions.
Notwithstanding counsel's stipulation, the court had a duty to instruct the jury sua sponte on all essential elements of the charged offenses (People v. Mil (2012) 53 Cal.4th 400, 409) and on the elements of the personal use and other enhancement allegations (People v. Clark (1997) 55 Cal.App.4th 709, 714-715). The court also had a duty to instruct sua sponte on the general principles of law governing the case (People v. Breverman (1998) 19 Cal.4th 142, 154), that is, "'to see to it that the jury [was] "adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law"'" (People v. Friend (2009) 47 Cal.4th 1, 70). A. The Failure to Instruct on Unanimity as Part of the Uncharged Conspiracy Instruction
Defendant first claims the court prejudicially erred in failing to give a unanimity instruction as part of its instructions on uncharged conspiracy. We conclude the court did not have a duty to instruct on unanimity, sua sponte, as part of the uncharged conspiracy instruction, and any error in failing to instruct on the unanimity portion of the instruction was harmless beyond a reasonable doubt.
The jury was instructed on uncharged conspiracy pursuant to CALCRIM No. 416 as a theory of defendant's liability for each of the charged crimes. Defendant complains that the court omitted a bracketed portion of CALCRIM No. 416 which tells the jury it must unanimously agree on what crime or crimes defendant agreed and intended to commit pursuant to the uncharged conspiracy. He argues that the omission of the unanimity portion of the uncharged conspiracy instruction constituted federal constitutional error because it lessened or eliminated the prosecution's burden of proof on the specific intent element of all of the charged crimes.
The bracketed portion of CALCRIM No. 416 on unanimity states: "[The People contend that the defendant[s] conspired to commit one of the following crimes: ___ <insert alleged crime[s]>. You may not find (the/a) defendant guilty under a conspiracy theory unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes, and you all agree which crime (he/she) conspired to commit.]"
1. The Duty to Instruct on Unanimity in an Uncharged Conspiracy
The trial court has a duty to instruct sua sponte on the elements of an uncharged conspiracy when the prosecution has not charged the crime of conspiracy but has introduced and relied on evidence of a conspiracy to prove the defendant is guilty of another offense. (People v. Williams (2008) 161 Cal.App.4th 705, 709 (Williams).) CALCRIM No. 416 directs the jury to determine whether the prosecution has proved the elements of an uncharged conspiracy and that the defendant was a member of that conspiracy. (Williams, supra, at p. 710.) A conspiracy consists of two or more persons conspiring or agreeing to commit any crime, together with proof of the commission of an overt act by at least one of the members of the conspiracy, in furtherance of the conspiracy. (People v. Vargas (2001) 91 Cal.App.4th 506, 551.) Each member of the conspiracy must harbor two specific intents: a specific intent to agree to commit the target offense of the conspiracy, and a specific intent to commit that offense. (People v. Jurado (2006) 38 Cal.4th 72, 123.) Thus, when a conspiracy is alleged to prove a defendant's liability for a specific offense, the jury must agree that the defendant both agreed and intended to commit that specific offense. (People v. Russo (2001) 25 Cal.4th 1124, 1131-1132.)
Unanimity instructions are designed to eliminate the danger that the jury will convict the defendant of an offense even though the jurors did not unanimously agree that the defendant committed that offense. (People v. Hernandez (2013) 217 Cal.App.4th 559, 569 (Hernandez).) The trial court has a duty to give a unanimity instruction sua sponte when "there is a risk the jury may divide on two discrete crimes," or two acts, each constituting one crime, and the prosecution fails to elect among the crimes. (Id. at p. 570.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or . . . 'theory' whereby the defendant is guilty." (People v. Russo, supra, 25 Cal.4th at p. 1132.)
As the People point out, a unanimity instruction is also not required to be given when the continuous-course-of-conduct "exception" applies. (See People v. Crandell (1988) 46 Cal.3d 833, 875.) This exception applies when "(1) 'the acts [or crimes] are so closely connected in time as to form part of one transaction,' (2) 'the defendant tenders the same defense or defenses to each act [or crime],' and (3) 'there is no reasonable basis for the jury to distinguish between them. [Citations.]'" (People v. Lueth (2012) 206 Cal.App.4th 189, 196.)
As this court observed in Lueth, "it is not at all clear that [the continuous-course-of conduct exception] is truly an exception. It would seem more accurate to say that, in this situation, a unanimity instruction is required, but the failure to give one is harmless." (People v. Lueth, supra, 206 Cal.App.4th at p. 196; People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1589 [failure to give unanimity instruction harmless if record shows "'no rational basis . . . by which the jury could have distinguished between [the acts which would constitute the offenses].'"].)
Based on these principles, we conclude that when the prosecution relies on evidence of an uncharged conspiracy to prove the defendant's guilt of a specific offense, the court has a duty to give a unanimity instruction sua sponte, as part of the uncharged conspiracy instruction, when: (1) the evidence shows there was a conspiracy to commit more than one offense and (2) there is a risk that the jury will not unanimously agree on the offense or offenses the conspirators agreed to commit. (People v. Russo, supra, 25 Cal.4th at p. 1134-1135; Williams, supra, 161 Cal.App.4th at p. 710.) There is no risk that the jury will not agree on the offense or offenses the conspirators agreed to commit when (1) the evidence shows that all of the alleged offenses or acts were part of a continuous course of criminal conduct, (2) the defendant offers the same defense or defenses to the alleged target offenses, and (3) there is no reasonable basis for the jury to distinguish between the alleged target offenses. In these circumstances, the court does not have a duty to instruct on unanimity sua sponte—and if it does and it fails to do so, the error will be harmless. (People v. Lueth, supra, 206 Cal.App.4th at p. 196.)
As given, CALCRIM No. 416 told the jury that the People had to prove defendant "intended to agree and did agree with one or more of the people in the car to commit any of the charged crimes." (Italics and underlining added.) Thus, the uncharged conspiracy instruction alleged that there was a conspiracy to commit more than one intended or target crime, but the jury was not instructed pursuant to the bracketed portion of the instruction that it had to unanimously agree that defendant conspired or agreed to commit at least one of these crimes, and that it also had to unanimously agree which crimes he intended to commit.
But the court did not have a duty to give the unanimity portion of CALCRIM No. 416 sua sponte, because there was no risk that the jury would not unanimously agree on which of the alleged target offenses defendant agreed and intended to commit pursuant to the conspiracy. All of the evidence showed that the alleged conspirators—the two or three people in the car that drove up alongside Mariah's car—acted pursuant to a single course of criminal conduct and shared the same criminal intent to commit all of the alleged target and charged crimes. Mariah's trial testimony showed that defendant threw the brick at her windshield, then lifted his shirt and displayed the gun in his waistband, left the scene, returned one or two minutes later, and then committed the robberies as a means of intimidating Mariah and Mason from reporting that the brick was thrown. Mariah and Mason also identified defendant at the infield show up as the person who committed all of the alleged target and charged crimes.
Mason testified defendant was not the person he identified at the infield show up, and that defendant was not one of the people in the other car—the alleged members of the conspiracy. Mason also testified he was unsure whether the person who threw the brick was the same person who then walked up to the passenger side of Mariah's car and displayed the gun in his waistband. But none of this testimony provided a reasonable basis for the jury to conclude that any of the alleged conspirators—the two or three people in the other car—did not share the same intent to commit each of the alleged target and charged crimes. Although the jury could have credited Mason's testimony and concluded that defendant—if he was one of the conspirators—was not the person who threw the brick or initially displayed the gun, all of the evidence still showed that all of the conspirators intended to commit each of the alleged target and charged crimes.
2. Any Error in Failing to Instruct on Unanimity Was Harmless
There continues to be a split of authority in the appellate courts concerning whether the erroneous failure to give a unanimity instruction must be harmless under the Chapman standard or the Watson standard. (People v. Hernandez, supra, 217 Cal.App.4th at pp. 576-578 [discussing split of authority and applying Chapman standard requiring error to be harmless beyond a reasonable doubt]; People v. Vargas, supra, 91 Cal.App.4th at pp. 561-562 [applying Watson standard of whether "'it is reasonably probable that a result more favorable to the appealing party would have been reached'" absent the error].) This court has applied the Chapman standard. (Hernandez, supra, at pp. 576-577; People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188.)
Chapman v. California (1967) 386 U.S. 18, 24.
People v. Watson (1956) 46 Cal.2d 818, 836.
Under the Chapman standard, any error in failing to give the unanimity portion of CALCRIM No. 416, or a similar unanimity instruction, could not have affected the verdicts on the robbery and witness dissuasion counts, and was therefore harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) As noted, Mariah and Mason identified defendant at the infield show up as the person who threw the brick at Mariah's windshield, then returned a short time later and robbed them. Mariah's trial testimony was consistent with her infield identification of defendant. Further, the jury's guilty verdicts on the robbery and witness dissuasion counts show the jury necessarily rejected Mason's testimony that defendant was not the person Mason identified at the infield show up as the person who committed all of the alleged target and charged crimes.
Wolfe is closely analogous. There, the defendant presented a unitary defense to a single unlawful gun possession charge, namely, that all of the guns he allegedly possessed belonged to his mother and he had no dominion or control over any of them. (People v. Wolfe, supra, 114 Cal.App.4th at pp. 180-181, 188.) This court concluded that the error in failing to give a unanimity instruction on the single gun possession charge was harmless beyond a reasonable doubt because, in finding the defendant guilty of the gun possession charge, the jury necessarily rejected defendant's unitary defense, supported by his mother's testimony, that the guns belonged to her. (Id. at p. 188.) As this court later observed in Hernandez, the guilty verdict in Wolfe showed that the jury in that case "rejected defendant's defense in toto, resolving the credibility dispute in the prosecution's favor." (Hernandez, supra, 217 Cal.App.4th at p. 577.) The same is true here. In finding defendant guilty of the robbery and witness dissuasion counts, the jury must have rejected Mason's trial testimony that defendant was not the person Mason identified at the infield show up as the person who committed the alleged target and charged crimes. B. The Error in Giving CALCRIM No. 252 Was Harmless
Defendant next claims the jury was given a "seriously flawed" version of CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together). The People concede the error, but argue there is no reasonable likelihood that the error affected the verdicts on the robbery and witness dissuasion counts, in light of the instructions as a whole. As we explain, the People are correct.
"'[I]n reviewing a claim of instructional error, the ultimate question is whether "there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner."'" (People v. Gana (2015) 236 Cal.App.4th 598, 608.) "'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220.) "'"[T]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole."'" (People v. Bolin (1998) 18 Cal.4th 297, 328.)
As given, CALCRIM No. 252 instructed the jury that "[a]ll of the crimes charged and allegations alleged require general criminal intent," and "[n]one of the crimes or allegations charged require a specific intent or mental state." The instruction further stated that, in order to find defendant guilty of the charged crimes and allegations, the jury did not have to find that he "intentionally committed the prohibited act with the specific intent or mental state," but "only" had to find that he "generally intended to do a prohibited act. The act required is explained in the instruction for that crime or allegation."
The jury was instructed on all of the elements of robbery (CALCRIM No. 1600), and witness dissuasion (CALCRIM No. 2622), including the specific intent elements of these crimes. Robbery is a specific intent crime. (People v. Myers (2014) 227 Cal.App.4th 1219, 1225-1226.) It is "'the taking of "personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property."'" (People v. Clark (2011) 52 Cal.4th 856, 943, italics added; § 211.)
Section 136.1, subdivision (a)(2), criminalizes attempting to intimidate witnesses or victims. It prohibits "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." "Unless the defendant's acts or statements are intended to affect or influence a potential witness's or victim's testimony or acts, no crime has been committed under [section 136.1]." (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.) Thus, the crime of attempting to dissuade a witness or victim from testifying or reporting a crime is a specific intent crime. (People v. Wahidi (2013) 222 Cal.App.4th 802, 806.)
As the People concede, CALCRIM No. 252, erroneously told the jury that none of the charged crimes required a "specific intent." But the instructions on the robbery and witness dissuasion instructions (CALCRIM Nos. 1600, 2622) specifically told the jury that the People had to prove the intent elements of these crimes. These instructions did not use the term "specific intent" but instead used the terms "intended" and "intends." (Ibid.) "General intent exists where the defendant intentionally does some act or fails to do some act; specific intent exists where, in doing the act or failing to do the act, the defendant intends a particular result." (Williams, supra, 161 Cal.App.4th at pp. 710-711; Stark v. Superior Court (2011) 52 Cal.4th 368, 391; People v. Hood (1969) 1 Cal.3d 444, 456-457.)
The guide for using CALCRIM instructions explains: "The instructions do not use the terms general and specific intent because while these terms are very familiar to judges and lawyers, they are novel and often confusing to many jurors. Instead, if the defendant must specifically intend to commit an act, the particular intent required is expressed without using the term of art 'specific intent.'" (Judicial Council of Cal. Crim. Jury Instns. (2016) General and Specific Intent, p. xxiv.) Thus, as the Williams court observed, "[i]n order to instruct a jury that a particular crime requires a specific intent, it is not helpful simply to say the defendant must have a specific intent. Rather, it is preferable that the jury be informed what particular intent is required." (Williams, supra, 161 Cal.App.4th at p. 711.) This is precisely what the instructions on the elements of robbery and witness dissuasion, CALCRIM Nos 1600 and 2622, did here.
The jury was also instructed to "[p]ay careful attention" to all of the instructions and "consider them together." (CALCRIM No. 200 [Duties of Judge and Jury].) Because the jury was specifically instructed that it could not find defendant guilty of the robbery and witness dissuasion charges unless the People proved the intent elements of these crimes, there is no reasonable likelihood that the jury misapplied CALCRIM No. 252 as relieving the People of its burden to prove the intent elements of the robbery and witness dissuasion charges. C. Instructional Error Requires Reversal of Defendant's Conviction in Count 5 and the Personal Use Enhancements in Counts 1 and 2
Defendant claims his felony conviction for throwing the brick at the windshield (Veh. Code, § 23110, subd. (b); count 5) and the personal use enhancements on his two robbery convictions (Pen. Code, § 12022.53, subd. (b); counts 1-2) must be reversed based on instructional error. We agree.
1. The Personal Use Enhancements
The trial court did not instruct the jury at all on the personal use of a firearm, even though the information alleged defendant personally used a firearm in the commission of the robberies and the allegations were submitted to the jury. As noted, the trial court has a duty to instruct sua sponte on the elements of enhancement allegations. (People v. Clark, supra, 55 Cal.App.4th at pp. 714-715.) Like the failure to instruct on the element of a crime, the failure to instruct on the element of an enhancement must be harmless beyond a reasonable doubt. (People v. Merritt (2017) 2 Cal.5th 819, 829-831; People v. Mil, supra, 53 Cal.4th at p. 411.) This means there must be no reasonable possibility that the error contributed to the jury's true findings on the personal use enhancements. (Chapman v. California, supra, 18 U.S. at p. 24.)
The People argue any error in failing to instruct on the personal use of a firearm was harmless "because a properly instructed jury would necessarily have found the [personal use] enhancement[s] true. We disagree.
A properly instructed jury would have been told that, if it found defendant guilty of the robberies, it then had to determine whether the People also proved defendant "personally used" a firearm "during the commission" of the robberies. (CALCRIM No. 3146.) Although the verdict forms told the jury to determine whether defendant "personally used a firearm during the commission" of the robberies, the phrases "personal use" and "during the commission" were not defined for the jury. CALCRIM No. 3146 would have told the jury that "[s]omeone personally uses a firearm if he or she intentionally" "[d]isplays the firearm in a menacing manner." (Ibid.)
Further, the jury was not instructed that it had to unanimously agree on which one of three arguable displays of a firearm by defendant, shown by the evidence, constituted his personal use. (People v. Russo, supra, 25 Cal.4th at pp. 1134-1135 [unanimity instruction required when evidence shows two discrete crimes, and jury may not agree which crime was committed].) The prosecutor also failed to elect which of defendant's three arguable displays of the firearm constituted his personal use. (People v. Hernandez, supra, 217 Cal.App.4th at p. 569.) As instructed, the jury may not have unanimously agreed which of the three arguable displays of a firearm by defendant, shown by the evidence, constituted his personal use or menacing display of a firearm during the commission of the robberies.
Mariah's testimony showed that defendant twice displayed a firearm—first when he displayed a gun in his waistband after throwing the brick, and second when he displayed a gun on the lighted console of the car he was driving after he returned to Mariah's car and committed the robberies. But, arguably, defendant's first display of the firearm did not occur during the commission of the robberies.
If properly instructed on "during the commission," the jury reasonably could have concluded defendant did not form the intent to commit the robberies—or to permanently deprive Mariah and defendant of their cell phones—until after he displayed the firearm in his waistband and drove away. The evidence shows he returned one or two minutes later and then committed the robberies. But as instructed, the jury could have based the true findings on defendant's initial display of the gun, even though that display arguably did not occur during the commission of the robberies.
Additionally, given the lack of a unanimity instruction, some jurors could have based their votes for the true findings on defendant's first display of the gun in his waistband, while others could have believed that defendant's second display of the gun on the lighted console of the car he was driving constituted his personal use.
Still other jurors could have based their votes for the true findings on Mason's testimony that, after the robber and his cohorts returned to Mariah's car, Mason saw "the barrel of the gun looking out a window and someone asking me for my stuff." Although Mason testified he was unsure who was holding the gun at that point, some jurors could have concluded that it must have been defendant.
In sum, the true findings on the personal use enhancements could have been based on any one of the three instances in which defendant arguably "personally used" a gun "during the commission" of the robberies. For these reasons, the true findings on the personal enhancements must be reversed.
2. Defendant's Conviction in Count 5 (Veh. Code, § 23110, subd. (b))
A violation of Vehicle Code section 23110, subdivision (b) requires the intent to cause great bodily injury and the use of an object or substance capable of causing such injury. (People v. Mullendore (2014) 230 Cal.App.4th 848, 854, 857.) The statute provides: "Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony and upon conviction shall be punished by imprisonment in the state prison. (Veh. Code, § 23110, subd. (b), italics added.)
The instruction on the elements of count 5 instructed the jury that the People had to prove defendant threw an object or substance "with the intent to cause injury." The instruction did not tell the jury that defendant had to throw an object or substance with the intent to cause great bodily injury. As noted, the failure to instruct on an element of an offense must be harmless beyond a reasonable doubt—there must be no reasonable possibility that the error contributed to the verdict. (People v. Merritt, supra, 2 Cal.5th at p. 829; Chapman v. California, supra, 18 U.S. at p. 24.)
Here, the failure to instruct that defendant must have thrown the brick with the intent to cause great bodily injury may have contributed to the guilty verdict on count 5. Because the jury was instructed that defendant must have intended to cause "injury" when he threw the brick, the jury reasonably could have concluded that defendant was guilty because he intended to injure Mariah's car when he threw the brick. But had the jury been instructed that defendant had to intend to cause great bodily injury, the jury may not have found defendant guilty in count 5. Mariah testified it appeared that defendant did not know anyone was in her car until after he threw the brick and Mason began yelling from the backseat. Mariah's car had tinted windows, it was dark, and it appeared defendant did not see anyone in Mariah's car until after he threw the brick.
IV. DISCUSSION/RESENTENCING
Lastly, defendant claims the matter must be remanded for resentencing based on several sentencing errors. The People concede and we agree that defendant's sentences on the witness dissuasion convictions in counts 3 and 4 should have been stayed based on his sentence on the robbery convictions, because defendant harbored the same intent and objective in committing these crimes as he did in committing the robberies. (§ 654; People v. Galvez (2011) 195 Cal.App.4th 1253, 1263 [§ 654 precluded multiple punishment for robbing victim of cell phone and dissuading same victim from reporting felony assault, where the intent and objective of robbery and witness dissuasion was to prevent victim from reporting a felony assault].)
Thus, we remand the matter for resentencing on counts 1 through 4 and the sentencing enhancements on counts 3 and 4. We express no opinion whether defendant's 19-year eight-month sentence in his two other felony cases, Riverside County Superior Court case Nos. INF1200367 and INF1501204, must be run concurrently to his sentence on counts 1 through 4, given our reversal of defendant's conviction on count 5 and the personal use enhancements on counts 1 and 2. That question is not before us, and the plea agreement in the other two felony cases is not part of the record in this appeal.
Defendant has requested leave to file a supplemental opening brief, requesting that this court remand the matter with directions to the sentencing court to exercise its discretion to strike the personal use enhancements based on section 12022.53, subdivision (h), which authorizes the court to strike or dismiss a firearm enhancement in the interest of justice. Given our reversal of the personal use enhancements, we deny the request as moot.
V. DISPOSITION
Defendant's conviction in count 5 for violating Vehicle Code section 23110, subdivision (b), and the personal use enhancements on defendant's robbery convictions in counts 1 and 2 are reversed, and the matter is remanded for resentencing. Defendant's request to file a supplemental opening brief, seeking remand so the sentencing court may exercise its discretion to strike the personal use enhancements, is denied as moot.
The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.