Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA277908. Barbara R. Johnson, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Presley.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Gary Collins.
Edmund G. Brown, Jr., Bill Lockyer, Attorneys General, Dane R. Gillette, Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted defendants Kenneth Presley (Presley) and Gary Collins (Collins) of selling or transporting marijuana in violation of Health and Safety Code section 11360, subdivision (a) (count 1) and possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 2). The jury found true the allegation that defendants committed the crimes for the purposes of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(A).
All further statutory references are to the Penal Code unless otherwise indicated.
In the second portion of the bifurcated proceeding, the trial court found true the allegations that Presley and Collins had each suffered a prior serious or violent felony conviction or juvenile adjudication under section 667, subdivisions (b)-(i) and section 1170.12, subdivisions (a)-(d); a prior serious felony conviction under section 667, subdivision (a)(1); and two prior prison terms under section 667.5, subdivision (b).
The trial court sentenced Presley to nine years in state prison. The sentence consisted of the upper term of four years on count 1 and a five-year enhancement pursuant to section 667, subdivision (a)(1). The trial court struck Presley’s prior strike conviction under section 1385, and stayed Presley’s two-year sentence in count 2 pursuant to section 654.
The trial court sentenced Collins to 11 years in state prison. The sentence in count 1 consisted of the three-year midterm doubled to six years because of his prior strike conviction and a five-year enhancement under section 667, subdivision (a)(1). The trial court stayed Collins’s sentence in count 2 pursuant to section 654.
Presley appeals on the grounds that: (1) there was insufficient evidence to support his conviction in counts 1 and 2; (2) there was insufficient evidence to support the true findings on the gang allegations; (3) the trial court committed reversible error by failing to instruct the jury with CALJIC No. 17.00, which tells the jury to decide the guilt or absence of guilt of each defendant separately; and (4) his upper term sentence in count 1 must be reversed because it was based on factual determinations by the trial court, denying him his right to a jury trial. Presley also joins in the contentions made by Collins where applicable to him.
Collins appeals on the grounds that: (1) the testimony by the police officers was so contradictory and replete with mistakes that his convictions should be reversed; (2) the trial court failed to instruct the jury with CALJIC No. 17.00 sua sponte; and (3) his new trial motion should have been granted after the defense located a critical witness who contradicted the officers’ testimony and exonerated Collins. Collins also joins in all issues raised by Presley that may be of benefit to him.
FACTS
I. Prosecution Evidence
At approximately 9:10 p. m. on January 27, 2005, Detective Hubert Nino and Officer Irma Garcia of the Los Angeles Police Department were conducting surveillance of a house with a West 46th Street address. The house was located on the northeast corner of West 46th Street and Halldale Avenue in Los Angeles. Detective Nino worked in the narcotics division. He and Officer Garcia wore plainclothes and sat in an unmarked police car outside the residence. During the surveillance, they viewed the house from different vantage points, repositioning their vehicle two times. They saw Presley and Collins standing outside on the west side of the house, drinking and talking within an area bordered by a wrought-iron fence.
At one point Detective Nino saw a gold Chrysler Sebring stop in the middle of the street in front of the house. The driver, later identified as Vincent Johnson (Johnson), got out of his car and ran over to speak with Presley and Collins. He handed some currency to Presley. Collins then walked to a flower bed in front of the house, lifted some branches, and extracted a small item. Collins handed the small item to Johnson, who took it and ran back to his car. The Chrysler proceeded westbound on 46th Street.
Detective Nino radioed other police units waiting in the area to stop the Chrysler Sebring. Detective Nino was not present at the initial stop, but he and Officer Garcia arrived there later so that Detective Nino could identify Johnson. Police found a baggy of what later proved to be marijuana on the floorboard of the car under the driver’s seat. Officer Garcia cited Johnson for possessing less than one ounce of marijuana and Johnson was released. A photograph of the baggy was introduced into evidence at defendants’ trial as People’s exhibit 7, item B. Detective Nino and Officer Garcia returned to the house on West 46th Street and Halldale Avenue. They waited in their car while uniformed Officers Wren and Meyer arrived in a marked police car to arrest Presley and Collins.
The yard where Collins and Presley had been standing was searched. The search yielded several baggies of what later proved to be marijuana. Photographs of the baggies containing marijuana were introduced at defendants’ trial as People’s exhibit 7, item A. Police recovered $355 from Presley’s pockets and $1,041 from Collins’s pockets. Based on the totality of his observations, Detective Nino was of the opinion that Presley and Collins possessed the marijuana for the purpose of sale.
Officer Jeremy Duncan testified as a gang expert. His specific assignment was to monitor the criminal street gang known as the Rolling 40’s. Officer Duncan testified about various aspects of the Rolling 40’s gang culture and described their territory and criminal activities. He testified regarding crimes committed by three members of the Rolling 40’s gang.
Officer Duncan said he had met Collins only once, but he knew him from his picture in the police gang book and the information on Collins that appears on the Cal Gangs database. Officer Duncan had never met Presley, but he had researched him in Cal Gangs. Presley had admitted his gang membership to a police officer in April 2003. When given a hypothetical based on the facts of the instant case, Officer Duncan stated that he believed that Collins and Presley committed the crimes to aid, promote, benefit, or assist the Rolling 40’s neighborhood Crips.
II. Defense Evidence
Presley’s wife, Michelle, testified that she and Presley went to her grandmother’s house on West 46th Street on January 27, 2005, for a family gathering. Collins was Michelle’s uncle, and the home was his mother’s, although Collins did not live there. Michelle stated that Presley and Collins went to a store around 9:00 p.m. and came back in a few minutes. They then went outside on the porch to drink. At approximately 10:00 p.m. Michelle saw lights flashing outside and heard a lot of people talking.
Michelle stated that Presley had not engaged in any gang activity in the past few years. Presley was holding approximately $300 for Michelle, who wanted to buy money orders with it. Michelle stated that there were three or four cars in addition to her car parked on the west side of her grandmother’s house, which is where Detective Nino claimed to have parked. Three of the cars belonged to her grandfather and were never moved. At the time Presley and Collins were outside it was dark and there was no porch light.
Charlie Watson (Watson) was Collins’s investigator. He took photographs showing the house at the corner of West 46th Street and Halldale Avenue in the dark. While he was there he photographed Michelle standing on the porch, and he could only vaguely see her on the photograph.
Presley testified that he and Collins went to the store at approximately 9:15 p.m. to buy cups. He and Collins returned to the house and went outside approximately 10 or 15 minutes later. They were standing and drinking outside the house. He was carrying $360 that his wife had given him for paying bills. While he and Collins were outside the police came and arrested them. He and Collins were not selling drugs that night, and no one approached them and asked for drugs. Presley admitted a 1992 conviction for receiving stolen property and a 1989 conviction for robbery. He had not participated in a street gang in approximately the last 10 years.
Presley said that all the police officers that later went to the house were outside the liquor store where he and Collins had gone. The police had pulled over a car outside the store. Presley stated that approximately 30 minutes later he saw police driving by on Halldale Avenue while he was outside drinking. Some officers came to talk to Presley and Collins, and then other officers arrived, went inside the gate, and handcuffed the two men. Presley was upset because no one ever explained why he was being handcuffed. The police searched for 10 or 15 minutes before they supposedly found anything. An officer held up a large sandwich bag with some baggies inside that contained marijuana. Presley had never seen the items before. Presley and Collins were personally searched two or three times by different officers. One of the officers took Presley’s money from Presley’s wallet and put it inside Presley’s pocket.
DISCUSSION
I. Sufficiency of the Evidence to Support Verdicts in Counts 1 and 2
A. Argument
Presley contends that there is insufficient evidence in support of his convictions because the testimony of Detective Nino and Officer Garcia was not credible. According to Presley, photographs and videotapes taken by the prosecution and Collins’s private investigator revealed that Detective Nino and Officer Garcia could not have seen what they claimed to have seen. The evidence that neither Presley nor Collins lived at the house where they were arrested combined with the weakness in the prosecution case because of the contradictions in police testimony rendered the prosecution’s case inherently improbable.
Collins’s first contention is essentially the same as Presley’s. He maintains that the officers’ testimony was inherently improbable because the photographs and videotape admitted into evidence showed that the officers could not have seen what they claimed to have seen.
B. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] . . . The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
C. Evidence Sufficient
Employing the standard of review set out in the previous paragraph, we conclude that there was substantial evidence in support of the jury’s verdicts with respect to both defendants. It is well established that the testimony of one witness, if believed by the trier of fact, is sufficient to sustain a verdict. (Evid. Code, § 411; People v. Alcala (1984) 36 Cal.3d 604, 623.) “‘To warrant rejection of a witness’ testimony that has been believed by the trier of fact, there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. [Citation.]’” (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
Defendants first assert that the photographs taken by the People and Watson reveal that Detective Nino and Officer Garcia could not have seen what they claimed to have seen from their vantage points, and their testimony was therefore inherently improbable. After viewing both the People’s and the defense exhibits, we disagree. If Detective Nino and Officer Garcia were positioned on Halldale Avenue at the positions shown on defense exhibit A-2, then the officers had a good view of anyone standing in the gated area bordering Halldale Avenue. Although it was dark, there were streetlights that would allow them to see the activity they described. Watson’s night photographs do not represent what a person could see at night with his or her naked eye—they show only the effect of a flash camera on a night scene. Watson’s videotape was not admitted into evidence, but the record shows that it documented the view from a position on West 46th Street. This vantage point was later made irrelevant when Detective Nino corrected his mistaken recollection of the orientation of the streets.
Presley also cites inconsistencies in the testimony that he claims undermined the credibility of all the officers. First, Detective Nino testified at the preliminary hearing that he arrived at the scene at 10:20 p.m., but at trial he said he arrived at approximately 9:10 p.m. Second, at a prior hearing, Detective Nino testified that he and Officer Garcia were positioned east of the house on West 46th Street, and they got no closer than 40 feet from defendants. At trial, however, Detective Nino said he and Officer Garcia were positioned on Halldale, just west of the house, and that they were as close as 15 to 20 feet from defendants at one point. The position east of the house on 46th Street would not have allowed Detective Nino to see what he claimed to have seen.
Presley also notes that Detective Nino testified at the preliminary hearing that he did not stop his surveillance of the residence after Johnson drove off, whereas at trial he stated that he and Officer Garcia went to the location of Johnson’s traffic stop and then returned to the residence. Finally, Detective Nino’s police report and preliminary hearing testimony indicated that the drugs were sold at approximately 10:20 p.m. The face of Johnson’s citation, however, states that the citation was issued at 9:40 p.m. Presley maintains that this particular inconsistency is very significant because if the surveillance of the residence was not set up until after the citation was issued, then the prosecution’s case had to have been fabricated.
Collins makes the same arguments and additionally points out that it was too dark for the police to see the currency and marijuana being passed from one person to another without the aid of binoculars. Collins also points out that Detective Nino wrote in the police report that Johnson’s car stopped at the curb, yet Detective Nino testified that Johnson stopped in the middle of the street. There was also contradictory police testimony on who found the narcotics in the yard and where the narcotics were found. In addition, Collins finds it incredible that Officer Garcia wrote Johnson a citation when she did not search his car, find the marijuana, and did not observe him speeding.
It is true that there are various discrepancies as to time, distance, and location when one compares the police report, the citation, Detective Nino’s trial testimony, his previous testimony at the preliminary hearing and his testimony at an in camera hearing. These discrepancies were all brought out during cross-examination, and Detective Nino offered his explanations for each one.
On direct examination, Detective Nino stated that the residence was on the southeast corner of Halldale Avenue and West 46th Street. When shown on cross-examination a drawing of the location with the correct directions indicated, Detective Nino agreed with Collins’s counsel that the residence was on the northeast corner, which is correct. When asked to mark where he was positioned, Detective Nino placed his mark at a point on Halldale Avenue. Counsel pointed out that at the preliminary hearing Detective Nino said he first observed defendants on the north side of the residence, which would have been the back of the house. Detective Nino explained that he meant that they were on the north side of West 46th Street. When counsel read Detective Nino’s prior testimony regarding his vantage point while the detective viewed a drawing of the location, Detective Nino realized he was “a little bit confused on the streets there with Halldale and 46th.”
An examination of the record shows that Detective Nino was obviously confused about his location on the evening in question. He had been picturing the front of the residence as being on a street that ran north to south rather than east to west. He had also envisioned the side yard as being on a street that ran east to west rather than north to south. We note that the testimony Detective Nino gave at the preliminary hearing and the in camera hearing, which was continually used to impeach his trial testimony, was given well after the incident and without the benefit of any visual aids. The preliminary hearing occurred approximately three weeks after the arrest, and the in camera hearing was held three months after the arrest. When shown a map of the area, however, Detective Nino realized the error of his thinking. Once Detective Nino reoriented himself, his testimony was identical to the subsequent testimony of Officer Garcia with respect to their location. Officer Garcia, who at first incorrectly remembered the location of the gate where defendants were standing, also correctly remembered the orientation of the scene after being shown a photograph.
With respect to the discrepancy as to whether the closest point of observation was within 40 feet or 20 feet, Detective Nino testified that he did not have the benefit of the photographs at the preliminary hearing. Judging by the photographs he was shown at trial, he believed he got to within 20 feet of defendants. When asked about the discrepancy between the police report statement that Johnson pulled over to the north curb and his testimony that Johnson parked in the middle of the street, Detective Nino explained that “he was still in the middle of the street on the north side.” When challenged as to why his report stated that the officers “set out” at 10:20 p.m., when he had just testified that he arrived at the residence around 9:15 p.m., Detective Nino explained that he had probably written the time that the arrest was actually made. He acknowledged that at the preliminary hearing he had said that he observed defendants at approximately 10:20 p.m.
With respect to Collins’s assertion that it was improbable Detective Nino would have allowed Johnson to travel four miles before being stopped, Detective Nino stated that he did not wish Johnson to be pulled over immediately. When confronted with his prior testimony that he did not follow Johnson as compared to his trial testimony that he and Officer Garcia went to the scene of the stop, Detective Nino explained that he did not have an opportunity during the preliminary hearing to state that he and Officer Garcia went to the scene at a later time, since the line of questioning did not call for this response.
We conclude that Detective Nino and Officer Garcia adequately explained the above-mentioned discrepancies between the police report, prior testimony, and trial testimony. The remaining discrepancies cited by defendants are minor. We do not find significant the differences between the police report and the trial testimony as to whether the drugs were found in a flower bed or a planter, and who took credit for finding them as opposed to recovering them. We also do not believe it matters that Collins and Presley did not live in the residence, since the house belonged to Collins’s mother, who was also Presley’s wife’s grandmother. It is not improbable that defendants would have believed that the house was well located and provided ideal cover for a narcotics-selling operation.
In any event, the jury heard both defense counsel meticulously compare Detective Nino’s testimony at trial to his former statements and the police report. It also heard close questioning of Officer Garcia regarding the errors on the citation she issued Johnson. The jury clearly gave credence to the testimony of the police officers over the testimony of the Presleys. We do not believe, as Presley asserts, that the contradictions in Detective Nino’s testimony were so drastic that the jury’s verdict was unreasonable and supported only by evidence that was inherently improbable. Clearly the jury members were able to satisfactorily reconcile any inconsistencies in the officers’ testimony.
Likewise, we find nothing inherently improbable nor physically impossible in the content of the police evidence. It is not inherently improbable for a police officer to fail to recall the orientation of a corner house with respect to the cardinal points after a significant period of time has elapsed. Nor is it improbable for an officer to err in noting the times at various stages of a surveillance operation or to fail to recall the reasons for these errors when the operation occurred weeks or months earlier and was presumably followed by myriad other operations in the meantime.
As stated previously, conflicts in the evidence and even testimony that is worthy of suspicion do not justify reversal of the judgment, and it is the exclusive task of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts. (People v. Maury, supra, 30 Cal.4th at p. 403.) “Testimony is not inherently improbable unless it appears that the things related could not have occurred. Inconsistencies and contradictions present questions of fact for the trial court, where portions of the testimony may be believed and other portions disbelieved. On appeal, the portion which supports the judgment must be accepted. [Citation.]” (People v. Walton (1952) 112 Cal.App.2d 871, 874.) Defendants’ attempts to reargue the evidence and have this court reweigh the facts must fail, since there is substantial evidence to support the verdict. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Defendants’ arguments are to no avail.
II. Sufficiency of the Evidence to Support True Findings in Gang Allegations
A. Argument
Presley and Collins contend that insufficient evidence supports the true findings in the gang enhancement allegation. According to Presley, the only evidence on this issue—the testimony of Officer Duncan—did not establish that the crimes were committed with the specific intent to promote, further, or assist in other criminal conduct by other gang members. In addition, both Presley and Collins maintain they are no longer members of a gang and there was insufficient evidence that they remained in the gang.
B. Relevant Authority
Section 186.22, subdivision (b)(1) provides for an enhanced sentence where the crime is committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) A trier of fact may rely on expert evidence to reach a finding on a gang allegation. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.)
C. Evidence Sufficient
Officer Duncan testified that the Rolling 40’s gang claimed the territory from the 110 freeway in the east to Crenshaw Boulevard in the west, and that the territory includes the streets between 41st Street and 49th Street. Gang turf is important to the gang, and this is the area in which they engage in much of the gang narcotic sales. After listening to a hypothetical based on the facts of the instant case, Officer Duncan stated that in his experience the Rolling 40’s gang members sell narcotics in order to use the proceeds to buy more narcotics and guns, which they use to commit other crimes. They also use the proceeds to buy Nextel phones with a walkie-talkie system to communicate with each other when they drive around the neighborhood and when they commit crimes. In addition, the narcotic sales allow the gang members to buy more cars and clothes and thus influence younger people in the area who are poor, which helps them to recruit new gang members. Officer Duncan added that he had personally arrested three or four people for marijuana sales in the area of West 46th Street and Halldale. He stated that narcotics were constantly being sold there. Moreover, no one could sell drugs in that area claimed by the Rolling 40’s gang unless they paid “rent” for the privilege. In other words, the gang would receive a portion of the sale proceeds.
The prosecutor’s “hypothetical” was based upon evidence presented at trial and thus provided an appropriate basis for expert opinion testimony. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Officer Duncan’s opinion specifically addressed the conduct of defendants and why it would promote or benefit the gang. There was, therefore, ample evidence of intent in support of the jury’s finding on the section 186.22 enhancement. Defense counsel thoroughly cross-examined Officer Duncan regarding his opinion that the instant offenses were for the benefit of the gang. The jury could reasonably conclude, based on Duncan’s evidence, that the gang allegation was true.
As for defendants’ claims that they are no longer gang members, there was sufficient evidence to support the jury’s conclusion that they were. Officer Duncan testified that Collins was stopped in June 2003 while in the company of two gang members from the Rolling 40’s. Collins admitted at that time to the officers that he was an active member of the Rolling 40’s Crips. Presley was stopped in April 2003 by an Officer Tejada, and at that time Presley admitted that he was an active Rolling 40’s gang member. A month later an Officer Huett stopped Presley, and Presley admitted to Officer Huett that he was a gang member. This contradicted Presley’s claim that he had not participated in gang activities for 10 years. Furthermore, subdivision (b) of section 186.22 does not require a showing of current, active gang membership. (In re Ramon T. (1977) 57 Cal.App.4th 201, 206-207.)
We reject Presley’s contention that the People are required to prove that a defendant charged with a gang allegation intended to assist criminal conduct apart from the instant conviction. We agree with the court in People v. Romero (2006) 140 Cal.App.4th 15, that Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, on which Presley relies for this proposition, misinterpreted the California statute. As stated in Romero, “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.” (People v. Romero, supra, 140 Cal.App.4th at p. 19, citing § 186.22, subd. (b)(1); accord, People v. Hill (2006) 142 Cal.App.4th 770, 774.) We are not bound by the Ninth Circuit’s interpretation, and we decline to follow it. (People v. Burnett (2003) 110 Cal.App.4th 868, 882.)
We conclude there was sufficient evidence to support the true findings on the gang allegation with respect to both Collins and Presley.
III. CALJIC No. 17.00
A. Argument
Presley argues that the trial court erred in failing to read sua sponte CALJIC No. 17.00, which instructs the jury to consider the guilt or innocence of each defendant separately. Presley contends that the case against him was weaker than the case against Collins, and the jury could not help but use the evidence against Collins to bolster the case against Presley. This factor, combined with the contradictory evidence noted in Presley’s first argument, made the reading of CALJIC No. 17.00 crucial. According to Presley, the trial court’s error resulted in a violation of his due process rights.
Collins also argues that the failure to read CALJIC No. 17.00 constituted reversible error and a denial of due process, since the instruction must be given sua sponte in all cases where multiple defendants are tried jointly. He adds that this is especially true where one defendant testifies, as did Presley, and the other does not.
B. Relevant Authority
Section 1160 provides in part: “On a charge against two or more defendants jointly, if the jury cannot agree upon a verdict as to all, they may render a verdict as to the defendant or defendants in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the other may be tried again.”
In implementing this legislative mandate, CALJIC No. 17.00 provides: “You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to [both] [all] the defendants, but do agree upon a verdict as to any one [or more] of them, you must render a verdict as to the one [or more] as to whom you agree.”
A trial court is obliged to instruct, even without a request, on the general principles of law that relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Wims (1995) 10 Cal.4th 293, 303.) “It is fundamental that when more than one defendant is prosecuted in an action, the jury must consider separately the guilt or innocence of each defendant. This is a general principle of law openly and closely connected with the facts of any case involving multiple defendants.” (People v. Mask (1986) 188 Cal.App.3d 450, 457.)
“We apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. . . . Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution.” (People v. Carpenter (1997) 15 Cal.4th 312, 393.)
C. Harmless Error
Although it was error to fail to instruct the jury in accordance with CALJIC No. 17.00, there was no reasonable probability that it affected the result. (See People v. Mask, supra, 188 Cal.App.3d at p. 457; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendants argue that because of the contradictions in the police evidence, the case was a close one, and the instructional error negatively affected their respective cases. Presley argues that only Collins was seen picking up the marijuana and handing it to Johnson. Also, Collins had a large sum of money whereas Presley had only $355 and an explanation for possessing that amount. Collins argues that Presley’s decision to testify may have adversely affected him because the jury learned of Presley’s criminal and gang history.
We believe there was no evidence in the instant case that pointed to the guilt of one defendant but not the other, and thus no danger that evidence pertinent to one defendant could have been misapplied to the other. To the contrary, the evidence demonstrated that the two men were working in concert. Moreover, defendants’ common defense was that the police were lying about all the events that occurred.
Other jury instructions made clear to the jury that it was required to find guilt as to each defendant separately. The trial court instructed the jury with CALJIC No. 1.11 that the word “defendant” applied to “each defendant.” The court read CALJIC No. 2.90 to state that “a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in the case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the people the burden of proving him guilty beyond a reasonable doubt.” CALJIC No. 3.01 defined aiding and abetting and informed the jury that mere presence at the scene and mere knowledge that a crime is being committed does not rise to the level of aiding and abetting. The trial court also instructed the jury on the elements of each of the charged offenses that had to be proved in order to establish a defendant’s guilt. (CALJIC Nos. 12.22, 12.21.) Finally, the jury was given separate verdict forms for each defendant and each was represented by separate counsel throughout the trial, thus impressing upon the jurors that their guilt or innocence must be determined separately.
Under the circumstances of this case, we conclude that the omission of CALJIC No. 17.00 constituted harmless error under state evidentiary law. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) For the same reasons, we conclude there was no due process violation, as defendants claim.
IV. Denial of New Trial Motion
A. Argument
Collins contends that the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence that contradicted the testimony of Detective Nino and Officer Garcia. Collins claims that it is reasonably probable the evidence would have changed the outcome of the trial. Collins argues that if this court determines that sufficient steps were not taken to locate the witness before trial, his counsel was ineffective. Presley presumably joins in this argument.
B. Proceedings Below
Collins’s counsel filed a motion for a new trial on the basis of newly discovered evidence; i.e., the testimony of Johnson, who was the alleged buyer of marijuana from defendants. Counsel stated that the defense tried to locate Johnson before trial but was unsuccessful. After trial, Johnson contacted counsel and indicated that he had learned of Collins’s arrest and conviction for the marijuana found in Johnson’s car. Johnson stated he did not know anyone by the name of Gary Collins and had never met him. Johnson also said he was not on Halldale Avenue or West 46th Street on January 27, 2005. At the hearing on the new trial motion, Collins’s counsel stated that Johnson had appeared in court for the new trial motion on three occasions, but the proceeding had been continued each time. Johnson did not appear at the last proceeding and was not in court at the time the motion was heard. Counsel argued that Johnson’s evidence in the context of the inconsistencies in the testimony would indicate a different result for both defendants.
The prosecutor countered that any evidence from Johnson was clearly not newly discovered. The citation issued him included his driver’s license number, full name, date of birth, and presumably his address. The defense announced they were ready for trial without Johnson, which indicated the defense did not believe he was necessary, and they gave no indication during trial that they wished to call him.
In denying the new trial motion the trial court stated, “I don’t think that Mr. Johnson’s testimony would add or make the—as to your second point about sufficiency of the evidence. I think there was sufficient evidence, to support the verdict. And Mr. Johnson, I don’t believe, is newly discovered evidence. And even if he was, there’s no declaration in your motion as to what he would say. He’s still missing. So that would mean that we would—I mean, I know your declaration is under information and belief so-to-speak, but if he’s going to be showing up, he should be here or in a declaration or somewhere and not just what he told you because we don’t know whether or not he would say it or not. The People made a point about him maybe not testifying after he found out and was appointed an attorney to determine whether or not he would testify. I understand your point that we can’t go into his credibility. . . . But he’s not newly discovered.”
C. Relevant Authority
Section 1181, subdivision 8 states in pertinent part, “[T]he court may . . . grant a new trial . . . . [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” The California Supreme Court has held: “‘“‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’”’” (People v. Staten (2000) 24 Cal.4th 434, 466.)
“‘In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: “‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’”’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1004, quoting People v. Williams (1962) 57 Cal.2d 263, 270; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1251-1252.)
In order to sustain on appeal a claim of ineffective assistance of counsel, a defendant must show counsel’s performance was deficient and it is reasonably probable defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Trial counsel’s performance may be deemed deficient only if “trial counsel makes a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases.” (People v. Pope (1979) 23 Cal.3d 412, 424.) Furthermore, a defendant must affirmatively show that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsel’s failings. (Strickland v. Washington (1984) 466 U.S. 668, 694-696; People v. Ledesma, supra, at pp. 217-218.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, at p. 694.) An appellate court need not address both prongs of the test before rejecting a claim of ineffective assistance of counsel. (Strickland v. Washington, supra, at p. 697.)
D. Motion Properly Denied
As the trial court noted, the record contains no declaration or testimony from Johnson. When seeking a new trial based on newly discovered evidence, a defendant must file supporting declarations that meet the requirements of section 1181, subdivision 8, which provides in pertinent part that, “[w]hen a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.” (§ 1181, subd. 8; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, §§ 116, 117, pp. 147-148.) In this case, the lack of testimony or declaration resulted in the lack of a sufficient legal basis for a new trial on the ground of newly discovered evidence. (People v. Beeler, supra, 9 Cal.4th at p. 1005; People v. Ethridge (1962) 204 Cal.App.2d 279, 282-283.)
Even assuming Johnson would have testified as defense counsel represented, we find no abuse of discretion under the factors set out in People v. Williams, supra, 57 Cal.2d at page 270 and reiterated at People v. Beeler, supra, 9 Cal.4th at page 1004. The evidence in question clearly was not newly discovered, since the defense was aware of Johnson’s existence before trial and in possession of the citation listing his address and other particulars. Trial counsel told the trial court that he had had an investigator trying to locate Johnson. And if Collins’s claims are believed, he obviously knew what the content of Johnson’s evidence would be and that Johnson could contradict the principal witnesses against him. We also conclude that the evidence would have been cumulative to that of Presley, who testified that the drug transaction did not occur and that the entire incident was a fabrication by police.
Most importantly, there is no reasonable probability of a different result had Johnson testified at a new trial. Although Presley was impeached with former felony convictions, there is no evidence that Johnson was not subject to similar impeachment, since he is apparently a drug user. It is also not reasonably probable the jury would have believed that Johnson did not purchase the marijuana found in his possession from defendants. As shown by People’s exhibit No. 7, the jury saw that the baggy found in Johnson’s car was nearly identical in approximate weight and size to the baggies found hidden near defendants, and Johnson was pulled over approximately four miles from defendants’ location. The jury would not find reasonable a claim that Johnson was stopped randomly rather than on the orders of Detective Nino after he witnessed Johnson participating in a drug transaction.
In addition, no evidence of due diligence was actually presented, and Collins thus failed to carry his burden of showing that in the exercise of due diligence he could not have procured the evidence prior to the end of trial. With respect to the requirement that the facts supporting a new trial motion be supported by the best evidence, we have already noted the lack of any evidence of diligence and of a declaration by Johnson.
Finally, we reject Collins’s claim of ineffective assistance of counsel. As we have stated, there was no reasonable probability Collins would have achieved a more favorable result if Johnson had testified. Therefore, Collins suffered no prejudice and his claim of ineffective assistance must fail. (Strickland v. Washington, supra, 466 U.S. at pp. 694-696; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
V. Presley’s Aggravated Term
A. Proceedings Below
The trial court found true the allegation that Presley suffered a 1989 conviction for robbery in violation of section 211, which was a strike offense. The court also found true the allegation that Presley suffered a 1992 conviction for receiving stolen property in violation of section 496. Presley’s counsel told the court that he had no argument as to the proof of the prior convictions.
Presley waived a jury trial on the prior conviction allegations.
The court proceeded to sentencing and began by reviewing Presley’s criminal history, stating: “. . . Mr. Presley’s adult history indicates that he was convicted of a robbery in 1988. And this was in his youth where he was found unfit and sentenced to prison for four years. In 1992, he was again sent to prison for violating what I thought was 10851, but it turns out to be a 496. He violated parole on that and was arrested for possession of marijuana for sale and finished his term. And until this present conviction, according to the probation report, he suffered no new convictions. And according to the probation report, he is unemployed and possibly supporting himself on a possible drug addiction by selling illegal drugs.”
The court went on to determine that Presley was outside the spirit of the three strikes law and struck his prior strike offense for sentencing purposes. The trial court cited the lack of violence, the small quantity of contraband, and the fact that Presley’s strike felony occurred over 15 years ago. The court then sentenced Presley to the high term of four years on count 1 and added five years for the section 667, subdivision (a) allegation based on the 1989 robbery conviction. Later, in further explaining the sentence to Presley, who had expressed a lack of understanding of his sentence, the trial court stated, “In striking the strike, you are sentenced for count 1, possession for sales, to the midterm -- I’m sorry. To the high term of four years state prison. That’s because I’ve stricken a strike because you have a record that indicates little prior criminal history.” The court explained that it had also stricken Presley’s prison prior and had imposed only 180 days on the gang allegation, which amounted to time served.
B. Presley’s Argument
In his opening brief, Presley cited Blakely v. Washington (2004) 542 U.S. 296 (Blakely) in support of his claim that his high term sentence was improperly based upon factual determinations by the trial court that resulted in a denial of his right to a jury trial. (See Blakely, supra, at pp. 301-305.) At the request of this court, following the United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham) and the California Supreme Court decisions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the parties submitted supplemental briefing on the issue of imposition of the high term in Presley’s case.
Presley contends that his sentence must be reversed because the high term was not imposed solely based on the fact of a prior conviction. He claims that, because the trial court made the subjective determination that the upper term should be imposed based on his prior felony convictions and the fact that the court struck his strike conviction, the trial court improperly used a combination of recidivist and nonrecidivist factors to justify the high term. Presley acknowledges that Black arrived at a contrary conclusion, but he argues that Black is flawed. (See Black, supra, 41 Cal.4th at pp. 813, 815.) Presley also argues that the error in imposing the high term was prejudicial, although he acknowledges that under Sandoval, a contrary conclusion would be reached. (See Sandoval, supra, 41 Cal.4th at pp. 838-840.) Presley argues that Sandoval is also flawed.
C. High Term Properly Imposed
Presley’s arguments lack merit, and for the reasons set forth in Black, we find no constitutional violation in the imposition of the high term.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The court therefore concluded that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871.)
In interpreting Cunningham in Black, supra, 41 Cal.4th at page 812, the California Supreme Court determined that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” Black emphasized that the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black, supra, at p. 819.)
Thus, as Presley acknowledges, the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836-837.) Here, the trial court’s determination that Presley had suffered a prior strike conviction was the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black, supra, 41 Cal.4th at pp. 819-820; see also People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Moreover, as noted previously, defense counsel had no argument as to the proof of Presley’s prior convictions. Once the trial court made its determination, Presley was eligible for the upper term, which became the statutory maximum. (Black, supra, at p. 816.) The trial court’s finding of additional facts in support of its discretionary choice of the upper term—the fact that it had stricken the strike prior—did not violate Presley’s right to trial by jury. (Id. at pp. 816, 820.) Presley’s argument is therefore without merit.
Because we determine that the high term was properly imposed in Presley’s case, we need not address his argument that the alleged error in imposing the high term was not harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.