Opinion
B220328
01-17-2012
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE SANDERS, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA094940)
APPEAL from a judgment of the Superior Court of Los Angeles County. Eleanor J. Hunter, Judge. Affirmed in part and vacated and remanded for resentencing.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
Freddie Sanders appeals his multiple murder and attempted murder convictions and sentences. Sanders asserts, inter alia, he did not receive a fair trial or due process, because the court, in rejecting his Wheeler/Batson motion, failed to make a finding that the prosecutor's racially neutral reason for exercising a peremptory challenge to an African-American juror was the genuine reason the juror was excused. In addition, Sanders claims his trial counsel was ineffective for failing to object to the introduction of evidence of other crimes on the basis of Evidence Code section 352. Sanders also objects to his sentence, asserting that it violates the state's prohibition against double jeopardy because his sentence after retrial exceeded the sentence he received after his first trial, and also that the court improperly imposed a DNA penalty. As we shall explain, only Sanders' claims with respect to his sentences have merit. Accordingly, his convictions are affirmed but this matter must be remanded for sentencing.
FACTUAL AND PROCEDURAL HISTORY
This is the second time Sanders has been before this court. Some of the background facts are taken from our prior opinion, Sanders I. (See People v. Sanders (July 17, 2002, No. B142864) .)
The Crimes
The October 1998 "Drive-by Shooting"
On the evening of October 8, 1998, police stopped three Blood Street Gang members driving in a car on Compton Boulevard. Police impounded the car because the driver did not have a license. As a result, the Blood Street Gang members (all of whom wore red—a color associated with the Blood Gang) walked near a rival gang area. While walking, they saw a green Cadillac driven by Livingston, a Caucasian member of a rival gang, the Park Village Crips. Two African-American men also rode in the Cadillac with Livingston.
The three Blood Street Gang members continued walking and at one point came upon another individual, Emmanuel Hunter, sitting in front of an apartment building on Bullis Road near Kay Street. The green Cadillac returned. Livingston sat in the front passenger seat and an African-American, Darrell Brown, drove the vehicle. As the car approached the Blood Street Gang members and Hunter, Livingston fired seven or eight shots from an assault rifle; one of the shots struck Hunter in the leg. The shooting occurred about three to four miles from the Wilmington Arms apartments.
Not long thereafter the same evening, a security guard standing in the guard shack at the vehicle entrance of the Wilmington Arms apartment complex observed the green Cadillac enter the complex. The guard saw Brown in the driver's seat, Livingston in the front passenger seat and Sanders, who is African-American, in the back seat of the car. Sanders and Brown lived at the Wilmington Arms and Livingston visited frequently. Compton police, investigating the drive-by shooting, arrived a short time later. The security guard allowed police to enter the complex and in response to police questions concerning the Cadillac, the guard directed police to the car. Compton police impounded Livingston's Cadillac.
The next day, Livingston approached the guard shack and threatened to kill the guard who had directed police to his car. (These crimes are hereinafter referred to as "October 1998 Drive-by Shooting.")
The January 1999 "Guard Shack Shooting"
A few days prior to the evening of January 2, 1999, Kim Grant, a resident of the Wilmington Arms, overheard a conversation between Livingston and Sanders outside her apartment, in which Livingston said to Sanders, something to the effect of: "Just don't be a punk." "Are you down to shoot them, Mother Fuckers?" "Are you down? Are you just a little punk." "Fuck them at the gate [or] 'front.'" According to Grant, Sanders did not verbally respond to Livingston's comments.
Grant gave two police interviews and she testified as to this incident during the subsequent trials in 2000, and 2008 and 2009. In each instance, Grant's version changed. In her first interview in January 1999, she stated the conversation between Livingston and Sanders occurred three weeks before the January shootings and that Livingston's statements were rather vague. Grant stated she assumed Livingston was referring to plans to shoot rival gang members, not the guards at the complex. In an interview in March 2000, however, Grant stated the conversation between Livingston and Sanders occurred the day before the shooting and she assumed Livingston's comments referred to a plan to shoot the guards. At the trial in 2000 she stated the conversation took place a week before the shooting and Grant could not recall that the conversation contained any reference to the guards or the front gate. In 2008, Grant falsely testified that she had lied to the police and never saw Livingston and appellant. She testified this way because she had been threatened by a lot of people and had been threatened that her head would be cut off.
On the evening of January 2, 1999, Grant and two other residents of the Wilmington Arms complex, Michelle L. and her mother, saw a group of males, including Livingston and Sanders enter and exit the complex in the green Cadillac several times. Michelle L. knew both Sanders and Livingston and often saw them together. Later that evening at about 11:30 p.m., Michelle L. and her mother overheard a loud argument outside their apartment near the guard shack. She saw Livingston, appellant, and an unknown African-American male standing near Livingston's green Cadillac that was parked near the guard shack. Livingston and the unknown male were yelling into the guard shack. They yelled, "Fuck you, motherfucker, we'll get you later." The other African-American male responded, "No. No, man, not right now," and "Come on. Let's go. We'll do it later." The men got into the Cadillac and drove away in Livingston's car.
In a 1999 police interview Michelle L.'s mother told the police that Sanders was the male who said they should come back later to "do it."
The next morning, around 5:00 a.m., Michelle L. and her mother heard gunshots. They looked out the window and saw two African-American males running toward Tucker Park, which was next to the apartment complex. One of the males was appellant. Michelle L. spoke to the police the next day but did not tell them everything about the incident because she was scared. (3RT 759.)~
During Sanders' first trial in 2000, Michelle L. testified about the incident in court. She identified Livingston but did not identify appellant. At a subsequent trial in 2008, Michelle L. testified about the incident and identified both Livingston and appellant. She explained that she did not identify Sanders in 2000 because she was sure Livingston was the person who pulled the trigger but she was not sure of Sanders' role in the crimes.
At approximately 5:00 a.m., on January 3, 1999, four security guards for the complex were inside the guard shack. According to one of the guards, Rudolpho Bombarda, he heard "Mother fucker," looked up and saw Livingston pointing an assault rifle at him. Livingston then began firing. He shot Bombarda six times. Several bullets hit Bombarda's bulletproof vest, Bombarda survived and was able to return fire. Livingston fired approximately 15 rounds at the four security guards. Two of the guards died at the scene as a result of their wounds and another was blinded but survived.
Michelle L. and her mother heard the gunfire. They saw Sanders and another unidentified black male standing nearby, facing the guard shack; they observed Sanders run away from the scene. They heard someone say, "Get the gun," and saw two unidentified black males run towards a white van.
According to Grant, she heard noises and walked towards the guard shack. She saw Livingston standing near the door of the shack and then exit and run away. She also saw Sanders standing outside the shack and after the shots, she saw Sanders run away in a different direction than Livingston. In her January 14, 1999, police interview, Grant stated Livingston appeared to be holding a gun when she saw him standing near the guard shack. With respect to Sanders' conduct at the scene, a police detective asked Grant: "[Sanders] was watching out?" and Grant responded: "Uh-huh."
Later that morning, after the police arrived at the scene, Grant walked back to the guard shack. A crowd of about a hundred people was watching what was happening. Appellant was standing in the crowd.
Latasha Hutson also lived in the Wilmington Arms apartments. She knew both Livingston and appellant and saw them together all the time. On the day of the shooting Hutson left her apartment around 8:00 a.m. and saw a crowd of people around the complex. She learned that the security guards had been shot. There was a group of about 20 members of the Park Village Crips standing in the parking lot. Sanders stood among them. Hutson overheard a bystander express that "they could not believe that Livingston aka 'Goldie' and them did it. I can't believe they did it. They said they were going to do it on New Year's. I can't believe they really did it." Someone also commented that Sanders was with Livingston at the time. Sanders confronted the bystanders and said that they did not know what they were talking about.
All of the bullets, shell casings and bullet fragments recovered from the scene came from the same weapon. (These crimes are hereinafter referred to as "the January 1999 Guard Shack Shootings.")
First Trial and Appeal (Sanders I)
In 2000, in Los Angeles County Superior Court case No. TA100812, Sanders was charged in a 12 count information with murder in Counts 1 and 2 and attempted murder in Counts 3 and 4 under the theory Sanders "aided and abetted" Livingston in committing the January 1999 Guard Shack Shooting. He was also charged with robbery in Counts 8 and 9, assault with a firearm in Counts 10 and 11 and kidnapping for robbery in Count 12 all arising out of an unrelated robbery incident at a car dealership in May 1999 ("May 1999 Crimes"). The information further alleged various special circumstances and enhancements. Livingston was jointly charged with Sanders in Counts 1-4, and separately charged in Counts 5-7 with attempted murder for the October 1998 Drive-by Shooting incident.
Count 12 was dismissed prior to trial.
These included: (1) special circumstances of multiple murder and lying in wait on Counts 1 and 2; (2) criminal street gang enhancements on Counts 1 through 7; (3) use of a firearm by the principal (Livingston) in commission of Counts 1 to 4; and (4) personal use (by Sanders) of a firearm in the commission of Counts 9 to 12.
Prior to trial, Sanders filed a motion for a separate trial from Livingston and a motion to sever Counts 1-4 from 8-12. The trial court denied the motion finding Sanders failed to satisfy the test for severance. The trial court considered the cases against Sanders in Counts 1-4 and 8-12 equally strong and thus, concluded Sanders had not demonstrated the requisite prejudice to warrant separate trials.
During trial, in addition to the evidence relating to the various crimes, the prosecution presented gang evidence. Specifically, the prosecution introduced evidence Livingston and Sanders were members of the Park Village Crips Street Gang and the Park Village Crips Street Gang constituted a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b).
All statutory references are to the Penal Code unless otherwise indicated.
The jury convicted Sanders of two counts of second degree murder (§ 187, subd. (a)) and two counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)), with true findings on firearm allegations (§ 12022, subd. (a)(1)), gang allegations (§ 186.22, subd. (b)(1)), and lying in wait and multiple murder special circumstance allegations (§ 190.2, subds. (a)(3) & (a)(15)) based on the January 1999 Guard Shack Shooting. The jury also convicted Sanders of two counts of second degree robbery (§ 211) and two counts of assault with a firearm (§ 245, subd. (a)(2)), with true findings on firearm allegations (§§ 12022.53, subd. (b), 12022.5, subd. (a)) based on the May 1999 Crimes. The court sentenced Sanders to a total term of 55 years to life in prison. Sanders appealed his convictions and sentences.
On appeal in 2002, this Court reversed Sanders' convictions and sentences, finding that the murder and attempted murder counts, based on the January 1999 Guard Shack Shooting, were erroneously joined with the robbery and assault counts, which were based on the May 1999 Crimes. (See People v. Sanders (July 17, 2002, No. B142864) [2002 WL1574997].) We also found, however, that the evidence of the October 1998 Drive-by Shooting would have been admissible in a separate trial for the January 1999 Guard Shack Shooting because the Drive-by Shooting incident disclosed the motive and intent for the subsequent deadly attack on the guards.
Post appeal Proceedings and Current Proceedings
In 2003, Sanders entered no contest pleas to two counts of robbery based on the May 1999 Crimes and was sentenced to 10 years in prison.
In 2008, in Los Angeles County Superior Court case No. TA094940, Sanders was recharged with two counts of murder and two counts of attempted willful, deliberate, and premeditated murder based on the January 1999 Guard Shack Shooting. After the jury deadlocked, the trial court declared a mistrial.
In 2009, Sanders was again tried on the murder and attempted murder charges based on the January 1999 Guard Shack Shooting. The court also admitted evidence of the October 1998 Drive-By Shooting to show the motive for the subsequent crimes.
The jury convicted Sanders of two counts of second-degree murder and two counts of attempted willful, deliberate, and premeditated murder. As to all counts, the jury found that a principal personally and intentionally discharged a firearm causing great bodily injury or death (§12022.53, subds. (c), (d), & (e)(1)) and that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court sentenced Sanders to two consecutive sentences of 15 years to life for the murder counts and two consecutive life sentences for the attempted murder counts. The trial court stayed the firearm and gang enhancements.
Sanders appeals.
DISCUSSION
Before this court Sanders asserts a number of reversible errors about his convictions and sentences. Sanders asserts the court erred in denying his claim that the prosecutor used one of his peremptory challenges in a racially discriminatory manner; his counsel was ineffective for failing to seek exclusion of evidence of the October 1998 Drive-by Shooting; his aggregate sentences were precluded by state law double jeopardy principles; and that the court erred in requiring him to pay a DNA penalty based on his convictions. As we shall explain, only Sanders' complaints about his sentences have merit.
I. Prosecutor's Use of Peremptory Challenges
On appeal, Sanders claims that the court, in denying his Wheeler/Batson motion, failed to make an express or implied finding that the prosecutor's racially neutral reason for exercising a peremptory challenge to remove an African-American juror was the genuine reason he excused the juror.
A. Factual Background
During the jury selection proceedings, the prosecutor exercised a peremptory challenge against prospective juror No. 29. Sanders' counsel promptly made a Wheeler/Batson challenge, pointing out that No. 29 was an African-American woman. The following exchange occurred:
Sanders' Counsel: Your Honor, the juror that was just excused, she's number 29. I believe she appears to me to be an African-American female and I'm making a Batson-Wheeler motion.
The Court: All right. Court is going to find the prima facie burden. I'm going to turn it over to the prosecution to give me your reasons.
Prosecutor: The first comment is that I'm not convinced that she's African-American. However, I did have a female black on my notation that it's a possibility. The next point would be the juror's fingernails are approximately, I don't know, four inches long. That shows me a notable eccentric side. And in addition to that, she's a fashion designer. That alone doesn't mean much, but we take that with the general overall appearance of her here in court and specifically the very lengthy fingernails, I felt that she was somebody who was too much of wild card to keep around, that she would be somebody who would be - the goal, the point of the prosecution is to get a jury who get along. The long nails is [sic] not a guarantee. It is a strong indication that there's eccentric feelings and just as hairstyles and clothing and tattoos and goatees and those kind of things. It gives us insight into jurors' attitudes and I think that was the largest and most basic reason.
Sanders' Counsel: I didn't even notice her hand nor her fingernails. I would ask counsel to further comment beyond her fingernails that he finds eccentric.
Prosecutor: The outfit, the fashion designer background occupation, and the fingernails specifically were of note to me. That's it.
Sanders' Counsel: Could counsel describe the outfit for the record. It's very vague.
Prosecutor: In addition to wearing, like, a tight white sweat suit, she also had four and a half inch fingernails. I'm never going to keep a juror on the case that has fingernails like that, period.
Sanders' Counsel: Again, Your Honor, I just like the record to know I did not note any long fingernails. Her outfit appears - it doesn't appear to be a gray sweat jacket.
The Court: I actually happened to notice her fingernails maybe because of the angle that I'm at and I would note that I did notice them. Her clothing, for the record, appears to be either white or gray sweat suit outfit.
Prosecutor: Other than the fingernails, I probably was not going to kick her. Her knowledge of the case was of concern to me. I didn't have a chance to ask more about the case. Then she was unsure. She indicates she thinks she knew about it. I didn't give her any details, enough to know, so I was on the fence. But with the fingernails, I'm not going to keep a juror from Mars with those fingernails.
Sanders' Counsel: I just want to add that once the juror was seated, the Court asked her about once she was from the audience, she said based on what [the Prosecutor] said, she thought she knew the case, but now she realizes she was not familiar.
Prosecutor: She doesn't know enough about it to say that.
The Court: The record will speak for itself. She indicated that she didn't based on what follow-up that you gave. And I don't know what kind of follow-up that you gave, that the record speaks for itself as to what she says. I think that the People have set forth a race neutral basis for exercising the peremptory and I'll deny your motion. (Emphasis added.)
B. Governing Legal Principles
Although peremptory challenges are intended to allow parties to reject a certain number of jurors for any reason at all, a prosecutor's use of peremptory challenges to strike prospective jurors on the basis of bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); People v. Hawthorne (2009) 46 Cal.4th 67, 77-78.) Discriminatory peremptory challenges also violate a defendant's right to Equal Protection under the Fourteenth Amendment to the federal Constitution. (Batson v. Kentucky (1978) 476 U.S. 79, 88 (Batson).)
In essence, the issue raised by a motion brought under Wheeler/Batson is whether a pattern of systematic exclusion exists in the selection of the jury. (People v. Gore (1993) 18 Cal.App.4th 692, 705.) However, a defendant may raise a Wheeler/Batson claim even if only one potential juror has been excluded on the basis of group or racial identity. "The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. [Citation.]" (People v. Silva (2001) 25 Cal.4th 345, 385.)
Batson established a three-step procedure to determine whether such a practice has occurred. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts give rise to an inference of discriminatory purpose.' Second, once the defendant has made out a prima facie case, the 'burden shifts back to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. Third, '[i]f a race neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.'" (Johnson v. California (2005) 545 U.S. 162, 168; see also People v. Hawthorne, supra, 46 Cal.4th at p. 78.) The same three-step procedure is used for both federal and state constitutional claims. (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
To state a prima facie case of discrimination, the defendant must (1) raise the issue in a timely fashion, (2) make as complete a record as feasible, (3) establish that the persons excluded are members of a cognizable class, and (4) produce evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (People v. Gray (2005) 37 Cal.4th 168, 186.) "'An "inference" is generally understood to be a "conclusion reached by considering other facts and deducing a logical consequence from them."' [Citation.]" (Ibid.) Once a defendant has established a prima facie case, the burden shifts to the prosecutor to provide group-neutral reasons for each challenge. The prosecutor "need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice. [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 136.) A "'hunch'" about a prospective juror or an arbitrary excusal may be a sufficient justification if it shows the prosecutor exercised a peremptory challenge for reasons other than impermissible group bias. (People v. Williams (1997) 16 Cal.4th 635, 664 (Williams).) A prosecutor's perception of a prospective juror's body language may constitute a sufficient nondiscriminatory reason. (Arias, supra, 13 Cal.4th at p. 136.) A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. (See People v. Turner (1994) 8 Cal.4th 137, 165.) If the prosecutor provides race-neutral reasons, the trial court must then decide whether those reasons are untrue and pretextual. (People v. Ayala (2000) 24 Cal.4th 243, 261; People v. Alvarez (1996) 14 Cal.4th 155, 196-197.)
"'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges 'with great restraint.' [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citations.]'" (People v. Lenix (2008) 44 Cal.4th 602, 613-614, fn. omitted.) "'In such circumstances, [we] will not reassess good faith by conducting [our] own comparative juror analysis. Such an approach would undermine the trial court's credibility determinations and would discount "'the variety of [subjective] factors and considerations,'" including "prospective jurors' body language or manner of answering questions," which legitimately inform a trial lawyer's decision to exercise peremptory challenges.' [Citation.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1197.) Moreover, the absence of express findings by the trial court does not show it did not satisfy its obligation to make a "sincere and reasoned" effort to evaluate the nondiscriminatory reasons offered. (Id. at pp. 1197-1198.) "Wheeler does not require the trial court to conduct further inquiry into the prosecutor's race-neutral explanations if . . . it is satisfied from its observations that any or all of them are proper. [Citation.]" (Jackson, supra, 13 Cal.4th at p. 1198.) The trial court's ruling on a Wheeler motion is thus reviewed "deferentially, considering only whether substantial evidence supports its conclusions." (People v. Bonilla, supra, 41 Cal.4th at p. 341.)
C. Analysis
Preliminarily we note that the trial court found a prima facie case under Wheeler/Batson and requested the prosecutor's reasons for the peremptory challenge. Thus, the first and second steps of the Wheeler/Batson analysis are not at issue in this appeal. (See Hernandez v. New York (1991) 500 U.S. 352, 359, People v. Welch (1999) 20 Cal.4th 701, 745-746 [when trial court requests the prosecutor to state reasons for using peremptory challenges, the question of whether defendant established a prima facie case is moot].)
On appeal Sanders challenges only the trial court's performance at Wheeler/ Batson's third step. Sanders does not contend that the reason the prosecutor articulated for excusing the juror—her four-inch fingernails-is racially discriminatory. Likewise he is not claiming that there is an insufficient record to establish the reason offered. Instead Sanders argues that the court failed to make an express (or implied) finding that the proffered race-neutral justification was subjectively genuine. In other words, Sanders complains that the trial court expressly failed to find that the reason articulated actually motivated the use of the peremptory, and that no such finding can be implied from the record. Sanders asserts that we should not defer to the trial court's conclusion because that court did not make a "sincere and reasoned attempt" to evaluate the credibility of the prosecutor's proffered reasons, but rather denied the motion without any express finding or discussion on the issue of the prosecutor's sincerity commenting only—"I think that the People have set forth a race neutral basis for exercising the peremptory and I'll deny your motion."
We disagree. The trial court denied the motion only after observing the relevant voir dire and listening to the prosecutor's reason supporting the use of the peremptory and to the defense argument. The court questioned the prosecutor about the reason and after the defense lawyer remarked that she had not seen the juror's "long" fingernails, the court noted that it had observed them.
At the third stage of the Wheeler/Batson inquiry, "the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." (Miller-Ell v. Cockrell (2003) 537 U.S. 322, 339.) In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. (See Wheeler, supra, 22 Cal.3d at p. 281.) Nothing in the record suggests that the trial court was unaware of its duty to evaluate the credibility of the prosecutor's reasons or that it failed to fulfill that duty. (People v. McDermott, supra, 28 Cal.4th at p. 980; People v. Williams (1997) 16 Cal.4th 153, 189-190.) Moreover, the trial court was not required to explain its findings on the record because the prosecutor's reasons were neither inherently implausible nor unsupported by the record—the court observed: "I actually happened to notice her fingernails maybe because of the angle that I'm at and I would note that I did notice them." (People v. Silva, supra, 25 Cal.4th at p. 386 [finding that where the reasons cited by the prosecutor there were not supported by the record and were found to be inherently implausible, the trial court must do more than make a global finding that the reasons were sufficient].) Here the court expressly found that the reason offered to excuse juror No. 29 was race-neutral and by denying the motion, the court also impliedly found that the prosecutor's reason was sincere and genuine. We presume the court understood its legal obligation as to step three and have no reason to conclude that it failed to appreciate or carry out its duties. Thus, the court had substantial evidence to support its implied finding the prosecutor's justifications for excusing this juror on a peremptory challenge was not pretextual and that the court did not handle the Wheeler/Batson motion improperly. (People v. Lewis II (2008) 43 Cal.4th 415, 470-472 [appellate court can infer from the trial court's comments, its opportunity to observe the proceedings, the jury and the prosecutor, that the lower court found prosecutor's expressed reason to be sincere].)
In reaching this conclusion we observe that our interpretation finds support in a recent case from the California Supreme Court, People v. Jones (2011) 51 Cal.4th 346, 357-362. In Jones after the prosecutor used a number peremptory challenges to remove African American jurors and alternates from the jury panel, Jones objected under Wheeler/Batson. (Id. at p. 357.) The trial court found a prima facie case of discrimination and asked the prosecutor to explain his reasons for excusing the jurors. The prosecutor related that he excused one juror because he had a family member accused of a crime, another juror because his answers reflected that he was "buying into some sort of defense theory, without hearing any evidence;" and he excused another juror because she did not fully complete the juror questionnaire and belonged to a controversial church. (Id. at pp. 358-359.) After offering the defense an opportunity to respond, the court denied the motion, ruling, "now having heard from the prosecution, it appears that the reasons that these persons were excluded from the jury was for nonracial purposes and racially neutral purposes." (Id. at p. 359.) In assessing the third-step of the Wheeler/Batson analysis the Supreme Court characterized the trial court's resolution as: "[t]he trial court denied defendant's motion, implicitly finding the prosecutor's explanation credible and expressly finding his reasons to be race neutral." (Id. at p. 360.) The Jones Court endorsed the lower court's interpretation of the prosecutor's conduct, finding that the trial court had engaged in a sincere and reasoned attempt to determine the validity of the prosecutor's reasons. This case is analogus to Jones. The lower court's articulation of its ruling in Jones is not meaningfully different from the court's comments in this case. Like the trial court in Jones, the court here expressly found that the reason articulated by the prosecutor for excusing Juror 29 was racially neutral, and as in Jones, the court in this case implicitly concluded the prosecutor's reason was genuine when it denied the motion.
In sum, based on our review of the record, we conclude substantial evidence supports the findings of the trial court that the prosecutor's peremptory challenges were based on genuine nondiscriminatory reasons and not group bias. The trial court did not err in denying Sanders' Wheeler/Batson motion.
II. Ineffective Assistance of Counsel for Failing to Object to October 1998 Drive-by Evidence under Evidence Code Section 352
Sanders contends defense counsel's failure to raise an Evidence Code section 352 objection to the evidence of the October 1998 Drive-By Shooting constituted ineffective assistance of counsel.
A. Relevant Legal Principles
An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).) "In determining whether counsel's performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citation.]" (People v. Montoya (2007) 149 Cal.App .4th 1139, 1146-1147.) Counsel's performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. In order for a defendant to prevail on an ineffective assistance of counsel claim on direct appeal, the record must affirmatively show the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.) Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." "Judicial scrutiny of counsel's performance must be highly deferential. . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland v. Washington, supra, 466 U.S. at p. 690.)
The standard of appellate review of a claim of ineffective assistance of counsel is well established. Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel and there is a 'strong presumption that counsel's conduct falls within the wide range of professional assistance. "[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." (Strickland v. Washington, supra, 466 U.S. at pp. 690-691.) Tactical errors are generally not deemed reversible; and counsel's decision-making must be evaluated in the context of the available facts. In addition if the record sheds no light on why counsel acted or failed to act in the challenged manner, the court will reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance. (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Moreover, a reviewing court need not determine "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (In re Fields (1990) 51 Cal.3d 1063, 1079.) Defendant must affirmatively demonstrate prejudice. It is not sufficient for the defendant to show the error had some "conceivable effect" on the outcome of the proceeding; defendant must prove that there is a "reasonable probability," that absent the errors the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
Evidence Code Section 352 provides: "the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) This court will not disturb a trial court's exercise of discretion under section 352 absent a showing the court acted in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Evidence Code section 352 applies to prevent undue prejudice, that is "'evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues' not the prejudice 'that naturally flows from relevant, highly probative evidence.'" (People v. Padilla (1995) 11 Cal.4th 891, 925.) Moreover, the undue prejudice must substantially outweigh its relevance. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
With these principles in mind, we turn to appellant's claim of ineffective assistance.
B. Analysis
Sanders claims his trial counsel should have filed a motion to exclude all evidence of the October 1998 Drive-By Shooting under Evidence Code section 352 because the inflammatory nature and prejudicial affect of the evidence far outweighed its probative value, and that his counsel was ineffective for failing to assert that objection. We do not agree. Sanders has not demonstrated his counsel's performance fell below an objective standard of reasonableness.
Preliminarily we note that the record sheds no light on why counsel acted or failed to act in the challenged manner. Sanders' trial counsel's rationale and strategy in defending the case are not disclosed in the record before us. Nor does Sanders contend that his counsel was asked for an explanation and failed to provide one. Against this silent record counsel's decision-making must be evaluated in the context of the circumstances. In view of the appellate history of this case, we cannot say that Sanders' counsel was incompetent for failing to seek exclusion of this evidence.
In Sanders I, we determined that the evidence of the October 1998 Drive-by Shooting would have been admissible in a separate trial of the January 1999 Guard Shack shooting. Specifically this court opined:
[E]vidence of the Drive-by Shooting/Counts 5-7, including the gang evidence presented on Counts 5-7 would have been admissible in a separate trial for Guard Shack Murders/Counts 1-4. The Drive-by Shooting incident disclosed the motive and intent for the subsequent deadly attack on the guards. Livingston was angry with the guards and threatened retaliation against them because a guard assisted the Compton police in locating Livingston's Cadillac, which had been identified as the car involved in the drive-by shooting. Sanders was not charged in Counts 5-7. However, his knowledge of the incident and his knowledge of the guard's role in assisting the police may be reasonably inferred because Sanders was seen in the Cadillac by the security guard shortly after the drive-by shooting before the police arrived to impound the vehicle. Sanders' presence in the Cadillac after the Drive-by Shooting would be relevant and admissible in the trial of Counts 1-4 because it suggests Sanders was Livingston's intimate gang associate and as such, Sanders would be privy to knowledge of Livingston's plan to seek revenge. It is also relevant on Counts 1-4 because this evidence lends credence to the prosecution's theory Sanders was not an innocent by-stander outside the guard shack at the time of the fatal shootings, and instead, Sanders was present because he knew the guard had cooperated with police and because Sanders intended to lend aid and support to Livingston's plan to seek revenge against the guards. [¶] Because we conclude evidence on Counts 5-7 would be admissible in a trial of Counts 1-4, then any prejudice as a result of joining these counts in a single trial is negated."
Of course in Sanders I, this court was assessing admissibility under Evidence Code section 1101, subdivision (b) and the factors relating to whether the charges should have been tried separately. We did not specifically assess whether the evidence of the October 1998 Drive-by Shooting would be admissible under Evidence Code section 352 and thus our opinion could not be construed as "law of the case" on the application of Evidence code section 352. Nonetheless, in Sanders I we concluded that evidence of the1998 Drive-by Shooting was not unduly prejudicial:
In contrast to the senseless manner of the deadly ambush on the guards, evidence of Drive-by Shooting was not unusually inflammatory. The evidence on Counts 1-4 was sufficiently gruesome such that Counts 5-7 could not have further inflamed or prejudiced the jury against Sanders. In addition, Counts 1-4 and
Counts 5-7 both involve gang evidence and thus joining the counts in one trial did not expose the jury to gang evidence they would not otherwise have heard in separate trials on these counts. Moreover, none of the evidence in either case is comparatively weaker such that the "spillover" effect of the aggregate evidence would have likely altered the outcome on any of the charges. (Emphasis added.)
This analysis in Sanders I strongly suggests that the evidence of the drive-by shooting would have been admissible under Evidence Code section 352 had that objection been raised in the first trial.
Furthermore and more significantly in this appeal, the lower court would have properly overruled any objection on the basis of section 352 in the current trial. First, as this court concluded in Sanders I, the evidence of the October 1998 Drive-by Shooting was highly probative of appellant's motive and intent with respect to the January 1999 Guard Shack Shooting. That Sanders was in the car with Livingston immediately after the drive-by shooting creates the reasonable inference that Sanders participated in a drive-by shooting with Livingston in rival gang territory a few months before the guard shack shooting. It also showed that Sanders was aware Livingston's motive for the ambush on the guards, i.e., because a guard told the police the location of Livingston's car the night of the drive-by shooting. The evidence was thus relevant to show that Sanders knew about Livingston's plan to shoot the guards and was likely a participant in the crime rather than an innocent bystander. Second, there was no danger of undue prejudice. This was not a case where the source of the evidence concerning the January 1999 Guard Shack Shooting was affected by information concerning the October 1998 Drive-by Shooting. Third, as this court observed in Sanders I, the drive-by shooting that injured a single person in the leg, was considerably less inflammatory than the Guard Shack shooting, which was an ambush of four victims who were repeatedly shot at from close range. It was not unduly prejudicial or inflammatory in comparison to the charged crime. Even though Sanders was not charged for his participation in the October 1998 Drive-by Shooting, because the drive-by was less serious than the guard shack crimes we doubt that the jury would have sought to punish Sanders for the guard shack shooting simply because he had escaped punishment for the drive-by shooting.
Sanders brought a new trial motion after the trial in which he argued that the evidence of the October 1998 Drive-by Shooting was unduly prejudicial. The trial court rejected the argument, finding that the evidence had been properly admitted. Since the trial court found that the evidence had been properly admitted, it is apparent that the court would have denied any pretrial motion to exclude it.
In view of the foregoing, an objection to this evidence under section 352 is without merit, and accordingly, Sanders has not shown his counsel was ineffective for failing to object to the October 1998 Drive-by Shooting in the trial court. (See People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make a meritless objection does not constitute ineffective assistance of counsel]; People v. Cudjo (1993) 6 Cal.4th 585, 616 ["[b]ecause there was no sound legal basis for objection, counsel's failure to object to the admission of the evidence cannot establish ineffective assistance"].)
III. Double Jeopardy Challenge to Sanders' Sentence
Sanders further asserts that his sentence violates the due process and double jeopardy clauses of the California Constitution because it exceeded the sentence imposed for the same offenses during his first trial.
A. Background facts
First Trial. In 2000, at the first trial for the convictions on the counts related to the January 1999 Guard Shack Shooting, the trial court imposed a sentence of two years for the gang enhancement (on Count 1) followed by consecutive indeterminate sentences of 15 years to life and 25 years to life for the murder conviction and the firearm enhancement on Count 1. The sentences for the other murder and attempted murder convictions, Counts 2-4, ran concurrently. Thus, the sentence was an aggregate indeterminate sentence of 40 years to life, consecutive to a determinate term of two years.
The authorized aggregate sentence imposed at the first trial for the January 1999 Guard Shack Shooting was 40 years-to-life.
Because the court sentenced appellant to a life term, the two-year sentence for the gang enhancement was unauthorized. (See § 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.)
For the unrelated May 1999 Crimes, the court imposed a consecutive sentence of 13 years for count 8 (robbery and a firearm enhancement); a concurrent sentence of 13 years for count 9 (robbery and a firearm enhancement); a concurrent terms of 3 years for counts 10-11 (assault with a firearm). Thus, the sentence for the robbery and assault counts was a consecutive, determinate term of 13 years. Thus, the aggregate sentence for all charges after the first trial was 55 years to life.
After the convictions were reversed on appeal because the January 1999 Guard Shack Shootings had been improperly tried with the unrelated May 1999 Crimes, Sanders pled guilty to two counts of robbery and admitted one allegation that he personally used a firearm for the May 1999 Crimes. In 2003, pursuant to a plea agreement, the court sentenced Sanders to 10 years in prison for those crimes.
Third Trial. In 2009, after Sanders had served his sentence for the May 1999 Crimes, and after the third trial on the January 1999 Guard Shack Shootings, the court imposed two terms of 15 years to life and two terms of life, all of which ran consecutively. Accordingly, at the third trial Sanders received an aggregate indeterminate sentence of 44 years to life for the January 1999 Guard Shack Shootings.
Under section 3046, subdivision (a)(1), a life sentence is a sentence of 7 years to life. (See § 3046, subd. (a)(1) ["No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: (1) A term of at least seven calendar years."]; People v. Concha (2010) 182 Cal.App.4th 1072, 1091 [in doubling a life sentence under the Three Strikes Law, the resulting sentence is 14 years to life].)
B. Governing Law
If a defendant successfully challenges his conviction and obtains a new trial, the due process and double jeopardy clauses of the California Constitution prohibit the imposition of a greater sentence following retrial. (People v. Henderson (1963) 60 Cal.2d 482, 497; People v. Thompson (1998) 61 Cal.App.4th 1269, 1275.) In Henderson, the Court held "a defendant is not required to elect between suffering an erroneous conviction to stand unchallenged and appealing therefrom at the cost of forfeiting a valid defense to the greater offense . . . ." (People v. Henderson, supra, 60 Cal.2d at p. 496.) "'"[A] defendant faced with such a 'choice' takes a 'desperate chance' in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma."' [Citation.]" (Ibid., quoting Gomez v. Superior Court (1958) 50 Cal.2d 640, 651-652, quoting Green v. United States (1957) 355 U.S. 184, 193.) In sum, "[a] defendant's right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal." (Henderson, supra, 60 Cal.2d at p. 497; see also People v. Hood (1969) 1 Cal.3d 444, 459 [on retrial, court could impose sentence of not more than 14 years, the defendant's maximum term had he not appealed].)
For purposes of double jeopardy, indeterminate sentences are compared by looking at the minimum parole dates.
An exception to application of Henderson arises "when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement." (People v. Serrato (1973) 9 Cal.3d 753, 764, fn. omitted.)
In People v. Ali (1967) 66 Cal.2d 277, the defendant was originally sentenced concurrently on three counts of credit card fraud. On resentencing following appeal, he received consecutive terms. In light of Henderson, the Supreme Court unanimously found error: "[w]here a defendant has been sentenced to concurrent terms and then upon a retrial is sentenced to consecutive terms for the same offenses, his punishment has been increased by indirect means. The reasoning which prevents an increase by direct means would seem to be applicable in such a situation, as a defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal." (Id. at p. 281.)
C. Analysis
Before this court, Sanders complains that the aggregate sentence he received at the third trial is greater than the aggregate sentence he received at the first trial, for the same offenses, and thus his sentence violates double jeopardy. Respondent does not dispute that the sentence at the third trial for the convictions for the guard shack murders is longer that the sentence imposed for those convictions at the first trial. Instead, respondent maintains that the sentence at the third trial was proper because it did not exceed the aggregate sentence imposed after the first trial for the guard shack convictions and the unrelated May 1999 crimes. Respondent's argument is unconvincing.
Respondent claims that Sanders forfeited this claim by failing to object at sentencing. Sanders contends that his counsel was not prepared to object at sentencing and was ineffective for failing to raise the issue. We need not resolve these contentions. Because Sanders' double jeopardy claim involves an important constitutional right and because it raises concerns about the effectiveness of Sanders' legal representation at sentencing, we exercise our authority to address the merits of the double jeopardy claim. (See e.g. In re Sheena K. (2007) 40 Cal.4th 875, 887 fn. 7.)
The trial court is prohibited by principles of double jeopardy from imposing a greater sentence with respect to the charges of which the defendant is first convicted and from which he or she successfully appeals. (See People v. Bolton (2011) 192 Cal.App.4th 541 (Bolton); People v. Villanueva (2011) 196 Cal.App.4th 411, 420 [following Bolton and rejecting the defendant's double jeopardy claim where the trial court imposed a sentence on an enhancement after retrial when the jury in the prior trial failed to reach a verdict on that enhancement allegation ].) In determining whether a sentence violates double jeopardy, the court focuses only on the sentence imposed in the first trial on those charges from which the defendant successfully appeals and are then retried in the same trial.
However, the rule does not apply when the increase to the defendant's aggregate sentence is due to the retrial of a count on which the jury hung (and the defendant was therefore not sentenced) at the initial trial or to charges that could have but were not originally prosecuted in the first trial. Bolton is instructive. In Bolton, the defendant was first convicted of several offenses, but the jury hung on an additional offense, a violation of Penal Code section 422 (criminal threats). The trial court dismissed the criminal threats count and sentenced the defendant on the remaining offenses. After the defendant's conviction was reversed on appeal, the prosecution retried the defendant on all offenses, including criminal threats, and the defendant was convicted as charged. Defendant's aggregate sentence was increased by a consecutive term for the criminal threats conviction, and defendant appealed, raising double jeopardy and due process arguments against his increased aggregate sentence. (People v. Bolton, supra, 192 Cal.App.4th at p. 547.) On appeal, Division One of the Fourth Appellate District concluded that a case fell outside the prohibition against increased aggregate sentences following successful appeals when the new sentence "is based on additional criminal convictions that were not at issue in the successful appeal and on which the defendant could have been retried without violating double jeopardy." (Id. at p. 549.)
The Bolton court explained as follows: "If the prosecutor had tried Bolton on [criminal threats] in a proceeding separate from a trial on the other charges, Bolton could have been convicted and sentenced on [that count] in that separate case. Here, the prosecutor combined the retrial of [the criminal threats charge] (which was retried after a jury was unable to reach a unanimous verdict on that count, and not the result of a reversal on appeal), with the retrial of the charges on which Bolton had originally been convicted (a retrial that did result from appellate reversal). The trial court was prohibited by principles of double jeopardy from imposing a greater sentence with respect to the charges of which Bolton was first convicted and from which he successfully appealed. As to those counts, the trial court did not impose a greater sentence on remand. Rather, the court imposed the same sentence on those counts. However, the court also imposed an additional sentence on [criminal threats]—a count on which Bolton was not convicted in the first trial, and as to which Bolton was potentially subject to retrial regardless of the outcome of his prior appeal. The fact that the court imposed a sentence on [criminal threats] after Bolton successfully appealed his convictions on the other counts does not mean that the additional sentence violates the California Constitution's principles of double jeopardy. There is nothing patently unfair about returning a defendant to the same position that he was in prior to his first trial." (People v. Bolton, supra, 192 Cal.App.4th at pp. 548-549.)
This case differs factually from Bolton. Indeed, here based on our conclusion in Sanders I, the charges joined in the first trial—the May 1999 Crimes and the January 1999 Guard Shack Shooting—could not be re-tried together. Thus, as noted elsewhere in a separate proceeding in 2003 Sanders pled to the May 1999 Crimes, and was sentenced to 10 years for those crimes. Nonetheless, the rule announced in Bolton and followed in Villanueva should apply here. In our view, due process and fairness dictates that having served his sentence for the May 1999 Crimes prior to his third trial, the original sentence imposed on the May 1999 Crimes should not be considered in assessing the validity of the sentence on his convictions for the January 1999 Guard Shack Shootings. Instead under Bolton, for the purposes of double jeopardy, the proper comparison is between the aggregate sentence on the guard shack shootings imposed in 2000 with the sentence imposed for those crimes in 2009.
Respondent has cited no relevant authority to support its position that the current sentence must be compared with the prior sentence for the same charges and other unrelated charges for which Sanders has already served time. The cases upon which respondent relies do not support its contention because they involve unauthorized sentences which are not subject to double jeopardy prohibitions (People v. Hill (1986) 185 Cal.App.3d 831, 833), or where the sentence for the same conviction was shorter than that imposed in the prior trial, (People v. Craig (1998) 66 Cal.App.4th 1444, 1446, 1449), or where the sentence was the same length as the prior sentence, and/or where the defendant did not challenge the sentence on double jeopardy grounds (People v. Burbine (2003) 106 Cal.App.4th 1250, 1254-1264).
In sum, because the court at retrial imposed a longer sentence on the January 1999 Guard Shack Shootings, than had been imposed for those convictions in 2000, Sanders' sentence violates due process and the double jeopardy clauses of the California Constitution. Thus, Sanders sentence must be vacated and he must be resentenced to an aggregate term no greater than that he received on these charges in the first trial.
IV. DNA Fine
At sentencing, the trial court imposed several fines, assessments, and penalties. Specifically, as to each offense, the trial court imposed: a restitution fine, a parole revocation restitution fine, a court security assessment, a criminal conviction assessment, and a DNA penalty pursuant to Government Code section 76104.7, subdivision (a).
Sanders contends and the respondent concedes, that the imposition of a DNA penalty or penalties was unauthorized. A penalty under Government Code section 76104.7, subdivision (a), is imposed on fines, penalties, and forfeitures. But may not be imposed on a restitution fine (id., subd. (c)(1)), on a court security assessment (§ 1465.8, subd. (b); People v. Valencia (2008) 166 Cal.App.4th 1392, 1396), or on a criminal conviction assessment (Gov. Code, § 70373, subd. (b)). It could therefore not be imposed on any of the fines or assessments assessed in this case. Therefore, the Government Code section 76104.7, subdivision (a), DNA penalty should not have been imposed.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing in accord with views expressed in this opinion. The judgment is affirmed in all other respects.
WOODS , J.
We concur:
PERLUSS, P.J.
JACKSON, J.