Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, Super. Ct. No. BA115847, William F. Fahey, Judge.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone F. Swain.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Todd Russell Stroud.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Richard Breen and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Todd Stroud and Tyrone Swain appeal from their convictions for second degree murder and other crimes arising from a violent armed robbery. Each joins in the applicable contentions raised by the other. Stroud challenges the instructions on murder; the sufficiency of the evidence to support the murder conviction; and the denial of his motion for acquittal. Swain challenges the admission of a videotaped interview with a key witness and the denial of his severance motion. In supplemental briefs, each challenges the sentence imposed in light of the Supreme Court’s decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We granted rehearing in order to consider the effect of the then recent decision of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I). In that case, the court held that upper term and consecutive sentencing under the California determinate sentencing law did not offend the right to jury trial or to determinations made under the beyond a reasonable doubt standard. We affirmed. The United States Supreme Court then granted certiorari to review that decision and ultimately, in Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 871], rejected the holding in Black I that upper term sentencing was unaffected by the high court decisions. That court remanded the case to this court for further proceedings consistent with its opinion in Cunningham. While the case was pending on remand, the California Supreme Court decided two further cases bearing on the issue, People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We afforded the parties an opportunity to present letter briefs arguing the application of those decisions, which we refer to as the “Cunningham issues,” and they have done so. We have reviewed their arguments. Following California Supreme Court authority, we conclude that the sentencing in Swain satisfies constitutional requirements, and that the sentencing in Stroud must be remanded for resentencing consistent with Sandoval.
The remainder of this opinion is the same as our earlier opinion, except for our treatment of the Cunningham issues (part VI of the Discussion portion of this opinion) and the Disposition.
We also reject the claim of instructional error and conclude there was substantial evidence to support the second degree murder verdicts. The trial court did not err in denying the motion for acquittal. The videotaped statement was properly admitted, and the decision to allow the jury to view it in its entirety was a reasonable tactical choice made by defense counsel. The trial court did not abuse its discretion in denying Swain’s motion to sever.
FACTUAL AND PROCEDURAL SUMMARY
This case arises from an armed robbery at the Fat Rat recording studio in Los Angeles in May 1995. The primary prosecution witness was Jennifer Lucas, who was dating Swain as of May 1995 and previously had dated Stroud. The three were friends and were often together. Earlier in the month, Lucas had met Gregory Everett, who invited her to come to the Fat Rat studio. She had been to the recording studio several times to explore making a recording. The studio was in two rooms on the second floor of a building with several businesses. On May 24, 1995, Lucas told Swain and Stroud that she planned to go to the studio in the afternoon. They said they wanted to see the studio, and would come by after picking up a friend at the airport.
Lucas went to the studio and found Delven Rutledge, who was a producer, Dion Smith, a singer, and Michael Alexander in the studio. Lucas told Rutledge that Swain and Stroud planned to visit the studio. Rutledge said he had seen them at an Ice Cube video shoot and did not like them. While Lucas was talking to Rutledge, Stroud called her on his cell phone to say they were outside the studio. Lucas went downstairs to meet Stroud, Swain, and their friend, Keith Vaden. Vaden was carrying a large duffle bag. The four of them went upstairs to the studio.
As the group talked, Rutledge became increasingly uncomfortable, announced that he was leaving, and stood up. Lucas, Stroud, Swain, and Vaden walked toward the door. Stroud was in front of Lucas and Swain was behind her. When Stroud got to the door, he turned around with a silver gun in his hand and said the others were not going anywhere. Swain had pulled out a black gun that looked like an automatic. Vaden took what Lucas described as a sawed-off shotgun from the duffle bag. Rutledge described Vaden’s weapon as an AK-47, Swain’s as a nine-millimeter handgun, and Stroud’s as what looked like a Tech 9. Alexander heard someone say “It’s a jack” which he understood to mean a robbery.
The incident quickly escalated and the witnesses’ accounts varied significantly. Alexander started struggling with Stroud over the gun. The two struggled out the door into the hallway, and then stumbled down the stairs. At the bottom of the stairs, Stroud got away and directed Alexander to go upstairs. While Alexander walked upstairs, Vaden trained his weapon on him from above. Alexander was forced to lie on the ground with Smith and Rutledge. Someone kicked him and shoved a barrel of a gun in the back of his head. The perpetrators told the three to take their wallets out. Rutledge never recovered his wallet.
As Alexander struggled with Stroud, Lucas went midway down the stairs and told Stroud she wanted to leave. He told her to go back upstairs. Lucas, frightened, sat in a corner of the hallway next to the doors to the studio and office. The men went back into the studio. She heard voices yelling commands inside the studio and bumping around. When Alexander was returned to the studio, one of the perpetrators said they should kill him first. Rutledge was asked whether there was a telephone in the office, and when he did not respond, a gun was put against the back of his head.
When the robbery began, Everett and Eugene Riley were in the Fat Rat office across the hall from the studio. They heard the commotion, looked out and saw a man with a gun, and went back into the office. Everett called downstairs to a pager office, told the person there, Wallace Conners, Jr., an armed robbery was going on, and asked him to call 911. As the perpetrators broke down the door of the office, Everett and Riley jumped out the window onto the sidewalk and ran. In response to Everett’s call, Conners called 911 and warned the other building tenants about the robbery. Maurice Hobbs, who did maintenance work at the building, was in the pager office when Conners received Everett’s call. Hobbs armed himself with at least one gun from a desk drawer, and went to the doorway which led to a hallway by the stairs to the Fat Rat studio.
When Stroud and Swain entered the office, Lucas ran down the hallway and down the stairs. She saw a man leaning against the wall in the first floor hallway to the rear door. He had his arms up, hands together, over his right shoulder. In response to his question, Lucas said she did not know what was going on. At that point, Stroud was halfway down the staircase with a gun in his hand. Swain was at the top of the stairs, starting to move downward with a gun in his hands. Lucas turned and ran out the front door. As she ran, she heard gunshots almost simultaneously. She heard a lot of shots.
Hobbs was shot in the neck and staggered into the pager office and collapsed. He later died from his wound. Conners took a gun from Hobbs’ hand and put it on top of a desk in the pager office.
Once outside the building, Lucas saw Everett in his car in the parking lot holding a gun. She saw Riley run up to Everett’s car. She did not see him with a weapon. Lucas worked her way back to her car and went to pick up her son at a babysitter’s. Next she went to the home of a woman whom she knew to be a friend of Swain and Stroud to see if they were there. Swain and Stroud were inside. Lucas took Swain and Stroud to her home where they spent the night. Defendants talked about their need to leave town. Stroud left his gun in the oven at Lucas’s home and told her to get rid of it. She put it under the apartment building in a concealed grassy area.
The gun that fired the fatal wound was never identified. Based on evidence that the wound was a “through and through” wound, the medical examiner testified that the wound was caused by a medium or large caliber weapon because small caliber ammunition is often stopped by the skin at the back of such a wound. In his opinion, the wound could have been caused by a .32- or .45-caliber or nine-millimeter weapon. The wound was not consistent with a high velocity weapon such as an AK-47.
Five months after the shooting, Vaden shot and killed himself during a traffic stop in San Francisco. His weapon, an M-11 semi-automatic pistol, was sent for ballistics testing in Los Angeles. Criminalist Diana Paul also examined a .40-caliber semi-automatic handgun, and two .38-caliber revolvers recovered from the pager shop. With the exception of three bullet fragments that could not be examined, Paul concluded that none of the bullets or cartridge casings recovered from the scene had been fired from the weapons from the pager shop. Twenty-two of the bullet fragments or cartridge casings recovered at the scene came from Vaden’s M-11 semi-automatic pistol. Eight cartridge casings, two bullet fragments, a part of a bullet jacket and a bullet found at the scene were determined to have come from a .45-caliber semi-automatic firearm which was not recovered.
Several days after the shooting, one of Everett’s friends brought him a videotape that was shot during the filming of a music video by Ice Cube. Everett and Rutledge worked on the shoot, and Swain, Stroud, and Vaden all had been extras. Everett, Rutledge, and Smith watched the video together and saw Swain, Stroud and Vaden. Everett gave the tape to the police, telling them there were people in the video who were involved in the shooting. Swain was arrested in Colorado in 1997 and Stroud was arrested in Minnesota in 1998.
Stroud and Swain were charged with murder, robbery, attempted robbery, and assault with a deadly weapon. The jury in the first trial acquitted Swain of attempted robbery and hung on the remaining charges. On retrial, Swain was convicted of second degree murder, and three counts of simple assault. The jury found Swain to have been personally armed with a firearm within the meaning of Penal Code section 12022.5, subdivision (a). The trial court found true one prior conviction allegation under section 667.5, subdivision (b) and found true all allegations under section 667, subdivision (a) and the Three Strikes law. Swain was sentenced to an aggregate sentence of 46 years to life.
Statutory references are to the Penal Code unless otherwise indicated.
Stroud was found guilty of second degree murder and the jury did not find the special circumstance allegation to be true. He was also found guilty of second degree robbery, assault by means of force likely to produce great bodily injury, and simple assault. The jury found he was personally armed with a semi-automatic firearm. (§ 12022.5, subd. (a).) The trial court found true a prior conviction for purposes of section 667, subdivision (a) and the Three Strikes law. Stroud was sentenced to 30 years to life, plus 40 years 10 months. Each appellant filed a timely appeal and joined in the relevant contentions raised by the other.
DISCUSSION
I
In his opening brief, Stroud challenged several jury instructions. After the appellants’ opening briefs were filed, respondent moved to augment the record on the ground that the copy of the instructions in the clerk’s transcript was a draft not seen by the jury, rather than the final version of the instructions given the jury. The motion was supported by a declaration by Ana M. Lopez, the deputy district attorney who prosecuted the trials. Both appellants opposed the motion. We issued an order pursuant to California Rules of Court, rule 12(c)(2) directing the trial court to hold a hearing to settle the dispute over the version of the instructions given the jury.
Pursuant to our order, the trial court held two days of hearings on the matter. Deputy District Attorney Lopez, and trial defense counsel Paul Potter (Swain) and Andrew M. Stein and Charles Frisco (Stroud) testified. The trial court ruled that the version of the instructions in the clerk’s transcripts was a draft not submitted to the jury, and that the group of instructions attached to respondent’s motion to augment was an accurate copy of the version given to the jury. Based on this finding, we treat the instructions attached to the motion to augment as the accurate version of the final jury instructions. After the trial court settled the dispute, Stroud abandoned claims that the written instructions were materially inconsistent with the oral instructions. We treat only his remaining challenge to CALJIC No. 8.12.
At the outset of our discussion of CALJIC No. 8.12, we point out that several instructions were separately tailored for each appellant, so for example, the jury received two versions of CALJIC No. 8.12, one for each appellant. This was because Swain was acquitted of robbery charges in the first trial so that crime could not be used as a predicate for the homicide charges against him. The jury in the first trial was unable to reach a verdict on the robbery and attempted robbery charges as to Stroud, so homicide theories based on the commission of those crimes were argued against him in the second trial.
The written version of CALJIC No. 8.12 which applied to Stroud stated: “As to defendant STROUD only: [¶] A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in response to an intentional provocative act by a perpetrator of the crime other than the deceased, is considered in law to be an unlawful killing by the perpetrator[s] of the crime. [¶] An intentional provocative act is defined as follows: [¶] 1. The act was intentional. [¶] 2. The natural consequences of the act were dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. The crime of Assault By Means of Force . . . Likely to Inflict Great Bodily Injury and/or Robbery and/or Attempted Robbery; [¶] 2. During the commission of the crime, [the defendant] also committed an intentional provocative act; [¶] 3. [Another person not a perpetrator of the crime of Assault By Means of Force Likely to Inflict Great Bodily Injury and/or Robbery and/or Attempted Robbery in response to the provocative act, killed [another person]; [¶] 4. The [defendant’s] commission of the intentional provocative act was a cause of the death of Keith Maurice Hobbs. [¶] Murder, as defined in this instruction, which occurs during the commission or attempt to commit the crime [of] Robbery, when there was in the mind of the perpetrator of that crime, the specific intent to commit the crime of Robbery, is murder of the first degree. [¶] Murder, as defined by this instruction, which is not of the first degree is murder of the second degree.”
Stroud’s argument is that as given, the written and oral versions of CALJIC No. 8.12 were incomplete because they omitted the phrase “was/were committed.” If the pattern instruction had been given without modification, it would have instructed the jury that it was required to find that the specified underlying crime “was committed: “In order to prove this crime, each of the following elements must be proved: [¶] 1. The crime of ____ [or] [attempted ___] was committed.” (Italics added.)
The record supports Stroud’s contention that the pertinent language was omitted from both the oral and written versions of CALJIC No. 8.12 given the jury as to him. Respondent argues the omission is harmless because the jury would have understood that the commission of one of the specified underlying crimes was a necessary element for murder based on the provocative act theory.
In Stroud’s case, the specified crimes were assault by means of force likely to inflict great bodily injury, robbery, or attempted robbery.
Taken as a whole, the language of CALJIC No. 8.12 as modified for Stroud made it plain that the jury was required to find that assault by means of force likely to inflict great bodily injury, or robbery, or attempted robbery was committed as a predicate for a finding that Stroud was guilty of second degree murder based on the provocative act theory. A portion of the instruction read: “In order to prove this crime, each of the following elements must be proved: [¶] 1. The crime of Assault By Means of Force . . . Likely to Inflict Great Bodily Injury and/or Robbery and/or Attempted Robbery; . . .” We conclude that the omission of the words “was/were committed” from the portion of the instruction we have quoted was not error because the instruction informed the jury that this element must be proven.
II
Stroud challenges the sufficiency of the evidence to support his conviction for second degree murder. To evaluate a claim of insufficiency of the evidence, “we must ‘examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.’ (People v. Lewis (2001) 25 Cal.4th 610, 642 [106 Cal.Rptr.2d 629, 22 P.3d 392]; see People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. San Nicolas (2004) 34 Cal.4th 614, 657-658.)
Stroud argues the prosecutor failed to present evidence (or argument) that a particular person was the actual shooter, and therefore, causation cannot be established. He contends there was no evidence that a nonperpetrator fired the fatal bullet. He reasons: “In the absence of such evidence, no trier of fact can find that, and no reviewing court can assess whether, the defendant should have foreseen the possibility of some harm of the kind which might result from his act. In such a circumstance, it is not possible to determine whether the fatal shot was the result of an independent, possibly exploitative, intervening cause absolving appellant of criminal liability or a foreseeable dependent intervening cause. Accordingly, the evidence introduced below is insufficient as a matter of law to support appellant’s conviction of provocative act murder.”
In People v. Cervantes (2001) 26 Cal.4th 860, the Supreme Court explained that the provocative act murder doctrine was originally conceived as a form of implied malice murder, derived as an offshoot of the felony-murder rule. (Id. at p. 867, citing People v. Washington (1965) 62 Cal.2d 777, 782.) It described the doctrine as “a descriptive category or shorthand formula denoting certain circumstances under which a defendant comes within the statutory definition of murder when his or her unlawful conduct provokes another into committing the fatal act.” (Id. at p. 867, fn. 10.)
Respondent does not contend that the provocative act doctrine applied here, but instead argues that the judgment may rest on another legally sufficient theory unaffected by error. In fact, as we shall explain, the evidence does not support murder on a provocative act theory. But the error in instructing on that theory was harmless in light of the valid alternative second degree murder theories. (People v. Johnson (1993) 6 Cal.4th 1, 38; disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879-880.)
Stroud also challenges the sufficiency of the evidence to support his second degree murder conviction based on express or implied malice. He contends that, absent evidence that the fatal shot was fired by one of the three perpetrators, and because the evidence supports the conclusion that it was fired by a nonperpetrator, the evidence does not support the conclusion that his conduct was a substantial concurrent (and hence proximate) cause of Hobbs’ death.
There was substantial evidence that the shot that killed Hobbs was fired by either Stroud or Swain, as the prosecutor argued in closing. Lucas placed each of them in the stairwell facing Hobbs, holding weapons. She fled and immediately heard a volley of shots. The shot that killed Hobbs was “through and through.” It followed a downward trajectory, entering the throat and continuing downward toward the back and exiting in the right shoulder area, more than five inches below the entry wound. Only Swain and Stroud were in a position to fire a shot from that angle. The wound was inconsistent with a wound fired by the type of high-powered weapon carried by Vaden. Rutledge’s preliminary hearing testimony was admitted, in which he said he heard Stroud say, “Hey, we got a live one here” as the shooting started.
Contrary to Stroud’s speculation in his reply brief, the evidence did not support a theory that the fatal bullet was fired by someone coming from the pager shop or the hallway at ground level. In that brief, Stroud bases this speculation on evidence that Conners told other tenants about the robbery, the presence of firearms in Conners’s shop, and the fact that Lucas saw Everett with a gun in the parking lot following the shooting.
First, the trajectory of the wound was consistent only with a shot fired from the stairwell or above. Second, the ballistics expert eliminated the three weapons found in the pager shop as the source of bullets fired at the scene. The ballistics expert testified that of the three guns found in the pager shop, two were fully loaded with no expended cartridge cases, thus eliminating them as the source of the shot that killed Hobbs. The third weapon (the .40-caliber semi-automatic) was the weapon wielded by Hobbs. Except for three partial bullets and bullet jackets too damaged to be tested, the ballistics examination of the bullets and cartridges recovered from the scene showed that none was fired from these weapons.
There was no evidence placing Conners in the stairwell or the hallway at the time of the shooting. Lucas did not testify that she saw another person there, and Conners testified he was inside the pager office calling 911. Everett and Ridley had jumped out the window of the upstairs office and were running away when they heard the shots fired. The three robbery victims, Rutledge, Smith, and Alexander, were upstairs on the floor of the studio when the shots were fired.
Based on this record, there was no evidence that the fatal shot was fired by a third party in response to the chain of events set in motion by the robbery. The provocative act doctrine, which applies where a third party fires the fatal shot, thus was unsupported by the evidence. As we next explain, this insufficiency was harmless because the second degree murder convictions were supported by substantial evidence.
Stroud argues that because the prosecutor failed to establish who fired the fatal shot, causation cannot be established to support murder based on express or implied malice. In People v. Sanchez (2001) 26 Cal.4th 834, the Supreme Court addressed proximate causation in a murder case where a single bullet was fired by an unidentified perpetrator. The case arose in the context of a shootout between two rival gang members. Evidence could not establish which of the two fired the fatal shot. The Supreme Court held that inability to prove actual or direct causation did not undermine evidence of proximate cause. (Id. at p. 845.) It reasoned: “[I]t has long been recognized that there may be multiple proximate causes of a homicide, even where there is only one known actual or direct cause of death.” (Id. at p. 846.) Where there is concurrent causation, each defendant is the proximate cause of death if their conduct was also a substantial factor in contributing to the result. “‘A cause is concurrent if it was operative at the time of the death and acted with another cause to produce death.’” (Id. at p. 847, quoting People v. Mai (1994) 22 Cal.App.4th 117, 123, fn. 5, overruled on another ground in People v. Nguyen (2000) 24 Cal.4th 756, 761-763.)
The Sanchez court concluded: “Although in this case it could not be determined who was the direct or actual shooter of the single fatal round, the evidence, with all reasonable inferences drawn in favor of the guilty verdicts, supports a finding that defendant’s commission of life-threatening deadly acts in connection with his attempt on [the rival gang member’s] life was a substantial concurrent, and hence proximate, cause of [the innocent bystander’s] death. All that remained to be proved was defendant’s culpable mens rea (premeditation and malice) in order to support his conviction of premeditated first degree murder.” (People v. Sanchez, supra, 26 Cal.4th at pp. 848-849.)
Stroud attempts to distinguish Sanchez on the ground that there was no evidence in that case that anyone other than the defendant and his gang rival fired weapons. But as we have discussed, the evidence here eliminated all but appellants as the source of the fatal shot. The evidence we have recounted constitutes substantial evidence that appellants were concurrent, and hence, proximate causes of Hobbs’s death. The evidence established that they were in the stairwell, armed, facing Hobbs, when a hail of gunfire broke out. There was no evidence that someone else fired the fatal shot. Appellants do not challenge the sufficiency of the evidence of express or implied malice to support the second degree murder convictions. Based on our conclusion that there was substantial evidence of causation, we therefore find sufficient evidence to support the murder convictions. As in Sanchez, the record does not affirmatively demonstrate that the jury rested its verdicts on an unsupported theory of liability. (Sanchez, supra, 26 Cal.4th at p. 852.)
III
Stroud argues the trial court applied an incorrect standard of review in ruling upon his motion for acquittal under section 1118.1, resulting in a violation of his right to due process. After the People rested, Stroud’s counsel moved for acquittal on all counts. The court said: “I find there is sufficient evidence on each of the counts as to Mr. Stroud; that is count 1, count 4, count 5 and count 6, as well as count 7, to go to the jury, to allow the jury to make those fact determinations which will result in either a guilty or not guilty verdict.” He contends that the correct test under section 1181.1 is whether the prosecution has produced substantial evidence sufficient to sustain the conviction on appeal.
Section 1118.1 provides in pertinent part: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
“The test applied by the trial court in ruling on a motion for acquittal is the same test applied by the appellate court in reviewing a conviction for sufficiency of the evidence, namely, to determine whether from the evidence then in the record, including reasonable inferences to be drawn therefrom, there is substantial evidence of the existence of every element of the offense charged. (People v. Cuevas (1995) 12 Cal.4th 252, 261 [48 Cal.Rptr.2d 135, 906 P.2d 1290]; People v. Trevino (1985) 39 Cal.3d 667, 695 [217 Cal.Rptr. 652, 704 P.2d 719], disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221 [255 Cal.Rptr. 569, 767 P.2d 1047].)” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 90.)
Substantial evidence is defined as “‘evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.’ (People v. Lewis[, supra,] 25 Cal.4th 610, 642 [106 Cal.Rptr.2d 629, 22 P.3d 392]; see People v. Johnson[, supra,] 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. San Nicolas, supra, 34 Cal.4th at p. 658.) It is apparent that the trial court was focused on this definition of substantial evidence when it referred to evidence sufficient to allow the jury to make the necessary fact determinations. We conclude that given this definition of substantial evidence, the standard as articulated and applied by the trial court was appropriate.
Stroud does not challenge the denial of his motion as to any but the murder count. As to that, as we have discussed, substantial evidence presented in the prosecution’s case supports the murder convictions, resolving the question of the denial of the acquittal motion against Stroud.
IV
Swain, joined by Stroud, raises several arguments challenging the admission of a videotaped interview of Lucas conducted by the prosecutor and a detective in 2001, before the first trial. Appellants contend that its admission violated their rights to due process, confrontation and fair trial. The issue is significant because, they assert, Lucas was the only witness to identify defendants as the perpetrators of the armed robbery. They argue: (1) the video statement was improperly admitted at a time when Lucas was not testifying and was not subject to “simultaneous” cross-examination; (2) defense cross-examination of Lucas did not open the door to this evidence; (3) the statement was overinclusive and presented in a way that gave it too much weight; (4) the video allowed impermissible vouching by the prosecutor who was seen to urge Lucas to tell the truth; (5) if defense counsel opened the door to this evidence, appellants were denied effective assistance of counsel.
We first highlight significant inconsistencies in Lucas’ statements, followed by the procedural history regarding the admission of the video.
A. Lucas Statements
At trial, Lucas admitted on cross-examination that she withheld information from the police when initially interviewed in May 1995. During that interview she did not reveal that she had met Swain and Stroud after the incident; that she harbored them at her home that night; or that she had hidden a weapon for them. Lucas was interviewed by Deputy District Attorney Lopez and Detective Baeza in May 2001, shortly before the first trial in this case. In that interview, she admitted that she met Swain and Stroud after the shooting, and brought them to her home for the night. Lucas also gave a different version of the disposal of the gun Stroud had with him. In this account, Lucas said that it was Stroud who disposed of the gun somewhere inside her apartment complex, but not in her apartment.
By the time of the first trial, Lucas had been granted use immunity from prosecution. She testified that during the May 2001 interview she told the authorities for the first time that she had met appellants at a friend’s house after the shooting and took them with her to her apartment to spend the night. At this trial, she testified that she hid the gun at Stroud’s request.
B. Proceedings re Admissibility
The prosecutor sought permission to play excerpts from the May 2001 Lucas interview as prior consistent statements in an effort to rehabilitate her. Counsel for Swain objected on the ground that the recording would be vouching for the credibility of the witness and that the excerpts were “far in excess of prior consistent statements.” Alternatively, if these objections were overruled, counsel for Swain asked that six additional portions of the recording omitted by the prosecution should also be played. He also asked the court to play the video version of the statement rather than using only the audiotape of the session. Counsel for Stroud agreed with this position, and said he also had additional portions of the statement that he wished to be played. Defense counsel renewed these objections to playing any portion of the recording when the issue was revisited later. Alternatively, if the court ruled that the statement was admissible, defense counsel argued that additional portions should be played under Evidence Code section 356 because the recording included both prior consistent and prior inconsistent statements.
The following morning, the trial court heard argument on the issue of the Lucas recorded statement. Counsel for Stroud said that he had viewed the video version the previous evening and was now changing his position to request that the entire video be admitted with an instruction that some of it was admitted as prior consistent statements, some as prior inconsistent statements, and some for Lucas’s state of mind. He explained that he wanted most of the recording that the prosecution sought to delete, because it would provide the jury with a more cohesive presentation if the entire video was played.
Counsel for Swain agreed that if the statement was ruled admissible, the video rather than the audio version should be played for the jury. He found merit in the proposal by Stroud’s counsel to play the entire tape because he lacked the equipment and skill to edit the tape. Defense counsel agreed that the portion of the tape in the first four pages of transcript could be deleted, as well as a portion at the end. In light of the position of counsel, the trial court concluded that “the jury and the parties will be better served by allowing the jury to see the entirety of [Lucas’s] testimony” except for the beginning and the very end.
After several other witnesses testified, counsel for Swain renewed his objection to the admission of Lucas’s videotaped statement. He argued that “the cumulative effect of this video is bolstering, it’s cumulative, it contains a great deal of impermissible material. The identification of the prior consistent and inconsistent statements is something that should have been done when the witness was present to allow further explanation and exploration. I think it’s going to mislead the jury. I think it’s a Trojan horse for the admission of evidence that would otherwise be inadmissible. And I think it’s impermissible vouching for one particular witness. . . .” Counsel for Stroud also argued that the video would unduly bolster the credibility of the prosecutor, who interviewed Lucas on the tape.
The court inquired as to whether counsel for Swain had changed his position, indicating that it understood that all counsel had ultimately agreed the entire video should be played for the jury. Counsel for Swain responded that his position had been consistent in that he objected to any portion of the video being shown, and if used, Lucas should be present. In response to further inquiry from the court, he said that if any of the video was ruled admissible over his objection, then the entire tape should be played under Evidence Code section 356. Swain’s attorney also cited Evidence Code section 352.
On the Evidence Code section 352 question, the trial court said that it had balanced the prejudice against the probative value and had ruled in favor of playing the video. It ruled that the fact that Lucas would not be present while the video was played was “of small moment” because she remained on call and could be examined about the video. After the video was played to the jury, counsel for Swain said that the bases of his objections to the video were the 6th Amendment, the 14th Amendment, and due process. The trial court stated that it did not recall the constitutional issues being raised in the earlier colloquies on the issue, which had focused on the admissibility of prior consistent and inconsistent statements and Evidence Code section 352.
C. Deprivation of Simultaneous Cross-Examination
As we have seen, the trial court made it clear that Lucas was subject to recall after the video interview was played for the jury, so that defense counsel could cross-examine her further. Appellants argue that Lucas should have been available for cross-examination about the video statement immediately after it was played. The failure to make her immediately available, they contend, violated their right to confrontation guaranteed by the United States Constitution.
In support of this argument, appellants cite People v. Cannady (1972) 8 Cal.3d 379, 387, which cited California v. Green (1970) 399 U.S. 149, 158. In Green, the Supreme Court held that Evidence Code section 1235, which allows the admission of a prior inconsistent statement by a witness, did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. Green involved a drug prosecution in which a witness testified at trial that he could not recall how he obtained marijuana that he later sold. He was impeached with his prior testimony at the preliminary hearing in which he identified Green as his supplier under Evidence Code section 1235. The witness had also identified Green as his supplier in an out-of-court statement to the police. The court reversed an opinion by the California Supreme Court that held the admission of the inconsistent statements was a violation of the right to confrontation. The California court had reasoned that belated cross-examination before the trial court was not an adequate substitute for the right to cross-examination contemporaneous with the original testimony before a different tribunal. (People v. Green (1969) 70 Cal.2d 654, 659.)
The United States Supreme Court in Green concluded that the primary object of the confrontation clause was to prevent the use of depositions or affidavits against a defendant in lieu of personal examination and cross-examination of a witness. (California v. Green, supra, 399 U.S. at pp. 157-158.) It reasoned: “Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. (Id. at p. 158.) The Green court recognized that an out-of-court statement may not have been made with the protections of cross-examination and an opportunity for the trier of fact to judge the demeanor of the witness as the statement was made. But, it concluded, “the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial.” (Id. at p. 159.) The United States Supreme Court acknowledged that the task of defense counsel in cross-examination changes once faced with a prior inconsistent statement, but concluded that this difference “may actually enhance the defendant’s ability to attack the prior statement” because the witness should give explanations for the inaccuracy of the prior statement. The court concluded: “Under such circumstances, the defendant is not likely to be hampered in effectively attacking the prior statement, solely because his attack comes later in time.” (Id. at p. 160, italics added.)
The Green court identified the crucial question as whether “subsequent cross-examination at the defendant’s trial will still afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. On that issue, neither evidence nor reason convinces us that contemporaneous cross-examination before the ultimate trier of fact is so much more effective than subsequent examination that it must be made the touchstone of the Confrontation Clause.” (California v. Green, supra, 399 U.S. at p. 161.)
In People v. Cannady, supra, 8 Cal.3d 379, cited by appellants, the issue was the admission of prior consistent statements under Evidence Code section 1236. The Cannady court rejected a contention that the admission of the prior consistent statements violated appellants’ Sixth Amendment right of confrontation, because the two witnesses testified at the trial and were subject to full and effective cross-examination, citing California v. Green, supra, 399 U.S. 149. (Cannady, supra, at p. 387.)
In a supplemental letter brief, Swain argues that the Supreme Court’s opinion in Crawford v. Washington (2005) 541 U.S. 36, abrogated the hearsay exception for prior consistent statements. In footnote 9 in that case, the court made it clear that its holding does not apply under the circumstances presented here: “[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 . . . . It is therefore irrelevant that the reliability of some out-of-court statements ‘“cannot be replicated, even if the declarant testifies to the same matters in court.”’ Post, at 1377 (quoting United States v. Inadi, 475 U.S. 387, 395, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (541 U.S. at p. 59, fn. 9.)
Appellants argue that because Lucas was no longer testifying at trial, the admission of her out-of-court statement violates the Confrontation Clause because she was not subject to immediate cross-examination. We disagree. First, we find nothing in the language of either Crawford, Green or Cannady that requires the out-of-court statement to be followed immediately by cross-examination without any delay. Second, as we have seen, Lucas was available to be recalled for additional cross-examination after the jury saw the videotape of her May 2001 statement. We find no violation of the right to confrontation.
D. Was the Door Opened?
Appellants argue the cross-examination of Lucas did not open the door to the playing of the video statement. Alternatively, they contend that if defense counsel did open the door to this evidence, they were deprived of their constitutional right to effective counsel. We reject both arguments.
During cross-examination by counsel for Swain, Lucas was asked whether she told the police in May 1995 that she had hidden the gun. She admitted that she had not. Lucas then testified that she was interviewed by a detective and the prosecutor before her testimony at the first trial and again did not say she had hidden the gun. Counsel for Swain then elicited Lucas’s testimony that she had been given use immunity immediately before she testified at the first trial. Defense counsel then asked: “In any event, after you received the immunity, the story again becomes modified; is that correct?” Lucas answered, “Yes.” Lucas also acknowledged that in the first trial she testified that she saw Stroud put the gun in the oven in her kitchen, but that on direct examination in the second trial she testified that she was not aware of the gun until she found it in the oven the next day.
Stroud’s counsel also cross-examined Lucas and elicited her admission that during the May 2001 interview she did not tell the detective or the prosecutor she had taken a gun used in the shooting and hidden or destroyed it. He also asked Lucas whether the May 2001 interview was the first time she told authorities that she had gone to meet appellants at their friend’s home after the shooting. Defense counsel then asked a series of questions establishing that the prosecutor and detective did not ask Lucas details about this woman during the May 2001 interview.
On appeal, appellants argue that these inconsistencies regarding Lucas’s role in hiding the gun did not warrant playing the entire tape to the jury. We disagree. Defense counsel raised a strong inference that Lucas fabricated testimony, including Stroud’s request that she hide the gun used in the shooting, in return for the grant of use immunity. This was a reasonable tactical choice by defense counsel because the grant of immunity was significant to the jury’s evaluation of Lucas’s credibility. “‘“‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’”’ (People v. Jones (2003) 29 Cal.4th 1229, 1254 [131 Cal.Rptr.2d 468, 64 P.3d 762].)” (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 87.) We find no ineffective assistance of counsel.
Once Lucas’s credibility had been impeached by evidence that she changed her story after she was granted immunity, the court properly admitted her prior consistent statements as relevant to her credibility under Evidence Code sections 791 and 1236. (See People v. Williams (2002) 102 Cal.App.4th 995, 1010-1012.)
Evidence Code section 791 states: “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
Evidence Code section 1236 states that “[e]vidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.”
Much of the video statement was consistent with Lucas’s trial testimony. As we have discussed, once the trial court ruled that portions of the video were admissible, defense counsel chose to allow the entire statement to be played because they believed portions were favorable to the defense. The video confirmed that decision was a reasonable tactical choice because the video showed that Lucas gave yet another version of hiding the gun, this time that Stroud had hidden it himself.
We find the trial court did not err in ruling that portions of the video were admissible as either consistent or inconsistent prior statements, and that the choice to play the entire video (with minor edits) was made by defense counsel as a reasonable tactical choice.
E. Overinclusiveness
Appellants argue “[t]he length and narrative form of the ‘prior statements’ admitted, . . . allowed the jury to consider the statements as substantive evidence that the witness was telling the truth.” Citing a Harvard Law Review Comment (78 Harv.L.Rev. 887, 888 (1965)), appellants appear to argue that the lengthy recitation of the prior testimony led the jury to accord the statement substantive weight. We observe that prior consistent statements are admissible to support the credibility of a witness and for the truth of the matter stated. (People v. Crew (2003) 31 Cal.4th 822, 849.)
Moreover, as we have recounted, once the trial court ruled that portions of the Lucas video statement were admissible, both defense counsel took the position that the entire statement should be played for the jury because some of it was helpful to the defense. Under these circumstances, any error in playing the entire video was invited and is not the basis for reversal. (See People v. Harrison (2005) 35 Cal.4th 208, 236-237.)
F. Vouching
Appellants argue that the prosecutor unduly bolstered the credibility of both the prosecutor and Lucas by playing the video statement. They cite portions of the redirect examination of Lucas which took place before the video was played to the jury, in which the prosecutor asked Lucas whether the prosecutor had told Lucas to tell the truth, and to tell the truth to the best of her recollection. Lucas answered each question in the affirmative. The prosecutor followed these questions by asking Lucas whether she gave her best recollection of events in the May 2001 interview. Again, Lucas answered, “Yes.”
At the beginning of the taped interview, the prosecutor said: “What I ask you is the same thing I ask every single witness that I interview, is just tell the truth the best that you can remember it, and that’s all anybody can ever ask of you.” Appellants also cite five and one-half pages at the close of the video statement in which the prosecutor gave Lucas instructions regarding her trial testimony. The prosecutor again told Lucas to tell the truth to the best of her recollection; to be true to her best recollection; not to be afraid to correct the defense lawyer if he gets something wrong; to be extremely polite to defense attorneys (“sometimes, they get a bum rap”); not to let anyone, including the prosecutor, put anything in her mouth; to listen; not to be afraid to say she had withheld information; and to do her best.
Appellants argue that these statements raise the implication that Lucas followed these instructions and testified truthfully. They also assert the implication tended to make the prosecutor her own witness, offering unsworn testimony not subject to cross-examination.
“‘[A] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [the prosecutor’s] comments cannot be characterized as improper vouching.’” (People v. Stewart (2004) 33 Cal.4th 425, 499, quoting People v. Frye (1998) 18 Cal.4th 894, 971, italics omitted.)
Appellants’ claim here is akin to an argument rejected in People v. Williams (1997) 16 Cal.4th 153. The defendant contended the prosecutor improperly vouched for a prosecution witness who testified about defendant’s involvement in the charged crime. He claimed that improper vouching occurred when the prosecutor stated that the witness had “cut a deal” with the prosecution, agreeing to testify “truthfully and honestly” in return for being allowed to plead guilty to robbery on certain charges pending against him. The test applied in Williams was that “‘[i]mpermissible “vouching” may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’ (People v. Fierro [(1991)] 1 Cal.4th [173,] 211.)” The Williams court found no misconduct: “‘Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper “vouching,” which usually involves an attempt to bolster a witness by reference to facts outside the record.’ (People v. Medina [(1995)] 11 Cal.4th [694,] 757.)” (Id. at p. 257.)
Here, as in Williams, the prosecutor did not give any personal assurance that Lucas’s video statement was truthful and did not refer to any other information as a basis for believing in Lucas’s credibility. As respondent argues, the instructions to tell the truth, while extensive and repetitive, were standard witness admonitions.
People v. Bolton (1979) 23 Cal.3d 208 cited by appellants is distinguishable. In that case, the prosecutor twice hinted in closing argument that he could have shown appellant had a record of prior convictions or a propensity for wrongful acts but was prevented from doing so by court rules. (Id. at p. 212.) The Supreme Court found misconduct because the prosecutor implied there was additional evidence about the defendant’s past which he knew but which was unavailable to the jury. No such misconduct occurred here.
V
Swain argues the trial court erred in denying his motion for severance. His argument is based on the verdict in the first trial acquitting him of robbery and attempted robbery, which made any homicide theory based on robbery as a predicate crime unavailable as to him. He was tried on a theory of premeditated first degree murder and second degree murder. Unlike Swain, Stroud was not acquitted of robbery in the first trial, so the prosecutor was able to advance homicide theories against him in the second trial based on his participation in the robbery of the victims at Fat Rat (felony murder, provocative act). Stroud was charged with special circumstance robbery murder. (§ 190.2, subd. (a)(17).) Swain argued that severance was required because the jury would be unable to distinguish the separate homicide theories applicable to each defendant, and that he would be convicted on a robbery-related theory as a result. In a related claim, Swain argues the jury instructions failed to inform the jury that he could not be culpable for provocative act murder based on robbery, and therefore, he was put twice in jeopardy for robbery.
The trial court denied the motion to sever, relying on People v. Sanchez, supra, 26 Cal.4th 834. In Sanchez, two defendants were tried jointly, despite the fact that Sanchez was prosecuted on the theory of premeditated first degree murder and first degree murder by means of intentionally discharging a firearm from a vehicle, and his codefendant was charged solely on a premeditation theory. Based on the Sanchez decision and others, the trial court concluded that the jury could be properly instructed on different theories in a joint trial. The court noted that in the first trial, both Swain and Stroud relied on a mistaken identification defense. It also considered that the offenses all arose from the same incident and that multiple witnesses would be called, including some from out of state.
The double jeopardy issue was renewed by Swain in his motion for dismissal under section 1181.1 or for mistrial on grounds of misjoinder, at the close of the prosecution case. He argued that limiting instructions could not cure the problem of the jury considering robbery against him in violation of the prohibition against double jeopardy. The trial court denied the motions, finding ample evidence of premeditation to allow the murder count on that theory to go to the jury. It reiterated that the jury would be instructed on the separate homicide theories applicable to each defendant. The issue was raised again in a motion for new trial and denied.
In his opening brief on appeal, Swain argues that CALJIC No. 8.12 on provocative act murder improperly allowed the jury to base that homicide theory on his participation in robbery. That argument was based on the written version of the jury instructions included in the clerk’s transcript on appeal. As we have discussed, the record was settled, and it was determined that the version of the instruction in the clerk’s transcript was not the final version given to the jurors. A review of the final instructions included in the augmented record demonstrates that two separate versions of CALJIC No. 8.12 were read to and given to the jury in written form. As to Swain, the written instruction read: “As to the defendant SWAIN only: [¶] A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in response to an intentional provocative act by a perpetrator of the crime other than the deceased, is considered in law to be an unlawful killing by the perpetrator[s] of the crime. [¶] An intentional provocative act is defined as follows: [¶] 1. The act was intentional. [¶] 2. The natural consequences of the act were dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. The crime of Assault By Means of Force . . . Likely to Inflict Great Bodily Injury; [¶] 2. During the commission of the crime, [the defendant] also committed an intentional provocative act; [¶] 3. [Another person not a perpetrator of the crime of Assault By Means of Force Likely to Inflict Great Bodily Injury in response to the provocative act, killed [another person]; [¶] 4. The [defendant’s] commission of the intentional provocative act was a cause of the death of Keith Maurice Hobbs. [¶] [If you find that the crime of murder was committed as defined in this instruction, you must find it to be murder of the second degree.” The version read to the jury by the trial court was consistent with the written instruction.
The version of CALJIC No. 8.12 tailored for Stroud clearly informed the jury that, unlike Swain, Stroud was being tried on homicide theories based on the predicate crime of robbery (or attempted robbery) as well as assault. That instruction also told the jury that Swain was prosecuted for provocative act murder on the assault theories used against Swain for second degree murder. In his reply brief, filed after the record was clarified, Swain does not offer further argument that the version of CALJIC No. 8.12 given the jury was in error.
The jury was given separate versions of CALJIC No. 8.10 on murder under section 187. The version as to Stroud included a felony-murder theory based on the commission or attempted commission of robbery. The version as to Swain omitted that theory. The jury also received a series of felony-murder instructions clearly labeled as applying to Stroud only. (CALJIC Nos. 8.21, 8.21.1, 8.27.) In addition, the jury was given instructions on the robbery special circumstance which expressly stated that they applied only if the jury found Stroud guilty of first degree murder. (CALJIC Nos. 8.80.1, 8.81.17, 8.83, 8.83.1, 8.83.2, 8.83.3.) The instructions defining the crime of robbery or attempted robbery were expressly limited to Stroud. (CALJIC Nos. 9.40, 9.40.1, 9.40.2, 9.41, 6.00, 6.01, 6.02.) Finally, the jury was given separate versions of CALJIC No. 17.10 on lesser included offenses tailored for each defendant. As to Swain, the instruction informed the jury that it could not convict him of assault by means of force likely to produce great bodily injury; and that Swain could be convicted of the lesser crime of simple assault. As to Stroud, CALJIC No. 17.10 informed the jury that the crime of attempted robbery was the lesser offense to robbery, and that simple assault was the lesser crime to assault by means of force likely to produce great bodily injury.
We already have determined that the provocative act theory was not supported by the evidence, but that there was substantial evidence to support the second degree murder verdicts based on Swain’s conduct. Swain, like Stroud, does not challenge the sufficiency of the evidence on that theory.
Because the jury instructions clearly segregated the homicide theories as to Swain, it was not inevitable that the robbery would spill over into evidence or instructions considered against Mr. Swain. “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. [Citation.]” (People v. Sanchez, supra, 26 Cal.4th at p. 852.) We find no error in the denial of the motion to sever.
VI
Addressing the Cunningham issues, we find, first, that appellants have not forfeited their arguments. (See Black II, supra, 41 Cal.4th at p. 810.) We proceed to the merits of their respective claims.
Swain was convicted of one count of second degree murder (§ 187, subd. (a)) and three counts of misdemeanor assault (§ 240) with a true finding of firearm use. (§ 12022.5.) The court imposed the upper term of 10 years for the firearm enhancement. It also found true one of two prior serious felony convictions, and imposed a second strike term on the murder count as well as consecutive six-month terms for each assault count, resulting in an aggregate sentence of 47 years and 6 months to life in state prison. The prior conviction suffered by Swain made him eligible for upper term sentencing. (Black II, supra, at p. 813.)
Stroud was convicted of second degree murder, second degree robbery, two counts of assault with a deadly weapon and assault/great bodily injury, and one count of misdemeanor assault. The jury found that he personally used a semi-automatic firearm in commission of the offense (§ 12022.5, subd. (a)). He was sentenced to an aggravated term on the robbery count (five years) and on one count of assault with a deadly weapon (four years). The second assault with a deadly weapon sentence and the misdemeanor assault counts were made consecutive. His aggregate sentence was 30 years to life, plus 40 years and 10 months. The basis of the aggravated terms was the trial court’s determination that the crimes were extremely vicious and unprovoked, and that Stroud was an extreme danger to the community. Although the trial court referred to arrests for crimes of increasing seriousness, it did not refer to a prior conviction. Thus, none of the factors discussed satisfies the recidivism exception to Cunningham and its predecessors.
Nevertheless, Stroud is eligible for upper term and consecutive sentencing. Insofar as consecutive sentencing is concerned, Cunningham does not apply. (Black II, supra, 41 Cal.4th at p. 820; Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) In Sandoval, the court dealt with upper term sentencing under the determinate sentencing law in circumstances where the recidivist exception did not apply. The court recognized the 2007 enactment of an amendment to section 1170, subdivision (b), eliminating language that required trial courts to impose the middle term unless circumstances in aggravation or mitigation justify an upper or lower term. The amendment substituted a provision that the trial court “shall select the term which, in the court’s discretion, best serves the interests of justice.” (Stats. 2007, ch. 3, § 2.) This urgency legislation was operative upon the Governor’s signature and filing of the signed bill with the Secretary of State, a process that was completed on March 30, 2007. (Black II, supra, at p. 808, fn. 2; Sandoval, supra, at p. 836, fn. 2.) By its terms, the amendment applied to future sentencing. The Sandoval court reformed this aspect of the determinate sentencing law so that the substance of the amended statute applies to pending cases, even though the crimes were committed before the effective date of the new law. (Sandoval, at p. 844.) This is similar to the approach taken by the United States Supreme Court in United States v. Booker (2005) 543 U.S. 220, 249. (Sandoval, supra, 41 Cal.4th at p. 852.) The court also concluded that application of the statute to cases in which the crime preceded the Legislature’s amendment of section 1170, subdivision (b), and the court’s reform of the former law did not violate the defendant’s due process rights or the prohibition against ex post facto laws. (Sandoval, supra, at p. 853.)
On remand, the trial court shall resentence defendant Stroud, exercising its discretion in accordance with the decision of the Supreme Court in Sandoval.
DISPOSITION
Defendant Stroud’s case is reversed in part and remanded for resentencing in accordance with the Supreme Court decision in Sandoval; the judgment of the trial court is otherwise affirmed. Defendant Swain’s case is affirmed in all respects.
We concur: WILLHITE, J., MANELLA, J.