Opinion
D073238
12-12-2018
THE PEOPLE, Plaintiff and Respondent, v. CARLOS LUIS VIDEL, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney general, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN349175) APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed in part, reversed in part, and remanded with directions. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney general, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Carlos Luis Videl of multiple felonies, including attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1); carjacking (§ 215, subd. (a); count 2); attempted robbery (§§ 211, 664; count 3); and shooting at an occupied motor vehicle (§ 246; count 4). The jury also found true a firearm enhancement as to counts 1 through 3. (§ 12022.53, subd. (c).) Prior to trial, Videl pled guilty to possession of a firearm by a felon. (§ 29800, subd. (a)(1).) The court sentenced Videl to 87 years four months in prison, including determinate sentences for the first three counts and the guilty plea, firearm enhancements pursuant to section 12022.53, subdivision (c) and enhancements for prior felonies pursuant to section 667, subdivision (a).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Videl contends the convictions should be reversed because (1) the court admitted lay opinion testimony from a detective; (2) the court admitted hearsay statements by a coconspirator; (3) the court refused to give a self-defense instruction; (4) the court denied Videl's Batson/Wheeler motions; (5) the jury did not have sufficient evidence for a true finding on the section 12022.53 firearm discharge; and (6) cumulatively, these errors resulted in a violation of Videl's due process. Videl also seeks (7) an in-camera review to verify there was no evidence of a Brady violation and remand for resentencing on the basis that (8) the court improperly sentenced Videl for the conviction for attempted robbery, (9) incorrectly imposed firearm enhancements under section 667, subdivision (a) on counts 2 and 3, and (10) should have the opportunity to exercise jurisdiction regarding the section 12022.53, subdivision (c) firearm enhancements in light of postconviction amendments to the statute. We affirm the convictions and determinate sentences and remand for resentencing related to the enhancements.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Brady v. Maryland (1963) 373 U.S. 83.
FACTUAL BACKGROUND
On June 2, 2015, Christopher Rios drove Jesse Broam-Tucker in his white Mazda sedan to a residential area to meet up with Videl so that Broam-Tucker could sell Videl a pound or a pound and a half of marijuana for around $2,000. When they arrived, Broam-Tucker showed Videl a jar of marijuana, and Videl showed Broam-Tucker a large amount of cash.
Videl pulled out a gun, pointed it at Rios, called over to a friend, and slid into the backseat of the Mazda. Videl pulled Rios into the backseat. Videl's friend also pulled out a gun, which he pointed at Rios and Broam-Tucker, and he climbed into the driver's seat. Videl and his friend told Broam-Tucker not to move or they would shoot him. Videl's friend drove the four of them to a gas station, to meet Brian Kimmel, who was supplying the marijuana. They parked next to Kimmel and his friend David Easterling, who had driven Kimmel in his truck, which was backed into the parking spot.
As Kimmel began to enter the Mazda through the passenger door behind the driver, Videl pointed his gun at Kimmel and demanded the marijuana. Kimmel backed out of the vehicle, and Videl grabbed his shirt, tearing it as Kimmel pulled himself outside the car.
Videl followed Kimmel out of the car. Kimmel ran to the passenger door of the truck, but the door was locked. He heard a passenger in the Mazda say, "Shoot that motherfucker," and he heard three or four gunshots. Broam-Tucker, who remained in the front passenger seat of the vehicle, testified that Videl fired his gun once. Then, after Videl's friend said, "Get him," or "Cap him," Videl fired more shots at Kimmel outside the vehicle. As Kimmel was trying to escape, he saw sparks from the gunfire ricochet off the concrete and holes in the side of the truck.
While Videl was shooting, Rios jumped out of his car and ran to the gas station. Kimmel leapt into the bed of the truck, Easterling drove away, and the Mazda chased after, with Videl firing a couple more shots at the truck. Broam-Tucker was still in the Mazda, so he jumped out to save his own life and avoid getting shot.
The Mazda eventually crashed into a telephone pole, deploying airbags, on which Videl's DNA was discovered. Videl and his friend fled the scene. Back at the gas station, Rios flagged down a deputy sheriff, who took statements from Rios and Broam-Tucker. Later that night, Kimmel and Easterling went to the sheriff's station voluntarily and gave statements to Detective John Hintz.
On August 18, 2015, Videl was arrested at a public transportation station when deputy sheriffs found a semiautomatic handgun and loaded magazine on his person. Videl was charged with attempted murder, carjacking, attempted robbery, shooting at an occupied vehicle, and possession of a firearm by a felon in August 2015. He was convicted on all counts.
DISCUSSION
I
ADMISSION OF DETECTIVE HINTZ'S OPINION TESTIMONY
Videl contends the admission of opinion testimony by Detective Hintz warrants reversal of his convictions because it violated due process. We disagree.
A. Additional Facts
During direct examination, the prosecutor asked Hintz several questions to which Videl's attorney objected as improper opinion testimony. These included questions about whether the four witnesses, Broam-Tucker, Rios, Easterling, and Kimmel, had varying accounts and how Hintz's investigation proceeded considering the information. When the prosecutor asked how Hintz decided what to believe, the court sustained Videl's attorney's objection. When the prosecutor asked what was significant about the witnesses' admissions that they were participating in a marijuana sale, the court permitted Hintz to answer only for the purpose of explaining how the investigation then proceeded. When Hintz responded that once Broam-Tucker admitted the incident was part of a marijuana deal, what Broam-Tucker was saying was probably "more true," Videl's attorney objected, and the court struck the part of the answer discussing the truth of Broam-Tucker's admission. Similarly, when Hintz testified that he believed what Broam-Tucker was going to share would be more accurate than his previous statements, the court again explained the testimony could be used only to explain the way the investigation was conducted and not for purposes of assessing the veracity of witnesses.
On direct examination, Hintz also testified about the consistency between the physical evidence and interview statements of witnesses. He testified the witnesses' statements were consistent with Videl being found in possession of a gun, with Broam-Tucker's injuries, with the bullet casings found at the scene, and with the damage to Easterling's truck. Videl's attorney objected, and the court overruled the objections. After a series of such questions, Videl's attorney asked for a special instruction. The court sustained the objection and said, "The evaluation of testimony is for the ladies and gentlemen of the jury. [¶] The initial investigation and the information provided the witness, a separate issue as relates to the manner in which the investigation was conducted. But the issue you raise is for the ladies and gentlemen of the jury." Later, Hintz also answered a question about why he was not surprised by the location of the bullet casings after hearing the witnesses' statements. The court admitted the response for how it related to the investigation's progress.
On cross-examination by Videl's attorney, Hintz answered a series of questions about the consistency of physical evidence with other possible theories, like whether the location of the bullet casings was consistent for a shooter standing next to the curb, whether the location of the casings found on the side of the parking lot away from where the cars were parked was consistent with a shooter standing over there, and whether the lack of casings in the car was consistent with a statement that a shot was fired from inside the vehicle. Hintz also testified that the amount of cash found on Easterling, about $1,000, was consistent with the amount of money exchanged in a marijuana sale, and that the dirt on Easterling's shoulder and his red elbow were consistent with a struggle or fight.
After Hintz finished testifying, Videl's attorney sought a mistrial on the ground that Hintz should not have been permitted to testify about whether, in his opinion, items of evidence were consistent with witness interview statements. He argued that the court's limiting instructions would be ineffective because Hintz's comments indicated the witnesses were telling the truth, testimony which violated due process. Videl's attorney also argued that the testimony did not connect the witnesses' testimony to his own investigative actions, i.e., he did not say that because the evidence was consistent with a witness's statement, he decided to take any particular next step in the investigation. The prosecutor pointed out that the testimony was admitted for the limited purpose of explaining why the investigation proceeded as it did, given the multiple and changing witness accounts.
The court denied the request for mistrial. It concluded Hintz's testimony provided some explanation for why a particular investigation ensued and an investigatory angle despite the inconsistent statements. It also noted that the defense had an opportunity to address the same subject matter. The court further distinguished permitting testimony about the information available to the detective during the investigation, which he admitted to explain the investigatory decisions, from discussion of those same witnesses' statements in court, which the court did not admit.
B. Relevant Legal Principles
"We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) We also review the denial of a motion for mistrial for an abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 444.) A mistrial should only be granted if a defendant's chances of receiving a fair trial have been irreparably damaged. (Ibid.) Additionally, "[i]t is . . . well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. [Citations.] '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.]" (People v. Richardson (2008) 43 Cal.4th 959, 1001, citing harmless error standard announced in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Lay witness testimony is inadmissible and irrelevant on the issue of credibility. (See People v. Melton (1988) 44 Cal.3d 713, 744-745.) However, it is admissible if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800; People v. Farnam (2002) 28 Cal.4th 107, 153.) In People v. Virgil (2011) 51 Cal.4th 1210, 1253-1254, our Supreme Court held a detective could testify that a composite of a suspect the detective viewed resembled the defendant. The testimony was based on the detective's perceptions, and it helped the jury understand how the detective came to suspect the defendant and how the investigation began focusing on the defendant months after the murder. (Id. at p. 1254.)
C. Discussion
In this case, the challenged portions of Hintz's testimony consisted largely of opinions or conclusions reached after interviewing witnesses more than a year after the shooting, when the witnesses finally admitted they had participated in a drug deal. Though the prosecutor did not ask the detective questions to justify a lapse in time between the incident and Videl being charged with the crimes like in Virgil, in both cases the police testimony explained why the investigations proceeded as they did. Here the testimony was properly admitted to explain why the detective was continuing to interview witnesses nearly a year after Videl was initially charged with the crimes.
The prosecutor could have better directed questions regarding the consistency between the physical evidence and witness statements to focus on the nexus between the new information and the detective's investigatory decisions at the time. However, the testimony offered insight into the detective's state of mind and so was helpful to understanding how the investigation progressed. (See Evid. Code, § 800.)
Moreover, even assuming some of the testimony was admitted in error, we find no prejudice because it is not reasonably probable Videl would have received a more favorable result had the challenged testimony by Hintz been excluded. (Watson, supra, 46 Cal.2d at p. 836; People v. Pearson (2013) 56 Cal.4th 393, 446 [expert opinion by witness not qualified as expert]; People v. Shorts (2017) 9 Cal.App.5th 350, 362 [lay opinion that another person was not the killer].) This test "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is not reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).)
On the occasions when Hintz's testimony strayed from explaining how the witnesses' information influenced the direction of the investigation, the court either struck the testimony or limited its consideration. The court repeatedly instructed the jury to consider the challenged testimony for the limited purpose of explaining Hintz's state of mind in how the investigation progressed. The court also directed the jury not to consider Hintz's testimony for purposes of weighing the veracity of the witnesses both during Hintz's testimony and as part of the jury instructions.
We presume jurors follow the trial court's limiting instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725 ["The presumption is that limiting instructions are followed by the jury."]; People v. Yeoman (2003) 31 Cal.4th 93, 138-139 [jurors presumed to make distinctions concerning purposes for which evidence may be considered].) There is nothing in the record to suggest the jurors did otherwise here. The two days jurors spent deliberating, their request to examine the gun evidence, and having the complete testimony of Rios read back suggest they were independently evaluating the evidence, as instructed.
Finally, there was relatively strong evidence to support the conviction. (See Breverman, supra, 19 Cal.4th at p. 177.) The jury heard from four witnesses who were present at the scene of the carjacking and the shooting, whose court testimony consistently described the events. Videl's DNA was found in the Mazda that Rios owned. A piece of clothing consistent with Kimmel's shirt was recovered from the Mazda. There were bullet casings at the gas station that matched the weapon Videl was arrested in possession of, and there were bullet holes in Easterling's truck. Viewed in this light, the detective's testimony was not critical in linking Videl to the crimes for which he was charged. Accordingly, any error was harmless.
II
ADMISSION OF COCONSPIRATOR STATEMENTS
Videl argues the statements by the alleged coconspirator were erroneously admitted during trial because they constituted hearsay to which no exception applies. We disagree.
A. Additional Facts
Videl's attorney filed a motion in limine to exclude statements by Videl's friend, who was in the driver's seat of Rios's Mazda. Various witnesses heard Videl's friend shout something like, "Cap that Nigga," "Shoot that motherfucker," or "Shoot him!" Videl's attorney argued the statements did not fall within the coconspirator statement exception (Evid. Code, § 1223) because there was insufficient evidence of a conspiracy and because the timing of the statement prevented it from being used as having a nonhearsay effect on the hearer. The prosecutor argued there was sufficient evidence of conspiracy from the coordinated actions of Videl and his friend. The court denied the motion to exclude the statements. At trial, Broam-Tucker testified that after Kimmel retreated from the vehicle, Videl fired his gun. Then Videl's friend said, "Get him" or "Cap him," and Videl fired more shots.
B. Forfeiture
As a threshold matter, we reject the argument that Videl forfeited this issue by failing to object to the testimony at trial because " 'a sufficiently definite and express ruling on a motion in limine may . . . serve to preserve a claim . . . .' [Citation]." (People v. Thompson (2016) 1 Cal.5th 1043, 1108 (Thompson).) Here, Videl's attorney raised a specific motion in limine and has raised the same issue on appeal. The motion is aimed at specific evidence, and the trial court ruled on the specific evidence, when it could make a determination within the appropriate context.
C. Coconspirator Statement Hearsay Exception
Hearsay is an out-of-court statement by someone other than the testifying witness that is offered to prove the matter stated. (Evid. Code, § 1200.) It is generally inadmissible (ibid.); however, a hearsay statement by a coconspirator may be admitted against a party if there is independent evidence to establish the existence of a conspiracy. (Id., § 1223; People v. Homick (2012) 55 Cal.4th 816, 871.)
To establish hearsay, the proponent of the statement must provide evidence of a conspiracy by a preponderance of the evidence, meaning "a reasonable jury could find it more likely than not that the conspiracy existed at the time the statement was made." (People v. Herrera (2000) 83 Cal.App.4th 46, 63, 61.) A conspiracy exists when at least one person has the specific intent to agree to commit an offense, and the specific intent to commit the elements of the offense, along with an overt act in furtherance of the agreement by one of the parties. (§ 184; People v. Morante (1999) 20 Cal.4th 403, 416.) " ' "[T]he agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute." ' " (People v. Jeffery (1995) 37 Cal.App.4th 209, 215.)
Once independent evidence establishes the existence of a conspiracy, three preliminary facts must be established: (1) the declarant was participating in a conspiracy when the statement was made; (2) the declaration furthered the objective of the conspiracy; and (3) the party against whom the evidence is offered was participating in the conspiracy. (Thompson, supra, 1 Cal.5th at p. 1108; People v. Gann (2011) 193 Cal.App.4th 994, 1005.) We review the admission of evidence under the coconspirator exception to hearsay for an abuse of discretion. (Thompson, at p. 1108.) An abuse of discretion occurs if a trial court exercises its discretion in an arbitrary or capricious manner, or if the evidentiary ruling is based on a misunderstanding of the law. (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 678.)
Videl contends the prosecution failed to establish the requirements of a conspiracy before the statements were made because Videl's friend was not identified and the only agreement was for Broam-Tucker to sell Videl marijuana. This ignores evidence presented at trial that indicated Videl and his friend coordinated their behavior to conduct a carjacking. Specifically, after Videl approached Rios's car, he pointed a gun at the occupants, called over his friend, then slid into the backseat and pulled Rios from the front seat into the back. When Videl's friend approached, he also pulled out a gun, which he pointed at Broam-Tucker. He climbed into the driver's seat and drove Rios's car to the gas station, where they expected to acquire the marijuana. This coordination between Videl and his friend suggests the two had a plan to rob someone for the marijuana and to take possession of the vehicle by force. Each of them acted overtly, brandishing weapons to gain access to the car and information about the location of the marijuana. Videl also acted overtly when he pulled Rios into the backseat to make room for his friend to drive, and his friend acted overtly by sliding into the front seat and driving to the gas station, where they believed the marijuana was stored. From this conduct, a jury could infer a conspiracy.
The requirements for admitting hearsay evidence under the coconspirator exception are also met. Videl's friend was participating in the conspiracy at the time he made the comments because he remained in the vehicle with Rios and Broam-Tucker. The comments furthered the conspiracy because they led Rios to flee the parked vehicle and caused Broam-Tucker to jump from the vehicle as Videl's friend drove it away, facilitating the carjacking. Finally, Videl was also participating in the conspiracy at the time, brandishing the weapon and fleeing in the stolen vehicle. Thus, the court did not abuse its discretion.
D. Effect on Hearer
The statements were separately admissible as nonhearsay as well. Evidence is nonhearsay when it is offered to show its impact on the hearer to explain the hearer acted in response to the statement. (People v. Livingston (2012) 53 Cal.4th 1145, 1162.) A statement can be offered to prove state of mind, motive, or conduct. (See People v. Mendoza (2007) 42 Cal.4th 686, 697.) We review a ruling on the admissibility of hearsay evidence for abuse of discretion. (People v. Henriquez (2017) 4 Cal.5th 1, 31.)
The prosecution used Videl's friend's statements to show their effect on Videl to explain that Videl was motivated by the statements. Whether Videl's friend really wanted Videl to "cap" Kimmel, Videl's act of shooting at least two or three shots after his friend shouted at him to do so suggests an effect on the hearer.
III
SELF-DEFENSE INSTRUCTION
Videl contends the trial court erred by refusing his request to instruct the jury with CALCRIM No. 3470, self-defense. We disagree.
Upon request, a defendant is entitled to a jury instruction for which there is substantial evidence. (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) We review this claim independently. (People v. Alvarez (1996) 14 Cal.4th 155, 218.)
Self-defense requires (1) an actual and reasonable belief of imminent danger of being killed or of serious bodily injury; (2) a reasonable belief that the immediate use of force is necessary to defend one's self; and (3) a showing that no more force than was reasonably necessary was used to protect against danger. (People v. Romero (1999) 69 Cal.App.4th 846, 853.) For imperfect self-defense, there must be evidence allowing the jury to reasonably conclude the defendant acted under an unreasonable but good faith belief that he needed to act in self-defense. (People v. Rogers (2006) 39 Cal.4th 826, 882-883.)
Videl argued there was sufficient evidence for a self-defense instruction based on the following: (1) a 911 call in which the caller described hearing a commotion between two parties in a vehicle, as well as three or four gunshots; (2) a black cloth recovered from Rios's vehicle after the crash, which contained Videl's DNA on it; (3) Kimmel's testimony that he told the detective on June 3, 2015, that Videl fired the weapon once from inside the vehicle; (4) a statement that Videl fired at least once into the air; (5) Broam-Tucker's testimony that Videl had a large amount of cash on him before the carjacking; and (6) Easterling having a "big wad of cash" on him when he interviewed with the detective a couple hours after the shooting. The theory was that Kimmel robbed Videl of cash while Videl was in Rios's car, and Videl fired his gun in the air, and then at Kimmel, to defend himself from the theft.
Though Videl's attorney included this evidence as part of his argument, this was based on a witness's statement. At trial Rios initially testified that Videl followed Kimmel out of the car and then started shooting. Rios did not see where the rounds were going. Later he testified that before the first shots were fired, Videl cocked the weapon and got out of the car, and he confirmed that Videl exited the vehicle right before he heard gunshots.
There was no evidence that Videl was in any physical danger because there was no evidence any of the witnesses had any weapons on them. When Videl shot at Kimmel, Kimmel was running away; Videl was not under a threat of death or serious bodily injury and had no reason to believe force was necessary. After Kimmel dove into the bed of the truck and Easterling drove away, Videl chased after him, which is inconsistent with a belief that he would be killed or seriously injured. For these same reasons, a jury could not reasonably conclude Videl acted in good faith to defend himself.
IV
BATSON/WHEELER MOTIONS
Videl contends the trial court erred by denying his Batson/Wheeler motions challenging the prosecutor's use of three of his first four peremptory challenges to strike Hispanic prospective jurors and three of his first four peremptory challenges to strike female jurors. The Attorney General counters that there was no error because the prosecutor articulated genuine race-neutral justifications for each challenge.
A. Relevant Legal Principles
It violates the state and federal constitutions to exclude jurors solely because of their gender, race, or ethnicity. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Gutierrez (2017) 2 Cal.5th 1150, 1157 (Gutierrez) [race or ethnicity]; People v. Williams (2000) 78 Cal.App.4th 1118, 1125 [gender].) A Batson/Wheeler motion uses a three-stage inquiry to prevent such exclusions. " 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes.' " (People v. Montes (2014) 58 Cal.4th 809, 847 (Montes).)
"In evaluating a trial court's finding that a party has offered a neutral basis—one not based on race, ethnicity, or similar grounds—for subjecting particular prospective jurors to peremptory challenge, we are mindful that ' "[u]nless a discriminatory intent is inherent in the prosecutor's explanation," ' the reason will be deemed neutral." (Gutierrez, supra, 2 Cal.5th at p. 1158; see People v. Winbush (2017) 2 Cal.5th 402, 433 (Winbush).) The prosecutor's " ' "justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice." [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.' " (Winbush, at p. 434.)
At the third stage, " ' "[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." ' " (Montes, supra, 58 Cal.4th at p. 847.) " 'In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.' [Citation.] This assessment may also take into account '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.' " (Winbush, supra, 2 Cal.5th at p. 434; see Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.) "This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness." (Gutierrez, at p. 1158.) The trial court "draws on its contemporaneous observations when assessing a prosecutor's credibility." (Id. at p. 1159.)
"When a reviewing court addresses the trial court's ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence." (Gutierrez, supra, 2 Cal.5th at p. 1159.) " '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. [Citation.]' " (Winbush, supra, 2 Cal.5th at p. 434; see Gutierrez, at p. 1159.)
B. Race-based Batson/Wheeler Challenge
During the first four peremptory challenges the prosecutor exercised, he excused three Hispanic jurors, J.D., E.P., and G.B., and one additional female of European descent, K.B. Defense counsel made a Batson/Wheeler motion, arguing the prosecutor was improperly excluding people of Hispanic heritage. The court found that Videl had made a prima facie showing of race discrimination and asked the prosecutor to state his reasons for dismissing J.D., E.P., and G.B. As we outline post, the prosecutor set forth his reasons, Videl's attorney challenged some of them, and the court shared its observations. The court evaluated the reasons proffered by the prosecutor for the dismissal of the four jurors, and concluded they were legitimate and not pretextual. There is substantial evidence on the record to support the trial court's findings.
The prosecutor argued that G.B. appeared to him to be Filipina, not Hispanic. The court concluded the juror's last name could suggest some Hispanic heritage. "Hispanic-surnamed jurors are a cognizable class for Wheeler/Batson purposes, even when 'no one knows at the time of challenge whether a particular individual who has a Spanish surname is Hispanic . . . .' " (People v. Davis (2009) 46 Cal.4th 539, 584.)
J.D.
At his request, J.D. spoke outside the presence of the other jurors to answer some of the voir dire questions. J.D. said he had more friends in law enforcement than he could communicate. The court asked J.D. if he could set aside what people in law enforcement had previously told him to judge this case on its own merits, and J.D. responded, "I'm going to be very, very honest. It is almost half and half. I have people that are honest and real, and some others don't, and I can—I can understand on both sides."
After revealing he had served on juries and been a witness in a trial, the court asked: "[W]as there anything about testifying as a witness that you think might affect your ability to be a fair and impartial juror, fair to both sides here?" J.D. responded: "On that case, it was like even to me, because I was telling the truth, but some others, they were competing with the other person. The stuff I saw that they at the moment, all that evening, so—" When the court asked if J.D. knew the person who was accused or was a witness to something the defendant had done, J.D. replied, "Half and Half." The court pressed: "Half and half. You knew the person?" J.D. answered, "Yeah, not too much, but just on crossing the street, seeing him almost every day."
The prosecutor expressed concern J.D. would be susceptible to group think, was difficult to understand, and would not engage well with others during jury deliberations. The prosecutor said J.D. appeared to have a communication barrier. Videl's attorney argued J.D. had good friends in law enforcement, so there was no reason, other than race, for his dismissal. The court observed that J.D. had difficulty articulating why he sought a private discussion during voir dire and what his history was with the courts. The court concluded the prosecution's concerns about J.D.'s communication skills were valid, raising questions about his thought processes and how he might work with other jurors.
Though J.D. had served on juries in the past, his responses to the questions were difficult to understand, casting doubt on his ability to engage in jury deliberations. This is a race-neutral reason for excusing him, and the court's own corroborating observations demonstrate the sincerity of this as a basis for dismissing J.D.
E.P.
E.P. discussed her brother, who was arrested two or three times and died in 2015 from alcohol-related liver disease. She appeared to cry as she spoke about her brother and said she did not think anyone in law enforcement mishandled her brother's legal matters. When posed with whether she could be impartial, E.P. said, "I can be fair, whatever. I can be fair . . . . [¶] I can serve on the jury."
The prosecutor excused E.P. because she seemed timid, passive, and unsure of herself, and she used the word "whatever," when she was asked if she could be impartial. The prosecutor was also concerned E.P. would be susceptible to going along with the group. Videl's attorney argued E.P. showed honesty and humility when she privately discussed the arrest of her brother.
The court agreed E.P. was emotional and expressed concern that the drug-related crime could evoke emotion in her that would cause her to lose focus. The court also described her as timid, and it agreed her use of the word "whatever" may have indicated she did not take the matter as seriously as she should have. The court's comments show it found the prosecutor's rationale to be genuine. Moreover, a prosecutor's perception of a prospective juror's " ' "body language or manner of answering questions" ' " may constitute a sufficient nondiscriminatory reason for excusing the person. (People v. Arias (1996) 13 Cal.4th 92, 136 (Arias).)
G.B.
G.B. revealed she had been previously arrested for fraud, but discovered the charges were dropped when she appeared in court. When asked if she could fairly assess the testimony of law enforcement, she stated she would be impartial.
The prosecutor excused G.B. because she nearly fell asleep a couple times, and he was concerned the previous arrest for fraud would cause her to view law enforcement more critically. Videl's attorney argued G.B. showed no negative body language about her arrest. The court concluded there were times G.B. was not engaged and appeared to nod off. The court also expressed concern she might hold her arrest against law enforcement.
The prosecutor's demeanor-based reason for excusing G.B., her nodding off, was confirmed by the trial court's own observations, and is a reasonable, race-neutral basis for dismissing a prospective juror. (See, e.g., Arias, supra, 13 Cal.4th at p. 136.) Moreover, the court's comments indicate it determined the prosecution could have determined G.B. might be distrustful of law enforcement based on her personal history and a family experience. Thus, we conclude substantial evidence supports the trial court's denial of the motion as to G.B.
C. Gender-based Batson/Wheeler Challenge
Videl also asks us to consider whether there was substantial evidence in the record to support the dismissal of prospective juror K.B. on the basis that the court engaged in an analysis of whether there was a gender-neutral reason to excuse her from the jury.
When a trial court determines that the defendant failed to meet the prima facie burden of showing bias and also rules on the ultimate question of purposeful discrimination—whether the prosecutor's stated reasons are genuine and nondiscriminatory—the question of whether the defendant met the prima facie burden becomes moot. (People v. Chism (2014) 58 Cal.4th 1266, 1314.) Videl argues that because a prima facie finding was made as to one class, race, a third stage review is necessary as to the second class, gender. We disagree.
In the cases cited by Videl, the prosecutor proffered reasons for excusing jurors and the court passed judgment on whether those reasons were sincere. (Chism, supra, 58 Cal.4th at pp. 1313-1314; Hernandez v. New York (1991) 500 U.S. 352, 359; Montes, supra, 58 Cal.4th at pp. 853-854 [prosecutor discussed reasons for using peremptory challenge without request by court and prima facie review not mooted].) In contrast here, the prosecutor never supplied his reasons for excusing K.B. and was not required to do so. (See People v. Carasi (2008) 44 Cal.4th 1263, 1292 [prosecutor not required to provide reasoning for excusals absent prima facie finding].) The court discussed K.B.'s dismissal in the context of comparing K.B. to the three Hispanic jurors. The court's explicit ruling that there was no prima facie finding of gender-based discrimination coupled with the absence of any stage two explanation by the prosecutor lead us to conclude that the court compared K.B.'s dismissal to the dismissals of the Hispanic jurors to demonstrate why there was no prima facie showing of gender-based bias (Montes, at pp. 853-854), and to demonstrate the prosecutor's sincerity in his reasoning.
Videl's attorney did not undertake any comparative analysis at the Batson/Wheeler hearing, and the court's comparative analysis was limited to a single juror who had also been excused. (See People v. Johnson (2003) 30 Cal.4th 1302, 1318 [engaging in comparative juror analysis for first time on appeal is unreliable and inconsistent with deference afforded to trial court], overruled on other grounds in Johnson v. California (2005) 545 U.S. 162.)
Because the trial court rejected Videl's gender-based Batson/Wheeler claim for failing to establish a prima face case, we treat this as a first stage denial and "sustain the trial court's ruling if, upon our independent review of the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose." (Montes, supra, 58 Cal.4th at p. 854.)
The trial court noted there were many other prospective female jurors, suggesting a nondiscriminatory purpose in the excuse of three women. At the time the prosecution excused E.P., G.B., and K.B., there were at least four other prospective female jurors seated. The retention of these other prospective female jurors supports the court's conclusion. Moreover, the court's observations of each of the dismissed female jurors and its conclusions that the prosecutor dismissed them for nondiscriminatory reasons, as discussed ante, further negate an inference that the female jurors were dismissed for an improper purpose and supports the court's finding that no prima facie case was made.
V
TRUE FINDING ON SECTION 12022 .53
Videl contends the jury's true finding on section 12022.53, subdivision (c) was improper because Videl did not discharge the firearm as part of a continuous transaction in furtherance of carjacking, as the weapon was fired at Kimmel and not the carjacking victims. He further contends there was no evidence that Videl intended to shoot at an occupied motor vehicle. We disagree.
A. Relevant Legal Principles
"A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements." (People v. Masbruch (1996) 13 Cal.4th 1001, 1012 (Masbruch).) An enhancement may be used if the defendant discharges the firearm to intimidate a victim and facilitate the commission of a crime. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1053, 1059 [discharge enhancement under § 12022.53, subd. (c)].) The discharge occurs in the commission of the crime if it occurs "before, during, or after the felonious act [as] part of a continuous transaction." (People v. Frausto (2009) 180 Cal.App.4th 890, 902.)
Under section 12022.53, subdivisions (a)(5) and (c), a person who personally and intentionally discharges a firearm in the commission of a carjacking shall be punished by an additional, consecutive term of 20 years imprisonment. A carjacking is the felonious taking of a motor vehicle in the possession of another from that person against his will, with the intent to permanently or temporarily deprive the person of the possession of the vehicle. (§ 215, subd. (a).) Carjacking occurs " 'when the defendant exercises dominion and control over the victim's property through force or fear.' " (People v. Hoard (2002) 103 Cal.App.4th 599, 608, quoting People v. Gray (1998) 66 Cal.App.4th 973, 985.)
Whether a defendant discharged a firearm in the commission of a carjacking is a question of fact. (See Masbruch, supra, 13 Cal.4th at p. 1007.) We evaluate a challenge to the sufficiency of the evidence by reviewing the whole record in the light most favorable to the verdict to determine whether the record demonstrates evidence that is reasonable, credible, and of a solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) " 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' " (Brooks, at p. 57.)
B. Discussion
The question here is whether the jury reasonably could have found that Videl personally and intentionally discharged a firearm "in the commission of" the carjacking of Rios. (See § 12022.53, subd. (c).) The carjacking began when Videl pointed a gun at Rios in a residential area and told Broam-Tucker not to move or he would shoot. Rios and Broam-Tucker were still in the vehicle, which Videl's friend had driven to the gas station, when Videl began firing his weapon at Kimmel; thus, the carjacking was continuing when Videl discharged the gun. Additionally, shortly after Videl began discharging the weapon, Rios was so frightened that he jumped out of the vehicle and ran to the gas station, giving up possession of the car, which Videl and his friend drove away in. Thus, the record contains substantial evidence supporting the jury's finding that the weapon was discharged in the commission of a felony.
Videl's contentions that he did not shoot at an occupied vehicle because the windows were tinted, and he only intended to shoot at Kimmel, not the truck, are unpersuasive. The offense of discharging a firearm at an occupied vehicle arguably requires knowledge of facts showing that the vehicle was occupied. (See In re Daniel R. (1993) 20 Cal.App.4th 239, 246, fn. 5, 247; cf. People v. Williams (2001) 26 Cal.4th 779, 787-788.) Shooting " 'at' " something also includes shooting at persons standing close to it. (See People v. Manzo (2012) 53 Cal.4th 880, 888; People v. Overman (2005) 126 Cal.App.4th 1344, 1356.)
The truck was occupied because Easterling remained in the driver's seat, but it is unclear if Videl knew that because the windows were tinted. However, Videl fired shots at Kimmel as Kimmel attempted to enter the truck through the passenger door, and when Kimmel dove into the truck bed and Easterling drove away. Thus, Videl fired shots at the vehicle while it was occupied.
VI
IN CAMERA REVIEW
Videl requested we review the in camera hearing to determine whether the trial court erred in failing to require disclosure of the information regarding Detective Hintz's discussions with the prosecution concerning a decision not to obtain a search warrant related to the victim witnesses. The Attorney General did not object to this review. We have independently examined the materials from the May 16, 2017 in camera hearing questioning Hintz, and we conclude there is no basis to disturb the court's ruling.
VII
CUMULATIVE ERROR
Videl contends the cumulative effect of the asserted errors rendered the trial so unfair that it violated his federal and state constitutional rights to due process. We have rejected all errors except those involving sentencing, which we address post and which did not render Videl's trial unfair. Because we hold no other errors exist, the cumulative error argument necessarily fails. (People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative effect of error when no error]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim when court found "no substantial error in any respect"].)
VIII
SECTION 654 SENTENCING ENHANCEMENTS
Videl contends the sentence for the attempted robbery conviction should have been stayed under section 654 because the attempted robbery followed the same intent and objective as the attempted murder, and they were part of a single course of conduct. The Attorney General contends the acts resulted from separate intents and objectives and the multiple party exception to section 654 applies. We agree with the Attorney General.
A. Relevant Legal Principles
Section 654, susbdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." If a defendant receives two convictions and section 654 precludes punishment for one, the sentences are imposed for both, then stayed for the shorter sentence. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
Section 654 precludes punishment when the second conviction follows the same intent and objective as the first conviction: " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.) " 'The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced.' " (People v. Coleman (1989) 48 Cal.3d 112, 162.) "We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective." (People v. Moseley (2008) 164 Cal.App.4th 1598 1603.) "We review the court's determination of . . . 'separate intents' for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence." (People v. Cleveland (2001) 87 Cal.App.4th 263, 271, citing People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
B. Discussion
The trial court did not explicitly state its rationale for adding separate enhancements for attempted murder and attempted robbery. However, there is substantial evidence in the record to support the court's implicit factual finding of separate intents and objectives, as well as evidence that supports the multiple victim exception to the general rule.
The first series of events demonstrates the intent to rob. Videl pointed a gun at Rios, asked where the marijuana was, and said he would shoot Broam-Tucker if he had to. Broam-Tucker told Videl the marijuana was at the gas station, so Videl's friend drove them to the gas station. When Kimmel entered the vehicle, Videl placed the pistol against his stomach, demanded the marijuana, and said, " . . . I'm not messing around." These acts support the robbery conviction because Videl demanded the marijuana while threatening Rios and Broam-Tucker, then later Kimmel, with his gun. (§§ 187 & 664.) Once Kimmel refused to supply the marijuana, which he did not have on him, the attempted robbery ended.
At that point, Kimmel pulled himself out of the car and ran toward the truck. Videl shot at Kimmel, while his friend shouted encouragement to "cap" Kimmel, demonstrating an element of attempted murder. A jury could reasonably conclude that Videl's actions were taken in response to his friend's statement, not to further the robbery, but out of frustration because the robbery had failed.
Additionally, the multiple victim exception to section 654 applies here. "We have long held that 'the limitations of section 654 do not apply to crimes of violence against multiple victims.' " (People v. Oates (2004) 32 Cal.4th 1048, 1063, quoting People v. King (1993) 5 Cal.4th 59, 78; People v. Newman (2015) 238 Cal.App.4th 103, 112-113 [defendant may be punished separately for an act of violence against two or more persons].) "As long as each violent crime involves at least one different victim, section 654's prohibition against multiple punishment is not applicable." (People v. Masters (1987) 195 Cal.App.3d 1124, 1128; see In re Ford (1967) 66 Cal.2d 183, 183-184 [multiple punishment for convictions of kidnap for robbery and robbery where three kidnap victims were also robbery victims].) This is because a defendant who commits an act of violence with intent to harm more than one person is more culpable than a defendant who harms only one person. (Oates, at p. 1063.) "Robbery at gunpoint is an act of violence under section 654." (Newman, at p. 121.) "There is a multiple victim exception to . . . section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective. (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631, citing People v. McFarland (1989) 47 Cal.3d 798, 803.)
Even if the attempted murder of Kimmel were part of the same intent and objective as the attempted robbery of Kimmel, the same cannot be said for the attempted robbery of Rios and Broam-Tucker. Though Videl argues that he attempted to rob only Kimmel, because the count charged attempted robbery of all three men, and Videl initially sought the marijuana from Broam-Tucker and Rios at gunpoint, there were multiple victims of the attempted robbery. Thus, section 654 does not limit sentencing.
IX
SECTIONS 667 AND 12022.53 SENTENCING ENHANCEMENTS
At the sentencing hearing, the court imposed a term of 87 years four months. This included 18 years for attempted murder (count 1); three years four months for carjacking (count 2); one year four months for attempted robbery (count 3); and 16 months for a felon in possession of a firearm (count 5). Additionally, pursuant to section 12022.53, subdivision (c), the court imposed firearm enhancements to counts 1, 2, and 3 of 20 years, six years eight months, and six years eight months. The court also added 10 years, five years for each prior felony, pursuant to section 667, subdivision (a), to counts 1 through 3. The court sentenced Videl to 14 years for the fourth count, discharge of a firearm at an occupied vehicle, but stayed the sentence under section 654.
Enhancements for prior convictions do not attach to any particular counts and are added as a final step in computing the total sentence. (People v. Sasser (2015) 61 Cal.4th 1, 10.) The parties do not dispute the base term imposed for each of Videl's determinate sentences, nor do they dispute that the enhancements under section 667 subdivision (a) attach to the person and not any particular count. (See Sasser, at p. 10.) Thus, the court's addition of five-year enhancements for each serious felony prior to counts 2 and 3 misapplied the law. Accordingly, on remand, we direct the court to strike the four additional section 667, subdivision (a) prior felony enhancements, totaling 20 years.
Additionally, in January 2018, section 12022.53, subdivision (h) was amended. (Stats. 2017, ch. 682, § 2.) The amended provision gives the trial court discretion under section 1385 to strike or dismiss a section 12022.53 firearm enhancement, possibly reducing the punishment. (See § 12022.53, subd. (h).) Because it is ameliorative, the amended law is retroactive to nonfinal judgments. (People v. Chavez (2018) 22 Cal.App.5th 663, 712.) In such instances, unless the record clearly indicates the trial court would have reached the same conclusion even it had been aware that it had discretion, a case should be remanded for resentencing. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Here, when the court applied the firearm enhancements of 20 years to the first count and six years eight months to each of the second and third counts, it was mandatory to do so. Nothing in the record indicates whether, given discretion, the court would have imposed the sentencing enhancements for discharging a firearm. Thus, on remand, the trial court should exercise its discretion pursuant to the newly amended section 12022.53.
DISPOSITION
The matter is remanded to the trial court for resentencing consistent with this opinion and without prejudice as to any other arguments related to sentencing enhancements that the parties raise before the trial court. We direct the trial court to strike the section 667, subdivision (a) prior felony enhancements attached to counts 2 and 3 at resentencing. The trial court is directed to amend the abstract of judgment to reflect sentencing modifications and to forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Appellant filed a motion for leave to file supplemental briefing to address an amendment to section 667, subdivision (a) and section 1385 that provides a trial court with discretion to strike a section 667, subdivision (a) enhancement and which becomes effective January 1, 2019. We denied this motion without prejudice for consideration at a later date. We offer no opinion as to what action, if any, the trial court should take with respect to this issue.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.