Opinion
H029339
6-13-2007
THE PEOPLE, Plaintiff and Respondent, v. TAM MINH VO, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Tam Minh Vo appeals from a judgment of conviction entered after a jury found him guilty of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187, 189, 664 — count 1), assault with a firearm (§ 245, subd. (a)(2) — count 2), and possession of a firearm by a felon (§ 12021, subd. (a)(1) — count 3). As to count 1, the jury found that defendant personally discharged a firearm and proximately caused great bodily injury (§§ 12022.7, 12022.53, subd. (d)). As to count 2, the jury found that defendant personally used a firearm and personally inflicted great bodily injury (§§ 12022.5, subd. (a), 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to 68 years to life in prison consecutive to a determinate term of 11 years.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends: (1) there was insufficient evidence that he acted with premeditation and deliberation; (2) the trial court erred in failing to instruct the jury that count 2 was a lesser included offense of count 1; (3) the trial court erred in failing to instruct the jury on accomplice testimony; (4) the trial court erred in instructing the jury pursuant to CALJIC No. 2.11.5; (5) the trial court erred in excluding evidence that certain witnesses were on probation; (6) trial counsel rendered ineffective assistance by failing to object to the admission of hearsay evidence; (7) the trial court improperly coerced the jury; (8) cumulative error requires reversal; (9) there was insufficient evidence that defendants Minnesota convictions were serious felonies; (10) the trial court erred in imposing sentence on a prior prison term enhancement under section 667.5, subdivision (b); and (11) section 654 bars imposition of sentence on count 3.
We conclude that there was insufficient evidence that defendants prior convictions were serious felonies and that the trial court erred in imposing sentence on a prior prison term enhancement. Accordingly, the judgment is reversed.
I. Statement of Facts
Phong Vu (Phong) knew Nhung Vo (Nhung) and Minh Vu (Minh), the co-owners of the Nhung restaurant. At approximately 10:00 p.m. on August 9, 2003, Phong went to the Nhung restaurant, and sat at table 5 with some of his friends. Phong saw other friends, including Co Tran (Co), Minh Pham, and Son, sitting at table 17. Ngoc Nguyen (Jimmy), My Nguyen (My), Hai Hoang (Hai), Hien Hoang (Hien), and defendant were also at table 17. Phong and Jimmy had a fight about four or five years earlier, but had since made peace.
The restaurant owners were not related to either defendant or Phong.
At trial, Phong testified that he did not see defendant at the restaurant. However, he testified at the preliminary hearing that he recognized defendant as having been there.
Son joined Phong at table 5, and some of Phongs other friends greeted him. About 10 to 15 minutes after Phong arrived, a group of people from table 17, including Jimmy, My, Hai, and Co, left the restaurant. Phong was not concerned when he saw the group talking outside the restaurant. However, about 10 minutes later, Co ran into the restaurant and said, "Phong theres trouble" or "Phong, there is a problem." Phong stood up and walked towards the front door when he heard what sounded like a firecracker. He saw a Vietnamese male, who was wearing a black hat, point something at him. Phong ducked, heard a few more sounds, and ran out the back of the restaurant. When he was outside, he realized that he had been shot in his arm.
Officers Matias Cervantes and Cassady Elischer responded to the Nhung restaurant at approximately 11:53 p.m. on the night of the shooting, and were told that it had been a false alarm. Minh stated that there had been a disturbance between 13 to 14 Vietnamese men outside his restaurant and that he had heard gunshots. He did not know who the shooter was. As the officers were leaving, they were told that someone had been hurt. They then returned to the restaurant, which looked clean and the chairs had been put on top of the tables. However, Officer Elischer saw broken bottles on the floor.
Phong was taken to the hospital where he underwent surgery. He had difficulty using his arm for approximately six months. Phong did not know defendant, and had never fought with him. He was unable to identify defendant at trial.
Detective Doug Tran was the investigating officer in the case. He interviewed Phong on August 14, 2003 and December 2, 2003. When Phong was shown a photographic lineup at the second interview, he said, "This picture, I think thats him. At the time of the shooting the guy was wearing a baseball cap. The face looks familiar. I had to turn away when I saw him pointing the gun at me. When I turn[ed] around he was wearing a hat, his hair was up high, the face was straight down like this . . . [h]is eyes looked like the shooter. I think he was the one with the gun." Phong then signed defendants photograph indicating that defendant was the shooter. Phong also told Detective Tran that defendant shot him, then changed his position to shoot at him again.
Nhung testified that she knew defendant, who was wearing black clothes and a black hat on the night of the shooting. No one else was dressed like defendant. She became concerned when some of the people at table 17 left the restaurant without paying the bill, so she watched them through the front window of the restaurant. Defendant was one of the people standing outside. Nhung saw Jimmy pull either a knife or a gun out of his pants. Someone then ran inside and said, "Phong, run away, they are going to beat you."
Nhung tried to hold the door closed, but several people pushed their way back into the restaurant. Nhung also heard someone say "something like long ago Phong beat Jimmy so now Jimmy wants to get revenge." Nhung did not see a gun in defendants hand when he entered the restaurant. However, when she heard the gunshots, she saw defendant pointing a gun at Phongs table. He fired three shots, the last two were in rapid succession. She was about 18 feet away from defendant at the time of the shooting, and she was certain that defendant was the shooter. Defendant ran out the front door, and Nhung activated an alarm. Hien entered the restaurant, cursed, and said that nobody should call the police. Hai threw beer bottles at a customer. Hai returned to the Nhung restaurant the next day and paid Nhung $100 of the $300 bill for table 17. He told her not to talk to the police, which she understood as a threat.
Nhung spoke to Detective Tran about the incident. She gave a description of the shooter that night, but did not identify defendant. The next day, however, she told Detective Tran that defendant was the shooter. She explained that she had not previously identified him, because she did not want other people to know that she had done so. In September 2003, she identified defendant as the shooter in a photographic lineup.
The trial court found that Nhung made a willful misstatement at an Evidence Code section 402 hearing. At trial, Nhung explained that she had not lied, but did not remember what happened because she was afraid. The trial court instructed the jury pursuant to CALJIC No. 2.21.2 [witness willfully false].
Minh, Nhungs husband, testified that he did not see the shooter and did not remember anyone at table 17 wearing black. After he heard the shots, he activated the alarm, which was audible in the restaurant and transmitted to the police. His trial testimony contradicted his statements to the police. He had previously identified defendant as the shooter in a photographic lineup. He had also told police that he had seen defendant shoot Phong. He had explained that he did not want to identify defendant, because he was afraid that his family would be harmed. Minh was impeached with his convictions for voluntary manslaughter and assault with a deadly weapon.
Jimmy testified that he went to the Nhung restaurant with Hien and Hai. Jimmy had met defendant two or three days earlier. According to Jimmy, defendant was dressed in black and wearing a black baseball cap. Jimmy, defendant, and others were sitting at table 17. Everyone was drinking beer, and Jimmy drank at least six in an hour. Jimmy saw Phong enter the restaurant. He acknowledged that they had a fight about four or five years earlier, but Jimmy no longer had any problems with him. Though some of the people knew about this fight, Jimmy did not discuss it that night.
About 30 to 45 minutes after Phong arrived, Jimmy went outside because he felt sick. Other people from table 17 also went outside. Jimmy then heard defendant, who appeared angry, arguing with someone. Jimmy did not know what they were arguing about, because he was so drunk. Jimmy denied that he had a knife or gun with him on the night of the shooting. As defendant opened the door to the restaurant, Jimmy saw him pull out a gun and say "something like, fuck you, fuck you." Jimmy did not recall telling Detective Tran that defendant said, "fuck Phong." When Jimmy heard the gunshots, he ran away. Jimmy did not want defendant to shoot Phong. Jimmy was impeached with convictions for seven counts of "trying to pass a worthless check" and grand theft. Jimmy was also on probation during the investigation and at the time of trial.
Hai testified that he went to the Nhung restaurant with his wife and brother Hien on August 9, 2003. They sat at table 17. He did not know anyone else at the restaurant, including the other people at table 17. At some point, he and others from table 17 went outside to smoke. Hai left before the shooting occurred and he did not know anything about it. However, he told Tran that he left the restaurant because of the disturbance. He denied throwing bottles at customers after the shooting. Though he admitted that he went to the restaurant the following day to pay the bill, he denied making any threats. Hai was impeached with convictions for first and second degree burglary, and attempted vehicle theft. Hai was also on parole at the time of trial.
Co testified that he went to the Nhung restaurant on the night of the shooting. However, he was drunk and did not remember if any of his friends sat at table 17. He did not know defendant and did not remember seeing him in the restaurant that night. Co knew Phong and said hello to him. Later, Co went outside to smoke, but did not speak to anyone else. He did not remember whether he saw anyone dressed in black. He overheard someone say something about Phong and fighting, but he did not know who was speaking. Co ran into the restaurant and yelled to Phong that there were people who wanted to beat him up and he should run. Less than a minute later, Co heard two or more gunshots. He did not see the shooter.
On October 4, 2003, defendant was arrested. He told Detective Tran that he was not at the Nhung restaurant on the night of the shooting. He denied knowing Hai or Jimmy.
II. Discussion
A. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence that the attempted murder of Phong was premeditated and deliberate.
Generally, "[t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) We also review "the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court provided guidance in assessing the sufficiency of evidence regarding premeditation and deliberation. The court found that three categories of evidence were relevant to this assessment: planning activity, motive, and manner of killing. (Id. at pp. 26-27.) "However, as later explained in People v. Pride (1992) 3 Cal.4th 195, 247: Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate courts assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.] Thus, while premeditation and deliberation must result from careful thought and weighing of considerations [citation], we continue to apply the principle that [t]he process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citations.]" (People v. Hughes (2002) 27 Cal.4th 287, 370-371, internal citations and quotation marks omitted.)
In the present case, there was substantial evidence to support the jurys finding that the attempted murder was the result of defendants premeditation and deliberation rather than a rash impulse. After Phong arrived, defendant left the restaurant with several people from table 17. Defendant, who appeared to be angry, then began arguing with other members of the group. When Co overheard statements by this group that indicated Phong was in danger, he entered the restaurant and told Phong to leave. This evidence indicated that defendant was engaged in some planning activity and had more than ample time to consider and reflect upon his subsequent actions. As defendant entered the restaurant, he pulled out a gun, and said, "fuck Phong." He pointed the gun at Phong and fired. Phong ducked and ran. Defendant then changed his position, pointed the gun at Phong, and fired twice. In firing directly at Phong three times, defendant intentionally attempted to kill him according to a preconceived design. The fact that defendant fired at relatively close range and did not kill Phong did not establish that the attempted murder was not premeditated and deliberate. Once Co warned Phong and the alarm was activated, defendant had only moments to shoot Phong, who was attempting to escape. Thus, both defendants opportunity for reflection and the manner of the attempted killing established the necessary elements of the charged offense.
Defendant argues, however, that there was insufficient evidence, because the prosecutor failed to establish motive. Though there was some evidence of motive, the prosecutor indicated in closing argument that he was not relying on a theory of motive to establish defendants intent in shooting Phong. As the California Supreme Court has acknowledged, the Anderson courts reference to motive as a guide in assessing premeditation and deliberation is not determinative. (People v. Perez (1992) 2 Cal.4th 1117, 1125-1126.) Thus, the jury could reasonably find that evidence of planning activity and the manner of the shooting established the requisite elements despite the absence of motive.
B. Lesser Included Offense
Defendant next contends that he was deprived of due process, because the trial court failed to instruct the jury that assault with a firearm (count 2) was a lesser included offense of attempted murder (count 1) with the use of a firearm.
There are two tests to determine whether a lesser offense is necessarily included in a greater offense. (People v. Birks (1998) 19 Cal.4th 108, 117.) "Under California law a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Ibid.) Under either test, assault with a firearm is not included within attempted murder, because attempted murder can be committed without also committing assault with a firearm. (People v. Sanchez (2001) 24 Cal.4th 983, 988; People v. Wolcott (1983) 34 Cal.3d 92, 96 (Wolcott).) Thus, the trial court did not have a duty to instruct the jury that count 2 was a lesser included offense of count 1.
Defendant argues, however, that the firearm enhancement allegation to the attempted murder count should be considered as part of the accusatory pleading for the purpose of defining a lesser included offense. Defendant acknowledges that the California Supreme Court has rejected this argument in Wolcott. He claims that, in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and the California Supreme Courts discussion of these decisions in People v. Black (2005) 35 Cal.4th 1238 (Black), the continuing validity of Wolcott is questionable.
The California Supreme Court has granted review in People v. Sloan, review granted June 8, 2005, S132605 ["should enhancement allegations be considered in determining whether a lesser offense is necessarily included in a charged offense"] and People v. Izaguirre, review granted June 8, 2005, S132980 ["was an enhancement under Penal Code section 12022.53, subdivision (d), necessarily included within the conviction for first degree murder (Pen. Code, section 187) with a drive-by shooting special circumstance (Pen. Code, section 190.2(a)(21)"].
Apprendi, Blakely, and Black involve a criminal defendants right to a jury trial and proof beyond a reasonable doubt as to any fact, other than the fact of a prior conviction, that would increase his or her sentence beyond the statutory maximum. (Apprendi, supra, at p. 490; Blakely, supra, at p. 301; Black, supra, at pp. 1262-1263.) None of these cases addressed the propriety of lesser included instructions. Accordingly, this court is bound by Wolcott. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Accomplice Testimony
Defendant also argues that the trial court erred in failing to instruct the jury on the law regarding accomplice testimony. (CALJIC Nos. 3.10 [accomplice defined]; 3.11 [testimony of accomplice must be corroborated]; 3.12 [sufficiency of evidence to corroborate an accomplice]; 3.19 [burden to prove corroborating witness is an accomplice]; and 3.18 [testimony of accomplice to be viewed with caution].)
An accomplice is a person who is liable for prosecution for the same offense charged against a defendant. (§ 1111.) "In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. [Citation.] That section defines principals to include `[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . . (Pen. Code, § 31.)" (People v. Fauber (1992) 2 Cal.4th 792, 833.) When the evidence establishes that a witness may be found to be an accomplice, the trial court must instruct sua sponte on accomplice testimony. (People v. Tobias (2001) 25 Cal.4th 327, 331.) We review any error regarding accomplice instructions under the Watson standard, that is, whether it is reasonably probable that a result more favorable to the defendant would have been reached if the jury had been properly instructed. (People v. Lewis (2001) 26 Cal.4th 334, 371.)
Defendant argues that this court should consider any error subject to either the reversible per se (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282) or harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) standard. However, this court is bound by People v. Lewis, supra, 26 Cal.4th 336. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp. 455-456.)
We will assume the fact that Jimmy furnished defendant with the gun , and thus he was an accomplice to the charged offenses. However, any error in failing to instruct the jury that Jimmy was an accomplice and that his statements required corroboration and should be viewed with caution was harmless. "Failure to instruct pursuant to section 1111 is harmless if there is sufficient corroborating evidence. Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1271.) Here Jimmys identification of the shooter was corroborated by Nhungs testimony that she saw defendant shoot at Phong. Phong also identified defendant in a photographic lineup as the shooter. In addition, though he recanted at trial, Minh identified defendant as the shooter in a photographic lineup, and told the police that he had seen defendant shoot Phong. Thus, since there was sufficient corroboration of Jimmys testimony, it is not reasonably probable that there would have been a more favorable result to defendant if the accomplice instructions had been given.
D. CALJIC No. 2.11.5
Defendant contends that the trial court committed reversible error by instructing the jury pursuant to CALJIC No. 2.11.5. He claims that the instruction erroneously advised the jury not to consider why Jimmy was not being prosecuted when assessing his credibility.
CALJIC No. 2.11.5 provides: "There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he or she has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial." "`CALJIC No. 2.11.5 . . . should not be given when a nonprosecuted participant testifies because the jury is entitled to consider the lack of prosecution in assessing the witnesss credibility." (People v. Williams (1997) 16 Cal.4th 153, 226.)
The People contend that CALJIC No. 2.11.5 did not apply to Jimmy, because the only evidence linking him to the crime was Nhungs testimony that she saw him with a gun or knife before the shooting. They argue that the instruction applied to Hien, who did not testify. Hien was sitting at table 17 with defendant, returned to the restaurant after the shooting, and said that nobody should call the police.
"Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Andrews (1989) 49 Cal.3d 200, 218.) Here, to the extent that defendant claims that CALJIC No. 2.11.5 could have been improperly interpreted to apply to Jimmy, defendant has forfeited the issue on appeal by failing to request a clarifying instruction.
Relying on the prosecutors closing argument, defendant claims that he has not forfeited the issue. The prosecutor told the jury: "Incidentally, why wasnt Jimmy arrested for possession of a knife or gun? Well, remember the testimony was [Nhung] said that he had something black, that it looked like a gun, then she thought it might be a knife. In the courtroom she said it might be a knife. And so as to whether or not there is actual evidence of a crime committed by Jimmy, I dont believe thats been established here. But again, youre not here to decide whether or not Jimmy indicated [sic] a crime and Im not going to tell you that the evidence is Jimmy had nothing to do with this. But what youre here to decide is one thing. Did the defendant do the shooting?" However, defendant has forfeited the issue on appeal, because he did not object to the prosecutors statements at trial. (People v. Riel (2000) 22 Cal.4th 1153, 1212.)
E. Admissibility of Evidence of Probationary Status
Defendant argues that he was deprived of his Sixth Amendment right to confront witnesses when the trial court excluded evidence of Nhungs and Cos probationary status and restricted the cross-examination of Phong.
1. Background
The prosecutor brought a motion in limine to exclude any reference to the probationary or parole status of various witnesses, including Nhung, Phong, and Co. The prosecutor acknowledged that the defense was entitled to elicit evidence that a witness is motivated by an expectation of leniency, or that he is on probation or parole. However, he argued that the evidence in the present case should be excluded under Evidence Code section 352.
The trial court then held a hearing under Evidence Code section 402. Detective Tran testified that he did not know that Nhung and Co were on probation and the subject never arose with these witnesses or Phong. Detective Tran did not threaten any of the witnesses with potential criminal charges either because of his investigation or their actions that night. He also did not make any promises or offers to help these witnesses in exchange for their cooperation. None of these witnesses asked Detective Tran for any assistance in any pending cases or for help in any way.
Phong was on felony probation for possession of cocaine at the time of the incident and when Detective Tran first interviewed him on August 14, 2003. Defendant sought to cross-examine Phong about his probationary status on the night of the shooting, because he may have been drinking alcohol in violation of his probation conditions. Defendant argued that Phongs potential violation may have been a motive for him to lie about the events of that night. Defendant also argued that he should be allowed to show that Phongs probation was not revoked and thus Phong had been given favorable treatment in exchange for his testimony. The prosecutor pointed out that Phong was no longer on probation, which indicated that there was no coercion in obtaining his cooperation. The prosecutor then argued that evidence of his probationary status was inadmissible under Evidence Code section 352.
The trial court reserved its ruling, stating that defendant could request an Evidence Code section 402 hearing at which defendant could ask whether Phong was promised or given any leniency in return for his testimony. The trial court also stated that it reserved its ruling on whether defendant could impeach Phong with his conviction. Defendant never requested a hearing.
At trial, the prosecutor asked Phong if he had been drinking on the night of the incident. Phong testified that he had three beers in violation of his probation conditions. On cross-examination, defense counsel asked whether Phong had been drinking despite his probationary status. Phong answered, "Yes."
Nhung was on probation at the time of the offense and at the time of trial for a misdemeanor. Noting that her conviction was not a crime of moral turpitude, the trial court ruled that neither her conviction nor probation status was admissible unless defendant had evidence that she had been promised leniency or threatened with a violation of probation.
Co was on probation for a misdemeanor conviction of driving under the influence of alcohol at the time of the offense and at the time of trial. The trial court ruled that his conviction and probation status was inadmissible because the underlying crime was not a crime of moral turpitude.
2. Analysis
A criminal defendant has a federal constitutional right to confront witnesses against him or her. (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S. 400, 406-407.) Undue restrictions on a criminal defendants cross-examination of a prosecution witness may amount to a deprivation of the constitutional right of confrontation. (Davis v. Alaska (1974) 415 U.S. 308, 318.) Exposing a witnesss bias is an important function of cross-examination. (Id. at pp. 316-317.) However, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Thus, Evidence Code section 352 authorizes the trial court to restrict cross-examination if the probative value of the evidence "`is substantially outweighed by the probability that its admission with (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury." (People v. Harris (1989) 47 Cal.3d 1047, 1090-1091.) This court reviews the trial courts ruling on the admissibility of evidence under the abuse of discretion standard. (People v. Ledesma (2006) 39 Cal.4th 641, 704.)
In People v. Harris, supra, 47 Cal.3d 1047, the defendant argued that the trial court erroneously excluded evidence that a "key" prosecution witness was on misdemeanor probation and was in custody for another offense. (Id. at p. 1090.) At the conclusion of an Evidence Code section 402 hearing, the trial court found that this witness had not been offered a reward or immunity in the pending case in exchange for his cooperation. (Ibid.) The trial court also found that the witness had not been offered any assistance relating to his probationary status. (Ibid.) The California Supreme Court held that the trial court did not abuse its discretion in excluding the evidence "[i]n the absence of any offer of proof by defendant that [the witness] had been threatened with probation violation, or other sanctions, or had been offered incentives for his testimony . . . ." (Id. at p. 1091.)
Here the record established that Detective Tran did not threaten any witnesses with potential criminal charges. He also did not offer to help them in exchange for their cooperation, and none of the witnesses asked him for assistance. Moreover, the defense never made an offer of proof that Phong, Nhung, or Co had been threatened with probation violations or offered leniency in their cases by any other officer or member of the district attorneys office. Thus, there was nothing to indicate that the probationary status of these witnesses was relevant to a determination of their credibility. Under these circumstances, the trial court did not abuse its discretion in excluding the evidence.
Defendant argues that Harris is distinguishable, claiming that the trial court in the present case did not weigh the probative value of the evidence against its prejudicial effect. We disagree. The prosecutor presented both written and oral argument that the evidence in the present case should be excluded under Evidence Code section 352. Where the parties arguments have focused on Evidence Code section 352, the trial courts failure to balance the probative value of the evidence over its prejudicial effect on the record is not error. (People v. Raley (1992) 2 Cal.4th 870, 894-895.) Thus, we conclude that Harris is controlling in the present case.
F. Ineffective Assistance of Counsel
Defendant claims that he was denied his Sixth Amendment right to the effective assistance of counsel when his trial counsel failed to object to the hearsay statements of Nhung, Jimmy, Phong, and Co that were admitted through the testimony of Detective Tran.
1. Standard of Review
"In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams, supra, 16 Cal.4th 153, 215.)
2. Background
a. Nhungs Testimony
Nhung testified that defendant, who was wearing a black shirt, black pants, and a black hat, was at the restaurant on the night of the shooting. While defendant and others were outside, someone ran inside and said "Phong, run away, they are going to beat you." She also heard someone say "something like long ago Phong beat Jimmy so now Jimmy wants revenge." She saw defendant enter the restaurant, point a gun in the direction of Phongs table, shoot three times, and run away. She was certain that defendant was the shooter.
Nhung also testified that she did not tell Detective Tran that defendant was the shooter on that night, because she was scared. However, she did identify defendant the following day. In September 2003, Nhung identified defendant as the shooter in a photographic lineup. She also identified defendant as the shooter at the preliminary hearing and at trial.
b. Nhungs Statements to Detective Tran
Detective Tran testified that Nhung did not know the identity of the shooter on the night of the incident. However, she told Detective Tran that the shooter was wearing a black shirt, pants, and hat, was in his twenties, short and skinny. She told him that someone wanted revenge for Jimmy, that someone ran in and told Phong to run. When Detective Tran returned the following day, Nhung stated that defendant was the shooter. She also stated for the first time that Jimmy and Hai were in the restaurant the previous night. She told Detective Tran that she had not provided these names because she was afraid others would hear. She reported that Jimmy had a knife and Hai had returned to the restaurant to pay the bill.
Detective Tran also testified that Nhung identified defendant in a photographic lineup. In a subsequent interview, she told Detective Tran that Jimmy had a knife, but later said it might have been a gun.
On cross-examination, Detective Tran testified that Nhung told him that she saw the shooter enter the restaurant and point a gun at Phongs table, and Phong run towards the back door. Nhung did not identify the shooter.
c. Jimmys Testimony
Jimmy testified that he and Phong had a fight four or five years prior to the night of the shooting, but they no longer had problems; that defendant was wearing black, including a black hat; that defendant was arguing outside the restaurant, but he did not know what he said because he was drunk; that defendant pulled out the gun inside the restaurant; that defendant said "fuck you" or "fuck your mother"; that he heard shots and ran away; and he did not want defendant to shoot Phong. Jimmy also testified that he told Detective Tran that he was scared that defendant would learn that he had identified him. Jimmy was sure that defendant entered the restaurant with a gun, and he denied having a knife or gun prior to the shooting.
d. Jimmys Statements to Detective Tran
Jimmy provided Detective Tran with specific details about the shooting and the names of the individuals who were present. He identified defendant as the person with the gun and stated that defendant said, "fuck Phong" as he entered the restaurant. Jimmy denied giving defendant the gun and stated that he did not want to be the person who identified defendant.
e. Phongs Testimony
Phong testified about the events on the night of the shooting. He also testified that he did not see anyone in the courtroom whom he recognized as having been at the restaurant on the night of the shooting. However, he was impeached with his testimony from the preliminary examination that defendant had been drinking at the restaurant. Phong further testified that he had signed the back of defendants photograph and indicated that he was the shooter. Phong also testified that he told Detective Tran that he was not sure about his identification of defendant on a videotape and could not remember the shooters face.
f. Phongs Statements to Detective Tran
Phong described the events prior and during the shooting to Detective Tran. Phong selected defendants photograph from a lineup. In a subsequent interview, he explained his relationship with Jimmy. Phong also stated that Jimmy was sitting at the same table as the shooter. Phong told Detective Tran that he would be able to identify the shooter in the videotape and the photographic lineup. He also identified defendant as the shooter.
g. Cos Testimony
Co testified that he did not recognize anyone in the courtroom. He heard someone say something about fighting Phong. He initially denied running into the restaurant and yelling something to Phong. However, he later testified that he told Phong to run.
h. Cos Statements to Detective Tran
Detective Tran testified that Co told him that he yelled something to Phong prior to the shooting and that he did not see the shooter.
3. Admissibility of Evidence
In determining the credibility of a witness, the trier of fact may consider whether the witness made a prior statement that was either consistent or inconsistent with his or her testimony. (Evid. Code, § 780, subds. (g), (h).) However, the admissibility of evidence of prior consistent statements is limited. "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." (Evid. Code, § 791.)
There are also restrictions on the admissibility of prior inconsistent statements. "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action." (Evid. Code, § 770.)
Where these requirements of Evidence Code section 770 and 791 are met, the hearsay rule does not preclude the admission of prior inconsistent or consistent statements. (Evid. Code §§ 1235, 1236.)
Evidence Code section 1235 states: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770."
Evidence Code section 1236 states: "Evidence 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."
a. Nhungs Statements
Noting that one of the defense theories was that Nhung identified defendant as the shooter after Hai paid her money, the People argue that Nhungs prior consistent statements were admissible under Evidence Code section 1236 to rehabilitate her credibility. However, only those prior consistent statements that were made "before the alleged inconsistent statement" were admissible. (Evid. Code, § 791, subd.(a).) Thus, Nhungs prior consistent statements to Detective Tran on the night of the shooting were admissible. However, her statements in which she subsequently identified defendant as the shooter during an interview and in a photographic lineup were inadmissible as hearsay.
The People also focus on Nhungs prior statements about Hai. However, defendant has not challenged the admissibility of these statements.
The People next assert that some of Nhungs statements were admissible as prior inconsistent statements. On cross-examination, Nhung testified that Jimmy had a knife and she did not tell Detective Tran that she saw Jimmy take out a gun. Detective Tran testified that Nhung initially said that Jimmy had a knife, but later said it might have been a gun. Since these statements to Detective Tran were inconsistent with her prior testimony, they were admissible as prior inconsistent statements. (Evid. Code, §§ 770, 1235.)
b. Jimmys Statements
Jimmys testimony as to what defendant said as he entered the restaurant was inconsistent with his statement to Detective Tran. Thus, Jimmys statement that defendant said, "fuck Phong," was admissible as a prior inconsistent statement. (Evid. Code, §§ 770, 1235.)
The People next argue that Jimmys statements to Detective Tran that were consistent with his trial testimony were admissible as prior consistent statements, because his credibility had been attacked by defendant. However, only those prior consistent statements that were made "before the alleged inconsistent statement" were admissible. (Evid. Code, § 791, subd.(a).)
c. Phongs Statements
The People contend that some of Phongs statements to Detective Tran were admissible as prior inconsistent statements. We agree. Phongs testimony that he told Detective Tran that he was unsure about whether he would be able to identify the shooter and that he did not remember the shooters face was inconsistent with his prior statement to Detective Tran. (Evid. Code, §§ 770, 1235.) However, the remainder of Phongs statements to Detective Tran was consistent with his trial testimony, and inadmissible hearsay evidence.
d. Cos Statements
Cos prior consistent statements to Detective Tran were inadmissible, because he had not made prior inconsistent statements that were admitted to attack his credibility. (Evid. Code, §§ 791, subd. (a), 1236.)
4. Competency of Counsel
We have concluded that the following statements to Detective Tran were inadmissible: Nhungs statements which she identified defendant as the shooter; Jimmys statements with the exception of "fuck Phong;" Phongs statements regarding his ability to identify the shooter; and Cos statements. Thus, trial counsel had grounds to object to these statements as inadmissible hearsay. However, "the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Here trial counsel might not have objected to any prior consistent statements, because she did not want to draw the jurys attention to this testimony. Trial counsel might have believed that the jury would infer that this evidence undermined the defense. In any event, assuming that a reasonably competent counsel would have objected to this evidence, defendant has failed to show prejudice. These statements to Detective Tran merely reiterated the prior testimony of the witnesses. (See People v. Crew (2003) 31 Cal.4th 822, 842; People v. Jenkins (2000) 22 Cal.4th 900, 1016.) Accordingly, it is not reasonably probable that the result of the trial would have been different if trial counsel had objected to the admission of the evidence. (People v. Williams, supra, 16 Cal.4th at p. 215.)
G. Coercion of the Jury
Defendant also contends that the trial court improperly coerced the jurors by ordering them to vote. He claims that the trial ordered them "to return to the jury room and immediately vote," thereby causing "each juror to maintain a more rigid view of their individual position, closing them off to the free and open debate on which the deliberative process rests." Thus, he claims that he was deprived of his rights to due process, a fair trial, and an impartial jury. (U.S. Const., 6th & 14th Amends.) We find no merit to this claim.
Following argument by counsel, the trial court instructed the jury regarding the verdict forms. The trial court then stated: "Now, this is going to sound silly, I know, but Im going to order that you vote. This has actually happened where juries dont vote. So were going to supply you with some paper, please as to Count 1, 2, 3, everybody get a little piece of paper and write down either guilty or not guilty and vote in the particular case, and whoever the foreperson is will count those. If youre able to do so, to reach a unanimous verdict, make sure you do vote on all the issues in the case. If you find him not guilty of Count 1, dont go to the enhancements, go to Count 2. [¶] Now, I suggest at first you pick a foreperson to preside over you deliberations. And tentatively discuss all the counts and all the allegations and review the evidence and the instructions before you actually vote on any of them."
Here the trial court instructed the jury to discuss the charges, review the evidence, and the instructions before it voted on defendants guilt. Thus, there is no reasonable likelihood that the jury would have understood that it was to vote immediately upon its return to the jury room without engaging in any discussion. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Clair (1992) 2 Cal.4th 629, 663.)
Defendant also argues that the trial court erred by requiring the jury to vote "at any time" during its deliberations. Voting, however, allowed the jurors to know whether they had reached a unanimous verdict. In the event that a verdict had not yet been reached, the jurys deliberations would have continued. Moreover, we fail to understand how the trial courts instruction would result in "each juror draw[ing] a line in the sand and cast[ing] a vote that an individual juror would thereafter be unlikely to change." The trial court properly instructed the jury pursuant to CALJIC Nos. 17.40 and 17.41, stating: "The people and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. [¶] Do not decide any issue in this case by the flip of a coin, or by any other chance determination. [¶] The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown it is wrong. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts." In considering the instructions as a whole, which this court must (People v. Mayfield (1997) 14 Cal.4th 668, 777), we conclude that the challenged instruction did not interfere with the jurys deliberations.
H. Cumulative Error
Defendant contends that the cumulative impact of the errors in this case deprived him of a fair trial and due process of law. We disagree. We have concluded that the failure to give accomplice instructions and the admission of evidence of prior consistent statements constituted error. However, even when considering the effect of these errors together, there was no prejudice. "Defendant has merely shown that his trial was not perfect—few are. (People v. Bradford (1997) 14 Cal.4th 1005, 1057, internal citations and quotation marks omitted.)
I. Sufficiency of Evidence of Enhancements
Defendant argues that there was insufficient evidence to support the findings that his two prior robbery convictions in Minnesota constituted serious felonies under the "Three Strikes" law.
1. Background
Defendant was charged with two strike prior convictions (§ 1170.12) and one prior serious felony conviction (§ 667, subd. (a)) arising from convictions entered after his guilty plea in 1991 to two counts of aggravated robbery in Minnesota. Defendant waived his right to a jury trial on these allegations. During the court trial, the prosecutor introduced the judgment from the State of Minnesota, a copy of the Minnesota statute defining aggravated robbery, and the Minnesota Session Laws, which reflected a change to the aggravated robbery statute. The prosecutor argued that the California definition of robbery and the Minnesota definition of aggravated robbery were "almost identical as far as the elements needed to prove up the charge of robbery." Defense counsel argued that aggravated robbery in Minnesota did not contain all the elements of robbery in California, because "nowhere in [the Minnesota] definition does it require the application of force or fear to the person robbed." Noting that the elements of the two statutes were "very similar," the trial court found that the prior conviction allegations were true under the Three Strikes law.
2. Analysis
The People contend that defendant has forfeited his claim, because he failed to make the same arguments before the trial court that he does in this appeal.
In People v. Rodriguez (1998) 17 Cal.4th 253, the defendant challenged the sufficiency of the evidence to support the trial courts finding that his prior conviction for assault constituted a serious felony (§ 1192.7, subd. (c)), and thus a strike under the Three Strikes law (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)). (Id. at p. 261.) On appeal, the People argued that the defendant had waived his right to challenge the true finding on the allegation by failing to file a demurrer to the information. (Id. at 262.) The California Supreme Court rejected this argument, stating that the "defendant could not waive his right to challenge the sufficiency of the evidence on which the [prior conviction] allegation was found true until it was found true and, then, only by failing to file a timely notice of appeal." (Ibid.) Thus, the court considered the issue of the sufficiency of the evidence.
More recently, in People v. Rodriguez (2004) 122 Cal.App.4th 121, the defendant challenged the sufficiency of the evidence to support the trial courts finding that his foreign conviction met all the elements of a serious felony in California. ( Id. at p. 129.) The People claimed that the defendant had forfeited his claim because he did not present the same arguments at trial that he made on appeal. (Ibid.) The reviewing court rejected this argument, stating that "[g]enerally issues of sufficiency of the evidence are never waived." (Ibid., quoting People v. Neal (1993) 19 Cal.App.4th 1114, 1122.)
The People argue that the instant case is governed by People v. Scott (1994) 9 Cal.4th 331, 356, in which the court held that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." Here, however, the issue is not whether the trial court properly exercised its sentencing discretion, but whether there was substantial evidence to support the finding that the foreign convictions constituted violent or serious felonies under California law. Thus, we conclude that defendant has not forfeited his claim.
Under the Three Strikes law, a criminal defendant convicted of a felony, who has previously been convicted of a serious and/or violent felony, receives an enhancement punishment. (See §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) A prior conviction that qualifies as a violent or serious felony is commonly known as a strike. (People v. Barragan (2004) 32 Cal.4th 236, 239.) A defendant who has two or more strikes, must receive an indeterminate life sentence to state prison, the minimum term being 25 years. (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).) When a person has been convicted of a serious felony, an additional five-year prison term must be imposed for any prior serious felony. (§ 667, subd. (a)(1).)
A foreign conviction that contains all the elements of a serious or violent felony in California qualifies as a prior felony conviction under the Three Strikes law. (People v. Warner (2006) 39 Cal.4th 548, 552-553.) In determining the truth of a prior conviction allegation, the trier of fact may consider the entire record of conviction. (People v. Woodell (1998) 17 Cal.4th 448, 452-453.) However, "`[w]hen the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law." (People v. Rodriguez, supra, 17 Cal.4th at p. 262, quoting People v. Guerrero (1988) 44 Cal.3d 343, 355.)
In 1991, Minnesota law defined robbery as: "Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the persons resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery . . . ." (Minn. Stats. § 609.24.) Aggravated robbery was defined as: "Whoever, while committing a robbery is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery . . . ." (Minn. Stats. § 609.25.)
In California, robbery is the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.)
Defendant contends that his 1991 aggravated robbery convictions did not qualify as serious or violent felonies. He argues that California law requires specific intent to permanently deprive a person of possession of the property while Minnesota law does not.
Relying on State v. Charlton (Minn. 1983) 338 N.W.2d 26, the People argue that specific intent is an element of the crime of robbery. In Charlton, the court stated: "[I]ntent is not specified as an element of robbery or aggravated robbery in section 609.24 or 609.245, although knowledge, that the accused knows he is not entitled to the property he takes, is so specified in section 609.24. A criminal state of mind, or mens rea, is a required element of any crime originating in the common law, and where not specified in the statute is implied as a matter of law. We have implied that specific intent, or a purposeful or conscious desire to bring about a criminal result, is an element of robbery charge." (Id. at pp. 29-30, fn. and citations omitted.)
However, a generalized intent to bring about a criminal result is not the equivalent of a specific intent to permanently deprive a person of possession of property as that requirement has been defined in People v. Avery (2002) 27 Cal.4th 49. The Avery court stated that "`the intent to deprive an owner of the main value of his property is equivalent to the intent to permanently deprive an owner of property." (Id. at p. 57, quoting People v. Zangari (2001) 89 Cal.App.4th 1436, 1443.) Thus, the intent element for robbery in Minnesota is not identical to that in California.
Defendant also argues that robbery, as defined under Minnesota law, lacks the requirement that the victim be in possession of the property. Under Minnesota law, robbery is defined as any taking from "the person or in ones presence." (State v. Bonn (Minn.App. 1987) 412 N.W.2d 28, 29-30.) The People argue that constructive possession satisfies the California requirement that the property taken must be in the possession of another. For purposes of retrial, we direct the parties attention to State v. Burrell (Minn.App. 1993) 506 N.W.2d 34, 36, fn. 1.)
Defendant acknowledges that the retrial of prior conviction enhancement allegations does not violate federal or state double jeopardy prohibitions under Monge v. California (1998) 524 U.S. 721, 734, and People v. Monge (1997) 16 Cal.4th 826, 845. He argues, however, that these decisions have been undermined by the decision in Apprendi. This argument was rejected in People v. Jenkins (2006) 140 Cal.App.4th 805, 813-816. The Jenkins court concluded that "while Apprendi may indeed require a jury determination of factual issues pertaining to foreign prior convictions, where, as here, the prosecutor introduces barebones evidence of the fact of the foreign conviction and its general nature, the issue of whether the foreign jurisdictions law contains the same elements as California law is a legal one, to be decided by the judge, not the jury. Accordingly, there is no merit to appellants claim that Apprendi precludes application of People v. Barragan, supra, 32 Cal.App.4th 236, and People v. Monge, supra, 16 Cal.4th 826, because additional factual determinations were required. An additional legal determination was required, but the only factual determination was that expressly excepted from the scope of Apprendi, i.e., whether appellant had suffered the [foreign] convictions alleged in the information." (Id. at pp. 815-816.) We agree with this analysis and remand the matter for retrial.
J. Prior Prison Term Enhancement
Defendant contends, and the People concede, that the trial court erred in imposing sentence for a prior prison term enhancement under section 667.5.
The amended information erroneously alleged that defendant served a prior prison term for ex-felon in possession of a firearm (§ 12021) in case No. 153601. Defendant served a prison term in that case for assault with a firearm (§ 245, subd. (a)(2)). Defendants sentence for the section 12021 violation was stayed pursuant to section 654. When a term has been stayed, a defendant does not serve a prison term based on that conviction. (People v. Percelle (2005) 126 Cal.App.4th 164, 178.) Accordingly, we will strike the prior prison term enhancement imposed for the ex-felon in possession of a firearm conviction.
K. Section 654
Defendant next argues that the trial court erred in failing to stay imposition of sentence on count 3 (ex-felon in possession of a weapon) pursuant to section 654.
Section 654 provides, in relevant part, that "[a]n 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." Thus, section 654 precludes multiple punishment "where the convictions arise out of an indivisible transaction and have a single intent and objective." (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct." (People v. Blake (1998) 68 Cal.App.4th 509, 512.) The trial courts determination that a defendant maintained multiple criminal objectives is a question of fact that must be upheld if supported by substantial evidence. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Here there was sufficient evidence to support the trial courts finding that defendant entertained multiple criminal objectives in shooting Phong and possessing the firearm. "[I]f the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendants hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon." (People v. Ratliff (1990) 223 Cal.App.3d 1401, 1412.) Given the equivocal nature of Nhungs testimony about whether Jimmy possessed a knife or a gun outside the restaurant, the trial court could reasonably conclude that defendant was in possession of the firearm prior to arriving at the restaurant. Thus, defendants possession of the firearm was not merely incidental to the attempted murder. The trial court did not err in imposing a concurrent term on count 3.
III. Disposition
The judgment is reversed. The one year prior prison term imposed for the ex-felon in possession of a firearm conviction is stricken. The trial court is directed to vacate the true finding on the allegations that defendant suffered two prior convictions in Minnesota for aggravated robbery. These allegations may be retried. If again found true, the trial court shall reinstate the judgment. If the allegations are found not true or are not retried, the trial court shall resentence defendant.
We concur:
Bamattre-Manoukian, Acting P.J.
Duffy, J.