People
v.
Miranda

This case is not covered by Casetext's citator
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIASep 10, 2018
D074039 (Cal. Ct. App. Sep. 10, 2018)

D074039

09-10-2018

THE PEOPLE, Plaintiff and Respondent, v. FRANKIE STEVE MIRANDA, Defendant and Appellant.

William J. Capriola, 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 Christine Y. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR022715) APPEAL from a judgment of the Superior Court of San Bernardino County, Gregory S. Tavill, Judge. Affirmed in part; reversed in part; remanded with directions. William J. Capriola, 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 Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Frankie Steve Miranda of first degree murder (Pen. Code, § 187, subd. (a); count 1) and second degree robbery (§ 211, count 3). The jury found true certain firearm enhancements relating to count 1 under section 12022.53, subdivisions (b), (c), and (d). The jury also found true that Miranda personally used a firearm (a handgun) within the meaning of section 12022.53, subdivision (b).

Statutory references are to the Penal Code unless otherwise specified.

The court sentenced Miranda to prison for 50 years to life, consisting of 25 years to life for count 1 plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The court also sentenced Miranda to an additional five years for count 3 plus 10 years for the section 12022.53, subdivision (b) enhancement on count 3, but stayed the count 3 related sentence under section 654.

Miranda appeals, contending the trial court abused its discretion in denying his motion for a new trial based on an alleged Brady error. He also maintains substantial evidence does not support his robbery conviction. We reject Miranda's contention that the court erred in denying his motion for new trial. However, we agree that substantial evidence does not support his robbery conviction.

Brady v. Maryland (1963) 373 U.S. 83.

Also, while this case was pending, Miranda filed a supplemental brief to explain the impact, if any, of amended section 12022.53, subdivision (h) on his sentence. That subdivision allows the superior court, in the interest of justice, to strike certain enhancements under section 12022.53. (See § 12022.53, subd. (h).) The People concede that section 12022.53, subdivision (h) applies to Miranda and agree that this matter should be remanded to allow the superior court to consider whether Miranda's firearm enhancement should be stricken.

The amended section 12022.53, subdivision (h) became effective on January 1, 2018.

In summary, we reverse Miranda's conviction as to count 3. Because substantial evidence does not support the conviction under count 3, that count should be dismissed. The true finding under section 12022.53, subdivision (b) as to count 3 must be stricken as the conviction pursuant to the underlying offense has been reversed. We affirm the remainder of the judgment and remand this matter back to the superior court for further proceedings consistent with this opinion, including reconsidering Miranda's sentence in light of section 12022.53, subdivision (h).

FACTUAL BACKGROUND

On May 23, 2016, around 7:30 or 8:00 p.m., Jill Haberbush and her boyfriend, Christian Morales, drove in her car to Lytle Creek Park to smoke some marijuana. Morales drove while Haberbush sat in the passenger seat. They parked the car at the park and began arguing. Haberbush noticed another car, which looked like an old Honda, pull up on her side of the car. After about a minute, the car pulled out and drove to the driver's side of her car. The driver's seat window in her car was down about four or five inches, and a man in the backseat of the other car tried to get Morales's attention. The man asked Morales if he had drugs to sell. Morales responded in the negative. Haberbush saw two women in the front of the Honda. She described the driver as a 19-to 20-year-old Hispanic woman with black eyeliner and black hair halfway to her chest. She said the passenger was a Hispanic woman who was "bigger built," about 150 to 160 pounds, and had curly hair past her chest. The passenger was wearing a striped shirt.

The man exited the Honda and opened Morales's door. Haberbush described the man in the car as Hispanic, about 19 to 23 years old, and 5 feet 5 inches tall to 5 feet 6 inches, and "skinnier built." He was wearing a black hoodie with a zipper and his head was covered by a hoodie or a beanie. The man punched Morales in the face three or four times. Then he pulled out a handgun, held it to Morales's face, and told Morales and Haberbush to give him everything they had, including Haberbush's cellphone. He racked the slide of his gun, and Haberbush heard a clicking sound. The driver of the Honda told the female in the passenger seat to beat up Haberbush. However, Haberbush's door was locked, so the woman was not able to get in the car.

Haberbush told Morales to give the man everything. Morales reached down and grabbed a "drawstring sports bag" that was resting on the floor by Haberbush's feet. Morales took a "blue birthday bag" out of the drawstring bag and gave it to the man. Haberbush did not know what was inside the "birthday bag." Haberbush did not hand over her cellphone. The man told Morales to take the keys out of the ignition and put them in his lap. Morales complied, and the man got into the back of the Honda, which immediately drove away.

Haberbush stated that the "blue birthday bag" was like a gift bag.

As soon as the Honda left, Morales told Haberbush to call 911 and started to follow the Honda so they could get the car's license plate number. When both cars turned a corner, Haberbush's car got close enough to the Honda that Haberbush could read the license plate number to the 911 operator. The cars collided with each other when, after turning onto a dead end street, the Honda pulled into a driveway and then reversed. The front passenger side of Haberbush's car hit the Honda.

Haberbush was not wearing a seatbelt and hit her head on the dashboard. Morales hit the steering wheel, and he appeared to be "dazed." Haberbush had dropped her phone during the collision and began looking for it. The man in the Honda got out of the backseat, went to Haberbush's side of the car, and started punching the window, trying to break it. Then he went over to Morales's window and the glass broke. Haberbush did not know how the glass was shattered. Morales then turned to her, coughing up blood. The man got back into the Honda, and the Honda left.

When officers arrived at the scene, Morales had a faint pulse and was transported to the hospital. However, Morales died from a gunshot wound to the chest, which injured both lungs and his aorta. Morales had multiple gunshot wounds and lacerations on his nose and his lip.

Using the license plate number of the Honda, police learned that the car was registered to Monique Carvajal. The Honda was found the following day in the parking lot of an apartment complex. Carvajal was arrested on May 26 and was interviewed at the police station. During the interview, Carvajal identified Mariah Jimenez as the passenger in her car and Miranda as the man in the rear of the car.

Carvajal testified at trial after entering into an immunity agreement. She stated that on May 23, 2016, she drove to Lytle Creek Park with her friend, Jimenez, and Jimenez's boyfriend, Miranda, to buy marijuana. She pulled up to the passenger side of a car that was parked and had smoke coming out of the open windows. Miranda told her to pull up to the driver's side instead.

Once Carvajal moved her car to the driver's side of the parked car, Miranda asked the male driver whether he had a "20" he wanted to get rid of. The man replied, "I only smoke that top shit. I don't know if I want to get rid of a 20 of that." Miranda asked the man if he was sure, and the man said, "Let me check," and turned his body like he was grabbing something. Then Miranda exited the car, opened the other car's driver door, and said, "Give me the weed." He punched the man and then Jimenez got out of the car. Jimenez walked toward the passenger side of the other car and then returned quickly.

Miranda came back to the car as well with a bag in his hand. Carvajal did not see Miranda with a gun. When everyone was back in her car, Miranda told Carvajal to leave. Carvajal drove away.

As Carvajal was driving away from the park, she noticed that the other car was following. When she turned onto a dead end street, she pulled into a driveway to turn around, and the cars collided. Her door was stuck closed; therefore, she and Jimenez exited the car through the passenger door. Miranda also got out of the car. While she was inspecting the damage to her car, she saw Miranda walk over to the passenger side of the other car and then she heard two to three gunshots. Miranda and Jimenez were running back to the car; so, Carvajal ran back into the car as well.

While Miranda was running back, Carvajal saw what looked like part of the barrel of a gun. She asked Miranda if he had shot the man, and his response was "Go." She drove the car back to Jimenez's apartment and parked it in the parking lot.

When they arrived at Jimenez's apartment, Miranda brought in the bag he took from the man. The bag just contained papers. Carvajal never saw the gun again after leaving the traffic collision.

Carvajal left her car in the parking lot of Jimenez's apartment complex. Miranda suggested that she tell the police her car was stolen.

On May 24, Carvajal's sister, Maria, contacted her. Carvajal told Maria that she was on her way home when she was hit by a car coming off the freeway. Later, Maria confronted Carvajal and told her to stop lying. Carvajal then told her sister the truth about what had happened.

Maria testified at trial and confirmed that initially Carvajal told her that her car had been stolen and subsequently claimed that she had been in a car accident. On May 25, when Maria insisted that Carvajal tell her the truth, Carvajal said that she had been to the park with Jimenez and Miranda. Carvajal explained that Miranda had tried to rob somebody and that the man who was robbed started chasing them and crashed into her car. Then Miranda got out of the car and shot the man. Carvajal told her sister that she did not know Miranda had a gun that night and after the robbery, the situation just escalated.

After speaking with Carvajal, Detective Brian Lewis served a search warrant at Jimenez's residence and arrested Jimenez and Miranda. The police seized Jimenez's cellphone, which contained a photograph of Jimenez with Miranda and a photograph of Miranda wearing a black hooded sweatshirt.

In addition to Miranda, Carvajal and Jimenez originally were charged with murder, second degree robbery of Morales, and second degree robbery of Haberbush. At the preliminary hearing, the court found insufficient evidence to hold Carvajal or Jimenez for the charged crimes. The prosecution therefore proceeded against Miranda only.

After arresting Miranda and reading him his rights, Lewis interviewed him. Miranda denied shooting anyone and claimed that on the night of the murder he was at his grandfather's house, helping to make appointments for his brothers. He also stated that he is always with Jimenez: "Me and my girlfriend, we've always been by our sides. We never let each other out of our sight." After Lewis implied that Jimenez had told the police that Miranda shot Morales, Miranda responded, "I know she didn't say I shot nobody. She knows I didn't shoot nobody." Later, Miranda added "she's with me 24/7[.]" Lewis persisted in his questioning of Miranda, representing that a witness saw him shoot Morales. Miranda steadfastly denied he shot anybody:

A video of Lewis's interview of Miranda was played for the jury.

"I know I didn't hurt nobody. Nothing happened between me or my girl with anybody else, because we're always at home. We're always doing our own thing. Other than that, sir, I got nothing to say to you. I didn't hurt nobody. I didn't kill nobody. I didn't murder nobody for damned sure. And I know my girl ain't capable of doing nothing like that."


Robert Facio, Sr., a neighbor who saw the shooting take place across the street, described the shooter as 5 feet 10 inches tall, thin in build, wearing a dark colored shirt, and having a dark complexion. Facio's son, who also saw the man across the street, thought the man was African-American.

Shortly after interviewing Miranda, Lewis talked to Miranda's grandfather, Acensio Gonzalez. Gonzalez said that Miranda had been staying with his girlfriend, Jimenez, for the last month, but that he would come and go from his house quite a bit to shower and eat. When Lewis asked Gonzalez if Miranda had been to his house on May 23, Gonzalez said, "No." Lewis asked him more specifically about the period between 8:00 p.m. and 9:00 p.m., and Gonzalez said that he knew Miranda was not there because he and his grandson Matthew were watching WWE (World Wrestling Entertainment) and Miranda was not there while they were watching.

At trial, Gonzalez testified that Miranda came by his house twice on May 23. The first time, he stayed about 45 minutes. The second time Gonzalez saw Miranda around 7:15 or 7:30 p.m., and Miranda visited for about 30 to 45 minutes. Gonzalez admitted that he previously told an officer that he had not seen Miranda while watching wrestling. At trial, Gonzalez said that Miranda's younger brother Matthew had reminded him that Miranda had come over during wrestling.

The police found two live .40 caliber semiautomatic cartridge casings in the parking lot of Lytle Creek Park near where Haberbush's car was parked. When a semiautomatic weapon is loaded with a magazine of live ammunition, if the weapon is racked, it will expend a live cartridge casing. There were two live rounds of ammunition and one expended shell at the location of the collision.

Among other forensic evidence, Jimenez's fingerprints were found on the Honda's driver's side front hood, side rear trunk, and passenger side rear room support. No prints in the Honda matched Carvajal or Miranda.

Haberbush was unable to identify Carvajal, Jimenez, or Miranda in photo lineups.

DISCUSSION

I

MOTION FOR NEW TRIAL

A. Miranda's Contentions

Miranda argues that the trial court erred in denying his motion for a new trial, which asserted that the prosecution committed Brady error by failing to disclose a video recording of statements Jimenez made to Detective Albert Tello as well as Tello's report regarding those statements.

B. Background

During the preliminary hearing on June 28, 2016, Detective Lewis testified that Jimenez had been interviewed by another detective and she made a brief statement before invoking her Fifth Amendment rights. Lewis stated that he did not read any statement by Jimenez.

On October 20, 2016, three weeks after the jury returned its verdicts, the prosecutor provided to defense counsel a report by Detective Tello summarizing the statement given by Jimenez on May 26, 2016. Although the report was dated September 9, 2016, the prosecutor did not receive the report until after trial. In early November, a video recording of Jimenez's interview was also provided to the defense.

As shown on the video, during the interview, Tello explained to Jimenez that he was investigating a shooting and murder that took place at Lytle Creek Park on Monday, May 23, 2016. Jimenez claimed that she was at home with her children on the night of the murder. She said that she had known Miranda for seven years and they had just made their relationship "official" that month. She also confirmed that she was pregnant. She said she knew Carvajal for about four years and was last in Carvajal's car on the Saturday or Sunday before the murder when Carvajal took Miranda and her to Walmart.

Detective Tello told Jimenez that Carvajal had "spilled the beans," and he knew that Miranda and Jimenez were there. Tello said, "[T]his is on Frankie," and told Jimenez that it was her turn to tell her story. Jimenez reiterated that she was not there, and 16 minutes into the interview, asked for an attorney.

Defense counsel filed a motion for new trial on several grounds, including that the prosecution's failure to disclose Tello's report and the failure to produce the video recording violated Brady. Defense counsel argued that had the defense known Jimenez had provided a statement that directly contradicted Carvajal's account, the defense would have called Jimenez as a witness to impeach the testimony of Carvajal.

The court held a hearing on the motion for new trial, at which Detectives Lewis and Tello testified. The court denied the motion, finding that Miranda would not have had any chance for a better outcome if the statement and recording had been turned over. The court explained its ruling in detail:

"So the question for me is whether or not it would have made any difference in the context of this case, and under the law, whether there -- whether there's a reasonable probability or likelihood of a different result, that that would be great enough to undermine confidence in the outcome of the trial.
"A few observations that I have. First and foremost, we really don't know what Mariah Jimenez would say if called as a witness. We don't know what she would have said if called as a witness in front of the jury. I was surprised quite frankly when I offered an evidentiary hearing, I thought it was appropriate, I'm surprised that no one brought her here. It's not my place to tell the lawyers how to prosecute or litigate their case, but she's not here. She didn't testify. We have Hal Smith's declaration as her lawyer that says she would have asserted the 5th Amendment. Now, that's the state of the evidence for this hearing, but the state of the law is the anticipated assertion of a 5th Amendment right to remain silent means nothing. The witness must be called and must take the fifth. That didn't happen in this case. [¶] . . . [¶]
"Anyway, I don't know why she wasn't subpoenaed. If you assume that the witness would assert the Fifth Amendment, I think it's a fairly safe conclusion that the jury would not have heard her statement. I know there's some discussion of that in the defense moving papers. If she asserts the 5th Amendment, the statements become hearsay and would not be admissible in the trial.
"I did want to look at the recording because at 8:38 and 18 seconds on the recording, just before Mariah Jimenez asked for a[n] attorney, the officer asked her, or states to her, 'I know you were there.' There's a pause. And she gives a positive affirmative shake of the head and says, 'Okay.' This could be interpreted as an agreement with the officer. In other words, an admission on her part that she was present at the scene of the murder. It's immediately following this, that she asks for a lawyer.
"Additionally, a fair reading of the defendant's statement which was provided to the jury, and the statement of Mariah Jimenez is that the two of them were together at the time of the murder. Looking at the totality, that's the only conclusion that you can come to. Mariah Jimenez, in part of the tape, says that they were at home. Defendant's nod was clear. Certainly in front of the jury, we had a

different location presented with the grandfather who quite frankly was not believable. The jury rejected that.
"The point is that based on the state of this evidence, the defense knew of Mariah Jimenez' whereabouts at the time of the murder. The defense team includes the defendant, that information was known and available and as such, the failure to turn over the recorded statement in a timely manner in the view of this Court did not prejudice the defense in any way. The defense was already in possession of whatever information there was. [¶] [Interruption by defense counsel and brief exchange with the court.] [¶]
"Another point, there is no due process right to put a witness on the stand so that they wouldn't perjur[e] themselves. If Mariah Jimenez were called as a witness and if she stated that she was at home at the time of the murder, it is not a stretch on this record to say that she would have been committing perjury by providing such testimony.
"As such, the Court finds that the failure to turn over Mariah Jimenez' statement and the recording is not a basis to grant the motion. The Court does not believe the defendant would have had any chance for a better outcome had that statement been turned over. There is no likelihood of a different result if the statement had been turned over. [¶] The motion is respectfully denied."



C. Analysis

"On appeal, a trial court's ruling on a motion for new trial is reviewed under a deferential abuse of discretion standard. [Citation.] Its ruling will not be disturbed unless defendant establishes 'a "manifest and unmistakable abuse of discretion." ' [Citations.] Here, the asserted abuse of discretion is the asserted failure of the trial court to recognize violations of defendant's constitutional rights. Our constitutional analysis below therefore also addresses the abuse of discretion issue." (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27 (Hoyos).) We apply a de novo standard of review to the issue of whether the defendant established the elements of a Brady claim. (People v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar).)

"In Brady, the United States Supreme Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' [Citation.] The high court has extended the prosecutor's duty to encompass the disclosure of material evidence, even if the defense made no request concerning the evidence. [Citation.] The duty encompasses impeachment evidence as well as exculpatory evidence." (Hoyos, supra, 41 Cal.4th at p. 917.) " 'There are three components of a true Brady violation: [(1)] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the State, either willfully or inadvertently; and [(3)] prejudice must have ensued.' " (Salazar, supra, 35 Cal.4th at p. 1043.) "Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt or innocence.' " (Ibid.) To establish materiality a "defendant . . . 'must show a "reasonable probability of a different result" ' " had the prosecution disclosed the evidence. (Ibid.) " 'A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' " (Hoyos, supra, at p. 918.)

The People do not challenge that Miranda has established the first two elements of a Brady violation. However, they assert that Miranda has not satisfied the requirements of the third element because Tello's written report and the video of his interview with Jimenez are not material. We agree.

As we have discussed, the third element that must be established for a Brady violation is that, by failing to turn over the evidence at issue, the prosecution caused the defendant to suffer prejudice. (Salazar, supra, 35 Cal.4th at p. 1043.) This element has been described as a requirement "that the suppressed evidence be material, 'for not every nondisclosure of favorable evidence denies due process.' " (Id. at p. 1049.) For the purposes of a Brady analysis, "[e]vidence is 'material' 'only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different.' [Citations.] The requisite 'reasonable probability' is a probability sufficient to 'undermine[ ] confidence in the outcome' on the part of the reviewing court. [Citations.] It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract." (In re Sassounian (1995) 9 Cal.4th 535, 544.)

Miranda contends Jimenez's statement to Tello and the video recording of her statement would have assisted his defense because it would serve as impeachment evidence of Carvajal. To this end, Miranda notes that Jimenez told Tello that she was home with her children on the night of May 23. Miranda also emphasizes that Jimenez denied any involvement in the shooting. Miranda argues that Jimenez's statement directly contradicts Carvajal's testimony identifying Jimenez and Miranda as the two individuals that were with her when the victim was shot.

In addition, Miranda insists the undisclosed evidence was exculpatory. Jimenez told Tello that she had known Miranda for seven years. Miranda claims such a statement would have aided his defense because the jury could have believed the photographs of Miranda found on Jimenez's cell phone could have been taken months or even years earlier. Miranda further maintains that Jimenez's statement that Miranda and she had been in Carvajal's car on May 21 or 22, would explain the presence of Jimenez's fingerprints in Carvajal's car.

Finally, Miranda asserts had he known about Jimenez's statement to the police, he could have called her as a witness at trial "with the protection of being able to call Detective Tello as a witness should her testimony stray from her statement."

In evaluating Miranda's arguments, it is important that we consider the unique circumstances involved in the issue before us. Miranda asserts that had he known of Jimenez's statement to Tello, he would have called her as a witness at trial. Such an argument implies that Miranda did not know what Jimenez would say about his involvement in the shooting of Morales. Specifically, Miranda appears to maintain that he did not know where Jimenez was on the night of May 23. Had he known she was home with her children on that date and had told Tello as much, he would have called her as a witness.

However, we struggle to square this argument with the evidence produced at trial. Jimenez was not some third party witness with information unknown to Miranda that would have helped in his defense. Rather, Miranda and Jimenez were in a romantic relationship, and, at the time she talked to Tello, Jimenez was one month pregnant with Miranda's baby. Further, Miranda's own words underscored how close the couple was. Miranda told Lewis that he never let Jimenez out of his sight, and they were with each other "24/7." In addition, he said that Jimenez would never tell the police that he shot someone, and Jimenez knew he did not shoot anyone." Miranda's relationship with Jimenez coupled with his statements to Lewis that he was always with Jimenez and she knew he did not shoot anyone begs the question why Miranda did not call Jimenez as a witness at trial regardless of whether he knew that she told Tello she was at home on the night of May 23.

Perhaps the answer lies in the fact that Jimenez had been arrested and charged for murder and robbery, along with Miranda. Relating to Miranda's motion for a new trial, Jimenez's counsel submitted a declaration stating that he advised Jimenez not to talk to anyone about her case without his knowledge or approval or out of his presence for fear the district attorney could refile murder charges against her. No party objected to the declaration. The trial court read Jimenez's counsel's declaration as a representation that Jimenez would have taken the Fifth Amendment if called to testify. No party challenged the court's conclusion at the hearing. Nor does any party argue differently here.

Although we are left with little in the record from which we could discern the substance of Jimenez's trial testimony, it appears from what is in the record, including what was presented to the trial court regarding Miranda's motion for a new trial, that Jimenez would not have testified at trial. Instead, the record strongly suggests she would have invoked her Fifth Amendment right not to testify. Therefore, for Jimenez's statement to Tello and/or Tello's report about Jimenez's statement to be beneficial to Miranda's defense at trial, either piece of evidence would have to have been admitted at trial. However, he has offered no basis for their admission.

In his opening brief, Miranda asserts that even if Jimenez had invoked her Fifth Amendment right to testify, her statements to Tello would have been admissible under Evidence Code section 240 because Jimenez would have been an "unavailable" witness. Evidence Code section 240 is of no help to Miranda. That section merely identifies under what circumstances a declarant may be deemed unavailable. It provides no avenue by which to admit an unavailable witness's out-of-court statements.

Here, Jimenez's statements to Tello are textbook hearsay. Miranda would offer Jimenez's out-of-court statements for the truth of the matter asserted (namely, she was at home with her children at the time of the murder). (See Evid. Code, § 1200, subd. (a).) Unless an exception applies, such hearsay evidence is inadmissible at trial. (Evid. Code, § 1200, subd. (b).) Miranda has offered no exception to the hearsay rule that would make Jimenez's statements to Tello admissible. Thus, he has not shown how such statements would have been beneficial to him had they been disclosed before trial.

In addition, Miranda overstates the exculpatory nature of Jimenez's statements. For example, Miranda points out that had the jury heard Jimenez's statement that she had been friends with Miranda for seven years, it would have confirmed for the jury that the photographs on Jimenez's phone of Miranda wearing a black hoodie could have been taken months or years earlier. However, Jimenez's statement was not necessary or particularly helpful establishing the time at which the photographs were taken. The fact that Jimenez had known Miranda for seven years would not have established when the photographs were taken. That statement does not establish when Jimenez purchased the cell phone on which the photographs were stored. At trial, the prosecution never suggested that Miranda and Jimenez had only recently met each other. Moreover, Miranda's trial counsel argued, based on the photographs themselves, that they were taken before May 23. To this end, during closing argument, defense counsel asserted:

"[W]hen you look at these photos -- and if you look at them closely, you can tell in these photos, Mr. Miranda is significantly younger than he appears right now. If you look at the photo that was taken of him on May 26th, significantly younger, significantly thinner, his hair shorter. The pictures they took of him on May 26th, his hair is longer kind of hanging around. [¶] And then you look at this, this is a much younger, thinner person. These photos are clearly old. They were not taken anywhere near in time."

Also, Miranda's trial counsel further challenged the importance of the photographs by emphasizing that the hoodies Miranda wore in the photographs were pullovers whereas Haberbush described the shooter as wearing a hoody with a zipper.

And Jimenez's statement to Tello that she had been in Carvajal's car on the weekend before the murder was not necessary to explain the presence of Jimenez's fingerprints in Carvajal's car. Carvajal testified that Jimenez had been in her car over 10 times before May 23.

Beyond the minimal exculpatory value of the withheld evidence, we agree with the trial court's characterization of the evidence that it could have been harmful to Miranda. In the video, when Tello said, "Now I know that it's on Frankie [Miranda], but I know you were there[,]" Jimenez appears to nod affirmatively before saying, "O.K." Then Tello asked her if she wanted to talk about it, and Jimenez asked for an attorney.

In summary, Miranda has not shown that the undisclosed evidence was material. In other words, he has not demonstrated there is a reasonable probability that had Jimenez's statements to Tello been disclosed to the defense, the result at trial would have been different. (In re Sassounian, supra, 9 Cal.4th at p. 544.) Based on the record before us, our confidence in the outcome of Miranda's trial has not been undermined by the prosecution's failure to provide Jimenez's statements to Tello to the defense before trial. As such, we conclude the trial court was within its discretion to deny the motion for new trial.

II

SUBSTANTIAL EVIDENCE

A. Miranda's Contention

Miranda contends substantial evidence does not support his conviction under count 3 for robbery as to Haberbush. He maintains that the only item taken during the robbery was a bag that belonged to Morales. Haberbush had no knowledge of the contents of the bag and did not know how or where Morales obtained it. As such, Miranda asserts there is no evidence that he took any of Haberbush's possessions, against her will, by force or fear. The People argue that Haberbush had constructive possession of the bag. Miranda has the better argument.

B. Standard of Review

We apply a substantial evidence standard of review to assess the sufficiency of the evidence. We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.)

C. Analysis

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.) To prove robbery, the prosecution must establish the defendant took property from the victim "by means of force or fear with the specific intent to permanently deprive him of that property." (People v. Young (2005) 34 Cal.4th 1149, 1176-1177.) However, "[a] robbery cannot be committed against a person who is not in possession of the property taken or retained." (People v. McKinnon (2011) 52 Cal.4th 610, 687.) Yet, the victim does not have to be the owner of the property (People v. Estes (1983) 147 Cal.App.3d 23, 26) and physical possession is not required to establish the element of possession (McKinnon, supra, at p. 687). Indeed, possession may be actual or constructive. (Ibid.; People v. Nguyen (2000) 24 Cal.4th 756, 764.)

A person who has the right to control property has constructive possession of it. (People v. Scott (2009) 45 Cal.4th 743, 750.) "For constructive possession, courts have required that the alleged victim had authority or responsibility to protect the stolen property on behalf of the owner." (Ibid.) Constructive possession is often recognized where the robbery involves business property taken from the business in the presence of an employee or an agent of that business. (See People v. Miller (1977) 18 Cal.3d 873, 880 [store security guard]; People v. Estes, supra, 147 Cal.App.3d at p. 27 [security guard]; People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523 [janitors employed by business's cleaning company]; People v. Poindexter (1967) 255 Cal.App.2d 566, 568-569 [barmaid]; People v. Downs (1952) 114 Cal.App.2d 758, 765 [janitors].) Even a visitor to a store who was forced to remove and surrender money from the store's cash box has been held to be a robbery victim. (People v. Moore (1970) 4 Cal.App.3d 668, 670-671.)

"In addition, 'persons other than employees may be robbery victims if they have a " 'special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner." [Citation.] Formulated another way, the question is whether the prospective victim "may be expected to resist the taking." ' " (People v. McKinnon, supra, 52 Cal.4th 610, 687.) Accordingly, courts have recognized the necessary special relationship for robbery in nonbusiness contexts. (See, e.g., People v. Bekele (1995) 33 Cal.App.4th 1457, 1462 [coworker who the owner asked to help stop the theft of owner's property]; People v. DeFrance (2008) 167 Cal.App.4th 486, 499 [the car owner's mother who had helped her son buy the car, had access to the car's keys, had driven the car, and was named on the insurance policy]; People v. Gordon (1982) 136 Cal.App.3d 519, 528-529 (Gordon) [parents].)

Here, the robbery count related to Haberbush. The only item taken by Miranda was the "birthday bag" that Morales removed from his draw string sports bag. The draw string bag was on the floorboard of the passenger side of Haberbush's car and was at Haberbush's feet. Nevertheless, there is no evidence in the record that Haberbush was aware of the existence of the birthday bag before Morales gave it to Miranda. Nor did Miranda know where Morales obtained the bag or what was in it.

The People argue Haberbush had constructive possession of the birthday bag. The People point out that Haberbush and Morales had a "special relationship" because they were dating. Considering their relationship as well as the fact the birthday bag was in Haberbush's car at her feet, the People maintain that Haberbush had the authority and the responsibility to protect Morales's property. To this end, they contend the instant matter is analogous to Gordon, supra, 136 Cal.App.3d 519.

In Gordon, two armed robbers entered the home of Joseph and Mary Lopes, bound them and took $1,000, marijuana and a shoulder bag belonging to their adult son, who lived with them but was not at home at the time of the robbery. The Lopeses denied knowledge of the marijuana and were not asked whether they know about the $1,000 or the shoulder bag. (Gordon, supra, 136 Cal.App.3d at p. 529.) The court found the evidence that the Lopeses owned and lived in the residence sufficient to support the jury's findings that they possessed their son's property within the meaning of the robbery statute. It reasoned that the jury could properly conclude from such facts that the Lopeses were responsible for protecting personal property belonging to their son who lived in their home. (Id. at pp. 528-529.)

We do not find Gordon, supra, 136 Cal.App.3d 519 instructive here. Haberbush was not Morales's parent, and a car is not the same as a house. In other words, we do not find Haberbush is like the parents in Gordon who the appellate court deemed were responsible for protecting the personal property of their son who lived in their house. There was no evidence establishing that Morales often kept his belongings in Haberbush's car, Haberbush asked or permitted Morales to keep his belongings in her car, or Morales expected Haberbush to protect his property that he left in her car. Indeed, the evidence established that Haberbush was unaware of the existence of the birthday bag and did not know that it was in her car. Although we do not adopt a bright line rule that a girlfriend or boyfriend cannot satisfy the special relationship requirement of constructive possession, the facts of the instant matter do not warrant an extension of the law of constructive possession to include Haberbush. The evidence does not support the inference that Haberbush had the authority or responsibility to protect the stolen property on behalf of Morales, which was the "birthday bag." The record was not developed on this point. As such, we conclude substantial evidence does not support Miranda's conviction under count 3.

Because we reverse Miranda's conviction under count 3, it logically follows that any allegations related to count 3 must be stricken.

III

THE FIREARM ENHANCEMENT

Section 12022.53, subdivision (a)(17), provides certain penalties for the use of a firearm during enumerated crimes, including any crime punishable by life imprisonment. Miranda was convicted of first degree murder, a crime punishable by imprisonment in state prison for life. (§§ 187, subd. (a), 190, subd. (a).) Any person who "personally and intentionally discharges a firearm and proximately causes great bodily injury, . . . or death, to any person other than an accomplice" in the commission of one of the enumerated crimes, "shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (§ 12022.53, subd. (d).) Here, as to Miranda, the court added the 25-years-to-life enhancement under subdivision (d) of section 12022.53 for count 1.

While this matter was pending, Miranda's motion to file a supplemental brief to address the impact of Senate Bill No. 620, which became effective January 1, 2018, was granted. Under Senate Bill No. 620, trial courts have discretion to strike firearm enhancements brought under sections 12022.5 and 12022.53. (See §§ 12022.5, subd. (c), 12022.53, subd. (h).) Miranda points out that these subdivisions were not effective at the time he was sentenced; therefore, the trial court did not have discretion to strike Miranda's firearm enhancement under section 12022.53, subdivision (d). He asserts Senate Bill No. 620 should be applied retroactively, and as such, we should remand this matter to allow the superior court to consider striking his firearm enhancement.

In their supplemental brief, the People concede People v. Francis (1969) 71 Cal.2d 66 (Francis) is controlling and requires retroactive application of amended section 12022.53, subdivision (h) to all nonfinal judgments.

In Francis, supra, 71 Cal.2d 66, the defendant was charged with selling and giving away marijuana. (Id. at pp. 69-70.) The matter was tried to the court and submitted on the preliminary examination transcript. (Id. at p. 70.) The court found defendant guilty of possession of marijuana as a lesser included offense. (Ibid.) At the time of the defendant's sentencing in Francis, possession of marijuana was punishable by a term of one to 10 years in prison. The court also had the authority to grant the defendant probation and require him to serve time in the county jail as a condition of probation. (Id. at p. 75.) The trial court sentenced the defendant to state prison. (Id. at p. 70.) After his conviction, but prior to the conclusion of his appeal, the Legislature amended the Health and Safety Code, authorizing a trial court to reduce a conviction for possession of marijuana to a misdemeanor, punishable by a term in county jail. (Francis, supra, at p. 75.)

The appellate court held the amendment should be given retroactive effect pursuant to In re Estrada (1965) 63 Cal.2d 740. (Francis, supra, 71 Cal.2d at pp. 75-76.) In arguing against remand, the People noted the trial court rejected the idea of placing the defendant on probation and to impose county jail time as a condition of probation. (Id. at p. 76.) In rejecting that contention, the appellate court stated, "[T]he mere fact that the Legislature changed the offense from a felony to a felony-misdemeanor conceivably might cause a trial court to impose a county jail term or grant probation in a case where before the amendment the court denied probation to a defendant eligible therefor and sentenced the defendant to prison." (Id. at p. 77.)

The People concede, and we agree, the same reasoning applies in the instant case. Because amended section 12022.53, subdivision (h) is a new law that grants a trial court discretion to mitigate punishment and Lewis's punishment is not yet final, we follow Francis, supra, 71 Cal.2d 66, and remand this matter to the superior court to consider whether Miranda's firearm enhancement should be stricken under amended section 12022.53, subdivision (h).

The People contend Francis, supra, 71 Cal.2d 66 might be at odds with People v. Conley (2016) 63 Cal.4th 646. Nevertheless, they concede Francis has not been overturned. Moreover, our high court recently cited Francis with approval. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308-311.) As such, until or unless our high court overrules Francis, we are required to follow that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) --------

DISPOSITION

Miranda's conviction under count 3 is reversed. We order the superior court to dismiss count 3 and strike all enhancements related to that count. We otherwise affirm the judgment. We remand this matter back to the superior court for resentencing consistent with this opinion, including exercising its discretion under section 12022.53, subdivision (h).

The superior court is to prepare the necessary amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. AARON, J.