THE PEOPLE, Plaintiff and Respondent, v. NIRRAN WELLS, et al., Defendants and Appellants.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
It is ordered that the opinion filed herein on December 28, 2016, be modified as follows:
On page 23, second full paragraph beginning with “For the first time on reply” is deleted and the following paragraph is inserted in its place:
Flie's inability to demonstrate prejudice likewise dooms his undeveloped assertion that defense counsel provided ineffective assistance by failing to object to the prosecutor's nondisclosure. (Strickland v. Washington (1984) 466 U.S. 668, 694 [to establish ineffective assistance, “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”]; People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4 [“the Watson standard (People v. Watson [ (1986) ] 46 Cal.2d 818) is substantially the same as the prejudice prong of Strickland”].)
There is no change in the judgment. The petition for rehearing is denied.
A jury convicted defendants Donzell Flie, Dawan McNair, and Nirran Wells of various offenses arising out of the armed robbery of a check cashing store, during which an employee was shot. The jury also found true allegations that Flie personally and intentionally discharged a firearm and that McNair and Wells personally used handguns during the commission of the offenses.
On appeal, each defendant raises or joins in numerous claims of error. We find their claims to be meritless and affirm all three judgments of conviction.1
A. Defendants Are Charged
The Santa Clara County District Attorney filed an amended information on October 10, 2012 charging defendants and two other individuals, Dennis Montgomery and Dynell Morgan, with kidnapping for robbery (count 1; Pen. Code § 209, subd. (b)(1)2 ) and two counts of robbery (counts 2 and 3; § 211). With respect to each count, it was alleged that Flie personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c)) and that Wells and McNair personally used a handgun (§ 12022.53, subd. (b)). The amended information also alleged that Flie had a prior juvenile adjudication that qualified as a strike (§§ 1170.12, 667, subds. (b)-(i)). It was further alleged that McNair had served two prior prison terms (§ 667.5, subd. (b)) and that Wells had suffered three prior convictions, each of which qualified as a strike (§§ 1170.12, subds.(a)-(d), 667, subd. (b)) and as a serious felony (§ 667, subd. (a)).
B. Evidence Adduced at Trial
The case against Flie, McNair, and Wells proceeded to trial. The following evidence was adduced during six days of testimony in December 2012 and January 2013.
1. The Robbery
a. Glass's Testimony
On August 10, 2010, Ryan Glass and manager Coriolana Devine were working at a Check 'n Go in San Jose. A counter, with a partition to one side, divided the customer side of the store from the employee side of the store. Glass and Devine each had a station behind the counter with a cash drawer containing $1,500 to $2,000.
Business was slow that morning, so Glass took a break outside the store at about 11:15 or 11:30 a.m. He testified that he was not required to clock in and out for breaks. If it was slow, he was permitted to take a break as long as he reentered the store if a customer walked in. Glass sat on a bench outside a taqueria located next door to the Check ‘n Go. He saw four black men sitting at a table inside the taqueria. Glass recalled seeing one or two of the men walk back and forth in front of the Check ‘n Go earlier that morning.
One of the men, whom Glass identified in court as Wells, exited the taqueria and walked into the Check ‘n Go. Five to 10 seconds later, a second of the men walked into the Check ‘n Go. Glass identified the second man as Flie. Glass followed Flie into the store because Devine would need his help with two customers. Immediately upon entering the store, Glass saw that Flie had a gun pointed in his direction so he turned and ran out of the store. Flie followed Glass and caught up to him about 25 feet outside the Check ‘n Go. Flie told Glass to “Get back in the store.” Glass obeyed. As he walked inside, Wells was walking out. According to Glass, McNair and the fourth man Glass had seen in the taqueria were inside. At Flie's direction, Glass got down on the floor. Flie put his foot on Glass's back. Twice, Glass heard Flie say, “Get the money, Blue.” Glass believed Flie was speaking to him because he was wearing a blue shirt, so Glass tried to get up. As he did so, he heard a loud bang and felt like he got hit in the head with something really hard. He continued to get up and walked behind the counter, where he lay down, bleeding.
Glass testified that he saw McNair behind the counter taking cash. Like Flie, McNair had a gun, as did a third robber, though Glass was not sure which one.
b. Devine's Testimony
Devine testified that she saw McNair, Wells, and two other men walk past the store about 15 minutes before the robbery. Wells entered the Check ‘n Go first and asked Devine “how you get one of these things,” apparently referring to a loan. He was wearing a red checkered shirt and holding a burrito. A second man entered about a minute later wearing red and a cap on his head. Glass followed the second individual into the store and immediately ran out. Devine testified that she heard the first of two gunshots when Glass ran outside. The second man to enter chased Glass and brought him back into the store at gunpoint. (Devine later testified that she was not sure who chased Glass out, but that it was the second man who brought him back into the store.)
Devine testified that she pushed a silent alarm when she heard a second gunshot. She believed Glass had been shot, although she could not see him or the shooter because her view was blocked by the partition. Wells—who, according to Devine, was armed with a gun—saw her push the alarm and informed the other men she had done so. A third individual, with “dreads” and wearing gray, then came around to Devine's side of the counter and took cash from her cash drawer at gunpoint. A fourth man took cash out of Glass's cash drawer, which Devine had put out on the counter.
Devine identified Flie in court as one of the men involved in the robbery; she testified that he was armed during the robbery, although she could not recall his role in the events. She testified, inaccurately, that he had dreadlocks at the time of the robbery. She later said the only faces she remembered clearly were those of Wells and McNair. Devine did not recall seeing McNair in the Check ‘n Go during the robbery; she remembered him walking past the store earlier.
When the men left the store, Devine closed and locked the door and called 9-1-1.
c. Surveillance Videos
Surveillance videos recorded by two cameras in the Check ‘n Go were admitted into evidence and played at trial.
The first video shows the front, customer-side of the store, from the perspective of an employee behind the counter. The lower part of the front door is visible at the top of the frame, and the back of a woman's head is visible at the bottom of the frame. The first video depicts a black man wearing a red checkered shirt entering the Check ‘n Go at 12:02:36 pm. He can be seen conversing briefly with the woman. At 12:02:56 p.m., a second black man enters the store. He is wearing a red sweatshirt and a hat. A third person, wearing khakis, enters at 12:03:01 p.m. The video shows the man in the red sweatshirt pull a gun out of his waistband, turn around, and point the gun at the individual in khakis, whose face is not visible. The person wearing khakis turns and runs out of the store, followed by the man in the red sweatshirt at 12:03:05 p.m. While the man in the red sweatshirt runs out of the store, the man in the red checkered shirt can be seen pulling a gun out of his waistband. He exits the frame. At 12:03:10 p.m., the video shows a third black man with long dreadlocks and a dark shirt enter the store. Immediately behind him are a white man in khakis and the man in the red sweatshirt. As those two enter, the man in the red checkered shirt exits the store. The video depicts the man in the red sweatshirt pointing a gun at the man in khakis, who crouches down and exits the frame, as does the man in the red sweatshirt. At 12:03:20 p.m., a fourth black man wearing a gray shirt enters the store. The man with dreadlocks, followed by the man in the gray shirt and the man in the red sweatshirt, exit the store at 12:03:38 p.m.
The second Check ‘n Go surveillance video shows the counter from the perspective of the store's front door. A woman is behind the counter at one of two stations; no one is at the other station. The man in the red checkered shirt first enters the frame at 12:02:38 p.m. The man in the red sweatshirt enters the frame at 12:02:59 p.m. The video depicts him pulling out a gun and pointing toward the bottom of the frame, where the door is located. He exits the frame. The man with dreadlocks enters the frame and can be seen standing at the customer side of the counter in front of the empty station. The woman can be seen placing a black tray on the counter; the video shows the man with dreadlocks taking cash out of the black tray. As he does so, the man in the gray shirt runs into the frame. The video depicts him coming around the counter so that he is standing next to the woman. He can be seen pointing a gun at her as she puts her hands up. He lowers the gun and his hands are no longer visible. As the man in gray exits the frame, a white man walks behind the counter and lies down, out of view.
2. Defendants are Apprehended
Kurt Duncan owned an auto care shop near the Check ‘n Go. At about 11:00 a.m. on August 10, 2010, he noticed a late model, champagne-colored Buick with squeaky brakes creeping through the parking lot near his business. He observed four black males inside the vehicle. He also saw the driver and front seat passenger exit the vehicle and return to it. Later, he saw the Buick backed into a parking spot. Only the driver was sitting in the car. In court, Duncan identified McNair as the driver and Flie as the front passenger.
Duncan saw police activity in the area later and asked an officer what was going on. He was told there had been a robbery and a shooting and police were looking for four black males. Duncan told police he thought he could identify the suspects' car, and he described the Buick.
Officers located a gold Buick with black male occupants on the freeway and followed it. Shortly after the Buick exited the freeway, officers turned on their lights and sirens. The Buick veered into a gas station and, as it came to a stop, all four doors opened and the occupants fled on foot. Officers apprehended five black male suspects: Flie, McNair, Wells, Montgomery, and Morgan. As noted above, Montgomery and Morgan were charged but not tried with defendants.
McNair was wearing a gray shirt, according to one of the officers who pursued him on foot and the officer who apprehended him. Police found $2,678 in cash concealed under McNair's pant leg. After being apprehended, McNair told an officer, “I'm the first to admit it. I did it.”
A police search of the Buick yielded four guns, including a revolver. Two rounds had been fired from the revolver.
3. Glass's Injuries
Glass suffered bullet wounds to the back left side of his head, the right side of his neck, and his right thumb and index finger. He was taken to the hospital where he stayed overnight.
A CT scan of Glass's head showed a bullet had travelled between the head and neck injuries. It also showed shrapnel throughout the wound. Glass's right thumb was fractured and there was shrapnel in his thumb and right index finger.
Glass testified that, at the time of trial, he continued to experience “intense flashes of pain, periodically,” in the area of the head wound. He called the pain “debilitating” and “disorienting.” Glass further testified that he can no longer fully bend or extend his injured thumb and that his injured finger remains numb.
The jury returned its verdicts on January 8, 2013 after deliberating for three days. Jurors found Flie guilty on all three counts and found true that he personally and intentionally discharged a firearm (§ 12022.53). McNair was found not guilty of kidnapping for robbery (count 1, § 209, subd. (b)(1), but guilty of the lesser included offense of false imprisonment (§§ 236/237) and guilty of two counts of robbery (counts 2 and 3, § 211). The jury found true that McNair personally used a handgun in the commission of the offenses (§§ 12022.53, subd. (b), 12022.5, subd. (a)). Jurors found Wells not guilty of kidnapping for robbery (count 1, § 209, subd. (b)(1), but convicted him of the lesser included offense of false imprisonment (§§ 236/237). Wells was found guilty of two counts of robbery (counts 2 and 3, § 211). With respect to all three offenses, the jury found true the allegation that Wells personally used a handgun (§§ 12022.53, subd. (b), 12022.5, subd. (a)).
The court found true the prior allegations for each defendant.
At a sentencing hearing on October 15, 2013, the court denied Flie's Romero 3 motion to strike his prior juvenile adjudication. The court then sentenced Flie as a second striker to a total unstayed term of 64 years to life consecutive to six years. On count 1, kidnapping for robbery, the court sentenced Flie to seven years to life, doubled under the Three Strikes law to 14 years to life, plus 25 years to life for the discharging a weapon enhancement (§ 12022.53, subd. (d)). On count 3, the court imposed the middle term of three years, doubled to six years under the Three Strikes law, plus 25 years to life for the discharging a weapon enhancement (§ 12022.53, subd. (d)). The court stayed punishment on count 2 pursuant to section 654.
On August 6, 2013, the court sentenced McNair to a total unstayed term of 19 years, four months in state prison. In sentencing McNair, the court imposed a term of 13 years on count 2, one of the robbery counts: the middle term of three years plus a consecutive term of 10 years for the arming enhancement (§ 12022.53, subd. (b)). On the remaining robbery count, the court imposed a consecutive term of four years, four months: one-third the midterm (one year) plus one-third the 10-year use of a firearm enhancement (three years, four months). The court stayed punishment on count 1 pursuant to section 654. Finally, the court imposed two consecutive one-year terms for McNair's two prior prison terms (§ 667.5, subd. (b)).
The court denied Wells's Romero motion on November 26, 2013 and sentenced him as a third striker under the Three Strikes law to a total unstayed term of 56 years to life consecutive to 50 years in state prison. The court imposed a term of 28 years to life consecutive to 25 years on count 2. It calculated the minimum term of the indeterminate life sentence as follows: a base term of three years for robbery plus a consecutive term of 10 years for the arming enhancement (§ 12022.53, subd. (b)), plus three consecutive five-year terms for Wells's prior serious felony convictions). (§§ 667, subd. (e)(2)(A)(iii), 1170.12, subd. (c)(2)(A)(iii); People v. Williams (2004) 34 Cal.4th 397, 403.) The consecutive 25-year term was imposed as a result of the 10-year arming enhancement (§ 12022.53, subd. (b)) and the three five-year prior serious felony conviction enhancements (§ 667, subd. (a)). The court imposed an identical, consecutive term for count 3. The court stayed punishment on count 1 pursuant to section 654.
Defendants timely appealed.
II.FLIE'S APPELLATE ARGUMENTS
A. Sufficient Evidence Supports Flie's Conviction for Kidnapping to Commit Robbery
Flie contends his conviction for kidnapping to commit robbery is unsupported by sufficient evidence. Specifically, he argues that his movement of Glass back into the Check ‘n Go was merely incidental to the robbery and did not increase the risk of harm to Glass. We disagree; substantial evidence supports the asportation element of aggravated kidnapping.
1. Legal Principles
Section 209, subdivision (b), proscribes kidnapping to commit robbery or certain sex offenses, often referred to as aggravated kidnapping. (People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20 (Vines).) The crime of aggravated kidnapping occurs “only ․ if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (§ 209, subd. (b)(2).)
In determining whether the movement was merely incidental to the commission of the crime, “the jury considers the ‘scope and nature’ of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong.” (Vines, supra, 51 Cal.4th at p. 870.) “A movement necessary to a robbery may or may not be merely incidental to it. Lack of necessity is a sufficient basis to conclude a movement is not merely incidental; necessity alone proves nothing.” (People v. James (2007) 148 Cal.App.4th 446, 455 (James).)
With respect to whether the movement increased the risk of harm to the victim, the jury considers “ ‘ “such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.” ’ ” (Vines, supra, 51 Cal.4th at p. 870.) “There is no rigid ‘indoor-outdoor’ rule by which moving a victim inside the premises in which he is found is never sufficient asportation for kidnapping for robbery while moving a victim from inside to outside (or the reverse) is always sufficient. [Citation.] Nonetheless, it has often been held that defendants who have moved their victims within the premises in which they were found did not increase the risk to the victims [citations], while defendants who moved their victims to more secluded or enclosed areas did substantially increase the risk [citations].” (James, supra, 148 Cal.App.4th at p. 456.)
Significantly, the two aspects of the asportation element of aggravated kidnapping—movement beyond that merely incidental to the commission of the crime and that increases the risk of harm to the victim—“are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim.” (People v. Martinez (1999) 20 Cal.4th 225, 236; People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez) [“whether the victim's forced movement was merely incidental to the [target crime] is necessarily connected to whether it substantially increased the risk to the victim”].)
2. Standard of Review
“When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) “In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (Ibid.)
Here, Flie moved Glass, at gunpoint, from outside into the Check ‘n Go, a distance of approximately 20 to 25 feet. Once inside, Flie forced Glass to lie on the ground and shot him when he tried to get up.
Flie argues the movement in this case is analogous to the movement of bank employees inside the bank to the vault in People v. Washington (2005) 127 Cal.App.4th 290, 299 (Washington). In Washington, the court concluded that the movement of two bank employees a distance of 15 feet within the bank did not support a conviction for aggravated kidnapping “because the movement occurred entirely within the premises of the bank and each victim moved the shortest distance between their original location and the vault room. Thus, there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault. Also, given that the cooperation of two bank employees was required to open the vault, the movement of both [victims] was necessary to complete the robbery.” (Id. at p. 299.)
Washington is distinguishable. There, the robbery victims were moved “entirely within the premises of the bank.” (Washington, supra, 127 Cal.App.4th at p. 299.) Here, Glass had escaped and was outside, in public view, when Flie forced him back into the store. Thus, unlike in Washington, the movement here “changed the victim's environment” in a way that “substantially decreas[ed] the possibility of detection, escape or rescue,” and thus “substantially increased [his] risk of harm.” (Dominguez, supra, 39 Cal.4th at pp. 1153-1154 [asportation requirement for aggravated kidnapping satisfied when defendant moved rape victim down an embankment and 25 feet away from the road].) In that regard, this case is analogous to People v. Hill (1971) 20 Cal.App.3d 1049 (Hill). There, the defendant moved two robbery victims from the parking lot into the supermarket he intended to rob. Once inside, he shot one of the victims in the chest. Like the victims in Hill, Glass was “in a relatively safe position” outside, whereas “the building into which [Flie] moved [Glass] protected [Flie] from the observation of passersby, and thus was an area of danger. There is no question that the movement involved [a] substantial increase in the risk of harm that might, and in fact did, come to [Glass],” as he was shot inside. (Id. at pp. 1052-1053.)
Moreover, unlike the victims in Washington, Glass's cooperation was not required to complete the robbery. Devine alone gave the robbers access to both cash drawers.
Flie also relies on People v. Hoard (2002) 103 Cal.App.4th 599, 607, in which the court held that the asportation element of kidnapping for robbery was not satisfied where a jewelry store robber moved two employees 50 feet to a back office. The court reasoned that the movement “served only to facilitate the crime” and “may have [put the victims] at less risk [because,] tied up in the back office[,] ․ they could not try to thwart the robbery” and they were not “at gunpoint ․” (Ibid.) By contrast, here, the movement clearly increased the risk to Glass.
Flie analyzes the two prongs of the asportation element in isolation, minimizing the interrelationship between the movement and the increased risk in the circumstances of this case. Analyzing the two prongs together, as our Supreme Court has instructed we must, we conclude that substantial evidence of asportation supports Flie's conviction of aggravated kidnapping.
B. Sufficient Evidence Supports Flie's Conviction for Robbery of Glass
“Robbery is defined in section 211 as ‘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.’ ” (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).) “A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property.” (Ibid.) Constructive possession is sufficient and exists where the alleged victim of a robbery has a “special relationship” with the property owner “such that the victim had authority or responsibility to protect the stolen property on behalf of the owner.” (Id. at p. 750.) For example, “employees have constructive possession of their employer's property when they are present during a robbery” (id. at p. 753) because, “by virtue of [their] employment relationship with the employer, [they have] some implied authority, when on duty, to act on the employer's behalf to protect the employer's property when it is threatened during a robbery.” (Id. at p. 754.)
Flie was convicted of robbery of Glass as charged in count 2. Flie maintains that there was insufficient evidence to support that conviction for two reasons: (i) the cash was not in Glass's immediate presence and (ii) the cash was not in Glass's possession because he was not “on duty” at the time of the robbery. Neither contention has merit.
“[S]omething is in a person's ‘immediate presence’ if it is ‘ “ ‘so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.’ ” ' [Citations.] ‘Under this definition, property may be found to be in the victim's immediate presence “even though it is located in another room of the house, or in another building on [the] premises.” ’ [Citation.]” (People v. Johnson (2015) 60 Cal.4th 966, 989.) Courts have held that a reasonable trier of fact could find the immediate presence requirement satisfied where the robber shot at the victim from a distance of 100 to 150 feet as the victim attempted to regain the property (People v. Gomez (2008) 43 Cal.4th 249, 265); the victim, a motel manager, was killed in a motel room 107 feet away from the motel office from which the property was stolen (People v. Hayes (1990) 52 Cal.3d 577, 626-629 (Hayes)); and the victim was lured a quarter mile away from his car by robbers who killed him and then stole his car (People v. Webster (1991) 54 Cal.3d 411, 439-442). In Hayes, the court reasoned that the “distance between [the motel room and the office] ․ was not so great that the manager would necessarily have been unable to see or hear an attempt to break into the office or to return to the office in time to resist such an attempt. Therefore, a rational trier of fact could find that the property in the office remained under [the manager's] physical control while he was performing various chores in other parts of the motel premises and, in particular, while he was inside the motel room ․” (Hayes, supra, at p. 631.)
Here, Glass was in the store during the robbery. Jurors reasonably could have concluded that Glass could have returned to his cash drawer in time to resist the robbery had he not been held at gunpoint and shot, such that the immediate presence requirement was satisfied.
Flie's second contention is that Glass was not in possession of the property because he was not on duty. In Flie's view, Glass had been on a break and never resumed his duties because he fled immediately upon reentering the Check ‘n Go. Flie relies on Scott, in which our Supreme Court concluded that “all on-duty employees have constructive possession of the[ir] employer's property during a robbery ․” (Scott, supra, 45 Cal.4th at p. 755.)
Viewing the evidence in the light most favorable to the judgment, a reasonable jury could have found that Glass was on duty at the time of the robbery. Glass testified that he was “still on the [ ]clock” while he was sitting outside the taqueria. And, to the extent he was on a break, he ended that break when he reentered the Check ‘n Go to assist Devine with what he believed were two potential customers.
For these reasons, Flie's sufficiency-of-the-evidence claim as to his count 2 conviction fails.
C. Claims Related to Glass's Identification of Flie
Flie raises a number of claims related to Glass's in-court identification of him as the shooter. Before addressing those claims, we set forth the relevant facts.
At the preliminary hearing, Glass identified Wells as the first man to enter the Check ‘n Go prior to the robbery, but stated he could not say who the second man to enter the store was. Glass testified at that time that it was the second man who shot him. At trial, Glass identified Flie as the second man to enter the store and the shooter. He explained his failure to make a visual identification of Flie earlier as follows: “[T]he previous hearing was shortly after the incident; it was less than six months. I was still very afraid ․ [I]t was still very fresh in my mind ․ I just didn't really ․ want to look at someone in the eye[ ] that tried to kill you.” After Glass made that statement, Flie's counsel objected without specifying any grounds for the objection. The court overruled the objection, at which time Flie's counsel stated “I withdraw it.”
On cross-examination, Glass testified that he had saved a picture of Flie that had appeared in the newspaper to his phone. He also had seen a photograph of Flie in the prosecutor's office a week prior to trial. The photograph was in a stack of papers on the prosecutor's desk, which Glass flipped through without her permission. Upon seeing the photograph of Flie, Glass volunteered to the prosecutor, “[t]hat's the shooter.” The prosecutor did not disclose to the defense that Glass had identified Flie as the shooter based on his photograph.
Counsel for defendants requested that the jury be instructed with CALCRIM No. 306 regarding untimely disclosure of evidence. Flie's counsel stated that the identification “was a surprise” and the lack of disclosure denied him the opportunity to prepare his client “emotionally” for the identification. The prosecutor stated that Glass's claim that he did not identify Flie at the preliminary hearing because he was afraid was “news to” her. The court denied the request to instruct with CALCRIM No. 306.
1. The Admission of Glass's Statement Regarding His Fear of Identifying Flie Was Not Reversible Error
Flie argues that Glass's testimony regarding his fear of identifying Flie at the preliminary hearing should have been excluded under Evidence Code section 352. The People respond that Flie forfeited that claim because his counsel failed to state the basis for the objection and withdrew it. The People further claim that the testimony was properly admitted, and, even if it should have been excluded, was not prejudicial.
a. Legal Principles and Standard of Review
Only relevant evidence is admissible. (Evid. Code, § 350.) The Evidence Code defines “relevant evidence” broadly as “evidence ․ having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210, italics added.) “ ‘[T]he trial court has broad discretion to determine the relevance of evidence.’ ” (People v. Tully (2012) 54 Cal.4th 952, 1010.) “On appeal, ‘an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
A trial court has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) For purposes of Evidence Code section 352, evidence is “prejudicial” if it “ ‘ “uniquely tends to evoke an emotional bias against defendant” ’ without regard to its relevance on material issues.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp).) “ ‘ “[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” ’ ” (People v. Scott (2011) 52 Cal.4th 452, 491.) “We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352.” (Kipp, supra, at p. 1121.)
b. The Claim Was Forfeited
The People argue Flie forfeited his Evidence Code section 352 claim because his counsel did not state a basis for objecting to the testimony at issue and withdrew his nonspecific objection. Flie responds that the court deprived trial counsel of the opportunity to articulate a specific ground for the objection. Moreover, he maintains the attempted withdrawal is irrelevant, as the objection had already been overruled.
Evidence Code section 353 provides that “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Italics added.) “ ‘Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.’ ” (People v. Boyette (2002) 29 Cal.4th 381, 424 (Boyette).)
Flie's claim is forfeited for purposes of appeal because trial counsel failed to make clear the specific ground of the objection. Furthermore, as we conclude below, were we to excuse this forfeiture and address the substance of Flie's claim, we would reject it on the merits.4
c. The Claim Is Meritless
Flie rightly acknowledges the relevance of Glass's testimony to his credibility. Evidence Code section 780, subdivision (j), authorizes jurors to consider a witness's “attitude ․ toward the giving of testimony” in assessing his or her credibility. In view of that provision, our Supreme Court has “recognized [that] ‘[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.]’ ” (People v. Mendoza (2011) 52 Cal.4th 1056, 1084.) In addition to being probative of credibility, Glass's testimony was relevant in that it explained an inconsistency between his preliminary hearing testimony and his trial testimony.
Flie contends the probative value of Glass's testimony was substantially weakened, if not eliminated, by other explanations for his behavior. In particular, Flie argues that Glass's failure to identify him at the preliminary hearing is better explained by Glass's “limited ability to view appellant and his focus on the gun” than by fear. And Flie says Glass's ability to identify him at trial was a result of Glass looking at pictures of Flie before trial. But the fact that eyewitness testimony is vulnerable to impeachment “does not render the evidence irrelevant or unduly prejudicial.” (People v. Alcala (1992) 4 Cal.4th 742, 790.) Whether Glass was credible, including with regard to his claimed fear, was an issue for the jury to decide. (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009 (Vorse) [“It is axiomatic that questions of credibility are exclusively within the province of the jury”].)
With respect to prejudice, Flie argues that Glass's testimony regarding his fear bolstered the credibility of his in-court identification of Flie. In other words, Flie claims that the challenged testimony was prejudicial because it strengthened the prosecution case against him. But that is “what opposing evidence is generally supposed to do.” (Vorse, supra, 53 Cal.App.4th at p. 1009.) In the context of section 352, “ ‘ “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612, 638 [“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence”].) Nor does undue prejudice under section 352 “occur merely because evidence is admitted that might hurt a party's case.” (Smalley v. Baty (2005) 128 Cal.App.4th 977, 985.) Rather, “[u]ndue prejudice under Evidence Code section 352 occurs when the jury is emotionally inflamed against a party without regard to the issues in the case.” (Ibid.)
For the first time on reply, Flie also contends that Glass's testimony was prejudicial because it evoked an emotional bias against Flie. That belated argument is forfeited. (Duff, supra, 58 Cal.4th at p. 550, fn. 9.) Even if we were to consider it on the merits, we would reject it. Jurors heard evidence that Flie shot Glass in the head and hand, committed armed robbery, and fled from police. They also viewed surveillance video footage depicting a man Glass identified as Flie wielding a gun. Given that context, Glass's testimony that he was afraid to identify Flie at the preliminary hearing was not likely to evoke improper bias or an emotional response on the part of the jurors. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408 [where the “jury heard evidence, inter alia, that all three defendants murdered several people, including a young child[, e]vidence of bribery and witness dissuasion was not likely to evoke improper bias or an emotional response on the part of the jurors”].)
For the foregoing reasons, we conclude Flie has failed to show that the probative value of Glass's testimony was substantially outweighed by the probability that its admission would create substantial danger of undue prejudice.
2. Alleged Discovery Violation Does Not Require Reversal
State law requires the prosecution to “disclose to the defendant or his or her attorney ․ [¶] ․ [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial ․” (§ 1054.1.) Oral statements also are subject to the section 1054.1 disclosure requirement. (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 167.)
Upon a showing that the defense complied with the informal discovery procedures provided by statute, and that the prosecutor has not complied with section 1054.1, a trial court “may make any order necessary to enforce the provisions” of the statute, “including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” (§ 1054.5, subd. (b).) The court may also “advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (Ibid.) A violation of section 1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Verdugo (2010) 50 Cal.4th 263, 280 (Verdugo).) Therefore, a section 1054.1 violation is grounds for reversal only where it is “reasonably probable that a result more favorable to defendant would have been reached in the absence of the” violation. (Watson, supra, at p. 837.)
Flie maintains that the prosecutor committed misconduct by failing to disclose material she was required to provide to the defense under section 1054.1—namely, Glass's pre-trial identification of Flie as the shooter. Flie says that nondisclosure prevented him from investigating the circumstances under which Glass made the identification, consulting with eyewitness identification and witness memory experts, and moving to suppress the identification.
a. The Claim Was Forfeited
Flie concedes that his trial counsel did not object to the prosecutor's failure to disclose Glass's pre-trial identification. The People argue that, accordingly, Flie forfeited any claim of error based on a purported section 1054.1 violation. In his reply brief, Flie belatedly argues that his failure to object should be excused because an objection would have been futile given that the court overruled counsel's objection to Glass's testimony, for which no specific ground was given.
Flie has not established futility. Trial counsel objected during the prosecutor's direct examination of Glass. It was not until later, during cross-examination, that trial counsel elicited testimony from Glass that he had identified Flie as the shooter during a pre-trial meeting with the prosecutor. Therefore, the trial court was unaware of any potential discovery issue at the time it overruled trial counsel's objection. Flie does not explain how, given the foregoing timeline, the trial court's ruling would have caused defense counsel to believe it was futile to object on section 1054.1 grounds. If such an objection had been asserted, the trial court could have granted Flie a continuance to do the investigation, consultation, and motion practice he now contends he was prevented from doing. Because objection was not futile, the issue is forfeited.
Flie further contends on reply that we should not find forfeiture because his claim raises a pure question of law. It does not. As discussed below, even assuming a section 1054.1 violation, reversal is warranted only if Flie establishes prejudice, which is a fact-bound inquiry.
Flie's reply also argues against forfeiture on the grounds that the non-disclosure “ ‘resulted in a denial of due process of law’ (People v. Matteson, 61 Cal.2d 466, 469-70 (1964) (overruled on other grounds by People v. Cahill, 5 Cal.4th 47, 510 n.15 (1993)) ․ [and] violated [his] fundamental constitutional rights to due process, a fair trial and to have the prosecution prove all elements beyond a reasonable doubt (People v. Saunders, 5 Cal.4th 580, 589 n. 5 (1993)) ․ ” Those untimely arguments are forfeited and are too perfunctory and inadequately developed to merit consideration. (Duff, supra, 58 Cal.4th at p. 550, fn. 9; People v. Freeman (1994) 8 Cal.4th 450, 482 fn. 2 [rejecting arguments because they were insufficiently developed].)
b. The Claim Fails on the Merits
Even disregarding the forfeiture and assuming a section 1054.1 violation, Flie's claim fails on the merits because he has not demonstrated prejudice. Because Watson governs, Flie must show a reasonable probability that the jury would have reached a different verdict had the discovery been produced in a timely manner. That he does not do.
Flie argues that he was deprived of the opportunity to investigate the circumstances under which Glass made the identification at the prosecutor's office. But trial counsel thoroughly questioned Glass about those circumstances on cross-examination. The prosecutor also described the encounter during which Glass identified Flie as the shooter to defense counsel and the court outside the presence of the jury. Flie fails to explain what further investigation could have been done. Accordingly, he does not carry his burden to show a reasonable probability that additional investigation would have resulted in a more favorable verdict. (Watson, supra, 46 Cal.2d at p. 837.)
While the defense did not present expert testimony regarding eyewitness identification, it did elicit other evidence undermining the credibility of Glass's identification. Glass conceded he did not identify Flie at the preliminary hearing. Defense counsel cross-examined Glass concerning the accuracy and reliability of his identification, eliciting admissions that Glass had a picture of Flie saved to his phone, had viewed the surveillance videos between the preliminary hearing and trial, and that “watching the video[s]” “assisted” his “memory,” at least as to how long the entire robbery lasted. During cross-examination, defense counsel suggested that viewing the videos and picture had influenced Glass's memory. Jurors also heard other eyewitness identification testimony from Devine and Duncan, parts of which both the prosecutor and Flie's defense counsel acknowledged in closing arguments were inaccurate. For example, on the day of the robbery, Devine misidentified the robber with the long dreadlocks as the shooter; the video surveillance established that he could not have shot Glass. In their closings, the prosecutor and Flie's counsel remarked on that inaccuracy. In court, Duncan misidentified McNair as the man depicted in a picture of Morgan. Again, the prosecutor and Flie's counsel noted Duncan's error in their closing arguments. Accordingly, here, the jury was disabused of any notion that eyewitness testimony is infallible. Moreover, the trial court instructed the jury to consider several factors in evaluating eyewitness identification testimony, including whether the witness was under stress when he or she made the observation, the amount of time that passed between the observation and the identification, and prior failure to identify the defendant. In view of that instruction and the evidence challenging the reliability of Glass's identification (and eyewitness identifications in general), it is not reasonably probable that a result more favorable to Flie would have been reached had the jury heard expert testimony regarding the reliability of eyewitness testimony (or lack thereof). (Watson, supra, 46 Cal.2d at p. 837.)
Finally, Flie contends he would have moved to suppress the identification on grounds of improper police influence absent the claimed discovery violation, citing Manson v. Brathwaite (1977) 432 U.S. 98 and Perry v. New Hampshire (2012) 568 U.S. 228 (Perry). The cases on which Flie relies hold that “when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime,” “the trial judge must screen the evidence for reliability pretrial.” (Id. at p. 232.) The Supreme Court has referred to that “pretrial screening for reliability” as a “a due process check on the admission of eyewitness identification ․” (Ibid.) “An identification infected by improper police influence” will be excluded if there is “ ‘a very substantial likelihood of irreparable misidentification ․’ ” (Ibid.) Significantly, the Perry court refused to extend the due process check for reliability to cases not involving improper police conduct. (Id. at p. 241.)
Here, Glass testified that he “initiated [the] conversation” regarding the photos, which he found while rifling through the prosecutor's files without her permission, and he “initiated the identification.” There is no evidence of improper police conduct. And, as noted above, Flie does not explain how further investigation might reveal such evidence given trial counsel's thorough exploration of the issue with Glass on cross-examination. Thus, Flie has failed to establish grounds for excluding Glass's identification. It follows that he has not shown that it is “reasonably probable that a result more favorable to [him] would have been reached” had Glass's testimony been disclosed in time for Flie to move for exclusion. (Watson, supra, 46 Cal.2d at p. 837.)
For the first time on reply, Flie articulates an ineffective assistance of counsel claim based on defense counsel's failure to object. (The opening brief refers to ineffectiveness in argument headings only.) That argument is waived. (Duff, supra, 58 Cal.4th at p. 550, fn. 9.; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 9 [perfunctory arguments are waived].)
3. Failure to Instruct With CALCRIM No. 306
As noted above, the trial court denied Flie's request that the jury be instructed, pursuant to CALCRIM No. 306, that it could consider the effect of the nondisclosure in evaluating the weight and significance of Glass's identification of Flie. Flie claims the court's refusal to instruct with CALCRIM No. 306 constituted reversible error.
Even assuming the court should have instructed with CALCRIM No. 306, Flie's claim fails because he does not carry his burden on appeal to show prejudice. Specifically, he does not even attempt to explain how the outcome of the case would have been different had the jury been instructed that the prosecution failed to timely disclose Glass's identification.
D. The Admission of Devine's Testimony Regarding Another Robbery Was Not Reversible Error
Devine's memory of the robbers and her ability to identify them was flawed. For example, she identified the suspect with the dreadlocks as the shooter, but the video establishes he could not have been the shooter. The prosecutor sought to rehabilitate Devine's credibility by establishing that she was distracted by the guns. Over defense objections on relevance and Evidence Code section 352 grounds, the prosecutor elicited testimony regarding a prior robbery Devine had witnessed. Devine testified that she was able to identify the suspects in the prior robbery, which did not involve guns. She further testified that, during the August 10, 2010 robbery, her focus was on the guns and on her and Glass's lives.
On appeal, Flie argues that the trial court erred in not excluding Devine's testimony about the other robbery as irrelevant and unduly prejudicial. He contends that this error was prejudicial and thus requires reversal, because the testimony evoked sympathy for Devine and animosity toward him for victimizing her a second time, this time with weapons.
We shall assume the admission of Devine's testimony constituted error. We nevertheless reject Flie's claim because that assumed error was harmless under any conceivable standard. (See Chapman v. California (1967) 386 U.S. 18, 24; Watson, supra, 46 Cal.2d 818; see also People v. Marks (2003) 31 Cal.4th 197, 227 [noting that application of “ordinary rules of evidence ․ does not implicate the federal Constitution, and thus we review allegations of error under the ‘reasonable probability’ standard ․” in Watson]; People v. Partida (2005) 37 Cal.4th 428, 439 [“Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test ․”].)
As noted, Flie's theory of prejudice is that Devine's discussion of a prior robbery evoked sympathy for her and, by extension, animosity for those who would make her a victim a second time in a more violent robbery. But unobjected-to evidence, particularly the surveillance videos, established that Devine was the victim of an armed robbery during which at least one gun was pointed at her at close range and her co-worker was shot in the head. In context, it is implausible that Devine's brief reference to a prior robbery not involving the defendants or weapons generated any additional sympathy for her or additional animosity toward defendants. Significantly, there is no suggestion that jurors could have been confused into believing Flie was involved in the earlier robbery. Accordingly, any error in the admission of Devine's testimony was harmless.
E. The Court's Response to Jury Question Was Not Reversible Error
The jury asked the court to “further clarify, define and/or give an example of the following in Penal Code 209(b)/CALCRIM 1203: the term ‘merely incidental.’ ” The court responded by instructing the jury to “look at all of Instruction 1203.”
As given in this case, CALCRIM No. 1203 provided, in relevant part: “The defendants are charged in [c]ount 1 with kidnapping for the purpose of robbery in violation of Penal Code section 209 (b). [¶] To prove that the defendant is guilty of this crime the People must prove that: [¶] 1. The defendant intended to commit robbery; [¶] 2. Acting with that intent, the defendant took, held, or detaining [sic] another person by using force or by instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a robbery; [¶] 5. When that movement began, the defendant already intended to commit robbery; [¶] AND [¶] 6. The movement was not consensual. ․ [¶] With regard to whether the movement was beyond that merely incidental to the robbery, you may consider the scope and nature of the movement which includes the actual distance a person is moved. However, there is no minimum distance a defendant must move a person to satisfy this element.”
Flie argues that the court's response violated section 1138, which provides: “After the jury have retired for deliberation, ․ if they desire to be informed on any point of law arising in the case, ․ the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” Flie contends the court should have responded by giving CALJIC 9.54, which states that “[b]rief movements to facilitate the crime[ ] of [robbery] ․ are incidental to the commission of the [robbery]. ․ On the other hand, movements to facilitate the [robbery] ․ that are [for] a substantial distance rather than brief are not incidental to the commission of the [robbery]. ․”
The record shows that all counsel were present in the courtroom to discuss the jury's question, but any discussion that may have occurred was not reported. Flie proposed, and the trial court adopted, a settled statement providing: “[t]he [trial] [c]ourt or one of the parties suggested that the response to the question read: ‘please look at all of instruction 1203.’ No party objected to the proposed response. The proposed response was read to the jury.” Because the record establishes that Flie's counsel did not object to the court's response, we agree with the People that Flie has forfeited this issue. (See Boyette, supra, 29 Cal.4th at p. 430 [issue not preserved for appeal where defendant failed to object to court's decision not to respond to juror's note]; People v. Kageler (1973) 32 Cal.App.3d 738, 746 [record lacking objection to court's answer to jury question deemed tacit approval].)
Even if the claim of error had been preserved, it would be meritless. “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) “We review for an abuse of discretion any error under section 1138.” (People v. Eid (2010) 187 Cal.App.4th 859, 882.)
Here, the court did not abuse its discretion in directing the jury to reread CALCRIM No. 1203 as to the meaning of the phrase “merely incidental.” The instruction explains the meaning of that phrase as elucidated by the applicable case law: “whether the movement was beyond that merely incidental to the robbery” depends on “the scope and nature of the movement which includes the actual distance a person is moved” and “there is no minimum distance a defendant must move a person to satisfy this element.”
F. Denial of Flie's Romero Motion Was Not Reversible Error
Flie argues the court abused its discretion in refusing to dismiss his juvenile adjudication, which qualified as a strike under the Three Strikes Law. We find no abuse of discretion.
1. Legal Principles
In Romero, the California Supreme Court “ ‘held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to ․ section 1385(a).' ” (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) Departure from the Three Strikes law's sentencing scheme is appropriate where, “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
“[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.) The party attacking the sentence bears the burden “ ‘ “to clearly show that the sentencing decision was irrational or arbitrary.” ’ ” (Id. at p. 376.) Reversal is not required “ ‘ “merely because reasonable people might disagree.” ’ ” (Id. at p. 377.) As such, we must not substitute our judgment for that of the trial court.
2. Factual Background
Flie suffered a prior juvenile adjudication for robbery in 2008, when he was 17 years old.
Flie began abusing drugs and alcohol at age 12 or 13. Around the same time, he began experiencing mood fluctuations. He was beaten in the head with a metal baseball bat until he was unconscious during a fight, apparently in his adolescence. He received no treatment for that head injury. Flie did not complete high school but did pass high school exit exams and hoped to attend community college. He was 19 years old at the time of the robbery.
Flie submitted a psychological report prepared by forensic psychologist D. Ashley Cohen, Ph.D., in support of his Romero motion. Dr. Cohen reported that Flie scored in the high average range of intellectual functioning. Dr. Cohen concluded that Flie “does not have the profile of a true psychopath, and thus would be considerably more amenable to rehabilitation than the average ‘Lifer’ prison inmate.” The report further concluded that Flie's head injury, an untreated mental illness, and untreated substance dependence may have contributed to Flie's illegal behavior.
In ruling on Flie's Romero motion, the court first addressed his current offenses. The court found Flie's acts of “bringing [Glass] back into that commercial establishment and ․ pulling the trigger” to be “extremely important.” Next, the court noted the prior juvenile adjudication for robbery two years prior to the current offenses. Finally, the court expressly considered Flie's “background, character, and prospects,” noting that he “was born in 1991,” suffered from “substance abuse,” has above average intelligence, does not have an antisocial personality, has never been to prison, and, according to Dr. Cohen, “could benefit from rehabilitation.” The court then denied the Romero motion, explaining that “[o]rdinarily in a person who has this kind of youth, above-average intelligence ․ [, and] documented substance abuse, I would have been in a position to probably more generously consider what was going on. This case, however, has several aspects that can have me departing from this process, and they are the extreme violence to two people inside of this commercial establishment. It is—it permeates this case. [¶] What also permeates this case is the fact that in 2008, there was a similar robbery. It involved the same ultimate result. I was convicted, and I just did not quite pick up the fact that that kind of conduct is not going to be tolerated.”
Flie contends the trial court failed to consider his youth, relative lack of a criminal history, lack of psychopathic personality, and prior head injury, while placing undue emphasis on the facts of the current and prior offenses. He further argues the court was wrong to conclude that his juvenile offense “involved the same ultimate result” as the current offense because few details about the prior robbery were in the record.
We begin with Flie's second contention, which we reject. When the court's statement regarding “the same ultimate result” is viewed in context, it is clear he was referring to the fact that Flie previously was punished for similar conduct—robbery—but failed to learn the lesson that such “conduct is not going to be tolerated.” That statement is supported by the record.
With respect to Flie's first argument, he points to nothing in the record to suggest that the court failed to consider the relevant factors. If anything, the record compels the opposite conclusion. The court noted it had read Dr. Cohen's report, which discussed the fact that Flie does not have a psychopathic personality and suffered a head injury. The court specifically mentioned Flie's youth and other mitigating factors. While it is true the court did not mention every relevant factor, it was not required to do so. Where the record is silent, we will presume that the trial court correctly applied the law. (Carmony, supra, 33 Cal.4th at p. 378 [“ ‘On a silent record in a post-Romero case, the presumption that a trial court ordinarily is presumed to have correctly applied the law should be applicable’ ”].) Flie fails to overcome this presumption by affirmatively showing error.
To the extent Flie's argument is that the court did not properly balance the relevant mitigating and aggravating factors, we reject it. At 17 years old, Flie committed a robbery and was punished. Undeterred, two years later he committed a second robbery. This time, he shot someone in the process. The court's conclusion that Flie falls within the spirit of the three strikes scheme is not so irrational or arbitrary that no reasonable person could agree with it. Accordingly, we find no error.
G. Consideration of Juvenile Adjudication as Strike Was Not Reversible Error
The trial court sentenced Flie as a second-striker based on his prior juvenile adjudication, which qualified as a strike. Flie maintains that was error under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. Specifically, he contends that his juvenile adjudication cannot be used to enhance his sentence because he had no right to a jury trial and proof beyond a reasonable doubt in the prior juvenile proceeding.
As Flie concedes, our Supreme Court rejected that argument in People v. Nguyen (2009) 46 Cal.4th 1007, 1019(Nguyen), holding that “the Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi, do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial.” We are bound to follow Nguyen. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
H. Cumulative Error
“Under the cumulative error doctrine, the reviewing court must ‘review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.’ ” (People v. Williams (2009) 170 Cal.App.4th 587, 646.) “The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
We have assumed three errors: a section 1054.1 violation, failure to instruct with CALCRIM No. 306, and the admission of Devine's testimony regarding a prior robbery. These assumed errors were harmless under any standard, whether considered individually or collectively. (People v. Williams, supra, 170 Cal.App.4th at p. 646.)
III. MCNAIR'S APPELLATE ARGUMENTS
A. Sufficient Evidence Supports the Gun Enhancement in Connection With McNair' s Conviction for False Imprisonment
The jury found that McNair personally used a firearm in the commission of the crime of false imprisonment. McNair argues that this finding is not supported by sufficient evidence because he played no role in Glass's detention and his conviction for false imprisonment was likely based on the natural and probable consequences doctrine.
The People contend that McNair could have been directly or vicariously liable for Glass's false imprisonment. Even assuming McNair's liability rests on the natural and probable consequences doctrine, the enhancement is supported by the evidence.
Under the natural and probable consequences doctrine, “ ‘ “[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.” ’ ” (People v. Weddington (2016) 246 Cal.App.4th 468, 486-487.) Criminal liability under the natural and probable consequences doctrine is a form of aider and abettor liability and is vicarious in nature. (People v. Chiu (2014) 59 Cal.4th 155, 164.) Courts have held that “one who commits an act which renders him criminally liable, whether directly or vicariously, is subject to the section 12022.5 enhancement if he personally uses a firearm during that act.” (In re Antonio R. (1990) 226 Cal.App.3d 476, 479, italics added; see People v. Berry (1993) 17 Cal.App.4th 332, 335 [use of a firearm enhancement applies “where the defendant is armed and uses his firearm in furtherance of a series of related offenses that culminates in a fatal or near fatal shooting even though the defendant does not personally fire the actual shot”]; People v. Calhoun (2007) 40 Cal.4th 398, 404 [gunman who aids and abets robbery is subject to a firearm use enhancement].) Here, McNair personally used a firearm to commit an act (the robbery) which made him vicariously liable for the false imprisonment of Glass; he was therefore properly subject to the enhancement.
B. Proposition 47 Does Not Require Remand in Connection With the Prior Prison Term Enhancement
The court found true allegations that McNair previously served two prior prison terms and imposed two one-year sentence enhancements pursuant to section 667.5, subdivision (b) based on that finding. One of those prison terms was imposed following McNair's 2005 convictions in San Mateo County of forgery by passing a bad check (§ 475, subd. (c)) and felony petty theft with a prior (§ 666). McNair contends those convictions may be subject to reduction to misdemeanors under Proposition 47. He requests remand to the trial court—the Santa Clara County Superior Court—for a new trial on the enhancement or to allow him to file a section 1170.18 application.
The People agree that McNair's prior offenses are “eligible for consideration under section 1170.18.” The parties further agree that the trial court must decide whether to reduce McNair's prior felony offenses to misdemeanors and that it would be premature for this court to address whether and how future reductions would affect the section 667.5 enhancement. The only disagreement between the parties appears to be procedural. McNair requests that the “prior conviction enhancement ․ be remanded for a new trial.” The People's view appears to be that remand is unnecessary, though McNair may file an application under section 1170.18, subdivision (f), to have his 2005 convictions designated as misdemeanors.
1. Proposition 47
Voters approved Proposition 47, “the Safe Neighborhoods and Schools Act,” in November 2014. (Proposition 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014; see Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 (Rivera).)
“Proposition 47 also created a new resentencing provision: section 1170.18.” (Rivera, supra, 233 Cal.App.4th at p. 1091.) Under subdivision (a) of that provision, a person “currently serving” a felony sentence for an offense that is now a misdemeanor under Proposition 47 may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) Where a petitioner satisfies the criteria in section 1170.18, the court must recall the petitioner's felony sentence and resentence him or her “to a misdemeanor ․ unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) Under section 1170.18, subdivisions (f) and (g), a person who has completed a felony sentence for an offense that would now be a misdemeanor under Proposition 47 is entitled to have their felony conviction designated as a misdemeanor upon filing an application with the trial court “that entered the judgment of conviction in his or her case ․” (§ 1170.18, subd. (f).) Subdivision (k) of section 1170.18 provides that “[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (The “Chapter 2” mentioned in section 1170.18, subdivision (k) refers to §§ 29800 to 29875, which contain prohibitions on firearm access by persons with certain criminal convictions.)
2. Principles of Statutory Interpretation
“ ‘In interpreting a voter initiative like [Proposition 47], we apply the same principles that govern statutory construction.’ ” (Rivera, supra, 233 Cal.App.4th at p. 1099.) In construing a statute, our fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose. (People v. Cornett (2012) 53 Cal.4th 1261, 1265 (Cornett).) “In the case of [an initiative] adopted by the voters, their intent governs.” (People v. Jones (1993) 5 Cal.4th 1142, 1146.)
“ ‘We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.’ [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]” (Cornett, supra, 53 Cal.4th at p. 1265) “We do not, however, consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute ․ in order to determine the scope and purpose of the provision ․ [Citation.]’ [Citation.] That is, we construe the words in question ‘ “in context, keeping in mind the nature and obvious purpose of the statute ․” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment ․ by considering the particular clause or section in the context of the statutory framework as a whole.’ [Citations.]” (People v. Murphy (2001) 25 Cal.4th 136, 142.)
“A statutory provision is ambiguous if it is susceptible of two reasonable interpretations.” (People v. Dieck (2009) 46 Cal.4th 934, 940.) “If the language is unambiguous and a literal construction would not result in absurd consequences, we presume that the voters intended the meaning on the face of the initiative and the plain meaning governs. [Citations.] If the language is ambiguous, we may consider the analyses and arguments contained in the official ballot pamphlet as extrinsic evidence of the voters' intent and understanding of the initiative.” (Schmeer v. County of Los Angeles (2013) 213 Cal.App.4th 1310, 1316-1317.)
Subdivision (f) of section 1170.18 provides that “[a] person who has completed his or her sentence for a conviction ․ of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (Italics added.) We agree with our colleagues in the Second District that the foregoing language unambiguously means that the remedy for someone who has completed a sentence for a felony conviction that would be a misdemeanor conviction under Proposition 47 “lies in the first instance by filing ․ an application to redesignate ․ in the superior court of conviction.” (People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1332 (Diaz); see People v. Shabazz (2015) 237 Cal.App.4th 303, 314 [“Defendant is limited to the statutory remedy set forth in section 1170.18, subdivision (f). He must file an application in the trial court to have his felony convictions designated misdemeanors”]; see also People v. Awad (2015) 238 Cal.App.4th 215, 220-222 [for a person currently serving a felony sentence for an offense that is now a misdemeanor, section 1170.18 “vests” the task of resentencing that individual to a misdemeanor “with the trial court”].) Because section 1170.18 provides McNair's exclusive remedy, we decline to remand for a new trial on the enhancement as he requests.
Remand to the Santa Clara County Superior Court is improper for a second reason. Section 1170.18, subdivision (f) expressly requires that any application to have an offense redesignated as a misdemeanor be filed “before the trial court that entered the judgment of conviction in his or her case ․” Thus, McNair must file his section 1170.18, subdivision (f) application in the San Mateo County Superior Court. (See Diaz, supra, 238 Cal.App.4th at p. 1337, fn. 6 [concluding that a remand would be “unworkable” where the appeal was from a judgment of the Los Angeles Superior Court but defendant was required to file his section 1170.18, subdivision (f) application in the San Bernardino Superior Court].) However, McNair is free to avail himself of the procedure established by section 1170.18, subdivisions (f) and (g) even absent a remand.
C. Sufficient Evidence Supports McNair's Conviction for Robbery of Glass
McNair joins Flie's argument that there is insufficient evidence that defendants robbed Glass. We reject that argument for the reasons we rejected Flie's contention. (Supra, Part II.B.)
IV.WELLS'S APPELLATE ARGUMENTS
A. Denial of Wells's Romero Motion Was Not Reversible Error
Wells argues the court abused its discretion in refusing to dismiss one of his strikes based on his history of mental illness and drug abuse and the remoteness of two of the prior convictions. We set forth the legal principles governing our review of the denial of a Romero motion above.
Wells's mother was a heroin addict and his father was killed when Wells was 13 years old. Wells was raised by his grandmother from a very young age. He began using cocaine in 1997 and had used it “constantly” since that time. He has been diagnosed with mood disorder, major depressive disorder, and bipolar disorder.
Wells suffered three prior strike convictions for a 1997 robbery, a 1999 carjacking, and a 2006 robbery. He was armed with a knife or a gun during each of those prior offenses.
In considering Wells's Romero motion, the court discussed the facts of the current case; noted Wells's three strikes, including that they all involved weapons; and acknowledged Wells's “dysfunctional childhood,” “mental health challenges,” and cocaine addiction. The court denied the motion, reasoning that Wells “uses violence, uses weapons, to pursue whatever form of gaining other people's property that can be done, and there is little, if any, consideration given to the victims involved and to public safety in general.”
Wells contends the court abused its discretion for three reasons. First, he points to the mitigating factors raised in his Romero motion, including his mental health issues and difficult childhood. But the court expressly considered those factors. It simply was convinced by other relevant factors, including the violent nature of Wells's current and prior offenses, that Wells fell within the spirit of the Three Strikes Law.
Second, Wells contends the court gave too little weight to the remoteness of two of his strike offenses, which were committed over a decade before the current offenses. But Wells “did not refrain from criminal activity during that span of time ․” (Williams, supra, 17 Cal.4th at p. 163.) Indeed, he was on parole for his most recent strike offense at the time of the current robbery. Thus, the passage of time between his earliest strike offense and the current offenses is not particularly mitigating.
Finally, Wells notes that his strike convictions were the result of guilty pleas that he “could have entered ․ just to get the cases resolved, and without having considered the notion that those pleas could come back to haunt him as strikes.” That argument is unpersuasive. Plainly, convictions obtained by way of plea bargains may constitute strikes. The Three Strikes Law became effective on March 7, 1994, and thus was in effect when Wells committed his three strike priors. (See Stats.1994, ch. 12, § 1; People v. Helms (1997) 15 Cal.4th 608, 611.) With respect to Wells's first strike offense, the record indicates that the court advised Wells that his guilty plea would result in a strike conviction. Wells neither claims, nor submits evidence showing, that he did not receive similar advisements in connection with his later guilty pleas.
In sum, Wells has not carried his burden to show the trial court's decision to deny his Romero motion was irrational or arbitrary.
B. Wells's Sentence Does Not Constitute Cruel and Unusual Punishment
Wells contends his 106-years-to-life sentence constitutes cruel and unusual punishment because it is grossly disproportionate to the crime. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)5 While Wells invokes both the state and federal constitutions, he acknowledges that the federal Constitution affords no greater protection than the state Constitution and focuses on the state standard. We follow suit.
Article I, section 17 of the California Constitution prohibits a punishment that is “grossly disproportionate to the offense for which it is imposed.” (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon), superseded by statute on another ground as stated in People v. Chun (2009) 45 Cal.4th 1172, 1186.) In determining whether a sentence is cruel and unusual, California courts use three “techniques”: (1) considering the nature of the offense and the offender; (2) comparing the challenged punishment to those imposed by the same jurisdiction for more serious crimes; and (3) comparing the challenged punishment to those imposed by other jurisdictions for the same crime. (In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch) superseded by statute on other grounds as stated in People v. West (1999) 70 Cal.App.4th 248, 256; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510 (Martinez).) Wells contends his sentence is disproportionate under the first technique described in Lynch: an examination of “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (Lynch, supra, at p. 425.)
With respect to the nature of the offense, we must consider “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479.) Wells participated in an armed robbery during which a man was shot in the head. Later, he and his cohorts fled police. Wells did not fire the shot, though he was armed and did brandish his weapon. He apparently had exited the store before the shot was fired and the cash was taken. Armed robbery presents a significant degree of danger to society, as this case illustrates. Fleeing police also may put the public in danger.
Turning to Wells as an offender, we ask “whether the punishment is grossly disproportionate to [his] individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Dillon, supra, 34 Cal.3d at p. 479.) Wells was 36 years old at the time of the current robbery. His mature age counsels against finding disproportionality. He had committed two prior armed robberies and an armed carjacking. This criminal record reflects his inability to conform his conduct to the law and the danger he presents to society. Notably, Wells's sentence was imposed in part because of those prior offenses as punishment for his recidivism. Wells focuses on his personal characteristics, including his difficult childhood, drug addiction, and mental illness. As this court stated in Martinez, supra, 71 Cal.App.4th at p. 1511, “drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. ․ [And while Wells's] upbringing and [mental illness] are unfortunate, ․ the law still holds such an individual responsible for his or her behavior.”
The facts of the instant offense, as well as Wells's history of crime, weighs against a conclusion that his sentence is disproportionate. Thus, Wells has failed to establish that his sentence is disproportionate under the first Lynch technique.
Wells notes that the sentence exceeds his life expectancy. He cites no case in which a sentence was found to be cruel and unusual on those grounds, and several published cases have rejected the contention. (People v. Haller (2009) 174 Cal.App.4th 1080, 1089; People v. Retanan (2007) 154 Cal.App.4th 1219, 1231; People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383.) Wells also suggests that the Three Strikes Law itself is unconstitutional. This and other courts have rejected that claim. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516 [rejecting contention that California's Three Strikes Law is unconstitutional]; People v. Cooper (1996) 43 Cal.App.4th 815, 824 [“application of the three strikes sentencing scheme to third strikers like appellant does not constitute cruel and unusual punishment under the Eighth Amendment.”]; see Ewing v. California (2003) 538 U.S. 11 [25-years-to-life sentence under three strikes law for theft of three golf clubs worth $399 each not cruel and unusual under the federal constitution]; Lockyer v. Andrade (2003) 538 U.S. 63 [two consecutive terms of 25 years to life under three strikes law for thefts of less than $150 worth of videotapes not cruel and unusual under the federal constitution].)
For the foregoing reasons, Wells's cruel and unusual punishment challenge fails.
C. Claimed Instructional Error
During trial, jurors heard evidence that McNair told an officer at the time of his arrest, “I'm the first to admit it. I did it.” There also was evidence that Wells made out-of-court statements before trial. Specifically, an officer testified that when he detained Wells, Wells stated that he hadn't done anything wrong, gave a false name, and admitted to having recently smoked cocaine. The trial court instructed the jury with CALCRIM No. 305 as follows: “You have heard evidence that defendants McNair and Wells made statements out of court and before trial. You may consider that evidence only against each of them, not against any other defendant.” The written instructions provided to the jury contained slightly different wording: “You have heard evidence that defendants McNair and Wells made a statement (out of court/before trial). You may consider that evidence only against (him), not against any other defendant.”
Wells contends CALCRIM No. 305, as given, was misleading because jurors might have interpreted the instruction “to mean that both McNair and [he] confessed to robbing the Check ‘n Go.” The People argue Wells forfeited this claim by failing to object to the instruction below. Because Wells alternatively raises an ineffective assistance of counsel claim based on trial counsel's failure to object, we shall reach the merits of the claim. (People v. Marlow (2004) 34 Cal.4th 131, 150 [addressing merits of forfeited claim because defendant asserted ineffective assistance of counsel].)
“ ‘ “For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.” ’ ” (People v. O'Malley (2016) 62 Cal.4th 944, 994.) There simply is no reasonable likelihood that the jury applied the instruction in the absurd manner Wells posits. We therefore reject his claim.
The judgments of conviction are affirmed.
1. Flie has also filed a petition for writ of habeas corpus, which we resolve by separate order.
2. Further unspecified statutory references are to the Penal Code.
3. People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
4. For the first time in his reply brief, Flie raises an ineffective assistance of counsel claim based on counsel's failure to preserve the Evidence Code section 352 claim. That claim is waived, having been omitted from the opening brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 (Duff).) In any event, the claim lacks merit given our conclusion, below, that an Evidence Code section 352 objection would have been meritless. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 [“Counsel's failure to make a futile or unmeritorious objection is not deficient performance”].)
5. The Eighth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Article I, section 17, of the California Constitution likewise declares that “cruel or unusual punishment may not be inflicted or excessive fines imposed.”
ELIA, ACTING P.J.
WE CONCUR: BAMATTRE-MANOUKIAN, J. MIHARA, J.