PEOPLE v. JACKSON

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Arthur Duane JACKSON, et al., Defendants and Appellants.

No. B090217.

Decided: January 17, 1996

Corinne S. Shulman, Hydesville, under appointment by the Court of Appeal, for Defendant and Appellant Arthur Duane Jackson. John F. Schuck, Palo Alto, under appointment by the Court of Appeal, for Defendant and Appellant John Holani. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Sanjay T. Kumar and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellants Arthur Duane Jackson and John Holani of willful, deliberate, and premeditated attempted murder (Pen.Code, §§ 664/187;  count I.   Statutory references, unless otherwise noted, are to the Penal Code), carjacking (§ 215;  count II) and found true allegations each appellant had personally used a firearm in the commission of the offenses (§ 12022.5), that appellant Holani had inflicted great bodily injury in the commission of the offenses (§ 12022.7, subd. (a)), and that appellant Jackson had a prior residential burglary conviction (§§ 667, subds. (b)–(i), 667, subd. (a)).

Appellants' contentions involve double jeopardy, instructional error, improper double punishment (§ 654), ineffective assistance of counsel, evidentiary errors, Marsden error (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44), “three strike” errors (§ 667, subds. (b)–(i)), insufficient evidence regarding a prior felony allegation, and sentencing error.

We find sentencing error concerning appellant Jackson, modify his judgment accordingly, but otherwise affirm the judgments.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On April 28, 1994, at 1:32 a.m. a request for assistance was made from freeway call-box 605–134 on the 605 freeway at Whittier Boulevard.   A California Highway Patrol (CHP) dispatcher contacted Hadley's tow service, which sent a tow truck to the location.   At 2:08 a.m. Hadley's informed the CHP that the requesting party had refused service because he only wanted a spare tire.   At 2:10 a.m. the party made a second request for assistance and the CHP contacted Freddie Mac tow service.   They sent one of their drivers, Hugo Leiva, to the scene.

Mr. Leiva arrived about 3 a.m. and saw a brown, two-door, 1975 Chevrolet Monte Carlo parked on the shoulder of the northbound 605 freeway.   It had a flat rear tire and inside, two people were asleep.   Mr. Leiva knocked on the passenger's window awakening the passenger, appellant Jackson, and the driver, appellant Holani.

Appellant Holani told Mr. Leiva they had a flat tire but no spare and wanted to be towed to Long Beach.   Mr. Leiva explained the charges and appellants agreed.

Appellants exited and Mr. Leiva switched a front tire with the flat rear tire and hooked up the Chevrolet.   The three men then entered the tow truck, appellant Jackson in the middle.

While on the 605 freeway appellant Jackson told Mr. Leiva he was not going toward Long Beach.   Mr. Leiva explained he had to go north to Beverly in order to get on the 605 South.

Appellant Holani asked Mr. Leiva if the truck had a radio and Mr. Leiva said it did but he didn't play it.   Later, appellant Holani asked what the time was and Mr. Leiva, not having a watch, called his company and said it was 3:30 a.m.

Soon after Mr. Leiva got on the 405 South, appellant Jackson asked him to pull over so appellant Holani could urinate.   Mr. Leiva did, parking near call-box 405–4.   Appellant Holani got out, took a few steps, reached toward his waist, pulled out a gun, pointed it at Mr. Leiva and said “Give me all your money.”

Appellant Jackson, still seated next to Mr. Leiva, pulled out a gun, pushed Mr. Leiva's head down, and asked for his wallet.   Appellant Jackson removed Mr. Leiva's wallet and patted him down, as though searching for a weapon.

Appellant Holani reached across appellant Jackson, grabbed Mr. Leiva by the neck, pulled him over appellant Jackson out of the truck, and ordered him to lay on the ground.   When Mr. Leiva was on his back, face up, appellant Holani said “face down.”   As Mr. Leiva turned over appellant Holani shot him in the back.   Mr. Leiva got up and started running.   He heard two more shots but was not hit by them.   Bleeding and weak, Mr. Leiva fell.   He saw his tow truck, with the Chevrolet Monte Carlo still attached, drive off.

Mr. Leiva yelled for help but no one stopped.   On his knees, he crawled to the call-box and asked for assistance.   CHP officers and then paramedics arrived and Mr. Leiva was taken to a hospital.

Because Mr. Leiva's tow truck had a teletrac device, law enforcement officers were able to track it.

At about 4 a.m. Long Beach Police Officer Chowen was led to an enclosed, gated apartment complex at 34th Street and Santa Fe where he saw the tow truck.   It was in an interior parking area in the middle of the complex and had its lights on.   A dark male was near it.   Officer Chowen radioed he had located the tow truck and had observed a suspect.   He then drove to the only entrance but could not open the gate.   Other officers arrived, entry was effected, and a search was conducted.   Although no suspects were located, Mr. Leiva's flashlight was found on a stairway near the tow truck, a .22 caliber loaded pistol was recovered by a fence near the tow truck, and the teletrac device was removed from a dumpster.   The Chevrolet Monte Carlo was parked in stall 3325 near the tow truck.   Inside the Chevrolet Monte Carlo police found documents with appellant Jackson's name, registration papers in the name of appellant Jackson's girlfriend, Andrea Branch, and an identification card for “Darren Webster Jackson,” a name appellant Jackson used.

A week later, on May 5, 1994, surveilling officers saw appellant Holani leave an apartment in the Santa Fe–34th Street complex and walk to a nearby market where they arrested him.

Appellant Jackson was arrested June 24, 1994, when he left his room at the Atlantic Motel in Long Beach.   He was with a cousin of appellant Holani's.   Police searched appellant Jackson's room and found an air gun and, under the mattress, a loaded 380 Davis semi-automatic pistol.   Appellant Jackson told the officers his name was Dion Jones.

Appellant Holani's fingerprints were found inside the driver's door and outside the driver's door window of the Chevrolet Monte Carlo.

The bullet removed from Mr. Leiva was fired from the .22 caliber pistol found by the fence at the Santa Fe apartment complex.

Appellant Holani lived with a cousin at the Santa Fe complex in apartment 3325.

Appellant Jackson frequented the Santa Fe complex, was friends with appellant Holani, and often played dice there with cousins of appellant Holani.

Both appellants testified.

Appellant Holani testified that he lived in apartment 3325 with a cousin and on April 27, 1994, he was babysitting there with his girlfriend Greta.   At 11 p.m., while appellant Jackson was playing dice in the parking area, he took appellant Jackson's Chevrolet Monte Carlo, got some food for Greta, returned the car, and went back to his apartment where he remained all night with Greta.

Greta was not called as a witness.

Appellant Jackson testified he arrived at the Santa Fe apartment complex about 1 a.m. on April 28, 1994, played dice until 2 a.m., and left with his brother in the Chevrolet Monte Carlo.   They drove about 20 blocks to Monica Stocket's house where they drank beer and talked to her, her mother Evelyn, and Teresa Cummings.   About 4 a.m. he fell asleep on the couch.   When he awoke later that morning he discovered the Chevrolet Monte Carlo was missing, called Andrea Branch, and told her to inform the police.

Monica Stocket, Evelyn Stocket, Teresa Cummings, and Andrea Branch were not called as witnesses.

DISCUSSION

1. Double jeopardy

 The first trial of appellants began October 3, 1994, with Superior Court Judge Richard R. Romero presiding.   On October 5, 1994,—a jury having been selected and sworn and opening statements having been made by the prosecutor and counsel for appellant Holani—counsel for appellant Jackson moved for a mistrial.   The motion was based upon the prosecutor's failure to provide defense counsel a copy of appellant Jackson's arrest report.

After counsel for appellant Jackson had explained to the trial court the basis for his motion, the trial court inquired of counsel for appellant Holani what his position was concerning the mistrial motion.   The following colloquy occurred:

“The Court:  Mr. Hawkins [counsel for appellant Holani] [?]

“Mr. Hawkins:  Submit it.

“The Court:  So you're not opposing?

“Mr. Hawkins:  May I have just a moment your Honor?

“The Court:  Sure.   I'm not indicating which way I'm going to be ruling.   I just need to know where people are coming from.

“(Counsel and clients confer sotto voce.)

“Mr. Hawkins:  Yes, I would be submitting, your Honor.”

Shortly thereafter the trial court granted the motion and declared a mistrial.

On December 5, 1994, the instant trial began again.   Neither appellant claimed he had been “once in jeopardy.”  (§ 1016, subd. (5).)

Appellant Holani now contends 1 he did not consent to the October 5, 1994, mistrial and was twice put in jeopardy.  (U.S. Const. Amend. V;  Cal. Const., art. I, § 15.)   We disagree.

 Our Supreme Court has stated “affirmative conduct by the defendant may constitute a waiver [of double jeopardy] if it clearly evidences consent․”  (Curry v. Superior Court (1970) 2 Cal.3d 707, 713, 87 Cal.Rptr. 361, 470 P.2d 345.)

Such affirmative conduct has been found when a defendant, after trial had begun and jeopardy attached, asked for a two or three week continuance without expressly moving for a mistrial.   On appeal, in rejecting his double jeopardy claim, the court stated:  “In our opinion, the only reasonable inference to be drawn from the events of December 7 is that appellant impliedly consented to a discharge of the jury.   Having consented, he waived his right to claim jeopardy at the subsequent trial.”  (People v. Ramirez (1972) 27 Cal.App.3d 660, 670, 104 Cal.Rptr. 102.)

Similarly, when defense counsel reacted to improper evidence by declaring “ ‘I am satisfied ․ this case should either result in a mistrial or an instructed verdict’ and ‘I am going to ask that we have an instructed verdict ․’ ” he was held to have consented to a mistrial.  (People v. Kelly (1933) 132 Cal.App. 118, 121–122, 22 P.2d 526.)

Here the trial court expressly asked appellant Holani's counsel whether or not he “opposed” the mistrial motion and made plain he “need[ed] to know” counsel's position before ruling.

The record is clear the trial court understood defense counsel's initial “submit it” response to mean he did not oppose the motion.   That understanding was confirmed when defense counsel, before expressly answering the trial court's question (“So you're not opposing?”) conferred with his client and apparently, counsel for appellant Jackson,2 and then stated, “Yes, I would be submitting, your Honor.”

As Ramirez said, “the only reasonable inference to be drawn from the events ․ is that appellant impliedly consented to a discharge of the jury.”   (People v. Ramirez, supra, 27 Cal.App.3d 660, 670, 104 Cal.Rptr. 102.)   Plainly, that is what the trial court understood.   Equally clear, that is what defense counsel intended the trial court to understand.3

There was no double jeopardy violation.

2. Failure to give a lesser included offense instruction

 Appellants contend the trial court had a sua sponte duty to instruct on felony joyriding (Veh.Code, § 10851), a lesser included offense of carjacking (§ 215).

 A trial court must instruct “on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.”  (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Wickersham (1982) 32 Cal.3d 307, 323–324, 185 Cal.Rptr. 436, 650 P.2d 311.)

Appellants argue the evidence raised an issue concerning the “force or fear” element of carjacking, thus requiring the lesser included felony-joyriding instruction.   The argument is couched this way:  “The jury could have readily found that the force and fear used by Holani and Jackson was in relation to their attempt to rob and kill Leiva, not with regard to taking the tow truck.”   The argument does not bear scrutiny.

 Since both appellants denied involvement in the offenses only one witness, the victim, described the carjacking.   His testimony of being yanked out of his tow truck, forced to lie face down on the ground, shot in the back, and almost immediately thereafter seeing appellants drive away in his tow truck—raised no issue of “force or fear.”  “[T]here was no evidence to support the theory that the underlying offense ․ was other than [carjacking].   Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense.”  (People v. Wilson (1992) 3 Cal.4th 926, 942, 13 Cal.Rptr.2d 259, 838 P.2d 1212.)

3. Double punishment:  section 654

 Appellants contend the trial court erred in imposing punishment both for attempted murder and carjacking.   They argue the crimes were part of an indivisible course of conduct with one intent and objective.  (§ 654;  Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839.)   We disagree.

We recently stated:  “In declining to overrule Neal our Supreme Court noted:

“Decisions since Neal have limited the rule's application in various ways.   Some have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment.  (E.g., People v. Harrison [ (1989) ] 48 Cal.3d [321] at pp. 334–338 [256 Cal.Rptr. 401, 768 P.2d 1078] [multiple sex crimes each have the separate objective of achieving additional sexual gratification];  People v. Perez [ (1979) ] 23 Cal.3d [545], at pp. 551–554 [153 Cal.Rptr. 40, 591 P.2d 63] [similar];  People v. Trotter (1992) 7 Cal.App.4th 363, 368 [8 Cal.Rptr.2d 648] [‘each shot [fired at the same victim] evinced a separate intent to do violence’].)

“Other cases have found separate, although sometimes simultaneous, objectives under the facts.  (E.g., People v. Coleman (1989) 48 Cal.3d 112, [255 Cal.Rptr. 813, 768 P.2d 32] [assault of robbery victim had separate intent and objective than the robbery];  People v. Nguyen (1988) 204 Cal.App.3d 181, 189–193, 196 [251 Cal.Rptr. 40] [harming of unresisting robbery victim a separate objective from the robbery itself];  People v. Booth (1988) 201 Cal.App.3d 1499, 1502 [248 Cal.Rptr. 64] [‘dual objectives of rape and theft when entering the victims' residences' supported separate punishment for burglaries and rapes];  People v. Porter (1987) 194 Cal.App.3d 34, 37–39 [239 Cal.Rptr. 269] [robbery and kidnapping the same victim for a later, additional, robbery had separate objectives].)   Additionally, even Neal itself made clear that crimes of violence against multiple victims were separately punishable.  (Neal, supra, 55 Cal.2d at pp. 20–21 [9 Cal.Rptr. 607, 357 P.2d 839].)

“These examples, which are not exhaustive, have helped mitigate the concerns regarding the Neal test in specific situations․”  (People v. Latimer (1993) 5 Cal.4th 1203, 1211–1212 [23 Cal.Rptr.2d 144, 858 P.2d 611].)

“Latimer also observed:  ‘We also stress that nothing we say in this opinion is intended to cast doubt on any of the later judicial limitations of the Neal rule.   For example, we do not intend to question the validity of decisions finding consecutive, and therefore separate, intents, and those finding different, if simultaneous, intents․  Multiple punishment in those cases remains appropriate.’  (5 Cal.4th at p. 1216 [23 Cal.Rptr.2d 144, 858 P.2d 611].)”  (People v. Nichols (1994) 29 Cal.App.4th 1651, 1656–1657, 35 Cal.Rptr.2d 478.)

Consistent with Latimer and the cases it discussed, appellants were properly punished both for carjacking and attempted murder.   The crimes had separate intents and objectives.   Once the victim was removed from his tow truck and lay on the ground he provided no impediment to the completion of the carjacking.   All the force and fear necessary for that crime had already occurred.   Thereafter, shooting him in the back and attempting to shoot him when he fled were acts done pursuant to different intents and objectives.   (In re Chapman (1954) 43 Cal.2d 385, 273 P.2d 817 [Defendant properly punished for both robbery and felony assault because he struck victim after taking his wallet];  People v. Macias (1982) 137 Cal.App.3d 465, 469–470, 187 Cal.Rptr. 100 [Attempted murder and escape];  People v. Stiltner (1982) 132 Cal.App.3d 216, 227–229, 182 Cal.Rptr. 790 [Robbery and forcible oral copulation];  People v. Hopkins (1975) 44 Cal.App.3d 669, 675–676, 119 Cal.Rptr. 61 [Defendant who robbed and then hit an 89–year–old woman with a salami properly punished for both robbery and felony assault].)

4. Ineffective assistance of counsel

 Appellant Holani contends his trial counsel was ineffective for not obtaining a pretrial ruling excluding gang evidence and for failing to object to such evidence.

 “To establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms.   Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him.”   (People v. Hawkins (1995) 10 Cal.4th 920, 940, 42 Cal.Rptr.2d 636, 897 P.2d 574.)

 “In some cases ․ the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged.   In such circumstances, unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.”  (People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892.)

Appellant Holani has failed to show that a reasonably competent counsel would have sought and obtained a pretrial ruling excluding gang evidence.   To the contrary the record suggests there was little reason to seek such a pretrial ruling.   The prosecutor, in his opening statement, made no reference to gang evidence.   Moreover, the first eight prosecution witnesses testified without any reference to gangs.   It was the ninth prosecution witness, Detective Nelson, who first mentioned gangs and he did so in a non-responsive answer.   The prosecutor asked him what appellant Holani had said “about his involvement in the charged offenses in this case?”   Instead of answering that question, Detective Nelson responded:  “I first asked, for my own curiousness, if he was a member of the S.O.S. gang on the west side, which is the Sons of Samoa, that frequent that area.   He stated to me that he was not Samoan, that he was—that he was Tonganese.   He was a member of the Tonganese Crip Gang out of Inglewood.”

The record also suggests why defense counsel might not have objected to this unexpected and non-responsive reference to gangs.   The prosecutor immediately shifted focus away from this gang reference and asked Detective Nelson “specifically about the events of this case.”   Had defense counsel objected and perhaps requested an admonition concerning the gang reference, he might have focused attention on the non-responsive answer.

The next reference to gangs was elicited not by the prosecutor but by counsel for appellant Jackson.   He asked Detective Nelson if the victim had said he thought his assailants “were gang bangers?”   There are many reasons why counsel for appellant Holani might not have objected to this question.   E.g., he may have thought his fellow defense counsel was probing for victim bias.   He may also have thought it unwise to obstruct examination by his fellow defense counsel especially since appellant Jackson had not yet testified.

We have examined the other gang references and are satisfied that as to most, there was little reason to object.   As to the few others, appellant Holani has failed to show an objection would have affected the verdict.

These offenses had nothing to do with gangs and the prosecutor did not claim otherwise.

Appellant Holani was not denied effective assistance of counsel.

5. Evidentiary error:  call-box tape recording

In rebuttal, the prosecutor sought to play a tape recording of the 1:32 a.m. and 2:10 a.m. telephone calls from call-box 605–134.   Over defense objection the trial court permitted the tape to be played for the jury.

Appellants contend:  (a) the tape should have been excluded because the prosecutor violated discovery requirements (b) the tape was improper rebuttal and (c) the trial court wrongfully denied appellant Jackson's continuance motion to have an expert examine the tape.   We consider each contention.

a. Discovery requirements

 Section 1054.1, in pertinent part, provides:

“The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information ․

“(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.

“(b) Statements of all defendants.

“(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.

“․

“(e) Any exculpatory evidence.

“(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.”

Although the prosecutor possessed the tape recording before trial, he did not provide defense counsel copies of it nor inform them of its existence until after appellants had testified and the defenses had rested.   The prosecutor justified delayed disclosure on the ground he did not intend to offer the tape (or call Darlene Pedersen, the foundation witness) until after appellant Jackson had testified that he remained in possession of the Chevrolet Monte Carlo (whose flat tire precipitated the call-box telephone calls) until at least 2:30 a.m.

The trial court accepted the prosecutor's explanation, stating:  “I want to make clear that it does not appear that the prosecution was purposefully withholding or attempting to sandbag in this case.   It appears that the audio tape became relevant only at the point in time when the defendant, Mr. Jackson, raised the issue that he was not in possession of the vehicle after 2:30 in the morning, but at all times up to and including approximately 2:30 in the morning he was in possession of the suspect vehicle in this case.   That testimony made then relevant the audio tape and the radio log indicating that someone had made a call for service on that very same vehicle an hour, approximately one hour, prior to the time that Mr. Jackson has testified that he was still in possession of the vehicle.”

We find the prosecutor's justification unpersuasive and the trial court's relevance finding erroneous.

The prosecutor's justification may have exempted him from section 1054.1, subdivision (a) but it did not exempt him from subdivisions (b) [“Statements of all defendants”] or (c) [“All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.”] and perhaps (e) [“Any exculpatory evidence.”].

Subdivision (b) applied because the tape recording contained “statements of [a] defendant[ ].” 4  This subdivision omits “relevance” as a disclosure condition.

Subdivision (c) applied because the tape recording was “real evidence” and indisputably “relevant.”   It was relevant because it contained the voice of one of the two perpetrators.   If that voice was appellant Jackson's, it was relevant because it was evidence of guilt.   If it was not appellant Jackson's voice it was relevant because it was evidence of innocence.

By failing to disclose the tape recording from July 1994 until after the defense had rested on December 13, 1994, the prosecutor violated section 1054.1.

 Despite the prosecutor's violation of the discovery statute we conclude it was not error to admit the tape recording.   Our reasons are these:  (1) defense counsel had been timely provided with discovery reports which informed them that a person who had identified himself as Darren Jackson called CHP on April 28, 1994, at 1:32 a.m. and 2:09 a.m. from call box 605–134 requesting assistance for his brown and gold Chevrolet Monte Carlo which had a flat tire.   Defense counsel could have, but did not, ascertain from CHP whether tape recordings of those calls were available.  (2) The trial court found the prosecutor had not “purposefully with[held]” the tape recording.  (3) The purpose of the discovery statute is to “promote the ascertainment of truth in trials” (§ 1054) and “[t]he court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted.”   (§ 1054.5, subd. (c);  People v. Gonzales (1994) 22 Cal.App.4th 1744, 1756–1757, 28 Cal.Rptr.2d 325.)

b. Improper rebuttal

 Although we have held the tape recording was relevant evidence which the prosecutor had a duty to timely disclose pursuant to section 1054.1, that does not mean the prosecutor had a duty to introduce this evidence in his case-in-chief.

“All relevant evidence is admissible” (Evid.Code, § 351) but not all admissible evidence need be offered.   A jailhouse informant may claim the defendant confessed but only a gullible prosecutor would automatically offer such suspect testimony.   The testimony of a racist police officer may harm the prosecution more than the defense.   As one court observed:  “during the trial process, things change and the best laid strategies and expectations may quickly become inappropriate:  witnesses who have been interviewed vacillate or change their statements;  events that did not loom large prospectively may become a focal point in reality.   Thus, there must be some flexibility․  After hearing a witness, the necessity of a rebuttal witness may become more important.”  (People v. Hammond (1994) 22 Cal.App.4th 1611, 1624, 28 Cal.Rptr.2d 180.)

The trial court, after listening to the tape recording, observed “the audio tape is somewhat poor in quality, and in parts difficult to understand.”   The trial court also found that the significance of the tape recording increased after appellant Jackson's testimony.   Under such circumstances, we conclude the trial court did not abuse its discretion by admitting the tape as rebuttal evidence.

c. Continuance motion

 During the morning of December 13, 1994, after the prosecution had concluded its rebuttal, counsel for appellant Jackson asked “for a reasonable continuance ․ to obtain the assistance of an expert witness to examine the tape and to attempt to do a voice comparison between my client and the individual on the tape.”

When the court asked defense counsel how long it would take to obtain an expert and have such a comparison made, defense counsel made “a ballpark estimate” of a week or two but said he “could probably make some phone calls over the lunch hour” to provide more precise information.

After the lunch hour, the trial court asked defense counsel if he had additional expert witness information.   Defense counsel said no and reiterated his one to two week estimate.

The trial court denied the continuance motion stating, “It does not appear from the record at hand that there's any certainty as to any exculpatory evidence that may be garnered from the audio tape.   The audio tape is somewhat poor in quality, and in parts difficult to understand because of the problem with one person talking over another during the course of the receipt of the telephone call from the person requesting tow truck service at the location of Whittier off ramp to the 605 freeway on the date in question.

“In addition, the admissibility of the [expert witness] evidence, if at all, is uncertain, and further, whether or not an expert, should one be retained, whether or not that person could render a[n] opinion one way or another given the quality of the evidence of which that person might work, is suspect.”

Appellants contend denial of the two week continuance motion—made at the end of rebuttal—was error.   We disagree.

The trial court's reasons justify its ruling.   Additionally, we note the following:  (1) counsel for appellant Jackson, after listening to the tape recording, said “it sounds similar” to his client's voice (2) after the tape recording was played for the jury in rebuttal appellant Jackson did not testify in surrebuttal to deny it was his voice on the tape recording and (3) although sentencing occurred more than two weeks after the guilty verdicts, there is no indication the defense sought an expert to examine the tape recording during that period or thereafter.

6. Marsden error

 Appellant Jackson contends the trial court committed Marsden error (People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44) when, after the guilty verdicts and immediately before his bifurcated trial on the prior conviction allegation, he requested new counsel and the trial court refused to listen to his reasons.

It is less than clear that appellant Jackson made a Marsden motion.   He first stated, “Can I just be sentenced today?   I don't want no jury priors.   Just sentence me today.”   Then he indicated he “would like to represent myself at this time.”   But when the court told him he had the right to do so and asked if he was ready to proceed, appellant Jackson said he wasn't and “would like another counsel representing me immediately.”   He then asserted “it is conflict of interests” and moments later gave a different reason, namely, “there's not proper communication between me and my attorney at this time.”

 When a defendant seeks to relieve his court appointed attorney the court has a duty to listen to his reasons.  (People v. Marsden, supra, 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 465 P.2d 44.)   Failure to do so is an abuse of discretion.  (Id. at p. 124, 84 Cal.Rptr. 156, 465 P.2d 44.)

Assuming the trial court committed Marsden error by failing to adequately listen to appellant Jackson's reasons for wanting to discharge his appointed attorney, we find the error harmless beyond a reasonable doubt.   (People v. Chavez (1980) 26 Cal.3d 334, 348–349, 161 Cal.Rptr. 762, 605 P.2d 401.)

Appellant Jackson, on cross-examination in the guilt phase, had admitted being convicted of the alleged June 1992 residential burglary and exhibit 31, which we have examined, established that conviction.

7. Sufficiency of evidence:  residential burglary prior

 Appellant Jackson contends the evidence of his first degree burglary conviction was insufficient to prove the conviction was a “serious felony” within the meaning of section 1192.7, subdivision (c)(18).

This latter subdivision includes as a “serious felony” a “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building, ․”

Not congruent with subdivision (c)(18) is section 460, which defines first degree burglary.   In 1992, the date of the subject conviction, section 460 provided:  “Every burglary of an inhabited dwelling house, vessel ․ floating home ․, or trailer coach, ․ or the inhabited portion of any other building, is burglary of the first degree.”

Appellant Jackson argues his burglary conviction might have involved a vessel or floating home and therefore would not be a “serious felony” within the meaning of section 1192.7, subdivision (c)(18).5  We disagree.

Documentary proof and appellant's testimony showed he had been convicted of first degree “residential” burglary.   It is possible, of course, for a vessel or floating home to be a residence.   But as a reviewing court determining sufficiency of evidence neither “possibilities” nor proof beyond a reasonable doubt are our concern.   If substantial evidence supports the jury's finding we must sustain it.   We are satisfied that proof of a first degree residential burglary conviction constitutes substantial evidence of a “serious felony” within the meaning of section 1192.7, subdivision (c)(18).

8. Reasonable doubt instruction

 The trial court gave the following, standard reasonable doubt instruction:

“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.   This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.”

“Reasonable doubt is defined as follows:  It is not a mere possible doubt;  because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.   It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”  (CALJIC No. 2.90 (1994 Revision).)

Appellant Jackson contends this instruction, by omitting the phrase “moral certainty,” 6 “permits a finding of guilt based on a lesser showing than due process requires.”   The defect of the instruction, appellant Jackson argues, is its failure to convey what degree of certainty proof beyond a reasonable doubt requires.   Appellant Jackson observes the instruction refers not to degree of certainty but only to duration of certainty (“abiding ” conviction).

We agree the instruction does not specify what degree of certainty is required for proof beyond a reasonable doubt.7  But that is not a criticism of the instruction.   Rather, it is an inherent quality of reasonable doubt.   (See People v. Collins (1968) 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33;  People v. Brigham (1979) 25 Cal.3d 283, 292–316, 157 Cal.Rptr. 905, 599 P.2d 100 (concurring opn. of Justice Mosk).)   Reasonable doubt is not, and perhaps should not be, subject to quantification.  (See People v. Collins, supra, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33.)

There was no error (People v. Freeman, supra, 8 Cal.4th 450, 501, 34 Cal.Rptr.2d 558, 882 P.2d 249;  People v. Higareda (1994) 24 Cal.App.4th 1399, 1414, 29 Cal.Rptr.2d 763.)

9. “Three strikes”:  pre-March 7, 1994, convictions

 Appellant Jackson contends his pre-March 7, 1994, conviction does not qualify as a “strike.”  (§ 667, subds. (b)–(i).)

The contention is a familiar one.   We join other courts in rejecting it.  (People v. Reed (1995) 33 Cal.App.4th 1608, 1610–1612, 40 Cal.Rptr.2d 47;  People v. Anderson (1995) 35 Cal.App.4th 587, 600–601, 41 Cal.Rptr.2d 474;  People v. Green (1995) 36 Cal.App.4th 280, 42 Cal.Rptr.2d 249;  People v. Sipe (1995) 36 Cal.App.4th 468, 42 Cal.Rptr.2d 266;  People v. Hill (1995) 37 Cal.App.4th 220, 44 Cal.Rptr.2d 11.)

10. “Three strikes”:  dual use

 Appellant Jackson contends it was improper to use his burglary conviction as both a “strike” (§ 667, subds. (b)–(i)) and section 667, subdivision (a) enhancement.   He is mistaken.  (People v. Ramirez (1995) 33 Cal.App.4th 559, 39 Cal.Rptr.2d 374 (review denied June 1, 1995);  People v. Anderson, supra, 35 Cal.App.4th 587, 594–600, 41 Cal.Rptr.2d 474;  People v. Sipe, supra, 36 Cal.App.4th 468, 484–488, 42 Cal.Rptr.2d 266.)

11. Implied hearsay statement

 Detective Nieto, a prosecution witness, testified he had a conversation with Andrea Branch, the owner of the Chevrolet Monte Carlo, and she stated “she had locked and secured her car about Monday morning—one o'clock in the morning on April the 28.   About one o'clock in the morning she locked and secured it in front of her apartment complex, then her [sic] and Arthur [appellant Jackson] went to sleep, and then he got up approximately seven o'clock and discovered the Monte Carlo had been stolen and told her to call the police.”

Appellant Jackson does not contend any of Andrea Branch's explicit statements (she locked her car, it was 1 a.m., the car was parked in front of her apartment, etc.) were hearsay.   He acknowledges these explicit statements were not offered for their truth and thus were not hearsay.  (Evid.Code, § 1200.)

Rather, appellant Jackson contends the statements were “offered to prove the truth of an implied statement—that appellant asked Branch to provide an alibi for him.” 8  Appellant contends the trial court erred in admitting this implied hearsay statement.   Three authorities are cited as supporting appellant's contention.

The first, People v. Harris (1978) 85 Cal.App.3d 954, 149 Cal.Rptr. 860, involved testimony that a child molestation victim, while standing outside the defendant's car, stated “I don't have to get in your car, Mister, to show you where it's at.   It's just right down there.”  (Id. at p. 956, 149 Cal.Rptr. 860.)

On appeal, Harris claimed the implied statement that the car's driver had asked the boy to enter the car was hearsay.

Harris held the trial court properly admitted the evidence for two reasons:  (1) Harris had failed to adequately object and (2) the declarations were not hearsay but circumstantial evidence.  (People v. Harris, supra, 85 Cal.App.3d 954, 958, 149 Cal.Rptr. 860.   Eleven circumstantial evidence cases are cited in the footnote at page 958.)

Harris does not support appellant's contention.

The second, People v. Anderson (1974) 43 Cal.App.3d 94, 117 Cal.Rptr. 507, involved a sale of drugs.   An officer testified his informant went into the bedroom with defendant, came out alone and asked him if he had change, reentered the bedroom, and returned with a package of drugs.

On appeal, Anderson claimed the informant's declaration (a request for change) was hearsay because it implied conduct by the defendant.  Anderson did not squarely address the merits of this claim.  Anderson stated the defendant's trial court objection was inadequate, error, if any, was harmless, and the defendant “was afforded the opportunity to cross-examine [the officer].” 9  (People v. Anderson, supra, 43 Cal.App.3d 94, 103, 117 Cal.Rptr. 507.)

Anderson does not support appellant's contention.

The third is Professor Jefferson's treatise as published in 1982.  (1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 1.2, p. 40, § 21.3, p. 523.)   What appellant neglects to mention is that three years later when reiterating his analysis that such implied statements are inadmissible hearsay, Professor Jefferson acknowledges:  “But the courts have not yet seen fit to use this hearsay analysis in this situation.   See People v. Alca[l]de (1944) 24 C2d 177, 148 P2d 627;  People v. Chambers (1982) 136 CA3d 444, 186 CR 306;  and People v. Warner (1969) 270 CA2d 900, 72 [76] CR 160.”  (Jefferson, Jefferson's Synopsis of California Evidence Law (CEB 1985) § 1.2, p. 14.)

Appellant's contention is without merit.

12. Sentencing error

As the Attorney General concedes, the trial court erroneously sentenced appellant Jackson to two consecutive life terms for his attempted murder conviction.

Misled by the prosecutor, the trial court misapplied section 667, subdivision (e)(1):  “If a defendant has one prior felony conviction ․ the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”

The punishment for willful, deliberate, premeditated attempted murder is life imprisonment, an indeterminate term.  (§ 664.)   The minimum term is seven years.  (§ 3046.)

Accordingly, pursuant to section 667, subdivision (e)(1) the trial court should have sentenced appellant Jackson to a 14–years–to–life term.   We shall order the judgment modified.

DISPOSITION

The judgment of appellant Arthur Jackson is ordered modified by deleting reference to count one and inserting:  “As to count one the defendant is sentenced to a life term and shall be ineligible for parole until he has served at least 14 calendar years.”   It is otherwise affirmed.

The judgment of defendant John Holani is affirmed.

FOOTNOTES

1.   Appellant Jackson “joined” in all issues raised by appellant Holani but has not argued that his motion for a mistrial was not consent to a mistrial.

2.   The reporter noted “(Counsel and clients confer sotto voce.)”   (Italics added.)

3.   Accordingly, there was no ineffective assistance of counsel by failure to later assert double jeopardy in the trial court.

4.   Section 1054.1 does not define “statements.”   It appears to be used in its ordinary meaning, the one provided in Evidence Code section 225:  “ ‘Statement’ means (a) oral or written verbal expression․”

5.   This issue is before the California Supreme Court.   See People v. Cruz, tracking citation (1995) 38 Cal.App.4th 582, 39 Cal.Rptr.2d 668.

6.   Criticized in Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 and People v. Freeman (1994) 8 Cal.4th 450, 504, 34 Cal.Rptr.2d 558, 882 P.2d 249.

7.   Nor did it do so in its earlier “moral certainty” version because the phrase “moral certainty” was, at best, meaningless.

8.   As we earlier noted, at trial appellant Jackson relied upon a different alibi.   He testified he was at Monica Stocket's house and the Chevrolet Monte Carlo was parked by her house and it was from her house that he telephoned Andrea Branch when he discovered the car missing.

9.   Just as appellant Jackson was afforded the opportunity to cross-examine Detective Nieto.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.