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

The PEOPLE, Plaintiff and Respondent, v. Charles HAYES, Defendant and Appellant.

No. B091671.

Decided: April 24, 1996

Michael R. Totaro (Court-appointed), Los Angeles, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, Sanjay T. Kumar, and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant of carjacking (Pen.Code, § 215;  statutory references, unless otherwise noted, are to the Penal Code) while using a firearm (§ 12022.5, subd. (a)) and in a bifurcated trial found true allegations he had twice been convicted of robbery (§§ 667, subd. (a)(1);  667.5, subd. (a);  667, subds. (b)-(i)).1  The trial court sentenced appellant to a 31–year–to–life state prison term.

Appellant contends:  (1) evidence of guilt is insufficient;  (2) the prosecutor committed Wheeler (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) error;  (3) the trial court erred in excluding a police report;  (4) the trial court mistakenly believed it had no discretion to dismiss a “strike”;  (5) “three strikes” (§ 667, subds.(b)-(i)) is not valid urgency legislation;  and (6) there was no “factual basis” for his 1984 robbery conviction.

Respondent contends:  (1) the trial court failed to impose two mandatory 5–year enhancements (§ 667, subd. (a));  and (2) the trial court awarded appellant one day excess custody credit.

We find appellant's contentions without merit, agree with respondent's first contention (and modify the judgment accordingly) and decline to consider his second.


The facts are simple.   We summarize them with a perspective favoring the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On Wednesday, September 14, 1994, Julia Moliere, a Black woman in her 50's, left work and drove her recently acquired 1984 four-door Cadillac Cimarron to the Fast Fuel Gas Station on Firestone Boulevard and Mary Street in South Central Los Angeles.   When she arrived, approximately 3:30 p.m., she noticed two young Black men sitting together outside the station on a railing.

Ms. Moliere parked by a pump, walked to the office, paid the attendant, and then put gas in her car.   When she finished she got back in her car and sat for a moment.   Then, by her open driver's window, she heard one of the men who had been sitting on the railing say, “Do you have any money?”   She said “no.”   The man then said “Give me your wallet.”

Ms. Moliere turned to look at the man.   His face was a foot or two from hers.   She saw a young Black man wearing a black baseball cap holding a revolver 2 pointed at her head.   She gave him her wallet.

The baseball cap robber then told her to leave her keys in the ignition and get out.   She did.   While the two of them stood face to face, the baseball cap robber told his companion, a shorter Black man, about the same age, wearing a blue sweatshirt and baggy pants but without a cap, to come around the car, start it, and open the passenger door.   He did.   Then, when the baseball cap robber got in on the passenger side, they drove off.

Ms. Moliere, “extremely shaken” and crying, went to the gas station office and called the sheriff.   A deputy arrived a few minutes later, obtained her description of the suspects and when she couldn't remember her car license number, took her to the dealer from whom she had bought it and got the number.

A few hours later, about 8 p.m., and a few blocks away, a large group of people were at a house attending a gang member's wake.   Several uniformed gang-unit police officers were in the vicinity.   One of the officers, Timothy Dacus, saw a fast moving four-door Cimarron turn left on 101st Street, near where he was standing, run up the curb out of control, and park.   His attention was attracted to the car.   He saw the two occupants, young Black men, exit.   The driver, Cornelius Butler,3 wore a dark sweatshirt, was about 5′7″, shorter than the passenger, and was bareheaded.

The passenger, appellant, wore a black baseball cap and had something in his left hand.

Appellant and Butler walked away from Officer Dacus who told Officers Flores and Oatis to drive after them and detain them.

Officer Dacus walked toward the Cimarron and, using his mobile radio, requested its status.   While walking after Butler and appellant he learned the Cimarron had been stolen in an armed robbery by two male Blacks.

As Officers Flores and Oatis, in their black and white police vehicle, drew alongside Butler and appellant, Officer Dacus saw appellant toss the object he had in his left hand.   Officer Oatis also saw him and recovered the object, a loaded .38 caliber revolver.

Butler and appellant were arrested.   While Officer Flores was handcuffing Butler he noticed Butler grinding something into the ground with his foot.   Officer Flores recovered the object, the keys and remote control for the Cimarron.

About two weeks later Detective Carey showed Ms. Moliere a six-person photo lineup.   She identified appellant as the robber wearing the baseball cap and holding the gun.

Later, at a live lineup, Ms. Moliere again identified him.   She positively identified him at trial.

She also identified Butler at a live lineup, after initially selecting someone else and then correcting herself.

The defense was alibi.   Appellant's wife testified he was with her at the time of the carjacking.   The defense also denied that appellant or Butler had been inside or had any connection with the victim's Cimarron.4

Appellant did not testify and Butler did not appear at the trial.

1. Appellant contends evidence of guilt is insufficient

Appellant argues the only evidence “linking [him] to the ․ carjacking” was the “contradictory” testimony of the victim.   He minimizes her identification because she didn't notice his earring, goatee, or teardrop tattoo on his eyelid.5  Appellant dismisses Officer Dacus's testimony linking him to the victim's Cimarron as merely showing “possession of stolen property.”   As for the revolver the victim described which matched the gun appellant discarded—he makes no mention at all.

 Appellant's contention does not bear scrutiny.   Our function in reviewing an insufficiency of evidence claim is not to determine witness credibility or determine guilt beyond a reasonable doubt.  (People v. Barnes, supra, 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)   If there is substantial evidence from which a reasonable juror could find guilt, we must affirm.  (Ibid.)

 Here the evidence was not just substantial it was overwhelming.   The victim consistently and positively identified appellant as the carjacker.   Immediately after the carjacking she told authorities one of the carjackers wore a black baseball cap and had a revolver.   A few hours later appellant was arrested wearing a black baseball cap after he had discarded a revolver.   The victim, although less positively, identified Butler as the other carjacker.   A few hours after the carjacking Officer Dacus saw Butler and appellant together in the victim's car and other officers saw appellant and Butler walking together.   Butler had the keys to the stolen Cimarron which he tried to hide.

The contention is meritless.

2. Appellant contends the prosecutor committed Wheeler error

Appellant asserts “The prosecutors used two 6 of its peremptory challenges on minorities, including the only black juror out of 40 chosen for the panel” and in doing so committed Wheeler error.   Appellant is mistaken.

 “A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias.”  (People v. Fuentes (1991) 54 Cal.3d 707, 713, 286 Cal.Rptr. 792, 818 P.2d 75.)

 When the prosecutor excused Mrs. Perryman, a Black juror, defense counsel claimed Wheeler error.   Asked by the trial court his reasons for excusing the juror, the prosecutor stated she was a social worker (Department of Social Services) likely to have a “more forgiving attitude” and she had only civil not criminal jury experience.

The trial court believed the prosecutor, was satisfied with his explanation, and denied the Wheeler motion.

 Our Supreme Court has made clear that appellate courts must give “great deference” to such trial court determinations.  (People v. Fuentes, supra, 54 Cal.3d at pp. 713–715, 286 Cal.Rptr. 792, 818 P.2d 75.)

We have no reason to doubt the trial court made a “sincere and reasoned” evaluation of the prosecutor's justification.

 Appellant made a second Wheeler motion when the prosecutor excused Ms. Orozco,7 a woman with a Hispanic surname.8

The trial court observed that four remaining jurors had Hispanic surnames and ruled appellant had failed to establish a prima facie case of group bias.   We find no error.

3. Appellant contends the trial court erred in excluding a police report

One person, Officer Dacus, saw appellant and Butler exit the Cimarron at about 8:30 p.m.   on September 14, 1994.   Officer Dacus testified Butler was the driver, appellant the passenger.

Officer Dacus did not author a report to record his observations because the related carjacking offense occurred in sheriff's not Los Angeles Police Department (LAPD) jurisdiction.   For that reason, although LAPD officers arrested appellant and Butler and seized evidence, custody of the arrestees and evidence was released to sheriff's deputies.

Mid-trial, defense counsel learned of an LAPD vehicle “investigation report” written by either an Officer Ross or Garrido which stated “observed defendants Hayes, Charles and Butler, Cornelius, exit above vehicle [the Cimarron] after parking it in front of 338 East 101st Street.   Hayes was in the driver's seat, and Butler was in the front passenger seat.”  (Italics added.)

Defense counsel sought to admit this report to impeach Officer Dacus.   The trial court noted the report was not written by Officer Dacus, the declarant was not identified in the report, and neither Officer Dacus nor any other officer-witness had referred to either Officer Ross or Garrido.   Therefore, on the ground offered, a prior inconsistent statement, the trial court excluded the report.

On appeal, appellant asserts the report was admissible as a business record (Evid.Code, § 1271) or public document (Evid.Code, § 1280).

 Because appellant failed to assert either ground to the trial court he may not urge them now.9  (Evid.Code, § 354;  People v. Livaditis (1992) 2 Cal.4th 759, 778, 9 Cal.Rptr.2d 72, 831 P.2d 297;  People v. Fauber (1992) 2 Cal.4th 792, 854, 9 Cal.Rptr.2d 24, 831 P.2d 249;  People v. Morse (1992) 2 Cal.App.4th 620, 636–642, 3 Cal.Rptr.2d 343.)

Appellant failed to show good cause (§ 1050) for an in-trial continuance in order to subpoena Officer Ross or Garrido.

There was no error.

4. Appellant contends the trial court mistakenly believed it had no discretion to dismiss a strike

 At the sentencing hearing, after the jury had found the serious felony conviction allegations (§ 667, subds.(b)-(i)) true, appellant requested the trial court to dismiss the “strikes.”   The trial court denied the request, stating it had no discretion to do so.   Appellant claims error.   As we have repeatedly held in cases now being reviewed by our Supreme Court, appellant is mistaken.

5. Appellant contends “three strikes” (§ 667, subds.(b)-(i)) is not valid urgency legislation

We have recently considered and rejected this invalid urgency claim (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1629, 47 Cal.Rptr.2d 769) as has another court (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1133–1134, 46 Cal.Rptr.2d 351).   The contention is without merit.

6. Appellant contends the trial court erred in not striking his 1984 robbery prior because it lacked a “factual basis”

After the jury had found appellant's 1984 and 1988 robbery priors true beyond a reasonable doubt, appellant moved they be stricken as constitutionally defective.  (People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15.)   The trial court entertained the motion and conducted an evidentiary hearing.10  Three exhibits (signed and initialed guilty plea forms and certified copies of reporters' transcripts of the guilty plea proceedings) were offered, received, and considered.   Additionally, appellant testified.   The trial court denied the motion as to both priors.

On appeal, appellant claims error only regarding the 1984 robbery conviction.11

The claim is based upon appellant's testimony that, although on September 4, 1984, in Long Beach, he pleaded guilty to robbery, all he did was “grab” or “snatch” $200 from the hand of a catering truck proprietor.   Thus, appellant argues the plea lacked a “factual basis” because the conduct amounted to no more than grand theft person.

We reject the argument for each of the following reasons.

 First, since none of the exhibits considered by the trial court are part of the record on appeal, appellant has failed to provide a record on appeal which demonstrates error.  (Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1585, 234 Cal.Rptr. 889.)

 “ ‘For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction.   Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.’   This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.”  (People v. Clifton (1969) 270 Cal.App.2d 860, 862, 76 Cal.Rptr. 193;  see also People v. Merriam (1967) 66 Cal.2d 390, 396–397, 58 Cal.Rptr. 1, 426 P.2d 161, overruled on other grounds in People v. Rincon–Pineda (1975) 14 Cal.3d 864, 882, 123 Cal.Rptr. 119, 538 P.2d 247 [“It is elementary that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings, and that ‘Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.’ ”];  People v. Keligian (1960) 182 Cal.App.2d 771, 774, 6 Cal.Rptr. 680;  People v. Green (1979) 95 Cal.App.3d 991, 1000–1001, 157 Cal.Rptr. 520;  Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193;  People v. Siegenthaler (1972) 7 Cal.3d 465, 469, 103 Cal.Rptr. 243, 499 P.2d 499;  Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1360, 7 Cal.Rptr.2d 482 (dis. opn. of Johnson, J.).)

 Second “ ‘where property is snatched from the person of another ․ the crime amounts to robbery.’ ”  (People v. Lescallett (1981) 123 Cal.App.3d 487, 491, 176 Cal.Rptr. 687.)

Third, appellant's testimony did not eliminate the possibility that fear subdued victim resistance and made the offense robbery, though without force.   (See 2 Witkin & Epstein, Cal.Criminal Law (2d ed.1982) § 644, pp. 725–726.)

 Fourth, it was appellant's burden to prove the lack of “factual basis” by a preponderance of the evidence.  (Curl v. Superior Court, supra, 51 Cal.3d 1292, 1307, 276 Cal.Rptr. 49, 801 P.2d 292.)   The trial court was not required to believe appellant's testimony and if it did not, appellant did not carry his burden of proof.


1. Respondent contends the trial court failed to impose two mandatory 5–year enhancements (§ 667, subd. (a))

Pursuant to section 667, subdivision (e)(2)(A) 12 the trial court set “the term for the current felony conviction” as “three times the term otherwise provided as punishment ․,” i.e., three times the upper 9–year term for carjacking, or 27 years.

What the trial court failed to do is impose sentence on the two section 667, subdivision (a) enhancements.13

 These enhancements are mandatory.   Subdivision (a)(1) provides:  “In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”

Moreover, section 667, subdivision (e) states its provisions shall apply “in addition to any other enhancement or punishment provisions․”See fn. 12 (Italics added.)

Appellant argues such imposition would constitute a prohibited “dual use.”   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 (1995) 35 Cal.App.4th 587, 594–600, 41 Cal.Rptr.2d 474;  People v. Sipe (1995) 36 Cal.App.4th 468, 484–488, 42 Cal.Rptr.2d 266.)

 An unauthorized sentence may be corrected by an appellate court “and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.”  (People v. Serrato (1973) 9 Cal.3d 753, 764, 109 Cal.Rptr. 65, 512 P.2d 289 disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.)

We shall modify the judgment accordingly.

2. One day custody credit error

 Respondent requests we correct a one day custody credit error in appellant's favor.   We decline.

 As we have repeatedly stated, when a party has failed to object to the custody credit error in the trial court, the custody credit error is de minimus, the sentence is lengthy, and other issues dominate the appeal—we shall not entertain an issue of custody credit error.


The judgment is ordered modified by adding, after “Allegation PC 12022.5(a) found to be TRUE”:

Allegation Penal Code section 667, subdivision (a) found to be True (1984 robbery conviction).

Allegation Penal Code section 667, subdivision (a) found to be True (1988 robbery conviction).

It is further ordered modified by deleting “FOR THE TERM OF 31 YEARS TO LIFE, TOTAL” and substituting “FOR THE TERM OF 41 YEARS TO LIFE, TOTAL.”

Additionally, after “plus 4 years purs. to PC 12022.5(a)” shall be added:  “plus 5 years for each of the two section 667, subdivision (a) enhancements.”

As modified, the judgment is affirmed.

I concur in the judgment and rationale of the majority opinion in all respects except its discussion of the trial court's discretion to strike prior serious convictions in the interest of justice.   For reasons expressed in my dissenting opinions in several cases the Supreme Court has accepted for review, I interpret the “three strikes law” as authorizing courts to exercise that discretion.   Furthermore, as also expressed in those dissenting opinions, if not so construed, I am convinced this clause of the “three strikes law” would violate the Constitutional requirement of separation of powers.1

I concur rather than dissent in this particular case because from the record it appears doubtful the trial court would not have exercised its discretion to strike appellant's prior “in the interest of justice.”   Indeed it may well have represented an abuse of discretion to strike a prior, given the seriousness of appellant's third strike and the nature of his prior offenses.


1.   The information also alleged appellant had been convicted of grand theft property (§ 487.1) on October 26, 1985, and served a state prison sentence within the meaning of section 667.5, subdivision (b).  However, the prosecutor requested no jury finding regarding this allegation, although his admitted evidence proved the allegation, and the jury made none.   The record contains no explanation for the omission.

2.   Ms. Moliere was unfamiliar with guns but saw the “bullet heads” in the gun.   When Deputy Sheriff Dale, who questioned her at the scene, showed her both an automatic and a revolver she said a revolver had been used.

3.   Jointly charged with appellant, he was held to answer and named as a codefendant in the information.   He was not tried with appellant—if at all—and is not a party to this appeal.

4.   The one fingerprint lifted from the Cimarron was not appellant's or Butler's.

5.   Appellant also asserts the victim first identified someone else at his lineup.   He is mistaken.   That occurred at Butler's lineup.

6.   The prosecutor used three peremptory challenges and the defense attorney used eight.

7.   Ms. Orozco said she was divorced.   She was not asked if Orozco was her married or maiden name.

8.   Appellant had already excused two Hispanic surnamed jurors.

9.   The claimed relevance—that the evidence showed Butler not appellant was personally armed—was marginal, at best.   Every percipient witness testified the taller person wearing the black baseball cap had the gun.   That was appellant.

10.   Such hearings should generally precede the beyond a reasonable doubt determination of the truth of the allegation.  (See People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904;  Curl v. Superior Court (1990) 51 Cal.3d 1292, 276 Cal.Rptr. 49, 801 P.2d 292.)

11.   The Attorney General mistakenly states “the record clearly indicates the prior in question was the 1988 robbery conviction.”

12.   Subdivision (e) reads:  “(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:“(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.“(2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:“(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.“(ii) Imprisonment in the state prison for 25 years.“(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.“(B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.   Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”

13.   Although the District Attorney alleged and proved enhancements he was mute concerning their imposition.

1.   These issues are presently before the California Supreme Court in People v. Campos (S049828), review granted December 21, 1995 [38 Cal.App.4th 1669, 45 Cal.Rptr.2d 706];  People v. Bailey (S048808), review granted November 16, 1995 [37 Cal.App.4th 871, 44 Cal.Rptr.2d 205];  People v. Petty (S048702), review granted November 2, 1995 [37 Cal.App.4th 730, 44 Cal.Rptr.2d 34].

FRED WOODS, Associate Justice.

ARNOLD GOLD, J.,* concurs.