PEOPLE v. DAWSON (1994)

Donald Kenneth Dawson appeals from the judgment of the Superior Court convicting him of kidnapping for robbery (Penal Code, § 209, subdivision (b);  count 1),¹ and robbery (§ 211;  count 2), each with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)).  In addition, he has filed a petition for writ of habeas corpus, alleging he received constitutionally inadequate representation by counsel at his trial.

Dawson was originally charged by information with kidnapping for robbery, robbery, and attempted murder (§ 664/187;  count 3).   Count 3 was dismissed prior to trial on the People's motion.²  Dawson was tried by a jury on counts 1 and 2, and in count 2, was convicted as charged of robbery.   The jury was unable to reach a verdict on count 1, and a mistrial was declared.   Upon retrial on that count, Dawson was convicted as charged of kidnapping for the purpose of robbery.   He was sentenced to life in the state prison on count 1, kidnapping for the purpose of robbery, plus an additional upper term of five years for the personal use of a firearm in that offense.   Punishment on count 2 was stayed under section 654.

In the published portion of this opinion, we conclude the court properly instructed the jury regarding the prosecution's burden of proof and properly imposed an aggravated sentence for the gun use enhancement in count 1.   In the unpublished portion, we find Dawson received less than half the presentence custody credits to which he was entitled and that the abstract of judgment must be modified to reflect the correct credits.   However, we find no other errors by the court in the proceedings, and we find that Dawson was competently represented by trial counsel.   We therefore affirm the conviction and deny Dawson's petition for a writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution's Case.

On the evening of March 25, 1990, at 9:00 p.m., Russell Thomas, his wife and their neighbors were returning to their home at 10608 First Avenue in Inglewood, California, from a trip to Palm Springs in Ms. Thomas's 1989 Cadillac Seville.   Thomas's wife and neighbors got out of the car and went into Thomas's home, while Thomas drove the car into the garage.

As Thomas drove into the garage, he noticed a person he later identified as Dawson standing outside the car window holding a large barreled shotgun.   Dawson ordered Thomas from the car and demanded money and the keys to Thomas's other car, a Sterling, which was also parked in the garage.   Dawson ordered Thomas to lie on the garage floor, but then changed his mind and ordered him to get back into the driver's seat of the Cadillac.   Dawson then sat in the passenger seat, pointed the shotgun at Thomas's right side, and ordered Thomas to back out of the garage and head north on First Avenue.

At approximately 103rd Street, Dawson ordered Thomas from the car, but Thomas said he was disabled and had difficulty walking.   Dawson then had Thomas drive in a large circle as far north as Century Boulevard, then back to 103rd Street by way of St. Andrews Place.   At the intersection of St. Andrews and 103rd Street, Dawson had Thomas stop, said he would return the car in a couple of days, and told Thomas not to call the police, or he would blow up his house.   He then ordered Thomas out of the car, and Thomas began to walk home.   The entire incident lasted approximately 10 to 15 minutes.

When Thomas arrived home, he told his wife what had happened, immediately reported the incident to the police, and described the assailant as a light complected person with straight black hair worn in a pony tail.   He further described the kidnapper as being approximately five feet, eight inches tall, “on the slim side,” and wearing a black jacket and a stocking cap.

Thomas's car was recovered the next day, March 26, by the Los Angeles Police Department.   Los Angeles Police officer Randall Cochran responded to a detective's call for assistance regarding a Cadillac Seville with the vehicle license number of ANNIE B, which was parked near the intersection of 101st Street and Main Street in the City of Los Angeles.   The car was first observed unoccupied at 3:30 p.m.   At 7:00 p.m., officer Cochran and his partner observed it pull away from the curb, driven by a person generally matching the description Thomas gave of the person who stole his car.   A high-speed chase ensued, which ended when the Cadillac struck a parked car and stopped.

After striking the parked car, Dawson got out of the Cadillac, ran, and was captured by officer Michael Carradine on a porch at 331 East 101st Street.   Shortly thereafter, Thomas went to the Inglewood Police station, where he identified Dawson as the kidnapper and robber.

B. The Defense.

Testifying in his own defense, Dawson admitted he was driving Thomas's Cadillac on March 26, 1990.   He said the car was a “neighborhood car,” which he was allowed to use on condition that he accept responsibility for a grand theft auto if he were caught in it.   He denied kidnapping or robbing Thomas and testified he was with his girlfriend selling drugs at the intersection of 78th Street and Hoover at the time of the kidnapping.

Based upon all of the foregoing, the jury at Dawson's first trial convicted him of robbery, but was unable to reach a verdict on the charge of kidnapping.   At the second trial, based upon substantially the same evidence, the jury convicted Dawson of kidnapping for the purpose of robbery, and he was thereafter sentenced to state prison.   His timely appeal followed, as did his petition for writ of habeas corpus.

II. CONTENTIONS

In his direct appeal, Dawson contends that:  (1) the jury was improperly instructed regarding the prosecution's burden of proof;  (2) the trial court improperly aggravated the section 12022.5, subdivision (a), gun use enhancement;  (3) his presentence custody credits were incorrectly calculated.   On habeas corpus, he contends he received inadequate representation by trial counsel.

III. DISCUSSION

A. Issues on Appeal.1. The Jury Was Adequately Instructed Regarding The Prosecution's Burden of Proof.

Dawson contends the instruction on reasonable doubt, CALJIC 2.90, which was read to the jury, is constitutionally flawed.   We cannot agree.

The language in CALJIC 2.90 is derived from Penal Code section 1096, which defines reasonable doubt as “․ 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 jurors in that condition that they can not say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”   The California Supreme Court has repeatedly concluded CALJIC 2.90 does not allow a finding of guilt based on a degree of proof below that required by the due process clause of the Constitution.  (See, e.g., People v. Johnson (1992) 3 Cal.4th 1183, 1234–1235, 14 Cal.Rptr.2d 702, 842 P.2d 1;  People v. Jennings (1991) 53 Cal.3d 334, 385–386, 279 Cal.Rptr. 780, 807 P.2d 1009.)   In addition, the United States Supreme Court has recently held that the instruction satisfies Constitutional requirements.  (Victor v. Nebraska (1994) 511 U.S. 1, –––– – ––––, 114 S.Ct. 1239, 1247–1249, 127 L.Ed.2d 583, 596–597.)

In Victor v. Nebraska, supra, the high court considered challenges to reasonable doubt instructions used in the states of Nebraska (511 U.S. at pp. –––– – ––––, 114 S.Ct. at pp. 1248–1251, 127 L.Ed.2d at pp. 597–600.) and California (Id. at pp. –––– – ––––, 114 S.Ct. at pp. 1243–1248, 127 L.Ed.2d at pp. 591–597.)   In the section of the opinion on California's instruction, the court expressed concern that the phrase, “moral certainty,” may not be properly understood by juries and stated that the court does not approve of the phrase.  (Id. at p. ––––, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 597.)   Nevertheless, in view of other language in California's instruction, and in view of other instructions regarding the prosecution's burden of proof and the manner of evaluating evidence, the justices unanimously concluded that the ambiguous phrase does not reasonably suggest a standard of proof lower than due process requires, and does not allow conviction based upon factors other than the evidence presented by the government.  (Id. at pp. –––– – ––––, 114 S.Ct. at pp. 1247–1249, 127 L.Ed.2d at pp. 596–597.)

As the California Supreme Court has observed, CALJIC 2.90 does not suffer from the constitutional flaw that characterized the instruction which the United States Supreme Court, in Cage v. Louisiana (1990) 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339, found to fall short of constitutional requirements.   The instruction at issue in Cage v. Louisiana, supra, defined reasonable doubt as a “grave uncertainty” and an “actual substantial doubt.”  (498 U.S. at p. 40, 111 S.Ct. 328 at p. 329.)   The United States Supreme Court found that those characterizations of the standard, considered together with a reference to “moral certainty” rather than evidentiary certainty, could reasonably have been interpreted by a juror to allow conviction based on an unconstitutionally low degree of proof.  (Id. at p. 41, 111 S.Ct. at p. 329.)

Although California's reasonable doubt instruction refers to “moral certainty,” it does not define reasonable doubt as “grave” or “substantial” doubt, but only as an absence of an abiding conviction.   In addition, the California instruction requires that such “moral certainty” as will justify a finding of guilt must follow “the entire comparison and consideration of all the evidence.”  (§ 1096.)   In Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. 1239, the United States Supreme Court concluded that this characterization of the prosecution's burden satisfies constitutional standards and neither allows a criminal conviction upon an insufficient standard of proof nor permits conviction on any basis other than the evidence presented at trial.  (511 U.S. at pp. –––– – ––––, 114 S.Ct. at pp. 1247–1249, 127 L.Ed.2d at pp. 596–597.)

 Although principles of due process forbid conviction of a crime on any lesser standard than proof beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368), the Constitution prescribes no particular form of words in advising the jury of the government's burden of proof.   The only requirement is that the language of an instruction must not be reasonably likely to be interpreted by jurors as allowing conviction based on a degree of proof below that required by the Due Process Clause.  (Victor v. Nebraska, supra, 511 U.S. at pp. –––– – ––––, 114 S.Ct. at pp. 1247–1249, 127 L.Ed.2d at pp. 596–597;  Estelle v. McGuire (1991) 502 U.S. 62, ––––, 112 S.Ct. 475, 482, 116 L.Ed.2d 385, 399.)   The definition of reasonable doubt which is embodied in Penal Code section 1096 and CALJIC 2.90, and which was imparted to the jury in this case, satisfies the standards of due process.  (Victor v. Nebraska, supra, 511 U.S. at p. ––––, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 597;  People v. Johnson, supra, 3 Cal.4th at pp. 1234–1235, 14 Cal.Rptr.2d 702, 842 P.2d 1.)   Reversal is thus not required or justified.

2. The Trial Court Relied Upon a Proper Basis in Imposing An Aggravated Term for the Gun Use Enhancement in Count 1.

On count 1, kidnapping for the purpose of robbery, Dawson was sentenced to life in the state prison plus an additional upper term of five years for the personal use of a firearm.   The court stated two reasons for selecting the upper term for the enhancement:  first, Dawson showed no remorse for the crime, and secondly, his crimes were of increasing seriousness.   Dawson contends the trial court failed to state an appropriate basis for imposing the aggravated term, because the stated reasons for such term were not “directly related” to the fact that a gun was used, as required by rule 428(b) of the Rules of Court.³

 We would tend to agree that lack of remorse does not bear a direct relationship to gun use.   However, as the People aptly point out in their brief, the increasing seriousness of Dawson's crimes consists essentially of the crimes' increasingly violent nature, beginning with second degree burglary, progressing through a battery upon a security guard, and culminating in a kidnap-robbery at gunpoint.⁴  Under these particular facts, a direct relationship exists between the increasing seriousness of Dawson's crimes and the fact that he used a gun in the most recent and most serious of them.

Dawson relies for the contrary contention upon People v. Edwards (1993) 13 Cal.App.4th 75, 16 Cal.Rptr.2d 572.   In Edwards the trial court imposed an upper term on a gun use enhancement, stating as reasons that the defendant was on probation when he committed the offense, and his history of criminal activity was of increasing seriousness.  (13 Cal.App.4th at p. 78, 16 Cal.Rptr.2d 572.)   The Court of Appeal found those factors were not directly related to the fact of gun use.  (Id. at p. 79, 16 Cal.Rptr.2d 572.) ⁵

The Edwards court observed that the aggravating circumstances relied upon by the trial court were “facts relating to the defendant,” as listed in subdivision (b) of rule 421, which lists facts in aggravation of an underlying offense.   Those circumstances thus could not “relate directly to the fact giving rise to the enhancement.”   The court reasoned that circumstances in aggravation that “relate directly to the fact giving rise to the enhancement,” within the meaning of rule 428(b), logically must include only facts analogous to “facts relating to the crime,” as set forth in subdivision (a) of rule 421.  (13 Cal.App.4th at p. 79, 16 Cal.Rptr.2d 572;  see also People v. Dixon (1993) 20 Cal.App.4th 1029, 1030, 25 Cal.Rptr.2d 208.)⁶

 We agree that neither a defendant's probationary status nor a record of increasingly serious convictions, without more, relates directly or necessarily to gun use.   However, we do not agree with the broader generalization in Edwards, which was not necessary to the result in the case and was thus dictum, that no circumstance “relating to the defendant” as defined in rule 421(b) can be “directly related” to gun use.   Nor do we agree that a defendant's probationary status or, as here, his criminal history can never be a circumstance directly related to gun use.   Rather, in our view, the existence or nonexistence of such a direct relationship depends upon particular facts concerning the defendant's probationary status or criminal history.

Initially, it seems reasonable that circumstances which “relate directly to the fact giving rise to [an] enhancement,” as used in rule 428(b) should parallel circumstances “relating to [a] crime,” as used in rule 421(a).   However, upon examination, the circumstances listed in rule 421(a) cannot provide even a generally reliable guide to the kinds of circumstances that reasonably should be usable to aggravate a gun use enhancement under rule 428(b).   This conclusion necessarily follows once we observe, for example, that several “facts relating to the crime” which are included in rule 421(a) bear little or no relation to gun use.   These include the circumstances, among others, that the defendant induced others to participate in the crime (rule 421(a)(4)), the defendant induced a minor to commit or assist in the crime (rule 421(a)(5)), and the crime involved an attempted or actual taking or damage of great monetary value (rule 421(a)(9)).

At the same time, the facts “relating to the defendant” which are listed in rule 421(b) include some circumstances which bear a substantial relationship to the defendant's use of a gun on a particular occasion.   For example, the fact that a defendant has engaged in violent conduct which indicates a serious danger to society (rule 421(b)(1)) directly, inherently and manifestly relates to the extreme danger to life which is created when a gun is used in the commission of a crime.   Likewise, as we have observed above, where a defendant has committed increasingly serious crimes (rule 421(b)(2)), that fact is directly related to gun use if the basis for finding the later crimes more serious is the fact that they involve increasing violence, including the use of guns.

 Rather than the general and rigid rule suggested in Edwards, supra, we believe a fact specific inquiry is appropriate in determining whether a potential circumstance in aggravation of any enhancement is “directly related” to the fact giving rise to the enhancement.   If, under the totality of the circumstances, an aggravating factor bears a substantial logical relationship to the fact giving rise to the enhancement, then rule 428(b) is satisfied.

As we have observed above, Dawson's criminal record consists of crimes that were increasingly serious precisely because they were increasingly violent, culminating in a kidnap-robbery at gunpoint.   Thus the use of the increasing seriousness of Dawson's crimes to justify an upper term on the gun use enhancement in this case did not run afoul of rule 428(b).   Dawson was properly sentenced on the enhancement.

 Finally, even if we were persuaded that both of the court's stated reasons for imposing the upper term on the enhancement were improper, there would be no occasion to remand the case for resentencing.   A case must be remanded for resentencing only if it is reasonably probable that the court will impose a different sentence upon remand.  (People v. Dunnahoo (1984) 152 Cal.App.3d 561, 578–579, 199 Cal.Rptr. 796.)   Here, there is no such reasonable probability.

Rule 428(b) permits an upper term on an enhancement if any aggravating circumstance exists which is directly related to the fact giving rise to the enhancement.   Here, such a circumstance plainly exists.  “Personal use” of a gun is established by conduct ranging from momentarily brandishing the gun to actually firing it and causing injury or death.   Within that range of conduct, Dawson's use of the gun in this case was of an aggravated kind, where instead of merely taking Thomas's car at gunpoint, Dawson ordered Thomas back into the car, then held the gun to Thomas's side while requiring him to drive the vehicle in traffic for a substantial distance, creating a serious and completely senseless danger both to Thomas and to others.   This circumstance rendered Dawson's entire course of conduct one involving “great violence [or] threat of great bodily harm ․,” (Rule 421(a)(1)), in a significantly greater degree than would be established by the minimal conduct necessary to establish personal use of a firearm.

Where the above circumstance is available and can be relied upon in any resentencing, and the record of the original sentencing plainly shows the court intended to impose the greatest possible sentence, we see no reasonable likelihood that Dawson would obtain a lighter sentence upon remand.   There is thus no occasion to remand the matter.⁷

3. Dawson Was Awarded Insufficient Pre–Sentence Custody Credits.**

B. Contention on Habeas Corpus.***

IV. DISPOSITION

The abstract of judgment is ordered modified to reflect an award of 951 days of presentence custody credits, comprised of 635 days of actual custody and 316 days of good time-work time.   As so modified, the judgment of conviction is affirmed.   The petition for writ of habeas corpus is denied.

FOOTNOTES

1.   Unless otherwise noted, further statutory references are to the Penal Code.

2.   The complaint filed in the municipal court charged Dawson and one Eddie Walker with several offenses.   It was charged that on March 25, 1990, Dawson alone committed a kidnap and robbery (Counts 1 and 2), in which he took a white Cadillac, and that on March 19, 1990, Dawson alone committed a drive-by shooting (Count 3).   Dawson and Walker were charged with a drive-by shooting of three victims on March 25, 1990 (Counts 4–6), and Walker was charged with 2 additional shootings on December 29, 1989 (Counts 7 and 8).   A separate complaint apparently charged one Bobby Glenn McClelland with also participating in the March 25 shootings and with one or two shootings in December of 1989.At the preliminary hearing, a car matching the description of the car taken in the March 25 kidnap-robbery was identified by the victims of the March 25 shootings as the car used in those shootings.   The kidnap-robbery victim and the victim of the March 19 shooting identified Dawson as their assailant.   The other shooting victims identified only Walker and McClelland.   Dawson was thus charged in the information with kidnapping, robbery, and one count of attempted murder.   Walker and McClelland were charged with four counts each of attempted murder.   When the attempted murder charge as to Dawson was dismissed, Dawson's trial was also severed from that of Walker and McClelland.

3.   Paragraph 2 of rule 428, subdivision (b) provides in pertinent part as follows:  “The upper term may be imposed for an enhancement only when there are circumstances in aggravation that relate directly to the fact giving rise to the enhancement․”

4.   According to the probation officer's report, Dawson was adjudicated a ward of the juvenile court for commission of second degree burglary in 1981 and was released to his parents or guardians.   In 1985, he was committed to the Youth Authority for a probation violation, the basis of which was apparently a new burglary.   In 1986, he was paroled from the Youth Authority.   In 1987, he was convicted of a misdemeanor battery for what he described as hitting a security guard, and was sentenced to 60 days in the county jail.

5.   The court did not remand the case for resentencing, however.   The Court found that one of the two circumstances which supported an aggravated term on the underlying offense—infliction of great bodily harm—was directly related to gun use.   That circumstance was thus available to justify the upper term on the enhancement without disturbing the sentence on the underlying offense.   Given the existence of one circumstance which could properly be used to select the upper term for the enhancement and the absence of any mitigating factors, the Court of Appeal found it was not reasonably probable that the sentencing court would have chosen a lesser sentence on the enhancement had it known that all of its stated reasons for selecting the upper term were improper.  (13 Cal.App.4th at pp. 79–80, 16 Cal.Rptr.2d 572.)

6.   In Dixon, supra, the same court which decided Edwards found a verbal threat to kill the victims was a circumstance directly related to gun use and thus could be used as a basis for imposing an aggravated term on a gun use enhancement.   However, the court remanded the case for resentencing, because the sentencing court had failed to state any reason for imposing the defendant's indeterminate and determinate terms consecutively and had relied upon gun use both to impose the enhancement and to impose a consecutive term for the second of two robberies.  (20 Cal.App.4th at pp. 1038–1039, 25 Cal.Rptr.2d 208.)A petition by the appellant for review was denied by the Supreme Court in Edwards;  a petition by the People for review was denied in Dixon.   However, the Supreme Court has granted review in two other cases which concern the interpretation and application of rule 428(b).   In People v. Hall (S033749, petition for review granted August 26, 1993), formerly at 16 Cal.App.4th 72, the Court of Appeal ordered the defendant's sentence on a gun use enhancement modified from the upper to the middle term, because the sole factor cited by the sentencing court in imposing the upper term was the defendant's parole status, a circumstance which the court found related to the defendant himself, not to his use of a gun.   In People v. Waltower (S038297, review granted April 28, 1994), formerly at 21 Cal.App.4th 1576, the Court of Appeal, without referring to Hall, rejected the defendant's challenge to an upper term on a gun use enhancement, which was imposed, as in Hall, on the basis of the defendant's parole status.   The court found the defendant's parole status was directly related to gun use, because a parolee is necessarily a convicted felon, is thus prohibited from possessing a handgun, and could be separately punished for such possession under section 12021.   The court therefore affirmed the defendant's conviction and sentence.   Proceedings in Hall and Waltower are presently pending before the Supreme Court.

7.   Because we have decided the sentencing court relied upon a proper aggravating factor under rule 428(b), we need not address the People's contention that the rule is invalid.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

CROSKEY, Associate Justice.

KLEIN, P.J., and KITCHING, J., concur.