People v. Jones CA2/8 ( 2020 )

Filed 8/26/20 P. v. Jones CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B294348
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA072186)
v.
JEREMIAH LAMAR JONES et
al.,
Defendants and Appellants.
APPEAL from the judgment of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Affirmed in part;
remanded to correct sentencing errors.
Valerie G. Wass, under appointment by the Court of Appeal,
for Defendant and Appellant Jeremiah Lamar Jones.
Jeralyn Keller, under appointment by the Court of Appeal, for
Defendant and Appellant Davion Keshaun Hawkins.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendants and appellants Jeremiah Lamar Jones and
Davion Keshaun Hawkins appeal from their convictions by jury of
multiple counts of attempted robbery and assault with a firearm.
Defendants both argue there is insufficient evidence supporting
their convictions as aiders and abettors in two attempted robbery
incidents that occurred on the same evening at two fast food
restaurants in the city of Lancaster. Defendant Hawkins also
raises claims of evidentiary error and prosecutorial misconduct.
Both defendants further contend the trial court made various
sentencing errors.
We conclude the one-year enhancement pursuant to Penal
Code section 667.5, subdivision (b) must be stricken from defendant
Jones’s judgment of conviction, and the gang enhancement
pursuant to section 186.22 must be stricken as to all three of
defendant Hawkins’s attempted robbery convictions. We also find
the amount of certain mandatory fees must be corrected, as well as
several clerical errors in Hawkins’s abstract of judgment. We
otherwise affirm the judgments of conviction as to both defendants.
FACTUAL AND PROCEDURAL BACKGROUND
Hawkins and Jones were charged by amended information
with multiple felonies along with a third defendant, Delvon
Foldgers. Just before jury selection, Foldgers entered into a plea
agreement with the prosecution. He is not a party to this appeal.
The case proceeded to trial in October 2018 as against Hawkins and
Jones before separate juries on the following charges: attempted
second degree robbery of Miguel E. (Pen. Code, § 211, § 664;
count 13); attempted second degree robbery of Matthew M. (§ 211,
§ 664; count 14); assault with a semiautomatic firearm of Miguel E.
(§ 245, subd. (b); count 15); assault with a semiautomatic firearm of
Matthew M. (§ 245, subd. (b); count 16); attempted second degree
robbery of Yessenia M. (§ 211, § 664; count 17); attempted second
2
degree robbery of Blanca S. (§ 211, § 664; count 18); attempted
second degree robbery of Claudia B. (§ 211, § 664; count 19); assault
with a semiautomatic firearm of Yessenia M. (§ 245, subd. (b);
count 20); assault with a semiautomatic firearm of Blanca S. (§ 245,
subd. (b); count 21); and, assault with a semiautomatic firearm of
Claudia B. (§ 245, subd. (b); count 22).
It was further alleged as to all counts that the offenses were
committed for the benefit of, at the direction of, or in association
with the Mona Park Crips, a criminal street gang, within the
meaning of Penal Code section 186.22. As to the attempted robbery
counts, it was also alleged that a principal personally used a
firearm in the commission of the offenses. (§ 12022.53, subds. (b) &
(e).) As to Jones, a prior conviction allegation (carrying a concealed
weapon) within the meaning of section 667.5, subdivision (b) was
alleged.
The testimony at trial established the following facts material
to our discussion.
On the evening of September 7, 2017, Miguel1 was working a
shift with his coworker, Matthew, at a Subway restaurant in the
city of Lancaster. Sometime after 7:30 p.m., Miguel walked from
the back room into the main dining area of the restaurant just as a
male, wearing a hat and black T-shirt walked in. Miguel was a few
feet from the counter where Matthew was standing by the cash
register. The man immediately pulled a gun from his shorts and
pointed it at Miguel. Miguel saw the man “cock” the gun. Fearing
he would be shot, Miguel fled to the back room, as did Matthew.
Miguel and Matthew called 911 using Miguel’s cell phone. The 911
1 We refer to the victims and witnesses only by the first names
to protect their identity.
3
call was played for the jury. Miguel identified Foldgers from a six-
pack photographic lineup (six-pack) as the man who pointed the
gun at him.
About a mile away, Claudia was working at the Louisiana
Fried Chicken restaurant with two coworkers, Yessenia and Blanca.
Shortly before 8:00 p.m., Claudia was in the main room of the
restaurant and Yessenia was at the cash register behind the
counter. Claudia saw a male dressed all in black and wearing a hat
enter the restaurant. He was acting “aggressively.” He ran
towards Yessenia, jumped over the counter and held a gun to
Yessenia’s head. Claudia was frightened and ran into the back
room. She later identified Foldgers from a six-pack as the man who
entered the restaurant with a gun.
Blanca recalled being on her break in the back room when she
heard Yessenia call out to her from the front of the restaurant.
Yessenia sounded nervous so Blanca immediately walked up front.
Claudia was already there. Blanca saw a man behind the counter,
grabbing Yessenia by the neck and holding a gun to her head.
When the man saw Blanca, he said “give me the fucken money.”
Blanca later identified Foldgers in a six-pack as the man with the
gun.
Yessenia also testified that a man dressed in black entered
the restaurant and came directly at her pointing a gun. He pulled
something back on the gun which she later learned was called
“racking the gun.” The man then jumped over the counter and
demanded she give him the money. He yelled at Claudia and
Blanca to stay back or he would shoot, or words to that effect.
Yessenia tried to open the register but the man had the gun pointed
at her head and kept shoving her so she was unable to open it.
Yessenia testified she was scared but wanted to give him the money
hoping he would leave. The man seemed frustrated at Yessenia’s
4
inability to open the register, pushed her down and fled. Yessenia
called 911 after he left. The 911 call was played for the jury.
Surveillance video recovered from the two restaurants as well
as other nearby businesses was played for the jury. The
surveillance tapes showed a silver sedan with a black hood, black
rims and black right fender driving near the Subway just before the
incident. Footage from inside the Subway showed Foldgers
entering the restaurant and the incident unfolding in a manner
substantially similar to Miguel’s testimony of the event. Additional
footage showed the same car, approximately 15 minutes later,
driving slowly in the parking lot in front of the Louisiana Fried
Chicken restaurant and eventually backing into a parking space.
Foldgers and Hawkins got out of the car and walked back and forth
in front of the store fronts for a few minutes. During this time,
Hawkins was talking almost continually on a cell phone. Footage
from inside the restaurant showed Foldgers eventually walking into
the restaurant, leaping over the counter and holding a gun to
Yessenia’s head substantially consistent with her testimony and
that of her coworkers. Finally, surveillance video from inside a
nearby liquor store about 30 to 40 minutes thereafter showed Jones,
Hawkins and Foldgers arriving together, making a few purchases
and then leaving together in the same silver and black sedan.
Three days after the attempted robberies, deputy sheriff
Alberto Rodriguez was on patrol in Lancaster. He saw a silver
Honda with a black hood, black rims and a black right front fender
that matched the description of the vehicle suspected of being
involved in the robberies and pulled it over. Jones was driving.
Candace C. (his longtime girlfriend) and his sister were passengers
in the car. Deputy Rodriguez arrested Jones on an outstanding
warrant for driving on a suspended license. He allowed Candace
and Jones’s sister to leave with the Honda and drive home.
5
Jones’s recorded interview with Detective Daniel Ament was
played for his jury (the blue jury). Jones admitted the Honda
belonged to him and his girlfriend. He said the two-tone silver and
black paint was the result of putting on replacement parts after a
tire blew off and damaged the car. Jones denied being a gang
member and denied being at the Subway on the day of the incident.
However, when told the Honda had been captured on surveillance
video, Jones eventually acknowledged the distinctive car in the
video was his and admitted he had been driving in the alley near
the Subway. Jones said he and Hawkins, who is his half brother,
were out looking for the home of Hawkins’s girlfriend. Hawkins got
out of the car at one point but just to urinate. Jones also admitted
having gone to the Louisiana Fried Chicken restaurant that day but
not at night when the robbery happened. Detective Ament and his
partner explained that surveillance footage showed the Honda was
at the scene and two people getting out of the car. Jones then said
they had picked up one of Hawkins’s friends (Foldgers) and those
two did get out of the car at some point but just to buy cigarettes.
Jones denied knowing Foldgers. He identified Hawkins as the
person depicted in the surveillance footage talking on a cell phone.
Candace testified that in 2017 she and Jones lived together
with her children north of Lancaster in California City. At the
time, she owned a Honda Civic that Jones sometimes drove. The
Honda was silver with a black hood, black rims and a black right
front fender. She said Jones was at home with her on the night of
September 7, 2017. Candace denied telling Detective Ament that
Jones left the house that night in the Honda to visit his sister and
did not come home until around 11:30 p.m.
The parties stipulated to the fact the Mona Park Crips are a
criminal street gang and its primary activities include robberies,
attempted robberies, and assaults with and without firearms.
6
Defendants did not concede their membership in the gang.
Detective Laura Perales testified as the prosecution’s gang expert.
Among other things, she testified to her opinion that defendants
were active members of the Mona Park Crips. Detective Perales
identified various photographs posted on Jones’s and Hawkins’s
Facebook pages, including pictures of the two of them posing with
Foldgers and throwing gang signs. Another posted photograph and
comment on Hawkins’s page included the words “Mona for Life” and
“2$$.” Detective Perales stated her opinion that Mona for Life
meant Hawkins was claiming his gang for life and 2$$ represented
211, the Penal Code section for robbery.
Deputy Steven Crosby testified that in February 2016, a little
over a year and a half before the charged incidents, he pulled
Hawkins over for a traffic stop in the city of Lancaster. Hawkins
was wearing two blue bandanas tied together around his neck. He
told Deputy Crosby he was from Mona Park in Compton. Foldgers
was a passenger in the vehicle. A loaded semiautomatic firearm
was found in the front passenger side of the vehicle within reach of
Hawkins who was driving. When asked about the gun, Hawkins
denied knowledge of it but later admitted it was his. Deputy
Crosby said Hawkins told Foldgers he should have taken
responsibility for the gun and that “they were going to have words”
about it. According to Deputy Crosby, Foldgers “appeared
intimidated” by Hawkins.
The jury convicted Jones on three counts of attempted second
degree robbery (counts 13, 14 & 17) and two counts of assault with
a firearm (counts 15 & 20) and acquitted him of the remaining
counts (counts 16, 18, 19, 21 & 22). The jury found not true all of
the special allegations. In a bifurcated proceeding, Jones admitted
his prior conviction for carrying a concealed weapon.
7
The court sentenced Jones to state prison for an aggregate
sentence of 12 years eight months calculated as follows: a nine-year
high term for assault with a firearm on count 15 (Miguel), plus a
consecutive one-year prison prior; a consecutive eight-month term
(one-third the midterm) for attempted robbery on count 14
(Matthew); and a consecutive two-year term (one-third the
midterm) for assault with a semiautomatic firearm on count 20
(Yessenia). The court imposed and stayed sentence on counts 13
and 17 and awarded Jones 745 days of presentence custody credits.
The court imposed a restitution fine in the amount of $3,600
on the base term and imposed and stayed a parole revocation fine in
the same amount. The court further imposed a criminal conviction
fee of $30 and a court security fee of $40. The court stated that all
fees should be collected from prison earnings with restitution being
paid first. The abstract of judgment states a $200 court operations
fee and $150 criminal conviction fee were imposed.
The jury acquitted Hawkins of the charges arising from the
incident at the Subway and found him guilty of all six charges
arising from the incident at the Louisiana Fried Chicken restaurant
(counts 17 through 22). The jury found true the gang allegation as
to all six counts and, as to the three attempted robbery counts,
found true the allegation that a principal used a firearm in the
commission of the offenses.
The court sentenced Hawkins to state prison for an aggregate
sentence of 22 years calculated as follows: a nine-year high term for
assault with a firearm on count 20 (Yessenia), plus a consecutive
five-year term for the gang enhancement; and, consecutive four-
year terms for attempted robbery on counts 18 and 19 (Blanca and
Claudia). The court imposed and stayed sentence on counts 17, 21
and 22 and awarded defendant 504 days of presentence custody
credits.
8
Hawkins stipulated to a direct restitution award to Yesenia in
the amount of $1,416.42. The court imposed a restitution fine in
the amount of $6,600 on the base term and imposed and stayed a
parole revocation fine in the same amount. The court ordered “a
criminal conviction fee of $30” and “a court security fee of $40” and
stated that all fees should be collected from prison earnings with
restitution being paid first. The abstract of judgment states a
$120 court operations fee and a $90 criminal conviction fee were
imposed.
This appeal followed.
DISCUSSION
1. The Substantial Evidence Claims
Defendants each raise a substantial evidence argument. Both
defendants were found guilty as aiders and abettors of codefendant
Foldgers. “ ‘ “Whether [a] defendant aided and abetted the crime is
a question of fact, and on appeal all conflicts in the evidence and
reasonable inferences must be resolved in favor of the judgment.” ’ ”
(People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)
Reviewing the record according to this familiar standard, we
conclude there is ample evidence supporting the judgments of
conviction as to both defendants.
a. Defendant Jones—counts 13 & 14
Jones concedes the evidence is sufficient to support a
conviction for aiding and abetting the assaults with a firearm
committed by Foldgers at the Subway restaurant. He argues
however that the evidence does not rise to the level of showing he
assisted an attempted robbery of either Subway employee. Jones
contends there is no credible evidence Foldgers committed anything
more than an assault by brandishing his gun inside the restaurant
because he never fired the gun, never demanded or otherwise
attempted to take any money or property from the Subway
9
employees, never admitted his intent was to rob the restaurant and
he fled the scene immediately after completing the assaults. We are
not persuaded.
There was ample evidence codefendant Foldgers attempted to
rob the Subway restaurant. To be guilty of an attempt, the
perpetrator must have the requisite intent and take a direct, but
ineffectual act to commit the offense. (People v. Anderson (1934)
1 Cal.2d 687, 689-690 [a direct step in committing the offense is
established by any act or acts “which would end in the
consummation of the particular offense unless frustrated by
extraneous circumstances”].) “[O]ther than forming the requisite
criminal intent, a defendant need not commit an element of the
underlying offense.” (People v. Medina (2007) 41 Cal.4th 685, 694,
italics added.) Neither a completed assault nor a completed theft is
necessary to support a conviction for attempted robbery. (Id. at
pp. 694-695.)
Foldgers entered the Subway restaurant brandishing a
firearm and approached Miguel who was standing just a few feet
from the counter and the cash register. When Miguel immediately
fled to a back room along with his coworker, Foldgers then fled the
scene. This evidence and the reasonable inferences therefrom, as
well as the gang evidence from Detective Perales, supports the
jury’s determination that Foldgers took a direct step in attempting
the robbery but fled after he was thwarted in accessing the register
when the employees immediately ran and hid in the back room.
(See, e.g., People v. Vizcarra (1980) 110 Cal.App.3d 858, 862
[evidence showing the defendant approached a liquor store carrying
a rifle, tried to hide on a pathway adjacent to the store when
observed by a customer, and then fled without entering the store
deemed sufficient acts to support conviction for attempted robbery].)
10
b. Defendant Hawkins—counts 17 through 22
Hawkins argues there was insufficient evidence he aided and
abetted Foldgers’s crimes at the Louisiana Fried Chicken
restaurant. Hawkins contends that mere presence at the scene or
membership in a gang are insufficient to support aiding and
abetting liability.
We have no quarrel with the general proposition that mere
presence at the scene of a crime, failure to prevent a crime or gang
membership generally are insufficient factors, standing alone, to
support aiding and abetting liability. (See generally, People v.
Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) However, Hawkins
mischaracterizes the evidence presented below.
To be held liable as an aider and abettor, one need not
personally participate in the elements of the crime. (People v.
Morante (1999) 20 Cal.4th 403, 433.) It is sufficient if, knowing of
the direct perpetrator’s unlawful intent, one assists or encourages
the commission of the crime. (Ibid.) “ ‘Intent is rarely susceptible
of direct proof and usually must be inferred from the facts and
circumstances surrounding the offense.’ ” (People v. Johnson (2019)
32 Cal.App.5th 26, 58 (Johnson).) And, it is well established that
presence at the scene, companionship, and conduct before and after
the offense are relevant factors in resolving the question of aiding
and abetting liability. (Campbell, supra, 25 Cal.App.4th at p. 409
[presence near one who robs victims in order to intimidate, divert
suspicion or watch out for others “is a textbook example of aiding
and abetting”].)
Here, all of these factors were present. Hawkins was
captured in surveillance video arriving with Foldgers and walking
back and forth, looking over his shoulder and talking on a cell
phone for several minutes before Foldgers entered the restaurant—
actions which could reasonably be construed as consistent with
11
acting as a lookout or to divert suspicion. The evidence also
established that Hawkins left with Foldgers in the same Honda in
which they arrived immediately after the crimes were committed.
Additional video footage shows Hawkins a short time later, still in
the company of Foldgers and Jones, as they arrived at a liquor store
to make some purchases. This evidence was corroborated by the
Facebook evidence and other gang evidence attested to by Detective
Perales that showed an ongoing relationship between Hawkins,
Jones and Foldgers and their membership in a gang in which it was
stipulated that the commission of robberies and assaults were their
primary activities. The evidence, taken in its totality, was
sufficient to support the jury’s determination that Hawkins aided
and abetted Foldgers’s crimes at the Louisiana Fried Chicken
restaurant. (See, e.g., Nguyen, supra, 61 Cal.4th at p. 1055 [the
defendant’s presence in a car with fellow gang members, staring at
rival gang members as they drove by shortly before another vehicle
occupant opened fire, and testimony from gang expert about
ongoing gang feud sufficient to support aiding and abetting liability
for attempted murder]; Johnson, supra, 32 Cal.App.5th at pp. 59-60
[video footage of person serving as a lookout who matched the
defendant’s physical characteristics along with cell phone records
showing involvement with the perpetrator at the relevant time
ample evidence supporting conviction for murder as aider and
abettor].)
2. Admission of the Uncharged Prior Act
Hawkins contends the trial court committed evidentiary error
in admitting, pursuant to Evidence Code section 1101,
subdivision (b), the testimony of Deputy Crosby about the 2016
traffic stop that occurred a little more than a year and a half before
the charged incidents. We disagree.
12
Evidence Code section 1101, subdivision (b) provides in
relevant part that “[n]othing in this section prohibits the admission
of evidence that a person committed a crime, civil wrong, or other
act when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake
or accident . . .) other than his or her disposition to commit such an
act.” A trial court’s ruling admitting evidence of a prior uncharged
act under section 1101, “being essentially a determination of
relevance, is reviewed for abuse of discretion.” (People v. Kipp
(1998) 18 Cal.4th 349, 369.)
The trial court found Deputy Crosby’s testimony of the 2016
traffic stop relevant to disprove any claim by Hawkins he
mistakenly did not know Foldgers had a gun or was intending to
rob the Louisiana Fried Chicken restaurant. The court explained it
was relevant, at a minimum, to the gang allegation and the People’s
theory of the case that the defendants were working “in association
with one another.” The court tailored the information to which the
deputy could attest, prohibiting discussion of the fact Hawkins was
arrested following the traffic stop and there was a child in the car.
Knowledge and absence of mistake or innocent intent “ ‘are
very closely intertwined.’ ” (People v. Hendrix (2013)
214 Cal.App.4th 216, 242.) “ ‘[T]o establish knowledge when that
element is akin to absence of mistake, the uncharged events must
be sufficiently similar to the circumstances of the charged offense to
support the inference that what defendant learned from the prior
experience provided the relevant knowledge in the current
offense.’ ” (People v. Felix (2019) 41 Cal.App.5th 177, 186.)
Hawkins argues there was no similarity here.
The court’s ruling admitting Deputy Crosby’s testimony was
well within its broad discretion. The evidence was relevant to show
Hawkins’s relationship with Foldgers and tied into the testimony by
13
the prosecution’s gang expert, Detective Perales. The gang evidence
in turn was relevant to disprove any claimed innocent intent by
Hawkins as to the charged offenses or lack of knowledge as to what
was planned when the three arrived at the restaurant that night.
The probative value of Deputy Crosby’s testimony was enhanced
because it “emanate[d] from a source independent of evidence of the
charged offense[s].” (People v. Tran (2011) 51 Cal.4th 1040, 1047.)
And, the potential for prejudice was decreased because his
testimony about that prior incident was not “more inflammatory
than the testimony concerning the charged offense[s].” (Ibid.)
In any event, even assuming it was error for the evidence to
be admitted for this limited purpose, it was harmless by any
standard. Any potential prejudice was mitigated by the court’s
limiting instruction to the jury. The jury was told the prosecution
had the burden of proof as to the evidence of the prior uncharged
incident and that if it did not meet that burden, the evidence was to
be disregarded entirely; that the jury may, but was not required to,
consider the evidence “for the limited purpose of deciding whether:
[¶] The defendant’s alleged actions were not the result of mistake
or accident”; that the evidence could not be considered for any other
purpose; that the jury must not conclude from the evidence that
defendant had a bad character or was predisposed to commit
crimes; and that if the jury concluded defendant had engaged in the
uncharged act, it was not sufficient to prove defendant guilty of any
of the charged offenses or special allegations. We presume the jury
followed the court’s instruction. (People v. Mooc (2001) 26 Cal.4th
1216, 1234.)
Hawkins has not demonstrated any undue prejudice from the
admission of Deputy Crosby’s testimony. His testimony was
relatively brief and the facts pertaining to the traffic stop were not
likely to provoke an emotional, irrational response from the jury.
14
(People v. Doolin (2009) 45 Cal.4th 390, 439 (Doolin) [evidence
should be excluded as unduly prejudicial only when it is the type
that will “ ‘inflame the emotions of the jury’ ”].)
3. Prosecutorial Error During Closing Argument
Hawkins raises three claims of prosecutorial misconduct or
error. None of the three challenged acts was objected to in the trial
court and any appellate challenge was therefore forfeited. “It is
well settled that making a timely and specific objection at trial, and
requesting the jury be admonished . . . is a necessary prerequisite to
preserve a claim of prosecutorial misconduct for appeal.” (People v.
Seumanu (2015) 61 Cal.4th 1293, 1328, italics added; accord, People
v. Davenport (1995) 11 Cal.4th 1171, 1209.) Hawkins argues
however, that several courts have held a prosecutor’s conduct that
inflames the passions and prejudices of the jury constitutes the sort
of misconduct that is not curable by admonition, thus eliminating
the need for defense objection to preserve the issue for appeal. (See,
e.g., People v. McGreen (1980) 107 Cal.App.3d 504, 519.) We are not
persuaded that occurred here.
All of the alleged misconduct occurred during closing
argument. Our Supreme Court has explained that we must
consider the prosecutor’s argument as a whole and in context.
(People v. Lucas (1995) 12 Cal.4th 415, 475.) Judged through such a
lens, the prosecutor’s remarks here did not encourage the jury to act
on their passions or prejudices and disregard the evidence. (See,
e.g., People v. Cornwell (2005) 37 Cal.4th 50, 92, overruled in part
on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [“the
prosecutor’s argument did not urge the members of the jury to act
on the basis of their fear of chaos and crime in the community, but
to act with an understanding of the importance of law in the
abstract”]; see also U.S. v. Monaghan (D.C. Cir. 1984) 741 F.2d
1434, 1442 [“a request that the jury ‘condemn’ an accused for
15
engaging in illegal activity is not constitutionally infirm, so long as
it is not calculated to excite prejudice or passion”].) Moreover,
nothing in the record suggests that if Hawkins had objected to any
of the challenged statements during trial, his objections would have
been futile, or that an admonition would have been insufficient to
cure any alleged harm. (People v. Hill (1998) 17 Cal.4th 800, 820.)
The claims were therefore forfeited.
Hawkins asserts, with little argument, that if we conclude his
claim was forfeited, then his trial counsel was ineffective. But, a
defendant’s burden to establish ineffective assistance on direct
appeal is stringent. A defendant “must show both that trial counsel
failed to act in a manner to be expected of reasonably competent
attorneys acting as diligent advocates, and that it is reasonably
probable a more favorable determination would have resulted in the
absence of counsel’s failings.” (People v. Cudjo (1993) 6 Cal.4th 585,
623, citing Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
Here, defense counsel could have had any number of valid
reasons for choosing not to object during the prosecutor’s argument.
“[W]here the appellate record does not reveal whether counsel had a
legitimate reason for a litigation choice, we generally reserve
consideration of any ineffective assistance claim for possible
proceedings on petition for writ of habeas corpus.” (People v. Snow
(2003) 30 Cal.4th 43, 95 (Snow); accord, People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.)
4. The Sentencing Issues
a. Defendant Jones—the prison prior
Senate Bill 136 (2019-2020 Reg. Sess.) was passed during the
pendency of this appeal, amending Penal Code section 667.5. The
parties agree it applies retroactively and that Jones is entitled to
the benefit of the amendments to section 667.5 which became
effective January 1, 2020. The parties further agree Jones’s prior
16
conviction is not an enumerated sexually violent offense as required
by the amended statute and therefore the one-year prison prior
must be stricken. We agree with the parties. The one-year
enhancement shall be stricken from the judgment of conviction.
b. Defendant Hawkins—Senate Bill 620
Senate Bill 620 (2017-2018 Reg. Sess.) amending Penal Code
section 12022.53 became effective January 1, 2018, more than a
year before Hawkins was sentenced in January 2019. Defendant
concedes his opening brief error in asserting the amendatory
provision became effective in January 2019. Defendant nonetheless
argues remand for resentencing is still appropriate because there is
nothing in the record to indicate the trial court knew of its
discretion to strike the firearm enhancement but declined to do.
We are not persuaded. “On appeal, we presume that the trial
court followed established law and thus properly exercised its
discretion in sentencing a criminal defendant.” (People v.
Weddington (2016) 246 Cal.App.4th 468, 492.) Penal Code section
12022.53 is not an obscure statute. Firearm enhancements are a
common aspect of many sentencing hearings. There is no basis in
the record to infer the court was unaware of the change in the law
over a year after it became effective.
c. Defendant Hawkins—the gang enhancement and
clerical errors in the abstract of judgment
(counts 17, 18 & 19)
Hawkins contends the court erred in imposing a gang
enhancement in addition to a firearm use enhancement on
counts 17, 18 and 19. As respondent concedes, defendant is correct.
Because Hawkins was not found by the jury to have
personally used a firearm but only that he aided and abetted a
principal who used a firearm in the commission of the attempted
robberies, the court could only impose an enhancement for the
17
firearm use. Even though the jury found the gang allegation true,
the imposition of a gang enhancement was not authorized in this
instance. “A defendant who personally uses or discharges a firearm
in the commission of a gang-related offense is subject to both the
increased punishment provided for in [Penal Code] section 186.22
and the increased punishment provided for in section 12022.53. In
contrast, when another principal in the offense uses or discharges a
firearm but the defendant does not, there is no imposition of an
‘enhancement for participation in a criminal street gang . . . in
addition to an enhancement imposed pursuant to’ section 12022.53.’
(§ 12022.53(e)(2).)” (People v. Brookfield (2009) 47 Cal.4th 583, 590
(Brookfield).)
During the court’s oral pronouncement of judgment, the court
mistakenly imposed a gang enhancement on counts 17, 18 and 19.
The court also made a calculation error on counts 18 and 19. The
court clearly imposed a total term of four years on each count, but
then stated the sentence consisted of an eight-month term on the
offense, plus one year four months for the gang allegation and three
years four months for the firearm use which amounts to a total
term of five years four months. The minute order memorializing
the sentencing hearing fails to accurately reflect the court’s oral
order in numerous respects, including stating that the terms on
counts 18 and 19 were one-third of an unspecified 12-year midterm.
The abstract of judgment also contains errors, reciting the
erroneous gang enhancement on count 17, but omitting it from
counts 18 and 19. All of these errors require correction.
According to the statutory language and Brookfield, the
court’s imposition of the gang enhancement on counts 17, 18 and 19
was unauthorized and we therefore reverse and strike those
enhancements from the judgment. The minute order memorializing
the court’s pronouncement of judgment as well as the abstract of
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judgment must be corrected to accurately reflect the lawful
sentence. The sentence on counts 17, 18 and 19 must not include
any gang enhancement. The sentence on counts 18 and 19 must
reflect the court’s intended sentence of four years on each count
consisting of a consecutive eight-month term for the offense (one-
third of two-year midterm), plus a consecutive term of three years
four months for the firearm enhancement (one-third of 10-year term
pursuant to Pen. Code, § 12022.53, subd. (e)).
d. Both defendants—imposition of fines and fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas), Jones and Hawkins both contend the trial court’s
imposition of a court security fee, a criminal conviction fee, and a
restitution fine on each count without a finding of ability to pay
violated their constitutional rights. Defendants concede they did
not object to the imposition of these fines and fees on any grounds
in the trial court.
Defendants have forfeited this contention. (People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen)
[finding forfeiture where no objection raised in trial court to
imposition of court operation assessment, criminal conviction
assessment and restitution fine]; accord, People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1032-1033; People v. Bipialaka (2019)
34 Cal.App.5th 455, 464; see also People v. Avila (2009) 46 Cal.4th
680, 729 [finding forfeiture where the defendant failed to object to
imposition of restitution fine under Pen. Code, former § 1202.4
based on inability to pay].)
The court imposed the restitution fines above the statutory
minimum. Under subdivision (c) of Penal Code section 1202.4, both
Jones and Hawkins had notice of the right to argue inability to pay
in opposition to the imposition of any restitution fine over the
statutory minimum of $300. Defendants did not do so. Defendants
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were in the best position to know whether they had the ability to
pay any fines or fees and it was incumbent upon them to timely
raise the issue with the court.
Defendants nonetheless urge us to reject Frandsen and find
the contention has not been forfeited, citing People v. Castellano
(2019) 33 Cal.App.5th 485, 489 and People v. Jones (2019)
36 Cal.App.5th 1028, 1031-1034. We believe Frandsen to be the
better reasoned decision and conclude there is no basis for excusing
defendants’ forfeiture on this issue.
In any event, nothing in the record supports defendants’
contention the imposition of the fines and fees was fundamentally
unfair or violated their constitutional right to due process as found
in Dueñas. The fines and fees were imposed pursuant to clear
statutory authority. Dueñas not only involved unique factual
circumstances not applicable here, but the validity of its analytical
framework has been questioned by numerous courts: see, e.g.,
People v. Allen (2019) 41 Cal.App.5th 312, 326-329, review denied
January 2, 2020; People v. Kingston (2019) 41 Cal.App.5th 272, 279-
282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review
granted November 26, 2019, S258946; People v. Caceres (2019)
39 Cal.App.5th 917, 926-929, review denied January 2, 2020.
Defendants were represented by counsel at the sentencing
hearing and in the absence of a timely objection, the trial court
could reasonably presume the fines and fees would be paid out of
their future prison wages. (See, e.g., People v. Douglas (1995)
39 Cal.App.4th 1385, 1397; People v. Hennessey (1995)
37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28 Cal.App.4th
1374, 1376-1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)
To the extent defendants argue their respective trial
attorneys were ineffective for failing to raise an objection based on
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ability to pay, we are unable to resolve that issue on direct appeal.
(Snow, supra, 30 Cal.4th at p. 95.)
e. Both defendants—failure to impose mandatory
fees and clerical errors in the abstracts of
judgment
As to both Jones and Hawkins, the court imposed only one
$40 court operations fee and one $30 criminal conviction fee,
instead of imposing each fee on each count in accordance with the
mandatory statutory language. (Pen. Code, § 1465.8; Gov. Code,
§ 70373.) Jones was convicted on five felony counts and therefore
the required court operations fee is $200 with a criminal conviction
fee of $150. The abstract of judgment does not have to be amended,
however, because it states the correct $200 court operations fee and
$150 criminal conviction fee.
The abstract of judgment for Hawkins, however, does not
state the correct court operations fee and criminal conviction fee.
The failure of a sentencing court to impose a mandatory fine or fee
results in an unauthorized sentence that may be corrected on
appeal without objection made in the trial court. (See, e.g., People
v. Terrell (1999) 69 Cal.App.4th 1246, 1256 [failure to impose
mandatory parole revocation fine in amount equal to restitution
fine may be corrected on appeal].)
Hawkins was convicted on six felony counts and the required
court operations fee is $240 with a criminal conviction fee of $180.
Hawkins’s abstract which erroneously states fees of $120 and $90,
respectively, shall be corrected to reflect the statutorily required
amounts.
5. Cumulative Error
Hawkins argues there was cumulative prejudice from the
combined trial court errors. “There can be no cumulative error if
the challenged rulings were not erroneous.” (People v. Sedillo
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(2015) 235 Cal.App.4th 1037, 1068; see also People v. Bradford
(1997) 15 Cal.4th 1229, 1382 [finding that to the extent any errors
occurred, they were minor and “[e]ven considered collectively” they
did not result in prejudice].) As explained above, Hawkins has not
shown cumulative prejudicial effect.
DISPOSITION
Defendant and appellant Jeremiah Lamar Jones:
The one-year enhancement imposed pursuant to Penal Code
section 667.5, subdivision (b) is reversed and stricken from the
judgment of conviction. A court operations fee of $40 (Pen. Code,
§ 1465.8) is imposed as to each of the five felony convictions for a
total fee of $200. A criminal conviction fee of $30 (Gov. Code,
§ 70373) is imposed as to each of the five felony convictions for a
total fee of $150. The judgment, as so modified, is affirmed in all
other respects.
The superior court is directed to prepare a new abstract of
judgment consistent with this opinion and transmit same to the
Department of Corrections and Rehabilitation.
Defendant and appellant Davion Keshaun Hawkins:
The gang enhancements imposed on counts 17, 18 and 19
pursuant to Penal Code section 186.22 are reversed and stricken
from the judgment of conviction. A court operations fee of $40
(Pen. Code, § 1465.8) is imposed as to each of the six felony
convictions for a total fee of $240. A criminal conviction fee of $30
(Gov. Code, § 70373) is imposed as to each of the six felony
convictions for a total fee of $180. The judgment, as so modified, is
affirmed in all other respects.
The superior court is directed to prepare a new sentencing
minute order consistent with this opinion, correcting the fees
imposed, deleting the gang enhancement on counts 17, 18 and 19,
and identifying consecutive sentences on counts 18 and 19 as each
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consisting of a four-year term (an eight-month term for the offense,
one-third of a two-year midterm, plus three years four months, one-
third of a 10-year term, for the firearm enhancement). The superior
court is further directed to prepare a new abstract of judgment
consistent with this opinion and transmit same to the Department
of Corrections and Rehabilitation.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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