Filed 3/17/16 P. v. Kozee-Stoltz CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


THE PEOPLE,                                                        D069073

         Plaintiff and Respondent,

         v.                                                        (Super. Ct. No. SWF1201090)

JORDAN PAUL KOZEE-STOLTZ et al.,

         Defendants and Appellants.


         APPEALS from judgments of the Superior Court of Riverside County, Albert J.

Wojcik, Judge. Affirmed in part, reversed in part and remanded.


         Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant Jordan

Paul Kozee Stoltz.

         Professional Law Corp. and Susan K. Shaler for Defendant and Appellant

Christopher A. Newsome.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randy Einhorn

and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Jordan Paul Kozee-Stoltz and Christopher Alexander Newsome

(together defendants) of attempting to murder Brylowe Perez and Trenton Buchanan and

found true the allegations that the attempted murder was willful, deliberate and

premeditated. The jury also convicted defendants of second degree robbery, willfully

discharging a firearm at an occupied motor vehicle and street terrorism. The jury found

true that defendants personally used a firearm and that gang enhancements applied to all

but the street terrorism charge. Newsome admitted a prior strike conviction. The court

sentenced Stoltz to a determinate sentence of 13 years plus an indeterminate sentence of

30 years-to-life in prison and Newsome to a determinate sentence of 20 years and an

indeterminate sentence of 60 years-to-life.

       Defendants appeal, contending the trial court erred: (1) in declaring Buchanan to be

an unavailable witness; (2) allowing uncorroborated accomplice testimony; (3) instructing

the jury as to the street terrorism charge and gang enhancements; (4) by failing to give a

unanimity instruction; (5) instructing the jury on attempted murder and the willfulness

sentencing enhancement attached to this count; (6) by denying their request to instruct the

jury it should consider an accomplice's plea bargain when assessing the accomplice's

credibility; (7) not staying the robbery sentence; and (8) imposing consecutive sentences.

Defendants contend that the cumulative effect of the above errors prejudiced them. Finally,

defendants ask us to independently review sealed mental health evaluations.

       We have reviewed the sealed mental health evaluations and find no error in the

trial court's failure to disclose them to defense counsel. As we shall explain, the trial

court improperly instructed the jury as to the street terrorism charge and the gang


                                              2
enhancements. Accordingly, the street terrorism charge and the gang enhancements

attached to the remaining charges are reversed and the matter is remanded for

resentencing. We reject defendants' remaining claims of error. Because there were no

individual errors, there is no cumulative error and we need not address this claim.

                    FACTUAL AND PROCEDURAL BACKGROUND

       On an evening in April 2012, Perez and Buchanan were driving around in

Buchanan's Chevy Impala when Buchanan decided to purchase marijuana from Juwan

Carter. After arriving at a residence in Temecula, Buchanan got out of the Impala and

Perez stayed inside. Carter and Buchanan discussed marijuana quality and prices and

Carter then left for a couple of minutes.

       Carter returned in a Dodge Charger driven by Stoltz. Carter sat in the back of the

Charger and Newsome was the front passenger. Carter had Buchanan get into the

backseat of the Charger. Stoltz, Newsome and Carter each pointed a gun at Buchanan.

Carter and Stoltz demanded money and told Buchanan, "We're Yarbrough Park Crips and

we kill people." Carter and Stoltz searched Buchanan's pockets. Stoltz took Buchanan's

wallet and Carter took Buchanan's wristwatch and a few dollars. Carter and defendants

then walked Buchanan back to the Impala at gunpoint.

       Buchanan ran toward the Impala and yelled at Perez to drive. Buchanan got into

the Impala and Perez sped off. Stoltz followed in the Charger with Newsome and Carter.

Gunfire erupted from the Charger with some bullets hitting the Impala. Eventually, a

police car pulled over the Impala.




                                            3
       In the meantime, Stoltz turned the Charger into a residential neighborhood, Carter

got out of the car, wrapped the three guns in his jacket and hid them in a bush. Another

police car later pulled over the Charger. Among other things, police found Buchanan's

wallet in the backseat of the Charger. There were also entry and exit bullet holes on the

driver's side hood of the Charger. No weapons were found inside the Charger. At an in-

field lineup, Buchanan identified Stoltz as the driver of the Charger and Carter as the man

in the backseat. Buchanan could not identify Newsome. Police found multiple bullet

holes in the Impala. After being taken into custody, Carter led police to the guns. The

police found the guns wrapped in a sweater underneath a bush.

                                       DISCUSSION

                      I. Admission of Buchanan's Prior Testimony

A. Background

       The prosecution moved in limine to have Buchanan declared unavailable and to

admit his preliminary hearing testimony. At the Evidence Code section 402 hearing,

Terese Workman and Todd Marty from the Riverside County District Attorney's Office

testified. With trial scheduled to begin the following month, Workman received

Buchanan's subpoena on December 10, 2013. After determining that Buchanan did not

have a criminal history, she searched the DMV system and located an address. The

following day, she went to the address and spoke to Buchanan's father. Buchanan's father

did not know where Buchanan lived. Workman checked for Buchanan on another law

enforcement system and on Facebook. She identified Buchanan's girlfriend, Janee




                                            4
Brewton, and a former employer and located an address in San Diego. The former

employer did not have a forwarding address or contact information for Buchanan.

      On December 26, 2013, Workman visited Buchanan's mother and grandmother at

a residence in Murrieta. She learned that Buchanan had been at the home the previous

day to celebrate Christmas, but left that same day. Buchanan's mother did not have an

address for him. Buchanan's mother said she would call Buchanan and his girlfriend and

leave a message, telling him to call Workman.

      On January 16, 2014, Marty checked an address where one of Buchanan's relatives

might have been living. Marty located Brewton at another address, who called Buchanan

on her cell phone while Marty was there. Marty talked to Buchanan on Brewton's cell

phone. Buchanan told Marty that he was in Avondale, Arizona. Buchanan gave Marty

two cell phone numbers and his address in Rancho, California. When Marty tried to

contact Buchanan, the numbers that Buchanan had given him were out of service. Marty

called Brewton twice and left two messages, but he never heard back from her. Marty

went to the address in Rancho, California, but the residents did not know Buchanan.

Marty discovered that Buchanan had a court hearing scheduled in January. Marty called

the court's reference phone number for Buchanan and spoke to Buchanan who said he

was still in Arizona and did not want to testify. Marty ran checks on two license plate

numbers associated with Buchanan, but they both came back negative.

      After hearing argument from counsel, the trial court ruled that Buchanan was

unavailable and allowed the prosecution to present Buchanan's prior testimony. The




                                            5
court directed the District Attorney's office to make efforts to locate Buchanan in Arizona

and to try and contact Buchanan if he showed up for his scheduled court appearance.

       Buchanan did not show up for his scheduled court appearance. Workman testified

that she had attempted to contact Buchanan in Avondale, Arizona by calling the

Avondale Police Department, but it had no record of him. She also checked a database

for information on an Arizona address for either Buchanan or his possible associates, but

found nothing. Workman called the phone number where Marty had previously reached

Buchanan, but it was no longer in service.

       Defense counsel renewed their objection to Buchanan's preliminary hearing

testimony being read into the record. The court, however, confirmed its prior ruling.

B. Analysis

       Defendants contend the prosecutor failed to show due diligence in attempting to

locate Buchanan and claim the court's admission of Buchanan's preliminary hearing

testimony violated their Sixth Amendment right to confrontation. We disagree.

       A criminal defendant has a constitutional right to confront prosecution witnesses,

but the right is not absolute. (People v. Cromer (2001) 24 Cal.4th 889, 892.) "An

exception exists when a witness is unavailable and, at a previous court proceeding against

the same defendant, has given testimony that was subject to cross-examination." (Ibid.)

Under this exception, the preliminary hearing testimony of an unavailable witness may be

admitted at trial without violating a defendant's confrontation right. (People v. Herrera

(2010) 49 Cal.4th 613, 621; Evid. Code, § 1291, subd. (a)(2).) A witness is unavailable

when the witness is absent from the hearing and the proponent of the witness's testimony


                                             6
has exercised reasonable diligence, but has been unable to procure the witness's

attendance by the court's process. (Evid. Code, § 240, subd. (a)(5).) We independently

review the prosecution's claim of good faith and reasonable diligence. (People v.

Herrera, at p. 623.) Factors we consider in determining whether the prosecutor has

shown reasonable diligence include the timeliness of the search, the importance of the

witness's testimony, and whether leads to the witness's possible location were reasonably

explored. (People v. Thomas (2011) 51 Cal.4th 449, 500.)

      On October 22, 2013, the court set the matter for trial on January 9, 2014. The

prosecution began looking for Buchanan on December 10, 2013, 42 days before trial

started on January 21. Defendants complain the prosecution presented no evidence it

communicated with Buchanan after the preliminary hearing and did not timely begin its

search for Buchanan as it knew Buchanan was a reluctant witness.

      A prosecutor is not required " 'to keep "periodic tabs" on every material witness in

a criminal case,' " but must take adequate preventative measures to stop a witness from

disappearing when the prosecutor has knowledge of a substantial risk that an important

witness will flee. (People v. Friend (2009) 47 Cal.4th 1, 68.) Here, the evidence shows

Buchanan voluntarily appeared at the preliminary hearing with the enticement that the car

impounded after the incident would then be released if he cooperated. Thus, while

Buchanan can be described as a reluctant witness, the prosecutor had no obligation to

keep in periodic contact with him, and defendants pointed to no evidence in the record

suggesting the prosecutor had knowledge of a substantial risk that Buchanan would

disappear.


                                            7
       Moreover, the prosecution started searching for Buchanan 42 days before the

scheduled trial date, this does not constitute an unreasonable delay. (People v. Fuiava

(2012) 53 Cal.4th 622, 675-676 [search for witness reasonably commenced two weeks

before the start of trial].) Significantly, there is no indication in the record that starting

the search earlier would have made any difference in the prosecution's ability to procure

Buchanan's attendance at trial. Not discussed by defendants is the fact that the

prosecution investigators spoke to Buchanan, who indicated he was in Avondale, Arizona

and did not want to come to court to testify. At that time, Buchanan provided an address

in Rancho, California that turned out to be false. Buchanan refused to disclose where he

was staying in Arizona or who he was staying with.

       While it appears Buchanan came to court on another matter, there is no indication

the prosecution had any advance knowledge he would appear as the record shows he

could have added himself to the calendar by calling, faxing or having an attorney appear.

When the prosecution learned that Buchanan had a scheduled court date, it had

investigators waiting for him, but he never appeared. The prosecution searched for

Buchanan in Arizona by calling the Avondale Police Department and checking a database

for an address or possible associates, but had no success. Defendants note that Buchanan

appeared at his parents' home on Christmas day and criticize the prosecution for not

having investigators waiting there. That day, however, Buchanan could have been with

his girlfriend and child in San Diego. " 'The law requires only reasonable efforts, not

prescient perfection.' " (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)




                                               8
       "[W]hen a witness disappears before trial, it is always possible to think of

additional steps that the prosecution might have taken to secure the witness'

presence . . . but the Sixth Amendment does not require the prosecution to exhaust every

avenue of inquiry, no matter how unpromising." (Hardy v. Cross (2011) __ U.S. __ [132

S.Ct. 490, 495].) It is speculative to assume that if the prosecution had pursued any other

leads, it would have procured Buchanan's presence at trial. Buchanan failed to appear for

a scheduled court date and there is no guarantee that, even if the prosecution had served

him with a subpoena, he would have appeared for trial given Buchanan's statement that

he did not want to testify. It seems Buchanan "purposely made [him]self unavailable

because [he] was unwilling to testify." (People v. Diaz, supra, 95 Cal.App.4th at p. 706.)

       We reject Newsome's suggestion that he had a different interest and motive in

cross-examining Buchanan at the preliminary hearing than at trial and his criticism that

counsel did not explore all credibility issues at the preliminary hearing. The trial court

here could have reasonably concluded that defendants had much the same interest,

motive, and opportunity to cross-examine Buchanan at the preliminary hearing as at trial.

(People v. Valencia (2008) 43 Cal.4th 268, 294 [interest and motive to cross-examine

need not be identical, only " 'similar' "].) That Newsome would have preferred more

cross-examination during the preliminary hearing is not the test of confrontation. (People

v. Carter (2005) 36 Cal.4th 1114, 1173-1174.)

       The totality of the circumstances support the conclusion that the prosecution

exercised reasonable diligence to locate Buchanan; accordingly, the trial court did not err

in allowing Buchanan's preliminary hearing testimony to be read to the jury.


                                             9
                                II. Accomplice Corroboration

A. Background

       Carter testified that he was currently in custody for attempted murder arising from

the incident and he had an agreement to testify truthfully in exchange for a sentence of 18

years in prison. Carter claimed that he had intended to sell Buchanan $2,000 worth of

cocaine that had been cut with baking soda. Via text message, Carter and Stoltz agreed to

a plan for Buchanan. Carter had Stoltz bring a gun for himself and a .25 caliber handgun

for Carter. Stoltz picked Carter up in a Charger. Newsome was in the front passenger

seat and Carter sat in the backseat. Carter had the .25 caliber gun in his pocket.

Newsome had a .380 caliber gun and Stoltz had a .45 caliber gun.

     Buchanan got into the Charger and claimed he did not have any money. The three

men then pulled out their guns and pointed them at Buchanan's head. Buchanan told

Carter the money was in his car. Carter and Stoltz took Buchanan's wallet and watch,

and Carter ordered Buchanan out of the car. Buchanan ran to the Impala and the car took

off. Carter, Stoltz, and Newsome gave chase in the Charger. Carter and Stoltz fired

their guns at the Impala. Newsome tried to fire his gun but it had jammed and he

could not clear the jam. After police pulled over the Impala, Stoltz turned into a

residential neighborhood. Newsome and Stoltz handed Carter their guns and Carter

put all three guns in his jacket and put the jacket with the guns in a bush.




                                             10
B. Analysis

       Defendants contend their attempted murder convictions must be reversed because

these convictions were based upon Carter's uncorroborated accomplice testimony that

defendants fired a gun or attempted to fire a gun at Perez and Buchanan. We disagree.

       A conviction cannot be based only on accomplice testimony. (Pen. Code, § 1111;

undesignated statutory references are to the Penal Code.) There must be sufficient

corroborating evidence that "shall tend to connect the defendant with the commission of

the offense; and the corroboration is not sufficient if it merely shows the commission of

the offense or the circumstances thereof." (Ibid.) The requisite corroboration "must,

without aid from the accomplice's testimony, connect the defendant to the charged

offense, but may be circumstantial, slight and entitled to little consideration when

standing alone. [Citations.] Corroborating evidence need not be sufficient to establish

the defendant's guilt or corroborate the accomplice to every fact to which the accomplice

testified. [Citations.] It must raise more than a suspicion or conjecture of guilt, and is

sufficient if it connects the defendant with the crime in such a way as to reasonably

satisfy the trier of fact as to the truthfulness of the accomplice." (People v. Samaniego

(2009) 172 Cal.App.4th 1148, 1177-1178.) Unless we determine "that the corroborating

evidence should not have been admitted or that it could not reasonably tend to connect a

defendant with the commission of a crime, the finding of the trier of fact on the issue of

corroboration may not be disturbed on appeal." (People v. Falconer (1988) 201

Cal.App.3d 1540, 1543.)




                                              11
       Carter testified that Stoltz fired a .45 caliber gun at the victims and Newsome

attempted to fire a .380 caliber gun at the victims, but the gun had jammed. Carter

further testified that Stoltz and Newsome handed him their guns after the shooting and

Carter wrapped these guns along with the .25 caliber gun he had used in his jacket and

put them underneath a bush in the area near the shooting. Applying the above principles,

we find the following evidence sufficient to corroborate Carter's accomplice testimony

regarding defendants' involvement in the attempted murders of Buchanan and Perez.

       A deputy testified that he took Buchanan to an infield lineup after the incident and

Buchanan positively identified Stoltz as the driver of the Charger. Another deputy testified

that Stoltz was in the driver's seat of the Charger after the incident. Buchanan testified that

Stoltz and Newsome pointed their guns at his face while they robbed him in the Charger.

       A deputy testified that bullet holes in the Charger were consistent with the driver,

Stoltz, sticking his arm out of the window and firing a gun hitting the hood of the Charger

with the bullet then exiting out through the Charger's grill. A bullet hole in the trunk area of

the Impala appeared to be from a .45 caliber gun. After the incident, Carter led deputies to

the bush where he had hidden the guns. The guns, which had been wrapped in a sweater,

were a .45 caliber Taurus, a .25 caliber Sundance, and a .380 caliber gun of an undetermined

brand. The recovered .380 caliber gun had unexpended ammunition in its magazine and a

bullet in its chamber.

       Thus, excising Carter's accomplice testimony, we are convinced there was

sufficient independent evidence to connect defendants with the commission of the

attempted murders.


                                             12
                              III. Alleged Instructional Error

A. Gang Related Instructions

1. Background

        Defendants were charged with street terrorism and it was alleged that they

committed the other crimes to benefit a criminal street gang. At trial, a gang expert

testified that in 2006, Yarborough Park Crips gang members Alazado Tuaolo and

Nicholas Shipman pleaded guilty to, respectively, grossly negligent discharge of a

firearm and residential burglary and both admitted committing the crimes to benefit a

gang.

        The trial court instructed the jury as to the elements of the gang enhancement and

the substantive street terrorism charge. The instructions defined a "pattern of criminal

gang activity" for the jury as the commission of "two or more" of the following crimes.

The instructions listed "burglary" and "grossly negligent discharge of a firearm and admit

crime was committed for the benefit of a criminal street gang" as the crimes that could

constitute a pattern of criminal gang activity.

2. Analysis

        Defendants contend the trial court erroneously included grossly negligent

discharge of a firearm as a pattern offense. The People concede the trial court

erroneously included this crime as a pattern offense, but assert the error was harmless

because the current offenses qualified as pattern offenses. The People contend the

evidence and resulting convictions showed defendants committed two pattern offenses as




                                              13
enumerated in section 186.22, subdivision (e), namely, robbery and discharging a weapon

at a motor vehicle. We disagree that the error was harmless.

       "When one of the theories presented to a jury is legally inadequate, such as a

theory which ' "fails to come within the statutory definition of the crime" ' [citation], the

jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a

verdict on the basis of the legally invalid theory without realizing that, as a matter of law,

its factual findings are insufficient to constitute the charged crime. In such

circumstances, reversal generally is required unless 'it is possible to determine from other

portions of the verdict that the jury necessarily found the defendant guilty on a proper

theory.' " (People v. Perez (2005) 35 Cal.4th 1219, 1233; see also Griffin v. United States

(1991) 502 U.S. 46, 59; People v. Guiton (1993) 4 Cal.4th 1116, 1128.)

       The jury convicted defendants of robbery and discharging a weapon at a motor

vehicle, two crimes enumerated in section 186.22, subdivision (e) as pattern offenses.

The jury instructions, however, directed the jury that a "pattern of criminal gang activity"

meant the commission of "two or more of the following crimes," either "burglary" or

"grossly negligent discharge of a firearm and admit crime was committed for the benefit

of a criminal street gang." The court never instructed the jury that it could consider

robbery or discharging a weapon at a motor vehicle as pattern offenses.

       Thus, the jury instructions for the gang enhancements and street terrorism charge

in this case permitted the jury to convict defendants of street terrorism and find true the

gang enhancements on an improper legal theory. Reversal is required because there is

nothing in the record to establish that the jury necessarily rejected the improper legal


                                              14
theory and instead convicted defendants on a proper theory. Accordingly, the street

terrorism convictions in count 5 and the true findings on the gang enhancements

connected to counts 1, 2, 3 and 4 must be reversed and the matter remanded for

resentencing.

B. Unanimity Instruction

1. Background

       Stoltz took Buchanan's wallet and Carter took Buchanan's wristwatch and a few

dollars. Inside the wallet, Buchanan had about $60 to $80, his social security card, a gift

card from McDonald's and other items. During a subsequent search of the backseat of

the Charger, police found Buchanan's empty wallet and the McDonald's gift card.

2. Analysis

       Defendants contend that based on varying testimony as to what was taken from

Buchanan while he was in the Charger, either the prosecutor should have made an

election or the trial court erred in failing to give the jury a unanimity instruction with

regard to the robbery charge. We disagree.

       A defendant's constitutional right to a unanimous jury verdict requires that when

the evidence shows more than one unlawful act that could support a single charged

offense, the prosecution must either elect which act it is relying upon, or the trial court

must instruct the jurors sua sponte that they must unanimously agree which act

constituted the crime. (People v. Jennings (2010) 50 Cal.4th 616, 679.) A unanimity

instruction is not required, however " 'when the acts are so closely connected as to form

part of one transaction.' " (Ibid.) " 'We review de novo a claim that the trial court failed


                                              15
to properly instruct the jury on the applicable principles of law.' " (People v. Lueth

(2012) 206 Cal.App.4th 189, 195.)

       Here, although the evidence shows Stoltz took Buchanan's wallet, which contained

multiple items, while Carter took Buchanan's wristwatch, the evidence described one

continuous course of conduct that lasted only a few minutes. Thus, no unanimity

instruction was required. (People v. Curry (2007) 158 Cal.App.4th 766, 782 [where

defendant took victim's shoes and phone almost simultaneously during an assault, the

takings formed a single incident of robbery]; People v. Haynes (1998) 61 Cal.App.4th

1282, 1296 [robbery in which defendant stole some of victim's cash, then drove to

another location and stole more money; no unanimity instruction required].)

C. Attempted Murder Instruction

       The jury found Newsome guilty of attempting to murder Buchanan and Perez.

The court instructed the jury it could find Newsome guilty as an aider and abettor under

the natural and probable consequences doctrine. Newsome contends the instructions

were deficient under People v. Chiu (2014) 59 Cal.4th 155 (Chiu), which held an aider

and abettor may not be convicted of first degree premeditated murder under the natural

and probable consequences doctrine. (Id. at p. 166.) Newsome asserts Chiu is equally

applicable to attempted first degree murder, otherwise a defendant can serve a life

sentence without a jury finding either a personal intent to kill or premeditation. Because

the verdict does not reflect under what theory or theories the jury found true beyond a

reasonable doubt, Newsome contends his attempted murder conviction must be reversed.

Newsome acknowledges People v. Favor (2012) 54 Cal.4th 868 (Favor) undercuts his


                                             16
argument, but asserts Favor presented a different question and Chiu cannot be read as an

endorsement of Favor. We reject Newsome's argument. To the extent Stoltz joins in this

argument, our discussion is equally applicable to him.

       In Favor, our high court held that an aider and abettor may be found to have

committed an attempted murder with premeditation and deliberation on the basis of the

natural and probable consequences doctrine. (Favor, supra, 54 Cal.4th at p. 872.) In

Chiu, our high court acknowledged this holding when considering the question of how to

instruct the jury on aider and abettor liability for first degree premeditated murder under

the natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at p. 162.)

Chiu held that an aider and abettor may not be convicted of first degree premeditated

murder under the natural and probable consequences doctrine, but may be convicted of

first degree premeditated murder based on direct aiding and abetting principles. (Id. at

pp. 158-159.) Our high court limited its ruling in Chiu to first degree premeditated

murder (Ibid.; id. at pp. 166-167), and contrasted this holding with its ruling in Favor, in

which it held that an aider and abettor may be found to have committed an attempted

murder with premeditation and deliberation on the basis of the natural and probable

consequences doctrine (Favor, at p. 872; Chiu, at pp. 162-163). Because Newsome's

convictions were for attempted murder with premeditation, under principles of stare

decisis we are bound to follow Favor. (Auto Equity Sales, Inc. v. Superior Court (1962)

57 Cal.2d 450, 455.)



D. Willfulness Allegation


                                             17
       The jury found Newsome guilty of two counts of attempted murder and found true

the allegations that he committed the attempted murders willfully, deliberately, and with

premeditation within the meaning of section 664, subdivision (a) (the willfulness

allegation). Newsome notes that the aiding and abetting instructions for the attempted

murder charges omitted any requirement that the jury find the willfulness allegations to

be the natural and probable consequence of aiding and abetting an attempted murder.

Newsome concedes that the jury instructions conformed with the decision in Favor,

supra, 54 Cal.4th 868, but asserts they were nonetheless erroneous under federal law,

asserting the reasoning of Favor was implicitly rejected in Alleyne v. United States

(2013) ____U.S. _____ [133 S.Ct. 2151] (Alleyne). He claims the jury instructions

resulted in the jury finding true the willfulness allegations without finding true beyond a

reasonable doubt all the facts required for such a finding as required by Apprendi v. New

Jersey (2000) 530 U.S. 466 (Apprendi). Accordingly, he asserts the true finding on the

willfulness allegations must be reversed. We reject Newsome's argument. To the extent

Stoltz joins in this argument, our discussion is equally applicable to him.

       Under the jury instructions, which defendants concede conformed to Favor, the

trial court instructed the jury on the crime of attempted murder and on the natural and

probable consequences doctrine; namely, to find defendants guilty of attempted murder,

the jurors must find, among other things, that defendants aided and abetted the robbery

and that attempted murder was a natural and probable consequences of the robbery. If

the jurors found defendants guilty of attempted murder, they were then required to

determine whether the attempted murder was willful, deliberate and premeditated.


                                             18
Defendants complain that the instructions omitted any requirement that the jury find the

willfulness allegations to be the natural and probable consequence of aiding and abetting

an attempted murder, noting that a true finding on the willfulness allegations increased

their sentences. Newsome argues he intended to commit a robbery, not attempted

murder, and there was meager evidence he, Carter and Stoltz deliberated or premeditated

when they began shooting or attempting to shoot.

       While defendants are correct that a true finding on the willfulness allegations

increased their sentences, there is no support in the law or logic that the jurors were

required to find that a willful, deliberate, and premeditated attempted murder was the

natural and probable consequence of robbery in order to find true the willfulness

allegations. First, defendants were not found guilty of the crime of willful, deliberate,

and premeditated attempted murder as there is no such crime. (Favor, supra, 54 Cal.4th

at pp. 876-877 [attempted murder is not divided into degrees and premeditated attempted

murder is not a separate offense from attempted murder].) Rather, the jury found

defendants guilty of attempted murder and it then found true the separate penalty

provision (§ 664, subd. (a)) that the attempted murders were willful, deliberate and

premeditated. (Favor, at pp. 877, 879-880.)

       As the Favor court explained, "under the natural and probable consequences

doctrine, there is no requirement that an aider and abettor reasonably foresee an

attempted premeditated murder as the natural and probable consequence of the target

offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of




                                             19
the crime aided and abetted, and the attempted murder itself was committed willfully,

deliberately and with premeditation." (Favor, supra, 54 Cal.4th at p. 880.)

       Alleyne does not overrule Favor. In Alleyne, the United States Supreme Court

explained that first degree murder would necessarily constitute a separate offense from

second degree murder: "When a finding of fact alters the legally prescribed punishment

so as to aggravate it, the fact necessarily forms a constituent part of a new offense and

must be submitted to the jury." (Alleyne, supra,___ U.S. ___ [133 S.Ct. 2151, 2162],

italics added.) This holding is based on Apprendi, supra, U.S. 466, in which the court

held that any fact which increases the maximum penalty for a crime is an element of the

offense that must be found true by a jury beyond a reasonable doubt. (Alleyene, at p. ___

[133 S.Ct. at pp. 2155-2158].) As we explained above, willful, deliberate, and

premeditated attempted murder is not a crime and the jurors were properly instructed as

to the crime of attempted murder and the separate willfulness allegations. Accordingly,

we reject defendants argument that the jurors were required to find that the willfulness

allegation was a natural and probable consequence of aiding and abetting an attempted

murder.

E. Credibility Instruction

1. Background

       CALJIC No. 2.20 instructed the jury that "[i]n determining the believability of a

witness you may consider anything that has a tendency reasonably to prove or disprove the

truthfulness of the testimony of the witness," including whether a witness is testifying under

a grant of immunity. The instruction also told the jury that it was not limited to the factors



                                               20
listed in the instruction to determine witness credibility. Newsome requested the trial court

modify CALJIC No. 2.20 to include a reference to Carter's plea agreement. The trial

court denied the request and instructed Newsome's counsel that he could argue the effects

of Carter's plea agreement.

2. Analysis

       Defendants assert the trial court erred in refusing to instruct the jury it could

consider Carter's plea bargain in assessing Carter's credibility. They contend the court's

refusal to instruct on Carter's plea bargain forced trial counsel to argue Carter was

discredited without the benefit of a correct instruction authorizing jurors to do so.

Defendants assert they were entitled upon request to an instruction pinpointing the theory

of the defense, namely, that Carter should not be believed. They argue that the failure to

inform jurors they could and should consider Carter's plea bargain in determining his

credibility deprived them of their federal constitutional rights, and therefore the

judgments of guilt must be reversed because the error was not harmless beyond a

reasonable doubt. The trial court did not err in refusing the requested modification.

       A defendant is entitled to an instruction which pinpoints a defense theory. (People

v. Wharton (1991) 53 Cal.3d 522, 570.) Such an instruction is one which "pinpoints the

evidence in the case in the light of defendant's theory of defense and instructs the jury

that the People bear the burden of ultimate persuasion on the issue which the instruction

pinpoints." (People v. Brady (1987) 190 Cal.App.3d 124, 135.) A court is not required

to give a pinpoint instruction that is argumentative, duplicative, or not supported by the

evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558-559.) A trial court can also


                                              21
refuse instructions that highlight specific evidence because such an instruction " 'invite[s]

the jury to draw inferences favorable to one of the parties from specified items of

evidence,' it is considered 'argumentative' and therefore should not be given." (People v.

Earp (1999) 20 Cal.4th 826, 886.)

       Proper instructions do not pinpoint specific evidence, but rather the theory of the

defendant's case. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) "[I]nstructions that

attempt to relate particular facts to a legal issue are generally objectionable as

argumentative [citation], and the effect of certain facts on identified theories 'is best left

to argument by counsel, cross-examination of the witnesses, and expert testimony where

appropriate.' " (People v. Wharton, supra, 53 Cal.3d at p. 570.) We review de novo the

trial court's refusal to give a requested pinpoint instruction. (People v. Johnson (2009)

180 Cal.App.4th 702, 707.) In doing so, we consider the instructions as a whole and

assume that the jurors are intelligent persons who are capable of understanding and

correlating all jury instructions. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)

       Here, the request to instruct on Carter's plea bargain highlighted specific evidence

(Carter's plea bargain) and invited the jury to draw the inference that Carter was not a

credible witness based on this specific evidence. The trial court properly rejected the

proposed pinpoint modification as argumentative. The requested instruction was also

duplicative of CALJIC No. 2.20 which instructed the jury it could consider "anything"

tending to prove or disprove the truthfulness of a witness. (People v. Clark (2011) 52

Cal.4th 856, 975 ["The court properly may refuse a proposed instruction . . . when the

point is covered in another instruction."].)


                                               22
       Even assuming defendants were entitled to the instruction, any error in not giving

it was harmless. In evaluating the impact of the trial court's refusal to give a pinpoint

instruction, we consider " 'the entire cause, including the evidence,' " defense counsel's

focus in closing argument on the evidence supporting the defense theory, and whether

any given instructions would have precluded the jury "from giving that evidence its due

weight." (People v. Wharton, supra, 53 Cal.3d at pp. 571-572.) We review the

erroneous failure to give a pinpoint instruction for prejudice under the Watson harmless

error standard. (Id. at p. 571; People v. Watson (1956) 46 Cal.2d 818, 836.)

       First, the absence of a specific reference to the plea bargain in CALJIC No. 2.20

did not preclude consideration of that factor as the instruction expressly permitted the

jury to consider anything in evaluating the truthfulness of a witness, including but not

limited to the factors listed. Additionally, the trial court thoroughly instructed the jury on

the requirement of corroboration for accomplice testimony and to view such testimony

with caution. (CALJIC Nos. 3.11, 3.12, 3.18.) Moreover, trial counsel for both

defendants cross-examined Carter about the plea bargain. Both counsel also argued to

the jury that the plea bargain Carter had with the prosecution was incentive for Carter to

lie and provided a reason to question Carter's credibility.

       In summary, the jury instructions, taken as a whole, and considered in conjunction

with counsel's argument to the jury, adequately informed the jury of its responsibility to

consider all relevant factors in assessing witness believability. Thus, even assuming the

trial court erred, the error was harmless.




                                              23
                               IV. Alleged Sentencing Error

A. Background

       The jury convicted defendants of two counts each of second degree robbery of

Buchanan and attempting to murder Buchanan and Perez and found true the attached

willfulness allegations to the attempted murder charges. The trial court sentenced Stoltz

to a consecutive term of 13 years for the robbery, consisting of the middle term of three

years, plus 10 years for the associated gang enhancement. Citing the probation officer's

report, the trial court declined to stay the robbery sentence under section 654, but stayed

the sentences for shooting at an occupied vehicle and street terrorism.

       The trial court sentenced Newsome to a consecutive term of 20 years for the

robbery, consisting of the upper term of five years, doubled under the "Three Strikes"

law, plus 10 years for the associated gang enhancement. The trial court imposed sentence

on the robbery charge without mentioning section 654. Citing section 654, the court

stayed Newsome's sentences for shooting at an occupied vehicle and street terrorism.

B. Robbery Sentence

       Defendants contend the trial court erred in not staying the sentence for the robbery

and the gang enhancement attached to that crime under section 654 because they had a

singular objective that evening, i.e., to relieve Buchanan of his $2,000—either by fraud or

by force. They contend the attempted murder and robbery charges all arose from a single

physical act, the shooting spree relating to the foiled robbery; thus, section 654 applies to

bar separate punishment for the robbery. We disagree.




                                             24
       Section 654 prohibits punishment for two crimes arising from an indivisible

course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) If, however, the

defendant had multiple or simultaneous objectives, independent of and not merely

incidental to each other, the defendant may be punished for each violation committed in

pursuit of each objective even though the violations share common acts or were parts of

an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639

& fn. 11; People v. Felix (2001) 92 Cal.App.4th 905, 915 ["multiple crimes are not one

transaction where the defendant had a chance to reflect between offenses and each

offense created a new risk of harm"].) "Because of the many differing circumstances

wherein criminal conduct involving multiple violations may be deemed to arise out of an

'act or omission,' there can be no universal construction which directs the proper

application of section 654 in every instance." (People v. Beamon, at pp. 636-637.)

Accordingly, whether a course of criminal conduct is divisible presents a factual issue for

the trial court, and we will uphold its ruling if supported by substantial evidence. (People

v. Coleman (1989) 48 Cal.3d 112, 162.) If the court makes no express section 654

finding, a finding that the crimes were divisible and thus subject to multiple punishments

is implicit in the judgment and must be upheld if supported by substantial evidence.

(People v. Lopez (2011) 198 Cal.App.4th 698, 717.)

       Here, defendants' act of taking Buchanan's personal property at gunpoint while

Buchanan sat in the Charger completed the robbery as defendants could have simply

escaped with the loot. Instead, when Buchanan then ran away and escaped in the Impala

with Perez, defendants gave chase in the Charger, firing or attempting to fire their


                                             25
weapons. This completed attempted murder as to Buchanan. Defendants contend they

committed their actions after the robbery in the Charger to further the robbery (i.e., obtain

the $2,000 purportedly in the Impala). Nonetheless, defendants' actions, while directed to

one objective, involved a course of conduct divisible in time that could give rise to

multiple violations and punishment. (People v. Beamon, supra, 8 Cal.3d at p. 639 & fn.

11.) Accordingly, section 654 does not apply. (In re Jesse F. (1982) 137 Cal.App.3d

164, 171 [assault separately punishable when committed "after the fruits of the robbery

have been obtained"].)

       Additionally, the trial court could have concluded defendants had a simultaneous

objective that was independent of and not merely incidental to the robbery. Namely,

Carter testified that defendants chased after the Impala because Buchanan tried to rob

them, this was disrespectful and the men decided to handle it with guns. Carter asked

Stoltz for permission to fire his gun because Stoltz was higher in the gang hierarchy.

Carter stated that other gang members would not be expected to "back [him] up" in a

one-on-one situation, but back-up would be expected in a group activity. Carter

claimed, however, that because Stoltz and Newsome were older, they faced no

consequences if they decided to not get involved. Thus, substantial evidence supported

the court's finding that section 654 did not preclude execution of the consecutive

sentences for defendants' attempted murder and robbery convictions.

C. Consecutive Sentences

       Defendants contend we should remand this matter to the trial court to permit it to

state its reasons for imposing consecutive sentences as to the attempted murder and


                                             26
robbery charges. Stoltz asserts the trial court should have stated reasons as to why it was

imposing consecutive as opposed to concurrent sentences on the respective counts

because he had no prior criminal record, was out of custody on bond during trial and had

committed no new violations. The People assert defendants forfeited this contention by

failing to object below. Assuming defendants did not forfeit this contention, the People

contend the record supported the court's discretionary sentencing choice.

       A trial court has discretion to determine whether several sentences are to run

concurrently or consecutively. (§ 669; People v. Shaw (2004) 122 Cal.App.4th 453,

458.) A sentencing court is required to provide a statement of reasons when imposing

consecutive sentences. (Cal. Rules of Court, rule 4.406(a), (b)(5).) A defendant's claim

that the trial court stated inadequate or erroneous reasons for imposing consecutive

sentences is forfeited on appeal unless the defendant timely and specifically objected

below on the ground sought to be raised on appeal. (People v. Boyce (2014) 59 Cal.4th

672, 730-731.)

       Here, although defendants raised no objection below, they contend forfeiture does

not apply because they were not given a meaningful opportunity to object as the trial

court did not provide an intended ruling, but simply pronounced the sentences. We

disagree.

       A trial court is not obligated to provide advance notice of its intended sentence.

(People v. Gonzalez (2003) 31 Cal.4th 745, 754-755.) "[T]he parties need only be

advised of the trial court's intended sentence 'during the course of the sentencing hearing

itself . . . .' " (Id. at p. 752.) "In the rare instance where the actual sentence is


                                                27
unexpected, unusual, or particularly complex, the parties can ask the trial court for a brief

continuance to research whether an objection is warranted, or for permission to submit

written objections within a specified number of days after the sentencing hearing." (Id. at

p. 754.)

       Here, before the trial court pronounced its sentences it noted that it had read the

probation reports and also the letters submitted regarding Newsome's character. The

court heard argument from counsel and then pronounced its respective sentences. After

apprising defendants of their sentences, the trial judge asked each counsel whether he had

"anything further." Both counsel responded that they had nothing further. The invitation

for further input from the parties afforded defendants a meaningful opportunity to assert

the objection they now attempt to raise on appeal. (People v. Boyce, supra, 59 Cal.4th at

p. 731.) Their failure to act resulted in a forfeiture of the claim. (Ibid.)

       Even if defendants had not forfeited this claim, we would deny it on the merits.

California Rules of Court, rule 4.425 enumerates "[c]riteria affecting the decision to

impose consecutive rather than concurrent sentences." California Rules of Court, rules

4.421 and 4.423 identify numerous aggravating and mitigating circumstances. A single

valid factor is sufficient to justify a sentencing choice. (People v. Dancer (1996) 45

Cal.App.4th 1677, 1695-1696.)

       Here, the probation reports, which the trial court considered, listed three

circumstances in aggravation and two in mitigation as to Stoltz and seven aggravating

and no mitigating circumstances as to Newsome. The trial court read letters about

Stoltz's good character and was aware of Stoltz's age and lack of a criminal record. The


                                              28
court also heard Stoltz's articulate statement of remorse for his crimes. The trial court

stated that it considered Stoltz's age and lack of record in deciding the appropriate

sentence, but concluded the gravity of the crimes outweighed these factors. As to

Newsome, the trial court noted the existence of a prior strike, that Newsome was on

probation at the time of the incident and the gravity of the crimes. The record shows the

court was aware it had sentencing discretion and that it exercised its discretion. On

whole, the trial court adequately justified the imposition of consecutive terms and did not

abuse its discretion. No remand for resentencing is required.

                              V. Mental Health Evaluations

A. Background

       When Carter was a co-defendant in this proceeding his counsel expressed a doubt

about Carter's competency. The trial court suspended the criminal proceedings and

ordered a competency evaluation under section 1368. The psychiatrist prepared a written

report and the prosecutor prepared a redacted version of the report to protect Carter's

personal information and attorney-client privilege. Carter was found to have been

malingering and thus competent. The court ordered that the reports be sealed. The trial

court had the prosecutor review the reports and provide to defense counsel all possible

exculpatory evidence within the meaning of Brady v. Maryland (1963) 373 U.S. 83

(Brady).

       Stoltz's counsel asked the trial court to unseal Carter's psychiatric reports or

review them, questioning whether it had followed the proper procedures in ordering the

reports sealed. Counsel also asked the trial court to review the redacted and unredacted


                                              29
reports and decide whether the prosecutor was correct in finding no Brady material in the

reports. The trial court reviewed the reports and concluded that they contained no

exculpatory evidence. The court also denied a request to unseal the reports.

B. Analysis

       Defendants do not challenge the sealing of the reports; rather, they request that we

review the sealed reports and reverse the judgment if the trial court failed to turn over any

documents material to their defense, including but not limited to exculpatory evidence

within the meaning of Brady or other material evidence subject to mandatory disclosure

under section 1054.1. The People argue psychiatric material is generally undiscoverable

prior to trial and we should not independently review the reports because defendants cited

no authority for such a review.

       Under Brady, the prosecution violates a defendant's federal due process rights

when it suppresses evidence material to the defendant's guilt or punishment, regardless of

the good faith belief of the prosecution. (Brady, supra, 373 U.S. at p. 87.) Prosecutors

have a duty to disclose "material exculpatory evidence whether the defendant makes a

specific request [citation], a general request, or none at all." (In re Brown (1998) 17

Cal.4th 873, 879.) An appellate court's role is to review the confidential records that

were not disclosed by the trial court "to determine whether they were material and should

have been disclosed." (People v. Martinez (2009) 47 Cal.4th 399, 453.)

       On our own motion, we have augmented the record to include copies of the

unredacted and redacted versions of the report. (Cal. Rules of Court, rule 8.340(c).) The

trial court properly sealed these reports and we add them to the record on appeal under


                                             30
seal. We have reviewed the unredacted and redacted versions of the report in camera and

conclude the undisclosed information was not material to defendants' defense and the

trial court did not err in denying disclosure.

                                       DISPOSITION

       The street terrorism convictions (count 5) are reversed as to both defendants. The

true findings on the gang enhancements connected to counts 1, 2, 3 and 4 are reversed

and the gang enhancements stricken. In all other respects, the judgments are affirmed.

The matter is remanded for resentencing consistent with this opinion. Thereafter, the trial

court is directed to prepare amended abstracts of judgment and to send certified copies of

the same to the Department of Corrections and Rehabilitation.



                                                                           McINTYRE, J.

WE CONCUR:


NARES, Acting P. J.


O'ROURKE, J.




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