Opinion
B162076.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. KARLA GODOY and MICHAEL RAY HERRERA, Defendants and Appellants.
Jeffrey A. Needelman, under appointment by the Court of Appeal, for Defendant and Appellant Karla Godoy. Jill Lansing, under appointment by the Court of Appeal, for Defendant and Appellant Michael Ray Herrera. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendants Karla Godoy and Michael Ray Herrera appeal from judgments of conviction entered after a jury trial. The jury found defendant Godoy guilty of being an accessory to the felonies (Pen. Code, § 32) of carjacking (id., § 215, subd. (a)) and second degree robbery (id., § 211). It also found her guilty of evading a peace officer (Veh. Code, § 2800.2, subd. (a)). The trial court sentenced defendant Godoy to concurrent upper terms for each of these offenses, for a total state prison term of three years.
The jury found defendant Herrera guilty of carjacking and second degree robbery and found true the allegations he personally used a handgun in the commission of the crimes (Pen. Code, § 12022.53, subd. (b)). It also found him guilty of possession of a firearm by a felon (Id., § 12021, subd. (a)(1)). Thereafter, the trial court found true the allegations defendant Herrera had three prior convictions of a serious or violent felony (Id., §§ 667, subds. (a), (b)-(i), 1170.12) and two prior convictions for which he served state prison terms (id., § 667.5, subd. (b)). It sentenced defendant Herrera to state prison for a term of 42 years to life.
On appeal, defendants raise numerous contentions regarding the conduct of the trial, post-trial proceedings and sentencing. We affirm the convictions. We remand the case to the trial court to modify defendant Godoys sentence and to correct defendant Herreras abstract of judgment.
FACTS
At about 11:00 a.m. on September 18, 2001, Dr. Arturo Lim left his office near downtown Los Angeles. As he approached his car, a black Camry, he noticed a man and a woman approaching. The man was wearing a black and white striped sweater. The woman was wearing dark clothing. As Dr. Lim opened his car door, the man pointed a gun at Dr. Lims abdomen and told him, "Dont look at me." Dr. Lim looked down at the gun.
The man demanded Dr. Lims wallet and car keys. He reached into Dr. Lims pocket and removed his money-several hundred dollars. Dr. Lim handed him his car keys. The man handed the car keys to the woman. He then told Dr. Lim to face the building and walk toward it, without looking back. Dr. Lim complied. The man told the woman to get in the car. The car then left the parking lot. Dr. Lims wallet was in the car. He estimated that it contained several hundred dollars.
Dr. Lim reported the incident to the police. He was unable to provide a detailed description of the man and woman. He said he believed the man was Hispanic based upon the mans accent.
Dr. Lim was unable to identify defendants from photographic or live lineups or at trial.
At about 1:45 p.m., Los Angeles Police Officer Rebecca Gordon and her partner received a Lo-Jack signal from a stolen car while on patrol in the southwestern part of Los Angeles. They received information on the stolen Camry and were told that the suspects were armed and dangerous. Shortly thereafter, they observed the Camry, with a woman driving and a man in the passenger seat.
The officers began a slow speed pursuit of the Camry as it entered a mall parking lot. Once they activated their lights and siren, the car left the parking lot and sped away. The driver committed numerous traffic violations, almost colliding with other vehicles, in an attempt to evade the officers. At one point, the man threw a handgun out of the passenger side window.
Eventually, the Camry hit a curb and came to a stop. The man and woman, whom Officer Gordon identified as defendants, got out of the Camry and began to run. Defendant Godoy was fumbling with a wallet in her waistband. It fell to the ground. She ran toward the police and was taken into custody. The wallet she dropped was Dr. Lims. She had a $ 100 bill in her possession. She had a black and white sweatshirt tied around her waist.
Defendant Herrera ran through a residential area in an attempt to avoid capture. Officers apprehended him a few minutes later. He had $ 366 in his possession. He was wearing a T-shirt.
Defense-Defendant Herrera
On the morning of September 18, 2001, defendants went to the home of defendant Herreras aunt, Estella Herrera Maldonado. She gave defendant Herrera $ 300 so he could buy some clothes to wear for job interviews. Defendant Godoy drove to the aunts house in a dark car that the aunt had not seen before. Defendant Godoy explained that someone had loaned it to her. Defendant Herrera did not know how to drive.
CONTENTIONS
I
Defendant Herrera contends he was denied due process of law when the trial court denied his motion to bifurcate trial of the gang allegation, in that the sufficiency of the gang evidence was highly questionable and its potential for prejudice was extreme. We conclude defendant was not prejudiced by the trial courts denial of his motion.
II
Defendant Herrera further contends he was denied due process when the trial court instructed the jury it could consider his poverty as a motive when determining his guilt. There was no prejudicial error associated with the admission of evidence on defendants poverty or the trial courts instruction on motive.
III
Defendant Herrera asserts the trial court erroneously instructed the jury as to how to determine when the carjacking had ended, in violation of his due process rights. Any error in the trial courts instruction could not possibly have prejudiced defendant.
IV
Defendant Godoy asserts the trial court erred in refusing her request to instruct the jury pursuant to CALJIC No. 4.40 on her defense that she was acting under threats and duress. There was no error, in that there was no substantial evidence to support such instruction.
V
Defendant Herrera avers the trial court denied him his constitutional right to self-representation by denying summarily his post-trial request to represent himself. Defendant has failed to prove prejudice from the trial courts denial of his request.
VI
Defendant Godoy contends the trial court should have stayed one of her convictions for being an accessory to a felony and her conviction for evading a peace officer pursuant to Penal Code section 654. While the trial court should have stayed the sentence on one of the accessory convictions, it properly imposed the sentence on the conviction for evading a peace officer.
VII
Finally, defendant Godoy contends the trial court erred in selecting the upper term sentences for her convictions, in that it based its decision on improper aggravating factors and failed to consider factors in mitigation, which would have outweighed the only legitimate aggravating factor. The trial court based its decision on proper aggravating factors, which outweighed any mitigating factors.
DISCUSSION
I
Defendant Herrera contends he was denied due process of law when the trial court denied his motion to bifurcate trial of the gang allegation, in that the sufficiency of the gang evidence was highly questionable and its potential for prejudice was extreme. We disagree.
Originally, the crimes charged were not alleged to have been gang-related. The case apparently was dismissed at some point and, when the complaint was refiled, it contained a gang allegation pursuant to Penal Code section 186.22. An officer testified at the preliminary hearing that he believed that defendant was a gang member and "if a gang member is involved in a crime to me thats a gang related crime." Defendant moved to set aside the gang allegation (id., § 995) on the ground there was insufficient evidence to establish probable cause that the crimes charged were gang related. This motion was denied.
Prior to trial, defense counsel requested that trial of the gang allegation be bifurcated, in that the gang evidence was highly prejudicial and not probative on the question whether defendant committed the crimes charged. The trial court denied this request.
During voir dire, defense counsel told the court that defendant Herrera had "voiced a considerable displeasure" and was "quite agitated" over trial of the gang allegation, based upon the comments of some of the potential jurors regarding gangs. Defense counsel reiterated his position that the gang evidence was more prejudicial than probative and again requested bifurcation. The trial court indicated it understood defendants position but it stood on its previous ruling.
During trial, defense counsel objected to the testimony of the prosecutions gang expert, Los Angeles Police Officer Magdaleno Gomez, "in its entirety," in that it was inapplicable to the instant case. The court conducted a hearing under Evidence Code section 402. Officer Gomez testified that defendant was a gang member. He testified basically that he believed the instant crimes were committed for the benefit of defendants gang, in that they were committed in public view within the gangs territory, and members of his gang had committed carjackings in the past in order to use the cars in the commission of other crimes. In addition, possession of a gun assists the gang in intimidating others.
The trial court found that even with Officer Gomezs testimony, there was a reasonable doubt as to whether defendants crimes were committed for the benefit of a criminal street gang. It therefore struck the gang allegation. It then instructed the jury: "The issue of the truth or nontruth of the allegation against the defendant concerning gang purpose, motive or enterprise is no longer before you. Do not consider this fact for any purpose. It is not relevant to whether the defendant in this case, Mr. Herrera, is guilty or not guilty of any of the counts charged against him or any other special allegations. . . ."
At the sentencing hearing, defense counsel moved for a new trial based, in part, on the trial courts failure to bifurcate trial of the gang allegation, resulting in discussion of the gang issue during voir dire. Defense counsel claimed this deprived defendant of a fair trial. The trial court responded that "this case boarders [sic] on the overwhelming. And I dont believe, with the admonitions we gave to the jury and the way we treated this matter, that your client was prejudiced thereby." The trial court then denied the new trial motion.
We agree with the trial court. Assuming arguendo that the trial court did err in denying defendants request to bifurcate trial of the gang allegations, reversal would be required only if it is reasonably probable defendant would have received a more favorable result had his request been granted. (People v. Hernandez (2003) 109 Cal.App.4th 1338, 1353; cf. People v. Maestas (1993) 20 Cal.App.4th 1482, 1498.) In this case, it is not reasonably probable defendant would have received a more favorable result had the trial court granted bifurcation.
As the trial court noted, the evidence against defendant bordered on the overwhelming. He was apprehended about three hours after the robbery and carjacking in the stolen car with the stolen wallet in his codefendants possession. His codefendant had tied around her waist a sweater matching the description of that worn by the male robber/carjacker. The male robber/carjacker used a handgun; defendant was observed tossing a handgun from the window of the stolen car. He had a large amount of cash in his possession; a large amount of cash was taken during the robbery; and his explanation for having it in his possession came from a biased witness and was not particularly credible.
In addition, the jurys exposure to gang "evidence" was minimal. According to defendant, it consisted mainly of an abstract discussion of the matter during voir dire, the allegation itself, and a photograph of defendants arms showing his gang-related tattoos. There was no other evidence introduced as to defendants gang membership or activities.
Again as the trial court observed, the jury was instructed not to consider the matter. The jury is presumed to have followed this instruction. (People v. Holt (1997) 15 Cal.4th 619, 662, 937 P.2d 213; People v. Delgado (1993) 5 Cal.4th 312, 331, 851 P.2d 811.) Moreover, it is clear the jury considered each count individually and rendered its verdict based upon the evidence as to that count. While the jury convicted defendant of carjacking, robbery and possession of a firearm by a felon as charged, it acquitted him of evading a peace officer.
In sum, defendant was not prejudiced by any error in the trial courts refusal to bifurcate the gang allegation. (See People v. Hernandez, supra, 109 Cal.App.4th at p. 1353.) Accordingly, reversal is not required.
II
Defendant Herrera further contends he was denied due process when the trial court instructed the jury it could consider his poverty as a motive when determining his guilt. Again, we disagree.
Defendants aunt testified that she gave him $ 300 to buy clothes to wear for job interviews. On cross-examination, she testified that defendant needed to get a job to support himself and codefendant Godoy. Defendant had no home and was staying at the Dream Center, a shelter. At times, he had been sleeping under the freeway. In the past, defendants aunt had given him 20, 40 or 50 dollars, but she could not continue to do so "because it wasnt doing no justice to him. He needed to get a job." Defendant admits his trial counsel did not object to the prosecutors questions which elicited this information, waiving his claim of error in its admission. He argues, however, that his trial counsels failure to object to the questions deprived him of the effective assistance of counsel.
The trial court instructed the jury pursuant to CALJIC No. 2.51: "Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty." Defendant does not claim error in the trial courts giving of this instruction but rather in the admission of the evidence of his poverty, to which the instruction could be applied.
In general, "evidence of a defendants poverty . . . is inadmissible to establish a motive to commit robbery or theft, because reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice." (People v. McDermott (2002) 28 Cal.4th 946, 999.) Even if defense counsels failure to object to the admission of this evidence or to request a limiting instruction constituted ineffective assistance of counsel, reversal is not warranted unless it is reasonably probable defendant would have received a more favorable result absent counsels omissions. (In re Avena (1996) 12 Cal.4th 694, 721, 909 P.2d 1017.)
As discussed in part I, ante, the evidence against defendant was quite strong. It is not reasonably probable he would have received a more favorable result had defense counsel objected to the prosecutors questions regarding his homelessness and lack of money. Defendant himself introduced evidence of his own poverty when his aunt testified that she gave him money so he could buy clothes to go on job interviews. It is reasonably inferable from this testimony that defendant had no job and did not have enough money to buy clothes for job interviews. Accordingly, reversal is not required. (In re Avena , supra, 12 Cal.4th at p. 721.)
III
Defendant Herrera asserts the trial court erroneously instructed the jury as to how to determine when the carjacking had ended, in violation of his due process rights. The assertion is without merit.
The trial court instructed the jury pursuant to CALJIC No. 9.40.1: "For the purposes of determining whether a person is guilty as an aider and abettor to carjacking or robbery, the commission of the crime of carjacking or robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety."
During deliberations, the jury requested that the trial court answer the following questions: "1.) At what point if ever did the crime of car jacking end[?] [P] 2.) What does it mean to come to a place of safety after the crime[?] [P] 3.) If the crime of car jacking ended, what impact does it have on count 3 for the passenger[?]" In response, the trial court, with the agreement of counsel, instructed the jury that it was for them to determine these matters.
Defendant argues that the trial court should have instructed the jury that CALJIC No. 9.40.1 did not apply to the charge of evading a peace officer. Its failure to do so enabled the jury to find him guilty of evading a peace officer based upon his having committed the robbery and carjacking.
As the People point out, however, defendant was acquitted on the charge of evading a peace officer. Any error therefore could not possibly have prejudiced him in the manner he suggests. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
IV
Defendant Godoy asserts the trial court erred in refusing her request to instruct the jury pursuant to CALJIC No. 4.40 on her defense that she was acting under threats and duress. We disagree.
Defense counsel requested that the trial court instruct the jury on threat and menace pursuant to CALJIC No. 4.40. The trial court refused the instruction, stating that it did not believe there was sufficient evidence in the record to require that instruction. Defense counsel also requested a modified version of CALJIC No. 12.79, relating back to CALJIC No. 4.40. The trial court refused that one as well.
CALJIC No. 4.40 provides: "A person is not guilty of a crime when she engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances: [P] 1. Where the threats and menaces are such that they would cause a reasonable person to fear that her life would be in immediate danger if she did not engage in the conduct charged, and [P] 2. If this person then actually believed that her life was so endangered. . . ."
CALJIC No. 12.79 addresses the failure of a driver of a vehicle to stop after an accident when a non-owner rider has control over the operation of the vehicle.
The trial court is required to instruct the jury on a defense relied upon by the defendant only if the defense is supported by substantial evidence. (People v. Watson (2000) 22 Cal.4th 220, 222, 990 P.2d 1031.) Substantial evidence is that which is reasonable, credible and of solid value. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) Although all reasonable inferences must be drawn in support of the defense, the court "may not go beyond inference and into the realm of speculation in order to find support for [the defense]. A finding . . . which is merely the product of conjecture and surmise may not be affirmed." (People v. Memro (1985) 38 Cal.3d 658, 695, 214 Cal. Rptr. 832, 700 P.2d 446.)
Instruction on threat and menace is required if there is evidence of threat or menace accompanied by a demand that the defendant commit the crime charged. (People v. Steele (1988) 206 Cal. App. 3d 703, 706-707, 253 Cal. Rptr. 773.) The threat or menace must be that which would cause a reasonable person to fear that her life would be in immediate danger if she did not commit the crime. (CALJIC No. 4.40.) In addition, the defendant must actually have believed that her life was in immediate danger if she did not commit the crime. (Ibid.)
Here, Dr. Lim testified that defendant Herrera told defendant Godoy to get into the car. Defendant Godoy never touched him or said anything to him. She was merely present while defendant Herrera told him what to do.
Officer Gordon testified that after the Camry hit the curb and stopped, defendant Godoy ran back toward the officers car. After being taken into custody, she was somewhat cooperative.
Defendant Godoy argues that the foregoing constituted substantial evidence of threat or menace, in that defendant Herrera told her what to do, he had a gun, and she ran toward the police, indicating she had been in fear for her life. We disagree with defendants assessment of the evidence. There was no evidence defendant Herrera threatened her with the gun. In fact, she continued in her attempt to evade the police after he threw the gun out the window. Defendant Herreras direction to her in the commission of the crimes is not the same as a demand that she commit the crimes under threat of death. There also was no evidence defendant actually feared for her life. It is pure speculation to say she must have been in fear for her life because defendant Herrera-who was her boyfriend-had a gun and she ran toward the police after she hit the curb in the stolen Camry and was forced to abandon the car.
Accordingly, the trial court did not err in refusing to instruct the jury on the proffered defense of threat and menace. There was no substantial evidence to support such instruction. (People v. Watson , supra, 22 Cal.4th at p. 222; People v. Steele, supra, 206 Cal. App. 3d at pp. 706-707.) indicated to me that he or his family or both have contacted some lawyers considering trying to retain counsel for the purpose of the motion for new trial and/or sentencing, and [defendant] also informs me, if the court grants his pro per status, and he was pro per at one time on this case, under a different case number, that he would be requesting about a one-month continuance so he could prepare his motion, or if they retained counsel, that that lawyer will be prepared within that period of time."
Since instruction on threat and menace was not required, we need not address defendant Godoys contention that the trial court erred in failing to instruct the jury sua sponte on her burden of proof that she acted under threats and menaces.
The trial court responded: "The court is prepared to go ahead with sentencing today and is not inclined to grant any further continuance in this matter. There is no private counsel or any other counsel who is apparently here or ready. [P] And the request for pro per status coming at this time and at the hearing for sentencing will be denied."
Defense counsel then explained that he and defendant were "a little at odds" over the motion for new trial. Defense counsel wanted to make the motion under subdivisions 3 and 5 of Penal Code section 1181 (jury misconduct, misdirection of the jury), but defendant wanted to make the motion under subdivision 8 as well, based on newly discovered evidence. Defense counsel did not believe that was a proper ground and had explained his position to defendant.
The trial court explained to defendant that he was represented by counsel, who did not wish to make a new trial motion based on newly discovered evidence. Therefore, the court would not consider that ground. It then denied the motion and proceeded to sentencing.
Under Faretta v. California (1975) 422 U.S. 806, 819-821, 45 L. Ed. 2d 562, 95 S. Ct. 2525, a defendant has the "right to represent himself if he voluntarily and intelligently elects to do so." (People v. Burton (1989) 48 Cal.3d 843, 852, 258 Cal. Rptr. 184, 771 P.2d 1270.) If the defendant "" has the mental capacity to waive his constitutional right to counsel with a realization of the probable risks and consequences of his action,"" a timely Faretta motion must be granted. (People v. Joseph (1983) 34 Cal.3d 936, 943, 196 Cal. Rptr. 339, 671 P.2d 843.)
The right of self-representation must be invoked within a reasonable time prior to the commencement of trial. (People v. Horton (1995) 11 Cal.4th 1068, 1110, 906 P.2d 478; People v. Burton, supra, 48 Cal.3d at p. 852; People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal. Rptr. 8, 560 P.2d 1187.) If a Faretta motion is not made within a reasonable time prior to the trials scheduled commencement, its grant or denial is within the trial courts sound discretion. (People v. Clark (1992) 3 Cal.4th 41, 98, 833 P.2d 561; Burton, supra, at p. 852; Windham, supra, at p. 128.) If the courts discretion has been abused, reversal is required only if it is reasonably probable the defendant would have received a more favorable result absent the abuse. (People v. Nicholson (1994) 24 Cal.App.4th 584, 594-595; People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.)
The "reasonable time" requirement is necessary "to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice." (People v. Burton , supra, 48 Cal.3d at p. 852; accord, People v. Horton, supra, 11 Cal.4th at p. 1110.) If the motion is made just prior to trial, necessitating a continuance in order to allow the defendant to prepare adequately for trial, the defendant should make some showing of reasonable cause for the late request for self-representation. (Burton , supra, at pp. 852-853; People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; see also Horton, supra, at p. 1110.) In deciding whether or not to grant the motion, the trial court should consider such factors as whether the defendant is ready for trial or will need a continuance in order to prepare, the delay or disruption the continuance would cause, the quality of representation the defendant has received from counsel thus far, the defendants prior proclivity to substitute counsel, the reasons for the request to dispense with counsel, and the length and stage of the proceedings. (People v. Cummings (1993) 4 Cal.4th 1233, 1320, 850 P.2d 1; Burton, supra, at p. 853; Windham, supra, at p. 128.)
Defendant acknowledges his request for self-representation on the day of the sentencing hearing was untimely. (People v. Rivers, supra, 20 Cal.App.4th at p. 1048.) He contends, however, the trial court abused its discretion in summarily denying his request without holding a hearing in order to consider the appropriate factors prior to ruling. The trial court considered only the untimeliness of defendants request and the need for a continuance were the request to be granted. Defendant suggests that had the court held a hearing, it could have inquired as to the newly discovered evidence on which defendant wanted to base his motion for new trial and determined whether defendant had a legitimate reason for seeking to represent himself.
Assuming arguendo the trial court abused its discretion in failing to hold a hearing, reversal is required only if defendant was prejudiced thereby, i.e., if it is reasonably probable the defendant would have received a more favorable result absent the abuse. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Nicholson, supra, 24 Cal.App.4th at pp. 594-595; People v. Rivers, supra, 20 Cal.App.4th at p. 1050.) It is defendants burden as the appealing party to demonstrate that the error was prejudicial. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574, 224 Cal. Rptr. 664, 715 P.2d 624; see People v. Balderas (1985) 41 Cal.3d 144, 171, 222 Cal. Rptr. 184, 711 P.2d 480.) Absent any indication as to what the newly discovered evidence was and the circumstances of its discovery, we have no way of knowing whether it is reasonably probable that defendant would have been entitled to a new trial on that ground. Hence, defendant has failed to meet his burden of demonstrating prejudicial error in the trial courts denial of his motion to represent himself.
VI
Defendant Godoy contends the trial court should have stayed one of her convictions for being an accessory to a felony and her conviction for evading a peace officer pursuant to Penal Code section 654. We agree as to her sentence for being an accessory to a felony but not as to her sentence for evading a peace officer.
Penal Code section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." (Subd. (a).) The section protects against multiple punishment for "multiple statutory violations produced by the same act or omission. [Citation.] However, because the statute is intended to ensure that defendant is punished commensurate with his culpability [citation], its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal. Rptr. 401, 768 P.2d 1078.)
In order to determine whether a course of conduct is indivisible, the court looks to "defendants intent and objective, not the temporal proximity of his offenses." (People v. Harrison, supra, 48 Cal.3d at p. 335.) Thus, "if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [P] If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (Ibid .)
Whether a course of conduct is indivisible for the purpose of section 654 is primarily a factual determination for the trial court. (People v. Harrison, supra, 48 Cal.3d at p. 335; People v. Nelson (1989) 211 Cal. App. 3d 634, 638, 259 Cal. Rptr. 549.) The trial courts finding must be upheld on appeal if supported by substantial evidence. (Nelson , supra, at p. 638; People v. Green (1988) 200 Cal. App. 3d 538, 543-544, 246 Cal. Rptr. 164.)
The People concede that one of defendants sentences for being an accessory to a felony should have been stayed under Penal Code section 654, in that the robbery and the carjacking were part of an indivisible course of conduct. (People v. Harrison, supra, 48 Cal.3d at p. 335.) The People do not agree, however, that defendants sentence for evading a peace officer should have been stayed under section 654 but claim that defendants evasion of a peace officer constituted a separate course of conduct.
The trial court stayed defendant Herreras sentence for robbery pursuant to Penal Code section 654.
It was nearly two hours after defendants took Dr. Lims car and money that the police spotted the stolen Camry and defendant embarked on her attempt to avoid apprehension. Defendant harbored different intents when she assisted defendant Herrera in leaving the scene after the theft of the car and money and when she later attempted to avoid apprehension for the thefts. Moreover, when she observed the police officers and sped away in an attempt to avoid apprehension, she engaged in a separate volitional act after a period of time in which she could have considered her actions. Her conduct in attempting to evade the police was separated from the other offenses by time and the opportunity to discontinue her criminal behavior. Accordingly, substantial evidence supports imposition of a separate sentence for evading a peace officer. (People v. Harrison, supra, 48 Cal.3d at p. 335; People v. Trotter (1992) 7 Cal.App.4th 363, 368.)
VII
Finally, defendant Godoy contends the trial court erred in selecting the upper term sentences for her convictions, in that it based its decision on improper aggravating factors and failed to consider factors in mitigation, which would have outweighed the only legitimate aggravating factor. We disagree.
In sentencing defendant, the trial court stated that it was imposing the upper terms, in that the aggravating factors outweighed the mitigating factors. As aggravating factors, it found that the crimes to which defendant was an accessory involved great violence and the potential for great harm (Cal. Rules of Court, rule 4.421(a)(1)), defendant Herrera used a firearm in the commission of these crimes (id., rule 4.421(a)(2)), and there was planning involved in the commission of the crimes (id., rule 4.421(a)(8)). In addition, defendant had a prior criminal record, her crimes were of increasing seriousness (id., rule 4.421(b)(2)), and she was on misdemeanor summary probation (id., rule 4.421(b)(4)).
Defendant first contends the trial court erred in considering factors related to the crimes of robbery and carjacking, in that she was acquitted of those crimes; she was convicted of being an accessory to those crimes only. She notes that "the crime of accessory is separate and distinct from the underlying felony. The state of mind required for being an accessory after the fact excludes that intent and state of mind required to be a principal. [Citations.] The crime of accessory after the fact is complete when the accused assists the principal in escaping apprehension knowing that person has committed a felony." (People v. Perryman (1987) 188 Cal. App. 3d 1546, 1549, 234 Cal. Rptr. 181.)
The trial court did realize there was a distinction between commission of the underlying crimes and being an accessory to the commission of those crimes. Its statements indicated it was imposing the aggravated sentence based upon the seriousness of the crimes to which defendant was an accessory.
As the People point out, the factors listed in the California Rules of Court for making discretionary sentencing decisions are not exclusive. The court may consider other factors "reasonably related to the decision being made." (Cal. Rules of Court, rule 4.408(a); People v. Garcia (1989) 209 Cal. App. 3d 790, 794, 257 Cal. Rptr. 495.) The seriousness of the crimes defendant was willing to serve as an accessory to certainly is a factor reasonably related to the decision whether to impose an aggravated sentence.
Defendant also contends the trial court erred in considering her prior record, which consisted of two convictions in 1997, for prostitution and for giving false identification to peace officers. She was placed on summary probation for both of these convictions. She argues that her "prior convictions were neither numerous nor of increasing seriousness. Indeed for this reason, the probation department considered [her] criminal record to be insignificant and recommended that the trial court consider it as a factor in mitigation."
The probation officer also noted that defendants "present offense is her most serious thus far and makes her an extreme threat to the safety and property of the community. Her involvement with the co-defendant is undoubtedly as a result of her gang affiliation. [P] Although she is eligible for probation, she is not suitable based on the dangerous and serious nature of the present offense." The probation officer went on to recommend a state prison term both to hold her accountable for her behavior and to protect society.
Defendants involvement as an accessory to armed robbery and carjacking does indicate a criminal record of increasing seriousness. The trial court properly considered this as an aggravating factor. Defendant acknowledges that her prior unsatisfactory performance on probation also was an aggravating factor properly considered by the trial court.
Defendant further argues that the trial court failed to consider a number of mitigating factors: that she "was a passive participant or played a minor rule in the crime" (Cal. Rules of Court, rule 4.423(a)(1)); she "participated in the crime under circumstances of coercion or duress" (id., rule 4.423(a)(4)); "no harm was done or threatened against the victim" (id., rule 4.423(a)(6)); she "was suffering from a mental or physical condition that significantly reduced culpability for the crime" (id ., rule 4.423(b)(2)); and she "voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process" (id., rule 4.423(b)(3)).
It is true that defendant was a passive participant or played a minor role in the robbery and carjacking. As previously discussed, however, there is no substantial evidence she participated in the crimes due to coercion or duress. It is not true that no harm was threatened against the victim. Defendant Herrera held a gun to Dr. Lims abdomen; this constituted an implicit threat to the victim.
The probation officers report indicates that defendant has suffered from depression since 1977 and is taking medication for it. There is nothing to show that her depression played any role in her commission of the crimes and reduced her culpability for them. The record also does not show that defendant "immediately surrendered to the police as soon as she was able to free herself from Herrera," as she claims. It shows only that after she crashed the stolen Camry into the curb, she ran in the direction of the police and she later was "somewhat" cooperative with them.
Thus, the only proper mitigating factor the trial court may have failed to consider was that she was a passive participant or played a minor role in the robbery and carjacking. (Cal. Rules of Court, rule 4.423(a)(1).) In light of the aggravating factors listed by the trial court when sentencing her, however, it is not reasonably probable she would have received a more favorable sentence had the trial court considered this factor. Therefore, remand for resentencing is unnecessary. People v. Williams (1991) 228 Cal. App. 3d 146, 153, 278 Cal. Rptr. 801.)
Since defendant was not prejudiced by any failure to consider a proper mitigating factor, she was not deprived of the effective assistance of counsel in her trial counsels failure to bring the factor to the trial courts attention. (In re Avena , supra, 12 Cal.4th at p. 721; People v. Ledesma (1987) 43 Cal.3d 171, 216-217, 233 Cal. Rptr. 404, 729 P.2d 839.) We also need not resolve the Peoples claim that she waived her contention on appeal by failure to object below. (People v. Scott (1994) 9 Cal.4th 331, 353, 885 P.2d 1040; but see People v. Middleton (1997) 52 Cal.App.4th 19, 37 .)
We also note an error in defendant Herreras abstract of judgment. The abstract lists his conviction on count 4, violation of Penal Code section 12021, subdivision (a)(1), as "elude/flee from pursuing ofcr" rather than as possession of a firearm by a felon. This must be corrected.
The judgments of conviction are affirmed. The case is remanded as to defendant Godoy, and the trial court is directed to stay one of her sentences for being an accessory to a felony pursuant to Penal Code section 654 and to forward a corrected abstract of judgment to the Department of Corrections. The clerk of the court is directed to prepare a corrected abstract of judgment as to defendant Herrera, properly identifying his conviction on count 4, and forward a copy to the Department of Corrections.
We concur: ORTEGA, J., VOGEL (MIRIAM A.), J.
V
Defendant Herrera avers the trial court denied him his constitutional right to self-representation by denying summarily his post-trial request to represent himself. Defendant has failed to demonstrate that his averment has merit.
At the sentencing hearing, defense counsel informed the court "with regards to making a motion for new trial and for sentencing that [defendant] wishes to go propria persona, and hes