Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. YA063171, Eric C. Taylor, Judge.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Edward Jamar Raglin appeals from his convictions of murder, robbery, and attempted robbery. He challenges the sufficiency of the evidence to support the murder conviction. We conclude the conviction is supported by substantial evidence. Appellant also argues the trial court erred in denying his motion for mistrial. We find no reversible error. We agree with appellant that the trial court erred in doubling his sentence of life imprisonment without possibility of parole on the murder charge under the Three Strikes law, and in imposing a parole revocation fine.
FACTUAL AND PROCEDURAL SUMMARY
Applying the accepted appellate standards of review, we view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
On the evening of February 26, 2003, Gina Simpson and several other people were inside the Vermont Social Club in south Los Angeles. The club served as a bookie joint and a place for people to socialize. There were two doors at the front entry, one a security door and the other wood. The security door was kept locked and had to be opened with a key to allow entry or exit.
One of the persons present that night was Monique McFall. At 7:30 p.m., a person known as “Marshmallow” drove McFall on an errand, using Simpson’s car. They returned to the club and were admitted by Simpson. McFall told Simpson she was going across the street to check on her children and husband. Simpson let McFall and Marshmallow out of the club.
Appellant knocked on the security door. Simpson went to the door, recognized appellant as someone who had been coming to the club to purchase drugs for two months, and admitted him. She had seen him at the club, where he purchased drugs, every other day. Appellant asked for “Tucker” who was often at the club selling drugs, but was not there that night. When he learned that Tucker was not present, appellant left. Simpson let appellant out of the security door, then closed and locked it.
Less than three minutes later, appellant returned and knocked on the door. Simpson went to the door, recognized appellant, and unlocked the door. Appellant, followed by a younger man, shoved his way into the room. The men pushed Simpson into the main room. This time, appellant was wearing black gloves. The accomplice was holding a gun, described by Simpson as a .357 revolver.
Appellant ordered everyone onto the floor. Meanwhile, the accomplice stood between the security door and the wooden door and waved the gun back and forth while pointing it at the people inside the room. He was looking both into the room and out of the door. Appellant started searching everybody and taking their money. Simpson saw appellant take money from a woman named Peggy. She also saw him take money from two men named Robert and Mack.
As the robberies continued, Simpson heard McFall’s voice outside of the social club. She wanted to enter the front door. The accomplice told McFall that if she didn’t get away from the door, “[H]e was going to kill her ass.” Simpson then heard McFall say “Call 911.” Appellant and his accomplice started to leave. Appellant said: “Y’all can’t serve nothing, y’all can’t sell nothing in the Playboy hood.” Then appellant and his accomplice left through the front door.
After they left, Simpson heard a single gunshot. Her estimates varied on the time between the departure of the robbers and the shot. On direct, she testified that she heard the shot within five minutes after the men left. Later in her testimony, the prosecutor conducted an experiment to determine the elapsed time. Simpson was instructed to watch Detective Steinwand walk out the door of the courtroom and then to indicate when the same period between the departure of appellant and the shot had elapsed. The time period identified by Simpson was eleven seconds. Simpson was shown photographs by police officers at the scene. She identified appellant, but noted that his hair appeared different in the photograph.
Marva Hoard also was inside the social club when it was robbed. She was in a back bedroom and was robbed by appellant. He walked toward the front of the club, and she heard someone say something about a certain Crips gang. From the time appellant left her to return to the front room, she said it was seconds “[i]f not a little longer” before she heard a gunshot. At trial, she marked the elapsed time between the statement and the shot at seven seconds.
Eligah White was working at the liquor store next door to the social club on the night of the murder. McFall borrowed money from him to purchase liquor, then left. She returned, upset and excited, and asked him to call 911 because someone was robbing the social club. White said he did not want to get involved, and that McFall should make the call. She went outside, then returned, saying the robbers had guns. White urged McFall to stay in the store. She did not take this advice, and went outside again. Ten seconds later, he heard a gunshot. People screamed and ran, then White looked outside. He saw McFall ducking by her car, and begged her to come into the store. She ran inside, holding her hand in the middle of her chest. She fell to the floor of the store, fatally wounded.
Appellant was charged with and convicted of murder (Pen. Code, § 187, subd. (a)); two counts of second degree robbery (§ 211); and two counts of attempted second degree robbery (§§ 664/211). The jury found true an allegation that the murder occurred in the commission of a robbery (§ 190.2, subd. (a)(17)), and firearm enhancements based on a principal’s personal use of a firearm causing death (§ 12022.53, subds. (b), (c), (d) & (e)(1)). The trial court struck one prior serious felony conviction allegation, and appellant admitted another prior strike conviction and having served a prior prison term. Appellant was sentenced to state prison for two indeterminate terms of life without possibility of parole, plus a consecutive term of 25 years to life. He filed a timely appeal.
All statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
I
Appellant argues the evidence is insufficient to support his murder conviction because a reasonable jury could not have inferred from the evidence that it was his accomplice who shot McFall.
We review the evidence in accordance with familiar standards of appellate review. “A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. (See People v. Johnson (1980) 26 Cal.3d 557, 578.) Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “The jury, not the appellate court, must be convinced of guilt beyond a reasonable doubt; for us, ‘[t]he test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citation.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024, quoting People v. Mincey (1992) 2 Cal.4th 408, 432.)
Appellant cites the absence of direct evidence identifying either him or his accomplice as the shooter and argues that the verdict is not supported by circumstantial evidence beyond a reasonable doubt. He relies on evidence from employees of the adjacent liquor store that there were as many as 20 people outside the social club at the time the shot was fired. He also cites evidence by Deputy Mark Marbach, a Sheriff’s Department gang expert, that the Vermont Social Club is in the territory of two cliques of the Playboy Crips gang. From this, appellant argues: “Because of the number of people seen by witnesses outside the club; the high-density, high-activity location where the shooting occurred; the likelihood that gang members and/or other persons in the area would have been carrying weapons while out on the street and the apparent occurrence of a fight at the same time that [appellant] and his accomplice were leaving the club, a reasonable jury could not have inferred beyond a reasonable doubt that the accomplice was the shooter.”
Appellant’s argument is speculative. The evidence established that McFall demanded entry into the club; that appellant’s accomplice threatened to kill her if she did not go away; that McFall said, “Call 911” loudly enough to be heard inside the social club; and that appellant and his accomplice left the club shortly after she made that statement. The shooting followed immediately.
The jury heard various estimates of the time that elapsed between the departure of appellant and his accomplice from the social club and the fatal shot. Ms. Simpson originally testified that it was five minutes, but after the experiment at trial to time the period, she said it was eleven seconds. As the result of a similar experiment at trial, Ms. Hoard said the time was seven seconds. Appellant attempts to dismiss this trial testimony as the result of a “courtroom stunt.” We find no merit in his analogy to the world record for the 100 meter dash, from which he asserts that appellant and his accomplice could have been at least 50 yards away from the scene within seconds, before the fatal shot was fired. There is no evidence to support that theory.
Without citation to authority, appellant argues that evidence of the courtroom time experiments cannot be considered solid and reliable because they were necessarily influenced by intangible courtroom circumstances. The jury was entitled to credit the shorter time estimates given by Ms. Simpson and Ms. Hoard, which led to the inference that the shooting occurred immediately upon the accomplice’s departure from the club. The liquor store employee placed McFall immediately outside the club when she was shot. The fatal bullet was consistent with the gun the accomplice carried. This is substantial evidence from which the jury could conclude that appellant’s accomplice shot McFall, as threatened, immediately as they left the scene of the robberies. There was no evidence that anyone else at the scene was armed, or shot McFall.
II
Appellant argues the trial court erred in denying his motion for mistrial when the prosecution’s gang expert revealed appellant had two prior robbery convictions. He contends that his federal and state constitutional rights to due process and a fair trial were violated.
The mistrial motion was based on testimony by the prosecution gang expert, Deputy Marbach. On cross-examination by defense counsel, the following exchange occurred:
“Q. Now, you’ve testified that you’ve had no prior contact with my client other than in the investigation of this case. You’ve also outlined different crimes that these gangs are involved in such as assault with deadly weapons, drugs, rapes, drive-by shootings, witness intimidation?
“A. Yes.
“Q. In regards to those incidents, . . . are we to take it that you have no personal knowledge as to my client being involved in any of that activity? That’s ‘yes’ or ‘no.’
“A. Well, yes, I do have information that he was involved in some of that activity.
“Q. Other than his being charged in this case?
“A. It’s been brought to my attention that he may be involved in witness intimidation involved in this case.
“Q. My question specifically, deputy, was other than involvement in this case.
“A. I’m not sure. You are saying what about him?
“Q. I’m asking you whether you have any firsthand knowledge, any personal knowledge of my client being involved in any criminal activity other than the involvement of this case?
“A. Okay. Well, the witness intimidation would be a separate case. It’s just been brought to my attention.
“Q. Let me clarify it for you.
“A. Okay.
“Q. The witness intimidation is under the purview of this case, for the purpose of this question.
“A. Okay.
“Q. It’s a simple ‘yes’ or no.’ Have you any personal knowledge of my client being involved in any criminal activity.”
At that point, the district attorney asked to approach the bench. The witness interjected: “Oh, yes, actually.” At that point, the court instructed the witness to “Hold on” and the prosecutor withdrew his objection. At that, the witness said: “Actually, I believe he has two prior convictions for robbery that I reviewed.” The defense attorney then asked:
“Q. Were you involved in the investigation?
“A. No.
“Q. So you don’t have any personal knowledge, do you?
“A. Well, I reviewed his convictions for robbery.
“Q. Were you involved in the investigation of those cases?
“A. No.
“Q. So you do not have any personal knowledge?
“A. Well, I guess it depends what’s personal knowledge.”
Defense counsel moved to strike the deputy’s response for lack of personal knowledge. The trial court denied the motion and called counsel to sidebar. The court and counsel met in chambers. Their discussion was not reported. They returned to the courtroom and discussed whether striking the testimony about the priors, with an instruction to disregard the testimony, would be sufficient. The court indicated that it could not see why a limiting instruction would not be appropriate. Counsel for appellant argued that he had been unduly prejudiced, particularly because the witness was a deputy sheriff. In response to a question by the court, the prosecutor stated that he had not warned the witness to avoid mentioning the priors because he did not anticipate the subject would come up in examination.
Defense counsel argued that the prosecution had raised the issue of the priors by its direct examination about criminal activity of street gangs, but that she had avoided the subject of robberies in her cross-examination. The prosecutor pointed to the transcript of the colloquy, which demonstrates that the defense question, whether the deputy had personal knowledge of appellant’s involvement in any criminal activity, was very broad. When the trial court asked the prosecutor why he withdrew his objection, the prosecutor said he did not believe it was his burden to stop defense counsel from asking questions that might elicit answers she did not like. The court noted that some jurors had surprised expressions when they heard the deputy testify about appellant’s prior robbery convictions.
The jury was instructed “to disregard and to ignore the testimony regarding any prior convictions.” A ruling on appellant’s motion for mistrial was deferred until the following day to allow counsel and the court to conduct research on the issue. The following morning, counsel for appellant argued that because this was a robbery and robbery-murder special circumstance case, the evidence of the prior robbery convictions was particularly prejudicial.
After argument from both counsel, the trial court ruled that it would inquire of the jury. The court asked: “I’m going to ask the jury a general question and that is whether or not any of you have any—will have any problem at this point following any of the instructions that you’ve been given throughout this trial? Does anyone say yes? Any of the instructions at all, the limine instructions, the instructions that I gave you prior to the trial, anything?” The jury responded in the negative. The mistrial motion was denied.
Respondent argues that appellant failed to preserve the federal constitutional issue. Counsel for appellant repeatedly argued that her client would be deprived of a fair trial because the jury learned about his prior robbery convictions. We conclude that this was sufficient to preserve the point.
“‘Although most cases involve prosecutorial or juror misconduct as the basis for [a mistrial] motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice.’ (People v. Wharton (1991) 53 Cal.3d 522, 565.) . . . . ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ (People v. Haskett (1982) 30 Cal.3d 841, 854.)” (People v. Williams (1997) 16 Cal.4th 153, 211.) “‘A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.’ (People v. Bolden (2002) 29 Cal.4th 515, 555.)” (People v. Williams (2006) 40 Cal.4th 287, 323.)
Respondent cites People v. Marshall (1996) 13 Cal.4th 799, a capital murder case. A prosecution witness testified about a conversation with the defendant which established a motive for the murder of the defendant’s wife. The witness said the defendant told him he was an ex-felon, that he would lose everything if his wife left him, and that he would see her dead before he lost everything. The trial court denied a motion for mistrial, and stated an inclination to admonish the jury. But defense counsel never submitted a proposed admonition. The trial court granted defense counsel’s motion to strike the ex-felon testimony, but never did so.
The Marshall court concluded: “Reviewing the court’s denial of the [mistrial] motion for abuse of discretion, we are unable to conclude the court committed reversible error. True, the solution most agreeable to the defense—striking the ex-felon statement—was not effectuated. Nevertheless, at no time during the subsequent progress of the trial was the jury’s attention recalled to the statement, whether by an (undesired) admonishment, argument of counsel, or otherwise.” (People v. Marshall, supra, 13 Cal.4th at p. 839.) Other evidence rebutted the testimony of motive, and the defendant was in fact, an ex-felon. The Supreme Court acknowledged that striking the statement would have been preferable, but concluded that there was no prejudice requiring reversal. (Ibid.)
In People v. Avila (2006) 38 Cal.4th 491, the Supreme Court held that the trial court did not abuse its discretion in denying a mistrial motion after a prosecution witness testified that a codefendant had told him to “keep cool” about the crimes because defendant had recently gotten out of prison, was crazy, and would kill him. (Id. at p. 571.) The witness had been admonished, before he testified, not to refer to several topics, including the defendants’ criminal convictions. The defendant moved for a mistrial based on the reference to his prison term. He argued that the prosecutor had the duty to prevent the witness from testifying about improper matters. The trial court found the reference did not prejudice defendants. The statement about prison was stricken and the jury admonished not to consider it for any purpose. (Id. at pp. 572-573.)
The Avila court concluded: “As for the portion of Rodriguez’s testimony referring to defendant recently having been in prison, the court admonished the jury not to consider it for any purpose. . . . We presume the jury followed the court’s instructions.” (People v. Avila, supra¸ 38 Cal.4th at p. 574.)
In our case, the deputy was not warned in advance to avoid reference to appellant’s criminal history. Defense counsel asked a broad question which opened the door to the testimony. The trial court gave the jury an appropriate admonishment to disregard the statement. It took the additional step of ensuring that the jurors would have no problem in following the court’s instructions. We find no abuse of the trial court’s exercise of discretion.
Appellant argues that the trial court’s ruling was “irrational” because it ignored the context of the statement about the prior robberies. He contends it had significant prejudicial impact here because the current crimes included robberies. In addition, he characterizes the court’s inquiry as to whether the jury would follow the instructions as an abdication of its duty. We disagree with this characterization of the judge’s process. The transcript reflects that the prosecutor suggested that the court inquire whether the jury could follow the instruction to disregard the testimony about the priors. The court said: “I think we should do that tomorrow because I don’t want to cause any more damage than has been done already.” Counsel were given an opportunity to conduct legal research overnight.
The next morning, counsel argued the mistrial motion. Defense counsel argued against presuming that the jury would follow the admonition to disregard the testimony about the priors. The court then asked defense counsel whether it would be sufficient to ask the jurors whether or not they could follow the instruction. She replied that it would not, because jurors would say they would follow the instruction because that is the response they believed the court would want. The court noted that four jurors with time pressures might be motivated to say that they could not follow the instructions in order to end their jury service.
In arguing the motion, the prosecutor again suggested that the court inquire as to whether the jurors would follow the limiting instruction. The court expressed concern that an inquiry to the jury would draw more attention to the testimony, and suggested an inquiry about following the instructions generally rather than focusing on the limiting instruction. After further argument, the trial court recessed to read authority cited by counsel. The court observed that in those cases, mistrial motions were denied under circumstances more egregious than those presented here. The judge expressly recognized that the determination of prejudice was the province of the court. The court then said that the motion was dependent on the responses of the jurors as to whether they could follow the instructions.
The record establishes that the trial court took into account a number of factors in denying the mistrial motion, including case authority, the particular circumstances here, and the jury’s response that it would follow the instructions. We find no abdication of authority, and no abuse of discretion.
Appellant also argues that admission of the testimony about the priors was so prejudicial that he was deprived of his right to a fair trial under the due process clause of the federal constitution. He contends that the testimony was prejudicial because the evidence of murder was minimal and based on conjecture and because the police employed “dubious” photographic identification procedures. We already have addressed the sufficiency of the evidence to support the murder charge, which we find substantial and not based on conjecture.
Even if the admission of the evidence had been error, the error was harmless. The evidence established that appellant had visited the social club frequently in the months preceding the robberies and murder. Simpson recognized him when he first appeared at the door that night. She picked his photograph out of a book of 111 photographs, even though appellant’s hair was in a different style in the photograph. She testified that she was separated from the other witnesses when she made the identification, she did not tell the other women whom she identified, and they did not tell her what they told the police. Witnesses Simpson, Duncan, Brown, and Hoard identified appellant as the robber from a six-pack photo array. Ms. Hoard testified that she did not overhear the police interviews with other witnesses. Detective Steinwand testified that he took measures to be certain that the individual witness interviews were not overheard, and was confident that they were not. He admonished each witness not to talk about their interview.
We find no irregularity or impropriety in the police identification procedures. The evidence of appellant’s involvement in the robberies was overwhelming. As we have discussed, there was substantial evidence that appellant’s accomplice committed the murder. On this record, we conclude that any error in admission of the evidence was harmless beyond a reasonable doubt.
III
Appellant argues the trial court erred by doubling the term of life imprisonment without possibility of parole (LWOP) for the murder count under the Three Strikes Law. Section 667, subdivision (e)(1) and section 1170.12, subdivision (c)(1) contain identical language: “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” There is a split of authority on the application of Three Strikes to an indeterminate term.
The court in People v. Hardy (1999) 73 Cal.App.4th 1429 looked to the purpose of the Three Strikes law as an aid to determine whether an indeterminate LWOP term may be doubled. The Hardy court reasoned: “A doubled sentence of life without possibility of parole is consistent with Penal Code section 669, which provides in pertinent part: ‘Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another . . . .’” (Id. at p. 1433.) It concluded that doubling an LWOP sentence is essentially sentencing a defendant to two consecutive LWOP terms and is thus authorized.
In People v. Smithson (2000) 79 Cal.App.4th 480, the court reached a different result: “Under [section 667,] subdivision (e)(1), only two types of sentence terms are doubled: a determinate term and the minimum term of an indeterminate term. A determinate sentence is one ‘consisting of a specific number of months or years in prison.’ (People v. Jefferson (1999) 21 Cal.4th 86, 92.) An indeterminate sentence means ‘the defendant is sentenced to life imprisonment.’ (Ibid.) Some indeterminate sentences carry minimum terms either expressly or via other statutes which establish a minimum time that must be served under an indeterminate sentence before a convict can be eligible for parole. (Id. at p. 96.) [¶] An LWOP sentence is an indeterminate sentence without a minimum term. . . . Because an LWOP sentence is not a determinate term and does not contain a minimum term, it is not subject to the doubling requirement of subdivision (e)(1).” (People v. Smithson, supra, 79 Cal.App.4th at p. 503.) The Smithson court criticized Hardy on the ground that the statute is unambiguous and therefore, there is no need to resort to legislative intent in its interpretation. (Id. at pp. 503-504.)
We follow the Smithson court’s analysis. The statute is unambiguous and does not apply where, as here, there is no minimum indeterminate term. The trial court erred in doubling the LWOP sentence.
IV
Appellant argues, and respondent concedes, that the trial court erred in imposing a parole revocation fine pursuant to section 1202.45 since he was sentenced to life in prison without possibility of parole. We agree. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185-1186.)
DISPOSITION
The sentence is modified to a single term of life imprisonment without possibility of parole on count 1 (murder) and to vacate the parole revocation fine. The trial judge is directed to modify the abstract of judgment accordingly. In all other respects, the judgment of conviction and sentence are affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.