Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LA050805 Richard Kirschner, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Johnte Watson.
Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant Latomeisha O’Brien.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
This appeal arises out of a home invasion robbery, in which defendants Johnte DeJuan Watson and Latomeisha O’Brien were found guilty of robbing David Erlich, Aaron Williams, and Anasheh Aslanian in violation of Penal Code section 211. The jury specially found defendants acted in concert to enter the dwelling structure (§ 213, subd. (a)(1)(A)), a principal was armed with a handgun in the commission of the robberies (§ 12022, subd. (a)(1)), and defendant Watson used a handgun in committing the offenses (§ 12022.53, subd. (b)). Defendant Watson received a 13-year prison term consisting of the lower term of three years for the Erlich robbery plus ten years for the personal firearm use enhancement, along with concurrent terms for the other two robberies. The principal armed enhancement was stricken. The court denied probation as to defendant O’Brien and imposed a nine-year prison term consisting of a six-year middle term for the Erlich robbery, two years consecutive for the Williams robbery (one-third the middle term), plus one year for the firearm enhancement, along with a concurrent two-year term for the remaining robbery.
Throughout the trial transcripts and the trial court orders, defendant O’Brien is referred to as “Obrien.” Review of this defendant’s own pleadings, as confirmed by his appellate papers, make it clear that the proper spelling of his surname is “O’Brien.”
All statutory references are to the Penal Code.
On appeal, defendant Watson contends the trial court violated his federal constitutional rights to due process and a fair trial by giving a modified version of the pattern instruction (CALJIC No. 2.15) that permitted the jury to infer a defendant committed robbery based on conscious possession of recently stolen property if there is other evidence corroborating the robbery. Defendant O’Brien contends there was insufficient evidence to support his robbery convictions and the trial court improperly denied him probation based on the mistaken understanding that defendant O’Brien was subject to a legal presumption against probation.
Defendant Watson seeks to join in defendant O’Brien’s contentions to the extent they pertain to him as well. As neither contention by defendant O’Brien would support appellate relief for defendant Watson, we address the parties’ contentions separately.
We affirm.
Defendants were tried with codefendant Ramiro Lozano; however, the case against codefendant Lozano was dismissed following the prosecution’s presentation of evidence. Before trial began, the court had granted a severance motion on behalf of David Johnson, who was originally charged in connection with the home invasion robbery.
On November 29, 2005, at approximately 10:00 p.m., Anasheh Aslanian had driven her boyfriend Aaron Williams to a restaurant where they picked up dinner to eat at the apartment Williams shared with David Erlich in Sherman Oaks. Aslanian parked on the street in or near the cul-de-sac where the apartment building was located. As they walked toward the apartment building, Williams pointed out a car that he thought “did not belong there.” The area was illuminated by a street light. A male with a dark complexion and wearing a striped shirt (whom Williams would identify as codefendant Lozano) was leaning against the side of the car; there were two or three other males with him. Aslanian and Williams entered the apartment, leaving the front door ajar and the screen door closed but unlocked. Within 10 minutes of sitting down on the living room couch to eat in front of the television, Aslanian heard the screen door open. A dark-skinned man—later identified as defendant Watson—wearing a black or dark-colored mask entered, brandishing a gun and telling her and Williams to get down on the floor. When she hesitated, the gunman repeated his order. Aslanian finally complied. A short time later, another person entered the apartment; he too wore a mask. A third person—later identified as David Johnson by Aslanian and Erlich—followed him, but he was not masked. In response to Johnson’s request, a black-masked robber approached Aslanian, pointed his gun at her, and said, “Bitch, stop looking at him.” She turned her head away. During the incident, Aslanian was “beyond afraid” for her safety and for that of Williams and Erlich. Williams was “scared for [his] life.”
As we discuss infra, Aslanian would identify the second masked robber as defendant O’Brien.
During this time, Erlich entered the room and was ordered to join Aslanian and Williams on the floor. All three heard the robbers ransacking the apartment and going through their personal property, while the gunman stayed in the living room with his weapon pointed at the victims. The robbers left the apartment in less than ten minutes. Aslanian immediately called the police and inspected the apartment. Her purse, containing her cell phone, identification, charge cards, makeup, and car keys, was missing. It had been on the floor next to her while they were eating. Police officers arrived within ten minutes.
Erlich testified that he was in his bedroom when he heard the robbers enter the apartment. From the hallway, he looked into the living room and saw two men wearing ski masks, one in possession of a semiautomatic handgun. They yelled at him to get onto the floor. One robber wore a black mask; the other’s mask was a lighter color. A third robber—Johnson—entered afterwards. While Erlich was lying face down, he heard a robber say, “Get their I.D.’s,” and one of them took his wallet from his back pants pocket. The wallet contained a $100 bill, along with cash in other denominations. Within ten minutes, the robbers left.
At approximately 10:25 that night, Los Angeles Police Department Officer Albert Shinfeld received a radio call directing him to the robbery scene. He arrived some 15 minutes later with his partner, Officer Habib Munoz. Officer Shinfeld interviewed Aslanian, while his partner interviewed the other two victims. Aslanian described two masked African-American male robbers, one with a white ski mask and the other with a black ski mask. Both wore dark clothing and had approximately the same builds.
At approximately 10:50 p.m., Inglewood Police Department Officers Salman Nazir and Oswald Figueroa were in their patrol car. They stopped at a light at the intersection of Imperial Highway and Crenshaw Boulevard in Inglewood, behind a green Honda Civic. Officer Nazir saw the Honda’s left rear passenger door open and a passenger, defendant O’Brien, throw papers out of the car—as it turned out, they were Williams’s stolen business cards. When the light turned green, the officers ordered the Honda to pull over. Officer Nazir approached the driver, Johnson, and asked him and the passengers to exit the vehicle. There were three male passengers—codefendant Lozano was the right front passenger; defendant Watson was the right rear passenger; defendant O’Brien was the left rear passenger.
A search of the Honda revealed Erlich’s wallet under the driver’s seat. Officer Nazir had his partner contact law enforcement agencies to find out if Erlich was a crime victim. Within 10 minutes, they were informed of the home-invasion robbery in Sherman Oaks. Some 45 to 60 minutes later, Los Angeles Police Department officers arrived with the robbery victims and conducted a field showup in which each victim was separately admonished and taken to view the four suspects. According to Officer Shinfeld, it was an approximately 30-minute drive from the robbery scene in Sherman Oaks to the arrest location in Inglewood. Officer Munoz testified that it look him “maybe 25 minutes” to drive from the robbery scene to the arrest location that night.
At the field showup, Aslanian identified defendants Watson and O’Brien, along with Johnson, as the robbers who had entered the apartment; Johnson was the one without a mask. (She also identified codefendant Lozano, but explained that he was not one of the three persons who had entered the apartment.) At trial, Aslanian recalled that the black-masked robber had worn an unzipped black hooded sweatshirt over a white T-shirt and dark pants. She recognized Johnson because she saw his face during the robbery. She recognized defendant Watson as the gunman in part because he was wearing the same clothes as the dark-masked robber. When defendant Watson initially entered the apartment, he came within two feet of Aslanian. The living room was well lit. She got a good view of his clothing and could see his eyes and skin color through the mask. At the time of trial, she could not remember what kind of clothes the second masked robber was wearing during the robbery. However, at the time of the showup, she recalled that defendant O’Brien wore the same clothes and had a similar complexion as the second masked robber. During the robbery, she also had seen through the mask that he had a “significantly lighter” complexion than defendant Watson. The mask had “cutouts” for the robber’s mouth and eyes.
Aslanian explained that she did not identify defendant O’Brien from the photograph shown to her by the defense because the photographic image was unclear.
Williams identified codefendant Lozano by his striped shirt as the person who was leaning on the unfamiliar car just before the robbery; Williams did not see codefendant Lozano’s face at that time. Erlich testified that he identified Johnson at the showup, based on his clothing. Detective Michael Slider of the Los Angeles Police Department, who conducted the showup, testified that Williams and Erlich made identifications based solely on the suspects’ clothing. Williams identified two or three of the suspects, while Erlich identified three or four of them. In neither case, however, could the officer remember which suspects were identified. Officer Munoz testified that during the showup, Detective Slider informed him Erlich identified Johnson and defendants Watson and O’Brien.
A further search of the Honda resulted in the discovery of a black .380 caliber handgun that was “stuffed behind” the glove box. The serial number had been filed off. Johnson was arrested wearing a black jacket with red lettering, consistent with Erlich’s testimony concerning one of the robbers. Another black jacket or sweatshirt, not one of the victims’, was found in the getaway car. Aslanian identified the mask retrieved from the getaway car as being the dark-colored mask worn by defendant Watson. She also identified the Honda as the car that had been parked in front of the apartment building. Her makeup and cell phone were recovered from the getaway car. She saw her purse in the car’s backseat, behind the front passenger seat. She also identified the black handgun as the one used in the robbery.
Erlich recognized the black ski mask found inside the car as being consistent with the one used in the robbery. He also identified his cell phone, “X-Box,” and three watches as being personal property taken from his bedroom and recovered from the getaway car’s trunk and center console. Erlich identified the business cards he had kept in his wallet and two baseball cards he had collected over a decade before the robbery.
Williams identified the black mask and the handgun found in the getaway car as consistent with those used in the robbery. Among other items, Williams identified watches, a pair of shoes, and a backpack taken during the robbery and recovered from the Honda. However, he was impeached by his admission that he had been convicted of two felonies—grand theft and receiving stolen property.
A search of defendant O’Brien’s person revealed a $100 bill and various watches. Erlich’s X-Box remote control was found in Johnson’s sweatshirt pocket.
DISCUSSION
Jury Instruction as to Defendant Watson
Defendant Watson contends the trial court violated his federal constitutional rights to due process and a fair trial by giving the following modified version of CALJIC No. 2.15 at the request of all parties: “If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant Johnte Watson and Latomeisha O’Brian [sic] are guilty of the crime of robbery in violation of Penal Code 211. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider the attributes of possession-time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, any other evidence which tends to connect the defendant with the crime charged.”
The modifications consisted of adding the names of defendants Watson and O’Brien to the first sentence of the first paragraph and deleting inapplicable corroborating factors from the pattern instruction’s second paragraph.
Defendant Watson argues three related instances of instructional error arising out of the giving of CALJIC No. 2.15: (1) in both its unmodified form and as given in this case, the instruction effectively eliminates the requirement of proof beyond a reasonable doubt as to the underlying theft-related offense; (2) by modifying the instruction to name both defendants, the trial court created a prejudicial ambiguity that permitted the jury to infer guilt as to one defendant based on the conscious possession of recently stolen property by the other; and (3) it was prejudicial error to give the instruction because defendant Watson disputed his possession of the stolen property. None of these arguments is persuasive.
According to defendant Watson, by instructing the jury that the corroborating evidence of guilt “need only be slight, and need not by itself be sufficient to warrant an inference of guilt,” the trial court gave the jurors leave to ignore the constitutionally mandated beyond-a-reasonable-doubt standard for a criminal conviction. In a related manner, he argues the instruction contradicts the mandate that the facts constituting circumstantial evidence of guilt be proved beyond a reasonable doubt.
Defendant Watson’s contention is premised on a misreading of the instruction. The instruction does not give the jury license to bypass the guilt-beyond-a-reasonable-doubt standard simply by finding slight evidence of corroborative facts; it imposes an additional evidentiary layer of protection in favor of defendants so that guilt cannot be based solely on possession of stolen property. “It is a permissive, cautionary instruction which inures to a criminal defendant’s benefit by warning the jury not to infer guilt merely from a defendant’s conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendant’s guilt. (See People v. Johnson (1993) 6 Cal.4th 1, 35-37 (Johnson); People v. Gamble (1994) 22 Cal.App.4th 446, 452-455 (Gamble).) Such an inference of guilt has been held not to relieve the prosecution of its burden of establishing guilt beyond a reasonable doubt. [Citations.]” (People v. Barker (2001) 91 Cal.App.4th 1166, 1174; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1035-1036.)
Johnson was disapproved on a different ground in People v. Rogers (2006) 39 Cal.4th 826, 879.
As our Supreme Court explained, CALJIC No. 2.15 neither permits an inference of guilt based only on slight evidence of foundational facts, nor does it lower the standard of evidence to something less than beyond a reasonable doubt. Where, as in this case, the jury was (1) instructed that the instructions were to be “considered as a whole and each in the light of all of the others”; (2) instructed on all of the required elements of the relevant theft-related offense; and (3) “expressly told that in order to prove those crimes, each of the elements must be proved,” there was “no possibility that giving the jury the additional admonition that it could not rely solely on evidence that defendant possessed recently stolen property would be understood by the jury as suggesting that it need not find all of the statutory elements of . . . robbery had been proven beyond a reasonable doubt. Indeed, where identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, CALJIC No. 2.15 protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense.” (People v. Holt (1997) 15 Cal.4th 619, 677.)
As our Supreme Court explains with regard to CALJIC No. 2.15, “‘[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.’” (People v. Yeoman (2003) 31 Cal.4th 93, 131, citing Francis v. Franklin (1985) 471 U.S. 307, 314-315; Ulster County v. Allen (1979) 442 U.S. 140, 157-163.) Indeed, the United States Supreme Court in Barnes v. United States (1973) 412 U.S. 837, 839, 843-846 held that an instruction permitting an inference of guilt for a theft-related offense based on a finding the defendant possessed recently stolen property, “if not satisfactorily explained,” was a “traditional common-law inference deeply rooted in our law” that comported with modern due process. It follows that CALJIC No. 2.15, which also imposes the protective requirement of “slight” corroborative evidence in support of the permissive inference, neither reduces the People’s burden of proving every element of the offense beyond a reasonable doubt, nor violates the defendant’s right to due process. (See Ulster County v. Allen, supra, 442 U.S. at p. 167; People v. McFarland (1962) 58 Cal.2d 748, 754-756; Gamble, supra, 22 Cal.App.4th at pp. 454-455.)
Defendant Watson’s reliance on the reasoning in United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500-501 is misplaced because Gray concerned a conspiracy instruction tied to the substantive elements of a conspiracy charge—that is, the Gray jurors were told the defendant could be convicted upon “slight evidence” of his participation in the conspiracy. (Id. at p. 500.) Here, in contrast, the jurors were instructed that guilt of the substantive offenses must be proved beyond a reasonable doubt and that an inference of guilt could be drawn from conscious possession of recently stolen property only if there was also at least “slight evidence” to corroborate defendant’s guilt for each of the charged robberies.
Defendant Watson’s argument based on the modifications to the pattern instruction fares no better. Initially, defendant Watson forfeited the argument by failing to raise it below. Not only did defendant fail to object to the modification he now seeks to challenge, but he joined in requesting the modified instruction. “[T]he failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1236 [“‘“party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language”’”].) To the extent the modification created the potential for confusion defendant Watson identifies on appeal, the ambiguity would have been apparent below and could have been easily remedied at that time. Defendant Watson offers no justification for his failure to do so.
Nor was there a violation of defendant Watson’s substantial rights. “In determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.] An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]” (People v. Campos, supra, 156 Cal.App.4th at p. 1237.) We find no reasonable likelihood the jury would have understood the instruction as permitting an inference of guilt as to defendant Watson based on the conscious possession of recently stolen property by defendant O’Brien. The trial court instructed the jury to consider the instructions as a whole and each in light of all the others. It also correctly instructed the jury on all elements of robbery and instructed that the prosecution had the burden of proving beyond a reasonable doubt that each defendant was the person who committed the separate crimes with which he was charged.
There was no argument the jury could or should apply a finding of guilt for possession of stolen property by one defendant to the other. To the contrary, the parties focused on the items stolen that could (or could not) be linked to each defendant, whether by actual or constructive possession. For instance, as to defendant Watson, the evidence showed that Aslanian’s purse was found in the getaway car’s backseat, behind the front passenger seat, where defendant Watson was sitting at the time of his arrest. On the other hand, the prosecution’s theory of the case was that defendant O’Brien was seated in the rear seat behind the driver and was the person who threw Williams’s stolen business cards out of the car. Also, Aslanian identified the mask retrieved from the getaway car as being the dark-colored mask worn by defendant Watson. As such, we conclude that no miscarriage of justice resulted from the supposed instructional error. Indeed, because there was no reasonable probability the jury would have read and applied the instruction in the way defendant Watson argues, we would find the supposed error nonprejudicial even if we applied the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24.
Finally, we address defendant Watson’s argument that because he disputed his possession of the stolen property, it was prejudicial error to give CALJIC No. 2.15. Defendant Watson grounds his contention on the language in People v. Morris (1988) 46 Cal.3d 1, 40, overruled on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, “that where the evidence relating to ‘possession’ is conflicting or unclear, an unqualified instruction pursuant to CALJIC No. 2.15 should not be given, for it could easily mislead the jury into assuming that the defendant’s possession has been established when, in actuality, the issue is in doubt.” Defendant Watson’s reliance on Morris is entirely misplaced because the trial court here did not give the unqualified instruction at issue in Morris. Rather, it properly instructed the jury to determine whether each defendant possessed the stolen property (“If you find that a defendant was in conscious possession of recently stolen property . . . .”). (Emphasis added.)
Nor is defendant Watson correct that the trial court’s modification of CALJIC No. 2.15 misled the jury into thinking that only he and defendant O’Brien (and not codefendant Lozano or Johnson) could have committed the robberies. As the trial court clearly instructed, it was only defendant Watson’s and defendant O’Brien’s guilt at issue. The jury was instructed that another uncharged person “was or may have been involved in the crime” for which the two defendants were on trial, but the jury was not to speculate as to the reasons why he was not being prosecuted. In addition, the jury was instructed not to consider for any purpose the fact that codefendant Lozano was no longer on trial. Nor were the jurors to conclude the trial court expressed any opinion as to “whether any defendant is guilty or not guilty of any crimes charged.” There is no reasonable likelihood the jury would have understood otherwise.
Sufficiency of Evidence as to Defendant O’Brien
Defendant O’Brien contends there was constitutionally insufficient evidence to support his robbery convictions because he was not directly or reliably identified as one of the two masked men who took part in the home invasion robbery, and the circumstantial evidence of his participation did not rise above the level of speculation. Finding the circumstantial evidence of defendant O’Brien’s active participation in the underlying offenses was compelling, we affirm his convictions.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
It is well established that “‘“when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery.”’ (People v. Mulqueen (1970) 9 Cal.App.3d 532, 542.)” (People v. Hughes (2002) 27 Cal.4th 287, 357.) As we have held (and the jury was instructed), “the attributes of the possession--time, place, and manner--may furnish the additional quantum of evidence needed. [Citation.]” (People v. Hallman (1973) 35 Cal.App.3d 638, 641.) Here, there was strong evidence as to each of those attributes. Defendant O’Brien was arrested in the same car that had been suspiciously parked in front of the victims’ apartment just before the robberies occurred. That car was filled with property stolen from the victims. The driver, Johnson, was positively identified by Aslanian, who saw his unmasked face during the robbery. The police stopped the car because they observed defendant O’Brien disposing property stolen from one of the victims—and the arrest occurred within 30 minutes of the home invasion, which was the amount of time it would have taken to drive directly to that location from the robbery site. Not only did defendant O’Brien have Williams’s business cards in his actual possession, but he also had a $100 bill on his person, which was likely taken from Erlich. A handgun and ski mask consistent with those used in the robbery were found in the car. In light of such strong circumstantial evidence of defendant O’Brien’s identity as one of the masked robbers, it matters little that no victim could provide an unequivocal in court identification. Nevertheless, additional, significant corroboration was provided by Aslanian’s identification of defendant O’Brien within an hour of the robbery at the field showup as one of the masked robbers because his clothes and complexion were the same as the second masked robber’s.
Defendant O’Brien argues that evidence that the robbery occurred within a few minutes’ drive of his home address supports the inference that he could have been picked up after the robbery. Whatever merit there may be to that factual issue was for the jury to decide. That type of factual contention has no place in appellate review of the sufficiency of the evidence.
While it is true that Aslanian was impeached as to her testimony regarding her description of defendant O’Brien’s clothing and physical build, that merely goes to her credibility, which was entirely a matter for the jury to resolve. (E.g., People v. Young, supra, 34 Cal.4th at p. 1181.) There was certainly nothing physically impossible or inherently improbable about her testimony. For instance, the fact that defendant O’Brien wore a white shirt at the time of his arrest (when Aslanian told the officers he wore dark clothing) can be explained by the discovery of a black jacket or sweatshirt found in the getaway car at the time of arrest—an article of clothing that did not belong to the victims. Similarly, the jury was entitled to resolve the conflicting testimony of the officers regarding whether it was defendant O’Brien who was sitting in the back seat and throwing Williams’s business cards out of the car.
Defendant O’Brien relies on People v. Redmond (1969) 71 Cal.2d 745, in which our Supreme Court reversed a burglary conviction holding there was no substantial evidence of the defendant’s guilt. (Id. at pp. 757, 760.) Redmond is easily distinguished. There, the victim testified the robber was masked at all times, but his build and clothing matched that of a television salesman who had visited the home the day before the burglary, and she identified the salesman from a lineup at a police station, basing her identification on the similarity of voice and an “expression across the eyes that . . . resembled” that of the salesman. (Id. at p. 750.) The defendant and his parents testified that he did not own a coat like that described by the victim. (Id. at p. 752.) The Redmond court reversed, finding the victim’s identification was unreliable. As we have explained, however, Aslanian’s field identification of defendant O’Brien—even if deemed analogous to that in Redmond—was not the primary evidentiary support for his convictions. Rather, the critical evidence against defendant O’Brien was the strong and credible circumstantial evidence of his participation in the robberies that included his possession of stolen property in the company of Johnson, codefendant Lozano, and defendant Watson within 30 minutes of the home invasion. There was no comparable circumstantial evidence of guilt presented in Redmond.
Denial of Probation as to Defendant O’Brien
Defendant O’Brien seeks a remand for a new sentencing hearing, contending the trial court improperly denied him probation based on its mistaken understanding that defendant O’Brien was subject to a legal presumption against probation. As we explain, the record is ambiguous concerning whether the trial court erroneously believed there was an applicable statutory presumption against imposing probation. However, in light of the court’s unambiguous determination that a prison term was the only appropriate sentence in recognition of the violent nature of the offenses involving multiple victims and planning, and its decision to impose the middle prison term on the base offense, along with a consecutive prison term, we have no reason to believe such a misunderstanding affected the court’s probation decision.
At the sentencing hearing, the trial court stated it had read the probation officer’s report along with defendant O’Brien’s statement in mitigation and the letters submitted on his behalf, which it found very impressive. Given the absence of any criminal history, the court found defendant to be “a baffling young man.” Nevertheless, in light of the serious nature of the underlying offenses—“This is the kind of situation where people are killed”—the court indicated its intention to impose a nine-year prison term. Defense counsel argued that such a term would be “extremely harsh” because defendant had no criminal record and did not possess the handgun. Counsel, however, did not request probation for his client, but argued for concurrent sentences. The court responded that it was “not happy” with the sentence, but it was the only sentence it believed “was appropriate . . . under these circumstances.”
After defendant O’Brien’s mother pleaded for mercy, the trial court expressed sympathy, but pointed out “this situation could have easily resulted in a murder; in which case, he would be looking at life imprisonment.” The court added that it was aware of the apparently aberrant nature of the crimes, but explained: “This is a case where he is not eligible for probation, and this is the only sentence that the court believes is appropriate in this situation.” When defense counsel pointed out that defendant O’Brien was eligible for probation because there was no finding that he personally used a firearm, the court replied: “He has not overcome the presumption against it.” The court denied probation and imposed a nine-year prison term consisting of the six-year middle term for the first robbery count as the principle term, two years consecutive for the second robbery count (one-third the middle term), plus one year for the enhancement based on the finding that a principal was armed with a handgun, along with a concurrent two-year term for the remaining robbery count. The court did, however, recommend that defendant O’Brien be committed to fire camp and be housed locally.
Under section 1203, subdivision (e)(2), probation shall not be granted to “[a]ny person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted,” “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation.” As defendant O’Brien points out, this statutory presumption against the granting of probation applies only where the defendant has personally used a deadly weapon; the statute “contains no legislative direction that a defendant is presumptively disqualified from probation because he or she aided an accomplice’s use of a weapon.” (People v. Alvarez (2002) 95 Cal.App.4th 403, 408-409 (Alvarez).) Accordingly, as there was no evidence of personal gun use by defendant O’Brien, the statutory presumption under section 1203, subdivision (e)(2) did not apply to him.
From our review of the record, we are unable to determine whether the trial court labored under the mistaken impression that section 1203, subdivision (e)(2) rendered defendant O’Brien statutorily ineligible for probation. On the one hand, the court twice spoke of ineligibility for, and a presumption against, probation—but in neither case did it reference any legal basis for such a presumption. Moreover, to the extent the court might have believed section 1203, subdivision (e)(2) applied, defense counsel corrected that misunderstanding. Also, the probation report, which the court had read, made it clear that defendant O’Brien was eligible for probation. Further, the statements by the trial court as to its reasons for denying probation and imposing a prison term are consistent with the interpretation urged by the Attorney General—that the court was referring to a “presumption” in the non-technical sense that the mitigating factor of defendant O’Brien’s lack of criminal history failed to overcome the serious factors in aggravation. That understanding is corroborated by the court’s balancing of mitigating and aggravating factors, and deciding not to impose the low term on the principal term. With the record in an ambiguous state, however, we are unable to accept the Attorney General’s position.
The probation officer, however, recommended denial of probation and imposition of the upper term.
Nevertheless, remand for a new sentencing hearing is not mandated “whenever a sentencing court bases its determination on a factual premise which later turns out to be erroneous.” (People v. Ruiz (1975) 14 Cal.3d 163, 168.) Rather, resentencing is necessary only when the sentencing court bases its determination to deny probation “in significant part” upon an erroneous impression of the defendant’s legal status. (Ibid.) In such circumstances, “fundamental fairness requires that the defendant be afforded a new hearing and ‘an informed, intelligent and just decision’ on the basis of the facts.” (Ibid.) That is, we must remand only when the record demonstrates a reasonable probability that the sentencing court’s legal misunderstanding was a significant factor in the denial of probation.
In this case, there is nothing in the record to indicate the trial court’s possible legal error was a significant factor in its ultimate decision. At no point did the court express or imply any velleity in favor of imposing probation. To the contrary, it consistently explained why a prison term was the only appropriate sentence in light of the gravity and danger to life inherent in the underlying offenses. Additionally, the court’s decision to impose the middle term along with a consecutive term, is plainly inconsistent with an unexpressed—or legally thwarted—intent to exercise lenity.
Defendant O’Brien’s authorities are unavailing. In Alvarez, the defendant did not use a deadly weapon in committing the underlying offense; an accomplice did. However, the probation report stated that the defendant was presumptively ineligible for probation, and the sentencing court found the defendant to be “statutorily ineligible for a grant of probation” absent unusual circumstances. Finding none existed, the court imposed a prison term. (Alvarez, supra, 95 Cal.App.4th at p. 405.) The reviewing court reversed and remanded for resentencing because “the court sentenced him under the mistaken impression he was presumptively ineligible for probation under section 1203.” (Id. at p. 409.) In Alvarez, unlike this case, it was clear that the sentencing court believed the statutory presumption applied, and there was no way to rule out the reasonable possibility that its weighing of the aggravating and mitigating factors would have come out differently under the proper standard.
Similarly in People v. Lewis (2004) 120 Cal.App.4th 837, 854 (Lewis), it was apparently “assumed by both parties, the probation officer and the trial court appellant was presumptively ineligible for probation.” The only applicable basis for such an assumption was the provision under section 1203, subdivision (e)(3) making defendants presumptively ineligible for probation if they willfully inflicted great bodily injury or torture. However, no finding as to willfulness had been made at the time of sentencing. The Lewis court “remand[ed] the matter to the trial court for a new probation and sentencing hearing at which the court should determine whether appellant is presumptively ineligible for probation.” (Ibid., fn. omitted.) Here, of course, there is no need for additional factfinding.
Moreover, Lewis is entirely distinguishable because in that case the record demonstrated a strong likelihood that the sentencing court’s legal mistake affected its decision to deny probation: “It is clear the trial court also believed appellant was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3). In evaluating the case, the trial court noted appellant had not been convicted of murder and there was no finding appellant intended to kill Jace. It concluded appellant was not a bad man and he had strong support from his friends and family. The court believed appellant would do well on probation and would not be a danger to the community.” (Lewis, supra, at p. 851.) Although the sentencing court’s evaluation favored granting probation, it found the supposed presumption was not overcome—“the circumstances were not such it could find the case an unusual one for the purposes of section 1203, subdivision (e)(3).” (Ibid.)
In sum, because the record shows any misunderstanding as to defendant O’Brien’s presumptive legal eligibility to probation would have been insignificant to the court’s decision to deny probation, resentencing is not mandated under People v. Ruiz, supra, 14 Cal.3d at page 168.
DISPOSITION
The judgment is affirmed as to defendant Watson and defendant O’Brien.
We concur: ARMSTRONG, Acting P. J., MOSK, J.