P. v. Washington

Filed 11/9/06 P. v. Washington CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
REGGIE WASHINGTON,
Defendant and Appellant.
B186443
(Los Angeles County
Super. Ct. No. NA056254)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Gary J. Ferrari, Judge. Affirmed as modified with directions.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
_______________

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Reggie Washington appeals from the judgment entered upon his conviction by
jury of carjacking, second degree robbery, and second degree burglary (Pen. Code, §§
215, subd. (a), 211, 459), in each of which he personally used a knife and in each of
which the victim was 65 years of age or older and appellant had an enumerated prior
conviction (Pen. Code, §§ 12022, subd. (b)(1), 667.9, subd. (b)), and of attempted
second degree robbery, in which he personally used a deadly weapon (Pen. Code,
§§ 664/211, 12022, subd. (b)(1)).1 The trial court found that appellant had sustained
two prior felony convictions within the meaning of the three strikes law (§§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(i)) and section 667, subdivision (a)(1), as well as four
prior felony convictions for which he served separate prison terms within the meaning
of section 667.5, subdivision (b).
Appellant was sentenced to consecutive terms of 27 years to life and 25 years to
life, with enhancements totalling 18 years.
Appellant contends that (1) the trial court erred in denying his Pitchess motion
(Pitchess v. Superior Court (1974) 11 Cal.3d 531); (2) insufficient evidence supports
his convictions; (3) the trial court erred in refusing to admit evidence of a victim’s
prior felony conviction and prior misdemeanor conduct, and in failing to instruct the
jury in accordance with CALJIC No. 2.23; (4) the concurrent term for robbery must be
stayed pursuant to section 654; (5) the matter must be remanded because the trial court
was misinformed as to its sentencing discretion; (6) clerical errors in the abstract of
judgment must be corrected; and (7) the imposition of upper term and consecutive
sentences violated Blakely v. Washington (2004) 542 U.S. 296.
Respondent contends that the trial court failed to either impose or strike the
section 667.9, subdivision (b) enhancement with respect to two of the three counts as
to which the allegation was found true, the second degree robbery and second degree
burglary counts.
1 All further statutory references are to the Penal Code unless otherwise
indicated.

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We requested that the parties address the questions of whether the section
667.9, subdivision (b) enhancement applies to the second degree burglary count, and
whether the two section 667, subdivision (a) enhancements must be imposed on each
count.
FACTS
We view the evidence in accordance with the usual rules on appeal. (People v.
Snow (2003) 30 Cal.4th 43, 66.) On the evening of February 27, 2003, Ricardo Sailor
got into the driver’s seat of his son-in-law’s van, which he had parked in a lot on West
Artesia Boulevard in Long Beach. Appellant, who was inside the van, grabbed him
around the neck, held a sharp object to his neck, threatened to kill him if he did not
have any money, and rifled through his pockets. Sailor grabbed the weapon and
struggled with appellant, cutting his own hand. He was finally able to push the
weapon down and to get out of the van.
Appellant began looking for the keys, which Sailor had dropped, and Sailor
went inside a nearby store to find a weapon. Sailor’s son-in-law arrived and
exchanged words with appellant. Appellant fled. Sailor chased him for a short time,
but his son-in-law left the scene and Sailor gave up the chase. Sailor described his
assailant to police as wearing a black jacket with a red emblem or design on it. He did
not disclose his son-in-law’s presence to police because the son-in-law had
outstanding warrants.
Less than a week later, on the afternoon of March 5, 2003, 83-year-old Deloris
Fagan was driving her red 1991 Cadillac El Dorado toward the garage entrance of her
Long Beach apartment. Appellant was standing in the alley near the garage door,
which was operated by a remote control. Fagan stopped to let him walk by, but he
motioned for her to continue into the garage, and she drove in. After she parked her
car, appellant accosted her, holding a knife. He ordered her to get out of her car.
When she did, he pulled off her gold necklace and told her to go around to the rear of
the vehicle. He got into the car, asked where the remote was located, and drove out of
the garage. Fagan’s purse was still in the car. Fagan, who was “terribly” afraid during

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the incident, called the police. Although it had been dark in the garage, she described
the robber as a fairly tall Black man wearing dark clothing and stated that the robber’s
hair was covered with a cap.
Another resident of Fagan’s apartment complex, Barry Citron, was standing on
his fourth-floor balcony when he saw a man standing near the entrance to the parking
garage as the red Cadillac was driving in. The man was wearing a dark shirt and pants
and could have been wearing a cap. Citron, who was on the board of directors and had
received complaints about homeless people defecating in the doorways near the garage
entrance, was concerned that appellant might have been one of those persons, and he
ran downstairs.
After searching the alley for a minute, Citron saw the red Cadillac coming out
of the garage. He walked in front of it and put his hands on the hood. Appellant, the
driver, stopped the car, and when Citron asked to talk to him, appellant opened the
passenger window. Citron put his head inside the car, looked appellant in the eye, and,
from a distance of three feet, asked appellant if he had seen anyone coming in through
the garage door. Appellant, looking surprised and nervous, shook his head and drove
away. The police arrived shortly thereafter, and Citron brought them to Fagan’s
apartment, where he told her he had seen someone driving her car out of the garage.
Appellant was arrested the following night, March 6, 2003, by Long Beach
Police Officer Don Mauk and his partner, Officer Aldo Decarvalho, after the officers
observed him driving Fagan’s Cadillac into a gas station on Long Beach Boulevard.
At the time, appellant was wearing a black hooded sweatshirt and blue sweatpants.
The jacket did not have any design or emblem.2 Officer Decarvalho recovered a black
Smith and Wesson knife from the driver’s seat of the vehicle. Appellant had the keys
2 There was no mention of a T-shirt in the description of appellant’s clothing on
the booking sheet prepared after his arrest. Decarvalho testified that he did not see
anything under appellant’s sweatshirt.

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to the vehicle and a tube of lipstick in his pockets, and he gave a false name to the
officers.3
Detective John Mercado showed Fagan a photographic lineup which included
appellant’s photograph. She initialed her statement, “It could be either number 2 or
number 6.” Appellant was number 6. At trial, Fagan identified appellant as her
assailant. She was shown the pants, T-shirt and sweatshirt recovered from appellant at
the time of his arrest and testified that they looked like the color of the clothing
appellant had been wearing at the time of the offenses. She identified the keys
recovered from appellant as the keys to her Cadillac, and she testified that the tube of
lipstick found in appellant’s pocket was the color and brand she had used at the time of
the offenses. She testified that she thought that the blade of the knife used by
appellant was more silver than the one recovered from the vehicle, which she
described as black, but she observed that it had been dark in the garage and she had not
seen much of the weapon.
Citron identified appellant’s photograph from a photographic lineup, giving the
statement, “That’s him; the shape of his head is the same and his eyes, he looked right
at me with the same expression.” At trial, he identified appellant with 100 percent
certainty as the person he had seen driving the Cadillac out of the garage.
Sailor, the victim of the attempted robbery, was shown a photographic lineup
by Detective Debra Clark. Sailor identified appellant as his assailant, giving the
statement, “I think it was this guy.” At trial, he identified appellant and stated that he
was “absolutely sure” of his identification.
Additional evidence was introduced regarding a March 2, 2003, incident at a
Long Beach clothing store, as a result of which appellant was charged with the second
degree robberies of Felicita Aquino and Teresa Mancia, the false imprisonments of
3 Fagan’s driver’s license, which had been in the car when appellant drove off,
was found months later in a different car. A search of appellant’s residence did not
disclose any evidence linking him to the robberies.

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Aquino and of Mancia, and second degree burglary. The jury was unable to reach a
verdict on these counts, and they ultimately were dismissed.4
An additional count charging appellant with the attempted kidnapping of
Pamela Guzman was dismissed prior to trial by the prosecutor. This offense allegedly
occurred at the time of appellant’s March 6, 2003, arrest.
Appellant’s mother testified on his behalf that he was living with her in early
March 2003 and that he had the flu and stayed home all day from March 3rd until he
left the house on March 6th, the date of his arrest.
Dr. Ralph Geisalman, a professor and researcher in the UCLA Psychology
Department specializing in eyewitness psychology, testified that cross-ethnic
identifications are 10 to 15 percent less reliable, memories deteriorate over time, the
stress of experiencing a crime and seeing a weapon negatively impacts a witness’s
ability to make an identification, and memories can change when witnesses discuss the
event. He testified that the six-pack photographic lineup that included appellant’s
photograph was fair, but he indicated that studies show that up to 90 percent of
witnesses will select a photograph from a lineup even where the suspect’s photograph
is not included. The correlation between an eyewitness’s confidence in his
identification and the accuracy of his identification is very small. A witness is more
likely to make an in-court identification, because there is only one suspect present, and
in this case, since appellant represented himself at the preliminary hearing, the
witnesses had the opportunity to observe appellant on a prior occasion, thus solidifying
their choices.
Long Beach Police Officer John Helms, the officer who arrived at the
apartment complex and first interviewed Fagan, testified for the defense that he did not
include Citron’s statement in his report, explaining that he believed that the
4 Mancia identified someone other than appellant from the photographic lineup,
and Aquino pointed to appellant’s photograph and said that he looked similar to the
robber. Other witnesses to these charged offenses told Detective Clark that they would
not be able to identify anyone from a photographic lineup.

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information given by Citron was not directly related to the incident because Citron was
not an eyewitness to the carjacking. Mercado, the investigating detective, was not
aware of Citron’s existence until he subsequently interviewed Fagan.
A palm print lifted from the Cadillac did not belong to appellant.
SENTENCING
With respect to the crimes involving Fagan, the trial court imposed a term of 27
years to life in prison for carjacking with a one-year deadly weapon enhancement and
a two-year elderly victim enhancement (count 1), a concurrent term of 25 years to life
for second degree robbery with a one-year deadly weapon enhancement (count 2), and
a stayed term of 25 years to life for second degree burglary (count 3). The trial court
imposed a consecutive term of 25 years to life with a one-year deadly weapon
enhancement for the attempted robbery of Sailor (count 9). Finally, the trial court
imposed two 5-year section 667, subdivision (a) enhancements and four 1-year section
667.5, subdivision (b) enhancements.
DISCUSSION
I. The evidence that appellant was the perpetrator was sufficient to support the
verdicts as to all counts of which he was found guilty.
Appellant contends that there was insufficient evidence of his identity as the
perpetrator of the crimes against Fagan and as the individual who attempted to rob
Sailor, and that his convictions therefore violated his right to due process. This
contention is without merit.
Appellant cites conflicting witness testimony as to the descriptions of the
suspects and complains of a flawed police investigation. However, “[t]he role of an
appellate court in reviewing the sufficiency of the evidence is limited. The court must
‘review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence -- that is, evidence which is
reasonable, credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶] . . . But it is the
jury, not the appellate court, which must be convinced of the defendant’s guilt beyond

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a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its
judgment for that of the jury.” (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
We do not reweigh the evidence; even if the circumstances “might reasonably be
reconciled with a contrary finding[, this] would not warrant reversal of the judgment.”
(People v. Proctor (1992) 4 Cal.4th 499, 529; accord, People v. Ceja, supra, at p.
1139.)
The factors about which appellant’s identification expert testified, together with
the testimony about appellant’s clothing at the time of the offenses and at the time of
his arrest one or more days later, and such anomalies as the absence of Citron’s
statement from the initial police report, were all considered by the jury. “In deciding
the sufficiency of the evidence, a reviewing court resolves neither credibility issues
nor evidentiary conflicts. [Citation.] 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.) On the record presented, ample evidence supports the jury’s
conclusions that appellant was guilty of the offenses against Sailor and Fagan.
II. The trial court’s denial of appellant’s Pitchess motion does not require reversal.
Prior to trial, appellant, who was at that time representing himself, filed a
Pitchess motion requesting discovery of the personnel records of Long Beach Police
Detectives Deborah Clark and John Mercado and Long Beach Police Officers John
Helms, Jonathan Ornelas, Peter Lackovic, Donald Mauk, Teryl Hubert, Aldo
Decarvalho, and Carlos Grimaldo. Appellant requested complaints of officer
misconduct amounting to moral turpitude including allegations of false arrest, planting
evidence, fabrication of police reports, fabrication of probable cause, false testimony,
perjury, use of excessive force, making false arrests, writing false police reports to
cover up the use of excessive force, and false or misleading internal reports.
In his declaration, appellant stated that the credibility, character, habits and
customs of the officers would be at issue in this trial and that evidence that they made

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false arrests, engaged in illegal searches and seizures, fabricated charges and/or
evidence, had a history of dishonesty and the use of improper tactics, used excessive
force, or wrote false police reports would be relevant to establish those habits and
customs and to impeach the officers. The Long Beach City Attorney filed a written
opposition.
Officers Lackovic, Mauk, Decarvalho and Hubert
Appellant declared that he expected the trial evidence to show that Officers
Lackovic, Mauk, Decarvalho and Hubert made false and misleading statements against
him. In support of this claim, he stated that, as he sat in the patrol car at the time of his
March 6, 2003, arrest by Officers Mauk and Decarvalho, he saw Pamela Guzman give
Officer Lackovic a pocket knife whose description matched that of a knife she was
known to carry.5 This was the knife that Decarvalho claimed to have found in the
carjacked vehicle. Appellant stated that Guzman was a known prostitute, crack addict,
and informant for the officers involved in this case.
Appellant further declared that Officer Mauk wrote a false statement on the
probable cause determination sheet and that Officer Hubert coerced witness
Richard Singleton and fabricated a police report about the attempted kidnapping of
Guzman. He also declared that Guzman provided Officer Hubert with a statement
about him that conflicted with the statement she gave to Officer Lackovic.
In support of these claims, appellant appended an incident report without a date
that did not identify the author. The report described appellant’s arrest at a gas station
by the author and Decarvalho. The author stated that when appellant was apprehended
near Fagan’s Cadillac, appellant was standing next to Pamela Guzman, who told
Officer Lackovic that appellant was trying to kidnap her. The report stated that inside
the Cadillac, Officer Decarvalho found a pocket knife matching the description of the
one used in the carjacking.
5 Guzman was the victim of the charged attempted kidnapping, which was
dismissed by the prosecutor subsequent to the ruling on the Pitchess motion.

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Appellant also appended incident reports prepared by Officer Lackovic and
Officer Hubert. Officer Lackovic’s report stated that he responded to the gas station in
response to a call stating that a man matching appellant’s description was trying to
force a woman into a burgundy Cadillac. After Officers Decarvalho and Mauk
detained appellant and Guzman, Guzman told Officer Lackovic that she knew
appellant from the streets and had heard rumors that appellant believed she was a
snitch and had threatened to kill her. Officer Hubert’s incident report stated that while
he was investigating an apparently unrelated attempted carjacking that same night,
Richard Singleton told the officer that the suspect in that crime, whose description
matched that of appellant, gave his name as “Mike.”6 Officer Hubert’s report stated
that Guzman, who was with Singleton, told Officer Hubert that she feared “Mike”
wanted to kill her, explaining that after his recent release from jail, he seemed to “take
a liking” to her and wanted her to be his girlfriend.
Appellant also appended Officer Mauk’s declaration of probable cause, in
which the officer stated that Guzman feared for her safety and complied with
appellant’s attempt to force her into the vehicle.
Officers Ornelas and Grimaldo
Appellant declared that it would be proven at trial that Officer Ornelas’s police
report contradicted the information in the M.D.T. printouts, establishing that his report
was fabricated, and that his report conflicted with the preliminary hearing testimony of
Aquino, a victim of the March 2, 2003, robberies at gunpoint at the clothing store. He
also declared that Officer Grimaldo conducted an identification procedure in a manner
that was deliberately suggestive in his attempt to obtain a positive identification.
In support of these claims, appellant appended Officer Ornelas’s incident report
relating to the March 2, 2003, offenses involving victims Aquino and Mancia. The
report indicated that after Officer Ornelas and his partner, Officer Grimaldo,
6 According to appellant’s mother, appellant’s true name is Michael Duane
Washington.

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interviewed Aquino and Mancia, they spoke with the owner of a nearby liquor store,
who had a videotape from the previous day showing a suspicious-looking person who
had been seen with a gun. The officers brought Aquino and Mancia to view the
videotape, from which both identified the person as the individual who had robbed
them. Two pages from an unidentified transcript indicate that an individual and the
individual’s coworker were shown a videotape at the same time.
Officer Helms
Appellant declared that Officer Helms suppressed a statement that he obtained
on March 5, 2003, from Citron, an eyewitness to the carjacking of Fagan, because
Citron’s description of the suspect conflicted with that given by Fagan. To support
this claim, he appended a page from an unidentified transcript in which the witness
stated that he spoke to the officer who arrived on the scene “that day” and “talked to
him a lot.” Appellant also appended Officer Helms’ incident report, which included
no statement from Citron but indicated that the female victim described the suspect as
wearing a black shirt, black pants and a black visor. A second, unidentified incident
report stated that the author spoke with Citron, who described the man he had seen in
the alley as wearing a blue T-shirt. The report indicated that Citron did not “realize”
that the man who drove the Cadillac out of the garage was the man he had seen in the
alley.
Detective Clark
Appellant declared that Detective Clark deliberately conducted unnecessarily
suggestive eyewitness identification procedures and played a key role in coaching the
testimony and in-court identifications by prosecution witnesses at the preliminary
hearing. He further stated that Detective Clark visited him in jail and became
belligerent when he exercised his rights to remain silent and to have an attorney
present, that she informed him that he would have additional charges filed against him
as retaliation for refusing to provide a statement, and that she refused to leave until
appellant called for the guards.

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Appellant appended Detective Clark’s incident report detailing her interview
with appellant at the Men’s Jail. She reported that as she was about to give appellant
the Miranda advisements (Miranda v. Arizona (1966) 384 U.S. 436), he became
agitated and told her that he would not talk to her and wanted his lawyer. He began to
yell at detention officers standing outside the room and demanded that they return him
to his cell.
At the hearing at which the Pitchess motion was to be considered, an attorney
was appointed to represent appellant. At the end of the hearing, the attorney
representing the Long Beach City Attorney’s Office reminded the trial court, “Mr.
Washington had a Pitchess motion.” The trial court summarily denied the motion,
stating, “I don’t think there is a whole lot of viability in those motions. You may want
to talk to [the attorney representing the Long Beach City Attorney’s Office]. [¶] With
respect to the Pitchess motion, I’m going to deny the motion on the grounds that the
motion is insufficient, which it really is.”
Appellant contends that that the trial court’s ruling constituted an abuse of
discretion, requiring reversal of his conviction. This contention must fail.
Under Evidence Code section 1043, subdivision (b)(3), a defendant seeking
discovery of peace officer personnel records must include “[a]ffidavits showing good
cause for the discovery or disclosure sought, setting forth the materiality thereof to the
subject matter involved in the pending litigation . . . .” To establish good cause and
thereby obtain in camera review of potentially relevant documents, the defendant
“need only demonstrate that the scenario of alleged officer misconduct could or might
have occurred.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).)
“A showing of good cause is measured by ‘relatively relaxed standards’ that serve to
‘insure the production’ for trial court review of ‘all potentially relevant documents.’
[Citation.]” (Ibid.) Material information includes evidence that may be used to
impeach testifying police officers. (See Hall v. Superior Court (2005) 133
Cal.App.4th 908, 911, fn. 1; Becerrada v. Superior Court (2005) 131 Cal.App.4th 409,
413.)

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We review the trial court’s ruling on a Pitchess motion for abuse of discretion.
(People v. Hughes (2002) 27 Cal.4th 287, 330.) The erroneous denial of a Pitchess
motion may be found to be nonprejudicial under People v. Watson (1956) 46 Cal.2d
818, 836, particularly where there is extensive evidence linking the defendant with the
crime. (People v. Samuels (2005) 36 Cal.4th 96, 110.)
Requests for officer information that are irrelevant to the pending charges, such
as the requested information about the officers’ use of excessive force, which has no
relevance to appellant’s case, may readily be rejected. (Warrick, supra, 35 Cal.4th at
p. 1021; see People v. Hill (2005) 131 Cal.App.4th 1089, 1096, fn. 7.) Further, we
observe that, in his declaration, appellant never denied having committed any of the
charged offenses. Even were we to find that the allegations of suggestive
identification procedures and of fabricated police reports sufficed to establish a
defense to the charges and “a specific factual scenario of officer misconduct that is
plausible when read in light of the pertinent documents” (Warrick, supra, at pp. 1024-
1025), we would conclude that appellant’s claim as to each officer must be rejected for
lack of prejudice.
As to Detective Clark, appellant failed to identify which victims were the
subject of suggestive identification procedures and which additional charges were filed
in retaliation. Apart from having failed to present an assertion of specific officer
misconduct that is plausible in light of the documents provided (Warrick, supra, 35
Cal.4th at pp. 1025-1026), appellant failed to establish any prejudice resulting from the
incident at the county jail.
As to Officers Lackovic, Mauk, Decarvalho and Hubert, to the extent appellant
claims that Pamela Guzman gave contradictory statements to Officers Hubert and
Lackovic, there is no allegation that the event was described inaccurately by the
officers, or that the officers falsified the witness’s statements, and therefore good cause
was not established. (People v. Hill, supra, 131 Cal.App.4th at pp. 1099-1100.)
Moreover, to the extent the claimed fabrications involve the attempted kidnapping of
Pamela Guzman, any error was utterly harmless because that charge was dismissed

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prior to trial. To the extent the claimed fabrications bore on the discovery of a knife in
Fagan’s car, near which appellant was apprehended, the evidence of appellant’s guilt
of the offenses involving Fagan was overwhelming. Moreover, the knife that was
reported to have been found in the car did not contribute to the guilty verdict, since
Fagan testified that she did not believe the knife presented in court resembled the one
used by appellant.
As to Officer Helms, any error was harmless because the issue of Helms’
failure to include Citron’s statement regarding the person he saw at the time of the
offenses involving Fagan was explored at length during trial, and the evidence of
appellant’s guilt of the offenses involving Fagan was overwhelming.
As to Officers Ornelas and Grimaldo, the officers investigating the unrelated
offenses committed at the clothing store on March 2, 2003, any error was harmless
because those counts were dismissed after the jury was unable to reach a verdict.
III. The trial court did not abuse its discretion in excluding evidence of Sailor’s
prior felony conviction and past misdemeanor conduct.
Appellant sought to impeach Sailor with evidence that in 1977, when Sailor
was 21 years old, he had given false information to the police, conduct which resulted
in a misdemeanor conviction, and that in 1982 he had suffered a felony conviction of
second degree burglary. Sailor was ordered to serve five days in jail for the
misdemeanor conviction, and he was placed on three years’ probation and was
required to serve 180 days in county jail for the felony conviction. He had had
contacts with the police in 1982 and 1985 for Health and Safety Code violations, but
the 1982 matter was dismissed by the prosecution and no arrest resulted from the 1985
contact.
The trial court ruled that the felony conviction and the misdemeanor conduct
were too remote, in view of the fact that the offenses occurred 22 and 27 years earlier,
when Sailor was a young man, and he had had no significant contacts with law
enforcement since then. Concluding that the prejudicial effect outweighed the

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probative value of the evidence, the trial court excluded the evidence pursuant to
Evidence Code section 352.
Appellant contends that the trial court abused its discretion in excluding this
evidence and in failing to instruct the jury that a prior felony conviction could be used
to determine a witness’s credibility in accordance with CALJIC No. 2.23. He asserts
that the felony conviction and the misdemeanor conduct involved moral turpitude and
were not remote in time, and that the trial court’s abuse of discretion in excluding the
impeachment evidence resulted in a denial of his rights to a fair trial and due process.
This claim lacks merit.
Evidence of a felony conviction involving moral turpitude and of past
misdemeanor conduct involving moral turpitude may be admissible for impeachment,
subject to the discretion of the trial court under Evidence Code section 352.7 (People
v. Wheeler (1992) 4 Cal.4th 284, 295-296; People v. Castro (1985) 38 Cal.3d 301,
306.) A trial court has broad discretion under Evidence Code section 352 in excluding
impeachment evidence (People v. Ayala (2000) 23 Cal.4th 225, 301), and that exercise
of discretion “‘will not be disturbed unless it appears that the resulting injury is
sufficiently grave to manifest a miscarriage of justice.’” (People v. Green (1995) 34
Cal.App.4th 165, 182.)
One of the factors the trial court may consider in making its determination is the
remoteness of the prior conviction and whether the witness subsequently led a
blameless life. (See People v. Green, supra, 34 Cal.App.4th at pp. 182-183.) There
was no abuse of discretion in the trial court’s ruling that Sailor’s prior felony and prior
misdemeanor conduct were too remote, in light of the many years that had elapsed
without any new criminal prosecutions, or in its determination that the proffered
evidence was therefore more prejudicial than probative. Since the trial court properly
7 Evidence Code section 352 provides, “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”

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excluded this evidence, it was not required to instruct the jury in accordance with
CALJIC No. 2.23.8
IV. The sentence for the robbery of Fagan must be stayed pursuant to section 654.
At sentencing, appellant’s counsel argued that, in essence, the jury had found
appellant guilty of having robbed Fagan of her necklace and her car, and he asked the
trial court to apply section 654 “to the two robberies and to the burglary.” The
prosecutor argued that the carjacking, count 1, and the robbery involving the necklace,
count 2, did not necessarily come within section 654, and he asked that the trial court
to impose a consecutive term for the robbery. After imposing the term for carjacking,
the trial court stated, with respect to the robbery count, “[B]ecause of the close
proximity of those two cases and those two events, I’m going to run that concurrent.”
Appellant contends that because the carjacking and robbery of Fagan resulted
from the taking of multiple items during a single robbery, the concurrent sentence for
robbery must be stayed pursuant to section 654. This contention is well taken.
Section 654 provides, in pertinent part, “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.”
The trial court’s statements at sentencing indicate that it was considering
whether to sentence concurrently or consecutively for the robbery and carjacking
under the three strikes law. Its use of the term “proximity,” which was responsive to
the prosecutor’s sentencing memorandum, invokes the test set forth in People v.
Lawrence (2000) 24 Cal.4th 219, 224, and People v. Deloza (1998) 18 Cal.4th 585,
594, to determine whether sentences on multiple counts must be consecutive or may be
concurrent under section 1170.12, subdivisions (a)(6) and (a)(7) of the three strikes
8 In the absence of any error, we find no due process violation. (People v. Panah
(2005) 35 Cal.4th 395, 435.)

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law. The trial court did not expressly address the section 654 issue, which is a separate
question. (People v. Deloza, supra, at p. 594.)
Even under the three strikes law, “[s]ection 654 precludes multiple punishment
for a single act or omission, or an indivisible course of conduct.” (People v. Deloza,
supra, 18 Cal.4th at p. 591.) Under section 654, “[i]f all the offenses are incidental to
one objective, the defendant may be punished for any one of them, but not for more
than one. On the other hand, if the evidence discloses that a defendant entertained
multiple criminal objectives which were independent of and not merely incidental to
each other, the trial court may impose punishment for independent violations
committed in pursuit of each objective even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.” (People v. Liu (1996) 46
Cal.App.4th 1119, 1135.)
Here, the robbery and carjacking of Fagan were incidental to one objective, to
deprive the victim of her property. Section 654 therefore precludes multiple
punishment, including concurrent terms. (People v. Deloza, supra, 18 Cal.4th at p.
592; see People v. Dominguez (1995) 38 Cal.App.4th 410, 419-420.)
V. Remand is required because the trial court failed to exercise its sentencing
discretion in calculating the sentence for carjacking.
In his sentencing memorandum, the prosecutor stated that, under the three
strikes law, the trial court “must” sentence appellant to 27 years to life on the
carjacking count, explaining, “The term of twenty seven years is derived from Section
1170.12(c)(2)(A)(i): ‘three times the term otherwise provided as punishment . . .’ The
high term for a violation of Penal code section 215(a) is nine years. Three times nine
is twenty seven.” At the sentencing hearing, the prosecutor reiterated, “Again it’s 27
and not 25 because the high term for carjacking is nine and pursuant to [section]
1170.12, you choose the higher of 25 years, the sentence for the crime or three times
the sentence for the crime. [¶] So it is 27 years to life.”
The trial court imposed the term of 27 years to life for carjacking as calculated
under section 1170.12, subdivision (c)(2)(A)(i), stating, “As to Count 1 of the

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information, wherein the defendant was convicted of a crime of carjacking, pursuant to
section 1170.12, you are ordered committed to the Department of Corrections for a
period of 27 years to life, that is the high term of nine years times three for a total of
27 to life.”
Appellant contends that remand is required because the trial court was
misinformed that it was required to select the upper term as the term to be tripled
under section 1170.12, subdivision (c)(2)(A)(i). He argues that the trial court could
have selected the middle term of five years or the lower term of three years to be
tripled, either of which would have resulted in a third-strike sentence of 25 years to life
under section 1170.12, subdivision (c)(2)(A)(ii), rather than the term of 27 years to
life. This contention, too, is well taken.
Section 1170.12, subdivision (c)(2)(A) provides, in pertinent part, as follows:
“If a defendant has two or more [qualifying] prior felony convictions . . . , the term for
the current felony conviction shall be an indeterminate term of life imprisonment with
a minimum term of the indeterminate sentence calculated as the greater of: [¶] (i)
three times the term otherwise provided as punishment for each current felony
conviction subsequent to the two or more prior felony convictions, or [¶] (ii) twenty-
five years . . . .” (See also § 667, subd. (e)(2)(A).)
As appellant points out, a trial court is not required to select the upper term to
triple under section 1170.12, subdivision (c)(2)(A)(i) when it calculates the minimum
term of the indeterminate sentence for a third-strike defendant. It may choose either
the lower, middle or upper term. (People v. Keelen (1998) 62 Cal.App.4th 813, 819-
820.) As in Keelen, the record convinces us that the trial court believed it was required
to impose three times the upper term as the minimum term of the life sentence. (Id. at
p. 818.) Since the trial court was unaware of, and thus failed to exercise, its discretion,
the matter must be remanded for resentencing. (Id. at p. 820.)
VI. Appellant’s sentencing did not violate Blakely.
Relying on Blakely v. Washington, supra, 542 U.S. 296 (Blakely), appellant
contends that because the jury did not determine the factors used to support imposition

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of the upper term in count 1 and the consecutive term in count 9, his sentence violated
his federal rights to due process and a jury trial.
As appellant acknowledges, this contention was rejected by the California
Supreme Court in People v. Black (2005) 35 Cal.4th 1238. In Black, the Supreme
Court concluded that “the judicial factfinding that occurs when a judge exercises
discretion to impose an upper term sentence or consecutive terms under California law
does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p.
1244.) We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)9
VII. The finding on the section 667.9, subdivision (b) allegation as to the burglary
count must be stricken.
The jury found appellant guilty of second degree burglary in count 3. The
information alleged, and the jury found true, that Fagan, the victim of the second
degree burglary, was 65 years of age or older within the meaning of section 667.9,
subdivision (b). The parties agree that since second degree burglary is not an offense
enumerated in section 667.9, subdivision (c), an enhancement under section 667.9
cannot be imposed on count 3. The finding that appellant violated that provision in the
commission of count 3, second degree burglary, must be stricken.10
9 Appellant raises the issue to preserve his right to federal review. The United
States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005,
A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California
(Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [126 S.Ct. 1329], on the issue of whether
Blakely applies to California’s determinate sentencing law.
10 Accordingly, respondent withdraws the contention that the trial court erred in
failing to impose or strike the section 667.9, subdivision (b) enhancement as to count
3.

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VIII. The matter must be remanded to permit the trial court to exercise its discretion
with respect to the section 667.9, subdivision (b) enhancement on count 2.
The information also alleged, and the jury found true, that Fagan was 65 years
of age or older within the meaning of section 667.9, subdivision (b) as to the robbery
count, count 2. Respondent contends that the trial court erred in failing to either
impose or strike the section 667.9, subdivision (b) enhancement as to that count. This
claim is well taken.
Section 667.9, subdivision (b) provides, in pertinent part, that the defendant
“shall receive a two-year enhancement for each violation.” The trial court, however,
has the discretion under section 1385 to strike a section 667.9 enhancement. (People
v. Luckett (1996) 48 Cal.App.4th 1214, 1221.) When a trial court has discretion to
strike an enhancement, and fails to either impose or strike it, the matter must be
remanded to permit the trial court to exercise its discretion. (See People v. Bradley
(1998) 64 Cal.App.4th 386, 390, 400; People v. Irvin (1991) 230 Cal.App.3d 180, 191-
192.)11
IX. Two section 667, subdivision (a) enhancements must be imposed for the serious
felony convictions in each of counts 1, 2, and 9.
As indicated, the trial court imposed two 5-year section 667, subdivision (a)
enhancements, one for each prior serious felony conviction found true in this three
strikes case. We asked the parties to address the issue of whether the two
enhancements must be applied to each count. Appellant acknowledges that People v.
Williams (2004) 34 Cal.4th 397, 405 (Williams), held that “under the Three Strikes
law, section 667[, subdivision] (a) enhancements are to be applied individually to each
count of a third strike sentence.” He argues, however, that because his 2003 crimes
predated the Williams decision, application of the Williams rule would violate the
prohibition against ex post facto laws. This claim is without merit.
11 We have held that sentence on count 2 must be stayed pursuant to section 654,
and the enhancement, if not stricken, will be stayed as well.

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The prohibition against ex post facto laws does not apply to judicial decisions;
it applies only to legislative enactments. (People v. Morante (1999) 20 Cal.4th 403,
430-431.) Sections 1170.12 and 667, subdivisions (b) through (i) went into effect in
1994, long before appellant’s offenses. Moreover, apart from the inapplicability of the
ex post facto doctrine here, giving retroactive effect to Williams is not improper. “‘“If
a judicial construction of a criminal statute is ‘unexpected and indefensible by
reference to the law which had been expressed prior to the conduct in issue,’ it must
not be given retroactive effect. [Citation.]”’ [Citation.]” (Morante, supra, at p. 431.)
Such is not the case here. Although the Williams court mentioned that Courts of
Appeal in earlier cases had referred to sentences in which section 667, subdivision (a)
enhancements were not imposed on each count of a third-strike sentence, it pointed out
that no case had addressed the issue, “and cases are not authority for propositions not
considered. [Citation.]” (Williams, supra, 34 Cal.4th at p. 405.)
The Williams court held that the section 667, subdivision (a) prior serious
felony enhancements must be “[added] to the sentence for each new serious felony
conviction.” (Williams, supra, 34 Cal.4th at p. 404.) In accordance with Williams, the
judgment must be modified to provide for two 5-year section 667, subdivision (a)
enhancements on the carjacking, robbery and attempted robbery counts.12
X. The abstract of judgment must be corrected.
The parties agree that the abstract of judgment must be corrected to reflect that
the enhancement in count 1 is pursuant to section 12022, subdivision (b)(1), rather
than section 12022, subdivision “(B)(A),” that the two 5-year enhancements were
imposed pursuant to section 667, subdivision (a)(1), rather than section “667.5(A)(1),”
and that a one-year enhancement was imposed pursuant to section 12022, subdivision
12 Second degree burglary, count 3, is not a serious felony. (See § 1192.7, subd.
(c)(18) [burglary of the first degree is enumerated as a serious felony].) We have held
that the sentence on count 2, robbery, must be stayed pursuant to section 654. The
section 667, subdivision (a) enhancements on that count will be stayed as well.

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(b)(1) on the concurrent term in count 2, second degree robbery.13 We will direct the
trial court to so correct the abstract of judgment.
DISPOSITION
The judgment is modified to stay pursuant to section 654 the concurrent
sentence for the second degree robbery of Fagan in count 2, including applicable
enhancements, and to provide for two section 667, subdivision (a) enhancements on
each of counts 1, 2, and 9. The matter is remanded with directions to the trial court to
impose or strike the section 667.9, subdivision (b) enhancement as to count 2, to
exercise its discretion with respect to the sentence for carjacking in count 1, and to
prepare a corrected abstract of judgment, reflecting these modifications as well as
those set forth in Part X of this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________, P. J.
BOREN
We concur:
_________________, J.
DOI TODD
_________________, J.
CHAVEZ
13 Although the parties erroneously refer to this enhancement as a section 12021,
subdivision (b)(1) enhancement, it is clear that they are referring to the knife use
enhancement alleged in the information and found true by the jury under section
12022, subdivision (b)(1).

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