P. v. Herod

Filed 9/28/04 P. v. Herod CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY TERRIL HEROD,
Defendant and Appellant.
B167962
(Super. Ct. No. YA051893)
APPEAL from a judgment of the Superior Court of Los Angeles County, James
M. Ideman, Judge. Reversed in part, affirmed in part.
Michele A. Douglas, 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, Senior Assistant Attorney General, Margaret E. Maxwell
and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

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Anthony Herod challenges his carjacking conviction, claiming the court abused its
discretion in allowing a police detective to testify that he included appellant’s picture in a
photographic lineup based on an anonymous telephone call to the police station. He also
claims that, in light of the Supreme Court’s recent decision in Blakely v. Washington
(2004) 124 S. Ct. 2531, imposition of the upper term was unlawful because the
aggravating factors were not found by a jury. We affirm his conviction, but remand the
cause to the trial court for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
Around 1:00 a.m. on March 3, 2002, Mark Edwards drove into a gas station at the
corner of Century and Crenshaw in Los Angeles for gas. He opened the door of his car,
reached into the ashtray for money, and noticed a white Jeep Cherokee pull up on the other
side of the pump. A woman was driving.
A man, later identified as appellant, got out of the Jeep, walked over to the cashier,
then over to the open driver’s side door of Edwards’s car. Appellant asked Edwards, who
was still seated in his car, where he was from. Edwards replied, “I’m not with that.”
Appellant then asked, “Well, where do you stay?” He reached under his shirt, withdrew a
gun from his waistband, pointed it at Edwards, and demanded Edwards’s car keys.
Edwards gave appellant the keys and got out of the car. The Jeep drove off while appellant
had the gun pointed at Edwards.
Appellant got into the car, then moved the gun from his right to his left hand so it
was still pointing at Edwards. Appellant closed the car door, and Edwards started to walk
away. The car door opened again, and appellant called Edwards back to start the vehicle.
Edwards returned to the car, started it, then exited. Appellant drove off, grinding the gears
as he went.
Edwards reported the incident to the police. On March 15, 2002, Detective Scott
Collins of the Inglewood Police Department showed Edwards a photographic lineup.
Edwards identified appellant as the person who took his car on March 3.

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On March 19, 2002, Donna Alarcon and Rollan Macadangdang were working at the
front desk of the Hampton Inn on La Cienega Boulevard. Appellant came to the counter
and demanded money. He had his right hand in his pocket, and it seemed as though he
might have a gun. The clerks gave appellant approximately $500, which he stuffed into his
pocket and inside his vest. Alarcon identified appellant from photographs taken of him on
videotape during the robbery. She also identified appellant in a photographic lineup.
Appellant was arrested and charged with one count of carjacking with personal use
of a firearm, and two counts of robbery. It was alleged that appellant had a serious felony
prior, and three prison priors. He was convicted as charged, and the priors were found to be
true. Appellant was sentenced to a total term of 35 years, 4 months, which included the
upper term of nine years on the carjacking, and consecutive sentences of eight months for
each robbery. This is a timely appeal from the judgment of conviction.
DISCUSSION
I
Appellant claims the trial court abused its discretion in admitting evidence regarding
an anonymous telephone tip received by the Inglewood Police Department. According to
the offer of proof by the prosecution, an anonymous caller told an officer at the station:
“Anthony Herod carjacked some guy at the 76 gas station on Century and Crenshaw, and
he’s the guy you’re looking for.” The officer gave that information to Detective Collins,
who put together a six-pack photo lineup which included five random photographs and a
photograph of appellant. The prosecutor did not intend to bring in the contents of the call,
just that “there was a phone call that came in to the station that Detective Collins, in his
investigation, learned of the phone call, spoke to some detectives, and because of that he
went on to make a six-pack and to explain how the six-pack came to be. That is all.”
Defense counsel objected: “[M]y objection is simply that I didn’t feel that how Mr.
Herod got into the six-pack was relevant, just that he did some investigation and put him in
the six-pack and he was identified.”

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The court disagreed: “Well, I think it is relevant, otherwise, the jury is going to
wonder how they ever came up with Herod because the victims evidently didn’t know him,
and they might think that they picked him out just because he got a record or whatever they
might imagine. So I think that is germane and relevant to the case.”
In accordance with this ruling, Detective Collins was asked on direct examination:
“In investigating this case did a phone call come into your police station?” He answered,
“Yes.” He was then asked, “And based on your investigation, what did you do?” He
replied, “I was able to obtain a photo off of a computer at work.” Collins identified
appellant as the person whose photograph he obtained, and testified that he placed it in a
six-pack with five other photos. He showed the six-pack to Mark Edwards, the victim of the
carjacking. Edwards “almost immediately” identified appellant’s photograph as that of the
perpetrator.
Appellant claims evidence of the anonymous telephone call was irrelevant and
“clearly insinuated excluded hearsay statements.” We disagree.
First, to the extent appellant is arguing the evidence was inadmissible hearsay, the
issue is forfeited. At the time of the prosecution’s offer of proof, defense counsel argued,
“[M]y objection is simply that I didn’t feel that how Mr. Herod got into the six-pack was
relevant, just that he did some investigation and put him in the six-pack and he was
identified.” The court clarified, “Well, your objection is relevance, then. It wouldn’t be
hearsay because they’re not offering the content.” Defense counsel replied, “Right.” The
issue of hearsay has not been preserved. (See People v. Lewis (2001) 25 Cal.4th 610, 664.)
More importantly, there was no hearsay. The evidence was that in response to a
telephone call to the station, Detective Collins obtained appellant’s photograph from the
computer and showed it to the victim. There was no evidence of the contents of the
telephone call or its truth.
A trial court has broad discretion in determining the relevance of evidence. (People
v. Heard (2003) 31 Cal.4th 946, 973.) “‘Relevant evidence’ means evidence, including
evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination of

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the action.” (Evid. Code, § 210.) Here, evidence of the telephone call tends to establish that
Detective Collins had a reason to include appellant’s picture in the six-pack. This evidence
has some bearing on the weight to be given to the victim’s identification of appellant from
the photographic lineup. The trial court acted well within its discretion in admitting this
evidence.
II
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States
Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Just after briefing was complete in this case, the
Supreme Court decided Blakely v. Washington, supra, 124 S. Ct. 2531 (Blakely), in which it
applied that rule to a Washington state sentencing scheme. The defendant in Blakely had
been convicted of a Class B felony. Under Washington law, Class B felonies are punishable
by a prison term up to a maximum of 10 years. The sentencing scheme also provides for a
“standard range” of 49 to 53 months punishment for Class B felonies, but authorizes a judge
to impose a sentence above the standard range (but within the 10-year maximum) on the
basis of “‘substantial and compelling reasons justifying an exceptional sentence.’” (124
S.Ct. at p. 2535, quoting Wash. Rev. Code Ann., § 9.94A.120(2).) If the judge imposes an
exceptional sentence, he or she must set forth findings of fact and conclusions of law to
support it. (Ibid.) The judge imposed an exceptional sentence of 90 months, justified on the
ground that the defendant had acted with “deliberate cruelty,” which was one of the
statutory grounds for an exceptional sentence. (Ibid.)
The State of Washington argued that there was no Apprendi violation because the
relevant “statutory maximum” was the 10-year maximum, not the 53 months at the top of
the sentencing range for Class B felonies. The Supreme Court rejected that argument,
holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the maximum

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sentence a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.” (124 S.Ct. at p. 2537.) The Supreme Court held
the sentencing procedure violated defendant’s Sixth Amendment right to jury trial and was
therefore invalid. (124 S.Ct. at p. 2538.) It appears that the holding applies to all cases not
yet final when Blakely was decided in June 2004. (See Schriro v. Summerlin (2004) 124
S.Ct. 2519.)
Appellant was sentenced to the upper term for carjacking with consecutive sentences
for the robbery counts. We asked the parties to submit supplemental briefing on the
application of Blakely to this sentence. Appellant, as expected, argues that Blakely applies
to the California determinate sentencing law. We agree. Under Penal Code section 1170,
subdivision (b), “[w]hen a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall order imposition of the middle term, unless
there are circumstances in aggravation or mitigation of the crime.” Circumstances in
aggravation cannot include a fact on which an enhancement is based or a fact which is an
element of the underlying offense. (Cal. Rules of Court, rule 4.420(c) & (d).) Like the
“standard range” in the Washington sentencing scheme considered in Blakely, the middle
term under California law is the maximum sentence the court can impose “solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant. . . .” (Blakely,
supra, 124 S.Ct. 2531, 2537.)
We turn to the facts of our case. The trial court found no mitigating circumstances,
and several circumstances in aggravation: “The crimes indicate planning, sophistication, or
professionalism. At least as to Count 1 the defendant used a weapon at the time of the
commission of the crime. The defendant has engaged in violent conduct which indicates a
serious danger to society. He’s had numerous brushes with the law of which this is the
latest, perhaps the wors[t]. He served a prior prison term. He was on parole when the crime
was committed, and he performed poorly on parole. So all of these factors justify the
imposition of the high term.”
The jury found the use of a firearm to be true, and in a court trial, the court found the
prior prison term to be true. But sentence enhancements were imposed for each, and the

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prohibition against dual use of facts prohibits use of the same facts as factors in aggravation.
(Cal. Rules of Court, rule 4.420; People v. Coleman (1989) 48 Cal.3d 112, 163-164.)
The remaining facts relied on by the court to impose the upper term, while proper
bases for an upper term, were not found true by the jury, nor were they admitted by
appellant. Under Blakely, use of these facts to impose the upper term does not comply with
the Sixth Amendment, resulting in an invalid sentence. (Blakely, supra, 124 S.Ct. at
pp. 2537-2538.)
We reach a different conclusion as to the imposition of consecutive rather than
concurrent sentences for the robbery counts, which involved separate crimes on separate
occasions against separate victims. The right to jury trial considered in Apprendi and
Blakely involve the “requirements of trying to a jury all facts necessary to constitute a
statutory offense, and proving those facts beyond reasonable doubt.” (Apprendi, supra, 530
U.S. at pp. 483-484.) The decision to impose a consecutive rather than concurrent sentence
involves the cumulation of penalties for multiple crimes. The trial court is not required to
make factual findings to support a decision to impose consecutive terms. Nonexclusive
criteria for that decision are set out in California Rules of Court, rule 4.425, but neither the
Rules of Court nor the Penal Code requires judicial fact finding to support that decision.
(See Cal. Rules of Court, rules 4.406, 4.433(c); Pen. Code, § 1170.3, subd. (a)(3).)
The consecutive sentencing decision can only be made after the accused has been
found beyond a reasonable doubt to have committed two or more offenses. This fully
complies with Sixth Amendment jury trial and Fourteenth Amendment due process rights.
(See People v. Sykes (2004) 120 Cal.App.4th 1331, 1345.)
DISPOSITION
The matter is reversed in part and remanded for resentencing on count 1, in
accordance with the views expressed in this opinion; in all other respects the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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EPSTEIN, Acting P.J.
We concur:
HASTINGS, J.
CURRY, J.

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