P. v. Hall

1
Filed 5/21/07 P. v. Hall CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
BENJAMIN HALL et al.,
Defendants and Appellants.
C048424
(Super. Ct. Nos.
SF086818B, SF083618A)
Defendants Benjamin Hall and Andre Bernard White robbed a
bank. Shots were fired at a Stockton police officer during the
ensuing pursuit.
A jury convicted defendant White of assault with a firearm
on a police officer (Pen. Code, § 245, subd. (d)(1)--count 1;
unspecified section references that follow are to the Penal
Code), robbery (§ 211--count 2), and being a felon in possession
of a firearm (§ 12021, subd. (a)--count 3.) The jury also found
that defendant White personally used a firearm in the commission
of the assault and robbery. (§ 12022.53, subd. (b).) The jury

-- 1 of 12 --

2
acquitted defendant Hall of the assault charge but convicted him
of robbery and found he used a firearm in the commission of that
offense. The jury found defendants not guilty of gang-related
charges.
The trial court found prior convictions and prison term
allegations against defendant White to be true, and imposed an
aggregate prison sentence of 83 years to life. The court
sentenced defendant Hall to a prison term of 15 years.
Both defendants appeal. Defendant White asserts that there
is insufficient evidence to support the jury’s finding that he
personally used a firearm in the commission of the assault.
Both defendants contend that the trial court erred in refusing
to permit a rereading of counsel’s closing arguments. And,
citing Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d
856] (Cunningham), both defendants also assert that the
imposition of upper-term sentences violated their rights to jury
trial and due process. We disagree with each of these claims
and affirm the judgment.
D ISCUSSION
Given the nature of defendants’ claims on appeal, we forego
a factual recitation of the underlying offenses and instead
incorporate relevant facts in our discussion.
I
Sufficiency of the Evidence
Defendant White contends that there is insufficient
evidence to support the jury’s finding that he personally used a

-- 2 of 12 --

3
firearm in the commission of count 1, assault on the peace
officer. We disagree.
“The proper test for determining a claim of insufficiency
of evidence in a criminal case is whether, on the entire record,
a rational trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People
v. Jones (1990) 51 Cal.3d 294, 314.)
A reasonable inference “‘may not be based on suspicion
alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. [¶] . . . A finding of fact must be
an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.”’
[Citation.]” (People v. Raley (1992) 2 Cal.4th 870, 891.)
“Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts on which that
determination depends. [Citation.] Thus, if the verdict is
supported by substantial evidence, we must accord due deference
to the trier of fact and not substitute our evaluation of a
witness’s credibility for that of the fact finder.
[Citations.]” (People v. Jones, supra, 51 Cal.3d at p. 314.)
At trial, Stockton Police Officer Matthew Golden testified
that he was near the bank when he heard the radio broadcast

-- 3 of 12 --

4
about the robbery in progress. Golden spotted the suspects’
vehicle and its three occupants: the driver, a passenger in the
front seat, and a passenger in the rear. As he pursued the
vehicle at high speeds, one of the passengers put his left arm
out of the car and fired six shots toward Golden from the right
hand side of the car. Fortunately, Golden was not hit.
Testing revealed that defendant White had gun shot residue
on the web of his left hand, between his thumb and index finger.
A criminalist explained that residue is usually found in an area
within 2-1/2 feet of where a gun is discharged. In windy
conditions, residue is more likely to be found close to the
source of firing. The criminalist outlined four reasonable
explanations for finding residue on defendant White’s hand: (1)
White fired the gun, (2) White’s left hand was within 2-1/2 feet
of where the gun was discharged, (3) White handled a firearm
that had previously been discharged, or (4) someone who had
handled a firearm had touched White. He acknowledged that a
police officer with gunshot residue on his hands could transfer
residue to a suspect during handcuffing, but he also said it
would be unusual to find residue on only one hand under those
circumstances. No guns had been fired inside the bank.
On appeal, defendant White asserts that “the presence of a
few particles of gunshot residue on his left hand is
[insufficient] to establish firearm use,” i.e., to establish
that he was the person who shot at Officer Golden. But that is
not the only evidence that was presented. Not only was there
evidence that defendant White had gunshot residue on his left

-- 4 of 12 --

5
hand, but Officer Golden also testified that the person who
fired the gun did so with his left hand. No gunshot residue was
found on codefendant Hall’s hands. Given this evidence, the
jury could reasonably conclude that it was defendant White who
fired the shots at Officer Golden. Substantial evidence
supports that determination.
II
Rereading of Closing Arguments
During its deliberations, the jury asked for a rereading of
witness testimony and closing arguments. The court allowed the
requested witness testimony to be re-read to the jury. However,
the court said that it generally did not allow a rereading of
arguments because they are not evidence, and also noted that a
rereading of counsels’ arguments would take nearly one full day.
The court stated it was not inclined to grant the jury’s request
unless all of the attorneys agreed. Both defense attorneys
expressed their preference for rereading the arguments, but the
prosecutor disagreed. The court therefore did not permit the
arguments to be reread.
On appeal, defendants Hall and White assert that the trial
court abused its discretion in making this ruling. We do not
agree.
A jury has the right to rehear evidence and instructions on
request. “After the jury have retired for deliberation, if
there be any disagreement between them as to the testimony, or
if they desire to be informed on any point of law arising in the

-- 5 of 12 --

6
case, they must require the officer to conduct them into court.
Upon being brought into court, the information required must be
given in the presence of, or after notice to, the prosecuting
attorney, and the defendant or his counsel, or after they have
been called.” (§ 1138.)
However, because the arguments of counsel are not evidence,
section 1138 does not give the jury an absolute right to rehear
argument. Instead, such a request is left to the sound
discretion of the trial court. (People v. Gurule (2002) 28
Cal.4th 557, 649; People v. Pride (1992) 3 Cal.4th 195, 266-267;
People v. Gordon (1990) 50 Cal.3d 1223, 1259-1260, disapproved
on other grounds in People v. Edwards (1991) 54 Cal.3d 787,
835.)
Here, the trial court acted well within its discretion in
refusing to reread counsel’s closing arguments. The court noted
that arguments are not evidence and that the arguments took a
full day of court time. The trial had already exceeded the time
estimates initially given to the jurors. Under these
circumstances, the court’s ruling was not unreasonable.
Citing People v. Gordon, supra, 50 Cal.3d at p. 1260,
defendants assert that the court’s decision “undermined the
overall fairness of [defendants’] trial because no witness had
identified [defendants] as . . . the robbers. The jury could
resolve the identity issue only by comparing the closing
arguments of counsel.” That simply is not the case. The jury
could resolve the identity issue by examining the evidence
introduced at trial. That evidence included security tapes of

-- 6 of 12 --

7
the robbery, eyewitness descriptions of the robbers, and the
descriptions of defendants’ attire when arrested.
Defendants’ claim that the denying a readback of arguments
“affected defense counsel’s ability to participate in the fact
finding process” is likewise without merit. Defense counsel
effectively presented and argued their cases. Their ability to
participate fully in the trial was not impacted by the trial
court’s decision. (See People v. Gurule, supra, 28 Cal.4th at
p. 649.)
For similar reasons, we also reject defendants’ claim that
the case was so complex that a readback was necessary to give
defendants the full benefit of the adversarial process.
Defendants overstate the complexity of the case. Issues
centered on questions of identity, and defense counsel
effectively emphasized the lack of definitive identification.
(See People v. Sims (1993) 5 Cal.4th 405, 453.)
Finally, defendants suggest that an extended Labor Day
holiday break between the conclusion of arguments and the
beginning of deliberations necessitated a readback of the
attorneys’ arguments. Nothing in the record indicates that this
delay caused any problems for the jurors. In fact, the jury’s
request for a readback of arguments did not occur until its
second day of deliberations.
In short, the court acted well within its discretion in
refusing to read back the arguments of counsel. There was no
error.

-- 7 of 12 --

8
III
Sentencing Error
Citing Cunningham, defendants contend that the imposition
of the upper term violated their right to jury trial on the
aggravating factors used to enhance their sentences.
Resentencing is not required in this case.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d
435] (Apprendi), the Supreme Court held that other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be tried to a
jury and proved beyond a reasonable doubt. (Id. at p. 490 [147
L.Ed.2d at p. 455].) For this purpose, the statutory maximum is
the maximum sentence that a court could impose based solely on
facts reflected by a jury’s verdict or admitted by the
defendant. Thus, when a sentencing court’s authority to impose
an enhanced sentence depends upon additional fact findings,
there is a right to a jury trial and proof beyond a reasonable
doubt on the additional facts. (Blakely v. Washington (2004)
542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414] (Blakely).)
In Cunningham, the Supreme Court held that by “assign[ing]
to the trial judge, not the jury, authority to find the facts
that expose a defendant to an elevated ‘upper term’ sentence,”
California’s determinate sentencing law “violates a defendant’s
right to trial by jury safeguarded by the Sixth and Fourteenth
Amendments.” (549 U.S. at p. ____ [166 L.Ed.2d at p. 864],
overruling People v. Black (2005) 35 Cal.4th 1238 on this point,

-- 8 of 12 --

9
vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167
L.Ed.2d 36].)
Here, the People contend defendants forfeited any claim of
sentencing error by failing to object in the trial court. That
is not the case. Defendants invoked Blakely before trial began
and again at sentencing.
Although defendants preserved their contention for appeal,
it is not persuasive.
In sentencing defendant White, the trial court stated that
this case “clearly calls for an upper term.” The court found a
number of aggravating factors described in California Rules of
Court, rule 4.421 to be applicable: (1) the number of guns used
in the robbery increased the dangerousness of the crime, (2)
defendants displayed callousness toward the victims, (3) the
robbery involved a higher than average degree of planning, and
(4) a relatively large amount of money was taken.
After enumerating these aggravating factors, the court
said, “And regardless of any of those factors, and frankly, I
think, notwithstanding Blakely, no matter it’s held to apply to
California sentencing or not, Mr. White, of course, has a prior
prison term under [rule] 4.421 subsection (b)(3). And
obviously, his prior prison term and his prior convictions were
almost identical to the same to what he did here, so he
obviously didn’t learn anything from the prior convictions that
he had.” (Italics added.) The court imposed an aggregate
prison term of 83 years to life.

-- 9 of 12 --

10
In this case, while the court cited factors that were not
found true by the jury, it emphasized defendant White’s prior
prison term and convictions. Given these explicit comments, we
are satisfied beyond a reasonable doubt that the court would
have imposed the upper term based solely on defendant’s record.
Any error in considering other factors was harmless.
The same is true for the sentence imposed for defendant
Hall. The probation report noted that defendant admitted
serving a Nevada prison sentence in 2000-2001 for a felony
charge of possession of stolen property. Between 1994 and 1997,
defendant had juvenile petitions sustained in California courts
for numerous felonies, including grand theft, discharging a
firearm at a dwelling, use of firearm, assault with a deadly
weapon on a public transit employee, and two robberies. These
offenses were in addition to other sustained petitions involving
five misdemeanor offenses.
In sentencing defendant Hall to a prison term of 15 years,
the court stated “if ever there was a case that called for the
upper term this is certainly one of them.” Citing the
California Rules of Court, it noted that three loaded guns were
used in the robbery, the crime involved several victims, one of
the victims was slapped, the robbery involved planning, and a
large amount of money was taken. As already noted, these
factors were not necessarily found to be true by the jury.
However, the court then commented: “In addition to that,
and even separately from the Blakely situation--Blakely, I don’t
think is ever going to apply, at least the way it’s--the case

-- 10 of 12 --

11
was written anyway--does not apply to the finding of priors in
this case for the purpose of determining sentencing. [¶] And
in this case, the defendant Benjamin Hall has two prior
robberies and a 245 as a juvenile and the use of a gun. And so
based upon that, I think that that alone is sufficient for the
imposition of the upper term in this case.”
As in the case of defendant White, the trial court placed
primary emphasis on defendant Hall’s record of recidivism. The
prior conviction exception of Apprendi, Blakely and Cunningham,
applies not only to the fact of a prior conviction, but also to
“an issue of recidivism which enhances a sentence and is
unrelated to an element of a crime.” (People v. Thomas (2001)
91 Cal.App.4th 212, 223.) Defendant Hall had numerous prior
criminal juvenile adjudications and he admitted serving a recent
felony prison sentence. Given this history, the trial court
could properly impose an aggravated sentence without violating
defendant’s right to jury trial. The trial court’s explicit
comments make it clear that that is what it intended to do.
Contrary to defendant’s suggestion, the court’s erroneous
reference to a “245” in one of the juvenile petitions is
immaterial. The sustained petition actually involved section
245.2, assault with a deadly weapon committed against a public
transit employee, not section 245. The critical fact is that
both statutes are assaults; section 245.2 is simply a specific
statute that applies to a particular class of victims. This
distinction is of no benefit to defendant.

-- 11 of 12 --

12
Given the court’s statements regarding defendant’s record,
any error in considering other factors was harmless beyond a
reasonable doubt. Resentencing is not required.
D ISPOSITION
The judgment is affirmed.
HULL , J.
We concur:
NICHOLSON , Acting P.J.
MORRISON , J.

-- 12 of 12 --