P. v. Huggins

Filed 12/6/04 P. v. Huggins CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER M. HUGGINS et al.,
Defendants and Appellants.
D042150
(Super. Ct. No. SCN128327)
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Reversed in part, affirmed in part, and remanded.
Defendants Christopher M. Huggins and Robert A. Ortiz were convicted of
conspiracy, kidnapping for robbery, two counts of kidnapping for ransom, two counts of
robbery in concert, robbery and burglary of an inhabited dwelling. Firearm use
allegations were found true as to various counts within the meaning of Penal Code1
1 All further statutory references are to the Penal Code unless otherwise specified.

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sections 12022.53, subdivision (b), and 12022.5, subdivision (a)(1). "Great taking"
enhancements were found true within the meaning of section 12022.6, subdivision (a)(2),
as to the conspiracy and robbery charges. Huggins and Ortiz were sentenced to three
consecutive life terms with the possibility of parole and to additional consecutive terms
of 32 years.
Huggins appeals, arguing ineffective assistance of counsel and insufficiency of
evidence as to the firearm use and great taking allegations. Ortiz appeals, arguing the
trial court erred in denying his request for information concerning jurors and in failing to
instruct concerning the requirement for unanimity as to the kidnapping charges and that
there was insufficient evidence to support the kidnapping convictions. In supplemental
briefing both Huggins and Ortiz challenge the imposition of upper term sentences and
consecutive sentences, relying on Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct.
2531; 159 L.Ed.2d 403]. We will affirm the convictions, but vacate the imposition of the
stayed, upper term, determinate sentences and remand for resentencing.
FACTS
A. Prosecution Case
1. Crimes
In November 2000, Michelle Ramskill-Estey was the manager of a bank in Vista.
Estey lived in Vista with her seven-year-old daughter Breea at the home of a friend,
Kimbra Oliver.
On November 21, 2000, Christopher Butler came to Estey's bank and talked to her
about opening large accounts. The two talked for approximately an hour. Butler's

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girlfriend Lisa Ramirez entered the bank and told Butler he had missed an appointment.
Butler and Ramirez departed.2
Later in the day, Estey left work, picked up Breea and arrived home at about
7:00 p.m. Estey and Oliver each had a dog. As Estey approached the house, she noticed
a third dog in the yard, a Rottweiler she had not seen before. Estey entered the house. As
she put away her groceries, three masked and gloved men carrying handguns broke into
the house through a rear door. Estey was thrown to the floor and two of the men put their
guns to her head. Based on his eyes, voice and mannerisms, she recognized one of the
men as Butler. One of the other men was Black and very large. Huggins is Black,
between six-feet and six-feet, one-inch tall and weighs between 225 and 230 pounds.
The third man was very skinny and had a lighter complexion. Ortiz is known as "Bones."
He is five-feet, seven-inches tall and weighs 140 pounds.
Estey and Breea were tied with duct tape. Butler told Estey if she did not do as
she was told, they would kill Breea as Estey watched. Butler told Estey he knew she was
a bank manager and they had been following her and another bank employee for months.
Butler made comments indicating knowledge of operations at Estey's bank. Butler asked
when Estey's roommate would be home. He told Estey that in the morning they were
going to strap Estey, Breea and Oliver with dynamite. She was shown an object that
looked like sticks of dynamite and was told if she did not do as she was told, the
2 Butler and Ramirez were tried separately from Huggins and Ortiz.

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dynamite would be detonated. She was told that Breea would be disintegrated. Estey
could hear Butler talking to a woman via a walkie-talkie.
At about 11:00 p.m., Oliver returned home. As she entered the house two men put
guns to her head and took her to her bedroom. Oliver noticed that at all times the three
men displayed their guns. She could tell that two of the men were Black and one was
Hispanic. Later, Oliver was placed on the couch with Estey and Breea. When Oliver
would not calm down, the men taped her and put her on the floor. The men later untaped
Estey and Breea. In addition to their guns, the men brought two spears to the house. The
men told Oliver they were there to rob Estey's bank.
In the morning Butler told Estey to get ready for work. Butler taped what he told
her was dynamite to her back. The dynamite was actually dowels wrapped in red paper.
She was told if she tried to remove the dynamite it would explode. "Dynamite" was also
taped to Breea and Oliver. Estey was told if she did not do what she was told and if she
did not get money from the bank, the dynamite would be detonated.
Estey, with Butler crouched down behind the seat, drove to the bank. Butler
communicated with other persons on a walkie-talkie. Estey entered the bank. After the
Brink's delivery, she went into the vault with another employee. Estey stated she had to
take money because dynamite was strapped to her back and to Breea. Estey took what
was later determined to be $360,000 and returned to her car.
Butler gave Estey driving instructions. Eventually, he told her to stop and get out
of the car. He told her she could recover her car on a nearby street and drove off. Estey

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found her car at the location described. She drove back to her house. The three women
removed the dynamite and reported the crime to the police.
2. Investigation
a. Huggins
Because Estey believed Butler was one of the men involved in the robbery, the
police developed information concerning him. The officers learned Butler, Ramirez and
Huggins lived at the same residence in Oceanside. A search of the residence on
December 1, 2000 resulted in the seizure of duct tape, rubber gloves, knit caps with holes
cut in them and a revolver.
Huggins was arrested on December 1, 2000. Clothes and gloves that were seized
from his car were similar to those used by the large Black intruder at Estey's home.
Huggins waived his rights and spoke to officers. Huggins stated Butler recruited him for
the robbery several days before it occurred. Huggins explained the plan was to enter a
bank manager's house, strap dynamite to her back, her daughter's and her friend's and
make the manager go to her bank and get money. Huggins stated Butler forced his way
into the house while he waited outside. Once Butler was in the house, Huggins entered.
Huggins's description of the events the night and morning of the crime generally agreed
with the description given by Estey and Oliver. Huggins admitted taking items from
Estey's home, including a CD player and a camcorder.
Huggins's girlfriend testified that in the days following the crime he spent lavishly
on his friends. Huggins left a safe with her in which officers found $93,100 in cash.

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b. Ortiz
On February 20, 2001, Ortiz was arrested while hiding in the attic of a house in
Milwaukee. Officers found a safe containing $32,855 in the house. Ortiz waived his
rights and spoke to officers. Ortiz stated he was recruited by Butler to participate in a
bank robbery. Butler explained he did not want to enter the bank to commit the robbery.
Instead, fake bombs were to be put on bank personnel to compel them to take money
from the bank. Over a period of time Butler, Ramirez and Ortiz conducted a surveillance
of the bank, the bank manager and her home.
Ortiz explained they were aware that dogs lived at the manager's house. The night
of the crime Ortiz took his dog with him to deal with the manager's dogs. When the dogs
at the house started to bark, he released his dog. The dogs played together. The men also
took two spears to deal with the dogs.
The men were at Estey's house when she arrived with her daughter. The men
waited for about 30 minutes, then broke down the door and entered the house. Ortiz's
description of the events the night and morning of the crime generally agreed with the
description given by Estey and Oliver.
B. Defense Case
Neither Huggins nor Ortiz testified. Their attorneys, however, based on what they
perceived as anomalies in the prosecution's case, e.g., Butler's lengthy and very visible
appearance at the bank the day of the home invasion, the bringing of a dog to Estey's
house, Butler's retaining items used in the crimes and the women's financial difficulties,
offered the remarkable and highly speculative defense that a conspiracy existed but

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Huggins and Ortiz were not part of it. The defense offered that Estey, Oliver and Butler
planned to take a large sum of money from Estey's bank. There was, however, no
robbery since Estey was a willing participant in the theft. While the invasion of Estey's
and Oliver's home occurred, it was a mere charade played out for the benefit of Huggins,
Ortiz and most importantly Estey's daughter, Breea.
Breea was seven years old and could not be relied upon as a consistent or
convincing liar. It was necessary, therefore, to actually commit the "crimes." In addition,
carrying out the robbery, burglary, kidnappings, and assaults in her presence would make
Breea's account of events and the claim such a crime had occurred believable. Leaving
Huggins and Ortiz unaware of the true nature of the enterprise would make their
"performances" more convincing and tend to protect Estey and Oliver. Defense counsel
also suggested the men brought spears to the house because a child of Breea's age would
be more frightened by such objects than by guns.
Estey and Oliver were to take none of the proceeds of the theft that would go to
Huggins, Ortiz, Butler and Ramirez. It was possible, however, in the defense view, that
Estey removed $18,400 from the vault in her underwear the day before the supposed
invasion of her home. A discrepancy of that amount−there was evidence that in fact no
such discrepancy existed−was discovered in the vault the day before the charged crimes.
Counsel suggested Estey might also have removed as much as $60,000 in her underwear.
The loss of this money would have been covered by the robbery. Estey's and Oliver's real
benefit from the crime was a lawsuit Estey planned to file against her employer arising

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from the effects of the robbery and kidnapping on her, Oliver and Breea. By the time of
trial Estey had filed such a suit.
Counsel argued it was not difficult to believe a mother would put her seven-year-
old daughter through a long night of terror punctuated by three masked and armed men
bursting through the door of her home, duct taping her, her mother and housemate,
holding them overnight, strapping what she was told was dynamite to her and the others
and then taking her mother away. Counsel explained mothers routinely take their
daughter to theme parks and go with them on thrill rides. In any case, one night of terror
for Breea would be made up for by receiving a settlement or judgment that would pay for
her college as well as post-graduate education. Counsel also noted children are resilient.
In the defense view, Estey and Oliver planned to and did "double cross" Butler.
Estey would tell the police she recognized one of the men who broke into her house as
Butler. Butler and the others would be arrested. The investigation of the crime would be
closed and the credibility of her case against the bank would be stronger.
If this interpretation of events was accepted, it would provide a defense as to any
crimes in which Estey or Oliver were the alleged victims. Whether as to Huggins and
Ortiz it would have provided a defense to the conspiracy charge or the crimes in which
Breea was the alleged victim, is, given the verdicts, academic.

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DISCUSSION
I
INEFFECTIVE ASSISTANCE OF COUNSEL
While noting trial counsel moved for exclusion of his confession, arguing it was
both coerced and taken in violation of Miranda,3 Huggins contends counsel provided
ineffective assistance when he failed to argue the confession was also the product of an
improper offer of leniency. The issue is also raised in a companion petition for writ of
habeas corpus.4
In Huggins's motion to suppress his confession, he argued that he requested
counsel before questioning, but his request was ignored and his confession was coerced
by threats of harm to his children. Attached to the motion was a declaration from
Huggins, arguing that during his interrogation he repeatedly requested the assistance of
counsel but his requests were ignored. Additionally, he stated he agreed to answer
questions only because he believed harm would come to his children if he did not.
The prosecutor's written response to Huggins's motion was expansive. It
discussed not only the Miranda and coercion claims but argued that nothing said by the
officers during the interrogation constituted improper promises of leniency.
A hearing was held on the motion. Kelan Poorman of the Oceanside Police
Department, testified Huggins was arrested at a motel in Riverside County at 6:00 a.m.
3 Miranda v. Arizona (l966) 384 U.S. 436.
4 We dispose of this issue separately.

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on December 1, 2000. Huggins was transported to a Riverside sheriff's substation where
Poorman and FBI Agent Gerald Brown interviewed him. Before being taken to the
substation, Huggins was asked no questions. Poorman testified that at no time during the
interview did Huggins ask for an attorney. At no time during the interview was Huggins
threatened nor were any threats made concerning his children.
Huggins testified he had reviewed the transcript and it contained errors. He
identified places where the transcription identified his statements as unintelligible and
stated his responses were actually repeated requests for counsel. His requests were
ignored. Huggins testified that during the interrogation he was under the influence of
marijuana. Huggins testified that contrary to the statement of the officer in the transcript,
he was never read his Miranda rights. He stated at a place in the transcript that indicated
a pause, he was shown a photograph of himself and his girlfriend. While it does not
appear on the record, the officers told Huggins if he did not cooperate they were going to
arrest his girlfriend. Huggins stated the officers wrote notes to him during the interview
stating if he told them he was involved in the crime, they would take it easy on him in
court.
Huggins stated he was afraid of the officers. He noted they were armed, in a small
room, were loud and made intimidating gestures. Huggins testified the officers
threatened his girlfriend and her children. He stated the officers told him they were going
to kick in the door of the house where she and the children lived, wave guns and arrest
them.

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The interview was video and audiotaped. A transcript of the interrogation reveals
the following: Huggins was read his Miranda rights. He stated he understood them and
agreed to talk to the officers. Huggins was told the officers had a great deal of
information tying him to a home invasion and bank robbery in Vista. Huggins stated he
knew nothing about the crimes. The officers replied they were gathering additional
evidence and were arresting other participants. They told Huggins while they did not
believe he had a major role in the crimes, his confederates would undoubtedly talk,
however, and claim that Huggins had a large role in the enterprise. The officers wanted
to know whether his role in the crime was a major one or a minor one. They stated there
was a difference.
Huggins replied it was all the same thing.
The officers stated that was not true. Agent Brown stated: "Who would you be
more ready to be lenient with . . . , the mastermind, the organizer, or the person who
played a very nominal small role . . . . The guy that played a major role or the minor
role?" Huggins at first, stated the guy with the major role. After discussing the matter
further Huggins agreed the person with the lesser role would be treated more leniently.
When the officer again asked Huggins if they were right in believing his role in
the crime was a small one, he stated yes. Huggins stated the person who played the
major role in the crime was a man he knew only as KK. When Huggins stated he did not
participate in the crime, Agent Brown told him not to lie. He told Huggins: "When you
start bull shitting with me and start lying with me and I know the truth, you lose all your

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credibility and I won't help you." Huggins then told the officers he did go to the house.
His job was to watch and make sure no one was coming.
Huggins then began describing how the crime occurred. While the broad outline
he related was accurate, many of his statements were lies, e.g., he insisted Butler was not
KK. The officers told Huggins he was not being truthful with them and again asked him
how the crime occurred and who was involved.
As the interrogation progressed, Huggins continued to give the officers a series of
half-truths concerning the crime. The officers continued to reveal information about the
crime to show Huggins they knew he was lying. At one point Agent Brown told Huggins
they did not believe he played a major part in the crime and were giving him an
opportunity to tell them what occurred. Brown told Huggins: "If you want to help
yourself, we need the whole truth."
Huggins continued to tell half-truths, including his continuing insistence that
Butler was not involved in the crime. Huggins was then told that Butler and Ramirez
were in custody. The officers told Huggins that Butler, Ramirez and others involved in
the case were explaining how the crime was committed. Huggins was told Butler had
admitted participation in the crime and there was no reason to protect him. Huggins
insisted KK and not Butler was involved in the crime. He continued to portray his own
part in the crime as a minor one. The officers continued to give Huggins information
concerning the investigation, including that both Huggins's and Butler's fingerprints were
found on the fake sticks of dynamite.

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Huggins eventually agreed the officers were largely correct concerning their
version of how the crime occurred and who was involved. He continued to be untruthful
concerning details of the crime, including how much he received for participating.
The trial court reviewed the audio and videotapes. The court stated based on that
review there was "not one scintilla of evidence" to support Huggins's claims. The court
found Huggins was read his rights and waived them. He did not request counsel; he was
coherent and understood what was occurring. There was nothing indicating undue
coercion. His statements were free and voluntary and his motion to suppress his
statements was denied.
A criminal defendant is entitled to the effective assistance of counsel. It is the
defendant's burden to demonstrate any claim of inadequacy. A defendant must show that
the assistance given was deficient, that is, it fell below an objective standard of
reasonableness under prevailing professional norms, and that it was prejudicial. We defer
to counsel's reasonable tactical decisions and indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance. Defendant's
burden is difficult to carry on direct appeal. We reverse on the ground of inadequate
assistance only if the record affirmatively discloses no rational tactical purpose for
counsel's act or omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688;
People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
"A defense counsel is not required to make futile motions or indulge in idle acts to
appear competent. [Citations.]" (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091-
1092.)

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"Competent counsel is not required to make all conceivable motions or to leave an
exhaustive paper trail for the sake of the record. Rather, competent counsel should
realistically examine the case, the evidence and the issues, and pursue those avenues of
defense that, to their best and reasonable professional judgment, seem appropriate under
the circumstances. [Citation.]" (People v. Freeman (1994) 8 Cal.4th 450, 509.)
"Moreover, when 'the record contains no explanation for the challenged behavior,
an appellate court will reject the claim of ineffective assistance "unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation." ' [Citation.]" (People v. Earp (1999) 20 Cal.4th 826, 871.)
A confession is involuntary if it is elicited by any promise of benefit or leniency
whether express or implied. However, statements by the police that it would be better for
the suspect to tell the truth when unaccompanied by a promise of leniency do not render a
confession involuntary. There is no improper promise of leniency when the police
merely point out the advantages that naturally flow from honest responses. Suggesting to
a defendant that his culpability might be less based on certain circumstances is not an
implied promise of leniency. Urging a suspect to tell the truth by factually outlining the
benefits that flow from a confession is not improper. Impliedly promising lenient
treatment in exchange for a confession is improper. (People v. Holloway (2004) 33
Cal.4th 96, 115-117.)
Huggins argues trial counsel provided ineffective assistance in failing to argue his
confession was involuntary based on improper offers of leniency made during his
interrogation.

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The comments by the officers cited by appellant as promises of leniency merely
suggested to Huggins that if his role in the crimes was, as they suspected, a minor one, it
would be best for him to reveal it. There was no express or implied promise of leniency.
The officers were merely telling appellant that if his role in the crime was minor, if he
were not the planner of the crime or the force behind its commission, that was a factor in
appellant's favor that might at least mitigate his culpability. This was not improper. (See
People v. Holloway, supra, 33 Cal.4th at p. 116.)
Trial counsel could have reasonably concluded that little was to be gained by
claiming improper promises of leniency led to Huggins's confession. Huggins has failed
to demonstrate he received ineffective assistance of counsel.
II
FIREARM USE
Huggins argues in two respects the evidence was insufficient to support the true
finding on the allegations he used a firearm within the meaning of section 12022.53,
subdivision (b). First, he argues the evidence was insufficient to prove he was armed
with a firearm as the term is defined in section 12001. He contends the evidence
presented made it as likely he was armed with, for example, a pellet gun or a toy gun.
Second, he argues the nature of the weapon was insufficient to prove that he used it
within the meaning of section 12022.53, subdivision (b).
In determining whether the evidence is sufficient to support the verdict, we review
the entire record viewing the evidence in the light most favorable to the judgment and
presuming in support of the verdict the existence of every fact the jury could reasonably

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deduce from the evidence. The issue is whether the record so viewed discloses evidence
that is reasonable, credible and of solid value such that a rational trier of fact could find
the elements of the crime beyond a reasonable doubt. (People v. Brown (1995) 35
Cal.App.4th 1585, 1598.)
As to counts 1 through 7, it was found true Huggins used a firearm within the
meaning of section 12022.53, subdivision (b). That section authorizes an enhancement
when it is found true that in the commission of certain enumerated offenses the defendant
"personally uses a firearm." Section 12001, subdivision (a)(2)(b), defines a "firearm" as
"any device, designed to be used as a weapon, from which is expelled through the barrel
a projectile by the force of any explosion or other form of combustion."
A jury's task is not simply to choose between pure statements of fact but to draw
reasonable conclusions and inferences from the evidence. Criminals seldom offer their
weapons for close inspection by those they are victimizing. Further, it is often the case
that witnesses are not experts in the identification of firearms. The world is awash not
only with real firearms but also with realistic toy firearms, nonfiring, but very realistic
replicas of firearms and weapons that resemble firearms. If the only sufficient evidence
that an object is a firearm is evidence of the actual physical nature of the object, then few
firearm enhancing allegations could be proved. The law does not enforce such a
limitation. A jury may, based on the physical appearance of an object, the context in
which it is used and the manner of its use, reasonably conclude it is a firearm.
In this case Huggins and his companions conducted a highly dangerous home
invasion robbery. They displayed what appeared to be handguns. They told their victims

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they were prepared to kill them with the guns. They used the weapons as if they were
real, holding them to the heads of the victims. Since their enterprise raised the possible
need for firearms not only to terrorize but also to defend themselves from their victims,
their victims' dogs and possibly the police, it is reasonable to conclude the objects that
appeared to be firearms were in fact firearms. The jury could reasonably conclude that
men prepared to commit the crimes in this case would not in the interest of safety arm
themselves with nonlethal or less lethal weapons. While Huggins was certainly free to
note or present evidence suggesting the object he held was not a firearm, there was
sufficient evidence in this case to find it was.
Huggins argues there was insufficient evidence he used the firearm within the
meaning of sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b).
One uses a firearm within the meaning of these sections not only by firing it or
pointing it at a victim but also by displaying it in a menacing manner. The term "use" in
this context is given a broad meaning and covers actions with a firearm in furtherance of
the commission of the crime. (People v. Granado (1996) 49 Cal.App.4th 322, 325.)
Huggins argues the evidence was insufficient to prove he used a gun. He
concedes Estey testified all three masked men where armed with guns and they never put
them down. Huggins argues Estey's testimony concerning his possession of a weapon
and the manner in which he held it was very general and gave no specifics that suggested
use. He reviews the various counts and notes that while evidence established clear use by
Butler and Ortiz, it did not establish use by him.

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As noted, the term "use" in this context is given a broad meaning. While Huggins
would like to divide the evening of terror into discrete bits and discuss the evidence of his
firearm use as to each, such an approach is unrealistic. Huggins and his cohorts planned
to rob a bank. Each was armed with a firearm, one purpose of which was to ensure the
ready cooperation of their victims. That the plan required they be with the victims for a
long period of time and that each may have used his firearm more at one time than
another does not in the least change the fact that the firearms they possessed were used to
accomplish their plan and each of the crimes they committed to that end. The evidence
was sufficient to support the true findings as to Huggins on the firearm use allegations.
III
GREAT TAKING
Huggins notes true findings were made on great taking allegations within the
meaning of section 12022.6, subdivision (a)(2). That section allows the imposition of a
two-year enhancement when a person takes property and the loss to the victim exceeds
$150,000. Huggins concedes a loss in this case of $360,000 but argues since the
evidence indicated that at most he personally received $100,000, the evidence was
insufficient to support the great taking allegation.
In the context of a great taking allegation, there is no requirement an individual
personally take or receive the required amount for the particular enhancement. In People
v. Fulton (1984) 155 Cal.App.3d 91, 102, Justice Crosby stated: "[A]s the Attorney
General convincingly argues, the application of the [holding of cases dealing with being
personally armed with a gun] to the great taking enhancement would lead to absurd

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results. The criminal who masterminds the offense would be subject to less severe
punishment than the minions who actually carry out the crime at his direction." Both
Huggins and Ortiz were principals in each crime and jointly acted to take a large sum of
money from the bank.
We add it is clearly the amount of loss that is significant and not how many pairs
of hands took the money from the till. The evidence was sufficient to support the great
taking enhancements.
IV
JUROR RECORDS
Ortiz argues the trial court abused its discretion and failed to follow statutorily
required procedures when it denied his Code of Civil Procedure Code section 237 motion
seeking juror identification information for the purpose of investigating possible jury
misconduct.
Approximately two months after the verdicts were returned, Ortiz sought
confidential juror identification information pursuant to Code of Civil Procedure Code
section 237 to allow the preparation of a motion for new trial based on a claim of jury
misconduct. By declaration attached to the motion, counsel noted three factors that
suggested possible improper conduct by the jury and that required he contact jurors.
The first act Ortiz believes might possibly suggest misconduct was an incident in
which an alternate juror reported to the court a conversation in which one juror stated to
another that the closing argument made by Huggins's counsel was "bullshit." The juror
who made the remark was dismissed from the jury. Defense counsel requested the juror

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to whom the statement was made also be removed since he had at first denied hearing the
statement. The request was denied.
The record reveals the following concerning this incident: After Huggins's
counsel finished his highly interesting closing argument a recess was taken. An alternate
juror reported to the court that during the recess, Juror No. 7, referring to the argument of
defense counsel, stated in the alternate juror's and Juror No. 12's presence: "That was the
biggest load of bullshit that I've heard."
At a hearing the next day, Juror No. 7 was asked if during the last recess he had a
conversation with other jurors concerning the argument of counsel. He stated he could
remember no such conversation. Juror No. 12 stated that during the recess he had talked
with Juror No. 7 and an alternate juror. Juror No. 12 stated there might have been some
comment by a juror made during the recess concerning argument but he could not recall
what was said. He stated he could recall no statement concerning the content of
argument or the performance of any attorney by Juror No. 7.
Both defense counsel asked the court to dismiss Juror Nos. 7 and 12. Juror No. 12
was examined again. When asked if at the recess the day before Juror No. 7 stated that
the defense closing argument was "bullshit," he stated he remembered something like that
but could not remember the exact words. The court asked if anything said by any juror to
him during the case would affect his ability to be fair. He stated no.
The trial court dismissed Juror No. 7. The court refused to dismiss Juror No. 12,
stating it appeared he was not concentrating on Juror No. 7's comment during the recess
and was sincere in saying he could deliberate with an open mind.

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Counsel next argued in his request for confidential juror information that the
relatively short length of jury deliberations in this very serious case suggested
misconduct.
Jury deliberations commenced at 11:38 a.m. on September 11, 2002. Lunch was
taken from noon to 1:30 p.m. At 3:40 p.m., the jury asked to have the testimony
concerning the defendant's confessions read to them. The jury continued deliberations
until 4:27 p.m. September 12 began for the jury at 9:10 a.m. with the reading of the
requested testimony. The reading concluded at 10:25 a.m. At 11:29 a.m. the jury
notified the court it had reached a verdict.
The verdict forms for conspiracy, kidnapping for robbery and ransom, robbery and
burglary are dated September 11, while the verdict forms for the robbery in concert
counts as to Oliver and Estey are dated September 12.
As a final basis for seeking juror information, counsel's declaration states that
jurors engaged in inappropriate behavior. He states that what while the jury was outside
the courtroom waiting to enter with its verdicts, one juror wondered aloud if the jury
should do the "wave" when the verdicts were read. This apparently referred to the
practice in sports stadiums of fans rising and sitting down in a sequence that to the
observer produces a wave-like movement in the stands.
The declaration also states that during the prosecutor's closing argument when
Huggins's counsel objected to the prosecutor personally attacking the defense, several
jurors appeared to laugh.

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The record reveals that at the beginning of closing argument the prosecutor
suggested the FBI should hire defense counsel because they figured out the true nature of
the crime when no one else had. Huggins's counsel objected that the prosecutor was
mischaracterizing the defense argument. The record does not mention any laughter in the
courtroom.
The trial court denied the motion for confidential juror information. With regard
to the incident in which a juror stated the argument of defense counsel was "bullshit," the
court noted a thorough hearing was conducted concerning that matter before deliberations
began. The juror who made the statement was dismissed. The court stated there was no
basis for excusing any other juror and any further inquiry would be a mere fishing
expedition.
The court concluded Ortiz's additional arguments that the jury acted
inappropriately or did not fully consider the case were mere speculation based on
conclusory statements.
After the recording of a jury verdict in a criminal case, the court record of personal
juror identification information is sealed. (Code Civ. Proc., § 237, subd. (a)(2).) A trial
court on petition may in its discretion grant access to such information when necessary to
the development of a motion for new trial or for any other legal purpose. (Code Civ.
Proc., § 206, subd. (g).) Such petition must be supported by a declaration citing facts
sufficient to establish good cause for the release of the information. If the declaration
establishes a prima facie showing of good cause, the trial court must set the matter for
hearing and contact the juror or jurors whose personal identification information is

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sought. If the court determines not to set the matter for hearing, it is required to set forth
the reasons and make an express finding either of a lack of a prima facie showing of good
cause or the presence of a compelling interest against disclosure. (Code Civ. Proc.,
§ 237, subds. (b), (c).)
In an uncodified declaration made as part of the 1995 amendment of Code of Civil
Procedure section 206, the Legislature stated jurors who have served on a criminal case
have completed their civic duty. The Legislature stated the procedures in Code of Civil
Procedure sections 206 and 237 were designed to balance a specifically established need
for juror identification information "against the interests in protecting the jurors' privacy,
safety, and well-being, as well as the interest in maintaining public confidence and
willingness to participate in the jury system." (Stats. 1995, ch. 964, § 1, p. 7375.) The
courts have long recognized their inherent power to strike this balance. (Townsel v.
Superior Court (1999) 20 Cal.4th 1084, 1091-1096; People v. Rhodes (1989) 212
Cal.App.3d 541, 548-552 (Rhodes).)
In this context, to demonstrate the required good cause, a defendant must make a
sufficient showing "to support a reasonable belief that jury misconduct occurred."
(Rhodes, supra, 212 Cal.App.3d at p. 552.) The misconduct alleged must be " 'of such a
character as is likely to have influenced the verdict improperly.' [Citation.]" (People v.
Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the
allegations of jury misconduct are speculative, conclusory, vague or unsupported.
(People v. Wilson (1996) 43 Cal.App.4th 839, 852; Rhodes, supra, 212 Cal.App.3d at pp.

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553-554.) A trial court's denial of a petition to disclose juror identification information is
reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
Ortiz makes two claims of error. First, he argues the trial court did not follow
statutorily required procedures in addressing and resolving his request for confidential
juror information, and second, he argues he established good cause for the release of such
information and the trial court was required to provide it.
Any person may petition for the release of confidential juror information. If the
petition and supporting declaration establish a prima facie showing of good cause for the
release, then the matter is set for a hearing unless there is a showing on the record
establishing a compelling interest against disclosure. If the matter is not set for hearing,
the court is required by minute order to make express findings concerning the basis for
such denial. (Code Civ. Proc., § 237, subd. (b).)
If the matter is set for hearing, notice must be given to the parties and to the
affected jurors. An affected juror may appear at the hearing to oppose release of the
information. (Code Civ. Proc., § 237, subd. (c).)
If a hearing is held, the information must be released unless an affected juror's
protest to such disclosure is sustained. (Code Civ. Proc., § 237, subd. (d).) The protest
may be sustained if the court finds the petitioner has failed to show good cause, a
compelling interest against disclosure is established or the juror is unwilling to be
contacted. The court is required to state reasons and make express findings to support the
grant or denial of the petition. (Ibid.)

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Ortiz's disclosure petition was filed on November 15, 2002. The prosecutor
responded on December 5, 2002. On March 6, 2003, Ortiz, now represented by new
counsel, filed a notice for a hearing on the previously filed petition for disclosure. It
appears no new declarations were filed. The prosecutor filed a second response to the
request on March 25, 2003.
A hearing was held on April 4, 2003, that in large measure concerned Ortiz's
motion for new trial based on his claim of ineffective assistance of counsel. At the
beginning of the hearing the trial court addressed the petition for disclosure of juror
information. The trial court addressed at length Ortiz's arguments relating to why
disclosure was required and gave specific reasons for finding them meritless.
We first note no objection was made below to the manner in which the trial court
reviewed the petition for disclosure. In any event, while the matter was handled in a
somewhat informal manner, it is clear the trial court, after reviewing the petition and
declarations, found no prima facie case showing good cause for the release of
confidential juror information. There was no necessity, therefore, to set a hearing or
notify affected jurors. While the trial court did err in failing by minute order to make
express findings in support of the denial, there is a full record before this court
concerning the petition and the reasons it was denied. The trial court's error in failing to
make express findings in a minute order is harmless.
The question remains whether the trial court abused its discretion in finding no
prima facie showing of good cause. It did not. Ortiz's claim that it was necessary to
contact jurors because they allegedly laughed at an objection made by Huggins's counsel

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during argument, a juror suggested that when the verdicts were returned the jury do the
"wave" and their deliberations were too short did not establish good cause.
It is not clear there was any laughter during argument and if there was it would not
suggest misconduct on the part of any juror. Next, that a juror, undoubtedly under some
stress, made a joke concerning the jury doing the wave is equally as meaningless.
Further, the jury's deliberations were not lengthy. There are, however, no specific
amounts of time required in a jury's consideration of a case. With all due respect to
appellants and their trial counsel, this was not a close case and the defenses offered, to
say the least, were not compelling. Relatively brief deliberations are not inconsistent
with the evidence presented.
Neither did the trial court's removal of a juror who made less than complimentary
comments concerning defense argument and the refusal to remove another juror to whom
the comments were addressed establish good cause for revealing confidential juror
information. The comments were discovered before deliberations began. Hearings were
held on the matter, the jurors were examined and the trial court gave both appellants a
full opportunity to cross-examine the jurors. The trial court could reasonably conclude
that no showing was made that the incident required further investigation.
V
KIDNAPPING FOR ROBBERY
Ortiz argues the evidence was insufficient to support his convictions for
conspiracy to commit kidnapping for the purposes of robbery (count 1) and kidnapping
for the purposes of robbery (count 2). Specifically, he contends that any of the three

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movements to which Estey was subjected during the crime, i.e., about her home, from her
home to the bank and finally from the bank to the location where she was released, did
not increase her risk of harm and, thus, did not satisfy the asportation element of those
crimes. In any event, Ortiz argues that since there were three separate acts that could
support guilty verdicts on those counts, the trial court erred in failing to instruct
concerning jury unanimity in the terms of CALJIC No. 17.01.
A. Sufficiency of Evidence
Section 209, subdivision (b)(1), makes guilty of kidnapping for robbery "[a]ny
person who kidnaps or carries away any individual to commit robbery." " 'Kidnapping
for robbery, or aggravated kidnapping, requires movement of the victim that is not
merely incidental to the commission of the robbery, and which substantially increases the
risk of harm over and above that necessarily present in the crime of robbery itself.'
[Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 498.) Ortiz argues there was
insufficient evidence of such movement in this case. He is mistaken.
Ortiz argues the evidence showed three movements of Estey that might have
amounted to a kidnapping, i.e., movements about her house, being taken to the bank and
the drive from the bank to the point she was released. There were in fact only two
movements. There is no logical reason to divide her removal from her house into two
parts. The purpose of that movement was to complete the robbery. While Estey might
have been out of Butler's sight when she went into the bank, she certainly remained under
his control.

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The prosecutor in both his opening statement and in argument made clear to the
jury that the movement supporting the charges of kidnapping to commit robbery and
conspiracy to kidnap for the purposes of robbery was the removal of Estey from her
house to the point of her release.
The jury could reasonably conclude that movement was not merely incidental to
the robbery and substantially increased Estey's risk of harm. Butler did not merely
confront Estey at her desk in the bank and tell her to go to the vault and remove money.
He made her drive several miles from her home to the bank at gunpoint and strapped with
what she was told was dynamite as part of an elaborate scheme to rob the bank. There
was nothing merely incidental about such movement. Removing Estey from her house in
a state of near panic, at gunpoint, for a movement of considerable distance increased the
possibility of contact with other persons and possibly the police and could reasonably be
seen by the jury as having substantially increased the risk of harm above that necessarily
present in any robbery. The evidence was sufficient to convict Ortiz of kidnapping for
the purposes of robbery and conspiracy to kidnap for the purposes of robbery.
B. CALJIC No. 17.01
Ortiz argues because there was one count of kidnapping for the purposes of
robbery and one count of conspiracy to kidnap for the purposes of robbery but multiple
acts that could support such charges, the court was required to instruct sua sponte in the
terms of CALJIC No. 17.01 that the jury was required to unanimously agree on the acts
supporting any verdict of guilty.

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In criminal cases the jury's verdict must be unanimous. When, therefore, the
evidence suggests more than one discrete crime, the prosecution must elect between those
crimes or the jury must be instructed it may return a verdict of guilty only if there is
unanimous agreement the defendant is guilty of the same crime. Conversely, when the
evidence suggests only a single discrete crime, no unanimity instruction is required.
(People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Sanchez (2001) 94 Cal.App.4th
622, 631.)
No unanimity instruction is required when the crime is a continuing one, i.e.,
while the crime may involve the doing of individual acts, the conduct is essentially
indivisible in a real or evidentiary sense. (People v. Riel (2000) 22 Cal.4th 1153, 1199;
People v. Sanchez, supra, 94 Cal.App.4th at p. 631.) "[N]o unanimity instruction is
required when the acts alleged are so closely connected as to form part of one continuing
transaction or course of criminal conduct. 'The "continuous conduct" rule applies when
the defendant offers essentially the same defense to each of the acts, and there is no
reasonable basis for the jury to distinguish between them.' [Citations.]" (People v.
Dieguez (2001) 89 Cal.App.4th 266, 275.)
As noted above, the prosecution made clear to the jury in both opening statement
and argument that the conspiracy and kidnapping for the purposes of robbery charges
referred only to the movement of Estey from her home to the point she was finally
released. This was a sufficient election such that the charges in counts 1 and 2 referred
only to the movement of Estey from her house to point of her release. (People v. Mayer
(2003) 108 Cal.App.4th 403, 418; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455;

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People v. Diaz (1987) 195 Cal.App.3d 1375, 1382-1383.) The acts involved in that
movement were so closely connected in time and intent they formed a single criminal
event and no unanimity instruction was required.
VI
BLAKELY ISSUES
Pursuant to our request the parties have briefed sentencing issues arising in this
case from the recent decision in Blakely, supra, 124 S.Ct. 2531. Both appellants received
the same sentences. Each was sentenced to three consecutive indeterminate life terms.
Another life term was stayed pursuant to section 654. A consecutive 32-year determinate
term was added to the firearm enhancements and the great taking enhancement. As to the
remaining four convictions for crimes punishable under the determinate sentencing law,
both appellants were sentenced to the aggravated terms. The determinate sentences on
the four counts were stayed pursuant to section 654.
Appellants argue the trial court's decisions that the indeterminate terms would be
served consecutively, to impose the aggravated terms on the convictions punishable
under the determinate sentencing law and to impose the upper term on the section
12022.5, subdivision (a), firearm use enhancement as to count 8 were discretionary
sentencing decisions based on factors not found true by the jury and, thus, pursuant to
Blakely, violated their right to trial by jury.
The attorney general has responded contending the appellants have waived their
rights to challenge the sentences on Blakely grounds since they did not raise the issue in
the trial court and that Blakely is not applicable to California's sentencing law.

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We will first conclude that the issues have not been waived, but that Blakely does
not apply to the trial court's decision to impose consecutive indeterminate terms. As to
the upper term sentences, which were imposed and then stayed under section 654, we will
conclude that Blakely applies to those sentences and that such sentences violated the
appellants' Sixth Amendment rights.
A. Waiver
Relying on People v. Scott (1994) 9 Cal.4th 331 (Scott) and United States v.
Cotton (2002) 535 U.S. 625, the Attorney General contends the appellants have waived
their rights to challenge the upper term sentences on appeal. We reject that contention.
The purpose of the waiver rule articulated in Scott is to allow the trial courts the
opportunity to correct errors in a timely fashion and to conserve judicial resources.
(Scott, supra, 9 Cal.4th at pp. 351, 353.)5
In this case it would have been futile for the appellants to have raised a Sixth
Amendment challenge to the court's sentencing decisions. Prior to Blakely California
courts and many federal courts held there was no right to a jury trial regarding
consecutive sentences. (People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231;
United States v. Harrison (8th Cir. 2003) 340 F.3d 497, 500; United States v. Lafayette
(D.C. Cir. 2003) 337 F.3d 1043, 1049-1050; United States v. Hernandez (7th Cir. 2003)
5 Recently the Second District Court of Appeal reviewed the Blakely issues,
including the issue of waiver and whether the Blakely decision applies to California's
determinate sentencing scheme. (People v. Juarez (2004) ___ Cal.App.4th ___ [2004
D.A.R. 13887, Nov. 16, 2004].) Although the opinion in Juarez is not final, we agree
with its analysis and its holdings on these issues.

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330 F.3d 964, 982; United States v. Davis (11th Cir. 2003) 329 F.3d 1250, 1254; United
States v. Lott (10th Cir. 2002) 310 F.3d 1231, 1242-1243; United States v. White (2nd
Cir. 2001) 240 F.3d 127, 136.) No published case in California held that a different rule
applied in connection with an upper term sentence.
We conclude there was no reasonable possibility that either appellant would have
prevailed on such claim at the time of sentencing in this case. Accordingly, there would
no saving of judicial resources, nor would the purposes of the waiver rule be advanced by
applying it in this case. (People v. Barnes (2004) 122 Cal.App.4th 858, 878-879.)
B. Consecutive Sentences
The trial court sentenced both appellants to three consecutive life terms. The court
cited the reasons listed in the probation report as the basis for consecutive sentences. The
probation report, in turn, recommended consecutive sentences because there were three
separate victims. The appellants argue that Blakely applies to the decision to impose
consecutive sentences because such decisions are based on the exercise of discretion, for
which reasons must be stated. (Cal. Rules of Court, rule 4.425 (CRC).)
Appellants mistakenly rely on section 669, which they contend creates a
presumption in favor of concurrent sentences. From such premise, they reason the trial
court's decision to depart from the presumed sentence amounts to an increase of the
appellants' sentences based on facts, which were not found by the jury.
The first flaw in the appellants' argument is that section 669 does not create a
presumption in favor of concurrent sentences. As explained by the court in People v.
Reeder (1984) 152 Cal.App.3d 900:

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"While there is a statutory presumption in favor of the middle term
as the sentence for the offense [citation], there is no comparable
statutory presumption in favor of concurrent rather than consecutive
sentences for multiple offenses except where consecutive sentencing
is statutorily required. The trial court is required to determine
whether a sentence shall be consecutive or concurrent but is not
required to presume in favor of concurrent sentencing." (Id. at p.
923.)
Another flaw in appellants' argument is that there is no statutory duty imposed on
trial courts to make findings of fact to support consecutive sentences. Section 669
provides that the court "shall direct whether the terms of imprisonment . . . shall run
concurrently or consecutively." The section does not require any factfinding. Section
1170, subdivision (c), provides that the court "shall state the reasons for its sentence
choice on the record." Even assuming this provision applies to the selection of
consecutive sentences (CRC, rule 4.406(b)(5)), the statement of reasons does not require
a separate finding of facts beyond those facts, which support the various convictions.
The statement of reasons is required in order to facilitate appellate review of the
sentencing choice for an abuse of discretion. (People v. Stewart (2001) 89
Cal.App.4th 1209, 1215.)
In this case the jury found both appellants guilty of separate kidnapping offenses
involving three different victims. The appellants were "entitled" to be separately
sentenced for each of the offenses. The trial court's discretionary decision to impose the
sentences consecutively did not run afoul of the new Sixth Amendment requirements
imposed by Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466.

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C. Imposition of Aggravated Terms
As we have noted, the trial court imposed the aggravated term as to counts 5
through 8 and to the section 12022.5, subdivision (a), firearm enhancement found true as
to count 8. The trial court stayed the sentences on counts 5 through 8 under section 654.
The probation report noted as factors in aggravation (1) that the crimes were cruel and
involved the threat of bodily harm, and (2) the crimes were carried out with planning and
sophistication. These were not findings made by the jury.
Although it is highly unlikely the appellants will ever be required to serve any
time in custody on the stayed sentences, we are presented with the question of whether
the selection of the upper terms for the determinate sentences violated the appellants'
rights to jury trial. Recognizing that our discussion is undoubtedly academic, we apply
our understanding of Blakely to these sentences.
In Blakely, supra, 124 S.Ct. 2531, the court held that "'[o]ther 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."'
(Id. at p. 2536.) The issue of whether Blakely precludes a trial court from making
findings on aggravating facts in support of an upper term sentence is currently under
review by the California Supreme Court. (People v. Towne, review granted July 14,
2004, S125677; People v. Black, review granted July 28, 2004, S126182.) Pending
resolution of this issue by the court we are required to apply our best judgment as to the
applicability of Blakely to upper term sentences.

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Under our determinate sentencing law, where statutes provide three possible
prison terms for a particular offense, the trial court cannot impose a sentence greater than
the middle term unless it finds, by a preponderance of the evidence, that the
circumstances in aggravation outweigh the circumstances in mitigation. (§ 1170, subd.
(b); CRC, rule 4.420(c), (d).) The respondent's position is that the imposition of an upper
term sentence under the determinate sentencing scheme is not the same as "the imposition
of a penalty beyond the standard range" and thus does not implicate Blakely. This is a
distinction without a difference. Undoubtedly an upper term is the "statutory maximum"
penalty in the sense that it is the highest sentence that a court can impose for any given
crime. The fact that the statute authorizes a possible upper term sentence does not
necessarily make the "maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant," which is the relevant
standard for purposes of applying Blakely. (Blakely, supra, 124 S.Ct. at p.2537; see
Apprendi v. New Jersey, supra, 530 U.S. 466, 491-497; Ring v. Arizona (2002) 536 U.S.
584, 592-593.)
The majority in Blakely explained that when the judge's authority to impose a
higher sentence depends on the finding of one or more additional facts, "it remains the
case that the jury's verdict alone does not authorize the sentence," as required to comply
with constitutional principles. (Blakely, supra, 124 S.Ct. at pp. 2538.) The same is true
here. The maximum penalty the trial court could impose for counts 5 through 8 was the
middle term, unless it found facts in addition to those implicit in the jury's verdict. Thus,
the principles of Blakely necessarily apply to the trial court's decision to impose the upper

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terms for those offenses. The remaining question then is whether the trial court could
properly rely on the cited factors in support of its sentencing decision.
As previously noted, neither of the two factors relied on by the trial court to
support the upper term selection was based on the elements of the crimes or the findings
by the jury. Applying the principle of Blakely, the constitution requires a jury trial on any
fact that "the law makes essential to the punishment" other than the fact of a defendant's
prior conviction. (Blakely, supra, 124 S.Ct. at pp. 2537, 2540.) Applying those standards
to the present case, it is clear that there was no jury finding identified by the court that
could support the imposition of upper term sentences. Accordingly, we find the upper
term sentences imposed on counts 5 through 8 violated the appellants' rights to jury trial
as defined by Blakely.
DISPOSITION
The sentences on counts 5 through 8 are reversed. The case is remanded to the
trial court for resentencing in accordance with the principles expressed in this opinion. In
all other respects the judgments are affirmed.
HUFFMAN, J.
I CONCUR:
AARON, J.

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BENKE, J., concurring and dissenting.
I concur in the majority opinion except as to the remand for resentencing of counts
5 through 8.
The trial court applied the upper terms on counts 5 through 8 because (1) the
crimes were cruel and involved the threat of bodily harm and because (2) the crimes were
carried out with planning and sophistication. My colleagues conclude Blakely v.
Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely) requires these aggravating
factors must be found by a jury. I disagree.
Once the jury finds a defendant guilty of a substantive crime, all of the elements of
the crime, the facts upon which the jury verdict depends, have been found true. The Fifth
and Sixth Amendments have been satisfied. Thereafter, traditional factors concerning the
defendant and the nature of the crime(s) may be used to impose a sentence up to the
statutory maximum without implicating the right to jury. (Harris v. United States (2002)
536 U.S. 545, 565-566; Blakely v. Washington, supra, 542 U.S. _____; also see People v.
Wagener (2004) 123 Cal.App.4th 424, 430-432 (Wagener).) The sophistication, cruelty
and threatening nature of the crimes in this case easily pass constitutional muster as
traditional sentencing factors.
Acknowledging that the upper term is the statutory maximum, my colleagues
conclude California's middle term is the upper term for Blakely purposes because
additional facts are needed to reach the upper term. They incorrectly assume the middle
term is the mandatory statutory term in California and some required, intellectual "trial
process" is necessary to reach the upper term. I disagree. The middle term is one of

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three completely independent discretionary terms available to a trial judge. As is noted in
Wagener, the legislative history of our middle term, case law and the language of our
Penal Code statutes and Rules of Court support this conclusion.
Because there is a basis upon which to declare our statutes constitutional, there is
no reason to lower the sentences here. If the interpretation offered by the majority in
Wagener ultimately proves to be incorrect, appellant and others so situated may still
obtain through the writ process the relief granted here by my colleagues. If it is found
that Blakely does not rule our tripartite sentencing laws unconstitutional, my colleagues
have unnecessarily lowered the sentences for the crimes here. If this is the case, then
here, as in other cases, an unwarranted window has opened. Sentences will be reduced
that need not be. Moreover, some but not all appellants and defendants will receive
reduced sentences. With all due respect, I do not consider such systemic problems
academic.
I would affirm the judgment without a remand for resentencing pointing out to
appellants that the relief they seek may be premature.
BENKE, Acting P. J.

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