Filed 11/18/13 P. v. Howard CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B242518
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA387832)
v.
SEAN D. HOWARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Monica Bachner, Judge. Affirmed.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
A jury convicted defendant Sean Deondre Howard of three counts of kidnapping
to commit robbery (Pen. Code, § 209, subd. (b)(1))1 (counts 1-3), one count of second
degree robbery (§ 211) (count 4), and two counts of attempted second degree robbery
(§§ 664/211) (counts 5, 6). The trial court found that defendant had suffered two prior
serious felony convictions (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)), and that he had served three prior prison terms (§ 667.5, subd. (b)).
The trial court sentenced defendant to state prison for a total term of 105 years to
life. The sentence consisted of consecutive 25-year-to-life terms, and two 5-year section
667, subdivision (a)(1) enhancements on each of counts 1through 3.
Defendant appeals on the grounds that: (1) the trial court’s exclusion of the 911
recording was legally erroneous and resulted in the denial of his constitutional rights to
present a defense and to confront witnesses; (2) the trial court’s denial of the new trial
motion resulted in a miscarriage of justice and a denial of due process; (3) there was
insufficient evidence of his prior federal conviction for armed bank robbery; (4) the
$15,000 restitution fine was arbitrary and excessive and violated section 1204.4 and the
Eighth Amendment.
FACTS
Prosecution Evidence
On August 14, 2011, at approximately 9:00 p.m., Kiara M., who was 14 years old
at the time of trial, was waiting at a bus stop at Crenshaw Boulevard and Martin Luther
King Boulevard. Kiara was with her sister Kimberly and Abel Espinoza, who at the time
was a “stepbrother” to the girls. Some young African-American men approached them
and tried to start trouble with Abel. They also taunted Kiara about her figure. Another
man seated on the bench, later identified as defendant, spoke up and told the harassing
persons to calm down. Kiara, Kimberly, and Abel began to walk away from the bus stop.
Defendant had a car parked nearby and he offered to take them home. Defendant opened
1 All further references to statutes are to the Penal Code unless stated otherwise.
2
up the rear driver’s side door, near to which Kiara was standing. One of the harassing
men pushed her in the car, and it seemed the man wanted to get in the car also. Kiara was
frightened. Defendant told him not to get in. Abel then got in the front passenger seat of
the car and Kimberly got in the rear passenger seat behind him. Abel gave defendant the
address where they lived.
Defendant got in the car and proceeded to drive around for 40 to 45 minutes.
Music was playing, and Kiara liked the music. Defendant asked Abel to buy him a pack
of cigarettes, and Abel agreed. Defendant stopped at a liquor store, and Kiara recalled
that he and Abel went in and came out again after 10 minutes with cigarettes and liquor.
Defendant started driving and asked Kiara and the others again where they lived. Abel
told him. Kiara believed something was wrong and began to become frightened.
Defendant kept telling the young people that they were safe.
After approximately 30 minutes, defendant stopped the car in a dark residential
area. Defendant told the others to give him “all the stuff” that they had or he was going
to shoot them. Kiara believed defendant had a gun. She had seen him grab a sweater as
if there were something wrapped inside it and place it close to his lap when he returned to
the car from the liquor store. The sweater had been at Kiara’s feet on the rear floor of the
car. Defendant checked Abel’s pockets to see if Abel had anything. Defendant said Abel
would not want to get shot just for a couple of dollars. Defendant used his right hand to
check while he held the sweater with his left hand. Defendant took Abel’s money and
cell phone. The girls told defendant they had nothing. Kiara was scared. Defendant told
them not to look at him. Kiara wanted to get out of the car. When Kiara removed her
seat belt, defendant said, “Yeah, try to slide out and I’m going to end up shooting you.”
When defendant was finished with Abel, he drove around for approximately 30
minutes. He then took his passengers to a location across from a McDonald’s restaurant,
where he told Kiara and Kimberly to get out. Everyone was quiet, and defendant still had
the sweater in his lap. It was still dark outside. The girls got out of the car and went to
the restaurant. Abel stayed behind. The girls could no longer see defendant’s car
because he was in a side road. The girls stayed in a corner of the restaurant and saw Abel
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reappear after approximately 10 minutes. Abel was no longer wearing his shirt, which
was bloody and torn, and he was bleeding from the mouth. Abel walked up to the drive-
through window and asked someone to call the police. The three then began walking
away, and Kiara did not know if the police arrived. As they walked along the street, the
three young people found police approximately two blocks away “with someone else’s
case.” They told the police what had happened.
On cross-examination, Kiara stated that she told the police everything that she had
stated in her trial testimony, and she denied giving a different account. When shown a
transcript of the preliminary hearing, she denied that she had said the young men
harassing her had called her “vaca.” She did not remember saying, or she denied saying,
other things in her testimony that were read to her from the transcript. She testified on
cross-examination that she and the others just happened to walk away from the bus stop
in the same direction as defendant, and he was saying “Oh, it’s cool. It’s cool. Those
crazy people.” She could not remember how defendant asked them to enter his car. She
denied that she told Abel or the people in the restaurant not to call the police.
Kimberly was 16 at the time of trial. She recalled that defendant came over to
them while 10 to 15 Black boys were harassing them, and defendant told them he could
help them. He said he could give them a ride home. Since they were scared, they trusted
him and went with him to his car. She remembered there was a police car nearby, but
none of them asked the police for help. Defendant’s car doors were open, and he told
them to get in. No one gave him the address at that time. One man who had been in the
harassing group pushed Kiara into the car and then got in as well. Defendant, who was
sitting in the driver’s seat, told the man to get out, and he did so. Defendant told them to
relax and that everything would be all right. Kimberly was scared because of the men at
the bus stop, but she felt good because she thought defendant would help them. When
defendant asked for their address, Abel gave him an approximate location. They stopped
at a liquor store after 20 or 25 minutes. When defendant came back, he said he would
take them home. They next stopped in a dark residential area for 30 minutes to an hour.
That is when defendant changed and told them to give him their stuff. He reached down
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in the back seat and slowly picked up a jacket and put it on his lap. It was supposedly a
gun. He said to give him everything or he would shoot them. Abel had his hands up
while defendant checked him.
Kimberly removed her seat belt and defendant said he would blow her brains out if
she got out. Defendant then drove them near the McDonald’s restaurant and they got out.
It was about half an hour before Abel appeared at the restaurant. According to Kimberly,
all three of them told the people at McDonald’s to call the police. She said they waited
for 10 minutes and then left when no police showed up. They went to a car wash because
there were police there. Kimberly was certain that she did not tell the McDonald’s
employee not to call the police. Kimberly believed they were in defendant’s car for two
to three hours. On cross-examination, Kimberly confirmed each fact that she had related
to either Officer Gan or Officer Slavinskiy, as recited to her by defense counsel.
Abel recalled that defendant approached them and told them “Don’t worry” when
the group of men was hassling him and his stepsisters. Defendant led them to his car. A
patrol car approached, but defendant did not act nervous, and it appeared they could trust
him. Abel said he got in the car only because Kiara had been pushed inside; he did not
do so “willingly.” Abel denied they listened to music in the car. Abel told defendant that
they lived at Arlington Avenue and Martin Luther King Boulevard. When defendant
began to drive in the opposite direction, Abel told him it was the other way. Defendant
asked Abel “just to do him a favor” and buy him some cigarettes. As Abel waited to pay
for his purchases, defendant said he needed to use the restroom, and he went toward it.
Apparently, there was also an exit there. When Abel paid and walked out, he saw
defendant jogging to the car. Defendant seemed surprised to see Abel. Defendant got in
the car, and Abel did also. Abel did not feel he could pull Kiara and Kimberly out of the
car right then, but he was feeling nervous.
Defendant drove them to a neighborhood of dark, small streets. Defendant was
laughing and “acting like a nice person,” and Abel felt confused. Defendant kept driving
around the same streets and Abel kept asking him if he was going to drive them home.
Defendant stopped the car, and he picked up a jacket from the back and put it in front
5
between Abel and him. Defendant pretended he had a gun. Defendant pointed it at Abel
and Abel understood that they should give defendant all of their money. Abel had $240
in $20 bills in his right pocket, and defendant pulled it out. He took Abel’s phone from
his left front pocket.
After taking Abel’s belongings and cash, defendant drove off, keeping his hand in
the same position. Abel was afraid and did not feel he could leave. Defendant was still
asking where to drop them off. They told him “someplace close to Crenshaw.” When
defendant stopped the car, he told them to get out. Abel told Kiara and Kimberly to get
out of the car, but he stayed behind. Abel asked defendant to give him some money back.
By that time, Abel was angry.
Defendant seemed nervous because Abel was not getting out of the car. He began
to hand Abel a $20 bill, and Abel grabbed and pulled defendant’s arm and hit him with
his elbow. Abel started hitting defendant, and defendant tried to push him out of the car.
They began fighting, and defendant started to drive. Abel closed the door and leaned
against it and began kicking defendant in the face. Defendant began driving recklessly.
Abel grabbed defendant by the neck and pressed on his neck. It seemed that defendant
could not breathe, and he dropped Abel’s money and told him to take it. Abel continued
to put pressure on defendant’s neck, and defendant bit Abel on the inside left forearm.
Abel became angry and bit off part of defendant’s right ear.
Defendant pulled into a parking lot and told Abel, “This is my neighborhood.”
Abel was afraid that there might be people whom defendant knew there, so he jumped out
of the moving car. He ran back to where they had dropped off the girls. He had neither
his phone nor his money. He saw the girls, and after finding out that they were okay, he
went to the drive-through window and asked the manager to call 911. Because the
employees acted as if they did not know what to do, Abel began walking toward some
police lights he saw. He asked the police for help. Abel gave a description of defendant
and his injury and, for the most part, told them the account to which he had testified. The
next morning, police showed Abel a photographic lineup (six-pack). Abel circled
defendant’s photograph.
6
Abel sustained a bite injury and a split lip, as well as some scratches from jumping
from the car. Abel’s phone was returned, but he never received his money back.
At approximately 9:45 p.m., Officer Bronislav Slavinskiy of the Los Angeles
Police Department responded to an incident unrelated to defendant’s case. He saw Kiara,
Kimberly, and Abel approach, and they looked scared. They described a suspect who
was a male Black, tall, lean, and missing a piece of his right ear. Two other officers
approached, one of whom was Officer Robert Smith.
Officer Smith testified that he saw two distraught females running towards him
and asking for help. A Hispanic male joined them shortly thereafter. He recognized
them from having seen them earlier at the bus stop at “Crenshaw and King” at
approximately 8:37 p.m. He and his partner had gone there after receiving a call that
there was an aggressive group, possibly with a gun, harassing people at the bus stop. As
he approached the stop, several people began to walk away, and Officer Smith wished to
engage them in a consensual encounter. Among them were Kiara and Kimberly, who
were walking with two male Blacks and a male Hispanic to a vehicle. Officer Smith did
not see anyone simulate a gun. He knew there were a lot of narcotics transactions and
robberies at this bus stop and thought it unusual to see three Hispanics and two male
Blacks together. He queried the license plate number of the vehicle on the mobile data
computer and saw that it was registered and not stolen. He therefore abandoned the
encounter and went to help officers at the bus stop.
Officer Smith learned that the car was registered to Elvina Mosley with an address
on Marie Avenue in Los Angeles. He gave Officer Slavinskiy the license plate number,
make, and model of the vehicle the suspect was driving. This information was broadcast.
Officer Erik Mejia went to Mosley’s apartment early the following day. Mosley allowed
them to enter and search for the suspect, but he was not there. As they left, defendant
rounded the corner, and they detained him. He had a bandaged ear, and he told them he
was Sean Howard. Because defendant began to complain that he had asthma and heart
trouble, the officers called an ambulance. Officer Mejia rode in the back of the
ambulance and heard defendant say he damaged his ear in a fight. Officer Slavinskiy put
7
together a six-pack containing defendant’s photograph and showed it to Abel. Abel
identified defendant. Officer Slavinskiy later conducted an inventory search of the
vehicle defendant had driven. Abel’s cell phone was found in the center console, and one
$20 bill was found in the back of the car. The cover to Abel’s cell phone was
subsequently found in defendant’s pocket.
Officer Slavinkskiy’s account of what the three victims told him differed from
their testimony. The officer stated that they told the suspect they did not need a ride, and
he simulated a gun and told them to go to his car. A second suspect opened all the car
doors and told them to get in the car. Another suspect pushed one of them in the car.
They drove through the alley behind the McDonald’s restaurant and it was there that the
suspect demanded their property. They did not say that defendant intervened when they
were being harassed.
Defense Evidence
Defendant presented no evidence on his behalf.
DISCUSSION
I. Exclusion of Recorded 911 Call
A. Defendant’s Argument
Defendant claims that the trial court erred and violated his constitutional rights to
present a defense and confront witnesses against him by excluding as hearsay the tape
recording of an anonymous 911 call. He asserts that, had the victims been effectively
impeached with the evidence that they did not want the incident reported and then lied
about that, a jury may not have believed their testimony that they were victims.
Defendant asserts that the result of the trial likely would have been different.
B. Transcript of Call
The recorded 911 call was transcribed as follows:
“Caller: Um, hi. I’m calling from McDonald’s right here on 43rd and Crenshaw
and um, there seems to be some fighting going on outside. And there’s this, some guy
has some bleeding on his face and he asked if we could call the police. I think he was
being jumped.
8
“Operator: [Inaudible] still fighting?
“Caller: Well, I think he’s like running from them but yeah.
“Operator: [Inaudible] Paramedic?
“Caller: Um, no, no it’s not that, I don’t think it’s that bad.
“Operator: Is he still there, the guy who left?
“Caller: Yeah, he just walked outside ’cuz he told me to call the police. And then
right now he just said don’t call them. So I don’t know, I’m not sure.
“Operator: Don’t call them?
“Caller: Yeah. He told me to call the police then he told me don’t call them
anymore. Well he’s with some girls and the girls said not to call them. But he came
begging, he came begging for us to call the police.
“Operator: Somebody beat him up?
“Caller: Yeah, I believe so.
“Operator: Okay, thank you.
“Caller: Alright [sic], thank you.”
C. Proceedings Below
Trial began on December 6, 2011, and defense counsel received the CD of the 911
call on that day. Prior to the testimony of the People’s last witness, on December 14,
2011, defense counsel requested an Evidence Code section 402 hearing on the 911 call
made by an anonymous caller “during the course of the emergency.” The trial court
requested a transcript and case law supporting the admission of the recording.
The court listened to the 911 recording after reading the transcript counsel had
provided. At argument the following day, counsel contended that the recording was
admissible as a spontaneous statement under Evidence Code section 1240.2 The
2 Evidence Code section 1240 provides: “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.”
9
statements on the recording were made spontaneously while the declarant was under the
stress of the excitement caused by “such perception.” Counsel added that it related to an
ongoing emergency. Counsel also offered the 911 call under Evidence Code section
12413 as a contemporaneous statement that was explaining the conduct of the declarant in
calling 911. Defense counsel agreed with the trial court that a hearsay exception had to
apply to the recording. Counsel added, however, that even if no hearsay exception
applied, under Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers), the evidence
should be admitted in order to comport with due process as long as it was trustworthy.
The prosecutor argued that, for the exception to the hearsay rule under Evidence
Code section 1240 to apply, there had to be a reaction to some kind of exciting event
rather than mere processing of information. The call in this case reflected the processing
of information. The caller was not the victim and did not witness someone being beaten.
As for the contemporaneous statement exception to the hearsay rule, the prosecutor stated
that the caller hung up and then made a second call. This again appeared to be more
similar to a processing of information than an excited utterance.
In making its ruling, the trial court stated, “It does not appear to the court that the
statement is a spontaneous statement.” The court noted that it had listened to the
recording along with the parties. It did not appear to the court to meet the elements of a
spontaneous statement. “Listening to the tape, the words on the tape, it doesn’t appear to
be excited.” The recording also failed to meet the exception of a contemporaneous
statement. The caller was not explaining conduct while the person is engaged in the
conduct. The caller was narrating something that happened before.
3 Evidence Code section 1241 provides: “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Is offered to explain, qualify, or
make understandable conduct of the declarant; and [¶] (b) Was made while the declarant
was engaged in such conduct.”
10
D. Relevant Authority
Inadmissible hearsay evidence is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is offered to prove the truth of
the matter stated.” (Evid. Code, § 1200, subd. (a).) Subject to certain recognized
exceptions, hearsay evidence is inadmissible at trial. (Evid. Code, § 1200, subd. (b).)
Trial courts exercise broad discretion in determining compliance with foundational
requirements of exceptions to the hearsay rule. (People v. Hawthorne (1992) 4 Cal.4th
43, 57-58.)
E. No Abuse of Discretion
To be admissible under the spontaneous declaration exception to the hearsay rule,
“‘(1) there must be some occurrence startling enough to produce . . . nervous excitement
and render the utterance spontaneous and unreflecting; (2) the utterance must have been
before there has been time to contrive and misrepresent, i.e., while the nervous
excitement may be supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance of the occurrence
preceding it.’” (People v. Poggi (1988) 45 Cal.3d 306, 318.) “‘“Neither lapse of time
between the event and the declarations nor the fact that the declarations were elicited by
questioning deprives the statements of spontaneity if it nevertheless appears that they
were made under the stress of excitement and while the [declarant’s] reflective powers
were still in abeyance.”’” (People v. Vines (2011) 51 Cal.4th 830, 880.)
A trial court’s finding as to whether a statement satisfies the requirements of the
spontaneous declaration exception will not be disturbed unless the facts on which the trial
court relied are not supported by a preponderance of the evidence. (People v. Poggi,
supra, 45 Cal.3d at p. 319.) “‘“[E]ach fact pattern must be considered on its own
merits.”’” (People v. Vines, supra, 51 Cal.4th at p. 880.) “The discretion of the trial
court is at its broadest when it determines whether the nervous excitement still dominated
and the reflective powers were still in abeyance.” (Rufo v. Simpson (2001) 86
Cal.App.4th 573, 590-591; People v. Poggi, supra, 45 Cal.3d at pp. 318-319.)
11
We conclude the trial court did not abuse its discretion when it determined that the
911 call was not admissible under the hearsay exception of Evidence Code section 1240.
The cold record of the call does not reflect any nervous excitement on the part of the
caller. The caller stated that paramedics were not needed because he did not think Abel’s
injuries were “that bad.” Moreover, the statements were not spontaneous and
unreflecting, since the caller was only making the call because he was asked to do so, and
he was obviously reflecting on why the male had asked him to call and then told him not
to call. There was no “stress of excitement” evident in the call.4 (People v. Washington
(1969) 71 Cal.2d 1170, 1176.) Moreover, although not always conclusive, the fact that
much of what the declarant said was in response to questions from the Operator and was
not spontaneous argues against admissibility in this case where there was no urgency to
the call. (See People v. Poggi, supra, 45 Cal. 3d at p. 319 [whether a statement was made
in response to a question is an important factor, though not dispositive, on “the issue of
spontaneity”]; People v. Brown (2003) 31 Cal.4th 518, 541 [“‘When the statements in
question were made and whether they were delivered directly or in response to a question
are important factors to be considered on the issue of spontaneity. [Citations.]’”)
With respect to Evidence Code section 1241, defendant argues in his reply brief
that the caller’s statements were offered to explain his conduct, i.e., his reason for calling
911. Also, they were made while the caller was perceiving the victim’s injuries and
responding to his request to report and then not report the situation to the police.
According to defendant, the trial court abused its discretion in finding the statement
inadmissible because the declarant did not testify to his observations of the victim’s
injuries and statements, but Evidence Code section 1241 does not require that the
declarant testify.
The trial court’s ruling did not focus on the lack of testimony by the declarant.
The court stated that the declarant was not explaining conduct while the person is
4 Defense counsel did not arrange for this court to receive the CD of the 911 call.
This court’s efforts to obtain the CD have proved fruitless.
12
engaged in the conduct but rather narrating something that happened before. In any
event, we review the trial court’s ruling, not its rationale. (People v. Koontz (2002) 27
Cal.4th 1041, 1075, fn. 4.) In People v. Hines (1997) 15 Cal. 4th 997, 1034-1037, for
example, the trial court excluded as hearsay a statement by murder victim Donna Roberts
in a telephone call to a friend during the time that the defendant, Hines, was in her home.
In the excluded statement, Roberts told her friend that defendant was present. The court
ruled that the statement was not admissible under Evidence Code section 1241 to explain
the conduct of Roberts, since her conduct was not in issue. Likewise in the instant case,
although it is true (as defendant asserts) that the caller may have been explaining his
reason for making the 911 call, the caller’s conduct was not at issue. Defendant himself
argues that it was the conduct of the girls and Abel that was at issue.
Defendant also argues that the exclusion of the 911 call was a denial of due
process and should have been admitted under Chambers, supra, 410 U.S. 284. In that
case, as a consequence of the state’s particular hearsay rule, the defendant was unable to
cross-examine a person who had previously confessed to the crime and then retracted his
confession, and he was unable to present certain crucial witnesses, to whom the other
person had also confessed his guilt. (Id. at pp. 294, 299.) Chambers stated that “where
constitutional rights directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the ends of justice.” (Id. at p.
302.) The Chambers court reversed the judgment, stating that under the facts and
circumstances of that case, the trial court’s rulings deprived Chambers of a fair trial. (Id.
at p. 303.) The court emphasized, however, that it was establishing no new principles of
constitutional law nor diminishing the respect traditionally accorded to the States in the
establishment and implementation of rules and procedures in criminal trials. (Id. at p.
302-303.)
According to defendant, the principal issue at trial was the nature and motive
behind defendant’s actions. He argues that, as in Chambers, the hearsay evidence (the
911 call) was crucial to his defense that he did not kidnap the three victims but was
himself the victim of an assault. He maintains that the caller’s statements that Kimberly
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and Kiara did not want to report and that Abel changed his mind about reporting were
critical to this defense. He claims that the call raises doubt about the victims’ veracity
regarding having been kidnapped and robbed and their status as victims. We disagree.
The 911 call did not fall within a valid hearsay exception, and it was not, unlike the
evidence in Chambers, crucial to the defense. Seen realistically, the declarant’s
statement that Abel begged him to call 911 and then told him not to call because the girls
told him not to call does little to establish defendant’s innocence. Abel himself testified
that he asked the McDonald’s employees to call, but they seemed confused, so he went
toward some police car lights that he saw nearby. Whether or not the girls told him not to
call would not have been interpreted by a reasonable jury as confirmation that their entire
account of the kidnapping, robbery, and attempted robberies was a lie.
Defendant additionally argues that the erroneous exclusion of the 911 call violated
his right to confront and cross-examine witnesses, guaranteed by the Sixth Amendment to
the federal Constitution. With respect to his confrontation clause argument, defendant
focuses on Kiara’s insistence that she did not tell Abel not to call the police. He claims
that impeachment with the 911 recording would have exposed not only her lies on the
stand but also her motive for not wanting to report the incident, i.e., the fact that she was
not a victim of any crime at all. Defendant argues that the error was not harmless
because, had these victims been effectively impeached with evidence that they did not
want the incident reported and lied about that, a jury may not have believed any of their
testimony concerning their “victimhood” and reached a different verdict.
We observe that defendant did not object on this ground at trial, and therefore has
not preserved the issue. (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v.
Edwards (1991) 54 Cal.3d 787, 835.) In any event, we do not believe the trial court
violated the confrontation clause when it excluded the 911 call. Defense counsel had
ample opportunity to cross examine the three victims as well as the police officers.
Focusing on Kiara’s testimony, as does defendant, the record shows that defense counsel
pointed out to Kiara several instances where her preliminary hearing testimony
contradicted her trial testimony, and Kiara denied that the transcripts accurately reported
14
her words, or she stated she did not remember saying them. Kiara denied that she told
Abel not to call the police or that she told the McDonald’s people not to. She
acknowledged that she knew the police had been called from McDonald’s and began to
explain that she and the others left “ ’cause we saw. . .” but defense counsel interrupted
her answer by asking, “Why did you walk two blocks if you knew 911 had been called
and the police were on their way?” Kiara merely answered, “I don’t know.”
Furthermore, defense counsel elicited from Officer Slavinskiy that he was not told
many of the facts contained in the victims’ testimony, or he was told different facts. For
example, he testified that the victims said they were forced at simulated gunpoint to
defendant’s car, and that they said they were robbed in the alley behind McDonald’s
shortly after entering the car. They never said that they were harassed at the bus stop or
that defendant came to their aid. Clearly, the lack of impeachment with the hearsay
statements of a McDonald’s employee regarding one small detail of the story did not
result in a denial of confrontation or, if so, the exclusion of the 911 call relating this
information was harmless error under any standard. (Chapman v. California (1967) 386
U.S. 18 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818,
836 [reasonable probability the error did not affect the outcome].) “[U]nless the
defendant can show that the prohibited cross-examination would have produced ‘a
significantly different impression of [the witnesses’] credibility’ [citation], the trial
court’s exercise of its discretion in this regard does not violate the Sixth Amendment.”
(People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another point in People v.
Doolin (2009) 45 Cal.4th 390, 421, quoting Delaware v. Van Arsdall (1986) 475 U.S.
673, 680.) Given the extensive impeachment of the victim witnesses in this case, any
error was harmless.
II. Denial of New Trial Motion
A. Defendant’s Argument
Defendant contends the trial court abused its discretion by denying defendant’s
new trial motion, which was based on newly discovered evidence. This resulted in the
denial of his due process right to a fair trial. He asserts that an independent review of the
15
evidence in support of his motion should compel this court to reverse his convictions and
order a new trial at which the 911 call and the caller’s testimony are admitted into
evidence.
B. Relevant Authority
Section 1181, subdivision 8 provides that a trial court may grant a new trial
“[w]hen new evidence is discovered material to the defendant, and which he could not,
with reasonable diligence, have discovered and produced at the trial. When a motion for
a new trial is made upon the ground of newly discovered evidence, the defendant must
produce at the hearing, in support thereof, the affidavits of the witnesses by whom such
evidence is expected to be given. . . .” The trial court’s decision to deny a new trial
motion based on newly discovered evidence is reviewed for an abuse of discretion.
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1251.)
In ruling on a motion for new trial based on newly discovered evidence, the trial
court considers the following factors: “‘“1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That
it be such as to render a different result probable on a retrial of the cause; 4. That the
party could not with reasonable diligence have discovered and produced it at the trial; and
5. That these facts be shown by the best evidence of which the case admits.”’
[Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328; see also People v. Clauson
(1969) 275 Cal.App.2d 699, 706 [“newly discovered evidence must not be merely
cumulative or impeaching; it must be such as to render a different verdict reasonably
probable”]; People v. Huskins (1966) 245 Cal.App.2d 859, 862 [“[o]rdinarily, evidence
which merely impeaches a witness is not significant enough to make a different result
probable”].)
C. Proceedings Below
Shortly before the sentencing hearing, defense counsel filed a motion for new trial,
arguing that the court’s ruling on the 911 call effectively deprived defendant of the ability
to impeach the testimony of the witnesses in this case. The motion contained counsel’s
arguments, expressed during the Evidence Code section 402 hearing, regarding
16
admissibility of the contents of the 911 call. Counsel subsequently asked for a
continuance because her investigator had found the McDonald’s employee who made the
911 call, and counsel wished to serve him with a subpoena. She asked to amend her new
trial motion to include points and authorities related to the discovery of new evidence,
which she subsequently filed.
Counsel contended that the caller’s identity was newly discovered evidence
because the caller, Christian Miranda, was unknown at the time of trial but was now
known. The identity of the caller was not merely cumulative because there was no other
evidence at trial allowing defendant to impeach the victims about calling the police. A
different result was probable because defendant would be able to establish two defenses
(consent and lack of force or fear) and impeach the witnesses. Also, defendant could not
have discovered the identity of the 911 caller with reasonable diligence in time for trial.
At the motion hearing, Miranda identified his voice on the 911 call and testified
that he was working at the drive-through window when “a guy came up to the window,
and he told me that there was somebody that was trying to hit him, and he told me to call
the police, call the police. And he was with two girls. And I did. He just left after that.”
He later added that the two girls told him not to call 911. He also said that the guy “told
me to call 911, and then, he moved for a bit, and when he came back, he told me not to
call them anymore.” The man went walking down Crenshaw Boulevard toward Stocker
Street but came back within two minutes. He saw the man get angry with the girls and
say, “It was all your fault.” On cross-examination, Miranda said the man was bleeding
from his face. He initially was begging Miranda to call the police.
In denying the motion, the trial court stated: “[T]he evidence is not newly
discovered evidence. . . . The parties were aware of the 911 call. The question was the
identity of the 911 caller. And—if the testimony would be considered as newly
discovered, the parties did not use reasonable diligence. Now, I am not stating that the
lawyer for the defense was not a diligent lawyer. . . . What I’m saying is, or the ruling is
that defendant cannot demand a speedy trial knowing that there’s evidence that [he]
wants and then say, I found the evidence later; therefore, I acted diligently. . . . If the
17
defense wanted that evidence, [the] defense could have asked for a continuance, and the
court would have granted that continuance. It was within the first 60 days. . . . [T]he
case went to trial within 60 days. . . . And I don’t believe [a continuance] was asked
[for] during the trial either. So another option is that . . . if for some reason, this evidence
was discovered during the trial, counsel could have asked for a continuance to seek the
witness. That didn’t happen either. But fundamentally, when [the] defense demanded to
go to trial within 60 days, knowing the existence of this evidence, that does not fall
within the concept of newly discovered evidence and due diligence to find that evidence.
Finally, the evidence appears to be merely impeachment at best. In fact, the district
attorney argued that that evidence would have assisted the prosecution in this case; i.e.,
corroborating the injuries to the victim from a third party, corroborating the [male]
victim’s testimony . . . that he went down the street and came back. So in fact, although
some parts might be impeachment, some parts corroborate the People’s case. . . . Given
the evidence at trial, the introduction of the evidence [of the 911 call] would not render a
different result reasonably probable.”
D. No Abuse of Discretion
We agree with the trial court. The evidence was known to the defense for a
sufficient period of time, and if defendant had deemed it crucial to his defense, the trial
court would have heard his motion for a continuance and granted it. Most importantly,
the value of the evidence was merely to impeach the witnesses as to whether they told
Miranda not to call the police. Counsel emphasized this below, stating that “one of the
main reasons why that 911 call was crucial to the defense case was because it actually
impeached the credibility of some of the witnesses.” The call gives no indication as to
the victims’ reasons for cancelling the request. The witnesses testified that they saw
police car lights down the street and went to the policemen there to report what had
happened to them. And, as indicated in the previous section, the testimony of the victims
was amply impeached on this point and others. Given the fact that the other evidence
supported the victims’ claims, including the evidence found in the car used by defendant,
18
we do not believe Miranda’s testimony would have rendered a different result probable
on a retrial of defendant’s case.
Furthermore, as the People argued, Miranda’s testimony was arguably more
beneficial to the prosecution than to the defense in that Miranda described the victim as
bleeding from the face, saying he had been beaten up, and begging for Miranda to call the
police. Any argument that the victims did not want the police to come was flawed, since
in that case they would never have asked Miranda to call the police in the first place or
gone to the police down the street. These actions are not those of persons who want to
avoid the police because they consented to the kidnapping and made up a story about
being robbed.
We conclude the court did not abuse its discretion in denying defendant’s new trial
motion.
III. Prior Federal Conviction
A. Defendant’s Argument
Defendant contends that the judgment of conviction for violating 18 United States
Code section 2113 (U.S.C. section 2113) was not properly certified or authenticated.
Because the records custodian of the Federal Correctional Complex at Victorville,
California, did not herself examine and compare the photocopy of the judgment of United
States District Judge Harry L. Hupp with the original or even a certified copy of the
judgment, but merely attested to the correctness of the noncertified copies maintained by
the Victorville institution, the custodian’s certification does not meet the requirements of
section 1530. The prosecutor also failed to present additional secondary authenticating
evidence. Defendant asserts that the trial court’s finding of a prior strike based on
insufficient evidence violates due process.
B. Relevant Authority
To qualify as a strike under the Three Strikes law, a prior conviction must be a
serious felony, as defined in section 1192.7, subdivision (c), or a violent felony, as
defined in section 667.5, subdivision (c). The prosecution must prove the serious or
violent nature of the offense beyond a reasonable doubt, and may do so with court
19
documents prepared contemporaneously with the conviction by a public officer charged
with that duty, such as an abstract of judgment. (People v. Delgado (2008) 43 Cal.4th
1059, 1065-1066; People v. Miles (2008) 43 Cal.4th 1074, 1082 (Miles).) “However, if
the prior conviction was for an offense that can be committed in multiple ways, and the
record of the conviction does not disclose how the offense was committed, a court must
presume the conviction was for the least serious form of the offense. [Citations.] In such
a case, if the serious felony nature of the prior conviction depends upon the particular
conduct that gave rise to the conviction, the record is insufficient to establish that a
serious felony conviction occurred.” (Miles, at p. 1083.)
“On the other hand, the trier of fact may draw reasonable inferences from the
record presented. Absent rebuttal evidence, the trier of fact may presume that an official
government document, prepared contemporaneously as part of the judgment record and
describing the prior conviction, is truthful and accurate. Unless rebutted, such a
document, standing alone, is sufficient evidence of the facts it recites about the nature and
circumstances of the prior conviction.” (Miles, supra, 43 Cal.4th at p. 1083.)
“On review, we examine the record in the light most favorable to the judgment to
ascertain whether it is supported by substantial evidence. In other words, we determine
whether a rational trier of fact could have found that the prosecution sustained its burden
of proving the elements of the sentence enhancement beyond a reasonable doubt.”
(Miles, supra, 43 Cal.4th at p. 1083.)
C. Proceedings Below
John Helbling, a paralegal for the district attorney’s office, testified for the
prosecution at the trial on the prior convictions. He testified regarding People’s Exhibit
21, a 10-page document from the United States Department of Justice, Federal Bureau of
Prisons. The last page shows that the official custodian of records—the case
management coordinator—at the Federal Correctional Complex, Victorville, certified that
the attached records were true and correct copies of that institution’s records pertaining to
Sean D. Howard and consisting of a photograph, judgment and commitment order,
fingerprints, and a “PPPI.” The records were sworn to on October 20, 2011.
20
As Helbling testified, the documents showed a verdict of guilty of “conspiracy to
commit armed bank robbery, in violation of 18 USC 371, as charged in Count 1; armed
bank robbery, in violation of 18 USC 2113(a)(d), as [charged] in Count 2; use of a
firearm during a crime of violence, in violation of 18 USC 924(c), as charged in Count 3
of the First Superseding Indictment.”
The Judgment form also stated that full restitution had not been ordered in view of
the defendant’s lack of resources. Defendant was committed to the custody of the Bureau
of Prisons for a total term of 188 months. Additionally, Exhibit 21 included a Judgment
and Commitment Order Re: Violation of Supervised Release in the case of United States
of America v. Sean Deandre Howard, case No. CR 94-908-VBF-3, dated December 20,
2010, revoking defendant’s supervised release and committing him to the custody of the
Bureau of Prisons for a term of four months. A handwritten notation reflects that
defendant was delivered on February 1, 2011, to “VIM at Victorville.”
Defense counsel had no objection to Exhibit 21 pages 1 through 6, defendant’s
print cards, or booking photograph. Counsel did, however object to the abstract of
judgment because it was kept by the court system and there was no proper foundation
that it was a document certified by the prison system. The prosecutor responded that the
correctional case records analyst had certified that the attached documents, including the
abstract of judgment and the minute orders, were true and correct copies of the originals
she had in custody, so they were in fact certified copies of the originals. Counsel
responded that the certifications said that these were records of the documents that they
had in their institution—they were not certifying the documents themselves. The trial
court overruled the objections. Counsel further argued that, based on the records
provided, the court could not beyond a reasonable doubt determine if the conviction was
a strike because the court had no facts about the case. Counsel argued that the court was
left with making assumptions about whether there was personal use of a firearm as
opposed to a principal’s use of a firearm or an accomplice being armed.
The court ruled that Exhibit 21 actually showed an armed bank robbery. The
judgment and commitment order showed a conviction of conspiracy to commit armed
21
bank robbery and a separate count of armed bank robbery in violation of U.S.C. section
2113(a)(d). Even if this document were not admissible for some reason, the offenses
were also described in the public information data in the same Exhibit 21, and it showed
a violation of U.S.C. section 2113(a)(d). Therefore, the strike had been proved.
D. Evidence Sufficient
Defendant asserts that U.S.C. section 2113(a) consists of two offenses. One
requires the taking of bank property by force, violence or intimidation. The other sets
forth the offense of entering the bank with felonious or larcenous intent, which is a
nonserious felony in California. Defendant claims he was denied due process based on
insufficient evidence of the serious or violent nature of his prior bank robbery conviction
that would support the additional five-year and Three Strikes terms imposed. (§ 667,
subds. (a), (b)-(i).) Defendant argues that there is lacking any indication as to whether he
was found guilty as an accomplice or an aider and abettor of the use of a firearm, which
would indicate whether the more serious prong of subdivision (a) was violated. Hence,
defendant asserts, there was no proof of a serious felony beyond a reasonable doubt.
Defendant is correct in that the first paragraph of U.S.C. section 2113(a) describes
an offense that is a strike under California law, but the second paragraph does not.
(Miles, supra, 43 Cal.4th at pp. 1081-1082.) “Though there is no California convictable
offense of bank robbery, Penal Code section 1192.7, subdivision (c) lists a crime of this
name as a serious felony, a prior conviction for which may enhance the sentence for a
subsequent offense. ([§ 1192.7], subd. (c)(19).) For this purpose, Penal Code section
1192.7 defines ‘“bank robbery”’ as ‘to take or attempt to take, by force or violence, or by
intimidation from the person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control, management, or possession
of, any bank, credit union, or any savings and loan association.’ (Id., subd. (d).)” (Miles,
at p. 1081.) In comparison, U.S.C. section 2113(a)’s second paragraph requires mere
entry into a bank or other such institution with the intent to commit any felony affecting
that institution. (Miles, at pp. 1080-1081.) As a result, “evidence that the defendant
22
suffered a previous conviction under section 2113(a), standing alone, cannot establish
that the conviction was for a serious felony under California law.” (Miles, at p. 1082.)
In Miles, to prove that a prior conviction for a violation of U.S.C. section 2113(a)
qualified as a strike, the People introduced the form “Judgment and Probation/
Commitment Order,” signed by the federal judge. The form recited that the defendant
pleaded guilty to a “‘violation of 18 U.S.C. 2113(a)(d)(e), armed bank robbery and . . .
kidnapping, as charged in the First Count of the Indictment.’” (Miles, supra, 43 Cal.4th
at p. 1079.) The Miles court held that where there was substantial evidence of the
defendant’s federal bank robbery conviction under U.S.C. section 2113(a), but the
judgment also included another subdivision such as U.S.C. section 2113(d), or (e)
(kidnapping), the more reasonable inference was that the underlying offense involved the
force, violence, or intimidation required under the first paragraph of U.S.C. section
2113(a). U.S.C. section 2113(d) (of which defendant here also was found guilty in count
2) provides a greater punishment for any person who, “in committing, or in attempting to
commit, any offense defined in subsection[] (a) . . . assaults any person, or puts in
jeopardy the life of any person by the use of a dangerous weapon or device.”
Consequently there was a very strong inference the prior federal offense in Miles
qualified as a strike under California law. (Miles, at pp. 1088, 1092.)
In the instant case, the prosecution provided documentary evidence of more than
defendant’s conviction under U.S.C. section 2113(a). Rather, as in Miles, there was
reliable evidence that defendant committed an armed bank robbery under U.S.C. sections
2113(a) and 2113(d). Defendant was also convicted in count 3 of violating 18 United
States Code section 924(c) (count 3), which provided additional punishment for any
person who, “during and in relation to any crime of violence . . . uses or carries a
firearm.” Thus, the prosecution’s certified documentary evidence showed that defendant
committed federal bank robbery by either assaulting a person or putting a person’s life in
jeopardy by using a dangerous weapon (U.S.C. § 2113(d)), or by using a firearm in the
commission of the crime (18 U.S.C. § 924(c)). “Where, as here, the statutory provision
includes more than one form of offense, one may reasonably infer, absent contrary
23
indicia, that the additional prose [in the judgment] is not mere surplusage, but an attempt
to delineate which form was violated.” (Miles, supra, 43 Cal.4th at p. 1085.)
As Miles explained: “It is highly unlikely that one charged and convicted under
[U.S.C.] section 2113(a) only for entering a bank with felonious or larcenous intent,
without an attempted or actual taking of property by force and violence or intimidation,
would also be found, in the course of the offense, to have placed a victim’s life in
jeopardy by use of a dangerous weapon . . . . In the absence of any rebuttal evidence as
to the nature of the prior conviction, the trial court was entitled, prima facie, to draw the
more reasonable inference that it was for committing the California serious felony of
bank robbery.” (Miles, supra, 43 Cal.4th at p. 1088.)
With respect to defendant’s theories as to how the offense of which he was found
guilty could have been committed without force or violence or personal use of a gun, we
note that Miles stated that the mere theoretical possibility that a defendant might have
committed the armed bank robbery under U.S.C. section 2113(d) while merely entering
the bank with felonious or larcenous intent would not be sufficient to require the
California court to disregard the more reasonable, contrary inference—at least where
there was no rebuttal evidence. (Miles, supra, 43 Cal.4th at pp. 1088-1089, fn. 10.) As
the Miles decision stated, “One can perhaps conceive of a scenario in which violations of
sections 2113(d) and 2113(e) might attach to a charged violation of section 2113(a) that
did not involve an attempted or actual taking of property. For instance, such a charge and
conviction might theoretically occur if defendant had entered the bank brandishing a
weapon, was confronted by security guards before he could take or demand money or
property, then assaulted or killed someone, or seized and moved a hostage, while
attempting to escape. But, in the absence of rebuttal evidence, a trial court assessing a
prior conviction described as for ‘armed bank robbery’ was not required to parse such
remote possibilities. It could, as indicated, accept the more reasonable inference that the
conviction was for what California would deem the serious felony of bank robbery.”
(Miles, at pp. 1088-1089, fn. 10.)
24
As is in Miles, while presenting no affirmative defense, defendant merely asserts
the abstract possibility that defendant committed the robbery while an aider or abettor to
an armed principal or as a mere accomplice. These assertions are pure speculation in the
face of defendant’s U.S.C. section 2113(d) conviction for assault or jeopardizing the life
of any person by the use of a dangerous weapon, along with Judge Huff’s indication that
some amount of money was taken during the bank robbery. 5 Finally, we note that
nothing in the Miles opinion indicates that the kidnapping aspect of the federal conviction
was necessary for the underlying conviction to qualify as a serious felony under
California law.
We also conclude that the records presented were an admissible form of evidence
to prove a strike allegation. (§ 969b; Miles, supra, 43 Cal.3d at pp. 1077-1078; see also
People v. Prieto (2003) 30 Cal.4th 226, 258 [“‘prior convictions are normally proven by
the use of documentary evidence alone.’ [Citation.]”].) Here, the documents obtained by
the district attorney’s paralegal contained the certificate of records from the United States
Department of Justice, Federal Bureau of Prisons, which was signed by the custodian of
records. Among the documents was the “Judgment and Probation/Commitment Order”
by United States District Court Judge Harry L. Hupp, dated May 1, 1996. Section 969b
provides: “For the purpose of establishing prima facie evidence of the fact that a person
. . . has been convicted of an act . . . declared to be a crime by any act or law of the
United States, . . . copies of records of any . . . federal penitentiary in which such person
has been imprisoned, when such records . . . have been certified by the official custodian
of such records, may be introduced as such evidence.” Thus, the records certified by the
custodian of records at the Federal Correctional Complex, Victorville, where defendant
apparently served his sentence for the violation of his supervised release in the bank
robbery case, were admissible evidence. We also reject defendant’s assertion that
because the certification lists “JUDGMENT AND COMMITMENT ORDER” in the
5 The Judgment and Commitment Order state that, “Full restitution has not been
ordered in view of the defendant’s lack of resources and limited future earning ability.”
25
singular, the certification necessarily refers solely to the judgment and commitment order
for defendant’s 2010 incarceration for violation of supervised release.
Under the reasoning of Miles, we find the notations of “armed bank robbery” and
“use of a firearm during a crime of violence” on the judgment form, in the absence of any
rebuttal evidence, constitutes substantial evidence that the conviction in case No. CR-94-
908(A)-HLH qualified as a strike under the Three Strikes law.
IV. Restitution Fine
A. Defendant’s Argument
Defendant points out that the trial court’s $15,000 restitution fine exceeded the
$10,000 maximum permitted by section 1202.4, subdivision (b)(1). Defendant also
argues that there was no factual or rational basis for imposing a restitution fine exceeding
the statutory minimum in this case, and the fine must be considered arbitrary.
B. Relevant Authority
Section § 1202.4, subdivision (b)(1) provides that “If the person is convicted of a
felony, the [restitution] fine shall not be less than two hundred forty dollars ($240) . . .
and not more than ten thousand dollars ($10,000).” Section § 1202.45, subdivision (a)
provides for a parole revocation restitution fine “in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4.” (See People v. Blackburn (1999)72
Cal.App.4th 1520, 1534 [maximum restitution fine is $10,000 “‘regardless of the number
of victims or counts involved’”].) The court has wide discretion in determining the
amount of the fine. (People v. Urbano (2005) 128 Cal.App.4th 396, 406.)
C. Restitution Fine Must Be Reduced
As respondent concedes, the restitution and parole revocation fines of $15,000 are
excessive in that they exceed the $10,000 statutory maximum. Respondent disagrees
with defendant’s assertion that a restitution amount must be reduced to an amount
commensurate with the victims’ actual losses, which were only slightly higher than the
$200 statutory minimum in effect at the time the crime was committed. (Stats. 2011, ch.
45, § 1.)
26
We agree with respondent. Section 1202.4 subdivision (b)(1) provides that “[t]he
restitution fine shall be set at the discretion of the court and commensurate with the
seriousness of the offense.” In the instant case, the trial court indicated it wished to
impose the maximum amount as a restitution fine. We believe that the maximum fine of
$10,000 would not be arbitrary and excessive, nor would it violate the Eighth
Amendment.
Section 1202.4, subdivision (d) provides: “In setting the amount of the fine . . . in
excess of the minimum fine . . . the court shall consider any relevant factors, including,
but not limited to, the defendant’s inability to pay, the seriousness and gravity of the
offense and the circumstances of its commission, any economic gain derived by the
defendant as a result of the crime, the extent to which any other person suffered losses as
a result of the crime, and the number of victims involved in the crime. Those losses may
include pecuniary losses to the victim . . . as well as intangible losses, such as
psychological harm caused by the crime. . . . A defendant shall bear the burden of
demonstrating his or her inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required.”
“The touchstone of the constitutional inquiry under the Excessive Fines Clause is
the principle of proportionality: The amount of the forfeiture must bear some
relationship to the gravity of the offense that it is designed to punish.” (United States v.
Bajakajian (1998) 524 U.S. 321, 334; see also People v. Urbano, supra, 128 Cal.App.4th
at p. 406.) In United States v. Bajakajian, cited by defendant, a fine of $357,144 was
found disproportionate to the offense of failing to report exported currency because the
defendant’s culpability was minimal, the harm caused was minimal, and the maximum
sentence under the federal sentencing guidelines was six months and a $5,000 fine.
(United States v. Bajakajian, at pp. 338-339.)
In the instant case, defendant, in the guise of a Good Samaritan, kidnapped three
young persons, two of whom were minor females. He frightened them and threatened to
shoot them with a firearm, which they believed he had, and attempted to rob all three of
them. He succeeded in robbing Abel, taking his cell phone and cash. He drove them
27
around for a considerable amount of time, all the while pretending that he would take
them home, as the victims became increasingly frightened for their lives. In addition,
defendant was found to have suffered two prior serious or violent felony convictions, and
the probation report reflects a long criminal history (beginning in 1983), interrupted only
by periods of incarceration. In contrast to United States v. Bajakajian, defendant’s
culpability was not minimal. As the trial court stated in rejecting counsel’s argument for
concurrent sentencing, defendant acted as “a predator” who took the three victims away
from a place of relative safety—a public street with police officers nearby. We believe
that the trial court would not impose less than a $10,000 restitution fine, and we conclude
this amount would not be an abuse of discretion. We therefore reduce the amount of the
restitution fine to $10,000. (See People v. Blackburn, supra, 72 Cal.App.4th at p. 1534
[reducing excessive fine to statutory maximum].)
V. Omission in Abstract of Judgment
Respondent correctly points out that the abstract of judgment does not indicate in
the appropriate section that defendant was convicted under the Three Strikes law. We
will direct the superior court to amend the abstract accordingly.
DISPOSITION
The judgment is modified to reduce the restitution fine and parole revocation fine
to $10,000. In all other respects, the judgment is affirmed. The superior court is directed
to amend the abstract of judgment to reflect in item No. 8, by checking the appropriate
box, that defendant was sentenced pursuant to Penal Code, section 667, subdivisions (b-
(i) or Penal Code section 1170.12.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J. FERNS, J.*
________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
28