P. v. Romero CA6

Filed 6/14/13 P. v. Romero CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037094
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC789592)

v.

JEFFREY ANGEL ROMERO,

Defendant and Appellant.

The Santa Clara County District Attorney filed an information charging defendant
Jeffrey Angel Romero with two counts of second degree burglary (Pen. Code, §§ 211,
212.5, subd. (c)1 - counts one and three) and one count of felony imprisonment (§§ 236,
237 - count two). The information also alleged: (1) defendant personally used a firearm
within the meaning of section 12022.53, subdivision (b) when he committed the offenses
charged in counts one and three, and (2) he personally used a firearm within the meaning
of sections 12022.5, subdivision (a) and 1203.06 when he committed the offense charged
in count two. The jury found defendant guilty as to counts one and two, and not guilty as
to count three. The jury also found that the allegations of the firearm use enhancements
were true as to counts one and two. The trial court sentenced defendant to 18 years in
prison. On appeal, defendant contends: (1) the trial court erred when it admitted

1
All further statutory references are to the Penal Code unless otherwise stated.
 2

evidence of uncharged offenses, (2) the trial court abused its discretion in denying trial
counsel‟s request to read two articles on the unreliability of eyewitness identification
evidence, and (3) the trial court erred when it awarded no custody credits to defendant.
We reverse the judgment and remand the matter for resentencing.

I. Statement of Facts
A. The Prosecution’s Case
1. The San Jose Robbery - Counts One and Two
Parul Parikh worked as a cashier at a Valero gas station in San Jose. At
approximately 2:40 p.m. on June 8, 2007, she was talking to Michael Lima, a salesman,
when a man entered. The man, who was wearing a black jacket with a hood, asked about
some candy and Parikh directed him toward it. However, the man then came behind the
counter, asked for money, and gave Lima a black bag to give to Parikh for the money.
Parikh did not remember if the man was holding a gun. She took the money from the
cash register and put it in the bag. Before he left, the man told them to sit down and not
do anything. Both Parikh and Lima sat down on the ground. A few seconds later, the
manager of the car wash entered.
Parikh subsequently attended a lineup in Sonoma County, but she was unable to
identify anyone as the robber. She testified that she did not get a good look at the
robber‟s face and was unable to remember his race, hair color, height or whether he had
facial hair.
Officer Mark Efigenio was dispatched to the Valero gas station on the day of the
robbery. He spoke with Parikh, who told him that the robber displayed a gun which
made her very scared. The robber handed Lima a black plastic bag and ordered Parikh to
open the cash register. Lima gave it to Parikh. She placed between five and six hundred
dollars in the bag. The robber then ordered her to lie on the ground. She described the
robber as a Hispanic male, about 35 years old, and possibly with a beard.
 3

Michael Lima testified that he was working as a wholesaler who restocked display
cases with novelty items in June 2007. On June 8, 2007, he was at the Valero gas station
when a man entered and pointed a gun at his head. The robber said, “As long as no one
causes trouble, no one will get hurt.” The robber tried handing a black plastic bag to
Lima, but Lima put his hands up, stood back, and said, “Hey, I don‟t even work here.”
After he got the money, the robber said, “Okay. Everyone on the floor. Get on your
bellies. Count to 30.” As soon as the robber left, Lima called 911.
Lima described the robber as around 5 feet 7 inches to 5 feet 8 inches tall, mid- to
late 20‟s, Hispanic, and weighing 175 to 180 pounds. The robber was wearing a hood
and his arms were covered. His gun was a black and silver semiautomatic pistol, and
Lima heard the slide of the gun being pulled back and locked into place. Lima viewed an
in-person lineup in Sonoma County several months later, but did not recognize anyone.
Raul Hernandez was working as the manager of the station‟s detail shop when the
robbery occurred. He walked into the store and saw Parikh and Lima on the ground.
After Parikh told him that there had been a robbery, Hernandez saw a guy with a black
hoodie running out the back door and leave in a white truck. Hernandez ran after the
truck to try and get a license number, but there was no plate on the truck. When the truck
was stopped at a red light, Hernandez noticed that there was damage on the back bumper
of the truck and the windows were tinted. Hernandez identified a photograph of a truck
(exhibit 16) as similar to the one that he saw. While Hernandez was looking at the truck,
the robber rolled down his window, pointed a gun at him, and asked if he had a problem.
According to Hernandez, the robber was wearing a black tank top, and he had black hair
“[l]ike a fade” or a “soldier-style flat top.” The robber also had a goatee and a mustache.
Hernandez did not remember that he told the police that the man did not point the
gun at him. He also did not remember whether he told the police that the robber‟s arms
were hairy. He thought that the robber used his right hand when he pointed the gun at
 4

him. When the police showed him photographs of individuals a few weeks later, he did
not identify anyone as the robber.
Sergeant Randy Schriefer testified that he participated in the investigation of the
Valero gas station robbery on June 8, 2007. He interviewed Hernandez on July 5, 2007.
Hernandez told him that there was damage to the rear license plate frame of the truck, the
front driver‟s window was tinted, and the person in the truck rolled down the window and
brandished a handgun. Hernandez described the man as Hispanic, approximately 26
years old, with a goatee, and black hair that was shaved on the sides, and weighing 170
pounds. Hernandez also stated that the man had hairy arms. Schriefer was present when
Detective John McElvy showed Hernandez a photo lineup on December 3, 2007.
Defendant was a suspect at that time. Hernandez chose defendant‟s photograph.
According to Schriefer, Hernandez was “confident” of his identification.
Alicia Stephens, defendant‟s wife, testified that she and defendant were living in
Petaluma in May through July 2007. According to Stephens, defendant does not have
hairy arms, but he has colorful tattoos from his wrist to his elbow.
2. The Los Gatos Robbery - Acquittal on Count Three
The evidence as to count three was based on the preliminary hearing testimony of
Kourosh Adeli that was read into the record because Adeli had left the country. Adeli
testified that he was working at the Union 76 gas station in Los Gatos on June 8, 2007.
At approximately 1:57 p.m., a man entered the store with a plastic bag, took the money,
and told him not to say anything or he would kill him. The robber had a gun. Adeli put
the money in the bag. The robber pushed Adeli‟s head to the ground and told him to wait
for five minutes. Adeli described the robber as Mexican-American, wearing a black
jacket, and with a two-inch scar on his face.
Officer Joseph Romeo was dispatched to the Union 76 station on Los Gatos
Boulevard at about 2:00 p.m. on the day of the robbery. Adeli told him the robber was
 5

wearing a black sweatshirt with the hood pulled up, black pants or shorts, and black
shoes. He also said that the robber had a Spanish accent.
Officer Leyton Howard testified that he was present when Adeli was shown a
photo lineup on December 5, 2007. Adeli identified defendant‟s photo as the robber.
3. Evidence of Other Crimes
a. San Leandro Robbery
Santos Rivas was working at the Marina Shell gas station in San Leandro on
May 8, 2007, when a man, who was wearing a black hoodie and black jeans, entered. He
was either white or Mexican. Rivas identified defendant as that man at trial. Defendant
walked to the counter, displayed a gun, threw a plastic bag at her, and said, “Give me the
money.” She asked if he was “playing,” and he said, “No.” When Rivas opened the
register and began taking out the quarters, defendant said, “Fuck the change.” She
grabbed the bills and put them in the plastic bag. Defendant‟s gun had a slide on top that
pulled back. After he had the money, defendant told her to lie on the ground and count to
100. Rivas was unable to identify defendant in an in-person lineup in Sonoma County.
However, she identified defendant in a photo lineup.
Officer Louie Guillen was dispatched to the Shell gas station at about 7:45 p.m. on
May 8, 2007. Rivas told him that the robber held a black semiautomatic handgun in his
left hand and told her to get on the ground and count to 30 before he left. Rivas described
the robber as 24 or 25 years old, 5 feet 9 inches tall, about 170 pounds, and with a goatee
and mustache.
b. Sebastopol Robbery
Robert Ramos testified that he was working at the Valero gas station in Sebastopol
on November 11, 2007. After Ramos placed some money in the safe, there remained
$300 to $400 left in the register. At that point, a man entered the store, placed a plastic
bag on the counter, pulled out a two-toned gun, and asked Ramos to open the register. At
trial, Ramos identified defendant as the robber. After Ramos put the money in the bag,
 6

defendant ordered him to get on the floor and count to 30 or he would “blow [his] head
off.”
After the robber left, a customer entered the store and told Ramos that the robber
had driven away in a white pickup truck and was travelling south. Ramos called the
police and reported the robbery and the information from the customer. According to
Ramos, the robber was wearing jeans and an olive zip-up hooded sweatshirt and had a
“fairly thick beard.” The police detained a suspect and transported Ramos to the location
where he was being held. Ramos identified this individual, who was defendant, as the
robber. When Ramos identified defendant, he was surprised that he did not have a beard.
Sergeant Michael Nielsen testified that he received a dispatch call of a robbery in
progress at the Valero gas station at approximately 3:05 p.m. on November 11, 2007. He
eventually stopped a white pickup truck driven by defendant. Officers searched
defendant‟s truck and found an olive gray sweatshirt, $308 in cash in a plastic bag, a
handgun with eight rounds in it, and a box of ammunition. The gun was a semiautomatic.
The cash in the bag was organized by denomination. Defendant had “a beard, maybe a
week‟s growth.”
4. Other Evidence
Tai Nguyen, a former San Leandro police detective, conducted an investigation of
the San Leandro robbery. He opined that the San Leandro robbery was related to the San
Jose, Los Gatos, and Sebastopol robberies based on the description of the suspect, the
weapon used, and the manner in which the robberies were committed. After defendant
was arrested, Nguyen met with him. At that time, defendant signed a document with his
left hand which was consistent with his information that the robber had used his left hand
to hold the gun in each of the robberies.
The parties stipulated that on May 8, 2007, Officer Timothy Degrano recovered a
latent fingerprint from the interior frame of the main door of the Shell gas station in San
 7

Leandro that the suspect had appeared to touch. It was determined that the latent
fingerprint did not belong to defendant.
The parties also stipulated that defendant was employed by GMC Tech from
September 2006 to June 18, 2007. Defendant‟s employment records showed that
defendant left work at 3:45 p.m. on May 8, 2007, and that he did not work on
May 25, 2007, and June 4, 2007. Defendant worked from 7:26 a.m. until 3:47 p.m. on
June 5, 2007, from 7:24 a.m. until 2:53 p.m. on June 6, 2007, from 7:26 a.m. until 2:37
p.m. on June 7, 2007, and from 7:20 a.m. until 10:50 a.m. on June 8, 2007.

B. Defense Case
Deputy Eduardo Fernandez of the Sonoma County Sheriff‟s Department testified
that he conducted an in-person lineup on July 9, 2008. According to Fernandez,
defendant was 5 feet 9 inches tall and weighed 210 pounds when he was booked.
Jeffrey Gilbert Romero, defendant‟s father, testified that he celebrated Father‟s
Day, which was on June 17, with defendant on June 8, 2007. Defendant arrived at his
father‟s house in Vallejo at 2:15 p.m. or 2:45 p.m. They left at around 3:15 p.m., ate at a
Mexican restaurant, took a walk at the marina, and returned to Vallejo around 6:00 p.m.
Esther Rabuco, defendant‟s mother, testified that she visited defendant the day
after he was arrested and he looked like he did in a photo that was admitted in evidence.
Pursuant to a defense request, the trial court allowed defendant to roll up his
sleeves and display his arms to the jury.

II. Discussion
A. Other Crimes Evidence
Defendant contends that the trial court abused its discretion under Evidence Code
sections 1101 and 352 when it admitted evidence of the uncharged robberies that were
committed in San Leandro and Sebastopol.
 8

1. Background
The prosecutor brought a motion to admit evidence of 14 uncharged robberies to
prove the identity of the perpetrator of the charged crimes and to show the charged
crimes were part of a common scheme or plan. Defendant brought a motion to exclude
evidence of the uncharged robberies.
At the hearing on the motions, the trial court noted that the prosecutor had “agreed
to whittle down the list to eight” uncharged robberies. Following argument, the trial
court ruled that the prosecutor could elicit evidence of the robbery in Sebastopol on
November 7, 2007, and the robbery in San Leandro on May 8, 2007. It stated: “In those
cases, five of the characteristics appear in all of them. There‟s a gas station; black/silver
gun; the robber is alone, and he‟s described as Hispanic except for the Sebastopol case; a
plastic bag was provided in each one of these situations; each one of the victims was
ordered to get on the ground and count to 30. [¶] Alone or maybe one or two of these
factors being involved, the Court would not be inclined to allow it in, but I think there are
enough similarities to warrant the use of those two. And I think, again, balancing under
352, as I -- as the Court must, I don‟t think it‟s too cumulative. I don‟t believe it will be
too time consuming, and I think in light of the similarities that the Court has just
recounted that the probative value outweighs the prejudicial effect. So those are the
two.”
The prosecutor presented evidence that defendant committed robberies at gas
stations in San Leandro and Sebastopol. The trial court instructed the jury that if the
prosecution had proved by a preponderance of the evidence that defendant committed the
uncharged offenses, the jury could, but was not required to, consider this evidence for the
limited purpose of determining whether defendant committed the charged offenses.
After the jury found defendant guilty of counts one and two, he brought a motion
for a new trial on several grounds, including the admission of the uncharged offenses.
The trial court denied the motion.
 9

2. Legal Analysis
“ „Subdivision (a) of [Evidence Code] section 1101 prohibits admission of
evidence of a person‟s character, including evidence of character in the form of specific
instances of uncharged misconduct, to prove the conduct of that person on a specified
occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this
rule does not prohibit admission of evidence of uncharged misconduct when such
evidence is relevant to establish some fact other than the person‟s character or
disposition.‟ [Citation.] „Evidence that a defendant committed crimes other than those
for which he is on trial is admissible when it is logically, naturally, and by reasonable
inference relevant to prove some fact at issue, such as motive, intent, preparation or
identity. [Citations.]‟ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).)
“ „ “[O]ther-crimes evidence is admissible to prove the defendant‟s identity as the
perpetrator of another alleged offense on the basis of similarity „when the marks common
to the charged and uncharged offenses, considered singly or in combination, logically
operate to set the charged and uncharged offenses apart from other crimes of the same
general variety and, in so doing, tend to suggest that the perpetrator of the uncharged
offenses was the perpetrator of the charged offenses.‟ [Citation.]” [Citation.] The
inference of identity, moreover, need not depend on one or more unique or nearly unique
common features; features of substantial but lesser distinctiveness may yield a distinctive
combination when considered together.‟ [Citation.]” (People v. Vines (2011) 51 Cal.4th
830, 856-857 (Vines), superseded by statute on another pont as recognized in People v.
Robertson (2012) 208 Cal.App.4th 965, 981; see also People v. Kipp (1998) 18 Cal.4th
349, 369-370.)
“ „When reviewing the admission of evidence of other offenses, a court must
consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value
of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule
or policy requiring exclusion even if the evidence is relevant. [Citation.]‟ ” (Fuiava,
 10

supra, 53 Cal.4th at p. 667.) Moreover, the probative value of the uncharged offense
must be weighed against the danger “of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.)
“ „ “We review for abuse of discretion a trial court‟s rulings on relevance and
admission or exclusion of evidence under Evidence Code sections 1101 and 352.”
[Citation.]‟ [Citation.]” (Fuiava, supra, 53 Cal.4th at pp. 667-668.)
Defendant focuses on each factor that the trial court referred to in its ruling and
argues that it was not unusual or distinctive. Relying on his own search of published
appellate opinions, newspaper articles, and Federal Bureau of Investigation (FBI)
statistics, he asserts that a gas station is a common venue for a robbery. He then notes
that a black and/or silver gun is not distinctive and that U.S. Census Bureau figures in
2010 establish that 37.6 percent of Californians are Hispanic. He also relies on his case
law search to argue that “plastic bags are standard robbers‟ equipment” and there is
“nothing unusual about a robber‟s telling victims to get on the ground . . . .”2
Defendant‟s argument, however, fails to acknowledge that the trial court need not
consider each factor in isolation. Factors of “ „lesser distinctiveness may yield a
distinctive combination when considered together.‟ ” (Vines, supra, 51 Cal.4th at p. 857.)
Here, the principle issue at trial was identity. The evidence of the charged and uncharged
robberies involved the robbery of a gas station in which a male, acting alone, displayed a
black/chrome semiautomatic and told the victim to put the money in a plastic bag. After
ordering the victims to get on the floor and to count to 30, the robber left.3 Moreover, the

2
This court has previously denied defendant‟s request to take judicial notice of the
FBI statistics and the percentage of the Hispanic population in California.
3
Defendant points out that Adeli testified at the preliminary hearing that the robber
told him to wait for five minutes on the ground. However, the prosecutor‟s motion to
admit evidence of the uncharged offenses states that the robber told Adeli to count to 30.
At the hearing on the motion, the trial court stated that it had not looked at any police
reports or the preliminary hearing transcript and asked defense counsel if he wanted it to
“take a look” at the prosecutor‟s summary of the charged offenses as “background.”
 11

robber was Hispanic in three of the four robberies. The trial court could reasonably find
that these common factors, when considered together, were very probative on the issue of
identity.
Defendant also contends that the evidence of the uncharged offenses should have
been excluded as more prejudicial than probative under Evidence Code section 352. He
argues that the evidence of the charged robberies was weak and the “stronger evidence
that [defendant] had committed two uncharged robberies was calculated to, and did, shore
up the weak evidence and result in convictions on the San Jose incident.”
The “undue prejudice” referred to in Evidence Code section 352 “is not
synonymous with „damaging,‟ but refers instead to evidence that „ “uniquely tends to
evoke an emotional bias against defendant” ‟ without regard to its relevance on material
issues.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) This “ „ “evidence should be
excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the
jury, motivating them to use the information, not to logically evaluate the point upon
which it is relevant, but to reward or punish one side because of the jurors‟ emotional
reaction. In such a circumstance, the evidence is unduly prejudicial because of the
substantial likelihood the jury will use it for an illegitimate purpose.” [Citations.]‟ ”
(People v. Scott (2011) 52 Cal.4th 452, 491.)
Here, evidence of the uncharged offenses was not more inflammatory than that of
the charged offenses. Thus, the trial court did not abuse its discretion in concluding the
probative value of the evidence outweighed its prejudicial effect. Moreover, if the jury‟s
emotional reaction to the evidence of the uncharged offenses had been improper, it would
have convicted defendant of both robberies. That it acquitted defendant of the Los Gatos

Defense counsel had no objection and did not challenge the prosecutor‟s characterization
of the facts of the Los Gatos robbery at any time during the hearing. Based on this
record, the trial court properly concluded that the perpetrator of the Los Gatos robbery
told his victim to get on the ground and count to 30.
 12

robbery showed that it considered the uncharged offenses for the limited purpose set forth
in the trial court‟s instructions.
Defendant next argues that the evidence of the uncharged crimes violated his
federal constitutional right to due process. The erroneous admission of other crimes
evidence “results in a due process violation only if it makes the trial fundamentally
unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.) Since we conclude that the trial
court properly exercised its discretion in concluding that the probative value of the
relevant evidence outweighed its prejudicial effect, we find no due process violation.

B. Newspaper Articles on Mistaken Identification
Defendant also contends that the trial court abused its discretion in denying his
request to read parts of newspaper articles on mistaken identification to the jury during
closing argument.
Prior to closing argument, defense counsel requested permission to read parts of
articles from two newspapers regarding mistaken identification. He stated: “What I‟d
like to do, and my understanding is it‟s in the discretion of the Court and I have to request
permission from the Court, is read certain parts of articles from the Mercury News and
another article from the news regarding mistaken identification. I don‟t want to read the
entire article. As a matter of fact, I have the parts highlighted I want to read and crossed
everything else out, but I wanted to seek permission from the Court first and bring it to
your attention before I did it.”
The trial court asked defense counsel to provide “some detail on what the article
purports to state or . . . perhaps you can give me a synopsis of the article.” Defense
counsel then stated: “The first one is the Mercury News. It appears the reporter is
Fredrick Tulsky, and essentially it‟s just a news article about a gentleman who was
convicted in 2000 after being the masked intruder who allegedly robbed a 7-Eleven in
Milpitas in 1998, hopped the counter, took money from the cash register. The clerk
 13

identifies Hutchinson as the robber even though the clerk gives conflicting testimony to
police officers. Then the attorney calls one defense witness and so forth. [¶] Then the
other part of the article just states that a federal judge overturned the Milpitas man‟s
robbery conviction citing persuasive independent evidence. That‟s one article. [¶]
There‟s a bunch of other stuff in there, Judge, but I don‟t -- you know, I don‟t think it
should be read at all.”
Regarding the second article, defense counsel stated: “This is from, it looks like,
Nature News. I pulled it from the internet here. This is an article written by Laura
Spinney, and it talks generally about eyewitness identification and its problems and such.
And the only relevant part I wanted to read to the jury here has to do with a gentleman
who was arrested, Jerry Miller, for it says kidnap, rape, and robbery of a woman, but I
could leave that out. I can leave out the kidnap and rape. All I care about is the robbery.
[¶] And then after two eyewitnesses at the crime picked him out of a lineup and the
victim identified him at the trial, he was convicted. He was convicted, and it says,
sentenced to 45 years in prison. I can leave that out. I don‟t really want that. But then in
March, 2007, the victim‟s clothing was subjected to DNA testing and found not to belong
to him. His conviction was quashed a month later. Then it said he spent 24 years in jail,
but I can leave that out, anything that has to do with sentencing, time in prison and such.
That‟s pretty much all I would want to read, just to express a part of my argument how
unreliable eyewitness identifications are.”
The trial court denied the request on the basis that the defense had not presented
any expert witness testimony on the reliability of eyewitness identification.
People v. West (1983) 139 Cal.App.3d 606 (West) discussed the two lines of
authority as to whether counsel may read and/or use newspaper articles on matters of
common knowledge during closing argument. (West, at p. 610.) West first referred to
People v. Guzman (1975) 47 Cal.App.3d 380 in which the court stated that counsel
should have been “ „permitted to refer to magazine and newspaper articles reflecting
 14

illustrations of incidents of misidentification, a matter of common knowledge.‟
[Citation.]” (West, at p. 610.) West then noted that a contrary view was stated in People
v. Mendoza (1974) 37 Cal.App.3d 717. Mendoza concluded: “ „Counsel‟s summation to
the jury must be based upon facts shown by the evidence or known judicially. [Citation.]
Counsel may refer the jury to nonevidentiary matters of common knowledge, or to
illustrations drawn from common experience, history, or literature [citation], but he may
not dwell on the particular facts of unrelated, unsubstantiated cases.‟ ” (West, at p. 611.)
This court followed the Mendoza line of cases in People v. London (1988) 206
Cal.App.3d 896. In London, the trial court denied defense counsel‟s request to refer in
closing argument to a magazine article that reported an incident in which an eyewitness
erroneously identified a district attorney as the perpetrator of a crime. This court
concluded that “the trial court properly excluded hearsay about a particular, alleged
instance of misidentification which had nothing to do with the case before it.” (Id. at
p. 909) However, London also noted that the trial court permitted defense counsel to
“ „say that in general, that there are repeated instances [of mistaken identity] in
magazines.‟ ” (Ibid.)
“[W]hether a particular newspaper or magazine article should be read to the jury,
is a matter that is addressed to the sound discretion of the trial court. [¶] In exercising
that discretion, the trial court should read the newspaper article and consider whether it
relates to matters of common knowledge or substantiated illustrations of common
experience, whether the article is relevant to the case and whether the article may confuse
the issues in the case. [Citation.]” (West, supra, 139 Cal.App.3d at p. 611.)
Here, under People v. London, supra, 206 Cal.App.3d 896, the trial court could
have properly exercised its discretion to deny defense counsel‟s request to the extent that
he sought to refer to the specific facts of unrelated cases, but this was not the basis for the
trial court‟s ruling. The trial court denied the request on the ground that there had been
no expert testimony on misidentification, and thus it did not consider whether some
 15

portions of the articles were related to matters of common knowledge or whether the
articles might confuse the issues in the case. However, the error was harmless. Here,
defense counsel cross-examined the witnesses about the discrepancies in their
identification. He also emphasized during argument the witnesses‟ inability to correctly
identify defendant and suggested to the jury why Hernandez‟s identification was
unreliable. Thus, even if defense counsel had been allowed to read the portions of the
newspaper articles that referred to matters of common knowledge, it is not reasonably
probable that the result would have been more favorable to defendant. (People v. Watson
(1956) 46 Cal.2d 818, 836.)

C. Sentencing
Defendant contends, and the Attorney General concedes, that he is entitled to: (1)
presentence credits that had previously been awarded in the Sonoma County case, and (2)
custody credits for the period between the date of his sentencing hearing in Sonoma
County and the date of his sentencing hearing in the present case.
When defendant was sentenced in the present case, he was serving a prison term
of three years for a robbery conviction in Sonoma County as well as a 10-year term for a
firearm use enhancement. The trial court reimposed these terms and then imposed
consecutive terms of one year on count one and eight months on count two. The trial
court also imposed a term of three years and four months for the firearm use
enhancement on count one and stayed the term for the firearm use on count two. The
trial court did not award any presentence credits, because it concluded that presentence
credits were attributable to the Sonoma County case.
“If a determinate sentence is imposed under section 1170.1 (a) consecutive to one
or more determinate sentences imposed previously . . . in other courts, the court in the
current case must pronounce a single aggregate term . . . .” (Cal. Rules of Court, rule
4.452.) People v. Saibu (2011) 191 Cal.App.4th 1005 (Saibu) held that when a trial court
 16

resentences a defendant to a single aggregate term pursuant to California Rules of Court,
rule 4.452, it has modified the sentence for purposes of section 2900.5,4 and thus the
defendant is entitled to presentence credits for time that he has already served. (Saibu, at
p. 1012.) Here, since the trial court imposed a single aggregate term for both the present
case and the Sonoma County case, defendant is entitled to 486 days of presentence
credits that were awarded in the Sonoma County case.
As in Saibu, since defendant served part of his sentence in the Sonoma County
case before he was sentenced to a single aggregate term in the present case and the prior
case, the trial court is required to award custody credits for the time that he served
between the date of his original sentencing on January 6, 2009, and the date of his
resentencing on June 17, 2011. (Saibu, supra, 191 Cal.App.4th at p. 1012.) He is also
entitled to conduct credits for that period, which are calculated by the Department of
Corrections and Rehabilitation. (Id. at p. 1013, fn.9.)
The Attorney General argues that the trial court unlawfully stayed the firearm
enhancement on count two. We agree.
“Ordinarily, an enhancement must be either imposed or stricken „in furtherance of
justice‟ under Penal Code section 1385. [Citations.] The trial court has no authority to
stay an enhancement, rather than strike it—not, at least, when the only basis for doing
either is its own discretionary sense of justice.” (People v. Lopez (2004) 119 Cal.App.4th
355, 364.) “The terms „stay‟ and „strike‟ are not legally synonymous. [Citation.] A stay
is a temporary suspension of a procedure in a case until the happening of a defined
contingency. [¶] In contrast, a striking is an unconditional deletion of the legal efficacy
of the stricken allegation or fact for purposes of a specific proceeding. It is tantamount to

4
Section 2900.5, subdivision (b) provides: “For the purposes of this section, credit
shall be given only where the custody to be credited is attributable to proceedings related
to the same conduct for which the defendant has been convicted. Credit shall be given
only once for a single period of custody attributable to multiple offenses for which a
consecutive sentence is imposed.”
 17

a dismissal.” (People v. Santana (1986) 182 Cal.App.3d 185, 190, fns. omitted.) “The
failure to impose or strike an enhancement is a legally unauthorized sentence subject to
correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64
Cal.App.4th 386, 391.)
Since the stay of the firearm enhancement on count two constitutes an unlawful
sentence, the matter must be remanded for the trial court to exercise its discretion to
either impose or strike the enhancement. In the event that the trial court strikes the
enhancement, it must set forth its reasons in the minutes. (People v. Superior Court
(Pipkin) (1997) 59 Cal.App.4th 1470, 1477.)5

III. Disposition
The judgment is reversed and the matter is remanded for resentencing.

5
Defendant points out that the abstract of judgment bears only the Santa Clara
County case number and thus it must be corrected to reflect: (1) the trial court imposed
the 18-year term for both the Sonoma County case and the present case, and (2) the
abstract of judgment filed in Sonoma County is superseded by the amended abstract. He
also notes that the amended abstract should: (1) specify that the conviction in Sonoma
County was for second degree robbery (see § 213 [only second degree robbery has a
midterm of three years]), and (2) cite section 211, rather than section 21, in connection
with the robbery count in the present case. These corrections must be made to the
abstract of judgment.
 18

_______________________________
Mihara, J.

WE CONCUR:

______________________________
Premo, Acting P. J.

______________________________
Márquez, J.