People v. Morrison, F052296 (Cal. App. 3/13/2009)

• Decision Date: 13 March 2009
• Docket Number: F052296
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE MORRISON et al., Defendants and Appellants.

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THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE MORRISON et al., Defendants and Appellants.

F052296

Court of Appeals of California, Fifth Appellate District

March 13, 2009

Not to be Published in the Official Reports

Appeal from a judgment of the Superior Court of Stanislaus County, No. 1063489. Ricardo Cordova, Judge.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant David Wayne Morrison.

Kyle Gee, under appointment by the court of Appeal, for Defendant and Appellant Anthony Lawrence Martinez.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant David Anthony Silva.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, P.J.

Following a series of violent home-invasion robberies, David Wayne Morrison, Anthony Lawrence Martinez, and David Anthony Silva (Morrison, Martinez, and Silva, respectively; collectively, defendants) were charged, by amended indictment filed in Stanislaus County Superior Court, with 19 counts of residential robbery in concert, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang (Pen. Code,¹ §§ 186.22, subd. (b)(1), 212.5, subd. (a), 213, 12022.53, subd. (b); counts 1, 2, 3, 5, 10, 11, 12, 13, 15, 16, 17, 18, 19, 21, 24, 25, 32, 33, 34); two counts of attempted residential robbery in concert, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang (§§ 186.22, subd. (b)(1), 212.5, subd. (a), 213, 664, 12022.53, subd. (b); counts 6, 7); one count of attempted residential robbery in concert, involving the personal discharge of a firearm and personal infliction of great bodily injury, and committed for the benefit of or in association with a criminal street gang (§§ 186.22, subd. (b)(1), 212.5, subd. (a), 213, 664, 12022.53, subd. (d), 12022.7, subd. (a); count 31); three counts of sexual penetration with a foreign object, involving the personal use of a firearm and tying or binding of the victim, and committed against more than one victim (§§ 289, subd. (a)(1), 667.61, subds. (a) & (e), 12022.53, subd. (b); counts 4, 28, 29); four counts of assault by means of force likely to produce great bodily injury, committed for the benefit of or in association with a criminal street gang (§§ 186.22, subd. (b)(1), 245, subd. (a)(1); counts 8, 9, 14, 35); two counts of assault with a firearm, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang (§§ 186.22, subd. (b)(1), 245, subd. (a)(2), 12022.5, subd. (a); count 20, 23); three counts of kidnapping for robbery, involving the personal use of a firearm (§§ 209, subd. (b), 12022.53, subd. (b); counts 22, 26, 27); one count of attempted premeditated murder, involving the personal discharge of a firearm and infliction of great bodily injury, and committed for the benefit of or in association with a criminal street gang (§§ 186.22, subd. (b)(1), 187, 664, 12022.53, subd. (d), 12022.7, subd. (a); count 30); two counts of attempted murder of a peace officer, involving the personal discharge of a firearm and committed for the benefit of or in association with a criminal street gang (§§ 186.22, subd. (b)(1), 187, 664, subd. (e), 12022.53, subd. (c); counts 36, 37); and one count of conspiracy to commit first degree robbery (§§ 182, 212.5, subd. (a); count 38). In addition, Silva was charged with being a convicted felon in possession of a firearm (§ 12021, subd. (a); count 39), and was alleged to have been previously convicted of a serious felony (§ 667, subds. (a)) that was also a strike (id., subd. (d)), and for which he served a prison term (§ 667.5, subd. (b)).

Near the outset of trial, Silva pled no contest to count 39. A jury subsequently convicted appellants of all charged offenses, but reached differing verdicts, or were unable to reach verdicts, on the various enhancement allegations, as follows:

Martinez: The jury found the firearm use allegation true with respect to counts 15, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, and 34, but failed to reach a verdict on the allegation with respect to counts 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 16, 17, 18, 19, and 20. The jury found true the firearm discharge and great bodily injury allegations with respect to counts 30 and 31, as well as the premeditation allegation with respect to count 30, but not true the firearm discharge allegations with respect to counts 36 and 37. The jury also found true the tying or binding and multiple victims allegations with respect to counts 4, 28, and 29.

Morrison: The jury found the firearm use allegation true with respect to counts 1, 5, 6, 7, 12, 13, 15, 18, 19, 20, 24, 25, 26, 27, 28, 29, 32, 33, and 34, but failed to reach a verdict on the allegation with respect to counts 2, 3, 4, 10, 11, 16, 17, 21, 22, and 23. The jury found not true the firearm discharge and great bodily injury allegations, and reached no verdict on the premeditation allegation, with respect to count 30; found not true the firearm discharge and great bodily injury allegations with respect to count 31; found not true the firearm discharge allegations with respect to counts 36 and 37; and found true the tying or binding and multiple victims allegations with respect to counts 4, 28, and 29.

Silva: The jury found the firearm use allegation true with respect to counts 2, 3, 4, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, and 34, but failed to reach a verdict on the allegation with respect to counts 1, 5, 6, 7, 10, and 11. The jury further found true the firearm discharge allegations with respect to counts 30, 31, 36, and 37; the great bodily injury allegations with respect to counts 30 and 31; the premeditation allegation with respect to count 30; and the tying or binding and multiple victims allegations with respect to counts 4, 28, and 29.

A mistrial was declared with respect to the allegations as to which the jury could not reach a verdict. Following a bifurcated court trial, Silva's prior conviction and prison term allegations were found to be true, but the criminal street gang allegations were found not true with respect to all counts and all defendants. Upon defendants' motion for a new trial, the trial court found insufficient evidence to sustain the jury's true findings, as to Silva and Morrison, with respect to the firearm enhancements on counts 18, 19, and 20.

Each defendant was sentenced to prison for a determinate term exceeding 100 years in length plus multiple consecutive life terms, and was ordered to pay restitution and various fees and fines. All filed timely notices of appeal and now raise numerous claims of trial and sentencing error.² For the reasons that follow, we will modify the judgment as to each defendant and remand for resentencing.

FACTS

Count 1 — May 25, 2003

Shortly after midnight on May 25, 2003, Keyes resident Jimmy Lasater awoke to discover two men standing inside his house, about four feet from him, with guns pointed at his head. One gun looked like a chrome or light-colored snub-nose .38 revolver. The men were wearing ski masks, dark jackets, and what appeared to be leather gloves. They threw Lasater's pajama bottoms at him and told him to put them over his face, then pushed him to the floor and tied his hands behind his back with a rope that had been in one of the bedrooms. The pair then took everything out of Lasater's pockets and began ransacking the house. While this was going on, Lasater could hear two male voices. There was also a third robber in his bedroom, but, because this person whispered, Lasater could not determine whether the individual was male or female.

The robbers asked Lasater where his guns were, and one wanted to know which key went to the safe in Lasater's bedroom. They took the cash from Lasater's wallet, $6,000 to $10,000 from the safe, all of Lasater's approximately 10 firearms, and various the person who asked about the key to the safe later asked about the keys to Lasater's Camaro, the vehicle was not taken. At some point, the robbers called Lasater by his first name, and said they were not going to bother his cars, because he was cooperating and they knew he was going to hand them on down to his grandchildren.³

Lasater estimated the intruders were in his house about an hour and a half to two hours. He did not recognize them or anything about their voices, except that they sounded Hispanic to him. Authorities recovered one of his guns, a Browning nine-millimeter semiautomatic, following the arrests in this case.

Counts 2-4 — June 26, 2003

In June 2003, P.S. and his wife, Jane Doe One, owned two businesses in Turlock. At approximately 12:30 a.m. on June 26, the two were asleep in their Turlock residence when they were awakened by a loud noise and the sound of glass. Upon getting out of bed, Jane Doe One discovered that the living room door was broken in two, and there were footsteps and four or five flashlight beams coming toward her. She and P.S. tried to close and lock the bedroom door, but the intruders broke through. All were dressed in ski masks, dark clothing and gloves. One's gun was touching Jane Doe One's forehead. She believed there were four or five intruders, all with guns and flashlights; P.S. believed there were two hands and two guns, one of which was silver-colored and did not have a cylinder.

Two people came into the bedroom. One briefly shined the flashlight in Jane Doe One's eyes, blinding her, and told her to look away. She complied, and was told to get down on the floor. When she did so, one of the intruders tied her hands with cords cut from electrical appliances in the bedroom, while another intruder tied her...