P. v. Gorman

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Filed 1/27/05 P. v. Gorman CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL THOMAS GORMAN,
Defendant and Appellant.
A102310
(Humboldt County
Super. Ct. No. CR011617CS)
Appellant persuaded friends of his, a man and a woman, to gain entry to a
stranger’s motel room by offering him the woman’s services as a prostitute. Their plan
was that once inside the room, appellant’s friends would obtain the victim’s money either
by robbery or by deception. While appellant’s friends were in the motel room, one of
them killed the victim. Appellant, his friends, and another man returned to the motel
room after the victim’s death and took the victim’s money and belongings. A jury
convicted appellant of felony murder and burglary.
On this appeal, appellant argues: (1) that the jury instructions on felony murder did
not adequately advise the jury of the need for a causal connection between the felony and
the killing; (2) that the trial judge abused his discretion in admitting evidence that
appellant used a racial slur to refer to the victim after his death; (3) that appellant’s trial
counsel’s failure to object to the admission of appellant’s pretrial statement to the police
constituted ineffective assistance of counsel; and (4) that in selecting the upper term on
the burglary count and directing that appellant’s sentences be served consecutively, the

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trial judge inappropriately relied on aggravating factors not found by a jury, in violation
of Blakely v. Washington (2004) __ U.S. __ [124 S.Ct. 2531] (Blakely). We reject all of
these contentions except for the Blakely argument as to the selection of the upper term for
burglary, and affirm the judgment except insofar as resentencing is required on the
burglary conviction.
FACTS AND PROCEDURAL BACKGROUND
On April 2, 2001,1 appellant and his friend Rachael Lane paid a visit to a man they
knew named Shawn Harrison who occasionally sold methamphetamine. Troy Russell,
Harrison’s former brother-in-law, was also visiting Harrison at the time. Harrison told
his visitors that, earlier that day, he had sold some methamphetamine to a man (later
identified as Bruce James) who was staying at a nearby motel; he added that the man
appeared to have a lot of cash and was interested in obtaining the services of a prostitute.
Russell and Harrison had committed robberies together before, and the group discussed
the idea of taking James’s money from him. Russell was not interested in the idea, but
appellant asked Harrison for James’s room number at the motel. According to Rachael
Lane, the discussion about “ripping [James] off” was just a joke, and was not serious.
Russell testified that he never heard appellant use the word “rob.”
Later that evening, around 7:00 or 8:00 p.m., appellant and Rachael Lane went to
the apartment of Amber Ladue, where they encountered Rachael Lane’s brother, Michael
Lane2, and his girlfriend, Florence Laurel Anderson, who was a friend of Ladue’s. Ladue
lived not far from the motel where James was staying. Lane and Anderson were staying
with their friend Gordon Combs in another apartment in the same building, and
sometimes borrowed Ladue’s apartment so they could have some privacy. Lane and
1 All further references to dates are to the year 2001 unless otherwise specified.
2 Michael Lane was also a friend of appellant’s and was the actual perpetrator of the
murder of which both he and appellant were convicted. He was also a principal witness
for the prosecution at appellant’s trial. For simplicity and clarity, we refer to Michael
Lane as Lane, and to Rachael Lane by her full name.

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Anderson asked appellant and Rachael Lane if they had any drugs,3 and appellant
responded by suggesting that they could obtain cash from James, either by fraudulently
proposing to get drugs for him and keeping the money, or by offering him Anderson’s
services as a prostitute.
Lane did not want to feign a drug deal with James. Anderson was willing to act
(or at least pose4) as a prostitute to get James’s money, but Lane did not want her to do
so. Nonetheless, Anderson and Lane agreed with appellant that the three of them would
go to the motel, that Anderson would offer James her services as a prostitute, and that
appellant would receive a share of whatever money Anderson and Lane could obtain
from James, or of the drugs they would buy with it. Lane denied that they discussed
robbing James.
Before going to the motel, either Lane or Anderson asked Ladue for a knife with
which to protect themselves, and told Ladue that appellant was “sending them [Anderson
and Lane] on a mission.” Appellant was there when they did so, but did not say anything.
Ladue gave Lane a knife, and then went to sleep.5
3 Appellant, Rachael Lane, Russell, Lane, Anderson, Ladue, and Combs were all
methamphetamine users at the time of these events.
4 There was a conflict in the evidence as to whether Anderson had previously
worked as a prostitute, and as to whether the plan was that she would really offer her
services as such to James, or merely pretend to be willing to do so. Lane testified at trial
that Anderson fairly frequently sold her services for drugs or for money to buy drugs, and
that he had accompanied her, for her protection, on a few prior occasions when she had
conducted such a transaction with a stranger. He had told the police at one point during
their investigation that Anderson never worked as a prostitute while she was involved
with him, but he testified at trial that this statement was true only in the sense that
Anderson prostituted herself solely to obtain drugs (or money for drugs), and not as a
regular occupation. In any event, there is substantial evidence in the record that Lane and
Anderson gained entry to James’s motel room by suggesting to him – whether truthfully
or not – that Anderson was available as a prostitute. Appellant does not argue otherwise
on this appeal.
5 There was a conflict in the testimony regarding whether Ladue was in her
apartment when appellant, Lane, and Anderson discussed their plan. Lane testified that
she arrived just as they were leaving. Ladue testified that she was in the apartment
asleep, and they woke her up to ask for the knife.

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Lane, Anderson, and appellant then walked together to the motel where James was
staying. Lane and Anderson knocked on the door of James’s room, telling him that
“Shawn sent me,” while appellant (as he had told Lane he planned to do) entered the
room next door to James’s in order to visit his friend Kelly Eyerley. It is undisputed that
appellant was not in James’s room during the ensuing events, and was not present when
Lane killed James.
Lane testified as follows regarding the ensuing events. James appeared to be
drunk when he came to the door to let him and Anderson into the room.6 Lane and
Anderson were surprised and upset to learn that James was Black, a piece of information
that Harrison had not shared with appellant. Lane did not like or trust Black people,
because his grandmother had been raped by a couple of Black men when she was young.
Nonetheless, Anderson proceeded to offer James her sexual services for money. James
accepted, but was unwilling to allow Lane to remain in the room to protect Anderson
during the activity, so Lane went into the bathroom in order to remain nearby. Shortly
thereafter, Lane heard Anderson scream, and emerged from the bathroom to see James
beating her. Lane then “freaked out,” and stabbed James at least five times, killing him.
Lane and Anderson then left the motel without taking the only money they saw in
James’s room, which amounted to only $20. Anderson took James’s cigarettes and
lighter.
Ladue was, generally speaking, a problematic witness. She suffered from a
number of mental disorders, for which she was taking numerous medications at the time
she testified against appellant. She acknowledged that her recollection of the relevant
events was hazy, and that she was “having problems keeping things straight” in her
testimony. For example, although she testified at appellant’s trial that she gave the knife
to Lane, she admitted that when she testified at Lane and Anderson’s trial, she had not
remembered whether she gave it to Lane or Anderson. Ladue was originally charged as
an accessory after the fact in connection with James’s murder, but agreed to testify
against Lane, Anderson, and appellant in exchange for immunity.
6 This testimony was corroborated by a forensic analysis showing that James had a
blood-alcohol level of .26 when he died.

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According to Ladue, appellant returned to Ladue’s apartment alone, some 20
minutes after he had left for the motel.7 Ladue testified that appellant told her he was
worried that something had gone wrong, because Lane and Anderson had not yet
returned. Shortly thereafter, Lane and Anderson arrived, awakening Rachael Lane, who
had been asleep on Ladue’s couch. Both Lane and Anderson were very upset, and
Anderson was crying. Lane had a large knife, which he hid under a sofa cushion; he told
appellant that he had killed James. Appellant appeared to Lane to be shocked upon
hearing this, but he nonetheless asked where James’s money was; Lane replied that he
did not know.
Upon hearing that James had been killed, appellant called Harrison, at Lane’s
request, and asked him to come and see him. Appellant and Lane had an argument about
whether they should return to the motel room. Rachael Lane testified that it might have
been appellant who wanted to do so, but she was not sure. According to Lane, however,
he was the one who persuaded appellant to go back.8 Lane and Anderson were angry
because they believed that appellant had set them up by telling them incorrectly that
James had a lot of money, and by not telling them that he was Black.
Ultimately, Lane, Anderson, and appellant returned to the motel, accompanied by
Harrison. Lane entered James’s room by climbing in the bathroom window, and then
opened the door to let in the others. Lane went through James’s pockets and belongings
and took his necklace, shoes, and wallet, and a small sum in cash. Appellant did not take
7 Lane also testified that he and Anderson returned to Ladue’s separately from
appellant. Rachael Lane testified that appellant, Lane, and Anderson all returned to
Ladue’s apartment together, but she also testified (as did Lane) that she had fallen asleep,
and awoke again when they arrived.
8 Lane told the police shortly after James’s death that it was appellant who had
insisted they return to the motel, claiming James had $500 or $600 in his possession. In
his trial testimony, however, Lane contended that he had been lying when he said this, in
an effort to blame someone else for James’s death. As discussed post, appellant told the
police he had gone back to the motel at Lane’s insistence because he was afraid of Lane
at that point.

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anything, but according to Lane, he helped Lane flip over the mattress, and either took
James’s credit card or accepted it from Lane.9
Later, in the early hours of the morning on April 3, Lane and Anderson went to
Combs’s apartment. Lane testified that he told Combs a version of the events that was
consistent with his trial testimony, but he also admitted he might have told Combs
(untruthfully, according to Lane’s trial testimony) that they had gone to the motel to rob
James. According to Combs, Lane not only told him that he had just killed a man at the
motel, but also averred that he and Anderson had gone there to rob the man by having
Anderson pose as a prostitute. Lane also told Combs that he had remarked to Anderson
on the way to the motel that if things got out of hand, he might have to stab the intended
robbery victim.
Ladue testified that around noon on April 3, she awoke and found Lane cleaning
her knife, which he then wrapped in newspaper. Lane testified that he told Ladue that he
had killed a man at the motel with Ladue’s knife. Ladue testified that Lane also told her
he had gone to the motel to rob the man. Ladue drove Lane and Anderson to a jetty or
pier, where Lane threw the knife into the ocean, and then to a remote area in the woods,
where Lane and Anderson burned their clothes.
James’s body was discovered in his room by the motel housekeeper shortly after
10:00 a.m. on April 3. He had been stabbed four times in the back and once in the elbow,
and had bled to death. His room had been ransacked, and there were signs of a forced
entry through the bathroom window.
A day or two later, Russell encountered appellant again. By then, word of the
killing at the motel had circulated in the area, and appellant appeared to Russell to be
9 Lane’s testimony was inconsistent regarding how, or even whether, appellant
obtained James’s credit card. Russell testified that appellant told him he had the card, but
Russell never actually saw appellant with it. Russell did see Harrison with the credit
card, however; Harrison was holding it when he told Russell that he and appellant had
bought gas for Russell’s truck, which Harrison had borrowed to give appellant a ride.
The prosecution introduced evidence that the credit card had been used to buy gas at a
nearby gas station on the morning after James’s death.

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worried about what had happened. Russell testified that appellant told him he had gone
to the motel with Lane and Anderson, but had gone into the room next door to visit
Eyerley. Russell said appellant told him that he had heard sounds of a “loud ruckus”
from the next room, and that Lane had ended up stabbing the victim during a struggle.
Russell interpreted what appellant said as indicating that Lane and Anderson had robbed
the victim, but appellant did not actually use the word “rob.” Appellant complained to
Russell that Lane and Anderson had only given him (or him and Harrison) a credit card
and a small sum of money (about $20), and that he believed they were “holding out on
him.” Russell also testified that appellant and Harrison made racially derogatory remarks
about the victim, referring to him as “just another dead nigger, porch monkey, dead
cricket, something like that.”10
On April 10, about a week after James was killed, a police detective interviewed
Lane and Anderson, and learned from them that appellant had been involved in the events
leading up to the killing. The police spoke with appellant’s family and asked them to
have appellant to call them. On April 11, appellant voluntarily went to the police station
to be interviewed. Appellant was not given any Miranda11 warnings prior to the
interview. A tape recording of the interview was played to the jury at appellant’s trial.
Appellant’s trial counsel did not object to the admission of the tape recording.
In his interview with the police, appellant initially told a story about the events
that the police told him they knew was not true. The police then told appellant that Lane
and Anderson had been arrested, and had told them appellant was not in the room when
James was killed. Appellant then acknowledged that he had told Lane and Anderson
about Harrison’s report that James had a lot of money and wanted a prostitute. He also
admitted that he had proposed to Lane and Anderson that they obtain James’s money –
10 Russell acknowledged at trial that he did not like appellant. Russell had an
extensive criminal record and had been granted immunity for as many as 30 uncharged
robberies in exchange for his testimony. Lane testified he had never heard appellant use
the word “nigger.”
11 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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either by promising to buy drugs with it and not returning, or by stealing it while
Anderson distracted James with sex – and give appellant a share of the proceeds. He
acknowledged going to the motel with Lane and Anderson, and spending a short time in
Eyerley’s room before returning to Ladue’s apartment. He said he had not heard
anything from James’s room except a little bang on the wall, and that he had told Eyerley
that Lane and Anderson were going to get James’s money by pretending they would use
it to buy drugs for him.
Appellant also acknowledged in the interview that after finding out that Lane had
stabbed James, he went back to the motel with Lane at Lane’s insistence; he averred that
he was afraid Lane would stab him if he refused. Appellant explained that he called
Harrison to accompany them to the motel, and that when they got there, he knocked on
James’s door but received no response. He said Lane and Anderson then went in through
the window and let him and Harrison in through the door. Appellant contended he had
only watched while Lane, Anderson, and Harrison rummaged through James’s
belongings and took his money, shoes, and jacket. Appellant vehemently denied having
had any intent that the group would obtain James’s money by any means other than
pretending to use it to buy drugs for James.
Appellant, Lane, and Anderson were charged with murder and burglary.
Appellant’s trial was severed from that of Lane and Anderson,12 and did not begin until
October 22, 2002. In an amended information, appellant was charged with felony murder
(Pen. Code, § 187, subd. (a)13) and second degree burglary (§§ 459; 460, subd. (b)). On
December 9, 2002, the jury found appellant guilty on both counts.
On January 24, 2003, appellant was sentenced to an indeterminate term of 25
years to life on the murder conviction, and the upper term of three years on the burglary
12 Lane and Anderson were tried jointly, and both had been convicted by the time
appellant’s trial began. Their convictions were affirmed by Division Five of this court in
separate unpublished opinions. (People v. Lane (Dec. 1, 2003, A099502); People v.
Anderson (Dec. 19, 2003, A099476).)
13 All further unspecified references to statutes are to the Penal Code.

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conviction, to be served consecutively to the indeterminate term. This timely appeal
followed.
DISCUSSION
A. Jury Instructions on Felony Murder
With respect to the murder charge against appellant, the jury was instructed, based
on CALJIC No. 8.27, that “If a human being is killed by any one of several persons
engaged in the commission or attempted commission of the crime of robbery or burglary,
all persons, who either directly and actively commit the act constituting that crime, or
who with knowledge of the unlawful purpose of the perpetrator of the crime and with the
intent or purpose of committing, encouraging, or facilitating the commission of the
offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty
of murder of the first degree, whether the killing is intentional, unintentional, or
accidental.” In his opening brief on appeal, appellant argued that this instruction was
erroneous because neither it nor any of the court’s other instructions informed the jury
that the killing had to be in furtherance of a common design or scheme on the part of
appellant and the actual killer (i.e., Lane).
During the pendency of the appeal, however, the California Supreme Court
decided People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt), which “clarif[ied] a nonkiller’s
liability for a killing ‘committed in the perpetration’ of an inherently dangerous felony
under Penal Code section 189’s felony-murder rule. [Citation.]” (Id. at p. 193,
fn. omitted.) In so doing, the court rejected the argument that liability for felony murder
requires that the killing be in furtherance of a common design. Rather, the court held that
“[t]he causal relationship [required by the felony-murder rule] is established by proof of a
logical nexus, beyond mere coincidence of time and place, between the homicidal act and
the underlying felony the nonkiller committed or attempted to commit.” (Ibid.) Thus,
although the felony-murder rule does not make a nonkiller liable for “homicidal acts that
are completely unrelated to the felony for which the parties have combined” (id. at
p. 201), neither does “the felony-murder rule . . . require proof that the homicidal act
furthered or facilitated the felony[; it requires] only that a logical nexus exist between the

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two.” (Id. at p. 203.) The court therefore rejected the contention that the jury instructions
on felony murder given in Cavitt were “deficient merely because the ‘in furtherance’
phrasing was omitted.” (Ibid.)
In keeping with this analysis, the court held that CALJIC No. 8.27, the source of
the felony-murder instruction given in Cavitt as well as in the present case, “adequately
apprise[s] the jury of the need for a logical nexus between the felonies and the homicide
in this case. To convict, the jury necessarily found that ‘the killing occurred during the
commission or attempted commission of robbery or burglary’ by ‘one of several persons
engaged in the commission’ of those crimes. The first of these described a temporal
connection between the crimes; the second described the logical nexus.” (Cavitt, supra,
33 Cal.4th at p. 203, italics omitted.)
After the issuance of the Supreme Court’s opinion in Cavitt, we requested
supplemental briefs regarding its impact on the present case. In his supplemental briefs,
appellant argues that, even under Cavitt, his felony-murder conviction was based on
insufficient jury instructions. Specifically, he contends that the jury could have found
that Lane’s admitted racial animus toward James broke the causal link between the
parties’ shared plan to steal James’s money and Lane’s murder of James, and that the jury
instructions did not adequately inform the jury that such a causal link was necessary.
(See Cavitt, supra, 33 Cal.4th at pp. 210-212 (Werdegar, J., conc.) [concurring in result
on basis of harmless error, but suggesting that felony-murder instructions be clarified “to
clearly explain that murder complicity under the felony-murder rule requires not only a
temporal relationship between commission of the felony and the killer’s fatal act, but also
a logical or causal one”]; id. at p. 213 (Chin, J., conc. [agreeing that existing instruction is
adequate, but suggesting that courts should more clearly inform the jury of the need for a
logical connection between the killing and the underlying felony].)
In Cavitt, however, the Supreme Court rejected a very similar contention that the
causal link needed for felony murder was broken by the animus harbored toward the
victim by the person whom the defendants claimed was the actual killer. Concededly,
there is a factual difference between Cavitt and this case, in that here it is undisputed that

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appellant was not the actual killer. This difference has no bearing, however, on the
degree of causal connection between the killing and the predicate felony.
As appellant’s supplemental reply brief acknowledges, even if we were to hold
that the felony-murder instructions given in this case were ambiguous, and might have
been interpreted by the jury so as to be legally erroneous, we would still be obligated to
inquire “whether there is a reasonable likelihood that the jury . . . applied the challenged
instruction[s] in a way” that violated appellant’s constitutional rights. (Boyde v.
California (1990) 494 U.S. 370, 380.) On the record in this case, we find no such
likelihood.
There was strong evidence of a causal connection, “beyond mere coincidence of
time and place” (Cavitt, supra, 33 Cal.4th at p. 213 (Chin, J., conc.)), between the
robbery or burglary14 that appellant helped to plan, and the killing of James – who was
the target of that felony – during the course of that crime. Among other facts supporting
this connection, perhaps the most telling is that appellant was present when Lane
borrowed Ladue’s knife to take with him to the motel, and raised no objection to his
doing so. The overall record simply does not permit us to discern a reasonable likelihood
that the jury found James was killed solely because of Lane’s racial animus, rather than
because of any causal connection with the robbery or burglary, but nonetheless was
misled by the instructions into finding appellant guilty of felony murder.
B. Admission of Evidence of Appellant’s Use of Racial Slurs
As already noted, Russell testified that after James was murdered, appellant used a
highly inflammatory racial slur to refer to James. Appellant’s trial counsel objected to
14 There is some ambiguity in the record as to whether the plan in which appellant
participated was that Lane and Anderson would rob James, or that they would gain entry
to his motel room through the offer (real or feigned) of Anderson’s services, and then
steal his money without the use of force or fear. Even the latter plan contemplated acts
constituting burglary, however (see People v. Nguyen (1995) 40 Cal.App.4th 28, 30, 35
[entry into homes with owners’ consent, with intent to steal property by giving worthless
check in exchange for it, constituted burglary]), and thus constituted a factually sufficient
basis for the jury’s verdict of felony murder if the requisite causal connection was shown.
Appellant does not argue otherwise.

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the admission of this evidence as more prejudicial than probative under Evidence Code
section 352.15 The trial judge was unwilling to instruct the witness to use another term in
relating what appellant had said to him. The prosecutor argued, in effect, that appellant’s
overall admission to Russell was relevant to show appellant’s guilt, and that his
identification of the victim by race bolstered this by demonstrating that appellant was
aware of the victim’s identity. The trial judge agreed that because the statement was
made in the context of a larger conversation in which appellant admitted to Russell that
he had helped set up the robbery, it was relevant to the felony murder charge. He also
reasoned that in the overall context of the case, appellant’s isolated statement was
unlikely to cause the jurors to have such a strong emotional reaction that they would not
be able to decide the case fairly. Accordingly, he rejected appellant’s section 352
argument.
Appellant now argues that this ruling was in error. He acknowledges that the
applicable standard of review is abuse of discretion. (See, e.g., People v. Coddington
(2000) 23 Cal.4th 529, 587, overruled on other grounds, Price v. Superior Court (2001)
25 Cal.4th 1046, 1069, fn. 13; People v. Quartermain (1997) 16 Cal.4th 600, 628
(Quartermain). He urges, however, that in this case the challenged evidence was so
inflammatory, and so nearly irrelevant, that this standard was met, and that the error was
so prejudicial as to require reversal.
Appellant relies primarily on People v. Harris (1998) 60 Cal.App.4th 727
(Harris). In that case, the defendant was accused of nonviolent sexual offenses involving
licking and fondling an incapacitated woman and a former consensual sexual partner.
Under section 1108, which allows evidence of prior sex offenses in prosecutions for sex
crimes, the trial court admitted evidence of a violent sexual offense committed by the
defendant 23 years earlier. The Court of Appeal reversed, holding that the evidence
should have been excluded under section 352 because it’s extremely inflammatory nature
outweighed its marginal relevance. (Id. at pp. 737-742.)
15 All references to statutes in this section of our opinion are to the Evidence Code.

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In Harris, the court discussed five factors to be considered in weighing probative
value against prejudicial effect under section 352, and found that all but one of them
weighed heavily against admission. The challenged evidence was “inflammatory in the
extreme” (Harris, supra, 60 Cal.App.4th at p. 738, italics in original); was likely to
confuse the jury (id. at pp. 738-739); was very remote in time (23 years earlier) (id. at
p. 739); and lacked any significant probative value on a disputed issue (id. at pp. 739-
741). The only factor favoring admission was that the presentation of the evidence did
not occupy much time. (Id. at pp. 739, 741.)
We find Harris distinguishable. In the present case, the challenged evidence,
though certainly unfavorable, was nowhere near as inflammatory as the graphic
testimony of the defendant’s prior victim that was involved in Harris. It was not likely to
confuse the jury, was closely connected in both time and substance to the crimes of which
appellant was accused, and required even less time to present than the evidence at issue in
Harris. Admittedly, its probative value was fairly negligible, even as part of the overall
context of appellant’s admissions to Russell, because the latter were essentially
cumulative of Lane’s extensive eyewitness testimony, as well as appellant’s own
statements to the police and the testimony of the other witnesses. Nonetheless, we are
not persuaded that the section 352 calculus employed by Harris yields the same result in
the present case.
More to the point is Quartermain, supra, 16 Cal.4th 600, on which respondent
relies. In that case, the Supreme Court rejected a capital defendant’s argument that the
trial court erred in not excluding evidence of his use of racial epithets to refer to the
murder victim during his interviews with police. (Id. at pp. 627-629.) The court
reasoned that “the racial epithets were not so inflammatory that their probative value was
substantially outweighed by their potential for undue prejudice,” and that “[w]hile
offensive, the use of such language by a defendant is regrettably not so unusual as to
inevitably bias the jury against the defendant,” especially where “the racial epithets were
only a small portion of the evidence,” and “the prosecutor did not argue that [the]
defendant should be convicted because he was a racist.” (Id. at p. 628.)

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There is one significant difference between this case and Quartermain. Here,
there is no evidence that appellant knew that James was Black until after his murder. On
the contrary, the record indicates that prior to Lane and Anderson’s entry into James’s
motel room, none of them was aware of his race. Thus, even if appellant’s use of racial
epithets to refer to James after his death indicated that appellant harbored racial animosity
in general, there was no evidence indicating that his prejudices played, or even could
have played, a role in his complicity for James’s murder. Accordingly, the probative
value of the evidence here was far more tenuous than it was in Quartermain.
Nonetheless, when we view the present case in light of the Quartermain court’s overall
analysis of the section 352 issue, we reach the same result here.
Moreover, even if we were to find an abuse of discretion in the admission of the
evidence, we still would not find that error to be a basis for reversing appellant’s
convictions. As the Supreme Court put it in People v. Coddington, supra, even if a trial
court is held to have abused its discretion in admitting evidence, “reversal of the ensuing
judgment is appropriate only if the error has resulted in a manifest miscarriage of justice.
[Citations.]” (23 Cal.4th at pp. 587-588.) Given the strength of the overall case against
appellant here, we are not persuaded that the admission of tangential evidence of his use
of a racial epithet on one occasion was “so prejudicial that it denied [appellant] a fair trial
in violation of his right to due process.” (Quartermain, supra, 16 Cal.4th at p. 629.)
C. Trial Counsel’s Failure to Object to Admission of Appellant’s Interview
As already noted, appellant was interviewed at the police station about a week
after the murder, and the police did not give appellant any Miranda warnings before or
during the questioning. Appellant’s trial counsel did not object to the playing of a tape
recording of the interview for the jury. Before us, appellant argues that the admission of
appellant’s interview was prejudicial error, and that appellant’s trial counsel therefore
rendered ineffective assistance in failing to object.
“To secure reversal of a conviction for ineffective assistance of counsel, a
defendant must establish that counsel’s performance fell below an objective standard of
reasonableness and that, to a reasonable probability, defendant would have obtained a

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more favorable result absent counsel’s shortcomings. [Citation.] If the record on appeal
fails to show why counsel acted or failed to act in the instance asserted to be ineffective,
unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation, the claim must be rejected on appeal.
[Citation.] [Wh]ere the record . . . hints at the existence of some tactical reason for
counsel’s decision . . . [, or a]t least, the record fails to eliminate that possibility[, the]
defendant’s claim must fail for purposes of [direct] appeal.” (People v. Kraft (2000) 23
Cal.4th 978, 1068-1069.) Thus, as appellant acknowledges, we cannot reverse his
conviction on the basis of ineffective assistance of counsel unless the record precludes
the possibility that there was a reasonable, informed tactical basis for his trial counsel’s
failure to object to the admission of his interview. (See People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-268; People v. Wilson (1992) 3 Cal.4th 926, 936.)
Respondent suggests one possible basis in the record indicating that trial counsel’s
failure to object was a reasonable tactical choice. As respondent points out, the record is
clear that appellant went to the police station voluntarily, and was not arrested or
handcuffed prior to his interview. Thus, respondent argues, trial counsel may have
concluded that any objection would have lacked merit, because appellant’s interview did
not qualify as a custodial interrogation triggering the need for Miranda warnings. We
find merit in this suggestion.
We note, in addition, that our review of the record reveals another potential
explanation. Appellant’s trial counsel made extensive references to the interview both in
his opening statement and in his closing argument. Essentially, he used the statement to
enable him to explain appellant’s side of the story to the jury without requiring appellant
to waive his right against self-incrimination and subject himself to cross-examination.
Thus, the record here reveals not one but two possible tactical reasons for counsel’s
decision not to object to the admission of appellant’s interview. Accordingly, we must
reject appellant’s ineffective assistance of counsel claim.

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D. Sentencing Issues
For his murder conviction, appellant received an indeterminate sentence of 25
years to life, with the possibility of parole. For his burglary conviction, appellant was
sentenced to the three-year upper term. The trial judge ordered the determinate and
indeterminate sentences to be served consecutively, starting with the determinate term.
At the sentencing hearing, the trial judge specifically singled out three aggravating
factors that he was relying upon “in particular” in imposing the upper term for the
burglary conviction: (1) that appellant’s prior convictions as an adult were numerous and
quite serious; (2) that appellant was on a grant of felony probation when the current
offense was committed; and (3) that appellant’s prior performance on probation was
unsatisfactory. The judge indicated, however, that he was also relying all of the
aggravating factors identified in the probation report, which included the following
additional factors: (4) that the crime involved a high degree of callousness in that
appellant returned to the location where the victim was murdered; (5) that appellant
induced others, including Harrison, to return to the murder scene and commit burglary;
(6) that the crime was carried out in a manner that revealed planning; and, (7) that
appellant had engaged in violent conduct that revealed him to be a serious danger to
society.
During the pendency of this appeal, the United States Supreme Court decided in
Blakely, supra, __ U.S. __ [124 S.Ct. 2531] that all facts (other than a prior conviction)
allowing a criminal defendant’s sentence to be increased beyond an otherwise applicable
statutory maximum must be proved to a jury beyond a reasonable doubt. We therefore
requested supplemental briefs regarding the applicability of Blakely to this case.
Appellant’s opening supplemental brief argues that both the judge’s selection of
the aggravated term on the burglary conviction, and the judge’s decision to impose
consecutive sentences, violated the stricture of Blakely, because both decisions were
based in part on facts that were not proved to a jury beyond a reasonable doubt. He
further contends, citing Hoffman v. Arave (9th Cir. 2001) 236 F.3d 523, 541-542, that if
this court finds Blakely error as to some of the aggravating factors, but not as to others,

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the case must be remanded for resentencing if even a single invalid factor had a
substantial and injurious effect or influence on the court’s sentencing decision.
Respondent’s supplemental brief argues that appellant’s Blakely argument was
forfeited by his failure to object at his sentencing. We recently rejected the same
argument, premised on the same authorities, in an opinion in which the California
Supreme Court has granted review. (People v. Butler (2004) 122 Cal.App.4th 910, 918-
919, review granted Dec. 15, 2004, S129000.) Pending final word from the California
Supreme Court, we see no reason either to depart from that holding here, or to reiterate its
reasoning. Respondent also argues that Blakely does not apply to the imposition of an
aggravated term under California’s determinate sentencing law. Again, we have rejected
this argument previously in other cases, and we shall adhere to that holding here without
repeating our reasons.16
Alternatively, respondent argues that even if Blakely applies, there is no need to
reverse, because the judge’s choice of the aggravated term was based in part on
recidivism-based factors that need not be found by a jury under Almendarez-Torres v.
United States (1998) 523 U.S. 224 (Almendarez-Torres).17 Again, pending the issuance
of the Supreme Court’s opinions in Black and Towne, we adhere to our previously
expressed disagreement with respondent’s position that the presence of one or more non-
Blakely aggravating factors entirely insulates a sentence from Blakely review.
In our view, when a trial judge’s selection of the aggravated term is based in part
on factors that Blakely requires be decided by a jury, we will apply the “Chapman test”
(Chapman v. California (1967) 386 U.S. 18, 24) for harmless error, which requires us to
16 This issue is currently pending before the California Supreme Court in People v.
Towne, review granted July 14, 2004, S125677, and People v. Black, review granted July
28, 2004, S126182.
17 Appellant recognizes that some of the factors relied on by the judge in selecting
the upper term were recidivism-based factors, but contends that the rationale of
Almendarez-Torres was undercut by Blakely and is no longer good law. In light of our
conclusion, post, that Blakely requires resentencing in this case, we need not reach this
issue.

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determine whether the failure to obtain jury determinations as to the aggravating factors
relied upon by the trial court was harmless beyond a reasonable doubt. (See People v.
Sengpadychith (2001) 26 Cal.4th 316, 326 [Chapman standard applicable to claims of
sentencing error under Apprendi].) The trial judge’s selection of the upper term in this
case was based in part on factors that plainly must be decided by a jury under Blakely,
including the degree of callousness involved in the crime, appellant’s inducement of
others to become involved, and appellant’s having engaged in violent conduct making
him a serious danger to society. In the present case, we are unwilling to find that, beyond
a reasonable doubt, a jury would have made findings to support these aggravating factors.
Thus, those aggravating factors cannot be used to support the trial court’s sentencing
choice in this case.
This conclusion does not end our analysis, however, because “[w]hen a trial court
has given both proper and improper reasons for a sentence choice, a reviewing court will
set aside the sentence only if it is reasonably probable that the trial court would have
chosen the lesser sentence had it known that some of its reasons were improper.” (People
v. Price (1991) 1 Cal.4th 324, 492.) Further, a single factor in aggravation is sufficient to
support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, of the seven aggravating factors identified in the probation report, only one –
appellant’s having been on felony probation at the time of the offense – falls within the
scope (if broadly construed) of the prior conviction exception recognized in Blakely,
supra, 124 S.Ct. at p. 2536. (See also Apprendi v. New Jersey (2000) 530 U.S. 466, 488,
490 (Apprendi); Almendarez-Torres, supra, 523 U.S. 224.) True, two of the other factors
(numerousness and seriousness of prior convictions; unsatisfactory nature of performance
on probation) are recidivism-related, but they also include potentially subjective elements

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that, at least under the circumstances of this case,18 take them far enough beyond the bare
“fact of the prior conviction” (Blakely, supra, 124 S.Ct. at p. 2536; Apprendi, supra, 530
U.S. at p. 488) so as to bring them within the province of the jury under Blakely.
Because so many of the aggravating factors in the probation report, including two
out of the three upon which the trial judge particularly relied, were improperly considered
under Blakely, we cannot conclude on the record in this case that it is not reasonably
probable that the judge would have chosen a lesser sentence if he had considered only the
one valid aggravating factor we have identified. Accordingly, we must remand for
resentencing on the burglary count.
Finally, respondent argues that even if Blakely applies to the trial judge’s selection
of the aggravated term on the burglary count, it does not apply to the trial judge’s
decision to make the sentences on the other counts consecutive rather than concurrent.
Appellant acknowledges that the weight of authority supports respondent’s position on
this issue. We concur with all of the other Courts of Appeal that have weighed in on the
issue so far, that Blakely does not apply to the trial court’s determination to impose
consecutive rather than concurrent sentences.19 (See, e.g., People v. White (2004) 124
Cal.App.4th 1417, 1441, petn. for review pending, petn. filed Jan. 18, 2005; People v.
Dalby (2004) 123 Cal.App.4th 1083, 1102-1103, petn. for review pending, petn. filed
Dec. 9, 2004; People v. Jaffe (2004) 122 Cal.App.4th 1559, 1588-1589, petn. for review
pending, petn. filed Nov. 19, 2004.) Accordingly, upon resentencing the trial judge will
18 Appellant concedes that the fact of his prior convictions falls within the Apprendi
exception, but not that their numerousness or seriousness does so. In fact, it appears from
the probation report that appellant was convicted of felonies in two earlier cases: in 1997
for receiving stolen property and possession of a controlled substance, and in 1999 for
possession of a controlled substance. This record does not permit us to conclude beyond
a reasonable doubt that a jury would have found appellant’s prior felony convictions to
have been either numerous or of increasing seriousness.
19 This issue is currently pending before the California Supreme Court in People v.
Black, supra, review granted July 28, 2004, S126182, as well as a number of other cases.

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remain free to order that the indeterminate sentence for felony murder be served
consecutively to the determinate sentence for burglary.
DISPOSITION
The matter is remanded for resentencing on the burglary conviction pursuant to
Blakely, supra, 542 U.S. ___. In all other respects, the judgment is affirmed.
_________________________
Ruvolo, J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.

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