P. v. Powell

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Filed 1/25/05 P. v. Powell 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
GREGORY ANTHONY POWELL,
Defendant and Appellant.
A103286
(Solano County
Super. Ct. No. VCR161797)
I. INTRODUCTION
This is an appeal from appellant Powell’s conviction, after a jury trial, of
attempted voluntary manslaughter and assault with a deadly weapon. The jury found two
charged enhancements true: one for a personal use of a firearm and the other for infliction
of great bodily injury. Appellant also admitted the truth of an allegation of two prior
felony convictions. He was sentenced to a total prison term of 19 years, six months. He
appeals, initially claiming error (1) in admission of the preliminary hearing testimony of
the victim, (2) application of Wheeler/Batson principles, (3) an instruction on attempted
voluntary manslaughter, and (4) denial of presentence custodial credits.
Via a supplemental brief, appellant urges that the court’s imposition of the upper
terms on one of the counts and one of the enhancements violates the United States
Supreme Court’s recent ruling in Blakely v. Washington (2004) ___ U.S.___, [124 S.Ct.
2531] (Blakely). We reverse and remand for reconsideration of the sentence imposed (1)
in view of Blakely and (2) regarding custody credits. Otherwise we affirm.

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II. FACTUAL AND PROCEDURAL BACKGROUND 1
Starkisha Green was shot and wounded in the parking lot of the Motel 7 in Vallejo
at about 7 p.m. on July 5, 2002. She told a Vallejo police officer, who responded to
reports of the shooting, that the man who shot her was an African American named “G”.
Both Green and Melissa Lujan, who had driven Green to the motel, later identified the
shooter as appellant from photo lineups.
When Lujan’s car entered the parking lot of the Motel 7, they encountered a car
exiting the parking lot driven by one Nicole Fonseca, with whom Green had had a prior
altercation. Appellant was a passenger in Fonseca’s car.
As the cars pulled alongside each other, Green and Fonseca started arguing, and
soon an argument developed between Green and appellant, with Green accusing appellant
of stealing some jewelry. As Lujan tried to drive away, Fonseca’s car blocked Lujan’s
car from leaving. Appellant and another African-American male then jumped into the
back seat of Lujan’s vehicle, whereupon Green tried to get out of the car. While Green
was attempting to get out of the vehicle, two shots were fired. Appellant continued to
shoot at her as she ran away from the cars.
Green was helicoptered to John Muir Hospital in Walnut Creek, where doctors
found two bullets in her, one in her stomach and one in her arm. A .22 caliber bullet was
removed from Green’s stomach.
The following day, July 6, 2002, another Vallejo police officer stopped appellant
for driving without a license plate. A female was in the car with him. Appellant lacked
identification. He said his name was John Lashawn Harris, but did not know his own
age. The officer arrested him and, thereafter, found a loaded .22 caliber revolver under
the right-front passenger seat. The gun held nine bullets, but had four bullets and four
empty casings inside. In the passenger’s purse was another single round.
1 In view of the limited number and nature of the issues appellant raises on appeal,
we will detail only those facts relevant to a consideration of those issues.

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On September 19, 2002, the Solano County District Attorney filed an information
charging appellant with two counts, the first for attempted murder and the second for
assault with a deadly weapon. Both counts included allegations of personal use of a
firearm and personal infliction of great bodily injury, as well as an allegation of two prior
felony convictions after which appellant had not remained free from prison custody for
five years. (Pen. Code, §§ 187, subd. (a), 245, subd. (a)(2), 664, 667.5, subd. (b) &
(c)(8), 1192.7, subd. (c)(8) & (23), 1203.095, 12022.5, subd. (a)(1), 12022.53, subd. (b),
(c) & (d), 12022.7, subd. (a).)2
Appellant pled not guilty and denied the various allegations on September 30,
2002.
The case was tried to a jury over three days starting on May 7, 2003. Lujan, who
had driven Green to the motel, testified for the prosecution. Green herself could not be
located, according to the prosecution; accordingly, her preliminary hearing testimony was
read to the jury.
The prosecution also called the motel’s manager, three Vallejo police officers
involved in the events of July 5 and 6, 2002, and a deputy sheriff/criminalist who testified
regarding the similarity between the bullet recovered from Green’s stomach and the .22
revolver found in the car appellant was driving. On the last trial day, the prosecution
called the court’s own bailiff and a Solano County correctional officer who, in
combination, testified that, during the trial, appellant had passed a note to another
African-American detainee, one Andre Bryant, asking him to “be my alibi witness” for
July 5, 2002. This note was read to the jury.
Appellant’s trial counsel presented three witnesses, a motel employee named
Summerville and two John Muir Medical Center doctors. Summerville testified that,
after Green had been shot, she did not identify the shooter by name or other
identification. One of the doctors testified that Green told her she used both heroin and
2 All subsequent statutory references are to the Penal Code, unless otherwise
noted.

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methamphetamine, and the other that she had admitted smoking heroin earlier on July 5,
2002.
The prosecution recalled one of the Vallejo police officers who had previously
testified as a rebuttal witness. He testified that, when he interviewed Summerville
immediately after the shooting, he recalled Green identifying the shooter as “G.”
After a day and a half of deliberation, the jury returned verdicts finding appellant
not guilty of attempted murder as charged in count I, but guilty of attempted voluntary
manslaughter and also guilty of assault with a deadly weapon as charged in count II.
Additionally, it found true each of the charged enhancements, except that relating to the
two charged prior felony convictions (for which appellant was imprisoned at the same
time). Appellant admitted those.
The trial court denied appellant’s motion for a new trial on July 2, 2003; on July
11, 2003, it sentenced him to a total prison term of 19 years and six months. This
consisted of the upper term of five years, six months, for attempted voluntary
manslaughter, an upper term of ten years for personal use of a firearm, three years for the
infliction of great bodily injury, and one year for the prior prison term enhancement. All
of these sentences pertained to count I of the information; the court stayed any sentence
under count II pursuant to section 654.
Appellant filed a timely notice of appeal.
III. DISCUSSION
A. Use of the Preliminary Hearing Testimony of Green
Before trial, the prosecution moved for permission to read Green’s testimony at
the preliminary hearing to the jury. This motion (which was opposed by appellant) was
accompanied by many pages of exhibits from the files of the district attorney’s
investigator showing extensive but unsuccessful efforts to subpoena Green in both
Vallejo and Sacramento. That investigator testified at a pretrial hearing as to these
efforts. The trial court found there was due diligence in attempting to serve Green, a
finding which appellant does not challenge here. Rather, appellant argues he did not have
an adequate opportunity to cross-examine Green at the preliminary hearing.

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That hearing took place on September 9, 2002; appellant was represented by the
same counsel that defended him at trial. Green testified for the prosecution as to the
events of July 5, 2002, at the Vallejo Motel 7. That direct examination is recorded in
approximately 10 pages of the transcript of that hearing. Appellant’s counsel’s cross-
examination of Green covers 12 pages of the same transcript. He got her to admit that
she was in possession of heroin on the day in question and that she knew appellant only
as “G.”
During the course of this cross-examination, the prosecutor made seven objections
to questions posed to Green by appellant’s counsel; four of them were sustained and the
other three overruled. One of the objections sustained was that the question posed was
compound––which it clearly was. The other three were sustained on the basis that they
sought discovery of issues not directly relevant to the crimes charged and, in one
instance, also asked for hearsay.
On appeal, appellant claims his counsel was denied an opportunity to adequately
cross-examine Green at the preliminary hearing. More specifically, he contends that the
magistrate’s “rulings restricting cross-examination at the preliminary hearing denied
appellant an adequate opportunity to cross-examine this shaky witness.”
The governing statute on this issue provides: “(a) Evidence of former testimony is
not made inadmissible by the hearsay rule if the declarant is unavailable as a witness
and . . . [¶] (2) The party against whom the former testimony is offered was a party to the
action or proceeding in which the testimony was given and had the right and opportunity
to cross-examine the declarant with an interest and motive similar to that which he has at
the hearing.” (Evid. Code, § 1291, subd. (a)(2).)
Our Supreme Court’s most recent interpretation of this statute was in People v.
Zapien (1993) 4 Cal.4th 929, 974-976. There, a convicted defendant contended he had
been denied his right to confront an important witness because, based on her assertion of
her privilege against self-incrimination, she had been declared unavailable and her
preliminary hearing testimony read to the jury. The defendant argued on appeal that his
motive for cross-examining that witness at the preliminary hearing “differed materially

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and substantially” from his motive for doing so at trial, and thus admission of her
preliminary hearing testimony was error.
The court, in an opinion authored by then Associate Justice George, disagreed,
holding: “Frequently, a defendant’s motive for cross-examining a witness during a
preliminary hearing will differ from his or her motive for cross-examining that witness at
trial. For the preliminary hearing testimony of an unavailable witness to be admissible at
trial under Evidence Code section 1291, these motives need not be identical, only
‘similar.’ [Citation.] Admission of the former testimony of an unavailable witness is
permitted under Evidence Code section 1291 and does not offend the confrontation
clauses of the federal or state Constitutions—not because the opportunity to cross-
examine the witness at the preliminary hearing is considered an exact substitute for the
right of cross-examination at trial [citation], but because the interests of justice are
deemed served by a balancing of the defendant’s right to effective cross-examination
against the public’s interest in effective prosecution. [Citations.] [¶] Defendant’s interest
and motive for cross-examining Inez Blanco during the preliminary hearing were
sufficiently similar to those existing at trial so as to permit the admission of Blanco’s
preliminary hearing testimony. On both occasions, Blanco’s testimony relating her
contacts with defendant the day preceding the murder, defendant’s need for money, and
the disappearance of Blanco’s automobile near the time of the murder, had the same
tendency to establish defendant’s guilt. Defendant’s interest and motive in discrediting
this testimony was identical at both proceedings. Defense counsel’s testimony that he
chose, for strategic considerations, not to vigorously cross-examine Blanco does not
render her former testimony inadmissible. As long as defendant was given the
opportunity for effective cross-examination, the statutory requirements were satisfied; the
admissibility of this evidence did not depend on whether defendant availed himself fully
of that opportunity. [Citations.]” (People v. Zapien, supra, 4 Cal.4th at p. 975; to the
same general effect, see: People v. Smith (2003) 30 Cal.4th 581, 611-612; People v.
Samayoa (1997) 15 Cal.4th 795, 849-852; People v. Jones (1998) 66 Cal.App.4th 760,

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766-769; People v. Lepe (1997) 57 Cal.App.4th 977, 982-985 (Lepe), disapproved on
other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3)
As noted above, three substantive objections by the prosecution to defense
counsel’s preliminary hearing cross-examination of Green were sustained. They were to
these questions: (1) “Do you know if Nicole [Fonseca] had any of her stuff located in
room 135?”3; (2) “Do you know Andre Bryant?”; and (3) “Was that relationship [with
Fonseca] based on the drug transactions?”
Appellant argues that precluding defense counsel from getting answers to these
questions prevented him from attacking Green’s credibility as to, e.g., why she was at the
motel at all, her denials that she was there looking for drugs, and her assertion that she
did not know why appellant shot her. We disagree. First of all, the trial court was clearly
correct in ruling that inquiries during the course of a preliminary hearing which are
apparently motivated by a desire for discovery regarding tangential issues are
inappropriate. This does not, however, preclude the use of preliminary hearing testimony
at trial provided all of the other requirements of Evidence Code section 1291, subdivision
(a)(2) are met. (See, e.g., Lepe, supra, 57 Cal.App.4th at pp. 982-985.)
Two of the questions to which objections were sustained (nos. (1) and (3) above)
related to whether Green’s relationship with Fonseca was connected with drugs.4
Appellant contends he should have been permitted to pursue this point to undermine
Green’s credibility. We are unpersuaded. The jury in this case was well-acquainted with
the fact that Green was a regular drug user. She admitted during cross-examination in the
preliminary hearing that, contrary to her answer to a question from the prosecutor a few
minutes earlier, she was indeed in possession of some “tar heroin” on the day in question.
3 Green had testified earlier that she went to the Motel 7 to visit her aunt, who was
in room 135.
4 The third question to which an objection was sustained (“Do you know Andre
Bryant?”) was clearly lacking in relevance, absent some offer of proof by defense
counsel––or even a slight verbal hint to the court––as to who Bryant was, his possible
connection with the events of July 5, or some other reason as to why Green’s knowledge
of him was at all relevant to the issue of who shot her.

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In the actual trial, Lujan, the driver of the car in which Green was riding, admitted on her
direct examination that Green had told Lujan she was “looking for . . . drugs” on the day
in question. On cross-examination, Lujan admitted seeing Green use both heroin and
“meth” that day. Additionally, two John Muir Medical Center doctors were, as noted
above, called as defense witnesses. One testified that, after her admission there, Green
admitted using both heroin and methamphetamine; the other testified that Green admitted
using heroin.
Further, defense counsel’s closing argument to the jury concentrated heavily on
Green’s credibility. He cited inconsistencies in her preliminary hearing testimony, her
absence from the trial, and the possible impact on her powers of observation and
recollection of her apparent regular drug use.
As a result of all this, the jury could not have been under any illusions concerning
Green’s involvement with drugs or even the possibility that her desire to visit Motel 7
and/or her altercation with Nicole Fonseca may have had something to do with that
subject. Thus, the fact that defense counsel was not permitted to pursue these topics at
the preliminary hearing was not prejudicial. And, in any event, the issue before the jury
was not Green’s drug use or why she was at Motel 7 on July 5 but, rather, whether
appellant shot and wounded her then and there. Defense counsel was not foreclosed from
cross-examining Green on any aspect of that issue at the preliminary hearing.
B. Alleged Wheeler/Batson Error
During voir dire, the prosecutor peremptorily challenged an African-American
juror, Patricia G. She was one of 12 jurors excused at the behest of the prosecution; 16
were challenged by the defense.
After the challenge to Patricia G., defense counsel asked to approach the bench
where an unreported conversation occurred. A few minutes later, after the jury panel had
been excused, the following reported exchange took place:
“THE COURT: . . . Mr. Spieckerman [defense counsel], you had an issue you
would like to put on the record?

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“MR. SPIECKERMAN: Yes, your Honor. Just very briefly. When Ms. Moore
[prosecutor] dismissed Patricia G[.] after having passed a few times, and Ms. G[.] is an
African-American, she has a close personal friend in the Department of Corrections,
answered all of the questions that are asked on the questionnaire as well as the questions
that Counsel may have posed to her in a fashion that certainly showed she would be a fair
and impartial juror, and then was disqualified or dismissed by Ms. Moore, I realized, as I
indicated to the Court under Wheeler, I need to show a series of that sort of conduct. But
it is also incumbent upon me to state when I think there is a problem. Any of the other
witnesses or jurors that may have been African-Americans, I would understand any kind
of a reason she had for those because hearing their answers. But this particular person I
think would have been a very good juror, and I wanted to just make the record to get it
started.
“THE COURT: And that is all you are asking of the court at this time?
“MR. SPIECKERMAN: Yes, your Honor.
“THE COURT: You have made your record.”
Appellant now contends the trial court committed prejudicial error by failing to
find a prima facie case of error under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)
and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) or, alternatively, to make further
inquiry into that issue. We disagree; we agree, rather, with the People that there was both
no proper objection on Wheeler/Batson grounds5 and no trial court error in any event.
A simple reading of the excerpt from the voir dire transcript quoted above makes
clear that there simply was no Wheeler motion made, much less a proper one. Our
5 Preliminarily, the People take the position that we should not even consider
whether there was any objection raised on Batson grounds, because defense counsel did
not mention that case. We do not need to reach this issue, because of our holding (see the
following paragraphs) that no Wheeler motion was properly made. But, if we found it
had been, we would not agree with the People. We read our Supreme Court’s latest
statements on this subject as effectively saying that once a Wheeler motion is made, a
Batson motion is also. (See People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) Besides,
and as our Supreme Court has also recently made clear, the two cases articulate the same
standard. (See, e.g., People v. Johnson (2003) 30 Cal.4th 1302, 1312-1318.)

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Supreme Court has been consistent in putting the burden on the defendant in the trial
court to raise the issue of discriminatory exclusion of prospective jurors in the proper
way. In Wheeler itself, the court wrote: “If a party believes his opponent is using his
peremptory challenges to strike jurors on the ground of group bias alone, he must raise
the point in timely fashion and make a prima facie case of such discrimination to the
satisfaction of the court. First, as in the case at bar, he should make as complete a record
of the circumstances as is feasible. Second, he must establish that the persons excluded
are members of a cognizable group within the meaning of the representative cross-section
rule. Third, from all the circumstances of the case he must show a strong likelihood that
such persons are being challenged because of their group association rather than because
of any specific bias.” (Wheeler, supra, 22 Cal.3d at p. 280, fn. omitted.)
What transpired here does not comply with these Wheeler mandates. Rather, this
record is similar to what the same court was faced with in People v. Gallego (1990) 52
Cal.3d 115 (Gallego), where it unanimously affirmed murder and kidnapping convictions
of the defendant. One of the issues he raised on appeal was Wheeler, asserting that “the
trial court committed prejudicial error by failing to make inquiry into his claim that the
prosecutor was using his peremptory challenges to remove Blacks from the jury.” (Id. at
p. 166.) There, the defendant, who was representing himself, brought a motion claiming
that there had been an under-representation of both African-Americans and ex-convicts
on the jury panels sent to the trial department. (See People v. Buford (1982) 132
Cal.App.3d 288.) At the conclusion of the hearing on that motion, he noted “that the
prosecution had disqualified all Blacks who ‘did hit the jury box.’” (Gallego, supra, 52
Cal.3d at p. 166.) On appeal, he claimed that the trial court’s failure to “‘inquire into his
comment requires reversal under Wheeler . . . .’” (Id. at p. 166.) The court disagreed,
stating: “Defendant failed even to raise a Wheeler claim, let alone establish a prima facie
case of misuse of peremptory challenges.” (Ibid.)6
6 Similarly, in People v. Montiel (1993) 5 Cal.4th 877, 909, the court held: “A
party who suspects improper use of peremptory challenges must raise a timely objection
and make a prima facie showing of strong likelihood that the opponent has excluded one

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Even if there was no clear-cut Wheeler motion, appellant argues that, at the
minimum, his counsel’s “for the record” statement “was more than sufficient to trigger
the court’s duty to inquire into the sufficiency of the prima facie showing.” Again, we
disagree. As the Supreme Court held in People v. Bolin (1998) 18 Cal.4th 297, 316-317
(Bolin), such a proposition “conflicts with the procedure set forth in Wheeler allocating to
the aggrieved party the burden of raising the point in a timely fashion and making a prima
facie case of impermissible discrimination. [Citation.] Whatever the obligations of the
trial court to control the jury selection process, the defendant must comply with
procedural prerequisites to preserve any error for appeal. [Citation.] Absent an
appropriate challenge to the prosecutor's exercise of peremptories, the issue is not
preserved. [Citation.]”
Further, even if we could construe defense counsel’s “for the record” comment
during voir dire as an appropriate Wheeler motion, there is no possible way that, based on
the record before us, we could review that issue. For example, we know that the
prosecution peremptorily challenged 11 other jurors besides Patricia G., but we do not
know how many of them, if any, were African-American. Similarly, we do not know the
racial mix of the 16 prospective jurors challenged by appellant. Finally, we do not know
how many, if any, African-Americans were ultimately seated as jurors or anything else
about the racial make-up of the jury.
Simply put, a Wheeler/Batson issue is not properly before us for appellate review.
Nor is appellant’s “fall-back” argument that defense counsel rendered ineffective
assistance by not making a Wheeler motion persuasive. As our Supreme Court has ruled
several times in similar situations, “the record affords no basis for concluding that
counsel’s omission was not based on an informed tactical choice.” (People v. Anderson
(2001) 25 Cal.4th 543, 569-570; see also Bolin, supra, 18 Cal.4th at p. 317.) The
“tactical choice” possibility is especially pertinent here because the juror in question had
or more jurors on the basis of group or racial identity.” (See also People v. Fuentes
(1991) 54 Cal.3d 707, 714.)

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an aunt employed by the U.S. Customs Service and a “best friend” who worked for the
California Department of Corrections and whom she saw “[t]wo or three times a week.”
Finally on this subject, and because the record before us contains no evidence
regarding either the use of other peremptory challenges or the ultimate make-up of the
jury, it is highly unlikely that any prima facie case of racial discrimination could have
been, much less could now be, established. As a result, no prejudice from any
conceivable ineffective assistance of counsel could be established. (See, e.g., People v.
Farnam (2002) 28 Cal.4th 107, 136-138; People v. Turner (1994) 8 Cal.4th 137, 167-
168.)
C. The Allegedly Defective Modification of CALJIC No. 8.40
Although the charge against appellant in count I of the information was attempted
murder, the prosecution provided the court with proposed instructions on the lesser-
included offense of attempted voluntary manslaughter. Defense counsel stated that he
“had no problem with that.” But then, a minute or so later, he noted that most of the
relevant voluntary manslaughter instructions used the words “killing of a human being,”
and that such was inappropriate when what was possibly at issue was attempted
manslaughter. After some dialogue back and forth between the court and counsel, all
agreed that the court could and would add to the pertinent proposed instructions (CALJIC
Nos. 8.40, 8.42, 8.43, and 8.50) the words “attempts,” “attempts to,” or “attempted.”
The ultimate problem with all of this was that, in the modified version of CALJIC
No. 8.40 given to the jury,7 the “conscious disregard for human life” language was
7 The modified version of CALJIC No. 8.40 given to the jury read (italics showing
addition): “Every person who unlawfully attempts to kill another human being without
malice aforethought but either with an intent to kill, or with conscious disregard for
human life, is guilty of attempted voluntary manslaughter in violation of Penal Code
section 192, subdivision (a). [¶] There is no malice aforethought if the attempt to kill
occurred upon a sudden quarrel or heat of passion. [¶] ‘Conscious disregard for life,’ as
used in this instruction, means that an attempted killing results from the doing of an
intentional act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his or her conduct endangers the life
of another and who acts with conscious disregard for life. [¶] In order to prove this

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retained. Clearly, neither the court nor counsel recognized that, whereas this language
would have been pertinent and proper in a pure voluntary manslaughter instruction, it was
not appropriate in one pertaining to attempted voluntary manslaughter.8
The People argue that any error here was both invited and harmless. We disagree
with the former argument but agree with the latter.
It is clear that defense counsel wanted the words “attempt,” “attempt to,” or
“attempted” added throughout the voluntary manslaughter instructions originally
proposed by the prosecutor. That, and only that, was the point of his insistence on
changes being made to the original CALJIC instructions. He never addressed the issue of
whether the modified version of CALJIC No. 8.40 which was going to be read to the jury
should or should not retain the “conscious disregard for human life” words used in the
first and third sentences of the instruction. The only reference to those words was by the
court, which indicated an intent to retain them but add the word “attempted” to the third
sentence. Defense counsel was never asked if he agreed with that intention, nor did he
either volunteer or imply such agreement. In those circumstances, we cannot and do not
find invited error, because “merely acceding to an erroneous instruction does not
constitute invited error.” (People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20; cf. also
People v. Wickersham (1982) 32 Cal.3d 307, 333-335, overruled on other grounds in
People v. Barton (1995) 12 Cal.4th 186, 201; People v. Viramontes (2001) 93
Cal.App.4th 1256, 1264.)
The situation is different, however, regarding whether the modified version of
CALJIC No. 8.40 with which the jury was instructed was prejudicial to appellant. First
crime, each of the following elements must be proved: [¶] 1. An attempt was made to
kill a human being; [¶] 2. The attempted killing was unlawful; and [¶] 3. The perpetrator
of the attempted killing either intended to kill the alleged victim, or acted in conscious
disregard for life; and [¶] 4. The perpetrator’s conduct resulted in the attempted unlawful
killing.
8 A specific intent to kill is required for a conviction for attempted voluntary
manslaughter; a “conscious disregard for life” is insufficient. (See, e.g., People v.

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of all, our standard of review of errors in instructions concerning lesser-included offenses
is whether it is reasonably probable that the erroneous instruction affected the outcome.
(People v. Watson (1956) 46 Cal.2d 818, 836.) Our Supreme Court so held in People v.
Breverman (1998) 19 Cal.4th 142, 164-179 (Breverman), overruling People v. Sedeno
(1974) 10 Cal.3d 703. It reaffirmed that point even more recently in the highly-pertinent
People v. Lasko (2000) 23 Cal.4th 101, 111-113 (Lasko).9 (Cf. also People v. Montes,
supra, 112 Cal.App.4th at p. 1552).
Under the Watson test, it is simply not “reasonably probable” that the erroneous
retention of the “conscious disregard” language in the modified version of CALJIC No.
8.40 affected the outcome here. In the first place, in closing argument the prosecution
discussed the attempted voluntary manslaughter possible alternate verdict in all of two
sentences. More importantly, it did so by urging its rejection by the jury and, rather, their
conviction of appellant of the charged offense, attempted murder. The defense never
addressed the issue at all, its position being that the prosecution had never established
that appellant was the shooter, principally because of the unreliability of Green’s and
Lujan’s testimony.
But even more importantly, the evidence that appellant was (1) the shooter and (2)
shot Green with intent to kill was very substantial. On the first point, and in addition to
the testimony of Green and Lujan, the jury heard from the officer who arrested appellant
the day after the shooting and found in the car he was driving a .22 caliber revolver
containing four empty casings. It then heard from a Vallejo police detective that both
Lujan and Green (the latter twice) had picked out appellant’s picture from photo line-ups.
Gutierrez (2003) 112 Cal.App.4th 704, 710; People v. Montes (2003) 112 Cal.App.4th
1543, 1546-1552 (Montes).)
9 Lasko makes clear that, since Breverman, the state, and not the federal (see
Chapman v. California (1967) 386 U.S. 18) standard applies in circumstances such as
those present here, i.e., misinstruction regarding a lesser included offense. Although
appellant’s counsel cites Lasko once in his opening brief, he does not in his reply brief,
notwithstanding the People’s substantial (and in our opinion correct) reliance on Lasko
regarding the relevant standard of review in the instant circumstances.

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It also heard from a county criminalist that the .22 caliber bullet removed from Green’s
stomach was ballistically consistent with the revolver found in appellant’s car. Finally,
the jury had read to it the note that appellant, during the trial, apparently passed to Andre
Bryant asking Bryant to provide an alibi for him. During less than two days of
deliberation, the jury asked only one question of the court (regarding whether Bryant had
been listed as a potential witness for either side) and for the re-reading of the testimony of
only Green and Lujan.
On the second point, intent to kill, the jury knew that Green had had one .22
caliber bullet removed from her stomach but still had another in her arm and that,
according to her, four shots had been fired by appellant.10
Under these circumstances, we have no difficulty in concluding that the erroneous
inclusion of the two references to “conscious disregard for human life” in the modified
version of CALJIC No. 8.40 with which the jury was instructed was not prejudicial to
appellant.
D. Alleged Blakely Error
As noted above, via a supplemental brief appellant asks us to also consider
whether Blakely error was committed when the trial court sentenced appellant to the
upper terms on both count I and the enhancement alleged pursuant to section 12022.5,
subdivision (a), pertaining to personal use of a firearm during the commission of the
attempted voluntary manslaughter. We agree that there was and that, therefore, the case
must be remanded to the trial court for resentencing.
In Blakely, a 5-4 majority of the United States Supreme Court held that a
Washington State court had denied a criminal defendant his constitutional right to a jury
trial by sentencing him to 90 months in state prison for the crime of second-degree
kidnapping. The defendant had pled guilty to that charge, as well as to accompanying
allegations of domestic violence and use of a firearm. (Blakely, supra, ___U.S.___, [124
10 Lujan testified that she had definitely heard two shots but that it was “possible”
there were more.

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S.Ct. at p. 2536-2537.) Although the maximum prison term allowable for second-degree
kidnapping under Washington statutes was 10 years, those statutes also provided that the
“standard range” for such a crime committed with a firearm would be between 49 and 53
months. The trial judge, however, sentenced the defendant to the 90-month term because
of the “deliberate cruelty” and other aspects of the crime. (Ibid.) Citing its decision in
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) the majority of the Court
reversed because the Washington trial court, and not the jury, heard the testimony and
made the determination to increase the defendant’s sentence from the “standard range” of
49 to 53 months to 90 months. (Blakely, supra, ___ U.S. ___ [124 S.Ct. at p. 2536.)
Although here there was not, as there was in Blakely, a hearing complete with
testimony before the trial judge, there was clearly a judicial, rather than a jury,
determination that both of the two upper terms should be imposed. Although the trial
judge here was careful and precise in the way he identified and articulated the various
aggravating factors under rule 4.421 of the California Rules of Court, the fact remains
that, to quote from Blakely, “the judge . . . imposed a sentence greater than the maximum
he could have imposed under state law without the challenged factual finding.” (Blakely,
supra,___ U.S. ___ [124 S.Ct. at p. 2537].) In this state, of course, that maximum was
and is the middle term in each case. (See § 1170, subdivision (b), and Cal. Rules of
Court, rule 4.420.)
We are aware, of course, that our Supreme Court has granted review of two
decisions from our sister courts raising Blakely issues. (See People v. Towne, review
granted July 14, 2004, S125677, and People v. Black, review granted July 28, 2004,
S126182.) We have considered postponing issuance of our decision in this case to await
the court’s decision in these cases. We believe, however, that such a postponement is
unnecessary because the two upper terms imposed here seem clearly to contravene
Blakely.
First of all there was not, as there was in Blakely, any sort of a plea of guilty or no
contest by appellant; he was convicted of the offenses charged after a jury trial. Second,
it is clear from the record of the sentencing hearing that appellant’s admitted two prior

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felony convictions (which resulted in one prison term) were not considering by the trial
court as an aggravating factor. Indeed, the trial court expressly disclaimed any such
reliance during the sentencing hearing. Rather, citing subdivisions (a)(1), (2), (3) & (4)
and (b)(1) & (2) of California Rules of Court, rule 4.421, the court articulated many
aggravating factors which caused it to impose the upper term for both the attempted
voluntary manslaughter conviction and the personal use of a firearm enhancement.
Included among these were that appellant’s crime involved “great violence,” “a threat of
great bodily harm,” were “perpetrated by Mr. Powell [with] a high degree of cruelty,
viciousness, as well as callousness,” as well as the fact that appellant “did use a weapon
at the time” directed at a victim who “was particularly vulnerable,” and the additional
facts that appellant was on parole at the time of the offenses and had attempted to suborn
perjury during the course of the trial.
These findings by the trial court, although clearly supported by the record and tied
directly by it to the aggravating factors spelled out in rule 4.421 of the California Rules of
Court, fail the Blakely test that the presence of any fact or factor which is used to increase
the amount of prison time a defendant serves above the “standard range” (per the
Washington State statutes) or the “middle term” (per § 1170, subd. (b), of our statutes and
Cal. Rules of Court, rule 4.420(a)) must be determined by a jury and not a judge.
Although the sentence in this case was pronounced over a year before Blakely was
handed down, the ruling in that case clearly applies here because this case was on appeal
during that period and hence its result was not final. (See, e.g., Griffith v. Kentucky
(1987) 479 U.S. 314, 328; People v. Ashmus (1991) 54 Cal.3d 932, 991.) In this
connection, we simply cannot agree with the People’s contention, in their post-Blakely
brief, that appellant “forfeited” his right to claim Blakely error by not raising that issue
below. Because of the constitutional implications of the error at issue, we question
whether the forfeiture doctrine applies at all. (See People v. Vera (1997) 15 Cal.4th 269,
276-277 [claims asserting deprivation of certain fundamental, constitutional rights not
forfeited by failure to object].) Furthermore, there is a general exception to this rule
where an objection would have been futile. (People v. Abbaszadeh (2003) 106

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Cal.App.4th 642, 648, and authority discussed therein.) We have no doubt that, at the
time of the sentencing hearing in this case, an objection that the jury rather than the trial
court must find aggravating facts would have been futile. (See Pen. Code, § 1170, subd.
(b); Cal. Rules of Court, rules 4.409 & 4.420-4.421.) In any event, we have discretion to
consider issues that have not been formally preserved for review. (See 6 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000), Reversible Error, § 36, p. 497.) Since the
purpose of the forfeiture doctrine is to “encourage a defendant to bring any errors to the
trial court’s attention so the court may correct or avoid the errors” (People v. Marchand
(2002) 98 Cal.App.4th 1056, 1060), we would find it particularly inappropriate to invoke
that doctrine here in light of the fact that Blakely was decided after appellant was
sentenced.
There remains only the issue of whether appellant was prejudiced by the Blakely
error. Since the Blakely court rested its holding on Apprendi, we will apply the standard
of prejudice applicable to Apprendi error, which is whether such error was harmless
beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326, citing
Chapman v. California, supra, 38 U.S. at p. 24.) The People make two arguments in
support of their contention that, here, any Blakely error was harmless beyond a
reasonable doubt. First of all, they contend that, under the United States Supreme
Court’s decision in Almendarez-Torres v. United States (1998) 523 U.S. 224, appellant
had no right to a jury trial regarding whether his prior convictions constituted aggravating
circumstances. As noted earlier, appellant admitted two prior convictions which resulted
in one prison term. And, of course, both “prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings” and a prior prison term are included
among “circumstances in aggravation” under rule 4.421 (b)(3) & (4) of the California
Rules of Court. Because, the People contend, “a single aggravating factor is sufficient to
support the imposition of an upper term” (see People v. Osband (1996) 13 Cal.4th 622,
728), the presence of both of these factors means that there is no prejudicial Blakely error.
The People also argue that, when all is said and done, there is also no prejudicial
Blakely error because there was “overwhelming or uncontradicted evidence” at trial of

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such aggravating circumstances as appellant’s use of a firearm, that the crime involved
great violence and was “cruel, vicious and callous” and, therefore, there was “no real
dispute at trial” regarding the presence of these aggravating factors.
The People have a point, but not enough of one to convince us that we should not
remand the case for resentencing. Here, the trial court could have, but did not, use
appellant’s admitted prior convictions and prison term as an aggravating factor. Instead it
relied on others which, we agree again, were amply supported by the trial record
although, for the reasons noted above, contrary to Blakely. We think it imprudent for us
to assume that, post-Blakely, the trial court would determine to impose the same upper
terms based on factors not subject to the Blakely rule; perhaps it would but perhaps not.11
Under these circumstances we believe the proper course of action is for us to
remand this case to the trial court to reconsider the appropriate sentence for appellant in
light of Blakely.
E. The Issue of Appellant’s Custody Credits
Appellant claims he was deprived of his constitutional rights because, at a point of
time when he was not present in court, the trial court denied him presentence credits to
which, he asserts, he was entitled.
The sentencing hearing in this matter was held, as noted earlier, on July 11, 2003.
Three days before that date, appellant’s trial counsel filed a “Defendant’s Sentencing
Brief” which devoted itself principally to arguing against the imposition of the upper
term. The document did, however, briefly discuss the issue of custody credits to which
11 Two knowledgeable California trial court judges have written that under “Rule
4.4.08 (a), for example, the court may be able to impose an aggravated term simply
because the defendant has a certain number of felony and/or misdemeanor convictions”
and an “upper term may be imposed, for example, if the defendant . . . has a prior prison
term (Rule 4.421(b)(3).” (Couzens & Bigelow, Application of Blakely v. Washington to
California Courts (2004) www/fdap.org/blakely.html.) We cannot, however, hold that
either of these options is automatically applicable here. First of all, those authors were
careful to use the term “may” regarding both options and, secondly, we are reluctant to
assume that this trial court would have given appellant the same upper term sentence it
did based only on appellant’s admitted prior convictions and prison term.

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appellant might be entitled, stating: “[O]n the issue of credits Mr. POWELL was taken
into custody because of a weapon found in an automobile which he was driving. His
parole status alone did not result in his arrest. Thus, the Court should give Mr. POWELL
the credits to which he was entitled.”
This reference in the brief was, clearly, in response to a “Pre-Sentence Report”
prepared by a deputy probation officer which, although marked filed as of July 11, 2003,
was in the hands of defense counsel before then.12 That report recommended that
appellant receive no custody credits because he was “not eligible for these credits in that
he was in-custody on a parole hold for absconding and not related to the instant offense.”
Some of those last-quoted words appear as underlined, apparently by the court, in our
copy of the record.
At the sentencing hearing, appellant and his counsel were both present. The court
noted that it had read and considered both parties’ briefs plus the probation report on the
issue of sentencing, and asked defense counsel if he had anything he wished to add. He
did not. The prison sentence, noted above, was then pronounced, but in so doing the
court said nothing one way or the other regarding custody credits. Nor was the subject
brought up by either counsel thereafter. Both the court’s minute order, issued the same
day, and its abstract of judgment, filed the same day, specifically stated that appellant
would not receive custody credits.
Because the issue was not specifically dealt with orally by the court during the
July 11, 2003, hearing, appellant contends the denial of custody credits was done “outside
appellant’s presence, denying appellant due process of law and his right to the assistance
of counsel.”
If this were the only sentencing issue before us, we would reject it out of hand.
Clearly, the issue of presentence credits was understood by the parties and the court and,
although not verbally dealt with by the court at the hearing, it was (1) expressly briefed
12 We know this because that document is specifically referenced in “Defendant’s
Sentencing Brief.”

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by both sides before the sentencing hearing, (2) not raised by defense counsel at that
hearing, and (3) expressly determined by the court in its minute order of the same day.
However, and as discussed in the preceding portion of this opinion, this is not the only
sentencing issue before us. Therefore, in connection with the remand which we are
ordering regarding the Blakely issue, the court should also specifically consider and
resolve, in the presence of appellant and his counsel, the issue of appellant’s entitlement,
or lack thereof, to presentence custody credits.
IV. DISPOSITION
The sentence imposed is vacated and the matter remanded to the trial court for
reconsideration of its sentence, more specifically (1) its imposition of the upper terms on
count I and the personal use of a firearm enhancement in light of Blakely and (2) whether
appellant is entitled to any presentence custody credits. Otherwise, the judgment is
affirmed.
_________________________
Haerle, Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Ruvolo, J.

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