P. v. Lopez

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Filed 7/30/15 P. v. Lopez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIAN LOPEZ,
Defendant and Appellant.
A139857
(Alameda County
Super. Ct. No. C171235)
Appellant Adrian Lopez was sentenced to prison after he was convicted of
committing felony offenses against his father on one occasion and against his aunt and
uncle on another. He argues the judgment must be reversed because the trial court
(1) admitted evidence of photographs and text messages that were the product of an
unlawful warrantless search of his cell phone, and (2) admitted evidence concerning his
possession of firearms not used in the charged offenses. We reject these claims but order
the judgment and abstract of judgment modified to correct an unauthorized sentence.
I. FACTS AND PROCEDURAL HISTORY
The Alameda County District Attorney filed an information charging appellant
with second degree robbery with firearm use allegations (Pen. Code, §§ 211, 12022.5,
subd. (a), 12022.53, subd. (b)),1 attempted second degree robbery with firearm use
allegations (§§ 211, 664, 12022.5, subd. (a), 12022.53, subd. (b)), assault with a
semiautomatic firearm with a firearm use allegation (§§ 245, subd. (b), 12022.5,
1 All further statutory references are to the Penal Code unless otherwise indicated.

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subd. (a)), and two counts of possession of a firearm by a felon (§ 29800). The
information further alleged that appellant had suffered a prior conviction for first degree
residential burglary for purposes of the serious felony enhancement and the “Three
Strikes” law. (§§ 667, subd. (a), 1170.12.) An additional count charging appellant with
making a criminal threat under section 422 was dismissed.
The case proceeded to a jury trial, at which the following evidence was adduced:
Appellant, who was 22 years old at the time of the events in this case and had been
convicted of a felony, lived part of the time with his father, Adrian Sr.2 Adrian Sr. told
appellant to move out of his home in the autumn of 2012 because he was tired of
appellant taking his things, slacking off, staying out late, and expecting his father to cook
and clean up after him. Appellant approached his father near Christmastime, telling him
he had nowhere to stay, which led to an exchange of words in which Adrian Sr. told
appellant he was a disappointment and appellant brandished a pipe. On New Year‟s Eve,
Adrian Sr. saw appellant at a bar and pushed him aside to scuffle with appellant‟s friends,
who laughed at him.
The home of Adrian Sr.‟s brother Ricardo was burglarized over the holidays,
while Ricardo was out of the country with his wife Diana. Adrian Sr., Ricardo and Diana
suspected that appellant had committed that burglary, as well as the burglary of another
family member‟s home. Ricardo let it be known in the neighborhood that he was looking
for appellant.
On January 17, 2013, at about 9:00 p.m., Ricardo and Diana were unloading
groceries in front of their house when appellant appeared. He told Ricardo, “I heard you
were looking for me,” and held a semiautomatic handgun to Ricardo‟s chest. Ricardo
raised his hands in the air and told appellant to “be cool,” that they were family.
Appellant told Ricardo to shut up and checked his pockets; Ricardo gave appellant $40
from his wallet. Appellant kept pointing the gun at Ricardo while he patted Diana‟s
2 For clarity, we use the victims‟ first names due to the surname they share with
appellant.

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pockets, but she was only carrying keys, her identification and her ATM card, so
appellant took nothing from her. As he was leaving, appellant warned them he would be
back if they called “5-0.” Ricardo called 911 and reported that appellant had robbed him
at gunpoint and taken about $45.
At about 9:45 a.m. on February 1, 2013, Adrian Sr. was on his way to his job at an
auto body shop when he saw appellant sitting in the front of the shop talking to two or
three men who worked there. Adrian Sr. went home to avoid contact with appellant, but
returned after he was unable to reach his boss on the telephone. When he arrived at the
shop, Adrian Sr. angrily told appellant he had to leave, and appellant said he was there
first. Adrian Sr. went next door and explained the issue to the building‟s owner, who
came out to tell appellant to leave.
Appellant walked across the street to his car, and Adrian Sr. walked into the shop
angrily yelling, “[D]on‟t need no more shit here.” Appellant left his car and walked up to
Adrian Sr., saying, “What is your fucking problem. You‟re tripping too much.” Adrian
Sr. told him to leave and saw that appellant had a black handgun that appeared to be a
nine millimeter. Appellant said, “I will kill you, bitch ass mother fucker.” Adrian Sr.
screamed, “[A]re you really going to shoot me?” and “[G]o ahead.” Appellant left, and
as he was driving away, Adrian Sr. hit the windshield of the car with a screwdriver he
had been carrying, cutting his own hand.
Adrian Sr. had the building owner dial 911, and told the dispatcher appellant had
pulled a loaded gun and said he was going to kill him. He described the gun as “an
automatic, nine millimeter or a 40.” During an interview with police officers at the body
shop that same morning, Adrian Sr. appeared shocked and upset and reported that
appellant had pointed a handgun at his head. In a handwritten statement given to police,
Adrian Sr. recounted that appellant “took a black, semiautomatic pistol out of his
waistband of his basketball shorts and put the pistol to my head.” A reluctant witness at
trial, Adrian Sr. testified that appellant had not held the gun to his head, but had just held
it up. He explained that he had wanted appellant to be picked up by police to teach him a
lesson.

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Two weeks after the confrontation at the body shop, appellant sent Adrian Sr. a
text message that read, “I never meant to pull the thang out [it] is just you be on dat
2 faced shit an i hate people like that i opalogize for doing that but wats done is done. I
never.” According to Inspector Craig Chew of the district attorney‟s office, who testified
as the prosecution‟s firearm expert, the term “thang” often refers to a gun.
On March 8, 2013, Ricardo called 911 asking that the police arrest appellant. He
told the dispatcher appellant was hanging around in front of a tattoo shop smoking weed
and that he always carried an eight- or nine-millimeter Glock. Officer Porter Weston of
the Oakland Police Department contacted appellant at the tattoo shop and searched him
for a weapon, but did not find one. Appellant asked Weston to retrieve his cell phone
from where he had been sitting and Weston examined it “incident to arrest.” Weston
found two photographs of handguns (People‟s Exhibits Nos. 1-1 and 1-3) and met
Ricardo nearby to see whether one of the guns had been used in the January 17 robbery.
Ricardo indicated the larger of the two guns looked similar to the one appellant had
pointed at him, but he could not be sure.
Weston put the cell phone in airplane mode and booked it into evidence. Later,
the district attorney obtained a search warrant for the phone and an expert in cell phone
data extraction from that office used Cellebrite technology to extract data from the phone,
including text messages and photographs.
Inspector Chew was shown four photographs of firearms extracted from
appellant‟s cell phone and was asked to identify the type of weapon depicted. One
photograph (People‟s Exhibit No. 1-1) showed two guns, the larger of which was
identified by Chew as a Beretta .40 caliber or nine millimeter, either one of which would
be semiautomatic unless they had been modified to be fully automatic. Chew identified
the second, smaller gun in the photograph as a “Beretta model 21 Bobcat which is a .22
or .25 caliber pistol” and described it as “a semi-automatic pistol originally from the
manufacturer.” A gun depicted in three photographs (People‟s Exhibits Nos. 1-3, 1-5
and 1-7) was identified by Chew as a “Browning model 71, .380 caliber, semi-automatic
pistol.” Several text messages on appellant‟s phone concerned his offers to sell various

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guns between December 9, 2012, and March 4, 2013, including a Browning .380 caliber,
a .40-caliber Smith & Wesson semiautomatic pistol and a Glock .40-caliber
semiautomatic pistol.
The jury convicted appellant of the charged offenses and found the firearm
enhancement allegations to be true. The court found the prior conviction allegation to be
true in a bifurcated proceeding and sentenced appellant to prison for an aggregate term of
29 years, calculated as follows: the three-year middle term on the robbery count, doubled
to six years under the Three Strikes law, plus a consecutive 10-year term for the firearm
enhancement under section 12022.53, subdivision (b); eight months (one-third the middle
term) for the felon with a firearm count involving the incident with Ricardo and Diana,
doubled to 16 months under the Three Strikes law; two years for the assault with a
firearm count (one-third the middle term), doubled to four years under the Three Strikes
law, plus an additional 16 months (one-third the middle term) for the firearm
enhancement under section 12022.5, subdivision (a); and eight months (one-third the
middle term) for the felon with a firearm count involving Adrian Sr., doubled to 16
months under the Three Strikes law. A five-year serious felony enhancement under
section 667, subdivision (a) was added to the entire sentence, and the attempted robbery
count involving Diana was ordered to run concurrently.
II. DISCUSSION
A. Warrantless Search of Cell Phone
Appellant argues that under the recent United States Supreme Court decision in
Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473] (Riley), the warrantless
examination of his cell phone by Officer Weston at the time of his arrest violated his
federal constitutional right to be free of unreasonable searches and seizures. (U.S. Const.,
4th & 14th Amends.) The People do not dispute that Riley renders the initial search of
the cell phone illegal, but they contend reversal is not required because (1) appellant
forfeited the claim by failing to raise it in the trial court; (2) the good-faith exception to
the exclusionary rule renders the fruits of the search admissible under United States v.
Leon (1984) 468 U.S. 897 (Leon) and Davis v. United States (2011) ___ U.S. ___

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[131 S.Ct. 2419, 2423-2424] (Davis); (3) the extraction of the information from the cell
phone pursuant to a warrant was attenuated from the original warrantless search; and
(4) any error in admitting information extracted from the cell phone was harmless.
1. Forfeiture
We initially consider the issue of forfeiture. Appellant did not file a motion to
suppress evidence under section 1538.5 or otherwise object to the warrantless search of
his cell phone in the trial court, but he argues his failure to raise the issue is excusable
because the decision in Riley did not issue until after his trial and the California Supreme
Court had previously held such searches permissible when they were incident to a lawful
arrest. We agree.
In January 2011, the California Supreme Court issued its decision in People v.
Diaz (2011) 51 Cal.4th 84, 88 (Diaz), holding that police may conduct a warrantless
search of a cell phone seized from a defendant‟s person at the time of arrest without
violating the Fourth Amendment. The United States Supreme Court denied certiorari
later that same year. (Diaz v. California (2011) ___ U.S. ___ [132 S.Ct. 94].) Appellant
was arrested, brought to trial and sentenced in 2013. Absent a contrary ruling by the
United States Supreme Court, the trial court was bound to follow the rule set forth in
Diaz, which rendered futile any Fourth Amendment challenge to the search of his cell
phone incident to his arrest. (Montano v. Wet Seal Retail, Inc. (2015) 232 Cal.App.4th
1214, 1224, fn. 5; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
It was not until January 2014 that the United States Supreme Court granted certiorari in
Riley and a companion case, and the decision in Riley was not filed until June 2014.
(People v. Riley (Feb. 8, 2013, D059840) [nonpub. opn.], cert. granted Jan. 17, 2014,
___ U.S. ___ [134 S.Ct. 999]; United States v. Wurie (1st Cir. 2013) 728 F.3d 1, cert.
granted Jan. 17, 2014, ___ U.S. ___ [134 S.Ct. 999].)
Fourth Amendment issues must usually be raised in the trial court (People v. Hart
(1999) 74 Cal.App.4th 479, 485 (Hart)), but a failure to do so may be excused when
requiring an objection “ „would place an unreasonable burden . . . to anticipate

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unforeseen changes in the law and encourage fruitless objections in other situations
where defendants might hope that an established rule of evidence would be changed on
appeal.‟ ” (People v. De Santiago (1969) 71 Cal.2d 18, 23-28 [defendant excused from
challenging entry based on failure to comply with “knock-and-notice” requirement of
section 844 when reasonable defense counsel would have construed the case law at the
time of trial to excuse police compliance with that section].) The rule of Diaz was
binding at the time of appellant‟s arrest and trial, and appellant‟s failure to challenge the
warrantless cell phone search was excusable.
2. Good-Faith Exception
Because appellant‟s conviction was not yet final on direct review when the United
States Supreme Court announced its decision in Riley, that decision applies retroactively
to appellant‟s case. (Davis, supra, 131 S.Ct at p. 2431.) The parties do not dispute that
the initial warrantless cell phone search was unlawful under Riley, but the fact appellant
was subject to such a search does not mean he is automatically entitled to the remedy of
excluding the cell phone data seized. (Ibid.) “Whether the exclusionary sanction is
appropriately imposed in a particular case . . . is „an issue separate from the question
whether the Fourth Amendment rights of the party seeking to invoke the rule were
violated by police conduct.‟ ” (Leon, supra, 468 U.S. at p. 906.)
The exclusionary rule is not a personal constitutional right, nor is it designed to
redress the injury caused by an unconstitutional search; rather, it is a judicially created
remedy whose sole purpose is to deter future Fourth Amendment violations. (Davis,
supra, 131 S.Ct. at pp. 2426-2427.) The deterrence benefits of exclusion “ „var[y] with
the culpability of the law enforcement conduct‟ at issue. [Citation.] When the police
exhibit „deliberate,‟ „reckless,‟ or „grossly negligent‟ disregard for Fourth Amendment
rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs.
[Citation.] But when the police act with an objectively „reasonable good-faith belief‟ that
their conduct is lawful, [citation], or when their conduct involves only simple, „isolated‟

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negligence, [citation], the „ “deterrence rationale loses much of its force,” ‟ and exclusion
cannot „pay its way.‟ ” (Id. at pp. 2427-2428.)
Decisions beginning with Leon, supra, 468 U.S. 897, have carved out a so-called
good-faith exception allowing the introduction of evidence that would otherwise be
subject to exclusion based on a Fourth Amendment violation. This good-faith exception
has been applied in a number of situations: when officers acted in objectively reasonable
reliance on a subsequently invalidated warrant (id. at p. 922); when police have taken
action subject to a statute that is subsequently invalidated (Illinois v. Krull (1987) 480
U.S. 340 (Krull)); when an unlawful arrest was attributable to incorrect information in a
judicially maintained computer database system of outstanding warrants (Arizona v.
Evans (1995) 514 U.S. 1); when an unlawful arrest was attributable to incorrect
information in a police-maintained database of outstanding warrants (Herring v. United
States (2009) 555 U.S. 135 (Herring)); and, as relevant here, when a search is lawful
under binding judicial precedent that is in effect at the time of the search, but that
precedent is later overruled (Davis, supra, 131 S.Ct. at pp. 2428-2429). As to this last
variant of the good-faith exception: “An officer who conducts a search in reliance on
binding appellate precedent does no more than „ “ac[t] as a reasonable officer would and
should act.” (Id. at p. 2429.)
In Davis, the weight of the case law had interpreted United States Supreme Court
precedent to allow police to search an automobile incident to an arrest of recent
occupants, regardless of whether the arrestee was within reaching distance of the vehicle
at the time of the search. (Davis, supra, 131 S.Ct. at p. 2424.) The Eleventh Circuit,
where the Davis case arose, followed this bright-line approach. (Id. at p. 2425.) Then, in
Arizona v. Gant (2009) 556 U.S. 332 (Gant), a plurality of the United States Supreme
Court created a new, two-part rule allowing such a search only when (1) the arrestee was
within reaching distance of the vehicle during the search, or (2) the police had reason to
believe the vehicle contained evidence relevant to the crime for which the person was
arrested. The Supreme Court in Davis concluded the good-faith exception applied to an
automobile search that would have been invalid under Gant, but had been conducted

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before that decision issued. (Davis, at p. 2425.) “[W]hen binding appellate precedent
specifically authorizes a particular police practice, well-trained officers will and should
use that tool to fulfill their crime-detection and public-safety responsibilities.” (Id. at
p. 2429.)
The California Supreme Court‟s decision in Diaz specifically authorized officers
to conduct a warrantless search of a cell phone found on a defendant‟s person when that
search was incident to a lawful arrest. (Diaz, supra, 51 Cal.4th at p. 88.) Although
appellant criticizes Diaz as an unwarranted extension of United States Supreme Court
precedent regarding searches incident to arrest, he offers no cogent argument that it was
objectively unreasonable for a police officer in the field to rely on that decision. (Cf.
Krull, supra, 480 U.S. at p. 355 [officer cannot reasonably rely on statute when
“legislature wholly abandoned its responsibility to enact constitutional laws” or if
provisions of the law were “such that a reasonable officer should have known that the
statute was unconstitutional”].)
Appellant suggests a remand is required to determine whether the police in this
case actually relied on Diaz when conducting the warrantless search of the cell phone, but
such an inquiry would be misplaced. Though the term “good faith” suggests an
examination of the officer‟s actual state of mind, the test for the good-faith exception is
an objective one: “The pertinent analysis of deterrence and culpability is objective, not
an „inquiry into the subjective awareness of the arresting officers [citation].‟ ” (Herring,
supra, 555 U.S. at p. 145; see People v. Willis (2002) 28 Cal.4th 22, 34-35.)
At oral argument, counsel for appellant suggested that if we were to remand the
case to the trial court for a suppression hearing, appellant might be able to establish that
the good-faith exception did not apply because the cell phone was not taken from
appellant‟s person at the time of his arrest and its search was not lawful even under Diaz.
This argument, unlike the claim that Riley renders the search unlawful, is predicated on
the law in existence at the time of the search in this case. Appellant‟s failure to raise the
issue in the trial court has forfeited this aspect of his argument on appeal. (See Hart,
supra, 74 Cal.App.4th at pp. 485-486.)

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We therefore conclude the good-faith exception to the exclusionary rule applies,
and suppression of the evidence obtained during the warrantless search of appellant‟s cell
phone was not required.3 We need not resolve the People‟s additional claim that because
the information on appellant‟s cell phone was ultimately extracted pursuant to a search
warrant issued at the district attorney‟s behest some months after the phone was taken
into custody, the evidence was attenuated from any illegality in the initial warrantless
search by Officer Weston. (See generally People v. Brendlin (2008) 45 Cal.4th 262, 269;
People v. Weiss (1999) 20 Cal.4th 1073, 1077 [independent source doctrine].) Nor do we
determine whether the introduction of evidence seized from appellant‟s cell phone, if
unlawfully seized, was harmless under the standard for federal constitutional error set
forth in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Boyer (1989)
48 Cal.3d 247, 280, fn. 23, disapproved on another ground in People v. Stansbury (1995)
9 Cal.4th 824, 830, fn. 1.)
B. Cell Phone Photos of Pistols Not Used in Charged Offenses
Appellant argues that regardless of the legality of the cell phone search, the trial
court erred in allowing the prosecution to present the photographs of guns and the text
messages referring to gun sales that were recovered from the phone. He contends this
evidence was improperly used to prove criminal propensity in violation of Evidence Code
section 1101, subdivision (a), and violated his federal constitutional rights to due process
and a fair trial under McKinney v. Rees (1991) 993 F.2d 1378 (McKinney). Appellant
notes that while Ricardo had identified a photograph of one of the guns as similar to that
used by appellant during the robbery on January 17, the other weapons had not been tied
to the charged crimes.
Preliminarily, we reject the People‟s contention that appellant forfeited this
argument by failing to lodge a specific objection under Evidence Code section 1101.
3 The California Supreme Court has granted review to determine whether Riley
should apply to warrantless cell phone searches incident to arrests made at a time when
Diaz was the controlling authority. (People v. Macabeo, review granted Nov. 25, 2014,
S221852.)

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During the hearing on the People‟s motion in limine on the issue, defense counsel
objected that the photos and texts, which were clearly evidence of illegal conduct by
appellant, were not in any way relevant to the case. “When . . . the People have already
made it clear that the evidence will show the commission of an uncharged crime, and the
defendant objects on grounds that the People have not shown that the evidence is relevant
to any issue in the case, the objection is sufficient to alert the court that admissibility
must be determined under the criteria of Evidence Code section[] 1101 . . . .” (People v.
Williams (1988) 44 Cal.3d 883, 907; compare People v. Clark (1992) 3 Cal.4th 41, 126-
127, abrogated on other grounds by Crawford v. Washington (2004) 541 U.S. 36.)
Turning to the merits, Evidence Code section 1101, subdivision (a) generally
prohibits the use of character evidence, including evidence of specific acts on another
occasion, to establish the charged offense. Subdivision (b) of that section permits such
evidence when relevant to prove a material fact at issue other than criminal propensity or
disposition to commit such an act. A ruling admitting evidence of other crimes is
reviewed for abuse of discretion. (People v. Harris (2013) 57 Cal.4th 804, 841.)
The photographs of the firearms were admissible because they tended to show
appellant possessed semiautomatic handguns near the time of the offenses charged in this
case. This corroborated the testimony of the victims that appellant had used a firearm in
the commission of the offenses, and, in particular, Ricardo‟s testimony that the gun used
was a semiautomatic. The photographs were clearly relevant to the elements of both the
charged offenses and the firearm use enhancements. (See People v. Champion (1995) 9
Cal.4th 879, 924, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821,
860 (Champion) [photographs of defendants holding the type of gun used in killing one
of the victims were “obviously relevant”]; People v. Price (1991) 1 Cal.4th 324, 434
[photographs of guns that could have been used to commit the charged offenses were
relevant]; People v. Rinegold (1970) 13 Cal.App.3d 711, 720 [“an implement by means
of which it is likely that a crime was committed is admissible in evidence if it has been
connected with the defendant”].)

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As the trial court noted when ruling on the prosecution‟s motion in limine to admit
the cell phone evidence, Ricardo had been shown two photographs of guns found on the
cell phone and had identified one of them (described by Chew as the .40-caliber or nine-
millimeter Beretta) as similar to the weapon appellant used in the robbery. But Ricardo
was not certain the gun in the photograph was the gun that was actually used, and his
statement to police did not eliminate the possibility that the smaller Beretta or the
Browning might have been used in one or more of the charged crimes. “When the
specific type of weapon used . . . is not known, it may be permissible to admit into
evidence weapons found in defendant‟s possession some time after the crime that could
have been the weapons employed. There need be no conclusive demonstration that the
weapon in the defendant‟s possession was the . . . weapon.” (People v. Riser (1956) 47
Cal.2d 566, 577, disapproved on other grounds in People v. Chapman (1959) 52 Cal.2d
95, 98 and People v. Morse (1964) 60 Cal.2d 631, 648-649.) “Although the witnesses did
not establish the gun necessarily was the . . . weapon, it might have been.” (People v.
Carpenter (1999) 21 Cal.4th 1016, 1052.)
As for the text messages concerning appellant‟s offer to sell a Glock, a Smith &
Wesson and a .380 Browning, this evidence also tended to circumstantially show that
appellant was in possession of weapons that could have been used in the charged
offenses. The messages suggested the guns used were semiautomatic weapons as
charged, not some other less lethal type of firearm or replicas. They also explained why
no weapons had been recovered from appellant in this case—he might well have
completed the sales he was negotiating in his texts.
Even if we assume the court should have excluded the photographs and text
messages under section 1101, subdivision (a), the error is one of state law that requires
reversal only if it is reasonably probable appellant would have obtained a more favorable
result if the evidence had been excluded. (People v. Welch (1999) 20 Cal.4th 701, 749-
750, citing People v. Watson (1956) 46 Cal.2d 818, 836.) The admission of the
challenged evidence was not prejudicial under this standard.

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There was no issue of identification in this case because the victims were three
close family members of appellant‟s. Appellant‟s father, Adrian Sr., was obviously
reluctant to testify against his son, but he nonetheless described an altercation in which
appellant had confronted him and threatened him with a nine-millimeter or .40-caliber
handgun. Appellant‟s uncle Ricardo and his aunt Diana both testified that appellant
approached them outside their home as they were unloading groceries, held a handgun to
Ricardo‟s chest, took money from Ricardo‟s pocket and then patted Diana‟s pockets to
see if she had anything of value. Ricardo described the gun used as a semiautomatic
without reference to the photographs, and Diana confirmed it was not a revolver.
Excluding evidence that appellant had possessed and tried to sell other weapons was not
reasonably likely to have changed the result of the trial.
Nor are we persuaded that the introduction of the photographs and texts rendered
appellant‟s trial fundamentally unfair and thereby violated his federal constitutional right
to due process. Appellant relies primarily on McKinney, supra, 993 F.2d 1378, 1381, a
case in which the victim‟s throat was slit with a knife that was never identified. At issue
was the prosecution‟s introduction of extensive, emotionally charged testimony
concerning the defendant‟s fascination with knives, his collection of knives, and his use
of a knife to carve “Death is His” on his closet door. (Id. at p. 1382.) The court
concluded this evidence was not relevant to any issue except character and disposition
and, because the case against the defendant was circumstantial and weak, admitting that
evidence rendered the trial fundamentally unfair. (Id. at pp. 1381-1386.)
McKinney is inapposite because it involved the introduction of highly prejudicial
evidence from which “ „no permissible inference[]‟ ” could be drawn by the jury.
(McKinney, supra, 993 F.2d at p. 1384.) Here, by contrast, the photographs and text
messages regarding semiautomatic weapons were relevant. (Cf. People v. Steele (2002)
27 Cal.4th 1230, 1246.) Moreover, if we assume the photos and text messages should
have been excluded, their admission did not deny appellant a fair trial. Even without the
evidence, the jury would have learned that appellant had confronted his family members
with handguns. “ „The . . . issue is not whether introduction of [the evidence] violated

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state law evidentiary principles, but whether the trial court committed an error which
rendered the trial so arbitrary and fundamentally unfair that it violated federal due
process.‟ ” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
C. Sentencing Issues
The People note the abstract of judgment reflects a concurrent sentence for the
attempted robbery count involving Diana, but omits the length of the term imposed. In
its oral pronouncement of judgment, the trial court indicated it was imposing a concurrent
term of eight months (one-third the middle term) for the attempted robbery count,
doubled to 16 months under the Three Strikes law, plus three years four months
(one-third the middle term) for the firearm enhancement under section 12022.53,
subdivision (b). This was an unauthorized sentence, because the one-third-the-middle-
term limitation under section 1170.1, subdivision (a) applies only to consecutive terms.
(People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.) We have the inherent
power to correct an unauthorized sentence on appeal, even when the issue was not raised
in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.)
A remand for resentencing is unnecessary because the trial court indicated it was
choosing the middle term “for subsequent offenses after the princi[pal] term” and denied
appellant‟s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to
dismiss the prior “strike.” (See People v. Alford (2010) 180 Cal.App.4th 1463, 1473-
1474 [modification rather than remand appropriate].) Contrary to the suggestion of
appellant‟s counsel at oral argument, section 654 is not potentially applicable because the
attempted robbery involved a separate victim. (See Champion, supra, 9 Cal.4th at
p. 935.) The middle term for attempted second degree robbery is two years. (§§ 18,
subd. (a), 213, subd. (b).) We will order the sentence for the attempted robbery in
count 2 modified to reflect imposition of the two-year middle term, doubled to four years
under the Three Strikes law, plus a 10-year firearm enhancement pursuant to section
12022.53, subdivision (b), that term to run concurrently with the rest of appellant‟s
sentence.

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Based on the California Supreme Court‟s recent decision in People v. Sasser
(2015) 61 Cal.4th 1, the People have withdrawn their claim that an additional five-year
enhancement should have been imposed under the Three Strikes law. We consider that
issue no further.
III. DISPOSITION
The sentence for the attempted robbery in count 2 is modified to reflect a
two-year middle term, doubled to four years under the Three Strikes law, plus an
additional 10 years for the firearm enhancement under section 12022.53, subdivision (b),
that 14-year term to run concurrently with the remainder of appellant‟s sentence. The
abstract of judgment shall be amended to reflect this modification and a copy of the
amended abstract shall be forwarded to the Department of Corrections and Rehabilitation.
As so modified, the judgment is affirmed.
NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.

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