P. v. Harris

Filed 8/29/17 P. v. Harris CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALONZO HARRIS et al.,
Defendants and Appellants.
B257675
(Los Angeles County
Super. Ct. No. BA343411)
APPEAL from judgments of the Superior Court of Los
Angeles County, Stephen Marcus, Judge. Harris’s judgment is
affirmed. Nelson’s judgment is to be modified in accordance with
this opinion, and the matter remanded to the trial court for
resentencing.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant Alonzo Harris.
Law Offices of Allen G. Weinberg and Derek K. Kowata,
under appointment by the Court of Appeal, for Defendant and
Appellant Floyd Nelson.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Margaret E. Maxwell and William H. Shin,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendants and appellants, Alonzo Harris and Floyd
Nelson, appeal their convictions for charges arising out of a series
of robberies, attempted robberies and associated crimes. The
prosecution’s theory was that defendant Harris committed
robberies from October to December 2007 with Glenn Boldware
until Boldware was shot and killed by Los Angeles police officers
on January 4, 2008. Thereafter, Harris carried out a few
robberies by himself (and once with an unidentified accomplice),
before being joined by defendant Nelson for the last robbery
attempt on July 11, 2008, a crime which immediately led to their
arrest.
Harris and Nelson raise evidentiary and sentencing issues.
For the reasons discussed below, Harris’s judgment is affirmed.
Nelson’s judgment is affirmed as modified, and the matter is
remanded to the trial court for resentencing.
BACKGROUND
Viewed in accordance with the usual rules of appellate
review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the
evidence established the following.
1. The crimes.
a. Anawalt Lumber Company [counts 30–36].
On October 7, 2007, at approximately 8:20 p.m., Gillian
Harden, Christopher Rumohr, Darron Lewis and Donald Duffy
were working as inventory contractors at Anawalt Lumber
Company at 1001 Highland Avenue in Hollywood. In addition to
the four contractors, two Anawalt employees, Leila Smiley and
Brenda Flores, were working in the store at the time. It being a
Sunday night, the store had closed at 6:00 p.m.

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Rumohr was working near a checkout stand when he
noticed two men inside the store. One of the men pointed a gun
at Rumohr’s forehead. At the gunman’s direction, Rumohr got on
the ground. Flores testified she was at a register when she
noticed an African-American man wearing a blue hoodie
sweatshirt, latex gloves, and a bandana across part of his face.
The man yelled, “Get on the floor. Get on the floor.” When Flores
did so, she noticed a second man with a gun.
Harden noticed two armed men near the checkout stand
wearing masks or bandanas on their faces and hoodie sweatshirts
covering their heads. One of the men grabbed Harden’s shirt and
pulled her towards the checkout stand. He told Harden to get on
the floor. Rumohr, Lewis, and Duffy, as well as the two female
employees, were already on the ground. One of the gunmen
pulled out zip ties to tie everyone up. The man’s mask fell down
and Flores could see his face; he was an African-American with a
“clean cut” mustache. That man asked Smiley where the safe
was, but when Duffy’s inventory tool began to buzz, the gunmen
fled because they thought it was an alarm.
b. Big Lots [counts 28–30].
On November 2, 2007, at 4:25 a.m., Juan Mendoza, Manuel
Vega, Jeremy Woods, and Kenny Davidson were working at a Big
Lots store on 5321 Vineland Avenue in North Hollywood. The
store was set to open at 9:00 a.m. When Mendoza walked into
the warehouse, he saw two African-American men wearing
masks. Davidson was on the ground with his hands tied with zip
ties. Woods later walked into the warehouse and was ordered to
the ground and also tied up. One of the masked men pointed a
gun at Mendoza and asked if he was the manager. When
Mendoza said yes, the man pointed the gun directly at Mendoza’s
head and said, “Take me to the office.”

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Inside the office, one of the men pointed a gun at Mendoza’s
head and ordered him to open the safe. When Vega walked into
the office, one of the men knocked him down to the ground. Once
the safe was open, Mendoza was knocked to the ground as well.
The gunmen put about $1,700 into a pillow case and fled.
c. 99 Cents Store (Los Angeles) [count 27].
On November 9, 2007, at 4:45 a.m., Felipe Cabezas was
working at a 99 Cents Store at 6121 Wilshire Boulevard in Los
Angeles. The store was not scheduled to open until 10:00 a.m.,
but other employees were expected to arrive at 5:00 a.m. When
someone knocked, Cabezas opened the door, thinking it was some
of his employees, but two men came in with guns. Cabezas
thought they “sounded African-American.” One of them pointed a
gun at Cabezas’s head and said, “Open up the safe, cuz.” As
Cabezas began walking to the front of the store where the safe
was located, one of the men kept a gun pointed at his head. After
Cabezas opened the safe, he was tied up. The men took about
$2,000 and ran from the store.
d. Whole Foods Market [counts 25–26].
On November 13, 2007, at about 4:45 a.m., Sanford Jenkins
arrived at the Whole Foods Market located at 19340 Rinaldi
Street in Northridge to deliver bread. A dumpster at the loading
dock was blocking his way and there was an African-American
man near the dumpster who “did not belong there.” After
parking his truck, Jenkins was walking toward the store to get
help moving the dumpster when he was stopped by two African-
American masked gunmen, one of whom was the person who had
been near the dumpster. The men pointed their guns at Jenkins
and very forcefully dragged him into the store.
Jorge Lopez was in his office at the Whole Foods warehouse
when he heard some noise. Two African-American men suddenly
appeared, one of whom grabbed Lopez and held a gun to his neck.

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The other man pointed his gun at Jenkins. The gunmen had
their faces covered and Lopez could only see their eyes. They
both wore gloves.
Jenkins was assaulted: “They knocked [Jenkins] to the
floor, facedown. They had his hands tied. They were holding him
down and . . . had the gun against him and said that if he moved
they would kill him.” The other gunman had Lopez take him to
the safe. When Lopez said he did not have the keys to the safe,
the gunman hit him in the head with the gun. Lopez suffered a
cut on his head that required approximately four to six staples to
close. One gunman then brought Lopez back to the warehouse,
forced him to the ground, and tied his hands behind his back.
The gunmen fled.
e. 99 Cents Store (Northridge) [counts 23–24].
At 5:45 a.m. on November 13, 2007, Erick Morino was
working at the 99 Cents Store at 8966 Reseda Boulevard in
Northridge. Moises Suarez, a truck driver, was also in the store.
Morino was in the warehouse when two African-American men
appeared with bandanas covering their faces and heads. Both
men were armed and wore gloves. One of them grabbed Morino,
pointed a gun at his temple and then behind his ear, and
demanded to be taken to the safe. The other gunman grabbed
Suarez and tied his hands behind his back. Morino took the
gunman to the safe, but said he did not have the combination.
The gunman threw Morino to the floor and hit him in the head,
accusing him of being the manager and knowing how to open the
safe. The gunmen fled.
f. Trader Joe’s (Encino) [count 22].
On December 13, 2007, at 11:50 p.m., Manuel Arvizu was
walking to his car after finishing his shift at the Trader Joe’s
market at 17640 Burbank Boulevard in Encino. The store had
closed at 9:00 p.m. Arvizu left through the front doors and

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walked around to the back where he had parked. He saw two
men in the parking lot. One of them was wearing a beanie and a
handkerchief covering the lower part of his face; the other was
wearing a beanie or hood with the same type of handkerchief over
his face. Both men had guns.
The men had Arvizu get on the ground, tied his hands
behind his back, and asked how many employees were inside the
store and if there was a manager. They put Arvizu in the back
seat of his car and said that if he moved he would be shot.
However, Arvizu escaped and ran toward the front of the store.
His manager and a coworker were inside a truck. They untied
him and the three drove around the block while calling the police.
As they passed the store, Arvizu noticed “a Dodge Magnum with
rims” driving slowly out of the alley near the back of the store.
g. Smart & Final [count 21].
About 1:00 a.m. on December 14, 2007, Rafael Sandoval
was working at a closed Smart & Final grocery store as part of
the night crew. Sandoval left the store to retrieve a box cutter
from his car, and while returning he noticed someone wearing a
ski mask behind a trash can. Sandoval ran back into the store
and shut the door. The person followed him and tried to enter,
but Sandoval held the door shut and eventually the man ran
away. A video recording from the store’s surveillance cameras
showed two suspects running toward the back alley shortly after
the attempted break-in.
h. Trader Joe’s (Los Angeles) [counts 14–20].
On December 23, 2007, at 10:40 p.m., Laura F., Victor
Tyler, Tim Wilkinson, Jose Henriquez, Raoule Reveles, and
Monique Valencia were working at a Trader Joe’s store at
10850 National Boulevard in Los Angeles. The store had closed
at 9:00 p.m., and the employees were cleaning up and restocking.

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Valencia went to the alley to throw away the trash. As she
returned to the store, two African-American men followed her.
Henriquez was in the warehouse when he noticed two armed
African-American men inside the store. One stood behind
Henriquez and touched the back of his head with a gun, while the
second one pointed a gun an inch from Henriquez’s forehead. The
second gunman searched Valencia and Henriquez, taking
Valencia’s cell phone. The second gunman was wearing a loose
“hoodie-type” mask with eyeholes, and Henriquez saw some scars
through the eyeholes. The second gunman had Henriquez and
Valencia lie down on the floor, pulled out a rope, and tied both
Henriquez’s and Valencia’s hands behind their backs. The
gunman was wearing gloves.
From there, the gunmen moved on to neutralize the other
employees. Reveles was tackled from behind by one of the
gunmen who put a gun to his head and told him not to look up.
Reveles did as he was told because he did not want to die. The
gunman tied Reveles’s hands with a thin rope and took him to
the back of the store. The gunman left and later returned with
Tyler, whose hands were also tied.
Wilkinson was working in the grocery aisle when he saw
two African-American men wearing ski masks and black hoodies.
One of them put a gun to Wilkinson’s back and said, “Don’t
move.” He was taken to the back of the store where he saw
Reveles on the ground with the other gunman pointing a gun at
his head. Wilkinson said he could open the safe. Reveles was
taken to the walk-in refrigerator; other employees were already
inside.
The first gunman left the warehouse and walked into the
store, toward the front office area that the employees called “the
pit.” Laura was working there, handling paperwork and money.
She noticed an African-American man walking from the freezer

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section toward the cash registers. He wore a mask with
“eyeholes” and a black hoodie, and carried a handgun. The man
pointed a gun at Laura and ordered her to open the safe. When
she said she could not because she just was a manager-in-
training, he moved her out of the pit and took her to a different
part of the store where he sexually assaulted her.
Meanwhile, Wilkinson used a six-digit code to open the
safe, which had a 15-minute time delay. When Laura was
subsequently taken to the walk-in refrigerators, Reveles, Tyler,
Henriquez, and Valencia were already inside with their hands
tied behind their backs. Henriquez noticed that the gunman who
brought Laura to the refrigerator was the one who had been
standing behind him in the warehouse; he had two small scars
underneath his right eyelid and had a lazy left eye. The other
gunman had some scars above his left eye.
Once the 15-minute time delay had passed, the gunmen
took about $6,500 from the safe and left the store after using zip
ties to bind Wilkinson’s hands behind his back.
i. Washington Square Market [counts 11–13].
At about 5:50 a.m. on December 31, 2007, Pamela
Roberson—general manager for the Washington Square Market
at 4040 Washington Boulevard—was opening the store. She and
her employee, Hector Gamma, opened the front door together.
While Gamma opened the gate, Roberson went back inside to
turn off the alarm.
Two African-American men wearing ski masks approached
Gamma. One of the men pointed a gun at Gamma’s back while
the other went into the store after Roberson. When the gunman
pushed him, Gamma threw his coffee at him; a struggle ensued
during which the gunman beat Gamma and then dragged him
into the store at gunpoint.

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After Roberson turned off the alarm, she saw an African-
American man come into the store with a gun. He pointed it at
her head and said, “Take me to the safe.” The gunman wore a ski
mask and a hoodie sweatshirt. Roberson took him to the safe
inside the office and opened it. The gunman took about $37,800
from the safe and put the money in a pillow case. The gunman
tied Roberson’s hands and feet with blue ropes while she was on
the ground face down. The gunman left the office.
Subsequently, Roberson picked out Glenn Boldware’s
picture from a six-pack photographic lineup and identified him as
the gunman who had taken her to the office safe.
j. Boldware’s death and Harris’s subsequent
robberies.
Boldware was shot and killed by Los Angeles police officers
on January 4, 2008. Thereafter, Harris carried out a few
robberies by himself (and one with an unidentified accomplice),
before being joined by defendant Nelson for the last robbery
attempt on July 11, 2008, a crime which immediately led to their
arrest.
k. Goodyear Tire [count 10].
On May 10, 2008, Jose Sanchez was working as the cashier
at an International House of Pancakes (“IHOP”) restaurant on
the 6500 block of Laurel Canyon in North Hollywood, next to a
Goodyear Tire store. Shortly before 7:00 a.m., Sanchez saw an
African-American man wearing a beanie and a hoodie sweatshirt
at the glass front door of IHOP trying to get in. The man was
carrying a backpack. Sanchez waved his hands indicating that
the restaurant was not open yet. The man walked away.
At about 7:00 a.m., Gregory Chesney and Carlos Lemus
were working at the Goodyear Tire store. Lemus was in the office
when he saw through the windows an African-American man
outside walking toward the front glass door, and putting on black

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sunglasses and a hood over his head. Because the man was also
carrying a plastic bag which appeared to contain aluminum cans,
Lemus thought he was homeless. The man pulled out a gun from
his waistband and walked into the store. Lemus ran out the door
and went to the IHOP restaurant next door to call the police.
Chesney was inside the store when an African-American
man wearing a hoodie over his head and a mask partially
covering his face came into the store carrying a blue bag. The
man pointed a gun at Chesney and told him to get on the floor.
The man then grabbed Chesney’s collar, lifted him off the ground
and asked, “Where’s the money?” When Chesney said the money
was in the safe, the gunman ordered Chesney to open it.
Chesney had difficulty opening the safe and the gunman said, “If
you don’t open it now, I’m going to fuckin’ kill you.” Chesney
eventually opened the safe. The gunman took about $620, put
the money in his bag, and left the store.
On June 4, 2008, Sanchez, Chesney, and Lemus were
separately shown a six-pack photographic lineup in which
Harris’s photograph was in position three. Sanchez identified
Harris’s picture and wrote, “Not 100 percent, but No. 3 looks
similar to the guy that tried to come in the door from IHOP.”
Chesney identified Harris and the person in position two as
having the same complexion as the robber, and identified Harris
as having the same build as the robber. Lemus also identified
Harris and the person in position two as most resembling the
robber.
l. The Lodge Steakhouse [counts 37–38].
Linda Bemiller was the manager of The Lodge Steakhouse,
14 North La Cienega Boulevard in Beverly Hills. At about
1:00 a.m. on May 14, 2008, she had closed the restaurant and was
working in the office with a friend, Benjamin Lee. An African-
American man wearing a ski mask came into the office. Because

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the gunman’s ski mask was “loose” or “stretched out so it was
falling down,” he pulled it up a few times. Bemiller could see his
whole face. The man pointed a gun at Bemiller’s face and told
her to give him all the money. Both Bemiller and Lee initially
thought someone was playing a prank, but then the man
chambered a round in the gun. He ordered Bemiller to open the
safe and she did.
The gunman told her to put everything into his backpack.
The gunman took between $3,000 and $5,000 and left.
Meanwhile, Lee remained on the floor, where the gunman had
ordered him to stay. Lee testified that the whole time “I was on
my stomach and I had my face propped up on my hands. I
wanted to get as much detail as possible—memorizing, staring at
him—while he was busy trying to get the money out of the safe.”
Lee testified he could see the gunman’s eyes and mouth through
the opening of his ill-fitting ski mask. Both Bemiller and Lee
noticed that the gunman had a “lazy eye” that did not face
forward. The day after the robbery, Lee identified Harris as the
robber in a photo array.
m. Best Buy Market [counts 5–9].
At 5:15 a.m. on May 29, 2008, Rafael Ramirez, Jose Amaya,
Norberto Gonzalez, and Arturo Baeza were working at the Best
Buy Market at 2250 Pico Boulevard in Los Angeles. The store
was not yet open for business, but the back door was open. A
man wearing a handkerchief that covered the bottom portion of
his face pointed a gun at Baeza’s face and asked for money.
Baeza said the money was in a safe, but that he did not have the
keys. They saw Ramirez cleaning the aisles, and the gunman
took both Baeza and Ramirez to the storeroom. Gonzalez and
Amaya were already there, sitting on the floor with a second
gunman pointing a gun at them. Baeza turned around and tried
to disarm the first gunman, but he hit Baeza in the head with the

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gun. Baeza suffered a cut that required three staples to close.
Gonzalez described both gunmen as African-American men
wearing masks and gloves. A few hours later, Baeza was shown
a six-pack photographic lineup and identified Harris in
position three as the man who had hit him in the head with a
gun.
n. Lawry’s Prime Rib restaurant [counts 1, 2 & 4].
At 5:50 a.m. on July 11, 2008, Walter Eckstein was working
as the executive chef at Lawry’s Prime Rib restaurant in Beverly
Hills. The restaurant was closed for business at the time.
Eckstein saw a man come through the rear delivery door wearing
dark clothing and holding a gun. Suddenly a second man, whose
head was covered, grabbed Eckstein from behind and put a gun
to his forehead. Eckstein was ordered to open the safe, but he
said he could not. The men had Eckstein lie on the floor and one
of them tried to tie his hands, but failed. The two men left the
restaurant suddenly.
Within a few minutes, Detective Robert Kraus of the Los
Angeles Police Department came in and spoke to Eckstein. An
hour later, Detective Donald Walthers drove Eckstein to the area
of San Vincente and Fairfax for a field lineup. Eckstein could not
identify the robbers because he never saw their faces, but he said
that Harris’s and Nelson’s clothing and size appeared to be
similar to that of the robbers.
2. The police investigation.
In November 2007, Detective Tracey Benjamin was
assigned to investigate a string of commercial robberies that
someone had nicknamed the “The Morning Masked Bandits”
case. On November 13, 2007, Benjamin went to the Northridge
99 Cents Store where an attempted robbery had occurred earlier
that morning. She discovered that surveillance camera footage
from a nearby business showed a Dodge Magnum driving down

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an alley next to the 99 Cents Store about 50 minutes before the
crime. About a month later, Benjamin learned that a victim had
observed a similar Dodge Magnum at the time of a robbery at the
Trader Joe’s in Encino.
In January 2008, police located and searched Glenn
Boldware’s Dodge Magnum. Inside the car, they found a stocking
cap, a pair of white cotton gloves, seven pieces of rope, a pair of
white latex gloves, a pair of blue latex gloves, a Department of
Motor Vehicles (DMV) registration card, and two AT&T phone
receipts for the number (323) 314-1562. The DMV registration
for the Dodge and the phone receipts were in Boldware’s name.
In the trunk, the police found a nylon stocking tied in a knot, a
knit cap, a pair of black cloth gloves, two pieces of red and yellow
checkered rope, two pieces of black rope, several pieces of white
rope, and several blue latex gloves.
Benjamin testified the items recovered from Boldware’s
Dodge perked her interest: “The ropes, they were very unique in
nature. One of the ropes appeared to be identical to the one that
was used to tie up Manuel Arvizu at the Trader Joe’s [in Encino].
There was blue rope with some yellow design, and that rope
appeared to be identical to the one used in the Washington
Square Market. There were several pieces of white rope that
were cut, several pieces, and those ropes appeared to be identical
to the ones used at the . . . other Trader Joe’s where the sexual
assault occurred. [¶] There was [sic] also beanies and gloves,
and there was a beanie, in particular, that had holes cut out.”
Benjamin then obtained a warrant to search Boldware’s house at
4846 Saint Elmos Drive. There she found several lengths of blue
rope that had “yellow and red threading or weave through it.”
She also found a black cloth rope inside Boldware’s house.
Based on the AT&T cell phone receipts, Benjamin obtained
the call data for phone number (323) 314-1562, which was

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Boldware’s cell phone. Analysis of that data revealed the phone
number of a possible second suspect: defendant Harris. The
police located Harris’s residence at 133 North Eastwood in
Inglewood, and confirmed that his vehicle was a burgundy Ford
F-150 truck. Beginning on May 30, 2008, a large team of
detectives began a 27-day-long surveillance of Harris to see if he
was involved in these crimes. On 12 of those 27 days, Harris
spent time with defendant Nelson visiting more than 60 different
businesses. Rather than going shopping, it appeared the
defendants were searching for places to rob.
For instance, on June 1, 2008, the surveillance team
observed Harris, at about 9:15 p.m., pick up Nelson in his truck
and drive to a CVS pharmacy at Workman and Broadway Streets
in Los Angeles, where they remained parked for a few minutes
before driving off. They drove to a Jon’s market in North
Hollywood and remained there for five minutes. They next drove
to a CVS pharmacy at Willis and Ventura Boulevard, and then to
a Best Buy in Van Nuys. The defendants remained at the Best
Buy for about three minutes. Around 11:40 p.m., they drove back
to the Jon’s market in North Hollywood, parked, and walked
around. They left after 15 minutes.
Defendants next drove to a Gelson’s market in Valley
Village where Harris stopped and walked around the parking lot
pretending to pick up trash. He also crawled around some
bushes while watching the market’s front entrance. The store
was closed for business at that time, but its lights were on and
there were people working inside. Harris eventually returned to
his truck and drove off. The defendants drove to a Vallarta
market in North Hollywood, to a Ralphs market on Laurel
Canyon and Roscoe, and then to a 99 Cents Store in North
Hollywood, where they sat in the parking lot for almost an hour.
At about 3:00 a.m., defendants drove to a Smart & Final store on

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Laurel Canyon and Kittridge in North Hollywood, parked for
about 12 minutes, and then drove to a small market on Daily and
Main, then back to the CVS pharmacy on Workman and
Broadway. At 4:45 a.m., defendants drove to a Smart & Final
store in East Los Angeles. They then drove to a Vallarta market
on Whittier and Lorena, a Top Value market on Ferris and
Whittier, Steven’s Steakhouse on Eastern and Stevens, a Pep
Boys store on Artesia and Passage, and finally—at 6:15 a.m.—to
a Stater Brother’s market on Palm and Artesia.
There was similar detailed testimony regarding other
excursions undertaken by the defendants and observed by the
surveillance team.
3. The arrest at Lawry’s Restaurant.
Starting at about midnight on July 11, 2008, the
surveillance team followed the defendants to various stores: a
Kmart, a Vallarta market, a Gelson’s market, and a Marshalls
store.
At about 5:30 a.m., the defendants drove to the Lawry’s
restaurant in Beverly Hills. The surveillance team saw a man,
who appeared to be a restaurant worker, come out of the
restaurant, walk to a car, and then go back inside. Shortly
thereafter, the defendants were seen going through the same
door. Nelson was wearing a navy blue hoodie and dark pants,
and he was carrying a black duffel bag; Harris was wearing a
black hoodie and light colored pants. Defendants came back out
in less than a minute and hid behind some dumpsters. They
remained hidden for a minute and then ran back into the
restaurant. They came back out again after a few minutes,
climbed over a wall, and disappeared. Other officers saw
defendants run toward Harris’s truck and saw Nelson throw a
black bag into the back. The defendants drove off.

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At 5:54 a.m., the police stopped Harris’s truck. One of the
officers saw Harris point a firearm at another officer and a
gunfight ensued, during which Nelson was injured and the
defendants were arrested. Harris had a handgun in his
waistband. In the bed of the truck, police found a black bag with
10 zip ties and a second handgun. Inside the truck’s passenger
compartment police found: a bag containing a pair of gloves,
three black half-masks that “cover[ ] the lower portion of the
face,” a black hoodie sweatshirt, black and white zip ties, and
more gloves. A cardholder on the front passenger seat contained
a AAA card, a DMV registration card, and a social security card—
all in Nelson’s name.
4. The cell phone evidence.
Melissa Sandoval, a Verizon Wireless employee, testified
about Verizon records containing subscriber information and call
histories. She had reviewed “call detail records” for the telephone
number (818) 915-1138 (an account in the name of Harris)1 and
for the number (323) 314-1562 (an account in the name of
Boldware). Sandoval identified a document (hereafter, the “L.A.
Cell Sites” document) identifying “cell site information for cell
sites within the Los Angeles County area. It provides the switch
information, as well as the corresponding cell sites. It also lists
addresses for those cell sites.” Asked to define “cell site,”
Sandoval testified, “A cell site is essentially a—it’s not [always] a
tower, but it transmits signals to and from wireless devices, so
it’s what enables calls to be placed and received on a network.”
The cell site could be a tower or just a device “attached to a
1 The name on the account was Felton Bradford, but it was
undisputed at trial that Bradford and Harris were the same
person.

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building.” “Within an urban area or city, the average range in
the tower is anywhere between one and three miles.”2
Sandoval testified that using the L.A. Cell Sites document
and the call detail records, the physical locations of “the cell sites
. . . for a particular call” could be determined; that is, you could
learn which “cell tower is being used” during a phone call. Such
an analysis would show the cell site or tower used, the direction
of the call (whether incoming or outgoing), the number that was
dialed, the calling party’s number, and the duration of the call.
Sandoval agreed with the trial court that this analysis “indicates
the tower that was used when the call was made.” (Italics
added.)
Ellen Fama worked as a “crime intel analyst” for the Los
Angeles Police Department specializing in “phone record
analysis.” She testified that she uses a software program called
Penlink to collate the data described by Sandoval. This allows
her to learn “[w]ho’s calling who, where is the phone located.”
The following colloquy occurred:
“A. This is a report generated from the Penlink software.
It’s showing the . . . time, duration, the number that was dialed,
the dialed name, the general location, or the switch of the tower,
and then the tower. The last column is the address of the tower.
“Q. And the address of the tower, are you able to get that
. . . by looking also at the L.A. Cell Site’s file?
“A. Yes. What happens is when we get the raw data, we
marry the call records with the cell site list to identify the towers
and be able to get the addresses.”
2 Sandoval testified that, in rural areas, the towers “cover a
wider area” because “there’s less population so we need the
towers to cover a greater area, so they’re tuned that way. And
they’re not in use as much as towers in the city, so we don’t need
as many so they’re spread farther apart.”

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Fama testified that by using call records she could
determine “which tower was being used for each call.” She is
then able to put that information on a map and thereby
determine “this is where the phone was.”
Fama testified she analyzed the cell phone records related
to Harris’s cell phone number (818) 915-1138, and Glenn
Boldware’s cell phone numbers (323) 314-1562 and (323) 932-
9624.3 Fama gave the following testimony regarding the dates
and times of specific cell phone calls between Harris and
Boldware that corresponded to the dates and times of the charged
crimes.
On October 7, 2007, there were several calls between
Harris and Boldware from 7:35 p.m. to 8:30 p.m., and these calls
utilized a cell site that was located 260 yards from the Anawalt
Lumber store. There had been a total of 32 calls between Harris
and Boldware on October 7.
On November 2, 2007, there were a total of 19 calls
between Harris and Boldware. Between 2:08 a.m. and 3:36 a.m.
there were two calls. Fama testified that during this time “two
towers . . . were hit,” one of which was 0.962 miles from the Big
Lots store.
On November 9, 2007, at 4:12 a.m., there was one call
between Harris and Boldware. This call used a cell site located
0.847 miles from the 99 Cents Store.
On November 13, 2007, there were a total of 34 calls
between Harris and Boldware. Boldware called Harris twice
between 4:12 a.m. and 4:15 a.m., calls that used a cell tower
located 1.87 miles from the Whole Foods Market. On the same
date, between 4:49 a.m. and 5:54 a.m., there were four calls
3 Fama described this second phone number as an “alternate
number associated with the subscriber Glen[n] Boldware.”

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between Harris and Boldware using one tower, and then a fifth
call using a different tower. These cell towers were located
0.474 miles and 2.03 miles from the Northridge 99 Cents Store.
On December 13, 2007, between 11:21 p.m. and 11:49 p.m.,
there were 10 calls “hitting” two different cell towers. The Encino
Trader Joe’s is located 1.26 miles from one of these towers and
1.96 miles from the other. During that entire day, there were
71 calls between Harris and Boldware.
On December 14, 2007, between 12:27 a.m. and 12:57 a.m.,
there were 12 calls using cell towers that were located
0.556 miles and 2.01 miles from the Smart & Final store.
Throughout the entire day, there had been 70 calls between the
two men.
On December 23, 2007, between 10:16 p.m. and 11:37 p.m.,
there were six calls between the two men that “hit” cell towers
located 423 yards and 0.432 miles from the Trader Joe’s market
on National Boulevard. There were a total of 100 calls between
the two men that day.
On December 31, 2007, there were a total of 54 calls
between Harris and Boldware, of which six “hit” a cell site located
0.453 miles from the Washington Square Market between
5:01 a.m. and 5:48 a.m.
Fama also reviewed cell phone records for the telephone
number (424) 296-0535, which belonged to Monique Valencia, the
Los Angeles Trader Joe’s clerk whose phone had been stolen
during the robbery on December 23, 2007. On December 24,
2007, there were incoming calls at 1:07 a.m. and 9:21 a.m., and
an incoming text message at 9:22 a.m. The calls used a cell
phone tower located 0.305 miles from Boldware’s residence.
The defendants did not present any evidence.

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5. Trial outcome.
Both Harris and Nelson were convicted of conspiracy to
commit robbery, attempted robbery, and possession of a firearm
by a felon (Pen. Code,4 §§ 182/211, 664, 211, [former] 12021). In
addition, Harris was convicted of six more counts of attempted
robbery, five counts of assault with a firearm, seven counts of
robbery, 14 counts of false imprisonment by violence, sexual
battery by restraint, and one additional count of possession of a
firearm by a felon (§§ 664/211, 245, 211, 236, 243.4, [former]
12021). As to both defendants, the jury also found true personal
firearm use, prior serious felony conviction, and prior prison term
allegations. (§§ 12022.5, 12022.53, 667, subds. (a)–(i), 667.5).
Harris was sentenced to prison for a term of 620 years to life, and
Nelson was sentenced to prison for a term of 50 years to life.
CONTENTIONS
Harris and Nelson contend the trial court erred by denying
their motion to suppress evidence obtained by use of a GPS
tracking device affixed to Harris’s vehicle.
Harris contends his convictions must be reversed because
the prosecution misused certain cell phone evidence and defense
counsel was ineffective for failing to rebut that evidence.
Harris and Nelson contend there was cumulative error.
Nelson contends his sentence was improperly enhanced
with two prior serious felony conviction findings under
section 667, subdivision (a).
DISCUSSION
1. Motion to suppress evidence was properly denied.
Defendants contend the trial court erred by denying their
motion to suppress evidence obtained when the police secretly
4 All further statutory references are to the Penal Code
unless otherwise specified.

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affixed a GPS tracking device to Harris’s truck without a search
warrant. We conclude the trial court properly denied the
suppression motion because the police were acting in good faith
reliance on the state of the law at the time.
a. Standard of review.
“The Fourth Amendment provides ‘[t]he right of the people
to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated . . . .’
(U.S. Const., 4th Amend.) This guarantee has been incorporated
into the Fourteenth Amendment to the federal Constitution and
is applicable to the states. [Citation.] A similar guarantee
against unreasonable government searches is set forth in the
state Constitution (Cal. Const., art. I, § 13) but, since voter
approval of Proposition 8 in June 1982, state and federal claims
relating to exclusion of evidence on grounds of unreasonable
search and seizure are measured by the same standard.
[Citations.] ‘Our state Constitution thus forbids the courts to
order the exclusion of evidence at trial as a remedy for an
unreasonable search and seizure unless that remedy is required
by the federal Constitution as interpreted by the United States
Supreme Court.’ [Citation.]” (People v. Camacho (2000)
23 Cal.4th 824, 829–830, fn. omitted.)
A reviewing court must uphold the trial court’s factual
findings if they are supported by substantial evidence. (People v.
Williams (1988) 45 Cal.3d 1268, 1301, disapproved on other
grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) “The
question of whether a search was unreasonable, however, is a
question of law. On that issue, we exercise ‘independent
judgment.’ [Citations.]” (People v. Camacho, supra, 23 Cal.4th at
p. 830.)

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b. Factual background.
At the suppression hearing, Detective David Friedrich
testified that between May and July, 2008, he participated in an
undercover (plain clothes and unmarked cars) surveillance effort
aimed at defendant Harris. Sometime after May 30, he placed a
battery-powered GPS tracking device on Harris’s pickup truck
while it was parked on a public street. At the time Friedrich
affixed the device, his understanding of the existing state of the
law was that police were permitted to place such a device on a
vehicle without a search warrant if the affixing was done in a
public place. He had been trained that a search warrant was
required only if he hardwired the device to the vehicle, e.g., by
powering the GPS device from the vehicle’s own battery.
Asked if the GPS device had “recording capabilities,” the
following colloquy occurred:
“The witness: The GPS device has a memory that we use
[but] . . . none of the movements [ ] the vehicle made were saved.
“By Mr. Nelson:
“Q. Is there any reason why they weren’t made or saved?
“A. We utilize the GPS in our surveillance . . . just to locate
the vehicle to begin physical surveillance of the pickup [truck],
and that was the only reason why we utilized the device, so we
can come in in the afternoon, and if the car wasn’t there, we
weren’t wasting our time waiting for the vehicle to show back up
on [sic] the house. [¶] We would just dial it up and then respond
to the location of the vehicle and begin a physical surveillance.”
Detective Friedrich could not recall specifically who made
the decision to install the GPS device on Harris’s truck, but he
thought it had probably been Detective Tracey Benjamin, the
detective in charge of the case.
Friedrich testified the device had to be replaced “a few
times.” Each time, the truck was in a public place.

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The trial court denied defendants’ suppression motion
because at the time the GPS device was used in this case, the
United States Supreme Court had not yet decided United States
v. Jones (2012) 565 U.S. 400 [132 S.Ct. 945] (Jones), which held
that “the Government’s installation of a GPS device on a target’s
vehicle, and its use of that device to monitor the vehicle’s
movements, constitutes a ‘search.’ ” (Id. at p. 404, fn. omitted.)
Prior to that time, controlling precedent in California allowed
tracking devices to be placed on the underside of vehicles without
a warrant because “installing an electronic tracking device on the
undercarriage of defendant’s truck did not amount to a search
within the meaning of the Fourth Amendment.” (People v.
Zichwic (2001) 94 Cal.App.4th 944, 953 (Zichwic).) The trial
court concluded that Friedrich’s testimony was credible and that
he had acted in reasonable good faith.
c. Discussion.
In 2012, the United States Supreme Court in Jones “held
that the government’s attachment of a GPS tracking device to the
defendant’s vehicle and use of that device to monitor the vehicle’s
movements on public streets was a search within the meaning of
the Fourth Amendment and thus required a warrant.”5 (People v.
Mackey (2015) 233 Cal.App.4th 32, 94 (Mackey).) “Jones changed
the law in California. Prior to Jones, California state courts and
the Ninth Circuit had held that installation of a GPS device by
law enforcement authorities was not a search governed by the
Fourth Amendment because a vehicle operator had no reasonable
expectation of privacy in a vehicle's exterior. [Citations.]” (Id. at
p. 95.)
5 Jones concluded a Fourth Amendment search occurred
because the “[g]overnment physically occupied private property
for the purpose of obtaining information.” (Jones, supra, 565 U.S.
at p. 404.)

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“[N]ewly announced rules of constitutional criminal
procedure must apply ‘retroactively to all cases, state or federal,
pending on direct review or not yet final, with no exception.’
[Citation.]” (Davis v. United States (2011) 564 U.S. 229, 243 [131
S.Ct. 2419] (Davis).) However, “Evidence obtained during a
search conducted in reasonable reliance on binding precedent is
not subject to the exclusionary rule.” (Id. at p. 241, italics added.)6
Detective Friedrich installed the GPS transmitter in 2008,
before Jones was decided. At that time, the binding California
appellate precedent was Zichwic, which held that placement of
an electronic tracking device on the undercarriage of a vehicle, by
an officer who was in a place where he or she had a right to be,
did not constitute a search and, therefore, did not require a
search warrant. Hence, the question becomes whether using the
GPS device in this case is entitled to the objective good faith
exception set forth in United States v. Leon, supra, 468 U.S. 897
6 “Our retroactivity jurisprudence is concerned with whether,
as a categorical matter, a new rule is available on direct review
as a potential ground for relief. Retroactive application . . . lifts
what would otherwise be a categorical bar to obtaining redress
for the government’s violation of a newly announced
constitutional rule. [Citation.] Retroactive application does not,
however, determine what ‘appropriate remedy’ (if any) the
defendant should obtain. [Citation.]. . . . As a result, the
retroactive application of a new rule of substantive Fourth
Amendment law raises the question whether a suppression
remedy applies; it does not answer that question. See [United
States v.] Leon [(1984)] 468 U.S. [897,] 906 [104 S.Ct. 3405]
(‘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” ’).” (Davis,
supra, 564 U.S. at pp. 243–244.)

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[104 S.Ct. 3405]. (See People v. Macabeo (2016) 1 Cal.5th 1206,
1219–1220.)
As Harris acknowledges, this issue has already been
squarely addressed by Mackey, where an Oakland Police officer
placed a GPS tracking device on the defendant’s vehicle without a
warrant in 2007 (i.e., five years before Jones was decided). The
device was battery-operated and was installed while the vehicle
was parked in a public place. The device sent signals that could
be tracked in real-time through the Internet. (Mackey, supra,
233 Cal.App.4th at pp. 93–94.) At the suppression hearing, the
prosecutor cited Zichwic and argued the officer had acted in good
faith reliance on case law at the time allowing him to install the
device without a warrant. The trial court agreed that affixing a
GPS device to the exterior of the vehicle did not violate the
defendant’s Fourth Amendment rights. (Mackey, at pp. 94–95.)
On appeal, the Court of Appeal affirmed the denial of the
suppression motion, finding that the “holding in Zichwic was
[the] binding California precedent upon which the police could
reasonably rely in 2007, when they installed a GPS device on [the
defendant]’s vehicle.” (Id. at p. 96.) As in Mackey, here it was
objectively reasonable for the police in 2008 to rely on Zichwic as
the basis for affixing the GPS device to Harris’s truck without a
search warrant.
Harris argues the prosecution failed to produce sufficient
evidence at the suppression hearing to establish a Leon good faith
exception because Detective Friedrich testified he was not the
actual “decision-maker,” i.e., he had been ordered by a superior
officer to affix the device to Harris’s truck. But the guiding test is
objective, not subjective: “[W]e hold that searches conducted in
objectively reasonable reliance on binding appellate precedent
are not subject to the exclusionary rule.” (Davis, supra, 564 U.S.
at p. 232; see also People v. Willis (2002) 28 Cal.4th 22, 33 [“the

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good faith exception . . . is an objective one; [it] does not turn on
the subjective good faith of individual officers”]; United States v.
Sparks (1st Cir. 2013) 711 F.3d 58, 66, fn. 6 [“we do not believe
. . . that Davis requires the government to show actual, as well as
objectively reasonable, reliance”].)
Harris argues Zichwic did not constitute binding appellate
authority because the defendant there “claimed a Fourth
Amendment search violation based only on the installation of the
tracking device. In contrast, appellant here argued the
warrantless attachment of the device and the ensuing prolonged
monitoring was constitutionally prohibited.” But this argument
is misleading because the defendant in Zichwic in effect conceded
he would lose on the monitoring argument given the state of the
law at that time: “We observe that it is a separate question
whether monitoring signals from a tracking device is a search.
[Citation.] The United States Supreme Court has concluded that
monitoring electronic signals does not amount to a search when
the only information provided is what could be obtained through
visual surveillance, such as the movements of an automobile on
public thoroughfares. (United States v. Knotts (1983) 460 U.S.
276, 281–282, 285 [103 S.Ct. 1081, 1085, 1087].) Monitoring does
amount to a search when it reveals information about otherwise
hidden activities inside a residence. (United States v. Karo (1984)
468 U.S. 705, 715 [104 S.Ct. 3296, 3303].) In our case,
monitoring the tracking device simply revealed the movements of
defendant’s truck on city streets.” (Zichwic, supra, 94
Cal.App.4th at p. 956; see United States v. Sparks, supra, 711
F.3d at p. 67 [“[A]t the time of the search in this case, Knotts was
widely and reasonably understood to stand for the proposition
that the Fourth Amendment simply was not implicated by
electronic surveillance of public automotive movements, because
the latter was merely a more efficient ‘substitute . . . for an

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27
activity, namely following a car on a public street, that is
unequivocally not a search within the meaning of the
amendment.’ [Citations.] (Italics added.)”]; United States v.
Pineda-Moreno (9th Cir. 2012) 688 F.3d 1087, 1090 [“T]he agents
attached and used the mobile tracking devices . . . in objectively
reasonable reliance on then-binding precedent. In 2007, circuit
precedent held that placing an electronic tracking device on the
undercarriage of a car was neither a search nor a seizure under
the Fourth Amendment. [Citation.] Circuit law also held that
the government does not violate the Fourth Amendment when it
uses an electronic tracking device to monitor the movements of a
car along public roads. [Citations.]”.)
Harris also argues that section 637.7, enacted in 1998,
negates any good faith exception to imposition of the exclusionary
rule. But this statute says, in relevant part: “(a) No person or
entity in this state shall use an electronic tracking device to
determine the location or movement of a person. [¶] . . . [¶]
(c) This section shall not apply to the lawful use of an electronic
tracking device by a law enforcement agency.” (Italics added.)
Not only do the very terms of the statute contradict Harris’s
argument, but Mackey rejected the same argument: “Defendants
further claim the exact rationale Zichwic relied on—that
defendant did not have a reasonable expectation of privacy—had
been, in their words, ‘explicitly rejected as the policy of this state’
by the Legislature’s enactment of section 637.7. The introductory
section of the enacting legislation included the statement that
‘electronic tracking of a person’s location without that person’s
knowledge violates that person’s reasonable expectation of
privacy.’ (Stats. 1998, ch. 449, § 1.) . . . . [¶] [But the] legislative
statement referred to does no more than establish a general
statewide policy. It cannot define the scope of the exclusionary
rule in California. That definition is contained within the

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‘[t]ruth-in-[e]vidence’ provision of the California Constitution
(art. I, § 28, subd. (f)(2) [formerly subd. (d)]), which prohibits
application of the exclusionary rule to evidence gathered in
violation of state law unless exclusion is compelled by the federal
Constitution. [Citation.]” (Mackey, supra, 233 Cal.App.4th at
p. 97, fn. omitted.)
We conclude the trial court properly denied defendants’
motion to suppress evidence gathered by the GPS device in this
case.
2. The claimed errors involving the cell phone evidence were
not prejudicial to Harris.
Harris raises a number of appellate claims related to the
cell phone evidence presented at trial by Sandoval (the Verizon
employee) and Fama (the police cell phone data analyst). The
underlying contention is that the prosecutor improperly
suggested to the jury that the cell phone tower evidence showed
not only how close the victimized businesses were to the cell
phone towers “hit” or “pinged” by Harris’s and Boldware’s phone
calls, but also how close the businesses were to the cell phones
themselves. Harris argues that it is only the second half of this
evidentiary chain that could reasonably have given rise to an
inference that Harris and Boldware were in close proximity to the
victimized stores when the crimes were committed. The specific
appellate claims raised by Harris are these: the prosecutor
committed misconduct during closing argument by asserting the
jury had been presented with evidence showing the physical
location of the cell phones themselves; Harris’s attorney rendered
ineffective assistance of counsel by not calling a defense cell
phone expert to rebut this assertion; and the trial court erred by
denying Harris’s new trial motion raising this same ineffective
assistance of counsel claim.

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a. Background.
During closing argument, the prosecution outlined its
theory that Harris and Boldware had together committed all of
the crimes up until January 4 (the day Boldware was killed), i.e.,
the crimes at Anawalt Lumber, Big Lots, a 99 Cents Store, Whole
Foods, another 99 Cents Store, Trader Joe’s, Smart & Final,
another Trader Joe’s, and the Washington Square Market. After
Boldware’s death on January 4, 2008, Harris himself robbed
Goodyear Tire and the Lodge Steakhouse. With an unknown
accomplice, Harris tried to rob the Best Buy Market and, finally,
Harris and Nelson together tried to rob the Lawry’s restaurant.
In closing argument, the prosecutor sometimes spoke in
terms of the cell phone evidence having demonstrated the actual
locations of the phones, and sometimes just in terms of
demonstrating which cell phone towers had been “hit” or “pinged”
during calls. For instance, the prosecutor said, “[W]e have both
of those cell sites that were hit less than a mile from the Big
Lots,” and, “Lo and behold . . . [Harris’s] phone is less than a mile
away from the 99 Cents Store.” The prosecutor said both that
“[Harris] is hitting a cell tower less than two miles away from the
Whole Foods in Northridge,” and, “So let’s look at where
[Harris’s] phone was between 11:20 and [11:49]. He’s hitting cell
sites less than two miles away, . . .” And: “So we have Monique’s
phone[7] that is now pinging, is the term that is used, it’s hitting a
cell tower less than a third of a mile from Boldware’s house. . . .
[¶] So what does that mean? . . . Now, remember . . . all that
information did for the police was say, ‘Okay, the phone is
somewhere near this tower on Pico.’ They didn’t know who
Boldware was, so all they had was this big area of where
Monique’s phone was.”
7 This was the cell phone stolen during one of the Trader
Joe's robberies.

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In response to this argument, Harris’s attorney—who
neither called a defense cell phone expert to testify, nor cross-
examined Fama—merely responded that a call between Harris’s
phone and Boldware’s phone did not necessarily mean that
Harris and Boldware were talking [“Now, I think we’re all
familiar with cell phones being passed around from one person to
another”], and that cell phone billing records are very complex
and hard to decipher.
The prosecutor responded by arguing: “[T]hat cell phone
evidence . . . is so . . . overwhelmingly strong against [Harris]
there [are] only two reasonable explanations . . . for the location
of his cell phone next to each of those . . . crime scenes at the
times they occur. There’s only two. [¶] The first reasonable
explanation is that [Harris] was the robber. The other
reasonable explanation, if he was not the robber, is that he was
following the robber to every location, and that is just silly. So
the only reasonable explanation is truly that he was the robber.”
After the jury convicted Harris, a new attorney filed a new
trial motion on his behalf, alleging that Harris had been denied
effective assistance because his trial counsel failed to rebut the
cell phone evidence. The motion alleged that trial counsel had
been “ignorant as to cell phone triangulation and other issues
related to how to rebut that particular evidence,” and that he
failed to furnish his cell phone expert with all the cell phone data
needed for the defense expert to rebut the prosecution evidence.
The motion asserted that Harris had been “convicted of 25 crimes
for which the strongest and sometimes only true evidence against
him was claims that his cell phone was at or near the scene[,] at
or near the time of the incident.”
Attached to the new trial motion was a declaration from
Michael O’Kelly, a cell phone expert whom the defense had

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contacted.8 O’Kelly’s declaration stated the following: “In order
for the government to identify, measure and/or place a cell device
in a location, specific wireless data must be part of the analysis.
It is expected and required that wireless data such as
Beamwidth, Downward Tilt, etc. are the basic elements to begin
to understand the possible RF [sic: presumably ‘radio frequency’]
signal coverage. This would be a starting point to design an RF
signal survey for field testing.” O’Kelly declared this data “was
not in the government Discovery,” that the prosecutor had told
O’Kelly “that all of the wireless data that he was provided was
similarly provided to the defendants,” and that “[u]pon carefully
reviewing the prosecution’s Discovery, there was no cellular
electronic, paper or data in any other form that could be analyzed
to support an opinion by a cellular expert to identify and/or
calculate any distance involving a connection between a cell
phone and cell site in any call activity.”
O’Kelly also asserted: “Applying the existing wireless data
in this Discovery, it is impossible for the prosecution cell phone
witnesses to calculate, identify and/or determine any location of a
cell device in relationship to a single cell site (tower) and a cell
device. RF signals can bypass or jump over one (1) cell site
(tower) and connect onto another. This cell site (tower) jumping
can occur with multiple cell sites (towers). There is no available
wireless support data for the prosecution position and the
position they presented is without merit.” O’Kelly stated that he
“was not able to offer expert advice at trial because Declarant
8 The defense expert’s declaration accompanying Harris’s
new trial motion was not initially included in the clerk’s
transcript, but on March 1, 2016, we augmented the record on
appeal to include the complete new trial motion. The expert’s
declaration is Exhibit A to the new trial motion, and the following
page citations are to the internal numbering of that declaration.

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never received the complete cellular electronic information
necessary to evaluate the cell phone evidence triangulation issues
in this matter. Please see attached emails wherein I requested
information attached hereto as Exhibit ‘B.’ ”9
At the hearing on the new trial motion, the prosecutor
disputed the assertion that O’Kelly had not received all the
available cell phone information, stating: “I personally emailed
to [O’Kelly] the data that was relied upon in this case at the trial.
I sent him the electronic files with regard to the Verizon evidence
that was used.” The trial court commented: “[W]e told [O’Kelly]
on numerous occasions . . . that all of the records were here, and
he doesn’t explain why he didn’t come to court and look at them.”
The prosecutor’s main argument, however, was that the
People had never attempted to present the kind of “triangulation
evidence” that would demonstrate a cell phone’s physical location
at the time a call is made: “If the court will recall, there was no
such evidence presented in this case about a particular location
that a cell phone was during the time of a call. Rather, the
evidence in this case that was presented was a particular phone
number, which the People then proved was connected to the
defendant, made a call or was part of a call at a particular time
. . . that particular call hit off of a particular cell tower, and then
that cell tower was a particular distance from the crime scene
location. [¶] There was no evidence as to where the cellular
telephone was at any particular time.” (Italics added.) The
prosecutor added, “And so the data that was presented was not
where Mr. Harris’s phone was located at a particular date and
9 Attached to the new trial motion were several emails
O’Kelly had sent to Harris’s attorney between June 2012 and
November 2012, complaining about not having received the cell
phone data he required from various phone companies, including
Verizon and AT&T.

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time, but only which cell tower it was using and the distance of
the cell tower to . . . each location of a robbery and/or attempted
robbery.” (Italics added.)
The trial court denied the new trial motion, finding that
Harris’s trial attorney had made a tactical decision not to have a
cell phone expert testify. The court acknowledged the importance
of the cell phone evidence, however: “The court will concede that
the cellular telephone evidence was very significant in this case,
and if an expert did exist, who could impeach this prosecution
evidence, this witness should have been called. However, I don’t
believe on this record that I can make such a finding. [¶] I also
agree with the prosecution that the type of cellular telephone
evidence offered was pretty simplistic and basic, not very
sophisticated, not your triangulation cellular telephone evidence,
which is many times subject to a second expert on the other side.
This was fairly simplistic cell telephone evidence and cell
technology evidence, and I question whether [O’Kelly] could have
actually undermined that evidence.”
The trial court also went on to hold that, even if Harris had
been able to show deficient performance by trial counsel in not
calling a cell phone expert, he could not demonstrate any
resulting prejudice given all the other evidence against him: the
sheer number of calls between Boldware and Harris, when those
calls were made, the evidence of Boldware’s Dodge Magnum car
being at two different crime scenes, the eyewitness
identifications, and the common-scheme evidence. The trial court
noted the evidence showed that Harris and Boldware “always
committed the robberies between basically the hours of 12:00 and
6:00 a.m., that they tried to take over places where there were
few workers, that they . . . told them to open the safe, they had
guns, all of this M.O. evidence was very powerful.” The court
concluded, “There is no other evidence to explain why they’re

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making phone calls in the middle of the night, 18 to 36 phone
calls, Harris and Boldware, except that they are involved with
planning and getting ready to commit morning robberies. [¶]
And then, finally, you have the most significant evidence . . . .
they [i.e., Harris and Nelson] were caught redhanded in the final
situation, the Lawry’s.”
b. Discussion.
Harris argues on appeal: “The prosecutor acknowledged, in
argument on the new trial motion, that there was no evidence
presented as to the location of appellant’s phone. There was
merely evidence of the distance from the cell towers to the crime
scenes. The prosecutor was, indeed, correct that no such evidence
was presented.[10] However, his argument [to the jury] urged
such a conclusion.” Harris asserts, “The prosecutor misled the
jury into thinking that the location of appellant’s cell phone was
close to the cell tower off which his calls pinged. This argument
left the jury with the incorrect inference that the prosecutor knew
of scientific evidence, not presented, which supported this
argument.”
10 We agree with this statement. Although, as we have noted
ante, Fama on a few occasions spoke as though this is what the
evidence showed (i.e., she testified that her data analysis allowed
her to see where the phone is located and “where the phone
was”), taken as a whole her testimony did not purport to prove
any such thing. Her testimony and her exhibits indicated only
the locations of cell towers that had been “hit” during phone calls,
and the distance between those towers and the victimized
businesses. Although Sandoval testified the “average range” of
an urban cell phone tower or cite is “between one and three
miles,” there was no testimony explaining what happens when
the radio wave from a cell phone pings off a tower during a cell
phone call.

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35
Given how clear it is that the evidence presented did not
purport to establish a triangulation analysis (see fn. 10, ante), we
believe that rather than deliberately mislead the jury, the
prosecutor may merely have misspoken when he talked about
where the cell phone was, as opposed to which cell phone tower or
site the phone call had hit. In any event, we need not reach this
issue because, as we now describe, the evidence tending to show
that Harris and Boldware were the “Morning Masked Bandits”
was so strong that it is not probable the outcome would have been
any different had the prosecution (or a defense cell phone expert)
made it clear to the jury that no triangulation analysis had been
done.
Both prosecutorial misconduct and ineffective assistance of
counsel claims require a showing of prejudice. (See Williams v.
Taylor (2000) 529 U.S. 362, 390–391 [120 S.Ct. 1495] [“ ‘[T]he
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.’ [Citation.] [¶] . . . [The defendant] ‘must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’ ”]; People v. Riggs (2008) 44 Cal.4th 248, 298
[“Under California law, a prosecutor commits reversible
misconduct if he or she makes use of ‘deceptive or reprehensible
methods’ . . . and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would
have resulted. [Citation.] Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment
upon the defendant’s invocation of the right to remain silent—but
is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action ‘ “so infected the trial with

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36
unfairness as to make the resulting conviction a denial of due
process.” ’ [Citations.]]”.)
In the present case, defendant’s expert, O’Kelly, did not
complete a triangulation analysis that would have pinpointed the
physical locations of the cell phones when the relevant calls were
made, and it is not clear from the record that it would have been
possible to do so given the available phone company data. More
importantly, it is of course unknown what conclusions such a
triangulation analysis would have reached—i.e., whether it
would have been exculpatory or inculpatory.
We conclude Harris cannot demonstrate the kind of
resulting prejudice needed to sustain his appellate claims. As the
trial court mentioned, there was a great deal of evidence
connecting Harris and Boldware to the so-called Morning Masked
Bandits case. There was evidence that Boldware’s car had been
near the location of two of the victimized businesses (a Trader
Joe’s and a 99 Cents Store). Boldware himself had been
identified by an eyewitness during the Washington Square
Market robbery. Harris was identified by witnesses following the
Goodyear Tire robbery and the Lodge Steakhouse robbery. Two
other victims in the Goodyear robbery made partial
identifications of Harris. In addition, three witnesses had noticed
that one of the perpetrators had a “lazy eye,” and the jury
presumably could see that Harris, too, had a so-called “lazy
eye.”11 Of course, Harris was caught red-handed after the
Lawry’s attempted robbery.
Entirely apart from any claim that the evidence had
actually pinpointed the location of Harris’s and Boldware’s cell
11 The Attorney General asserts that “Harris’s left eye had a
similar condition.” In his responsive brief, Harris does not
dispute this assertion.

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37
phones, there was—as the trial court noted—the evidentiary
weight of the sheer number of phone calls between Harris and
Boldware on days when robberies and attempted robberies
occurred. To take just four of those occasions, during
December 2007, there were: 71 phone calls between them on
December 13; 70 calls on December 14; 100 calls on December 23;
and, 54 calls on December 31. In addition, there was the
remarkable testimony regarding observations by the police
surveillance team that Harris and Nelson spent almost an entire
night traveling from one closed business to another, apparently
searching for potential targets.
The trial court also noted the ample common-scheme
evidence, which was indeed striking. There was consistent use of
guns, masks, gloves, and precut ropes and zip ties to bind the
employees. Such materials were found in the possession of both
Boldware and Harris. Detective Benjamin testified to the unique
quality of some of these items, saying that ropes found in
Boldware’s Dodge “appeared to be identical” to the ropes used in
three of the crimes. Further, in each case the perpetrators
exhibited a level of violence that was both extreme and
gratuitous. Despite being armed and thus having complete
control of their targets, the perpetrators nonetheless repeatedly
engaged in a frightening level of violence: not merely pointing
their guns at the employees, but often holding the weapon right
up to their heads; pistol-whipping some victims; sexually
assaulting one victim; and threatening to kill several victims.
When all this evidence is taken into account, we conclude
Harris would not have been able to prove either ineffective
assistance of counsel or prosecutorial misconduct with respect to
the cell phone evidence because he failed to demonstrate any
resulting prejudice.

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38
3. There was no cumulative error.
The defendants contend the cumulative prejudicial effect of
the various trial errors they have raised on appeal requires the
reversal of their convictions. Because we have not found any
significant prejudicial error, this claim of cumulative error is
without merit. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056
[“Defendant contends the cumulative prejudicial effect of the
various errors he has raised on appeal requires reversal of the
guilt and penalty judgments. We have rejected his assignments
of error, with limited exceptions in which we found the error to be
nonprejudicial. Considered together, any errors were
nonprejudicial. Contrary to defendant’s contention, his trial was
not fundamentally unfair, even if we consider the cumulative
impact of the few errors that occurred.”].)
4. Nelson’s sentence was improperly enhanced by prior
conviction allegations added after the jury was discharged.
Nelson contends the trial court erred by sentencing him on
two out of three prior serious felony conviction enhancements
(§ 667, subd. (a)) because they were not “brought and tried
separately.” This claim is based, in turn, on Nelson’s contention
that the trial court erred by letting the People amend the
information to add additional prior conviction allegations after
the jury had already been discharged. The Attorney General
properly concedes that the latter claim has merit, but then
argues, inconsistently, that the former claim is incorrect. We find
that Nelson’s sentencing claim does have merit, and we will order
that two of the five-year enhancements imposed under
section 667, subdivision (a), be stricken.
The amended information on which the defendants were
tried alleged that Nelson had sustained a number12 of prior
12 We find the parties’ counting of these priors to be
confusing. Both parties assert there were three such priors

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39
serious felony convictions under section 667, subdivision (a),
which provides for “a five-year enhancement for each such prior
conviction on charges brought and tried separately.” (§ 667,
subd. (a)(1).) According to the amended information, all of these
priors arose out of the same 1992 judgment in superior court case
number BA014699. After Nelson’s jury was discharged, and over
his objection, the trial court allowed the People to amend the
information a second time to allege additional prior convictions
under two other superior court cases: a 1981 judgment in case
number A081445, and a 1978 judgment in case number A444411.
According to the Attorney General, the reason for this second
amendment was that “the prosecutor . . . failed to review
[Nelson’s section 969b prison packet] adequately.”
As the Attorney General rightly concedes, it was improper
for the trial court to allow the prosecution to amend the
information to add additional prior conviction allegations after
the jury had already been discharged. As stated by the Supreme
Court in People v. Tindall (2000) 24 Cal.4th 767 “[s]ection 1025,
subdivision (b) provides, in pertinent part: ‘the question of
whether or not the defendant has suffered the prior conviction
shall be tried by the jury that tries the issue upon the plea of not
guilty . . . .’ Section 969a, however, states that prior conviction
allegations may be added ‘[w]henever it shall be discovered that a
pending indictment or information does not charge all prior
felonies . . . .’ We interpreted section 969a to permit the
charged. However, next to the second degree robbery conviction,
the amended information says “(3 cts.),” and next to the
aggravated assault conviction the amended information says
“(6 cts.).” Hence, where the parties count only three section 667,
subdivision (a), allegations, it appears that nine such priors may
have been charged, albeit all stemming from the same superior
court case.

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40
prosecution, on order of the court, to amend the information until
sentencing so long as the court has not discharged the jury.
[Citations.] Notwithstanding section 969a, defendant argues that
section 1025, subdivision (b), prohibits the prosecution from
amending the information to allege prior convictions after the
jury that decided the guilt issue has been discharged. For
reasons that follow, we agree.” (Id. at pp. 771–772, fn. omitted;
accord, People v. Gutierrez (2001) 93 Cal.App.4th 15, 24 [“The
trial court acted in excess of jurisdiction in allowing the
prosecution to file a late, amended information alleging the
Nevada state robbery conviction as a strike prior and as a five-
year enhancement.”].)
Hence, we agree with Nelson that the additional prior
serious felony conviction findings arising from the allegations
added to the information after his jury was discharged must be
vacated.
Nelson next contends that his sentence must be corrected
because, as part of his prison term of 50 years to life, the trial
court included 15 years for three section 667, subdivision (a),
priors, but should have only punished him for one five-year
enhancement. We agree. “[T]he requirement in section
667[, subdivision (a)] that the predicate charges must have been
‘brought and tried separately’ demands that the underlying
proceedings must have been formally distinct, from filing to
adjudication of guilt. Here, as the record plainly reveals, the
charges in question were not ‘brought . . . separately,’ but were
made in a single complaint.” (In re Harris (1989) 49 Cal.3d 131,
136; People v. Deay (1987) 194 Cal.App.3d 280, 286 [“Charges
brought and tried ‘separately’ for purposes of section 667 means
simply that prior formal proceedings leading to multiple
adjudications of guilt must have been totally separate”].)

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41
The Attorney General argues Nelson is wrong because the
priors stemming from case numbers A444411 and A081445 were
brought and tried separately from the prior stemming from case
number BA014699. But it is the Attorney General who is
incorrect because, as discussed ante, the trial court erred by
adding the prior allegations from case numbers A444411 and
A081445 after the jury had already been discharged. Therefore,
the two prior enhancements stemming from case numbers
A444411 and A081445 must be stricken.
However, because—in addition to the 50-years-to-life term
Nelson received on count 1 (for attempted robbery)—the trial
court also sentenced him to a concurrent term of six years on
count 3 (for possession of a firearm by a felon), it is appropriate to
remand this matter so the trial court may consider restructuring
Nelson’s sentence. (See People v. Burbine (2003) 106 Cal.App.4th
1250, 1256 [“the trial judge’s original sentencing choices did not
constrain him or her from imposing any sentence permitted
under the applicable statutes and rules on remand, subject only
to the limitation that the aggregate prison term could not be
increased”]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614
[remand for resentencing proper where original sentence
contained unauthorized enhancement]; People v. Stevens (1988)
205 Cal.App.3d 1452, 1455–1458 [remand for resentencing proper
where original sentence violated “double-the-base-term” rule].)

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DISPOSITION
Harris’s judgment is affirmed. Nelson’s judgment is to be
modified in accordance with this opinion, and the matter
remanded to the trial court for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.

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1
JOHNSON (MICHAEL), J., Concurring.
I concur in the court’s disposition, but I write separately to
state my belief that the prosecutor’s argument regarding cell
phone evidence was entirely proper.
There was evidence from a representative of Verizon
Wireless that the company’s cellular towers have a one-to-three
mile operating range in an urban setting. There was also
evidence that a cell phone used by defendant Harris made or
received calls that were transmitted through cellular towers with
an operating range that included some of the crime scenes. This
evidence supports the inference that Harris and his cell phone
were in the same vicinity as the crimes that were committed.
The inference became stronger (if not compelling) in light of
other evidence: the cell phone use was around the same time
that the crimes were committed, the areas of cell phone
transmission were many miles from Harris’s residence, and the
convergence of cell phone transmission and crime scene location
occurred nine times during Harris’s crime spree. On top of this,
there was evidence of reverse association: a cell phone stolen
from one of the crime scenes made a call that was transmitted
through a cellular tower located in the same operating area as
the residence of Harris’s partner Boldware.
I believe it was appropriate for the prosecutor to argue that
this evidence pointed to Harris’s involvement in the crimes. It
was also understandable why the defense attorney did not object
to this argument during trial.
On appeal, Harris has made arguments about cellular
triangulation and other methods of determining the precise
location of a cell phone transmission. This misses the point. In
the context of the prosecution’s case, it was not necessary to

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2
prove the precise location where a call was made or received. The
point was that calls occurred within the same one-to-three mile
radius as the crime scenes, which were located many miles from
the area where Harris lived and was usually present. Combined
with the additional evidence presented at trial, this pointed
directly to Harris’s involvement in the crimes.
I therefore disagree with any suggestion that the
prosecutor may have misspoken or misled the jury during
argument. I believe the prosecutor’s argument was entirely
proper. (See People v. Wharton (1991) 53 Cal.3d 522, 567 [“ ‘It is
settled that a prosecutor is given wide latitude during argument.
The argument may be vigorous as long as it amounts to fair
comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom.’ ”], quoting
People v. Sassounian (1986) 182 Cal.App.3d 361, 396.)
JOHNSON (MICHAEL), J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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