P. v. Kozee-Stoltz

Filed 8/5/19 P. v. Kozee-Stoltz CA4/1
Opinion on transfer from Supreme Court; Received for posting 8/6/19
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JORDAN PAUL KOZEE-STOLTZ et al.,
Defendants and Appellants.
D069073
(Super. Ct. No. SWF1201090)
APPEAL from a judgment of the Superior Court of Riverside County, Albert J.
Wojcik, Judge. Affirmed in part, reversed in part and remanded.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant Jordan
Paul Kozee Stoltz.
Professional Law Corp. and Susan K. Shaler for Defendant and Appellant
Christopher A. Newsome.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randy Einhorn
and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Jordan Paul Kozee-Stoltz and Christopher Alexander Newsome
(together defendants) of attempting to murder Brylowe Perez and Trenton Buchanan and
found true the allegations that the attempted murder was willful, deliberate and
premeditated. The jury also convicted defendants of second degree robbery, willfully
discharging a firearm at an occupied motor vehicle and street terrorism. The jury found
true that defendants personally used a firearm and that gang enhancements applied to all
but the street terrorism charge. Defendants appealed their convictions. In an opinion
issued in March 2016, we reversed the street terrorism charge and the gang enhancements
attached to the remaining charges and remanded the matter for resentencing.
Newsome petitioned our Supreme Court for review. The Supreme Court granted
review and deferred the matter "pending consideration and disposition of a related issue
in People v. Mateo, S232674 . . ., or-pending further order of the court." In the
meantime, our Legislature enacted Senate Bill No. 1437 (Senate Bill 1437), which
"amend[s] the felony murder rule and the natural and probable consequences doctrine, as
it relates to murder." (Stats. 2018, ch. 1015, § 1, subd. (f).)
Our Supreme Court remanded the matter to us with directions to vacate our
decision and reconsider the cause in light of Senate Bill 1437. We received and
considered supplemental briefing on the issue. We conclude that the impact of Senate
Bill 1437 on defendants' convictions must be assessed by the trial court in the first
instance. Accordingly, we vacate our original opinion issued March 17, 2016, and issue

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this revised opinion addressing defendants' arguments in section III.C. and newly added
section IV.
FACTUAL AND PROCEDURAL BACKGROUND
On an evening in April 2012, Perez and Buchanan were driving around in
Buchanan's Chevy Impala when Buchanan decided to purchase marijuana from Juwan
Carter. After arriving at a residence in Temecula, Buchanan got out of the Impala and
Perez stayed inside. Carter and Buchanan discussed marijuana quality and prices and
Carter then left for a couple of minutes.
Carter returned in a Dodge Charger driven by Stoltz. Carter sat in the back of the
Charger and Newsome was the front passenger. Carter had Buchanan get into the
backseat of the Charger. Stoltz, Newsome and Carter each pointed a gun at Buchanan.
Carter and Stoltz demanded money and told Buchanan, "We're Yarbrough Park Crips and
we kill people." Carter and Stoltz searched Buchanan's pockets. Stoltz took Buchanan's
wallet and Carter took Buchanan's wristwatch and a few dollars. Carter and defendants
then walked Buchanan back to the Impala at gunpoint.
Buchanan ran toward the Impala and yelled at Perez to drive. Buchanan got into
the Impala and Perez sped off. Stoltz followed in the Charger with Newsome and Carter.
Gunfire erupted from the Charger with some bullets hitting the Impala. Eventually, a
police car pulled over the Impala.
In the meantime, Stoltz turned the Charger into a residential neighborhood, Carter
got out of the car, wrapped the three guns in his jacket and hid them in a bush. Another
police car later pulled over the Charger. Among other things, police found Buchanan's

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wallet in the backseat of the Charger. There were also entry and exit bullet holes on the
driver's side hood of the Charger. No weapons were found inside the Charger. At an
infield lineup, Buchanan identified Stoltz as the driver of the Charger and Carter as the
man in the backseat. Buchanan could not identify Newsome. Police found multiple
bullet holes in the Impala. After being taken into custody, Carter led police to the guns.
The police found the guns wrapped in a sweater underneath a bush.
DISCUSSION
I. Admission of Buchanan's Prior Testimony
A. Background
The prosecution moved in limine to have Buchanan declared unavailable and to
admit his preliminary hearing testimony. At the Evidence Code section 402 hearing,
Terese Workman and Todd Marty from the Riverside County District Attorney's Office
testified. With trial scheduled to begin the following month, Workman received
Buchanan's subpoena on December 10, 2013. After determining that Buchanan did not
have a criminal history, she searched the DMV system and located an address. The
following day, she went to the address and spoke to Buchanan's father. Buchanan's father
did not know where Buchanan lived. Workman checked for Buchanan on another law
enforcement system and on Facebook. She identified Buchanan's girlfriend, Janee
Brewton, and a former employer and located an address in San Diego. The former
employer did not have a forwarding address or contact information for Buchanan.
On December 26, 2013, Workman visited Buchanan's mother and grandmother at
a residence in Murrieta. She learned that Buchanan had been at the home the previous

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day to celebrate Christmas, but left that same day. Buchanan's mother did not have an
address for him. Buchanan's mother said she would call Buchanan and his girlfriend and
leave a message, telling him to call Workman.
On January 16, 2014, Marty checked an address where one of Buchanan's relatives
might have been living. Marty located Brewton at another address, who called Buchanan
on her cell phone while Marty was there. Marty talked to Buchanan on Brewton's cell
phone. Buchanan told Marty that he was in Avondale, Arizona. Buchanan gave Marty
two cell phone numbers and his address in Rancho, California. When Marty tried to
contact Buchanan, the numbers that Buchanan had given him were out of service. Marty
called Brewton twice and left two messages, but he never heard back from her. Marty
went to the address in Rancho, California, but the residents did not know Buchanan.
Marty discovered that Buchanan had a court hearing scheduled in January. Marty called
the court's reference phone number for Buchanan and spoke to Buchanan who said he
was still in Arizona and did not want to testify. Marty ran checks on two license plate
numbers associated with Buchanan, but they both came back negative.
After hearing argument from counsel, the trial court ruled that Buchanan was
unavailable and allowed the prosecution to present Buchanan's prior testimony. The
court directed the District Attorney's office to make efforts to locate Buchanan in Arizona
and to try and contact Buchanan if he showed up for his scheduled court appearance.
Buchanan did not show up for his scheduled court appearance. Workman testified that
she had attempted to contact Buchanan in Avondale, Arizona by calling the Avondale
Police Department, but it had no record of him. She also checked a database for

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information on an Arizona address for either Buchanan or his possible associates, but
found nothing. Workman called the phone number where Marty had previously reached
Buchanan, but it was no longer in service.
Defense counsel renewed their objection to Buchanan's preliminary hearing
testimony being read into the record. The court, however, confirmed its prior ruling.
B. Analysis
Defendants contend the prosecutor failed to show due diligence in attempting to
locate Buchanan and claim the court's admission of Buchanan's preliminary hearing
testimony violated their Sixth Amendment right to confrontation. We disagree.
A criminal defendant has a constitutional right to confront prosecution witnesses,
but the right is not absolute. (People v. Cromer (2001) 24 Cal.4th 889, 892.) "An
exception exists when a witness is unavailable and, at a previous court proceeding against
the same defendant, has given testimony that was subject to cross-examination." (Ibid.)
Under this exception, the preliminary hearing testimony of an unavailable witness may be
admitted at trial without violating a defendant's confrontation right. (People v. Herrera
(2010) 49 Cal.4th 613, 621; Evid. Code, § 1291, subd. (a)(2).) A witness is unavailable
when the witness is absent from the hearing and the proponent of the witness's testimony
has exercised reasonable diligence, but has been unable to procure the witness's
attendance by the court's process. (Evid. Code, § 240, subd. (a)(5).) We independently
review the prosecution's claim of good faith and reasonable diligence. (People v.
Herrera, at p. 623.) Factors we consider in determining whether the prosecutor has
shown reasonable diligence include the timeliness of the search, the importance of the

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witness's testimony, and whether leads to the witness's possible location were reasonably
explored. (People v. Thomas (2011) 51 Cal.4th 449, 500.)
On October 22, 2013, the court set the matter for trial on January 9, 2014. The
prosecution began looking for Buchanan on December 10, 2013, 42 days before trial
started on January 21. Defendants complain the prosecution presented no evidence it
communicated with Buchanan after the preliminary hearing and did not timely begin its
search for Buchanan as it knew Buchanan was a reluctant witness.
A prosecutor is not required " 'to keep "periodic tabs" on every material witness in
a criminal case,' " but must take adequate preventative measures to stop a witness from
disappearing when the prosecutor has knowledge of a substantial risk that an important
witness will flee. (People v. Friend (2009) 47 Cal.4th 1, 68.) Here, the evidence shows
Buchanan voluntarily appeared at the preliminary hearing with the enticement that the car
impounded after the incident would then be released if he cooperated. Thus, while
Buchanan can be described as a reluctant witness, the prosecutor had no obligation to
keep in periodic contact with him, and defendants pointed to no evidence in the record
suggesting the prosecutor had knowledge of a substantial risk that Buchanan would
disappear.
Moreover, the prosecution started searching for Buchanan 42 days before the
scheduled trial date, this does not constitute an unreasonable delay. (People v. Fuiava
(2012) 53 Cal.4th 622, 675-676 [search for witness reasonably commenced two weeks
before the start of trial].) Significantly, there is no indication in the record that starting
the search earlier would have made any difference in the prosecution's ability to procure

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Buchanan's attendance at trial. Not discussed by defendants is the fact that the
prosecution investigators spoke to Buchanan, who indicated he was in Avondale, Arizona
and did not want to come to court to testify. At that time, Buchanan provided an address
in Rancho, California that turned out to be false. Buchanan refused to disclose where he
was staying in Arizona or who he was staying with.
While it appears Buchanan came to court on another matter, there is no indication
the prosecution had any advance knowledge he would appear as the record shows he
could have added himself to the calendar by calling, faxing or having an attorney appear.
When the prosecution learned that Buchanan had a scheduled court date, it had
investigators waiting for him, but he never appeared. The prosecution searched for
Buchanan in Arizona by calling the Avondale Police Department and checking a database
for an address or possible associates, but had no success. Defendants note that Buchanan
appeared at his parents' home on Christmas day and criticize the prosecution for not
having investigators waiting there. That day, however, Buchanan could have been with
his girlfriend and child in San Diego. " 'The law requires only reasonable efforts, not
prescient perfection.' " (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
"[W]hen a witness disappears before trial, it is always possible to think of
additional steps that the prosecution might have taken to secure the witness'
presence . . . but the Sixth Amendment does not require the prosecution to exhaust every
avenue of inquiry, no matter how unpromising." (Hardy v. Cross (2011) 565 U.S. 65, 71-
72.) It is speculative to assume that if the prosecution had pursued any other leads, it
would have procured Buchanan's presence at trial. Buchanan failed to appear for a

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scheduled court date and there is no guarantee that, even if the prosecution had served
him with a subpoena, he would have appeared for trial given Buchanan's statement that
he did not want to testify. It seems Buchanan "purposely made [him]self unavailable
because [he] was unwilling to testify." (People v. Diaz, supra, 95 Cal.App.4th at p. 706.)
We reject Newsome's suggestion that he had a different interest and motive in
cross-examining Buchanan at the preliminary hearing than at trial and his criticism that
counsel did not explore all credibility issues at the preliminary hearing. The trial court
here could have reasonably concluded that defendants had much the same interest,
motive, and opportunity to cross-examine Buchanan at the preliminary hearing as at trial.
(People v. Valencia (2008) 43 Cal.4th 268, 294 [interest and motive to cross-examine
need not be identical, only " 'similar' "].) That Newsome would have preferred more
cross-examination during the preliminary hearing is not the test of confrontation. (People
v. Carter (2005) 36 Cal.4th 1114, 1173-1174.)
The totality of the circumstances support the conclusion that the prosecution
exercised reasonable diligence to locate Buchanan; accordingly, the trial court did not err
in allowing Buchanan's preliminary hearing testimony to be read to the jury.
II. Accomplice Corroboration
A. Background
Carter testified that he was currently in custody for attempted murder arising from
the incident and he had an agreement to testify truthfully in exchange for a sentence of 18
years in prison. Carter claimed that he had intended to sell Buchanan $2,000 worth of
cocaine that had been cut with baking soda. Via text message, Carter and Stoltz agreed to

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a plan for Buchanan. Carter had Stoltz bring a gun for himself and a .25 caliber handgun
for Carter. Stoltz picked Carter up in a Charger. Newsome was in the front passenger
seat and Carter sat in the backseat. Carter had the .25 caliber gun in his pocket.
Newsome had a .380 caliber gun and Stoltz had a .45 caliber gun.
Buchanan got into the Charger and claimed he did not have any money. The three
men then pulled out their guns and pointed them at Buchanan's head. Buchanan told
Carter the money was in his car. Carter and Stoltz took Buchanan's wallet and watch,
and Carter ordered Buchanan out of the car. Buchanan ran to the Impala and the car took
off. Carter, Stoltz, and Newsome gave chase in the Charger. Carter and Stoltz fired their
guns at the Impala. Newsome tried to fire his gun but it had jammed and he could not
clear the jam. After police pulled over the Impala, Stoltz turned into a residential
neighborhood. Newsome and Stoltz handed Carter their guns and Carter put all three
guns in his jacket and put the jacket with the guns in a bush.
B. Analysis
Defendants contend their attempted murder convictions must be reversed because
these convictions were based upon Carter's uncorroborated accomplice testimony that
defendants fired a gun or attempted to fire a gun at Perez and Buchanan. We disagree.
A conviction cannot be based only on accomplice testimony. (Pen. Code,1 §
1111.) There must be sufficient corroborating evidence that "shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof." (Ibid.) The
1 Undesignated statutory references are to the Penal Code.

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requisite corroboration "must, without aid from the accomplice's testimony, connect the
defendant to the charged offense, but may be circumstantial, slight and entitled to little
consideration when standing alone. [Citations.] Corroborating evidence need not be
sufficient to establish the defendant's guilt or corroborate the accomplice to every fact to
which the accomplice testified. [Citations.] It must raise more than a suspicion or
conjecture of guilt, and is sufficient if it connects the defendant with the crime in such a
way as to reasonably satisfy the trier of fact as to the truthfulness of the accomplice."
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1177-1178.) Unless we determine
"that the corroborating evidence should not have been admitted or that it could not
reasonably tend to connect a defendant with the commission of a crime, the finding of the
trier of fact on the issue of corroboration may not be disturbed on appeal." (People v.
Falconer (1988) 201 Cal.App.3d 1540, 1543.)
Carter testified that Stoltz fired a .45 caliber gun at the victims and Newsome
attempted to fire a .380 caliber gun at the victims, but the gun had jammed. Carter
further testified that Stoltz and Newsome handed him their guns after the shooting and
Carter wrapped these guns along with the .25 caliber gun he had used in his jacket and
put them underneath a bush in the area near the shooting. Applying the above principles,
we find the following evidence sufficient to corroborate Carter's accomplice testimony
regarding defendants' involvement in the attempted murders of Buchanan and Perez.
A deputy testified that he took Buchanan to an infield lineup after the incident and
Buchanan positively identified Stoltz as the driver of the Charger. Another deputy
testified that Stoltz was in the driver's seat of the Charger after the incident. Buchanan

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testified that Stoltz and Newsome pointed their guns at his face while they robbed him in
the Charger.
A deputy testified that bullet holes in the Charger were consistent with the driver,
Stoltz, sticking his arm out of the window and firing a gun hitting the hood of the Charger
with the bullet then exiting out through the Charger's grill. A bullet hole in the trunk area
of the Impala appeared to be from a .45 caliber gun. After the incident, Carter led
deputies to the bush where he had hidden the guns. The guns, which had been wrapped
in a sweater, were a .45 caliber Taurus, a .25 caliber Sundance, and a .380 caliber gun of
an undetermined brand. The recovered .380 caliber gun had unexpended ammunition in
its magazine and a bullet in its chamber.
Thus, excising Carter's accomplice testimony, we are convinced there was
sufficient independent evidence to connect defendants with the commission of the
attempted murders.
III. Alleged Instructional Error
A. Gang Related Instructions
1. Background
Defendants were charged with street terrorism and it was alleged that they
committed the other crimes to benefit a criminal street gang. At trial, a gang expert
testified that in 2006, Yarborough Park Crips gang members Alazado Tuaolo and
Nicholas Shipman pleaded guilty to, respectively, grossly negligent discharge of a
firearm and residential burglary and both admitted committing the crimes to benefit a
gang.

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The trial court instructed the jury as to the elements of the gang enhancement and
the substantive street terrorism charge. The instructions defined a "pattern of criminal
gang activity" for the jury as the commission of "two or more" of the following crimes.
The instructions listed "burglary" and "grossly negligent discharge of a firearm and admit
crime was committed for the benefit of a criminal street gang" as the crimes that could
constitute a pattern of criminal gang activity.
2. Analysis
Defendants contend the trial court erroneously included grossly negligent
discharge of a firearm as a pattern offense. The People concede the trial court
erroneously included this crime as a pattern offense, but assert the error was harmless
because the current offenses qualified as pattern offenses. The People contend the
evidence and resulting convictions showed defendants committed two pattern offenses as
enumerated in section 186.22, subdivision (e), namely, robbery and discharging a weapon
at a motor vehicle. We disagree that the error was harmless.
"When one of the theories presented to a jury is legally inadequate, such as a
theory which ' "fails to come within the statutory definition of the crime" ' [citation], the
jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a
verdict on the basis of the legally invalid theory without realizing that, as a matter of law,
its factual findings are insufficient to constitute the charged crime. In such
circumstances, reversal generally is required unless 'it is possible to determine from other
portions of the verdict that the jury necessarily found the defendant guilty on a proper

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theory.' " (People v. Perez (2005) 35 Cal.4th 1219, 1233; see also Griffin v. United States
(1991) 502 U.S. 46, 59; People v. Guiton (1993) 4 Cal.4th 1116, 1128.)
The jury convicted defendants of robbery and discharging a weapon at a motor
vehicle, two crimes enumerated in section 186.22, subdivision (e) as pattern offenses.
The jury instructions, however, directed the jury that a "pattern of criminal gang activity"
meant the commission of "two or more of the following crimes," either "burglary" or
"grossly negligent discharge of a firearm and admit crime was committed for the benefit
of a criminal street gang." The court never instructed the jury that it could consider
robbery or discharging a weapon at a motor vehicle as pattern offenses.
Thus, the jury instructions for the gang enhancements and street terrorism charge
in this case permitted the jury to convict defendants of street terrorism and find true the
gang enhancements on an improper legal theory. Reversal is required because there is
nothing in the record to establish that the jury necessarily rejected the improper legal
theory and instead convicted defendants on a proper theory. Accordingly, the street
terrorism convictions in count 5 and the true findings on the gang enhancements
connected to counts 1, 2, 3 and 4 must be reversed and the matter remanded for
resentencing.
B. Unanimity Instruction
1. Background
Stoltz took Buchanan's wallet and Carter took Buchanan's wristwatch and a few
dollars. Inside the wallet, Buchanan had about $60 to $80, his social security card, a gift

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card from McDonald's and other items. During a subsequent search of the backseat of
the Charger, police found Buchanan's empty wallet and the McDonald's gift card.
2. Analysis
Defendants contend that based on varying testimony as to what was taken from
Buchanan while he was in the Charger, either the prosecutor should have made an
election or the trial court erred in failing to give the jury a unanimity instruction with
regard to the robbery charge. We disagree.
A defendant's constitutional right to a unanimous jury verdict requires that when
the evidence shows more than one unlawful act that could support a single charged
offense, the prosecution must either elect which act it is relying upon, or the trial court
must instruct the jurors sua sponte that they must unanimously agree which act
constituted the crime. (People v. Jennings (2010) 50 Cal.4th 616, 679.) A unanimity
instruction is not required, however " 'when the acts are so closely connected as to form
part of one transaction.' " (Ibid.) " 'We review de novo a claim that the trial court failed
to properly instruct the jury on the applicable principles of law.' " (People v. Lueth
(2012) 206 Cal.App.4th 189, 195.)
Here, although the evidence shows Stoltz took Buchanan's wallet, which contained
multiple items, while Carter took Buchanan's wristwatch, the evidence described one
continuous course of conduct that lasted only a few minutes. Thus, no unanimity
instruction was required. (People v. Curry (2007) 158 Cal.App.4th 766, 782 [where
defendant took victim's shoes and phone almost simultaneously during an assault, the
takings formed a single incident of robbery]; People v. Haynes (1998) 61 Cal.App.4th

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1282, 1296 [robbery in which defendant stole some of victim's cash, then drove to
another location and stole more money; no unanimity instruction required].)
C. Attempted Murder Instruction
The jury found Newsome guilty of attempting to murder Buchanan and Perez.
The court instructed the jury it could find Newsome guilty as an aider and abettor under
the natural and probable consequences doctrine. Newsome contends the instructions
were deficient under People v. Chiu (2014) 59 Cal.4th 155 (Chiu), which held an aider
and abettor may not be convicted of first degree premeditated murder under the natural
and probable consequences doctrine. (Id. at p. 166.) Newsome asserts Chiu is equally
applicable to attempted first degree murder, otherwise a defendant can serve a life
sentence without a jury finding either a personal intent to kill or premeditation. Because
the verdict does not reflect under what theory or theories the jury found true beyond a
reasonable doubt, Newsome contends his attempted murder conviction must be reversed.
Newsome acknowledges People v. Favor (2012) 54 Cal.4th 868 (Favor) undercuts his
argument, but asserts Favor presented a different question and Chiu cannot be read as an
endorsement of Favor. We reject Newsome's argument. To the extent Stoltz joins in this
argument, our discussion is equally applicable to him.
In Favor, our high court held that an aider and abettor may be found to have
committed an attempted murder with premeditation and deliberation on the basis of the
natural and probable consequences doctrine. (Favor, supra, 54 Cal.4th at p. 872.) In
Chiu, our high court acknowledged this holding when considering the question of how to
instruct the jury on aider and abettor liability for first degree premeditated murder under

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the natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at p. 162.)
Chiu held that an aider and abettor may not be convicted of first degree premeditated
murder under the natural and probable consequences doctrine, but may be convicted of
first degree premeditated murder based on direct aiding and abetting principles. (Id. at
pp. 158-159.) Our high court limited its ruling in Chiu to first degree premeditated
murder (id. at pp. 166-167), and contrasted this holding with its ruling in Favor, in which
it held that an aider and abettor may be found to have committed an attempted murder
with premeditation and deliberation on the basis of the natural and probable
consequences doctrine (Favor, at p. 872; Chiu, at pp. 162-163). Because Newsome's
convictions were for attempted murder with premeditation, under principles of stare
decisis we are bound to follow Favor. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)
In his supplemental briefing, Newsome asserts that his attempted premeditated
murder conviction is now based on an invalidated legal theory resting on the natural and
probable consequences doctrine, citing Chiu, supra, 59 Cal.4th 155. Stoltz joins in this
argument. Accordingly, defendants contend that their respective convictions for
attempted premeditated murder must be reversed.
As we explained above, Chiu, supra, 59 Cal.4th 155 does not apply to attempted
premeditated murder. Thus, the theory of liability presented to the jury was valid at the
time of trial. As we explain, post in part IV of this opinion, to obtain any relief under
Senate Bill 1437 defendants must follow the petition procedure in section 1170.95.

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D. Willfulness Allegation
The jury found Newsome guilty of two counts of attempted murder and found true
the allegations that he committed the attempted murders willfully, deliberately, and with
premeditation within the meaning of section 664, subdivision (a) (the willfulness
allegation). Newsome notes that the aiding and abetting instructions for the attempted
murder charges omitted any requirement that the jury find the willfulness allegations to
be the natural and probable consequence of aiding and abetting an attempted murder.
Newsome concedes that the jury instructions conformed with the decision in Favor,
supra, 54 Cal.4th 868, but asserts they were nonetheless erroneous under federal law,
asserting the reasoning of Favor was implicitly rejected in Alleyne v. United States
(2013) 570 U.S. 99 (Alleyne). He claims the jury instructions resulted in the jury finding
true the willfulness allegations without finding true beyond a reasonable doubt all the
facts required for such a finding as required by Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi). Accordingly, he asserts the true finding on the willfulness allegations
must be reversed. We reject Newsome's argument. To the extent Stoltz joins in this
argument, our discussion is equally applicable to him.
Under the jury instructions, which defendants concede conformed to Favor, the
trial court instructed the jury on the crime of attempted murder and on the natural and
probable consequences doctrine; namely, to find defendants guilty of attempted murder,
the jurors must find, among other things, that defendants aided and abetted the robbery
and that attempted murder was a natural and probable consequence of the robbery. If the
jurors found defendants guilty of attempted murder, they were then required to determine

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whether the attempted murder was willful, deliberate and premeditated. Defendants
complain that the instructions omitted any requirement that the jury find the willfulness
allegations to be the natural and probable consequence of aiding and abetting an
attempted murder, noting that a true finding on the willfulness allegations increased their
sentences. Newsome argues he intended to commit a robbery, not attempted murder, and
there was meager evidence he, Carter and Stoltz deliberated or premeditated when they
began shooting or attempting to shoot.
While defendants are correct that a true finding on the willfulness allegations
increased their sentences, there is no support in the law or logic that the jurors were
required to find that a willful, deliberate, and premeditated attempted murder was the
natural and probable consequence of robbery in order to find true the willfulness
allegations. First, defendants were not found guilty of the crime of willful, deliberate,
and premeditated attempted murder as there is no such crime. (Favor, supra, 54 Cal.4th
at pp. 876-877 [attempted murder is not divided into degrees and premeditated attempted
murder is not a separate offense from attempted murder].) Rather, the jury found
defendants guilty of attempted murder and it then found true the separate penalty
provision (§ 664, subd. (a)) that the attempted murders were willful, deliberate and
premeditated. (Favor, at pp. 877, 879-880.)
As the Favor court explained, "under the natural and probable consequences
doctrine, there is no requirement that an aider and abettor reasonably foresee an
attempted premeditated murder as the natural and probable consequence of the target
offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of

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the crime aided and abetted, and the attempted murder itself was committed willfully,
deliberately and with premeditation." (Favor, supra, 54 Cal.4th at p. 880.)
Alleyne does not overrule Favor. In Alleyne, the United States Supreme Court
explained that first degree murder would necessarily constitute a separate offense from
second degree murder: "When a finding of fact alters the legally prescribed punishment
so as to aggravate it, the fact necessarily forms a constituent part of a new offense and
must be submitted to the jury." (Alleyne, supra, 570 U.S. at pp. 114-115, italics added.)
This holding is based on Apprendi, supra, 530 U.S. 466, in which the court held that any
fact which increases the maximum penalty for a crime is an element of the offense that
must be found true by a jury beyond a reasonable doubt. (Alleyne, at p. 106.) As we
explained above, willful, deliberate, and premeditated attempted murder is not a crime
and the jurors were properly instructed as to the crime of attempted murder and the
separate willfulness allegations. Accordingly, we reject defendants' argument that the
jurors were required to find that the willfulness allegation was a natural and probable
consequence of aiding and abetting an attempted murder.
E. Credibility Instruction
1. Background
CALJIC No. 2.20 instructed the jury that "[i]n determining the believability of a
witness you may consider anything that has a tendency reasonably to prove or disprove
the truthfulness of the testimony of the witness," including whether a witness is testifying
under a grant of immunity. The instruction also told the jury that it was not limited to the
factors listed in the instruction to determine witness credibility. Newsome requested the

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trial court modify CALJIC No. 2.20 to include a reference to Carter's plea agreement.
The trial court denied the request and instructed Newsome's counsel that he could argue
the effects of Carter's plea agreement.
2. Analysis
Defendants assert the trial court erred in refusing to instruct the jury it could
consider Carter's plea bargain in assessing Carter's credibility. They contend the court's
refusal to instruct on Carter's plea bargain forced trial counsel to argue Carter was
discredited without the benefit of a correct instruction authorizing jurors to do so.
Defendants assert they were entitled upon request to an instruction pinpointing the theory
of the defense, namely, that Carter should not be believed. They argue that the failure to
inform jurors they could and should consider Carter's plea bargain in determining his
credibility deprived them of their federal constitutional rights, and therefore the
judgments of guilt must be reversed because the error was not harmless beyond a
reasonable doubt. The trial court did not err in refusing the requested modification.
A defendant is entitled to an instruction which pinpoints a defense theory. (People
v. Wharton (1991) 53 Cal.3d 522, 570.) Such an instruction is one which "pinpoints the
evidence in the case in the light of defendant's theory of defense and instructs the jury
that the People bear the burden of ultimate persuasion on the issue which the instruction
pinpoints." (People v. Brady (1987) 190 Cal.App.3d 124, 135.) A court is not required
to give a pinpoint instruction that is argumentative, duplicative, or not supported by the
evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558-559.) A trial court can also
refuse instructions that highlight specific evidence because such an instruction " 'invite[s]

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the jury to draw inferences favorable to one of the parties from specified items of
evidence,' it is considered 'argumentative' and therefore should not be given." (People v.
Earp (1999) 20 Cal.4th 826, 886.)
Proper instructions do not pinpoint specific evidence, but rather the theory of the
defendant's case. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) "[I]nstructions that
attempt to relate particular facts to a legal issue are generally objectionable as
argumentative [citation], and the effect of certain facts on identified theories 'is best left
to argument by counsel, cross-examination of the witnesses, and expert testimony where
appropriate.' " (People v. Wharton, supra, 53 Cal.3d at p. 570.) We review de novo the
trial court's refusal to give a requested pinpoint instruction. (People v. Johnson (2009)
180 Cal.App.4th 702, 707.) In doing so, we consider the instructions as a whole and
assume that the jurors are intelligent persons who are capable of understanding and
correlating all jury instructions. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
Here, the request to instruct on Carter's plea bargain highlighted specific evidence
(Carter's plea bargain) and invited the jury to draw the inference that Carter was not a
credible witness based on this specific evidence. The trial court properly rejected the
proposed pinpoint modification as argumentative. The requested instruction was also
duplicative of CALJIC No. 2.20 which instructed the jury it could consider "anything"
tending to prove or disprove the truthfulness of a witness. (People v. Clark (2011) 52
Cal.4th 856, 975 ["The court properly may refuse a proposed instruction . . . when the
point is covered in another instruction."].)

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Even assuming defendants were entitled to the instruction, any error in not giving
it was harmless. In evaluating the impact of the trial court's refusal to give a pinpoint
instruction, we consider " 'the entire cause, including the evidence,' " defense counsel's
focus in closing argument on the evidence supporting the defense theory, and whether
any given instructions would have precluded the jury "from giving that evidence its due
weight." (People v. Wharton, supra, 53 Cal.3d at pp. 571-572.) We review the
erroneous failure to give a pinpoint instruction for prejudice under the Watson harmless
error standard. (Id. at p. 571; People v. Watson (1956) 46 Cal.2d 818, 836.)
First, the absence of a specific reference to the plea bargain in CALJIC No. 2.20
did not preclude consideration of that factor as the instruction expressly permitted the
jury to consider anything in evaluating the truthfulness of a witness, including but not
limited to the factors listed. Additionally, the trial court thoroughly instructed the jury on
the requirement of corroboration for accomplice testimony and to view such testimony
with caution. (CALJIC Nos. 3.11, 3.12, 3.18.) Moreover, trial counsel for both
defendants cross-examined Carter about the plea bargain. Both counsel also argued to
the jury that the plea bargain Carter had with the prosecution was incentive for Carter to
lie and provided a reason to question Carter's credibility.
In summary, the jury instructions, taken as a whole, and considered in conjunction
with counsel's argument to the jury, adequately informed the jury of its responsibility to
consider all relevant factors in assessing witness believability. Thus, even assuming the
trial court erred, the error was harmless.

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IV. Relief Under Senate Bill 1437
On September 30, 2018, during the pendency of defendants' appeals, the Governor
signed Senate Bill No. 1437 into law, effective January 1, 2019. (People v. Martinez
(2019) 31 Cal.App.5th 719, 722 (Martinez).) "Senate Bill 1437 was enacted to 'amend
the felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.' [Citation.] Substantively,
Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and
section 189, which defines the degrees of murder, and as now amended, addresses felony
murder liability. Senate Bill 1437 also adds . . . section 1170.95, which allows those
'convicted of felony murder or murder under a natural and probable consequences theory
. . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's
murder conviction vacated and to be resentenced on any remaining counts . . . .' "
(Martinez, supra, at p. 723.)
Section 1170.95 establishes a procedure which allows defendants to petition the
court to consider the evidence in the record, as well as new and additional evidence, to
determine whether the petitioner is entitled to retroactive sentencing relief under Senate
Bill 1437. (§ 1170.95, subds. (a), (d)(3).) The trial court must hold a hearing "to
determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not previously been sentenced, provided that the new sentence, if any, is not greater

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than the initial sentence." (§ 1170.95, subd. (d)(1).) The parties "may rely on the record
of conviction or offer new or additional evidence." (§ 1170.95, subd. (d)(3).)
Defendants primarily contend that Senate Bill 1437 applies to their attempted
murder convictions and claim their convictions must be reversed. They assert that the
plain language of Senate Bill 1437 applies to attempted murder. If we disagree with this
result, they claim that the legislative history supports their assertion. As a failsafe
argument, they contend that applying Senate Bill 1437 to murder, but not attempted
murder, violates equal protection, due process, their right to a jury trial, and would
amount to cruel and unusual punishment. Defendants also argue that a petition to the trial
court under section 1170.95 is not their only remedy. Newsome claims that those cases
holding that a section 1170.95 petition is his sole remedy were wrongly decided and that
his attempted murder convictions should be reversed. Stoltz similarly contends that his
attempted murder convictions should be reversed because we have jurisdiction and all the
information necessary to render a decision. The People contend that defendants are not
entitled to any relief on appeal because they must first petition the trial court under
section 1170.95. Anticipating that we will agree with this argument based on existing
authority, Stoltz requests that we stay this appeal to allow him to file and litigate his
petition in the trial court and then return to this court to litigate this issue if required after
the trial court adjudicates his petition under section 1170.95.
Two recent appellate court opinions hold that Senate Bill 1437 "should not be
applied retroactively to nonfinal convictions on direct appeal." (Martinez, supra, 31
Cal.App.5th at p. 727; People v. Anthony (2019) 32 Cal.App.5th 1102, 1150-1153

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(Anthony) [adopting Martinez's analysis and holding].) These courts concluded that
Senate Bill 1437 provides retroactivity rules in section 1170.95, that this section "does
not distinguish between persons whose sentences are final and those whose sentences are
not" and thus acts as "a significant indication [that] Senate Bill 1437 should not be
applied retroactively to nonfinal convictions on direct appeal." (Martinez, supra, at p.
727; Anthony, supra, at p. 1152.) Martinez also noted that allowing the parties "to go
beyond the original record in the petition process, a step unavailable on direct appeal, is
strong evidence the Legislature intended for persons seeking the ameliorative benefits of
Senate Bill 1437 to proceed via the petitioning procedure. The provision permitting
submission of additional evidence also means Senate Bill 1437 does not categorically
provide a lesser punishment must apply in all cases, and it also means defendants
convicted under the old law are not necessarily entitled to new trials." (Martinez, supra,
at pp. 727-728; Anthony, at pp. 1152-1153.)
We conclude that defendants must first seek relief through the section 1170.95
petition process in the trial court, and not through this direct appeal. We reject
defendants' arguments that Martinez, supra, 31 Cal.App.5th 719 and Anthony, supra, 32
Cal.App.5th 1102 were wrongly decided and should not be followed.
Defendants note that the holding in Martinez, supra, 31 Cal.App.5th 719 is
premised on People v. Conley (2016) 63 Cal.4th 646 (Conley) and People v. DeHoyos
(2018) 4 Cal.5th 594 (DeHoyos). (DeHoyos, at p. 603 [Proposition 47 contained
specified petition procedure; thus, relief not available on direct appeal.]; Conley, at p. 659
[same regarding Proposition 36].) Defendants claim that DeHoyos and Conley are

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distinguishable because they addressed legislation changing how certain crimes are
classified whereas the instant legislation involves a change in the substantive law
regarding homicide. Defendants, however, fail to explain how this distinction makes a
difference where, as here, Senate Bill 1437 provides a petitioning procedure to determine
whether a conviction can be upheld based on the record of conviction, or after the
presentation of new or additional evidence. (§ 1170.95, subd. (d).)
As defendants note, Propositions 36 and 47, the legislation at issue in Conley,
supra, 63 Cal.4th 646 and DeHoyos, supra, 4 Cal.5th 594, conditioned a sentence
reduction on a finding that the defendant would not "pose an 'unreasonable risk of danger
to public safety' " if released. (Conley, at pp. 658-659; DeHoyos, at pp. 601-603; §§
1170.126, subd. (f), 1170.18, subd. (b).) Newsome argues, "The new statutes'
conditioning of relief upon determinations of lack of dangerousness represented the
lynchpin of the Supreme Court's decisions withholding the usual assumption of [In re]
Estrada [(1965) 63 Cal.2d 740] retroactivity for both Proposition 36 and Proposition 47."
(See Conley, supra, at pp. 658-659; DeHoyos, supra, at p. 603.) We do not disagree with
this assessment; rather, we fail to see how it advances defendants' argument that their
right to a sentence reduction can be decided on direct appeal.
Senate Bill 1437, like Propositions 36 and 47, conditions relief on factual
determinations that must be made by the trial court. Here, the trial court must review the
record to determine whether defendants made a prima facie showing that they are entitled
to relief. (§ 1170.95, subd. (c).) This is a dubious proposition given the jury's true
findings that both attempted murders were premeditated, meaning the jury found that the

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attempted murders were "preceded and accompanied by a clear, deliberate intent to kill,
which was the result of deliberation and premeditation." (CALJIC No. 8.67.) Assuming
the trial court finds that defendants made a prima facie showing, the court must hold a
hearing where the prosecution will have the opportunity to present new or additional
evidence showing defendants are ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
Newsome notes that subdivision (f) of section 1170.95 provides "This section does
not diminish or abrogate any rights or remedies otherwise available to the petitioner." He
further notes that Martinez, supra, 31 Cal.App.5th 719 rejected the defendant's
interpretation that subdivision (f) supported retroactive application on direct appeal,
concluding there was "no indication that reversal . . . on direct appeal . . . was among the
'rights' the Legislature sought to preserve . . . ." (Martinez, at p. 729.) He contends that
the Martinez court's interpretation of subdivision (f) renders the subdivision meaningless.
The Martinez court's analysis, however, is based on our high court's rejection of a similar
argument regarding a similar provision in Proposition 36. (Martinez, at p. 729; see
Conley, supra, 63 Cal.4th at p. 661 [subdivision stated "[n]othing in this section is
intended to diminish or abrogate any rights or remedies otherwise available to the
defendant"].) Consistent with our high court, we decline to read subdivision (f) as
expressing an intent to allow a defendant to bypass the section 1170.95 petition
procedure.
Defendants claim that following Martinez, supra, 31 Cal.App.5th 719 would waste
judicial resources and delay relief to defendants the legislation was intended to benefit.
We disagree.

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Section 1170.95 requires that a trial court determine whether the defendant has
made a prima facie showing for relief, and conduct a hearing where the parties may
"offer new or additional evidence." (§ 1170.95, subds. (c), (d).) Granting relief on direct
appeal denies the parties the right to present new or additional evidence. (In re Zeth S.
(2003) 31 Cal.4th 396, 405 [absent exceptional circumstances appellate courts do not
make factual findings; we review " 'the correctness of a judgment [or order] as of the time
of its rendition' "].) Moreover, where, as here, the Legislature has established a
procedure for obtaining relief, the potential impact of the legislation on judicial economy
is of no moment. We must follow the plain meaning of section 1170.95 " ' "whatever
may be thought of the wisdom, expediency, or policy of the act, even if it appears
probable that a different object was in the mind of the legislature." ' " (People v. Weidert
(1985) 39 Cal.3d 836, 843.) We decline Stoltz's request that we stay this appeal to allow
him to file and litigate his petition in the trial court and then return to this court to litigate
this issue if required after the petition under section 1170.95 is adjudicated. Stoltz has
not convinced us that such a procedure would result in judicial economy.
Finally, defendants argue that requiring them to proceed by petition to the superior
court violates their sixth amendment right to have a jury decide every fact necessary to
determine their guilt. We agree with the People that this argument is not ripe because
defendants have not filed petitions in the superior court requesting a jury trial on the
petitions. The ripeness requirement prevents courts from issuing purely advisory
opinions and is primarily based "on the recognition that judicial decisionmaking is best
conducted in the context of an actual set of facts so that the issues will be framed with

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sufficient definiteness to enable the court to make a decree finally disposing of the
controversy." (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d
158, 170.) Resolution of this issue would require us to issue "a purely advisory opinion
based on hypothetical facts or speculative future events." (Hayward Area Planning Assn.
v. Alameda County Transportation Authority (1999) 72 Cal.App.4th 95, 102.)
In summary, defendants' convictions are affirmed without prejudice to each filing
a section 1170.95 petition in the trial court, in which the trial court will decide in the first
instance whether Senate Bill 1437 applies to an attempted murder conviction and whether
each defendant filing such petition otherwise qualifies for relief. We express no opinion
on the merits of such a petition.
V. Alleged Sentencing Error
A. Background
The jury convicted defendants of two counts each of second degree robbery of
Buchanan and attempting to murder Buchanan and Perez and found true the attached
willfulness allegations to the attempted murder charges. The trial court sentenced Stoltz
to a consecutive term of 13 years for the robbery, consisting of the middle term of three
years, plus 10 years for the associated gang enhancement. Citing the probation officer's
report, the trial court declined to stay the robbery sentence under section 654, but stayed
the sentences for shooting at an occupied vehicle and street terrorism.
The trial court sentenced Newsome to a consecutive term of 20 years for the
robbery, consisting of the upper term of five years, doubled under the "Three Strikes"
law, plus 10 years for the associated gang enhancement. The trial court imposed sentence

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on the robbery charge without mentioning section 654. Citing section 654, the court
stayed Newsome's sentences for shooting at an occupied vehicle and street terrorism.
B. Robbery Sentence
Defendants contend the trial court erred in not staying the sentence for the robbery
and the gang enhancement attached to that crime under section 654 because they had a
singular objective that evening, i.e., to relieve Buchanan of his $2,000—either by fraud or
by force. They contend the attempted murder and robbery charges all arose from a single
physical act, the shooting spree relating to the foiled robbery; thus, section 654 applies to
bar separate punishment for the robbery. We disagree.
Section 654 prohibits punishment for two crimes arising from an indivisible
course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) If, however, the
defendant had multiple or simultaneous objectives, independent of and not merely
incidental to each other, the defendant may be punished for each violation committed in
pursuit of each objective even though the violations share common acts or were parts of
an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639
& fn. 11; People v. Felix (2001) 92 Cal.App.4th 905, 915 ["multiple crimes are not one
transaction where the defendant had a chance to reflect between offenses and each
offense created a new risk of harm"].) "Because of the many differing circumstances
wherein criminal conduct involving multiple violations may be deemed to arise out of an
'act or omission,' there can be no universal construction which directs the proper
application of section 654 in every instance." (People v. Beamon, at pp. 636-637.)
Accordingly, whether a course of criminal conduct is divisible presents a factual issue for

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the trial court, and we will uphold its ruling if supported by substantial evidence. (People
v. Coleman (1989) 48 Cal.3d 112, 162.) If the court makes no express section 654
finding, a finding that the crimes were divisible and thus subject to multiple punishments
is implicit in the judgment and must be upheld if supported by substantial evidence.
(People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
Here, defendants' act of taking Buchanan's personal property at gunpoint while
Buchanan sat in the Charger completed the robbery as defendants could have simply
escaped with the loot. Instead, when Buchanan then ran away and escaped in the Impala
with Perez, defendants gave chase in the Charger, firing or attempting to fire their
weapons. This completed attempted murder as to Buchanan. Defendants contend they
committed their actions after the robbery in the Charger to further the robbery (i.e., obtain
the $2,000 purportedly in the Impala). Nonetheless, defendants' actions, while directed to
one objective, involved a course of conduct divisible in time that could give rise to
multiple violations and punishment. (People v. Beamon, supra, 8 Cal.3d at p. 639 & fn.
11.) Accordingly, section 654 does not apply. (In re Jesse F. (1982) 137 Cal.App.3d
164, 171 [assault separately punishable when committed "after the fruits of the robbery
have been obtained"].)
Additionally, the trial court could have concluded defendants had a simultaneous
objective that was independent of and not merely incidental to the robbery. Namely,
Carter testified that defendants chased after the Impala because Buchanan tried to rob
them, this was disrespectful and the men decided to handle it with guns. Carter asked
Stoltz for permission to fire his gun because Stoltz was higher in the gang hierarchy.

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Carter stated that other gang members would not be expected to "back [him] up" in a one-
on-one situation, but back-up would be expected in a group activity. Carter claimed,
however, that because Stoltz and Newsome were older, they faced no consequences if
they decided to not get involved. Thus, substantial evidence supported the court's finding
that section 654 did not preclude execution of the consecutive sentences for defendants'
attempted murder and robbery convictions.
C. Consecutive Sentences
Defendants contend we should remand this matter to the trial court to permit it to
state its reasons for imposing consecutive sentences as to the attempted murder and
robbery charges. Stoltz asserts the trial court should have stated reasons as to why it was
imposing consecutive as opposed to concurrent sentences on the respective counts
because he had no prior criminal record, was out of custody on bond during trial and had
committed no new violations. The People assert defendants forfeited this contention by
failing to object below. Assuming defendants did not forfeit this contention, the People
contend the record supported the court's discretionary sentencing choice.
A trial court has discretion to determine whether several sentences are to run
concurrently or consecutively. (§ 669; People v. Shaw (2004) 122 Cal.App.4th 453,
458.) A sentencing court is required to provide a statement of reasons when imposing
consecutive sentences. (Cal. Rules of Court, rule 4.406(a), (b)(5).) A defendant's claim
that the trial court stated inadequate or erroneous reasons for imposing consecutive
sentences is forfeited on appeal unless the defendant timely and specifically objected

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below on the ground sought to be raised on appeal. (People v. Boyce (2014) 59 Cal.4th
672, 730-731.)
Here, although defendants raised no objection below, they contend forfeiture does
not apply because they were not given a meaningful opportunity to object as the trial
court did not provide an intended ruling, but simply pronounced the sentences. We
disagree.
A trial court is not obligated to provide advance notice of its intended sentence.
(People v. Gonzalez (2003) 31 Cal.4th 745, 754-755.) "[T]he parties need only be
advised of the trial court's intended sentence 'during the course of the sentencing hearing
itself . . . .' " (Id. at p. 752.) "In the rare instance where the actual sentence is
unexpected, unusual, or particularly complex, the parties can ask the trial court for a brief
continuance to research whether an objection is warranted, or for permission to submit
written objections within a specified number of days after the sentencing hearing." (Id. at
p. 754.)
Here, before the trial court pronounced its sentences it noted that it had read the
probation reports and also the letters submitted regarding Newsome's character. The
court heard argument from counsel and then pronounced its respective sentences. After
apprising defendants of their sentences, the trial judge asked each counsel whether he had
"anything further." Both counsel responded that they had nothing further. The invitation
for further input from the parties afforded defendants a meaningful opportunity to assert
the objection they now attempt to raise on appeal. (People v. Boyce, supra, 59 Cal.4th at
p. 731.) Their failure to act resulted in a forfeiture of the claim. (Ibid.)

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Even if defendants had not forfeited this claim, we would deny it on the merits.
California Rules of Court, rule 4.425 enumerates "[c]riteria affecting the decision to
impose consecutive rather than concurrent sentences." California Rules of Court, rules
4.421 and 4.423 identify numerous aggravating and mitigating circumstances. A single
valid factor is sufficient to justify a sentencing choice. (People v. Dancer (1996) 45
Cal.App.4th 1677, 1695-1696.)
Here, the probation reports, which the trial court considered, listed three
circumstances in aggravation and two in mitigation as to Stoltz and seven aggravating
and no mitigating circumstances as to Newsome. The trial court read letters about
Stoltz's good character and was aware of Stoltz's age and lack of a criminal record. The
court also heard Stoltz's articulate statement of remorse for his crimes. The trial court
stated that it considered Stoltz's age and lack of record in deciding the appropriate
sentence, but concluded the gravity of the crimes outweighed these factors. As to
Newsome, the trial court noted the existence of a prior strike, that Newsome was on
probation at the time of the incident and the gravity of the crimes. The record shows the
court was aware it had sentencing discretion and that it exercised its discretion. On
whole, the trial court adequately justified the imposition of consecutive terms and did not
abuse its discretion. No remand for resentencing is required.
VI. Mental Health Evaluations
A. Background
When Carter was a co-defendant in this proceeding his counsel expressed a doubt
about Carter's competency. The trial court suspended the criminal proceedings and

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ordered a competency evaluation under section 1368. The psychiatrist prepared a written
report and the prosecutor prepared a redacted version of the report to protect Carter's
personal information and attorney-client privilege. Carter was found to have been
malingering and thus competent. The court ordered that the reports be sealed. The trial
court had the prosecutor review the reports and provide to defense counsel all possible
exculpatory evidence within the meaning of Brady v. Maryland (1963) 373 U.S. 83
(Brady).
Stoltz's counsel asked the trial court to unseal Carter's psychiatric reports or
review them, questioning whether it had followed the proper procedures in ordering the
reports sealed. Counsel also asked the trial court to review the redacted and unredacted
reports and decide whether the prosecutor was correct in finding no Brady material in the
reports. The trial court reviewed the reports and concluded that they contained no
exculpatory evidence. The court also denied a request to unseal the reports.
B. Analysis
Defendants do not challenge the sealing of the reports; rather, they request that we
review the sealed reports and reverse the judgment if the trial court failed to turn over any
documents material to their defense, including but not limited to exculpatory evidence
within the meaning of Brady or other material evidence subject to mandatory disclosure
under section 1054.1. The People argue psychiatric material is generally undiscoverable
prior to trial and we should not independently review the reports because defendants cited
no authority for such a review.

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Under Brady, the prosecution violates a defendant's federal due process rights
when it suppresses evidence material to the defendant's guilt or punishment, regardless of
the good faith belief of the prosecution. (Brady, supra, 373 U.S. at p. 87.) Prosecutors
have a duty to disclose "material exculpatory evidence whether the defendant makes a
specific request [citation], a general request, or none at all." (In re Brown (1998) 17
Cal.4th 873, 879.) An appellate court's role is to review the confidential records that
were not disclosed by the trial court "to determine whether they were material and should
have been disclosed." (People v. Martinez (2009) 47 Cal.4th 399, 453.)
On our own motion, we have augmented the record to include copies of the
unredacted and redacted versions of the report. (Cal. Rules of Court, rule 8.340(c).) The
trial court properly sealed these reports and we add them to the record on appeal under
seal. We have reviewed the unredacted and redacted versions of the report in camera and
conclude the undisclosed information was not material to defendants' defense and the
trial court did not err in denying disclosure.
DISPOSITION
The street terrorism convictions (count 5) are reversed as to both defendants. The true
findings on the gang enhancements connected to counts 1, 2, 3 and 4 are reversed and the
gang enhancements stricken. In all other respects, the judgments are affirmed. The matter is
remanded to give defendants the opportunity to file section 1170.95 petitions and for
resentencing consistent with this opinion. Thereafter, the trial court is directed to prepare an
amended abstract of judgment and to send a certified copy of the same to the Department of
Corrections and Rehabilitation.

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O'ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.

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