APPEAL from a judgment of the Superior Court of Sacramento County, Renard F. Shepard, Judge. Reversed in part and affirmed in part. (Super. Ct. No. 07F07270).
The opinion of the court was delivered by: Robie, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendants Daiquiri E. Hall and Kelvin Anthony Hollins each were convicted of multiple criminal charges arising from a robbery. On appeal, both defendants assert their federal constitutional rights were violated by an impermissibly suggestive field showup and imposition of an upper term sentence. They also both contend they were wrongly convicted of two counts of receiving stolen property instead of one.
Separately, Hollins contends his constitutional rights were violated by the admission of other crimes evidence and by the use of a juvenile adjudication to double his sentence. For his part, Hall contends he was wrongly convicted of both carrying a concealed firearm and carrying a loaded firearm in a public place because the latter offense is necessarily included in the former.
We agree defendants each could be convicted of only one count of receiving stolen property, but otherwise we reject their arguments. Accordingly, we will reverse their convictions on one of the counts of receiving stolen property (on which their sentences were stayed pursuant to Penal Code*fn2 section 654) and will otherwise affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, Denise Galvan was selling clothes for a living. On the evening of July 29, Galvan received a telephone call from someone who called himself Kevin and said he needed some clothes. She agreed to meet him at an address in Sacramento, and she persuaded Michelle Ezell (the mother of her brother's child) to go with her. They went in a car Galvan had rented.
When they arrived at the address, two young men wearing dark hooded sweatshirts (later identified as defendants) came down the driveway. Galvan got out of the car, leaving it running, and Ezell remained in the front passenger seat. Galvan opened the door to the backseat, where the clothes were, and talked to defendants about buying the clothes. When she noted they were not even trying to look at the clothes and asked them if they lived there or had any money, Hall put a gun to her head and said, "Break your . . . self. Give me everything." Galvan gave him about $17 and started begging him not to shoot her. Ezell jumped from the car and ran, spilling three cell phones in her lap on the ground. Hall turned to look, and Galvan took the opportunity to run too. Defendants got in the car and drove away.
After a few minutes, Galvan found someone who let her use a phone to call 911. When the police arrived, Galvan and Ezell returned to the location of the robbery, where Ezell's cell phones had fallen to the ground, but the phones were no longer there.
Meanwhile, another police officer on patrol located the car and followed it. As he did so, it pulled over and the two occupants fled, disregarding his command to get down.
Other police officers and a police dog arrived and began searching the area for the suspects. One of the officers found a handgun about 30 feet from the car and another handgun about 40 feet further away. They continued searching and in a nearby backyard found four cell phones and two black sweatshirts. An air unit told the officers there was someone on the roof of a shed in the adjacent yard, and the officers ordered him to come to them. He did so, and it turned out to be Hall. Shortly thereafter, Hollins was found in another adjacent yard.
After responding to the scene of the robbery, the police took Galvan and Ezell to view a suspect, whom both victims said was not one of the perpetrators. The police then took them to another location, where they were first shown Hollins, then Hall, both of whom they recognized as the perpetrators. After identifying defendants, Ezell also identified her cell phones.
Defendants were jointly charged with two counts of carjacking (one for each victim), two counts of robbery (one for each victim), and two counts of receiving stolen property (one for the cell phones and one for the car). Hall was also charged with carrying a concealed firearm and carrying a loaded firearm in a public place. The carjacking and robbery charges included various enhancements, and there was an allegation that Hollins had a prior serious felony conviction for robbery.
The jury found Hall not guilty of the carjacking charges or of robbing Ezell, but guilty of robbing Galvan and of the receiving stolen property and firearm charges. The jury also found the enhancement allegations on the robbery charge true.
The jury found Hollins not guilty of the carjacking and robbery charges but guilty of the receiving stolen property charges. In a bifurcated proceeding, the court found that Hollins had a prior juvenile adjudication for robbery that could be used as a sentence enhancement.
The court sentenced Hall to the upper term of five years on the robbery charge based on the determination that the manner in which the crime was carried out indicated planning, Hall had engaged in violent conduct indicating a serious danger to society, and his criminal conduct was of increasing seriousness. The court added a consecutive 10 years for a firearm enhancement, then imposed but stayed pursuant to section 654 the middle term of two years on each of the remaining charges of receiving stolen property, carrying a concealed weapon, and carrying a loaded firearm in a public place.
The court sentenced Hollins to the upper term of three years on one of the receiving stolen property charges (count six) because he was on probation, his criminal behavior was increasing in seriousness, and he engaged in violent conduct which indicates a serious danger to society. The court doubled the term to six years based on his prior conviction, then imposed a two-year term for the other receiving stolen property charge (count five), doubled that term, but stayed it pursuant to section 654.
I. Admission Of Other Crimes ...