59 Cal.App.5th 803
Cal. Ct. App.2021Background
- 1995: Edward Emery was shot and killed in a supermarket parking lot; investigators recovered saliva from a vehicle window. DNA later matched Elliot Kimo Laanui.
- Investigators in 2012–2013 used recorded jailhouse informants and an undercover deputy; recordings and meetings showed defendant discussing and agreeing to hire someone to kill Jonathan Ross ("Never").
- In 2017 defendant shot Andres Gonzalez, fled, struck a detective’s car, resisted arrest, and was found with a silver revolver; defendant was convicted at trial of six counts including murder (1995), solicitation of murder (Ross), assault with a firearm, and related offenses.
- Information alleged a prior serious felony (a 2006 strike) and cited the Three Strikes statutes; at sentencing the court doubled several terms under Three Strikes including count 6 (solicitation), and imposed various enhancements and fees.
- On appeal the court (published in part) affirmed the convictions but (1) held the information adequately pleaded the prior strike so Three Strikes doubling on count 6 was proper, and (2) ordered several sentencing corrections (correct firearm enhancement statute on count 1, award presentence conduct credits, amend minutes to show struck §667.5 enhancements).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of redacted booking photo (skin tone ID) | Photo was probative to show skin tone similarity and permissible | Redaction insufficient; hair/forehead could allow jury to infer identity and suggestive identification prejudiced defendant | No abuse of discretion; photograph admissible and any error not prejudicial given context and other evidence |
| Prosecutorial closing remarks (appeal to sympathy) | Remarks were proper advocacy to urge justice for victim/families | Remarks appealed improperly to sympathy and were prosecutorial misconduct requiring reversal | Forfeited by lack of timely objection; comments improper on the merits but not prejudicial given strong evidence |
| Motion for new trial & ineffective assistance based on forfeited objections | Errors warranted new trial; counsel ineffective for failing to object | Forfeiture and, even if deficient, no prejudice shown | Motion for new trial denied; ineffective assistance claim not resolved on direct appeal because record does not show prejudice (most claims fail for lack of prejudice) |
| Three Strikes pleading and doubling sentence on count 6 | Prosecutor cited Three Strikes generally and pleaded a strike; that status applies across eligible counts so doubling solicitation proper | Defendant argued pleading listed strike only as to counts 1–3 so doubling count 6 was unauthorized / deprived of notice | Held: striking/pleading of prior strike and citation to §§667/1170.12 gave adequate notice; Three Strikes is a status-based scheme that applies to all eligible counts, so doubling count 6 was proper |
| Sentencing technical errors (firearm enhancement statute, conduct credits, minutes) | Court intended to impose §12022.5 enhancement on assault (3/4/10 years); murder pre-1998 so defendant entitled to presentence conduct credit; minute order should reflect striking §667.5 priors | Defendant sought correction and additional credits; parties agreed some items were erroneous | Court directed amendment: strike erroneous §12022.53 enhancement and impose §12022.5 enhancement on count 1; award 118 days conduct credit (15% of 793); amend minutes to show §667.5 enhancements struck; fines/fees challenge forfeited and rejected on the merits |
Key Cases Cited
- People v. Anderson, 9 Cal.5th 946 (Cal. 2020) (pleading requirement: enhancements tied to a count require notice as to each count to which enhancement will be applied)
- People v. Garcia, 20 Cal.4th 490 (Cal. 1999) (Three Strikes scheme is indivisible and status-based; prior conviction may be alleged once as to all current counts)
- People v. Morales, 106 Cal.App.4th 445 (Cal. Ct. App. 2003) (prior strike pleaded as to one count applies to other eligible counts; strikes are offender-status enhancements)
- People v. Mancebo, 27 Cal.4th 735 (Cal. 2002) (One Strike law: circumstances supporting enhanced sentencing must be pleaded; different pleading concerns from Three Strikes)
- People v. Williams, 34 Cal.4th 397 (Cal. 2004) (Three Strikes sentencing and application of prior-conviction enhancements to multiple indeterminate terms)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (due process concerns require ability-to-pay hearing before imposing certain fines and fees in extreme indigency contexts)
- People v. Chism, 58 Cal.4th 1266 (Cal. 2014) (statutory limits on accrual of presentence conduct credits for murder convictions and effect of statute operative date)