Filed 6/14/13 P. v. Romero CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY ANGEL ROMERO,

Defendant and Appellant.

 H037094

 (Santa Clara County

 Super. Ct. No. CC789592)

The Santa Clara County District Attorney filed an information charging defendant 

Jeffrey Angel Romero with two counts of second degree burglary (Pen. Code, §§ 211, 

212.5, subd. (c)1- counts one and three) and one count of felony imprisonment (§§ 236, 

237 - count two). The information also alleged: (1) defendant personally used a firearm 

within the meaning of section 12022.53, subdivision (b) when he committed the offenses 

charged in counts one and three, and (2) he personally used a firearm within the meaning 

of sections 12022.5, subdivision (a) and 1203.06 when he committed the offense charged 

in count two. The jury found defendant guilty as to counts one and two, and not guilty as 

to count three. The jury also found that the allegations of the firearm use enhancements 

were true as to counts one and two. The trial court sentenced defendant to 18 years in 

prison. On appeal, defendant contends: (1) the trial court erred when it admitted 

 

1

 All further statutory references are to the Penal Code unless otherwise stated.
2

evidence of uncharged offenses, (2) the trial court abused its discretion in denying trial 

counsel‟s request to read two articles on the unreliability of eyewitness identification 

evidence, and (3) the trial court erred when it awarded no custody credits to defendant. 

We reverse the judgment and remand the matter for resentencing.

I. Statement of Facts

A. The Prosecution’s Case

1. The San Jose Robbery - Counts One and Two

Parul Parikh worked as a cashier at a Valero gas station in San Jose. At 

approximately 2:40 p.m. on June 8, 2007, she was talking to Michael Lima, a salesman, 

when a man entered. The man, who was wearing a black jacket with a hood, asked about 

some candy and Parikh directed him toward it. However, the man then came behind the 

counter, asked for money, and gave Lima a black bag to give to Parikh for the money. 

Parikh did not remember if the man was holding a gun. She took the money from the 

cash register and put it in the bag. Before he left, the man told them to sit down and not 

do anything. Both Parikh and Lima sat down on the ground. A few seconds later, the 

manager of the car wash entered.

Parikh subsequently attended a lineup in Sonoma County, but she was unable to 

identify anyone as the robber. She testified that she did not get a good look at the 

robber‟s face and was unable to remember his race, hair color, height or whether he had 

facial hair. 

Officer Mark Efigenio was dispatched to the Valero gas station on the day of the 

robbery. He spoke with Parikh, who told him that the robber displayed a gun which 

made her very scared. The robber handed Lima a black plastic bag and ordered Parikh to 

open the cash register. Lima gave it to Parikh. She placed between five and six hundred 

dollars in the bag. The robber then ordered her to lie on the ground. She described the 

robber as a Hispanic male, about 35 years old, and possibly with a beard. 
3

Michael Lima testified that he was working as a wholesaler who restocked display 

cases with novelty items in June 2007. On June 8, 2007, he was at the Valero gas station 

when a man entered and pointed a gun at his head. The robber said, “As long as no one 

causes trouble, no one will get hurt.” The robber tried handing a black plastic bag to 

Lima, but Lima put his hands up, stood back, and said, “Hey, I don‟t even work here.” 

After he got the money, the robber said, “Okay. Everyone on the floor. Get on your 

bellies. Count to 30.” As soon as the robber left, Lima called 911. 

Lima described the robber as around 5 feet 7 inches to 5 feet 8 inches tall, mid- to 

late 20‟s, Hispanic, and weighing 175 to 180 pounds. The robber was wearing a hood 

and his arms were covered. His gun was a black and silver semiautomatic pistol, and 

Lima heard the slide of the gun being pulled back and locked into place. Lima viewed an 

in-person lineup in Sonoma County several months later, but did not recognize anyone. 

Raul Hernandez was working as the manager of the station‟s detail shop when the 

robbery occurred. He walked into the store and saw Parikh and Lima on the ground. 

After Parikh told him that there had been a robbery, Hernandez saw a guy with a black 

hoodie running out the back door and leave in a white truck. Hernandez ran after the 

truck to try and get a license number, but there was no plate on the truck. When the truck 

was stopped at a red light, Hernandez noticed that there was damage on the back bumper 

of the truck and the windows were tinted. Hernandez identified a photograph of a truck 

(exhibit 16) as similar to the one that he saw. While Hernandez was looking at the truck, 

the robber rolled down his window, pointed a gun at him, and asked if he had a problem. 

According to Hernandez, the robber was wearing a black tank top, and he had black hair 

“[l]ike a fade” or a “soldier-style flat top.” The robber also had a goatee and a mustache. 

Hernandez did not remember that he told the police that the man did not point the 

gun at him. He also did not remember whether he told the police that the robber‟s arms 

were hairy. He thought that the robber used his right hand when he pointed the gun at 
4

him. When the police showed him photographs of individuals a few weeks later, he did 

not identify anyone as the robber. 

Sergeant Randy Schriefer testified that he participated in the investigation of the 

Valero gas station robbery on June 8, 2007. He interviewed Hernandez on July 5, 2007. 

Hernandez told him that there was damage to the rear license plate frame of the truck, the 

front driver‟s window was tinted, and the person in the truck rolled down the window and 

brandished a handgun. Hernandez described the man as Hispanic, approximately 26 

years old, with a goatee, and black hair that was shaved on the sides, and weighing 170 

pounds. Hernandez also stated that the man had hairy arms. Schriefer was present when 

Detective John McElvy showed Hernandez a photo lineup on December 3, 2007. 

Defendant was a suspect at that time. Hernandez chose defendant‟s photograph. 

According to Schriefer, Hernandez was “confident” of his identification.

Alicia Stephens, defendant‟s wife, testified that she and defendant were living in 

Petaluma in May through July 2007. According to Stephens, defendant does not have 

hairy arms, but he has colorful tattoos from his wrist to his elbow. 

2. The Los Gatos Robbery - Acquittal on Count Three

The evidence as to count three was based on the preliminary hearing testimony of 

Kourosh Adeli that was read into the record because Adeli had left the country. Adeli 

testified that he was working at the Union 76 gas station in Los Gatos on June 8, 2007. 

At approximately 1:57 p.m., a man entered the store with a plastic bag, took the money, 

and told him not to say anything or he would kill him. The robber had a gun. Adeli put 

the money in the bag. The robber pushed Adeli‟s head to the ground and told him to wait 

for five minutes. Adeli described the robber as Mexican-American, wearing a black 

jacket, and with a two-inch scar on his face. 

Officer Joseph Romeo was dispatched to the Union 76 station on Los Gatos 

Boulevard at about 2:00 p.m. on the day of the robbery. Adeli told him the robber was 
5

wearing a black sweatshirt with the hood pulled up, black pants or shorts, and black 

shoes. He also said that the robber had a Spanish accent. 

Officer Leyton Howard testified that he was present when Adeli was shown a 

photo lineup on December 5, 2007. Adeli identified defendant‟s photo as the robber. 

3. Evidence of Other Crimes

a. San Leandro Robbery

Santos Rivas was working at the Marina Shell gas station in San Leandro on 

May 8, 2007, when a man, who was wearing a black hoodie and black jeans, entered. He 

was either white or Mexican. Rivas identified defendant as that man at trial. Defendant 

walked to the counter, displayed a gun, threw a plastic bag at her, and said, “Give me the 

money.” She asked if he was “playing,” and he said, “No.” When Rivas opened the 

register and began taking out the quarters, defendant said, “Fuck the change.” She 

grabbed the bills and put them in the plastic bag. Defendant‟s gun had a slide on top that 

pulled back. After he had the money, defendant told her to lie on the ground and count to 

100. Rivas was unable to identify defendant in an in-person lineup in Sonoma County. 

However, she identified defendant in a photo lineup. 

Officer Louie Guillen was dispatched to the Shell gas station at about 7:45 p.m. on 

May 8, 2007. Rivas told him that the robber held a black semiautomatic handgun in his 

left hand and told her to get on the ground and count to 30 before he left. Rivas described 

the robber as 24 or 25 years old, 5 feet 9 inches tall, about 170 pounds, and with a goatee 

and mustache. 

b. Sebastopol Robbery

Robert Ramos testified that he was working at the Valero gas station in Sebastopol 

on November 11, 2007. After Ramos placed some money in the safe, there remained 

$300 to $400 left in the register. At that point, a man entered the store, placed a plastic 

bag on the counter, pulled out a two-toned gun, and asked Ramos to open the register. At 

trial, Ramos identified defendant as the robber. After Ramos put the money in the bag, 
6

defendant ordered him to get on the floor and count to 30 or he would “blow [his] head 

off.” 

After the robber left, a customer entered the store and told Ramos that the robber 

had driven away in a white pickup truck and was travelling south. Ramos called the 

police and reported the robbery and the information from the customer. According to 

Ramos, the robber was wearing jeans and an olive zip-up hooded sweatshirt and had a 

“fairly thick beard.” The police detained a suspect and transported Ramos to the location 

where he was being held. Ramos identified this individual, who was defendant, as the 

robber. When Ramos identified defendant, he was surprised that he did not have a beard. 

Sergeant Michael Nielsen testified that he received a dispatch call of a robbery in 

progress at the Valero gas station at approximately 3:05 p.m. on November 11, 2007. He 

eventually stopped a white pickup truck driven by defendant. Officers searched 

defendant‟s truck and found an olive gray sweatshirt, $308 in cash in a plastic bag, a 

handgun with eight rounds in it, and a box of ammunition. The gun was a semiautomatic. 

The cash in the bag was organized by denomination. Defendant had “a beard, maybe a 

week‟s growth.” 

4. Other Evidence

Tai Nguyen, a former San Leandro police detective, conducted an investigation of 

the San Leandro robbery. He opined that the San Leandro robbery was related to the San 

Jose, Los Gatos, and Sebastopol robberies based on the description of the suspect, the 

weapon used, and the manner in which the robberies were committed. After defendant 

was arrested, Nguyen met with him. At that time, defendant signed a document with his 

left hand which was consistent with his information that the robber had used his left hand 

to hold the gun in each of the robberies. 

The parties stipulated that on May 8, 2007, Officer Timothy Degrano recovered a 

latent fingerprint from the interior frame of the main door of the Shell gas station in San 
7

Leandro that the suspect had appeared to touch. It was determined that the latent 

fingerprint did not belong to defendant. 

The parties also stipulated that defendant was employed by GMC Tech from 

September 2006 to June 18, 2007. Defendant‟s employment records showed that 

defendant left work at 3:45 p.m. on May 8, 2007, and that he did not work on 

May 25, 2007, and June 4, 2007. Defendant worked from 7:26 a.m. until 3:47 p.m. on 

June 5, 2007, from 7:24 a.m. until 2:53 p.m. on June 6, 2007, from 7:26 a.m. until 2:37 

p.m. on June 7, 2007, and from 7:20 a.m. until 10:50 a.m. on June 8, 2007. 

B. Defense Case

Deputy Eduardo Fernandez of the Sonoma County Sheriff‟s Department testified 

that he conducted an in-person lineup on July 9, 2008. According to Fernandez, 

defendant was 5 feet 9 inches tall and weighed 210 pounds when he was booked. 

Jeffrey Gilbert Romero, defendant‟s father, testified that he celebrated Father‟s 

Day, which was on June 17, with defendant on June 8, 2007. Defendant arrived at his 

father‟s house in Vallejo at 2:15 p.m. or 2:45 p.m. They left at around 3:15 p.m., ate at a 

Mexican restaurant, took a walk at the marina, and returned to Vallejo around 6:00 p.m. 

Esther Rabuco, defendant‟s mother, testified that she visited defendant the day 

after he was arrested and he looked like he did in a photo that was admitted in evidence. 

Pursuant to a defense request, the trial court allowed defendant to roll up his 

sleeves and display his arms to the jury. 

II. Discussion

A. Other Crimes Evidence

Defendant contends that the trial court abused its discretion under Evidence Code 

sections 1101 and 352 when it admitted evidence of the uncharged robberies that were 

committed in San Leandro and Sebastopol.
8

1. Background

The prosecutor brought a motion to admit evidence of 14 uncharged robberies to 

prove the identity of the perpetrator of the charged crimes and to show the charged 

crimes were part of a common scheme or plan. Defendant brought a motion to exclude 

evidence of the uncharged robberies. 

At the hearing on the motions, the trial court noted that the prosecutor had “agreed 

to whittle down the list to eight” uncharged robberies. Following argument, the trial 

court ruled that the prosecutor could elicit evidence of the robbery in Sebastopol on 

November 7, 2007, and the robbery in San Leandro on May 8, 2007. It stated: “In those 

cases, five of the characteristics appear in all of them. There‟s a gas station; black/silver 

gun; the robber is alone, and he‟s described as Hispanic except for the Sebastopol case; a 

plastic bag was provided in each one of these situations; each one of the victims was 

ordered to get on the ground and count to 30. [¶] Alone or maybe one or two of these 

factors being involved, the Court would not be inclined to allow it in, but I think there are 

enough similarities to warrant the use of those two. And I think, again, balancing under 

352, as I -- as the Court must, I don‟t think it‟s too cumulative. I don‟t believe it will be 

too time consuming, and I think in light of the similarities that the Court has just 

recounted that the probative value outweighs the prejudicial effect. So those are the 

two.” 

The prosecutor presented evidence that defendant committed robberies at gas 

stations in San Leandro and Sebastopol. The trial court instructed the jury that if the 

prosecution had proved by a preponderance of the evidence that defendant committed the 

uncharged offenses, the jury could, but was not required to, consider this evidence for the 

limited purpose of determining whether defendant committed the charged offenses. 

After the jury found defendant guilty of counts one and two, he brought a motion 

for a new trial on several grounds, including the admission of the uncharged offenses. 

The trial court denied the motion. 
9

2. Legal Analysis

“ „Subdivision (a) of [Evidence Code] section 1101 prohibits admission of 

evidence of a person‟s character, including evidence of character in the form of specific 

instances of uncharged misconduct, to prove the conduct of that person on a specified 

occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this 

rule does not prohibit admission of evidence of uncharged misconduct when such 

evidence is relevant to establish some fact other than the person‟s character or 

disposition.‟ [Citation.] „Evidence that a defendant committed crimes other than those 

for which he is on trial is admissible when it is logically, naturally, and by reasonable 

inference relevant to prove some fact at issue, such as motive, intent, preparation or 

identity. [Citations.]‟ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) 

“ „ “[O]ther-crimes evidence is admissible to prove the defendant‟s identity as the 

perpetrator of another alleged offense on the basis of similarity „when the marks common 

to the charged and uncharged offenses, considered singly or in combination, logically 

operate to set the charged and uncharged offenses apart from other crimes of the same 

general variety and, in so doing, tend to suggest that the perpetrator of the uncharged 

offenses was the perpetrator of the charged offenses.‟ [Citation.]” [Citation.] The 

inference of identity, moreover, need not depend on one or more unique or nearly unique 

common features; features of substantial but lesser distinctiveness may yield a distinctive 

combination when considered together.‟ [Citation.]” (People v. Vines (2011) 51 Cal.4th 

830, 856-857 (Vines), superseded by statute on another pont as recognized in People v. 

Robertson (2012) 208 Cal.App.4th 965, 981; see also People v. Kipp (1998) 18 Cal.4th 

349, 369-370.)

“ „When reviewing the admission of evidence of other offenses, a court must 

consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value 

of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule 

or policy requiring exclusion even if the evidence is relevant. [Citation.]‟ ” (Fuiava, 
10

supra, 53 Cal.4th at p. 667.) Moreover, the probative value of the uncharged offense 

must be weighed against the danger “of undue prejudice, of confusing the issues, or of 

misleading the jury.” (Evid. Code, § 352.) 

“ „ “We review for abuse of discretion a trial court‟s rulings on relevance and 

admission or exclusion of evidence under Evidence Code sections 1101 and 352.” 

[Citation.]‟ [Citation.]” (Fuiava, supra, 53 Cal.4th at pp. 667-668.)

Defendant focuses on each factor that the trial court referred to in its ruling and 

argues that it was not unusual or distinctive. Relying on his own search of published 

appellate opinions, newspaper articles, and Federal Bureau of Investigation (FBI) 

statistics, he asserts that a gas station is a common venue for a robbery. He then notes 

that a black and/or silver gun is not distinctive and that U.S. Census Bureau figures in 

2010 establish that 37.6 percent of Californians are Hispanic. He also relies on his case 

law search to argue that “plastic bags are standard robbers‟ equipment” and there is 

“nothing unusual about a robber‟s telling victims to get on the ground . . . .”2

Defendant‟s argument, however, fails to acknowledge that the trial court need not 

consider each factor in isolation. Factors of “ „lesser distinctiveness may yield a 

distinctive combination when considered together.‟ ” (Vines, supra, 51 Cal.4th at p. 857.) 

Here, the principle issue at trial was identity. The evidence of the charged and uncharged 

robberies involved the robbery of a gas station in which a male, acting alone, displayed a 

black/chrome semiautomatic and told the victim to put the money in a plastic bag. After 

ordering the victims to get on the floor and to count to 30, the robber left.3 Moreover, the 

 

2

 This court has previously denied defendant‟s request to take judicial notice of the 

FBI statistics and the percentage of the Hispanic population in California.

3

 Defendant points out that Adeli testified at the preliminary hearing that the robber 

told him to wait for five minutes on the ground. However, the prosecutor‟s motion to 

admit evidence of the uncharged offenses states that the robber told Adeli to count to 30. 

At the hearing on the motion, the trial court stated that it had not looked at any police 

reports or the preliminary hearing transcript and asked defense counsel if he wanted it to 

“take a look” at the prosecutor‟s summary of the charged offenses as “background.” 
11

robber was Hispanic in three of the four robberies. The trial court could reasonably find 

that these common factors, when considered together, were very probative on the issue of 

identity.

Defendant also contends that the evidence of the uncharged offenses should have 

been excluded as more prejudicial than probative under Evidence Code section 352. He 

argues that the evidence of the charged robberies was weak and the “stronger evidence 

that [defendant] had committed two uncharged robberies was calculated to, and did, shore 

up the weak evidence and result in convictions on the San Jose incident.” 

The “undue prejudice” referred to in Evidence Code section 352 “is not 

synonymous with „damaging,‟ but refers instead to evidence that „ “uniquely tends to 

evoke an emotional bias against defendant” ‟ without regard to its relevance on material 

issues.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) This “ „ “evidence should be 

excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the 

jury, motivating them to use the information, not to logically evaluate the point upon 

which it is relevant, but to reward or punish one side because of the jurors‟ emotional 

reaction. In such a circumstance, the evidence is unduly prejudicial because of the 

substantial likelihood the jury will use it for an illegitimate purpose.” [Citations.]‟ ” 

(People v. Scott (2011) 52 Cal.4th 452, 491.)

Here, evidence of the uncharged offenses was not more inflammatory than that of 

the charged offenses. Thus, the trial court did not abuse its discretion in concluding the 

probative value of the evidence outweighed its prejudicial effect. Moreover, if the jury‟s 

emotional reaction to the evidence of the uncharged offenses had been improper, it would 

have convicted defendant of both robberies. That it acquitted defendant of the Los Gatos 

 

Defense counsel had no objection and did not challenge the prosecutor‟s characterization 

of the facts of the Los Gatos robbery at any time during the hearing. Based on this 

record, the trial court properly concluded that the perpetrator of the Los Gatos robbery 

told his victim to get on the ground and count to 30.
12

robbery showed that it considered the uncharged offenses for the limited purpose set forth 

in the trial court‟s instructions.

Defendant next argues that the evidence of the uncharged crimes violated his 

federal constitutional right to due process. The erroneous admission of other crimes 

evidence “results in a due process violation only if it makes the trial fundamentally 

unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.) Since we conclude that the trial 

court properly exercised its discretion in concluding that the probative value of the 

relevant evidence outweighed its prejudicial effect, we find no due process violation.

B. Newspaper Articles on Mistaken Identification

Defendant also contends that the trial court abused its discretion in denying his 

request to read parts of newspaper articles on mistaken identification to the jury during 

closing argument.

Prior to closing argument, defense counsel requested permission to read parts of 

articles from two newspapers regarding mistaken identification. He stated: “What I‟d 

like to do, and my understanding is it‟s in the discretion of the Court and I have to request 

permission from the Court, is read certain parts of articles from the Mercury News and 

another article from the news regarding mistaken identification. I don‟t want to read the 

entire article. As a matter of fact, I have the parts highlighted I want to read and crossed 

everything else out, but I wanted to seek permission from the Court first and bring it to 

your attention before I did it.” 

The trial court asked defense counsel to provide “some detail on what the article 

purports to state or . . . perhaps you can give me a synopsis of the article.” Defense 

counsel then stated: “The first one is the Mercury News. It appears the reporter is 

Fredrick Tulsky, and essentially it‟s just a news article about a gentleman who was 

convicted in 2000 after being the masked intruder who allegedly robbed a 7-Eleven in 

Milpitas in 1998, hopped the counter, took money from the cash register. The clerk 
13

identifies Hutchinson as the robber even though the clerk gives conflicting testimony to 

police officers. Then the attorney calls one defense witness and so forth. [¶] Then the 

other part of the article just states that a federal judge overturned the Milpitas man‟s 

robbery conviction citing persuasive independent evidence. That‟s one article. [¶] 

There‟s a bunch of other stuff in there, Judge, but I don‟t -- you know, I don‟t think it 

should be read at all.” 

Regarding the second article, defense counsel stated: “This is from, it looks like, 

Nature News. I pulled it from the internet here. This is an article written by Laura 

Spinney, and it talks generally about eyewitness identification and its problems and such. 

And the only relevant part I wanted to read to the jury here has to do with a gentleman 

who was arrested, Jerry Miller, for it says kidnap, rape, and robbery of a woman, but I 

could leave that out. I can leave out the kidnap and rape. All I care about is the robbery. 

[¶] And then after two eyewitnesses at the crime picked him out of a lineup and the 

victim identified him at the trial, he was convicted. He was convicted, and it says, 

sentenced to 45 years in prison. I can leave that out. I don‟t really want that. But then in 

March, 2007, the victim‟s clothing was subjected to DNA testing and found not to belong 

to him. His conviction was quashed a month later. Then it said he spent 24 years in jail, 

but I can leave that out, anything that has to do with sentencing, time in prison and such. 

That‟s pretty much all I would want to read, just to express a part of my argument how 

unreliable eyewitness identifications are.” 

The trial court denied the request on the basis that the defense had not presented 

any expert witness testimony on the reliability of eyewitness identification. 

People v. West (1983) 139 Cal.App.3d 606 (West) discussed the two lines of 

authority as to whether counsel may read and/or use newspaper articles on matters of 

common knowledge during closing argument. (West, at p. 610.) West first referred to 

People v. Guzman (1975) 47 Cal.App.3d 380 in which the court stated that counsel 

should have been “ „permitted to refer to magazine and newspaper articles reflecting 
14

illustrations of incidents of misidentification, a matter of common knowledge.‟ 

[Citation.]” (West, at p. 610.) West then noted that a contrary view was stated in People 

v. Mendoza (1974) 37 Cal.App.3d 717. Mendoza concluded: “ „Counsel‟s summation to 

the jury must be based upon facts shown by the evidence or known judicially. [Citation.] 

Counsel may refer the jury to nonevidentiary matters of common knowledge, or to 

illustrations drawn from common experience, history, or literature [citation], but he may 

not dwell on the particular facts of unrelated, unsubstantiated cases.‟ ” (West, at p. 611.)

This court followed the Mendoza line of cases in People v. London (1988) 206 

Cal.App.3d 896. In London, the trial court denied defense counsel‟s request to refer in 

closing argument to a magazine article that reported an incident in which an eyewitness 

erroneously identified a district attorney as the perpetrator of a crime. This court 

concluded that “the trial court properly excluded hearsay about a particular, alleged 

instance of misidentification which had nothing to do with the case before it.” (Id. at 

p. 909) However, London also noted that the trial court permitted defense counsel to 

“„say that in general, that there are repeated instances [of mistaken identity] in 

magazines.‟ ” (Ibid.)

“[W]hether a particular newspaper or magazine article should be read to the jury, 

is a matter that is addressed to the sound discretion of the trial court. [¶] In exercising 

that discretion, the trial court should read the newspaper article and consider whether it 

relates to matters of common knowledge or substantiated illustrations of common 

experience, whether the article is relevant to the case and whether the article may confuse 

the issues in the case. [Citation.]” (West, supra, 139 Cal.App.3d at p. 611.) 

Here, under People v. London, supra, 206 Cal.App.3d 896, the trial court could 

have properly exercised its discretion to deny defense counsel‟s request to the extent that 

he sought to refer to the specific facts of unrelated cases, but this was not the basis for the 

trial court‟s ruling. The trial court denied the request on the ground that there had been 

no expert testimony on misidentification, and thus it did not consider whether some 
15

portions of the articles were related to matters of common knowledge or whether the 

articles might confuse the issues in the case. However, the error was harmless. Here, 

defense counsel cross-examined the witnesses about the discrepancies in their 

identification. He also emphasized during argument the witnesses‟ inability to correctly 

identify defendant and suggested to the jury why Hernandez‟s identification was 

unreliable. Thus, even if defense counsel had been allowed to read the portions of the 

newspaper articles that referred to matters of common knowledge, it is not reasonably 

probable that the result would have been more favorable to defendant. (People v. Watson

(1956) 46 Cal.2d 818, 836.)

C. Sentencing

Defendant contends, and the Attorney General concedes, that he is entitled to: (1) 

presentence credits that had previously been awarded in the Sonoma County case, and (2) 

custody credits for the period between the date of his sentencing hearing in Sonoma 

County and the date of his sentencing hearing in the present case.

When defendant was sentenced in the present case, he was serving a prison term 

of three years for a robbery conviction in Sonoma County as well as a 10-year term for a 

firearm use enhancement. The trial court reimposed these terms and then imposed 

consecutive terms of one year on count one and eight months on count two. The trial 

court also imposed a term of three years and four months for the firearm use 

enhancement on count one and stayed the term for the firearm use on count two. The 

trial court did not award any presentence credits, because it concluded that presentence 

credits were attributable to the Sonoma County case. 

“If a determinate sentence is imposed under section 1170.1 (a) consecutive to one 

or more determinate sentences imposed previously . . . in other courts, the court in the 

current case must pronounce a single aggregate term . . . .” (Cal. Rules of Court, rule 

4.452.) People v. Saibu (2011) 191 Cal.App.4th 1005 (Saibu) held that when a trial court 
16

resentences a defendant to a single aggregate term pursuant to California Rules of Court, 

rule 4.452, it has modified the sentence for purposes of section 2900.5,4and thus the 

defendant is entitled to presentence credits for time that he has already served. (Saibu, at 

p. 1012.) Here, since the trial court imposed a single aggregate term for both the present 

case and the Sonoma County case, defendant is entitled to 486 days of presentence 

credits that were awarded in the Sonoma County case.

As in Saibu, since defendant served part of his sentence in the Sonoma County 

case before he was sentenced to a single aggregate term in the present case and the prior 

case, the trial court is required to award custody credits for the time that he served 

between the date of his original sentencing on January 6, 2009, and the date of his 

resentencing on June 17, 2011. (Saibu, supra, 191 Cal.App.4th at p. 1012.) He is also 

entitled to conduct credits for that period, which are calculated by the Department of 

Corrections and Rehabilitation. (Id. at p. 1013, fn.9.)

The Attorney General argues that the trial court unlawfully stayed the firearm 

enhancement on count two. We agree. 

“Ordinarily, an enhancement must be either imposed or stricken „in furtherance of 

justice‟ under Penal Code section 1385. [Citations.] The trial court has no authority to 

stay an enhancement, rather than strike it—not, at least, when the only basis for doing 

either is its own discretionary sense of justice.” (People v. Lopez (2004) 119 Cal.App.4th 

355, 364.) “The terms „stay‟ and „strike‟ are not legally synonymous. [Citation.] A stay 

is a temporary suspension of a procedure in a case until the happening of a defined 

contingency. [¶] In contrast, a striking is an unconditional deletion of the legal efficacy 

of the stricken allegation or fact for purposes of a specific proceeding. It is tantamount to 

 

4

 Section 2900.5, subdivision (b) provides: “For the purposes of this section, credit 

shall be given only where the custody to be credited is attributable to proceedings related 

to the same conduct for which the defendant has been convicted. Credit shall be given 

only once for a single period of custody attributable to multiple offenses for which a 

consecutive sentence is imposed.”
17

a dismissal.” (People v. Santana (1986) 182 Cal.App.3d 185, 190, fns. omitted.) “The 

failure to impose or strike an enhancement is a legally unauthorized sentence subject to 

correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64 

Cal.App.4th 386, 391.) 

Since the stay of the firearm enhancement on count two constitutes an unlawful 

sentence, the matter must be remanded for the trial court to exercise its discretion to 

either impose or strike the enhancement. In the event that the trial court strikes the 

enhancement, it must set forth its reasons in the minutes. (People v. Superior Court 

(Pipkin) (1997) 59 Cal.App.4th 1470, 1477.)5

III. Disposition

The judgment is reversed and the matter is remanded for resentencing.

 

5

 Defendant points out that the abstract of judgment bears only the Santa Clara 

County case number and thus it must be corrected to reflect: (1) the trial court imposed 

the 18-year term for both the Sonoma County case and the present case, and (2) the 

abstract of judgment filed in Sonoma County is superseded by the amended abstract. He 

also notes that the amended abstract should: (1) specify that the conviction in Sonoma 

County was for second degree robbery (see § 213 [only second degree robbery has a 

midterm of three years]), and (2) cite section 211, rather than section 21, in connection 

with the robbery count in the present case. These corrections must be made to the 

abstract of judgment.
18

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Premo, Acting P. J. 

______________________________

Márquez, J.