P. v. Jones

Filed 7/19/07 P. v. Jones CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted by a jury of attempted carjacking (Pen. Code, 215, 664) and attempted unlawful taking of a vehicle (Pen. Code, 664, Veh. Code,  10851, subd. (a)).^[1] He argues on appeal that the evidence does not support the conviction for the attempted carjacking, prosecutorial misconduct was committed, and the trial court erred by limiting consideration of defense alibi evidence in an instruction to the jury. We conclude that substantial evidence supports the attempted carjacking conviction, no misconduct occurred, and the courts instructional error on consideration of the defense evidence was not prejudicial. We therefore affirm the judgment.

STATEMENT OF FACTS

Defendant was charged with offenses based upon three separate incidents that occurred on three different evenings in February of 2005, at the same intersection in Vallejo. The primary disputed issue with respect to the charges was the identity of the perpetrator. Defendant was not convicted of two of the charges.^[2]

The Carjacking of Angelique Freemans Vehicle (Count Three)

Angelique Freeman drove her Dodge Neon to the Valero gas station on the corner of Tennessee Street and Sonoma Boulevard in Vallejo about 6:00 p.m. on February 18, 2005. Freeman left her car keys in the ignition and purse in the car as she briefly got out of her vehicle to speak to another woman. As she returned to the car she noticed a man she identified at trial as defendant enter the drivers side door. When Freeman attempted to stop defendant by grabbing onto the car door, he warned her to back away or he was going to shoot her. Freeman released the door, whereupon defendant drove off hastily and turned right onto Tennessee Street.

Within two minutes police arrived at the Valero gas station and spoke with Freeman. She was hysterically crying, so the officer had difficulty obtaining information from her. Freeman gave an account of the encounter and a description of the suspect. The police conducted an extensive area check that evening with no results.

Freemans car was found about a week later by the police and returned to her. She subsequently viewed a photo lineup at the police station. Freeman identified defendants photograph number five in the lineup as the man who she believed took her car. Her identification of the photograph was confident but not positive. At a live lineup more than a month later Freeman identified with a question mark a person other than defendant. Freeman testified that at the live lineup she was nervous, and defendant looked slightly different than he did on the date of the crime or in the photo lineup. Freemans identification of defendant at trial was very confident.

The Carjacking of Kimberly Dubois Vehicle (Count One)

Kimberly Dubois stopped at the same Valero gas station at about 5:10 p.m. on February 26, 2005, in her 1992 Honda Accord. As she was pumping gas, defendant entered her car through the open drivers side door and started the engine. Dubois reached through the open window, grabbed defendants shirt and yelled at him to get out of her car. The car lurched forward as Dubois continued to pull on defendants shirt. Defendant told Dubois to back off or he was going to kill her. Finally, defendant popped the clutch, which caused Dubois to loose her grip and fall to the ground near the gas station driveway. Dubois scraped her knees and lost the stone out of her diamond wedding ring in the fall.^[3]

Dubois called the police, and an officer arrived within seconds. She described the suspect to the officer as approximately six feet tall, 200 pounds, Black adult male, clean cut, with no visible scars or tattoos, wearing a red shirt or sweater. The next night, Dubois selected a photograph of defendant from a lineup as the person who took her car. Her identification of defendants photograph was positive, as was her identification of him at trial.

On April 20, 2005, Dubois attended a live lineup, where she was uncomfortable and had difficulty getting a real good look at the subjects. She selected someone other than defendant at the live lineup.

The Attempted Carjacking and Unlawful Taking of Vehicle from Korinne Munson-Korodi (Counts Two and Four)

On February 27, 2005, at just after 5:30 p.m., Korinne Munson-Korodi stopped for gas for her BMW 325i at the 76 Union gas station at the intersection of Tennessee Street and Sonoma Boulevard in Vallejo across from the Valero station. She held her keys in her hand as she stood on the right side of her car pumping gas. Munson-Korodi then observed defendant on the left side of her car across from her looking into the drivers side front window. The car was unlocked. Munson-Korodi screamed and began to walk quickly around the back of her car as defendant opened the door and sat in the drivers seat. From within two feet of defendants face Munson-Korodi yelled at him, Get out of my car, and Help. When she pulled defendant by the shoulders or jacket, he got out of the car. As defendant walked away from the gas station he said, Whatever. I thought it was my car.

Munson-Korodi ran inside the gas station to ask the attendant to call the police, then immediately went back outside to watch the direction defendant was walking. She thought he walked westbound on Tennessee Street. She observed that he was wearing a camouflage jacket over a red sweatshirt with a blue insignia on the front.

Munson-Korodi then called the police on her cell phone, and an officer arrived within five minutes. Although Munson-Korodi appeared to be visibly upset and shaken, she gave a physical description of the suspect to the officer: a Black male adult, in his late 30s, light-skinned, very tall, six-one to six-six, a thin to medium build, clean-shaven, clean appearance, with short curly hair and light brown eyes, wearing a dark-colored or army-type jacket with a red sweatshirt underneath it and drab green pants.

Within minutes, defendant was detained walking alone southbound on old Wilson Street just off Tennessee, about six to seven blocks west from the 76 Union gas station. He was wearing a multi-colored plaid jacket over a red sweatshirt, and blue jeans over drab green pants. Defendant put his head down, and didnt say anything when the officer asked him if he was at Sonoma and Tennessee Street. The officer then asked defendant where he was coming from. After hesitating momentarily defendant responded, from the liquor store on Wilson, which was about a block away.

Munson-Korodi was transported to the detention scene to view a possible suspect. Defendant was standing between two officers with the lights of a patrol vehicle shining on him. The jacket or sweatshirt defendant was wearing seemed different than the one Munson-Korodi recalled and previously described for the officer. She advised the officer that the situation was difficult, and asked if the sweatshirt had a red hood. Once the officers pulled the red hood out, that was the last thing she needed to feel confident. She then said, Thats him. Munson-Korodi testified that she made a very confident identification of defendant at the detention scene as the man who entered her car.

Munson-Korodi also identified defendant at a live lineup on April 20, 2005. Again, she was very certain of the identification. Her identification of defendant at trial was also positive.

The Defense Case

The focus of the defense case was upon presentation of evidence that defendant was at the liquor store on Wilson Street when the attempted carjacking of Munson-Korodi occurred, as he told the detaining officer. Video surveillance tapes of the liquor store and the 76 Union gas station, for the date of February 27, 2005, were collected by a police officer. The owner of the liquor store described the system used for store surveillance. He testified that 31 numbered videotapes are kept in the store, one for each day of the month. Every morning, one of the liquor store owners or an employee routinely puts the tape with the number that corresponds to that particular date in the video machine to record the activities in the store for the entire day. The number of the tape is changed daily and checked most of the time, but not always. The liquor store owner and an employee testified that they had no personal knowledge of the accuracy of the time and date of the tape used on February 27, 2005. The video itself did not have a digital date or time on it.

The videotapes of the gas station and the liquor store for the date February 27, 2005, were played for the jury, and still photographs taken from tapes were admitted in evidence. The videotape of the liquor store depicts a man apparently similar in appearance to defendant making a purchase at 5:44 p.m. The videotape of the gas station shows Munson-Korodi filling the gas tank of her BMW, followed by the man she identified as defendant opening the door of the car and getting in the drivers seat.

The defense also adduced evidence that the investigating officers in the case did not take any fingerprint or DNA evidence from the vehicles that matched defendant. An investigating officer testified that defendant lived at 206 Ohio Street in Vallejo, as he told the officer when he was detained on the evening of February 27, 2005. The address of defendants residence is only a few blocks from the location of the detention. No vehicles or other property that belonged to any of the victims was found at defendants residence or in his possession when he was detained. The defense referred to the lineup and booking photographs of defendant, and argued that his appearance in those photographs did not in some respects match the descriptions given by the victims.

DISCUSSION

I. The Claim of Prosecutorial Misconduct.

We first consider defendants contention that the judgment must be reversed for prosecutorial misconduct. He complains of two instances of misconduct by the prosecutor: First, by improperly withholding discovery concerning a showup [Angelique] Freeman attended, and second, by putting before the jury inadmissible information concerning an uncharged carjacking.

 The applicable federal and state standards regarding prosecutorial misconduct are well established.  A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.   [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves   the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.   [Citation.] [Citation.] [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (People v. Smithey (1999) 20 Cal.4th 936, 960; see also People v. Prieto (2003) 30 Cal.4th 226, 260.)

A. The Failure to Provide Discovery.

Defendant argues that the prosecution committed misconduct by violating the duty articulated in Brady v. Maryland (1963) 373 U.S. 83 (Brady),^[4] to disclose material evidence that is favorable to the defense. The claim of misconduct is based upon a showup that Angelique Freeman attended after her car was stolen. Over defense objection that a police report with respect to this had never been disclosed, Freeman testified about the showup at trial. She was awakened one night by a police officer who asked her to have a look at someone who may be a suspect in her carjacking case. Freeman did not recall the officer who contacted her she thought it was either Detective Matthew Mustard or Officer Robert Knight, the investigating officers in the case or the night on which it occurred except that it might have been a week or so after her car was stolen. She was transported by police vehicle to view a man who was taken from another police car and illuminated with flashing lights. She looked at the man, and realized that he was limping and had lots more facial hair than the suspect she remembered. Freeman told the officer that she couldnt identify him as the person who took her car.

Detective Mustard testified that he was not the officer who transported Freeman to the showup she mentioned, and did not in any way participate in that attempt to obtain an identification. He also had no knowledge of any police report of that event, nor of the person Freeman was asked to identify. The showup is mentioned by Freeman in a transcript of her interview by Detective Mustard on March 11, 2005, that related to her photo identification of defendant, and that transcript was provided to the defense. That interview was the first time Detective Mustard learned of the showup.

Defendant protests that he was not, before or during trial, given a police report concerning the showup Freeman attended. He maintains that without a police report the defense did not know whether Freeman was taken to see [defendant] after his arrest on 2-27-05, or whether Freeman was taken to see a different man whom the police caught and detained on suspicion of one or more carjackings. If defendant was the man Freeman viewed, her failure to identify him at the showup was directly exculpatory evidence; if not, the failure to provide defense counsel with a police report on the showup constituted a withholding of evidence of third party culpability.

We find no violation of the prosecutions obligation under Brady to disclose favorable evidence to the defense. The United States Supreme Court has described the three components of a Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.  (People v. Johnson (2006) 142 Cal.App.4th 776, 782783, quoting Strickler v. Greene (1999) 527 U.S. 263, 281282.) The second element of a Brady claim is that the evidence must have been suppressed by the government. [Citations.] Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendants investigation for him. (People v. Salazar (2005) 35 Cal.4th 1031, 10481049.) We recognize that  Brady suppression occurs when the government fails to turn over even evidence that is known only to police investigators and not to the prosecutor  [citations]. (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225, quoting from Youngblood v. West Virginia (2006) 547 U.S. ____, ____, 165 L.Ed.2d 269, 272, 126 S.Ct. 2188, 2190.) But here, nothing in the record indicates that any police report of the Freeman showup was known to anyone in law enforcement. The defense was apparently given the only reference to the showup that was in the hands of the State that is, the transcript of Detective Mustards interview of Freeman. The information subject to disclosure by the prosecution under Brady is  that readily available to the prosecution and not accessible to the defense. [Citation.]  (People v. Kasim (1997) 56 Cal.App.4th 1360, 1380, quoting People v. Coyer (1983) 142 Cal.App.3d 839, 843.) Detective Mustard indicated that he was not aware of any police report of the showup Freeman described. The suppression component of the Brady test has not been established.

And even if a report existed, it was certainly as available to the defense as it was to the prosecution once the transcript of the Freeman interview was disclosed.  [W]hen information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim. (United States v. Brown (5th Cir. 1980) 628 F.2d 471, 473; see also United States v. Stuart (8th Cir. 1998) 150 F.3d 935, 937 [Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence.]; United States v. Slocum (11th Cir. 1983) 708 F.2d 587, 599.) (People v. Morrison (2004) 34 Cal.4th 698, 715.) If the material evidence is in a defendants possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it  by the exercise of reasonable diligence.  [Citations.] (People v. Salazar, supra, 35 Cal.4th 1031, 1049.) The defense knew of the Freeman showup before trial and had the opportunity, with the exercise of reasonable diligence, to pursue any additional information about it. Finally, the possibility that information in a report might have existed and been helpful to the defense does not make it material in the constitutional sense. (People v. Fauber (1992) 2 Cal.4th 792, 829; People v. Garcia (2000) 84 Cal.App.4th 316, 331.) Defendant has not demonstrated any prosecutorial misconduct related to nondisclosure of a police report on the Freeman showup. (People v. Millwee (1998) 18 Cal.4th 96, 136137.)

B. The Evidence of an Uncharged Carjacking.

Defendant asserts that misconduct also occurred through the prosecutions presentation of evidence in violation of a stipulation and an order issued by the court. The evidence at issue was the subject of discussion before trial. The defense moved to exclude any evidence of an uncharged carjacking from Elizabeth Lanum at the Union 76 gas station at the intersection of Tennessee Street and Sonoma Boulevard in Vallejo on February 25, 2005. Lanum described the suspect for the police, but never made an identification. In response to the motion, the prosecutor stated, We have no objection. Were not going to bring in evidence of that in this case. The trial court then granted the motion in limine.

During the cross-examination of Detective Mustard at trial about his investigation of the three different incidents and victims at issue in the case, defense counsel asked about information he gave to Angelique Freeman before her photo identification of defendant. Specifically, defense counsel asked Detective Mustard if he told Freeman that someone apparently referring to Lanum had been actually hospitalized in one of the other incidents. Detective Mustard also testified in response to further inquiries by the defense that Freeman, Kimberly Dubois, and Korinne Munson-Korodi, had not been hospitalized as a result of the charged crimes committed against them. Over defense objection the prosecutor then reinforced during re-direct questioning of Detective Mustard that it was another individual, not the victims of the charged offenses, who had been hospitalized. The detective also replied in the affirmative to the question: And did you write a report on this incident of the other person who was hospitalized and received injuries as a result of an incident which may have been related to the defendant. Defense counsel subsequently elicited testimony from Detective Mustard that neither defendant nor anyone else was identified by the victim in the uncharged incident. Later, the court prevented the prosecutor from asking where the uncharged carjacking of Lanum occurred.

We find nothing deceptive or reprehensible in the prosecutions questioning of Detective Mustard on the Lanum carjacking.  Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct. [Citation.] (People v. Carrillo (2004) 119 Cal.App.4th 94, 100; see also People v. Prieto, supra, 30 Cal.4th 226, 260; People v. Cunningham (2001) 25 Cal.4th 926, 1020; People v. Samayoa (1997) 15 Cal.4th 795, 841.) While we acknowledge that the stipulation and trial courts ruling on the in limine motion precluded inquiry into the uncharged carjacking by the prosecution, that subject was first broached by the defense during cross-examination. Evidence adduced on cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony. (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946.) The defense choice of strategy often makes admissible in rebuttal certain evidence which would not be admissible in the prosecutions case-in-chief. (People v. Blanco (1992) 10 Cal.App.4th 1167, 1176.) Once the defense initiated inquiry into the subject of another carjacking in which somebody had actually been hospitalized, then elicited further testimony that Freeman, Dubois, and Munson-Korodi were not hospitalized, the prosecutor was entitled to introduce evidence in rebuttal of the same uncharged act to explain the testimony and rehabilitate the witness. (People v. Hawkins (1995) 10 Cal.4th 920, 952.) Despite the previous evidentiary ruling, the trial court did not abuse its discretion by concluding that defendant, through the introduction of evidence of the uncharged carjacking,  opened the door to the prosecutions evidence in rebuttal. (People v. Hart (1999) 20 Cal.4th 546, 653.) After defendants attempt to challenge the veracity of Freemans identification with evidence of another carjacking disclosed to her by Detective Mustard before the photo lineup, he cannot complain that the prosecutor employed reprehensible methods or had no proper evidentiary purpose by further asking about the same incident. We agree with defendant that the prosecutor was not entitled to also ask the detective to identify the gas station where the uncharged carjacking was committed, but the trial court effectively precluded that inquiry. We conclude that no prejudicial misconduct was committed by the prosecutor.

II. The Exclusion of Defense Alibi Evidence.

We proceed to defendants contention that the trial court erred by directing the jury to disregard the best evidence of his alibi for the attempted carjacking from Munson-Korodi, consisting of the surveillance videotape that depicted his presence at a convenience store around the time the crime occurred. The surveillance videotape was admitted in evidence as a depiction of the inside of the liquor store, but the court advised the jury that the date and time on the videotape had not been properly authenticated, and therefore, It is not being received into evidence, and you are not to infer as a result of its admission into evidence, that the date and time shown on the video is, in fact, the accurate date and time.^[5] Defendant complains that the result of the limiting instruction was an improper finding by the court of the preliminary fact of the inaccuracy of the time and date on the monitor of the surveillance videotape. He submits that the court should have instead asked the jury to determine for itself whether the tape was accurate in stating the time and date of 5:44 p.m., February 27, 2005. He claims that the result of the limiting instruction was a denial of his due process right to present a defense.

 The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the States accusations. The rights to confront and cross-examine witnesses and to call witnesses in ones own behalf have long been recognized as essential to due process.  (People v. Garcia (2005) 134 Cal.App.4th 521, 536, quoting from Chambers v. Mississippi (1973) 410 U.S. 284, 294.)  Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. [Citation.] (People v. Ayala (2000) 23 Cal.4th 225, 269.) Ordinarily, proper application of the statutory rules of evidence does not impermissibly infringe upon a defendants due process rights. (People v. Phillips (2000) 22 Cal.4th 226, 238; People v. Lucas (1995) 12 Cal.4th 415, 464; People v. Fudge (1994) 7 Cal.4th 1075, 11021103; People v. Hawthorne (1992) 4 Cal.4th 43, 58.)

Here, our inquiry is directed at the trial courts determination of the preliminary fact (Evid. Code  403) that the date and time of the surveillance videotape had not been authenticated by the defense as accurate, and the accompanying instruction to the jury to limit the consideration of the evidence to a portrayal of the inside of the convenience store. Stated another way, did the defense adequately demonstrate that the time and date specified on the videotape was accurate enough to be considered by the jury for that purpose to establish an alibi defense?

 The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact . . . . [Citation.] (People v. Jones (2003) 112 Cal.App.4th 341, 349.) When, as here, the relevance of evidence depends on the existence of a preliminary fact, the proffered evidence is inadmissible unless the trial court finds there is sufficient evidence to sustain a finding of the existence of the preliminary fact. [Citation.] That is, the trial court must determine whether the evidence is sufficient for a trier of fact to reasonably find the existence of the preliminary fact by a preponderance of the evidence. [Citation.] The court should exclude the proffered evidence only if the showing of preliminary facts is too weak to support a favorable determination by the jury.  [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1120.)

Further, Under Evidence Code section 403, subdivision (c)(1), if the court admits evidence subject to the existence of a preliminary fact, the court [m]ay, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist. On its own terms, this provision makes it discretionary for the trial court to give an instruction regarding a preliminary fact unless the party makes a request. (People v. Lewis (2001) 26 Cal.4th 334, 362.)

The trial court has the preliminary, but not the final, authority to determine the question of the existence of the preliminary fact. Unlike in other situations [citation], under Evidence Code section 403, [t]he preliminary fact questions listed in subdivision (a) [of Evidence Code section 403] . . . are not finally decided by the judge because they have been traditionally regarded as jury questions. The questions involve the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues. It is the jurys function to determine the effect and value of the evidence addressed to it. . . . [T]he judges function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question. The question of admissibility . . . merges imperceptibly into the weight of the evidence, if admitted.  [Citation.] (People v. Lucas, supra, 12 Cal.4th 415, 466467.) The court should exclude the proffered evidence only if the showing of preliminary facts is too weak to support a favorable determination by the jury. [Citations.] The decision whether the foundational evidence is sufficiently substantial is a matter within the courts discretion. (Id. at p. 466.) We review the trial courts decision as to whether the foundational evidence is sufficient for abuse of discretion. (People v. Guerra, supra, 37 Cal.4th 1067, 1120.)

We find that the trial court abused its discretion by giving an instruction that effectively determined the preliminary fact of the inaccuracy of the date and time on the surveillance tape. The credibility of testimony or the probative value of the surveillance tape evidence was for the jury to consider and decide. (People v. Herrera (2000) 83 Cal.App.4th 46, 6263.) The defense presented at least enough foundational evidence to permit a jury to decide the question by showing that the tape was placed in operation in the normal course of business to reflect the specified day of the month and time. The failure of the defense to definitively establish that the accuracy of the date and time was checked by a store employee on February 27, 2005, is a factor that may diminish the reliability of the evidence, but does not disprove the existence of the preliminary fact. The trial court was justified in directing the jury to determine the accuracy of the surveillance tape date and time before considering the evidence for that purpose, but erred by removing that issue from the jury in its instruction. (People v. Jones, supra, 112 Cal.App.4th 341, 350351.)

We turn to the question of prejudice. Where a trial courts ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense, the ruling does not constitute a violation of due process and the appropriate standard of review is whether it is reasonably probable that the admission of the evidence would have resulted in a verdict more favorable to defendant. [Citations.] (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317; see also People v. Humphrey (1996) 13 Cal.4th 1073, 1089; People v. Fudge, supra, 7 Cal.4th 1075, 11021103.)  [T]he proper standard of review is that announced in People v. Watson[ (1956) 46 Cal.2d 818,] 836 . . . , and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension [citation]. [Citation.] (People v. Hustead (1999) 74 Cal.App.4th 410, 422.)

We conclude that the error was not prejudicial under the Watson standard. While the jury was directed not to infer the accuracy of the date and time on the surveillance tape, the evidence was still subject to consideration by the jury for the primary purpose espoused by the defense: to show that defendant was in the liquor store when the carjacking occurred. The evidence presented to prove the identity of defendant as the person who attempted the carjacking and unlawful taking of Munson-Korodis vehicle was overwhelming.^[6] Her identifications of defendant at the detention scene, the live lineup and at trial were consistent and positive. Her testimony was strongly corroborated by the gas station surveillance tape. The alibi defense was weak even if the jury entirely believed the defense evidence and argument that the surveillance tape depicted defendant in the liquor store at 5:59 p.m. The prosecution argued effectively in rebuttal that after commission of the attempted carjacking at 5:45 p.m. defendant could have easily walked the very short distance to the liquor store by the time he was observed on the tape. We are convinced that it is not reasonably probable a verdict more favorable to defendant would have resulted without the trial courts instruction.

III. The Evidence in Support of the Conviction for Attempted Carjacking (Count Two).

Defendants final argument is that the evidence fails to support the conviction for the attempted carjacking from Munson-Korodi. Specifically, he claims that there is no substantial evidence that the man who tried to take Munson-Korodis car did so by means of force or by means of fear or with the intent to use either force or fear. He asks us to reverse the conviction for attempted carjacking, along with the finding that the conviction constituted a serious or violent felony and the five-year enhancement associated with the conviction imposed pursuant to Penal Code section 667, subdivision (a).

Our constrained assessment of the evidence to support the conviction is guided by well-defined rules. We must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In evaluating the sufficiency of evidence, the relevant question on appeal is not whether we are convinced beyond a reasonable doubt [citation], but whether  any rational trier of fact  could have been so persuaded [citation]. (People v. Hernandez (2003) 30 Cal.4th 835, 861.)   We  presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.   [Citation.] If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution [citation]. [Citations.] (People v. Carter (2005) 36 Cal.4th 1114, 1156; see also People v. Kraft, supra, at p. 1053; People v. Salgado (2001) 88 Cal.App.4th 5, 15.) In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision. (People v. Kurey (2001) 88 Cal.App.4th 840, 848849, fns. omitted.) We must uphold the conviction for attempted carjacking unless it appears  that upon no hypothesis whatever is there sufficient substantial evidence to support [it]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Appellant was convicted of an attempt to commit the offense of carjacking.   Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. [Citation.] (People v. Montoya (2004) 33 Cal.4th 1031, 1035; see also People v. Coryell (2003) 110 Cal.App.4th 1299, 1302; People v. Vargas (2002) 96 Cal.App.4th 456, 460.)

To establish the offense of attempted carjacking, the prosecution was required to show that defendant intended to commit elements of the offense and took a direct unequivocal overt act toward its commission. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. (Pen. Code, 21a; see also People v. Herman (2002) 97 Cal.App.4th 1369, 1385; People v. Reed (1996) 53 Cal.App.4th 389, 398.) Under Penal Code section 21a, a defendant may be found guilty of attempting to commit a crime when the defendant acting with the specific intent to commit the crime performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. (People v. Toledo (2001) 26 Cal.4th 221, 230; see also People v. Post (2001) 94 Cal.App.4th 467, 480481.)    To amount to an attempt, the act or acts must go further than mere preparation; they must be such as would ordinarily result in the crime except for the interruption.   [Citations.] (People v. York (1998) 60 Cal.App.4th 1499, 15051506, italics omitted.) An innocuous fact cannot propel ones conduct into the circle of an attempt, which requires a direct, unequivocal action essential to complete the intended crime, short of the ultimate criminal act itself. (Id., at p. 1506, italics omitted.) However, When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action [citation], the defendant may be convicted of criminal attempt. (People v. Toledo, supra, at p. 230.)

Defendant challenges the evidence to support the element of force or fear and the accompanying intent to use force or fear. With respect to carjacking, as with robbery,^[7] [t]he element of force or fear is satisfied if the force or fear caused the victim to give up his or her property. (People v. Smith (1995) 33 Cal.App.4th 1586, 1595.) Courts have recognized that the force required for robbery is not necessarily synonymous with a physical corporeal assault. [Citation.] An assault consists of an attempt coupled with the present ability to inflict an injury unlawfully on another; this injury can be the least unwanted touching. [Citation.] When actual force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim, and is a question of fact to be resolved by the jury taking into account the physical characteristics of the robber and the victim. [Citations.] The force need not be applied directly to the person of the victim. (People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. omitted; see also People v. Brown (1989) 212 Cal.App.3d 1409, 1418.) Nevertheless, for purposes of the crime of robbery, the degree of force is immaterial. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246.)   All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victims resistance . . . .  [Citation.] (People v. Lescallett (1981) 123 Cal.App.3d 487, 491.)

The distinction between an attempted or completed carjacking is of import in the present case when assessing the element of force or fear. Again analogizing to the crime of robbery, It is true that an element of force or fear must be proved in order to establish a conviction for robbery under Penal Code section 211. It is not necessary, however, for this element to be reflected in the overt act of an attempted robbery if the crime has not progressed to that point. . . . Since a completed robbery would have required a force-and-fear element, an attempted robbery may also include this element of the offense, but it is erroneous to say that the crime must have progressed this far in order to constitute an attempt.(People v. Vizcarra, supra, 110 Cal.App.3d 858, 862863.) In fact convictions of attempted robbery have been upheld without proof of an element of force or fear. (Id., at p. 863; see also United States v. Stallworth (2d Cir. 1976) 543 F.2d 1038, 1041; People v. Moran (1912) 18 Cal.App. 209, 210211.)

Here, defendant approached the BMW and peered into the drivers window. He then suddenly entered the car without the victims permission as she was occupied with filling her gas tank. Although Munson-Korodi began screaming at defendant in the crowded gas station and walked quickly toward him, he nevertheless sat down in the drivers seat. He reached for the ignition as if he was about to start to drive, then looked to the right and down, apparently for keys that were not in the car. Defendant did not exit the drivers seat until he failed to start the car and the victim pulled on his shoulders. His unexpected, unauthorized entry into the car through a closed door and assumption of a position in the drivers seat was not only indicative of his intent to remove the car from victims possession, but was also an overt, unequivocal act committed toward the obvious objective of the carjacking he intended to commit. The carjacking was then in progress. (See People v. Birden (1986) 179 Cal.App.3d 1020, 1026.) [W]hen the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway . . . . (People v. Dillon (1983) 34 Cal.3d 441, 455.)

Absent the victims resistance and the fortunate, fortuitous circumstance that she did not leave her keys in the car, an inescapable inference from the evidence is that the offense would almost certainly have proceeded to completion. (See People v. Anderson (1934) 1 Cal.2d 687, 690; People v. Robinson (1960) 180 Cal.App.2d 745, 751752.) On two previous occasions a man identified at trial as defendant successfully accomplished carjackings in the same manner at a gas station in the same location through the use of force or fear upon victims who left keys inside their vehicles. Evidence of defendants participation in other, remarkably similar carjackings even if convictions did not result demonstrates that he entered Munson-Korodis BMW for the purpose of using force or fear if possible to effectuate a felonious taking of the vehicle. (See People v. Imbler (1962) 57 Cal.2d 711, 715.) He then quickly left the premises, apparently wearing an extra jacket and pair of pants to attempt to avoid detection. (People v. Amaya (1952) 40 Cal.2d 70, 80.) We conclude that the evidence supports the finding that defendant committed acts with the requisite specific intent to bring about his objective of using force or fear to appropriate the victims vehicle. He is therefore not entitled to reversal of the attempted carjacking conviction. (People v. Mai (1994) 22 Cal.App.4th 117, 129; People v. Birden, supra, 179 Cal.App.3d 1020, 1026; People v. Vizcarra, supra, 110 Cal.App.3d 858, 862863.)

Accordingly, the judgment is affirmed.

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^[1] The jury was unable to reach verdicts on two charges (counts one and three) of carjacking (Pen. Code,  215, subd. (a)), and a mistrial was declared as to those counts.

^[2] We will more briefly summarize the facts pertinent to the offenses that did not result in convictions.

^[3] The stone was later found by a person at the scene and returned to Dubois.

^[4] Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request [citation], a general request, or none at all [citation]. The scope of this disclosure obligation extends beyond the contents of the prosecutors case file and encompasses the duty to ascertain as well as divulge any favorable evidence known to the others acting on the governments behalf . . . . [Citation.] Courts have thus consistently decline[d] to draw a distinction between different agencies under the same government, focusing instead upon the prosecution team which includes both investigative and prosecutorial personnel.  [Citation.] A contrary holding would enable the prosecutor to avoid disclosure of evidence by the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial, [citation]. [Citations.] Thus, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutors office is an entity and as such it is the spokesman for the Government. [Citations.] [] As a concomitant of this duty, any favorable evidence known to the others acting on the governments behalf is imputed to the prosecution. The individual prosecutor is presumed to have knowledge of all information gathered in connection with the governments investigation. [Citations.] The Supreme Court recently reiterated this principle: whether the prosecutor succeeds or fails in meeting this obligation [to learn of favorable evidence] (whether, that is, a failure to disclose is in good faith or bad faith, [citation]), the prosecutions responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable. [Citations.] (In re Brown (1998) 17 Cal.4th 873, 879880, fns. omitted.)

^[5] An instruction in the terms of CALJIC No. 2.09 was subsequently given to the jury on the limited consideration of evidence.

^[6] The sole purpose of the surveillance tape was to contest the element of identity.

^[7] We may turn to the law of robbery as guidance when examining a conviction for the offense of carjacking. (People v. Gray (1998) 66 Cal.App.4th 973, 984; People v. Hamilton (1995) 40 Cal.App.4th 1137, 1142.) [T]he Legislature intended to treat carjackings just like robbery with two exceptions: (1) carjackings require an intent to either temporarily or permanently deprive the owner of the property whereas robbery always requires an intent to permanently deprive, and (2) carjackings only involve vehicles whereas robbery may involve any type of property. (People v. Alvarado (1999) 76 Cal.App.4th 156, 160; see also People v. Vargas, supra, 96 Cal.App.4th 456, 462463; People v. Duran (2001) 88 Cal.App.4th 1371, 1377.) The analogy between robbery and carjacking is imperfect. Unlike robbery, which requires a taking from the person or immediate presence of the possessor ( 211), the Legislature expanded the taking element to a taking from the person or immediate presence of either the possessor or any passenger. [Citation.] By extending carjacking to include a taking from a passenger, even one without a possessory interest (assuming the other elements of the crime are present), the Legislature has made carjacking more nearly a crime against the person than a crime against property. Moreover, unlike a robbery, a carjacking subjects an unconscious possessor or occupant of a vehicle to a risk of harm greater than that involved in an ordinary theft from an unconscious individual. Accordingly, if the defendant used force or fear, as we found he did here, he is guilty of carjacking whether or not the victim was aware of that force or fear. (People v. Hill (2000) 23 Cal.4th 853, 860861, italics omitted.)