P. v. Jones

Filed 5/11/07 P. v. Jones CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Prentice Jones guilty of second degree robbery (Pen. Code, 211)^[1]and attempted second degree robbery ( 664/211). The jury also found true the allegation that defendant personally used a firearm. ( 12022.53, subd. (b).) In a bifurcated court trial, defendant admitted being on bail at the time of the offenses ( 12022.1) and having a strike conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a 20-year term in state prison.

On appeal, defendant contends that: 1) there was insufficient evidence to support the second degree robbery conviction; 2) the trial court failed to exercise its discretion under Evidence Code section 352; and 3) the abstract of judgment should be corrected to reflect that he was convicted of one count of robbery and one count of attempted robbery, rather than two robberies. The People concede that the abstract of judgment should be corrected. Otherwise, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Ultramar Gas Station

On September 6, 2004, Joginder Singh was working as a cashier at the Ultramar gas station (the gas station) on Highway 18 in Apple Valley. At approximately 10:00 p.m., Singh, a coworker, and a customer were in the mini-mart store. Singh and the customer were near the soda machine when a man wearing a mask and holding a gun entered the store. He demanded that the register be opened. Singh complied and gave the man the money that was in the register. After the man left, Singh called the store owner and the police.

Officer Laura Schuler Marks arrived at the gas station at 10:06 p.m. Singh told her that the suspect was a Black male, approximately 28 to 29 years old, six feet tall, and was wearing a red bandana over his face. He further described him as [n]ot thin, not fat. The suspect left on foot, heading north.

Suzanne Miano lived at an apartment complex about 50 yards away from the gas station. There was a wall that was approximately five to six feet tall, which separated the gas station from the apartment complex parking lot. Around 9:30 p.m. or 10:00 p.m., Miano took her dog out for a walk. She noticed a car parked backwards in a parking spot (the car). The car was facing the gas station. Miano thought it was odd that the car was parked backwards in the space. Furthermore, the parking spaces were designated for tenants who lived in the complex, and she had never seen this car before. As she walked by the car, her dog started barking at the person sitting in the passenger seat of the car. The person then slouched down in the seat; Miano also considered that odd. Miano testified that the person was Black and seemed thin. Miano next saw a man coming from the direction of the gas station, walking in between two of the tenants cars, toward the car that was parked backwards. She described him as approximately six feet tall, dark, and husky built. Miano noticed that there were no lights on in the apartments, particularly of the two tenants whose cars were parked in the parking lot. Miano described the man as walking swiftly or quicker than normal. The man got into the drivers side of the car and immediately drove away. Miano walked back to her apartment and wrote down the license plate number of the car. About five minutes later, she noticed that the police arrived.

At trial, during cross-examination, defense counsel asked Miano if the person in the car could have been a female. Miano responded, With a hat on? Yeah, could have been. On redirect examination, Miano said the person had either dark short hair, or a hat or beanie on.

The prosecution presented evidence showing that the car was registered to defendant. Furthermore, the prosecution presented defendants Department of Motor Vehicles (DMV) record, which showed that his drivers license was suspended in May 2002. The prosecution argued that defendant sat in the passenger seat during the robbery because he had a suspended license and could not drive.

Dannisha Robinson testified at trial that she bought the car from defendant in June or July 2004. When she first bought the car from him, she did not have the money to pay for the registration to be transferred to her name. Robinson testified that she loaned her car to someone named Jonathan Reed (or JR) one day, and he returned it the next morning, about 2:00 a.m. At trial, she could not recall the date she loaned the car to him. She described Reed as an associate.

Defendants mother testified that a police detective came to her house looking for defendant and directed her to have defendant call him. The police were looking for defendant since the car was registered in his name. She told defendant to contact the police, and gave him the detectives name and telephone number. Defendant told Robinson to talk to the police to see what had happened. Robinson then went to see the detective to tell him defendant was not involved. On redirect examination, Robinson answered in the affirmative when defense counsel asked her if she told the detective that she lent the car to Reed on September 12, 2004. During his closing argument, defense counsel corrected himself, noting that the robbery actually occurred on September 6.

Robinson further testified that after she talked to the detective, she registered the car in her name on September 15, 2004. On cross-examination, the prosecution asked Robinson where the car was currently located. Robinson said that defendants brother had it. The prosecution suggested that Robinson knew defendants family pretty well, but she denied it. When the prosecution suggested the possibility that Robinson and defendant concocted this whole story so defendant would not get in trouble and have to go to jail, Robinson denied it. However, she said she did not want to see anyone go to jail. She then stated that she did not like to see people who commit crimes go to jail.

Apple Valley Cigmart

On September 12, 2004, Avnan Bawanah was working at a Cigmart store (the cigarette shop). Around 3:00 p.m., a man came into the store, pointed a gun at Bawanahs face, and ordered him to move to the back of the store. The robber was wearing a hat and a small mask to cover his mouth. Bawanah also said the robber had unusually light colored eyes. The robber grabbed Bawanah by the shirt, put the gun to his head, and walked him to the back room. The robber wanted Bawanah to close and lock the front door, and turn off the lights. He threatened to kill Bawanah if Bawanah did not comply. The robber communicated with an accomplice over a walkie-talkie. He told the accomplice that the situation was under control and asked him to come in from the back door. At one point, Bawanah ran to the back door and locked it from the outside. He went around the store and locked the front door. He then called the police. When the police checked the store, no one was there.

Bawanah later identified defendant as the robber in a photo lineup. He also positively identified defendant in court as the robber.

ANALYSIS

I. There Was Sufficient Evidence to Support Defendants Conviction for Second Degree Robbery

The prosecution argued that defendant was liable as an aider and abettor of the gas station robbery, and the jury found him guilty. Defendant argues that the evidence was insufficient to sustain this conviction because it rested only on the fact that the car involved in the robbery was registered to him. We disagree.

A. Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

[Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra).)

Circumstantial evidence is sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Reilly (1970) 3 Cal.3d 421, 424; People v. Summers (1983) 147 Cal.App.3d 180, 184.) The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence. (Guerra, supra, 37 Cal.4th at p. 1129.) Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 (Kraft).) Furthermore, it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.] (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)

[I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] (Guerra, supra, 37 Cal.4th at p. 1129, italics added.) In other words, we cannot reverse unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331, italics added.)

Applying this standard, defendants argument fails to persuade us that reversal of his conviction is warranted.

B. The Evidence Was Sufficient

Although the record contains no direct evidence that defendant was the person sitting in the car, waiting to aid and abet a robbery, it contains more than enough circumstantial evidence to support such findings. The evidence presented at trial showed that the car owned by defendant was parked at the apartment complex right next door to the gas station. Miano noticed the car because it was parked in a parking lot, which was reserved for tenants of the complex, and she had never seen this car before. Moreover, the car was parked backwards in the parking spot, facing the gas station, poised to leave. When Miano looked at the car, the person sitting in the passengers seat slouched down, indicating that he was trying to avoid being seen. Next, Miano saw a man coming from the direction of the gas station, walking quickly toward the car. This man matched the description of the man who had just robbed the cashier at the gas station. The man went directly to the car, got into the drivers seat, and immediately drove away. The police arrived within minutes after Singh called to report the robbery. The jury could certainly conclude that the passenger in the car was involved in the robbery, waiting in the getaway car. Since the car was registered to defendant, the circumstances reasonably justified the jurys conclusion that defendant was the passenger, and that he used his car to aid in the robbery.

Furthermore, there was other evidence that pointed to defendants guilt.Defendants mother told defendant that the police were looking for him since the car was registered to him, and that the police wanted him to call them. Significantly, defendant did not simply call the police to straighten out the matter. Instead, he told Robinson to talk to the police about the car. Robinson admitted that she went to the police just to tell them that defendant was not involved in the robbery. However, at that point, no one had accused defendant of anything. These circumstances reasonably justified a finding that defendant was avoiding the police by having Robinson talk to them and tell them he was not involved.

Defendant claims he provided affirmative evidence that he sold the car to Robinson prior to the robbery. The record belies this claim. Although Robinson claimed that defendant sold her the car prior to the robbery (in June or July 2004), there was no paperwork to establish any such sale. In fact, Robinson did not register the car with the DMV until September 15, 2004a little over one week after the robbery. She admitted that she wanted to get the car in her name at that point. Although defense counsel tried to establish that Robinson loaned the car to Jonathan Reed on the night of the robbery, Robinson could not remember what day she lent the car to him. Furthermore, when asked if she still had the car, Robinson said that defendants brother had it. If the car belonged to Robinson, why would defendants brother have it? The jury had every reason and right to determine that Robinson was lying. (Ochoa, supra, 6 Cal.4th at p. 1206.)

Defendant also asserts that the passenger in the car could have been a woman. However, Miano unequivocally referred to the passenger as a man when she testified. It was only when defense counsel asked Miano if the passenger could have been a woman, during cross-examination, that Miano simply acknowledged the possibility that the passenger was a woman wearing a hat. Miano said that the passenger either had short, dark hair, or was wearing either a hat or a beanie. The jury apparently was not swayed by this weak evidence to believe that the passenger was a woman. We cannot reweigh the evidence. (Guerra, supra, 37 Cal.4th at p. 1129.)

While we recognize that this was a close case, twelve jurors considered and rejected the defense, and we must accord due deference to the jury. (Ochoa, supra, 6 Cal.4th at p. 1206.) The jury was convinced of defendants guilt beyond a reasonable doubt, and the circumstances reasonably justify the jurys finding of guilt. (Kraft, supra, 23 Cal.4th at pp. 1053-1054; Guerra, supra, 37 Cal.4th at p. 1129.) Thus, viewing the evidence in the light most favorable to the judgment, as we must, we conclude that there was sufficient evidence to support defendants conviction of second degree robbery.

II. The Trial Court Properly Exercised Its Discretion in Admitting Evidence Pertaining to the Suspension of Defendants License

Defendant argues that the trial court abused its discretion under Evidence Code section 352 when it permitted the prosecution to present evidence that his drivers license was under suspension at the time of the robbery for driving under the influence of alcohol. We find no abuse of discretion.

A. Standard of Review

When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidences probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers substantially outweigh probative value, the objection must be overruled. [Citation.] (People v. Cudjo (1993) 6 Cal.4th 585, 609.) A trial court is accorded broad discretion concerning the admission and exclusion of evidence under Evidence Code section 352. (People v. Celis (2006) 141 Cal.App.4th 466, 476.) On appellate review, we uphold the trial courts determination unless it is shown to be arbitrary, capricious, or beyond the bounds of reason. (Ibid.)

B. There Was No Abuse of Discretion

Detective Todd Newton testified that the car used in the gas station robbery was registered to defendant. He also testified that defendants DMV record showed that his drivers license was under suspension on September 6, 2004 (the date of the robbery). Defense counsel objected on relevance grounds. Outside the presence of the jury, the prosecution made an offer of proof that the suspended license was circumstantial evidence that defendant was in the passenger seat of his own car during the gas station robbery because he did not want to be caught driving with a suspended license.

Defense counsel argued that the evidence was prejudicial because he would suspect that the jury would assume defendants license was suspended due to criminal behavior. The court asked why defendants license was suspended, and the prosecution said it was for drunk driving. The court stated that it did not find the evidence to be unduly prejudicial. It also stated that if the evidence had any probative value, it was not very persuasive. The court further stated that its job was not to determine what was probative and what was not, but to weigh the prejudice against the consumption of time. The court concluded that the evidence did not have any significant prejudice and overruled the objection. When the jury returned, the prosecution asked Detective Newton if defendants license was suspended on September 6, 2004. Newton stated that it was revoked on May 2, 2002, and had not been reinstated by September 6, 2004. Detective Newton did not testify as to the reason for the suspension. The DMV report was admitted into evidence.

The record here shows the court properly performed its duty to weigh the prejudicial value of the evidence against its probative value under Evidence Code section 352. The testimony regarding the license suspension was very brief. Moreover, because the claim of prejudice to defendant in this case depended entirely on speculation, we cannot say that the trial court abused its discretion in overruling the objection and admitting the evidence of defendants suspended license at trial.

III. The Abstract of Judgment Should Be Corrected

Defendant claims the abstract of judgment needs to be corrected to show that he was convicted of second degree robbery in count 1 and attempted second degree robbery in count 2. The abstract of judgment currently shows that he was convicted of two counts of robbery. The People correctly concede.

DISPOSITION

The matter is remanded to the trial court with directions to correct the abstract of judgment to show that defendant was convicted of robbery in count 1 and attempted robbery in count 2. The amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise noted.