P. v. Kendig

Filed 6/16/06 P. v. Kendig CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Gerald Sevier, Judge.

Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On March 16, 2004, an information was filed in the Superior Court of Tulare County charging appellant Jarrett Kendig with count I, first degree residential robbery of David Gong (Pen. Code,^[1] § 211); count II, conspiracy to commit first degree residential robbery with eight overt acts (§ 182, subd. (a)(1)); counts III and IV receiving stolen property (§ 496, subd. (a)); and count V, felon in possession of ammunition (§ 12316, subd. (b)(1)). It was further alleged that appellant committed the offenses while released on bail and on his own recognizance (§ 12022.1), and that he personally used a firearm (§§ 12022.5, subds. (a), (d), 12022.53, subd. (b)). Appellant pleaded not guilty and denied the special allegations.

On August 23, 2004, appellant's jury trial began and the court bifurcated the on-bail enhancement. On August 24, 2004, the court granted the prosecution's motion to dismiss count III, receiving stolen property, and renumbered the remaining counts.

On September 2, 2004, the jury found appellant guilty of counts I through IV, and found the firearm allegations true. The court found the bifurcated on-bail enhancement true.

On November 18, 2004, the court denied probation and imposed an aggregate term of 18 years: as to count I, the midterm of six years, with consecutive terms of two years for the on-bail enhancement and 10 years for personal use of a firearm (§ 12022.53, subd. (b)); and as to count IV, a consecutive term of eight months (one-third the midterm). The court stayed the terms imposed for counts II and III, and the section 12022.5, subdivision (a) firearm enhancement as to count I. Appellant also pleaded no contest in an unrelated case to felony receiving stolen property and misdemeanor obstruction of a peace officer (§ 148, subd. (a)(1)), and the court imposed concurrent terms.

On December 23, 2004, appellant filed a timely notice of appeal.

FACTS

On the morning of December 7, 2003, David Gong (Gong) was sleeping on the couch in his living room in Porterville. Gong suffered from cancer and had just left the hospital. Gong had a prosthetic leg and took off the prosthesis when he slept. He had received medication in the hospital and taken cold medication earlier that morning. He had a medical marijuana card and had smoked marijuana the previous night, but Gong testified he was not feeling any effects of the medication that morning.

Around 8:30 a.m., Gong woke up when he thought he heard a car pull into the driveway between his house and his neighbor's house. Gong heard voices and thought the car probably belonged to his neighbor. He was not feeling well and went back to sleep. A few minutes later, Gong woke up again when he heard his back door kicked down. Another door was kicked down and two men entered his house. Gong asked what was going on. The men held guns and flashlights and said, "Sheriff's department, don't move, get your hands up." Gong sat up but remained on the sofa because he was not wearing his prosthetic leg.

Gong testified he had never seen these men before. Gong testified one man appeared Hispanic, dark skinned, about six feet tall, with short hair combed back and a goatee. This man was wearing a black hat that said "ATF" in yellow letters. He was also wearing a black cotton vest similar to those worn for fishing, along with black boots, a utility belt similar to those worn by the police, and black gloves. He was holding a handgun and flashlight.

Gong testified the second man was White, about six feet tall and 170 pounds, with brown hair combed back and a goatee. He was wearing a long-sleeve black sweatshirt, a different type of black microfiber vest with filling that was "kind of poofy" black gloves, black boots, and a police-style utility belt. He also held a handgun and flashlight. He was not wearing a hat.

At trial, Gong identified appellant as the White gunman who was not wearing a hat, and he was "absolutely positive" about the identification. Gong did not previously know appellant, but appellant stood within one foot of him during the robbery. The gunmen initially forced Gong to lie face-down on the couch, but Gong was able to raise his head and look at their faces. The gunmen repeatedly told Gong to put his head down and not to look at them, but Gong testified he studied the gunmen's faces because he was "already suspicious they weren't sheriff's" and "so I took a look at 'em knowing I was going to have to try to identify 'em or describe 'em to the police."

Gong testified the gunmen were in his house for 10 to 15 minutes. They "zip tied" his hands behind his back with plastic restraints, and they repeatedly asked "where's your dope?" Gong directed them to a bag on the dining room table, which contained four grams of his prescription medical marijuana. The gunmen asked if he wanted them to "bring the dogs in," and Gong said "bring in whoever you want" "there was no dope in my house."

Gong testified the Hispanic gunman held a gun to Gong's head while appellant searched the bedroom. The gunmen then switched places, as appellant held Gong at gunpoint and the Hispanic gunman continued to search the house. Their guns were black and appeared to be semi-automatic small caliber weapons. They called out to each other as "Deputy." Gong heard them search through the entire house. They were cursing and repeatedly ordered Gong not to move or look at them.

The gunmen asked Gong where his money was, and Gong said he did not have any money. Appellant opened a box on a table behind the couch and removed over $800. Gong told them the cash was from his Social Security and disability checks, and appellant asked how long he had been disabled. Gong said all his paperwork was in the kitchen. Gong watched as they went through his wallet, which had been on the coffee table. The gunmen discussed whether Gong was restrained well enough so he would stay down, and then they left through the back door.

After the gunmen left, Gong spent about 10 minutes working his way out of the plastic restraints. He took a shower and tried to figure out what happened. He then went through his house to determine if anything was missing. The house was a mess, and all the drawers were open and his things thrown around the rooms. Gong realized the gunmen had taken his wallet, which contained his driver's license and Social Security card, his medical marijuana card, and his insurance and credit cards. They took about 10 Playstation videogames.

Gong also discovered the gunmen took a hand-carved camphor chest from the bedroom, which contained Gong's collection of 400 to 500 comic books. Gong had collected Marvel and DC comic books for 25 years, and primarily owned "X-Men" titles. The comic books were in good condition, and the most valuable books were in plastic covers. Gong testified his collection was worth $6,000 to $7,000. Gong called the sheriff's department and reported the robbery. He also cancelled his credit cards.

Around 9:35 a.m., Porterville Police Officer Joshua Maniss and two other officers responded to Gong's house. Gong was "very calm" in giving his story, and was an "excellent witness." There had obviously been a forced entry into the back door with some type of ramming motion. Gong gave the officers a name possibly connected to a prior incident at his house, but he did not give appellant's name.

Search of Jeff Lawson's House

Detective Powers of the Porterville Police Department investigated the robbery and received the names of several people who might be involved. Gong heard from someone that Josh Somerset was possibly involved in the robbery.

On December 15, 2003, Detective Powers received information that the possible suspects were at Jeff Lawson's house in Porterville. Powers went to the residence without a search warrant and watched the outside of the house. A man and woman walked out of the house and refused to speak with Powers, and they drove off in a large black truck at a very high rate of speed. Powers tried to catch up with the black truck, but it traveled over 50 miles per hour through the residential area. Powers obtained the vehicle's license plate number and determined the vehicle's occupants were Josh Somerset and Misty Shores. Powers called for assistance with the pursuit and then returned to Lawson's house.

Detective Powers approached Lawson's front door and knocked, but no one responded. Powers walked to the side of the house, where the trash cans were located, and found cardboard boxes and two black utility-style vests on the ground. There was yellow stenciling on the back of one vest, and the word "sheriff" was misspelled. The vests were wet, as if someone tried to wash off the spelling error.

Detective Powers returned to her car and requested backup assistance. As she waited in her car, Deon Duke drove up and parked at the house. Jeff Lawson and Eric Coleman also arrived at the residence.

Detective Powers had to leave the area and Sergeant Larry Rodriguez continued the surveillance at Lawson's house. Officer Rodriguez made contact with Lawson, Coleman, and Duke outside the house, and went inside with them. Rodriguez testified appellant, Billy Hyder, and Jason Conley were in the living room, and the television and a police scanner were on. Conley identified himself as "Joe Martinez," but Officer Rodriguez found Conley's photographic identification under the sofa.

Detective Powers returned and conducted a consent search of the entire house except for the room occupied by Josh Somerset, who refused consent. The police took separate photographs of appellant, Coleman, Conley, Hyder, Lawson, and Duke for identification purposes. Appellant's head was shaved and he did not have any facial hair, and there was a small cut on his left eyebrow. The record infers that appellant was not taken into custody after the search of Lawson's house.

Search of Kathy Johns's House

In mid-December 2003, appellant and Melba Appleton moved into Kathy Johns's house in Porterville. Johns testified that appellant "came and went," and he stayed in a particular bedroom and kept his property in there. Appellant and Melba arrived with a couple of suitcases, and a big "bag-like thing" with wheels, like "one of the little duffel bag-like suitcase things with a handle." Johns testified that Billy Hyder stayed with appellant one night.

On December 22, 2003, Johns told appellant that her family was arriving for Christmas and he needed to find a new place to stay. Appellant left sometime that day, and said he would return to collect his belongings.

On the morning of December 23, 2003, Detectives Powers, Azevedo and other officers executed a search warrant for drugs at Johns's house. Johns and her minor son were present, but appellant was not there. The officers found indicia of drug activities, including a police scanner, pay-owe sheets, syringes, bindles and glass pipes with white residue, a mirror and straw, and some packaging materials. The white residue tested positive for methamphetamine. There were no weapons in the house.

The officers also recovered several items from the bedroom which appellant had used: identification cards and paperwork with appellant's name, black ballistic-style sizing vests,^[2] a two-way radio, a cell phone, binoculars, three 16-gauge shotgun shells, nine 12-gauge shells, one 9-millimeter round, and five casual photographs of appellant and other people. In the bedroom closet, the officers found two stacks of comic books; the count was 193 comic books. The shotgun shells were not in a box but laying loosely on a table in appellant's bedroom.

Detective Powers testified some of the comic books were wrapped in plastic, and she believed they might belong to Gong. Powers immediately contacted Gong by telephone, and he provided a more specific description of his stolen comic books. Powers asked Kathy Johns about the comic books, and she said appellant and Melba brought them into the residence.

Later that day, Gong examined the comic books and identified them as his property. Powers testified that she returned the comic books to Gong, and did not have them tested for fingerprints because the black powder would have damaged Gong's property.

Appellant's Statement

On or about December 29, 2003, appellant was taken into custody in Las Vegas.

On January 5, 2004, Detective Azevedo and Sergeant Blain interviewed appellant for one hour at the Clark County Jail in Las Vegas, Nevada. Appellant was advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, he agreed to answer questions, and Detective Azevedo started the tape recorder. Azevedo testified that later in the interview, he turned off the tape recorder at appellant's request, and appellant said he was concerned about being labeled a "tattletale." Appellant wanted to make sure that any information about other subjects was not disclosed. Azevedo and Blain also testified that when they flipped over the tape, the recorder malfunctioned and the second half of the interview was not recorded.

The officers told appellant that syringes and drug paraphernalia were found at Kathy Johns's house. Appellant said that he brought everything to her house and he was willing to accept responsibility for it. The officers then asked appellant about the comic books found at Kathy Johns's house. Appellant said that a month earlier, he traded some drugs to get the comic books. Appellant also said he heard from the person who gave him the comic books that they belonged to "Mr. Gong."^[3] The officers asked appellant who gave him the comic books, and appellant replied, "'I'm not going to answer that.'" Appellant never denied that he had stayed at Johns's house.

Detective Azevedo asked appellant about the other items found in Kathy Johns's house, and appellant admitted the syringes and glass pipes belonged to him. Appellant said the black vests "had been stolen from a uniform shop in Bakersfield, VIP Uniforms." Appellant said police patches and uniform shirts were also taken from the uniform shop, and they were thrown in a dumpster "to get rid of 'em." Appellant said he was not involved in the burglary, and would not say who was involved. Detective Azevedo and Sergeant Blain testified this exchange was not tape-recorded, because it occurred after they flipped over the tape.

Detective Azevedo asked appellant about the black vests found outside Lawson's house. Appellant said the vests were supposed to be thrown away with the shirts, but someone left the vests in a car and just laid them outside Lawson's house for an unknown reason. Appellant would not identify this person.

"Q. Now, during the interview with [appellant], how did he respond when you would ask him whether he committed the robbery at David Gong's house?

"A. He never denied it. Most of his statements in regards to that were something to the effect of I won't admit to that."

Azevedo testified this exchange also occurred when he flipped over the tape and was not recorded.

Detective Azevedo confronted appellant with the fact that they found the comic books in his room at Johns's house. Appellant replied that was "only receiving stolen property." Azevedo also confronted appellant with the fact that he had been identified in a photographic lineup, and that he had the comic books and some of the stolen uniforms. Appellant replied: "'But the vests were never seen. How were the vests ever seen?'" The officers asked appellant how he knew the vests were never seen. Appellant replied: "'Kind of a catch 22 there, ain't it?'"

Detective Azevedo asked appellant who participated in the David Gong incident. Appellant replied: "'I--I can't tell you guys that. How am I gonna sit here and say oh, yeah, we did this and I did it with so and so. I can't do that. That would be completely stupid on my part.'" Appellant also said: "'I'm not gonna admit to doing, at least I'm gonna try not to admit to doing anything,'" and "'I'm not gonna sit here and tell on myself.'" Sergeant Blain said that appellant was actually at Gong's house. Appellant replied: "'But I'm not going to admit that,'" and "I'm not going to admit to doing Gong." Appellant said "'I'm not going to admit to it'" and "'I'm not even saying that I did it'" more than one time during the interview. Sergeant Blain asked appellant who else was involved in the Gong incident. Appellant replied, "'When you say who else, that's assuming that I'm taking responsibility. I'm not taking responsibility for Gong.'"

Appellant was asked if he would help the officers get to the bottom of Gong's case. Appellant replied: "'Right, and I'm not gonna sit here and hang myself, either, though, when I think there still could be a chance of some light at the end of the fucking tunnel.'" Appellant was asked if Alex Rosales was involved, and appellant said no. Appellant was asked if Eric Coleman was involved, and appellant replied: "'You guys are doing your job.'" Appellant said that he fled Porterville immediately after Kathy Johns's house was searched, and headed toward Las Vegas or Arizona to avoid being caught by the police.

The Charges

Appellant and codefendants Jeff Coleman and Billy Hyder were initially charged together with count I, first degree residential robbery of Gong; count II, conspiracy to commit first degree residential robbery; and count III, receiving stolen property, a chest, comic books, and cash. Appellant was separately charged with count IV, receiving stolen property, the comic books; and count V, felon in possession of ammunition. Appellant was charged with firearm and on-bail enhancements, and Coleman and Hyder were alleged to have suffered prior strike and serious felony convictions.

The court granted Hyder's motion for severance of his case, and the matter was set to proceed against appellant and Coleman. The court subsequently granted the prosecutor's motion to dismiss as to Coleman; the prosecutor indicated that charges would be refiled against Coleman. The court also granted the prosecution's motion as to appellant to dismiss count III, receiving stolen property (a chest, comic books, and cash), and renumbered the remaining counts.

Thereafter, appellant was tried for count I, first degree robbery, count II, conspiracy to commit first degree robbery, count III, receiving stolen property, the comic books, and count IV, felon in possession of ammunition.

The Identification Evidence

The investigating officers testified they showed numerous photographic lineups to David Gong. Gong only saw one array with appellant's photograph, and identified appellant as one of the gunmen. The officers also showed Gong the individual photograph of appellant, taken during the search of Jeff Lawson's house on December 15, 2003, when appellant's hair and goatee were shaved; Gong did not identify appellant from this photograph. Gong also reviewed the casual photographs seized from appellant's room in Kathy Johns's house. He identified appellant from one of those photographs as the gunman.

Gong was shown an array with an older photograph of Alex Rosales, taken in 2000, and Gong initially identified Rosales as one of the gunman. Gong also reviewed a lineup with a more recent photograph of Rosales and did not identify him.

Gong was shown one photographic lineup with Jason Conley's picture. Gong positively identified Conley as the Hispanic gunman. Conley was believed to be half Hispanic and half American Indian. Appellant later testified that Conley was an American Indian.

Alex Rosales's Testimony

Alex Rosales testified as a reluctant prosecution witness about the activities at Jeff Lawson's house. On the afternoon of December 5, 2003, Rosales was at Lawson's house and installing a stereo inside Lawson's car. Rosales had been staying at Lawson's house "[o]n and off" for more than a month, and slept on the couch. Rosales testified he was drinking beer and using drugs on that particular day. He had been high and "cranked out" on methamphetamine for two or three days without sleep.

Rosales testified he was friends with appellant, Hyder, Coleman, Lawson, Conley, and Duke. He had known appellant and Hyder for years. On that particular afternoon, appellant, Hyder, and a female named "Tony" were at Lawson's house. Appellant and Hyder were also staying at Lawson's house. Duke had been there earlier but left, and Rosales never saw Coleman that day.

Rosales testified that around 9:00 p.m. or 10:00 p.m., appellant, Hyder, Lawson, and "Tony" left in Lawson's black car. Rosales testified that one person in the group said they were going to Bakersfield, but Rosales could not remember which person said it.^[4] Rosales remained at Lawson's house and spent the night by himself. He was drinking and using "dope," and fell asleep on the couch.

Rosales testified that appellant, Lawson, Hyder, and "Tony" returned to Lawson's house early the next morning, just before dawn when it was still dark. Rosales woke up when he heard their voices. Duke, Conley, and Coleman were not there. Rosales went into the kitchen and found a blue duffel bag on the kitchen floor. Rosales testified that he joined appellant, Hyder, and Lawson as they opened the duffel bag and removed the contents: six or seven black vests, two long-sleeve blue shirts and two tan shirts, and a clear plastic bag with about 100 brand new patches that said "Bakersfield Police Department." There were also four "sizing vests" that "police use to size bulletproof vests for cops." Rosales testified the shirts and vests were "brand new" and still folded in clear packages, and looked like apparel worn by a "SWAT" team, police officers, or sheriff's deputies. The patches were the type worn on uniforms.

Rosales testified that appellant and Hyder said "they had just stolen [the items] out of a sea train from Bakersfield," outside a uniform store.^[5] They returned the apparel into the blue duffel bag and left the bag on the floor. Rosales did not take anything. Rosales testified appellant and Hyder said they were going to "play cops and robbers or something" and "take people's things and shit, you know." Rosales testified appellant and Hyder were laughing and "joking around" when they said that.

Later that morning, appellant and Hyder gave Rosales a ride to Jason Conley's house in Porterville. The blue bag was still on the kitchen floor when Rosales left Lawson's house. Appellant and Hyder said they were going back to Bakersfield because "they forgot some bolt cutters or something." Rosales spent the rest of the day drinking, and passed out on another friend's couch.

Rosales testified he ended up at his girlfriend's house. On December 8, 2003, his girlfriend called the police and turned him in because he had been drinking, using methamphetamine, possessed a glass pipe, and violated probation. He subsequently pleaded guilty to possession of the glass pipe.

Rosales remained in custody until December 29, and went back to Lawson's house about a week later. He did not see the blue duffel bag or its contents, and did not look for the items. On cross-examination, Rosales testified that he knew that Gong identified him as one of the gunmen who broke into his house.

Additional Prosecution Evidence

Martin Nordin (Nordin), the manager of VIP Uniforms in Bakersfield, testified he was contacted by the Porterville Police Department in late December 2003, and asked to examine several items to determine whether they were from the store. These items included a particular brand and style of "ranger vests" seized from outside Lawson's house, and sizing vests recovered from appellant's bedroom at Kathy Johns's house.

Nordin testified that he immediately recognized the items as the type kept in the store's inventory because the sizing vests were not sold by any other uniform store between Fresno and Los Angeles. These and other types of uniforms were stored in a large "Sea Train" mobile storage unit behind the store. Nordin checked the storage unit and discovered the lock had been cut and the door was ajar. Nordin testified the employees did not regularly check the storage unit unless they needed to retrieve something. Nordin did not realize the storage unit had been burglarized until contacted by the police department. Nordin believed the burglary occurred between Thanksgiving, when he opened the storage unit to retrieve Christmas ornaments, and when he was contacted by the police department.

Nordin determined quite a bit of property was missing from the storage unit, including two boxes of distinctive "ranger vests," about 65 tan shirts, over 100 white uniform shirts without patches, 40 to 45 light blue shirts, about 40 dark blue Bakersfield Police Department shirts, some with patches on the shoulder, sizing vests used to fit officers for ballistic vests, and a box of old patches from the Bakersfield Police Department and other regional police and fire departments. The uniform shirts were individually wrapped in plastic. There were no boots or utility belts missing.

At trial, Gong testified that he immediately recognized the comic books recovered from Kathy Johns's house as his property based on the titles, the story lines, and the plastic covers. The comic books still had the distinctive aroma of camphor since they had been stored in the camphor chest at Gong's house. Gong never recovered the camphor chest or any other property. Gong did not know appellant, Conley, Hyder, Lawson, Rosales, or Coleman. Gong was shown the two vests found outside Lawson's residence, but he said they were not the same vests worn by the gunmen.

Gong testified that in January 2004, he was shown numerous photographic lineups and individual photographs. He identified appellant as the White gunman, and another man as the Hispanic gunman. At trial, Gong testified he was "absolutely positive" appellant was the White gunman who was not wearing a hat.

Gong testified he received a telephone call in February 2004, from a person who asked him not to testify, that they would do anything that needed to be done if he did not testify, and asked what was still missing. Gong replied he did not want his stuff back, and "wasn't about ready to sell my peace of mind for, you know, the little bit of money that they took." Gong testified he was mad after he received this call.^[6]

Also at trial, Kathy Johns testified the vests and comic books found in her house did not belong to her, there was no ammunition in her house, she never saw anyone bring these things into the house, and she did not know anything about them. Johns denied telling Detective Powers that appellant and Melba brought the comic books into the house. Johns admitted that she kept a police scanner in the living room.

Defense Evidence

Appellant recalled Gong as part of his defense case, and asked about the various photographic lineups he reviewed. Gong could not recall which photographic arrays he examined. Gong never said that Josh Somerset was one of the gunmen, but someone told Gong that Somerset was involved. Gong passed this information to the officers.

Gong testified that on the day that the officers recovered his comic books, the officers showed him a photographic lineup and he identified appellant as one of the gunmen. Later that same day, the officers showed him a series of individual photographs, and Gong again identified appellant. Gong testified he was "a hundred percent positive that it's him."

Gong testified that he told the officers that someone had broken into his house a few months before the armed robbery, and he believed Jason Martinez was involved in that earlier incident. Gong admitted he had a prior conviction in 1997, and thought it was for possession of marijuana and not possession for sale. It was stipulated, however, that Gong's conviction was for possession of marijuana for sale.

Appellant also recalled Detective Powers, and asked about the individual photographs of appellant, Lawson, Duke, Conley, Coleman and Hyder, which were taken during the search of Lawson's house. Powers testified these photographs were shown to Gong. Gong initially picked Conley as the Hispanic gunman, but said the Hispanic gunman "may have been a little bit darker-complected" than Conley.

Appellant's Trial Testimony

Appellant testified that he separated from his wife in the summer of 2003, and moved into Lawson's house. Appellant shared a room with Hyder and kept his things in a duffel bag on wheels. Rosales and Coleman lived on and off at Lawson's house. Appellant admitted that "everybody" at Lawson's house used drugs, and appellant started to inject methamphetamine. Appellant had only used marijuana before that time. Appellant admitted he had a prior felony conviction for commercial burglary in 1998 for stealing a 12-pack of beer from a market. It was stipulated that appellant was prohibited by law from owning or possessing a firearm.

Appellant testified that early on the morning of December 7, 2003, he was installing fish tanks in Lawson's house, and trying to hurry because Lawson promised to pay him $500 for the job. Appellant was working in the garage when someone banged on the door, and it was Cliff "Trigger" Pruitt. Appellant knew Pruitt because he stayed at Lawson's house a few times, but appellant did not expect him to show up that morning. Pruitt said he was looking for some methamphetamine and asked if appellant had some. Appellant said yes. Pruitt asked if appellant knew the value of comic books, and appellant said he had no idea. Pruitt produced a "duffel bag type bag" which contained comic books and vests. Pruitt said he "took" the comic books from someone.

Appellant offered Pruitt a sixteenth of an ounce of methamphetamine for the comic books. Appellant only had a quarter ounce, however, and gave Pruitt half of his stash. Pruitt took the comic books out of the bag and left them on the garage floor, and "threw in" the vests. Pruitt took the duffel bag with him. Pruitt never mentioned David Gong, or where he got the vests and comic books.

Appellant identified the sizing vests recovered from Kathy Johns's house as the vests which Pruitt left with him. Appellant testified he suspected the comic books had been stolen but did not know that for a fact. Pruitt did not say anything about the vests but appellant "figured" they were probably stolen.

Appellant testified he left the comic books and vests in the garage and continued working on the fish tanks. Appellant finished the project and Lawson paid him. Lawson allowed appellant to borrow his car and drive to San Francisco. The comic books and vests were still in the garage when appellant left for San Francisco later that day. Appellant testified he drove to San Francisco with Billy Hyder, Tony Vangeezbek, and Melba Appleton, and they arrived when it was dark.

Appellant testified he rented a motel room for two nights, and drove back to Porterville on December 9, 2003. Lawson was upset because appellant stayed "a day too long" in San Francisco with his car. Lawson and appellant "got into it" and Lawson kicked appellant out of his house. The comic books and vests were still in the garage.

Appellant shoved everything he had into his duffel bag, including the comic books and some of the vests, and moved to Kathy Johns's house. He left the other vests in Lawson's garage. Appellant admitted he placed the comic books in the bedroom closet at Johns's house. The bedroom was completely furnished when he moved in, and the shotgun shells and ammunition were already there.

Appellant admitted he was at Lawson's house on December 15, 2003, when the police arrived, even though Lawson had thrown him out the previous week. Appellant explained he was just visiting Hyder and Conley. Appellant admitted he was inside the house when an officer knocked on the door, but stayed inside with Hyder and Conley and did not open the door: "I wouldn't say I was hiding. It was not my house to go open the door." Appellant denied that he quickly shaved his hair and goatee when he realized the police were outside Lawson's house, and claimed he shaved a few days earlier. Appellant did not know the vests were outside Lawson's house when the police arrived, he thought they were in someone's car and going to be dumped.

Appellant testified that he stayed at Kathy Johns's house for about two weeks. He moved into Motel 6 just before Johns's house was searched, and was not there when the police arrived. Appellant testified he later went to Las Vegas to visit his sister, but insisted he was not running from the police and did not think he was a suspect in the Gong case. Appellant knew that Johns's house had been searched, however, and admitted the search was "probably" one of the reasons he went to Las Vegas.

Appellant testified he knew of Gong but did not know where he lived, and had never met or seen him before the trial. When appellant returned from San Francisco, Josh Somerset told him about the robbery at Gong's house, but appellant denied having any involvement or committing the armed robbery.^[7] Appellant was positive that he drove to San Francisco on December 7, 2003, the same day as the Gong robbery. Appellant never heard anything about VIP Uniforms in Bakersfield until he was interviewed by the officers in this case. Appellant denied any involvement in that burglary.

Appellant admitted he knew Rosales and they were both staying at Lawson's house and using methamphetamine. Appellant denied that he made any of the statements Rosales testified to at the trial: that he was going to Bakersfield to steal from a uniform shop, he was going to tie people up and take their stuff, or he was going to pick up bolt cutters. Appellant denied he saw any of the activities described by Rosales.

Appellant testified he was arrested in Las Vegas around December 29, 2003, and the officers interviewed him on January 5, 2004, about Gong's robbery and the search of Kathy Johns's house. At that time, appellant believed Cliff Pruitt performed the robbery and took the comic books from Gong, but Pruitt was "not a very nice man" and appellant was "scared of retaliation" because Pruitt was wanted for murder. Appellant testified that Pruitt died in January 2004.^[8]

Appellant testified he talked with the officers about his fear of naming names and retaliation. Appellant told the officers he strongly believed the comic books belonged to Gong, but complained the officers tried to get him to admit to something he did not do. Appellant admitted the drugs at Johns's house belonged to him. Appellant also admitted that when the officers interviewed him, they asked about the vests and he responded that the vests were never seen. Appellant testified that "it's not that clear to me what I meant right there."

Appellant testified he was positive Coleman and Rosales did not rob Gong. Appellant was part Cherokee, and knew that Jason Conley was an Indian.

Appellant was convicted of robbery, conspiracy, receiving stolen property, and being a felon in possession of ammunition, and the firearm and on-bail enhancements were found true. On appeal, he contends the court improperly permitted Gong to testify about the anonymous telephone call he received, and that much of Rosales's testimony was inadmissible hearsay and not within the coconspirator's exception to the hearsay rule. Appellant also contends he was improperly convicted of both robbery and receiving stolen property.

DISCUSSION

I.

DAVID GONG'S TESTIMONY ABOUT THE TELEPHONE CALL

Appellant contends the trial court improperly permitted Gong to testify about the anonymous telephone call in which he was asked not to testify. Appellant contends the testimony was not relevant, it was hearsay, and it was not admissible under the state of mind exception. Appellant asserts the erroneous introduction of this evidence was prejudicial because the evidence against him was not strong. Respondent asserts that even if Gong's testimony was inadmissible, any error was harmless because the evidence against appellant was overwhelming.

A. Background

During pretrial motions, defense counsel moved to exclude any evidence of a conversation between Gong and Sommar Kendig (appellant's wife), and argued it was prejudicial pursuant to Evidence Code section 352. Counsel argued there was no evidence that appellant requested his wife to make that contact, and there were foundational problems with the evidence.

The prosecutor's offer of proof was that in February 2004, just before the preliminary hearing, Ms. Kendig called Gong and said that she did not think appellant "needed to get so much time and asked if she returned the property to him, whether or not he would agree not to go to court and testify or whether she could offer him money to keep him from testifying in this case." The prosecutor argued Gong could testify to that conversation to show his state of mind and the effect of that statement on him. "It would not necessarily be attributed to [appellant], but it can go towards the – explaining the victim's willingness to testify, explaining the effect that that had on the witness."

The court asked the prosecutor to clarify why such evidence was admissible. The prosecutor again explained that it was relevant to show the impact of the statement on the victim, "to show if there's any issues regarding his willingness to testify or how he feels about being here in court," the effect on him, and his state of mind.

Defense counsel replied there were foundational problems because the conversation occurred on the telephone, and there was no evidence Gong had any prior contact with Ms. Kendig or knew who she was. Counsel argued the evidence was prejudicial because the jury could infer that appellant made an admission through his wife, based on her conversation with Gong.

The court stated that it would probably allow the evidence to be introduced for a limited purpose, and it would give CALJIC No. 2.05 as a limiting instruction to admonish the jury not to consider the evidence toward appellant's consciousness of guilt unless it found appellant authorized the effort.

During the course of trial, the court asked the parties for further argument on the admissibility of the purported telephone call from Ms. Kendig to Gong. The prosecutor again argued the evidence was admissible to show the effect on Gong's state of mind when he received this call. Defense counsel again replied the evidence was irrelevant and there were foundational issues as to whether the caller was really Ms. Kendig. Counsel also noted Ms. Kendig had already asserted the marital privilege not to testify at appellant's trial and she was unavailable.

The court found the evidence was relevant as to Gong's attitude toward testifying. The court agreed with defense counsel's foundational argument, however, because there was no way to tie the call to appellant. The court ordered Gong not to refer to the caller's alleged identity as Ms. Kendig.

At trial, the prosecutor asked Gong if he received a telephone call about the case. Gong testified that he received a telephone call in February 2004 from an unknown person, and this person asked Gong not to testify. This person said "that they would do anything that needed to be done if I didn't testify and that it wasn't really Jarrett doing it because he was on drugs ...."

In response to Gong's testimony, defense counsel raised a hearsay objection. The court ruled:

"… That part of the answer that remains in is, 'They asked me not to testify; they would do anything that needed to be done if I didn't testify.' The rest of the answer is stricken. The jury will disregard it and not consider it."

Thereafter, the prosecutor continued with his questioning, and the court admonished the jury:

"Q. Did the person say anything to you about whether that person could get you any of your property back?

"A. They asked me what exactly was still missing, and I basically said, you know, I didn't want my stuff back. I wasn't about ready to sell my peace of mind for, you know, the little bit of money that they took.

"Q. Okay. How did you feel about this after you received this phone call?

"A. I was mad.

"THE COURT: Ladies and gentlemen, this evidence relating to the phone call is coming in for a limited purpose. The limited purpose for which it is coming in, and you may only consider it for the limited purpose that it is being received, is as to the witness's state of – attitude toward the action and toward the giving of testimony, only for that purpose."

B. Analysis

Appellant asserts Gong's testimony about the telephone call was irrelevant and prejudicial.

"… Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends '"logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]" (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)

Relevant evidence may be excluded if such evidence is substantially more prejudicial than probative under Evidence Code section 352, i.e., if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Guerra (2006) 37 Cal.4th 1067, 1114 (Guerra).) A court's ruling under Evidence Code section 352 is also subject to review under the abuse of discretion standard. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

The trial court properly excluded Gong's proffered testimony that appellant's wife called him and asked him not to testify. As noted by defense counsel, there were foundational and authentication issues. While the caller apparently identified herself as appellant's wife, there was no evidence as to whether Gong knew Ms. Kendig, that he was familiar with her voice, or that she was actually the person placing the call. (People v. Collins (1975) 44 Cal.App.3d 617, 623, superseded by statute on another ground as stated in People v. Cole (1982) 31 Cal.3d 568, 577-578.) Moreover, the evidence was not introduced for the truth of the matter, but for the nonhearsay purpose of showing the effect of the call on Gong. The trial court appropriately admonished the jury as to the limited admissibility of this evidence, and there is no evidence to rebut the presumption that the jury followed the limiting instruction. (Guerra, supra, 37 Cal.4th at p. 1115.)

The problem with this evidence, however, is that the trial court found Gong's testimony about the telephone call was relevant as to Gong's attitude toward testifying. Gong's attitude, however, was not a disputed issue in this case. Officer Maniss testified that immediately after the armed robbery, Gong was an "excellent witness" and "very calm" as he reported the incident. Detectives Powers and Azevedo testified that during their investigation, Gong looked at numerous photographic lineups and examined the comic books and vests recovered during the various searches; he identified the comic books as his property, and identified suspects from the photographic lineups. There is no evidence that Gong refused to cooperate with the investigation, that he was afraid of appellant or his associates, or that he did not want to testify against appellant in this case. (See, e.g., People v. Noguera (1992) 4 Cal.4th 599, 621-622; Guerra, supra, 37 Cal.4th at p. 1114.) Instead, Gong testified the telephone call made him mad and he was not going to trade his peace of mind for the caller's offer of restoring his lost property. If Gong had been a reluctant witness, changed his story, or withdrawn his previous identification of appellant, the telephone call would have been relevant to demonstrate the impact of the conversation on Gong's actual testimony. Absent these issues, however, such statements were not relevant. (People v. Ruiz (1988) 44 Cal.3d 589, 608; People v. Jablonski (2006) 37 Cal.4th 774, 819 (Jablonski); People v. Hernandez (2003) 30 Cal.4th 835, 872-873.)

Even if the court abused its discretion and Gong's testimony was not relevant, the error does not require reversal. While appellant admitted he was in possession of stolen property, he argues that there were only two pieces of evidence to support his convictions for robbery and conspiracy: (1) Gong's testimony about the telephone call, and (2) Gong's identification testimony. Appellant asserts the telephone call evidence led to the inference that appellant actually committed the robbery because the caller was trying to bargain with Gong so he would not testify against appellant. As for the identification testimony, appellant argues Gong's identification was suspect and subject to attack because he was sleepy and under the influence of medication when the armed robbery occurred, the gunmen repeatedly shoved his face in the pillow and he did not have the opportunity to look at them, it took Gong quite a while to realize the gunmen were not officers and he had been robbed, Gong was unable to identify appellant from a recent photograph, and Gong said there were only two gunmen but identified three men from the photographic lineups. Appellant argues Gong's inadmissible testimony about the telephone call corroborated his suspect identification of appellant, and was thus prejudicial.

These arguments are specious given the entirety of the record. At the time of the robbery, Gong had just been released from the hospital. He had taken cold medication and was not feeling well, and admittedly smoked medical marijuana the previous night. However, Gong testified he was not feeling any effects of any medication when the gunmen burst into his house and claimed to be law enforcement officers. Gong was understandably confused when the gunmen started to search his house for personal items, and he realized they were not officers. Gong was confined to the couch because he had removed his prosthetic leg, and the gunmen initially forced him to lie face-down on the couch. Gong testified, however, he was able to raise his head and look at their faces during the 10 to 15 minutes they were in his house. While the gunmen repeatedly told Gong to put his head down and not look at them, Gong testified he studied the gunmen's faces because he was "already suspicious they weren't sheriff's" and "so I took a look at 'em knowing I was going to have to try to identify 'em or describe 'em to the police."

Gong provided a very specific description of the two gunmen, down to distinctions between their police-style clothing. At trial, Gong testified appellant was the White gunman who was not wearing a hat, he was "absolutely positive" about the identification, and that appellant stood within one foot of him during the robbery. Appellant contends that Gong's identification was suspect because he claimed there were only two gunmen but identified three men from photographic lineups. As explained ante, however, Gong looked at numerous photographic lineups but only looked at one array with appellant's photograph, and identified him as the White gunman. Gong did not identify appellant based on the separate photograph taken of him on December 15, 2003, during the search of Lawson's house, but appellant's head and facial hair had been shaved, and the implication was that he failed to answer the door because he quickly shaved.

As for the Hispanic gunman, Gong initially identified Alex Rosales from an older photograph in an array, but did not identify him in an updated photograph in another array. Instead, Gong identified Jason Conley as the Hispanic gunman, and there was evidence that Conley was either American Indian, or half Hispanic and half American Indian. Gong's identifications from the photographic lineups do not undermine the credibility of his identification of appellant at trial.

Appellant was found in possession of a significant portion of Gong's distinctive comic book collection, still smelling of camphor from the storage chest. Appellant claimed he received the comic books from someone else, but admitted to Detective Azevedo and Sergeant Blain that he knew the comic books probably belonged to David Gong. Alex Rosales testified that appellant participated in the conspiracy to break into the Bakersfield uniform shop. As we will discuss in section II, post, this evidence was admissible and supports the conspiracy charge against appellant. Moreover, appellant was in possession of the sizing vests stolen from the uniform shop in Bakersfield, and knew that the other vests had been dumped outside Jeff Lawson's house.

Given the overwhelming evidence against appellant, we conclude any error was harmless under the standards for assessing the prejudicial effect of either state error in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), or federal constitution error in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (Jablonski, supra, 37 Cal.4th at p. 821.)

II.

ALEX ROSALES'S TESTIMONY

As set forth ante, Alex Rosales testified about the activities at Jeff Lawson's house. The trial court overruled appellant's hearsay objections to several aspects of Rosales's testimony, and found such evidence admissible pursuant to the coconspirator's exception to the hearsay rule. (Evid. Code, § 1250.)

Appellant raises several issues as to Rosales's testimony. Appellant asserts the court improperly permitted Rosales to testify about two hearsay statements: (1) that "someone" said they were going to Bakersfield, and (2) that appellant and/or Hyder said they were going to "play cops and robbers."

Appellant separately argues defense counsel was prejudicially ineffective because he failed to object to Rosales's hearsay testimony that (1) someone said they got items in the duffel bag from a uniform shop and the Sea Train container in Bakersfield, and (2) appellant and Hyder said they were going back to Bakersfield to pick up some bolt cutters.

Respondent has failed to address the specific merits of appellant's hearsay contentions, but simply dismisses appellant's arguments and asserts any evidentiary errors were harmless given Gong's positive identification of appellant.

The resolution of these issues involve several overlapping questions, and we will address those concerns herein.

A. Appellant's Objections

As set forth ante, appellant, Coleman, and Hyder were charged together in count II with conspiracy to commit first degree residential robbery, with eight overt acts: (1) obtaining police vests; (2) arming themselves with firearms; (3) obtaining a vehicle; (4) driving to Gong's house; (5) entering Gong's house; (6) pointing guns at Gong; (7) tying Gong's hands; and (8) stealing Gong's property. The prosecutor dismissed the charges against Coleman but intended to refile, Hyder's severance motion was granted, and appellant was tried alone.

During direct examination, Rosales testified appellant, Hyder, Lawson and a woman named "Tony" left Lawson's house in Lawson's car. The prosecutor asked if anyone said where they were planning to go. Rosales testified, "Somebody said that they were going to Bakersfield," but he could not remember who said that.

Defense counsel raised foundational and hearsay objections to Rosales's statement that someone said they were going to Bakersfield. The court conducted a side-bar conference and asked the prosecutor for an offer of proof. The prosecutor made an offer of proof as to Rosales's testimony: that appellant, Lawson, and Hyder left Lawson's house and said they were going to Bakersfield; they returned a few hours later with a bag full of police uniforms and vests; and Rosales overheard them saying that "we're going to play cops and robbers, and we're going to tie people up." The prosecutor further stated that an employee of a Bakersfield uniform store would testify the uniforms and vests were stolen from that store.

Defense counsel argued there was no evidence appellant made any of these statements. The prosecutor replied that Rosales did not know exactly which person made some of the statements, but the evidence was admissible pursuant to Evidence Code section 1223 as to statements of coconspirators. Defense counsel objected because the other parties had not been charged. The prosecutor clarified that Hyder and Coleman had been charged. The court replied that it did not make a difference if the coconspirators had been charged, but the statements had to be made during the course of the conspiracy.

Defense counsel argued the evidence was irrelevant, and there was nothing to show the uniforms were from Bakersfield or used in the Gong robbery. The prosecutor explained the statements were relevant to establish the conspirators possessed the stolen uniforms, that appellant was involved, and the theft of the vests was one of the overt acts charged in count II, conspiracy. Moreover, Gong already testified the armed robbers pretended to be officers, they were wearing vests and clothing similar to the items stolen from the uniform shop, similar items were recovered from Lawson's and Johns's house, and the uniform burglary occurred within the same time