P. v. Olesh
Filed 6/20/13 P. v. Olesh CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY
JAMES OLESH,
Defendant and Appellant.
A132983
(Contra Costa County
Super. Ct. No. 5-101327-5)
I.
INTRODUCTION
A
jury found Jeffrey Olesh and codefendant Edward Fraser guilty of
§§ 211, 212.5, subd. (c)), finding true, as to Fraser, that he used a
firearm and, as to Olesh, that a principal in the crime was armed with one (
sentenced to an aggregate six years in prison, Olesh’s sentence consisting of a
five-year upper term for the robbery (id.,
§ 213, subd. (a)(1)(B)(2)), a consecutive one-year enhancement for the
vicarious arming, and a concurrent two-year midterm for violating probation
that had been granted for grossly negligent discharge of a firearm
(§ 246.3, subd. (a)).
Olesh
alone appeals, raising several claims of improper admission of evidence, a
claim of ineffective assistance concerning his counsel’s failure to object to a
ruling that led to defense evidence not being introduced, and a claim of
cumulative prejudice. We affirm the
judgment, finding no prejudicial error.
II. FACTUAL
AND PROCEDURAL BACKGROUND
The
case concerns the armed robbery of Jennafer Dwinell shortly before midnight on
January 2, 1010, at her job as nightshift main office manager at the Days Inn,
in the 5300 block of Clayton Road in Concord.
The brevity and stress of the encounter plus her assailants’ concealing
clothing left Dwinell unable to positively identify them at trial. This made the main issue for both defendants
identity, and lent significance to accounts by their respective
girlfriends. One testified at trial under
immunity; the other’s testimony from the preliminary hearing was admitted after
failed attempts to locate and serve her for trial.
Dwinell was working alone in the front desk area when,
upon emerging from a restroom in the back, she saw a man enter the lobby and
rush her way, wearing a black or brown cowboy hat low on his brow, a blue
bandanna concealing his lower face, and a beige or off-white sweat suit, with
matching top and bottom, like workout clothes.
He walked up, grabbed her with one hand by the ponytail and collar,
pushed her into some tables and chairs in a corner dining area, and commanded
twice, “Get on the floor.†Dwinell did
not at first see a second man enter but became aware of him from talk between
the two men about where the money was.
The first man grabbed her again, pulled her back to her feet, and walked
her around a half-wall divider into a small office (10 or 12 by five feet),
where he demanded keys and then cash.
His short stature compared with her own, his grip on her hair and
collar, plus what felt like his other hand pressing into her lower back,
forced Dwinell’s head and gaze upward, and she only saw the second man once
they were all in the office. Both men
wore bandannas, one red and one blue, and the second man wore a “beanie cap,â€
jeans and a blue sweatshirt, and carried a black gun that looked to Dwinell,
who had experience firing shotguns, like a sawed off shotgun. He held the gun by its stock and barrel, in a
“ready stance,†and Dwinell noticed, on the floor of the lobby, a soft-carry
guitar case she assumed had held the gun.
Both men wore gloves, and Dwinell directed them to two drawers, one
holding keys and the other cash. The man
with the gun took their contents.
Dwinell usually conducted transactions in credit and had come on shift
that night without counting the cash, but she thought there had been at least
one $20 bill, plus smaller bills, and certainly no more than $80 or $100
total. (She would tell an officer later
that the amount was $50 or $60.)
In
the office was a closed door that led to the apartment of live-in housekeeping
and maintenance manager Mohib Nabizada, who was off duty but in the
apartment. The gunman tried that door (
Dwinell), but it was locked. The shaking
of the doorknob roused Nabizada, who figured it was Dwinell wanting
something. So he left the apartment, not
by the office door but by one that opened on a public hallway, walked down it,
and peered into the lobby area through a glass-paneled door. Through the glass, Nabizada saw the men with
their faces covered, one holding Dwinell from behind and the other in
front. From surveillance monitors in the
office, Dwinell and the intruders could see Nabizada peering in, and the first
intruder said: “We’ve got company. Hurry up.â€
Frightened, Nabizada quickly went back to his apartment and called 911,
having noticed that one of the men wore a cowboy hat. The intruders left through the front lobby
door, warning Dwinell to stay there and “not call the cops.†The gunman then reentered to retrieve the
soft case from the floor.
A
video exhibit played for the jury, with descriptive narrative from witnesses
Dwinell and then Nabizada, shows concurrent split-screen views from four
surveillance cameras mounted inside the hotel.
Three notably showing the two-minute encounter are one trained on the
front door of the lobby, one in the lobby area before the desk, with the
glass-paneled door through which Nabizada peered behind, and one with a view of
the hallway down which Nabizada walked.
The light-clad intruder enters first, not visibly armed but wearing
loose fitting clothes. He trots without
evident physical impediment to Dwinell (partly visible just briefly) and goes
out of camera range. Immediately behind
him enters a taller, dark-clad intruder, who removes a shotgun from a black
case and drops it to the floor before moving to the desk and then back across
the lobby into the office, off camera.
(What Dwinell described as a “beanie cap†on the second man was a knit
cap pulled down onto his brow.) About a
minute into the sequence, the first intruder crosses the lobby, steering a
stiffly restrained Dwinell ahead of him, and goes off screen into the
office. Nabizada immediately leaves his
apartment and walks down the hall to the glass-paneled door through which he
peers (visible on two cameras) until, with a troubled look, he retreats back to
his apartment. Some two minutes into the
sequence, both intruders reemerge from off screen and leave, the dark-clad one
first, through the lobby’s main door.
Nabizada leaves his apartment again (presumably having called 911) and
goes back to the glass-paneled door, through which he peers again just as the
dark-clad man hurriedly reenters to retrieve the soft case from the floor
before exiting again. Nabizada enters
the lobby during that final exit and crosses the lobby, looking toward the
office before hesitantly following the exit path of the intruders.
Dwinell
said in testimony that she had limited opportunity during the robbery to see
either man’s face. Her view of the first
man, given his cowboy hat and bandanna, was limited to the area between his
eyebrows and lower eye sockets or cheekbones, and she saw his face for only
about 10 seconds as he initially approached her from the lobby door. Her view of the man with the shotgun was
longer and occurred in the office. It
was 30 to 45 seconds at most but less than “a full spectrum†because she was
still being restrained by the first man and “held upwards†(which the record
shows she demonstrated by looking upwards, her head tilted up).
Six
days following the robbery, after information to Concord Police Department
(CPD) from Fraser’s girlfriend, Danielle Wilson, focused suspicion on Olesh and
Fraser, Detective David Ishikawa prepared six-person photo lineups involving
each man and showed them to Dwinell at the hotel, giving her standard
admonishments. Ishikawa testified that,
for the lineup containing Fraser’s photo, Dwinell narrowed it down to photos
number two (Fraser’s) and four as the gunman, but saying that number two, based
on the eyes and the bone structure of the face, looked more like the gunman
than did four.
Regarding
the lineup containing Olesh’s photo, Dwinell was not able to identify any one
photo; she told Ishikawa that none “jumped out†but that two of them (neither
one being Olesh’s) were definitely not
the other man. Dwinell confirmed at
trial that, based on her “[m]inimal†observation of facial structure and
“overall apparent build,†“breadth of shoulders and whatnot,†she had been able
to “rule people out for sure†but not make a positive identification, and she
had also been shown still shots from the incident at that time. At the trial, nearly a year and a half later,
she could not positively identify the two people who rushed in on her, although
she identified the individuals in still shots from the video as depicting those
who entered that night, and had done so as well at the preliminary hearing in
November 2010.
Olesh
On
the morning of January 7, 2010, five days after the robbery, Danielle Wilson
contacted CPD about the robbery, and Detective Ishikawa spoke with her at the
Vallejo apartment she shared with Fraser.
In a back room, Ishikawa and Officer Greg Pardella found a soft guitar
case containing a shotgun with a chambered shell, plus a pouch holding another
20 shells. The gun and case were
consistent with those in the video surveillance, and Wilson, when shown stills
from that surveillance, quickly and very positively identified Fraser and Olesh
(“Corey and Jeff†to her).
Later
that day, the officers arrested Fraser at his workplace, an Oakland hardware
store. Hanging in the break room were
his blue sweatshirt with white stripes, and a gray “beanie,†both consistent
with those worn by the gunman in the surveillance video. His Honda, parked nearby, had more shotgun
shells, on the floorboard behind the driver’s seat, and had a blue bandanna on
the front passenger seat.
Late
that same afternoon, Olesh was arrested as he used a key to enter his Concord
apartment. He was with Amanda
Torres. The arresting officer noticed
that, while Olesh carried a bottle of prescription OxyContin, he had not
evinced any disability in walking some 100 feet to the apartment door and did
not complain of pain. Officers found, on
a table in his bedroom, a large fixed-blade knife in a sheath.
Wilson
recounted at trial the events surrounding the January 2 robbery, using parts of
interviews she had with officers soon after the event to refresh her recollection
on many points. She was in a romantic
relationship with Fraser that, she said, was “a little bit worse than just ‘on
the rocks,’ †but shared a room with him at his Vallejo address. Fraser kept the shotgun and the guitar case
in their room. Sometime after dark the
night of the robbery Fraser drove her to a get-together at Olesh’s apartment,
which was next door to the Days Inn.
Wilson drank vodka with cranberry juice while at the apartment, but
remained coherent, not drunk. She did
not know any of the several other people there except for Fraser, Olesh and
Torres. Olesh and Fraser talked at some
point about a Valero gas station situated on a corner across the street from
the apartment. Wilson heard Olesh direct
Torres to go see when it closed, and saw Torres leave the apartment. Torres returned, and when she left again,
this time with Olesh and Fraser, Wilson followed her out onto the patio, not
wanting to be alone inside with people she did not know. Fraser had the guitar case in his hands, and
while she never actually saw the shotgun, it was inside the case.
Olesh
and Fraser walked off in the direction of the gas station. Olesh wore a khaki-colored (“lighter khakiâ€)
jacket with black trim, and perhaps cowboy boots, and Fraser wore a black or
blue sweatshirt with white stripes and lettering, a jacket that was a Christmas
gift from his aunt that Wilson had seen him open. The men returned 15 to 30 minutes later,
Olesh arriving first and handing his khaki jacket to Wilson over a tall fence enclosing
the patio area before coming over the fence himself. He told the women to go inside and that he
and Fraser would be in shortly. (Wilson
told Detective Ishikawa that this took place around 11:40 p.m. and that Olesh,
at the fence, handed her a knife as well as the jacket.)
A
couple minutes later, Wilson saw Olesh inside, and then Fraser, who still wore
the sweatshirt and may have come in through the front door. She was glad to see Fraser back, having
worried about him, but sensed that “something obviously wasn’t right.†She went to Olesh’s room, where he and
Fraser, and then Torres, had gone, and she heard the men conversing. One said, “We rob this bitch for only $19,â€
and both men were “pretty pissed.â€
Fraser pulled a wad of money from his pocket, uncrumpled and counted it,
and the men “divvied it up†between them.
Wilson, shocked, took Fraser aside and said something like, “What the
fuck happened, like what went on[?]â€
Then when Fraser went into the bathroom, she confronted Olesh and asked,
“What the ‘F’ did you guys do?†Olesh
said, “[W]e only got fucking $19 out [of] it,†and Wilson retorted, “Was it
really worth it?â€
Wilson
wound up staying overnight at the apartment, after failing to persuade people
she phoned to come and pick her up. Half
an hour or more after the bedroom conversation, she heard that there were cops
out front, and saw them herself in the Days Inn parking lot. She saw a purple bandanna at the apartment
that night and noted in testimony that Fraser had long hair at the time and
wore bandannas off and on. Somewhere
inside the apartment she also saw a cowboy hat, not worn by Olesh but maybe
being held by his roommate, Scott, who tended to dress like a cowboy.
Wilson
was reluctant to come forward until motivated to contact the police by a talk
she had with her father. She identified
Olesh and Fraser from still photos Detective Ishikawa showed her within a week
of the robbery. Identifying the photos
again at trial, she explained as to Fraser:
“Corey always wore glasses, that’s his sweatshirt that he loved, that’s
his big choppy sideburns he used to have.â€
She explained as to Olesh:
“That’s the jacket that I was referring to . . . . [T]hat’s how I knew it was him.†She confirmed that no one else at the party
that night had a khaki jacket like Olesh’s or a blue sweatshirt like Fraser’s,
and said that the cowboy hat Olesh wore in the photo appeared to be the hat she
saw that night in the apartment. She did
not see the men “gear up†that night.
Wilson
spoke with CPD officers on January 7 and 8, 2010, and the latter date involved
Detectives Ishikawa and Jason Smith picking her up that evening from a San
Francisco hotel, driving her out to the CPD in Concord, and there recording a
“pretext†phone call she made to Torres.
A tape recording and transcript of the call were in evidence at the
preliminary hearing, during testimony by Torres. At trial, Torres was an unavailable witness,
but jurors heard the tape and viewed the transcript during the reading of
Torres’s preliminary hearing testimony.
The
call was made on the evening of January 8th, after Fraser and Olesh had been
taken into custody. Ishikawa guided her
beforehand on subjects to cover and recorded the call, but Wilson did not reveal
that to Torres, or that she was calling from the police station. Wilson conveyed a needy insecurity, fear of
what police detectives knew, tension from pressure she felt from them,
apprehension about what to tell them and what Torres had already said or would
say, and concern that detectives not find physical evidence tying Olesh and
Fraser to the robbery. Torres was
guarded about talking about this on the phone, saying her mother had warned her
that police could be listening (“[s]o that’s why I’m just being carefulâ€), and
cautioned, “Danielle, why are you talking about this over the phone with me?â€
and “this alone could fucking get them arrested.†Yet she seemingly tried to allay Wilson’s
fears until they could meet or talk the next day. She said she had been shown pictures of
Fraser “holding the shotgun,†but said Olesh was “all covered.†She said the detectives “don’t know shit,â€
and were faking knowledge to harass Wilson or break her down. Wilson sometimes primed the conversation with
details of the evening and robbery, obviously trying to draw Torres out. Torres acknowledged few details but did imply
that she knew the men had committed the robbery, and assured Wilson variously
that evidence had been “burned†or “disposed of,†was “gone,†was “gone
forever,†or just told her, “don’t worry about it.†Torres also alluded several times to having
had dental surgery, mentioning taking “Percocets†for having her “wisdom teeth
out,†saying, “I have these gross ass gauze things in my mouth,†and complaining
toward the end, “My wisdom teeth are fucking (unintelligible) right now.â€
To
Wilson’s concerns about what Torres might have said, Torres assured, “I didn’t
tell them anything,†adding: “But what I
said was [Jeff and I] were fighting all night so we were barely talking. And . . . I was kind of
jealous. I didn’t want him talking to
any other girls ‘cause I—like we were fighting and stuff. I was kind of watching him. Like, I never noticed him leave for more than
five minutes at the back door to have a cigarette.†[¶] . . .
I know Jeff went to Safeway. He went
probably around like 8:30 to 9:00. He
was back in no longer than ten minutes.
And the robbery didn’t happen till 11:45.†To Wilson’s protest that the story was too
complicated to remember, Torres said:
“Well, we can’t have the same story anyway. So you don’t need to know anything about me
and Jeff. All you need to know is what
happened with you and Corey. You need to
tell them you guys have been off and on since New Years, you guys broke up, you
guys are trying—you guys are trying to work things out. She urged Wilson just to “say you don’t know
anythingâ€. “They have a witness—they
have a witness seeing them in the hotel and leaving the hotel and running in
different directions. That’s it.†By answering “Yeah†to Wilson’s musing that
the men had traumatized them and the victim all for a “measly†$19, Torres
arguably admitted knowing the amount.
She offered that Fraser perhaps had been trying to “protect†Wilson,
saying: “I know that like he was broke
and couldn’t pay his bills. And Jeff
didn’t have any money to give him.â€
Wilson
then pressed: “Everything that happened
that night, we both know. We’re gonna
pinky promise we will not tell anybody that we know that Jeff and Corey did
what they did. Pinky promise me.†“I pinkie promise,†Torres said, adding, “I’m
not throwing you under the bus.†Wilson
urged: “We need to have the pact that we
know that they did it but we’re not gonna say anything. Promise me that right now.†Torres reassured: “We have a pact. We have a fucking pact. I promise you.†Asked about the photos, Torres said: “They just showed me the ones of Jeff. And you couldn’t see Jeff. [¶] I saw a little bit of Corey from far
away. It looked like (unintelligible).†She warned, “They’re on you, like watching
you like a hawk,†and advised Wilson not to carry drugs, or they would use the
threat of custody to increase pressures on her.
She also cautioned: “Anything you
can, be honest about. That’s what I’m
saying. Like, ‘cause if they find a
little fucking tiny lie, they’re gonna think you’re lying about everything.
[¶] So like, I fucked myself over by saying my car was fucking at home,
you know? So now they think I’m lying
about everything.â€
Torres’s testimony at the preliminary hearing, 10 months
after the pretext call, was in part an exercise in studied denial as to
anything she had said in the call. A
grant of immunity overrode her privilege against self-incrimination; but she
still considered herself Olesh’s girlfriend; and his parents were in the
courtroom. Her repeated claims of memory
lapse, despite use of the call to refresh recollection, led the court to
declare her a hostile witness and allow use of the call as prior inconsistent
statements for “the non-hearsay purpose†of impeachment. At trial, the court instructed that jurors
could use the call statements to assess the credibility of her prior testimony,
and, to the limited extent that they found she spoke from personal knowledge of
a defendant’s acts or statements, for the truth of matters.
The preliminary hearing transcript was read in some
length at trial, with trial counsel on each side lodging objections for the
trial court’s rulings. Torres acknowledged
being Olesh’s girlfriend on the night of the robbery, “hanging out†with him
that day, attending the party with him that night at his apartment, Fraser and
his girlfriend Danielle (Wilson) showing up, plus others, and days later
getting the call from Wilson, the night after Olesh was arrested and Torres
herself had spoken with police.
Her account of the party was that she and Olesh were
fighting, and she was upset, probably about other girls. She stayed the whole evening except for
walking once to the store and back, drank vodka, was drunk, probably passing
out at the end of the night, and then stayed overnight. Being upset, she went to Olesh’s bedroom for
awhile and so did not see both men the whole time, but she only recalled them
leaving the apartment together once, for about 10 minutes toward the start of
the party, to buy alcohol. There were
only periods of about five minutes where she did not see Olesh, but she did not
pay as close attention to what Fraser did.
Olesh wore blue jeans, turquoise shoes, a black “Fox†sweatshirt she had
gotten him for Christmas, and a black baseball hat. She did not recall what Fraser wore. She did not recall anyone wearing a beanie,
cowboy hat, or a sweater of the kind seen in the robbery surveillance video,
and she thought she would have remembered a cowboy hat. Olesh and Fraser were still there at the end
of the party, at midnight, and neither one spoke about a robbery. She remembered seeing cops outside later that
night.
As
for the recorded phone call with Wilson, Torres generally, but inconsistently,
denied recalling anything she said in the call.
This was despite having completely read and listened to the call before
the preliminary hearing, and then, at the hearing, read parts of the transcript
again to try and refresh her recollection.
She recalled speaking a couple of times with Wilson after their
boyfriends were arrested, and confirmed that it was her voice on the tape, but
claimed no memory of what she “ ‘actually said.’ †In fact, she “ ‘didn’t really remember
that day.’ †She attributed her
failed memory to the passage of time, and to having had her wisdom teeth
removed that morning. She said she was
on medication afterward, had gone back to sleep when she got home, and was
awakened by the call. “ ‘Yeah I
guess,’ †she answered, when asked if she was “ ‘too high to
remember’ †it. On the other hand,
she did recall not wanting to talk to Wilson about the robbery over the phone
due to concern that police were listening in on the conversation. “ ‘I was listening to my mom,’ â€
she said, who had advised her not to talk on the phone because police might be
listening in. She also claimed that she
was not concerned about implicating her boyfriend and that her not wanting to
talk with Wilson over the phone was:
“ ‘Just because I wanted to meet up with her. We were both upset over our boyfriends, and I
wanted to meet with her.’ †Her
testimony was internally inconsistent, as where she explained: “ ‘I mean, since I saw [the transcript
of the call], I remember bits and pieces; but I don’t remember saying any of
it.’ †The trial court, soon after
that jumble, answered a defense objection that Torres had “no personal
knowledge†with: “A person can be
impeached by ‘I don’t remember.’
Overruled.â€
When
asked next whether she recalled telling Wilson she had lied to the police,
Torres first answered “No†but then was able to elaborate after reading the
call transcript: “I know what you’re
talking about now. What I was talking
about—yeah, when they arrested Jeff, I lied about where my car was because I
was scared and I left.†She said she was
referring to police asking her to wait in her car until they could take her
statement; after 10 minutes, however, she “ ‘got scared’ †and drove
off to a store parking lot and lied to them by telling them she had gone
home. In follow-up questions about why
she was scared to speak “ ‘ the truth’ †to police and say Olesh was
with her the whole night and did nothing, Torres said she was
“ ‘upset’ †because of Olesh’s arrest and “ ‘needed time to cool
down.’ â€
Torres
then tried to distance herself from the “ ‘pinkie promise’ †to
Wilson not to tell what they knew. Asked
if she made the pinkie promise, she first said:
“ ‘No. I was just trying to
calm her down.’ †Then she
double-waffled, saying “ ‘Yes, I said that,’ †and then ,“ ‘I
just don’t remember actually saying that.’ †Asked next if she told Wilson that she saw
surveillance pictures of Corey (Fraser) holding a shotgun, Torres replied, “I
think I said something like, they showed me pictures,’ †but then added,
“ ‘I can’t say I remember saying it’ †and that the call would not
refresh her recollection. Then she
answered “No†when asked if she remembered asking Wilson where evidence from
the case was, again saying her recollection would not be refreshed by the
call. She also did not recall telling
Wilson she had seen pictures of the robbery and that both defendants’ faces
were covered. At this point in the trial
reading, the court allowed a tape of the call to be played for the jury, over
objection by Olesh’s counsel that it was “improper impeachment.â€
After
the playing of the tape, Torres was asked if she ever burned any of the
evidence, and she said no. Asked, then,
why she said that on the tape, she said, “ ‘I didn’t say that’ â€
then, inconsistently, that she did not remember the conversation due to her
medication. Asked similarly whether
Olesh told her to “ ‘lace up’ †her story and, upon her denial, why
she said so on the tape, Torres offered:
“ ‘I said yes and no to every question, but I don’t remember. So I don’t know.’ †Asked to explain, she said: “ ‘Every question she asked me I’m like,
Yes, No, Yes, No, Yes, No, Yes, No.
Honestly, I don’t remember from the day it happened.’ †This triggered inquiry into just what Torres
did remember from the phone conversation, and elicited a broad denial that she
remembered anything. Her denial, of
course, contradicted her earlier testimony about various details of the call.
Neither codefendant testified, but Olesh presented alibi
witness Gaelan Shields, who described himself as a friend who did not want to
see Olesh convicted of any crime. He
also claimed to be less close a friend to Fraser yet “more than an
acquaintance.†Shields said he was at
Olesh’s place the entire time from about 8:00 p.m. to 2:30 a.m., to “hang outâ€
with Olesh, that Olesh wore blue jeans and a darker blue T-shirt and no cowboy
hat, that he left only for about 15 minutes at 9:00 p.m. (returning with
alcohol and cigarettes), and that the only other time Olesh was out of sight
was for 45 minutes to an hour when he went into his room with Torres.
In contrast to his certainty about what Olesh did and
wore that night, Shields remembered little beyond there being eight to 15
people throughout the evening, drinking eight or nine beers but not being
tipsy, and calling two women friends that night who joined him there. He did not recall when the women arrived or
left, who they were, or what they looked like.
Despite knowing of Olesh’s arrest for the robbery since the month it
occurred, Shields never came forward with his information until trial.
Olesh also called a police officer to testify that her
trained German shepherd picked up a scent of some kind at the robbery scene
(which was rife with contaminating scents), and followed it through the
apartment complex, but lost it a couple of streets away. Another officer related that the victim,
Dwinell, who was shaken by the robbery and said she thought she was going to die,
said she estimated the value of the uncounted money taken in the robbery was
$50 to $60.
Detective Ishikawa, recalled by the defense to further
discuss his interviews with Wilson, said she never mentioned there being black
trim on the jacket or a knife present in the apartment. She also did not mention, in her pretext call
to Torres or her initial statements
on the ride from San Francisco, anything about the Valero gas station. (Ishikawa explained that it was difficult for
him to direct or inject himself into the “free flowing conversation†of the
pretext call and that Wilson “didn’t go there with it.â€) Wilson also said in her initial statements,
when asked about the guitar case and shotgun, something like, “ ‘No,
that’s the thing, I didn’t see him the whole night with it[.]’ †Later, however, she said she saw Fraser with
the case (the gun being inside). She had
also said initially that she was drinking vodka, but without mentioning mixing
it with cranberry juice, and did not mention what Olesh wore when he emerged
with Fraser from his room. Wilson had
also read an article about the robbery online, and described a cowboy hat but
then, after seeing still shots of the robbery video, said that she (or the
article) had gotten the color of the hat wrong.
III.
DISCUSSION
A. Confrontation
Issues as to Preliminary Hearing Testimony and Pretext Call
Olesh
claims that the admission at trial of Torres’s preliminary hearing testimony
and statements from the pretext call violated Evidence Code section 1291
and his Sixth Amendment right to confront witnesses as established by
36 (Crawford). Neither claim has merit.
“A criminal defendant has a constitutionally guaranteed
right to confront and cross-examine the witnesses against him or her. [Citations.]
The right of confrontation is not absolute, however, and may ‘in
appropriate cases’ bow to other legitimate interests in the criminal trial process. [Citations.]
An exception to the confrontation requirement exists where the witness
is unavailable, has given testimony at a previous judicial proceeding against
the same defendant, and was subject to cross-examination by that
defendant. [Citations.]
“California permits the use of the prior testimony of a
witness against a criminal defendant only when the unavailability of the
witness and the reliability of the testimony are established. [Citation.] . . .
[Citation.] The testimony is deemed
reliable if ‘[t]he party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and
motive similar to that which he has at the hearing.’ (Evid. Code, § 1291, subd. (a)(2).)
“ ‘. . . [T]he “admission of the
former testimony of an unavailable witness is permitted
under . . . section 1291 and does not offend the confrontation
clauses of the federal or state Constitution—not because the opportunity to
cross-examine the witness at the preliminary hearing is considered an exact
substitute for the right of confrontation at trial [citation], but because the
interests of justice are deemed served by a balancing of the defendant’s right
to effective cross-examination against the public’s interest in effective
prosecution.†. . . [A] defendant’s motive in cross-examining a
witness at a preliminary hearing may differ somewhat from the motive at trial,
but nevertheless the earlier testimony may be admissible at the trial under
section 1291 because the “motives need not be identical, only
‘similar.’ â€
[Citations.]’ †(
1172-1173 (Carter).)
Olesh
does not challenge the court’s finding that Torres was unavailable, a finding
based on numerous attempts to serve her, locally and at locations in Southern
California, and on a conclusion that she remained Olesh’s girlfriend and was
“hiding herself.†Olesh also does not
dispute that his counsel, Roberta Brooks, who was also his trial counsel, in
fact exercised the opportunity to confront and cross-examine Torres at the
preliminary hearing. What he argues,
rather, is that his interest and motive in cross-examining Torres at the
preliminary hearing were too dissimilar to satisfy the Sixth Amendment or
section 1291. He is unpersuasive.
Olesh
cites a constant in this situation, that a defendant’s interest and motive in
confronting an adverse witness at a preliminary
hearing differs because the degree of proof is less for a holding order
than for a criminal conviction. However,
since the admission of preliminary hearing testimony is “ ‘routinely
allowed’ †without offending statutory and constitutional rights (
303), the differing standard of proof is clearly not enough, alone, to
constitute error. A court looks for a
similar, not identical, interest and motive.
To paraphrase one case example, Olesh’s “interest and motive in
cross-examining [Torres] at the preliminary hearing were similar to those at
trial: to challenge [her] credibility
and discredit [her] account of the [events].â€
(People v. Harris (2005) 37
Cal.4th 310, 333.)
Olesh urges that things were significantly different here
because of “[t]he nature of†Torres’s testimony. At the preliminary hearing, she gave an
account that was “largely favorable†to him, thus assertedly leaving “no
motive†to vigorously cross-examine her.
At trial, by contrast, he stressed that the most damning witness against
him was Wilson, who had not testified at the preliminary hearing, and asserts
that this elevated Torres’s account to corroboration for Wilson’s.
Olesh makes too much of Wilson being absent from the
prior hearing, for her account was indeed in evidence at that hearing. Detective Ishikawa related in detail the
various interview statements she gave, and Olesh makes no claim that those
statements conflicted significantly with how they would be presented at trial,
where Wilson testified personally.
California law allows hearsay testimony to come into evidence at a
preliminary hearing through the testimony of an officer specially trained in
relating such hearsay. This hearsay
recounting of victim statements at the preliminary hearing is well established
(Correa v. Superior Court (2002)
27 Cal.4th 444, 464-466 [approving officer relation of translated
statements]), and here Brooks vigorously cross-examined the detective about
Wilson’s statements without apparent limitation by the court. Thus, the use of Torres’s account as
corroboration for Wilson’s stronger account was not significantly different at
the preliminary hearing than it would be at trial. Brooks presumably anticipated that Wilson’s
account would be related by an officer rather than Wilson herself (§ 1203.1;
Pen. Code, § 872), and nothing indicates that counsel expected her to be
unavailable for trial. Thus, Olesh had
reason to cross-examine Torres fully about any parts of her testimony that
corroborated Wilson’s account. Brooks in
fact did so, eliciting that her poor recollection was due to sleepiness, after
general anesthesia that morning to have all four wisdom teeth extracted, and
then taking probably four pain pills (perhaps Vicodin and a second drug). Brooks also elicited testimony of a strained
relationship between Torres and Wilson.
Wilson was nice to her but did not like her, Torres said, and created a
lot of “drama†between herself and Olesh.
Wilson was also “nice to Jeff’s face†but “would make up rumors.†Brooks seemingly pulled no punches at the
preliminary hearing and, again, was not evidently limited there by the judge.
But
Olesh focuses on the recorded call, urging that his motive and interest was
rendered too dissimilar because it was admitted at the preliminary hearing only
for the non-hearsay purpose of impeaching Torres whereas, at trial, it was
further admitted for the truth of matters to the extent that jurors might find
that Torres spoke from personal observation of acts or statements by a
defendant (fn. 3, ante). Olesh calls this difference a
“bait-and-switch†that effected a “blind-siding of defense counsel†on the need
to cross-examine Torres about the truth of her call statements.
We
disagree and find little analogy in the case law examples of dissimilarity
Olesh cites. The prior proceeding here
was not a suppression hearing where an informant’s credibility was explored
only in the limited context of whether police officers reasonably relied on his
account (People v. Sanders (1995) 11
Cal.4th 475, 525-526 [pre-Crawford,
court did not abuse its discretion in denying use of the prior testimony]) or a
preliminary hearing where evidence was admitted only against a codefendant (
572-573 [pre-Crawford, competent
counsel would have objected based on § 1291, subd. (a)]). The fundamental issue in both of these
proceedings was whether Olesh was one of the robbers, and Torres’ statements to
Wilson in the pretext call went directly to that issue, whether taken as true
or just used to impeach Torres’s exculpatory testimony. In both proceedings, the prosecution was
using the call to show that Torres was covering up for Olesh in her preliminary
hearing testimony.
title="">[5]
Olesh
contends that, had he known at the preliminary hearing that the truth of
Torres’s call statements was at issue, his counsel could have tried to pin
Torres down on what parts of her statements “were based on her own observations
or Olesh’s statements versus unsupported assumptions, speculation, or
third-party hearsay,†and thus perhaps limited or foreclosed all potential use
of statements for their truth. On this
record, however, this argument seems more theoretical than practical. Olesh is vague about what potentially “trueâ€
facts he has in mind. He alludes to
suggestions by Torres, in response to Wilson’s urgent and repeated requests for
assurance, that any incriminating evidence had been disposed of, or even
burned. But if we imagine a scenario
where the judge at the preliminary hearing had, like the trial judge, ruled to
admit some of her statements for their truth, it is hard to say how defense
counsel Brooks would have accomplished a sorting out of assumptions versus
personal knowledge beyond what Torres had already said. We have already set out her testimony at
length (pt. II.E., ante). To broadly summarize, Torres had started out
by repeatedly disclaiming memory of her statements in the call, despite
attempts to refresh her recollection with the transcript, only to turn around
and explain, inconsistently, what she meant by some of those statements. Then, late in the direct examination,
prosecutor Walpole carefully probed Torres about what exactly she did remember
saying in the call. Torres responded by
denying memory of any statements at all (fn. 4, ante), and this was right after inconsistently saying, when probed
about whether Olesh asked her to lace up her story: “ ‘I said yes and no to every question,
but I don’t remember. So I don’t
know.’ †“ ‘Every question
[Wilson] asked me I’m like, Yes, No, Yes, No, Yes, No, Yes, No. Honestly, I don’t remember from the day it
happened.’ â€
It
is with that testimony in place that defense counsel Brooks stepped up to
cross-examine Torres. One may argue that
Torres’s denials were not fully credible, given the waffling she had done, but
Brooks surely saw her denials as benefitting the defense. It is interesting, in fact, that Brooks chose
at trial to let the reading of the
preliminary hearing testimony end shortly after those denials, reading from her
cross-examination only one small part that reinforced Torres’s earlier statement
on direct (made without reference to the call) that Olesh had never told her to
“ ‘lace up’ †her story. The
perplexing question is how Brooks would have gone about eliciting denials of
personal knowledge about things Torres said in the call when Torres had just
emphatically denied recalling anything. It would have been a dicey exercise, and one
that risked provoking the prosecutor to explore the subject further, via
redirect examination. (Cf.
704, 747.)
While
we are not specifically guided by Olesh as to how his counsel might have
proceeded had the broader admissibility ruling of trial been in place at the
preliminary hearing, we are confident that there was no confrontation right
violation. Although the call statements
had been admitted only for impeachment, not their truth, Olesh had every reason
at the preliminary hearing to explore their bases with Torres on
cross-examination, in order to rehabilitate her otherwise exculpatory account. Of course, this had already been accomplished
in part by the prosecutor eliciting from Torres that she was just saying yes or
no to placate Wilson—not to admit anything Wilson suggested. The fact that Brooks opted at that point to
let the record stand essentially as it was appears to reflect a tactical
decision, not a lack of motive or interest in having Torres deny any foundation
for whatever her call responses might otherwise suggest. “ ‘[A]s long as a
defendant was provided the opportunity
for cross-examination, the admission of preliminary hearing testimony under
. . . section 1291 does not offend the confrontation clause of the
federal Constitution simply because the defendant did not conduct a particular
form of cross-examination that in hindsight might have been more
effective.’ [Citations.]†(Carter,
supra, 36 Cal.4th at
pp. 1173-1174, italics added.)
B. Foundation, Undue Prejudice, and Due
Process Regarding the Pretext Call
Olesh
separately attacks admission of the pretext call as lacking a foundation of
personal knowledge by Torres and Wilson for some of their statements
(§ 702, subd. (a)), as containing statements by both women that he deems
unduly prejudicial (§ 352), and as rendering his trial fundamentally
unfair, denying him federal due process (U.S. Const., 5th & 14th
Amends.). He raised the foundation and
undue prejudice arguments below and, while not having raised a due process
claim there, may do so on appeal to the narrow extent that he urges that the
consequence of the errors he did raise was so serious as to violate due
process. (People v. Partida (2005) 37 Cal.4th 428, 435-436.)
“To testify, a witness must have personal knowledge of
the subject matter of the testimony, i.e., ‘a present recollection of an
impression derived from the exercise of the witness’ own senses.’ [Citations.]â€
(People v. Lewis (2001) 26
Cal.4th 334, 356 (Lewis). “[T]he personal knowledge of a witness
concerning the subject matter of his [or her] testimony†is a preliminary fact
(§ 403, subd. (a)(2)), thus placing on the proponent of the proffered
evidence “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 . . .†(§ 403, subd. (a)). The issue typically arises in the case law
when there is a challenge to the witness’s capacity to perceive and recollect,
and our Supreme Court has held, in that context that, in a jury trial, a trial
court “should allow a witness’s testimony unless ‘no jury could reasonably find
that he has such [personal] knowledge.â€
(Lewis, supra, at p. 356.) “A
witness’s uncertainty about his or her recollection of events does not preclude
admitting his or her testimony. (
492 [uncertainty of recollection goes to the weight and not admissibility of a
witness’s testimony].)†(
525; People v. Montoya (2007) 149
Cal.App.4th 1139, 1150.)
Olesh
resists applying that analysis to personal knowledge where capacity to perceive
and recollect are not at issue. We do
not. Whether a witness has personal
knowledge of what she speaks can rest in whole or part upon her own testimony (§ 702, subd. (b)), which, as here, may be
inconsistent, unclear or evasive, requiring resolution by a trier of fact. The statute speaks of “personal knowledge,â€
not just its capacity component, as being a preliminary fact for this purpose (§ 403, subd. (a)(2)), and directs the trial
court, where proffered evidence has been conditionally admitted, to “instruct
the jury to disregard [it] if the court subsequently determines that a jury
could not reasonably find that the preliminary fact exists.†(Id., subd. (c)(2).)
“Unlike in other situations[, like the competence of a witness under
sections 402 and 405], under . . . section 403, ‘[t]he
preliminary fact questions listed in subdivision (a) . . . 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
jury’s function to determine the effect and value of the evidence addressed to
it. . . . [T]he judge’s
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 (1995) 12 Cal.4th 415, 466-467 (Lucas).) Protection for an
adverse party comes from the court’s authority (or duty upon request) to
“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†(§ 403, subd. (c)(1)), instruction which was given here
(fn. 3, ante). Nor does Olesh persuade us that a different
analysis should apply where the witness is unavailable to cross-examine at
trial. Personal knowledge, like
confrontation, does promote reliability of the evidence (People v. Valencia (2006) 146 Cal.App.4th 92, 103-104), but
confrontation issues involve distinct criteria.
We have applied those criteria and found no confrontation error from the
call’s admission (pt. III.A., ante);
we are aware of no authority altering the analysis of personal knowledge
questions where the witness in question happens to be unavailable for
trial. Thus, under settled law,
“ ‘[T]he court may exclude the testimony of a witness for lack of personal
knowledge only if no jury could reasonably find that [s]he has such
knowledge’ †(People v. Anderson
(2001) 25 Cal.4th 543, 573-574, italics omitted), and “[t]he decision whether the
foundational evidence is sufficiently substantial is a matter within the
court’s discretion. [Citations.]†(Lucas,
supra, 12 Cal.4th at p. 466.)
Olesh’s
claim of error focuses mainly on uncertainty about Torres’s personal knowledge
that any evidence from the robbery was destroyed, and his underlying concern is
the standard jury instruction given below on drawing guilt inferences from
attempts to conceal or destroy evidence.
reactions to urgent inquiries from Wilson about whether there was any evidence
for the police to find. Torres never
directly identified herself or anyone else in particular as having disposed of
evidence, but she did repeatedly assure Wilson that there was no such evidence,
saying, “don’t worry about it,†that “[e]verything’s taken care of,†or that it
was “gone,†“gone forever,†“disposed of,†or, as she said the last time,
“burned.†When asked with seeming
reference to “Jeff†(Olesh), “When he destroyed the evidence, your hands were
not on any of those clothes, right?†Torres replied, “No, I didn’t do anything
with any of his stuff.†Olesh urges
that, even if one discredits Torres’s flat denials at the preliminary hearing
of hearing about the robbery from either defendant, or burning evidence or
saying that she did, one cannot tell from her call statements whether she had
personal knowledge of destruction attempts, was relating something she took
part in herself, or had just heard about it from Olesh, Fraser, or others. A jury could also believe, as she suggested
in testimony, that she was just saying things to placate Wilson. The Attorney General counters, albeit more
broadly than as to statements about destroyed evidence: “When heard in context, the statements [that]
Torres makes during the pretext phone call support the conclusion that she was
speaking about events that she personally witnessed. Thus, the trial court did not err in
admitting the recording.â€
In
our view, the parties misframe the issue as error or lack thereof in
statement about disposing of evidence.
Our reading of the record is that the court specifically ruled to
statements. As the parties are aware,
there was a nearly 25-page discussion about this and other aspects of the call
statements during the settling of instructions, and the court took the view
that there was insufficient evidence of personal knowledge to use Torres’s call
statements on that point for their truth, as opposed to impeaching her preliminary
hearing testimony denying knowledge of the codefendants’ involvement in the
robbery. In the course of that
discussion, the court articulated most of the same concerns Olesh now presents
on appeal and, at one point rejecting prosecutor Chad Mahalich’s argument that
one would have to imply that Torres “was either there or Mr. Olesh told her or
both,†the court responded, “ . . . I think this situation about
the burning is just too far removed.†To
implement the ruling, the court limited Mahalich to arguing to the jury just
two areas of the call statements for their truth, both being areas where
personal knowledge was more strongly apparent.
One was Torres saying she had recognized both codefendants from surveillance
still photos, and the other was her saying, or at least implying, that she knew
they got only $19 in the heist. The
court ruled: “I’m going to let [him]
argue those two portions of the tape as establishing facts, and I’m going to
reword [CALCRIM No.] 319 in a way to caution the jury to be careful [that] the
statement has sufficient credibility to it that she has personal knowledge.â€
instruction (see fn. 3, ante), and
the prosecutor, as the Attorney General observes, did limit his jury argument
to those two areas.
title="">[8]
The
parties differ as to the effect of the court’s limitation: the Attorney General implicitly views it as
resolving the problem, but Olesh does not. Olesh has the better argument. Nothing in the court’s instructions, or the
prosecutor’s argument on those two points, advised the jury that no other
statements could be used for their truth, and CALCRIM No. 371 actually informed
them that they could use the truth of
the evidence-destruction statements to infer consciousness of guilt if they
found that a defendant was present or authorized the act. (Fn. 7, ante.) Our Supreme Court has noted, in the context
of examining a trial record for substantial evidence, that “the prosecutor’s
argument is not evidence and the theories suggested are not the exclusive
theories that may be considered by the jury.â€
(People v. Perez (1992) 2
Cal.4th 1117, 1126.)
Thus
the error in this case, if any, was not in the ruling denying use of the statements for their truth, but in failure to
convey a limitation to that effect in the instructions. This is turn raises a serious question of
forfeiture, for Olesh does not appear to have requested an appropriate limiting
instruction following the ruling limiting the prosecutor’s jury argument. Generally, “although a court should give a
limiting instruction on request, it has no sua sponte duty to give one. [Citations.]â€
(People v. Hernandez (2004) 33
Cal.4th 1040, 1051, and cases cited therein; § 355.) The parties, who miscast the issue as error
in the ruling rather than inadequate instruction, have not briefed the
forfeiture issue. Rather than delay
resolution of the appeal with a request for further briefing, we opt to assume
without deciding, and purely for sake of discussion, that there was
instructional error and that it is cognizable.
That
brings us to prejudice from failure to instruct the jury that it could not use
any destruction-of-evidence statement for its truth. We find virtually none. It was reasonable to infer that Torres spoke
from personal knowledge when she told Wilson that evidence was gone, taken care
of, or burned, but instructions on using that evidence as true and against a
defendant mandated, under a tailored CALCRIM No. 318: “[I]f you find that from the statement or
testimony it appears that Amanda Torres personally observed
and only in that instance, you may use the statement as evidence that the
earlier statement is true.†(Fn. 3, ante,
italics added.) Further, CALCRIM No. 371
told jurors that they could conclude from destroyed evidence that a defendant
was aware of his guilt “only if the defendant was present and knew about the
conduct . . . or if not present, authorized the other person’s
actions.†(Fn. 7, ante.) Olesh’s vigorous arguments
now that such conclusions are unsupported is a concession against prejudice,
because a bedrock presumption for us on appeal is that jurors understand and
follow instructions. (
725; People v. Mickey (1991) 54 Cal.3d
612, 689, fn. 17.) Nothing in this
record rebuts that presumption.
But
even accepting that a reasonable inference might weakly support Torres basing
her statements on an act or statement of Olesh or that he was present or
authorized actions by her, the key to this case was the credibility of
Wilson. We have set out her account in
detail (pt. II.C., ante), but to
summarize: she was Fraser’s girlfriend,
knew both codefendants, and came forward days after the robbery to readily
identify both from surveillance stills, and led police to the loaded shotgun
and guitar case Fraser kept in their room at his Vallejo residence. She placed both men at Olesh’s apartment next
to the Days Inn on the evening of the robbery, and saw Fraser that night with
the guitar case that held his shotgun.
She identified the men as wearing clothing seen on the surveillance
video, reported seeing the cowboy hat in the apartment that night (albeit
getting the color wrong), knew the men had left for 15 to 20 minutes right
around the time of the robbery, and reported that when they returned, Olesh
handed her his light khaki jacket and a knife over the fence before leaping
over himself. She heard the men talking
in a miffed tone about getting only $19 and confronted Olesh about what they
had done. Her tip to police led to the
arrest of Fraser at work, where he had his distinctive blue jacket and his
beanie with him. It is hard to imagine
that erroneous consideration of Torres’s statements about evidence destruction,
if considered for their truth and involving Olesh, had any effect on the jury’s
view of Wilson’s credibility. In fact,
Wilson’s cooperation with police was the reason the call took place and was
surely viewed by the jury as boosting her credibility. It is not reasonably probable that, absent
the erroneous failure to disallow jury use of the truth of the
evidence-destruction statements, the result would have been more favorable to
Olesh. (People v. Watson (1956) 46 Cal.2d 818, 836.) We are also confident that the error did not
render this trial fundamentally unfair so as to rise to the level of federal
due process error. Even if it had, the
error would appear to be harmless beyond a reasonable doubt based on the full
record. (Chapman v. California (1963)
386 U.S. 18, 24.)
Olesh
also attacks, as lacking a foundation of personal knowledge (§ 702), call statements by Wilson. He cites her telling
Torres the following things: “ ‘We
know they robbed the fucking place. Get
real.’ †“ ‘Because the thing
is, is Corey told me it was all Jeff and Jeff told me it was all
Corey.’ †“ ‘Yeah. 19 bucks, yeah. And they traumatized somebody now for their
whole life. And now they traumatized me
and you.’ †Olesh reasons, as to
the robbery and the amount taken, that Wilson must have relied to some extent
on statements by the codefendants and, as to the traumatization, that there is
no evidence that the victim was traumatized for life. Then building on those arguments, Olesh
claims error in not excluding those statements under section 352, urging that
lack of foundation left the statements with little or no probative value and
substantially greater risk of undue prejudice.
Section 352 “gives the trial court discretion to ‘exclude evidence if
its probative value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue
prejudice’ †(People v. Thomas
(2012) 53 Cal.4th 771, 806), and “ ‘the “prejudice†referred to
in . . . section 352 [characterizes] evidence that uniquely
tends to evoke an emotional bias against a party as an individual, while having
only slight probative value with regard to the issues’ †(
abused its discretion, that is, unless it exercised its discretion in an
arbitrary, capricious, or patently absurd manner. [Citations.]â€
(Id. at p. 806.)
Taking
first the traumatized-victim statement, we note that the trial court expressed,
apparently on its own, unease about having the jury hear it, and articulated this
as part of general concern that prosecutor Mahalich might come to regret having
successfully had the jury hear the entire call:
“The more I read this,†the court reflected, “the more I wonder if the
People get a verdict in this case . . . if the appellate court
won’t throw it out for my letting them hear this transcript. That was a risk the People took, I
guess.†To Mahalich’s “Yes, your Honor,â€
the court added, apparently as an example no one had raised: “You never let anyone in the courtroom say they
traumatized anyone for their whole life.
I would not admit that.†Mahalich
replied that admission was not “for the truth,†but Brooks took the cue,
arguing: “You can’t parse it out. I mean, you have the tape and you want to get
snippets in that [are] for the truth and the b
| Description | A jury found Jeffrey Olesh and codefendant Edward Fraser guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), finding true, as to Fraser, that he used a firearm and, as to Olesh, that a principal in the crime was armed with one (id., § 12022, subd. (a)(1)). Each was sentenced to an aggregate six years in prison, Olesh’s sentence consisting of a five-year upper term for the robbery (id., § 213, subd. (a)(1)(B)(2)), a consecutive one-year enhancement for the vicarious arming, and a concurrent two-year midterm for violating probation that had been granted for grossly negligent discharge of a firearm (§ 246.3, subd. (a)). Olesh alone appeals, raising several claims of improper admission of evidence, a claim of ineffective assistance concerning his counsel’s failure to object to a ruling that led to defense evidence not being introduced, and a claim of cumulative prejudice. We affirm the judgment, finding no prejudicial error. |
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