Filed 9/26/17 P. v. Smith CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury convicted defendant Alvin Charles Smith of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), arising from an incident in a motel room involving the theft of cash from a man who responded to an online advertisement for prostitution services from Smith’s underage girlfriend. Smith contends two errors at his trial warrant reversal: he challenges as improper hearsay the admission of a police detective’s testimony about statements Smith’s girlfriend made in an interview concerning the incident, and he contends the jury was erroneously instructed concerning witnesses who testified under a grant of immunity. We reject both arguments and affirm the judgment.

BACKGROUND

By information filed on May 26, 2014, the Contra Costa County District Attorney’s Office charged Smith and co-defendant Trevor Johnson with second degree robbery, arising from an alleged robbery that took place on April 27, 2014.

The robbery charge against Smith proceeded to an eight-day jury trial. Two percipient witnesses testified: Smith’s underage girlfriend, Jane Doe, and the victim, Oscar Rodriguez.[1] Both testified under a grant of use immunity, meaning that their testimony at trial could not be used against them in another proceeding provided they testified truthfully. Their testimony, although inconsistent in minor respects concerning some details (which we refrain from summarizing), was in large part consistent as to what had transpired.

According to Jane Doe, who was 16 years old, Smith was her boyfriend. In February 2014, the two discussed posting an online advertisement on Redbook to advertise her services as a prostitute. Other unnamed people she and Smith had met in this timeframe were the ones who actually posted it for them. On the afternoon of April 27, 2017, she, Smith and Smith’s friend Trevor were in a motel room at the Economy Inn, waiting for a man with whom she’d been texting in response to her prostitution ad. The three were planning to rob the man when he arrived. When the man arrived, Smith and his friend were in the bathroom. Jane Doe let the man into the room, and within 5 to 10 minutes he had removed his clothing. Smith and his friend then came running out of the bathroom, Smith pretended he had a gun and demanded the victim empty his pockets. When the victim didn’t comply, Smith then rifled through the victim’s pockets himself and Jane Doe saw him remove cash from the victim’s wallet. Then they kicked the naked victim out of the motel room, and threw his clothes out after him. Jane Doe admitted she had participated in a crime, and she also admitted lying to the victim by telling him she was 19. She also testified that Smith told the victim not to call the police because she was under age and he’d get arrested for having sex with a minor.

Oscar Rodriguez testified similarly. According to Rodriguez, he exchanged texts with someone on April 27 in response to a prostitution advertisement on Redbook and was told to go to the Economy Inn. He arrived within an hour, carrying $200 in cash, and Jane Doe answered the door. She wasn’t the person whose photograph had been depicted in the advertisement but he gave her $40 in cash, and took off his clothes. After washing his hands, he sat on the bed and Smith came out of the bathroom quickly and acted like he was going to pull out a weapon. Rodriguez (who testified through an interpreter) couldn’t understand what Smith was saying, and ran out of the room naked. The jury heard his 911 calls to police to the effect that he’d been robbed and recounting the details.

Another prosecution witness was a detective from the Richmond Police Department, Lynette Parker-White, who interviewed Jane Doe several months after the incident, and at trial was permitted to testify about Jane Doe’s statements about the incident over a defense objection that it was inadmissible hearsay.

Additional trial evidence is discussed post, to the extent it bears on the two appellate issues Smith has raised.

The jury found Smith guilty as charged and he was sentenced to state prison for nine years. Smith then timely initiated this appeal.

DISCUSSION

I.

Any Error in the Admission of Detective Parker-White’s Testimony Was Harmless.

Smith argues, first, that the admission of Detective Parker-White’s testimony about her interview with Jane Doe was erroneous, because it constituted inadmissible hearsay and none of the three hearsay exceptions invoked below is applicable.[2] We do not decide the hearsay question because any error in admitting Detective Parker-White’s testimony was harmless.

Detective Parker-White’s Testimony

The testimony of Detective Parker-White, now challenged here, began in substance when the detective was asked whether, in her interview of Jane Doe some months later, Jane Doe described a plan that Jane Doe and the defendant were engaged in on April 27, 2014. The detective’s entire direct examination was then as follows (with objections and colloquy of counsel omitted):

“A. Yes she did. [¶] . . . [¶] . . .

“Q. And, specifically, what did she tell you about that plan?

“A. She detailed that her boyfriend, Alvin Smith, created a Redbook page for her for the purposes of prostitution, and she was directed to contact the individuals that solicited the page and set up a time and a date, place where a sexual act was to be performed. [¶] . . . [¶] . . . .

“Q. Detective Parker-White, when (Jane Doe) told you about the plan being that—for her to post—let me back up. [¶] As you just outlined, that the plan that she—that (Jane Doe) conveyed to you was the defendant created a Redbook ad for her and that she was directed to contact individuals, who did she tell you directed her to contact individuals?

“A. Alvin Smith.

“Q. And did she tell you anything further about what the plan [sic] once she had set up the meeting place and time?

“A. Once the individual would come to the location, whether it was—in this case she stated a hotel room, she directed, at the direction of Alvin Smith, to have the individual take off their clothes. And once they were naked, then he would come out of the bathroom and would rob them and tell them ‘Don’t call the police because if you do, then you’ll have to admit that you were having sex or wanted to have sex with an underage child.’

“Q. Just to be clear, when the plan was that he would come out of the bathroom, who was that ‘he’?

“A. Alvin Smith.

“Q. And, specifically, what did she tell you was the plan with whether or not there would be any sort of a weapon used?

“A. There was a weapon—there was a simulated weapon used in the April incident, but there was—

“Q. That’s okay. So there was a plan to simulate a weapon?

“A. It was a simulated weapon at that point, yes.

“Q. And did she tell you what type of weapon the plan was for him to simulate using?

“A. At that point he simulated a firearm.

“Q. Did she tell you what the plan was for Mr. Smith to do once he simulated having the firearm and the individual was naked?

“A. Then he would rob them.

“Q. And you mentioned that there was something that the—the plan was something to be told to the naked man that came to the room. Who was to say something to the man who got naked?

“A. (Jane Doe) stated that Alvin Smith told them ‘Don’t call the police because then you have to admit that you were going to have sex with an underage girl.’ ”

Cross-examination was brief. It consisted of the following:

“Q. Now, (Jane Doe) didn’t tell you these things until July 22nd of this year; correct?

“A. Yes.

“Q. And the incident she was talking about occurred on April 27th of this year; correct?

“A. Yes.

“Q. And did she show you a Redbook ad?

“A. No, she did not. She doesn’t have a phone.

“Q. And she said that Mr. Smith directed her to contact people through Redbook?

“A. Once a—I don’t know how Redbook is used in the sense that if somebody contacts—somebody requests the ad or somehow likes the ad and then responds and then it goes to a cell phone. And once it—once there was an alert that somebody was responding to the ad, that’s when she would respond.

“Q. And to your knowledge, she never mentioned any of this prior to July 22 of this year; right?

“A. To me, no.”

Analysis

Smith argues that the admission of this testimony was “highly prejudicial,” because it presented the April 27 incident “as only one in a string of robberies, in which Jane Doe participated as a result of pressure from appellant.” The detective, he argues, “strong[ly] intimat[ed] that the robbery ‘plan’ was an ongoing one, conceived and directed by appellant.”

This overstates the record. At best, read in its entirety, Detective Parker-White could be understood as testifying there was a preconceived plan to lure multiple robbery victims; she did not testify Jane Doe told her multiple robberies had been committed. But whether or not the detective’s testimony suggested a broader plan is not significant, because Smith was charged with, and convicted of, only one robbery; he was not charged with multiple robberies or as part of a conspiracy to commit robbery. Furthermore, the possibility of a plan to commit multiple robberies was evidenced by Jane Doe’s testimony that she and Smith placed an online advertisement for prostitution services. Moreover, nothing in the detective’s testimony suggested Smith exerted “pressure” on Jane Doe. At most, the jury might infer from the detective’s testimony that it was Smith’s idea; but that fact alone is not prejudicial and would not be likely to influence a jury in even a close case.

Detective Parker-White’s brief testimony about her interview with Jane Doe also does not appear to have played a material part in securing Smith’s conviction. Neither the prosecution nor the defense mentioned it during closing arguments, much less did they stress it. The jury did not request a read-back of any of her testimony and had no questions concerning it. And at least three other witnesses inculpated Smith in this crime: Jane Doe herself, victim Oscar Rodriguez, and the arresting officer who testified about consistent, corroborating statements Rodriguez had made to police that implicated Smith in the robbery too. There also was circumstantial evidence of Smith’s guilt: the police found $99.51 in cash in Smith’s possession when they arrested him. And, according to the prosecution’s closing argument, there was an incriminating audio recording of the victim’s 911 call to police; in it, the victim could be heard saying “my money,” while Smith could be heard in the background taunting him not to call the police (“You gonna call police? She’s 15. You could go to jail. . . . Do it. Do it”).[3]

Even the defense’s own evidence corroborated the prosecution’s theory that this robbery was the result of a preconceived plan. One defense witness was the motel owner, who testified he had rented the motel room to Trevor Johnson, and did not recall ever seeing Smith. One highly plausible explanation as to why Smith’s friend would rent a motel room for Smith and Smith’s girlfriend, of course (if not the most plausible explanation), is they intended to participate in and share in the spoils of a pre-planned robbery. The only other defense witness was a defense investigator who authenticated and testified about video surveillance footage, which was played for the jury, of Smith and Trevor Johnson visiting a nearby tattoo parlor together that same day. The fact the two men were seen together afterward is consistent with their having been planning something too. Although they weren’t seen spending any money in the tattoo parlor, they appeared to be considering it (according to defense counsel in closing argument, “they’re showing their arm and talking about potential tattoos”), which would be consistent with their having just committed a robbery and coming into some ill-gotten spending money.

On appeal, Smith has discussed no evidence upon which the jury might have acquitted him that either conflicted with any of the foregoing or gave the jury reason to harbor reasonable doubt. He merely asserts, in a conclusory manner without analyzing the record of trial, that the admission of Detective Parker-White’s testimony was highly prejudicial.[4]

We disagree. It is not reasonably probable Smith would have been acquitted of this robbery had Detective Parker-White not testified about her interview with Jane Doe. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Reed (1996) 13 Cal.4th 217, 231 [applying Watson to erroneous admission of hearsay evidence].)

II.

There Was No Instructional Error Concerning Use Immunity.

Next, Smith challenges the following jury instruction, which was given at the prosecution’s request without any objection from the defense: “Immunity has been granted to two testifying witnesses in this case, Oscar Rodriguez and (Jane Doe). This immunity protects the testifying witness’s Fifth Amendment right not to testify against themselves by assuring them that, provided they testify truthfully, the statements they make in court cannot be used against them in prosecution against them. [¶] This immunity makes no promises as to whether the witness will be prosecuted based on evidence excluding their testimony. Furthermore, immunity only protects a witness as long as they testify truthfully.”

Smith argues the instruction was improper because it “presents the immunized witnesses as worthy of belief” by “paint[ing] the witnesses as having strong incentives to testify truthfully.” The “clear implication” of the instruction, he argues, “is that the witness has so much to lose by testifying untruthfully that it is reasonable to accept the veracity of his or her statements.” So, he contends, the instruction should have “include[d] a segment informing the jury that it should view an immunized witness’s testimony with skepticism.” We do not agree.[5]

Our Supreme Court has consistently held that trial courts are not required to give an instruction sua sponte as to whether the testimony of an immunized witness should be viewed with distrust. (See People v. Freeman (1994) 8 Cal.4th 450, 508 [“Defendant also contends that the court should have given the cautionary instructions because of the grant of immunity. None was requested, and there is no such duty to give such instructions sua sponte”]; People v. Daniels (1991) 52 Cal.3d 815, 867, fn. 20; People v. Leach (1985) 41 Cal.3d 92, 106 [appellant “cites no authority, and we find none, to support the position that juries should be given cautionary instructions sua sponte as to the trustworthiness of immunized witness testimony”]; People v. Hunter (1989) 49 Cal.3d 957, 977 [Leach “held that a trial court was not required to give such cautionary instructions sua sponte, but did not address a court’s duty to give such instructions upon request”].) Since Smith made no request below for a cautionary instruction, the trial court committed no error in failing to give one.

What is more, had the defense made such a request it would have been properly refused. Our Supreme Court rejected this very argument in People v. Vines (2011) 51 Cal.4th 830 (Vines): namely, “[b]ecause a witness who is given only use immunity may still be prosecuted for the underlying crimes, in defendant’s view the witness still has a compelling motive to lie, and the jury must be instructed to distrust the witness’s testimony.” (Id. at p. 883.) The Supreme Court could not have answered more definitively: “We are not persuaded.” (Ibid.)

As in this case, the jury in Vines was informed that a key witness for the prosecution testified under a grant of use immunity. (Vines, supra, 51 Cal.4th at pp. 881–882.) The trial court refused the defense’s request for a cautionary instruction directing the jury to view her testimony with distrust. (Id. at p. 882.) Instead, the court instructed the jury it could consider “ ‘anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness,’ including ‘[w]hether the witness is testifying under a grant of immunity.’ ” (Ibid.) The Supreme Court held the trial court did not err in refusing to instruct the jury to distrust the witness’s testimony. (Id. at p. 884.) It explained: “The general rule, of course, is that the jury decides all questions of fact, including the credibility of a witness. (Evid. Code, § 312.) And, as noted, except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact. ([Id.], § 411.) A cautionary instruction, by obligating the jury to view with skepticism the testimony of an immunized witness, impinges on the jury’s otherwise unfettered power to determine the witness’s credibility. To be sure, with respect to narrow categories of evidence, such as the testimony of accomplices, which must be corroborated ([id.,] § 1111), and in-custody informants ([id.,] § 1127a), the Legislature has imposed limits on the general rules because the witness is deemed to have a particularly compelling motive to lie. The Legislature has not, however, seen fit to do so with respect to immunized testimony . . . . We therefore see no compelling reason to depart from the generally applicable rule that the instructions need not direct the jury to view a particular type of evidence with distrust.” (Id. at p. 883, italics added.) And, the court reasoned, “ ‘ “it is a better practice to include factors such as immunized testimony to the list of considerations contained in CALJIC No. 2.20 rather than telling the jurors which witnesses they should or should not trust because, as they are specifically instructed, they “are the sole judges of the believability of a witness and the weight to be given the testimony of each witness.’ ” ’ ” (Id. at p. 884.)

Here, as in Vines, as Smith acknowledges, the jury was instructed that testifying under a grant of immunity was a factor it could consider in evaluating the witness’s credibility. And, it was properly instructed that “[y]ou alone must judge the credibility or believability of the witnesses” and, as in Vines, that the jury “may consider anything that reasonably tends to prove or disprove the truth or accuracy” of a witness’s testimony. Under Vines, then, there was no error by omitting an instruction on distrusting an immunized witness’s testimony. Indeed, such an instruction would have “impinge[d] on the jury’s otherwise unfettered power to determine the witness’s credibility.” (Vines, supra, 51 Cal.4th at p. 884.)

Smith argues Vines is distinguishable, but we are not persuaded. He says “this case, unlike Vines . . . , does not deal with an independent instruction on the need to view an immunized witness’s testimony with distrust. Rather, this case raises the issue of whether an instruction describing witness immunity and emphasizing the centrality of the witness’s truthfulness for a grant of immunity should also include a segment informing the jury that it should view an immunized witness’s testimony with skepticism.” That is a distinction without a difference, and elevates form over substance. The reason this case doesn’t “deal with an independent instruction” on distrusting an immunized witness’s testimony, and Smith instead couches this as a problem (by omission) with the instruction that was given,[6] is because he requested no instruction on witness immunity below and stated he had no objection to the one that was given. But that doesn’t change the fact that, in substance, the jury was properly instructed. Nothing in Vines’ analysis turned on the form of the requested “distrust” instruction (namely, whether it was embedded within an instruction informing the jury of immunity or, rather, stated as a stand-alone instruction). In short, there was no instructional error.

DISPOSITION

The judgment is affirmed.

STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.