P. v. Washington

Filed 8/7/07 P. v. Washington CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. R. L. Putnam, Judge.

Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On November 29, 2005, the Fresno County District Attorney filed a second amended information in superior court charging appellant George Washington, Jr. as follows:

Count Isecond degree robbery (Pen. Code,  211) with personal use of a firearm ( 12022.53, subd. (b)); and

Count IIpossession of a firearm by an ex-felon (Pen. Code,  12021, subd. (a)(1)) with a prior serious felony conviction ( 667, subd. (a)(1)).

The district attorney specially alleged appellant suffered two prior felony convictions (Pen. Code,  667, subd. (a)(1)), two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served a prior prison term ( 667.5, subd. (b)).

On November 30, 2005, a jury was impaneled.

On December 9, 2005, the jury returned verdicts finding appellant guilty as charged of the two substantive counts and finding the special allegation related to count I to be true.

On December 12, 2005, the court amended the second amended information by interlineation, corrected the docket number of one specially alleged prior conviction, and struck several other prior conviction allegations. Appellant then admitted the truth of one prior felony conviction and one prior strike conviction.

On February 16, 2006, the court denied appellant probation and sentenced him to a total term of 26 years in state prison. The court imposed the doubled upper term of 10 years on count I, a consecutive term of 10 years on the related Penal Code section 12022.53, subdivision (b) enhancement, a consecutive term of one year for a prior prison term ( 667.5, subd. (b)), and a consecutive term of five years for a prior felony conviction ( 667, subd. (a)). The court imposed a concurrent sentence of six years on count II ( 654).^[1] The court imposed a $5,200 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), ordered appellant to submit to DNA testing ( 296), imposed a $20 court security fee ( 1465.8, subd. (a)(1)), and awarded 106 days of custody credits.

On March 8, 2006, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Introduction

During a two-week period in November 2004, a number of armed robberies took place at businesses in the city of Fresno. The robbery sites included:

Tower Health on North Fulton Street on November 5, 2004;

Little Caesars Pizza on West Shaw Avenue on November 8, 2004;

Subway Sandwich Shop on North Palm Avenue on November 11, 2004;

Little Caesars Pizza on West Clinton Avenue on November 14, 2004; and

Subway Sandwich Shop on East Gettysburg Avenue on November 16, 2004.

On August 30, 2005, the district attorney filed an information against appellant and codefendant Charles Paul Wilson. The information charged Wilson with weapons possession and multiple counts of robbery, among other things. The information charged appellant with weapons possession and the robbery which occurred on November 8, 2004, at the Little Caesars Pizza on Shaw Avenue. The November 8, 2004, robbery was recorded on a surveillance video.^[2]Robert Thomas was a fellow drug user of appellant and Wilson. Appellant allegedly told Thomas about a number of charged and uncharged robberies he had committed with Wilson. The court severed the trials of Wilson and appellant. In appellants trial the court admitted evidence of the uncharged robberies to support the credibility of Thomas.

Evidence of the Charged Offenses

Facts underlying the November 8, 2004 robbery of Little Caesars Pizza on West Shaw Avenue

At 6:15 p.m. on November 8, 2004, Jose Cruz was working at the counter of the Little Caesars restaurant on West Shaw Avenue in Fresno. He looked through the front window and saw two African-American men pacing in front of the restaurant. One of the men was tall and lean and the other was short and stocky. The two men eventually entered the restaurant. The tall man walked around the counter while the short man opened a dark bag and pulled out a silver revolver with a wooden handle. The short man pointed the gun at Cruz and demanded money. Cruz, in shock, handed over some money and one of the robbers grabbed more money from the restaurant cash register. Cruz did not focus on the robbers faces because he was preoccupied by the weapon and with providing money to the robbers.

After the robbers left the restaurant, Cruz summoned Fresno police. Cruz told officers the shorter robber was 30 to 35 years of age, had a fade haircut, and wore a baseball cap or a hooded sweatshirt. Cruz said the gun was probably a silver revolver and the entire incident lasted less than a minute. At trial, the parties stipulated that Fresno police recovered latent fingerprints from the Little Caesars restaurant on the date of the robbery and that none matched the fingerprints of appellant or his acquaintances, Charles Paul Wilson, Robert Thomas, and Paul Benefield.

On November 21, 2004, Cruz examined a photographic lineup and identified Wilson as one of the robbers. On September 24, 2005, more than 10 months after the robbery, Cruz viewed another photographic lineup. That lineup had appellants picture in the number six position. Cruz said the individual depicted in position number two looked familiar and commented, Its been awhile. However, Cruz did not identify appellant from the lineup. At a prior court hearing, Cruz identified Wilson as the tall robber. At appellants trial, however, Cruz testified he did not recognize anyone from the robbery in the courtroom. Cruz also said no one in the courtroom resembled the shorter robber.

At appellants trial, Cruz identified Peoples exhibit No. 18 as the gun used by the shorter robber. Cruz testified that Peoples exhibit No. 19 did not look like the robbers bag. He said the robbers bag looked like a bank bag, that being a narrow bag with a zipper on top. At a prior hearing, Cruz described the robbers bag as having a top zipper. Cruz said the bag he saw looked different than Peoples exhibit No. 19 but did resemble it in size.

The parties stipulated that the video surveillance cameras were running properly at the West Shaw location of Little Caesars on November 8, 2004. The jurors watched a videotape, without audio, of still photos of the actual robbery (Peoples exhibit No. 2). Cruz viewed the videotape at trial but said it did not refresh his memory of the shorter robber. Robert Thomas testified he recognized appellant and Wilson from the video footage and said appellant was the robber with the gun. He also testified he recognized appellant based on the coat and jeans worn by the robber, the gun he used, and the robbers hair and facial features. Thomas also said he could see certain details in the image and testified I see its his [appellants] nose.

At trial, Fresno Police Detective Raymond Camacho, the chief investigating officer, testified the videotape of the robbery depicted a tall, lean assailant and a shorter assailant. Camacho said appellant and Charles Wilson positively matched those subjects. In Camachos opinion, Robert Thomas was not depicted in the videotape because Thomas was bald and had a rounder head and stockier build than the robbers in the videotape. In Camachos view, Peoples exhibit No. 18A^[3]resembled the gun in the video because it was a silver revolver. However, Camacho acknowledged that exhibit No. 18A might not necessarily be the same weapon as that used by the robbers.

Facts underlying the arrest and investigation

On the evening of November 16, 2004, Fresno Police Sergeant Elizabeth Marmolejo was on patrol duty. Sergeant Marmolejo was supervisor of the Northwest District Crime Suppression Team, which focused on serial crimes. That evening she noticed a Jeep Cherokee that matched the description of a suspect vehicle in a police briefing bulletin. The briefing bulletin described the vehicle as being a light brown or tan Jeep Cherokee.^[4]

Sergeant Marmolejo followed the Jeep, radioed the license number to dispatch, summoned other units, and the police stopped the Jeep without incident. Officers found three men inside the Jeep. Appellant, a middle-aged African-American male, was in the drivers seat. Robert Thomas, another African-American male, was in the front passenger seat. Bennie Fuentes, a Hispanic male adult, was in the rear passenger seat.

Appellant handed Sergeant Marmolejo a drivers license bearing the name of Glenn Bernard Washington. However, the photograph on the license did not resemble appellant. Marmolejo thought appellant resembled a circulated photograph that had been taken from a surveillance tape of the recent robberies. As she talked to appellant, Fuentes began to conceal a long, narrow object between the car seats. Officers later determined the object was a hypodermic needle. The syringe was empty but projected the strong odor of heroin in the seat area. The police dispatcher advised officers at the scene that Washingtons license belonged to a deceased driver and was suspended.

Officers arrested appellant for possession of a fraudulent drivers license. An officer searched him and found on his person an off-white rock substance that resembled cocaine. The substance was wrapped in a piece of clear plastic and was located in appellants front coin pocket. When the officer asked about the nature of the substance, appellant said he did not know what it was. The officer said it must be narcotics but appellant denied the rock substance was a narcotic. At trial, the parties stipulated the substance was a usable quantity of cocaine base. Officers also arrested Fuentes and Thomas and took them to police headquarters.

Police searched the Jeep and found a wallet with appellants identification under the drivers seat. In the center front console area, they found a wallet containing Thomass identification. On the floorboard of the front passenger area, they found Thomass cell phone. In the rear seat, the police found an empty hypodermic syringe with the needle broken off at the tip. A strong odor of heroin emanated from the seat where the needle was located. Officer Jeremy Maffei, who worked with Sergeant Marmolejo, believed the contents of the syringe had been emptied into the seat. The pocket behind the drivers seat contained a bag filled with syringes, six needles, pieces of aluminum, a hype kit, and a shoe lace.^[5] One of the syringes was loaded with a black/brown liquid; other syringes contained cotton infused with a black/brown liquid that appeared to be heroin. The parties stipulated the dark liquid in the syringe consisted of a usable quantity of cocaine and heroin.

In the rear cargo area of the Jeep, officers found jackets, shirts, and baseball caps. On top of those clothes, the officers found a black, zippered leather bag. They opened the bag and found a loaded silver revolver pistol. The trial court received the revolver in evidence as Peoples exhibit No. 18A and the black leather bag as Peoples exhibit No. 19A.^[6] A fingerprint analyst examined the revolver for latent prints but found none.

That same day, Detective Camacho conducted a tape-recorded interview with Thomas to determine his involvement with the revolver found in the Jeep. Camacho told Thomas he was under arrest for possession of the revolver and obtained a waiver of Thomass rights under Miranda v. Arizona (1966) 384 U.S. 436. Detective Camacho did not promise Thomas leniency for his statements. Thomas told Camacho the gun was not his, he knew why he was taken into custody, and he wanted to provide information to the police. Thomas referred to appellant as Bird and to Charles Paul Wilson as either Paul or Pelican. Thomas said he, Bird, and Pelican had used heroin together. Wilson had talked about robbing a pharmacy and appellant and Wilson had talked about robbing a Little Caesars Pizza restaurant. Wilson said he used different facial creams to mess with the security cameras.

Detective Camacho released Thomas at the conclusion of the interview because Thomas did not know the revolver was in the Jeep. Moreover, Camachos investigation did not connect Thomas or Fuentes to any robberies. Camacho searched appellants personal effects and found Wilsons telephone number next to the name Paul in an address book. Camacho searched the bedroom of Wilsons residence on November 18, 2004, and found a navy blue trench coat, black nylon gloves,^[7]a navy blue mechanics jumpsuit, wigs, and a burgundy-colored eyeglass case containing a hype kit. Detective Camacho testified a hype kit typically consists of a syringe ordinarily used to inject narcotics. Camacho also located a gray derby cap and several other derby caps in Wilsons residence.

Robert Thomas testified for the prosecution at appellants trial and admitted he had a long criminal history. He also admitted he was a narcotics addict who was using two to three grams of heroin a day at the time of the offenses. In November 2004, Thomas had known appellant, to whom he referred as Bird, and Wilson, to whom he referred as Paul or Pelican.^[8] During this period, the trio spent time together and ingested drugs every day. Thomas was a heroin addict and used two to three grams of the narcotic every day. Appellant and Wilson used a mixture of heroin and cocaine known as a speedball or a John Belushi. Thomas supplied money to purchase drugs and appellant and Wilson knew where to procure them. Thomas said appellant and Wilson sometimes paid him back in the evening and on other occasions they paid him back in drugs.

At noon on November 16, 2004, Thomas met with appellant and Wilson at the West Side Market. Thomas had injected heroin that morning and was looking to get more. Appellant was seated in a Jeep Cherokee that he either owned or used and Thomas approached him. Thomas, appellant, and Wilson discussed the possibility of getting drugs. During that conversation, appellant sat in the Jeep, Thomas stood next to the Jeep, and Wilson came and went. Thomas talked to them about getting and using drugs. While Thomas did so, appellant took a gun from a zippered black leather case and displayed the weapon. Thomas said they excitedly talked about the weapon and Thomas testified he may have touched the gun.

Appellant brought up the subject of robbery and said he wanted to commit some more robberies because he was low on money. Appellant said he was angry at Wilson because the robbery of a pharmacy did not go as planned and the money was insufficient. Appellant said he wanted to go somewhere to show how a robbery should be conducted but he did not go into detail about his role in the pharmacy robbery.

Although there was a further discussion of robbery, Thomas did not pay attention because he was trying to get high on drugs. He thought appellant referred to Little Caesars and other places but he was not paying attention. At one point, appellant asked Thomas whether he would be interested in participating in a robbery. Thomas declined because he did not want to throw my life away over small robberies. Thomas said if he were to rob anything, it would have to be something big, such as a bank. Thomas said he did not need to commit robberies because he earned money every day by working at a family-owned funeral home.

Thomas said someone bought drugs at the market and then he, appellant, and Wilson went directly to June Sheldons Calwa home to use the drugs. They arrived near evening. Appellant brought the black bag and gun into Sheldons house and Thomas saw the weapon and accessories again. Appellant, Thomas, Wilson, and Sheldon used drugs in Sheldons home. Several people left the house for beer and drug runs, but Thomas stayed at the house between 30 and 60 minutes. He got high but claimed he had a strong memory of what occurred.

Appellant mentioned robbery again at Sheldons house. He angrily talked about several previous robberies and spoke in general terms about using facial cream during the crimes to mess with the cameras. Thomas said appellant may have left Sheldons house at one point but appellant mainly stayed around the house. Wilson may have stepped out of the room where Thomas fixed his drugs, but Thomas believed Wilson did not leave the house at all.

Between 7:30 and 8:00 p.m., Thomas and appellant left Sheldons home and drove to Mens Wearhouse so Thomas could buy a pair of shoes. Wilson remained at Sheldons home. En route to the Mens Wearhouse, Thomas received a call on his cell phone from Bennie Fuentes. Fuentes, an acquaintance, said he was being released from Fresno County Jail and asked Thomas to pick him up. Appellant and Thomas drove to the jail, picked Fuentes up, and the trio drove to the Mens Wearhouse. Along the way appellant became nervous because a police car was following them. He asked Thomas to identify him by the name of a male relative in case the police stopped their vehicle. Thomas said, I thought you said you were legit? Although appellant explained that his license was messed up, Thomas was unwilling to provide a false name.

The police eventually pulled the Jeep over, approximately one hour after Thomas had asked appellant to take him to buy shoes. Thomas was worried about whether appellant had done something that day and whether appellants vehicle had been identified. Thomas said he had not participated in the robberies in any way. However, he knew he had a bad history and would be in a great deal of trouble if he were connected with the robberies. Thomas did not know the Jeep contained a gun and drugs and became upset when the police found them. Thomas said he never rode with guns in a car because he was prohibited from having a weapon due to his record. Thomas said the gun in the Jeep was not his; he knew the gun was associated with appellant.

Thomas said he had seen the zippered bag with the gun several times earlier that day. The bag was inside the Jeep. The first occasion occurred around noon outside the West Side Market. Thomas saw appellant in the Jeep Cherokee with Wilson. They all talked about getting drugs. Appellant displayed a gun to Thomas. Appellant kept the gun in a small, zippered black leather case. Appellant said he was low on money and wanted to do more robberies.

When Thomas spoke with Detective Camacho, he attempted to avoid being implicated in the robberies. Thomas did not think he was under arrest and did not make any deals with Detective Camacho. He nevertheless hoped the detective would not arrest him if he talked. According to Thomas, he may have told Camacho he hoped he would not be charged with being a felon in possession of a firearm or with possession of narcotics. Thomas also said by talking to Camacho he had the benefit of not being cut off from his daily supply of heroin. Thomas said Camacho did not conduct any tests to determine whether he had heroin in his system.

Thomas told Detective Camacho that appellant and Wilson repeatedly asked him to participate in robberies. Thomas said he declined to get involved in Mickey Mouse robberies because he was a former member of the Black Gorilla Family prison gang. Thomas also told Camacho that Wilson or appellant had described a robbery in which a shot had been fired. Thomas said the robbery might have occurred in a doctors office, but he was not sure about the type of business involved. Thomas also told Camacho where Wilson lived and pointed out Wilsons residence.

At trial, Thomas recalled appellant talking about the robbery of a pharmacy. During that robbery, Wilson laughed and fired a shot when people didnt want to cooperate. Thomas said appellant was upset with that robbery because it generated insufficient money. Appellant was also angry at Wilson because that robbery did not take place as planned. Thomas identified Wilson in the courtroom. The prosecution played a surveillance camera video recording of still shots from the November 8, 2004, Little Caesars robbery for the jury (Peoples exh. No. 2). Thomas viewed the same videotape of the charged robbery and identified appellant and Wilson as the robbers depicted in the video. Thomas testified that appellant was the robber holding a gun and dressed in a leather jacket and cap. Thomas said he recognized appellants leather coat, jeans, gun, and hairstyle. Detective Camacho viewed the same video and testified that appellant and Wilson positively matched the subjects depicted in the video. He also said the gun depicted in the video was a revolver and was the same color as the revolver found in the Jeep.

Evidence of the Uncharged Crimes

Facts underlying the November 5, 2004 robbery of Tower Health

At 4:00 p.m. on November 5, 2004, a tall, thin African-American male entered Tower Health, a vitamin store on North Fulton Street in Fresno. The male, later identified as Charles Wilson, questioned the store manager, Julie Wilson (Julie) about various supplements. Wilson said he needed supplements for his wife because she was going through menopause. Julie told Wilson she had to speak directly to his wife about menopause supplements. Wilson said someone was parking the car and would then come into the store. Julie assumed that Wilson was referring to his wife as the driver.

When Julie told Wilson what he owed for his purchase, Wilson said he did not have the money and was going to use hers. He then put a rectangular black bag^[9]on the counter and instructed her to place all of the products in the bag. When Julie argued with him, Wilson pulled a small gun from a waist pouch and showed it to her. Julie initially thought the gun was a toy. She tried to call 911 but Wilson became nervous. She then put the telephone down and said she was not calling anyone. Wilson took the safety off the gun, which made a clicking sound. Julie then realized the gun was real, became scared, and began shaking. Wilson pointed the weapon to her side at an angle, fired one bullet at the floor, and knocked a tile off. Julie then filled the bag with vitamins and about $1,000 in cash. Wilson ran out of the store and Julie called 911.

Law enforcement officers subsequently recovered bullet fragments from Tower Health and sent them to the California Department of Justice for analysis. Nancy McCombs, senior criminalist at the Department of Justice crime laboratory in Fresno, compared the fragments with bullets test-fired from Peoples exhibit No. 18A. McCombs said there was some agreement between the two but the test lacked necessary detail for an identification. Therefore, she could not determine whether the fragments had been fired from Peoples exhibit No. 18A or from some other gun. The parties stipulated that latent fingerprints were recovered from Tower Health on the date of the robbery but that none matched the prints of appellant, Wilson, Robert Thomas, or Paul Benefield.

On November 17, 2004, Julie viewed a photographic lineup and positively identified Wilson as the robber of Tower Health. At a November 9, 2005, court hearing, Julie identified Wilson and the bag and weapon he used. At appellants trial, Julie identified Wilsons bag and gun (Peoples exh. Nos. 18A, 19A). However, Julie said she had never seen appellant before that day of trial. The parties stipulated that video surveillance cameras were running properly at Tower Health on the day of the robbery. The prosecution played a videotape of the robbery for the jury. The videotape depicted the robbery suspect holding a bag by a loop or handle.

Facts underlying the November 11, 2004 robbery of Subway Sandwich

At 7:40 p.m. on November 11, 2004, Sunpreet Athwal was working at the Subway Sandwich shop on North Palm Avenue in Fresno. Athwal was helping a coworker ring up a coupon for a customer when a tall, thin African-American male, later identified as Charles Wilson, entered the shop. A second African-American man stood outside the door of the shop. Wilson pushed the customer aside, pulled a small gun from his jacket, pointed the weapon at Athwal and her coworker, and told them to step back. Wilson took the cash out of the register, put it into a zippered black bag, and then left the shop. Wilson and the man at the door walked away together in the direction of the parking lot. Athwal did not get a good look at the face of the second man.

That evening, Athwal told police that Wilsons accomplice was between 61 and 63 tall and weighed between 155 and 175 pounds. She also said Wilsons bag was made of black cloth. The parties stipulated that latent fingerprints were recovered from the Subway restaurant on the date of the robbery and that none of those prints matched the fingerprints of appellant, Wilson, Robert Thomas, or Paul Benefield.

Athwal examined a photographic lineup and positively identified Wilson as the gunman. She also identified him at two hearings prior to trial. At some point, Athwal examined a photo lineup containing appellants photograph but was unable to identify anyone. At appellants trial, Athwal could not say whether appellant was the male who stood outside the door of the Subway on the date of the robbery.

At several prior hearings, Athwal identified Peoples exhibit No. 18A as Wilsons gun and Peoples exhibit No. 19A as Wilsons bag. At appellants trial, Athwal testified that Peoples exhibit No. 19A was similar to the robbers bag and Peoples exhibit No. 18A was similar to the robbers gun. She based the latter conclusion on the size, handle color, cylinder, and silver plating of the revolver.

Facts underlying the November 14, 2004 robbery of Little Caesars Pizza

At 8:00 p.m. on November 14, 2004, Gary Anderson was making pizzas at the Little Caesars restaurant on West Clinton Avenue. He looked toward the cash register and saw his coworker, Andrew Warber, taking money from the safe and handing it to a nearby African-American male. The male, later identified as Charles Wilson, was dressed in a blue jumpsuit and beanie and was holding a blue, zippered bank deposit bag. Wilson displayed a gun and told Warber not to do anything fucking stupid. Anderson was singing to the music of a radio at the time and did not actually see the gun or hear Wilsons statement. Wilson took between $400 and $700 from the register and safe and left the restaurant.

After Anderson called 911, he and Warber went outside and spoke to a group of people. Warber told the group members he and Anderson had just been robbed. A woman said she had just seen a man run out of the restaurant to a vehicle resembling a Jeep. The vehicle was located in front of a Longs Drugs store, about halfway through the parking lot. Anderson thought the woman said the vehicle had a dark color but he was unsure of her statement.

At 8:00 p.m., Kimberly Lopez was collecting shopping carts in front of the Longs Drugs store. The store was two storefronts away from the Little Caesars restaurant. Lopez saw a gold Jeep Cherokee parked on the side of Longs. The engine of the vehicle was idling and the back passenger door was open. Lopez saw a tall, thin African-American male walk quickly across the parking from the area of the Little Caesars toward the location of the Jeep. The man was dressed in a dark blue jogging suit and was carrying a shiny white bag. At trial, Lopez said she did not recognize anyone when she viewed a photographic lineup that included Wilsons photograph.^[10]At a prior hearing, Lopez identified Wilson with 70 percent certainty.

Anderson positively identified Wilson as the robber when he viewed a photographic lineup on November 19, 2004. However, Anderson could not make a positive identification when he saw Wilson in person at a prior hearing. Anderson testified a jumpsuit found in Wilsons home (Peoples exh. No. 21) looked like the jumpsuit worn by the robber. Lopez testified the man she saw in the parking lot might have been wearing a jumpsuit but she was not certain of that. At trial and at a prior hearing, Anderson did not identify Peoples exhibit No. 19A as the robbers bag.

Anderson testified that appellant was not the robber and Lopez testified she had never previously seen appellant. Lopez testified the Jeep that appellant was driving on November 16, 2004, looked like the Jeep she had seen in the parking lot on November 14, 2004. She based her conclusion on the make, color, tinted windows, and wheel rims of the vehicle. According to Anderson, another woman reported seeing a Jeep-like vehicle parked in front of Longs. She mentioned the color of the vehicle but Anderson could not recall what color she mentioned. Anderson later testified the woman may have referred to a dark color. However, he was not certain. Based on briefings about the various robberies, police were looking for a tan Jeep Cherokee.

The parties stipulated that law enforcement officers recovered latent fingerprints from the West Clinton Avenue Little Caesars restaurant on the date of the robbery. The parties further stipulated that none of the prints matched the fingerprints of appellant, Wilson, Robert Thomas, or Paul Benefield. The parties also stipulated that video surveillance cameras were operating properly at the Little Caesars restaurant on November 14, 2004. The prosecution played the videotape of the robbery for the jury at trial. In the opinion of Detective Camacho, the suspect in the videotape appeared to be wearing black nylon gloves.

Facts underlying the November 16, 2004 robbery of Subway Sandwich Shop

At 6:00 p.m. on November 16, 2004, Ravneet Kaur was working at the Subway Sandwich Shop on East Gettysburg Avenue when a tall, thin, African-American male entered the restaurant. The male was wearing a dress suit and a flat hat. He went to the register and Kaur asked whether she could help him. The man said, Yeah, if you can give me some cash. He then pulled a gun out of a bag. The gun was black and had a brown handle. Kaur gave the man about $200. He asked her to open the safe but she said she did not know the combination. He next asked whether she had any money but she answered in the negative.

At about that same time, Nasa James was completing a phone call at a phone booth in the same shopping complex. After finishing his call, James walked across the darkened parking lot to the Subway Restaurant to get something to eat. James was about 100 feet away when he passed a tall man coming from the direction of the Subway. The two men made eye contact and the tall man seemed concerned about Jamess presence in the parking lot. James recalled the man was wearing a trench coat and was holding a thin, black plastic shopping bag. James also testified the man may have been an African-American with a hat, beard, and dark features.

A few days after the robbery, Kaur viewed a photographic lineup but did not recognize anyone. At trial, she initially identified Peoples exhibit No. 18A but went on to testify it did not resemble the robbers gun. She explained the robbers gun had a different shape and was black, not silver. She further testified that Peoples exhibit No. 19A resembled the robbers bag.

On the evening of the offense, James spoke with police officers and said he would be unable to identify the person he saw. On November 22, 2004, James viewed a photographic lineup and pointed to Wilsons picture because the eyes looked familiar. However, James was uncertain and did not want to identify anyone because he had not seen the man clearly due to poor lighting conditions. At trial, James testified that Peoples exhibit No. 19A resembled the bag he had seen because it was black and shiny. The parties stipulated an investigator had searched for latent fingerprints in the Subway Sandwich restaurant on the date of the robbery but had found none.

DISCUSSION

I.

TRIAL COUNSELS FAILURE TO OBJECT TO ADMISSION OF CONFESSION

BY WILSON

Appellant contends reversal is required because his trial attorney rendered constitutionally ineffective assistance of counsel.

He specifically argues:

At trial, Robert Thomas testified that he thought appellant said something about Little Caesars during their discussion at West Side Market on November 16, 2004, but he wasnt really paying attention because he was trying to get high. This was Thomass only testimony regarding Little Caesars.

After Thomas finished testifying, Detective Camacho took the stand and testified that, during his interview with Thomas on November 16, 2004, Thomas said that Wilson and appellant had talked about doing a Little Caesars Pizza robbery. When questioned about who made the statements, Camacho testified that they had spoken about committing a Little Caesars Pizza robbery. Defense counsel made no objection to this testimony. His failure to object on hearsay grounds to Camachos testimony about Wilsons confession to committing a Little Caesars robbery with appellant and his failure to move to strike the evidence or to move for a mistrial deprived appellant of effective assistance of counsel.

As to the failure to object, an appellant bears the burden of proving ineffective assistance of counsel. (People v. Haskett (1990) 52 Cal.3d 210, 248; People v. Pope (1979) 23 Cal.3d 412, 425.) To establish constitutionally inadequate representation, the defendant must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsels failings the result would have been more favorable. (People v. Haskett, supra, at p. 248; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

Judicial scrutiny of an attorneys performance must be highly deferential. (Strickland v. Washington (1984) 466 U.S. 668, 689.) We presume that counsels conduct falls within the wide range of reasonable professional assistance, and we accord great deference to counsels tactical decisions. Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsels trial strategy. (People v. Frye (1998) 18 Cal.4th 894, 979.) Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. (People v. Bolin (1998) 18 Cal.4th 297, 333.) On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Fosselman (1983) 33 Cal.3d 572, 581.) Furthermore, counsel need not make a meritless objection to avoid an appellate claim of ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.)

On direct examination during the prosecutions case-in-chief, Thomas testified about a sequence of events that occurred on November 16, 2004. Thomas was with appellant and Charles Paul Wilson. Appellant sat in the Jeep with a door open, Thomas stood outside the Jeep, and Wilson walked back and forth near the vehicle. Appellant brought up the subject of robbery, explaining he was low on ins,^[11]i.e., money. Appellant told Thomas he wanted to do some more robberies. Appellant described the prior robbery of a pharmacy during which Wilson fired a shot. Wilson started laughing as appellant described the robbery. Appellant then became angry because the money was not enough and became angry at Wilson because the robbery did not go as planned. Appellant told Thomas he wanted to go off in the place and show how the robbery was supposed to be done. During the conversation, appellant, Wilson, and Thomas were looking to go cop some drugs. According to Thomas, appellant mentioned several other places in connection with the commission of robberies. Thomas testified, I think he said something about Little Caesars, two more places, I wasnt really paying too much attention to the other places, but that was one of them that was mentioned. Thomas said he was not really paying attention because he was trying to get high at the time. Appellant eventually asked Thomas if would be interested in participating in some robberies. Thomas told appellant he was not interested in the Mickey Mouse or little odds and ends robbery jobs they were doing. Thomas explained if he was going to participate in a robbery, it would have to be a bank or something like that. Thomas also said appellant brought up the subject of robberies a second time after they went to June Sheldons Calwa residence.

Detective Camacho subsequently testified during the Peoples case-in-chief. On direct examination, Camacho said he spoke with Thomas to determine his involvement with or connection to the weapon found in the Jeep Cherokee. During Camachos direct testimony, the following exchange occurred:

Q [by Deputy District Attorney Treisman] With regard to his association with Bird or how he knew him, did he explain that to you?

A [by Detective Camacho] Yes, he did.

Q Did he also describe or mention an individual by the name of Paul or Pelican?

A Yes, he did.

Q And did he explain how, if at all, he knew this individual?

A He said that they all used heroin together.

Q With regard to their use of heroin, he had already acknowledged his own use of heroin, did he explain anything else about these individuals?

A Yeah, he explained to me that they had, Pelican, or Paul, had talked about committing a prior robbery at a pharmacy, or what he thought was a pharmacy. And that he and Paul, as far as Pelican and Paul, had talked about doing a Little Caesars Pizza robbery as well.

Q Im sorry, who and Paul had talked about doing Little Caesars?

A Pelican and Paul, which would be Mr. Wilson and Mr. Washington.

Q Im sorry, Bird and Im getting confused. Paul and Pelican, are those the same people?

A Yes.

Q And Bird is a separate individual?

A Yes.

Q So who spoke of doing a Little Caesars? Mr. Thomas spoke of who?

A He said that during a conversation that they had spoken about committing a Little Caesars Pizza robbery.

Q I see. You heard Mr. Thomas testimony here yesterday and today?

A Yes.

Q Okay. Did that testimony, other than giving the specific person whose residence it was on Calwa, other than that, did his testimony differ from his statement to you?

A No.

The prosecutor stated in relevant part in opening argument:

Mr. Thomas acknowledged that hes a drug user, and that, and he said that the people he knew, Bird, Mr. Washington, Pelican or Paul who he knows as Mr. Wilson, were drug users. And what we find is that, pardon me, Mr. Washington has cocaine in his pocket, and we know that in particular they would speedball, that is Mr. Wilson and Mr. Washington, and that is a mixture of cocaine and heroin.... [][]

He also said that Mr. Washington in particular did the talking, but Mr. Wilson was there, and acknowledged talking about, robberies that were occurring. One, sounding distinctly like the Tower Health robbery, where a shot was fired, they described it as a pharmacy. Mr. Revvill [defense counsel] talked about it being a doctors office, Detective Camacho did not recall that, but it was a business seeming like a pharmacy to Mr. Thomas.

Now, again, theres no evidence that Mr. Thomas was there or participated, hes not saying he participated, hes not involved in those robberies, but hes hearing about them and hes telling you what he knows about them. Could he give a lot of detail? The answer to that is no, not a lot of detail. Hes relating what they said, what Mr. Washington in particular said.

And you know from the circumstances, Ladies and Gentlemen, piece to together what Mr. Thomas said, because Im talking about what supports Mr. Thomas in regard to these events. Mr. Thomas said that they were arguing. There was heat between Mr. Washington and Mr. Wilson, and that is because that robbery did not go as it should. A shot fired, the amount of time that he spent inside of that restaurant, excuse me, that health store, cannot possibly be how you plan a robbery. You dont want to be identified, you dont want things to, people to have an opportunity to get to know your face, so it did not go the way Mr. Wilson had in mind, and Mr. Washington is saying that. So it apparently was the case that he planned it with him, so hes going to show him, and did show him, how to commit a robbery. And that is the robbery we see at the Little Caesars with Mr. Cruz.

Defense counsel stated at closing argument:

You might also recall that when, you know, push comes to shove about some of the details what people have said, like well, we were doing crimes and this is probably the so-called confession, Washington said, Wilson and I did a Little Caesars. Okay? But one of the things that, and we dont know if thats just Wilson talking, or that now its Mr. Washington because he needs it to be Mr. Washington, because Mr. Washington is in the car. But when they are, on the 16th of November, 2004, talking outside of the Jeep, inside and outside of the Jeep, I guess, he says that, you know, theres more robbery talk thats happening, and he said, you know, they talked about Little Caesars and a couple of other places, but I really wasnt paying attention because I was trying to get high, so theres always kind of a way for Mr. Thomas to kind of, you know, fudge a little bit so that he doesnt have to be perfectly clear. He just has to keep implicating a person and it has to be Washington because Washington is the fella in the car.

The prosecutor stated during closing argument:

It is Mr. Thomas statement and some of the lack of detail, he cant say that Mr. Washington was involved in each of these robberies. In fact, if he were out to get somebody, he would have. If he were trying to get somebody, he would have said it. Who could refute it? But thats not what he said. He said what Mr. Washington told him, which is that there was this event at what seemed to be a pharmacy, it went awry, and hes upset, Mr. Washington is upset with Mr. Wilson about that. And so hes going to show him how its done, and then they do a Little Caesars. Thats the tone, thats the content of the statement overall.

And they do others together, but it is unclear whether Washington is just relating those, or whether hes saying hes involved in them. That isnt clear. Seems like it. But you dont charge things based on seems like, you charge things based on what the evidence is. So when you look at the videotape and you see Mr. Washington, and you have evidence independent of that, Mr. Thomas saying that its Mr. Washington, and when you know there is a connection between Mr. Washington and Mr. Wilson, and you know Mr. Wilson did that robbery, then you bring your charges. And thats what we have done, and here we are.

Appellant now argues:

Camachos testimony about Wilsons statement was hearsay because it was evidence of an out-of-court statement that was offered into evidence for its truth. Camachos testimony involves multiple hearsay because Camacho testified to Thomass statement about Wilsons statement. Thus, there were two levels of hearsay: (1) Wilsons out-of-court statement and (2) Thomass out-of-court statement to Camacho about Wilsons statement. [] ... []

Camachos testimony about Wilsons statement was extremely prejudicial, since Wilson was identified as the perpetrator of the charged Little Caesars robbery and three uncharged robberies, and Wilsons statement identified appellant as his accomplice in a Little Caesars robbery. There is no possible legitimate tactical reason for defense counsels failure to object to this evidence....

The record shows defense counsel had no valid tactical reason for failing to object to the admission of the statement. Defense counsel based his motion for severance in large part on the extreme prejudice to appellant of that same statement, which he quoted in his written motion as follows: Thomas stated that during one of many conversations with Wilson, he advised Thomas that he and Washington had done a Little Caesars Pizza robbery .... Since defense counsel sought and obtained severance based on the prejudicial impact of this statement, he obviously had no valid tactical reason to let the evidence be admitted in appellants trial.

Appellant overstates the record evidence and his contention must be rejected. Without citing to the record, appellant claims Wilsons statement identified appellant as his accomplice in a Little Caesars robbery. According to the record, Thomas said appellant spoke of a pharmacy robbery committed with Wilson and of appellants interest in committing additional robberies. Thomas testified that appellant said something about Little Caesars, two more places but Thomas never specifically testified that appellant had committed or claimed to commit robberies of Little Caesars restaurants. Detective Camacho testified Pelican and Paul, had talked about doing a Little Caesars Pizza robbery as well. Camacho initially explained, Pelican and Paul, which would be Mr. Wilson and Mr. Washington. However, upon further questioning, Camacho acknowledged that Paul and Pelican were the same person.^[12] Camacho testified that Charles Paul Wilson was the Paul or Pelican to which Thomas referred in his interview with Camacho.

Generally speaking, a defense counsels failure to object to inadmissible evidence is a matter of trial tactics which the appellate court will not second-guess. (People v. Riel (2000) 22 Cal.4th 1153, 1185.) Trial counsel is accorded wide latitude and discretion with respect to trial tactics and strategy. However, the exercise of that discretion must be reasonable. (People v. Frierson (1979) 25 Cal.3d 142, 166.) If the record on appeal sheds no light on why counsel acted or failed to act in the challenged manner, the claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one or there simply could be no satisfactory explanation. (People v. Bolin, supra, 18 Cal.4th at p. 333.)

Here, the record on appeal does not reflect why defense counsel did not object to Thomass hearsay statements about the robbery of a Little Caesars Pizza restaurant. Appellant submits there is no possible legitimate tactical reason for defense counsels failure to object to this evidence. In our view, trial counsel could have had several legitimate tactical purposes for declining to interpose an objection. First, the hearsay statements were somewhat oblique and convoluted. Defense counsel may have reasonably concluded that an ambiguous record was more likely to generate reasonable doubt in the minds of the jurors. Moreover, the interposition of a defense objection would have conceivably prodded the prosecution to elicit clarifying statements, thereby eliminating such doubt and irreparably damaging the defense case. Second, Thomas testified it was appellant who spoke about the robbery of a Little Caesars Pizza restaurant. Detective Camacho testified that he interviewed Thomas and the latter attributed the statement about Little Caesars to Wilson rather than appellant. From this state of the evidence, defense counsel could have reasonably concluded the statement was admissible as a prior inconsistent statement (Evid. Code,  1235). Third, as respondent points out, defense counsel may have elected not to object to Camachos testimony because it tended to show Thomass unreliability as a witness or his lack of credibility. The testimony tended to show unreliability because it demonstrated Thomas could not accurately recall who said what about the robberies. The testimony also tended to show lack of credibility because it suggested that Thomas shifted blame to appellant in an effort to avoid responsibility for the firearm that officers found in the Jeep.

Finally, even assuming arguendo a deficient performance by trial counsel, appellant has failed to affirmatively prove prejudice, i.e., a reasonable probability that, but for counsels errors or omissions, the result of the proceeding would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Appellant maintains Camachos testimony about Wilsons statement was extremely prejudicial because Wilson was identified as the perpetrator of the charged Little Caesars robbery and three uncharged robberies, and Wilsons statement identified appellant as his accomplice in a Little Caesars robbery. A careful reading of the challenged portion of the record reveals that Camachos recitation of Wilsons statement was simply not as clear or as damaging as appellant suggests. Moreover, the prosecution played a surveillance video recording of the November 8, 2004, Little Caesars Pizza robbery for the jury to view. From the videotape, the jurors could have independently determined whether or not the accused participated in the charged offense. In light of that demonstrative evidence, it is not reasonably probable that appellant would have obtained a more favorable result had defense counsel objected to Detective Camachos testimony about Wilsons interview statements.

II.

EVIDENCE OF THREE UNCHARGED ROBBERIES

Appellant contends the trial court abused its discretion under Evidence Code section 352 and violated his due process right to a fair trial by admitting evidence of three uncharged robberies.

Appellant specifically argues:

The prosecutor introduced evidence of four uncharged robberies: (1) the Tower Health robbery on November 5, 2004; (2) the Subway Sandwich Shop robbery on November 11, 2004; (3) the Little Caesars Pizza robbery on November 14, 2004; and (4) the Subway Sandwich Shop robbery on November 16, 2004. Appellant was not identified as being a perpetrator or as being at the scene of any of these robberies. Wilson was identified as the perpetrator of the first three robberies, and a bystander in the fourth incident suggested that a man he saw might have been Wilson.

The prosecutors strategy, in essence, was to mount an overwhelming case against Wilson by proving Wilson perpetrated the charged robbery and every uncharged robbery, by linking appellant to Wilson through the gun found in the Jeep and Thomass claim that Wilson and appellant associated together and made admissions, and to reach the conclusion that appellant must have been Wilsons accomplice in the charged robbery and might have been Wilsons accomplice in the uncharged robberies. The st[r]ategy involved circular reasoning. Evidence of Wilsons uncharged robberies was used to prove Thomas was telling the truth about the admissions, and the admissions were used to justify introducing the uncharged crimes into evidence. Moreover, evidence of the charged robbery was used to foster suspicion that appellant probably committed the uncharged robberies and that suspicion was used, in turn to strengthen the theory that he committed the charge[d] crime. [] ... []

In admitting the evidence of the November 5, 11, and 14 robberies, the trial court abused its discretion under Evidence Code section 352 and violated appellants right to a fair trial under the Fourteenth Amendment to the United States Constitution. ... The prejudicial impact of all of this evidence outweighed its probative value, and the evidence consumed an undue amount of time, confused the issues, and greatly increased the danger that the jury would convict appellant of the charged crimes in order to punish him for the uncharged robberies.^[13]

A. Procedural History

On August 30, 2005, the district attorney filed an information charging Charles Paul Wilson, in pertinent part, with the November 5, 2004, robbery of Tower Health (count I), the November 11, 2004, robbery of the Palm Avenue Subway Sandwich (count III), the November 14, 2004, robbery of the Clinton Avenue Little Caesars Pizza (count IV), possession of a firearm by a felon (count V), and prior strikes. The information also charged Wilson and appellant George Washington, Jr. with the November 8, 2004, robbery of the Shaw Avenue Little Caesars Pizza (count II) and charged appellant with possession of a firearm by a felon (count VI) and with prior strikes and prison terms. A second amended information filed November 29, 2005, set forth similar allegations.

On November 3, 2005, the district attorney filed a first amended information charging Wilson and appellant, in pertinent part, with the same substantive offenses. On the same date, appellant moved in limine to sever his trial from that of Wilson because of the potential for prejudice. On November 7, 2005, the court granted the motion to sever by minute order and directed that appellants trial follow that of Charles Wilson. On November 21, 2005, while the jury was deliberating in Wilsons case, the court ordered preparation of a reporters transcript of Thomass testimony in the Wilson trial. On November 22, 2005, the court ordered preparation of a reporters transcript of the cross-examination of Detective Camacho in Wilsons trial.

Later in the November 22 hearing, the following exchange occurred:

MR. REVVILL [defense counsel]: You know one of the reasons I moved to sever the first case ... [w]as that the jury was going to hear all of this evidence that was primarily targeted against Mr. Wilson, and there might be the spill over effect. And so, that was the basis for severance. But I think the fact still remains that the relevance of all of that other information of all of these other robberies which my client is not charged is certainly, it seems outweighed by its prejudicial impact given the fact that hes just not a charged defendant nor identified as being present at them. Hes not present at the at least, you know, theres another man alleged to have been present with Mr. Wilson. That person is never identified, and yet, the jury is going to hear about it, and theyre going to be speculate even though theyre going to be directed not to, that its this man here because hes sitting here. Hes on trial. And its going to be the same with every other robbery, apart from the November 8th one, in which they hear evidence. And so, I may be more than just a 352 issue. It may be a due process under both California and Federal constitution. It seems fundamentally unfair that the jury is going to be hearing a lot of evidence about this string of robberies that occurs and use that to reach a conclusion that Mr. Washington was one of the people who robbed Little Caesars on November 8th, 2004.

THE COURT: Mr. Treisman? [] ... []

MR. TREISMAN: Well, theres a string of robberies. That is correct. The association between Mr. Washington and Mr. Wilson is extremely relevant. Mr. Thomass testimony is that the two of them were associated with one another. And its Mr. Washington who tells them that the two of them are conducting robberies. Its Mr. Wilson who is doing them, but Mr. Washington who knows of them. In particular Tower Vitamin. He knows very specifically. And he mentions a