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P. v. Wilson

Filed 9/21/07 P. v. Wilson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Clinton Brian Wilson appeals his conviction by jury trial of second degree robbery with personal firearm use (Pen. Code,^[1] 212.5, subd. (c), 12022.53, subd. (b)) (count 1), possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 2), burglary of a vehicle ( 460, subd. (b)) (count 3) and possession of stolen property ( 496, subd. (a)) (count 4). In a bifurcated proceeding, the court found true a prior conviction allegation. ( 1203, subd. (e)(4).) Wilson was sentenced to 15 years eight months in state prison. Codefendant Jeffrey Burtley^[2]appeals his conviction of second degree burglary while armed with a firearm ( 212.5, subd. (c), 12022, subd. (a)(1)) (count 1), burglary of a vehicle (count 3), and receiving stolen property (count 4). The court found true a prior serious felony conviction. ( 667, subd. (a).) Burtley was sentenced to 16 years four months in state prison.

Defendants both contend the court erroneously denied their joint Batson-Wheeler^[3]motion, and erroneously admitted a witnesss opinion testimony. In addition, Burtley contends the court erroneously denied his pretrial severance motion, there was insufficient evidence to support his conviction of possession of stolen property, and the court committed Blakely error (Blakely v. Washington (2004) 542 U.S. 296) in imposing the upper term and consecutive sentences in violation of his right to jury trial. We reject the contentions and affirm.

Background

Bank RobberyJuly 10, 2003

At about noon on July 10, 2003, Paula Pacis was working as lead teller at a San Mateo Wells Fargo Bank (San Mateo bank). She noticed two African-American men enter the bank through the rear door and approach her teller window. One man (later identified as Wilson), wore a black fishermans hat and blue shirt with security written on it in white letters; the other (later identified as Burtley) wore a white t-shirt, black baseball cap and black pants. Wilson put his hand, covered by an envelope, on the counter, told Pacis she was being robbed and demanded she give him money. He removed the envelope to reveal a small white handled handgun pointed at her, and told her to give him her hundreds and [fifties]. Burtley was standing next to Wilson. Pacis complied with the demand and placed the hundreds and fifties from her bottom drawer on the counter.

After Pacis placed the money on the counter, Burtley told Wilson he wanted all the money. Wilson then told Pacis to give him the twenties. Pacis put all the money in her top drawer on the counter while the gun remained pointed at her. The twenties contained a dye package marker. Burtley told her she would be okay and he and Wilson walked out the banks rear door. Pacis pulled the banks alarm and told two coworkers she had been robbed. Pacis calculated that $2,400 had been taken in the robbery.

Pacis met with FBI Agent Pete Adduci the following day, and, on July 13, 2003, he showed her two photographic lineups. In the first lineup Pacis identified a photo of Wilson and said he was the person who robbed her. In the second lineup Pacis did not recognize anyone as the robber who held the gun or the robbers accomplice.^[4]Adduci also showed Pacis a gun which she identified as that used in the robbery. At trial, Pacis identified Wilson as the man with the gun and Burtley as his accomplice.

Contractor John Caropepe and carpenter Kevin Kerns were working at the San Mateo bank at the time of the robbery. Caropepe and Kerns noticed a reddish late model Mustang convertible with a tan top, drive through the bank parking lot with two men inside. One of the men wore a dark fishing-style hat and a blue shirt with white stenciled letters. About 10 or 15 minutes later, Caropepe saw the man with the hat and a shirt saying security walk by with another African-American man, walking toward the banks door or ATM. A couple minutes later, Caropepe saw the same two men running past the bank window and down the street, and heard a bank teller tell the bank manager she had just been robbed. Caropepe and Kerns went in pursuit of the two men and found an exploded dye pack and some money in the street.

Automobile BurglaryJuly 12, 2003

Mark Dahl testified he drove his Ford Tempo to Antones Bar in San Mateo on the afternoon of July 12, 2003. He left his red Marlboro fanny pack on his cars front seat underneath a vest, locked the car and went inside the bar for lunch. The fanny pack contained various items including Dahls wallet, checkbook, passport, and various receipts. At about 2:00 p.m., he discovered his car had been broken into, the front passenger window was broken out and his fanny pack was missing.

Bartender Sandra Tipsword and her friend Bruce Hollingsworth were at Antones Bar when they heard the sound of glass breaking. Hollingsworth and Tipsword went outside and saw two African-American men walking across the street and a car with its window broken out and glass on the ground. When Hollingsworth yelled hey, the two men looked at him and started running toward an alley. Hollingsworth and Tipsword said one of the men wore a dark fishing-type hat and a shirt that said security. The other man wore a light colored, or white shirt and a hat with the visor turned backwards. Tipsword called 911 and chased the two men into the alley. She said she was really scared because she did not know if the alley had an outlet. Inside the alley, a silver or white car backed up toward Tipsword and drove down the alley.

On July 18, 2003, Tipsword and Hollingsworth were each shown photographic lineups. In one lineup Tipsword circled Wilsons picture and said she was 30 percent sure it was one of the men she saw. In the other lineup she circled Burtleys picture and said she was 30 percent sure he was one of the men she saw. Hollingsworth also selected Wilsons picture as the man he saw in the fishing hat and security shirt. In the second lineup he circled Burtleys picture as the person wearing the light colored shirt.

Pacis, Tipsword and Hollingsworth attended a live lineup on August 8, 2003. Each selected the person in the number one position, although it was stipulated that Wilson was in the number three position in the live lineup.

At trial Tipsword and Hollingsworth said photos of Wilsons car looked like the car they saw in the alley. Hollingsworth identified defendants as the two men he saw on July 12. Tipsword identified defendants as the men she saw following the auto burglary and was certain of her identification.

Defendants ArrestJuly 12, 2003

At about 3:00 p.m. on July 12, 2003, Rocio Sandoval was working as a teller at a Palo Alto Wells Fargo Bank (Palo Alto bank). She noticed two African-American males loitering outside the front of the bank for about 20 or 30 minutes, looking into the bank, which aroused her suspicion. Sandoval, who was aware of the San Mateo bank robbery, notified acting bank manager, David Prasad, who told her to call police. Prasad then walked toward the door of the bank as the two men entered. One of the men wore a white t-shirt, blue jeans and a hat or visor, and the other wore a dark blue or black t-shirt with security written across it and a fishermans hat. The man with the security shirt was holding a piece of paper. The men stood in a teller line looking around and appeared nervous or confused. After reaching the front of the teller line, the men left the bank without going to a teller window or making a transaction.

Prasad testified that when he went outside to contact the two men, the man with the security shirt, later identified as Wilson, asked what time the bank closed. Prasad found the question unusual, because the bank hours were posted on the door in the area the two men had been looking. While the two men waited in the teller line, they were stared at by Prasad and the three tellers, who had been alerted to their presence. Prasad said it was suspicious that the men left the bank without doing a transaction. Prasad followed the two men after they left the bank and eventually lost sight of them. He thought it was unusual that the men did not go to a car in the bank parking lot.

Police detained defendants near the bank parking lot. Wilson was carrying a rolled up blue t-shirt with security written on it and a soft-type hat. A consensual pat search of Wilson turned up a clear baggie with 12 wrapped smaller baggies containing marijuana and two .32-caliber hollow tip bullets. Nothing was recovered in a consensual pat search of Burtley. A 2000 Pontiac Grand Prix registered to Wilson was recovered across the street from the Palo Alto bank and impounded. A search of the car turned up a red Marlboro fanny pack containing Dahls passport and checkbook.

Defendants were separately transported to the police station where they were placed together in an interview room. On a hidden camera, Wilson was observed pulling a gun from his pants and placing it under an acoustic wall panel. Police then entered the interview room, recovered the gun and searched Wilson again, who was wearing two layers of clothing. Pacis later identified the gun recovered from Wilson as the gun used during the robbery of the San Mateo bank.

As part of his investigation of the San Mateo bank robbery, San Mateo Police Sergeant Malcolm Laner was informed that a 1999 Ford Mustang convertible was registered to Burtley. On August 7, 2003, he went to the courthouse where the preliminary hearing was to take place, and located a red Mustang convertible in the courthouse parking lot. A check of the cars license plate revealed it was registered to Burtley, and the car matched the descriptions given by Caropepe and Kerns of the car seen in the bank parking lot following the bank robbery.

The thrust of the defense was mistaken identification.

Discussion

I. DefendantsBatson-Wheeler Motion Was Properly Denied

During jury selection, defendants, who are African-American, made a joint Batson-Wheeler motion after the prosecutor exercised peremptory challenges against prospective Jurors L.L. and S.B. After finding a prima facie case of purposeful discrimination, the court denied the motion finding there were race neutral justifications for the peremptory challenges. Defendants contend the denial of their motion was erroneous.

A prosecutors use of peremptory challenges to strike prospective jurors on the basis of group biasthat is, bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar groundsviolates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution, and also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. (People v. Avila (2006) 38 Cal.4th 491, 541 (Avila), quoting Batson, supra, 476 U.S. at p. 88 & People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.)

Recently, in Johnson v. California (2005) 545 U.S. 162 (Johnson) the United States Supreme Court reaffirmed the three-prong Batson test to be used by trial courts when motions are made challenging peremptory strikes: First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (Johnson, at p. 168.) The same three-part test has been endorsed by our Supreme Court for proof of state constitutional claims. (People v. Bell(2007) 40 Cal.4th 582, 596.)

Prospective Juror L.L.

L.L. was in the first group of jurors called to the jury box. During voir dire by the court, L.L. stated that nothing about her prior jury service would make it difficult to serve in this case and said there was no reason she could not be fair. L.L. said she was married, had two grown children, was a high school math tutor, her husband was a truck driver, no one in her household had legal training and she had no friends involved in criminal law. L.L. said that two years before she was a juror on a drug-related case in San Mateo County. She said, the guy felt that he had been set up by the police. Subsequently, the prosecutor asked if any of the prospective jurors felt sympathy that would interfere with their ability to be a fair and impartial juror. In response, L.L. volunteered, By being an African-American and they are African-American, I have no problem with it. After the prosecutor asked whether anyone disagreed with the concept that just because there is some conflicting evidence that in and of itself does not create reasonable doubt, the following colloquy occurred:

[L.L.]: I think it could possibly cause some confusion.

[Prosecutor]: But you understand you have to evaluate all of the evidence; is that correct?

[L.L.]: Exactly.

The prosecutors sixth peremptory challenge was to L.L. At the time L.L. was challenged, counsel for defendants had peremptorily challenged five prospective jurors.

Prospective Juror S.B.

When prospective Juror S.B. was called to the jury box, he asked to be excused for hardship. He explained his hardship was, Both business and financial. From a business standpoint, I have a lot of deliverables and deadlines which still have to be met. So if I serve on the jury, I still have to probably go into the office and work after hours and on weekends, get projects done. S.B. explained he did financial accounting work for Hewlett-Packard and acknowledged he would not lose income as a result of his jury service. S.B. also said he was concerned that if he was on a jury panel for two weeks it would jeopardize his opportunity to interview for a position with a new company. S.B. said the interview had not yet been scheduled, but would probably occur within the next week. After he acknowledged that the prospective employer would potentially be willing to reschedule the interview due to his jury service, the court denied S.B.s hardship request.

S.B. then stated he was single, had no children, lived alone and had no friends or relatives involved with law enforcement or criminal law. He also said there was no reason he could not be fair and impartial. Subsequently, in response to questioning by the prosecutor, S.B. said he would be pretty unhappy if he got called for the interview and the company was unwilling to reschedule it. However, he answered no when asked if he would hold it against the prosecutor or the defense. S.B. said, I think if I explain my circumstances, if they want me bad enough, they will probably let me come in at another time. Thats my true feelings. [] . . . So I think we could probably work something out maybe even after hours. . . . He reiterated that even if he was sitting on a jury, his work still needed to get done, nobody else could do it, and he would have to work weekends or after hours. When asked if he will be okay with the course of the trial, S.B. answered, Sure. Thereafter, the prosecutor exercised his thirteenth preemptory challenge against S.B. and defense counsel made their joint Batson-Wheeler motion.

In asserting the Batson-Wheeler motion, the defense argued that out of the nearly 100 people in the jury panels, only three were African-American, including L.L. and S.B. The court noted that following the challenges to L.L. and S.B., one African-American remained on the jury panel. Thereafter, it found that a prima facie case had been established and asked the prosecutor to explain its peremptory challenges to L.L. and S.B.

The prosecutor gave the following justification for challenging L.L.: First, as to [L.L.], . . . beginning initially with in-court conduct, I noticed uponshortly upon her entry at certain points during the voir dire process before I questioned her I did notice her staring at me on several occasions which was what initially drew my attention to her. [] Upon my voir dire, when I addressed the entire panel and asked the question if there was any reason I might be held to a higher burden by any members of the jury, including sympathy, she immediately upon her response when I asked her if there was any higher reasoning became defensive. As it sounded to me on the record that she would not sympathize with the defendants because they were African-American, making an assumption it was a race-motivated question asked by the People or at least thats how it seemed. And she did seem somewhat annoyed with me with her facial expressions after that particular question was asked. [] I also noted and was referred to me by Detective or Sergeant Cabral was that I asked the juror next to her who was Ms. [B.] and the rest of the venire a question about being able to resolve the conflicts in the evidence in the case, and if they feltone if they understood that conflicts in the evidence did not in and of themselves create reasonable doubt. Ms. [B.] seemed to have a problem with that. And at the same time, [L.L.] was nodding her head in agreement with that, which is something that Sergeant Cabral noticed as well. [] At the end of the day in the exercise of peremptories, I did not further voir dire her anymore yesterday and did notI passed on her at this point. [] When I came back in here this morning I noticed her body language directed towards me. She did seem to focus on me at least a little bit. Based upon that, I felt she might harbor some ill will towards me because of my question, if my question offended her, and if she might hold that against me personally and against the prosecution of the case. Those are my reasons as to [L.L.].

The prosecutor gave the following justification for challenging S.B.: As to [S.B.], I think the record is very clear [S.B.] started out by asking to be excused for hardship, which the court denied. He stated he had numerous business obligations and was going to be working late after work just at the hardship stage, and additionally that he had a potential job interview that was available to him that was [possibly] going to be missed if he had to serve on a jury over the next two weeks. He brought that up to the court. The court denied the hardship challenge. [] I then asked him on voir dire specifically about that particular issue. Are you going to be upset if you miss that opportunity, and he said yes, Im not going to be happy if thats the case. He did comment that if they wanted him badly enough they would reschedule, but the fact that he could potentially [lose] a job interview for a higher paying job is obviously a matter of concern. Coupled with the fact that he indicated that he was going to continue to work late after trial as well as on the weekends additionally I feel met the criteria to strike him as a [juror] in this particular case. I have also struck other . . . [] . . . jurors for the same basis. In terms of having contrary concerns that will be distractions to them over the . . . same reason why I struck Mrs. [S.] based upon her repeated issues with having to be away from her children, not being able to take care of her, being distracted about issues with her, same situation with Ms. [D.] and Mr. [W.] as well as the house sale. The prosecutor also noted that he had passed for challenge another African-American prospective juror.

Burtleys counsel responded that S.B. was quite clear . . . that he was more than willing to have the people he wanted to potentially interview him reschedule. . . . [H]e showed a willingness and readiness to serve and no frustration or temper tantrums. The court stated, I think fairly speaking, after sometime he did warm to the idea of possibly serving as a juror where he was a little bit more resistant to the concept at the beginning of his voir dire.

With regard to L.L., Burtleys counsel stated, I mean she was staring at us too. They are sitting up there. Here we are. They are kind of a captive audience. Im not sure they are staring at me is a substantial reason to kick her off the jury.

Wilsons counsel stated he did not perceive that the prosecutor did anything wrong and singled anybody out. And I didnt get those same feelings or reactions from [L.L.] or [S.B.] He noted there were a number of professionals on the jury that would rather be at work, and he did not understand the justification for the prosecutors challenges of L.L. and S.B.

The prosecutor responded that L.L. seemed to be offended by his question and responded defensively to it, and he was concerned she would hold it against him in the course of trial. He added that L.L.s body language solidified his concerns. As to S.B. the prosecutor said that S.B.s statement that he would not be happy if he did not get the job coupled with his having to work after hours and weekends gave the prosecutor concern that S.B. would be distracted with things other than trial, particularly if he were working late at night.

In denying the Batson-Wheeler motion the court stated that although it was somewhat troubled, and therefore found a prima facie case had been established, it concluded there was a reasonable neutral explanation for the prosecutors challenges of L.L. and S.B. and no purposeful discrimination had been shown.

The trial courts ruling on the issue of purposeful racial discrimination is reviewed for substantial evidence. (Avila, supra, 38 Cal.4th at p. 541.) The prosecutor is presumed to use peremptory challenges in a constitutional manner and deference is given to the courts ability to distinguish  bona fide reasons from sham excuses. [Citation.] (Ibid.) The prosecutor may exercise a peremptory challenge for any permissible reason, or for no reason at all, but if he or she provides an  implausible or fantastic [citation] justification for a challenged strike, the court may determine the justification is a pretext for purposeful discrimination. (People v. Huggins (2006) 38 Cal.4th 175, 227.) We defer to the courts conclusions so long as it makes a  sincere and reasoned effort to evaluate the nondiscriminatory justifications offered. [Citation.] (Avila, at p. 541.)  [I]n fulfilling [this] obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors [nondiscriminatory] reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutors [nondiscriminatory] reason for exercising a peremptory challenge is based on the prospective jurors demeanor, or similar intangible factors, while in the courtroom.  (People v. Ward (2005) 36 Cal.4th 186, 200, quoting People v. Reynoso (2003) 31 Cal.4th 903, 919.)

Defendants contend the courts finding that the prosecutor had race neutral reasons in support of his challenges of L.L. and S.B. is not supported by substantial evidence. As to the prosecutors justification that L.L. was annoyed with him, Wilson argues, in essence, that the prosecutor provoked L.L.s annoyance by posing a question that put her on the spot, rendering the prosecutors justification illusory. Defendants both argue there is no evidence in the record that L.L. expressed any disagreement with the concept that conflicting evidence does not alone create reasonable doubt, and there is no evidence that L.L. projected any animosity toward the prosecutor. Wilson argues that the prosecutors reliance on L.L.s body language should be given less weight.

Since the trial court was in the best position to observe [L.L.s] demeanor and the manner in which the prosecutor exercised his peremptory challenges, the implied finding, that the prosecutors reasons for excusing [L.L.], including the demeanor-based reason[s], were sincere and genuine, is entitled to great deference on appeal. [Citations.] (People v. Reynoso, supra, 31 Cal.4th at p. 926; People v. Stanley (2006) 39 Cal.4th 913, 939.) While the cold record before us does not affirmatively disclose L.L.s asserted defensiveness, annoyance, or body language, it is not contradicted by the record. Thus, we may rely on the presumption that the prosecutor properly relied on these reasons. (See People v. Allen (2004) 115 Cal.App.4th 542, 549.)

Burtley argues that the record provides no basis for the prosecutors striking S.B. on the ground that S.B. was unwilling to serve on the jury due to work commitments or a prospective job interview. Wilson argues that the fact that the prosecutor did not peremptorily challenge Juror No. 3 whose hardship request was denied renders insufficient the prosecutors justification for challenging S.B. Assuming, without deciding, that a comparative juror analysis should be conducted for the first time on appeal (see, e.g., People v. Williams, (2006) 40 Cal.4th 287, 312; Avila, supra, 38 Cal.4th at p. 546; People v. Huggins, supra, 38 Cal.4th at p. 232; People v. Jurado (2006) 38 Cal.4th 72, 105; People v. Schmeck (2005) 37 Cal.4th 240, 270; People v. Gray (2005) 37 Cal.4th 168, 189-190; People v. Cornwell (2005) 37 Cal.4th 50, 71), we conclude it is unavailing.

The prosecutors justification was not that S.B. was unwilling to serve on the jury, but that S.B.s statement that he would not be happy if he did not get the job coupled with his having to work after hours and weekends gave the prosecutor concern that S.B. would be distracted with things other than trial, particularly if he were working late at night. This is a perfectly reasonable inference from S.B.s statements and a proper justification for the prosecutors challenge.

We also reject Wilsons attempt at comparative juror analysis to establish that the prosecutors explanation for challenging S.B. was a sham. (See, e.g., Miller-El v. Dretke (2005) 545 U.S. 231, 240-248; Avila, supra, 38 Cal.4th at pp. 545-546.) Juror No. 3, a clinical nurse case manager, stated that if she were not at work, it would be very difficult for others in her office to absorb her work duties. Juror No. 3 also stated that she was divorced and responsible for transporting her 17-year-old son to and from high school on certain days. Juror No. 3s responses to voir dire questions revealed her circumstances and reasons for requesting to be excused for hardship were different from S.B.s and therefore comparative juror analysis does not tend to show prohibited group bias. The trial court was in the best position to evaluate the jurors and the prosecutors justification for challenging S.B. and found that justification legitimate. On the record before us, we have no reason to reach a different conclusion. Defendants Batson-Wheeler motion was properly denied.

II. Admission of Alleged Profile Evidence

Defendants next contend the court erred in admitting inadmissible profile evidence.

Prior to trial Burtley moved in limine to exclude profiling testimony by Prasad regarding his suspicions that defendants were casing the Palo Alto bank. Burtley argued Prasads testimony was based on hearsay and constituted inadmissible lay opinion, an impermissibly tainted identification and inadmissible profiling evidence.

Evidence Code Section 402 Hearing

At an Evidence Code section 402 hearing, Prasad testified about training he received in recognizing potential bank robbers. He explained that on a quarterly basis he was required to watch videos regarding identification of bank robbers, check fraud or anything that could happen within the bank. He was taught to notice his surroundings, to make eye contact and talk with someone who is loitering around the bank, and look out for anything unusual. Prasad said that based on his training, it was really suspicious to have somebody come in, stand in line, and just walk outside of the door.

Burtleys counsel argued that Prasads training regarding identifying potential bank robbers was inadmissible profile evidence that could not be used to prove criminal conduct or criminal intent. Counsel also argued that the evidence was irrelevant and more prejudicial than probative. (Evid. Code,  352.) The prosecutor argued the challenged evidence was relevant because it explained why Prasad notified police about the suspects. Wilsons counsel argued that Prasad could not offer an opinion that the men were casing the bank, but could describe their conduct.

The court concluded that Prasad could not speculate . . . or offer opinions with regard to mental states of the two individuals [he] saw, but could describe what he observed as a percipient witness. The court said it would not make a blanket ruling regarding the term casing and noted that counsel reserved the right to object when Prasad testified.

Prasads Trial Testimony

At trial, Prasad testified he was taught if somebodys just kind of moping around the branch, just not doing anything, kind of looking inside, that just causes some suspicion in us on why they just are, you know, sitting around. [] Weve always been taught if there is something we are suspicious of [we should] go ahead and make eye contact with the person. Most likely at this point if we are making eye contact, the person wont really look into your eyes and they wont really talk to you about much. He described his training as [b]asically on a quarterly basis we watch videos and have [a] meeting around, . . . what to look for. Prasad said that at the time he went outside to contact the two men, he was aware only that the San Mateo bank had been robbed by two men, but did not know what they looked like.

A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) However, [n]ot all testimony concerning general patterns of criminal activity is profile testimony. . . . [] [B]ackground testimony is not profile evidence and does not specifically address the guilt or innocence of the defendant. Instead, it enables the jury to understand other evidence that does address guilt or innocence. (People v. Lopez (1994) 21 Cal.App.4th 1551, 1556.)

Recently, in People v. Smith (2005) 35 Cal.4th 334, 357, our Supreme Court explained that characterizing evidence as  profile evidence  is not a separate ground for excluding evidence. Instead, the evidence is inadmissible only if it is either irrelevant, lacks foundation, or is more prejudicial than probative. (Ibid.) Smith also explained, Profile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt. (Id. at p. 358.)

Defendants argue that the facts found suspicious by Prasadthat defendants loitered around and looked into the bank, asked about the banks closing time, looked around while standing in line, left without doing a transaction and walked by the bank parking lot without getting into a car, were not in themselves incriminating and were only incriminating because Prasad thought they were. Burtley also argues the court erred in concluding that Prasads testimony regarding his training in recognition of bank suspects was relevant. Alternatively, Burtley argues that assuming Prasads testimony constituted admissible other crimes evidence under Evidence Code section 1101, subdivision (b), its prejudicial effect far outweighed its probative value, and the court erred in failing to exclude the evidence under Evidence Code section 352. In particular, he asserts that Prasads subjective opinion that defendants conduct inside the Palo Alto bank was suspicious had little probative value in determining the defendants guilt or innocence in the charged San Mateo bank robbery, but had a high risk of prejudice and confusion of the issues.

The People respond that Prasads testimony was not profile evidence and, instead, was merely background information explaining Prasads and other bank employees actions that day, and the factual events leading up to [defendants] arrests. They also argue that Prasads testimony regarding his training to be attentive to bank loiterers who transact no business was very general modus operandi evidence that bore on the reliability of his observations.

We first note that although Burtleys in limine motion argued Prasads testimony was based on hearsay and constituted inadmissible lay opinion, and an impermissibly tainted identification, defendants did not press for a ruling on those grounds below and consequently, they are waived.   [W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.  (People v. Obie (1974) 41 Cal.App.3d 744, 750, quoting Witkin, Cal. Evidence (2d ed.1966)  1302, p. 1205, disapproved on another ground in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4; accord, People v. Brewer (2000) 81 Cal.App.4th 442, 459; People v. Rhodes (1989) 212 Cal.App.3d 541, 554.) [] This is an application of the broader rule that a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent. [Citations.] (People v. Braxton (2004) 34 Cal.4th 798, 813-814.)

We agree with the People that the evidence at issue was not profile evidence. The testimony regarding Prasads training was background evidence that clarified why he was so attentive to defendants conduct in the bank, reinforcing the accuracy of his observations. Under Evidence Code section 1101, subdivision (b), the evidence of defendants conduct was highly probative regarding the identification of the robbers of the San Mateo bank, because defendants were wearing nearly the identical clothing as that worn by the San Mateo bank robbers two days before and the auto burglars the day before. In addition Pacis identified the gun recovered from Wilson as the gun used during the robbery of the San Mateo bank. Finally, there was not a substantial danger of undue prejudice because the circumstances of the Palo Alto bank incident were far less inflammatory than the circumstances of the charged San Mateo bank incident. (See People v. Yovanov (1999) 69 Cal.App.4th 392, 406.)

III. The Motion to Sever Was Properly Denied

Burtley contends the court erred in denying his motion to sever the trial on the count 1 bank robbery charge from the trial on the remaining vehicle burglary and possession of stolen property counts.

Prior to trial, Burtley moved to sever trial of the robbery count from the other two counts on the ground that the identification evidence supporting the bank robbery charge was extremely thin, while the evidence of the auto burglary was far stronger. Thus, he argued introduction of evidence of the auto burglary in the bank robbery trial would prejudice the jury. Conversely, he argued that because the bank robbery charge was highly inflammatory, if the jury was inclined to convict him of the bank robbery, it would be more likely to convict him of auto burglary regardless of the evidence supporting the auto burglary. Finally, he argued the evidence would not be cross-admissible in separate trials because it involved separate victims and separate incidents.^[5]The court denied the motion to sever.

  The law prefers consolidation of charges.  [Citations.] An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. ( 954.) (People v. Smith (2007) 40 Cal.4th 483, 510.)

The denial of a severance motion is reviewed for abuse of discretion. (People v.Smith, supra, 40 Cal.4th at p. 510.) To demonstrate that a denial of severance was reversible error, defendant must  clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.  (People v. Davis (1995) 10 Cal.4th 463, 508, quoting Frank v. Superior Court (1989) 48 Cal.3d 632, 640.) (Ibid.) However, even if a trial courts severance ruling was correct at the time it was made, we must reverse the judgment if the defendant establishes that joinder actually resulted in   gross unfairness amounting to a denial of due process. [Citation.] (People v. Mendoza(2000) 24 Cal.4th 130, 162.)

Refusal to sever charges on a defendants motion may be an abuse of discretion where:  (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case, or with another weak case, so that the spillover effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty.  [Citations.] (People v. Smith, supra, 40 Cal.4th at pp. 510-511.)^[6]

Burtley argues the evidence of the San Mateo bank robbery would not have been cross-admissible in a trial on the auto burglary because the San Mateo bank robbery occurred on a different day, in a different community and involved different percipient witnesses. In addition, Burtley argues the red Mustang described by witnesses to the San Mateo bank robbery did not match the description of Dahls burglarized car or Wilsons car in which Dahls fanny pack was found. However, even assuming that the prosecution did not establish cross-admissibility, the absence of a showing of cross-admissibility does not require severance. ( 954.1; People v. Smith, supra, 40 Cal.4th at p. 571.)

Burtley also argues that the San Mateo bank robbery, perpetrated by pointing a gun at the bank teller and theft by means of force or fear, was a more inflammatory crime than the auto burglary, which merely involved breaking a car window and removing the car owners property while the owner was not present. But, it is insufficient to show simply that the robbery was more inflammatory than the auto burglary. Smith sets out a different standard: The robbery must be unusually likely to inflame the jury against the defendant[s]. (People v. Smith, supra, 40 Cal.4th at p. 510.) And, it is not. This is not a situation where a robbery victim was killed or injured or a shot was fired. Both the San Mateo bank robbery and the auto burglary fell within the same class of crimes, in that they shared the common characteristic of wrongful taking of anothers property. (People v. Koontz (2002) 27 Cal.4th 1041, 1074-1075.) Though a crime of violence, this bank robbery was not unusually inflammatory.

Finally, Burtley argues that [i]n addition to the inherent weakness of the eyewitness testimony in the [San Mateo] bank robbery, no one identified [him] as a perpetrator in the automobile burglary, and his guilt was based largely on his later association with Wilson, who was found in possession of the gun used in the bank robbery and the fanny pack taken in the auto burglary. Thus, Burtley argues aggregation of the bank robbery and auto burglary evidence created an impermissible spillover effect, altering the outcome of both charges.

We disagree. This was not a prosecution that combined a strong case with a relatively weak case. Substantial evidence connected Burtley with both the bank robbery and the auto burglary. A red Mustang convertible with a tan top registered to Burtley matched the description of the car seen by Caropepe and Kerns in the San Mateo bank parking lot just before the bank robbery. Pacis identified Burtley at trial as Wilsons accomplice in the bank robbery. In addition, Hollingsworth and Tipsword identified defendants as the two men they saw on July 12, following the auto burglary. Further, these witnesses saw a car leaving the alley that looked like the car registered to Wilson, in which Dahls fanny pack was found.

IV. Substantial Evidence Supports Burtleys Conviction of Possession of Stolen Property

Burtley next argues that there was insufficient evidence that he was in constructive possession of Dahls fanny pack found in Wilsons car and, therefore, his conviction for possession of stolen property must be reversed.

In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Hillhouse (2002) 27 Cal.4th 469, 496, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)

To sustain Burtleys conviction for receiving (or possessing) stolen property, the prosecution had to prove: (1) the property was stolen; (2) Burtley knew the property was stolen; and (3) Burtley had possession of the stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 223.) Possession of stolen property may be actual or constructive and need not be exclusive. (Ibid.) Constructive possession exists where a defendant maintains some control or right to control [property] that is in the actual possession of another. (People v. Morante (1999) 20 Cal.4th 403, 417.) It is sufficient if Burtley acquired some control or dominion over the stolen property; physical possession is not a requirement. (Land, at pp. 223-224.) Although dominion and control cannot be inferred from mere presence or access, the necessary additional circumstances may be slight. (Id. at p. 225.)

Burtley argues there was no evidence that he participated in the entry of Dahls car or ever had actual possession of Dahls fanny pack. He asserts that the discovery of the fanny pack in Wilsons car after his and Wilsons arrest was insufficient to establish that he had constructive possession of the fanny pack. Burtley relies on People v. Zyduck (1969) 270 Cal.App.2d 334, which the People argue is factually distinguishable. In Zyduck the defendant was a passenger in the front seat of a car stopped by police. A stolen chain saw was recovered from the back seat. No other evidence was presented to establish the defendants possession of the chain saw. The Court of Appeal rejected the Peoples assertion that the defendants mere presence in the car owned and driven by another in which the stolen chain saw was readily visible was enough to establish the defendants possession of the chain saw. Opportunity of access to a place where contraband is stored is not enough, by itself, to establish possession [citation.]. Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of these elements. Of course, the necessary additional circumstances may, in some fact contexts, be rather slight. (Id. at pp. 335-336.)

The People respond there was overwhelming circumstantial evidence of Burtleys constructive possession of the stolen fanny pack. They point to the following: Hollingsworth and Tipsword identified defendants as the men they saw fleeing the scene immediately after they heard glass breaking outside the bar. Dahls car window was broken and his fanny pack was missing from inside the car. Hollingsworth and Tipsword chased the men into the alley and then saw a car drive away which they later said looked like Wilsons car. Dahls fanny pack was found inside Wilsons car. Defendants were detained outside the Palo Alto bank by police approximately an hour after the burglary of Dahls car. Wilsons car was parked across the street from the Palo Alto bank. The People argue that circumstantial evidence established that defendants were together when Dahls car was burglarized and, thereafter, fled together in Wilsons car, where the stolen fanny pack was found. They assert that from this circumstantial evidence the jury could reasonably infer that Burtley was in constructive possession of the recently stolen fanny pack.

Burtley rejoins that even if he had knowledge of the theft of the fanny pack from Dahls car, there was no evidence establishing that he participated in the theft. He argues it is equally plausible that he saw Wilson break into [Dahls] car and fled with Wilson without ever having control, or the right to control, the stolen property. Burtleys rejoinder misperceives our task in conducting substantial evidence review. If the circumstances reasonably justify the trial courts findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mosher (1969) 1 Cal.3d 379, 395.)

Based on the record before us, the jury could reasonably conclude Burtley and Wilson committed the burglary of Dahls car and absconded with Dahls stolen fanny pack in Wilsons car, thus establishing Burtleys constructive possession of the fanny pack.

V. The Sentence Imposed Was Valid

Burtley was sentenced to 16 years four months in state prison. He contends the courts imposition of the aggravated term for the bank robbery and consecutive sentences violated his federal constitutional rights to due process and jury trial.

In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court interpreted the Sixth Amendment to the United States Constitution to require that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington(2004) 542 U.S. 296, 301-305.) In Cunningham, the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham), overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) 549 U.S. ___ [127 S.Ct. 1210].) Finally, in People v. Black (2007) 41 Cal.4th 799, 813 (Black II), our Supreme Court held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three avalable options does not violate the defendants right to a jury trial.

Upper Term

The court found the following aggravating factors in imposing the upper five-year term (doubled under the three strikes law) on the bank robbery: (1) Burtley engaged in violent conduct indicating a serious danger to society; (2) Burtleys prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness;^[7](3) Burtley served a prior prison term for a prior bank robbery; (4) Burtley was on federal parole at the time this crime was committed; and (5) Burtleys prior performance on probation or parole was unsatisfactory. The court found the aggravating circumstances outweighed the mitigating circumstances,^[8]justifying imposition of the upper term.

Factors (3) and (4) rendered Burtley eligible for the upper term sentence imposed. (Black II, supra, 41 Cal.4th at pp. 818-819.) The probation report reflects that Burtley had been convicted of committing an armed bank robbery in Indiana in 1992 and received a prison sentence of 106 months. Following completion of this sentence he was placed on federal probation and, at the time of the commission of the charged offenses, he was being supervised actively on federal probation.^[9] The probation reports recitation of [Burtleys] criminal history was not challenged by [Burtley] in the trial court though Burtley was informed in advance of sentencing that the prosecution was relying on these factors in recommending the aggravated term. This recitation provides an adequate basis for the trial courts factual findings regarding factors (3) and (4). (Id. at p. 818, fn. 7.) Finally, Burtley is not entitled to a jury finding on these two recidivist factors; the trial court may properly decide each. (Id. at pp. 818-820 & fn.8.) Therefore Burtley was not entitled to the middle term, and the trial courts imposition of the upper term sentence did not violate his Sixth Amendment right to a jury trial.

Consecutive Sentences

The court stated it was imposing a consecutive eight-month term (one-third the midterm, doubled under the three strikes law) on the auto burglary because the auto burglary was independent of the bank robbery, having been committed on a different day, time and place. In Black II, the court reaffirmed its conclusion in Black I that the decision to impose consecutive sentences does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I, supra, 35 Cal.App.4th at p. 1264.) Accordingly, we again conclude that defendants right to a jury trial was not violated by the trial courts imposition of consecutive sentences . . . . (Black II, supra, 41 Cal.4th at p. 823.) Burtleys argument to the contrary fails.

Disposition

The judgments are affirmed.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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^[1] All undesignated section references are to the Penal Code.

^[2] Wilson and Burtley are collectively referred to as defendants.

^[3]Batson v. Kentucky(1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258.

^[4] The parties stipulated that Burtleys photograph was included in the second photo lineup shown to Pacis.

^[5] Wilson joined in the motion below but does not raise the issue on appeal.

^[6] The parties concede that the death penalty factor is inapplicable because none of the charges carried the death penalty.

^[7] Burtleys criminal history includes a 1992 armed bank robbery with use of a firearm and a 1990 conviction for sale of crack cocaine.

^[8] The court did not find any mitigating factors and the probation report contained no mitigating factors.

^[9] That the probation report refers to federal probation supervision while the trial court referred to federal parole is of no consequence. Either one would justify the upper term. California Rules of Court, rule 4.421(b)(4).