P. v. Smith

Filed 9/4/07 P. v. Smith CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Timothy Smith was convicted after jury trial of second degree robbery (Pen. Code, 211, 212.5, subd. (c)),[1]second degree burglary ( 459, 460, subd. (b)), and two counts of attempting to dissuade a victim or witness ( 136.1, subd. (b)(1)). Defendant admitted that he had six prior strikes ( 1170.12) and three prior serious felonies ( 667, subd. (a)), and that he had served three prior prison terms ( 667.5, subd. (b)). The trial court sentenced defendant to the indeterminate term of 50 years to life consecutive to the determinate term of 30 years. The court also ordered defendant to pay various fees and fines, including a restitution fine and a suspended parole revocation fine, each in the amount of $10,000.

On appeal defendant contends that: (1) he was denied a fair trial when a prosecution witness testified that he was homeless; (2) he was deprived of due process as he was subjected to an impermissibly suggestive pre-trial identification procedure; (3) the judgment must be reversed due to the cumulative prejudice from the above errors; (4) the trial court erred by failing to stay under section 654 the term imposed on one of the dissuading-a-witness counts; and (5) the abstract of judgment must be modified to reflect the correct amount of the ordered restitution and parole revocation fines. We will order the abstract of judgment modified to conform to the ordered restitution and parole revocation fines, and affirm the judgment as so modified.

Defendant has also filed a petition for writ of habeas corpus, alleging ineffective assistance of trial counsel. We have disposed of the petition by separate order filed this date. (See California Rules of Court, rule 8.264(b)(4).)

BACKGROUND

Defendant was charged by first amended information with second degree robbery ( 211, 212.5, subd. (b); count 1), second degree burglary ( 459, 460, subd. (b); count 2), and two counts of attempting to dissuade a victim or witness ( 136.1, subd. (b)(1); counts 3 & 4). The information further alleged that defendant had seven prior strikes

( 1170.12) and four prior serious felonies ( 667, subd. (a)), and that he had served three prior prison terms ( 667.5, subd. (b)).

In his motions in limine, defendant requested that the court exclude pursuant to Evidence Code section 352 any mention of defendants poverty. He also requested that the court exclude the victims out-of-court identification, as well as any later in-court identification (preliminary hearing) on the grounds that they were unduly suggestive. Defendant further requested bifurcation of trial on the alleged priors. The court granted defendants requests to exclude any mention of defendants poverty and to bifurcate trial on the priors, but denied his motion to exclude the victims out-of-court identification.

The Trial Evidence

On July 11, 2005,Paul J. Gonzalez and his fiance Monika N. lived on South Morrison Street in San Jose in a two-bedroom home that had a detached garage in the back. Gonzalez was still up after midnight, doing some sanding and painting in the front bedroom that faces the street and driveway. He had left his garage door open and the garage light on. Monika was in the back bedroom.

Gonzalez heard some noises, and he needed a tool that was in the garage, so he decided to check out the noises. He went out the front door and headed up the driveway. He could see defendant walking down the driveway toward the street. Gonzalez did not know defendant, but thought that he looked like an uncle who had passed away. Defendant was carrying a radio/CD player and a toolbox that Gonzalez kept in his garage. Gonzalez asked defendant what he was doing. Defendant told Gonzalez to ignore him and leave. Gonzalez said, you cant do that. Those are I believe those are my stuff. Defendant responded, what are you going to do about it? Why dont you take them from me? Gonzalez yelled for somebody to call the police. Defendant took a step toward Gonzalez. Gonzalez took a step back and then a step forward, and he and defendant kind of did a back-and-forth motion. Monika, who had come outside through the front door, yelled to Gonzalez that she was going to call 911. Gonzalez told her to go back inside.

Defendant walked past Gonzalez toward the street and put the radio/CD player and toolbox down. He said, call the police, and Ill be back to get you, while making a motion as though grabbing something in his belt or waistband. Gonzalez thought defendant might have a gun, so he ran toward his garage without turning his back to defendant. Monika went back inside, grabbed a phone, came back to the front porch, and again said that she was going to call 911. Defendant looked at Monika and said, If you call the police, Im going to come back and get you, while again making a motion as though reaching for something. Monika called 911. Defendant picked up the radio/CD player and toolbox and ran toward The Alameda.

Monikas 911 call was made at 12:23 a.m. Officers arrived at the home within minutes and Gonzalez gave them a description of defendant, stating that he was an older white man with a moustache who was wearing two shirts. Within another five minutes, Officer Jarod Johnson drove Gonzalez to a location about one-half mile away so that he could possibly identify someone. The officer admonished Gonzalez that this may or may not be the subject that robbed him. Gonzalez saw defendant standing alone in the middle of the street, shirtless and in handcuffs, with a spotlight on him and several uniformed officer near him. Gonzalez immediate[ly] identified defendant as the person who had taken his radio and toolbox. Officers then showed him a radio and toolbox, and he identified them as his.

Officer Ryan Brennan received a report of an interrupted burglary at 12:24 a.m. on July 11, 2005. The suspect was described as a white male in his 40s, five feet ten inches tall, approximately 175 pounds, with a shaved head. Brennan responded to The Alameda and Morrison at 12:25 a.m. and drove around the area. As he was driving east on Julian, approaching Stockton, he saw defendant. Defendant was not wearing a shirt but he otherwise matched the suspects description. The officer advised dispatch that he intended to stop defendant.

Defendant looked in Officer Brennans direction, immediately turned around, and started jogging away. Brennan turned on his overhead lights, pulled up close to defendant, and told him to stop. Brennan got out of the patrol car and handcuffed defendant. At 12:27 a.m., Brennan advised dispatch that he had defendant in custody. The distance from Gonzalezs home to where Brennan detained defendant is .4 miles.

Officer Brennan searched defendant, and removed rolling papers from his pockets, but he did not find any weapons. He reported to dispatch that defendant did not have any of the missing items with him and that defendant was not wearing a shirt. He had defendant stand in the street so that he could be seen by any witnesses. After Gonzalez identified defendant, Brennan took him to booking and other officers did not continue looking for a suspect.

Officer David Kirby received a report of a burglary at 12:24 a.m. on July 11, 2005. After responding to the area, he heard a report that a suspect had been detained, but that he did not have the missing items with him and he was not wearing a shirt. Kirby walked the path the victims stated the suspect followed in order to look for any discarded items. In the front of the second house north of the victims home, on the same side of the street, Kirby saw a portable CD player and a toolbox in some ivy next to the sidewalk. Kirby photographed the items and seized them. He then began looking for some clothing items. Because defendant was detained northeast of the intersection of Morrison and The Alameda, the officer walked east on The Alameda to the next street, Rhodes, and then walked north on Rhodes. At Rhodes Court the officer found a pinstriped white dress shirt on the ground next to the sidewalk. The shirt had long sleeves, but the sleeves were rolled up. The officer photographed it. Monika was transported to the location and she identified the shirt as being the one defendant had been wearing. Kirby seized the shirt, searched it, and found rolling papers in the pocket. He did not continue on to where defendant was detained.

The Verdicts, Findings on the Priors, and Sentencing

While the jury was deliberating, and outside its presence, defendant waived his right to a jury trial on the prior allegations. The jury found defendant guilty of all the offenses as charged in the information. On March 1, 2006, defendant admitted six of the alleged prior strikes ( 1170.12), three of the alleged prior serious felonies ( 667, subd. (a)), and the three prior prison terms ( 667.5, subd. (b)), and the court found the remaining alleged priors to be not true. On June 23, 2006, the court denied defendants request to strike the priors and sentenced defendant to the indeterminate term of 50 years to life consecutive to the determinate term of 30 years. The court also imposed various fines and fees, including a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b), and a suspended parole revocation fine of the same amount pursuant to section 1202.45.

DISCUSSION

Testimony about Homelessness

Prior to trial, defendant requested that the court exclude at trial any mention of defendants poverty. The prosecutor advised the court that [a]s to whether [defendant] does or does not have funds or [is] impoverished, I have no intention of introducing that. And I will admonish my witnesses of that fact. Finding that the prosecution did not oppose defendants request, the court granted it.

At trial, during the prosecutors examination of Officer Kirby, he asked the officer about the shirt he found on Rhodes Court:

[KIRBY]: It was a button-up shirt; like a dress shirt with a collar, button-up shirt, pinstripes.

[THE PROSECUTOR]: Short or long sleeve?

[KIRBY]: It was long-sleeved, and the sleeves were rolled up.

[THE PROSECUTOR]: Did it appear as though it had been sitting there for awhile?

[KIRBY]: No.

[THE PROSECUTOR]: Did it seem dirty?

[KIRBY]: Probably somewhat dirty, but the subject in question was a homeless individual, so . . .

[THE PROSECUTOR]: Was it wet?

[KIRBY]: I dont believe it was wet.

[DEFENSE COUNSEL]: Objection, Your Honor. Calls Your Honor, we are going to object. Lack of foundation. Move to strike.

THE COURT: The objection is sustained. And the last portion of the answer is stricken. Disregard it, please.

[THE PROSECUTOR]: Was the shirt, did it appear to be wet?

[KIRBY]: No.

[THE PROSECUTOR]: Was it underneath things, or was it sitting all by itself?

[KIRBY]: It was sitting on the ground, not under anything.

After the cross-examination and redirect examination of Officer Kirby, and the direct examination of Gonzalez, defense counsel moved for a mistrial based on the reference with one of the officers that the defendant was homeless. Counsel argued that the testimony violated defendants federal constitutional right to a fair trial. The prosecutor argued that the testimony was not so harmful to the case or the cause as to warrant a mistrial. The jury was told to disregard it. We immediately moved on. No emphasis was placed. The court denied the motion for mistrial, stating: The objection was sustained. The motion to strike was granted. And the jurors were advised to disregard the statements.

Defendant now contends that he was denied his federal constitutional right to a fair trial due to the testimony that he was homeless. He argues that evidence of his poverty was inadmissible and prejudicial, and that the trial courts admonition to the jury to disregard the evidence was insufficient to cure the prejudice.

A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citations.] (People v. Hines (1997) 15 Cal.4th 997, 1038.) Ultimately, the question here is whether it is reasonably probable that the jury would have reached a result more favorable to defendant had it not heard evidence of defendants homelessness. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Hogan (1982) 31 Cal.3d 815, 854, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836; People v. McDermott (2002) 28 Cal.4th 946, 999.)

In People v. Allen (1978) 77 Cal.App.3d 924, a case cited by defendant, the appellate court determined that the trial court erred in denying the defendants motion for mistrial because a witnesss volunteered statement that the defendant was on parole was incurably prejudicial. The appellate court noted the general rule that [a]n improper reference to a prior conviction may be grounds for reversal in itself [citations] but is nonprejudicial in the light of a record which points convincingly to guilt. . . . [Citation.] (Id. at p. 935.) The court determined that the volunteered reference to parole necessitated a mistrial because [a]n examination of the record reveals an extremely close case in which the jury had to make its fact determination based upon the credibility of the [defendant] and his witnesses and on the credibility of the prosecutions witnesses. In the light of these facts, it is reasonably probable that a result more favorable to [the defendant] would have been reached had the prejudicial information of [the defendants] parole status not been divulged to the jury. (People v. Watson[, supra,] 46 Cal.2d 818, 836.) (Ibid.)

In the case before us, the evidence against defendant was strong. Gonzalez identified defendant as the perpetrator shortly after the incident, and testified that at the time he first saw defendant, defendant reminded him of his uncle who had passed away. Gonzalez and Monika N. both identified defendant at trial. The items Gonzalez reported taken, as well as a shirt Monika identified shortly after the incident as having been worn by the perpetrator, were found on the ground on the route between the robbery scene and where defendant was detained. And, defendant was shirtless when he was detained just .4 miles from the robbery scene within minutes of the reported robbery.

In addition, defendants credibility was not directly at issue here because he did not testify. The isolated reference to defendants homelessness was not emphasized by argument or other testimony, and the trial court struck the testimony and instructed the jury to disregard it. We presume the jury followed the trial courts admonition. (People v. Osband (1996) 13 Cal.4th 622, 718-719.) Thus, the testimony could not have been used to establish a motive to commit robbery or theft. (People v. McDermott, supra,28 Cal.4th at p. 999.) Under these circumstances, it is not reasonably probable that the jury would have reached a more favorable verdict had it not heard the challenged testimony (People v. Watson, supra, 46 Cal.2d at p. 836), and the trial court did not abuse its discretion in finding that the testimony was not incurably prejudicial. (People v. Hines, supra, 15 Cal.4th at p. 1038).

Pretrial Identification

Prior to trial, defendant moved to exclude the victims out-of court identification, as well as any later identification (preliminary hearing) on the grounds that they were unduly suggestive. [Defendant] was initially identified by the male victim during an in-field showing shortly after his detention. Both the male and female victim later identified [defendant] at the preliminary hearing. [T]he male victim (Gonzalez) was taken to the site where [defendant] was detained. Although the identification was done about five to ten minutes after the initial incident of theft and the police admonished the victim, there could have been no question that [defendant] was nonetheless being singled out as the perpetrator. [Defendant] was handcuffed. He was standing in the middle of the street. He had a police car spotlight shining on him. He had several uniformed police officers standing around him, along with marked patrol vehicles. No other people were shown to Victim Gonzalez. Given all of these very suggestive procedures, the identification of [defendant] was unduly suggestive and should be excluded.

At the hearing on the motion, the prosecutor argued: I think factually [defense counsel] and I agree. I think the difference is the interpretation. There is case law that states that these are some of the most reliable identifications that can happen, because they take out the factor of a passage of time. [] In this particular case, the defendant was less than a half a mile from the scene; probably less than 15 minutes. And the victim was brought, the victim was admonished about the purposes of this, the type of showup, and responded, and identified the defendant. [] The value of these types of showups to the police and potentially innocent parties are great. And I dont think that anything the police did marked this defendant as the burglar or the robber. They marked him as someone who was suspected of it, which can be just as important to rule someone out as to rule someone in, which was told, in essence, to Mr. Gonzalez.

The court ruled: In this matter, the court does find that the identification was made shortly after the alleged incident. The victim was properly admonished. The defendant has not met his burden. Accordingly, the motion in limine is denied, . . .

Defendant now contends that he was denied his federal constitutional right to due process because he was subjected to an unduly suggestive pretrial identification procedure. He argues that one-person showups are unduly suggestive, and that the suggestiveness of the procedure employed in his case was greatly enhanced by the fact that he was seen in handcuffs, with a spotlight trained on him, and with several officers standing nearby. He further argues that Gonzalezs identification was unreliable as Gonzalez had a poor opportunity to view the perpetrator, his degree of attention lapsed near the end of the confrontation, and his description of the perpetrator was less than accurate.

Defendant bore the burden below of showing an unreliable identification procedure. (Manson v. Brathwaite (1977) 432 U.S. 98; People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his [or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.] In other words, [i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends. [Citation.] (Ochoa, supra, at p. 412; see also, People v. Kennedy (2005) 36 Cal.4th 595, 608.)

To begin with, [t]he single person showup is not inherently unfair. [Citation.] More important yet as it relates to this case: for a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witnessi.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure. . . . A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police. [Citation.] (Ochoa, supra, 19 Cal.4th at p. 413, fn. omitted; see also People v. Medina (1995) 11 Cal.4th 694, 753; Stovall v. Denno (1967) 388 U.S. 293, 302.)

This court has previously approved of in-field showups in People v. Nguyen (1994) 23 Cal.App.4th 32, at pages 38-39, where we stated: Whether an identification procedure is suggestive depends upon the procedure used as well as the circumstances in which the identification takes place. For example, although [t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned [citations], sometimes exigent circumstances make such procedures necessary. . . . Prompt identification of a suspect who has been apprehended close to the time and place of the offense to exonerate the innocent and aid in discovering the guilty is a valid purpose of conducting a one person showup . . . . [Citations.]

Some details of the in-field showup procedure used in this case that defendant considers unduly suggestive seem inherent in any such procedure. For example, the fact that defendant was handcuffed, and that several officers were standing near him. However, considering all the circumstances of the in-field showup procedure in this case, we conclude that the procedure was not unduly suggestive or unnecessary. (Ochoa, supra, 19 Cal.4th at p. 412.)

Gonzalez was given a neutral admonition prior to participating in the in-field showup. Officer Johnson testified that he told Gonzalez that this may or may not be the subject that robbed him, and that the officer just needed a yes or no response. Gonzalez testified that if the person he saw had not been the person, he would have said so. The officers use of a spotlight on defendant cannot be considered unnecessary considering that the showup occurred after midnight. Gonzalez had a good opportunity to view defendant at the time of the offenses. Although it was after midnight, Gonzalez said that light was on in the garage and that he could see defendant well enough to think that defendant reminded him of his uncle who had passed away. Officer Brennan, who detained defendant, testified that, except for the fact that defendant was not wearing a shirt, he matched the description reported by Gonzalez. The in-field showup occurred within minutes of Gonzalezs original observation of defendant, and Gonzalez immediately identified defendant. When the police are pursuing a fleeing suspect, time is of the essence. It is important that the police establish quickly whether they have detained the correct suspect or must keep looking. The police were not required to wait and place defendant or his photo in a later lineup.

In light of our conclusion that the in-field showup was not impermissibly suggestive, we need not consider whether Gonzalezs identification of defendant during the showup and his and Monikas identification of defendant at the preliminary hearing were nevertheless reliable under the totality of the circumstances. (Ochoa, supra, 19 Cal.4th at p. 412.) As we stated earlier, [i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends. [Citation.] (Ibid.)

Cumulative Prejudice

Defendant contends that the cumulative effect of the two errors alleged above compels a finding of prejudice warranting reversal. As we have found that it is not reasonably probable that the jury would have returned a more favorable verdict had it not heard the challenged testimony and that the pretrial identification procedure used was not unduly suggestive or unnecessary, we find this claim to be without merit.

Section 654 Stay

The jury found defendant guilty of the two counts of violating section 136.1, subdivision (b), as alleged in counts 3 and 4. The amended information alleged that Gonzalez was the victim in count 3 and that Monika N. was the victim in count 4. At sentencing the court imposed consecutive 25-year-to-life terms on counts 1 (second degree robbery) and 4, and ordered the sentences for counts 2 (second degree burglary) and 3 stayed pursuant to section 654. The court stated that the punishment for count 3 was stayed since both of the crimes charged in counts one and three were committed on the same occasion and arose out of the same set of operative facts. The court further found that the consecutive counts encompass separate acts against two separate victims . . . . Defendant contends that the court erred by failing to order the sentence on count 4 stayed. He argues that, when the trial court made its factual finding that [defendant] had only a single criminal intent with respect to the robbery and the dissuasion of Mr. Gonzalez, it also had to necessarily make the same factual finding as to the dissuasion count regarding Monika. This is so because [defendants] final statement was made to both victims.

Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] (People v. Deloza (1998) 18 Cal.4th 585, 591.) [B]ecause the statute is intended to ensure that defendant is punished commensurate with his culpability [citation], its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.)

It is defendants intent and objective, not the temporal proximity of his offense, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] (People v.Harrison, supra, 48 Cal.3d 321, 335.) (People v. Hicks (1993) 6 Cal.4th 784, 789.)

Whether the defendant harbored a single intent is generally a question of fact determined from all the circumstances. (People v.Harrison, supra, 48 Cal.3d at p. 335.) The factual finding of the trial court, whether explicit or implicit, may not be reversed if there is any substantial evidence to support it. [Citations.] (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585; see also People v.Harrison, supra, 48 Cal.3d at p. 335.) Here the trial court impliedly found that defendant had separate criminal intents and objectives in committing the robbery and the attempt to dissuade Monika from reporting the robbery when the court imposed consecutive sentences. We find that substantial evidence supports the trial courts finding.

Gonzalez was facing and stepping toward defendant, who had Gonzalezs radio and toolbox in his hand, when Gonzalez yelled for somebody to call the police. Monika yelled from behind Gonzalez that she was going to call 911. Defendant put the items down and threatened Gonzalez verbally and by making a motion as though reaching for a weapon in his waistband. Gonzalez ran from defendant and Monika went inside. When Monika returned with a phone and again yelled that she was going to call 911, Gonzalez looked at her and threatened her verbally and with a similar hand movement as before. When Monika called 911, defendant picked up the items and fled. This record supports the courts implied finding that defendant had separate criminal intents and objectives when he committed the robbery and when he threatened Monika, a witness to the robbery who was attempting to report it to the police. (Cf. People v. McDaniel (1994) 22 Cal.App.4th 278, 284 [ 136.1 proscribes acts or statements intended to affect or influence a potential witnesss testimony or acts].) We will not set aside the courts imposition of consecutive sentences for the robbery and attempting to dissuade Monika from reporting the robbery.

Restitution and Parole Revocation Fines

At sentencing the court imposed a $10,000 restitution fine pursuant to section 1202.4, subdivision (b), the maximum amount, and a suspended parole revocation fine in the same amount under section 1202.45. The sentencing minutes and the abstract of judgment state that the ordered amounts are $11,000. Defendant contends, and the Attorney General correctly concedes, that the abstract of judgment should be ordered corrected to reflect the amounts ordered. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)

DISPOSITION

The abstract of judgment is ordered modified to state that the amounts of both the restitution fine ( 1202.4, subd. (b)), and the suspended parole revocation fine

( 1202.45) are $10,000. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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[1] Further statutory references are to the Penal Code unless otherwise specified.