Opinion
H046453
01-21-2022
THE PEOPLE, Plaintiff and Respondent, v. AARON ABEYTA et al., Defendants and Appellants.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. Nos. 16CR04351, 16CR04353).
Grover, J.
Defendants Aaron Abeyta and George Karagiannopoulos were tried together on charges of assaulting two men on a street in Santa Cruz. Karagiannopoulos was convicted of robbery, attempted robbery, and two counts of assault with a deadly weapon. Abeyta was convicted on an aiding and abetting theory of assault with a deadly weapon and attempted robbery. Abeyta was placed on felony probation, and Karagiannopoulos was sentenced to four years in prison.
Both defendants argue on appeal that the trial court erred by admitting unduly prejudicial gang evidence, and that insufficient evidence supports one of the assault with a deadly weapon counts because no deadly weapon was used against one of the victims.
Abeyta individually argues that the trial court erred by excluding evidence that Karagiannopoulos possessed cocaine on the night of the incident, and by incorrectly instructing the jury about the duration of attempted robbery. Karagiannopoulos individually argues that insufficient evidence supports the jury's finding that he was the perpetrator; that the trial court should have granted a mistrial after Abeyta's counsel violated an in limine ruling by questioning a witness about Karagiannopoulos possessing cocaine on the night of the incident; and that the trial court committed two errors related to sentencing. Each defendant argues the errors are cumulatively prejudicial.
We conclude that because no deadly weapon was used against one of the victims, there was insufficient evidence to support one assault with a deadly weapon count as to each defendant. We find no other reversible error as to either defendant. We will affirm Abeyta's probation order and Karagiannopoulos's judgment, each modified to strike the assault with a deadly weapon conviction for which there was insufficient evidence.
I. TRIAL COURT PROCEEDINGS
Karagiannopoulos was charged by amended information with the robbery of Daniel Luna (Pen. Code, § 211); the attempted robbery of Victor Zuniga (Pen. Code, §§ 664, 211); two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); two counts of making criminal threats (Pen. Code, § 422); and receiving stolen property (Pen. Code, § 496, subd. (a)). (Unspecified statutory references are to the Penal Code.) The information alleged Karagiannopoulos personally used a dangerous weapon (a knife) in committing the offenses (§ 12022, subd. (b)(1)) and that he had served one prior prison term (§ 667.5, subd. (b)). Karagiannopoulos was also charged with two misdemeanors: possessing a controlled substance (Health & Saf. Code, § 11350), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). Karagiannopoulos admitted the misdemeanors before trial.
Abeyta was charged by amended information with the robbery of Luna (§ 211); the attempted robbery of Zuniga (§§ 664, 211); two counts of assault with a deadly weapon (§ 245, subd. (a)(1)); two counts of making criminal threats (§ 422); and receiving stolen property (§ 496, subd. (a)).
The trial court dismissed the receiving stolen property counts on the prosecutor's motion before trial. (Though that dismissal is not reflected in Abeyta's case, the count was not tried to the jury and the parties agree on appeal that the count was dismissed as to both defendants.) The first trial ended in a mistrial during voir dire. The following evidence was presented during the second trial.
A. Trial Evidence
1. The Robbery
Victor Zuniga testified through an interpreter that he was at a friend's house on Ocean Street in Santa Cruz one night in June 2016 with his friend Daniel Luna. Zuniga drank 10 to 12 beers over the course of three and one-half hours. Zuniga and Luna decided to walk home around 11:15 p.m. As they crossed a street in a crosswalk, Zuniga raised his hand toward a car that was coming toward him "so as to have it slow down." The car passed them, and then turned around and came back toward them.
The car stopped, and the driver "started talking to ... us and calling us Maras." Zuniga clarified that the driver asked them "Are you Maras," with the "English words and then Maras." Zuniga understood "Maras" to be asking either whether they were "Salvadorans or whether [they] belonged to a gang." The driver sounded angry. Zuniga told the driver they were not Maras, and "had nothing to do with anything."
The driver got out of the car with an open knife in his hand. He walked to Luna, who was 10 to 12 feet away from Zuniga. The passenger got out of the car and stood in front of Zuniga. The driver swung the knife toward Luna and took his wallet and other belongings. Zuniga did not feel like he could leave or help Luna because the passenger was next to him. The passenger never spoke to Zuniga.
The driver then walked over to Zuniga. The driver was still holding the knife in his right hand, and stood about two feet from him. The driver told Zuniga to "give him my things." Zuniga tried to hand the driver some of his belongings, but the driver knocked them out of his hands onto the street. Zuniga did not offer the driver his wallet because it contained money and his identification card. The driver punched Zuniga in the right side of his face. The driver and passenger then drove away without taking any property from Zuniga. Zuniga and Luna lingered in the area for a few minutes to see if Luna's wallet was on the ground, but ran away when the car came back toward them. They called the police. Zuniga said he felt scared throughout the incident, and described the driver as more aggressive than the passenger.
Zuniga could not identify either defendant at trial. He described the driver at trial as having been a white male, 175 centimeters tall (roughly five feet nine inches), about 30 years old, with a mustache. Zuniga testified that the passenger was a light-skinned male ("[b]etween Hispanic and white"), 170 to 175 centimeters tall, with "very little hair" or a shaved head. On cross-examination, Zuniga repeatedly stated that he could not remember many of the statements he had made to various officers and investigators over the course of the investigation.
The parties stipulated that at the time of the robbery Karagiannopoulos was a "Caucasian of Greek" descent who was five feet nine inches tall, 175 pounds, and 34 years old.
Santa Cruz Police Department Officer Thomas Abarca testified that around 12:30 a.m. he received a dispatch regarding an armed robbery. The dispatch described the suspects as a "white male and an Hispanic male leaving the area in an older white Honda after taking the victim's wallet at knife point." Officer Abarca found Zuniga and Luna on the side of the road by their residence talking to Santa Cruz Police Department Officer Miguel Duarte, who is bilingual. Zuniga and Luna were "excited and very frightened." Abarca questioned the victims separately, with Duarte serving as a translator. The victims provided nearly identical descriptions of the two suspects that night. They described the driver as a "light-skinned Hispanic or white male wearing jean shorts and a black T-shirt, clean shaven, and thin." They described the passenger as a "Hispanic male, 20 to 25 years old, wearing a black T-shirt with silver on it and light checkered shorts" and possibly a thin beard. They described the car as an "older white car, possibly a Honda."
Abarca testified that Zuniga heard both the driver and the passenger ask him, "what do you claim?" The passenger asked the question in Spanish, and Abarca could not recall if Zuniga specified whether the driver asked the question in English or Spanish. Duarte testified that there are many different ways to say "what do you claim" in Spanish. Duarte confirmed on cross-examination that had either victim used the word "Mara," he would have told Abarca that that word was used instead of translating it into something else. Zuniga told Abarca that he presented some of his belongings to the driver when the driver demanded them because he was afraid of the driver who had swung a knife at Luna. (The trial court excluded Luna's statements to Abarca under the confrontation clause because Luna did not testify at trial.)
An employee who worked at a convenience store near the location of the robbery identified both defendants at trial as having come into the store after midnight one night in June 2016. Both men brought merchandise to the counter, and Karagiannopoulos tried to pay using a $100 bill. The employee told them he could not accept a bill that large so late at night, Karagiannopoulos crumpled up the money back into his pocket, and the pair left. A police officer arrived 15 to 30 minutes later inquiring about the two men.
2. Traffic Stop and Arrest
A CHP Officer testified that he was on patrol the night of the robbery when he received a dispatch from the Santa Cruz Police Department seeking help to locate an older "Honda sedan with two males." He saw a car matching that description near the intersection of Water and Ocean Streets in Santa Cruz. The car ran a red light and the officer activated his lights and siren to initiate a traffic stop. The suspect car was slow to yield, and eventually turned onto a side street and stopped. The CHP officer approached the passenger side of the car as his partner approached the driver's side. The testifying officer asked the passenger (whom he identified at trial as Abeyta) for his identification. Abeyta rolled up his window while looking at his phone. Santa Cruz Police Department officers arrived about a minute later and ordered the occupants out of the car. The CHP officer remained at the car after the suspects got out, and retrieved a knife that had been underneath Abeyta in the middle of the passenger seat.
Santa Cruz Police Department Officer Dominique Hohmann had joined the pursuit of the white Honda. Hohmann parked and walked up to the driver's side door with one of the CHP officers. The driver (identified by Hohmann at trial as Karagiannopoulos) was agitated, hostile, and uncooperative. He was flailing his arms and raised his voice. Hohmann eventually arrested and searched Karagiannopoulos, discovering $1,547 in his pocket. Abeyta's counsel asked Hohmann on cross-examination, "You also searched Mr. Karagiannopoulos and found cocaine in his pocket." The proceedings were interrupted before Hohmann could answer based on an in limine ruling that evidence about cocaine possession the night of the robbery would not be admitted. The jury was admonished to disregard the question and the issue of Karagiannopoulos's cocaine possession entirely.
Another police officer who responded to the scene recovered a wallet from the driver's side floorboard after Karagiannopoulos got out of the car. Several cards in the wallet had Luna's name on them. The wallet and $300 in cash were eventually returned to Luna by the police.
An officer drove Zuniga to look at two men. He identified one of the men at the show-up, but gave inconsistent statements about the individual he identified: Zuniga testified at trial that he identified one of the men as having been the passenger, but he also stated, both at trial and in a statement to a defense investigator, that he had identified the driver. He clarified at trial that the person he identified was in fact the passenger. The officer who accompanied Zuniga at the show-up testified at trial that Zuniga had identified Abeyta as the passenger.
3. Karagiannopoulos's Post-Arrest Statements
Officer Hohmann drove Karagiannopoulos to the county jail. Karagiannopoulos waived his Miranda rights and answered questions from the officer. (Miranda v. Arizona (1966) 384 U.S. 436.) A recording of the interrogation was admitted into evidence and played for the jury. Karagiannopoulos stated he had no idea why he was charged with robbery, assault with a deadly weapon, and other crimes. He claimed to have no idea whose wallet was found in the car he was driving, or how it got there. He stated that the cash in his pocket was "pretty much [his] whole life savings." He stated the car belonged to his father, and that he had been driving it that day to take his son to a baseball game. Asked why he robbed someone at knife point, Karagiannopoulos responded: "I think that's just an insinuation of some ... That's - sounds kind of preposterous to me."
4. Gang Expert Testimony
A district attorney's office inspector (a former police officer) testified as an expert about "gang culture." The prosecutor asked the gang expert what is meant by someone asking, "what do you claim?" The gang expert responded, "In the gang culture, when somebody asks what do you claim it means -- verbatim it means what gang are you in. But it has been my experience that there's no correct answer to that question and it's more of a challenge and it's usually followed by a violent crime." The expert testified he had been involved with over 40 investigations involving "violent crimes" that had been preceded by that question, including "shootings, stabbings, group assaults." Asked the significance of being asked that question, the expert testified that it is "essentially a challenge. That's well documented and well known amongst gang members that I have investigated in this county. And, again, it's a challenge and a question to which there is not a lay [sic] correct answer. It's generally what somebody says right before a fight happens." The expert stated that non-gang members generally respond by saying they are from nowhere or do not claim anything. Asked what had happened in other cases when a non-gang member responded in that fashion, the expert stated, "I can remember a very specific time when in Watsonville some Poorside gang members asked a non-gang member that question." The expert continued, "the guy said he wasn't from anywhere, which means I'm not a gang member. And they chased him down to the front steps of the police department and they stabbed him in Watsonville." The trial court overruled defendants' Evidence Code section 352 objections to that testimony.
B. Verdicts and Sentencing
The trial court granted defendants' motions for judgment of acquittal (§ 1118.1) as to the criminal threats counts after the prosecution rested.
The jury found Karagiannopoulos guilty of robbery, attempted robbery, and two counts of assault with a deadly weapon. The jury found true deadly weapon special allegations as to all four counts. The jury found Abeyta guilty of attempted robbery and assault with a deadly weapon (both counts with Zuniga as the victim). The jury found Abeyta not guilty of robbery and assault with a deadly weapon (the counts with Luna as the victim).
Karagiannopoulos was sentenced to four years in prison, consisting of the middle term of three years for robbery plus one year consecutive for one of the assault with a deadly weapon counts. Imposition of sentence was suspended as to Abeyta and he was placed on formal probation.
II. DISCUSSION
A. Arguments Raised by Both Defendants
1. Gang Evidence
Defendants argue the trial court admitted unduly prejudicial gang evidence, violating Evidence Code section 352 and infringing on their federal constitutional due process right to a fair trial. Because of the potential for undue prejudice inherent in gang evidence, courts must carefully scrutinize gang evidence before admitting it. (People v. Williams (1997) 16 Cal.4th 153, 193.) But gang evidence "is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) We review a trial court's evidentiary decisions for abuse of discretion. (People v. Thomas (2011) 51 Cal.4th 449, 485.)
We separate our analysis of the expert's testimony into two categories: first, general testimony about the meaning of the question "what do you claim?"; and second, testimony about a specific case where that question was followed by a violent assault. The expert's general discussion of the question was relevant because it explained that the phrase had a specific meaning in gang culture. By explaining why that statement might cause fear to a listener who was familiar with gang culture, the testimony was relevant to the fear elements of the robbery, attempted robbery, and criminal threats counts. Nothing in the expert's general explanation was so graphic that its probative value was substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. The trial court did not abuse its discretion in admitting that testimony.
The trial court also allowed the gang expert to describe a specific instance where a non-gang member responded that "he wasn't from anywhere, which means I'm not gang member. And they chased him down to the front steps of the police department and they stabbed him in Watsonville." That specific example had limited probative value and was cumulative of the testimony the expert had already provided. It also created a substantial danger that the jury might believe defendants were the type of people who would chase after a non-gang member and stab him or her. We are persuaded that overruling defendants' Evidence Code section 352 objection to that portion of the expert's testimony was an abuse of discretion.
Defendants further argue that the expert's testimony about that unrelated event infringed their federal constitutional right to due process and rendered the trial fundamentally unfair. (See People v. Albarran (2007) 149 Cal.App.4th 214, 230.) But the prosecutor did not seek elaboration or otherwise linger on the subject. On this record, we find no federal constitutional violation related to the gang evidence.
When reviewing whether the state law error was harmless, we consider whether it is reasonably probable that defendants would have obtained a more favorable result had their Evidence Code section 352 objection been sustained. (People v. Watson (1956) 46 Cal.2d 818, 836.) As we have explained, most of the gang expert's testimony was relevant and not unduly prejudicial. The unduly prejudicial testimony about an unrelated incident in Watsonville was limited in scope, and neither the prosecutor nor the gang expert attempted to connect that specific example to the conduct of either defendant. There was ample evidence connecting defendants to the crime, including being found in a car matching the description of the suspect car, with Luna's wallet, near the scene of the crime, relatively soon after it occurred. And Zuniga's testimony that he was scared throughout the incident supported the fear elements of robbery and attempted robbery. We see no reasonable probability of a more favorable result had the trial court prevented the gang expert from describing the Watsonville incident while explaining the meaning of, "what do you claim?"
2. Sufficiency of the Evidence of Assault Against Zuniga
Defendants argue that because no deadly weapon was used against Zuniga, insufficient evidence supports the corresponding assault with a deadly weapon counts. "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) We presume the "existence of every fact that the trier of fact could reasonably deduce from the evidence" to support the judgment. (People v. Medina (2009) 46 Cal.4th 913, 919.) To overturn a conviction based on insufficient evidence, "it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Defendants were charged with assaulting Zuniga with a deadly weapon (with Karagiannopoulos charged as the direct assailant, and Abeyta charged as an aider and abettor). (§ 245, subd. (a)(1).) "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).) Because a knife is not an inherently deadly weapon, the knife must be used in a manner that is "not only 'capable of producing' but also' "likely to produce death or great bodily injury" '" in order to support an assault with a deadly weapon charge. (In re B.M. (2018) 6 Cal.5th 528, 533 (B.M.).) "[D]etermination of whether an object is a deadly weapon under section 245[, subd.] (a)(1) must rest on evidence of how the defendant actually 'used' the object." (Id. at p. 534.) As a matter of statutory construction, bare hands and feet "cannot be deadly weapons." (Aguilar, at p. 1034.)
We note defendants were not charged under section 245, subdivision (a)(4), which prohibits "assault upon the person of another by any means of force likely to produce great bodily injury."
The only testimony about the assault came from Zuniga. He testified that the driver and Luna were 10 to 12 feet from him when the driver swung a knife at Luna. The driver then walked toward Zuniga and demanded his belongings while holding the knife. The driver punched Zuniga with his fist when he did not hand over his wallet. Unlike with victim Luna, there was no evidence that the driver swung the knife at Zuniga. It appears instead that the driver brandished the knife while demanding Zuniga's property.
The Attorney General argues sufficient evidence supported the convictions because the "knife Karagiannopoulos was wielding when he demanded money from Zuniga was capable of producing great bodily injury within the meaning of the statute." But the Supreme Court in B.M. made clear that to be considered a deadly weapon the object must be used in a manner not only capable of producing but likely to produce death or great bodily injury. (B.M., supra, 6 Cal.5th at p. 533.) We cannot conclude that the way Karagiannopoulos actually used the knife-brandishing it while punching Zuniga-was likely to cause death or great bodily injury. The evidence, even viewed in the light most favorable to the judgment, does not support a finding that
Karagiannopoulos used the knife against Zuniga in a manner likely to produce death or great bodily injury. Both defendants' assault convictions relating to victim Zuniga must therefore be reversed. (As a result, we need not reach Karagiannopoulos's argument related to his assault conviction against Zuniga about a stayed section 12022 enhancement which does not appear in the minute order or abstract of judgment.)
B. Abeyta's Individual Arguments
1. Evidence that Karagiannopoulos Possessed Cocaine
Abeyta argues the trial court violated Evidence Code section 355 and infringed on his federal constitutional right to present a complete defense when it excluded all evidence related to Karagiannopoulos's cocaine possession the night of the robbery.
a. Background
Karagiannopoulos pleaded no contest to possessing cocaine before the first trial on condition that the "information regarding those charges, as well as the theory of the drug neighborhood and their reason for being in a drug neighborhood will not be allowed in the trial, notwithstanding some other evidentiary thing we're not anticipating." The excluded information included testimony that drugs were found in Karagiannopoulos's pocket when he was arrested. Abeyta was represented at the hearing by an attorney from his trial counsel's office, and he did not object to excluding the cocaine evidence.
Contrary to the evidentiary ruling, during the second trial Abeyta's counsel asked Officer Hohmann on cross-examination, "You also searched Mr. Karagiannopoulos and found cocaine in his pocket." The prosecutor objected and the court discussed the matter with counsel outside the jury's presence. Karagiannopoulos's counsel moved for a mistrial based on violation of the in limine ruling excluding drug evidence. Abeyta's counsel stated he did not remember the in limine ruling. He argued the drug evidence was relevant to disprove the theory that the robbery was a coordinated act because being under the influence of cocaine might have caused Karagiannopoulos to carry out an unprovoked, random act of violence that Abeyta did not intend to aid or abet. The court found Abeyta's counsel had violated the in limine motion, but denied Karagiannopoulos's mistrial motion. Abeyta's counsel did not seek admission of the evidence under Evidence Code section 355.
b. Abeyta Forfeited his Appellate Arguments
Abeyta did not raise either of his appellate arguments in the trial court, and therefore forfeited them. He argues his trial counsel "objected to Karagiannopoulos's motion to exclude the cocaine evidence, explaining to the trial court why the evidence was relevant to Abeyta's defense." But the "objection" he cites occurred not during the hearing where the evidence was excluded but instead during the second trial when the court was deciding Karagiannopoulos's mistrial motion. In the interest of judicial economy we will review the issue as a claim of ineffective assistance of trial counsel for not timely asserting the arguments Abeyta raises.
To establish ineffectiveness of trial counsel in violation of the right to counsel under the Sixth Amendment to the United States Constitution, a defendant must show both a deficiency in counsel's performance and a prejudicial effect of the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) We do not second-guess reasonable tactical decisions made by trial counsel. (People v. Riel (2000) 22 Cal.4th 1153, 1185.) To prove prejudice from deficient performance, a defendant must affirmatively show a reasonable probability that, but for trial counsel's error, the result would have been different. (Ledesma, at pp. 217-218.)
c. Abeyta Does Not Demonstrate Ineffective Assistance
Evidence Code section 355 provides: "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." A defendant's due process right to a fair trial and to present a complete defense includes the right to present relevant evidence of significant probative value. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) Abeyta argues that the excluded evidence was relevant and admissible as to him because it suggested Karagiannopoulos had used cocaine and was acting erratically on the night of the offenses, which "tended to show … that Abeyta could not have predicted what Karagiannopoulos was going to do when he got out of the car and approached Luna and that Abeyta did not know that Karagiannopoulos intended to commit the charged crimes."
Contrary to Abeyta's argument, Karagiannopoulos's mere possession of a usable amount of cocaine did not have significant probative value because there was not other evidence (such as a toxicology report) showing that cocaine ingestion led to Karagiannopoulos's erratic behavior when he was arrested. Further, the absence of testimony about drug possession did not prevent Abeyta's trial counsel from arguing to the jury that Abeyta was merely a "confused, innocent bystander, a passenger in a car," to a "random, unplanned and uncoordinated" attack. Abeyta's trial counsel was therefore not ineffective for not requesting admission of the drug evidence under Evidence Code section 355.
Even assuming deficient performance, Abeyta has not demonstrated prejudice. Abeyta's conduct in getting out of the car and standing next to Zuniga instead of staying out of the fray was inconsistent with Abeyta's defense theory, and his conduct supported an inference that he intended to aid and abet whatever actions Karagiannopoulos carried out. The jury acquitted Abeyta on the counts related to Luna, indicating that it carefully considered Abeyta's intent as it related to the charged crimes. Abeyta has not demonstrated a reasonable probability of a more favorable result had defense counsel moved under Evidence Code section 355 to admit evidence that Karagiannopoulos possessed cocaine the night of the robbery.
2. Jury Instructions About Attempted Robbery
Abeyta argues that the trial court erred by modifying a jury instruction about the intent element of aiding and abetting attempted robbery. As the issue presents a pure question of law, we will consider this claim despite defendant's failure to object below. (People v. Olivas (2016) 248 Cal.App.4th 758, 772 (Olivas); § 1259.) "When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.) Our review is de novo. (Olivas, at p. 772.)
The court instructed the jury with a modified version of CALCRIM No. 1603 regarding the intent to aid and abet both the robbery of Luna and the attempted robbery of Zuniga (italics indicate the language the court added to the pattern instruction): "To be guilty of robbery or attempted robbery as an aider and abettor, [Abeyta] must have formed the intent to aid and abet the commission of the robbery before or while the perpetrator carried away the property to a place of temporary safety. [⁋] A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property." The jury was also instructed that "[s]ome of these instructions may not apply, depending on your findings about the facts of the case."
The prosecutor argued to the jury: "I submit to you not only did Mr. Abeyta have the intent to aid and abet Mr. Karagiannopoulos with the robbery and attempted robbery while they were at the scene -- and I've already talked about all the actions that they both took -- but there's also this longer period of time for robbery and attempted robbery."
Abeyta argues that the modified instruction improperly expanded the duration of the attempted robbery of Zuniga. The argument is based on People v. Cooper (1991) 53 Cal.3d 1158 (Cooper), where the Supreme Court discussed the timing of intent formation for aiding and abetting robbery. The court determined that a "getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety." (Id. at p. 1165.) The court made clear that aider and abettor liability for robbery continues only so long as the loot is being carried away to a place of temporary safety, and that any assistance after that time would be punishable merely as an accessary after the fact rather than as a principal. (Id. at pp. 1167-1170.)
Based on the legal standards discussed in Cooper, we agree that the attempted robbery of Zuniga ended when Karagiannopoulos walked away from Zuniga without taking any property. As a result, to be liable as an aider and abettor Abeyta had to have formed the intent to aid and abet the attempted robbery before that point. Abeyta contends that the "modified instruction permitted the jury to find Abeyta guilty of aiding and abetting the attempted robbery of Zuniga as long as he formed the intent to assist that crime while Karagiannopoulos was carrying away the loot from the robbery of Luna." Given that no property was taken from Zuniga in the attempted robbery, the jury would have reasonably understood that the asportation reference in the instruction did not apply to the attempted robbery count. We do not find it reasonably likely that the jury understood Abeyta could form an intent to aid and abet the attempted robbery of Zuniga during the flight with Luna's property. Abeyta argues we should infer a reasonable likelihood that the jury interpreted the instruction in an improper manner because the prosecutor incorrectly argued that Abeyta could form the intent to aid and abet attempted robbery until he reached a place of temporary safety. But the prosecutor's isolated misstatement does not compel the conclusion that the jury made the same mistake. Based on this reasoning, we find no instructional error. Abeyta's federal constitutional due process argument therefore necessarily also fails.
3. Cumulative Prejudice as to Abeyta
Abeyta argues the various errors he identifies are cumulatively prejudicial. "Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844 .) "Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Ibid.) As we have found only one error relating to Abeyta-the trial court's failure to exclude unduly prejudicial gang evidence-Abeyta's cumulative prejudice argument must fail.
C. Karagiannopoulos's Individual Arguments
1. Denial of Mistrial After Cocaine Reference
A mistrial should be granted if a prejudicial event occurs that the trial court determines is incurable by admonition or instruction such that a defendant's chance of receiving a fair trial has been irreparably damaged. (People v. Collins (2010) 49 Cal.4th 175, 198-199 (Collins).)" '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.'" (Ibid.)
As already summarized, although evidence of Karagiannopoulos's cocaine possession on the night of the robbery had been excluded in limine, Abeyta's counsel asked Officer Hohmann on cross-examination, "You also searched Mr.
Karagiannopoulos and found cocaine in his pocket." After denying Karagiannopoulos's mistrial motion, the court took a brief recess to allow Karagiannopoulos's counsel to speak with his client and to draft a statement to be read to the jury. The court admonished the jury as follows: "Prior to this trial, Mr. Karagiannopoulos entered a plea of guilty to a misdemeanor charge of possession of a small amount of cocaine with the understanding that the possession would not be relevant to the remaining charges at issue here and would not be discussed during the trial. [⁋] The Court is directing each juror to put aside any person[al] feelings they may have about narcotics and focus only on the admissible evidence they hear during trial as relates to the elements of the charged crimes. [⁋] [Abeyta's counsel] asked a question, did you find some cocaine, witness didn't answer the question. I'm reminding you again that the statements, questions of attorneys are not evidence for you to consider. The answers are."
We agree with Karagiannopoulos that the invited error doctrine does not preclude his direct challenge to the trial court's resolution of the mistrial motion despite his trial counsel having drafted the admonition. "The invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction." (People v. Moon (2005) 37 Cal.4th 1, 28.) The record shows no tactical reason for requesting the specific admonition; instead counsel made clear he did "not necessarily believe this curative admonition will cure it, but it's the best I can do under the circumstances."
We acknowledge that the question from Abeyta's counsel introduced the subject of drugs into a trial that did not involve drugs. But the court stopped the proceedings before the witness could answer, and reminded the jury that the "questions of attorneys are not evidence for you to consider." We also acknowledge that the admonition-which itself informed the jury that Karagiannopoulos possessed cocaine the night of the robbery-was not perfect. But given the isolated question and the court's timely admonition, we do not find that the question alone irreparably damaged Karagiannopoulos's chance of receiving a fair trial. Mindful of the considerable discretion afforded trial courts in ruling on mistrial motions (Collins, supra, 49 Cal.4th at pp. 198-199), the trial court did not abuse that discretion.
2. Sufficiency of Evidence Supporting Identification
Karagiannopoulos argues there was insufficient evidence to support his identity as the perpetrator of the offenses because Zuniga never identified him; Karagiannopoulos's statements to the police did not prove his identity; and Luna's wallet being discovered in the car Karagiannopoulos was driving was insufficient, without more, to support his identity as the robber.
The following evidence, viewed in the light most favorable to the judgment (Bolin, supra, 18 Cal.4th at p. 331), supports Karagiannopoulos's identity as the perpetrator: The crime occurred between 11:15 p.m., when Zuniga decided to walk home from his friend's house, and 12:30 a.m., when the dispatch went out. A nearby convenience store employee identified both defendants as having visited the store after midnight that same night. Karagiannopoulos was pulled over a few minutes after 12:30 a.m. driving a car that matched the dispatch description of an older white Honda with two male occupants. Karagiannopoulos-a Caucasian of Greek descent who was five feet nine inches tall, 175 pounds, and 34 years old-generally matched the description Zuniga gave at trial of the driver: a white male, 175 centimeters tall (roughly five feet nine inches), who was about 30 years old. The passenger in the car with Karagiannopoulos was identified by Zuniga at a show-up the night of the robbery as the other suspect, Abeyta. Luna's wallet was found in the driver's area of the car Karagiannopoulos had been driving. A knife was also discovered. The scene of the crime, the location of the convenience store, and the street where defendants were arrested are all within about a one-mile radius of downtown Santa Cruz. And Karagiannopoulos's statements to the police about not knowing how Luna's wallet got into the car and about the money in his pocket being his life savings, while not demonstrably false, were sufficiently suspect to support a finding that Karagiannopoulos was not being truthful to the police. (People v. Holt (1997) 15 Cal.4th 619, 678 ["false statements may show consciousness of guilt"].)
People v. Sanford (2017) 11 Cal.App.5th 84, where the appellate court reversed Sanford's robbery conviction for insufficient evidence, is distinguishable. That case involved a robbery with as many as eight participants who fled the scene in multiple cars, and there was evidence that occupants of the car in which Sanford was discovered had changed over the course of the robbery and the escape. (Id. at p. 94.) Here, by contrast, there were only two suspects and no evidence that the occupants of the car they were stopped in had changed. As the court observed in Sanford, "being in a getaway car shortly after a crime and having some of the same general characteristics as the perpetrators will likely be substantial evidence of identity in cases where it is reasonable to infer that the occupants of the getaway car were unchanged." (Id. at p. 92.)
3. Cumulative Prejudice as to Karagiannopoulos
Karagiannopoulos contends the errors he identifies are cumulatively prejudicial. (See Hill, supra, 17 Cal.4th at p. 844 .) We focus here on two errors: the trial court allowing gang expert testimony about an unrelated incident, and Abeyta's counsel's question about Karagiannopoulos's cocaine possession (including the trial court's handling of that issue through an admonition).
Karagiannopoulos's defense theory was that he was not the person who committed the charged assaults and robberies. But, as discussed in the preceding section, strong circumstantial evidence tied Karagiannopoulos to the conviction offenses-including Luna's wallet being found shortly after the robbery in the car Karagiannopoulos was driving, which matched the victims' description of the assailants' vehicle. The inadmissible gang evidence and the reference to cocaine possession were isolated and neither went directly to the heart of the identity issue. Nor did the errors relate to the circumstantial evidence tying Karagiannopoulos to the robbery. We find no cumulative prejudice from these errors.
4. Fines and Fees
Based on People v. Dueñas (2019) 30 Cal.App.5th 1157, Karagiannopoulos argues his federal constitutional right to due process was violated when fines and fees were imposed without determining that he would be able to pay them. Karagiannopoulos was ordered to pay the minimum $300 restitution fine (§ 1202.4, subd. (b)), a court operations assessment of $160 (§ 1465.8, subd. (a)(1)), and a court facilities assessment of $120 (Gov. Code, § 70373). (We note that because we are striking one assault with a deadly weapon conviction for insufficient evidence, Karagiannopoulos's court operations assessment and court facilities assessment will reduce to $120 and $90, respectively.)
Karagiannopoulos forfeited the Dueñas argument by failing to make it in the trial court. As to his argument that his trial counsel was ineffective for not raising the fines and fees argument below, we find any error harmless beyond a reasonable doubt because Karagiannopoulos will be able to earn money while in prison to pay the fines and fees. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes prison wages].)
III. DISPOSITION
Karagiannopoulos's judgment is modified to strike the conviction for count 4 (assault with a deadly weapon against Zuniga) and any fines, fees, and assessments associated with that conviction. The clerk of the superior court is directed to prepare a new abstract of judgment reflecting those modifications. Karagiannopoulos's judgment is affirmed as so modified. Abeyta's probation order is modified to strike the conviction for assault with a deadly weapon and any fines, fees, and assessments associated with that conviction; the order is affirmed as so modified.
WE CONCUR: Greenwood, P. J., Danner, J.