Opinion
A139691
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ELIJAH MATTHEW HALL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR602080)
Appellant Elijah Matthew Hall appeals from convictions of robbery and assault. He contends his convictions must be reversed due to the trial court's prejudicial failure to sever his trial from that of his codefendant and refusal to give special jury instructions requested by the defense. He further urges the trial court erred in failing to strike his prior offense allegations. We affirm.
STATEMENT OF THE CASE
Appellant and codefendant Kevin Lamar Moore were charged by information filed on February 22, 2013, with two counts of first degree robbery (Pen. Code, § 211), against victims Robert Ehrhardt (count 1) and Jonathan Gomer (count 2). It was alleged that appellant personally inflicted great bodily injury on Gomer in the commission of count 2, and appellant was additionally charged with battery resulting in serious bodily injury of Gomer (§ 243, subd. (d)). Moore was charged with two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), on Gomer (count 4) and Ehrhardt (count 5). It was alleged that Moore had suffered four prior convictions of serious or violent felonies (§§ 1170.12, 667, subd. (a)(1)). Appellant was alleged to have suffered three prior felony convictions (§ 1203, subd. (e)(4)) and served a prior prison term (§ 667.5, subd. (b)), with two of the prior convictions alleged to be serious or violent felonies (§§ 1170.12, 667, subd. (a)(1)).
All further statutory references will be to the Penal Code unless otherwise specified.
Both defendants entered pleas of not guilty, denied the special allegations and unsuccessfully sought severance of the trials. Trial on the prior convictions was bifurcated. Count 5 was dismissed on the prosecutor's motion after the prosecution rested its case. The jury found both defendants guilty on the remaining counts and subsequently found the prior conviction allegations true. Appellant's motion for a new trial was denied, as was his motion to strike one or both of his prior convictions. Appellant was sentenced under the "Three Strikes" law to a prison term of 25 years to life plus a determinate term of 13 years for the great bodily injury enhancement and two prior convictions.
Appellant filed a timely notice of appeal on September 3, 2013.
STATEMENT OF FACTS
On May 9, 2011, Jonathan Gomer and his friend Robert Ehrhardt had some people over to Gomer's house to make music. Gomer had created a music studio in one of the rooms of the house, an area partitioned off by curtains hung from the ceiling to improve sound quality, with foam on the walls and equipped with a microphone, keyboard, and computer. During the day, Gomer received a phone call from a person he knew as "Sicc" and identified at trial as appellant, whom he had met once, through a friend, a year or so before. Appellant wanted to hang out, and Gomer invited him to the house.
Appellant arrived in the afternoon or early evening with a woman. The people already at the house were drinking beer and relaxing around the house, "[b]eat" playing in the background, and "scribbling lyrics out to try to write stuff." About two hours after appellant arrived, a friend of his came over whom Gomer had not previously met. Gomer could not recall this person's name but when asked if his nickname was "K," Gomer said that sounded familiar. Gomer identified Moore at trial as this person. Another man associated with appellant also came to the house, whom Gomer described as African-American, "6-foot or 6-foot-1 and about 200 pounds."
Later in the evening, the people remaining at the house were Gomer, Ehrhardt, appellant and his two friends, and the woman who had come with appellant. The woman was not feeling well, and was lying down in Gomer's bedroom. Gomer and Ehrhardt went into the studio to record. Ehrhardt was standing at the desk and Gomer put the headphones on, listening to the beat or instrumental while speaking into the microphone. With the headphones on, Gomer could not hear what was going on in the rest of the room, and the blanket kept him from seeing the room outside the studio area. He had consumed somewhere between 40 and 80 ounces of beer and was "buzzed" but not "drunk." Gomer remembered "trying one take," messing it up, and trying again; the next thing he remembered was waking up in the hospital. He remembered waking up momentarily and seeing his parents and a doctor, then waking up at his parents' house the next day, feeling a little bit nauseated and dizzy, his lip "really swollen" and seven stitches on the inside of his jaw. He did not remember being interviewed by the police at the hospital.
According to the medical testimony, Gomer suffered a laceration on his left lip, a concussion, and a fractured nose. His blood alcohol level was measured as 0.199. He was released from the hospital after about two hours.
When Gomer returned to his house later that day, he noticed several things missing: the 40-inch television from his living room; from the studio, his laptop, his cell phone, his house keys and car keys, his keyboard, and Ehrhardt's cell phone, and a 19-inch monitor from his bedroom. He later noticed that his camera, which had been in the studio, was also missing.
Ehrhardt also identified appellant at trial as the person known as "Sicc" who came to Gomer's house on May 9. Ehrhardt had not met appellant before but had seen him the prior weekend, when Ehrhardt was at Gomer's house and appellant came by looking for Gomer. Ehrhardt identified Moore at trial as an African-American man who arrived at the house about an hour or hour and a half after appellant and introduced himself as "K." Ehrhardt had not met him before but recognized him as the driver of the small gray Nissan in which appellant had come to the house the prior weekend.
Ehrhardt testified that people were drinking malt liquor, but he was not drinking because he was on probation. Around 11:00 p.m., Ehrhardt left for about half an hour to drive a friend, Cowan, home. K received a phone call and left in the Nissan, then returned half an hour later with another African-American man. While Ehrhardt was at the computer in the studio recording Gomer, who was rapping, with his back to Gomer, Ehrhardt was suddenly punched in the face, then hit a few more times on the left side of his face. He tried to get Gomer's attention, yelling for him, then turned and saw appellant's face, and appellant hit him again. Gomer did not appear to be aware of what was happening outside the recording "booth"; Ehrhardt could hear him rapping. Moore was standing by the doorway with the unidentified man just behind him. The unidentified man appeared slightly surprised at what was happening; Moore did not appear surprised.
Appellant stopped hitting Ehrhardt, went to the curtain and told Gomer, "keep it up, you are doing a good job," then ripped the curtain down with his right hand, grabbed Gomer with his left, and hit Gomer twice. Ehrhardt heard Gomer shout, "I thought we were friends, what the F is going on," then appellant punched him once more and Gomer dropped to the floor with his eyes rolled back in his head and did not move. Ehrhardt stood up and Moore grabbed a chair, lifted it a few inches, asked Ehrhardt, "[w]hat are you going to do?" and told him to get down on the ground. Erhardt noticed that Moore was wearing heavy work gloves that he had not been wearing earlier in the evening. Bleeding from his nose and scared, Ehrhardt lay down, put his hands behind his head and kept his eyes closed. He heard rustling that sounded like the studio equipment being picked up off the table, and felt someone going through his pockets, taking his cell phone and Gomer's keys. He heard talking and recognized one of the voices as appellant's. Ehrhardt heard the rustling sounds of people moving through the house for 10 or 15 minutes, then heard the door shut and car start.
After staying on the floor another five or ten minutes to make sure nothing else was going to happen to him, Ehrhardt checked on Gomer, who was still in the same position on the floor, unconscious. Ehrhardt went to lock the door and check the windows, and when he returned, Gomer was starting to move, moaning and groaning. Gomer had no recollection of what had happened and thought he had gotten drunk and passed out. Law enforcement was contacted and Gomer was taken to the hospital. Later, when they returned to Gomer's house, Ehrhardt noticed that the large television was missing, as were a keyboard, a laptop, and a computer monitor, and there were blood stains "everywhere" on the floor of the studio.
Detective Shannon McAlvain interviewed Gomer at the emergency room. Gomer was awake and conscious but disoriented and confused about what had happened during the incident. Ehrhardt described what had happened and told McAlvain that a person named K told him to get down on the ground. Huff initially said he did not have any prior knowledge of the suspects, then later said he knew Sicc from around town.
Detectives McAlvain and Dedischew went to Gomer's house and located the phone number from which Sicc had called Gomer earlier in the day. It was determined that this phone number was associated with appellant and that appellant's girlfriend was Stephanie Contreras. McAlvain showed photographic lineups containing appellant and Contreras to Gomer and Ehrhardt. Gomer identified appellant and Contreras. Ehrhardt identified appellant and "slightly recognized" Contreras.
Appellant was arrested on May 11, after the detectives employed a ruse to have him meet them at a location in Santa Rosa. Detective Brandon Cutting went to the location when informed by other officers that appellant was present and observed a tan Nissan Maxima that met the description of the vehicle used by the suspects. Cutting saw Contreras walking in his direction and spoke with her briefly, then saw a black man walking toward the Nissan, which had been identified as the car in which Contreras and appellant had arrived. Other detectives approached and told the man to stop but he continued toward the driver's door of the car and, as the officers yelled "sheriff's office" and drew their firearms, the man got into the car and took off at high speed. Cutting ran to his car, activated his lights and siren and pursued the Nissan but lost sight of it. He returned to the building, spoke with appellant, searched his cell phone and found that one of the phone numbers on it was connected to Moore. He obtained a photograph and immediately recognized Moore as the driver of the Nissan.
McAlvain showed Gomer a photographic lineup containing Moore's photograph as well as two others that had been created in an attempt to identify the third suspect. Gomer did not identify Moore in the lineups; in two lineups that did not contain Moore's photograph, he pointed to one individual as "[m]ost similar" but "[t]oo young and not enough wrinkles" and another as looking "similar" to the "older man" who had been at the house. Shown the lineup containing Moore's photograph at trial, Gomer recognized that photograph as the person referred to as K, and looking at Moore in court, Gomer was 99.9 percent confident he was the "older gentleman" at his house on the night of the incident.
Auston Cowan, a friend who had been at the house, testified that appellant, whom he identified at trial, arrived with a friend named King and a girlfriend. Cowan had last seen appellant at Gomer's birthday party a year before; he had never seen King before and did not see him in the courtroom at trial. An African-American male arrived whom appellant introduced as his friend. Cowan had a "weird" feeling about appellant bringing his friends to the house because Cowan and Gomer had not seen appellant for a year, and told Gomer he should probably ask them to leave. Cowan identified appellant in the lineup he was shown by the police. He testified that he did not identify anyone in the lineup containing Moore's photograph, and at trial he did not recognize anyone in that lineup as having been at Gomer's house. In the lineup itself, however, Cowan had indicated a positive identification of Moore and McAlvain testified that Cowan identified Moore in the lineup without hesitation.
Katherine Boyd, another friend who was at the house, when shown the photographic lineups, was positive in identifying appellant as having been at Gomer's house on the night of the incident, 50 percent sure in identifying Contreras, and did not identify anyone in the other lineups. At trial, she identified both appellant and Moore. Her boyfriend, Jason Huff, identified appellant in the photographic lineups and was 80 percent sure in identifying Contreras. He was 90 percent sure in identifying Moore and testified at trial that Moore was the person he had picked from the lineup. Huff also identified appellant at trial. He had described the suspect he identified as appellant as having a "lazy left eye," and McAlvain testified that appellant had a "wandering left eye." Jenee Dumolin identified both appellant and Moore in the photographic lineups; at trial, she identified appellant but not Moore.
A recording was played for the jury of a phone call appellant made from jail to Contreras on June 19, 2011, in which he alternated between talking calmly and yelling profanities at Contreras and, even when talking calmly, his speech was punctuated with curses. He repeatedly insisted that Contreras call a phone number (ending in 5632) that the evidence showed belonged to Cowan: "I got a number, too, for you to fuckin' call," "text that little shit like I talked to you about . . . get a mother fuckin' answer . . . see what the fuck's goin' on." Whenever she hesitated, expressed discomfort about doing this or asked questions about it, appellant instantly became belligerent, angrily yelling and cursing at her. He repeatedly insisted that she come to visit him so they could talk.
Cowan testified that two or three weeks after the incident, he received a call on his cell phone (ending in 5632) from a male who called Cowan by name but refused to provide his own name. The caller said he was calling about his "homie," whom Cowan assumed to be appellant, and asked Cowan to tell Gomer that he would be given money if he did not testify. Cowan told Gomer and Ehrhardt about the call. Gomer testified that he received a phone call from Cowan about two to four months after the incident saying that someone had contacted him and offered a sum of money for Gomer to not testify in this case.
None of the property taken from Gomer's house was found in a search of appellant's residence or in Moore's possession.
Defense Evidence
Detective Jeff Dedischew interviewed Gomer on May 11. Gomer said he had been intoxicated at the time of the incident, ended up face down on the carpet, and assumed he had been knocked out.
Forensic Scientist Okorie Okorocha testified as an expert on the effects of alcohol upon an individual's consciousness and ability to perceive and relate. Okorocha testified that alcohol, at higher levels, can cause mental confusion, loss of memory, and unconsciousness. Each person may be affected differently by a given level of alcohol: For example, the effect of alcohol can differ depending on whether a person is a heavy drinker, and certain people are prone to alcohol induced blackouts while others rarely have them. A blood alcohol concentration of 0.20 is high enough to cause memory loss. If a person who loses consciousness has a 0.20 blood alcohol concentration and also has been subjected to blunt force trauma, it generally would not be possible to determine whether the alcohol or the trauma caused the unconsciousness.
Psychologist Mitchell Eisen testified as an expert on eyewitness identification. He described imperfections in the processes of memory and how people use inferences to fill gaps in memory, and factors that can undermine the accuracy of a witness's memory. Alcohol intoxication can impair eyewitness memory. Cross-race identification can be problematic because it is more challenging for the witness to differentiate subtle features of the face of a person of a different race. Distinguishing features such as unique piercings, scars or haircuts are most easily remembered because they grab the witness's attention. Where witnesses share their observations, they will commonly accept details reported by another person they deem credible as if those details were their own memories. A person with larger gaps in memory of an event will be more likely to accept details from another source. The procedures used to collect and preserve eyewitness evidence can also affect an identification. To be fair, the subjects in a lineup must all be viable options based on the description of the suspect. A person's memory for a face can only be tested one time; after this, familiarity of the face will affect later identifications. By the time a witness makes an in-court identification, that identification has been influenced by events, discussions, pictures and rethinking since the time of the event. A witness's level of confidence in an identification does not necessarily equate with actual accuracy.
Stephanie Contreras testified that she had had trouble with her memory since having a brain tumor removed. She remembered going to a house with appellant where he was making music with some other people. She was on the couch watching television; she fell asleep because she took her seizure medication after drinking a 40-ounce beer, but she was not drunk. At some point, appellant put her in the bedroom so she would not be disturbed. She remembered that appellant became upset because he found that her clothes were undone, her pants unbuckled and her shirt "up." He took her back to the couch, telling her she would be safer in the living room where he could keep an eye on her. Appellant later told her it was time to go and put her in the backseat of the car, where she fell asleep against him. She recognized the car as belonging to K but did not know who was driving. The next morning, she saw that the people who had been in the front of the car were Buddy and Kevin Moore, and on May 11, K drove her and appellant from San Francisco to Santa Rosa.
Contreras initially testified that she did not know Kevin Moore, then after being asked by the prosecutor about having told Detective Cutting that she knew Kevin Moore from prior contacts, stated that she had met him on two occasions but did not hang out with him and was not introduced to him as Kevin Moore. She testified that she did not see K, or the person who had driven to Santa Rosa, or Kevin Moore in the courtroom at trial. Asked if the person she knew as K was Kevin Moore, Contreras replied, "I guess so."
Contreras testified that appellant had nothing to do with what happened at Gomer's house, and that she contacted Detective Cutting to tell him she was afraid because she had been receiving threats from Buddy Walker. She acknowledged that she had convictions for felony welfare fraud, misdemeanor theft, child endangerment, felony infliction of corporal injury to a child, lying to a police officer, and petty theft.
Appellant identified Moore at trial as his friend Kevin Moore, called K. Appellant testified that on May 9, 2011, he and Contreras went to Gomer's house in the late afternoon to "do music." Gomer, Ehrhardt, and Cowan were there when they arrived. Everyone went into the studio, where they listened to music and drank. Appellant, Contreras, and Ehrhardt went to the store for alcohol. When they returned, Contreras stayed on the couch and the others went back into the studio and began recording. From behind the curtain, appellant kept hearing the studio door open and when he looked out, Gomer would be by the couch. This made appellant nervous because of Contreras being on the couch. Appellant finished the track quickly and went to sit on the couch. Four people he did not know arrived at the house.
Appellant learned that Moore was trying to reach him and gave him Gomer's address, and Moore arrived. Appellant and Moore left to get Buddy, but before doing so appellant asked Gomer to make sure nothing happened to Contreras, who had gotten drunk and was lying on the couch. When they returned, Cowan and Ehrhardt were leaving. Cowan shook appellant's hand quickly, in a way that made appellant feel something was not right. When he went inside, appellant saw Contreras on the couch with her pants open and her bra "up." Feeling something had happened, appellant moved Contreras to Gomer's bedroom. Appellant asked Gomer if anything had happened to Contreras and Gomer brushed him off, and others in the house were unresponsive when he asked them. Appellant felt the energy in the house had changed. When Ehrhardt returned, appellant asked him if something happened to Contreras and whether Cowan had been involved.
Appellant testified that he was going in and out of the studio while Buddy was in the studio writing lyrics. Eventually, appellant moved Contreras to the car, then went back into the studio with Ehrhardt and Gomer. Appellant hit Ehrhardt; asked why, he testified, "my emotions and my feelings towards [Contreras] and what I seen, I just didn't feel that was right that happened." Gomer came out from behind the curtain and ran toward appellant, and appellant hit him because he was shocked at Gomer running out and was still upset. Appellant stood there for a minute, feeling bad about what happened, then left the studio. As he was walking out, Moore was coming in. Appellant got into the backseat of the car with Contreras, then Moore and Buddy came out and got into the car as well. Appellant testified that he did not take any property from the house or see anyone else doing so. He did not have a plan with anyone to steal anything from Gomer or Ehrhardt; the only thing on his mind was hitting Ehrhardt and Gomer because of what he thought had happened with Contreras. He was not wearing gloves that night.
Asked about the taped phone call with Contreras, appellant testified that the police reports did not say that the reason the incident occurred was his belief that Contreras had been touched. Appellant acknowledged that he had been convicted of false imprisonment, attempted robbery, residential burglary, and receiving stolen property.
DISCUSSION
I.
Appellant maintains his trial should have been severed from Moore's because their defenses were irreconcilable and appellant was prejudiced by association with Moore.
" ' "Our Legislature has expressed a preference for joint trials. [Citation.] Section 1098 provides in pertinent part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.' The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses. . . . [¶] We review a trial court's denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. [Citation.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court's joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' [Citation.]" [Citation.] . . . [Citation.]' (People v. Homick (2012) 55 Cal.4th 816, 848.)" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1172-1173 (Hajek), abrogated on other grounds.)
"When defendants are charged with having committed 'common crimes involving common events and victims,' as here, the court is presented with a ' "classic case" ' for a joint trial. (People v. Keenan (1988) 46 Cal.3d 478, 499-500.)" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).) While conflicting defenses may be a reason for severance (see id. at p. 41), " '[i]f the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials "would appear to be mandatory in almost every case." ' " (Ibid., quoting People v. Hardy (1992) 2 Cal.4th 86, 168.) " 'Severance is not required simply because one defendant in a joint trial points the finger of blame at another. " ' "Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." ' [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance." [Citation.]' (People v. Homick, supra, 55 Cal.4th at p. 850; see [People v.] Letner and Tobin [(2010)] 50 Cal.4th [99,] 150.)" (Hajek, supra, 58 Cal.4th at p. 1173.) The conflict between defenses justifying separate trial "exists only where the acceptance of one party's defense precludes the other party's acquittal." (People v. Carasi (2008) 44 Cal.4th 1263, 1296.)
Appellant asserts that he and Moore "had prototypic conflicting and mutually antagonistic defenses," that their "shared defense was identification" and that both "called eyewitness experts when identification was a major issue." But appellant did not rely on a defense of mistaken identification. He admitted being present at Gomer's house and battering both victims. His defense was that he did not have the intent required to find him guilty of robbery, did not take any property from the victims and did not assist anyone else in so doing. Not surprisingly, all the examples of uncertainty in identification cited in appellant's opening brief relate to the witnesses' identification of Moore.
Appellant states that he was "linked to this case" by Cowan's testimony about the phone call he received offering to pay Gomer for not testifying against appellant, but does not explain what relevance this observation has to his argument. The "link" implied in Cowan's testimony was relevant to the issue of appellant's intent if the testimony was taken to indicate that appellant solicited or approved the effort to dissuade Gomer from testifying. But it had nothing to do with identifying appellant as the person who was at Gomer's house and battered and robbed the victims. The police determined that appellant was a suspect in the case by tracing the phone number on Gomer's phone to him, and Gomer and Ehrhardt's subsequent identification of appellant's photograph. There does not appear to have been any question that appellant was the person known as Sicc who was at Gomer's house on May 9.
Appellant points out that the prosecutor relied primarily on his testimony identifying Moore as "K" to tell the jury that there was no longer an issue of identification in the case, and states that his defense was irreconcilable with Moore's because he was the only one who identified Moore as "K" and the prosecution relied on that identification to argue that Moore was also guilty beyond a reasonable doubt. Whatever effect appellant's identification of Moore had on Moore's defense, however, appellant offers no explanation how it could have been prejudicial to appellant. Appellant's defense—that he acted only in anger and defense of Contreras and without intent to take property from the victims—was in no way dependent upon Moore in fact being "K." Acceptance of Moore's defense would not have precluded the jury from believing appellant's defense (People v. Carasi, supra, 44 Cal.4th at p. 1296); it would only have meant the person who was at the house with appellant was someone other than Moore. Conversely, rejection of Moore's defense would not have compelled the jury to reject appellant's if it believed that appellant battered Gomer and Ehrhardt for the reasons he explained and, as he testified, "did not intend to take, and did not take or see" anyone else take their property.
Appellant also argues that he was prejudiced by the joint trial because the consciousness of guilt reflected in the evidence that Moore fled from the police would "inevitably" have been imputed to appellant even though appellant in fact surrendered to the police voluntarily, and Moore's priors were likely used by the jury to prove intent to rob. We fail to see how Moore's consciousness of guilt unfairly implicated appellant. To the contrary, the fact that appellant voluntarily surrendered to the police distinguished him from Moore, if anything supporting his defense by suggesting he has less reason than Moore to evade apprehension. As for Moore's prior convictions, at the point the jurors deliberated and found appellant guilty, they knew of Moore's prior convictions only from the charging allegations of the information they heard at the beginning of jury selection; the priors were not part of the trial itself, as Moore did not testify and the issue of the truth of the prior conviction allegations was not submitted to the jurors' until after their verdicts on the current offenses. Further, appellant's own priors, while fewer in number than Moore's, were for burglary and attempted robbery. This the jurors did know when they deliberated on the current offense, as appellant acknowledged the prior convictions when he testified. The court instructed the jury to evaluate the evidence as it applied to each defendant separately. And, as we have said, rejection of Moore's defense did not preclude the jury from accepting appellant's.
In short, this was a " ' "classic" case' for joinder" (People v. Carasi, supra, 44 Cal.4th at p. 1297, quoting Coffman, supra, 34 Cal.4th at p. 40) and the joint trial did not result in " ' "gross unfairness" ' " to appellant. (Hajek, supra, 58 Cal.4th at p. 1173, quoting People v. Homick, supra, 55 Cal.4th at p. 848.)
II.
A.
Appellant requested three special jury instructions, arguing they were necessary to assist the jury in understanding the intent required to convict him of robbery:
"If you find beyond a reasonable doubt that [appellant] intended to steal at the time he applied force to Mr. Gomer or to Mr. Ehrhardt, you must still determine beyond a reasonable doubt whether, one, he took property belonging to Gomer or to Ehrhardt, or two, whether someone else acting with [appellant's] knowledge and consent took property belonging to Gomer or to Ehrhardt. If you find [appellant] intended to steal when he applied force to Gomer or to Ehrhardt and . . . find that property was taken from Gomer or Ehrhardt, but you have a reasonable doubt about whether [appellant]" (1) "took that property himself" or (2) "intended that others take the property, then you must find him not guilty of robbery."
"[Appellant] is charged with robbery as a direct perpetrator. If you find that he used force against Gomer or Ehrhardt with the intent to steal, and either" (1) "he took the property or (2) "intended [that] others take the property . . . he is guilty of robbery as a direct perpetrator."
"[Appellant] is also charged with robbery as an aider and abettor. . . . [I]n order to find [appellant] guilty of robbery as an aider and abettor, you must find beyond a reasonable doubt that" (1) "someone other than [appellant] used force or the fear of force against . . . Gomer or Ehrhardt"; and (2) "before or during the taking of property, [appellant] had the intent to aid and abet the commission of the robbery"; and (3) appellant "in fact aided, facilitated, promoted, encouraged, or instigated the perpetrator's commission of the crime."
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case. [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense. . . ." ' (People v. Roldan (2005) 35 Cal.4th 646, 715.) The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' (People v. Moon [(2005)] 37 Cal.4th [1,] 30.)" (People v. Burney (2009) 47 Cal.4th 203, 246.)
Appellant's requested instructions sought to highlight his defense that although he assaulted and battered the victims, he did not intend to rob them. Appellant argues that there was evidence of three instances of use of force, two by him and one by Moore, and the jury needed to understand that it was required to determine which of these instances involved force accompanied by an intent to rob, as well as to distinguish between robbery and theft.
The trial court refused the requested instructions because it found them confusing and the necessary concepts covered by the standard jury instructions. The jury was instructed pursuant to CALCRIM No. 400 that a person may be guilty of a crime either as "the perpetrator" who "directly committed the crime" or for aiding and abetting the perpetrator. It was instructed according to CALCRIM No. 401 on the elements of aiding and abetting, including that in order to prove a defendant guilty as an aider and abettor, the prosecution must prove that the defendant "knew the perpetrator intended to commit the crime," that "during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime" and that "the fact that a person is present at the scene of the crime or failed to prevent the crime" may be considered but "does not in itself make him an aider and abettor." The jury was instructed pursuant to CALCRIM No. 1600 on the elements of the offense of robbery, including that the defendant must have "used force or fear to take the property or to prevent the person from resisting" and that the defendant's intent to take the property must have been formed before or during the use of force, not afterward. And the jury was instructed according to CALCRIM No. 1603 that "[t]o be guilty of robbery as an aider and abettor the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety."
The court instructed pursuant to CALCRIM No. 1600: "The defendants are charged in Counts I and II with robbery. To prove that a defendant is guilty of this crime, the People must prove that": 1. "[T]he defendant took property that was not his own"; 2. "[T]he property was taken from another person's possession and immediate presence"; 3. "[T]he property was taken against that person's will"; 4. "[T]he defendant used force or fear to take the property or to prevent the person from resisting"; and 5. "[W]hen the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property. [¶] The defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery."
These instructions fully informed the jurors of the intent and conduct required to find appellant guilty of robbery as a direct perpetrator or as an aider and abettor. The court was not required to give pinpoint instructions that duplicated the standard instructions. (People v. Moon, supra, 37 Cal.4th at p. 30 [trial court not required to give pinpoint instruction on concept covered " 'In a general way' " in pattern instruction].)
Moreover, no prejudice could have resulted from the court's refusal to give these instructions. Appellant's theory of defense was that he committed battery but not robbery: He struck Gomer and Ehrhardt because he was angry and upset about what he believed was the molestation of Contreras but never intended to take property from them, never in fact took property from them, and never intended to assist or in fact assisted anyone in doing so. Appellant stated this defense clearly in his testimony; his attorney explicitly addressed it in argument; and the prosecutor expressly urged the jury to reject it. The jurors could not have failed to understand the defense theory, and the instructions given directed them that they could not find appellant guilty of robbery if they believed this theory. It is not reasonably probable the jury would have reached a different conclusion if the requested special instructions had been given. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [standard instructions did not preclude jury from accepting defense theory, which "counsel's argument to the jury fully explicated"]; People v. Earp (1999) 20 Cal.4th 826, 887 [applying harmless error standard of People v. Watson (1956) 46 Cal.2d 818 to refusal of pinpoint instruction].)
Appellant maintains the refusal to instruct amounted to federal constitutional error because he had a federal constitutional right to "adequate instruction on his defense." There is no merit to his claim that the jury "was not told what to make of the evidence that was presented" or was precluded from properly considering every element of the offense with which he was charged.
B.
Appellant also challenges the trial court's refusal to give a supplemental limiting instruction pertaining to Cowan's testimony about the phone call he received a few weeks after the incident. The requested instruction was as follows: "Austin Cowan testified that he received a phone call wherein the caller offered money if Gomer would not testify. That evidence was not received for the truth of the matter (that the caller would give money), but to show its effect on the hearer - Cowan. You may not consider that evidence for any other purpose."
Evidence of an out-of-court statement is admissible when offered not to prove the truth of the statement but to show its effect on the hearer, when that issue is relevant to the case. (Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 132-133.) Appellant argues that the instruction he requested was needed to "address the hearsay concerns that Cowan's testimony about the alleged call inevitably had on the jury," pointing out that there was no evidence confirming such an offer was made.
As earlier described, Gomer testified that about two to four months after the incident, Cowan told him he had received a phone call from someone offering a sum of money for Gomer to not testify in this case. The court instructed the jury at that time that Cowan testified that two or three weeks after the incident, he received a call on his cell phone from a man who said he was calling about his "homie," whom Cowan assumed to be appellant, and asked Cowan to tell Gomer that he would be given money if he did not testify. Cowan told Gomer and Ehrhardt about the call.
The court instructed the jury at that time: "Hearsay is not permitted in court because it is an out-of-court statement offered for the truth of the matter stated therein. We don't allow hearsay offered for the truth because you don't have the opportunity to judge the credibility of the out-of-court speaker who made the statement. However, sometimes statements that are admitted that are made out of court by people who you do not see yet in court are admitted for other purposes. In this particular case [the prosecutor] is going to be offering an out-of-court statement made by Cowan. . . . [¶] [I]t is not admitted for the truth of the matter of what the statement is, but solely to explain the state of mind of [Gomer] and the effect of that statement upon [Gomer], and you are not to consider it for any other purpose."
Prior to Cowan's testimony, appellant requested the supplemental limiting instruction. In denying the request, the trial court said that it did not think the jury was going to conclude "there was actual money passing hands" and that the effect on Cowan was not relevant. Rather, the court stated, "[t]he relevance is if the jury draws the implication that is traceable back to the original phone call from [appellant] it does show consciousness of guilt, so I'm definitely not going to instruct them you may not consider that evidence for any other purpose" as indicated in the proposed instruction.
The "original phone call from" appellant to which the trial court referred was the recorded call from appellant to Contreras that had been played for the jury.
Defense counsel argued that the court's reasoning showed that Cowan's testimony was hearsay, offered for its truth—that an offer had been made to dissuade Gomer from testifying. The court disagreed, explaining that only the fact an offer was made was relevant, not the truth of the offer.
We agree with the trial court that the effect of the phone call on Cowan was not relevant to these proceedings. For that reason, the instruction was properly denied. The trial court seemed to miss the point, however, that the testimony was hearsay. As the trial court explained, the issue to which the testimony was relevant was appellant's state of mind: If the jury believed the call Cowan received related to the one appellant, in the recorded conversation, tried to convince Contreras to make, the call to Cowan was evidence of appellant's consciousness of guilt. (CALCRIM No. 371.) But, as defense counsel tried to explain below, the jury could draw this inference only if it considered the substance of the conversation Cowan related, that he in fact received a phone call offering Gomer money in exchange for not testifying against appellant.
The jury was instructed: "If a defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he is aware of his guilt. If you conclude that a defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot be proved—cannot prove guilt by itself. If someone other than a defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt but only if the defendant was present and knew about that conduct or if not present authorized the other person's actions. . . . If you conclude that the defendant tried to hide evidence, discourage someone from testifying, or authorize another person to hide evidence or discourage a witness, you may consider that conduct only against that defendant." --------
Appellant objected to Cowan's testimony on hearsay and confrontation grounds but does not separately on appeal argue that the trial court improperly admitted Cowan's testimony, only that the court improperly denied the limiting instruction. In any event, appellant could not have been prejudiced by the evidence of consciousness of guilt reflected in Cowan's testimony. The same consciousness of guilt was reflected in the recorded phone call between appellant and Contreras, in which appellant furiously pressured Contreras to call Cowan's phone number. The jury having heard the recorded phone call and Gomer's testimony that Cowan told him about receiving a call offering to compensate Gomer for not testifying, any error with respect to Cowan's testimony was harmless under both state and federal standards.
III.
Appellant's final contention is that the trial court erred in failing to strike at least one of his prior convictions in the interest of justice. (§ 1385, People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The strike convictions were for attempted robbery in 1996 and burglary in 1998. Defense counsel argued below that in light of appellant's age, background and upbringing, a three strikes sentence in this case would amount to cruel and unusual punishment under the state and federal Constitutions, and pointed out that one of the priors was for stealing a power tool from a garage and neither of the priors were strikes at the time they were committed, as the three strikes law had not yet been enacted.
In declining to strike the priors, the trial court acknowledged its obligation to consider appellant as an individual, but that it was "mindful" of appellant's behavior since being paroled after his first prison sentence. According to the probation report, after being convicted of attempted robbery and false imprisonment in 1996, appellant was placed on probation with one year in jail, then released from custody in October 1996. Probation was revoked eight months later, in June 1997, based on his commission of the burglary, and he was sentenced to prison in April 1998. He was paroled in September 2008, returned to custody seven months later, in April 2009, paroled in May 2009, and returned to custody in August 2009, paroled in January 2010, and returned to custody two months later, paroled in June 2010, and returned to custody after six months; then paroled in April 2011, a month before his arrest in the present case. In addition to this history, the trial court noted that the present offense involved "great violence," "significant injury" to Gomer, and was "inexcusable."
"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) " '[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Id. at p. 378, quoting People v. Myers (1999) 69 Cal.App.4th 305, 309.)
"Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. '[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' " (Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.)
Appellant argues that the trial court erred in failing to consider mitigating factors including his having been raised by a physically abusive father, the age of his prior strike convictions, committed 14 and 15 years before the present offenses, and the absence of violence shown in the facts of the prior offenses. He relies heavily upon Carmony, supra, 33 Cal.4th at pages 378-379, which discussed the Court of Appeal's error in focusing upon a single factor—the circumstances of the current offense—rather than balancing all relevant factors. In Carmony, the trial court had declined to strike a prior conviction after considering factors including the defendant's lengthy criminal record, including two prior convictions for failing to register as a sex offender, lack of effort to address his substance abuse issues, spotty work history, and apparently poor prospects for the future; the Court of Appeal reversed because it viewed the present offense as "the most technical violation" of the registration requirement the court had seen. (Id. at pp. 373, 378-379.)
In the present case, we do not take the trial court's failure to specifically mention the potentially mitigating factors in appellant's background as indicating the court was unaware of or failed to consider them. The court acknowledged the need for an "individualized" assessment, and defense counsel's written memorandum and oral argument on the Romero motion emphasized these points. The court's remarks indicate that it viewed such factors as outweighed by appellant's history of parole violations and the facts of the present case, both of which are relevant considerations. After spending 10 years in prison, between his release on parole in 2008, and the present offense in 2011, appellant sustained four parole violations; his longest period out of custody was six months. The current offense was committed only a month after appellant's last release on parole, and was considerably more egregious than his prior offenses.
It is appellant's burden to demonstrate that the trial court abused its discretion. (Carmony, supra, 33 Cal.4th at pp. 376-377.) "Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' ([People v.] Strong [(2001)] 87 Cal.App.4th [328,] 338), the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Carmony, at p. 378.) This is not such a case.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.