Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. YA063443 of Los Angeles County, Dudley W. Gray, II, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Michael S. O’Neal, Sr., appeals from the judgment entered following his conviction, by jury trial, for robbery (2 counts), burglary (2 counts), elder abuse (2 counts), false imprisonment of an elder, attempted theft of access card information, identity theft, and possession of an assault weapon (2 counts), with enhancement findings for committing crimes against victims 65 or over, firearm use, and great bodily injury to victims 70 or over (Pen. Code, §§ 211, 459, 368, subd. (b)(1), 368, subd. (f), 664/484e, 530.5, 12280, 667.9, 12022.5, 12022.53, 12022.7). Sentenced to state prison for 24 years, O’Neal claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
a. The robbery of Josephine Hill.
On the afternoon of August 6, 2005, 77-year-old Josephine Hill returned home from the grocery store. Hill lived alone at New Horizons, a condominium complex for seniors in Torrance. As she finished unloading her groceries, Hill heard a man’s voice behind her say “Freeze.” She froze and did not turn around. The man pushed her into the bedroom. He made her kneel on the floor and put her head on the bed. Then he grabbed a sweater Hill had left on her bed and threw it over her head. Using plastic zip ties, the man tied Hill’s hands behind her back and bound her ankles.
All further calendar references are to the year 2005 unless otherwise specified.
Hill felt what seemed to be a gun pressed against her neck. The man threatened to kill her if she disobeyed his orders. He took rings from her fingers and other jewelry. He went through her dresser. He asked if she had a PIN (personal identification number) for her credit card. When Hill said no, the man got very agitated and said, “Oh, yes, you do. Everyone has a PIN number.” Hill said if she had one she would give it to him. The man said nothing more and then Hill heard him leave. She never saw his face.
Hill could not free herself from the plastic zip ties binding her hands and ankles. She became dehydrated and delirious before being discovered by her granddaughter more than 24 hours later. Police and fire department personnel arrived and took Hill to the hospital for treatment of injuries to her arms and legs.
The robber had taken all of Hill’s jewelry, as well as her credit card and cash from her purse. That same day, her credit card was used at a Shell station in Palmdale.
Torrance Police Officer Mark Ponegalek had been a police officer for only seven months. When he and his partner arrived at Hill’s condominium, she was being attended to by Fire Department personnel. Hill was “[i]ncoherent, out of it,” and could not provide a description of the robber. After being taken to the hospital, Hill was still incoherent. Nevertheless, Ponegalek tried to obtain a description of the suspect by asking Hill if the robber looked like him. Hill answered yes.
Ponegalek testified: “A I tried to get a suspect description by referencing myself. [¶] Q What did you say? . . . [¶] A For example, was he a white guy like myself? Did he have hair like mine? Was he about my height, my build, and so on. [¶] Q So you asked her if he was . . . a white guy like yourself, and what did she say? [¶] A Yes.”
Torrance Police Officer Patrick Ghesquiere interviewed Hill at the hospital the following day. Hill was still not entirely lucid. She could only provide “[a]n extremely vague description” of “a male of an unknown race with a large stature and a deep booming voice. . . .” Ghesquiere testified Hill was “very specific in that she . . . couldn’t tell me the race of the subject.”
After contacting Hill’s bank, Ghesquiere went to a Target store in Gardena where someone had tried to use Hill’s credit card on August 8. The store had a surveillance videotape of the transaction which showed a man in an orange shirt standing at a cashier’s station and then leaving the store. Ravon Jones, the cashier who had processed the attempted transaction, told Ghesquiere the customer twice tried to enter a PIN into the credit card machine. When the transaction would not go through because the PIN was incorrect, the man told Jones he was going outside to get the PIN from his wife. The man never returned. Jones identified defendant O’Neal’s photograph from a six-pack array as the customer who had tried to use Hill’s credit card.
On August 30, Ghesquiere re-interviewed Hill. She again described the robber only as a man with a “powerful, booming voice.” Hill did not describe him as a white man with red hair.
b. The robbery of Mary Gilliland.
On November 18, 74-year-old Mary Gilliland was living at the New Horizons senior complex in Torrance. She returned home from shopping at the mall shortly after noon. At about 1:30 p.m., she went outside to get her mail. When she returned to her condominium she closed, but did not lock, the sliding glass door and went into the bathroom. As she was sitting on the toilet, the bathroom door was suddenly opened by a black man who stuck a gun in her face and asked for her gold and jewels. The man’s face was covered up to his eyes with a brown cloth. He was wearing a baseball cap with a postal logo, a long-sleeved “postman’s shirt” with a “postman’s emblem,” and gray-blue pants that looked like “postal pants.” The gun was a black handgun with a long barrel.
The man ordered Gilliland into her bedroom, where he told her to lie down on the bed. When Gilliland protested that her pacemaker might shock her, the man told her to sit on the edge of the bed instead. Using plastic zip ties, he tied her hands behind her and bound her feet. He took jewelry from the top of her dresser and put it into a black bag that looked “like a book bag of some kind or carrying bag.” Gilliland was watching the man out of the corner of her eye, but he threatened to hit her if she looked at him, and then took some pajamas from the dresser and wrapped them around her face. Gilliland said that if he wanted money, her purse was on the dining table. The man retrieved her purse and dumped its contents onto the bed. He shoved her credit card in front of her face and asked for her PIN. When Gilliland said she didn’t have one, he asked for her ATM card number. Gilliland said she didn’t have an ATM card. Minutes later, the man pulled the plastic zip ties as tight as he could, pulled a ring off her finger and a diamond charm from her neck, and left the condominium.
Jose Casillas worked as a gardener at New Horizons. On November 18, at 1:30 p.m., he saw a “[s]uspicious looking car with a mailman in it.” What Casillas found suspicious was that he had never seen a mailman in a private car before. The car drove right past Casillas and he got a clear view of the driver’s face. The driver was a black man who was wearing a “postal shirt with the postal patch on it.” Casillas identified O’Neal from a photo array as the driver.
Meanwhile, Gilliland had managed to get the pajamas off her face and, noticing one of her neighbors walk past her bedroom window, she screamed for help. Her neighbors managed to cut the zip ties. Police and paramedics arrived and took Gilliland to the hospital; she had sustained a lot of bruising to her arms and wrists.
Detective Edward Desbiens showed Gilliland a photo array, from which she identified O’Neal as the robber. She wrote on his photograph that she had chosen it because of “[t]he roundness of his head. His eyes look like the one.” At trial, Gilliland testified she picked O’Neal’s photograph “because of his forehead and his eyes and the roundness of his face,” and testified she had gotten “a very good look at the eyes.”
David Johnson, a manager at the Torrance Post Office, testified O’Neal had worked there from 1994 to 2000 as a letter carrier. One of O’Neal’s routes included the New Horizons senior complex.
c. The investigation.
On November 28, six detectives in unmarked cars were watching a house in Lancaster. At 7:30 a.m., a woman left the house and drove off in a dark minivan. At 10:30 a.m., O’Neal left the house and drove off in a gray minivan. After going to a Shell station in Palmdale, he stopped at a child care center in Compton and then drove to Torrance.
In Torrance, O’Neal parked at Acacia and Torrance Boulevard, got out, walked up to several buildings, looked around for 15 or 20 seconds, then got back into his van and continued driving. Then he parked across the street from a medical building. He reclined his seat back until his body was just below the window line, with only his head visible. A detective saw him looking in the direction of “a couple of elderly people” who were walking from the medical building to a parking lot. O’Neal was detained. After a loaded .38-caliber Smith & Wesson revolver was discovered in the van, he was arrested.
When O’Neal’s van was subsequently searched at the tow yard, the following items were discovered: a “blue FedEx shirt,” a baseball cap, six pairs of gloves that were of “[d]ifferent . . . styles, cotton, leather, gardening gloves,” small zip ties, a knife or box cutter, a large screwdriver, a pair of binoculars, a camera, a pair of sunglasses, a black backpack containing “long-style zip ties.” Two of the zip ties “were already clasped together at the ends ready to be tied.” A detective testified this was significant because “having zip ties already clasped together is a quick and easy . . . way to handcuff people[ ] . . . so you don’t have to stand there and put their hands behind their back and try to get the end portion in the front portion while you’re trying to maintain custody of the person . . . .”
A search warrant was executed at the Compton child care center, where police found a United States Postal Service postman’s shirt and a shopping bag containing “several large-style zip ties.” These were the same type as those found inside O’Neal’s van. A search warrant was executed at the Lancaster residence where the surveillance had begun. In the garage, police found postal uniforms. In the closet of the master bedroom, there was men’s clothing on one side and women’s clothing on the other. On the men’s side, police found an orange shirt. There was a gun safe in the closet which they opened using a key found in O’Neal’s van. Inside the safe were two assault rifles. In a dresser in the master bedroom police found a piece of mail addressed to O’Neal and paperwork for one of the assault rifles bearing O’Neal’s name.
On the day he was arrested, O’Neal gave a statement to Detective Desbiens. He denied having been in Lancaster that day. He said he had spent the previous night with a friend in Carson, then left Carson about 1:00 p.m. to drive to the Torrance courthouse to pick up some child custody papers. In the courthouse parking lot, he saw two men stash a paper bag behind some bushes. He retrieved the bag and found a revolver inside. He thought about turning the gun in to the authorities, but he figured they wouldn’t believe him so he put the bag in his van. After leaving the courthouse, he was driving along Torrance Boulevard when he had to stop because his van overheated. That was when the police stopped him.
Desbiens asked O’Neal if he had been in the Gardena Target store on August 8, and showed him two photographs made from the store’s surveillance videotape. The photographs showed O’Neal wearing the same orange shirt that had been recovered from the bedroom closet at the Lancaster residence. O’Neal said he had been shopping at the Target store and that the credit card belonged to his wife. He denied any connection to the robberies.
2. Defense evidence.
O’Neal testified in his own defense. He had worked as a letter carrier until July 2000, and the New Horizons complex was on his route. He acknowledged having pled guilty to mail obstruction, but denied that was why he left the Post Office.
In November 2005, he was living with his sister in Garden Grove. He did not live at the Lancaster residence, which was his wife’s house. About 5:30 or 6:00 a.m. on November 28, his friend Donna Anderson dropped him off at the Lancaster residence after he had spent the night in Carson. He went to the Lancaster residence to pick up some bills. The Compton child care center was operated by his wife. He went there later in the morning because his wife wanted him to pick up her mail. He then drove to Torrance to look for a child support office, but he couldn’t find it. He stopped at the Torrance courthouse to ask directions. He denied having found a gun in a bag at the courthouse. He told the police this after they beat him up. He denied having had a gun, binoculars, postal clothing or zip ties in his van.
Asked where he had been on August 6, the day Hill was robbed, O’Neal testified he would have to check his schedule. He denied having been at the Gardena Target store on August 8. He was either working, with friends, or taking his parents to the doctor, but he needed to check his calendar book, which the police had taken from him. He denied he was the man shown on the Target surveillance tape. He had not been anywhere near Gardena that day, although he could not say exactly where he had been until he checked his calendar book. Asked where he had been on November 18, the day Gilliland was robbed, O’Neal testified he was either out with friends or working, but that he needed to check his calendar book.
O’Neal testified he resigned from the post office in July 2000. He denied having retained any of his postal uniforms when he left. He did not know anything about the postal clothing found by the police. He never stayed at the Lancaster residence. However, the two assault rifles found in the bedroom closet at the Lancaster residence belonged to him.
3. Rebuttal evidence.
Detective Desbiens testified he did not take a calendar from O’Neal when he was arrested, and that no calendar was ever booked into evidence. Desbiens also testified O’Neal admitted to him that he had been at the Gardena Target store on August 8.
David Johnson, the Post Office manager, testified O’Neal did not resign, but had been fired for “stealing credit cards.” To Johnson’s knowledge, O’Neal did not turn in all his uniforms when he left the job.
CONTENTIONS
1. The trial court committed Marsden error.
2. The trial court erred by admitting evidence that O’Neal was observed stalking elderly people.
3. The trial court erred by admitting evidence that no similar robberies were reported following O’Neal’s arrest.
4. The prosecutor committed misconduct by asking O’Neal if the police officers who testified had been lying.
5. The prosecutor committed misconduct by asking O’Neal why a logical defense witness had not been called.
6. There was cumulative error.
7. The trial court committed Cunningham error when it imposed an upper term sentence.
DISCUSSION
1. There was no Marsden error.
O’Neal contends the trial court committed Marsden error by not allowing O’Neal to explain why he wanted to substitute appointed counsel. This claim is meritless.
People v. Marsden (1970) 2 Cal.3d 118.
a. Legal principles.
“Marsden motions are subject to the following well-established rules. ‘ “ ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]” ’ ” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
Simply because a defendant does not like or think highly of his attorney does not compel a substitution of counsel. “ ‘ “[I]f a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.” ’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 857.) “We do not find Marsden error where complaints of counsel’s inadequacy involve tactical disagreements.” (People v. Dickey (2005) 35 Cal.4th 884, 922.)
“Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial ‘is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel. [Citations.]’ [Citation.]” (People v. Barnett, supra, 17 Cal.4th at p. 1085.)
b. Proceedings below.
O’Neal complains that on two occasions, just before trial began on July 13, 2006, and then again at sentencing, the trial court erred by summarily denying his Marsden requests without giving him an opportunity to fully state his reasons for wanting new counsel.
O’Neal fails to mention that, prior to July 13, there had already been two in camera Marsden hearings. At a hearing on May 8, O’Neal complained defense counsel was balking at filing a change of venue motion based on O’Neal’s claim the Torrance Police Department was biased against him. The trial court advised O’Neal this was a tactical decision for defense counsel to make. The court asked O’Neal to discuss the matter further with counsel and told him that “[i]f there’s still any differences of opinion or problems, I’ll speak to you when you come back to court in June.”
A second Marsden hearing was held on June 6, at which time O’Neal complained the change of venue motion had not yet been filed, and that defense counsel had been disrespectful and hostile. O’Neal said defense counsel had yelled at him, used profane language and accused him of being untruthful. O’Neal also said defense counsel made him feel “unsafe” and “threatened.” Asked to respond, defense counsel explained O’Neal initially told him one story about the gun police said they had found in his van, but then later gave him a completely different story. Defense counsel said he confronted O’Neal with this contradiction: “I simply asked Mr. O’Neal not to lie to me. I do admit I was emphatic. I did not, however, use profanity. But I was very emphatic with Mr. O’Neal that what I saw on that videotape [i.e., of O’Neal’s police interview] is very much at odds with the information that he’s currently giving me.” O’Neal told the trial court defense counsel was lying, and again said he did “not feel safe around” defense counsel.
The trial court told O’Neal defense counsel had gotten upset “because there has to be a bond of truthfulness between a defense attorney and the client.” Noting it was well-acquainted with defense counsel, having worked with him for many years, the trial court told O’Neal, “There’s no way that this gentleman is going to do any harm to you. I just don’t buy that.” The trial court denied O’Neal’s Marsden motion.
Defense counsel submitted a change of venue motion to placate O’Neal. On the morning of July 13, this motion was argued and denied. When the court announced it was sending the case out for trial, O’Neal made a Faretta motion for self-representation, again complaining defense counsel had called him a liar. However, when O’Neal said he was not prepared to start trial immediately, the trial court denied his Faretta motion.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].
That afternoon, in the trial department, defense counsel said O’Neal wanted to represent himself. When the trial court explained the pitfalls of self-representation, O’Neal asked for new appointed counsel instead, but then reversed himself and asked if he could get a continuance if he chose to represent himself. The trial court pointed out jury selection was just about to start and said O’Neal could not have a continuance. O’Neal again said he was afraid of defense counsel, but the trial court assured him defense counsel was not dangerous. Trial commenced and O’Neal was convicted.
At the sentencing hearing, O’Neal asked for new counsel because he wanted to have a new trial motion prepared. He claimed the trial had been unfair and that defense counsel had told him not to expect a fair jury, saying: “We pick professional juries whose job is to convict you, stupid. You can’t get a fair trial in Torrance.” O’Neal said defense counsel never wanted to communicate with him, had been hostile, and had used profanity.
The trial court refused to appoint new counsel, remarking that defense counsel “did an extraordinary job for you. The evidence of your guilt was overwhelming in this case, and throughout the entire proceedings he did . . . an exceptional job in pursuing any gaps in the evidence or anything that might work to your benefit, and, frankly, there just wasn’t any. [¶] Despite all that, he was able to secure a not guilty on one of the charges and some of the special allegations were found to be not true especially through his exceptional work [as] a defense lawyer.”
c. Discussion.
The record demonstrates defense counsel was willing and able to represent O’Neal’s interests competently. O’Neal was given repeated opportunities to voice his complaints, even if not always in camera. (See People v. Madrid (1985) 168 Cal.App.3d 14, 19 [in camera hearing, although the better practice, is not always required to resolve Marsden issue].)
As to the accusations that defense counsel had acted disrespectfully and accused O’Neal of lying, the trial court was entitled to believe defense counsel’s version of events. (See People v. Jones (2003) 29 Cal.4th 1229, 1245 [“ ‘To the extent there was a credibility question between defendant and counsel at the hearing, the court was “entitled to accept counsel’s explanation.” ’ ”].) O’Neal’s assertions that he was afraid of defense counsel were hardly credible. Equally fantastic were his claims at sentencing that defense counsel had told him he was stupid to believe he could get a fair trial in Torrance. “Trial judges must be wary of defendants who employ complaints about counsel as dilatory tactics or for some other invidious motive.” (People v. Hardy (1992) 2 Cal.4th 86, 138.) O’Neal’s performance at the sentencing hearing, when he rapidly switched back and forth between Marsden and Faretta requests, suggests that something like this was going on.
The trial court did not abuse its discretion by concluding O’Neal’s complaints were insufficiently credible to warrant substitution of counsel.
The trial court did not abuse its discretion by implicitly concluding that “whatever breakdown occurred between appellant and his counsel was caused by appellant’s intransigence and failure to cooperate. Such a showing is insufficient to support a motion to substitute counsel.” (People v. Kaiser (1980) 113 Cal.App.3d 754, 761; see People v. Smith (1993)6 Cal.4th 684, 696-697 [“a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict”].) It appears that any lack of trust between O’Neal and defense counsel had been created when O’Neal told conflicting stories about a key piece of evidence, the loaded handgun in his van.
2. Admission of evidence O’Neal had been stalking elderly people.
O’Neal contends the trial court erred by admitting evidence he had been surreptitiously watching elderly people the day he was arrested. The trial court did not err by admitting this evidence. Even if it did, any error was harmless.
a. Background.
During trial, the prosecution made the following evidentiary proffer. A detective would testify that, on November 28, he witnessed O’Neal surreptitiously watching elderly people as they left a medical building in Torrance, about a mile from the New Horizons complex. Because O’Neal’s van was found to contain zip ties that had been readied for use as handcuffs, and a loaded gun, the prosecutor said he wanted to argue O’Neal had been getting ready to commit another robbery. Defense counsel argued there was no evidence these elderly people were residents of New Horizons and, therefore, the evidence would be more prejudicial than probative.
After the trial court ruled the evidence was admissible, the detective testified he had watched O’Neal park his van on Acacia, just south of Torrance Blvd. “I saw him initially seated straight up in his driver’s seat, and then he reclined the seat into a laid-back position, like this, just below the line. (Indicating).” The detective could still see O’Neal’s head: “I could see him shifting around in the driver’s seat, positioning his body to where it appeared to me like he was just below the surface of the window line.” O’Neal turned his head in the direction of the Coastal Medical Corporation, across the street from where he was parked. The detective could see O’Neal was looking at “a couple of elderly people [who walked] from the medical building. They walked . . . south on Acacia to where a lot of cars were parked.”
O’Neal argues this testimony should not have been admitted: “The inference that appellant appeared to be casing elderly people because he was reclining while looking in the direction of elderly people was speculative.” The Attorney General argues the evidence was properly admitted under Evidence Code section 1101, subdivision (b), “to demonstrate [O’Neal’s] modus operandi of targeting elderly people and following them home, which was relevant to establishing his identity as the perpetrator of the charged crimes committed against Hill and Gilliland.”
b. Legal principles.
“Ordinarily, evidence of a person’s character is inadmissible to demonstrate his or her conduct on a particular occasion (Evid. Code, § 1101, subd. (a)), except that evidence is admissible to establish ‘that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.’ (Evid. Code, § 1101, subd. (b).)” (People v. Prince (2007) 40 Cal.4th 1179, 1271.) “To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) “Evidence going to the issue of identity must share distinctive common marks with the charged crime, marks that are sufficient to support an inference that the same person was involved in both instances. [Citation.]” (People v. Prince, supra, 40 Cal.4th at p. 1271.)
“There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” (People v. Kipp, supra, 18 Cal.4th at p. 371.)
c. Discussion.
In People v. Prince, supra, 40 Cal.4th 1179,three young white women had been murdered at the Buena Vista Gardens apartment complex and at an adjacent complex. Cotalessa-Ritchie, a young white woman living at Buena Vista, testified that, a few days before one of the murders, she had been followed home from a nearby convenience store by the defendant, a young black man who, it turned out, also lived at Buena Vista Gardens. Prince held this testimony was properly admitted: “There was evidence that defendant had followed other victims – including witnesses who testified at trial – to their homes during the middle of the day; Tarr and Weinhold were murdered in their apartments in the same complex where Cotalessa-Ritchie resided and at the same time of day. The women had been murdered within a short time of the Cotalessa-Ritchie incident, and Schultz was murdered in an adjacent complex. There was evidence that murder victims Tarr and Schultz both had been followed home by a young African-American man after they left their apartments for a brief period, and murder victim Weinhold had gone in and out of her apartment while doing laundry. Schultz, Tarr, and Weinhold had been followed up a flight of stairs to their second-story apartments; defendant followed Cotalessa-Ritchie to the bottom of the stairway leading to her second-story apartment. Finally, Cotalessa-Ritchie was of a similar age and belonged to the same race and gender as all the murder victims and most of the other burglary or attempted burglary victims. It was within the trial court’s discretion to conclude that the Cotalessa-Ritchie incident was highly similar to the stalking activity engaged in by the perpetrator of several of the other charged crimes, thereby providing evidence that it was defendant and not some other man who committed the charged crimes.” (Ibid.)
The Attorney General argues that, like the evidence of stalking activity in Prince, the evidence that O’Neal was watching elderly people outside the medical building “shared substantial distinctive and unusual characteristics with the acts underlying the charged robbery offenses so as to be highly relevant to modus operandi and, in turn, to identity.” We agree. Both Hill and Gilliland were elderly women who had been robbed inside their condominiums at the New Horizons complex, in the middle of the day, shortly after having gone out. They were each confronted with a gun, threatened with violence, and bound with zip ties. The stalking evidence showed O’Neal had been watching elderly people leave a medical building not far from the New Horizons complex. It was the middle of the day. Inside his van, O’Neal had a loaded gun and zip ties, two of which had been readied for use as handcuffs.
In any event, even assuming arguendo the stalking evidence had been improperly admitted, any error was harmless given the strength of the prosecution’s case. O’Neal argues the evidence against him was thin. Not so. Three eyewitnesses had identified him: Gilliland, the gardener Jose Casillas, and the Target cashier Ravon Jones. Hill’s wildly inaccurate suspect description had been adequately explained by her lack of lucidity and Officer Ponegalek’s inexperience. Despite O’Neal’s sometimes incredible lies to the contrary, he had been linked to postal clothing found at both the Compton child care center and the Lancaster residence, to zip ties found at the Compton child care center, and to the orange shirt he had worn when he tried to use Hill’s credit card at Target. O’Neal completely destroyed his own credibility when he testified. The prosecution demonstrated he lied about: trying to use Hill’s credit card at Target; having a loaded gun in his van the day he was arrested; having been fired from the Post Office for stealing credit cards; having retained possession of his Post Office uniforms; having spent the night at the Lancaster house; and, being unable to give his exact whereabouts because the police had taken his appointment book.
In sum, the evidence against O’Neal was overwhelming and any error in admitting the stalking evidence was harmless.
3. Evidence that similar robberies stopped after O’Neal’s arrest.
O’Neal contends the trial court erred by admitting evidence that since November 28, 2005, the day of his arrest, the police received no more reports of similar robberies. The evidence was properly admitted. But even if it was not, any error was harmless.
Between the time O’Neal was arrested and Detective Desbiens testified, the detective had been continuously assigned to the robbery detail. During that time, all reports of robberies were seen by either Desbiens or his partner. Desbiens testified that, since O’Neal’s arrest, there had been no other reports of a robbery at New Horizons in which an elderly victim was tied up using plastic handcuffs and a covering was thrown over the victim’s head. The trial court allowed this evidence because of the distinctive characteristics shared by the Hill and Gilliland robberies.
O’Neal argues this evidence should have been excluded as too speculative: “The [trial] court found the evidence probative because the crimes [against Hill and Gilliland] were unique. This was the wrong focus because the fact that the crimes were unique added nothing to the equation of whether the fact that they stopped after appellant’s arrest was significant.” We disagree. That the Hill and Gilliland robberies shared distinctive identifying characteristics is what made this evidence probative. The more distinctive the shared characteristics, the more forceful the resulting inference that the reason such robberies ceased after O’Neal’s arrest was because he had been the perpetrator.
Hence the importance of the fact the two robberies shared so many small details. In addition to the gun and the plastic zip ties used as handcuffs, both victims were taken into the bedroom, bound hand and foot, had their heads covered by an item of their own clothing, were asked for PIN numbers, and received injuries because the zip ties had been so tightly applied.
O’Neal argues that, even if one inference could be that O’Neal had been the perpetrator, there were other possible explanations, e.g., that the actual perpetrator died or had been arrested for another crime. But those other reasonable inferences went to the weight of this evidence, not its admissibility. (See People v. Garcia (1988) 201 Cal.App.3d 324, 329 [existence of possible conflicting inference goes to weight rather than admissibility of evidence because conflicting inferences are for jury to resolve].) O’Neal also complains the evidence signaled the jury that he had been in custody since his arrest, which undermined the presumption of innocence. However, we agree with the Attorney General that “the jury could hardly have been surprised that appellant was in custody given the gravity of the offenses charged.”
In any event, even if erroneous, the admission of this evidence was harmless in light of the overwhelming evidence of O’Neal’s guilt, as discussed above.
4. Prosecutor did not commit misconduct by asking O’Neal if police officers who testified had been lying.
O’Neal contends the prosecutor committed misconduct by asking him, on cross-examination, if the police officers who had given testimony contradictory to his had been lying. This claim is meritless.
a. Proceedings below.
O’Neal complains that, after testifying he did not have a loaded gun, binoculars, postal clothing and zip ties in his van the day he was arrested, the prosecutor repeatedly asked him if the police officers had been lying about what they found:
“Q Did you hear the officers testify to what they found inside your car? Did you hear that, Mr. O’Neal?
“A I heard . . . them testify about some things.
“Q Were those all lies?
“A Yes, it was.
“Q So Detective Moreno is lying when he said he found the postal material and the zip ties in your car? That was a lie?
“A Of course, it was. Yes, it was.
“Q When he testified to seeing a gun underneath your seat that was a lie too?
“A Yes, it was.”
Then, a little later:
“Q So Detective Desbiens is a liar; correct?
“A Yes, he’s a liar. Him, his partner, Detective Rudolph.
“Q He’s a liar too?
“A Yes. [¶] He beat me up and tried to make me say I had a gun. I want that on record.
“Q Detective Moreno, is he a liar too?
“A I don’t know who is Moreno. . . .
“Q The one who found the gun in your car, he testified to that. He’s a liar too?
“A . . . Of course. . . .
“Q Were all the police officers who testified in this case lying?
“A Yes.”
Citing People v. Zembrano (2004) 124 Cal.App.4th 228, O’Neal argues the prosecutor’s “were they lying” questions should not have been permitted, and that asking them amounted to prosecutorial misconduct.
b. Discussion.
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair constitutes prosecutorial misconduct under California law only if it involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (People v. Hill (1998) 17 Cal.4th 800, 819.) “When we review a claim of prosecutorial remarks constituting misconduct, we examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief complained of. [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 689.)
As our Supreme Court explained in People v. Chatman (2006) 38 Cal.4th 344, 381-382, italics added: “Courts from various jurisdictions have treated ‘were they lying’ questions differently. One line of cases concludes they are always improper, while another concludes they are never so. [Citation.] Zambrano joins a third line of cases that counsels a trial court to consider these questions in context. [Citation.]” According to Chatman: “If a defendant has no relevant personal knowledge of the events, or of a reason that a witness may be lying or mistaken, he might have no relevant testimony to provide.” (Id. at p. 382.) However, “[a] defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. . . . Were a defendant to testify on direct examination that a witness against him lied, and go on to give reasons for this deception, surely that testimony would not be excluded merely because credibility determinations fall squarely within the jury’s province. Similarly, cross-examination along this line should not be categorically prohibited.” (Id. at p. 382.)
O’Neal was a percipient witness to the events at issue, i.e., whether or not he had certain items in his van. On direct examination, O’Neal gave no testimony whatsoever regarding the contents of his van; hence, this case is not like Zembrano where the “[d]efendant had already testified, quite clearly, that his recollection of the events surrounding the alleged drug transaction differed from the officers’ in every material respect.” (People v. Zembrano, supra, 124 Cal.App.4th at p. 242.) Moreover, O’Neal responded to the “were they lying” questions by accusing the police of having physically abused him, thus providing the jury with a specific reason why the police version of events should not be believed. (See People v. Tafoya (2007) 42 Cal.4th 147, 179 [“by choosing to testify, defendant put his own veracity in issue,” and the “prosecution’s [were they lying] questions allowed defendant to clarify his position and to explain why [a codefendant and an eyewitness] might have a reason to testify falsely”].)
Earlier in his cross-examination, O’Neal was asked if he had told police about finding the gun when the two men left it in the courthouse parking lot, even though the story was untrue: “Q Do you remember you told them you saw two guys with a bag, put it down, and you went and got the bag? [¶] A I sure did tell them that. [¶] Q And there was a gun in the bag? [¶] A And the reason why I said that on film is because . . . the [detective] here and his partner [Detective] Rudolph wanted me to say that it was my gun. [¶] . . . [¶] He beat me up.”
There was no prosecutorial misconduct in asking these questions.
5. Prosecutor did not commit misconduct by asking if alibi witness would testify.
O’Neal contends the prosecutor committed misconduct by repeatedly asking if his alibi witness would be testifying. This claim is meritless.
Inculpatory evidence had been found at the Lancaster residence, e.g., the postal clothes, the zip ties and the assault rifles. To demonstrate O’Neal’s connection to this evidence, police officers testified they saw him leave the Lancaster residence on the morning of November 28. When O’Neal testified, he denied living at the Lancaster residence and said he had been living in Garden Grove. On cross-examination, O’Neal testified he spent the night of November 27 in Carson with his friend Donna Anderson, and that Anderson gave him a ride to the Lancaster residence early the next morning. The prosecutor asked if Anderson would be testifying. After a defense objection was overruled, O’Neal answered: “All of my witnesses that I asked to come to court in my defense, the court denied me to have witnesses to come to court for my defense.” The trial court struck O’Neal’s answer, saying: “As far as I know it’s absolutely untrue.”
Although O’Neal complains the prosecutor “repeatedly asked” if Anderson would be testifying, the record shows the question was only asked twice, and that the reason the question had been repeated was because of an intervening objection from defense counsel. O’Neal also argues that asking him this question on cross-examination was qualitatively different from the prosecutor properly commenting on the lack of logical evidence during closing argument. (See People v. Cornwell (2005) 37 Cal.4th 50, 90 [prosecutor may comment on defendant’s failure to call logical witnesses].) O’Neal asserts that asking him about the missing evidence on cross-examination “shifted the burden of proof to [him] by forcing him to explain where his witnesses were and why they were not testifying.” But O’Neal cites no supporting authority for this assertion, and we cannot see why the result should be different just because the same “missing evidence” message was communicated to the jury during cross-examination rather than closing argument. (Cf. People v. Earp (1999) 20 Cal.4th 826, 857 [prosecutor’s improper comment on defendant’s post-Miranda silence might have occurred either during cross-examination of defendant’s girlfriend or during closing argument]; People v. Champion (2005) 134 Cal.App.4th 1440, 1450-1452 [prosecutor did not improperly comment on defendant’s post-Miranda silence either during defendant’s cross-examination or during closing argument].)
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602].
There was not prosecutorial misconduct.
6. There was no cumulative error.
O’Neal contends the cumulative prejudicial effect of the various trial errors he has raised on appeal requires the reversal of his conviction. However, we have found at most only a few insignificant errors that were clearly harmless. O’Neal’s trial was not fundamentally unfair. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056 [“Defendant contends the cumulative prejudicial effect of the various errors he has raised on appeal requires reversal of the guilt and penalty judgments. We have rejected his assignments of error, with limited exceptions in which we found the error to be nonprejudicial. Considered together, any errors were nonprejudicial. Contrary to defendant’s contention, his trial was not fundamentally unfair, even if we consider the cumulative impact of the few errors that occurred.”].)
7. There was no Cunningham error.
O’Neal contends the trial court’s imposition of an upper term sentence on one of the robbery convictions violated Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856]. This claim is meritless.
In Apprendi v. New Jersey (2000) 530 U.S. 466 147 L.Ed.2d 435, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403, the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely . . . .” (Id. at p. 1254.)
However, Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. (Id. at p. 812.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Currently pending before the California Supreme Court, in People v. Towne, review granted July 14, 2004, S125677, is the issue of whether a trial judge may sentence a defendant to an upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory.
Here, in pronouncing sentence, the trial court said: “As far as mitigating factors, there are none. [¶] As far as aggravating factors, it does appear that Mr. O’Neal has previously suffered convictions, that his criminal conduct appears to be increasing in nature and severity, that the way he conducted these crimes exhibited a high degree of cruelty and callousness and a high disregard for human life. He took advantage of persons who were very elderly. He presents himself as a continuing . . . danger to society. [¶] So considering those and the other aggravating factors that are enumerated in the court rules, I find that they greatly outweigh the absence of any mitigating factors, and so [the] high term will be the appropriate place to begin.”
O’Neal initially argues the trial court erred by basing the upper term entirely on non-recidivist aggravating factors, but then concedes that at least one of those aggravating factors was related to recidivism. Black II only requires that “one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) O’Neal argues Black II was wrongly decided. However, as he acknowledges, that case is binding upon this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
According to the probation report, O’Neal was convicted of credit card fraud in 2000, and obstruction of the mail in 2001.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.