Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F03049
BUTZ, J.After a jury trial defendant Lonnie Dale Robinson was found guilty of three counts of robbery of the second degree (Pen. Code, §§ 211, 212.5). In a second phase of the trial the jury also found true allegations that defendant had previously been convicted of five serious felony counts of robbery. Sentenced to state prison for an aggregate term of 105 years to life, defendant appeals.
Undesignated statutory references are to the Penal Code.
Defendant contends that (1) there is not sufficient evidence to uphold the convictions of robbery and that the trial court erred prejudicially in: (2) denying a motion to sever three other counts of robbery (as to which the jury was ultimately unable to agree and which were dismissed); (3) denying a motion in limine to bar evidence of his identification by two victims at a show-up shortly after the robberies of which he was convicted; (4) failing to instruct on attempted robbery as a lesser included offense; (5) accepting the guilty verdicts; and (6) mistaking the scope of its discretion at sentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Madeline Thompson was working at cash register four at the Rite Aid on Freeport Boulevard near City College about 9:00 p.m. on April 7, 2003. Defendant walked into the store. She recognized him, he had robbed the store before, and from his demeanor she knew he was going to do so again. As he approached the register she said she would be right with him and began to walk away to tell her boss. Defendant held his hand in his pocket in a way that indicated he had a gun. He said, “Don’t make me do this.”
Thompson returned to the cash register and opened it. Defendant reached across the counter and took all of the bills out of the drawer. This included a stack of 20’s with a tracer chip inside planted to allow it to be traced. Thompson testified that initially she “wasn’t scared,” “the fear didn’t set in,” “[i]t’s kind of like it shut off and I just became like a robot kind of.” The fear did set in after the robbery. She went back to the register because she could not dissuade defendant and if she left “something worse may have--may occur.”
Elizabeth Bailey was working as night manager that evening. She walked up as defendant, his hand in his pocket pointing like he had a gun, was commanding Thompson, who appeared very upset, to return to the cash register. She thought defendant had a gun and told Thompson to give defendant the money. She then told the other cashier, Margo Polis, to give defendant her money too. Bailey was nervous and upset during the incident. She knew that Thompson’s drawer had a planted tracking device. After defendant took the money from Polis he left.
Polis did not testify. She had died before trial.
Shortly thereafter, Officer James Anderson of the Sacramento City Police Department received a radio message about the robbery indicating that the loot included one or more tracer tags. His patrol car was equipped to track such tags. As he drove toward the Rite Aid he began to receive a signal from the tags. He followed the signal to 29th Avenue, about a mile from the Rite Aid, about 14 minutes after the radio alert. Other police officers converged on the location.
Officer Mark Chapman was one of them. He and his patrol dog, Hawk, came to the scene and, about 9:50 p.m., entered a field behind the perimeter of homes along the street. Within a minute Hawk located defendant who yelled out his surrender. He was detained. A large amount of cash and the tracer tags were found where he had been hiding.
Thompson and Bailey were brought to the scene around 10:30 p.m. Each was admonished that the person they would be shown may or may not be the person who robbed them. Separated, each identified defendant as the robber.
After his arrest defendant’s booking photo was used to prepare a six-person photographic array. On April 16, 2003, Vilma Gomez and Shawna Roberick were separately shown the photo array, after signing a standard photographic lineup admonition form. Each identified defendant’s photo as of the person who, on January 24, 2003, about 4:00 p.m., had robbed them of approximately $400 at the Portrait Solutions studio in the Florin Mall in Sacramento.
On April 30, 2003, a similar array with defendant’s photo was shown to Tariq Khan. Khan was a customer present at an Auto Zone store on Broadway on March 15, 2003, when it was robbed. After a verbal admonition that he was under no obligation to pick anyone and not to guess, Khan identified defendant’s photo as most like the robber. On May 8, 2003, the same array was shown to Adelina Bajramovic, the clerk who was the victim of the Auto Zone robbery. After a similar admonition, she identified defendant’s photo, observing that she remembered him because his face was sunken in.
Defendant was charged with three counts of robbery for the Rite Aid robbery, two such counts for the Portrait Solutions robbery and one such count for the Auto Zone robbery.
Denial of severance
Before trial defendant made a motion to sever the Rite Aid counts from the others. He argued that severance was required because of the disparity in the strength of the evidence as to the charges, to wit, the Rite Aid charges were backed by fresh identification and corroborating physical evidence and the other charges only by evidence of two lineup identifications months after the robberies in issue. The prosecutor responded that the defense characterization of the Portrait Solutions and Auto Zone cases as “extremely weak” was incorrect and that joinder was appropriate. The trial court denied the motion to sever.
The verdicts
Late on the afternoon of the third day of deliberations the jury foreman sent a note to the court asserting: “We the jurors have verdicts for counts [one], [two], and [three]. We are still deadlocked on counts [four], [five], and [six].” The jury was excused and ordered to return.
The next court day, with the agreement of counsel, the jury was brought to the courtroom “to take the verdicts on those counts for which they have arrived at verdicts.” The court said that based on the note it appeared there were verdicts on some counts. Addressing the presiding juror, the court said, “I see you have an envelope, and I assume you brought that to court at the direction of the Court and that is as to the verdicts which have been reached in this case; is that correct?” The foreman replied that was correct.
The court then had the clerk read the verdicts aloud, to wit, guilty of robbery on the three counts pertaining to the Rite Aid robbery. After the verdict was read on each count, the court asked of the jury, “Is this your verdict?” And the jurors replied, “Yes.” The court then asked if counsel wished to have the jury polled as to their verdicts. Counsel declined. The court directed that those verdicts be recorded.
After determining by inquiry that further deliberation on the remaining counts would not be productive, the court declared the jury deadlocked as to those counts and declared a mistrial as to those counts.
DISCUSSION
I. Severance
Defendant contends that the trial court erred prejudicially in denying the motion to sever and that failure to sever resulted in gross unfairness amounting to a denial of due process of law. He argues the court abused its discretion in failing to require severance because evidence of gun use in the Auto Zone case was differentially inflammatory, evidence in the Rite Aid case was differentially strong, and severance would have served the cause of judicial economy. He argues that the failure to sever resulted in a due process violation because it allowed the prosecutor to misuse evidence that was not cross-admissible. Defendant’s arguments are unpersuasive.
A. Error in Denying the Motion to Sever
When the requirements for joinder are met, as here, the defendant has the burden of making a clear showing of potential prejudice to show error. (People v. Sandoval (1992) 4 Cal.4th 155, 172.) Potential prejudice depends on the particular circumstances of each individual case, however, where “certain of the charges are unusually likely to inflame the jury against the defendant” (id. at p. 172) or “a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges” (id. at pp. 172-173), a showing of prejudice can be made out (ibid.). “[T]he propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard.” (People v. Cummings (1993) 4 Cal.4th 1233, 1284.)
Section 954.1 provides: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
We do not consider defendant’s appellate arguments that the Rite Aid robbery was more inflammatory because a gun was used and that judicial economy would likely have been served if the charges were severed. These arguments were not tendered to the trial court and cannot be raised on appeal for the first time to impugn its ruling. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444.)
That leaves the question whether the trial court abused its discretion in failing to find that the Rite Aid incident was a “strong” case and the other two cases were such “weak” cases that joinder might well alter the outcome of some or all of the charges. The showing made on this point in the severance motion proceedings was sparse. It did indicate that the overall evidence in the Rite Aid case was quite strong, defendant having, in effect, been caught red-handed. However, that does not compel the conclusion that evidence in the other cases was so weak as to compel severance. Evidence on counts can be different in kind and strength without compelling severance, if it strongly implies guilt in both cases. (See People v. Bean (1988) 46 Cal.3d 919, 939.)
Based on the showing made to the court on the severance motion, we do not discern an abuse of discretion in the implied finding that the Portrait Solutions case and the Auto Zone case were not sufficiently weak to compel severance. In each there were two witnesses who separately identified defendant as the robber in a properly conducted photographic lineup. The claim that the trial court erred in denying the motion is not meritorious.
B. Joinder Resulting in a Due Process Violation
“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ (People v. Arias [(1996)] 13 Cal.4th 92, 127.)” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) Recent cases have found such unfairness where the prosecutor has urged the jury to draw impermissible inferences based on evidence on another count where that evidence was not cross-admissible. (See, e.g., People v. Grant (2003) 113 Cal.App.4th 579, 589-590; Bean v. Calderon (1998) 163 F.3d 1073, 1083.)
Defendant argues that is what occurred in this case and that we are therefore constrained to reverse on the ground that joinder resulted in a due process violation. He points to remarks of the prosecutor in argument in which she asserted: (1) that defendant “committed a series of robberies”; (2) that in the Rite Aid robbery he was “once again . . . robbing women with his hand under his shirt”; and, lastly, (3) in response to defense counsel’s argument that the robbers were different persons because a gun was displayed in the Auto Zone robbery, that the robberies were similar in that the victims were women, the robber was unmasked, and the robber simply announced his purpose and either threatened to use or displayed a gun.
This case is different from those upon which defendant relies. In this case there is no overt assertion that the jury should infer guilt on one count from evidence on another count. As noted, the only overt assertion that the method of the robber(s) was similar occurred in response to the defense assertion that the method was dissimilar.
More importantly, if we assume that the evidence was not cross-admissible, then, in our view, urging the jury to draw an impermissible inference should be addressed as an issue of prosecutorial misconduct (cf., e.g., People v. Howard (1994) 25 Cal.App.4th 1660, 1664-1665, disapproved on a different ground in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3), rather than as an inevitable “result” of the failure to sever the counts. However, in order to preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (E.g., People v. Earp (1999) 20 Cal.4th 826, 858.) No objection was made below and in our opinion if the remarks were improper, the impropriety could have been cured by an admonition.
Accordingly, the claim is not cognizable.
II. The Field Identifications
Defendant contends the trial court erred in denying his motion in limine to bar evidence that he was identified by two of the Rite Aid victims in the field at the place of his arrest. He argues that the showup was (1) unjustified and (2) unduly suggestive. The arguments are unpersuasive.
A. Justification for Field Identification
Defendant argues that the field identifications should have been suppressed because it was unnecessary to proceed in this fashion. He submits that there was no exigency, the police were not going to release him, there was no reason to believe anyone else was involved in the crime, and he could easily have been jailed and a lineup conducted the next day.
The issue of justification for a field identification arises with respect to whether an identification is impermissible because of denial of the right to counsel. “Through good police work, good fortune, or a combination of the two, a criminal suspect may be apprehended so close in proximity to the time and place of the crime itself, the exigencies of the situation and over-riding [sic] public policy make it neither practical nor necessary to afford counsel for an in-the-field identification. It is not necessary to our decision to define the actual limits of time or distance which circumscribe the procedure. It is sufficient that we be satisfied, as we are, the in-the-field identification in the instant case falls well within those limits.” (People v. Colgain (1969) 276 Cal.App.2d 118, 125-126.) “[W]e apprehend the rule to be that the presence of counsel is not required at an in-the-field identification made in close proximity to the time and place of the crime itself.” (People v. Rodriguez (1970) 10 Cal.App.3d 18, 29.)
The justification question requires a rule-of-thumb approach that can be administered by police officers in the field. Rather than weighing factors, the rule is categorical: Is the field show-up close in proximity to the time and place of the crime? If these criteria are satisfied, it is immaterial that the police have enough evidence to arrest the suspect, or that there is no reason to believe anyone else was involved in the crime, or that he could easily be jailed and a lineup conducted the next day. (See, e.g., People v. Odom (1980) 108 Cal.App.3d 100, 110.)
Every field identification is inherently suggestive. “The potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later. Because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.” (People v. Odom, supra, 108 Cal.App.3d at p. 110.)
The field identification in this case was conducted within 90 minutes of the crime at a nearby location. This is within the California precedents for authorization of use of this kind of identification procedure. (See 2 Witkin, Cal. Evidence (4th ed. 2000) Witnesses, § 404, pp. 702-704 and cases cited therein.)
B. Suggestiveness of the Field Identification
Defendant argues that the field identification in this case was unduly suggestive. However, the considerations he points to are essentially those inherent in use of the field show-up procedure. As related above, the case law permitting this procedure generically resolves the policy balance between suggestiveness and the competing values served. Defendant is free to attempt to undermine the field show-up identification based on the inherent suggestiveness of the procedure. However, he is not permitted to have it suppressed in the absence of some special and gratuitous significant heightening of this suggestiveness in a particular case. There are no such circumstances in this case and the trial court did not err in denying the motion to suppress this identification.
III. Proof of Robbery
Defendant contends that he was improperly convicted of robbery because there is insufficient evidence of that offense or because the court failed to instruct on attempted robbery as a lesser included offense. He argues that there is insufficient evidence of robbery because the victims gave him the money not from fear, but because they wanted him to take the tracer so he would be apprehended. Alternatively, he argues that the jury should have been instructed on the offense of attempted robbery on this ground. The arguments are unpersuasive.
A. Sufficiency of the Evidence
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Defendant argues that there is insufficient evidence the money was taken against the will of the Rite Aid victims. As noted, the money that defendant took was marked with an electronic tracer. He submits that the employees from whom he took the money “desired” him to take it so that he would be apprehended. He submits that in light of this, it was not taken against their will nor was the taking accomplished by force or fear.
“The fear mentioned in Section 211 may be either:
“Robbery violates the social interest in the safety and security of the person as well as the social interest in the protection of property rights.” (Perkins & Boyce, Criminal Law (3d ed. 1982) Robbery, § 2.D., 2d par., p. 350.) The elements of the offense of robbery reflect this compound. Prohibiting the larceny, the felonious taking of property, protects the victim’s property rights. Prohibiting the “accomplishment” of the taking by means of force or fear protects the safety and security of the victim’s person. Caselaw discussion of “by means of force or fear” occurs in the course of plumbing the line between larceny from the person, e.g., pickpocketing or purse snatching, and robbery. (See, e.g., People v. Mungia (1991) 234 Cal.App.3d 1703, 1709 [as the victim was not aware of the defendant’s approach or planned purse snatch until he had actually snatched her purse from behind, nothing in the record afforded an inference that the purse was taken from her through the use of fear].)
The question is causal: Does the evidence here afford an inference that, “but for” fear of defendant’s threat, the employees would not have given up the property? (See, e.g., People v. Cuevas (2001) 89 Cal.App.4th 689, 699 [did fear actually experienced by the victim, cause her to suspend the free exercise of will].) The answer is, yes. The victims may have been secretly pleased that, along with the other loot, defendant took the bills with the locator chip. That does not prevent an inference that they submitted to the taking because of fear of an unlawful injury to the person, i.e., that it was accomplished by means of force or fear. Even when a victim asserts she was not frightened, turning over property in response to such a threat affords the inference of fear. (See People v. Borra (1932) 123 Cal.App. 482, 485 [“[People] do not ordinarily give up their hard-earned cash to a stranger who threatens them with a gun, except for fear of bodily injury in the event of a refusal to do so”].)
B. Instruction Sua Sponte on Attempted Robbery
The trial court is obliged to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense are present. (E.g., People v. Barton (1995) 12 Cal.4th 186, 194-198.) Defendant argues that even if there is sufficient evidence of fear, the evidence also afforded inferences that the Rite Aide victims let him take the money because they wanted him to be caught by means of the tracking chip rather than because they were fearful and, if so, the offense could have been the lesser included offense of attempted robbery.
In this case we need not reach the interesting question whether such circumstances are sufficient to afford a counter-inference, i.e., that the taking was not accomplished or caused by the threat. “[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.” (People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on a different ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
If we assume arguendo defendant is correct that the victim’s knowledge of the tracking chip is evidence which could allow an inference the clerks did not give up the money because of fear, it is unavailing. The factual question posed by an omitted instruction on attempted robbery was necessarily resolved adversely to him under another instruction. As the Attorney General notes, the jury was given an instruction on the lesser included offense of grand theft from the person as to Margo Polis, the Rite Aid victim who died before the matter came to trial.
The defense requested as to every charged count that the jury be instructed on grand theft from the person as a lesser included offense. Counsel suggested generically that “immediate presence” or “force or fear” might be found lacking, negating elements of robbery. The prosecutor replied that in each case the facts showed robbery, by defendant or someone else. The defense then said that as to the Polis count, there was at least an argument she did not give up her money “by force or fear,” because Bailey, her supervisor, had requested she do so. The court denied the grand theft instruction, except as to the Polis count. There, because of the “room for argument” the judge said, “I will play it safe” and gave the grand theft lesser included offense instruction.
As to this instruction, the prosecutor argued that the difference between the offenses was lack of fear. Further, that though Polis had not been available to testify, she gave up the money because she was afraid he might have a gun under his clothing, and the jury should find from “all the circumstances” that each victim gave up the money because of that threat. The defense did not reply to this argument.
The jury convicted defendant of robbery as to Polis. Thus, the factual question posed by the omitted instruction on a lesser included offense of attempted robbery--did the Rite Aid victims give up the money because of fear of defendant’s threat--was resolved adversely to him. On the record before us there is no reason to suppose the jury could have reached a different result as to any of the Rite Aid victims. Accordingly, error, if any, in failing to instruct on attempted robbery was harmless.
IV. Taking the Guilty Verdicts
Defendant contends the trial court erred prejudicially in the manner of taking the jury verdicts. He argues that the court erred in failing to comply with: (1) section 1149, because it did not ask the jurors collectively if they reached agreement and (2) section 1163, because it did not ask each juror individually if he or she assented to the agreement previously reached. The arguments are unpersuasive.
As related, when the jury assembled the court said, based on their note, it appeared there were verdicts on some counts and asked the foreman if the envelope contained such verdicts. The foreman replied that was correct. The court then had the clerk read the verdicts reached. The court then asked the jurors collectively if this is their verdict. They replied collectively that it was. Defendant argues this was error because section 1163 requires that the jurors be asked “‘severally’ if a verdict ‘is’ their verdict, not . . . collectively if a verdict ‘was’ their verdict.”
Section 1149 provides: “When the jury appear they must be asked by the court, or clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.” The procedure called for by section 1149 was followed.
The court asked if they had verdicts, i.e., “whether they have agreed upon their verdict(s).” As provided by section 1149, the foreman answered in the affirmative. When each verdict was read the court asked the jurors if this is their verdict and, “on being required” they answered affirmatively and “declare[d] the same.” Nothing in section 1149 requires the jurors to be asked severally if a verdict is their verdict.
Defendant argues that the court violated section 1163 because it did not severally ask each juror if the verdict is his or her verdict. Section 1163 provides: “When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if anyone answer in the negative, the jury must be sent out for further deliberation.” Section 1163 has no application to this case, as neither party requested that the jury be polled. There was no error in taking the verdicts.
Defendant seeks to impugn the recorded verdicts based upon remarks made by some of the jurors during a subsequent colloquy about the possibility of agreement on the counts where no agreement had been reached. That colloquy has no bearing on the counts as to which agreement had been reached.
V. Error in Sentencing
Defendant contends that the trial court erred in mistaking the scope of its discretion at sentencing. He argues that the trial court evinced prejudicial misunderstanding of its discretion to sentence concurrently. He fails to establish such a misunderstanding.
After stating the consecutive sentences for the three robbery counts, the court remarked: “In that regard I do note that the sentencing scheme under the strike law is for consecutive sentencing in the case of--of such crimes with independent and distinct victims.” Defendant submits this shows a misunderstanding of sentencing discretion.
If the record clearly establishes that the trial court thought consecutive sentences were mandatory, not discretionary, then a remand would be appropriate; however, if defendant merely speculates that the court misunderstood the scope of its discretion there is no error. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 195, fn. 5.)
As the Attorney General notes, the language to which defendant points tracks the probation report passage in which consecutive sentencing is “recommended” on this ground, citing as justification California Rules of Court, rule 4.425. This rule provides criteria “affecting the decision to impose consecutive rather than concurrent sentences.” (Ibid.) In these circumstances the record does not clearly establish that the trial court mistook its sentencing discretion and no showing of such error has been made.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., ROBIE, J.
1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or,
2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.” (§ 212.)