Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, James B. Pierce, Judge. Los Angeles County Super. Ct. No. NA066698
Heather J. Manolakas, 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, Steven E. Mercer and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
Patrick Nathaniel Short was convicted of three counts of robbery, and he admitted that he had suffered one prior serious felony conviction that qualified as a strike and had served two prior prison terms. (Pen. Code, §§ 211, 667, subds. (a), (b)-(i), 667.5, subd. (b).) Short was sentenced to state prison for a term of 21 years. He appeals, challenging the sufficiency of the evidence and contending there were various constitutional, evidentiary and sentencing errors. We modify his sentence by striking a one-year enhancement and, as modified, affirm the judgment.
All section references are to the Penal Code.
FACTS
Sandra Rosenworth, Christopher Arreola, and Shawn Forno were walking on a Long Beach street when a dark-colored Lexus stopped in front of them. Short (the passenger) got out, pulled Rosenworth away from her friends, pointed a gun at her head, and asked for her purse. She gave it to him (it contained her wallet, identification, camera, credit cards and cell phone). Short then searched Arreola’s and Forno’s pockets, took their wallets and Arreola’s cell phone, checked Rosenworth’s pockets, and then got back into the Lexus which drove off.
The victims went to a friend’s house, called the police, and gave similar descriptions of their assailant (and the car) -- Rosenworth said the robber was African-American, about 5’6”, and wearing a dark hooded sweatshirt; Forno said he was African-American, less than six feet tall, wearing a black hooded sweatshirt, and added that he was wearing black pants; Arreola said he was African-American, in his early 20’s, and wearing dark clothes. Later that morning, Rosenworth selected Short (who is 5’ 11”) from a photo array (after looking at the photos for five seconds, she wrote, “I think it is him”), but neither Forno nor Arreola were able to identify the robber.
Meanwhile, Long Beach police responding to a stolen car alert spotted and followed a blue Lexus. When the Lexus stopped in an alley, an African-American man in his early 20’s (wearing a white jersey with “Woodson” and “24” on it) got out and ran down the alley. The officers found a woman (Queena Williams) in the Lexus’s back seat and she directed the officers to 5955 Linden Street, Apartment 1, where she said the fleeing man lived. Rosenworth’s purse, wallet, credit cards, and identification were found in a trash can near the Lexus (in the alley directly behind 5955 Linden Street).
Short lived with his mother, Tina Mitchell, in Apartment 1. One of the officers called Mitchell and asked her to have everyone come out of the apartment. Short and Mitchell complied. The officers then obtained consent to search the apartment, where they found (in an attic crawl space above Short’s bedroom) the white jersey he had been wearing, three cell phones (stashed inside a latex glove), a camera, and a bandana (but no dark hooded sweatshirt). Mitchell told the police she had worked all night, and had gone straight to bed when she got home -- and did not know whether Short was there when she arrived.
Short was arrested and charged with three counts of robbery, with allegations that he personally used a handgun (and with the priors and strike allegations noted at the outset). (§§ 211, 12022.53, subd. (b), 667, subds. (a), (b)-(i), 667.5, subd. (b).) At trial, the People presented evidence of the facts summarized above (with Rosenworth again identifying Short as the robber). The jury rejected Short’s defense (he testified, denied all involvement in the robberies and claimed he was in the alley near the Lexus because he was buying a camera and some cell phones from Queena) and convicted him as charged except with regard to the gun allegations which the jury found were not true (Arreola thought the gun might have been a fake). Short admitted the prior and prior prison term allegations, and was sentenced to state prison for a term of 21 years (five years upper term on count 1, doubled, plus one-year terms on counts 2 and 3, doubled, plus five years for the prior conviction and one year for each of the two prior prison terms).
DISCUSSION
I.
Short contends there is insufficient evidence to support his conviction of the robberies because all three convictions are based on Rosenworth’s “tentative identification,” which to be sufficient to support a conviction must be “reasonable and credible” (People v. Allen (1985) 165 Cal.App.3d 616, 623), which Short says it was not and that, therefore, “[t]here was no credible evidence that placed [him] at the scene of the robberies.” We disagree.
The victims’ testimony established that Short walked toward Rosenworth and pointed a gun to her head, the reasonable inference being that he stood close to and directly in front of her, an inference supported by the fact that it took Rosenworth only five seconds to select Short’s picture from a photo array. She identified him again at trial, and explained that her mistake about his height (she said he was 5’ 6” when in fact he is 5’ 11”) occurred because she had no training in estimating height and did not during the robberies make a “mental note” about his height. Extensive cross-examination about lighting conditions and other details did not render Rosenworth’s identification of Short either physically impossible or inherently improbable, and that identification thus suffices as substantial evidence in support of Short’s conviction. (People v. Cuevas (1995) 12 Cal.4th 252, 261, 271-275; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Allen, supra, 165 Cal.App.3d at p. 623.)
Of course, there is also the fact that (contrary to Short’s assertion) Rosenworth’s identification was corroborated by other evidence -- Short’s presence at the stolen Lexus (which matched the victims’ description of the vehicle used by the robber) and the loot found both in the trash can near the Lexus and in the attic area over Short’s bedroom (within three hours after the robberies). No more was required. (People v. Jennings (1991) 53 Cal.3d 334, 366; People v. Narvaez (2002) 104 Cal.App.4th 1295, 1304.)
II.
Short contends the trial court should have granted his request for a pretrial lineup. We disagree.
The robberies occurred on July 20, 2005. Rosenworth identified Short from the photo array the same day, and Short was arrested later that day. The information was filed on September 16, and Short was arraigned the same day, at which time his lawyer filed a motion to compel a pretrial lineup. The People opposed the motion on the ground it was unnecessary in light of (1) Rosenworth’s identification of Short from the photographic lineup and (2) Short’s connection to the stolen Lexus and the items taken during the robberies. The trial court denied the motion.
The purpose of a pretrial lineup is to test the accuracy of a witness’s identification before an inherently suggestive identification at trial, but the trial court has broad discretion to determine whether a pretrial lineup is necessary, which it generally is where identification is a material issue and there exists “a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.” (Evans v. Superior Court (1974) 11 Cal.3d 617, 621, 625.) Although identification was an issue in this case, there was no reasonable likelihood of a mistaken identification that a lineup would have tended to resolve. Short did not (and does not now) dispute the fairness of the photographic lineup procedure, and the fact that it took only five seconds for Rosenworth to select Short defeats his suggestion that Rosenworth’s written statement (“I think it’s him”) conveys uncertainty. She saw him up close and identified him without hesitation (People v. Williams (1997) 16 Cal.4th 153, 235), and her identification is corroborated by the Lexus and the stolen property. The request for a pretrial lineup was properly denied.
III.
Short contends the trial court erred when it permitted the prosecutor to cross-examine him about his failure to mention certain exculpatory facts during a police interview. We disagree.
A.
Following his arrest, Short waived his Miranda rights and agreed to talk to the police. At trial, as part of the People’s case-in-chief, the prosecutor presented evidence to establish that Short had been interviewed on July 20 (the date of the robberies) and told at the beginning of the interview that he was being charged with the robberies. When Short testified in his own defense, his lawyer asked him on direct about the police interview, and Short conceded that he had told the officer “something different” about how it was he happened to be near the Lexus and how he happened to have the items found in his attic -- he told the police he did not own the white jersey, that he had been home all night, and that he had not been in the alley, but told the jury the jersey was his, that he had in fact been in the alley, and that he was buying the stolen items from Queena.
At side-bar just after he began his cross-examination, the prosecutor told the trial court that there was a “certain point” during Short’s police interview when “he was confronted with the fact that [the police had] recovered these items in the attic, at which point he said, ‘I don’t want to . . . answer any further questions.’” The prosecutor said Short had already waived his Miranda rights and had simply declined to answer further questions, and that he intended to ask Short about his refusal to answer further questions that would have explained why he had the items in the attic.
Over defense counsel’s objection, the trial court allowed the inquiry, explaining that it was “for impeachment purposes, and since he did give a statement originally and then he cut it off, I think it can be used . . . .” In front of the jury, the prosecutor asked Short: “After you lied about the jersey and being outside with Queena and so forth, [the] detective . . . told you that . . . they had found the jersey up in the attic and the stolen camera, and you didn’t offer any kind of explanation or answer at that point, did you?” Short answered, “No. Because I had a different charge then.”
B.
Under Miranda v. Arizona (1966) 384 U.S. 436, a defendant has the right to remain silent. Under Doyle v. Ohio (1976) 426 U.S. 610, 617-618, a defendant who exercises his Miranda rights may not be penalized because it would be “fundamentally unfair and a deprivation of due process to allow [an] arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” But Doyle “was not intended as a shield which would enable defendants to make exculpatory post-arrest statements and then insulate themselves from cross-examination about those statements by an expedient assertion of the right to remain silent.” (People v. Thompson (1986) 183 Cal.App.3d 437, 442.) Accordingly, Doyle does not “preclude the prosecutor from commenting on highly relevant evidence bearing on [the defendant’s] credibility, including [his] refusal to provide critical details when [he] had voluntarily waived his right to remain silent.” (People v. Hurd (1998) 62 Cal.App.4th 1084, 1094.)
There was no Doyle error here. Short waived his Miranda rights and -- after being told he was charged with the robberies -- voluntarily answered the detective’s questions, denying all involvement in the robberies and only refusing to answer questions when confronted with the physical evidence found in the apartment he shared with his mother. Short did not have the “right to remain silent selectively” (People v. Hurd, supra, 62 Cal.App.4th at p. 1093) or to insulate himself from cross-examination about his exculpatory post-arrest statements (People v. Thompson, supra, 183 Cal.App.3d at p. 442). There was no error. (People v. Farris (1977) 66 Cal.App.3d 376, 390.)
Having found no error of any kind, we necessarily reject Short’s claim of cumulative error. (People v. Bradford (1997) 14 Cal.4th 1005, 1064.)
IV.
Short contends, the Attorney General concedes, and we agree that the one-year enhancement imposed pursuant to section 667.5, subdivision (b), for Short’s 1995 conviction of assault with a deadly weapon must be vacated because the trial court also imposed a five-year sentence for the same conviction pursuant to section 667, subdivision (a)(1). (§ 654; People v. Jones (1993) 5 Cal.4th 1142, 1150-1152; People v. Smith (2001) 24 Cal.4th 849, 854.) Short’s sentence must thus be reduced from 21 years to 20 years.
V.
We summarily reject Short’s claim that the trial court impermissibly relied on his “lack of remorse” as a basis for the upper term sentence imposed on count 1. Although the trial court commented upon Short’s lack of remorse, it did not suggest it had anything to do with his upper term sentence; to the contrary, the record shows the court found there were no mitigating circumstances and that the upper term sentence was selected based upon the threat of force, Short’s prior convictions (the 1995 assault with a deadly weapon and a 2000 drug conviction), his prior prison term, and his unsatisfactory performance on parole. (Cal. Rules of Court, rule 4.421(a)(1), (b)(2), (b)(3), (b)(5).)
For the same reason, we summarily reject Short’s contention that the trial court punished him because he had refused to accept two plea offers (one for 15 years, the other for 12) and instead insisted on his right to a jury trial. Because the sentence imposed was requested by the People and recommended by the probation department, Short has failed to show (as is his burden) that the sentence was imposed as punishment for insisting on a trial. (People v. Szeto (1981) 29 Cal.3d 20, 35; In re Lewallen (1979) 23 Cal.3d 274, 279, 281; and see People v. Collins (2001) 26 Cal.4th 297, 302.)
VI.
In a supplemental brief, Short contends his upper term sentence cannot survive Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856. We disagree.
For the reasons stated in People v. Vera (1997) 15 Cal.4th 269, 276-278 and People v. Saunders (1993) 5 Cal.4th 580, 589, footnote 5, we reject the Attorney General’s contention that the Cunningham issue was waived by reason of Short’s failure to raise it below.
Of the four reasons stated by the trial court, three pertained to Short’s recidivist conduct, including his unsatisfactory performance on parole. Because a single aggravating factor supports the upper term sentence (People v. Osband (1996) 13 Cal.4th 622, 728-729), and because recidivism is exempted from the rules announced in Cunningham (Cunningham v. California, supra, 127 S.Ct. at pp. 860, 864-865; Almendarez-Torres v. United States (1998) 523 U.S. 224, 246), there is no Cunningham error or, if there is, it is harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24).
DISPOSITION
The judgment is modified by striking the one-year enhancement imposed pursuant to section 667.5, subdivision (b), for Short’s 1995 conviction of assault with a deadly weapon, thereby reducing Short’s aggregate sentence to 20 years, and, as modified, affirmed and remanded to the trial court with directions to issue a corrected abstract of judgment and to forward it to the Department of Corrections.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.