Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. NA071496 Charles D. Sheldon, Judge.
Karyn H. Bucur, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
This appeal arises out of two robbery incidents involving three victims; Jillian Thayer and Natasha Ortega on May 18, 2006, in a church parking lot in San Pedro and Francisca Zamudio on August 7, 2006, in a Harbor City fabric store. The jury found defendant guilty of robbing Thayer, Ortega, and Zamudio in violation of Penal Code section 211, with a special finding that defendant knew or should have known Zamudio was over 65 years old (§ 667.9). The jury found not true the allegation defendant inflicted great bodily injury upon Ortega (§ 12022.7, subd. (a)). Defendant received a seven-year prison term, consisting of the upper term of five years for the Zamudio robbery (based on the jury finding that the victim was especially vulnerable because of her age), plus consecutive one-year terms for the other two robberies (one-third of the middle term). The one-year enhancement under section 667.9 was stricken.
All further statutory references are to the Penal Code unless stated otherwise.
In his timely appeal, defendant contends the admission of evidence as to defendant’s poverty and unemployment violated this state’s evidentiary law as well as his right to due process under the federal constitution. We hold that defendant forfeited these related claims and, alternatively, that any error was nonprejudicial.
STATEMENT OF FACTS
Louie Padilla lived in and managed a residence on West Sepulveda Street in San Pedro. Defendant was a tenant at the residence from July 13, 2005, to May 12, 2006. During that time, defendant bought a used white Chevrolet Astro van. Holy Trinity Church is located approximately two and a half blocks away, in the same residential neighborhood. The church has a regularly scheduled meeting for women on Thursdays at 7:30 p.m.
On Thursday, May 18, 2006, at approximately 8:55 p.m., Natasha Ortega was in the parking lot of Holy Trinity Church with her friend Jillian Thayer, after attending a “ladies-only” meeting at the church. The parking lot was well lit. Defendant walked up to them and demanded, “Give me your purses, or I’ll kill you both.” When they hesitated, defendant grabbed their purses. The women struggled with defendant, who took their purses and began to leave, but returned to demand their car keys. Ortega threw hers away from defendant, and the two women tried to take the purses back from him. In the ensuing struggle, defendant wrestled Thayer to the ground. When Ortega approached, defendant pushed her, causing Ortega to fall. Thayer held on to Ortega’s purse, but defendant ran away with Thayer’s. Defendant fled through an alley at the back of the church parking lot—the same place from which he had approached them. An ambulance took Ortega to the hospital, where she was treated for injuries to her face, wrist, and hand. She suffered cuts, bruising, two black eyes, and a “knot” on her forehead. She was told her nose had been broken.
Approximately two weeks after the robbery incident at the church, Padilla spoke to Thayer about the incident. Afterwards, when Padilla saw defendant nearby the church, Padilla telephoned Thayer. She drove to the area and meet with Padilla so she could observe defendant in a parking lot. Thayer observed defendant inside a van. She told the police she was “unsure” whether the person she saw was her assailant. Later, on June 30, 2006, when she viewed a police “six-pack” photographic lineup, she chose defendant’s photograph and another person’s as being “very close” in appearance to the person who committed the robbery. Thayer’s identification was influenced to some degree by her viewing of defendant in the parking lot after the robbery.
Ortega separately identified defendant’s photograph from the same six-pack. She had “no doubt” about her identification. Initially, however, she gave a written statement that the photograph “resembled” defendant. On August 9, 2006, she was contacted by the police. Detective Stephanie Barr told her the District Attorney’s Office “had problems with that word, ‘resembles.’” More specifically, the prosecutor’s office had rejected the case against defendant for lack of sufficient evidence and would not file charges against defendant unless the witness could make a more positive identification. The following day, she went to the police station where Detective Barr asked whether she “was sure” of her identification—and, if so, she should “just point blank say it was him.” Ortega then wrote that she “was positive” that the person in the photograph was the one who robbed her, explaining that she never had a doubt about her identification, but thought it proper to use the word “resemble” because she was referring to a photograph, not the person himself. Ortega had not intended to convey the sense of uncertainty as to her identification She was also “positive” as to her in-court identification.
Detective Barr explained that when she informed Ortega that the District Attorney’s Office had rejected filing against defendant because her identification was considered tentative, Ortega became angry and insisted she was sure of her identification.
At trial, both Thayer and Ortega noted the prominent eyebrows of their assailant as matching those in defendant’s photograph.
On August 7, 2006, Marianna Marchione was working at Joann’s fabric store in Harbor City. At closing time, approximately 9:00 p.m., a female customer, Francisca Zamudio, was leaving the store. A male, whom Marchione identified as defendant, grabbed Francisca’s purse and knocked her down. The store’s manager, Maria Calise, saw the robber take Francisca’s purse and run down the street, chased by store employee Rafael Macias and Francisca’s cousin, Joaquin. Calise called the 9-1-1 operator and reported the crime. She, however, was not able to identify the robber.
Because Francisca Zamudio shares the same surname as another witness, her cousin Joaquin Sosa Zamudio, we refer to them by their first names.
Macias had been doing work for a customer, when Calise called to him that there was a robbery. Macias saw Francisca on the ground and Joaquin leaving the store in pursuit of the robber. Macias saw someone running around the corner and gave chase. He never saw the robber’s face and, therefore, could not identify him. Defendant was struggling with something in his hands while trying to unlock a van parked nearby. Defendant saw Macias approaching and swore at him. Defendant finally opened the van door, threw the item inside, and drove away “really fast.” Macias took a pen from his apron and wrote down the van’s license plate number on his hand. He wrote down the number 4BMS767. The van’s number, however, was 4BMS714. The van was at least 30 feet away at the time, but the area was illuminated. Macias testified that a photograph of defendant’s Astro van looked similar to the getaway vehicle. The license plate number 4BMS767 belonged to a black Chevrolet sports utility vehicle.
Macias returned to the fabric store. Calise was speaking to the 9-1-1 operator, so Macias gave the license plate number he had written to the operator. From the six-pack photographic lineup, Macias identified defendant as having been in the store five or six times within the month. On one occasion, Macias had to ask defendant to leave because of his inappropriate behavior.
Joaquin testified that he and his wife were at the fabric store with Francisca, who was 71 or 72 years old. He saw the robber grab Francisca’s purse. She had resisted, but the robber shook her and pulled the purse away, breaking the strap. Joaquin tried to assist her, but the robber finally got away with the purse. Joaquin ran after the robber, but was unable to catch him. Francisca was unable to testify at trial because her immigration papers were lost in the robbery. Joaquin did not get a good view of the robber’s face, but believed that the photograph of defendant resembled the robber. He chose the photograph based on the robber’s complexion. Joaquin did get a good view of the robber from behind, but he could not make an in-court identification of defendant because defendant appeared to have a thinner build than the robber.
A video taken of the robbery by the store’s surveillance camera was played to the jury. However, the video did not contain a view of the robber adequate to identify defendant.
On September 1, 2006, at 8:15 a.m., Officer Charles Blomeley was on patrol in the area of Watson Avenue and Cruces Street in Wilmington. He saw defendant driving a 1989 white Astro van, license number 4BMS714, and arrested him. While booking defendant, the officer asked defendant about his employment status. Defendant said he was “unemployed and currently living out of the van.” Defendant was five feet nine inches tall and weighed 170 pounds.
Detective Daniel Burzumato interviewed defendant, who had waived his constitutional rights to counsel and to remain silent under Miranda v. Arizona (1966) 384 U.S. 436. Defendant said he frequented the area around the fabric store, particularly the alley behind the store, where he collected cans. Defendant was in the alley at the time of the robbery; someone chased him away “because he was collecting cans in the alley.” Defendant also admitted having gone to Holy Trinity Church on Thursday nights for meetings, although he also said he knew those meetings were for women.
Defense
Jennifer Wing-Yen Lam, M.D., examined Ortega on May 26, 2006, concerning her injuries in the robbery incident, as a follow-up to her emergency room treatment on May 19. Although the emergency room physician had reviewed Ortega’s X-ray and said her nose was broken, the radiologist’s report (which was not prepared until May 20) indicated there had been no fracture or bone abnormality. Dr. Lam’s examination revealed bruising around the nose and eyes, a bruise on her breast, and a cut on her hand. There was no reason to think Ortega would suffer any lasting injury as a result of the incident.
DISCUSSION
Defendant contends admission of evidence that he was unemployed and living out of his van at the time of the robberies violated the well-established rule under this state’s caselaw that “a defendant’s poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice.” (People v. Koontz (2002) 27 Cal.4th 1041, 1076.) He also asserts this same evidentiary error amounted to a federal due process violation. The Attorney General counters that defendant forfeited his claims by not adequately raising them below and, in any event, the trial court’s evidentiary ruling neither amounted to an abuse of discretion nor resulted in prejudice.
The challenged evidence was introduced during the direct testimony of Officer Blomeley concerning defendant’s arrest in Wilmington on September 1, 2006. The officer made the arrest after seeing defendant driving his white Astro van. While booking defendant, the officer asked defendant about his employment status. Over a defense relevancy objection, the officer testified as to defendant’s admission that he was “unemployed and currently living out of the van.” Related evidence was introduced during the examination of Detective Burzumato, who related that defendant admitted frequenting the area around the fabric store. According to the detective, defendant said he was in the alley at the time of the robbery and someone chased him away “because he was collecting cans in the alley.”
We turn first to the question of whether defendant adequately preserved his claims on appeal. “To preserve an evidentiary issue for appeal, the complaining party generally is required to make a timely and meaningful objection in the trial court. (Evid.Code, § 353, subd. (a).) The purpose of this rule ‘is to encourage a defendant to bring any errors to the trial court’s attention so the court may correct or avoid the errors and provide the defendant with a fair trial.’ (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.) Thus, an objection will be deemed sufficient so long as it ‘fairly apprises the trial court of the issue it is being called upon to decide. [Citations.]’ (People v. Scott (1978) 21 Cal.3d 284, 290.) The duty to object will be excused when an ‘objection or request for admonition would have been futile or would not have cured the [alleged] harm . . . .’ (People v. McDermott (2002) 28 Cal.4th 946, 1001.)” (People v. Carrillo (2004) 119 Cal.App.4th 94, 101 (Carrillo).) The same rule applies to constitutional claims; however, a “defendant may make a very narrow due process argument on appeal” notwithstanding failure to object on that ground when the appellate argument is that the “asserted error in admitting the evidence over [defendant’s] Evidence Code section 352 objection had the additional legal consequence of violating due process.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
Here, the defense objected solely on relevance grounds without stating or implying that the admission of his statements concerning his financial condition would be more prejudicial than probative under Evidence Code section 352. Although there is certainly a relevance component to the general rule regarding poverty evidence, the fairness concerns that form the rule’s rationale and purpose go beyond relevance to implicate the analysis under Evidence Code section 352. “Evidence of a defendant’s poverty or indebtedness generally is inadmissible to establish motive to commit robbery or theft, because reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice.” (People v. Wilson (1992) 3 Cal.4th 926, 939; People v. Edelbacher (1989) 47 Cal.3d 983, 1024 [“Evidence of a defendant’s poverty or indebtedness, without more, is inadmissible to establish motive for robbery or theft because it is unfair to make poverty alone a ground of suspicion and the probative value of the evidence is deemed to be outweighed by the risk of prejudice”].) “At bottom, the issue is one of fairness,” arising out of the fundamental belief “‘that equality of treatment must be afforded to all without regard to differences in social status or economic condition. . . .’” (Carrillo, supra, 119 Cal.App.4th at p. 102, quoting United States ex rel. Mertz v. New Jersey (3rd Cir. 1970) 423 F.2d 537, 541.) The Carrillo court also referenced a leading commentator’s analysis that the “practical result of poverty evidence ‘would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness (such evidence) has seldom been countenanced.” (Ibid., citing 2 Wigmore, Evidence, § 392, p. 431 (Chadbourn rev. ed. 1979).)
Indeed, such evidence will almost always be relevant since it will usually have some “tendency in reason to prove or disprove a[] disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) As the Carillo court explained, “While ‘lack of money is logically connected with a crime involving financial gain . . . [t]he trouble is that it would prove too much against too many.’ [Citation.]” (Carrillo, supra, 119 Cal.App.4th at p. 102.) Moreover, the general rule against admission of poverty-related evidence has always been subject to numerous exceptions. (E.g., People v. Kelly (1901) 132 Cal. 430, 431-432 [“Generally, evidence of the wealth or poverty of a defendant is not admissible; but the sudden possession of money, immediately after the commission of a larceny, by one who before that had been impecunious, is clearly admissible as a circumstance in the case”]; People v. Wilson, supra, 3 Cal.4th at p. 939 [“Under certain circumstances, however, evidence of poverty or indebtedness may be relevant and admissible for limited purposes, such as to refute a defendant’s claim that he did not commit the robbery because he did not need the money”]; see also People v. Morales (1979) 88 Cal.App.3d 259, 264 [“Proof of defendant’s need for money has been held relevant and admissible in prosecuting for theft, robbery [citations], and sale of narcotics [citation]. It is for the jury to determine whether defendant’s financial situation tends to establish a motive for commission of a crime and thus connect defendant with such a commission”]; People v. Martin (1971) 17 Cal.App.3d 661, 668 [“Here, appellant’s employment record was pertinent as it related to his financial need to engage in the illegal sale”].)
Accordingly, defendant’s unadorned relevancy objection failed to apprise the trial court that he was invoking the protection of the line of cases prohibiting conviction of robbery based upon evidence of poverty, much less any federal due process concerns. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1130 [argument evidence should have been excluded under Evid. Code, § 352 forfeited; “counsel objected only on relevancy grounds and made no objection to the perceived prejudicial effect of the evidence”].) As the Attorney General points out, the evidence adduced through defendant’s admission to Officer Blomeley—that defendant was “unemployed and currently living out of the van”—contained facts that were relevant and admissible, independent of the rule that evidence of poverty generally may not be admitted to prove a motive to commit a robbery or theft. Certainly, the fact that defendant was living in the same van that he used as the getaway car for Francisca’s robbery was highly relevant to proving defendant’s identity. Any possible prejudice that might have collaterally arisen out of the inference of poverty could have been avoided by a limiting instruction, had one been requested.
In addition to forfeiture, we hold that any error in admitting the evidence would have been harmless, whether assessed in terms of People v. Watson (1956) 46 Cal.2d 818, 836, “which asks whether it is reasonably probable appellant would have achieved a more favorable result if the court had not given the instruction” (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7), or the harmless-beyond-a-reasonable-doubt standard for federal constitutional error under Chapman v. California (1967) 386 U.S. 18, 24. It should be noted, however, that defendant’s reliance on United States v. Lovasco (1977) 431 U.S. 783, 790 fails to support his argument that the admission of poverty-related evidence constituted a federal due process violation. Moreover, in the decision on which defendant places his greatest reliance—Carrillo, supra, 119 Cal.App.4th 94—the trial court applied Watson, rather than Chapman, implying the error was not of constitutional magnitude. (Carrillo, supra, 119 Cal.App.4th at pp. 103-104.)
Central to defendant’s prejudice argument is a short section of the prosecution’s closing, in which the prosecutor made the argument that “defendant had an obvious financial motive” to commit the robberies: “He was apparently in that unfavorable condition of having to live out of his van. And so he finds himself out on the street, and so there is an obvious economic motive for him to participate in these crimes where he is going after a woman’s purse. Obviously they carry often their wallet and money and so forth.” There was no objection.
Unlike the situation in Carrillo, the jury had no reason to resort to the improper inference that defendant’s difficult financial straits motivated the robberies. “The case against Carrillo was entirely circumstantial.” (Carrillo, supra, 119 Cal.App.4th at p. 104.) Here, however, not only were there strong eyewitness identifications as to all three robberies, but they were corroborated by defendant’s admissions as to his familiarity with, and repeated presence in, the robbery locations. He was also seen fleeing the second robbery scene in his van—and was later arrested in that same vehicle, which he had purchased just before the first robbery incident. Moreover, as discussed above and unlike the situation in Carrillo, the evidence of defendant’s unemployment and difficult living conditions was independently admissible for legitimate purposes apart from showing a motive for robbery. Finally, there was relatively little evidence of defendant’s poverty, and the prosecutor did not belabor the argument of poverty-based motivation. In contrast, in Carrillo, the prosecution engaged in the persistent examination of defendant and other defense witnesses as to defendant’s financial condition, adducing “considerable” and “extensive” evidence on that point. (Id. at pp. 101-104.)
Defendant also points to an instance in the rebuttal argument when the prosecutor offered an explanation for Joaquin’s testimony that at trial, defendant appeared more heavily built than the robber. Referring to Detective Barr’s testimony, the prosecutor suggested defendant “gained weight” since his arrest when he was “living out of his van, and now we have had several months where he’s had a better situation.” Defendant’s objection “for the record,” was overruled. This was not an instance of arguing that defendant’s poverty provided a motive for robbery.
In sum, defendant’s was not a case in which there was a substantial likelihood the jury would disregard the properly admitted direct and circumstantial evidence, and resort to the improper and unnecessary inference that defendant was guilty because his poverty motivated him to commit the robberies.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.