Opinion
C082889
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DREW ALLEE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STKCRFE20150007695, SF132463A)
A jury found defendant Steven Drew Allee guilty of first-degree murder, attempted robbery, and two robberies. The jury found true a felony murder special circumstance allegation, and allegations defendant personally and intentionally discharged a firearm causing death. The trial court sentenced defendant to a determinate term of six years, followed by a consecutive indeterminate term of 25 years to life, plus life without the possibility of parole.
Defendant appeals, arguing: (1) the trial court erred in failing to instruct the jury on lesser included offenses of second degree murder and manslaughter, (2) the trial court erred in admitting evidence of an uncharged robbery, and (3) the prosecutor committed prejudicial misconduct. Defendant also requests remand for resentencing under Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2), and challenges the imposition of various fines and fees.
We agree that remand is appropriate to allow the trial court an opportunity to exercise its discretion pursuant to Senate Bill No. 620 to strike the firearm enhancements under Penal Code section 12022.53. On remand, the trial court should also specify the statutory authority for the $1,000 surcharge imposed at sentencing. In all other respects, the judgment is affirmed.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. The Crimes
Defendant went on a methamphetamine-fueled crime spree in May 2015. He robbed a Subway sandwich shop in Lodi on May 1, 2015. He robbed the jewelry department of a Kmart store in Lodi on May 12, 2015. He attempted to rob a different Subway sandwich shop, in Stockton, on May 26, 2015. But things did not go as planned.
Defendant entered the sandwich shop at 9:02 p.m. He wore a hoodie sweatshirt with the hood down and what appeared to be a black bandana around his neck. He was behaving strangely, pacing the store as though he could not stand still. He eventually ordered a sandwich from Jerry, a Subway employee who was manning the register that night. He then left the sandwich shop.
Defendant returned a short time later. He approached Jerry with a gun and yelled, "Open the fucking register." Jerry refused. Jerry tried—and failed—to slap the gun from defendant's hand. Jerry then jumped over the counter and chased defendant to the door. A scuffle ensued. Jerry tried to grab defendant, but defendant managed to reach the door. He then turned and shot Jerry. Jerry died from blood loss en route to the hospital.
Defendant fled the scene on foot. He called an acquaintance, D.L., and asked for a ride. D.L. picked defendant up and drove him to a location in Lodi. She noticed that defendant seemed nervous. She asked defendant what was going on, and he revealed that he had shot someone at a Subway in Stockton. Defendant told D.L. that he had gone to the Subway intending to rob it. D.L. dropped defendant off and called 911.
In the meantime, defendant sent a series of text messages to an ex-girlfriend, L.S. In one such message, defendant wrote, "I killed someone. Call me please." In another, defendant wrote, "I really fucked up bad last night real bad." "You're gonna wanna turn me in. But I didn't mean to do it." In yet another, defendant wrote, "My life is over[.] I'm a fucking murderer." Defendant spoke with L.S. by telephone on the morning of May 27, 2015. Defendant told L.S. that he shot someone the night before.
Police took defendant into custody later that day. In an interview, defendant told detectives that he expected the sandwich shop employees to comply with his commands and was surprised when Jerry jumped over the counter and became "aggressive." Defendant indicated that he was afraid of Jerry, as Jerry was bigger than he. Defendant also stated that Jerry "should not have fuckin' done that." Defendant added that he was distraught over his recent break up with L.S., "fucked up bad" and was "just cryin' for fuckin' help." B. The Charges and Jury Trial
On September 23, 2015, defendant was charged by grand jury indictment with one count of willful, deliberate, and premeditated murder for the shooting death of Jerry (§ 187, subd. (a)—count 1), one count of attempted second degree robbery for the Subway sandwich shop in Stockton (§§ 664, 211—count 2), one count of second degree robbery for the Subway sandwich shop in Lodi (§ 211—count 3), and one count of second degree robbery for the Kmart jewelry department in Lodi (§ 211—count 4). The indictment alleged as a special circumstance as to count 1 that the murder was committed in the course of a robbery and/or burglary (§ 190.2, subd. (a)(17)(A) and (G)). The indictment alleged as to counts 1 and 2 that defendant personally used and discharged a firearm, used a firearm in the commission of a felony, and discharged a firearm causing death. (§§ 12022.5, subd. (a), 12022.53, subds. (a) - (d).) The indictment alleged as to count 3 that defendant personally used a firearm in the commission of the offense. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The indictment alleged as to count 4 that defendant personally used a deadly or dangerous weapon (a hammer) in the commission of the offense. (§ 12022.5, subd. (b).) Defendant entered a plea of not guilty and denied the special circumstance and enhancement allegations.
The trial court dismissed the deadly weapon enhancement attached to count 4 at the end of the evidentiary phase of the trial.
The matter was tried to a jury in June 2016. The prosecution's witnesses testified substantially as described ante. The jury was also shown video footage of the shooting, which was captured by the Subway's surveillance cameras.
Defendant testified in his own defense. Defendant testified that he started using methamphetamine in 2004, and continued using the drug off and on through May 2014, when he moved in with L.S. Defendant started using again in July 2014. L.S. left defendant in April 2015, and defendant "went off the deep end," using more methamphetamine than ever before. Defendant recalled that he used methamphetamine before robbing both the Subway in Lodi and the Kmart jewelry department.
Defendant testified that he sold some of the jewelry he stole from Kmart to a man known to him only as John. He recalled that he smoked methamphetamine with John on the afternoon of May 26, 2015. According to defendant, John prevailed upon him to commit more robberies and drove him around to several stores and restaurants, searching for a suitable target. John also provided defendant with a gun. Defendant rejected several possible targets, offering various excuses. According to defendant, John grew increasingly frustrated with him, screaming that defendant was "wasting [his] time" and "owed [him]."
Defendant explained he felt "intimidated" because John had a gun and knew where he and L.S. lived. He recalled that he was "paranoid" and "delusional," due to methamphetamine use and sleeplessness. In defendant's version of events, he went into the Subway, went through the motions of casing the place, and then returned to the car. According to defendant, John, now furious, threatened to shoot defendant, adding that "No one's going to fucking miss [you]." Defendant then went back to the Subway and proceeded with the robbery, because, he said, he feared that John would kill him if he did not. Defendant did not say anything to police about John.
Defendant testified that he approached Jerry, raised his sweater to display the gun tucked into the waistband of his pants, and said, " 'Check it out. Open the drawer.' " Upon seeing the gun, Jerry said, " 'Are you going to shoot me, you going to shoot me mother[]fucker, come on shoot me.' " Defendant testified that he "freaked out" and withdrew the gun from the waistband of his pants. Jerry then leapt over the counter and made contact with defendant, causing him to stumble. It was then, defendant testified, that the gun went off. Defendant insisted that the shooting was accidental.
On cross-examination, defendant admitted that he intended to rob the Subway in Stockton. He also admitted he intended to rob the Subway in Lodi and the Kmart jewelry counter, and no one forced him to commit either of those crimes. He also admitted that he intentionally robbed a Starbucks in Jackson around the same time, an uncharged offense discussed in greater detail post. However, he insisted that he used an airsoft gun to rob the Subway in Lodi and the Starbucks in Jackson.
"An 'airsoft' gun is a toy weapon that uses air to propel plastic pellets at a nonlethal velocity." (Equinox Holdings, Inc. v. National Labor Relations Board (D.C. Cir. 2018) 883 F.3d 935, 937, fn. 1.)
Dr. Gantt Galloway, a research scientist and clinical pharmacist, testified as a defense expert on the effects of methamphetamine on the brain. Dr. Galloway explained that methamphetamine use promotes wakefulness, and can, when combined with sleeplessness, make the user prone to paranoia and delusional thinking. Based on a hypothetical involving the same facts as those presented by defendant's testimony, Dr. Galloway opined that a person in the midst of a monthlong methamphetamine binge, who was operating on very little sleep, given a gun, and ordered to commit a robbery on pain of being shot, would be more likely to perceive a genuine threat, and less likely to engage in rational decision making.
In rebuttal, the prosecutor called P.H., a shift manager from a Starbucks in Amador County, who testified that a man, later identified as defendant, entered the store on the evening of May 8, 2015, approached the counter, and lifted his shirt to reveal a gun in the waistband of his pants. Defendant told P.H. that the gun was loaded, and he had two minutes to give him whatever was in the register. P.H. unlocked the register, put the cash drawer on the counter, and waited for defendant to leave before locking the door and asking another employee to call police. The entire transaction consumed approximately one minute. C. Verdict and Sentence
Following closing arguments and jury instructions, the jury found defendant guilty on all counts and special circumstances and found true all of the remaining allegations except the firearm allegations related to count 3, which the jury found not true. Defendant was sentenced to a determinate term of six years, followed by a consecutive indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), plus life without the possibility of parole. The trial court also imposed various fines and fees. This appeal timely followed.
II. DISCUSSION
A. Instructional Error
Defendant argues the trial court erred in failing to instruct the jury on second degree murder and manslaughter. He argues he was entitled to such instructions under the "accusatory pleading test," adding that his own testimony was sufficient to support instructions on second degree murder based on implied malice or express malice without premeditation, voluntary manslaughter based on imperfect self-defense or provocation, and involuntary manslaughter based on accidental discharge while brandishing a weapon. Defendant is technically correct, but the error was harmless.
As noted, defendant was charged by grand jury indictment with willful, deliberate, and premediated murder under section 187, subdivision (a). During the course of the trial, however, the prosecutor announced she would be proceeding solely on a theory of felony murder. The jury was instructed on first degree felony murder, robbery and burglary and attempted robbery and burglary as predicate crimes for felony murder, and involuntary manslaughter. The jury was also instructed on involuntary manslaughter based on duress and voluntary intoxication, special circumstance murder in the course of an attempted robbery or burglary, and personal use of a firearm causing death. No instructions on malice murder or its lesser included offenses were given. This was error.
"Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense." (People v. Gonzalez (2018) 5 Cal.5th 186, 196 (Gonzalez); accord People v. Shockley (2013) 58 Cal.4th 400, 403.) The rule prevents " 'either party, whether by design or inadvertence, from forcing an all-or-nothing-choice between conviction of the stated offense on the one hand, or complete acquittal on the other.' " (People v. Smith (2013) 57 Cal.4th 232, 239-240.)
Our Supreme Court has "established two tests for whether a crime is a lesser included offense of a greater offense: the elements test and the accusatory pleading test." (Gonzalez, supra, 5 Cal.5th at p. 197.) Satisfaction of either test triggers the trial court's duty to instruct. (Ibid.) "Under the accusatory pleading test, a crime is another's 'lesser included' offense if all of the elements of the lesser offense are also found in the facts alleged to support the greater offense in the accusatory pleading." (Ibid.) Where, as here, an accusatory pleading charges the defendant with malice murder, the prosecutor's election to proceed on a theory of felony murder alone does not relieve the court of its duty to instruct the jury on the charged malice murder and lesser included offenses of that charge when those offenses are supported by substantial evidence. (Ibid.)
Defendant argues there was substantial evidence supporting instructions on the lesser included offenses of second-degree murder, voluntary manslaughter based on imperfect self-defense or provocation, and involuntary manslaughter based on brandishing a weapon. He points to evidence that Jerry dared him to shoot, then jumped over the counter and chased him to the front door. He also points to evidence, in the form of his own testimony, that the shooting was accidental. The People concede that substantial evidence supported the instructions. We accept the People's concession and turn to the question of prejudice.
The failure to instruct on lesser included offenses constitutes reversible error only if the defendant establishes a reasonable probability he would have obtained a more favorable outcome had the error not occurred. (Gonzalez, supra, 5 Cal.5th at pp. 197-199; see People v. Watson (1956) 46 Cal.2d 818, 836.) In applying this harmless error analysis, we must be mindful that the failure to provide the jury with the option of convicting on a lesser included offense creates a risk that the jury, faced with an all-or- nothing choice between felony murder and acquittal, will convict the defendant of murder, even though the prosecution may have failed to prove this crime. (Gonzalez, supra, at pp. 191, 200.) But this prejudice may be eliminated if the jury necessarily decided the factual questions posed by the omitted instructions adversely to defendant under properly given instructions, including findings made on special circumstance allegations. (Id. at pp. 191-192, 200.)
Our Supreme Court confronted such a situation in Gonzalez, a case decided after defendant filed his opening brief on appeal. There, the defendants were charged by information with murder with malice aforethought. (Gonzalez, supra, 5 Cal.5th at p. 191.) The trial court instructed the jury on first degree felony murder based on robbery, with no instructions on any other theory of murder, such as murder with malice aforethought, lesser included offenses to murder with malice aforethought, or defenses to murder with malice aforethought. (Id. at p. 194.) The jury found the defendants guilty of first-degree murder based on the felony-murder instruction and found true a special circumstance allegation that the murder was committed during a robbery. (Ibid.) On appeal, the defendants argued the trial court failed to instruct the jury on malice murder and its lesser included offenses, leaving the jury with an all-or-nothing choice between first degree murder or acquittal, despite evidence supporting instructions on second degree malice murder, voluntary manslaughter, and involuntary manslaughter, as well as the defenses of accident and self-defense. (Id. at p. 195.) The court of appeal found the failure to give such instructions harmless, and our high court affirmed.
The Gonzalez court explained: "[A] true special circumstance finding requires a jury to find that the killing occurred during the commission of a felony. Accordingly, such a finding necessarily demonstrates the jury's determination that the defendant committed felony murder rather than a lesser form of homicide. [Citations.] Such a finding therefore renders harmless the failure to instruct on lesser included offenses of murder with malice aforethought and the associated prejudice created by an all-or-nothing choice." (Id. at p. 200, fn. omitted.)
Likewise, in the present case, the jury made not one, but two special circumstance findings, both of which confirm the felony-murder verdict and ensure that any error was harmless. In finding that he killed Jerry during the commission of an attempted robbery and burglary, the jury implicitly found that defendant committed felony-murder, rather than some lesser form of homicide. (Gonzales, supra, 5 Cal.4th at p. 200.) That finding forecloses any reasonable probability that jurors would have returned a more favorable verdict had they received instructions on second degree murder based on implied malice or express malice without premeditation, voluntary manslaughter based on imperfect self-defense or provocation, and involuntary manslaughter based on brandishing a weapon. (See People v. Gonzalez (2012) 54 Cal.4th 643, 654 ["Felony-murder liability does not require an intent to kill, or even implied malice, but merely an intent to commit the underlying felony"]; see also People v. Price (2017) 8 Cal.App.5th 409, 430 [defenses that mitigate malice, such as provocation and imperfect self-defense, do not apply to felony murder]; People v. Cavitt (2004) 33 Cal.4th 187, 197 [the perpetrator of a killing committed in the commission of a felony can be found guilty of felony murder even if the death was unintentional, accidental, or negligent].) Here, as in Gonzalez, the jury's special circumstance findings render harmless any error in failing to instruct on lesser included offenses to first degree premeditated murder. (Gonzalez, supra, at p. 200.)
The recent changes to the felony-murder law do not affect this case because defendant was alleged to be the actual killer and major participant in the underlying felony. (See Sen. Bill No. 1437 (2017-2018 Reg. Sess.).)
Defendant attempts to distinguish Gonzalez in his reply brief. He observes that Gonzalez involved multiple defendants and aiding and abetting principles, which required the jury to make "additional findings beyond those necessary for felony murder—such as the finding that aiders and abettors had the intent to kill, or acted with reckless indifference to human life." (Gonzales, supra, 5 Cal.4th at p. 192.) The Gonzalez majority believed these findings confirmed the felony-murder verdict, as jurors would have declined to make them had they harbored doubts as to whether the defendants committed felony murder. (Id. at pp. 205-206.) But two dissenting justices disagreed. (Id. at pp. 209, 215 (dis. opn. of Liu, J.).)
Justice Liu, joined by Justice Krueger in dissent, found the majority's reasoning "unpersuasive in light of the evidence presented to the jury in this case." (Gonzalez, supra, 5 Cal.5th at p. 212 (dis. opn. of Liu, J.).) Reviewing the record, Justice Liu found there was "more than substantial evidence from which the jury could have doubted that defendants intended to rob [the victim], a required element of robbery-based felony murder." (Ibid.) Yet the prosecution's "only theory" of murder was that the defendants intended and attempted to rob the victim and caused the victim's death during the commission of the robbery. (Ibid.) That theory, Justice Liu reasoned, was tantamount to a true finding on the robbery-murder special circumstance. (Ibid.) "In other words," Justice Liu explained, "the only theory on which the jury could have convicted defendants of felony murder necessarily entailed a true finding on the robbery murder special circumstance." (Id. at pp. 212-213 (dis. opn. of Liu, J.).) Under the circumstances, Justice Liu cautioned that the additional findings required by the robbery-murder special circumstance provided "no independent confirmation of the jury's felony-murder verdict." (Id. at p. 213 (dis. opn. of Liu, J.).) "Once the jury returned a guilty verdict on felony murder," Justice Liu concluded, "a true finding on the robbery-murder special circumstance was a foregone conclusion." (Ibid.)
These concerns—which failed to persuade the Gonzalez majority—are not present here. Unlike the jury in Gonzalez, the jury here was not called upon to apply aiding and abetting principles to a felony murder characterized by conflicting evidence as to which of multiple defendants may have intended to commit the underlying felony. To the contrary, defendant was the only person charged with Jerry's murder, and he readily admitted having had the intent required for attempted robbery. Faced with defendant's self-incriminating testimony, jurors not only found the special circumstances true, they also found defendant guilty beyond a reasonable doubt of attempted robbery in count 2, a finding defendant does not challenge. Unlike the situation in Gonzalez, where the defendants were not charged with robbery or attempted robbery, the jury's verdict on count 2 provides independent confirmation of the felony-murder verdict, providing further assurance that jurors would have reached the same result had the omitted instructions been given.
The jury's true findings on the firearm enhancements attached to counts 1 and 2 provide further confirmation, if more were needed, that the error was harmless. Unlike Gonzales, where the jury rejected all firearm allegations, the jury here found true allegations that defendant personally and intentionally discharged a firearm, used a firearm in the commission of a felony, and discharged a firearm causing death. (§§ 12022.5, subd. (a), 12022.53, subds. (b) - (d).) The jury thus rejected defendant's explanation that the gun fired accidentally, rendering harmless any error in failing to instruct the jury with involuntary manslaughter based on brandishing a firearm. (People v. Thomas (2012) 53 Cal.4th 771, 814 [trial court's failure to instruct on involuntary manslaughter based on brandishing a firearm was harmless where evidence was inconsistent with theory that shooting was accidental].) Here, again, the jury's findings are consistent with the prosecution's theory that Jerry was shot and killed during the commission of a felony, leaving little reason to believe that jurors would have found defendant guilty of a lesser included offense had they been properly instructed.
Taken together, the true findings on the special circumstances and firearm allegations provide indicia, above and beyond those deemed sufficient by the Gonzalez majority, that the jury genuinely believed a felony murder occurred, and was not forced into an all-or-nothing choice by the trial court's failure to instruct on lesser included offenses. On the record before us, we perceive no reasonable probability defendant would have obtained a more favorable result absent the instructional error. We therefore conclude the error was harmless, even allowing for the concerns expressed in Justice Liu's dissent in Gonzalez. B. Evidence of Uncharged Robbery
Defendant argues the trial court made two related errors in admitting evidence of the uncharged robbery of a Starbucks in Amador County. First, defendant argues the trial court erred in finding he opened the door to evidence of the uncharged robbery through his direct testimony. Second, he argues the trial court erred in finding the probative value of the uncharged robbery outweighed its potential for prejudicial effect. Neither contention has merit.
1. Additional Background
The prosecution filed a pretrial motion to admit evidence of the uncharged robbery pursuant to Evidence Code section 1101, subdivision (b). Defendant moved to exclude the evidence. The trial court ruled that the evidence would be inadmissible in the prosecution's case-in-chief. However, the trial court left open the possibility that the court might revisit the issue depending on the evidence presented at trial.
On direct examination, defendant testified he began using methamphetamine heavily in the period preceding the attempted robbery of the Stockton Subway. He testified he was paranoid and delusional from methamphetamine use and sleeplessness, adding that the night of the attempted robbery was "Probably [the] most delusional I've been ever." Defendant explained that John pressured him to commit the robbery, stating that he would shoot him if he did not. Defendant also testified that John gave him a gun to use that night. According to defendant, he had used an airsoft gun to commit the earlier robbery of the Subway in Lodi.
On cross-examination, defendant admitted robbing the Subway sandwich shop in Lodi, but claimed he was "out of [his] mind." When the questioning turned to the next charged robbery, of the jewelry department of the Kmart store in Lodi, defendant admitted that he committed the crime, but claimed, again, that he was "strung out on drugs" and not in his "right mind." Defendant also suggested that he was manipulated by others into robbing the Kmart.
During a break, the prosecutor renewed her request to admit evidence of the uncharged Starbucks robbery in light of defendant's testimony that he was too intoxicated to be fully responsible for his actions, and he was acting under duress when he committed the attempted robbery of the Stockton Subway. The trial court agreed that the uncharged robbery was relevant to the issues of intent and premeditation and admitted the evidence over defense objection.
As his cross-examination continued, defendant confirmed that he drove himself to Amador County, formed the intention to rob the Starbucks there, and committed the robbery. However, defendant insisted he used an airsoft gun to rob the Starbucks. On redirect, defendant testified that he was only acting under duress when he robbed the Subway in Stockton, and not when he robbed the Subway in Lodi, the Kmart, or the Starbucks.
The prosecutor returned to the subject of the uncharged Starbucks robbery in rebuttal, presenting testimony from three witnesses (Starbucks shift manager P.H. and two law enforcement officers) and playing surveillance video of the robbery from a Starbucks security camera.
2. Whether Defendant "Opened the Door" to the Starbucks Robbery
Defendant argues the trial court erred in finding he opened the door to questioning about the uncharged Starbucks robbery during his direct examination. A trial court has broad discretion in deciding whether to admit evidence for impeachment purposes, including evidence subject to exclusion under Evidence Code section 352. (People v. Turner (2017) 13 Cal.App.5th 397, 408.) We review the admission of such evidence for abuse of discretion. (Ibid.)
The trial court acted within its discretion in finding that defendant's direct testimony opened the door to questioning about the uncharged Starbucks robbery. Although defendant admitted committing the charged robberies and attempted robbery, and acknowledged having acted with some intent, he nevertheless suggested he was not responsible for his actions, both because he was "out of [his] mind" and "delusional" from sleeplessness and methamphetamine use, and because, at the time of the attempted robbery, he was afraid that John would shoot him. The trial court, having heard defendant's direct testimony, could reasonably conclude that defendant had placed his intent at issue, thereby opening the door to admission of evidence regarding the Starbucks robbery. As we discuss more fully below, evidence that defendant drove himself to Amador County and willingly committed an armed robbery was relevant to rebut the defendant's testimony that he lacked the ability to formulate the required intent as a result of his methamphetamine use, and only attempted to rob the Subway in Stockton because he was afraid of John. The trial court did not abuse its discretion in finding that defendant opened the door to evidence regarding the uncharged Starbucks robbery.
3. Whether the Trial Court Erred in Admitting the Starbucks Robbery Under Evidence Code Sections 1101 , Subdivision (b), and 352
Defendant argues the trial court erred in admitting evidence of the Starbucks robbery under Evidence Code section 1101, subdivision (b), because the evidence was more prejudicial than probative under Evidence Code section 352. We disagree.
Evidence Code section 1101, subdivision (b) "authorizes the admission of 'a crime, civil wrong, or other act' to prove something other than the defendant's character." (People v. Leon (2015) 61 Cal.4th 569, 597, italics omitted; accord People v. Ewoldt (1994) 7 Cal.4th 380, 393 [Evidence Code section 1101, subdivision (b) "does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition"].)
" 'In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' " ' " (People v. Leon, supra, 61 Cal.4th at p. 598, quoting People v. Ewoldt, supra, 7 Cal.4th at p. 402; accord, People v. Harris (2013) 57 Cal.4th 804, 841 [evidence of defendant's prior burglary of woman's apartment admissible to show defendant's larcenous intent as to charged burglary of other woman's apartment where crimes were sufficiently similar].)
Additionally, "the uncharged act must be relevant to prove a fact at issue (Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (People v. Leon, supra, 61 Cal.4th at pp. 597-598.) As relevant here, "evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute." (People v. Lopez (2011) 198 Cal.App.4th 698, 715.) When that happens, the prejudicial effect of the evidence of the uncharged offense outweighs its probative value. (Ibid. [evidence of a prior car theft and burglary of a purse from a car that were linked to the defendant were not admissible to show the defendant's later intent to steal a purse from a house because his intent to take the purse was not reasonably in dispute; cf. People v. Rocha (2013) 221 Cal.App.4th 1385, 1386 [admission of evidence of prior burglary of garage admissible to show the defendant entered the victim's garage with larcenous intent where there was "a bona fide dispute as to the mental element of the charged offense"].)
" 'We review the trial court's decision whether to admit evidence, including evidence of the commission of other crimes, for abuse of discretion.' " (People v. Leon, supra, 61 Cal.4th at p. 597.) We find no abuse of discretion here.
Defendant suggests the uncharged Starbucks robbery was not sufficiently similar to the attempted robbery of the Subway in Stockton. He notes that the Starbucks robbery took place 18 days before the attempted robbery of the Subway in Stockton and involved neither violence nor the use of a real gun. But the trial court could have reasonably determined that the Starbucks robbery was similar to the robbery of the Subway in Lodi, which took place on May 1, 2015, a mere week before. The trial court could have also reasonably determined that the Starbucks robbery was similar to the attempted robbery of the Subway in Stockton inasmuch as defendant employed a similar modus operandi (i.e., approaching the cashier of a franchise restaurant, displaying a gun and demanding money). That the attempted robbery of the Subway in Stockton ended in tragedy does not compel the conclusion the Starbucks robbery was dissimilar, so far as defendant's intent was concerned. The trial court could have reasonably concluded the attempted robbery of the Subway in Stockton and the Starbucks robbery were similar, only the former failed to go according to plan. On the record before us, we perceive no basis for concluding that the Starbucks robbery was insufficiently similar to the charged offenses.
Nor can we agree with defendant that the trial court, by admitting the Starbucks evidence, allowed the prosecution to overprove its case. As noted, a primary issue at trial was whether defendant was capable of forming the intent necessary for robbery and attempted robbery, given his methamphetamine use and purported fear of John. Evidence that defendant independently drove to Amador County and efficiently committed an armed robbery was not only probative of his intent to commit the charged offenses, it was also probative of his ability to formulate the required intent, notwithstanding his significant methamphetamine use. Evidence that defendant willingly committed the uncharged robbery, acting alone and on his own volition, was also probative to rebut defendant's testimony that he was acting on orders from John when he attempted to rob the Subway in Stockton. The trial court, on this record, could reasonably conclude that evidence of the uncharged Starbucks robbery was probative to rebut the defense theories of voluntary intoxication and duress.
The trial court could also reasonably conclude that the uncharged robbery was not unduly prejudicial under Evidence Code section 352. It is true, as defendant observes, that the risk of prejudice arises whenever other crimes evidence is admitted. (People v. Kipp (1998) 18 Cal.4th 349, 372; People v. Ewoldt, supra, 7 Cal.4th at p. 404.) But that risk was not unusually significant here. The uncharged robbery was no more inflammatory than the charged offenses (People v. Eubanks (2011) 53 Cal.4th 110, 144), and the evidence was presented quickly, without unnecessary details. The jury was also specifically instructed that evidence of the uncharged robbery could only be considered for limited purposes and could not be used to draw the conclusion that defendant has a bad character or predisposition to commit crimes. We presume the jury understood and followed the trial court's instruction (People v. Sanchez (2001) 26 Cal.4th 834, 852), which mitigated the potential for prejudice. (People v. Cage (2015) 62 Cal.4th 256, 275.)
We conclude the trial court acted within its discretion in finding evidence of the uncharged Starbucks robbery was relevant and sufficiently similar to the charged offenses to prove intent. We further conclude the trial court acted reasonably in concluding the probative value of the evidence was not substantially outweighed by the risk of prejudice, confusion, or undue consumption of time. We therefore reject the claim of error. C. Prosecutorial Misconduct
Defendant argues the trial court erred in denying oral and written motions for a mistrial based on prosecutorial misconduct. He maintains the prosecutor committed misconduct by: (1) engaging in rude and inappropriate courtroom behavior; (2) misstating the law in closing argument; and (3) appealing to the jurors' passions in closing argument. We address these contentions momentarily, pausing first to review the applicable legal principles and standards of review.
1. Applicable Legal Principles and Standards of Review
We review the trial court's rulings on prosecutorial misconduct for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 792-793.) We review the denial of a motion for mistrial under the same deferential standard. (People v. Ault (2004) 33 Cal.4th 1250, 1260; People v. Ayala (2000) 23 Cal.4th 225, 283.)
A prosecutor in a criminal case can commit misconduct under either federal or state law. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
2. Intemperate Courtroom Behavior
Towards the end of the trial, defense counsel made an oral motion for a mistrial, citing the prosecutor's "disrespectful" courtroom demeanor, which included eye rolling, book slamming, and audible sighing. The trial court agreed that some of the prosecutor's behavior had been unprofessional and took the motion under submission. Shortly thereafter, the trial court instructed the jury that counsel's arguments and objections were not evidence. The trial court then asked whether any jurors believed they would be unable to discharge their duties "based on either the behavior of the attorneys or how the attorneys have treated each other throughout . . . the trial." None of the jurors raised their hands.
Several days later, defense counsel filed a written motion for a mistrial based on the same prosecutorial misconduct. Among other things, the mistrial motion argued that the prosecutor's intemperate courtroom behavior had been "constant." Following oral argument, the trial court denied the motion stating, "It happened a number of times but I can't say it was continual and I can't say it was constant. I also can't say how much of the jury observed or what they saw." The trial court acknowledged that the prosecutor had engaged in "snippy" behavior and unseemly reactions to evidentiary rulings, but found her overall course of conduct did not deprive defendant of a fair trial or result in a miscarriage of justice. Accordingly, the trial court denied the motion.
We disapprove of the prosecutor's unprofessional conduct and demeanor, especially since the conduct apparently continued after the trial court deemed her behavior unprofessional. "A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the State. . . . Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve." (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Audible sighing, eye rolling, book slamming, and other such theatrics fall short of this heightened standard. Nevertheless, we cannot say the trial court abused its discretion in denying the mistrial motions. The trial court, which had a front row seat to the prosecutor's antics, was in the best position to determine whether they were visible to the jury or otherwise deprived defendant of a fair trial. The trial court further allayed any concerns that jurors may have been influenced by the prosecutor's behavior by giving a curative instruction and satisfying itself that jurors would continue to be fair and impartial, despite her conduct. We presume jurors followed the trial court's instructions (People v. Martinez (2010) 47 Cal.4th 911, 957), and have no reason to doubt the court's assessment of their ability to discharge their duties. (People v. Morales, supra, 25 Cal.4th at p. 44; see also People v. Peoples, supra, 62 Cal.4th at p. 793 ["making overly dramatic gestures" will not generally establish prosecutorial misconduct].) We perceive no abuse of discretion in the denial of the mistrial motions.
3. Misstating the Law
Next, defendant argues the prosecutor misstated the law in a PowerPoint slide used in closing argument. The challenged slide features two concentric circles. The word "IMPOSSIBLE" appears in the upper left and lower right corners of the slide, outside the outermost circle. The words, "NOT GUILTY" and "TWO INTERPRETATIONS BOTH REASONABLE" appear in the outer circle. The words "REJECT THE UNREASONABLE - REASONABLE = GUILTY" appear in the inner circle. Defendant argues the slide misstated the law by encouraging jurors to find him guilty if the evidence was reasonable. Defendant's argument ignores the context in which the slide was presented to the jury.
After all the evidence was presented, the trial court instructed the jury. As relevant here, the trial court instructed the jury on circumstantial evidence with CALCRIM No. 224, stating in part: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt," and further stating that if the jurors could draw two or more reasonable conclusions from the circumstantial evidence, they had to accept the one pointing to innocence. The jury was also instructed with CALCRIM No. 225, reiterating that: "[B]efore you may rely on circumstantial evidence to conclude that the defendant had the]required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." The trial court excused the jury for a break shortly thereafter.
The prosecutor provided copies of her PowerPoint presentation to the trial court and defense counsel during the break. Defense counsel objected to the challenged slide on the grounds asserted herein. The prosecutor responded: "It's not just going to sit up there in that fashion. It is a progressive, interactive slide where I discuss the proper legal foundation." The prosecutor explained that the words on the slide would appear in a sequence, beginning with the word "IMPOSSIBLE" and ending with the words, "REJECT THE UNREASONABLE - REASONABLE = GUILTY." "But," she stated, "what you see there is just the final image. Once all of the rest of it gets filled in. That's not going to just be sitting up there. And it's not going to be sitting up there in a vacuum." The trial court approved the slide with modifications not relevant here.
The jury returned and the prosecutor began her closing argument. Turning to the use of circumstantial evidence to prove intent or mental state, the prosecutor explained: "So if you, when you're evaluating circumstantial evidence, and this is for purposes of going to prove the intent or mental state, that's what this caveat applies to. If you find that it is just impossible, any inference, any circumstantial evidence, it's just impossible in totality of all the other information then you must disregard it. If you also then find that there are two reasonable interpretations, both are reasonable and that is what the law says, they must be reasonable, and one points to guilt and one points to innocence, you must by law accept that which points to innocence, to not guilty. However, the law further states that you must reject the unreasonable. Accept only the reasonable. And when you do so in this case you're going to find that the defendant is guilty."
Defendant argues that the words, "REASONABLE = GUILTY" amount to a misstatement of the law. We do not disagree. Had the prosecutor urged the jury to find defendant guilty based on any reasonable inference drawn from circumstantial evidence, we would have to agree that she misstated the law. (People v. Centeno (2014) 60 Cal.4th 659, 673 [prosecutor misstated the law by urging the jury to find the defendant guilty based on a "reasonable" account of the evidence].) But the record establishes that the words "REASONABLE = GUILTY" appeared in the context of a more nuanced discussion of conclusions drawn from circumstantial evidence. That context is important here.
When, as here, the prosecutor is alleged to have engaged in prosecutorial misconduct during closing argument, the question " 'is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Harrison (2005) 35 Cal.4th 208, 244.) The prosecutor's statements are examined in the context of the entire argument and the instructions given to the jury. (People v. Morales, supra, 25 Cal.4th at pp. 44-46.) We do not lightly infer that the jury drew the most, rather than the least, damaging meaning from the prosecutor's statements. (People v. Shazier (2014) 60 Cal.4th 109, 144.)
Viewing the PowerPoint slide in the context of the prosecutor's entire argument, as well as CALCRIM Nos. 224 and 225, we are satisfied that the jury would have understood the words "REJECT THE UNREASONABLE - REASONABLE = GUILTY" to mean that once jurors rejected unreasonable interpretations of the evidence, they would be left with a reasonable interpretation supporting a guilty verdict. True, the slide employs an inartful shorthand to convey these concepts. But the prosecutor's accompanying argument and jury instructions left no doubt about the prosecution's burden of proof or the role of reasonableness in evaluating the evidence. To the extent jurors believed the slide was inconsistent with the instructions, they were further instructed to follow the latter. (See CALCRIM No. 200 ["You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions"].) We presume the jury followed the trial court's instructions, rather than any conflicting comment by the prosecutor, in reaching a verdict. (People v. Morales, supra, 25 Cal.4th at p. 47.)
Viewed in the context of the prosecutor's entire argument and the jury instructions, the jury was not reasonably likely to understand the PowerPoint slide as diminishing the prosecution's burden of proof. We therefore conclude there was no prosecutorial error.
4. Sympathy for the Victim
Next, defendant argues the prosecutor engaged in misconduct during closing argument by eliciting sympathy for the victim, Jerry. Specifically, defendant challenges the prosecutor's exhortations to "give Jerry justice in this case" and "consider Jerry [] also has the right to a fair and impartial trial. Jerry [] also has a right to justice." We agree that the prosecutor's argument was improper; nevertheless, we conclude that defendant's claim of prosecutorial misconduct has been forfeited.
As a general rule, a claim of prosecutorial misconduct is preserved for appeal " 'only if the defendant objects in the trial court and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutor's misconduct.' " (People v. Lopez (2013) 56 Cal.4th 1028, 1072, abrogated on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) "The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice. [Citation.] Obviously, that purpose can be served only if defendant is required to, and does, raise any objection before the jury retires." (People v. Williams (1997) 16 Cal.4th 153, 254.)
Defendant argues that any objection to the prosecutor's comments regarding Jerry would have been futile. We disagree. When defense counsel objected to the prosecutor's courtroom behavior, the trial court admonished the jury and took steps to ensure that jurors would continue to be fair and impartial. On this record, there is no reason to believe the trial court would not have admonished jurors to disregard any improper appeal for sympathy for Jerry had such an admonition been requested. We therefore conclude the claim has been forfeited. D. Remand for Resentencing
Defendant argues the case should be remanded for resentencing pursuant to Senate Bill No. 620. The People concede that Senate Bill No. 620 applies retroactively and remand is appropriate to give the trial court an opportunity to exercise its newly acquired discretion to strike the firearm enhancements pursuant to section 12022.53, subdivision (h). We accept the concession and shall order the appropriate remand. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.) E. Fines and Fees
Defendant argues the trial court erred in imposing various fines and fees. At the sentencing hearing, the trial court imposed a $10,000 restitution fine (§ 1202.4), a $120 court security fee (§ 1465.8), a $90 conviction assessment fee (Gov. Code, § 70373), and a $39 law enforcement fee (§ 1202.5). The trial court also imposed a $1,000 "surcharge," apparently in connection with the restitution fine. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the imposition of the foregoing fines and fees without an ability-to-pay hearing was a violation of his right to due process. He also argues the $1,000 surcharge was unauthorized. We address these contentions in turn.
1. Dueñas
The People respond that defendant forfeited his Dueñas challenge by failing to object on due process grounds in the trial court. The People's argument lacks merit. Although defense counsel did not invoke Dueñas (which had not yet been decided) or articulate a due process argument, she clearly objected to the imposition of any fines or fees on the ground that defendant lacked the ability to pay. That objection was sufficient to preserve the issue. (People v. Scott (1978) 21 Cal.3d 284, 290 [a defendant's objection is sufficient if it "fairly apprises the trial court of the issue it is being called upon to decide"].) However, we are not convinced that Dueñas was correctly decided.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the Dueñas court's conclusion that due process requires the trial court to conduct an ability to pay hearing before imposing court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (People v. Kopp, supra, at pp. 95-96.) In the meantime, we join those courts that have concluded the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge on the merits.
2. $1,000 Surcharge
Defendant argues the $1,000 surcharge was unauthorized. The basis for the surcharge is unclear on this record. Section 1202.4, subdivision (l) provides that the board of supervisors of a county, at its discretion, "may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of which shall be deposited in the general fund of the county." We need not speculate on the matter, however, as we shall direct the trial court to clarify the statutory authority for the $1,000 surcharge on remand.
III. DISPOSITION
The judgment of conviction is affirmed, and the matter remanded to the trial court for a new sentencing hearing, during which the trial court shall (1) exercise its discretion as to whether to strike defendant's firearm enhancements in the interests of justice, and (2) specify the statutory authority for the $1,000 surcharge.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.