Opinion
B230610
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK D. CHRISTMAS, Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA363701)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Frederick D. Christmas of four counts of second degree robbery (Pen. Code, § 211) and one count of attempted second degree robbery (§§ 664 & 211). With respect to two of the robbery convictions, the jury found that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). Defendant waived his right to a jury trial and admitted that he suffered two prior convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). The trial court sentenced defendant to state prison for a determinate term of 38 years, four months and an indeterminate term of 50 years to life.
All statutory citations are to the Penal Code unless otherwise noted.
The jury acquitted defendant of three additional counts of second degree robbery. (§ 211.)
On appeal, defendant contends that insufficient evidence supports his convictions, the trial court erred in denying his request for appointment of an eyewitness identification expert, the trial court erred in refusing to instruct the jury about the sufficiency of circumstantial evidence with CALJIC No. 2.01, and the trial court abused its discretion in failing to strike one or both prior strike convictions with respect to two of his robbery convictions. We affirm.
BACKGROUND
Counts 1 and 6—The Robberies of Giovanni Guerrero at Yum Yum Donuts
Giovanni Guerrero worked as a cashier at Yum Yum Donuts, which was located at 1976 South La Cienega Boulevard in Los Angeles. On June 6, 2009, a Black male entered the shop. The man's head was covered with a black scarf and the man was wearing dark glasses. The man told Guerrero, "Give me the money before I shoot you." Guerrero said, "No." The man repeated his demand. Guerrero did not say or do anything in response. The man lifted his shirt and showed Guerrero that he had a gun in the waistband of his pants. Then, for a third time, the man said, "Give me the money before I shoot you." Guerrero was afraid the man would shoot him. Guerrero opened the cash register and removed about $120. The man grabbed the money and left the store on a bicycle. The prosecutor played a surveillance video of the robbery for the jury.
About 8:55 p.m. on September 14, 2009, two men separately entered the Yum Yum Donuts. Guerrero recognized the second man as the man who robbed him on June 6th. Guerrero was on the telephone when the men entered. The second man told Guerrero to put down the telephone and give him the money before he shot Guerrero. Guerrero did not see a gun; the man had his hand inside a backpack. Guerrero believed the man had a gun and was afraid. Guerrero gave the man about $220 from the cash register. The two men ran from the shop. The prosecutor showed Guerrero a surveillance video, which Guerrero testified accurately showed the September 14 robbery.
Count 5—The Robbery of Amado Herrera at Ciccero Pizza
Juan Carlos Reyes Mejia worked as a cook at Ciccero Pizza, which was located at 1536 South La Cienega Boulevard in Los Angeles. Mejia testified that sometime in September 2009, a man with a "rag" over his face entered the restaurant and sat down. A second man entered the restaurant and approached the counter. The second man's face was not covered. Mejia described the second man as a Black man with somewhat "slanted" eyes. Mejia identified defendant at trial as the second man.
Amado Herrera was in the back of the restaurant when he heard his co-worker "Roberto" and another man speaking loudly. Herrera approached the front of the restaurant and asked Roberto what was happening. Roberto responded, "They are asking me for the money." Herrera said, "Give them the money. Besides, that's not your money anyway." Herrera took the money from the cash register and placed it on the counter. The man said, "All of the money." The man had his hand placed as though he was going to pull something from underneath his jacket. Herrera believed the man wanted him to think he had a gun. Herrera gave the man the money. The two men left the restaurant. Herrera described the man who demanded the money as short with a dark complexion. Herrera was unable to see any part of the man's face.
Roberto Mendez testified that on September 9, 2009, two men entered the restaurant within seconds of one another. The first man sat down. The second man, who Mendez described as "between Asian and Black," asked Mendez for money. Mendez explained that the man had dark skin and small eyes that made the man look Asian. Mendez stated that he did not remember the man's face very well, but he could recognize the man. Mendez did not see the man in court.
On October 20, 2009, Los Angeles Police Department Detective Salvador Loera interviewed Mejia at Ciccero Pizza. Detective Loera showed Mejia a six-pack photographic lineup. Mejia circled defendant's photograph. Mejia wrote, "He looks like him because of his slanted eyes and because he is a Black man."
Count 8—The Robbery of Victor Luna at the 7-Eleven
Victor Luna worked at the 7-Eleven store that was located at 1665 South Robertson Boulevard in Los Angeles. About 2:20 a.m. on October 5, 2009, a man entered the store and asked for cigarettes. Luna approached the man and asked for identification. The man said, "Give me $40." The man showed Luna a revolver and said, "Give me the money." When Luna opened the cash register, the man said, "Give me 45, not 40." Luna gave the man $45. Luna was afraid that the man would shoot. The man left. Luna was unable to identify the robber from a six-pack photographic lineup. Luna wrote that the robber's head was covered. The prosecutor played a video and audio recording of the robbery for the jury.
Count 7—The Attempted Robbery of Brian Newell at Hoagies and Wings
Bryan Newell worked at Hoagies and Wings which was located at 1544 South La Cienega Boulevard. About 10:00 p.m. on October 19, 2009, a man come to the window and said to Newell, "Give me all the money," or he would shoot. Newell did not see a gun, but was afraid the man was going to shoot. Newell closed the window and went to the back of the restaurant. The man pushed on the window and shattered it. Newell stayed in the back of the restaurant for 10 or 15 minutes. When he returned to the front of the restaurant, Newell determined that no property had been taken. Newell identified defendant at trial as the man who broke the window.
A few days after the attempted robbery, police officers showed Newell a six-pack photographic lineup. Newell selected defendant's photograph. Newell wrote, "I saw the suspect through the window and I noticed that the features around his face and his eyes was a match with the photograph."
The Police Investigation
In October 2009, Los Angeles Police Department Detective Paul Funicello and other police officers searched defendant's apartment at 1531 South Sherbourne Avenue in Los Angeles. The police were looking for clothes and a gun that were depicted in the security videos of various robberies. The police found a black bandana, a blue bandana, and a pair of sunglasses in the hall closet. Detectives Funicello and Anaya returned to the apartment an hour or two after the search. Defendant's father was there and gave Detective Anaya a revolver. The revolver was missing its cylinder, the part of the firearm that holds the ammunition.
Detective Loera arrested defendant and interviewed him later the same day. A videotape of the interview was played for the jury. During the interview, defendant asked Detective Loera if he was going to "go away for a long, long time?" Detective Loera responded that he could not promise anything, but that cooperation would go a long way. Defendant said, "I mean, I'm already caught in a situation, I can't deny it."
Detective Loera advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436.
Detective Loera asked defendant how many times he had robbed Ciccero Pizza. Defendant responded that he had "lost count," but the last time he remembered "it was three." Defendant stated that Darryl Johnson was with him at Ciccero Pizza. Detective Loera showed defendant a photograph and said, "Look at that; I got you." Defendant responded, "That's me." Detective Loera said, "That's you and I've got you circled for a reason, why is that?" Defendant responded, "Because it's me."
Detective Loera asked defendant, "How about the Yum Yum Donuts?" Defendant stated that he could not remember "doing Yum Yum Donuts," and that he would admit it if he did, as he had just admitted "three Ciccero's."
Detective Loera said to defendant, "So then I got you at the Hoagies & Wings, remember that thing? Yes, you do, huh? Tell me about that place. Why that place?" Defendant responded, "I don't know. Like I said, I need help." Detective Loera asked defendant, "Did you do the Hoagies?" Defendant responded, "I vaguely remember that one." Defendant asked if he had broken a window and said that he assumed it had been a dream. Defendant said he remembered wearing a black hoodie—he did not remember if it had a design on it—and a Grinch shirt. Defendant explained, "I was walking through the streets and just walking and just roaming around and then I met up with the homies, like, 'Well, do you have the money?' I'm like, 'No, could you front it to me?' It's like, 'I can't do that.' It's like, 'Well, I need the stuff real bad' and he wasn't having it so I walked down a block and saw Hoagies & Wings." Defendant continued, "Because I saw Hoagies & Wings and it through [sic.] me off and then I said, 'Look, give me your money and I'm out of here.' He tried to close the window and then I pushed the window lightly but then it broke." Defendant said that he was alone at the Hoagies & Wings. Detective Loera asked defendant if he had gotten any money. Defendant responded that he had not.
Detective Loera then asked defendant to try to remember in his dreams about the Yum Yum Donuts. Detective Loera said that defendant's buddy was with defendant. Detective Loera showed defendant some photographs and said, "look at all these pictures I got of you. You see what I'm saying. [¶] So tell me about that dream that you vaguely remember. It was more than once. I know you remember, man. Go ahead." Defendant responded, "Same thing. I asked for the money, didn't brandish a weapon, told them I had one, we left." Detective Loera asked defendant how many time he "hit that place." Defendant responded, "Maybe twice." Defendant told Detective Loera that he rode a purple and black striped mountain bike to the first robbery at the Yum Yum Donuts and that a Black male accompanied him to the second robbery at the Yum Yum Donuts. Defendant said that the mountain bike was in the back of his house.
With respect to robbery at the 7-Eleven, Detective Loera said to defendant, "got you there." Detective Loera told defendant that he had shown a photograph to defendant's father—apparently taken at the 7-Eleven—and defendant's father said, "'That's my son right there. I can recognize him.'" Defendant asked, "They said I had a black revolver?" Later, Detective Loera asked defendant what he remembered about the 7-Eleven. Defendant said, "Like I said, I went in there, I put my hand in my jacket, regular routine and I told them 'Give me the money. All I need is 45 bucks.' . . . I said, 'I am in desperate need. Please give me 45.' He said, 'Just 45?' And I'm like, 'Please, just 45, that's all I need, 45.'"
Defendant asked Detective Loera to not tell his father about "[t]he robberies, the drugs, everything." Defendant said that he needed help and that he never wanted to be "in this situation" again. Detective Loera asked defendant about his drug use. Defendant responded, "I do crystal, eat pills and this one is white lady but I think it's powder." Defendant also had a prescription for medical marijuana to help him sleep. Defendant stated that he initially was afraid to commit robberies, "then the hunger just got stronger than the fear."
Detective Loera told defendant that one of his partners had found a gun at defendant's house and asked defendant to be honest with him. Defendant responded, "One of the first ones." Defendant said, "I never pulled it out." Detective Loera said that defendant had shown "the guy" enough of the gun to scare him and to let him know that defendant was serious. Defendant responded, "I didn't do a good job of hiding it."
Detective Loera asked defendant what he did with the money. Defendant responded, "I smoked it all."
The Defense
On October 5, 2009, Los Angeles Police Department Officers Edward Aragonez and Edward Stonecipher responded to the 7-Eleven on Robertson Boulevard. The officer attempted to obtain from Luna a description of the perpetrator. Luna described the perpetrator as a Black male with black hair and brown eyes. The perpetrator wore a black jacket. Luna did not say anything about the perpetrator having distinctive eyes.
On October 27, 2009, Los Angeles Police Department Detectives Lisa Householder and Lynett Popper went to the 7-Eleven and showed Luna a six-pack photographic lineup. Luna did not select any of the photographs. Detective Popper did not recall Luna saying that there was anything unusual or distinctive about the perpetrator's eyes.
Defendant testified in his own behalf. Defendant testified that he lived with his family in an apartment on Sherborne Drive. On October 21, 2009, the police came to defendant's apartment and arrested him. As he was being arrested, defendant thought, "What can I possibly be getting arrested for." Defendant admitted that he had pleaded guilty to two robberies in 2008, and that he used marijuana and "crystal meth" in October 2009.
Defendant testified that when he was arrested on October 21, he remained on the property for four hours. At first, defendant was held outside a police car and then he was placed inside the police car. Periodically, a detective would ask defendant where clothes and a gun were. Defendant did not know. During the time he remained on the property, defendant did not have anything to drink or eat. Defendant needed to use the bathroom, but did not.
From his apartment, defendant was taken to the Wilshire Division police station. On the way, police officers questioned defendant about the robberies and some medical marijuana shops. As to the robberies, defendant denied everything. As to the medical marijuana shops, defendant told the officer that he could not help them.
At the police station, Detective Loera told defendant, "'What you said at the house you will say in the interview room.'" Defendant testified that he had "admitted to the robberies" at his house because Detective Loera told him that if he "didn't let him know where any property was or any idea of other robberies, he was going to throw [his] family outside the house until he did." Defendant believed Detective Loera because the detective "seemed very angry" when he spoke. Asked to state exactly what Detective Loera had said at the house, defendant testified that Detective Loera had asked defendant if defendant knew anything about the robberies. Defendant responded, "No." Detective Loera then asked defendant if defendant knew anything about a black jacket or a gun. Defendant denied any knowledge. According to defendant, Detective Loera said "if he couldn't find what he was looking for now, he would throw [defendant's] family out of the house for a week until he did." Defendant told Detective Loera that he had committed the robberies because he did not want his family to get kicked out of their home.
Defendant testified that when he admitted to Detective Loera that he committed the robberies he could not provide the detective with the locations or details of the robberies. Defendant testified that he learned of the details of the robberies at the 7-Eleven, Yum Yum Donuts, and Ciccero Pizza from Detective Loera. With respect to the robbery at the 7-Eleven, Detective Loera said to defendant, "What kind of person robs a 7-Eleven for $45. Makes a demand for $40 and tries to make a demand for $45." As to the robberies at Yum Yum Donuts and Ciccero Pizza, Detective Loera "informed [defendant] multiple times."
Defendant denied that the revolver that was recovered was his. Defendant said that the gun belonged to Darrell Johnson. Johnson and a Hispanic man with red hair and green eyes told defendant that they needed a place to store the gun. Defendant knew about the robberies because Johnson and the Hispanic man had bragged about them.
DISCUSSION
I. Sufficient Evidence Supports Defendant's Convictions
Defendant contends that his convictions for robbery and attempted robbery are not supported by sufficient evidence. Sufficient evidence supports defendant's convictions.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) An appellate court does not resolve credibility issues or evidentiary conflicts; it looks for substantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 403.)
A. Counts 1 and 6—The Robberies of Guerrero at Yum Yum Donuts
Defendant contends that insufficient evidence supports his convictions for robbing Guerrero at Yum Yum Donuts on June 6, 2009 (count 1), and on September 14, 2009 (count 6), because Guerrero did not identify defendant as the robber in his testimony. Guerrero's description of the robbery and defendant's subsequent confession to Detective Loera that he committed robberies at Yum Yum Donuts on two occasions constitute sufficient evidence to support defendant's robbery convictions in counts 1 and 6.
Defendant attempts to discount the evidentiary significance of his confession to Detective Loera by arguing that reliance solely on his confession violates the corpus delicti rule. Defendant's reliance on the corpus delicti rule is unavailing. "The corpus delicti rule requires the prosecution to prove that 'the charged crime actually happened' exclusive of the accused's extrajudicial statements. [Citation.] Only a 'slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient.' [Citations.] Such evidence need not point to defendant as the perpetrator. [Citation.]" (People v. Ray (1996) 13 Cal.4th 313, 342.)
Substantial evidence independent of defendant's confession establishes that the robberies at Yum Yum Donuts (as well as the robberies at Ciccero Pizza and the 7-Eleven, and the attempted robbery at Hoagies and Wings) "actually happened." Guerrero testified in court that he was robbed twice at Yum Yum Donuts (likewise, Herrera and Luna testified that they were robbed at Ciccero Pizza and the 7-Eleven, and Newell testified that he was the victim of an attempted robbery at Hoagies and Wings). Defendant's confession was not used as evidence to establish that the robberies at Yum Yum Donuts (and the offenses at Ciccero Pizza, the 7-Eleven, and Hoagies and Wings) actually occurred; rather it was used to identify defendant as the perpetrator of those offenses.
B. Count 5—The Robbery of Herrera at Ciccero Pizza
Defendant contends that insufficient evidence supports his conviction for robbing Herrera at Ciccero Pizza (count 5) because Mejia's identifications of defendant were suspect, and Herrera and Mendez could not identify defendant in court. The jury heard defendant's challenges to Mejia's identifications of defendant in a six-pack photographic lineup and at trial as the person who robbed Herrera. Mejia's identifications of defendant alone are sufficient evidence to support defendant's robbery conviction in count 5. Even if the jury had rejected Mejia's identifications of defendant, defendant confessed to Detective Loera that he committed three robberies at Ciccero's Pizza. Mejia's, Herrera's, and Mendez's descriptions of the robbery and defendant's confession are sufficient evidence to support defendant's robbery conviction in count 5.
C. Count 8—The Robbery of Luna at the 7-Eleven
Defendant contends that insufficient evidence supports his conviction for robbing Luna at the 7-Eleven (count 8) because Luna could not identify him from a photographic lineup. Luna's description of the robbery and defendant's subsequent confession to Detective Loera that he committed a robbery at the 7-Eleven are sufficient evidence to support defendant's robbery conviction in count 8.
D. Count 7—The Attempted Robbery of Newell at Hoagies and Wings
As for defendant's conviction for attempting to rob Newell at Hoagies and Wings (count 7), defendant acknowledges that Newell identified him as the perpetrator in a six-pack photographic lineup and at trial, but argues that Newell's "ability to truly see the man's entire face" was called into question by Newell's testimony that the perpetrator wore a hoodie that came down to right above the perpetrator's eyebrows. Newell's identification of defendant as the person who attempted to rob him at Hoagies and Wings and defendant's subsequent confession to Detective Loera that he attempted to rob Newell independently are sufficient evidence to support defendant's attempted robbery conviction in count 7.
II. The Trial Court Did Not Abuse Its Discretion When It Denied Defendant's Request For Appointment Of An Expert On Eyewitness Identification
Defendant contends that the trial court abused its discretion when it denied his request for appointment of an expert on eyewitness identification. The trial court acted within its discretion.
A. Standard of Review
We review a trial court's decision on the appointment of an expert on witness identification for an abuse of discretion. (People v. Hurley (1979) 95 Cal.App.3d 895, 898-899.) "[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion." (People v. McDonald (1984) 37 Cal.3d 351, 377, overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914.)
B. Relevant Principles
Evidence Code section 730 provides, in relevant part: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required." "[C]ourt-ordered defense services may be required in order to assure a defendant his constitutional right not only to counsel, but to the effective assistance of counsel." (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.) "[I]t is only necessary services to which the indigent defendant is entitled, and the burden is on the defendant to show that the expert's services are necessary to his defense." (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304, disapproved on another point in People v. Martinez (1995) 11 Cal.4th 434, 452.)
"When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony." (People v. McDonald, supra, 37 Cal.3d at p. 377 [error to preclude eyewitness identification expert testimony when no evidence linked defendant to the crime apart from eyewitness identification], overruled on another point by People v. Mendoza, supra, 23 Cal.4th at p. 914.) Nonetheless, expert testimony on psychological factors affecting eyewitness identification "will not often be needed." (People v. McDonald, supra, 37 Cal.3d at p. 377.) A trial court will not be found to have abused its discretion in excluding expert identification testimony when evidence other than eyewitness testimony links defendant to a crime, even though eyewitness testimony is a key element of prosecution's case. (People v. Sanders (1995) 11 Cal.4th 475, 509-510.)
During the People's case, defense counsel requested permission to present testimony from an expert on eyewitness identification because, in his view, the case was a "pure I.D. case." Defense counsel stated that the expert "would simply be called to educate the jury about the dynamics involved in attempting to make I.D. and in this case, it would be predominantly six-pack lineups. That would be the reason why the defense would be seeking to call [the expert]." During argument on the request, defense counsel stated that such expert testimony would be limited only to Mejia's and Newell's testimony as those were the only eyewitnesses who identified defendant in a six-pack photographic lineup. Defense counsel argued that Mejia's and Newell's identifications were not corroborated by physical evidence such as property taken, but were only corroborated by defendant's own statements.
At that point, defense counsel had not yet submitted an application for the appointment of an expert, and the trial court treated defense counsel's request as encompassing such an application.
At the time defense counsel made the request to introduce expert testimony on eyewitness identification, the videotape of defendant's confession had not yet been played for the jury, and Newell had not yet testified.
The trial court ruled that there was sufficient corroborating evidence to preclude defendant from calling an expert on eyewitness identification. The evidence that the trial court found corroborating was defendant's statement to the police—which it found "tantamount to a confession"—and "the overall modus operandi and underlying factors in this case." The trial court further found that any probative value of such expert testimony was substantially outweighed by the testimony's prejudicial impact "in terms of misdirecting and bringing in extraneous circumstances." The trial court stated that, at some point in the trial, it would exclude the testimony under Evidence Code section 352. The trial court stated that defense counsel could renew his request at the close of the People's case.
Assuming that defendant did not forfeit this issue as contended by respondent, we conclude that the trial court did not err in denying defendant's request for appointment of an expert on eyewitness identification because Mejia's and Newell's eyewitness identifications of defendant were substantially corroborated by other evidence, giving the identifications independent reliability. Defendant confessed to Detective Loera that he committed three robberies at Ciccero Pizza and an attempted robbery at Hoagies and Wings. When he confessed to committing three robberies at Ciccero Pizza, defendant admitted that he was depicted in a photograph that Detective Loera showed him. With respect to the attempted robbery at Hoagies and Wings, defendant's confession included a description of the facts surrounding the attempted robbery that closely matched the description of the crime given by Newell, who worked there. Accordingly, the trial court did not abuse its discretion in denying defendant's request for appointment of an expert on eyewitness identification.
III. The Trial Court Did Not Err When It Denied Defendant's Request To Instruct The Jury On Circumstantial Evidence With CALJIC No. 2.01
Defendant contends that the trial court erred when it denied his request to instruct
the jury on circumstantial evidence with CALJIC No. 2.01. The trial court did not err.
CALJIC No. 2.01 provides:
"However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.
"Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.
"Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant's guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant's innocence, and reject that interpretation that points to [his] [her] guilt.
"If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
A. Background
Defense counsel requested the trial court to instruct the jury on circumstantial evidence with CALJIC No. 2.01. Defense counsel acknowledged that there were eyewitness identifications for two of the robberies, but argued that the prosecution was trying to prove the remaining robberies through circumstantial evidence. The trial court asked how defendant's confession or admission should be considered. Defense counsel responded, "It goes to it, Your Honor. But I think if the jury disregards it, if they don't feel it is truthful or accurate, then the rest of the People's case is circumstantial evidence on those robberies." The prosecutor argued that the trial court should not instruct with CALJIC No. 2.01 because the case was primarily based on direct evidence.
B. Relevant Principles
A "trial court is required to give CALJIC No. 2.01 on its own motion when the prosecution relies substantially on circumstantial evidence to prove guilt. [Citations.] Conversely, the instruction need not be given when circumstantial evidence is merely incidental to and corroborative of direct evidence, due to the 'danger of misleading and confusing the jury where the inculpatory evidence consists wholly or largely of direct evidence of the crime.' [Citations.]" (People v. McKinnon (2011) 52 Cal.4th 610, 676.) "The failure to give CALJIC No. 2.01, where appropriate, is assessed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), i.e., reversal is required only when the reviewing court finds, after an examination of the entire cause, that it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error. [Citation.]" (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274.)
The trial court did not err in declining to instruct the jury on circumstantial evidence with CALJIC No. 2.01 because the prosecution relied primarily on direct evidence to prove defendant's guilt. Defendant confessed to Detective Loera that he committed the robberies at Yum Yum Donuts (counts 1 and 6), Ciccero Pizza (count 5), and the 7-Eleven (count 8), and the attempted robbery at Hoagies and Wings (count 7). With respect to the robbery at Ciccero Pizza and the attempted robbery at Hoagies and Wings, Mejia's and Newell's eyewitness identifications were additional direct evidence of defendant's guilt. Moreover, in light of defendant's confessions, even if the trial court erred in declining to instruct the jury with CALJIC No. 2.01, the error was harmless because it is not reasonably probably that the jury would have found defendant not guilty of any of the robberies or of the attempted robbery if the trial court had instructed the jury with CALJIC No. 2.01. (People v. Johnwell, supra, 121 Cal.App.4th at p. 1274.)
IV. The Trial Court Did Not Abuse Its Discretion When It Declined To Strike Either Of Defendant's Prior "Strike" Convictions As To Counts 1 And 8
Defendant contends that the trial court abused its discretion when it declined to strike either of the prior "strike" convictions with respect to count 1 (Guerrero April 1, 2010, robbery) and count 8 (Luna robbery). The trial court acted within its discretion.
A. Standard of Review
We review a trial court's denial of a motion to strike a prior strike conviction for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
B. Application of Relevant Principles
"'[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' ([People v.] Romero [(1996)] 13 Cal.4th [497,] 528 [53 Cal.Rptr.2d 789, 917 P.2d 628].) To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.)
"Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. '[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' ([People v.] Williams [(1998)] 17 Cal.4th [148,] 161.)" (Carmony, supra, 33 Cal.4th at p. 377.)
"But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] Where the record is silent [citation] or '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 378.)
After argument on defendant's Romero motion, the trial court struck one of defendant's prior strike convictions as to counts 5 (Herrera robbery) and 7 (Newell attempted robbery) because it viewed those counts as being factually different from the remaining counts. Thereafter, defendant's sister addressed the court and stated that defendant had made some bad decisions, but that he had a good heart and had matured during his time in custody. Defendant's fiancee told the court that defendant had given her strength to deal with family problems, she had seen defendant's faith grow, and defendant did not want and would never return to the lifestyle that led to his convictions. Defendant's fiancee believed that if permitted, defendant could one day be a leader for God—defendant wanted to meet his fiancee's pastor, he wanted to come to the church, and he had sent his fiancee scriptures from the bible. Defendant told the trial court that during his 15 months he was in custody prior to his sentencing, he had time to think and reflect. Defendant stated that he had made some bad decisions. Defendant stated that while on paper he might look like a menace to society, he was not a menace to society. Defendant stated, "[T]there is not a conscience in my heart that wants to hurt people. [¶] It is hard for me to live day by day knowing I have hurt people, but I don't want to hurt people anymore. This is what is in my heart." The trial court found the statements from defendant's sister and his fiancee "compelling," and struck one of the prior strike convictions with respect to count 6 (Guerrero September 14, 2009 robbery).
Defendant contends that the trial court abused its discretion in denying his request to strike one or both prior strike convictions with respect to the robberies in counts 1 and 8 because those robberies "were of a less serious nature and no one was physically injured"; only small amounts of money were obtained in the robberies; after he was arrested, he cooperated with the police by confessing to the robberies; he was addicted to drugs; and the robberies arose from a single period of aberrant behavior related to his drug addiction. As for his prior strike convictions, defendant describes those offenses— two armed robberies—as "childish" robberies, apparently because he was 18 years old at the time of the offenses; because he asked for I-pods, cell phones, and small amounts of money; and because none of the victims was injured. Like his present offenses, defendant describes his prior strike convictions as arising from a "single period of aberrant behavior." As for his background, character, and prospects, defendant states that he had strong ties to and lived with his family; he was 21 years old at the time of his sentencing, thus giving him time to become a productive member of society if one of his prior convictions was stricken; he admitted his substance addiction; and he had changed and matured during his 15 months in custody.
In this case, defendant was convicted of a series of robberies and an attempted robbery. With respect to the convictions at issue here—the robberies in counts 1 and 8— the jury found that defendant used a firearm in the commission of those offenses. At the time defendant committed the robberies in counts 1 and 8, he was on probation for two prior robbery convictions. In declining to strike either prior strike conviction as to counts 1 and 8, the trial court considered all of the circumstances of defendant's case as well as the statements from defendant, his sister, and his fiancee. Defendant's case does not present the type of "extraordinary" circumstances that would place defendant outside the spirit of the Three Strikes law sentencing scheme. Accordingly, the trial court did not abuse its discretion in declining to strike either of defendant's prior strike convictions as to counts 1 and 8.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J. We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.