Opinion
A145494
01-06-2017
THE PEOPLE, Plaintiff and Respondent, v. DON A. DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. 223551)
Appellant Don A. Davis was convicted, following a jury trial, of first degree residential robbery, first degree residential burglary, and being an ex-felon in possession of a firearm. On appeal, he contends (1) there was insufficient evidence to support his conviction for being an ex-felon in possession of a firearm, (2) the trial court abused its discretion when it admitted evidence of his possession of counterfeit money at the time of his arrest, and (3) the court erred in restricting cross-examination of the robbery victim. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On April 7, 2015, appellant was charged by information with one count of first degree residential robbery (Pen. Code, § 211—count I); one count of first degree residential burglary (§ 459—count II); and one count of possession of a firearm by an ex-felon (§ 29800, subd. (a)(1)—count III). The information alleged, as to counts I and II, that appellant had personally used a firearm, within the meaning of section 12022.53, subdivision (b). The information further alleged that appellant had suffered two prior serious and/or violent felony convictions, within the meaning of section 667, subdivisions (d) and (e), and section 1170.12, subdivisions (b) and (c), as well as two prior serious felony convictions, within the meaning of section 667, subdivision (a)(1). Finally, the information alleged that he had suffered nine prior prison terms, within the meaning of section 667.5, subdivision (b).
Further statutory references are to the Penal Code unless otherwise indicated.
On April 20, 2015, following a jury trial, the jury found appellant guilty as charged, and also found true all related enhancement allegations. The trial court subsequently found true all prior conviction and prison term allegations.
On June 16, 2015, the trial court sentenced appellant to 60 years to life in prison.
Also on June 16, 2015, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Duane Edwards, who was 64 years old at the time of trial, lived in a room in a 58-unit facility on Market Street in San Francisco, which is run by the Community Housing Partnership, an organization that houses formerly homeless individuals. He had lived there for 12 years. About 8:00 p.m. on the evening of December 2, 2014, Edwards was in his room, lying on his bed and watching television. His door was partially open as usual, for cross-ventilation, when a man he did not recognize walked in.
The man, who was holding a gun pointed down at the floor, said " 'I'm only going to say this one fucking time. Give it to me.' " Startled, Edwards pulled money out of his pocket, walked over to the man, and gave him the money, $50 to $70 in cash. Edwards then walked back to his bed and lay down. The man started to leave, but then spotted Edwards's wallet, which was on an entertainment center. Edwards said, " 'Don't take my wallet,' " and the man responded, " 'Don't worry about it. You'll get it back.' "
Edwards was scared during the encounter because the man had a gun. He did not remember the gun, which he looked at only briefly, having a cylinder and he could not say for sure whether the gun was a revolver. When shown a portion of a surveillance video recording that showed a person entering his room, Edwards testified that that person was the robber and that the gun in his hand looked like a pistol; the gun looked the same when he saw it in person.
After the man left his room, Edwards went downstairs and talked to the desk clerk for a few minutes, and then went to talk to a friend who was visiting a resident on the fourth floor. He then went back downstairs again to talk to the clerk, who called 911. The call was made about 10 minutes after the robbery/burglary. Edwards had known Keith Richardson, a neighbor of his, for about a year. The person who robbed him was not Richardson.
San Francisco Police Officer Jordan King responded to the scene and encountered Keith Richardson, a resident of the building leaving his room, number 420 on the fourth floor. When King asked what was up, Richardson said he was "just getting some weed," and showed King a small baggie of suspected marijuana. King asked if he was alone in his room, and Richardson said he was. King then asked if police could search the room, and Richardson said "we could do what we needed to do," and again affirmed that there was no one else in the room.
Using keys Richardson gave him, King then entered room 420, which was a 10 feet by 14 feet cluttered studio apartment containing a bed, a bedside table, a few chairs, a television on top of a banquet, collapsible wardrobes, a mini-refrigerator, and sliding drawers containing kitchen supplies. Once inside, King saw appellant sitting in a chair. He detained and searched appellant, and found a wallet in his back pocket with counterfeit money in it, including one counterfeit $100 bill and three counterfeit $50 bills.
King noticed a black backpack on the bed in the room; it was placed at a 45 degree angle and a few feet away—within "arm's reach"—from where appellant had been sitting. The backpack was open and he saw the curved handle of a firearm inside. He searched the backpack, and saw that the firearm was a loaded Smith and Wesson .357 revolver with a brown handle. He also found a wallet containing Richardson's identification and one counterfeit $20 bill inside of the black backpack. In another backpack, he found bullet resistant body armor.
Other items were also found in the room. At the foot of the bed, King found a shotgun inside a pool cue case, along with two 12-gauge shells wrapped in a black Ikea shopping bag. Additional small caliber ammunition was located in a drawer containing kitchen supplies. King also found approximately 170 grams of suspected cocaine base, some bindles of heroin, and some suspected marijuana in various places in the room.
Another officer searched Richardson and found a wallet containing Edwards's identification in his pants pocket.
San Francisco Police Sergeant Brian Stansbury, who investigated the case, testified that the protrusion of the barrel on each side of the revolver found in the black backpack was less than one-half inch, which he described as "a very small amount on each side of the gun" that was "not that noticeable." A records search revealed that the revolver was not owned by appellant. The owner of the shotgun was unknown.
The building's property manager, Akiko-Ariele White, testified that the building had a 24-hour functioning video surveillance system that consisted of 32 cameras throughout the building, which were constantly recording. A copy of relevant surveillance footage from December 2, 2014, was introduced into evidence at trial and played for the jury.
During closing argument, the prosecutor described, without objection, the contents of certain portions of the surveillance video while she played the video for the jury, as follows: The videotape evidence showed Richardson first leading appellant into the building, with appellant wearing the same clothing he was wearing when arrested a short time later. He had a brown do-rag on his head, a jacket "with the piping and fanciful design," light colored shoes, and a shirt with white block printing on it. His skin appeared light colored, his long hair was tied at the nape of his neck, and he had a distinctive walk. Still shots from the video offered a clear enough image of appellant's face that his facial hair was visible.
The video showed that after Richardson checked appellant in at the front desk, he led him to the third floor, where he pointed out Edwards's room; the door of the room was slightly ajar. They twice walked past Edwards's room and then went up to the fourth floor, where Richardson's room was located.
Seven minutes later, the video showed appellant coming down the stairs, checking the stairwell, and then going into Edwards's room. Appellant was now wearing a hat and purple-blue gloves. He was otherwise wearing the same clothing as when he entered the building, and his long hair could be seen, still tied at the nape of his neck. A firearm was visible in his hand. After about a minute, the video showed him leaving Edwards's room and heading back up to the fourth floor, where he was arrested a short time later, wearing the same clothing.
DISCUSSION
I. Sufficiency of the Evidence of Appellant Being
an Ex-Felon in Possession of a Firearm
Appellant contends there was insufficient evidence to support his conviction for being an ex-felon in possession of a firearm, in violation of section 29800, because there was no evidence that he in fact possessed the gun in question.
A. Trial Court Background
In count III, appellant was charged with being an ex-felon in possession of a firearm while inside Richardson's room. After he was found guilty as charged, appellant filed a motion for a new trial, in which he argued, inter alia, that the evidence was insufficient to show that he possessed the gun found in the backpack. The court rejected this claim, explaining its reasoning: "the connection throughout the testimony by various witnesses connecting the defendant to Keith Richardson, including what was seen in the surveillance video of them entering the hotel together, and the fact that [appellant] was found in Keith Richardson's room, and that both of those individuals had counterfeit money on them, and [appellant] was found near the backpack which was open with the gun in it . . . ."
B. Legal Analysis
"Substantial evidence is defined as evidence that is reasonable, credible, and of solid value. [Citation.] A reviewing court must accept logical inferences the jury might have drawn from the circumstantial evidence," so long as that inference is not " ' " 'based on suspicion alone, or on imagination, speculation, supposition, surmise conjecture, or guesswork.' " ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 (Sifuentes).) We review the trial court's ruling that substantial evidence supported appellant's conviction of being an ex-felon in possession of a firearm for an abuse of discretion. (See People v. Navarette (2003) 30 Cal.4th 458, 526.)
Possession, for purposes of being an ex-felon in possession of a firearm pursuant to § 29800, subd. (a)(1)) "may be physical or constructive, and more than one person may possess the same contraband. [Citation.] Possession may be imputed when the contraband is found in a place which is immediately accessible to the joint dominion and control of the accused and another. [Citations.]" (People v. Miranda (2011) 192 Cal.App.4th 398, 410 (Miranda).) Constructive possession can be established by circumstantial evidence and the reasonable inferences drawn therefrom. (See id. at p. 411.) However, "mere proximity to the weapon, standing alone, is not sufficient evidence of possession. [Citation.]" (Sifuentes, supra, 195 Cal.App.4th at p. 1417.)
Subdivision (a)(1) of section 29800 provides in relevant part: "Any person who has been convicted of a felony . . . and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony."
In the present case, the record reflects that appellant was found sitting alone in Richardson's room within arm's reach of a backpack containing a gun that surveillance video suggested appellant had used minutes earlier in the robbery of Edwards. The backpack was open and the gun inside was visible to Officer King after he entered the room. The backpack also contained Richardson's wallet with counterfeit money inside of the same type as was found in a wallet taken from appellant's pocket. Based on this circumstantial evidence, the jury could logically infer that appellant constructively possessed the gun at the time King entered the room. (See Sifuentes, supra, 195 Cal.App.4th at p. 1417; Miranda, supra, 192 Cal.App.4th at pp. 410-411.)
Appellant could not be convicted of violating section 29800, subd. (a)(1) based on his possession of the gun during the robbery and burglary of Edwards, of which he was also convicted. (Cf. People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408 [separate punishment for use of a firearm and possession of a firearm was not precluded by section 654 where evidence showed possession was antecedent and separate from use].)
Appellant asks us to reject the inference that the gun in the backpack was visible to him, arguing, "That the gun in the backpack was visible to Officer King, who presumably entered the room through the doorway does not lead to the conclusion that it was visible to appellant, who sat to the side of the bed on which the backpack was placed, in fact, it would suggest that appellant could not see it, as the opening of the backpack would not be facing him if King could see it when he walked in. In any event, the evidence established that Officer King opened the backpack, then found the gun, the clear import of which is that the backpack was closed."
First, King specifically testified that, when he entered the room, the backpack was open and he saw the handle of the firearm inside. Second, that the jury perhaps could have concluded instead that the gun was not the one used in the robbery and/or that appellant was not aware of the presence of the gun, does not negate the reasonableness of its inference, based on the circumstantial evidence presented at trial, that appellant constructively possessed the gun in question, whether on his own or jointly with Richardson. (See Miranda, supra, 192 Cal.App.4th at pp. 410-411 [where defendant was one of four people in car being pursued by police and officer saw unidentifiable objects, later found to be pieces of a shotgun, being thrown out of back windows of car, circumstantial evidence permitted jury to infer that defendant was aware of shotgun's presence and that he "had at least joint dominion and control over the shotgun before it was tossed out of the car window"]; People v. Williams (2009) 170 Cal.App.4th 587, 624-625 [in affirming conviction for possession of a firearm by an ex-felon, appellate court refused defendant's invitation to reweigh evidence where firearm was found under a pillow about a foot away from a computer defendant conceded was his, in a house occupied by defendant and others].)
This is not a case in which the evidence showed nothing more than appellant's "mere proximity to the weapon." (Sifuentes, supra, 195 Cal.App.4th at p. 1417.) Appellant compares this case to Sifuentes, in which the defendant was detained in a motel room where a gun was found hidden under a mattress near where another defendant was kneeling. (Id. at pp. 1414-1415.) The appellate court found that a gang expert's testimony that "aside from 'certain restrictions,' a gang gun is 'accessible' to all gang members '[a]t most times' " did not provide substantial evidence that the defendant had constructive possession of the gun, based solely on his membership in the gang and proximity to the weapon. (Id. at pp. 1415, 1417-1418.) The court found, even assuming the gun was a "gang gun" and the defendant was aware of its presence in the room, there was insufficient evidence that he had the right to control it, where there was no evidence the defendants "had used or were about to use the gun offensively or defensively," and the gang expert had not explained what the restrictions were on use of a gang gun by members of the gang. (Id. at pp. 1417-1418.) Sifuentes is plainly distinguishable from this case, in which appellant was found alone in a room, within arm's reach of a gun that was in plain sight inside an open backpack. Moreover, there was evidence that appellant had used the gun minutes earlier to commit a robbery. This evidence demonstrates more than his "mere proximity" to the gun. (Id. at p. 1417.)
Because the jury in this case could reasonably find that appellant constructively possessed the gun in question, the trial court did not abuse its discretion in concluding appellant's conviction was supported by substantial evidence. (See People v. Navarette, supra, 30 Cal.4th at p. 526; Sifuentes, supra, 195 Cal.App.4th at p. 1417.)
II. Admission of Evidence of Appellant's Possession of Counterfeit Money
Appellant contends the trial court abused its discretion when it admitted evidence that he had counterfeit money in his possession at the time of his arrest. He argues that this evidence should have been excluded as irrelevant and more prejudicial than probative.
A. Trial Court Background
Appellant moved in limine to exclude evidence of the counterfeit money found in his pocket during a search incident to his arrest, on the ground that it was not relevant to any of the charged offenses and was more prejudicial than probative, under Evidence Code section 352.
The trial court denied the motion during a pretrial hearing, explaining: "Showing that connection, of unusual—unusual currency, I think that's probative of a connection between the two individuals here. And particularly where it's located literally in the same backpack as a firearm. And there was an allegation of a firearm used in this case, and when [appellant] has the same kind of currency on him.
"Even if [Edwards] doesn't identify this money, I think the fact that it shows a connection between [appellant] and potentially the backpack or Richardson, or the gun, I think that makes it more probative than it would otherwise be. And I think the prejudicial value, although I think there is some prejudice to it, I don't think that substantially outweighs the probative value.
"As I indicated if they had found other money consistent with what was allegedly taken in the robbery, or if there wasn't this bill in Richardson's wallet, I would feel differently. But I think that shows the potential of a connection that would be relevant and probative here.
B. Legal Analysis
"Subject to certain limitations inapplicable to the present discussion, all relevant evidence is admissible [citations], and relevant evidence is defined as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citation.] Evidence is relevant if it tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citations.] The trial court has considerable discretion in determining the relevance of evidence. [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 633-634; see Evid. Code, §§ 210, 351.)
Pursuant to Evidence Code section 352, a trial court may exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review a trial court's ruling pursuant to Evidence Code section 352 under the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Appellant first argues that the evidence that appellant had counterfeit bills in his pocket at the time of his arrest was not relevant to any material fact at issue at trial and therefore should not have been admitted. We disagree. As the trial court found, the fact that appellant had the distinctive counterfeit bills in his pocket and that the same kind of bills were inside the backpack, in Richardson's wallet, provided a connection between appellant and the backpack, which contained the gun he was accused of possessing in count III. This evidence thus corroborated other evidence offered to show appellant's possession of the gun, including the fact that he was alone in the room within arm's reach of the backpack, with the gun's handle in plain sight, and the fact that appellant had been caught on video moments earlier, just before and after committing an armed robbery and burglary. The court did not abuse its discretion in finding that this evidence was relevant because it allowed the jury to reasonably infer that appellant and Richardson jointly possessed the gun that was inside the backpack, which also contained Richardson's wallet with the same type of counterfeit money found in appellant's pocket. (See People v. Williams, supra, 43 Cal.4th at pp. 633-634.)
We also reject appellant's contention that, even if the counterfeit money evidence was relevant, the trial court abused its discretion in finding that the probative value of that evidence outweighed its prejudicial effect, pursuant to Evidence Code section 352. Although the trial court did find that there was necessarily some level of prejudice in admitting evidence showing the uncharged offense of possession of counterfeit money, it further found that such prejudice was outweighed by the probative value of the evidence in demonstrating a connection between appellant and the counterfeit money in the backpack, and therefore also the gun. We agree with the court that evidence that appellant possessed counterfeit bills at or near the time he was alleged to have committed an armed robbery/burglary and to have been an ex-felon in possession of a firearm was not inflammatory compared with those charged counts. (See, e.g., People v. Sullivan (2007) 151 Cal.App.4th 524, 559, citing People v. Ewoldt (1994) 7 Cal.4th 380, 404-405 [setting forth factors relevant to weighing evidence's probative value against its prejudicial effect, including, inter alia, whether uncharged offense is more inflammatory than charged offense and whether both incidents occurred close in time].) The court therefore reasonably found that this relevant evidence was not made inadmissible by Evidence Code section 352. (See People v. Kipp, supra, 26 Cal.4th at p. 1121.)
Appellant further argues that the evidence of the counterfeit money was cumulative, under Evidence Code section 352, because there was already evidence linking appellant to Richardson, given that he was found in Richardson's room after the robbery. The relevance of the counterfeit money, however, was primarily that it linked appellant to the backpack, and hence to the gun, a connection that was disputed at trial. Hence, this evidence was not cumulative to other evidence proving that connection. (See Evid. Code, § 352.)
III. Restriction of Cross-Examination of Edwards
Appellant contends the court erred in restricting cross-examination of Edwards, the victim of the robbery and burglary.
A. Trial Court Background
Appellant brought a non-statutory motion to dismiss on the ground that police had shown Edwards a photograph of appellant before he identified appellant in a show-up, and this information had not been produced in discovery. Defense counsel also sought to exclude any in-court identification of appellant by Edwards as unconstitutionally tainted evidence.
At the hearing on the motion, the court stated that "the police conduct in this case was very, very troubling" and had tainted Edwards's identification of appellant. However, the prosecution, having "chosen to do what the court would have found appropriate because of the conduct here," i.e., to not introduce evidence related to "the photograph, the cold show, the preliminary hearing, or any inquiry identification at trial," the court did not believe there was a sufficient showing of bad faith to warrant dismissal of the charges.
Defense counsel then indicated that he wished to introduce portions of Edwards's postrobbery 911 call into evidence on the theory that the person Edwards described in the call did not match appellant's appearance. Specifically, counsel wanted to introduce Edwards's estimate of the assailant's age as 25 to 30, whereas appellant was 50 at the time of the offenses; that the assailant had a "Fu Manchu mustache," whereas appellant had a different kind of mustache; and that the assailant had extremely long sideburns, whereas appellant had no such facial hair. The prosecutor responded that she believed "the defense would be opening the door by bringing in the 911" call.
The court ruled that if, during cross-examination of Edwards, the defense were to raise discrepancies between the appearance of appellant and the descriptions he had given of the assailant, "then I think it opens the door, not to the fact of the photograph, the cold show, and the actual inquiry identification made at the preliminary hearing, but I think it does open the door to the potential of an in-court identification at the trial. . . ." The court concluded: "I think the defense has to make a determination . . . how they want to approach the identification issue. If identification is out of the entire testimony, if there is no evidence . . . coming through Edwards's identification of the defendant, then I think it all stays out. If there is examination on descriptions that he gave of what happened, what the assailant looked like, then I think that opens the door to other things he said and potentially to being asked about an inquiry identification."
At the hearing on appellant's subsequent motion for a new trial, defense counsel clarified that Edwards's conflicting description of the assailant, which he had been asking the court to admit, had occurred both in the 911 call and at the preliminary hearing. He argued that the court's ruling had forced appellant into the "Hobson's choice" of "allowing in unconstitutionally tainted evidence," i.e., Edwards's possible identification of appellant at trial, "as the cost of getting in exculpatory evidence."
The prosecutor disputed defense counsel's characterization of Edwards's description of the assailant as "grossly inconsistent, specifically to sideburns and a mustache. The defendant clearly has a mustache, and in many of the photos, he is wearing a brown d[o] rag, and the sides of the d[o] rag are down his jowls[,] making it appear as though he has sideburns."
The court rejected defense counsel's argument, reiterating its prior finding that if counsel chose to "open[] up the subject of identification by [Edwards], I thought it was appropriate under [section] 356 of the Evidence Code [the rule of completeness] to then allow the District Attorney to inquire from Edwards about aspects of the identification process . . . ." The court also agreed with the prosecutor that Edwards's descriptions were not necessarily as exculpatory as counsel said they were, "but more importantly, to have allowed testimony that he gave during the preliminary hearing about identification, or description, without then allowing the fact that he actually identified the defendant in the courtroom, within that same manner of minutes, would seem to be unfair and not warranted by the Evidence Code."
B. Legal Analysis
Appellant now argues that "the inconsistent details regarding the description of the suspect amounted to exculpatory evidence which he had a constitutional right to elicit on cross-examination of Edwards, that his proposed cross-examination did not open the door to an identification of appellant, and that defense counsel's election not to pursue" this area on cross-examination of Edwards "did not amount to a tactical choice for which appellant had no recourse."
Respondent points out that the trial court had no occasion to actually rule on the admissibility of evidence related to (1) the tainted identification, since the prosecution did not seek to admit any such evidence, and (2) the 911 call, regarding which the court stated that it had not made any findings about its admissibility. Respondent argues, moreover, that even assuming the identification was tainted and the statements from the 911 call were admissible, appellant "cites no authority for the argument that a tainted identification should result in a bar on the prosecution presenting any identification evidence while allowing the defense to selectively introduce pieces of such evidence. Thus, according to respondent, the court properly found that Evidence Code section 356's "rule of completeness" applied. (Cf. People v. Vines (2011) 51 Cal.4th 830, 859 [relied on by respondent, in which defense proposed to introduce at trial part of a witness's statement that was favorable to defendant, rule of completeness permitted prosecution to introduce other portions of statement in which witness stated that defendant was shooter].)
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
We need not decide whether appellant is correct that the trial court improperly conditioned the admissibility of Edwards's purportedly conflicting descriptions of appellant on the admission of an in-court identification of appellant. That is because, even assuming the court erred, we conclude any such error was harmless, whether under the federal constitutional standard of error argued for by appellant (Chapman v. California (1967) 386 U.S. 18, 24), or the state test of People v. Watson (1956) 46 Cal.2d 818, 836.
First, in denying the motion for a new trial, the court found merit in the prosecutor's argument that most of Edwards's challenged descriptions were not exculpatory because they were not "grossly inconsistent, specifically to sideburns and a mustache." Thus, it appears that much of appellant's proposed evidence was not as exculpatory as he claims. Moreover, to the extent the proposed evidence would have called into question the credibility of Edwards, as appellant argues, in terms of "his capacity to perceive and recall," Edwards's inability to accurately estimate the age and appearance of the assailant does not undermine or lessen the strength of other evidence of appellant's guilt, which does not depend on Edwards's description and which was extremely strong.
The surveillance cameras in the building captured appellant entering the building with Richardson, wearing the same distinctive clothing and with the same hair and walk as in subsequent recordings showing appellant and Richardson twice walking by Edwards's room before going up to the fourth floor, where Richardson's room was located. Seven minutes later, the video showed a person who appeared to be appellant— with the same clothing and hair as earlier, except for the addition of a hat and purple-blue gloves—coming down to the third floor and looking around. It then showed him entering Edwards's room, with a gun visible in his hand, leaving the room about a minute later, and going back up to the fourth floor. Appellant was arrested minutes later in Richardson's room, wearing the same clothing. In addition, there was a gun in an open backpack within arm's reach of where he was sitting.
At the hearing on appellant's motion for a new trial, the trial court also described the surveillance video as follows: "[T]he video was quite distinctive, and quite clear, and that video showing a person who clearly closely looked very much like the defendant, who was also wearing very distinctive clothing, [walking] in a distinctive manner, all of that with the fact that he was found within minutes wearing that same distinctive clothing . . . ."
Appellant argues that the portions of the surveillance video showing the assailant entering and leaving Edwards's room were not sufficiently clear to establish that that person was appellant because the details of the assailant's face and jacket were not discernible, and the gun "appeared to be an ill-defined object." However, as already discussed, the jury could reasonably have found, based on the video evidence, that the assailant had the same distinctive clothing, hair, and walk as the video evidence showed appellant to have both before and after the robbery/burglary.
We have reviewed the surveillance video evidence presented at trial, and agree with the trial court's description of what it depicted, as well as with the prosecutor's description during closing argument. The video evidence portrayed appellant and Richardson entering the building and twice walking by Edwards's room in the minutes before the robbery/burglary. Shortly thereafter, it showed a man who looked, dressed, and walked exactly like appellant entering and exiting Edwards's room, with the sole difference that this person was wearing a hat and different gloves, and had a gun in his hand.
Appellant further asserts that "[e]ven if the video showed the alleged distinctiveness of the jacket, there was no evidence presented as to just how distinctive it was, i.e., how many were sold, how readily available it was, etc." We do not find this argument persuasive; the possibility that some other individual who very closely resembled appellant was also wearing the same distinctive jacket and other identical clothing is extremely remote, to say the least.
Appellant also argues that the evidence suggested it was Richardson, not him, who was the robber, because the robber's statement, as related by Edwards, to " '[g]ive it to me,' " implied that the two knew each other; because Richardson was found in possession of Edwards's wallet; and because a gun was found in a backpack in Richardson's room. We disagree that the perpetrator's statement necessarily implied any prior acquaintance between him and Edwards. In addition, the surveillance video showed a person who appeared to be appellant, not Richardson, coming and going from Edwards's room. Moreover, Edwards, who knew Richardson, testified that Richardson was not the person who robbed him.
Finally, appellant argues that the jury's request for a read back of Edwards's testimony indicates that this was a close case. To infer a close case from this request, "in the absence of more concrete evidence would amount to sheer speculation." (People v. Walker (1995) 31 Cal.App.4th 432, 438 [rejecting defendant's assertion of a close case given where "the length of the deliberations could as easily be reconciled with the jury's conscientious performance of its civic duty, rather than its difficulty in reaching a decision"]; see also People v. Houston (2005) 130 Cal.App.4th 279, 301 ["jury's deliberation of this mass of information over the course of four days speaks only for its diligence. Its requests for the reading back of selected testimony does not necessarily indicate that this was a 'close' case"]; compare People v. Lacefield (2007) 157 Cal.App.4th 249, 262, disapproved on another ground in People v. Smith (2013) 57 Cal.4th 232, 242 [in case relied on by appellant, appellate court found that jury's request for a read back of testimony of both a prosecution witness and defense witness "who gave totally different descriptions of the incident" verified closeness of case in which each side offered plausible versions of what had occurred].)
In conclusion, given that the evidence the defense wanted to elicit on cross-examination of Edwards regarding his description of the robber was not as exculpatory as appellant claims and, more importantly, that the evidence of guilt in this case was extremely strong, appellant has not shown that the limitations placed on his cross-examination of Edwards prejudiced him under either the state or federal constitutional standard of error. (See Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.