Opinion
B194972
4-23-2008
THE PEOPLE, Plaintiff and Respondent, v. KEVIN HILL, Defendant and Appellant.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Following a jury trial, appellant Kevin Hill was convicted of second degree robbery while personally using a firearm (count 1), and possession of a firearm by a felon (count 2). At bifurcated proceedings, the court found true 11 prior strike offenses. Appellant was sentenced under the "Three Strikes" law to 45 years to life in prison.
Appellant contends: (1) The trial court violated his constitutional rights to due process and a fair trial when it admitted evidence of a prior robbery that he committed at the same location 12 years earlier. (2) The trial court erred in instructing the jury that the prior robbery could be considered for the issues of intent and common plan in addition to identity.
We find no error and affirm.
FACTS
1. Prosecution Testimony
Between 4:00 and 6:00 p.m. on July 6, 2003, Timothy Alexander was working behind the counter of the Greyhound bus station in North Hollywood. He was the only employee present at that time.
As Alexander sold tickets to two customers, two African-American men entered the station. They wore hats and used handkerchiefs to mask their faces. One of them held a handgun. The gunman told the customers not to move. He pointed the gun at Alexander and commanded him to stand up and move against the wall. Alexander complied. Alexander was a large man. He noticed that when he stood up, the robbers opened their eyes wide, as if surprised at his size.
The gunman kept his gun on Alexander while his companion took the money from the drawer of the cash register. The gunman told Alexander that he knew there was a safe at the back of the station. He ordered Alexander to walk back to the safe with him. Alexander knew he could not open the safe. He feared that if he walked to it with the gunman, he would be shot. He decided that if he was going to be shot, it would be on his own terms. He grabbed the gunmans arm and reached for the gun. They shoved each other and struggled for the weapon. The gunmans companion ran from the store. Alexander gained possession of the gun and hit the gunman in the head with it several times. The gun fell to the floor. Alexander reached for it. The gunman ran from the store with his head bleeding. He left behind his hat, a trail of blood, the bloody gun, and a partial palm print.
The gunmans knowledge of the location of the safe was important to the ruling on the admissibility of the prior robbery.
At the trial, Alexander at first testified that he would not be able to recognize either of the robbers, as he focused on the gun. The lunch break occurred at that point. When proceedings resumed, Alexander testified that when the mornings proceedings ended, he looked carefully at appellant and realized that appellant was the gunman. Alexander immediately reported that fact to the prosecutor and detective. He had looked the gunman "square[ly] in the eye" during the robbery, and the gunmans hat and mask came off during the struggle for the gun. He was sure of his identification, even though he had not previously identified appellant.
In addition to Alexanders testimony, the prosecution established that the partial palm print at the crime scene matched appellants palm print. The prosecution also presented two different DNA analysts, who separately concluded that the DNA in blood at the crime scene, including blood on the gun, matched appellants DNA.
Finally, the prosecution presented evidence that, 12 years earlier, appellant and another African-American man committed an armed robbery at the same location during which they obtained money from the safe at the back.
2. Defense Testimony
A defense expert questioned the conclusions of the prosecutions DNA witnesses.
DISCUSSION
1. Evidence of the Prior Robbery
With certain exceptions, evidence of a persons character, including specific instances of prior conduct, "is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) Such evidence is admissible "when relevant to prove some fact (such as . . . intent, . . . plan, . . . [or] identity . . .) other than his or her disposition to commit such an act." (Id., subd. (b) (section 1101(b)); see also People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt ); People v. Balcom (1994) 7 Cal.4th 414, 422 (Balcom).) Even if it is relevant, evidence of uncharged misconduct should be excluded if its probative value is outweighed by the risk of prejudice. (Ewoldt, at p. 404; see also Balcom, at p. 422.)
Appellant contends the evidence that he robbed the same location 12 years earlier was improperly admitted, in violation of his constitutional rights to due process and a fair trial.
A. The Record
i. The Pretrial Ruling
This appeal is from appellants second trial. The same judge and counsel participated at both trials. The first one ended with a mistrial after the jury deadlocked. There was no evidence of the prior robbery at the first trial. Another difference between the trials was that Alexander, the robbery victim, did not testify at the first trial and did not identify appellant there. The prosecutor relied at the first trial on the testimony of a customer who was in the station during the robbery.
The issue of admitting evidence of the prior robbery was discussed at a pretrial hearing before the second trial. The prosecutor had filed a motion to admit the evidence pursuant to section 1101(b). Defense counsel objected on numerous grounds including that the photo lineup was no longer available, he had been given only an old police report about it, he did not know if the victim could still be located, time would be wasted, the prior crime was not relevant to the charged robbery, and there would be undue prejudice since the jurors would believe the same person who committed the robbery in 1991 most likely committed the robbery in 2003. Defense counsel also argued that the prior robbery should be excluded under Evidence Code section 352, since the Peoples case rested primarily on DNA evidence, the civilian witness, and palm prints, and the probative value of the prior robbery was outweighed by the risk of prejudice.
The prosecutor replied that there was no issue over whether appellant actually committed the prior robbery, since he pled no contest to it. Both sides had the same materials about the 1991 offense, which included a recent report in which the detective asked the victim what she remembered about that offense. No evidence would be presented regarding appellants numerous other prior robberies.
The trial court then gave these reasons for admitting the evidence:
"THE COURT: Well, to me its highly relevant. Identity was certainly an issue in this case [at the first trial] as well as potentially intent, plan or scheme, particularly identity. And the crime that the People seek to introduce is strikingly similar which is the test, I guess, under Ewolt [Ewoldt, supra, 7 Cal.4th 380] and cases thereafter that, it has to have the highest degree of similarity in order to be introduced for the purpose of I.D. [¶] This is a robbery with another male companion, there was a use of a handgun, its the exact same location. [¶] In that prior case, the defendant orders the employee, the victim, into the back room where the safe is located. The only difference with this robbery is that the defendant apparently knew there was a safe in the back room which [knowledge] he would have gained from having robbed that Greyhound bus station in 91. [¶] There is a long period of delay, but the cases say that is determined case by case. And in this instance he was sentenced to 20 years in state prison. So to me the delay is not of any import because there is an obvious reason for the delay, he was in state prison. [¶] The prior is not more inflammatory than the present offense. He was convicted on that charge, so there is no issue as to whether or not he is guilty or not of that offense. [¶] Its not unduly time consuming. I think were talking about one witness, arent we?
The court also refused to exclude the evidence under Evidence Code section 352. It saw no risk of bolstering a weak case with strong other crimes evidence, since the evidence had been strong at the first trial, "even though [the jury] hung 11 to one for guilt." The present and prior robberies were extremely similar, as they involved the same modus operandi at the same location, and the prior robbery was needed because identity was disputed, which meant it was important to show how appellant knew there was a safe in the back of the station.
ii. Use of the Prior Robbery During the Trial
The prosecutors summary of likely evidence during opening statement referred briefly to the prior robbery as one more piece of evidence that would help in the identification of appellant. Defense counsel mainly discussed other facts but also mentioned that appellants commission of the 1991 robbery did not mean he also committed the 2003 robbery.
Before Minnie Watley-Ward testified, the prosecutor requested judicial notice of appellants conviction for the prior robbery. Defense counsel again argued that the evidence should be excluded under Evidence Code sections 1101 and 352. He further contended that admission of the evidence would violate his right to confront and cross-examine witnesses under the Fifth and Sixth Amendments and his rights to due process of law on both federal and state grounds. The trial court refused to relitigate the issue and agreed to take judicial notice of the abstract of judgment of the 1991 robbery.
In view of that extremely thorough objection, we reject respondents suggestion that the constitutional issue was waived.
Ward then testified that on August 21, 1991, she was the ticket clerk at the Greyhound bus station. A coworker was also there at that time. Two African-American men came in. Both of them held handguns. One of them was appellant. He pointed his gun at Ward and her coworker and demanded money. His confederate pulled the drawers open and put the trays on top of the counter. Appellant grabbed the dollar bills and said, "I know you have more money than this." Wards coworker said, "Theres a safe in the back." Appellants confederate put his gun at Wards head and walked with her to the safe at the back of the station. She knew how to open it. She gave appellants confederate the money from the safe and returned with him to the front of the station. Appellant was still there, with his gun trained on the other employee. He and his confederate then left.
Ward further testified that she identified appellant when she went to court on the 1991 robbery. The court then took judicial notice that "a person by the name of Kevin Hill in . . . Superior Court case number PA007739 was convicted on October 7th of 1991 of a violation of Penal Code section 211, robbery in the second degree, and admitted a personal use allegation of a firearm pursuant to Penal Code section 12022.5 of that crime[,] and that this count that he was convicted of pertained to a second degree robbery that was committed on or about August 21st, 1991 from the presence of a victim by the name of Minnie Ward."
The trial courts final instructions indicated that the prior robbery could be used for the issues of identity, common plan, or intent.
The specific instruction, a modified form of CALCRIM No. 375, stated: "The People presented evidence that the defendant committed another offense, the offense of Robbery in the second degree that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the (uncharged offense[s]/act[s]), you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant was the person who committed the offense[s] alleged in this case; or [¶] The defendant acted with the specific intent which is a necessary element of the crime charged in Count 1; or [¶] The defendant had a plan in the commission of an offense similar to the method, or plan used in the commission of the offense in this case; [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the offenses charged in Count 1. The People must still prove each element of every charge beyond a reasonable doubt."
During final argument, the prosecutor emphasized that Alexanders identification of appellant was sufficient, standing alone, to justify a guilty verdict. There also was the palm print identification and DNA evidence from two different criminalists, who indicated that appellants blood was on the counter, the floor, and the gun. The jurors could, if they chose, disregard the DNA evidence altogether and still convict appellant. In addition, Wards testimony about the 1991 robbery could be used for the issues of intent, common plan, and identity, since appellant targeted the same victim (the Greyhound bus station), committed both crimes with a coconspirator, pointed firearms both times, and attempted to obtain money from the safe in the back of the station in 2003, using the knowledge of the safe that he obtained during the 1991 robbery.
Defense counsels argument was primarily an attack on the DNA evidence. Concerning the prior robbery, defense counsel said:
"What about Minnie Ward, the victim from 1991? Why was that witness presented to you? Its very interesting. [¶] The prosecution presented you with a witness, a victim from a 1991 incident that knows nothing about this case, has no idea whether or not Mr. Hill did this stuff or didnt do this stuff. Why is that? [¶] You can couch it in any terms you want. The reality is that the prosecutor wants you to assume that if a person has done something bad in the past, they must have done it again now. Thats what they want you to assume. Its a natural way to think, perhaps. [¶] But Ms. Ward didnt tell you anything about this case. She didnt know anything about this case. Theyre hoping that you are not going to be able to do your duty and that you are going to assume, well, a person came in, Mr. Hill did something bad in 91, must have done it again in 2003. Lets try not to assume."
B. Analysis
To be admissible to prove intent on the charged offense, the uncharged misconduct must be sufficiently similar to support an inference that the defendant probably harbored the same intent on both occasions. (Ewoldt, supra, 7 Cal.4th at p. 402.) A greater degree of similarity is required to prove common design or plan. For that issue, "the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Id. at p. 403.) The greatest degree of similarity is required to prove identity. "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts." (Ibid.)
"On appeal, the trial courts determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion." (People v. Kipp (1998) 18 Cal.4th 349, 369.)
Appellant argues that evidence of the prior robbery was improperly admitted because it did not share enough unusual distinctive characteristics with the charged robbery and was too remote from it in time. He also argues that the only material issue was identity, so the prior crime should not have been admitted on the issues of intent and common plan.
We find that evidence of the prior robbery was clearly appropriate on the contested issue of identity, since as to both robberies, appellant appeared at the same location with one confederate, used a gun to demand the money from the cash register, and obtained or attempted to obtain money from the safe in the back of the station. His knowledge of the location of the safe was a particularly distinctive aspect of the charged crime, since that fact was not something that every robber would know. For the reasons specified in the trial courts extremely careful analysis, we further find that the probative value of the evidence was not outweighed by prejudice for the issue of identity.
For the issue of common design or plan, evidence of a prior robbery is usually not admissible in a robbery case unless there were sufficient distinctive features to establish identity. (Ewoldt, supra, 7 Cal.4th at p. 406.) There were such unusual distinctive features here including robbing the same Greyhound bus station twice and asking for the safe in the back of the station. Those similarities supported the inference that the charged offense was committed pursuant to a common plan. The probative value of the uncharged crime evidence was strong since it came from an independent source and its potential for prejudice was reduced by the facts, it was no more inflammatory than the charged crime, and the jury knew it resulted in a conviction. We therefore conclude that the prior robbery was properly introduced on the issue of common plan under Ewoldt, at pages 393, 404, and 408, and Balcom, supra, 7 Cal.4th at pages 422-427.
Use of the prior robbery for the issue of intent presents a more complicated question. The People have the burden to prove intent, but the intent of a defendant who points a gun at a victim and demands money cannot reasonably be disputed. Therefore, evidence of a prior robbery is ordinarily inadmissible for the purpose of intent because its probative value is outweighed by the risk of prejudice under Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at p. 406; see also Balcolm, supra, 7 Cal.4th at pp. 422-423; People v. Roldan (2005) 35 Cal.4th 646, 705.)
Although it was error to admit the prior robbery for the issue of intent, the error caused no prejudice for these reasons: (1) the evidence was properly admitted on the issues of identity and common plan, which required greater commonality than intent; and (2) there was overwhelming evidence of guilt, irrespective of the evidence of the prior robbery, through the combination of the victims identification of appellant and the presence of appellants palm print and blood at the scene of the crime. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Malone (1988) 47 Cal.3d 1, 22.)
We further find no violation of federal due process of law through admission of the prior robbery evidence. (See Estelle v. McGuire (1991) 502 U.S. 62, 70.)
2. Instructional Error
Appellant also contends that, even if the prior robbery evidence was properly admitted on the issue of identity, the instruction on that evidence was erroneous because it also permitted use of the evidence on the issues of common plan and intent. For the reasons stated in our discussion of the previous issue, we find no error in instructing that the evidence could be used for common plan and no prejudice from the error in instructing that the evidence could be used for intent.
DISPOSITION
The judgment is affirmed.
We concur:
RUBIN, Acting P. J.
EGERTON, J.