Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC62114A
NEEDHAM, J.
Appellant Bryan McKnight was tried before a jury and convicted of several counts arising from his robbery of a convenience store and his apprehension by police the following day. He contends: (1) the evidence was insufficient to prove he was one of the robbers; (2) the court erred by admitting “unreliable, uncorroborated hearsay evidence” that one of the robbers addressed the other using a nickname similar to his own; (3) the court should have excluded evidence of a statement he made to the store clerk about an hour before the robbery; and (4) the court erroneously instructed the jury with CALCRIM No. 362, concerning false statements by a defendant showing consciousness of guilt. We affirm.
I. FACTS AND PROCEDURAL HISTORY
The One Stop Market is a family-owned convenience store located in a corner strip mall in East Palo Alto. The market has a digital surveillance system comprised of eight video cameras that operates 24 hours a day and stores the images in a computer. Appellant was a regular customer at the market.
On August 19, 2006, Joseph Salah and Mohammad Almalitti were working behind the counter at the One Stop Market. Appellant entered the store at about 6:00 p.m. and tried unsuccessfully to buy liquor. At about 10:00 p.m., appellant returned with either two or three other companions. Appellant’s left hand was bandaged. As appellant was leaving the market, he told Salah in a “cocky” manner, “You’ll be alright. You will be okay.” Both Salah and Almalitti thought the remark was strange.
The probation report indicates that appellant was 18 years old at the time of the events in this case.
About an hour later, three men entered the market carrying handguns. Their faces were covered with bandanas or face masks, their heads were covered with black beanie caps, and they were wearing dark clothes. All three were wearing gloves. The shortest robber appeared to be the same height as appellant.
One robber approached Salah, pointed a revolver in his face, attempted to search his pockets, and ordered him to lie on the ground. The other two pushed Almalitti away from the cash register and took about $1,000 in cash. They also took a bottle of cognac and a pack of cigarettes. One of the robbers told another to “hurry up” and called a name that sounded like “Bookie” or “Boo-coo.” The robbers left and Almalitti pushed the alarm to call 911. The robbery was recorded on the store’s video surveillance system.
East Palo Alto Police Department Officers Frayer and Stilwell arrived shortly after 11:00 p.m. to investigate the robbery. They watched the surveillance tapes and searched the area, but did not find any suspects or other evidence. They returned the next day at about 8:00 p.m., but did not park their patrol car in front of the market, thinking the suspects might return. The officers were behind the counter reviewing the surveillance tapes when appellant entered the store with Jonathan Bradford. Appellant was wearing baggy pants and a green jacket. He spoke to Salah and had the same smile on his face that he had the previous night before the robbery.
Salah motioned to the officers and told them that appellant and Bradford were two of the robbers from the previous night. Officer Frayer walked outside and called for more officers. Officer Stilwell made eye contact with appellant, who looked surprised to see police in the market and repeatedly glanced over at Stilwell.
At trial, neither Salah nor Almalitti could directly identify appellant as one of the robbers.
Officer Wohler arrived at the market with “police explorer” Recinos, an unarmed civilian who was participating in a training program. Bradford left the market and was detained without incident. Officers Frayer and Stillwell contacted appellant at the market’s front door and asked him for identification. They attempted to place appellant in handcuffs, but he broke free and ran to the back of the market, ignoring their orders to stop and knocking groceries off the shelves. Recinos, Stillwell and Frayer followed appellant as he ran through a hallway to a back door that was locked.
When appellant reached the locked door, Recinos grabbed him. Appellant pulled a .45 caliber silver handgun from his right hip area and pointed it at Recinos’s thigh. Frightened and believing he was about to be shot, Recinos punched the gun out of appellant’s hand. He yelled several times, “He has a gun.” Frayer tackled appellant and Stillwell grabbed his feet. Wohler ran back from the front of the store with his gun drawn and helped Frayer place appellant in handcuffs. Appellant did not stop resisting until Frayer told him he would be shot if he did not stop and show his hands.
Recinos retrieved appellant’s gun from where it had fallen on the floor. It was loaded and the safety was off. The officers searched appellant and found a spare magazine containing bullets that fit the gun, a black ski mask, a black beanie cap and $60. The officers took appellant to the police station, where he made a recorded call to his mother, who referred to him as “Bunky.”
Appellant was interviewed later that evening by Detectives Brackett and Torres. He denied robbing the One Stop Market and variously claimed that at the time of the robbery, he was on Broadway in Oakland, in a studio in Hayward, with a girl named “Raneisha,” whose last name and telephone number he did not know, and with Raneisha at his mother’s house. Appellant claimed to have found the gun, ski mask and a glove that day, though the officers had not mentioned that the robbers wore gloves and no glove was found on appellant when he was arrested. Torres mentioned that someone had called appellant’s name during the robbery and Brackett said, “Boy that sucks.” Appellant responded, “Yeah that do.” Asked what his nickname is, appellant responded, “You all know my nickname.” Neither officer mentioned what the nickname is, but appellant suggested “there was more than one person . . . named Bunky. . . in East Palo Alto.”
Following a jury trial, appellant was convicted of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), assault with a semi-automatic handgun with a firearm use enhancement allegation (§§ 245, subd. (b), 12022.5, subd. (a)), resisting a peace officer (§ 148, subd. (a)(1)) and carrying a loaded firearm in public (§ 12031, subd. (a)(1).) He was sentenced to prison for an aggregate term of twelve years: the six-year middle term on the assault count plus the four-year middle term for the accompanying firearm enhancement, plus consecutive one-year terms (one-third the middle term pursuant to section 1170.1, subd. (a)) for each of the robbery counts.
Statutory references are to the Penal Code unless otherwise indicated.
II. DISCUSSION
A. Sufficiency of the Evidence on Robbery Counts
Appellant argues that his two robbery convictions must be reversed because the evidence was insufficient to establish his identity as one of the masked robbers. We disagree.
Our standard of review is well established and deferential. We consider whether, viewing the record in the light most favorable to the judgment, there is substantial evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Combs (2004) 34 Cal.4th 821, 849; Jackson v. Virginia (1979) 443 U.S. 307, 319.) The verdict must be upheld when circumstantial evidence justifies the jury’s findings, even if the circumstances might be reasonably reconciled with a contrary result. (People v. Earp (1999) 20 Cal.4th 826, 887.) Conflicting evidence does not establish that the evidence on one side or the other was insufficient. (People v. Hinton (2006) 37 Cal.4th 839, 885.)
In this case, the circumstantial evidence of identity was strong. Appellant had entered the market twice during the evening of the robbery, telling the clerk for no apparent reason, “You’ll be alright. You will be okay.” The robbery took place within an hour of this comment. Although the robbers’ faces were concealed, one of them was the same height and race as appellant. One of the robbers referred to another by a name that sounded similar to appellant’s nickname. When appellant entered the market the next evening and was confronted by officers, he resisted their efforts to detain him and attempted to flee. He was at that time carrying a loaded handgun, a mask and a beanie cap, the same type of items that were used in the robbery. And, though the detectives who interviewed him did not mention that the robbers had been wearing gloves, appellant volunteered that he had found a glove earlier that day (along with the gun, mask and beanie that had been discovered on his person at the time of his arrest). Appellant claimed to have been in several different places at the time of the robbery, including his mother’s house, yet he called no alibi witness.
From this evidence, the jury could reasonably conclude that appellant was one of the men who committed the robbery. Though appellant points to the absence of direct eyewitness identification, to a lack of forensic evidence, and to witness Salah’s acknowledgment that he didn’t hear the name “Bunky,” but only a name that sounded like “Bookie” or “Boo-coo,” none of these circumstances rendered the evidence of guilt insufficient to support the verdict.
B. Evidence of Name Used by One Masked Robber
Appellant’s nickname is “Bunky,” as was established by his mother’s use of that name when he telephoned her from the police station, and by his own reference to that name during his interview with Detectives Brackett and Torres. Over defense objection, the prosecution elicited testimony by store clerk Salah that one of the masked robbers had addressed another using a name that sounded like “Bookie” or “Boo-coo.” Salah also acknowledged that at the preliminary hearing, he had testified that the name used sounded similar to “Bunky,” although during cross-examination, he clarified that he did not hear the actual word “Bunky.” Appellant contends the robber’s statement was hearsay that should have been excluded. We disagree.
An out-of-court statement offered to prove the truth of the matter asserted is inadmissible hearsay unless it falls within a recognized exception to the hearsay rule. (Evid. Code, § 1200.) When the fact that a statement was made is relevant regardless of its truth or falsity, it falls outside the hearsay rule. (People v. Freeman (1971) 20 Cal.App.3d 488, 492.) A statement by one person addressing another by name, like other utterances serving to identify an individual, are admissible as circumstantial evidence of identification. (Ibid.; citing 6 Wigmore on Evidence (3d ed.) p. 240.) Here, the robber’s statement of his cohort’s name was not offered to prove its truth, but as circumstantial evidence that one of the robbers had a name that sounded like “Bookie’ or “Boo-coo.”
Even if the trial court erred in admitting evidence of the robber’s statement, it is not reasonably probable that exclusion of the challenged testimony would have resulted in a more favorable verdict for appellant. (People v. Watson (1956) 46 Cal.2d 818, 836.) As discussed in the preceding section, considerable circumstantial evidence supported the conclusion that appellant was one of the robbers. The name used by the unidentified robber was not identical to appellant’s nickname, and while its similarity to that nickname made it probative, it was not such a significant piece of evidence that its omission would have changed the result of the trial.
C. Admissibility of Appellant’s Statement to Salah that He Would “Be Alright”
Appellant argues that the court should have excluded evidence that about an hour before the robbery, he told Salah, “You’ll be alright.” He claims this statement was irrelevant because it “had no readily discernible meaning.” We reject the claim.
Evidence is relevant so long as it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Trial judges are vested with broad discretion when determining the admissibility of evidence, particularly where the question is one of relevancy. (People v. Ortiz (1995) 38 Cal.App.4th 377, 386 (Ortiz).)
The statement by appellant to Salah was a party admission under Evidence Code section 1220. It was highly relevant, because it suggested that appellant knew something was about to happen that might lead Salah to believe he was in harm’s way. This in turn suggested that appellant was involved in the armed robbery that took place about an hour later. The court did not abuse its discretion by admitting the statement. (Ortiz, supra, 38 Cal.App.4th at p. 386.)
D. CALCRIM No. 362
Over defense objection, the court instructed the jury with CALCRIM No. 362 regarding false statements by a defendant: “If the defendant made a false or misleading statement relating to the charged crimes, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crimes and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot . . . prove guilt by itself.” Appellant argues that the instruction was unsupported because there was no evidence permitting an inference that he made statements showing a consciousness of guilt. We disagree.
As the trial court noted, appellant gave conflicting statements to detectives regarding his whereabouts at the time of the robbery, and he failed to produce any alibi witnesses, even though one of his alibis was his mother. This supports an inference that appellant was being evasive or untruthful when he claimed to be in various locations when the robbery was taking place. Moreover, the instruction did not require the jury to infer a consciousness of guilt. It was actually helpful to the defense to the extent it advised that an untruthful statement could not itself prove guilt of the crimes. (See People v. Howard (2008) 42 Cal.4th 1000, 1021; People v. McGowan (2008) 160 Cal.App.4th 1099, 1104.)
DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., DONDERO, J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.