Opinion
H046686
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK PHILLIP MORRIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS170353A, SS140021A, SS141435A)
I. INTRODUCTION
In 2014, in case No. SS140021A, defendant Mark Phillip Morris was convicted by plea of vandalism (Pen. Code, § 594, subd. (b)(1)). In case No. SS141435A, he was convicted by plea of second degree burglary (§ 459). Defendant was placed on probation in each case.
All further statutory references are to the Penal Code unless otherwise indicated.
In 2018, in case No. SS170353A, a jury convicted defendant of the following six counts: attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a)), second degree robbery (§ 211), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), possession of a firearm by a felon (§ 29800, subd. (a)), discharging a firearm with gross negligence (§ 246.3, subd. (a)), and possession of ammunition by a felon (§ 30305, subd. (a)(1)). The jury found true the allegations that defendant personally used a firearm in the commission of the attempted murder, robbery, and dissuasion counts (§ 12022.5, subd. (a)), that he personally and intentionally discharged a firearm and caused great bodily injury in the commission of the attempted murder and robbery counts (§§ 12022.53, subds. (b), (c), & (d)), and that he personally inflicted great bodily injury in the commission of discharging a firearm with gross negligence (§ 12022.7, subd. (a)).
The trial court found defendant in violation of probation in each of the two probation cases (Nos. SS140021A & SS141435A). At a combined sentencing hearing in the two probation cases and the attempted murder case (No. SS170353A), the trial court sentenced defendant to an indeterminate prison term of 40 years to life, consecutive to a determinate term of five years.
On appeal, defendant does not raise any issue in the two probation cases (Nos. SS140021A & SS141435A). In the attempted murder case (No. SS170353A), defendant contends that his trial counsel rendered ineffective assistance by failing to object on five occasions to trial testimony by the police detective who investigated the case.
For reasons that we will explain, we will affirm the judgment but order clerical errors in the abstract of judgment corrected.
II. FACTUAL AND PROCEDURAL BACKGROUND
In case No. SS170353A, defendant was charged by first amended information with attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a), 189; count 1), second degree robbery (§ 211; count 2), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 3), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4); shooting at an inhabited dwelling (§ 246; count 5), and possession of ammunition by a felon (§ 30305, subd. (a)(1); count 6). The information further alleged that defendant personally used a firearm in the commission of the attempted murder, robbery, and dissuasion counts (counts 1-3) (§ 12022.5, subd. (a)), that he personally and intentionally discharged a firearm and caused great bodily injury in the commission of the attempted murder, robbery, and shooting at an inhabited dwelling counts (counts 1, 2 & 5) (§§ 12022.53, subds. (b), (c), & (d)), and that he personally inflicted great bodily injury in the commission of shooting at an inhabited dwelling (count 5) (§ 12022.7, subd. (a)).
The prosecution's theory of the case was that defendant used a firearm to rob a store, and that he committed the other charged crimes in the process. The defense did not dispute that the crimes occurred but disputed that defendant was the robber.
A. The Prosecution's Case-in-Chief
1. The robbery
On January 3, 2017, about 7:30 p.m., a robber with a revolver walked into a market and liquor store. He was wearing a bandana over his face with his eyes exposed. The bandana was black, or dark blue, with a white pattern on it. The robber had a gray and black beanie on his head with a hoodie over it. He also wore white gloves.
The store owner and two employees were present. The robber pointed the gun at the store owner and told him to empty the registers. The owner gave the robber the money from the registers. The robber stated words to the effect of, "Don't follow me or else," or "I'll blow you up." He also waived the gun and asked one of the employees what she was "looking at." The robber spoke English without an accent.
The store owner and the two employees testified that the robber was about five feet nine or ten inches tall. He appeared to be Hispanic, light skinned, in his mid-20s, and about 190 pounds.
One of the employees reported to the police that the robber was six feet tall.
After the robber exited the store, the owner grabbed his own .380 semiautomatic pistol and went after the robber. As soon as the owner exited the store, the robber shot twice at the owner.
The store was on the corner of East Market Street. The robber ran down East Market Street towards Kenneth Avenue. The store owner ran after the robber, who turned around and shot four times at the owner. The owner fired back. The robber continued running and took a right on Kenneth Avenue. When the owner got to the corner of Market and Kenneth, he did not see the robber, so he walked back to the store.
The store had video surveillance that recorded events inside and outside of the store. Videos of the robbery from different cameras at the store were played for the jury.
Around 7:35 to 7:37 p.m., a man who lived on Kenneth Avenue saw a male run by on the sidewalk. The resident did not notice a bandana or white gloves on the male. The running male covered his face with one arm and held a pistol in his other hand.
A round that had been fired by the robber penetrated the wall of a trailer that was near the store. The round struck a resident of the trailer in the shoulder, fracturing his bones.
2. The investigation
After the robbery, one of the store employees found a car key and key fob that the robber had dropped at the store. A responding Salinas police officer was able to use the key fob to activate the lights on a Toyota Camry parked on Kenneth Avenue. The vehicle was about 50 to 100 yards from the store and about 250 to 300 feet from the Kenneth Avenue residence of the man who saw someone run by with a gun. The police had the vehicle towed and secured at an evidence yard that night. The police eventually determined that the vehicle was associated with defendant.
Defendant is a "light complected" Hispanic male. He is five feet nine inches tall. At the time of the robbery, defendant was 25 years old and weighed approximately 170 pounds.
On January 4, 2017, the morning after the robbery, the police received two voicemails from defendant reporting his car stolen. Recordings of both voicemails were admitted into evidence. In the first voicemail, defendant reported that a vehicle had been stolen, and he provided the police with his contact number. In the second voicemail, defendant indicated that he was with his girlfriend, that he left his car running outside while he went inside, and that his car was gone when he came back outside.
Arlene Currier, a now-retired Salinas police detective, was assigned to investigate the robbery. Currier testified that a "common cover-up" of a crime is to report the car stolen. Currier called defendant on January 4, 2017, to get more information about his stolen vehicle report. At the time, Currier knew that the police already had the car. A recording of Currier's call with defendant was played for the jury. Defendant indicated to Currier that his girlfriend left the car running in front of her residence the prior evening, that she ran inside for a few minutes, and that the car was missing when she came back outside.
On January 5, 2017, two days after the robbery, the county probation department searched defendant's residence. Defendant had approximately 10 or 11 white gloves, which looked like work utility gloves, in his bedroom. Pictures of the gloves were admitted into evidence.
Also on January 5, 2017, Currier searched defendant's Toyota Camry that the police had located and secured. Currier looked for indicators that the vehicle had been stolen, such as broken windows, wires next to the ignition that have been manipulated in some way, items such as the stereo or speakers stripped from the vehicle, or the vehicle having been wiped down. Stolen vehicles are also abandoned in remote locations and might be burned. Defendant's vehicle looked "undisturbed" with "[n]o signs of tampering."
The driver's side door had an armrest that included a button for locking and unlocking the car. The driver's window was down about seven to eight inches. The front passenger's window was down about an inch, and the two back windows were closed.
The following items were found in defendant's vehicle. One white glove was under the driver's seat, and a second white glove was in between the front passenger's seat and the middle console. Currier testified that the gloves were "very similar to the ones that were seen in the video" that the robber was wearing and the ones that defendant had at his home. There were also several white gloves on the rear floorboard of the car. Pictures of the gloves from the car were admitted into evidence.
Under the front passenger seat was a black and gray beanie, which Currier testified "matched the beanie that the robber was wearing" as shown in the surveillance video and as described by some of the victims. Currier testified that it was raining the night of the robbery, and that the beanie was "damp to the touch." The two gloves under the driver's seat and next to the front passenger's seat were not wet, however.
On the passenger side floorboard, there was a backpack with the comic character "Deadpool" on it. Inside the backpack were two boxes of cartridges that were "compatible with a .44 Magnum revolver." One box contained 46 American Eagle brand bullets. Defendant's fingerprint was on a plastic tray inside the box. The second box contained five Sig Sauer brand bullets. It is possible to "mix and match the rounds" from the two different boxes in a revolver.
A black ski mask was on the rear passenger floorboard. Currier did not believe the ski mask had anything to do with the robbery.
DNA testing was conducted on the two gloves that were found under the driver's seat and next to the passenger seat and on the beanie. All the items had DNA from more than one person. There was "strong support" or "very strong support" that defendant was a contributor to the DNA mixture on each item.
The police did not find the firearm used in the robbery.
Cell phone records reflect that there were no phone calls on defendant's phone at the time of the robbery. However, four calls on defendant's phone before and after the robbery at 7:16, 7:49, 8:03, and 8:07 p.m. were possibly made in the vicinity of the store.
Defendant was scheduled to work on January 2 through 4, 2017, but he did show up until January 5, 2017. In his position, defendant performed general labor, which required him to wear gloves. His employer "routinely issue[d]" white gloves to employees.
Defendant had told Currier that his girlfriend was driving his car prior to it being stolen. On January 31, 2017, Currier spoke to defendant's girlfriend at the police department to determine whether the car was stolen.
Defendant was booked at the county jail for this case on February 23, 2017. A recording of a February 23, 2017 jail call between defendant and his girlfriend was admitted into evidence. Defendant told his girlfriend that the detective had interviewed him and informed him that he was going to be charged in connection with the robbery of a store. Defendant asked his girlfriend what she had told the detective, because the detective stated to him that the girlfriend admitted the car wasn't stolen from her house and that they had filed a false report. The girlfriend repeatedly insisted to defendant that she told the detective "nothing." At one point, defendant responded to his girlfriend by stating, "Well, you better not of."
A recording of a March 9, 2017 jail call between defendant and his sister was admitted into evidence. During the call, defendant and his sister discussed money. Defendant also told his sister that she was the "only one" that "can make moves for [him]." He directed her to "tell Fernando . . . to wash the baby." Defendant stated that he had gotten "some blood on it," that he "d[id]n't want that blood on there," and that Fernando could buy it from him.
In a recording of a July 8, 2018 jail call that was admitted into evidence, defendant told his girlfriend, "I know everything that happened, I know where I'm at," "I know why I'm here and it is what it is," and "I accept that." He told her that he was probably never getting out, and that he hoped she found someone who would take care of her.
B. The Defense Case
1. Defendant's sister
Defendant's sister, who is four years younger than defendant, testified that she is a heroin and "crystal meth" addict.
Defendant's sister testified that she stole the Deadpool backpack sometime between Christmas and New Year's Day, 2017, with the hope that there was something in it that she could "turn in for cash." After taking the backpack, she ran and called defendant to pick her up. She handed defendant the contents of the backpack, which included a box of bullets. He opened the box and took out a bullet. They eventually put all the items back in the backpack and left the backpack in the car.
Defendant's sister testified that she asked defendant on the day of the robbery to return clothes that she had stolen from JCPenney's, so that she could get a gift card that she could cash in. Defendant's sister admitted that she routinely stole from stores and made fraudulent returns to support her drug habit. She had four convictions between January and June 2017 for shoplifting at other stores.
Defendant's sister testified that defendant returned the items in the late afternoon or evening. Defendant then drove with his sister in the Camry to his girlfriend's parent's apartment. Among others at the apartment were the girlfriend's two brothers, Julio and Fernando.
Defendant's sister testified that her brother is an alcoholic, and she believed he had been drinking that day. She testified that defendant fell asleep on the sofa at the apartment. She took the Toyota car keys and left with Julio and Fernando, with Fernando driving to buy beer. Defendant's sister testified that she couldn't remember exactly where they parked, but she believed it was on the side of the liquor store. Upon parking, defendant's sister and Julio "smoked heroin and crystal meth" and "got high."
Defendant's sister eventually exited the car. The engine was off, and she did not know where the keys were. When she returned to the apartment, defendant was there but not Julio or Fernando. Defendant's sister told defendant that she had left the car and didn't know where the keys were. Defendant was angry but "he tried to make it better." Defendant's sister testified that they "ma[d]e up a plan" to tell their mother that the car was stolen so that their mother "wouldn't kick [defendant's sister] out." Defendant's sister testified that she had taken the car before, and that her mother "was basically going to be over [her] and everything that [she] ha[d] done throughout the past couple [of] years."
Defendant's sister testified that she knew the area where the car had been left, but she did not try to get the car. She and defendant, his girlfriend, and his children got a ride home after 11:00 p.m. that night. The next morning defendant told their mother about the car.
Defendant's sister testified that she was not honest about what happened on January 3 with the investigator for defendant's prior counsel because she didn't think he was going to believe her. She knew defendant was being charged with attempted murder and robbery, and the prior defense investigator had asked her to help. She testified that when she spoke with the prior defense investigator, she "made up" most of what she told him, including conversations and events that didn't actually happen. She did not tell the prior investigator that she had taken the car the night of the incident. She also told the prior investigator a "false story" about her boyfriend, rather than her, stealing the backpack.
Defendant's sister testified that the first time she told the truth about what happened on January 3, was a few months before defendant's trial when she spoke to an investigator from the office of defendant's current trial counsel. She testified that she told the truth to the current defense investigator because she was "clearheaded." She was in jail at the time and had been "about 30 days clean." Defendant's sister testified that, because she hadn't told anyone about what she had done, defendant "would be facing a sentence for a crime he did not commit." She testified that there was a possibility she was in "legal trouble" for her testimony at defendant's trial.
Defendant's sister loved her brother but denied that she would lie for him in a "serious situation." She also wouldn't lie for him if it meant going to jail because it would mean she would have to go "through another detox once again" and she "c[ould]n't do that."
Defendant's sister admitted that she was a liar, had a "character for dishonesty" and had no credibility, but that the jury should believe her testimony because it was the "truth."
Defendant's sister admitted that she had spoken to defendant about this case. She denied that he had asked her during a March 9, 2017 jail call to get rid of evidence for him. She testified that she didn't know what he meant when he told her to "wash the baby," and she denied that she was "the only one who can make moves for" him. Defendant's sister testified that she "was just entertaining his phone call so he didn't get angry or upset" while he was in custody.
Defendant's sister admitted that, during a March 9, 2017 jail call, defendant talked to her "about bringing drugs in the facility." She testified that she "was entertaining him," meaning she was saying "yeah, yeah, sure," but that she "wasn't contemplating doing it."
A recording of a May 19, 2018 jail call between defendant and his sister was played for the jury. She told him not to worry about her, and that she "wrote out a whole plan while [she] was in there." Defendant responded, "Alright," and later stated that he was glad that she was "out." At trial, defendant's sister testified that the "plan" she had written was a plan for her "to stay clean," not a plan to help defendant. She testified that "[i]t was right after [she] had been released from jail."
2. Defendant
In January 2017, defendant was living with his mother. The Toyota Camry that he drove was registered and insured through his mother.
Defendant denied committing a robbery at the store in January 2017. Defendant testified that on January 3, 2017, he went to his girlfriend's parents' residence in the afternoon. According to defendant, he is an alcoholic, and he was drinking that day, including at the residence. After receiving a call from his sister, defendant met her at the mall to return clothes that she had stolen. He knew he was committing a crime, but he did it anyway because his sister needed money.
Defendant testified that his sister brought along the Deadpool backpack and that that was first time he had seen it. His sister told him that she had stolen it and that she needed money. Defendant looked through the items in the backpack. He opened the two boxes of bullets to see how many bullets were in each box.
Defendant and his sister then drove back to his girlfriend's parents' residence. Defendant testified that he put his keys on a table and fell asleep on the couch around 6:00 p.m. When he woke up, his keys were gone, as were his sister, Julio, and Fernando. Defendant tried to call his sister, but she didn't answer. A "[s]hort time later," his sister came back the apartment, looking pale and acting "very irate, emotional," and "[s]tressed out." She did not have the car or the keys.
Defendant testified that he went to look for the car where his sister had said she left it. He walked toward the liquor store and saw a police car parked next to his car. Defendant walked by the car but could not determine what was going on. He did not want to talk to the police officers. Defendant eventually walked back to his girlfriend's parents' residence. His sister was at the residence when he returned about 20 to 30 minutes later.
Defendant testified that, because "the car was gone," he "had to figure out a way to explain it to [his] mom without getting [his] sister in trouble." He testified that it was his idea to tell their mother than the car had been stolen from the apartment complex.
Defendant and his girlfriend, kids, and sister left his parent's girlfriend's residence and went home. Defendant testified that his sister left home at some point after 11:00 p.m.
According to defendant, he did not intend to tell the police that the car was stolen; he only intended to tell the story to his mother. Defendant initially testified that, after he learned that something had happened at the liquor store and the car was involved in a shooting, he decided to report the car stolen to the police. Defendant subsequently testified, however, that he didn't know that something had happened at the liquor store when he reported the car stolen. Defendant admitted that he reported the car stolen to the police even though he knew it wasn't stolen. He testified that he made the stolen car report to protect his sister.
Defendant admitted that he lied during the two times when he called the police on January 4, and when he spoke to Currier regarding his car. He admitted that he lied again when a police officer came to his residence on January 5, 2017, regarding the stolen car report. In this latter report, defendant stated that his girlfriend left the car running while she went inside. When she came back out, the car was gone. Defendant never mentioned that his sister took his key.
Defendant admitted that prior to testifying at trial, he had not told the police or the district attorney "this version of the story" that he told at trial. Defendant admitted that he had told lies, was dishonest, and lacked credibility "[i]n some ways." He testified that he was "telling the truth" at trial.
Defendant testified that his employer usually gave employees two pairs of white gloves for working. According to defendant, the gloves can be bought at any convenience store, and he "regularly" bought more gloves because he needed to switch gloves after his hands got sweaty while working. He testified that he also wore a beanie and a ski mask at work because he worked in a warehouse with coolers. He denied owning a bandana.
Defendant admitted that the ski mask and gloves found in the car were his, and that the beanie was "[p]robably" his. He also admitted that his work gloves, which were in his car and at his home, "[w]ould appear to be the same gloves" that the robber wore.
Defendant suffered prior convictions for petty theft, misdemeanor battery on a doctor or nurse, misdemeanor burglarizing a vehicle, felony vandalism, and felony commercial burglary. He was taken into custody in mid-January 2017 for a probation violation after he tested positive for alcohol. About a month later, he learned that he was being charged with the crimes in the instant case.
In one jail call, defendant told his sister to tell Fernando to "wash the baby." Defendant admitted at trial that he meant for Fernando to wash blood off a gun. Defendant gave this message to his sister because at this point, he knew the gun had been involved in a crime and he didn't want his blood on it.
Defendant testified that he paid for the gun, but that Fernando kept the gun. Defendant testified that he used the gun when he went shooting with Fernando. According to defendant, he shot so many rounds that he got a blister, which popped, and blood got on the gun. Defendant testified that he was supposed to be paid back for the gun, and that he wanted Fernando to wash the blood off the gun before he sold it. Defendant denied using the gun in a crime. As a convicted felon, defendant admitted that he was not supposed to own a firearm, and that he violated the law by buying a firearm.
In a February 23, 2017 jail call, defendant told his girlfriend that he was being charged, and he "warned her that [she] better not have told them." At trial, when asked why he warned his girlfriend not to tell them, defendant testified, "I didn't want her to deviate . . . [¶] . . . [¶] from what I had already started, and the story that I decided to tell." He clarified that the "story" was that "the car was stolen," and he "didn't want her to tell a different story." Defendant denied that he was telling his girlfriend to lie for him.
In a July 8, 2018 jail call, defendant indicated to his girlfriend that he knew why he was in jail, and he knew what he had done. At trial, defendant testified that he said those things because he believed he would be spending a lot of time in prison. He denied that he was telling her that he had committed a crime.
At trial, defendant was asked whether his sister was "the only person that can make moves for [him]." Defendant responded, "I love my sister, and I trust her completely." They had a "bond," and he would "do anything for her."
Defendant admitted that he asked his sister to smuggle drugs into jail. Specifically, he asked her to "lace pages or letters with methamphetamine to send them in the mail." Defendant testified that he wanted to make money and "maybe . . . get high."
C. The Prosecution's Rebuttal Case
On the morning of the robbery, at 11:40 a.m., defendant went to a reporting center as required by his probation conditions. He was not intoxicated by alcohol at the time.
On the night of the robbery, the police located defendant's Toyota Camry at 8:56 p.m. One of the police officers who found the vehicle testified that he did not see anyone loitering or walking on the street where the vehicle was located.
Defendant met with his probation officer on January 9, 2017. Defendant told the probation officer that he had made a stolen vehicle report the day after his car was stolen. When the probation officer asked defendant why he didn't report it the day it was stolen, defendant stated that "he didn't want his girlfriend to get in trouble with his mom."
A police officer went to defendant's residence on January 5, 2017 to document defendant's stolen car report. Defendant reported that he and his sister went to look for the car after they found out it was stolen.
Cell phone records reflected that, before the day of the robbery, defendant and his sister spoke "every once in a while" or every couple of days. On the day of the robbery, however, there were 40 phone calls between them. None of those calls occurred around the time of the robbery, but calls occurred "shortly afterwards."
D. Verdicts and Sentencing
On November 5, 2018, the jury found defendant guilty of attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a); count 1), second degree robbery (§ 211; count 2), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 3), possession of a firearm by a felon (§ 29800, subd. (a); count 4), and possession of ammunition by a felon (§ 30305, subd. (a)(1); count 6). The jury found defendant not guilty of shooting at an inhabited dwelling (§ 246; count 5) but found him guilty of the lesser included offense of discharging a firearm with gross negligence (§ 246.3, subd. (a)). The jury found true the allegations that defendant personally used a firearm in the commission of the attempted murder, robbery, and dissuasion counts (counts 1-3) (§ 12022.5, subd. (a)), that he personally and intentionally discharged a firearm and caused great bodily injury in the commission of the attempted murder and robbery counts (counts 1 & 2) (§§ 12022.53, subds. (b), (c), & (d)), and that he personally inflicted great bodily injury in the commission of discharging a firearm with gross negligence (count 5) (§ 12022.7, subd. (a)).
The abstract of judgment incorrectly states that defendant was convicted of first degree burglary in count 2, and that he was convicted of a violation of section 136 in count 3. We will order the abstract corrected.
At a sentencing hearing on February 28, 2019, the trial court sentenced defendant to an indeterminate prison term of 40 years to life, consecutive to a determinate term of five years.
III. DISCUSSION
Defendant contends that his trial counsel rendered ineffective assistance by failing to object on five occasions to improper opinions by Currier, the detective assigned to investigate the case. Defendant argues that Currier's opinions invaded the province of the jury and that the opinions pertained to his guilt or innocence.
The Attorney General contends that defendant's claims of improper opinion testimony are forfeited because he did not object or move to strike Currier's testimony at trial. Regarding defendant's contention that his trial counsel rendered ineffective assistance, the Attorney General argues that trial counsel did not render deficient performance and that defendant was not prejudiced by his trial counsel's failure to object.
"[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' [Citations.]" (In re Seaton (2004) 34 Cal.4th 193, 198.) Regarding the erroneous admission of evidence in particular, a party must make a timely objection in the trial court in order to preserve the issue for appeal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76.) In view of defendant's trial counsel's failure to object to the testimony at issue, we turn to defendant's contention that counsel rendered ineffective assistance by failing to object below.
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
A. Same Physical Characteristics as Person in Surveillance Video
First, defendant contends that trial counsel's performance was deficient for failing to object to Currier's testimony that defendant is the same height and build and had the same walk as the person in the surveillance video.
At trial, Currier testified that as part of her investigation she reviewed all the surveillance video from the store. She also met with defendant in person on February 23, 2017. Currier testified that she compared defendant to the person in the video and concluded that his "physical descriptors matched" the person in the video. Specifically, defendant had "pretty much" the same height and build. Currier testified that she had also watched defendant as he was escorted down a hallway to the interview room. She believed that his "walk" was a "match" with the person coming into the store as depicted on the video.
"A lay witness may offer opinion testimony if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. [Citation.] '[T]he identity of a person is a proper subject of nonexpert opinion . . . .' [Citations.]" (People v. Leon (2015) 61 Cal.4th 569, 601 (Leon).) Appellate court "decisions have long upheld admission of testimony identifying defendants in surveillance footage or photographs." (Ibid.)
In Leon, the California Supreme Court concluded that the trial court properly admitted a detective's testimony identifying the defendant as the person shown on surveillance videos of two robberies. (Leon, supra, 61 Cal.4th at pp. 600-601.) The detective first saw the defendant when he was arrested a day after one of the robberies. (Id. at p. 600.) The California Supreme Court explained that "[q]uestions about the extent of [the detective's] familiarity with defendant's appearance went to the weight, not the admissibility, of his testimony." (Id. at p. 601.) "Moreover, because the surveillance video was played for the jury, jurors could make up their own minds about whether the person shown was defendant. Because [the detective's] testimony was based on his relevant personal knowledge and aided the jury, the court did not abuse its discretion by admitting it." (Ibid.)
In this case, Currier did not identify defendant as the robber in the surveillance video. She did testify that defendant was the same height, had the same build, and had the same walk as the robber in the surveillance video. Currier's opinion was based on her personal observations of defendant in connection with her interview of him and her review of the surveillance video. As Currier's "testimony was based on [her] relevant personal knowledge and aided the jury," the testimony could properly be admitted at trial. (Leon, supra, 61 Cal.4th at p. 601.) Further, "because the surveillance video was played for the jury, jurors could make up their own minds about whether the person shown was defendant." (Ibid.) Defendant's argument on appeal regarding the brevity of the detective's contact with him go "the weight, not the admissibility, of [her] testimony." (Ibid.) Defendant fails to establish that his trial counsel's performance was deficient for failing to object to Currier's testimony on this issue.
B. Determination that Defendant's Car Was Not Stolen
Second, defendant contends that trial counsel's performance was deficient for failing to object to Currier's testimony that "[i]t was determined that the car was not stolen."
The evidence at trial reflected that defendant told Currier by phone that his girlfriend had been driving the car before it was stolen. Currier eventually spoke to the girlfriend in person at the police department on January 31, 2017, to determine whether the car was stolen. Currier asked the girlfriend about how the car was stolen and spoke to the girlfriend for a while. At trial, Currier was not asked any further detail about her conversation with the girlfriend. Instead, Currier was only asked, "[W]hat conclusions did you come to after that conversation with [the girlfriend]?" Currier responded, "It was determined that the car was not stolen." (Italics added.)
Without deciding whether trial counsel's performance was deficient for failing to object to this statement by Currier, we conclude that defendant fails to demonstrate prejudice. First, Currier had already testified about her examination of defendant's car and the absence of any indicators that the car had been stolen. For example, there were no broken windows, no wires manipulated next to the ignition, no missing items such as the stereo or speakers, and the vehicle had not been burned or abandoned in a remote location. Currier testified that defendant's vehicle looked "undisturbed" with "[n]o signs of tampering." Second, in the February 23, 2017 jail call, defendant asked his girlfriend what she told the detective, because the detective stated to him that the girlfriend admitted the car wasn't stolen and that they had filed a false report. Based on Currier's determination that there were no physical indications that the car had been stolen, and Currier's statements to defendant that his girlfriend admitted the car wasn't stolen (as recounted by defendant in the jail call), the jury would have necessarily reached the conclusion that Currier had determined the car wasn't stolen. Third, both defendant and his sister admitted at trial that the car was not stolen. (See People v. Clark (2011) 52 Cal.4th 856, 928-930 (Clark) [erroneous admission of prosecution evidence regarding the defendant's poverty was not prejudicial because the defendant subsequently testified about living on general assistance].) In view of this evidence, either individually or collectively, we do not believe that if trial counsel had objected to Currier's single statement that "[i]t was determined that the car was not stolen," a " ' "reasonable probability" ' " exists that " ' "the result of the proceeding would have been different." ' " (Lopez, supra, 42 Cal.4th at p. 966.)
C. White Gloves in Car Matched Robber's Gloves
Third, defendant contends that trial counsel's performance was deficient for failing to object to Currier's testimony that the numerous white gloves found in the Camry "matched" the gloves worn during the robbery.
At trial, Currier testified that "several . . . white gloves" were found on the rear passenger floorboard in the Camry. The prosecutor asked Currier whether "there [was] anything of significance about the . . . multiple white gloves that [she] found in the back seat area." Currier responded "[t]hat they matched the ones that the robber was wearing during the robbery." (Italics added.)
On cross-examination, Currier clarified that the gloves in the rear passenger floorboard "were similar to the ones that the robber was wearing," but that she did not think those gloves were used in the robbery. However, she believed that the single glove under the driver's seat and another glove between the front passenger's seat and the middle console were "[p]ossibly" used by the robber.
Without deciding whether trial counsel's performance was deficient for failing to object to Currier's testimony on direct examination that the several white gloves in the backseat area "matched" the robber's gloves, we determine that defendant fails to show prejudice. First, Currier admitted on cross-examination that she did not believe the several backseat gloves that matched the robber's gloves were actually used in the robbery. Second, regarding the two gloves in the front seat area, Currier clarified on cross-examination that those two gloves were only "[p]ossibly" used by the robber. Admitted into evidence at trial were the surveillance video of the robber wearing white gloves and pictures of the white gloves from the car. DNA evidence was also presented, and it showed "strong support" or "very strong support" that defendant was a contributor to the DNA mixture on the two gloves from the front seat area of the car. The jurors could thus make their own determination about whether the two gloves in the front seat area of the car were "[p]ossibly" used by the robber. Third, defendant himself testified that his work gloves, which were in his car and at his home, "[w]ould appear to be the same gloves" that the robber wore. (See Clark, supra, 52 Cal.4th at pp. 928-930 [the defendant was not prejudiced by the erroneous admission of prosecution evidence in view of the defendant's own testimony on the topic].) On this record, defendant fails to establish a " ' "reasonable probability" ' " that " ' "the result of the proceeding would have been different" ' " if trial counsel had objected to Currier's initial testimony about a "match[]" between the robber's gloves and the gloves in the backseat area of the car. (Lopez, supra, 42 Cal.4th at p. 966.)
D. Meaning of "Well , you better not of . . ."
Fourth, defendant contends that trial counsel's performance was deficient for failing to object to Currier's testimony regarding the significance of defendant's statement to his girlfriend, "Well, you better not of."
During a February 23, 2017 jail call that was played for the jury, defendant told his girlfriend that the detective had interviewed him and informed him that he was going to be charged in connection with the robbery. Defendant asked his girlfriend what she had told the detective, because the detective stated to him that the girlfriend admitted the car wasn't stolen and that they had filed a false report. The girlfriend repeatedly insisted to defendant that she told the detective "nothing." At one point, defendant responded to his girlfriend, "Well, you better not of." At trial, Currier testified that this statement by defendant "[stood] out to [her]," and that she interpreted it to mean that the girlfriend "shouldn't have said the things that she said." (Italics added.)
Without deciding whether trial counsel's performance was deficient for failing to object to this statement by Currier, we conclude that defendant fails to demonstrate prejudice. Jurors heard the entirety of the jail call, and thus they could reach their own determination of what defendant meant when he stated, "Well, you better not of." Defendant's statement was made in the context of his girlfriend repeatedly denying that she had told the detective that the car wasn't stolen. Defendant's statement, "Well, you better not of," in this context would readily be understood by jurors to mean that defendant was telling his girlfriend that she "better not" have told the detective the car wasn't stolen. Indeed, when defendant was asked at trial "[w]hat [was he] warning [his girlfriend] not to tell them," he testified that he "didn't want her to deviate from what" he "had already started, and the story that [he] decided to tell," which was "[t]hat the car was stolen." He "didn't want her to tell a different story." (See Clark, supra, 52 Cal.4th at pp. 928-930 [the defendant was not prejudiced by the erroneous admission of prosecution evidence in view of the defendant's own testimony on the topic].)
On this record, defendant fails to establish a " ' "reasonable probability" ' " that " ' "the result of the proceeding would have been different" ' " if trial counsel had objected to Currier's interpretation of defendant's statement, "Well, you better not of." (Lopez, supra, 42 Cal.4th at p. 966.)
E. Meaning of "Wash the Baby"
Fifth, defendant contends that trial counsel's performance was deficient for failing to object to Currier's testimony that defendant's jail call statement to his sister regarding "wash the baby" was a reference to the weapon used in the crime.
At trial, Currier testified that she had investigated hundreds of robberies, and that a majority of those cases involved firearms. Based on her training and experience, robbers or suspects of violent crimes commonly discard evidence after the crime. Currier had listened to thousands of jail calls and had heard telephone and jail calls in which robbery suspects discussed the details of the crimes and getting rid of evidence. Based on her training and experience, suspects often used code words when referring to the weapons used in the robberies. The words used in reference to weapons when suspects are trying to hide or get rid of their weapons include various toys, foods, and a "baby."
Currier testified that she listened to a March 9, 2017 jail call in which defendant used the phrase, "Wash the baby." Currier testified that, based on her training and experience investigating crimes involving firearms, and her familiarity with the types of code words used by suspects, her "professional opinion" as to what defendant meant when he stated, "wash the baby," was "[t]hat he's talking about the weapon used in this crime." At trial, defendant admitted that he meant for Fernando to wash blood off a gun, but he denied using the gun in a crime.
"An expert may give opinion testimony '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).)" (People v. Brown (2014) 59 Cal.4th 86, 101.) The expert's opinion must be "[b]ased on matter (including his [or her] special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him [or her] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his [or her] testimony relates, unless an expert is precluded by law from using such matter as a basis for his [or her] opinion." (Evid. Code, § 801, subd. (b).)
For example, police officers who are experienced and knowledgeable regarding "narcotic traffic," may properly testify "to such matters as that the expression 'Are you looking?' means 'do you wish to purchase heroin,' that 'bag' means a quantity of heroin, and that the price of a 'quarter' bag ordinarily ranged from $ 20 to $ 25." (People v. Brown (1981) 116 Cal.App.3d 820, 828.)
" '[E]xpert opinion testimony " 'will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that [those with] ordinary education could reach a conclusion as intelligently as the witness" ' [citation]." [Citation.]' [Citation.]" (People v. Brown, supra, 59 Cal.4th at p. 101.)
In this case, Currier testified as to her extensive experience investigating hundreds of robberies involving firearms and listening to thousands of jail calls. She also testified that, based on her training and experience, suspects use code words, including "baby," when referring to weapons that they are trying to hide or get rid of. Currier's testimony regarding the meaning of "baby" in the context of defendant's jail call was helpful to the jury and properly admitted. (See Evid. Code, § 801; People v. Brown, supra, 116 Cal.App.3d at p. 828.) Defendant fails to establish that his trial counsel's performance was deficient for failing to object to Currier's testimony.
IV. DISPOSITION
The judgment is affirmed.
The abstract of judgment regarding defendant's determinate term (Judicial Council form CR-290) is ordered corrected to state:
(1) in case No. SS170353A, defendant was convicted in count 2 of second degree robbery, and
(2) in case No. SS170353A, defendant was convicted in count 3 of violating Penal Code section 136.1, subdivision (c)(1).
The trial court is directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.