Opinion
B228076
01-17-2012
THE PEOPLE, Plaintiff and Respondent, v. LAQUAN PARKER et al., Defendants and Appellants.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant LaQuan Parker. Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant Freddie Williams. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Brandon Boyd. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA080373)
APPEALS from judgments of the Superior Court of Los Angeles County. James B. Pierce, Judge. Affirmed as modified.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant LaQuan Parker.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant Freddie Williams.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Brandon Boyd.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellants Freddie Williams, Brandon Boyd, and Laquan Parker of the following crimes: kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1); count 1); second degree robbery (§ 211; counts 2, 4-6, 8-11); and false imprisonment (§ 236; count 3). The jury found true the firearm enhancements alleged in counts 1 through 6 and 8 through 11 pursuant to sections 12022.53, subdivision (b) and 12022, subdivision (a). The jury convicted Williams and Parker of being an occupant with a concealed firearm in a vehicle (§ 12025, subd. (a)(3); count 12). The jury convicted Boyd of being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 13) and being a convicted person with a concealed weapon in a vehicle (§ 12025, subd. (a)(1); count 14). Boyd admitted a prior felony conviction for robbery within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court denied Boyd's motion to strike the prior felony conviction.
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced Parker and Williams to prison terms of life plus 51 years each. The trial court sentenced Boyd to a term of life plus 100 years.
Appellants raise the following issues on appeal: (1) the trial court erroneously failed to grant Parker's timely Faretta motion; (2) there was insufficient evidence in support of the verdict in count 8; (3) there was insufficient evidence of the asportation element of the kidnapping for robbery charge in count 1; (4) the convictions were based on insufficient identification evidence and the field showup was suggestive; (5) counsel was ineffective in failing to seek exclusion of the identification testimony; (6) the firearm-use enhancement on the false imprisonment count must be stricken; (7) there was insufficient evidence to support the true findings on the firearm-use enhancements; (8) the trial court's instructions regarding the firearm-use enhancements were inadequate, and counsel were ineffective in not seeking pinpoint instructions; (9) the prosecutor committed misconduct during closing argument; (10) Boyd's enhancement terms were erroneously doubled; (11) cumulative error deprived appellants of a fair trial; (12) the abstracts of judgment contain numerous errors.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
FACTS
The factual summary omits the evidence presented regarding two robberies at Subway restaurants (counts 25 through 29), since the jury did not convict on those counts.
1. Robbery at the Crow's Nest
At approximately 7:00 p.m. on November 29, 2008, Aaron Terbest was smoking a cigarette outside the alley entrance to the Crow's Nest bar in Long Beach. He had drunk only one beer and started a second. He saw three young Black men walking toward him, putting on "hoodies" and bandanas. Each of them was carrying a semiautomatic firearm. The area was lit with two motion sensor flood lights, and Terbest was able to see the faces of the men before they covered them. Terbest, who had been in the military and believed he was very familiar with firearms, testified that the guns were definitely semiautomatics, although he later conceded that one of them could have been a .380-caliber revolver.
One of the men approached Terbest, and "stuck [a gun] in [his] back," told him to turn around, and said, "Get inside the bar." Terbest walked into the dimly lit bar and kept on walking until the man told him to get on his knees. Terbest kept moving on his knees until he was approximately two-thirds of the way down the actual bar. One of the robbers then told him to get on his stomach. Terbest was afraid of the gun, and he obeyed the order. The man reached into Terbest's pocket and grabbed his wallet. Besides credit cards and identification, Terbest's wallet contained about $60 in cash. Terbest heard one of the robbers say, "You want me to shoot you, bitch." Terbest assumed the robber was talking to the female bartender, Anajimmay Lozano.
Lozano testified that the robber put a gun to her head and told her to give him the money. She said, "Okay" and he "cocked the gun." She opened the cash register and he grabbed the money. The man was a Black male with a red and white striped hoodie. He wore black pants and black shoes. His face was covered, but Lozano saw his eyes. He was 17 to 20 years of age and was not tall—perhaps five feet four inches in height. He left through the back door of the bar.
Juan Noriega was at the Crow's Nest that night. Because he was very tired, he was dozing off as he sat at the bar. He opened his eyes and saw someone behind the bar with a small gun telling the bartender to give him the money. Noriega glanced to his right and saw another man taking the belongings of each person to his right. He realized he was next, so he walked quickly toward the alley door. Someone with a big gun grabbed his arm and shoved the gun into him. The robber took Noriega back to his seat. The man had a mask on, so Noriega did not get a good look at him. The gunman demanded Noriega's money, and Noriega put approximately $200 on the bar. When Noriega showed the robber that his wallet was empty, he was allowed to put the wallet back in his pants pocket. The robber patted down Noriega and told him to get on the ground. The robber was a Black male who looked young. Noriega thought the robber was wearing a red and white shirt. Noriega could only see the man's eyes. The other two robbers were also Black males with their faces covered. Noriega told the police he would not be able to identify the three robbers, and he did not go to a field showup.
Anthony Cepeda was watching the basketball game at the Crows Nest when he saw three men walk in and proceed to rob the bar. The robber behind the bar was holding a gun on the bartender. He was wearing a red and white striped sweater and some kind of mask or hood. The other two robbers were walking down the bar and taking things from the people seated there. At trial, Cepeda said he could not tell if the robbers were male or female, and he could not distinguish their race. One robber took Cepeda's cell phone, but his cash was not taken. Cepeda was shown a photograph of an article of clothing (Peo. exh. No. 9), and he stated it looked very similar to the sweater worn by the robber behind the bar. Cepeda went to a field showup but was not able to identify anyone.
As the robbery at the Crow's Nest progressed, Terbest heard a disturbance at the back of the bar near the alley door. He crawled toward the front door and then got up and ran outside to the street. As he ran toward a phone booth he knew, he saw the robbers running down the alley. Terbest did not reach the phone booth and walked back to the bar when he saw police heading in that direction. He gave a statement to police and told them that one of the robbers wore a red and white striped shirt, and another wore a black hoodie. The third wore a green hoodie. Terbest identified a photograph of a red and white striped hoodie as one that was worn by one of the robbers.
Officer Claudia Lopez of the Long Beach Police Department took Terbest's statement. Terbest was nervous and scared. He told Officer Lopez he felt the muzzle of the gun at his head as he crawled into the bar. He said the robbers were three Black males. One wore a red and white striped shirt and had his face covered with either a bandanna or a white T-shirt. The second robber wore a black hoodie, and the third a green hoodie. Terbest said he would be able to identify the men again. He said that their firearms were a semiautomatic Beretta, a .380-revolver, and a semiautomatic GLOCK. Terbest said he had drunk a few beers. He spoke clearly, however, and was able to give precise details of the incident.
After Terbest gave his statement to Officer Lopez, another officer told him to "hang tight here because we think we might have got the guys." Before he went out to the field showup, he was shown an admonition form and he signed it. He recalled that the gist of the admonition was that the person may or may not be the robber. He signed three forms. Terbest remembered that the officer who drove him to the showup said, "basically just, you know, if you can ID them, you can ID them. If you can't, you can't, you know." At the showup, the police turned their lights on the suspects as they were brought out one by one to be viewed by Terbest and other witnesses. The men were handcuffed. After seeing each suspect, Terbest said, "That's him." No more than an hour elapsed from the time of the robbery to the field showup, which occurred about two years before the trial. Terbest identified the three men at the field showup not only because they were Black but also based on their height, weight, build, and what he could recognize of their faces. When asked if he saw any of the robbers in court, Terbest identified Parker as someone he recognized from the showup, but he could not specify Parker's role in the robbery at the bar. At the May 2009 preliminary hearing, Terbest identified all three appellants. He said that Parker was the one who put a gun to his back, and that Boyd and Williams also had guns, but their guns were not pointed at Terbest.
Long Beach police officers Jennifer Riordan and Rodolfo Rios conducted the field showup with Terbest. Officer Riordan assisted in giving Terbest the field showup admonitions at the bar. The admonition stated that the person detained "may or may not be the person involved in the crime. Because a person may or may not have handcuffs, do not let that persuade you one way or another." They also told Terbest that it is "just as important for us to exonerate an innocent person or [sic] put a criminal in jail." Terbest was alone in the car with the two officers. The suspects were brought out one by one and the officers shone spotlights on them. Boyd was brought out first, Williams second, and Parker third. Terbest said, "Yeah. That's him" with respect to all three suspects, and he did so without hesitation.
Lozano was the person who called the police after the robbery. The police arrived quickly. Later Lozano was told that "they had found them somewhere, asked us if we'd go with them to identify them." The only thing she could say at the field showup was to ask if one of them wore all black Converse shoes because that is what she remembered. Before going to the showup she read and signed the admonition forms. The police did not say they had the people that robbed the bar. Of the three suspects shown to her, she was only able to pick out one of them based on his pants, shoes, and build. Her statement said that the shoes were black Converse. Lozano could not identify anyone in court. It was Boyd whom Lozano identified in the field showup as the person who wore the red and white striped sweatshirt and put a gun to her head.
2. Robbery at El Paisano
Fermin Valenzuela entered the El Paisano bar in Long Beach on November 29, 2008, at approximately 7:30 p.m. He got a beer from the bartender, who was a female Hispanic. After approximately 10 minutes, Valenzuela saw three Black men enter through the back door wearing hoodies and dark jeans. Valenzuela could see only their eyes because their faces were partially covered. The three men pointed guns at the patrons and told everybody to get on the floor. Valenzuela removed his watch and took out his wallet and tossed them to the side because he did not want them to be stolen. He clutched his wedding ring in his fist. One of the robbers came behind Valenzuela and pointed a gun at the back of his head. One of the robbers frisked Valenzuela and asked him where his wallet was. Valenzuela said he left it at home. The robber took Valenzuela's car keys and $5 from his jacket. The robbers moved quickly and then ran out through the back door. The police arrived shortly thereafter and took Valenzuela's statement. Valenzuela knew that the robbers were Black males, and he also noticed their builds.
Valenzuela read and signed an admonition form before going to a field showup. He identified the first person he was shown (Boyd) by the shirt, the jeans, and the weight. He said, "I think that's one of them." Valenzuela identified the second suspect, Williams, as the person who pointed the gun at him and made him get on the ground. He told the officers that the third suspect, Parker, was the first guy who walked in, went behind the bar, and yelled at the bartender to hand over the money. All three men had guns. Valenzuela could not identify anyone at the preliminary hearing or at trial. Valenzuela was shown a photograph of some keys, and he identified them as the ones taken from him during the robbery.
Dania Reyes was at El Paisano with her sister, Wendy Lopez. Reyes placed her purse on the bar. Three men came into the bar, and one of them stayed in the back by the restroom. Reyes remembered two of the men having guns. The man who stayed in the back was Black, and he may have been wearing shorts with his face covered with a stocking. The two who came running inside told everyone to get down on the ground. One of the robbers approached the female bartender and demanded money from her. Reyes saw that the robber nearest her was wearing white tennis shoes. When Reyes finally stood up her purse was gone. Her purse was gray, black, and brown, and contained her identification, lotion, and money. She did not give anyone permission to take her purse.
Reyes said that all three of the robbers were young Black males. The two who came all the way inside had their faces covered. Reyes told police that one of the robbers wore white tennis shoes and a shirt that was red with another color. Reyes acknowledged that she told the police the first suspect was a male Black in his early 20's, five feet eight inches to five feet 11 inches in height, 170 to 190 pounds, with shoulder length braids. Reyes was taken to the field showup but was not able to identify anyone. At trial, Reyes was shown a photograph of an identification card (Peo. exh. No. 15) and a purse and coin purse (Peo. exh. No. 16), all of which she identified as belonging to her and as having been taken from the bar. Reyes also identified a picture of her sister's purse (Peo. exh. No. 17).
Wendy Lopez identified a photograph of the purse she had at the bar that night. She also had a cell phone. (Peo. exh. No. 17.) She remembered seeing three male Blacks enter the bar and point guns at the patrons. One robber threw her sister to the ground and another pulled Wendy inside to where the register was located. The other man closed the back and front doors. Wendy was told to get on her knees and hand over her cell phone. A gun was pointed at her head. That robber opened the cash register as he pointed the gun at the bartender. Wendy's purse was on a table and it was gone after the suspects left.
Wendy told police that the person who held a gun to her head was wearing white tennis shoes, jeans, and a shirt that was red with white or black. She did not recall what the other two men were wearing except for stocking masks.
Wendy signed each of the admonition forms after an officer read the admonition to her. Police took her to the showup. Upon seeing the first suspect (Boyd), she told police it "looked like him," meaning the young man in the jeans. The suspect had the same height and body. She recognized the jeans and white shoes of the second suspect (Williams). She did not recognize the third suspect (Parker).
Williams was wearing white and gray canvas shoes when he was arrested.
Francisco Javier Lopez was entering the El Paisano bar through the back door when he was pushed against the wall by a person coming out of the bar. He did not see this person's face, but he saw something in the person's hand. Nothing was taken from him. He later told police that he saw a small gun in the person's hand. Francisco did not want to be in court testifying because he was in fear for his safety. At trial he said he did not get a good look at what the robber who pushed him had in his hand. He signed the admonition forms, although he did not remember well if the officer read it to him. He did not recall what he said when he saw the first person in the showup. After having his memory refreshed, Francisco recalled that he said the robber who pushed him was the first person in the showup. He said that the second person had a gun. He said he had not seen the third person at all. He described seeing two male Blacks, and one of them wore a black hooded sweatshirt.
Officer Aristeo Sandoval interviewed Francisco and Valenzuela after the robbery. Francisco told him he saw two male Blacks. One of the men had a gun, a "black semi" in his hand. Officer Sandoval read Francisco the admonition before the showup. Francisco said that Boyd was the one running out of the bar. Williams was the person holding "the gun." Francisco said he did not see Parker.
3. Arrest of Appellants
On the date of the robberies at the two bars, Detective Michael Staley of the Los Angeles County Sheriff's major crimes division was conducting undercover surveillance at a residence located on Gaviota Avenue in Long Beach. He was in radio contact with seven or eight other detectives in the surveillance crew. At around 6:40 p.m., he saw a dark gray Toyota Camry pull up at the residence, and a young Black male exited the car and entered the house. Shortly thereafter, three Black males between the ages of 18 and 25 left the residence, entered the Camry, and drove northbound on Gaviota Avenue. The males wore hooded sweatshirts.
Detective Staley radioed the Camry's movements to the other detectives in the area. Detective Dana Duncan began following the gray Toyota Camry when it left the residence. Detective Duncan lost the Camry after it crossed heavy traffic and got on the westbound 91 freeway. Detective Duncan and other detectives were not able to find the Camry. Detective Duncan returned to the Gaviota Avenue location, where he saw the Camry return about an hour later.
When the Camry was once again parked on the street, it was two cars in front of Detective Staley on the same side of the street. Detective Staley saw the occupants of the Camry, and he identified Boyd as the driver, Williams as the right front passenger, and Parker as the backseat passenger.
Detective Duncan approached the Camry driving slowly in his vehicle, with his car's high beams on. His headlights illuminated the inside of the car and he saw three males inside who appeared to be looking inside ladies' purses. Williams, in the right front passenger seat, looked up toward Detective Duncan for a moment, then returned to digging through the purses. Detective Duncan radioed this information to the other units and joined them just around the corner from the Camry. A black and white patrol car that had been enlisted from the Lakewood station drove up to the Camry and illuminated it while turning on its red lights. Deputy Ferreira, who was driving the patrol car, ordered the three occupants out of the car at gunpoint.
Officer Fermin Gonzalez searched the Camry and found three purses on the front passenger floorboard: a black and gray purse with an identification card belonging to Dania Reyes, a black purse with red stars containing papers for an Esperanza Perez, and a green cloth purse containing papers for Wendy Lopez. Officer Gonzalez found a Daisy Desert Eagle BB gun under the front passenger seat. This BB gun uses compressed gas to shoot small projectiles and is not a firearm. Officer Gonzalez found two beanie masks on top of the front passenger seat. There was a coin purse with some currency inside. Two more black beanies were found—one in the trunk of the Camry. Officer Gonzalez found a brown "sidekick" cell phone and $37.86 in currency in the front driver's seat. There were two more cell phones in the cup holder, one of which was broken in half. Inside the center console, Officer Gonzalez found $952 in cash and an unloaded and operable Jennings .22-caliber semiautomatic firearm. No fingerprints were found on the gun. A red and white striped hoodie was found in the backseat of the car, along with a black hoodie with black skulls on the arm. He found a wallet in the backseat that contained paperwork for Esperanza Perez and a set of car keys. Officer Gonzalez found a total of about $1,100 in the vehicle.
Another officer searched the Camry a few days later. A .25-caliber semiautomatic firearm was found hidden under the center console between the driver's seat and the passenger seat. The center console was not one that would typically be lifted up so as to reveal the space beneath it. The gun was loaded with five rounds, but no fingerprints were found on the gun. A gray hooded sweatshirt and a black T-shirt were found in the trunk.
Defense Evidence
Richard Webb had known Williams since he was three years old, and he testified that Williams was not the kind of person he associated with violence. Williams was a very quiet kid. Parker and Boyd rested without presenting any evidence.
DISCUSSION
I. Parker's Requests for Self-Representation
A. Parker's Argument
Parker contends the trial court erred by failing to grant his timely motion to represent himself four months before trial. He argues that the error is reversible per se.
B. Proceedings Below
On April 26, 2010, Parker's attorney, Edmont Barrett, told the court that Parker had informed him that he wished to "go pro. per." Parker wished to read a statement to the court. The trial court warned Parker that his was not a case where a defendant should represent himself and that his life was at stake. It handed Parker a list of problems that occur with in propria persona (pro. per.) status and asked him to read it, but also told Parker that if he wanted to go pro. per. he would be allowed to do so. The trial court spoke at length about the foolishness of going pro. per. Parker then made his statement, saying that what he really wanted was new counsel, and he went on to complain about Mr. Barrett's handling of his case. The trial court cleared the courtroom for a Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
After denying the Marsden motion, the trial court stated in open court that it would give Parker time to think about going pro. per. Parker asked for at least a week, saying, "Sometime next week I'll have an answer." The trial court set a date during the following week for Parker's decision.
On the appointed day, Parker gave the trial court the waiver of right to counsel form, which had been filled out and signed. Parker had no attorney representing him. The trial court again exhorted him to reconsider his decision. Parker replied that he understood what the trial court was saying. The trial court told Parker that, since one of his codefendants had a new attorney, the court had to continue their proceeding in any event. The trial court asked Parker to hold onto the form until the next court date in two or three weeks, which would allow Mr. Barrett to stay on the case until the next trial setting date. Parker agreed. Ultimately, the trial court placed Parker's pro. per. form in the court file and set the case to reconvene on May 20, 2010.
Court did not reconvene until July 22, 2010, when the trial court heard motions under sections 995 and 1538.5. Parker did not mention pro. per. status to the trial court and did not ask the trial court to rule on his request. The proceedings were then adjourned until August 11, 2010. On that date, the proceedings continued and voir dire began. Voir dire continued on August 12 and 13. On August 16, the trial court gave preliminary jury instructions and opening arguments were made. Parker did not again request pro. per. status.
C. Relevant Authority
"A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. (Faretta v. California, supra, 422 U.S. 806, 819.)" (People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall).)
"[U]nlike the right to be represented by counsel, the right of self-representation is not self-executing. In Faretta, . . . the court held that a knowing, voluntary, and unequivocal assertion of the right of self-representation, made weeks before trial by a competent, literate defendant, should have been recognized [citation]; subsequent decisions of lower courts have required expressly that the defendant make a timely and unequivocal assertion of the right of self-representation. [Citations.]" (Marshall, supra, 15 Cal.4th at pp. 20-21.) "The high court has instructed that courts must draw every inference against supposing that the defendant wishes to waive the right to counsel. [Citation.] It follows, as several courts have concluded, that in order to protect the fundamental constitutional right to counsel, one of the trial court's tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. [Citations.] The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words." (Id. at p. 23.) The erroneous denial of a timely Faretta request is reversible per se. (People v. Butler (2009) 47 Cal.4th 814, 824.)
In determining whether a request was equivocal, we examine all the circumstances, drawing every reasonable inference against a waiver of the right to counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1087; Marshall, supra, 15 Cal.4th at p. 23.) If the motion was made in passing anger or frustration, was ambivalent, or was brought to delay trial, it may be denied. (Marshall, at p. 23.)
D. No Constitutional Violation of Parker's Rights under Faretta
We conclude that Parker forfeited or abandoned his self-representation right by not reasserting it after the court said it would rule on the request at a later proceeding but forgot to mention it again. (See People v. Lloyd (1992) 4 Cal.App.4th 724, 731-732; People v. Skaggs (1996) 44 Cal.App.4th 1, 7-8 (Skaggs).) It appears that Parker decided he no longer wanted to represent himself.
Parker's situation is similar to the one presented in Skaggs. In that case, the trial court made no ruling on a Faretta motion raised during the course of a Marsden hearing. (Skaggs, supra, 44 Cal.App.4th at pp. 5-7.) The Skaggs court held that "[b]y failing to request such a ruling and never raising the issue again, Skaggs abandoned the motion he now claims he made." (Id. at pp. 7-8.) In the instant case, had Parker sincerely wished to represent himself, he could have reminded the trial court of his pending request at any of the subsequent proceedings over the course of four months before trial. As Skaggs held: "Skaggs's failure to request . . . a ruling or to raise the issue again and his silent acceptance of defense counsel's assistance for the remainder of the proceedings in the trial court constitute a waiver or abandonment of any right to self-representation [he] arguably asserted." (Id. at p. 8.) Here, too, Parker forfeited or abandoned any Faretta motion by failing to reassert it after there had been no ruling upon it.
In People v. Kenner (1990) 223 Cal.App.3d 56 (Kenner), the court also held that the defendant's conduct following his Faretta motion established abandonment of the motion. In that case, after the defendant made a Faretta motion, the court set the matter for hearing. Because the defendant was in custody on another matter, he repeatedly missed the hearing, which had to be continued four times. When he appeared, he was represented by counsel, who asked that the motion be reserved until the next pretrial hearing. The pretrial hearings came and went, and the trial court failed to hold a hearing on the Faretta motion. The defendant also failed to mention his motion again until he challenged his conviction on appeal. (Kenner, at pp. 58-60.) The Kenner court concluded that the defendant had abandoned the motion, noting that he never asked for a ruling despite ample opportunity to do so. The defendant's conduct clearly indicated that he had acquiesced in being represented by counsel. (Id. at p. 62.)
The Kenner court posited several devious motives for the defendant's failure to reiterate his or her request for self-representation, but we need not engage in such speculation. (See Kenner, supra, 223 Cal.App.3d at p. 62.) We believe that Parker merely thought better of his decision to represent himself and gave up the idea. It is not unreasonable to expect defendants who sincerely seek to represent themselves to speak up under the circumstances present in this case. As noted in Kenner, trials and pretrial proceedings are often hectic, and it is not unheard of for a trial court to forget to rule on a motion. It does not appear beyond the bounds of reason to require a defendant who desires to represent himself to remind the court of the pending motion.
People v. Dent (2003) 30 Cal.4th 213 (Dent), on which Parker relies for the proposition that the trial court cannot require a defendant to repeatedly renew a Faretta motion, is readily distinguishable. In that case, the trial court relieved both appointed defense counsel on the day of trial because of their repeated requests for continuances and failures to appear. (Dent, at pp. 215-216.) When Dent asked to say something, the trial court told him not to say anything because it might incriminate him in some way. (Id. at p. 216.) One of Dent's two attorneys, Mr. Maple, ultimately appeared and told the court that Dent was concerned about having both counsel replaced. (Id. at p. 217.) Dent wanted only one of his attorneys to be replaced or, in the alternative, he wished to proceed in pro. per. (Ibid.) The trial judge interrupted Maple, stating, "'I am not going to let him proceed pro. per.'. . . 'Not in a death penalty murder trial.'" (Ibid.) Dent himself said, "'I ain't never expressed it. But if I receive two new counsel, I would like to go pro. per.'" (Ibid.) The trial judge ignored Dent's remark and responded only by saying, "'Anything further, Mr. Maple?'" When Maple said there was nothing else, the trial court relieved him as counsel of record and ordered him to turn over the files. The proceedings were adjourned, and new defense counsel was appointed that afternoon. Dent did not subsequently renew his Faretta motion. (Ibid.)
The Dent court held that, since the nature of the charge is irrelevant to the decision to grant or deny a timely Faretta motion, the trial court improperly denied Dent's request merely because Dent was subject to the death penalty. (Dent, supra, 30 Cal.4th at p. 218.) Thus, the trial court's response to Dent's request was legally erroneous. Moreover, its peremptory nature foreclosed any possibility that Dent would view self-representation as an available option. (Id. at p. 219.) This was compounded by the trial court's acts of ignoring Dent's remark and telling him not to speak to the court. (Ibid.) These actions would have convinced Dent that renewing his Faretta motion would be futile. (Dent, at p. 219.) Thus, it is clear that the holding in Dent was governed by the fact that the trial court "'conclusively denied'" Dent's request. For that reason, he was "'not required continually to renew [the] request.'" (Ibid.)
The trial court in the instant case never foreclosed the option of self-representation to Parker. Unlike Dent, Parker had absolutely no basis for believing he would not be granted his request to act as his own attorney. Parker silently accepted defense counsel's representation for the remainder of the trial. Because Parker had ample time and opportunity to follow up on his request for a hearing on his Faretta motion but failed to do so, he is deemed to have abandoned it. Moreover, under the circumstances of this case, it could reasonably be concluded that Parker's request was made on a whim due to his momentary dissatisfaction with his attorney. A request for self-representation under such circumstances could be construed as equivocal and fleeting, such that there was no violation of his right to self-representation. Parker's argument is without merit.
II. Sufficiency of the Evidence in Count 8
A. Appellants' Arguments
Parker points out that Perez, the named victim in count 8, did not testify, and no other witness testified that Perez's purse was taken from her immediate presence by force or fear. There was no authentication that the purse even belonged to her. Therefore, there was insufficient evidence to support Parker's conviction in count 8, and it is a violation of due process. The conviction and its corresponding firearm enhancement must be reversed. Williams joins in Parker's argument, and Boyd presumably does so as well.
B. Relevant Authority
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) "The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.) Reversal is only warranted where it clearly appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)
Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211; see People v. Torres (1995) 33 Cal.App.4th 37, 49.)
C. Proceedings Below
All three appellants were charged in count 8 with the robbery of "Sofia Perez." After the People rested, the prosecutor explained to the court that Perez's actual name was Esperanza Perez, and she was the bartender working at El Paisano on the night of the robbery. Although she did not testify, several witnesses testified that the bartender was there and was approached by a man with a gun. Police found a purse with paperwork belonging to Esperanza Perez in the Camry in which appellants were arrested after the bar robberies. Despite objection by Boyd's attorney, the trial court allowed the People to amend the information to name Esperanza Perez in count 8.
The evidence of the robbery at El Paisano was given by three witnesses. Valenzuela testified that there was a female Hispanic bartender in her early 30's or late 20's. Valenzuela and the bartender conversed in Spanish. Valenzuela said the one of the robbers went behind the bar with his gun drawn and yelled at the bartender to hand over whatever money she had.
Reyes said there was a female bartender at El Paisano. Reyes did not know the woman's name because the woman was a new employee. Reyes herself worked as a bartender at El Paisano, but she had finished her shift when the robbery began. Reyes testified that one of the robbers who entered the bar told the bartender to give him all the money from the cash register. Wendy, Reyes's sister, testified that the bartender was female, and she did not know her name. One of the armed robbers pulled Wendy inside the bar area, where the register was located, and ordered Wendy to her knees. Wendy said that the same robber pointed his gun at the bartender as she stood next to the cash register, and he opened the cash register.
Detective Gonzalez found three purses on the floorboard of the front passenger side of the gray Toyota Camry. One contained identification belonging to Reyes, one contained paperwork for Wendy, and the third contained paperwork for an Esperanza Perez. In the backseat of the car, the detective found a wallet containing paperwork for Esperanza Perez.
D. Insufficient Evidence of Robbery
Indulging all reasonable inferences that the jury could draw from the evidence, we conclude the evidence was insufficient to support the convictions for robbery in count 8. (People v. Bolin, supra, 18 Cal.4th at p. 331.) There was no evidence that the bartender's purse was taken, or that it was taken from her immediate presence. Therefore, two elements of the offense of robbery of the bartender's personal property were not shown by the evidence. However, the testimony of the three bar patrons establishes that one of the robbers demanded money at gunpoint from the female Hispanic bartender, although there was no evidence that the robber actually obtained any cash from the till. Nevertheless, at a minimum, an attempted robbery of the bartender, who was in possession of the contents of El Paisano's cash register, was shown. The jury was instructed with CALCRIM No. 1600 that "[a] store or business employee who is on duty has possession of the store or business owner's property." The elements of immediate presence, the fact that the taking was against the bartender's will, the use of force or fear, and the intent to permanently deprive were all shown by the evidence. The prosecutor identified the victim in count 8 as the "female Hispanic bartender" at El Paisano to the jury. Although Boyd's attorney objected to the name change, none of the defense attorneys objected to the identification of the count 8 victim as the bartender from El Paisano. The fact that the bartender did not testify does not preclude a charge of robbery or attempted robbery against her as an employee "in possession" of the money in the cash register. (See People v. Jones (1996) 42 Cal.App.4th 1047, 1053-1055 [evidence sufficient to support conviction for robbery of store's truck driver in his representative capacity with respect to owner of the property, even though truck driver did not testify].) Under the totality of the circumstances, we conclude appellants' convictions must be reduced to attempted robbery in count 8. (§§ 1181, subd. (6), 1260; People v. Navarro (2007) 40 Cal.4th 668, 679 [statutory scheme allows courts to modify the judgment to bring verdict in line with evidence presented at trial].)
III. Movement for Kidnapping
A. Appellants' Arguments
Parker contends that the brief movement of Terbest just five feet from the alley into the Crow's Nest bar was incidental to the robbery and did not substantially increase his risk of harm. Boyd also contends that the asportation element of the charged aggravated kidnapping of Terbest was not proved beyond a reasonable doubt. The movement was such a short distance that there was insufficient asportation as a matter of law, and the jury should not have considered whether the movement increased the risk of harm. Williams joins in this argument and points out that defense counsel moved for acquittal of this count under section 1118.1 at the close of the prosecution's case.
B. Relevant Authority
The standard for reviewing the sufficiency of the evidence was recited in the previous section. In ruling on a motion under section 1118.1, the trial court applies the same standard used by the appellate court in reviewing the sufficiency of the evidence to support a conviction. (People v. Mendoza (2011) 52 Cal.4th 1056, 1079.) "'"The question is one of law, subject to independent review[]"' [citation]" by this court. (Ibid.) In order to find merit to the claim that the section 1118.1 motion was erroneously denied, we would have to conclude that no rational trier of fact could have decided the element of asportation was satisfied after the prosecution's case-in-chief. (People v. Arias (2011) 193 Cal.App.4th 1428, 1435.)
Section 209, subdivision (b) provides, in pertinent part: "(1) Any person who kidnaps or carries away any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense."
Section 209 thus consists of two prongs. First, to determine whether a victim's movement is merely incidental to the underlying crime we consider the scope and nature of the movement, including the actual distance the victim is moved. (People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford).) There is, however, no minimum number of feet a victim must be moved to satisfy the first prong. (Ibid.) The second prong of the test requires consideration of whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. (Id. at p. 13.)
The two elements of the test are related: "whether the victim's forced movement was merely incidental to the [underlying offense] is necessarily connected to whether it substantially increased the risk to the victim." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) "[E]ach case must be considered in the context of the totality of its circumstances." (Ibid.)
C. Sufficient Evidence of Asportation
The actual distance Terbest was moved (approximately five feet from outside the bar to inside and then approximately five to six feet within) was a relatively short distance, it is true. We disagree, however, with appellants' arguments that the movement was merely incidental to the robbery. As noted, the two aspects of asportation "are not mutually exclusive, but interrelated." (Rayford, supra, 9 Cal.4th at p. 12.) They are interrelated "because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim." (People v. Martinez (1999) 20 Cal.4th 225, 236 (Martinez).) "Application of these factors in any given case will necessarily depend on the particular facts and context of the case." (People v. Dominguez, supra, 39 Cal.4th at p. 1153.)
At the outset, we disagree with Boyd's assertions, based on People v. Washington (2005) 127 Cal.App.4th 290, 302 (Washington) and Martinez, that the short distance Terbest was moved precludes a finding of kidnapping as a matter of law. Although Washington cited Martinez for this proposition, when Martinez emphasized that, "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance," the Martinez court was referring to the crime of simple kidnapping, with no underlying crime, in violation of section 207, subdivision (a). (Martinez, supra, 20 Cal.4th at p. 237.)
The jury in this case was properly instructed pursuant to CALCRIM No. 1203 that in order to find appellants guilty of committing kidnapping for robbery, "the People must prove that: [¶] 1. The defendant intended to commit robbery; [¶] 2. Acting with that intent, the defendant took, held, or detained another person by using force or by instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a robbery; [¶] 5. When that movement began, the defendant already intended to commit robbery; [¶] [AND] [¶] 6. The other person did not consent to the movement. [¶] As used here, substantial distance means more than a slight or trivial distance. The movement must have substantially increased the risk of physical or psychological harm to the person beyond that necessarily present in the robbery. In deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
The evidence in the instant case supports both elements of the asportation requirement of section 209, subdivision (b)(2). The movement of Terbest a distance of five or six feet from the alley to the door of the bar and then about five feet more down the passage to the bar itself, was beyond that which may be described as merely incidental to the robbery of the bar and the patrons inside. First, although actual distance is a factor for consideration, it is not conclusive. (People v. Salazar (1995) 33 Cal.App.4th 341, 346; see also Rayford, supra, 9 Cal.4th at p. 12.) Second, when the defendant's purpose for moving the victim is largely to avoid detection, the movement becomes more than incidental to the actual commission of the crime. (People v. Salazar, at p. 347.) For example, in People v. Thomas (1970) 3 Cal.App.3d 859, in sustaining kidnapping for robbery convictions, the court found the victims were forced to move from a well-lighted public street to a dark alley, where in addition to increasing the risk of harm, the movement enabled the robber to accomplish his purpose of robbery with much less probability of apprehension. (Id. at p. 866; see also In re Lokey (1974) 41 Cal.App.3d 767, 771.) Boyd dismisses this circumstance by saying that "the very nature of crime is surreptitious" and it would be rare and downright stupid for any criminal to commit his crime without minimizing the likelihood of detection. Perhaps it would have been stupid to allow Terbest to run away, but the unfortunate solution to this problem was to kidnap him. The fact that it might have been stupid to let him go does not preclude the labeling of his forced movement as kidnapping.
Other factors developed in People v. James (2007) 148 Cal.App.4th 446 (James) lead to the conclusion that the movement of Terbest in this case was kidnapping for the purpose of robbery. Perhaps recognizing the similarity of the kidnapping in James to that of Terbest, appellants seek to distinguish that case. Although there are some factual differences between James and the instant case, we believe James is analogous. Defendant James and several associates robbed a bingo club before it opened for business. (Id. at p. 449.) The robbers put a gun in the back of an employee, Jesus Gonzalez, who was outside hosing down the parking lot, and they forced him to knock on the door of the club to gain entry. (Ibid.) When another employee opened the door for Gonzalez, the armed man and one of his associates entered, throwing Gonzalez to the floor. (Id. at pp. 449-450.) All of the employees present were ordered to the floor except for a female who was made to open a safe. (Id. at p. 450.) The employees and the robbers waited for the arrival of the supervisor, who was forced to open the remaining safes, which were then emptied. (Id. at pp. 450-451.) The employees were personally robbed of money from their wallets. (Id. at p. 450.) James challenged on appeal his conviction for the kidnapping for robbery of Gonzalez. He argued that the asportation element was not shown, since his movement of Gonzalez from outside the club to inside was merely incidental to the robbery of the club, and the movement did not increase the risk of harm to Gonzalez. (Id. at p. 452.)
In considering whether the movement of Gonzalez was merely incidental to the underlying offense, the James court found it significant that the underlying crime was not the robbery of Gonzalez, but the robbery of the bingo club. (James, supra, 148 Cal.App.4th at p. 457.) Gonzalez was moved from the outside of the club to the door in order to gain entry. The court noted that, although the robbery of a business owner or employee includes the risk of movement of that person to the location of the valuables in the business, the robbery of this same hypothetical business owner or employee does not include the risk that other individuals will be moved at gunpoint from the relative safety of the outdoors into the business premises for the duration of the robbery. (Ibid.)
In this case, also, it is significant that, although Terbest was not an employee of the Crow's Nest bar, and he was not used to gain entry to the bar, the robbery of Terbest was not the planned underlying crime. The robbers did not simply move him from the alley to the interior of the bar in order to rob him of some property of his that was inside the bar. It is true that, once forced inside, he was robbed along with the other patrons, but the robbery of the bar did not necessarily include the robbery of Terbest as part and parcel of that crime. The robbers intended to rob the bar itself by forcing the bartender to open the cash register. Terbest testified that one of the three gunmen went behind the bar almost as soon as he entered the bar. Therefore, it is clear that Terbest was moved so that the three men could avoid detection. The robbery of Terbest was not incidental to, i.e., not "a necessary or a natural part of" the robbery of the bar. (Salazar, supra, 33 Cal.App.4th at p. 347.)
The fact that the movement of Terbest was less necessary to the robbery than the movement of the maintenance worker in James bolsters our conclusion. The James court observed that the fact that the movement of a robbery victim facilitates a robbery does not imply that the movement was merely incidental to it. (James, supra, 148 Cal.App.4th at p. 454.) James explained: "A movement necessary to a robbery may or may not be merely incidental to it," but "a movement unnecessary to a robbery is not incidental to it at all." (Id. at p. 455 & fn. 6, italics added; see also People v. Corcoran (2006) 143 Cal.App.4th 272, 279-280 [kidnapping for robbery conviction upheld where "the movement of the victims had nothing to do with facilitating taking cash from the [establishment]" and movement of victims "was clearly 'excess and gratuitous'"]; cf. Washington, supra, 127 Cal.App.4th at p. 299 [insufficient evidence of asportation where "there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault"].)
Furthermore, the movement of Terbest clearly subjected him to a substantial increase in the risk of harm above and beyond that inherent in the robbery of the bar. A determination of the increase in the risk of harm involves a comparison of the victim's physical location before and after the asportation. (Salazar, supra, 33 Cal.App.4th at p. 348.) Courts consider such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes in assessing an increase in risk of harm. (Rayford, supra, 9 Cal.4th at p. 13.) The fact these dangers do not ultimately materialize does not mean the risk of harm did not increase. (Id. at p. 14; In re Earley (1975) 14 Cal.3d 122, 132.)
In this case, moving Terbest protected the robbers from the observation of passersby and increased the danger to Terbest. (People v. Jones (1999) 75 Cal.App.4th 616, 629-630.) Terbest testified that he saw an African-American male and female outside in the alley when he went out to smoke a cigarette. They were standing at the corner of the building. If he had not been forced inside he could have run to them for help. Inside the bar, it was a volatile situation, with angry gunmen shouting at the bartender and ordering patrons on the ground. One or more of the patrons or the bartender could have caused one of the robbers to shoot by initiating a confrontation or trying to escape, as Terbest himself did. (Rayford, supra, 9 Cal.4th at p. 13.) Terbest was not shot apparently because he took advantage of a disturbance in the rear of the bar. The increase in the level of mental terror to which he was subjected is obvious. (See People v. Nguyen (2000) 22 Cal.4th 872, 885-886 (Nguyen).) The robbers were also granted an increased opportunity to commit other crimes by Terbest's movement, since they would have been in a greater hurry had he run away in the alley, and they might not have robbed the patrons or even the bar. Terbest was also placed at greater risk of his wallet being taken.
In sum, there was sufficient evidence to support a conviction for kidnapping to commit another crime in violation of section 209, subdivision (b)(1). Therefore, appellants suffered no due process violation. With respect to the section 1118.1 motion, our independent review confirms the trial court did not err in denying it.
IV. Sufficiency of Evidence of Identification and Purportedly Suggestive Identifications
A. Appellants' Arguments
Parker argues that his conviction was based on insufficient identification evidence and violated his due process rights under the federal Constitution. Parker contends the eyewitnesses did not see the robbers, and the field showup was suggestive. Parker points out that he was riding in the backseat of the car with Boyd driving and Williams in the front passenger seat, whereas the items stolen from the victims and the weapons were in the area where Boyd and Williams were seated.
Boyd argues that only Francisco Lopez identified Boyd as the person who pushed him and ran out of the bar at El Paisano, and he agrees with Parker that the field showup was suggestive. Boyd also asserts that eyewitness identification has come under considerable scrutiny, and it should not be sine qua non of a substantial evidence review. Williams also argues that the field showups were unduly suggestive.
B. Relevant Authority
The standard for reviewing the sufficiency of the evidence is set out ante in the second section of this opinion. The same test for substantial evidence is used to determine whether an out-of-court identification is sufficient to support a criminal conviction. (People v. Cuevas (1995) 12 Cal.4th 252, 272.) "[T]he probative value of [a dubious prior identification] and whatever other evidence there is in the record are considered together to determine whether a reasonable trier of fact could find the elements of the crime proven beyond a reasonable doubt." (Id. at p. 274.)
Several adequate safeguards exist that prevent unjust convictions based on unreliable out-of-court identifications, i.e., "the availability of the identifying witness for cross-examination, the opportunity of the defense to present other evidence questioning the reliability of the out-of-court identification and to request appropriate jury instructions, and the requirement that substantial evidence support the conviction." (People v. Cuevas, supra, 12 Cal.4th at pp. 274-275, fn. omitted.) Although out-of-court identifications may have shortcomings, we may not substitute our assessment of the credibility of witnesses for that of the jury. (People v. Roa (2009) 171 Cal.App.4th 1175, 1179-1180.) A defendant bears the burden of showing that an identification procedure was suggestive. (People v. Avila (2009) 46 Cal.4th 680, 699; People v. Cunningham (2001) 25 Cal.4th 926, 989.)
C. Identifications
Fermin Valenzuela testified that the robbers' faces were covered from their eyes down when they entered the El Paisano bar. He could tell that the robbers were African-American males, and he noticed their builds. Before viewing the field showup approximately one hour later, Valenzuela signed a statement regarding each appellant, stating that he was to be shown persons who might or might not be the persons involved in the robbery. When shown the three persons in the field showup, he identified the first one (Boyd) "mainly by the build" and also "the shirt, the jeans, and the weight" and the shoes. He told police, "I think that's one of them." With respect to the second person (Williams), Valenzuela said, "That was the guy that pointed the gun at [me] and made [me] get on the ground." As for the third man (Parker), Valenzuela said, "that was the first guy that walked in and went behind the bar." Valenzuela was not able to identify anyone in court at the preliminary hearing or at trial.
Francisco Javier Lopez testified that he was entering El Paisano through the back door when someone pushed him to the side and exited. The man was carrying something but Francisco did not see it very well. Francisco admitted he told police that one person had a small gun in his right hand, but he refused to repeat this at trial. Francisco also signed three admonition forms. Francisco did not remember what he said at the field showup, but his response was read to him. He told police that he recognized the first person in the showup (Boyd) as the one who pushed him going out of the bar. He recognized the second one (Williams) as the one with a gun. As for the third person (Parker), he said he had not seen him at all. He said under cross-examination that he had only one instant to see the man going out.
Wendy Lopez also signed the admonition forms. When the first person (Boyd) was brought out, she said "that it looked like it was his height and the body." When she saw the second man (Williams), she said that she recognized "the pants that were jeans and the shoes that were white." Wendy did not recognize the third man (Parker). Reyes could not identify anyone.
With respect to the Crow's Nest robbery, Terbest saw three Black males at a distance of approximately 15 feet coming toward the bar as they put on hoodies and bandanas. He testified he was able to see their faces before they put on the masks. There were motion-sensitive flood lights outside the bar where he stood. When asked if he saw any of the three individuals in court, Terbest said he recognized Parker's face from the lineup, but not the other two defendants. He did not know which role Parker played in the robbery. Terbest signed admonition forms for each appellant. Terbest explained that, approximately one hour after the robbery, he was in a police car on one side of an intersection and another officer was in a car on the other side. The officer turned on the lights and, one by one, the men in custody, wearing handcuffs, were placed in front of the witnesses. Terbest identified all three people as being the robbers. He also identified all three men at the preliminary hearing. One of the robbers had on a red and white striped shirt. He acknowledged that the time he had to look at the men's faces in the alley was very short and that, once he entered the door to the bar, he did not again get a good look at their faces.
Anajimmay Lozano, the Crow's Nest bartender, noticed the shoes and the red and white striped "hoodie" of the robber who put a gun to her head and told her to open the cash register. She described that robber as an African-American male about five feet four inches and 17 to mid-20's in age. She was able to identify one by his pants, shoes and build. She said, "I think that's him. He is the same build, same kind of pants, and black Converse shoes." This was Boyd. Juan Noriega from the Crow's Nest did not go to the field showup. Anthony Cepeda went to the field showup but was unable to identify anyone.
In addition to the victims' testimony about their ability to identify the robbers, various police officers testified about the statements the victims made when interviewed after the robberies and about what the victims said at the field showups. The victims' testimony regarding what the officers said to them before asking them to go to the field showups varied between iterations. Terbest testified that an officer said "[we] think we [might have] got the guys." He later said the officer in the car told him, "if you can ID them, you can ID them. If you can't, you can't." He said an officer told him, "We have detained three people . . . they didn't say like, well, these are the guys that robbed the bar. They didn't say that." Terbest acknowledged that appellants were handcuffed and accompanied by a police officer at the showup and that he was "a good distance" from them. Anajimmay Lozano testified that the police "said that they had found them somewhere, asked us if we'd go with them to identify them." After being shown the admonition she signed she acknowledged that the police did not say they had the people who robbed the bar. She also said the suspects were far away. When asked on cross-examination if the police said they had individuals they thought had committed the robbery, Anajimmay said, "Yes. They said that the reason why we were going to identify them is because they could be the people that robbed the bar." However, she did not recall them specifically saying they had caught the people who robbed the bar.
D. Showups Not Unduly Suggestive or Prejudicial
Appellant bears the burden of "showing an unreliable identification procedure." (People v. Ochoa (1998) 19 Cal.4th 353, 412.) "Whether an extrajudicial identification admitted at trial is so unreliable as to violate a criminal defendant's right to due process of law under the Fourteenth Amendment is governed by principles stated in Manson v. Brathwaite (1977) 432 U.S. 98. Those principles—although variously phrased in various state and federal decisions—establish the following structure of analysis. [¶] The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.]" (People v. Gordon (1990) 50 Cal.3d 1223, 1242 (Gordon).)
It is true that there were three, and only three, men in the showup, that they were in handcuffs, and that the witnesses' testimony regarding what the officers told them before the showups sometimes indicated that the officers made suggestive statements. It is also true that on cross-examination, the three defense attorneys tended to ask leading questions such as "did the police say that they had some guys they thought that might have done it, and you were being taken to see if you could make an identification?" When asked these leading questions, the witnesses, perhaps because they were unaware of the implications of suggestiveness in the questions, invariably answered, "Yes." The record shows that all of the witnesses who viewed the showup were given the standard police admonition stating that the persons they were about to view might or might not be the perpetrators. And some of the witnesses, when asked to clarify what the officers told them before the viewing, recited neutral statements made by the officers. The identification procedure took place within an hour after the robbery when the recollections of the eyewitnesses were fresh. (People v. Martinez (1989) 207 Cal.App.3d 1204, 1219.) During the field identification procedure, the witnesses were taken to the detention site individually, thus they did not influence each other. The suspects' clothing was not suggestive since, during the robbery, the men were wearing sweatshirts with hoods but they were not wearing the hoodies during the showup. The much-noted red and white striped shirt was not worn in the showup either, since it was found in the back of their car along with other garments. The witnesses had ample opportunity to observe the eyes and general physical characteristics during the robbery and it was clear that the witnesses relied on these memories for their identifications. The jury was not led to believe otherwise. Under these circumstances, the field showups were not unduly suggestive.
The jury was instructed with CALCRIM No. 226, which told the jury members to consider how well the witnesses could see, hear, or otherwise perceive the things about which they testified. CALCRIM No. 315 told the jury to consider, inter alia, how well the eyewitnesses could see the perpetrators, the circumstances affecting the ability to observe, whether the witnesses were under stress, whether the witnesses and the defendants were of different races, and if there were any other circumstances affecting the witnesses' ability to make an accurate identification. The jury was thus pointed to any potential weaknesses in the identifications, and it was entitled to weigh the evidence as it saw fit. (People v. Mendez (2010) 188 Cal.App.4th 47, 59.)
Significantly, all three appellants were found in the car with loot from the bar robberies. The jury clearly found this evidence more persuasive than the field showup identifications. The jury acquitted appellants of the counts involving robberies at two Subway sandwich shops, despite identifications by employees. One employee (Elsa Martinez) at the Norwalk Subway identified Williams in the lineup and at the preliminary hearing as one of three robbers who robbed the store at gunpoint on November 18, 2008. The robber she identified wore a bandana over his mouth and nose. Another employee (Domingo Garcia) said the three robbers came in yelling and demanding money. He identified Parker in the photos and in the preliminary hearing, although he said he was not sure. He also identified Williams at the preliminary hearing. An employee (Marta Peralez) at a Paramount Subway on November 22, 2008, testified that the store was robbed at gunpoint by four men who rushed in, took all the money, and ran out. Peralez identified Williams in a photographic lineup and at the preliminary hearing as one of the robbers. She also identified Parker at the preliminary hearing. Another Paramount Subway employee (Edgar Ramirez) identified Boyd in a photographic lineup. Yet the jury did not convict on these counts, leading to the conclusion that the jury was not swayed by the identifications alone, but rather by the identifications in conjunction with the fact that appellants were caught red-handed with the spoils of the bar robberies shortly after they committed them. The fact that Parker was in the backseat and most of the loot was in the front seat is an insignificant factor that does not create reasonable doubt.
Even if there may have been some question about the reliability of the identifications, exclusion of the identification evidence would not necessarily be required. (See Gordon, supra, 50 Cal.3d at p. 1243, disapproved on another ground in People v. Edwards (1991) 54 Cal.3d 787, 835.) "'"It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness—an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart—the 'integrity'—of the adversary process. [¶] Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification— including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi."' [Citation.]" (Gordon, at p. 1243.) All three defense counsel cross-examined the witnesses closely and extensively about their ability to identify the suspects.
Factors such as that appellants were led out by a police officer, that they were handcuffed and illuminated by a spotlight and obviously in police custody, and dubious evidence that police officers made suggestive statements did not require exclusion of the evidence. (People v. Floyd (1970) 1 Cal.3d 694, 710, 713-714; In re Carlos M. (1990) 220 Cal.App.3d 372, 386 [during the predisplay admonishment, the officers said nothing unequivocal to suggest the witness would be viewing the attacker]; In re Richard W. (1979) 91 Cal.App.3d 960, 970 [the presence of police officers and use of handcuffs alone is not unduly suggestive]; People v. Burns (1969) 270 Cal.App.2d 238, 246 [identification made while a number of police officers were on the premises is not unduly suggestive].)
Appellants have also failed to show that the field showup was unnecessary. "'Prompt identification of a suspect who has been apprehended close to the time and place of the offense to exonerate the innocent and aid in discovering the guilty is a valid purpose for conducting a . . . showup.'" (Nguyen, supra, 23 Cal.App.4th at pp. 38-39.) A field identification procedure is not inherently unfair and is justified when the police wish to eliminate a detainee and continue to search for the perpetrator of the crime. (People v. Floyd, supra, 1 Cal.3d at p. 714, disapproved on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36; Nguyen, at pp. 38-39.)
"Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable." (People v. Yeoman (2003) 31 Cal.4th 93, 123; Manson v. Brathwaite (1977) 432 U.S. 98, 106-114; People v. Cunningham, supra, 25 Cal.4th at p. 989.) The field showup identifications in this case were not unduly suggestive, and there was no violation of due process in allowing this evidence to be placed before the jury. Accordingly, appellants have not met their burden of establishing that the identification procedure was constitutionally defective. (Ochoa, supra, 19 Cal.4th at p. 412; People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
V. Ineffective Assistance of Counsel Claim Regarding Field Showup Evidence
A. Appellants' Arguments
Williams argues that he was deprived of effective assistance of counsel because reasonably competent counsel would have sought to exclude identification testimony from the witnesses from each of the bars, since they were based on an unduly suggestive showup procedure. He contends that cross-examination and argument alone were an ineffective strategy in the absence of an expert witness to educate the jury about the fallibility of eyewitness memory. Presumably his codefendants join in this argument.
B. Relevant Authority
The burden is on a defendant to establish ineffective assistance by a preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) There are two elements to an ineffective assistance claim. "[A] defendant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.) A reviewing court need not determine whether counsel's performance was deficient before examining whether the defendant suffered prejudice as a result of counsel's alleged deficiencies. (Id. at p. 697.)
C. Counsel Not Ineffective
We believe counsel's performance was not deficient for failing to move to exclude the eyewitness identification testimony. In order to establish that appellants were prejudiced by a failure to move to exclude the evidence from the showup, they must show they would have prevailed on the motion to exclude. (People v. Grant (1988) 45 Cal.3d 829, 864; People v. Gonzalez (1998) 64 Cal.App.4th 432, 438.) Given the fact that evidence from identification showups made under the same conditions as the showups in this case are routinely admitted, appellants cannot make this showing. "Appellant[s] overlook[] the fact that the law favors field identification measures when in close proximity in time and place to the scene of the crime, with the rationale for the rule being stated: "The potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later. Furthermore, because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself." (People v. Anthony (1970) 7 Cal.App.3d 751, 764-765; see also Stovall v. Denno (1967) 388 U.S. 293; People v. Craig (1978) 86 Cal.App.3d 905, 914; People v. Colgain (1969) 276 Cal.App.2d 118, 122, 129; People v. Smith (1970) 13 Cal.App.3d 897, 909; People v. Rodriguez (1970) 10 Cal.App.3d 18, 27; People v. Levine (1969) 276 Cal.App.2d 206, 208.) Since, as we have determined, the identification procedure was not unduly suggestive, we believe defense counsel would not have prevailed on such a motion to exclude. Counsel is not required to make futile objections. (People v. Price (1991) 1 Cal.4th 324, 386-387; People v. Jones (1979) 96 Cal.App.3d 820, 827.) Appellants thus suffered no prejudice from the lack of a motion to exclude the identification evidence.
Moreover, assuming, but not deciding, that trial counsel's performance was deficient for not consulting an expert on eyewitness identification, we disagree with appellants and conclude that they suffered no prejudice from this alleged failure. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . [¶] . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at pp. 693-694; see People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
As noted previously, the jury failed to convict appellants of the Subway restaurant robberies even without an eyewitness identification expert to explain at length the principles contained in CALCRIM No. 315. Merely because an expert might have discussed the factors contained in that instruction, as Williams does at great length in his opening brief, does not necessarily signify that it is reasonably probable a different verdict would have been obtained had the expert testimony been admitted at trial. The factors to be considered in evaluating eyewitness testimony were argued at trial, and the witnesses' testimony was thoroughly attacked on cross-examination and in argument.
Reviewing the entire record, we believe it is not reasonably probable appellants would have achieved a more favorable verdict had their counsel moved to exclude the identification evidence and/or called an eyewitness identification expert to the stand.
VI. Firearm Enhancement on False Imprisonment Count
A. Appellants' Arguments
Parker and Williams argue that the enhancements imposed in count 3 for personal use of a firearm under section 12022.53, subdivision (b) must be stricken. This enhancement applies only to felonies listed in section 12022.53, subdivision (a). The crime charged in count 3, false imprisonment (§ 236), is not one of the listed crimes. Boyd argues that the enhancement must be stricken because it was not pleaded in the information.
Punishment in count 3 was stayed pursuant to section 654 for all three appellants.
B. Enhancements must be stricken
As respondent concedes, appellants are correct in asserting that the section 12022.53, subdivision (b) enhancement does not apply to a violation of section 236. For this reason alone, the enhancements must be stricken. More importantly, however, "[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 1170.1, subd. (e).) The information shows that no enhancement under section 12022.53, subdivision (b) was alleged in count 3. Accordingly, the true finding on the enhancements must be stricken from the record.
In Williams's case, the enhancement was stayed. In Boyd's and Parker's cases, the enhancement is not listed as "charged and found to be true" in count 3. Therefore, only Williams's abstract of judgment need be corrected. The minute orders of judgment must also be amended to indicate that the firearm allegations in count 3 were incorrectly included on the verdict forms.
VII. Sufficiency of Evidence of Firearm Enhancements
A. Appellants' Arguments
Parker points out that the enhancement under section 12022.53, subdivision (b) does not apply to use of a BB gun. Therefore, the enhancements found true by the jury must be reversed because there is only a 66 percent chance he carried the real gun as opposed to the BB gun. Boyd joins in this argument and adds that he himself was never identified by anyone as having held a gun, and he may unfairly stand convicted of personal use of a firearm he did not use. Williams joins in Parker's argument and contends judgment on the enhancement violated his right to due process.
B. Relevant Authority
The law pertaining to sufficiency of the evidence is set out ante in section II of this opinion. Section 12022.53, subdivision (b) provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."
"As used in [section 12022.53, subdivision (b)], '"firearm" means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.' (§ 12001, subd. (b).) [¶] Thus, toy guns obviously do not qualify as a 'firearm,' nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile. (§ 12001, subd. (g).) [¶] The fact that an object used by a robber was a 'firearm' can be established by direct or circumstantial evidence. [Citations.]" (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435-1436.)
C. Evidence of Firearm Use
1. El Paisano Bar Robbery
Valenzuela testified that all three robbers pointed guns at the people in the bar. He said the guns were small and dark. Wendy Lopez also saw all three robbers point guns at the bar patrons. One of the robbers put a gun to her head and pushed back the slide.
2. Crow's Nest Bar Robbery
Terbest testified that all three robbers carried semiautomatic firearms, although he later acknowledged that one of the guns might have been "a .380." At the preliminary hearing, Terbest identified Parker as the robber who pointed the gun at him. He said that Boyd and Williams had guns, but their guns were not pointed at him. Lozano identified appellant Boyd in the field showup as the robber who wore the red and white striped sweatshirt and put a gun to her head.
3. Physical Evidence
When appellants were arrested in the Camry, the police found a BB gun under the front passenger seat where appellant Williams had been sitting. Police found an unloaded .22-caliber semiautomatic firearm in the Camry's center console. During a second search of the Camry, police found a loaded .25-caliber semiautomatic firearm hidden under the center console.
D. Proceedings Below
Detective Gonzalez testified that a BB gun is not a firearm. Prior to argument, all counsel joined in requesting a principal-armed jury instruction as a lesser included offense of the personal-use allegation. During opening argument, the prosecutor told the jury members that they could not use the BB gun as a basis for the personal-use allegation. She explained that the personal-use allegation had to be a firearm and that a BB gun is not a firearm. "But . . . I want you to think about those crimes and look at the evidence, which witnesses felt a real gun to the back of their head, to their temple, to their back." The prosecutor argued that appellants were running around the bars robbing people and that they passed around the guns.
During sentencing for appellant Parker, the prosecutor reminded the court that there were two real firearms and one BB gun in the car. She stated, "However, all three defendants were identified as having firearms during the commission of both the Crow's Nest and the El Paisano takeover robberies. It's very possible that Mr. Parker used the firearm. That they were passed around."
The trial court stated that the issue of personal use was a very difficult one. The court gave great weight to the jury's true finding on personal use and decided to follow the jury's finding since the jury members had all the facts. The trial court believed there was sufficient factual basis for the jury to find that each of the defendants personally used a firearm. At Williams's sentencing, the trial court denied his request to strike the allegation and found that there was substantial evidence in support of the jury's true finding. At Boyd's sentencing, the trial court stated, "While there is some conflict, that is two real guns being found and one BB gun being found in the vehicle shortly after the robberies occurred. The question before the court is was there substantial evidence for the jury to find each of these individuals using a firearm, personally using a firearm during the course of the robbery. And the court finds that there was. And so therefore the court's not going to disturb the jury's finding of true under that."
E. Evidence Insufficient
In the instant case, it is impossible to ascertain which of the three appellants used the BB gun and which used the firearms during the two bar robberies. The guns may indeed have been switched among appellants from one bar to the other. To convict on the ground that the guns may have been passed around within each bar, however, amounts to speculation, and "'speculation is not evidence, less still substantial evidence.'" (People v. Waidla (2000) 22 Cal.4th 690, 735.) Given the fact that appellants were found inside the Camry within a very short time after the second robbery, still going through their takings, it would also be speculation to assume that they had somehow disposed of another firearm or firearms between El Paisano bar and Gaviota Avenue. "'In any given case, one "may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."'" (People v. Perez (1992) 2 Cal.4th 1117, 1133.)
We conclude, therefore, that the firearm enhancements for personal use must be stricken, and the armed principal firearm enhancements under section 12022, subdivision (a)(1), with which the information was orally amended and which were included in the jury instructions and on the verdict forms, must be imposed instead. (CALCRIM No. 3115.) In Williams's and Boyd's cases, the trial court stayed, presumably in all applicable counts, the terms under section 12022, subdivision (a)(1). In Parker's case, the trial court failed to impose and stay the armed principal enhancement under section 12022, subdivision (a)(1). Since this amounted to an unauthorized sentence, however, we may correct this error, and it is not an impediment to imposing the armed principal enhancement in Parker's case. (See People v. Sinclair (2008) 166 Cal.App.4th 848. 854 ["under [People v. ] Gonzalez [(2008) 43 Cal.4th 1118], the trial court was obliged to impose and stay the one-year armed principal enhancement pursuant to section 12022, subdivision (a)(1)" when imposing the greater 10-year enhancement under section 12022.53].)
Given our conclusion on this issue, we need not address appellants' arguments that the trial court failed to instruct the jury that a BB gun is not a firearm by either modifying the enhancement instruction or giving another instruction, and that counsel were ineffective for failing to request a pinpoint instruction directing the jury to the question of which of the three appellants used a firearm.
VIII. Prosecutor's "Mona Lisa" Argument
A. Appellants' Arguments
Parker argues the prosecutor committed misconduct during closing argument by conducting a demonstration with a photograph of the Mona Lisa in which she covered up all but the Mona Lisa's eyes. Parker argues that this was a deceptive technique. Furthermore, the trial court abused its discretion when it permitted the demonstration over the objection of the defense. Williams joins Parker's argument, and if this court should deem his argument forfeited, he contends his counsel was ineffective for failing to preserve the error. Boyd also joins in Parker's argument and argues that any objection by his attorney would have been futile.
B. Proceedings Below
During closing argument, the prosecutor argued: "And I wanted to demonstrate for you the difference between describing someone and recognizing someone. Aaron Terbest wasn't really able to give a full description of the different colors of clothing or so forth. He was able to describe guns, and he was able to recognize all three defendants. And counsel, they've tried to trip him up with saying, at prelim you said you saw them with masks on or bandanas. And here in court you're saying they were getting ready. Well, Ladies and Gentlemen, all along he's been consistent in that. When they were coming up to him, they were hooding up. They were masking up. They were getting ready. He was able to see their faces, and he recognized them. Now, I'm going to give you a little demonstration here. And I want you to think about the Mona Lisa. It's a famous painting hanging in France in the Louvre. I'm sure we all [sic] seen it in TV, books, Internet. And think in your mind of the Mona Lisa. Which way is her hair parted? What color are her eyes? Does she have like a scoop neck or a square neck top on? How long are her sleeves? Are her hands crossed? Is there anything on her head? What's in the background of the painting? The mountains, trees, animals, water? Can you describe that painting to us? Or will you recognize it? I want to show you the eyes of the Mona Lisa. Do you recognize that painting, Ladies and Gentlemen? Do you have any reasonable doubt? Sure doesn't look like Picasso. Now, I want to take away what you couldn't see before, and I want you to look at the details. What descriptions were you right about in your mind? What were you wrong about? Did you notice she doesn't even have eyebrows? She has a veil over her head, and she's actually wearing a cloak. Ladies and Gentlemen, you're able to recognize this painting even if you're unable to describe it. And that is what happens in real life with people. That's exactly what happened with the witnesses in this case when they came to court and said they recognized the defendants."
None of the defense attorneys objected to this line of argument. After the prosecutor had ended her closing argument, Parker's attorney, Mr. Barrett, objected to the use of the Mona Lisa photograph, stating it was not evidence in the trial. He asked for a mistrial or the opportunity to give a 30-second surrebuttal. The trial court denied the request.
C. Relevant Authority
"The applicable federal and state standards regarding prosecutorial misconduct are well established. '"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
The general rule requiring assignment of misconduct and a request for jury admonishment does not apply if a defendant's objection or request for admonition would have been futile or would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) It also does not apply when the trial court promptly overrules an objection, resulting in the defendant's having no opportunity to request an admonition. (Ibid.)
D. No Misconduct; No Prejudice
We first observe that the defense made no objection based on prosecutorial misconduct below and requested no curative admonition. As a result, this claim was forfeited. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) The only objection made, postargument, was that the Mona Lisa was not part of the evidence at trial. This argument was not a valid one, since prosecutors are entitled to state matters not in evidence during argument, including matters that are illustrations drawn from history or literature, and, presumably, art. (People v. Friend (2009) 47 Cal.4th 1, 38; People v. Thornton (1974) 11 Cal.3d 738, 763.) In any event, appellants' claims have no merit.
As the record shows, the prosecutor employed the Mona Lisa analogy to explain to the jury in closing argument the difference between recognizing someone and describing someone. The language quoted above shows there was no reasonable likelihood that the jury construed or applied the prosecutor's remarks in a manner prejudicial to appellants. "[W]e 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.) It is well established that a prosecutor enjoys wide latitude during argument to describe the deficiencies in defense counsel's tactics and in counsel's version of the facts. (People v. Bemore (2000) 22 Cal.4th 809, 846; People v. Sassounian (1986) 182 Cal.App.3d 361, 396.) During argument, the prosecutor may state matters that are common knowledge or based on common experience. (Sassounian, at p. 390.) The prosecutor here was reminding the jury of a phenomenon commonly experienced by people when called upon to describe someone. The prosecutor was also attempting to persuade the jury of the inadequacy of the defense case, which consisted almost entirely of attacking the victim eyewitnesses. It is not misconduct to urge the jury not to be misled by the defense evidence and defense counsel's characterization of it. (People v. Cummings (1993) 4 Cal.4th 1233, 1302.)
Moreover, "even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, do[es] not constitute misconduct." (People v. McDaniel (1976) 16 Cal.3d 156, 177; People v. Hill (1967) 66 Cal.2d 536, 560-561.) In such circumstances, the prosecutor "cannot be charged with misconduct if his comments only spill over somewhat into a forbidden area; the departure from propriety must be a substantial one." (People v. Hill, at p. 561.) Here, the prosecutor was merely rebutting the vigorous attacks by the three defense attorneys on the ability of the witnesses to identify the robbers, as well as on the witnesses' veracity.
In addition, the trial court instructed the jury with CALCRIM No. 222, as well as during argument, that the attorney's arguments are not evidence. We presume that the jury followed the court's instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) The prosecutor's comments did not constitute "'"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury,'"'" nor did they "'infect the trial with such unfairness as to make the conviction a denial of due process." (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
In any event, even when prosecutorial misconduct occurs, reversal is not required unless the defendant can show he suffered prejudice. (See People v. Arias (1996) 13 Cal.4th 92, 161.) Appellants must show that it is reasonably probable they would have obtained a result more favorable in the absence of the misconduct. (Ibid.)
Applying these standards to the instant factual setting, we conclude that no prejudice resulted from the prosecutor's comments. The prosecutor's remarks about the Mona Lisa as an illustration of the difference between recognizing a person as opposed to describing a person did not affect the verdict and were harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable appellant would have obtained a more favorable result absent the alleged misconduct].) As stated previously, the evidence against appellants was very strong, even without the identifications made by the eyewitnesses. The jury acquitted appellants of two restaurant robberies against multiple victims who identified appellants, signaling that the jury carefully evaluated the evidence. We reject appellants' arguments regarding prosecutorial misconduct.
IX. Doubling of Boyd's Enhancements
A. Boyd's Argument
Boyd, who was sentenced as a second-strike defendant, argues that the trial court erred in doubling his firearm-use enhancements pursuant to the Three Strikes law. (§ 667, subds. (e)-(i).)
B. Proceedings Below
As previously noted, Boyd admitted a prior strike conviction for robbery. The trial court chose count 4 as the principal term and sentenced Boyd to the upper term of five years and 10 years for the firearm enhancement, for a total of 15 years in that count. The trial court then doubled the entire sentence to 30 years in count 4. Likewise, in counts 5, 6, 8, 9, 10, and 11, the trial court sentenced Boyd to one year for the robbery convictions (one-third the midterm) and three years four months each for the consecutive firearm-use allegations (one-third the 10-year enhancement). In each of these counts also, the trial court doubled the entire sentence in each count.
C. Sentence Incorrect
The plain words of section 1170.1, subdivision (a) indicate that the terms for the offenses themselves must be doubled for a "'second strike'" defendant, but no term for an enhancement is doubled. (People v. Dominguez (1995) 38 Cal.App.4th 410, 424.) As a result, Boyd's sentence is unauthorized and may be corrected at any time, regardless of whether he objected during sentencing. (People v. Smith (2001) 24 Cal.4th 849, 854.) Therefore, Boyd's sentence is reduced not only due to the striking of the enhancements under section 12022.53, but also because the armed principal enhancement is not doubled.
X. Cumulative Error
Williams argues that the cumulative impact of the errors deprived him of a fair trial. Boyd and Parker presumably join in this argument. We find no merit in appellants' cumulative error argument. Our review of the entire record assures us that appellants received due process and a fair trial. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006.) There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. As the California Supreme Court has stated, "A defendant is entitled to a fair trial, not a perfect one." (People v. Mincey (1992) 2 Cal.4th 408, 454.)
XI. Clerical Errors in Abstracts of Judgment
All of the appellants and respondent point to various errors in the abstracts of judgment, each with a different degree of thoroughness. Although the Court of Appeal can correct clerical errors in the abstract of judgment at any time in order to reflect the oral pronouncement of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185), the modifications to the judgments in this case render moot several of appellants' complaints.
Nevertheless, we note that, apart from the sentencing errors already discussed, there are numerous other errors in the abstracts of judgment—in fact, too numerous to mention. These errors include the use of incorrect forms for the determinate and indeterminate sentences, the incorrect recording of the sentences in the various counts, the incorrect recording of the sentence enhancements imposed or stayed, the tendency to ignore portions of the abstract, incorrect calculations of the total number of years on the determinate terms and on the individual pages of the determinate abstract, the erroneous inclusion of stayed sentences for counts 13 and 14 for Williams even though he was not charged in these counts, the failure to record the requirement for DNA testing, the failure to list enhancements for Boyd's prior conviction and probation violation, and many others. Since portions of the sentences in this case are to be amended, the superior court has the opportunity to carefully complete the abstracts of judgment in these three sentences.
DISPOSITION
The judgments are modified as to all three appellants to reduce the convictions for robbery in violation of section 211 in count 8 to attempted robbery in violation of sections 664 and 211. Appellants' sentences in count 8 are therefore modified to one-third of one-half the midterm of three years, i.e., six months, and Boyd's term in count 8 is to be doubled. The judgments are modified to strike the true findings on the section 12022.53, subdivision (b) enhancements tied to count 3, since no firearm enhancements were alleged in count 3 in the information. The enhancements imposed under section 12022.53, subdivision (b) in counts 1, 2, 4 through 6, and 8 through 11 are stricken for all three appellants due to insufficient evidence. The stay is lifted from the enhancements under section 12022, subdivision (a)(1) in counts 1, 2, 4 through 6 and 8 through 11, and this one-year enhancement is to be imposed in the subordinate counts in accordance with section 1170.1, subdivision (a). Boyd's firearm enhancements are not doubled. In all other respects, the judgments are affirmed. The abstracts of judgment are to be amended to conform to the sentences.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________, P. J.
BOREN
We concur:
___________________, J.
DOI TODD
___________________, J.
ASHMANN-GERST