Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C158359.
Jones. P.J.
James Pablo Patterson appeals from a judgment entered after a jury convicted him on three counts of second degree robbery. (Pen. Code, § 211.) He contends his conviction must be reversed because (1) the trial court erred when it admitted evidence of his prior contacts with the police, (2) the court erred when it admitted evidence that he committed an uncharged robbery, (3) the court erred when it refused to sever the trial of one of the counts that had been charged, and (4) he received ineffective assistance of counsel. We conclude no prejudicial errors were committed at appellant’s trial and will affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of robbing three small businesses in Alameda during a two week crime spree in early 2007.
A. Count One
On January 31, 2007, around 8:20 p.m., Joseph Li was working at the Video Factory in Alameda when appellant entered the store, pointed a knife at him, and demanded “all the money in the register[.]” Li opened the register and gave appellant between $300 and $400. Appellant left the store, got on a bike, and fled.
Li called the police. He described the robber as being a Caucasian or Hispanic man in his mid to late 20’s around six feet tall weighing 160 to 170 pounds who was wearing a light gray beanie and who had a dark brown mustache.
The police located a suspect who matched that description and took him to Li to see if he could identify him. Li said the man was not the robber.
A couple of weeks later, Li went to the police station to view a photo line-up. Li identified appellant as the man who had robbed him.
Li later testified at appellant’s preliminary hearing. He was not able to identify appellant in the courtroom, but he was 100 percent sure that he had selected the right person in the photo line-up.
Subsequently at trial, Li identified appellant as the man who had robbed him. He said his memory had been refreshed because he had read over his statement again.
B. Count Two
On February 10, 2007, near 9:15 p.m., Ronald Sychangco was working at the Harbor Bay Union 76 gas station in Alameda when appellant entered the store, went behind the counter and said, “Give me all your money.” Appellant threatened Sychangco with a knife. Sychangco opened the register and gave appellant about $700. Appellant then demanded any personal money that Sychangco might have. Sychangco gave him $10. Appellant told Sychangco to open the store’s vault. As Sychangco moved toward the vault, he ran out of the store suddenly and started yelling that he was being robbed.
Alexander Herrera and a friend were at the gas station that evening. He saw Sychangco run out of the store yelling that he was being robbed, and he saw a man run out behind him. The man ran across the street, got into a early model Jetta or Passat and drove away. Herrera and his friend got into their car and tried to follow the robber, but they lost him. Herrera never got a good look at the robber’s face.
Meanwhile, Sychangco called the police. He described the robber as a Hispanic man in his 20’s, between 5 feet 9-10 inches tall, with a short black mustache and wearing a beanie.
On February 16, 2007, Sychangco viewed a photo line-up but he was not able to identify anyone. However, Sychangco was able to identify appellant as the man who robbed him at appellant’s preliminary hearing and at trial. At trial, Sychangco also testified about a surveillance video of the robbery that was played for the jurors. He identified appellant as the robber who was depicted in the video.
C. Count Three
On February 15, 2007, near 9:50 p.m., Angelito Tanjuakio was working at the Harbor Bay Union 76 gas station in Alameda when appellant came in, pointed a black gun at him, and demanded money. Tanjuaiko took about $700 from the register and gave it to appellant who fled.
Tanjuakio called the police. He described the robber as a Mexican or Caucasian, between 5 feet 7-8 inches tall, medium build with a mustache.
Tanjuakio was able to identify appellant as the man who robbed him in a photo line-up, at appellant’s preliminary hearing, and at trial. At trial, Tanjuakio also testified about a video of the robbery that was captured by a surveillance camera. He identified appellant as the robber who was depicted in the video.
D. Uncharged Crime and Investigation
On February 15, 2007, near 10:00 p.m., (i.e., about 10 minutes after the crime charged in count three) Bemnet Haile was working at the Arco AM/PM gas station on Park Street in Alameda when a man walked in, pointed a black gun at him, and said, “Money money.” Haile gave the man about $1,500. The man fled. Haile called the police.
The following day, Sergeant Joseph McNiff of the Alameda Police Department learned that two gas stations had been robbed the night before and that there was video surveillance from both. McNiff watched both videos and determined that appellant was the robber in each. McNiff recognized appellant because he had many encounters with him during the course of his work.
Later that day, Sergeant McNiff asked Sergeant Hosh Durani of the Alameda Police Department to watch the videos. Durani did so and he too identified appellant as the robber in both. Durani had known appellant for years and he recognized him immediately. Durani said there was no doubt that appellant was the person depicted in both videos.
The police set up a surveillance of appellant’s house. A green Jetta was parked outside, and the police knew that a similarly colored Jetta had been involved in one of the Union 76 robberies. At some point, appellant peered out his window and appeared to understand that he was being watched. Sergeant Durani called appellant and told him to come out with his hands up. Appellant tried to flee through the backyard, but he was captured and taken into custody.
Appellant’s mother allowed the officers to search appellant’s bedroom. The officers found a knit beanie cap, a sweatshirt, a razor type cutting tool, and a key that fit the Jetta in the driveway. The cap and sweatshirt matched ones that were depicted in the surveillance videos. The police also found a box of shotgun shells in the bedroom closet.
Based on these facts, an information was filed charging appellant with three counts of second degree robbery and one count of being a felon in possession of ammunition. As amended, and is relevant here, the information alleged appellant had personally used a weapon when committing the first two robberies (§ 12022, subd. (b)(1)), that he had one prior serious felony conviction (§ 667.5, subd. (a)(1)), that he had one prior strike (§ 1170.12, subd. (c)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)).
The case proceeded to trial where a jury convicted appellant on all three robbery counts and found the use allegations to be true. The jurors acquitted appellant on the ammunition count. Appellant admitted the prior conviction allegations.
Subsequently, the court sentenced appellant to 20 years, 4 months in prison.
II. DISCUSSION
A. Prior Contacts with the Police
At the beginning of trial, defense counsel asked the court to exclude evidence that appellant was on parole when he was arrested, and to prevent Sergeant McNiff from testifying that appellant had acted violently in the past. Defense argued that evidence was inadmissible under Evidence Code sections 1101 and 352. The prosecutor countered that appellant’s prior contacts with Sergeants McNiff and Durani were relevant because they bolstered the officers’ ability to identify appellant in the surveillance videos. The trial court overruled appellant’s objection ruling that appellant’s prior contacts with the police were admissible to prove “the [officers’] knowledge of the defendant, how they know the defendant.”
Subsequently at trial, Sergeant McNiff described some of the prior contacts he had with appellant. McNiff said that in 2002 or 2003, he had a 15 minute encounter with appellant in connection with a stolen vehicle incident for which appellant had been arrested. Prior to that, McNiff had seen photos of appellant that indicated he was involved in some activity concerning stolen vehicles. Later in 2003, the police were looking for appellant because he had been involved a “couple of different incidents”. McNiff and other officers saw appellant and tried to stop him, but appellant resisted. A fight followed during which the officers used pepper spray on appellant and hit him with a baton. Sergeant Durani testified that he knew appellant because appellant was a parolee and one of his jobs was to monitor parolees who had been released from the California Department of Corrections.
Appellant now contends the trial court erred when it admitted evidence that he was “a car thief, was a parolee at large, had been incarcerated by the Department of Corrections, and had gotten into a violent brawl with police officers.”
The rules governing the admissibility of evidence of uncharged misconduct “are familiar and well settled. Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.’” (People v. Gray (2005) 37 Cal.4th 168, 202.) The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. (People v. Brown (1993) 17 Cal.App.4th 1389, 1395.) “Because this type of evidence can be so damaging, ‘[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.’ [Citation.]” (People v. Daniels (1991) 52 Cal.3d 815, 856.)
“We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Applying these principles, we conclude the trial court here did not err. The prosecutor presented the evidence in question to help prove that appellant was the person depicted in the surveillance videos. The identity of the robber was not only material, it was the primary issue at the trial.
The prior incidents of misconduct tended to prove the material fact at issue. Sergeants McNiff and Durani said they were positive that appellant was the robber who was depicted in the surveillance videos. The prior incidents of misconduct about which appellant complains tended to explain why McNiff and Durani were able to identify appellant in the video recordings so quickly and certainly.
Thus this issue turns on the third factor; i.e., whether there is any rule or policy that would require the exclusion of the evidence appellant has identified. (People v. Brown, supra, 17 Cal.App.4th at p. 1395.) Appellant argues that two such policies apply here. First, he relies on what is sometimes described as the “rule of necessity” under which evidence can be excluded if it is “merely cumulative with respect to other evidence which the People may use to prove the same issue....” (People v. Thompson (1980) 27 Cal.3d 303, 318.) Appellant contends that evidence of his prior contacts with the police was cumulative because Sergeant McNiff and Sergeant Durani both indicated that they had known appellant for years. Appellant contends that under those circumstances “[t]here was no necessity to bolster that level of knowledge with evidence of parolee status or the commission of other offenses.” We disagree. While McNiff and Durani both indicated they had known appellant for a significant period of time, the reasons for that knowledge were relevant. As the prosecutor noted when arguing this issue to the court, there is a difference between knowing someone on a causal basis and knowing someone because of multiple and varied prior law enforcement contacts. The trial court reasonably could conclude that the variety and extent of appellant’s prior contacts provided heft to the testimony of Sergeants McNiff and Durani and helped explain why they were able to identify appellant so quickly and with such certainty. We conclude the court did not abuse its discretion. (People v. Cole, supra, 33 Cal.4th at p. 1195.)
Alternately, appellant contends the prior instances of misconduct should have been excluded under Evidence Code section 352.
Once a court determines that a prior bad act is admissible under Evidence Code section 1101, subdivision (b), it must conduct a further inquiry. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210.) Evidence of uncharged offenses is so prejudicial that its admission requires extremely careful analysis. (Ibid.) To be admissible such evidence must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. (87 Cal.App.4th at p. 1210 .) A court must therefore also examine whether the probative value of prior bad act evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Id. at p. 1211.) The trial court’s exercise of its discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion. (People v. Brown, supra, 17 Cal.App.4th at p. 1396.)
Here, appellant contends the trial court abused its discretion because the evidence at issue was not probative. This is so, appellant argues because “The jury was put in the perfect position to decide on its own whether appellant, sitting right in front of their eyes, was the robber or robbers depicted in the videos that they were watching with their own eyes.” However, this argument fails to take into account a significant fact. Appellant had changed his appearance since the robberies in question. At the time of trial he had put on considerable weight and he had grown a beard. Thus, it would have been more difficult for the jurors to determine whether appellant was the person depicted. Under these circumstances, we conclude the trial court did not abuse its discretion when it declined to exclude the evidence.
Appellant also argues the court abused its discretion because the prejudicial nature of the uncharged misconduct was great. We are not persuaded. Much of the uncharged misconduct was not particularly prejudicial. Vague allegations that appellant had been “arrested” in connection with a stolen vehicle, that he had been “involved” in “some [ ] activity” concerning stolen vehicles, and that he was on parole for some unspecified offense were not likely to have prejudiced the jurors significantly. Appellant’s physical altercation with the police is more serious and presented a greater potential for prejudice. But again, the vague nature of that incident lessened its potential prejudicial effect. On this record, we cannot conclude the trial court abused its discretion when it failed to exclude the evidence in question under Evidence Code section 352.
Having reached this conclusion, we need not determine whether any possible error the court may have committed was harmless.
B. Evidence that Appellant Committed a Different Crime
Prior to trial, the prosecutor filed a motion asking that she be permitted to introduce evidence that appellant robbed the AM/PM gas station on Park Street in Alameda about 10 minutes after the robbery that was charged in count three. The prosecutor argued there were so many similarities between the charged crimes and the uncharged crime that the latter was admissible to prove identity, a common plan or scheme, and intent.
The trial court ruled that it would admit evidence of the uncharged AM/PM robbery to prove a common plan or scheme and intent, but not identity. The court explained its ruling as follows: “there’s no real distinct characteristic that distinguishes this robbery from any other robbery. [¶] And more importantly, certainly does not distinctively say that the defendant is the perpetrator. [¶] So, the similar will come in for... intent and common scheme and plan, but not for identification.”
Prior to admitting evidence of the AM/PM gas station robbery into evidence the court instructed the jurors with CALJIC No. 2.50 as follows: “Evidence... will be introduced for the purpose of showing the defendant committed a crime other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offenses in this case which would further tend to show the existence of the intent, which is a necessary element of the crimes charged, for the limited purpose for which you may consider such evidence.” The court provided the jurors with a similar instruction at the conclusion of the trial.
Appellant now contends the trial court erred when it admitted evidence of the uncharged AM/PM robbery.
Evidence Code section 1101, subdivision (a), “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Evidence Code section 1101, subdivision (b), clarifies, however, that this rule “does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) “‘[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes.... only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’” (People v. Carter (2005) 36 Cal.4th 1114, 1147.) On appeal, the trial court’s determination whether evidence is admissible pursuant to Evidence Code section 1101, subdivision (b), as well as its evaluation whether the probative value of the evidence was outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury are reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)
Here, while the trial court ruled that evidence of the uncharged robbery was admissible to prove a common plan and intent, it is questionable whether the evidence was properly admitted on those issues. Our Supreme Court has stated that “in most prosecutions for crimes such as... robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value.” (People v. Ewoldt, supra, 7 Cal.4th at p. 406.) As for intent, the evidence in this case unequivocally demonstrated that the robber, whoever he was, intended to rob his victims. A strong argument can be made that evidence of the uncharged robbery was cumulative on an issue that was not truly in dispute. (Cf. People v. Balcom (1994) 7 Cal.4th 414, 422-423.)
We also question the court’s conclusion that evidence of the prior crime was inadmissible on the issue of identity. While the highest degree of similarity is necessary when uncharged misconduct is used to prove identity (People v. Ewoldt, supra, 7 Cal.4th at p. 403), here there were many similarities between the robbery charged in count three and the uncharged robbery. Both occurred at gas stations in Alameda. Both were committed on the same night and only minutes apart. In both instances the robber demanded money and threatened the person at the register with a black gun. Both robbers were dressed similarly. Both robberies were recorded by a surveillance camera and in both instances, police officers who knew appellant were able to identify him as the robber who was depicted in the recordings. On this record, the court would have been justified in ruling that the evidence was admissible on the issue of identify. (Cf. People v. Rogers (1985) 173 Cal.App.3d 205, 212-213.)
However, we need not reach those issues because any possible error the court may have committed was harmless. The evidence in this case was simply overwhelming. The victim in count one, Joseph Li, identified appellant in a photo line-up and at trial. He was certain appellant was the man who robbed him. The victim in count two, Ronald Sychangco, identified appellant at his preliminary hearing and at trial. The victim in count three Angelito Tanjuakio identified appellant in a photo line-up, at his preliminary hearing, and at trial. Surveillance cameras captured the robberies charged in counts two and three. The victims in those counts, Sychangco and Tanjuakio, both testified that appellant was the robber who was depicted in the recordings. Sergeant Durani, who had known appellant for many years, testified appellant was the robber who was depicted in the video of the robbery charged in count three. Sergeant McNiff, who also knew appellant because of prior law enforcement contacts, also testified appellant was the robber who was depicted in the video of the robbery charged in count three. Police searching appellant’s room found a cap and sweatshirt that were similar to those depicted in a surveillance video of one of the robberies. The car in appellant’s driveway was similar to one that was used in one of the robberies. The keys to that car were in appellant’s bedroom. When appellant was confronted by the police, he tried to flee, thus showing consciousness of guilt. On this record we do not hesitate to conclude it is not reasonably probable appellant would have achieved a more favorable result absent the error alleged. (People v. Watson (1956) 46 Cal.2d 818, 836.) Any possible error the court may have committed when it admitted evidence of the uncharged burglary was harmless.
Finally on this issue, appellant contends the trial court’s admission of the uncharged robbery was so serious as to violate his due process rights. The erroneous admission of evidence violates due process only if it renders a trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.) We cannot reach that conclusion here. As we have noted, evidence of the uncharged robbery was admissible, albeit on a different issue than that identified by the court. Evidence of the uncharged robbery was not significantly different from or more prejudicial than the charged crimes. Furthermore, the evidence that appellant committed the robberies was overwhelming. On this record, we cannot conclude appellant’s trial was fundamentally unfair. Appellant’s due process rights were not violated.
C. Request to Sever
At the beginning of trial, defense counsel asked the court to sever the trial of count four, charging appellant with being a felon in possession of ammunition, from the trial of the three robbery counts. Counsel argued that allowing all four counts to be tried together would be prejudicial because the jurors would learn that appellant had “some kind of... unspecified prior felony conviction.”
The prosecutor opposed the motion arguing that there was nothing particularly inflammatory about the possession of ammunition charge.
The trial court denied defense counsel’s motion explaining its decision as follows: “The court, under [section] 954, has discretion to sever in the interest of justice and for good cause shown. Here defendant was arrested in count four. There are facts connecting the defendant to the three counts of 211. It’s not likely to inflame because the other three charges of robberies, two of them with use of a weapon, it doesn’t appear as though from the facts stated that I know, and it’s stated by the attorneys, that the weak case is being coupled with the stronger case. The court finds no substantial danger of prejudice.”
In light of this ruling, appellant stipulated that he had suffered a prior conviction to prevent the jurors from learning the nature of that prior. Subsequently, the court instructed the jurors that appellant had stipulated that he had a prior conviction, and that they must not “speculate as to the nature of the prior conviction. That is a matter which is irrelevant and should not enter into your deliberations.”
Appellant now contends the trial court erred when it denied his motion to sever the trial of count four from the three robbery counts.
We need not address this argument specifically because any possible error the court may have committed was harmless. As we have stated, the evidence against appellant on the robberies, consisting of eyewitness testimony, physical evidence, and video evidence, was extraordinarily strong. Furthermore, in closely analogous circumstances, our Supreme Court has stated that a charge, “alleging that defendant possessed a firearm as an ex-felon is not unusually inflammatory or prejudicial.” (People v. Cunningham (2001) 25 Cal.4th 926, 985.) Indeed, the fact that the jurors acquitted appellant on the possession count clearly demonstrates the jurors “considered and weighed the evidence carefully as to each charge separately.” (People v. Moore (1986) 185 Cal.App.3d 1005, 1013.) Under these facts, we do not hesitate to conclude that it is not reasonably probable that appellant would have achieved a more favorable result if the possession of ammunition count had been severed. (People v. Manriquez (2005) 37 Cal.4th 547, 576.) Any possible error the court may have committed was harmless.
D. Effectiveness of Counsel
Appellant contends his conviction must be reversed because trial counsel provided ineffective assistance of counsel.
The standard of review we must apply is settled. A defendant who contends he received ineffective assistance has the burden of proving that (1) trial counsel’s performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) An appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: “‘[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ’ the claim on appeal must be rejected. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 936, quoting People v. Pope (1979) 23 Cal.3d 412, 426.)
Here, appellant contends trial counsel was ineffective in two respects. First, he contends that if we should determine that any of the prior allegations of error he has made were forfeited because trial counsel failed to object, then trial counsel was ineffective because he failed to make those objections. We have not ruled that any of appellant’s prior claims were forfeited due to trial counsel’s failure to object. There was no ineffective assistance on this ground.
Second, appellant contends trial counsel was ineffective because he failed to ask the trial court to instruct the jurors on how they should view the evidence that he had prior contacts with law enforcement personnel, (i.e., that he was a parolee, that he had had previously been incarcerated, that he had been arrested for car theft, and that he had a physical altercation with the police). Specifically, appellant contends trial counsel should have asked the court to instruct the jurors that that evidence was admitted only to explain how Sergeants McNiff and Durani were able to recognize him so readily.
Appellant contends counsel should have asked the court to instruct as follows:
We are unpersuaded. The record does not explain why counsel acted as he did, and it is entirely possible defense counsel made the tactical decision not to seek the instruction appellant suggests believing it would only call attention to the evidence appellant has identified. That choice would be reasonable and certainly would not constitute ineffective assistance. (Cf. People v. Bonilla (1985) 168 Cal.App.3d 201, 206.) We conclude appellant has failed to carry his burden of demonstrating that trial counsel was ineffective.
E. Cumulative Error
Appellant argues that even if the individual errors he has alleged were not prejudicial, when they are considered cumulatively, they require a reversal of the judgment. We have rejected most of the arguments appellant has advanced. Considered cumulatively, the few errors we have identified do not require reversal. (Cf. People v. Leonard (2007) 40 Cal.4th 1370, 1431.)
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.
“[Evidence] has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial.
“This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose to show... the officers’ ability to identify appellant by sight.”