Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF065558, Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry J.T. Carlton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KING J.
I. INTRODUCTION
A jury found defendant Ricardo Carranzo Perez guilty as charged of three counts of second degree robbery (Pen. Code, § 211), and found he personally used a firearm in two of the robberies (§ 12022.53, subd. (b)). The robberies occurred on May 6, 11, and 13, 2009, at stores in Palm Desert, La Quinta, and Palm Springs. Defendant admitted he was released on bail at the time of the robberies. (§ 12022.1.) He was sentenced to 20 years 4 months in prison, and appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant claims (1) the court erroneously allowed a witness, Griselda Rodriguez, to testify she feared retaliation for testifying; (2) insufficient evidence supports the firearm enhancements; (3) the prosecutor committed Griffin error during his closing statement; (4) the court erroneously allowed the investigating officer to opine that defendant committed the robberies; and, finally, (5) the cumulative effect of the errors requires reversal. We find no prejudicial error and affirm the judgment in all respects.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
II. THE EVIDENCE PRESENTED AT TRIAL
A. The AM/PM Robbery
Around 8:00 p.m. on May 6, 2009, defendant came into an AM/PM store in Palm Desert. Store employee Griselda Rodriguez became nervous and suspicious because defendant was “looking around” at the store’s surveillance cameras. Rodriguez did not know defendant but had seen him in the store before.
Later that evening, around 10:00 p.m., defendant came into the store again. This time, he was dressed differently; he was “covered up” and wearing a hat and gloves. Rodriguez was in the hallway cleaning the restrooms. She had just taken her cellular telephone out of her pocket when she turned and saw defendant behind her, holding a gun in one hand and a crowbar in the other. He pointed the gun at her and said, “Don’t even try it, bitch.”
Rodriguez feared defendant was going to shoot her, so she ran to the back of the store and got into the freezer. She called 911 and did not come out of the freezer until police officers told her it was safe. Defendant took approximately $67 from the register and left the store before the police arrived. On May 18, Rodriguez identified defendant from a photographic lineup. Rodriguez also identified defendant as the robber at trial in October 2009.
B. The Chevron Station Robbery
During the evening of May 11, 2009, Nidya Cardenas was working as a cashier in a Chevron gas station in La Quinta when a man came in wearing a ski mask. The man walked to the cash register and tried to open it. When Cardenas asked whether she could help, the man screamed, “Get out of the way, bitch, ” and told her to turn around. Cardenas turned around and covered her face.
The robber took around $270 from the register and left a crowbar behind. Cardenas later identified defendant as the robber from a photographic lineup. She explained that the photograph resembled the robber, though she did not see the robber’s face. The robbery was captured on surveillance cameras.
C. The Walgreens Robbery
On May 13, 2009, between 9:00 p.m. and 10:00 p.m., Paul Muenks was working in a Walgreens store in Palm Springs when he noticed a man walk behind the cash registers. After he heard a register drawer “pop open” and fall on the floor, Muenks ran up to the registers and said, “Hey, what are you doing back there?” The man then “aimed” a gun at Muenks and said, “Get the fuck on the floor or I’m going to blow your fucking head off.” The robber was wearing a ski mask and Muenks did not see his face. Muenks ran to the back of the store and called 911. Around $450 was taken from the register. The robber left an instrument he used to pry open the register.
Sheila Scott and Esperanza Mora were also working in the Walgreens store at the time of the robbery. Scott and Mora testified that the robber walked into the store, pointed a gun at them, and told them to “[g]et the fuck down.” After that, Mora and Scott heard Muenks yell “[h]ey” at the robber, and the robber tell Muenks to “[g]et the fuck down....”
The robbery was recorded on surveillance cameras. The cameras also showed a man in the store earlier that evening who was not wearing a ski mask and whose build and clothing resembled the robber’s. Based on still photographs taken by the cameras, Muenks and Mora identified defendant in court as the robber. Muenks and Mora said the man shown in the store before the robbery had the same build and was wearing the same pants and shoes as the robber. Scott said defendant looked “a little bit like that guy” shown in the store before the robbery.
Muenks testified that the gun the robber used was not a revolver, but was “probably a semiautomatic or an automatic, ” and was “very sleek” and “blueish [sic] black” in color. Muenks said he was “totally unfamiliar with guns, ” but it was “definitely a gun, without a doubt.” Neither Mora nor Scott got a good look at the gun, but both saw that it was black.
D. Detective Shaun Hughes’s Testimony
Detective Shaun Hughes was the investigating officer in the case. The AM/PM store’s surveillance cameras showed a white car driving through the parking lot at 8:38 p.m. and 10:12 p.m. on May 6. The car had “paper plates” reading “Torre Nissan.” The Chevron store’s surveillance cameras showed a white Nissan Altima with paper plates, similar to the car shown in the AM/PM photographs, in the Chevron parking lot shortly before the May 11 Chevron robbery. Detective Hughes took photographs of the white Nissan to Torre Nissan, and obtained a list of similar vehicles sold within the previous year. The investigation led to defendant’s home in Indio and a photograph of defendant.
The photograph of defendant was used in the lineups shown to Rodriguez and Cardenas on May 18, and officers searched defendant’s home on May 19. In defendant’s home, the officers found two paintball masks, a pellet gun on top of a chest of drawers, and items of clothing similar to the clothes the robber was wearing in the surveillance photographs. Officers also found a crowbar similar to the one the robber left behind after the AM/PM and Chevron store robberies.
The white Nissan with “Torre Nissan” paper plates was registered to Fernando Delara Gonzalez, a relative of defendant’s by marriage. A pair of gloves was found in the Nissan. The officers also found a lanyard with a key to the Nissan, similar to a lanyard shown on the robber’s neck during the AM/PM and Chevron robberies. By May 19, defendant was in custody in Indio on an unrelated matter, and his jail possessions were searched on that date. His jail possessions included a pair of shoes similar to the shoes worn by the AM/PM, Chevron, and Walgreens robbers.
Based on his investigation, including the surveillance photographs, shoes, clothing, lanyard, white Nissan, and defendant’s build, Detective Hughes offered his lay opinion, over defense counsel’s objection, that defendant was the person who committed the AM/PM, Chevron, and Walgreens store robberies.
E. Defense Evidence
Defense investigator Paul Shupe testified that on June 24, 2009, at the instruction of defense counsel, he went to defendant’s home in Indio. Using a map defense counsel gave him, Shupe found a pellet gun buried under some rocks outside the house. Shupe took the pellet gun to the Walgreens store and showed it to Scott and Mora, but neither could say it was or was not the gun used in the Walgreens robbery. Shupe did not show the pellet gun to Rodriguez or Muenks. Shupe did not know how (or when) the pellet gun was buried.
III. DISCUSSION
A. Rodriguez Was Properly Allowed to Testify She Feared “Retaliation” for Testifying
Defendant claims the court abused its discretion and deprived him of a fair trial in refusing to strike Rodriguez’s “[y]es” response to the prosecutor’s question whether she was “afraid about retaliation for this, for your testimony.” Defendant argues the testimony was irrelevant because there was no evidence he threatened Rodriguez, and was so prejudicial that it deprived him of his right to a fair trial. We conclude the testimony was properly admitted.
1. Relevant Background
Before trial, the prosecutor told the court and defense counsel that “the witnesses of the robberies were very fearful about testifying.” Rodriguez, the victim of the AM/PM robbery, was the first witness to testify. Rodriguez identified defendant at trial as the person who robbed her, and previously identified him as the robber in a photographic lineup.
In cross-examining Rodriguez, defense counsel challenged the reliability of her photographic lineup and in-court identifications of defendant. On redirect, the prosecutor asked Rodriguez how “confident” she was that defendant was the person who robbed her. Rodriguez responded, “I’m pretty sure.” Defense counsel followed up by asking Rodriguez, “Well, are you sure or did you know?” Rodriguez answered, “Well, I’m pretty sure. It’s more like I do know.” Then, when asked to repeat her answer, Rodriguez said, “I said I’m pretty sure. I feel like I know that it was him.”
On further redirect, the prosecutor asked Rodriguez, “Ma’am, are you afraid about retaliation for this, for your testimony?” Without objection, Rodriguez answered, “Yes, I am.” Next, the prosecutor asked Rodriguez, “Why are you afraid about retaliation?” Rodriguez began to respond by saying, “Because prior to that, before, I guess..., ” but the court interrupted her response and asked counsel to approach the sidebar.
After an unreported sidebar discussion, the court asked counsel whether they had any further questions of Rodriguez and both said no. Rodriguez was then excused subject to being recalled, and the jury was excused for the noon recess. Just before the noon recess, a juror submitted a note to the court asking, “So do we put the ‘retaliation comment into consideration?’”
Outside the presence of the jury, the court and counsel reiterated their sidebar discussion on the record. Defense counsel objected to the “retaliation question” on the ground he had not received any discovery regarding retaliation. The court pointed out that, just before trial, the prosecutor told the court and defense counsel that the witnesses to all the robberies were “very fearful about testifying.” The court then asked the prosecutor to state his position. The prosecutor emphasized that he had disclosed before trial that the witnesses were fearful of testifying, and that Rodriguez latertold him she was “afraid of retaliation” because she knew some of defendant’s friends.
The court then pointed out that there had been a “meeting of the minds” during the sidebar discussion that it would be best to leave the examination of Rodriguez where it stood, and before the court would allow further questioning concerning why Rodriguez feared retaliation, it would hold a hearing outside the presence of the jury to determine what she would say concerning the reasons she feared retaliation.
The prosecutor apologized and conceded he should not have asked Rodriguez why she was fearful of “retaliation” before discussing the matter with the court. He explained, however, that he went “down that route” because Rodriguez was becoming “wishy washy” in her testimony, and he wanted the jury to understand she was fearful of retaliation for testifying.
Defense counsel requested advance notice if the prosecutor intended to ask any other witnesses whether they were fearful of retaliation for testifying, and argued the issue was irrelevant because there was no evidence defendant had threatened any witnesses. Defense counsel added that it would be irrelevant and prejudicial for Rodriguez to testify she was fearful of testifying because she knew some of defendant’s friends, because that would constitute “guilt by association.”
In response, the prosecutor pointed out that whether Rodriguez was fearful of testifying was relevant to her credibility. The court agreed, and expressly overruled defense counsel’s relevancy objection to Rodriguez’s testimony that she feared retaliation for testifying. The court added that the reasons Rodriguez feared testifying were also relevant to her credibility, but she would not be allowed to testify to those reasons to the extent her testimony would be inflammatory or unduly prejudicial.
The court and counsel then discussed the note the juror submitted to the court immediately after Rodriguez testified, which asked, “So do we put the ‘retaliation comment into consideration?’” Following the noon recess, the court told the full jury that the answer to the question was “yes, ” and reminded the jurors they had already been instructed that they were the judges of the evidence and the credibility of the witnesses.
The court then told the jury: “Rodriguez at the conclusion of her testimony did mention the word ‘retaliation.’ And that is something that you could consider, along with all of her [sic] other evidence, along with all the other witnesses’ testimony, and all the other evidence in evaluating the credibility of each and every witness and in evaluating the evidence itself.” Before the close of the evidence, the parties stipulated that defendant had been in custody since May 17, only 11 days after the AM/PM robbery, and there was “no evidence” that defendant had threatened Rodriguez, directly or indirectly.
2. Analysis
Defendant argues Rodriquez’s testimony that she feared “retaliation” for testifying was irrelevant and highly prejudicial, and the court abused its discretion and deprived him of a fair trial in allowing it. We disagree.
It is settled that evidence that a witness “is afraid to testify or fears retaliation for testifying” is relevant to and admissible on the issue of the witness’s credibility. (People v. Burgener (2003) 29 Cal.4th 833, 869, italics added, and cases cited; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; see generally Evid. Code, § 780.) And here, defense counsel called Rodriguez’s credibility into question by challenging the reliability of her identification of defendant as the robber of the AM/PM store.
After defense counsel questioned Rodriguez about statements she made to police shortly after the robbery that the robber had a large tattoo on his forearm, and pointed out that defendant only had a small tattoo on his wrist, Rodriguez said she was only “pretty sure” defendant was the robber. Rodriguez thus became “wishy washy” concerning her identification of defendant as the robber. The prosecutor then asked Rodriguez whether she feared retaliation for testifying, and Rodriguez said yes. In this context, Rodriguez’s “retaliation comment” was relevant to and presumptively admissible on the issue of her credibility, because it tended to explain her equivocation in identifying defendant as the robber. (Evid. Code, §§ 210, 350.)
Defendant argues the prosecutor’s “retaliation” question was not relevant to assessing Rodriguez’s credibility, because her equivocation on cross-examination could only have been due to her “honest reassessment” of her identification testimony following defense counsel’s questioning about the robber’s rather larger tattoo, which defendant did not have. But this is only one plausible reason for Rodriguez’s equivocation, under cross-examination, in identifying defendant as the robber. Her fear of retaliation for testifying was another. (People v. Olguin, supra, 31 Cal.App.4th at p. 1369 [“the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility.”].) Thus, Rodriguez’s retaliation comment was indeed relevant to assessing her credibility.
Because Rodriguez’s “retaliation comment” tended to explain why she became “wishy washy” or equivocated in identifying defendant as the AM/PM robber when questioned under cross-examination, the court did not abuse its discretion in admitting the comment for the limited purpose of assessing Rodriguez’s credibility. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [trial court’s exercise of discretion in admitting evidence is reviewed for abuse].) The court specifically instructed the jury to consider Rodriguez’s “retaliation comment” on the issue of her credibility, and to consider her credibility in the broader context of her testimony as a whole and the other evidence presented. This instruction was proper, and we presume the jury followed it. (People v. Lynch (2010) 50 Cal.4th 693, 760.)
Defendant further suggests Rodriguez’s retaliation comment was unduly prejudicial per se, even though and precisely because Rodriguez did not explain the reasons she feared retaliation. He argues the jury must have linked Rodriguez’s fear of retaliation to him, given that Rodriguez’s reasons for fearing retaliation were unexplained.
We observe that fear of retaliation evidence is admissible to assess a witness’s credibility, even when the witness’s fear of retaliation is not linked to the defendant. (People v. Stewart (2004) 33 Cal.4th 425, 492, fn. 28.) To be sure, “‘[a] witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony, ’” regardless of the reasons the witness fears retaliation or the source of any threats to the witness. (Ibid., quoting and citing with approval People v. Olguin, supra, 31 Cal.App.4th at p. 1368.)
As the trial court also pointed out, the reasons a witness fears retaliation are also relevant to assessing the witness’s credibility, but because the prejudicial effect of such evidence may outweigh its probative value on the credibility question, such evidence is admissible “within the limits of Evidence Code section 352.” (People v. Stewart, supra, 33 Cal.4th at p. 492, fn. 28.) But this does not mean that a witness’s testimony that he or she fears retaliation for testifying—without any explanation of the reasons the witness fears retaliation—will always be unduly prejudicial.
Here, and as discussed, Rodriguez’s “retaliation comment” was relevant and admissible to bolster her credibility after defense counsel directly challenged the reliability of her identification of defendant as the AM/PM store robber. Further, counsel may always question a witness concerning the reasons he or she fears retaliation, and in the absence of any “reason” or “source of threat” evidence, an instruction can be given admonishing the jury there is no evidence linking the witness’s fear of retaliation to the defendant.
This is what happened here. The parties stipulated “there [was] no evidence” defendant threatened Rodriguez, directly or indirectly, and further stipulated that defendant had been in custody since May 17, 2009, only 11 days after the AM/PM robbery. This refuted any suggestion that Rodriguez’s fear of retaliation was linked to defendant, while the jury was still allowed to assess Rodriguez’s credibility, knowing she feared retaliation for testifying, for largely unexplained reasons.
Nor was Rodriguez’s “retaliation comment” offered for the purpose of establishing a consciousness of guilt on the part of defendant. (People v. Olguin, supra, 31 Cal.App.4th at p. 1368, distinguishing People v. Hannon (1977) 19 Cal.3d 588, 596-600; People v. Weiss (1958) 50 Cal.2d 535, 551-554.) Rather, the comment was offered and admitted solely for the purpose of assessing Rodriguez’s credibility.
Lastly, defendant relies on Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967, 971 (Dudley) for the proposition that Rodriguez’s “retaliation comment” was an “evidentia[ry] harpoon[]” which surreptitiously linked him to unspecified and implicit threats of retaliation against Rodriguez. The federal appellate court in Dudley concluded that the defendant’s due process rights were violated by the admission of a witness’s testimony that he was nervous about testifying because, the night before, he had received anonymous and threatening telephone calls, and because of those calls he feared for the safety of his sister and aunt. (Id. at p. 969.) Though the witness did not link the defendant to the anonymous telephone calls, the appellate court said the record “clearly” suggested “the strong possibility” that the prosecutor placed the witness’s threat testimony before the jury under the “pretext” of explaining why the witness was nervous, when there was little indication the witness was nervous, and while surreptitiously suggesting the defendant was linked to the threats. (Id. at p. 971.)
Dudley is distinguishable, because Rodriguez’s equivocation was no pretext for the admission of her “retaliation comment.” As discussed, Rodriguez plainly equivocated when she testified under cross-examination she was “pretty sure” defendant was the robber, after exhibiting a greater degree of certainty about her identification under direct examination. (People v. Williams (1997) 16 Cal.4th 153, 212 [distinguishing Dudley on the “pretext” ground].)
Dudley is also distinguishable for a second reason. The threat testimony in Dudley involved anonymous telephone calls which the jury reasonably could link to the defendant, whereas here Rodriguez simply said “yes” when asked whether she feared “retaliation” for testifying. She did not explain the reasons for her fear, and the parties stipulated that defendant had never threatened her and had been in custody since shortly after the AM/PM robbery.
B. Substantial Evidence Supports the Firearm Enhancements
Defendant claims that insufficient evidence supports the firearm enhancements in counts 1 and 3, in which he was convicted of the AM/PM and Walgreens store robberies. He claims the jury “inexplicably rejected the evidence that the robberies were committed with a pellet gun.” We reject this claim and conclude that substantial evidence supports the enhancements.
In determining whether sufficient evidence supports the enhancements, we review the entire record in the light most favorable to the jury’s findings in order to determine whether a reasonable trier of fact could have found the enhancements true beyond a reasonable doubt based on substantial evidence—that is, evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 577-578.) If the evidence reasonably supports the jury’s findings, we may not reverse the findings simply because we believe the circumstances or evidence might support contrary findings. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
Section 12022.53 provides for an additional and consecutive 10-year prison term on any person who personally uses a “firearm” in the commission of a robbery. (§ 12022.53, subds. (a)(4), (b).) For these purposes, a firearm is “any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion....” (§ 12001, subd. (b).) The jury was instructed accordingly. (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 3146.)
During deliberations the jury sent the court a note asking, “Is a pellet gun considered to be a firearm?” The court responded, “NO!” To be sure, a pellet gun is not a firearm within the meaning of section 12022.53, because it does not use the force of an explosion or other combustion, but uses the force of air pressure, gas pressure, or spring action to expel a projectile. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)
Defendant points out that no “firearm” was found following the robberies; only two pellet guns were found. The first pellet gun was found on top of a chest of drawers during the officers’ May 19 search of his home, and the second pellet gun was found by the defense investigator under some rocks in defendant’s yard on June 24, using a map provided by defense counsel. In view of this evidence, defendant argues the jury “inexplicably rejected the evidence that the robberies were committed with a pellet gun, ” rather than a firearm. Not so.
A defendant’s use of a “firearm” during a robbery can be established by direct or circumstantial evidence, including the defendant’s or robber’s own words and conduct. (Monjaras, supra, 164 Cal.App.4th at pp. 1435-1437; People v. Rodriguez, supra, 20 Cal.4th at p. 13.) Though a firearm is not required to be loaded or even operable for purposes of section 12022.53, subdivision (b), the defendant’s “‘words and actions, in both verbally threatening and in displaying and aiming [a] gun at others, [can] fully support[] the jury’s determination the gun was sufficiently operable [and loaded].’” (Monjaras, supra, at p. 1437, citing People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541.) More generally, a jury may infer from the circumstances of a robbery that the robber used a “firearm” rather than a toy or pellet gun. (People v. Aranda (1965) 63 Cal.2d 518, 532-533.)
We are satisfied that substantial evidence supports the jury’s conclusion that defendant used a “firearm” rather than a pellet gun in the AM/PM and Walgreens robberies, and supports the jury’s true findings on the firearm enhancement allegations. Rodriguez testified she had seen guns before and got a “pretty close” look at the gun defendant pointed at her during the AM/PM robbery. She saw that the gun was black and “scraped... from the top, ” and she believed it was a “small.22.” Defendant also threatened her with the gun by pointing it at her and telling her, “Don’t even try it, bitch[.]”
Based on defendant’s words and actions, together with Rodriguez’s observations during the AM/PM robbery, the jury could have reasonably inferred that beyond a reasonable doubt defendant used a firearm rather than a pellet gun during the robbery. It was also reasonable for the jury to infer that the pellet gun found buried in defendant’s yard was not the gun defendant used in the AM/PM robbery. When shown a photograph of the same pellet gun during trial, Rodriguez testified it “look[ed] familiar” but she could not “say for sure” it was the same gun defendant pointed at her. The pellet gun did not have the “scraped part” she saw on the gun defendant used.
Based on similar evidence, the jury could have reasonably inferred beyond a reasonable doubt that defendant used a firearm in the Walgreens robbery, rather than a pellet gun. During that robbery, defendant pointed a gun at three victims. When he pointed the gun at Mora and Scott, he told them to “[g]et the fuck down, ” and when he pointed the gun at Muenks, he told him to, “Get the fuck on the floor or I’m going to blow your fucking head off.” This plainly indicated to Mora, Scott, and Muenks that defendant was using a firearm.
Muenks also testified the gun was not a revolver, but “probably a semiautomatic or an automatic, ” and was “very sleek” and “blueish [sic] black.” Though Muenks said he was “totally unfamiliar with guns, ” he said the instrument defendant had was “definitely a gun, without a doubt.” Neither Mora nor Scott got a good look at the gun, but both saw it was black. The defense investigator showed Mora and Scott the pellet gun from defendant’s backyard, but neither recognized it. The pellet gun was not shown to Muenks before or during trial.
Though no witness ruled that the gun or guns used in the robberies were not pellet guns, that is not a proper basis for disturbing the jury’s true findings on the personal use enhancements. As observed in Monjaras, a victim’s “inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm.” (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
Defendant relies on People v. Dixon (2007) 153 Cal.App.4th 985 (Dixon) to support his argument that cases relying on circumstantial evidence to uphold firearm use enhancements, including Monjaras, aredistinguishable from the present case and others “in which there was evidence a weapon might have been a pellet or a bb gun.” He points out that the Monjaras court distinguished Dixon on the ground that, unlike in Monjaras, in Dixon there was evidence that the guns used were BB or pellet guns, not real firearms. (Monjaras, supra, 164 Cal.App.4th at p. 1438, fn. 1.)
Dixon does not assist defendant’s argument. The defendant in Dixon waived his right to a jury trial on robbery and other charges, and his case was tried to the court. (Dixon, supra, 153 Cal.App.4th at p. 988.) The court concluded the prosecution did not prove beyond a reasonable doubt that the gun the defendant used during several robberies was a firearm, because there was evidence it might have been a pellet gun or BB gun. (Id. at p. 1001.) As here, the guns used in the robberies were never found, and the victims, who were unfamiliar with guns, could only say the robbers had what appeared to be guns. (Id. at pp. 989-990, 1001.)
Unlike Monjaras and the present case, however, Dixon did not involve a claim of insufficiency of the evidence to support firearm use enhancements. Rather, the issue was whether the defendant had received adequate notice he was being charged with personal use of a deadly weapon (§ 12022, subd. (b)), a lesser included enhancement which the trial court found true. (Dixon, supra, 153 Cal.App.4th at p. 1001.) The trial court, sitting as the trier of fact, was not convinced that the prosecution had proved the firearm enhancement allegation true beyond a reasonable doubt. Here, by contrast, the jury was convinced beyond a reasonable doubt that defendant personally used a firearm in counts 1 and 3, and substantial evidence supports its true findings.
C. There Was NoGriffin Error
Defendant claims the prosecutor committed Griffin error during closing argument by commenting on defendant’s failure to testify. We conclude the prosecutor properly commented on the defense’s failure to call a logical witness, not necessarily defendant.
1. Relevant Background
During his initial closing argument, the prosecutor argued that the pellet gun the defense investigator found buried in defendant’s yard in June 2009 was not the gun used in the AM/PM or Walgreens robberies, because the pellet gun had a laser pointer that “[stood] out” and none of the witnesses identified the pellet gun as the gun used in either of the armed robberies.
The prosecutor continued: “[T]he only competent testimony that you have before you is that a real gun was used. That is the only competent testimony. We don’t even know where this [pellet] gun came from. The defense spoke something about this mysterious map. Where did this map come from? Where? Nobody came forward to tell us where this map came from, the map, apparently, of the house where the search warrant was served leading the... defense investigator to where the gun was buried. Where did it come from? Why didn’t anybody come forward?” At this point, defense counsel interposed a “Griffin, Doyle” objection, which was overruled.
Doyle v. Ohio (1976) 426 U.S. 610.
During rebuttal argument, the prosecutor urged the jury to conclude that “the only reasonable inference” regarding the pellet gun was that it was buried by “somebody close to [defendant]” after defendant was taken into custody on an unrelated matter on May 17 and after defendant’s home was searched on May 19. The prosecutor also pointed out that the gun was found in June, after defendant was charged in the present case, and this bolstered the inference that the pellet gun was buried “by somebody close to [defendant]” to mislead the jury and help defendant defeat the firearm enhancement allegations. The prosecutor also pointed out that defense counsel would not have buried the pellet gun, and suggested defendant could not have buried it because he was in custody when he was charged in the present case.
2. Applicable Law and Analysis
The Fifth Amendment forbids the prosecution from commenting on the silence of a criminal defendant. (Griffin, supra, 380 U.S. at p. 615.) “The prosecutor’s argument cannot refer to the absence of evidence that only the defendant’s testimony could provide. [Citation.] The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.]” (People v. Brady (2010) 50 Cal.4th 547, 565-566.)
Here the prosecutor’s argument properly focused on the defense’s failure to call a logical witness, namely, the person who buried the pellet gun. The prosecutor specifically suggested that this person was “somebody close” to defendant, but was not defendant, because defendant was already in custody when he was charged in the present case. Thus, the prosecutor was not commenting on or referring to defendant’s failure to testify and explain who buried the gun, and the jury could not have reasonably understood him as doing so. In sum, the prosecutor effectively excluded defendant as a “logical witness” who could have explained when and under what circumstances the pellet gun was buried.
D. Detective Hughes’s Lay Opinion That Defendant Was the Robber as Shown in the Surveillance Videos Should Not Have Been Admitted, But It Was Harmless
Based on his investigation, including the surveillance photographs, shoes, lanyard, white Nissan, and defendant’s build, Detective Hughes offered his opinion—over defense counsel’s objection—that defendant was the person shown in the surveillance photographs of the robberies and was the person who committed the robberies.
Defendant claims the court abused its discretion in allowing the detective to opine that defendant and the robber shown in the surveillance videos were the same person. We conclude the detective’s lay opinion should not have been admitted, but its admission was harmless.
We review a trial court’s decision to admit or exclude lay opinion testimony for an abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128-130.) A lay witness may offer opinion testimony that is rationally based on the witness’s perception and “[h]elpful to a clear understanding of his [or her] testimony.” (Evid. Code, § 800.) “A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where ‘helpful to a clear understanding of his testimony’ [citation], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.]” (People v. Melton (1988) 44 Cal.3d 713, 744.)
Detective Hughes should not have been allowed to offer his lay opinion that defendant and the robber shown in the surveillance videos were the same person. All of the observations on which the detective based his opinion—for example, the similarities between the clothing, shoes, and lanyard found in defendant’s home with the clothing, shoes, and lanyard the robber wore—could have been presented to the jury without the detective’s ultimate conclusion opinion. In context, the detective’s opinion was not helpful to the trier of fact. (Cf. People v. Mixon (1982) 129 Cal.App.3d 118, 127-130 [officers’ lay opinions that defendant was person in surveillance photograph based on personal knowledge of defendant’s appearance before photograph was taken].)
Still, it is not reasonably probable that the admission of the detective’s opinion affected the outcome. (People v Watson (1956) 46 Cal.2d 818, 836.) When the detective testified that defendant was the robber shown in the surveillance videos, the court immediately admonished the jury that the detective was only offering his opinion, and it was up to the jury to decide whether defendant was the robber. And when the case was submitted to the jury, the court gave CALCRIM No. 333, which told the jury it was not required to accept the opinions of witnesses who offered nonexpert or lay opinions during the trial. These instructions dispelled any notion the jury may have otherwise had that they were bound by the detective’s opinion.
The full text of CALCRIM No. 333 told the jury: “Witnesses, who were not testifying as an expert, gave their opinions during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
Additionally, the physical evidence found in defendant’s home, including the clothing, shoes, and lanyard, were indeed similar to the clothing, shoes, and lanyard the robber was wearing as shown in the surveillance videos, and defendant’s build also matched the robber’s. The white Camry seen in the store parking lots before the robberies was also linked to defendant. Further, the surveillance videos strongly indicated that the same person robbed all three stores, and Rodriguez, Cardenas, Muenks, and Mora each identified defendant as the robber.
E. No Cumulative Error
Lastly, defendant argues the cumulative effect of the evidentiary and prosecutorial errors requires reversal of his convictions and enhancement true findings. There was no cumulative error, however. (See People v. Johnson (2010) 183 Cal.App.4th 253, 288.) The only error was the admission of Detective Hughes’s lay opinion testimony identifying defendant as the robber shown in the surveillance videos. For the reasons discussed, however, it is not reasonably probable that this minor evidentiary error affected the outcome.
IV. DISPOSITION
The judgment is affirmed.
We concur: Richli Acting P.J., Miller J.