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People v. Robinson

Court of Appeal of California
Jul 1, 2008
No. A118314 (Cal. Ct. App. Jul. 1, 2008)

Opinion

A118314

7-1-2008

THE PEOPLE, Plaintiff and Respondent, v. BRUCE ALAN ROBINSON, Defendant and Appellant.

Not to be Published


Defendant was convicted following a jury trial of two counts of second degree burglary (Pen. Code, § 459), two counts of petty theft with a prior conviction (Pen. Code, § 666), and two counts of grand theft (Pen. Code, § 487, subd. (a)). The trial court found that defendant served two prior prison terms (§ 667.5, subd. (b)), and committed offenses while out of custody on bail on a felony (Pen. Code, § 12022.1). He was sentenced to an aggregate state prison term of four years eight months.

In this appeal defendant objects to the failure of the trial court to sever trial of the charges, claims that his right to confrontation was violated by a restriction placed on cross-examination of a witness, and challenges the imposition of a consecutive sentence based on facts not found by the jury. We conclude that consolidation of the charges was not an abuse of discretion, defendants right to cross-examination was not abridged, and the imposition of a consecutive sentence was proper. We therefore affirm the judgment.

STATEMENT OF FACTS

The convictions are based on two different incidents, which we will recount separately.

The Theft Offenses at Raleys

On the afternoon of December 13, 2005, while Lucia Rodriguez was working at the Raleys supermarket on Sonoma Boulevard in Vallejo, she observed a man she positively identified at trial as defendant walk quickly out of the store with a shopping cart full of Similac baby formula. Rodriguez noticed that the baby formula was not packaged, so she followed defendant out of the store, believing he "was stealing it." Rodriguez yelled at defendant to return the merchandise, but he kept going. When she asked him again, he turned the shopping cart over to her. Inside the cart were 40 cans of baby formula and bags of diapers, with a total value of around $700. Defendant left in a vehicle which was occupied by at least one other person.

The full name of the witness is Lucia Rodriguez Grunstad, but we will use the name Rodriguez, as the parties did at trial.

Mark Inhofer, another Raleys employee, testified that after being alerted by Rodriguez he also saw an "African American" man outside the store pushing a cart filled with diapers and baby formula. Inhofer heard Rodriguez tell the man to "Stop," then watched as the man gave the cart to Rodriguez and ran to a car. He copied the license plate number of the vehicle, which he subsequently gave to a police officer.

When the police arrived, Rodriguez partially described the clothing the man was wearing: a blue hooded sweatshirt and a white T-shirt. She could not describe his pants or shoes. Rodriguez told the police she was not sure she would be able to identify the man, since she was looking primarily at his body rather than his face during the incident. She thought the man looked like he was "in his late 20s."

Defendant was then 49 years old.

A vehicle with a license plate number that matched the one given by Inhofer was stopped by a Vallejo police officer "some time" in December of 2005. Defendant was an occupant of the vehicle. The investigating officer then compiled two photo lineups, one of which contained defendants photograph. The lineups were displayed to Rodriguez and Inhofer on February 13 and 14, 2006. Rodriguez identified defendants photo, number four, in the first lineup by circling it. She did not identify any photographs in the second lineup. Inhofer circled a photograph he thought "was the person [he] saw," but it was not defendants photo. Inhofer was shown the same photo lineups the next day, and again he made no identification of defendant.

The other lineup included a photograph of a man the officer thought may be the "second person involved in this burglary," based on the information obtained in the vehicle stop.

Inhofer testified that at the time he was sure of his identification.

The Theft Offenses at Safeway

On August 24, 2006, at around 10:30 p.m., James Wagar, the closing manager of the Safeway on Robles Drive in Vallejo, was informed by another employee that "people were walking" out of the store with grocery carts. Wagar observed two "African-American males" leave the store, each one with a cart full of items that were not bagged. Wagar walked out of the store and followed the men to a U-Haul truck. The man in front dumped the contents of one cart into the U-Haul, and entered the truck. Wagar told the "gentleman in the rear" that he "could not leave with those items." The man warned Wagar not to "run up" on him, so Wagar backed away and called the Vallejo police. The man then dumped the merchandise of his cart into the U-Haul, and the two men drove away. Wagar did not make an identification of either of the two men.

Darryl McAllister, an off-duty police captain, was in the Safeway parking lot when he heard a "commotion" and observed a "person pushing a shopping cart out of the store being followed" by a Safeway employee. The employee was attempting to get the person pushing the cart to stop, but the person shouted expletives and yelled at him to "back off." The person pushing the cart proceeded quickly to the rear of a U-Haul van. After McAllister heard "things being thrown or dumped" into the back of the U-Haul, the man got into the drivers seat and began to drive out of the parking lot. McAllister testified that the person he had seen pushing the shopping cart and then driving the vehicle was defendant. Another "African-American male" was in the passenger seat.

McAllister followed the U-Haul out of the parking lot, onto Highway 780, then Highway 80 heading west to the Powell Street exit in Emeryville. He never lost sight of the vehicle. The Highway Patrol stopped the U-Haul on Powell Street in response to the report of a "robbery from a Safeway store in Vallejo." Two "Black males" were inside the detained vehicle: defendant, and a man identified as Carl Collier. When McAllister looked inside the U-Haul he saw items that appeared to be from the shopping cart he previously observed in the parking lot: baby formula, diapers and other grocery store merchandise. The total value of the merchandise retrieved from the U-Haul van was $2,288.70.

DISCUSSION

I. The Consolidation of the Charges

The trial court granted the prosecutions motion to consolidate the charges from the two incidents, then denied defendants motion for severance. Defendant complains that the court erred by joining the "relatively weaker case," the "Safeway incident" in which he was merely seen "waiting in the U-Haul truck," with the unrelated "stronger case" of the "Raleys attempted theft." He adds that the Safeway incident was more inflammatory, as it included a threat of harm to one of the employees, and the two cases had no common witnesses. Defendant also maintains that "there was no substantial cross-admissibility of evidence" in the two cases. The result of the consolidation, asserts defendant, was a "gross unfairness" that occurred when the jury considered all of the evidence in the aggregate at a joint trial.

"Joinder and severance of different criminal charges against the same defendant are governed by [Penal Code] section 954, which states that an `accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (People v. Maury (2003) 30 Cal.4th 342, 391.) As defendant acknowledges, all of the charged crimes were the "same class" of theft offenses, and thus under Penal Code section 954 joinder was proper "unless a clear showing of potential prejudice was made." (People v. Jenkins (2000) 22 Cal.4th 900, 947.) "When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendants severance motion." (People v. Mendoza (2000) 24 Cal.4th 130, 160.) Penal Code section 1098 "directs that, `When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. . . . The statutes evince a legislative preference for joint trials. [Citations.]" (People v. Sullivan (2007) 151 Cal.App.4th 524, 557.) "`"`The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.]" [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120.)"

` "The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) "The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case." (People v. Mendoza, supra, 24 Cal.4th 130, 161; see also People v. Gutierrez, supra, 28 Cal.4th 1083, 1120.)

"We review the trial courts ruling for abuse of discretion, which will be found `when the trial courts ruling "`falls outside the bounds of reason." [Citation.]" (People v. Jenkins, supra, 22 Cal.4th 900, 947.) "In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling." (People v. Mendoza, supra, 24 Cal.4th 130, 161.)

We commence our review with an examination of the cross-admissibility of evidence on each of the joined charges. "`The initial step in any review of a motion to sever is to examine the issue of cross-admissibility of evidence. Since cross-admissibility would ordinarily dispel any [inference] of prejudice [citations], we must inquire, had the severance motion been granted, would the evidence pertinent to one case have been admissible in the other under rules of evidence which limit the use of character evidence or prior similar acts to prove conduct [citations]. [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 851-852.) If evidence is cross-admissible, denial of severance cannot be error. (People v. Sullivan, supra, 151 Cal.App.4th 524, 557-558.)

"The rules governing the admissibility of evidence of other crimes 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; see also People v. Jablonski (2006) 37 Cal.4th 774, 822-823; People v. Catlin (2001) 26 Cal.4th 81, 111; People v. Diaz (1992) 3 Cal.4th 495, 561; People v. Branch (2001) 91 Cal.App.4th 274, 280; People v. Van Winkle (1999) 75 Cal.App.4th 133, 140.) "`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. [Citations.] [Citations.]" (People v. Brown (1993) 17 Cal.App.4th 1389, 1395; see also People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) "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; see also People v. Gray, supra, at p. 202; People v. Hawkins (1995) 10 Cal.4th 920, 951; People v. Johnson (1991) 233 Cal.App.3d 425, 443-444.)

We are persuaded that the evidence would have been cross-admissible in separate trials to prove a common scheme or plan, which was relevant to the element of intent and to prove that defendant committed the acts alleged. (See People v. Kraft (2000) 23 Cal.4th 978, 1030-1031; People v. Scheer (1998) 68 Cal.App.4th 1009, 1020.) To prove common scheme or plan, a "`"somewhat lesser degree of similarity is required"" than to prove identity. (People v. Abilez (2007) 41 Cal.4th 472, 500, quoting People v. Gray, supra, 37 Cal.4th 168, 202; People v. Prince (2007) 40 Cal.4th 1179, 1271; People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) "[A] common scheme or plan focuses on the manner in which the prior misconduct and the current crimes were committed, i.e., whether the defendant committed similar distinctive acts of misconduct against similar victims under similar circumstances." (People v. Scheer, supra, at p. 1020.) "`To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (People v. Kraft, supra, at p. 1031.) "`Evidence tending to establish a common plan or design should demonstrate "`not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.] [Citation.] However, `[u]nlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.] `For this purpose, "the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." [Citation.] [Citation.]" (People v. Sullivan, supra, 151 Cal.App.4th 524, 558; see also People v. Catlin, supra, 26 Cal.4th 81, 120.)

The offenses charged here bore a number of highly distinctive common marks. Defendant was seen pushing grocery carts out of large supermarkets, both of which were located in Vallejo. The items in the carts were not bagged. Defendant apparently had an accomplice on both occasions. He proceeded into the parking lots of the stores, where a vehicle was waiting. We recognize that during the Raleys burglary defendant turned the shopping cart over to an employee when confronted, while he and his accomplice ignored an employees request to stop and placed the items in a vehicle to complete the Safeway theft. Despite the difference in the ultimate outcome of the two criminal ventures, the evidence is otherwise strikingly similar enough to have formidable probative value to prove that on both occasions defendant was engaged in a common scheme with an accomplice to steal large quantities of diapers and baby formula from grocery stores. (See People v. Branch, supra, 91 Cal.App.4th 274, 281.)

We further conclude that the evidence was not subject to exclusion under Evidence Code section 352. "In addition to its relevance to an issue other than predisposition or propensity, to be admissible under [Evidence Code] section 1101, subdivision (b), the probative value of the evidence of uncharged crimes `must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]" (People v. Walker (2006) 139 Cal.App.4th 782, 796; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210-1211.) "`"Since `substantial prejudicial effect [is] inherent in [such] evidence, uncharged offenses are admissible only if they have substantial probative value." [Citation.] [Citation.]" (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1445, italics omitted.)

"The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1211.) "` "The `prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues." [Citations.]" (People v. Garceau (1993) 6 Cal.4th 140, 178; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) "`In applying section 352, "prejudicial" is not synonymous with "damaging." [Citations.]" (People v. Callahan (1999) 74 Cal.App.4th 356, 371.)

As we have observed, the marked similarity of the distinctive events made the evidence quite probative. The offenses were also committed in temporal proximity to each other, and the sources of proof of the offenses were unrelated. We further find that neither of the offenses was appreciably more inflammatory than the other. The mild threat made by defendant to the Safeway employee not to "run up" on him, fails to evoke an emotional bias against defendant that renders the evidence prejudicial for purposes of Evidence Code section 352. In addition, defendant did not present antagonistic or even distinctive defenses to the charges; he essentially claimed that for all of the charges the identification testimony offered against him was unpersuasive. (People v. Jackson (1996) 13 Cal.4th 1164, 1208-1209; People v. Pinholster (1992) 1 Cal.4th 865, 934.) Upon consideration of both the probative value of the evidence and its prejudicial effect we find that all of the evidence would have been cross-admissible in separate trials, so the trial courts failure to grant severance was not error. (People v. Koontz (2002) 27 Cal.4th 1041, 1075; People v. Sullivan, supra, 151 Cal.App.4th 524, 559.) Cross-admissibility of evidence is sufficient in itself to deny severance. (People v. Manriquez (2005) 37 Cal.4th 547, 634.)

Consideration of the remaining factors reinforces our view that denial of severance was not an abuse of discretion. None of the charges unusually inflamed the jury against the defendant; and, contrary to defendants assertion, a weak case was not joined with a strong one. We find nothing in the record to indicate that a joint trial of the charges was prejudicial or unfair to defendant. Therefore, the trial courts failure to grant severance was not an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 120-121; People v. Gray, supra, 37 Cal.4th 168, 202; People v. Mayfield (1997) 14 Cal.4th 668, 720-721.)

We disagree with defendants assertion that the evidence indicated he was only waiting in the U-Haul truck during commission of the Safeway crimes. McAllister testified that defendant was pushing the shopping cart filled with merchandise before he drove the truck away.

II. The Restriction on Cross-Examination of Lucia Rodriguez

We turn to defendants claim that his right of confrontation was violated by the improper restriction placed on the defense cross-examination of Lucia Rodriguez, the primary witness to the Raleys offenses. Defense counsel asked Rodriguez if she told her fellow Raleys employee Mark Inhofer that she did not think she would "be able to identify the suspect" during their discussion of "what happened" before the police arrived. The trial court sustained the prosecutions hearsay objection to the question. Defendant complains that the inquiry into a prior statement by Rodriguez in which she cast doubt on her ability to identify the suspect was admissible to impeach her direct testimony that she made a photo identification of him.

We disagree with respondents assertion that defendant is precluded from challenging the trial courts evidentiary ruling by his failure to object at trial. "To preserve for appeal an alleged error in excluding evidence, a party must make an offer of proof informing the trial court of the `purpose, and relevance of the excluded evidence. [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1144.) "`Evidence Code section 354 provides inter alia that an erroneous exclusion of evidence shall not cause a judgment to be reversed unless the error complained of resulted in a miscarriage of justice and it appears of record that: "(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the question asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination.["] [Citation.]" (People v. Franklin (1994) 25 Cal.App.4th 328, 336; see also People v. Anderson (2001) 25 Cal.4th 543, 580.) Defense counsel did not make a specific offer of proof, but given the context of the cross-examination the obvious purpose of the proposed question was to present evidence to impeach the identification testimony of Rodriguez. The record indicates to us that the trial court and the opposition were aware of the purpose and relevance of the inquiry. We think that by offering the evidence as part of the ongoing cross-examination of the witness on the credibility of her identification testimony, the issue was preserved on appeal. (People v. Guerra, supra, at p. 1144; People v. Koontz, supra, 27 Cal.4th 1041, 1078.) We proceed to the merits of defendants claim that his right to cross-examination was infringed.

We begin our analysis with recognition of the fundamental constitutional premise that, "`[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this countrys constitutional goal. Indeed, . . . to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendments guarantee of due process of law. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 538.) Further, a defendant in a criminal case must have an opportunity to present a complete defense to the charges against him. (People v. Adams (2004) 115 Cal.App.4th 243, 253-254; People v. Sixto (1993) 17 Cal.App.4th 374, 398-399.) "`Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 269.) The rights to confront witnesses and to present exculpatory evidence, however, are not absolute and have limitations. (Taylor v. Illinois (1988) 484 U.S. 400, 410; People v. Brown, supra, at p. 538; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.)

Testimony that Rodriguez told Inhofer she may not be able to identify the suspect was admissible as a prior inconsistent statement and to impeach her credibility. (People v. Guerra, supra, 37 Cal.4th 1067, 1144; People v. Brown (1995) 35 Cal.App.4th 1585, 1596-1597.) Evidence that Rodriguez identified defendants photograph in a pretrial lineup and made a positive identification of him at trial was subject to impeachment with an inconsistent proffered declaration to Inhofer shortly after the burglary that she may not recognize the suspect. (People v. Guerra, supra, at p. 1144; Fost v. Superior Court (2000) 80 Cal.App.4th 724, 738.)

Assuming Rodriguez would have answered the question affirmatively or other evidence of the declaration was presented.

The trial courts exclusion of the proffered testimony, while erroneous, did not violate defendants confrontation rights. "A trial courts limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Confrontation clause questions arise where restrictions imposed by the trial court effectively "`emasculate the right of cross-examination itself." (Delaware v. Fensterer (1985) 474 U.S. 15, 19, quoting Smith v. Illinois (1968) 390 U.S. 129, 131.) "The confrontation clause `guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citations.]" (People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3; see also People v. Cooper (1991) 53 Cal.3d 771, 817.) "`Thus, unless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesses] credibility" [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 494; see also People v. Brown, supra, 31 Cal.4th 518, 545-546.)

Here, the probative value of the excluded impeachment evidence was comparatively minimal. The fact that Rodriguez may have expressed her concern about making an identification to a fellow employee during the stress immediately associated with the incident did not cast serious doubt upon the accuracy of her lineup and trial identifications. Further, defendant was otherwise afforded the opportunity to comprehensively cross-examine and impeach the witness. Through cross-examination, the defense effectively explored many other factors that affected the witnesss credibility: inconsistencies between her description of defendant to the police and his appearance, particularly his age; her inability to offer a description of the suspects pants, shoes, jewelry, tattoos, or hair; the delay between the event and her identifications; the fact that she got a better look at the suspects "body" than his face; and circumstances that rendered an identification difficult. The defense also presented essentially identical impeachment evidence in the form of an acknowledgment by the witness that she told a police officer she thought she would not "be able to identify the suspect." Defendant was not prevented from effectively challenging the credibility of the witness. (People v. Hill (1995) 34 Cal.App.4th 727, 739.) We are convinced that the jury would not have received a significantly different impression of the witnesss credibility had the defendant been permitted to pursue his proposed line of cross-examination. (People v. Frye (1998) 18 Cal.4th 894, 946.) We discern no violation of defendants right to confront and cross-examine witness Rodriguez in the trial courts ruling. (See People v. Sapp (2003) 31 Cal.4th 240, 290; People v. Zapien (1993) 4 Cal.4th 929, 955.)

We thus examine the error for prejudice "applying the reasonable probability test of People v. Watson (1956) 46 Cal.2d 818, 836 [citation] . . . ." (People v. Ayala, supra, 23 Cal.4th 225, 271.) Some of the factors to be considered in determining whether an error in the exclusion of evidence during cross-examination of a prosecution witness are "`the importance of the witness testimony in the prosecutions case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case. [Citation.]" (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.)

We find no reasonable probability that the outcome would have been different if Rodriguez had been impeached with evidence of a declaration to Inhofer, which was cumulative to other impeachment evidence adduced by the defense. The identification evidence was compelling. Rodriguez independently selected defendants photograph from a lineup, and positively identified him at trial. Her identification of defendant was subjected to rigorous cross-examination by the defense. Her testimony was also corroborated by evidence that defendant was identified by a witness as one of the two men who committed another remarkably similar burglary and theft of baby food and diapers from a supermarket in Vallejo. Defendant was then pursued and found in possession of the stolen items. A brief expression of doubt by Rodriguez immediately after the incident about her ability to make an identification does not cognizably diminish the strength of the prosecutions case. Under the circumstances presented, there is no reasonable possibility that further impeachment of Rodriguez regarding her identification of defendant would have affected the verdict. (People v. Guerra, supra, 37 Cal.4th 1067, 1144-1145; People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11; People v. Ochoa (1998) 19 Cal.4th 353, 479.) We conclude that the erroneous exclusion of the additional impeachment evidence was harmless under any standard. (People v. Guerra, supra, at pp. 1143-1145; People v. Ayala, supra, 23 Cal.4th 225, 271; People v. Clark (1993) 5 Cal.4th 950, 1012; People v. Feaster (2002) 102 Cal.App.4th 1084, 1094; People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1276.)

III. The Imposition of a Consecutive Sentence

Defendants final contention is that the imposition of a consecutive sentence of eight months for the conviction of the Raleys burglary (Count 4) based upon facts that were neither pled nor determined by a jury violated his "right to a jury trial and proof beyond a reasonable doubt under the federal Constitution" as articulated in Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856]. As defendant concedes, the definitive resolution to his argument is found in the California Supreme Courts opinion in People v. Black (2007) 41 Cal.4th 799. The court in Black, supra, reaffirmed its conclusion that imposition of consecutive sentences "does not violate a defendants Sixth Amendment right to [a] jury trial" under Blakely and Cunningham. (Black, supra, at p. 821.) We are bound by the ruling in Black, supra, at page 823, to conclude that defendants constitutional right to jury trial was not violated by the trial courts imposition of a consecutive sentence. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Robertson (2003) 113 Cal.App.4th 389, 393.)

Accordingly, the judgment is affirmed.

We concur:

Stein, Acting P. J.

Margulies, J.


Summaries of

People v. Robinson

Court of Appeal of California
Jul 1, 2008
No. A118314 (Cal. Ct. App. Jul. 1, 2008)
Case details for

People v. Robinson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRUCE ALAN ROBINSON, Defendant…

Court:Court of Appeal of California

Date published: Jul 1, 2008

Citations

No. A118314 (Cal. Ct. App. Jul. 1, 2008)