Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF007701. Judith C. Clark, Judge.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Donald Eugene Sharp.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant Dontay Lewis Goins.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lynne McGinnis and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In March and April 2004, a string of robberies were committed at two Pizza Hut restaurants, a Carl’s Jr. restaurant, and the A&M video store in the Hemet area. Defendant Dontay Lewis Goins confessed to the crimes. In addition, Goins confessed to picking up a prostitute in April 2004 with his two friends and taking her to a deserted area, where she was forcibly raped by one of the men while Goins held either a gun or pepper spray to her head. Defendant Donald Eugene Sharp III was connected to the robberies through circumstantial and DNA evidence, and he was connected to the rape of the prostitute though DNA evidence and eyewitness identification. Both Sharp and Goins were convicted, by separate juries, of one count of rape in concert; Sharp was convicted of 12 counts of robbery; and Goins was convicted of 14 counts of robbery. Defendants now contend jointly and individually as follows:
1. Goins contends his involuntary confession was improperly admitted at trial.
2. Sharp claims that there was insufficient evidence presented to support his convictions in counts 3 through 11, and Goins claims the evidence was insufficient to sustain his conviction in count 9.
Goins misstated in his opening brief that he was contesting his conviction in count 7, but clearly he is attacking count 9.
3. Sharp claims his conviction in count 9 must be reversed due to an improper pinpoint instruction on constructive possession, and Goins joins.
On February 14, 2008, Goins filed an errata to his brief joining in this argument.
4. Goins claims that there was insufficient evidence presented to support his conviction of rape in concert, and Sharp joins.
On February 1, 2008, Sharp filed an errata to his brief that he was joining in any of Goins’s arguments that benefitted Sharp.
5. Sharp contends that the trial court erred by giving a flight instruction.
We affirm the judgments.
I
PROCEDURAL BACKGROUND
Goins’s jury found him guilty of 14 counts (counts 1-13 & 16) of robbery (Pen. Code, § 211) and one count (count 15) of rape in concert (§ 264.1). Sharp’s jury found him guilty of 12 counts (counts 3-13 & 16) of robbery, and he was also found guilty of one count (count 15) of rape in concert.
All further statutory references are to the Penal Code unless otherwise specified.
Counts 1 and 2 were dismissed against Sharp after the presentation of evidence. Count 14 and numerous gun allegations were also dismissed against both Goins and Sharp.
The trial court sentenced Sharp to a total term in state prison of 15 years. Goins was sentenced to 14 years in state prison. Defendants filed timely notices of appeal.
II
FACTUAL BACKGROUND
A. Testimony in Front of Both Juries
1. Stanford Street Pizza Hut robberies
a. Counts 1 and 2—first robbery, on February 17, 2004
On February 17, 2004, Janna Evans (count 1) was working as the closing manager at the Pizza Hut restaurant located at 45795 Stanford Street in Hemet. Joshua Helmick (count 2) was working with Evans. After closing the restaurant around midnight, Evans locked the doors to the restaurant. Helmick walked out with her, carrying a pizza. They walked around to the back of the restaurant where their cars were parked. Suddenly, three men emerged from the bushes carrying guns and yelling, “Get down.” Evans was struck in the head while she was trying to get down on the ground. Evans was told not to look at the men and to take off her jewelry. Evans gave her jewelry to the men.
Helmick did not testify at trial.
Evans was then forced into the trunk of her car, but they did not lock her in. While Evans was in the trunk, she heard one of the men say, “Don’t forget the pizza,” and then they left. Helmick got her out of the trunk. The pizza Helmick had been carrying was missing. Evans discovered that her purse was missing, which was later found on a street four or five miles away. Her cellular telephone was missing from her purse when it was recovered.
b. Count 6—second robbery, on March 25, 2004
At 9:15 p.m., on March 25, 2004, Jessica Miller (count 6) was working as the general manager. Another employee was working as a cook and a waiter. Miller was in the back of the store on the phone when a gun was held to her head. The man’s face was completely covered by a stocking, he was wearing gloves, and he was wearing a gray hooded sweatshirt with a logo. His voice sounded as though he was Black. Miller was forced to take money ($160) out of the safe and give it to the robber; the robber knew where the safe was located. Miller was then ordered to the ground. Another robber, who was wearing a nylon mask, red sweatshirt, and carrying a gun, ordered the other employee to the floor.
The robber then ran off through the back door to a “boxy” car with square headlights. Miller was five feet six inches tall; the robber was a “full head” taller than her.
2. State Street Pizza Hut robberies
a. Counts 3, 4, and 5—first robbery, on March 19, 2004
On March 19, 2004, Jack Martin (count 4) was the manager at Pizza Hut located at 490 North State Street in San Jacinto, which was adjacent to Hemet. Andrew Cummins (count 3), Mike Suter (count 5), and two other employees were also working on that night.
Around 11:00 p.m., two men wearing dark clothing and nylon stockings or “do-rags” over their faces came in the front door. One of the men had a gun in his hand. Cummins and another employee were ordered to get down on the ground.
Martin was doing inventory in the kitchen area when one of the robbers entered the kitchen. The robber was average height and weight, was completely covered with clothes, and was wearing gloves. Martin and another employee were ordered to the front of the store. Martin was told not to look at the man and to lie down on the ground.
Cummins was ordered to open all of the registers, which were emptied by the robbers. Martin was ordered to open the safe. While Martin was opening the safe, one of the robbers held a gun to his head and told him that he had 20 to 30 seconds to open the safe or he (the robber) would start shooting the employees. Martin gave the money in the safe (which was at least $300) to the robber. The two robbers then left through the back door.
Just then, Suter was returning from delivering a pizza. As he exited his truck, two men came “flying out the back door” of the Pizza Hut. They ordered Suter to the ground, claimed they would shoot him, and ordered him to give them all of his money. The two men took $30 Suter had from the pizza delivery and ran away. The men sounded like they were Black.
After the robbery, two men were observed running from the back of the Pizza Hut restaurant by a person who was across the street. They ran quickly to a car, which was described as a four-door gray Nissan Altima.
b. Counts 10 and 11—second robbery, on April 11, 2004
Martin (count 10) was again working at the Pizza Hut restaurant on April 11, 2004. Around 11:00 p.m., Martin was in his office in the back of the store talking to Christina Kincaid, who was working as a delivery driver that night. Suter (count 11) was washing dishes. Another employee was exiting the back door of the store when a person ran in and tackled him. The intruder then pointed a gun at Martin and said, “Where’s they [sic] cheese at?” Kincaid was called a “bitch” and was pushed to the floor by one of the robbers. They were told by the robbers not to look at them.
Kincaid said that two men tackled Spaulding.
When Kincaid was pushed to the ground, she got a good look at the shoes one of the robbers was wearing, which were blue and white basketball shoes that had a Michael Jordan symbol on the front. Both men were wearing a stocking or mask over their faces and long sleeved clothing, which was very similar to the clothing worn in the first robbery. Suter was ordered to the ground, his pockets were searched, and his money and fanny pack were taken.
Martin gave the robbers the $200 or $300 that was in the safe. All of the employees were ordered to the ground. The robbers also took a bag of money to be deposited totaling $1,061 from Martin’s desk. All of the employees were then forced into the walk-in refrigerator, and the robbers left.
c. Counts 12 and 13—third robbery, on April 16, 2004
Suter was working again on April 16, 2004. At 10:30 p.m., Suter was sitting in the restaurant taking a break. Kincaid (count 13) was working as a waitress and Francisco Ramires (count 12) was working as the store manager. Kincaid went to the front door to lock it around 11:00 p.m. At that same time, three men wearing stockings or do-rags over their faces and wearing sweatshirts with hoods came in the front door. One was carrying a gun. Kincaid dropped to her knees near the cash registers. The men said to get down. One of the men then called Kincaid a White “bitch” and pulled her by her hair to the back of the restaurant. One of the men was wearing the same Michael Jordan blue and white shoes from the first robbery. All three were wearing white gloves.
The three men apparently did not see Suter sitting in the booth, so he ducked down and hid. Suter eventually ran out of the restaurant and called 911 from a nearby store.
Ramires was in his office in the back of the restaurant when two of the men approached him; one was carrying a gun. One of the robbers told Ramires to give them the money. Ramires gave them money from the cash registers in the front of the store and one in the back. Ramires also gave them money from the safe. The second robber took money from Ramires’s pockets. Ramires could see the skin of two of the robbers, which was Black. Approximately $491 was taken.
One of the robbers went through Kincaid’s apron and took money out of it that she had from waitressing. The third robber helped the others put Ramires in the walk-in refrigerator and punched Ramires in the face. They then left through the back door.
Video surveillance from a liquor store near the Pizza Hut showed Sharp and Goins enter the liquor store prior to the instant robbery. The videotape was shown to the jury.
Martin indicated that there was only one robbery at the Pizza Hut in the two and one-half years following April 16, 2004.
3. Counts 7, 8 and 9—Carl’s Jr. robbery on March 25, 2004
On March 25, 2004, Hope Villalobos (count 7) worked as the assistant manager of the Carl’s Jr. restaurant located on the corner of Oakland and San Jacinto Streets in Hemet. Claudina Gill (count 8), Sandra Espinoza (count 9), and another employee were also working. Espinoza worked as a cook and cleaner; she had no other responsibilities. Gill was working at the drive-through, taking orders and conducting cash transactions.
About 10:15 p.m., Espinoza was out in front of the restaurant on a break, where she saw two Black men, whose faces she could see, talking together. One was wearing a red sweatshirt.
Espinoza went back into the kitchen area. The man with the red sweatshirt whom she had seen outside entered the kitchen and put a gun to another employee’s head. The man’s face was covered with some black material. The man said, “I’ll blow your head away.” Espinoza and the other employee were ordered to the ground. Nothing was taken from Espinoza’s presence.
Villalobos was exiting the bathroom when the other man whom Espinoza had seen entered the restaurant, walked right toward Villalobos, grabbed her by the shirt, and pointed a gun at her head. He was wearing some type of mask. The robber told Villalobos that she needed to open the safe that was in her office and pushed her toward the office. Villalobos had not told the man where the safe was located. Villalobos was unable to open the safe because the armored company had the second key. The robber threw Villalobos to the floor and told her not to get up or he would shoot her.
Gill first became aware of the robbery when she turned around and one of the men, who was wearing shorts and a black sweater with white sleeves, was pointing a gun at her. The man grabbed Gill and put the gun to her ribs. Two customers who were at the drive-through observed a Black man, who was wearing a red hooded sweatshirt and stocking mask, jump over the counter and put a gun to the drive-through cashier’s head. The customers drove quickly away from the restaurant and called the police.
The robber forced Gill to open all three cash registers, and the robber took all of the cash. Gill was then ordered to the ground.
The entire incident was videotaped on a surveillance video and shown to the jury. On the videotape, Gill is shown giving a robber wearing a black sweatshirt money, not the one in the red sweatshirt. All three robbers had Black skin.
Another Carl’s Jr. customer, Budd Cox, was waiting in the drive-through when he saw three people walk through the parking area. All three were wearing hooded sweatshirts, one being a red and white one, and one of the men appeared to be Black. They were looking around suspiciously, and then when they got to the street, they started running. They ran into a driveway area where Cox lost sight of them. A short time later, a gray or silver metallic car with four doors and a black stripe down the side quickly drove away from that same area.
4. Count 15—rape in concert of Michelle C.
On April 17, 2004, Michelle C. was living at the Hemet East Motel in the Hemet area. She made money at the time either by collecting cans or through prostitution.
On that night, she was walking on Florida Avenue back to her motel when a car containing three Black males drove up and asked if she wanted a ride. Michelle recognized the front passenger, whom she identified in court as Goins, as someone she had previously been paid by a drug dealer to have sex with. Michelle climbed into the backseat. Sharp was sitting in the backseat. She could not identify the driver.
Michelle told them she was going back to her motel. However, she was driven behind the Rite Aid off of Florida Avenue in Hemet. After the car stopped, Goins and the driver went to the trunk and retrieved guns that they then put in Michelle’s face. Goins pulled Michelle out of the car.
Goins pulled off Michelle’s pants. Sharp then got out of the car and came around to where Michelle was standing. Michelle was facing the car. Sharp put her left leg up on the back of the car and tried to penetrate her vagina with his penis. He was wearing a condom because Michelle had asked him to put one on. Sharp penetrated her vagina “[v]ery little.”
Sharp tried to penetrate her vagina three separate times. The first two times, he was only able to penetrate “[v]ery little.” Michelle told Sharp that she was on her period and she had a tampon in. Goins took it out. On his third attempt, Sharp was able to get “a little bit of the head” of his penis into her vagina. His penis was too big for her. While Sharp did this, Goins held a gun to Michelle’s face.
At trial, Michelle first testified that Sharp took out the tampon, but then said it was Goins.
Sharp took off the condom and threw it on the ground. Goins pulled a silver necklace that Michelle was wearing off of her neck. Michelle was also missing $10 after the incident.
They then told Michelle to lie face down on the ground and not look up or they would blow her head off. As they drove away, she recalled the license plate was personalized, “RICCE1.” Michelle then put on her pants and walked barefoot to a nearby phone located at the Grocery Outlet. She dialed 911 but then saw a police officer nearby.
Michelle claimed that the three men never offered her money for sex. Michelle claimed that she did not work when she was on her period. She only engaged in sexual acts at her home or in a motel. She did not do it in public. She also would only have one customer at a time for safety reasons. The officers to whom she talked on that night knew she was a prostitute, as it was well known in the Hemet area that she was a prostitute.
Michelle had been on probation for using drugs. She was not using drugs that night. Michelle was bipolar and took medication for panic attacks and anxiety attacks. She was not on bipolar medication the night of this incident. Her disorder affected her memory. After this incident, she essentially blacked out and could not remember anything for two years. She never went to a doctor that night. Michelle admitted that she needed money that night to pay for her motel.
Michelle denied telling police prior to trial that Goins tried to have anal intercourse with her, that she performed oral sex on all three of the men for $60, and that they took the money back. It would have been a lie if she had said it. She did not tell an officer that she took off her own pants. She did not tell an officer that the encounter began consensually. Michelle denied that she told an investigator prior to trial that she put her foot up on the bumper on her own to help Sharp penetrate her.
Hemet Police Officer Patrick Long was dispatched to the Grocery Outlet based on a call that a robbery and rape had occurred. Michelle was at the location; she was upset and crying. Michelle did not appear to be under the influence of any drug.
Michelle told Officer Long that three Black males in a silver four-door compact car had picked her up. When they pulled in the back of the Rite Aid, Michelle was forced to give her $9 to Goins. Goins then pulled her out of the car and pushed her head on the trunk. The other two had guns. Michelle took off her own pants, but Goins pulled down her underwear.
Michelle told Officer Long that she was on her period and that the front passenger pulled her tampon out. The front passenger then attempted to penetrate her anus, and then her vagina. He was wearing a condom. He penetrated her for three to five seconds in the vagina. She was then ordered to the ground and told that they would blow her head off if she looked up.
Officer Long searched the area behind the Rite Aid. He found a used condom and a tampon with blood on it.
DNA analysis of the condom recovered was consistent with Sharp and Michelle being contributors. The likelihood that Sharp was a contributor was 1 in 6.9 million Black males. There was no seminal fluid. Goins was excluded as a contributor.
5. Count 16—robbery of A&M Video, on April 25, 2004
Robert Carson owned the A&M video store located on Florida Avenue in Hemet. On April 25, 2004, a young Black man came into the store and looked at the video games. Sometime later, the same young Black man entered the store with another Black male. Carson heard one of them say to the other, “This is do-able.”
Sometime later, two Black males, who were wearing black stockings over their faces, entered the store. One was carrying a gun. The taller of the two jumped over the counter and grabbed Carson. Carson went down to the ground. The robber emptied the contents of the cash register (which totaled $250) into a black satchel. They took numerous video games and DVD systems.
As Carson dialed 911, he observed a gray or silver car speeding out of the parking lot. He did not recall that he told officers that it was a Nissan Altima. It had a personalized license plate.
A glove was recovered from in front of the store. The glove was analyzed for DNA. Sharp could not be excluded as a major contributor to the DNA on the glove, but Goins was excluded as a donor. The likelihood that Sharp was a contributor was 1 in 26 million Black males.
6. Other evidence
In 2004, Sharp owned a cellular telephone. According to records for Sharp’s cellular telephone, he either made or received phone calls on his phone that were all relayed from a cellular telephone tower that was located in the middle of Hemet at the times and dates of all of the robberies. All of the robberies occurred in close proximity in Hemet, within approximately a five-mile radius.
Goins was arrested on April 27, 2004. Goins and Sharp were oftentimes seen together during the period of time the robberies occurred.
Sharp lived at 225 West Fruitvale Avenue in Hemet, which was near the robberies. A search of his residence was conducted on April 27, 2004. A red hooded sweatshirt was found in Sharp’s bedroom closet. It had the letters “Ecko Limited, L.T.D.” written on the front. A gray hooded sweatshirt with “FUBU” letters on it was found in his bedroom.
The videotape footage from the Carl’s Jr. robbery showed one of the robbers in the exact same red sweatshirt. Miller, the victim in count 6, said the FUBU sweatshirt worn by one of the robbers was similar to the one recovered in Sharp’s bedroom. One of the customers at the drive-through at Carl’s Jr. identified the red sweatshirt found in Sharp’s bedroom as appearing to be the same one worn by one of the robbers.
Several days after the search, Sharp got into a car accident in his Nissan Altima, that had the personalized license plate “RICCIE1.” He was detained at the scene. There was a “great deal” of clothing in the backseat and trunk of his car. Some of it was still on hangers. The car was similar to the car seen leaving the Pizza Hut restaurant on March 19.
Hemet Police Detective Michael Elmore had spoken with Sharp on the telephone on April 28, 2004, and they had agreed to meet at the police station on April 29.
A pair of white and blue Michael Jordan basketball shoes were found in Sharp’s trunk. Kincaid identified the shoes as exactly the same ones worn by the robber during the April 11 and April 16 robberies of the Pizza Hut.
B. Testimony in Front of Goins’s Jury Only
When Goins was arrested on April 27, 2004, he initially told officers that he was Sharp. Detective Elmore interviewed Goins on that day. The audiotape of the interview was played for the jury, and they were given transcripts.
According to the transcript of the audiotape, Goins first denied that he was involved in the A&M video store robbery. However, he finally agreed to confess because “I want to do the right thing.” Goins admitted his involvement in the A&M robbery, but refused to name any of the other participants. Goins claimed he was carrying a gun, but it was not real. Goins only took video games.
The transcript given to the jury has been included in the clerk’s transcript as an exhibit to Goins’s motion to suppress. We have reviewed exhibit 214, the transcript given to the jury, and find that it is the same as the one included in the clerk’s transcript.
Goins admitted involvement in all five of the Pizza Hut robberies. Goins also admitted that he was involved in the Carl’s Jr. robbery; he identified himself in the videotape. Finally, Goins admitted that he was with Sharp when they picked up Michelle and took her behind the Rite Aid. Michelle agreed to perform oral sex on all three men for $20 each. She performed oral sex, and they made her give back the money. Goins took her pepper spray, and she gave back $40 they had paid her. Goins then said that his “homeboy” bent Michelle over the car and “did what he had to do to her,” while Goins held pepper spray to her face. Goins indicated that his friend “fucked” her in the “ass,” because she was on her period. Someone then took out her tampon. Goins’s friend then “did it in the vagina.” Goins told Michelle not to move. They then left her lying on the ground.
C. Defense Presented to Both Juries
1. Sharp’s defense
Sharp recalled Detective Elmore, who had interviewed Michelle on April 28. She denied that she had been paid $60 to perform oral sex on the three men. However, she also told Detective Elmore that two of the suspects ejaculated while she performed oral sex. Michelle told a district attorney investigator that she put her own foot up on the bumper to help Sharp penetrate her. Michelle could not identify Sharp from one of the photographic lineups.
2. Goins’s defense
Michelle identified another man, Dontay Terry, not Goins, as the person who was in the passenger seat when she was raped at gunpoint from a photographic lineup.
III
ADMISSION OF GOINS’S CONFESSION
Goins contends that his confession was involuntary and coerced and therefore was improperly admitted by the trial court.
A. Factual Background
Goins brought a motion to suppress his pretrial statement on the grounds that his statement was involuntarily made. The trial court had reviewed the transcript and the audiotapes prior to making its ruling.
Goins’s confession, as it is reflected in the transcript, is set forth, ante. Prior to confessing, Goins denied any involvement in the A&M robbery and the officers continued to tell him that he was lying. At one point, Goins asked the detective whether he could do two to seven years in jail if he committed the robbery. The detective responded, “You’re 17 man, give me a break.” Goins continued to deny any involvement in the robbery. Goins then asked if he confessed whether he would be taken to jail; the detectives responded that he “fucked up” and could not go home. Later, Goins again asked how many years he would get if he confessed to armed robbery. One detective responded, “You’re not an adult man.” The other detective responded that he would not be going home and that they had nothing to do with how much time he would get. They encouraged him to assist in the investigation. One of the detectives also stated, “Y’know the purpose of the juvenile courts, they hate to lock people up so they rehabilitate the offender. That’s the purpose of the juvenile courts.” They again encouraged him to do the right thing.
Goins then told them that he did not want to do any time, and one of the detectives responded, “Yeah, we understand that. Unfortunately[,] we don’t have a part in that.” The other detective stated, “That’s not our decision.” One of the detectives offered to get the Penal Code for the sentencing ranges, but the other said, “But those terms in the [P]enal [C]ode are for adults. You’re not an adult.” The other detective responded, “And all that stuff is left up to the Judge, the probation people, all that shit.”
Goins then asked the detectives, if they were the judge, how much time they would give him. The detectives told him they would throw the book at him because he was lying and came across as though he did not care.
Goins asked if he would be convicted of a felony and whether it would go on his record. One of the detectives indicated that since he was a juvenile, it may be sealed when he reached adulthood. It would depend upon Goins’s attorney. At that point, Goins said that he was going to “do the right thing” and confess.
Later, just prior to Goins admitting involvement in the rape of Michelle, he asked the detectives what amount of time he was going to get for the robberies. The detective gave him an estimate but told him, “I don’t have anything to do with this shit,” that it was only his opinion, and that he could not be held to it.
Goins presented the testimony of clinical psychologist Dr. Joy Smith-Clark at the suppression hearing. She performed some intelligence tests on Goins. Goins tested in the low average range of intelligence on the verbal score, which tested his ability to function in a school setting. He scored in the average range in the nonverbal intelligence test, which was his brain function and intelligence, for all normal adults. Goins was “kind of immature,” and ready to please. Goins would have trouble with complex words and ideas; he could understand simpler matters and words.
Detective Elmore also testified at the hearing. Goins spoke with Detective Elmore and the other detective for 90 minutes. Goins did not appear to be under the influence of any drugs. Goins appeared to understand the questioning. Nothing unusual happened during the interview. There was no discussion prior to the interview that they could talk to the district attorney about trying him as a juvenile, instead of an adult.
In ruling on the motion, the trial court found the length of the interview was not too long since there were so many different crimes to discuss. The detectives were even in tone in their questioning and offered Goins water and gum. After listening to the audiotapes and reading the transcript, it was clear that Goins understood what was happening and was not affected by any mental deficiency.
Goins was cognizant enough not to name his codefendant in the interview. This was very significant to the trial court, as it took a certain mental development. Furthermore, Goins had previous experience with the legal system. There were no promises or inducements made by the detectives in regard to him being tried as a juvenile or adult. The trial court ruled that, based on the totality of the circumstances, Goins’s confession was voluntarily made.
B. Goins’s Confession Was Voluntarily Made
“An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation].” (People v. Weaver (2001) 26 Cal.4th 876, 920.) Where a defendant claims his confession was involuntary, the People have the burden to show, by a preponderance of the evidence, that the statements were made voluntarily. (People v. Jones (1998) 17 Cal.4th 279, 296.) Under both state and federal law, the courts apply a totality of circumstances test to determine voluntariness. (People v. Haley (2004) 34 Cal.4th 283, 298; People v. Bradford (1997) 14 Cal.4th 1005, 1041.)
“A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. [Citations.]” (People v. Clark (1993) 5 Cal.4th 950, 988.) Police are prohibited from using only those psychological ploys that, under all the circumstances, “‘are so coercive that they tend to produce a statement that is both involuntary and unreliable.’” (People v. Jones, supra, 17 Cal.4th at p. 298, quoting People v. Ray (1996) 13 Cal.4th 313, 340.) Further, “where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary . . . .” (People v. Boyde (1988) 46 Cal.3d 212, 238.)
“In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576, quoting People v. Memro (1995) 11 Cal.4th 786, 827, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [93 S.Ct. 2041, 36 L.Ed.2d 854]; see also People v. Holloway (2004) 33 Cal.4th 96, 114.)
On appeal, “‘the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 471.)
Here, we believe the trial court properly determined that Goins’s statement was voluntarily made. After reviewing the entire interview, it is clear that Goins was aware that if he confessed he was not guaranteed any particular sentence. There is nothing to support that Goins confessed because he was promised that he was going to be treated as a juvenile offender. Although the detectives did apparently believe that he would be tried as a juvenile offender, they repeatedly informed him that they could not guarantee him a particular sentence. They also informed him that under no circumstances would he be going home.
Goins was treated well during the interview, being given water and gum and offered to use the bathroom. It was not a coercive environment.
Further, Goins was able to hold his own with the detectives. He still continually refused to give up the names of his codefendants. There is no indication that any type of mental deficiency existed that caused him to confess against his will.
Finally, Goins himself stated that he was choosing to confess because it was the right thing to do, not because he had been promised any particular sentence. Since there is no evidence to the contrary, we accept that Goins confessed because he thought it was the right thing to do and was not coerced into making an involuntary confession.
Based on the totality of the circumstances, Goins’s statement was voluntarily made.
IV
INSUFFICIENT EVIDENCE OF THE ROBBERY OF SANDRA ESPINOZA (COUNT 9) AND INSTRUCTIONAL ERROR
Goins contends that there was insufficient evidence presented to support his conviction of the robbery of Espinoza in count 9, and Sharp joins. Sharp additionally claims, joined by Goins, that the jury was given an improper pinpoint instruction on constructive possession, which also requires reversal on count 9.
A. Standard of Review
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
B. Analysis
Sharp and Goins were convicted of robbing Espinoza. “Section 211 defines robbery as the felonious taking of personal property in the possession of another from his or her person or immediate presence and against his or her will accomplished by means of force or fear.” (People v. Brew (1991) 2 Cal.App.4th 99, 103; see also § 211.) The crime requires a taking (1) from the victim’s person or immediate presence and it must be (2) accomplished by the use of force or fear. (People v. Marquez (2000) 78 Cal.App.4th 1302, 1308; see People v. Avery (2002) 27 Cal.4th 49, 53, fn. 4.)
Here, Sharp and Goins claim that since Espinoza was only working in the kitchen as a cook on the night that the Carl’s Jr. was robbed, she did not have any authority over the money that was taken, and nothing was taken from her person. Accordingly, the element of possession required for robbery has not been shown by the evidence.
A victim’s possession of property can be either actual or constructive, and it need not be exclusive. (People v. Miller (1977) 18 Cal.3d 873, 880-881, overruled on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068.) In People v. Nguyen (2000) 24 Cal.4th 756, the court noted that “the theory of constructive possession has been used to expand the concept of possession to include employees and others.” (Id. at p. 762.) However, Nguyen affirmed that some form of possession — actual or constructive — is required under California law. (Ibid.)
In determining whether employees have constructive possession of property taken from a business, our colleagues in other courts have held that “business employees—whatever their function—have sufficient representative capacity to their employer so as to be in possession of property stolen from the business owner.” (People v. Jones (2000) 82 Cal.App.4th 485, 491; accord, People v. Gilbeaux (2003) 111 Cal.App.4th 515, 521.) In the instant case, the trial court instructed the jury at the People’s request, along with the standard robbery instruction contained in Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1600, with the above-quoted language. However, in People v. Frazer (2003) 106 Cal.App.4th 1105 (Frazer), that court held that the court must engage in a fact-based inquiry regarding constructive possession by an employee victim; hence, not all employees have de facto representative capacity. (Id. at p. 1115.)
In Frazer, the defendant was convicted of eight counts of robbery of eight Kragen Auto Parts employees. The robberies occurred at two different Kragen Auto Parts stores on two different dates. On each occasion, there was a store manager present who could open the safe; the other six employees were “nonmanagerial employees” who were in the stores helping customers, stocking merchandise, and “putting parts away.” (Frazer, supra, 106 Cal.App.4th at pp. 1108-1109.) In both instances, the store manager opened the safe for the robber while the other employees lay on the store floor. (Id. at p. 1110.) The court concluded that “a fact-based inquiry regarding constructive possession by an employee victim is appropriate.” (Id. at p. 1115.) It then concluded, “[T]he proper standard to determine whether a robbery conviction can be sustained as to an employee who does not have actual possession of the stolen property is whether the circumstances indicate the employee has sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property. Under this standard, employee status does not alone as a matter of law establish constructive possession. Rather, the record must show indicia of express or implied authority under the particular circumstances of the case.” (Ibid.)
Applying this standard, the Frazer court concluded there was sufficient evidence to support the multiple robbery convictions. “[T]o the extent nonmanagerial employees could access the cash registers and/or product inventory in order to service the customers,” the court explained, they “could reasonably be viewed as having implied authority over whatever property was necessary to handle the sales, including the money in the safe through the manager.” (Frazer, supra, 106 Cal.App.4th at p. 1119.) The jury could reasonably have concluded “that the entire staff interchangeably stocked shelves, serviced the customers, and had access to the cash registers and (via the manager) the safe, with their primary duties depending on how they were scheduled for that particular shift.” (Ibid.)
However, People v. Jones, supra, 82 Cal.App.4th 485 involved a takeover robbery at a store where a number of employees, whose duties did not normally involve the handling of cash or even contact with the public, were victimized. The Jones court found that the employees, including inventory clerks, sales associates, and personnel managers, sufficiently represented the store to establish a possessory interest in their employer’s property to be robbery victims. (Id. at pp. 490-492.) After an extensive review of California precedent addressing employee possession cases, the Jones court concluded, “California follows the long-standing rule that the employees of a business constructively possess the business owner’s property during a robbery. [¶] . . . [¶] . . . [B]usiness employees — whatever their function — have sufficient representative capacity to their employer so to be in possession of property stolen from the business owner.” (Id. at pp. 490-491.)
In People v. Gilbeaux, supra, 111 Cal.App.4th 515, several employees, including a checker and assistant manager, were present at a grocery store when two armed men committed a robbery. Also present were two janitors employed by an independent cleaning service. The defendants were convicted of robbery of all of the persons present in the store, including the janitors. (Id. at pp. 518-519.) On appeal, the court followed the reasoning in Jones and concluded that the janitors were “part of the group of workers in charge of the premises at the time of the robbery,” and the fact they had no control over the cash in the store was of no moment. (Id. at p. 523.) They were found to have sufficient representative capacity to have a possessory interest in the store’s property. (Ibid.)
The California Supreme Court has granted review (People v. Scott, review granted Nov. 16, 2005, S136498) to resolve this split in authority. It delineated the issues to be decided as, “Did the trial court err in instructing the jury that all employees have constructive possession of their employer’s property during a robbery, and, if so, what is the proper standard for determining whether an employee has constructive possession of the employer’s property during a robbery?” Clearly, whatever conclusion we reach in the instant case will eventually be approved of, or rejected by, the California Supreme Court. We conclude that the better approach is that set forth in Jones and followed in Gilbeaux.
Initially, as stated by the People during oral argument, it does appear that the California Supreme Court will agree with this conclusion. In Nguyen, although the court concluded that a mere visitor to a store who was held at gunpoint with the employees did not constitute a separate robbery because the visitor had no possessory interest in the store’s property, it did state that “the theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.” (People v. Nguyen, supra, 24 Cal.4th at p. 762.). In its findings, Nguyen did not discuss the factual bases for the constructive possession findings with respect to the eight employee-victims of the robbery. (Id. at pp. 758-759.) Although some of these victims were robbed of personal property, there was no evidence regarding removal of personal property from five of the eight employee-victims, and some of them did not even testify as to their duties at the time of the robbery. (Ibid..)
The Nguyen court also noted it had previously held that “‘“a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property.”’” (People v. Nguyen, supra, 24 Cal.4th at p. 761, quoting People v. Miller, supra, 18 Cal.3d at p. 880.) It also cited an extensive list of cases, including People v. Arline (1970) 13 Cal.App.3d 200, 202 (a case involving a conviction for robbery of an employee whose coemployee had possession of the key to the cash box at the time of the robbery) as examples of the expansion of the theory of constructive possession to include employees who are not necessarily in control of the cash or property in the store. (Nguyen, at pp. 761-762.) Based on our review of Nguyen, it does appear likely that the court will conclude that the more expansive definition in Jones and followed in Gilbeaux is proper.
Further, as a matter of public policy, defendants should be found to have committed robbery against Espinoza. Here, Espinoza was working as a cook and cleaner on the night of the robbery. She was in the kitchen when the robbery occurred. Like those employees who were working the cash registers, she was ordered at gunpoint to get on the ground.
We see no reason to distinguish Espinoza from the other employees. All of these employees were working at the restaurant and were threatened by defendants when they invaded their workplace for the purpose of robbery. All of them were ordered to obey defendants’ commands and were equally threatened by defendants’ threatening to use the gun against them. Although another employee was forced to give the money to the defendants, Espinoza faced the same risks as the other employees.
Based on the foregoing reasons, we conclude that the proper standard for determining whether an employee has a possessory interest is that set forth in Jones, and followed in Gilbeaux.
Defendants additionally claim that the trial court erred by instructing the jury in accordance with Jones and Gilbeaux as it removed an element of the charged offense in violation of their due process rights. The jury was instructed, “Business employees -- whatever their function -- have sufficient representative capacity to their employer so as to be in possession of property stolen from the business owner.” Since we have concluded that this is an appropriate standard for determining possession by an employee, we reject that the trial court erred in instructing the jury with this pinpoint instruction. The California Supreme Court will ultimately decide if the instruction was erroneous, but we conclude that it was properly given in this case.
V
INSUFFICIENT EVIDENCE OF REMAINING ROBBERY CONVICTIONS IN COUNTS 3 THROUGH 11
Sharp claims that the evidence he committed the robberies in counts 3 through 11 (the State Street Pizza Hut robberies committed on March 19 and April 11, the robbery at Carl’s Jr. committed on March 25, and the Stanford Street Pizza Hut robbery committed on March 25) was insufficient, as he was never identified by any party as participating in the robberies.
Since Goins confessed to these crimes, and we concluded, ante, that his confession was properly admitted, we do not address this argument as to him.
We set forth the standard of review for sufficiency of the evidence claims and the elements of robbery, ante.
It is true that the prosecution coupled weak and strong cases together. However, all of the robberies for which Sharp was convicted were committed during a two-month period, by either two or three Black men, within a five-mile radius in Hemet. All of the robberies involved men wearing masks, one of the men carrying a gun, and the employees being ordered to the ground. Either the safe or cash registers were emptied in all of the robberies. The robbers wore gloves. There were strong similarities between all of the robberies, and it was reasonable for the jury to consider them all together.
Furthermore, Sharp certainly had the opportunity to commit the robberies, as he lived in the area and cellular telephone records placed him in the area at the time of the robberies.
Sharp concedes that he committed the A&M robbery, where a Nissan Altima similar to the one he owned was seen leaving the scene, and his DNA was found on a glove outside the store. He also concedes counts 12 and 13, which involved the third robbery committed at the State Street Pizza Hut, conceivably because he was seen in the vicinity of the Pizza Hut prior to the robbery, and a pair of shoes identical to ones worn by one of the robbers was found in his car. The jury certainly could conclude that Sharp committed these robberies; based on this conclusion, the other robberies could reasonably be considered to have also involved Sharp due to their similarity.
As for counts 3, 4 and 5 (March 19 Pizza Hut robbery), a Nissan Altima similar to the one driven by Sharp was seen leaving the robbery. Although Sharp now provides evidence that Nissan Altimas were popular cars at the time the crimes were committed, he did not present this evidence below. The jury could reasonably deduce from this evidence, in addition to the similarity and vicinity of all the robberies, that Sharp was involved in this robbery. (People v. Moon, supra, 37 Cal.4th at p. 22.)
Moreover, the jury could reasonably deduce that Sharp was involved in the second robbery of the State Street Pizza Hut committed on April 11, 2004. The robber wore the same Michael Jordan shoes as worn by one of the robbers in the April 16 robbery and found in Sharp’s car. The jury could reasonably conclude that, again with all of the above considerations, he was involved in this robbery as well.
Sharp claims that Michael Jordan shoes are very popular and could have been worn by someone else. He never presented such evidence below.
As to counts 7, 8 and 9, the Carl’s Jr. robbery committed on March 25, 2004, the jurors were shown a videotape of the Carl’s Jr. robbery that showed the robbers wearing sweatshirts similar to the ones found at Sharp’s residence, and there was no evidence presented contradicting that they were the same sweatshirts. In the other robbery committed on the same night at the Stanford Street Pizza Hut restaurant, the victim also identified a sweatshirt found at Sharp’s residence as similar to one worn by the robbers. Although Sharp now claims that these sweatshirts were very popular at the time, he presented no evidence below that the sweatshirt was not the same. It is inconceivable that two different groups of robbers committed these two similarly conducted robberies, committed within miles of each other, on the same night, wearing similar clothes. The jury was in the best position to view the videotape from the Carl’s Jr. restaurant and determine if it was the same sweatshirt. They could then reasonably deduce that Sharp was involved in both of these robberies.
Based on the foregoing, although Sharp was not identified as being involved in the robberies for which he was convicted in counts 3 through 11, we believe that the jury could reasonably infer that Sharp was involved based on all the evidence presented.
VI
INSUFFICIENT EVIDENCE OF RAPE IN CONCERT
Goins claims, presumably joined by Sharp, that insufficient evidence supports their convictions of rape in concert based on the completely inadequate testimony of Michelle. We set forth the standard for reviewing a sufficiency of the evidence claim, ante.
Under section 264.1, a person, voluntarily acting in concert with another, who either personally commits forcible rape or aids and abets the offense commits rape in concert. “‘Any sexual penetration, however slight, is sufficient to complete the crime.’” (In re John Z. (2003) 29 Cal.4th 756, 761; see also People v. Karsai (1982) 131 Cal.App.3d 224, 232 [“[p]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina”].)
Initially, we believe there was sufficient evidence of penetration. Michelle testified at trial that at least the head of Sharp’s penis penetrated her vagina. She told Officer Long right after the occurrence that the perpetrator had been inside her for three to five seconds, but there was no further detail. Michelle’s and Sharp’s DNA were found on the discarded condom, showing that at least some sort of sexual contact occurred. Whether the jury believed Michelle’s statement to Officer Long or her trial testimony, the evidence was sufficient to support that penetration occurred.
As for the remaining claims by Goins – that Michelle’s testimony on consent was unreliable, she contradicted herself, she gave an implausible description of the event, she suffered from a mental illness, and she was in and out of consciousness during the event -- he is essentially asking this court to reassess Michelle’s credibility on appellate review and make a finding that her testimony was inherently improbable.
True, Michelle, as admitted by the prosecution in closing argument, was a terrible witness. She did indeed change portions of her story at different times to different persons. However, her statements that she was in fact vaginally penetrated by Sharp were not inherently unreliable or physically impossible. (See People v. Young, supra, 34 Cal.4th at p. 1181 [“unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction”].) To be inherently improbable, “‘the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.’” (People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Headlee (1941) 18 Cal.2d 266, 267.)
Based on the circumstances, her testimony that this was not a consensual act is believable. If in fact Michelle had agreed to engage in sexual acts with Sharp, Goins, and the other man, there would have been little reason for her to contact the police after this so-called consensual sex occurred. Officer Long indicated that when he first approached Michelle, she was upset and crying. Michelle, a known prostitute, would have no incentive to contact the police to report a rape.
Also, what Goins does not seem to recognize, and was not present in the cases cited by him, is that at his trial his confession was presented to the jury, which essentially corroborated Michelle’s testimony. Goins indicated in this interview that Sharp bent Michelle over the car, “fucked her in the ass,” and then “did it in the vagina.” Goins held pepper spray up to her face and told her not to move. Despite Goins’s claim to the contrary, this alone shows that the sexual conduct was nonconsensual. Although Goins claimed that they had originally agreed that Michelle would perform oral sex on the three men, intercourse with Sharp was not part of the agreement. Goins’s own testimony supports that Sharp forced intercourse on Michelle.
The jury was well aware of Michelle’s sordid past, her mental illness, and her inconsistent testimony and still convicted defendants. Despite the inconsistencies in her pretrial statements and trial testimony, we do not believe that her testimony that she was vaginally penetrated by Sharp against her will was inherently unreliable. Hence, we find the evidence was sufficient to support the convictions of rape in concert.
VII
FLIGHT INSTRUCTION
Sharp contends that his convictions in counts 3 through 11 must be reversed because the trial court’s flight instruction was not supported by the evidence.
Here, the jury was instructed with CALCRIM No. 372, as follows: “If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” Initially, during the discussion of the jury instructions, Sharp made no objection to the instruction being given. Sharp’s failure to object to this instruction at trial constitutes waiver of the issue on appeal. (See People v. Bolin (1998) 18 Cal.4th 297, 326.)
In any event, the flight instruction was properly given. Section 1127c provides that the trial court should give a flight instruction “[i]n any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt . . . .” “Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.) As such, flight requires a desire to avoid arrest. (People v. Smithey (1999) 20 Cal.4th 936, 982.)
Here, the evidence that Sharp was attempting to avoid arrest and flee was strong. A search of Sharp’s residence had occurred on April 27, 2004. Police contacted Sharp on April 28 advising him that they wanted to talk to him. Sharp had set up a meeting with police on April 29. However, on the day he was to meet with police, he got into a car accident. When the police arrived to investigate the accident, they noticed that Sharp’s car contained piles of clothes and shoes. Knowing that he was wanted by the police, the evidence supported that Sharp had packed up his car and was leaving.
Additionally, as noted by the People, Sharp’s claim that CALCRIM No. 372 violated his due process rights by lessening the prosecution’s burden has been recently rejected in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1159. Furthermore, the California Supreme Court rejected a similar claim in People v. Mendoza (2000) 24 Cal.4th 130, 179-181, in regard to the similar flight instruction in CALJIC No. 2.52. We reject that the flight instruction lessened the prosecution’s burden in violation of Sharp’s due process rights.
Sharp attempts to distinguish Mendoza by indicating the flight instruction in that case was supported by the evidence. We also think that the flight instruction here was supported by the evidence.
Furthermore, even if the trial court erred by giving the flight instruction, any conceivable error was harmless. The applicable standard is whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Silva (1988) 45 Cal.3d 604, 628.) “The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183, fn. omitted.) Accordingly, if in fact there was insufficient evidence of flight, we can assume that the jury made no use of the instruction. (See People v. Barnett (1998) 17 Cal.4th 1044, 1152-1153.)
We reject that the trial court erred by instructing the jury with CALCRIM No. 372.
VIII
DISPOSITION
The judgments are affirmed.
We concur: HOLLENHORST, Acting P.J., MILLER, J.