Opinion
A118856
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. ROZELL SIMMONS, Defendant and Appellant.
Not to be Published
Rozell Simmons appeals his convictions for carjacking, robbery, and possession of a firearm by a felon. Simmons contends that there was no substantial evidence that he used a real firearm in the commission of his crimes, that the prosecutor improperly commented during argument on Simmonss failure to testify at trial, that the sentence on his robbery conviction must be stayed pursuant to Penal Code section 654, and that the trial court improperly imposed the 10-year enhancement for Simmonss use of a firearm during the robbery. The People concede that the enhancement on the robbery conviction should be three years and four months instead of ten years. We therefore modify the enhancement imposed for Simmonss use of a firearm in the robbery, and otherwise affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Ismail Karajah made a night-time delivery of cigars and tobacco products to the East Oakland Food Center. He had about $25,000 in cash inside his van and about $6,000 in cash in his pockets. When he parked in front of the store, Karajah noticed two people on bicycles outside. He told the store owner "they looked like trouble." The owner told him not to worry and asked to buy some cigars. Karajah asked the owner to accompany him to his van for protection and to help carry the merchandise back into the store.
Before Karajah left the store, either the owner or landlord mentioned that someone was standing outside with a machine gun. Karajah started to call the police on his cell phone, but stopped when he realized he could not identify his exact street location. So, Karajah asked the store owner to call the police. Instead of calling the police, the owner said that he and his brother would walk Karajah out to his van. As they approached the van, Karajah saw a masked man carrying "a big machine gun" running directly toward him. As Karajah backed away from the man with his hands up, he tripped and fell to the ground. The man pointed the gun in Karajahs face and demanded, "Give me the money."
The man was wearing dark clothing and a mask with openings for the eyes and mouth.
When Karajah handed over about $2,000 from one of his pockets, the man said, "Thats not all your money. I know thats not all your money." Karajah pulled out about $4,000 from another pocket. As he did, the keys to his van fell out to the ground. The man with the gun took the keys and went to the passenger side of the van. A second man ran up to the drivers side. Both men entered the van and drove away.
Officer Alexander Perez is a robbery investigator. As part of his investigation of the robbery and carjacking, he viewed video surveillance discs made at the scene of the crime. Officer Perez watched a video of the carjacking and observed the carjacker. He also saw some video from inside the store, and saw a man who was dressed like the carjacker and matched the carjackers description. It looked like the man walked out of the store and came back in wearing a ski mask. What Officer Perez observed on the surveillance video matched what Karajah described in his statement to police.
The discs were also played for the jury.
Three days after the robbery, Oakland Police Officer Marcus Midyett saw Simmons driving a Buick carrying several passengers near the East Oakland Food Center. Officer Midyett stopped the car for a traffic violation and found a hooded sweatshirt, a ski mask, a pair of Nike black gloves, and many loose cigars in the back seat. Midyett took Simmons in to the police station.
Once there, Simmons participated in a physical lineup. After the six individuals in the lineup put on masks, walked around, and spoke to Karajah, he identified Simmons as the man who robbed him. Simmons had the same eyes, body movement, and voice as the robber. Karajah testified that at the lineup he said that he was "almost 99 percent" sure that Simmons was the man who robbed him. Officer Perez testified that Karajah said he was "positive" that it was Simmons.
Simmons was charged with carjacking, robbery, and possession of a firearm by a felon. The information also alleged personal use of a firearm in the carjacking and robbery, a prior felony conviction, and a prior prison term.
Simmons was also charged in a second information with murder and possession of a firearm by a felon for an earlier incident, with additional enhancement allegations. The cases were consolidated for trial. The jury was unable to return a verdict on the second information and a mistrial was declared. The homicide case was later dismissed. Simmons raises no issues relating to those charges.
The Victims Testimony
Karajah also identified Simmons in court as the man who assaulted him with the gun, and said that he saw Simmons outside the store on a bicycle before the robbery took place. Karajah identified Simmons by his eyes, which were visible through the mask. Karajah looked directly into the robbers eyes when the robber pointed the gun at him. The robber also had the same "very thick" bottom lip as Simmons.
Karajah also testified that the cigars found in the car Simmons was driving when he was stopped by police were the same brands that were in his van when it was carjacked. A hooded mask found in the car driven by Simmons also looked to Karajah like the mask the carjacker was wearing.
Other Witnesses
Antonio Addison used to "hang out" with his friends at the East Oakland Food Center. He testified that he knew Simmons. At the time of trial, Addison was nervous, frightened, and wanted to go home because he had been labeled a "snitch." Addison identified Simmons in still photos extracted from the surveillance video. During trial Addison could not recall seeing anyone carrying a gun the night of the robbery, but admitted he told police that Simmons was carrying a big gun. He also testified that Simmons was not the carjacker and claimed he did not see who committed the offense.
At trial, Addison testified he only told police Simmons was carrying a big gun because he was anxious to be released from police custody and allowed to go home. Portions of an audio tape of Addisons statement to police were played for the jury.
Virgil Jackson had known Simmons for many years and shared a jail cell with Simmons a few months after the robbery. Simmons told Jackson he had been involved in several carjackings and that he possessed an assault rifle. Jackson admitted to using an alias, giving police a false last name, numerous prior convictions, and that he had traded information to police in return for early release from custody.
Virgil Jacksons brother, Vittorio Jackson, also testified. He said that Virgil did not know what happened involving Simmons, and made up a story to gain early release after looking at Simmonss paperwork in jail. Vittorio Jackson admitted he was a good friend of Simmons and had numerous prior felony convictions. Simmonss mother testified Simmons had been missing a front tooth since before 2005, when it was knocked out while Simmons was in juvenile hall.
Virgil Jackson had testified he did not recall seeing Simmonss paperwork.
The jury convicted Simmons of carjacking, robbery, and possession of a firearm by a felon, and found the firearm enhancements true. The court found the prior conviction and prison term allegations true, and sentenced Simmons to a total term of 26 years in prison. Simmons timely appealed.
Simmons was sentenced to the mid-term of five years for the carjacking, with a 10-year consecutive enhancement for the firearm use. He received a consecutive one-year sentence for the robbery, which was one-third the mid-term, with a 10-year consecutive enhancement for the firearm use. His mid-term sentence of eight months for possession of a firearm by a felon was ordered to run concurrently, as was the one year for the prior conviction.
DISCUSSION
A. Evidence of Firearm Use
Simmons claims there was no substantial evidence to support either his conviction for possession of a firearm by a felon or the jurys findings that he personally used a firearm during the robbery and carjacking. He argues the prosecution failed to show he used a real firearm, rather than a replica or toy weapon. We disagree.
"[We] must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We " `view the evidence in a light most favorable to [the People] and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. " (People v. Johnson, supra, at pp. 576-577.)
Karajah testified that Simmons ran towards him holding "a big machine gun" that looked like Peoples Exhibit No. 1. After Karajah tripped and fell to the ground, Simmons pointed the gun in his face, from a distance of approximately one foot, and demanded his money. Karajah said the portion of the gun pointed towards his face was "[w]here the bullets would come out if a bullet was in there." The jury also viewed the surveillance video of the robbery and carjacking and saw the weapon used during those offenses.
Simmons concedes that the prosecution was not required to establish that the weapon was operable, and that "it is enough that the prosecution produce evidence of a gun designed to shoot and which gives the appearance of shooting capability." (People v. Hayden (1973) 30 Cal.App.3d 446, 452; accord, People v. Nelums (1982) 31 Cal.3d 355, 359-360 [enhancement applies even if firearm is inoperable].) The People introduced substantial evidence that supports the jurys findings, and there was no evidence to the contrary. (See People v. Hayden, supra, at pp. 452-453.) The prosecution was not required to produce the actual weapon at trial. (Id. at pp. 451-452 [jury may reasonably infer guilt from "testimonial descriptions of the weapon and its role in the commission of the crime"].) The record contains substantial evidence to support Simmonss convictions for possession of a firearm by a felon and the enhancements for his personal use of a firearm in connection with the carjacking and robbery convictions.
During in limine discussion of the Peoples proposed use of exemplar weapons, defense counsel stated: "I dont see the need to have the weapon thats used in the carjacking, which is the assault rifle, because that appears to be on video, so that the jurors will have viewed that. I dont think theres any issue about that."
B. Alleged Griffin Error
Simmons argues the prosecutor committed prejudicial misconduct during his rebuttal argument to the jury when he repeatedly referred to Simmonss decision not to testify, in violation of Griffin v. California (1965) 380 U.S. 609. "A prosecutor may not directly or indirectly comment on a defendants failure to testify in his or her own defense. [Citation.] But the prosecutor may comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call witnesses." (People v. Mincey (1992) 2 Cal.4th 408, 446.)
In his closing, Simmonss defense counsel attacked the prosecutions case by arguing the evidence was not sufficient to identify Simmons as the perpetrator of any of the charged crimes, and the witnesses who identified him were either mistaken or lying. During rebuttal, the prosecutor, in his attempt to refute the argument, advised the jury: "And theres one last principle Ill talk to you about, and let me be clear. This does not concern the defendant not testifying. He has a constitutional right not to testify and you guys cannot hold it against him for any reason. So hes exercised his constitutional right in this case and it cannot be held for any reason. [¶] However, within the law we have a principle called failure to call logical witnesses. And here, as I said, it doesnt apply to the defendant because of his constitutional rights." When the prosecutor attempted to read from case law, defense counsel objected: "One, theres no evidence." The court sustained the objection, and advised the prosecutor he could not talk about failure to call logical witnesses.
The prosecutor then continued: "Lets put it this way, ladies and gentlemen. In this case you have a one-way street leading to the defendants guilt. And Im not referring to him not testifying. Im referring to the state of the evidence. [¶]. . . However, theres been no witness produced to say that the defendant was anywhere else other than on April 10th, 2005, where [a prosecution witness] said he was. And Im not talking about the defendant testifying. Theres just no other witness before you at this point to say he was anywhere else other than out committing murder against Jermaine Grant."
At this point, defense counsel objected to the argument. The court overruled the objection and said "[t]his is all right for argument." The prosecutor continued: "Theres no other witness before you to say that the defendant wasnt where Virgil Jackson said he told him he was, out shooting Jermaine Grant." After the court overruled additional defense objections, the prosecutor stated: "[Defense counsel] is correct. Im required to call witnesses to prove my case beyond a reasonable doubt. He is not required to call anyone in his defense. He can rest on the state of the case. But once he does do that, just like he gets to get up here and talk about my case, I can talk about the case he put on because he did call witnesses in this case and he didnt rest upon my case. And once thats done, I get to comment upon what he put on and furthermore what he did not put on. [¶] And theres no witness before you to say that he was anywhere else on April 10th, 2005, at 9:30 at night besides murdering Jermaine Grant. You dont have that evidence. Thats why its a one-way street to conviction because all you have are people saying what other witnesses didnt say or what [a prosecution witness] was afraid to say."
After the court overruled an unspecified objection by defense counsel, the prosecutor briefly discussed Addisons testimony about the carjacking, and told the jury "you have a one-way street to conviction because theres no evidence before you the defendant was anywhere else on the days in question than committing murder and committing carjack and robbery." Defense counsel then made a "Griffin error" objection that was overruled. After asking the jury to hold Simmons accountable for his conduct, the prosecutor said, "what you should do is follow that one-way street to its logical conclusion because you havent been given any evidence, not again talking about the defendant testifying, that stops that train from heading to conviction. Follow the street to its one-way conclusion and hold the defendant accountable on all counts and then [sic] his reign of terror in the streets of Oakland." Defense counsels final objection for misconduct was overruled and his request for a mistrial was denied.
"To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) While defense counsel objected to "Griffin error" during the prosecutors argument, he did not request that the jury be admonished. Therefore, we could conclude that he failed to preserve that issue for appeal. (See People v. Brown, supra, at p. 553; People v. Sandoval (1992) 4 Cal.4th 155, 185 [courts admonition to jury "to disregard the prosecutors comments to the extent they reflected on the defendants not testifying. [¶] . . . was sufficient to obviate any Griffin concern"].)
In his reply brief, Simmons argues that if trial counsels objections were insufficient to preserve his claim of Griffin error for review, counsel was ineffective. We will therefore address the merits of his claim. (See People v. Welch (1999) 20 Cal.4th 701, 759-760.) When we do, we find no reversible error.
The People argue that there was no Griffin error because "[t]he remarks about not considering the appellants decision not to testify were aimed at preventing inferences adverse to the appellant rather than encouraging the jury to consider appellants decision to exercise his constitutional right." But in context, the prosecutors repeated assurances to the jury that he was not commenting on Simmonss failure to testify appear somewhat questionable, and could reasonably be construed to suggest that the jury infer the opposite. While we do not condone the prosecutors repeated references to Simmonss failure to testify during his argument of the evidence and the lack of alibi witnesses, particularly regarding the homicide (as to which a mistrial was declared when the jury was unable to reach a verdict), we have no difficulty concluding that any error was harmless beyond a reasonable doubt with regard to Simmonss convictions for robbery, carjacking, and possession of a firearm by a felon. (Chapman v. California (1967) 386 U.S. 18, 24.) The court properly instructed the jury that the attorneys statements were not evidence, and that the jury must not draw any inference from Simmonss failure to testify at trial. Moreover, the testimony of the victim, the other witnesses, and the surveillance video played for the jury, provided very strong evidence of Simmonss guilt. (See People v. Carter (2005) 36 Cal.4th 1114, 1267 [no prejudicial error shown in light of the nature of the prosecutors comments, the jury instructions recognizing the defendants constitutional right not to testify, and the strength of the evidence against the defendant].) In the circumstances, any reference to Simmonss failure to testify was harmless beyond a reasonable doubt.
The court instructed the jury: "A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way. [¶] In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charges against him. No lack of testimony on the defendants part will make up for a failure of proof by the People so as to support a finding against him on any essential element."
C. Application of Section 654 to Robbery and Carjacking Sentences
Simmons argues that the robbery and carjacking were a single act committed during an indivisible course of conduct, and therefore, the sentence on the robbery must be stayed under section 654. We disagree and conclude substantial evidence supports the trial courts determination that Simmons committed two independent violations. (See People v. Martin (2005) 133 Cal.App.4th 776, 781 ["Whether multiple convictions are part of an indivisible transaction is primarily a question of fact"]; People v. Brown (1991) 234 Cal.App.3d 918, 933 ["If there were multiple objectives not merely incidental to each other, the defendant may be punished for the independent violations even though they were parts of an otherwise indivisible course of conduct"].)
Section 654, subdivision (a), provides, in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
The trial court rejected defense counsels argument that the robbery and carjacking "really flows as a single transaction." It remarked: "I saw that as two separate occasions, although it happened at the same time, it was clearly a delineation between him pointing the shotgun or the assault weapon at the victim and demanding his money, whatever else he had. And then after that, he ran around and got into the car and drove the truck off with all of the merchandise. I think it was two separate incidents . . . ."
When Simmons pointed the firearm at the victim as he lay on the ground, Simmons demanded only his money. It was only after the car keys fell out of the victims pocket that Simmons grabbed them, jumped into the van with a second person, and departed. "It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible" (People v. Harrison (1989) 48 Cal.3d 321, 335), and the fact that the carjacking followed soon upon the robbery does not compel a conclusion that these two crimes were indivisible. (See People v. Bradley (1993) 15 Cal.App.4th 1144, 1157; cf. People v. Bauer (1969) 1 Cal.3d 368, 377 [evidence that defendant carried stolen property to car in garage while ransacking house showed intent to steal car was formed during or before robbery].) Simmons contends "[t]he robbery and carjacking were integral parts of one continuous, indivisible course of conduct intended to divest [the victim] of all his money and property." There is no evidence that a carjacking was the intended object of the robbery. Rather, the evidence warrants the conclusion that the carjacking was a crime of opportunity that resulted when Karajahs keys fell from his pocket. Substantial evidence supported the courts finding in this case that the robbery and carjacking were not part of a single act committed during an indivisible transaction, and separate punishment was therefore permissible.
D. Enhancement for Use of Firearm During Robbery
Simmons argues the court erred when it imposed the full 10-year firearm enhancement on his robbery sentence, which was ordered to run consecutively to his sentence for carjacking. The People concede that under section 1170.1, the court should have imposed one-third of the 10-year firearm enhancement. (See People v. Moody (2002) 96 Cal.App.4th 987, 991-994.) We agree and will modify the judgment accordingly.
Section 12022.53, subdivision (b) provides, in relevant part: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."
Section 1170.1, subdivision (a) provides, in relevant part: "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." Section 1170.11 provides, in relevant part: "As used in Section 1170.1, the term `specific enhancement . . . includes . . . the enhancements provided in Section[] . . . 12022.53 . . . ."
DISPOSITION
The judgment is modified to reflect an enhancement term on count two of three years and four months, pursuant to section 12022.53, subdivision (b). The trial court is directed to prepare an amended abstract of judgment showing this modification and to forward a copy to the California Department of Corrections. The judgment is otherwise affirmed.
We concur:
Pollak, Acting P.J.
Jenkins, J.