Opinion
F071032
05-02-2017
THE PEOPLE, Plaintiff and Respondent, v. BLAIR JOSEPH STEVENS, Defendant and Appellant.
Janice Wellborn, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F12904575)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Janice Wellborn, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
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Blair Joseph Stevens participated in the robbery and beating of a man in a park. He was found guilty of robbery, assault by means of force likely to cause great bodily injury, and battery causing serious bodily injury. On appeal, he argues that the convictions should be reversed because the accomplice testimony used against him was not sufficiently corroborated within the meaning of Penal Code section 1111. He also argues that the sentence imposed for the assault should have been stayed pursuant to section 654 instead of ordered to run concurrently.
Subsequent statutory references are to the Penal Code. --------
We will affirm.
FACTS AND PROCEDURAL HISTORY
The district attorney filed an information charging Stevens with three counts: (1) second degree robbery (§ 211); (2) assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)); and (3) battery resulting in serious bodily injury (§ 243, subd. (d)). Counts 1 and 2 included allegations that Stevens personally inflicted great bodily injury for purposes of sentence enhancement under section 12022.7, subdivision (a).
At trial, Alexandra Macias testified that a man named Blair was an acquaintance of hers. She had met him at Belcher Park across the street from her house and had given him her phone number. They had exchanged text messages a couple of times. She had often seen him skateboarding in the park.
Macias's bedroom window had an unobstructed view of the park across the street. She described the view of the park from that window as "perfect." On June 5, 2012, Macias heard screaming, looked out her bedroom window, and saw a group of three or four people attacking a man in the park. A woman was in the street trying to flag down cars. It was nighttime, but the park was lighted. After a time, the group dispersed, leaving the victim lying on the ground. Macias recognized the man she knew as Blair as one of the fleeing attackers. He was wearing a hooded jacket with the hood up and riding a skateboard as he left. Macias ran to her parents' bedroom, from which she could see the man named Blair proceeding away on his skateboard. She had often seen him wearing a hooded jacket and recognized his style of skateboard-riding from seeing him ride before. He stood straighter and had a more relaxed posture than other skateboarders she had observed. She did not see his face that night, however. Macias had been seeing Blair in the park at least every other day before this incident, but did not see him there any more afterwards.
Macias was unable to identify Stevens in the courtroom at trial. Her trial testimony included a statement, however, that she had seen the man named Blair, the one she saw participating in the assault, in the courtroom when she was present at the preliminary hearing. At that time, he had been wearing an orange jumpsuit. He was dressed differently at trial. The prosecutor showed Macias a photographic lineup and asked if it showed the man she knew as Blair. Macias circled the photograph in position number three but said she was not sure if it was him. That photograph was of Stevens. The district attorney's investigator testified that Stevens's hairstyle in the photo was different from his hairstyle during trial.
Dominic Floratos testified that he participated in the attack at the park on June 5, 2012, when he was 16 years old. He had been getting drunk in the park with some girls and a boy named Steven (not to be confused with defendant Stevens). He and Steven were walking the girls back to their car when he saw two other males enter the park. Floratos believed one of these was Stevens, but he was not sure because it was dark and he had been drinking. The male with Stevens was unfamiliar to Floratos. Floratos was acquainted with Stevens at the time, having met him on a number of occasions in the park. Stevens had told Floratos he was living in the park.
Floratos, Steven, Stevens, and the fourth person walked back into the park. They saw two people they did not know, a male and female, by the swing set. Floratos and his three companions came upon them suddenly and they appeared to become afraid. They began asking Floratos and his companions what the problem was and saying to get away. Finally, the male victim uttered what Floratos understood to be a challenge: "[T]he victim turned around and was like ... 'Well, what,' or something, so that's how I knew that it was going to be a fight." The man who appeared to be Stevens then threw a punch, initiating the attack. Floratos joined in. The attack "turned into a group beating." Then Floratos saw the male victim unconscious on the ground and the female in the street talking on her phone and trying to flag down cars. The attackers fled in different directions. The one who appeared to be Stevens was the first to run away.
Floratos was 99 percent certain the defendant in the courtroom was the man he knew as Stevens, but there was only a "50 to 75 percent chance, 50 percent I'd say" that Stevens was the person who participated in the attack. While being cross-examined, he said it was 50 percent. He was uncertain partly because of his drunkenness. While he was at the park, he had 12 beers, four of which had shots of whisky in them, plus "a couple" more shots of whiskey. This was in addition to some drinking he had done earlier in the day. He conceded, however, that when the prosecutor and his investigator had questioned him earlier, he had expressed no uncertainty that Stevens was involved in the attack.
Floratos's interview with the prosecutor and his investigator, which took place while Floratos was in custody, was recorded, and the recording was played for the jury. In the statement, Floratos named Stevens as one of the attackers without any apparent hesitation. He also said that although he had been drinking earlier in the day, he did not drink very much and he did not have anything at all to drink while in the park. He said the attackers took the victim's cell phone and wallet, but he did not remember who individually did this. Floratos identified Stevens in a photographic lineup presented to him during the interview.
Floratos's recorded statement also included an account of the encounter according to which it began as a misunderstanding and developed into a confrontation because he perceived Pope's demeanor as disrespectful:
"Like umm ... we were just hanging out at the park at night, me and a couple of my friends and then like uhh ... we noticed somebody on the uh ... swings and we thought it was someone that we knew and uhh so we went over there and I like ran up to him. Because I was, I was, just messing around, and I was like oh shit that's not somebody that I know. It's just ... It's a stranger. And then like guess he was with a girl, I was like oh shit like better get out of here like. So I was like oh my my bad, like. For I ... I ran up like real close to 'em and was like oh shit my bad and then like I started walking out away from the swings and then uh the kid had turned and he was like he was like tripping kind cause the way I like it's obvious I ran up to him out of the darkness so he didn't know who I was. I was mistaken. So he says something and then like the way I was at the time I was like what are you trying to do cause like I wasn't gonna let him get at me foul cause the kinda person I was, like, how I was acting when I was out and I just kinda blew things out of proportion cause he got at me kinda disrespectful so then I just ... so everything just started going downhill."
Andrew Pope was the victim who was beaten and robbed. He testified that on June 5, 2012, he was in Belcher Park with his friend Amanda Ardemagni. He had met her there to discuss some family difficulties she was having. He was talking with Ardemagni, who was upset and crying, when he noticed two people moving around and talking loudly. He became uncomfortable and suggested to Ardemagni that they go and sit in his car. As they were leaving, four or five people approached and yelled something. Pope said, "Hey, are you guys okay?" One, whom Pope later learned was Floratos, answered, "We're fuckin' faded nigga." Someone hit him and he told Ardemagni to run. The attackers knocked him down and started kicking and stomping his head. He felt someone going through his pockets and then lost consciousness. He was transported to a hospital and treated in the emergency room. When he got home, he realized his wallet and phone had been taken. Later, he identified Floratos in a photographic lineup as one of the attackers, but he could not identify Stevens. He recognized Stevens's face but did not know if he was present during the attack.
Ardemagni testified that she was with Pope in the park, crying, when Pope suggested moving to his car. She noticed two people nearby at that point. The two people withdrew as she and Pope were walking away, but then she heard footsteps, turned, and saw four males walking toward them. Ardemagni was not apprehensive about them, but Pope placed himself between them and her and asked them, "Hey, are you guys good?" One of them answered, "Yeah, nigga, we good. What the fuck are you doing[?]" Pope said, "We don't want any trouble. We're just—you know, she's had a really rough night. I just want to get her home, so we're going to, you know, mind our own business and you guys, you know, do whatever you're going to do." The four males continued to follow Pope and Ardemagni, catcalling her. Pope again asked, "Are you guys good?" One answered, "We faded, nigga. We faded." Pope was again explaining that he and Ardemagni were leaving and did not want any trouble when one of the assailants said, "You punk ass motherfucker" and shoved him. Then the group began beating Pope and he told Ardemagni to run. She saw the attackers punching and kicking Pope and heard one of them tell the others to get his phone and wallet. She ran to the street and called 911. During her testimony, Ardemagni was not asked if she could identify any of the attackers.
Detective Christopher Lee was called as a defense witness. He testified that he went to Macias's house a month after the assault. He went into Macias's parents' bedroom, where he looked out the window and found the view to be obstructed by trees. He did not, however, go to Macias's bedroom or ask her any questions about what she saw from there. Lee further said Macias told him she believed Stevens was one of the attackers, but she had not seen his face and could not identify any of the attackers. But she saw someone skating away from the victim afterwards on a skateboard and believed it was Stevens. Macias also told Lee she thought Stevens was one of the attackers because a police officer showed her a picture of him.
After all the evidence was presented, Stevens made a motion pursuant to section 1118.1 for a judgment of acquittal. He contended that Macias's testimony identifying Stevens was insufficient to provide the corroboration of Floratos's testimony required by section 1111, and no other witness claimed he or she was able to say Stevens was there. The court denied the motion.
The jury found Stevens guilty as charged and found the enhancement allegations true. The court sentenced him to six years as follows: on count 1, the middle term of three years plus three years for the bodily injury enhancement; on count 2, three years plus three years for the enhancement, to be served concurrently; and on count 3, three years stayed pursuant to section 654.
DISCUSSION
I. Section 1111
Stevens argues that the convictions must be reversed because, under section 1111, there was insufficient evidence to corroborate Floratos's testimony identifying him as a perpetrator. Section 1111 provides:
"A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
"An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
The substance of section 1111 has long been the law because of the dangers generally associated with accomplice testimony. "[I]t was, of course, recognized that evidence of an accomplice, coming from a tainted source, the witness being ... a man usually testifying in the hope of favor or the expectation of immunity, was not entitled to the same consideration as the evidence of a clean man, free from infamy." (People v. Coffey (1911) 161 Cal. 433, 438.)
The corroborating evidence required by section 1111 may be slight and entirely circumstantial and may be entitled to little weight standing alone. It need not corroborate every fact to which the accomplice testified or establish all the elements of the offense. It must, however, tend to implicate the defendant in some degree and relate to some fact which is an element of the crime. It also must be independent of—and require no interpretation or direction from—the statements of the accomplice. (People v. Hayes (1999) 21 Cal.4th 1211, 1271; People v. Szeto (1981) 29 Cal.3d 20, 27.) We cannot disturb the jury's finding on the issue unless the corroborating evidence should not have been admitted or did not reasonably tend to connect the defendant with the commission of the crime. (People v. Szeto, supra, at p. 27.)
Stevens's argument is limited to the section 1111 corroboration issue. He does not contend that all the evidence presented was insufficient to support the convictions.
Macias's testimony was sufficient corroboration under section 1111. She said she saw the attack and saw the attackers dispersing afterward, and Stevens was one of them. Although Macias did not see Stevens's face at the time of the attack, she had seen him multiple times in the park and knew how he dressed and the distinctive way he looked when riding his skateboard. Regardless of whether her testimony would have been enough standing on its own to convict Stevens, it did reasonably tend to connect him with the commission of the crime, and that is all section 1111 requires.
Stevens relies on Lee's testimony that the park could not be seen from the window in Macias's house and that Macias told him she could not identify the attackers. Yet this testimony, arguably at least, was not inconsistent with Macias's trial testimony. Macias saw the attack first from her own bedroom window, not her parents' window, and the parents' window was the only window through which Lee looked. Further, Macias told Lee that Stevens was the person she saw fleeing by skateboard after participating in the attack, even though she had not seen his face. This was essentially the same as what she said at trial. More importantly, even if Lee's testimony about Macias's prior statement did conflict with her trial testimony, this merely imposed on the jury a duty to weigh the conflicting evidence. When deciding whether evidence is sufficient for purposes of section 1111 or otherwise, we do not reweigh the evidence. Lee's testimony does not alter our conclusion. II. Section 654
Stevens contends that the sentence for the assault should have been stayed under section 654—not imposed as an unstayed concurrent sentence—because its objective was the same as the objective of the battery and the robbery. He says the objective of the entire incident was to take Pope's property, with force used only as a means to that end.
Section 654 provides, in part, as follows:
"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."
This statute bars multiple punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on other grounds by People v. Correa (2012) 54 Cal.4th 331, 340-344.) We review under the substantial evidence standard the court's factual finding, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) As always, we review the trial court's conclusions of law de novo. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)
When the crimes are robbery and assault, "[t]he rule is that ... a defendant ... can be punished for both crimes if the assault was not incident to the robbery and was motivated by a separate criminal objective [citation], but if the assault was committed in order to accomplish the robbery, then the defendant can be punished for only one of the crimes." (People v. Martinez (1984) 150 Cal.App.3d 579, 606, overruled on other grounds by People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
We agree with the People's contention that there was sufficient evidence to support a finding of multiple objectives. Floratos testified that the encounter began when, after a bout of drinking, the four aggressors frightened Pope and Ardemagni by approaching them suddenly. Ardemagni testified that as they were walking away and as Pope was saying they only wanted to be left alone, the assailants followed and catcalled. Ardemagni and Pope said Floratos responded to Pope's remarks by saying he and his companions were "faded," i.e., intoxicated. According to Floratos's recorded statement, he had no attack in mind at first, but the interaction with Pope caused him to believe his group was being disrespected and they were obliged to respond with violence. Stevens was the first to do so, and then Floratos and the others joined in. After Pope was on the ground being kicked, Ardemagni heard one of the attackers tell the others to search for Pope's phone and wallet. From this evidence, the sentencing court could reasonably find that the attack was motivated at first by a drunken desire to engage in violent aggression in order to avenge perceived slights; a second objective of robbing Pope developed when the attack was already in progress.
It is true that when section 654 allows multiple punishments for assault and robbery arising from a single course of conduct, this is typically because force unnecessary for the robbery was applied after all the acts necessary for the robbery were completed. (See, e.g., People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300; People v. Nguyen (1988) 204 Cal.App.3d 181, 189-193; People v. Johnson (1969) 270 Cal.App.2d 204, 208-209.) This case is unusual in that the decision not to apply section 654 is based on evidence sufficient to support a conclusion that violence commenced for independent reasons before the robbery was contemplated. But there is no rule that a section 654 stay can be avoided only if the gratuitous violence came after.
Stevens cites People v. Flowers (1982) 132 Cal.App.3d 584, but that case is distinguishable. There, the defendant's accomplice pushed the defendant into a motel room and the defendant hit the victim on the head, threw him on the bed, and strangled him, while the accomplice emptied his pockets. The victim resisted and the defendant punched him in the head several times. Then the assailants immediately left the room, got in a car, and drove away. (Id. at pp. 587-588.) The Court of Appeal held that a section 654 stay on the sentence for the assault was mandatory because the evidence showed the robbery and assault were indivisible. (Flowers, supra, at p. 590.) Rejecting the claim that the evidence supported a finding of separate objectives, the court stated: "On the contrary, it seems clear that the whole purpose of the confrontation in the motel room was to commit a robbery." (Id. at p. 589.) As we have explained, the evidence in this case supported the trial court's implicit finding that the incident started out as an indulgence in gratuitous violence and then developed into a robbery, so that there were separate objectives to support separate punishments for the assault and the robbery. Flowers thus is not similar.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
FRANSON, J.