Opinion
E065836
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANDRE WINSTON JR., Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1503759) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed in part, reversed in part, and remanded with directions. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant mugged a victim at knifepoint while a female accomplice acted as lookout. He contends that the trial court erred by taking judicial notice that the accomplice had pleaded guilty to robbery and by so instructing the jury. The People concede the error, but they contend that it was harmless. We will hold that, on this record, the error was prejudicial with respect to whether the crime was a completed robbery rather than an attempted robbery. Hence, we will give the People an opportunity to retry defendant for robbery, but if they fail to do so, we will reduce the conviction.
I
FACTUAL BACKGROUND
Alma De La Paz lived in the Casablanca area of Riverside. On July 24, 2015, around 7:30 p.m., as she was exiting her house, she saw one man behind another man, with his left arm around the other man's neck. They were three houses down the street from her.
De La Paz knew the man in front. His first name was Andres; she did not know his last name. The man in back was African-American, between five feet eight inches and six feet tall, thin, with short hair, and 18 or 19 years old. He was wearing a black short-sleeved shirt, jeans, and a black backpack. (De La Paz originally told police, however, that he was wearing a black tank top and black pants.) De La Paz saw only his back and side, not his face.
A woman was standing behind the two men. She was holding a purse and looking up and down the street. She was Hispanic and short, between five feet two inches and five feet five inches tall, weighing about 150 pounds, with short hair. She was wearing a white shirt and shorts. De La Paz had seen the man and the woman before, three or four times, walking past her house, always together.
De La Paz knew immediately that it was an attack, not just play. She yelled, "Leave him alone or I'm going to call the police." The woman yelled back, "Shut up[,] you bitch, or you want a piece of this shit[?]" Then the man and the woman ran away.
When asked what the attacker was doing with his right arm, De La Paz answered, "[W]hen I yell[ed] at him . . . , he just started putting his hand into his pockets." Later, she clarified this by testifying, "[T]he man that was holding Andres used his right arm, and [I] thought that he was going through Andres's pockets."
De La Paz called 911. Meanwhile, Andres came over to her. He was shaking and crying. He was also drunk. He said the man had a knife and took $80 or $90 from him. He added that he had just earned the money and he had been going to use it to pay rent, because he had been sleeping "on the streets."
When the police arrived, De La Paz told them that the man and the woman lived in a certain apartment complex on Lincoln Avenue. She also said they had gone in the direction of Lincoln Avenue. Andres had trouble communicating with them, because he was drunk and he spoke only Spanish; De La Paz's native tongue was Spanish and she also spoke English, so she acted as translator. Andres told the police, through De La Paz, that the man held a knife to his neck and took $80 or $90 from him.
The police looked for possible suspects in the general direction that De La Paz had indicated. At a 76 gas station, about a mile away, they saw defendant with one Johana Navarijo; they realized that they "fit the description," so they detained them. They were both cooperative.
Defendant was wearing a black t-shirt and jeans. He had a black bag, not a backpack, but he was carrying it on his back. In his back pocket, he had a knife. According to his driver's license, he lived at the apartment complex that De La Paz had identified. Navarijo was wearing a black "onesie." Neither of them had any money.
The police brought De La Paz to the 76 gas station and conducted an in-field showup. The showup took place roughly an hour after the crime. De La Paz identified defendant. She said she was "100 percent" certain.
According to De La Paz, the police arrived 5 or 10 minutes after the crime, they took Andres's statement 20 minutes after the crime, and the showup occurred about 20 minutes after they left.
De La Paz also identified Navarijo, although Navarijo was wearing different clothes. Again, she said she was "100 percent positive." She could see the backpack and the purse on top of a patrol car. De La Paz admitted that she assumed that the police would not arrest the wrong people.
De La Paz identified defendant in court as the attacker. She likewise identified a photo of Navarijo in court as the woman at the scene.
Dr. Mitchell Eisen, testified for the defense as an expert on memory and suggestibility. According to Dr. Eisen, being subject to traumatic stress during an event impairs one's memory of the event. A showup is more suggestive and less accurate than a lineup; admonitions are helpful, but their effectiveness can "vary greatly" and they do not eliminate false identifications. Cross-racial identification is more difficult than same-race identification. Previous familiarity with a suspect can help a witness make an identification, but it can also cause a false identification. Finally, witnesses will stick with an identification over time even when it is wrong.
II
PROCEDURAL BACKGROUND
A jury found defendant guilty on two counts — (1) robbery (Pen. Code, § 211), with an enhancement for the personal use of a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)), and (2) carrying a concealed dirk or dagger (Pen. Code, § 21310). As a result, he was sentenced to a total of four years in prison, along with the usual fines, fees, and miscellaneous sentencing orders.
III
JUDICIAL NOTICE THAT DEFENDANT'S ACCOMPLICE
HAD PLEADED GUILTY TO ROBBERY
Defendant contends that the trial court erred by taking judicial notice that Navarijo had pleaded guilty to robbery.
A. Additional Factual and Procedural Background.
Originally, the information charged both defendant and Navarijo, jointly, with robbery.
During trial, the prosecutor asked the trial court to take judicial notice that Navarijo had pleaded guilty. Defense counsel objected that this was irrelevant. The prosecutor argued that it was relevant to De La Paz's credibility — "[S]he accuses a person, that person admits they did it." Defense counsel then objected under Evidence Code section 352 (section 352). The trial court ruled that Navarijo's guilty plea was relevant to De La Paz's credibility and not more prejudicial than probative.
The trial court therefore told the jury: "The Court has taken judicial notice of a conviction of Johana Navarijo for violation of Penal Code section 211. Sentencing on her matter occurred on the date of December 15th, 2015."
The jury was made aware — by the charges, by the instructions and by the verdict forms — that Penal Code section 211 defines robbery.
The trial court never told the jury what "judicial notice" means. However, it did instruct that: "Evidence is the sworn testimony of the witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." (CALCRIM No. 222.)
At the request of defense counsel, it gave the following limiting instruction: "During the trial, the Court took judicial notice of the fact that the co-defendant, Johana Navarijo, pled guilty to the charge of robbery. You must separately consider the evidence as it applies to Mr. Winston and must not consider the co-defendant's plea alone as sufficient to prove Mr. Winston is guilty.
"You may only consider the evidence in two ways. One, to evaluate the accuracy of any eyewitness testimony. Two, as circumstantial evidence to prove or corroborate other evidence presented to you."
It instructed the jury not only on robbery, but also on attempted robbery.
In closing argument, the prosecutor stated: "[T]he Judge, . . . just after I closed evidence, read you one item of judicial notice, and that was something you can consider. Specifically, that was the conviction of the co-defendant in this case. The woman, of course, who was described and talked about, and that is something you can consider.
"Now, there's limited ways that you can consider it, but I'll talk about that, too."
He returned to the subject when discussing CALCRIM No. 315, which lists factors to be considered in evaluating eyewitness identification testimony:
"Was the witness able to identify other participants in the crime? Now, the way in which you can use this is given to you in the limited [sic] instruction. I want you to be careful to use it for those two purposes. It states that you may only consider this evidence in two ways. One, to evaluate the accuracy of the eyewitness testimony. And this goes to the idea that, look, if she was able to perceive and correctly identify one person, she must have had a good viewpoint, good vantage point. She has her wits about her. She's good at this sort of thing. You can rely on that.
"The second is, as circumstantial evidence to prove or corroborate other evidence presented to you. So how does that work? Well, they are seen together before on a number of occasions. They were seen at the scene of the crime. They [we]re seen together just a short time after, and he's got the weapon used. Use that together with the fact that she's caught and arrested with him, she's convicted. She pleads guilty. She admits it.
"Now, the fact that she admitted, in and of itself, no, you cannot consider that. Again, this man, he gets his own independent trial. But the reality is, you can consider it and [sic] circumstantial evidence to show and corroborate the other things that we do know."
During its deliberations, the jury asked the following questions:
1. "Under Count 1 [robbery], what is the difference between the higher and lesser degrees? Is it correct that both require intent and some degree of action, but the higher degree requires that property was actually physically taken?"
2. "With regard to Count 1, does the allegation of use of a deadly weapon (12022b1) apply to both robbery and attempted robbery?"
3. "Regarding CalCrim No. 1600, Robbery, do 1 through 6 all have to be proven?"
4. "We would like to hear the witness's testimony regarding what happened when she yelled at the attacker. Specifically, the part about reaching into a pocket."
B. Discussion.
As the People concede, under People v. Leonard (1983) 34 Cal.3d 183, the trial court erred by overruling defendant's section 352 objection. In Leonard, two men robbed two victims. (Id. at p. 186.) The police stopped the defendant when he was with one Steven Johnson and detained them both. (Id. at p. 186; see also id. at p. 188.) The female victim identified the defendant and Johnson as the robbers; the male victim could not identify them, but he did recognize their clothing. (Id. at p. 186.) Over the defendant's section 352 objection (id. at p. 188), the trial court took judicial notice that Johnson had pleaded guilty to the robbery. (Id. at pp. 186-187.) The Supreme Court reversed. (Id. at pp. 188-190.) It held that "[t]he prejudicial effect of Johnson's guilty plea . . . is clearly substantial and far outweighs any probative value the evidence might have," because it "invites an inference of guilt by association . . . ." (Id. at p. 188.) We can find no meaningful distinction between Leonard and this case.
Defendant argues that the trial court also violated the federal confrontation clause. The People respond that defendant's trial counsel forfeited any confrontation clause claim by failing to object on this ground below. (See Evid. Code, § 353, subd. (a); People v. Partida (2005) 37 Cal.4th 428, 435.) Defendant, however, also argues that his trial counsel's failure to object on this ground constituted ineffective assistance of counsel.
We need not decide either the confrontation clause issue or the ineffective assistance of counsel issue. We have already held that the trial court erred under section 352. As this is an error of state law, the applicable harmless error standard is whether it is reasonably probable that defendant would have enjoyed a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) "'"[A] 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility."' [Citation.]" (People v. Sandoval (2015) 62 Cal.4th 394, 422.) It has been held that, for purposes of this test, a single juror holding out for acquittal, and thus causing a hung jury and a mistrial, would be a more favorable result. (People v. Soojian (2010) 190 Cal.App.4th 491, 520-521.)
If the trial court also erred under the federal confrontation clause, the only difference that would make is that it would trigger the more stringent federal harmless error standard. However, we agree with the People that defense counsel forfeited any confrontation clause violation (People v. Redd (2010) 48 Cal.4th 691, 730); she thereby also forfeited the application of the federal standard. This forfeiture would not rise to the level of ineffective assistance of counsel unless, among other things, defendant suffered prejudice as a result of the forfeiture. (People v. Mickel (2016) 2 Cal.5th 181, 198.) And "[t]o demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. [Citations.]" (Ibid.) However, this test is "substantially the same" as the state standard of harmless error. (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407; see also Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.) Accordingly, the only issue we need to consider is whether the trial court's error in taking judicial notice was prejudicial under the state standard. If so, we reverse; if not, we affirm.
Preliminarily, we note that defendant does not contend that, if the trial court had refused to take judicial notice of Navarijo's conviction, the jury might have acquitted him. We deem him to have forfeited any such contention. Rather, he contends only that the jury might have convicted him of the lesser offense of attempted robbery, because it might have had a reasonable doubt as to whether he actually took any money.
The only evidence that any money was actually taken consisted of Andres's statements to De La Paz and to the police. However, since De La Paz acted as translator for the police, we have only her account of these statements. And Andres was very drunk. Understandably, the police did not search him to see whether the money was still on his person. Moreover, De La Paz did not actually see defendant take any money. When defendant and Navarijo were arrested, roughly an hour after the crime, they had no money on them. They could have stashed it somewhere, as incriminating evidence, but one would think that, in that event, defendant would have stashed the knife, too.
The jury sent out four questions. All of them dealt with the difference between robbery and attempted robbery; two (and perhaps three) of them dealt specifically with whether any money was actually taken. Thus, it appears that the jury was focused on this issue and was having some difficulty agreeing on it.
The People assert that we cannot consider the jury's questions, citing Evidence Code section 1150, subdivision (a). That subdivision applies only "[u]pon an inquiry as to the validity of a verdict . . . ." It is well-established that a reviewing court can consider a jury's questions during deliberations in deciding whether an error was prejudicial. (E.g., People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.)
Logically, the jury would have seen Navarijo's guilty plea, specifically to robbery, as an admission that at least some money was taken. A declaration against one's own penal interest, unless somehow self-serving, is "presumptively reliable." (In re Jessie L. (1982) 131 Cal.App.3d 202, 211.) And a confession, which is the ultimate declaration against penal interest, is "persuasive evidence of guilt" — an "evidentiary bombshell." (People v. Cahill (1993) 5 Cal.4th 478, 503, internal quotation marks omitted.) Thus, there is a reasonable probability that, if the jurors had not learned of Navarijo's guilty plea, at least one of them would have voted to convict defendant of only attempted robbery.
IV
DISPOSITION
The judgment is reversed solely with respect to the conviction on count 1 and with respect to the sentence; in all other respects, it is affirmed. On remand, if the People do not bring defendant to a new trial on count 1 in a timely manner (see Pen. Code, § 1382, subd. (a)(2)), then our remittitur shall be deemed to modify the verdict by reducing the conviction on count 1 to attempted robbery and the trial court shall promptly resentence defendant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.