P. v. Barksdale

Filed 11/26/07 P. v. Barksdale CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Timothy Barksdale of attempted robbery (Pen. Code, 664, 211)^[1]and the trial court found defendant had a prior serious strike conviction ( 667, subds. (a), (b)-(i), 1170.12) and that he had served two prior prison terms ( 667.5, subd. (b)).

Sentenced to 11 years in state prison, defendant contends the trial court (1) abused its discretion in admitting evidence of a letter he had written that inferentially revealed his parole status; (2) prejudicially erred in denying his motion for a mistrial based on misconduct by the prosecutor; and (3) denied him due process by failing to instruct the jury on the asportation element of robbery. We reject the contentions and affirm.

Facts

Marcus Winslow testified that on June 15, 2005, he was a cashier at a convenience store in a service station and was preparing to place two sleeves containing money in the stores safe when defendant, whom he had never seen before, entered. Although defendant had entered alone, he appeared to be with another male and a female.

Defendant came to the counter and asked for a cup of ice, and Winslow told him it would cost 25 cents. Defendant replied that he did not have the money and that Winslow should give him the money Winslow was holding. After being refused by Winslow, defendant said, [D]o you want to lose your life over . . . that chump change? During this time, defendant held his right hand behind his back as if he were holding a weapon and he appeared serious.

When Winslow didnt move, defendant moved forward and unsuccessfully tried to grab the sleeves of money from him. Winslow turned away and the sleeves fell to the floor. Winslow picked them up and defendant came behind the counter and attempted to grab the sleeves several more times; his right hand was still behind his back.

Grant Shackelford, another employee, had been in the managers office and had observed on a monitor what had occurred. He came out and confronted defendant, telling him to leave the store. Instead of leaving, defendant walked toward the back of the store and returned to the front with the other male who had come into the store. Defendant and the male stood by the front door and Shackelford spoke to them. The two then walked outside, where they were joined by the female who had been present. After speaking briefly, the trio got into a vehicle and left. Winslow wrote down the vehicles license plate number and Shackelford called the police. Defendant was later arrested.

The incident was videotaped and the tape was given to the jury for viewing during its deliberations.

Winslow and Shackelford each identified defendant in court as the perpetrator. Winslow also testified that on September 13, 2005, he received a letter from the defendant bearing Winslows home address. The letter, dated September 11, 2005, was received in evidence and read by the prosecutor to the jury. The letter (as written) stated:

Mr. Winslow, M.

Whats up Marcus. How you doin. I know your probably wonderin how I got your address, well thats why Im writing you my brotha to inform you how I got such valuable information I got it from the State of California Department of Corrections [CDC], from a C.D.C. 1654 form. C.D.C. is responsible for your address being exposed. You and I both know I didnt have it and you didnt give it to me. That just goes to show you how currupted these devils our. I strongly feel there tryin to set me up and you as well by having you testify on me for horse playin in the gas station store then allowing me to obtain your address. Im currently filing a law suit on C.D.C. and the Sacramento police department and I strongly feel you should do the same. Based on they put our lives in danger. []  For one, S.P.D. took you to my house to I.D. me which was out of there jurisdiction, based on my last name (Barksdale) they felt the need. Also C.D.C. allowed me to obtain your address from a (CDC 1654 form). I do have a copy of the (CDC 1654) form so if u get an attorney I would be more than glad to give him/her a copy. I also have Mr. Shackelford, G. address from the (CDC 1654). Its 5101 Pine Brook Way, Sacto, CA, 95822. U may inform him if you like thats on u my main concern is u and I as African Americans feel me. Holla back.

Discussion

I

Prior to trial, the prosecution sought to have admitted the letter sent by defendant to Winslow, claiming the letter was relevant to identify defendant and that it constituted an implied threat to keep Winslow from testifying, thereby constituting a consciousness of guilt. Defendant objected, arguing the letter was irrelevant because counsel was willing to stipulate to identity and the letter was friendly and nonthreatening. The court ruled that whether the letter was threatening could be argued either way; therefore, it was relevant and admissible. The trial court ruled that defendants parole status was irrelevant and the court directed the prosecutor to admonish his witness not to mention it.

Later, the admissibility of the letter was revisited and defense counsel added that the letter should be excluded under Evidence Code section 352 because its references to the California Department of Corrections disclosed defendants parole status. The court rejected counsels argument, concluding that the jurors were not likely sophisticated enough to determine from the letter that defendant was on parole, and [w]hether charged or not any effort by defendant to dissuade or intimidate a witness can be seen as a consciousness of guilt and, therefore, [the letter is] admissible.

Defendant challenges this ruling, arguing the court abused its discretion in not excluding the letter because its relevance was marginal and danger of prejudice substantial. The letter was marginal, defendant claims, because [a]t best [it was] ambiguous in that it contained no implied threat to Winslow, stated no particular harm which would befall Winslow, and that it shows no more than, as stated, that he was simply horse playin. The letter risked substantial undue prejudice, defendant argues, because it was likely the jurors would infer that he was on parole since the letter made frequent references to the CDC, and the numbers on the return address portion of the envelope plainly reveal [he] is writing from some form of institution. The argument is not persuasive.

Evidence Code section 352 authorizes the court, in its discretion, to exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will . . . create a substantial danger of undue prejudice. (Evid. Code, 352; People v. Sanders (1995) 11 Cal.4th 475, 512.) A trial courts ruling made pursuant to Evidence Code section 352 is reviewed under the abuse of discretion standard. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 75.)

While we are unwilling to assume, as did the trial court, that despite defendants repeated references to CDC, the jurors lacked sufficient sophistication to deduce that defendant may have been on parole, we do not find the letters relevance to be substantially outweighed by its potential prejudice.

Defendants defense was that he was not trying to rob Winslow in demanding and grabbing at the money sleeves, but was just horsin around. This defense was corroborated by defendants casualness in leaving the store after Shackelford confronted defendant and told him to leave, i.e., conduct inconsistent with an attempt to commit robbery.

The letter could easily be interpreted as a veiled threat to keep Winslow and Shackelford from testifying. The letter was sent by defendant to Winslow, even though the latter had never seen defendant before the service station incident. The letter states that the CDC is trying to set up defendant and Winslow by having Winslow testify, and that their lives were in danger, but failed to set forth any reason why they were being set up or why their lives would be in danger. The letter let Winslow know that defendant had Winslows and Shackelfords addresses, showing that he had physical access to them if he so desired. Defendants repeated references to the CDC made it plain that he was familiar with that institution and, inferentially, that this was so because he had previously committed a criminal offense. That he had committed a criminal offense, in turn, was a clear signal that he could be considered dangerous. Indeed, this last inference was central to a finding that the letter was in fact a veiled threat. Consequently, on this state of the record, we cannot find an abuse of discretion by the courts admission of the letter.

II

Defendant contends that the trial court prejudicially erred when it denied his motion for mistrial based on prosecutorial misconduct. We disagree.

The issue arises as follows. Prior to trial, the trial court ruled that defendants parole status was irrelevant and should not be disclosed to the jury, and the court directed the prosecutor to so admonish his witnesses. During Grant Shackelfords direct testimony, the prosecutor asked him, And since June 15th, 2005, have you spoken to anyone from law enforcement or from the DAs office about the actual facts of this case? Shackelford replied, Just over at the branch, the parole hearing I guess it was.

Counsel moved for a mistrial, claiming defendant had been irreparably prejudiced by Shackelfords answer which, in violation of the courts order, disclosed to the jury defendants parole status. The prosecutor stated that while he had admonished the law enforcement witnesses not to mention defendants parole status, he had not similarly admonished Shackelford. The omission occurred, the prosecutor explained, because he had no knowledge of the parole hearing, he had assumed that Shackelford did not know of defendants parole status, and informing Shackelford of defendants parole status risked providing Shackelford with a motive to embellish or one way or the other to [a]ffect him.

The trial court denied the mistrial motion and ordered Shackelfords reply stricken from the record. The court instructed the jury that Shackelfords comment was inappropriate, that Shackelford had been speculating about the nature of the hearing when he used the word parole, and directed the jury not to consider the statement during deliberations.

Defendant argues that the prosecutors failure to follow the courts direction by admonishing Shackelford not to mention defendants parole status, coupled with Shackelfords disclosure of that status, constituted prosecutorial misconduct which resulted in prejudice to defendant. We reject the contention.

To the extent defendants argument is based on prosecutorial misconduct, the issue is not reviewable. It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Pinholster (1992) 1 Cal.4th 865, 941-942.) Here, although counsel requested an admonition to the jury not to consider Shackelfords comment, no objection whatsoever was made on the ground of prosecutorial misconduct. Consequently, we do not consider defendants argument on that basis.

Nevertheless, we will review defendants argument under the traditional rules regarding motions for mistrial. A trial court should grant a motion for mistrial only when a partys chances of receiving a fair trial have been irreparably damaged [citation], that is, if it is apprised of prejudice that it judges incurable by admonition or instruction [citation]. (People v. Avila(2006) 38 Cal.4th 491, 573.)

Notwithstanding defendants casual behavior in leaving the store after having been confronted by Shackelford, which is inconsistent with an attempt to commit robbery, this was not a close case. It is simply inconceivable that defendant would threaten to kill Winslow, a person he did not know, and attempt to grab the money from him unless he was serious about obtaining the money. That this is so is bolstered by defendants having sent the letter to Winslow impliedly threatening to harm Winslow if he testified against defendant. And of no little import, a videotape of the entire incident was played for the jury. Also notably, the jury retired to deliberate on December 30 at 12:55 p.m., and reached a verdict at 2:30 p.m., showing that it was likely not troubled by defendants defense. Finally, the jury was instructed by the court not to consider Shackelfords comment regarding defendants parole status in its deliberations. In the absence of evidence to the contrary, and there is none, the jury presumably followed the trial courts admonition. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1374 [jurors are presumed to adhere to the courts instructions absent evidence to the contrary].)

Consequently, under any harmless error standard the error in the jurys having learned of defendants parole status could not have affected the verdict.

III

Defendant contends the trial court prejudicially erred when it failed to instruct the jury on the asportation element of robbery. We conclude there was no prejudice.

An attempt to commit a crime consists of two elements:

a specific intent to commit the crime, and a direct but ineffectual act done toward [the target crimes] commission

( 21a), and the jury was so instructed.

Robbery, the target crime, is defined as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.)

The taking element of robbery itself has two necessary elements, gaining possession of the victims property and asporting or carrying away the loot. Here, however, the jury was not so instructed. While the trial court correctly instructed the jury that for the crime of attempted robbery [t]he words attempted to take or attempted taking require proof of attempting to take possession of the personal property, it intentionally omitted the asportation element of attempted taking in the belief that it was giv[ing] the most accurate legal . . . and efficient instructions I could.^[2]

Because an attempt to commit a crime requires the specific intent to commit the crime, the court should have instructed on every element of the target offense. (In re Alberto S. (1991) 226 Cal.App.3d 1459, 1464.) Reversal for such error is required unless it can be shown beyond a reasonable doubt that the error did not contribute to the jurys verdict. (People v. Cole (2004) 33 Cal.4th 1158, 1208.) Consequently, the omission was error.

Here, by its verdict the jury found beyond a reasonable doubt every element of attempted robbery on which it was instructed, which included the specific intent to permanently deprive Winslow of the money he was holding. The sole element on which the court failed to instruct the jury was that the attempted taking was made with the intent to take the property away, i.e., the asportation element of the offense. It defies logic to think that where, as here, the jury found that defendant had attempted to take money from Winslow by force and fear, the jury would not also have found, if so instructed, that he did not intend to carry it away. In other words, if defendant had been able to take the money from Winslow, he would not have just stood there with it. Consequently, the error was harmless beyond a reasonable doubt.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1] Hereafter, undesignated section references are to the Penal Code.

^[2]The courts full instruction on robbery was: Attempted robbery: The defendant is accused in the charge, [c]ount [o]ne, of having committed the crime of attempted robbery in violation of section 664 slash 211 of the California Penal Code. Every person who attempts to take personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent to permanently deprive that person of the property is guilty of the crime of attempted robbery in violation of California Penal Code section 664 forward slash, 211. [] The words attempted to take or attempted taking require proof of attempting to take possession of the personal property. Immediate presence means an area within the alleged victims reach, observation or control so that if he could if not overcome by violence or prevented by fear retain possession of the subject property. [] Against the will means without consent. [] In order to prove this crime, each of the following element[s] must be proved: [] One. A person had possession of property of some value however slight. [] Two. The property was attempted to be taken from that person or from his immediate presence. [] Three. The property was attempted to be taken against the will of that person. [] Four. The attempted taking was sought to be accomplished by either force or fear. [] Five. The attempted taking of that property was made with the specific intent to permanently deprive that person of the property.