P. v. Clark

Filed 8/18/09 P. v. Clark CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal from the judgment after a jury convicted appellant Craig Clark of second degree robbery and found true the allegation that he inflicted great bodily injury. The trial court thereafter found that appellant had previously been convicted of two offenses for which he served prison terms and sentenced him to a total of fifteen years in prison. On appeal, appellant contends the trial court committed reversible error by denying his motion to suppress evidence relating to an unduly suggestive lineup and by admitting evidence relating to his prior attempted robbery conviction. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 26, 2007, an information was filed charging appellant with one count of second degree robbery (Pen. Code,  211, 212.5), and alleging that he inflicted great bodily harm (id.,  12022.7, subd. (a),  1192.7, subd. (c)(8)).[1] The information further alleged that appellant had been convicted of five prior offenses that had resulted in three prior prison terms ( 667.5, subd. (b)), had been convicted of one prior serious felony ( 667, subd. (a)(1)), and had sustained one prior strike conviction ( 667, subd. (e)(1), 1170.12, subd. (c)(1)).

On January 30, 2008, a 6-day jury trial began. The following evidence was presented.

I. The Prosecutions Case.

A. The Robbery of Amy Stabler.

On February 21, 2007, at about 6:20 p.m., Amy Stabler was walking from the West Oakland BART station to a friends house carrying a leather brief case and a birthday cake. Suddenly, appellant appeared on a mountain bike and grabbed Stablers jacket, warning: Give me the money, bitch, or I will hurt you. Stabler tried to break free from appellants grasp as he grabbed for her bag. Stabler stopped resisting, however, when appellant began to punch her repeatedly in the face with a closed fist. Stabler tried to retrieve her purse from the brief case to give to appellant, but he continued to punch her, causing her to fall to the ground. Eventually, Stabler, fearing for her life, pretended to pass out.

When Stabler finally heard appellant leave, she got up from the ground and found that her purse, which contained her wallet and cell phone, was missing. Stabler then walked to the BART station and called 911, reporting that she had been attacked by an African American wearing a black little hat and a black jacket.

That same evening, while at the hospital being treated for her injuries, Stabler was interviewed by police.[2] The police report that was subsequently prepared described Stablers assailant as a six-feet tall, 175-pound, medium to light-skinned African American male. Omitted from the report was the fact that Stabler also described her assailant as having blue-green eyes.[3]

Within days of the robbery, Stabler contacted her cell phone provider to report that her phone had been stolen, and was told she could keep her existing phone number because it was not linked to her address. When Stabler received her new cell phone, she was able to retrieve several messages received in her voicemail on the night of the robbery. One of those calls was from an unknown woman looking for Craig. The unknown womans message stated that [s]omebody called me from this number and that if this is Craig, bring your ass home if youre doing what I think . . . on the West side. Stabler saved the message and later played it for the police.

B. The Investigation.

Sergeant Lindsey of the Oakland Police Department investigated the robbery. She discovered that someone had used Stablers stolen credit card at a gas station two blocks from the BART station where the robbery occurred, and had attempted to use it at a market on Willow Street in Oakland.

Using Stablers description of the assailant and the name Craig that was mentioned in the message left in Stablers voicemail, Sergeant Lindsey searched a law enforcement database for possible suspects. In doing so, Sergeant Lindsey discovered that appellant, whose first name is Craig, lived one block from the market on Willow Street where someone had attempted to use Stablers stolen credit card. Sergeant Lindsey also discovered that appellant had been arrested for auto burglary across the street from where Stabler was robbed, and that he had been on a mountain bike at the time.

Sergeant Lindsey assembled a photographic lineup, using appellants photograph, as well as those of other suspects named Craig whose race, age, height and weight matched Stablers description of the assailant. Sergeant Lindsey also investigated the phone numbers listed in Stablers cell phone records from the night of the robbery. Those records revealed that calls were made from Stablers cell phone to, among others, Gloria Pierce, who lived at 700 Willow Street across the street from the market where someone attempted to use Stablers stolen credit card. Additionally, Sergeant Lindsey called the phone numbers listed for calls received by Stablers cell phone on the night in question. One of those calls was answered by Shaunte Paige, who identified herself to Sergeant Lindsey as appellants girlfriend and acknowledged leaving the message for Craig on Stablers cell phone.

C. Shaunte Paiges Cell Phone Message.

Since December 2006, Paige had lived with appellant, her boyfriend, in Alameda. On February 16, 2007, appellant called Paige to say he was on his way home, but never arrived home or called. By February 21, 2007, the day Stabler was robbed, Paige still had not seen or heard from appellant. Appellant had previously disappeared for several days at a time, and would eventually call Paige from unknown numbers, as he did not have his own cell phone. On the night of February 21, 2007, Page received a call from an unknown number, which she believed may have been from appellant. Accordingly, Paige called the number back and left a message for appellant. Paige did not see appellant again until March 10, 2007, after he was arrested.

Before the September 14, 2007, preliminary hearing, appellant called Paige and asked that she not testify, telling her to either move or just dont show up. When Paige refused, appellant became enraged and yelled that she better not go to court. Paige thereafter ended their relationship and changed phone numbers.

Nonetheless, on January 29, 2008, before trial, appellant called Paige from Santa Rita jail, asking her, Bitch, why are you snitching?[4]Appellant then threatened that he would put the word out that you [sic] snitching, which frightened Paige and prompted her to call the jail to request that appellant be restricted from calling her.

D. Stablers Identifications of Appellant.

On March 5, 2007, Sergeant Lindsey showed Stabler a photographic lineup with approximately 36 suspects. Based on Sergeant Lindseys investigation, several of those suspects had the first name of Craig, and also had ties to West Oakland and race, age, height and weight characteristics that matched Stablers description of her assailant. Stabler did not positively identify any of the suspects. She did, however, identify three suspects, including appellant, who look[ed] similar to the suspect that robbed her.

On March 26, 2007, Stabler viewed a physical lineup of six suspects, including appellant. Consistent with standard procedures, appellant selected the other five participants from among the inmates in jail with him. When appellant walked forward during the lineup, Stabler stood up, something she did not do with the other suspects. Stabler later informed Sergeant Lindsey that she was 70 to 80 percent certain that appellant was her assailant.

Thereafter, at both the preliminary hearing and trial, Stabler identified appellant as her assailant with 90 percent certainty.

E. Appellants Prior Conviction for Attempted Robbery.

In October 2002, appellant attempted to rob Karen Hunsaker at around 8:30 p.m. as she was walking from the MacArthur BART station in Oakland. Appellant grabbed Hunsakers hair from behind and demanded, Give me your money.  Give me your money. Believing a friend was playing a joke, Hunsaker responded that she didnt feel like it. Hunsaker then turned to face appellant, and realized it was not a joke. Appellant continued demanding her money, but she refused and twisted away from his grip. Appellant looked at Hunsaker, shrugged and turned away. Hunsaker, experiencing a jolt of adrenaline, began yelling at appellant and chasing him away. She chased appellant back to the BART station, where BART police were able to arrest him. Appellant thereafter admitted guilt and was convicted of attempted robbery.  

II. The Defense Case.

Appellant testified on his own behalf at trial. Appellant denied robbing Stabler and stated that he could not recall what he was doing that day.  

Appellant acknowledged his relationship with Paige, and that he had several times during their relationship disappeared for several days at a time. Appellant further acknowledged that he did not return home or call Paige on February 16, 2007, and that, on February 21, 2007, he may have called her with a cell phone borrowed from his friend, Charles Prince. When Paige did not answer her phone, appellant did not leave a message.

Appellant testified that he did not mention borrowing Princes cell phone when he was interviewed by Sergeant Lindsey before trial because he didnt feel comfortable saying anything at all without . . . a lawyer. Prince lived on Willow Street in Oakland, directly across the street from the market where someone attempted to use Stablers stolen credit card.

Appellant denied threatening Paige before trial, but acknowledged that he may have called her and said something like, How could you do . . . that? because he was scared.

On cross-examination, appellant admitted prior convictions in 2002 for the attempted robbery of Hunsaker, and in 2001 for grand theft. Appellant also admitted being charged with auto theft in 2007 after breaking into a car parked near the West Oakland BART station while on a mountain bike.

Police Officer Lau testified that he was trained to take statements from crime victims, and that his police report indicated that Stabler had responded, unknown, when asked if she recalled her assailants eye color.

III. The Verdict and Sentencing.

On February 7, 2008, the jury found appellant guilty as charged and found true the great bodily injury enhancement. On March 7, 2008, the trial court found true two of the prior conviction allegations, and found not true three other such allegations. The trial court then sentenced appellant to a total prison term of fifteen years, leading to this timely appeal.

DISCUSSION

Appellant raises two arguments on appeal. First, appellant contends the trial court violated his constitutional right to due process by failing to suppress the results of an unduly suggestive pretrial physical lineup. Second, appellant contends the trial court committed prejudicial error by admitting improper propensity evidence relating to his prior conviction for attempted robbery. We address each argument below.

I. Evidence Relating to the Identification of Appellant during a Pretrial Lineup.

Prior to the preliminary hearing, appellant moved to suppress evidence relating to a physical lineup held March 26, 2007, during which Stabler identified him as her assailant. Appellant argued that the lineup was unduly suggestive because he was the only person appearing in both the physical lineup and a photographic lineup that was shown to Stabler earlier, on March 5, 2007.[5]

At the hearing on appellants motion, the trial court heard testimony from Sergeant Lindsey, who conducted both the photographic lineup and the physical lineup, and from Deputy Mark Schlegl, who assisted with the physical lineup.

Sergeant Lindsey described the process by which the photographic lineup was conducted. Based on the voicemail message left for Craig on Stablers cell phone on the night of the robbery, Sergeant Lindsey searched in a criminal database for suspects with the first name of Craig who had ties to West Oakland, where the robbery occurred. In addition, once suspects named Craig were identified, Sergeant Lindsey then selected those whose height, weight, age and race matched the description Stabler gave to police just after the robbery. Sergeant Lindseys search based on these restrictions yielded six individuals, whose photographs were combined with the photos of about 30 fillers.[6]

Sergeant Lindsey showed the resulting photographic lineup to Stabler in groups of six, each of which contained at least one man named Craig. Stabler thereafter identified appellant and two other men as her possible assailant, although she told Sergeant Lindsey that she did not feel strongly about any one individual. With respect to appellant, however, Stabler was really adamant that he had a similar mouth to her assailant.

After the photographic lineup, Sergeant Lindsey conducted a physical lineup using appellant and five other males that appellant had chosen to participate from among the other jail inmates.  According to Deputy Schlegls testimony, the common procedure is to inform a suspect that he has the option of being escorted through the jail to choose five participants that he feels look[ ] like him. Appellant, having chosen this option, selected five participants, each of whom was of either Hispanic or Asian heritage.[7]

Before the physical lineup, Sergeant Lindsey informed Stabler that the lineup included a possible suspect that may or may not be the person who committed the robbery. Stabler was not informed that appellant was the lone individual to have also participated in the photographic lineup.[8]The participants were then instructed to, one at a time, walk forward and repeat the command told to Stabler during the robbery: Give me the money, bitch, or I will hurt you. When appellant walked forward during the lineup, Stabler stood, something she failed to do when the other participants walked forward. Following the lineup, Stabler placed a question mark next to appellant and indicated with 70 to 80 percent certainty that appellant was her assailant, explaining later that the face shape, the mouth, the hands were dead on for [her].

Following the hearing, the trial court denied appellants motion to suppress the evidence. In doing so, the trial court noted that appellant had failed to identify anything unusual about the lineup participants, each of whom appellant had chosen. Appellant likewise failed to identify anything suggestive about the photographic lineup, which was comprised of booking photographs of men with the first name of Craig who matched the height, race, weight and age descriptions given by Stabler immediately after the robbery.

At the preliminary hearing, Stabler described the person who robbed her as a 6‑foot man wearing a dark jacket, a black beanie, with a bike, light complexion, African American. Stabler then identified appellant in court as the assailant with 90 percent certainty.

Following the preliminary hearing, appellant filed another motion to suppress seeking to exclude Stablers in-court identification of him on the ground that it was tainted by the unduly suggestive physical lineup. The trial court denied the second motion without further comment.

At trial, Stabler again identified appellant as her assailant with 90 percent certainty.

On appeal, appellant claims the trial courts ruling to admit the evidence relating to the physical lineup was erroneous and a violation of his due process rights. We independently review the trial courts decision to admit this evidence to determine whether the procedure utilized was unduly suggestive. (People v. Gonzalez (2006) 38 Cal.4th 932, 942; People v. Kennedy (2005) 36 Cal.4th 595, 608-609.) Appellant then has the burden to show the identification procedure was unreliable under a totality of the circumstances. (People v. Ochoa (1998) 19 Cal.4th 353, 412.)

 The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. (People v. Gordon (1990) 50 Cal.3d 1223, 1242 [270 Cal.Rptr. 451, 792 P.2d 251].) In other words, [i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends. (United States v. Bagley (9th Cir. 1985) 772 F.2d 482, 492.) (People v. Ochoa, supra, 19 Cal.4th at p. 412.)

We thus turn first to the issue of whether the identification procedure was unduly suggestive.  A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police. [Citation.] (People v. Ochoa, supra, 19 Cal.4th at p. 413.) Otherwise stated, to be fair, an identification procedure must not cause[] [the] defendant to stand out from the others in a way that would suggest the witness should select him. [Citation.] (People v. Cunningham (2001) 25 Cal.4th 926, 990.) Moreover, there must be a substantial likelihood of irreparable misidentification under the    totality of the circumstances    to warrant reversal of a conviction on this ground. [Citation.] (People v. Cunningham, supra, 25 Cal.4th at p. 990.)

Here, in arguing that the physical lineup was unduly suggestive, appellant first asserts that he was the only African-American in the lineup, while each of the other five participants was of Hispanic or Asian heritage. Further, appellant asserts that he was the only individual to be included in both the photographic lineup and the physical lineup. We conclude that neither of appellants assertions, even if true, rendered the physical lineup unduly suggestive.

With respect to appellants first assertion, the record indeed establishes that appellant was the only African-American participant in the physical lineup. The record also establishes, however, that this circumstance was due entirely to appellants own conduct. As explained above, Deputy Schlegl, consistent with standard procedures, gave appellant the choice which he exercised to select five individuals whom he believed resembled him from among the other jail inmates. As such, appellants argument fails because the constitutional doctrine requiring suppression of evidence obtained in unduly suggestive lineups is designed to curtail coercion by those acting as agents of the government. It is not designed to curtail actions by private actors, such as those of appellant in choosing the other lineup participants.[9] (People v. Peggese (1980) 102 Cal.App.3d 415, 422 [the exclusionary rule for in-court identifications applies only to suggestive pretrial identification procedures utilized by police officers]; Colorado v. Connelly (1986) 479 U.S. 157, 165-166 [due process claims must be premised on state action].)

People v. Boyd (1990) 222 Cal.App.3d 541, supports this conclusion. There, the Court of Appeal rejected the defendants claim that a pretrial lineup was unduly suggestive because he failed to enter the stage in proper order and shook his head during the lineup. In doing so, the court explained that [c]ourts in other jurisdictions have uniformly rejected the proposition that a defendant may claim constitutional error based on his own actions. (See, e.g., State v. Kirk (Mo. 1982) 636 S.W.2d 952, 955 [A pretrial lineup will not be deemed impermissibly suggestive where any suggestiveness was due to defendants own contumacy and personal refusal to behave unobtrusively. [Citation.]]; People v. Nelson (1968) 40 Ill.2d 146 [238 N.E.2d 378, 382 [It is plain too, and does not require discussion that if the defendant stood out, . . . and attracted attention to the lineup proceedings it was not because of any suggestive conduct by the police but was attributable to his own behavior . . .].) We agree with these decisions; a defendant may not base his claim of deprivation of due process in a lineup on his own behavior. We likewise reject the notion that the police had any obligation to control [defendants] behavior so as to prevent him from drawing undue attention to himself. (People v. Boyd, supra, 222 Cal.App.3d at pp. 574-575. Compare People v. Boothe (1977) 65 Cal.App.3d 685, 691 [noting that the court was unaware of any authority permitting a defendant to challenge a pretrial lineup based on conduct by private citizens].)

We agree with this analysis. Because appellant freely chose the other participants in the physical lineup, his due process challenge based on the absence of other African Americans in that lineup must fail.

In any event, appellant identifies himself as a light skinned man with Caucasian and African American parents. As such, appellant acknowledges in his reply brief that it was quite reasonable that [he] would select more light-skinned individuals and those who appeared to be of mixed race to be in his line up over any dark or medium skinned African-American individuals. Consistent with this, Stabler initially described appellant to police as a medium to light skinned African American with blue-green eyes.[10] In a prior crime, appellant was identified by the victim as Puerto-Rican African American. And when appellant chose participants who were of Hispanic or Asian descent for the lineup, Deputy Schlegl found nothing unusual about appellants choice and did not believe appellant stood out. Under these circumstances, we cannot conclude that appellants race alone rendered the identification procedure unduly suggestive. (See People v. Blair (1979) 25 Cal.3d 640, 661 [upholding identification where defendant was at least seven years older and thirty-seven pounds heavier than anyone else, and noting there is no requirement that a defendant in a lineup  be surrounded by people nearly identical in appearance. ].)[11]

Appellant next claims the procedure with respect to the physical lineup was unduly suggestive because he was the lone person to have participated in both the photographic lineup and the physical lineup. In making this argument, appellant insists that Stabler was less certain of his identity at the photographic lineup, yet became more certain at the physical lineup, not because of any distinctive physical feature he had, but because she had seen him before in the photographic lineup. We again disagree.

As this Appellate District has previously held, the mere fact that a defendant is the only person appearing in both a photographic display and a subsequent physical lineup does not render the identification procedure unduly suggestive. (People v. Wimberly (1992) 5 Cal.App.4th 773, 789 [California and federal courts have rejected the argument that identification procedures are impermissibly suggestive if the defendant is the only person appearing in both a display of photographs and a subsequent lineup].) We thus consider whether there were any other circumstances that rendered appellants dual participation in the lineups impermissibly suggestive in this case.

A California Supreme Court decision is helpful. In People v. Yeoman (2003) 31 Cal.4th 93, the defendant challenged an identification as unduly suggestive where photographs of him were included in two separate lineups. The first lineup showed five photographs, one of which was of the defendant and was at least a year to a year and a half old. (Id. at p. 124.) The victim did not identify anyone as the assailant. A month later, the victim viewed another lineup of five photographs, one of which was a recent photograph of the defendant. (Ibid.) Afterward, the victim identified defendant as her assailant. The Supreme Court refused to suppress the evidence, explaining that [t]o use a suspects image in successive lineups might be suggestive if the same photograph were reused or if the lineups followed each other quickly enough for the witness to retain a distinct memory of the prior lineup. But here, different photographs of defendant appeared in each lineup, and the two lineups were separated in time by a month. Under these circumstances we see no reason to believe that the use or position of defendants image in both lineups was unnecessarily suggestive. (Ibid.)

Here, Stabler reviewed the photographic lineup on March 5, 2007, about two weeks after the February 21, 2007 robbery. She chose appellants photograph as one of three from among 36 photographs of men who could have been her assailant, and was adamant that appellants mouth looked familiar. Two weeks later, on March 26, 2007, Stabler attended the physical lineup, where she was told there is a possible suspect that may or may not be the person who committed the robbery. During the lineup, each of the five participants walked forward and repeated the words Stabler heard when she was robbed: Give me the money, bitch. Afterwards, Stabler again identified appellant as her assailant, this time with 70 to 80 percent certainty.

Under these circumstances, we cannot conclude that appellants participation in both lineups was unnecessarily suggestive. First, this is not a situation where the same photographic image of appellant was used twice within a short period of time. (See People v. Yeoman, supra, 31 Cal.4th at p. 124.) Rather, appellants photograph was one of 36 shown to Stabler and then two weeks later he appeared in person. As such, there inevitably were differences in appellants appearance, including the fact that more of appellants physique is visible in person than in a photograph. (See People v. Spencer (1972) 22 Cal.App.3d 786, 795-796 [a physical lineup identification was permissible where it was made one week after the victim viewed a photograph of the defendant].) Moreover, at the physical lineup, appellant was required to walk forward and say the exact phrase spoken during the robbery providing additional information about appellant that may have further triggered Stablers memory.

We thus conclude the procedure by which Stabler identified appellant in the physical lineup was not unduly suggestive. As such, our inquiry with respect to this issue ends. As set forth above, for identification procedures to be constitutionally infirm, they must be both unduly suggestive and unreliable under the totality of circumstances. (People v. Ochoa, supra, 19 Cal.4th at p. 412.) Accordingly, regardless of whether the identification procedure in this case was reliable under a totality of the circumstances, it did not offend due process.[12] (Ibid.)

II. Evidence Relating to Appellants Prior Attempted Robbery Conviction.

We next consider appellants argument that the trial court committed reversible error by admitting evidence of his 2002 conviction for attempted robbery. According to appellant, admission of this evidence violated Evidence Code sections 1101, subdivision (b), and 352. We again disagree.

A trial court is granted wide discretion in deciding the admissibility of evidence. (People v. Kelly (1992) 1 Cal.4th 495, 523.) As such, on appeal, we reverse a trial courts decision to admit or exclude evidence only if the defendant establishes an abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) An abuse of discretion is established where the trial court acts in an arbitrary or irrational manner, exceeding all bounds of reason. (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)

Evidence Code section 1101, subdivision (a), provides that, [e]xcept as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. Subdivision (b) of this statute, in turn, permits admission of evidence of a persons character or a trait of his or her character, including evidence of his or her conduct on a specific occasion, when relevant to prove some fact other than a persons disposition to commit crimes, such as the persons motive, identity, intent or common scheme or plan. (Evid. Code,  1101, subd. (b).)

Here, the trial court admitted evidence of appellants 2002 conviction for attempted robbery pursuant to Evidence Code section 1101, subdivision (b), after concluding that the evidence was probative of appellants identity as the perpetrator of the crime and of his actions pursuant to a common scheme or plan. Accordingly, the following principles are relevant.

Evidence of a defendants prior criminal conduct is admissible to prove identity, common design or plan, or intent only if the prior criminal conduct and the charged offense are sufficiently similar to support a rational inference of identity, common design or plan, or intent. (People v. Kipp (1998) 18 Cal.4th 349, 369.)

To be relevant on the issue of identity, the prior crime must be highly similar to the charged offenses. In particular, evidence of a prior crime is relevant to prove identity only if the prior and charged offenses display a   pattern and characteristics . . . so unusual and distinctive as to be like a signature.   [Citations.] The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks. (People v. Kipp, supra, 18 Cal.4th at pp. 369-370. See also People v. Yeoman, supra, 31 Cal.4th at p. 122.)

A lesser degree of similarity is required to establish relevance on the issue of common design or plan. [Citation.] For this purpose, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. [Citation.] (People v. Kipp, supra, 18 Cal.4th at p. 371. See also People v. Lewis (2001) 25 Cal.4th 610, 636-637.)

In addition, even if otherwise admissible under Evidence Code section 1101, subdivision (b), the evidence must nonetheless be excluded if its admission would violate the principles underlying Evidence Code section 352. (People v. Lewis, supra, 25 Cal.4th at p. 637.) Under Evidence Code section 352, the trial court has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,  352. See People v. Lewis, supra, 25 Cal.4th at p. 637 [evidence of prior uncharged misconduct   is so prejudicial that its admission requires extremely careful analysis  and to be admissible, such evidence  must not contravene other policies limiting admission, such as those contained in Evidence Code section 352  ].) With these rules in mind, we turn to the facts at hand.

Here, the record reveals that appellants attempted robbery in 2002, to which he pleaded guilty, was committed against a 32-year-old white female who was leaving a BART station in Oakland (MacArthur Station) in the early evening hours during the work week.Similarly, in this case, appellant robbed Stabler, a 44-year-old white female, as she left the West Oakland BART station in the early evening during the work week. Further, in 2002, appellant attacked the victim from behind, grabbing her hair to restrain her and then demanding her money. Here, similarly, appellant grabbed Stablers jacket from behind to restrain her and then demanded her money.

True, in the prior case, appellant was on foot and fled when the victim resisted his demands, whereas in this case, appellant was initially on a bicycle and brutally punched Stabler several times in the face when she resisted, eventually fleeing after taking her belongings. However, these distinctions, in light of the many commonalities, do not render the evidence of the prior crime irrelevant. As the trial court found, the 2002 attempted robbery and the present robbery shared many distinctive features including location (Oakland BART stations), time of day and week (early evening during the work week), mode of attack (from behind), choice of victims (white females), and relative proximity of time (five years apart) such that the evidence of the prior crime was substantially probative on the issues of identity and common plan or design. (See People v. Prince (2007) 40 Cal.4th 1179, 1271-1272 [no abuse of discretion to admit evidence of prior criminal acts to prove identity and common scheme or plan where victims were of similar ages, belonged to the same race and were attacked in their homes in the same vicinity and around the same time of day]; People v. Miller (2000) 81 Cal.App.4th 1427, 1448-1449 [no abuse of discretion to admit evidence of prior criminal acts to prove common plan or scheme and intent where the defendant approached the victims in a similar manner and the victims were all elderly men who were alone and appeared vulnerable].)

Moreover, even if it could be said that the trial court erred in admitting the evidence of his prior conviction on the issue of identity, which requires a particularly high degree of similarity, appellant would nonetheless have suffered no prejudice because the same evidence was properly admitted to show a common plan and scheme, which requires a lesser degree of similarity. (People v. Kipp, supra, 18 Cal.4th at p. 371 [to prove common plan or scheme, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual]; People v. Yeoman, supra, 31 Cal.4th at p. 122.)

We further conclude the probative value of the evidence relating to appellants 2002 conviction was not substantially outweighed by the probability that the evidences admission would necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,  352.) Indeed, the evidence of the prior conviction was significantly less inflammatory than the testimony relating to the charged offense, given the greater viciousness with which appellant attacked Stabler and inflicted serious injury. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [under section 352, the trial court must ensure that evidence of a defendants prior criminal conduct was no stronger and no more inflammatory than the testimony concerning the charged offenses].) Moreover, presentation of the evidence testimony from the victim and the arresting police officer did not consume an undue amount of time at trial, constituting just 25 pages of the 600-page reporters transcript.

Accordingly, given the number and the nature of the characteristics shared by the two crimes, we conclude the trial court did not abuse its discretion when it admitted evidence of appellants prior conviction for attempted robbery to establish his identity as the perpetrator of the present robbery and to establish that he acted pursuant to a common plan or scheme.

DISPOSITION

The judgment is affirmed.

_________________________

Jenkins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Siggins, J.

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[1] Unless otherwise stated, all statutory citations herein are to the Penal Code.

[2] Stabler was treated at the hospital for multiple fractures to her eye socket and facial bones.

[3] Stabler testified at trial that, during the interview, she also described appellant as having blue-green eyes, but that the responding officer, who appeared to be a rookie, failed to include the information in the police report.

[4] In addition, on January 22, 2008, 61 calls were made from Santa Rita jail to Paiges cell phone, however none were from appellants housing unit. On January 29, 2008, fourteen calls were made from Santa Rita jail to Paiges cell phone, but, again, none were from appellants housing unit. 

[5] Appellant further argued the physical lineup was improper because it was conducted outside the presence of counsel. Appellant does not raise this argument on appeal, so we discuss it no further.

[6] Sergeant Lindsey explained that fillers were other individuals who may fit or be closely related to the race and height and age as the other person that were looking at.  

[7] Appellant chose the following individuals: Veider Rodriguez Rivera, Ricardo Alvarez, Sammy Sultan, Damon Davis, and Jose Martinez.

[8] The other two individuals that Stabler had identified in the photographic lineup as her possible assailant were excluded because one died in 2003 and the other was not named Craig.

[9] The record belies appellants claim that Deputy Schlegl instructed him to select participants from among other jail inmates. Deputy Schlegl gave undisputed testimony that appellant, like other suspects, was merely given the option to select the other lineup participants. Deputy Schlegl further testified that, if appellant had declined to select the other participants in the lineup, Deputy Schlegl would have made the selection for appellant by trying to find people to match [him] likewise as much as possible. In any event, appellant does not challenge the lineup based on this procedure for selecting lineup participants; rather, he challenges the lineup based on his status as the sole African American, which he claims made him stand out.

[10] Appellant claims we should reject Stablers testimony that she noticed during the robbery that he had blue-green eyes because the police report prepared just after the robbery failed to mention this information. Stabler, testified, however, that she noticed appellants blue-green eye color during the robbery because he was only this far away from me. Stabler explained that the omission of his eye color in the initial police report may have been because the officer who prepared it appeared to be a rookie. The jury, as the trier of fact, was free to accept Stablers testimony a decision we will not second-guess on appeal. (People v. Gonzalez, supra, 38 Cal.4th 932, 943 [reviewing court defers to trial courts credibility determinations when considering a denial of a motion to suppress identification evidence].)

[11] Nor is any other physical characteristic evident from this record that would have caused appellant to stand out from the others in a way that would have suggested that Stabler should have picked him in the lineup. (See People v. Cunningham, supra, 25 Cal.4th at p. 990.). The evidence appellant relies upon to argue that he stood out from the other participants is a document with no photographs that lists each participants name, race, age, height and weight. Apart from appellants race, the other three characteristics his age, height and weight appear comparable to those of the other participants. For example, appellant is listed as six feet tall, 200 pounds. The heights of the other participants ranged from 5 feet 10 to 6 feet, and their weights ranged from 190 to 210 pounds.

[12] Since it is easily refuted by the record, we nonetheless briefly address appellants claim that there was no evidence corroborating Stablers identification of him. First, there was evidence that appellants girlfriend, Shaunte Paige, called Stablers cell phone the evening of the robbery, leaving a voice mail stating that [s]omebody called me from this number and that Craig should get . . . home if he is doing what I think . . . on the West side. This evidence not only linked appellant to Stablers property (her cell phone), it linked him to West Oakland, where the robbery occurred. Second, there was evidence that, also on the evening of the robbery, Stablers credit card was used at a market in West Oakland one block away from Campbell Village. Appellant has C.V. tattooed on his left arm, which he told Sergeant Lindsey stood for Campbell Village. Third, the record revealed that appellant had previously been arrested, while on a mountain bike, just across the street from where Stabler was robbed after appellant approached her on a mountain bike. And, finally, appellant was found on a bike eleven days after Stabler was robbed when the police arrested him.