P. v. Farlow
Filed 8/22/12 P. v.
Farlow 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sutter)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DEANDREA JOVELL FARLOW,
Defendant and Appellant.
C066579
(Super.
Ct. No. CRF092926)
Defendant Deandrea
Jovell Farlow and a group of cohorts robbed a bank during business hours. A jury found him guilty of three counts of
firearm, and 20 counts of false imprisonment.
The jury also found that a principle used a firearm during the
commission of the offenses. Sentenced to
11 years eight months in prison, defendant appeals. He contends the trial court erred in
permitting two law enforcement witnesses to testify that it was defendant who
appeared in a video tape and in a still photo, there was insufficient evidence
of false imprisonment of two of the
victims, and that the trial court should have stayed his assault and false
imprisonments terms pursuant to Penal Code section 654 (unspecified section
references that follow are to the Penal Code).
We affirm the judgment.
Facts
and Proceedings
On the morning of
the robbery, Cory Edwards and George Emseih arranged to meet at a gas station
in Fairfield and then drove to
Aaron Watts’s apartment in Sacramento. Watts joined them and
they went to another apartment in the Natomas neighborhood of Sacramento
where they met four more men, including defendant.
The group of seven
men went in three cars to the Target and Wal-Mart stores in Natomas. They communicated using a set of
walkie-talkies. Emseih and Watts
waited in the cars while some of the men, including defendant, went into each
store. The group then went to a gas
station to get fuel. Defendant drove a
black Range Rover with two of the other men as his passengers.
Around 8:30 a.m., they started driving to Yuba
City. When they
arrived in Yuba City, they parked
and discussed what their roles would be in the upcoming bank robbery. Emseih was to be the lookout and getaway
driver. As arranged, he parked his BMW
across the street from the bank.
Defendant, driving the Range Rover, dropped off Watts
and another man outside the bank and left.
Watts
and the other man entered the bank. Watts
waved a handgun and yelled “everybody get down.” The employees and customers either got on the
floor or put their hands in the air. Watts
pointed his gun directly at three different individuals and told them to get
down or to back away from what they were doing.
The other man
jumped behind the counter, took cash from three tellers, and put money in a
bag. The two robbers then ran out of the
bank where Watts got in the trunk and the other man got
in the back seat of Emseih’s waiting BMW.
There was a fourth man in the BMW.
Emseih started driving toward Chico
but was instructed, via walkie-talkie, to pull over. After he stopped, the robber who had been in
the back seat got out of the car and into the Range Rover.
Shortly
thereafter, officers located and stopped the BMW. While Emseih was being arrested, Watts
got out of the trunk, jumped into the driver’s seat and drove away. Officers pursued the BMW to Colusa
County where Watts
was apprehended and most of the stolen money was recovered.
Detectives
obtained video surveillance footage from the bank, the Target and Wal-Mart
stores, and the gas station in Fairfield. The Target store video depicts defendant
entering the store with two of the men, purchasing merchandise used in the
robbery and leaving. The Wal-Mart store
video depicts two of the men purchasing merchandise. The Wal-Mart parking lot video shows the occupants
of the three cars, including the Range Rover, meeting in the parking lot and
leaving together.
Discussion
I
Officer’s
Identification Testimony
Defendant contends
the trial court erred when it permitted Detective Parker to identify him as one
of the people in the Target store video.
Defendant also contends the trial court erred in permitting Detective
Clinkenbeard to testify that he encountered defendant in the lobby of the
courthouse at the preliminary hearing for two of defendant’s cohorts, recognized
defendant as one of the individuals from the Target store video, and confronted
him. These videos were admitted into
evidence. He contends the judgment must
be reversed because the detectives’ testimony constituted improper lay opinion
testimony. (Evid. Code,
§ 800.)
A judgment,
however, will not be reversed for the erroneous admission of evidence unless
there was a timely objection or motion to strike the evidence that clearly
stated the specific ground for the objection or motion and the error resulted
in a miscarriage of justice. (Evid.
Code, § 353.) Here, defendant did
not preserve the contentions for appeal.
In any event, no miscarriage of justice resulted.
Pursuant to a
motion in limine, defense counsel
objected to “any photographs or videos” as irrelevant and prejudicial, although
he later withdrew his objection to the bank surveillance video. He also requested the court to disallow
opinion evidence if it was not supported by a proper foundation. The trial court reviewed the Target and
Wal-Mart store videos outside the jury’s presence, describing the contents of
the videos for the record and noting that the question of identify was for the
jury. Defense counsel continued to
object to the videos based on relevance.
The court overruled the objection and stated the prosecutor would be
permitted to present the videos to the jury.
During the
prosecutor’s case-in-chief, the prosecutor asked Parker to identify individuals
in still shots taken from the Target store video. Parker identified defendant as a person
walking out of the store. Defense
counsel did not object to this testimony
and the photographs were admitted into evidence. Later, after the jury had viewed the Target
store video, the prosecutor asked Parker if he was able to recognize the
individuals shown in the video. At this
point, defense counsel objected, stating the video “speaks for itself.” The trial court allowed the “opinion
evidence,” noting that the jury was free to disagree with Parker on the
identification. Parker identified
several people, including defendant.
The problem with
defendant’s objection to the admission of Parker’s testimony identifying him in
the Target store video is that it was not timely. Parker had already identified defendant in
still photographs taken from the Target store video--without objection. Thus, the issue of whether Parker could be
permitted to identify defendant from the video was not properly preserved. Once Parker identified defendant in the still
photos taken from the video any objection to Parker doing so from the video
itself had been effectively forfeited.
During the
prosecutor’s case-in-chief, Clinkenbeard testified that he encountered
defendant in the lobby of the courthouse on October 9, 2009, at the time of the
preliminary hearing for two of defendant’s cohorts. He recognized defendant from the Target store
video as one of the individuals that had yet to be apprehended in connection
with the bank robbery. Clinkenbeard
confronted defendant, sliding a still photograph taken from the Target store
video in front of defendant and asking defendant if the person in the
photograph looked familiar. Defendant
told Clinkenbeard he did not recognize the person in the photograph. Clinkenbeard then pressed defendant, pointing
out that defendant was wearing the same shirt.
When defendant did not respond, Clinkenbeard said, “It’s you. This is you, this is you.” Defendant denied the accusation and walked
away.
Although defendant
now contends the admission of this identification
testimony was erroneous, it all came in without objection.
Defendant argues
that he was excused from making an objection because such objection would have
been futile, due to the court’s ruling regarding Parker’s testimony. The futility exception to the rule requiring
an objection and request for curative admonition is applied only in “unusual
circumstances.” (People v. Riel (2000)
22 Cal.4th 1153, 1212-1213.)
We need not decide
this point. Even if defendant had properly objected at trial to the
identification testimony of which he now complains, any error in admitting the
testimony was harmless. We will not set
aside a judgment by reason of the erroneous admission of evidence unless, after
examination of the entire record, we conclude the error has resulted in a
miscarriage of justice. (Evid. Code,
§ 353; Cal. Const., art. VI, § 13.)
“A miscarriage of justice occurs only when it is reasonably probable
that the jury would have reached a result more favorable to the [defendant]
absent the error. [Citations.]” (People
v. Dieguez (2001) 89 Cal.App.4th 266, 277-278.)
Here, immediately
before Parker’s testimony identifying defendant as one of the individuals in
the Target store video, the trial court, in ruling on defense counsel’s
objection stated, “It’s opinion evidence, but I don’t want to tell the
jury. It’s like when you show somebody a
picture of your newborn child and you say isn’t she cute, and the other person
has a different opinion. The same thing
here. If he says it’s whoever he says it
is, it’s still up to you to decide. You
don’t have to agree with him, you can disagree.”
The record
reflects that, while the court’s statement is somewhat confusing, it was made
in open court with the jury present.
On
cross-examination, defense counsel asked Parker, “But from this photo alone you
can’t be sure that’s [defendant], can you”
Parker answered, “Well, by the time from this photo alone I
couldn’t--didn’t have anything to compare to.”
Defense counsel countered, “So the answer would be no, with that photo
alone” Parker replied, “Just this photo
alone--I never met [defendant], so I wouldn’t have anything to compare it to
until I saw the D.M.V. photo and the other one.”
Thereafter, the
trial court instructed the jury with CALCRIM No. 333, which informed the jury
it was not required to accept the opinion of witnesses who offered nonexpert or
lay opinions during trial as follows:
“A witness who was
not testifying as an expert gave his opinion during the trial. You may, but are not required to accept that
opinion as true or correct. You may give
the opinion whatever weight you think is appropriate. Consider the extent of the witness’s
opportunity to perceive the matters on which his or her opinion is based, the
reasons the witness gave for any opinion and the facts or information on which
the witness relied in forming that opinion.
You must decide whether information on which the witness relied was true
and accurate. You may disregard all or
any part of an opinion . . . that you find unbelievable and
unreasonable or unsupported by the evidence.”
We presume the
jury understood and followed the court’s instructions. (People v. Gray (2005) 37 Cal.4th
168, 231.) In light of the court’s
admonitions, we conclude the admission of the now disputed evidence was of no
consequence to the verdict. There was no
miscarriage of justice.
II
Substantial
Evidence of False Imprisonment
Defendant also
contends there was insufficient evidence of false imprisonment of two employee
victims who were in the ATM room inside the bank at the time of the
robbery. Through a window with one-way
glass, these employees saw Watts with the gun and called 911. They were both afraid and one lay down on the
floor. They remained in the ATM room
until the robbers left the bank.
Defendant does not
argue that these two employees in the ATM room were free to leave during the
commission of the robbery. Instead, he
argues that Watts did not see those individuals and, therefore, could not have
intended to falsely imprison them. While that may be so, the evidence remains
sufficient to sustain the false imprisonment counts pertaining to those
employees.
Section 236
defines false imprisonment as the “unlawful violation of the personal liberty
of another.” As the criminal offense
includes only a description of the particular act, without any reference to an
intent to do a further act or achieve a further consequence, it is a “general intent”
crime. (People v. Swanson (1983) 142 Cal.App.3d 104, 109.) Thus, to have the requisite intent, it is
sufficient if the defendant intends to commit an act, the natural and
foreseeable consequences of which is the nonconsensual confinement of another. (People
v. Olivencia (1988) 204 Cal.App.3d 1391, 1399-1400.) “‘Intentionally’ is often used as synonymous
with ‘knowingly,’ and when so used an act is intentional if the person who does
it is conscious of what he is doing, and its probable consequences, without
regard to the motive which induced him to act.”
(People v. McCree (1954)
128 Cal.App.2d 196, 202.)
Applied here, the
evidence established that Watts intended to do the proscribed act--an act
having as its probable consequences the nonconsensual confinement of
others--when he waved and pointed his gun and ordered everyone to get on the
ground. It is of no consequence that he
did not actually see all of his victims.
The natural and probable consequences of his act was the confinement of
all individuals present, whether he knew of their presence or not. Moreover, the evidence is sufficient that he
intended everyone who was present to
be confined by his actions.
The evidence is
sufficient to support the judgment.
III
Unstayed Terms
for Assaults and False Imprisonment
Defendant contends
that, under section 654, Watts’s single act of crowd control by ordering
everyone to the ground (false imprisonment), including pointing his gun
directly at three individuals to get them to comply (assaults), cannot be the
basis for imposing multiple, albeit concurrent, sentences. He argues that all of the false imprisonment
and assault sentences must be stayed as those crimes were incidental to the
robbery. The trial court sentenced
defendant correctly.
Subdivision (a) of
section 654 provides in pertinent part that “[a]n 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.”
Generally, section
654 is applicable to “limit punishment for multiple convictions arising out of
either an act or omission or a course of conduct deemed to be indivisible in time,
in those instances wherein the accused entertained a principal objective to
which other objectives, if any, were merely incidental.” (People
v. Beamon (1973) 8 Cal.3d 625, 639, fn. omitted.) However, “[n]otwithstanding [a] determination
that defendant entertained but a single principal objective during an
indivisible course of conduct, he may nevertheless be punished for multiple
convictions if during the course of that conduct he committed crimes of
violence against different victims.
[Citations.] As the purpose of
section 654 ‘is to insure that defendant’s punishment will be commensurate with
his criminal liability,’ when he ‘commits an act of violence with the intent to
harm more than one person or by means likely to cause harm to several persons,’
his greater culpability precludes application of section 654. (Neal v. State of California [(1960)]
55 Cal.2d 11, 20-21.)” (
873, 885, overruling on other grounds recognized in People v. Oates (2004) 32 Cal.4th 1048, 1067,
fn. 8.) “[T]he limitations of
section 654 do not apply to crimes of violence against multiple victims.” (People
v. King (1993) 5 Cal.4th 59, 78.)
Here, the trial
court imposed terms on each of the three robbery counts against the three
separate robbery victims (counts 20, 22 and 25). The court then stayed the assault and false
imprisonment terms on the counts that involved those same three victims (counts
19, 21, 24 and 26). The court also
imposed terms on two assault counts against victims who were not victims of
robbery (counts 2 and 17). It then
stayed the false imprisonment terms for the counts involving those two victims
(counts 3 and 16). The court imposed a
consecutive term on one count of false imprisonment (count 1) and imposed
concurrent terms on the remaining false imprisonment counts (counts 4-15, 18
and 27)--as each of those counts involved victims other than those involved in robbery or assault counts already
imposed.
Accordingly, there
was no error.
Disposition
The judgment is
affirmed.
HULL , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
