P. v. Johnson

Filed 9/10/08 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

William Holland Johnson III was charged with two counts of robbery (Pen. Code,^[1] 211). The first jury trial resulted in a conviction on count 1 of the information. After a second jury trial Johnson was convicted of count 2. Johnson was sentenced to prison on count 1 on March 19, 2007. Johnson was sentenced to a consecutive term on count 2 on May 17, 2007. Johnson filed separate notices of appeal from each sentence. We have consolidated the appeals.

The consolidated appeal challenges only the conviction of count 1. As to that count, Johnson contends the court erred in its response to a jury note. We find the court's response to the jury note to be proper and affirm the conviction.

STATEMENT OF FACTS

This appeal does not challenge the sufficiency or the admissibility of the evidence to support the convictions for two separate robberies. Accordingly, we will set forth a brief summary of the facts in order to provide context for the discussion of the issue raised.

Count 1

At about 6:00 p.m. on May 22, 2006, Jessica Jepsen was accosted by a man she identified as appellant. Ms. Jepsen had just left a restaurant in a shopping center when Johnson ran up to her and demanded her purse. He displayed a handgun and threatened to harm her. Johnson was able to forcibly take Jepsen's purse from her. Once he had the purse, Johnson ran to a white Toyota Camry and left in the car with another man driving. A witness obtained the license number of the Camry, which Jepsen gave to police. Jepsen later identified Johnson as the robber, based on a photographic lineup.

Count 2

At about midnight on May 25, 2006, Xuan Le and her boyfriend left a restaurant. They walked past a white Toyota Camry occupied by two males. After they walked past the Camry, the passenger accosted them, pointed a gun at Le and demanded her purse. The man grabbed the purse and fled in the Camry. Le's boyfriend was able to see the last three digits of the license plate.

Three days later, Le's boyfriend saw the Camry and reported to police he had seen the car and that one of the suspects was in it. Police arrived and found Johnson in the car. The license plate matched that reported to police by Jepsen. The car was registered to Johnson's mother.

Johnson later told police that he had been present when two Asians were robbed, but that he was only the driver of the car.

DISCUSSION

During jury deliberations in the first trial the jurors submitted several notes to the court. Note No. 3 asked, in part: "The jury is requesting clarification from the court on combining evidence from both charges. Do we need to look at both cases separately, or can we use evidence from the 1st count and 2nd count to come to a decision?" The trial court responded, with the approval of all counsel: "As stated in CALCRIM 3515, each of the counts alleges a separate crime. [] You must consider each count separately and return a separate verdict for each, but indoing [sic] so you may consider all of the evidence as you find it relates to each count."

Later, the jurors submitted Note No. 4 which asked: "When considering the counts individually, can we consider all the evidence from both counts? More specifficly [sic] may we use the evidence from count one to consider count two." After lengthy discussions with counsel, and over the objection of defense counsel the court responded that its answer was "yes" to both questions in Note No. 4.

Relying on our opinion in People v. Armstead (2002) 102 Cal.App.4th 784 (Armstead), Johnson contends the trial court's "yes" answers to Note No. 4 changed the nature of the admissibility of the evidence and denied him his rights to confrontation, due process and the effective assistance of counsel. We find the circumstances of the court's comments in this case entirely distinguishable from those this court found improper in Armstead. We find the trial court's answers to the jury were proper and that Johnson's constitutional rights were not violated.

Armstead involved a circumstance where the trial court was called on to answer juror's questions about the jury instruction on the burden of proof and the meaning of the phrase "consideration of all the evidence." The defendant in that case was charged with multiple counts of robbery arising from five different events. The jury note sought advice as to whether the jury should make its decision on each count based solely on the evidence admitted as to each individual count. The trial court in Armstead gave the following answer:

" 'You may consider evidence of the other charged crimes in deciding each count under consideration. In doing so you must treat the other crimes evidence as circumstantial evidence and follow the instructions on circumstantial evidence. 'Other crimes' evidence may not be considered to prove that defendant is a person of bad character or that he has a disposition to commit crimes, but may be considered by you only for the limited purpose of determining if it tends to show identity of the perpetrator, motive, or intent.' " (Armstead, supra, 102 Cal.App.4th at p. 790.)

In Armstead, supra, 102 Cal.App.4th 784, we found the trial court's comments to be improper. We reasoned that the court had changed the nature of the admissibility of the evidence after argument and during deliberations. The trial court's comments in that case changed the evidence admitted as to individual counts into "other crimes" evidence. The testimony had not been admitted for that purpose and counsel had never had the opportunity to challenge the use of such evidence for the newly described purpose. We concluded the court's remarks denied the defendant the basic right of confrontation and the assistance of counsel and reversed the convictions.

This case is distinguishable from Armstead, supra, 102 Cal.App.4th 784. Here the court dealt with two very similar requests from the jury. Both sought advice as to the use of evidence on one count to inform the decision on the other. Johnson did not challenge the court's answer to Note No. 3 and does not challenge it on appeal. In that answer the court advised that the jurors could "consider all of the evidence as you find it relates to each count." The jury's next question was a follow-up of Note No. 3. The new question was more focused. The jury specifically wanted to know again if it could consider all of the evidence for both counts, and whether it could consider evidence of count 1 in its decision regarding count 2. The court's direct, and we think appropriate answer to the two-part note was "yes" as to both parts.

The court's answer did not change the scope of admissibility of any of the evidence. It did not give the jurors a new theory of analysis. Respectfully, the court's answer to Note No. 4 is consistent with Note No. 3. The jury "could consider all of the evidence on each count to the extent it finds it relates to the individual counts." For example, in this case there is a common element to both robberies. In each case the robber was in the same white Toyota Camry. Indeed, Johnson was arrested in the Camry, with the same license number as described in the count 1 evidence and for the car identified by Le's boyfriend in count 2. Le's boyfriend had obtained a partial license number and recognized the car from the second robbery. The car was registered to Johnson's mother. Certainly there was evidence admitted as to individual counts, which also had relevance to both counts.

In the first trial the jury question at issue was whether evidence as to count 1 could be considered as to count 2. The jury did not reach a verdict on count 2 in that trial. We cannot find either error or prejudice on this record based upon the trial court's direct, and accurate answer to Note No. 4.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.