P. v. Mazza















Filed 10/26/12 P. v. Mazza CA1/2

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>NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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 TWO




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THE PEOPLE, Plaintiff and Appellant, v. BRYAN EDWARD MAZZA, Defendant, and Appellant.

A127113 (Contra Costa County Super. Ct. No. 050615260)

Defendant
Bryan Edward Mazza appeals from the trial court’s judgment after a jury trial,
in which he was found guilty on a number of counts related to armed robberies
and/or attempted armed robberies that
occurred in October 2005 in Contra Costa
County. Defendant argues the trial court
prejudicially erred by denying his motion to sever certain counts; that the
prosecutor committed multiple instances of prejudicial misconduct and that he,
defendant, received ineffective assistance of counsel to the extent his trial
counsel did not object; and requests this court review the lower court’s >Pitchess ruling for abuse of
discretion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (>Pitchess)

The
People cross-appeal that the trial court’s dismissal of defendant’s previous
three strike convictions pursuant to Penal Code section 1385href="#_ftn1" name="_ftnref1" title="">[1]
was ineffective for lack of a statement of reasons in the court’s minutes,
requiring that sentencing be reversed and the matter remanded; defendant does
not disagree. The People otherwise argue
we should affirm the judgment.

We
affirm the judgment, except that we reverse the sentence for the reasons argued
by the People and remand for further proceedings consistent with this opinion.

>BACKGROUND

In
December 2006, the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Contra Costa
County District Attorney filed an eight-count information against defendant
regarding four incidents at four retail establishments on October 11, 2005 and October 13, 2005. Count one, regarding Round Table Pizza,
alleged second degree robbery of Kenny Haynes on October 11, 2005 (§§ 211,
212.5), with a personal use of a firearm enhancement allegation (§ 12022.53,
subd. (b)); count two, regarding Peggs Grill, alleged attempted second degree
robbery of Joseph McLaughlin and John Doe (§§ 664, 211, 212.5), with a personal
use of a firearm enhancement allegation (§ 12022.53, subd. (b)); count three
alleged that on October 11, 2005,
defendant was a felon in possession of a firearm (§ 12021, subd. (a)(1)); count
four, regarding Rasputin Records, alleged attempted second degree robbery on October 13, 2005 (§§ 664, 211,
212.5) with a personal use of a firearm enhancement allegation
(§ 12022.53, subd. (b)); counts five and six, regarding Paradise 33,
alleged second degree robberies on October 13, 2005 of Kenny Ly and Van Pham (§
211), with intentional and personal discharge of a firearm enhancement
allegations (§ 12022.53, subds. (b) & (c); count seven, also regarding Paradise
33, alleged attempted murder of Kenny Ly (§§ 664, 187), with an
intentional and personal discharge of a firearm enhancement allegation
(§ 12022.53, subds. (b) & (c)); and count eight alleged that on October 13, 2005, defendant was a
felon in possession of a firearm (§ 12021, subd. (a)(1)).

The
information also contained numerous enhancement and other allegations. It was alleged pursuant to sections 667,
subdivisions (b) through (i) and 1170.12 that defendant had three strike
convictions; pursuant to section 667.5, subdivision (b) that defendant had
suffered prior serious felony convictions for robbery, first degree burglary,
and assault on a peace officer, and that he failed to remain free from prison
custody for a period of five years; pursuant to section 667, subdivision (a)(1)
that defendant was previously convicted of three serious felonies, they being
robbery, first degree burglary, and assault on a peace officer; and pursuant to
section 1203, subdivision (e)(4), that defendant was not eligible for probation
because of eight prior felony convictions in California.

Prior
to trial, defendant filed a series of motions pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. The court granted a hearing regarding two Concord
police officers and an officer from Napa. The court conducted an in camera review of
these officers’ personnel documents for allegations against any of them
concerning the planting or falsifying of physical evidence. It found nothing.

Defendant
also moved to sever count four (regarding Rasputin Records) and counts five
through seven (regarding Paradise 33) from counts one
through three (regarding Round Table Pizza and Peggs Grill). The court denied the motion.

>Evidence
Presented at Trial

>The
Prosecution’s Case

At
trial, which began in February 2009, the prosecution presented evidence
regarding a series of incidents at different locations in Contra
Costa County.

The Round Table Pizza Robbery

Kenny
Haynes, a supervisor at a Round Table Pizza in Concord, California, testified
that a little after 4:00 p.m. on October 11, 2005, a tanned Caucasian man, about
5 feet 11 inches tall, a little muscular in his arms, with long hair out of the
sides and back of his hat, and wearing black-framed dark-tinted sunglasses, a
red 49ers jersey, and a straw hat entered the restaurant and went up to the
counter. When Haynes spoke to him, the
man told Haynes to keep his hands visible, lifted his shirt, and displayed a
black .22-caliber revolver with a brown handle tucked in his waistband. He asked several times, “Do you see this?” The man handed him a white plastic bag and
told him to empty the cash register into it.

Haynes
filled the bag with about $200 to $300 in bills. The robber told him to put in the money from
an adjacent cash register and Haynes did so, adding about $80 in bills and $20
in change to the bag. Haynes gave the
bag to the robber, who thanked him and left.

Haynes
watched the robber drive away in a silver or gray Pontiac,
which Haynes was “pretty sure” was a Grand Am.
He did not see the license plate.
At trial, he identified a photograph of defendant’s car as the same
style, color, make and model as the one driven by the robber.

Concord
Police Officer Summer Galer testified that Haynes gave a description of the
robber to him when Galer arrived on the scene as a man as a Hispanic or a
dark-complected white male, 28 to 34 years old, about 6 feet 2 inches in height
with a buff build, with straight teeth and an unshaven face, wearing a red
49ers jersey.

Two
weeks later, Haynes identified defendant in a photographic lineup as the man
who had robbed him. He described
defendant’s photograph as a “dead-on match,” although the person in the
photograph appeared to have shaved and had shorter hair. Haynes identified defendant as the robber at
the preliminary hearing and at trial, and said defendant’s facial features were
the same, although defendant looked thinner at trial than Haynes
remembered. He was “100 percent” certain
of his identification.

Haynes
was shown a photograph of a black revolver linked to defendant. He said the handle of the gun was not the
same as he saw the robber carry, that the gun was more old-fashioned and
western looking, and definitely was not the gun he had seen.

>The
Peggs Grill Robbery

Joseph McLaughlin’s Testimony

Joseph
McLaughlin testified that he was working at Peggs Grill in Martinez, around
4:00 p.m. or 4:30 p.m. on October 11, 2005 when a dark-skinned, Caucasian man,
possibly of Italian ethnicity, around 5 feet 10 inches tall with a muscular ,
stocky build came in and sat down near the cash register. He wore a zip-up shirt made out of mesh
material, large, police-like sunglasses, and a straw hat that looked something
like the hat shown to McLaughlin at trial, but not the same.

The
man ordered coffee from McLaughlin and paid with a five-dollar bill. When McLaughlin opened the cash register, the
man lifted his shirt and displayed a handgun that was tucked in his waistband,
which McLaughlin thought was a revolver.
The man said, “Give me the fucking money,” and when McLaughlin refused
he demanded the money a second time.
When McLaughlin again did not comply, the man reached for the money in
the register, but McLaughlin slammed the drawer shut. The man threw hot coffee at McLaughlin and ran
out the door. He returned a few moments
later and used a portion of his shirt to wipe the door handle, as if to wipe
off his fingerprints. He then ran
through the parking lot to the road, and McLaughlin lost sight of him.

McLaughlin
described the robber to the police. Two
weeks later, he was shown a photographic lineup. According to the officer who showed him the
lineup, McLaughlin pointed at
defendant’s photograph and said, “That’s him.”
When asked if he was sure, he said, “Yep, that’s him.”

McLaughlin
identified defendant at the preliminary hearing in November 2006. At trial, he testified that he did not
recognize defendant and did not know if he was the same man he had identified
at the preliminary hearing. His memory
was fresher at that hearing and he believed the person he pointed out at that
time was the robber.

Dan Mello’s Testimony

Dan
Mello testified that he and his wife Carolyn Mello had just parked in the
parking lot of Peggs Grill close to the front door when he saw a man walk out
of the restaurant, then return and wipe off the door handle with his shirt. The man was a light-skinned Hispanic, around
5 feet 10 inches tall, probably weighed under 200 pounds, and looked “buffed”
like a weight lifter. He walked across
the street and got into a silver or gray Pontiac Grand Am. Dan could not recall if he wore a hat. He acknowledged that he told a prosecutor a
week before his testimony that the man was wearing a hooded sweatshirt.

Two
weeks later, a Martinez police
officer showed the Mellos a photo lineup.
Dan testified that he was not able to identify any of the photographs as
the man he saw at Peggs because he had not gotten a good look at the man.

Carolyn Mello’s Testimony

Carolyn
Mello testified that the man was dark, with olive skin and looked
Hispanic. She could not remember if he
wore a hat. She acknowledged that when
she was shown the photo lineup, she picked out defendant’s photograph after a
few minutes, but told the officer she was not sure. She identified defendant at trial as the man
she saw, although she said, “I couldn’t swear—if he walked past me on the
street, I wouldn’t recognize him.” She
also said, “I don’t know for sure. It
was a glimpse. It really happened so
fast that day.” Asked what was similar
between defendant and the man she saw, she identified defendant’s facial
coloring and hair as similar to the appearance of the man she saw, but said,
“That’s about it.”

Robert Perry’s Testimony

Robert
Perry testified that he was standing across the street from Peggs Grill around
the time of the robbery when he saw a man around 5 feet 10 inches tall, 28 to
30 years old, with a dark complexion and a semi-muscular build, cross the
street and get into a silver, gray, or light-bluish Pontiac, which might have
been a Grand Prix or a Thunderbird.
According to a testifying officer, Perry said on the day of the incident
that it was a silver or gray Pontiac Grand Am.

>The
Rasputin Records Robbery

Brett Mathews’s Testimony

Brett
Mathews testified that he was standing outside the Rasputin Records store in Pleasant
Hill, on October
13, 2005, in the afternoon.
He saw a silver or gray Pontiac Grand Am parked in a red zone about 18
feet away from him. A man got out of the
car and approached the store’s front door.
As he did so, he pulled a bright or medium blue ski mask over his face
from what appeared to be a darker blue knit regular beanie. He had a handgun in his waistband. The man pushed against the store’s door,
apparently not noticing that it had a sign that said “pull,” and then ran back
to his car.

Mathews
followed the man in his own vehicle as the man drove away. He saw some gray duct tape placed over part
of the license plate, but could see the first digit of the plate was “5.” As he followed the man, Mathews saw a police
officer and flagged him down. Mathews
explained what had happened, told the officer the robber was driving a Pontiac
Grand Am, and the officer drove after the Pontiac. Later that day, according to an officer’s
testimony, Mathews reported that the man was a white male, about 28 years old,
6 feet 2 inches tall, about 210 pounds, wore a bright to medium blue ski mask,
and had a large tribal tattoo design on his right calf.

Twelve
days later, Mathews viewed a photo lineup and identified defendant’s photograph
as the man he saw. He was very certain
of his identification. He particularly
recognized defendant’s high cheekbones and strong jaw line.

At
the preliminary hearing, Mathews identified defendant as the man he saw try to
enter Rasputin Records. He could not
remember the description he gave police, had no memory of the man’s height or
weight, and was not sure about his age and other features. He said the hair of the man he saw was
“lighter than it is now,” and that the man’s hair was relatively short and
straight.

At
trial, Mathews again identified defendant as the man he saw tried to enter
Rasputin Records. He recalled that the
man was a bit taller than his own height, 5 feet 11 inches, was Hispanic or
white male with tanned skin, between 28 and 36 years old, and wore tan or khaki
baggy cargo shorts. He identified a
tattoo on defendant’s left calf as the same one he had seen on the robbery
suspect, and said he was very familiar with tattoos because he had several
friends who were tattoo artists. He also
acknowledged that when he talked to police, he told them he thought the tattoo
was on the robber’s right calf.

Bonnie Jean Logan’s Observations

Pleasant Hill Police Officer
David Garcia testified that he interviewed Bonnie Jean Logan on October 13, 2005. She told him that earlier that afternoon,
while she sat 20 feet from the Rasputin Records store, she saw a white male
approach the doors who was about 25 to 30 years old, thin with a muscular build
and about 6 feet tall. He had a tattoo
of some sort on his left calf measuring four by eight inches. She saw him fidgeting with the right side of
his waistband. At trial Logan
could not recall these details, and acknowledged that she had trouble
remembering because she was an epileptic, took medication for epilepsy, and
used to use a lot of street drugs back when she was hanging out outside the
Rasputin Records store.





>The >Paradise> 33
Robbery

Brothers
Kenny Ly and Trung Howard Ly (Howard) testified about events that occurred at
their Concord, California
restaurant, Paradise 33, in the afternoon of October 13, 2005, the same day as
the Rasputin Records incident. We
summarize their testimony.

Around
3:30 p.m. that day, Kenny was sitting near the cash register when he noticed an
older, silver Pontiac, possibly from the 1980’s, parked in a red zone outside
with a license plate that was scratched so that he could not see the
numbers. He saw a man get out of the
driver’s side door who had light-colored skin and long, wavy, naturally curly
hair that fell almost to his shoulders.
A second man remained in the passenger seat.

Kenny
saw the man pull a brown mask with two-eye holes out of his front pocket and
put it over his head so that it covered his face. The man, wearing jeans and a white t-shirt,
entered the restaurant, pulled a handgun from his pants, and pointed it at
Kenny and the restaurant manager, Van Phan.
He told them, “You stay right there” and “Give me all the money.” Kenny saw a tattoo between the robber’s elbow
and wrist and curly hair coming out from underneath his mask. His gun was black and looked like a police
handgun, but Kenny could not say whether it was a semiautomatic or a
revolver.

Terrified,
Kenny took “some few” hundred dollars in bills from the cash register and
handed them to the man, who took them with his left hand. He testified that he saw the robber’s trigger
finger move and stepped to the side; the gun went off, he felt something touch
the skin on top of his arm, and he heard glass break behind him.

From
the back of the restaurant, Howard noticed a man with a mask covering his whole
head standing 3 to 4 feet in front of Kenny, pointing a silver handgun at
Kenny. The man had a six to seven inch
silver gun in his right hand. His right
forearm had a dark blue tattoo on it. He
wore blue pants, appeared to be Caucasian, and was taller than Howard, who was
5 feet 5 inches or 5 feet 7 inches, but not too big. Howard could not remember the color of the
mask. Defendant displayed his right
forearm to the jury; it was not tattooed.


Howard
took a soup bowl and quietly stepped over to behind the robber. At some point after his brother handed bills
to the robber, Howard hit the robber in the back of the head with the soup
bowl; Howard contradicted himself repeatedly regarding whether the gun went off
before or after he hit the robber in the head with the soup bowl, making it
unclear what exactly occurred. Howard
ran back to the kitchen so as not to be shot.
He never saw the robber’s face.

The
robber stumbled, left the restaurant, and got into the passenger side of the
car. The man waiting in the car drove
off.

Neither
Kenny nor Howard identified defendant at trial, nor had they done so at the
preliminary hearing. Kenny identified a
photograph of defendant’s car as being the same as the getaway vehicle, except
that he did not remember the getaway vehicle having a “wing contraption” on the
trunk as depicted in the photograph shown him.


Kenny
Ly acknowledged that he knew Dan Mello, one of the witnesses regarding the
Peggs Grill robbery, and that the two had talked about the case.

Testimony Regarding Defendant’s
Arrest and the Police Investigation

Napa
Police Officer John Metz testified that in the early morning of October 15,
2005, he was patrolling in a residential area of Napa when he noticed an
unoccupied 2005 silver Pontiac Grand Am parked at the end of a street where
houses were under construction and learned from a check of the license plate
that it was a rental car. He heard the
sounds of someone walking around one of the houses under construction, called
for backup, and began searching the houses.
Inside one of them, Metz found a small fanny pack containing a
dark-colored, six-shot revolver with five live rounds and one expended round, a
box of .22-caliber ammunition, and a pair of clear plastic gloves. A K9 officer and police dog arrived and
investigated. The K9 officer, who
testified at trial, concluded from the dog’s conduct that the fanny pack owner
had touched the Pontiac Grand Am.

Metz,
upon receiving a report around 2:00 a.m.
that a person was walking around the construction site with a flashlight,
returned to the scene. Metz
saw someone come out of one of the houses and go to the Pontiac. As the car went into motion, Metz
shouted, “Police!” and ordered the driver to stop. The driver did not stop until Metz
and another officer pointed their weapons at the car. Defendant was the driver. He twice ignored the officers’ commands to
step out of the vehicle and Metz
forcibly pulled him out of the open driver’s door and forced him on the
ground. Defendant resisted being
handcuffed. He was very fit and
muscular. He allowed the officers to
handcuff him after Metz threatened
to use pepper spray on him.

Metz
searched defendant’s person and found over $3,300 in bills, a pair of pliers,
and a folding knife. He arrested
defendant for being a felon in possession of a knife; defendant falsely stated
he was not on parole.

The
Pontiac Grand Am was searched, with defendant’s permission. Napa
police found a gun holster designed to be concealed in a waistband, with the
bottom tip cut out that would allow for a long-barreled gun to fit, a dark knit
cap with eyeholes cut out, and a blue knitted ski mask. An officer testified that he observed a straw
hat in the car, but did not seize it.
Also, a .22-caliber Remington bullet was found in a pocket of
defendant’s jean jacket, which was also booked into evidence. Concord
police also searched defendant’s car.
They seized a straw hat, a pair of cargo shorts, and two pairs of
sunglasses.

Kenny
Haynes and McLaughlin testified at trial that the straw hat shown to them at
trial was not the same as the one wore by robbers they observed, and Haynes
testified the handgun from the fanny pack was different. The license plate of the Pontiac
was analyzed, and no evidence of adhesive tape residue was found.

The
nurse at the Napa County
jail testified that she assessed defendant on October 15, 2005, after he was taken into custody. She saw he had blood in his hair towards the
back of his head, but he would not allow her to check the area or look more
closely at it.

Defendant’s
former girlfriend, Christine Cronin, testified that when she met defendant in
April 2005, he was very muscular. They
ended their relationship in September 2005, but remained friends. On October
13, 2005, around 5:30 p.m.,
she went with defendant to look at an apartment. When defendant took off the baseball cap he
was wearing, Cronin saw a large gash on the back of his skull. Later, she cleaned the wound with
peroxide. It was fresh and about two to
three inches long. He told her he had an
altercation with some people and one of them had hit him in the head with a
beer bottle, but that they left after defendant displayed a gun; she was not
sure if he said he fired off a round during the altercation. She also testified that the fanny pack found
by police belonged to defendant.

Cronin
next saw defendant at the jail. In their
conversation, which was recorded without her knowledge and played for the jury,
defendant said, “I don’t know. I don’t
think so. I don’t remember anything
about robbing anything.” After Cronin
said, “You can tell me,” he stated, “Maybe, maybe. I can’t say no. I can’t say yes. I don’t even know where, where or what. I know enough to wear gloves. And a mask.”
In response to Cronin saying, “I thought you got rid of the gun before
hand,” defendant stated, “No I was trying, that’s what I was going to do, get
rid of it. But you know what? They found it. They set a trap for me. I escaped from them the first time. And then they just laid in wait for me to
come back to the car.”

Two
masks the prosecution contended were recovered from the Pontiac
were examined by criminalist Rosary Marcelo of the Contra
Costa County
crime lab. She testified that she
swabbed the surface of the two masks and a presumptive test on the swabs
indicated the possible presence of blood.
She opined that blood was likely present on both masks, but she did not
perform a confirmatory test.

Marcelo’s
supervisor, criminalist David Stockwell, also examined the masks and found no
evidence of blood. He stated that the
techniques Marcelo had employed were not done in the proper manner. Stockwell also took DNA samples from the area
of the wearer’s mouth on each mask and compared them to a DNA sample from
defendant. He found 15 out of 15 loci
matched for the first mask and 14 out of 15 for the second. He testified that the chance of such random
matches to a Caucasian was 1 in 49 quadrillion for the first mask and 1 in 1.1
quadrillion for the second; the chance of a Caucasian sibling sharing the same
traits was 1 in 1.4 million for the first mask and 1 in 450,000 for the
second.

A
criminalist with the Contra Costa County Sheriff’s Office testified that he
test-fired the .22-caliber revolver found in the fanny pack and compared the
bullet to one found in the wall of the Paradise 33
restaurant. The Paradise
33 bullet appeared to be a .22-caliber bullet and had a left-handed twist, the
same as the revolver, which twist is used by less than five percent of manufacturers.

Records
of defendant’s cell phone were obtained by search warrant from Verizon
Wireless. A Verizon analyst testified
from the records about particular calls made from defendant’s cell phone and
which cell phone towers carried these calls.
The analyst said that a cell phone call usually goes out through a cell
tower that is closest to the location of the phone by line of sight, but that
when a cell tower has reached its limit, which can occur during peak use times,
the call is relayed to the cell tower next closest to the cell phone.

A
deputy sheriff experienced in cell phone investigations applied the information
obtained from the Verizon records to maps of Contra
Costa County. His testimony indicated that on the afternoon
of October 11, 2005,
defendant placed a call at 3:34 p.m.
via a cell tower that was six to seven miles away from the Round Table Pizza,
and another call at 4:17 p.m. via a
tower that was two and a half to three miles away from the restaurant. Defendant received a call at 4:48 p.m. through a Pinole cell tower. On October 13, 2005, he received a call at
3:02 p.m. via a cell tower that was about a mile away from Rasputin Records
(the incident there occurring at 3:09 p.m.) and close to Paradise 33, made a
3:16 p.m. call via a cell tower on North Main Street in Walnut Creek, and a
4:04 p.m. call via a cell tower adjacent to the Carquinez Bridge in
Vallejo.

Detective
Amy Hunter of the Napa Police Department testified that she attempted to
arrange a live lineup around October
25, 2005, with witnesses from various robberies in the area. Defendant refused to participate.

>The
Defense Case

Defendant’s
former landlord in Napa testified
that he served defendant on September
15, 2005, with a 30 day notice to leave his rental in Napa
so the landlord could sell the property.


Defendant’s
mother testified that defendant visited her regularly and in October 2005 was
moving from a larger to a smaller house in Napa. He brought things to her home to store,
including exercise machines, barbells, and boxes of clothing. Defendant was left-handed. She had never seen him with a gun, and had
never seen the holster and gun involved in the case.

The
owner of Basics Gym in Napa
testified that defendant worked for him in 2005. He paid defendant for his work, but
individual people defendant was training paid him directly. Defendant was starting his own personal
training business.

Cheryl
Risner testified that in 2005 she had a business relationship with defendant,
paying him $350 a week for about three months for his work doing fitness
training with her two sons. She also
invested in his business, paying $4,000 to $7,000 to gym equipment companies,
$1,200 to purchase a trailer to haul the equipment purchase, and $5,000 to
defendant via a check as start-up money.


Defendant
stood before the jury and showed his bare forearms and calves. The only tattoo was on his left calf. Tattoo artist Justine May testified that the
tribal tattoo on defendant’s left calf is very common, both in design and
location.

Public
defender investigator Douglas Hanley researched Pontiac Grand Am models. He opined that Grand Am’s had a similar body
style from 1999 through 2004.

Another
public defender investigator testified that he reviewed defendant’s cell phone
records and determined that no call was placed to Round Table Pizza, Peggs
Grill, Rasputin Records, or the Paradise 33 restaurant,
or received from these establishments.
She tried to reach witness Brett Mathews in order to interview him, but
concluded after various efforts that he was not willing to speak to her.

Napa
County Public Defender James Solga represented defendant regarding other
matters in Napa County
and, as a “side issue,” represented him regarding lineup procedures in the Contra
Costa County
case. He testified that, as indicated in
an email he sent regarding the lineup to either the district attorney’s office
or the police, that he had advised defendant not to participate in a live
lineup there because he believed the lineup procedure was flawed and the form
given to the witnesses included language that was unreasonably suggestive. He also advised defendant that his refusal to
participate could be used against him at a later trial.

Napa
Police Officer Bryan Campagna testified that he assisted in the search of the
Pontiac Grand Am on October 15, 2005. He did not recall seeing a straw hat in the
car, and described the car as cluttered with belongings, as if the owner was
either moving or living out of the car.

A
Concord Police Department expert in forensic evidence compared fingerprints
taken from the Paradise 33 restaurant after the robbery
with known fingerprints of defendant.
There were no matches. He also
wrote upon investigation of the shooting that it was unknown whether it was
deliberate or accidental.

Laura
Woodmansee testified that she cut defendant’s hair. Her telephone number was listed on his cell
phone regarding a call on October 11,
2005, at 4:17 p.m. She did not recall the phone call, but was
sure it was to schedule a haircut appointment because that was the only thing
she spoke with him about.

Defendant’s
parole agent testified that his number was listed as being called by defendant
on October 11, 2005, at 3:16 p.m., but could not remember the specific
call.

A
criminalist from the Contra Costa
County crime lab testified that he
compared 10 fiber pieces from the broken soup bowl involved in the Paradise
33 robbery. He compared the fibers to
those of the two beanie masks recovered from defendant’s car. He concluded that they did not match.

Mary
Riley testified that she met with defendant and a woman named Christine
sometime in the afternoon of October 12 or 13, 2005, to show defendant a rental
unit. She recalled that defendant
dressed well, was enthusiastic, was in good shape, and did not have any blood
on him; she could not recall if he wore a hat.


>Verdict
and Sentence

The
jury found defendant guilty of all charges, except it found him not guilty of
attempted murder as alleged in count seven, regarding the Paradise
33 robbery.

Defendant
moved for a new trial on counts five and six, regarding Paradise
33. The trial court granted the motion
on the grounds that the verdicts were contrary to the evidence. The court later dismissed these counts on the
People’s motion.

The
trial court found the allegations of defendant’s prior felony convictions were
true. It ordered stricken his prior
strike convictions in the furtherance of justice, but maintained them as prior
serious felony enhancements pursuant to section 667, subdivision (a)(1). The court sentenced defendant to a total term
of 35 years and 8 months. The court
ordered this sentence to run concurrently to a sentence imposed in a Napa
County case.

The
People filed a timely notice of appeal
from the trial court’s order striking defendant’s three prior strike
convictions in the furtherance of justice.
Defendant filed a timely notice of appeal from the judgment.

>DISCUSSION

>I. >The Motion to Sever

Defendant
argues that the trial court abused its discretion in denying his motion to
sever under the criteria set out in People
v. Vines (2011) 51 Cal.4th 830, 854-855 (Vines). Furthermore, he
contends, even if the court’s denial was not an abuse of discretion, the trial
of the four incidents together nonetheless substantially prejudiced defendant
and denied him due process and a fair trial.
We disagree.

A. The Proceedings Below

Before
trial, defendant moved to sever count four (regarding Rasputin Records) and
counts five through seven (regarding Paradise 33) from
counts one through three (regarding Round Table Pizza and Peggs Grill). In other words, he sought to have the
incidents alleged to have occurred on October
11, 2005 tried separately from the incidents alleged to have
occurred two days later, on October 13.
Defendant contended that the joinder of these counts was improper
pursuant to section 954 and that severance was required to protect his due process
rights. Defendant pointed out in his
papers that the preliminary hearing magistrate had not held defendant to answer
for the two counts in the original complaint regarding the Paradise
33 incident, but that the prosecution had still charged him with counts five
through seven regarding that incident.
Defendant conceded that all of the offenses alleged in the information
were of the same class or were related offenses connected together in their
commission and, therefore, were permissibly joined pursuant to section
954. Nonetheless, he argues, evidence of
each set of offenses would be inadmissible in the trial of the other offenses,
and their joinder would prejudice him without resulting in any substantial
judicial economy.

The
prosecution opposed the motion. The
trial court denied it It subsequently
also denied defendant’s proposed jury instruction, which was as follows:

“You
may not consider evidence presented by the prosecution . . . that the defendant
committed an offense regarding one incident to prove that he committed a crime
involving a separate incident. For
example, any facts presented that the defendant committed a crime involving
Roundtable Pizza, may not be considered as evidence to prove whether he
committed a crime involving Paradise 33.”

The
court instructed the jury pursuant to CALCRIM No. 3515 that “[e]ach of he
counts charged in this case is a separate crime. You must consider each count separately and
return a separate verdict for each one.”


B. Relevant Legal Standards

Defendant
concedes that the relevant crimes charges were assaultive crimes of the same
class—assaultive crimes against the person—and thus satisfied the statutory
requirement for joinder. (>People v. Poggi (1988) 45 Cal.3d 306,
314, 320; People v. Thomas (1990) 219
Cal.App.3d 134, 140.)

Nevertheless,
defendant argues the trial court should have exercised its discretionary
authority pursuant to section 954 to grant his motion to sever. Section 954 provides in relevant part:

“An
accusatory pleading may charge two or more different offenses connected
together in their commission, or different statements of the same offense or
two or more different offenses of the same class of crimes or offenses, under
separate counts . . . .
The prosecution is not required to elect between the different offenses or
counts set forth in the accusatory pleading, but the defendant may be convicted
of any number of the offenses charged, and each offense of which the defendant
is convicted must be stated in the verdict or the finding of the court;
provided, that the court in which a case is triable, in the interests of
justice and for good cause shown, may in its discretion order that the
different offenses or counts set forth in the accusatory pleading be tried
separately or divided into two or more groups and each of said groups tried
separately.” (§ 954.)

As
the People point out, for reasons of judicial efficiency, “joint trial has long
been prescribed—and broadly allowed—by the Legislature’s enactment of section
954. The purpose underlying this statute
is clear: joint trial ‘ordinarily avoids
the increased expenditure of funds and judicial resources which may result if
the charges were to be tried in two or more separate trials.’ [Citation.]
‘A unitary trial requires a single courtroom, judge, and court attach[és]. Only one group of jurors need serve, and the
expenditure of time for jury voir dire and trial is greatly reduced over that
required were the cases separately tried.
In addition, the public is served by the reduced delay on disposition of
criminal charges both in trial and through the appellate process.’ ” (People
v. Soper (2009) 45 Cal.4th 759, 771-772 (Soper).) Accordingly,
“consolidation or joinder of charged offenses ‘is the course of action
preferred by the law.’ ” (>Id. at p. 772.)

The
party seeking severance bears the burden “ ‘ “ ‘ “to clearly establish that
there is a substantial danger of prejudice requiring that the charges be
separately tried.” ’ ” ’ ”
(Vines, supra, 51 Cal.4th at p. 855.)
The court is to consider the following criteria: “ ‘ “ ‘Refusal to sever may be
an abuse of discretion where: (1)
evidence on the crimes to be jointly tried would not be cross-admissible in
separate trials; (2) certain of the charges are unusually likely to inflame the
jury against the defendant; (3) a “weak” case has been joined with a “strong”
case, or with another “weak” case, so that the “spillover” effect of aggregate
evidence on several charges might well alter the outcome of some or all of the
charges; and (4) any one of the charges carries the death penalty or joinder of
them turns the matter into a capital case.’ ” ’ ” (Ibid.)

“If
the evidence underlying the charges in question would be cross-admissible, that
factor alone is normally sufficient to dispel any suggestion of prejudice and
to justify a trial court’s refusal to sever properly joined charges.” (Soper,
supra, 45 Cal.4th at pp.
774-775.) However, the lack of
cross-admissibility “would not itself establish prejudice or an abuse of
discretion by the trial court in declining to sever properly joined
charges.” (Id. at p. 775.) Section
954.1 states that “[i]n cases in which two or more different offenses of the
same class of crimes or offenses have been charged together in the same
accusatory pleading . . . evidence concerning one offense or offenses need not
be admissible as to the other offense or offenses before the jointly charged
offenses may be tried together before the same trier of fact.” (§ 954.1.)
As defendant acknowledges, section 954.1 “prohibits the courts from
refusing joinder strictly on the basis of a lack of cross-admissibility of
evidence.” (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1285.)

“If
we determine that evidence underlying properly joined charges would not
be cross-admissible, we proceed to consider ‘whether the benefits of joinder
were sufficiently substantial to outweigh the possible “spill-over” effect of
the “other-crimes” evidence on the jury in its consideration of the evidence of
defendant’s guilt of each set of offenses.’ ”
(Soper, supra, 45 Cal.4th at p.
775.) In making that assessment, we
essentially consider the remaining three criteria outlined in >Vines.
(Soper, at p. 775.)

“We then balance the potential for
prejudice to the defendant from a joint trial against the countervailing benefits
to the state.” (Ibid.)

C. The Court’s Exercise of Discretion to Deny
the Motion

Defendant
argues that the evidence regarding the two sets of offenses that he sought to
sever were not cross-admissible, and that the motion to sever should have been
granted pursuant to the other criteria outlined in Vines. We conclude from our
review of the record that whether or not the evidence was cross-admissible, the
court did not abuse its discretion and, therefore, do not decide the
cross-admissibility issue. Instead, we
focus our discussion on whether, as defendant further argues, the evidence in
certain incidents was so inflammatory, and the relative strength of different
charges so varied, as to create a potential for prejudice to defendant that
outweighed the countervailing benefits to the prosecution. We conclude that neither was the case.

As
we have discussed, the benefits of joinder are substantial because of the
benefits of efficiency and the conservation of resources. Defendant bears the burden of showing that
these benefits were substantially outweighed by the potential for
prejudice. Defendant argues they were
for two reasons. First, defendant
contends the Paradise 33 attempted robbery was particularly inflammatory
because the incident involved “the perpetrator pointing a gun and actually
firing the gun at employees of the restaurant, a level of violence that was
more likely to inflame the passions of the jury when compared to the
circumstances of the other three incidents.”
He points out that in the Round Table Pizza and Peggs Grill incidents,
the testimony indicated that the gun did not leave the robber’s waistband. In the Rasputin Records incident, the gun
remained in the robber’s hand and there was no evidence the robber pointed it
at anyone or fired it. Thus, defendant
concludes, “[w]hen compared with the other counts, the evidence of the Paradise
33 counts—especially the attempted murder of count seven—were unduly likely to
inflame the jury, who could only see such acts of violence and firing the gun
as beyond the pale.”

The
People disagree. They contend the
incident was not particularly inflammatory because the robber was armed with a
handgun in all four robberies and, as reflected by the felony murder rule,
armed robbery is fraught with peril. The
People point out that there “is a significant risk that the gun will discharge,
either intentionally or accidentally, during a volatile armed confrontation
between a robber and a victim. Given
that this risk was present in all of the charged robberies, it was not
reasonably likely that the jury would have been unduly inflamed by the Paradise
33 robbery, particularly when the victims of that robbery were not physically
injured.”

We
agree with the People. We fail to see
how the facts of the Paradise 33 robbery, in which the robber pointed a gun at
employees and may have fired it, would unduly inflame the jury in light of the
testimony regarding the incidents defendant sought to have severed.href="#_ftn2" name="_ftnref2" title="">[2] Defendant’s argument ignores that in the
Round Table Pizza and Peggs’ Grill incident, the testimony was that the robber
lifted his shirt to reveal a gun and pointed it out to his victim. In context, the threat was clear: do as I say or I will shoot you. We do not see so great a difference between
the nature of this threat—and its impact on a jury’s sensibilities—and the
evidence regarding the Rasputin Records and Paradise 33
incidents so as to find error. The court
did not abuse its discretion in rejecting defendant’s argument that the Paradise
33 incident was unduly inflammatory.

Defendant
further argues that the cases should have been severed because the facts of the
Rasputin Records incident were stronger than those of either the Round Table
Pizza or Peggs Grill incidents.
Defendant contends this was because Brett Mathews testified at the
preliminary hearing that he saw the robber get out of a silver Pontiac Grand Am
holding a gun, looked directly at the robber’s face before he pulled a beanie
mask over it, and saw a tattoo on the robber’s calf. However, the witnesses of the Round Table
Pizza and Peggs Grill incidents each did not get a direct look at the robber,
who disguised his face with large sunglasses and a large hat, and the gun
remained in the robber’s waistband.

Defendant
further argues that because the Rasputin Records incident occurred shortly
before the Paradise 33 incident, jurors could have believed he committed the
latter incident as well, although the evidence was purportedly weaker, since
the Paradise 33 witnesses did not identify defendant as the robber at the
preliminary hearing, said the robber had a tattoo on his arm, which defendant
does not, and said there was another person in the robber’s car.

The
People disagree. They correctly point
out that Kenny Haynes, the victim of the Round Table Pizza robbery, and Joseph
McLaughlin, the victim of the Peggs Grill robbery, each identified defendant at
the preliminary hearing as the
robber. Regarding the Paradise
33 robbery, they contend there was, among other things, significant evidence
tying defendant to that robbery. That
is, Howard testified that he hit the robber in the back of the head with a
bowl. Defendant’s former girlfriend told
police that she noticed a large cut on the back of defendant’s head later that
same day. Furthermore, the gun recovered
at the time of defendant’s arrest had an expended casing in the chamber.

We
agree with the People’s assessment. As
they point out, “as between any two charges, it always is possible to point to
individual aspects of one case and argue that one is stronger than the
other. A mere imbalance in the evidence,
however, will not indicate a risk of prejudicial ‘spillover effect,’ militating
against the benefits of joinder and warranting severance of properly joined
counts.” (Soper, supra, 45 Cal.4th
at p. 781.) Defendant’s contentions do
not establish such an imbalance of strength in the evidence regarding the
incidents so as to persuade us that the trial court abused its discretion in denying
his motion to sever.

D. Due Process

Defendant
also argues that, even if the trial court did not abuse its discretion, he was
nonetheless denied a fair trial. Again,
we disagree.

“
‘[E]ven if a trial court’s ruling on a motion to sever is correct at the time
it was made, a reviewing court still must determine whether, in the end, the
joinder of counts . . . for trial resulted in gross unfairness
depriving the defendant of due process of law.’ ” (Soper,
supra, 45 Cal.4th at p. 783.) To make this determination, we look at the
evidence actually introduced at trial. (>People v. Bean (1988) 46 Cal.3d 919,
940.) “[D]efendant must demonstrate a
reasonable probability that the joinder affected the jury’s verdicts.” (People
v. Grant (2003) 113 Cal.App.4th 579, 588 (Grant), citing Bean, at
pp. 938-940.)

Defendant
makes several arguments why denial of his motion to sever resulted in gross
unfairness, thereby depriving him of due process. Relying primarily on Grant, defendant contends that gross unfairness occurred because
the evidence of the four incidents was not cross-admissible on the issue of
identity, the prosecutor argued this impermissible inference in closing, the
trial court denied his request to instruct the jury that the evidence was not
cross-admissible, and evidence of defendant’s identity as the robber of
Paradise 33 was particularly weak.

The
People, relying heavily on Soper,
respond that the evidence was cross-admissible and, even assuming for the sake
of argument that it was not, the prosecutor’s inferences about the evidence and
the trial court’s refusal to instruct the jury that the evidence was not
cross-admissible, “standing alone . . . does not establish gross unfairness
depriving defendant of due process.” (>Soper, supra, 45 Cal.4th at pp. 783-784.)

We
agree with the People, and conclude the facts and circumstances of this case
are analogous to those considered by our Supreme Court in Soper, in which the court rejected a similar due process
argument. As in that case, various
factors lead us to conclude that defendant has not met his high burden of
establishing that the trial was grossly unfair and that he was denied due
process of law.

First,
as did the Soper court, we assume for
the sake of argument that the evidence at issue was not cross-admissible on the
issue of identity and consider that the jury was not instructed as requested by
the defense. (Soper, supra, 45 Cal.4th
at p. 783.) However, this is only a
factor in our assessment; “standing alone the absence of such a limiting
instruction does not establish gross unfairness depriving defendant of due
process.” (Ibid.)

Furthermore,
“[a]ppellate courts have found ‘ “no prejudicial effect from joinder when the
evidence of each crime is simple and distinct, even though such evidence might
not have been admissible in separate trials.” ’ ” (Soper,
supra, 45 Cal.4th at p. 784.) Here, we agree with the People that the
evidence supporting the Round Table Pizza, Peggs Grill, and Rasputin Records
crimes were “relatively straightforward and distinct” and that “the evidence
related to each charge was independently ample to support defendant’s
conviction” of each of these crimes. (>Ibid.)


Defendant
contends that the evidence that he committed the Rasputin Records attempted
robbery was much stronger than the evidence regarding the Round Table Pizza and
Peggs Grill incidents, and that these latter two incidents were similar. We disagree.
As our review of the trial evidence indicates, the evidence for these
latter two incidents was distinct, straightforward, had considerable strength,
and was not effectively disputed by the defense.

Most
notably, Haynes, the Round Table Pizza victim, gave consistent, detailed
descriptions of the robber over time, saw him drive away in what he thought was
a gray or silver Pontiac Grand Am, and readily identified defendant from a
photographic lineup, describing the photo as a “dead-on match.” Haynes identified defendant at the
preliminary hearing and at the trial, and stated he was “100 percent” certain
of his identification.

McLaughlin,
the Peggs Grill victim, also gave a detailed description of the robber who
confronted him. He identified
defendant’s photograph without qualification when shown a photographic lineup
by police, and identified defendant as the robber at the 2006 preliminary
hearing. While at the 2009 trial he said
he did not recognize defendant and did not know if he was the same man he
identified at the preliminary hearing, he also testified that he believed he
identified the robber at the preliminary hearing. In addition, Dan and Carolyn Mello saw the
robber leaving Peggs Grill. Dan
testified that, although he did not get a good look at the man, he saw him get
into a silver or gray Pontiac Grand Am.
Carolyn, although she was not sure, identified defendant as the robber
in a photographic lineup and at trial.

Furthermore,
the trial court instructed the jury that “[e]ach of the counts charged in this
case is a separate crime. You must
consider each count separately and return a separate verdict for each
one.” We agree with the People that this
instruction “mitigated the risk of any prejudicial spillover. . . .” (Soper,
supra, 45 Cal.4th at p. 784.)

We
also agree with the People that any conceivable prejudice regarding the Paradise
33 counts was remedied by the jury’s acquittal of defendant on the attempted
murder charge and the court’s grant of a new trial on the robbery and attempted
robbery convictions related to the Paradise 33
incident. Defendant argues that this did
not alleviate the potential prejudice caused by the inflammatory nature of the Paradise
33 evidence, given the weakness of that evidence against defendant. As we have discussed,

however, there was ample evidence
against defendant regarding the other three incidents, and the Paradise
33 evidence was not particularly inflammatory in light of defendant’s display
of a gun and use of it in a threatening fashion in all four incidents.

Finally,
defendant points to several statements by the prosecutor in closing argument
that he contends were prejudicial. Defendant cites to the
following: the prosecutor called the
incidents a “robbery spree”; argued that “all of the evidence, all of the
pieces that have come before you here are interconnected”; contended that
defendant used a gun in a menacing manner at Round Table Pizza in “exactly the
same menacing manner he used it at Peggs”; referred to the consistent
descriptions of the perpetrator provided by the witnesses in all four incidents
and talked about how they all narrowed to point to defendant; and said that the
incidents corroborated each other by the fact that the witnesses identified
defendant. We disagree that,
given the record as a whole, these statements had a prejudicial impact on the
jury’s deliberations.

Grant, relied on heavily by
defendant, is not persuasive
authority because it involved facts and circumstances significantly different
from those of the present case. The
evidence of one of the counts reviewed by the court was particularly weak; the
prosecutor directly urged the jury to draw the impermissible inference that,
because defendant committed one count, for which there was much stronger
evidence, he committed the other, for which the evidence was weaker and largely
circumstantial; and, although the trial court appears to have given a jury
instruction similar to the ameliorative one given in the present case, the
court also made a statement to the jury suggesting it could use the evidence as
it saw fit. (Grant, supra, 113
Cal.App.4th at pp. 588, 589-590, 591-592, 592, fn. 8.)

In
short, considering the record as a whole, defendant has not shown there is a
“reasonable probability that the joinder affected the jury’s verdicts” (>Grant, supra, 113 Cal.App.4th at p. 588) and “has not met his high burden
of establishing that the trial court was grossly unfair and that he was denied
due process of law.” (>Soper, supra, 45 Cal.4th at p. 783.)



II. Defendant’s
Claims of Prosecutorial Misconduct

Defendant
next argues that the prosecutor committed multiple instances of misconduct that
violated defendant’s constitutional rights to due process and a fair trial,
requiring reversal of the judgment.
Again, we disagree.

A. Applicable Legal Standards

“We
review claims of prosecutorial misconduct pursuant to a settled standard. ‘Under California
law, a prosecutor commits reversible misconduct if he or she makes use of
“deceptive or reprehensible methods” when attempting to persuade either the
trial court or the jury, and it is reasonably probable that without such misconduct,
an outcome more favorable to the defendant would have resulted. [Citation.]
Under the federal Constitution, conduct by a prosecutor that does not
result in the denial of the defendant’s specific constitutional rights—such as
a comment upon the defendant’s invocation of the right to remain silent—but is
otherwise worthy of condemnation, is not a constitutional violation unless the
challenged action “ ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’ ” ’ [Citations.]
In addition, ‘ “a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.
[Citation.]” ’ [Citation.] Objection may be excused if it would have
been futile or an admonition would not have cured the harm.” (People
v. Dykes (2009) 46 Cal.4th 731, 760 (Dykes).) “Additionally,
when the claim focuses upon comments made by the prosecutor before the jury,
the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) We review claims of prosecutorial misconduct
under the state and federal standards for prejudice. (People
v. Booker (2011) 51 Cal.4th 141, 186, citing People v. Watson (1956) 46 Cal.2d 818, 836 [state standard] and >Chapman v. California (1967) 386 U.S.
18, 24 [federal standard].)





>B. >The Prosecutor’s Use of a Cat Puzzle

Defendant
first argues that the prosecutor committed misconduct at the beginning of his
rebuttal argument by using a “cat puzzle” to illustrate how the jury should
approach the evidence. Defendant’s
argument is unpersuasive.

>1. >The Prosecutor’s Cat Puzzle Argument

a. Prosecutor’s
Use of the Puzzle at the Beginning of Rebuttal

The
prosecutor first displayed that part of the puzzle that was a portion of a
cat’s tail to the jury. His comments
indicated it was impossible to tell what the piece was, joking that it might be
the “Loch Ness monster.” He said, “If I
asked the 12 of you to go back in the deliberation room right now, right now
and render a verdict on what this is, it would be easy. You would have to vote not guilty because we
don’t know what we are looking at, so let’s put it aside for a second.”

The
prosecutor then displayed a portion of the puzzle that showed cat ears and
suggested that, while it might give the jury some ideas, it was the “[s]ame
deal. I send you back in the jury room,
the 12 of you are going to have a great laugh and throw your hands up and go I
don’t know what that is.”

The
prosecutor next displayed the portion of the puzzle that showed two legs. He indicated that the jurors might now have
some idea what the puzzle depicted, such as a “really fat squirrel” or “a
child’s skinny boot,” but that it would still be difficult to deliberate about
it.

The
prosecutor placed another portion of the puzzle that showed an additional two
legs. Again, he stated that the jury
still did not have enough information to render a verdict about what the puzzle
depicted.

Next,
the prosecutor displayed a portion of the puzzle showing the body of a
cat. He said, “Now I think we are
getting somewhere. You sort of recognize
what we might be looking at here. But it
could be a stuffed animal or even a fur coat . . . . Still can’t makeup [sic] your mind based on this one piece, but you know what you can
do? You can take the pieces and put them
together.

As
the prosecutor presented each portion of the puzzle, he used magnets to attach
them to a board before displaying the next piece. Next, the prosecutor displayed the full image
of a cat. He stated:

“Now,
this would have been a heck of a lot easier if I just stood up and showed you
this picture. All right? That’s a picture of a cat. That’s easy.
All right. Mr. Feinberg
[prosecutor], what [does] a cat have to do with a criminal jury trial?

“When
you do a jury trial, you don’t have just one big aha moment where I lift up the
board and say here is all the evidence on this one board, go. The evidence is presented to you in pieces
because there is only one witness chair there.
There is only one space for one person, one at a time. One piece of physical evidence at a
time. One piece of testimony at a
time. One ruling at a time. Ms. Barker [defense counsel] wants you to
take the cat apart and look at each piece individually and start throwing it
out the window. She wants you to do that
under the guise of the circumstantial evidence instructions. Now, she is correct, actually correct, about
what to do if there are two reasonable interpretations. But you don’t do that in a vacuum one piece
of evidence at a time. I’m not asking
you to render a verdict based on this, the Loch Ness monster.”

Defense
counsel objected that the prosecutor was misstating the jury instruction, but
the court overruled the objection. The
prosecutor then stated:

“I’m
asking you, ladies and gentlemen, to consider all the evidence that has been
presented to you and put all the evidence together when looking at it. Yeah, sure.
He could maybe sort of possibly have a reasonable explanation for where
that cash came from. That was Item No.
1. You must just disregard the cash
because there could be a reasonable explanation. Forget for a moment that we don’t know when
he came into possession of any of that legitimate source of money. Set that aside for a second. She [defense counsel] wants you to say, look,
people have money for legitimate reasons.
Throw the tail out. Don’t throw
the tail out, you don’t know what the tail has to do with anything yet.

“Same
for his refusal in the lineup. That was
Item No. 2. We don’t know what it could
mean. It could mean a lot of different
thi