P. v. Packer

Filed 9/26/07 P. v. Packer CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant Celeste Packer of second degree robbery. (Pen. Code, 211, 212.5, subd. (c).)^[1] The trial court found true allegations that defendant was a second-strike offender (id., 667, subds. (b)-(i), 1170.12) and had a prior serious felony conviction (id.,  667, subd. (a)) and three prior convictions for which he had served prison terms (id.,  667.5, subd. (b)). Citing section 1385, the court struck or stayed (the record is conflicting) one of the prison priors and sentenced defendant to 13 years in prison.

On appeal, defendant contends that there was insufficient evidence to convict him of robbery, that the trial court abused its discretion in excluding certain testimony, that it abused its discretion in denying his mistrial motion, that the cumulative effects of its rulings on the evidentiary and mistrial issues violated his due process rights, and that it abused its discretion in denying his new trial motion.

We will affirm the judgment.

FACTS

Defendant was prosecuted on the theory that he drove the getaway car used in the robbery of a San Jose liquor store.

I. Prosecution Case

On the night of March 24, 2005, a short-statured African-American man wearing a black ski mask, black gloves, and black clothing robbed the Liquor Bin of about $500 in cash at gunpoint. He demanded cash from Sy Nguyen, who was working behind the counter. Nguyen handed the robber the cash drawer and the robber fled out the door and began jogging down the street, with the store owner, Linh Nguyen, in pursuit. Sy Nguyen ran outside as well. The robber stumbled and dropped the cash drawer, at which point Linh Nguyen started attacking him with a garbage can lid. The robber frantically collected money from the tray, accelerated to an all-out run with Linh Nguyen running after him at nearly full speed, and jumped into the back seat of a waiting automobile parked down the street from the store. The robber was still wearing his ski mask and gloves. The automobile departed at high speed, accelerating with a screech according to one witness. Its headlights were off as it sped away. Defendant was the automobile driver and the woman to whom he was then engaged, Monique Pacheco (now Monique Packer, but because she was not married to defendant at the time of her testimony, we will refer to her as Monique Pacheco), was in the passenger seat.

One of the witnesses to these events, Paul Decker, a Liquor Bin customer who was inspecting lottery tickets when the robber entered and announced the robbery, had seen defendant standing alongside the drivers door of a car, which was parked under a lamppost, just before the robbery. Decker saw defendant in the same position as the robber ran toward the automobile.

A police officer pulled the automobile over about a half-hour later and the robber, a muscular, tattooed, and shirtless African-American male, fled from the back seat, leaving behind the black gloves, replica firearm, and ski mask he had used to commit the robbery, along with a black sweatshirt consistent with witnesses descriptions of the clothing the robber wore. Before the robber fled, the officer perceived that the robber had handed objects to Pacheco in the front passenger seat and that she had tucked them away. The items used to commit the robbery were found either under the front passenger seat or wedged between that seat and the car door.

Defendant told the police he barely knew the robber and had no way to contact him, although defendant gave the police a name, Gerald Washington. The police were unable to locate anyone named Gerald or Jerald Washington and whose description resembled that of the robber.

The police never apprehended anyone for the robbery, although the next day they questioned Eddie Curry, a short, muscular and tattooed African-American male with a prior robbery conviction, after seeing him emerge from defendants house, which they were keeping under surveillance. They released Curry because they lacked probable cause to connect him with the robbery.

II. Defense Case

Monique Pacheco testified that she and defendant were at home when he received a phone call and wrote something on a piece of paper. The two got into her automobile and defendant parked it in the area of the Liquor Bin. Defendant waited outside the drivers door, reaching in to honk the horn twice. About five minutes later Pacheco heard a bunch of commotion, turned to look, and saw a man in black clothing running toward them. He was not wearing a mask or gloves and had nothing in his hands. No weapon was visible on him. He was being chased by two individuals who were yelling and screaming. The man quickly got into the back seat. One or both individuals chasing him pelted the automobile with dirt or rocks. Defendant got into the automobile and drove away at a normal speed. The automobile headlights are programmed to activate automatically. When the police pulled the automobile over, the man in the back seat did not hand anything to Pacheco to conceal. He ran away.

DISCUSSION

I. Sufficiency of the Evidence

Defendant argues that the evidence of his guilt of second degree robbery is insufficient to support his conviction. He relies in part on the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. He also relies on state decisional law, namely a Court of Appeal decision. We will discuss each body of law in turn.

Under the federal Constitutions due process clause, there is sufficient evidence to support defendants conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) This test does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Id. at pp. 318-319.) [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The court does not, however, limit its review to the evidence favorable to the respondent. . . . [O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record i.e., the entire picture of the defendant put before the juryand may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to some evidence supporting the finding, for Not every surface conflict of evidence remains substantial in the light of other facts.   (Id. at p. 577.)

An accomplice is, of course, a principal to a crime. ( 31.)  A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citation.]  (In re Malcolm M. (2007) 147 Cal.App.4th 157, 165.) The jury was instructed in this language.

Defendants claim is without merit. The trier of fact heard evidence that defendant received a phone call and thereafter loitered on a street near the Liquor Bin for no apparent purpose, the Liquor Bin was robbed, defendant permitted a masked man to enter Pachecos automobile and drove him away even though he purported to hardly know him, the man was running at full tilt, two angry men were pursuing the man and pelted the car with objects, the man was wearing a ski mask, the man was wearing gloves that could prevent the leaving of fingerprints, and the man left these articles in the car and ran when a police officer stopped the car defendant was driving. Considering that evidence, a rational trier of fact could find defendant guilty of robbery as an accomplice. There was no due process violation.

Defendant also relies on the state decisional law contained in People v. Hill (1946) 77 Cal.App.2d 287. The quantum of proof in Hill, however, was much lower than that presented in this case. In Hill, the reviewing court found insufficient evidence that an individual convicted as the driver of a getaway car aided and abetted a robbery. There was only slight inculpatory direct evidence (a police officer perceived that the defendant was trying to hide a gun from him) and strong exculpatory direct evidence (including the defendants testimony denying knowledge there was a gun in the car). The distinction between this case and Hill is similar to the distinction arrived at in People v. Rosenberg (1959) 170 Cal.App.2d 600: Appellant relies upon the case of People v. Hill,[supra,] 77 Cal.App.2d 287, wherein the conviction of the driver of a getaway vehicle was reversed. The cited case is easily distinguishable from the one now engaging our attention. In the Hill case there was no showing that the accused had any previous knowledge of the intent of his companions[;] in fact they exculpated him entirely by their testimony that he knew nothing of their intention to commit a robbery. The police officers testimony disclosed only that the appellant had driven his companions to the location of the crime and drove them away when they returned to the automobile.^[[2]] There was evidence that appellant went to sleep while the others perpetrated the robbery. And[] appellant made no admissions . . . . When the evidentiary features of the Hill case are compared with those present in the case now before us, the factual distinctions are at once apparent. As pointed out by respondent, Appellant (herein) drove to the scene and acted suspiciously. He made no comment when his partner suddenly ran from a house with a suitcase and package. Then he drove him to a downtown pawnshop and admitted that he split the loot and pawned it. He admitted he was connected with the burglary by clear implication from his statements to the police. We are persuaded that these circumstances[,] coupled with the statements made by appellant to the police[,] furnish a sufficient basis to support the finding of guilt [citations]. (Id. at pp. 605-606.) Not every inculpatory factor listed in Rosenberg exists here, but the strength of the prosecutions case is, as it was in Rosenberg, much stronger than it was in Hill. By reasoning similar to that of Rosenberg, we find unavailing defendants effort to compare his case to Hill.

II. Excluding Pachecos Proffered Testimony

Defendant claims that the trial court abused its discretion in ruling that proffered testimony by Monique Pacheco that defendant told Pacheco that the person he later identified as Gerald Washington had told him he was stranded and needed a ride would be either irrelevant or hearsay, and hence was inadmissible. We find no abuse of discretion.

Defendant also claims that the courts ruling denied him his constitutional right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution. He further claims that the courts ruling denied him the right to present a defense under the Sixth Amendment of the federal Constitution (see Michigan v. Lucas (1991) 500 U.S. 145, 149).

We note at the outset that by failing to invoke the Sixth Amendment at trial, defendant has forfeited that claim. (See People v. Ledesma (2006) 39 Cal.4th 641, 729 [Sixth Amendment right to jury trial claim forfeited when not timely raised at trial]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [same result for Sixth Amendment confrontation clause claim not timely raised at trial].) If defendant did invoke the Sixth Amendment, he has not provided a citation to the record, and because an  appellate court is not required to search the record on its own seeking error  (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246), nor did we find on our own review of the record a Sixth Amendment claim of denial of the right to present a defense, we will not entertain defendants claim.

By contrast, defendants due process claim, which he raises on appeal as an additional legal consequence of the courts purportedly erroneous ruling, is not forfeited. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5; see id. at pp. 997, 1000, 1024, 1029, 1031, 1055.) In such a case, however, rejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none. (Id. at p. 990, fn. 5.)

With regard to relevance: Only relevant evidence is admissible (Evid. Code, 210, 350), and all relevant evidence is admissible unless excluded under the federal or state Constitutions or by statute. [Citations.] The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citation.] The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. [Citation.] We review for abuse of discretion a trial courts rulings on the admissibility of evidence. (People v. Benavides (2005) 35 Cal.4th 69, 90.)

With regard to hearsay: An inquiry about an out-of-court statement calls for inadmissible hearsay when it seeks to introduce  evidence of a statement . . . made other than by a witness while testifying at the hearing and . . . offered to prove the truth of the matter stated (Evid. Code, 1200, subd. (a)). (People v. Thornton (2007) 41 Cal.4th 391, 429.) Evidentiary rulings on hearsay issues are also reviewed for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144.)

A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides, supra, 35 Cal.4th at p. 88.)

Before Pacheco testified, defense counsel told the court he did not intend to ask her about the phone call defendant received from the robber, because she didnt hear it. Counsel said she would testify that defendant told her he was going to go pick this person up because he was stranded, and she insisted on going with him. Counsel asserted that the testimony was nonhearsay because it was offered not for its truth but instead to show what she decided to do when defendant related the statement the man defendant later identified as Gerald Washington made in his phone call to defendant. The trial court opined that if so, it was irrelevant, and otherwise it was hearsay:

[I]ts always suspect when somebody says, Oh, well, Im not offering it for the truth of the matter, . . . [T]he question is always whats the relevance of it if it isnt [offered for its truth]? And there may be ways that you canyou know, did she have a conversation with the defendant? Yes. And as a result of that conversation with the defendant, did you get into the car with him? Yes. And because, you know, to try and get it in without . . . the truth of why they were going to the Liquor [Bin] area . . . . You were trying to get it in there to show that they were there to pick someone up. Not to show that she got into the car with them [sic]. And that means that you are offering it for the truth of it. And so thats the objection that Im dealing with. [] So . . . if it isnt true, if it doesnt matter whether its true that they were going there to pick up a friend, then the only point is did she go in the car with him. And you can do that without getting into that conversation. The trial court excluded the evidence.

The trial courts ruling excluding the evidence did not fall outside the bounds of reason. It was reasonable to conclude, as we discern the court did, that either the evidence was hearsay because it was offered as an out-of-court statement to support the defense theory that defendant had an innocent reason for going to collect the man who turned out to have robbed the Liquor Bin, or was irrelevant because it was offered solely to show that Pacheco decided to go with defendant to pick up the individual. The claim is without merit.

III. Ruling on Mistrial Motion After Witnesss Remark About a Parole Hold

Defendant argues that the trial court erred in denying a mistrial motion he made because a police officer testifying for the prosecution brand[ed] [him] as a criminal in the jurys eyes when, contrary to the courts instruction to the parties not to introduce evidence of defendants criminal history before the jury, the officer alluded to such a history. Defendant claims error under state law and, as an additional legal consequence, a violation of his federal due process rights.

Events proceeded as follows: On Friday, September 16, 2005, a San Jose police officer was completing detailed testimony. On cross-examination, he let slip a reference to a parole hold. We quote from before the remark and after it to provide context:

Q. And at the time you received this case, had you received any information about a witness by the name of Paul Decker?

A. As I said, some of the supplemental reports were coming in later. I believe that I received the supplemental report about his statement later; probably later in the day.

Q. Now, at that point you made a decision that you were going to re-arrest Mr. Packer, if you will?

A. We made a decision, or I made a decision to contact Sacramento, contact theto have a parole hold

[Defense counsel]: May we approach?

The Court: Yes.

(Discussion off the record at the bench.)

The Court: Motion is withdrawn.

Q. [Defense counsel:] When youdid you actually personally go re-arrest Mr. Packer yourself?

A. No, I did not.

Q. Were you present when that re-arrest took place?

A. No, I was not.

Q. So that was an assignment you delegated to other officers?

A. Thats correct.

[Defense counsel]: I have nothing further.

The Court: Anything else?

[The prosecutor]: No, your honor.

Thereafter the parties discussed the witnesss parole hold reference. Defendant moved for a mistrial because he felt that the witnesss statement apprised the jury that he had a criminal record and had thereby prejudiced the jurors. The prosecutor contended that the witnesss answer trailed off substantially and Im not entirely sure that the jury heard it. We have to assume that they did. But I believe a curative instruction would address the issue. Defense counsel agreed with the prosecutor in part: I am inclined to agree . . . that the pitch and the volume of the statement dropped off, and I only really heard after Sacramento. . . . But that doesnt mean that somebody on the jury didnt hear it. The court stated that it had heard the improper remark.

The trial court dismissed the jury for the weekend. The next Monday, September 19, 2005, the court and the parties took up the matter again. The court stated that it had to assume that at least some of the jury members had heard the parole hold reference. Ultimately the court instructed the jury as follows: Ladies and Gentlemen, last week when [the witness] was on the stand, he was asked a question. And that question was withdrawn. You recall there was a little side-bar conference. The question was withdrawn. But I did not instruct you to disregard the answer. The question had to do with whether he had made a decision to go and arrest the defendant. And that question was withdrawn, and Im now instructing you that the answerhe kind of got cut-off in the middle of the answer anyway; but if you heard and recall that answer, you are now instructed to disregard that answer and not let it in any way come into your deliberations. The answer is stricken. That portion of his testimony is stricken from the record, and you are to treat it as though you never heard of it.

A motion for mistrial should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1029.) A trial court may find irreparable damage if it is  apprised of prejudice that it judges incurable by admonition or instruction.  (People v. Avila (2006) 38 Cal.4th 491, 573.) We review a ruling denying a motion for mistrial for abuse of discretion. (Lewis and Oliver, supra, at p. 1029.) This is so because [w]hether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis (People v. Chatman (2006) 38 Cal.4th 344, 369-370), an analysis that, when it involves events inside the courtroom, the trial court is almost always better positioned to undertake than are we.

Evidently the witness made a slip of the tongue. His remark provided little context of any kind, and made no connection to a criminal record. It is speculative to assume that any juror who may have heard the reference to a parole hold would understand it as meaning that defendant had a criminal record. Finally, the trial court instructed the jury to disregard the parole hold reference if it heard it, and it wisely gave that instruction without repeating the offending language. Under these circumstances, the courts implicit conclusion that defendants right to a fair trial had not been irreparably damaged was reasonable. Defendants fair-trial rights may not have been damaged at all, and if they were, the court repaired the damage. We find no abuse of discretion.

IV. Cumulative Error

Defendant claims that his due process right to a fair trial, evidently under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15, of the California Constitution, was violated because of the cumulative effect of the errors he discerns the trial court committed in excluding the proffered testimony of Monique Pacheco and denying his mistrial motion.

A claim of cumulative error is in essence a due process claim and is often presented as such (see, e.g., People v. Rogers (2006) 39 Cal.4th 826, 911). The litmus test for cumulative error is whether defendant received due process and a fair trial.  (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

Defendants claim fails for want of a sufficient legal predicate. As we have explained, the trial court committed no error with regard to Pachecos proffered testimony and in denying his mistrial motion. There was no error to accumulate, and no due process violation.

V. Denying Motion for New Trial

Defendant claims that the trial court abused its discretion in denying his motion for a new trial. We do not agree.

On May 25, 2006, defendant filed a motion for new trial, raising two legal grounds in support. He raises one of those grounds again before this court, namely that the trial courts excluding the proffered testimony of Monique Pacheco and denying his mistrial motion denied him a fair trial. (Cf.  1181 [not providing that a new trial may be had on the ground that the prior trial was unfair]; but see id., subd. 5 [providing that a new trial may be had when the court . . . has erred in the decision of any question of law arising during the course of the trial].)

On appeal, a trial courts ruling on a motion for new trial is reviewed for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1159.) This standard of review is not entirely deferential, however. In particular, an abuse of discretion in ruling on a new trial motion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard. (People v. Knoller (2007) 41 Cal.4th 139, 156 [speaking of the granting of a new trial motion].) To the extent that the reviewing court is evaluating whether the trial court applied an incorrect legal standard, it is usually addressing a question that is purely or primarily legal. In such a situation, we review the courts ruling independently. (See People v. Kennedy (2005) 36 Cal.4th 595, 608 [stating the general rule that the abuse of discretion standard applies to questions of pure fact, and . . . the independent review standard applies to questions of pure law.]; People v. Marshall (1997) 15 Cal.4th 1, 24 (per curiam) [issue . . . could be treated as primarily a question of law, subject to de novo review.].)

Although section 1181 states that a defendants new trial motion may be granted only on the grounds stated in that section, several courts have held that new trials may nonetheless be granted on grounds not enumerated in the statute when necessary to protect a defendants constitutional right to a fair trial. (People v. Knoller, supra, 41 Cal.4th at p. 158; see People v. Albarran (2007) 149 Cal.App.4th 214, 239.) We will assume that we may entertain defendants claim.

Doing so, however, we find it to be without merit. As stated in our discussion of defendants fourth claim, the court did not abuse its discretion either in excluding Pachecos proffered testimony or in denying his mistrial motion. As we have explained, defendant was afforded a fair trial. Accordingly, the court did not abuse its discretion in denying defendants new trial motion.

DISPOSITION

The judgment is affirmed.

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Duffy, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P. J.

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Mihara, J.

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

^[2]This statement is less than completely accurate. As noted, in Hill a police officer testified that he saw the defendant trying to conceal a gun in the cars front seat. The defendant testified that he knew nothing about the gun. Another defendant, one of the two actual robbers, testified that the second robber threw the gun on the front seat as the robbers fled from the car. (People v. Hill, supra, 77 Cal.App.2d at pp. 289-292.)