P. v. Roberson

Filed 11/21/07 P. v. Roberson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Marlon L. Roberson of second degree robbery. Finding that defendant had served two prior prison terms, the trial court sentenced him to an aggregate term of five years in state prison.

On appeal, defendant contends the trial court prejudicially erred by letting the prosecution introduce evidence of defendants prior acts to prove his identity as the person who committed the robbery. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A

This appeal deals with the trial courts pretrial rulings; thus, the factual summary in this part is taken from the Peoples offer of proof and the evidence presented at an Evidence Code section 402 hearing.

On May 3, 2004, two men robbed the Circle K convenience store at the corner of Fair Oaks Boulevard and Howe Avenue in Sacramento. The first culprit--later identified as Andre Griffin--entered the store, obtained a job application, left the store, and returned at least twice. The last time he returned, he was accompanied by another person. Griffin threatened the clerk, went behind the counter, took a couple of cases of cigarettes, and passed them to the other person. After the second culprit left with those items, Griffin took two more cases of cigarettes, and fled from the store. Griffin later pled to this offense.

On June 8, 2004, defendant was arrested as a suspect in the May 3 robbery. While being interviewed by Detectives Donald Hoffman and Paul Biondi, defendant said that he had known Griffin for a few months. Defendant identified Griffin as the first culprit from a photograph extracted from the stores video surveillance tape.

Defendant refused to admit or deny that he was the second culprit in the photograph. However, he admitted that he had been with Griffin in the past when Griffin committed a number of crimes. On one such occasion, he was with Griffin in a convenience store when Griffin told the clerk to move out of his way, grabbed cigarettes from behind the counter, and ran out. On another occasion--a robbery of the Circle K store on P Street in midtown Sacramento on April 30, 2004--Griffin was carrying a black plastic bag containing quite a few cartons of cigarettes when he returned to a car defendant was driving; Griffin gave defendant two or three cartons, and defendant sold them.^[1] On yet another occasion, defendant was with Griffin in an AM/PM store in downtown Sacramento when Griffin reached over the counter and stole lottery tickets.^[2]

Defendant also admitted fenc[ing] large quantities of cigarettes for Griffin two or three times.

When first asked about the identity of the second culprit, defendant said, Come on, man. You guys want me to say thats me. When Detective Hoffman said that he thought the second culprit was defendant and that people had told Hoffman it was him, defendant said: I didnt say it wasnt me, man. When Hoffman remarked, From what I can tell on the tape, I dont think you even said anything, defendant responded: I didnt. When Hoffman continued, I dont think you [] . . . [] did anything threatening, defendant replied: I didnt. When Hoffman encouraged defendant to be truthful, defendant said: I know the best thing to do is to be truthful with you guys. But what Im saying is if I was to say thats me [] . . . [] then I would be incriminating myself.

Relying on Evidence Code section 1220--which provides that the admission of a party is an exception to the hearsay rule--the prosecutor moved in limine to introduce, as an admission regarding the particular crime at hand, defendants statement that he was with Griffin inside a store when Griffin stole some cigarettes. (Further section references are to the Evidence Code.) The prosecutor also moved to introduce defendants statements that he was with Griffin when Griffin stole lottery tickets, was in a car when Griffin returned with a black garbage bag containing cartons of cigarettes, and fenced cigarettes for Griffin. The prosecutor asserted those statements further showed defendants relationship with Griffin and, thus, were relevant to establish defendant was the second suspect in the charged robbery that was committed on May 3, 2004. ( 1101, subd. (b) [evidence that a person committed another crime may be admissible when relevant to prove a fact such as the identity of the perpetrator of the charged offense].)

Defendant objected to the admission of all four statements. Among other things, he argued that his statements regarding the lottery ticket incident, the black bag incident, and the fencing of cigarettes lacked the common marks or distinctiveness needed for admissibility pursuant to section 1101, subdivision (b), and were unduly prejudicial under section 352.

The trial court ruled (1) defendants statement that he was with Griffin inside a store when Griffin stole some cigarettes was admissible as an admission tending to prove defendant participated in the robbery on May 3, 2004 ( 1220), (2) his other statements were admissible for purposes of establishing a relationship, a link in that factual chain that ties the two together in some way as either being principal and accomplice or somehow related in these chain of events, and (3) defendants statements concerning the black bag incident and his fencing of cigarettes for Griffin also were admissible to establish defendants identity as the second culprit in the May 3 robbery ( 1101, subd. (b)).^[3] In concluding defendants statements concerning the black bag incident and the fencing were admissible to prove identity, the court noted that the black bag incident and the charged offense both involved Griffin and the theft of quantities of cigarettes from convenience stores, during which threats were made to the cashier. The court also observed that no weapons were used, and no money or other goods were taken. With respect to the fencing, the court stated that, like the charged offense, the fencing involved Griffin and large quantities of cigarettes not appropriately purchased or legally purchased.

In ruling the probative value of the statements outweigh[ed] any prejudicial value under the [section] 352 analysis, the trial court found the probative value . . . is quite high with respect to the nature of the relationship, [t]here is no issue as to remoteness [since] . . . . [a]ll these events . . . occurred within the recent past; [t]he likelihood of confusion of the jury . . . is small, given that Detective Hoffmans testimony did not consume a great deal of time; and [i]t was clear . . . that [defendant] had not been charged in these prior acts . . . . Acknowledging there is some danger . . . there will be guilt by association, the court found the statements were not unduly prejudicial given . . . that [they were] statements of [defendant] himself admitting to being in the general vicinity of or knowing about these events after the fact.

B

The following summary of facts is taken from the evidence introduced at trial.

Portions of the convenience stores surveillance video taken just before, during, and after the May 3 robbery were played for the jury. The parties stipulated that Griffin was the first culprit depicted in the video and in still photographs extracted from the video, and that Griffin was charged with second degree robbery, entered a plea to that charge and was convicted on July 15th, 2005.

A redacted version of the videotape of the interview of defendant by Detectives Hoffman and Biondi on June 8, 2004--including all of the statements summarized in part A, ante--was also played for the jury, and Hoffman and Biondi testified regarding the interview.

Detective Hoffman also testified that the cashier in the May 3 robbery was unable to pick defendant out of a photographic lineup, but that defendants wife identified defendant as the second culprit from a still photograph taken from the stores video surveillance tape. Defendants wife had earlier testified and denied telling Hoffman that defendant was the second culprit.

Monica Jones, who worked with defendant from March 2004 until March 2005, identified him as the second culprit shown in still photographs taken from the stores video surveillance tape.

A light blue shirt that was consistent in numerous respects with the one worn by the second culprit in the surveillance video was found in defendants closet. The shirt is from a clothing line called Makaveli, which is associated with the rap artist Tupac Shakur. It had been purchased by defendants wife at TJ Maxx, and defendants wife had observed maybe two other people in the neighborhood wearing similar blue shirts.

Anthony Tarrant, Jr., who knew defendant, Griffin, and a man named Terrell Davis, testified for the defense that he overheard Griffin and Davis admit having taken some cigars from a gas station or mini mart with no gun. One of the men played the decoy and grabbed Swishers [cigars] or beers or gum, whatever else he could get his hands on, while the other man took the cigarettes, things of that nature. Tarrant estimated the conversation took place in the beginning of 2004. Neither Griffin nor Davis named the specific store they took the items from or stated when the incident occurred. Tarrant identified Davis as the second culprit shown in a still photograph taken from the stores video surveillance tape.

DISCUSSION

Defendant contends the court abused its discretion by admitting evidence of previous uncharged incidents of crimes in violation of [his] constitutional right to due process and a fair trial.

Under the hearsay rule, evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated is inadmissible [e]xcept as provided by law. ( 1200.) However, [e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . . ( 1220.)

In general, evidence of a defendants character or a trait of his character, including specific instances of his conduct, is not admissible to prove conduct on a specific occasion. ( 1101, subd. (a); cf. 1102.) But evidence that a defendant committed a crime, civil wrong, or other act is admissible when relevant to prove, among other things, the identity of the perpetrator of the charged offense. ( 1101, subd. (b).)

Even if evidence is otherwise admissible, the trial court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ( 352.)

We review the trial courts rulings under sections 1101 and 352 for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 636-637.) A court abuses its discretion only when its ruling exceeds the bounds of reason. (People v. Kipp (1998) 18 Cal.4th 349, 371.)

Here, defendants pretrial statements were offered to prove the truth of the matters asserted, i.e., defendant was present in a convenience store when Griffin stole large quantities of cigarettes; he was present in another convenience store when Griffin stole lottery tickets; he was present immediately after Griffin stole large quantities of cigarettes; and he fenced large quantities of cigarettes for Griffin. Accordingly, the statements constituted hearsay ( 1200) but fell within an exception to the hearsay rule for party admissions ( 1220).

However, to the extent defendants statements concerned his prior acts, they were admissible only if relevant to prove some other fact, such as his identity as a perpetrator of the charged offense. ( 1101, subd. (b).)^[4]

Defendant wisely does not challenge the ruling that his statement he was with Griffin inside a store when Griffin stole a large quantity of cigarettes was admissible under section 1220. A statement that tends to prove a defendant committed the charged offense, as opposed to some prior crime or act, is admissible as an admission and does not have to also meet the standard for admissibility of evidence of uncharged acts used to prove identity under . . . section 1101, subdivision (b). (People v. Robinson (2000)85 Cal.App.4th 434, 445.) Such was the case with respect to defendants statement that he was with Griffin inside a store when Griffin stole a large quantity of cigarettes; it generally described the charged offense and was not offered as other-crime or other-act evidence, but as an admission that tended to prove he committed the charged offense.

The question then is whether defendants statements about other acts--namely the black bag incident, the lottery ticket incident, and the fencing--were admissible under section 1101, subdivision (b) to prove his identity as the second culprit in the May 3 robbery charged against him.

To be relevant on the issue of identity, the prior acts must be highly similar to the charged offense. (People v. Kipp, supra, 18 Cal.4th at pp. 369-370.) Evidence of a prior act is relevant to prove identity only if the prior act and the charged offense display a pattern and characteristics . . . so unusual and distinctive as to be like a signature. [Citations.] The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks. (People v. Thornton (1974) 11 Cal.3d 738, 756, italics in original, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) (Ibid.)

The presence of the same confederate in the charged and uncharged offenses is a highly distinctive common mark. (People v. Cavanaugh (1968) 69 Cal.2d 262, 273; see also People v. Haston (1968) 69 Cal.2d 233, 250 (hereafter Haston).) As Californias Supreme Court explained in Haston: It is clear that McDowells presence, unlike the other features common to the charged and uncharged offenses, is a mark whose distinctive nature tends to differentiate those offenses from other armed robberies. There is only one Donald McDowell, and his conjunction with [Haston] in earlier robberies, together with his admitted participation in the robberies charged, supports the inference that [Haston] and not some other person was his accomplice in those charged offenses. It thus appears that evidence of the uncharged offenses has some probative value on the issue of identity. (Haston, supra, 69 Cal.2d at p. 249, italics omitted.)

The Supreme Court went on to conclude that the other crimes tend[ing] to show that on at least two other occasions [Haston] had been McDowells crime partner in robberies bearing other marks of similarity to the charged offenses . . . has great probative value on the issue of identity. (Haston, supra, 69 Cal.2d at p. 250, fns. omitted.)

So it is here with respect to evidence of the black bag incident and the lottery ticket incident. Both, as well as the charged offense, involved thefts from convenience stores in or near downtown Sacramento during a relatively short period of time. None involved the use of a weapon. Both the black bag incident and the charged offense involved the theft of large quantities of cigarettes. And, most importantly, Griffin was the perpetrator of the prior and charged offenses.

Griffins presence at, and participation in, the prior thefts, his admitted participation in the charged offense, and the other common marks to which we have adverted support the inference that defendant, and not some other person, was Griffins accomplice in the charged offense. (Haston, supra, 69 Cal.2d at p. 250.) Thus, evidence of the black bag incident and the lottery ticket incident was relevant to prove defendants identity as the second culprit in the May 3 robbery charged against defendant.

Like the evidence in Haston, the probative value of the black bag incident and the lottery ticket incident was not outweighed by any potential for prejudice. As noted above, those incidents and the charged offense shared a highly distinctive feature--Griffins presence--and thus had substantial probative value on the issue of identity. The probative value was further enhanced by the proximity of the three incidents in time and location. The black bag incident occurred on April 30, 2004; the lottery ticket occurred at most a few months prior to June 8, 2004, when defendant stated that he met Griffin; and the charged offense occurred on May 3, 2004. Evidence concerning the prior acts came primarily from defendant himself. Finally, the People relied on the evidence to prove the key issue in the case--the identity of the second culprit.

Therefore, the trial court did not exceed the bounds of reason when it allowed the introduction of evidence of those prior acts.

We need not decide whether evidence regarding the fencing of cigarettes for Griffin was likewise admissible pursuant to section 1101, subdivision (b). This is not a case where the prior acts evidence was the only evidence linking defendant to the charged offense. Both his wife and Jones identified him as the second culprit in photographs taken from the surveillance video; and jurors were shown the surveillance video, thus allowing them to make their own assessments of whether it showed defendant as the accomplice. A shirt that appeared to match the one worn by the second suspect was found in defendants closet. When interviewed by law enforcement about the charged offense, defendant made statements that strongly suggested he was at least present when the crime occurred. He admitted he was with Griffin in a convenience store when Griffin grabbed cigarettes from behind the counter and left. When Detective Hoffman told defendant that it appeared from the surveillance video that defendant did not make any statements or threaten anyone during the robbery, defendant replied: I didnt. And when Hoffman said that he believed defendant was the second suspect, defendant responded: I didnt say it wasnt me.

In light of the strong evidence of defendants guilt apart from the other acts evidence, it is not reasonably probable that defendant would have obtained a more favorable result if any or all

of the prior acts evidence had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^[1] After two witnesses identified him as the perpetrator, Griffin was arrested for the April 30 robbery. Other than defendants statement, Detective Hoffman had no information connecting defendant to that robbery.

^[2] Other than defendants statement, Detective Hoffman had no information that the theft of lottery tickets had occurred, and had no basis upon which to charge defendant with the crime.

^[3] The court found defendants statement concerning the lottery ticket incident was not admissible to establish identity under section 1101, subdivision (b) because it did not . . . share anything in commonality . . . with the other matters other than there was a theft or a robbery. As previously mentioned, the court found defendants statement concerning that incident was nevertheless admissible to show a relationship between defendant and Griffin.

^[4] Defendant mistakenly contends the proffered evidence was improperly analyzed under section 1101[, subdivision (b)] because it did not involve another crime by [defendant]. Contrary to defendants assertion, the other acts evidence did tend to show he had direct culpability, at least as an aider and abettor, in other crimes committed by Griffin. In any event, such culpability is not a prerequisite for the application of section 1101, subdivision (b).