P. v. Roberts

Filed 2/3/09 P. v. Roberts CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found defendant Timothy Hudson Roberts guilty as charged of first degree robbery and carjacking (Pen. Code,  211, 212.5, subd. (a), 215), and further found that he personally used a deadly weapon during the commission of each offense (Pen. Code  1192.7, subd. (c)(23)). After the trial court sentenced him to state prison for an aggregate term of six years, defendant filed a timely notice of appeal. Defendant contends that the judgment must be reversed because of misconduct by the prosecutor and instructional error. We conclude that no misconduct occurred. We also conclude that a unanimity instruction could have been given by the trial court, but in the circumstances of this case its omission was not prejudicial. We thus affirm.

BACKGROUND

Boiled down to its essence, this case has always been about taxi driver Sidney Shums identification of defendant as the man who robbed him and took his cab.

Shum testified that near midnight on February 1, 2006, he was driving his cab near Union Square in San Francisco. A man wearing a dark coat flagged down Shum and asked what would be the fare to drive him to Emeryville. When Shum quoted a price, the man agreed. Shum positively identified defendant in court as the man he picked up.

During the drive to Emeryville, his passengers furtive behavior began to create apprehension in Shums mind, causing him to secrete in his shoe the larger denomination bills he was carrying. When the cab arrived at the Emeryville destination, a movie theatre complex, defendant asked Shum to drive into the parking structure. Shum declined. Defendant produced a knife and held it against Shums throat. Defendant turned off the cars ignition and took the keys. Defendant threatened to kill Shum if he did not surrender his money, ID, cellphone, and everything. Defendant also told Shum to put his walletwhich contained approximately $200on the seat, get on the ground, and not look at him. Shum did so, and defendant drove off in the cab. Less than an hour later, the cab was recovered in Berkeley.

Within minutes, Shum contacted police, and described his passenger as either Black or Latino. Shum told an Emeryville officer that he could identify the man who robbed him. That was soon put to the test.

Because Shums cab was licensed by San Francisco, it was required to have an interior camera. Police downloaded photographs and circulated them on a flyer throughout the Bay Area. A Berkeley police officer notified the Emeryville detective working the case about a suspect who resembled the person on the flyer. The Emeryville detective made a photo array that included the Berkeley suspect, but not defendant, which he showed to Shum. The detective admonished Shum that if he did not recognize any of the persons depicted, he should say so. Shum replied that he did not recognize anybody shown.

On March 10, 2006, defendant was apprehended in San Francisco on an unrelated charge. He had a knife and black leather jacket in his possession, and he identified himself as a Tongan.[1] Defendant was in position number 3 of a videotaped physical line‑up conducted in San Francisco. The Emeryville detective showed the video to Shum, who identified person number 3 as the person who robbed him and took his cab. Shum watched the video three or four times and was emphatic in his identification, basing it on the features of defendant and his voice. From a photograph, Shum also identified the black leather jacket as the same as that worn by defendant on the night of February 1. Shum also testified that a photograph of the knife was similar to the one used in the robbery, but he could be sure because he did not see all of the knife.[2]

At the trial, Shum testified that he was 100 percent certain that defendant was the man who robbed him and took his cab. He also identified defendant from photographs taken by the camera inside his cab, including one with defendant holding a knife to his throat.

Defendant did not testify. The defense strategy put before the jury was racial misidentification.

Defendants half-sister testified that, as Tongans, she and defendant are commonly misidentified as Hawaiian or Polynesian.

Dr. Mitchell Eisen, a professor of psychology at California State University at Los Angeles, testified as an expert in eyewitness identification memory and suggestibility. Dr. Eisen did not interview Shum, and did not express an opinion of his identification, or the line-ups procedures used by police. [M]y role is really very narrow, . . . to describe the current state of the science in my very narrow area of expertise, which is memory and suggestibility. . . . and to avoid . . . giving [the] impression that I somehow have an opinion on any of the facts of this case, related to the guilt or innocence of the folks involved.

Dr. Eisen described the concept of same race bias in identification as in general, accuracy is going to be higher in the same-race group as opposed to cross-race group.[3] In his brief, defendant describes the rest of Dr. Eisens testimony as follows: Eisen testified generally about the process of memory, reconstruction of events, source monitoring, and the effects of surrounding circumstances, including stress, on the ability to remember a face. Eisen also pointed out the ways in which bias may be injected into lineup identifications. Eisen opined that someone robbed under stressful circumstances, such as at knife point, may focus on the most prominent features of the perpetrators appearance, and neglect attention to the less prominent details.

DISCUSSION

There Was No Prosecutorial Misconduct

Defendants contention that Prosecutorial Misconduct During Closing Argument Deprived Appellant of a Fair Trial is to be examined in the following context:

The prosecutor began his closing argument by going through the elements of the charged offenses and the enhancements, and briefly explaining why they were demonstrated by Shums testimony. The prosecutor then argued why the jury should conclude that Shum was a credible, particularly in his identification of defendant as the robber. He emphasized that Shum has been completely consistent that this man, Mr. Roberts, is the man that robbed and carjacked him on February 2nd, and that Shum never changed his mind. The prosecutor further told the jury In this case you had the luxury of having a great amount of evidence in addition to Mr. Shums testimony, including photos of this actual crime being committed, which would allow the jury to do a side-by-side comparison. He concluded with This is not a case of mistaken identity. All of the evidence in this case points to the defendants guilt.

In response, defense counsel argued that, while there was no doubt about the crimes, The issue is whether or not the gentleman seated at the table is the perpetrator of that crime or not. And I suggest to you that the evidence at very best is inconclusive. The digital photos taken inside the cab are not Mr. Roberts. After lengthy argument on that point, defense counsel shifted to why Dr. Eisens testimony provided more than adequate cause to reject Shums identification, and why the video line-up was not reliable.

In the prosecutors concluding argument, the following occurred:

Contrary to the defenses position, this is not a case of mistaken identity. And while neither side is required to call all available witnesses, if the defendant did not commit this crime, who did? Where is the alibi witness to come into this Court that says defendant was somewhere else? In the digital age that we live in where there are cameras, everywhere, as weve seen here in cabs, where is the evidence that the defendant was anywhere else?

MR. SHEARER: And Im going to object, Your Honor. Thats inappropriate argument.

THE COURT: Overruled.

MR. CHIN: Where are the cell phone records showing that the defendant was somewhere else?

MR. SHEARER: Again, I want to object, thats inappropriate argument.

THE COURT: Overruled.

MR. CHIN: There is no evidence to show that the defendant was anywhere else, because he was, in fact, in Mr. Shums cab, robbing him at knifepoint on February 2nd of 2006.[4]

Defendant is not asserting that the prosecutor transgressed Griffin v. California (1965) 380 U.S. 609 (Griffin) by commenting on defendants right not to testify. Rather, defendant contends that the prosecutors argument was a reference to facts outside the record, invited the jury to speculate as [to] the availability of exculpatory alibi evidence, and shifted the burden of proof to the defense. We are not persuaded.

  As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.  [Citation.] Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry. [Citation.] (People v. Gray (2005) 37 Cal.4th 168, 215.) Defendants objection did not satisfy this requirement. It would be difficult to imagine a less precise objection than defendants Thats inappropriate argument. It begs the inevitable questions, why or in what way inappropriate? It provides no insight or notice of the grounds defendant now claims as prejudicial, no clue that counsel was objecting to the prosecutor supposedly making reference to a matter on which the jury had heard no evidence, or that the jury being told that the defense had the burden of proving something.[5] Nor was the boilerplate objection accompanied by a request that the jury be admonished. For these reasons, defendants contention could be treated as not having been properly preserved for review.

In any event, on the merits we find no misconduct. A prosecutor has wide latitude to challenge a defendants evidence, and so long as the argument is fair comment on the evidence or a reasonable inference drawn therefrom, it is permissible. (People v. Gray, supra, 37 Cal.4th 168, 216.) [T]he prosecutor may comment  on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.   (People v. Cornwell (2005) 37 Cal.4th 50, 90, quoting People v. Turner (2004) 34 Cal.4th 406, 419.)  It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citation.] . . . (People v. Wharton (1991) 53 Cal.3d 522, 567.) A reviewing court must view the allegedly objectionable statements in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.)

This is not an instance where the prosecutor used overt language that the defendant had an obligation, or a duty or a burden of proof. (Cf. People v. Woods (2006) 146 Cal.App.4th 106, 113-114 [reversible error for prosecutor to argue that defense counsel was  obligated to put on evidence].) Viewed against the entirety of the prosecutors arguments, the statements to which defendant takes exception cannot be condemned as misconduct. On the contrary, the prosecutors statements are very much in the nature of fair comment on the state of the evidence. The prosecutors remarks about cell phone records are not so much a reference to  facts outside the record, in defendants characterization, as they are a logical comment based on the ubiquity of cell phones in the 21st Century, a matter of common knowledge. (People v. Wharton, supra, 53 Cal.3d 522, 567.) Together with the reference to the absence of alibi witnesses, the theme of the comments was defendants inability to tell the jury where he was if not robbing Sidney Shum. This was fair comment, not misconduct. (People v.Cornwell, supra, 37 Cal.4th 50, 90.) The full context of the prosecutors remarks provides no support for defendants claim that the prosecution was attempting to shift a burden of proof onto him.

There Was No Error In Not Giving A Unanimity Instruction

Concerning the robbery count, defendant contends: The information charged in Count I that appellant did unlawfully and by means of force and fear take personal property from the person of Shum, who was a taxi driver. However, the information was not specific as to what property it was that was subject to the taking described in Count I. Evidence produced at trial disclosed more than one item of personal property that may have supplied the item subject to the taking required for robbery. It is unclear whether the jury based its finding of a taking based upon the taking of Shums wallet, cash, other personal property, or the taxi cab itself. Thus it was incumbent on the court to instruct the jury suasponte that unanimity was required as to the item taken. We do not agree.

The governing law was stated in People v. Russo (2001) 25 Cal.4th 1124, 1132: In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [] This requirement of unanimity as to the criminal act is intended to eliminate the danger that that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.] . . . The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count. [Citation.]

The trial court saw the unanimity problem coming and discussed it with counsel:

THE COURT: Let me ask Mr. Chin a question. Youve charged both robbery and carjacking. Is it your position that the robbery, that the items taken that form the robbery are the money and the car?

MR. CHIN: The money, the wallet, the cell phone and the bag thats on the seat next to the victim.

THE COURT: Okay.

MR. CHIN: And then the car, obviously, is the subject of a carjacking.

THE COURT: Okay. Not that I think this is a big issue in this case, because I think its either the defendant or its not, or whoever it was, robbed everytook everything, but I think we would probably need to make clear that Count 1 applies to, for lack of a better phrase, the personal belongings and Count 2 applies to the car. So there isnt some question of unanimity here.

MR. SHEARER: Thats fine. I dont disagree with the Court. And if the Court wants to just add a . . . line, basically, to the effect of the language you just used.

THE COURT: You follow what I mean? [] . . . [] That you wouldnt want a situation in which six people thought Mr. Roberts was guilty of robbery because he took a cell phone and six people think he was guilty of robbery because he took a car. As I said, its not likely in this scenario to be an issue, but thats a common unanimity area where youre not quite sure what was taken, so you need all 12 people to agree that

MR. CHIN: But he could be convicted of the robbery based on taking the car.

THE COURT: He could be. Thats why I asked him.

MR. CHIN: Well, yes, I would be offering it for everything that was taken at the time, including the car and money, wallet, cell phone, bag.

MR. SHEARER: Thats fine, Judge.

THE COURT: Okay. All right, then.

MR. SHEARER: It could apply tothe language, it could apply to both. Thats fine.

THE COURT: All right. Good.

In his closing argument, the prosecutor told the jury that the taking of the cab as well the wallet, money, and cell phone and the bag that the defendant took from Mr. Shum, all of these items satisfied the property element of robbery.

Frankly, we have some difficulty making sense of the in-chambers discussion between the court and counsel. It seems to indicate that an agreement was reached whereby the court would modify an unspecified instruction. If so, that modification cannot be detected in the instructions given to the jury. Moreover, there is nothing which appears to address the unanimity problem identified by the court.

Nevertheless, we are not convinced that a unanimity instruction was required.

  A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. [Citations.]

. . . (People v. Champion (1995) 9 Cal.4th 879, 932.) The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them. [Citation.] (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

This is such a case. Although it would be theoretically possible for the jury to believe that defendant took some but not all items of property from Shum, they could only do so by accepting some but not all of Shums testimony when there no reasonable basis for making such a distinction. Such a distinction could not have a logical spatial or chronological basis because this was not a case where the acts were discrete in the sense that they were separated by place or time. The arguments of both counsel accepted that this was in effect a one-issue caseif the jury believed Shums identification and the cab photos, they would convict; if they did not believe there was an accurate identification of defendant, they would acquit. Defense counsel made no attempt to argue that defendant might have taken only some of the items from Shum. This was not a case where the defense offered different defenses to different acts or charges.

Even if we concluded that it was error not to give a unanimity instruction, defendant would not get a new trial. Failure to give a unanimity instruction qualifies as federal constitutional error, and thus requires reversal unless the error is found to be harmless beyond a reasonable doubt. (E.g., People v. Curry (2007) 158 Cal.App.4th 766, 783; People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.)  Where the record provides no rational basis, by way of evidence or argument, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless.  (People v. Curry, supra, at p. 783, quoting People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

Again, this is that case. The jury clearly resolved the basic credibility dispute against the defendant. This is shown not only by the jury finding defendant guilty of the substantive charges, but also of the personal weapon use allegations. This is significant because it not only reinforces the jurys acceptance of Shums identification, but also because it was a single display of the knife that was instrumental in achieving the criminal objective of both crimes. In sum, this was a single criminal transaction, accomplished by a single threat, with a single use of a deadly weapon, against a single victim, in a single place, at a single time. In these circumstances, if it was error not to deliver a unanimity instruction, such error would qualify as harmless.

DISPOSITION

The judgment of conviction is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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[1] The arresting officer testified on cross-examination that he might describe defendant as African-American, Hispanic, or Pacific Islander. When he arrested defendant, the officer asked him, I have no idea what race you are, can you tell me and he told me, Im a Pacific Islander, Im Tongan. And I did not know that. I had no idea. I couldnt put a race to him. Details of the San Francisco offense were provided by the trial court at the time of sentencing: Mr. Roberts was arrested . . . fleeing the scene of a robbery, [where] hes apparently held a knife to the throat of a night manager of a hotel in Union Square in San Francisco.

[2] Shum was also shown a photograph of a wallet, which he identified as his. Just how the wallet came to be photographed is not shown in the record, although it may have been photographed by Berkeley who retrieved it shortly after the cab was recovered. The line-up video was played at trial. Shum also testified that he lost a carry-on bag that we bring with us every day that have all my . . . taxicab information, like my certificate, . . . the city rules and stuff.

[3] Shum testified that he was born in Hong Kong; while there is nothing definitive establishing his race or ethnic group, there are oblique references suggesting that he is Chinese. This would explain Dr. Eisens testimony about same race bias.

[4] After the case went to the jury, defendant moved for a mistrial on the ground that the prosecutor in his rebuttal argument committed misconduct . . . in the form of arguing in some manner, shape or form defendant had an obligation to present evidence. I think his reference was in this digital age where the cell phone records, where this, where that, I believe that is an inappropriate comment onthat negatively impacts [sic] right against self-incrimination and his right not to testify. . . . [] . . . [] [I]t is misconduct based upon . . . the prosecutor negatively commenting upon the defendants right not to testify . . . . The court denied the motion.

[5] Admittedly, the latter objection can be discerned in defendants mistrial motion, but by then the issue had been mooted because the jury was deliberating. (See fn. 4, ante.) On the other hand, the major thrust of the mistrial motion appears to have been a Griffin-type complaint against the prosecution for obliquely drawing adverse attention to defendants decision not to testify. As already noted, defendant does not now renew any claim about a violation of his right to remain silent, and there is no reference to Griffin in his brief.