P. v. Allen

Filed 5/22/08 P. v. Allen CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Leandrew C. Allen appeals the judgment following his conviction for robbery (Pen. Code,  211),[1] unlawful possession of a firearm ( 12021, subd. (e)), unlawful possession of ammunition ( 12316, subd. (b)(1)), and having a concealed firearm in a vehicle ( 12025, subd. (a)(1)). The jury found a true allegation that Allen personally used a firearm in the robbery. ( 12022.53, subd. (b).) Allen contends the trial court erred in admitting evidence of a prior uncharged offense, and violated his constitutional right of confrontation by admitting a hearsay statement by a nontestifying witness. He also claims imposition of an upper term sentence violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). We affirm.

FACTS AND PROCEDURAL HISTORY

Facts of Charged Offense

On November 26, 2005, Ruben Perez and two of his workers, Francisco Andrade and David Villatoro, were installing a fence at a house. Andrade and Villatoro were working on the fence, and Perez was resting because he was ill. Two young males approached. One of them placed the barrel of a gun against Andrade's neck, and began yelling in English. Andrade did not speak much English, but looked up and saw Allen holding the gun. Perez recognized Allen from a similar robbery that had occurred the day before. Andrade asked Allen if he wanted money, and Allen responded, "Yes, dinero." Andrade gave Allen approximately $100 from his pocket. Allen pushed Andrade down, and removed Andrade's wallet. Allen took two 500 Mexican peso bills from Andrade's wallet.

The other man demanded money from Villatoro and pushed him to the ground. Villatoro and Perez were searched, but no money was found. The two robbers walked away.

The owner of the house called the police. The police spoke briefly to the victims and a woman to determine the direction in which the robbers had fled. Based on information obtained during the interviews, the police followed and located a tan Honda in an alley behind a residence. Police detained three occupants of the car, and saw Allen walking towards the residence.

Other officers arrived at the scene of the robbery and drove the victims to the alley where the men in the tan Honda had been detained for a field identification "show up." None of the victims identified any of the men in the Honda, and were driven back to the robbery scene.

Officers located another vehicle, a Ford Taurus, with the door open and keys in the ignition. Officers found two 500 peso notes in the Taurus as well as a gun and a sweatshirt. While the Ford Taurus was being searched, Allen appeared at the door to the residence and told police that the car belonged to him. An officer asked him if his name was "Drew," and Allen responded affirmatively.

Allen was detained, and the victims were brought back to the alley for a second field identification. Andrade and Perez identified Allen as one of the robbers. Perez's field identification was unclear, but he unequivocally identified Allen as one of the robbers at trial. In a search of Allen's residence, the police found Perez's wallet.

Facts of Uncharged Offense

Evidence of a robbery of the same victims on November 25, the day before the charged offense, was admitted at trial. On November 25, Andrade and Villatoro were working on the same fence at the same location, and Perez was resting in the yard because he was ill. Allen and two other young African-American men, wearing hooded sweatshirts and jeans, approached Andrade and Villatoro. One of the men pointed an old semiautomatic handgun at Villatoro, and Allen began speaking to Andrade. Seeing that another man was pointing a gun at Villatoro, Andrade removed money from his pocket and handed it to Allen. Villatoro also gave money to Allen, and Perez gave his wallet to another man.

After the three men left, Perez called the police on his cell phone. Officers responded and took statements, including descriptions of the robbers. The officers did not speak much Spanish, and the victims did not speak much English. In the field identification that occurred after the November 26 charged offence, Andrade and Perez both identified Allen as one of the men who robbed them on November 25.

Procedural History

Allen was charged with robbery, unlawful possession of a firearm, unlawful possession of ammunition, and having a concealed weapon in a vehicle. The information also alleged personal use of a firearm in the robbery. His first trial resulted in convictions for unlawful possession of a firearm and ammunition, but the jury was unable to reach a verdict on the robbery or concealed weapon in a vehicle offenses. He was sentenced to concurrent three-year upper terms on the possession of a firearm and ammunition counts.

A second trial of the robbery and concealed weapon offenses resulted in a mistrial after testimony by a police officer which revealed facts regarding the uncharged robbery that the trial court previously had excluded from evidence. A third trial resulted in convictions on those offenses and a true finding that Allen personally used a firearm. The trial court sentenced Allen to 13 years in state prison, consisting of the three-year middle term for the robbery, 10 years for the personal use enhancement, plus a two-year middle term for the concealed weapon in a vehicle and the previously-imposed three-year upper term sentences for possession of a firearm and possession of ammunition. The sentences for having a concealed weapon in a vehicle, possession of a firearm, and possession of ammunition were ordered to run concurrently with the robbery sentence.

Allen filed a timely notice of appeal of the judgment imposed after the third trial.

DISCUSSION

Error in Admission of Uncharged Offense Evidence Not Prejudicial

Allen contends that the trial court abused its discretion by admitting evidence of the uncharged November 25 robbery to prove his identity as one of the persons who committed the November 26 charged offense. We disagree.

Although inadmissible to prove criminal disposition or bad character, evidence of an uncharged offense may be admitted to prove some material fact in issue, such as intent, knowledge, a common plan or scheme, or identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403; Evid. Code, 1101.) Because it is inherently prejudicial, the admission of evidence of uncharged offenses should be scrutinized with great care. (People v. Lewis (2001) 25 Cal.4th 610, 637.) In cases where such evidence is offered to prove a defendant's identity as the perpetrator of the charged offense, the offenses "must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts," and the "'. . . characteristics of the crimes must be so unusual and distinctive as to be like a signature.'" (Ewoldt, supra, at p. 403; see People v. Roldan (2005) 35 Cal.4th 646, 706.) As with other circumstantial evidence, admissibility depends on the materiality of the fact that is being proved, the tendency of the prior crime to prove that fact, and the existence of some rule requiring exclusion. (Roldan, supra, at p. 705.) On appeal, we review a trial court's ruling for abuse of discretion. (Ibid.)

The trial court did not abuse its discretion in admitting evidence of the uncharged offense for the purpose of proving Allen's identity as a perpetrator of the charged offense. The court reasonably concluded that the charged and uncharged offenses shared common features sufficiently distinctive to resemble a "signature" and support the inference that the offenses were committed by the same person. (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) The location was the same, the victims were the same, and the two offenses occurred within a 24-hour period. Although the uncharged and charged offenses were committed by three and two men respectively, the two robberies were virtual carbon copies of each other in other respects.

Sufficient similarity, however, does not end the analysis. Admission of evidence of an uncharged offense is permissible only if its probative value is substantial and not outweighed by the danger of undue prejudice. (People v. Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code,  352.) Among other factors, the trial court should consider the independence of the evidence of the uncharged offense from that of the charged offense, the potential of confusing or misleading the jurors, the strength and inflammatory effect of the evidence of the uncharged offense, and whether the defendant has been convicted of the uncharged offense. (See People v. Falsetta (1999) 21 Cal.4th 903, 917; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) We will uphold a trial court's ruling under Evidence Code section 352 unless there has been a manifest abuse of discretion. (People v. Brown (1993) 17 Cal.App.4th 1389, 1396; Jennings, supra, at p. 1314.)

We conclude that there was no abuse of discretion in this case. The key evidence implicating Allen in the charged offense was the identification of him as one of the two robbers by victims Andrade and Perez. There was no question that the charged offense was committed and, if the jury believed the Andrade and Perez identifications, that it was committed by Allen. Because Allen contested the identifications, evidence

regarding the uncharged robbery the day before was relevant and highly probative to establish the evidentiary value of the victims' identifications of Allen as a perpetrator of the charged offense. The evidence concerned the reliability of the identifications and the credibility of the victim witnesses. (See Evid. Code,  780.) It is certainly probative that Andrade and Perez had seen Allen on more than one occasion, and had seen him under very similar circumstances. Allen was no stranger to Andrade and Perez, and the jury could reasonably conclude that they were less likely to mistakenly identify Allen as a perpetrator of the charged offense based on the prior encounter.

No Denial of Right of Confrontation

Allen contends that the trial court violated his right of confrontation when it indirectly allowed the jury to consider an out-of-court statement identifying him as one of the robbers. He also argues that the statement was inadmissible hearsay. We disagree.

A testimonial statement of a witness absent from trial is constitutionally admissible only if the witness is unavailable and the defendant has had a prior opportunity to cross-examine. (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) Testimonial hearsay has not been comprehensively defined, but includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial and police interrogations. (Id., at p. 68.) To be testimonial, "the statement must have been given and taken primarily for the purpose ascribed to testimonyto establish or prove some past fact for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984.)

During the police investigation, an unidentified woman told an officer that she had seen a man named "Drew" running away from the house where the robbery occurred. It is undisputed that "Drew" refers to Allen. The trial court excluded testimony of this identification because the witness was not at trial. An identification of Allen during a police interview would be a testimonial statement and would have been constitutionally inadmissible unless Allen had had an opportunity to cross-examine. (Crawford v. Washington, supra, 541 U.S. at pp. 53-54.)

Although no such evidence was presented at trial, police officer Rodriguez testified that, when Allen identified the Ford Taurus as his car, Rodriguez asked him if his name was "Drew" and Allen answered in the affirmative. Later, another police officer testified that "[w]e knew we were looking for Drew."

Allen claims these references to "Drew" were tantamount to evidence of an identification of Allen as a perpetrator by a nontestifying witness because the jury necessarily would have made that assumption. We disagree. The jury may have concluded that the name "Drew" was obtained in some manner during the police investigation, but there was no evidence showing where the police obtained the name or why the police were looking for Drew. The "confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial." (People v. Cage, supra, 40 Cal.4th at p. 984.) Here, no such hearsay statements were admitted at trial. Neither the confrontation clause nor the hearsay rule were implicated because there were no testimonial statements by absent witnesses offered for the truth of the matter asserted. (See Crawford v. Washington, supra, 541 U.S. at p. 59.)

Allen's reliance on the case of United States v. Cromer (6th Cir. 2004) 389 F.3d 662, is misplaced. Cromer concerned testimony by a police officer conveying information obtained from a nontestifying informant, and drew a distinction between background testimony, and testimony offered to prove criminal conduct. Cromer concluded that testimony explaining how the defendant became a subject of a criminal investigation did not violate the confrontation clause because it did not clearly relate to any statements by the informant and was "provided merely by way of background." (Id., at pp. 675-676.) "Any out-of-court statements alluded to by [the investigator] at this juncture served the purpose of explaining how certain events came to pass or why the officers took the actions they did. Because the statements were not offered to establish the truth of the matter asserted, the Confrontation Clause does not apply." (Id., at p. 676, fn. omitted.) Conversely, testimony concerning the defendant's participation in criminal conduct was offered to establish the truth of the matters asserted and violated the confrontation clause. (Id., at pp. 676-677.) In the instant case, the evidence referring to "Drew" was not offered to prove that he committed the charged offense. It revealed little information at all and, at most, background information.

No Cunningham Violation

Allen contends the trial court's imposition of upper term sentences for possession of a firearm and possession of ammunition based on facts not found by the jury violated his constitutional right to a jury trial under Cunningham. We disagree.

In Cunningham, the United States Supreme Court held that California's determinate sentencing law violates a defendant's federal constitutional right to a jury trial by giving the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper-term sentence. (Cunningham, supra, 127 S.Ct. at pp.864-865; see also People v. Black (2007) 41 Cal.4th 799, 805 (Black II).) The requirement of a jury finding, however, does not extend to a finding that a prior conviction occurred or "other related issues that may be determined by examining the records of the prior convictions." (Black II, at p. 819.) "[I]mposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Id., at p. 816.)

Here, the trial court properly imposed the upper term sentence solely on Allen's record of prior convictions. (Black II, supra, 41 Cal.4th at pp. 816, 818.) Allen had two sustained juvenile petitions for robbery and possession of marijuana and false identification to a police officer, and one adult conviction for possession of marijuana. The court stated that, because Allen was only 22 years old, he had not had time to accumulate an adult record, but his juvenile record was escalating. "His conduct is increasingly worsening. His conduct in his current offense, having very heavy artillery, ammunition, weapons and bullet proof vest located in his home . . . greatly concerns the

court." The court also found "no mitigating circumstances whatsoever."

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

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Jack W. Morgan, Judge

Superior Court County of Los Angeles

______________________________

Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller, Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

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