P. v. Whitney
Filed 1/28/13 P. v. Whitney CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JAMION LAMARR WHITNEY,
Defendant and
Appellant.
G045762
(Super. Ct.
No. 09SF1121)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of Orange County,
H. Warren Siegel, Judge. (Retired judge
of the Orange County
Super. Ct.,
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Melanie K. Dorian, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Jamion Lamarr Whitney was tried and convicted of five counts arising out of two
separate jewelry store heists. As to a November 20, 2009 incident at a
Kevin Jewelers store, a jury convicted defendant of (1) grand theft (Pen. Code,
§ 487, subd. (a))
title="">[1]
and (2) second degree commercial burglary (§§ 459, 460, subd. (b)). As to a November 30, 2009 incident at a Neiman Marcus store,
defendant was convicted of (3) second degree commercial burglary, (4) grand
theft, and (5) carrying a concealed dirk or dagger (§ 12020, subd.
(a)(4)). In a bifurcated proceeding,
defendant admitted a prior prison term pursuant to section 667.5, subdivision
(b). The court sentenced defendant to
four years and four months in prison.
On
appeal, defendant asserts prejudicial error occurred with regard to (1) the court’s
refusal to sever the counts relating to the two separate incidents, (2)
admonitions by the court during defendant’s opening statement pertaining to
defendant’s potential testimony, and (3) alleged prosecutorial misconduct
during closing argument. Finding no
error or prosecutorial misconduct, we affirm the judgment.
FACTS
At
approximately 5:30 p.m., on November 20, 2009, Ali Tofighi was working at Kevin
Jewelers in the Shops at Mission Viejo.
A “customer came in, she was asking for the biggest diamond I had, over
2 carat diamond. So I showed her the
diamond. [¶] And I had [another] diamond in my hand. She was on the phone. And after like 30 seconds she grabbed the
other diamond and she ran away.†The
combined retail value of the two rings taken by the woman was approximately
$100,000. Tofighi chased the woman and
tackled her near the mall exit. Tofighi
bumped his head on the wall, resulting in bleeding from his head and ear. The rings fell to the ground and were
retrieved by a passerby who handed them to Tofighi. After mall security arrived, the woman ran
out the front door of the mall. Tofighi
identified Danna Campster as the perpetrator in a photographic lineup presented
to him by police.
Although
Tofighi asked the mall security guard to arrest Campster, the guard did not try
to stop her because it was against his firm’s policy to touch mall
visitors. Instead, the guard followed
Campster outside into the parking lot.
Campster entered a “maroon Toyota Camry†with tinted windows. The driver was a black male, but the security
guard could not see his face. On
cross-examination, the guard conceded the driver “could have been a dark
Latino.†The car pulled away
quickly. At trial, the guard remembered
seeing the letters “NDR†on the license plate.
Although the guard told a police officer after the incident that the car
had white paper license plates (and did not mention the letters“NDRâ€), the
guard did not recall his statements to police.
At
approximately 1:30 p.m., on November 30, 2009, Debbie Jereczek was working as a
sales associate in the precious jewelry department at Neiman Marcus in the
Fashion Island mall. A young woman, who
appeared to be talking on a cell phone, asked to see a Cartier watch priced at
$53,000. The young woman was by herself
in the store. After being presented with
the watch, the young woman “turned around and ran out the door†in “a flash.†Video evidence confirmed Jereczek’s
description of the event.
A
Newport Beach police officer, after meeting with Neiman Marcus’s loss
prevention agent and reviewing video footage, “broadcasted a description of the
vehicle depicted in the video to patrol units so they could begin looking for
the vehicle and the suspects.†A patrol
officer pulled over a red Toyota Camry 15 minutes later. A black male was driving the vehicle. The vehicle had tinted windows and paper
license plates, both of which provided reason to pull over the vehicle.
his partner detained the driver (i.e., defendant), who confirmed there was a
female in the vehicle. When ordered out
of the vehicle, Campster sat up in the backseat. A pat down search revealed a
seven-and-one-half inch folding knife with a three-inch blade in the possession
of defendant. The knife could be opened
and locked into place with a “flick of the wrist.†Photographs were admitted into evidence
showing the vehicle in which defendant was arrested and the opened vehicle
trunk, which contained a screwdriver and the vehicle’s license plates.
Meeting
with the police after they had apprehended the suspects, Neiman Marcus employee
Jereczek identified Danna Campster as the woman who had taken the Cartier
watch. The police recovered a watch from
Campster. Campster was given a plastic
bag and a private holding cell so she could “retrieve†the property while a
female employee stood nearby; the record does not state specifically from where
Campster retrieved the watch. The watch
recovered from Campster was the Cartier watch taken from the Neiman Marcus
store.
The
defense did not call any witnesses to testify.
Defendant exercised his constitutional right not to testify. Prior to trial, and against the advice of
counsel, defendant sought to have Campster subpoenaed to testify in defendant’s
case. The court denied defendant’s
motion for a continuance to subpoena Campster, who was incarcerated in state
prison.
DISCUSSION
Originally,
two complaints were filed against defendant based on the two separate thefts at
Kevin Jewelers and Neiman Marcus. The
two cases were consolidated in May 2010.
In June 2011, defendant moved to sever the Kevin Jewelers counts from
the Neiman Marcus counts. The court
denied defendant’s motion to sever.
Defendant contends on appeal that the court abused its discretion by
denying his motion to sever because the evidence against him was much stronger
with regard to the Neiman Marcus incident, in which he was arrested in the car
with Campster immediately after the theft.
“[B]ecause
consolidation or joinder of charged offenses ordinarily promotes efficiency,
that is the course of action preferred by the law.†(Alcala
v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) Here, it is uncontested
that the crimes alleged are of the same class and the statutory requirements
for consolidation were satisfied. (See
Cal.4th 830, 855.)
name="_ftnref3" title="">[3] A trial court abuses its discretion by
refusing to sever properly consolidated counts only when a strong showing of
undue prejudice has been made by a defendant.
(People v. Soper (2009) 45
Cal.4th 759, 773.)
Appellate
courts consider several factors in deciding whether a trial court has exceeded
the bounds of reason and thereby abused its discretion in denying a severance
motion: “‘(1) the cross-admissibility of
the evidence in separate trials; (2) whether some of the charges are likely to
unusually inflame the jury against the defendant; (3) whether a weak case has
been joined with a strong case or another weak case so that the total evidence
may alter the outcome of some or all of the charges; and (4) whether one of the
charges is a capital offense, or the joinder of the charges converts the matter
into a capital case.’†(
“[I]f
evidence underlying the offenses in question would be ‘cross-admissible’ in
separate trials of other charges, that circumstance normally is sufficient,
standing alone, to dispel any prejudice and justify a trial court’s refusal to
sever the charged offenses.†(
But one-way admissibility (rather than two-way cross-admissibility) may
be sufficient to show the lack of prejudice.
(Ibid.) “[E]ven the complete absence of cross-admissibility
does not, by itself, demonstrate prejudice from a failure to order a requested
severance.†(Ibid.)
title="">[4]
The
question of cross-admissibility is addressed under the familiar rubric of
Evidence Code section 1101. Despite its
relevance, “evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified
occasion,†is inadmissible. (
Cal.4th 380, 393, superseded on other grounds by Evid. Code, § 1108; see
also Evid. Code, § 1101, subd. (a).)
But “[n]othing . . . prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . . ) other than his or
her disposition to commit such an act.â€
(Evid. Code, § 1101, subd. (b).)
Here,
evidence of the Neiman Marcus incident would be admissible in a hypothetical
separate trial for the Kevin Jewelers incident.
The Neiman Marcus incident tends to show the identity of the getaway
driver in the Kevin Jewelers incident and to show the driver in the Kevin
Jewelers incident intended to abet a crime that was part of a common scheme
with Campster to rob mall jewelry stores.
In the Kevin Jewelers theft, a black man drove Campster away in a maroon
(i.e., dark red) Toyota Camry with paper license plates and tinted
windows. Following the Neiman Marcus
theft, Campster and defendant were arrested in a red Camry with paper license
plates and tinted windows. The thefts
both occurred at shopping malls in Orange County within the course of two
weeks. Both thefts featured Campster,
apparently distracted by a cell phone conversation, requesting to see very
expensive jewelry and running away with it once she was able to get her hands
on it. (See People v. Robinson (1995) 31 Cal.App.4th 494, 503 [presence of
same accomplice at prior uncharged arson and charged arson was distinctive mark
tending to show defendant was present at charged arson].) This is a textbook case in which evidence of
another very similar crime would be admissible to prove identity, intent, or
common scheme. (See People v. Ewoldt,
It
is perhaps less clear that evidence pertaining to the Kevin Jewelers incident
would be admissible in a hypothetical trial relating solely to the defendant’s
part in the Neiman Marcus incident. But
we need not resolve this dispute. Our
consideration of the other relevant factors suggests this is not a case in
which the court abused its discretion by denying defendant’s motion to
sever. The two incidents at issue are
very similar and neither incident is particularly likely to inflame the jury
more than the other. Although the Neiman
Marcus case is stronger because defendant was caught red handed, the Kevin
Jewelers case was also very strong with the sole exception of the
identification of defendant as the getaway driver. As stated above, in an independent trial of
the Kevin Jewelers case, evidence pertaining to the Neiman Marcus incident
would be admissible to prove identity.
And finally, capital punishment considerations are entirely irrelevant
to the situation at hand. In sum, the
substantial benefits of consolidation significantly outweighed any danger of
undue prejudice to defendant. (See
Cal.4th at pp. 775, 780-783.)
In
his opening statement, defense counsel conceded Campster had committed “several
snatch and grabs†and defendant “was the driver†on November 30, 2009. Defense counsel then provided an explanation
for why defendant was in the vehicle with Campster following the Neiman Marcus
theft — basically, he was romantically interested in Campster and agreed to her
request to drive her to the mall in a borrowed car to do some shopping. The prosecutor objected and called for an
offer of proof after defense counsel indicated Campster told defendant, “I am
going to go in and do some Christmas shopping.â€
In front of the jury, the court stated, “Well, this is what counsel
proposes to prove, ladies and gentleman.
You are going to have to determine whether or not it is true. And if there is no testimony that supports
the statements, then you can treat it accordingly. Go ahead, counsel.†Defense counsel continued to provide an
explanation as to defendant’s alleged knowledge and state of mind when he was
at the Fashion Island mall on November 30, 2009. The prosecutor again objected. The court asked whether Campster was going to
be a witness. Defense counsel
volunteered that defendant’s “beliefs are something I can get into if he is
going to be a witness in this case.†The
court asked if defendant was going to testify, and counsel responded, “At this
point that is the intent.†The court
instructed counsel to proceed, and further admonished the jury: “And again, ladies and gentlemen, opening
statements [are] only what counsel thinks the evidence is going to show. If it doesn’t turn out that way, that is
something you can consider.†Defendant
did not object to the court’s comments at the time of this exchange or ask that
the issue be discussed out of hearing of the jury.
As
previously noted, defendant did not testify.
Defendant moved for a mistrial at the close of the evidence based on an
argument that error had occurred during opening statement under
380 U.S. 609 (Griffin). Griffin
held the Fifth Amendment “forbids either comment by the prosecution on the
accused’s silence or instructions by the court that such silence is evidence of
guilt.†(Griffin, at p. 615.)
According to defendant, the prosecutor’s demand for an offer of proof
and the court’s questioning forced defense counsel to highlight in front of the
jury that defendant planned to testify.
Once defendant opted not to testify, the court’s comments retroactively
amounted to a Griffin error because
they suggested defendant had the burden to testify and prove his mental state.
The
court denied the motion, noting that nothing said during the opening statement
exchange was inconsistent with standard principles of criminal law
jurisprudence (e.g., statements of attorneys are not evidence, defendant has a
right to testify or not testify). The
court subsequently instructed the jury with CALCRIM No. 222
and CALCRIM No. 355,
name="_ftnref7" title="">[7]
standard jury instructions on the relevant points of law.
Even
assuming defendant did not forfeit his contention of Griffin error by failing to object to the court’s commentary at the
time it was made, we find no error occurred.
Neither the court nor the prosecutor made any comment with regard to
defendant’s right to remain silent at trial.
It was legitimate for the prosecutor and the court to ascertain whether
defense counsel had a good faith basis for stating the evidence would show
Campster made specific statements to defendant that misled him into thinking it
was an ordinary shopping trip to the mall.
(Cf. People v. Romero (2007)
149 Cal.App.4th 29, 44 [approving of court’s conditioning references to
self-defense by defense counsel in opening statement to expectation that
defendant would testify].) In response
to questioning about Campster, defense counsel volunteered that defendant
intended to testify. The court’s
admonitions to the jury accurately stated the law with regard to opening
statements of counsel, and did not differentiate between the potential
testimony of defendant, Campster, or any other witness. The Griffin
“prohibition ‘“does not extend to comments on the state of the evidence or on
the failure of the defense to introduce material evidence or call logical
witnesses.â€â€™â€ (People v. Hughes (2002) 27 Cal.4th 287, 393.) Because no Griffin error occurred, the court obviously did not abuse its
discretion when it denied defendant’s motion for mistrial. (People
v. Dunn (2012) 205 Cal.App.4th 1086, 1094 [denial of mistrial motion
reviewed for abuse of discretion].)
“‘A
prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the
the trial with such “‘unfairness as to make the resulting conviction a denial
of due process.’†[Citations.] Under state
law, a prosecutor who uses deceptive or reprehensible methods commits
misconduct even when those actions do not result in a fundamentally unfair
trial.’†(People v. Lopez (2008) 42 Cal.4th 960, 965.) “‘As a general rule, 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.’†(People
v. McDowell (2012) 54 Cal.4th 395, 436.)
Defendant
points to a series of comments by the prosecutor during closing argument as
instances of prosecutorial misconduct.
First, defendant objected to the prosecutor describing the Kevin
Jewelers getaway car as “red or maroon.â€
The security guard testified the car was maroon. The court overruled the objection. The prosecutor then downplayed the difference
between red and maroon.
Second,
summarizing the Neiman Marcus incident in closing argument, the prosecutor
stated that Campster hid the watch “in a very personal spot.†Defendant objected that the prosecutor was
stating facts not in evidence. The
inference apparently drawn by the prosecutor was that Campster hid the watch in
her undergarments or a body cavity (because she was provided a plastic bag and
a private room in which to “retrieve†the watch). But the precise location of the watch was not
in evidence.
Third,
the prosecutor allegedly made improper comments on the burden of proof by
stating, “On [the Kevin Jewelers] case, . . . defense is going to have to argue
two things to you . . . . [¶] They have to argue that the driver didn’t
know what Miss Campster was doing; and, even though that driver didn’t know, it
still wasn’t me. Two arguments on that
first date of violation. [¶] The argument on the second date of violation
[at Neiman Marcus] has to be . . . ‘I didn’t know.’†According to defendant, by stating that the
defense team “ha[s] to†make certain arguments, the prosecutor wrongly
suggested defendant had a burden to prove his innocence. Defendant did not object to this statement.
Fourth,
the prosecutor referred to a robbery count pertaining to the Kevin Jewelers
incident that was dismissed prior to opening statement. The jury, which had heard about the robbery
count during initial proceedings, was told before trial that the prosecutor had
dismissed the count. The jury was also
instructed by the court (along with other posttrial jury instructions) not to
consider the robbery count. The
prosecutor mentioned during her closing argument that the jury was not deciding
whether a robbery occurred in this case, but simultaneously suggested the
reason defendant had a knife was to protect property obtained during the crimes
at issue. Defendant did not object to
any of the allegedly wrongful mentions of robbery.
Fifth,
in the prosecutor’s rebuttal and in reference to arguments by defense counsel
that it was not proven that defendant’s knife was concealed or that defendant
knew about Campster’s planned theft, the prosecutor stated, “[Defense counsel]
is a good attorney, he has tried a lot of felonies, he makes good
arguments. So, I have to
respond . . . . [¶] Confusion by design. Talked about a lot of things — some
relevant . . . to latch on to one thing and get
sidetracked from what the real issues in
this case are. That is carefully orchestrated,
it is intentional. Good lawyers know
what they are doing. He knows what he is
doing. [¶] When you have the facts, you argue the facts;
when you have the law, you argue the law; and when that fails, you talk about
everything else to see if one person gets distracted. That is just classic lawyering.†The prosecutor also contrasted defense
counsel’s concession during opening argument (“Mr. Whitney had a knife in his
pocket that dateâ€) with defense counsel’s denial in closing argument that
defendant had a concealed knife. The
prosecutor then stated it was “unreasonable†to argue that defendant did not
know he was the getaway driver for a property crime. Defendant did not object to any of these
statements.
Sixth
and finally, the prosecutor referenced the victims in this case: “Crimes like this do have impact on
people. There are victims in this
case. [¶] And they are not life-long traumatized. They didn’t come in here crying or anything
like that, but they are real victims. It
has an impact on people when something like that happens. It shakes you up. It shakes your confidence in sales. [¶] It
is important now that he be held responsible for what he did. And I would ask you to find him guilty on all
of the remaining counts . . . .†Defendant
did not object to these statements.
As
to allegedly misstating the evidence by referencing a red (rather than maroon)
car and indicating Campster retrieved the watch from a very personal spot, no
misconduct occurred. Maroon is fairly
understood to be a shade of red.
Moreover, based on the circumstances described, one could infer the
watch was hidden inside Campster’s undergarments or body. These statements by the prosecutor were fair
descriptions of the evidence and inferences taken therefrom, not misstatements
of the evidence.
Defendant
forfeited the latter four categories of alleged misconduct by failing to object
and to request curative admonitions at trial.
(People v.
But even assuming these issues have not been forfeited, we find no
misconduct occurred. The prosecutor’s
statements about defense counsel’s arguments were likely understood by the jury
to mean the evidence proved defendant’s guilt of each charged offense beyond a
reasonable doubt. (See
Cal.4th 1158, 1203 [“we must view the statements in the context of the
argument as a wholeâ€].) The jury likely
did not conclude the prosecutor was impugning the integrity of defense counsel
or trying to shift the burden of proof to defendant. And by mentioning the employee victims of
defendant’s offenses, the prosecutor did not invite the jury to view the crime
through the eyes of the victim; instead, she merely described the offenses and
illustrated the seriousness of the offenses.
(See People v. Martinez (2010)
47 Cal.4th 911, 956-957 [although appeals to sympathy for victims are
improper, prosecutor may describe effect of criminal conduct inflicted on
victims].)
Finally,
defendant asserts the cumulative effect of the court’s errors and the
prosecutor’s misconduct resulted in an unfair trial. But no error or misconduct occurred, and
therefore no prejudice could accumulate.
(People v. Phillips (2000) 22
Cal.4th 226, 244.)
DISPOSITION
The
judgment is affirmed.
IKOLA,
J.
WE CONCUR:
BEDSWORTH,
ACTING P. J.
THOMPSON, J.
All statutory
references are to the Penal Code, unless cited otherwise.
The police officer’s
testimony was vague as to whether the red Camry was the vehicle described in
the police broadcast and whether the red Camry was pulled over by the officer
for this reason or merely because the car had paper license plates and tinted
windows. The Neiman Marcus loss
prevention agent testified that it was unclear what happened with Campster once
she left the Neiman Marcus store.
Defense counsel established that there was a white car on the video at
the same time that Campster was leaving the store. Apparently, there was no footage of Campster
actually getting into a particular vehicle.
