Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV802204. Raymond L. Haight III, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Tami Falkenstein Hennick and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
Here unfolds a cautionary tale about the dangers of new friends and the Internet for both victims and perpetrators.
Andrew Paladino first became acquainted on-line with defendant Clinton Jackson, portraying himself as “Super-Thugg,” on airG.com, a mobile social network provider. When the two men made plans to meet and smoke marijuana, defendant lured Paladino to an apartment parking lot, pulled a gun on him, and relieved him of $60 and his cell phone. Paladino was able to identify defendant, in part because his on-line profile for Super-Thugg included his photograph, and also because Super-Thugg sent Paladino a gloating message immediately after the robbery.
A jury convicted defendant of second degree robbery (§ 211) and unlawful possession of a firearm by a felon. (§ 12021, subd. (c)(1).) Additionally, the jury found true the allegation concerning the use of a firearm in the commission of the robbery. (§ 12022.53, subd. (b).)
The court sentenced defendant to a total prison term of 13 years: three years for robbery; two years concurrently for unlawful firearm possession; and a 10-year enhancement for the firearm use.
On appeal, defendant raises a number of issues involving the firearm enhancement, the pretrial identification, CALCRIM Nos. 220, 222, and 226, Griffin error, and evidence of other crimes. We reject defendant’s challenges and affirm the judgment.
Griffin v. California (1965) 380 U.S. 609.
2. Facts
After communicating on-line, Paladino arranged to meet defendant on August 6, 2008,to smoke marijuana. When Paladino called defendant’s phone number, defendant’s nephew, a minor, answered and gave the phone to defendant, who told Paladino to come to Alpine Street in Upland.
Paladino arrived at an apartment complex between 8:00 and 9:00 p.m. Defendant and his nephew approached Paladino and they discussed how to get some marijuana. Paladino parked his car and defendant got in the front seat and his nephew sat in the back.
As Paladino began to make a phone call, defendant and the nephew both pulled semi-automatic guns on him. Defendant snatched Paladino’s cell phone out of his hand. The nephew said, “You shouldn’t be talking so much shit on the Internet.” Defendant demanded, “Break out the cash.” Paladino removed $60 from his wallet and defendant grabbed it. Defendant also took the car keys. The two robbers told Paladino to “get the ‘F’ out of here.”
When Paladino objected to leaving without his car, defendant returned the keys. Paladino drove home and called the police.
Paladino also logged on to his airG account to check the profile for Super-Thugg and the accompanying photograph, which he printed out. Immediately after the robbery, Paladino received a final message from Super-Thugg in which he wrote, “MY BAD SICK, U JUST TALK 2MUCH SHIT. DA $ WASNT DA PRINCIPLE.”
Paladino interpreted the message to mean: “My bad, sick, you just talk too much shit. The money wasn’t the principle.”
On the morning of August 7, the police located defendant, his nephew, and three guns at an apartment at 470 Alpine by tracing the cell phone number defendant had given Paladino.
3. Firearm Use Enhancement
Pursuant to section 12022.53, subdivision (b), the court imposed a 10-year enhancement for personal use of a firearm.
The amended information charged that “a principal personally used a firearm, a handgun, within the meaning of Penal Code sections 12022.53(b) and (e)(1).” Because this was not a gang-related case pursuant to section 12022.53, subdivision (e)(1), the charge should have been that defendant, not a principal, “personally” used a firearm, citing only section 12022.53, subdivision (b). The error was carried forward into the verdict form which stated: “We, the jury in the above-entitled action, find as to Count I that a principal personally used a firearm, a handgun.”
On the other hand, the court correctly instructed the jury that the People had to prove that defendant “personally used a firearm.” Furthermore, the prosecutor argued: “When the robbery took place, was a gun used?... [¶]... [¶] And Mr. Jackson himself must have used the gun. Okay. So guilty on the robbery, then guilty of the enhancement that he personally used a firearm during the robbery.”
Nevertheless, defendant argues on appeal that he was denied due process because the amended information did not give notice that he was being charged with personal use of a firearm and the jury did not make that finding. (§§ 1170.1, subd. (e); 12022.53, subd. (j); People v. Mancebo (2002) 27 Cal.4th 735, 742-752.)
First, we venture to say that the jury had no understanding whatsoever of a distinction between defendant personally using a firearm and a principal personally using a firearm. Throughout the case, no mention was made of a principal using a firearm to benefit a gang—only the personal use of a firearm by defendant. The jury was not instructed about a principal, such as defendant’s nephew, as being distinct from defendant himself. Instead, the court instructed and the prosecutor argued that the issue for the jury to decide was whether defendant, not anyone else, personally used a firearm. Meanwhile, although defendant argued that no robbery had occurred, he did not attempt to challenge the firearm enhancement.
We deem defendant’s argument about due process to be disingenuous. Contrary to defendant’s repeated assertions, the amended information did refer to personal firearm use as a violation of section 12022.53, subdivision (b). The only problem we confront is the verdict’s reference that “a principal personally used a firearm.” But, based on the evidence, instructions, and argument, the jury must have interpreted the foregoing to refer to defendant’s personal use of a firearm.
Defendant relies on cases which are distinguishable because they involve different circumstances, such as the complete failure to plead the required allegation. (People v. Mancebo, supra, 27 Cal.4th at pp. 738-739, 751 [multiple victim circumstance not pleaded]; People v. Hernandez (1988) 46 Cal.3d 194, 208-209.) Nor is this case comparable to cases in which the pleadings, instructions, and verdicts involving principal use could not support a personal use enhancement. (People v. Najera (1972) 8 Cal.3d 504, 512; People v. Wandick (1991) 227 Cal.App.3d 918, 926-927.)
In the present case, the personal use firearm enhancement was pleaded and the jury received appropriate instruction and argument about personal use. Defendant had notice and opportunity to prepare for and present his defense. (People v. Neal (1984) 159 Cal.App.3d 69, 72-73.) The enhancement was properly imposed.
4. Pretrial Identification
The same night Paladino reported the crime, the police conducted a field lineup of two individuals who had been detained but Paladino did not identify them as defendant.
The day after the robbery, August 7, Paladino could not identify defendant in a photo lineup that included defendant. On October 30, Paladino identified defendant immediately in a live lineup of six men. Paladino explained it was easier to recognize defendant in person—based on his expressions, mannerisms, demeanor, and height—rather than from a one-dimensional photograph. During the trial in November 2008, Paladino recognized defendant’s photograph and identified him in court.
The two key questions are whether the lineup was too suggestive and whether the identification was otherwise reliable: “In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Kennedy (2005) 36 Cal.4th 595, 610.)
Defendant contends the in-person lineup in October, a few days before trial, was unduly suggestive: “‘The question is whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ (People v. Carpenter (1997) 15 Cal.4th 312, 367.)” (Cunningham, supra, 25 Cal.4th at p. 990.) The photographs of the live lineup show that two men were noticeably taller than the four other men, including defendant. Defendant and one of the taller men had less facial hair but fuller hair styles than the other four. Defendant was also the only man who appeared in both the photographic lineup and the live lineup. But having reviewed the photographs, we independently determine there was nothing about the lineup that caused defendant to “stand out” especially from the others. (People v. Kennedy, supra, 36 Cal.4th at pp. 608-609.)
We also find Paladino’s identification of defendant to be reliable, considering the relevant factors. (People v. Cunningham, supra, 25 Cal.4th at p. 989.) When they first met, the interaction between the two men was friendly and cordial, allowing Paladino ample opportunity to observe defendant. Paladino was able to describe defendant accurately to the police. He did not confuse defendant with other possible suspects or misidentify him. When Paladino identified defendant at the live lineup in October, he was completely certain, especially because of the distinctive way defendant tilted his head.
Because there was no error in the pretrial lineup, we do not need to discuss defendant’s related claim of ineffective assistance of counsel.
5. Instructional Error
Defendant argues that CALCRIM No. 220, together with CALCRIM No. 222, misinstructed the jury about the meaning of reasonable doubt. Similar arguments have been made and rejected by a host of courts of appeal. (People v. Zavala (2008) 168 Cal.App.4th 772, 781; People v. Garelick (2008) 161 Cal.App.4th 1107, 1119; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Herndandez Rios (2007) 151 Cal.App.4th 1154, 1567-1157.) We join our fellow courts in declining defendant’s challenge to CALCRIM No. 220.
Defendant also objects to CALCRIM No. 226, which directs jurors to use their common sense and experience in judging the credibility of witnesses. Defendant characterizes the danger as inviting jurors to consider matters outside the record, citing People v. Holloway (1990) 50 Cal.3d 1098, 1108, in which a juror read newspaper articles that discussed a defendant’s prior record.
Defendant’s exact argument, including his reliance on People v. Bickerstaff (1920) 46 Cal.App. 764 and People v. Paulsell (1896) 115 Cal. 6, was refuted in People v. Campos (2007) 156 Cal.App.4th 1228, 1238-1240, a case which defendant does not address in any meaningful way.
We adopt the reasoning of Campos: “To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror’s background, experience and reasoning must necessarily provide the backdrop for the juror’s decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience.... CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses’ credibility.
“Furthermore, other instructions given to jurors make clear that the term ‘common sense and experience’ is not a license to consider matters outside of the evidence. Jurors were instructed that they must decide the facts based on the evidence presented (CALCRIM No. 200), that they were not to conduct research or investigate the crime (CALCRIM No. 201), that their determination of guilt had to be based on evidence received at trial (CALCRIM No. 220), that they were only to consider evidence (sworn testimony and exhibits) presented in the courtroom (CALCRIM No. 222), that they had to decide whether facts have been proved based on ‘all the evidence’ (CALCRIM No. 223), that they should review all the evidence before concluding that the testimony of one witness proves a fact (CALCRIM No. 301) and other instructions emphasizing the exclusive significance of the evidence (CALCRIM No. 302).” (Campos, supra, 156 Cal.App.4th at p. 1240.)
6. Griffin Error
Defendant complains that the prosecutor committed Griffin error when, during closing argument, he commented that defendant did not protest his innocence in a recorded telephone call made by defendant from jail to a woman. Specifically, the prosecutor said, “The first time you [defendant] talked to loved ones and you’re falsely accused of a crime, you’re falsely arrested, what would you be saying every other word? I can’t believe I’m here. I couldn’t -- I didn’t do anything wrong. I got set up. It’s the other guy, whatever. [Defendant] never says that. He talks about [how] I think I can beat this. This is all they got on me. They have to get these witnesses in. I don’ t think they can do that.”
Griffin error, of course, occurs when the prosecutor offers impermissible comment, inference, or suggestion about a defendant’s failure to testify. (Griffin v. California, supra, 380 U.S. at p. 614; People v. Hardy (1992) 2 Cal.4th 86, 153-154; People v. Vargas (1973) 9 Cal.3d 470, 475-476.)
In the present case, the prosecutor did not comment explicitly about defendant not testifying. Instead, he asked the jury to consider why defendant did not deny his culpability in a recorded telephone conversation with another person. Defendant must show it is reasonably likely the jury understood the prosecutor’s remarks to refer to defendant not testifying. (People v. Clair (1992) 2 Cal.4th 629, 663.)
We deem it highly unlikely the jury would have construed the prosecutor’s remark about defendant’s statements in the phone call as a comment about defendant not testifying. The court, ruling on the defense objection, cautioned the jury that “everybody understands this is just what he’s saying in the telephone conversation. [¶]... [¶]... There can’t be any reference to the fact the defendant hasn’t testified in the trial. Make sure you consider it for that reason.” Later, the court gave CALCRIM No. 355, instructing the jury not to consider for any reason defendant’s failure to testify.
Even so, any error was harmless: “Reversal is warranted only ‘“where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for the conviction, and where there is evidence that could have supported acquittal.”’ [Citations.]” (Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892, 912.) Here, the prosecutor’s comments were isolated statements, and they were minimal in comparison with the weight of the evidence presented against defendant: “‘[I]ndirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citations.]’” (People v. Bradford (1997) 15 Cal.4th 1229, 1340, citing People v. Hovey (1988) 44 Cal.3d 543, 572.)
7. Other Crimes
In the recorded telephone call, defendant also talked rather incoherently about robberies that had occurred in the apartment complex where he had been living and the guns (“three burners”) found at his apartment. He expressed worry the police would try to charge him. An example of defendant’s language is as follows: “We have conjugal, full contact, all that shit man and they can’t a mother fucker in here forever ‘cause I don’t give a fuck how many robberies they try to charge me with homey. [Sic.]”
Instead of granting defense counsel’s request that the tape be redacted, the court admonished the jury that the tape included irrelevant or personal matters.
To the degree one can make any sense of what defendant was saying, his vague and brief references to robberies were not offered to prove defendant’s conduct on a specific occasion, are not prohibited by Evidence Code section 1101, subdivision (a), and were properly admitted under Evidence Code section 352.
The trial court’s decision to admit evidence under section 352 will be upheld on appeal absent a clear showing of abuse of discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) Here the court duly weighed the probative and prejudicial aspects of the tape and concluded the prejudice was very slight. The court also admonished the jury to focus its attention on the evidence pertaining only to the present case. It was not abuse of discretion to admit the taped telephone call because it was relevant to show defendant was the perpetrator, together with his nephew, and to corroborate the police testimony about finding three guns and cell phones in defendant’s apartment.
Any error was harmless because the single reference to “robberies” was so brief as to be almost meaningless and defendant was not apparently charged with any other crimes as he feared might happen. Furthermore, the evidence against defendant was overwhelming. After the robbery, defendant inexplicably continued to communicate with the victim, taunting him through his airG account. Defendant’s cell phone number was the same as the one he had given to Paladino before the robbery. Even if the police never recovered Paladino’s stolen cell phone, they found guns matching the description given by Paladino. Paladino identified defendant without hesitation from a live lineup.
8. Disposition
Without any hesitation, we affirm the judgment.
We concur: Ramirez,P. J., King, J.