Opinion
B294625
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES DEJON NESBY, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING NO CHANGE IN THE APPELLATE JUDGMENT THE COURT:*
The opinion in the above-entitled matter filed on April 23, 2020 is modified as follows:
On page 15, second paragraph, fourth sentence, change count 9 to count 8, so that the sentence reads:
The jury found true as to counts 6 through 8 a principal was armed with a firearm during commission of the offense (§ 12022, subd. (a)(1))./s/_________
Appellant's petition for rehearing is denied. There is no change in the appellate judgment.
* PERLUSS, P. J. /s/_________
SEGAL, J. /s/_________
FEUER, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA099314) APPEAL from a judgment of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Affirmed as modified. Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
James Nesby appeals from a judgment entered after the jury convicted him of six counts of second degree robbery and related offenses arising from the robberies of two marijuana dispensaries in May 2014. The jury also found true Nesby used a firearm in the commission of the first robbery and a principal used a firearm in the commission of the second robbery. On appeal Nesby admits he robbed the second marijuana dispensary, but he contends he was not involved in the robbery of the first dispensary. Nesby argues the prosecutor's display of Nesby's booking photograph with the word "guilty" written across his face during the prosecutor's opening statement was prejudicial misconduct; the misconduct tainted the identification of him by a victim who was seated in the courtroom during the opening statement; the trial court abused its discretion in excluding evidence of another victim's misdemeanor vandalism conviction; insufficient evidence supported his convictions and firearm enhancements arising from the first robbery; and the trial court prejudicially erred by instructing the jury on flight after a crime.
As to sentencing, Nesby contends the trial court abused its discretion in denying Nesby's motion to dismiss the firearm enhancements. Nesby also contends, the People concede, and we agree the minute order and abstract of judgment must be corrected to conform to the trial court's imposition of the firearm enhancement on count 6 under Penal Code section 12022, subdivision (a)(1). We affirm the judgment as modified.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Second Amended Information
The second amended information charged Nesby, his cousin Leondre Nesby (Leondre), and Nesby's brother Tywon Nesby (Tywon) with five counts of second degree robbery (§ 211; counts 1-4 &10) and kidnapping to commit another crime (§ 209, subd. (b)(1); count 5) arising from the May 4, 2014 robbery of a San Pedro marijuana dispensary. As to each count, the information specially alleged Nesby, Leondre, and Tywon personally used a firearm (§ 12022.53, subd. (b)).
Because the defendants share the same last name, we refer to Leondre Nesby and Tywon Nesby by their first names to avoid confusion.
The trial court dismissed count 5 prior to trial.
As to the May 31, 2014 robbery of a Los Angeles marijuana dispensary, the information charged Nesby and Leondre with second degree robbery (§ 211; count 6), false imprisonment by violence (§ 236; count 7), second degree commercial burglary (§ 459; count 8), and assault with a firearm (§ 245, subd. (a)(2); count 9). The information specially alleged as to counts 6 through 9 Leondre personally used a firearm (§§ 12022.53, subd. (b) [counts 6-8], 12022.5, subd. (a) [counts 7-9]), and as to counts 6 through 8 a principal was armed with a firearm (§ 12022, subd. (a)(1)). B. The Prosecution's Case
1. The May 4, 2014 San Pedro robbery
On May 4, 2014 at approximately 6:00 p.m. Courtney Dale (count 3) was walking toward a marijuana dispensary in San Pedro when she noticed a bright orange Dodge Charger parked nearby that had two black stripes on the top of the hood. Tywon was sitting in the driver's seat. Leondre and Nesby exited the orange car and walked toward the alley entrance of the marijuana dispensary. When Dale arrived at the lobby of the dispensary, Leondre was at the lobby window, and Nesby was sitting in the lobby waiting area. Leondre showed his state identification card and medical marijuana recommendation to Hugo Rueda (count 1), an armed security guard responsible for checking new customers' documents before they could enter the locked showroom. Dale waited in line behind Leondre but entered the showroom before him because she was a returning customer. After Rueda checked Leondre's documents, Rueda buzzed him through the locked door into the showroom. When Rueda saw Leondre hold the door for Nesby, Rueda stepped out of his office and told Nesby he was not allowed to enter the showroom.
On June 19, 2014 Dale identified an orange Dodge Charger with no stripes on the hood as the car she saw on May 14, 2014. She wrote, "This looks like the car."
Leondre pointed a gun at Rueda's chest, Rueda put his hands up, and Leondre removed Rueda's gun from his holster. Leondre entered the showroom with his gun drawn and ordered Rueda and customers Dale and Melvin Harris (count 4), and sales clerks Brittany Cooper (count 2), Brooke Bell (count 10), and Alexander Boughner to get on the floor. Nesby entered through the door behind Leondre. Leondre then pointed the gun at Cooper, who was at the cash register finishing a sales transaction with Dale.
Dale testified Nesby came into the showroom with a black gun and "ordered everybody to stay down and to give up their cell phones." Likewise, Harris testified the second robber ran inside the showroom with a silver and black gun and said, "Everyone get down on the ground." The second robber added, "Throw your phone on the ground. We're not here for your shit. We're here to get paid." Rueda testified he did not see Nesby with a gun. But two days after the robbery he told Los Angeles Police Detective Ricardo Rivera the first two robbers pointed their guns at him as they entered the showroom.
Boughner testified Leondre's gun was silver; Dale testified the gun was chrome and black. Cooper saw one of the robbers with a silver or gray gun, but could not recall if both robbers had guns. Harris testified the first man (Leondre) ran into the showroom with one hand carrying a backpack, and the other hand toward his waistband.
Harris admitted he smoked marijuana an hour before the robberies and was high at the time of the robbery but testified it did not affect his memory or perception.
Dale heard her husband asking about her from the lobby. Leondre and Nesby took Dale's husband into the showroom and ordered him to get down on the floor as well. One or more minutes later, a third Black man, whom Dale identified as Tywon, entered the showroom with a large black duffle bag. He was dressed in a black shirt with the word "security" across the back.
On cross-examination, Dale testified she did not see Tywon's face when he was in the showroom, but she had seen his face when he was seated in the driver's seat of the car.
Dale and Harris handed over their cell phones, but Boughner did not. The second robber kicked the cell phones toward the couches. As the robbers went behind the counter, they saw Boughner lying on the ground. One of the robbers told Boughner, "Stop being a fucking hero." The robbers ordered Boughner to get up and lie down in the center of the room near Bell and Harris. Boughner testified everyone had thrown their cell phones in the center of the room, so when the robbers directed him to lie down in that area, he lay on top of the cell phones. The robbers again told Boughner to stop being a hero, made him move, and collected the cell phones.
According to Dale, one of the robbers picked Bell off the ground and pointed a gun at her. Then Dale "heard a gun cock." Harris, who was lying on the floor next to Bell, saw the robber grab Bell by her hair and pull her up. Cooper, who was lying on the floor facing Bell, also saw the robber put a gun to Bell's head and physically grab or push Bell to get her off the floor. A robber asked Bell to open the safe, but Bell said she did not know the code.
At trial, which occurred three years after the May 4, 2014 robberies, Cooper was unable to identify Nesby as one of the robbers.
The robbers took from Rueda his gun, his cell phone, and his iPod Touch. They also took Dale's and Harris's cell phones. In addition, the robbers took cash from the cash register where Cooper was ringing up the sale with Dale, over $3,000 worth of marijuana in glass Mason jars, and a computer and monitor from the lobby office. The entire incident took five minutes or less. When the robbers left, Cooper found Leondre's crumpled medical marijuana recommendation on the floor near her.
Two days later Detective Rivera prepared a six-pack photographic lineup containing Leondre's photograph in position 4. Detective Rivera read a photographic admonition and separately showed the six-pack photographic lineup to Rueda, Cooper, and Boughner. Each identified Leondre in position 4 as the first robber.
2. The May 31, 2014 Los Angeles robbery
On May 31, 2014 at about 5:30 p.m. Aidan Khan was working alone in a marijuana dispensary in Los Angeles. Khan opened the front door to allow a man to enter. The man had visited the dispensary for the first time a couple of weeks earlier. A second man, later identified as Leondre, tried to come inside the dispensary. Khan told him, "No. I'm sorry. It's only one person at a time." The first man said his friend had the cash, and he left the dispensary. Ten minutes later the first man returned, and Khan brought him into the showroom. As Khan was showing the man the marijuana products, the man pulled out a gun from his waistband and said, "Don't shout. Get on the ground or I'll shoot you." The man then put his gun on Khan's back and ordered him to open the front door. Khan complied, and Leondre entered holding a gun in his hand. The robbers again ordered Khan to get on the ground. While one of the robbers kicked open a locked door behind the counter, the other let Nesby into the dispensary. The robbers took marijuana worth approximately $20,000 from the safe, close to $400 in cash from the cash register, a desktop monitor, and Khan's backpack, laptop, and watch. Nesby asked Khan, "Where does this camera go? Show me the DVR." Khan lied and said the camera did not work. The camera captured the incident on video, which was played to the jury. After the three men left, Khan grabbed his cell phone and went outside. He saw the men get into a beige or gold four-door sedan, and the car drove away.
Khan contacted the police and gave a description of the car and a partial plate number. About three hours later, two police officers conducted a traffic stop of a car matching Khan's description. Nesby was the driver. Minutes later, two other police officers arrived with Khan to conduct a field showup. Khan identified Nesby as the third robber and indicated the car was the same vehicle that he saw leaving the dispensary. The police searched the trunk of the car and found two handguns in a handgun case—a loaded .40-caliber Smith & Wesson and an unloaded nine-millimeter Hi-Point handgun, along with two magazines. Khan identified the two handguns as the firearms used in the robbery.
3. The June 2014 searches and identifications
On June 1, 2014 police officers served a search warrant at Nesby's residence. They knocked on the front door, and Tywon let them in. The officers found marijuana plants and Khan's laptop in the backyard. The officers also found glass jars containing a substance resembling marijuana leaves in the master bedroom.
The next day Detective Rivera prepared a six-pack photographic lineup containing Nesby's photograph in position 6. Detective Rivera prepared the photographic lineup because Nesby was a suspect in the May 31, 2014 Los Angeles robbery; the two-tone handgun recovered from Nesby's vehicle matched the description of one of the handguns used in the May 4 robbery; and Nesby shared the same last name as Leondre. That day Detective Rivera showed the photographic lineup to Boughner and Cooper after providing a photographic admonition. Detective Rivera also prepared a six-pack photographic lineup containing Tywon's photograph in position 3.
Boughner identified Nesby as the second robber in the May 4 robbery. Boughner wrote on the admonition form, "He was the second person to come in. He also had a pistol. He held me at gunpoint[,] had me get up from the ground[,] then get up from around the counter and get on the floor in the middle of the room. I complied in fear of my life." Although Boughner could not identify Nesby at trial, he "was sure" he identified Nesby in the photograph lineup three years earlier because he signed the document. Boughner conceded he only looked at Nesby "[f]or a brief moment." During the robbery Boughner was lying face down with his hands stretched out, and he tried "to look as much as possible without getting hurt." He was able to get "intermittent peeks" at Nesby.
Cooper was only able to "glance" at Nesby, and she was not able to identify him in the photographic lineup. She identified Tywon as looking "familiar to [her] as one of the men that were involved in the robbery that night," but she was "unsure of which role he played."
On June 2 Tywon drove his Dodge truck to the southwest police station to retrieve his two-tone gun that police had recovered from Nesby's car. Because Cooper had selected Tywon from the six-pack photographic lineup, Detective Rivera asked the southwest police station to detain Tywon for questioning. After being read his Miranda rights, Tywon told Detective Rivera that he had worked as a security guard and owned a two-tone .40-caliber Smith & Wesson handgun.
Miranda v. Arizona (1966) 384 U.S. 436, 471.
While Tywon was at the police station, Los Angeles Police Detective Kevin Reynolds, who assisted Detective Rivera with the May 31 robbery investigation, searched Tywon's truck as part of an inventory search before it was impounded as evidence. Detective Reynolds noticed the truck had a strong odor of marijuana. He found a Mason jar that appeared to contain marijuana in the rear right passenger floorboard. He also found approximately $300 in cash and a key fob to another vehicle in the truck's console. While Detective Reynolds was conducting the inventory search, Tywon's fiancée arrived at the southwest police station in an orange Dodge Charger with two stripes on the hood. Detective Reynolds impounded the Dodge Charger and verified the key fob from Tywon's truck started the car.
On June 3 Rueda identified Nesby in the six-pack photographic lineup as the second robber who entered the showroom. Rueda wrote on the admonition form that Nesby "came behind suspect 1 [and] orderd [sic] everyone on the floor and proceed[ed] to take all medication, electronics, etc."
On June 17 Detective Reynolds showed Harris the six-pack photographic lineups of Nesby, Leondre, and Tywon. Harris did not identify Nesby, and he could not later identify him at trial. Harris identified Leondre as one of the robbers, writing on the admonition Leondre was "the one who came in and told everyone to put down their phones and to get down on the ground." He also identified Tywon as one of the robbers. Harris wrote on the admonition form that Tywon "ran in the door hunched over with hand on [waist] band[,] back pack covering face[,] running directly to store security and disarmed him." At trial Harris testified he "really didn't recognize anyone" in the photographs, but circled the photographs that "stood out to [him] the most."
On June 19 Detective Reynolds showed Dale a six-pack photographic lineup that contained Nesby in position 6. Dale identified a man in position 5 as one of the robbers. Dale correctly identified Leondre in position 4 in another photographic lineup as one of the robbers. Dale wrote Leondre "was the one who told everyone to get down on the ground with a gun in his [hand] and the gun was black and chrome." Dale also wrote Leondre held a gun to Bell's head. At Nesby and Tywon's preliminary hearing on September 24, 2014, Dale identified Nesby and Tywon as two of the robbers, but she could not remember their specific roles. Dale also identified Nesby as the second robber at trial. C. The Defense Case
1. Nesby's testimony
Nesby testified in his own defense, explaining that in 2014 he and his family lived in his mother's house. Nesby worked as a security guard at a shoe store on weekdays and other venues on some weekends. Nesby owned a black nine-millimeter Hi-Point handgun but had never bought ammunition for it. When Nesby needed a loaded weapon for a weekend security job, he borrowed Tywon's gun.
On May 4, 2014 Nesby, his wife, and his daughter went out for breakfast and ran errands in the morning. Nesby spent most of the afternoon at home, but he left at 4:00 p.m. to run errands and buy food. When Nesby returned about 45 minutes later, his mother was outside in her car. Shortly after 7:00 p.m. Nesby drove his wife to work. Then he went with his daughter to a movie theater in the City of Industry. They arrived at the movie theater a little after 8:30 p.m. and met his sister Latika and her husband. Tywon arrived at the movie theater 10 to 15 minutes after Nesby.
Nesby and Tywon's mother, Billie Hall, testified she returned home at 5:15 p.m. after visiting her daughter Latika Nesby (Latika) and Latika's husband at their hotel room. According to Hall, Nesby arrived home at 5:30 p.m. while she was in her car having a phone conversation with Latika.
Latika testified she and her husband arrived at the movie theater shortly before 8:30 p.m. Nesby and his daughter arrived at 8:40 p.m. A little later, Tywon, his fiancée, and Tywon's two sons joined them at the movie theater.
Nesby testified he was not involved in the May 4 robbery. But he admitted he robbed the Los Angeles marijuana dispensary on May 31, along with Leondre and a man named Kevin. Nesby drove the other two robbers to the dispensary in his wife's car. During the robbery he placed some marijuana in bags and took cash from the cash register. He did not display or use a gun. Further, the two guns that police officers found in his trunk were not used in the robbery. Nesby denied taking Khan's laptop. Another robber took Khan's laptop and left it in Nesby's car. Nesby threw the laptop in the backyard because he could not use it.
Nesby testified his photograph in position 6 in the six-pack photographic lineup depicted him wearing jail clothing, but he admitted during cross-examination the person depicted in position 1 also was wearing jail clothing.
2. Tywon's testimony
Tywon testified he was not working as an armed security guard in May 2014 because his right hand was injured in a January 19, 2014 car accident. He was able to hold a gun but was unable to make sudden movements. Tywon's fiancée owned an orange Dodge Charger with no stripes.
On the morning of May 4, 2014 Tywon visited his sister Latika and her husband in their hotel room and watched basketball with them. Tywon left between 6:45 p.m. and 7:20 p.m. to meet with his fiancée and children to go to the movie theater. Tywon and his family arrived at the movie theater after 8:30 p.m. that night, where they met with Latika, her husband, Nesby, and Nesby's daughter.
Latika testified Tywon arrived at her hotel room around 9:00 a.m and left between 7:00 and 7:15 p.m.
On the morning of June 1, 2014 Tywon went to his mother's house after learning Nesby had been detained. Approximately 10 minutes later police officers knocked at the door and told Tywon they had a search warrant to search the house. The next morning Tywon went to the police station to retrieve his two-tone black and silver .40-caliber Smith & Wesson handgun, which Nesby had borrowed from him. Detective Rivera arrested Tywon that day.
3. Expert testimony on witness identification
Dr. Mitchell Eisen, a psychology professor, testified as a defense expert on eyewitness memory and suggestibility. A witness will tend to remember unique haircuts, scars, tattoos, and piercings more than "typical, mundane features." A witness's memory is affected by discussing the event with other people and reconstructing a memory of the event, as well as focus on a weapon, the number of suspects, the length of time a witness has to view the perpetrator's face, and the passage of time. When multiple people witness the same event, it is common for them to provide differing sequences of events and different details because people will focus on different aspects of a traumatic event. Memory reports given closer in time to an event tend "to be more detailed, more accurate, and less likely to be affected by all of this other information that we encounter later that we may consider and update our memory to include."
If a witness recognizes the perpetrator in a six-pack photographic lineup, he or she will select that person within 25 to 30 seconds. If the witness is studying the six-pack photographic lineup, he or she is now comparing the photographs instead of selecting the perpetrator based on recognition. A photograph of a suspect wearing "jail county blues" in a photographic lineup is not suggestive where a witness has really good memory, but "would be a big deal" where a witness cannot recognize the perpetrator and is "looking for cues" during the identification process. When asked a hypothetical question in which a witness sees the prosecutor's opening statement that includes photographs of the same individuals the witness saw in earlier photographic lineups, but with the word "guilty" written across the individuals' faces, Dr. Eisen opined this would have a "bolstering effect," and further, "any information that [the witness] get[s] after the fact that confirms that [the witness's] decision was correct or that this is likely the culprit can dramatically affect [the person's] confidence, and through what is called hindsight bias, affect [the person's] memory judgments even more."
When a witness fails to select a perpetrator from a lineup, "[i]t means there is not a good enough match to memory for somebody to make a decision or to make a judgment." If the witness has a really good memory, then a "no-pick" means the witness cannot recognize the perpetrator among the individuals in the photographic lineup, and "[m]aybe it's not the guy." But Dr. Eisner added, "Sometimes we don't really have a good memory for the people we encounter, and a no-pick is not diagnostic in that regard." D. The Verdicts and Sentences
The jury found Nesby guilty as to the May 4 robbery of five counts of second degree robbery (§ 211; counts 1-4 & 10). As to each count, the jury found true Nesby personally used a firearm in the commission of the crimes (§ 12022.53, subd. (b)). As to the May 31 robbery, the jury found Nesby guilty of second degree robbery (count 6), false imprisonment by violence (§ 236; count 7), second degree commercial burglary (§ 459; count 8), and assault with a firearm (§ 245, subd. (a)(2); count 9). The jury found true as to counts 6 through 9 a principal was armed with a firearm during commission of the offense (§ 12022, subd. (a)(1)). The jury found Leondre guilty of the same offenses and that he personally used a firearm in both robberies. But it acquitted Tywon of all charges relating to the May 4 robbery.
The trial court sentenced Nesby to an aggregate term of 33 years eight months in state prison. The court denied Nesby's motion to strike the firearm enhancements. The court selected count 1 for the second degree robbery of Rueda as the base term. The court imposed the upper term of five years, plus 10 years for the firearm enhancement. On counts 2, 3, 4, and 10 for the second degree robberies of Cooper, Dale, Harris, and Bell, respectively, the court sentenced Nesby to one year (one-third the middle term of three years) plus three years four months (one-third of the 10-year firearm enhancement), for a consecutive term of four years four months on each count. For count 6 (second degree robbery of Khan), the court sentenced Nesby to one year (one-third the middle term of three years) plus four months (one-third the one-year firearm enhancement), for a consecutive term of one year four months. On count 7 for false imprisonment by violence, the court imposed the middle term of two years, plus one year for the firearm enhancement, but stayed the sentence pursuant to section 654. The court likewise imposed and stayed a three-year term on count 8 for second degree commercial burglary (the middle term of two years plus one year for the firearm enhancement), and the middle term of three years on count 9 for assault with a firearm.
Nesby timely appealed.
DISCUSSION
A. Nesby Forfeited His Claim for Prosecutorial Misconduct, and Any Error Was Harmless
1. Nesby forfeited his prosecutorial misconduct claim
At the end of her opening statement, the prosecutor displayed booking photographs of Nesby, Leondre, and Tywon with the word "GUILTY" (in red ink and large font) printed across each of their faces. The prosecutor told the jury, "Now, after hearing all of the evidence presented in this case from the various witnesses, I'm confident that you will find these three defendants guilty of the crimes charged in both robberies." Nesby argues showing the slide to the jury constituted prosecutorial misconduct because the slide was argumentative, inflammatory, and an improper attempt to lower the People's burden of proving its case beyond a reasonable doubt. However, Nesby forfeited his claim of prosecutorial misconduct by failing to object to the slide and to request a curative admonition. "'"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. Beck and Cruz (2019) 8 Cal.5th 548, 657; accord, People v. Hoyt (2020) 8 Cal.5th 892, 942.) Nesby argues objecting to the slide would have been futile because any objection would have drawn attention to the inflammatory slide. (See People v. Hoyt, at pp. 942-943 ["The lack of a timely objection and request for admonition will be excused only if either would have been futile or if an admonition would not have cured the harm"]; People v. Powell (2018) 6 Cal.5th 136, 171 [same].) But had Nesby's attorney objected, the trial court could have instructed the jury the opening statement was not evidence, Nesby was presumed innocent, and the prosecution had the burden to prove Nesby guilty. Nesby has not demonstrated these admonitions would not have cured the harm.
2. Nesby has not shown prejudicial error
Even if Nesby had not forfeited his claim of prosecutorial misconduct, he has not shown prejudicial error. "'"A prosecutor commits misconduct when his or her conduct infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact."'" (People v. Beck and Cruz, supra, 8 Cal. 5th at p. 657; accord, People v. Hoyt, supra, 8 Cal.5th at p. 943.) "'"A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct."'" (People v. Young (2019) 7 Cal.5th 905, 932-933; accord, People v. Tully (2012) 54 Cal.4th 952, 1010.)
Because we conclude Nesby has not shown prejudicial error, we do not reach his argument the failure to object constituted ineffective assistance of counsel.
Even if showing the slide constituted prosecutorial misconduct, Nesby fails to show it is reasonably probable a result more favorable to him would have been reached absent the misconduct. Before opening statements, the trial court instructed the jury, "An opening statement is not evidence. . . . Neither is it argument. Counsel are not permitted to argue the case at this point in the proceedings. An opening statement is simply an outline by counsel of what he or she believes or expects the evidence will show in this trial. Its sole purpose is to assist you in understanding the case as it is presented to you." Prior to closing argument, the court again instructed the jury, "Statements made by the attorneys during the trial are not evidence." In addition, the court instructed the jury, "You must not be biased against a defendant because he has been arrested for this offense, charged with a crime, or brought to trial." The court also properly instructed the jury on the prosecution's burden: "The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged." We presume the jury followed the trial court's instructions. (People v. Frederickson (2020) 8 Cal.5th 963, 1026; People v. Erskine (2019) 7 Cal.5th 279, 301.)
The People contend the slide did not constitute prosecutorial misconduct, relying on People v. Waldie (2009) 173 Cal.App.4th 358, 367. In Waldie, the prosecutor's laptop computer displayed "the word 'GUILTY,' which may have been briefly visible to the jury as it entered and exited the court during closing arguments." (Id. at p. 367.) The Court of Appeal concluded, "The unfortunate, but inadvertent and casual, display of a single word fairly characterizing the prosecutor's position does not qualify as intemperate, egregious, unfair, deceptive, or reprehensible conduct." (Ibid.) Unlike Waldie, the prosecutor here intentionally displayed booking photographs of defendants with the word "GUILTY" across their faces during her opening statement.
Moreover, Nesby admitted he committed the May 31 robbery with Leondre. In addition, Rueda and Boughner identified Nesby in the six-pack photographic lineup as the second robber, and Dale identified him at the preliminary hearing four months later as one of the robbers. By contrast, the identifications by Cooper and Harris of Tywon were more equivocal. Cooper said Tywon looked "familiar to [her]" as one of the robbers, but she was unsure what role he played. Harris testified he identified Tywon's photograph because "they asked me to identify a person" but added, "I really didn't recognize anyone." The weaker evidence placing Tywon at the first dispensary is consistent with the jury's acquittal of Tywon of all charges and shows the jury focused on the evidence, not the slides, because all three defendants' booking photographs had the word "guilty" written across their faces. B. The Trial Court Did Not Abuse Its Discretion in Denying Nesby's Motion for a Mistrial
1. Nesby's motion for a mistrial
During trial Nesby moved for a mistrial, contending Dale's in-court identification was tainted because she was present in the courtroom during the prosecutor's opening statement. Outside the presence of the jury, Dale testified she saw the prosecutor's opening statement, including the "guilty" slide, but she did not form any opinions based on what she heard, nor did the slides help her with identification of the defendants. Nesby's counsel argued Nesby would not get a fair trial given "the fact that [Dale] heard the opening statements, saw the pictures of the defendants, saw the defendants here in court and heard references to a changed appearance in 2014." Specifically, Dale "made two misidentifications one month after the robbery" yet was "very positive and forceful on the stand about the identification" of Nesby, Leondre, and Tywon.
The trial court denied the motion, explaining, "The court finds that this was not intentional. Certainly the [prosecutor] did not do anything inappropriate. I think this is just a witness [who] was curious, came up, ended up watching. No one was aware that she was there. Certainly she was exposed to everything that was stated in the opening statements. [¶] However, . . . it doesn't rise to the level of a mistrial, nor am I going to strike the witness's testimony. [¶] I think this is fodder for cross-examination." The court added, "[T]his is information that the I.D. expert can work with to mitigate perhaps the testimony or the powerfulness of Ms. Dale's testimony by giving . . . the expert the hypothetical that she was exposed to this information. [¶] The expert also, in my recollection, deals with people's confidence growing after multiple times of seeing someone. That can be dealt with; so I don't see that there is grounds for mistrial."
2. The trial court did not abuse its discretion in denying Nesby's motion for a mistrial
"A court should grant a mistrial '"only when a party's chances of receiving a fair trial have been irreparably damaged."' [Citations.] This generally occurs when '"'"the court is apprised of prejudice that it judges incurable by admonition or instruction."'"' [Citation.] We review the trial court's refusal to grant a mistrial for abuse of discretion." (People v. Johnson (2018) 6 Cal.5th 541, 581; accord, People v. Williams (2016) 1 Cal.5th 1166, 1185, 1187.)
Nesby contends Dale's inadvertent presence in the courtroom during the prosecutor's opening statement rendered her identification testimony unreliable because she saw the slide with the "guilty" banner and the surveillance video showing Nesby robbing another marijuana dispensary. But Nesby's attorney had an opportunity to address this on cross-examination and in his examination of Dr. Eisen. On cross-examination, Dale testified she heard the prosecutor's opening statement and saw the slides, including the photographs of defendants. No one informed Dale she was not permitted in the courtroom during opening statements. She paid attention to the prosecutor's opening statement, heard the prosecutor "explain her theory as to who did what in this case," and looked at the still shots from the surveillance video. But Dale also testified what she heard in the opening statement did not affect her trial testimony or her memory of the robbery. As discussed, Dale also testified she incorrectly identified an individual other than Nesby in the six-pack photographic lineup she was shown on June 19, 2014.
Further, the jury heard Dr. Eisner's expert opinion that a witness's confidence in his or her initial identification of an individual in a photographic lineup would be bolstered by the witness seeing a slide with the word "guilty" across the same individual's face during the opening statement. Moreover, the trial court instructed the jury that one factor in determining a witness's credibility was "[t]he extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified." Under these circumstances, the trial court did not abuse its discretion in denying Nesby's motion for a mistrial because his right to a fair trial was not irreparably harmed. (People v. Johnson, supra, 6 Cal.5th at p. 581; People v. Williams, supra, 1 Cal.5th at pp. 1185, 1187.) C. Nesby Forfeited Any Challenge to the Admissibility of Boughner's Misdemeanor Vandalism Conviction
Prior to Boughner's testimony, the prosecutor informed the trial court and defense counsel that Boughner had a conviction for misdemeanor vandalism. The prosecutor stated, "I do not believe that is a crime of moral turpitude. I believe felony vandalism is. I don't believe misdemeanor is." The court indicated "it could be," and suggested the court could "give [the prosecutor] an answer" after the next witness (Cooper) testified. Nesby's counsel did not request a ruling on whether he could examine Boughner on the misdemeanor conviction—either before or after Cooper's testimony—nor did he attempt to question Boughner about the prior conviction.
On appeal, Nesby contends the trial court improperly barred him from impeaching Boughner with Boughner's prior misdemeanor conviction for vandalism because the court erroneously determined the conviction did not involve an act of moral turpitude. But the trial court never ruled Nesby could not impeach Boughner with the conviction, only noting misdemeanor vandalism "could be" a crime of moral turpitude. Nesby's failure to request a ruling on the admissibility of the misdemeanor conviction or to question Boughner on the conviction forfeits any claim of error. (People v. Jones (2017) 3 Cal.5th 583, 603-604 ["By not asserting in response that [defendant] wanted to introduce [witness's] testimony and opinion as evidence of his good character—and, thus, to open himself up to evidence of his bad character—defendant has forfeited this argument."]; People v. Lucas (2014) 60 Cal.4th 153, 232 [defendant forfeited his claim challenging exclusion of handwriting evidence "because he did not offer the contemplated witnesses or evidence for purposes of challenging the credibility of the state's handwriting expert at trial"], overruled on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; People v. Panah (2005) 35 Cal.4th 395, 481 ["Since defendant did not seek admission of the testimony as third party culpability evidence, he forfeited any claim that it was improperly excluded for that purpose."]; see Evid. Code, § 354, subd. (a).) D. Substantial Evidence Supports Nesby's Conviction of the Offenses Committed on May 4, 2014 and Nesby's Personal Use of a Firearm
1. Standard of review
"In evaluating a claim regarding the sufficiency of the evidence, we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri (2018) 5 Cal.5th 126, 142 ["'To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.'"].) "'"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence."'" (Penunuri, at p. 142; accord, People v. Mendez (2019) 7 Cal.5th 680, 703.)
"'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.' [Citations.] 'We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (People v. Westerfield, supra, 6 Cal.5th at p. 713; accord, People v. Penunuri, supra, 5 Cal.5th at p. 142 ["'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'"].)
2. Substantial evidence supports the jury's finding Nesby committed the May 4, 2014 crimes
Nesby contends insufficient evidence supports his convictions arising from the May 4, 2014 dispensary robbery, pointing to the conflicting identification evidence. Nesby highlights that Dale identified the robber as someone other than Nesby in the six-pack photographic lineup, and Harris and Cooper did not identify Nesby as one of the robbers. But Nesby ignores the substantial evidence pointing to him as the second robber. Although Dale did not correctly identify Nesby in the photographic lineup, she identified him as one of the robbers at the September 24, 2014 preliminary hearing and at trial. Further, Boughner and Rueda identified Nesby in the photographic lineup as the second robber. Nesby also admitted he committed the second marijuana dispensary robbery on May 31 with his cousin Leandre.
Nesby also argues the six-pack photographic lineup was unduly suggestive because he is depicted wearing jail clothing. But on cross-examination, Nesby admitted the man in position 1 also appeared to be wearing jail clothing. Further, it would not be evident to a lay person Nesby is wearing jail clothing (as opposed to simply a blue shirt), and there is no evidence the witnesses knew what jail clothing looked like when they made the identifications. (See People v. Johnson (1992) 3 Cal.4th 1183, 1217-1218 ["fact that defendant was the only person depicted in jail clothing . . . was not unduly suggestive" because "[t]here was no evidence that [the victim] knew what jail clothing looked like when she made the identification"]; see also People v. Carter (2005) 36 Cal.4th 1114, 1163 [rejecting argument that the six-pack photographic lineup was unduly suggestive because defendant was the only person wearing an orange shirt]; People v. DeSantis (1992) 2 Cal.4th 1198, 1223 [fact that only defendant wore a red shirt in a five-pack photographic lineup where the perpetrator wore a red jacket during the crime did not make the photographic lineup unduly suggestive].)
3. Substantial evidence supports the jury's finding Nesby robbed Bell by force or fear
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "Fear" is defined as either: "1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.) "'The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property.'" (People v. Morehead (2011) 191 Cal.App. 4th 765, 774; accord, People v. Mullins (2018) 19 Cal.App.5th 594, 604 ["The fear is sufficient if it facilitated the defendant's taking of the property. Thus, any intimidation, even without threats, may be sufficient"].) "Fear may be inferred from the circumstances in which a crime is committed or property is taken." (People v. Holt (1997) 15 Cal.4th 619, 690; accord, Morehead, at p. 775.) "If there is evidence from which fear may be inferred, the victim need not explicitly testify that he or she was afraid." (Morehead, at p. 775; accord, People v. Montalvo (2019) 36 Cal.App.5th 597, 612 ["[T]he victim need not explicitly testify that he or she was afraid of injury where there is evidence from which it can be inferred that the victim was in fact afraid of injury."].)
Nesby contends there is insufficient evidence to support his conviction for the robbery of Bell (count 10) because Bell did not testify at trial and, absent her testimony, there is not substantial evidence to prove he used fear or force on Bell during the robbery. This contention lacks merit because the testimony of Dale, Harris, and Cooper supports the jury's finding. Dale testified she saw one of the robbers pick Bell off the ground and point a gun at Bell. Dale heard a gun cock, and the robber asked Bell to open the safe. Harris similarly testified a robber grabbed Bell by her hair and pulled her up. Cooper saw one of the robbers put a gun to Bell's head and physically grab or push Bell to get her off the ground. This testimony provides substantial evidence to support Nesby's conviction of the robbery of Bell.
4. Substantial evidence supports the jury's finding Nesby personally used a firearm
Nesby argues there is insufficient evidence to support the firearm enhancements (§ 12022.53, subd. (b)) on counts 1 through 4 and 10 because there was conflicting testimony as to whether Nesby was armed during the May 4 robbery. But it is the role of the jury to determine the credibility of witnesses and resolve conflicts in the testimony. (People v. Penunuri, supra, 5 Cal.5th at p. 142; accord, People v. Mendez, supra, 7 Cal.5th at p. 703.)
Nesby correctly points out Rueda and Cooper did not recall if the second robber (Nesby) had a gun. However, two days after the robbery, Rueda told Detective Rivera the first two robbers pointed their guns at him as they entered the showroom. When Boughner identified Nesby as the second robber in the six-pack photographic lineup on June 2, 2014, he wrote, "He was the second person to come in. He also had a pistol. He held me at gunpoint[,] had me get up from the ground[,] then get up from around the counter and get on the floor in the middle of the room." Dale likewise testified Nesby came into the showroom with a black gun and "ordered everyone to stay down and to give up their cell phones." Harris also testified Nesby ran inside the showroom with a silver and black gun and said, "Everyone get down on the ground." This testimony provided substantial evidence to support the firearm enhancements. E. The Jury Instruction on Flight Was Proper
Over defense counsel's objection, the trial court instructed the jury with CALJIC No. 2.52: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." Nesby contends this instruction was improper. It was not.
Although only Tywon's counsel objected to the jury instruction on flight, the trial court confirmed an objection by one defendant would be deemed an objection by all three defendants.
"'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." [Citations.] "'[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.'"'" (People v. Cage (2015) 62 Cal.4th 256, 285; accord, People v. Bonilla (2007) 41 Cal.4th 313, 328 ["To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence."].) "'The flight instruction properly allows "'the jury to determine to which offenses, if any, the inference [of consciousness of guilt] should apply"' [citation] and "does not address the defendant's specific mental state at the time of the offenses."'" (Cage, at pp. 285-286; accord, People v. Carrasco (2014) 59 Cal.4th 924, 967-968.)
Nesby contends the evidence does not support a flight instruction because he was detained pursuant to a traffic stop on May 31, 2014 while he was driving with his family, three hours after the second robbery. But as to the robberies of both marijuana dispensaries, Nesby arrived with two other robbers in a car, robbed people in the dispensaries, and left in the car. Based on this evidence, the jury could reasonably find Nesby departed the scene after the robberies to avoid being observed or arrested. F. The Trial Court Did Not Abuse Its Discretion in Declining To Strike the Firearm Enhancements
Nesby asserts the cumulative effect of the trial errors infected the trial with such unfairness that the resultant convictions violated his federal due process rights. Because we reject Nesby's claims of error, there was no cumulative prejudice. (People v. Powell (2018) 6 Cal.5th 136, 194 [no cumulative prejudice where "[a]ny errors, actual or arguable, were minor"]; People v. Edwards (2013) 57 Cal.4th 658, 746 [no cumulative prejudice because there was no error, or if assuming error, there was no prejudice].)
1. Nesby's motion to strike the firearm enhancements
Nesby moved to dismiss the firearm enhancements pursuant to sections 12022.53, subdivision (h), and 1385, on the basis he had "no prior record, no one was injured, there was no attempt to injure anyone, and there was no gratuitous use of the weapon in a manner that aggravated the circumstances of the robbery." At the sentencing hearing, Nesby's counsel highlighted Nesby's use of a firearm was not "particularly egregious" and Nesby had participated in numerous classes during his four years of presentence custody.
The trial court acknowledged it had discretion to strike the firearm enhancements, but it declined to do so, explaining, "I do find that there was a substantial separation in time between the first incident and the second incident. And although we don't have prior acts, any prior convictions by Mr. Nesby, that's a lot of time for reflection. [¶] And the first one was a very scary incident, and he clearly made a very conscious decision to provide the guns and to go in, we can see that in the video, for the second incident; so I'm not persuaded by the lack of his criminal record that this was a one-off, that this was something that was spontaneous and he sort of did it off the cuff. [¶] And, in fact, especially with the first incident, the reason that I'm imposing high term on count 1 is because this clearly demonstrated premeditation and deliberation in the sense of how to do this robbery. And I find that the fact that it was inside what was like a secured room, . . . those victims were even that more isolated . . . in the sense that they were now inside this buzzed-in area where it's a locked door and so no one can help if someone had been able to. They couldn't get in. They couldn't help. [¶] The phones were, as I recall, they either collected or moved to a location so they couldn't call for help. . . . [¶] [T]he witnesses in the first incident, . . . were absolutely terrified. . . . [¶] . . . [¶] . . . I also recall that the witnesses who were kind of along the side wall, all had the guns pointed at them or a gun pointed at them, and used to put them on the floor, and that's part of how this transaction occurred. It wasn't just in his waistband. [¶] If it has been just sort of brought his shirt up, flashed it, that could be a situation where I think, okay, that might be a time where the Legislature anticipates that I wouldn't impose the gun use. This was not that type of situation."
2. The trial court did not abuse its discretion
Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1, 2018, amended section 12022.53, subdivision (h), to give trial courts discretion to strike firearm enhancements in the interest of justice. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) Section 12022.53, subdivision (h), provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section."
"A trial court's power to dismiss under section 1385 may be exercised only '"in furtherance of justice,"' which mandates consideration of '"the constitutional rights of the defendant, and the interests of society represented by the People."'" (People v. Clancey (2013) 56 Cal.4th 562, 580; accord, People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) "At the very least, the reason for dismissal must be 'that which would motivate a reasonable judge.'" (People v. Orin (1975) 13 Cal.3d 937, 945; accord, Clancey, at pp. 580-581.) "[A] court's exercise of this power is subject to review for abuse of discretion." (Clancey, at p. 581; accord, Romero, at p. 530.)
Nesby contends the trial court abused its discretion by refusing to strike the firearm enhancements given the absence of aggravating factors and Nesby's lack of a record and exemplary behavior in custody. The court did not abuse its discretion. It carefully considered the circumstances of the two robberies. The court observed the robberies involved planning and premeditation and the May 4 robbery was "egregious," noting the victims were "absolutely terrified" because they were held at gunpoint in a secured room behind a locked door. The court emphasized the robbers did not have their guns in their waistbands or simply "flash" the guns at the victims, instead pointing their guns at the victims. The trial court's stated reasons amply support its refusal to exercise its discretion to dismiss the firearm enhancements. G. The Minute Order and Abstract of Judgment Must be Corrected
On count 6 for second degree robbery of Khan, the jury found true a principal was armed within the meaning of section 12022, subdivision (a)(1). But the minute order and abstract of judgment incorrectly state the firearm enhancement was under section 12022.53, subdivision (b). Nesby contends, the People concede, and we agree the minute order and abstract of judgment must be corrected to conform to the actual firearm enhancement imposed by the trial court on count 6 under section 12022, subdivision (a)(1). (People v. Jones (2012) 54 Cal.4th 1, 89 ["When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties"]; People v. Mitchell (2001) 26 Cal.4th 181, 185 ["Courts may correct clerical errors at any time."].)
DISPOSITION
The judgment is modified to reflect the trial court's imposition of a firearm enhancement pursuant to section 12022, subdivision (a). In all other respects the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.