Opinion
D055804 Super. Ct. No. SCD206291 Super. Ct. No. SCD192975
01-05-2012
THE PEOPLE, Plaintiff and Respondent, v. CARL L. ROUSE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Cynthia A. Bashant, Judge. Affirmed.
A jury convicted Carl L. Rouse of conspiracy to rob Ramona Laday and Tyrece Clayborne (counts 1, 2), conspiracy to rob and robbery of the Skyline Farms Market (Skyline Farms; counts 3, 4), conspiracy to rob and attempted robbery of the Eastridge Liquor Store (Eastridge Liquor; counts 5, 6), and possession of a firearm by a felon (count 7). Rouse asserts the trial court abused its discretion by granting the prosecution's motion to consolidate the charges alleged in counts 1, 2, 5, 6 and 7, with the charges alleged in counts 3 and 4. He also claims: (1) the evidence does not support his convictions on counts 1 through 4; and (2) the trial court erred by allowing the prosecution to present testimonial hearsay to support count 7. We reject Rouse's challenges to the consolidation and the sufficiency of the evidence. We agree that the trial court erred by admitting the hearsay testimony, but find the error harmless.
FACTUAL AND PROCEDURAL BACKGROUND
The charges in this case arose out of a wiretap investigation of a San Diego street gang, the Lincoln Park Bloods, by a multi-agency gang task force. FBI Special Agent Gregory Houska spent all of his time addressing the Lincoln Park gang and the problems this gang created in the community. The wiretaps targeted a number of gang members, including Rouse, ZZ Jabbar and codefendant Travis Montgomery. The wiretap investigation uncovered crimes committed by these men with fellow gang members, Richard Wright and codefendant Matthew Henderson. Montgomery and Henderson were low-ranking members of the gang, and Rouse and Wright held an equal higher-ranking status.
Specifically, investigators learned of a plan by Rouse and Wright to rob purported drug dealers, Laday and Clayborne. Ultimately, both plans fell through. They also learned about a conspiracy by Rouse and Wright to rob Eastridge Liquor using Montgomery and Henderson as the robbers.
On February 16, 2005, the evening of the planned Eastridge Liquor robbery, task force members followed cars driven by Rouse and Wright, with Montgomery and Henderson as passengers. (All further dates are in 2005.) After several telephone calls and a meeting, the men abandoned the plan because they believed they were being watched. Task force members stopped the car containing Rouse and Wright, and arrested the men. The task force also followed a Cadillac carrying Montgomery and Henderson. They arrested Henderson, but Montgomery escaped. Police recovered a black and red sports bag from the front seat of the Cadillac that contained robbery materials, including: a ski mask, gloves, duct tape, and two guns.
Finally, through further investigation, the task force learned about an earlier robbery at Skyline Farms on February 12, involving Wright, Rouse, Montgomery and Henderson. Wright testified at trial that he and Rouse planned to rob Skyline Farms themselves, but that they ultimately recruited Montgomery and Henderson to do the job. On February 12, Wright picked up Henderson and then met Montgomery at a specified location about 50 yards from the store. Wright gave the men a black and red sports bag containing a ski mask, gloves, duct tape and two guns. Wright then parked his car where he could watch the storefront. Wright observed the men go inside and jog out a couple of minutes later. Wright followed the men as they drove away. Eventually, Wright called Montgomery or Henderson telling them where to meet. At the meeting, Henderson and Montgomery returned the sports bag that now contained about $1,200 in cash, and described how one of the men had hit the store clerk with a pistol.
The store clerk and co-owner of Skyline Farms, Farad Makou, testified that on the morning of February 12 at about 8:00 a.m., he was counting money when two men came inside the store. One man wore a hooded jacket, and the other man wore a mask and held a gun. One man asked Makou for money, and then hit him with the gun. The men took an unknown amount of cash and left the store. Makou identified Henderson from a photographic lineup as the robber that did not wear a mask. At the time, Makou was about 90 percent certain of the identification.
The prosecution initially charged the crimes relating to Skyline Farms separate from the crimes involving Laday, Clayborne and Eastridge Liquor. The trial court later consolidated the matters.
Thereafter, the People filed a consolidated information containing seven counts. Rouse was charged on all counts, including the conspiracies to rob Laday (count 1) and Clayborne (count 2). Montgomery and Henderson were charged with conspiracy to rob and robbery relating to Skyline Farms (counts 3, 4), and Montgomery was charged with conspiracy to rob and attempted robbery of Eastridge Liquor (counts 5, 6). Finally, Rouse and Montgomery were charged with possession of a firearm by a felon relating to the attempted robbery of Eastridge Liquor (count 7). The information also contained certain enhancements against all defendants. The trial court jointly tried Rouse, Montgomery and Henderson before a single jury. Wright testified at trial for the prosecution in exchange for a 20 year determinate sentence. The jury found the men guilty as charged on all counts submitted to them for resolution and found true the enhancement allegations. Rouse received a 35-year prison term. We addressed appeals by Montgomery and Henderson in a prior opinion. (People v. Henderson (Oct. 5, 2010, D054493) [nonpub. opn.].) We reversed Montgomery's convictions for conspiracy to rob and robbery of Skyline Farms (counts 3, 4), but otherwise affirmed the judgments. (Ibid.)
DISCUSSION
I. Consolidation
The trial court granted the prosecution's motion to consolidate the Skyline Farms charges with the crimes pertaining to Laday, Clayborne and Eastridge Liquor. Rouse asserts the trial court abused its discretion and violated his constitutional right to a fair trial when it ordered the consolidation as there was virtually no evidence to connect him to the Skyline Farms charges other than Wright's self-serving testimony. He also contends that none of the evidence pertaining to the Skyline Farms charges was cross-admissible to the other charges. We disagree.
Charges may be consolidated under two circumstances: (1) when they are connected together in their commission; or (2) when they are of the same class of crimes. (Pen. Code, § 954; People v. Soper (2009) 45 Cal.4th 759, 771.) (Undesignated statutory references are to the Penal Code.) Where, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in granting consolidation. (People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza).)In determining whether there was an abuse of discretion in a noncapital case, we examine the record before the trial court at the time of its ruling and consider: (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; and (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. (Id. at p. 161.) "[A] determination of prejudice is a highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case." (Williams v. Superior Court (1984) 36 Cal.3d 441, 452.)
Here, much of the evidence regarding the Skyline Farms conspiracy and robbery would have been cross-admissible for the crimes pertaining to Laday, Clayborne and Eastridge Liquor. All of the charges against Rouse included gang enhancements and his gang affiliation was relevant to show motive for all of the crimes. The evidence regarding the Skylines Farms conspiracy and robbery were also cross-admissible to establish Rouse's motive and intent with respect to the other conspiracy to rob offenses. (Evid. Code, § 1101, subd. (b).) Additionally, Rouse provided one of the guns used for both the Skyline Farms and the Eastridge Liquor crimes and his gun possession was directly at issue to count 7 (possession of a firearm by a felon). Cross-admissibility of this evidence suffices to negate prejudice from joinder. (People v. Osband (1996) 13 Cal.4th 622, 667.)
The charges relating to Skyline Farms were somewhat more inflammatory than the other charges against Rouse because they included a completed robbery where one of the robbers struck the store clerk with a gun. However, the facts of the Skyline Farms crimes were not so provocative as to inordinately inflame the jury because the store clerk was not seriously harmed.
We do not agree that there was a significant difference between the strength of the cases based on the record at the time of the ruling. As explained below, there is ample evidence to support all of Rouse's convictions. (Post, part II.) Finally, the consolidated offenses were factually separable; thus, there was minimal risk of confusing the jury. (Mendoza, supra, 24 Cal.4th at p. 163.) The trial court also instructed the jury that each count charged a distinct crime that jurors needed to decide separately. (CALCRIM No. 3515; see People v. Norris (1963) 223 Cal.App.2d 5, 10 ["In the absence of a strong showing to the contrary, it is presumed that instructions limiting the consideration of evidence to one defendant only sufficiently protects the other defendant's right to a fair trial."].)
Rouse has failed to meet his burden of showing prejudice to establish that the trial court abused its discretion in granting consolidation. (Mendoza, supra, 24 Cal.4th at p. 160.) Additionally, we conclude there is nothing about this consolidation that violated his state or federal constitutional rights. (See United States v. Lane (1986) 474 U.S. 438, 446, fn. 8 [improper joinder does not in itself violate the Constitution; this occurs only if the error is so great that it denies a defendant the Fifth Amendment right to a fair trial].)
II. Sufficiency of the Evidence
A. General Legal Principles
When a defendant challenges the sufficiency of the evidence to support his conviction, we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 578.) We must presume in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) The same standard of review applies even "when the conviction rests primarily on circumstantial evidence." (People v. Kraft, supra, 23 Cal.4th at p. 1053.)
To support a conviction for conspiracy to commit robbery, the prosecution is required to show the defendant's express or implicit agreement to commit the robbery, his intent to commit the robbery, and at least one overt act committed by a coconspirator towards its commission. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) Conspiracy may be, and generally is, proven circumstantially. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) The overt acts charged as part of the conspiracy can be circumstantial evidence of the conspiracy's existence and may establish the conspiracy's purpose and intent. (Ibid.) The existence of a conspiracy may also be " 'inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 (Rodrigues), quoting People v. Cooks (1983) 141 Cal.App.3d 224, 311.)
A conviction cannot be based only on accomplice testimony. (§ 1111.) There must be sufficient corroborating evidence that "shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (Ibid.) The requisite corroboration "must, without aid from the accomplice's testimony, connect the defendant to the charged offense, but may be circumstantial, slight and entitled to little consideration when standing alone. [Citations.] Corroborating evidence need not be sufficient to establish the defendant's guilt or corroborate the accomplice to every fact to which the accomplice testified. [Citations.] It must raise more than a suspicion or conjecture of guilt, and is sufficient if it connects the defendant with the crime in such a way as to reasonably satisfy the trier of fact as to the truthfulness of the accomplice. [Citations.]" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1177-1178.) However, "the independent proof required to establish the existence of a conspiracy may consist of uncorroborated accomplice testimony. [Citations.]" (Rodrigues, supra, 8 Cal.4th at p. 1134.) Stated differently, "[t]he testimony of an accomplice is sufficient to establish the fact or existence of a conspiracy (the corpus delicti); his or her testimony needs corroboration only as to the defendant's connection with it. [Citations.]" (People v. Cooks, supra, 141 Cal.App.3d at p. 312.) Unless we determine "that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal." (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)
Here, Rouse challenges the sufficiency of the evidence supporting his convictions for conspiring to rob Laday, Clayborne and Skyline Farms. He also asserts that the evidence does not support his conviction for robbing Skyline Farms. As to the conspiracy charges, he claims that absent Wright's testimony, nothing connected him to the alleged conspiracies. He asserts that while his conversations regarding Laday and Clayborne may not have been entirely innocent, they did not independently establish that he intended to commit a robbery against either of them, and there was nothing from which to infer he had a common agreement with others to do anything other than engage in the sale of illegal drugs. As explained below, we disagree. B. Conspiracy to Rob Laday (Count 1)
To prove the existence of a conspiracy to rob Laday, the prosecution presented the recordings of telephone calls from Jabbar's phones that occurred between January 8 and 12, and the trial testimony of Wright, Laday and Agent Houska. Specifically, on January 8, Jabbar received a call from an unidentified male, who asked, "when they say it gonna be ready?" At trial, the prosecution played part of this telephone call for the jury and asked Wright questions about the conversation. Wright testified that he recognized the voices as belonging to Jabbar and Rouse.
During the conversation, Rouse stated, "I'm ready," "everybody be ready" and "[w]hat we gotta do is get in, get out." When Rouse asked Jabbar who he was taking and whether he would "go in the unit by [him]self," Jabbar indicated that he did not know what the plan was because they had not sat down and talked about it. Rouse replied that the plan involved himself, Jabbar, and Wright. They then mentioned a woman who lived near an alley, with Rouse stating: "Well shit, we wan get in the house, but, we might wanna get the mutha fucka in the house, first, tie 'em up, get his keys and everything else, man, go to his house. Cuz he got the money and shit."
At trial, Wright testified that he, Rouse and someone named Trent discussed a robbery involving Laday because she was known as a middle person for purchasing large quantities of marijuana. Wright claimed that Trent planned to set up a deal with Laday using Jabbar as the "front" for the money and that he and Rouse would commit the robbery. This testimony, and Wright's identification of Rouse as a participant in the January 8 telephone call properly established the existence of a conspiracy to rob Laday. (Rodrigues, supra, 8 Cal.4th at p. 1134.) Accordingly, we turn to the remaining evidence to ascertain whether independent evidence connected Rouse to the conspiracy.
On January 9, Rouse told Jabbar that he checked out everything with the homies, and it looked "doable, kinda easy, as far as I can tell." They discussed when they wanted "to do it" and agreed on Wednesday. Rouse told Jabbar to "let the bitch know, . . . and put yours in for right then, . . . . " Rouse described their job as "muscle men." We take judicial notice that January 12 fell on a Wednesday. (Evid. Code, § 452, subd. (h); People v. Malone (1931) 213 Cal. 406, 407 [court takes judicial notice that certain date fell on Sunday].)
On January 10, Jabbar received a call from Wright, and the two discussed getting together that day to "brainstorm a little bit more and figure some shit out." In a second call, they agreed to meet at an Applebee's restaurant. Surveillance conducted at the restaurant revealed that Jabbar, Rouse and Wright met as discussed.
That evening, Jabbar called Laday, who said she had been waiting three days for him to call. She gave directions to her home, telling Jabbar that it was "right through the alley." Apparently after meeting with Laday, Jabbar told Wright that it was going "real good," and "she[]," presumably Laday, was "ready to like . . . basically like rock tomorrow . . . ." Jabbar ended the conversation by saying, "[T]his is a sure thing though. She's with it . . . . She all the way with it."
The next day, January 11, Jabbar told Rouse that he saw "Baby," that she was "all with it," and was "moving like hell . . . trying to go through with it today . . . ." Jabbar told Rouse that he saw one of the "pictures," and Rouse told Jabbar, "[y]ou don't even know what the fuck you're looking at," and told him not to "fuck with that shit . . . . You don't smoke it or nothing." Jabbar asked Rouse, "[W]hat time tomorrow would you like to try to fuck with the bitches and shit?" Rouse replied that he would like to go as early as possible, because at night, "they'll be getting spooked." Rouse asked Jabbar whether it was "already going to be there." After Jabbar responded affirmatively, Rouse replied: "Oh yeah, that bitch trusts . . . you . . . ."
Later that day, Laday called Jabbar and told him that she was home and someone was going to "bring it right now," and that she would call Jabbar when it got there so he could come and look at it. She made two additional calls to Jabbar, telling him that the guy was held up, that he was going to "bring like [two] over here so you can come look [at] it" and she would call when he got there.
Jabbar and Wright spoke a little after 6:00 p.m. on January 11. Jabbar said he was waiting for Laday to let him know "the pictures" had arrived. Wright said Laday was lagging, that Jabbar needed to stay on her, and that he would "link up with [Rouse]" to get a couple of things that they would need. Rouse called Jabbar around 8:00 p.m. that night to see if the "pictures" had arrived at Laday's yet. Jabbar told him it still had not arrived, but she was still supposed to come through with it. Jabbar called Laday and Laday told him that her source would bring "it" first thing in the morning and that she would call him. Jabbar then called Rouse to tell him that it would arrive "first thing in the morning." Rouse and Jabbar then discussed where Laday lived and Rouse responded, "So we already gigged the whole gig out."
Finally, Rouse and Jabbar spoke on the evening of January 12. When Rouse asked, "whatever happened?," Jabbar responded that he never heard from Laday, and that when he called her, she said she was still trying to put something together. Rouse complained that the plan "Went from aggressive to nothing."
Laday explained that the recorded telephone conversations addressed a plan for her to purchase marijuana for Jabbar. Laday testified that her nickname was "MooMoo" and that in January 2005, she lived in a studio located in an alley off of El Cajon Boulevard. She knew Jabbar as "Fly." She also knew Rouse and Montgomery, and identified both in court. In January 2005, she received a notice from the FBI in the mail that she had been recorded in some phone calls. She later received a phone call from an FBI agent telling her that she needed to talk to him. Laday admitted that she spoke to Jabbar about a marijuana deal in January 2005, but claimed that she had lied to him because she was not a drug dealer. Laday asserted that she lied because Jabbar and other people had bought her food and given her money
Laday admitted that she met with Agent Houska to discuss the recorded telephone calls. She denied telling Agent Houska that she ended the deal because she was suspicious and afraid of being a robbery victim. Agent Houska, however, contradicted this assertion. Agent Houska testified that he had played the recorded telephone calls for Laday and that she acknowledged the conversations. She told Agent Houska, however, that she did not intend to follow through with the marijuana transaction because she was "very suspicious" of Jabbar, and suspicious of Rouse as she knew he was a Lincoln Park gang member. Laday stated that Jabbar had been a recent victim of a home invasion robbery and she believed he might be seeking to recoup some of his losses.
Independent of Wright's testimony, Rouse's conversations with Jabbar on January 9, 11 and 12 established his connection to the conspiracy. The jury could have reasonably concluded that the robbery would have occurred but for Laday's decision to not go through with the drug transaction. In summary, sufficient evidence existed to convict Rouse of count 1. C. Conspiracy to Rob Clayborne (Count 2)
Wright's trial testimony established the existence of a conspiracy to rob Clayborne. Namely, Wright testified that he was familiar with Clayborne and knew he sold large quantities of high grade marijuana. Wright opined that Clayborne seemed like an easy target for a robbery because he was not a "forceful" individual. Wright claimed that he spoke to Rouse about possibly robbing Clayborne.
The prosecution played the recording of a telephone conversation between Wright and Rouse that occurred on January 22 and asked Wright questions about the conversation. Wright explained that he and Rouse were targeting Clayborne and that they were "pretty much on the same page" about doing the robbery. In furtherance of the conspiracy, Rouse asked Wright whether he had "checked on" Clayborne. As an overt act in furtherance of their plan, Wright described to Rouse how he had gone by Clayborne's "gatery" to "look at" something, that he stayed about twenty minutes and even rang the doorbell. Wright reminded Rouse that he had wanted "a little bit more insight" into Clayborne's "whizzle" and stated the "she" was gone. (People v. Russo (2001) 25 Cal.4th 1124, 1135 [the overt act need not itself be a criminal act].)
After that conversation, Wright claimed that he and Rouse did not have a "concrete plan," but that they were "playing it by ear," and trying to get to know Clayborne's schedule. They thought about making a small purchase with Clayborne and "go[ing] forward from there." Wright understood that Rouse wanted to do the robbery at Clayborne's house. Wright admitted that he and Rouse did not have a set plan and needed to improvise, but asserted that they had agreed to rob Clayborne at some point.
Subsequent telephone conversations between Wright and Rouse, as explained by Agent Houska, connected Rouse to the conspiracy and corroborated Wright's testimony. On February 2, Rouse told Wright that somebody in "Bay Vista" told Tyree, identified as Tyrece Clayborne, that Rouse was "going to get him." Agent Houska explained that "going to get him" meant that Rouse was planning to rob Clayborne. Rouse said he was going to "hit" the guy in a minute, meaning he was going to meet with or call him. Wright then asked Rouse, "you want to get the nigger right now or what?" Agent Houska explained that Wright was asking Rouse whether he should rob Clayborne now. At the end of the conversation, Wright told Rouse to "keep your boy posted," meaning he wanted Rouse to keep him informed about the Clayborne issue.
At trial, Clayborne explained that he made his living selling marijuana, including "dodo," a high quality seedless marijuana. At times, he might have up to two or three pounds of marijuana at his home. In early 2005, Clayborne heard from a friend that somebody was planning to rob him. After some investigation, Clayborne found out that Rouse was the person planning the robbery. Clayborne obtained Rouse's telephone number and called him. After the conversation, Clayborne felt that the situation was over, and that it had just been a misunderstanding.
A recorded telephone conversation between Clayborne and Rouse supported Clayborne's account. During that conversation, Clayborne told Rouse that he sold "dodo out here," and heard that Rouse wanted to "do something." Rouse stated that he did not know "where you [] get this from" and that he was "trying to do business on the other end of it." Clayborne replied that he "just wanted to . . . clear this up," with Rouse asking who had given Clayborne the information. Clayborne said it "came like in the wind," and he did not want to start anything. Rouse said he did not understand why someone "would put me out there like that."
Clayborne's testimony and the recorded telephone conversations between Wright and Rouse corroborated Wright's testimony and implicated Rouse in the planned robbery. This evidence also established that the robbery fell through after Clayborne learned of the plan. The evidence reasonably connected Rouse to the conspiracy and supported the conviction. D. Conspiracy to Rob Skyline Farms (Count 3)
Wright testified at trial that in the beginning of February, he contacted Rouse about the possibility of robbing Skyline Farms because their plans regarding Laday and Clayborne had fallen through. Around this time, Wright met Henderson, learned of his gang affiliation with Lincoln Park, and decided to build a relationship with him. Wright believed that Henderson would want to "put[] in work" to gain the respect of the gang by engaging in activities such as robberies. Wright also knew of Montgomery, and Rouse suggested Montgomery as a person that might help commit the robbery.
Wright claimed that he and Rouse planned to rob Skyline Farms themselves, that they went to the store, but abandoned the plan after the owner saw them and their vehicle. They left the store and decided to get others to commit the robbery. Rouse contacted Montgomery, and Wright contacted Henderson about the opportunity. After both men agreed to do the "lick" or robbery, Montgomery obtained a car to use and Wright notified Rouse on February 12, the morning of the robbery, that the plan "was a go." Wright claimed that Rouse "trusted" him to do the robbery because he knew "the situation" and that Rouse would "get his cut" of the proceeds
Wright later picked up Henderson and met Montgomery and gave them a black and red sports bag containing a ski mask, gloves, duct tape and two guns. Wright waited in his car and watched the men go inside and jog out a couple of minutes later. He eventually met with Henderson and Montgomery, saw that the sports bag contained about $1,200 in cash, and heard how one of the men had hit the store clerk with a pistol.
The prosecution used telephone calls recorded by the task force on February 12 as evidence to corroborate Wright's testimony. On February 12, at about 9:00 a.m., Rouse and Wright spoke during two telephone calls. Wright called Rouse to complain that "there really ain't no loot," and told him that they collected about $1,200, and this was a "refresher course for him." The two men talked about others getting "juiced" and that everything went "accordingly."
About one-half hour later, Wright called Rouse to tell him that they collected "like a stack and a half" and wanted to know how to "divvy it." Rouse asked Wright whether "They lookin' like they, they want some," with Wright replying that they did. Rouse stated that they should get "two" and that they know "the next one will be more giggin', . . ." Wright told Rouse that he had "old boy drop the little vessel where he had to drop it," that he was going to leave "all the little situations here" and "tear blood off his and then tear other," and that "I got yours in [my] pocket." Wright explained the conversation to the jury stating that he had Montgomery return the car used in the robbery to wherever he needed to take it, that he would give Montgomery his share of the robbery proceeds, leave the robbery items, give Henderson his share of the money, and that he had Rouse's share of the proceeds in his pocket. Wright stated that he later met Rouse and gave him the money. At trial, Agent Houska explained that about $1,500 had been collected ("like a stack and a half"), that the participants would get about $200 each ("two"), and that the men expected the next one to be better ("giggin").
Wright's uncorroborated accomplice testimony clearly establishes the existence of a conspiracy with Rouse to rob Skyline Farms. (Rodrigues, supra, 8 Cal.4th at p. 1135.) Once Wright's testimony is eliminated, the remaining evidence must be sufficient for a reasonable jury to have concluded that Rouse was connected to the crime. We believe there is sufficient corroboration to support the conviction.
Rouse, Wright, Montgomery and Henderson are all members of the same gang. Although the calls were not recorded, Rouse contacted either Montgomery or Wright about 47 times the day before the robbery and called no other telephone numbers that day.
The recorded telephone calls between Rouse and Wright after the robbery, and Agent Houska's interpretation of the conversations, reveal that Wright called Rouse to complain that "there really ain't no loot," and asked how Rouse wanted to "divvy" the "stack and a half," with Rouse responding that they should get $200 each ("two"). Wright also proposed to give some of the robbery proceeds to Rouse, telling him that "I got yours in [my] pocket." This evidence is sufficient for reasonable jurors to have concluded that Rouse was connected to a conspiracy to rob Skyline Farms. This conclusion is further strengthened by the jury's finding that Rouse participated in a conspiracy to rob Eastridge Liquor and attempted to rob this business with the same gang members only a few days after the Skyline Farms robbery. Taken together, this evidence sufficiently corroborated Wright's testimony regarding Rouse's alleged participation in the conspiracy. E. Robbery of Skyline Farms (Count 4)
As a preliminary matter, Wright testified that Montgomery and Henderson committed the robbery, and there is no evidence suggesting that Rouse was one of the robbers. Accordingly, the jury must have found Rouse guilty of this charge under an aiding and abetting theory. (§ 31.) " ' "A person aids and abets the commission of a crime when he . . . , (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." [Citations.]' [Citation.]" (People v. Busch (2010) 187 Cal.App.4th 150, 161.)
Here, Wright testified that he and Rouse planned to rob Skyline Farms, but they recruited Montgomery and Henderson to do the crime instead. Again, our job is to determine whether sufficient independent evidence tended to connect Rouse with the robbery to the degree that the jury reasonably could be satisfied that Wright had testified truthfully. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1177-1178.) The "[c]orroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense." (People v. Hayes (1999) 21 Cal.4th 1211, 1271.)
We conclude that the corroborating evidence listed in connection with count 3 is sufficient for a reasonable jury to infer that Rouse knew of the planned robbery and encouraged the commission of the crime. (Ante, part II.D.) Namely, the large number of telephone calls Rouse made to fellow gang members Wright and Montgomery the day before the Skyline Farms robbery and Rouse's participation in the similar Eastridge Liquor crimes suggest Rouse knew of the planned robbery and encouraged Wright to commit the crime by using fellow gang members. Wright's call to Rouse asking how to split the robbery proceeds and letting Rouse know that he had Rouse's share of the proceeds "in [his] pocket" supports this conclusion. This same recorded telephone conversation corroborated Wright's testimony that the robbery proceeds were about $1,200 ("maybe 1200" and "like a stack and a half") and suggested that Rouse had a plan to commit another robbery, i.e., Eastridge Liquor, using the same method ("we gonna ready to be giggin' on the next gig," "[a]s long [as] they on deck"). Significantly, even if the corroborating circumstances are consistent with Rouse's innocence, the determination as to whether the corroborating evidence is as compatible with innocence as it is with guilt is a question of weight for the trier of fact. (People v. Gallardo (1953) 41 Cal.2d 57, 63, fn.†, disapproved on another ground in People v. Chapman (1959) 52 Cal.2d 95, 98.)
III. Testimonial Hearsay
A. Background
Wright testified that he provided a robbery kit containing two handguns to Henderson and Montgomery for the crimes alleged in counts 3 through 6. Rouse provided one of the guns and the kit was found in Rouse's Cadillac that was being driven by Montgomery and Henderson. At trial, the prosecution sought to admit a forensic report regarding the collection of DNA and fingerprint samples taken from the guns. Because the forensic specialist who collected the evidence was not available to testify, the prosecution sought to introduce the evidence as a business record, and a contemporaneous recordation of observable events through the testimony of her supervisor. The trial court overruled Rouse's objection that the evidence was inadmissible under Crawford v. Washington (2004) 541 U.S. 36 and violated his constitutional right to confront and cross-examine witnesses.
At trial, the crime scene unit supervisor testified regarding reports submitted by the forensic specialist and as to the protocol he claimed the forensic specialist would have used in preparing the evidence. A criminalist later testified that based on the samples purportedly prepared by the forensic specialist, Rouse was a possible contributor to the mixed sample of DNA taken from the revolver. B. Analysis
Rouse contends his conviction for possession of a firearm by a felon must be reversed because the trial court violated his Sixth Amendment right to confrontation by permitting a crime scene unit supervisor to testify regarding procedures and reports of a nontestifying forensic specialist involved in the DNA testing in this case. He asserts that the trial court's authority for admitting the evidence, People v. Geier (2007) 41 Cal.4th 555 (Geier), does not survive recent decisions by the United States Supreme Court, Bullcoming v. New Mexico (2011) 564 U.S. ____ (Bullcoming) and Melendez-Diaz v. Massachusetts (2009) 557 U.S. ____ (Melendez-Diaz). (The issue of whether Geier survives Melendez-Diaz is currently before the California Supreme Court. (E.g., People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 , review granted Dec. 2, 2009, S176213.)
In Bullcoming, the Supreme Court examined the admissibility of a defendant's blood-alcohol level report and held that, absent a stipulation, the testimony of a qualified analyst was not a sufficient substitute for the live testimony of the person who conducted the actual tests and prepared the reports. (Bullcoming, supra, 564 U.S. at p. ____, [131 S.Ct. 2705 at pp. *2709-2710].) Accordingly, it appears the trial court violated Rouse's federal constitutional right to confront witnesses when it overruled the objection.
Confrontation clause violations are subject to the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24. (Geier, supra, 41 Cal.4th at p. 608.) In applying that test, we ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error. (Ibid.) In this case, a reasonable jury could have made the same finding without the DNA evidence.
On the day of the planned Eastridge Liquor robbery, task force members followed a Cadillac owned and driven by Rouse, and an Impala driven by Wright, with Montgomery and Henderson as passengers. After the men aborted the planned robbery, police found a revolver and pistol inside a sports bag in the Cadillac. Wright testified that Rouse had given him the revolver. Although Rouse asserts that Wright's testimony was not credible, the jury presumably found Wright's testimony credible by convicting all men on all counts submitted to them for resolution. We do not reassess witness credibility on appeal. (People v. Jones (1990) 51 Cal.3d 294, 314-315.) Accordingly, we conclude that any error in admitting into evidence the testimony regarding the DNA evidence was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
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MCINTYRE, Acting P. J.
WE CONCUR:
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AARON, J.
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IRION, J.