Opinion
A148969
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. TERRENCE SINGLETON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 223356)
Defendant Terrence Singleton was one of three men who robbed two patrons at a San Francisco gas station. A jury found defendant guilty of two counts of second degree robbery, and that he did have a prior felony conviction as alleged. After denying defendant's motion for a new trial, the trial court sentenced him to state prison for terms prescribed by law. Defendant contends: (1) his convictions are not supported by substantial evidence; (2) the trial court abused its discretion in denying him a new trial; (3) the trial court abused its discretion with evidentiary rulings; and, (4) he is the victim of several instructional errors. We conclude defendant has failed to demonstrate prejudicial error, and affirm.
DISCUSSION
Defendant's Convictions Are Supported by
Substantial Evidence
Penal Code section 211 defines the crime of robbery as "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." "The fear mentioned in Section 211 may be 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." (Pen. Code, § 212.)
Defendant contends his convictions must be reversed, or at least reduced to grand theft from the person, because "there was insufficient evidence for the jury to conclude the property was acquired by force or fear, and that he was the person at the gas station."
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
" ' "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." ' [Citation.] 'The extent of the victim's fear "do[es] not need to be extreme . . . ." ' [Citation.] '[T]he fear necessary for robbery is subjective in nature, requiring proof "that the victim was in fact afraid, and that such fear allowed the crime to be accomplished." ' Citation.] 'Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim.' [Citation.] ' " 'Where intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear.' " ' [Citations.]" (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.)
It was alleged in the information that defendant, together with codefendants Dishon Irving and Derek Gould, took an "iPhone, debit card, belt, U.S. currency from the person, . . . of Christian Seeney," and took an "iPad, gold chain, cell phone, belt, U.S. currency from . . . Troy Konaris." Neither victim testified at the trial. Nor did any of the accused. Nevertheless, the web of circumstantial evidence is compelling, and, viewed most favorably to the prosecution's evidence, provided ample evidence to support the verdicts on defendant's guilt.
About 4:00 p.m. on December 31, 2013, the victims reported the robbery to police and provided a general description: "Three possible Latin male adults, all in black hoodies." The jury was told that when police officers arrived within minutes, they found a clearly angry Konaris and a shaken but more subdued Seeney. Konaris told the officers he feared for his safety if it became known that he cooperated with the police. One of the responding officers, Officer Cuevas, testified that Konaris "said that he feared that he would be killed . . . he feared for his life and Mr. Seeney's life."
It happened that an unidentified man thought something criminal was occurring, recorded a license plate, and told it to a clerk in the store. The clerk in turn gave it to the responding officers, who broadcast the information, along with a description of a silver-colored vehicle. The broadcast was made by an officer who had viewed what was recorded by the station's video camera. That officer testified that the video showed the two victims get into a black vehicle; a silver car pulled up behind the black one, effectively preventing it from moving; two men left the silver car and walked over to the black vehicle; the two men stayed by the black car for a few minutes; and then they returned to the silver car, which promptly left the scene.
One officer who heard the broadcast identified the silver vehicle as belonging to Derek Gould, whom the officer knew. Approximately five hours after the incident, this officer spotted Gould's silver car, which he also knew from personal experience. Gould's car was followed until it stopped, whereupon defendant jumped out of the passenger side and began running. He was pursued and apprehended. Gould and Irving stayed with the car. Within an hour, Konaris and Seeney were separately brought in a police vehicle to determine if they could identify defendant, Gould, and Irving. Konaris and Seeney each stayed in the police vehicle, and both seemed fearful of being seen by defendant, Gould, and Irving.
Inside the car, officers found Seeney's driver's license and his ATM card in Gould's jacket. The officers also found two hidden handguns, a gold necklace, a Gucci belt, and iPad with case, and a number of cell phones. Two of the phones and the necklace were taken from Konaris. The iPad and case also belonged to Konaris.
During the hours after the incident, but before defendant, Gould, and Irving were apprehended, they drove to Richmond, where they unsuccessfully attempted to use Seeney's ATM card to get money. The receipt from the attempt was found on Irving when he was apprehended.
Finally, the jury heard a number of telephone calls made by defendant, Gould, and Irving while in jail awaiting trial. The common theme of the calls was the implicit threat of violence directed at those who break the "street justice" norm of not "snitching" to law enforcement. The inference the jury could draw was that the threats accounted for the absence of both victims at the trial.
There was more than sufficient circumstantial evidence to establish that Konaris and Seeney had personal property taken from them by force or fear. One of the officers who spoke with them described Seeney as being 6'5" tall, while Konaris was about 5'10." Yet they were parted from valuable items of personal property, property that was subsequently found either on or about the persons in Gould's vehicle. There being no evidence that physical force was directly applied, it is eminently reasonable to conclude Konaris and Seeney were intimidated or coerced into surrendering those items by the actual or implicit threat of force. The potency of the threat was demonstrated by their subsequent agitation and palpable dread of being spotted by the defendants while in the police vehicles. In short, there is abundant evidence that Konaris and Seeney were robbed.
But can the same be said for evidence that defendant was one of the robbers? " 'Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.) On this point, too, " ' "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." ' " (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Defendant argues: "[T]he evidence was also insufficient . . . for the jury to conclude Appellant was even at the gas station. One of the suspects at the Loop Gas Station was wearing a hooded jacket with stripes on the inside over an orange, black and white shirt. Appellant was arrested in possession of a gray zip-up San Francisco Giants jacket with orange and black writing across the front, a black and gray striped sweater with a hood and black Nike brand T-shirt with writing in the front in orange, white and gray. Also, Appellant was obviously arrested with Irving and Gould, who were in possession of stolen property. This is insufficient to prove identity, however." This approach reflects an unduly narrow view of the evidence.
The time between robbery and apprehension was sufficient for the robbers to drive from San Francisco to Richmond and return, plenty of time for defendant to change clothes. True, when apprehended defendant was not carrying any items of personal property taken from Konaris and Seeney. But defendant had just bailed out of a vehicle filled with stolen items, items that could be deemed to be in his constructive possession. (See, e.g., People v. Land (1994) 30 Cal.App.4th 220, 223-228 [evidence supported a finding that the passenger had constructive possession of the stolen vehicle because of the passenger's "close relationship to the driver, use of the vehicle for a common criminal mission, and stops along the way before abandoning it (during which [the passenger] apparently made no effort to disassociate himself from his friend or the stolen vehicle)"]; People v. Taylor (1984) 151 Cal.App.3d 432, 436 [finding sufficient evidence of constructive possession by the driver where the gun was thrown from the passenger side of the car when "the gun was thrown soon after the chase began and [the defendant's] driving represented an unequivocal attempt to avoid capture"]; People v. Nieto (1966) 247 Cal.App.2d 364, 366-368 [as long as the defendant is aware of the presence of the contraband, and both the defendant and the contraband are within the passenger compartment of a vehicle, constructive possession can be inferred].)
Having spotted the officers, defendant's flight may itself be credited by the jury as consciousness of guilt. (People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10 ["Guilty flight may be relevant . . . where the identity of the perpetrator is at issue"]; Pen. Code, § 1127c; CALCRIM No. 372.) But guilt of what? The most logical feeling of guilt would be for the robbery of Konaris and Seeney. (Cf. People v. Banks (2014) 59 Cal.4th 1113, 1155 ["the jury could have reasonably inferred the elements of an attempted robbery from the totality of the circumstances"].)
Defendant is not arguing that no evidence tied Gould and Irving to the robbery. He does not claim that he is not one of the three men caught on the gas station videotape. Thus, we must presume that the jury—which, unlike this court, had defendant in front of it—concluded he was one of the three men depicted on the tape who went up to Seeney and Konaris in the black car. His presence with Gould and Irving before and after the charged offenses could also tie him to the robberies. (Cf. In re Z.A. (2012) 207 Cal.App.4th 1401, 1427 ["By presenting evidence that Z.A. participated in a drug-smuggling operation . . . , the People presented sufficient evidence from which a reasonable fact finder could find that Z.A. exercised, at a minimum, constructive possession of the marijuana"].)
While the circumstantial evidence identifying defendant as one of the robbers might not be as strong as the circumstantial evidence that Seeney and Konaris were robbed, it is sufficient.
The Trial Court Did Not Abuse Its Discretion
In Denying Defendant's New Trial Motion
In his opening brief, defendant concisely states the pertinent "Background" to his new trial motion:
"Mr. Seeney was notable from [sic] his absence in this trial. His 911 call was excluded because he was calm in the call and thus his statement was not an excited utterance. Officer Cuevas vaguely described him as somewhat shocked but subdued at the Loop. The only thing the jury heard was that Seeney was quiet and reluctant at the show up, and that he did not want to comply with a subpoena to attend the trial. The jury never got to hear his perspective or explanation of what happened.
"Trial counsel was able to locate Mr. Seeney after trial via an investigator and obtained a declaration which he stated under oath that Mr. Singleton did not rob him, and that no robbery occurred. He explained that he had earlier dropped his phone and was trying to retrieve it. He met with the defendants at the Loop Gas Station, where some kind of argument broke out. The men did not return the cell phone, but neither did they take any property from him, nor did they threaten him. He admitted that he lied to the police about the incident in an effort to get his phone back. This contradicted the prosecution theory of the case and was the only direct evidence about what occurred that day."
Defendant's new trial motion was denied because of the trial court's comprehensive disbelief of the Seeney declaration. After stating that it would assume, in the face of considerable reason to believe otherwise, that "Mr. Seeney in fact could be brought here and would in fact . . . testify," the court stated its reasoning:
"The main issue that I see with Mr. Seeney's declaration here is that it is quite literally incredible on several scores. It does not, for example, credibly address why he wasn't available at trial. He says that everybody knew where he lived and he wasn't hard to find. I don't actually believe that. I do believe Counsel when both sides—when you say that you tried very hard to find Mr. Seeney.
"The declaration . . . is a general denial that a robbery took place. However, the declaration doesn't go far enough to explain, . . . in even the slightest way how, for example, his ATM card and his driver's license . . . were found in the Defendants' possession.
"[T]he declaration also contradicts his statements to the police. And, in fact, internally within this declaration, I believe . . . no fewer than three times he says that he misinformed the police. That he says that he lied to the police when . . . he called the police. I believe he says he lied to the police when the police came to the gas station, took a report from him. And that he also lied [when] the property was given back to him . . . [he] was not honest with the police at that point.
"So, my problem with this is that I don't know that this would have changed the outcome of the trial. In fact, I believe it would not have changed it. Not only are there impeachment issues, . . . internal issues that showed a lack of credibility here, but, in addition, there was testimony at trial . . . that the two victims in this case had reasons for not testifying, inasmuch as they could be labeled as snitches. So . . . [m]y finding is that it's unlikely that Mr. Seeney's general denial would have produced a different result at trial and on that basis I will deny the new trial motion based on Mr. Seeney's declaration."
Defendant contends the denial of his motion was an abuse of the court's discretion. We do not agree.
" 'To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.' [Citation.] '[T]he trial court has broad discretion in ruling on a new trial motion . . . ,' and its 'ruling will be disturbed only for clear abuse of that discretion.' [Citation.] In addition, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 308.) " '[T]he trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.' " (People v. Howard (2010) 51 Cal.4th 15, 43.) On review, the trial court's decision has a " 'strong presumption' " of correctness. (People v. Seaton (2001) 26 Cal.4th 598, 693.)
Defendant argues that "Seeney's claim that he was not hard to find was a peripheral issue that had nothing to do with issues of guilt." This is true only in the most literal sense. But Seeney's statement does not reflect well on the issue that is certainly not peripheral to the issue of credibility. It is a truism of determining credibility that a person who is false in one respect may be suspected in all respects. (See People v. Lawrence (2009) 177 Cal.App.4th 547, 555 [" 'experience has taught us that a deliberate liar cannot be trusted' "].) This truism is part of CALCRIM No. 226, with which the jury was instructed. In stating that he was easy to find, Seeney not only underlined defense counsel's lack of diligence in producing him for trial, he also provided the trial court with a ground for disbelieving the rest of his declaration. This also defeats defendant's argument that "the court's concern that the declaration was too general was not a sufficient basis to reject it."
Defendant's next point is that "the fact that Seeney's declaration contradicted statements he made to the police does not automatically render his claims unworthy of belief." True enough, but the record establishes that the trial court's denial of defendant's motion was hardly "automatic." On the contrary, that decision was the careful result of the weighing of a number of factors. Seeney's recantation was merely one of those factors, and not an improper one at that. Such a sudden reversal is viewed with considerable caution, if not skepticism. (See, e.g., In re Roberts (2003) 29 Cal.4th 726, 742 [" 'is to be viewed with suspicion' "]; People v. Minnick (1989) 214 Cal.App.3d 1478, 1481 ["looked upon with disfavor"]; People v. Langlois (1963) 220 Cal.App.2d 831, 834-835 [recantation "looked upon with suspicion"].)
Defendant's final argument is advanced in these terms: "The court was concerned that Seeney's statements were full of contradiction and that he admitted he had lied to the police. From this, the court reasoned, no juror could have a reasonable doubt about whether Seeney was robbed. This determination was an abuse of discretion because it is based on an unreasonable assessment of the facts of the case." Certainly we do not take this argument as saying Seeney's conceded and repeated mendacity was irrelevant. (See People v. Howard, supra, 51 Cal.4th 15, 43; People v. Lawrence, supra, 177 Cal.App.4th 547, 555.) And we do not believe the trial court was assaying the actual mental state of the jury.
In sum, the record shows that the trial court evaluated the purported newly discovered evidence with a correct appreciation of the governing principles. The basis of the court's decision was without question an adverse determination of Seeney's credibility, an issue clearly entrusted to the court's authority. (People v. Verdugo, supra, 50 Cal.4th 263, 308.) And we conclude that defendant's efforts to demonstrate an abuse of the court's broad discretion in denying his new trial motion have not succeeded. (Ibid.; People v. Seaton, supra, 26 Cal.4th 598, 693.)
There Was No Prejudicial Evidentiary Error
Defendant's next contention is that "a combination of evidentiary errors" deprived him of a fair trial. The asserted "combination" is comprised of three parts, all centering around statements by Seeney and Konaris that were recounted for the jury. We address each of the three separately.
(1)
Officers Larsen and Cuevas were the officers who first responded to the call for assistance from the gas station. What they heard and learned from Seeney and Konaris was the subject of an extensive pretrial hearing conducted in accordance with Evidence Code section 402. Much information the trial court ruled inadmissible (erroneously so, argues the Attorney General, but without seeking to overturn any particular exclusion), but the court did allow testimony about utterances made by Konaris when he and Seeney were first questioned at the gas station by Larsen and Cuevas. The court's ruling was as follows:
"As far as Mr. Konaris' . . . statements to Officers Cuevas and Larsen at the Loop Gas Station are admitted and specifically that he feared for his life as well as his friend's life if that is in fact what Officer Cuevas testifies to and I believe he did.
"So Officer Cuevas at the 402 hearing was very credible. He—his recollection was good. He testified as to the demeanor of Mr. Konaris and I'm going to take his word that Mr. Konaris was still under the excitement of the alleged robbery or whatever it was that occurred at the gas station.
"As far as again Mr. Konaris' statements to Officers Larsen and Cuevas my ruling is that it [sic: they (the statements)] does fall within in some cases [Evidence Code sections] 1240 and 1250 as they are at the scene. There is no Crawford issue inasmuch as the officers were responding to an emergency, it was close enough in time to that emergency. As Officer Cuevas testified . . . , there were exigent circumstances, there had been an alleged robbery with a gun, it was New Year's Eve, they were concerned about putting out over the radio the fact that there had been a robbery with firearms. . . . [T]hey were concerned that this might be—there might be a series of robberies. So I will accept Officer Cuevas' testimony that these were emergency . . . or exigent circumstances and Konaris' statements there at the Loop can be admitted."
"As far as Mr. Seeney's statements they are not admitted. Given that the Court had the opportunity to hear Mr. Seeney on the 911 call which obviously occurred very shortly before the officers arrived, there's not enough indication that he—he may have been but it's not clear to me that he was under stress such that his statements fit within 1240 or even 1250 . . . . So Mr. Seeney's statements to the officers there at the Loop Gas Station are not admissible."
Evidence Code section 1240 (section 1240) provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
The admission of evidence under section 1240 does not implicate an accused's federal constitutional rights to due process and confrontation of witnesses. (People v. Merriman (2014) 60 Cal.4th 1, 67.) Thus, ordinarily the admission of evidence not authorized by section 1240 is subject to review only for state law error. (Id. at p. 70; People v. Partida (2005) 37 Cal.4th 428, 439.) "Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion. [Citation.] We will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception." (People v. Merriman, supra, at p. 65.)
" 'To be admissible, "(1) there must be some occurrence startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." ' . . . [¶]
"Because the second admissibility requirement, i.e., that the statement was made before there was ' "time to contrive and misrepresent," ' 'relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met.' [Citation.] In considering admissibility under this requirement, the court considers a variety of factors to determine the mental state of the declarant. ([People v. Farmer (1989) 47 Cal.3d 888] at p. 903 [the 'crucial element in determining whether a declaration is sufficiently reliable to be admissible' is not the 'nature of the statement but the mental state of the speaker'].) These factors include the length of time between the startling occurrence and the statement, whether the statement was blurted out or made in response to questioning, how detailed the questioning was, whether the declarant appeared excited or frightened, and whether the declarant's 'physical condition was such as would inhibit deliberation.' " (People v. Lynch (2010) 50 Cal.4th 693, 751-752.) It is because the nature of the inquiry is so fact-specific that our Supreme Court characterized admission under section 1240 as " 'in general, largely a question of fact.' " (People v. Banks, supra, 59 Cal.4th 1113, 1163.)
Defendant fails to mount a persuasive effort to surmount the obstacles to reversal. He makes no real attempt to summarize the testimony and evidence presented at the Evidence Code section 402 hearing. He simply tells us, "the court had already ruled that Seeney's 911 [call], which occurred before Konaris' statement to the police was not admissible as a spontaneous statement. The court found that there was 'no indicia of urgency, emergency, fear.' It further noted that at least '10 to perhaps 20 minutes had elapsed between the event and the phone call.' If Seeney's statements did not meet the requirements for a spontaneous statement, it is difficult to see how Konaris' statements to Officer Cuevas, which occurred even later than the 911 call, and under less urgent circumstances could be deemed to meet the requirements."
Defendant cites the proposition that "The crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration is the mental state of the speaker" (People v. Gutierrez (2009) 45 Cal.4th 789, 811), yet he does not follow the obvious point of the Supreme Court's sentence. Seeney and Konaris are not the same person, and it is unrealistic to treat them as interchangeable. The trial court found that Seeney was not agitated at a specific point in time, but it clearly found that Konaris was at a later point in time. Plainly, the court found, based on the evidence received at the hearing, that Konaris was still agitated after Seeney had calmed down. Because it is "the mental state of the speaker," in this case Konaris, that is crucial, it was up to defendant to demonstrate that the evidence received at the hearing is insufficient to support the trial court's ruling that Konaris's statements met the requirements for admissibility under section 1240. He does not do so.
Defendant concedes the evidence shows that Konaris was angry, but he then argues: "Anger is not the condition which would render a robbery victim's statements spontaneous for purposes of this hearsay exception." Defendant cites no authority for such a categorical conclusion. A victim such as Konaris might be angry that he had let his guard down and been taken by surprise. He might be angry that he had surrendered personal property without resistance. He might be angry that he had not pursued the robbers. He might be angry that all of these failings had been observed by Seeney. If the utterances of each speaker are to be decided according to his or her mental state, such a case-by-case approach cannot be restricted by excluding, as a matter of law, this or that emotional cause of the speaker's mental state.
The same is true with respect to Konaris's fear of retaliation. Defendant points to Konaris considering the consequences of cooperating as reflecting "he had time to contemplate the consequences of cooperation," which shows he had "time to contrive and misrepresent." Yet fear, like anger, can obviously cause mental agitation that is not confined to the initial moment. Defendant asserts that "Konaris' statements were simply not statements that described the occurrence which gave raise [sic] to the stress." But the robbery was at the root of Konaris's fear, and, while still under the mental stress of that fear, he made statements concerning the robbery, and what made him fearful.
Or so the trial court could find, on the basis of this testimony by Officer Cuevas:
"Q. What was Mr. Konaris' demeanor like at that moment?
"A. He seemed angry. Angry and obviously upset. He was kind of pacing back and forth, and he was kind of in movement when he said this. He wasn't—he wasn't standing still when he told Officer Larson [sic] this. He was kind of pacing back and forth in movement when he said this."
"Q. . . . When you say 'angry,' what makes you—what about his demeanor indicated that he was angry to you?
"A. Well, the fact that he was kind of moving. Walking in a swift pace . . . . His jaw was kind of tight and clenched. But I do remember he had a frown on his face, and the fact that he was moving fast and rapidly, and just very animated at the time made me think that he—he appeared angry. [¶] He just had a lot of . . . hand gestures. . . . [H]e wasn't talking calm. His voice . . . it was almost like he was yelling. [¶] . . . I mean it was more keyed onto the tone of his voice, and like the fluctuation of it. [¶] . . . It was kind of up and down, unstable." Konaris then told Cuevas that he and Seeney "were robbed, and items were taken from then at gunpoint," and that "he feared" both he and Seeney would be killed "if he did not give up his stuff."
As noted, defendant makes no concerted effort to show why the testimony of Officer Cuevas, which was credited by the trial court, is inadequate to establish that Konaris's hearsay statements were inadmissible as a matter of law under section 1240. Our own examination of the record persuades us that there was an ample factual basis for the trial court to conclude that Konaris spoke before there was " ' "time to contrive and misrepresent." ' " (People v. Lynch, supra, 50 Cal.4th 693, 752.) In light of this conclusion, defendant fails to demonstrate that the trial court's ruling amounts to an abuse of its broad discretion. (People v. Merriman, supra, 60 Cal.4th 1, 65; People v. Banks, supra, 59 Cal.4th 1113, 1163.) And in light of the foregoing, there is no need to consider whether the trial court was also correct in deciding that the statements were also admissible under Evidence Code section 1250.
(2)
The caption in his brief states defendant's next argument as follows: "The Court improperly permitted evidence that a 'robbery' had been committed to come before the jury." He argues that "throughout the . . . trial, the jury continually heard about a 'robbery' from the police officers . . . . At some point, the continual repetition served to establish that a 'robbery' had in fact occurred, when there was no direct evidence presented of a robbery," which "permitted the jury to fill in the blanks by speculation." "[T]he jury heard again and again that the victims called 911 and reported a robbery. The jury would inevitably conclude that someone who made such a report actually was robbed and from there conclude that a robbery had taken place."
Defendant concedes, and does not now contest, that the jury was allowed to hear, with a limiting instruction, the word "robbery" in the context of why officers were dispatched to the gas station. He also acknowledges that at about midway through the trial he unsuccessfully moved the trial court to grant either a dismissal or a mistrial, yet he makes no genuine attempt to argue that either denial was error. He notes that the court declined his request to direct "that witnesses not be allowed to refer to a robbery," but presents no distinct claim that this ruling was the turning point. In short, it appears defendant's contention is a rather generalized claim that repeated use of the word "robbery" was so prejudicial that it vanquished his constitutional right to a fair trial.
We cannot agree that the word "robbery" must be banished from a criminal trial for robbery. Among criminal charges, robbery is not freighted with the emotional impact of rape, murder, or sexual offenses against children. It is hard to credit that mere mention of the word unhinges the jury's reason. This is particularly so because the jury has already heard the word during jury selection, opening statements, and the reading of the information.
Moreover, there is no good reason to believe that this jury was swept away with prejudice against defendant: despite hearing repeated references to this being an armed robbery, or that the defendants had guns, and despite hearing testimony that guns were found in Gould's vehicle when it was stopped, the jury refused to convict defendant of armed robbery on either count. Thus, there is a sound basis for concluding that the jury did comply with the limiting instruction (CALCRIM No. 303) given by the court.
Finally, defendant's argument is predicated on the assumption that the prosecution would be unable to prove that a robbery had in fact occurred, an assumption that has already been disproven.
(3)
Defendant states the background for his final claim of evidentiary error thusly: "Appellant moved, in limine, to exclude evidence that Seeney and Konairs [sic] had identified him at the in field show-up. The court declined to rule on the motion as moot because it had already determined that because Seeney and Konaris were not going to testify the prosecution witnesses could not introduce their hearsay statements at the cold show in which they identified the defendants. Despite this, Inspector Broberg, the designated investigating officer, testified while discussing Singleton's jail phone call that Singleton knew that the victims had identified him. The court held a hearing outside the presence of the jury at which defense counsel asked for a mistrial, appellant's counsel asked for a dismissal, or, failing that, to take curative measures such as those discussed in People v. Navarrete (2010) 181 Cal.App.4th 828. After a lengthy colloquy the court took a recess and then denied to [sic] motion to dismiss and denial [sic] the motion for a mistrial. The court stated that while it did not rise to the level of Nava[r]rete, it was a 'serious' situation. The court felt that Inspector Broberg's actions were not the kind of intentional disrespect of the court's rulings that incurred in Navarette [Navarrete]. . . . [¶] . . . [¶] . . . Ultimately, the court felt that the jury would follow a limiting instruction, and decided to give a limiting instruction."
Defendant does not quote the language of the "limiting instruction," which was as follows: "Inspector Broberg . . . made reference to one or more of the defendants being identified by the victims. You cannot consider that testimony and that testimony is hereby stricken. You can give it no weight at all. You have heard no evidence of an identification by any victim, alleged victim in this case. That testimony is therefore stricken. You cannot consider it. You cannot consider it as evidence and when you begin to deliberate, you cannot consider it. [¶] Furthermore, you cannot even discuss the fact that it has been stricken. The decision that you reach in this case can be based only on the admissible evidence and that is not evidence in this case."
Defendant continues in his brief: "This was an insufficient remedy. At this point, Broberg's violation of the court's ruling was the straw that broke the back of appellant's right to a fair trial. . . . [A] limiting instruction can go only so far to 'unring the bell' of improperly admitted evidence. It [is] simply unreasonable to find that appellant could have had a fair trial under all the circumstances. . . . [T]he evidence of identity was extremely weak. This evidence was sure to eliminate all doubt about identity, and was prejudicial." We do not agree.
People v. Navarrete, supra, 181 Cal.App.4th 828, which defendant does not discuss in his brief, is clearly distinguishable because the improper remark, which the trial court treated as deliberately made, there led the jury to believe the defendant had confessed. A "confession" out of an accused's mouth has a far greater impact than Broberg's letting slip that defendant had been identified by one of the victims. Defendant does not claim the inspector's improper remark was anything other than inadvertent. The remark was not lengthy, or repeated. The Navarrete court stated, "a trial court can almost always cure the prejudice of an improperly volunteered statement by granting a motion to strike and charging the jury with an appropriate curative instruction." (Id. at p. 836, italics added.) This is the only error, and it was one quickly addressed by the trial court. The evidence is hardly as weak as defendant believes, nor are there other aggravating mistakes. Our conclusion is the same as made by our Supreme Court with respect to a very similar contention: "The trial court's timely and specific admonition, which the jury is presumed to have followed, cured any prejudice resulting from the witness's inadvertent and improper statement." (People v. Morris (1991) 53 Cal.3d 152, 194.)
(4)
Lastly, defendant submits the "cumulative effect of the errors" denied his federal constitutional right to a fair trial. The foregoing discussion establishes there was no cumulative error. Defendant's claim fails accordingly.
There Was No Prejudicial Instructional Error
Defendant claims a number of the instructions used at his trial were defective. We discuss each claim separately.
CALCRIM No. 1600
The standard instruction on robbery advises the jury that one of its elements is that "the defendant used force or fear" to obtain the personal property of another. The instruction goes on: "Fear, as used here, means fear of injury to the person himself or herself, or immediate injury to someone else present during the incident or to that person's property." Defendant contends this instruction "failed to accurately describe the element of fear," specifically, that it "fails to explain . . . that the fear must be of a present harm occurring at the time of the taking; fear of future harm is extortion, not robbery." Defendant is overthinking a very straight-forward issue.
For more than half a century, it has been settled law in this state that the fear element of robbery has no technical meaning that must be explained to the jury. (E.g., People v. Maury (2003) 30 Cal.4th 342, 425-426; People v. Anderson (1966) 64 Cal.2d 633, 639.) Thus, if defendant believed it required amplification or modification, it was his obligation to request it, because there was no sua sponte duty on the trial court to do so. Because defendant did not do so, the point was not preserved for review. (E.g., People v. Lee (2011) 51 Cal.4th 620, 638; People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.)
Even if the merits were properly before us, defendant would not prevail. Defendant is extrapolating backwards from the section 1240 analysis—he assumes that because Konaris was consumed by fear of retribution when he spoke to the responding officers, a similar fear must have been present earlier for both Konaris and Seeney when they surrendered items of personal property. But there is no evidence that either victim had any thought other than the one common to all robbery victims.
CALCRIM No. 224
The jury was instructed with CALCRIM No. 224 as follows: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The trial court refused defendant's request that the jury be instructed instead with CALJIC No. 2.01, which states: "However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant's guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant's innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
The court refused defendant's request on the ground that both instructions covered the same ground. Defendant claims this was error on the theory that "CALCRIM No. 224 was inadequate to protect appellant's rights because unlike CALJIC 2.01, it did not embody the principle that 'to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.' " (Quoting People v. Livingston (2012) 53 Cal.4th 1145, 1167.)
CALJIC No. 2.01 was the predecessor of CALCRIM No. 224, and they have been described as "substantially the same." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171, fn. 12; accord, People v. Contreras (2010) 184 Cal.App.4th 587, 591, fn. 4.) The very same Supreme Court opinion cited by defendant endorsed a trio of Court of Appeal decisions holding that CALCRIM No. 224 is a correct statement of the law regarding circumstantial evidence and does not in any way lighten the prosecution's burden of proof. (People v. Livingston, supra, 53 Cal.4th 1145, 1166, citing People v. Smith (2008) 168 Cal.App.4th 7, 18; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187; People v. Anderson (2007) 152 Cal.App.4th 919, 929-934.)
We, too, perceive no difference between the two instructions. CALCRIM No. 224 advises the jury it "must accept the [reasonable construction of circumstantial evidence] that points to innocence," whereas CALJIC No. 2.01 tells the jury "you must adopt that interpretation that points to the defendant's innocence." Each version is equally emphatic on this point. We also note that CALCRIM No. 224 makes explicit a point that is only implicit in CALJIC No. 2.01, namely, that the burden of proof is on "the People."
CALCRIM No. 376
Over defendant's objection, the jury was instructed with CALCRIM No. 376 as follows: "If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of robbery, grand theft, or petty theft based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery, grand theft, or petty theft. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery, grand theft, or petty theft. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Defendant's final argument is that the jury should not have been allowed to draw the permissive inference because there was insufficient evidence that he ever possessed any items of personal property taken from Seeney and Konaris. The first part of this opinion discussed the sufficiency of the evidence, including evidence of defendant's possession. Although that evidence cannot be called overwhelming, it is an adequate basis for a permissive inference.
DISPOSITION
The judgment of conviction is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.