Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BA336858 of Los Angeles County, Rand S. Rubin, Judge. Affirmed in part, reversed in part and remanded.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II, Joseph P. Lee, and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Defendant Shawn Torell Belin challenges his convictions of two counts of second degree robbery with several enhancements. We conclude that the prosecutor committed misconduct during his rebuttal argument by improperly relying on alleged statistical probabilities to bolster eyewitness identifications of defendant. The statistical evidence had not been admitted during trial and was used to suggest defendant’s guilt could be calculated based on mathematical probabilities. We conclude that with respect to one count of robbery, the argument was prejudicial and reverse that conviction. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Information and Plea
Defendant was charged with two counts of second degree robbery (Pen. Code, § 211). It was further alleged that with respect to one of the robberies he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1) and committed great bodily injury within the meaning of section 12022.7, subdivision (a). It was alleged that defendant suffered two prior robberies, which were serious or violent felonies within the meaning of the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Four prior prison terms were alleged. Defendant pled not guilty and was tried by a jury on the substantive offenses and by the court on the prior conviction allegations.
Undesignated statutory citations are to the Penal Code.
2. Trial on the Substantive Offenses
It was undisputed that on separate dates in February 2008, Sara Villegas and Julia Zhigulina were robbed inside their apartment building on Normandie Avenue. The sole issue at trial was the identity of the robber.
a. February 14, 2008 Robbery
On February 14, 2008, as Sara Villegas waited for the elevator in her apartment building, a man hit her on the side of her head. The man took Villegas’s purse, forcefully pulling it from her. Villegas described the robber as an overweight African-American male and estimated his height at 5’6” and his weight at 210 pounds.
Villegas identified defendant’s photograph, stating, “‘I think it was the one who assaulted me and hit me.’” She also selected him from a photographic lineup because the person looked like the assailant even though she thought the assailant’s skin was a lighter hue. At the preliminary hearing, Villegas initially identified defendant, but then recanted the identification. Villegas did not identify defendant at trial.
Detective Brian Martin was the only other witness who testified at the preliminary hearing.
b. February 20, 2008 Robbery
As Julia Zhigulina entered the elevator of her apartment building on February 20, 2008, she was attacked by a man who held a knife to her face and tried to take her purse. As she fell against the elevator wall, the assailant stepped on her leg, breaking it and damaging her knee. The elevator descended to the basement, ascended to the fourth floor and descended back to the lobby, where defendant fled, leaving Zhigulina screaming in pain. At the time of trial, she could not walk. She described her assailant as “African American... very... heavyset, fat,” with a “very round face.”
Zhigulina identified defendant in court as her assailant, stating: “This is the man that attacked me.” Previously, she had identified a photograph of defendant from a six-pack, writing: “[T]his man attacked me in the elevator with a knife. He stepped on my knee and pulled my purse from me.” At one point, she testified that she believed defendant’s photo was in a second six-pack shown to her, but that photospread was not in evidence.
Michelle Archuletta and her sister, Stephanie Soto, also lived in the Normandie Avenue apartment building. On February 20, 2008, they were returning from the grocery store with Archuletta’s niece and were in the basement waiting for the elevator. Archuletta heard loud repeated screams coming from the elevator. They exited the basement onto Normandie and saw a man leaving the apartment building, moving quickly down the front steps. He walked between Archuletta and her niece, close enough to graze Archuletta’s shoulder. Archuletta described the man, who was wearing a dark jean jacket and a beanie, as “big, stocky, African American” with “wide-set eyes” and “darker skin tone.” She estimated his height as approximately 5’9”.
When shown a photospread, Archuletta selected defendant’s photo, writing: “No. 4 is the person who I seen come out of [the Normandie Avenue apartment building] on 2-20-08 when an older woman was robbed in the elevator of the same.” At trial, Archuletta again identified defendant as the man she had seen on February 20th. She had “star[ed] right at him” and the light was good. She was confident of her identification.
Stephanie Soto, Archuletta’s sister, testified that as she, her daughter, and Archuletta returned to the apartment on February 20th, she heard loud screams coming from the elevator, “like somebody was being seriously hurt.” While in front of the apartment building she saw a man exit the front door, moving quickly down the front stairs as if in a hurry. He walked between Soto and her sister, who were separated by a distance of five to seven feet, heading south on Normandie. Soto observed that he was wearing a denim jacket and carrying what appeared to be a woman’s purse tucked under his arm. Soto described the man as a “large African American male,” indicating he was large “[b]oth weight and height wise” and was taller than she (5’4”). She estimated his age to be “mid to late 30’s” and his weight to be between 220 and 250 pounds.
When shown a photographic six-pack, Soto selected defendant’s photo as that of the man she had seen leaving the building, writing: “‘I seen this man walking down the front steps of the building. He walked right between my sister and I.’” At trial she testified she was “positive” when she selected defendant’s photograph that the person depicted was the man she had seen walk out of the apartment building with the purse under his arm. Soto identified defendant in court, testifying “there is no question” he was the person she saw on February 20th.
Endro Soebiyakto managed the apartment building where Villegas and Zhigulina lived. On February 20, 2008, he heard loud crying coming from the elevator. As he attempted to find out what had happened, he passed in the stairwell a dark-skinned African-American male of medium height and a “large shape.” The man was wearing “black or blue.” Soebiyakto did not identify defendant in court. When previously shown a photospread, Soebiyakto had circled the photo of defendant, noting: “Look like No. 4, but the skin and nose, lips, look different.” Soebiyakto acknowledged having told the police that a fat African-American male had previously visited Roger Wilkins in the apartment building.
c. Defendant’s Testimony
Defendant testified. He stated that at the time of trial he was 33 years old. He previously had been convicted of two robberies and possession of narcotics for sale. He had spent time in prison and had been released approximately five months before the robberies. His cousin, Roger Wilkins, lived in the Normandie apartment building, and defendant had visited him there on several occasions since his release from prison. Defendant testified he was legally blind in one eye and had blurred vision in the other. A gunshot wound to the hip had left him in chronic pain, and he suffered from chronic arthritis and fluid on his knees, rendering him unable to run. He denied having robbed Villegas or Zhigulina. He acknowledged having been in the building several times in February 2008, including on February 20th.
Medical records indicated that in May 2007, defendant was 5’9” and weighed 316 pounds.
d. Argument
During rebuttal, the prosecutor argued: “What are the odds? Maybe some of you are more science-minded. I am not. I had to call my brother last night and I asked him if we had a situation where we had 5 individual people that had 6 choices each of these people and they were to randomly choose one of the 6, what are the odds? It’s 1 in 6. That is simple enough. I said, what would the odds be if all five people were to pick the same individual? If they did so with no other factor, that would make number 4 [the position of defendant’s photograph] more significant to them.”
Following an objection, which the court overruled, the prosecutor continued: “You take 1 over 6, one set of 6 for each card and multipl[y] them all the way 16 times 16 times 16 all the way and you get 1 over 7,776.”
The court overruled another objection and the prosecutor continued: “Mathematically, this is 7,776 to 1. That is the ratio, what that means is out of 7,776 times that you would do that experiment[,] 5 random people looking at 6 random photographs and all of them coming up and selecting number 4 would happen one time out of 7,776 times. Now, if [defense counsel] had an opportunity to re argue... I assume he would say something to the nature that, well, one time it could happen would be the first time we did this experiment. It could be the one time, first time all 6 people [identified defendant’s photograph]. That would mean[] the other 7,775 times this would not statistically occur.”
The prosecutor continued as follows: “In case you are not confident in my math -- and I don’t blame you -- if you want to write the equation, feel free to multiply that out. The numbers do match.” Then the prosecutor asked, “[w]hat is 7,001 over 7,776? It’s 0.00012 percent. Less than 1 hundreths of a percent likelihood statistically that 5 individual people would select the defense’s photograph unless defendant was the man who robbed the two victims and the defendant was the man that each of the 3 witnesses saw that day, 2/20/08.”
Defense counsel again objected and requested an instruction asking the jury to disregard the argument that had “nothing to do with any of the evidence....” and was a “guessing game.” The court overruled the objection.
3. Verdict
The jury found defendant guilty of both counts of second degree robbery. With respect to the robbery of Zhigulina, the jury found that defendant personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1) and personally committed bodily injury within the meaning of section 12022.7, subdivision (a). The court found defendant committed two strike priors (§§ 1170.2, subds. (a)-(d), 667, subds. (b)-(i)) and four one-year priors (§ 667.5).
4. Motion for New Trial
Defense counsel moved for a new trial, arguing that the prosecutor had improperly relied on statistical evidence during closing argument. The court denied the motion, stating that the eyewitness identifications in this case were “pretty good.”
5. Sentence
Defendant’s total sentence was 54 years to life in prison. For each count the court sentenced defendant to an indeterminate term with a minimum 25-year sentence. For the personal use of a deadly and dangerous weapon enhancement, the court sentenced defendant to a consecutive one-year sentence. For the personal infliction of great bodily injury enhancement, the court sentenced defendant to three consecutive years. The court struck the four section 667.5, subdivision (b) one-year priors. The court denied defendant’s motion to strike a prior strike conviction.
DISCUSSION
Defendant argues the prosecutor’s argument was improper, and the trial court should have sustained his counsel’s objections to it. Respondent contends that the prosecutor’s remarks were proper and, in any event were harmless.
1. Prosecutorial Misconduct
Standards governing prosecutorial misconduct are well established. “‘“‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.””” [Citation.]’ [Citation.]” “‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.]”’” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)
In contrast to referring to items of common knowledge, referring to facts not in evidence is misconduct. (Hill, supra, 17 Cal.4th at pp. 827-828.) Such statements “‘tend[] to make the prosecutor his own witness -- offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’” (Hill, supra, 17 Cal.4th at p. 828.)
a. The Prosecutor Should Not Have Referred to Matters Not in Evidence and Not of Common Knowledge or Experience
Here, the prosecutor argued without factual support that there was a 1 in 7,776 chance that five people would randomly select defendant’s photograph. The prosecutor relied on his unnamed brother’s unsworn and untested extra judicial conclusions. (People v. Benson (1990) 52 Cal.3d 754, 795 [argument beyond the evidence “may suggest the existence of ‘facts’ outside the record -- a suggestion that is hard for a defendant to challenge and hence is unfair”].) Even the prosecutor recognized that the statistical analysis was not a matter of common knowledge as he argued that because he was not “science-minded,” he had to rely on his brother’s statistical analysis. Using closing argument to reveal testimony of an uncalled witness is improper. (People v. Hall (2000) 82 Cal.App.4th 813, 817 [prosecutor committed misconduct when “in the guise of closing argument, told the jury what the testimony of an uncalled witness would have been”].)
b. Reliance on a Mathematical Formula to Bolster the Eyewitness Identifications Was Improper
In People v. Collins (1968) 68 Cal.2d 319 (Collins), the Supreme Court held that it was error to admit testimony of a mathematics professor suggesting that there was a one in 12 million chance that any couple possessed the characteristics of the co defendants, including their use of a yellow automobile, the African-American man having a mustache, and the white woman having blond hair and a ponytail. (Id. at p. 325.) The prosecutor sought to establish there was an “overwhelming probability that the crime was committed by any couple answering such distinctive characteristics.” (Ibid.) The court found that the testimony lacked an adequate foundation and “distracted the jury from its proper and requisite function of weighing the evidence....” (Id. at p. 327.) “Confronted with an equation which purports to yield a numerical index of probable guilt, few juries could resist the temptation to accord disproportionate weight to that index....” (Id. at p. 330.)
The Supreme Court later distinguished expert testimony that “was not cloaked in scientific garb but was expressed as a matter of professional experience gained over a lengthy period of observation.” (People v. Prince (2007) 40 Cal.4th 1179, 1228 (Prince).) In Prince, the challenged evidence concerned testimony that the same person committed all the crimes and was based on an expert’s experience in evaluating records of hundreds of crime scenes. (Id. at p. 1226.) The expert did not use a mathematical formula or refer specifically to the defendant. (Id. at pp. 1227-1228.)
This case is more similar to Collins than to Prince. The prosecutor purported to refer to a mathematical formula to add weight to the eyewitness identifications. He presented an unclear and unfounded formula for calculating the odds of “random” identification from a six-pack. Use of the statistical evidence to advance a claim that defendant was guilty of the charged robberies was improper. (Collins, supra, 68 Cal.2d at p. 332 [court erred in admitting over objection evidence relating to theory of probability]; see also People v. Cella (1983) 139 Cal.App.3d 391, 404 [the “interjection into criminal proceedings of sophisticated theories of mathematical probability raises a number of serious concerns”].) The prosecutor’s argument was improper, and the trial court should have sustained defense counsel’s objection to it.
2. Prejudice
The remaining issue is prejudice. “If a prosecutor’s argument refers to extra judicial statements not admitted at trial, the defendant may be denied his right under the Sixth Amendment to confrontation and cross-examination, thus requiring reversal of the judgment unless the court is satisfied beyond a reasonable doubt that the misconduct did not affect the verdict.” (People v. Harris (1989) 47 Cal.3d 1047, 1083, disapproved on another ground in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.) Here, the prosecutor recited the content of his conversation with his brother who provided a mathematical formula to bolster the eyewitness identifications. Defense counsel was denied an opportunity to address the argument or to challenge the factual basis of the prosecutor’s extra judicial assertions. Because the prosecutor’s argument implicated defendant’s right to confrontation, we must determine whether beyond a reasonable doubt “the misconduct did not affect the verdict.” (People v. Harris, supra, 47 Cal.3d at p. 1083; People v. Hall, supra, 82 Cal.App.4th at p. 817.)
The prosecutor could properly have argued that the identifications of defendant by multiple eyewitnesses, before and during trial, bolstered each other and supported the conclusion that defendant committed the robberies. It was error, however, to assign a specific probability to the eyewitnesses’ selection of defendant from photographic six-packs. With respect to the robbery of Villegas, the error cannot be deemed harmless beyond a reasonable doubt. Villegas was the only person who testified regarding the February 14 robbery, and although she identified defendant in a photographic lineup, she recanted her identification at the preliminary hearing and was unable to identify him during trial. Villegas’s out-of-court identification, though clearly sufficient to support the judgment, might have been rejected, absent the improper statistical evidence linking her identification to that of witnesses’ describing a different crime.
In contrast, with respect to the robbery of Zhigulina, multiple percipient witnesses who testified identified defendant as the robber -- some, multiple times. Zhigulina, the victim, selected defendant’s photograph from a six-pack and again identified him as her assailant at trial. Her identifications were unequivocal. Archuletta, who saw the robber immediately after the attack, selected defendant’s photograph from a six-pack and identified him again at trial, expressing confidence in her identification. Soto, who also saw the robber leaving with a purse under his arm, was “positive” when she selected defendant’s photograph from a six-pack and again identified him at trial, stating that there was “no question” defendant was the man she’d seen pass within a few feet of her. Different witnesses’ descriptions of the robber -- as an unusually heavyset African-American male of average height -- matched defendant’s physical description. Defendant himself admitted to having been in the building multiple times in February 2008, including the day of the second robbery. While he offered a benign explanation for his presence, the jury was not required to believe it, especially in light of his admitted prior robbery convictions. Nor was the jury required to credit defendant’s self-serving claim that his physical limitations prevented him from moving quickly away from the scene. In short, there was strong evidence from multiple percipient witnesses who had ample opportunity to view the robber, and whose testimony corroborated each other, that defendant -- admittedly in the apartment on the day of the second robbery -- assaulted and robbed Zhigulina. On this record, we conclude there is no reasonable likelihood that the prosecutor’s improper comments affected the verdict as to the second robbery.
The jury was instructed regarding eyewitness identifications as follows: “You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant prior to the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Were there any other circumstances affecting the witness’s ability to make an accurate identification? [¶] Was the witness able to identify other participants in the crime? [¶] Was the witness able to identify the defendant in a photographic or physical lineup?”
While the prosecutor’s reliance on extra judicial “statistics” implicates concerns similar to those in Collins, we note the obvious difference in the cases. Collins involved the introduction of statistical evidence through an expert witness, and such improper evidence was thus clearly before the jury for its consideration. (Collins, supra, 68 Cal.2d at p. 325.) In contrast, here, the prosecutor’s comments were made in argument, and the jury was instructed not to consider such comments as evidence. Additionally, in Collins the prosecutor relied on statistical evidence to bootstrap a case notably lacking in eyewitness identifications. (Id. at pp. 324-325.) Here, in contrast, multiple eyewitnesses identified defendant on multiple occasions. Finally, unlike Collins, which the court described as “apparently a close [case]” based on the length of deliberations and multiple ballots, here, the jury apparently reached its verdict in roughly two hours. (Id. at p. 332.)
DISPOSITION
The judgment is affirmed in part and reversed in part. The case is remanded to the trial court.
We concur: EPSTEIN, P. J., WILLHITE, J.