Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA069846, Laura C. Ellison, Judge.
Susan L. Ferguson, 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, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Dezmon Terelle Brooks, appeals the judgment entered following his conviction, by jury trial, for attempted robbery (2 counts) and false imprisonment, with firearm use enhancements (Pen. Code, §§ 664/211, 236, 12022.5, 12022.53). Brooks was sentenced to state prison for a term of 18 years 3 months.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
On the night of July 20, 2006, Vanessa Madrid and Sarina Soler were working at a Blockbuster Video store on Centinela Avenue in Los Angeles. Madrid first noticed defendant Brooks when he came into the store about 11:30 p.m. At midnight, Madrid locked the store’s front door to prevent any more customers from entering. Madrid was at the front register with a customer, Nanci Alvarez, when Soler came scurrying over. Brooks then walked up and asked Alvarez to come over to him. When she refused, he pulled a gun from his sweatshirt and announced he was going to rob them.
Brooks told Madrid to take Alvarez to the bathroom while Soler remained at the front register. As Madrid was walking toward the rear of the store with Alvarez and Brooks, she signaled to Soler to call 911. When they got to the bathroom, Brooks had Madrid unlock the door and then he ordered Alvarez to go inside. After the bathroom door was closed, Brooks ordered Madrid to unlock the office so he could get the store’s surveillance tapes. But the videotape container was locked and Madrid did not have the key. Brooks tried, unsuccessfully, to pry it open. Then he glanced at the surveillance monitor and noticed Soler was on the phone. Brooks ran to the front of the store.
At the same time, Soler ran to the rear of the store and knocked on the office door. Madrid let her in and shut the door. Madrid took the phone from Soler and spoke to the 911 operator. After a while she heard a loud noise, and then sirens and helicopters. Over the phone, the police said it was safe to come out. Madrid saw that the glass in the store’s front door had been shattered.
Madrid identified Brooks as the perpetrator at the preliminary hearing and at trial. She did not, however, identify him in a photo array, and at a live lineup she identified someone else. Madrid testified the photo array pictures had been black and white, not color. At the live lineup, she had been too unsure to make any identification, but then she picked someone after an officer asked whom she would pick if she had to choose someone.
Soler positively identified Brooks in a photo array and at the preliminary hearing. At trial, however, she testified Brooks was definitely not the perpetrator. She testified the perpetrator was wearing “a white hooded [sweatshirt] with blue ecko writing, specifically blue ecko.” The perpetrator showed Soler a gun and escorted her to the front of the store, where she told Madrid the store was being robbed. When the perpetrator took Madrid and Alvarez to the rear of the store, Soler called the police. After she found refuge with Madrid, Soler heard the sound of shattering glass.
Nanci Alvarez did not testify.
Dru Morris-Watson testified she had been dating Brooks at the time the crime was committed. At about 11:00 p.m. that night, she was at home with Brooks and her child. Brooks was wearing her best friend’s white hooded Ecko sweatshirt, which had blue writing on the front. Brooks had Morris-Watson’s cell phone. He left her house about 11:20 p.m., saying he would be right back. He did not return until after midnight.
The Blockbuster Video store on Centinela is 10 minutes away from Morris-Watson’s home. When Brooks returned, he “was panicking, kind of rushing.” There was blood on the sweatshirt and one of his hands was bleeding. “He just kept telling me to ‘Come on, come on,’ that he needed to get my phone back.” Brooks and Morris-Watson’s sister drove to the Blockbuster, but it had been cordoned off by the police.
When Brooks returned, he told Morris-Watson he had been involved in an attempted robbery. He said he had been inside the Blockbuster bathroom until after closing time. He described taking Madrid and Alvarez to the back of the store and then seeing Soler on the surveillance monitor talking on the phone, at which point he fled. He had to break a glass door to get out and that’s how he hurt his hand. Morris-Watson testified she did not report Brooks to the police because: “I was scared. I didn’t know what to do. I had never been in a situation like that before. I just wanted my cell phone back.”
Morris-Watson first spoke to Detective Nondice Mason, in August. She told the detective she had dropped the cell phone inside the Blockbuster store when she went to get a movie. This was the story Brooks wanted her to tell. In November, Mason made a visit to Morris-Watson’s place of work: “She came into my job, scared the daylights out of me because she flashed her badge in my face to let me know she was serving me with a subpoena to come to court and she wanted to talk to me.... [S]he asked me... what happened that night, just be honest about everything, and that’s when I told her the truth that I was never at Blockbuster.” Morris-Watson testified Detective Mason never threatened her.
Detective Mason testified a cell phone was found in the Blockbuster store after the attempted robbery. Mason dialed the contact entry labeled “Mom” and spoke with Debra Morris, Morris-Watson’s mother. After Mason told Morris she was investigating the case, Morris blurted out, “My daughter’s boyfriend robbed that store.” Morris gave Mason defendant Brooks’s name and the license plate number of his car.
After obtaining a photograph of Brooks, Mason put together a black and white six-pack photo array. She showed it to Soler, who “almost immediately... picked... out” Brooks, saying: “Yeah, that’s him. I know that’s him. I didn’t see the hair, but I know that’s him.”
On November 22, 2006, Mason interviewed Morris-Watson again because she didn’t believe the story that Morris-Watson knew nothing about the crime. This time, Morris-Watson said Brooks had admitted committing the crime and dropping her cell phone at the scene. She also said Brooks gave her the tennis shoes he had been wearing that night and told her to hide them. She later gave these shoes to Mason, who found a square piece of glass embedded in the bottom of one of them. Mason testified these tennis shoes were “very similar” to those the perpetrator is seen wearing in the Blockbuster surveillance videotape. Mason never showed Morris-Watson any images from the Blockbuster surveillance tapes.
Detective Mason was present at the preliminary hearing on November 28, 2006. Brooks’s family and friends were in the courtroom. There was a loud exchange of words between them and the victims, so Mason removed the victims from the courtroom. Mason testified both Soler and Madrid identified Brooks as the perpetrator at the preliminary hearing.
2. Defense evidence.
Morris-Watson testified she had written letters to Brooks while he was in custody. In one, she apologized for not sticking to the original story he had wanted her to tell, i.e., that she had lost her cell phone when she went to the Blockbuster store to get a video.
Brooks’s sister, his cousin, and an old friend all testified a woman who appeared on the Blockbuster surveillance videotape was Morris-Watson.
CONTENTIONS
1. The trial court erred by admitting evidence Soler had been shot prior to trial.
2. The trial court erred by denying Brooks’s motion for a post-trial continuance to prepare an affidavit in support of a new trial motion.
3. The trial court erred by refusing to stay the sentence imposed on the false imprisonment conviction.
DISCUSSION
1. Trial court did not err by admitting evidence Soler had been shot.
Brooks contends the trial court erred by admitting evidence that Soler, one of the two testifying victims, had been shot prior to trial. He argues this evidence was irrelevant and unduly prejudicial. This claim is meritless.
a. The disputed testimony.
During the direct examination of Soler, the following colloquy occurred:
“Q. Now, do you think your memory is clearer today as to what happened or do you think it was clearer back when you testified [at the preliminary hearing]?
“A. I really couldn’t tell you, but I know that I looked him in his eyes. The man who robbed that store, I looked him in the eyes. The last time I testified against this man, I couldn’t look him in his eyes. And now that I’m here today, I feel bad because I know the wrong man is here.
“Q. By [the prosecutor]: Now, do you remember testifying at the preliminary hearing and identifying the person in court as the person?
“A. Yes, sir, I did. I did do that. But I didn’t look him in his eyes. I didn’t think it mattered. But now I’m here today for a reason. I’m here for a reason today and I know that now. And that’s not the man who robbed that store.”
The prosecutor asked about the photo array Detective Mason showed Soler, and Soler acknowledged having made a positive identification from the photo array. The following colloquy then occurred:
“Q. Now, during... your testimony, you testified that you ran [i.e., during the attempted robbery] and today you are in a wheelchair. Is there something that happened since you testified [i.e., at the preliminary hearing]?
“A. Not nothing to do with this case. [¶]... [¶] It has nothing to do with this case, I don’t believe.
“The Court: He’s not asking about that. He just wants to know if there is something different or something happened – or what was your question?
“Q. By [the prosecutor]: Did something happen to you?
“A. Yeah.
“Q. What happened?
“A. I got shot.
“Q. And you don’t know if it’s related to this case or not?
“A. No, it’s not.
“Q. How do you know that?
“A. I don’t.
“Q. Are you afraid today to testify and identify the defendant because of what happened to you?
“A. No.”
The trial court overruled Brooks’s objections to this testimony, reasoning “there has been some significant changes from her [statements] at two prior occasions” and “there may be a reasonable conclusion that the jury could draw about why she’s not identifying the defendant” now. Brooks now claims this ruling was erroneous.
b. Legal principles.
Evidence Code section 780 provides: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶]... [¶] (f) The existence or nonexistence of a bias, interest, or other motive. [¶]... [¶] (j) His attitude toward the action in which he testifies or toward the giving of testimony.”
“[E]vidence that a witness is afraid to testify is relevant to the credibility of that witness and therefore admissible.” (People v. Warren (1988) 45 Cal.3d 471, 481.) “ ‘Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.]’ [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)
“On appeal, we review for an abuse of discretion a trial court’s admission of evidence as relevant. [Citations.]... [¶] Evidence is relevant if it has ‘any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ [Citations.] ‘ “The test of relevance is whether the evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’ ” ’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1057-1058.)
Under Evidence Code section 352, a trial court has discretion to exclude evidence if its probative value is substantially outweighed by the probability of wasted time or the danger of undue prejudice, confusing the issue, or misleading the jury. (Evid. Code, § 352.) A trial court’s exercise of this discretion will not be overturned on appeal absent a showing its discretion was abused. (People v. Raley (1992) 2 Cal.4th 870, 895; see also People v. Von Villas (1992) 10 Cal.App.4th 201, 268 [decision to admit or exclude evidence lies within discretion of trial court and erroneous decisions are tested under Watson harmless error standard].)
People v. Watson (1956) 46 Cal.2d 818, 836.
c. Discussion.
Brooks argues this testimony should have been excluded as irrelevant because there was no evidence he “had anything to do with Soler’s injury, nor was there evidence that she believed he had anything to do with it.” He asserts “the jury could not have reasonably inferred that Soler was lying based on an entirely unrelated incident, that Soler herself did not believe was related.” Brooks is wrong.
As noted, ante, evidence that a witness may be afraid to testify is admissible even if the reason, e.g., a threat of retaliation, cannot be linked to the defendant. Brooks argues his situation is different because Soler herself testified “she was not afraid because she did not believe that appellant had anything to do with [her shooting],” and “there was... no evidence that [Soler] was lying[.]” (Italics added.)
We disagree with Brooks’s reading of the evidence. Although Soler initially testified she did not believe her shooting had anything to do with the case, she ultimately conceded she had no way of knowing one way or the other. Hence, the theory Soler might have changed her testimony because she had been shot was not based on mere speculation and was relevant to the jury’s assessment of her credibility. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1142 [“evidence that [witness] feared retaliation for testifying against defendant was [properly] offered for the... purpose of explaining inconsistencies in portions of her testimony, including her equivocal responses when asked whether she feared retaliation”]; cf. People v. Renteria (1964) 61 Cal.2d 497, 499 [in robbery case, prosecution was not bound by clerk’s testimony he did not act out of fear because other evidence tended to show he was afraid: it was “not reasonable to suppose that, particularly with his employer in the store, the clerk would have given the employer’s money to an unauthorized stranger who demanded possession at the point of a gun, had the clerk not been in fear that injury to himself or his employer would result if he failed to comply with the demand”].)
Indeed, a case cited by Brooks makes precisely the point that this kind of evidence is admissible even where the witness does not admit to any fear. In People v. Brooks (1979) 88 Cal.App.3d 180, one of two eyewitnesses to a robbery identified the defendant in a photo array, but then failed to identify him in a lineup and at trial. The witness, Audrey Blount, testified she failed to identify the defendant because she became confused and “ ‘it put some doubt in my mind whether it was him or not.’ ” (Id. at p. 184.) The prosecutor suggested the witness’s confusion had been caused by learning that the defendant’s mother tried to get the other eyewitness to recant her identification. The trial court initially granted a defense motion to strike this line of questioning, but “then instructed the jury that what Blount may have heard was not offered for whether it was true but only to show her state of mind.” (Id. at p. 185.) On appeal, the defendant claimed the testimony was irrelevant. The court of appeal rejected the claim: “[I]t was offered for a proper credibility purpose under Evidence Code section 780. After the robbery, Blount had initially identified defendant as the perpetrator of the crime. Her later retraction of that identification presented a credibility issue on which the jury was entitled to hear evidence in order to resolve or understand the cause of her inability to make the identification in court.” (Id. at p. 187, fn. omitted.)
Brooks asserts these principles do not apply to his case because “Soler’s testimony did not significantly change.” Not so. Soler herself testified she positively identified Brooks as the perpetrator when she was shown the photo array, and that at the preliminary hearing she testified Brooks looked similar to the perpetrator. At trial, however, Soler testified Brooks was definitely not the perpetrator. We agree with the Attorney General’s characterization of Soler’s trial testimony as a complete reversal.
This was the first preliminary hearing. The case was subsequently dismissed and refiled, but Soler did not testify at the second preliminary hearing.
Brooks also asserts the trial court erred by giving the following jury instruction: “During the trial, certain evidence was admitted for a limited purpose. You heard evidence that Serena Soler was shot after testifying at a preliminary hearing. There is no evidence that the defendant had anything to do with that event. It was admitted for the sole purpose of explaining her state of mind. You may consider that evidence only for that purpose and for no other.” Brooks argues the evidence of Soler’s shooting “did not fall within the state of mind exception to the hearsay rule because the statute governing the exception, Evidence Code section 1250, deals with admissibility of a statement offered to prove the declarant’s state of mind or conduct.” However, in the circumstances of this case, it is apparent the instruction’s reference to “state of mind” referred to Soler’s attitude toward testifying, i.e., to her credibility. (See, e.g., People v. Brooks, supra, 88 Cal.App.3d at p. 187 [discussing purported Evidence Code section 780 evidence, court of appeal referred to “credibility (or ‘state of mind’ as the trial court termed it)”].)
Finally, Brooks asserts the evidence should have been excluded as too prejudicial under Evidence Code section 352: “Soler’s testimony was merely cumulative to other available evidence. Madrid identified appellant as the perpetrator at trial and Morris-Watson testified that appellant was with her on the night of the robbery and confessed to the crime. On the other hand, evidence suggesting that appellant shot a witness, who appeared before the jury in a wheelchair, is so inflammatory that it... rendered the trial fundamentally unfair.” We disagree.
“ ‘[W]hen an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers “substantially outweigh” probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) “ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is... “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958.) This prejudice “applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual....” (People v. Karis (1988) 46 Cal.3d 612, 638.)
Soler’s testimony was extremely probative. As the Attorney General argues, “Appellant’s sole defense... was that he was not the man who attempted to rob the Blockbuster store that evening. Thus, the identity of the attempted robber was the material issue the jury had to decide. In this regard, the credibility of Ms. Soler’s and Ms. Madrid’s identifications of appellant was highly relevant since they were the victims....” On the other hand, there was little risk of prejudice because no one claimed Brooks had been involved in the shooting of Soler, and this was made expressly clear to the jury by the trial court’s instruction. Hence, the jurors well knew they were to consider the evidence only in deciding whether Soler’s recantation of her positive identification was believable. The trial court did not abuse its discretion by finding this evidence was more probative than prejudicial.
In sum, we conclude the trial court did not err by admitting this testimony.
2. Continuance to file new trial motion was properly denied.
Brooks contends the trial court erred when it refused to grant him a continuance in order to prepare materials for a new trial motion. This claim is meritless.
a. Proceedings below.
On the day set for sentencing, Brooks asked for a continuance in order to submit a formal new trial motion based on newly discovered evidence. Defense counsel told the trial court that two days earlier he had received a telephone call from Akina Mitchell, the father of Morris-Watson’s child. Mitchell said Morris-Watson had lied about Brooks being the perpetrator after she was pressured by Detective Mason and her mother. Defense counsel had a letter signed by Mitchell containing these claims, but the letter had not been executed under penalty of perjury. The trial court denied a continuance on the ground Mitchell’s testimony would not have made any difference in the outcome of the trial.
b. Legal principles.
A defendant is entitled to a new trial on grounds of newly discovered evidence only if the evidence is: newly discovered; not merely cumulative; such as to render a different result probable on retrial; and, not reasonably available at trial. (People v. Martinez (1984) 36 Cal.3d 816, 821.) “A motion for a new trial on newly discovered evidence is looked upon with disfavor, and unless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.” (People v. McDaniel (1976) 16 Cal.3d 156, 179.) The trial court may consider the credibility as well as the materiality of the proffered new evidence in its determination of whether it would render a different result reasonably probable. (People v. Delgado (1993) 5 Cal.4th 312, 329.)
“ ‘ “The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion....” ’ [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.) “A continuance will be granted for good cause (§ 1050, subd. (e)), and the trial court has broad discretion to grant or deny the request. [Citations.] In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1012-1013, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
c. Discussion.
Brooks cites People v. Gaines (1961) 192 Cal.App.2d 128, as a typical case finding error where a trial court denies a continuance request in this kind of situation. But in Gaines the evidence showing the defendant was guilty of robbery had been very close. The inculpatory evidence consisted of a single witness’s stranger identification and an accomplice’s confession, while the purported new evidence was the accomplice’s claim his confession had been false and the defendant had nothing to do with the robbery. Moreover, the newly discovered exculpatory evidence would have corroborated a strong alibi defense: six witnesses testified at trial that the defendant had been elsewhere at the time of the robbery. (Id. at p. 134.)
Although Brooks, too, claimed he had been misidentified, he did not put on any alibi evidence. In addition, his newly found witness apparently had a significant credibility problem. The prosecutor told the trial court he had spoken to Morris-Watson about Mitchell’s letter, that she denied telling Mitchell she had lied about Brooks, and that she and Mitchell were in the middle of a custody dispute over their child.
In addition to Mitchell’s apparent credibility problem, the newly discovered evidence was unlikely to impeach Morris-Watson for two other important reasons. First, Morris-Watson did not appear to have any motive for falsely implicating Brooks, and the theory she had been brow-beaten into perjuring herself by her mother and Detective Mason was not very credible. Second, the evidence showed Morris-Watson knew details of the crime she could only have received from the perpetrator, e.g., the clothes he was wearing and the things he did to the victims.
Hence, we conclude the trial court did not abuse its discretion by refusing to grant Brooks a continuance so he could perfect his new trial motion.
3. Multiple punishment was proper.
Brooks contends the trial court erred by failing to stay his sentence on the false imprisonment conviction. He argues this failure violated section 654 because the false imprisonment had been merely incidental to his single objective of committing robbery. This claim is meritless.
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“Multiple punishment for violent offenses involving different victims is not barred by section 654. [Citation.]” (Peoplev.Higareda (1994) 24 Cal.App.4th 1399, 1413; see People v. Young (1992) 11 Cal.App.4th 1299, 1311-1312 [consecutive sentences for robbery-felony-murder and robbery not barred by § 654 where defendant robbed one person and in commission of that robbery killed second person].) “The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784; see People v. Miller (1977) 18 Cal.3d 873, 886, disapproved on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8 [§ 654 does not bar punishment for armed robbery of clerk and violent burglary against guard of same store].) “The preclusion of section 654’s application does not depend upon a determination that the victims of one violent crime are entirely different from the victims of a second violent crime committed in the same course of conduct. As long as each violent crime involves at least one different victim, section 654’s prohibition against multiple punishment is not applicable. [Citations.]” (People v. Masters (1987) 195 Cal.App.3d 1124, 1128.)
In count 2, Brooks was convicted of false imprisonment by violence (Pen. Code, §§ 236, 237, subd. (a)) against Alvarez, the customer in the Blockbuster store. His attempted robbery convictions were committed against the two Blockbuster employees, Madrid and Soler. The only punishment Brooks received for his crime against Alvarez arose out of the false imprisonment conviction. Hence, the trial court did not violate section 654 by failing to stay Brooks’s sentence for false imprisonment.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.