Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR 169721.
Kline, P.J.
Jamal Easterling was convicted, following a jury trial, of first degree home invasion robbery. On appeal, he contends (1) the trial court improperly limited his right to cross-examine the prosecution’s DNA expert regarding the reliability of her lab’s findings; (2) the trial court improperly admitted evidence of a prior robbery by appellant and his codefendant because it was not sufficiently similar to the charged offense; (3) the trial court improperly vouched for the testimony of a prosecution witness; (4) the prosecutor improperly commented on appellant’s constitutional right not to testify when he elicited testimony from a police officer that the police attempted to obtain a statement from appellant; and (5) the cumulative effect of the errors requires reversal. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by information with three counts of home invasion robbery (Pen. Code, § 212.5–counts one, five, and six), and three counts of false imprisonment (§ 236–counts two, three, and four). The information also alleged that appellant committed the robberies in concert with others (§ 213, subd. (a)(1)(A)), and that a principal was armed with a firearm for all offenses (§ 12022, subd. (a)(1)). The information further alleged that appellant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), two prior strike convictions (§ 667, subds. (b)-(i)), and a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant’s codefendant, Runako McDonald, was charged with these same offenses.
A jury found appellant guilty of one count of first degree home invasion robbery (of victim William Aton), and further found that he committed the robbery in concert with others. The jury, however, was unable to reach a verdict on the other counts and the arming enhancement, and the court declared a mistrial as to all other counts.
The jury was unable to reach a verdict on any of the charges against McDonald, and the court declared a mistrial as to him.
Following a bifurcated trial, the court found the prior conviction and prior prison term allegations true.
On August 30, 2006, the trial court sentenced appellant to a term of 30 years to life in state prison.
On September 1, 2006, appellant filed a notice of appeal.
FACTUAL BACKGROUND
William Aton testified that, on September 24, 2003, he lived in a house at 132 Lakewood Avenue in Vallejo. His granddaughter, Angela, and his grandson, Ricky, lived with him. That night, after 10:00 p.m., Aton was watching television when Angela ran into the house and said there were “guys in front of the house with a gun.” As Aton stood up, someone grabbed him by the shirt and flung him against a wall. The person, who was wearing all black, including a black hood, also was holding onto Angela and pulled them into the kitchen. Aton heard yelling and heard someone say, “Shoot the bitches. Shoot the bitches.” A person then grabbed him, yanked him into the dining room, and hit him with something hard on his left ear. The blow broke his hearing aid and knocked his glasses off. He was then thrown onto the ground in the living room, where he lay on his stomach. After that he only heard yelling, but not specific words. The intruders’ voices were male.
Angela’s girlfriend, Robin, was lying next to Aton, crying. He also saw Nicole (Ricky’s girlfriend) lying on the floor next to Robin. Both girls were screaming. One person was sitting on Aton’s back and he could see another person down the hall who was dressed all in black and was holding a gun. At some point, someone reached into Aton’s pockets and took his wallet, money clip, and car keys. He had six hundred dollar bills folded in a particular way in his wallet.
Later, Robin got up and, when Aton tried to pull her back down, she said, “ ‘They’re gone gramps.’ ” After the intruders left, the police came. Aton went to the hospital where he was told he had a concussion and was given five or six stitches in his ear for the cut caused by the broken hearing aid.
A couple of days later, a police officer showed Aton some hundred dollar bills that were folded in a similar way to how he folded his money. A few days later, a police officer called and told him there was marijuana in his backyard, which Aton had not known about. About a month or more later, a neighbor who lived four or five houses down the street returned Aton’s wallet, saying he had found it in his backyard.
Angela Aton, who was 20 years old at the time of trial, testified that she had arrived home on the night of September 24, 2003 with her friend Robin. As they approached the front door, a side door from the garage opened and a person came out who had a mask on his face and was wearing dark clothing. He said, “Get in the fucking house,” and pointed a gun at Angela and Robin. Angela went into the house, closed the door, and locked it. She ran down the hall and told her grandfather that there was someone outside with a gun. She then ran to the phone, called 911, and set the phone down. She heard someone kicking the door in, yelling, “Open the fucking door; I’m going to shoot your friend.”
Angela then heard the front door fly open, and the man who had confronted her outside ran into the kitchen, grabbed her by the hood of her coat, put the gun to her, and pulled her back into the living room, where she saw another man. He was wearing gray clothes and she could not see his face. When this second man grabbed her grandfather and started hitting him with a gun, the first man let go of Angela and she ran out the back door of the house. She then jumped over fences to the left of her backyard and went to a neighbor’s house two doors down. She knocked on the door; the neighbor let her in and called the police. While at the neighbor’s house, she saw two people running down the street from the direction of her house.
Later that evening, the police took Angela down the street from her house where she identified one of the robbers—the second one who had grabbed her grandfather—based on his clothes as well as his build. At trial, she identified appellant as the person she had previously identified as one of the robbers. She was then taken to another location where she identified the other robber by his clothing and build as the man who had hit her grandfather. At trial, she identified codefendant McDonald as this other robber.
Angela acknowledged that marijuana found in a backpack under a deck in the backyard of her home belonged to her and her brother. She had sold marijuana on prior occasions, but not out of her home. She had admitted that morning for the first time that the marijuana was hers, even though both police and her grandfather had previously asked her about it.
Robin Faoro, Angela’s friend, testified that, once they were in the house, the man who had kicked in the door told her to “[g]et down.” She went down on her knees between the couch and the coffee table. Two people she had seen coming toward the house then came in the front door. After two of the men got Aton, Angela’s grandfather, onto the floor, the first man who had kicked in the door told Robin to get over next to Aton. One of the men later dragged Nicole Mimiaga out to where they were lying on the floor. As Robin lay on the floor, one of the men was behind her and she felt a gun against her back.
Angela’s brother, Ricky Aton, then walked in the front door and immediately ran back out. Someone chased him, but then came back and said, “Shoot the girls now. Shoot them for him running.” Robin thought she was going to die. Someone also said, “If you call the police, we have your licenses; we have your ID’s; we know where you live. We’re going to come back and kill you.” At some point two other people came into the house, who turned out to be Ricky’s friends; she did not see what happened to them. She then heard the sound of sirens and one of the men said, “Let’s go,” and all three intruders left the house.
Nicole Mimiaga testified that she was Ricky Aton’s girlfriend. On the night of September 24, 2003, she was lying on the bed in Ricky’s room while he was at the store getting her something to drink. She heard yelling, so she got up and opened the bedroom door. A man said, “Oh, so you’re here too?” and then grabbed her and started pushing her down into a chair. Another man with a handgun then came and held her down while the first man looked through Ricky’s room. They asked her, “Where’s it at?” But she did not know what they meant. They took $600 off of a table in Ricky’s room, which were his earnings for painting jobs with his uncle.
The men then dragged Nicole into the living room and threw her down next to Robin and Aton. Nicole was screaming and holding onto Robin because she was scared. There was a man guarding them and he said, “Let’s shoot the girls first.” At some point, she heard sirens and one of the men said that if any of them got up, they would come back and shoot them all. The three men then left.
Jason Jackson, who had known Ricky for many years through baseball, testified that he and his friend, Ryan Stanwood, went to Ricky’s house after 10:00 p.m. on the night of September 24, 2003. As they walked in the open front door, Jackson saw Ricky’s grandfather, Aton, lying on the ground. Three people immediately surrounded Jackson and Stanwood. The man with the mask on said to “[g]et on the ground before I shoot.” When Jackson did not get onto the ground, the man asked him if he thought it was a game, and then struck him on the side of the head with a pistol. Jackson then sat down in a chair. One of the men punched Stanwood on the top of his head, and he went down face-down on the ground.
Jackson saw Robin on the ground and saw one intruder dragging Nicole over by Robin. Two of the intruders had masks on; one did not. He did not see the person without the mask in court. The man without the mask went through his and Stanwood’s pockets. At one point, Ricky came home, then immediately ran away. One of the men said they should leave because the police would be coming soon. They went through other rooms and then left.
Ryan Stanwood, also a friend of Ricky’s, testified similarly to the testimony of Jason Jackson. He also testified that one of the robber’s took his cell phone, $175, and a lighter out of his pockets. The next day, he went to the Vallejo Police Department and police showed him his cell phone and what appeared to be his lighter.
Ricky Aton, who was 18 years old at the time of trial, testified that at around 10:30 p.m. on the night of September 24, 2003, he went to the store to get his girlfriend, Nicole, a drink. When he returned about five minutes later, he opened the door and saw someone lying on the floor. Someone wearing a mask came out from behind the blinds and pointed a gun at him and told him to get on the ground, at which point he took off running with someone chasing him. He ran to a nearby McDonald’s restaurant, where he saw police cars driving by. He then called Nicole and walked back to the house.
The marijuana found in the backyard of the house belonged to Ricky and his sister.
Vallejo Police Officer Rudy Quesada testified that he was sent to 132 Lakewood Avenue to investigate a 911 hang-up call. Just as he stopped his car, he saw two men walking from the front of 132 Lakewood. When they saw him, they ran east on Lakewood. One man wore a plaid shirt; the other wore a gray pullover or hooded sweatshirt. He could not see their faces. The man in the plaid shirt went over a fence into the yard of 155 Lakewood and the other ran down the driveway of 165 Lakewood, at which time Quesada lost sight of them. Other officers arrived and a perimeter was set up around the area.
Quesada interviewed witnesses at the scene, who were very upset. Officers searching around the house at 132 Lakewood found a loaded handgun on the front lawn and a mask in the street in front of the house. Both items were near to where Quesada first saw the two men.
Vallejo Police Sergeant Kenneth Weaver testified that he arrived at the scene shortly after Officer Quesada. He set up a perimeter around the area with other officers who were arriving. After looking inside the house, Weaver looked outside, where he found a handgun on the front lawn near the sidewalk and a brown Neoprene mask in the street in front of the house. Weaver also found a backpack with a large amount of marijuana inside under a deck in the backyard. Weaver took Angela Aton to a nearby location where she positively identified appellant as one of the robbers based on the clothing he was wearing.
Shortly after Vallejo Police Officer Jerome Bautista arrived on the scene, as he walked on a nearby street, he heard another officer shout, “ ‘There he is.’ ” Bautista then saw a Black male wearing a white shirt and gray sweat pants coming from the backyard area of a house on Rolling wood Drive. Bautista identified that person at trial as appellant. Appellant looked around and then started walking casually down the street. At that point, Bautista and another officer detained him. Appellant was perspiring and appeared to be out of breath. He also had yard debris on his pants.
After placing appellant in another officer’s patrol car, Bautista searched the area around the house on Rolling wood Drive where appellant was spotted. In the front yard of the house, the officer found a black hat. In the backyard of the house, he found a black puffy jacket on top of some garbage cans; the jacket was warm to the touch, as if someone had just been wearing it.
Once appellant was taken to the police station, he was searched and officers found $803 in cash in appellant’s pants pocket. Some of the $100 bills were folded in the same way William Aton had demonstrated that he folded his currency.
Fifteen to twenty minutes after the perimeter was set up, a police helicopter was dispatched to the area and, using an infrared camera, noted a heat source in a backyard on nearby Muirwood Place. Officers went to the location and found codefendant McDonald lying in some shrubs. Ryan Stanwood’s cell phone and lighter were found in McDonald’s pocket.
Two days after the robbery, officers were contacted by a couple living on Muirwood Place near Lakewood who had found a gun in some bushes in their backyard. About a week after the robbery, another neighbor on Muirwood Place found a wallet and a money clip in his side yard. The wallet contained a driver’s license in the name of William Aton.
Criminalist Melissa Wilhelm testified that she prepared samples from the hat, jacket, and mask that were found near the robbery location for DNA testing. Criminalist David Stockwell conducted DNA testing on the samples. Stockwell found three genetic profiles on the mask, one of which matched appellant’s genetic profile. The probability that a random, unrelated person was the donor of that DNA sample was approximately one in 700 quadrillion African-Americans, one in one sextillion Caucasians, and one in 4.4 sextillion Hispanics. The genetic material on the hat and jacket had degraded to where Stockwell could only obtain a partial profile from each. However, based on the presence of certain genetic markers in the sample, appellant could have been the donor.
The prosecution played for the jury a recorded telephone conversation from a call appellant made from jail. In the conversation, the other person on the call tells appellant he needed to get an “oo-aapa.” Appellant then gives him directions through William Aton’s neighborhood to a house where he can find the “oo-aapa” in the bushes.
The prosecution also introduced evidence that, in 1993, appellant, codefendant McDonald, and a third person robbed a pizza parlor in Napa together. One man wore a mask; the other two had hooded sweatshirts drawn up tight to hide their faces. They came in shortly after 11:00 p.m. and told the employees to get on the ground. One of the robbers put a gun to an employee’s head and told him to get the money out of the safe. The employee retrieved the money (including cash and checks) for them and the robbers left.
A witness provided police with a description and partial license plate number of the getaway van. An officer spotted the van and followed it. When the officer turned on his vehicle’s overhead lights and attempted to stop the van, the officer saw several things being discarded from the van, including a black jacket or sweatshirt, a white canvas bag, some gloves, and a stocking cap. Eventually, the van stopped, and the officer found four people inside, including appellant and codefendant McDonald. The parties stipulated that both appellant and McDonald were convicted of robbery based on that incident.
Codefendant McDonald testified on his own behalf that, on September 24, 2003—the night of the robbery—he walked from his sister’s house to the house of a friend who had agreed to give him a ride. His walk took him along Rollingwood, where he saw a cell phone on some grass. He picked up the phone and continued walking. He then saw some police officers. He got scared because of prior bad experiences with police officers, including many instances of harassment by Vallejo police officers, and so ran into a backyard and hid until he was found by police and arrested.
McDonald had known appellant for over 15 years and had remained friends with him. The last time he talked to appellant before his arrest was about two weeks earlier.
DISCUSSION
I. Alleged Limitation on Appellant’s Right to Cross-Examine a DNA Expert
Appellant contends the trial court improperly limited his right to cross-examine the prosecution’s DNA expert regarding the reliability of her lab’s findings.
A. Trial Court Background
During his cross-examination of criminalist Melissa Wilhelm, who had prepared the samples for DNA testing, defense counsel asked whether, as part of being an accredited lab, “do you do anything to track your rate of error, if any?” Wilhelm asked, “Could you explain what you mean by ‘tracking my rate of error’?” Counsel then asked, “Well, do you, um, do you keep—well, as part of the proficiency, at any point, do you keep a running—well, have you ever made an error in the lab, as far as you know?” The prosecutor objected on relevance grounds and the court sustained the objection.
B. Legal Analysis
Relevant evidence is defined in Evidence Code section 210 as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The trial court has broad discretion in determining the relevance of evidence. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) The trial court does not abuse its discretion when it sustains an objection to a “broadly framed” question that might get an answer that goes beyond the scope of relevant evidence related to the material issues at trial. (See People v. Cash (2002) 28 Cal.4th 703, 727.)
In the present case, defense counsel’s question to Wilhelm regarding whether she had “ever made an error in the lab” was extremely broad and went beyond not only the possibility of error in this case, but also went beyond any errors in DNA sample collection and processing to any possible lab-related error. Without anything linking the question to the DNA analysis in question, the court did not abuse its discretion in sustaining the prosecutor’s relevance objection. (See People v. Cash, supra, 28 Cal.4th at p. 727.)
In addition, appellant is incorrect when he claims the trial court, in sustaining the prosecutor’s objection, foreclosed further inquiry into Wilhelm’s error rate in DNA sample collection and processing. It was counsel who moved on to a new line of questioning at that point, raising questions about the possibility of sample contamination or collection irregularities. Defense counsel also extensively questioned criminalist David Stockwell, who performed the actual testing on the samples, regarding possible sources of error and contamination.
Indeed, the trial court overruled the prosecutor’s relevance objection to counsel’s question about how Wilhelm can determine who else, if anyone, might have access to sealed items submitted for testing.
In sum, the court’s ruling was well within its discretion and did not preclude counsel from asking additional, more specific—and therefore relevant—questions about Wilhelm’s rate of error in DNA collection and processing. Accordingly, appellant’s claim that his Sixth Amendment right to confrontation was violated cannot succeed. (See People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Greenberger (1997) 58 Cal.App.4th 298, 349-350.)
This case is thus distinguishable from Smith v. Illinois (1968) 390 U.S. 129, 130-131 and Alford v. United States (1931) 282 U.S. 687, 692, cited by appellant, in each of which the United States Supreme Court held that the trial court’s ruling amounted to a summary denial and effective emasculation of the defendant’s right to cross-examination.
II. Admission of Evidence of a Prior Robbery by Appellant and his Codefendant
Appellant contends the trial court improperly admitted evidence of a prior robbery by appellant and his codefendant to prove identity because the prior offense was not sufficiently similar to the charged offense.
A. Trial Court Background
At a pretrial hearing, the trial court addressed the prosecution’s motion to admit evidence of a prior robbery committed by appellant and codefendant McDonald in 1993 in Napa to establish identity and intent. Defense counsel opposed the motion. The trial court ultimately found the prior robbery evidence admissible to show identity, but not to show intent.
Following presentation of testimony regarding the prior robbery, the trial court instructed the jury that “that evidence, um, it has been admitted for a limited purpose. [¶] And it’s not to be considered [by] you for any other purpose other than the limited purpose for which it’s admitted. Do not consider this evidence for any purpose other than the limited purpose.
“And that purpose is: Evidence has been introduced for the purpose of showing that the defendants committed a crime other than that for which they are on trial.
“This evidence, if believed, may not be considered by you to prove that a defendant is a person of bad character, or that he has a disposition to commit crimes.
“It may be considered by you only for the limited purpose of determining if it tends to show the identity of the person who committed the crime, if any, for which the defendant is accused in this case.
“For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you would all other evidence in this case. You are not permitted to consider such evidence for any other purpose.”
B. Legal Analysis
“Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
Evidence Code section 1101 provides in relevant part: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. “(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
“The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. 403.)
The admission of other-crimes evidence to prove identity is a matter within the sound discretion of the trial court. (People v. Haston (1968) 69 Cal.2d 233, 246 (Haston).) “However, that discretion must in all cases be exercised within the context of the fundamental rule that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.” (Ibid.; see also Evid. Code, § 352.)
According to appellant, the common characteristics between the prior robbery and the present offense are not sufficiently distinctive to be admissible to prove identity in this case. We disagree.
In Haston, supra, 69 Cal.2d 233, 238, the defendant was charged with committing three robberies together with another man, McDowell, who had pleaded guilty before trial. The prosecution was permitted to introduce evidence at the defendant’s trial, at which the primary issue was identity, that the two men had committed three prior robberies together several years earlier. (Id. at pp. 238-240.)
The California Supreme Court examined the similarities that existed between the evidence related to the prior robberies and the charged offenses, including that all of the offenses were committed when the establishment in question was closed, but employees were still present; all were committed by two armed Caucasian men of middle height who wore handkerchiefs over their faces; the robbers entered each location through an employees’ entrance and during the robberies forced one or more employees to lie face down on the floor; and one of the robbers seemed concerned with holding employees at bay, while the other was involved with obtaining money from the safe. Also, in none of the robberies was an employee physically injured, though there was some jostling, pushing, or kicking. (Haston, supra, 69 Cal.2d at p. 247.) The court concluded that none of these similarities was sufficient to be admissible to prove identity, given that “each and all of the indicated marks are shared not only the charged and uncharged crimes herein involved, but also by very many armed robberies.” (Id. at p. 248.)
The court then stated, however, that there was another mark common to both the charged and uncharged offenses that had been accorded minimal significance by the parties: “the very presence of Donald McDowell as one of the perpetrators of both the charged and uncharged offenses. It is clear that McDowell’s presence, unlike the other features common to the charged and uncharged offenses, is a mark whose distinctive nature tends to differentiate those offenses from other armed robberies. There is only one Donald McDowell, and his conjunction with defendant in earlier robberies, together with his admitted participation in the robberies charged, supports the inference that defendant and not some other person was his accomplice in those charged offenses.” (Haston, supra, 69 Cal.2d at p. 249, fn. omitted.) The court then concluded that, when added to the other similarities between the two sets of robberies, the significantly distinct mark of McDowell’s presence had great probative value on the issue of identity, and the prior offense evidence was therefore admissible. (Id. at p. 250.)
Similarly, in People v. Cavanaugh (1968) 69 Cal.2d 262, 273-274 (Cavanaugh), our Supreme Court found that the several similarities between the charged and uncharged armed robberies, which would not be sufficiently distinctive on their own, were rendered extremely probative and therefore admissible by one “highly distinctive common mark, i.e., the presence of Joseph Ponte as defendant’s confederate in the commission of both the charged and uncharged offenses.”
Finally, in People v. Robinson (1995) 31 Cal.App.4th 494, 503 (Robinson), the trial court had admitted testimony, for the purpose of determining identity, that three nights before the arson with which the defendant and a codefendant were charged she saw the defendant and codefendant set fire to a parked car in front of the residence they burned three nights later. The appellate court concluded that, while there was nothing particularly distinctive about either the charged arson or the prior arson, the trial court had properly admitted the prior offense evidence “because the two arsons shared ‘a mark whose distinctive nature tends to differentiate those offenses from other’ arsons”: i.e., the presence of the codefendant on both occasions. (Ibid., quoting Haston, supra, 69 Cal.2d at p. 249.)
In the present case, both the charged offenses and the prior offense involved “take-over” robberies, in which three men wearing masks or other face coverings entered a building at night, ordered the occupants to lie on the ground at gunpoint, searched the building for money, and later discarded clothing and other items when confronted by police. Although these common characteristics alone would not be sufficiently distinctive to be admissible to prove identity, as in Haston, Cavanaugh, and Robinson, the fact of codefendant McDonald’s presence at both robberies “is a mark whose distinctive nature tends to differentiate those offenses from other armed robberies.” (Haston, supra, 69 Cal.2d at p. 249.)
That McDonald ultimately was not convicted of the present robbery does not affect our conclusion. As the Supreme Court explained in Cavanaugh, “the record contains ample affirmative evidence, in the form of eyewitness testimony, that [the codefendant] was defendant’s confederate in both the charged and uncharged offenses. The People were not required, in prosecuting defendant, to prove [the codefendant] guilty beyond a reasonable doubt; it was enough to show the fact of his participation, like any other common mark, by a preponderance of the evidence. [Citation.]” (Cavanaugh, supra, 69 Cal.2d at pp. 273-274, fn. 9.) Here too, although McDonald was acquitted of the charged offenses, we have concluded that the evidence admitted at trial sustained the prosecution’s burden for purposes of showing, by a preponderance of the evidence, that McDonald participated in the robbery.
This case is distinguishable from People v. Felix (1993) 14 Cal.App.4th 997 (Felix), upon which appellant relies. In Felix, the trial court admitted evidence that two codefendants in a robbery case had previously committed a robbery together for the purpose of establishing identity. (Id. at pp. 1002-1003.) Division Three of this District reversed the conviction, holding that the evidence should not have been admitted, explaining that “[t]he inference to be drawn, that because defendants previously knew each other they likely committed the charged crime together, was weak and remote.” (Id. at p. 1006.)
In Felix, however, unlike the present case, the prosecutor had conceded that the earlier robbery “bore no distinctive marks in common” with the charged robbery, other than the association of the two defendants. (Felix, supra, 14 Cal.App.4th. at p. 1005.) Here, there are other similar characteristics from the prior robbery that are insufficiently distinctive on their own, but, as in Haston, “the addition of [McDonald’s] presence—a significantly distinctive mark—into the combination yields a significantly different result. [¶] . . . It is clear that in this context the other-crimes evidence has great probative value on the issue of identity.” (Haston, supra, 69 Cal.2d at p. 250.)
The trial court properly admitted evidence relating to the prior robbery.
Furthermore, any alleged error in admitting the prior offense evidence would have been harmless. First, the verdicts in this case clearly demonstrate that the jury did not rely on the prior offense evidence to convict appellant. That evidence was equally applicable to codefendant McDonald, who was not convicted on any of the robbery charges in this case. Second, the evidence against appellant was extremely strong. His DNA was found on the mask discarded outside the Aton home; Angela Aton identified him in a field show-up as one of the robbers, based on his clothing and build; and, at the time of his arrest, he was in possession of money taken from William Aton. In light of this evidence, there is no reasonable likelihood that the result would have been different had the prior offense evidence been excluded. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
III. The Trial Court’s Alleged Improper Vouching for a Prosecution Witness
Appellant contends the trial court improperly vouched for the testimony of a prosecution witness.
A. Trial Court Background
During the examination of prosecution witness Jason Jackson, the court asked the witness three questions, including: “[Y]ou were 17 at the time, um, this robbery occurred?” Jackson answered in the affirmative.
B. Legal Analysis
According to appellant, the court’s question regarding prosecution witness Jason Jackson’s age at the time “this robbery occurred” improperly “vouched for the testimony of the prosecution’s witnesses by placing the power of the court behind their version of events” and “also violated appellant’s Sixth Amendment right to have a jury determine whether the prosecution had established all of the elements of the offense [i.e., robbery].” We disagree.
First, the court was merely repeating the words the witness had used, without objection, in describing what had occurred. Second, and more importantly, it was undisputed that a home invasion robbery had occurred. The only question was the identity of the robbers. In fact, defense counsel began his closing argument with the following statement: “Like I told you when we started this case, you really only have to make one decision: There’s these six counts up here, but what it really comes down to is, did the District Attorney prove that Mr. Easterling was involved in this home-invasion robbery?” Codefendant’s counsel similarly asked the jury during his closing argument to think about “what was really said by the people that did rob that house[?]”
Finally, the trial court instructed the jury: “Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you understand the answer.” The court also told the jury: “I have not intended by anything I have said or done, or by any of the questions I may have asked, or by any of the rulings I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I’ve done or said has seemed to so indicate, you will disregard it and form your own conclusion.” We presume the jury followed the court’s instructions.
This case is far different from People v. Cook (1983) 33 Cal.3d 400, 404, a case cited by appellant, in which the jurors sent a note to the trial court during deliberations informing it that they were deadlocked, but asking for the court’s opinion regarding the credibility of two witnesses. The court responded that it believed the prosecution had proven its case because it found the two witnesses in question to be credible. (Id. at pp. 404-405.) The appellate court reversed the judgment, given that the trial court had basically told the jury what verdict it should reach. (Id. at pp. 411-413.) In this case, on the other hand, the court’s use of the word “robbery” did not in any way inform the jury of the verdict the court believed it should return.
IV. The Prosecutor’s Alleged Comment on Appellant’s Constitutional Right Not to Testify
Appellant contends the prosecutor improperly commented on appellant’s constitutional right not to testify when he elicited testimony from a police officer that the police attempted to obtain a statement from appellant.
A. Trial Court Background
After appellant was arrested, he waived his Fifth Amendment right to remain silent and gave a statement to police.
During trial, Officer Wardlow testified as follows regarding what he did after concluding a field show-up with appellant:
“Q. After that was done, at some point, did you transport Mr. Easterling to somewhere?
“A. Yes, I did. I transported him to the police station.
“Q. And at the police station, what’s the purpose of transporting him there?
“A. So that he could be interviewed or spoken to, um, about the investigation.”
B. Legal Analysis
Appellant argues that Officer Wardlow’s testimony gave the jury the impression that police had tried to question appellant, but that appellant had refused to make a statement, and that this was error under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
Appellant also cites Griffin v. California (1965) 380 U.S. 609 in support of his claim. However, since his claim relates to comment on a defendant’s refusal to speak to police upon request (“Doyle error”), rather than the decision not to testify at trial, Doyle, not Griffin v. California, is the relevant case.
As a preliminary matter, respondent asserts that appellant has forfeited any claim of error by failing to make a timely objection at trial. (See People v. Huggins (2006) 38 Cal.4th 175, 198 [claim of Doyle error forfeited by failure to object].) Appellant counters that a reviewing court possesses the discretion to excuse the failure to object in the trial court if it would be a miscarriage of justice to allow the conviction to stand. (See People v. Abbaszadeh (2000) 106 Cal.App.4th 642, 648.) We conclude that appellant has not preserved this issue for appeal. In the circumstances presented here, it would not result a miscarriage of justice to allow the conviction to stand.
Indeed, we would find this claim to be completely without merit. Doyle did not preclude the prosecution from introducing evidence that appellant had been taken to the police station for questioning because appellant in fact waived his right to remain silent and gave a statement. (See Anderson v. Charles (1980) 447 U.S. 404, 408 [Doyle does not apply to questions at trial about a defendant’s post-arrest statements because “a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent”].) Defense counsel was free to clarify any possible jury misperception as to whether appellant had given a statement on cross-examination, which in fact he did (although perhaps without realizing he was doing so) when Detective Sid DeJesus explained that he was familiar with appellant’s voice because he had interviewed appellant in September 2003. Defense counsel later made it even clearer that appellant had made a statement after his arrest when, in closing argument, he stated: “Officer DeJesus says, ‘I spoke to him maybe 45 minutes [sic] when I arrested him . . . .’ ” Thus, in light of this additional testimony and argument, the jury would not have been misled by Officer Wardlow’s earlier testimony in any case.
V. Cumulative Error
Appellant contends the cumulative effect of the errors requires reversal. However, in reviewing appellant’s claims, we have found no error on the part of the trial court. Thus, his claim of cumulative error cannot succeed.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.