Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Super. Ct. No. FSB-902282 of San Bernardino County, Raymond L. Haight, III, Judge.
O'ROURKE, J.
A jury convicted Dairian Jackson of second degree robbery (Pen. Code, § 211) and found true allegations that a principal was armed (§ 12022.53, subds. (b), (e)(1)), and that property valued at more than $150,000 was damaged. (§ 12022.6, subd. (a)(2).) The court found true allegations that Jackson suffered a prior conviction for a serious felony (§§ 667, subds. (b)-(i); 1170.12, subds. (a), (d)), and was previously convicted of receiving stolen property (§ 496) and being a felon in possession of a firearm (§ 12021). It sentenced Jackson to a 20-year prison term consisting of 10 years for the robbery conviction, a one-year consecutive enhancement for the firearm use, a two-year consecutive excess property damage enhancement, two consecutive years for the prior prison terms under section 667.5, subdivision (b), and five years under section 667, subdivision (a)(1).
All statutory references are to the Penal Code unless otherwise indicated.
Jackson contends: (1) the prosecutor and judge improperly vouched for witnesses; (2) there is insufficient evidence to corroborate his accomplices' testimony; (3) the court deprived him of due process and his right to a jury trial by rejecting his request for a jury instruction on the lesser included offense of theft; and (4) the court imposed an unauthorized court security fee. We affirm with directions to correct errors in the sentencing minute order and abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2009, between 3:30 and 4:00 p.m., two men entered Redlands Jewelers asking to look at engagement rings and were assisted by the owner, David Ahlers, and Ahlers's employee Nicole Faber. Suddenly one of the men, identified at trial as Jackson's codefendant Muhammad Nassar, leapt over the counter and jumped on Ahlers. The other man took a gun out of his bag, pointed it at Faber's face, and instructed her to lie down. After Faber followed his instruction, she thought about her child and felt she was going to die. She begged the man to please not hurt her. He then had her assist him in opening the jewelry cases and both men grabbed jewelry and placed it into a bag. The men tied Faber's and Ahlers's arms and ankles and left the store. As the men left, Ahlers freed himself and called police. He ran to the back alley and gave police the license plate number of the vehicle the men entered, telling police there were four people in the car: two women in the driver's and front passenger seat and the two assailants in the back seat.
Christina Amarante was the driver of the vehicle that Ahlers saw the men enter after the robbery. Earlier that afternoon, Amarante was with her friend Bonnie Brandon in Brandon's apartment along with Jackson (who Amarante knew as "TA" or "Money"), Nassar, Travon Hassan, Marquis Wilson, and Damon Searcy, known as "D." Amarante was walking in and out of the apartment to smoke and heard the men having a dispute. She heard Jackson say, "It will be cool. It will be cool. It will be cool, " and something to the effect of them "being in and out of there in like a certain amount of time, under like a minute or something like that." Brandon heard the men talking about robbing a jewelry store, but she did not believe they were serious. She heard Jackson say he had done such a robbery before and knew where to sell the jewelry.
Amarante, who was in custody when she testified, pleaded guilty to robbery and was required to truthfully testify against the others at trial, serve 365 days in county jail, agree to three years of felony probation, and participate in a drug rehabilitation program. Other accomplices took pleas: Bonnie Brandon pleaded guilty to robbery with a strike and agreed to provide truthful testimony, serve 210 days in jail, and three years felony probation. Marquis Wilson and Travon Dante Hassan pleaded no contest in exchange for three-year prison terms. Damon Searcy, who used the gun during the robbery, pleaded guilty to robbery and admitted a personal gun use allegation in exchange for a 15-year prison term. The prosecutor offered Jackson and codefendant Nassar a package plea deal, which Nassar wanted to accept, but Jackson did not.
Brandon testified that the individuals present in her apartment on May 30 included Jackson's two brothers in addition to Jackson, Amarente, Wilson (also known as "Rock"), Nassar, Hassan (also known as "TP"), and Searcy. Wilson and Nassar also testified that Jackson's brothers "Shawn and Mac" were present that day in the apartment. Wilson testified that Jackson—"Money"—was the person giving the orders that day.
At some point, Jackson asked Amarante if she would give Nassar and Searcy a ride to Redlands in exchange for putting gas in her car. She agreed and drove with Brandon in the front seat and the men in the back. Nassar and Searcy were uncharacteristically dressed in nice clothing and Searcy carried a bag with a strap. Brandon instructed Amarante to park in an alleyway in a downtown area, and Nassar and Searcy left the car together. They were gone about six or seven minutes, long enough for Amarante to smoke a cigarette.
When the men returned, Searcy ordered Amarante to drive away. After driving a few blocks, she was told to stop behind a green Ford Focus. Jackson stepped out of the passenger side of the Focus to open the door. Searcy and Nassar exited her car and entered the Focus, which drove away. Brandon later testified that the Focus was Searcy's. Wilson later testified that after the robbery he drove the Focus to Redlands and Searcy drove it to Los Angeles.
At about 5:45 p.m., Jackson and Nassar arrived at a jewelry mart in downtown Los Angeles and met with Stepan Hakopian, who had a jewelry repair shop there and had known Jackson for about four or five years. Jackson handed Hakopian a bag containing a large number of rings, some with tags on them, and asked him to appraise them. Hakopian found the tags odd, and told Jackson he would take the rings home that evening and that he should return in the morning. Jackson returned the next morning and took the bag of rings. Jackson gave Hakopian one of the rings but later took it back.
Redlands Police Department Detective Robert Williams later interviewed Hakopian, who told him he thought the rings could have been stolen. Detective Williams also participated in a search of Brandon's apartment. Searcy, Hassan, Nassar and Wilson were in the apartment at the time of the search. Police found one of Ahlers's stolen store rings in Searcy's pocket, still containing its tag. They found three rings in Wilson's pocket and three rings in Hassan's wallet. Those rings did not have tags. Police also recovered rings hidden in Searcy's Focus. Police were able to match all of the rings with tags to those stolen from Ahlers's store. Police also found a chrome revolver in Brandon's apartment with a round of live ammunition in the cylinder. They found a red camouflage bandana, various high-capacity magazines for firearms, a pellet gun, and various types of loose ammunition in Nassar's vehicle.
In Nassar's defense, Wilson testified that he told police officers after his arrest that he was fearful for Nassar's safety because Jackson had threatened to kill him and his parents if Nassar did not participate in the robbery. A police detective confirmed that in an interview taken the day after the robbery, Wilson had told him he was fearful for Nassar's safety and concerned about Nassar's involvement in the robbery. Nassar testified that Jackson impliedly threatened him and his parents to get his participation in the robbery.
DISCUSSION
I. Claim of Improper Vouching
Jackson contends the prosecutor improperly "vouched" for the witnesses by reminding the jurors in closing arguments of the portions of Amarante's and Brandon's plea bargains requiring them to testify truthfully and—in Amarante's case—that the judge would determine whether she was telling the truth. Recognizing his counsel did not object to admission of these plea agreements, Jackson asks us to exercise our discretion to consider the merits of his claim, or find an objection and admonition would not have cured the harm once the jury heard these details. He also asks us to review the claim under the rubric of a claim of ineffective assistance of counsel. Jackson frames these arguments in terms of prosecutorial misconduct, and he also argues the court abused its discretion by admitting evidence of the accomplices' plea agreements.
The prosecutor argued the evidence was overwhelming that Jackson was involved in the robbery and then stated: "So—but what did he have more than maybe a co-defendant saying this because by in [sic] large they're co-defendants, Ms. Amarante who testified under a deal, Ms. Brandon who testified under a deal and mind you the deal includes a testimony, testify truthfully. And if the judge thinks they lied, he can slam—he can throw away their deal and give them prison up to the maximum, which I think is five years for just a robbery. [¶] Okay. That's a caution or a kind of a safety net to try and ensures what they're doing is testifying truthfully because they know that if they don't, they have severe consequences."
To the extent Jackson advances a claim of prosecutorial misconduct, we conclude he has forfeited such a claim by failing to contemporaneously object and seek a jury admonition. (People v. Bonilla (2007) 41 Cal.4th 313, 336 (Bonilla).) Jackson does not articulate a theory as to why—when the plea agreements were first mentioned by the prosecutor—an objection or request for admonition would have been futile other than to say they would have, ipse dixit. Jackson made no objections whateverto the instances of misconduct he alleges. We decline to apply the futility exception when Jackson has pointed to nothing in the record suggesting that an objection to the alleged misconduct would have been futile, or that the prosecutor's comments were so outrageous or inherently prejudicial that an admonition would not have cured the prejudice. (See People v. Boyette (2002) 29 Cal.4th 381, 432; People v. Dennis (1998) 17 Cal.4th 468, 521; People v. Fauber (1992) 2 Cal.4th 792, 821 (Fauber).)
We would reject the claim on the merits as well, on the grounds stated in Bonilla, supra, 41 Cal.4th at pp. 336-337, in which the California Supreme Court rejected a similar claim of improper vouching. The court in Bonilla stated: "It is misconduct for prosecutors to bolster their case 'by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.' [Citation.] Similarly, it is misconduct 'to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness.' [Citation.] The vice of such remarks is that they 'may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government's view of the evidence.' [Citation.] However, these limits do not preclude all comment regarding a witness's credibility. ' " '[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.' " ' [Citation.] '[S]o long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, " her comments cannot be characterized as improper vouching.' "
The Bonilla court held the prosecutor's challenged remarks concerning an accomplice's plea agreement to testify truthfully "all f[e]ll within this wide latitude." (Bonilla, supra, 41 Cal.4th at p. 337.) It held it was permissible for the prosecutor to read the contents of the accomplice's plea agreement during each opening argument:
" ' "[W]hen an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility." ' " (Ibid.) It was also not misconduct for the prosecutor to argue in closing arguments that (1) the accomplice should be believed because he had an incentive to tell the truth under the terms of his plea agreement; (2) the accomplice should be believed because, despite extensive cross-examination, his preliminary hearing and trial testimony were consistent; and (2) the accomplice should be believed because other evidence in the record corroborated his testimony. (Ibid.) According to the court, all of these arguments were permissibly based on the evidence, "suggesting reasonable inferences the jury could draw that might lead it to credit [the accomplice's] testimony. They did not suggest the prosecutor had personal knowledge of facts outside the record showing [the accomplice] was telling the truth. Nothing in the challenged remarks invited the jury to abdicate its responsibility to independently evaluate for itself whether [the accomplice] should be believed." (Ibid; see also People v. Williams (1997) 16 Cal.4th 153, 256-257.)
We reach the same conclusion here, where the prosecutor told the jury that the plea agreement was a "safety net" to ensure the accomplices were testifying truthfully or suffer severe consequences. Jackson seeks to distinguish the situation here by pointing out the prosecutor advised the jury that the judge would impose a maximum five-year prison term if it decided they were untruthful. But to the extent the prosecutor's statement "arguably carried some slight potential for jury confusion" (Fauber, supra, 2 Cal.4th at p. 823), we conclude there was no possibility Jackson was prejudiced by virtue of the fact the court instructed the jury—similar to the court in Fauber—that "[y]ou alone, must judge the credibility or believability of the witnesses." We presume in the absence of any contrary indication in the record, that the jury understood and followed this instruction. (Fauber, at p. 823.) Jackson's claims provide no basis for reversal.
II. Sufficiency of Corroborating Evidence of Accomplice Testimony
Jackson contends his robbery conviction must be reversed for insufficient evidence corroborating the testimony of accomplices Amarante, Brandon and Wilson as required by section 1111. He points out no independent witness corroborated their testimony that Jackson was in Brandon's apartment on May 30, 2009, planned the robbery, instructed Searcy to take a gun, or fled in the green Focus; nor was there forensic or scientific evidence connecting Jackson to the robbery itself, as opposed to receiving stolen property.
Section 1111 provides in part: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof...."
The People respond that Ahlers, Faber and particularly Hakopian, who testified Jackson brought him a bag full of rings on the day of the robbery, provided sufficient corroborating evidence to connect Jackson to the crime; that Jackson's possession of some of the stolen property so soon after the robbery is enough to satisfy section 1111. We agree.
"Evidence that sufficiently corroborates an accomplice's testimony ' " 'must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime[, ] but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.' [Citation.]" [Citation.]' [Citation.] The evidence necessary to corroborate accomplice testimony need only be slight, such that it would be entitled to little consideration standing alone. [Citation.] It is enough that the corroborative evidence tends to connect defendant with the crime in a way that may reasonably satisfy a jury that the accomplice is telling the truth. [Citation.] Corroborative evidence may be entirely circumstantial." (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1303 (Narvaez).)
In Narvaez, this court considered the corroboration requirement contained in section 1111, holding in a robbery case that an accomplice's testimony that the defendant had served as the getaway driver was sufficiently corroborated by evidence that the defendant was days later in possession of the recently stolen property: "It is established that '[t]he possession of recently stolen property is sufficient to support corroboration for an accomplice's testimony.' " (Narvaez, supra, 104 Cal.App.4th at p. 1304.) This court observed that, "In photographs taken the day after the robbery, Lopez, [the defendant's] girlfriend, was wearing one of Kamil's stolen bracelets. When [the defendant] and Lopez were arrested a week later, she had three pieces of Kamil's stolen jewelry in her possession. When Flores was arrested on April 30, he was wearing jewelry stolen during the robbery." (Id. at p. 1303.) We concluded there was "no legal reason why the evidence is insufficient to corroborate [the accomplice's] testimony." (Id. at p. 1304; see also People v. Jenkins (1973) 34 Cal.App.3d 893, 896, 899-900 [fact that recently stolen items were in the defendant's truck, and the defendant's comment when caught that he had nothing to worry about since he was not driving, was sufficient to give rise to an inference he knew the items were stolen and sufficient to corroborate testimony of accomplice that he, another person, and the defendant went to the scene of the robbery and committed the robbery].) These authorities persuade us that ample evidence corroborates the accomplice testimony in this case.
III. Failure to Instruct on Lesser Included Offense of Grand Theft
Jackson contends the trial court deprived him of due process and his right to a jury trial by rejecting his request for a jury instruction on grand theft as a lesser included offense to robbery. He argues the court had the duty to give the instruction because it was supported by evidence that he was not present in the jewelry store and did not play a role in the actual perpetration of the robbery, Searcy brandished the gun and generated force and fear, nobody knew Searcy had a gun, and Nassar believed it would be a quick "smash and grab" theft. Jackson maintains a rational jury could conclude his offense was no greater than theft because there was evidence he only intended a theft, not a robbery with the accompanied force and fear.
It is settled that the crime of grand theft is a lesser included offense of robbery, which includes the added element of force or fear. (People v. DePriest (2007) 42 Cal.4th 1, 50.) Instructions on the lesser included offense are required "when the evidence raises a question as to whether all the elements of the charged offense were present, but not when there is no evidence that the offense committed was less than that charged." (People v. Cruz (2008) 44 Cal.4th 636, 664.) Evidence that the defendant is guilty of only the lesser crime is substantial enough to merit consideration by the jury when reasonable jurors could conclude the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) But the " 'existence of "any evidence, no matter how weak, " will not justify instructions on a lesser included offense....' [Citation.] Such instructions are required only where there is 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense." (People v. DePriest, at p. 50; see also People v. Burns (2009) 172 Cal.App.4th 1251, 1256.)
Here, we agree with the trial court that the evidence—in which Searcy pointed a gun to Faber's face just before ordering her to open the store cases and Faber testified she felt she was going to die—did not warrant a grand theft instruction. Jackson's argument as to his intent about the nature of the crime that Nassar and Searcy were to commit is misplaced. His argument goes to the sufficiency of evidence of Jackson's status as an aider and abettor, a question on which the jury was instructed and necessarily resolved against Jackson by its robbery verdict. If the jury reasonably accepted the evidence that Jackson did not intend that Searcy or Nassar use force or fear, it would have acquitted Jackson of the robbery count. We perceive no error. There was no substantial evidence that Searcy and Nasser committed only grand theft and not robbery.
IV. Fees
Jackson contends the court imposed an unauthorized $60 court security fee under section 1465.8, subdivision (a)(1). The People respond that the $60 fee—as evidenced by the probation officer's recommendation—constituted a combination of the court security fee and a "criminal conviction fee" under Government Code section 70373. Jackson concedes that the probation officer's report made this recommendation, but points out that the court erroneously characterized the $60 fee during sentencing as a court security fee. He asks that the abstract of judgment be corrected to reflect a $30 section 1465.8 fee and a $30 Government Code section 70373 fee.
The probation officer recommended a "CSC fee" of $60, consisting of a $30 section 1465.8 court security fee and a $30 Government Code section 70373 court facilities assessment. However, both the sentencing minute order and abstract of judgment in this case merely state that "[a]n additional assessment of $60.00 is imposed per count."
We have the inherent power to correct clerical errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187.) We direct the trial court to replace the references to an "additional assessment of $60" with the correct fee amounts and supporting statutes.
DISPOSITION
The superior court clerk is directed to correct the sentencing minute order and amend the abstract of judgment to (1) replace the references to "An Additional Assessment of $60..." with imposition of a $30 Penal Code section 1465.8 court security fee and imposition of a $30 Government Code section 70373 court facilities assessment. The court clerk is then directed to forward certified copies of the corrected minute order and amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.McDONALD, J.