Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City & County Super. Ct. No. 197024
Margulies, J.
After a jury trial, defendant was convicted of multiple offenses arising from the robbery and false imprisonment of four persons in their residence and the carjacking and kidnapping of one of the victims. Defendant submits that his convictions must be reversed because (1) the trial court erroneously admitted evidence of an unreliable pretrial voice identification by one of the victims, and (2) juror misconduct during deliberations violated his Sixth Amendment right to a fair trial. We find no merit in defendant’s contentions, and affirm the judgment.
I. BACKGROUND
Defendant was convicted by a jury of one count of residential burglary (Pen. Code, § 459), four counts of residential robbery (§ 212.5, subd. (a)), four counts of false imprisonment (§ 236), one count of kidnapping for robbery (§ 209, subd. (b)(1)), one count of carjacking (§ 215), and one count of grand theft (§ 487, subd. (a)). The jury also found true the following enhancement allegations: (1) as to the robbery charges, that the victim was confined during the commission of the offense (§ 1170.84); (2) as to all counts, that defendant personally used a firearm (§§ 12022.5, subd. (a)(1); 12022.53, subd. (b)); and (3) as to the residential burglary, that a person was in the residence at the time of the crime (§ 667.5, subd. (c)(21)).
All further statutory references are to the Penal Code unless otherwise indicated.
A. Trial Evidence
1. Wen Yi Shih
About 2:00 a.m. on June 21, 2005, Wen Yi Shih was asleep in a house she rented with three cotenants on Amethyst Way in San Francisco. She was awakened by a noise in her room and realized that the sliding glass door opening onto her balcony was open. A split second later she saw a shadow moving in the room, and a masked man jumped on top of her. The man put a gloved hand on her mouth and pointed a gun at her left cheek. He whispered, “Shut up, shut up, or I’ll shoot. I’m not going to hurt you.” The man said he was going to take Shih to an ATM to get her money. When Shih said she did not have any money, he replied, “I know you don’t have money. None of you have any money. You’re students.”
The man allowed Shih to get partially dressed, ordered her to remove the shoelaces from a pair of shoes, and used the laces to tie her up. He asked Shih the name of the woman in the adjoining room—Jessie Gellman—and she told him. The man sat Shih up on her bed and put a comforter over her head. He went into the bathroom and turned on the light, then came back and asked Shih who was in the front bedroom. She told him it was “Margo’s room.” The man asked, “Who is the guy? . . . Is that the boyfriend, the tall white guy?” Shih said, “Yes.”
From her room, Shih heard voices from the front of the house and heard the occupant of the front bedroom, Margot Perez-Sullivan, knock on Gellman’s door and enter. She heard Perez-Sullivan tying Jessie up. Minutes later the man came back to Shih’s room with Gellman and Perez-Sullivan. Although she was partially covered with the blanket, Shih noticed that the man was wearing dark pants and black boots.
The man instructed Perez-Sullivan to get Shih’s cell phone, which was in the bathroom. He also told Perez-Sullivan to get Shih’s ATM card and personal identification number (PIN). Shih told Perez-Sullivan her PIN and Perez-Sullivan found Shih’s ATM card in her purse.
2. Margot Perez-Sullivan
Perez-Sullivan and her boyfriend, Nathaniel Morse, went to bed shortly after midnight on June 21, 2005. They woke up when a masked gunman came into their room and said, “Margo, I will kill you if you don’t do what I say.” Perez-Sullivan was startled that the man knew her name. He quickly said something like, “Camara told me you lived here, Camara told me about you guys.” The man asked Nathaniel his name. Nathaniel replied, “Nathaniel.” After that, the man referred to him as “Nat.”
Perez-Sullivan realized the man was defendant. When Perez-Sullivan moved into the house in August 2004, defendant was living two houses away with a woman named Camara. Defendant and Camara attended a barbecue Perez-Sullivan hosted shortly after she moved into the house. At the barbecue, Perez-Sullivan introduced Nathaniel to defendant as “Nat.” Over the next few months, Perez-Sullivan saw defendant many times. He had come to her house to repair one of her chairs and a door in the master bedroom. Defendant often spoke to Perez-Sullivan as she came and went from her house, and she could tell from the way he acted and looked at her that he was sexually attracted to her. Perez-Sullivan believed defendant moved out of Camara’s house in late 2004.
Defendant allowed Perez-Sullivan and Morse to get dressed and ordered Perez-Sullivan to tie Morse up with shoelaces. He ordered Perez-Sullivan to get Morse’s wallet, ATM card, and PIN, and she complied. Defendant mentioned the third bedroom in the house and asked Perez-Sullivan, “[O]h, someone is in that room now?” Perez-Sullivan remembered that the third bedroom had been unoccupied when defendant came to the house in late 2004. Perez-Sullivan told him the bedroom was now occupied by Gellman. Defendant walked Perez-Sullivan down to Gellman’s room. He threatened to pistol-whip Gellman if she screamed. All three walked back to Perez-Sullivan’s room so Perez-Sullivan could look for shoelaces to tie up Gellman. Gellman asked defendant why he was robbing them. Defendant told her to be quiet, but Gellman continued to question him. Believing Gellman was jeopardizing everyone’s safety, Morse told her to “shut the fuck up.” Defendant yelled back at Morse, “[N]o, you shut the fuck up. You have to respect the lady.”
Perez-Sullivan found the shoelaces, tied Gellman up, and collected her phone and ATM card. At one point, defendant laughed at something, and Perez-Sullivan recognized the laugh as defendant’s. Defendant led Perez-Sullivan back to her bedroom to “check on the car situation.” All three residents’ cars were parked on the street and were visible from the bedroom window. Defendant suggested taking Gellman’s or Shih’s cars, but Perez-Sullivan said she could not drive either of them because they had manual transmissions. Defendant seemed annoyed and Perez-Sullivan heard him make a very distinctive sound, “kind of like sucking his teeth,” that she had heard him make in the past. Defendant said they would take Perez-Sullivan’s car, commenting that it was not in the garage. Perez-Sullivan realized that defendant recognized her car, which she used to keep in the garage on a regular basis.
Defendant told Perez-Sullivan to say goodbye to her boyfriend. She was “really scared.” She kissed Morse, and then went downstairs with defendant. As she walked down the stairs, she dropped her car key. Defendant said, “Damn girl,” an expression Perez-Sullivan had heard defendant use many times in the past. When they reached the front hallway, defendant asked Perez-Sullivan if she “still had th[e] long black coat” because he wanted to cover himself. Perez-Sullivan did have a long black coat in the closet that she had owned during the time defendant lived nearby. He had been present once when Perez-Sullivan showed the coat to Camara, and liked the coat. Perez-Sullivan reached into the closet and gave defendant a different coat, which he put over his head.
Defendant sat in the back seat of the car and directed Perez-Sullivan to the Diamond Heights Safeway. She withdrew $1,700 from the drive-through ATM in the parking lot ($200 from her account and $500 from each of the others’ accounts, all in $20 bills). Defendant told Perez-Sullivan to drive to McAteer High School (McAteer). He cautioned her to enter the McAteer driveway slowly so she would not “bottom out” on its steep slope. Perez-Sullivan remembered defendant once saying he had attended McAteer High School. As she drove into the school parking lot, defendant said she was “too beautiful to hurt,” and that her boyfriend was a “lucky guy.” He made no attempt to whisper as he had in the house and she recognized his voice as defendant’s. When he got out of the car, Perez-Sullivan almost said, “Bye, Albert,” but she caught herself because she feared he would hurt her if he realized she knew who he was.
McAteer is now the San Francisco School of the Arts.
Perez-Sullivan drove out of the parking lot and called 911. A recording of the call was played for the jury. The operator asked Perez-Sullivan if she knew the robber. Perez-Sullivan referred to him as “our neighbor Camara’s ex-boyfriend” and stated that she believed his first name was “Albert.” As the operator continued to ask questions, Perez-Sullivan repeated emphatically that she was sure defendant was the robber.
3. Nathaniel Morse and Jessie Gellman
Morse’s and Gellman’s testimony about the robbery was substantially similar to that of the other victims. The day after the robbery, Morse was interviewed at the police station. A police officer played a recording of an interview he had conducted earlier that day. Before playing the recording, the officer told Morse to let him know if any voice on it sounded familiar. Morse did not feel under any obligation to make an identification. Morse was absolutely sure that one of the voices on the tape sounded exactly like the man who had robbed him, and he so informed the officer. Morse made his living as a disc jockey and music producer, and he had extensive experience listening to recorded voices to assure proper sound quality.
4. Other Evidence
Police officers searched defendant’s home the night after the robbery. They found a pair of black gloves, a pair of black boots, a dark Halloween monster mask, and defendant’s wallet, which contained nine $20 bills and three $1 bills. At trial, Shih, Perez-Sullivan, and Gellman all testified that the boots were similar if not identical to those worn by the robber. All of the victims testified that the gloves looked and felt like those used by the robber. Perez-Sullivan believed that the Halloween mask, if turned inside out, could have been the mask worn by the robber.
The police also found a woman’s dress purchased on June 21, 2005, for $300.62. The clerk who sold the dress picked defendant as the purchaser out of a six-person photo lineup. She testified that he had paid for the dress with fifteen $20 bills. Police searched defendant’s car and found empty boxes and receipts for more than $1,000 for automobile stereo equipment and a car alarm, all purchased that day. A clerk from the stereo store where the items were purchased identified defendant from a photo lineup as the purchaser of the equipment. Another clerk testified that the buyer had paid for the equipment with $20 bills. Payroll slips in defendant’s apartment showed that his monthly income was approximately $2,000.
Defendant’s former girlfriend, Julian Bagley-Jory, who had dated him from October 2004 until his arrest, testified that he called her on June 21, 2005 and told her that he had “extra money” to buy her a dress she had been wanting. When she met him at his house, he showed her the new sound system he had just had installed in his car. He then drove her to a shopping mall and bought the dress for her. When Bagley-Jory asked him how he could afford the system, he told her he had “robbed somebody.” He said he waited in someone’s backyard for them to fall asleep and held them up at gunpoint. He told her it was his ex-girlfriend’s neighbor. When defendant was arrested and being taken away by police, he told Bagley-Jory, “I will see you in a few years.”
5. Sentencing and Appeal
The trial court sentenced defendant to life imprisonment for the kidnapping conviction to be served consecutively to an aggravated term of six years for robbery, enhanced by an additional 10 years for the personal use of a firearm. A concurrent sentence was imposed for two robberies and the court stayed sentence as to the remaining counts pursuant to section 654. Defendant timely appealed.
II. DISCUSSION
Defendant contends that his conviction must be reversed because (1) the voice identification admitted at trial was unreliable, and (2) juror misconduct during deliberations violated his Sixth Amendment right to a fair trial.
A. Voice Identification
Defendant argues that Morse’s identification of his voice in a recorded interview by police was (1) the product of an unduly suggestive identification procedure, (2) unreliable based on the totality of the circumstances, and (3) prejudicial under Chapman v. California (1967) 386 U.S. 18 (Chapman).
1. Facts
The following evidence was presented at a hearing on the admissibility of Morse’s voice identification conducted by the court pursuant to Evidence Code section 402: Inspector Jason Cherniss interviewed defendant on June 22, 2005. He interviewed Morse later that day. Cherniss asked Morse if he would be willing to listen to a recorded interview to see if he recognized a voice on it. Cherniss told Morse that the tape would be of a person who may or may not have been involved in the robbery and that he was not obligated to identify anyone just because the tape was played for him. Cherniss played a portion of his taped interview with defendant that Cherniss considered “benign in nature.” It took place before he gave defendant a Miranda warning and before he began asking defendant about the robbery. The portion played concerned a misunderstanding between defendant and Cherniss that occurred during Cherniss’s first contact with defendant when he was taken into custody and included a brief reference to defendant’s former “girlfriend” on Amethyst Street. Cherniss told Morse to listen to the voice answering the officer’s questions. Without prompting, Morse immediately identified the interviewee as the robber. He was “absolutely” certain of his identification.
Miranda v. Arizona (1966) 384 U.S. 436.
Morse’s testimony was consistent with Cherniss’s. Morse had discussed the incident with his girlfriend, Perez-Sullivan. He knew that she believed defendant was the robber, and he knew that someone had been arrested for the crime. He realized the interviewee might have been the person the police had arrested as the robber. He nevertheless did not feel any obligation to make an identification. After listening to the tape for about 15 seconds, Morse was “absolutely sure” that the interviewee was the robber. He stated that the robber had spoken many times, using a “projected whisper,” during the half hour he had been inside the house. Morse worked as a disc jockey and produced music for a living, so he “work[ed] with sound all the time.”
The trial court found that the identification procedure was not unduly suggestive.
2. Analysis
Whether an extrajudicial identification admitted at trial is so unreliable as to violate a defendant’s right to due process of law depends on whether the identification procedure was unduly suggestive and unnecessary. If so, the court must determine whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the witness’s opportunity to hear the voice during the crime, his degree of attention, the accuracy of his prior description of the voice, the witness’s level of certainty about the identification, and the time between the crime and the identification. (See Manson v. Braithwaite (1977) 432 U.S. 98, 104–114; People v. Clark (1992) 3 Cal.4th 41, 135–137 (Clark).)
In Clark, the California Supreme Court approved a pretrial, single-voice identification procedure under the totality of the circumstances test. The defendant in Clark was accused of a series of killings of young women in 1980. (Clark, supra, 3 Cal.4th at p. 70.) The prosecutor introduced evidence that the defendant had made two incriminating phone calls to a witness in June and July of 1980. (Id. at pp. 73–74.) A police detective met with the witness in August 1980, and played two portions of a tape for her, after explaining to her that she was not obligated to identify any voice on the tape. (Id. at p. 135.) She positively identified the voice on the tape as that of the person who had placed the incriminating calls to her. (Ibid.) The defendant in Clark claimed that the voice identification was obtained by inherently suggestive procedures in that, among other things, the first portion of the recording contained only the defendant’s voice and the police had suggested to the witness that the voice she would hear was that of a suspect. (Id. at pp. 135–136.)
The Supreme Court found that it was a “close question” whether the procedure was unduly suggestive. (Clark, supra, 3 Cal.4th at p. 136.) But even assuming it was, the court found that the identification was nevertheless reliable under the totality of the circumstances. (Ibid.) The court emphasized that the witness had “a good opportunity to hear the caller’s voice” during the telephone calls, the police had specifically told her that she need not make any identification, the calls were highly unusual so the witness paid “close attention” to them, the witness’s identification was “positive and unshaken,” and the time between the second call and the identification procedure was only “approximately three weeks.” (Id. at p. 137.) From these facts, the court concluded that “ ‘the procedure was not so suggestive as to give rise to a substantial likelihood of misidentification.’ ” (Ibid., quoting People v. Osuna (1969) 70 Cal.2d 759, 765.)
In our view, these factors apply with at least equal force in this case. Morse had a good opportunity to hear the robber’s voice over a 30-minute period. He was told he was under no obligation to make an identification and he did not feel any obligation to do so. The robbery was a highly unusual circumstance in Morse’s experience and he had every reason to pay close attention to the robber’s voice. Morse was absolutely certain of his identification and the identification was made the day after the robbery. Unlike the witness in Clark, Morse had some professional expertise and experience in distinguishing sounds. Also unlike the witness in Clark, Morse was identifying the voice of a speaker who had been standing close to him, rather than someone whose voice he had only heard over a telephone. While it is true that the robber in this case attempted to disguise his voice by whispering, that factor is not alone sufficient to distinguish Clark.
Even assuming, however, that Morse’s voice identification was unreliable under the totality of the circumstances, any error in its admission was harmless beyond a reasonable doubt. Perez-Sullivan had seen and spoken to defendant many times when he lived two doors away, and she was confident in her identification of the robber as defendant. A substantial amount of trial evidence, emanating from multiple reliable sources, reinforced Perez-Sullivan’s identification: (1) the robber specifically mentioned defendant’s former girlfriend, Camara, during the robbery; (2) the robber referred to Perez-Sullivan’s boyfriend as “Nat,” the name defendant knew him by; (3) defendant had acted like he was sexually attracted to Perez-Sullivan and the robber complimented her on her beauty and told her that her boyfriend was “lucky”; (4) the robber showed prior familiarity with the persons who lived in the Amethyst house and with its physical layout; (5) the robber knew that Perez-Sullivan used to keep her car in the garage and knew that she owned a distinctive “long black coat,” which the defendant had once commented on; (6) the robber seemed to be familiar with McAteer High School, which defendant had attended; (7) Perez-Sullivan recognized the robber’s laugh, habit of “sucking his teeth,” and use of the phrase, “Damn girl,” as characteristic of defendant; (8) Perez-Sullivan immediately and emphatically identified defendant as the robber, beginning with her initial call to 911 placed right after he let her go; (9) immediately after the robbery, defendant made unusually expensive cash purchases that matched up with the proceeds of the robbery both in amount and in the denomination of the bills used, but were out of line with defendant’s sources of legitimate income; (10) gloves, boots, and a mask found in defendant’s home were consistent with those worn by the robber; (11) defendant admitted to his girlfriend that he committed a robbery and described details of it that were consistent with the charged robbery; and (12) when the police took him into custody, defendant told his girlfriend, “I will see you in a few years.” Given the totality of the evidence connecting defendant to the robbery, any assumed error in admitting Morse’s voice identification testimony was harmless under Chapman.
B. Juror Misconduct
Defendant maintains that the trial court failed to properly respond to a request for a readback of testimony and that, as a consequence, one or more jurors improperly relied on their notes as a substitute for a readback of the testimony. We are not persuaded.
1. Facts
Before jury deliberations began, the jurors were instructed as follows regarding the use of notes during deliberations: “You may use your notes during deliberations only to remind yourself of what happened during the trial. But remember, your notes may be inaccurate or incomplete. If there is a disagreement about what actually happened at trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations, not your notes.” (See CALCRIM No. 202.) The jury was further instructed that (1) the court would have to consult with counsel before responding to any inquiry, (2) any response might therefore take “some time,” and (3) the jurors should continue their deliberations while waiting for a response.
The jury began deliberations on Wednesday, June 14, 2006, at 3:35 p.m. On Friday, June 16, at 11:05 a.m., the court received a request from the jury for a readback of portions of the testimony of Julian Bagley-Jory. After discussing the request with counsel in an unreported conference, the court sent the jurors the following response: “We will not be able to provide readback of Julian’s testimony until Monday morning. [¶] Please continue deliberating. [¶] Thank you, [¶] Judge Woolard.” On June 16, at 2:05 p.m., the jurors announced they had reached their verdicts. Before accepting the verdicts, court and counsel discussed how the earlier readback had been handled. In sum, the defense and prosecution acknowledged that they had both agreed to the wording of the earlier response, but defense counsel stated that he had proposed also telling the jury the reason for the delay in providing a readback—that the court reporter would not be available until Monday—and giving the jury the option of going home and coming back on Monday. The court and the prosecution expressed neither agreement nor disagreement with defense counsel’s characterization of the off-the-record position he had taken earlier.
Following entry of the adverse verdicts, defendant moved for a new trial based in part on a declaration submitted by a defense paralegal stating as follows: “Based upon my conversations with several of the jurors . . . I learned that . . . [Juror Y] recorded very close notes of the trial proceedings. [Juror Y] frequently read from his notes. Because of the court reporter’s absence, these notes and the notes of the other jurors, were used to recreate the testimony of Julian Bagley-Jory.”
In opposition to defendant’s motion for a new trial, the prosecution submitted sworn declarations from two jurors. Juror Kevin P. stated that the defense paralegal’s conclusions “do not truly or accurately state what transpired in the jury room.” Kevin P. stated that the jurors used the notes of several jurors “as an aid to our memories throughout our deliberations.” He further stated that when requesting the readback of Bagley-Jory’s testimony the jurors were “fully aware of the Court’s instruction that [the jurors’] notes were . . . not meant to replace the court reporter’s official transcript of testimony.” Further, Juror Kevin P. averred the jurors were aware they could, if necessary, continue their deliberations and return on Monday to obtain the readback and that they did not feel any pressure to reach a decision before Monday. According to Juror Kevin P., the jurors all ultimately agreed that no readback was necessary since the issue of Bagley-Jory’s credibility could be resolved without regard to her exact words.
Juror S.Y. stated that during the deliberations the jurors relied on their notes, including Juror S.Y.’s “detailed notes” only as “an aid to recollection” and “not as a substitute for the official record of the trial.” Juror S.Y. also stated, “Everyone came to realize that neither our notes nor our requested readback was ultimately needed for the credibility determination we ultimately made with respect to any witness.”
The trial court denied defendant’s motion for a new trial or, alternatively, for an evidentiary hearing on the juror misconduct claim. The court found that the paralegal’s declaration constituted inadmissible hearsay and was “completely refute[d]” by the sworn juror declarations submitted by the prosecution. The court found there was no evidence of juror misconduct warranting further inquiry.
2. Analysis
The jurors were properly instructed on all aspects of note-taking and the use of notes. The jurors were also instructed that they could continue their deliberations while waiting for a response from the court. The law did not require that the jurors be given the option of suspending their deliberations until a readback of Bagley-Jory’s testimony was available. (See People v. Stafford (1973) 29 Cal.App.3d 940, 943–945; People v. Gonzales (1968) 68 Cal.2d 467, 472–473; People v. Slaughter (1917) 33 Cal.App. 365, 380.) The law also did not require that the reason for the delay be explained to the jurors. Further, the declaration of Juror Kevin P. establishes that the jurors understood they were not required to reach a verdict if they determined that the readback was necessary. Assuming without deciding that defendant could properly preserve his right to object to the trial court’s response even though his trial counsel agreed to it and placed no timely objection on the record, we find no error in the response given.
Regarding the juror misconduct claim, the trial court correctly determined that no evidentiary hearing or other relief was warranted. The defense paralegal’s hearsay declaration was refuted by the two juror declarations submitted by the prosecution. The paralegal’s allegation that juror notes were used to “recreate” Bagley-Jory’s testimony was entirely conclusory. Defendant’s showing was insufficient to warrant further inquiry into the issue of juror misconduct. (See People v. Cox (1991) 53 Cal.3d 618, 697 [no abuse of discretion in denying new trial motion claiming jury misconduct based on defense investigator’s declaration].)
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Swager, J.