Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF54934. James S. Hawkins, Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Calvin Todd Moore.
Stephen S. Buckley and Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant Robert Dean Salter, Jr.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Deardred Deshane Robinson.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendants Calvin Todd Moore, Jr., Robert Dean Salter, Jr., and Deardred Deshane Robinson appeal from their convictions of attempted robbery (Pen. Code, §§ 664, 211). Moore also appeals from the jury’s true finding that he personally used a deadly weapon, a pipe, inflicting great bodily injury. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).)
All further statutory references are to the Penal Code unless otherwise specified.
Moore contends (1) the trial court erred in admitting evidence that Moore’s brother offered the victim money not to testify, and (2) the finding that Moore inflicted great bodily injury is not supported by substantial evidence. Salter contends (1) the trial court abused its discretion in rejecting the probation department’s recommendation and denying Salter’s request for probation, and (2) his sentence should be modified by correcting his custody credits. Robinson contends (1) the evidence was insufficient to support his conviction for attempted robbery, and (2) the trial court abused its discretion in denying his application for probation. In addition, each defendant joins in all issues raised by his codefendants to the extent those issues accrue to his benefit.
The People argue, and we agree, that any error in the admission of testimony that Moore’s brother offered the victim money not to testify was harmless. The People also concede, and we agree, that Salter’s custody credits must be adjusted. We find no other errors.
II. FACTS AND PROCEDURAL BACKGROUND
In the afternoon of June 22, 2006, Clifford Lee Jackson was working as a detailer for a car wash at a truck stop. Robinson and Salter approached him. Jackson recognized the two men because they lived in his ex-wife’s neighborhood, and he had seen them around. One of the men said, “Give it up. Give it up n-----,” in an aggressive way. Jackson understood that the men wanted him to give up some money. Jackson tried to ward off the men with the high-pressure hose he was using. Meanwhile, a third man approached from the rear and hit Jackson in the back of the head with a metal object. Jackson fell to the ground, dazed and hurt.
Jackson testified he did not initially see who had struck him, but when he got up, he saw Moore holding a metal pipe or pole about five feet long and an inch to an inch and a half in diameter. Jackson recognized Moore from prior contacts. Jackson got up and started running. The three assailants got into a black truck and chased Jackson. The truck stopped, and the three assailants got out and chased Jackson on foot. Jackson ran into a service station and had the cashier call the police.
The jury was shown a surveillance videotape of the incident. Jackson identified the three defendants as the individuals shown on the videotape.
Officer Bryan Traynham of the Indio Police Department responded to the call within minutes. He noticed that Jackson appeared shaken up, and the right side of his forehead had started to swell. Blood was dripping from his injury, but Jackson said he was all right and did not need medical attention. He instead wanted to help locate the assailants. Jackson told the officers that his attackers were Robinson and Salter, but he could not remember Moore’s name. Jackson got into Officer Traynham’s patrol car, and they went to where Jackson knew Salter and Robinson lived. On the way, Jackson saw Moore riding a bicycle and thought he was one of the assailants, although Jackson was not sure. Jackson directed Officer Traynham to Salter’s house. A black truck, which Jackson identified as the assailants’ truck, was parked in front of the house. The truck turned out to be registered to Salter’s grandmother. On June 22, Jackson identified Robinson and Salter in photographic six-pack lineups, and on June 28, he identified Moore from another photographic lineup.
Jackson went to the hospital later on June 22. He had a gash and a one-inch to one and one-half inch lump on his head that was purple and bleeding, and he was given antibiotics and painkillers and sent home. Photographs of his injuries were shown to the jury. He did not receive any stitches, and no bones were broken. At the time of trial, he continued to suffer from headaches, sweats, nightmares, and paranoid feelings, and he had a scar from the injury, which he pointed out to the jury.
Officer Traynham went to Robinson’s house on June 23 and spoke there to Nina Wilson, Robinson’s aunt. Wilson told Officer Traynham that she had spoken with Robinson and Salter, and both men were scared and in hiding. However, at trial, Wilson denied she had told Officer Traynham that.
Officer Traynham interviewed Moore, and during the interview, Moore stated, “[W]hy would I rob a guy who was washing trucks.” Officer Traynham had told Moore that he was investigating an incident at the truck stop, but he had not told Moore that the victim had been washing trucks.
Moore’s trainer testified Moore was in training to become a professional boxer. Moore had arrived at the gym at about 3:00 p.m. on June 22 and was still there when the trainer left at about 3:30 p.m. His workout was scheduled to last for an hour and a half.
The jury found all three defendants guilty of attempted robbery (§§ 664, 221) and found true the allegations that Moore had personally used a deadly weapon and had inflicted great bodily injury (§§ 12022, subd. (b)(1), 12022.7, subd. (a)). Moore admitted a prior robbery conviction as a strike prior and a serious felony prior. (§§ 667, subds. (a), (c) & (e)(1), 1170.12, subd. (c)(1).)
The trial court sentenced Moore to a total of 13 years and sentenced Salter and Robinson each to two years in prison.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Admission of Evidence That Moore’s Brother Offered the Victim Money Not to Testify
Moore contends the trial court erred in admitting evidence that Moore’s brother offered the victim money not to testify. Moore argues that because there was no foundational evidence connecting him with the bribery attempt, the evidence was irrelevant and highly prejudicial. The People contend that even if it were error to introduce the challenged evidence, any error was harmless.
1. Background
Before trial, the prosecutor sought a ruling on the admissibility of evidence that at the preliminary hearing, Moore’s brother, Kevin Moore, approached Jackson and offered him $650 if he would not testify against Moore. The theory of admissibility was that tape recordings of Moore’s conversations at the jail showed a consciousness of guilt. In one conversation, Moore said, “‘Somebody needs to go talk to him. Don’t threaten him. Don’t threaten him. It’s just going to make it worse for me. I need somebody to go talk to him. Just tell him don’t go.’” In another conversation, a woman told Moore that she told Moore’s brother “not to.” The brother smiled as he walked away, which, the prosecutor argued, implied the brother was not going to “listen to her saying not to go talk to anybody.” In a third conversation, the woman was identified as “Kendall.” She and Moore talked about the charge being dropped if the witness did not testify. Moore said he was going to be “out on the 13th,” the date scheduled for the preliminary hearing.
The trial court ruled that the evidence would be admissible against Moore.
At trial, Jackson testified that on the day of the preliminary hearing, a man approached him in the hallway of the courthouse and sat next to him. The man said, “That’s my folks” and the man offered to give Jackson money if Jackson would “say that [he] didn’t see him there.” Jackson did not respond and told the prosecutor what had occurred. Jackson testified he felt “a little bit concerned” for his safety about testifying and that he was afraid “[t]hat it might happen again.”
Officer Traynham testified that at the preliminary hearing, Jackson had pointed out the man who had offered Jackson money not to testify. Officer Traynham recognized the man from previous contacts as Moore’s brother. Officer Traynham also testified that he had no information suggesting that Moore had told his brother to offer Jackson money.
During argument to the jury, the prosecutor stated, “In the face of harassment, in the face of attempted bribes, having family members of Mr. Moore coming up to [Jackson] before he testifies, he’s still scared. He’s still paranoid. He still can’t wash a truck without jumping if somebody comes up from behind him.” However, the prosecutor withdrew his request for a jury instruction that “someone other than the defendant tried to create false evidence or provide false testimony” which may show that the defendant “was aware of his guilt but only if the defendant was present and knew about that conduct or, if not present, authorized it.” The trial court did not instruct the jury as to any limitation on the use of the evidence of the bribery attempt.
2. Analysis
In the absence of evidence that the defendant made or authorized threats, evidence of threats to a witness is inadmissible to prove the defendant’s consciousness of guilt. (People v. Hannon (1977) 19 Cal.3d 588, 599-601, superseded by constitutional amendment on other grounds as stated in People v. Belton (1992) 6 Cal.App.4th 1425, 1429 & fn. 1.) However, evidence of a threat to a witness may be admissible as relevant to the credibility of the witness, such as to explain the basis for the witness’s fear. (People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588 [“[i]t 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”].) In People v. Earp (1999) 20 Cal.4th 826, 877, the trial court permitted evidence of a third-party attempt to bribe a witness because it was relevant to the witness’s credibility. Here, the evidence of the bribery attempt was similarly relevant and admissible for that limited purpose in the present case.
And even if it was error to admit the challenged evidence, any such error was harmless. The case against Moore was strong. Jackson recognized Moore from a previous contact and pointed out Moore on a bicycle shortly after the crime as possibly one of the assailants. Jackson selected Moore’s photograph from a photographic lineup a few days later. Jackson’s credibility was reinforced by other evidence — he named Salter and Robinson as the other assailants and directed Officer Traynham to Salter’s house where the truck used in the chase was parked. The truck was registered to Salter’s grandmother. When being interviewed about the crime, Moore stated, “[w]hy would I rob a guy who was washing trucks?” although Moore had not been told that the victim at the truck stop had been washing trucks. Moreover, Officer Traynham testified that no evidence showed Moore knew of his brother’s attempt to bribe Jackson. We conclude it is not reasonably probable the jury would have reached a different verdict if it had not heard about the bribery attempt. (People v. Earp, supra, 20 Cal.4th at p. 878.)
B. Sufficiency of Evidence
Moore contends the evidence was insufficient to support the jury’s finding that he inflicted great bodily injury because Jackson’s injury was not significant or substantial. Robinson contends the evidence was insufficient to support his conviction of attempted robbery. He argues no evidence showed he either harbored a specific intent to rob Jackson or took any overt or ineffectual act towards depriving Jackson of any property.
We assume Salter and Moore have joined in this argument.
1. Standard of Review
When a defendant challenges the sufficiency of the evidence to support his conviction, we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 578.) Substantial evidence -- meaning, evidence that is reasonable, credible and of solid value -- must support each essential element of an offense. (Id. at p. 578.) A judgment of conviction will not be set aside for insufficiency of the evidence to support the jury’s verdict unless it is clearly shown there is no basis on which the evidence can support the jury’s conclusion. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The same standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
2. Analysis
a. Evidence of great bodily injury
The determination whether great bodily injury occurred is a question of fact for the trier of fact. (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).) “Great bodily injury” for purposes of section 12022.7, “means a significant or substantial physical injury.” (§ 12022.7, subd. (f).) However, a finding of great bodily injury does not require that the victim suffer permanent or protracted injury, disfigurement, impairment, or loss of bodily function. (Escobar, supra, at p. 750.) Here, the jury was instructed that “[g]reat bodily injury means a significant or a substantial injury. It is an injury that is greater than minor or moderate harm.”
Several cases have addressed specific types of injuries that were held to constitute great bodily injury. For example, in Escobar, the Supreme Court held that a rape victim’s bloody knees, abrasions, and sore neck and vagina constituted great bodily injury. (Escobar, supra, 3 Cal.4th at pp. 744, 750.) In People v. Wallace (1993) 14 Cal.App.4th 651, 665-666 (Wallace), the court held that one victim’s loss of feeling in a finger for two months after being tied up and another victim’s suffering 24 hours of pain from being sprayed with an insecticide-like substance constituted great bodily injury. (See also People v. Sanchez (1982) 131 Cal.App.3d 718, 733 (Sanchez) [upholding a great bodily injury finding when the victim suffered multiple abrasions and lacerations, swelling, and bruising]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 (Jaramillo) [upholding a great bodily injury finding when the child victim suffered multiple painful contusions with swelling and severe discoloration that was visible the next day].)
Here, Jackson suffered a blow to the head with a metal pipe; the blow was sufficient to knock him to the ground and cause a one-inch to one and one-half inch bump with discoloration and bleeding. Photographs of the injury were shown to the jury. Jackson was treated the same day of the injury at the hospital with antibiotics and painkillers. Even at the time of trial, six months after the attack, Jackson was still suffering migraine headaches.
Jackson’s injuries, as described above, were at least as severe as those suffered by the victims in Escobar, Wallace, Sanchez, and Jaramillo. We therefore conclude the evidence was sufficient to support the jury’s finding of great bodily injury.
b. Evidence of attempted robbery
The crime of attempt requires a specific intent to commit a crime and a direct, but ineffectual, act done toward its commission. (People v. Reed (1996) 53 Cal.App.4th 389, 398.) To establish the crime of attempted robbery, the People must prove the specific intent to commit robbery and a direct, unequivocal, overt act toward its commission. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 862.) “‘[T]he intent required for robbery . . . is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 506-507.)
Here, the evidence, including Jackson’s testimony and a surveillance videotape of the incident, showed that Salter and Robinson approached Jackson at his place of work while Moore came up on him from behind, holding a metal pipe. One of the men said, “Give it up,” and “Give it up, n-----,” which Jackson understood as a demand to hand over money. The jury could reasonably interpret the words in the same manner, and as so interpreted, the words are sufficient to establish the element of specific intent to commit robbery.
Moreover, when Jackson turned his water hose on Salter and Robinson, Moore struck Jackson from behind with the metal pipe. The three men then got in their truck to chase Jackson when he ran. The facts that the three assailants worked in unison and that Moore armed himself with a metal pipe or pole showed that they intended to use fear and/or force to attain their objective. The jury could reasonably conclude that their concerted activities were direct and overt actions toward depriving Jackson of his property — only the fact that Jackson reached a place of safety in the gas station prevented completion of the crime.
We conclude the evidence amply supported defendants’ conviction of attempted robbery.
C. Denial of Probation
Salter and Robinson contend the trial court abused its discretion in rejecting their requests for probation
1. Background
a. Salter’s probation report
Salter’s probation report reflects that he had no previous criminal record, with the exception of a fine for driving without a license and weaving in a lane, and a pending violation of the Vehicle Code for having an obstructed view, an infraction. Salter told the probation officer he had graduated from high school in 2005. He was engaged, and his fiancée was expecting a child. Salter denied any drug addiction. The probation report noted that Salter associated with members of the Trae 9 Crips gang.
As to the crime of attempted robbery, Salter stated he had been in “the wrong place at the wrong time.” He claimed that he and Jackson had gotten into a verbal confrontation, and he only intended to intimidate Jackson by surrounding him. Salter claimed he never intended to rob or harm Jackson.
The probation report indicated that Salter was remorseful, and he believed his time in custody had a tremendous impact on him. He promised to comply with all the court’s orders.
The probation report stated that Salter was eligible for probation, and the probation officer recommended three years on probation. Factors supporting probation were Salter’s lack of a criminal record, his willingness to comply with probation conditions, his ability to comply with probation conditions, the likely serious effects of imprisonment, the adverse consequences of a felony conviction, and Salter’s remorse. The probation report listed several factors supporting a denial of probation: (1) the offense was serious as compared to other instances of the same crime; (2) Salter was an active participant in the commission of the crime; and (3) the manner in which the offense was carried out indicated sophistication and planning. The probation report also listed circumstances in aggravation: (1) the crime involved great bodily harm which disclosed a high degree of cruelty; (2) the circumstances indicated sophisticated and planning; and (3) the crime involved violent conduct that indicated a serious danger to society. Salter’s lack of a prior criminal record was the only factor in mitigation.
b. Robinson’s probation report
Robinson’s probation report reflects that he had prior convictions for carrying a switch blade longer than two inches (Pen. Code, § 653k) and reckless driving (Veh. Code, § 23013). He had been granted probation for both offenses. He also had been fined four times for Vehicle Code violations, and he had a pending case for Vehicle Code violations.
Robinson had graduated from high school in 2004. He was engaged, and he had a one-year-old son whom he supported. Robinson denied any drug addiction. The probation report indicated that, like Salter, Robinson associated with members of the Trae 9 Crips gang.
Also like Salter, Robinson indicated he had been in the wrong place at the wrong time. He said his codefendants had given him a ride to pick up his vehicle at a lube shop, and Salter and Jackson had had an argument at the truck stop. The “situation escalated from there.” Robinson denied being part of the assault and said he had never intended to rob or harm Jackson. When asked why he did not stop the altercation, Robinson said his codefendants would not listen to him, so he left them alone.
Robinson said he felt his time in custody had had a tremendous impact on him. He would like to provide for his family, and he would comply with all court orders.
The probation report stated that Robinson was eligible for probation, and the probation officer recommended three years on probation. Factors supporting a grant of probation were that Robinson was willing and able to comply with probation conditions, the likely effects of imprisonment would be serious, the adverse consequences of a felony conviction could be serious, and Robinson was remorseful. However, the probation report listed several factors supporting a denial of probation: (1) the offense was serious as compared to other instances of the same crime; (2) Robinson was an active participant in the commission of the crime; and (3) the manner in which the offense was carried out indicated sophistication and planning. The probation report also listed circumstances in aggravation: (1) the crime involved great bodily harm which disclosed a high degree of cruelty; (2) the circumstances indicated sophisticated and planning; and (3) the crime involved violent conduct that indicated a serious danger to society. Robinson’s insignificant prior criminal record was the only factor in mitigation.
c. Trial court’s statements at sentencing
At the sentencing hearing, the trial court read letters of support on behalf of Robinson. The trial court expressed surprise that Moore faced up to 15 years in prison, while Robinson and Salter each faced only up to three years, and the trial court did not know why additional allegations were not charged against Robinson and Salter.
Moore had a strike prior, which would double his sentence, and he had a prior serious felony conviction, which would add an additional five years. In addition, it was pleaded and proved as to Moore that he personally used a deadly and dangerous weapon and personally inflicted great bodily injury. None of those enhancement allegations applied to Salter or Robinson.
The trial court discussed the factors relevant to probation and noted that although Salter expressed remorse, he had also said he had wanted to intimidate Jackson. The trial court stated it had been later suggested that the reason for the attack was a drug debt. The trial court also noted that a videotape of the offense showed that Salter and Robinson distracted Jackson while Moore struck him on the head from behind, and it appeared all three had been equal participants. The trial court sentenced Salter and Robinson to the middle term of two years in prison.
2. Analysis
Probation is an act of leniency, not a matter of right (People v. Birmingham (1990) 217 Cal.App.3d 180, 185), and the trial court has broad discretion in determining whether or not to grant probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) On appeal, the defendant bears a heavy burden to show an abuse of that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) A decision denying probation will be set aside only upon a clear showing that the trial court acted arbitrarily or capriciously. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
The trial court stated that the videotape of the crime showed that Salter and Robinson distracted Jackson while Moore was behind the victim. After Moore hit the victim with the pipe, Salter and Robinson did not stop their participation, but joined Moore in a pickup truck to give chase to Jackson.
This was not Robinson’s first offense — he had previously been granted probation for convictions for a weapons offense and reckless driving. Moreover, both Robinson and Salter were reported to associate with members of a gang. And, as the trial court stated, their crime was worse than the usual attempted robbery because the victim suffered injury.
In light of these circumstances, we conclude the trial court did not abuse its discretion in denying probation.
D. Custody Credits
Salter contends his sentence should be modified to reflect 30 days of custody credits because his credits were erroneously restricted to no more than 15 percent under section 2933.1. The People concede his custody credits should be modified.
The People have assumed that Robinson has joined Salter’s argument with respect to the calculation of custody credits. However, in his reply brief, Robinson stated that he filed an ex parte application in the trial court to correct custody credits, and the trial court granted the motion, awarding Robinson 93 days of credit, consisting of 63 actual days in custody and 30 days of custody credit under section 4019. Thus, the issue is moot as to Robinson.
1. Background
At sentencing, the trial court stated that Salter had credits of 63 days of actual custody plus 9 days of custody credits, for a total of 72 days. The minute order and abstract of judgment reflect that his custody credits were imposed and calculated under section 4019.
2. Analysis
Section 2933.1, which restricts credits to no more than 15 percent for felonies listed in section 667.5, subdivision (c), applies only when the defendant’s current conviction is a violent felony listed in section 667.5. (See People v. Henson (1997) 57 Cal.App.4th 1380, 1389.) Attempted robbery is not one of the enumerated offenses. (§ 667.5.) Thus, Salter’s custody credits should have been calculated under section 4019, allowing six days to be deemed served for every four days spent in actual custody. (§ 4019, subd. (f).) The People concede that Salter is entitled to 30 days of custody credits. We will therefore order the abstract of judgment to be modified accordingly.
IV. DISPOSITION
The judgments are affirmed as to defendants Moore and Robinson. The trial court is directed to award Salter a total of 30 days of custody credits and to prepare an amended abstract of judgment. The superior court clerk is directed to forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment as to defendant Salter is affirmed.
We concur: RAMIREZ, P.J., MCKINSTER, J.
The issue does not apply as to Moore because the jury’s finding that he personally inflicted great bodily injury, making his offense a violent felony under section 667.5, subdivision (c), means that section 2933.1 governs his custody credits.