Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge., Super. Ct. No. 05WF0681.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
ARONSON, J.
A jury found Chung Phuoc Phung guilty of residential burglary and robbery. He challenges the sufficiency of the evidence to support his convictions, and complains the prosecutor committed misconduct during closing argument. He also contends the trial court erred in failing to stay a consecutive term for robbery under Penal Code section 654 (all further statutory references are to this code unless noted). For the reasons expressed below, we modify the judgment and affirm.
I
Factual And Procedural Background
Around 1:30 p.m. on January 19, 2005, Hai Dang picked up his 11-year-old brother from school and returned to their Midway City home. Arriving home, he found the gate and front door unlocked. Inside the house, he encountered a man, who he later identified as defendant, standing in the living room about five to six feet away. Defendant turned and ran down a hallway towards Dang’s bedroom. Defendant and another man then emerged from the bedroom. Dang grabbed defendant and simultaneously tried to dial 911 while keeping defendant in his grasp. He lost his grip when defendant’s partner ran up and pushed Dang aside. Defendant pushed Dang and ran out the door. Dang chased him across the street but stopped when he realized defendant’s cohort remained in the house with his brother. When he returned, he spotted defendant’s accomplice run out the door and flee down the street. Dang briefly chased the culprit, but stopped to report the crime.
Dang’s mother reported three rings, worth $3,500, missing from her jewelry box. The thieves also took an expensive watch from Dang’s brother’s room. They left a shopping bag containing a pair of Dang’s tennis shoes and a laptop computer lying next to the living room wall.
Dang told investigators defendant’s face looked familiar. After speaking with a friend, Dang recalled seeing defendant at Westminster High School, which Dang attended for four years, graduating in 2001. Dang recalled defendant had not been a student, but he had seen him around school a few times and remembered defendant had fought two other people in a fist fight. Dang believed the fight occurred after his freshman year. Dang’s friend also had seen the fight and remembered the man’s name was Chung, but went by “Tony.” Dang denied telling a defense investigator he had seen “Tony” four or five times at school during his senior year.
Less than two months after the incident, Dang was waiting to see his academic counselor at Golden West College when he saw defendant walk past him. Dang called the police when a school employee provided defendant’s name, which matched the name mentioned by Dang’s friend. Dang selected defendant from a photo lineup and identified him at trial as the burglar.
Defense
A parole officer testified defendant had been incarcerated from November 19, 1998 to April 16, 2002. Chris Tran, an investigator with the Orange County Public Defender, interviewed Dang on July 6, 2005. Dang’s account differed in some respects from his account to police and his testimony. He claimed he arrived home around 3:30 or 4:00. He pinned defendant on the floor during the struggle so he got a good look at his face. He had seen “Tony” four or five times at school during his senior year. Dang called the investigator later and said he may also have seen him during his sophomore year.
An experimental psychologist, Robert Shomer, testified eyewitness identification is generally unreliable. Shomer explained a stressful environment negatively affects a person’s ability to accurately identify a stranger, a person generally does not focus attention on an assailant’s face during a struggle, accuracy of memory dramatically decreases over time, especially after 24 hours, and a witness’s certainty of identification has no correlation to the accuracy of that identification unless the person has had long or frequent contact with the person. Given the facts of the current identification as a hypothetical, Shomer testified the identification had no validity because the witness already had concluded who was responsible.
In November 2005, the jury convicted defendant of first degree residential burglary and robbery and found a person not an accomplice was present during the burglary. (§ 667.5, subd. (c)(21).) The court found defendant had suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law. (§ 667, subds. (d) & (e)(1).) In March 2006, the court imposed a nine-year prison term comprised of a doubled four-year midterm for burglary and a consecutive one-year term for the robbery.
II
Discussion
A. Sufficient Evidence of Identity
Defendant argues the prosecutor failed to establish defendant as one of the perpetrators. He argues Dang’s identification was “inherently unbelievable” and failed to provide an adequate “foundation to support” the convictions.
In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence, i.e., evidence which is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Elliott (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139 (Crittenden).)
We presume in support of the judgment the existence of every fact the jury could have deduced from the evidence. (Crittenden, supra, 9 Cal.4th at p. 139.) A reviewing court may sustain a conviction based on the uncorroborated testimony of a single witness. (People v. Gammage (1992) 2 Cal.4th 693, 700.) It is the jury’s exclusive province to assess the credibility of the witnesses, resolve conflicts in the testimony, and weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The fact the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, a defendant “bears an enormous burden” when challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
An in-court eyewitness identification alone is sufficient to sustain a conviction. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Hughes (1969) 271 Cal.App.2d 288, 291.) Where, as here, the circumstances surrounding the identification have been exhaustively investigated at trial, the trier of fact’s evaluation of that evidence, reflected in the verdict, is binding on the reviewing court. (In re Gustavo M., supra, at p. 1497.) For “‘a reviewing court to set aside a jury’s finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.’” (People v. Prado (1982) 130 Cal.App.3d 669, 674 (Prado), abrogated on other grounds by People v. Howard (1992) 1 Cal.4th 1132, 1175, fn. 17.) Thus, “‘it is not essential that a witness be free from doubt as to one’s identity’” to sustain a conviction. (Prado,at p. 674.) Failures and inconsistencies impact only the weight of the evidence, not its sufficiency. (Ibid.) Finally, we may not reject evidence as inherently improbable unless it is shown to be “‘physically impossible or so clearly false and unbelievable that reasonable minds may not differ with respect thereto.’” (People v. Jenkins (1965) 231 Cal.App.2d 928, 931.)
Here, there is nothing inherently improbable about Dang’s identification of defendant. Dang observed defendant at close range for several minutes during the burglary. He testified defendant looked familiar, and spotted defendant less than two months later at Golden West College. Dang had seen defendant on his high school campus and watched him in a fist fight that occurred after Dang’s freshman year. Although Dang thought he saw defendant during Dang’s junior or senior year in high school, he was not certain. Thus, the jury could reasonably conclude Dang’s observations of defendant occurred before defendant’s November 1998 incarceration.
Defendant emphasizes other evidence undermining the prosecution’s case, such as the identification expert’s testimony and the lack of physical evidence connecting defendant to the crime, but it is not our task to reweigh the evidence. Given the victim’s ample opportunity to view defendant at close quarters, defendant’s substantial evidence challenge fails.
B. Sufficient Evidence of Robbery
1. Constructive Possession
Defendant challenges his robbery conviction because none of Dang’s property had been taken and Dang had no constructive possession over any of the stolen property. We conclude ample evidence shows Dang possessed the property taken in the robbery.
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will accomplished by means of force or fear. (§ 211.) California follows “the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken.” (People v. Nguyen (2000) 24 Cal.4th 756, 764 (Nguyen).) “‘Robbery is an offense against the person; thus a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the property.’” (People v. Miller (1977) 18 Cal.3d 873, 880.) Business employees “have sufficient representative capacity to their employer so as to be in possession of property stolen from the business owner.” (People v. Jones (2000) 82 Cal.App.4th 485, 491.) A fortiori, a family member acts in a representative capacity over property belonging to other family members. As “custodian,” the family member is deemed to possess the property and has the right to resist a robbery with violence, if necessary. (People v. Gilbeaux (2003) 111 Cal.App.4th 515, 521.)
In People v. Gordon (1982) 136 Cal.App.3d 519, the defendants entered a residence by ruse, threatened a couple with a firearm, and took drugs and money belonging to the couple’s absent adult son. The appellate court noted neither parent physically possessed the items taken nor knew about the marijuana or money, and the only evidence to support a finding of possession was the couple’s ownership and residence in the home where the crime occurred. (Id. at p. 529.) The court upheld the jury’s determination the parents were robbery victims who possessed their son’s items for purposes of the robbery statute. (Ibid.) The court noted various individuals have been designated as victims in a robbery: (1) a purchasing agent in charge of payroll (People v. Clark (1945) 70 Cal.App.2d 132); (2) store clerks (People v. Guerin (1972) 22 Cal.App.3d 775, disapproved on other grounds in People v. Ramos (1982) 30 Cal.3d 553, 589, fn. 16); (3) barmaid (People v. Poindexter (1967) 255 Cal.App.2d 566); (4) janitors in sole occupation of premises (People v. Downs (1952) 114 Cal.App.2d 758); (5) watchmen (People v. Dean (1924) 66 Cal.App. 602); and (6) gas station attendants (People v. Arline (1970) 13 Cal.App.3d 200, disapproved on another point in People v. Hall (1986) 41 Cal.3d 826, 834). “Clearly, if those individuals enumerated in the paragraph above were responsible for the protection and preservation of the property entrusted to them, parents have at least the same responsibility to protect goods belonging to their son who resides with them in their home. We hold there is substantial evidence to uphold this determination.” (Gordon, supra, at p. 529.)
Here, ample evidence supported the jury’s determination Dang had responsibility to protect goods belonging to his mother or brother who resided with him in the home. (Cf. Sykes v. Superior Court (1994) 30 Cal.App.4th 479 [security guard employed at different store not in constructive possession of property]; People v. Galoia (1994) 31 Cal.App.4th 595 [independent contractor at convenience store did not have sufficient interest in store property to be victim]; Nguyen, supra, 24 Cal.4th 756 [visitor at business not in constructive possession of property taken from business and its employees].)
2. Immediate Presence
To constitute robbery, the assailant must take the property from the “person or immediate presence” of another. (§ 211.) Defendant contends the prosecution failed to establish defendant removed the stolen property from Dang’s immediate presence. Again, we disagree.
The term “immediate presence” means an area within which the victim exercises some physical control over the property. (People v. Hayes (1990) 52 Cal.3d 577, 627.) “Under this definition, property may be found to be in the victim’s immediate presence ‘even though it is located in another room in the house, or in another building on [the] premises.’” (Ibid.; see People v. Holt (1997) 15 Cal.4th 619, 675 [although victim slain in the bedroom, items stolen from her kitchen occurred in her immediate presence].)
Here, the jury could reasonably conclude defendant or his accomplice possessed the jewelry at the time they applied force to prevent Dang from retaining possession of his family’s property. Consequently, substantial evidence supported the jury’s determination defendant forcibly removed the property from Dang’s immediate presence.
C. Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct during opening and rebuttal argument by denigrating defense counsel, stating facts that were not in evidence, and appealing to the jury’s passions and prejudices.
During opening argument, the prosecutor stated: “I told you it was a simple case, and I think it probably can’t get much simpler, I submit that to you. [¶] Okay. There is an individual who is there when the crime is committed, he sees the person, he recognizes the person, he comes into court, takes an oath, and he tells you this is the person. Okay. It is a super simple case. All right. That’s why the defense in this case has to work so hard to try to manufacture something for you guys to hold onto. Try to manufacture some sort of an argument. Okay. [¶] There is no reasonable doubt here, all there is is doubt that is manufactured or imagined by the defense.” (Italics added.)
Defense counsel objected to the prosecutor’s suggestion the defense had been manufactured. Out of the jury’s presence, the prosecutor explained he was referring to “apparent inconsistencies” between the victim’s testimony and Dang’s pretrial statements to defendant’s investigator. The prosecutor asserted this evidence constituted “completely manufactured testimony, and that those inconsistencies, if they are going to be argued, are inconsistencies that are created by [the investigator] and the [defense lawyer’s] office.” Defense counsel complained “that is completely improper argument, it is implying that the defense is lying.” The court remarked the argument did not refer to the specific witness, “which is obviously fair game,” but found it improper for the prosecutor to suggest the defense attorney manufactured evidence. The court overruled the objection, but reminded jurors their role was to determine the facts, apply the law, and make credibility determinations.
The prosecutor continued his argument, clarifying that “when I refer to manufacturing doubt, what I am referring to is the witnesses in this case. Okay. What the witnesses testified to, all right.” Later, the prosecutor explained his reference to “manufacturing” concerned defendant’s investigator, who testified to Dang’s pretrial statements, which arguably impeached his trial testimony. Attacking this evidence, the prosecutor questioned why the investigator destroyed his notes and how he accurately could recall the conversation from a short one-page summary that failed to quote the witness. The prosecutor pressed his point: “What are they going to use to show that [Dang] had discrepancies in his testimony? They are going to use the investigator, remember her, Ms. Tran, okay. [¶] I submit to you that that was a joke. Okay. Here is an individual who is coming here, who says she works for the client, okay, who says that she needs to do what is in the client’s best interest, right. She is coming in here to try to tell you what Mr. Dang told her on some other occasion, okay. It is her job to try to find inconsistencies. [¶] . . . [¶] I submit to you that that’s a manufactured inconsistency, if there are any at all. Okay. Mr. Dang told you when he came up here and he testified, all right, he told you he recognized the individual. He didn’t know who the person’s name was, but he recognized the individual the minute he saw him. [¶] He even told that to the 911 operator when he called. Okay. . . .” Defense counsel did not object to this portion of the argument.
At the conclusion of his rebuttal argument, the prosecutor stated: “And I just ask, Ladies and Gentlemen, that you believe [Dang]. Okay. And that you don’t let this possible or imaginary doubt that has been created by these witnesses to come in here and let him and his family be victimized again. Don’t do that.” (Italics added.)
Defense counsel objected and out of the jury’s presence argued the prosecutor committed misconduct by suggesting an acquittal would again victimize Dang and his family. The court replied jurors should render a decision irrespective of the consequences, and that “if . . . the consequence of their decision is to victimize the victim again, that’s problematic.” When the jury returned, the court instructed them concerning the prosecutor’s last comment “that jurors are to find out what the facts are, and then apply the law and reach a just verdict, regardless of the consequences.”
A prosecutor’s intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “‘“egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”. . .’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Such pervasive misconduct requires reversal unless it is harmless beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 844 (Hill).) As a matter of state law, prosecutorial misconduct involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Espinoza (1992) 3 Cal.4th 806, 820.) State law misconduct necessitates reversal where it is reasonably probable the prosecutor’s intemperate behavior affected the verdict. (Id. at p. 821.)
It is improper for a prosecutor to attack the integrity of defense counsel or cast aspersions on him. (Hill, supra, 17 Cal.4th at p. 832.) Thus, it is misconduct for the prosecutor to imply that defense counsel fabricated evidence. (People v. Thompson (1988) 45 Cal.3d 86, 112.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, defendant must show a reasonable likelihood that the jury understood or applied the prosecutor’s comments in an improper or erroneous manner. (Frye, supra, 18 Cal.4th at p. 970.) In conducting that inquiry, we may not lightly infer the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. (People v. Howard (1992) 1 Cal.4th 1132, 1192.)
With these principles in mind, we address defendant’s complaints in turn. The prosecutor’s argument that the defense worked hard to manufacture doubt about the prosecution’s case did not constitute misconduct. Properly construed, the argument served as a “‘a reminder to the jury that it should not be distracted from the relevant evidence and inferences that might properly and logically be drawn therefrom.’” (People v. Williams (1996) 46 Cal.App.4th 1767, 1781 [prosecutor argued defense counsel had to “‘obscure the truth’” and “‘to manufacture doubt where none exist[ed]’” because facts pointed toward guilt].) The prosecutor’s comment that the defense worked hard to manufacture “something” presents a closer issue because a juror could interpret this as a reference to manufacturing or fabricating evidence. Given the statement’s ambiguity and the court’s prompt admonition concerning the jury’s role, we conclude there is no “reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
The prosecutor’s side bar explanation to the court revealed he meant to suggest the defense “created” or fabricated evidence, but fortunately failed to directly make this point. The court correctly informed the prosecutor this would constitute misconduct.
Turning to the prosecutor’s attack on defendant’s investigator and defendant’s related claim the prosecutor misstated evidence when he asserted Dang told the 911 operator he had recognized the intruder, defendant has waived the issue by failing to object below. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion –– and on the same ground –– the defendant made an assignment of misconduct and requested the jury be admonished to disregard the impropriety.” (Samayoa, supra, 15 Cal.4th at p. 841.) Moreover, the record discloses no grounds for applying an exception to this general rule. In any event, we discern no misconduct. The prosecutor’s comments focused on the evidence and potential bias of the witness, and did not run afoul of any legal or ethical boundaries. (People v. Arias (1996) 13 Cal.4th 92, 162 [harsh attacks on the credibility of opposing witnesses are permissible].)
Finally, we conclude the prosecutor’s appeal not to victimize Dang and his family was misconduct, but the court’s admonition cured any potential harm. We conclude it is not reasonably probable this isolated comment, corrected in a subsequent admonition, deprived defendant of a more favorable result.
D. Section 654
Finally, defendant argues the court erred by failing to stay the sentence for robbery under section 654 because both crimes were “based upon a single course of conduct facilitating one objective.” He states, “The robbery was . . . a means of effectuating the theft that was already in progress. Thus the burglary and robbery did not comprise separate or divisible acts. Since the two convictions were based on a continuous course of conduct, with the single objective of committing larceny, the trial court erred by imposing a consecutive sentence” for robbery. We agree.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, the court may impose punishment for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant’s intent and objective are factual questions for the trial court, and we will not disturb its decision if supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Ordinarily, section 654 bars multiple punishment for burglary and robbery that are part of an indivisible transaction. (People v. Smith (1985) 163 Cal.App.3d 908, 912.) In People v. Perry (2007) ___ Cal.App.4th ___ [2007 WL 2600581] (Perry), the court observed section 654 has been inconsistently applied in burglary cases where efforts to thwart the theft are met with violence, forceful resistance, or threats of violence. But the court discerned a general distinction between cases addressing convictions of burglary and robbery and cases addressing burglary and assault. The Perry court explained this distinction by focusing on the different intents required for robbery and assault. “Assault reflects an intent to perform an act that, by its nature, will probably and directly result in the application of physical force to another person. [Citation.] Robbery, while involving the use of force or fear, reflects an intent to deprive the victim of property. . . . [I]f property is taken during a burglary and a robbery pertaining to the same property is committed during the escape, the objective is still essentially to steal the property. Admittedly, an additional objective of preventing the victim or another person from taking back the property generally will exist, but may be incidental to, rather than independent of, the objective of stealing the property. At some point, the degree of force or violence used or threatened may evince ‘a different and a more sinister goal than mere successful commission of the original crime,’ i.e., an independent objective warranting multiple punishment. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191 [section 654 does not apply to “gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense”], implicitly overruled on another ground in People v. King (1993) 5 Cal.4th 59.)” (Perry, at p. ___.)
See, e.g., People v. Guzman (1996) 45 Cal.App.4th 1023 [section 654 barred punishment for both burglary in which motorcycle was taken from garage and robbery in which burglar used force against pursuing victim]; People v. Le (2006) 136 Cal.App.4th 925 [Attorney General conceded, and court agreed, section 654 barred punishment for both burglary in which goods were shoplifted from drugstore and force used against store employees attempting to prevent thieves from leaving with goods]; People v. Vidaurri (1980) 103 Cal.App.3d 450 (Vidaurri) [multiple punishment permissible for burglary in which goods stolen from store and numerous assaults with a deadly weapon upon store employees attempting to prevent thieves from leaving with goods]; People v. McGahuey (1981) 121 Cal.App.3d 524 [multiple punishment permissible for residential burglary involving theft of money and a hatchet and assault with a deadly weapon, where defendant threw hatchet through window from outside house at victim who was calling police].)
The court in Perry found the defendant’s objective in committing an auto burglary was the theft of the car stereo. The robbery occurred when the victim confronted the defendant at the car and the defendant adopted a “fighting stance” while holding a screwdriver or pick. Thus, the objective of the robbery was also the theft of the car stereo. “Although the robbery entailed a different type of action, i.e., the implied threat to use the screwdriver or ice pick, the underlying objective was necessarily identical: to steal Cruz’s car stereo. It is reasonable to conclude that [the defendant] also wanted to evade capture, but escaping was merely incidental to, or the means of completing the accomplishment of, the objective of taking the stereo. Accordingly, it cannot be said that [the defendant] acted with multiple independent objectives in committing the burglary and the robbery.” (Perry, supra, ___ Cal.App.4th at p. ___; cf. Vidaurri, supra, 103 Cal.App.3d 450 [defendant used extreme threats of violence reflecting an independent objective of applying force or harming victim].)
Here, the trial court found separate and independent objectives. The court concluded defendant intended to steal the victim’s property when he entered the residence, but entertained the separate intent to escape when he pushed the victim aside and fled. As Perry explained, escaping was merely incidental to, and the means of accomplishing the burglary, unless a defendant engages in gratuitous violence or other acts beyond that necessary to the underlying crime.
The trial court also emphasized defendant reverted to force after he committed the burglary by entering the residence. But as Perry explains, “The moment at which a defendant committed all of the elements of an offense is immaterial in applying . . . section 654. Similarly, whether an offense might be deemed ongoing for other purposes, such as application of the felony murder rule, is irrelevant in this context. [Citation.] The court must instead consider whether the offenses were part of an indivisible course of conduct, whether the defendant acted according to a single objective or multiple independent objectives, and whether the defendant committed violent crimes against different victims. No evidence supports a conclusion that appellant acted according to independent criminal objectives.” (Perry, supra, ___ Cal.App.4th at p. ___.) Applying the reasoning of Perry, we conclude the trial court erred as a matter of law and therefore should have stayed the robbery sentence.
II
Disposition
The judgment is modified (§ 1260) to reflect the sentence on count 2 (robbery) is stayed under section 654. The superior court is directed to prepare a corrected minute order and a corrected abstract of judgment and forward them to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.