Opinion
D072216
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. TERENCE SCOTT, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD267623) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
The People charged Terence Scott with seven counts of robbery (Pen. Code, § 211) for the robberies of three separate Verizon Wireless (Verizon) stores. Following a two-week trial, a jury convicted Scott on all counts. Scott raises two issues on appeal. First, Scott contends the trial court erred by excluding evidence of five uncharged cell phone (phone) store robberies, which Scott would have used in support of a third party culpability defense. Second, Scott contends the trial court erroneously instructed the jury with CALCRIM No. 372 regarding flight. We affirm the judgment because the trial court exercised its sound discretion in excluding the evidence and correctly fulfilled its sua sponte obligation to instruct the jury on evidence of defendant's flight offered to show consciousness of guilt.
II
BACKGROUND
A
Between February 2015 and April 18, 2016, Scott worked at a series of Verizon stores in San Diego County. Between May 30, 2016, and June 27, 2016, robberies at three local Verizon retailers occurred under similar circumstances. Scott had previously worked at the store robbed on May 30 and at the store robbed on June 7. Scott was arrested on June 28, 2016, and was charged with all three robberies on June 30, 2016.
B
Counts 1 through 3 charged Scott with robbing a Verizon store on May 30, 2016. The store ordinarily closed at 9:00 p.m. Around 8:35 p.m., an armed person entered the Verizon store. The gunman confiscated the employees' personal phones and locked the employees in the bathroom. All three employees agreed the gunman wore dark jeans, a black hoodie, and a bandana around his face. One of the employees, who knew Scott from having worked with him at a different Verizon store, did not recognize the gunman during the robbery. However, upon later reflection, the employee believed Scott was the gunman based on Scott's unique personal mannerisms.
Security cameras captured video of the gunman, accompanied by an accomplice, opening the safe where the store kept its inventory of unsold phones, and then leaving through the store's back entrance. The gunman appeared familiar with the operation of the safe, which involved depressing a foot pedal that would open the doors to the safe. The robbers took most of the iPhones and a couple of Samsung phones from the safe. The safe also contained a "tracker phone," which appears outwardly identical to a basic cell phone, but acts like a homing beacon leading to the thieves in the event that somebody steals the tracker. Neither of the robbers took the tracker phone.
The safes at all three of the robbed stores opened in the same manner.
The value of the stolen property exceeded $10,000 in each of the three charged robberies.
Cameras also captured video of the second robber emptying out the store's cash drawer. Neither of the robbers asked the employees about the tracker phone, the operation of the safe, or the location of the store's cash. Although he was not present during any of the robberies, the district manager (District Manager) responsible for all three of the involved Verizon stores had known Scott since 2015. The District Manager later identified Scott by voice as one of the robbers on the video with "maybe ... 80, 90 percent" certainty.
C
Counts 4 and 5 charged Scott with robbing a second Verizon store on the night of June 7, 2016. Two employees were working in the store at the 9:00 p.m. closing hour. Two black-clad robbers entered the Verizon store, confiscated the employees' personal phones and ordered the employees into the bathroom. Neither of the robbers asked the employees how to open the safe, or whether there was any cash in the store and where it might be located. They stole all of the iPhones and the most expensive Samsung phones from the safe, as well as the cash in the store's cash drawer. They did not take the tracker phone. The robbers left through the back door. One employee called the police on his smart watch. The police arrived 10 or 20 minutes later.
After the robbery, one of the employees identified Scott "without hesitation" as one of the robbers. The employee recognized Scott's voice, having worked alongside Scott for about one month during the three months prior to the robbery. While the police investigated the robbery, the employee used his smart watch to speak with the District Manager. The District Manager reviewed video from the store's surveillance system on the night of the robbery and recognized Scott's voice on the video with "99 percent certain[ty]."
D
Counts 6 and 7 charged Scott with robbing a third Verizon store on June 27, 2016. During that robbery, two armed gunmen entered the store at closing time. The robbers forced both store employees to lie down on the ground in the middle of the store's back room, then the robbers turned off the lights and asked for the employees' phones. The robbers took all of the expensive iPhones, as well as the store's cash, but left behind the tracker phone. One of the employees recognized Scott's voice "right away" as one of the robbers, because Scott was a former coworker. During the robbery, both robbers wore hoods and covered their faces with bandanas. Neither of the robbers asked about the location of the cash, the tracker phone, or the iPhones.
After the robbery, the employee who recognized Scott called the District Manager to report the robbery and Scott's involvement. The District Manager "immediately" reviewed video of the robbery and he concluded Scott had robbed the store because the robber's "voice sounded very similar."
E
Police arrested Scott's codefendant, Jamel Faultry, in Los Angeles three months after Scott's arrest. Faultry and Scott were friends outside the context of the robberies. The People charged Faultry with the same robberies as Scott. Faultry also faced charges for two other robberies, neither of which allegedly involved Scott.
F
At trial, the People offered additional evidence probative of Scott's guilt. Shortly before his arrest, Scott, accompanied by Faultry, pawned a phone that was stolen during the June 7, 2016 robbery. Police officers searched Scott's car after his arrest. In the car, police found a phone box which was taken during the June 27 robbery, a black jacket, a red bandana, rubber work gloves, black pants, a black ski cap with two holes cut out, and an airsoft gun. While he was in custody, Scott arranged delivery of a letter to his girlfriend, with instructions to deliver the letter to his friend, "J." The letter advised J there was a warrant for J's arrest, J should say nothing if apprehended, and J should leave the state as soon as possible. Finally, the prosecution's expert witness testified how cell phone data could place Scott at or near the various Verizon stores around the time of the robberies, during which time Scott's phone transmitted mobile data, but Scott initiated no phone calls or text messages.
The jury returned guilty verdicts on all seven counts. The trial court sentenced Scott to nine years in state prison. We affirm.
III
DISCUSSION
Scott claims error on two grounds, contending (A) the trial court improperly excluded evidence of five, separate and uncharged robberies that would have bolstered Scott's defense based on third party culpability; and (B) a trial court should not instruct the jury on a defendant's flight as indicative of his awareness of guilt when the evidence shows only a perpetrator left the scene of the robbery and where the identity of the defendant is in dispute. We reject both contentions.
A
The Exclusion of Third Party Culpability Evidence
Evidence of a third party's culpability is relevant if "capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. ... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) Relevance under Hall notwithstanding, a court may in its discretion exclude evidence that would necessitate undue consumption of time or confuse the jury. (Evid. Code § 352.) We review the trial court's decision to exclude evidence of third party culpability for an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.) We first consider the evidence Scott offered to prove his defense. We then conclude the trial court exercised its sound discretion by excluding that evidence.
1
Scott's Proffered Evidence of Third Party Culpability
On the first day of trial, in order to prove a defense based on third party culpability, Scott orally moved to admit evidence of a string of eight phone store robberies with which Scott had not been charged. Although the court expressed concern over effectively trying eight separate robberies in addition to the charged counts, which could push a seven-day trial to 20 days or more, the court ordered further briefing on Scott's motion. Scott's subsequent written motion describes the proffered evidence of eight additional robberies, all of which took place during a three-month period in 2016.
a
On May 27, two African-American males wearing black hooded sweatshirts robbed an AT&T Wireless retailer at 7:40 p.m. One suspect pressed a gun to the head of the store clerk and demanded the clerk open the safe. During the robbery, the suspects asked the clerk where the tracker phone was. The suspects then directed the clerk to hide in the bathroom while they left the store out the back door. The clerk described one of the suspects as five feet 10 inches tall and weighing about 160 pounds. Witnesses reported neither suspect wore a mask or gloves. The People later charged Faultry with the robbery.
b
On June 21, two men wearing dark hooded sweatshirts robbed a Verizon retailer around 8:30 a.m., about 30 minutes before opening. The robbers entered through the store's back door after knocking in the same manner as the store manager would have done. They then forced the clerk into the bathroom before they took the store's iPhones and Samsung phones. They left behind the tracker phone. One of the robbers appeared to have light skin, but had disguised himself with a mask, gloves, and a hoodie.
c
On June 28, two males wearing dark hooded sweatshirts robbed a Verizon retailer at 8:53 p.m. An African-American gunman wearing a dark hooded sweatshirt and a baseball cap first ordered the store clerk into the bathroom, then changed his mind and made the clerk lay down on the ground. A second suspect wore a red bandanna and a dark hooded sweatshirt. The robbers stole iPhones and Samsung phones, and asked the clerk about the location of the tracker phone while they were robbing the safe. The People later charged Faultry with the robbery.
d
On July 15, two African-American males dressed in dark clothes robbed a Verizon retailer at 8:30 p.m. One of the robbers forced the clerk to lie face down on the floor, and then asked about the store's tracker phone. The clerk heard, but did not see, a third person during the robbery. One of the robbers was described as being six feet tall and of medium build. The robbers took the tracker phone with them.
e
On July 21, two African-American males—accompanied by a third, unseen accomplice—robbed an AT&T Wireless store at gunpoint by ordering the clerk to open the safe and then to lie down on the ground. The clerk described both suspects as tall and in their 20's, with one of the suspects built heavier than the other. Both wore dark clothing.
f
On August 4, two African-American males robbed a Verizon store a few minutes before 8:00 p.m. One of the robbers pulled a gun and ordered the clerk to open the safe. The robbers then ordered the clerk to lie down on the ground next to the safe and asked where the tracker phone was. One of the robbers was described as wearing a dark jacket, sunglasses, a dark colored baseball cap, and appeared to have been 22 to 26 years old and of medium build.
g
On August 13, two African-American males, both over six feet tall and wearing black hooded sweatshirts, robbed a Verizon store at approximately 7:00 p.m. After ordering everyone into the store's back room and then to lie down on the ground, one of the robbers ordered an employee to open the safe, while the second robber stole iPhones and Samsung phones.
h
On August 22, three African-American males in dark clothing robbed a Verizon retailer at 7:15 p.m. after ordering the clerks to lie down on the floor at the back of the store. Witnesses identified two of the robbers as over six feet tall and heavy-set. One of the robbers asked the clerks about a tracker phone as another robber unloaded the safe.
2
The Trial Court's Decision
After hearing from both parties, the trial court allowed Scott to present evidence of the May 27, June 21, and June 28, 2016, robberies to prove a third party had committed the robberies with which Scott had been charged. For the May 27 and June 28 robberies, during which Scott had an alibi, the court allowed evidence showing Faultry, accompanied by an unidentified third party, had robbed both stores. The court allowed evidence of the June 21 robbery because, although Faultry had not been formally implicated in that robbery, the synchronicity of the June 21 robbery, coupled with evidence the suspects in that robbery had neither asked about nor taken the tracker phones, made the June 21 robbery relevant under Hall, supra, 41 Cal.3d at page 833.
Scott contends the court erred in excluding the five other robberies presented in his motion. As our Supreme Court held in Hall, motive or opportunity to commit the crime in some unspecified third party will not make otherwise irrelevant evidence admissible to show third party culpability. (Hall, supra, 41 Cal.3d at p. 833.) Further, there is no abuse of discretion where the trial court excludes evidence of other robberies offered in support of third party culpability when the offered robberies are sufficiently dissimilar to the charged crimes that they could not raise a reasonable doubt about the defendant's guilt. (People v. Von Villas (1992) 10 Cal.App.4th 201, 265-267 (Von Villas).)
In Von Villas, the defendant, charged with robbing a jeweler, contended "numerous facts about the time, place, and description of another robbery created a reasonable doubt about his guilt." (Von Villas, supra, 10 Cal.App.4th at p. 265.) The other robbery occurred three days before the charged robbery and eyewitnesses provided "vaguely similar" descriptions of the perpetrators in both robberies. (Ibid.) Because the defendant had an alibi for the second robbery, he argued the jury could first infer both robberies had been carried out by the same person and then conclude such person could not be the defendant on account of the alibi. (Ibid.) The court concluded "the totality of the ... evidence did not rise to the level necessary to create a reasonable doubt in regard to [the defendant's] guilt" and "the trial court's decision to exclude it was reasonable." (Id. at pp. 265-266.) The court relied on the fact that the charged robbery had been a calculated and coolly executed affair, whereas the robbery offered as exculpatory evidence demonstrated an "unprepared and disorganized" theft. (Id. at p. 266.) Absent any "direct or circumstantial evidence which links a third person to the actual perpetration of the crime," evidence of the other robbery could not raise a reasonable doubt as to the defendant's guilt. (Id. at pp. 266-267.)
The trial court in this case admitted evidence of three crimes meeting the requirements of Hall, supra, 41 Cal.3d at page 833. The court admitted the two robberies in which Scott could credibly argue that Faultry, and not Scott, had been the perpetrator. For the third robbery admitted, the court concluded the facts of the robbery were sufficiently similar to the charged robberies to justify admittance. Of the excluded robberies, the court concluded that randomly selected robberies characterized by "people in dark clothing walking into cell phone stores with guns and robbing them" were insufficiently similar to the charged robberies in this case.
Scott contends the facts of the excluded robberies are so similar to the robberies with which he was charged that were the jury to hear about them all it would entertain a reasonable doubt about Scott's involvement in the charged robberies because in all the robberies "no victims were hurt" and "[e]ach store was essentially cleaned out of unsold, high-end cellphones." We disagree.
Unlike the robberies charged to Scott in this case, in the July 15, August 4, and August 22, 2016 robberies, the robbers asked employees about the store's tracker phone. The manner of entry differed sharply between the charged robberies and the June 21 robbery, where the robbers allegedly entered through the back door after impersonating the store manager. Additionally, Scott's evidence offered in support of his motion indicates suspects in fact took the tracker phones—only to discard them later—in some of the excluded robberies. In most of the excluded robberies, the witnesses either provided no physical description of their assailants, or provided descriptions that did not resemble Scott's physical description. In the August 4 robbery, the robber who might have matched Scott's description dressed differently than Scott did, choosing a jacket and a black baseball cap in lieu of a hoodie and a bandana disguise. In the July 21 robbery, the suspects ordered the store clerk to open the safe instead of displaying the same familiarity with store protocols as Scott in the charged robberies. The record also reveals no evidence of another key detail of Scott's modus operandi as charged—confiscating the employees' phones—in the robberies offered as exculpatory evidence.
The parties in this case stipulate Scott is six feet one inches tall and weighs 160 pounds.
Similarities between the charged and uncharged robberies do not rise to a level compelling admittance under Hall, supra, 41 Cal.3d at page 833. As the trial court noted, robbers wearing dark clothing does not create a distinct modus operandi. We disagree with Scott that failing to kill or injure the victims makes the charged and uncharged robberies of a kind. Similarly, although all robberies appear to have targeted iPhones and high-end Samsung phones, it proves little when robbers target the most valuable goods available. As the Von Villas court concluded, separate robberies, however close in time but different in execution, do not by themselves raise a reasonable doubt as to the defendant's guilt. (Von Villas, supra, 10 Cal.App.4th at pp. 265-267.)
Based on these differences, we discern no abuse of discretion in the trial court's ruling the five excluded robberies amounted to nothing more than evidence of "mere motive or opportunity to commit the crime in another person." (Hall, supra, 41 Cal.3d at p. 833.)
By way of contrast, the court allowed evidence of the May 27 and June 28, 2016, robberies as consonant with Hall inasmuch as it posited a specific third party—Faultry—committed the charged offenses. (Hall, supra, 41 Cal.3d at p. 832 [for third party culpability evidence there must be substantial evidence tending to directly connect that person with the charged crime].) At closing, defense counsel argued (1) the uncharged robberies match the modus operandi of the robberies with which Scott is charged; (2) Faultry, not Scott, perpetrated the uncharged robberies; (3) Scott had an alibi for the uncharged robberies; (4) thus Faultry, not Scott, must have perpetrated the charged robberies, and Scott should be acquitted. The similarity between the admitted evidence and the charged crimes shows the trial court understood and properly applied the relevant law.
Scott argued before the trial court and maintains on appeal the prosecution could link him to the May 30, 2016, robbery by modus operandi alone and so the issue is more central to this case than it might otherwise be. We reject this contention because the record reveals the prosecution, during a pretrial hearing, offered to produce independent evidence from various witnesses identifying Scott by voice at each of the charged robberies. This turned out to be so.
Even if the evidence of the five excluded robberies were relevant under Hall, the court also excluded evidence of those robberies under Evidence Code section 352. We will not disturb the trial court's exercise of discretion absent a showing the court exercised its discretion in "an arbitrary, capricious or patently absurd manner." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Here, the court determined it could more than double the expected trial time if Scott were allowed to put on the entirety of his proposed evidence. The court ultimately determined it would "cause the court to have to spend an enormous amount of time" holding five mini-trials for the additional robberies. Finally, the court found the potential risk of confusing the jury, coupled with the minimal probative value, made the proffered evidence excludable under Evidence Code section 352. Scott offers nothing to challenge the court's Evidence Code section 352 ruling, and our review of the record reveals no caprice, absurdity, or arbitrary exercise of the trial court's sound discretion.
Because the trial court properly applied the Hall test, and properly determined the evidence could be excluded under Evidence Code section 352, the court did not abuse its discretion in excluding the evidence of the July 15, July 21, August 4, August 13, and August 22, 2016 robberies.
B
The Flight Instruction
Scott next contends the court erred in instructing the jury with CALCRIM No. 372 regarding flight. Scott asks us to hold a flight instruction is improper when predicated only on a perpetrator leaving the scene of the robbery and where the identity of the defendant is in dispute. We decline the invitation.
As given in this case, the instruction reads, "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
For each of the charged robberies in this case, the People introduced evidence from which the jury could have identified Scott as one of the robbers. In the May 30, 2016 robbery, an employee testified her familiarity with Scott's peculiar mannerisms led her to believe he had been the gunman. Another witness later identified Scott as the gunman based upon the gunman's voice. In the robberies of June 7 and June 27, 2016, witnesses were able to identify Scott. --------
"When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
Where evidence of a defendant's flight "is relied upon as tending to show guilt," the trial court has a sua sponte duty to instruct the jury "substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine." (Pen. Code, § 1127c.) The language of CALCRIM No. 372 properly reflects this statutory mandate. (People v. Price (2017) 8 Cal.App.5th 409, 458.)
Even where the defendant contests identity, a court may give a flight instruction because "such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt." (People v. Mason (1991) 52 Cal.3d 909, 943 (Mason); see People v. Roberts (1992) 2 Cal.4th 271, 310 (Roberts) [approving a flight instruction where there was "evidence that defendant fled up the stairs from the first to the third floor [of a building] after stabbing [the victim]."].)
Scott asks us to disregard Mason and to hold flight instructions proper only where identity goes uncontested at trial. We cannot do so because the Supreme Court's decision in Mason binds us on this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, the evidence before the trial court supported an instruction on the defendant's flight.
Although "[m]erely being at the scene and leaving" will not justify a flight instruction—because "[a] person who does only that may be unaware that a crime has occurred, or may leave for reasons other than to avoid observation and arrest"—a court should instruct on flight where the defendant left the scene with " ' "a purpose to avoid being observed or arrested." ' " (People v. Boyce (2014) 59 Cal.4th 672, 690 (Boyce).)
In Boyce, the defendant committed a series of armed robberies, during one of which he murdered a sheriff's deputy. (Boyce, supra, 59 Cal.4th at pp. 680-681.) The court ruled a flight instruction was proper because "[d]efendant and his partner entered both businesses armed with guns, abused and threatened victims, stole from them and then left." "They hid the handguns and stolen items in their car. These factors [were] more than sufficient to support an inference that defendant left the scene to avoid apprehension." (Id. at p. 690.) In People v. Jurado (2006) 38 Cal.4th 72, 126 the defendant "walked a half-mile" to a store to find a phone—instead of using a nearby police call box to get help with a broken down car—and hid his murder weapon along the way. (Ibid.) The Supreme Court concluded a flight instruction was properly given because "the circumstances of defendant's departure from the [crime] scene ... support an inference that his purpose was to avoid being observed or arrested, and thus an inference of consciousness of guilt." (Ibid.)
The court here gave the flight instruction stating the robbers, regardless of their identity, left "the scene quickly" after committing the three charged robberies. Each of the charged robberies required only about two minutes. As in Boyce, supra, 59 Cal.4th at page 690, the evidence showed the robbers entered the stores, abused and stole from the victims, and then left. Scott attempted to conceal his identity with a black ski mask and by changing the tone of his voice. He confiscated victims' cell phones to prevent them from calling police. At one robbery, the evidence showed Scott used his knowledge as a former employee to plan a quick, undetected getaway through a little-known back entrance to the store. After fleeing out the back door, cell phone tower evidence showed Scott's phone moving away from the location of the robbery and back towards his residence. Taken together, the evidence is "more than sufficient to support an inference that defendant left the scene to avoid apprehension" (Boyce, at p. 690) and acted with a purpose to "avoid observation and arrest." (Jurado, supra, 38 Cal.4th at p. 126.) From that inference, the jury could further infer the robbers acted with consciousness of their guilt.
Finally, we reject any implied due process challenges to the flight instruction given in this case. The Supreme Court has repeatedly rejected the argument flight instructions compel a finding of guilt or otherwise impermissibly lower the prosecution's burden of proof. (See, e.g., People v. Johnson (2015) 61 Cal.4th 734, 774; People v. Loker (2008) 44 Cal.4th 691, 705-706; People v. Mendoza (2000) 24 Cal.4th 130, 180-181.) Following the Supreme Court's lead, intermediate appellate courts have upheld flight instructions over due process arguments where the evidence shows only flight from the scene of a crime. (See, e.g., People v. Price (2017) 8 Cal.App.5th 409, 454-458; People v. Paysinger (2009) 174 Cal.App.4th 26, 28; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1159.) The flight instruction does not assume the truth of the question it permits the jury to answer, and thus does not abridge Scott's due process rights in this case. Because there was no impermissible inference the jury might have made, we find no error in the trial court's instruction.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: NARES, J. AARON, J.