Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC055718
Haerle, J.
I. INTRODUCTION
Defendant and appellant Nathan Seastrunk was convicted of two counts of first degree robbery (Pen. Code, § 212.5, subd. (a)), one count of first degree burglary of a home (§ 460, subd. (a)), and was found to have personally used a firearm in the commission of these offenses. (§ 12022.53, subd. (b).
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, he contends: (1) the trial court erred in denying his motion to suppress evidence that resulted from the detention and search of the van in which he was riding shortly after the crime took place; (2) the trial court violated his due process rights by denying a request to exclude a witness’s out of court statements Seastrunk contends were involuntary and unreliable; (3) the trial court erred in determining that a witness could not invoke his Fifth Amendment right against compelled self-incrimination; (4) the trial court erred in allowing the testimony of a district attorney regarding the dismissal of a juvenile petition; (5) the prosecutor committed misconduct during closing argument by misstating the burden of proof and misrepresenting the facts; (6) defense counsel was ineffective in failing to object to the People’s arguments regarding the burden of proof; (7) the trial court erred in admitting certain booking and property sheets; (8) the cumulative impact of these errors requires reversal.
We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Angela Asoau, who lived on Fleetwood Drive in San Bruno with her boyfriend Aaron Rodrigues, testified that on January 6, 2004, when she stepped out of the kitchen where she was baking cookies, a stranger appeared in the hallway in front of her. Asoau described this man as African-American and wearing “a beanie . . . like a mask, and he had dark clothes on, and he had a gun.” The mask was around his mouth. Asoau identified a black handgun that the People showed her as “possibly” looking like the black gun she saw that night in the man’s hands. The man grabbed her by the neck, put the gun against her cheek and tried to put her into the bathroom. Asoau’s dog jumped on top of them, and the man pushed her into the bathroom. He stood outside the door, pointing the gun at her from about a foot away.
The man asked her who was in the house. Asoau told him that Rodrigues’s sister, brother and daughter were all in the house. At the time, Rodrigues was in the bedroom, with the door closed. Emma, Rodrigues’s daughter, was in bed in that room, although she was not yet asleep according to Asoau. About thirty seconds after Asoau was pushed into the bathroom, Rodrigues came out of his bedroom and into the hallway. The man asked them both where the money was. Asoau told the man it was in the bedroom. Rodrigues was very upset and told the man firmly to hurry because his daughter was in the bedroom.
Asoau could hear drawers opening and shutting in the bedroom. Around that time, Asoau heard their friend Danny knocking at the front door. The first robber was pacing back and forth in front of the bathroom when the knock occurred. About ten seconds later, a second man, who had apparently been in Rodrigues’s bedroom came out of that room. The two men went down some steps that led away from Rodrigues’s bedroom.
The man who was in Rodrigues’s bedroom was short and had dreadlocks. Asoau did not see his face, but simply the back of him. She saw him for three or four seconds. He was wearing a jacket and pants. She thought the jacket was “maybe tan or maybe a mustard color” but she wasn’t sure. She believed both men had dreadlocks.
After the two men went down the stairs, Asoau ran to the room where Rodrigues’s sister Rebecca was sleeping. She pounded on her door and told her to call the police. Rodrigues and his friend Danny ran outside the house, and got into Rodrigues’s car. Asoau saw a van in the middle of the street. Its door was closing. She did not remember the color of van accurately, but thought it was “maybe gray.”
When she got back into the house, Asoau got the telephone from Rebecca and spoke to the police. An officer arrived at the house a short time later. He told her that “they had caught them on Skyline.” She agreed to accompany him to the scene to identify the men.
When they arrived at the van, the officer flashed a light on the men standing outside the van and asked her if she recognized the van and any of the men who were standing outside. Asoau did recognize the van as the same van she had seen after the two men left her house.
She was asked to look at four men. She identified a man named Brooks as one of the robbers. She also knew Melvin Dandridge and Michael G. Michael G., who is Samoan, is her 16-year old cousin. She did not remember what Michael G. was wearing that night nor what his hair looked like. She would see Michael G. “two to three times every other week.”
At first, she didn’t tell anyone that she knew Michael G. She was “really hurt” when she saw him and Melvin Dandridge. Melvin Dandridge is her cousin Kathleen’s husband, and was someone she saw “all the time.” She didn’t speak up when she saw them because “I just was so flushed and so much pain and, like, I just couldn’t believe it.”
She also recognized the fourth man at the side of the road. At trial, she identified Seastrunk as that man. She knew Seastrunk because he is Melvin Dandridge’s brother. She had only seen Seastrunk a few times before January 6. She was surprised to see him at the side of the road and was not sure if she told the police that she recognized him.
Asoau knew there was marijuana in the house immediately before the robbery. She testified that Rodrigues “smokes weed and he usually has some.” Although he would give his friends marijuana, he was not a drug dealer. She had, however, seen him sell marijuana to his friends. The amount she had seen him sell was “never that large.” She does not smoke marijuana. She had money in the bedroom in a safe on the top closet. There was about $500 in the safe that she got from working at Chuck E. Cheese. She was saving the money. After the men left she looked in the safe and the money was no longer there. Also missing was some jewelry.
She identified two rings as belonging to herself and Rodrigues. She also identified a wig as being similar to the hair worn by the second robber, the one in the bedroom.
Seastrunk stood up and Asoau identified him in court. She stated that he was almost the same height as the robber who was in Rodrigues’s bedroom. She did not get a good look at this robber, and did not see his face.
Asoau testified at the preliminary hearing that the second suspect was wearing a tan jacket. She also stated that the second person, the one who came out of Aaron Rodrigues’s bedroom, looked “similar to” Michael G.
Asoau testified at the preliminary hearing that she did not think of Michael G. as one of the suspects because she knew him and it did not look like him in the house. She said that because, at the time of the field identification, he wasn’t wearing dreadlocks.
She had described Michael G. as being “short” and agreed he was “about [her] height [five feet four inches] or maybe just a little taller . . . .” She did not believe Melvin Dandridge was involved in the offense because “he’s very tall and the second person was short and the guy that had me was already tall.” She had also said on one occasion that the only thing she could remember about the second suspect was that he was wearing a tan jacket and had dreadlocks. She testified at trial that the two men had “dark colors on and they had masks on.” She considered a tan jacket “sort of” a dark color.
When she was asked to identify the robbers in the in-field lineup, she did not say anything about recognizing Seastrunk. When they first pulled up to the van, she knew that she had seen all four of them. When the officer was taking her back home, she told them that she knew Michael, Melvin and Seastrunk. When she spoke to San Bruno Police Officer John Ponzini about the crime some time later, she told him she couldn’t say whether it was Nathan Seastrunk or Michael G. in the house. She also felt that there was nothing about the man in the bedroom that was inconsistent with Seastrunk’s physical description.
As for her boyfriend, Aaron Rodrigues, Asoau testified that she told Ponzini on January 7, 2004, that she knew Aaron had sold marijuana in the past and she tried to get him to stop. When she was asked at the preliminary hearing whether she knew that Aaron had sold marijuana in the past, she said no because although he smoked marijuana socially and gave it to his friends, “he was not out on the street selling it.” She told Ponzini that half the money Rodrigues had in the safe was possibly made from selling marijuana. At trial, however, she testified that half of the money was not from drug sales.
Michael G. knew Seastrunk through his sister, who is married to Seastrunk’s brother. Asoau is his cousin. Michael G. agreed that he was “not happy” about being a witness and, in his testimony at trial, generally responded either that he did not know or did not remember the events of the night of the robbery, and his subsequent statements about it. He also testified that he is either five feet seven inches or five feet eight inches. He also admitted that he had been involved in another robbery involving a man named Manto, who was hit with a bat, robbed of $800,and sprayed with a fire extinguisher. He plead guilty to that robbery and the attack, although he did not do anything to Manto.
Aaron Rodrigues testified that on January 6, 2004, he lived on Fleetwood Drive in San Bruno. His mother, brother, girlfriend and daughter also lived there. His daughter, Emma, was five at the time.
On the night of January 6, he had two ounces of marijuana in his house. Rodrigues testified that he uses marijuana daily or several times a day and that when he “would have extra, my friends would give me some money, and I would get it all at one time, together.”
On the evening in question, he was in bed with a migraine. His daughter was already sleeping at the time. At about 8:30, he walked to his room from the kitchen. As he was closing the bedroom door, he saw someone walking up the stairs. The person he saw had dreadlocks and was wearing what he thought was dark clothing. The person was African-American. He didn’t get a good view at the time.
The person pushed the bedroom door open as he was closing it and pointed a gun at his chin. The man asked him where the safe was, although Rodrigues thought he looked like he already knew where the safe was. He asked him to open it and Rodrigues did. He was afraid and began to cry. He asked the man not to wake up his daughter.
Rodrigues stated that he knew Seastrunk, whom he’d met through Seastrunk’s brother, Melvin Dandridge, at his house a month or a few weeks earlier. He knew Melvin Dandridge because their daughters played together and because his wife is related to Asoau. Melvin had come over to Rodrigues’s house with his younger brother Marvin. Marvin bought marijuana from Rodrigues on one occasion, a few months before the robbery. Seastrunk had never been in Rodrigues’s house.
Michael G. is Asoau’s cousin. Rodrigues had met him between five and seven times. Michael G. had been in his bedroom before when he’d sold someone marijuana. He also had been present in the bedroom when Rodrigues’s safe was in plain view. Rodrigues had never sold him marijuana.
There was cash and jewelry in the safe. There was between $4,500 and $5,000 in the safe. $500 of this money belonged to Asoau. One thousand dollars of the money belonged to a friend. This money was on a back shelf of the safe in a place out of view and wasn’t stolen in the robbery. Rodrigues, who is five feet nine inches, testified that the top of his head is at the bottom of the safe.
The money in the safe was partly from gambling and partly money he’d saved up from jobs as a waiter. He kept the money in the safe because he got better deals when he paid for things in cash and because he didn’t earn extra money from his savings account. The money wasn’t money he made from selling marijuana.
The safe also contained some gold dollars, Susan B. Anthony coins, two-dollar bills, two rings and a set of hoop earrings.
The man in the room was the same height as Rodrigues. Rodrigues estimated that the person weighed 190 pounds and had a “stocky build.” Michael G. was skinnier than the man in the room. Seastrunk’s height and stature were the same as the robber’s. Rodrigues also saw the second robber, who was in the bathroom. He was taller than the robber in his room, about six feet one inch. He didn’t see his face. He was also wearing dark clothing and a beanie and he had a gun.
While Rodrigues was in the bathroom he heard drawers being opened and closed in his bedroom. A few seconds later, there was a knock on the front door and the two men both ran downstairs.
Rodrigues ran outside and saw a van driving in front of where he was standing. He ran back upstairs, got his keys and tried to follow the car. He didn’t find the van, so he came home. When he arrived there were police officers there.
On January 19, 2004, when he was asked by the police if the suspect in the bedroom could have been Michael G., he talked to the police “about not being able to eliminate him as a suspect . . . .” He also said that the man in the room could have been Melvin Dandridge.
Rodrigues admitted that he had in the past bragged about having a lot of money and a fancy car and that he told the police he thought he was robbed because of that.
When the officers first asked Rodrigues whether he sold marijuana from the house, he lied. After the officer told him he could smell marijuana in his room, Rodrigues said he had an ounce and a half of marijuana in his dresser drawer. He said he did not sell marijuana, however. He later admitted that he made money from selling marijuana.
Regina Espinoza, a juvenile probation officer, interviewed Michael G. on January 7, 2004, while he was in custody in Juvenile Hall about the events of January 6. Michael G. was relaxed but nervous about what was going to happen to him.
Michael G. told her that he had been involved in an armed robbery. He told Espinoza that he was present, but “that he didn’t do anything.” He said “he remained in the van with Melvin.” “He stated that they had discussed the matter in the van. And that at first they were talking about making money.” A man named “Pooh Bear” specifically mentioned robbery. Michael G. said that he was listening to his headphones while the others were talking about the crime. Michael G. told Espinoza “he took off his headphones and asked Melvin what was going on. And had made a comment to Melvin that he should have dropped him off. . . . [¶] He said he didn’t want to be in it, because he had already done it out here before.”
Michael G. told Espinoza he didn’t leave the car because he didn’t think about it. He did not see a gun, but he saw the money.
Espinoza testified that toward the end of the interview, she questioned Michael G.’s honesty. She did not believe everything he said, particularly after he was told their conversation was not confidential and he “started to retract his involvement as to what he heard by saying, I had the headphones on.”
Corporal Guldner, a San Bruno police officer, testified that he went with the prosecutor to San Francisco to interview Michael G. The two men interviewed Michael G. inside the police car. Michael G. was calm and cooperative. Michael G. understood that “his case had already been adjudicated. And the information he was providing was not going to be used against him.”
He was asked who went into the house the night of January 6, 2004. Michael G. responded “Nate and Pooh Bear.” Guldner showed him two photographs and asked him if those were Nate and Pooh Bear. Michael G. identified “Nate” as one of the people in the photographs he was shown. Michael G. told Guldner that Nate and Pooh Bear came back to the car carrying money and marijuana. They both had guns when they left the vehicle. Nate was driving the van when it was stopped by the police.
Bradley Schimek testified that on January 7, 2004, he was a police officer for the City of San Bruno. He was assigned to look for a gun at the location of Skyline and Sneath Lane. Another officer located a gun north of Sneath Lane. He collected the gun as evidence.
Seann Graham, a police officer for the City of San Bruno, testified that he took part in a felony traffic stop on Skyline in response to a call for assistance from Officer Ponzini of the San Bruno police on January 6, 2004. Four suspects exited the van. Officer Graham searched the van and found gold coins, marijuana, and approximately $4,000 in cash. He also located, in the driver’s door, a wallet, two jewelry boxes with earrings, over a thousand dollars cash, and a .38 revolver. He also found a wig inside the van.
Graham filled out a booking sheet for Seastrunk while they were in the holding cell area of the police department. He got Seastrunk’s height from his driver’s license printout. Seastrunk’s height was five feet five inches and his weight was 160. He also filled out a jail property sheet, which listed the clothing he was wearing. It included a tan, orange and white sweatshirt with the word “Rhino” on it.
Daniel Seevers, a police officer for the City of San Bruno, testified that he accompanied Michael G. to the police station interview room on the night of January 6 and filled out a booking sheet. Michael G. was not sure of his height and weight. Seevers had him stand up and estimated Michael G.’s height as being five feet nine inches, based on Seevers’s own height, which was five feet ten inches. He estimated Michael G.’s weight as 150 pounds. Michael G. was wearing dark clothing.
Daryl McCoy, a police officer for the City of San Bruno, testified that he accompanied Ronald Brooks to the police department after his arrest on January 6, 2004. He filled out a booking sheet and a jail property slip for Brooks. He recorded Brooks’s height and weight from his I.D. card, which indicated Brooks was five feet ten and his weight was 160. He did not base this description on his own observations. Brooks was wearing an extra large blue coat.
Timothy Mahon, an officer with the City of San Bruno police department, testified that he responded to a call from a house on Fleetwood on January 6, 2004. He spoke to Asoau, who described being robbed by two men. During his interview with Asoau, she described the first man, the man who pushed her into the bathroom. This man was “a black male, wearing a blue puffy jacket, wearing dreadlocks.” She did not get a good look at the second man, who was in the bedroom, except that he was another Black male also with dreadlocks. After a van answering the description given by Asoau was stopped, Mahon took Asoau to a “show-up,” or in-field identification of the men in the van.
There were four suspects, one of whom was Seastrunk. Asoau identified Ronald Brooks, who was wearing a dark colored jacket and had dreadlocks, as the man who pointed the gun at her in the bathroom. Mahon recalled that Michael G., who was wearing dark clothing, was “average height, five nine, five ten . . . .” Asoau did not identify anyone else.
Seastrunk spoke to his girlfriend, Tia Beckles, twice in the early morning of January 7, 2004, while he was in custody. In the first phone call, after Beckles said she was disappointed in him, Seastrunk said, “I’m here, I’m just gonna, just trying to get my brother outta here.” When Beckles asked him why he committed the robbery, Seastrunk said, “Cuz I was just thinking for myself. . . . Like I, I wasn’t thinking for us.”
In the second telephone call with Beckles, Beckles asked Seastrunk how he could do this to them. Seastrunk replied, “I didn’t mean it. . . . I’m really sorry. . . . I’m sorry to put you through this . . . right now.” Beckles told Seastrunk that the police had caught them red handed. Seastrunk denied this and said, “We ain’t done no harm to none of them.” Seastrunk also said, in response to a statement that he would have to do some time for this offense, “that can’t be worse than what I done and it’s my first offense, man. I’m going to be doing probably some time, but it ain’t going to be all that . . . .” When Beckles said there was a little girl there who was traumatized, Seastrunk replied, “I didn’t see no . . . .”
In a call to Beckles on February 16, 2004, Seastrunk said there was no evidence against him and “the only thing I’m guilty of is technically, um, um the . . . .” Beckles asked him if there was a possibility that the charge could be dropped to petty theft and maybe child endangerment. She asked Seastrunk, “[w]as there even a child there?” Seastrunk responded, “No, no, not that I . . . no I didn’t see one.”
On February 14, 2004, Seastrunk spoke to his mother and complained that his stepbrother, Elijah (Melvin Dandridge) “made a statement against us man . . . . incriminating us man . . . and all that, that was Elijah gun . . . . Cuz he don’t want to do no time, he gonna do some time, he gonna . . . for that gun, man.” He also said to his mother, “we didn’t go over with no guns, man. We went over there to buy some weed from him. . . . ‘Cuz Elijah trying to put that other gun on Pooh Bear, man. That’s his though, man.”
Seastrunk testified on his own behalf. He admitted he was in the gray van that night. He stated that the first time he saw the van was earlier in the day when he ran into his brother Melvin driving it. The people in the van had agreed to meet Aaron Rodrigues at his house to buy some marijuana. They put their money together and went to the house. Seastrunk did not go into the house. He received a call from his girlfriend and stayed in the van to speak with her. The other three men entered the house. A short time later, they ran back to the van and told Seastrunk that they had stolen Rodrigues’s marijuana. Seastrunk stated that he did not see a gun.
Seastrunk stated that he made the statements on the telephone about his brother knowing that they were recorded. He was trying to cover for his brother. By the time he spoke to his mother on the telephone, he was no longer trying to protect his brother. He also admitted that he told Beckles, “Aaron [Rodrigues] wouldn’t give me no deal and I’m like – I’m tired of this mother fucker not wanting to give me no deal, so I ran up in there.” He claimed he incriminated himself because he was trying to cover for his brother.
Seastrunk’s father testified that Seastrunk was close to and protective of his stepbrother, Melvin, who is mildly mentally retarded.
Seastrunk was convicted of two counts of first degree robbery, and the personal use of a firearm on both counts was found true. This timely appeal followed.
III. DISCUSSION
A. Suppression Motion
1. Factual Background
Seastrunk and his co-defendant Brooks filed a motion to suppress under section 1538.5, challenging the stop of the van in which they were riding. At the hearing on this motion, defendants played the tape of the dispatch call to San Bruno Police Department officers. Defendants also played the tape of the 911 call to the dispatcher.
Seastrunk was initially charged jointly with the second robbery suspect, Ronald Brooks. After the court heard the suppression motion of both defendants, the cases were severed for trial.
The 911 dispatcher testified that she received a 911 call on January 6, 2004, at 8:34 in the evening. The call lasted about five or six minutes. During the call, she spoke to two women. The first woman to whom she spoke “said that two black men entered her house with guns. They left in a van, SUV-type, gray -- gray older van.” The dispatcher spoke to this woman for about a minute. The address from which this woman was calling was 2110 Fleetwood Drive.
The dispatcher then spoke to another woman. She described this woman as “afraid. She was hysterical, breathing heavy. Sounded like she had been crying.” The caller’s name was Angela. Angela said that “two black men came into the house. They had handguns. They put her and her boyfriend into the bathroom. She said that they left in a gray van. It was older.”
Angela described the van as “an old van, the kind that could have a ladder. She said that it had a wheel, like, a spare tire, on the back.” Angela told the dispatcher that the van was “heading towards 7-Eleven.”
While the dispatcher was speaking to Angela, a second dispatcher was broadcasting this information to the officers in the field. This information was recorded on a dispatch tape.
The call ended when Sergeant Mahon arrived at Angela’s home. When he did, the dispatcher hung up the phone so the women could speak to the officer.
Officer Ponzini testified that he was on duty on January 6, 2004, and received a dispatch of a robbery that had occurred at 2110 Fleetwood Drive at around 8:34 in the evening. He began to drive in the direction of the address and “saw a gray older model van traveling westbound on Sneath Lane.”
He had been dispatched “with regards to a gray van” and also understood from the dispatcher “[t]hat the suspects had left the scene in a vehicle matching that description.” He spotted the van about two minutes after he received the dispatch and about half a mile from the scene of the robbery. The van was traveling away from the scene of the robbery. This location was consistent with information he received from the dispatcher about the van’s direction of travel.
The officer made a u-turn and followed the van. He got the license number of the van and relayed that information to dispatch. This call was made at 8:37 p.m. He followed the van for a minute or two. As he did so, he “could only see silhouettes through the -- the partially obscured rear window.” The rear window “was covered by -- almost looked like a foil substance. But it was a little transparent. So, you could see somewhat inside of the vehicle.” Inside the vehicle were “at least two” people. The officer pulled the van over, making a “felony traffic stop.”
The total amount of time between the first dispatch and the activation of his red lights was about six minutes. When he turned on his red lights, the van began to rock back and forth quite a bit, something the officer found unusual.
As soon as the other units were in position, the occupants were ordered out of the van. Officer Ponzini conducted a cursory search of the van for weapons and found one. Angela Asoau was brought to the van about five minutes later and identified the van as the one she had seen leaving the site. She also identified Brooks as the man who held a gun to her outside the bathroom, but did not identify any of the other men.
The four men were arrested and a search of the van revealed Rodrigues’s money, coins, marijuana and wallet. The officers also found a dreadlock wig and a handgun.
The trial court denied the section 1538.5 motion, finding that the conduct of the officers was appropriate, and the stop supported. The court also ruled that the search and arrests were appropriate.
2. The Trial Court’s Ruling Was Correct
On appeal, Seastrunk contends there was not reasonable suspicion to stop the van because it did not match the description he received from the dispatcher. We disagree.
In general, Seastrunk bore the burden of establishing that the stop of the van violated his Fourth Amendment rights. (People v. Martins (1991) 228 Cal.App.3d 1632, 1636.) The trial court acts as the fact finder and we defer to these factual findings as long as they are supported by substantial evidence. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) On appeal, we review these facts to determine whether the officers’ actions comply with the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
In order to justify an investigative detention, such as the one that occurred here, there must be “specific, articulable facts” that would lead an officer to suspect that some activity relating to a crime is occurring or is about to occur and that the person the officer intends to detain is involved in that activity. The officer, therefore, must have a reasonable suspicion that criminal activity is involved in order to justify a temporary stop or detention. (People v. Souza (1994) 9 Cal.4th 224, 230; Terry v. Ohio (1968) 392 U.S. 1, 22.) Because there is no “neat set of legal rules” (Illinois v. Gates (1983) 462 U.S. 213, 232) that will lead to the conclusion that a stop was justified, we must consider “‘the totality of the circumstances -- the whole picture . . . .’” (Alabama v. White (1990) 496 U.S. 325, 330) in evaluating the constitutionality of the stop.
Here, the trial court properly concluded that the stop was justified because Ponzini had a reasonable suspicion that the passengers of the van were involved in criminal activity. Specifically, the dispatch call Ponzini received informed him that a crime had been committed two minutes before the dispatch, and that at least two Black males were involved. He knew that the suspects had left the crime scene in an older gray van and that the van was headed in the direction of Sneath Lane.
The van Ponzini pulled over was headed in the direction of Sneath Lane, not more than 7/10 of a mile from the crime scene and two minutes after the dispatch call took place. Ponzini observed at least two people in the van. He saw only two other cars traveling in the same direction as the van.
Ponzini’s actions were justified by these specific, articulable facts. Ponzini’s conclusion that the van he saw was quite possibly the van that had been observed leaving the crime scene was not a hunch, but a reasonable suspicion.
Seastrunk, however, argues the stop was unlawful because the description of the van the officers received from the dispatcher differs from the van’s actual appearance. In making this argument, he ignores two important principles.
First, it is well established that the police need not have an exact description of a vehicle in order to make a constitutionally appropriate stop. In People v. Jones (1981) 126 Cal.App.3d 308, 314, the court held that, in establishing probable cause by matching the victim’s description of a vehicle to the vehicle that was stopped, “[t]he description need not match the vehicle in every detail.” As the court explained in People v. Smith (1970) 4 Cal.App.3d 41, 48-49, “Crime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field. It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties.”
Second, we look at the totality of circumstances under which the stop took place in order to determine whether it was reasonable. The totality of circumstances includes all information available to the police. Here, the stop was based on more than a physical description of the van. The officers were also aware of the location of the robbery from which the van was proceeding, the direction in which it was headed, and the time it had departed from the crime scene.
Applying these principles, we conclude substantial evidence supports the trial court’s conclusion that the stop was justified. First, there was “adequate conformity between description and fact” with regard to the van. The information available to the officers was that the van was an older gray van, the type that has a ladder up the back. The van they stopped was in fact an older “blue-grey” van. Second, the totality of the circumstances under which the van was stopped included additional information upon which the officers could reach a reasonable conclusion of criminal activity. Specifically, the van was proceeding in the general direction the victim had said it would be going, and it was observed a few minutes after the robbery in about the distance it could have been expected to travel during that time.
Our conclusion is supported by the case law. For example, in People v. Bittaker (1989) 48 Cal.3d 1046, 1076, the court upheld a stop in which the police stopped a silver van that had been described as light blue. And in People v. Flores (1974) 12 Cal.3d 85, officers had a four-day old description of a “dark colored fastback General Motors sedan” from the 1940’s. The officers stopped a 1947 Pontiac and the court upheld the stop, pointing out that the age of the car alone was a sufficiently specific description of the vehicle to provide the officers reasonable suspicion to make the stop.
The cases to the contrary cited by Seastrunk, People v. Conway (1994) 25 Cal.App.4th 385 and People v. Anthony (1970) 7 Cal.App.3d 751, are inapposite. The stops the court invalidated in those cases involved vehicles that were stopped by officers who had no description of the vehicle involved. That is not the case here. Nor does Seastrunk’s reliance on People v. Ramirez ( 1996) 41 Cal.App.4th 1608, and People v. Huff (1978) 83 Cal.App.3d 549, convince us otherwise. Although in each of those cases the officers stopped cars, the descriptions of which precisely matched the information they had received, there is no requirement that this need be the case in every instance. Finally, Williams v. Superior Court (1985) 168 Cal.App.3d 349involved a stop which occurred a considerable amount of time after the crime occurred (one week) and the person stopped did not resemble the person described by the victims.
B. Michael G.’s Out-of Court Statement
At trial, the court admitted into evidence testimony concerning an out-of-court statement made to a probation officer by Michael G., a juvenile who was present in the van at the time it was stopped. In this statement, Michael G. implicated Seastrunk as the robber. Defendant argues that his due process rights were violated because the trial court denied his motion to exclude this statement and also similar statements he later made to police officers on the ground that these statements were involuntary and unreliable.
A defendant who moves to exclude a third party statement on the ground of coercion has the burden of showing that the statement was the product of unlawful coercion.Should the defendant meet this burden, the evidence must be excluded because it is “inherently unreliable.” (People v. Lee (2002) 95 Cal.App.4th 772, 788.)
On appeal, we independently review the trial court’s findings regarding the voluntariness of the confession, giving “great weight to [its] considered conclusions.” (People v. Whitson (1998) 17 Cal.4th 229, 248.) We accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (Ibid.) No single factor is dispositive in determining voluntariness. Rather, we consider the totality of the circumstances. (People v. Williams (1997) 16 Cal.4th 635, 660-661.)
There is little dispute about the conditions under which Michael G. made his statement to his parole officer regarding the events of the night of the robbery. The parole officer, Regina Espinoza, testified that Michael G. had been detained regarding “an alleged strong armed robbery.” She interviewed Michael G. on January 7, 2004. The interview took place in a private kitchen area of Juvenile Hall. She interviewed him because she was preparing a detention memorandum to present to the court when Michael G. appeared at his detention hearing. At the interview, she read Michael G. his Miranda rights. She was aware that he had invoked his Miranda rights earlier, when he was arrested. However, as a matter of protocol, she went over the Miranda rights and asked him if he “still want[ed] to make a statement . . . .” She told him “he can make a statement or not. I asked him if he wanted to tell me what happened. And he did. He gave a statement.”
She did not make any threats or tell him he had to talk to her. She did not make any promises to him or tell him that things would go better for him if he gave a statement. Other than reading Michael G. his Miranda rights and asking him if he wanted to make a statement, she told him she was preparing a detention memorandum for court the following day. She explained to him that the purpose of a detention report is to recommend whether or not a person who had been detained could be freed. When she interviewed Michael G., they were the only people in the room.
Michael G. also testified about the conditions of this interview. He stated that, within a day or two of being arrested, he was interviewed by Espinoza. Just before the interview, he had been asleep for about half an hour. Staff at the juvenile facility took him to a kitchen, where he spoke to Espinoza. He did not think that, by speaking to her, he would be freed. He told her he was scared and the answers he gave her, he gave her because he was scared. The interview did not take more than half an hour. He could not recall why he was scared. He also recalled being interviewed, in a car, by a deputy district attorney and a police officer. In this interview, he did not feel afraid and he told the truth.
Seastrunk argues that Michael G.’s statement to the probation officer was coerced because (a) he was asleep when he made the statements and (b) he was afraid. Seastrunk also argues that, because the interview was conducted for the purpose of a detention report, his statement was made for the purpose of being permitted to go free. He also challenges Michael G.’s statements to the police officer and the deputy district attorney as similarly coerced.
The trial court found that there was no evidence that Michael G. made either of the statements because he thought he would going to go free or because he had been threatened or forced to say anything. In reaching this conclusion, the court pointed out “that someone might be sleepy or scared doesn’t equate to coercion.” As for the argument that Espinoza had subverted Michael G.’s Miranda rights, the court stated that Espinoza “quite matter of factly said, you know, read him his rights. Said do you want to make a statement. There is no coercion in that regard.” Similarly, with regard to the statement Michael G. made to the police officer and the deputy district attorney, the court found no evidence of coercion.
Having reviewed the totality of the circumstances under which Michael G. made his statement, we conclude that the trial court did not err in denying Seastrunk’s motion to suppress Michael G.’s statements. Neither Michael G. nor Espinoza testified that any element of coercion was present in either the kitchen or the car when Michael G. spoke about this crime.
Further, it is simply not the case, as Seastrunk suggests, that explaining to Michael G. the purpose of a detention report amounts to a promise of benefit or leniency (a promise which may render a statement involuntary and inadmissible.) (People v. Carr (1972) 8 Cal.3d 287, 296.) And the case on which defendant relies, In re Shawn D. (1993) 20 Cal.App.4th 200, involves facts that are not comparable to these. The sixteen year old who was interrogated in that case was subjected to three hours of questioning in which he was repeatedly lied to about the possibility of being tried as an adult and sent to San Quentin. Moreover, the interrogator in that case impermissibly promised the defendant that he would be treated more leniently if he confessed, something that did not occur here. (Id. at pp. 207, 214.) The trial court did not err in finding the statements to Espinoza and later to the deputy district attorney and police officer were voluntary.
C. Michael G.’s Fifth Amendment Privilege
Before trial, the court and Michael G.’s attorney concluded that he had no legitimate Fifth Amendment claim that would prevent Michael G. from testifying at Seastrunk’s trial. Michael G. did not invoke his Fifth Amendment rights, therefore, because he concluded he faced no potential jeopardy for testifying about the events that formed the basis of the prosecution in Seastrunk’s trial.
Michael G. testified at trial regarding the events he had witnessed on January 6, 2004. Seastrunk now argues that the trial court erred in finding that Michael G. did not have a Fifth Amendment privilege against self-incrimination
Seastrunk, however, does not have standing to raise Michael G.’s Fifth Amendment claim. In People v. Douglas (1990) 50 Cal.3d 468, 501, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, our Supreme Court held that a defendant who argued that a witness’s testimony should have been excluded on Fifth Amendment grounds, “lacks standing to object to any perceived violation of [the witness’s] privilege against self-incrimination. That right is personal, and may not be vicariously asserted by another.” Here, as in Douglas, no such personal right has been invoked and Seastrunk may not assert it vicariously.
Defendant’s citation to People v. Seijas (2005) 36 Cal.4th 291, is of no assistance. In Seijas, a case that contains a thorough description of the way in which the Fifth Amendment operates, the witness invoked the privilege; here he did not.
Nor is People v. Shipe (1975) 49 Cal.App.3d 343, 349-350, apposite. In Shipe, as in Seijas, the witness invoked the privilege. In Shipe, the court ruled that no such privilege existed . Nevertheless, the witness refused to testify. The prosecution asked a series of highly prejudicial, leading “isn’t it true” questions which, the Shipe court ruled, violated the defendant’s rights to cross-examination under the confrontation clause. Here, Michael G. did not refuse to testify, and the defendant was not denied the opportunity to cross-examine him. As the People point out, in People v. Perez (2000) 82 Cal.App.4th 760, when a witness is “‘present at trial and subject to unrestricted cross-examination,’ ‘the traditional protections of the oath, cross-examination and the opportunity for the jury to observe the witness’s demeanor satisfy the constitutional requirements.’” (Id. at pp. 765-766.) “‘The Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”’” (Id. at p. 765.)
Nor is Crawford v. Washington (2004) 541 U.S. 36 (Crawford) applicable. In Crawford, the court’s concern is with the Confrontation Clause issues implicated by the admission of hearsay evidence admitted in lieu of live testimony. Here, of course, Michael G. testified.
Finally, to the extent that defendant is suggesting that because Michael G. answered “I don’t remember” or “no” to many of the questions asked of him at the trial he somehow was asserting a Fifth Amendment right not to testify, we reject that argument. We know of no authority for the proposition that this right can be invoked through such testimony, nor has defendant provide us with any.
Accordingly, we reject Seastrunk’s claim.
D. Testimony of District Attorney Thomas
Seastrunk argues that the trial court erred in permitting deputy district attorney Eddie Thomas to testify about the conditions under which a juvenile petition against Michael G. was dismissed. We disagree.
In addition to his involvement in the Rodrigues robbery in San Bruno, Michael G. was involved in a robbery in San Francisco some months earlier. The victim in that case was named Manto. After Michael G. testified on direct, Seastrunk’s counsel asked him, “[d]o you remember that at the time that you admitted to having robbed Max Manto on September 2003, that at the time you went to court, you had two cases pending for robbery, one which included this case; do you remember that?” Michael G. responded that he did not remember that. He was then asked, “And as part of the plea bargain, the District Attorney’s Office gave you a break and dismissed the case against you involving th[is] set of facts, correct?” Michael G. responded, “Yes.”
After this testimony, the People proposed calling deputy district attorney Eddie Thomas, to permit him to testify that he recommended the petition against Michael G. be dismissed because there was insufficient evidence to prosecute him. Seastrunk objected on the ground that Thomas’s testimony was not relevant. The People argued that Thomas’s testimony was necessary in order “to show he [Michael G.] wasn’t given a deal for his testimony. In other words, this case was dismissed, he plead to the other robbery. At the time that happened, there was no deal for Michael G[.] to testify.” The People explained that they anticipated Seastrunk would argue in closing that Michael G. “got a great deal, his case was dismissed and of course he wants to cooperate” and, therefore, from the People’s point of view “it’s essential the jury knows our office did not feel there was sufficient evidence to prove the case.” The court permitted Thomas to testify.
Thomas, a 27-year veteran of the San Mateo County District attorney’s office and the head of that office’s juvenile branch, testified that one of his duties was to “review all the petitions that are filed to determine what offer, if any, will be made.” (A petition is the “equivalent of an adult complaint or charging instrument.”) Thomas reviewed Michael G.’s petition in order to determine whether their office would make a plea offer. At the time of his review, Michael G. had two petitions pending against him. One had to do with his involvement in this case, which the parties referred to as the “San Bruno case.” The other had to do with an robbery in San Francisco that occurred several months before the San Bruno robbery and involved a victim named Manto.
In the Manto robbery, Thomas recommended that Michael G. be offered the chance to plead to a felony offense robbery charge under section 212.5. The charges in the San Bruno robbery were dismissed. He was asked to explain the reason the charges for the dismissal were dismissed and he responded, “insufficient evidence.” He stated that at the time the case was dismissed for insufficient evidence, no one from either the police or the District Attorney’s office contacted him, “asking that Michael G. receive any kind of consideration in return for his testimony in the San Bruno case.” He did not give Michael G. “any kind of deal in consideration for testimony in the San Bruno case.” In contrast, in the Manto case, Michael G. agreed “to give truthful testimony if we pursued the other minors” involved in that robbery.
On cross-examination, Thomas testified that he reviewed the San Bruno case in January 2004. The case was dismissed on February 18, 2004. Counsel asked him, “In this case, your opinion was that the Michael G. case was not provable, right?” Thomas agreed. Thomas agreed that, although in January 2004 he considered the San Bruno robbery “an almost impossible case to prove” against Michael G., he waited until February 2004 to dismiss it. On redirect, he explained that the case was filed by another deputy district attorney and “because we deal with a lot of times juveniles who in custody, we have to make some quick decisions based upon what we have. And sometimes later, after having more time to reflect on it and considering everything, it turns out that that wasn’t a very good decision.”
Applying the abuse of discretion standard of review, we conclude the trial court did not err in admitting Thomas’s testimony about the conditions under which the petition filed against Michael G. was dismissed and, specifically, whether there was a plea agreement in exchange for the dismissal of those charges.
Thomas’s testimony was not, as Seastrunk argues, irrelevant. It is well established that when a witness enters into a plea bargain, that fact bears on the witness’s credibility. This information must be disclosed to “ensure that the jury has a complete picture of the factors affecting the witness’s credibility.” (People v. Phillips (1985) 41 Cal.3d 29, 47.) The issue of whether Michael G. had entered into a plea bargain was initially raised by Seastrunk’s counsel on cross-examination of Michael G., when the former inquired into whether Michael G.’s testimony in the San Bruno case had been secured as part of a plea agreement. This cross-examination elicited the response that Michael G.’s testimony had been secured in exchange for the dismissal of the San Bruno case. Thomas’s testimony -- that the case was dismissed because it could not be proven, rather than as the result of a plea -- refuted the suggestion that Michael G.’s testimony was somehow influenced by or the result of a plea agreement.
On cross-examination, Michael G. responded “yes” to this question: “And as part of the plea bargain, the District Attorney’s Office gave you a break and dismissed the case against you involving these set of facts . . . .”
Seastrunk, however, argues that Thomas’s testimony was irrelevant because Thomas testified “unequivocally that the agreement was that Michael would plead guilty to the San Francisco robbery and that, as a result, Thomas would dismiss the San Bruno robbery.” He contends that, because there was no dispute about the context in which the petition against Michael G. was dismissed, Thomas’s testimony should not have been admitted.
Seastrunk’s view of the evidence is inaccurate. In pretrial hearings, Thomas was asked, “You waited until both cases were adjudicated together on a pretrial conference of some sort, and then you made it part of the plea, that if he were -- if he were to plead guilty to the San Francisco case, you would dismiss the robbery case in this county, right?” Thomas replied, “yes,” to this question, a question which asked (1) whether Thomas waited until both cases were adjudicated together before disposing of them through plea bargaining, and (2) whether the plea also included a dismissal of the San Bruno robbery. Thomas also made other statements about his reason for dismissing the San Bruno robbery which indicated that the robbery was not dismissed in exchange for Michael G.’s plea in the San Francisco robbery. For example, Thomas testified that the decision to dismiss the San Bruno charges was the result of his determination that he could not prove the case against Michael. Further evidence at trial regarding the conditions under which the petition against Michael G. in this matter was dismissed was, therefore, relevant to the question of whether that dismissal was the result of an agreement on Michael G.’s part to testify at Seastrunk’s trial.
Indeed, at trial, Michael G. testified that, “as part of [a] plea bargain, the District Attorney’s Office gave [him] a break and dismissed the case against [him] involving th[is] set of facts . . . .” Thomas’s testimony contradicted Michael G.’s statement that he understood he had been given a “break” when the case against him was dismissed. In fact, according to Thomas, he recommended the case be dismissed not as part of a larger agreement, but simply because it was a very difficult case to prove.
Citing Evidence Code section 801, Seastrunk also argues that Thomas’s testimony was irrelevant because it was an improper opinion on a matter entirely within the jury’s function to determine, namely an opinion regarding whether a crime has been committed or a party’s guilt or innocence. (People v. Brown (1981) 116 Cal.App.3d 820, 829.) We need not consider whether this general rule applies to a third party’s guilt or innocence because Thomas did not testify as to Michael G.’s guilt. He testified that the reason the case against Michael G. was dismissed was because -- in his opinion -- it was difficult to prove. An opinion regarding the difficulty of prosecuting a crime because of a difficulty of proof is not the same as an opinion that someone is guilty or innocent of a crime.
Evidence Code section 801 provides that “expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (People v. Gardeley (1996) 14 Cal.4th 605, 617.)
Finally, Seastrunk argues that Thomas’s testimony amounted to improper prosecutorial vouching for the witness’s truthfulness. (See People v. Frye (1998) 18 Cal.4th 894, 971.) A prosecutor may not place the government’s prestige behind a witness by personally assuring a witness’s veracity, or by suggesting that information not presented to the jury supports the witness’s testimony. Nor may a prosecutor argue that he or she has superior knowledge of sources not available to the jury. (People v. Williams (1997) 16 Cal.4th 153, 257.)
In Williams, the prosecutor stated that the defendant “cut a deal” in which he agreed to testify “truthfully and honestly” in return for being allowed to plead guilty to robbery on charges pending against him. (People v. Williams, supra,16 Cal.4that p. 256.) The court held that a prosecutor does not commit misconduct when he or she accurately recounts the nature of the People’s agreement with a witness in order to help the jury evaluate the witness’s credibility. (Id. at pp. 256-257; see also People v Frye, supra, 18 Cal.4th 894 [no improper vouching where prosecutor read to jury text of immunity agreement between witness and the People].) So long as the statement is based on evidence in the record, a prosecutor may describe the terms of a witness’s deal, including a witness’s agreement to testify truthfully and honestly. Improper vouching, in contrast, “usually involves an attempt to bolster a witness by references to facts outside the record.” (People v. Medina (1995) 11 Cal.4th 694, 757.)
Even assuming that a statement that originates not from the prosecutor in the case, but from a witness under oath, can constituted improper prosecutorial vouching, Thomas’s testimony was nothing of the kind. Thomas gave evidence regarding the context in which Michael G.’s case was dismissed. He did so on the record and under oath. A prosecutor’s assurances regarding a prosecution witness's apparent honesty or reliability are not improper vouching so long as they are based on the facts of the record and inferences reasonably drawn from it, rather than purposed personal knowledge or belief. ( People v. Frye, supra, 18 Cal.4th at pp. 970-971.) Here, of course, everything Thomas said about the conditions under which he recommended the dismissal of the petition against Michael G. was on the record and under oath. Nothing to which he testified, therefore, constituted improper prosecutorial vouching.
E. Prosecutorial Misconduct
Seastrunk also argues that the prosecutor committed misconduct in his closing argument by misleading the jury about the facts before it and by relying on facts outside the record to vouch for Michael G. We disagree.
In general, a court will find prosecutorial error either when a prosecutor’s conduct renders a criminal trial fundamentally unfair (see People v. Earp (1999) 20 Cal.4th 826, 858) or when it involves “‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’” (People v. Smithey (1999) 20 Cal.4th 936, 960.) With regard to a prosecutor’s comments to a jury, a reviewing court must ask whether there is a reasonable likelihood that the jury construed or applied the prosecutor’s remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) We do not find error when a prosecutor’s comments amount to a fair comment on the evidence, including inferences that can be reasonably drawn from the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Seastrunk points to several instances in closing argument when the court sustained objections to statements by the prosecutor about Michael G.’s involvement in the San Bruno robbery. At one point, the prosecutor, in discussing aiding and abetting jury instructions, stated “So if Michael G. was simply sitting in the van and not doing anything to encourage or aid the robbers, then he is not guilty, even if he knew.” Defense counsel objected and the court sustained the objection, telling counsel “just limit it to what we have, if you would.” The prosecutor replied, “Okay. I’m not sure what – what I missed.” The prosecutor then said, “[I]f anything I talk about is the evidence and you recall it differently, please rely on our own memories. If I misstate the evidence, I’m not doing it intentionally. But I would submit it would have been very hard to prove Michael G. aided, abetted, assisted the robbers.” Defense counsel again objected, the court sustained the objection and struck the testimony. Nothing further was said on this subject.
These two statements -- both of which were objected to -- do not constitute prosecutorial misconduct. The trial court sustained Seastrunk’s objections to them both. We presume the jury followed the court’s instruction to disregard these statements and no prejudice could have resulted from comments the jury disregarded.
Nor is it the case that the People committed misconduct by misleading the jury about why the charges against Michael G. were dismissed, as Seastrunk argues. The People’s statements about this issue were consistent with Thomas’s testimony that the charges were dismissed because of insufficient evidence and for no other reason, such as an agreement to testify in this case. In summarizing Thomas’s testimony, the People did not improperly vouch for Michael G.
Finally, the defense objected to the prosecutor’s statements regarding the difficulty of proving Michael G.’s guilt on the ground that the prosecutor was referring to facts not in evidence. (“I would submit it would have been very hard to prove Michael G. aided, abetted, assisted the robbers.”) The court sustained this objection and a subsequent objection regarding the same argument and we assume the jury followed the court’s instruction to “strike that out.”
F. Beyond a Reasonable Doubt Statement
At the end of closing argument, the prosecutor stated that “”if reasonable doubt is anything, it’s not, I have to be sure he’s guilty. If a juror was to come back and say, I just wasn’t sure he was guilty, my response perhaps would be, but you don’t have to be sure he’s guilty, you have to be convinced beyond a reasonable doubt he’s guilty. Okay. It’s not the same thing.” The prosecutor also made similar remarks earlier in closing. Seastrunk did not object to these statements and now argues that his lawyer’s failure to do so constituted ineffective assistance of counsel.
We disagree. Any objection to the prosecutor’s discussion of the reasonable doubt standard would have been unavailing because the prosecutor’s statements were not objectionable. (People v. Jones (1979) 96 Cal.App.3d 820, 827.)
In reaching this conclusion, we consider whether there is a reasonable likelihood that the jury construed any of the prosecutor’s remarks about the burden of proof in an objectionable way. (People v. Ayala, supra, 23 Cal.4th at pp. 283-284.) Further, even if the prosecutor’s description of the reasonable doubt standard is misleading, that error can be cured by the court’s proper instructions on reasonable doubt. (People v. Barnett (1988) 17 Cal.4th 1044.)
Here, the prosecutor’s remarks about reasonable doubt were not improper. The comment that being “sure” is not the same as being convinced beyond a reasonable doubt is simply another way of saying that a juror need not be one hundred percent certain of guilt in order to conclude that a charge has been proven beyond a reasonable doubt. Certainly, “beyond a reasonable doubt” does not mean complete certainty.
Similarly, the prosecutor’s admonition that the jury find reasonable doubt based on reason rather than a hunch is not objectionable, and in fact, is an admonition quite similar to the jury instruction that doubt should not be based on “some possible or imaginary doubt.” In addition, the prosecutor made clear that their discussion of the reasonable doubt standard was not to be taken as the only way to understand this concept. In fact, the prosecutor told the jury, “you don’t have to do it this way.”
Neither People v. Garcia (1975) 54 Cal.App.3d 61 nor People v. Johnson (2004) 119 Cal.App.4th 976 suggests a contrary result. In those cases, the trial court gave the jury a substantially expanded, erroneous definition of reasonable doubt. And although, in People v. Hill, supra, 17 Cal.4th at p. 831, the People made a somewhat similar statement to that made here, the court described those comments as “somewhat ambiguous” and referred to the issue’s resolution as “arguable close.” In Hill, however, the court’s finding of prosecutorial misconduct was not based on the reasonable doubt instruction, but on the “onslaught of misconduct” (id. at p. 845) committed by the People in that case. The prosecutor’s behavior during this trial, and in closing argument, does not resemble in the least the egregious pattern of misconduct seen in Hill.
G. Admission of Exhibits 27 and 28
Exhibits 27 and 28 are the juvenile booking and property sheets for Michael G. Among other things, the booking sheet contained a physical description of Michael G. and the property inventory sheet described the clothing he was wearing immediately after his arrest. Seastrunk now argues that these documents were erroneously admitted because they were not properly authenticated under Evidence Code section 1280 and because they constituted testimonial hearsay. (Crawford, supra, 541 U.S. at pp. 51-52.) We conclude that even if these two documents were erroneously admitted, they contain no information that is not already in the record and, moreover, were not crucial to identifying the men who robbed Rodrigues. Therefore, no prejudice can be shown under any applicable standard.
The booking sheet described Michael G. as five feet nine inches tall. Michael G. himself testified that he was five feet seven inches or five feet eight inches. Sergeant Mahon, who arrested Michael G., testified that he was five feet nine inches or five feet ten inches. The information in the booking sheet did not prejudice Seastrunk because the descriptions of Michael G.’s height already in evidence were generally consistent with the information in the booking sheet.
As for the issue of clothing, Seastrunk contends that the inventory sheet established that Michael G. was not wearing a jacket when he was arrested and, because there was testimony that the robbers wore jackets, the admission of this testimony was prejudicial. In fact, it was not clear that both robbers wore jackets and therefore the inventory sheet added little to the question of identity. Rodrigues described the robbers simply as men wearing dark clothing. Asoau described them as wearing dark clothes and stated that one of them was wearing a dark tan coat. And, of course, Michael G. might have removed his coat before he was arrested. Given that the issue of whether the robbers were dressed in coats was not determinative in identifying the robbers, the admission of evidence regarding whether Michael G. had a coat with him when he was booked is not prejudicial under any standard.
H. Jury Selection
Seastrunk began jury selection with ten peremptory challenges. During jury selection, Seastrunk unsuccessfully challenged eight jurors for cause and used four of his peremptory challenges to dismiss some of these eight jurors.
Seastrunk then challenged a juror Mr. C. for cause. His request was denied, and he used his ninth peremptory challenge to dismiss Mr. C. Seastrunk then asked for ten additional peremptory challenges. He stated he was concerned that the jury venire did not contain any African-Americans and asserted that the reason he would not use his final challenge was because both alternatives were unacceptable and had already been unsuccessfully challenged for cause. The court denied this request. Seastrunk did not use his final peremptory challenge.
In supplemental briefing, Seastrunk argues that the trial court abused its discretion in failing to excuse Mr. C. for cause and that this error violated his right to a fair and impartial jury.
Assessing “‘the qualification[s] of jurors challenged for cause are “matters within the wide discretion of the trial court.”’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1146.) The trial court must determine whether the prospective juror will be “unable to faithfully and impartially apply the law in the case.” (Id. at p. 1147.) A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause. The trial court’s resolution of these factual matters is binding on the appellate court if supported by substantial evidence. (Ibid.)
Applying these rules to this case, we conclude the trial court did not abuse its discretion in denying Seastrunk’s for-cause challenge of Mr. C.
On the first day of jury selection, jurors were asked, as a group, whether they had ever been arrested for a criminal offense. Mr. C. did not respond to this question. At the end of the proceedings, the court again asked the seated jurors if any one of them or anyone close to them had been charged with or convicted of a criminal offense. One prospective juror stated that he had a DUI conviction. No one else responded.
The next day, at the very beginning of jury selection, the following colloquy took place between the court and Juror C.: “THE COURT: . . . [¶] What seems to be the issue Mr. C.? [¶] MR. C.: Your Honor, I must apologize. Yesterday I failed to disclose certain information, primarily out of embarrassment. But also due to the fact I didn’t believe the circumstances would inhibit my ability to be a fair and impartial juror. And now I must own up to that, sir. [¶] THE COURT: Own up to what? [¶] MR. C.: That I, in 1986, I was convicted -- [¶] THE COURT: Okay. Go ahead. [¶] MR. C.: -- of a DUI. And over the course of about 20 years, I’ve had my car burglarized twice. And I was the victim of a strong armed robbery once about 18 years ago. [¶] THE COURT: And you didn’t remember any of this? [¶] MR. C.: Sir, I didn’t remember the -- any of the criminal activity against me. I --I -- I apologize, sir. And that’s why I’m owning up to it. I realize that was wrong.”
The trial court asked Mr. C. a few questions about the DUI (which occurred in 1986) and determined that Mr. C. reached a plea agreement with the People. Mr. C. felt that he was treated fairly by the arresting police agency and the court system. Mr. C. also stated that there was nothing about the incident that would affect his ability to be a fair and impartial juror. Mr. C. also answered questions about the strong armed robbery, which occurred 16 years earlier and involved two African-American individuals. He didn’t report the crime to the police department. He stated that he “absolutely (did) not” think this crime would affect his ability to be fair and impartial.
After Mr. C. came forward with this disclosure, another juror disclosed a burglary at his home.
Seastrunk requested that the court excuse Juror C. for cause, along with two other jurors. He stated that Juror C.’s failure to bring up his DUI and the fact that he was the victim of a robbery, particularly in light of another juror’s disclosure of these topics, raised “concerns about his veracity, given this late stage.” Although Seastrunk acknowledged that Mr. C. had in fact disclosed the information, but expressed concern with “the fact that he waited, even though knowing that Mr. J. was in the same situation, and mentioned it to the court yesterday.” The People argued that there was nothing to show that Juror C. was intentionally lying.
The court denied the challenge of Mr. C. The court explained, “It was quite apparent to the Court when he brought this information before us this morning that he was quite embarrassed over the fact that he didn’t do it yesterday, under the circumstances. And there is no question in my mind, under the circumstances, that he can be a fair and impartial juror.”
The trial court’s conclusion that Mr. C. could be a fair and impartial juror is supported by substantial evidence. (People v. Ghent, supra, 43 Cal.3d at p. 768.) Mr. C. expressed regret for not coming forward immediately to disclose his DUI. He also apologized to the court for doing so. When he was asked whether he could be impartial, he unequivocally said he could. Under these circumstances, the trial court’s decision to deny the challenge for cause was within its discretion.
Citing People v. Morris (1991) 53 Cal.3d 152, 183-184, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, footnote 1, Seastrunk argues that Mr. C. concealed information from the court and that this concealment implies bias that justifies disqualification. (See also People v. Nesler (1997) 16 Cal.4th 561, 586; In re Hitchings (1993) 6 Cal.4th 97, 120, People v. Price (1991) 1 Cal.4th 324, 399-401.) This case, however, differs from the cases cited by Seastrunk in one significant respect. In each of the cases cited by Seastrunk, the information withheld by the jurors in question indicated quite clearly that the juror had a bias against the defendant. Here, of course, the information concealed by Mr. C. was personally embarrassing, and had nothing to do with the Seastrunk. The trial court properly concluded that any implication of bias that might have been created by Mr. C.’s withholding of this information was dispelled by the nature of the information and Mr. C.’s candid behavior in coming forward with it.
I. Cumulative Error
Given that we have rejected each of Seastrunk’s claims, we also reject his argument that the cumulative impact of the errors in this trial deprived him of a fundamentally fair trial.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.