Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. SWF003288 F. Paul Dickerson III, Judge.
BENKE, Acting P. J.
The circumstantial evidence in this case demonstrated in a fairly convincing fashion that defendant and appellant Simpson Colton Jay Simpson participated in a jewelry robbery as the driver of the get-a-away car. The evidence showed: Simpson "cased" the jewelry department which was later robbed; prevailed upon a recent acquaintance to rent a car for him; drove the rented car, with two accomplices, to the department store the three were planning to rob; one of the three in fact robbed the jewelry department of the store; and during a high speed chase which ensued Simpson was identified as the driver of the rented get-away-car.
The evidence further showed that after nearly being apprehended in the high speed chase, Simpson parked the rented a car in the parking lot of the apartment complex where his cousin lives and where another cousin picked him up shortly after he had escaped from police. At the time he was picked up by his cousin, Simpson told her he had been the victim of a carjacking. Simpson repeated his carjacking explanation when the woman who had rented the car for him began attempting to contact him so that she could return the car to the rental agency. Several hours after he had allegedly been carjacked, Simpson finally reported the carjacking to police in a telephone call.
On its face there are a number of circumstances which undermine the credibility of Simpson's carjacking story, not the least of which is the fact that he was seen "casing" the store before the robbery and the supposed "carjacker" left the rented car at the very apartment complex where Simpson's cousin picked him up. In addition, Simpson provided varying details about where the carjacker left him.
At trial the carjacking explanation was also undermined by evidence Simpson had participated in a number of other jewelry store robberies, about which he had written in a book manuscript he and a professional writer were developing. In his principal argument on appeal, Simpson contends the trial court abused its discretion in admitting evidence of the prior jewelry store robberies. We find no abuse of discretion. Evidence defendant employed a similar modus operandi in prior similar crimes is admissible to establish his intent and the existence of a common design or scheme. Moreover, even if the trial court abused its discretion in admitting evidence of the prior crimes, Simpson was not prejudiced. Simpson never contested the fact the rented car was used in the robbery, that he was driving the rented car after the robbery, and that the car was found at the apartment complex where his cousin picked him up. Given all those circumstances, it is more likely than not that the jury would have rejected the "carjacker" defense, even in the absence of evidence of the prior robberies.
FACTUAL AND PROCEDURAL SUMMARY
1. Procedural Background
Simpson was charged in an information with robbery (Pen. Code, § 211), evading a police officer (Veh. Code, § 2800.2), vehicle theft (Veh. Code, § 10851, subd. (a)), grand theft of a motor vehicle (§ 487, subd. (d)(1)), commercial burglary (§ 459), and grand theft of personal property (§ 487, subd. (a)). The information further alleged Simpson had two prior prison offenses (§ 667.5 subd. (b)) and eight prior serious felony convictions, all of which qualified as prior "strike" convictions (§ 667, subds. (a), (c), (e)(2), 1170.12, subd. (c)(2)).
All further statutory references are to the Penal Code unless otherwise specified.
Simpson was convicted on the robbery, evading, commercial burglary and grand theft of personal property counts. The jury returned not guilty verdicts on the vehicle theft and grand theft of a motor vehicle counts. In the bifurcated proceeding the trial court found true the prior prison and prior serious felony conviction allegations.
At sentencing the trial court stayed the sentences on the commercial burglary and grand theft counts and imposed an indeterminate sentence of 50 years to life on the robbery and evading counts and a determinate sentence of 42 years on the prior conviction and prior prison term allegations. Simpson filed a timely notice of appeal.
2. Prosecution Case
A. "Casing" the Jewelry Department
At all pertinent times, Esther Nichols was a sales associate in the jewelry department of the Robinsons-May department store at the Promenade Mall in Temecula. On Saturday, March 15, 2003, an African-American male came to the jewelry department of the store and asked about some diamond earrings. The first African-American male was accompanied by two other African-American males and appeared to be in charge of the group. Nichols became nervous when one of the other African-American males approached her while she was putting out some jewelry and she put the jewelry away. One week later, after the robbery which gave rise to Simpson's conviction, Nichols was shown a group of photographs and identified a photograph of Simpson as the first African-American male who had come to the jewelry department on March 15, 2003, and appeared to be in charge of his two companions.
B. Car Rental
On March 17, 2003, two days after being seen at the Robinson's-May jewelry department in Temecula, Simpson came to San Diego to visit Nedima Egbouonyne. Simpson had commenced a relationship with Egbouonyne through an Internet social networking some months earlier. At that time Simpson was living in Culver City. Simpson and Egbouonyne communicated regularly on the Internet, by cell phone, and through a two-way pager Simpson carried. Simpson used two separate cell phone numbers to contact Egbouonyne.
Simpson told Egbouonyne he was in San Diego to do promotional work the following day for some compact discs (CD's). Simpson was driving a black, four-door Mercedes and was accompanied by two other African-American men, who he introduced as "Jay" and "Tony." One of Simpson's companions was wearing a baggy, long-sleeved white shirt, was slim, had short hair and "lighter" skin color; the other companion was wearing a black long-sleeved shirt, was heavier, had very short hair, and was "very dark." At the time of trial, Egbouonyne could not recall which of Simpson's companion's was "Jay" and which was "Tony."
On the evening of the 17th, the four went to a bowling alley and socialized. Egbouonyne drove the group in her car. On the way back to Egbouonyne's home, Simpson told her he needed to rent a car because he did not want to put additional miles on the Mercedes doing the promotional work. Egbouonyne stopped at a Budget car rental office and Simpson initially attempted to pay cash for a rental car. However, the Budget representative told Simpson and Egbouonyne that a credit card was required. Simpson then asked Egbouonyne if she would rent the car with her credit card; Simpson promised he would reimburse her in cash. Egbouonyne agreed and rented a Ford Taurus with license plate number 4WMY349; Simpson was listed as the second driver.
Simpson and his two companions left the rental office in the Taurus and stayed in a hotel in Escondido that evening. Egbouonyne returned to her home where the black Mercedes was parked.
C. Robbery
At approximately noon the following day, a tall, thin, clean-shaven African- American male approached the jewelry counter at Robinsons-May at the Promenade Mall in Temecula. The man was wearing baggy pants and a baggy shirt; he was also wearing a baseball hat and sunglasses and kept his head down. The manager of the jewelry department, Lori Schmidt, approached him as he was looking at a display case which contained about $100,000 in jewelry. Because of his behavior, Schmidt was apprehensive; nonetheless, when he asked to see a pair of $5,660 earrings, Schmidt opened up the case and, as is standard practice, gave him one of the earrings and held on to the other one. Because of her apprehensions, Schmidt took the precaution of relocking the display case. As she was relocking the display case, the man vaulted over the counter and attempted to reopen the display case. Schmidt fled the area in fear. As she was fleeing, Schmidt saw Nichols and told her the store was being robbed. The man continued to attempt to open the display case but was unsuccessful. He then jumped back over the counter and ran from the store with the earring Schmidt had handed him.
A customer observed what was going on in the jewelry department and noticed that another African-American male, in the shoe department, was also watching what was happening. According to the customer, the second African-American male appeared to be talking on a wireless device to someone other than the robber. When the robber started running from the store, the second African-American male began running out of the store as well. The customer followed both men out of the store and saw them get into a light-colored Ford Taurus parked closest to the doors of the department store. One of the men jumped in the rear seat; the other got in the passenger side of the front seat. A third person appeared to be driving the car. The customer could not see a license plate number because the rear license plate was covered with what appeared to be dark-colored plastic.
The customer as well as Schmidt called 9-1-1 and reported the theft. The customer also provided the dispatcher with a description of the Taurus.
C. Chase
Within a few minutes, Riverside County sheriff's deputies in the area were given a description of the Taurus and its occupants. Two of the deputies, Bruce Pierson and Robert Marks, drove to a freeway interchange approximately two miles from the Promenade Mall. Within a few minutes of arriving at the interchange, they spotted a Ford Taurus matching the description provided by the customer heading south on Interstate 15. When the deputies got behind the car, they noticed a black bag attached to the rear license plate frame, partially covering the license plate number. As the deputies were following the Taurus, it sped up and the bag blew off, revealing license plate number 4WMY349.
The deputies activated their overhead lights in an attempt to pull over the Taurus. The Taurus's hazard lights came on and the car pulled across lanes of traffic to the shoulder; the deputies activated their siren and additional lights on their car. The Taurus exited the freeway at a truck scale and stopped. One of the officers, Pierson, got out of the patrol car and the other officer, Marks, attempted to get a shotgun out of its holder between the two front seats of the patrol car. According to Pierson, the driver got out of the Taurus, put his hands up and faced the deputies. Marks was having difficulty getting the shotgun out of the holder and the driver of the Taurus got back in the Taurus and drove back onto the freeway. Marks and Pierson attempted to pursue the Taurus, but because the Taurus reached speeds of 90 miles per hour and the deputies were having difficulty communicating with their dispatcher, they ended the pursuit.
According to Marks, the Taurus had stopped earlier along the off-ramp, and when the patrol car stopped behind the Taurus, it took off again and stopped a second time at the truck scales. Marks did not see the driver get out of the Taurus during the second stop because he was busy trying to get the shotgun out of the holder.
D. Car-Jacking Explanations
A short time after Deputies Marks and Pierson ended their pursuit of the Taurus, one of Simpson's companions from the night before, Jay, called Egbouonyne from one of Simpson's cell phones and told her Simpson had been carjacked by two men while Simpson, Jay, and Tony were at a Del Taco restaurant in Escondido. Jay told Egbouonyne they had reported the incident to police. Egbouonyne called the police herself as well as Budget and reported what she had heard from Jay. Egbouonyne then tried to reach Simpson on his pager. Jay called Egbouonyne back and told her that the police had come and gone; when Egbouonyne told Jay that she had also called the police, Jay spoke briefly to someone who was near him and then told Egbouonyne that she should not tell the police that Simpson's Mercedes was still at her apartment complex.
About an hour after the car chase had ended, Simpson called his cousin Sonja Smith (Sonja) and asked her to come and get him at her brother's apartment complex in Lake Elsinore. Simpson told Sonja that he had been carjacked and that he needed a ride back to San Diego where his car was parked. Shortly thereafter, Sonja picked Simpson up at her brother's apartment complex and took him to Egbouonyne's apartment complex in San Diego. When Sonja picked Simpson up, he was alone.
Later that evening, Simpson arranged for Chris Smith to take one of his companions back to Los Angeles and attempted to get his other companion a ride with another San Diego acquaintance.
During the course of the afternoon and evening, Simpson had a number of text communications and telephone conversations with Egbouonyne in which he explained that the person who carjacked him had forced him out of the car on a freeway near Los Angeles and that his cousin had given him a ride back to his house in Los Angeles. Egbouonyne told Simpson that she had called the police, and at approximately 11:30 p.m. Simpson himself called the Escondido police and told them that he had been carjacked at a Del Taco near Escondido and that eventually he had been forced out of the car near Temecula.
The following day, March 18, Deputies Pierson and Marks met with an investigator, Peter Felt, in the sheriff's department. According to Felt, he showed Pierson and Marks a picture of Simpson reproduced from Simpson's driver's license and told them Simpson was the person who had reported being carjacked. Both Pierson and Marks identified Simpson as the driver of the Taurus they had been pursuing. On March 19 Simpson was stopped at the San Clemente checkpoint where Pierson and Marks confirmed their identification of him as the driver of the Taurus. Simpson was arrested at the checkpoint and his car was impounded.
Marks and Pierson had slightly different recollections of how they identified Simpson as the driver of the Taurus. According to Marks, he and Pierson were instructed to go speak with Felt on the morning of March 18. Marks arrived at Felt's desk first. Felt showed him a photograph of Simpson, whom Marks recognized as the driver of the Taurus he and Pierson had been pursuing. According to Pierson, he and Marks just happened to see Felt at the police station on the morning of March 18 and in talking to Felt about the case noticed the photograph on Felt's desk and immediately recognized Simpson as the driver of the Taurus.
When they searched Simpson's car, the deputies found a manuscript of a book "Inside the Crips." The book described Simpson's life as the member of a gang, including his participation in a number of jewelry store robberies. Inside the car the deputies also found a day planner; in the day planner the deputies found brochures advertising various types of jewelry and a business card from a J.C. Penney store located in the Promenade Mall in Temecula.
A few weeks later, on April 7, 2003, police discovered the Taurus abandoned in the parking lot of the apartment complex where Simpson's cousin lived and where his other cousin picked him up on the day of the robbery.
3. Defense Case
In his defense Simpson called a friend, Valentin Martinez, Jr. Martinez testified that he and Simpson had worked together in the music industry and that on the afternoon of March 17, 2003, he and Simpson were working in a studio in Los Angeles and that later that evening they went to a strip club together. According to Martinez, Simpson did not mention anything about being carjacked.
Ann Pearlman also testified on behalf of Simpson. She is a writer and her agent had referred her to Simpson. For several months she worked with Simpson on a manuscript he had written about his life, including a number of jewelry store robberies. According to Pearlman, the robberies were only a small part of Simpson's life and the last robbery had occurred in 1986 or 1988.
DISCUSSION
I
As we have indicated, in presenting its case the prosecution was permitted to show the jury the cover of Simpson's book "Inside the Crips," which had a picture of Simpson on it as well as the subtitle "Life Inside L.A.'s Most Notorious Gang" and the statement "Documents urban warfare with unflinching intensity." The trial court also permitted the prosecution to read to the jury excerpts from the manuscript in which Simpson describes his participation in a number of jewelry store robberies. On appeal Simpson contends the trial court erred in admitting the book cover and excerpts. We find no error.
The excerpts from the manuscript the trial court permitted the prosecutor to read into the record were as follows:
"Subdivision (a) of section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted (Ewoldt).)
Evidence Code section 1101 states: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
In Ewoldt defendant was charged with committing multiple acts of child molestation on the younger of his two stepdaughters. The trial court admitted evidence defendant had committed similar uncharged offenses on his older stepdaughter. In finding no error in admitting the uncharged offenses, the Supreme Court stated: "In the present case, evidence of defendant's prior misconduct is relevant to prove a material fact other than defendant's criminal disposition, because the similarity between the circumstances of the prior acts and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the uncharged misconduct." (Ewoldt, supra, 7 Cal.4th at p. 393.)
In reaching this conclusion about the admission of defendant's prior acts, the court discussed at some length the three facts which such prior acts may be used to establish: intent, common design or plan, and identity. (Ewoldt, supra, 7 Cal.4th at pp. 393-404.) The court noted that the distinction "between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant. Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 300, p. 238.) For example, in a prosecution for shoplifting in which it was conceded or assumed that defendant left the store without paying for certain merchandise, defendant's uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it.
In addition to intent, common design and plan, and identity, prior acts may also be relevant and admissible to show, among other matters, motive and knowledge. (Ewoldt, supra, 7 Cal.4th at p. 402, fn. 6.)
"Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, '[i]n proving design, the act is still undetermined....' (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 300, p. 238.) For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.
"Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator. For example, in a prosecution for shoplifting in which it was conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense. (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 410, p. 477.)" (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)
In considering whether defendant's prior acts were admissible to show a common design or scheme, the court found it "useful to distinguish the nature and degree of similarity (between uncharged misconduct and the charged offense) required in order to establish a common design or plan, from the degree of similarity necessary to prove intent or identity.
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]
"A greater degree of similarity is required in order to prove the existence of a common design or plan. As noted above, in establishing a common design or plan, evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' [Citation.] '[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.' [Citations.]
"To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]
"The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Ewoldt, supra, 7 Cal.4th at pp. 402-403, fn. omitted.)
The court then concluded the similarity between the uncharged molestation of the older stepdaughter and the charged molestation of the younger stepdaughter established a common scheme or plan such that evidence of the uncharged molestations was admissible. "In the present case, the victims of both the uncharged misconduct and the charged offenses were defendant's stepdaughters, who were residing in defendant's home, and the acts occurred when the victims were of a similar age. On three occasions, defendant molested [the older stepdaughter] at night while she was asleep in her bed. When discovered, defendant asserted he was only 'straightening up the covers.' In two of the charged offenses, defendant molested [the younger stepdaughter] in an almost identical fashion and, when discovered, proffered a similar excuse. On one occasion prior to the commission of the charged offenses, defendant touched either [the younger stepdaughter's] breasts or her vaginal area. This marked the beginning of an ongoing pattern of molesting [the younger stepdaughter]. We conclude, therefore, that evidence of defendant's uncharged misconduct shares sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan. Such evidence is relevant to establish that defendant committed the charged offenses in accordance with that plan." (Ewoldt, supra, 7 Cal.4th at p. 403.)
Here, Simpson contends the jewelry store thefts described in his book were not admissible to show either intent or for any other admissible purpose. We disagree.
Contrary to Simpson's argument, the acts described in his book were similar enough to the theft with which he was charged to prove both intent and a common design or scheme. In particular, we note the number of jewelry store thefts described in the book, their location in shopping malls, the fact that he used accomplices in the thefts, and the preparation he took in casing the stores before robbing them. As the People point out, each of these circumstances was remarkably similar to the manner in which the charged robbery of the jewelry department of Robinson's-May at the Promenade Mall was accomplished. As in Ewoldt, because the object of the respective crimes were the same and the respective crimes, including the charged offense, were carried out in a very similar fashion, there were was sufficient evidence both the charged and uncharged acts were carried out according to a common design or plan. Thus admission of the excerpts was not subject to an objection under Evidence Code section 1101.
Simpson also objects to admission of the book cover and its reference to Simpson's membership in the Crips. However, as the trial court noted, the cover, with its picture of Simpson and the gang reference were relevant in demonstrating that in fact Simpson actively participated in writing the book.
As Simpson points out, our conclusion that the acts described in his book were not excluded by Evidence Code section 1101 does not end our inquiry. (Ewoldt, supra, 7 Cal.4th at 404.) "Although the evidence of defendant's uncharged criminal conduct in this case is relevant to establish a common design or plan, to be admissible such evidence 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.' [Citations.]' " (Ibid.) Thus we must "proceed to examine whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would]... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (Ibid.)
"The principal factor affecting the probative value of the evidence of defendant's uncharged offenses is the tendency of that evidence to demonstrate the existence of a common design or plan." (Ewoldt, supra, 7 Cal.4th at p. 404.) Here, that tendency is quite strong. First, there is a great deal of similarity between the events depicted in the book excerpts and the charged offense: after casing stores, daylight robberies of jewelry stores in malls with the assistance of accomplices. Secondly, the source of information about the uncharged offenses is, in this context, fairly trustworthy: Simpson.
In terms of prejudice the only fact that would tend to undermine the existence of a common scheme or plan is the fact the events depicted in the book occurred l5 to 20 years before the charged robbery. However, the remoteness in time has far less impact than it might otherwise have because the record also shows that for most of the interval between robberies, Simpson was incarcerated. (See People v. Davis (2009) 46 Cal.4th 539, 602; People v. Peete (1946) 28 Cal.2d 306, 308-309, 318-319.) Moreover, the acts described in the excerpts were not significantly more inflammatory than the daylight robbery which Simpson was charged with leading and which included theft of a rental car and a high speed chase.
In sum, the challenged evidence was highly probative in that it was strong evidence of the existence of a common scheme or plan and was not unduly prejudicial. Thus the trial court did not err in admitting it.
As we pointed out at the outset, however, even if the trial court erred in admitting the excerpts and book cover, the volume of other evidence which supported Simpson's conviction was overwhelming. There was no dispute that at the time of the robbery that the car Egbouonyne had obtained for Simpson was used as a getaway car, that the getaway car was eventually found at Simpson's cousin's apartment complex, and that Simpson had invented a wholly discredited story about being carjacked which he repeated, with variations, to Egbouonyne and law enforcement personnel. Given this quantum of evidence, in the absence of admission of the book excerpts and cover, we have little doubt Simpson would have been convicted, and thus any error in admitting the evidence, if it occurred, was not prejudicial.
II
In his next argument on appeal, Simpson contends Deputies Pierson and Marks should not have been allowed to testify about their pretrial identification of Simpson or identify Simpson at trial. Simpson contends the circumstances under which Pierson and Marks were shown a photograph of Simpson were unduly suggestive and tainted their identification of him as the driver of the Taurus they attempted to stop. Notwithstanding his failure to object to the identification testimony, Simpson contends admission of the deputies' identification of him violated his right to due process and that trial counsel was ineffective in failing to raise a proper objection. Although we need not reach the issue of the propriety of the identification procedure because Simpson did not properly preserve the issue for appeal (Evid. Code, § 353; People v. Cunningham (2001) 25 Cal.4th 926, 989), in order to avoid a multiplicity of litigation on the issue, we will nonetheless consider Simpson's contentions.
At trial both Marks and Pierson identified Simpson as the driver of the Taurus. Pierson testified he had seen Simpson's face when he got out of the car and put his hands up. Pierson testified he had also seen Simpson's face during the chase because Simpson had repeatedly looked back at the deputies in the rearview mirror of the Taurus. Marks testified Simpson looked back at him when the Taurus first stopped along the off-ramp. As we have indicated, earlier both deputies had identified Simpson as the driver when they saw a picture of him and when they saw him at the San Clemente checkpoint.
"Whether an extrajudicial identification admitted at trial is so unreliable as to violate a criminal defendant's right to due process of law under the Fourteenth Amendment is governed by principles stated in Manson v. Brathwaite (1977) 432 U.S. 98 [97 S.Ct. 2243]. Those principles—although variously phrased in various state and federal decisions—establish the following structure of analysis.
"The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary (Manson v. Brathwaite, supra, 432 U.S. at pp. 104-107; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation (id. at pp. 109-114). If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. (Id. at pp. 104-107, 109-114.)" (People v. Gordon (1990) 50 Cal.3d 1223, 1242, overruled on other grounds People v. Edwards (1991) 54 Cal.3d 787, 819-844.)
"On the merits, although a one-person showup may pose a danger of suggestiveness, such showups 'are not necessarily or inherently unfair. [Citations.] Rather, all the circumstances must be considered.' " (People v. Medina (1995) 11 Cal.4th 694, 753.) In People v. Medina a one-person photographic procedure was not unfair because defendant's disruptive behavior in court prevented him from being present in court for an in-person identification. Here, the photographic identification was in part caused by the fact that Simpson himself had reported being carjacked, and in investigating that report Officer Felt had retrieved Simpson's photograph from Department of Motor Vehicle records. Showing Simpson's photograph to Pierson and Marks, who had recently pursued the car Simpson reported as being carjacked, was a reasonable and necessary step in investigating Simpson's report. Plainly, if Pierson and Marks, who recently had contact with the driver of the Taurus, had not been able to identify Simpson, Simpson's report of a carjacking would have been more credible. On the other hand, both officers' prompt and certain identification of Simpson as the driver they saw during the chase, which began very shortly after the robbery, cast some doubt on Simpson's carjacking report. Thus, in the unusual context in which the identification occurred and the need to promptly investigate Simpson's own report, it was neither unfair nor unnecessary.
Moreover, the circumstances under which Pierson and Marks saw Simpson driving the Taurus and later identified his photograph, suggest that their identification was reliable. We note that the deputies were chasing the Taurus for several minutes, during which they were plainly focused on the driver and any other passengers in the car. When the driver got out of the car and looked at the officers, we can again conclude the deputies were intensely focused on him. We also note that the photographic identification occurred within 24 hours of seeing the driver of the Taurus.
In sum then, the circumstances which existed at the time the deputies were shown Simpson's photograph made it reasonable to use that procedure, and in any event the totality of circumstances made their identification reliable. Thus, even if counsel had made an objection to the identification, it would have been properly rejected.
Moreover, any error in permitting the deputies to identify Simpson was not prejudicial. The deputies' identification of Simpson as the driver was not a major part of the prosecution case, which was firmly based on Simpson's rental of the Taurus, the two companions he brought with him to San Diego, the Taurus's undisputed use in the robbery, Simpson's completely incredible carjacking explanation and the discovery of the Taurus at Simpson's cousin's apartment complex. In addition of course, there was evidence Simpson had "cased" the jewelry department days before the robbery. Plainly, in the absence of the deputies' identification of Simpson, the jury would have concluded that Simpson and his companions committed the robbery.
III
Next, Simpson contends there was insufficient evidence the jewelry department was in fact robbed. In particular, he argues there was no evidence the earring Schmidt gave Simpson's confederate was taken from her with force or fear. Again, we reject Simpson's contention.
In People v. Flynn (2000) 77 Cal.App.4th 766 defendant was prosecuted on the theory that although he did not use force to take the victim's hand bag, he used it to keep her from retrieving it. In finding evidence to support that theory of robbery, the court stated: " 'Robbery is the... taking of... property... accomplished by means of force or fear.' (Pen. Code, § 211.) Accordingly, 'to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear.' (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) 'Gaining possession or... carrying away' includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property. (People v. Prieto (1993) 15 Cal.App.4th 210, 211-216 [victim too 'fearful and shocked' to intervene in nearby struggle between perpetrator and second victim over purses belonging to both victims]; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1346-1349 [victim ordered out of his residence at gunpoint before property was carried off]; People v. Hays (1983) 147 Cal.App.3d 534, 541-542 [fearful victim fled before taking of property].)
"Most robberies involve actual or threatened force, resulting in fear on the part of the victim, at the time the property is taken. (People v. Wright, supra, 52 Cal.App.4th at pp. 209-210.) However, the requisite fear need not be the result of an express threat. (See People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 ['rather polite... "tap" ' of cashier sufficient where it caused cashier to fear defendant might be armed]; People v. Davison (1995) 32 Cal.App.4th 206, 214 [victim is confronted by two men at an automatic teller machine, and ordered to 'stand back']; People v. Brew (1991) 2 Cal.App.4th 99, 104 [relative size of defendant and victim a factor]; In re Anthony H. (1982) 138 Cal.App.3d 159, 166 [after following victim in car, suspect says, 'I don't want to harm you, but I want your purse'].) Further, the requisite force or fear need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. (People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1079 [use of force by car burglar after he had possession of the victim's stereo sufficient even though perpetrator subsequently abandoned the stereo and fled]; People v. Pham (1993) 15 Cal.App.4th 61, 65-68 [where thief used force against victims as thief carried property away, robbery occurred even though victims subdued thief and no further asportation occurred]; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 [force used against store security guard who tried to prevent escape of shoplifter].)
"A theft or robbery remains in progress until the perpetrator has reached a place of temporary safety. (People v. Carroll (1970) 1 Cal.3d 581, 585.) The scene of the crime is not such a location, at least as long as the victim remains at hand. (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1375 ['Phrased otherwise, the robbery is not "over" until the victim has reached a place of temporary safety']; see also People v. Haynes (1998) 61 Cal.App.4th 1282, 1292.) When the perpetrator and victim remain in close proximity, a reasonable assumption is that, if not prevented from doing so, the victim will attempt to reclaim his or her property. (People v. Webster (1991) 54 Cal.3d 411, 442 [assuming that murder victim had willingly given car key to defendant, jury could infer from later violence that defendant used force to prevent victim from retrieving the key].)
"It follows from these principles, and we hold, that the willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery. So long as the perpetrator uses the victim's fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator's specific words or actions designed to frighten, or by the circumstances surrounding the taking itself." (People v. Flynn, supra, 77 Cal.App.4th at pp. 771-772.)
The principles discussed in People v. Flynn fully support Simpson's conviction. Here, the record shows that in jumping over the counter and attempting to open the jewelry case Schmidt had just locked, Simpson's confederate frightened Schmidt, who ran towards Nichols and told Nichols to get out of the way because the store was being robbed. Although Schmidt gave the confederate the earring he left the store with, his aggressive behavior was more than sufficient to prevent Schmidt from making any attempt to retrieve the ring from him when he fled the store. Thus there was more than sufficient evidence to support Simpson's robbery conviction. (See People v. Flynn, supra, 77 Cal.App.4th at pp. 771-772.)
IV
Finally, Simpson asserts the trial court committed a number of sentencing errors. We reject some of his sentencing arguments. However, in other respects the Attorney General agrees with Simpson's sentencing arguments, as do we, and as to those, we order the abstract of judgment corrected.
A. Grand Theft
Simpson argues, and the Attorney General concedes, his conviction on count 6 for grand theft must be stricken because it is a lesser included offense of the robbery for which he was convicted under count 1. (See People v. Ortega (1998) 19 Cal.4th 686, 699, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.) Hence we will strike Simpson's conviction on count 6.
B. Section 654
As we noted, Simpson was convicted of both robbery and evading an officer. On appeal Simpson contends sentencing on the evading count should have been stayed under section 654. We find no error.
Section 654 provides in pertinent part: "An act or omission which is made punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." In a seminal explanation of section 654, the Supreme Court stated: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [¶] Thus in People v. Logan [1953] 41 Cal.2d 279, 290, defendant, who chose to commit robbery by first knocking out his victim with a baseball bat and then taking his valuables was convicted of both robbery and assault. We reversed the assault conviction on the ground that the double punishment violated section 654. In In re Chapman [1954] 43 Cal.2d 385, 387, however, we held that when the assault is not a means of perpetrating the robbery but is an act that follows after the robbery is completed the defendant is guilty of two punishable acts." (Neal v. State of California (1960) 55 Cal.2d 11, 19-20.)
Here, the trial court, in ruling on Simpson's motion to stay the evading count, found the robbery was complete before the sheriff's deputies began pursuing the Taurus and thus the robbery and the evasion could be separately punished. This finding is supported by the record.
There is no dispute that although the robber and his companion were followed out of the store, once they got to the Taurus and it left the shopping center parking lot, the robbers were not again followed until they reached Interstate 15, almost two miles away. Given the robber and his companion's initial escape to the Taurus, the car's departure from the shopping center without further pursuit by anyone at or near the shopping center, the distance between the shopping center and the freeway, and the other avenues of escape the robbers could have taken before reaching the freeway, the trial court could reasonably conclude that for purposes of applying section 654, the robbery was complete before the pursuit began and that the evasion that occurred thereafter could be separately punished.
B. Section 667, subdivision (a) Enhancements
At the sentencing hearing, the trial court stated that it was imposing 10 consecutive prior prison term enhancements of five years each under section 667, subdivision (a). However, the abstract of judgment imposes only eight such enhancements, and the Attorney General concedes that, in any event, at most the court could have imposed only three section 667, subdivision (a) enhancements.
Neither the reporter's transcript of the sentencing hearing nor the abstract indicate which conviction in this case served as the basis for imposing the 667 section, subdivision (a) enhancements. However, the robbery conviction could have served as the basis for imposing the prior prison term enhancements. (See In re Harris (1989) 49 Cal.3d 131, 136.) Thus the trial court was authorized to impose three section 667, subdivision (a) enhancements on the robbery conviction and plainly it would do so on remand. Under these circumstances there is no need for a remand; instead we will order five of the enhancements stricken from the abstract of judgment. (See People v. Price (1991) 1 Cal.4th 324, 492 [remand unnecessary on sentencing error where defendant would not receive more favorable outcome].)
The abstract of judgment also reflects that the trial court imposed two one-year prior serious felony enhancements under section 667.5. The Attorney General concedes that one of the one-year enhancements must be stricken because it was based on the same prior conviction for which one of the prior prison terms enhancements was imposed. Thus one of the section 667.5, subdivision (b) enhancements will be stricken.
DISPOSITION
The conviction on count 6, grand theft, five of the section 667, subdivision (a) enhancements and one of the section 667.5, subdivision (b) enhancements are ordered stricken. The clerk of the superior court is ordered to prepare an amended abstract of judgment so reflecting, and to transmit the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: HUFFMAN, J., IRION, J.
" 'Everything you read in this book is a true and accurate reflection of the people and instances that have impacted me. I did not exaggerate or romanticize my life.'
"Page 36:
" 'I've been hanging out with Tray hitting jewelry licks.'
" 'Tray raps under the name of Ice T practicing his flow behind Spike's. Lethal weapon, bump-bump-bump, lethal weapon, bump-bump-lethal weapon, now assassinate if the people ain't steppin'.
" 'Spike hears the rhymes, comes out to listen, shakes his head, and says, "So much talent [is] going to waste."
" 'After that conversation, Smiley and I start serious planning. We consider every strategy, anticipate all consequences. We visit malls. Smiley checks ideas with Tray and Flinn.
" 'We pick a store in Delamo Mall for our first job. Mission Mary, Smiley's girlfriend, cases the store. Flashing a wad of cash in her purse, she buys a thin chain. The cheap stuff is in the front; the gold watches are in [the] glass cases in the back, just like Tray predicted. There's no security guard in the store. The Rolexes are in the cases in the left rear. The store is next to an exit. Perfect location.
" ' "Trip," Smiley says. We finished eating dinner and are in Smiley's attic above his garage. "We're gonna roll to the store in gees." Gees are stolen vehicles shortened from grand theft auto. Smiley reaches into his father's tool chest. "Li'l Cee, you walk in with this." He hands me a sledgehammer. "And smash the jewelry cases."
" 'I swing the hammer.
"[P]age 37.
" 'Mission Mary drives the stolen car. Flinn, Smiley, and I walk quickly to the store. We pass a newly opened Gap and Walden Books. The smell of Mrs. Field's cookies mixes with the fragrance of Charlie being sprayed onto cards and presented to women. Then we arrive at cases of thing gold chains with a sign saying "Sale, 50% Off" at the entrance to the jewelry store.
" 'My heart pulses a surge of adrenalin. I'm ready.
" 'A blue-suited man shifts his weight behind the glass counter; a couple leans over a case, studying earrings. A woman examines a ring on her finger, then holds it up to catch light.
" 'Smiley jerks his head, signaling Flinn and me to move from the entrance. With two steps, Smiley is inside the store.
" 'I swing. Crash. Glass fractures. Jagged splinters fall into the case. Just like that.
" 'One step to the next case. Swing.
" 'Crash. Another case is cracked.
" 'It's so easy. The glass is a flimsy membrane under the force of my hammer and my swing's power.
" 'Step, swing. Smash. Step, swing, smash.
" 'The woman is frozen as though she holds her breath until I'm finished. The man under the case huddles in a ball.
" 'Here I am, skinny little me, just a child 14 years old, and they're afraid. Wow.
" 'Flinn, a step behind me, scoops out the contents with gloved hands and throws them in a gym bag. Smiley stands at the entrance.'
"Page 38:
" 'When I'm finished, I watch for secutiry at the entrance of the store while Flinn gathers the goods.
" 'In less than a minute, five cases are relieved of their merchandise and the three of us race down the mall walkway.
" 'We open the door to bright daylight.'
" 'Page 42:
" 'Smiley and I pare down jewelry licks to the essentials and we're in and out of a store in less than 30 seconds.
"Page 42:
" 'I love doing jewelry licks. I love the power I wield over adults. I love the rush of adrenalin and learn to harness it. As we obtain better equipment and experience, our business expands. It get so I go it alone, ask to see a Rolex, grab two, dash out of the store, turn them around, and have $8,000 stuffed in my pocket.
"[Page 55 to 56:]
" 'Next day I bring her some diamond studs from a jewelry lick, and her eyes widen. She puts them in her ear, turns her head back and forth for me, then runs to see herself in the mirror. Ooh, she squeals. We clean out two display cases and we're out of there like clockwork, 30 seconds, and the smash and grab is done. Piece of cake. I run, but another cop arrives in a patrol car and catches me.
" 'It's 1981.'
"Page 76:
" 'Our plan is to make two hits. The proceeds from the first will go to Smiley's attorney. The proceeds from the second will be divided among the crew.
" 'Goofy V is with it and so is J-Dog. We need a getaway driver. Women make good getaway drivers because cops are slower to pull them over. Mission Mary, Smiley's girlfriend, our normal driver, was captured for robbery, turned state's evidence, served three months, and is now in hiding.'
"Page 80:
" 'Returning from a robbery, the Highway Patrol started chasing us. He drove... a mile down the freeway ravine against traffic. Then we jumped from a getaway car and ran for a bus.'
"Page 163:
"A few minutes later, wounds healed, Goofy--J-Dog, Goofy V, D'Andre, and I rob a jewelry store of $150,000 worth of Rolex watches. I'm the smasher and the leader, so I always get a large percent of the split. The smasher and the gunmen get the most; the driver and fence get less.'
"Page 163-164:
" 'So we hit a jewelry store in the strip mall. I smash the jewelry case; the glass shudders but doesn't break. I whack it harder, but it stays solid.
" ' "Cee, it ain't workin," man. Come on. Let's get outta here before we get busted.' Big T's brow is wet.
" 'I ignore him and swing the sledgehammer. One of the store employees takes advantage of T's fears and shouts, "The police are coming."
" 'I jog to the entrance and galnce down the walkway. There're no pigs. I lift the sledgehammer, turn to the employee, hiss, "Shut the fuck up," and hit the glass with all my might. The glass vibrates. I grab the case an heave it to the floor. Glass and jewelry fly. Glass cubes lie like diamonds. Big T and I grab the loot and race from the store.'
"Page 174:
" 'The licks come fast and furious. One after another. The money is spent on more cars, more booze, more clothes, and gold jewelry.'
" 'It's a cool day and I dress nondescript, wearing a blue Fila casual outfit. Even though it's midday, the mall bustles with the traffic of people shopping till they drop. Housewives with shoulder pads and big hair amusing themselves, men on lunch breaks, teens wearing high-top basketball shoes and parachute pants, Calvin Klein jeans. It's a small mall. As usual, the cheap, skinny chains are in the front of the jewelry store with a sign screaming 30% off. I spent a half hour wandering the mall, checking security camersas, personnel, cop tours, noting the exits and the parking lot. I buy a new pair of Nike Airs at Foot Locker, put them on, and throw away the dirty ones.'
"Page 175:
" 'My preliminary work is complete. I enter the store. A young couple examines diamond... rings, holding hands as they crouch over the case. Buying an engagement ring, I surmise. I stroll to the rear, alert for earth signs, but this is all easy. Everything is clear. A woman with blonde fluffy hair and iridescent blue eye shadow waits behind the counter. I ask to see a diamond ring, pick up the jewel[er]'s glass to examine it.
" 'The young couple tries on engagement rings from a tray. "I like this one, with the baby diamonds on each side," she says.
" ' "It has a flaw. In the corner." I return the ring to clerk. And then, as though seeing the ruby for the first time, I say, "Let me see that one." The red is [as] bright as fresh blood.
" ' "This one is custom made and is already sold," she replies.
" 'I grab it, clutch it in my hand, spin, and run.
" ' ''Help, help. He stole the ring," she screams.
" 'But I'm already racing in the mall as she scrams. I slide the ring into my pocket, pump my arms. My new shoes are light, traction perfect.'
"Page 208:
" 'I bolt from the store, clenching jewelry. My heart throbs in my ears as my legs pump. A diamond digs into my palm, a gold chain wraps around my thumb. I hurdle a short fence and race, gasping. Then, from around the corner, come a cop running at me. Heart pounding. I look for an alley.' "
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."