Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC247074
RUSHING, P.J.
Defendants Todd Sweat, Willie Pepe Lewis, also known as “Pep,” and Karl Wayne Landry, also known as “Slick,” appeal following a jury trial in which they were convicted of crimes related to a robbery of a Holiday Inn in San Jose that occurred on January 18, 2002. Defendants Sweat, Landry, and Lewis were found guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and false imprisonment (§§ 236, 237), and Sweat and Lewis were also convicted of possession of a firearm by a felon (§ 12021, subd. (a)(1)).
A fourth defendant, Lorenzo Fosselman, was also implicated in the robbery, and his case was resolved separately.
All further unspecified statutory references are to the Penal Code.
In addition to the convictions, the jury found true allegations the defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), a principal personally used a handgun in the commission of the robbery (§ 12022.53, subd. (b)), and Sweat and Lewis personally used a handgun in the commission of the false imprisonment (§ 12022.5, subd. (a)(1)). The court found true allegations both Sweat and Lewis had served a prior prison term (§ 667.5), and Landry had three prior serious felonies (§ 667, subd. (a)), and four prior strikes (§ 1170.12).
On appeal, Landry contends that (1) the evidence was insufficient to support his convictions; (2) the admission of the hearsay statements by Sweat and Fosselman implicating him in the offenses violated his right to confrontation; and (3) the court erred in failing to give an instruction limiting the use of gang testimony and/or counsel rendered ineffective assistance by failing to request such an instruction.
Sweat joins in the hearsay, confrontation clause, instructional error, and ineffective assistance claims raised by Landry. In addition, Sweat contents (1) there were other prejudicial evidentiary errors; (2) the evidence was insufficient to support his conviction; (3) the trial court erred in denying his Batson/Wheeler motion, to which Landry joins; and (4) the prosecutor committed misconduct.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
In Sweat’s reply brief he states that he is withdrawing contentions raised in his opening brief that the trial court erred in denying his motion to disqualify the trial judge, and that there was sentencing error.
Lewis contends that the trial court violated his right to confrontation by admitting evidence of out-of-court statements by Sweat and Fosselman implicating him in the offenses, to which Landry joins. Lewis also joins in “all arguments and issues presented by” Sweat and Landry.
Statement of the Facts and Case
As a result of the January 18, 2002 robbery of a Holiday Inn in San Jose, defendants Sweat, Landry, and Lewis were charged by information with second degree robbery (§§ 211, 212.5, subd. (c) - count 1) and false imprisonment (§§ 236, 237 – count 2). Sweat and Lewis were further charged with possession of a firearm by a felon (§ 12021, subd. (a)(1) - counts 3 & 4). In addition, the information alleged that all three defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); that Sweat personally used a handgun and Lewis and Landry were armed with a handgun (§§ 12022.53, subds. (b), (e)(1); 12022, subd. (a)(1)) during the commission of count 1; and that Sweat and Lewis personally used a handgun and Lewis and Landry were armed with a handgun (§§ 12022.5, subd. (a)(1), 12022, subd. (a)(1)) during the commission of count 2. Lastly, the information alleged that both Sweat and Lewis had served a prior prison term (§ 667.5, subd. (b)), and that Landry had three prior serious felony convictions and four prior strikes (§§ 667, subd. (a), 1170.12).
Events Leading up to the Robbery
Tim O’Connell worked at the registration counter at the Holiday Inn on Silicon Valley Boulevard in San Jose. On January 6, 2002, O’Connell was approached at the front desk by an African-American man who asked to receive some of his room deposit back. O’Connell told the man that he would not be able to give the deposit back until the man checked out, and that most of the deposit had been spent on room charges and movie rentals for the room, which was registered to Star Winters. The man was upset.
On January 16, 2002, about 2:00 a.m., this same man came back with another man, who asked about getting a room for the night. The first man recognized O’Connell as the clerk who refused to give him back his deposit, and said that O’Connell owed him the money and needed to give them a room to make up for it. O’Connell said that he could not do that, but offered a lower room rate to the men. The men said that they only had a small amount of money, which was not enough, and O’Connell told them the minimum rate he could give. The first man was upset, and the two left the lobby.
The men returned after a few minutes with two women, and approached the desk to rent a room. While O’Connell was checking them in, they stated that they wanted a different, higher priced room than O’Connell planned to give them. When O’Connell explained that such a room would cost more, the first man became agitated again. The second man tried to negotiate with O’Connell for a lower rate. When O’Connell told the second man that there was nothing he could do, this man became agitated, too. All four of the people then left without renting a room.
The Robbery and Police Investigation
O’Connell was on duty on the morning of January 18, 2002, and left the front desk counter for a moment around 5:30 a.m. Two African-American men were at the counter when he returned, one on either side of it. The men were wearing baggy clothing that was mostly blue, and the lower halves of their faces were covered by bandannas. The man behind the counter was armed with a handgun and the other man also appeared to hold a gun. The man behind the counter pointed his gun at O’Connell, threatened him, and directed him to lie flat on the floor. O’Connell “did what he asked,” and lay down on the floor in the back office. O’Connell heard the other man come over the counter, and the two men talk about where the security camera and money were located. He also heard things being moved, and people going through cabinets, closet areas, and the cash drawer. Although O’Connell did not actually see a third person, he heard “enough activity and conversation to lead [him] to believe that there were three people.”
O’Connell was told that he had 10 minutes to disable the security camera or he would be dead. He told the men where the security system was, but said that he did not know how to disable it. The men asked O’Connell where his things were, and O’Connell said that they were in the back. One man told O’Connell to get them but, when O’Connell tried to get up, another man told him to get back down. One of the men brought O’Connell’s backpack to him and dumped the contents on the floor in front of him. The men went through the contents of the backpack and took a cell phone, a pager, two credit cards, O’Connell’s driver’s license, and a small amount of cash. When they saw handcuffs, the men asked O’Connell if he was a policeman. O’Connell responded that he worked store security. The men handcuffed O’Connell’s hands behind his back and told him “not to get up and that there was someone outside that was waiting to see if [he] called the police.”
O’Connell saw the men leave the back office and close the door behind them. A few minutes later he heard a hotel guest out in the lobby ask for assistance. O’Connell got up and saw that the area was clear. He radioed the only other employee on duty to come to the front desk. That employee came and helped O’Connell out of his handcuffs, and O’Connell then called 911. It was later determined by hotel personnel that approximately $1,000 had been taken from the hotel cash registers.
San Jose Police Officer Chris Inman responded to the report of a robbery at the Holiday Inn. He spoke with O’Connell, who described two subjects to him: two African-American males in their mid 20s. One was approximately 5 feet 5 inches tall, 150 pounds, wearing a navy blue windbreaker with a hood and holding a revolver. The other was approximately 5 feet 9 inches tall, 160 pounds, with a bald head, wearing dark blue clothing and carrying a semiautomatic handgun. Other officers obtained the videotape from the security camera, a description of the property taken by the subjects, and a latent fingerprint obtained from a piece of paper on the front counter. The fingerprint was later identified as belonging to Fosselman.
Detective John Mitchell reviewed the security tape taken from the Holiday Inn after the robbery and talked with O’Connell by telephone. The security tape showed that three men were involved in the robbery inside the hotel. Detective Mitchell and Detective David Gutierrez then went to Star Winters’s San Jose address on January 18, 2002, at approximately 3:00 p.m., in an unmarked car. When they arrived, they saw an African-American male sitting inside a black Chevrolet Cavalier in front of the residence, and another African-American male walking toward the car from the front of the residence, talking on a cell phone. As the officers made a U-turn so that they could see the license plate on the Cavalier, the second man entered the passenger side of the car and it drove off. The detectives pulled up behind the Cavalier, which then turned abruptly onto a sidewalk. Both men exited the Cavalier, leaving the doors open and the engine running, and jumped over a six-foot concrete wall. The officers stayed with the Cavalier and radioed other units in the area for help. Inside the Cavalier, on the front passenger seat, was O’Connell’s driver’s license. Also inside the Cavalier was an Enterprise car rental agreement for the Cavalier in the name of Paul Dawson. Attached to the agreement was an addendum adding defendant Sweat as a driver.
At trial, Officers Gutierrez and Mitchell both identified Sweat as the man they had seen driving the Cavalier. Mitchell testified that Fosselman was the man he had seen walking from Winters’s house. Gutierrez impounded the Cavalier and he and Mitchell returned to Star Winters’s residence.
Winters, then 18-years-old, was not home when Detective Mitchell went to her residence, so he talked to Winters’s mother, who told the detective that Winters’s boyfriend was known as “LJ.” She gave him Winters’s and LJ’s cell phone numbers.
The impounded Cavalier was dusted for fingerprints on February 4, 2002. Fosselman’s, Sweat’s, and Landry’s prints were found on the Cavalier, but Lewis’s prints were not. On February 9, 2002, Detective Mitchell showed O’Connell the hotel security video recording of the robbery, stills taken from the video, and photographic lineups containing Fosselman’s and Sweat’s photos. In one photographic lineup, O’Connell identified Fosselman “as the person he had had problems with prior to the robbery,” “the person he had a prior contact with.” O’Connell was not able to identify Sweat in the other photographic lineup.
Fosselman’s, Sweat’s and Lewis’s cell phone records indicate that there were multiple calls made between their phones and to Landry’s phone in the hours before and after the robbery. Fosselman’s records also indicate that he traveled from San Jose to Stockton on January 17, 2002, and returned in the early morning of January 18, 2002.
Winters talked with Detective Mitchell about what she knew about the Holiday Inn robbery. She said that Fosselman sometimes stayed with her at her home, and sometimes the two of them rented a room at the Holiday Inn in her name. Sweat would sometimes stay at the hotel with them. One time Winters and Fosselman went to rent a room at the Holiday Inn with a man named, “Life” and his girlfriend. Fosselman and “Life” exchanged words with the desk clerk, and they left without getting a room.
“Life” was never identified.
On January 17, 2002, Fosselman called Winters at home and asked her for $100. He arrived at her house between midnight and 2:00 a.m. on January 18, 2002. While they were standing at the front door talking, Winters saw a black car outside with three men inside it. She recognized Sweat, who was sitting in the front seat. She identified Lewis as the person who was sitting behind the front passenger seat, but said that at that time she had never seen or talked to him before and she did not know his name. She did not get a good look at the fourth person, but she told Detective Mitchell that he was “an older black gentleman.” Fosselman contacted Winters later that afternoon. From down the street, Winters saw Fosselman run from her house and get into the car with Sweat. They drove past Winters without stopping. Winters later saw the car abandoned, and police around it and her house, so she did not go home. Fosselman called her on her cell phone and said that he was with Sweat and that he was hiding from the police. She agreed to meet them.
Winters, Fosselman, and Sweat stayed at a Motel 6 that night. There, Fosselman and Sweat bragged that they had robbed a Holiday Inn with “Pep.” They told Winters that a fourth person was involved, but that he did not go inside the hotel. They said that nobody was at the front counter when they arrived. They had one gun that they passed back and forth between them. Someone jumped over the counter, they handcuffed the clerk with handcuffs they found in the clerk’s backpack, and then they took about $2,000. They said that they had the clerk’s driver’s license, but that the license fell out of Sweat’s pocket when he pulled out the gun used in the robbery as they ran from the car. After jumping over a wall, Sweat threw the gun in a nearby dumpster. Winters testified at trial that even though the statements were made at a hotel, she told Detective Mitchell that all these statements were made to her at a Denny’s Restaurant. She said this because she was afraid; she was with two African-American men at the hotel whereas Denny’s is “out in the open.”
Fosselman and Winters went to Stockton, and stayed at a hotel for a couple of nights. There, Winters met both “Pep and another guy” for the first time. She identified this fourth person at trial as Landry, but stated that she does not “know him by name . . . .” She testified that Fosselman always referred to Landry as “Slick,” and that defendant always referred to Lewis as “Pep.” She further testified that while they were in Stockton, Fosselman repeatedly bragged about what happened during the Holiday Inn robbery but that he did not do so in front of either Lewis or Landry. He never told her what “Pep” had done during the robbery, other than jump over the counter, and she never heard Lewis or Landry talk about the robbery. Fosselman told Winters the same day that she met Landry that Landry “was with him” at the robbery, that he was the fourth person involved. Winters stayed with Fosselman in Stockton until March 8, 2002, when she returned home to San Jose. During her time in Stockton, she saw Landry and Lewis together three or four times, and Landry alone one other time.
On February 5, 2003, after the preliminary hearing in this matter, defendants’ jail quarters were searched and mail and other personal items were seized. In the mail were letters to and from Antwan Richardson and Lydell Yarber, Detective Mitchell spoke to Yarber and Richardson about what they knew about the robbery.
Yarber testified that he has known Sweat and Fosselman for about four or five years. He saw Sweat and met Lewis while they were all in county jail. Yarber never talked to either Sweat or Lewis about why they were in jail, but he did ask Lewis if his brother’s name was in the police report that Lewis had. Lewis let Yarber read the police report. Yarber testified that he told Detective Mitchell that all he knew about the robbery was what he read in that police report.
Yarber testified after first refusing to do so under a grant of immunity and then spending a weekend in custody.
A tape of Mitchell’s interview of Yarber, Exhibit 113, was played for the jury. During the interview Yarber stated that he, Sweat and Fosselman were fellow gang members before they all went to jail. Yarber saw Sweat, Lewis, and Landry together one day in jail and knew that they had been arrested for a robbery. Lewis had shown Yarber the police report. When Mitchell asked Yarber what he knew, Yarber stated that he knew that a lot of the information in the police report came from Winters. The report said that the robbery occurred at a Holiday Inn. Yarber said that Fosselman had tried to recruit him for a robbery at a hotel. Lewis told Yarber that he, Sweat and Fosselman did the robbery, and that he held a gun. Lewis also said that one day Yarber’s brother gave him and his uncle a ride from San Jose to Stockton, and Yarber thought that this might have occurred around the time of the robbery. Yarber once said to Sweat that he heard that Sweat had handcuffed somebody, and Sweat laughed about it. Sweat said that he jumped over a counter, that he pulled handcuffs out of a backpack, and that he handcuffed the victim.
Richardson testified that he has known Sweat for about 10 years and has known Fosselman for about eight years. At some point in 2002, Richardson and Sweat were housed in the same part of county jail. Sweat showed Richardson the police reports in this case, and he told Richardson what happened. Later, after Richardson was moved to state prison, he wrote letters to Sweat at the jail. In one of the letters he told Sweat that Winters was saying things that she should not. Richardson told Detective Mitchell that Fosselman “spilled his guts” to Winters, and that Winters told on Sweat. Richardson told Mitchell that Sweat, Fosselman, and a man from Stockton were involved in the robbery, but he testified that he got that information from the police report, not from Sweat.
Richardson testified under a grant of immunity.
San Jose Police Detective Tamara Sass testified as an expert on African-American criminal street gangs. She testified that the 408 MOB gang is an ongoing criminal street gang, with the primary activities of robbery, assault with a deadly weapon, possession of drugs for sale, and vehicle theft. Fosselman and Paul Dawson (the primary renter of the Cavalier) are members of the gang who have prior gang convictions. Sweat is also an admitted member of the 408 MOB gang, and Yarber and Richardson are associated with the gang. Members and associates of 408 MOB wear blue clothing and, in January 2002, the gang had approximately 20 validated members. Landry is one of the original founders of the Swamp Boys gang in San Jose, which later became known as El Rancho Verde. El Rancho Verde is another ongoing criminal street gang affiliated with the Crips, and its members also identify with the color blue. Lewis is a member of 4400 Block, a subset of the North Side Gangster Crips, an ongoing criminal street gang in Stockton. Detective Sass testified that, in her opinion, the robbery at the Holiday Inn was committed in association with and for the benefit of a criminal street gang.
The parties stipulated that prior to January 18, 2002, both Sweat and Lewis had been convicted of a felony. The parties further stipulated that Fosselman and Lewis were acquainted with each other prior to January 18, 2002.
The Defense Case
Nikiel Lewis, defendant Lewis’s sister, and Precious Lewis, his wife, testified that on January 17, 2002, Lewis and they attended a birthday party for Lewis’s young son in Stockton. They left the party about 8:30 or 9:00 p.m. They testified that they did not think that Lewis is a Crips gang member. Precious Lewis also testified that she told an investigator working for Lewis’s attorney in January 2003 that Lewis spent the rest of the night and the morning following the January 17, 2002 birthday party with her.
Verdicts and Post Trial Motions
On February 9, 2004, prior to submission of the matter to the jury, the prosecutor dismissed the section 12022, subdivision (a)(1) arming allegations as to Landry and Lewis. On February 11, 2004, the defendants waived jury trial on the prior allegations. The jury found all three defendants guilty of the charged robbery (§§ 211, 212.5, subd. (c)) and false imprisonment (§§ 236, 237), and found true allegations that they committed the offenses in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found true the remaining arming allegations (§§ 12022.53, subd. (b); 12022.5, subd. (a)(1)), and found Sweat and Lewis guilty of possession of a firearm by a felon (§ 12021, subd. (a)(1)). On March 16, 2004, following a court trial, the court found true the allegations that Landry had three prior serious felonies (§ 667, subd. (a)), and four prior strikes (§ 1170.12), and that Lewis had served a prior prison term (§ 667.5, subd. (b)). On March 18, 2004, following a court trial, the court found true the allegation that Sweat had served a prior prison term.
On May 3, 2004, Landry filed a motion for new trial, contending that the court erred in admitting statements made by his codefendants. On May 10, 2004, Landry filed a motion requesting that the court exercise its discretion to dismiss his strike priors. The prosecutor filed opposition to both motions. On May 19, 2004, Lewis joined in Landry’s motion for new trial. The court denied the motion for new trial. The court also denied Landry’s request that it strike his prior strikes.
The court sentenced Landry to 30 years to life consecutive to 25 years, and Lewis to 24 years in state prison. On June 16, 2004, the court sentenced Sweat to 26 years in state prison.
Discussion
On appeal, Landry contends that (1) the evidence was insufficient to support his convictions; (2) the admission of the hearsay statements by Sweat and Fosselman implicating him in the offenses violated his right to confrontation; and (3) the court erred in failing to give an instruction limiting the use of gang testimony and/or counsel rendered ineffective assistance by failing to request such an instruction.
Sweat joins in the hearsay, Confrontation Clause, instructional error, and ineffective assistance claims raised by Landry. In addition, Sweat contents (1) there were other prejudicial evidentiary errors; (2) the evidence was insufficient to support his conviction; (3) the trial court erred in denying his Batson/Wheeler motion, to which Landry joins; and (4) the prosecutor committed misconduct.
Lewis contends that the trial court violated his right to confrontation by admitting evidence of out-of-court statements by Sweat and Fosselman implicating him in the offenses, to which Landry joins. Lewis also joins in “all arguments and issues presented by” Sweat and Landry.
Hearsay Evidence
On appeal, Landry and Lewis assert the trial court erred in admitting Sweat’s and Fosselman’s out-of-court statements concerning their involvement in the robbery.
Specifically, defendants assert Sweat’s statements implicating them in the robbery were inadmissible, because he was a codefendant and the statements were being introduced in a joint trial, and therefore, admission of the statements violated defendants’ Sixth Amendment right to confrontation (see Bruton v. United States (1968) 391 U.S. 123 (Bruton)). In addition, defendants assert Sweat’s statements do not fall within a firmly rooted exception to the hearsay rule and did not contain particularized guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56 (Roberts); Lilly v. Virginia (1999) 527 U.S. 116 (Lilly).)
Sweat’s and Fosselman’s out-of-court statements are nontestimonial hearsay as that has been defined in Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford).)
Defendants also argue Fosselman’s statements implicating them in the robbery are inadmissible for the same reason Sweat’s statements are inadmissible under Roberts and Lilly. However, because Fosselman is an accomplice not on trial at the same time as Lewis and Landry, the statements are not subject to a Bruton analysis.
The United States Supreme Court has stated that “when deciding whether the admission of a declarant’s out-of-court statement violates the Confrontation Clause, courts should independently review whether the government’s proffered guarantees of trustworthiness satisfy the demands of the Clause.” (Lilly, supra, 527 U.S. at p. 137.) The court rejected the view that “appellate courts should defer to lower courts’ determinations regarding whether a hearsay statement has particularized guarantees of trustworthiness” (id. at p. 136) for purposes of the confrontation clause.
“ ‘The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” The right of confrontation includes the right to cross-examine witnesses.’ ” (People v. Fuentes (1998) 61 Cal.App.4th 956, 963-964, quoting Richardson v. Marsh (1987) 481 U.S. 200, 206.) “ ‘The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ ” (Lilly, supra. 527 U.S. at pp. 123-124, quoting Maryland v. Craig (1990) 497 U.S. 836, 845.)
In the 1968 decision of Bruton, supra, 391 U.S. 123, the United States Supreme Court held that the Confrontation Clause is violated “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by side with the defendant, are deliberately spread before the jury in a joint trial.” (Bruton, supra, 391 U.S. at pp. 135-136.) “The United States Supreme Court concluded in Bruton v. United States, supra, 391 U.S. at page 125 . . . that admission of extrajudicial statements of a codefendant in a joint trial violated the nondeclarant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment even though the statement was received only against the declarant. The court reasoned that limiting instructions, while useful in many situations, could not adequately ensure that the jury would not use this evidence in deciding the case of the nondeclarant. The court concluded: ‘The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.’ (Id. at p. 136 . . . .) Roberts v. Russell (1968) 392 U.S. 293 . . . extended the holding of Bruton to prosecutions under state law.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 331, fn. omitted (Greenberger).)
The California Court of Appeal in Greenberger, supra, 58 Cal.App.4th at page 298, held contrary to Bruton “that a defendant’s declarations against interest may be received in a joint trial without denying the codefendant the right of confrontation guaranteed by the United States Constitution.” (Greenberger, supra, 58 Cal.App.4th at p. 314.) The Greenberger court noted that in order to dispense with the confrontation requirement, the declarant must be unavailable, and there must be “adequate indicia of reliability” of the statement. (Id. at p. 327.)
“In California, ‘[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.’ ([Evid. Code,] § 1230.) The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]” (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).)
In assessing whether a declaration against interest would satisfy the reliability requirement to dispense with the Confrontation Clause, the Greenberger court stated: “In order for a statement to qualify as a declaration against interest the statement must be genuinely and specifically inculpatory of the delcarant; this provides the ‘particularized guarantee of trustworthiness’ or ‘indicia of reliability; that permits its admission in evidence without the constitutional requirement of cross-examination. Therefore, the determination that the statement falls within this hearsay exception also satisfies the requirements of the Confrontation Clause.” (Greenberger, supra, 58 Cal.App.4th at p. 329.)
Following Greenberger, the United States Supreme Court decided Lilly, supra, 527 U.S. 116), rejecting the Greenberger rationale, and instead holding that statements placing blame on other defendants in a joint trial were inherently unreliable and violated the codefendants’ cross-examination and confrontation rights. (Lilly, supra, 527 U.S. at pp. 136-139.)
In Lilly, one of three codefendants in a series of robberies and murders made a 50-page confession, implicating himself in some aspects of the crime, exculpating himself in other aspects, and inculpating his codefendants in several respects. (Lilly, supra, 527 U.S. at pp. 118-122.) The Virginia Supreme Court affirmed Lilly’s conviction on the ground that “ ‘the statement against penal interest of an unavailable witness is a “firmly rooted” exception to the hearsay rule in Virginia.’ ” (Id. at p. 122.)
The United States Supreme Court reversed, a majority of the court concluding that the admission of a codefendant’s untested confession violated defendant’s confrontation rights. (Lilly, supra, 527 U.S. at p. 139.) The plurality of the court held that “accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” (Id. at p. 134, fn. omitted (plur. opn. of Stevens, J.) Moreover, the statements are not admissible “no matter how much [they] also incriminate the accomplice.” (Id. at p. 134, fn. 5.) The plurality noted that a confession by an accomplice that incriminates a criminal defendant is “inherently unreliable.” (Id. at p. 131.)
The Lilly court noted that although accomplice confessions that shift or spread blame to another defendant are presumptively unreliable and violate the Confrontation Clause, that presumption can be rebutted “[w]hen a court can be confident . . . that ‘the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility,’ ” and the statement is admissible. (Lilly, supra, 527 U.S. at p. 136.)
In determining that the accomplice’s statements were not admissible in Lilly, the high court focused on the fact that (1) the declarant was in police custody for serious crimes when he confessed; (2) the confession was the result of leading questions by officers; and (3) he was under the influence of alcohol at the time. (Lilly, supra, 527 U.S. at p. 139.) Under these circumstances the Lilly court found that the confessor “had a natural motive to attempt to exculpate himself as much as possible,” and therefore, the statements were inadmissible. (Ibid.)
The Lilly court clarified that the rule of Bruton cannot be abrogated by the declaration against interest exception, stating “the mere fact that one accomplice’s confession qualified as a statement against his penal interest did not justify its use as evidence against another person.” (Lilly, supra, 527 U.S. at p. 128.)
In the present case, the trial court relied heavily on Greenberger, and its holding that a hearsay statement implicating a codefendant may be introduced not only against the declarant, but also against the declarant’s codefendant. The Greenberger holding was focused on the conclusion that a declaration against interest provides the “‘particularized guarantee of trustworthiness’ or ‘indicia of reliability’ that permits its admission in evidence without the constitutional requirement of cross-examination.” (Greenberger, supra, 58 Cal.App.4th at p. 329.)
While it is true that a declaration against interest may be trustworthy when it is specific to the declarant, the same cannot be said for statements implicating another defendant. In Greenberger, the Fourth District Court of Appeal overlooked the fundamental principal of Bruton that even if a statement is against the declarant’s penal interest, if it implicates another defendant it is inherently suspect, and should not be admitted without the test of confrontation. Moreover, it is of serious question whether Greenberger is even good law after Lilly.
Under Bruton and Lilly, Sweat’s statements implicating Lewis and Landry by stating that a fourth person was involved in the robbery, and that Lewis took part were inadmissible, because Sweat was a codefendant and the statements were being introduced in a joint trial, and therefore, admission of the statements violated defendants’ Sixth Amendment right to confrontation (Bruton, supra, 391 U.S. 123). The trial court’s reliance on Greenberger, and its conclusion that Sweat’s statements bore “particularized guarantees of trustworthiness” and could therefore be admitted was erroneous. (Greenberger, supra, 58 Cal.App.4th at p. 329.) Regardless of whether or not they were trustworthy, Sweat’s statements were inadmissible against Lewis and Landry in their joint trial.
With regard to Fosselman’s statements that Lewis was involved in the robbery, that there was a fourth person outside and that Landry was there with him, because Fosselman was not a codefendant in the joint trial, Bruton does not apply. However, because Fosselman and Sweat were accomplices of Lewis and Landry, their statements about Lewis and Landry’s involvement in the robbery are presumptively unreliable under Lilly. The question is whether the statements were made under circumstances that offer particularized guarantees of trustworthiness to be admitted. (See Lilly, supra, 527 U.S. at p. 136.)
To decide whether there is sufficient trustworthiness to admit Fossleman’s and Sweat’s statements “ ‘requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.’ ” (Duarte, supra, 24 Cal.4th 603, 614.)
In the present case, the People rely on federal circuit cases decided after Lilly for the proposition that the accomplices’ statements made in private and away from police involvement should be admitted. One such case was United States v. Boone (9th Cir. 2000) 229 F.3d 1231 (Boone), in which a nontestifying accomplice, Williams, inculpated himself and the defendant in a robbery while reminiscing to Williams’s girlfriend. (Id. at p. 1232.) The trial court admitted Williams’s statements as a statement against interest, an exception to the hearsay rule under Federal Rule of Evidence 804(b)(3), and the Ninth Circuit agreed, finding the statements were properly received into evidence as the circumstances attendant to the making of Williams’s statements provided a particularized guarantee of trustworthiness. (Boone, supra, 220 F.3d 1231 at p. 1234.)
In another post-Lilly Ninth Circuit decision relied upon by the People in this case, Padilla v. Terhune (9th Cir. 2002) 309 F.3d 614 (Padilla), the court noted the Supreme Court “has not addressed specifically the admissibility of a statement against interest made by an accomplice or coconspirator in a private setting, rather than a custodial setting to law enforcement personnel.” (Id. at p. 618.) The Padilla court agreed with the rationale of Boone, that factors such as the circumstances and setting of an accomplice’s statements, as well as the content of the statements, must be considered when determining admissibility of the statement. The court further noted that Boone “did not establish a universal rule that all declarations against penal interest made outside of police custody to persons other than police officers are per se trustworthy; rather, the inquiry whether the declaration was made under conditions which imparted a particularized guarantee of trustworthiness is fact-specific.” (Padilla, supra, 309 F.3d at p. 619.)
In the present case, the trial court evaluated the circumstances surrounding Fosselman’s and Sweat’s statements and made the following finding: “[L]et’s start with Star Winters. She was the girlfriend of Lorenzo Fosselman. He had no reason to lie to her. He and Todd Sweat appeared to be bragging to her about what they had done. She had been around when, apparently, proceeds of another robbery had been split up, and so they obviously trusted her and they were just telling her what had happened. . . . [¶] . . . [¶] I think those statements by Lorenzo Fosselman and Todd Sweat were clearly statements against their penal interest. I think that they were clearly made under circumstances that offer particularized guarantees of trustworthiness and may be admitted.”
Contrary to the trial court’s conclusion stated above, we do not find the Fosselman’s and Sweat’s statements to Winters to be particularly trustworthy. By Winter’s own admission, the two were “bragging” about the robbery, and had motivation to lie and embellish their story. As gang members, Sweat and Fosselman did not operate as a reasonable people for whom a declaration against penal interest would be trustworthy. Unlike an ordinary person who would not lie and admit he committed a crime he did not actually commit, a gang member is motivated to lie or exaggerate his crimes because he enhances his reputation in the gang. (See, e.g., People v. Perez (2004) 118 Cal.App.4th 151.)
Fosselman and Sweat clearly had a motivation to embellish the story of the robbery and, in particular Fosselman would have wanted to impress his girlfriend with his crimes. In addition, Fosselman’s implication of Landry, a high-ranking gang member, would raise his prestige by association. Further, Fosselman told Winters that Landry was there in private, never in front of Landry giving him an opportunity to refute it.
Finally, and of particular importance to our evaluation of whether the statements are trustworthy is the complete lack of detail surrounding Landry’s involvement in the robbery. Fosselman merely stated that Landry was “there,” and was “with” him; there is no indication what if anything Landry actually did. Unlike the other statements Sweat and Fosselman made about the robbery, that included tremendous detail about the guns, loot, hotel, clerk, et cetera, there is curiously no detail about Landry’s supposed involvement in the crime. In addition, Sweat, who made statements about the robbery to Yarber and Richardson while he was in jail, never mentioned Landry at all, and only mentioned vaguely to Winters that there was a fourth person.
In reviewing the totality of circumstances surrounding the admissibility of Fosselman and Sweat’s statements to Winters, not only must the court consider the trustworthiness of Fosselman and Sweat, but also the trustworthiness of Winters as the relator of the statements. Courts have expressed different views about “whether the court, when determining whether there are particularized guarantees of trustworthiness such that a hearsay statement made against penal interest is reliable enough to be admitted against someone other than the declarant, should also consider the reliability and credibility of the person conveying the statement, the relator.” (United States v. Fernandez (C.D. Cal. 2001)172 F.Supp.2d 1265, 1276 (Fernandez).)
While Padilla, supra, 309 F.3d 614, held that the reliability of the relator is a question for the jury, rather than the trial court, the Fernandez court’s rationale is sound: “the better approach is [one] under which the trial court may evaluate the credibility of the relator. When the relator of a hearsay statement is also charged with crimes and is a cooperating witness for the government, the relator has a significant motive to name others as being involved, as doing so insures the relator’s own benefit when he is sentenced. . . . [Citation.] In addition, nothing in Lilly prevents courts from considering the credibility of the relator.” (Fernandez, supra172 F.Supp. at p 1277.)
Winters testified that Sweat and Fosselman bragged to her about the robbery while the three were together at the Motel 6, directly contradictory to what she told Detective Mitchell, that the statements were made in a Denny’s restaurant. In addition, Winters had every reason to lie about a story that implicated others in the hotel robbery, because the police knew that one of the perpetrators (Fosselman) was connected to her. During the probation search of Winter’s room on January 18, 2002, officers discovered .23 grams of methamphetamine, 17 grams of marijuana, a scale, and many Ziploc bags. As a result, Winters was arrested and at the jail following her arrest, she first told officers her story about Fosselman’s and Sweat’s statements about the robbery. Winters was facing drug and felony check fraud charges at the time she testified at trial.
By our review of the circumstances surrounding Sweat’s and Fosselman’s statements to Winters, we do not view the statements as so reliable for confrontation purposes that cross-examination of the declarants would have been “superfluous.” The statements here were not such that “the declarant’s truthfulness [was] so clear from the surrounding circumstances that the test of cross-examination would be a marginal utility . . . .” (Idaho v. Wright (1990) 497 U.S. 805, 820; Lilly, supra, 527 U.S. at p. 136.) Indeed, cross-examination could have explored many questionable and vague aspects of the statements, such as what Fosselman meant exactly by Landry being “there,” and “involved,” and “with” him; why Fosselman only told Winters about Landry’s involvement, and only in private; why Sweat only told Winters, and not Richardson and Yarber, that there was a fourth person involved, who the fourth person was, and what the fourth person did. The statements and the circumstances under which they were made are sufficiently questionable to warrant cross-examination to determine whether they were true and what exactly they meant.
We do not find Sweat’s and Fosselman’s statements to Winters to be sufficiently trustworthy such that they should be admissible as declarations against their penal interest. However, even if we were to conclude the statements were declarations against interest, references inculpating Lewis and Landry should have been excised as collateral assertions before the statements were admitted. (Duarte, supra, 24 Cal.4th 603.)
In Duarte, the defendant and an accomplice, Morris, shot at the victim’s house with a nine-millimeter weapon and an assault rifle. A bullet from the assault rifle struck the victim. Ammunition for both weapons was recovered at Morris’s residence. Upon questioning by police, Morris stated that he had committed a drive-by shooting in retaliation for an earlier shooting, but that the wrong house had been shot. He also said that he had used a nine-millimeter weapon, and that he didn’t want to take a chance of hurting anybody so he aimed for the roof. At the defendant’s trial, these statements were admitted as declarations against Morris’s penal interest, although they were redacted to omit any reference to the defendant. A third person, however, testified about the defendant’s involvement in the shooting. (Duarte, supra, 24 Cal.4th at pp. 607-609, 611-613.)
Our Supreme Court held that the trial court erred by admitting Morris’s redacted statements because portions of those statements were not “specifically disserving to Morris.” (Duarte, supra, 24 Cal.4th at p. 612.) The court explained that Morris’s statements actually “tended sympathetically to describe Morris’s participation in the shooting of the [victim’s] residence, to minimize his responsibility for the injuries caused thereby and to imply that others who were or might become implicated should bear a greater share of the responsibility.” (Id. at p. 613, fn. omitted.) The court concluded that because the declarant’s statements were “ ‘in part inculpatory and in part exculpatory’ ” and thus not specifically disserving to the declarant’s interests, they should not be admitted in their entirety, and instead excised as to the portions that shifted blame from the declarant. (Id. at p. 612.)
As stated in Duarte: “we long ago determined that ‘the hearsay exception should not apply to collateral assertions within declarations against penal interest.’ [Citation.] In order to ‘ “protect defendants from statements of unreasonable men if there is to be no opportunity for cross-examination,” ’ we have declared [Evidence Code] section 1230’s exception to the hearsay rule ‘inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.’ [Citations].” (Duarte, supra, 24 Cal.4th at p. 612.)
Here, there is no question that if Sweat and Fosselman’s statements about the robbery are considered declarations against their penal interest, the portions of the statements that are not specifically disserving of them should have been excised before the statements were admitted into evidence. Specifically, any reference to Lewis participating or Landry being there is not disserving to Sweat’s and Fosselman’s penal interest, and is collateral to the statement. As such, under Duarte, the portions referring to Lewis and Landry should have been excised from the statements.
With regard to the statements made my Sweat and Lewis to Lydell Yarber and Antwan Richarson while they were all in custody, the trial court found that them trustworthy because “they [were] apparently friends of some of the defendants, fellow gang members, they were all in custody at the same time, they apparently were sharing information about cases that have landed them there, sharing police reports, and there was simply nothing to suggest that the statements made to them were not trustworthy . . . .”
The trial court’s observations of the in custody statements and the conclusion that they are trustworthy appear to be correct. Although the same concerns stated above regarding gang members embellishing their involvement in crimes exist, there does not appear from the circumstances of the discussions that Sweat or Lewis were embellishing. The “bragging” that was occurring with Winters as Fosselman’s girlfriend was not present in the discussions among Yarber, Richardson, Sweat and Lewis while they were in custody. Therefore, the trial court’s conclusion that Sweat’s and Lewis’s statements to Yarber and Richardson were statements against penal interest is correct.
In sum, Sweat’s statements to Winters regarding Lewis and Landry’s involvement in the robbery were improperly admitted against Lewis and Landry, and violated their right to Confrontation, because Sweat was a non-testifying codefendant. (Bruton, supra, 391 U.S. 123). Because the error in admitting Sweat’s statements implicates the constitutional right to Confrontation, it must be evaluated under the federal standard and shown to be “harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24; Lilly, supra, 527 U.S. at pp. 139-140.)
With regard to Lewis, we find the error harmless beyond a reasonable doubt, because the court properly admitted his statements to Yarber that he committed the robbery. That admission, coupled with the additional evidence against him supported the convictions without the use of Sweat’s statement. (See discussion of sufficiency of evidence to support Lewis’s convictions infra.)
With regard to Landry, however, the error was not harmless beyond a reasonable doubt. Essentially, the only evidence against Landry were the statements made by Sweat and Fosselman. These statements linked Landry to the crime by implicating that there was a fourth person involved, and the Landry was there. Without these statements, there is little more than “guilt by association” to connect Landry with the crimes, and as such, the admission of the statements was not harmless beyond a reasonable doubt. (See discussion regarding sufficiency of evidence to support Landry’s convictions infra.)
Fosselman’s and Sweat’s statements to Winters regarding the robbery were improperly admitted as statements against penal interest, because they did not have particularized guarantees of trustworthiness. However, even if they were properly considered declarations against penal interest, the portions of the statements that referred to Lewis and Landry’s involvement in the robbery were collateral to the statements, and should have been excised. (People v. Duarte, supra, 24 Cal.4th 603, 614.) Because error in admitting Fosselman’s statements to Winters was a violation of Evidence Code section 1230 and state hearsay rules, the standard for reversal is whether it is reasonably probable defendant would have received a result more favorable to him in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836-837; Duarte, supra, 24 Cal.4th at pp. 618-619.) As this is a lighter standard than the federal standard discussed above, and we deemed the error in admitting the statements harmless as to Lewis, we conclude it is not reasonably probable Lewis would have received a more favorable result absent the error. With regard to Landry we found the error in admitting the statements was not harmless beyond a reasonable doubt under the federal standard, and, as such, we find it is reasonably probable he would have received a more favorable result absent the error.
Sweat’s and Lewis’s statements to Yarber, and Sweat’s statements to Richardson were properly admitted as statements against their penal interest.
Sufficiency of evidence
Sweat contends “the evidence in the case was solely circumstantial and was insufficient to establish that any crime had been committed by Todd Sweat[.]” Landry asserts the evidence presented was constitutionally insufficient to support his convictions. He argues that the prosecution’s “guilt by association evidence” was insufficient to corroborate Fosselman’s statements to Winters that there were four people involved in the robbery, not just the three shown on the hotel security tape, and that Landry was that fourth person. Lewis joins in both Sweat and Landry’s arguments.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson[, supra,] 26 Cal.3d 557, 578 . . . .) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 . . . .) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 . . . .) ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ (Id. at pp. 792-793.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Sweat and Lewis
The record shows the evidence was sufficient to support Sweat and Lewis’s convictions for robbery and false imprisonment. Three men went inside the hotel while armed with a handgun and wearing gang colors, and while attempting to hide their identities. They took cash from the hotel and personal items belonging to the hotel clerk, including his driver’s license, after ordering the clerk at gunpoint to lie down on the floor. At one point, the clerk tried to get up and one of the men told him to stay down. The clerk’s driver’s license was found inside the Cavalier which was abandoned by Fosselman and Sweat just hours after incident occurred.
The court instructed the jury that, in order for the jury to find that a defendant committed a robbery, they had to find: “1. A person had possession of property of some value however slight; [¶] 2. The property was taken from that person or from his immediate presence; [¶] 3. The property was taken against the will of that person; [¶] 4. The taking was accomplished either by force or fear; and [¶] 5. The property was taken with the specific intent permanently to deprive that person of the property.” (See CALJIC No. 9.40.)
The court instructed that, in order for the jury to find that a defendant committed a false imprisonment, they had to find: “1. A person intentionally and unlawfully restrained, confined, or detained another person, compelling him to stay or go somewhere; [¶] 2. The other person did not consent to the restraint, confinement or detention; and [¶] 3. The restraint, confinement, or detention was accomplished by violence or menace.” (See CALJIC No. 9.60.)
In addition, Fosselman and Sweat met up with Winters shortly after the incident and sometime later, after Winters met Lewis in Stockton, she recognized him as the person she saw in the Cavalier with Sweat and Fosselman in the hours just before the hotel robbery incident. While they were in jail, Lewis admitted to Yarber that he, Sweat and Fosselman did the robbery. Sweat showed Richardson the police report and told him what happened. In addition, Sweat told Yarber that he had handcuffed the victim.
The circumstances presented reasonably support the findings by the jury that Fosselman, Sweat and Lewis went inside the hotel and committed a planned robbery. The circumstances presented also support the findings that the robbers falsely imprisoned the hotel clerk during the robbery. We find there was substantial evidence to support Sweat and Lewis’s convictions in this case.
Landry
The basis for Landry’s conviction for robbery and false imprisonment was as an aider and abettor. “A person who aids and abets the commission of a criminal offense is considered a principal in the crime. (§ 31.) In order for criminal liability to be imposed under an aiding and abetting theory, the person must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]’ [Citation.]” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740 (Swanson-Birabent)).
“The ‘act’ required for aiding and abetting liability need not be a substantial factor in the offense. ‘ “Liability attaches to anyone ‘concerned,’ however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal.” [Citation.]’ [Citation.] ‘It has been held, therefore, that one who is present for the purpose of diverting suspicion, or to serve as a lookout, or to give warning of anyone seeking to interfere, or to take advantage of an automobile and to keep the engine running, or to drive the “getaway” car and to give direct aid to others in making their escape from the scene of the crime, is a principal in the crime committed. [Citations.]’ [Citation.]” (Swanson-Birabent, supra, 114 Cal.App.4th at pp. 743-744.)
Essentially the evidence against Landry can be summed up from Winters’s testimony as: Sweat saying there was a fourth person involved, and Fosselman saying that Landry was “there.”
With regard to Landry, there is no other evidence to support a conviction for the robbery under the prosecution’s theory that he was an aider and abettor other than the testimony of Star Winters about statements made by Sweat and Fosselman. Indeed, the surveillance tape from the Holiday Inn showed only three perpetrators of the robbery. In addition, when Sweat talked to fellow jail inmates Richardson and Yarber, Sweat named only three people involved in the robbery: himself, Fosselman, and Lewis; he said nothing about Landry. When Lewis talked to Yarber about the robbery, Lewis did not mention Landry as being involved.
The evidence used to convict Landry is problematic from two perspectives. First, it is inadmissible as statements by a codefendant (Sweat) under Bruton, supra, 391 U.S. 123; and an accomplice (Fosselman) under Roberts, supra, 448 U.S. 56, and Lilly, supra, 527 U.S. 116, because the statements do not fall within an exception to the hearsay rule, and they do not contain particularized guarantees of trustworthiness. In addition, even if the statements are admissible against Landry, when viewed in the light most favorable to the prosecution, the evidence is not sufficient to support Landry’s robbery conviction under an aider and abettor theory.
The statements admitted to prove Landry’s involvement in the robbery should not have been admitted as hearsay exceptions, because they were collateral to Fosselman’s statement against interest (that he committed the robbery), and did not “specifically disserv[e] to the interests of [Fosselman].” (Duarte (2000) 24 Cal.4th 603, 612.) The portion of the statements that was not specifically disserving to Fosselman’s penal interest (that Landry was “there”), should have been excised from the statement before it was admitted. (Ibid.)
In addition to not qualifying under an exception to the hearsay rule, the statements do not have the guarantees of trustworthiness necessary for admission; Fosselman was the only person who identified Landry as the fourth person at the robbery, and he had a motivation to embellish his story. This is particularly evident in light of the context of his statements. Fosselman first identified Landry while privately bragging to his 18 year old girlfriend about the robbery one week after it happened.
Without Fosselman’s statements implicating Landry, the record contains very little evidence linking Landry with the crimes. Indeed, the totality of the evidence is little more than innuendo and guilty by association, and can be summed up as follows: there were telephone calls from Fosselman, Sweat, and Lewis, to Landry in the hours before and after the hotel robbery; Winters saw Lewis and a fourth person, an older gentleman, in the Cavalier with Fosselman and Sweat just a few hours before the hotel robbery, but did not identify that person as Landry; as Fosselman, Sweat and Lewis were leaving the hotel after the robbery, one of them told the clerk not to call the police because somebody was outside watching to see if he did; the hotel clerk’s driver’s license was found inside the Cavalier and Landry’s fingerprint was found on the Cavalier, which was abandoned by Sweat and Fosselman just hours after the robbery occurred; and Landry is Lewis’s uncle.
The assumption the prosecution wishes us to make from the innuendo evidence is that Landry was the lookout and “getaway” driver for the robbery, waiting in the car while the robbery and false imprisonment took place. However, in order to arrive at that conclusion and find that Landry was an aider and abetter, we must leap from phone calls before and after the robbery and a fingerprint, to Landry sitting in the car and waiting for the robbery to occur and serving as the get-away driver. There is not enough evidence to make that leap in logic.
Moreover, even if Fosselman and Sweat’s statements were admissible against Landry, they were simply not enough to support his conviction for robbery and false imprisonment. In order to be guilty as an aider and abettor to the robbery in this case, Landry would have to be proven to have “ ‘act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.] The jury must [have found] ‘the intent to encourage and bring about conduct that is criminal . . . .’ ” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.) There is no evidence that Landry did anything to act with intent or purpose of committing the crimes in this case.
Given the suspect nature of Fosselman’s statement to Winters that Landry was “there,” coupled with the lack of any additional corroborating evidence of his participation, Landry’s convictions for aiding and abetting in the robbery and false imprisonment should be reversed.
Gang Evidence and Claim of Instructional Error
All three defendants assert the court improperly admitted the testimony of Detective Sass regarding their association with criminal street gangs because defendant Sweat was not allowed “to inquire into her qualifications.” In addition, Landry contends the trial court had a sua sponte duty to instruct the jury to consider the gang evidence only to determine the truth of the gang allegation. Defendants contend that, without the instruction, the jury may have considered the evidence as demonstrating bad character, or a disposition to commit crimes. Alternatively, defendants assert trial counsel rendered ineffective assistance by failing to request such an instruction.
At trial, Detective Sass testified about the origins, membership, and activities of the 408 MOB Crips gang. Detective Sass testified that Lewis is an admitted member of the 4400 Block, a subset of the North Side Ganger Crips criminal street gang. In addition, Detective Sass testified that the Landry family founded the Swamp Dogs, another Crips gang, and that other Crips gang members considered defendant Landry a highly respected member of that gang.
Initially, we note that the record reflects all counsel for defendants participated in voir dire of Detective Sass regarding her qualifications. Therefore, we reject defendant’s argument Detective Sass should not have been permitted to testify because they did not have an opportunity to inquire about her qualifications.
In addition, with regard to defendant’s assertion that the court erred by failing to provide a limiting instruction on the admissibility of Detective Sass’s testimony, we note that although the court should give a limiting instruction on request when evidence is admissible for one purpose and is inadmissible for another purpose, the court has no sua sponte duty to give one. (People v. Jones (2003) 30 Cal.4th 1084, 1116 . . . [no sua sponte duty to give instruction limiting gang membership evidence]; People v. Collie (1981) 30 Cal.3d 43, 63-64 . . . [(Collie)] [no sua sponte duty to give limiting instruction on evidence of past criminal conduct].) Collie, supra, at page 64 . . ., recognizes a possible exception in ‘an occasional extraordinary case in which unprotested evidence . . . is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.’ [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 (Hernandez).)
Contrary to Landry’s claim, this was not an extraordinary case as described in Collie and Hernandez. The gang evidence was not a dominant part of the evidence against defendants, and it was highly relevant to the charged gang enhancement. Accordingly, in the absence of a request by counsel, the trial court did not err in failing sua sponte to give a limiting instruction on the evidence admitted to support the gang enhancement.
In the alternative to arguing the court erred by failing to sua sponte offer a limiting instruction on the gang testimony, Landry, joined by Lewis and Sweat, also contends that counsel were ineffective in not requesting such instruction. “ ‘To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, failing below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’ [Citation.] ‘If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.’ [Citation.] On this record, we cannot say counsel were deficient for not requesting a limiting instruction on the gang testimony. ‘A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.’ [Citations.]” (Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) Here, there was not a suggestion that the gang evidence could be used to show defendants were of bad character. “Under the circumstances, defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used.” (Id. at p. 1053.) Because we find a reasonable attorney could decide not to request a limiting instruction, we reject defendants’ claim of ineffective assistance of counsel.
Other Claims of Evidentiary Errors
Sweat, joined by Lewis, asserts the court prejudicially erred in admitting “phone calls[,] letters, tapes, CD’s” over objection,” because such evidence was hearsay and did not fall within an exception. The evidence that was admitted included redacted letters written by Richardson and Sweat to each other, by Yarber to Lewis, by Sweat to Paul Dawson, and by Landry to Lewis. The prosecutor also sought admission of edited tape-recorded telephone calls made by Sweat, Lewis, and Landry from jail. The court ruled that the redacted letters and edited telephone calls that it would admit were admissible because they were either admissions of a party (see Evid. Code, § 1220), prior inconsistent statements of a witness (see Evid. Code, § 1235), or not offered for the truth of the matter stated (see Evid. Code, § 1200, subd. (a)).
Other than to assert that the evidence was inadmissible hearsay,Defendants make no reasoned argument why the court’s admitting the redacted letters and phone conversations resulted in a miscarriage of justice. The redacted letters and edited phone calls demonstrated only defendants’ acquaintance with and/or comments to Yarber, Richardson and Dawson, and of defendants’ knowledge of the police investigation as recounted in the police reports and at the preliminary hearing. As a reviewing court, we may not set aside a verdict, or reverse a judgment, due to the erroneous admission of evidence unless we find that the error resulted in the miscarriage of justice. (Evid. Code, § 353.) After reviewing the record as a whole, including the redacted letters and edited telephone conversations, we are not convinced that admission of the evidence resulted in a miscarriage of justice.
In addition to asserting that the redacted letters should not have been admitted, Sweat also argues the court should not have admitted the recording of O’Connell’s call to 911 after the robbery, because the contents of the call were more prejudicial than probative, and did not qualify as an excited utterance under Evidence Code section 1240.
Initially, we find the trial court did not err under Evidence Code section 352 in admitting the 911 tapes. The statements were probative of the contested issue of the charged robbery and corroborated O’Connell’s testimony at trial. Moreover, the statements were not unduly prejudicial such that they should be barred from admission.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Additionally, the 911 call is admissible under spontaneous statement exception to the Hearsay rule. Evidence Code “[s]ection 1240 is the codification of an established common law exception to the hearsay rule. [Citation.]” (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) “ ‘The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is “that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief.” ’ [Citation.]” (Ibid.)
“Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court ‘necessarily [exercises] some element of discretion . . . .’ [Citation.]” (Poggi, supra, 45 Cal.4th at p. 318.)
The trial court did not abuse its discretion in finding that O’Connell’s statements were spontaneous within the meaning of Evidence Code section 1240. There is no question that O’Connell’s statements during the 911 call describe his perception and the circumstances of the robbery. The lapse of time alone between the robbery and O’Connell’s 911 call does not deprive his statements during the call of spontaneity. In fact, “ ‘[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ [Citation.]” (People v. Raley (1992) 2 Cal.4th 870, 893.) The statements were made by a robbery victim who had been handcuffed and left behind a closed office door, unable to see if the robbers were still present. It was not until a hotel guest came to ask for assistance, and O’Connell was able to get a fellow employee to unhandcuff him, that he could make the 911 call. O’Connell’s statements were properly admitted under Evidence Code section 1240.
Even though admissible as spontaneous statements, the admissibility of O’Connell’s statements during the 911 call must be analyzed in light of Crawford, supra, 541 U.S. 36. As we stated in footnote 8 ante, prior to Crawford, the admission of a hearsay statement under a firmly-rooted exception to the hearsay rule or when there were indicia of reliability did not violate a defendant’s right of confrontation. (Roberts, supra, 448 U.S. at p. 66.) After Crawford, a “nontestimonial” hearsay statement continues to be governed by the Roberts standard, but the admission of a “testimonial” hearsay statement constitutes a violation of a defendant’s right of confrontation unless the declarant is unavailable to testify at trial and the defense had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68; Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266] (Davis).)
We have already found that O’Connell’s statements during the 911 call were properly admitted under Evidence Code section 1240, a firmly-rooted exception to the hearsay rule. We need not decide whether O’Connell’s statements during the 911 call were testimonial (see Davis, supra, ___ U.S. ___ [126 S.Ct. 2266] [statements in response to interrogation during a 911 call are not testimonial as long as they are describing an ongoing emergency]) as O’Connell was unavailable to testify at trial because he was on active duty outside the country and the defense did have an opportunity for cross-examination of him prior to trial. O’Connell’s preliminary hearing testimony, in the form of questions and answers, was read to the jury, and the procedure was agreed to by all parties because of O’Connell’s unavailability. The trial transcript indicates that all defense counsel had an opportunity to, and did, cross-examine O’Connell during the preliminary hearing. Therefore, O’Connell’s statements were properly admitted under the Crawford standard.
Batson/Wheeler Motion
Sweat, joined by Landry and Lewis, asserts there is a prima facie case of deliberate systematic exclusion by the prosecutor’s peremptory challenges of two African-American jurors and three jurors with Hispanic surnames.
“ ‘ “Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution. [Citations.]” ’ [Citation.] In a recent decision, the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. ‘First, the defendant must make out a prima facie case by “showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ (Johnson v. California (2005) 545 U.S. 162, 168 . . ., fn. omitted (Johnson).)” (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, see also People v. Guerra (2006) 37 Cal.4th 1067, 1100.)
Inferences that discrimination may have occurred are sufficient to establish a prima facie case under Batson. (Johnson, supra, 545 U.S. at p. 168.) “Batson, . . . explicitly stated that the defendant ultimately carries the ‘burden of persuasion’ to ‘ “prove the existence of purposeful discrimination.” ’ [Citations.] This burden of persuasion ‘rests with, and never shifts from, the opponent of the strike.’ [Citation.] Thus, even if the State produces only a frivolous or utterly nonsensical justification for its strike, the case does not end—it merely proceeds to step three. [Citation.] The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant’s constitutional claim. ‘It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ [Citation.]” (Johnson, supra, 545 U.S. at pp. 170-172, fns. omitted.)
Here, although the trial court found that defendants had not established a prima facie case under Batson, it invited the prosecutor to state on the record his justification for the peremptory challenges. The prosecutor stated that the first African-American juror was excluded in part because she was very young and living with her mother, who has a boyfriend serving time in prison for robbery and false imprisonment. The other African-American juror was excused in part because he demonstrated that he had difficulty following instructions, he was very quiet, and he was very hesitant to answer questions. The Hispanic-surname jurors were excused because one had been challenged for cause by the defense and was hesitant about leaving her special education children, another had legal experience in the Marine Corps, and the third had served on a hung jury.
The court responded: “As I said, I don’t think the defense has stated a prima facie case. However, I do think that the reasons expressed by [the prosecutor] are race-neutral, and if I had found that a prima facie case had been made by the defense, I would find that the race-neutral reasons given by the prosecution for the challenge of each of the specific jurors does not indicate that there was a purposeful racial discrimination, and I do think the fact that the defense did try to excuse for cause [the one juror] and now is complaining because [the prosecutor] did excuse her, if there was anyone other than [that juror] who wanted to get off this jury worse than [that juror], I don’t recall who it was.”
The record does not demonstrate the prosecutor excused the two remaining African-American prospective jurors and three Hispanic surnamed jurors on the basis of their race or ethnicity. The justifications the prosecutor gave for striking the jurors were specific and race-neutral; they were not frivolous or utterly nonsensical. “Even seemingly ‘ “highly speculative” ’ or ‘ “trivial” ’ grounds may support the exercise of a peremptory challenge. [Citations.]” (People v. Ervin (2000) 22 Cal.4th 48, 77.) We find the record supports the trial court’s findings that the prosecutor’s reasons were genuine and not based on race. (Guerra, supra, 37 Cal.4th at p. 1109.)
Prosecutorial Misconduct
In his opening brief, Sweat, joined by Lewis, contends that the prosecutor committed misconduct when he struck all the African-American jurors. Sweat also contends that the prosecutor “continually said the case was about fear and violence when no one was harmed.”
We have previously found that the prosecutor did not commit misconduct by striking the two African-American jurors remaining after excusals for hardship. Moreover, Sweat does not support his assertion that the prosecutor continually said that the case was about fear and violence with citations to the record. Although the prosecutor did begin his opening statement with: “This case exists within a world or fear and violence,” he went on to explain that he was talking about the “criminal sub-culture within this community that many of you [jurors] are not familiar with.” “[I]t’s been provided to you not only, one, because there is a gang enhancement alleged in this case, but it also puts into perspective as to why certain witnesses testified different ways and also what credibility should be given to their statements when they come to testify before you regarding fear and so forth.”
A “ ‘prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, so long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.’ ” (People v. Sanders (1995) 11 Cal.4th 475, 527.) We do not find the prosecutor’s argument inflammatory or aimed at arousing the passion or prejudice of the jury, and as a result, we find no prosecutorial misconduct.
Sweat’s counsel requested permission to file a supplemental brief regarding the sentencing error at oral argument. We granted permission, and allowed the Attorney General to file a supplemental reply brief.
The United States Constitution requires that any factor increasing the penalty for a crime beyond the statutory maximum (other than a prior conviction) must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); U.S. Const. 6th & 14th Amends.) The relevant statutory maximum is the maximum sentence a judge may impose without any additional findings. (Blakely v. Washington (2004) 542 U.S. 296, 303-304 (Blakely).)
The record reflects that Sweat was sentenced on the second degree robbery conviction to the aggravated term of five years, a consecutive 10 years for his personal use of a firearm, and a consecutive 10 years for the criminal street gang enhancement. Sweat asserts the court erred in sentencing him to the aggravated term on the robbery, because the jury did not find the aggravating factors to be true.
Under California’s Determinate Sentencing Law (DSL), where a crime calls for punishment of a lower, middle, or upper term, the trial court must choose the middle term unless the court finds circumstances in aggravation or mitigation warrant imposition of the upper or lower terms. (§ 1170, subd. (b).) A nonexclusive list of circumstances in aggravation is contained in California Rules of Court, rule 4.421. Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), has recently held that the DSL’s system for imposing an upper term is unconstitutional “[b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . . . Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Apprendi, supra,] 530 U.S. [466] at 490 . . . .” (Id. at p. __[127 S.Ct. 856, 868].) Thus, under Cunningham,it would be impermissible to impose an upper term based upon the trial court’s finding, by a preponderance of the evidence, that the crime involved “great violence,” the victim was “particularly vulnerable,” or the defendant “took advantage of a position of trust . . . .” (Cal. Rules of Court, rule 4.421(a)(1), (3), (11).)
In this case, however, the trial court relied upon the fact that “[Sweat] was on parole at the time of the commission of this offense and he is receiving concurrent sentences for the other charges.” (Cal. Rules of Court, rule 4.421(a)(7).) Moreover, a review of Sweat’s probation report indicates that no mitigating factors were present. These were the only facts upon which the trial court relied. The court could tell from the jury’s verdict that the defendant was convicted of more than one crime. And whether the two crimes could be sentenced consecutively is not a factual question at all. The trial court’s reasoning has survived Cunningham.
Blakely described three types of facts that a trial judge may properly use to impose an aggravated sentence: (a) “ ‘the fact of a prior conviction’ ” (Blakely, supra, 542 U.S. at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the defendant” (ibid., italics omitted). Unlike other facts relating to the crime listed in California Rules of Court, rule 4.421(a), the conviction of other crimes for which consecutive sentences could have been imposed is a fact reflected in the jury verdict, i.e., the jury found Sweat guilty, beyond a reasonable doubt, of more than one offense. As a matter of law, the trial court could have ordered the terms for the two convictions to run consecutively. (§§ 669, 1170.1, 654.) Therefore, the factual basis for imposing the upper term is the jury’s finding, beyond a reasonable doubt, that defendant committed two crimes. Accordingly, the sentence does not violate Apprendi, Blakely, or Cunningham.
Disposition
Landry’s conviction is reversed. The judgment is affirmed with regard to Lewis and Sweat.
I CONCUR: PREMO, J.
BAMATTRE-MANOUKIAN, J., concurring and dissenting.
I. INTRODUCTION
Defendant Todd Darcy Sweat, also known as “Coolade,” is an admitted member of the 408 Mob Gangster Crip gang (408 MOB) in San Jose. Lorenzo Fosselman, also known as “LJ” (Fosselman) and Paul Dawson are members of the 408 MOB who have prior gang convictions. Lydell Yarber and Antwan Richardson are associated with the 408 MOB. Defendant Willie Pepe Lewis, also known as “Pep,” is an admitted member of the 4400 Block Crip gang, a subset of the North Side Gangster Crips, a gang in the Stockton area. Fosselman and Lewis were acquainted with each other prior to January 18, 2002. Lewis’s uncle, defendant Karl Wayne Landry, also known as “Slick,” is a member of the Swamp Boys, another Crip gang in San Jose. Eighteen-year-old Star Winters was Fosselman’s girlfriend on January 18, 2002.
On January 18, 2002, a robbery occurred at a Holiday Inn in San Jose. Defendants Sweat, Landry, and Lewis were convicted after jury trial of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and false imprisonment (§§ 236, 237), and Sweat and Lewis were also convicted of possession of a firearm by a felon (§ 12021, subd. (a)(1)), as a result of that incident. In addition, the jury found true allegations that the defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a principal personally used a handgun in the commission of the robbery (§ 12022.53, subd. (b)), and that Sweat and Lewis personally used a handgun in the commission of the false imprisonment (§ 12022.5, subd. (a)(1)). The court found true allegations that both Sweat and Lewis had served a prior prison term (§ 667.5), and that Landry had three prior serious felonies (§ 667, subd. (a)), and four prior strikes (§ 1170.12). Sweat was sentenced to 26 years and Lewis to 24 years in state prison. Landry was sentenced to 30 years to life consecutive to 25 years.
Further unspecified statutory references are to the Penal Code.
The original felony complaint in this case also charged Fosselman with second degree robbery and felony false imprisonment, and alleged that he had a prior serious felony conviction that also qualified as a strike. At the time the complaint was filed, Fosselman was in custody in Modesto. There, following a jury trial, Fosselman was convicted of carjacking and was sentenced to state prison for 50 years to life under the Three Strikes law. By the time of the trial in this case, he had been transported to Santa Clara County and had been arraigned on the felony complaint. Prior to trial, the trial court held an Evidence Code section 402 hearing where Fosselman refused to answer any questions about the robbery incident. The court found Fosselman to be unavailable as a witness.
On appeal, Sweat contends that (1) the court erred in admitting gang testimony from an expert witness; (2) there were other prejudicial evidentiary errors; (3) the evidence was insufficient to support his conviction; (4) the trial court erred in denying his Batson/Wheeler motion; and (5) the prosecutor committed misconduct. Sweat also joins in the hearsay, confrontation clause, instructional error, and ineffective assistance claims raised by Landry and Lewis. Sweat has withdrawn his contentions that the trial court erred in denying his motion to disqualify the trial judge and that there was sentencing error. In a supplemental brief filed with leave of court after oral argument, Sweat contends that the court’s imposition of the upper term on the robbery count violates the United States Constitution.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
Sweat’s trial counsel was also his appellate counsel.
Landry contends that (1) the evidence was insufficient to support his convictions; (2) the admission of the hearsay statements by Sweat and Fosselman implicating him in the offenses violated his right to confrontation; and (3) the court erred in failing to give an instruction limiting the use of gang testimony and/or counsel rendered ineffective assistance by failing to request such an instruction. Landry also joins in Lewis’s confrontation clause claim and Sweat’s Batson/Wheeler motion claim.
Lewis contends that the trial court violated his right to confrontation by admitting evidence of out-of-court statements by Sweat and Fosselman implicating him in the offenses. Lewis also joins in “all arguments and issues presented by” Sweat and Landry “which are otherwise applicable or beneficial to him.”
I agree with and adopt the majority’s statement of the facts and the case. I disagree with the majority’s conclusion that the admission of Sweat’s and Fosselman’s statements to Winters implicating Lewis and Landry in the Holiday Inn incident was error. I would find that the statements did not violate the confrontation clause and that they were properly admitted. Therefore, I would not reach the harmless error issue. I further disagree with the majority’s conclusion that the evidence was insufficient to support Landry’s convictions. However, I concur in the majority’s analysis of the defendants’ claims regarding the admission of Sweat’s and Lewis’s statements to Yarber and Sweat’s statements to Richardson, the sufficiency of the evidence supporting Sweat’s and Lewis’s convictions, the gang evidence and instruction, the other evidentiary errors, the Batson/Wheeler motion, the prosecutorial misconduct, and the imposition of the upper term on Sweat. Accordingly, I would affirm the judgments as to all three defendants.
II. DISCUSSION
A. Sweat’s and Fosselman’s out-of-court statements
Prior to trial, after reviewing the tapes and transcripts of the police interviews of Winters, the court ruled that Sweat’s and Fosselman’s out-of-court statements to Winters were admissible as statements against Sweat’s and Fosselman’s penal interests.
The court ruled as follows: “[L]et’s start with Star Winters. She was the girlfriend of Lorenzo Fosselman. He had no reason to lie to her. He and Todd Sweat appeared to be bragging to her about what they had done. She had been around when, apparently, proceeds of another robbery had been split up, and so they obviously trusted her and they were just telling her what had happened. . . . [¶] . . . [¶] I think those statements by Lorenzo Fosselman and Todd Sweat were clearly statements against their penal interest. I think that they were clearly made under circumstances that offer particularized guarantees of trustworthiness and may be admitted.”
On appeal, Landry and Lewis contend that the trial court erred in admitting Sweat’s and Fosselman’s out-of-court statements concerning their involvement in the robbery. They argue that admission of these statements violated their rights under the confrontation clause of the Sixth Amendment, because Sweat was a non-testifying codefendant (see Bruton v. United States (1968) 391 U.S. 123 (Bruton)), and because the statements were not admissible as statements against the declarants’ penal interests. Sweat joins in the argument that admission of the statements violated his rights under the confrontation clause.
The United States Supreme Court has stated that “when deciding whether the admission of a declarant’s out-of-court statements violates the Confrontation Clause, courts should independently review whether the government’s proffered guarantees of trustworthiness satisfy the demands of the Clause.” (Lilly v. Virginia (1999) 527 U.S. 116, 137 (Lilly).) The court rejected the view that “appellate courts should defer to lower courts’ determinations regarding whether a hearsay statement has particularized guarantees of trustworthiness” (id. at p. 136) for purposes of the confrontation clause. In other words, it is our job to independently measure the facts, as found by the trier and supported by substantial evidence, against the appropriate constitutional standard. (See People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
A defendant’s Sixth Amendment right to confrontation, which has been extended to the states through the Fourteenth Amendment, is not absolute. “[C]ompeting interests, if ‘closely examined,’ [citation] may warrant dispensing with confrontation at trial.” (Ohio v. Roberts (1980) 448 U.S. 56, 64 (Roberts).) In Roberts, the court recognized that “ ‘general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case,’ ” adding that “[s]ignificantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings.” (Ibid.)
The veracity of nontestimonial hearsay statements is sufficiently dependable to allow the untested admission of such statements against a defendant when (1) the evidence falls within a firmly rooted hearsay exception or (2) the evidence contains “particularized guarantees of trustworthiness” such that adversarial testing would be expected to add little, if anything, to the statements’ reliability. (Roberts, supra, 448 U.S. at p. 66; Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford).) Defendants concede that Sweat’s and Fosselman’s out-of-court statements are nontestimonial hearsay, and I find the concession appropriate. (Crawford, supra, 541 U.S. at p. 68; cf. People v. Castille (2005) 129 Cal.App.4th 863 (Castille).)
“In California, ‘[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.’ ([Evid. Code,] § 1230.) The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]” (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).)
“ ‘To determine whether [a particular] declaration [against penal interest] passes [Evidence Code][section 1230’s] required threshold of trustworthiness, a trial court “may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.” ’ [Citation.] We have recognized that, in this context, assessing trustworthiness ‘ “requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.” ’ [Citation.]” (Duarte, supra, 24 Cal.4th at p. 614.)
“There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against [penal] interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry. [Citations.]” (People v. Greenberger (1998) 58 Cal.App.4th 298, 334 (Greenberger).) “When examining what was actually said by the declarant special attention must be paid to any statements that tend to inculpate the nondeclarant. This is so because a statement’s content is most reliable in that portion which inculpates the declarant. It is least reliable in that portion that shifts responsibility. Controversy necessarily arises when the declarant makes statements which are self-inculpatory as well as inculpatory of another. This is why Evidence Code section 1230 only permits an exception to the hearsay rule for statements that are specially disserving of the declarant’s penal interest. [Citation.] This is not to say that a statement that incriminates the declarant and also inculpates the nondeclarant cannot be specifically disserving of the declarant’s penal interest. Such a determination necessarily depends upon a careful analysis of what was said and the totality of the circumstances. [Citations.]” (Id. at p. 335.)
“The United States Supreme Court concluded in Bruton v. United States, supra, 391 U.S. at page 125 . . . that admission of extrajudicial statements of a codefendant in a joint trial violated the nondeclarant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment even though the statement was received only against the declarant. The court reasoned that limiting instructions, while useful in many situations, could not adequately ensure that the jury would not use this evidence in deciding the case of the nondeclarant. The court concluded: ‘The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.’ (Id. at p. 136 . . . .) Roberts v. Russell (1968) 392 U.S. 293 . . . extended the holding of Bruton to prosecutions under state law.” (Greenberger, supra, 58 Cal.App.4th at p. 331, fn. omitted.)
“In Lee v. Illinois (1986) 476 U.S. 530 . . . the court dealt with confessions made by each defendant implicating the other and used as substantive evidence against both tried jointly. The court observed that ‘. . . this is not strictly speaking a Bruton case because we are not here concerned with the effectiveness of limiting instructions in preventing spill-over prejudice[.]’ (Id. at p. 542 . . . .) The court concluded that, although such confessions were presumed to be unreliable, the presumption could be rebutted if the confession is shown to have particularized guarantees of trustworthiness. (Id. at p. 543 . . . .) The dissenting opinion of Justice Blackmun pointed out that ‘[t]he Bruton rule thus necessarily applies only to situations in which the out-of-court statements are constitutionally inadmissible against the defendant.’ (Id. at p. 552, fn. 5 . . . .)” (Greenberger, supra, 58 Cal.App.4that p. 332.)
The Court of Appeal in Greenberger considered out-of-court statements made by some defendants implicating some other defendants. The court held that “a defendant’s declarations against [penal] interest may be received in a joint trial without denying the codefendant the right of confrontation guaranteed by the United States Constitution.” (Greenberger, supra, 58 Cal.App.4th at p. 314.) “There is nothing in Bruton which prohibits introduction of such evidence.” (Id. at p. 332.) “A careful reading of Bruton and its progeny reflects a body of law which has dealt with the use of limiting instructions to prevent inadmissible and highly prejudicial evidence from infecting the case of the jointly tried codefendant. Bruton does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial. The Bruton opinion itself stated that the hearsay statement in that case was clearly inadmissible against the nondeclarant under traditional rules of evidence, and that there was no recognized exception to the hearsay rule for its admission. The court went on to state that ‘we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.’ [Citation.]” (Id. at pp. 331-332.)
“Since declarations against [penal] interest may be admitted in evidence without doing violence to the confrontation clause, we see no reason why such declarations, when made by a codefendant, should not also be admissible.” (Id. at p. 332.) “[A] declaration against [penal] interest may be admitted in a joint trial so long as the statement satisfies the statutory definition and otherwise satisfies the constitutional requirement of trustworthiness.” (Id. at p. 334.) “In determining the particularized guarantees of trustworthiness, consideration of corroborating evidence is inappropriate since that would constitute ‘bootstrapping on the trustworthiness of other evidence at trial.’ [Citation.]” (Id. at p. 336.)
Although at oral argument defendants appeared to concede and the Attorney General agreed that Greenberger has not been overruled, Landry argues in his brief that “Greenberger is no longer good law after Lilly,” and Lewis argues in his brief that the Greenberger court “seriously misread the U.S. Supreme Court’s confrontation clause jurisprudence.” In Lilly, a plurality of the United States Supreme Court held that “accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” (Lilly, supra, 527 U.S. at p. 134.) The plurality expressly stated, however, that “[t]his, of course, does not mean, . . . that the Confrontation Clause imposes a ‘blanket ban on the government’s use of [nontestifying] accomplice statements that incriminate a defendant.’ Rather, it simply means that the government must satisfy the second prong of the Ohio v. Roberts, 448 U.S. 56 (1980), test[, that the statements bear a particularized guarantee of trustworthiness,] in order to introduce such statements.” (Id.at p. 135, fn 5.)
In United States v. Boone (9th Cir. 2000) 229 F.3d 1231 (Boone), a nontestifying accomplice, Williams, inculpated himself and the defendant in a robbery while reminiscing to Williams’s girlfriend. (Id. at p. 1232.) The trial court admitted Williams’s statements as a statement against interest, an exception to the hearsay rule under Federal Rule of Evidence 804(b)(3). On appeal the defendant argued that admission of Williams’s out-of-court statements violated the defendant’s confrontation rights, relying primarily on Lilly. (Id. at p. 1233.) The Ninth Circuit found that the statements were properly received into evidence as the circumstances attendant to the making of Williams’s statements provided a particularized guarantee of trustworthiness. (Id. at p. 1234.) “Boone fails to acknowledge the significant distinctions between Lilly and this case. Lilly dealt with a confession obtained by police during an in-custody interrogation. [Citation.] Here, the taped conversation between Williams and his girlfriend occurred in what appeared to Williams to be a private setting and in which, as far as he knew, there was no police involvement. He simply was confiding to his girlfriend, unabashedly inculpating himself while making no effort to mitigate his own conduct. The circumstances and setting of Williams’s statements distinguish this case from Lilly, as does the content of Williams’s statements. It was unselfconsciously self-incriminating and not an effort to shift the blame.” (Id. at p. 1234.)
In Padilla v. Terhune (9th Cir. 2002) 309 F.3d 614 (Padilla), a witness who was a friend of the defendant and his coconspirators testified that one of the defendant’s coconspirators told him that they had shot the victim when the victim resisted their attempts to rob him. (Id. at p. 618.) In determining whether the admission of the coconspirator’s hearsay statements was error, the Ninth Circuit explained that “Lilly is not relevant because it applies to custodial confessions to police, not to statements against interest in a private setting.” (Padilla, supra, 309 F.3d at p. 620.) The court stated that the residual trustworthiness doctrine of Roberts applied instead, and that it had previously held in Boone that, “when an accomplice makes a statement incriminating the defendant in private, to a friend, without mitigating his own role in the crime, the circumstances surrounding the statement provided a ‘particularized guarantee of trustworthiness,’ which satisfies the Confrontation Clause.” (Padilla, supra, 309 F.3d at p. 618.) The court held that, because the coconspirator’s statement was made voluntarily to a friend, in a private setting, close in time to the shooting, with no effort to mitigate the declarant’s conduct, and with no expectation that it would be disclosed to the police, the admission of the statement did not violate the confrontation clause. (Id. at p. 620.)
In People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes), a nontestifying codefendant, Morales, inculpated himself and his two codefendants, Cervantes and Martinez, in a murder and an attempted murder while speaking to a friend of all three defendants, Ojeda. (Id. at pp. 166-167) On appeal the two codefendants contended that the statement to the friend should have been excluded. (Id. at p. 169.) The appellate court found that the trial court did not err in admitting evidence of the statement at the joint trial. Following Greenberger, the court found that the statement qualified as a declaration against penal interest and satisfied the constitutional standard of trustworthiness. (Id. at p. 177.) “The evidence here showed Morales made the statement within 24 hours of the shooting to a lifelong friend from whom he sought medical treatment for injuries sustained in the commission of the offenses. . . . Regarding the content of the statement, Morales did not attribute blame to Cervantes and Martinez but accepted for himself an active role in the crimes and described how he had directed the activities of Martinez.” (Id. at p. 175.) “Ojeda consistently reported that Morales admitted shooting at the second male with Cervantes. The statement Cervantes shot the first male, as well as the statement Morales shot at the second male, both incriminated Morales because Morales was acting in concert with Cervantes at all relevant times. Thus, the discrepancies in the statement as repeated by Ojeda do not preclude a finding the statement was trustworthy.” (Id. at p. 176.) “Regarding the claim the statement should have been redacted to exclude reference to the nondeclarants, Greenberger specifically held this is not required where the statement admitted into evidence is disserving to the interests of the declarant. We agree with Greenberger’s analysis on this point.” (Ibid.)
Landry and Lewis argue that, even if Sweat’s and Fosselman’s statements were declarations against their penal interest, the statements inculpating them should have been excised as collateral assertions. They rely primarily on Duarte, supra, a case in which the trial court did redact the defendant’s name from an accomplice’s declaration against interest.
In Duarte, the defendant and an accomplice, Morris, shot at the victim’s house with a nine-millimeter weapon and an assault rifle. A bullet from the assault rifle struck the victim. Ammunition for both weapons was recovered at Morris’s residence. Upon questioning by police, Morris stated that he had committed a drive-by shooting in retaliation for an earlier shooting, but that the wrong house had been shot. He also said that he had used a nine-millimeter weapon, and that he didn’t want to take a chance of hurting anybody so he aimed for the roof. At the defendant’s trial, these statements were admitted as declarations against Morris’s penal interest, although they were redacted to omit any reference to the defendant. A third person, however, testified about the defendant’s involvement in the shooting. (Duarte, supra, 24 Cal.4th at pp. 607-609, 611-613.)
Our Supreme Court held that the trial court erred by admitting Morris’s redacted statements because portions of those statements were not “specifically disserving to Morris.” (Duarte, supra, 24 Cal.4th at p. 612.) The court explained that Morris’s statements actually “tended sympathetically to describe Morris’s participation in the shooting of the [victim’s] residence, to minimize his responsibility for the injuries caused thereby and to imply that others who were or might become implicated should bear a greater share of the responsibility.” (Id. at p. 613, fn. omitted.) The court concluded, without deciding whether redaction of the defendant’s name was required, that because the declarant’s statements were attempts to shift the blame to defendant, they were “ ‘in part inculpatory and in part exculpatory’ ” and thus not specifically disserving to the declarant’s interests. (Id. at p. 612.)
Defendants cite no authority, and we have found none, for the proposition that wholesale redaction of mention of a codefendant is required. Cervantes, a case that was decided after Lilly, Crawford, and Duarte, acknowledged their holdings as they apply to admissions that are testimonial hearsay (Cervantes, supra, 118 Cal.App.4th at pp. 170-173), and found that Greenberger’s analysis of the issue of admissions that are nontestimonial hearsay, as the statements in this case are, is still good law.
In the case before us, Fosselman and Sweat first spoke to Winters, Fosselman’s girlfriend, shortly after the robbery and before they were arrested. Winters had seen Fosselman and Sweat drive away from her house and pass by her, and then had seen the police around her house and around Fosselman’s abandoned car, so Fosselman and Sweat explained to her why they were hiding from the police. They appeared to be bragging about what they had done. In doing so, they inculpated themselves and Lewis, as well as a fourth person who they said did not enter the hotel, in a Holiday Inn robbery. Winters had seen Sweat, Lewis and a third person with Fosselman just prior to the robbery. The statements by Fosselman and Sweat were not in part inculpatory and in part exculpatory; they did not shift responsibility for the robbery away from themselves and to Lewis or to the fourth person. Fosselman and Sweat stated only that Lewis was with them inside and that a fourth person was with them outside. They said that they jumped over the counter, that they passed a gun between themselves, that they handcuffed the victim, and that they took his driver’s license, which Sweat said he lost when he ran from the abandoned car. Sweat also said that he tossed the gun in a nearby dumpster after jumping over a fence. The statements clearly subjected Fosselman and Sweat to serious criminal liability and were not an attempt to shift the blame away from themselves and to others that may have been involved. And, although the statements were made in a hotel room, rather than in a Denny’s restaurant as Winters originally reported, both locations were settings such that Fosselman and Sweat had no reason to suspect at the time they made the statements that their statements would be intercepted by the authorities. The discrepancies in Winters’s report of the statements made by Fosselman and Sweat do not preclude a finding that the statements were trustworthy.
Later, Fosselman took Winters with him to Stockton, where she met Landry and Lewis for the first time, although she had seen Lewis and an older gentleman in Fosselman’s car the morning of the robbery. It is undisputed that Fosselman and Lewis had been acquainted prior to the morning of the robbery, and that Landry is Lewis’s uncle. Fosselman again bragged to Winters, outside Lewis and Landry’s presence, about the hotel robbery without stating what Lewis did, other than that he jumped over the counter. Fosselman also stated that Landry was the fourth person involved in the hotel robbery. Fosselman’s statements in Stockton inculpated himself as well as Landry in the robbery; they were not in part exculpatory and they did not shift responsibility for the robbery away from Fosselman and to Landry in any way. The statements also, by implication, confirmed Fosselman’s and Sweat’s earlier statements that they were the ones who went inside the hotel and carried out the robbery with Lewis.
I would find that the statements by Sweat and Fosselman implicating Lewis and Landry were properly admitted by the trial court. The statements by Sweat and Fosselman were made to Fosselman’s girlfriend shortly after the robbery occurred and they provided a detailed account of how the robbery was committed and who was involved in it and in what manner. The statements also described the abandonment of the car after the robbery, of which Winters was already aware. The statements were not made to the police during questioning (compare with Castille, supra, 129 Cal.App.4th 863), and Fosselman and Sweat made no attempt to mitigate their own conduct or to shift the blame to Lewis and Landry. At the time the statements were made, Fosselman and Sweat had no motive to lie or reason to suspect that their statements would be intercepted by the authorities. After independently reviewing the trial court’s determination of the particularized guarantees of trustworthiness (Lilly, supra, 527 U.S. at p. 137), I would find that the statements Fosselman and Sweat made to Winters were against Fosselman’s and Sweat’s penal interests and bear particularized guarantees of trustworthiness. (See Boone, supra, 229 F.3d at p. 1234; Padilla, supra, 309 F.3d at p. 620.) Accordingly, the admission of the statements did not violate the confrontation clause. (Roberts, supra, 448 U.S. at p. 66.)
B. Sufficiency of Evidence Regarding Landry
Landry contends that the evidence presented was constitutionally insufficient to support his convictions. He argues that the prosecution’s “guilt by association evidence” was insufficient to corroborate Fosselman’s statements to Winters that there were four people involved in the robbery, not just the three shown on the hotel security tape, and that Landry was that fourth person.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 . . . .) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 . . . .) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 . . . .)
‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ (Id. at pp. 792-793.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The prosecutor argued that Landry was guilty of robbery and false imprisonment as an aider and abettor. “A person who aids and abets the commission of a criminal offense is considered a principal in the crime. (§ 31.) In order for criminal liability to be imposed under an aiding and abetting theory, the person must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]’ [Citation.]” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740 (Swanson-Birabent)).
“[A]n aider and abettor ‘is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106-107.) In this case the trial court instructed the jury pursuant to CALJIC No. 3.02 as follows: “In order to find a defendant guilty of the crime of felony false imprisonment as charged in Count 2, you must be satisfied beyond a reasonable doubt that one, the crime of second degree robbery was committed; two, that a defendant aided and abetted that crime; three, that a co-principal in that crime committed the crime of felony false imprisonment; and four, the crime of felony false imprisonment was a natural and probable consequence of the commission of the crime of robbery. [¶] Whether a consequence is natural and probable is an objective test based not on what a defendant actually intended but on what a person of reasonable and ordinary prudence would have expected would be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen.”
“The ‘act’ required for aiding and abetting liability need not be a substantial factor in the offense. ‘ “Liability attaches to anyone ‘concerned,’ however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal.” [Citation.]’ [Citation.] ‘It has been held, therefore, that one who is present for the purpose of diverting suspicion, or to serve as a lookout, or to give warning of anyone seeking to interfere, or to take advantage of an automobile and to keep the engine running, or to drive the “getaway” car and to give direct aid to others in making their escape from the scene of the crime, is a principal in the crime committed. [Citations.]’ [Citation.]” (Swanson-Birabent, supra, 114 Cal.App.4th at pp. 743-744.)
In this case, the record as a whole showed that telephone calls were made back and forth between Fosselman, Sweat, and Lewis, and from them to Landry in the hours before and after the hotel robbery. Winters saw Lewis and a fourth person, an older gentleman, in the Cavalier with Fosselman and Sweat just a few hours before the hotel robbery. The Cavalier had been rented by Paul Dawson, a member of the 408 MOB, Fosselman was also a member of the 408 MOB, and Sweat’s name had been added as a driver to the rental agreement for the Cavalier. Fosselman, Sweat and Lewis went inside the hotel and committed the robbery while armed with a handgun and wearing gang colors, and while attempting to hide their identities. They took cash from the hotel and personal items belonging to the hotel clerk, including his driver’s license, after ordering the clerk at gunpoint to lie down on the floor. As they were leaving, one of them told the hotel clerk not to call the police because somebody was outside watching to see if he did. The hotel clerk’s driver’s license was found inside the rented Cavalier and Landry’s fingerprint was found on the Cavalier, which was abandoned by Sweat and Fosselman just hours after the robbery occurred. Fosselman’s fingerprint was found on a paper on the hotel front counter. Fosselman and Sweat bragged to Winters shortly after the robbery, and before they were arrested, that they committed the robbery with Lewis, telling her how they did it and that a fourth person was involved who did not go inside the hotel. Their statements about the robbery were consistent with the victim’s testimony and the hotel security videotape. Later, after Winters met Lewis and Landry in Stockton, Fosselman told Winters that Landry was the fourth person involved, although he did not say this in Landry’s presence. According to Yarber, Lewis said that, at one point in time, which could have been around the time of the robbery, Yarber’s brother gave Lewis and his uncle a ride from San Jose back to Stockton, and Landry is Lewis’s uncle.
Based on a careful and thorough review of the whole record, I would find that “ ‘ “the circumstances reasonably justify the trier of fact’s findings.” ’ ” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) The circumstances presented reasonably support the finding by the jury that Fosselman, Sweat, Lewis and Landry were all involved in the planned hotel robbery, and that Landry was the person who waited outside, acting as a lookout and/or getaway driver. The circumstances presented also support the finding that at least one of the robbers falsely imprisoned the victim during the robbery, an act that was reasonably expected and likely to occur while the robbers looked for and took hotel money. It is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, and it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (Ibid.) As the circumstances presented reasonably justify the jury’s verdicts that Landry was guilty of both robbery and false imprisonment as an aider and abettor, the fact that the circumstances may also support a contrary finding does not warrant reversal of Landry’s convictions. (Ibid.)
Accordingly, after carefully and thoroughly reviewing “the whole record in the light most favorable to the judgment” (People v. Rodriguez, supra, 20 Cal.4th at p. 11; People v. Johnson, supra, 26 Cal.3d at p. 578), I would conclude that the record “discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez, supra, at p. 11; People v. Johnson, supra, at p. 578.)
As I stated above, I agree with the majority’s analysis of the defendants’ remaining claims. However, because I would find, contrary to the majority, that Sweat’s and Fosselman’s statements to Winters were properly admitted and that the evidence is sufficient to support Landry’s convictions, I would affirm the judgment as to all three defendants.