Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F05905147-5, R. L. Putnam, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, J.
STATEMENT OF THE CASE
On November 29, 2005, the Fresno County District Attorney filed a second amended information in superior court charging appellant George Washington, Jr. as follows:
Count I—second degree robbery (Pen. Code, § 211) with personal use of a firearm (§ 12022.53, subd. (b)); and
Count II—possession of a firearm by an ex-felon (Pen. Code, § 12021, subd. (a)(1)) with a prior serious felony conviction (§ 667, subd. (a)(1)).
The district attorney specially alleged appellant suffered two prior felony convictions (Pen. Code, § 667, subd. (a)(1)), two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served a prior prison term (§ 667.5, subd. (b)).
On November 30, 2005, a jury was impaneled.
On December 9, 2005, the jury returned verdicts finding appellant guilty as charged of the two substantive counts and finding the special allegation related to count I to be true.
On December 12, 2005, the court amended the second amended information by interlineation, corrected the docket number of one specially alleged prior conviction, and struck several other prior conviction allegations. Appellant then admitted the truth of one prior felony conviction and one prior strike conviction.
On February 16, 2006, the court denied appellant probation and sentenced him to a total term of 26 years in state prison. The court imposed the doubled upper term of 10 years on count I, a consecutive term of 10 years on the related Penal Code section 12022.53, subdivision (b) enhancement, a consecutive term of one year for a prior prison term (§ 667.5, subd. (b)), and a consecutive term of five years for a prior felony conviction (§ 667, subd. (a)). The court imposed a concurrent sentence of six years on count II (§ 654). The court imposed a $5,200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), ordered appellant to submit to DNA testing (§ 296), imposed a $20 court security fee (§ 1465.8, subd. (a)(1)), and awarded 106 days of custody credits.
We note the substantive crime of possession of a firearm by a felon is listed as count VI on the abstract of judgment filed February 16, 2006. The second amended information set forth two substantive counts: count I—second degree robbery (Pen. Code, § 211) and count II—possession of a firearm by a felon (§ 12021, subd. (a)(1)). According to the reporter’s transcript of the February 16, 2006 sentencing hearing, the court imposed a concurrent six-year term of imprisonment on count II and made no mention of a count VI. In our view, the reference to count VI in the abstract of judgment is simply a typographical error and the superior court is directed to correct the abstract to reflect imposition of a concurrent term on count II and to transmit certified copies of the corrected abstract to all appropriate parties and entities.
On March 8, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Introduction
During a two-week period in November 2004, a number of armed robberies took place at businesses in the city of Fresno. The robbery sites included:
Tower Health on North Fulton Street on November 5, 2004;
Little Caesars Pizza on West Shaw Avenue on November 8, 2004;
Subway Sandwich Shop on North Palm Avenue on November 11, 2004;
Little Caesars Pizza on West Clinton Avenue on November 14, 2004; and
Subway Sandwich Shop on East Gettysburg Avenue on November 16, 2004.
On August 30, 2005, the district attorney filed an information against appellant and codefendant Charles Paul Wilson. The information charged Wilson with weapons possession and multiple counts of robbery, among other things. The information charged appellant with weapons possession and the robbery which occurred on November 8, 2004, at the Little Caesars Pizza on Shaw Avenue. The November 8, 2004, robbery was recorded on a surveillance video. Robert Thomas was a fellow drug user of appellant and Wilson. Appellant allegedly told Thomas about a number of charged and uncharged robberies he had committed with Wilson. The court severed the trials of Wilson and appellant. In appellant’s trial the court admitted evidence of the uncharged robberies to support the credibility of Thomas.
The parties stipulated that the video surveillance cameras were running properly at Tower Health and the Little Caesars Pizza restaurants on West Shaw Avenue and West Clinton Avenue at the time of the respective robberies. The parties further stipulated the surveillance recordings were properly recovered and booked into evidence. The prosecution showed the jury still frames from those video recordings. The parties also stipulated that none of the fingerprints recovered from any of the robberies matched fingerprints in the California fingerprint database or matched the prints of appellant or Wilson.
Evidence of the Charged Offenses
Facts underlying the November 8, 2004 robbery of Little Caesars Pizza on West Shaw Avenue
At 6:15 p.m. on November 8, 2004, Jose Cruz was working at the counter of the Little Caesars restaurant on West Shaw Avenue in Fresno. He looked through the front window and saw two African-American men pacing in front of the restaurant. One of the men was tall and lean and the other was short and stocky. The two men eventually entered the restaurant. The tall man walked around the counter while the short man opened a dark bag and pulled out a silver revolver with a wooden handle. The short man pointed the gun at Cruz and demanded money. Cruz, in shock, handed over some money and one of the robbers grabbed more money from the restaurant cash register. Cruz did not focus on the robbers’ faces because he was preoccupied by the weapon and with providing money to the robbers.
After the robbers left the restaurant, Cruz summoned Fresno police. Cruz told officers the shorter robber was 30 to 35 years of age, had a fade haircut, and wore a baseball cap or a hooded sweatshirt. Cruz said the gun was probably a silver revolver and the entire incident lasted less than a minute. At trial, the parties stipulated that Fresno police recovered latent fingerprints from the Little Caesars restaurant on the date of the robbery and that none matched the fingerprints of appellant or his acquaintances, Charles Paul Wilson, Robert Thomas, and Paul Benefield.
On November 21, 2004, Cruz examined a photographic lineup and identified Wilson as one of the robbers. On September 24, 2005, more than 10 months after the robbery, Cruz viewed another photographic lineup. That lineup had appellant’s picture in the number six position. Cruz said the individual depicted in position number two looked familiar and commented, “It’s been awhile.” However, Cruz did not identify appellant from the lineup. At a prior court hearing, Cruz identified Wilson as the tall robber. At appellant’s trial, however, Cruz testified he did not recognize anyone from the robbery in the courtroom. Cruz also said no one in the courtroom resembled the shorter robber.
At appellant’s trial, Cruz identified People’s exhibit No. 18 as the gun used by the shorter robber. Cruz testified that People’s exhibit No. 19 did not look like the robber’s bag. He said the robber’s bag looked like a bank bag, that being a narrow bag with a zipper on top. At a prior hearing, Cruz described the robber’s bag as having a top zipper. Cruz said the bag he saw looked different than People’s exhibit No. 19 but did resemble it in size.
The parties stipulated that the video surveillance cameras were running properly at the West Shaw location of Little Caesars on November 8, 2004. The jurors watched a videotape, without audio, of still photos of the actual robbery (People’s exhibit No. 2). Cruz viewed the videotape at trial but said it did not refresh his memory of the shorter robber. Robert Thomas testified he recognized appellant and Wilson from the video footage and said appellant was the robber with the gun. He also testified he recognized appellant based on the coat and jeans worn by the robber, the gun he used, and the robber’s hair and facial features. Thomas also said he could see certain details in the image and testified “I see it’s his [appellant’s] nose.”
At trial, Fresno Police Detective Raymond Camacho, the chief investigating officer, testified the videotape of the robbery depicted a tall, lean assailant and a shorter assailant. Camacho said appellant and Charles Wilson positively matched those subjects. In Camacho’s opinion, Robert Thomas was not depicted in the videotape because Thomas was bald and had a rounder head and stockier build than the robbers in the videotape. In Camacho’s view, People’s exhibit No. 18A resembled the gun in the video because it was a silver revolver. However, Camacho acknowledged that exhibit No. 18A might not necessarily be the same weapon as that used by the robbers.
People’s exhibit No. 18 consisted of a white evidence box containing People’s exhibit No. 18A. People’s exhibit No. 18A consisted of a Smith & Wesson .38 special.
Facts underlying the arrest and investigation
On the evening of November 16, 2004, Fresno Police Sergeant Elizabeth Marmolejo was on patrol duty. Sergeant Marmolejo was supervisor of the Northwest District Crime Suppression Team, which focused on serial crimes. That evening she noticed a Jeep Cherokee that matched the description of a suspect vehicle in a police briefing bulletin. The briefing bulletin described the vehicle as being a light brown or tan Jeep Cherokee.
Sergeant Marmolejo identified the suspect vehicle from photographs introduced into evidence in court.
Sergeant Marmolejo followed the Jeep, radioed the license number to dispatch, summoned other units, and the police stopped the Jeep without incident. Officers found three men inside the Jeep. Appellant, a middle-aged African-American male, was in the driver’s seat. Robert Thomas, another African-American male, was in the front passenger seat. Bennie Fuentes, a Hispanic male adult, was in the rear passenger seat.
Appellant handed Sergeant Marmolejo a driver’s license bearing the name of Glenn Bernard Washington. However, the photograph on the license did not resemble appellant. Marmolejo thought appellant resembled a circulated photograph that had been taken from a surveillance tape of the recent robberies. As she talked to appellant, Fuentes began to conceal a long, narrow object between the car seats. Officers later determined the object was a hypodermic needle. The syringe was empty but projected the strong odor of heroin in the seat area. The police dispatcher advised officers at the scene that Washington’s license belonged to a deceased driver and was suspended.
Officers arrested appellant for possession of a fraudulent driver’s license. An officer searched him and found on his person an off-white rock substance that resembled cocaine. The substance was wrapped in a piece of clear plastic and was located in appellant’s front coin pocket. When the officer asked about the nature of the substance, appellant said he did not know what it was. The officer said it must be narcotics but appellant denied the rock substance was a narcotic. At trial, the parties stipulated the substance was a usable quantity of cocaine base. Officers also arrested Fuentes and Thomas and took them to police headquarters.
Police searched the Jeep and found a wallet with appellant’s identification under the driver’s seat. In the center front console area, they found a wallet containing Thomas’s identification. On the floorboard of the front passenger area, they found Thomas’s cell phone. In the rear seat, the police found an empty hypodermic syringe with the needle broken off at the tip. A strong odor of heroin emanated from the seat where the needle was located. Officer Jeremy Maffei, who worked with Sergeant Marmolejo, believed the contents of the syringe had been emptied into the seat. The pocket behind the driver’s seat contained a bag filled with syringes, six needles, pieces of aluminum, a hype kit, and a shoe lace. One of the syringes was loaded with a black/brown liquid; other syringes contained cotton infused with a black/brown liquid that appeared to be heroin. The parties stipulated the dark liquid in the syringe consisted of a usable quantity of cocaine and heroin.
Fresno Police Officer Jeremy Maffei testified that narcotics users use pieces of aluminum to burn narcotics before injecting them and use shoelaces to tie off the circulation to their arms.
In the rear cargo area of the Jeep, officers found jackets, shirts, and baseball caps. On top of those clothes, the officers found a black, zippered leather bag. They opened the bag and found a loaded silver revolver pistol. The trial court received the revolver in evidence as People’s exhibit No. 18A and the black leather bag as People’s exhibit No. 19A. A fingerprint analyst examined the revolver for latent prints but found none.
People’s exhibit No. 19 consisted of a brown evidence bag and contained People’s exhibit No. 19A, the black, zippered leather bag.
That same day, Detective Camacho conducted a tape-recorded interview with Thomas to determine his involvement with the revolver found in the Jeep. Camacho told Thomas he was under arrest for possession of the revolver and obtained a waiver of Thomas’s rights under Miranda v. Arizona (1966) 384 U.S. 436. Detective Camacho did not promise Thomas leniency for his statements. Thomas told Camacho the gun was not his, he knew why he was taken into custody, and he wanted to provide information to the police. Thomas referred to appellant as “Bird” and to Charles Paul Wilson as either “Paul” or “Pelican.” Thomas said he, Bird, and Pelican had used heroin together. Wilson had talked about robbing a pharmacy and appellant and Wilson had talked about robbing a Little Caesars Pizza restaurant. Wilson said he used different facial creams to “mess” with the security cameras.
Detective Camacho released Thomas at the conclusion of the interview because Thomas did not know the revolver was in the Jeep. Moreover, Camacho’s investigation did not connect Thomas or Fuentes to any robberies. Camacho searched appellant’s personal effects and found Wilson’s telephone number next to the name “Paul” in an address book. Camacho searched the bedroom of Wilson’s residence on November 18, 2004, and found a navy blue trench coat, black nylon gloves, a navy blue mechanic’s jumpsuit, wigs, and a burgundy-colored eyeglass case containing a “hype kit.” Detective Camacho testified a hype kit typically consists of a syringe ordinarily used to inject narcotics. Camacho also located a gray derby cap and several other derby caps in Wilson’s residence.
The black nylon gloves were depicted in a photograph that was admitted into evidence and shown to the jury (People’s exhibit No. 17D).
Robert Thomas testified for the prosecution at appellant’s trial and admitted he had a long criminal history. He also admitted he was a narcotics addict who was using two to three grams of heroin a day at the time of the offenses. In November 2004, Thomas had known appellant, to whom he referred as “Bird, ” and Wilson, to whom he referred as “Paul” or “Pelican.” During this period, the trio spent time together and ingested drugs every day. Thomas was a heroin addict and used two to three grams of the narcotic every day. Appellant and Wilson used a mixture of heroin and cocaine known as a “speedball” or a “John Belushi.” Thomas supplied money to purchase drugs and appellant and Wilson knew where to procure them. Thomas said appellant and Wilson sometimes paid him back in the evening and on other occasions they paid him back in drugs.
Detective Camacho showed Thomas some photographs that included pictures of Wilson and one Paul Benefield. Thomas said he know Benefield but identified Wilson by the given name “Paul.”
At noon on November 16, 2004, Thomas met with appellant and Wilson at the West Side Market. Thomas had injected heroin that morning and was looking to get more. Appellant was seated in a Jeep Cherokee that he either owned or used and Thomas approached him. Thomas, appellant, and Wilson discussed the possibility of getting drugs. During that conversation, appellant sat in the Jeep, Thomas stood next to the Jeep, and Wilson came and went. Thomas talked to them about getting and using drugs. While Thomas did so, appellant took a gun from a zippered black leather case and displayed the weapon. Thomas said they excitedly talked about the weapon and Thomas testified he may have touched the gun.
Appellant brought up the subject of robbery and said he wanted to commit “some more robberies” because he was low on money. Appellant said he was angry at Wilson because the robbery of a pharmacy did not go as planned and the money was insufficient. Appellant said he wanted to go somewhere to show how a robbery should be conducted but he did not go into detail about his role in the pharmacy robbery.
Although there was a further discussion of robbery, Thomas did not pay attention because he was trying to get high on drugs. He thought appellant referred to Little Caesars and other places but he was not paying attention. At one point, appellant asked Thomas whether he would be interested in participating in a robbery. Thomas declined because he did not want to “throw my life away” over small robberies. Thomas said if he were to rob anything, it would have to be something big, such as a bank. Thomas said he did not need to commit robberies because he earned money every day by working at a family-owned funeral home.
Thomas said someone bought drugs at the market and then he, appellant, and Wilson went directly to June Sheldon’s Calwa home to use the drugs. They arrived near evening. Appellant brought the black bag and gun into Sheldon’s house and Thomas saw the weapon and accessories again. Appellant, Thomas, Wilson, and Sheldon used drugs in Sheldon’s home. Several people left the house for beer and drug runs, but Thomas stayed at the house between 30 and 60 minutes. He got high but claimed he had a “strong memory” of what occurred.
Appellant mentioned robbery again at Sheldon’s house. He angrily talked about several previous robberies and spoke in general terms about using facial cream during the crimes to “mess with the cameras.” Thomas said appellant may have left Sheldon’s house at one point but appellant mainly stayed around the house. Wilson may have stepped out of the room where Thomas fixed his drugs, but Thomas believed Wilson did not leave the house at all.
Between 7:30 and 8:00 p.m., Thomas and appellant left Sheldon’s home and drove to Men’s Wearhouse so Thomas could buy a pair of shoes. Wilson remained at Sheldon’s home. En route to the Men’s Wearhouse, Thomas received a call on his cell phone from Bennie Fuentes. Fuentes, an acquaintance, said he was being released from Fresno County Jail and asked Thomas to pick him up. Appellant and Thomas drove to the jail, picked Fuentes up, and the trio drove to the Men’s Wearhouse. Along the way appellant became nervous because a police car was following them. He asked Thomas to identify him by the name of a male relative in case the police stopped their vehicle. Thomas said, “I thought you said you were legit?” Although appellant explained that his license was “messed up, ” Thomas was unwilling to provide a false name.
The police eventually pulled the Jeep over, approximately one hour after Thomas had asked appellant to take him to buy shoes. Thomas was worried about whether appellant had done something that day and whether appellant’s vehicle had been identified. Thomas said he had not participated in the robberies in any way. However, he knew he had a bad history and would be in a great deal of trouble if he were connected with the robberies. Thomas did not know the Jeep contained a gun and drugs and became upset when the police found them. Thomas said he never rode with guns in a car because he was prohibited from having a weapon due to his record. Thomas said the gun in the Jeep was not his; he knew the gun was associated with appellant.
Thomas said he had seen the zippered bag with the gun several times earlier that day. The bag was inside the Jeep. The first occasion occurred around noon outside the West Side Market. Thomas saw appellant in the Jeep Cherokee with Wilson. They all talked about getting drugs. Appellant displayed a gun to Thomas. Appellant kept the gun in a small, zippered black leather case. Appellant said he was low on money and wanted to do more robberies.
When Thomas spoke with Detective Camacho, he attempted to avoid being implicated in the robberies. Thomas did not think he was under arrest and did not make any deals with Detective Camacho. He nevertheless hoped the detective would not arrest him if he talked. According to Thomas, he may have told Camacho he hoped he would not be charged with being a felon in possession of a firearm or with possession of narcotics. Thomas also said by talking to Camacho he had the benefit of not being cut off from his daily supply of heroin. Thomas said Camacho did not conduct any tests to determine whether he had heroin in his system.
Thomas told Detective Camacho that appellant and Wilson repeatedly asked him to participate in robberies. Thomas said he declined to get involved in “Mickey Mouse” robberies because he was a former member of the Black Gorilla Family prison gang. Thomas also told Camacho that Wilson or appellant had described a robbery in which a shot had been fired. Thomas said the robbery might have occurred in a doctor’s office, but he was not sure about the type of business involved. Thomas also told Camacho where Wilson lived and pointed out Wilson’s residence.
At trial, Thomas recalled appellant talking about the robbery of a pharmacy. During that robbery, Wilson laughed and fired a shot when “people didn’t want to cooperate.” Thomas said appellant was upset with that robbery because it generated insufficient money. Appellant was also angry at Wilson because that robbery did not take place as planned. Thomas identified Wilson in the courtroom. The prosecution played a surveillance camera video recording of still shots from the November 8, 2004, Little Caesars robbery for the jury (People’s exh. No. 2). Thomas viewed the same videotape of the charged robbery and identified appellant and Wilson as the robbers depicted in the video. Thomas testified that appellant was the robber holding a gun and dressed in a leather jacket and cap. Thomas said he recognized appellant’s leather coat, jeans, gun, and hairstyle. Detective Camacho viewed the same video and testified that appellant and Wilson “positively matched” the subjects depicted in the video. He also said the gun depicted in the video was a revolver and was the same color as the revolver found in the Jeep.
Evidence of the Uncharged Crimes
Facts underlying the November 5, 2004 robbery of Tower Health
At 4:00 p.m. on November 5, 2004, a tall, thin African-American male entered Tower Health, a vitamin store on North Fulton Street in Fresno. The male, later identified as Charles Wilson, questioned the store manager, Julie Wilson (Julie) about various supplements. Wilson said he needed supplements for his wife because she was going through menopause. Julie told Wilson she had to speak directly to his wife about menopause supplements. Wilson said someone was parking the car and would then come into the store. Julie assumed that Wilson was referring to his wife as the driver.
When Julie told Wilson what he owed for his purchase, Wilson said he did not have the money and was going to use hers. He then put a rectangular black bag on the counter and instructed her to place all of the products in the bag. When Julie argued with him, Wilson pulled a small gun from a waist pouch and showed it to her. Julie initially thought the gun was a toy. She tried to call 911 but Wilson became nervous. She then put the telephone down and said she was not calling anyone. Wilson took the safety off the gun, which made a clicking sound. Julie then realized the gun was real, became scared, and began shaking. Wilson pointed the weapon to her side at an angle, fired one bullet at the floor, and knocked a tile off. Julie then filled the bag with vitamins and about $1,000 in cash. Wilson ran out of the store and Julie called 911.
Detective Camacho testified the characteristics of the bag marked as People’s exhibit No. 19A matched those of the bag seen in a surveillance videotape taken of the Tower Health robbery. Camacho also said the video showed the suspect holding the bag by its loop or handle.
Law enforcement officers subsequently recovered bullet fragments from Tower Health and sent them to the California Department of Justice for analysis. Nancy McCombs, senior criminalist at the Department of Justice crime laboratory in Fresno, compared the fragments with bullets test-fired from People’s exhibit No. 18A. McCombs said there was some agreement between the two but the test lacked necessary detail for an identification. Therefore, she could not determine whether the fragments had been fired from People’s exhibit No. 18A or from some other gun. The parties stipulated that latent fingerprints were recovered from Tower Health on the date of the robbery but that none matched the prints of appellant, Wilson, Robert Thomas, or Paul Benefield.
On November 17, 2004, Julie viewed a photographic lineup and positively identified Wilson as the robber of Tower Health. At a November 9, 2005, court hearing, Julie identified Wilson and the bag and weapon he used. At appellant’s trial, Julie identified Wilson’s bag and gun (People’s exh. Nos. 18A, 19A). However, Julie said she had never seen appellant before that day of trial. The parties stipulated that video surveillance cameras were running properly at Tower Health on the day of the robbery. The prosecution played a videotape of the robbery for the jury. The videotape depicted the robbery suspect holding a bag by a loop or handle.
Facts underlying the November 11, 2004 robbery of Subway Sandwich
At 7:40 p.m. on November 11, 2004, Sunpreet Athwal was working at the Subway Sandwich shop on North Palm Avenue in Fresno. Athwal was helping a coworker ring up a coupon for a customer when a tall, thin African-American male, later identified as Charles Wilson, entered the shop. A second African-American man stood outside the door of the shop. Wilson pushed the customer aside, pulled a small gun from his jacket, pointed the weapon at Athwal and her coworker, and told them to step back. Wilson took the cash out of the register, put it into a zippered black bag, and then left the shop. Wilson and the man at the door walked away together in the direction of the parking lot. Athwal did not get a good look at the face of the second man.
That evening, Athwal told police that Wilson’s accomplice was between 6’1” and 6’3” tall and weighed between 155 and 175 pounds. She also said Wilson’s bag was made of black cloth. The parties stipulated that latent fingerprints were recovered from the Subway restaurant on the date of the robbery and that none of those prints matched the fingerprints of appellant, Wilson, Robert Thomas, or Paul Benefield.
Athwal examined a photographic lineup and positively identified Wilson as the gunman. She also identified him at two hearings prior to trial. At some point, Athwal examined a photo lineup containing appellant’s photograph but was unable to identify anyone. At appellant’s trial, Athwal could not say whether appellant was the male who stood outside the door of the Subway on the date of the robbery.
At several prior hearings, Athwal identified People’s exhibit No. 18A as Wilson’s gun and People’s exhibit No. 19A as Wilson’s bag. At appellant’s trial, Athwal testified that People’s exhibit No. 19A was similar to the robber’s bag and People’s exhibit No. 18A was similar to the robber’s gun. She based the latter conclusion on the size, handle color, cylinder, and silver plating of the revolver.
Facts underlying the November 14, 2004 robbery of Little Caesars Pizza
At 8:00 p.m. on November 14, 2004, Gary Anderson was making pizzas at the Little Caesars restaurant on West Clinton Avenue. He looked toward the cash register and saw his coworker, Andrew Warber, taking money from the safe and handing it to a nearby African-American male. The male, later identified as Charles Wilson, was dressed in a blue jumpsuit and beanie and was holding a blue, zippered bank deposit bag. Wilson displayed a gun and told Warber not to do “‘anything fucking stupid.’” Anderson was singing to the music of a radio at the time and did not actually see the gun or hear Wilson’s statement. Wilson took between $400 and $700 from the register and safe and left the restaurant.
After Anderson called 911, he and Warber went outside and spoke to a group of people. Warber told the group members he and Anderson had just been robbed. A woman said she had just seen a man run out of the restaurant to a vehicle resembling a Jeep. The vehicle was located in front of a Longs Drugs store, about halfway through the parking lot. Anderson thought the woman said the vehicle had a dark color but he was unsure of her statement.
At 8:00 p.m., Kimberly Lopez was collecting shopping carts in front of the Longs Drugs store. The store was two storefronts away from the Little Caesars restaurant. Lopez saw a gold Jeep Cherokee parked on the side of Longs. The engine of the vehicle was idling and the back passenger door was open. Lopez saw a tall, thin African-American male walk quickly across the parking from the area of the Little Caesars toward the location of the Jeep. The man was dressed in a dark blue jogging suit and was carrying a shiny white bag. At trial, Lopez said she did not recognize anyone when she viewed a photographic lineup that included Wilson’s photograph. At a prior hearing, Lopez identified Wilson with 70 percent certainty.
According to Detective Camacho, Lopez “tentatively identified” Wilson in the lineup. Camacho said she pointed to Wilson’s picture and said he looked like the man. However, she was not positive of her identification.
Anderson positively identified Wilson as the robber when he viewed a photographic lineup on November 19, 2004. However, Anderson could not make a positive identification when he saw Wilson in person at a prior hearing. Anderson testified a jumpsuit found in Wilson’s home (People’s exh. No. 21) looked like the jumpsuit worn by the robber. Lopez testified the man she saw in the parking lot might have been wearing a jumpsuit but she was not certain of that. At trial and at a prior hearing, Anderson did not identify People’s exhibit No. 19A as the robber’s bag.
Anderson testified that appellant was not the robber and Lopez testified she had never previously seen appellant. Lopez testified the Jeep that appellant was driving on November 16, 2004, looked like the Jeep she had seen in the parking lot on November 14, 2004. She based her conclusion on the make, color, tinted windows, and wheel rims of the vehicle. According to Anderson, another woman reported seeing a Jeep-like vehicle parked in front of Longs. She mentioned the color of the vehicle but Anderson could not recall what color she mentioned. Anderson later testified the woman may have referred to a dark color. However, he was not certain. Based on briefings about the various robberies, police were looking for a tan Jeep Cherokee.
The parties stipulated that law enforcement officers recovered latent fingerprints from the West Clinton Avenue Little Caesars restaurant on the date of the robbery. The parties further stipulated that none of the prints matched the fingerprints of appellant, Wilson, Robert Thomas, or Paul Benefield. The parties also stipulated that video surveillance cameras were operating properly at the Little Caesars restaurant on November 14, 2004. The prosecution played the videotape of the robbery for the jury at trial. In the opinion of Detective Camacho, the suspect in the videotape appeared to be wearing black nylon gloves.
Facts underlying the November 16, 2004 robbery of Subway Sandwich Shop
At 6:00 p.m. on November 16, 2004, Ravneet Kaur was working at the Subway Sandwich Shop on East Gettysburg Avenue when a tall, thin, African-American male entered the restaurant. The male was wearing a dress suit and a flat hat. He went to the register and Kaur asked whether she could help him. The man said, “‘Yeah, if you can give me some cash.’” He then pulled a gun out of a bag. The gun was black and had a brown handle. Kaur gave the man about $200. He asked her to open the safe but she said she did not know the combination. He next asked whether she had any money but she answered in the negative.
At about that same time, Nasa James was completing a phone call at a phone booth in the same shopping complex. After finishing his call, James walked across the darkened parking lot to the Subway Restaurant to get something to eat. James was about 100 feet away when he passed a tall man coming from the direction of the Subway. The two men made eye contact and the tall man seemed concerned about James’s presence in the parking lot. James recalled the man was wearing a trench coat and was holding a thin, black plastic shopping bag. James also testified the man may have been an African-American with a hat, beard, and dark features.
A few days after the robbery, Kaur viewed a photographic lineup but did not recognize anyone. At trial, she initially identified People’s exhibit No. 18A but went on to testify it did not resemble the robber’s gun. She explained the robber’s gun had a different shape and was black, not silver. She further testified that People’s exhibit No. 19A resembled the robber’s bag.
On the evening of the offense, James spoke with police officers and said he would be unable to identify the person he saw. On November 22, 2004, James viewed a photographic lineup and pointed to Wilson’s picture because the eyes looked familiar. However, James was uncertain and did not want to identify anyone because he had not seen the man clearly due to poor lighting conditions. At trial, James testified that People’s exhibit No. 19A resembled the bag he had seen because it was black and shiny. The parties stipulated an investigator had searched for latent fingerprints in the Subway Sandwich restaurant on the date of the robbery but had found none.
DISCUSSION
I.
TRIAL COUNSEL’S FAILURE TO OBJECT TO ADMISSION OF CONFESSION BY WILSON
Appellant contends reversal is required because his trial attorney rendered constitutionally ineffective assistance of counsel.
He specifically argues:
“At trial, Robert Thomas testified that he thought appellant said something about Little Caesars during their discussion at West Side Market on November 16, 2004, but he wasn’t really paying attention because he was trying to get high. This was Thomas’s only testimony regarding Little Caesars.
“After Thomas finished testifying, Detective Camacho took the stand and testified that, during his interview with Thomas on November 16, 2004, Thomas said that Wilson and appellant had talked about doing a Little Caesars Pizza robbery. When questioned about who made the statements, Camacho testified that ‘they had spoken about committing a Little Caesars Pizza robbery.’ Defense counsel made no objection to this testimony. His failure to object on hearsay grounds to Camacho’s testimony about Wilson’s confession to committing a Little Caesars robbery with appellant and his failure to move to strike the evidence or to move for a mistrial deprived appellant of effective assistance of counsel.”
As to the failure to object, an appellant bears the burden of proving ineffective assistance of counsel. (People v. Haskett (1990) 52 Cal.3d 210, 248; People v. Pope (1979) 23 Cal.3d 412, 425.) To establish constitutionally inadequate representation, the defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel’s failings the result would have been more favorable. (People v. Haskett, supra, at p. 248; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Judicial scrutiny of an attorney’s performance must be highly deferential. (Strickland v. Washington (1984) 466 U.S. 668, 689.) We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we accord great deference to counsel’s tactical decisions. Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsel’s trial strategy. (People v. Frye (1998) 18 Cal.4th 894, 979.) Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. (People v. Bolin (1998) 18 Cal.4th 297, 333.) On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Fosselman (1983) 33 Cal.3d 572, 581.) Furthermore, counsel need not make a meritless objection to avoid an appellate claim of ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.)
On direct examination during the prosecution’s case-in-chief, Thomas testified about a sequence of events that occurred on November 16, 2004. Thomas was with appellant and Charles Paul Wilson. Appellant sat in the Jeep with a door open, Thomas stood outside the Jeep, and Wilson walked back and forth near the vehicle. Appellant brought up the subject of robbery, explaining he was “low on ins, ” i.e., money. Appellant told Thomas he wanted to do some more robberies. Appellant described the prior robbery of a pharmacy during which Wilson fired a shot. Wilson started laughing as appellant described the robbery. Appellant then became angry because the money was not enough and became angry at Wilson because the robbery did not go as planned. Appellant told Thomas he wanted “to go off in the place and show how the robbery was supposed to be done.” During the conversation, appellant, Wilson, and Thomas were looking “to go cop some drugs.” According to Thomas, appellant mentioned several other places in connection with the commission of robberies. Thomas testified, “I think he said something about Little Caesars, two more places, I wasn’t really paying too much attention to the other places, but that was one of them that was mentioned.” Thomas said he was not really paying attention because he “was trying to get high at the time.” Appellant eventually asked Thomas if would be interested in participating in some robberies. Thomas told appellant he was not interested in the “Mickey Mouse” or “little odds and ends robbery jobs they were doing.” Thomas explained if he was going to participate in a robbery, it would have to be “a bank or something like that.” Thomas also said appellant brought up the subject of robberies a second time after they went to June Sheldon’s Calwa residence.
According to Thomas, “low on ins” was a phrase from Ebonics meaning “low on money.” “Ebonics” is also known as “African American Vernacular English.” (Webster’s II New College Dict. (2001) p. 356, col. 1.)
Detective Camacho subsequently testified during the People’s case-in-chief. On direct examination, Camacho said he spoke with Thomas to determine his involvement with or connection to the weapon found in the Jeep Cherokee. During Camacho’s direct testimony, the following exchange occurred:
“Q [by Deputy District Attorney Treisman] With regard to his association with Bird or how he knew him, did he explain that to you?
“A [by Detective Camacho] Yes, he did.
“Q Did he also describe or mention an individual by the name of Paul or Pelican?
“A Yes, he did.
“Q And did he explain how, if at all, he knew this individual?
“A He said that they all used heroin together.
“Q With regard to their use of heroin, he had already acknowledged his own use of heroin, did he explain anything else about these individuals?
“A Yeah, he explained to me that they had, Pelican, or Paul, had talked about committing a prior robbery at a pharmacy, or what he thought was a pharmacy. And that he and Paul, as far as Pelican and Paul, had talked about doing a Little Caesars Pizza robbery as well.
“Q I’m sorry, who and Paul had talked about doing Little Caesars?
“A Pelican and Paul, which would be Mr. Wilson and Mr. Washington.
“Q I’m sorry, Bird and – I’m getting confused. Paul and Pelican, are those the same people?
“A Yes.
“Q And Bird is a separate individual?
“A Yes.
“Q So who spoke of doing a Little Caesars? Mr. Thomas spoke of who?
“A He said that during a conversation that they had spoken about committing a Little Caesars Pizza robbery.
“Q I see. You heard Mr. Thomas’ testimony here yesterday and today?
“A Yes.
“Q Okay. Did that testimony, other than giving the specific person whose residence it was on Calwa, other than that, did his testimony differ from his statement to you?
“A No.”
The prosecutor stated in relevant part in opening argument:
“Mr. Thomas acknowledged that he’s a drug user, and that, and he said that the people he knew, Bird, Mr. Washington, Pelican or Paul who he knows as Mr. Wilson, were drug users. And what we find is that, pardon me, Mr. Washington has cocaine in his pocket, and we know that in particular they would speedball, that is Mr. Wilson and Mr. Washington, and that is a mixture of cocaine and heroin.... [¶]…[¶]
“He also said that Mr. Washington in particular did the talking, but Mr. Wilson was there, and acknowledged talking about, robberies that were occurring. One, sounding distinctly like the Tower Health robbery, where a shot was fired, they described it as a pharmacy. Mr. Revvill [defense counsel] talked about it being a doctor’s office, Detective Camacho did not recall that, but it was a business seeming like a pharmacy to Mr. Thomas.
“Now, again, there’s no evidence that Mr. Thomas was there or participated, he’s not saying he participated, he’s not involved in those robberies, but he’s hearing about them and he’s telling you what he knows about them. Could he give a lot of detail? The answer to that is no, not a lot of detail. He’s relating what they said, what Mr. Washington in particular said.
“And you know from the circumstances, Ladies and Gentlemen, piece to together what Mr. Thomas said, because I’m talking about what supports Mr. Thomas in regard to these events. Mr. Thomas said that they were arguing. There was heat between Mr. Washington and Mr. Wilson, and that is because that robbery did not go as it should. A shot fired, the amount of time that he spent inside of that restaurant, excuse me, that health store, cannot possibly be how you plan a robbery. You don’t want to be identified, you don’t want things to, people to have an opportunity to get to know your face, so it did not go the way Mr. Wilson had in mind, and Mr. Washington is saying that. So it apparently was the case that he planned it with him, so he’s going to show him, and did show him, how to commit a robbery. And that is the robbery we see at the Little Caesars with Mr. Cruz.”
Defense counsel stated at closing argument:
“You might also recall that when, you know, push comes to shove about some of the details what people have said, like well, we were doing crimes and this is probably the so-called confession, Washington said, ‘Wilson and I did a Little Caesars.’ Okay? But one of the things that, and we don’t know if that’s just Wilson talking, or that now it’s Mr. Washington because he needs it to be Mr. Washington, because Mr. Washington is in the car. But when they are, on the 16th of November, 2004, talking outside of the Jeep, inside and outside of the Jeep, I guess, he says that, you know, there’s more robbery talk that’s happening, and he said, you know, they talked about Little Caesars and a couple of other places, but I really wasn’t paying attention because I was trying to get high, so there’s always kind of a way for Mr. Thomas to kind of, you know, fudge a little bit so that he doesn’t have to be perfectly clear. He just has to keep implicating a person and it has to be Washington because Washington is the fella in the car.”
The prosecutor stated during closing argument:
“It is Mr. Thomas’ statement and some of the lack of detail, he can’t say that Mr. Washington was involved in each of these robberies. In fact, if he were out to get somebody, he would have. If he were trying to get somebody, he would have said it. Who could refute it? But that’s not what he said. He said what Mr. Washington told him, which is that there was this event at what seemed to be a pharmacy, it went awry, and he’s upset, Mr. Washington is upset with Mr. Wilson about that. And so he’s going to show him how it’s done, and then they do a Little Caesars. That’s the tone, that’s the content of the statement overall.
“And they do others together, but it is unclear whether Washington is just relating those, or whether he’s saying he’s involved in them. That isn’t clear. Seems like it. But you don’t charge things based on seems like, you charge things based on what the evidence is. So when you look at the videotape and you see Mr. Washington, and you have evidence independent of that, Mr. Thomas saying that it’s Mr. Washington, and when you know there is a connection between Mr. Washington and Mr. Wilson, and you know Mr. Wilson did that robbery, then you bring your charges. And that’s what we have done, and here we are.”
Appellant now argues:
“Camacho’s testimony about Wilson’s statement was hearsay because it was evidence of an out-of-court statement that was offered into evidence for its truth. Camacho’s testimony involves multiple hearsay because Camacho testified to Thomas’s statement about Wilson’s statement. Thus, there were two levels of hearsay: (1) Wilson’s out-of-court statement and (2) Thomas’s out-of-court statement to Camacho about Wilson’s statement. [¶] ... [¶]
“Camacho’s testimony about Wilson’s statement was extremely prejudicial, since Wilson was identified as the perpetrator of the charged Little Caesars robbery and three uncharged robberies, and Wilson’s statement identified appellant as his accomplice in a Little Caesars robbery. There is no possible legitimate tactical reason for defense counsel’s failure to object to this evidence....
“The record shows defense counsel had no valid tactical reason for failing to object to the admission of the statement. Defense counsel based his motion for severance in large part on the extreme prejudice to appellant of that same statement, which he quoted in his written motion as follows: ‘“Thomas stated that during one of many conversations with Wilson, he advised Thomas that he and Washington had done a Little Caesar’s Pizza robbery ....”’ Since defense counsel sought and obtained severance based on the prejudicial impact of this statement, he obviously had no valid tactical reason to let the evidence be admitted in appellant’s trial.”
Appellant overstates the record evidence and his contention must be rejected. Without citing to the record, appellant claims “Wilson’s statement identified appellant as his accomplice in a Little Caesars robbery.” According to the record, Thomas said appellant spoke of a pharmacy robbery committed with Wilson and of appellant’s interest in committing additional robberies. Thomas testified that appellant “said something about Little Caesars, two more places” but Thomas never specifically testified that appellant had committed or claimed to commit robberies of Little Caesars restaurants. Detective Camacho testified “Pelican and Paul, had talked about doing a Little Caesars Pizza robbery as well.” Camacho initially explained, “Pelican and Paul, which would be Mr. Wilson and Mr. Washington.” However, upon further questioning, Camacho acknowledged that “Paul and Pelican” were the same person. Camacho testified that Charles Paul Wilson was the Paul or Pelican to which Thomas referred in his interview with Camacho.
At an Evidence Code section 403 hearing held on November 4, 2005, Thomas testified that he knew Charles Paul Wilson as “Paul” or “Pelican” and appellant as “Bird.”
Generally speaking, a defense counsel’s failure to object to inadmissible evidence is a matter of trial tactics which the appellate court will not second-guess. (People v. Riel (2000) 22 Cal.4th 1153, 1185.) Trial counsel is accorded wide latitude and discretion with respect to trial tactics and strategy. However, the exercise of that discretion must be reasonable. (People v. Frierson (1979) 25 Cal.3d 142, 166.) If the record on appeal sheds no light on why counsel acted or failed to act in the challenged manner, the claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one or there simply could be no satisfactory explanation. (People v. Bolin, supra, 18 Cal.4th at p. 333.)
Here, the record on appeal does not reflect why defense counsel did not object to Thomas’s hearsay statements about the robbery of a Little Caesars Pizza restaurant. Appellant submits there is no possible legitimate tactical reason for defense counsel’s failure to object to this evidence. In our view, trial counsel could have had several legitimate tactical purposes for declining to interpose an objection. First, the hearsay statements were somewhat oblique and convoluted. Defense counsel may have reasonably concluded that an ambiguous record was more likely to generate reasonable doubt in the minds of the jurors. Moreover, the interposition of a defense objection would have conceivably prodded the prosecution to elicit clarifying statements, thereby eliminating such doubt and irreparably damaging the defense case. Second, Thomas testified it was appellant who spoke about the robbery of a Little Caesars Pizza restaurant. Detective Camacho testified that he interviewed Thomas and the latter attributed the statement about Little Caesars to Wilson rather than appellant. From this state of the evidence, defense counsel could have reasonably concluded the statement was admissible as a prior inconsistent statement (Evid. Code, § 1235). Third, as respondent points out, defense counsel may have elected not to object to Camacho’s testimony because it tended to show Thomas’s unreliability as a witness or his lack of credibility. The testimony tended to show unreliability because it demonstrated Thomas could not accurately recall who said what about the robberies. The testimony also tended to show lack of credibility because it suggested that Thomas shifted blame to appellant in an effort to avoid responsibility for the firearm that officers found in the Jeep.
Finally, even assuming arguendo a deficient performance by trial counsel, appellant has failed to affirmatively prove prejudice, i.e., a reasonable probability that, but for counsel’s errors or omissions, the result of the proceeding would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Appellant maintains Camacho’s testimony about Wilson’s statement was “extremely prejudicial” because “Wilson was identified as the perpetrator of the charged Little Caesars robbery and three uncharged robberies, and Wilson’s statement identified appellant as his accomplice in a Little Caesars robbery.” A careful reading of the challenged portion of the record reveals that Camacho’s recitation of Wilson’s statement was simply not as clear or as damaging as appellant suggests. Moreover, the prosecution played a surveillance video recording of the November 8, 2004, Little Caesars Pizza robbery for the jury to view. From the videotape, the jurors could have independently determined whether or not the accused participated in the charged offense. In light of that demonstrative evidence, it is not reasonably probable that appellant would have obtained a more favorable result had defense counsel objected to Detective Camacho’s testimony about Wilson’s interview statements.
II.
EVIDENCE OF THREE UNCHARGED ROBBERIES
Appellant contends the trial court abused its discretion under Evidence Code section 352 and violated his due process right to a fair trial by admitting evidence of three uncharged robberies.
Appellant specifically argues:
“The prosecutor introduced evidence of four uncharged robberies: (1) the Tower Health robbery on November 5, 2004; (2) the Subway Sandwich Shop robbery on November 11, 2004; (3) the Little Caesars Pizza robbery on November 14, 2004; and (4) the Subway Sandwich Shop robbery on November 16, 2004. Appellant was not identified as being a perpetrator or as being at the scene of any of these robberies. Wilson was identified as the perpetrator of the first three robberies, and a bystander in the fourth incident suggested that a man he saw might have been Wilson.
“The prosecutor’s strategy, in essence, was to mount an overwhelming case against Wilson by proving Wilson perpetrated the charged robbery and every uncharged robbery, by linking appellant to Wilson through the gun found in the Jeep and Thomas’s claim that Wilson and appellant associated together and made admissions, and to reach the conclusion that appellant must have been Wilson’s accomplice in the charged robbery and might have been Wilson’s accomplice in the uncharged robberies. The st[r]ategy involved circular reasoning. Evidence of Wilson’s uncharged robberies was used to prove Thomas was telling the truth about the admissions, and the admissions were used to justify introducing the uncharged crimes into evidence. Moreover, evidence of the charged robbery was used to foster suspicion that appellant probably committed the uncharged robberies and that suspicion was used, in turn to strengthen the theory that he committed the charge[d] crime. [¶] ... [¶]
“In admitting the evidence of the November 5, 11, and 14 robberies, the trial court abused its discretion under Evidence Code section 352 and violated appellant’s right to a fair trial under the Fourteenth Amendment to the United States Constitution. ... The prejudicial impact of all of this evidence outweighed its probative value, and the evidence consumed an undue amount of time, confused the issues, and greatly increased the danger that the jury would convict appellant of the charged crimes in order to punish him for the uncharged robberies.”
Appellant contends and respondent agrees that he adequately preserved his right to challenge the admission of evidence of the uncharged robberies committed on November 5, 11, and 14, 2004.
A. Procedural History
On August 30, 2005, the district attorney filed an information charging Charles Paul Wilson, in pertinent part, with the November 5, 2004, robbery of Tower Health (count I), the November 11, 2004, robbery of the Palm Avenue Subway Sandwich (count III), the November 14, 2004, robbery of the Clinton Avenue Little Caesars Pizza (count IV), possession of a firearm by a felon (count V), and prior strikes. The information also charged Wilson and appellant George Washington, Jr. with the November 8, 2004, robbery of the Shaw Avenue Little Caesars Pizza (count II) and charged appellant with possession of a firearm by a felon (count VI) and with prior strikes and prison terms. A second amended information filed November 29, 2005, set forth similar allegations.
On November 3, 2005, the district attorney filed a first amended information charging Wilson and appellant, in pertinent part, with the same substantive offenses. On the same date, appellant moved in limine to sever his trial from that of Wilson because of the potential for prejudice. On November 7, 2005, the court granted the motion to sever by minute order and directed that appellant’s trial follow that of Charles Wilson. On November 21, 2005, while the jury was deliberating in Wilson’s case, the court ordered preparation of a reporter’s transcript of Thomas’s testimony in the Wilson trial. On November 22, 2005, the court ordered preparation of a reporter’s transcript of the cross-examination of Detective Camacho in Wilson’s trial.
Later in the November 22 hearing, the following exchange occurred:
“MR. REVVILL [defense counsel]: You know … one of the reasons I moved to sever the first case ... [w]as that the jury was going to hear all of this evidence that was primarily targeted against Mr. Wilson, and there might be the spill over effect. And so, that was the basis for severance. But I think the fact still remains that the relevance of all of that other information of all of these other robberies which my client is not charged is – certainly, it seems outweighed by its prejudicial impact given the fact that he’s just not a charged defendant nor identified as being present at them. He’s not present at the – at least, you know, there’s another man alleged to have been present with Mr. Wilson. That person is never identified, and yet, the jury is going to hear about it, and they’re going to be speculate even though they’re going to be directed not to, that it’s this man here because he’s sitting here. He’s on trial. And it’s going to be the same with every other robbery, apart from the November 8th one, in which they hear evidence. And so, I may be more than just a 352 issue. It may be a due process under both California and Federal constitution. It seems fundamentally unfair that the jury is going to be hearing a lot of evidence about this string of robberies that occurs and use that to reach a conclusion that Mr. Washington was one of the people who robbed Little Caesars on November 8th, 2004.
“THE COURT: Mr. Treisman? [¶] ... [¶]
“MR. TREISMAN: Well, there’s a string of robberies. That is correct. The association between Mr. Washington and Mr. Wilson is extremely relevant. Mr. Thomas’s testimony is that the two of them were associated with one another. And it’s Mr. Washington who tells them that the two of them are conducting robberies. It’s Mr. Wilson who is doing them, but Mr. Washington who knows of them. In particular Tower Vitamin. He knows very specifically. And he mentions another by name. A Little Caesars. And it’s Mr. Thomas also that states that Mr. Washington had specified that he participated in that robbery. The incidents occurring on the 5th, the events unfolding in the Tower, it is the prosecution’s position that the weapon that is used is tied in part by ballistics to the gun that is found on the 16th in the vehicle. And as a result each of the separate incidents showing by identification that it was and by prior identification in this instance of Mr. Wilson’s presence, that it is Mr. Wilson who is the perpetrator would seem by their association and by the descriptions to corroborate Mr. Thomas’s statement that it is, in fact, Mr. Washington and Mr. Wilson who perpetrate the robbery on the 8th.
“THE COURT: I’m sorry. Mr. Thomas’s statements about what Mr. Washington told him – say what?
“MR. TREISMAN: Well, Mr. Washington – in summary Mr. Thomas says that Mr. Washington stated that they were doing robberies. He states that Mr. Washington tells him that Mr. Wilson went into Tower Vitamin, what he believed to have been a pharmacy. And when he couldn’t get the attention of the clerk, he fired into the ground. That description matches the event at Tower Vitamin. He mentions that. And again, I’m going by memory. I don’t have the summary in front of me. But he mentions that Mr. Washington told him a Little Caesars that they had done. He also mentions that Mr. Washington stated that he had just done a robbery earlier in the day with Mr. Wilson on the 16th earlier in the day before they had encountered one another. And it is during this conversation, in fact, that it’s Mr. Wilson that says, you know, robbery is not working for me. That’s the part that we had dealt with in the previous trial. But in that same context, in that same conversation he had talked about an event earlier in the day on the 16th. So those events corroborate Mr. Thomas’s testimony. It’s further corroborated, of course, by the telephone number that is located and the association between Mr. Washington and Wilson. And finally, by the video of the 8th. But the string of events are extremely probative of these events and corroborative of Mr. Thomas’s testimony in that he says there are robberies, and we show that there are robberies. He says that it’s Mr. Wilson who is involved. The videos as well as the testimony of the witnesses would show that it’s Mr. Wilson who is involved. And Mr. Washington’s role that he expresses to Mr. Thomas was that, as I understand it, is that he wasn’t the one that was going in, but it was Mr. Wilson that was going in. And it was Mr. Washington that is, as we find out later on the 16th, driving the vehicle. And it’s his vehicle. And it’s known to be his vehicle, according to Mr. Thomas. And he’s in possession of that vehicle. He’s also in possession of the weapon in the back.
“THE COURT: Well, there’s two other robberies out there involved that isn’t identified. One is Subway where she saw another individual outside; right?
“MR. TREISMAN: That’s correct.
“THE COURT: So you’re saying that’s the linkage on that one?
“MR. TREISMAN: Yes, sir.
“THE COURT: And the other one is, what, the other Little Caesars?
“MR. TREISMAN: Well, we have the Tower Vitamin, Little C[ae]sars, Subway, and the second Little C[ae]sars. That’s the one with Andrew Warber and Mr. Gary Anderson on the 14th. And the linkage on the 14th is that that is when the jeep is located. Is observed running with a passenger door open and a tentative identification of Mr. Wilson returning to that vehicle. Presumably then by circumstantial evidence someone is driving.
“THE COURT: Mr. Revvill, anything else?
“MR. REVVILL: Well, you know, I didn’t hear the testimony of the witnesses in the last trial, the witnesses who were the victims or otherwise witnessed the robberies such as Julie Wilson. If the Court were to decide that – that the evidence is admissible and should be heard, it still seems that there would be another way to prove up the fact that a robbery occurred at Tower Vitamin without having to put on the testimony, which may have been very emotional, I’m not sure, in which a gun was fired down into the floor. None of these things which have been alleged against my client. And I think a lot of the prejudice comes from not just the fact that there are all these other robberies out there. There is going to be emotional contact. There is going to be, I think, a lot of irrelevant contact coming in through this testimony. They’re never going to say I saw a get-away vehicle or African American gentleman standing around the business. So if the Court were to decide that this evidence were admissible to help bolster, I guess, Mr. Thomas’s credibility, perhaps some of it could be reached by stipulation to not only streamline the trial, but to diminish some of the concerns that I have with respect to the impact of the testimony.
“THE COURT: Well, you can consider that. And certainly, you can talk about stipulations. As to those issues, tentatively at this point I think I’d allow it. It seems to be relevant and certainly probative as to the whole string of things and how the evidence comes out. So at this point it looks to me more probative than prejudicial. Obviously, prejudicial, but I think it has a probative value here. But tentatively, certainly, consider that unless there’s other case law you want to get to me.”
The prosecutor stated at closing argument:
“... The summary of these events was to point out and make clear to you that Mr. Wilson, without any question, was in fact a robber of five businesses. On two of those occasions there was a second person. On this occasion, the Little Caesars on the 8th, and on this occasion, on the 11th. [¶] ... [¶]
“... And then, how many robberies does one person have to do before you begin to realize he’s a robber, you know? So Mr. Wilson, that’s in fact, what he was about.
“And then you know of the connection between Mr. Wilson and Mr. Washington. It isn’t an imaginary event in Mr. Thomas’ head, he said that they spent time together, that they do drugs together, that they were in fact together on the 16th, he was aware of a robbery having occurred on the 16th.
“And the one thing he did say, and if you listen to his testimony, and I submit to you he is mistaken at least as to who was present while he was doing drugs and at the Calwa residence, this robbery occurs. So, either Mr. Wilson left all by himself, or Mr. Wilson went with Mr. Washington and they did a robbery. Mr. Thomas is busy doing his drugs and he does not recall him leaving, but he’s not here to, he’s not here to do one thing or the other. He’s not trying to give an alibi, he’s not trying to convict anybody. What he’s trying to do is tell you what he remembers, and he would say that that robbery must not have been, but Mr. Nasa recognizes him, it’s the identical MO, modus operandi, he did it. [¶] ... [¶]
“... He [Thomas] does drugs with them, that’s what he does. And he listens to them, and he was solicited to commit robberies with them, and incidentally, a guy who is trying to put himself in the best light does not say, ‘Well, I’m not going to do that Mickey Mouse stuff. If you are going to do a bank robbery, maybe, because that would be worth it.’ This is not a guy who was polishing the stone for the detective. He’s not making himself look nice, bright, and shiny. He was pretty straight. And that is because, again, he’s trying to clear his name, and he knows how it works. If you lie, you get caught in a lie, but if you are straight, you tell what’s going on, things like are occurring in this case, occur. You give your statement and it is corroborated by the facts as you lay them out from other witnesses elsewhere. [¶] ... [¶]
“So, an admission or a confession which is what that statement to Mr. Thomas by Mr. Washington would be, we call it that, it’s a statement, they don’t know it at the time that they are admitting a crime, but that’s what they are doing, they are talking about a crime. Boom, it becomes admission or confession of a crime. If it is a confession, if it tells you as in this case, where the Little Caesars, and what they did. A robbery.
“It’s an admission if it acknowledges some aspect of it, but doesn’t go as far as that, and I talked about an admission up here and a confession, because they are, for your purposes, are the same in this case. He confessed the crime, talked about it very specifically. There was the one where Mr. Wilson went in and she shot, and then he had to be instructed, and then there’s a Little Caesars, and that’s what he talked about with the defective, that is, Mr. Thomas, in relating that statement of Mr. Washington.”
B. Governing Law
Evidence Code section 1101, subdivision (c) states:
“Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
Evidence Code section 352 states:
“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.”
Evidence of uncharged offenses may be admitted at trial only if they have substantial probative value. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1445.) Because disclosure of uncharged offenses can be highly prejudicial, a trial court should use particular care in performing its weighing analysis. (People v. Millwee (1998) 18 Cal.4th 96, 131.) In applying Evidence Code section 352, “prejudicial” evidence does not refer to evidence that is merely damaging to the defense. Rather, the term “prejudicial” refers to evidence that uniquely tends to evoke an emotional bias against defendant as an individual and that has very little effect on the issues. (People v. Bolin, supra, 18 Cal.4th at p. 320.)
In admitting evidence of uncharged offenses, the trial court need not expressly weigh prejudice against probative value or even expressly state it has done so. Instead, the record need only demonstrate that the trial court understood and fulfilled its responsibilities under the Evidence Code and nothing more is required. (People v. Erving (1998) 63 Cal.App.4th 652, 664-665.) On appeal, an appellate court reviews for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. (People v. Cole (2004) 33 Cal.4th 1158, 1194-1195.) An abuse of discretion occurs when a trial court exercises its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
C. Appellant’s Specific Contentions
Appellant devotes a substantial portion of his discussion to the trial court’s standard of evaluating evidence of uncharged offenses under Evidence Code section 352. To that end, he contends (1) the evidence consumed an undue amount of time at trial; (2) the evidence of the Tower Health robbery was inflammatory because it entailed “a blow by blow description from [victim Julie Wilson] as to how the gun was fired” at Tower Health; (3) the evidence presented a substantial possibility of jury confusion because, among other things, there were four uncharged robberies and the prosecution presented extensive evidence on each robbery; and (4) the prejudicial impact of the evidence exceeded its probative value because there was no substantial evidence that appellant committed the uncharged robberies. As to the last point, appellant submits (a) his trial counsel was ineffective by failing to object to evidence of the November 14 robbery of the West Clinton Little Caesars; (b) the prejudicial impact of the evidence of the uncharged robberies on November 5, 11, and 14 outweighed their probative value because appellant was not linked to those robberies by substantial evidence; and (c) admission of the evidence to bolster Thomas’s credibility violated Evidence Code section 352.
This contention is addressed in issue III below.
Although appellant raises this issue twice in his opening brief, we will address it once in issue III.D.4. below.
D. Application of Law to Contentions
1. Consumption of time
The trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) Here, respondent properly points out that the time expended in presenting evidence of uncharged robberies was necessary because corroboration of Thomas’s testimony did not come from the mere fact of the robberies. Rather, corroboration came from the particular circumstances of the robberies. These circumstances demonstrated that Wilson had committed robberies, some with an accomplice, and those circumstances in turn linked Wilson to appellant’s vehicle and to the black bag and gun found in that vehicle. Moreover, prior to trial the prosecutor advised the court he would be presenting against appellant the same case he had previously presented against Wilson. Thus, the trial court was generally aware of the amount of time to be devoted to uncharged crimes evidence when it engaged in the Evidence Code section 352 weighing process. Under all of these facts and circumstances, the trial court did not abuse its discretion in admitting evidence of uncharged crimes.
2. Inflammatory evidence
Appellant submits:
“The evidence of the Tower Health robbery was far more inflammatory than the evidence of the charged robbery. Whereas a gun was pointed at the victim in the charged robbery, a gun was actually fired in the direction of the victim, Julie Wilson, in the Tower Health robbery.
“Moreover, to dramatize the terror that Julie experienced, the prosecutor elicited a blow by blow description from her as to how the gun was fired. Then the prosecutor used the gun that was found in appellant’s car to do a demonstration for the jury. After assuring the court that the gun was empty and there was ‘nothing to fear, ’ the prosecutor pulled back the hammer of the gun, making a clicking sound. No such inflammatory evidence was presented on the charged offenses.”
The evidence showed that Wilson—not appellant—fired the gun in the robbery of the health store and that Wilson only fired one bullet from the gun into the floor of the store. According to witness Thomas, appellant was upset at Wilson because of the way in which the robbery was conducted. In any event, defense counsel did not object to the prosecution’s questions or demonstrative use of the gun, and appellant’s objection must be deemed waived. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) Even assuming no waiver, the prosecution played the surveillance video of the November 8 robbery of the Little Caesars for the jury to view and evaluate. Both Thomas and Detective Camacho identified Wilson and appellant in that video. The latter evidence was far more damning than the evidence relating to the uncharged robbery of Tower Health.
3. Jury confusion
Appellant submits the jury was required to determine whether or not he committed each uncharged robbery. He submits there was a substantial danger the jury might convict him of the charged robbery to punish him for engaging in a crime spree.
At closing argument, defense counsel advised the jurors: “[Y]ou are not here to solve a mystery, you are here to decide one thing only, did he [the prosecutor] present a case that convinces you beyond a reasonable doubt that Mr. Washington committed this one, two crimes charged on one particular day. Not five crimes alleged that you heard evidence about.” In his final argument, the prosecutor stated that Thomas could not say whether or not appellant was involved in each of the uncharged robberies. The prosecutor frankly acknowledged that appellant spoke to Thomas about certain robberies but “it is unclear whether Washington is just relating those, or whether he’s saying he’s involved in them. That isn’t clear.” The prosecutor went on to argue that the November 8 videotape depicted appellant’s involvement in the Little Caesars robbery, that Thomas identified appellant from that videotape, and that charges were filed against appellant as a result. The prosecution and the defense properly focused the jury on the charged offense of November 8 and the probative value of the uncharged offense evidence was not outweighed by the probability that its admission would create a substantial danger of jury confusion.
4. Substantiality of evidence of uncharged offenses
Appellant contends the prejudicial impact of the evidence exceeded its probative value because there was no substantial evidence that appellant committed the uncharged robberies. He maintains the evidence of the uncharged robberies dominated the trial but had no legitimate probative value because no substantial evidence proved that appellant committed any of the uncharged crimes. He specifically contends the admission of Wilson’s uncharged robberies to prove appellant’s guilt was an abuse of discretion under Evidence Code section 352 and violated appellant’s Fourteenth Amendment due process right to a fundamentally fair trial.
Appellant cites People v. Albertson (1944) 23 Cal.2d 550 (Albertson), People v. Jackson (1967) 254 Cal.App.2d 655 (Jackson), and People v. Long (1970) 7 Cal.App.3d 586 (Long) to support his contention. In Albertson, supra, 23 Cal.2d 550, the defendant was convicted of first degree murder of by means of poisoned vitamin capsules. The judgment of guilt was based entirely upon circumstantial evidence. To strengthen its case, the prosecution introduced hundreds of pages of testimony relating to an assault that occurred on August 30, 1941. (Id. at p. 568.) Evidence of other crimes may be admitted when it tends directly to establish the crime charged by proving a material fact, where it helps to disclose motive, intent, premeditation, guilty knowledge, malice, or a common plan or scheme. Where evidence of a prior offense is properly admissible under such exceptions, it is not necessary to prove all of the elements of that offense beyond a reasonable doubt, as would be the case were defendant standing trial for it as well as for the crime charged. However, the proof of the uncharged offense must nevertheless be sufficient to arouse more than mere suspicion. Such proof must afford substantial evidence that the prior offense was in fact committed by the defendant. (Id. at pp. 552-553, 576-580.)
In Jackson, supra, 254 Cal.App.2d 655 , the defendant was convicted of an attempt to commit grand theft. To prove his intent to steal property valued atmore than $200, the prosecution was permitted to introduce evidence of four other similar crimes. The parties conceded the defendant was not shown to have been connected to any of them. The People’s theory was that Lee, who was arrested along with the defendant, was the defendant’s accomplice, that the defendant had the same intent as Lee, and to prove Lee’s intent, evidence of other similar crimes attributed to him was introduced. This court reversed the judgment of conviction, noting such evidence should be received with extreme caution and, if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused. Conviction of a felony cannot rest upon the tenuous evidence of other crimes of a third person. That is not because an essential element of the crime charged is inferred from circumstantial evidence derived from the third person’s commission of other crimes. Rather, conviction of a felony cannot rest upon such evidence because evidence of crimes committed by a third person who is not on trial saddles a defendant with the burden of proving the innocence of another. Such a burden violates the fundamental principles of due process of law. (Id. at pp. 656-657, 659-660.)
In Long, supra, 7 Cal.3d 586, the defendant was found guilty of passing a $45 forged check. At trial, the defendant took the stand for the sole purpose of denying that he signed the indorsement of the check. On cross-examination, the prosecution was permitted to question him regarding three other checks payable to the same payee. The court took judicial notice of a juvenile court file of the person who forged those three checks. According to that file, the defendant admitted being present when the other person forged the three checks. The Court of Appeal, Third Appellate District, reversed the judgment of conviction. The vice of the prosecutor’s tactic lay in its failure to produce substantial evidence of the defendant’s complicity in the other three forgeries. The prosecution produced a suspicion, but no more, that the defendant had aided and abetted the forger of the three checks. That suspicion was sharpened (but not confirmed) by the dubious resort to judicial notice of the forger’s juvenile court file. While courts take judicial notice of public records, they do not take notice of the truth of the matters stated therein. In the eyes of the jury, the defendant’s possible guilt of the crime charged made probable his complicity in the other three forgeries. At the same time, his possible complicity in the other three forgeries made probable his guilt of the crime charged. The Supreme Court denounced such prosecution tactics in Albertson. (Id. at pp. 589-592.)
Respondent attempts to distinguish Albertson, Jackson, and Long from the instant case by noting the instant evidence was admitted to support the credibility of a prosecution witness rather than to show such relevant facts as motive or intent (other than criminal disposition) under Evidence Code section 1101. In People v. Stern (2003) 111 Cal.App.4th 283 (Stern), the defendant stabbed an unidentified man during a fight in Hollywood. The Hollywood stabbing was not charged but the Hollywood stabbing did occur several days before the defendant made a threatening telephone call to one Kevin Hird, the victim in Stern. In that telephone conversation, the defendant threatened to slit the throat of Hird’s mother. The defendant also claimed to have stabbed someone else in the throat several nights earlier. The trial court ruled the Hollywood stabbing was admissible in this case to support the credibility of Hird’s testimony about the telephone threat to his mother. Division Five of the Court of Appeal, Second District, concluded the “Truth-in-Evidence” provisions of article I, section 28 of the California Constitution vested the trial court with discretion to permit brief testimony by two witnesses concerning the Hollywood stabbing to corroborate Hird’s recollection of defendant’s threatening telephone call. The appellate court noted that admissibility of character-trait evidence on the issue of credibility of a witness is governed by Evidence Code sections 786 to 790 (attacking or supporting credibility) and not by section 1101. The evidence at issue demonstrated that the defendant was in fact involved in a stabbing around the time of the threatening telephone call and thereby lent credence to Hird’s testimony concerning the threats. The trial court did not abuse its discretion in reaching this conclusion. (Stern, supra, 111 Cal.App.4th at pp. 286, 296-300.)
Appellant notes that Stern does not mention or contradict Jackson, Long, or Albertson and that Stern did not consider whether evidence of an uncharged crime is admissible to support a witness’s credibility when the uncharged crime was committed by a third person who was not on trial and there was no substantial evidence to show the defendant was an accomplice. Further, the sole error in Stern was an alleged violation of state evidence law; no federal constitutional issue was raised in the trial court or posited with the appellate court. (Stern, supra, 111 Cal.App.4th at p. 299.) However, the Stern court did hold that Evidence Code section 1101, subdivision (c) does not create grounds for the admissibility of character evidence. Rather, it merely provides that Evidence Code section 1101, subdivisions (a) and (b) are inapplicable to the use of uncharged misconduct which is received on the issue of whether a witness should be believed. Moreover, the Stern court held: “[T]here is nothing in article I, section 28, subdivision (d) to prevent the use of relevant testimony to prove a crime victim, or any other witness for that matter, is telling the truth.” (Stern, supra, 111 Cal.App.4th at p. 300, italics added.)
Although appellant focuses on whether there was sufficient evidence to show he committed the uncharged offenses, the real question is whether that evidence was relevant to the credibility of witness Thomas. In our view, the trial court did not abuse its discretion under Evidence Code section 352 by admitting evidence of uncharged offenses that corroborated the testimony of witness Thomas.
a. Evidence of uncharged offenses to bolster credibility
In his extended discussion of uncharged crimes, appellant contends that other-crimes evidence is not admissible solely to corroborate or bolster a witness’s credibility.
In People v. Pitts (1990) 223 Cal.App.3d 606, 835, this court held that although a prior act need not be a crime to be admissible under Evidence Code section 1101, such evidence is not admissible solely to corroborate or bolster a witness’s credibility. In People v. Brown (1993) 17 Cal.App.4th 1389 (Brown), Division One of the Court of Appeal, Fourth Appellate District, noted that courts have generally interpreted Evidence Code section 1101 as not permitting introduction of uncharged prior acts solely to corroborate or bolster the credibility of a witness. In Brown, the defendant was convicted of molestation of a child under age 14. The trial court admitted the defendant’s statements to police detectives in which he acknowledged his unrelated molestation of two underage females. The court also admitted the testimony of one of those female victims, now an adult, about the molestation. The asserted purpose for the admission of the evidence was to bolster the testimony of the police detectives, i.e., to show they testified truthfully. The appellate court held the purpose for admitting the crimes involved a collateral issue, i.e., the truthfulness of the detectives rather than as proof of the alleged molestation. The case was a close one, the evidence presented a clear danger of undue prejudice, and any probative value was clearly outweighed by a danger of undue prejudice. (Brown, supra, 17 Cal.App.4th at pp. 1395-1398.)
In contrast, in Stern, supra, 111 Cal.App.4th 283, Division Five of the Court of Appeal, Second Appellate District, concluded the “Truth-in-Evidence” provisions of article I, section 28 of the California Constitution vested the trial court with discretion to permit brief testimony by two witnesses concerning the Hollywood stabbing to corroborate victim Hird’s recollection of the defendant’s threatening telephone call. The appellate court noted that admissibility of character-trait evidence on the issue of credibility of a witness is governed by Evidence Code sections 786 to 790 (attacking or supporting credibility) and not by Evidence Code section 1101. The evidence at issue demonstrated that defendant was in fact involved in a stabbing around the time of the threatening telephone call and thereby lent credence to Hird’s testimony concerning the threats. The trial court did not abuse its discretion in reaching this conclusion. The appellate court noted “there is nothing in article I, section 28, subdivision (d) to prevent the use of relevant testimony to prove a crime victim, or any other witness for that matter, is telling the truth.” (Stern, supra, 111 Cal.App.4th at p. 300.)
In the instant case, appellant attempts to distinguish Stern in a number of respects. First, appellant notes the uncharged act in Stern was committed by the defendant and not by a third party who was not on trial. Second, the defendant in Stern admitted on the stand that he committed the uncharged act. Third, in Stern the uncharged act evidence directly supported the victim’s in-court testimony on the charged crimes. Fourth, the Stern case involved brief testimony about one uncharged act while appellant’s case involved substantial testimony about four uncharged robberies. Fifth, in Stern the prejudicial impact of the uncharged act evidence was mitigated by evidence that defendant claimed self-defense. Sixth, in Stern the trial court instructed the jury to consider the uncharged act solely with respect to credibility. Appellant contends no such instruction was given in the instant case.
The parties have not cited and we have been unable to find any authority declaring whether Brown or Stern represents the prevailing view in California. Assuming appellant’s view is the correct one, the question is whether the admission of the uncharged offenses resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b).) A miscarriage of justice shall be declared, only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.) In the instant case, the prosecution played a November 8, 2004, video recording of the surveillance camera at the Little Caesars Pizza on Shaw Avenue in Fresno. Witness Thomas and Detective Camacho testified about the identity of the individuals depicted on that videotape and the jury viewed and evaluated the recording, independently drawing their own conclusions as to the individuals involved. Given this evidence, it is not reasonably probable a result more favorable to appellant would have occurred, even if the trial court had excluded evidence of the uncharged offenses.
III.
COUNSEL’S FAILURE TO OBJECT TO ADMISSION OF EVIDENCE OF FOURTH UNCHARGED ROBBERY
In the caption set forth in his opening brief on appeal, appellant erroneously refers to November 14 as the date of the robbery in question. However, the text of the issue refers to November 16 as the date of the robbery in question.
Appellant contends:
“Defense counsel was incompetent in failing to renew his objection to the admission of the evidence of the November 14 robbery before the prosecutor presented it. If defense counsel had followed the trial court’s directions, the trial court likely would have, and certainly should have, excluded the evidence in its final ruling. The evidence was not admissible to bolster Thomas’s credibility because Thomas did not testify that appellant admitted committing [the] November 16 robbery; indeed, his testimony indicated neither appellant nor Wilson committed the robbery. ... Because no substantial evidence linked appellant or Wilson to the crime, the evidence was inadmissible because ‘[e]vidence of other similar crimes linked to no one at all is clearly inadmissible to prove any element of the crime charged against a defendant.’ (People v. Jackson [(1967)] 254 Cal.App.2d [655, ] 658.
“The evidence presented at trial shows the November 16 robbery was perpetrated by one person, who was never identified. No evidence was presented that the robber had an accomplice. The victim of the robbery, Raveneet Kaur, testified that a tall, thin Black man committed the robbery. Kaur didn’t recognize anyone in the photographic lineup she viewed a few days after the robbery. [¶] ... [¶]
“Prior to trial, the prosecutor acknowledged that, apart from appellant’s alleged admission to Thomas, he had ‘no evidence’ of who committed the November 16 robbery and ‘no evidence’ to connect it to Wilson and appellant. Nevertheless, the prosecutor argued at length to the jury that Wilson committed the robbery, either alone or with appellant. The prosecutor argued that, while Thomas was doing drugs, Wilson, appellant, or both left the Calwa[] residence and committed the robbery. Thomas was mistaken when he testified they did not leave. They must have left the house and committed the robbery, the prosecutor reasoned, because the gun, which appellant had taken into the house, ‘ends up magically in the car, unbeknownst to Mr. Thomas.’ James saw the robber even though Kaur said the robber wore a suit and James said the man wore an overcoat, because an overcoat looks like a suit coat and an overcoat was found in Wilson’s home. The prosecutor asserted that James identified Wilson, although tentatively, and proclaimed to the jury: ‘Nasa recognizes [Wilson], it’s the identical MO, modus operandi, he did it.’
“The prosecutor used a modus operandi theory in his attempt to convince the jury that Wilson perpetrated the robbery. However, the evidence was not admissible for that purpose.... The evidence was not admissible to prove Wilson’s modus operandi because he was not a defendant, he was not linked to the crime by substantial evidence, and ‘evidence of crimes committed by a third person who is not on trial saddles a defendant with the burden of proving the innocence of another’ and ‘[s]uch a burden violated the fundamental principles of due process of law.’ (Jackson, supra, 254 Cal.App.2d at p. 660.)
“Appellant was prejudiced by the evidence of the November 16 robbery despite the lack of evidence against him, because the jury likely believed the prosecutor’s argument that he must have been involved. Consequently, defense counsel’s failure to preserve appellant’s objection was not objectively reasonable based upon professional norms.”
The following exchange between the court and counsel occurred on November 7, 2005, prior to trial:
“MR. TREISMAN: ... As we are understanding from Mr. Thomas’s testimony, what essentially happened is a series of robberies occurred. Mr. Washington was acting as a look-out or get-away driver. And as you piece it together – and Mr. Wilson was the main figure in the robberies. On the robbery of the 8th Mr. Washington participates in the robbery, but otherwise, that isn’t the case through the remainder of the robberies. And the relevance then ... is to corroborate again Mr. Thomas’s assertion. ... But from what I’m gathering, this is the only robbery that is reported on the relevant date of the 16th. There are events before and after on different days, but on that date, as best as I can tell, there is this robbery that is reported. And it’s not as though there were lots of them, and we couldn’t tell what was cooking and so forth. This is in the general area where they are arrested in the vehicle. And it is, again, uncharged. That is correct. ... I’m just showing that there is a robbery that took place. It supports Mr. Thomas’s statement that Mr. Washington said that there was a robbery. And the credibility of Mr. Thomas and his ability to relate details and where they would come from is wholly relevant to this case. ... If it were not from Mr. Washington, our position would be very different. ... [W]ithout getting into the inner workings of how I chose to pursue the charges, we did not pursue the 16th against either Mr. Wilson or Mr. Washington. With that said, it doesn’t mean that the evidence is not very probative. In fact, in this case Mr. Thomas is going to be looked at closely by this jury as to whether he is accurate and whether the information he has is information he would know from the defendants. And I submit to the Court that it is not prejudicial to explain that a robbery did, in fact, occur on that date. There is no evidence to connect the defendants to it, save and except from Mr. Washington’s own mouth. In the absence of that statement, it would not have been raised at all. But given an admission to it, it puts in stark and clear light that this was a series of events between two people. ... And again, it is not 1101(b) evidence. There’s no character evidence being brought in at all. You would have to know the identify of the person involved in order for it to be character evidence. We don’t know the identity of the person, save and except from his statement. That is, Mr. Washington’s own statement. He says he did this. Well, we show that, it fact, something occurred that he would have done or could have done. It supports the fact that Mr. Thomas isn’t just making this up out of old cloth, which is going to be the position of the defense.
“THE COURT: Well, I’m kind of little confused. You keep talking about 1101(b) evidence, which is not the section about character. [¶] ... [¶]
“MR. TREISMAN: 1101(b) is exception to prior instances of conduct which are thought to be or viewed as character evidence. ... In this case I’m not really using it for that purpose at all. I’m using it to support Mr. Thomas’s assertion that Mr. Washington said he committed a robbery that day. And as best as we know, there was one robbery reported that day.
“THE COURT: Okay. Mr. Revvill?
“MR. REVVILL: Well, I still think that ... based upon the primary argument that Mr. Treisman offered that he is offering it to use specific instances of conduct, some sort of, I guess, admitted conduct to prove conduct on a specific occasion. I mean, it seems clear to me that part of what prosecuting counsel is trying to do here is to do that, because it sounds like that’s what he said. That this is relevant to a scheme.
“THE COURT: Why wouldn’t it be admissible then?
“MR. REVVILL: And that’s the question. And again, we have to look at is he offering it for identity? Is it just pattern and scheme evidence? … [D]oes it have sufficient characteristics to make it qualify under 1101(b)? ... But I’m not sure that this one – the fact that there was a robbery that happened on the 16th in a Subway by one person, and again, there may have been a gun that resembled the gun that was described in the robberies is sufficient to allow it to come in under 1101(b) as exception to 1101(a). And then, of course ... what I think Mr. Treisman is saying it is being offered to prove that, but then he says it’s not really. It really isn’t that. So he’s merely offering it to support the credibility of his testifying witness.
“THE COURT: Which is 1101(c).
“MR. REVVILL: And I’m not sure can I see that. Do you have that section? I’ve looked at every one of them. I think it is character. And also, in this particular case, again, we have the evidence or the issue contained in the police report that the identity of the person in the store does not match that of Mr. Washington. For all we know, Mr. Thomas knows about this robbery cause he was a participant. We don’t have the evidence of that. We would love to have it, but we don’t.
“THE COURT: All right. Well, basically, the Court’s ruling would be tentatively I’ll allow it. However, it’s going to be reserved until after hearing Mr. Thomas’s actual testimony. And the reason for that is it appears that Mr. Thomas’s testimony is still to be developed from what he was testifying to here yesterday in comparison to the other reports that were made. So whether or not it’s still relevant will depend on what he says. I mean, you’re basically offering to support his credibility, and that’s fine. But I think we need to have something, whether or not you’re supporting it. In other words, if he comes in here and doesn’t talk about that, then we have a different issue. So ... any evidence about that should come afterwards and probably need a brief hearing before we do that.”
Thomas testified he met with appellant and Wilson at the West Side Market on November 16, 2004, and that appellant talked about committing some robberies. Thomas recalled telling Detective Camacho that a robbery occurred that same day. Thomas said he attempted to accurately state his knowledge to Detective Camacho. With certain exceptions, Detective Camacho confirmed that Thomas’s trial testimony was essentially consistent with the statement Thomas had given to Camacho.
Ravneet Kaur testified a thin, African-American male robbed her Subway Sandwich Shop on East Gettysburg Avenue at about 6:00 p.m. on November 16, 2004. Nasa James, who was in the parking lot of the Subway during the robbery, said he was present in the evening hours. Thomas testified he, appellant, and Wilson had gone to Sheldon’s Calwa home on November 16 while it was still daylight. They stayed until around 7:30 or 8:00 p.m. Appellant left and returned one time during their stay at Sheldon’s residence.
As noted above, on direct appeal a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Ray, supra, 13 Cal.4th at p. 349.) Here, as appellant himself observes, defense counsel could have reasonably concluded that Thomas’s chronology provided him with an alibi because he, Thomas, and Wilson were at Sheldon’s Calwa residence at the time the robbery occurred on East Gettysburg Avenue. Although Thomas said appellant may have left Sheldon’s home at one point, counsel could have reasonably determined that appellant could not have departed the Sheldon home, traveled to the Subway location, and returned to the Sheldon home within the narrow window of time described by Thomas. Such a tactical decision precludes a finding of ineffective assistance of counsel.
IV.
EVIDENCE THAT APPELLANT USED AND POSSESSED DRUGS
Appellant contends the trial court abused its discretion under Evidence Code section 352 and violated his due process right to a fair trial by admitting evidence that appellant used and possessed drugs.
A. Specific Contention
He specifically argues:
“The evidence that the police found cocaine on appellant did nothing to show Thomas was telling the truth when he described his relationship with appellant as based upon drugs. Thomas was present when the police found cocaine on appellant. It was only afterwards that Thomas told Detective Camacho about the nature of his relationship with appellant. Apart from Thomas’s word, no evidence showed that Thomas knew about appellant’s drug usage before he witnessed the police find cocaine on appellant.
“The evidence of appellant’s drug usage was not necessary to support Thomas’s claim that he associated with appellant and Wilson. The issue was not in dispute. The fact that Thomas associated with appellant was clearly proven by the evidence that Thomas was sitting next to appellant in the front seat of appellant’s car when the police stopped the car on November 16, 2004. The fact that Thomas knew Wilson was clearly proven by the evidence that Thomas knew Wilson had committed robberies, Thomas identified a photograph of Wilson for Detective Camacho, and Thomas showed the police where Wilson lived.
“Thomas’s addiction to heroin was highly probative of his credibility because it went directly to the key issue of whether his allegations about appellant’s and Wilson’s admissions were accurately perceived, accurately remembered, and accurately reported. Although Thomas’s drug usage was highly relevant, appellant’s drug usage was not. The matter in dispute was whether or not appellant and Wilson in fact made the alleged admissions to Thomas. Why they were together when the alleged admissions were made is virtually irrelevant. Whether they were together because appellant and Wilson wanted to do drugs with Thomas as opposed, say, to play cards with Thomas does not make it more likely that Thomas was telling the truth about the alleged admission.
“Moreover, the drug evidence had only remote or slight probative value on the issue of motive. The trial court acknowledged as much by finding the evidence had probative value to show ‘perhaps even motive for the offenses.’ [¶] ... [¶]
“... [T]he evidence showed appellant did not need to commit robbery to get money for his drug habit. Appellant had a reliable source of money to pay for his drugs: Thomas. Under their arrangement, Thomas supplied appellant and Wilson with money, which they then used to buy drugs for themselves and Thomas. Thomas’s testimony that ‘sometimes’ he was paid back shows that sometimes he was not. Yet Thomas gave no indication that he ever pressured appellant to pay him back or ever threatened to end the arrangement if appellant did not pay him back. The evidence indicates he did neither. He needed heroin to feed his habit, and he relied on appellant to buy it for him because [he] could not buy it on his own. His reliance on appellant for his heroin supply strongly suggested he would continue to supply appellant with money regardless of whether he was paid back. Thomas indicated he could afford to do so, since he got money every day from his family business.
“Under all these circumstances, the court abused its discretion in finding the evidence relevant on the issue of appellant’s motive to commit the charged robbery. The record supports a finding that the drug evidence was not highly probative on the issue of motive.”
B. Procedural Background
Prior to trial, appellant asked the court to preclude evidence of his possession of drugs at the time of arrest on the ground such evidence was irrelevant. To the extent such evidence could bolster the credibility of Thomas, appellant argued it should be excluded under Evidence Code section 352. The prosecutor maintained the events of November 16, 2004, were relevant to the case and “directly supportive of Mr. Thomas’s assertion that he has a relationship with the defendants.” The prosecutor elaborated:
“… [Thomas] [k]nows them and had conduct with them. In particular that provided motivation for the robberies, but in part that supports his assertion that apart from their statements he was involved in drug usage with them. That Mr. Washington became nervous when police began to pursue the vehicle. To follow the vehicle. And he gave a false name and so forth. So the description and circumstances that Mr. Thomas is relating to the jury, and particularly in light of his history supporting his credibility is important to the prosecution. But it is more importantly relevant to the case. The depth to which he knows the individuals, the circumstances under which he knows these individuals. ... I wasn’t planning to use [Washington’s] plea to the 11350. Cause I’m not trying to unduly prejudice him with his acknowledgment that the drugs are his by way of a plea because along with that is acknowledgment of the felony. But separate from that is that he was in possession of it. It was analyzed as being cocaine and heroin. And Mr. Thomas is stating that that’s what they used together. That, again, that he was nervous. That he made statements that they had a connection throughout the course of the day on the 16th and so forth. ... So it is in the context of the case extremely relevant to the nature of the relationship, the circumstances under which he knows them and under which the information that he obtained from Mr. Washington and Mr. Wilson were, in fact, obtained. I have no doubt that his sobriety will be an issue for cross-examination. I have no doubt that the defense will do their best to make him look incredible and will attack him based on not only his priors, but also the degree and extent to which he has a memory of these things. And by way of both, how well he knows these individuals. And by way of his an explanation for what may or may not have affected his memory. I think that the full circumstances should be known by the jury.”
The trial court ruled:
“… Having reviewed the arguments and the pleadings on file, the motion to exclude that particular evidence at this point is denied. Court does find it does have probative value, and that that probative value is greater than any prejudicial value. That appears to be part and parcel of the whole case and certainly goes to not only Mr. Thomas’s knowledge of them, but what was going on at the time and perhaps even motive for the offenses. So that motion is denied as to both defendants.”
The prosecution subsequently introduced evidence to show appellant had a usable quantity of cocaine base on his person when police searched him on November 16, 2004. Robert Thomas testified he hung out with appellant and Wilson between two and four months during that same period of time. Thomas said he, appellant, and Wilson did drugs together. Thomas admitted he was a heroin addict at that time and used between two and three grams of that substance every day. According to Thomas, appellant and Wilson used a mixture of heroin and cocaine known as “speedball” or “John Belushi.” Thomas said he supplied money to appellant and Wilson, the latter two purchased drugs, and then the trio shared the drugs. Thomas said appellant and Wilson sometimes paid him back in the evening and sometimes paid him back with drugs.
C. Governing Law
Evidence Code section 353 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains, supra, 75 Cal.App.4th at p. 1170.)
A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless there appears of record a timely and specific objection to or a motion to exclude or to strike the evidence. (People v. Morris (1991) 53 Cal.3d 152, 187, overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) “While ‘Evidence Code section 353 does not exalt form over substance’ [citation], it does require sufficient specificity of evidence and legal grounds for the opposing party to respond if necessary, for the trial court to determine the question intelligently, and for the appellate court to have a record adequate to review for error.” (People v. Ramos (1997) 15 Cal.4th 1133, 1172.)
Generally speaking, an appellate court is not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so. However, an appellate court is barred from doing so when the issue involves the admission (Evid. Code, § 353) or exclusion (Evid. Code, § 354) of evidence. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) Neither a reviewing court nor the defendant can avoid the command of Evidence Code section 353 requiring “‘an objection to or a motion to exclude or to strike the evidence.’” (People v. Visciotti (1992) 2 Cal.4th 1, 53, fn. 19.) Moreover, a trial court’s erroneous admission of evidence does not require reversal unless it is reasonably probable the defendant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878.) Prejudice is never presumed; it must be affirmatively demonstrated. (People v. Zunis (2005) 134 Cal.App.4th Supp. 1, 4.)
D. Application of Law
Motive is the emotional urge which induces a particular act. (People v. Maurer (1995) 32 Cal.App.4th 1121, 1126-1127.) The chief elements of probative value are relevance, materiality, and necessity. Generally speaking, proof of the presence of motive is material as evidence tending to refute or support the presumption of innocence. Because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect and wide latitude is permitted in admitting evidence of its existence. (People v. Beyea (1974) 38 Cal.App.3d 176, 194-195; People v. Copeland (1959) 169 Cal.App.2d 713, 715.) “Evidence of motive adds warp to the pattern of guilt woven of circumstances. Whatever fact tends legitimately to show motive is proper proof of an assumed motive for the crime.” (People v. Weatherford (1947) 78 Cal.App.2d 669, 687.) Under California law, evidence of an accused’s narcotics addiction is inadmissible where it tends only remotely or to an insignificant degree to prove a material fact in the case. Narcotics use must have a direct probative value to establish motive before its admission is permitted. (People v. Felix (1994) 23 Cal.App.4th 1385, 1392-1393.)
In the instant case, the trial court admitted evidence of drug usage, saying it “appears to be part and parcel of the whole case and certainly goes to not only Mr. Thomas’s knowledge of them, but what was going on at the time and perhaps even motive for the offenses.” Thomas’s relationship with appellant and Wilson was based upon their common interest in and usage of illicit drugs. Thomas claimed that appellant and Wilson supplied Thomas with drugs. As respondent points out, the fact the trio used drugs together made it more likely that appellant would have shared information with Thomas about committing robberies or suggesting the commission of additional robberies to fund their purchases of narcotics. Officers found drugs on appellant’s person and in his vehicle, the Jeep. This physical evidence supported Thomas’s testimony about drugs and helped to corroborate his testimony regarding appellant’s statements about various robberies.
Appellant cites several cases for the proposition that the prejudicial effect of evidence of drug usage/addiction outweighs its probative value as evidence of motive. In the instant case, there is no direct evidence that appellant committed robbery to purchase drugs. However, Thomas’s testimony was indicative of such a motive. Appellant contends he did not need money to buy drugs because Thomas, who worked in a family funeral home, supplied the money for such transactions. Nevertheless, Thomas testified that appellant and Wilson would pay him back “[l]ater on in the evenings” with either cash or access to drugs. Thus, a monetary motive for the alleged robberies still existed and Thomas’s testimony was supportive of such a motive. The trial court did not commit prejudicial error by admitting testimony about appellant’s drug usage under all of the facts and circumstances of the instant case.
Appellant cites to three cases in support of his proposition. (People v. Cardenas (1982) 31 Cal.3d 897 [Trial court permitted prosecution to introduce evidence of defendant’s narcotics addiction to establish financial motive for attempted robbery of a 7-Eleven store. Witnesses testified at length about the defendant’s physical condition at the time of arrest, the length of time the defendant had been using narcotics, and the alleged size and value of his heroin habit. The Supreme Court concluded this testimony tended only remotely to prove that the defendant had committed the attempted robbery of money from the store. The probative value of the evidence was substantially outweighed by the inflammatory effect of the testimony on the jury]; People v. Gonzalez (1990) 51 Cal.3d 1179 [In a first-degree murder prosecution, the defendant conceded shooting a deputy sheriff engaged in the execution of a search warrant. He claimed mistaken self-defense and denied having any reason to expect a visit from law enforcement. In doing so, the defendant placed his knowledge, intent, and motive in dispute. Contrary to the defendant’s claim, evidence of narcotics activities in and around his residence suggested that the raid was not a surprise. This was particularly true where one Martinez, the actual narcotics suspect of the deputies, was in the house at the time of the shooting. Thus, the narcotics evidence was more than “remotely” relevant to the issues of preparation, plan, knowledge, absence of mistake or accident, premeditation, deliberation, malice, and knowing murder of a peace officer]; People v. Felix, supra, 23 Cal.App.4th 1385 [In a case entailing multiple counts of residential burglary, the trial court admitted evidence of the defendant’s heroin use to prove his motive for burglarizing his sister’s home. The defendant told a police detective he burglarized his sibling’s home to sell the items and buy drugs. The direct connection with the crime was established by the defendant’s own statements and not by the opinion of an officer based on observations on an unrelated occasion. The appellate court concluded this was a classic example of direct probative evidence establishing motive. The admission of evidence of motive was not error. Such evidence is inadmissible where it tends only remotely or to an insignificant degree to prove a material fact].)
V.
CUMULATIVE ERROR
Appellant lastly contends the alleged evidentiary errors were prejudicial individually and cumulatively and reversal of his conviction is required.
He specifically argues:
“This is a close case, turning primarily upon Thomas’s credibility. As the prosecutor told the jury: ‘The issue is whether or not [Thomas] honestly and truthfully told you what’s going on in this case, and whether he really, whether he tried to nail somebody or whether he’s being honest.’ In cases like this one, ‘“any substantial error tending to discredit the defense, or to corroborate the prosecution, must be considered as prejudicial.”’ (People v. Gonzales (1967) 66 Cal.2d 482, 494; People v. Briggs (1962) 58 Cal.2d 385, 407.)
“Appellant was prejudiced by admission of the evidence of every uncharged robbery, and the prejudice was compounded by the admission of the evidence of all four uncharged robberies. The evidence of the uncharged robberies was used improperly to bolster Thomas’s credibility and to portray appellant as a professional robber who was involved in a large scale scheme to rob stores in the community and, therefore, as having a propensity to commit the charged robbery. The prosecutor relied heavily on this evidence in closing argument.
“Appellant was also prejudiced by the admission of the drug evidence which was used improperly to bolster Thomas’s credibility and to portray appellant as a loathsome drug addict who committed robbery to get money to buy heroin and cocaine. The prosecutor emphasized the drug evidence in his closing argument, telling the jury repeatedly that it was the motive for the robbery.…
“Needless to say, appellant was also prejudiced by Wilson’s confession that incriminated appellant. It went to the heart of the case, since the identity of Wilson’s accomplice was the key issue in the case.
“The prejudice to appellant of the admission of all of this evidence was compounded both by the absence of any limiting instruction and by prosecutorial argument which invited the jury to consider the evidence for clearly impermissible purposes. Under the circumstances of this case, the errors were prejudicial individually under any standard because any of the errors could have tipped the scales to conviction.
“If this court determines that no single error is individually prejudicial, appellant contends that the combined effect of the evidentiary errors has created prejudice....”
In a close case, the cumulative effect of multiple errors may constitute a miscarriage of justice. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236; see People v. Holt (1984) 37 Cal.3d 436, 458-459.) Theoretically, the “cumulative errors doctrine” is always applicable in criminal cases. The litmus test is whether the defendant received due process and a fair trial . Generally speaking, an appellate court (1) reviews each allegation; (2) assesses the cumulative effect of any error; and (3) determines whether it is reasonably probable the jury would have reached a result more favorable to the defendant in their absence. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
We have devoted a substantial amount of text to the instant appeal and a second detailed review of appellant’s contentions is unnecessary here. Although appellant has made numerous allegations of error, we have not found any errors affecting the verdict. (People v. Bloom (1989) 48 Cal.3d 1194, 1232.) Thus, there was no accumulation of errors constituting a miscarriage of justice in the instant case. (Cal. Const., art. VI, § 13.)
Reversal for alleged cumulative error is not required.
DISPOSITION
The judgment is affirmed. The superior court is directed to correct the abstract to reflect imposition of a concurrent term on count II and to transmit certified copies of the corrected abstract to all appropriate parties and entities.
WE CONCUR: VARTABEDIAN, Acting P.J., DAWSON, J.