Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR198420
Haerle, J.
I. INTRODUCTION
Defendant and appellant Terrence Webb was convicted of one count of robbery (Pen. Code, § 211). The court also found true a serious felony allegation (§ 667, subd. (a)(1) and a prior strike conviction allegation (§§ 667, subds. (b)-(i) and 1170.12).
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Webb argues that the trial court (1) erred in admitting evidence, pursuant to Evidence Code sections 1101 and 352 of a prior robbery; (2) erred in instructing the jury on the use of the testimony of a single witness; (3) erred in its trial of the prior strike allegation; and (4) improperly used the phrase “the People” in instruction rather than “the state.” Finding no error, we affirm the conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
During the evening of June 22, 2008, a 7-Eleven convenience store in Vallejo was robbed by two men wearing hooded sweatshirts and bandanas. One of the two men pointed a black gun with a long barrel at the cashier and told her to open the register. The gun, according to one witness, didn’t “look real....” Another witness described the gun as “resembling almost like a sawed off shotgun.” The second robber held a gun described as “a metallic handgun.”
One of the robbers pointed the sawed off shotgun at a male customer and told him to sit on the ground. This robber was wearing a dark blue hoody. He was African-American, as was the other man with him. One of the men took money out of the register, and also “grabbed some other stuff,” which the witness believed to be lottery scratcher tickets.
The convenience store clerk testified that the men who robbed the store told her to open the register or they would shoot her. They asked her if she had more cash, and she said she didn’t. In addition to taking the money in the register, they also took the money out of her purse. The men also took some Lotto tickets. She could not describe the men to the police because their faces were covered. She recalled that one of the men was wearing “black baggie pants” and that both men were African-American.
The parties entered into a stipulation that Lotto tickets were taken from the store during the robbery.
Vallejo Police Officer No testified that on June 22, 2008, she responded to a robbery call at the 7-Eleven on Tennessee Street in Vallejo. The cash register was open when she arrived and the clerk was “distraught.” Twenty minutes after she arrived, she learned that another officer had taken several suspects into custody. She brought the male witness and the store clerk to an in-person show-up. The male witness was shown one suspect and was unable to identify him. The store clerk couldn’t “tell either way” if one of the men was the robber. She identified the second person by his pants, and stated she recognized him. This person was J.S.
Vallejo Police Officer Thompson testified that he was a canine handler for the police department. On June 22, 2008, he received a report of an armed robbery at the 7-Eleven on Tennessee Street. While he was responding to this report, he learned that witnesses had seen two subjects fleeing in the vicinity of the robbery. After some searching, his dog led him to an abandoned apartment, in which two people were located. He identified Webb as one of these two people.
The two individuals were placed in custody and, after live-show-ups in which the victims of the robbery were asked to identify them, Thompson located in the apartment’s bathroom a black hooded sweatshirt and black sweatpants. Inside the pockets of the sweatpants he found “numerous amount of quarters... some Susan B. Anthony coins, coins, and some dollar bills” as well as lottery tickets. He also found a handgun in the bushes behind the apartment.
J.S., who was 16 years old at the time, testified about the 7-Eleven robbery. He watched the surveillance tape of the robbery and identified Webb as the “person in the navy hooded sweatshirt.” He identified himself as the person in the surveillance tape wearing the “lighter-colored sweatshirt.” During the robbery, he had in his hand a BB gun. He identified a second BB gun as the gun used by Webb during the robbery. He had tried to apply for a job at the 7-Eleven and was turned down. He felt that he had been discriminated against and, for this reason, targeted the 7-Eleven on Tennessee Street.
He and Webb discussed robbing the store earlier in the day when they observed some kids who’d been “kicked out of the store.” Webb suggested they “teach them a lesson.” He understood this to mean that they “go in there... and just take some stuff.” They didn’t want to use real guns, so they used BB guns. When he got in the store he “grabbed some lottery tickets and... some cash....” While he did so, Webb told a male customer to sit down. He thought Webb took about $20 from the cash register. They went to an “abandoned place” and undressed. He hid his gun, but did not know what Webb did with his. The police came, knocked on the door and then kicked it in. He told the police that the handgun belonged to Webb. He admitted that he “switched the story on them because I was scared.” In fact, the longer gun belonged to Webb.
James O’Connell, a police officer with the City of Vallejo, identified Webb and J.S. as the two men who were in the abandoned apartment when the door was kicked in by the police. He spoke with J.S. first. J.S. told him that he had gone to the 7-Eleven with Webb. J.S. said that after the robbery he threw his weapon in the bushes. J.S. said he used the longer gun in the robbery. He also spoke with Webb. An objection to further inquiry about this conversation was sustained.
Defendant’s mother testified that Webb was living with her when the robbery occurred. Her water had been turned off at the time and he told her he was on Tennessee Street taking a shower because their water had been cut off.
The jury found Webb guilty of robbery and not guilty of false imprisonment. The court then found true the serious felony allegation and also found the strike allegation true. Webb was sentenced to an 11-year term. This timely appeal followed.
III. DISCUSSION
A. The Prior Robbery Conviction
Defendant argues that the trial court erred in admitting evidence of his prior robbery conviction because (1) it was admitted under a legal theory other than that argued by the People; (2) it was not admissible to show intent or motive; and (3) the common characteristics of the prior robbery and the charged crime were not sufficient to establish identity under Evidence Code section 1101, subdivision (b). We disagree.
The prior conviction involved a robbery of a clerk at a Valero gas station on Tennessee Street in Vallejo that occurred on July 11, 2007. When the police questioned defendant three days after the robbery, he was wearing a hooded jacket similar to that worn by the person who robbed the Valero station. He also had a BB gun in his waistband. A second person – a juvenile who also had a BB gun – assisted defendant in the robbery. Defendant admitted to “going in, taking money. He wanted money for his birthday and to grab money and some Lotto tickets.” The gun defendant used in the robbery was not a real gun, but was “metal with plastic.” Defendant, who was identified by the police officer who investigated this robbery, was convicted of second degree robbery.
The People filed a motion in limine, under Evidence Code section 1101, subdivision (b), seeking to admit evidence of defendant’s prior robbery conviction. The People stated that this evidence would be used “to show that the defendant has a common plan or modus operandi (M.O.) during these acts.” At the hearing on the motion, the People stated that “I know I relied on the common plan or modus operandi aspect of 1101(b) in my motion. There are other things that I have to prove in this case including intent, motive. Because such similar crimes were committed in such a short period of time, this evidence goes also to those factors as well but I do believe this conduct is so remarkably similar that it does indicate a common plan.”
The court granted the motion, ruling broadly “I think they are sufficiently similar to allow the 1101(b) evidence considering Section 352 of the Evidence Code and find the probative value outweighs any prejudicial effect. And this is after considering the totality of the circumstances and evidence.”
Although the People appeared to seek the introduction of this evidence to show modus operandi and intent, the jury was instructed that it could consider the prior robbery for purposes of “[i]dentity” (that appellant “was the person who committed the offenses alleged in this case”) and “[c]ommon [p]lan” (that appellant “had a plan or scheme to commit the offenses alleged in this case”).
Citing People v. Lewis (2001) 25 Cal.4th 610, 637, defendant contends that the trial court applied the “wrong legal standard” because the evidence of the prior crime went to intent, and, therefore, we should review this question under the de novo standard of review. He is incorrect.
The trial court’s broad ruling does not specify whether the other crimes evidence was admitted to show intent, modus operandi, or identity. Instead, it simply found the two crimes “sufficiently similar” to permit admission under Evidence Code section 1101, subdivision (b). This does not mean, however, that the trial court applied an incorrect legal standard. As the People point out, we presume the trial court’s ruling was correct. “All intendments and presumptions are indulged to support [the ruling] on matters as to which the record is silent....” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, in People v. Hughes (2002) 27 Cal.4th 287, 333, a case cited by the People, the prosecutor sought to introduce evidence of a prior conviction for receiving stolen property in order to show intent. The trial court admitted the evidence. Our Supreme Court found there was no error, holding that the evidence was not only relevant to establish intent but also “the trial court did not abuse its discretion... in concluding implicitly that [the stolen property bore] sufficiently distinctive ‘signature’ characteristics to support an inference that the same person committed both the charged and the uncharged acts.” (Ibid.) Here, too, we conclude the trial court implicitly found the evidence of the prior crime was sufficiently similar to the charged crime to be relevant on the issue of identity. In so doing, the trial court did not apply an erroneous legal standard, as defendant argues.
Nor did the trial court err in reaching that conclusion. Under the applicable legal principles, evidence of uncharged misconduct is inadmissible if its only relevance is to show that the defendant possessed a disposition or propensity to commit the charged offense. (People v. Gibson (1976) 56 Cal.App.3d 119, 127; Evid. Code, § 1101, subd. (a).) “[T]his rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition,” such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506; Evid. Code, § 1101, subd. (b).) “On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1147.)
In general, “[e]vidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402.) “A greater degree of similarity is required in order to prove the existence of a common design or plan.” (Ibid.) “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.” (Id. at p. 403.)
In addition, when the trial court finds that uncharged misconduct evidence is relevant to prove a material fact other than the defendant’s criminal disposition, it must then consider whether the potential for prejudice outweighs the probative value of the evidence under Evidence Code section 352. “‘The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’” (People v. Lewis, supra, 25 Cal.4th at p. 637.) The trial court’s resolution of these issues is reviewed for abuse of discretion. (Kipp, supra, 18 Cal.4th at p. 371.)
“‘The principal factor affecting the probative value of the evidence of defendant’s uncharged offenses is the tendency of that evidence to demonstrate the existence of’ the fact for which it is being admitted.... [Citation.] Other factors affecting the probative value include the extent to which the source of the evidence is independent of the evidence of the charged offense, the amount of time between the uncharged acts and the charged offense and whether the evidence is ‘merely cumulative regarding an issue that was not reasonably subject to dispute.’ [Citations.] The primary factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.” (People v. Walker (2006) 139 Cal.App.4th 782, 806, citing Ewoldt, supra, 7 Cal.4th at pp. 404-406; People v. Balcom (1994) 7 Cal.4th 414, 427 (Balcom).)
As we have explained, the highest degree of similarity between the uncharged crime and the charged crime is required when the evidence is used, as it was here, to show identity. “Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator.” (Ewoldt, supra, 7 Cal.4th at p. 394.) “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Id. at p. 403.)
The trial court did not abuse its discretion in concluding this was the case here. In both crimes, a man wearing a hood and a mask, carrying a fake weapon and accompanied by a juvenile, robbed a convenience store on Tennessee Street in Vallejo of cash and lottery tickets. As the People point out, defendant recognized that the offenses were “nearly identical.” Given that the evidence was admissible to show identity it was certainly also admissible to show modus operandi and intent.
We do not agree that the common elements of the two crimes are so generic as to be indistinct, as the court held in People v. Rivera (1985) 41 Cal.3d 388, 392-393. In Rivera, the court found that it was not enough to show that two crimes occurred on Friday nights, in the late evening, at convenience markets in the same town in which three or more perpetrators escaped with getaway vehicles and, prior to the crimes, people were observed standing outside the stores, which were located on street corners. Defendant’s attempt to analogize this case to Rivera is unconvincing. The elements of the crime in Rivera were truly commonplace. Here, in contrast, the elements of these crimes, taken together, are quite distinctive, involving as they do defendant’s use of a juvenile accomplice, his decision to target convenience stores on Tennessee Avenue, the fact that he hid his identity in both crimes using a hood and a bandana and chose to take not only cash, but also lottery tickets. Taken alone, the elements of these crimes may indeed be somewhat common but, taken together, they effectively establish a signature.
Nor did the trial court err in finding that the evidence was also admissible under Evidence Code section 352. (People v. Thompson (1988) 45 Cal.3d 86, 109.) Under section 352, we consider whether the probative value of the evidence of defendant’s uncharged misconduct is “‘substantially outweighed by the probability that its admission [would]... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)” “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’” (Ewoldt, supra, 7 Cal.4th at p. 404.) The Ewoldt court cautioned that uncharged misconduct evidence, even if relevant, may nevertheless be cumulative and unduly prejudicial if the particular fact for which it is offered is not reasonably subject to dispute. (Ewoldt, supra, 7 Cal.4th at pp. 405-406.)
The trial court did not abuse its discretion in finding that the admission of the uncharged robbery did not violate Evidence Code section 352. “The principal factor affecting the probative value of the evidence of defendant’s uncharged offenses is the tendency of that evidence to demonstrate the existence of” identity. (Ewoldt, supra, 7 Cal.4th at p. 404.) As we have described, the two robberies were quite similar, certainly similar enough to establish that defendant was the person involved in both crimes. Another factor we look at in determining probative value is whether the evidence of the charged and uncharged crimes come from “independent sources,” that is, whether they were investigated by different law enforcement personnel. (See id. at pp. 404-405.) The record makes clear that different Vallejo police officers were involved in the investigation of these crimes.
Finally, the probative value of the evidence is also increased by the fact that the offenses occurred closely in time (within approximately one year) and, in addition to being close in time, were also close in proximity, as both occurred on Tennessee Street in Vallejo. (See Kipp, supra, 18 Cal.4th at p. 371.)
We weigh against the probative value of this evidence the danger of undue prejudice, of confusing the issues, and of misleading the jury. With regard to undue prejudice, although evidence of the uncharged incident will often present the possibility that a jury might be inclined to view the evidence of defendant’s prior involvement in a burglary as evidence of his criminal propensities, “prejudice of this sort is inherent whenever other crimes evidence is admitted [citation], and the risk of such prejudice was not unusually grave here.” (Kipp, supra, 18 Cal.4th at p. 372.) Here the evidence of the uncharged robbery was not substantially more inflammatory than the evidence concerning the charged offense. In addition, any prejudice attributable to this evidence of prior misconduct is mitigated by the fact that the defendant was convicted of the uncharged robbery. Thus, the possibility that a jury might convict the defendant in order to punish him for the uncharged robbery is lessened by the fact that he had been punished for the prior offense. (Balcom, supra, 7 Cal.4th at p. 427.)
We conclude, therefore, that the trial court did not abuse its discretion in admitting the other misconduct evidence.
Moreover, even if the court did err in admitting this evidence, it was harmless under People v. Watson (1956) 46 Cal.2d 818. J.S.’s testimony convincingly placed defendant at the scene and, in addition, defendant was found with J.S. shortly after the robbery, and stolen lottery tickets and a gun used in the robbery were found nearby. Under Watson, the admission of the other crimes evidence did not change the outcome of this case.
B. Instructional Error
Defendant argues that the trial court instructed the jury, pursuant to CALCRIM No. 301, that “the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all of the evidence.”
Defendant now argues that the trial court erred in giving this instruction because CALCRIM No. 301 “misstates the law when an accomplice testifies against the accused.” He argues that CALCRIM No. 301 is contrary to CALCRIM No. 335, an instruction also given to the jury by the trial court. (See People v. Whisenhunt (2008) 44 Cal.4th 174, 214.
CALCRIM No. 335 provides, consistent with Evidence Code section 1111, that a jury cannot convict “based on the statement of an accomplice alone,” but rather such a statement may convict a defendant only if the statement is supported “by other evidence that you believe” is “independent of the accomplice’s statement” and which “tends to connect the defendant to the commission of the crimes.”
On more than one occasion, our Supreme Court has considered the issue defendant raises, albeit in cases involving CALJIC No. 2.27, the analogous instruction to CALCRIM No. 301. In one such case, the court found that there was no error in giving this instruction when, looking to the instructions as a whole, reasonable jurors “would have recognized CALJIC No. 2.27 as setting forth the general rule and the [instruction] on accomplice testimony as an exception to it.” (People v. Andrews (1989) 49 Cal.3d 200, 216-217.) In a later case involving this issue, the court made clear that there is no error when CALJIC No. 2.27 is given, so long as the jury “‘is instructed on the kind of evidence necessary to constitute corroboration, on the method of determining whether the accomplice’s testimony was corroborated, on viewing the accomplice’s testimony with distrust, and [whether] the parties proceed[ed] on the premise that corroboration is required.’” (People v. Noguera (1992) 4 Cal.4th 599, 630.)
Here, the trial court met the requirements set out in Noguera. The court informed the jury that if the crimes were committed, J.S. was an accomplice, instructed the jury on the nature and sufficiency of corroborative evidence, informed the jury that one accomplice may not be corroborated by another, and that accomplice testimony should be viewed with distrust. In addition, as in People v. Chavez (1985) 39 Cal.3d 823, 831, the People pointed out the need for corroboration. Accordingly, we find no error.
C. Prior Strike Trial
On October 8, 2008, after the jury was discharged, the trial court found true an allegation that defendant had suffered a prior serious felony conviction. (§ 667, subd. (a)(1).) On November 20, 2008, the court also found true the allegation that defendant had suffered a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12.) Defendant argues that the court erred in making the November 20, 2008, finding because it was based on an amended information filed after the jury was discharged. He is incorrect.
The original information, filed July 30, 2008, contained one significant error: it named the wrong person as the robbery victim. This information did, however, allege both the serious felony enhancement and the strike allegation the court ultimately found true.
On August 6, 2008, the People moved to amend the original information to correct the error in the victim’s name. The amended information, however, omitted the strike allegation.
On August 8, 2008, in court, the People withdrew the motion to amend which erroneously omitted the strike allegation. At the same time, the court gave defense counsel a copy of the original information which did contain this strike allegation. Defense counsel acknowledged that he’d received a copy of the original information and entered guilty pleas and denials of the enhancements and allegations.
The original information containing the incorrect victim name was read to the jury on October 6, 2008. At that time, the People told the court that an amended information had been filed. The court corrected counsel, and stated that the amended information was not, in fact, filed. The court then permitted the original information to be amended by striking out the victim’s name and inserting the correct name on the original information. The record contains a copy of the amendment with this handwritten change. Defense counsel did not object to this oral amendment. This document is the operative information in this case and contains the strike allegation that was omitted in the withdrawn amended information.
That same day, October 6, 2008, the trial court granted defendant’s oral motion to bifurcate the prior conviction allegation. The trial ended on October 8, 2008, and the jurors were excused. After the jurors were excused, the court found “the allegations pursuant to section 667(a)(1) to be true.” The court did not make any finding as to the strike allegation.
On November 4, 2008, at a sentencing hearing which was being continued, the court pointed out that the probation report had made recommendations for “667(a)(1) and a 667.5(b).” The court, apparently referring to the amended information that was withdrawn, stated “the 667(b) through (i) and 1170.12(a) through (d) was not alleged and was not found to be true. Everyone agree?” Both parties agreed. The court then stated, “I’m going to strike that.” It is not clear, as the People point out in their briefing, exactly what the court intended to “strike,” because the sentencing hearing was not held on this date, but was continued.
In any event, on November 8, 2008, the People sought to amend the original information. The People stated that their “notes are not entirely clear” but, apparently, it was necessary to amend the original information “again to reinstitute the strike allegation for the purpose of sentencing.”
At the November 8, 2008, hearing, the court, having reviewed the transcripts from the trial, rejected the People’s effort to amend the original information. The court summarized the various efforts made to amend the information in this case: first, the court noted that the original motion to amend was withdrawn on August 8, 2008, and “no action was taken.” The court then stated that “when we started the trial, the original Information was in the file. We proceeded on the Information, and this is the Information that was filed July 30, 2008.” The court explained that it “proceeded only on 667(a)(1) and found that to be true and did not make an announcement or consider the allegations under 1170.12(a) through (d) and 667(b) through (i)” because “someone had placed in the file the Amended Information..., which alleged only the prior conviction pursuant to Section 667(a)(1)....”
The court, therefore, made clear that its error in finding true only one of the two allegations was due to the fact that it was reading from the amended information that was never filed in the case. Using the correct information, the court then found true the prior conviction allegations.
Citing People v. Tindall (2000) 24 Cal.4th 767 and People v. Gutierrez (2001) 93 Cal.App.4th 15, defendant nevertheless argues that the trial court was barred from trying the prior strike allegation (§§ 667, subds. (b)-(i), 1170.12) because the prior strike was not alleged until after the jury was discharged. The factual predicate to this argument – that the operative information did not contain a prior strike allegation – is incorrect. Although the court and counsel at times appear to have been confused about which information was properly before the court, it is clear from the record that the original information, as amended orally by the court on the day the trial commenced (i.e., October 6, 2008) in order to correct an error in the name of the victim, was the operative pleading. This pleading, as we have noted, contained both allegations. Defendant’s reliance on the parties’ own mistaken understanding of which pleading was the correct document does not substitute for the record itself, which the trial court carefully and correctly summarized before pronouncing sentence.
D. Use of the Phrase “The People”
Defendant argues that the trial court erred in giving CALCRIM No. 220, which uses the term “the People” rather than the term “the state,” as used in section 1096. We have previously rejected this argument, and reject it again here. (People v. Romero-Arellano (2009) 171 Cal.App.4th 58, 65.)
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.