NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA080398, Joan Comparet-Cassani, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Daniel Calderon was convicted, following a jury trial, of one count of second degree robbery in violation of Penal Code section 211 and one count of assault with a deadly weapon in violation of section 245, subdivision (a)(2). The jury found true the allegation that appellant was armed with a firearm within the meaning of section 12022, subdivision (a)(1). Appellant admitted that he had served a prior prison term within the meaning of section 667.5. The trial court sentenced appellant to a total of six years in state prison, consisting of the middle term of three years for robbery plus a consecutive one year term for the assault plus a one year enhancement term pursuant to section 12022 and a one year enhancement term pursuant to section 667.5.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in instructing the jury with CALJIC No. 2.62, the prosecutor committed misconduct, and that section 654 barred imposition of sentence on the assault charge. We agree that section 654 applies to the assault conviction, and order sentence on that conviction stayed. We affirm the judgment of conviction in all other respects.
On December 1, 2008, about 11:00 p.m., Alvaro Ortega started to enter the lobby of his apartment building. There was a man in front of him opening the door and a man behind him. The man behind him grabbed him and pushed him into the door. Ortega threw his elbow at the man and in doing so turned around. Ortega later identified the man who grabbed him as appellant. The other man pulled a handgun partially out of his pocket.
Appellant yelled at Ortega in English. Ortega did not understand him. Ortega was in fear for his life. Appellant pulled Ortega's iPhone out of his pocket and kicked him. Ortega leaned against the wall. One of the men kicked him in the chest. He fell to the ground and was kicked. Ortega then felt a blow to his head with a hard object that he believed was the gun. The men took his property and ran off.
Mario Cabrera was getting out of his car near the apartment building. He saw two men running away to the north. Ortega yelled for help. When Ortega and Cabrera were closer together, Ortega said that he had been robbed. He asked Cabrera to call the police. Ortega's nose and mouth were bleeding. He had cuts on his head and his mouth. According to Cabrera, Ortega looked scared and was stuttering and shaking. Cabrera called 911 and stayed with Ortega until the police came.
Ortega told police that the robbers were two Hispanic males about 18 to 19 years old. They were both about five feet six inches tall and weighed about 145 pounds. One was wearing black pants and a black hoodie, the other a white t-shirt and blue pants. He said the one in black had the gun. The one behind him at the start of the robbery was slightly shorter and skinnier.
Two days after the robbery, police showed Ortega a 108 page book containing about 600 photos. Appellant's photo was in the middle of the book. When Ortega reached it, he slowed and put his finger on that page. He finished looking through the book, then returned to the page with appellant's photo and identified appellant as one of the robbers. He told police that appellant was the one with the gun. At trial, he testified that he realized about a week after the identification that appellant was not the one with the gun. Appellant was the robber who was initially behind him.
After Ortega picked the photo, police asked him what it was that Ortega remembered about the robber and Ortega told them that one of the robbers had acne on his forehead. The photo did not show acne on appellant's forehead. The photo on appellant's March 2007 driver's license shows acne on appellant's forehead. Both the driver's license information and information attached to appellant's booking photo from January 2009, show that appellant was about five feet four inches and weighed about 130 pounds. Appellant had slight acne on his forehead at the time of trial.
1. CALJIC No. 2.62
Appellant contends that the trial court erred prejudicially in instructing the jury with CALJIC No. 2.62. He further contends that the error violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. We agree that the trial court erred, but see no prejudice to appellant and no violation of his federal constitutional rights.
CALJIC No. 2.62 provides in pertinent part: "If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable."
If a defendant fully accounts for his whereabouts and denies the crime, the mere fact that a defendant's story is contradicted by other prosecution evidence does not support the giving of the instruction. (People v. Saddler (1979) 24 Cal.3d 671, 682; People v. Mask (1986) 188 Cal.App.3d 450, 455.) If a defendant provides an explanation for his whereabouts which seems implausible or bizarre, CALJIC No. 2.62 may be given. (People v. Mask, supra, 188 Cal.App.3d at p. 455.)
We agree with appellant that there is no evidence which he failed to explain or deny. To the extent that respondent contends that appellant offered an alibi which was implausible or bizarre, we do not agree. Appellant testified that he was on the computer playing poker through the website MySpace at the time of the crimes in this case. Records from that website showed that someone logged on appellant's account at 11:03 p.m. on December 1, 2008, the night of the robbery and assault in this case. Appellant testified that he did not share his MySpace password with anyone. There is nothing implausible or bizarre about this alibi.
We see no reasonable probability that appellant would have received a more favorable verdict if the instruction had not been given. (People v. Watson (1956) 46 Cal.2d 818, 836.) "CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence." (People v. Ballard (1991) 1 Cal.App.4th 752, 756.) The instruction contains other portions favorable to the defense. (Ibid.) Further, the jury was also given CALJIC No. 17.31, which tells the jury that not all instructions are applicable. (See People v. Saddler, supra, 24 Cal.3d at p. 684 [fact that court gave CALJIC No. 17.31 was relevant in assessing prejudice from erroneously given CALJIC No. 2.62].) The evidence against appellant was strong. Ortega selected appellant's photograph from a book of over 600 photos. He did not state that he was unsure or select any other photos. At trial, Ortega testified that he was sure of his identification. Appellant's alibi was not compelling. Anyone could have used his password and logged on for him, or appellant could have logged on from a different location than his motel room. Thus, the error in giving the instruction was harmless.
Appellant's argument that the instruction violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments is not supported by any argument. Appellant provides only one case citation, and that case concerns an instruction on prior bad acts by a defendant. For that reason alone, appellant's federal constitutional claim fails. Even assuming that the federal error had occurred, for the reasons set forth, supra, we would see no reasonable possibility that appellant would have received a more favorable verdict in the absence of the error. (Chapman v. California (1967) 386 U.S. 18, 36.)
2. Prosecutorial misconduct
Appellant contends that the trial court committed prejudicial misconduct during closing argument by communicating to the jury that appellant had the burden of proving his alibi, and that this error violated his federal constitutional rights. We see no misconduct.
A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade the trial court or the jury. (People v. Smithey (1999) 20 Cal.4th 936, 960.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
"A suggestion may not be made to the jury that an alibi must be proved by a preponderance of the evidence, or that alibi evidence must satisfy the jury of the defendant's innocence...." (People v. Costello (1943) 21 Cal.2d 760, 765-766 [discussing a jury instruction].)
Appellant points to the following argument by the prosecutor: "Beyond a reasonable doubt. [¶] Now, the defense put up innocence and guilt. And you'll see a jury instruction that tests reasonable explanations. If there are two reasonable explanations, and you all concur that they both could have happened, then you must find the explanation in favor of the defendant, and you must acquit. [¶] But I want to point this out to you: By acquitting this defendant of these charges and accepting his explanation that at 11:04, he was in his motel room on a laptop logging into MySpace playing poker that you acquit him of these charges, then you are necessarily accepting the defendant's version of events. [¶] You are finding that that is, in fact, what he was doing."(Italics added.) Following appellant's objection, the prosecutor continued: "You have two versions of the events. You have the defendant's, which I've already gone over for you. It's not credible."
Appellant contends that the above-emphasized language told the jury that in order to acquit appellant, they had to accept his version of events, and that this shifted the burden of proof to appellant. We do not agree. The prosecutor's remarks, considered in context, do not tell the jury that it could acquit appellant if they believe his alibi and do not shift the burden of proof to appellant.
In his closing argument, the prosecutor argued that appellant was not credible, and that someone else at appellant's motel could have logged into appellant's MySpace account for him, or possibly that appellant himself could have logged in from another location. The prosecutor then reminded the jury that in order to convict appellant, "you must find beyond a reasonable doubt that [appellant] committed these five, what are called, elements of a robbery. And I want to go through them and submit to you that all five elements have been proven." The prosecutor discussed the evidence presented in the case in chief. At the conclusion of the argument, the prosecutor stated, "I submit to you that it's been proven beyond a reasonable doubt" that appellant robbed the victim in this case. Thus, the prosecutor twice clearly told the jury that the People had the burden of proving appellant's guilt.
In responding to the prosecutor's argument about the log in, appellant's counsel directed the jury's attention to CALJIC No. 2.01. That instruction provides that if there are two reasonable interpretations of circumstantial evidence, and one points to the defendant's innocence and the other to guilt, the jury should adopt the one that pointed to innocence. Appellant's counsel argued that even if the prosecutor's explanation for the log in was reasonable, it was equally reasonable to believe that it was appellant who had logged in. In such a situation, appellant's counsel argued, CALJIC No. 2.01 required the jury to accept the interpretation that pointed toward appellant's innocence.
In the rebuttal argument quoted above, the prosecutor's first comments were clearly made in response to appellant's argument involving CALJIC No. 2.01. In the second, italicized part of the argument, the prosecutor is arguing that for CALJIC No. 2.01 to apply and require an acquittal, the jury would have to find that appellant's explanation of the log in was reasonable. This is a correct statement of the law. The prosecutor's argument cannot reasonably be understood as telling the jury that they could only acquit if appellant had proven his alibi.
It is not clear that CALJIC No. 2.01 applied to the log in issue. The prosecutor's description of how the log in could have occurred was based on inferences from circumstantial evidence. Appellant's description of how the log in occurred was based on direct evidence, that is, his own testimony that he logged into the account. The prosecutor's rebuttal argument reflects this awkwardness when the prosecutor argues that appellant's explanation is not reasonable because appellant's testimony is not credible.
Since the prosecutor's argument did not shift the burden of proof to appellant, there was no violation of appellant's constitutional rights.
3. Trial court error re: shifting burden of proof
Appellant contends that the trial court erred in overruling his objection to the arguments by the prosecutor quoted in section 2, supra. He further contends that the trial court had a duty to instruct the jury on the correct law concerning the burden of proof. As we explain, supra, the prosecutor's argument cannot reasonably be understood as shifting the burden of proof to appellant. The trial court did not err in overruling appellant's objection. The court had no duty to re-instruct the jury on the burden of proof.
4. Section 654
Appellant contends that his sentence for assault should have been stayed pursuant to section 654. We agree.
Section 654 is applicable where there is a single act or an indivisible course of conduct which violates more than one statute. The divisibility of the conduct depends on the intent and objective of the actor. If all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. (People v. Bauer (1969) 1 Cal.3d 368, 376; Neal v. State of California (1960) 55 Cal.2d 11, 19.)
"'The question whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.' [Citation.] The court's findings may be either express or implied from the court's ruling. [Citation.] In the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. [Citations.]" (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
Here, there was no reference to section 654 during sentencing, by the trial court or the parties. Thus, there is only an implicit determination that appellant had separate intents or objectives in committing the robbery and the assault. We see no evidence to support such a determination.
When an assault is the means of perpetrating a robbery, a defendant may only be sentenced for one of the offenses, usually the robbery. (See, e.g., People v. Ridley (1965) 63 Cal.2d 671, 678; People v. Logan (1953) 41 Cal.2d 279, 290; People v. Gilbert (1963) 214 Cal.App.2d 566, 568; People v. Aldridge (1961) 197 Cal.App.2d 555, 559.)
Respondent contends that in this case there was a second assault after the robbery itself was committed, and so the above-cited cases are inapplicable. Respondent describes the second assault as the victim being hit in the head with a hard object which he believed to be a handgun.
Respondent does not cite any cases which involve this or a similar fact pattern and which hold that section 654 permits the defendant to be punished for the robbery and a subsequent assault or similar crime.
The victim's description of events shows that the assault was part of the robbery. The victim testified: "And when I was thrown, they hit me or gave me a blow on the head with the pistol." The prosecutor asked: "Mr. Ortega, what happened after you were hit on top of the head?" The victim replied: "Well, they pulled out everything off me. They took my iPod and they left running." The clearest meaning of this testimony is that the robbers took property from the victim after the blow to the head (or attempted to find property to take).
The victim had earlier testified that the robbers pulled an iPhone out of the victim's pocket before the robbers kicked him. The blow to the head came after the kicking. Here, he refers to an iPod. It is clear that he only had one device. It is less clear when that device was actually taken. The victim had a wallet with him at the time of the robbery. It is not clear whether it was taken or not.
The victim earlier testified that he had thrown an elbow at the robbers when they first approached him and that one of the robbers pulled out a gun in apparent response. The non-armed robber then kicked him, then the blow to the head occurred. Thus, another possible meaning of the testimony is that the robbers hit the victim to subdue him so that they could make their getaway. Robbery is not complete until the robbers reach a place of safety.
The one-year sentence for appellant's assault conviction is ordered stayed pursuant to section 654. Appellant's total sentence is now five years. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P. J., KRIEGLER, J.