Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD264196) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dwayne Conyers was charged by information with robbery (Pen. Code, § 211; count 1); burglary (§ 459; count 2); identity theft (§ 530, subd. (a); count 3); and shoplifting (§ 459.5; count 4). The information further alleged Conyers had five prior prison terms (§ 667.5); two prior serious felony convictions (§ 667, subd. (a)(1)); and two prior strike convictions (§§ 667, subds. (b)(i) & 1170.12).
All further statutory references are to the Penal Code.
A jury found Conyers guilty on all counts. Conyers admitted the prior conviction allegations were all true. The court sentenced Conyers to a term of 26 years eight months.
On appeal, Conyers contends that the court abused its discretion and, thus, erred when it joined the burglary, shoplifting and identity theft charges stemming from an incident on October 22, 2015, on the one hand, with the robbery charge stemming from an incident two days later, on the other hand; that the court prejudicially erred in allowing the prosecution's expert to testify concerning the robbery victim's developmental disabilities; that the court erred when it refused to grant a mistrial motion after a prosecution witness inadvertently mentioned Conyers was on probation when he committed the instant offenses; that these errors were cumulative and denied him due process; and that the court erred in imposing on him a $10,000 restitution fine and a matching parole revocation fine.
As we explain, we disagree with these contentions and, thus, affirm the judgment of conviction.
We view the evidence in the light most favorable to the judgment of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to Conyers's claims of alleged error are discussed post, in connection with those issues.
A. October 22, 2015 Charges (Case No. SCD264196)
San Diego Police Officer Ronald Hamilton testified that he was on patrol around 1:00 a.m. on October 22, 2015 when he responded to a call at the North Park recreation center located on Idaho Street after a burglary alarm sounded. On investigation, Officer Hamilton and other officers found a metal grate covering a window had been pried up and bent away from the building; that the window screen was laying on the lawn; and that there were several items on the ground below the window, including a "small wrench." Using a canine unit, officers searched the recreation center but found it empty.
About 3:00 a.m. that same morning, Officer Hamilton received a call from dispatch to return to the recreation center. Officer Hamilton learned that Ken Davidson, a City of San Diego maintenance worker who initially opened the recreation center for the officers, had just contacted two individuals who claimed to be "looking for something" underneath the same window. Davidson reported the two individuals left on bicycles. Based on a description provided by Davidson, officers, including Officer Hamilton, contacted two males on bicycles near the recreation center.
Officer Hamilton testified one of the males was later identified as Conyers, the other as Jakaya Bryan. He further testified that Davidson also identified Conyers as one of the males Davidson had contacted at the recreation center, after police had left. Because officers were then unable to connect the two men to the break-in at the recreation center, they let them go after taking their pictures.
Davidson testified that he was on call when the alarm sounded at the recreation center; that he went to the center and let officers inside about 2:00 a.m.; that he found a security screen covering one of the windows had been pried away from the building; and that, after police secured the center and left, he repaired the security screen by reattaching it to the wall of the building.
As Davidson was walking to his car, two males on bicycles came "flying down the sidewalk." Davidson saw the two males stop near the building, and one of the males went to the window that Davidson had just repaired. Finding this behavior suspicious, Davidson approached the man and asked, "Can I help you?" In response, the man told Davidson, "No, I'm just looking for something." Concerned, Davidson called 911 and provided a description of the two males who fled on bicycles. As Davidson drove away, he saw police had contacted the two males he had just seen flee the center.
About 8:00 a.m. later that same morning, Michele C., a city worker, arrived at the recreation center she managed. Michele was unaware of the earlier police activity at the center. Although Michele had locked her office door the night before, and she alone had the key, she found her door unlocked when she arrived. On further inspection, Michele noticed items on her desk—including her computer and monitor—had been "pushed aside." Michele also noticed there was a hole in the wall just below her window. Michele found a candy wrapper on the floor of her office and one of her window screens leaning against an outside door of the recreation center. Michele contacted police.
Later that same day, Michele opened an email from her bank concerning "possible fraudulent activity" with respect to a credit card she kept in her office. Michele then discovered that credit card was missing. She also discovered that police had been dispatched to the recreation center earlier that morning. After talking to the bank, Michele found her credit card had been used to make purchases at a nearby convenience store. Michele passed this information on to police.
Codefendant Jakaya Bryan, who pleaded guilty to burglary without a promise of leniency, was called as a witness by the prosecution. Bryan testified that he was with Conyers when police stopped them about 3:00 a.m. on October 22; that they met by happenstance near the recreation center about 10:00 p.m. the night before the break-in; that Bryan met Conyers for the first time just a few days before October 22; that Bryan admitted he was "pretty intoxicated" from alcohol when he and Conyers rode bicycles to the recreation center; that, based on their conversations, both men agreed to break into the recreation center; that they went to the recreation center about 11:00 or 11:30 p.m.; and that Bryan climbed through a window at the center, after he used a wrench to unscrew the bolts holding a security screen and after Conyers held the grate open for him.
Bryan testified that, once inside, he found himself in an office with a desk and computer equipment. He next went to the front door and let Conyers inside. When asked if an alarm sounded, Bryan testified he heard none. Together they went back to the same office, and Bryan took a credit card off the desk. Bryan admitted in testimony that he was looking for items to "make money off of" and that Conyers told him he was looking for checks.
Bryan testified that, before he and Conyers went to the convenience store, they first went to a gas station and that, at the gas station, Conyers suggested they offer to pay for customers' gasoline using the stolen credit card in return for cash. Having no success, they rode their bicycles to a drug store and, according to Bryan, attempted to purchase "personal" items for "hygiene" with the stolen credit card. However, when Conyers tried to use the card, it was declined.
Next, they went to the convenience store. Once inside, Bryan took the stolen credit card from Conyers. Bryan used the card to buy cigarettes and food. Bryan identified himself and Conyers in photographs taken from the store surveillance video. One of the photographs also showed Conyers handing what Bryan identified was the credit card stolen from the recreation center. Bryan testified that he threw the credit card in the bushes after they left the store. They later both returned on bicycles to the recreation center because Bryan had left his backpack in the bushes.
Although contacted by police officers shortly thereafter, Bryan testified the police let him and Conyers go after taking each of their pictures because they did not then have enough evidence to arrest them. A few weeks later, police arrested Bryan for the break-in at the recreation center. During a police interview, Bryan initially denied being involved in the break-in. However, he later confessed after being shown pictures taken from the convenience store video.
B. October 24, 2015 Charges (Case No. SCD264510)
Witness Dan A., who, as discussed post, suffers from a developmental disability, testified he went to a local bar on the evening of October 24. While at the bar, Dan played pool with a friend, Debbie H. As they played pool, a man later identified as Conyers came over and said to Dan, " 'I want to talk to you' " outside. The man claimed to be a social worker.
Once outside, the man put his arm around Dan and asked Dan if he wanted to buy some "crystal meth." Dan told the man he did not use illegal drugs. Frightened, Dan also told the man he already had his own social worker and refused the man's invitation to go and "get some girls." Dan testified he just wanted to leave the bar and go to his mother's house, which was located nearby. Dan estimated he left the bar about 8:00 p.m.
As he was walking to his mother's house, Dan was "jumped" by the man. Dan was certain the man who jumped him was the same man who had been interacting with him at the bar. The man grabbed Dan's wallet, which was attached by a chain to Dan's "pant loop." Inside the wallet was Dan's "green card," his Social Security card, all of his ID's, his bus pass and $40 in cash.
Dan testified that the man grabbed him by the shoulder from behind and struck him in the face, causing Dan's glasses to fall to the ground. After taking Dan's wallet, as the man ran away he told Dan he would "kill" him if Dan called the police.
Dan immediately called 911, which call was played for the jury. The jury also saw video surveillance of the man approaching the bar and the interaction between the man and Dan at the bar, including instances when the man took Dan's cigarette and when the man refused to allow Dan to reenter the bar when they were both outside. At trial, Dan identified the man on the video as his attacker, as both the man and his attacker wore a white T-shirt and white pants. The video also showed the man running in the same direction as Dan, after Dan left the bar to go to his mother's house. Later that evening, police notified Dan they had a suspect in the robbery. Police picked up Dan and took him to where the suspect was being detained. Dan identified the suspect as his attacker at a curbside lineup.
Debbie H. testified she was at the bar on October 24 when a man she later identified as Conyers came up to her as she was talking to Dan. Debbie stated that she had known Dan for about a year and that they were friends. As she talked with Dan, the man interrupted them and began making comments of a "sexual" nature to her that made her uncomfortable. While at the bar, Debbie told the man several times that she wanted to be left alone. The man, however, continued to engage her, which made her "nervous."
After about 20 minutes, Debbie got up and left the bar. According to Debbie, the man followed her outside and asked her if she wanted to use methamphetamine and get a hotel room. Debbie declined his invitation and walked home.
San Diego Police Officer Arturo Morales testified that he was on duty about 8:35 p.m. on October 24 when he was dispatched to an area near the bar in connection with a robbery. Before contacting Dan, Officer Morales activated his body camera. Although shaken and upset, on contact Dan provided Officer Morales with a description of the man who robbed him. Officer Morales saw Dan had a cut lip and an abrasion on his elbow. Dan told Officer Morales that, as the man ran away with his wallet, the man said he would "kill" Dan if he called police.
Officer Morales initially believed Dan was drunk, as Dan could not provide the address where he lived and had trouble putting sentences together. However, Dan was able to provide his mother's telephone number. Officer Morales called Dan's mother and then drove Dan to her house. Officer Morales spoke to Dan's mother and realized Dan had a disability that made it difficult for him to put sentences together. After about 10 minutes, Officer Morales drove Dan to his own home and continued on patrol.
Around 10:30 p.m. that same night, Officer Morales received a call regarding a disturbance at a bar located about 10 blocks away from the bar where Dan had been earlier that night. The man involved in that disturbance was later identified as Conyers. As that man was being placed in a patrol car, Officer Morales noticed the man was wearing white "cargo shorts," not just "boxers," underneath his blue jeans, and a grey polo shirt over a white T-shirt with black lettering on it. Officer Morales testified it was a warm evening that night, and it struck him as "odd" that the man would be wearing two sets of clothes.
Because Officer Morales had investigated the robbery of Dan earlier that evening and because the suspect in the disturbance matched the same description provided by Dan (i.e., an African-American male, bald, about six-feet tall wearing white shorts and a white T-shirt), Officer Morales concluded the suspect then under arrest was also responsible for the robbery of Dan.
Officer Morales testified he called Dan at home and asked if he would be willing to look at the suspect. Officer Morales's phone call with Dan was recorded by Officer Morales's body camera and was played for the jury. Officer Morales next drove to Dan's home, admonished Dan with a curbside lineup form that provided it was just as important to free an innocent person as to identify a guilty person and then drove Dan to the location where the suspect was being detained.
An exact copy of the curbside lineup form used by Officer Morales to admonish Dan was admitted into evidence without objection.
After parking about 15 yards away from the suspect, other officers put a spotlight on the man. Dan immediately identified the man as his attacker. When asked by Officer Morales if he was 100 percent sure the man was his attacker, Dan responded, "That's him. That's him. Only he's wearing a different shirt and jeans."
San Diego Police Detective Andrew Tafoya testified he interviewed Dan on October 26, or two days after the attack. Dan confirmed many of the details concerning the incident, including how the man approached him at the bar, identified himself as a social worker and tried to sell him methamphetamine. Toward the end of the interview, Detective Tafoya showed Dan a photograph of the suspect. According to Detective Tafoya, Dan became very upset and starting hitting his own head with his hands.
Detective Tafoya subsequently obtained the video surveillance from the bar cameras, portions of which were played for the jury. In his review of the video, Detective Tafoya saw Dan and the man interacting, including while outside the bar, when the man more than once blocked Dan's attempts to reenter the bar. The video showed the man wearing a white T-shirt, white shorts and tan house slippers. Later, the video showed Dan leaving the bar and crossing the street, with the man following a few minutes later and taking the same exact path as Dan. The video also showed the man initially walking, then running, as he followed the path taken by Dan.
Detective Tafoya testified he subsequently viewed the clothing worn by the man on the night of his arrest that had been impounded by police. When Detective Tafoya compared those clothes and shoes to those worn by the man in the video from the bar, Detective Tafoya found they matched.
Conyers contends the charges filed in case No. SCD264196 stemming from the commercial burglary of the recreation center on October 22, 2015 should not have been consolidated with the charges filed in case No. SCD264510 stemming from the robbery of Dan two days later because the two cases were allegedly not of the same class of crimes within the meaning of section 954 and because the latter case was allegedly much stronger than the former.
A. Brief Additional Background
Before trial, the prosecution moved to consolidate the two cases. In support of its motion, the prosecution argued that the two cases were not filed in the same criminal complaint because the investigation in connection with the commercial burglary was still ongoing when the complaint was filed in connection with the robbery of Dan. The prosecution further argued that consolidation under section 954 was warranted because the offenses from both cases involved theft and, thus, were of the same class; that Conyers could not establish a clear showing of prejudice by the joinder because no weak charges were being joined with either other weak charges or with strong charges; that, instead, all charges were sufficiently strong, inasmuch as there was eyewitness testimony and surveillance video in both cases implicating Conyers; and that consolidation therefore served the interests of efficiency and economy. Conyers opposed the motion.
The court granted the prosecution's motion to join the two cases. In so doing, the court found the two cases were of the same class of crimes, as both cases involved theft-related offenses, although it noted the robbery case involving Dan was somewhat more violent than the case involving commercial burglary and use of a stolen credit card. The court also found that both cases were relatively strong; that the robbery was somewhat more inflammatory than the commercial burglary of the recreation center; but that the robbery case would not "spill over" and "effect" the burglary case to the substantial prejudice of Conyers.
B. Guiding Principles
As relevant here, "[s]ection 954 provides that an accusatory pleading may 'charge two . . . or more different offenses of the same class of crimes or offenses . . . .' " (People v. Mendoza (2000) 24 Cal.4th 130, 160, italics omitted (Mendoza).) Offenses are of the same class when they possess common characteristics or attributes. (People v. Kraft (2000) 23 Cal.4th 978, 1030.)
"The law prefers consolidation of charges." (People v. Ochoa (2001) 26 Cal.4th 398, 423.) Consolidation typically avoids the increased expenditure of funds and judicial resources that may result if the charges are tried in two or more separate trials. (People v. Soper (2009) 45 Cal.4th 759, 772.) Where the statutory requirements for joinder are met under section 954, "a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion" in granting a motion for consolidation. (Mendoza, supra, 24 Cal.4th at p. 160.)
In a noncapital case such as here, the factors to be considered in determining whether a clear showing of prejudice has been made include whether the evidence is cross-admissible in separate trials; whether some of the charges are likely to unusually inflame the jury against the defendant; and whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges. (Mendoza, supra, 24 Cal.4th at pp. 160-161.) In an appeal from consolidation, we review a trial court's decision to join separate counts for abuse of discretion based on the record when the motion was decided. (See People v. Thomas (2012) 53 Cal.4th 771, 798; see also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 281.)
1. Consolidation Is Proper
In case No. SCD264510, it was alleged that Conyers and his accomplice on October 22, 2015 committed a commercial burglary when they broke into the recreation center in the middle of the night "with the intent to commit theft." It was further alleged that Conyers and his accomplice that same night unlawfully obtained "personal identifying information" of another for an unlawful purpose, "to wit: to obtain goods" and then unlawfully entered a commercial establishment "with the intent to commit larceny." With respect to the October 22 charges, Conyers's accomplice, Bryan, testified that he was looking for money or items of value, and that Conyers was looking for checks, when they broke into the recreation center. Similarly, in case No. SCD264196, it was alleged that Conyers took property belonging to another, by means of "force or fear."
We conclude the trial court properly exercised its discretion when it found the offenses in case Nos. SCD264510 and SCD264196 possessed common characteristics or attributes (see People v. Kraft, supra, 23 Cal.4th at p. 1030), inasmuch as both cases involved the intent to obtain illegally the property of others. (See Mendoza, supra, 24 Cal.4th at p. 160 [robberies and commercial burglaries all involved the intent to illegally obtain property]; see also People v. Lucky (1988) 45 Cal.3d 259, 276 [robbery and murder charges are of the same class because they share common characteristics as assaultive crimes against the person]; People v. Cuccia (2002) 97 Cal.App.4th 785, 796 ["theft ' "includes larceny, embezzlement, larceny by trick, and theft by false pretenses" ' " (italics added)].) Thus, we are unpersuaded by Conyers's contention that the trial court abused its discretion when it consolidated the two cases.
2. Conyers Did Not Make a "Clear Showing" of Prejudice
Comparing the two sets of charges, we conclude Conyers failed to make a clear showing of prejudice that any of the consolidated charges would be likely to inflame the jury against him. As the trial court recognized, the robbery charge against Dan stemming from the October 24 incident outside the bar was somewhat more inflammatory than the commercial burglary two days earlier. However, as the court also found, Dan did not suffer any long-lasting injuries; the robbery involved the theft of a wallet that included a relatively small sum of money (i.e., $40); and no weapon was used in connection with the robbery. We thus conclude Conyers has not made a clear showing that the evidence in support of the robbery charge involving Dan would have altered the outcome of the other theft-related charges and/or the commercial burglary charge, or vice versa.
We further conclude Conyers failed to establish a clear showing of prejudice based on the joining of a weak case with another weak case or with a much stronger case. (See Mendoza, supra, 24 Cal.4th at pp. 160-161; see also People v. Balderas (1985) 41 Cal.3d 144, 173-174.)
"The core prejudice concern arising in connection with this issue is that jurors may aggregate evidence and convict on weak charges that might not merit conviction in separate trials. (Williams [v. Superior Court (1984)] 36 Cal.3d [441,] 453.) This concern is especially pronounced when evidence of a lesser but inflammatory incident might be used to bolster a weak prosecution case as to another incident. ([People v.] Capistrano [(2014)] 59 Cal.4th [830,] 850.) But even where evidence from one incident could be considered 'inflammatory' as the term is understood in our case law (see id. at pp. 850-851), we will find no abuse of discretion if the evidence of guilt for each of the joined incidents is sufficiently compelling (see, e.g., [People v.] McKinnon [(2011)] 52 Cal.4th [610,] 631 ['This was not a matter in which a weak case was joined with a strong case, or with another weak case, thereby "causing a spillover effect that might have unfairly altered the outcome of the trial." [Citation.] Strong evidence supported both cases'])." (People v. Simon (2016) 1 Cal.5th 98, 127.)
Here, the record shows there was strong evidence supporting both cases. Regarding the robbery of Dan, the evidence shows Dan identified Conyers as the man who robbed him at a curbside lineup on the same night of the robbery. The record further shows that Dan then identified the man as African-American, bald, about six feet tall, who wore a white T-shirt with black writing, white shorts and brown Moccasin-style shoes; that surveillance video obtained after Dan's identification and description of the suspect showed Dan and a similarly identified man together in the bar on the evening of October 24; that this video further showed Dan and the man outside the bar and the man blocking Dan's entry back into the bar, as Dan reported; that, after Dan left the bar and began walking to his mother's home located nearby, the video showed the man leaving the bar a few minutes later, taking the same path as Dan and, at some point, running in Dan's direction; that, later that same evening, police were dispatched to another bar about 10 blocks away concerning a disturbance; that, at this other bar, the police found the man causing the disturbance wore a white T-shirt with black lettering and white shorts under a polo shirt and blue jeans, despite the fact it was a warm evening; and that the description of the man causing the disturbance at the other bar also matched the physical description of the man provided by Dan. Such evidence supports the finding that the robbery case against Conyers was strong.
Regarding the charges of commercial burglary, theft of a credit card and the use of that credit card in a commercial establishment, the evidence is likewise strong. This evidence includes the testimony of accomplice Bryan, who, as summarized ante, described meeting up with Conyers at a park near the recreation center a few hours before they decided to break into the center to commit theft; details of how together they broke into the center; their decision to return to the center after using the stolen credit card because Bryan left his backpack in the bushes; and Bryan's confession—after denying his involvement—to being involved in the break-in, after he was presented with photographs taken from video surveillance cameras from the convenience store showing him and Conyers using Michele's stolen credit card to buy cigarettes, food and other items.
The evidence further includes Davidson's statements identifying Conyers and Bryan as the two males who returned—about an hour after police left the scene—to the same window used by the suspects initially to gain entry into the recreation center; surveillance video from the convenience store showing Bryan and Conyers using Michele's stolen credit card; and pictures taken of the two men by officers when the two were detained about 3:00 a.m., a few blocks from the recreation center. Such evidence supports the finding that the charges stemming from the October 22 commercial burglary were equally as strong as the October 24 robbery charge.
Conyers next contends the court erred when it allowed the People's medical expert to testify concerning Dan's developmental disabilities, which Conyers contends usurped the role of the jury.
A. Additional Background
The record shows pretrial the prosecution sought to admit the expert testimony of a neurologist, not to bolster Dan's credibility, but rather, according to the prosecutor, to "explain where [Dan's] deficiencies are in this disability so that [the jury] understand[s] where he's having trouble understanding -- just taking his answers in context of what he's capable of." The record further shows the defense also moved pretrial to exclude such testimony. In so doing, the defense acknowledged the doctor was "qualified as a neurologist to testify if somebody has a cognitive disability."
At the hearing on the competing motions, the court noted that the expert could not testify that Dan " 'will provide truthful testimony' or something along those lines, again, I think that's invading the province of the jury. [¶] If the expert is going to say: I do think [Dan] can remember incidents that happened in his life and he is capable of describing historical incidents and talking about how, if you don't ask him simple questions, he may get confused -- all of those things I think are fine. [¶] So it's just going that one step further about whether he's going to be credible. That's obviously a jury question."
A little later in the hearing, the record shows the court reiterated that it was "very fair" for the prosecution to ask the expert the following question: "Could a person with the same type of developmental disability as [Dan] remember and describe what happened to him? [¶] Something like that, you know, I think that's very legitimate." When the court asked defense counsel if he wanted to be "heard on that" point, defense counsel said, "No."
During trial, the expert testified that he met with Dan for about an hour; that the purpose of the meeting was to evaluate how Dan used language, responded to the use of language and approached specific cognitive tasks; and that, before meeting Dan, the expert reviewed a police report, information from Dan's mother and the prosecution, and a transcript of the preliminary hearing. Over objection, the expert next stated the purpose of his face-to-face meeting with Dan was to "try to give . . . context about his ability to offer accurate testimony or to describe events he'd experienced." (Italics added.)
The expert testified that, during their face-to-face meeting, Dan self-reported that he had "substantial cognitive problems"; that, when he entered school, he was identified as having learning and cognitive disabilities; and that he had spent "all" his of education in special education programs. Dan further reported—as he also testified at trial—that he had an abnormal delivery because the umbilical cord had been wrapped around his neck.
The expert testified, based on the information provided and his face-to-face interview, that Dan had a "developmental disability"; that Dan was "mildly mentally retarded"; that Dan showed "cognitive deficits across several spheres," including "disorganization of language," which the expert referred to as "aphasia"; and that, as a result, if Dan was provided "complicated phrases [by] either increasing the complexity of the grammar or the type of vocabulary," Dan would have "difficulty" following it.
The following colloquy then took place concerning the specifics of some of Dan's developmental disabilities:
"Q. [The prosecutor] In the preliminary hearing transcript where he had testified, and his answers were written down, was the aphasia apparent to you?
"A. [The expert] I think I would describe it, the questions where it seemed like he got confused during that transcript matched up with the idea that they were types of questions that would provoke an aphasic patient to have difficulty responding accurately.
"Q. And would that be questions that are, I guess, phrased in a way that are sort of challenging or multi-step?
"A. Yeah. Basically, the way that attorneys tend to talk to people. So, yeah, multi-step, compound, phrased with complex grammar, unnecessary preliminary statements. You know, 'In your review of these documents,' or, 'In your recollection of the evening in question, what happened?' And by the time you get to the 'what happened,' he's gotten so distracted by all those words that came before that it's hard to follow." (Italics added.)
Next, the prosecutor asked the expert about whether Dan showed signs consistent with "executive dysfunction." The expert defined this term to mean how an individual handles "executive tasks . . . beyond the simplest cognitive things." As an example, the expert noted that, during their face-to-face meeting, he asked Dan to list all the animals Dan could think of in a minute. According to the expert, a person without this difficulty would develop a "strategy" to answer this question, perhaps thinking of animals in the zoo, or animals starting with the letter "A," then the letter "B" and so forth. However, the expert found Dan had trouble organizing a "task that require[d] some sort of free-form organization" after a "few iterations." On questioning, the expert further noted Dan exhibited executive dysfunction during his preliminary hearing testimony.
When asked whether Dan's disability had an effect on his memory, the expert testified that Dan's memory was "far superior relative to some of his other tasks" and that his long-term memory, which the expert defined as recalling an event that happened more than an hour ago, "seemed quite good." The expert's "overall assessment" of Dan was that, "despite his impairment, he was capable of offering accurate and credible reports to prior experiences." (Italics added.)
On cross-examination, the record shows the defense asked the expert specific questions from the preliminary hearing transcript that appeared to evoke an "aphasic response" from Dan. Such questions involved the color of the shirt Conyers was wearing at the preliminary hearing and whether he wanted Debbie to leave the bar with him on the night of the robbery. The expert agreed with the defense that Dan had a "much higher likelihood of producing accurate answers" if Dan was asked "one-fact questions" in the active voice.
B. Guiding Principles and Analysis
"A witness may testify as an expert, in the form of an opinion, on 'a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).)" (People v. Jackson (2013) 221 Cal.App.4th 1222, 1237.) Expert testimony "will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that men [and women] of ordinary education could reach a conclusion as intelligently as the witness' (People v. Cole (1956) 47 Cal.2d 99, 103)." (People v. McDonald (1984) 37 Cal.3d 351, 367, overruled on another ground as stated in People v. Mendoza (2000) 23 Cal.4th 896, 923-925.)
Moreover, "[c]redibility questions are generally not the subject of expert testimony . . . ." (People v. Smith (2003) 30 Cal.4th 581, 628.) Admission of expert testimony is reviewed for abuse of discretion. (Id. at p. 627; People v. Gonzalez (2006) 38 Cal.4th 932, 944.)
We need not resolve the issue of whether the court erred when it ruled the expert's testimony was admissible allegedly not to bolster Dan's credibility, which would be impermissible (see People v. Smith, supra, 30 Cal.4th at pp. 626-628), but rather to "explain where [Dan's] deficiencies are in this disability so that [the jury] understand[s] where he's having trouble," which ostensibly would be permissible (assuming such a "line" could be, or was, drawn in this case). Instead, assuming—without deciding—that the court abused its discretion in failing to exclude the expert's testimony, we nonetheless conclude on this record that the error was harmless.
Although we do not resolve this issue, the record suggests no such line was drawn in this case, inasmuch as it shows the expert testified not only that Dan was capable of responding to (simple and direct) questions, but also of responding accurately to such questions, as summarized ante. Candidly, we question whether it was necessary to call an expert under the circumstances of this case.
It is well settled that the erroneous admission of evidence is tested for prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Richardson (2008) 43 Cal.4th 959, 1001; compare, People v. Albarran (2007) 149 Cal.App.4th 214, 229-232 [noting admission of gang evidence that was particularly inflammatory raised due process concerns requiring review under Chapman v. California (1967) 386 U.S. 18 and, as such, further noting "[t]his case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair" (italics added)].)
The question therefore before us is whether there is a reasonable probability Conyers would have obtained a more favorable verdict had the error not occurred. (See Watson, supra, 46 Cal.2d at p. 836.) "In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted; see People v. Guiton (1993) 4 Cal.4th 1116, 1130 [noting when "determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict"].)
Here, we conclude there was substantial evidence independently corroborating Dan's identification of Conyers as his attacker, including: video from the bar's surveillance cameras showing Conyers not only continually interacting with Dan (and Debbie) on the night of the robbery but also blocking Dan's attempts to reenter the bar when he and Dan were outside; the same video feed showing Dan leaving the bar about 8:00 p.m. and Conyers leaving a few minutes later, first walking, then running, in the same direction as Dan; and the disturbance later that same night in a different bar located about 10 blocks away from the robbery scene, where the suspect in the disturbance (i) matched the physical description of Dan's attacker, which Dan had provided to police shortly after the robbery and which was later corroborated by the surveillance video, and (ii) wore (under a polo shirt and blue jeans) the same color and type of clothing, including brown Moccasin-style shoes, which Dan also had described to police.
What's more, the record shows that, even without the expert testimony, Dan himself admitted not only to being disabled but also the reason for his disability; that, based on our own independent review of the record, Dan was able to testify cogently and withstand the rigors of cross-examination despite his cognitive impairment; that the jury was instructed with CALCRIM NO. 226 informing the jury that it "alone" was to "judge the credibility or believability of the witnesses"; that the jury was instructed with CALCRIM No. 331 titled "Testimony of Person with Developmental, Cognitive, or Mental Disability" to assist it in evaluating Dan's testimony in light of his disability; and that the jury also was instructed with CALCRIM No. 332 informing the jury that it was not required to accept any expert's opinion as "true or correct."
The jury was instructed in part as follows with CALCRIM No. 226: "You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. [¶] You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] . . . [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] . . . [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently."
The jury also was instructed as follows with CALCRIM No. 331: "In evaluating the testimony of a person with a developmental disability, or a cognitive, mental, or communication impairment, consider all of the factors surrounding that person's testimony, including his or her level of cognitive development. [¶] Even though a person with a developmental disability or a cognitive, mental, or communication impairment, may perform differently as a witness because of his or her level of cognitive development, that does not mean he or she is any more or less credible than another witness. [¶] You should not discount or distrust the testimony of a person with a developmental disability, or cognitive, mental, or communication impairment, solely because he or she has such a disability or impairment."
Finally, the jury was instructed as follows with CALCRIM No. 332: "A witness was allowed to testify as an expert and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
Based on these instructions, which we presume the jury understood and followed (see People v. Morales (2001) 25 Cal.4th 34, 47), and the record in this case, including the evidence summarized ante, we conclude it is not reasonably probable a verdict more favorable to Conyers would have been reached absent the expert's testimony concerning Dan's cognitive disabilities. (See People v. Richardson, supra, 43 Cal.4th at p. 1001; see also People v. Cummings (1993) 4 Cal.4th 1233, 1295 [concluding erroneous admission of evidence was harmless in light of overwhelming evidence of guilt]; People v. Covarrubias (2011) 202 Cal.App.4th 1, 22-23 [concluding even where erroneously admitted expert testimony was relatively lengthy and, thus, a significant part of the prosecution's case, admission of the evidence was harmless under Watson because there was strong evidence against the defendant].)
Conyers next contends the court erred when it refused to grant his mistrial motion after Officer Morales testified the male suspect responsible for the disturbance at the second bar was going to be arrested for a "probation violation." Conyers poses the issue as one of prosecutorial misconduct based on the prosecutor's admission that she neglected to admonish the witness to avoid this subject matter before the officer took the stand.
A. Additional Background
The record shows the following colloquy took place between the prosecutor and Officer Morales:
"Q Okay. Did you respond to investigate the situation [at the second bar]?
"A Yes, I did, ma'am.
"Q All right. And once you got to the [second] [b]ar, were you the first one on the scene, or were there already officers there?
"A There were already other officers on the scene.
"Q And had those officers detained an individual?
"A Yes. Those officers detained a male.
"Q And was the male that was detained, was that pertaining to the disturbance at the [second] [b]ar?
"A Yes it was.
"[Defense counsel]: Objection: Hearsay and facts not in evidence.
"The Court: Overruled.
"The Witness: Yes, it was, ma'am.
"Q Okay. And pursuant to that call at the [second] [b]ar and information that officers learned in doing an investigation, was that individual going to be arrested?
"A Yes, he was going to be arrested, ma'am, for probation violation." (Italics added.)
The record shows the parties went to a sidebar conference immediately after this statement was made. During that conference, the court stated the witness should not have been talking about a probation violation, inasmuch as this was a "bifurcated trial." The court stated it would admonish the jury to disregard Officer Morales's answer. The defense then noted it was going to move for a mistrial at the next break. The record shows the court in fact instructed the jury to disregard Officer Morales's "last answer."
In support of the mistrial motion made outside the presence of the jury, the defense noted that the statement concerning Conyers being arrested for a probation violation—or "technically post-release community supervision"—rendered the trial "fundamentally unfair." The prosecution argued that all she was attempting to do in connection with this line of questioning was to establish Conyers was being arrested that night not because of the robbery of Dan but rather for a separate incident; that her question only required Officer Morales to answer "yes" or "no"; that she had not admonished the witness beforehand to avoid this subject matter because she did not believe it would "come up"; and that, in asking this question of Officer Morales, she "actually thought [Conyers] was being arrested for a disturbance caused at the . . . [b]ar, which [she also] didn't think was appropriate for the jury to know in this trial."
The court denied the mistrial motion. In so doing, the court noted that it was "shocking how often this comes out in trials" and that every officer testifying should be admonished not to mention a defendant's prior criminal record or "anything of that nature." The court, however, found the probation statement was not prejudicial because Officer Morales did not say why Conyers was on probation and gave no facts regarding Conyers's prior criminal case. The court also noted it had "immediately" admonished the jury to disregard the statement in its entirety. However, the court specifically instructed the prosecution to admonish Officer Morales, and any other officers set to testify, to avoid discussing Conyers's prior criminal record.
B. Guiding Principles and Analysis
The standards for review of the denial of a motion for mistrial are well established: "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Bolden (2002) 29 Cal.4th 515, 555.) " 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Wharton (1991) 53 Cal.3d 522, 565.) A witness's volunteered statements can, but do not per se, provide the basis for a finding of incurable prejudice. (Ibid., citing People v. Rhinehart (1973) 9 Cal.3d 139, 152 [witness's inadvertent answer, if error, was not sufficiently prejudicial to justify mistrial].)
Here, the record shows that Officer Morales made a fleeting reference to the fact Conyers was going to be arrested at the second bar for a probation violation; that the question was posed by the prosecution so that Officer Morales could simply answer "yes" or "no" without the need to disclose the reason for Conyers's arrest; that the court "immediately" instructed the jury to disregard Officer Morales's answer to the question; and that, in addition to the statement being fleeting and made only once, Officer Morales did not testify concerning any details of Conyers's criminal history.
On this record, we conclude that there was no prosecutorial misconduct as the "probation violation" remark was nonresponsive to the "yes" or "no" question posed by the prosecutor. (See People v. Young (2005) 34 Cal.4th 1149, 1188 [noting a prosecutor engages in misconduct by deliberately eliciting inadmissible testimony].) We further conclude the trial court was well within its discretion when it found Officer Morales's fleeting statement about arresting Conyers for a probation violation was not so prejudicial as to require a mistrial. (See People v. Williams (1981) 115 Cal.App.3d 446, 453 [concluding a witness's inadvertent reference to a conversation with the defendant's parole officer was not so prejudicial as to require a mistrial even when the court had previously decided such evidence was inadmissible].)
Because we have found only one instance of potential error that we have deemed harmless (i.e., the expert's testimony), we reject Conyers's contention that cumulative error requires reversal of his convictions. (People v. Bennett (2009) 45 Cal.4th 577, 618 [noting with the "exception of a single erroneous evidentiary ruling, which was harmless beyond a reasonable doubt, we have rejected all other claims of error; thus there is no cumulative error"].)
The version of section 1202.4, subdivision (b) applicable when Conyers committed the instant offenses (see People v. Saelee (1995) 35 Cal.App.4th 27, 30-31 [noting "[a] restitution fine qualifies as punishment for purposes of the prohibition against ex post facto laws"]) required the trial court to impose a restitution fine in every case unless it "finds compelling and extraordinary reasons for not doing so and states those reasons on the record." A defendant's inability to pay is not a compelling and extraordinary reason not to impose a restitution fine. (§ 1202.4, subd. (c).)
Since Conyers committed the offenses in October 2014, section 1202.4 has been amended three times. (See Stats. 2015, ch. 569, § 15, eff. Jan. 1, 2016; Stats. 2016, ch. 31, § 240, eff. June 27, 2016; and Stats. 2016, ch. 37, § 3, eff. Jan.1, 2017.) However, because the amendments do not affect our analysis, we will refer to the current statute in the body of the opinion. --------
In addition, a trial court has discretion to set the amount of the fine, but it should be "commensurate with the seriousness of the offense" and be between $300 and $10,000. (§ 1202.4, subd. (b)(1).) The restitution fine may be calculated by multiplying the number of years of imprisonment to which the defendant is sentenced by the amount of the minimum fine, multiplied by the number of felony counts of which the defendant is convicted. (Id., subd. (b)(2).) In setting the amount of the fine in excess of the minimum fine, a trial court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense, the circumstances of the commission of the offense, any economic gain derived by the defendant as a result of the crime, and the number of victims. (Id., subd. (d).) Significantly, a defendant bears the burden of proving his or her inability to pay. (Ibid.)
Here, the record shows at sentencing the court imposed the "fines and fees" as indicated on page 14 of Conyers's probation report, which included the $10,000 restitution fine pursuant to section 1202.4, subdivision (b) and a matching parole revocation fine (§ 1202.45) that was imposed but suspended. The record further shows the fines and fees were imposed without objection. (See People v. Gillard (1997) 57 Cal.App.4th 136, 165, fn. 18 [noting when a probation report recommends the imposition of a restitution fine in a particular amount and cites the statutory authority for the fine, a defendant who fails to object when the trial court imposes that fine forfeits the objection for appeal]; see also People v. Gibson (1994) 27 Cal.App.4th 1466, 1469.)
In any event, we conclude the imposition of a $10,000 restitution fine was not an act that was arbitrary, capricious, or patently absurd (see People v. Peoples (2016) 62 Cal.4th 718, 745), in light of Conyers's sentence of 26 years eight months in connection with the instant offenses, the fact he was subject under section 1202.4, subdivision (b)(1) to a $300 minimum fine and the fact he was convicted of three felony counts. (See § 1202.4, subd. (b)(2).) Our conclusion is further buttressed by Conyers's extensive criminal history, as summarized at length in his probation report.
Moreover, subdivision (d) of section 1202.4 makes clear that it is a defendant's burden to show his or her inability to pay, as we have noted. "This express statutory command makes sense only if the statute is construed to contain an implied rebuttable presumption, affecting the burden of proof, that a defendant has the ability to pay a restitution fine. . . . The statute thus impliedly presumes a defendant has the ability to pay and expressly places the burden on a defendant to prove lack of ability. Where, as here, a defendant adduces no evidence of inability to pay, the trial court should presume ability to pay, as the trial court correctly did here." (People v. Romero (1996) 43 Cal.App.4th 440, 448-449.) For this additional reason, we conclude the trial court did not abuse its discretion when it imposed the $10,000 restitution fine and the matching parole revocation fine.
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. HALLER, J.