Opinion
A148960
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. NAMON TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H58226A)
Namon Taylor appeals from a judgment of conviction and sentence imposed after a jury convicted him of perpetrating two robberies and possessing a firearm as a felon. He contends the court erred by (1) admitting evidence of an uncharged robbery to show he committed one of the charged robberies and (2) instructing the jury that his commission of the uncharged robbery could be established by a mere preponderance of the evidence. In his supplemental brief, he contends the case should be remanded for the trial court to reevaluate its imposition of a sentence enhancement under Penal Code section 12022.53. We will remand with respect to the enhancement and otherwise affirm.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Taylor with two counts of second degree robbery (Pen. Code, § 211) and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)). It further alleged that Taylor personally used a firearm in the commission of the robbery alleged in the second count (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and had nine prior felony convictions (§ 667.5, subd. (b)), two of which resulted in a prison term. The matter proceeded to a jury trial.
Unless otherwise indicated, all statutory references are to the Penal Code.
A. Evidence at Trial
In essence, the prosecutor presented evidence of three similar robberies to prove that Taylor committed two of them, one with a gun.
1. October 2015 Robbery of a San Leandro 7-Eleven (Counts 2 and 3)
At 10:50 p.m. on October 21, 2015, Venugopal Yara was robbed while working as a clerk at a 7-Eleven convenience store in San Leandro. The robber approached the register with a beverage, handed Yara a $5 bill, and demanded Yara give him the money in the cash register. Holding a gun, the robber took all the money from the register and left.
Surveillance video showed that the robber was wearing yellow or green gloves with black palms, a beanie with a snowflake pattern, a black hoodie with plastic tips on the drawstrings, and gray Nike shoes.
2. Uncharged November 2015 Robbery of a San Francisco Grocery Outlet
Travis Dawson, the owner-operator of a Grocery Outlet in San Francisco, testified that the Grocery Outlet was robbed while Christopher Weimer was working as a cashier around 8:12 p.m. on November 4, 2015. Surveillance footage showed a man wearing a beanie approach Weimer with a beverage, take approximately $300 from the cash register, and leave.
3. Taylor's November 2015 Robbery of a San Leandro Chevron (Count 1)
In November 2015, the San Francisco Police Department was investigating a series of robberies in which, like the 7-Eleven and Grocery Outlet robberies, the culprit entered a business on a Wednesday evening near closing time, approached the cashier as if to buy a small item, waited for the register to open, and then produced a firearm and took money from the register. Police obtained a search warrant for the telephone records of Sekou Carson, who had been arrested for two similar robberies. Carson's phone records revealed his connection to Lacarl Dow; Dow had been arrested with Taylor earlier in 2015, so San Francisco Police Sergeant Thomas Maguire obtained Taylor's mugshot.
Sergeant Maguire compared Taylor's mugshot to images of the suspect captured on surveillance footage of the San Francisco Grocery Outlet robbery on November 4, 2015. Based on similarities in height, skin tone, weight, and facial features, Maguire concluded that the suspect in the surveillance footage resembled Taylor.
Police obtained warrants to place tracking devices on Taylor's and Dow's vehicles. Tracking Taylor's vehicle on Wednesday, November 18, 2015, police saw Taylor and Dow "case" several gas stations and grocery stores. No robbery was committed, and surveillance ended when Taylor and Dow returned to Dow's residence.
Believing that Taylor and Dow were still planning a robbery, police tracked Taylor's vehicle again on November 19, 2015. They observed Taylor and Dow case several small stores before going to a Chevron gas station in San Leandro. Taylor parked around the corner from the station and entered the store associated with it; Dow stayed in the vehicle.
Through a window behind the store's counter, San Francisco Police Sergeant Matthew Mason observed Taylor take a beverage to the counter, point a gun (that turned out to be fake) at the cashier when the register was opened, take money from the register, and leave the store. Taylor was arrested, wearing neon gloves, a black jacket, and gray Nike shoes.
Other officers approached Dow, who was still in Taylor's vehicle. In a search of Taylor's car, police found yellow or green gloves with black palms, a black hoodie with plastic tips on the drawstrings, and a beanie with a snowflake design. Taylor's DNA was on the beanie, while Dow's was not.
4. Police Conclude It Was Taylor Who Also Robbed the San Leandro 7-Eleven
San Leandro Police Officer Timothy Perry testified to the similarities between Taylor - the undisputed Chevron robber - and the suspect in the surveillance footage of the 7-Eleven robbery. The beanie that was found in Taylor's vehicle at the scene of the Chevron robbery, and that was later confirmed to carry his DNA, had the same snowflake pattern as the beanie worn by the perpetrator of the 7-Eleven robbery. The gloves found in Taylor's vehicle at the Chevron robbery, like those seen in the 7-Eleven surveillance footage, were green or yellow with black palms. The black hoodie found in Taylor's vehicle, like the one in the surveillance footage, had plastic tips on the drawstrings. And the gray Nike shoes Taylor wore during the Chevron robbery appeared on the robber of the 7-Eleven. Perry concluded that Taylor was the 7-Eleven robber based on these similarities, as well as the fact that Taylor's cohort - Dow - had a different height, weight and skin tone.
Sergeant Mason, from the San Francisco Police Department, also watched the surveillance footage of the 7-Eleven robbery. He concluded that Taylor was the 7-Eleven robber based on his personal surveillance of Taylor, having "watched the way he moved," observing his face, and noting that Taylor was "wearing the same snowflake beanie and the same shoes."
Sergeant Mason further testified that the snowflake beanie and neon-green gloves (with a logo on the back side) recovered at the scene of the Chevron robbery, and the gray shoes Taylor wore during that robbery, were worn by Taylor in the uncharged Grocery Outlet robbery. Aside from Taylor's clothing, Sergeant Mason recognized Taylor to be the Grocery Outlet robber based on his body stature, build, and the way he moved as depicted in the Grocery Outlet surveillance footage.
B. Jury Verdict and Sentence
The jury found Taylor guilty on all counts - the Chevron robbery, the 7-Eleven robbery, and possessing a firearm as a felon. It also found true the allegation that Taylor personally used a firearm in the commission of the 7-Eleven robbery. Taylor admitted the prior prison convictions.
The court sentenced Taylor to an aggregate term of 15 years in state prison, comprised of the three-year midterm for the 7-Eleven robbery (count two); a consecutive ten-year term for a firearm use enhancement under section 12022.53, subdivision (b); a consecutive one-year term (one-third the midterm) for the Chevron robbery (count one); and a consecutive one-year term as to the first prior felony conviction. The court imposed but stayed a two-year midterm for possession of a firearm (count three) and one year as to another prior conviction, and struck the remaining priors. This appeal followed.
II. DISCUSSION
Although Taylor was not charged with the robbery of the San Francisco Grocery Outlet, the prosecutor introduced evidence of that robbery to prove Taylor's identity or common plan as the robber of the 7-Eleven. Taylor contends (1) the Grocery Outlet robbery evidence should not have been admitted because it was not sufficiently probative; and (2) the jury instructions regarding the Grocery Outlet robbery unconstitutionally lightened the prosecution's burden of proof. He also contends the matter should be remanded for reconsideration of the sentence enhancement under section 12022.53.
The record is unclear whether the prosecutor sought admission of the Grocery Outlet robbery to prove Taylor's involvement in both the contested 7-Eleven robbery and the uncontested Chevron robbery (during which he was arrested). Defense counsel conceded Taylor's guilt for the Chevron offense in his opening statement, and Taylor does not claim on appeal that the Chevron conviction should be overturned.
A. Admission of Evidence of Uncharged SF Grocery Outlet Robbery
1. Relevant Proceedings
Before trial, the prosecutor moved to admit evidence of the Grocery Outlet robbery under Evidence Code section 1101, subdivision (b). Under that statute, evidence that a person committed an uncharged crime may be admissible to prove a material fact (such as identity, common plan or scheme, or intent) other than a defendant's general propensity to commit criminal acts.
In support of the motion, the prosecutor highlighted the similarities between the Grocery Outlet robbery and the 7-Eleven robbery. As the prosecutor pointed out, during both of those robberies, the perpetrator wore a green and white snowflake beanie hat, a black hoodie with plastic tips on its drawstrings, neon green gloves, dark pants, and Nike sneakers that were gray (at least in part), and he held a firearm consistent with a black .40 caliber semiautomatic handgun. In both robberies, the robber took a beverage from the refrigerator to the counter, handed money to the clerk, pulled out a handgun and demanded money when the register was opened, and reached over the counter and grabbed the money. The prosecutor urged that the uncharged and charged crimes were so similar as to reflect a "signature." (See People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).)
Defense counsel opposed the admission of the evidence, arguing that the Grocery Outlet robbery was not sufficiently similar to the charged offenses.
The court admitted the evidence of the Grocery Outlet robbery to show identity and common plan or scheme, noting the similarities between the crimes.
2. Analysis
To be admissible under Evidence Code section 1101, subdivision (b), the uncharged conduct "must be relevant to prove a fact at issue (Evid. Code, § 210)" and may not be "unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (People v. Leon (2015) 61 Cal.4th 569, 598.) We review for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.)
a. Relevance to Identity and Common Scheme
To be relevant to identity, "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." (Ewoldt, supra, 7 Cal.4th at p. 403.) The similarities must be "so unusual and distinctive as to be like a signature." (Ibid.)
To be relevant to common plan or scheme, the uncharged misconduct must share "sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan." (Ewoldt, supra, 7 Cal.4th at p. 403.) The plan or scheme itself does not have to be unusual. (Ibid.)
Here, both standards were met. The uncharged Grocery Outlet robbery was strikingly similar to the charged 7-Eleven robbery and suggested a common plan to rob the stores. Both robberies occurred on a Wednesday evening. Surveillance footage showed that the robber of each business was of a similar height and weight, wore a distinctive snowflake-pattern beanie, wore unusual neon green gloves, approached the store clerk in the same way, used a similar-appearing gun, and took the money in a similar manner.
Taylor nonetheless contends the evidence of the Grocery Outlet robbery was not probative because there was no evidence tying Taylor to the Grocery Outlet robbery other than the evidence linking him to the 7-Eleven robbery. He asserts that similarities between uncharged and charged offenses do not help establish identity in the charged offense if the identity of the robber in the uncharged offense is in dispute. (Citing People v. Williams (2017) 7 Cal.App.5th 644, 677.)
Contrary to Taylor's assertion, there was ample evidence tying him to the Grocery Outlet robbery. First, the Grocery Outlet robbery was similar not just to the 7-Eleven crime, but also to the Chevron robbery that Taylor undisputedly committed (being caught red-handed). The distinctive beanie observed in the Grocery Outlet and 7-Eleven robberies was found in Taylor's car, bearing Taylor's DNA, at the scene of the Chevron robbery. The unusual gloves observed in the Grocery Outlet and 7-Eleven robberies were like the ones Taylor wore during the Chevron robbery. And the manner in which the Grocery Outlet robber approached the store clerk and took the money resembled Taylor's manner when he robbed the Chevron.
Second, there was independent evidence that Taylor was the robber of the Grocery Outlet. After viewing the surveillance footage, Sergeant Mason testified that Taylor was the Grocery Outlet robber based on his body stature, build, and the way he moved, as well as his clothing.
Third, the Grocery Outlet robbery was committed within the same general time frame as the Chevron and 7-Eleven robberies, further corroborating the idea that Taylor committed all three robberies as part of a consistent plan. In short, the evidence of the Grocery Outlet robbery tended to show Taylor's identity as the 7-Eleven robber and the existence of a common scheme.
Under Evidence Code section 352, the probative value of the evidence must not be "substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." (Evid. Code, § 352; see Ewoldt, supra, 7 Cal.4th at p. 404.) The degree of probative value turns on the similarity between the offenses, as well as whether they were committed close in time or supported by independent sources of evidence. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) Prejudice in this context refers to " ' "evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues." ' " (People v. Garceau (1993) 6 Cal.4th 140, 178; see People v. Callahan (1999) 74 Cal.App.4th 356; People v. Rance (1980) 106 Cal.App.3d 245, 250-251.) Factors relevant in evaluating prejudicial effect are whether the uncharged conduct resulted in a conviction and whether it is stronger or more inflammatory than the evidence of the charged offense. (Zepeda, supra, 87 Cal.App.4th at p. 1211.) A limiting instruction on the use of the evidence minimizes any possible prejudice. (People v. Johnson (1991) 233 Cal.App.3d 425, 446.)
Here, it was reasonable to conclude that the probative value of the uncharged Grocery Outlet evidence was not substantially outweighed by a substantial risk of undue prejudice. Evidence of the Grocery Outlet robbery was no stronger or more inflammatory than the 7-Eleven robbery. Furthermore, any danger of prejudice was minimized by the court's instructions not to conclude from the Grocery Outlet evidence "that [Taylor] has a bad character or is disposed to commit crime," and that if the jury concluded Taylor had committed the Grocery Outlet offense, the conclusion would be "only one factor to consider along with all the other evidence." (Johnson, supra, 233 Cal.App.3d at p. 446.)
Taylor protests that the evidence of the Grocery Outlet robbery did not add anything to the evidence already in the case, which had tied his robbery of the Chevron to the robbery of the 7-Eleven. In fact, Taylor insists, the Grocery Outlet evidence was "entirely cumulative" of the other evidence presented by the prosecution. He argues that the evidence was therefore of minimal probative value, which was outweighed by the risk of prejudice.
Respondent contends Taylor forfeited this argument because defense counsel did not object at trial that the Grocery Outlet evidence was cumulative and its probative value was therefore outweighed by the risk of prejudice, but merely argued that the charged and uncharged crimes were not sufficiently similar. An appellant may not challenge the admission of evidence on a ground not timely raised at trial. (Evid. Code, § 353; People v. Mickey (1991) 54 Cal.3d 612, 689; People v. Medina (1995) 11 Cal.4th 694, 729.) Taylor counters that his objection in the trial court was sufficient to preserve the arguments he now makes. We will proceed to the merits. --------
Taylor's argument is unpersuasive. First, the evidence of the Grocery Outlet robbery was not merely "cumulative," since it was the only evidence that Taylor perpetrated the robbery of the Grocery Outlet.
Second, Taylor's concern that the evidence added nothing to the proof that he committed the 7-Eleven robbery is unfounded: evidence of the Grocery Outlet robbery showed that a person of Taylor's build, stature, movement, and robbery method, as well as the shoes and clothing he wore or was found in his car, committed not just the Chevron robbery, but also the Grocery Outlet robbery, making it more likely there was a common scheme or plan that also included the 7-Eleven robbery, and that Taylor was the 7-Eleven robber.
Finally, if Taylor were correct that the Grocery Outlet evidence added nothing to the proof already admitted, he fails to show what prejudice the additional Grocery Outlet evidence presented. In the final analysis, he has not established an abuse of discretion in the admission of the Grocery Outlet evidence.
B. Jury Instruction
Pursuant to CALCRIM No. 375, the court instructed the jury that it could not consider the Grocery Outlet robbery evidence unless the People proved, by a preponderance of the evidence, that the robbery was committed by Taylor: "The People have presented evidence that the defendant committed an offense of robbery at the Grocery Outlet. That is not charged as a crime in this case. You may consider the evidence on the Grocery Outlet case only if the People have proved it by a preponderance of the evidence that the defendant did, in fact, commit the [un]charged offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proven by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard that evidence entirely."
The court also admonished the jury that, if it did conclude Taylor committed the Grocery Outlet robbery, it could consider that evidence only for limited purposes: "If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: 1) The defendant was the person who committed the offense in this case - I think that would be the 7-Eleven robbery; or, 2) The defendant had a plan or scheme to commit the offenses alleged in this case. In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. Do not consider this evidence for any other purpose except for the limited purpose of proving identity or common plan. Do not conclude from this evidence that the defendant has bad character or is disposed to commit a crime. If you conclude that defendant committed the charged offense - the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant was guilty of the charged robberies or the personal use of a firearm. The People must still prove each charge and allegation beyond a reasonable doubt."
Taylor argues that the court unconstitutionally lessened the prosecutor's burden of proof by instructing the jury that it could consider the Grocery Outlet robbery if it was proved by a preponderance of the evidence, rather than beyond a reasonable doubt. As Taylor acknowledges, however, our Supreme Court has repeatedly rejected such arguments. (E.g., People v. Sanchez (2016) 63 Cal.4th 411, 461; People v. Virgil (2011) 51 Cal.4th 1210, 1259-1260; People v. Foster (2010) 50 Cal.4th 1301, 1347; People v. Medina (1995) 11 Cal.4th 694, 762-764.) We must follow our Supreme Court's precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Taylor proposes that an exception be made to the established rule if "the uncharged offense relies on the same facts to prove identity as the charged offense." Under the instructions in this case, he urges, the jury could have relied solely on the snowflake beanie and black hoodie to find Taylor was the Grocery Outlet robber under a preponderance standard, and then found that the similarities between the Grocery Outlet robbery and the 7-Eleven robbery meant he was guilty of the 7-Eleven robbery beyond a reasonable doubt.
We find no reasonable likelihood that the jury construed the instructions in an unlawful manner. The court clearly apprised the jury that the Grocery Outlet evidence was not sufficient to convict Taylor of the 7-Eleven robbery, and that the 7-Eleven robbery had to be proved beyond a reasonable doubt. Specifically, the court instructed the jury that if it decided Taylor committed the Grocery Outlet robbery, the jurors "may, but are not required to, consider that evidence for the limited purpose of deciding whether or not [Taylor] committed the 7-Eleven robbery," but the Grocery Outlet evidence would be "only one factor to consider along with all the other evidence" and was "not sufficient by itself to prove the defendant was guilty of the charged robberies or the personal use of a firearm." (Italics added.) The court emphasized, "The People must still prove each charge and allegation beyond a reasonable doubt."
Taylor fails to establish instructional error.
C. Remand for Consideration of Sentencing Enhancement
Taylor's 15-year sentence included a 10-year enhancement for use of a firearm under section 12022.53, subdivision (b). At the sentencing hearing in June 2016, the court stated that it "ha[d] to impose the gun use" enhancement.
However, as of January 1, 2018, trial courts have discretion to strike or dismiss firearm enhancements under section 1385. (Stats. 2017, ch. 682, § 2.) Taylor argues in a supplemental brief that the amended statute applies to him retroactively under In re Estrada (1965) 63 Cal.2d 740, and therefore the case should be remanded for the trial court to decide whether to strike or dismiss the firearm enhancement.
Respondent agrees. (Citing People v. Francis (1969) 71 Cal.2d 66, 75-78 [retroactivity of amendments]; People v. McDaniels (2018) 22 Cal.App.5th 420, 423 [remand required in absence of clear indication trial court would not have exercised its discretion to reduce the sentence].)
We will accept respondent's stipulation for purposes of this case and remand the matter to the trial court to consider whether to impose the firearm-use enhancement under section 12022.53, subdivision (h).
III. DISPOSITION
The matter is remanded for the trial court to consider whether to impose the firearm-use enhancement under Penal Code section 12022.53, subdivision (b), in light of Penal Code section 12022.53, subdivision (h). The judgment is affirmed in all other respects.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.