Opinion
A147605
03-08-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE THOMAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN224237-02)
I.
INTRODUCTION
Appellant Robert Lee Thomas appeals from his convictions, after a jury trial, for robbery and carrying a loaded firearm. Thomas claims the prosecution violated Penal Code section 1054.7 by its late disclosure of jail telephone calls, the trial court improperly admitted the calls at trial, and failed to provide a jury instruction on the late disclosure. We conclude the trial court did not abuse its discretion in admitting the calls because the late disclosure of the calls was necessitated by defense counsel's delayed disclosure of alibi witnesses. Thomas next argues the prosecutor committed misconduct during closing argument. Finally, Thomas argues there was insufficient evidence to support his convictions because of the victim's lack of positive identification of him as the robber. Based on our review in the light most favorable to the judgment, we conclude a reasonable jury could find Thomas guilty based on the physical evidence linking him to the crime, his jail telephone calls, and a letter Thomas had written to his mother while in jail. We affirm.
All subsequent references are to the Penal Code unless otherwise identified.
In supplemental briefing, Thomas argues his sentence must be remanded pursuant to the amendment to section 12022.5, subdivision (c) to allow the trial court to exercise its discretion to strike the firearm enhancement. The Attorney General agrees that as of January 1, 2018, section 12022.5 applies to Thomas's sentence but believes remand is unnecessary under the facts of this case. We remand for the trial court to exercise its discretion with regard to the firearm enhancement. We otherwise affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
The San Francisco County District Attorney filed an information charging Thomas with second degree robbery in violation of section 211 (count one); carrying a loaded firearm with intent to commit a felony in violation of section 25800, subdivision (a) (count two); having a concealed firearm in a vehicle in violation of section 25400, subdivision (a)(1) (count three); being a passenger with a concealed firearm and not being the registered owner in violation of section 25400, subdivision (a)(3) (count four); carrying an unregistered, loaded firearm in a public place in violation of section 25850, subdivision (a) (count five); and receiving stolen property in violation of section 496, subdivision (a) (count six). The information further alleged that for counts three and four, the firearm was loaded and both the firearm and ammunition were within Thomas's immediate reach. (§ 25400, subd. (c)(6)(A).) Finally, it alleged Thomas was not the registered owner of the firearm in counts three, four (§ 25400, subd. (c)(6)(B)), and five (§ 25850, subd. (c)(6).)
Thomas pleaded guilty to counts three, four, and five. Thomas proceeded to trial on counts one and two with the prosecution dismissing count six. The jury found Thomas guilty of counts one and two. The court sentenced Thomas to a total term of 12 years in prison.
B. Trial Testimony
The robbery victim, R.G., refused to comply with the court's subpoenas to appear for trial so the court ordered his preliminary hearing testimony to be read to the jury. On the morning of September 28, 2014, R.G. was standing on the sidewalk in San Francisco taking photographs. An African-American man in his mid- to late- 20's approached him. The man, who was six foot two inches or six foot three inches tall, was wearing a hoodie and R.G. could not describe his face. He could not recall if the man had facial hair or not.
As R.G. was taking photographs, Thomas grabbed him by the shoulder and said "drop the bag." R.G. saw that Thomas had a gun. He described the gun as "not a small handgun" but eight or nine inches long, and it looked American made.
Thomas lifted R.G.'s camera over his head and took it. R.G. dropped his Timbuk2 bag that contained his Samsung tablet and iPad, camera equipment, and some notebooks. Thomas started to walk away but then asked for R.G.'s wallet.
Thomas got into the passenger side of a dark gray or silver car that R.G. thought was a Toyota or a Honda. R.G. saw the license plate. R.G. ran down an adjoining street and asked a woman if he could use her phone. R.G. told the police the license plate number of the car. The police arrived to the scene and then a short while later, another officer arrived with R.G.'s bag. The tablet, notebooks, and camera equipment were all gone.
About 40 minutes after the robbery, Officer Leonard Morrow saw a black Toyota with the license plate matching R.G.'s report and stopped the car. The Toyota was approximately six miles from the site of the robbery. Thomas was in the driver's seat and his codefendant Yvonne Simpson was in the front passenger's seat. Simpson was the registered owner of the car. Police found R.G.'s iPad under the front passenger seat of the car as well as a Glock handgun. In the center console, police found several of R.G.'s credit cards.
Officer Morrow testified that between the site of the robbery and where the car was pulled over is the Seventh and Market area of San Francisco. It is a high crime area where you can buy or sell anything, including stolen electronics.
The police took R.G. to observe the suspects who had been pulled over in the car with the license plate number he provided. R.G. recognized the car. The car was black rather than dark gray. There was a woman he did not recognize and man who fit the description he gave of the robber. The man looked like he was wearing different clothes. When asked if he could identify the robber, R.G. stated: "I can't tell. I don't think so, but it might be." At the preliminary hearing, the prosecution asked R.G. if he recognized the person in the courtroom and he said maybe but he was not sure.
Thomas is six feet three inches tall and 180 pounds, although Officer Morrow testified he is built like a "linebacker" and looks to weigh closer to 200 pounds. Thomas has a birthmark or scar on the left side of his face.
On cross-examination, defense counsel raised inconsistencies between R.G.'s statements in the 911 call and his testimony. In the 911 call, he said the robber was six feet three inches tall and weighed 225 or 230 pounds. In the call, he did not identify any scars on the robber's face or any writing on the robber's hoodie. He did not remember the robber having a bruise on his face.
The defense presented the expert testimony of Dr. Scott Fraser on eyewitness identification. Dr. Fraser explained that the earliest recall is going to be the most accurate description of what a person experienced. A person's highest rate of recognition of another person is within the first four to six hours. People normally remember "distinctive cues" that are unique, strange, or abnormal about another person. Dr. Fraser listened to R.G.'s 911 call where he provided no distinctive cues as to the robber's appearance. In his interview with the officer on the scene, R.G. described the robber as "clean cut." Dr. Fraser believed this meant the robber had no marks, ablations, or facial hair.
In his written statement, R.G. wrote that the person presented for the show up looked like the robber but had bruise or blood on his left cheek. Dr. Fraser noted this was a difference between R.G.'s memory and the person presented to him. Dr. Fraser offered his opinion that R.G.'s vocabulary was consistent with rejecting Thomas as the perpetrator.
Defense counsel also played a voicemail she received from R.G. prior to trial. R.G. stated: "I don't recognize [Thomas] as being the person who, you know, robbed me. Ah, and I just don't like going in there and, ah, incriminating him at all . . . . It's just not going to make me feel any, any, better."
C. Letters and Telephone Calls from Jail
During trial, the court admitted a letter found in Thomas's cell. The letter was to Thomas's mother and stated:
"I'm . . . kind of nervous right now. That trial date is getting close, and for the most part I feel good about the possible outcomes. There are a few things that concern me. The girl that comes to court and her older sister supposed to testify saying they dropped me off. I know you wondering why I would involve them in this. Doesn't care if it's a lie or the truth. Having a solid alibi will make things a lot better than it is already. I don't necessarily need the girls to get on the stand on my behalf. But I need somebody. So if you got a better suggestion let me know. You could even do it. Doesn't really matter. The purpose of doing it like this is to create her say she say contradictory statements. I've been doing my research and asking my lawyer questions. A jury can't find you guilty based on he say/she say. 'Her say' is the court term. I know you probably feel like based on what the witness said should be enough to let me walk. But I want to ensure my return home. It's no room for errors or guesses. I'm in need yo help so I can make the best possible decision with all that's ahead."
The prosecution also admitted eight telephone calls made by Thomas from jail. Thomas was aware the calls were recorded. In the first call on September 28, 2014 to Preaya Burnett, Thomas stated: "I was way in the Fillmore when this shit happened." "I was just doing hella shit, so I need to sit down for real for real." Burnett stated that he "can't be doing the same stuff you used to do back then. You was on the right path, had a job and everything. You need to just stop and just focus on work. All that little street stuff that shit's over with." Thomas responded: "yeah, that shit over with."
In the second call on September 28, 2014 to Thomas's mother, she asked him what happened. His mother stated, "Oh, you done got this girl involved in your craziness" and he said, "I guess so, yeah."
In third call on October 2, 2014 to his codefendant, Simpson, Thomas advised her "don't say too much." Simpson asked: "that money, do you want it?" and Thomas told her he does not need it.
In the fourth call on November 14, 2014 to an unidentified woman, she asked Thomas what he did to end up in jail and he responded: "Nothing too violent." He then stated, "I'm in jail for a robbery and a gun."
In the fifth call on June 4, 2015 to an unidentified woman, she told him that an NBA camera crew got robbed in Oakland. Thomas stated: "Oh, yeah, you know them cameras . . . they cashing out for them . . . niggas gonna hit, niggas gonna hit for something like that."
In the sixth call on June 15, 2015, Thomas stated: "Being in my situation . . . I'll be stupid as fuck not to learn from what the fuck I just put myself through, you feel me? Cause, really I put myself through that, I should never, you feel me? But you know, it is what it is. Never again though."
In the seventh call on June 17, 2015, Thomas discussed the fact that they found no stolen items in his possession. In the eighth and final call admitted to an unidentified woman, Thomas stated that it was "over with" because there was no positive identification. He said, "[t]hey don't got no positive ID, they don't got no cameras and that's the only thing . . . That witness is the only thing that, you feel me? It . . . is basically the only thing that's saying that I did it, so they not sure, you feel me? . . . I'll be walking fo sho." He then said, "I can't be out there doing anything . . . I ain't gonna get a big head and do all the little mainy shit niggas do when they beat cases and shit."
D. Motion to Exclude Jail Telephone Calls
On August 10, 2015, the prosecution disclosed 150 jail telephone calls made by Thomas to the defense. On August 13, 2015, the prosecutor sent an e-mail to defense counsel stating that he was reviewing additional calls and if he discovered calls that were relevant, he would notify defense counsel. On August 26, 2015, the prosecution requested and received an additional 702 jail calls that were disclosed to Thomas on August 27, 2015. The prosecution informed defense counsel it would seek to admit calls from June 2015, and two calls from September 28, 2014 and one call from October 2, 2014.
On August 31, 2015, Thomas filed a motion in limine to exclude the jail telephone calls. Thomas objected that the disclosure of the calls was not timely made within 30 days of trial. Thomas argued it was improper and prejudicial for the prosecutor to disclose hundreds of calls on the eve of trial.
The court held a hearing on the motion to exclude the telephone calls as late discovery. Defense counsel argued there was no good cause for the late disclosure. The prosecution explained that defense counsel had just recently, in August 2015, given him a statement of an alibi witness, Preaya Burnett, who had spoken to the defense investigator in January 2015. Additionally, on August 24, 2015, defense counsel provided a second alibi witness, Ashley Williams. The prosecutor stated it changed "the dynamic of the case" and required him to develop additional evidence. He requested the jail telephone calls in the hope of disputing Thomas's alibi.
The prosecutor further noted that on August 7, 2015, defense counsel disclosed a voicemail from R.G. stating that Thomas was not the robber. The prosecutor argued: "The facts of the case have changed dramatically in the last month," and based on the alibi and the victim's recent statement, he requested the phone calls. He disclosed the calls as soon as he received them.
The prosecution requested the first set of calls (June 3, 2015 to June 25, 2015) on July 26, 2015, received them on August 6, 2015, and disclosed them to defense counsel on August 10, 2015. The prosecution requested the second set of phone calls on August 26, 2015 and disclosed them on August 27, 2015.
The court ordered that the prosecutor could only introduce the 13 calls that he had identified to the court in his case-in-chief, he could, however, introduce additional calls on rebuttal or as impeachment against a defense witness.
The court stated that it was August 31, 2015 and trial was scheduled to begin on September 17, 2015 so defense counsel had plenty of time to review the three phone calls (two from September 28, 2014, and one from October 2, 2014) from the set of calls disclosed on August 27, 2015. The court denied the motion for late discovery.
The court again addressed the jail telephone calls before the start of trial. The parties argued about admission of the November 14, 2014 call where a woman asked Thomas "what did you do?" and he responded, "Nothing too violent." The prosecution sought to introduce this call that was not included in the original list of calls and Thomas objected. Defense counsel again argued Thomas was prejudiced by the delay in disclosing the calls. The court offered to provide a continuance and defense counsel declined. The court stated: "I don't see bad faith. I see, you know, not being really diligent, but you also have the option where the public defender . . . could have subpoenaed that information earlier." The court declined to exclude the call.
III.
DISCUSSION
A. Admission of the Jail Telephone Calls
Thomas argues the prosecution violated the discovery statute, section 1054.7, but does not argue a federal due process violation or a violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Thomas asserts that the prosecution knew of the jail telephone calls and failed to disclose them within 30 days of trial.
Under Brady, the prosecution may not suppress evidence material to the defendant's guilt or punishment. (Id. at p. 87.)
We review a trial court's ruling on discovery matters under an abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 299.) The prosecution must disclose to the defense any statements by the defendant. (§ 1054.1, subd. (b); People v. Zambrano (2007) 41 Cal.4th 1082, 1133, disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Section 1054.7 requires disclosures to be made "at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately[.]" If a party fails to comply with its discovery obligations, "a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).)
After hearing the circumstances of the disclosure, the trial court denied Thomas's motion for late discovery. The defense disclosed its intention to call not one, but two, alibi witnesses in the month prior to trial. The first witness had been interviewed in January 2015 but neither her identity nor her statement was disclosed to the prosecution until August 2015. The second alibi witness was disclosed on August 24, 2015. In response to these disclosures, the prosecution sought additional jail phone calls in the hope of undermining the alibis. The calls were requested on August 26, 2015 and disclosed on August 27, 2015.
Although the court found the calls admissible, it limited the number of calls admitted at trial to the 13 the prosecution had identified, only three of which came from the August 27, 2015 disclosure. The trial court noted that defense counsel had plenty of time to review the calls before trial commenced on September 17, 2015.
Thomas cites People v. Lewis (2015) 240 Cal.App.4th 257, 259 (Lewis), where Division One of this court expressed "serious concerns whether the prosecution satisfied its discovery obligations" but affirmed the convictions. In Lewis, the prosecution informed the defense on the first day of trial that it would not be calling the arresting officer as a witness. (Ibid.) The prosecution failed to turn over Brady material about the officer that was favorable to the defense. (Id. at p. 262.) The record did not reveal any legitimate reason for the prosecution to fail to disclose its witness list until trial, and for not disclosing that the arresting officer was on leave for misconduct. (Id. at p. 266.) The court concluded "the delay smacks of gamesmanship." (Ibid.) The prosecution's actions denied Lewis the opportunity to respond effectively. (Ibid.)
Much of the reasoning of Lewis is inapposite here because Thomas does not assert a Brady violation. Moreover, unlike Lewis, the record here disclosed a valid reason for the prosecution's delay in seeking the jail phone calls. The prosecutor stated that he did so in response to the defense disclosure of two alibi witnesses. Thomas argues the prosecutor's claim that he did not seek the jail calls until Thomas offered the two alibi witnesses was "disingenuous." Thomas argues the prosecutor should have expected him to present an alibi defense. There is no evidence to support this assertion and no evidence of "gamesmanship." Further, the trial court found Thomas had the necessary time to respond to the recent disclosure prior to trial.
Even if the late discovery of the phone calls ran afoul of section 1054.7, exclusion of evidence is permitted "only if all other sanctions have been exhausted." (§ 1054.5, subd. (c).) Under section 1054.5, other sanctions for a violation include immediate disclosure, delaying the testimony of a witness, a continuance, or any other lawful order. (§ 1054.5, subd. (b).) Here, the trial court offered defense counsel a continuance to review the jail calls. Defense counsel declined the offer. Having found no improper conduct, other than perhaps a lack of diligence by the prosecution, the trial court had broad discretion to fashion a remedy in the event of discovery abuse to ensure that the defendant received a fair trial. (People v. Jenkins (2000) 22 Cal.4th 900, 951 (Jenkins).) We conclude the trial court did not abuse its discretion in denying Thomas's request to exclude the evidence.
1. Jury Instruction on Late Disclosure
Thomas argues the trial court erred in denying his request for the court to instruct the jury on the untimely disclosure of the jail telephone calls.
The Attorney General fails to address this issue in his brief on appeal.
A trial court has discretion to give an instruction on untimely disclosure of evidence. Section 1054.5, subdivision (b) provides that "the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Italics added.) CALCRIM No. 306 provides: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: <describe evidence that was not disclosed> [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure." (CALCRIM No. 306.)
As noted, the prosecutor argued that the evidence was disclosed as soon as it came into his possession and he sought the calls in response to Thomas's disclosure of two alibi witnesses. The disclosure did not prevent Thomas from presenting his case or calling the alibi witnesses. The trial court declined to give the instruction because it was "not technically correct" and the prosecution "did what they could have done."
Thomas argues that defense counsel was unable to fully address the 702 calls provided three weeks before trial. He contends it impeded his ability to present a defense. There was, however, no evidence to support this assertion. To the contrary, as outlined above, the prosecution ultimately only admitted eight calls; just three of which were from the August 27, 2015 disclosure.
In People v. Nguyen (2015) 61 Cal.4th 1015 (Nguyen), our Supreme Court found the trial court did not err in refusing to provide the instruction where the prosecution failed to timely disclose a testifying probation officer's field notes. The probation officer testified as a rebuttal witness to the testimony of the defendant and two alibi witnesses and relied on his field notes that had never been disclosed to the defense. (Id. at pp. 1062-1063.) The defendant requested a jury instruction that the notes had not been properly disclosed to the defense and the jury could consider this in determining the accuracy of the notes and the credibility of the witness. (Id. at p. 1063.) The trial court refused the instruction because it did not find the notes should be stricken or precluded. (Id. at p. 1064.)
Our Supreme Court stated it did not appear that the prosecution failed to disclose the notes to gain a tactical advantage, and the failure to disclose the notes sooner did not affect their accuracy. (Ibid.)
Similarly, here, there was no evidence the prosecution failed to obtain or disclose the calls to gain a tactical advantage, and the failure to disclose them earlier did not affect the accuracy of the calls. Like the trial court in Nguyen, the court here did not find that the calls should be precluded. The trial court was within its discretion in refusing to provide the instruction to the jury.
2. Prejudice
It is the defendant's burden " 'to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.' " (Jenkins, supra, 22 Cal.4th at p. 950, quoting People v. Pinholster (1992) 1 Cal.4th 865, 941.) In Jenkins, the prosecution failed to disclose a jailhouse informant who heard the defendant make inculpatory statements until two months before the preliminary hearing in violation of the court's discovery order. (Ibid.) Our Supreme Court found no prejudice because there had been "ample opportunity" to challenge the evidence or develop an affirmative defense. (Id. at pp. 950-951.) The court further stated that trial courts have broad discretion to determine if a sanction is appropriate and the degree of sanction to impose. (Id. at pp. 951-952.)
Thomas argues he was prejudiced by the court's admission of the late discovery. He contends the case against him was exceedingly weak and the jail telephone calls greatly bolstered the prosecution's case. There is no question that the calls helped the prosecution's case, but there was still strong evidence of Thomas's guilt even absent the calls. It was not reasonably probable that if the prosecution had disclosed the telephone calls further in advance of trial that the verdict would have been more favorable to Thomas.
R.G.'s original description of the robber, while imperfect, was consistent with Thomas's appearance. R.G. also provided the license plate number of the car and a description of the gun. Thomas was arrested in the car with the gun as well as R.G.'s credit cards and other possessions. The prosecution also had the letter found in Thomas's jail cell where he admitted involving the "girls" which appeared to be a reference to the two alibi witnesses. He stated it did not matter whether it was a lie or the truth. He also stated that anyone, including his mother could "get on the stand on [his] behalf." He wanted to "ensure my return home."
Finally, Thomas has not shown a continuance would not have cured the harm. (Jenkins, supra, 22 Cal.4th at p. 950.) Defense counsel's primary complaint was that she did not have the time and resources to review the eight calls right before trial in more than two weeks from when the last disclosure was made. If indeed there was insufficient time, a continuance would have remedied that problem, but defense counsel rejected the court's offer. Under these circumstances, we cannot conclude Thomas was prejudiced by the court's admission of the jail phone calls.
B. The Prosecutor Did Not Commit Misconduct During Closing Argument
1. Griffin Error
Thomas alleges the prosecution committed error under Griffin v. California (1965) 380 U.S. 609 (Griffin). Griffin prohibits the prosecutor from commenting upon a defendant's failure to testify. (People v. Vargas (1973) 9 Cal.3d 470, 475 (Vargas).) "However, not every comment upon [the] defendant's failure to present a defense constitutes Griffin error. It is now well established that although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule 'does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.]' [Citations.]" (Ibid.)
Thomas identifies three statements that he believes constituted error. First in discussing the jail phone calls, the prosecutor argued as follows:
"Without knowing it, Mr. Thomas gave himself up on the jail calls. He said words and expressed thoughts that only a guilty man would. He left words unsaid that an innocent man would scream at the top of his lungs. [¶] I didn't do it. [¶] Ms. Simpson got me involved. [¶] Where is the real robber? [¶] He didn't say any of these things ever."
In another part of his argument the prosecutor stated: "It was the words he said and those he left unspoken that can lead you to only one conclusion: That he's guilty." Third, the prosecutor described Thomas's conversation with Simpson on October 2, 2014 as advising her: "Don't speak the truth, Ms. Simpson. Keep the lie with us."
Respondent argues that Thomas has forfeited any challenge to these statements on appeal because he failed to object to them before the trial court. In order to preserve a claim of error under Griffin, a defendant must object and seek a curative instruction. (People v. Lancaster (2007) 41 Cal.4th 50, 84.) Therefore, the argument has been waived.
Respondent claims even if we review the claim on the merits, it fails. We agree. As to the first statement, Thomas argues that stating he "didn't say any of these things ever" that the use of the word "ever" implicated Griffin and his rights under Doyle v. Ohio (1976) 426 U.S. 610 which prohibits a reference to a defendant's silence after being advised of his Miranda rights. Thomas concedes the prosecution could address his silence in the phone calls but argues use of the word "ever" was impermissible.
Thomas fails to cite to the record or provide any facts about whether he was given Miranda warnings or made a statement. He fails to further develop his argument alleging Doyle error so we find the argument waived. (See Utility Consumers' Action Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688, 697.)
In People v. Poletti (2015) 240 Cal.App.4th 1191 (Poletti), the Sixth District concluded the prosecutor's comments on the defendant's statements in a recorded call did not constitute Griffin error. The case involved the defendant's sexual abuse of his stepdaughter. (Id. at p. 1194.) The defense argued that the victim failed to tell her mother or father about the abuse. The prosecutor argued: " 'Ask yourself who's the one person who knows best why she didn't tell? Who is the person who knows? And it's the defendant. [¶] . . . [¶] On the pretext call. The defendant says "I didn't think you'd tell." And he's the one who knows best. The evidence demonstrates that.' " (Id. at p. 1212.)
The court stated that Griffin does not extend to comments on the state of the evidence. (Poletti, supra, at p. 1212, citing People v. Johnson (1992) 3 Cal.4th 1183, 1229.) The court concluded the prosecutor's comments were in reference to a piece of evidence, the pretext call, and not an implicit suggestion that the defendant should have testified. (Id. at p. 1213.) There is no reasonable likelihood the jury would have interpreted the prosecutor's remarks as an invitation to draw an inference of guilt from the defendant's failure to testify. (Ibid.)
Thomas relies on Vargas where the court found Griffin error, although it concluded it was harmless beyond a reasonable doubt. (Vargas, supra, 9 Cal.3d 470.) In closing argument, the prosecutor stated: " '[T]here is no evidence whatsoever to contradict the fact that [the witness] saw [the defendants] over [the victim]. And there is no denial at all that they were there. The defendants are guilty beyond any reasonable doubt . . . .' " (Id. at p. 474.) The defendants objected and the court admonished the jury to disregard the prosecutor's statement. (Ibid.) The prosecutor's use of the word "denial" connotes a personal response by the defendant. (Id. at p. 476.) The court concluded that the prosecutor's remarks could have been interpreted as "commenting upon [the] defendant's failure to take the stand and deny his guilt." (Ibid.)
Unlike Vargas, the prosecutor here did not argue that Thomas failed to deny committing the robbery. Here, the prosecutor made the comments that Thomas never asked who the robber was or said he was innocent in his conversations during the eight jail phone calls. Respondent argues that in this context, the jury would have understood the use of the word "ever" as a reference to the fact Thomas never said these things during the phone calls. Like Poletti, the prosecutor was commenting on the statements Thomas made in the recorded calls—a comment on a piece of evidence—not Thomas's failure to testify.
Similarly, we find no Griffin error in the prosecutor's statements that Thomas was instructing his codefendant, Simpson, to keep quiet and "keep the lie with us." In the jail call, Thomas instructed Simpson "just don't say too much." There is no reasonable likelihood the jury understood this to be a comment on Thomas's failure to testify at trial.
Finally, the prosecutor's statement: "It was the words that he said and those he left unspoken that can lead you to only one conclusion: That he's guilty," is also a comment about the evidence. The prosecutor is directly addressing the jail phone calls and what Thomas said, or did not say, in those calls.
Even if the prosecutor's statements were error, we find any error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman).
There was no direct statement in this case about Thomas's failure to testify and the nature of the error was "much less direct, and accordingly much less serious" than in cases where reversal is required. (Vargas, supra, 9 Cal.3d at p. 478.) "In any event, 'indirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citations.]' [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Additionally, the trial court instructed the jury that defendant had the constitutional right not to testify and "[d]o not consider, for any reason at all, the fact that the defendant did not testify." The jury was also instructed that nothing the attorneys say is evidence.
2. Vouching
Thomas argues the prosecutor engaged in impermissible vouching. The prosecutor stated: "Our evidence is better than eyewitness identification. Ours is circumstantial evidence and in its brutally honest form." Thomas objects to the use of the word "our" as placing the power and prestige of the district attorney's office behind the evidence.
Defense counsel objected that this statement "misstates the law" but did not object that it was vouching. Defense counsel did not request an admonition. Therefore, Thomas failed to preserve this claim of prosecutorial misconduct. (See People v. Mendoza (2016) 62 Cal.4th 856, 906)
Even as to the merits we conclude this statement did not constitute misconduct. It is misconduct for prosecutors to bolster their case "by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it." (People v. Huggins (2006) 38 Cal.4th 175, 206-207.)
Thomas contends the prosecutor's statement left the jury to speculate that the prosecutor knew something they did not. But the prosecutor was referring to the evidence before the jury. Before this statement the prosecutor discussed Thomas's letter to his mother and his desire for an alibi witness. The jury would have reasonably understood the reference to "our evidence" as the evidence that the prosecution had presented. (See People v. Bonilla (2007) 41 Cal.4th 313, 337 [references to the truthfulness of a witness's testimony did not suggest the prosecutor had personal knowledge of facts outside the record].)
3. Disparaging Defense Counsel and Thomas
Thomas identifies three alleged errors. First, the prosecution stated Thomas presented a "fantastical" defense. In closing argument, the prosecutor stated it was the jury's job to weigh the evidence then said, "The fantastical story that you heard in the defense opening statement . . . ." Defense counsel objected, "that is improper." The court admonished the jury that statements of counsel are not evidence. In rebuttal, the prosecutor argued that defense counsel's version of the facts was not supported by the evidence and it was a "fantasy." Defense counsel objected that this was "impugning the defense" and "misconduct." The court overruled the objection.
Thomas also points to the prosecutor's statement during rebuttal: "Don't do what [defense counsel] just did. She mischaracterized the evidence." Defense counsel objected and the court overruled the objection.
"It is misconduct for the prosecutor in argument to impugn the integrity of defense counsel or to suggest defense counsel has fabricated a defense." (People v. Cash (2002) 28 Cal.4th 703, 732.) But our Supreme Court has stated that prosecutors have "wide latitude" in describing the factual deficiencies in the defense case. (Id. at p. 733.)
Thomas cites People v. Herring (1993) 20 Cal.App.4th 1066, to support his argument of misconduct. In Herring, the prosecutor directly attacked defense counsel's character stating: " 'His people are rapists, murderers, robbers, child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth.' " (Id. at p. 1073.) The court found these statements were clearly misconduct and implied defense counsel suborned perjury. (Id. at p. 1075.)
A prosecutor can characterize the testimony of a witness as untruthful but cannot state that defense counsel fabricated a defense. (People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338.) "To the extent the prosecutor here did not simply argue the defense was unsupported by facts and thus a sham, but that defense counsel 'put forward' a sham, the argument improperly implied that counsel was personally dishonest." (Ibid., italics omitted.)
The prosecutor's statements here are a comment on the factual deficiencies in the defense case. Contrary to Thomas's assertion in his brief that the prosecutor classified defense counsel as an "untruthful fantasist," the prosecutor only characterized the defense as a fantasy. This is not an attack on defense counsel or Thomas personally, but only that their version of events was unbelievable. "The prosecutor did not accuse defense counsel of factual fabrication or deceit; he merely argued, as he was allowed to do, that there was no evidence for counsel's theory." (People v. Tate (2010) 49 Cal.4th 635, 692-693 [holding the prosecutor's statement that defense counsel had created a "preposterous" defense involving a "phantom killer" was not misconduct].)
Also raised as misconduct is the prosecutor's statement that Thomas's letter to his mother was "offensive to what we are doing here" and while he was entitled to a fair trial, "that's not what he wanted. He wanted an unfair trial so that he could benefit." Defense counsel objected stating "I believe this is misconduct." The court instructed counsel to move on.
This statement was in reference to Thomas telling his mother that anybody could testify on his behalf and his mother "could even do it." Respondent argues Thomas was willing to elicit perjury to help his case and that conduct was "offensive" to our legal system. Our Supreme Court has held that the prosecutor can state that a defendant lied to the jury if this is a proper inference drawn from the evidence. (People v. Earp (1999) 20 Cal.4th 826, 863 [" 'The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence [and] to argue on the basis of inference from the evidence that a defense is fabricated . . . .' [Citations.]"].) The prosecutor's statement that Thomas's conduct was offensive because he advocated lying to the court and sought to make the trial unfair was not misconduct.
4. Misstatements of Law
Thomas claims the prosecutor made several misstatements of law in closing argument. Thomas points out that when discussing the jail phone calls, the prosecutor said "[i]t was the words that he said and those that he left unspoken that can lead you to only one conclusion: That he's guilty." Thomas argues it was improper for the prosecutor to argue the phone calls constituted circumstantial evidence of consciousness of guilt.
The court instructed the jury pursuant to CALCRIM No. 224 that if it "can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, [the jury] must accept the one that points to innocence." Thomas contends that the prosecutor's argument instructed the jury that the calls must be used to find him guilty. Thomas cites no legal authority to support his argument. We find no merit to this claim. The prosecutor did not misstate the law and properly argued the evidence. (See People v. Morales (2001) 25 Cal.4th 34, 44 ["At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. [Citations.]"].)
Next, the prosecutor argued in rebuttal, "The defense wants you to think that Mr. Thomas pled guilty to the gun because he was accepting responsibility for his conduct. He pled guilty to the gun because he was inoculating you against his lawlessness . . . [¶] . . . [¶] He pled guilty to the gun so that you could say, well, at least he took responsibility for something. Let's walk him on the rest." Thomas argues this statement invited the jury to misapply the law, ignore the jury instructions, and speculate on his intent in pleading guilty.
Thomas has forfeited this claim by failing to object before the trial court. (People v. Riggs (2008) 44 Cal.4th 248, 298). In addition, once again Thomas fails to cite any legal authority to support his argument. (Cal. Rules of Court, rule 8.204(a)(1)(B).) A failure to provide citations to the record, legal argument, or authority forfeits the issue on appeal. (People v. Hovarter (2008) 44 Cal.4th 983, 1029.)
Even if not forfeited, the prosecutor's comment was made in response to defense counsel's statement that the jury should find Thomas not guilty because he had taken responsibility for the gun by pleading guilty to those counts. We give prosecutors greater latitude in rebuttal: "even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, do not constitute misconduct. [Citation.]" (People v. McDaniel (1976) 16 Cal.3d 156, 177.)
Finally, we note that the trial court instructed the jury that counts three, four, five, and six did not need to be decided and they should not "speculate about or consider in any way why you no longer need to decide this count." Even if the prosecutor's statements about the counts that were not before the jury was improper, we find no prejudice. The prosecutor's statement did not render the trial so fundamentally unfair to trigger the Chapman standard, nor is it reasonably probable that a more favorable result would have been reached absent the alleged objectionable argument. (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.)
Thomas's final misconduct claim is to the prosecutor's reference to his alibi witnesses. In opening statement, defense counsel told the jury that at the time of the robbery, Thomas was with Preaya Burnett and Ashley Williams who dropped him off to meet Simpson. The defense counsel ultimately did not call Burnett or Williams to testify. Thomas argues it was improper for the prosecutor to reference Burnett as an alibi witness in discussing the jail phone calls in closing argument. The prosecutor stated, "What did Mr. Thomas say? The first phone call was to Preaya Burnett. You heard her name as a potential alibi witness for Mr. Thomas." At this point, defense counsel objected that opening statements of counsel are not evidence. The court stated: "Statements of counsel are not evidence." Then the prosecutor continued: "You heard her name in opening statements. She supposedly was with him at the time of the robbery. But what did he say to her? I was in the Fillmore when this happened. Robbery suspects or people who commit robberies do not need to tell their alibi witness where they were at the time of the crime. Their alibi witness already knows it."
A prosecutor may comment on a discrepancy between a defendant's opening statement and the trial evidence. (See People v. Harris (1989) 47 Cal.3d 1047, 1085, fn. 19.) Even if the prosecutor's reference to opening statements was improper, the court immediately instructed the jury that the opening statement was not evidence. The court again instructed the jury at the end of the trial that nothing the attorneys say is evidence. "In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." We presume that "the jury heeded the admonition and any error was cured." (People v. Wash (1993) 6 Cal.4th 215, 263.)
C. Sufficiency of the Evidence
Thomas argues his conviction was not supported by sufficient evidence. He asserts that without R.G.'s eyewitness identification there was insufficient evidence for the jury to convict him.
Under the substantial evidence test, the court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 480.)
Thomas relies on People v. Cuevas (1995) 12 Cal.4th 252 (Cuevas) which held that the sufficiency of an out-of-court identification to support a conviction should be judged by the substantial evidence standard. In Cuevas, two witnesses, Gomez and Guzman, saw a shooting at a party. (Id. at p. 276.) After the shooting, Gomez identified the defendant as the shooter and provided the same description three days later. (Ibid.) At trial, Gomez recanted his identification of the defendant, but admitted that he had made the two prior identifications of the defendant to the police. (Ibid.) The prosecution offered evidence that both witnesses had a motive to falsely recant their statements because they believed it was wrong to accuse a member of a rival gang of committing a crime. (Ibid.) "From this evidence, a reasonable jury could have concluded that Gomez and Guzman were telling the truth when they made their out-of-court statements to police officers and that they recanted those statements in court for gang-related reasons." The court held that the out-of-court statements are " 'substantial evidence—that is, evidence which is reasonable, credible, and of solid value—' (People v. Johnson, supra, 26 Cal.3d at p. 578) from which a reasonable jury could conclude beyond a reasonable doubt that the defendant assaulted Garcia with a firearm." (Id. at pp. 276-277.)
Thomas argues that unlike Cuevas, here R.G. never made a positive identification of him and failed to identify him positively in court. R.G. never recanted his prior identification; his identification always wavered. He provided a description that was consistent with Thomas, but he never positively identified Thomas. Forty-five minutes after the robbery when he was asked to identify the car and the robber, R.G. stated "I can't tell. I don't think so, but it might be." In his written statement, hours after the robbery, R.G. wrote that the person he saw at the show up looked like the robber but had a bruise or blood on his left cheek. R.G. also testified that he was "really bad at [] describing faces."
At the preliminary hearing, when asked if he recognized the robber in the courtroom, R.G. stated maybe but he was not sure. Defense counsel cross-examined R.G. about his description of the robber in the 911 call and the fact he did not mention that the robber had a scar or bruise on his face. Finally, defense counsel played a voicemail from R.G. that stated: "I don't recognize [Thomas] as being the person who, you know, robbed me."
While R.G. did not positively identify Thomas, he did provide a consistent description that the robber was six feet three inches tall and weighed approximately 225 pounds. Thomas is in fact, six feet three inches tall but he only weighs 180 pounds. However, Officer Morrow testified that he was built like a "linebacker" and appeared to weigh more than 180 pounds.
All of this information was before the jury as well as the testimony of the eyewitness identification expert. It was the jury's role to weigh R.G.'s statements with the other evidence presented by the prosecution.
In addition to this foregoing evidence, the prosecution's evidence also showed that Thomas was arrested in a car with the license plate number provided by R.G. approximately 40 minutes after the robbery took place. Thomas was in the driver's seat of the car and his codefendant was in the passenger seat. The police found R.G.'s iPad under the passenger seat along with Thomas's gun. They also found R.G.'s credit cards in the center console of the car. Thomas had $40 and Simpson had $225.
Officer Morrow testified that between the site of the robbery and where the car was found is a "[h]igh crime area" where people buy and sell stolen goods.
The prosecution also presented eight of the jail phone calls and Thomas's unsent letter to his mother. From the letter, the jury could reasonably conclude Thomas was concocting an alibi. He stated he got "[t]he girl" and "her older sister" involved to come to court and say they dropped him off. "Doesn't care if it's a lie or the truth." He stated that he needed someone to get on the stand and suggested his mother could do it. In the phone calls, he admitted to his mother that he got "this girl" (Simpson) involved in his "craziness." When he talked to Simpson he advised her "don't say too much" and she asked about whether he wanted the money. In the November 14, 2014 call, when an unidentified woman asked him what he did, he responded "[n]othing too violent" rather than denying that he had done anything at all.
The prosecutor argued this was not the behavior of an innocent person. From all of the circumstantial evidence, including the letter and the calls, a reasonable jury could infer Thomas was guilty.
Contrary to Thomas's argument, a failure of the victim to positively identify the defendant in court is not fatal to a conviction. (People v. Mendez (2010) 188 Cal.App.4th 47, 59.) "Weaknesses in the testimony of eyewitnesses are to be evaluated by the jury. [Citation.] A jury's finding will not be reversed unless it is clearly shown that under no hypothesis is there sufficient evidence to support it. [Citation.] As long as substantial evidence supports the jury's finding, the possibility that the jury could reasonably have reached a different conclusion does not justify reversal. [Citations.]" (Ibid.) Here, even without R.G.'s positive identification of Thomas, there was sufficient evidence to support the jury's verdict.
In his reply brief, Thomas cites to the recent decision from this appellate district in People v. Sanford (2017) 11 Cal.App.5th 84 (Sanford). In Sanford, Division One reversed the robbery conviction of a 16-year-old who was found in the getaway vehicle because no witnesses could identify him and no physical evidence linked him to the crime. Five or six men went into a jewelry store dressed in dark clothing, wearing hoodies, bandanas, and masks. (Id. at p. 86.) One eyewitness was in the store and several more saw them exit the store and depart in two cars. (Id. at pp. 86-87.) Approximately 10 minutes after the robbery, officers pulled over one of the cars matching the description and license plate given by an eyewitness. (Id. at p. 89.) There were two adults and Sanford in the car. (Id. at p. 90.) Witnesses identified the shoes and belt of the adult robbers but not Sanford. No weapons, bandanas, masks, or jewelry were found in the car. (Id. at pp. 90-91.)
Division One reversed Sanford's conviction because "[a]lmost no evidence was presented to establish that Sanford was there." (Sanford, supra, 11 Cal.App.5th at p. 92.) There was no physical evidence linking Sanford to the robbery and Sanford was not wearing the distinctive clothing identified by witnesses. (Ibid.) There was no evidence to support the prosecution's theory that the three people who were in the car when it left the robbery scene were the same three who were stopped later. (Id. at p. 94.) The absence of jewelry, weapons, or disguises suggests the car stopped after the robbery. (Ibid.) There was also evidence based on the witnesses' testimony that the driver of the car when it was stopped was not the driver at the scene of the robbery. (Id. at p. 95.) Thus, there was not substantial evidence to support Sanford's conviction.
While this case is similar to Sanford in some respects, the key difference here is there was physical evidence linking Thomas to the robbery. When Thomas was stopped, under the passenger seat was R.G.'s iPad and Thomas's gun as well as R.G.'s credit cards in the center console of the car. Further, although R.G. wavered in his ability to identify Thomas, Thomas matched the consistent description he provided of the robber. Thomas's conviction was further supported by the jail letter and phone calls which evidenced his guilt. Based on our review, in the light most favorable to the judgment, we conclude a reasonable jury could find Thomas guilty.
D. Cumulative Error
We have rejected Thomas's arguments that errors occurred during his trial. Accordingly, we reject his contention that the cumulative effect of the errors requires reversal. (See People v. Bolin (1998) 18 Cal.4th 297, 335.)
E. Remand for Resentencing on the Firearm Enhancement
The trial court sentenced Thomas to the low term of two years for his violation of section 211 stating the court selected the low term because of his young age. On the allegation under section 12022.53, the court imposed a ten-year sentence to run consecutively. On the allegation of section 12022.53, subdivision (b), the court imposed a ten-year sentence but stayed it pursuant to section 654.
One month after Thomas's sentencing hearing, the court recalled his sentence and resentenced Thomas due to an error in one of the counts Thomas pleaded guilty to prior to trial. His ultimate sentence remained the same, including the firearm enhancement at issue here.
At the time of Thomas's sentencing, section 12022.5 prohibited the court from striking a firearm enhancement. On October 11, 2017, section 12022.5 was amended, effective January 1, 2018, to permit a court to exercise its discretion to strike a firearm enhancement. The current version of section 12022.5, subdivision (c) provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
The relevant statutes provided: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (former § 12022.5, subd. (c), § 12022.53, subd. (h).)
Thomas's case was fully briefed on August 3, 2017. On December 14, 2017, Thomas filed a supplemental brief arguing that the amendment to section 12022.5 applied retroactively because his case was not yet final. He contends his case must be remanded to the trial court to allow it to exercise its discretion. On December 28, 2017, the Attorney General filed a supplemental brief arguing Thomas's argument was not ripe unless his appeal was still pending on January 1, 2018. The Attorney General then argued although section 12022.5 applied retroactively, Thomas was not entitled to a remand for the trial court to exercise its discretion to strike the firearm enhancement because the record at sentencing shows the trial court would not have exercised its discretion under section 1385.
Both parties agree under the reasoning of In re Estrada (1965) 63 Cal.2d 740 (Estrada) this court must apply the amendment retroactively. Estrada held that in the absence of a statutory "saving clause" precluding retroactive application, it is presumed the Legislature intended any change in the penal law that mitigates punishment to "apply to every case to which it constitutionally could apply," including cases not yet final at the time the law becomes effective. (Id. at p. 745.)
The Attorney General argues the reasoning of People v. Francis (1969) 71 Cal.2d 66, controls here. People v. Francis applied the rule in Estrada to a change in the law that gave the trial court discretion to impose a misdemeanor rather than a felony. (Id. at pp. 76-77.) Similarly, here, the amended version of section 12022.5 gives the trial court discretion to impose a lesser sentence and must be applied retroactively to Thomas's case.
The Attorney General argues based upon the trial court's comments at the sentencing hearing, the court would not have exercised its discretion to strike the firearm enhancement. The Attorney General quotes the court's statements about Thomas failing to take responsibility for his actions and seeking to have others lie for him. The court stated his behavior had been "far less than admirable" because he failed to take responsibility and concocted "some strange story." But the court also stated that Thomas made a "bunch of unfortunate choices" including carrying a loaded gun but "[u]nfortunately my hands are tied . . . . I think it's a severe sentence for a first offense and [] for a 21 year old." The court admonished Thomas for his behavior and again stated "unfortunately the minimum I can sentence you to is 12 year[s]. I'm not happy about that honestly because I don't like sentencing young people to state prison. But my hands are tied here." The court further stated: "I'm going back and forth between, well, this is a guy who really tried to get around the system versus a guy who is young and stupid."
Given the trial court's statements at the time of sentencing, we do not agree with the Attorney General that it is unnecessary to remand because the record is clear the trial court would not have exercised its discretion. We therefore remand to the trial court to conduct a new sentencing hearing to exercise its discretion under section 1385 and to decide whether to strike the section 12022.5 firearm enhancement, or to again impose the enhancement term.
IV.
DISPOSITION
The matter is remanded for resentencing for the court to exercise its discretion with regard to the firearm enhancement. In all other respects, the judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
SCHULMAN, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.