PEOPLE v. GREEN

No. A146731.

THE PEOPLE, Plaintiff and Respondent, v. JAHTON GREEN, Defendant and Appellant.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

RICHMAN, J.

Defendant Jahton Green, who had previously served a nearly six-year prison term for assaulting and robbing a 68-year-old woman, was found guilty of committing two counts of second degree robbery (the victims being 63 and 76 years old) and one count of elder abuse. He asserts four arguments on appeal: (1) the trial court prejudicially questioned him on cross-examination, depriving him of due process and a fair trial; (2) the trial court unconstitutionally lowered the prosecution's burden of proof when it sustained objections to defense counsel's argument concerning reasonable doubt; (3) the restitution and parole revocation fines imposed by the court exceeded the statutory maximum; and (4) a $250 probation investigation fee was improperly imposed.

We conclude defendant's first two arguments lack merit. His last two arguments are, however, well taken. We thus affirm in part and reverse in part.

BACKGROUND

On September 19, 2014, an amended information charged defendant with three offenses: (1) second degree robbery of Michael Isaacs; (2) elder abuse of Isaacs; and (3) second degree robbery of Mutlu Ozer. As to the first count, the information alleged Isaacs was over 65 years of age and defendant had a prior robbery conviction. As to the third count, the information alleged defendant personally inflicted great bodily injury. As to all counts, the information alleged defendant had multiple prior strike convictions, prior serious felony convictions, and prior prison terms.

Defendant was tried before a jury in June 2015. On June 23, the jury found him guilty on all three counts. It also found true the prior strike and prior serious felony conviction allegations and one prior prison term allegation.

Defendant was sentenced to 21 years, eight months in state prison, with 864 days in presentence credit. He was also ordered to pay various fines and fees, including, as pertinent here, a $18,900 restitution fine (Pen. Code, § 1202.4),1 a suspended $18,900 parole revocation fine (§ 1202.45), and a $250 probation investigation fee (§ 1203.1b).

This timely appeal followed.

EVIDENCE AT TRIAL

Robbery of Michael Isaacs

Around 4:30 p.m. on the afternoon of August 22, 2013, 75-year-old Michael Isaacs parked his car on Harper Street in Berkeley while he waited for his wife to finish a medical appointment.2 Because she was going to be a while, he decided to take a walk. As he was walking, he passed defendant who was walking towards him on the same side of the street. Defendant was wearing a blue t-shirt and white or gray sneakers. They did not make eye contact, although Isaacs was able to observe defendant's face.

About a block after passing defendant, Isaacs crossed the street and began walking back to his car. He soon noticed defendant walking on the other side of the street about a half block up from him. Defendant then "disappeared."

Isaacs continued walking, but before he reached his car he was suddenly "rammed" by an unseen "force" that knocked him down. As Isaacs lay on the ground, he turned to face his attacker and saw defendant hovering over him, their faces a foot apart. They made eye contact, and defendant told him to take out his wallet and put its contents on the sidewalk. Isaacs complied, taking everything out of his pockets, including a wallet containing about $60, and placing it on the ground. Defendant took the money and left, only to return about 10 seconds later to ask if Isaacs had any more money. Isaacs said he did not, and defendant told him, "`Don't get up and call the police or I'll come back and hurt you.'" Defendant then hurriedly left, and Isaacs remained where he was for "quite a while," fearful defendant would hurt him if he got up.

When Isaacs felt sure defendant would not return, he got up, walked back to his car, and drove to his daughter's house. Forty-five minutes to an hour later, his wife took him to the hospital. There, he gave a statement to a police officer, describing the assailant as an African-American man with an average or athletic build and no facial hair, five feet, eight inches to five feet, nine inches tall, and 25 to 35 years old.

A few days after the robbery, Isaacs was shown a photo lineup. He identified a photograph of defendant as the assailant, testifying at trial he had been "100 percent" sure when he selected defendant's photograph. In January 2014, Isaacs testified at defendant's preliminary hearing and again identified him as the assailant. At trial, Isaacs was 100 percent certain defendant was the man who robbed him.

The Robbery of Mutlu Ozer

Around 7:00 p.m. that same day (a few hours after the Isaacs robbery), 63-year-old Mutlu Ozer was walking up a pathway that goes over the Solano Avenue tunnel between Berkeley and Albany. As he came to the circle at the top of the walkway, he felt someone breathing behind him.3 He turned around and saw a man a couple of yards behind his left shoulder. He described the man—later identified as defendant—as African-American, approximately 30 years old, six feet tall with a skinny, athletic build wearing blue jeans and a dark blue t-shirt. Ozer made eye contact with defendant, who asked for directions. Ozer gave him directions, and defendant walked off, crossing the street about five or six yards ahead of Ozer.

As Ozer continued his walk, defendant, who was now six to eight yards ahead of him on the opposite side of the street, turned around and yelled back, "`What direction, what direction' "as if Ozer's directions had confused him. Defendant then crossed to Ozer's side of the street and began walking towards him, coming right up to Ozer and stopping one yard in front of him. Ozer began offering further directions when defendant suddenly punched him in the left cheek, knocking him to the ground.

Ozer stood up and saw his cell phone in defendant's hand. Defendant punched him hard in his left cheek a second time, again knocking him to the ground. Ozer got up and moved away from defendant, who punched him a third time, again on his left cheek. After the third (or possibly fourth) punch, Ozer stayed on the ground. Defendant approached Ozer, who kicked defendant in the knees, got up, and ran.

As Ozer was running to the street, he felt defendant push him from behind and take a key purse from his rear pocket. Defendant searched the purse and yelled at Ozer for not having any money in it. Ozer ran into the street and flagged down a passing vehicle. He told the driver—Michael Graham—that defendant had just beaten and robbed him. Graham saw defendant quickly walking away and attempted to drive after him. Defendant turned to look at Graham and yelled at him for 15 to 20 seconds. He then sprinted across the street and again stopped to yell at Graham, this time for 15 to 30 seconds, before disappearing out of sight.

Ozer approached Graham, who suggested they follow defendant. Ozer instead asked for medical attention, so Graham called the police. Ozer was taken to a hospital, where he underwent surgery for a fractured wrist. He also suffered a fractured cheekbone. While at the hospital, Ozer gave a statement to a police officer.

Ozer later viewed a photo lineup and identified a photograph of defendant as the assailant. He also testified at defendant's preliminary hearing and again identified him as the assailant. He confirmed at trial he was "100 percent sure" defendant was the person who robbed him.

A few days after the incident, Graham was shown a photo lineup. He, too, identified a photograph of defendant as the assailant. He also identified defendant at the preliminary hearing, and at trial he had no doubt defendant was the man he saw running away from him and Ozer.

At trial, Graham described the assailant as an African-American male between 25 and 30 years old with short, cropped hair. He said the assailant wore black pants and an unzipped, black, hooded sweatshirt, but because Graham was colorblind, navy blue sometimes appeared black to him. Graham told the police the assailant had no facial hair and looked unshaven, but he testified at trial that the assailant had a short, cropped beard.

The Investigation

Four days after the Isaacs and Ozer robberies, Berkeley Police Sergeant David Lindenau was contacted by two police officers who had seen a bulletin about the robberies and believed, based on the assailant's description and the nature of the crimes, that defendant could be the perpetrator. Sergeant Lindenau ran defendant's record and discovered he had been paroled to the Oakland/Berkeley border area on July 24 (a month earlier) and his physical description was similar to that of the assailant. The sergeant prepared a photo lineup that he separately showed to Isaacs, Ozer, and Graham, all three of whom identified defendant as the perpetrator.

On September 3, Sergeant Lindenau contacted defendant's parole officer. She informed him defendant had an appointment with her the next day because she had questions about where he was staying. He had paroled to his mother's address but could not stay there, so parole arranged for him to stay in Volunteers of America (VOA)4 housing but he had not been staying there either. Sergeant Lindenau had a warrant for defendant's arrest, and the parole officer agreed to detain defendant if he appeared for his appointment.

The next day, defendant appeared at the parole office and was detained until Sergeant Lindenau arrived. Defendant had a cell phone with him that he confirmed was his, but he refused to disclose his password. He also had sunglasses but not prescription eyeglasses.

The VOA records showed that defendant checked out of the facility around 2:00 p.m. on August 22, 2013 and did not return until August 24. His cell phone records confirmed he was in the vicinity of the Isaacs and Ozer robberies at the time of the robberies.

The 2008 Robbery of Suhlan Lai

Around 9:30 a.m. on the morning of September 17, 2008, 68-year-old Suhlan Lai, who lived in El Cerrito, walked from her house to El Cerrito Plaza to buy milk. As she was walking home, she saw defendant walking ahead of her on a BART pathway that ran behind her house. Lai made a left turn towards her house, and defendant turned right and headed in the opposite direction.

When Lai reached her home, she went inside through the back door, put her purse on a chair in the living room, and went into the kitchen to put the milk away. Turning to open the refrigerator door, she suddenly saw defendant standing in her kitchen. He said, "`Money, money,'" so she returned to where she had put her purse down. Defendant saw the purse and began to search it, looking for her wallet. As defendant was searching the purse, Lai ran to the living room door. Before she could get out, however, defendant grabbed her and punched her in the face, knocking her to the ground. When Lai got up, defendant was gone, as was Lai's purse, which contained $650 in cash, a check for $9,300, and her cell phone.

At 10:12 a.m. that morning, Albany Police Officer Manny Torres responded to a call that a suspicious person was running from the reporting party's neighbor's yard near Brighton and Evelyn Avenues (approximately one block from El Cerrito Plaza). The reporting party told Officer Torres he saw a Black male wearing black clothing throwing items into the neighbor's garbage can. In the garbage can, the officer found a purse and some paperwork that belonged to Lai. Officer Torres recalled that on his way to the call, he had seen a man—defendant—matching the suspect's description, although the man was holding a black sweater instead of wearing it. He located defendant at a bus stop at the intersection of San Pablo and Solano Avenues, at most a half mile from El Cerrito Plaza. Defendant, who was not wearing glasses, had money and a sweater tucked into his pants.

Seventy-two-year-old Larry Frenette passed by the intersection when defendant was sitting in handcuffs at the bus stop. He approached a police officer and reported that defendant had been following him earlier that morning. According to Frenette, around 9:15 a.m., he was walking on a path under the BART tracks in El Cerrito, having just left a grocery store at El Cerrito Plaza. He saw defendant, who was wearing a white t-shirt, blue jeans, and a gray, hooded sweatshirt, walking towards him. As they passed each other, Frenette had a bad feeling.

After walking another 40 to 50 steps, Frenette turned around and noticed that defendant was now following him at a fast pace. Defendant crossed Brighton Avenue and sat down on a bench next to the path. Frenette kept walking and crossed the street, and defendant got up and started following him on the opposite side of the street. Frenette, who had been mugged before, believed defendant intended to rob him, so he walked into an adult school and began conversing with the receptionist. Defendant followed him inside, sat down by the door, and leafed through a magazine.

After a few minutes, Frenette quickly left the school and retraced his steps to El Cerrito Plaza. Defendant paralleled him the whole way back. Frenette pulled out his phone and pretended to be calling the police. When he reached the plaza, Frenette went into a grocery store. He left the store about 10 minutes later and walked to San Pablo Avenue, which was where he saw defendant under arrest at the bus stop.

On September 8, 2009, defendant was convicted of first degree robbery, first degree burglary, false imprisonment by violence, and assault by force arising out of his robbery of Lai.

Defendant's Testimony

Defendant acknowledged that when he was 22 years old he went to prison for five years, 10 months for his involvement in the Lai robbery.5 He claimed that there were two other people involved and he never entered Lai's house, having merely stood outside the back gate as a lookout. For his participation, he received half of the money stolen from Lai. After fleeing Lai's backyard, he sat at the bus stop on the corner of San Pablo and Solano Avenues, where he was detained by Officer Torres. When asked whether he had shoved his sweatshirt down his pants before he got to the bus stop, defendant said he was wearing his sweatshirt the whole time and Officer Torres was lying when he said his sweatshirt was in his pants. Defendant also denied having seen Frenette on the day of the Lai robbery, stating, "I don't know who cooked up that crack pot story." He admitted, however, he had been on the BART path that day.

Defendant was paroled on July 24, 2013 and planned to get a job as quickly as possible. He initially stayed with his mother who lived in Berkeley near the intersection of San Pablo and Alcatraz Avenues, but because she lived in a retirement home, he had to find alternative housing. He made arrangements to stay at the VOA, which helps parolees find housing and jobs. When he was released from prison, he was able to access an old bank account that contained $200. He also received $600 from his family and fiancée. He did not know how much of that he had left as of August 22 because he "was just being a fool with [his] money."

Defendant testified that around 2:00 p.m. on August 22, 2013, he went to Berkeley to pick up his social security card and pay his phone bill at a store on Ashby Avenue. After that, he went to the Cal Berkeley store, got something to eat, and walked to Live Oak Park.6 He admitted that on September 4, when Sergeant Lindenau first asked him where he was on August 22, he said he did not remember. He claimed that he recalled having been near Rose Street after the sergeant showed him that his cell phone records placed him near the Berkeley robberies.

A video taken at 5:48 p.m. that day by a Bank of America surveillance camera placed defendant near the intersection of Vine Street and Shattuck Avenue. In the video, defendant can be seen watching an elderly woman use the ATM and following her as she left the machine. Defendant denied that was what he was doing, reiterating his claim that he was looking at flowers at a flower shop and had not followed the woman but had merely moved out of the camera's view. According to defendant, he stayed in Berkeley until around 8:00 p.m. when his mother called to say she was home.

During cross-examination, the prosecutor played a clip of the recording of Sergeant Lindenau's September 4 interview of defendant in which defendant denied he was in Berkeley on August 22. Asked at trial if he was lying when he said that, defendant gave this answer: "I mean I kind of think my interpretation of what I was saying at the time was different than what was construed from my interpretations at the time, meaning that, you know, I'm not really kickin' it in Berkeley like that. I was more so in other places than I was in Berkeley. So I don't know. I guess I don't know. I shouldn't had said that like that." And this: "Like I said before, I think what was going on is kind of misconstrued. I wasn't intentionally lying. Deceptive maybe. I don't know. I wasn't intentionally lying. I don't remember where I was really." Asked why he was being deceptive, defendant responded, "I mean I said that it could be considered to be deceptive. I really didn't know where I was that day."

Asked if he only admitted he was in Berkeley on August 22 after being confronted with his cell phone records and the Bank of America surveillance video, defendant answered, "Yeah . . . I recall being in Berkeley after I recalled seeing the cell phone tower records. Obviously if that's my phone and I was in Berkeley and said I was in Berkeley, what else am I doing to say? No? I don't know."

Defendant acknowledged he refused to provide his cell phone password to Sergeant Lindenau, testifying it was because he had "a bunch of butt naked pictures" of himself and "a lot of porn" and denying it was because he was trying to hide anything. The prosecutor questioned whether defendant's girlfriend's phone number might have been incriminating, and defendant responded that if Sergeant Lindenau had asked for her number, he would have given it to him. The prosecutor reminded defendant the sergeant did ask for it but defendant would not give it to him. Defendant testified that was because he "didn't really want to talk to him no more." He then contradicted that testimony by admitting he had asked to speak to Sergeant Lindenau a second time when he was being interviewed. Defendant knew that as a condition of his parole he was obligated to provide his password to the police, but he still did not comply.

Defendant denied he robbed Isaacs or Ozer, yelled at Graham, stalked Frenette, or punched Lai in the face in her house. He also said Officer Torres was "a damn liar" for saying his sweatshirt was stuffed down his pants when he was arrested.

Additional Evidence Regarding Defendant's Appearance

Isaacs, Ozer, and Graham all testified that defendant was not wearing glasses during the robberies or at the preliminary hearing. Officer Torres testified he had seen defendant in numerous court proceedings and had never seen him wearing glasses.

Defendant testified he had always had a beard and had been wearing glasses for about five years. He was wearing glasses at trial, despite his testimony that he did not wear them when he was indoors or in closed spaces because he was nearsighted and needed them for distance. Defendant claimed he had glasses when he was in prison and on August 22 but not at the preliminary hearing because they were taken when he was booked into jail after his arrest. District Attorney Inspector Paul Balzouman testified that the property receipt from when defendant was booked reflected that he had sunglasses but not prescription eyeglasses in his possession. Also, defendant was not wearing glasses in a DMV photograph taken on August 1, 2013, and he had no restrictions on his driver's license.

DISCUSSION

The Trial Court's Questioning of Defendant Did Not Deprive Him of Due Process or a Fair Trial

Background

To prove defendant's identity at his trial on charges of robbing Isaacs and Ozer, the prosecutor introduced evidence of the Lai robbery, as permitted by Evidence Code section 1101, subdivision (b). In defendant's direct testimony, he acknowledged he served nearly six years in prison for the robbery. On cross-examination, he claimed there were two other people involved in the robbery and he merely acted as a lookout. The prosecutor asked the names of the two alleged accomplices, but defendant responded he did not feel comfortable divulging their names on the record. The following exchange then occurred:

"THE COURT: You need to tell the names. "DEFENDANT: I can't say their names, Judge. "THE COURT: Yes, you can. "DEFENDANT: I can't, Judge. "THE COURT: Yes, you can, and you will. What are their names? "DEFENDANT: Sir, I can't say the people [sic] names in this courtroom. "THE COURT: Well, you're going to have to. "DEFENDANT: With all due respect, the safety of my family is more important than the judicial proceedings. "THE COURT: Mr. Green, just say the names. If they exist, say their names. "DEFENDANT: They exist. "THE COURT: Then say their names. "DEFENDANT: (No response) "MR. FORD [the prosecutor]: Mr. Green— "THE COURT: He hasn't said the names yet. Sit down, counsel. [¶] What are the names, Mr. Green? "DEFENDANT: I meant what I said when I said— "THE COURT: So did I. "DEFENDANT: With all due respect, Judge— "THE COURT: Jurors, upstairs. Take a five minute recess."

After the jurors left the room, the exchange continued:

"THE COURT: Okay, we're on the record outside the presence of the jurors. "Mr. Green, you have to sort of understand something, and that is you can't give some testimony and refuse to give others, otherwise your whole testimony is stricken. It's as if you didn't even take the stand. So you either testify or you don't testify. You can't say I testify to some things, I ain't going to testify to others. That's the way the law is. That's the way all other witnesses are treated, and you're not going to be treated any differently. "So I'm going to—as soon as the jurors buzz, bring them back. "He's going to ask you the same question. Otherwise, your whole testimony is going to be stricken. You understand me? "DEFENDANT: I heard you."

When the jurors returned, the prosecutor asked for the accomplices' names, and defendant gave two names.

After defense counsel finished redirect examination and the prosecutor declined recross-examination, the court resumed questioning defendant:

"THE COURT: Okay. Mr. Green, do you know how far Live Oak Park is away from the Marin Circle? "DEFENDANT: I do now. "THE COURT: How many blocks? "DEFENDANT: I don't know blocks. I seen a map. They said 0.8 miles, or something like that. "THE COURT: So you plotted it out on some map? "DEFENDANT: No. I was actually given a map when I was representing myself. "THE COURT: Okay. And then on the Lai and Frenette matter and that trial, did you ever give the names of the other two alleged co-participants? "DEFENDANT: My attorney told me not to testify. "THE COURT: Okay. But did you tell your attorney, or anyone else, that the other—you didn't do the robbery, the guy who did the robbery is this guy? "MR. KARWASH [counsel for defendant]: I'm going to object, your Honor, to attorney/client privilege. "THE COURT: It's overruled. "DEFENDANT: I did. "THE COURT: And what did he do? "DEFENDANT: He told me that since they wasn't [sic] arrested and she didn't identify me as the perpetrator when she came to the in-field lineup, that it was best that I didn't say anything. "THE COURT: Okay. When was the first time—so this is the second time in court or the second time that you've told somebody about the alleged co-conspirators in that other case? "DEFENDANT: No, it's not the second time, sir. I've told people about it before. "THE COURT: Okay. And no one has done anything? "DEFENDANT: Actually, I wanted to file an appeal. It was a lot of stuff that I had thought about doing in regard to that case. I didn't want to try to take away any responsibility of it or minimize it, but I'm going to take responsibility for what I did. I'm not going to take responsibility for something that didn't happen. "THE COURT: Okay. So if you had told a lot of people about these other two alleged co-conspirators, why were you so reluctant to say it today?" "DEFENDANT: Because I didn't testify about it. It's a big difference. Everybody knew what happened in that case as far as the people that were concerned with me. Everybody knew. That wasn't a secret from my social perimeter. As far as the court system, my attorney told me not to talk about it. He said just let the case progress how it did, and I did. I took what he told me and just let it play out. I didn't know nothing about the law at the time. "THE COURT: So Mr. Frenette, you indicated that he's just making all this up? "DEFENDANT: Sir, I don't want to sound crass or anything like that, but at that time around that year I was—I was a bad person, and to be absolutely honest, that dude described that I was walking around following him for 40 minutes thinking that I was going to rob him. And to be frank, if I had any intentions of robbing him, I would have did it. I never saw that guy. I would never done nothing like that to nobody. I would never do nothing like that to nobody. "THE COURT: So do you have any explanation as to why he would come in here and testify as he did? "DEFENDANT: I think the cops at the time—I recall when I was at the bus stop seeing him and he was talking to an officer who was I believe— "THE COURT: So now you're saying you did see him? "DEFENDANT: I seen him at the bus stop when I was getting arrested or detained. "THE COURT: You said earlier you never seen him before in your life. "DEFENDANT: Well, excuse me. I shouldn't have said it that way. I apologize, but I did see him at the bus stop. "THE COURT: So go ahead with your answer. The cops . . . "DEFENDANT: They were there. He was standing somewhere off to the corner, and they were pointing, and he was talking to a cop, and he kind of like put his hand around his shoulder and they went out of my peripheral. And that was it. I believe Miss Lai came in another car from somewhere and they asked her— "THE COURT: So are you saying that the cops got him to testify about— "DEFENDANT: Sir, I'm not going to speculate to any of that. I don't know what happened. All I can tell you I never followed that man before. I never seen him before. During that time or when this incident was transpiring, I never seen that guy. There was no elderly guy walking, nobody. I seen various other peoples that day."

The court concluded by cross-examining defendant about the charged crimes:

"THE COURT: Have you ever seen Mr. Ozer before other than in court? "DEFENDANT: No, sir. "THE COURT: You have not? "DEFENDANT: Never seen him before, sir. "THE COURT: How about Mr. Isaacs? "DEFENDANT: I never seen him before, sir. "THE COURT: How about Mr. Graham? "DEFENDANT: I never seen him before. "THE COURT: And do you have any explanation as to why three people who really don't know each other selected you? "MR. KARWASH: Objection, your Honor. Speculation, lack of foundation. "THE COURT: Well, it does."

Analysis

Defendant contends the trial court deprived him of due process and a fair trial by engaging in what he calls "argumentative questioning of [him] on cross-examination that was not aimed at eliciting or clarifying material facts but at attacking his credibility."7 Such judicial misconduct claims are not preserved for appellate review where defense counsel failed to timely object to the alleged misconduct, unless such objection would have been futile. (People v. Sturm (2006) 37 Cal.4th 1218, 1237; People v. Corrigan (1957) 48 Cal.2d 551, 556; People v. Camacho (1993) 19 Cal.App.4th 1737, 1745.) Defendant submits his claim was preserved because his counsel did object and any additional objections would have been futile. Alternatively, if his claim was not preserved for appellate review, he contends his counsel was ineffective for failing to object to the trial court's questioning on the ground of judicial misconduct.

In fact, defendant's counsel only objected to two specific questions by the court, one on the ground of attorney/client privilege, the other on the ground that it called for speculation. Counsel asserted no other objections—most significantly, no objection that the court's questioning was prejudicial and constituted judicial misconduct. We need not, however, decide whether defendant's claim was thus forfeited and, if so, whether he received ineffective assistance of counsel, nor need we address the merits of his argument. This is so because the evidence of defendant's guilt was so overwhelming that he cannot establish prejudice, a requirement to obtain reversal on either of his theories. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [in order to establish ineffective assistance of counsel, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"]; People v. Snow (2003) 30 Cal.4th 43, 78 [judicial misconduct does not warrant reversal unless it was "`so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial'"].)

The descriptions of the perpetrator provided by Isaacs, Ozer, and Graham were very similar, and all three identified defendant in a photo lineup, at the preliminary hearing, and at trial. The men did not know each other and had no connection other than as the victims of and a witness to the robberies.

Defendant's cell phone records showed he was in the vicinity of the robberies at the times they occurred. When asked by Sergeant Lindenau if he had been in Berkeley on August 22, defendant initially lied, only admitting that he had been when confronted with his cell phone records. His testimony about why he told Sergeant Lindenau he had not been in Berkeley was completely lacking in credibility. Likewise, his account of how he spent his afternoon in Berkeley—a period of approximately six hours—again lacked credibility, down to his testimony that he was looking at flowers rather than stalking an elderly woman at an ATM.

There was also evidence showing that defendant engaged in a pattern of preying on older individuals for the purpose of robbing them. Suhlan Lai testified about the 2008 robbery when defendant invaded her home, assaulted her, and stole her purse, identifying defendant in that case as the assailant. Defendant stalked Frenette the same morning he robbed Lai, and behaved in a manner that convinced Frenette defendant was intending to mug him. The August 22 surveillance video at an ATM in Berkeley showed defendant watching an elderly woman conducting a transaction at the ATM and then following her as she walked away.

There was also evidence that defendant attempted to change his appearance at trial, particularly as to his eyeglasses. The testimony was consistent that defendant was not wearing glasses during the robberies, he did not have glasses on him when booked into jail following his arrest, he did not wear glasses at the preliminary hearing, he was not wearing them in a DMV photo taken on August 1 (twenty-one days before the robberies), and his driver's license did not have any restrictions concerning glasses, even though defendant testified he needed them for distance. Despite all this, defendant was wearing glasses during trial and claimed he had done so for at least the preceding five years.

Finally, defendant's testimony concerning the Lai robbery was also lacking in credibility, including his claim that he was merely a lookout while two accomplices committed the actual assault and robbery (a claim not asserted as a defense in his trial), and for his minor role he received half of the money stolen from Lai. His only explanation for Frenette's testimony was that it was a "crack pot story," despite no motive for Frenette to lie, and he labeled Officer Torres a "damn liar" for testifying that defendant had his sweater stuffed in his pants when he was detained following the Lai robbery.

In light of this evidence, we cannot agree that the trial court's questioning of defendant, assuming arguendo it was improper, deprived defendant of a fair trial or that there was a reasonable probability of a different outcome but for the questioning.

The Trial Court Did Not Lower the Prosecution's Burden of Proof by Sustaining the Prosecutor's Objections to Defense Counsel's Definitions of Reasonable Doubt

Background

During closing argument, defense counsel made statements to the jury concerning the meaning of reasonable doubt, which resulted in this exchange:

"MR. KARWASH: To convict Mr. Green, you have to be certain, you have to be positive that Mr. Green is the robber. "MR. FORD: Objection. Misstates the law. "THE COURT: It does. "MR. KARWASH: You have to show—the prosecutor has to show by a proof beyond a reasonable doubt. And what does proof beyond a reasonable doubt mean? It means that you must have an abiding conviction. That's the language in the instruction. You'll have it in the back. An abiding conviction means a certainty— "MR. FORD: Objection. Misstates the law. "THE COURT: It does. "MR. KARWASH: An abiding conviction has to do with a sense of lasting feeling. "MR. FORD: Objection. Misstates the law. "THE COURT: It does."

After then arguing that the reasonable doubt standard was more exacting than the preponderance of the evidence and clear and convincing evidence standards, defense counsel continued:

"MR. KARWASH: So beyond a reasonable doubt means that if you have a doubt today, or if you have a doubt five years from now in this case, or if you have a doubt ten years from now in this case after you deliberate, then the case has not been proven. "MR. FORD: Objection. Misstates the law. "THE COURT: It does."

Defense counsel then concluded his closing argument shortly thereafter.

Analysis

Defendant contends that by sustaining the prosecutor's objections to his counsel's "correct[]" descriptions of the reasonable doubt standard, the trial court conveyed to the jurors that they need not be certain of their verdict and that their belief in defendant's guilt need not be long lasting, the effect of which was to unconstitutionally lower the prosecutor's burden of proof. His argument lacks merit for two reasons: the jury was properly instructed on the prosecutor's burden of proof and the meaning of beyond a reasonable doubt, and the court properly sustained the objections because defense counsel misstated the law.

The court instructed the jury on CALJIC No. 2.90, which addresses the prosecutor's burden of proof, as follows: "A defendant in a criminal action is presumed to be innocen[t] until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. [¶] This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." The court also instructed the jury that it must follow the instructions as given by the court even if comments by the attorneys conflicted with those instructions. It is presumed that the jury understood and followed these instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)

The Supreme Court spoke on this issue in People v. Mayfield (1993) 5 Cal.4th 142 in the context of the prosecutor's argument to the jury. There, quoting People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8, the court stated that the "court's instructions, not the prosecution's argument, are determinative, for `[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'" (People v. Mayfield, supra, at p. 179.) While the situation in Mayfield was not identical to that here, it nevertheless instructs that the court's instructions to the jury are paramount to extraneous comments made by counsel. And given that the court here instructed the jury on CALJIC No. 2.90 and instructed that it must follow the court's instructions, we presume the jurors rightly treated the court's instructions on reasonable doubt as the applicable law.

Beyond this, defense counsel's representations to the jury concerning the meaning of reasonable doubt misstated the law. His interpretation of reasonable doubt repeatedly conveyed to the jurors that in order to convict defendant they had to be "certain" or "positive" of defendant's guilt. This was incorrect: the standard is proof beyond a reasonable doubt, not beyond any doubt (In re Winship (1970) 397 U.S. 358, 364), as the terms "certain" and "positive" connote. (See, e.g., Merriam-Webster's Collegiate Dict. (11th ed. 2007) pp. 202, 968 [defining "certain" as "indisputable" and "positive" as "incontestable"].)

The Restitution and Parole Revocation Fines Exceeded the Statutory Limit

As part of defendant's sentence, the trial court imposed a restitution fine of $18,900 pursuant to section 1202.4, subdivision (b)(1), and a suspended parole revocation fine in the same amount pursuant to section 1202.45, subdivision (a). Defendant objects that the fines exceeded the $10,000 statutory maximum and contends the matter must be remanded to permit the trial court to exercise its discretion to set the fines at an amount within the statutory limit. As the People concede, defendant is correct the fines were excessive. (§ 1202.4, subd. (b)(1) [fine shall not exceed $10,000]; § 1202.45, subd. (a) [parole revocation restitution fine is to be set at the same amount as the restitution fine].) He is also correct the matter must be remanded to remedy this error.

Section 1202.4, subdivision (b)(1), directs the court to set a restitution fine "at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) [starting on January 1, 2014,] and not more than ten thousand dollars ($10,000)." Subdivision (b)(2) provides a permissible formula for calculating the fine: "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." The court apparently applied this formula to arrive at the $18,900 fine ($300 minimum fine times 21 years times three felonies).

The People urge us to reduce the fines to the $10,000 maximum, rather than remanding, reasoning that if the court believed the $18,900 fine to be appropriate, then it would necessarily consider $10,000 to be acceptable. But, as noted, the amount of the fines is "at the discretion of the court" (§ 1202.4, subd. (b)(1); People v. Urbano (2005) 128 Cal.App.4th 396, 406), and from the record before us we cannot ascertain whether the court believed the section 1202.4, subdivision (b)(1), to be mandatory or whether it recognized the amount was within its discretion. Remand is therefore the appropriate remedy here.

Imposition of the Probation Investigation Fee Was Improper

As part of defendant's sentence, the trial court ordered him to pay a $250 presentence investigation fee pursuant to section 1203.1b, which requires the court to impose such a fee "in any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report. . . ." As pertinent here, the statute further provides: "[T]he probation officer . . . shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of . . . conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203. . . . The reasonable cost of these services . . . shall not exceed the amount determined to be the actual average cost thereof. . . . The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver."

Defendant argues here that the court's imposition of the $250 fee violated section 1203.1b because the court did not order a hearing on his ability to pay the fee, it failed to make a determination as to his ability to pay, and he did not waive his right to the court making such a determination. It appears defendant is correct, as all we see in the record on this issue is a statement in the presentence report that "defendant has not been advised of the amount(s) and of the right to have a Court hearing with counsel concerning his ability to pay, pursuant to Section 1203.1b of the Penal Code due to his refusing to be interviewed," and a recommendation by the probation officer that the fee be set at $250. The matter must thus be remanded for compliance with section 1203.1b.

DISPOSITION

The matter is remanded for further proceedings concerning the restitution and parole revocation fines and the presentence investigation fee. In all other regards, the judgment of conviction is affirmed.

Kline, P.J. and Stewart, J., concurs.

FootNotes


1. All statutory references are to the Penal Code except where otherwise indicated.
2. Harper Street is one block from the Ashby BART station.
3. The circle is approximately 2.5 miles from Harper Street.
4. VOA is a residential facility for indigent parolees.
5. Defendant was arrested on September 17, 2008 and paroled on July 24, 2013. In our calculation, he was incarcerated for four years, ten months.
6. Live Oak Park is a five-minute walk from Marin Circle.
7. Evidence Code section 775 permits the court to "call witnesses and interrogate them the same as if they had been produced by a party to the action." The parties can "object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party."

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