People v. Clark

• Decision Date: 05 April 2021
• Docket Number: C089046
• Citation: People v. Clark, 62 Cal.App.5th 939, 277 Cal.Rptr.3d 176 (Cal. App. 2021)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerquan Dwayne CLARK et al., Defendants and Appellants.

62 Cal.App.5th 939

277 Cal.Rptr.3d 176

The PEOPLE, Plaintiff and Respondent,

v.Gerquan Dwayne CLARK et al., Defendants and Appellants.

C089046

Court of Appeal, Third District, California.

Filed April 5, 2021

Certified for Partial Publication.^*

Victoria H. Stafford, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant, Gerquan Dwayne Clark.

James S. Thomson, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant, Anthony Maurice Brown.

Kamala D. Harris, Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

DefendantsGerquan Dwayne Clark and Anthony Maurice Brown robbed three men at gunpoint.Shortly thereafter, defendants were tracked to a local retail store using a phone app on one of the cell phones they had stolen.Upon arriving at that location, police located a vehicle that matched a description received at the robbery scene.The vehicle was registered to Brown.Brown and then Clark were apprehended leaving the store.Clark had one of the victims’ cell phones.In Brown's car, police found more property taken from the victims.Additionally, the other two victims’ cell phones were found in the parking lot near Brown's car.At a showup, one of the victims identified both defendants, and another identified Clark.At trial, both victims identified Clark as the man who pointed the gun at them, and one victim identified Brown as the other man.Police never found the gun.At trial, defendants asserted that the prosecution had not proven beyond a reasonable doubt that the object used during the robbery was a real gun.

A jury found defendants guilty of three counts of robbery in the second degree with firearm enhancements.Additionally, the jury found each defendant guilty of possession of a firearm by a felon.The trial court sentenced Clark to an aggregate term of 21 years and Brown to an aggregate term of 12 years.

On appeal, defendants assert their felon in possession of a firearm convictions and the firearm enhancements must be reversed because (1)the trial court erred in admitting evidence of Clark's prior uncharged act involving possession of a firearm pursuant to Evidence Code section 1101, subdivision (b), on the theory that the uncharged act evidence was relevant to prove Clark knew he possessed a real gun at the time of the robberies, and (2)the prosecutor committed misconduct in urging the jurors to use that prior uncharged act as propensity evidence.Brown separately asserts (3)the prosecutor committed misconduct in vouching for the prosecution and disparaging defense counsel, and (4) cumulative error requires reversal.Finally, as to sentencing, Brown asserts (5) that because of Senate BillNo. 136(Stats. 2019, ch. 590, § 1.)(S.B. 136), the matter must be remanded for the trial court to strike his prior prison term enhancement.

We reverse the convictions of felon in possession of a firearm as to both defendants and all firearm enhancements.We conclude the trial court erred in admitting evidence of Clark's prior uncharged act pursuant to Evidence Code section 1101, subdivision (b), and the evidentiary error was prejudicial as to the felon in possession of a firearm count and the firearm enhancements.Because we reverse the possession conviction and firearms enhancements, we need not reach defendant's claims that the prosecutor committed misconduct in making a propensity argument to the jury.As for Brown's separate prosecutorial misconduct claim, we conclude the prosecutor committed misconduct in vouching for the prosecution and disparaging defense counsel, but these instances of misconduct did not prejudice Brown.We further conclude Brown's cumulative error contention is meritless.Finally, because of S.B. 136, we strike Brown's prior prison term enhancement and remand for resentencing as requested by the parties.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Defendants were charged with robbery in the second degree ( Pen. Code, § 211; counts one, two, three)¹ and felon in possession of a firearm (§ 29800, subd. (a)(1); count four).As to each of the three robbery counts, it was alleged that Clark personally used a firearm within the meaning of section 12022.53, subdivision (b), and, as to Brown, that a principal was armed with a firearm in the commission of the robberies within the meaning of section 12022, subdivision (a)(1).It was further alleged Brown sustained a conviction of a prior serious felony, negligent discharge of a firearm causing great bodily injury (§§ 246.3,12022.7), and another prior conviction, possession for sale of cocaine base and concealed firearm in a vehicle (§ 25400, subd. (c)(6);Health & Saf. Code, § 11351.5 ), for which he served a prior prison term. (§ 667.5, subd. (b).)

Prosecution Evidence

The victims, J.R., O.F., and G.N. worked as construction pipelayers.On April 24, 2018, they were working on a project in Land Park in Sacramento.Sometime between noon and 12:30 p.m., they stopped working and sat by the side of the road to eat lunch together.After about five minutes, two males approached to within approximately three to four feet.One of the men pulled out a handgun and demanded money, wallets, and phones.He racked the slide of the gun.O.F. testified that the man pointed the gun at his stomach, and G.N. testified that, at one point, the man pressed the gun against his left cheek.J.R. said the gun was black and described it as a "regular handgun,""not too big, not too small."It was not a revolver because it had a slide and did not have a cylinder.O.F. described the gun as small, and, upon refreshing his recollection, agreed he had told police the gun was black and gold.He testified the gun looked real.G.N. testified the gun was small, chrome and black in color.

At trial, J.R. and O.F. both identified Clark as the man who pulled out the gun.J.R. identified Brown as the other man.O.F. testified that, because he had been focused on Clark and the gun, he did not get a good look at the other person.J.R. and O.F. both testified Clark pointed the gun at them.G.N. did not identify either defendant.

J.R. gave defendants his phone.O.F. gave defendants his wallet, containing approximately $10, credit cards, and identification, as well as his phone.G.N. had $45 or $48 in cash as well as credit cards and his license in his wallet, which he gave to the man with the gun.The other man took G.N.’s lanyard and his company phone.After the two men took items from the victims, they left.The entire incident lasted two to four minutes.J.R. acknowledged he did not see the gun for very long, only for a few seconds.

J.R. described the man with the gun to police as a black male, five feet eight inches tall, 175 pounds, wearing a black long-sleeve shirt, black jeans, a do-rag, and no facial hair.He described the other person as five feet 10 inches, approximately 180 pounds, and wearing a black hoodie.²O.F. recalled that he told officers the man with the gun who robbed him was five feet eight inches tall.O.F. testified that the man with the gun wore a sweater with a hood and what he believed to be gray sweatpants.

At 12:26 p.m., police received a 911 call reporting the robbery.Officer Keith Hughes arrived at the location of the robbery and was contacted by an area resident who handed him a note written by a neighbor who was frightened and did not want to be identified.The note pertained to a vehicle, and stated: " ‘Dark green,’‘Paper plate on the front, Hayes Auto Sales, red background, white lettering.’ "³The person who wrote the note told the woman who delivered it to Hughes that she had seen two large black males parked in front of her house in the car described in the note.⁴

G.F., O.F.’s wife, received a call from her father, who worked with O.F.Her father told her about the robbery, including the fact that G.F.’s phone had been stolen.G.F. tracked O.F.’s phone using a mobile phone app.When she began tracking the phone, the app indicated the phone's location was on a freeway.She tracked the phone to a liquor store on Florin Road.The phone went from the liquor store to Burlington Coat Factory on Florin Road.G.F. relayed this information to her father who was with police officers.She testified she tracked the phone for approximately an hour before it stopped at the Burlington Coat factory.⁵

Officer Frank Reyes arrived at Burlington Coat Factory at approximately 1:20 p.m. and located a green Acura with paper plates matching the description that had been broadcasted.Meanwhile, Sergeant Matthew Young arrived and instructed officers to establish a perimeter.

At 1:28 p.m., Reyes saw Brown approaching the green Acura from the store.He was talking on a cell phone.When Brown was about a car length from the Acura, he saw Reyes.He then turned around and walked back toward the store.He went back inside the store and when he reemerged, he was detained.He was sweating profusely, "[k]ind of frantic," and very nervous.

Subsequently, Young saw Clark come out of the store and look around in all directions.By this time, there were uniformed officers throughout the parking lot.Clark saw that officers were detaining Brown, turned around, and went back into the store.Detective Marcel Loriaux went into the store where he detained Clark in the area of the cash registers.In searching Clark, Loriaux found some currency and J.R.’s cell phone.

Loriaux viewed surveillance video at Burlington Coat Factory.On the video, Loriaux saw Brown enter the store first, wearing a red shirt.Approximately 10 seconds later, Clark came in, bare-chested, putting on a white T-shirt.⁶

Young searched Brown and found car keys which matched the green Acura.The car was registered to Brown.Young and Reyes searched the Acura.Therein, they found G.N.’s California...