People v. Faultry, A122829 (Cal. App. 12/21/2009)

• Decision Date: 21 December 2009
• Docket Number: A122829
• Citation: People v. Faultry, A122829 (Cal. App. 12/21/2009), A122829 (Cal. App. Dec 21, 2009)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CHARLES B. FAULTRY, Defendant and Appellant.
• Court: California Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v.CHARLES B. FAULTRY, Defendant and Appellant.

A122829

Court of Appeals of California, First Appellate District, Division One

December 21, 2009

Appeal from the Super. Ct. of the City & County of San FranciscoNo. 199476.

Not to be Published in Official Reports

DONDERO, J.

Defendant was convicted following a jury trial of two counts of first degree robbery (Pen. Code, § 212.5, subd. (a)),¹ three counts of second degree robbery (§ 212.5, subd. (c)), and assault with a firearm (§ 245, subd. (a)(2)), with associated enhancements for personal use of a firearm (§ 12022.53, subd. (b)), personal discharge of a firearm (§ 12022.53, subds. (c), (e)(1)), and personal use of a revolver (§ 12022.5, subd. (a)(1)), in the commission of the offenses.In this appeal he argues that the trial court erred by denying his motion to represent himself at trial, and claims that the jury committed misconduct by conducting an experiment with physical evidence offered at trial.We conclude that the trial court, on this record, improperly denied defendant's timely Faretta² motion, and therefore must reverse the judgment.

STATEMENT OF FACTS

Defendant was convicted of a series of robberies committed in San Francisco within the span of a few days in early November of 2005.³We will separately recite the evidence pertinent to each of the robberies, according to the established standards of appellate review of a judgment of conviction, which require that we view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.(People v. Wilson(2008)44 Cal.4th 758, 806;People v. Ochoa(1993)6 Cal.4th 1199, 1206.)

The Robbery of Said Hasan at the Hilltop Market (Count 5)

At 12:45 p.m. on November 4, 2005, Said Hasan was working in the Hilltop Market he owned on Broderick Street in San Francisco.A man Hasan had never seen before entered the store and "asked for change for $20."The man left the store after Hasan gave him the change he requested, but returned about 15 minutes later.The man approached the counter with a box of cookies in one hand and a small silver revolver in the other.He pointed the gun at Hasan and demanded "all the money" in the cash register.Hasan gave the man $250 in cash from the cash register, along with ATM receipts, food stamps and checks.The man then directed Hasan to the back of the store.After the man left the store Hasan called the police.

Hasan described the robber as "a Black man," between six feet and six feet, three inches tall, 280 to 300 pounds, 28 to 35 years old, wearing a black beanie over half of his face, and a white T-shirt.He viewed a videotape lineup on November 14, 2005, and selected "number 2,"defendant, as "similar to the person, but not 100 percent."Hasan testified at the preliminary hearing in August of 2006, that defendant was "not the guy" who robbed him.At trial, Hasan described defendant as the "same height," but "darker" and "20 pounds heavier" than the robber.He testified: "I cannot say 100 percent, but I have a deep feeling he is not the man who robbed me."

The box of cookies left by the robber on the counter was not touched by anyone until it was processed by a crime scene investigator.A latent fingerprint taken from the cookie box was subsequently identified as a match for defendant's left thumb print.

The Robberies and Assault with a Firearm of Jong Kook Kim and Chung Sook Kim at the Drink Liquor Store (Counts 6 through 8).

Jong Kook Kim(Kim) and his wife Chung Sook Kim owned Drink Liquor, a grocery and liquor store on Second Avenue in San Francisco.Just before 5:00 on the afternoon of November 4, 2005, a large, tall "Black man" appeared in the store, took a Snapple from the refrigerator, and placed it on the counter.He said something that Kim and his wife did not understand, then pulled out a small gun and shot at the floor.Kim told his wife to open the cash register and "give the money" to the man.Mrs. Kim placed all the money from the cash register into a paper bag along with the Snapple, and gave it to the man.The man then walked out of the store, turned left, and headed toward Balboa Street and Third Avenue.

Steven Jue, the owner of an aquarium shop next to Drink Liquor, who was on the street in front of his store talking with a customer, testified that he noticed the "African-American man" walk past him "going westbound" toward Balboa and Third.He described the man as mid-twenties, "five-ten, five-eleven," about 280 pounds, wearing a white T-shirt, black pants, and a black "do-rag on his head."

Kim and his wife followed the man out of the store.They encountered Jue, who characterized them as "very hysterical," and told him they had been robbed.They all watched as the man walked to the corner, then turned around and proceeded to a car parked on the street.Jue testified that the car was a "late '70's Chevy Caprice Classic, bluish-greenish color," with tinted windows and an "out-of-state license plate," the first three numbers of which "were 733."Mrs. Kim asked Jue to remember and "write down" the license number of the car.The man got into the car and drove away.

Kim returned to the store to look for evidence of the gunshot.He discovered a small "piece of metal" on the floor that was not present before the robbery, which he later gave to a police officer.

Kim and his wife subsequently viewed a video lineup: Kim identified defendant as the robber by placing an X on subject number 2; Mrs. Kim "wasn't able to" make an identification.Neither Kim nor his wife identified defendant as the robber at trial, although Mrs. Kim testified that defendant"might be him."Jue identified defendant in the video lineup, at the preliminary hearing, and at trial.

Kim and his wife and Jue were taken to a police vehicle impound yard to separately "look around" and see if they recognized the car driven by the robber.They all recognized and pointed out a blue "80's Chevy Caprice" with an "out-of-state plate" that read 773LSS that had been towed to the impound lot from the Westside Housing Projects on Post and Broderick after defendant's arrest there.When the Caprice was seized the police found a black "do-rag underneath the seat," a small knife under the driver's seat back rest, and "indicia" related to defendant and his home address at 2011 Delta View, Bay Point.

The Robbery of Myles Kilroy(Count 3)

Myles Kilroy was working as a cab driver for Yellow Cab Company when he received a dispatch at 10:15 a.m. on November 7, 2005, for an address on Ingalls Street in the Bayview Hunters Point area near Candlestick Park.When Kilroy reached Ingalls Street he noticed a man running toward the cab.The man got in the right rear passenger seat of the cab, and asked Kilroy to "go down to the next block and hang a right."After Kilroy made two right turns as directed, the man asked him to stop the cab.Kilroy pulled over to the side of the road in front of a residence.He then turned around and realized that the passenger had pulled out a gun and was pointing it at him.The man ordered Kilroy to hand over his money.Kilroy extracted his billfold from his breast pocket and gave it to the man.Kilroy was also ordered to give the man his wallet, cell phone, and car keys, and he did so.The man returned the wallet and cell phone, "saying, `I don't want this shit.'"He then walked away, but as he did so he threw the keys to the cab in the street.

Kilroy described the man who robbed him as "African-American," late 20's to early 30's, a "big guy," at least 200 pounds, who wore a black do-rag tied tightly around his head.Three days later, Kilroy viewed a video lineup.He selected subject number 2, defendant, as someone who strongly resembled the "person who robbed" him, and subject number 5, a person who "lightly resembled the person" Kilroy remembered.Kilroy testified in court that defendant"looks a lot like" the robber; he was "fairly certain" of his identification.

The Robbery of Joel Lipkins(Count 4)

At 10:50 on the morning of November 7, 2005, cab driver Joel Lipkins arrived at an address on Velasco Street in the Sunnydale Projects in San Francisco to pick up a fare.Lipkins discovered "there was no such address," but a minute later heard a man yell, "Pull around the corner.My wife will be out in a minute."The man then got into the back seat of the cab and directed Lipkins around the corner.Lipkins testified that the man was "Black," 30 to 35 years old, about 6 feet tall, and 300 pounds.

After Lipkins drove around the corner the man "pulled out a gun and said, `Give me all your money.'"Lipkins reached in his left side shirt pocket "and gave him all of the money."The man also demanded Lipkins's wallet.Lipkins replied that he did not keep money in his wallet.The man "said, `Okay,' "took the money and got out of the cab.From outside the cab the man told Lipkins, "Give me your keys."Lipkins complied, whereupon the man took the cab keys and threw them down the street.The man then entered an old, maroon or brown "boxy-type car," like an Oldsmobile, Pontiac or Buick, and drove away.

Lipkins viewed a video lineup on November 10, 2005.He placed a mark on "Number 2,"defendant, as the man who robbed him.He identified defendant at the preliminary hearing and again at trial as "the one that did it."He had "no question" of the accuracy of his identifications.Lipkins also identified three photographs taken by the automated "FareView" camera system mounted in his cab: one of himself and the robber, another of just the robber, and a third of the robber "with a gun."Lipkins testified that he was positive the photos were accurate and depicted the man who robbed him the morning of November 7, 2005.

The Arrest of Defendant and the Police Investigation

Defendant was arrested by plain clothes officers of the San...