People v. Robinson, A118314 (Cal. App. 7/1/2008)
| Decision Date | 01 July 2008 |
| Docket Number | A118314 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. BRUCE ALAN ROBINSON, Defendant and Appellant. |
Appeal from the Solano County, Super. Ct. No. VCR185773.
Defendant was convicted following a jury trial of two counts of second degree burglary (Pen. Code, § 459), two counts of petty theft with a prior conviction (Pen. Code, § 666), and two counts of grand theft (Pen. Code, § 487, subd. (a)). The trial court found that defendant served two prior prison terms (§ 667.5, subd. (b)), and committed offenses while out of custody on bail on a felony (Pen. Code, § 12022.1). He was sentenced to an aggregate state prison term of four years eight months.
In this appeal defendant objects to the failure of the trial court to sever trial of the charges, claims that his right to confrontation was violated by a restriction placed on cross-examination of a witness, and challenges the imposition of a consecutive sentence based on facts not found by the jury. We conclude that consolidation of the charges was not an abuse of discretion, defendant's right to cross-examination was not abridged, and the imposition of a consecutive sentence was proper. We therefore affirm the judgment.
On the afternoon of December 13, 2005, while Lucia Rodriguez was working at the Raley's supermarket on Sonoma Boulevard in Vallejo, she observed a man she positively identified at trial as defendant walk quickly out of the store with a shopping cart full of Similac baby formula.2 Rodriguez noticed that the baby formula was not packaged, so she followed defendant out of the store, believing he "was stealing it." Rodriguez yelled at defendant to return the merchandise, but he kept going. When she asked him again, he turned the shopping cart over to her. Inside the cart were 40 cans of baby formula and bags of diapers, with a total value of around $700. Defendant left in a vehicle which was occupied by at least one other person.
Mark Inhofer, another Raley's employee, testified that after being alerted by Rodriguez he also saw an "African American" man outside the store pushing a cart filled with diapers and baby formula. Inhofer heard Rodriguez tell the man to "Stop," then watched as the man gave the cart to Rodriguez and ran to a car. He copied the license plate number of the vehicle, which he subsequently gave to a police officer.
When the police arrived, Rodriguez partially described the clothing the man was wearing: a blue hooded sweatshirt and a white T-shirt. She could not describe his pants or shoes. Rodriguez told the police she was not sure she would be able to identify the man, since she was looking primarily at his body rather than his face during the incident. She thought the man looked like he was "in his late 20's."3
A vehicle with a license plate number that matched the one given by Inhofer was stopped by a Vallejo police officer "some time" in December of 2005. Defendant was an occupant of the vehicle. The investigating officer then compiled two photo lineups, one of which contained defendant's photograph.4 The lineups were displayed to Rodriguez and Inhofer on February 13 and 14, 2006. Rodriguez identified defendant's photo, number four, in the first lineup by circling it. She did not identify any photographs in the second lineup. Inhofer circled a photograph he thought "was the person [he] saw," but it was not defendant's photo.5 Inhofer was shown the same photo lineups the next day, and again he made no identification of defendant.
On August 24, 2006, at around 10:30 p.m., James Wagar, the closing manager of the Safeway on Robles Drive in Vallejo, was informed by another employee that "people were walking" out of the store with grocery carts. Wagar observed two "African-American males" leave the store, each one with a cart full of items that were not bagged. Wagar walked out of the store and followed the men to a U-Haul truck. The man in front dumped the contents of one cart into the U-Haul, and entered the truck. Wagar told the "gentleman in the rear" that he "could not leave with those items." The man warned Wagar not to "run up" on him, so Wagar backed away and called the Vallejo police. The man then dumped the merchandise of his cart into the U-Haul, and the two men drove away. Wagar did not make an identification of either of the two men.
Darryl McAllister, an off-duty police captain, was in the Safeway parking lot when he heard a "commotion" and observed a "person pushing a shopping cart out of the store being followed" by a Safeway employee. The employee was attempting to get the person pushing the cart to stop, but the person shouted expletives and yelled at him to "back off." The person pushing the cart proceeded quickly to the rear of a U-Haul van. After McAllister heard "things being thrown or dumped" into the back of the U-Haul, the man got into the driver's seat and began to drive out of the parking lot. McAllister testified that the person he had seen pushing the shopping cart and then driving the vehicle was defendant. Another "African-American male" was in the passenger seat.
McAllister followed the U-Haul out of the parking lot, onto Highway 780, then Highway 80 heading west to the Powell Street exit in Emeryville. He never lost sight of the vehicle. The Highway Patrol stopped the U-Haul on Powell Street in response to the report of a "robbery from a Safeway store in Vallejo." Two "Black males" were inside the detained vehicle: defendant, and a man identified as Carl Collier. When McAllister looked inside the U-Haul he saw items that appeared to be from the shopping cart he previously observed in the parking lot: baby formula, diapers and other grocery store merchandise. The total value of the merchandise retrieved from the U-Haul van was $2,288.70.
The trial court granted the prosecution's motion to consolidate the charges from the two incidents, then denied defendant's motion for severance. Defendant complains that the court erred by joining the "relatively weaker case," the "Safeway incident" in which he was merely seen "waiting in the U-Haul truck," with the unrelated "stronger case" of the "Raley's attempted theft." He adds that the Safeway incident was more inflammatory, as it included a threat of harm to one of the employees, and the two cases had no common witnesses. Defendant also maintains that "there was no substantial cross-admissibility of evidence" in the two cases. The result of the consolidation, asserts defendant, was a "gross unfairness" that occurred when the jury considered all of the evidence in the aggregate at a joint trial.
"Joinder and severance of different criminal charges against the same defendant are governed by [Penal Code] section 954, which states that an `accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.'" (People v. Maury (2003) 30 Cal.4th 342, 391.) As defendant acknowledges, all of the charged crimes were the "same class" of theft offenses, and thus under Penal Code section 954 joinder was proper "unless a clear showing of potential prejudice was made." (People v. Jenkins (2000) 22 Cal.4th 900, 947.) "When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant's severance motion." (People v. Mendoza (2000) 24 Cal.4th 130, 160.) Penal Code section 1098 (People v. Sullivan (2007) 151 Cal.App.4th 524, 557.) "` " (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120.)"
" (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) "The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case." (People v. Mendoza, supra, 24 Cal.4th 130, 161; see also People v. Gutierrez, supra, 28 Cal.4th 1083, 1120.)
(People v. Jenkins, supra, 22 Cal.4th 900, 947.) "In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling." (People v. Mendoza, supra, 24 Cal.4th 130, 161.)
We commence our review with an examination of the cross-admissibility of...
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