Filed 2/19/15 P. v. Clark CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C074210

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM037006)

         v.

EMILY SUZANNE CLARK,

                   Defendant and Appellant.




         A jury found defendant Emily Clark guilty of second degree robbery of a Dollar
Tree store (Pen. Code, § 211)1 and found true the allegation that she personally used a
firearm (§ 12022.53, subd. (b).) Sentenced to 13 years in prison, she appeals. She
contends the trial court erred in admitting evidence that she was a suspect in an unrelated




1   Further undesignated statutory references are to the Penal Code.

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series of bank robberies, and insufficient evidence supports the order to pay the cost of
her public defender. We strike the order to pay and otherwise affirm.
                                           FACTS
          On the night of September 3, 2012, Angelica Martinez was working the cash
register at the Dollar Tree store in Chico. She saw a thin woman enter the store, wearing
a black tank top, jeans, and a wig, and carrying a large purse. The woman (later
identified as defendant), selected an energy drink, then approached the register and
handed Martinez two dollars.
          As Martinez was making change, defendant pulled a gun from her purse. She told
Martinez to give her the money. Martinez did not know if the gun was real and asked,
“Are you serious?” Defendant replied “Yes. I don’t want to have to hurt you. Now put
the money in the bag.” Defendant pulled out a crumpled plastic bag from her purse and
Martinez put the money in the bag. Defendant took it and left. Martinez called the
police.
          Martinez had familiarity with guns as her uncle was a gun collector. Defendant’s
gun had a squared muzzle at the base, but a rounded barrel like a revolver. To Martinez,
it looked like “someone had married those two things together, a revolver and a regular
firearm,” which struck her as unusual.
          The Dollar Tree store had surveillance cameras; one was trained on the cash
register and captured the robbery on video.
          On September 13, 2012, a teller at U.S. Bank in Chico saw two suspicious people
enter the bank. The man wore a red baseball cap and sunglasses, and the woman had an
obvious black, choppy wig, a black tank top, sunglasses, and a beige purse. The teller
had received information that a similar looking man had robbed the Colusa branch of the
bank. She immediately notified the branch manager by instant messaging.
          Sally Mendez, the branch manager, received the message and went to
acknowledge the suspicious customers, asking, “So what’s going on?” The man

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responded, but the woman did not; she was writing something at the deposit kiosk. The
customers left and Mendez called the police.
       Officer Scott Harris was on patrol that day. That morning at the police briefing he
had learned of a BOLO (Be On The Lookout) flyer from the FBI about a series of bank
robberies. When he saw the pending call from the U.S. Bank, he pulled up the
description of the suspicious customers. He saw the description was similar to that in the
FBI BOLO flyer. The flyer had listed the vehicle as a tan Suburban. He saw a tan
Yukon, a similar vehicle, near the bank. The female driver was wearing dark glasses and
an obvious wig. When the Yukon pulled into a parking lot, he activated his lights and
waited for backup. When the male passenger got out of the car, something fell to the
ground. It was a loaded gun.
       Detective James Parrott went to the scene and had Martinez brought there for an
in-field show-up. Martinez identified defendant as the robber; she was 80 to 90 percent
certain. Defendant was the same height, had a similar jaw line, and similar wide hands.
The wig looked the same but it had been chopped off. Martinez identified the distinctive
gun.
       The Yukon was seized and searched. Several items linked to the Dollar Tree
robbery were found inside, including the robber’s tan and brown handbag, coin purse, a
black tank top, and sunglasses. The loaded gun was a Ruger Mark II .22 caliber semi-
automatic that had been modified with a scope on top of the slide. That gun is not
common; its semi-automatic mechanism was internal and it had a thick and unique barrel.
       Defendant presented an alibi defense, claiming she spent the evening and night of
the robbery (Monday, September 3) with a companion on a motorcycle ride. Her alleged
companion, however, had told a defense investigator the day of the ride was Tuesday, not
Monday, which he remembered because he had to work the next day; his days off were
Sunday through Tuesday.



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                                      DISCUSSION
                                             I
                        Admission of Evidence of Bank Robberies
       Defendant contends the trial court erred in admitting evidence that she was a
suspect in a series of unrelated bank robberies. She contends this evidence was
impermissible character evidence, cumulative, time consuming, and prejudicial.
       A. Background
       Prior to trial, the People sought to admit evidence that defendant engaged in
robbing banks with her male accomplice. The People argued the evidence was probative
as to “intent, preparation, plan, knowledge, identity and absence of mistake or accident.”
They wanted to admit evidence of the BOLO flyer from the FBI about the bank
robberies, as well as photographs and teller testimony from U.S. Bank, and a photograph
of the female suspect in a Bank of America robbery.
       The trial court ruled the BOLO flyer and the call from U.S. Bank that suspects
matching the BOLO report had been in the bank were admissible. The court excluded
evidence of other bank robberies with similar perpetrators as too prejudicial. “But
certainly the police could say that there[] [are] ongoing robberies, persons matching her
description but not to the extent where you would bring in separate witnesses for those
robberies.”
       The People filed a motion to reconsider with respect to the exclusion of the
photograph from the Bank of America robbery. The trial court confirmed its ruling.
After a hearing pursuant to Evidence Code section 402 on the BOLO flyer, the court
ruled both witnesses from U.S. Bank could testify, and a redacted copy of the BOLO
flyer would be admitted.
       The trial court gave a limiting instruction on the use of other crimes evidence to
prove identity.



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       B. The Law
       Evidence Code section 1101, subdivision (a) prohibits admission of evidence of a
person's character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion.
Evidence of a defendant’s uncharged misconduct is admissible to prove certain facts,
such as identity, other than criminal disposition. (Evid. Code, § 1101, subd. (b).)
       “For identity to be established, the uncharged misconduct and the charged offense
must share common features that are sufficiently distinctive so as to support the inference
that the same person committed both acts. [Citation.] ‘The pattern and characteristics of
the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]”
(People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).)
       The admissibility of uncharged misconduct “depends on the materiality of the fact
sought to be proved, the tendency of the prior crime to prove the material fact, and the
existence or absence of some other rule requiring exclusion.” (People v. Whisenhunt
(2008) 44 Cal.4th 174, 203.) “Evidence of uncharged offenses ‘is so prejudicial that its
admission requires extremely careful analysis. [Citations.]’ [Citations.]” (Ewoldt,
supra, 7 Cal.4th at p. 404.) Because such evidence has substantial prejudicial effect,
“ ‘uncharged offenses are admissible only if they have substantial probative value.’
[Citation.]” (Ibid., original italics.)
       The admission of evidence under Evidence Code section 1101 is reviewed on
appeal for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.)
       C. Analysis
       While the trial court purported to exclude evidence of the unrelated bank robberies
as unfairly prejudicial given their limited probative value, the court undercut its own
ruling by admitting the BOLO flyer. That flyer contained several pictures of a man and
woman and indicated they were “wanted for multiple robberies in Northern CA.”
Evidence, such as Officer Harris’s testimony, that tied defendant to the BOLO flyer,

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informed the jury that defendant was suspected in a series of bank robberies despite the
trial court’s expressed intention to preclude the jury from considering the unrelated
robberies. As we will explain, this admission of the BOLO flyer, given its limited
probative value and its high risk of unfair prejudice from labeling defendant as a serial
bank robber, was error.
       The BOLO flyer was offered to prove defendant’s identity--the primary issue in
her case, particularly given that defendant offered an alibi defense. The probative value
of the BOLO flyer to prove defendant’s identity as the Dollar Tree robber, however, was
very limited. Most of the photographs on the BOLO flyer showed the male suspect. The
photo of the female was fuzzy and showed she had short dark hair, hair that was shorter
than either that of the robber in the video of the Dollar Tree robbery or defendant’s wig
when apprehended. The woman in the BOLO flyer wore a jacket, obscuring her body
type (thus whether she was thin, like defendant, was not apparent). She carried a
different shoulder bag than did defendant during the Dollar Tree robbery. The male
suspect in the BOLO flyer is holding a gun with a long barrel, which appears longer than
the barrel of the gun recovered on September 13--the gun that Martinez positively
identified as carried during the Dollar Tree robbery. The image on the BOLO flyer is not
clear enough to determine whether the gun had been modified by adding a sight, as was
the Dollar Tree gun. Nor does the BOLO flyer show the base of the gun, which Martinez
described as square.
       Thus, neither the gun nor the woman in the BOLO flyer appears identical or even
substantially similar to the gun and woman in the Dollar Tree robbery, or to the defendant
and the gun found on September 13.
       Given the substantial prejudice, as properly recognized by the trial court, of
suggesting that defendant was a serial bank robber, and the limited probative value of the
BOLO flyer to show defendant was the Dollar Tree robber, the trial court abused its
discretion in admitting the BOLO flyer.

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       D. Harmless Error
       Errors in the admission of uncharged misconduct are assessed under the standard
of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Thomas (2011) 52 Cal.4th
336, 356, fn. 20, citing to People v. Malone (1988) 47 Cal.3d 1, 22.) Under the Watson
standard we determine whether it was “reasonably probable that a result more favorable
to defendant would have resulted” had the uncharged misconduct evidence not been
admitted. (People v. Welch (1999) 20 Cal.4th 701, 750 (Welch).)
       Although defendant contends the admission of this evidence rendered her trial
fundamentally unfair and thus should be reviewed under the harmless-beyond-a-
reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 at page 24, we
disagree. In People v. Albarran (2007) 149 Cal.App.4th 214, a divided panel of another
appellate court held the introduction of “a panoply of incriminating gang evidence,”
including threats to police, the Mexican Mafia, and several unrelated crimes, where there
was nothing inherent in the facts of the charged shooting to suggest any gang motive and
the gang evidence was highly prejudicial, violated defendant’s due process right, and led
to a fundamentally unfair trial. (Id. at pp. 227, 230-232.) In doing so, it applied the
Chapman standard, noting, however, that the case before it “present[ed] one of those rare
and unusual occasions” where the error was of federal constitutional dimension. (Id. at p.
232.) The court explained, “ ‘Only if there are no permissible inferences the jury may
draw from the evidence can its admission violate due process. Even then, the evidence
must “be of such quality as necessarily prevents a fair trial.” [Citations.] Only under
such circumstances can it be inferred that the jury must have used the evidence for an
improper purpose.’ [Citation.]” (Id. at p. 229.)
       This is not a “rare and unusual” case like Albarran. The evidence connecting
defendant to a series of bank robberies was neither as incriminating nor as overwhelming
as the gang evidence in Albarran. Further, it had some probative value, though slight, on
the issue of the identity of the Dollar Tree robber. Defendant points to nothing in the

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admission of the uncharged misconduct evidence in this case that rendered the trial any
different from most other cases in which such evidence has been improperly admitted.
She has not shown the error in admitting the evidence made her trial fundamentally
unfair. We review the error under the Watson standard for harmless error.
       Under the Watson standard we find the error harmless because it was not
“reasonably probable that a result more favorable to defendant would have resulted” had
the uncharged misconduct evidence not been admitted. (Welch, supra, 20 Cal.4th at p.
750.) The evidence tying defendant to the Dollar Tree robbery was compelling. The
robbery was caught on video for the jury to see. Martinez made a strong--80 to 90
percent certain--identification of defendant as the robber. She positively identified the
unusual gun defendant had used in the Dollar Tree robbery, which was recovered from
defendant’s partner-in-crime after defendant was caught with him at the U.S. Bank acting
suspiciously. Clothing, the handbag, and the coin purse shown on the video of the
robbery were found with defendant at the U.S. Bank--only 10 days after the Dollar Tree
robbery. Defendant’s alibi defense was undercut by evidence her companion had told the
investigator he was with defendant on the day before the robbery at issue, rather than the
day of, as she had asserted. Taken together, this was ample evidence of defendant’s guilt.
       Finally, the court gave a limiting instruction that the other crimes evidence was to
be used only to prove identity. We presume the jury followed this instruction. (People v.
Lindberg (2008) 45 Cal.4th 1, 26.)
                                             II
                  Order to Reimburse Cost of Court-Appointed Attorney
       Defendant contends the trial court erred in ordering her to reimburse the costs of
her public defender because the record shows she had no ability to pay those costs.
       A. Background
       The probation report indicated defendant made $2,400 per month as an
accountant, but had no cash or property. She was fully supported by her fiancé. She had

                                             8
a drug problem and spent $7,000-8,000 per month on drugs and gambling. The probation
report concluded defendant was able bodied and had marketable skills, so she should
have the ability to pay fines and fees upon her release from custody. It recommended
various fines and fees, but did not mention the reimbursement of attorney fees.
Defendant submitted a statement of assets, indicating she had no money or property.
       At sentencing, the trial court asked defendant if she was still working. She said
“yeah,” the job was still open, but she was not being paid and was not making any
money. The court ordered restitution payable to Martinez (for missed work) and Dollar
Tree, and various fines and fees. It found defendant had no ability to pay the $736 cost of
the presentence investigation report, but ordered attorney fees of $420 without making
any findings. The court asked if defendant wanted to be heard or have a hearing. Both
defendant and counsel said no.
       B. The Law
       Section 987.8 permits a court to order a defendant to pay the cost of court-
appointed counsel after a hearing to determine if defendant has the ability to pay. “In any
case in which a defendant is provided legal assistance, either through the public defender
or private counsel appointed by the court, upon conclusion of the criminal proceedings in
the trial court, . . . the court may, after notice and a hearing, make a determination of the
present ability of the defendant to pay all or a portion of the cost thereof.” (Id., subd.
(b).) In determining this ability to pay, the court may consider both defendant’s present
financial position and the defendant’s reasonably discernible future financial position,
limited to six months in the future. (Id., subd. (g)(2)(B).) “Unless the court finds unusual
circumstances, a defendant sentenced to state prison shall be determined not to have a
reasonably discernible future financial ability to reimburse the costs of his or her
defense.” (Ibid.)
       The statute sets forth procedural requirements for the statutory imposition of
attorney fees. The court is to make an ability-to-pay determination only after affording

                                              9
defendant notice and a hearing. (§ 987.8, subd. (b).) The court must make an express
finding of unusual circumstances before ordering a state prisoner to reimburse his
attorney. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
       C. Analysis
       The People argue that defendant expressly waived the right to a hearing and has
forfeited the claim of insufficient evidence of the ability to pay by failing to object in the
trial court. Recently, in People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar), our Supreme
Court held the forfeiture rule applied where defendant failed to object to the amount of
counsel fees or to assert the inability to pay in the trial court.
       Defendant contends no objection is required to preserve the issue for appeal, citing
People v. Viray (2005) 134 Cal.App.4th 1186. In Viray, the appellate court held that a
forfeiture to an appellate challenge to an attorney fee reimbursement order cannot
“properly be predicated on the failure of a trial attorney to challenge an order concerning
his own fees,” given the “patent conflict of interest.” (Id. at p. 1215, original italics.) The
People urge us to reject Viray, arguing its reasoning is flawed.
       In Aguilar, our Supreme Court noted the case did not present, “and we therefore
do not address, the question whether a challenge to an order for payment of the cost of
the services of appointed counsel is forfeited when the failure to raise the challenge at
sentencing may be attributable to a conflict of interest on trial counsel's part.” (Aguilar,
supra, 60 Cal.4th at p. 868, fn. 4.) Nor did the case concern the statutory presumption of
section 987.8, subdivision (g)(2)(B) for defendants who are sentenced to prison.
       Here defendant does raise the possibility that the failure to object was due to a
conflict of interest. Because the issue of the applicability of Viray, a ten-year-old case, is
unsettled and a statutory presumption is involved--requiring the trial court to find
“unusual circumstances” to order reimbursement from a state prisoner--we reach the
merits of defendant’s claim.



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       Contrary to the People’s assertion, there was no evidence that defendant had a
present ability to reimburse the costs of her defense. She was not making any money and
had no assets; apparently, she had spent all she earned (and more) on drugs and
gambling. Recognizing defendant’s current inability to pay, the probation report
considered her future ability to pay in connection with the recommended reimbursements.
However, as we have explained, the statute controlling reimbursement of attorney fees
limits that determination to six months into the future. Further, there is a statutory
presumption that because defendant was sentenced to prison, she had no future ability to
pay absent unusual circumstances. The trial court failed to make that finding, and we see
no basis for finding unusual circumstances. The statutory presumption controls;
defendant had no future ability to pay. Because defendant had no ability to pay, based on
either her present or future financial position, the reimbursement order must be stricken.
                                      DISPOSITION
       The order for reimbursement of attorney fees is stricken. In all other respects, the
judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment striking the order and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.



                                                         DUARTE                , J.



We concur:



      BLEASE                , Acting P. J.



      BUTZ                  , J.

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