Filed 5/23/13 P. v. Jackson CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F064563

                   v.                                                    (Super. Ct. No. F11906383)

ROBBIE DELL JACKSON,                                                              OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Rosendo
Peña, Judge.
         Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Amanda
D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Levy, Acting P.J., Cornell, J., and Kane, J.
       A jury convicted appellant, Robbie Dell Jackson, of elder adult abuse (Pen. Code,
§ 368, subd. (b)(1))1 (count 1) and attempting to dissuade a victim (§ 136.1, subd. (a)(2))
(count 2). The jury found that Jackson used a deadly weapon within the meaning of
section 12022, subdivision (b)(1) in committing count 1.
       Jackson admitted having two prior strike convictions. (§§ 667, subd. (b)-(i),
1170.12, subds. (a)-(d)). The trial court sentenced Jackson to an indeterminate term of 25
years to life on count 1 (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) plus a
consecutive determinate one-year term for the weapon enhancement (§ 12022, subd.
(b)(1)). On count 2, the trial court struck Jackson’s prior strike convictions and imposed
a consecutive two-year determinate term. In addition, Jackson was ordered to pay
$10,000 in restitution (§§ 1202.4, subd. (b)).
       Jackson appeals, contending (1) the trial court lessened the prosecution’s burden
of proof and violated his Sixth and Fourteenth Amendment rights by instructing the jury
on CALCRIM 372 (flight and consciousness of guilt); (2) the prosecutor committed
misconduct in his closing argument; (3) the trial court erred in imposing restitution; and
(4) defense counsel was ineffective for not objecting to the prosecutor’s misconduct and
the amount of restitution. We affirm.
                                          FACTS
       On September 5, 2011, 85-year-old Thomas Benton was living with Jackson’s
uncle, Ronnie. In the early afternoon, Jackson went to Ronnie’s house to collect money
he believed Ronnie owed him. Ronnie’s house has an enclosed front porch with a
wrought iron security door. Jackson knocked on the security door. Benton went out onto
the porch and Jackson, ranting and raving, yelled for Benton to let him in. Jackson asked
if Ronnie was there and Benton told him that he was not. Jackson did not believe him so

1      All statutory references are to the Penal Code unless otherwise specified.


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Benton opened the security gate to let him in. Jackson also claimed that Benton owed
him money. Suddenly, Jackson pulled a bat from behind his back and hit Benton with it
in the left arm, causing blood to shoot out. Benton backed up and looked around the
porch. When Jackson noticed he was looking around, he said, “You find something and
pick it up, I’ll kill you.” Then Jackson said to Benton, “If you call the police, I’ll be back
to get you.” Jackson then left, and walked down the street with the bat. Benton went
inside the house to call the police and stop the bleeding.
       Officer Robert Lincoln responded to Benton’s call. While Officer Lincoln was
taking Benton’s statement, the house phone rang. Benton answered the phone and heard
Jackson say, “I didn’t believe you would call the police on me,” “I’m gonna get you,”
and “I’m gonna do some great harm to you.” Benton passed the phone to Officer Lincoln
who heard, “If you have me arrested, I’ll kill you nigger.” Officer Lincoln identified
himself and Jackson hung up.
       Jackson testified he called Benton several times before going to Ronnie’s house on
September 5, 2011. When he got there, Benton “acted kind of crazy” and they argued.
Then Benton swung a bat at him, hitting him in the hand. Jackson took the bat away
from Benton and left the house with it. Jackson denied verbally threatening Benton and
was not aware Benton was injured. Jackson also denied calling and threatening Benton
after the incident.
                                      ARGUMENTS
I.     The Trial Court Properly Instructed the Jury on Flight.
       Jackson contends the flight instruction given by the trial court (CALCRIM No.
372) impermissibly lowered the prosecution’s burden of proof. He also contends there
was insufficient evidence to support giving the flight instruction because he did not run or
flee from the scene.



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       Over Jackson’s objection, the trial court instructed the jury with CALCRIM No.
372 as follows:

       “If the defendant fled or tried to flee immediately after the crime was
       committed, that conduct may show that he was aware of his guilt. If you
       conclude that the defendant fled or tried to flee, it is up to you to decide the
       meaning and importance of that conduct. However, evidence that the
       defendant fled or tried to flee cannot prove guilt by itself.”
       “In general, a flight instruction ‘is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
was motivated by a consciousness of guilt.’ [Citations.] ‘“[F]light requires neither the
physical act of running nor the reaching of a far-away haven. [Citation.] Flight
manifestly does require, however, a purpose to avoid being observed or arrested.”’
[Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
       “To obtain the instruction, the prosecution need not prove the defendant in fact
fled, … only that a jury could find the defendant fled and permissibly infer a
consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41
Cal.4th 313, 328, italics omitted.)
       “On review, we examine the jury instructions as a whole, in light of the trial
record, to determine whether it is reasonably likely the jury understood the challenged
instruction in a way that undermined the presumption of innocence or tended to relieve
the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt.”
(People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
       Here, the record supported the inferences for the flight instruction. According to
Benton, Jackson struck him with the bat and then warned him that he would return to “get
[him]” if he called the police. Jackson then left with the bat, walked away from the
scene, and discarded the bat.




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       On this record, the jury could reasonably infer that Jackson’s immediate departure
after striking Benton, his warning against calling the police, and his disposal of the bat,
reflected consciousness of guilt.
       In any event, any possible error was manifestly harmless. “The instruction did not
assume that flight was established, but instead permitted the jury to make that factual
determination and to decide what weight to accord it.” (People v. Carter (2005) 36
Cal.4th 1114, 1182-1183.) Further, the trial court clarified the applicability of the
instruction by telling the jury:

              “Some of these instructions may not apply depending on your
       findings about the facts of the case. Do not assume just because I give a
       particular instruction that I am suggesting anything about the facts. After
       you have decided what the facts are, follow the instructions that do apply to
       the facts as you find them.”
       Finally, there was overwhelming evidence of Jackson’s guilt. Jackson struck
Benton in the arm causing injury and Officer Lincoln heard Jackson threaten to kill
Benton if he had him arrested.
II.    The Trial Prosecutor did not Commit Misconduct.
       Jackson contends the prosecutor committed misconduct by waiving his initial
closing argument and defense counsel was ineffective for not objecting.
       After the trial court instructed the jury, the prosecutor waived the initial closing
argument. Defense counsel addressed the jury and argued it was a “he-said he-said case.”
She argued that Benton was not believable and that the evidence supported mutual
combat, resulting in injury. On rebuttal, the prosecutor argued that Jackson lied on the
stand and that the evidence supported a conviction on both counts.
       The standards regarding prosecutorial misconduct are well established:

       “‘“‘A prosecutor’s … intemperate behavior violates the federal
       Constitution when it comprises a pattern of misconduct “so egregious that it
       infects the trial with such unfairness as to make the conviction a denial of

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       due process.”’” [Citations.] Conduct by a prosecutor that does not render a
       criminal trial fundamentally unfair is prosecutorial misconduct under state
       law only if it involves “‘“the use of deceptive or reprehensible methods to
       attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]”
       (People v. Smithey (1999) 20 Cal.4th 936, 960.)
       Further, in order to establish a claim of ineffective assistance of counsel, appellant
must demonstrate both that counsel’s performance fell below an objective standard of
reasonableness (Strickland v. Washington (1984) 466 U.S. 668, 687-688) and that there is
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Id. at p. 694.) We need not determine whether
counsel’s performance was deficient if appellant fails to show prejudice. (Id. at p. 697.)
       We conclude the trial prosecutor did not commit misconduct and that defense
counsel was not ineffective for the reasons we now explain.
       The prosecutor has the right to open the closing argument and to close it by
rebuttal argument. (§ 1093, subd. (e).)2 Further, the prosecutor has the right to waive the
initial closing argument while maintaining the right to give a rebuttal argument. (People
v. Martin (1919) 44 Cal.App. 45, 47.)
       Jackson contends that the prosecutor “sandbagged” the defense by waiving the
initial closing argument and then representing Benton as the only one telling the truth.
“This left defense counsel with no opportunity to rebut the prosecutor’s argument with
ample examples of Benton’s mendacity and exaggeration present on this record.”
       The record does not support Jackson’s contention. Defense counsel raised the
issue of credibility in her closing argument. In doing so, she attempted to bolster
Jackson’s defense by attacking Benton’s credibility. She did so by arguing every point

2       Section 1093, subdivision (e) provides in relevant part: “When the evidence is
concluded, unless the case is submitted on either side, or on both sides, without argument,
the district attorney … and counsel for the defendant, may argue the case to the court and
jury; the district attorney … opening the argument and having the right to close.”


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that Jackson now claims she was prevented from arguing in response to the prosecutor’s
rebuttal argument. Thus, Jackson’s prosecutorial misconduct argument must fail.
       Jackson’s ineffective assistance of counsel argument must fail for the same reason.
Since defense counsel argued the points that Jackson contends she was precluded from
arguing, then Jackson did not suffer prejudice and defense counsel was not ineffective
assistance for not objecting to the prosecutor’s waiver of his initial closing argument.
III.   The Trial Court did not Abuse its Discretion in Imposing a Restitution Fine
       of $10,000.
       Jackson contends the trial court erred in imposing a $10,000 restitution fine
without considering his ability to pay and that defense counsel was ineffective for not
objecting to it. Therefore, he argues, the restitution fine must be reduced to $200.
       Former section 1202.4, subdivision (b) provided, “In every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so, and states those
reasons on the record.” At the time of Jackson’s crime against Benton (September 5,
2011), in the case of a felony conviction, the minimum fine was $200, while the
maximum fine was $10,000.3




3      Section 1202.4, subdivision (b)(1) was amended effective January 1, 2012, to
provide: “The restitution fine shall be set at the discretion of the court and commensurate
with the seriousness of the offense, but shall not be less than two hundred forty dollars
($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January
1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than
ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less
than one hundred twenty dollars ($120) starting on January 1, 2012, one hundred forty
dollars ($140) starting on January 1, 2013, and one hundred fifty dollars ($150) starting
on January 1, 2014, and not more than one thousand dollars ($1,000) if the person is
convicted of a misdemeanor.” (Stats. 2011, ch. 358, § 1, p. 3759.)


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       “The amount between $200 and $10,000 is set in the court’s discretion,
‘commensurate with the seriousness of the’ crime of which the accused has been
convicted. (§ 1020.4, subd. (b)(1).) A defendant’s inability to pay is not a compelling
and extraordinary reason to excuse imposition of a section 1202.4, subdivision (b)(1)
restitution fine. (§ 1202.4, subd. (c).) However, a defendant’s ability to pay is
considered, among other factors, in setting the amount of the fine above $200. (§ 1202.4,
subds. (c)-(d).)” (People v. Kramis (2012) 209 Cal.App.4th 346, 350 (Kramis).)
       At the time Jackson committed the present offenses, section 1202.4, subdivision
(d) stated:

       (d) “In setting the amount of the fine pursuant to subdivision (b) in excess
       of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum,
       the court shall consider any relevant factors, including, but not limited to,
       the defendant’s inability to pay, the seriousness and gravity of the offense
       and the circumstances of its commission, any economic gain derived by the
       defendant as a result of the crime, the extent to which any other person
       suffered losses as a result of the crime, and the number of victims involved
       in the crime.… A defendant shall bear the burden of demonstrating his or
       her inability to pay. Express findings by the court as to the factors bearing
       on the amount of the fine shall not be required. A separate hearing for the
       fine shall not be required.” (§ 1202.4, subd. (d).)
       We will not overturn a decision of the trial court in setting the amount of the
restitution fine absent a showing of an abuse of discretion. (People v. Lewis (2009) 46
Cal.4th 1255, 1321.)
       Jackson contends the restitution fine is unauthorized because the trial court did not
consider his ability to pay or other factors that weighed in favor of a lower fine.
Additionally, he contends the trial court violated his due process right by determining the
fine without a jury trial.
       We reject Jackson’s contention he was entitled to a jury trial on the restitution
fine. Where, as here, the trial court exercised its discretion to impose a restitution fine
within a statutory range, a jury verdict is not required. (Kramis, supra, 209 Cal.App.4th

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at pp. 351-352.) Therefore, the trial court’s imposition of the maximum fine of $10,000
under section 1202.4 did not violate Jackson’s right to a jury trial.
       Additionally, Jackson forfeited his claim that the maximum restitution fine was
unauthorized by failing to object at the sentencing hearing. (People v. Nelson (2011) 51
Cal.4th 198, 227.) Nevertheless, it fails on the merits.
       First, Jackson’s contention the court did not consider his ability to pay is baseless.
The statute requires the court to consider it and we presume that it did. Further, Jackson
“points to no evidence in the record supporting his inability to pay, beyond the bare fact
of his impending incarceration. Nor does he identify anything in the record indicating the
trial court breached its duty to consider his ability to pay; as the trial court was not
obligated to make express findings concerning his ability to pay, the absence of any
findings does not demonstrate it failed to consider this factor.” (People v. Gamache
(2010) 48 Cal.4th 347, 409.)
       Second, Jackson contends there are other factors the court is required to consider
that militate against the maximum fine in his case such as a single crime victim and no
economic loss or gain from the crime. Jackson ignores, however, additional factors such
as the seriousness and gravity of the offense and the circumstances of its commission that
support imposition of the maximum fine.
       We conclude on this record the trial court did not abuse its discretion in imposing
the maximum restitution fine. Thus, we further conclude Jackson was not prejudiced by
defense counsel’s failure to object to it.
       We find no error.
                                       DISPOSITION
       The judgment is affirmed.




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