Filed 2/13/15 P. v. Robinson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050398

         v.                                                            (Super. Ct. No. FVA1201183)

MONTEL LAMARR ROBINSON,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
Ingrid Adamson Uhler, Judge. Affirmed as modified.
                   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, Julie L. Garland, Assistant Attorney General, Steve Oetting, Tami
Falkenstein Hennick and Collette Cavalier, Deputy Attorneys General, for Plaintiff and
Respondent.
              A jury convicted defendant Montel Lamarr Robinson of two counts of
                           1                                                             2
robbery (Pen. Code, § 211) and one count of grand theft of a person (§ 487, subd. (c))
The court sentenced him to four years eight months in prison.
              On appeal defendant contends (1) insufficient evidence shows he aided and
abetted grand theft of a person; (2) the court’s multi-tasking was improper; (3) the court
abused its discretion by allowing him to be impeached with a petty theft infraction; and
(4) the court improperly ordered him to pay victim restitution for the robbery charge of
which he was acquitted (count 1). As to this last contention, we agree. But any error in
the admission of impeachment evidence was harmless. Accordingly, with the exception
of the restitution order for count 1, we affirm the judgment.


                                          FACTS


Robbery of Monica Quintero
              On the morning of May 13, 2012, Monica Quintero noticed two men
together when she came out of a grocery store. Quintero was with her daughter and her
cousin, Maria Munoz. As Quintero pushed a grocery cart toward her van, a man grabbed
her from behind, put his hand on her neck, and took a pendant bearing her name from the
gold chain she was wearing. He then came in front of her and grabbed the chain.
Because Quintero held onto the chain, the man was only able to take part of it. The man
left running, along with the other man.




1
              All statutory references are to the Penal Code unless otherwise stated.
2
              The information charged defendant with four counts of robbery, but the
jury acquitted him of the robbery charge in count 1 and the court reduced the robbery
charge in count 3 to the lesser included offense of grand theft of a person.

                                             2
               When shown photographs later, Quintero was unable to identify anyone as
the man who took her chain. She described him to the police as a young black man about
five feet eight inches tall.
               Quintero’s cousin Munoz identified defendant as the robber from a
photographic lineup. Munoz was unable to identify him with 100 percent certainty in
court, but testified defendant looked somewhat like the robber.


Robbery of Jose Aguilar
               About three weeks later, Jose Aguilar and a coworker, who were
maintenance workers at an apartment complex, stood near a truck looking at a roll of
wire. Aguilar noticed a young man walking their way, but thought nothing of it, and
turned back to inspecting the wire.
               Suddenly, someone grabbed Aguilar’s collar, slammed him to the ground,
and tore off his “real thick, long” necklace. Aguilar fell to the ground. His coworker
chased the suspect over a block wall, then down the street. A vehicle momentarily
blocked the coworker’s view, then he saw the suspect and his partner come out of a
driveway entrance in a compact vehicle.
               At trial, Aguilar identified defendant as the man who took his chain. He
had also previously identified him from a photographic lineup. Aguilar told the
investigating officer that the man who took his chain was a black male in his 20’s and
about six feet tall.
               At trial, Aguilar’s coworker testified he did not see the suspect in court.


Grand Theft of Patricia Castillo
               Less than two weeks later, Patricia Castillo parked directly in front of a Big
Lots store. Nine months pregnant, she was with her daughters, ages nine and six. She
wore a thick gold chain which held her two wedding rings and a pendant.

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              Two young men were sitting right next to each other on the planter in front
of the Big Lots store. They were talking to each other and “looked like they were just
kicking back, sitting there waiting for somebody.” Castillo’s oldest daughter got out of
the vehicle’s passenger side, while Castillo held her younger daughter’s hand and walked
around the front of the vehicle.
              One man looked at Castillo and she smiled at him. He snatched her chain
and ran to the apartments on Jackson Street.
              The other man stood up, walked away, and turned onto a street toward the
Jackson Street apartments. Castillo screamed, “You’re with him.” The man responded,
“No, I’m not,” and “kept walking, looking down at his phone, looking up, looking
around,” and “shaking his head saying that he wasn’t with him or motioning no.”
              Castillo identified defendant’s photograph from a photographic lineup as
the man who walked away. At trial she testified he was around 5 feet 11 inches tall.


Robbery of Jessica Calix
              Less than two months later, Jessica Calix left her home and walked toward
a vehicle where her husband was waiting. She wore a thick chain with a gold pendant
with diamonds.
              Two men walked on the sidewalk toward her. As they came closer, one
man walked in front of her and grabbed at her necklace. He ran away, carrying the
necklace. The other man ran with him.
              At trial, Calix identified defendant as the person who grabbed her necklace.
Calix testified she had described him to the police as a black male around five feet six
inches tall. She had also previously identified defendant from a photographic lineup.




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Cash for Gold Store
               Maria Sanchez worked as a gold buyer at the Cash for Gold store. She
testified defendant came into the store between three to four times a week. Sometimes he
had gold to sell, such as rings (sometimes with diamonds), chains, earrings, and pendants
(often religious pendants with female Mexican names). Other times he had no gold to
sell, but accompanied another person.


Police Interview
               A detective testified defendant is six feet two inches tall. In a police
interview, defendant had first denied ever being in the Cash for Gold store, but had later
stated he might have been applying for a job.


Defense Case
               Defendant testified on his own behalf. During direct examination, he
admitted he had pled guilty to a petty theft infraction in 2011. He denied having anything
to do with any of the robberies. He denied ever being in the Cash for Gold store.


                                        DISCUSSION


Substantial Evidence Supports Defendant’s Conviction for Grand Theft of a Person
               Defendant contends insufficient evidence supports the finding he aided and
abetted the grand theft of Castillo. In considering his contention, we review the whole
record in the light most favorable to the judgment “‘to determine whether it discloses
substantial evidence — that is, evidence which is reasonable, credible, and of solid value
— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)



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              An aider and abetter acts with knowledge of the perpetrator’s unlawful
purpose and with the intent to facilitate the crime, and directly or indirectly aids,
promotes, or encourages the commission of the offense. (People v. Beeman (1984) 35
Cal.3d 547, 561; People v. Villa (1957) 156 Cal.App.2d 128, 133-134.) Whether a
person who was present at the time and place of a crime was an aider and abettor is a
factual question “for the jury to decide from all the circumstances proved [citations].”
(People v. Wilson (1928) 93 Cal.App. 632, 636.) “Mere presence at the scene of a crime
which does not itself assist its commission or mere knowledge that a crime is being
committed and the failure to prevent it does not amount to aiding and abetting.” (In re
Michael T. (1978) 84 Cal.App.3d 907, 911.) The jury may, however, “consider [these
factors] in assessing a defendant’s criminal responsibility.” (People v. Nguyen (1993) 21
Cal.App.4th 518, 530.) For example, an aider and abettor’s presence with the perpetrator
may serve “to divert any suspicion as to their purpose,” or allow the aider and abettor “to
give warning of the approach of anyone seeking to interfere with their enterprise” or to
help the perpetrator escape. (Wilson, at p. 636.) Any one of these purposes may be
sufficient to show a defendant aided and abetted the commission of a robbery. (Ibid.)
Other factors which the fact finder may consider are the defendant’s conduct before and
after the offense, including flight from the crime scene. (In re Lynette G. (1976) 54
Cal.App.3d 1087, 1094-1095.)
              Substantial evidence supports the jury’s finding defendant aided and
abetted the grand theft of Castillo’s necklace. His presence at the crime scene allowed
him to look out for interference and also diverted suspicion from his partner and him —
Castillo believed they were conversing and “kicking back,” and she even smiled at
defendant. Immediately after the crime, he left the scene and walked in the same
direction as the thief. The jury could reasonably infer defendant’s actions under these
circumstances shared a common scheme with the other robberies in which he and his
partner were involved. This is sufficient evidence defendant aided and abetted the crime.

                                              6
Defendant’s Complaint About the Court’s “Multi-tasking” is not Cognizable on Appeal
              At the close of the People’s case and before defendant testified in his own
defense, the judge informed the jury she was “multi-tasking” and trying to do research for
a “huge motion” in an upcoming death penalty case, but had been “listening to all of the
proceedings” and was capable of doing that. She assured the jury she “could completely
pay attention to the trial as [she was] working up [there].” She reiterated, “I am paying
attention, but I’m also getting my other work done.”
              Defendant contends the court’s announcement it was multi-tasking
trivialized his case to the jury. He also contends the court’s timing, by announcing its
multi-tasking immediately before he testified, denigrated the defense in the jury’s eyes.
He additionally asserts the court’s multi-tasking “was the equivalent of having no judge
at all” and constituted structural error.
              As a threshold matter, defendant has forfeited this claim by failing to object
below. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; see
Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 478.)
Defendant asserts an objection would have been futile, but this assertion is speculative.
Alternatively, he contends there was no tactical reason for his trial counsel’s failure to
object and he therefore received ineffective assistance. But, on the other hand, he asserts
his trial counsel did not object because an objection would have “further embed[ed] the
issue in the minds of the jurors”; thus, defendant himself posits a tactical reason for his
counsel’s decision.
              Even addressing the issue on the merits, although we agree that multi-
tasking by courts should not become the norm, we conclude in this case it did not
constitute judicial misconduct or error. Defendant does not cite any particular instance in
the record where the court’s attention deviated from his trial. The court told the jury that
it had been listening while multi-tasking “to all of the proceedings,” not simply during
defendant’s testimony. Furthermore, the court’s admonitions and rulings during


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defendant’s testimony revealed she was paying attention. In addition, we “presume the
official duty has been regularly performed [citation], and this presumption applies to the
actions of trial judges . . . .” (People v. Duran (2002) 97 Cal.App.4th 1448, 1462, fn. 5.)
Finally, the judge instructed the jury, “Do not take anything I said or did during the trial
as an indication of what I think about the facts, the witnesses, or what your verdict should
be.” Jurors are presumed to have followed the court’s instructions. (People v. Sanchez
(2001) 26 Cal.4th 834, 852.)


Defendant Was Not Prejudiced by the Court’s Ruling He Could Be Impeached with an
Infraction
              Defendant contends the court abused its discretion by ruling he could be
impeached with an infraction. The record contains only the following information on the
infraction. In 2011, defendant was arrested for second degree commercial burglary.
While defendant was in custody, the offense was reduced to a petty theft infraction
pursuant to a plea bargain agreement and defendant pleaded guilty to the infraction.
              Prior to the instant trial, defense counsel moved to exclude evidence of
defendant’s petty theft infraction for impeachment purposes should he choose to testify.
The court’s initial indicated ruling was to allow the prosecution to impeach defendant
with the infraction because it is a crime of moral turpitude. But the court stated it would
research (1) whether any case law prohibited the court from doing so absent a felony or
misdemeanor conviction, and (2) whether People v. Wheeler (1992) 4 Cal.4th 284
(Wheeler) would require the People to call witnesses to prove the underlying misconduct.
After completing its research and finding no case on point, the court ruled defendant
could be impeached with “that petty theft as an infraction” because courts look to the
conduct, not to the nature of the conviction, and because the infraction was reduced from
a second degree commercial burglary pursuant to a plea bargain agreement.




                                              8
               At the outset of defense counsel’s direct examination of defendant, the
following colloquy ensued:
“Q             Mr. Robinson, um, let’s get something out of the way real quick: On
September 22nd, 2011 —
A              Yes, sir?
Q              — you were involved in an infraction petty theft;
is that correct?
A              Yes, sir.
Q              You pled guilty to that; is that right?
A              Yes, sir.”
               As defendant acknowledges, the “prosecutor did not cross-examine [him]
about this conviction or the underlying conduct, nor offer an official record of the
conviction.” The prosecutor briefly mentioned the conviction in her rebuttal closing
statement in the context of her discussion of many other factors relating to credibility:
“What are some factors you could consider in deciding whether somebody is credible or
not? None of these victims or witnesses had a motive to lie. [Defense counsel] tells you
that all you have is the unrefuted testimony of the defendant that he never went into that
Cash For Gold [store]. Unrefuted testimony of an admitted liar. He testified. His
credibility is just as much at issue as anybody else’s. On that stand he admitted he lied to
Detective Mills about . . . his whereabouts on one of the cases. He knew they were
looking for him. They wanted to question him. He told them he was at somebody’s
wedding, then admitted to Detective Mills, ‘No. I lied about that. I wasn’t at the
wedding.’ He admitted to suffering an infraction conviction for a theft offense. These
are all things you could consider.” The prosecutor then pointed out that defendant’s alibi
for two of the charges against him involved his being with his mother or his grandmother,
yet neither of them came in and testified.



                                               9
              Defendant is correct that a nonfelony “conviction . . . is inadmissible
hearsay when offered as evidence that a witness committed misconduct bearing on
credibility.” (Wheeler, supra, 4 Cal.4th at p. 297.) But a “witness may be impeached
with any prior conduct involving moral turpitude whether or not it resulted in a felony
conviction, subject to the trial court’s exercise of discretion under Evidence Code section
352.” (People v. Clark (2011) 52 Cal.4th 856, 931, italics added.)
              Defendant asserts infraction misconduct (as opposed to misdemeanor
misconduct, which was the specific subject in Wheeler, supra, 4 Cal.4th at p. 288) should
not be admitted for impeachment purposes. But Wheeler made clear that section 28,
subdivision (d), “requires the admission in criminal cases of all ‘relevant’ proffered
evidence unless exclusion is allowed or required by” specified evidentiary rules.
(Wheeler, at p. 292.)
              Defendant complains he was impeached with the conviction rather than the
underlying misconduct, but his own trial counsel introduced evidence of the conviction.
Although defendant contends his trial counsel rendered ineffective assistance by doing
so, the attorney may have had tactical reasons for preemptively focusing on the
conviction rather than the underlying conduct. For example, defendant’s admission of
the petty theft infraction might have been less damaging to his credibility than a
description of the underlying conduct would have been. (Strickland v. Washington
(1984) 466 U.S. 668, 689 [defendant must overcome presumption the challenged action
“might be considered sound trial strategy”].)




                                            10
               Defendant contends the court itself ruled the prosecution could impeach
him with evidence of the infraction conviction as opposed to his conduct. The court’s
oral ruling is ambiguous on this score, but stressed that the case law focuses on a
defendant’s conduct, not the nature of the conviction. Defense counsel did not ask for a
clarification of the ruling.
               Defendant also contends the court was required to conduct an Evidence
Code section 352 evaluation before concluding he could be impeached with the petty
theft infraction. A trial court has broad latitude under Evidence Code section 352 to
exclude impeachment evidence. (Wheeler, supra, 4 Cal.4th at p. 296.) With respect to
nonfelony conduct, “courts may and should consider with particular care whether the
admission of [impeachment] evidence might involve undue time, confusion, or prejudice
which outweighs its probative value.” (Id. at pp. 296-297.) It is unclear from the record
whether defense counsel moved for exclusion of the evidence under Evidence Code
section 352. Nor was the court required to “expressly cite Evidence Code section 352 in
its ruling . . . .” (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1845.)
               In any event, it is not reasonably probable the verdict would have been
more favorable to defendant even if the court had explicitly considered Evidence Code
section 352. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Gurule (2002) 28
Cal.4th 557, 609 [trial court’s error in admitting defendant’s prior convictions for
impeachment purposes was harmless under Watson].) The court’s reasoning for its ruling
was sound and was explicitly based in part on the fact the infraction had been reduced
from a second degree commercial burglary charge (thus arguably incorporating a
probative versus prejudice evaluation). Moreover, the evidence against defendant was
strong, and the crimes were similar in nature and close in time. The credibility of his
alibis and denials was weakened by his admission that he had lied during a police
interview, by his failure to call any witnesses to corroborate his alibis, by the evidence
that the victims of the crimes of which he was convicted had identified him as a

                                             11
participant, and by Sanchez’s testimony he was a frequent visitor to the Cash for Gold
store. Given this overwhelming damage to his credibility, it is unlikely that his bare
admission he pleaded guilty to a petty theft infraction, and the prosecutor’s mention of it
in her closing argument, altered the jury’s assessment of the believability of his
testimony.


Restitution to Quintero was Unauthorized
              The jury acquitted defendant of the robbery of Quintero (count 1).
Nonetheless, the court ordered defendant to pay a victim restitution fine for the crime.
This was error, as the Attorney General concedes.
              A sentence is unauthorized if it “‘could not lawfully be imposed under any
circumstance in the particular case.’” (People v. Percelle (2005) 126 Cal.App.4th 164,
179.) A defendant may raise the issue for the first time on appeal. (Ibid.)
              Under section 1202.4, subdivision (a)(1), it “is the intent of the Legislature
that a victim of crime who incurs an economic loss as a result of the commission of a
crime shall receive restitution directly from a defendant convicted of that crime.” “[I]n
the nonprobation context, a restitution order is not authorized where the defendant’s only
relationship to the victim’s loss is by way of a crime of which the defendant was
acquitted.” (People v. Percelle, supra, 126 Cal.App.4th at p. 180.)




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                                      DISPOSITION


              The judgment is modified by striking the $220 victim restitution order as to
count 1. In all other respects, the judgment is affirmed. The abstract of judgment does
not reflect the imposition of this restitution order; thus the abstract of judgment does not
need to be corrected.




                                                  IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.




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