Filed 9/30/15 P. v. Sherard CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B254424

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA406684)
         v.

LAWRENCE SHERARD et al.,

         Defendants and Appellants.




         APPEALS from judgments of the Superior Court of Los Angeles County. Ronald
H. Rose, Judge. Affirmed.


         Buckley & Buckley and Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant Lawrence Sherard.


         Maria Leftwich, under appointment by the Court of Appeal, for Defendant and
Appellant Darryl Ray Mills.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David
E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendants and appellants Darryl Ray Mills (Mills) and Lawrence Sherard
(Sherard) (collectively defendants) appeal from judgments entered after multiple felony
convictions. Mills challenges the joinder of counts 5 and 8 with count 1 for trial, and also
contends: that the trial court abused its discretion in excluding the testimony of the
robbery victim alleged in a dismissed count; that the trial court erred in refusing to give a
requested instruction on theft as a lesser included offense of robbery; that the trial court
violated his constitutional right to represent himself during sentencing; and that
cumulative error requires reversal. Sherard contends that his conviction of attempting to
dissuade a witness was unsupported by substantial evidence, and that count 1 must be
reversed because the victim’s 911 call was inadmissible hearsay that should have been
excluded in its entirety. We find no merit to defendants’ contentions, and affirm the
judgments.
                                     BACKGROUND
       In an amended information, defendants were jointly charged in count 1 with the
second degree robbery of Edwin Hernandez (Hernandez)1 in violation of Penal Code
section 211.2 Mills alone was charged in counts 2, 3, 5, and 8, as follows: carrying a
loaded unregistered handgun in violation of section 25850, subdivision (a) (count 2);
possession of a firearm by a felon in violation of section 29800, subdivision (a)(1)
(count 3); the second degree robberies of Karina Lo (Karina)3 and of Elizabeth Bacher




1       Count 1 alleged that the victim of the robbery was Edwin Hernandez, but he
testified that his name was Edin Hernandez.

2      All further statutory references are to the Penal Code, unless otherwise indicated.

3       As Karina Lo and her sister Cassandra Lo both testified at trial, we refer to the
sisters by their first names to avoid confusion and not out of a lack of respect.


                                              2
(Bacher), in violation of section 211 (counts 5 and 8). In count 13, Sherard was charged
with attempting to dissuade a witness, in violation of section 136.1, subdivision (a)(2).4
       In addition, the amended information alleged that the robbery charged in count 1
was committed for the benefit of a criminal street gang within the meaning of section
186.22, subdivision (b)(1)(C). It was further alleged that Mills had suffered three prior
convictions within the meaning of section 667.5, subdivision (b), and that Sherard had
suffered one prior conviction within the meaning of the “Three Strikes” law (§§ 1170.12,
subd. (b), 667, subd. (b)-(j)) and within the meaning of section 667, subdivision (a)(1) as
well as three prior convictions within the meaning of section 667.5, subdivision (b).
       A jury found both defendants guilty of count 1 as charged, and found true the gang
allegation. Mills was found guilty of counts 2, 3, 5, and 8, as charged, and Sherard was
found guilty of count 13 as charged. In a bifurcated court trial the court found true two of
the prior convictions alleged as to Mills for purposes of section 667.5, subdivision (b).
With regard to Sherard, the court found true the three prior convictions as alleged.
       On February 14, 2014, the trial court sentenced Sherard to a total term of 12 years
four months in prison, and sentenced Mills to a total prison term of 17 years. Sherard’s
sentence was comprised of the middle term of three years as to count 1, doubled to six
years as a second strike, plus five years pursuant to section 667, subdivision (a), and as to
count 13, a consecutive one-third middle term doubled to 16 months as a second strike.
The trial court imposed and stayed two one-year enhancements under section 667.5,
subdivision (b), as well as the 10-year gang enhancement under section 186.22,
subdivision (b)(1)(C). The trial court sentenced Mills to the middle term of three years as
to count 1, plus a gang enhancement of 10 years, and two one-year prison prior
enhancements. The court imposed a concurrent three-year term as to count 2, the high
term of three years as to count 3, which the court stayed pursuant to section 654, and a
consecutive one-year term as to each of counts 5, and 8, representing one-third the middle

4      In counts 7, 9, 10, 11, and 12, Mills was charged with second degree robbery,
identity theft, and second degree commercial burglary. These counts were dismissed
before trial.

                                              3
term of three years. Both defendants were ordered to pay mandatory fines and fees, and
Sherard received 451 days of presentence custody credits, while Mills received 437 days.
       Defendants filed timely notices of appeal.
Prosecution evidence
       Hernandez robbery
       On January 2, 2013, around 7:30 p.m., Hernandez went to a liquor store near his
home. While he was paying for his purchase a man he later identified as Mills,
approached and asked where Hernandez was from. Hernandez understood Mills to be
asking what gang he belonged to, and replied “I don’t gangbang.” Hernandez was
frightened of gangs and felt threatened and intimidated by Mills’s question. As he
walked outside the store Hernandez encountered Mills with another a man, whom
Hernandez later identified as Sherard. Hernandez thought Sherard said “West Side” and
something else as he pushed Hernandez and then punched him in the face and back,
hurting his back and causing his cheek to swell. Hernandez thought they were trying to
kill him “or something.” Mills then went behind Hernandez and demanded Hernandez’s
cell phone and wallet as Sherard stood facing Hernandez. There was something under
Mills’s shirt that Hernandez thought was a gun. Hernandez saw Mills place his hand
under his shirt in that area. Once Hernandez handed over his wallet, Sherard told him to
“get the fuck out of here,” and walked away. Mills remained next to Hernandez and
searched through his pockets. Hernandez offered the liquor he had just bought, but Mills
did not take it. From the time of the first punch to the pocket search, the incident lasted
about 10 seconds. Mills then walked away and Hernandez walked home.
       Hernandez called 911 after a friend arrived and persuaded him to call the police
about 1:30 a.m. The 911 call was played for the jury. Hernandez gave the 911 operator
descriptions of the assailants and said that there had been a third man and a woman with
them, in a van.
       The liquor store surveillance video was also played for the jury. Hernandez
identified images of Sherard and Mills greeting each other while Hernandez was inside;
of Sherard inside the store and outside the front door a few minutes later; and of himself


                                              4
and Mills at the register when Mills asked where he was from. The video showed
Hernandez leaving the store and Mills approaching him. While the blows were not
captured on camera, Hernandez could be seen backing up after having been punched.
       Sherard’s courtroom gestures
       Hernandez testified about an incident which took place at the preliminary hearing
several months before trial. After Hernandez had taken the witness stand and before the
first question, Sherard “threatened [him] like doing signals with the punch.” Hernandez
demonstrated by making a fist with his right hand and raising it upward over his chest
with his elbow bent; he then opened his fist enough to point his index finger forward, and
closed it back again into a fist, which he moved back and forth a number of times. As he
made the gestures, Sherard looked at Hernandez and mouthed something. It appeared to
Hernandez that Sherard was mouthing, “I’m gonna fuck you up,” but the words were not
audible. Hernandez felt threatened and frightened, and did not say anything until he
spoke to a detective after giving his testimony; however, he took the witness stand again
during the preliminary hearing, and testified about Sherard’s actions.
       The parties later stipulated that Deputy Sheriff Jason Jones, the bailiff at the
preliminary hearing, was deemed to have testified under oath that Sherard was
handcuffed to his chair by one hand, with the other hand free; that he did not see Sherard
make any gestures toward Hernandez; that he was seated behind Sherard at the bailiff’s
desk; and that the courtroom layout was identical to the trial courtroom.
       Gang evidence
       Los Angeles Police Department (LAPD) Officer Ian O’Brien testified as the
prosecution’s gang expert. His primary assignment focused on the School Yard Crip
gang, the largest and most active gang in his division. The gang’s primary activities were
robbery, burglary, assault with a deadly weapon, weapons violations, and attempted
murder. Officer O’Brien presented certified conviction records of two of its members to
show that the School Yard Crip gang was a criminal street gang. He explained that gang
members elevated their status within the gang and demonstrated their loyalty to the gang
by committing crimes, known as “putting in work” for the gang.


                                              5
       Officer O’Brien had become acquainted with some of the School Yard Crip
members through consensual contact, traffic or pedestrian stops, and arrests. He was
familiar with the gang’s common signs and symbols which were usually seen in tagging,
graffiti, and tattoos. Such markings were used by the gang to identify and claim the
neighborhood as the gang’s territory, and to intimidate residents in order to maintain an
area where the gang could commit crimes without fear of being reported. The liquor
store where Hernandez was robbed was located within the territory of the School Yard
Crip gang.
       Both defendants were members of the School Yard Crip gang. Officer O’Brien
had multiple contacts with Mills during which Mills had admitted his membership in the
gang. Officer O’Brien had also seen him openly associating with other School Yard Crip
gang members. A photograph of Mills was shown to the jury, as Officer O’Brien
explained the meaning of each tattoo. Mills’s known gang monikers were “Snowflake”
and “B.K. Blue” which stood for Blood Killer, and the gang’s color, blue. Sherard, who
had admitted being an active member of the gang to other officers, also had gang-related
tattoos: “S.Y” on his forehead; and “Midtown” on his chin, representing the gang’s
territory. Sherard’s moniker was Porky or Baby Porky.
       In response to a hypothetical question based upon the facts in evidence regarding
the Hernandez robbery, Officer O’Brien gave his opinion that the crime was committed
for the benefit or at the direction of a criminal street gang, and in association with the
gang. He explained that the School Yard Crip gang benefitted from such criminal
activity, as it served to maintain the intimidation and fear in the community, and provided
a steady cash flow to help fellow gang members in prison, to post bail, to purchase
firearms, narcotics, and to pay the other costs of the gang lifestyle.
       Lo robbery
       On January 20, 2013, between 7:00 and 7:30 p.m., Karina and her sister Cassandra
were walking to their car in a very dark area of 8th Street and La Brea Avenue in
Los Angeles, after having left a restaurant. A man in a hoodie approached them, placed
his arm around Karina’s throat, and then struggled with her over the purse that she held


                                              6
by its handle. An object that felt like a gun touched Karina as the man ordered her to
release the purse. Fearing for herself and her sister, Karina let go of the purse. The man
ran off with the purse and Cassandra called the police. Karina later identified Mills as the
robber in a six-pack photographic lineup, and identified him at trial as the same man. She
had described him as having “strong” eyebrows and light skin.
       Cassandra testified that she saw the man grab her sister in a headlock and hold
something against her, as he told her to let go of her purse or he was “gonna pop” her.
Cassandra was unable identify the man at trial, but recalled identifying Mills at the
preliminary hearing and testifying that he resembled the man. Cassandra’s 911 call was
played for the jury. She described the man as Hispanic or white with blond hair,5 and
told the 911 operator that he had threatened her sister with a knife.
       Bacher Robbery
       Later in the same evening as the Lo robbery, Bacher was walking home along
Santa Monica Boulevard in West Hollywood, carrying groceries, when she noticed that a
man was following about 10 paces behind. After she stopped to let the man pass, she
walked behind him until she reached a 7-Eleven store, which she entered. After buying
water, Bacher continued on to Curson Avenue, where she turned and saw the man again.
Although he wore a hood, she saw his face and later identified him as Mills. Bacher saw
two shadows just before Mills grabbed her from behind. Mills then placed her in a bear
hug and pushed her down to the pavement. As she struggled, he grabbed her hair, got on
top of her, and hit her head onto the driveway. Worried that he might be armed, she
handed him her purse which he took and then ran away. One week later Bacher selected
a photograph of Mills from a six photograph display, and identified him as her assailant.
Four or five months later she identified Mills in a live lineup.
       The arrest of Mills
       On the evening of January 31, 2013, LAPD Officer Nicholas Gallego was in his
patrol car with Officer Horta, when he recognized Mills, who was on foot. Officer Horta


5      Evidence of Mills’s hair color at the time of his arrest was not presented at trial.

                                              7
ran a check and determined that Mills had an outstanding arrest warrant, so he got out of
the patrol car and loudly asked Mills to stop. Mills shook his head, said no, and ran east
on Exposition Boulevard, then north on Western Avenue. As both officers gave chase on
foot, Mills reached into his right front waistband, drew out a firearm which he threw to
the ground. Officer Gallego picked it up as he passed. Mills continued to run as both
officers ordered him several times to stop. Finally, Mills surrendered after entering an
alley. Officer Gallego testified that the gun was a loaded .22-caliber semiautomatic and
appeared to be in working order.
Defense evidence
       Psychologist Mitchell Eisen testified as the defense expert on eyewitness memory
and suggestibility. He testified that a traumatic event can interfere with memory, and
explained some other factors that affect memory, such as people’s tendency to fill
memory gaps with inferences, sometimes accurately and sometimes inaccurately. Dr.
Eisen explained why reports given immediately after an event tend to be more detailed
and more accurate than later reports; how details of the event might be lost; how
memories might decline dramatically during the hours or days after the event before
reaching a plateau; and how over time, “post-event information” might affect a memory,
especially if the witness perceived the source of the information as credible.
       Dr. Eisen explained that under the guidelines of the United States Department of
Justice, a photographic lineup including a suspect was required to include five “filler”
photographs that matched the suspect’s general description. If the filler photographs
were an inadequate match, the suspect would be highlighted as the only viable choice,
and this “six-pack” photographic lineup would be considered suggestive. With a fair six-
pack, some witnesses might have an immediate and powerful recognition, while others
might use “relative judgment” and simply choose the one with the most similar features.
Research had shown that a suggestive six-pack might result in the identification of the
same incorrect person by several witnesses. Sometimes photographic lineups were unfair
because the witness might expect or might have been influenced to believe that it
included the perpetrator’s photograph. Sometimes in court or during a live lineup,


                                             8
witnesses have identified the same person whose photograph was previously selected,
merely because the face had become familiar, not necessarily because the witness’s
memory was accurate.
       Dr. Eisen testified that research had also shown that confidence in an identification
was not a good indicator of accuracy, as witnesses were sometimes 100 percent certain in
their mistaken identifications. Further, their confidence in an identification might have
been bolstered by such factors as knowing that other witnesses identified the same
person, that law enforcement believed that the right person was identified, or other
evidence supporting the original selection.
       The defense also called Deputy Sheriff Manuel Barraza, who responded to the
Bacher robbery. He had spoken with Bacher, who described the assailant as a white
male, possibly 5’11” and weighing around 180 pounds.
       Officer Jose Vizcarra testified that he responded to the call regarding Hernandez.
Hernandez described one suspect as an African-American male, approximately 25 years
old, 5’11,” 150 pounds, with a tattoo on his face; and a second suspect as African-
American male, also approximately 25 years old, 5’7,” 240 pounds, wearing a black
jacket, black pants, and a baseball hat. Hernandez reported that the first suspect asked
him where he was from, punched him, asked for his phone and money, told him to “get
the fuck” out of there, and then joined the second suspect and the two others where they
waited near a vehicle. Hernandez did not say that he was punched more than once and
did not report any injuries.
       The defense also called LAPD Officer Julian Robinson, who testified that he
spoke to Karina at the robbery scene for 10 to 15 minutes, and then filed an incident
report. He reported that Karina described a white male with brown hair, 5’10” tall,
weighing 160 pounds, 20 to 30 years old, and wearing a black hooded sweatshirt and
black pants. Officer Robinson wrote “white” in the section on his report for specifying
race or skin tone, but he could not recall whether Karina had referred to him as a white
male or whether she had simply said that his skin was white.



                                              9
       The mother of Mills’s child, Alexys Watson, testified that she was with Mills on
January 2, 2013, at approximately 7:30 p.m., when they stopped at the liquor store for a
snack. Watson parked her van in front of the store and waited there with her five children
while Mills went inside. As Mills was entering the store he greeted some people standing
in front, he then bought his snack and returned to the van. Watson did not see anyone get
robbed and did not see Mills hit or rob anyone. Watson was not certain of the date. It
could have been January 3.
                                        DISCUSSION
I. Joinder of counts 5 and 8
       A. Prosecution motion to consolidate
       Mills contends that the trial court abused its discretion in consolidating the Lo and
Bacher robberies (counts 5 and 8) with the Hernandez robbery (count 1). The order was
made prior to the preliminary hearing, pursuant to the prosecution’s written motion to
consolidate Mills’s four separate cases into the case in which both defendants were
charged with the Hernandez robbery. Before jury selection, counsel for Mills orally
moved to sever counts 5 and 8 from count 1 for trial. The trial court denied the motion.
       Section 954 permits the joinder of “two or more different offenses connected
together in their commission, or . . . two or more different offenses of the same class of
crimes or offenses, under separate counts.” (§ 954.) The trial court granted the
prosecution’s motion to consolidate the counts upon finding that the three counts alleged
the same class of crime. Violations of the same penal code provision are of the same
class. (People v. Soper (2009) 45 Cal.4th 759, 771.)
       Thus as counts 1, 5, and 8 all alleged second degree robbery in violation of section
211, granting the motion to consolidate was proper. It became incumbent upon Mills, as
the party opposing the motion to consolidate and later as the party moving to sever, to
make a clear showing of potential prejudice if the crimes were tried together. (People v.
Ochoa (1998) 19 Cal.4th 353, 409.) “‘Because consolidation ordinarily promotes
efficiency, the law prefers it.’ [Citations.] Accordingly, if . . . joinder is proper under
section 954 . . . , it is the defendant’s burden to show error in allowing a joint trial of the


                                               10
charged offenses and relief will obtain only on a clear showing of prejudice to establish
the trial court’s abuse of discretion. [Citation.]” (People v. Lucas (2014) 60 Cal.4th 153,
214.) To establish that the denial of a motion to sever properly joined counts amounted
to a prejudicial abuse of discretion, the defendant must demonstrate that the court’s ruling
exceeded the bounds of reason. (People v. Capistrano (2014) 59 Cal.4th 830, 848.)
       Four criteria used to determine whether the burden has been met “are these: (1)
would the evidence of the crimes be cross-admissible in separate trials; (2) are some of
the charges unusually likely to inflame the jury against the defendant; (3) has a weak case
been joined with a strong case or another weak case so that the total evidence on the
joined charges may alter the outcome of some or all of the charged offenses; and (4) is
any one of the charges a death penalty offense, or does joinder of the charges convert the
matter into a capital case. [Citation.]” (People v. Marshall (1997) 15 Cal.4th 1, 27-28.)
       Based upon the evidence presented at trial Mills contends that the first three
factors apply here. The trial court’s discretion must be reviewed on the basis of the
information before the court at the time of its ruling on a motion for separate trials.
(People v. Soper, supra, 45 Cal.4th at p. 774.) Before the court in this case were the
motion, opposition, and oral argument.
       The consolidation motion contained a brief summary of each robbery showing that
all three robberies were quick strong-arm robberies of strangers on the street, committed
within a short period of time (during the month of January 2013); and the prosecutor
represented that the facts would be cross-admissible to show modus operandi and
identity. With regard to the first factor, the court found that evidence would be cross-
admissible in separate trials. We agree that at that stage of the proceedings the facts
suggested a common plan and demonstrated potential cross-admissibility. (See People v.
Capistrano, supra, 59 Cal.4th at p. 849.) This “‘factor alone is normally sufficient to
dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly
joined charges.’ [Citations.]” (People v. Merriman (2014) 60 Cal.4th 1, 38.)
       The opposition to the motion detailed the flaws in the witnesses’ identifications in
all robbery counts except count 1, and defense counsel argued that that count 1’s stronger


                                             11
identification evidence could influence the other counts with weaker identification
evidence. Counsel also argued that inflammatory gang evidence could influence the
counts in which no gang enhancement was alleged. The court found that such defense
arguments were speculative, as there had not yet been a preliminary hearing, and that
Mills had not otherwise demonstrated potential prejudice requiring separate trials. The
court suggested that any prejudice could be remedied with a motion to bifurcate and a
request for a limiting instruction once the case was assigned to a trial department. The
defense made no request for a limiting instruction.6
       B. Defense motion to sever
       On the first day of trial, counsel for Mills made an oral motion to sever counts 5
and 8 from count 1 for trial. As the party seeking severance, his burden was “to clearly
establish . . . a substantial danger of prejudice requiring that the charges be separately
tried.” (People v. Bean (1988) 46 Cal.3d 919, 938.) In denying the motion to sever, the
trial court found that defense counsel’s showing was inadequate, consisting merely of the
same speculative arguments made in opposition to the motion to consolidate. We find
that the motion to sever was unsupported by reference to the preliminary hearing
testimony or other evidence. Mills thus did not meet his burden, and we find no abuse of
discretion.
       C. No prejudice
       As the trial court did not abuse its discretion, Mills is not entitled to reversal unless
he “‘shows that joinder actually resulted in “gross unfairness” amounting to a denial of
due process.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) To do so
Mills must demonstrate that the joinder resulted “in actual prejudice because it ‘had
substantial and injurious effect or influence in determining the jury’s verdict.’
[Citation.]” (United States v. Lane (1986) 474 U.S. 438, 449.) In other words, he must


6      At trial, Sherard’s counsel made a perfunctory oral motion to bifurcate the gang
allegation. Counsel for Mills joined, but submitted the motion without argument. In his
opening brief, Sherard assigned error to the trial court’s denial of the motion, but
withdrew this contention in his reply brief.

                                              12
demonstrate a reasonable probability that the joinder influenced the jury’s guilty verdicts.
(People v. Bean, supra, 46 Cal.3d at p. 940.)
       Mills contends that the trial of counts 5 and 8 was rendered grossly unfair by the
admission of gang evidence, as it was unrelated to any issue in those robberies. He
argues that because the identification evidence in counts 5 and 8 was weak, it is likely
that the jury convicted him solely because he was a member of a violent gang that
generated fear in the community. Because inflammatory gang evidence has the potential
to cause the jury to convict regardless of the defendant’s actual guilt, it should not be
admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040,
1050-1051.)
       The gang evidence was admissible and necessary prove the gang enhancement in
count 1. To the extent that it was not relevant or admissible as to counts 5 and 8, the trial
court would have been required to give a limiting instruction on request, restricting the
evidence to its proper scope. (People v. Hernandez, supra, 33 Cal.4th at p. 1051; Evid.
Code, § 355.) As jurors are presumed to understand, accept, and faithfully follow
instructions, any prejudice from the gang evidence would have been dispelled by the
appropriate limiting instructions. (See People v. Homick (2012) 55 Cal.4th 816, 866-
867.) As the trial court had no sua sponte duty to give a limiting instruction, and Mills
did not request one, he may not now complain of any prejudice caused by its omission.
(See People v. Chism (2014) 58 Cal.4th 1266, 1292.)
       In any event, we agree with respondent that Mills has not shown prejudice. We
apply the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), under which
Mills must show that he would have received a more favorable result in a separate trial.
(See People v. Mackey (2015) 233 Cal.App.4th 32, 100.) There is no merit to Mills’s
contention that the identification evidence admitted in support of counts 5 and 8 was
weak. The Lo and Bacher robberies were committed on the same evening by a man of
similar height and build and who appeared to be white. Karina and Cassandra both
identified Mills as the perpetrator of the Lo robbery. Karina selected his photograph
from in a photographic lineup, and then identified him at trial as the same man.


                                             13
Cassandra identified Mills at the preliminary hearing as resembling the robber. Bacher
identified Mills both from his photograph and in a live lineup. We conclude that even if
the jury had not heard the gang evidence in a separate trial of counts 5 and 8, there is no
reasonable probability that Mills would have received a more favorable result on those
counts.
II. Third-party culpability
       Mills contends that the trial court abused its discretion in excluding the testimony
of Irina Klioutchevskaia, the alleged robbery victim in count 7, which was originally
consolidated with the other robbery counts, but then dismissed before trial on the
prosecutor’s motion. Mills contends that Klioutchevskaia’s recantation of her
identification of Mills and later identification of another person would have been relevant
to raise a reasonable doubt about the victims’ identification of Mills in the Lo and Bacher
robberies. He also contends that the exclusion of the evidence resulted in the denial of
his constitutional rights to due process, a fair trial, and to present a defense.
       Any relevant evidence that raises a reasonable doubt as to a defendant’s guilt is
admissible, “including evidence tending to show that a party other than the defendant
committed the offense charged. Such evidence may be excluded only when the court
properly exercises its discretion under Evidence Code section 352 to reject evidence that
creates a substantial danger of undue consumption of time or of prejudicing, confusing,
or misleading the jury.” (People v. Hall (1986) 41 Cal.3d 826, 829, fn. omitted.) “The
court’s proper inquiry [is] limited to whether this evidence could raise a reasonable doubt
as to defendant’s guilt and then applying [Evidence Code] section 352.” (People v. Hall,
at p. 833.)
       We review the trial court’s determination for abuse of discretion. (People v.
Elliott (2012) 53 Cal.4th 535, 581.) A trial court has broad discretion to evaluate
evidence under Evidence Code section 352. (People v. Robinson (2005) 37 Cal.4th 592,
625.) The court may exclude evidence whenever its probative value is substantially
outweighed by the probability that its admission will require an undue consumption of



                                               14
time or create a substantial danger of confusing the issues. (People v. Mills (2010) 48
Cal.4th 158, 195.)
       The trial court’s discretion under Evidence Code section 352 will not be disturbed
unless it was exercised “‘in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) A miscarriage of justice occurs when it
appears that a result more favorable to the appealing party would have been reached in
the absence of the alleged errors. (Watson, supra, 46 Cal.2d at p. 836; see Cal. Const.,
art. VI, § 13.) “[T]he exclusion of weak and speculative evidence of third party
culpability does not infringe on a defendant’s constitutional rights.” (People v. Gonzales
(2012) 54 Cal.4th 1234, 1261, citing Holmes v. South Carolina (2006) 547 U.S. 319,
326-327.) Even an erroneous exercise of discretion to exclude third-party culpability
evidence would not implicate the federal constitution; thus the applicable standard of
prejudice is that for state law error, as set forth in Watson. (People v. Cudjo (1993) 6
Cal.4th 585, 611.)
       “We review the correctness of the trial court’s ruling at the time it was made.”
(People v. Welch (1999) 20 Cal.4th 701, 739.) Further, reversal is unwarranted unless
“[t]he substance, purpose, and relevance of the excluded evidence was made known to
the court by the questions asked, an offer of proof, or by any other means.” (Evid. Code,
§ 354, subd. (a).)
       Mills made his offer of proof in a written motion in limine, which included a
summary of a district attorney investigator’s interview with Klioutchevskaia in
November 2013, and a statement of facts, which purported to summarize portions of
police reports. On appeal, Mills refers not only to the written motion and the evidence
presented at trial, but also assertions contained in the prosecutor’s motion to consolidate,
which was heard prior to the preliminary hearing in another department of the superior




                                             15
court. We do not summarize those facts, as there is no indication that the trial court
considered that in connection with the motion to admit Klioutchevskaia’s testimony.7
       Klioutchevskaia told the district attorney investigator that on January 23, 2013,
she was assaulted and robbed of her purse while walking at night on Fairfax Avenue near
Beverly Boulevard. She described an attack similar to both the Lo and Bacher robberies.
Just after the robbery, Klioutchevskaia described her assailant to the police as a white
male in his early 20’s, with blond hair, mustache, and beard, wearing a dark cap, dark
sweat jacket, and dark shorts. The following month she selected a photograph of Mills
from a photographic lineup, and said she believed with about 50 percent certainty that it
depicted the assailant. A few months later, Klioutchevskaia selected Mills from a live
lineup, stating she believed he was a different person from the suspect in the photograph,
and was about 60 percent certain that he was the robber. Klioutchevskaia also told the
investigator that about one month before their interview, near Santa Monica Boulevard
and Fountain Avenue, she saw a transient sitting on a curb amid a group of transients.
She was 90 percent certain that he was the man who had robbed her, and she told the
investigator that she believed that her prior identifications were erroneous.
       This evidence was offered to show that Karina and Bacher, like Klioutchevskaia,
may also have made mistaken identifications, and that the actual perpetrator could still be
at large. Defense counsel argued that the testimony would corroborate the defense
expert’s opinion regarding the effects of unreliable police identification procedures. The
trial court denied the motion pursuant to Evidence Code section 352, and made the
following findings: Mills’s showing of third-party culpability was insufficient, as the

7        Mills suggests that because prior to trial the prosecution claimed that the facts
showed sufficient cross-admissibility to justify consolidation of the three counts, they
must be deemed sufficient to establish a modus operandi. Mill’s comparison is inapt.
The court’s assessment of cross-admissibility to evaluate potential prejudice from a joint
trial is different from an assessment of the admissibility of evidence under Evidence
Code section 352. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220-1221, 1222,
fn. 11.) Further, the trial court’s discretion in consolidating or severing counts is broader
than its discretion in admitting evidence of uncharged offenses under Evidence Code
section 1101, subdivision (b). (People v. Bean, supra, 46 Cal.3d at pp. 935-936.)

                                             16
offenses were not sufficiently similar; the probative value of Klioutchevskaia’s testimony
was outweighed by the potential prejudicial effect of distracting the jury from the
subsisting charges; and the evidence would require an undue consumption of time. In
particular, the court found that admission of the evidence would require evidence of all
the facts surrounding the Klioutchevskaia robbery and all her identifications.
       Third-party culpability evidence must tend to directly connect the third party to the
commission of the charged crimes. (People v. Suff (2014) 58 Cal.4th 1013, 1059; People
v. Hall, supra, 41 Cal.3d at p. 832.) “For evidence of an uncharged offense to be
admissible to establish the third party’s identity as the perpetrator of the charged crimes,
“‘“[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to
be like a signature.”’ [Citations.] A large number of common marks may, when viewed
in combination, establish the required distinctive pattern. [Citation.]” (People v. Elliott,
supra, 53 Cal.4th at p. 581; see also People v. Suff, supra, at p. 1060.) Thus, Mills was
required to connect the transient seen by Klioutchevskaia to the Lo and Bacher robberies
by showing that all three robberies shared enough unusual and distinctive common marks
to be like a signature. The “common marks must be distinctive rather than ordinary
aspects of any such category of crime.” (People v. Bean, supra, 46 Cal.3d at p. 937.)
       Mills suggests that all three victims gave similar descriptions of the robber, and he
notes some similar features common to the three robberies: the Klioutchevskaia robbery
occurred at night within a few blocks and within three days of the Lo and Bacher
robberies; the robber in all cases either knocked the victim down or attempted to do so;
Bacher described him as a white male, 5’11, 180 pounds; Karina described a white male,
5’10, 160 pounds, 20 to 30 years of age, with brown hair, wearing a black hooded
sweatshirt and black pants; and Klioutchevskaia described a white male in his early 20’s,
with blond hair, mustache, and beard, wearing a dark cap, dark sweat jacket, dark shorts.
Unlike the others, she said that he displayed a gun.
       Mills submitted no facts that might show that strong-arm robberies at night in
West Hollywood or a nearby Los Angeles neighborhood were unusual, or that particular
characteristics of the three robberies were not simply the ordinary aspects of any such


                                             17
crimes. Nor did the descriptions suggest that the commission of such crimes by a white
man of average build, in his 20’s, wearing dark clothing, and displaying a gun during just
one of them, is so unusual and distinctive as to be like a signature. We conclude that the
trial court did not abuse its discretion in finding the dismissed crime too dissimilar to the
charged crimes to be relevant.
       Mills also contends that Klioutchevskaia’s testimony would show that Karina and
Bacher could have been mistaken in their identifications, because Klioutchevskaia might
also have been mistaken in her initial identification. Mills argues that Klioutchevskaia’s
certainty that it was the transient, not the suspect she identified earlier, would have
supported the defense that another man committed the robberies and Mills was
misidentified as the perpetrator. He cites the testimony of the defense expert on
eyewitness memory that several witnesses can make the same mistaken identification if
the police procedures are unreliable and suggestive, and that such witnesses can become
more certain as time goes by.
       There was no evidence that unreliable identification procedures were used here.
Moreover, Dr. Eisen testified that witnesses’ memories tended to be more detailed and
more accurate immediately after an event, and that details may be lost over time.
Klioutchevskaia twice identified Mills soon after the robbery; her identification of the
transient came approximately nine months later. This evidence would be more likely to
have defeated any third-party culpability defense and bolstered the identifications by Lo
and Bacher; it thus had little probative value for the defense, and the trial court did not
abuse its discretion in excluding the evidence. For the same reason, there is no
reasonable probability that admission of the Klioutchevskaia evidence would have
yielded a different result. Mills has not demonstrated a miscarriage of justice.
III. Instruction as to grand theft
       Mills contends that the trial court erred in refusing to give a requested jury
instruction on theft as a lesser included offense of robbery. Sherard joins in this
contention and adopts Mills’s arguments; however, as he has failed to provide a
particularized argument in support of his claimed right to relief on this point, we have


                                              18
confined our discussion to Mills’s arguments. (See People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 363-364.)
       “Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) “The trial court must instruct on general legal principles closely
related to the case. This duty extends to necessarily included offenses when the evidence
raises a question as to whether all the elements of the charged offense are present.
[Citation.] It is settled that the crime of theft, whether divided by degree into grand theft
or petty theft, is a lesser included offense of robbery. [Citation.] Robbery includes the
added element of force or fear. [Citation.] [¶] Nevertheless, ‘the existence of “any
evidence, no matter how weak,” will not justify instructions on a lesser included offense
. . . .’ [Citation.] Such instructions are required only where there is ‘substantial
evidence’ from which a rational jury could conclude that the defendant committed the
lesser offense, and that he is not guilty of the greater offense. [Citations.]” (People v.
DePriest (2007) 42 Cal.4th 1, 50.) “‘We apply the independent or de novo standard of
review to the failure by the trial court to instruct on an assertedly lesser included offense.
[Citation.]’” (People v. Licas (2007) 41 Cal.4th 362, 366.)
       Mills contends that the substantial evidence of theft without force or fear was the
following: although Hernandez consistently said he was punched at least one time in the
face, there were inconsistencies in Hernandez’s testimony and his statements to the police
about which defendant hit him, how many times he was hit, and whether he was injured;
there was no “independent” evidence (such as the surveillance video) showing that
Hernandez was hit at all; Mills did not search Hernandez until after Hernandez was
leaving; Hernandez did not run, but walked away after he was told to leave; and he
waited several hours before calling the police.
       Mills cites no authority for his suggestion that viewing the evidence in the light
favoring his argument that the instruction should have been given, requires that we
disregard the victim’s testimony unless it is independently corroborated. Nor does Mills
cite authority for the suggestion that no robbery occurs when the force is applied by an


                                              19
accomplice or when there is no injury. Although Mills has identified a few
inconsistencies in the evidence, he has identified no evidence to contradict Hernandez’s
testimony that he was punched in the face soon after he emerged from the liquor store.
Indeed, there was circumstantial evidence which corroborated Hernandez’s testimony
that the punch in his face caused him to move backward. The surveillance video showed
Mills approaching Hernandez just before Hernandez claimed to have been punched, and
while the punch itself was not captured on camera, Hernandez could be seen backing up
immediately afterward.
       As Mills points out, it has been said that the quantum force necessary to turn theft
into robbery must be something more than that “which is necessary to accomplish the
mere seizing of the property.” (People v. Morales (1975) 49 Cal.App.3d 134, 139.)
However, this simply means, for example, that snatching a purse from an unresisting
person is not robbery (People v. Burns (2009) 172 Cal.App.4th 1251, 1258-1259), or that
the incidental touching caused by a pickpocket while extracting a wallet from his victim’s
pocket does not make the crime a robbery (People v. Garcia (1996) 45 Cal.App.4th 1242,
1246, disapproved on another point in People v. Mosby (2004) 33 Cal.4th 353, 365, fn.
2). “[F]or purposes of the crime of robbery, the degree of force utilized is immaterial.
[Citations.]” (People v. Griffin (2004) 33 Cal.4th 1015, 1025.) Even a slight push and
tap on the shoulder is sufficient if it overcomes the victim’s resistance, such as by causing
fear. (People v. Garcia, supra, at p. 1246.)
       Mills fails to explain how it was necessary to punch Hernandez in the face to seize
his wallet and cell phone. Mills fails to explain how a punch in the face was merely
incidental to grabbing property kept in the victim’s pockets. The only reasonable
inference to be drawn is that Mills intended to overcome Hernandez’s resistance by
means of fear of bodily injury.
       Moreover, Hernandez was in fear of bodily injury. Hernandez testified that when
Mills approached him inside the liquor store and asked where he was from, Hernandez
felt intimidated, was afraid, and was concerned for his safety. Later, when he was
punched, Hernandez thought that defendants would kill him “or something.” Not only


                                               20
did Hernandez not resist, he offered to let them take his just-purchased alcohol, as well.
The only evidence that Mills cites to suggest that Hernandez was not afraid, that he
walked rather than ran home and was reluctant to call the police, may be sufficient to
support such a speculation, but “‘[s]peculation is an insufficient basis upon which to
require the trial court to give an instruction on a lesser included offense.’ [Citation.]”
(People v. Sakarias (2000) 22 Cal.4th 596, 620.)
       Mills contends that there was substantial evidence to support a finding that he did
not form the intent to steal until after applying force. “‘If intent to steal arose only after
the victim was assaulted, the robbery element of stealing by force or fear is absent.
[Citations.]’ (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056 [to constitute
robbery, intent to steal must be formed before or during the application of force].) . . .
‘Instructions on after-acquired intent and theft as a lesser included offense of robbery are
unwarranted absent “substantial evidence” that the defendant first formed the intent to
take the victim’s property after applying force. [Citation.]’ [Citation.]” (People v.
Castaneda (2011) 51 Cal.4th 1292, 1331.) This means that to justify a theft instruction
substantial evidence must support an inference that the defendant “formed the intent to
steal only after he ceased applying force against the victim.” (Id. at p. 1332.)
       Mills contends that because Hernandez testified that Mills did not search him until
Hernandez began walking away, the jury could have found that he did not form the intent
to steal until Hernandez was punched. Mills attempts to compare these facts to those in
People v. Ramkeesoon (1985) 39 Cal.3d 346, 349-351. However, any comparison fails,
as the defendant in that case testified that he did not form the intent to steal until after he
had fatally wounded the victim. Here, there was no testimony from Mills or other
evidence to suggest a state of mind other than the intent to assault Hernandez in order to
steal from him. Indeed, an attack which overcomes the victim’s resistance, followed by
theft, gives rise to the reasonable inference that the intent to steal existed at the time of
the attack. (See People v. Holt (1997) 15 Cal.4th 619, 670-671.) During the 10 seconds
after Hernandez was struck, his wallet was demanded and his pockets were searched.
The only reasonable inference to be drawn from these facts is that Mills intended to


                                               21
commit a robbery at the time he or Sherard punched Hernandez. Any after-acquired
intent appears to have been merely an intent to check for any missed valuables.
       Regardless, the omission of a theft instruction was harmless, as “‘the factual
question posed by the omitted instruction was necessarily resolved adversely to the
defendant under other, properly given instructions’ [citation].” (People v.
Prettyman (1996) 14 Cal.4th 248, 276.) The jury was instructed with CALCRIM No.
1600 on the elements of robbery, including the following language:
               “[T]he defendant used [force] or fear to take the property or to
       prevent the person from resisting; and . . . when the defendant used force or
       fear to take the property, he intended to deprive the owner of it
       permanently. The defendant’s intent to take the property must have been
       formed before or during the time that he used force or fear. If the defendant
       did not form this required intent until after using the force or fear, then he
       did not commit robbery.”

       The jury was also amply instructed that it must find the defendant not guilty unless
the People met their burden of proof beyond a reasonable doubt. The jury’s guilty verdict
necessarily included a finding that Mills used force or fear to steal Hernandez’s property,
and the intent to steal was formed before or during the time he used force or fear. Had
the jury not found the elements of force or fear, or if it had found that the intent to steal
was formed only as an afterthought, it would have acquitted Mills of the robbery
altogether. Under such circumstances, it was not reasonably probable that a theft
instruction would have produced more favorable result. (See People v. Breverman
(1998) 19 Cal.4th 142, 149 [Watson test applies to failure to instruct on lesser included
offense]; Watson, supra, 46 Cal.2d at p. 836.)
IV. Self-representation motion
       Mills contends that the trial court violated his constitutional right to represent
himself during sentencing by denying his Faretta motion,8 which he made on February



8      See Faretta v. California (1975) 422 U.S. 806, 820-821, 835 (Faretta).


                                              22
14, 2014, the date scheduled for his bifurcated court trial on his prior convictions and
sentencing.
       The Sixth Amendment to the United States Constitution grants criminal
defendants the right to counsel in all proceedings that may substantially affect their
rights. (Mempa v. Rhay (1967) 389 U.S. 128, 133-134.) The right to counsel may be
waived if the waiver is knowing and intelligent. (Faretta, supra, 422 U.S. at p. 807;
People v. Bradford (1997) 15 Cal.4th 1229, 1363.) So long as the defendant’s request is
made knowingly and voluntarily, and asserted within a reasonable time prior to trial, the
right of self-representation is absolute. (People v. Doolin (2009) 45 Cal.4th 390, 453.)
Otherwise, the issue is left to the trial court’s discretion. (People v. Windham (1977) 19
Cal.3d 121, 127-129 (Windham).)
       The trial court conducted an ex parte hearing, allowed Mills to explain the basis of
his claim, and then heard defense counsel’s explanations. The record does not reflect that
Mills asked to represent himself during sentencing as he claims on appeal. Instead, Mills
sought to represent himself in bringing a motion for new trial on the ground of ineffective
assistance of counsel. The court initially granted the motion when Mills said he was
prepared to proceed, but Mills changed his position when the court indicated that there
would be no continuance. The court then denied the motion as untimely and proceeded
to trial on the prior convictions.
       Later the same day, after Sherard was sentenced, the court heard further argument
from defense counsel regarding Mills’s request to represent himself and the need for a
continuance. Counsel stated that Mills had informed her on January 15, 2014, that
because she did not intend to move for a new trial, he wished to represent himself. She
telephoned the court clerk to ask that the case be advanced for an immediate Faretta
hearing, but the clerk refused, telling her that the court would not like to have the case
advanced because there was a codefendant and a scheduled bifurcated trial on the prior
convictions. Counsel did not file a written motion to either advance the case or to
continue the sentencing hearing, and did not otherwise notify the court in writing of
Mills’s request to proceed in pro. per. Counsel explained to the court that the clerk’s


                                             23
statements led her to believe that the trial court would hear a Faretta motion at the time
set for the bifurcated trial, and then give Mills time to decide what he wished to do with
regard to his sentencing. Despite this additional argument the ruling remained unchanged
and the court proceeded with sentencing.
       Mills contends that his motion was timely, and thus his right to represent himself
was absolute and not a matter of the court’s discretion. While Mills recognizes that a
motion made after verdicts but before a bifurcated court trial on prior convictions has
been held to have been made midtrial and thus untimely (see People v. Rivers (1993) 20
Cal.App.4th 1040 (Rivers); People v. Givan (1992) 4 Cal.App.4th 1107), he points to
People v. Miller (2007) 153 Cal.App.4th 1015 (Miller), where it was held that once a
case moves beyond the trial stage and enters posttrial proceedings, a Faretta motion may
be timely. In Miller, the defendant made his motion to represent himself for sentencing
after the completion of trial, and two months before sentencing, which the appellate court
considered a “separate proceeding[] from the trial.” The court held that the request was
timely and the right to self-representation was thus absolute. (Id. at p. 1024.)
       Mills argues that these cases show that a motion for self-representation at
sentencing must be made after the bifurcated court trial on prior convictions but prior to
sentencing. Mills contends that the holding of Miller applies here, requiring that his
renewed motion must be deemed timely because he made it as soon after trial and before
sentencing as possible. He argues that when both proceedings are scheduled for the same
day, as in this case, it would be paradoxical to require the defendant to wait until after the
bifurcated trial, only to have the motion deemed untimely because it was not brought well
enough in advance of sentencing. He concludes that a Faretta motion must therefore be
deemed timely under such circumstances, or the constitutional right of self-representation
would always be thwarted. We do not read Miller as enunciating a bright-line rule of
timeliness; nor has the California Supreme Court construed Miller as doing so; rather, the
high court explained that the circumstances in Miller made the Faretta motion timely, not
simply because a sentencing hearing was a separate, posttrial proceeding, but because it



                                             24
was made within a reasonable time prior to the proceeding in which the defendant sought
to represent himself. (See People v. Doolin, supra, 45 Cal.4th at p. 455, fn. 39.)
       Mills also contends that he should be deemed to have made the motion when he
informed defense counsel one month earlier that he wished to represent himself. He
compares this circumstance to a constructive filing of a notice of appeal or civil action by
an incarcerated defendant who has relied upon trial counsel’s representation that the
notice of appeal would be timely filed, or upon prison officials to mail the notice. (See
People v. Slobodion (1947) 30 Cal.2d 362, 365-369; In re Benoit (1973) 10 Cal.3d 72,
85-89.) We have no basis to craft such a rule here, where there was no evidence of such
reliance. Defense counsel stated to the court that she inquired about setting a hearing on
Mills’s Faretta motion, but there was no mention of any representation made to Mills or
his expectation; and Mills did not claim to have attempted to send mail to the court or his
attorney.
       Regardless, we decline to second-guess the California Supreme Court’s consistent
refusal to adopt a bright-line test of timeliness for Faretta motions. (See People v. Lynch
(2010) 50 Cal.4th 693, 771, overruled on other grounds in People v. McKinnon (2011) 52
Cal.4th 610, 636-643; People v. Clark (1992) 3 Cal.4th 41, 99; People v. Burton (1989)
48 Cal.3d 843, 854.) “[T]imeliness for purposes of Faretta is based not on a fixed and
arbitrary point in time, but upon consideration of the totality of the circumstances that
exist in the case at the time the self-representation motion is made. An analysis based on
these considerations is in accord with the purpose of the timeliness requirement, which is
‘to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct
the orderly administration of justice.’ [Citation.]” (People v. Lynch, supra, at p. 724,
quoting People v. Burton, supra, at p. 852.)
       Mills did not seek to represent himself for purposes of sentencing, but to bring a
motion for new trial on grounds that all related to the guilt phase of the bifurcated trial.
He has cited no authority for his suggestion that he was precluded from making a Faretta
motion for that purpose prior to the second part of the bifurcated trial on the prior



                                               25
convictions.9 The guilt phase of the trial concluded on December 16, 2013. On that date
all counsel joined in a request to continue sentencing, and agreed to February 14, 2014.
In January, Mills informed counsel that he wished to represent himself. One month after
that, two months after his conviction, Mills made his Faretta motion. Under all the
circumstances, the right to self-representation cannot be deemed timely.
       In ruling on an untimely Faretta motion, the trial court should consider such
factors as “the quality of counsel’s representation of the defendant, the defendant’s prior
proclivity to substitute counsel, the reasons for the request, the length and stage of the
proceedings, and the disruption or delay which might reasonably be expected to follow
the granting of such a motion.” (Windham, supra, 19 Cal.3d at p. 128.) “[A] trial court’s
exercise of discretion in denying an untimely Faretta motion is properly affirmed if
substantial evidence in the record supports the inference that the court had those factors
in mind when it ruled. [Citation.]” (People v. Bradford (2010) 187 Cal.App.4th 1345,
1354.) “‘[A] reviewing court must give “considerable weight” to the court’s exercise of
discretion and must examine the total circumstances confronting the court when the
decision is made.’ [Citation.]” (Id. at p. 1353.) A trial court’s ruling is an abuse of
discretion only when it is so arbitrary, capricious, or absurd as to constitute a miscarriage
of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125 [abuse of
discretion standard].) Whether an erroneous denial of an untimely Faretta motion
resulted in a miscarriage of justice is determined under the harmless error test of Watson.
(Rivers, supra, 20 Cal.App.4th at p. 1050.) Under that test, it is the defendant’s burden to
establish “a reasonable probability that error affected the trial’s result.” (People v.
Hernandez (2011) 51 Cal.4th 733, 746.)
       It is apparent from the record that the trial court considered the Windham factors.
While Mills had shown no proclivity to substitute counsel, substantial evidence supports
the court’s express and implied findings that defense counsel’s representation was

9     Though we have found no case in which such a motion was made, it appears to be
permissible. (Cf. People v. Risenhoover (1966) 240 Cal.App.2d 233; see 6 Witkin, Cal.
Criminal Law (4th ed. 2012) Criminal Judgment, § 126, p. 169.)

                                              26
adequate and that the reasons for the request, the length and stage of the proceedings, and
the disruption or delay which might reasonably be expected to follow did not favor
granting the motion. (See Windham, supra, 19 Cal.3d at p. 128.) The court conducted an
in camera hearing, and permitted Mills to state the reasons for his dissatisfaction with
counsel, as well as the grounds for his proposed new trial motion. Defense counsel
responded to the reasons for his dissatisfaction and explained the strategic reasons for not
making all motions or calling all witnesses suggested by Mills.
       Mills has made no attempt to demonstrate a miscarriage of justice, but merely
argues that the Watson test is impractical to apply to the denial of requests for self-
representation, as it is recognized that in most criminal prosecutions defendants are rarely
capable of securing a better result when representing themselves. (See Faretta, supra,
422 U.S. at p. 834; Rivers, supra, 20 Cal.App.4th at p. 1051.) Mills asks that the matter
be remanded for resentencing, but does not suggest that a motion for a new trial might
have succeeded if he had been permitted to represent himself in bringing the motion.
       Indeed, Mills does not suggest that a motion for new trial might have been granted
if brought by an experienced attorney, and we discern no reasonable likelihood of such
success. Mills stated several grounds on which he would make a new trial motion:
prejudice due to the joinder of counts; the failure of defense counsel to call all witnesses
he would have called, to make a Pitchess motion,10 or to call a gang expert; sleeping
jurors; the trial court’s alleged bias; insufficient evidence of the gang enhancement; and
alleged intimidation of a witness by the court, causing the witness to refuse to testify.
Mills’s counsel responded that her file reflected the decisions she made during trial that
she had strategic reasons not to make a Pitchess motion, and she had found no basis for
one. Counsel also stated that some witnesses were not called for strategic purposes based
on inconsistencies in their statements, lack of reliability, or past convictions that might
affect credibility. The trial court expressed the view that most of Mills’s grounds could
be reviewed on appeal. Neither defense counsel nor the court observed any sleeping

10     See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Penal Code
sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.

                                             27
jurors during trial, and the court denied intimidating any witnesses. Under such
circumstances, a motion for new trial had no reasonable probability of success, and no
prejudice is shown.
V. Cumulative error
       Mills contends that the cumulative effect of all the alleged errors was to deny him
a fair trial. Because “[w]e have either rejected on the merits defendant’s claims of error
or have found any assumed errors to be nonprejudicial,” we must reject Mills’s claim of
prejudicial cumulative effect. (People v. Sapp (2003) 31 Cal.4th 240, 316.)
VI. Witness intimidation (count 13)
       Sherard contends that Hernandez’s testimony that Sherard made intimidating
gestures when Hernandez took the witness stand did not provide substantial evidence to
support his conviction of attempting to dissuade a witness. He contends that the crime
cannot be committed with gestures alone, but must include audible words. Further, he
contends that the evidence showed only that he moved his hand in a manner that was
equally subject to an innocent interpretation.
       When a criminal conviction is challenged as lacking evidentiary support, “the
court must review the whole record in the light most favorable to the judgment below 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. Johnson (1980) 26 Cal.3d
557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) In making this
determination, we do not reweigh the evidence or resolve conflicts in the evidence.
(People v. Young (2005) 34 Cal.4th 1149, 1181.) We must presume in support of the
judgment the existence of every fact the jury could reasonably deduce from the evidence.
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The same standard applies when the
conviction rests primarily on circumstantial evidence. [Citation.]” (Ibid.) Reversal on a
substantial evidence ground “is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]”
(People v. Bolin (1998) 18 Cal.4th 297, 331.)


                                             28
       Sherard was convicted of a felony violation of section 136.1, subdivisions (a)(2)
and (c)(1): a knowing and malicious attempt to prevent or dissuade a witness from
attending or giving testimony, when such act is accompanied by force or by an express or
implied threat of force or violence. Attempting to dissuade a witness from testifying is a
specific intent crime. (People v. Young, supra, 34 Cal.4th at p. 1210.) Thus, the
defendant must intend his acts or statements to affect or influence the testimony or acts of
a potential witness. (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.) “There is, of
course, no talismanic requirement that a defendant must say ‘Don’t testify’ or words
tantamount thereto, in order to commit the charged offenses.” (People v. Thomas (1978)
83 Cal.App.3d 511, 514.) Even ambiguous statements are sufficient to support a
conviction where a jury could reasonably interpret them under the circumstances as a
warning or threat not to testify. (People v. Ford (1983) 145 Cal.App.3d 985, 989-990.)
The defendant’s intent to dissuade a witness may be inferred from his words or actions.
(See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1343; People v. Thomas, supra, at
p. 514.)
       Here, Hernandez demonstrated Sherard’s gestures as a fist raised upward over his
chest, followed by a forward pointed index finger, and then another closed fist, which
Sherard moved back and forth a number of times. As Sherard made these gestures, he
looked directly at Hernandez and inaudibly mouthed, “I’m gonna fuck you up.” On
cross-examination, Hernandez agreed that because he did not hear the words, he could
not be certain what is was that Sherard mouthed. Hernandez nevertheless felt threatened
and frightened.
       Sherard contends that a violation of section 136.1 cannot be based upon mere hand
gestures or the inaudible formation of words. He cites no authority for his assertion, but
argues that his position is supported by “pure logic,” because gestures, especially gestures
by a defendant who is naturally unhappy to be in court, are particularly susceptible to
speculative interpretation.
       First, we reject any suggestion that if Sherard’s gestures were equally susceptible
to an innocent interpretation, this court must accept that interpretation. This describes the


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jury’s duty, and is inapplicable on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 792-
793.) “‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.’” [Citations.]’ [Citation.]”
(Id. at p. 793.)
         Further, there is no provision in section 136.1 requiring a verbal or audible
expression. Sherard was not charged with the related crime of making a criminal threat
in violation of section 422, subdivision (a), for example, which expressly requires a
verbal, written, or electronic communication. (§ 422, subd. (a); see People v.
Franz (2001) 88 Cal.App.4th 1426, 1442, 1448 [“verbal” means any noise or sound
capable of conveying some meaning].) By contrast, “[t]he language of section 136.1
focuses on an unlawful goal or effect, the prevention of testimony, rather than on any
particular action taken to produce that end.” (People v. Salvato (1991) 234 Cal.App.3d
872, 883.)
         Like Sherard, neither we nor respondent has found a California case which
directly addresses whether threatening gestures alone can or cannot constitute an attempt
to dissuade a witness. In jurisdictions which also require proof of an express or implied
threat against the witness, evidence of threatening gestures alone have been held
sufficient. (See, e.g., United States v. Balzano (7th Cir. 1990) 916 F.2d 1273, 1279, 1291
[throat-slashing and gun-simulating gestures constituted violation of 18 U.S.C.
§ 1512(b)]; State v. Quinones (2009) 42 Kan.App.2d 48, 53-55 [throat-slicing gestures
during witness’s testimony].) Thus, unless an express verbalization is required by the
statute, “someone may intimidate a witness by glaring at him, drawing his hand across his
throat, and making a motion with his fingers of shooting him, without saying a word.”
(United States v. Navarro (9th Cir. 2010) 608 F.3d 529, 534, fn. omitted.) Similarly here,
a jury could reasonably find that Sherard’s gestures were intended to imply a threat of
violence against Hernandez if he testified, particularly as they were made while Sherard
was staring and pointing at Hernandez as he mouthed what appeared to be threatening
words.


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        We also reject Sherard’s suggestion that we must consider the bailiff’s failure to
observe the gestures in reviewing the sufficiency of the evidence; and the contention that
Hernandez necessarily “recanted” his testimony that threatening words were mouthed,
that respondent conceded as much, or that such testimony may not be considered on
appeal.11 The uncorroborated testimony of a single witness is sufficient to sustain a
conviction unless the testimony is physically impossible or inherently improbable.
(People v. Scott (1978) 21 Cal.3d 284, 296.) Inconsistencies within the testimony do not
render the evidence insufficient, as it is the exclusive province of the jury to determine
the credibility of a witness and to resolve evidentiary conflicts. (People v. Young, supra,
34 Cal.4th at p. 1181.) Indeed, “a trier of fact is permitted to credit some portions of a
witness’s testimony, and not credit others.” (People v. Williams (1992) 4 Cal.4th 354,
364.)
        Sherard has failed to demonstrate that it was physically impossible or inherently
improbable that the gestures were as Hernandez described them or that he incorrectly
interpreted the mouthed words. We conclude that Hernandez’s testimony provided
substantial evidence to support the jury’s finding that the gestures were meant as an
implied threat.
VII. 911 call
        Sherard contends that count 1 must be reversed because Hernandez’s 911 call was
inadmissible hearsay and should have been excluded in its entirety. Mills joins in this
contention and adopts Sherard’s arguments; however, as he has failed to provide a
particularized argument in support of his claimed right to relief on this point, we have
confined our discussion to Sherard’s arguments. (See People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at pp. 363-364.)

11     After Hernandez agreed that he could not be certain of the words mouthed,
because they were not audible, defense counsel asked, “So whatever threat you say
happened now is limited solely to a physical motion; am I right?” Hernandez answered,
“Yeah.” Counsel followed up with the question, “Can we disregard any words he may
have mouthed now?” The trial court sustained an objection to the last question, adding,
“It’s up to the jury to decide what they will consider.”

                                              31
       Sherard claims to have objected to the admission of the 911 call. In fact, his
counsel objected to the following four lines in the 12-page transcript of Hernandez’s call
to the 911 operator: “And then the guy told me, the, the owner of the liquor store told
me, why this guy asking you where you from? And I said I don’t know he’s crazy.”
Respondent contends that except as to this portion of the call, Sherard’s contention is
forfeited on appeal.
       We agree. A challenge to the admissibility of evidence is generally not cognizable
on appeal in the absence of a specific and timely objection in the trial court on the ground
urged on appeal. (Evid. Code, § 353.) An objection on one ground does not preserve a
challenge based upon a different ground. (People v. Partida (2005) 37 Cal.4th 428, 434-
435.) “A party cannot argue the court erred in failing to conduct an analysis it was not
asked to conduct.” (Id. at p. 435.) And as Sherard does not direct any argument to the
portion of the 911 call which was the subject of his trial objection, we need not consider
whether the trial court erred in its admission. (See People v. Freeman (1994) 8 Cal.4th
450, 482, fn. 2.)
       Apparently anticipating this finding, Sherard has asked in a footnote that we
nevertheless reach his contention in order to forestall a claim of ineffective assistance of
counsel. We decline, as it does not appear that Sherard would be able to sustain such a
claim by demonstrating that a more favorable outcome was reasonably probable in the
absence of counsel’s alleged errors. (See Strickland v. Washington (1984) 466 U.S. 668,
694, 697; People v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
       Sherard contends that the 911 call was prejudicial because it buttressed conflicting
parts of Hernandez’s testimony regarding the actions of Mills during the robbery.
Sherard fails to specify what part of the testimony about Mills’s actions was harmful or
helpful, or how it was harmful or helpful, but simply claims it was “fully detailed in the
statement of facts.” Sherard also contends that he was prejudiced by Hernandez’s
opinions given to the 911 operator that both robbers were gang members, and that one of
them might have had a weapon; and he complains that such statements buttressed
Hernandez’s testimony and the evidence that defendants were gang members. The


                                             32
challenged statements were merely somewhat duplicative of Hernandez’s trial testimony
and the gang expert’s testimony, which did not need corroboration. The exclusion of
Hernandez’s opinion that defendants were gang members could not have affected the
result, as there was ample evidence given by gang expert Officer O’Brien, who testified
that Mills had admitted his membership in the School Yard Crip gang, and that Sherard
had admitted to other officers that he was an active member in the gang.
       Nor was it probable that the verdict was affected by Hernandez’s statement to the
911 operator that he did not observe a weapon. Hernandez testified that there was
something under Mills’s shirt that he thought was a gun. His 911 statement suggests that
there was, in fact, no gun, and as respondent notes, such a suggestion was favorable to
Sherard, not harmful.
       As Sherard has not demonstrated that the admission of the 911 call resulted in a
miscarriage of justice, this conclusion would dispose of any ineffective assistance claim,
obviating any need to reach Sherard’s forfeited hearsay contention to forestall a claim of
ineffective assistance of counsel.
       Regardless, if we were to reach the merits of the issue and find the 911 call to be
inadmissible hearsay, we would conclude that the admission of this evidence was
harmless. The erroneous admission of evidence is not reversible unless it has resulted in
a miscarriage of justice, measured under the test of Watson, supra, 46 Cal.2d at p. 836.
(People v. Partida, supra, 37 Cal.4th at p. 439; see Evid. Code, § 353; Cal. Const., art.
VI, § 13.) A miscarriage of justice occurs when it appears that a result more favorable to
the appealing party would have been reached in the absence of the alleged errors.
(Watson, at p. 836; see Cal. Const., art. VI, § 13.) It is Sherard’s burden to demonstrate
prejudice. (See People v. Hernandez (2011) 51 Cal.4th 733, 746.)
       There is no merit to Sherard’s conclusion that the evidence as to count 1 was “far
from overwhelming.” Hernandez positively identified Sherard at trial as one of the
robbers, and video surveillance corroborated Hernandez’s testimony by showing Mills
approach Hernandez in the store, and then showing Hernandez, Mills, and Sherard
outside the store. We discern no reasonable probability that the exclusion of the 911 call


                                            33
would have raised a reasonable doubt in the minds of the jurors regarding the identity of
the robbers, their gang affiliation, or the defendants’ guilt.
                                       DISPOSITION
       The judgments are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   ____________________________, J.
                                                   CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




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