Filed 6/27/13 P. v. Beasley CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064365
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10900213)
                   v.

ANTHONY BEASLEY,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
         Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Eric L.
Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Wiseman, Acting P.J., Poochigian, J. and Franson, J.
       Defendant and appellant Anthony Beasley contends the trial court abused its
discretion in failing to exclude certain evidence pursuant to Evidence Code section 352
and that the totality of evidence is insufficient to sustain one of his attempted robbery
convictions. Neither contention has merit; we affirm the judgment.
                       FACTS AND PROCEDURAL HISTORY
       Viewed most favorably to the jury’s verdict (People v. Avila (2009) 46 Cal.4th
680, 701), the evidence at trial showed the following:
       At about 2:30 p.m. on December 18, 2009, David Medina was standing in front of
McKinley Market, where he worked as a clerk. He saw a blue car go by with three men
in it. Minutes later, two of the men, defendant and Cleshawn Brown, came around the
corner of the store. Medina recognized defendant from serving in prison with him.
When he told defendant they had worked in the prison kitchen together, defendant
replied, “No, you got the wrong guy.” Defendant asked whether the store cashed checks
and Medina said he could not unless “the boss” was present. Defendant and Brown
entered the store. Medina walked to the corner of the store and saw the blue car, now
containing only one person, at the very back of the store parking lot. When Medina went
back in the store, defendant said he wanted to buy some gloves that were behind the
counter. Medina, by this time sensing that something was wrong, said he was still on his
break but that “Bob” would help defendant. Medina called to the rear of the store for
Bob, even though he knew no one else was in the store. Shortly afterward, the two men
left the store. Medina followed the men out. When they turned the corner, they
discovered the blue car was no longer there; they appeared confused and continued
walking. Brown testified against defendant. He said defendant told him he had a way to
make some quick money by “do[ing] a lick” at the store, which meant robbing or stealing
from it. He said the men determined Medina knew they were planning to rob the store,
so they left.



                                             2.
       About 3:00 p.m., defendant and Brown entered Discount Liquor and Foods, about
one and a half miles east on McKinley. Inderjit Singh was working at that store.
Defendant pointed a gun at Singh, who was behind the counter, and demanded money.
He threatened to shoot Singh. Singh picked up a knife and defendant and Brown ran into
a corner of the store. Singh traded the knife for a baseball bat and moved toward the
front door of the store. While Singh was trying to open the door, defendant shot him in
the head. The bullet creased the skin above Singh’s ear. Brown shouted “Don’t shoot --
don’t shoot him. Don’t shoot him.” The men fled as Singh tried to telephone for help.
They fled in a blue car. A few minutes later Medina, once again standing in front of
McKinley Market, saw the blue car, now containing the same three men he had seen
earlier, pass by the store at a high rate of speed.
       Defendant was tried on one count of attempted murder (Pen. Code, §§ 664, 187,
subd. (a)) and two counts of attempted second degree robbery (Pen. Code, §§ 664, 211).
The jury found defendant guilty of the two attempted robbery counts, found true
allegations that defendant personally discharged a firearm (Pen. Code, § 12022.53,
subd. (c)) and personally used a firearm (id., subd. (b)) during the commission of one of
the attempted robberies. The jury was unable to reach a verdict on attempted murder and
an associated enhancement allegation; the court declared a mistrial as to that count and
enhancement. Defendant admitted certain prior conviction allegations. At a subsequent
sentencing hearing, the court sentenced defendant to an operative prison term of 25 years
eight months.
                                        DISCUSSION
       A. Additional Facts
       Medina, testifying as a prosecution witness, was impeached with his own felony
conviction. He also testified concerning his prior interaction with defendant as the basis
for his recognition of defendant at the scene. As noted above, Medina testified that
defendant denied knowing him and, during cross-examination by defense counsel,

                                               3.
counsel sought to cast doubt on Medina’s identification of defendant, pointing out
through questioning that Medina did not know defendant’s name and that there were
hundreds of people in Medina’s dormitory at the prison. Brown then testified that
defendant was with him at both stores. A subsequent prosecution witness was Philip
Mounts, who identified himself as a parole agent supervisor. He testified that he had
been “supervising [defendant] closely,” seeing him at least weekly “the last time I was
supervising him.” Mounts testified that he had been shown still photographs taken from
a security video at McKinley Market and that he recognized defendant as one of the
persons in the photographs. Mounts also had defendant’s prison record with him in court
and, based on that record, testified that defendant was at the two prisons where Medina
said he had seen defendant, and that the two men were at the prisons at the same time.
Prior to this testimony by Mounts, defense counsel had moved in limine to exclude the
testimony on the basis it was unduly prejudicial under Evidence Code section 352. The
court denied the motion.
       B. The Court Did Not Abuse Its Discretion
       Defendant does not contend allowing Medina’s testimony about working with
defendant in prison was error (see People v. Beamon (1973) 8 Cal.3d 625, 632), nor does
he contend allowing Mounts’s testimony from the prison records about the dates of
defendant’s incarceration with Medina was error. His contention is that Mounts’s
testimony about the basis for his recognition of defendant in the surveillance tape was
unduly prejudicial: “Whatever slight value was added by Mounts’ identification was
clearly outweighed by the prejudice inherent in his testimony.” Defendant contends:
“Evidence of uncharged acts cannot be used to prove something that other evidence
showed was beyond dispute; the prejudicial effect of the evidence of [defendant’s] parole
status outweighs its probative value to prove that he was the man depicted in the video.”
       As relevant here, the issue under Evidence Code section 352 is whether evidence
otherwise admissible under the Evidence Code must be excluded because the evidence

                                            4.
creates a “substantial danger of undue prejudice.” The question is whether the evidence
prompts an emotional reaction against the defendant that tends to cause the trier of fact to
decide the case on an improper basis. (People v. Hollie (2010) 180 Cal.App.4th 1262,
1277.) Significantly, in this case, the evidence that defendant had been on parole did not
involve testimony about crimes more inflammatory than the charged offenses—in fact,
the testimony disclosed nothing about the reason defendant was on parole. (See People v.
Daniels (2009) 176 Cal.App.4th 304, 316 [listing factors for undue prejudice, including
“‘inflammatory nature of the uncharged conduct’”].) The jury merely learned the rather
generic fact that defendant was on parole at some point. That fact had no prejudicial
effect in the unique facts of this case, because the jury had already learned from other
evidence not contested on this appeal, that defendant had been in prison with Medina.
Thus even though, in the abstract, the fact that a defendant is on, or has been on, parole,
might be prejudicial, here the fact added nothing to the evidence already before the jury
and the prejudicial effect was very low, if it existed at all. Accordingly, the trial court did
not abuse its discretion in concluding any small prejudicial effect of the parole evidence
did not outweigh the probative value of the testimony in establishing the basis for—and
credibility of—Mounts’s identification of defendant from the surveillance video. (See,
e.g., People v. Hollie, supra, 180 Cal.App.4th at p. 1277; see also People v. Ingle (1986)
178 Cal.App.3d 505, 513 [testimony of lay witness concerning identity of person in
surveillance video].)
         C. Sufficiency of the Evidence
         Defendant contends there was insufficient evidence of intent to support the jury’s
conclusion that he was guilty of attempted robbery of McKinley Market. He contends
Brown’s testimony was the only direct evidence of their intent upon entering the store,
and that testimony was that they intended to rob or steal, not that they intended to rob the
store.



                                              5.
       Our standard of review is well-settled: In reviewing a judgment for substantial
evidence, “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.) This standard applies whether direct or circumstantial evidence is
involved. (People v. Avila (2009) 46 Cal.4th 680, 701.)
       In this case, as respondent points out, the intended victim of the robbery, Medina,
happened to be outside the store when defendant arrived. Defendant tried twice to lure
Medina back inside—and specifically to lure him into returning to the cash register area
of the store. If defendant had intended merely to shoplift, defendant would have been
content to have Medina outside. Thus, given Brown’s testimony that they went to the
store intending to either rob or steal, this circumstance reasonably tends to negate the
latter intent. In addition, half an hour after entering McKinley Market, defendant and
Brown entered Discount Liquor and Foods, where they confronted a more favorable
situation, with the clerk standing at the cash register. Defendant pulled a gun and
demanded money from the clerk. This overt attempt to rob the second store within a
short time after the events at McKinley Market is further circumstantial evidence of
defendant’s intent on the earlier occasion. (See People v. Ewoldt (1994) 7 Cal.4th 380,
402; People v. Beamon, supra, 8 Cal.3d at p. 632; People v. Griffin (1967) 66 Cal.2d 459,
464-465.) This evidence amply supports the jury’s verdict on the McKinley Market
attempted robbery charge.
                                      DISPOSITION
       The judgment is affirmed.




                                              6.
