Filed 2/18/14 P. v. Ford and Young CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048952

                   v.                                                  (Super. Ct. No. RIF10003370)

LAMARR GLEN FORD and JOEL                                              OPINION
ANDRE YOUNG,

     Defendants and Appellants.


                   Appeals from judgments of the Superior Court of Riverside County,
Christian F. Thierbach, Judge. Affirmed.
                   Michael B. McPartland, under appointment by the Court of Appeal, for
Defendant and Appellant Lamarr Glen Ford.
                   Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant Joel Andre Young.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff
and Respondent.
              A jury convicted defendant Lamarr Glen Ford of five counts of robbery
(Pen. Code, § 211; counts 4-6, 9, and 13), four counts of false imprisonment (id. § 236;
counts 7, 8, 11, and 12), and one count of assault with a firearm (id. § 245, subd. (a)(2);
count 10), and found true allegations he had personally used a firearm during counts 4, 6,
and 9 (id. §§ 12022.53, subd. (b), 1192.7, subd. (c)(8)), counts 7, 8, and 10 (id. §§
12022.53, subd. (a), 1192.7, subd. (c)(8)). The trial court thereafter found Ford had
suffered one prior strike conviction (id. § 667, subd. (a)) and 17 prior serious felony
convictions (id. §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). It sentenced him
to five consecutive 25-years-to life terms on the robbery convictions, consecutive 10-year
terms on the firearm use enhancements attached to three of the robbery convictions, and a
consecutive five-year term for the prior serious felony enhancement for a total of 160
years to life; the sentence on counts 7, 8, and 10 was stayed under section 654 and
concurrent sentences of 25 years to life were imposed on counts 11 and 12.
              A separate jury found defendant Joel Andre Young had participated in two
of the robberies committed by Ford and convicted him of two counts of robbery (Pen.
Code, § 211; counts 9 and 13), with a true finding he was armed with a firearm during
count 9 (id. § 12022, subd. (a)(1)), and two counts of false imprisonment (id. § 236;
counts 12 and 13). Subsequently, the court determined Young’s prior serious felony (id.
§ 667, subd. (a)) and prior strike conviction true (id. §§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1)), and sentenced him to 14 years in prison, consisting of six years on count 9,
a consecutive one-year term for the attached firearm use enhancement, a consecutive
term of two years on count 13, and a consecutive term of five years on the serious prior
enhancement; concurrent sentences of four years each on counts 11 and 12 were also
imposed.
              Young argues the court erred in denying (1) Ford’s motion to conduct an in
camera review of three officers’ personnel files under Pitchess v. Superior Court (1974)
11 Cal.3d 531 (Pitchess), superseded by statute as stated in City of San Jose v. Superior

                                              2
Court (1993) 5 Cal.4th 47, 51-52, which he joined at trial and (2) his motion under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior strike
conviction. Ford in turn contends the court abused its discretion in and violated his due
process rights by admitting into evidence, over objection, five uncharged robberies he
committed in 1990. Although defendants join in other claims, only Young’s Pitchess
argument applies to both. Finding no error, we affirm the judgments.


                                          FACTS


              Ford and Young are both five feet six inches tall Black males who were 38
years old at the time of the charged offenses. Ford weighed 155 pounds and had a
mustache. Young was five pounds heavier, had a mustache and a goatee, and lived in
Banning, California with Ford’s sister, whom he was dating.
              Between December 2008 and February 2009, a number of armed robberies
of payday loan businesses occurred in Hemet, Banning, and Moreno Valley. The
following facts relate to the counts filed against Ford. We omit facts relating to the
charges alleged against Young due to their irrelevancy to the issues raised in his appeal.


              a. Count 4 (Robbery of Nicole Graves)
              Around 5:45 on December 19, 2008, a Black man wearing “mechanics type
of coveralls,” a wig with dreadlocks past his shoulders with a baseball hat on top,
sunglasses, and possibly a fake beard, entered the Hemet branch of Advance America, a
cash or payday loan business, and approached the counter where Nicole Graves was
working. Holding the gun sideways on the counter, the man pointed it at Graves and
ordered her to “Put the hundreds in the bag” he gave her. The bag was a zippered bag,
similar to the ones banks use for deposits, slightly larger than an envelope and about 5
inches long on one side. After she emptied her register into the bag, the man ordered her

                                             3
to do the same with the other registers. Once she complied and gave him the bag, the
man said, “‘Get on,’” walked out the front door, and got into a white car that had been
left running. A man outside the business took down the license plate of the car and gave
it to the police, who determined it had been reported stolen out of Riverside.
              In February 2009, Graves was unable to identify Ford’s picture in a
photographic lineup. The next day, upon being presented with a different photographic
lineup, Graves said photograph number 4, depicting Young, looked like the robber.
.             Graves first identified Ford as the person who had robbed her at the
preliminary hearing but was not certain. At trial, outside the presence of the jury, the trial
court had both Ford and Young say, “Get on.” Graves then testified before the jury that
based on Ford’s voice, complexion, nose, chin, and cheeks, she was “100 percent” certain
he was the robber. She also positively identified two photographs of Ford as the person
who had robbed her, including one taken in December 2010 which she described as
“identical down to the fake beard, what I thought was a fake beard.”


              b. Count 5 (Robbery of Taneisha McNair)
              On January 14, 2009, another employee of the same Advance America was
robbed. Around 5:45 p.m., a man about five feet five inches or five feet six inches tall,
weighing approximately 150 pounds, and wearing a navy coverall “like the kind
mechanics wear,” a beanie or ski mask, a black hoodie, and gloves, entered the business.
The man laid a gun on its side on the counter and pointed it at customer service
representative Taneisha McNair, and ordered her not to push any buttons and to place all
the money in the register into a money bag or “pencil holder” that he held on the counter.
When she finished, he told her to empty the other register but she told him there was no
money in there. The man took the pouch and the gun, said, “‘Get on,’” then exited the
store and got into a white car parked in front of the business.



                                              4
              McNair told police she could not identify the robber because she could not
see his face but believed he was in his mid-thirties. Nor could she tell whether the robber
was Black, Caucasion, or Hispanic, although she believed the robber was a Black male
based on his voice. At the preliminary hearing, she heard both Ford and Young say,
“‘Get on.’” She told police Young’s voice sounded familiar.
              A few days later, investigating officer Michael Elmore, located the white
car used in December 19, 2008, robbery of Advance America, about three to four blocks
away from the robbery site. The fingerprint found did not match any suspects and police
believed the car had been wiped down.


              c. Counts 6 (Robbery of Shane Shehee), 7-8 (False Imprisonment of Sherri
Mayes and Tim Angelini)
              On February 7, 2009, around 11 a.m., a Black man with some facial hair on
his chin, about five feet five inches tall, weighing approximately 140 to 150 pounds, and
wearing a one piece orange hoodie, a big orange jacket, and a “[b]lack meshy face mask,”
walked into Check into Cash, a payday loan banking institution similar to Advance
America, located in Hemet. At the time, store employee Shane Shehee was helping a
customer at the counter. The man placed a gun on the counter with his hand on it, gave
Shehee a money bag with a zipper like the ones banks use, and told him, “‘Give me the
money, you know the drill.’” After Shehee placed the money from his register into the
bag, the man pointed the gun at him and said to empty the remaining registers. After
Shehee did so, the man ordered everyone into the bathroom in the back of the store and
asked for the surveillance videotape. The man told them to wait 10 seconds before
coming out and left the store. Shehee believed the man was in his mid-thirties and said
something to the effect of “‘get on’” after completing the robbery.




                                             5
             d. Counts 9 (Robbery of Rebecca Young), 10 (Assault with a Firearm on
Jose Alcala), 11-12 (False Imprisonment of Lashaunda Buckley and Katherine Baldwin)
             On February 13, 2009, around 4:15 p.m., a five foot five inches or five foot
six inches tall Black man, weighing between 150-170 pounds and wearing a mechanics
jumpsuit, a mask, a sweatshirt with a hood pulled over his head, and black gloves,
entered an Advance America branch located in Banning. The man walked up to where
store employee Rebecca Young (Rebecca) was helping a customer. He laid a black gun
on its side on the counter aimed at Rebecca, gave her a zippered bag “the size of a money
pouch,” about “four inches wide by six to eight inches in length,” and ordered her to
empty her cash drawer, and then the other registers, into the bag. The man then had
everyone in the store go to the back bathroom and pointed a gun at a customer. The man
then asked for money in the safe, everyone’s cell phones, and the surveillance videotape.
             At both the preliminary hearing and trial, Rebecca testified she did not
recognize anyone because she had not seen the robber’s face. Nor could Rebecca
determine the man’s race, although she described the robber to the police as “a [B]lack
male, possibly Hispanic” based on his voice. She also recognize Ford at trial because he
had entered the Banning Advance America branch a week or two before the robbery to
inquire about a payday loan.


             e. Count 13 (Robbery of Michelle Ramirez)
             Also on February 13, around 5:30 p.m., as employees were preparing to
close up, an approximately five foot four inches tall man, entered a Check into Cash
branch in Moreno Valley wearing dark blue mechanics coveralls, a hoodie over his head,
and a ski mask. He approached employee Michelle Ramirez and told her to put the
money into a money bag he gave her and not to push any buttons. The man’s other hand
was in his pocket and Ramirez believed he might have a gun. At the man’s instructions,
Ramirez emptied her drawer and then the others. The man told the employees, “‘Y’all go

                                            6
in the back’” but did not follow them and left. Ramirez could not determine the robber’s
race.


                                       DISCUSSION


1. Denial of Pitchess Motion
              Ford’s attorney filed a Pitchess motion to discover the personnel records of
police officers Jeremy Bobo, Marcus Futch, and Greg Herrington. Young joined in the
motion. The trial court denied the motion after finding the supporting declaration failed
to show the officers’ alleged misconduct had any relevance to the defense asserted by
Ford and Young. Young, joined by Ford, contends the court erred in so ruling with
respect to Bobo and Herrington without conducting an in camera review of the requested
documents. We disagree.
              To be sufficient, a Pitchess motion must include, among other thing, an
affidavit showing good cause for the discovery of a peace officer’s personnel records
“first by demonstrating the materiality of the information to the pending litigation, and
second by ‘stating upon reasonable belief’ that the police agency has the records or
information at issue.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019
(Warrick).) “[D]efense counsel’s declaration . . . must propose a defense or defenses to
the pending charges” and “articulate how the discovery sought may lead to relevant
evidence or may itself be admissible direct or impeachment evidence [citations] that
would support those proposed defenses.” (Id. at p. 1024.) It must also “describe a factual
scenario supporting the claimed officer misconduct.” (Ibid.) In some circumstances, the
factual scenario “may consist of a denial of the facts asserted in the police report.” (Id. at
pp. 1024-1025.) Such a denial may establish a reasonable inference that the reporting
officer may not have been truthful. (Id. at p. 1022.) But this is not true for all cases.
“What the defendant must present is a specific factual scenario of officer misconduct that

                                              7
is plausible when read in light of the pertinent documents.” (Id. at p. 1025.) We review
the denial of a Pitchess motion for abuse of discretion. (People v. Mooc (2001) 26
Cal.4th 1216, 1228.)
               Here, through his counsel’s declarations, Ford denied involvement in the
charged offenses and asserted Bobo and Herrington “failed to conduct a thorough
investigation into the incident, and may have targeted [him] for improper reasons and
with improper methods,” and “falsely accused” Ford as a result of a “faulty
investigation.” Counsel further declared the officers had “a character for, and habit and
custom of misconduct, fabricating probable cause, planting evidence, giving false
testimony, committing acts of moral turpitude and being dishonest,” and that their
credibility would be with “specific instances of such conduct.” On information and
belief, counsel also asserted “‘a likely issue at trial’ will be [the officers’] use of
excessive force, lack of veracity, possible false arrest, illegal search and seizure, the
fabrication of charges and/or evidence, dishonesty and improper tactics . . . , such as
conduct unbecoming an officer, neglect of duty, and false arrest.” This declaration was
insufficient to support the granting of defendant’s Pitchess motion.
               People v. Thompson (2006) 141 Cal.App.4th 1312 is instructive. The
defendant there was arrested after he sold cocaine to an undercover police officer.
Uniformed officers who were not part of the undercover operation searched the defendant
and found two $5 bills, which were later identified as the bills the undercover officer
gave to the defendant for the cocaine. (Id. at p. 1315.) In a Pitchess motion, defense
counsel asserted the police had arrested the defendant simply because he was in the area
and decided to frame him once they realized he had a criminal history using their cocaine
and money. (Id. at p. 1317.) Thompson affirmed: “This showing is insufficient because
it is not internally consistent or complete. . . . [I]t does not present a factual account of
the scope of the alleged police misconduct, and does not explain [the defendant’s] own
actions in a manner that adequately supports his defense. [The defendant], through

                                                8
counsel, denied he was in possession of cocaine or received $10 . . . . But, he does not
state a nonculpable explanation for his presence in an area where drugs were being sold,
sufficiently present a factual basis for being singled out by the police, or assert any
‘mishandling of the situation’ prior to his detention and arrest. Counsel’s declaration
simply denied the elements of the offense charged.” (Ibid.)
              The declaration of Ford’s counsel is even less sufficient. In Thompson,
defense counsel at least explained what was supposedly false in the police reports and
offered an alternative account, although it was insufficient because he did not support it
with enough explanatory detail. Here, counsel did not provide an alternate version of the
facts underlying the charges against him but rather simply denied the allegations. In
doing so, he did not articulate any plausible, factually specific scenario to explain how
Bobo or Herrington erroneously determined he was a suspect, why they would falsely
accuse him, or in what manner their investigation was faulty. (See Warrick, supra, 35
Cal.4th at p. 1021 [Pitchess discovery “is limited to instances of officer misconduct
related to the misconduct asserted by the defendant”].)
              Defendants maintain “there was a ‘plausible alternative scenario’ that [they
were] entitled to explore, given that credibility is ‘always at issue.’” Mere relevance to
credibility, however, is insufficient to warrant disclosure absent a showing of good cause.
(See California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1023-
1024.) Defendants also assert the officers “used deception as a technique” in
interviewing him. But deception during a police interview is permissible where it is not
“‘“‘of a type reasonably likely to procure an untrue statement’”’” (People v. Williams
(2010) 49 Cal.4th 405, 443) and there is no claim that occurred here. Thus, neither the
use of deception nor defendants’ claim that “what was said before the interview was not”
recorded, “present[ed] . . . a specific factual scenario of officer misconduct,” much less
one “that is plausible when read in light of the pertinent documents.” (Warrick, supra, 35
Cal.4th at p. 1025.)

                                              9
2. Denial of Young’s Romero Motion
               Young moved to dismiss his prior strike conviction, claiming he fell outside
the spirit of the “Three Strikes” law because he (1) was convicted only of being the get-
away driver in two robberies; (2) did not enter the businesses nor personally carry a gun
during the crimes; (3) committed the crime alleged as a strike and his prior serious felony
offense 17 and 13 years ago respectively; (4) had remained free from custody after his
parole in 2001 until his arrest in 2009 for the current offenses; (5) had tried to turn his life
around by working various jobs; and (6) believed he could “still be a productive member
of society.” Young’s father requested leniency to allow his son, who grew up in a
Christian home and “knows the right way” but had “bad judgment,” to “have a chance to
straighten out his life, take care of his wife and his kids, and . . . get his life back on
track.” Young also asked for lenience, as he had “been a law-abiding citizen and a
contributing member to society” “[f]or the past 12 years” and wanted “the opportunity to
become again employed and be able to take care of [his] sick wife, [his] family, and [his]
home.” The court denied the motion.
               Young contends the court’s denial of his Romero motion was an abuse of
discretion. We disagree.
               A trial court has the discretion to strike a prior strike only if the defendant
falls outside the spirit of the three strikes law. (Pen. Code, § 1385, subd. (a); People v.
Williams (1998) 17 Cal.4th 148, 162 (Williams).) The court “must consider whether, in
light of the nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, at p. 161.)
               We will not reverse the ruling on a Romero request unless the defendant
shows the decision was “so irrational or arbitrary that no reasonable person could agree

                                               10
with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) Reversal is
justified where “the trial court was not ‘aware of its discretion’” “to strike a prior felony
conviction allegation” or “considered impermissible factors” to support its refusal to do
so. (Id. at p. 378.) But where the trial “‘court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s
ruling.’” (Ibid.)
              In denying Young’s request to strike a prior strike, the trial court, after
noting Young’s criminal record and the circumstances of the current offenses, could not
“with any degree of intellectual honesty conclude that he falls outside the spirit of the
three-strikes law.” The offenses were “very serious offenses” and although the court
agreed Young “was not the main actor . . . , he was, nonetheless, a willing participant.
While he may have been someone under the domination of . . . Ford, he nonetheless
played a very significant role in the commission of these very serious and indeed violent
offenses.” Accordingly, the court could not and would not conclude Young fell “outside
the spirit of the three-strikes law.” These statements demonstrate the court was fully
aware of its discretion to strike a prior conviction and did not consider impermissible
factors. (Carmony, supra, 33 Cal.4th at p. 378.)
              Young’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop)
is misplaced. First, Bishop, in deferentially reviewing the trial court’s act of striking two
of the defendant’s prior strike convictions, upheld that exercise of discretion. Here, we
deferentially review the court’s denial of Young’s motion to strike his prior strike
conviction. The court considered the proper criteria in ruling on defendant’s motions,
and we may not substitute our own judgment. (Id. at pp. 1250-1251; Carmony, supra, 33
Cal.4th at p. 377.) Second, Bishop predates Williams, supra, 17 Cal.4th 148, and
consequently did not apply the appropriate standard: whether the defendant should be
deemed to fall outside the scheme’s spirit. The court here applied the correct standard



                                              11
and its denial of the motion was not “so irrational or arbitrary that no reasonable person
could agree with it.” (Carmony, at p. 377.)


3. Admission of Ford’s Prior Uncharged Offenses
              Ford contends the court prejudicially erred and violated his due process
rights by admitting evidence he committed five uncharged robberies in 1990 to show
identity and intent. We disagree.


              a. Background
              Before trial, the prosecutor moved to introduce evidence of six uncharged
robberies in which Ford had taken property or money at gunpoint from different victims,
arguing it was admissible under Evidence Code section 1101, subdivision (b) (all further
undesignated statutory references are to this code) to establish intent and identity. Ford
opposed the motion on the grounds the prior offenses were not sufficiently similar to the
present ones to establish they were committed by the same person because the only
similarities were the use of a gun and the crime of robbery and that any relevance was
outweighed by its prejudicial effect given the weak identity evidence against him.
              The trial court found intent was not “much of an issue” because Ford had
pointed a gun at the victims but nevertheless admitted the evidence for that purpose given
that Ford had placed it in dispute by pleading not guilty. Although it determined one
incident “overly prejudicial,” it admitted evidence of the other five, finding the prior
offenses were “sufficiently similar in nature” to the current ones to outweigh any
prejudicial effect under section 352 given the use of a gun to threaten the victims. When
asked by Ford’s counsel if the evidence was being admitted for intent or identity, the
court answered, “Both.” The prosecution presented evidence of the five prior uncharged
robberies and Ford stipulated he suffered five armed robbery convictions as a result.



                                              12
              b. Analysis
              Although section 1101, subdivision (a) prohibits the admission of evidence
of a person’s character to prove a persons conduct on a specified occasion, evidence of
uncharged acts committed by the defendant is admissible to prove some other fact, such
as identity or intent. (§ 1101, subd. (b).) Even where a defendant’s uncharged criminal
conduct is relevant to establish one of these issues, “to be admissible such evidence ‘must
not contravene other policies limiting admission, such as those contained in . . . section
352.’” (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), superseded by statute on
other grounds as stated in People v. Robertson (2012) 208 Cal.App.4th 965, 991.) We
review the trial court’s admission of evidence of uncharged conduct for abuse of
discretion. (Ewoldt, at p. 405.) Even if error in admitting prior crimes evidence under
section 1101 occurred, it is not prejudicial where “it is not reasonably probable that a
result more favorable to defendant would have resulted absent admission of this
evidence.” (People v. Welch (1999) 20 Cal.4th 701, 749-750; People v. Watson (1956)
46 Cal.2d 818, 836.) We conclude any error in the admission of the prior offenses for
purposes of showing intent and identity was harmless.
              Ford is correct that the only real issue was the identity of the robber and
that the respondent’s brief incorrectly cites evidence, i.e., a recording of Young’s
interview by police, presented only to Young’s jury. Nevertheless, besides that evidence
and the evidence of Ford’s uncharged misconduct, sufficient evidence exists to support
Ford’s convictions.
              As to count 4, Graves testified she was “100 percent” sure Ford was the
person who robbed her in December 2008. This was based on his voice when he said,
“‘Get on’” as he left Advance America, as well as his complexion, nose, chin, and
cheeks. The next month, the robber said, “‘Get on’” again as he left the same Advance
America after robbing McNair (count 5). And the month after that, the robber said either
the same thing or something similar after robbing the Check into Cash in Hemet (count

                                             13
6). As the prosecutor noted during closing argument, the phrase “‘Get on’” is not a
common saying. These three robberies all occurred within miles from Ford’s home.
Young’s residence where he lived with Ford’s sister, whom he was dating at the time,
was about five miles away from the Banning robbery and about 17 or 18 miles from that
robbery to the one in Moreno Valley.
              Although only Graves was able to positively identify Ford, the other four
victims described the robber as about five feet four inches to five feet six inches tall and
three of them approximated his weight as between 140 to 170 pounds. All but the last
robbery victim (count 13) described the robber as Black. Ford is a five foot six inch tall
Black man weighing 155 pounds.
              The modus operandi in all five robberies is also similar. All five involved
the same cash or payday loan type business, either an Advance America or a Check into
Cash, a zippered rectangular money bag that the robber handed the victim, and the robber
telling the victim to first empty her or his drawer and then the others into the bag. In all
but the last robbery (count 13), the robber walked into the business, placed a gun
sideways on the counter and aimed at the victim to ensure compliance with his demands.
Once that was done, the robber either left after saying “‘Get on’” or something similar or
ordered everyone into the back before leaving. Additionally, all but one robbery (count
6) occurred in the late afternoon with the robber wearing mechanics overalls. Moreover,
the victim of count 9 (Rebecca Young) recognized Ford as having entered her branch to
inquire about a payday loan, notwithstanding the fact he was unemployed at the time,
from which it could be inferred he was casing the business. A reasonable jury could find
Ford guilty of the five robbery counts based on the evidence presented in this case,
including the similar modus operandi employed in the string of robberies and Graves’s
positive identification of Ford as the perpetrator of the robbery in which she was the
victim.



                                             14
              Ford disregards these similarities and maintains the admission of evidence
of his uncharged offenses was prejudicial because Graves was the sole victim to
positively identify him as the robber in one of the five robbery charges and the remaining
four robbery charges rested on that identification and the prosecution’s theory they had
similar modus operandi. Ford challenges Graves’s identification because (1) she only
had “a limited view of the robber because he was wearing a hood over his head and the
robbery only lasted for a couple of minutes”; (2) Graves failed to identify him in a
photographic lineup containing his photo and did not identify him until a year and a half
later at the preliminary hearing; and (3) McNair (count 5) had indicated at the preliminary
hearing that Young’s voice sounded like the robber’s. All of these contentions, however,
were made by Ford’s counsel during closing argument and rejected by the jury. During
closing argument, Ford also pointed out the physical similarities between Ford and
Young and, on appeal, Ford notes Young had been charged with a robbery involving a
modus operandi similar to the ones Ford was convicted based on the victim’s
identification of Young. But the fact “[t]hat the evidence in some instances might be
reconciled with a contrary finding . . . is not a basis for reversal of any of defendant’s
conviction[s].” (People v. Prince (2007) 40 Cal.4th 1179, 1261.)
              Ford also asserts the jury had doubts about Graves’s identification and
considered this a close case because it asked to see the videotape of the robbery where
she was the victim and the separate photographic lineups containing pictures of Ford and
Young, plus deliberated for a day and a half. He also claims the court’s limiting
instruction “did not explain to the jury that they should not consider the uncharged
offenses to show that [he] had a criminal disposition.” Ford concludes that because the
court instructed the jury it “could consider evidence of [his] uncharged robbery offenses
in determining if [he] was the [one] who committed” them, “the jury would have likely
reasoned that if he did it once, he probably did it this time.” We are not persuaded.



                                              15
              Contrary to Ford’s assertion that the limiting instruction did not explain the
uncharged offenses could not be used to demonstrate his criminal disposition, the court
expressly instructed the jury that it “may but are not required to consider that evidence
for the limited purpose of deciding whether or not [Ford] was the person who committed
the offenses alleged in this case, or whether the defendant acted with the intent required
to commit the robberies in this case. [¶] . . . [¶] Do not consider this evidence for any
other purpose, except for the limited purpose of identity and the intent of the perpetrator.
[¶] Do not conclude from this evidence that [Ford] has a bad character or is disposed to
commit a crime. [¶] If you conclude that [Ford] committed the uncharged offenses, that
conclusion is only one factor to consider, along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of the robberies charged in this
case. The People must still prove each charge beyond a reasonable doubt.” (Italics
added.) “The presumption is that limiting instructions are followed by the jury.
[Citation.] That presumption is not rebutted here.” (People v. Waidla (2000) 22 Cal.4th
690, 725.)
              The jury’s request to see the videotape and photographic lineups and the
length of its deliberations demonstrates it convicted Ford only after carefully
contemplating the evidence including Graves’s identification and resolving the issue
against Ford. Nothing in the record suggests the jury considered Ford’s prior uncharged
offenses for any purposes other than intent or identity. That the jury asked to review
certain evidence shows it did not blindly base its verdicts on Ford’s propensity to commit
crimes but instead carefully took into account all of the relevant evidence as instructed by
the court. Thus, it is not reasonably probable that a verdict more favorable to Ford would
have resulted if the evidence of the uncharged misconduct had been excluded. (People v.
Watson, supra, 46 Cal.2d at p. 836.)




                                              16
                                  DISPOSITION


            The judgments are affirmed.




                                               RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




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