Filed 8/27/13 P. v. Guy CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061686

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN262049)

MICHAEL GUY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Harry M.

Elias, Judge. Affirmed.

         Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Michael P.

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted defendant and appellant Michael Guy of numerous counts of

robbery arising out of three commercial armed robberies that took place in May 2009.
(Pen. Code,1 §211; counts 1-4, 9-11.) The jury also convicted Guy of related counts of

false imprisonment of employees at the stores. (§§ 236 & 237, subd. (a); counts 6-8, 13-

15.) As to each conviction, it was found true that Guy personally used a firearm within

the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b).

However, Guy was acquitted of two counts of kidnapping employees for robbery.

(§ 209, subd. (b)(1); counts 5, 12.)

       After a court trial, all the prior conviction allegations against Guy were found true.

(§§ 667.5, subd. (b) & 668, prison priors; §§ 667, subd. (a)(1), 668 & 1192.7, subd. (c),

serious felony priors & strike priors, §§ 667, subds. (b)-(i), 668 & 1170.12.) The court

sentenced Guy to a prison term of 105 years to life, and he appeals.

       At trial, the jury heard evidence on the charged robbery offenses, and also a

fourth, uncharged robbery. Guy presented a defense of duress by a fellow participant in

three of the four robberies. On appeal, he contends the trial court prejudicially erred by

admitting evidence of the uncharged robbery for purposes of proving his intent to rob and

the existence of a common plan, as well as motive and identity. Guy contends that the

claimed similarities between the uncharged robbery and the charged offenses were not

sufficiently distinctive to be admissible to prove identity, intent, or a common plan. He

further seems to argue the evidence of the three sets of charged offenses should not have

been allowed cross-admissibility.




1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
        Guy's claims are not supported by the record and we affirm the judgment of

conviction.

                                              I

   INTRODUCTION: MAY 16, 2009, ROBBERY OF ENCINITAS CVS PHARMACY

        On May 16, 2009, Guy was arrested in connection with a robbery at an Encinitas

CVS pharmacy. Around 2:00 a.m. on May 16, 2009, he and another man entered the

store and demanded that an employee open the store safe. One man wore a mask and

carried a silver gun. The employee opened the cash registers and the two robbers took

money. They took two other employees to the back of the store and duct taped their

hands and/or ankles, and then took the first employee there and restrained him.

        While leaving the store through the emergency exit, Guy and his companion

triggered an alarm. Although Guy attempted to escape, the car taking him from the scene

crashed. Police apprehended Guy, but not his companion. Police searched the car and

found a revolver, cash, a cell phone, and some CVS products with security devices on

them.

        Guy told investigators that he and a friend had entered the store to buy liquor, but

decided to take it. When confronted, he decided to commit the robbery.

        After being in jail for a day, Guy called his family and asked them to call police to

reinterview him, and he explained that he had been coerced by Lawrence Humes into

participating in not only the Encinitas CVS robbery, but also another CVS robbery and an

AutoZone robbery on May 15.



                                              3
      Investigation disclosed that Guy's cell phone records placed him near the Encinitas

CVS pharmacy around the time of the robbery. Guy's cell phone had a missed call from

Humes. The police found Humes about a week later and arrested him at a hotel room,

where they found he had a silver revolver.

      At trial, none of the employees was able to identify Guy as one of the robbers.

(Counts 9-15.)

                                             II

              ADDITIONAL CHARGED AND UNCHARGED OFFENSES

                 A. May 4, 2009, Kragen Auto Store Charged Offense

      Evidence presented at trial showed that at closing time on May 4, 2009, Guy

entered the Kragen Auto Parts store on Convoy Street and asked for a product. One of

the employees helped Guy while the other went to the store's back room. Suddenly, Guy

pulled a gun on the employee who was helping him and demanded money from the cash

register. After obtaining $420, Guy demanded that the employee open the safe. When

the employee said he did not have the combination, Guy left, telling the employee not to

look at him. Guy was wearing a black hooded sweatshirt. Neither employee looked

outside or saw any accomplice. Both employees identified Guy in a line-up and in court.

      Investigation of cell phone records showed calls near the Kragen store were made

from both Guy's cell phone and Humes's cell phone, at around the time of the robbery.

(Count 1.)




                                             4
                  B. May 15, 2009, AutoZone Store Charged Offenses

      Evidence presented at trial showed that at closing time on May 15, 2009, two

armed robbers entered a Mira Mesa AutoZone store after it closed for the night. The

robbers had a silver revolver and possibly another gun. They found three employees, tied

up two of them with "zip ties" and duct tape, and then had the third employee open the

safe. They took money and then tied up the third employee.

      At trial, the employee who had opened the safe was able to identify the robbers as

the same people in store surveillance photographs, but in court, he was unable to identify

Guy as one of them. Another employee was able to identify Guy in court as one of the

robbers. Cell phone records showed Guy's cell phone was active near the AutoZone store

at around the time of the robbery. (Counts 2-8.)

           C. May 5, 2009, CVS Pharmacy in Murrieta (Uncharged Offenses)

      Evidence presented at trial showed that at around 2:00 a.m. on May 5, 2009, Guy

and a companion arrived at a CVS pharmacy in Murrieta. Going inside, they showed an

employee a silver revolver, and told her to give them money from the registers and a safe,

which she did (approximately $6,000). As she cried, Guy tied her up with duct tape, next

to another restrained employee. Guy and his companion left.

      Both women employees identified Guy in court, and said he had been wearing a

black hooded sweatshirt. Telephone records placed Guy's and Humes's cell phones near

the Murrieta CVS pharmacy at around the time of the robbery.




                                            5
                                             III

                PRESENTATION AT HEARING ON MOTION IN LIMINE

       Before the jury was selected, the court heard the prosecutor's motion in limine

seeking to introduce testimony about other robberies against different stores and

employees, to prove a common scheme or plan, to show identity, and to establish intent.

(Evid. Code, § 1101, subd. (b).) This evidence would include the three charged offenses

and also the uncharged robbery on May 5, 2009, at the Murrieta CVS pharmacy.2

       Because the trial court had to make a discretionary decision before trial on

whether to admit such "other crimes" evidence, we evaluate its exercise of discretion by

considering the record before the trial court when it made its ruling. (People v. Lewis

(2001) 25 Cal.4th 610, 637; People v. Lindberg (2008) 45 Cal.4th 1, 23 (Lindberg); see

Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) We examine the

grounds offered by the prosecutor in the motion and at the argument. First, the

prosecutor referred to the "striking similarities" between the four sets of offenses, as

establishing a common scheme or plan, showing identity, and establishing intent. The

prosecutor intended to argue to the jury that the entire body of evidence to be presented

about both the charged and uncharged crimes evidence was probative of the charged

counts.

       At the hearing, the prosecutor argued that both robberies of auto parts stores

occurred around 9:00 p.m. at closing time, and both CVS robberies occurred a few hours



2      The Murrieta robbery was being prosecuted separately in Riverside County.
                                              6
later, around 2:00 a.m. on the following day. The robber's clothing (black hooded

sweatshirt) appeared to be similar in the security videos from the Kragen auto parts store

and the Murrieta CVS pharmacy. Also, in the other two-person robberies, the

perpetrators used the same modus operandi as in the Murrieta CVS robbery, by

apprehending the employees, duct taping them, putting them in a certain place in the

store, taking one to the register for pulling money out, and then taking off. The

prosecutor argued that the evidence of the uncharged Murrieta CVS robbery would not

unduly consume court time, because only two witnesses were needed. The prosecutor

also referred in argument to the cell phone data that placed both Guy and Humes at the

site of the first auto parts store robbery, as well as near the next three robberies.

       At the hearing, defense counsel objected to the admission of the uncharged

Murrieta CVS robbery evidence, as creating a trial within a trial, being highly prejudicial

and unnecessary for this particular case. The court then ruled that the Murrieta CVS

robbery evidence would be admissible under Evidence Code section 1101, subdivision

(b) as it went to motive and modus operandi, as well as identity. With respect to the three

charged offenses, the court found that cross-admissibility was proper because of the

similarity of the fact pattern and timing, to show motive and identity.

       As we will further discuss, even though the prosecutor had orally argued that the

trial court could take into account the cell phone evidence and the evidence of Guy's

similar clothing as seen on two of the surveillance videos, the trial court's ruling does not

expressly mention those criteria as supporting admission of the uncharged offense

evidence or cross-admissibility. Nor did the ruling expressly mention the establishment

                                               7
of intent as a ground for admission of the evidence of other offenses, although the

prosecutor had argued that theory as well. (See People v. Ervine (2009) 47 Cal.4th 745,

779 (Ervine) [to be cognizable on appeal, a theory of admissibility must have been

presented at trial; alternatively, the basis for it must be in the record].)

                                               IV

                      THE DEFENSE CASE; VERDICT; JUDGMENT

       At trial, Guy testified that he owed Humes money for a failed drug production

deal. Humes threatened to harm Guy and his family unless Guy participated with him

and another man in three of the robberies. Even though Guy unwillingly participated, he

did not intend to rob the employees or the stores.

       After instructions and deliberations, the jury convicted Guy of all the robbery

charges and those of false imprisonment. The court found true the prison and strike

priors and sentenced Guy to a total term of 105 years. He appeals.

                                               V

                                    ISSUES PRESENTED

                               A. Applicable Legal Principles

       Evidence Code section 1101, subdivision (b), authorizes admission of evidence of

uncharged crimes to prove some fact, other than propensity, "such as motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident . . . ." (Ibid.; Evid. Code, § 1101, subd. (a) [prior criminal act normally not

admissible to prove conduct].) The admissibility of uncharged crimes depends on:

" '(1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged

                                                8
crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion

of the evidence.' " (People v. Kelly (2007) 42 Cal.4th 763, 783; People v. Ewoldt (1994)

7 Cal.4th 380, 402 (Ewoldt).)

       Circumstances in which evidence of uncharged crimes may properly be admitted

are described in Lindberg, supra, 45 Cal.4th 1, 23: "When the prosecution seeks to prove

the defendant's identity as the perpetrator of the charged offense with evidence he had

committed uncharged offenses, the admissibility of evidence of the uncharged offenses

turns on proof that the charged and uncharged offenses share sufficient distinctive

common features to raise an inference of identity. A lesser degree of similarity is

required to establish the existence of a common plan or scheme and still less similarity is

required to establish intent. [Citations, including Ewoldt, supra, 7 Cal.4th 380, 402-

403.]" (Italics added.)

       In evaluating the admissibility of "other crimes" evidence on the issues of identity,

motive and intent, a trial court must "carefully review each count in light of the alleged

'other crimes' evidence to determine its probativeness to prove a material fact other than

criminal disposition and then . . . weigh its probative value against its prejudicial effect

before it is admitted." (People v. Armstead (2002) 102 Cal.App.4th 784, 793-794; Evid.

Code, §§ 1101, subd. (b), 352; Ewoldt, supra, 7 Cal.4th at p. 404.)3




3     Evidence Code section 352 provides: "The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, or confusing the issues, or of misleading the jury."
                                              9
       The weighing process under Evidence Code section 352 "depends upon the trial

court's consideration of the unique facts and issues of each case, rather than upon the

mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th

1301, 1314.) We review the trial court's rulings in this context for any abuse of

discretion. (People v. Lewis, supra, 25 Cal.4th 610, 637; see Alcala, supra, 43 Cal.4th

1205, 1220 [an evaluation of a trial court's exercise of discretion considers the record

before it when the ruling was made].)

                            B. No Forfeiture of Appellate Claims

       Guy challenges his convictions by arguing the trial court erroneously allowed

admission of evidence about the uncharged robbery, because the similarities between it

and the charged robberies were not sufficiently distinctive to show identity, intent, or a

common plan, and only generic similarities were shown: e.g., the use of duct tape to

restrain employees and the hour of the day when the robberies occurred. (Evid. Code,

§ 1101, subd. (b); see People v. Rivera (1985) 41 Cal.3d 388, 393 ["signature" acts

required].) Guy points out that zip ties were used in only one of the four robberies, and a

mask was used in only one of the four robberies. He claims the uncharged offense was

particularly inflammatory evidence, since the employees in that case were women and

one of them cried during the ordeal. (Ewoldt, supra, 7 Cal.4th at pp. 404-405.)

       Guy asserts his counsel's objections were adequate to protect his right to appeal

(i.e., creating a trial within a trial, being highly prejudicial, unnecessary for this particular

case). If those objections were not adequate, he argues we should examine the appellate

issues under a Sixth Amendment assistance of counsel analysis.

                                               10
       In response, the Attorney General appears to concede that the defense objection

below was adequate to preserve the issues for appeal, but argues that in any case, there

was no error, or any error was harmless. We agree that although the objection was quite

general in nature, the parties and the trial court were well aware of the nature of the

problem and had all the necessary tools to analyze it. There is no justification for treating

this as a forfeiture case, and we look at its merits.

                                     C. Scope of Review

       Guy strenuously argues that the trial court's ruling does not expressly mention the

establishment of intent as a ground for admission of the evidence of other offenses, and

therefore the ruling cannot be upheld on that ground. Guy also objects to any

consideration of the cell phone evidence and the evidence of Guy's similar clothing as

seen on two of the surveillance videos, as supporting admission of the uncharged offense

evidence, again because the ruling does not expressly rely on those grounds. (See Ervine,

supra, 47 Cal.4th 745, 779 [to be cognizable on appeal, a theory of admissibility must be

presented at trial, or at least a basis for the theory must be apparent in the record].)

       Alternatively, Guy seems to make some kind of instructional error argument

(without calling it that), by contending that the jury was given CALCRIM No. 375 on the

proper usage of evidence of an uncharged offense to prove identity, intent, etc., and this

somehow served to expand the purposes for which the uncharged offense evidence could

properly be used. The record does not include any specific objection to the language

including intent in this jury instruction. Guy argues that the trial court's in limine ruling

must be restricted to its original grounds, motive and identity, and any additional use of

                                              11
the uncharged offenses to prove intent would be improper. However, he also admits that

the trial court's decision is reviewed on appeal based on the facts known to the trial court

when the ruling was made. (See People v. Lawson (2005) 131 Cal.App.4th 1242, 1249

[potential effect of evidentiary error upon a defendant's decision to testify].)

       On appeal, most of Guy's argument deals with the uncharged crimes evidence, and

it is not entirely clear from the briefs whether he continues to object that the trial court

should not have allowed the evidence about the three charged robberies to be cross-

admissible, for proving one another. On both types of evidence, the prosecution's motion

in limine presented the trial court with several theories of admissibility, common scheme

or plan, identity, and intent. The prosecutor argued for admissibility of the entire body of

evidence that would be presented, both the charged and uncharged crimes evidence, as

probative of the charged counts (due to "striking similarities" between the four sets of

offenses). Moreover, the prosecutor orally argued the probative effect of the similarity of

the cell phone data that was related to the various charges, as well as the similarity of

clothing in the surveillance videos. There is no indication the trial court rejected those

criteria in making the ruling. Instead, the court expressly relied on the explanation given

by the prosecutor, while designating the "most significant factor" as the similarity among

the various fact patterns and timing of the various offenses, to prove modus operandi and

motive.

       We consider the grounds expressly relied upon in the ruling but additionally, are

not foreclosed from considering the trial court's exercise of discretion at that time in light

of all the theories presented to it, which clearly included intent. As the trial progressed,

                                              12
Guy's defense of duress further highlighted the issue of his intent during the incidents. In

any event, there was an adequate basis in the record for each of those theories of

admissibility. (Ervine, supra, 47 Cal.4th 745, 779.)

       Moreover, Respondent's brief essentially concedes that the theory about a common

scheme or plan is not as strong as the identified grounds for admission, identity and

motive. (Ewoldt, supra, 7 Cal.4th 380, 402-403 [lesser degree of similarity among the

uncharged and charged acts required for common scheme or plan].) We need only

address in detail the purposes of proving identity and intent as justifications for

admissibility of this evidence.

                                             VI

                                         ANALYSIS

                                         A. Identity

       The prosecutor argued the evidence was admissible to prove identity under

Evidence Code section 1101, subdivision (b), because the crimes shared numerous

distinctive features that were similar. On appeal, Guy argues the crimes were not

identical and involved only a series of extremely generic acts (duct tape use, timing of

robberies) that in no way constituted "signature" acts that would have identified a single

perpetrator. (People v. Rivera, supra, 41 Cal.3d 388, 393.) Moreover, the Kragen

robbery was unique because only a lone man committed it, without a mask and without

restraining any employees. The Mira Mesa AutoZone robbery by two men did not

involve a mask and uniquely involved zip ties, as well as duct tape. The Encinitas CVS



                                             13
robbery uniquely involved a mask or bandanna. The Murrieta CVS robbery was different

because there were female victims.

       Nevertheless, both the uncharged offenses and the charged acts involved robbery

at gunpoint and moving employees around, to obtain money from store registers or safes,

and three out of four incidents included a coperpetrator. The closing time auto store

robberies, followed by 2:00 a.m. CVS robberies some driving distance away, formed

some kind of pattern that was distinctive in nature and raised an inference of identity.

(People v. Medina (1995) 11 Cal.4th 694, 748 [admissibility depends upon proof that the

various offenses shared distinctive common marks sufficient to raise an inference of

identity].) Here, the uncharged offense evidence had a strong tendency toward proving

the identity of the perpetrator, a material issue, and there were enough common features

or similarities to justify its admission for that purpose (same types of commercial targets,

same sequence of events within the store, use of a gun, same time frame, same driving

vicinity). (Ibid.; People v. Carpenter (1997) 15 Cal.4th 312, 378-379 (Carpenter);

Lindberg, supra, 45 Cal.4th 1, 21-22.)

       Further, Guy has not pointed to any rule or policy that should have required

exclusion of that evidence. (Carpenter, supra, 15 Cal.4th 312, 378-379.) As compared

to the manner in which the charged robberies took place, the court could permissibly

conclude there was no excessively inflammatory effect in admitting the evidence about

the uncharged robbery, even though the victims in that case were female. The evidence

had a significant tendency to prove the facts of modus operandi and identity, as expressly



                                             14
stated by the trial court. The evidence was not unduly remote or dissimilar, nor was its

presentation unduly burdensome in terms of trial time.

                                          B. Intent

       To be relevant on the issue of intent, uncharged crimes need to be sufficiently

similar to a charged offense to support an inference that the defendant probably harbored

the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371; Ewoldt,

supra, 7 Cal.4th 380, 402 [least degree of similarity required to establish intent].)

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.) By pleading not guilty, Guy placed into dispute all the elements of the

robberies and other charges, as of the outset of trial, when the challenged evidentiary

ruling was made.

       Later, Guy placed the issue of his intent to rob in further dispute, through his

defense of duress, and the jury instructions properly addressed that defense. In

CALCRIM No. 375, regarding other crimes evidence, the jury was told the evidence had

been admitted for a limited purpose, not to prove the defendant's predisposition to

commit crimes, but rather to determine whether the necessary element of intent to rob

was proven. This effectively eliminated any danger of confusing the issues or misleading

the jury. (Evid. Code, § 352.) No defense objections to the instruction have been called

to our attention, and "we presume the jury followed these instructions." (Lindberg,

supra, 45 Cal.4th 1, 25-26.)



                                             15
       We conclude these uncharged crimes were sufficiently similar to the charged

offenses to support and allow inferences that Guy probably demonstrated and had the

same intent to rob store employees in each instance. (People v. Kipp, supra, 18 Cal.4th

349, 371; Alcala, supra, 43 Cal.4th 1205, 1220 [trial court's exercise of discretion is

viewed in light of the record before the trial court when ruling was issued].) Since there

was no error or undue prejudice in the admission of this evidence for the purposes that

were presented to the trial court, no harmless error analysis is appropriate. (See People v.

Walker (2006) 139 Cal.App.4th 782, 808 [" 'the erroneous admission of prior misconduct

evidence does not compel reversal unless a result more favorable to the defendant would

have been reasonably probable if such evidence were excluded.' "].)

                                      DISPOSITION

       The judgment is affirmed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



                      HALLER, J.


                  McDONALD, J.




                                             16
