Filed 8/4/16 P. v. Scarff CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E062827

v.                                                                      (Super.Ct.No. INF1200638)

JUSTIN RYAN SCARFF,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Ronald L. Johnson,

Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

                                                             I

                                                INTRODUCTION1

         Defendant Justin Ryan Scarff attacked an elderly man and his wife in their home.

A jury convicted defendant of five offenses: (1) attempted murder (§§ 664/187); (2)


         1   All statutory references are to the Penal Code unless stated otherwise.

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home invasion robbery (§§ 211, 212.5, subd. (a)); (3) attempted first degree robbery

(§§ 664/211, 212.5, subd. (a)); and (4) and (5) two counts of assault with a deadly

weapon (§ 245, subd. (a)(1).) The jury found on three counts (1, 3, and 4) defendant

personally inflicted great bodily injury on a person 70 years of age or older. (§§ 1192.7,

subd. (c)(8), 12022.7, subd. (c).) The jury found that defendant did not act with

premeditation and deliberation in committing attempted murder. The court found

defendant had a prior strike conviction and sentenced him to prison for 33 years four

months.

       On appeal, defendant challenges the court’s admission of testimony based on a

suggestive photographic lineup. Defendant also contends the court allowed improper

argument by the prosecutor and unfairly curtailed defendant’s closing argument, as well

as committing several sentencing errors. Based on our review, we affirm the judgment

with a modification of defendant’s sentence.

                                             II

                                         FACTS

       On March 17, 2012, at 4:30 p.m., Leonard Kaplan, age 76, was walking his dog in

a gated community in Palm Springs when he saw defendant, whom he did not know.

Defendant followed Kaplan home to his garage and confronted him, demanding money.

Kaplan said he had no money. Defendant first threatened Kaplan, then he seemed to be

leaving before he announced, “I’m going to do it,” and stabbed Kaplan with a knife in the

face and neck. Kaplan tried to defend himself but, as they struggled, Kaplan fell to the

floor and defendant kicked him in the face and chest.

                                             2
       Defendant stopped attacking Kaplan and entered the house where he confronted

Kaplan’s wife, Gail Holtzman, in the bedroom. Still holding the knife, defendant

demanded money. Defendant grabbed Holtzman’s shirt and dragged her into the

hallway, where she slipped and fell. After defendant released her, she ran quickly to the

alarm system panel but she could not remember the panic code. Defendant grabbed her

again and she fell in the den. Defendant snatched her handbag and knitting bag and fled

the house.

       Holtzman went into the kitchen and found her husband covered in blood and

holding the phone. He could not call 911 because blood obscured his vision. Holtzman

called 911 and accompanied Kaplan to the hospital.

       Kaplan and Holtzman’s neighbors, David Brastauskas and his husband, saw

defendant outside their house, heard their garage door rattling, and called 911. Another

pair of neighbors were Robert Stroney and William Hass, who spotted defendant outside,

“casing the joint.” Then Stroney watched defendant change his clothes and place his

discarded clothes in the trash barrel. Stroney observed defendant’s tattoos and called

911. Hass went outside and chased defendant away.

       The police arrived and found Holtzman’s handbag and knitting bag in the recycle

bin. The police apprehended defendant on a bus, wearing clothes and carrying a duffel

bag, matching the description given by Stroney. Kaplan’s DNA was detected on

defendant’s ear, his shoelaces, and on a dollar bill on his person.

       Defendant denied attacking Kaplan or Holtzman. Instead, he provided an

elaborate and detailed alibi in which he claimed he and his girlfriend had engaged in a

                                              3
bloody fight on March 16. The next day he performed some tattooing from 1:00 p.m.

until 3:40 p.m. and waited for his girlfriend to pick him up, finally deciding to take a bus

at 5:00 p.m. Defendant was tying his shoelaces at the bus stop when a “Mexican”

stranger, wearing a black Raiders jacket tripped on him and they began fighting. The

stranger dropped some money on the ground and ran away. Defendant picked up the

money.

       When he was arrested, defendant told the police about being knocked down but he

did not speak about the fight. He explained he was not carrying any tattoo equipment

because his client had his own equipment. Defendant thought the blood on his ear was

from the fight with his girlfriend.

       Robert Mirkovic testified that defendant had done tattoo work for him on the

afternoon of March 17, using Mirkovic’s tattoo gun. They finished about 4:30 p.m.

Defendant’s girlfriend arrived but left after arguing with defendant. Mirkovic saw a

person in a black Raiders jacket knock defendant over while he was tying his shoe. They

scuffled briefly and defendant ran off to catch a bus.

       Other relevant facts will be discussed in the body of the opinion.

                                             III

                                  RESTITUTION FINES

       Defendant argues the court violated due process when it imposed a $10,000

restitution fine and a $10,000 parole revocation restitution fine as recommended in the

probation report. He argues the fines were not explicitly discussed during his sentencing

hearing. Therefore he was not accorded his constitutional right to a hearing. This

                                              4
argument fails because defendant had notice of the proposed fines in the probation report

and he did not object to the fines at the sentencing hearing. (People v. Williams (1997)

16 Cal.4th 153, 250; People v. Scott (1994) 9 Cal.4th 331; People v. Blankenship (1989)

213 Cal.App.3d 992, 997-998.) Additionally, such fines are mandatory or a sentence is

invalid. (People v. Hudson (2003) 113 Cal.App.4th 924, 929.) The trial court has

discretion in imposing the fines but no express findings or separate hearing was required.

(§§ 1202.4, 1202.45; People v. Romero (1996) 43 Cal.App.4th 440, 448-449.)

                                            IV

                                        COUNT 3

       Defendant next contends his sentence on count 3 for attempted robbery of Kaplan

should have been stayed rather than imposed consecutively to his sentence on count 1 for

attempted murder of Kaplan.

       Section 654 precludes multiple punishments for “a course of conduct which

violated more than one statute but nevertheless constituted an indivisible transaction.”

(People v. Perez (1979) 23 Cal.3d 545, 551.) However, where the trial court finds a

defendant entertains multiple and independent criminal objectives, separate punishments

are permitted for crimes which would otherwise constitute an indivisible course of

conduct. (Ibid.) The reviewing court employs a deferential standard of review of the

trial court’s findings based on substantial evidence. (People v. Hutchins (2001) 90

Cal.App.4th 1308, 1312-1313.)




                                             5
       At the sentencing hearing, the trial court denied defendant’s request to stay his

sentence on count 3 and imposed the sentence consecutively.2 Substantial evidence

supports the trial court’s findings. Although the attempted robbery and murder of Kaplan

were close temporally, the facts demonstrate defendant had different criminal objectives.

(People v. Coleman (1989) 48 Cal.3d 112, 162.)

       When defendant followed Kaplan into the garage, he first demanded money but

then defendant seemed to be leaving before he changed his mind and began stabbing

Kaplan. Defendant’s murder attempt was a separate and independent act not necessary to

effect the robbery. (People v. Coleman, supra, 48 Cal.3d at pp. 162-163; People v.

Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300.) As in Sandoval, defendant attempted

to rob Kaplan who was uncooperative. The attempted robbery was complete at this point.

It was only after this that defendant apparently determined for his own purposes to punish

Kaplan or “to assuage his own thwarted desires by seeking other and different

gratification” by stabbing Kaplan with absolutely no provocation. (Ibid.)

       In these circumstances, the rule has been clearly set out: “[A] separate act of

violence against an unresisting victim or witness, whether gratuitous or to facilitate

escape or to avoid prosecution, may be found not incidental to robbery for purposes of

section 654.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) The stabbing was a

much more extreme act than was reasonably necessary to accomplish the original robbery


       2 We agree with the parties that defendant’s sentence of two years eight months
on count 3 should be corrected to a sentence of 16 months. (People v. Mitchell (2001) 26
Cal.4th 181, 185-187.)

                                             6
offense. (People v. Cleveland (2001) 87 Cal.App.4th 263, 272.) Each crime deserved a

separate punishment and therefore section 654 does not apply.

                                              V

                                PROSECUTORIAL ERROR

       At the conclusion of his rebuttal argument, the prosecutor asked the jury to

contemplate Kaplan “on that garage floor with blood pouring out of his face” and urged

the jury to find defendant guilty of attempted murder. The court overruled defense

counsel’s objection based on prosecutorial misconduct. The prosecutor defended his

comment, arguing he was entitled to argue the facts, which showed defendant was serious

in his attempt to kill Kaplan. On appeal, defendant renews his objection to the

prosecutor’s comment, arguing it improperly appealed to the passions of the jurors and

constituted reversible state law error and violated federal due process.

       Defendant relies on cases holding it is improper to inflame the passions of the

jury: “‘“It is, of course, improper to make arguments to the jury that give it the

impression that ‘emotion may reign over reason,’ and to present ‘irrelevant information

or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an

irrational, purely subjective response.’ [Citation.]”’ (People v. Redd (2010) 48 Cal.4th

691, 742.) ‘It has long been settled that appeals to the sympathy or passions of the jury

are inappropriate at the guilt phase of a criminal trial.’ (People v. Fields (1983) 35

Cal.3d 329, 362.) [¶] Our Supreme Court has never departed from the opinion that

‘During the guilt phase of a capital trial, it is misconduct for a prosecutor to appeal to the

passions of the jurors by urging them to imagine the suffering of the victim. “We have

                                              7
settled that an appeal to the jury to view the crime through the eyes of the victim is

misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of

place during an objective determination of guilt.”’ [Citations.]” (People v. Vance (2010)

188 Cal.App.4th 1182, 1192; People v. Lopez (2008) 42 Cal.4th 960, 969-970.)

       Here, however, the prosecutor’s comment was proper as a fair comment on how

the evidence demonstrated that defendant intended to attempt to kill Kaplan. (People v.

Ward (2005) 36 Cal.4th 186, 215.) The prosecutor did not urge the jurors to imagine

Kaplan’s suffering. Rather the prosecutor asked the jurors to consider the seriousness of

defendant’s attack upon Kaplan, which left him bleeding on the garage floor, a fact that

was corroborated by the photographic evidence of Kaplan’s injuries.

       It is unlikely the jury misconstrued the prosecutor’s comment or that any error was

prejudicial. (People v. Fields, supra, 35 Cal.3d at p. 363.) The evidence was

overwhelming against defendant. Defendant was a young man who attacked a vulnerable

elderly man and caused significant injuries. Many witnesses identified defendant as the

perpetrator and Kaplan’s DNA was found on defendant’s person. Additionally, the jurors

were instructed that bias, sympathy, prejudice or public opinion should not influence the

jury’s decision and statements by the attorneys was not evidence. (CALCRIM Nos. 101

and 222.) It is presumed the jury followed its instructions. (People v. Sandoval (2015)

62 Cal.4th 394, 422.) The jury also did not find defendant acted with premeditation and

deliberation, suggesting the jury was not influenced by emotion or passion. We conclude

there was no prosecutorial error and hence no due process violation.



                                              8
                                             VI

                    DEFENSE COUNSEL’S CLOSING ARGUMENT

       The parties gave their closing argument on Monday morning, September 22, 2014.

The reporter’s transcript records 21 pages of closing argument by the prosecution and 34

pages of closing argument by the defense. According to the minute order for that day,

defense counsel gave his closing argument between 10:33 a.m. and 12:07 p.m. The court

had interrupted him at one point to tell him he should finish by noon. In denying

defendant’s motion for a mistrial, the court observed that defense counsel seemed to be

deliberately delaying by rehashing and repeating his points. The court also found defense

counsel had argued effectively in the final 10 minutes and defendant’s rights had not been

violated.

       On appeal, defendant again argues the trial court erred by limiting defense

counsel’s closing argument to about one and one-half hours. The People contend the trial

court did not abuse its discretion but the error, if any, was harmless.

       “A criminal defendant has a well-established constitutional right to have counsel

present closing argument to the trier of fact. (People v. Marshall (1996) 13 Cal.4th 799,

854.) ‘[The] right is not unbounded, however; the trial court retains discretion to impose

reasonable time limits and to ensure that argument does not stray unduly from the mark.’

(Ibid.)” (People v. Benavides (2005) 35 Cal.4th 69, 110.) The trial judge may control the

duration and scope of closing argument: “He [or she] may limit counsel to a reasonable

time and may terminate argument when continuation would be repetitive or redundant.

He may ensure that argument does not stray unduly from the mark, or otherwise impede

                                              9
the fair and orderly conduct of the trial. In all these respects he must have broad

discretion.” (Herring v. New York (1975) 422 U.S. 853, 862.) Even if the trial court

abuses its discretion, the error must be prejudicial. (People v. Stout (1967) 66 Cal.2d

184, 200.)

       The evidence in this case was not very complicated. In his primary argument,

defendant did not dispute the facts of the attack. Instead, defendant claimed he was

wrongly identified and, in his closing argument, defense counsel thoroughly attacked the

credibility and reliability of the identifications made by the two victims and the other

witnesses. Defense counsel also emphasized repeatedly that the police conducted a

sloppy investigation. Therefore, when defendant’s closing argument became repetitive,

the trial court had ample justification for limiting defense counsel’s argument. (People v.

Stout, supra, 66 Cal.2d at p. 200, citing People v. Fernandez (1906) 4 Cal.App. 314, 321-

323; People v. Masters (2016) 62 Cal.4th 1019, 1075.)

       Furthermore, any error was harmless under any standard of review. (Glebe v.

Frost (2014) 135 S.Ct. 429, 430-431; People v. Rogers (2006) 39 Cal.4th 826, 871-872;

People v. Boyette (2002) 29 Cal.4th 381, 428-429.) Defendant was allowed to make the

alternative argument that he lacked the intent to kill even though it was entirely

inconsistent with his alibi defense. The jury accepted his argument that there was no

premeditation or deliberation. In any event, there is no reasonable possibility defendant

could have obtained a better outcome because the evidence of defendant’s guilt was

overwhelming as already discussed.



                                             10
                                              VII

                   IDENTIFICATION BY PHOTOGRAPHIC LINEUP

       Kaplan, the victim, and his neighbors, Stroney and Hass, identified defendant in a

six-pack photographic lineup. In the photograph, defendant had a faint tattoo over his

right eyebrow and none of the other photographs depicted a tattoo. Defendant argues the

lineup was unduly suggestive. The trial court denied defendant’s motion to suppress the

identifications, finding that the photographs were generally similar and the tattoo was not

very visible.

       “‘In order to determine whether the admission of identification evidence violates a

defendant’s right to due process of law, we consider (1) whether the identification

procedure was unduly suggestive and unnecessary, and, if so, (2) whether the

identification itself was nevertheless reliable under the totality of the circumstances,

taking into account such factors as the opportunity of the witness to view the suspect at

the time of the offense, the witness’s degree of attention at the time of the offense, the

accuracy of his or her prior description of the suspect, the level of certainty demonstrated

at the time of the identification, and the lapse of time between the offense and the

identification.’ (People v. Cunningham (2001) 25 Cal.4th 926, 989.) ‘We review

deferentially the trial court’s findings of historical fact, especially those that turn on

credibility determinations, but we independently review the trial court’s ruling regarding

whether, under those facts, a pretrial identification procedure was unduly suggestive.’

(People v. Gonzalez (2006) 38 Cal.4th 932, 943.) ‘Only if the challenged identification

procedure is unnecessarily suggestive is it necessary to determine the reliability of the

                                               11
resulting identification.’ (People v. Yeoman (2003) 31 Cal.4th 93, 125.)” People v.

Alexander (2010) 49 Cal.4th 846, 901-902.)

       A defendant’s photograph should not “stand out” by suggesting the witness should

select him. (People v. Yeoman, supra, 31 Cal.4th at p. 124.) However, the photographs

in a lineup need not be identical or indistinguishable. (People v. Brandon (1995) 32

Cal.App.4th 1033, 1052; People v. Wimberly (1992) 5 Cal.App.4th 773, 790.) Instead, an

identification procedure will be deemed unfair only if it suggests a suspect’s identity in

advance of the witness’s identification. (Ibid.) In the present case, the trial court

determined the photographs were similar enough not to be impermissibly suggestive.

(People v. DeSantis (1992) 2 Cal.4th 1198, 1222; People v. Gonzalez, supra, 38 Cal.4th

at p. 943; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1082.) We will not reject the

trial court’s determination. (Gonzalez, at p. 943.)

       Other evidence also supports the reliability of the identifications. Holtzman

recognized defendant at a curbside lineup. She did not notice his facial tattoo until the

trial. Kaplan “instantly” identified defendant’s photograph a few days after March 17.

Kaplan confidently recognized defendant at trial. Haas identified defendant’s photograph

based on his confrontation with him at the property. Haas relied on defendant’s bone

structure, not his facial tattoo. Stroney was able to identify defendant after watching him

from his window. Stroney was also able to describe defendant’s clothing, leading to his

arrest. None of these identifications were based on defendant’s facial tattoo. Thus, under

the totality of circumstances there is no substantial likelihood of a suggestive

misidentification. (People v. Cunningham, supra, 25 Cal.4th at p. 990.)

                                             12
       Finally, any error was harmless. Two witnesses saw defendant changing his

clothes near the dumpster where the police found Holtzman’s purse and knitting bag.

Kaplan’s DNA on defendant’s person further implicated him. Defendant’s implausible

explanation that the blood was smeared on him by the true culprit was rejected by the

jury. Five witnesses identified defendant in court. Any error in admitting pretrial

identification evidence was harmless beyond a reasonable doubt. (People v. St. Germain

(1982) 138 Cal.App.3d 507, 519.)

                                            VIII

                                      DISPOSITION

       We order the abstract of judgment be corrected to show a 16-month sentence on

count 3. The trial court is ordered to forward a copy of the corrected abstract to the

Department of Corrections and Rehabilitation. Subject to that modification, we affirm

the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                         J.

We concur:


HOLLENHORST
                 Acting P. J.


SLOUGH
                           J.




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