Filed 11/14/13 P. v. Madden CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C071435

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F06356)

         v.

DEMETRI MADDEN,

                   Defendant and Appellant.




         On June 3, 2010, an armed and masked man walked into the Arden branch of the
Sacramento Credit Union and demanded money from three tellers, netting about $7,500
in cash before fleeing on foot. A few minutes after the robber fled, police found the mask
about 100 yards from the credit union.
         Three months later, police took defendant Demetri Madden into custody.
Defendant’s DNA profile was the same as the profile of DNA taken from the mask. On a
cell phone found in defendant’s car, police found pictures of numerous $100 bills, $20
bills, and $10 bills with a date stamp one day after the robbery. There were no
photographs showing defendant holding winning lottery tickets or being at a casino or

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poker table. On the cell phone, police also found pictures of a Wells Fargo Bank, a 7-
Eleven, a Radio Shack, a Circle K, and one picture of the security camera of an AM/PM
convenience store. According to police, those establishments were common targets of
robberies, and it was “very common for robbers to take photographs to case a place and
have it on their phones prior to committing a robbery.” There were no pictures of the
Sacramento Credit Union.
       A jury found defendant guilty of three counts of second degree robbery with
personal use of a firearm for robbing the Sacramento Credit Union. The court (with
defendant representing himself at the time) found defendant had one prior strike, had
served two prior prison terms, and had one prior serious felony, and then sentenced him
to 37 years eight months in prison.
       Defendant appeals from the judgment, contending the trial court erred in (1)
admitting evidence he had cased other businesses, (2) denying his motion to continue the
bench trial on the priors, and (3) failing to arraign him for judgment and sentencing.
Finding no prejudicial error, we affirm.
                                      DISCUSSION
                                             I
                   The Court Erred In Admitting The Casing Evidence,
                               But The Error Was Harmless
       Defendant contends the court erred in violation of his federal rights to due process
and a fair trial by admitting the photographs showing defendant had cased other
businesses.
       In the trial court, the People argued the casing evidence was admissible to show
“planning of future crimes” and to put the pictures from defendant’s cell phone “in
context” because there were no pictures of him winning the lottery or winning at
gambling in a venue like Las Vegas, but rather “what you have are photographs of places
that are commonly robbed.” Defense counsel objected based on “352” and “it is not

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probative in any way” except possibly to say “he’s a robber; look at these photographs.”
The trial court initially ruled that it was going to exclude the evidence because “it is
really character evidence that is being used for propensity,” and “it would be unduly
prejudicial because it would speculate that [defendant] has robbed all sorts of other
places, but there is no evidence that any of those places were robbed.”
       About halfway into trial, however, the court sua sponte reversed its ruling. It
explained that it “was falsely thinking . . . that it was . . . bad act [evidence] . . . ” but it
was not and it “jumped the gun in thinking 1101(b) is even applicable.” The People
argued the pictures “show[ed] some degree of planning and preparation.” Defendant
argued there was no evidence defendant was even casing these businesses, there was no
evidence they were robbed, and there was no “relevant connection between this crime
and those photographs.” The court concluded by saying, “I’m going to reverse my prior
ruling, and I’m going to allow them in.”
       Defendant contends, as he did in the trial court, the photos were character
evidence prohibited under Evidence Code section 1101, subdivision (a). He is correct.
Evidence Code section 1101, subdivision (a) states the following: “Except as provided in
this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character
or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.” The casing evidence
consisted of five specific instances of defendant’s conduct in taking pictures of
businesses that the police testified were common targets of robberies. The inference from
this evidence, as the trial court initially and correctly recognized, was that defendant is a
robber because he had cased other businesses and, therefore, he was the robber of the
Arden branch of the Sacramento Credit Union as well.
       The People’s sole argument on appeal as to why this evidence was admissible is
that it fell under the exception to Evidence Code section 1101, subdivision (b) of

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“ ‘common design or plan.’ ”1 They argue, “the photographs indicated the existence of a
plan (albeit not yet executed) to commit other robberies.” In the trial court, however, the
People correctly recognized, “I don’t think there is enough to make it an 1101(b)
common plan [o]r scheme.” There was no evidence that in the current robbery defendant
cased the Sacramento Credit Union. Indeed, there were no photographs of the credit
union on defendant’s cell phone. In short, there were no “common features”
“indicat[ing] the existence of a plan.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
       We turn then to prejudice and explain why the error was harmless under either
prejudice-based standard of review. (Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705, 710-711] [“before a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harmless beyond a reasonable
doubt”]; People v. Watson (1956) 46 Cal.2d 818, 836 [before a state error can be held
harmless, the court must be able to declare that it is not “reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error”].) Defendant’s DNA exactly matched the DNA found on the mask that was used
by the robber. Moreover, defendant took pictures of what appeared to be the proceeds of
the robbery within a day of its commission, and there was no other explanation of why
defendant had that money or took those pictures. The error was harmless.




1      Evidence Code section 1101, subdivision (b) states: “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act.”

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                                              II
                          The Trial Court Did Not Err In Denying
                          Defendant’s Request For A Continuance
       Defendant contends the trial court violated his constitutional rights when it denied
his motion to continue the bench trial on the prior convictions and the sentencing hearing
after it had just granted defendant’s motion to represent himself. As we explain, the trial
court did not abuse its discretion in denying defendant a continuance.
       “ ‘Continuances shall be granted only upon a showing of good cause.’ [Citation.]
‘The burden is on [the defendant] to establish an abuse of judicial discretion . . . .’
[Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1003.) “An important factor for a
trial court to consider is whether a continuance would be useful.” (Ibid.) “[T]o
demonstrate the usefulness of a continuance a party must show both the materiality of the
evidence necessitating the continuance and that such evidence could be obtained within a
reasonable time.” (Ibid.)
       Here, the trial court was well within its discretion to deny defendant’s request for a
continuance for a simple reason -- the evidence defendant said he wanted to gather would
have been irrelevant to the court’s decision on the prior conviction findings. Defendant
said he needed a “few weeks” to “get[] responses back from the letters and the
information that [he] already sent out” “to the witnesses that [he] was going to be calling
to speak on [his] behalf . . . .” The court asked, “[H]ow would their testimony be relevant
in challenging the . . . priors [which included the strike, that was a gang prior]?”
Defendant responded, “[T]hey would be able to provide testimony that would be able to
prove that I am in no way, shape, or form, nor have I been in any way, shape or form, a
gang member.” As even defendant concedes on appeal, “such evidence would not have
been admissible at the bench trial on the prior convictions as the issue would have been
whether or not he suffered the conviction, not whether or not the conviction was just.”



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       Defendant goes on to argue on appeal that the court’s ruling nevertheless was
wrong because he needed time to conduct legal research and suggests that if he had had
enough time and had been permitted access to the jail’s law library, he could have
prepared a written request to strike the prior strike instead of making only a short oral
request. This part of defendant’s argument is conjecture and forfeited, as in the trial court
the only argument defendant made for needing a continuance was to get statements from
the witnesses about the gang prior. The trial court was well within its discretion to deny
the continuance.
                                             III
      The Court Erred In Not Arraigning Defendant For Judgment And Sentencing,
                               But The Error Was Harmless
       Defendant contends his case must be remanded for resentencing because the court
erred in failing to comply with the requirements of Penal Code section 1200 before
imposing judgment and sentence.
       Penal Code section 1200 states: “When the defendant appears for judgment he
must be . . . asked whether he has any legal cause to show why judgment should not be
pronounced against him.” Legal cause why judgment should not be pronounced consists
of insanity or “good cause to offer, either in arrest of judgment or for a new trial.” (Pen.
Code, § 1201, subds. (a) & (b).)
       Here, defendant is correct the trial court did not ask him if he had any legal cause
to show why judgment should not be pronounced against him. He is incorrect, however,
that his case must be remanded for sentencing. Nothing in the record suggests defendant
had any legal cause, within the meaning of Penal Code section 1201, why judgment and
sentence should not be pronounced. Where defendant “ ‘does not suggest any facts
which would have in any way affected the disposition of the case had the trial judge made




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[the Penal Code section 1200] inquiry,’ [citation] it was not reversible error for the judge
to omit arraignment for judgment [citation] or inquiry of the defendant as to whether
there was any legal cause why judgment should not be pronounced.” (People v. Billetts
(1979) 89 Cal.App.3d 302, 311.)
                                      DISPOSITION
       The judgment is affirmed.




                                                        ROBIE                 , J.



We concur:



      BLEASE                , Acting P. J.



      MAURO                 , J.




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