Filed 1/30/15 P. v. Brammer CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B247917

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA066631)
         v.

JAMES WILLIAM BRAMMER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Harvey
Giss and David B. Gelfound, Judges. Modified and affirmed with directions.
         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, James William Bilderback II, Supervising Deputy Attorney General, and Kathy
S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
                                 _________________________________
       Defendant James Brammer appeals from the judgment entered following a jury
trial in which he was convicted of 13 counts of second degree robbery.1 Defendant raises
numerous contentions. We affirm the judgment, but modify defendant’s presentence
credits and the restitution and parole revocation fines imposed upon him.
                                      BACKGROUND
       Defendant confessed to, was charged with, and was convicted of 13 counts of
second degree robbery. We set forth our summary of the evidence presented at trial
regarding the crimes in chronological order.
1.     Robbery at Helda’s Beauty Salon (count 8)
       A White man with blue eyes, wearing a fake mustache, fake beard, and “ski hat”
entered Helda’s Beauty Salon around 6:45 p.m. on December 12, 2009. He approached
owner Shanaz Bashiz, pointed a gun at her, and pushed her toward the cash register as he
demanded money. She opened the cash register and he took the money from the drawer.
At the preliminary hearing and trial, Bashiz identified defendant as the robber and
remarked she would never forget the robber’s eyes. At both proceedings, Bashiz left the
witness stand and approached defendant to look into his eyes before identifying him. The
robbery was captured on three of the salon’s security cameras, and the recordings from
these cameras were played at trial.
       When detectives showed Bashiz a photographic array that did not contain
defendant’s photo, she tentatively identified two photographs, one of which was a
photograph of Jack Bingham. Detectives ultimately cleared Bingham of any involvement
after investigating him. Bingham did not confess to any of the robberies, even after
detectives told him he had been identified by victims.
       When defendant’s investigator showed Bashiz five photographic arrays in
September of 2010, she did not select defendant’s photograph. She instead selected a
photograph of another man as “a look-alike.”


       1As noted in footnotes 4 and 5, post, the jury acquitted defendant on two
attempted robbery counts.


                                               2
2.     Robbery at Domino’s Pizza (counts 1 and 2)
       About 7:45 p.m. on December 21, 2009, a man ordered a sandwich at the counter
in a Domino’s Pizza on Ventura Boulevard in Tarzana and handed $10 to store manger
Jose De Los Santos. De Los Santos opened the cash register to process the man’s
payment. When he looked up, he saw the man was pointing a gun at him. The store’s
delivery driver, Oscar Torres Zavala, was standing a few feet behind De Los Santos. The
man demanded the money from the cash register and ordered Torres Zavala to hand over
the money in his pockets. Torres Zavala placed his money on the counter and the man
reached into the register and took the money from it, along with Torres Zavala’s money.
The man told them to move back from the counter and get on their knees, then fled the
store with the money.
       De Los Santos and Torres Zavala testified they had identified defendant as the
robber at the preliminary hearing. Torres Zavala also identified defendant at trial, but
explained he could not be certain because the robber was wearing a “disguise,” consisting
of a dark black wig and a fake goatee. The robber also wore clear latex gloves and a dark
baseball cap that looked “brand new.” He was White and had blue or green eyes. De Los
Santos testified the robber had fake-looking black hair and wore sunglasses, a navy blue
hat, and a fake “‘really dark mustache.’”
       The parties stipulated that the description of the robber De Los Santos and Torres
Zavala provided to police officers who responded to the robbery included green eyes and
a “thick shiny dyed black mustache.”
       Neither De Los Santos nor Torres Zavala identified defendant from photographic
arrays. Torres Zavala had selected a photograph of someone other than defendant, but
explained at trial he had not identified the man in the photograph as the robber, but
merely the person who looked “the most familiar.”
3.     Robbery at first Payless Shoes store (count 10)
       About 6:30 p.m. on December 23, 2009, Mindy Ambriz, an employee of the
Payless Shoes store on Ventura Boulevard in Woodland Hills, noticed a man walking
back and forth outside the store and looking into the store’s windows. She told her


                                             3
coworker Carolina Valdivia that the man seemed suspicious. The man entered the store,
walked up to the counter, selected a piece of jewelry off a rack beside the counter, and
placed or “threw” several dollar bills on the counter, as if to pay for the item. Valdivia
opened the cash register. The man pointed a gun at Valdivia and Ambriz, who were side-
by-side, and demanded money. Valdivia and Ambriz backed away from the register.
The man reached across the counter, took all the money from it, then fled.
       Valdivia testified the robber had blue eyes, fair skin, black hair, and a dark
mustache and goatee that did not look real. He was wearing a hoodie and had a clear
plastic glove on his right hand. Ambriz testified the robber had black hair sticking out
from beneath his hood, but at gaps between the hood and his head, she could see that he
was actually bald. He had blue eyes, a fake black beard, and hair “around his lips” and
on his chin that did not look real. She further testified he wore clear plastic gloves on
both hands. Valdivia and Ambriz identified defendant at trial, and Valdivia also had
identified him at the preliminary hearing. Ambriz did not testify at the preliminary
hearing.
       A few days after the robbery, Valdivia and Ambriz worked with an artist to
produce a sketch of the robber that was introduced at trial. Ambriz was unable to identify
anyone from photographic arrays, and Valdivia was not asked to make an identification
from a photographic array.
       The parties stipulated that the police report regarding the robbery indicated the
robber’s hair was “unknown.”
4.     Robbery at Kentucky Fried Chicken (count 3)
       Around 6:45 p.m. on December 27, 2009, a “weird” White man wearing clear
latex gloves, a black “beanie,” a black wig, and a fake mustache questioned an employee
about the menu at a Kentucky Fried Chicken on Reseda Boulevard. The employee
alerted assistant manager Halihinga Perera, who told the employee to do her job. Soon,
Perera heard the employee crying and saw that the man was pointing a gun at the
employee and demanding money. The man took the money from the cash register and
ran away. Perera never identified anyone as the robber, but at the preliminary hearing, a


                                              4
third employee, Vanessa Amaya, identified defendant as the robber. By the time of trial
in October of 2012, Amaya was no longer able to remember the robber’s appearance well
enough to make an identification. A video recording of the robbery was played at trial.
       Perera and Amaya were not able to identify anyone from photographic arrays
shown them by defendant’s investigator in August 2010.
5.     Robbery at second Payless Shoes store (counts 13 and 14)
       A “weird” man entered a Payless Shoes store on Corbin Avenue about 7:00 p.m.
on January 2, 2010,2 and approached the counter where Janelle Celis and Linda Mendoza
were working. He took a package of shoelaces off a rack at the counter and threw the
shoelaces and $5 on the counter. Mendoza opened the cash register to process the
transaction, and the man pointed a gun at both Celis and Mendoza. He demanded, then
took the money from the cash register. He told the women to go to the back of the store,
and fled. Still photos of the robbery in progress were introduced at trial.
       Celis and Mendoza described the robber as a blue-eyed man with a very heavy
fake black mustache, a goatee, fake black hair, and “fake skin” on the chin, wearing a
black baseball cap. At the preliminary hearing both women identified defendant as the
robber. Celis also identified defendant at trial as the robber. Mendoza did not testify at
trial. Pursuant to a stipulation, her preliminary hearing testimony was read at trial.
       Before trial, Celis and Mendoza selected photographs of persons other than
defendant from photographic arrays. Mendoza selected two photographs.
6.     Robbery at Frazier Park Market (Kern County—uncharged in this action)
       Around the 4th or 5th of January defendant temporarily moved into the home of
his daughter Brieanna Adargo, her then-husband Orion Adargo, and their children. The
Adargos lived just a few blocks from the Frasier Park Market, and Brieanna was a friend
of Ashley Glauser, who worked at the market.
       About 6:00 p.m. on January 6, a White man wearing a fake mustache and goatee,
clear plastic gloves, and a baseball cap over “shaggy” hair walked up to Glauser’s check


       2   Date references pertain to 2010 unless otherwise indicated.


                                              5
stand at the Frasier Park Market, placed some candy and toothpicks on the conveyer belt,
and handed Glauser $5. She opened the cash register, and the man pulled a gun and
demanded the money. Glauser backed away and the man took the money from the
register. He ordered her to go to the back of the store and count to 100.
       Kathleen McGinley, who was parked outside the market, saw a man run past her
car “really fast.” As he ran, he removed “a disguise,” i.e., a black wig and fake goatee.
       Glauser and McGinley identified defendant at trial, and Glauser had previously
identified him from a photographic array.
       The market’s security cameras recorded the robbery, and still photographs from
the video were introduced at trial. Brieanna testified that at a later time she viewed the
video of the market robbery and recognized the robber as defendant. She also recognized
the baseball cap the robber wore as one she had seen in her house. Brieanna further
testified defendant unexpectedly treated her family to dinner at a pizza parlor on the night
of January 6, 2010.
7.     Robbery at Vincenzo’s Pizza (counts 18 and 19)
       On January 8, defendant went with Brieanna, Orion, the children, and members of
Orion’s family to celebrate Orion’s birthday at La Cocina Bar and Grill. Defendant rode
with Brieanna and Orion in their Saturn. Defendant, Orion, and others had two or three
drinks in the lounge while the group waited for a table. Sometime after the group was
seated and was eating appetizers, defendant said he had to go out for a moment and left
the table. Defendant was able to walk, was not slurring his speech, and did not appear to
be intoxicated at that time.
       About 9:50 p.m. a White man with blue eyes and black hair, wearing a black
“beanie” and a fake black beard and mustache, entered Vincenzo’s Pizza, which was in
the same plaza as La Cocina. The man looked at the posted menu and ordered a salad.
Vincenzo’s manager, Ruben Talamantez, entered the order on the cash register, and the
cash drawer opened. The man pointed a gun at Talamantez’s chest and demanded all the
money from the cash register. Delivery driver Eduardo “Wally” Ruiz heard the demand
and turned toward the robber. The robber pointed the gun at Ruiz and told him to mind


                                              6
his own business. Ruiz put his hands in the air. Talamantez handed the robber all the
bills from the cash register, and the robber walked out. Ruiz followed him briefly while
Talamantez phoned 911.
       Talamantez and Ruiz identified defendant at trial as the robber. Talamantez also
identified defendant in a photographic array on January 26. Ruiz was unable to identify
defendant from photographs.
       Brieanna testified that defendant’s mood appeared to be elevated when he returned
to La Cocina, and he promptly bought a round of drinks for everyone. After dinner, the
group left La Cocina and went to a bar. Orion testified defendant began “bragging about
robbing people or robbing places,” and said, “‘People are scared, and you can just walk in
and do what you want.’” Orion testified that sometime after the group arrived at the bar
defendant became so inebriated he could not walk, but while they were at La Cocina,
defendant was able to walk and talk normally and seemed to know what was going on
around him. Brieanna testified defendant was inebriated and talkative in the car after the
group left the bar and seemed to be hinting at something. He admitted he had a gun in
her car, but said it “was not a real weapon” and she had nothing to worry about. The
Adargos left defendant and his belongings at a motel.
       Video footage and still photos from multiple security cameras at the plaza in
which La Cocina and Vincenzo’s were located were admitted at trial, including video
showing defendant leaving La Cocina restaurant, putting on a disguise, entering a
7-Eleven store, entering Vincenzo’s Pizza, robbing Vincenzo’s, removing his disguise in
an alley between the buildings, returning to La Cocina, and ultimately getting into a car
and leaving with other people.
       Sheriff’s detectives were able to identify the Adargos’ car by cross-referencing a
partial license plate visible on the security video with the license plates recorded by a
scanner mounted on one of the patrol cars that responded to the robbery.
8.     Robbery at Panera Bread (count 15)
       About 6:05 p.m. on January 12, a White man wearing a fake mustache and a dark
“beanie” asked to purchase a brownie at Panera Bread and placed $5 on the counter.


                                              7
Cashier Andrew Pineda opened the cash register to make change, and the man pointed a
gun at him and demanded the money from the register. Pineda gave the man the money,
then the man demanded Pineda open the other cash register and give him the money from
it. Pineda complied. Pineda identified defendant as the robber at the preliminary
hearing, but could not do so at trial. The robbery was depicted on a recording and still
photos from the restaurant’s security cameras, which were admitted at trial.
        The parties stipulated that the description of the robber Pineda provided to police
officers who responded to the robbery included “possible brown eyes,” “unknown hair
color,” and a mustache and goatee “that appeared to be fake.”
9.      Robbery at Starbucks (count 12)
        A White man wearing a fake-looking, jet-black goatee and mustache walked up to
the drive-through window at a Starbucks in Tarzana about 7:00 p.m. on January 21 and
ordered a coffee. Employee Heather Reid Hartman told the man to go to the walk-up
window. The Starbucks was small and served customers only through walk-up and
drive-through windows, not inside the store. The man ordered coffee from Alexander
Abramowitz at the walk-up window. When Abramowitz returned to the window with the
coffee, the man handed him $2. Abramowitz opened the cash register and the man
pointed a gun at Abramowitz, threatened to shoot him, and demanded all the money.
Abramowitz believed the gun might be a pellet gun, but did not want to take a chance.
He gave the man all of the cash from the register. The man then demanded that
Abramowitz give him the cash from the register at the drive-through window.
Abramowitz complied, but took a little time doing so. The man threatened to shoot him.
After Abramowitz gave the man the cash from the drive-through register, the man ran
away.
        Abramowitz identified defendant as the robber at trial and had done so at the
preliminary hearing as well. Hartman identified defendant as the robber at the
preliminary hearing, but could not remember the robber well enough to identify anyone at
trial. Hartman identified someone other than defendant from photographic arrays, and
Abramowitz was unable to make an identification from the arrays. Abramowitz had told


                                              8
responding police officers the robber’s eyes were brown. A recording from the café’s
security cameras was admitted at trial.
10.    Robbery at Baskin Robbins (counts 16 and 17) and defendant’s arrest
       About 9:30 p.m. on January 23, a blue-eyed White man wearing clear latex gloves,
a dark blue baseball cap, a black wig, and a fake mustache and goatee or beard entered a
Baskin Robbins store in Woodland Hills, ordered ice cream, and put $2 on the counter.
Employee Ana Garcia opened the cash register. When she looked up, the man was
pointing a gun at her face and demanded the money from the register. Garcia backed
away as her coworker Laura Silva walked up and tried to close the cash register. The
man pointed the gun at Silva, took the money from the cash register, and walked out.
Garcia told the 911 dispatcher she thought the robber’s gun was a BB gun.
       Defendant was detained about 12:40 a.m. on January 24. One of the detaining
officers found a plastic glove in defendant’s jacket pocket.
       Officers brought Garcia and Silva to view defendant in a field showup. Both
women identified defendant as the robber. They also identified him at trial. About seven
months after the robbery, Silva selected a photograph of someone other than defendant
from photographic arrays shown to her by defendant’s investigator.
11.    Search of defendant’s residence and gun evidence
       Soon after defendant’s arrest, officers searched the room he rented and recovered a
box of clear vinyl gloves, a black wig, a fake mustache, a fake goatee, adhesive, and a BB
gun with a removable magazine.
       Defendant purchased “spring” guns from a store in Winnetka on December 10,
2009, and December 13, 2009. Both would have had visible orange tips on them when
they left the store, but their design resembled real firearms.
12.    Defendant’s admissions
       a.     Recorded phone call with Brieanna
       The police located and questioned Brieanna before arresting defendant. She
cooperated and allowed them to record a phone call defendant made to her on the night of
January 23. A recording of that call was admitted at trial. Early in the call Brieanna said


                                              9
she had found a blue hat and asked if defendant had left it at her home. Defendant said
he had left “gloves” and his “beanie.” Brieanna said she had his gloves and beanie, but
was concerned because “it also showed up in the paper in the pictures of the whole
incident up here and it looks like . . . .” Brieanna asked defendant, “What’s going on?
Why? Why up here?” Defendant replied, “I get intoxicated and I do stupid things.”
Brieanna again referred to “the newspapers and everything” and asked whether the gun
was real. Defendant said he was not capable of hurting anyone and “that’s why it’s a toy
gun.” Later Brieanna said, “[T]hat girl was my friend and this is my town.” Defendant
replied, “I know and that was a stupid ass move.” Defendant agreed never to “do it
again,” but repeatedly asked Brieanna to “keep it under wraps.”
       Defendant tried to explain his conduct, saying, “You know what it is sweetheart, I
can’t change who I am and you know, I was a gangster for a long time and I still am in a
sense.” He added, “I regret that move but you know there’s been ten of those and I don’t
know why . . . .” Brieanna referred to defendant “buying pizza and that stuff.”
Defendant replied, “I never thought you would put two and two together.” Defendant
apologized and said, “[W]ell it’s our secret.” He promised, “[I]t is not going to happen
ever again,” and asked Brieanna to “relax” and “[l]et this die, okay.”
       b.       Confession to Detective Richards
       Detective Bret Richards and his partner spoke to defendant at the police station on
January 24. The interview was video-recorded and defendant introduced the recording at
trial. Richards read defendant his Miranda3 rights and defendant stated he both knew and
understood these rights. The detectives terminated the interrogation when defendant
invoked his right to counsel. Richards testified he believed defendant was “emotional
and wanted to talk about what happened,” so he wrote his mobile phone number on his
business card and gave it to defendant.
       On the afternoon of January 25, defendant phoned Richards and said he wanted to
talk to him. Richards returned to the police station to speak to defendant, accompanied


       3   Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).


                                            10
by Detective Chris Reckleff. The interrogation was recorded with a video camera and the
recording was admitted and played at trial. After the recording was played, the court
informed the jury, “[T]he issue as to whether or not the defendant was properly
Mirandized is not before you. That’s been resolved already. That’s a legal issue. The
court resolved that already.” Upon questioning by the court, Richards testified he had
advised defendant of his rights pursuant to Miranda on January 24 and ceased
questioning when defendant invoked his rights. Richards later read to the jury the
Miranda advisement he had given defendant.
       At the outset of the January 25 interrogation, defendant repeatedly interrupted
Richards, apparently eager to persuade Richards that “there’s no real gun involved” and
he could not have hurt the victims. Defendant added, “I’ve done that all my life” in
“[e]very armed robbery I’ve ever done, except the—the dope dealers . . . .” Defendant
said he knew “that makes a big difference.”
       After defendant made his desired statement about the gun, Richards was able to
remind defendant he was “still under your Miranda rights, you know? I mean, you don’t
have to talk to us, but you called us, so I think the best way to do this is—” Defendant
interrupted, saying, “[Y]ou’re going to go to the D.A. and tell them that I’ve cleaned up
everything for you.” Richards said he would. Defendant continued, “You’re going to tell
them that I’m willing to take a deal.” Richards agreed, and defendant added, “Now.”
Richards again agreed, and defendant added, “I don’t want another hearing, no nothing.”
Richards explained, “I can go to the D.A. and tell her that you called me in here and that
you wanted to talk about this and that you cleaned up everything and then, as you know,
the police department can’t make any promises to you.” Richards added, “What she does
is a totally different ball game.”
       Defendant first admitted the robberies at Baskin Robbins and explained, “I just
walked in and asked them for some type of item and when she opened the drawer, I—I
pulled out the bee-bee gun and said, ‘Give me the money.’” Defendant remarked that
“the soft air guns can be construed as a real weapon” and explained, “[T]hat was one of
the reasons why I—I got that gun because it resembles a real weapon” when properly


                                              11
held. Defendant admitted he wore “[t]he mustache,” “[g]oatee,” “[w]ig and a hat.” The
employees he robbed were “females” and he obtained less than $100 from the robberies.
       In the midst of his confession to the Baskin Robbins robberies, defendant said,
“Still leery of this because you know, if they want to bust my balls, then I—I’ve just
fucked off every defense I ever had” by “talking to you.”
       Defendant explained his modus operandi to Richards: Defendant would pretend to
be a customer, then “hand them money. They open up the drawer, so the first thing they
do when they look up, they see a gun like this, sideways.” “I just ask them for the money
and sometimes they refuse. I—I’ll just grab it out.” Defendant further explained that
after he left the scene of a robbery he would remove his wig and fake facial hair when he
got 50 to 100 yards away, hide them in a trash can, then sit at a bus stop or another
nearby fast food restaurant “and let everything cool off” before retrieving his disguise.
He boasted, “I walked right through your police half the time.”
       After asking the location of the Starbucks, defendant admitted he committed the
robbery at the Starbucks ultimately charged in this case (count 12). He explained he
robbed a male employee while using one of his three BB guns and wearing a mustache
and goatee. He added, “Every one I did had a mustache goatee.” Richards asked if he
went inside, and defendant explained, “[Y]ou can’t go inside,” “[i]t was up to the
window.”
       Defendant initially said he did not “think” he committed a robbery at Panera Bread
(count 15), but when Richards showed him a security camera photo of the robber, he
admitted “the hair” and “that gun” depicted in the photo were his. He claimed not to
recall the robbery, but stated he obtained about $300 from it, then described the
neighboring businesses and the path he followed as he fled.
       Defendant admitted committing the robberies at Vincenzo’s (counts 18 and 19).
He told Richards, “[I]t was my son-in-law’s birthday,” “I was drinking shooters with
them, . . . we were having a party.” Defendant said he walked outside and saw a pizza
place that was “real crowded” above the Mexican restaurant. He thought he could obtain
a lot of money from it and it could “be the end.” The employees “looked like college


                                             12
kids” and he thought “it looked real easy.” All of defendant’s belongings were in his
daughter’s car, so he retrieved his wig, fake facial hair, and BB gun from the car, checked
“the get-away” path, and put his disguise on behind the building. Defendant went in,
ordered something, and when the “guy” opened the “drawer” defendant asked him for the
money. Then “another kids [sic] walked up,” so defendant “made sure that he—he saw
the gun.” The second employee stepped back and the first told defendant to take the
money. Defendant obtained about $450 from them. Defendant left, took off his disguise,
and put it in his bag “near” his daughter’s car.
       Defendant also admitted committing the robberies at the Payless Shoes stores on
Corbin Avenue (counts 13 and 14) and Ventura Boulevard (count 10). He told Richards
he picked up some shoelaces from a shelf before taking $60 or $70 from the register at
the Corbin Avenue store. At the Ventura Boulevard store he obtained less than $100. He
wore the fake facial hair and used one of his BB guns during each of those crimes.
       Defendant admitted committing a robbery at Kentucky Fried Chicken on Reseda
Boulevard (count 3) and told Richards he wore the fake mustache and goatee and used
one of his BB guns to rob female employees. He recalled sitting at the bus stop for more
than an hour after the robbery and watching the police detain other people. Defendant
did not recall committing robberies at Kentucky Fried Chicken locations on Ventura
Boulevard or Topanga Canyon, but acknowledged he “did a couple” of robberies at
Kentucky Fried Chicken restaurants.4
       Defendant also admitted committing the robberies at Domino’s Pizza on Ventura
Boulevard (counts 1 and 2). He explained he “[o]rdered a little something for a dollar
something,” then the employee “opened the register and I said, ‘Give me the money.’”
Defendant pointed at the police report Richards had and said the amount of money
reported stolen was incorrect. He claimed he had obtained only “like, 80 some bucks.”



       4 Defendant was acquitted of an attempted robbery at the Topanga Canyon
Kentucky Fried Chicken and was not charged with a robbery at the Ventura Boulevard
location.


                                             13
Defendant described the BB gun he used in those robberies and said he wore the wig,
mustache, and goatee, and the two employees he robbed were male.
         Defendant admitted committing the robbery at Helda’s Beauty Salon (count 8) as
well. He explained that “one lady was cutting another lady’s hair” and described the
women. He told Richards which BB gun he used and said he obtained “[h]alf of what I
wanted. About [$]250, something like that.” When told the victims reported he stole “a
grand,” defendant exclaimed, “Oh, hell, no. If I would have had a grand, that would have
ended it right there.”
         Defendant also admitted committing an uncharged robbery at a fragrance store,
but denied an attempted robbery at a diversion program5 and several other robberies
Richards asked him about.
         Defendant explained he was “intoxicated” “when I did it,” and “I didn’t like doing
this, trust me. It just—it just happened.” He further explained he had been released on
parole in April and had difficulty finding and maintaining work. He intended “to do, like,
a couple of these and—and get something substantial,” and then “just fade away.”
Defendant also stated, however, “[A]ll I was trying to do was get a little food and pay my
rent.”
         After admitting the various robberies, defendant said he knew he was “going to eat
shit because of” his admissions, but explained, “I’m just trying to keep it as minimal as I
can, you know? I was hoping you might speak for me, you know, for 10 to 14,
something like that. Waive preliminary hearing and just let me go do the time and start
all over again.” Defendant later added, “[W]hat I did is destroy any chance of beating
any one of these cases.”
         Before the interview ended, defendant asked, “[W]ould it be possible to get a
couple of cards out of my wallet?” Richards replied, “Yes. I’m going to do that for
you.” Reckleff asked what defendant needed from his wallet. Defendant responded,
“Just a couple attorney’s cards.” Richards said he had seen an attorney’s card in


         5   Defendant was acquitted of an attempted robbery at the diversion program.


                                               14
defendant’s wallet. Defendant also wanted phone numbers that were stored in his mobile
phone, including the numbers for his daughter and someone who had been helping him
with his student loan.
       c.     Confession to Detective Newell (robbery at Frazier Park Market)
       Kern County Sheriff’s Detective James Newell interrogated defendant on the
afternoon of January 24, before defendant confessed to Richards. The interrogation was
recorded. Defendant called Newell as a witness at trial and played the recording. At the
start of the recorded interview, Newell advised defendant of his rights pursuant to
Miranda, and defendant said he understood his rights.
       Later in the interrogation, defendant admitted committing the robbery at the
Frazier Park Market and explained he “was broke” and “drinking.” He had been in the
market and seen the money, and “thought it would never come back to bit[e] me.” He
assured Newell the gun was not real and later described its appearance. He recounted he
had put on his disguise “down the street,” “away from the house,” then “got something”
in the market for the checker to ring up. Defendant “handed her money,” and pulled the
gun “when the drawer was open.” The cashier “took one look” at defendant “and gave
[him] the money.” He obtained about $400 in that robbery. He ran out of the store and
through the parking lot. Defendant could not recall if he wore gloves during the robbery,
but told Newell it was possible; if he did, they were “latex type” gloves he used to keep
his hands clean when he worked on cars. Defendant said he smashed his BB gun and
discarded it and his disguise in a trash can when he left the market.
       On cross-examination at trial, Newell testified, without objection, that defendant
had asked to speak to him during the preliminary hearing and complained “that the
L.A.P.D. was charging him with using a firearm when he actually used an airsoft gun
during the robberies he committed in L.A.; and he wanted to send me a photograph of the
gun that he said he used during those robberies to show it was a fake gun, not a real gun,
because he didn’t want to have the charge of using a real gun filed against him.”




                                             15
13.    Defendant’s trial testimony
       Defendant commenced his testimony by admitting he had served time in prison
after being convicted of robbery in 1983 and 1991 and assault in 1987. He later testified
his reference in the recorded phone conversation with Brieanna to “‘ten of these’”
referred to ten prior robbery convictions in his 1991 case. On cross-examination, he
admitted he was actually convicted of 12 counts of robbery in 1991, but there were just
“ten actual incidents.” Later, he claimed he had been framed on six of those robbery
counts.
       Defendant admitted he was the person who robbed employees at the Frazier Park
Market and Vincenzo’s Pizza, but claimed not to remember these crimes. He attributed
this memory loss to blackouts brought on by heavy drinking. With respect to Vincenzo’s,
defendant explained he began drinking with Orion before they left home, then continued
drinking at the restaurant while waiting for a table and during dinner. Defendant claimed
he remembered nothing after about 8:30 p.m. and woke up the next morning in a motel,
without knowing how he arrived there. Defendant claimed the wig, mustache, and goatee
were parts of his Halloween costume, which was “[s]ort of like Davy Crockett.”
       Defendant denied in his testimony that he committed any of the other charged
robberies and claimed his confession to Richards was a sham, except with respect to the
crimes at Vincenzo’s Pizza. Defendant explained he had invoked his Miranda rights
when Richards first tried to interview him on January 24, but Richards struck the table,
threatened defendant, and attempted to get defendant to talk. Then Newell interviewed
defendant and suggested defendant speak to Los Angeles officers because Brieanna
might be arrested. Defendant phoned Richards and complained about the confiscation of
his laptop and mobile phone. Richards promised to return these items, then came to the
police station with Reckleff.
       Defendant testified he met Richards and Reckleff in the “lobby” of the police
station and asked about Brieanna. Richards told defendant he had no interest in Brieanna.
Defendant turned to Reckleff and directed, “‘Get my attorney’s card out of my wallet. I
want to call him.’” Reckleff went to “the release desk” and asked for defendant’s wallet.


                                            16
Richards began speaking to defendant and said he knew defendant had committed the
robberies at Helda’s Beauty Salon and a fragrance shop. Defendant denied doing so.
Richards said he knew what defendant had done “up north” and said, “They got you good
on those.”
       Reckleff returned with the business card, but told defendant the jailer did not want
him to give defendant the card. He offered to write down the phone number for
defendant. Defendant agreed. Defendant intended to walk across the lobby to where
“there is a row of free phone calls” so he could talk to his attorney before any further
discussion with Richards. On cross-examination, defendant admitted the attorney whose
number Reckleff obtained for him was representing him on a workers’ compensation case
and in civil litigation stemming from the sale of a script defendant had written while he
was in prison.
       Defendant testified, “[Richards said] ‘We’ll go off the record.’ [¶] ‘Off the
record’ means that it can never be used against you. It can never be brought into a court
of law, okay? [¶] He says, ‘Just clean this stuff up. Just make me look good and I’ll go
up to bat for you up in the case in Santa Clarita.’ [¶] He says ‘If you just clean this stuff
up for me I will help you out;’ and so at that point I didn’t need to call my counsel. I said
‘Okay. That’s fine.’ [¶] Okay? So we go upstairs and we start to talk.” Defendant
asked Richards to confirm that he would “‘go up to bat’” for defendant on the Santa
Clarita case (Vincenzo’s) if defendant “‘cleaned this stuff up for’” Richards, and
Richards did so.
       Richards went through a list of crimes and gave defendant information about each
one. Richards would point to things in the police report he had in front of him, and
defendant would look where Richards was pointing and read the information in the
report, upside down, from across the table. Defendant testified, “I’m just agreeing to
what [Richards] said. Then there is times I’m making up stories as you’re going to hear
from my investigator.” Defendant explained he denied some of the crimes Richards
asked him about because he “was trying to make it look real.” Defendant continued, “I
was making up a story. I’m a writer. That’s what I do. [¶] I wrote a story for Detective


                                             17
Richards to look good in front of his supervisor. He cleared up all his crimes. He had
been going to Bakersfield, going all over to try to solve these crimes.” Defendant
maintained, “I did not confess to these things. [¶] I only agreed to what he told me; and
you will see through other testimony of my investigator and stuff there is things in there
that I’ve made up, that can’t possibly be true; and the reason I made them up was to make
my statement look that much more stupendous where he was gonna feel proud that he
solved all these unsolved crimes.” Defendant explained, “I said what I said based on not
a willingness to confess to crimes I didn’t commit. I did it to try to get some help for
what I knew I did; and what I knew I did I knew I was in trouble for, even though I
couldn’t recall specifically doing it, that I was intoxicated.”
       Defendant testified he purchased one airsoft gun for a minor who did odd jobs at a
home in which defendant was then living. Defendant only had it for a few minutes
before giving it to the minor. He purchased a second one to play “war games” with
friends sometime after Thanksgiving in 2009. After using it for that purpose, he removed
the orange tip to make the gun look like a real firearm, and that was the one used in the
robbery at Frazier Park Market. The BB gun seized from his room was a different one
that someone had given him around October or November of 2009.
       On cross-examination, defendant rejected the possibility that he committed any of
the other offenses charged while suffering a blackout. He also admitted he had lied to
Newell about putting his disguise in a trash can after the robbery at the Frazier Park
Market. Defendant testified he found his disguise, the stolen money, and the BB gun in a
plastic bag behind a liquor store in Frazier Park a day or two after that robbery. He
acknowledged the police report regarding the robbery at Starbucks did not mention the
robber wearing a fake mustache and listed both male and female witnesses, but defendant
had told Richards he wore the mustache while robbing a male victim there. Defendant
further acknowledged the police report regarding the robbery at Panera Bread listed the
amount of loss as $967.59, but he told Richards he obtained $300 from the robbery.
Defendant said he made up the amount.



                                              18
14.    Testimony of other witnesses called by defendant
       Reckleff denied having an “off the record conversation” with defendant and did
not think the recorded interrogation was “off the record.” He and Richards were together
from the moment they entered the jail through the time they “escorted [defendant] up one
floor via the elevator.” They were never out of sight or “earshot” of one another.
Reckleff recalled, “[A]t some point after the interview was ending I obtained a phone
number and wrote it down on this piece of torn paper.”
       Richards denied he had “an off the record conversation” with defendant. During
the process of checking defendant out of his cell to take him to an interrogation room,
Richards engaged in five to seven minutes of “small talk” with defendant that had
nothing to do with any of the robberies. Richards testified police officers do not have
“off the record” conversations; “It’s always on the record.” Richards denied he provided
defendant with any specific facts about the robberies he was investigating prior to the
recorded interrogation of January 25. Richards and Reckleff were not out of one
another’s sight or “earshot” during the entire time they checked defendant out of his cell
and took him upstairs to an interview room. Richards denied he had struck a table or
threatened defendant at any time. After defendant’s arrest, there were no additional
robberies committed with the same modus operandi, i.e., a White male with blue eyes
wearing a fake mustache, goatee, and wig, who posed as a customer, then displayed a
handgun and forced the victim to open the cash register before taking money from the till.
       Defendant’s investigator admitted he could not tell which of the 30 photographs
collectively contained in the five arrays he showed victims was defendant’s photograph.
Defendant provided his investigator with the five photographic arrays, and the
investigator did not know their original source.
       Brieanna testified that defendant did not seem drunk when she met him and her
family at the pizza parlor on the night of January 6. On the night of January 8 defendant
became more intoxicated after they left the Mexican restaurant and went to a bar. Before
they left the restaurant, defendant was intoxicated but behaving as he “normally did.”



                                            19
15.    Verdicts and sentencing
       The jury convicted defendant of 13 counts of second degree robbery and found he
had used a deadly and dangerous weapon in the commission of each of these crimes. The
jury acquitted him of two counts of attempted robbery, which pertained to crimes at a
diversion program and Kentucky Fried Chicken on Topanga Canyon Boulevard.
Defendant waived a jury trial on prior conviction and prior prison term allegations. The
court found true three allegations defendant had prior convictions for serious felonies
within the scope of both Penal Code section 667, subdivision (a)(1)6 and the “Three
Strikes” law. It further found defendant had served two prior prison terms within the
scope of section 667.5, subdivision (b).
       For each count, the court imposed a third strike term of 25 years to life, plus 1 year
for the weapon enhancement, plus 15 years for the three section 667, subdivision (a)(1)
enhancements, for a total term for each count of 41 years to life. It stayed the terms on
four counts pursuant to section 654 and dismissed the prior prison term enhancements.
Defendant’s aggregate term is thus 369 years to life.
                                       DISCUSSION
1.     Defendant’s claim regarding violation of his right to a fair trial by an
impartial judge
       Defendant contends the trial judge “abandoned his impartiality,” “acted like a
second prosecutor,” made comments and posed questions that “made clear his belief that
[defendant] was guilty,” “denigrated and disparaged” defendant in the presence of the
jury, interrupted defendant’s examination of witnesses, and sustained his own objections
to defendant’s questions. Defendant identifies 35 instances of such statements, questions,
and conduct that he contends demonstrate the judge’s bias and “misconduct,” and argues
the net result was a violation of defendant’s constitutional rights to a fair trial and
impartial judge. We disagree and conclude any possible error was harmless beyond a
reasonable doubt.


       6   Undesignated statutory references refer to the Penal Code.


                                              20
       a.     Pertinent legal principles and standard of review
       “Evidence Code section 775 ‘“‘confers upon the trial judge the power, discretion
and affirmative duty . . . [to] participate in the examination of witnesses whenever he
believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in
clarifying the testimony or covering omissions, in allowing a witness his right of
explanation, and in eliciting facts material to a just determination of the cause.’”’”
(People v. Harris (2005) 37 Cal.4th 310, 350 (Harris).) This power includes asking a
testifying defendant “‘questions designed to elicit facts unfavorable to his defense,
provided his constitutional rights are not infringed.’” (People v. Cooper (1963) 221
Cal.App.2d 448, 454.) “The court’s questioning must be ‘“temperate, nonargumentative,
and scrupulously fair”’ [citation], and it must not convey to the jury the court’s opinion of
the witness’s credibility.” (People v. Cook (2006) 39 Cal.4th 566, 597 (Cook).) In
addition, the court may not “‘“withdraw material evidence from the jury’s consideration,
distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s
ultimate factfinding power.”’” (Harris, at p. 350.)
       A trial court may also comment on the evidence and other matters so long as the
comments are accurate, temperate, nonargumentative, and scrupulously fair, and the court
does not directly express an opinion on the ultimate issue of guilt or innocence, withdraw
material evidence from the jury’s consideration, distort the record, expressly or implicitly
direct a verdict, or otherwise usurp the jury’s ultimate fact-finding power. (Cal. Const.,
art. VI, § 10; People v. Proctor (1992) 4 Cal.4th 499, 542.) Furthermore, “‘[i]t is well
within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that
attorney asks inappropriate questions, ignores the court’s instructions, or otherwise
engages in improper or delaying behavior.’” (People v. Snow (2003) 30 Cal.4th 43, 78
(Snow).)
       “Although ‘the trial court has both the duty and the discretion to control the
conduct of the trial’ [citations], ‘the Due Process Clause clearly requires a “fair trial in a
fair tribunal,” [citation], before a judge with no actual bias against the defendant or
interest in the outcome of his particular case. [Citations.]’ (Bracy v. Gramley (1997) 520


                                              21
U.S. 899, 904–905 [138 L.Ed.2d 97, 117 S.Ct. 1793].) The role of a reviewing court ‘is
not to determine whether the trial judge’s conduct left something to be desired, or even
whether some comments would have been better left unsaid. Rather, we must determine
whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as
opposed to a perfect, trial. [Citation.]’ [Citation.] In deciding whether a trial court has
manifested bias in the presentation of evidence, we have said that such a violation occurs
only where the judge ‘“officiously and unnecessarily usurp[ed] the duties of the
prosecutor . . . and in so doing create[d] the impression that he [was] allying himself with
the prosecution.”’” (Harris, supra, 37 Cal.4th at pp. 346–347.)
       A defendant must object in the trial court to allegedly improper questioning,
conduct, or commentary by the trial court in order to preserve the issue for appellate
review. (Cook, supra, 39 Cal.4th at p. 598; Harris, supra, 37 Cal.4th at p. 350; Snow,
supra, 30 Cal.4th at p. 78.)
       Although denial of trial by an impartial adjudicator constitutes structural error
subject to automatic reversal (Neder v. United States (1999) 527 U.S. 1, 8 [119 S.Ct.
1827] [citing Tumey v. Ohio (1927) 273 U.S. 510 [47 S.Ct. 437] as an example of one of
a “‘very limited class of cases’” involving structural error]; Arizona v. Fulminante (1991)
499 U.S. 279, 309–3010 [111 S.Ct. 1246] [harmless error rule applies to admission of
involuntary confession and noting rare examples of structural error, deprivation of right
of counsel and an impartial judge, which affect “the entire conduct of the trial from
beginning to end”]; Tumey v. Ohio, supra, 273 U.S. at p. 523 [court trial by village mayor
who had “direct, personal, substantial, pecuniary interest” in convicting defendant]),
misconduct by a court in commenting or questioning witnesses is subject to harmless
error analysis. (Cook, supra, 39 Cal.4th at p. 599 [applying Chapman v. California
(1967) 386 U.S. 18, 24 [87 S.Ct. 824] (Chapman) standard]; Harris, supra, 37 Cal.4th at
pp. 350–351 [applying People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) standard];
People v. Monterroso (2004) 34 Cal.4th 743, 783 [court’s comments subject to harmless
error analysis].)



                                             22
       b.       None of the trial court’s questions or remarks constituted prejudicial
       error.
       Defendant arguably forfeited his claims of misconduct by failing to object to any
of the court’s questions or comments. He argues any objection would have been futile
and would have further alienated the judge, and that no admonition could have cured the
prejudice. Although we do not necessarily agree with these assertions, we nonetheless
address defendant’s claim on the merits.
                (1)   The record demonstrates the trial court was not biased against
                defendant.
       A review of the entire trial record refutes defendant’s contention that the court was
biased against him. Indeed, the court often assisted defendant, who represented himself
throughout the proceedings, in presenting his case and cautioned him about perils posed
by his strategies and lines of inquiry. For example, the court coached defendant on when
and how he could read prior testimony into the record, how to use a document to attempt
to refresh a witness’s memory, how to introduce a witness’s prior inconsistent statement
from a source other than prior testimony, how to refresh recollection with an otherwise
inadmissible document, and how to address new matters in redirect testimony.7 The
court also attempted to clarify defendant’s questions when witnesses did not understand
them, 8 added parameters to questions defendant asked to eliminate vagueness, 9 and asked
questions to assist defendant in laying a foundation before asking a witness to refresh his
recollection from a police report. Several times the court suggested defendant read



       7 “You can redirect the jury to anything [the prosecutor] asks you. You can have
redirect examination of yourself and explain it.”
       8 As illustrative only are interchanges in which the court clarified that the question
concerned defendant’s private investigator and not a sketch artist, that the eyewitnesses
did not tell the authorities what the witness was stating in court, and that a question asked
what the police did when they entered the witness’s store.
       9 For example, the court’s question clarified the distance between the eyewitness
and the robber.


                                             23
additional testimony from the preliminary hearing that was potentially beneficial to his
defense.
        The court sometimes suggested how defendant should reframe questions or
approach particular subject matter. It asked questions that dispelled inferences
detrimental to defendant that the jury might draw from a witness’s testimony10 and
elicited testimony favorable to defendant.11 It also cautioned defendant that playing the
recording of his interrogation by Newell was “going to create great repudiation material
for the prosecution when it comes to final argument about you being under the influence”
and warned defendant about potentially waiving his “right to privacy or privilege . . . with
an agent” by calling his investigator as a witness.
        In addition, the court afforded defendant tremendous leeway in questioning
witnesses, including allowing him to ask questions of dubious relevance, ask
argumentative questions, and read into the record numerous excerpts from witnesses’
prior testimony at the preliminary hearing and other pretrial hearings even though
defendant had not established an evidentiary basis for its admission, such as a prior
inconsistent statement. The court even allowed defendant, without objection or
reprimand, to testify to hearsay it had already ordered him not to address. It spent a great
deal of time explaining the law to defendant. It allowed defendant to choose whether he
wanted to testify in narrative form (as he ultimately did), or pose questions, then answer
them.
        The court refrained from reprimanding defendant over disrespectful comments to
the court that defendant made in the presence of the jury. The judge personally made
numerous phone calls over the course of several days to resolve a problem defendant had
accessing funds in his inmate trust account. The judge personally phoned Brieanna to


        10The court’s questioning exposed the lack of bases for the witness’s testimony
that the robber must have been high on drugs.
        11
         The court elicited testimony that the witness was not present and was testifying
from looking at videos and that the witness had “no idea” whether defendant had a
weapon “that night.”


                                             24
secure her appearance for testimony in the defense case. In addition, the court requested
that the prosecutor assist defendant by phoning defendant’s witnesses and telling them
when to appear to testify in the defense case. The court also asked the prosecutor and her
law clerk to assist defendant by displaying exhibits for him on the overhead projector.
       When defendant informed the court he had been bitten by a spider, the court
allowed defendant to decide whether he wanted to suspend the trial for a day to get
treatment or carry on. The court even offered to provide an antibiotic defendant could
apply to the bite if jail medical personnel approved. When defendant elected to suspend
the trial and seek treatment, the court promised to call Brieanna and defendant’s
investigator to let them know not to come to the courthouse.
       Accordingly, we conclude the record does not support defendant’s threshold
contention the court was biased against him.
                (2)   The trial court did not commit prejudicial misconduct.
       A review of the entire trial record further reveals the vast majority of the
challenged questions and comments, read in their own context and in the context of the
entire record, did not constitute misconduct. Given the large number of challenged
questions and remarks, the length of most of the challenged passages, and the
harmlessness of any potential error (as discussed herein), we categorize, summarize, and
concisely address defendant’s contentions.
       Defendant’s contentions numbered 1 through 10 and 26 in his opening brief
(pertaining to questions the trial court posed to Hartman, Orion, Brieanna, De Los Santos,
Wills, Richards, Scott Hurwitz, Michael Ruiz, and Jeffrey Briscoe) fell well within the
court’s power, discretion, and duty to question witnesses to aid in eliciting the truth,
eliciting facts material to a just determination of the cause, preventing misunderstanding,
clarifying testimony covering omissions, and allowing a witness to fully explain the basis
for other portions of his or her testimony. Many of the court’s questions were ones that
probably would have been in the minds of jurors, especially in light of other testimony
and evidence.



                                             25
       For example, just before the trial court asked the questions challenged in
defendant’s contention number 26, defendant had asked Richards a series of questions
about whether Richards had followed up on information defendant had provided in his
videotaped January 25 interrogation, such as information about detention of another man
with regard to the Kentucky Fried Chicken robbery to which defendant confessed and
other robberies of Starbucks cafes by defendant’s prison acquaintance. Richards testified
he had not followed up on these matters and defendant repeatedly asked him why he had
not done so. Richards repeatedly replied he had not done so because defendant had
confessed to the robberies Richards was investigating. The court then asked, “Does it
seem that that’s something that needs to be investigated that people every day falsely
confess to serious crimes and that you’ve got to do something to disprove it? In other
words, prove a negative?” Richards replied, “No,” and the court followed up by asking
whether his tendency was to accept someone who confessed to a series of robberies at
their word unless he thought the person was insane. Richards replied, “Right, not when
they name specific facts about the crimes like he did.” These question provided Richards
with an opportunity to complete his explanation for his failure to investigate the matters
defendant had asked him about. In addition, to the extent defendant’s questions
insinuated Richards’s investigation was incomplete or faulty, the court’s questions
assisted in eliciting facts material to a just determination of the case.
       Similarly, most of the court’s questions and comments during defendant’s
testimony (defendant’s contentions numbered 11 through 25) were also proper exertions
of the court’s power, discretion, and duty to question witnesses to aid in eliciting the
truth, eliciting facts material to a just determination of the cause, preventing
misunderstanding, clarifying testimony covering omissions, and allowing a witness to
fully explain the basis for other portions of his or her testimony. Several of the
challenged exchanges dealt with defendant’s claim that his confession was actually an
“off-the-record” discussion to help Richards “clear the books” on the crimes in which
defendant lied about committing the charged offenses in the hope Richards would help
him on his cases “up North.”


                                              26
       For example, the court asked defendant why he was concerned about pleasing
Richards, how a false, off-the-record confession would help Richards if defendant’s
statements could not (as defendant argued) be used against him because the interrogation
was off-the-record, and why, if the interrogation were off-the-record, defendant made
several statements about destroying any possible defense. (Defendant’s contention
number 12.) These questions, along with the fundamental matter of why defendant
would falsely confess to the robberies, would naturally have been on the jurors’ minds.
The court’s questions gave defendant the opportunity to attempt to fill these obvious
holes in his defense. Defendant responded to each of the court’s questions with an
explanation. For example, the court asked about the seeming contradiction between
defendant’s claim that the books would be cleared and his statements in the recording
expressing concern about destroying his potential defense and hoping to get a 10- to
14-year sentence, and remarked, “That doesn’t seem to me the mindset of a man who
thought the books were going to be cleared and the cases were going to go away.”
Defendant responded, “Well, you’re forgetting the Santa Clarita case.” The court replied,
“All right. You may continue.”
       We further note that by the time the court asked defendant these questions,
defendant had already testified several times, without interruption or interference by the
court, that Richards offered to have an off-the-record conversation and requested
defendant to help him “clear the books” in exchange for help with cases “up North.”
Defendant had not explained, however, the inherent flaws in his story that the court
explored with its questions. The court was not, as defendant argues, attempting to cast
doubt on defendant’s testimony but, as the court explained, “asking [him] general
questions and giving [him] the opportunity” to plug the holes in his defense. Notably,
when the court told defendant to continue with his testimony after he had responded to
several questions, it said, “You can continue you’re explaining to us why the seeming
confessions aren’t confessions and what you were intending to do by talking to Detective
Richards . . . .”



                                            27
       Several of defendant’s contentions pertain to the court’s attempts to prevent
defendant from placing a Miranda claim before the jury, in violation of the court’s prior
orders. (Defendant’s contentions 13, 17, 18, and 20.) The trial court had denied
defendant’s Miranda motion before trial and forbidden him to raise it before the jury.
       Before the court asked the questions or made the remarks defendant challenges on
appeal, defendant had testified at least four times, without interruption or interference,
that when Richards and Reckleff came to see him on January 25, he directed Reckleff to
retrieve an attorney’s business card from defendant’s wallet because he intended to phone
the attorney before further conversing with the detectives; Richards, however, tricked
defendant into not phoning the attorney by asking him to speak “off-the-record”—which
defendant explained meant his statements could not be used against him in court—to help
Richards clear his books. At the end of the court day after defendant so testified the
second time, the court sternly warned him outside the presence of the jury that it would
not allow him to “interject with impunity your version of what the law says and what
Miranda means and how it applies to this case. [¶] That’s over.” The court warned, “I
won’t permit it; and every time you do it I’ll correct it. I will interrupt and correct it so
that the jury has it properly in context.” Defendant nevertheless got away with repeating
his testimony on his statement not being admissible two more times before the court
fulfilled its promise to interrupt and correct him.
       The fifth time defendant reiterated in testimony that his “off the record” statement
could not be used against him, the court interrupted to say “off the record” did not
“necessarily” mean the statement could not be used against defendant in court.
Defendant responded, “It does mean that.” The court replied, “I’m sorry. It doesn’t, and
the jury is to disregard your statement in that regard.” The court’s remark was in no way
improper. Defendant had repeatedly violated both the court’s pretrial order and its
warning during the trial and was effectively attempting to instruct the jury on a point of
law. The court’s remark merely attempted to prevent the jury from mistakenly believing
that defendant’s Miranda rights had been violated and his confession was inadmissible.



                                              28
       On cross-examination, the prosecutor gave defendant an opportunity to explain
what “off the record” meant to him and he did so. In the exchange with the court
defendant challenges on appeal (contention number 13), the court asked defendant,
“That’s your version, that he told you that it would be off the record?” Defendant
responded, “After I requested counsel, yes, that I was going to call counsel prior to us
engaging in the conversation . . . .” The court then asked whether Richards told him at
the start of the January 25 interrogation that everything he said “can and will be used
against you,” whether defendant had been given his Miranda rights “24 hours earlier,”
whether he had invoked his rights at that time and did not talk, whether Richards had
“reminded” defendant of his Miranda rights on January 25 during the recorded
interrogation, and whether defendant “knew at that time that part of the Miranda rights
were anything you say could be used against you.” To the final question, defendant
replied, “Nope, because he said it’s off the record.” The court asked whether the
representation that the interrogation was “off the record” appeared in “any video,” and
defendant replied, “No, it’s downstairs where it’s unrecorded.” These questions by the
court were proper attempts to elicit the truth and prevent the jury from mistakenly
believing, as defendant clearly desired, that his Miranda rights had been violated and his
confession was inadmissible. Given defendant’s persistent disregard of the court’s
rulings and warnings regarding the Miranda claim, the court’s challenged exchange with
defendant was extraordinarily mild, as well as completely proper.
       At most, portions of three of the statements and questions challenged on appeal
seem unduly confrontational and accusatory, and are therefore troubling to us.
       In the exchange challenged in defendant’s contention number 15, the court asked
defendant a series of questions about the robberies at Vincenzo’s Pizza and the Frazier
Park Market that naturally would have occurred to the jury. Defendant had admitted at
trial he was the perpetrator of these crimes but relied upon an intoxication defense. The
court’s questions initially explored obvious points, such as whether defendant robbed
Vincenzo’s to get money to buy drinks at the Mexican restaurant and why defendant had
his gun with him at Orion’s party if he did not intend to commit a robbery in the area.


                                            29
The court then asked about the market: “You planned to rob it, didn’t you, before you
got there?” After defendant denied such a plan, the court stated, “And you were a parolee
and you knew you couldn’t own a deadly or dangerous weapon as opposed to a firearm.”
After defendant proclaimed he had no firearm, the court reframed the same assertion as a
question. As defendant began to respond with a reference to Richards, the court
interrupted to ask, “The question is what was in your mindset?” Defendant replied
nonresponsively, “No. I did not.” The court asked, “What were you doing with a gun
before the Frasier Market incident?” Defendant said, “I told you,” then explained about
playing war games with other people and reiterated it was “just a soft airgun, you know.”
The court then asked, “You told us you wrote a 4500 page manuscript[12] that you were
going to sell to the studios?” Defendant replied he had sold it. The court asked, “You
wrote such a thing?” After defendant confirmed he had, the court asked, “Was it fiction
or non-fiction?”
       In the exchange challenged in defendant’s contention number 23, after defendant
again testified that he read the information he provided Richards about the various
robberies from the police reports, the court asked defendant several questions about
whether he was “setting [Richards] up with a lie.” Defendant responded to the court’s
questions and proclaimed he was telling Richards the story he wanted to hear. The court
asked whether that was on the recording, and defendant replied, “No, downstairs before
we went up there.” The court responded, “So that’s a convenient compartment, wouldn’t
you say, for anything you want this jury to believe? You tell them something was said
off the record and that’s downstairs.” Defendant said he had “physical evidence of that.”
The court responded, “To you do the means justify the ends as long as you get your
way?” The court thereafter asked several apt questions about how Richards could
possibly benefit from a false confession.




       12Defendant told Richards and testified at trial that he had written an extremely
lengthy “manuscript” and sold it to the Cannon Group.


                                            30
       In the exchange challenged in defendant’s contention number 24, the court asked,
“How do we know you’re not using us as your next Detective Richards with a story?”
The court then rephrased, “[H]ow do we know whether you’re lying in this case as you
lied in the previous matter to Richards?” Defendant began explaining by reference to his
intention to play the video during his closing argument, but the court interrupted: “I want
to know is there some criteria that we can employ to determine whether you’re doing to
us what you claim you did to Richards?” Defendant replied he was “showing you from
the evidence of the transcript of how this is done and how it was documented.” The court
responded, “I understand, but you lied to Richards. You’re admitting it now. You set
him up . . . .”
       Even if we were to conclude the trial court erred with respect to any or all of the
challenged questions and remarks, we would conclude that such errors were harmless
beyond a reasonable doubt (Chapman, supra, 386 U.S. at p. 24), given the strength of the
prosecution’s case. In a videotaped confession played repeatedly at trial, defendant
confessed to committing every count of which he was convicted. Although defendant
claimed his confession was false, his claim was inherently implausible and contradicted
by the testimony of Richards and Reckleff. The natural inference that it was a legitimate
confession, not merely a sham to help a detective clear his books and look good to his
supervisor, was strengthened by the extensive details defendant provided regarding the
crimes, his statements during the confession to the effect he was destroying his potential
defense to the robberies, his statement in his recorded telephone conversation with
Brieanna about the Frazier Park Market robbery that there had been “ten of those,” his
confession to Newell regarding the Frazier Park Market robbery, and his admission to
Newell during the preliminary hearing that he committed the Los Angeles County
robberies.
       Defendant’s confession was corroborated by very strong evidence of defendant’s
guilt, including defendant’s possession, at the time of his arrest, of (1) a black wig, fake
mustache, fake goatee, and adhesive for the fake facial hair, as used in every count of
which defendant was convicted and the Frazier Park Market robbery, and (2) clear plastic


                                             31
gloves matching those used in six of the counts of which he was convicted and the
Frazier Park Market robbery. Except in the robbery at the beauty salon, a distinctive
modus operandi was utilized in every robbery, including the robberies at Vincenzo’s
Pizza and the Frazier Park Market, which defendant admitted at trial he had committed.
Defendant even described his modus operandi to Richards during his recorded January 25
confession, and his explanation matched the actual distinctive modus operandi used in the
robberies of which defendant was convicted. After defendant’s arrest, no additional
robberies utilizing the same distinctive modus operandi were reported. Also, the victims’
descriptions of the robber were largely consistent across all of the counts of which
defendant was convicted, and the jury was able to observe whether defendant matched
these descriptions.
       In addition, there were videos or photos of the robber and robbery in eight of the
crimes of which defendant was convicted, as well as the Frazier Park Market robbery,
and these were played repeatedly during trial, thereby providing the jury with an
opportunity to compare the appearance of the robber, his wig, and his fake facial hair to
that of defendant, his wig, and his fake facial hair during the robberies at the Frazier Park
Market and Vincenzo’s Pizza. Defendant was identified as the perpetrator of every crime
of which he was convicted. Fifteen victims or witnesses of those crimes, as well as the
victim of, and a witness to, the Frazier Park Market robbery, identified defendant as the
robber. Although most of the victims who were asked to make an identification from
defense photographic arrays did not choose defendant’s photograph, defendant’s own
investigator testified he could not determine which of the 30 photographs in the arrays
was a photograph of defendant.
       Furthermore, the court repeatedly instructed the jury not to take anything the court
said or did as an indication of what the court thought of the facts and witnesses or what
the verdict should be. During or after a few of the exchanges defendant challenges on
appeal, the court stated, in the presence of the jury, that the jurors, not the court, were the
ones who would evaluate, and who needed to understand, the testimony.



                                              32
       The question is not whether we “endorse all the trial court’s questioning . . . ,
indeed, [we] would find some of it inappropriate.” (Harris, supra, 37 Cal.4th at p. 350.)
The question is whether “the evidence of guilt was strong and the weaknesses in
defendant’s assertion of innocence would have been apparent to the jury even absent the
court’s questions.” (Ibid.) “It is not reasonably probable that the jury would have
reached a different guilt verdict had the court refrained from asking [the challenged]
questions.” (Id. at pp. 350–351.)
       For all of these reasons, any errors with respect to the challenged questions and
remarks were necessarily harmless beyond a reasonable doubt.
2.     Defendant’s claim regarding the court’s statement that defendant did not ask
for an attorney’s business card before the January 25 interrogation commenced
       a.     Proceedings in the trial court
       The trial court repeatedly advised the jury throughout the trial that it was required
to accept the trial court’s determination that defendant’s rights pursuant to Miranda had
not been violated and Miranda was not an issue for the jury to determine.
       Defendant testified at least ten times at trial that he told Reckleff to retrieve an
attorney’s business card from defendant’s wallet after defendant had been taken out of his
jail cell, but before he went upstairs with Richards and Reckleff for the January 25
interrogation. Neither the prosecutor nor the court objected to, or interfered with, his
testimony, even when defendant characterized his action as a request for counsel and said
he “didn’t get to call my attorney like I tried to do downstairs before he promised me it
was off the record.”
       Defendant then called Reckleff and examined him at length about the request to
get an attorney’s card from defendant’s wallet and the surrounding circumstances.
Reckleff did not recall doing so, and the court allowed defendant to read into the record
testimony by Reckleff at the hearing on defendant’s Miranda motion in which he testified
he did not recall doing so, but if defendant had asked him to do so, he “‘certainly would
have.’” Defendant asked whether Reckleff would have had to request defendant’s



                                              33
property from the jailer, and Reckleff replied, “I don’t know. I mean this was new to
me.” Reckleff then added he did not understand the question.
       In the presence of the jury, the court stated, “I don’t see the relevancy of it. [¶]
I’ve already ruled on a pretrial motion that there was no situation as you maintain it
exists. So we’re not going into it. [¶] That’s a legal—that’s a binding legal decision this
Court has already made. [¶] Only thing you can go into is the context in which you gave
the statement as to whether or not it was forced, coerced—” Defendant interrupted and
said, “Or a ruse.” The court continued: “No. I’ve already given you citations on that;
and I don’t want you trying to suggest to the jury that by way of argument, which I think
your last statement was that any such thing occurred. [¶] I read to you from the
handbook on the subject matter, the U.S. Supreme Court and California Supreme Court
decisions on that subject matter, which I’m not going to repeat in front of the jury; but
you know what the guidelines and boundaries are at this particular phase. [¶] So we’re
not covering the card from an attorney. You did ask for it at the end of your interview
after you talked to Detective Richards, and it’s in the transcript that the Court will allow
into evidence. The jury has already heard it. [¶] You did ask for a card after the entire
interview was over, not before. That’s the Court’s ruling.” The court further explained,
“The reason I’m being so specific, I don’t want the jury to be under the impression that
this court is keeping something away from them that they should be able to consider. [¶]
I want them to understand the dynamics of what’s taking place in this particular
courtroom and why the court is ruling as it did so that there is no suggestion that you
have been deprived of any constitutional rights.”
       Two questions later, defendant again tried to ask Reckleff about a card. The court
responded, “The Court’s ruling stands. [¶] I am precluding any testimony and questions
regarding this particular subject matter unless there is some incredible spin on it that I
can’t follow that has to do with something that’s beyond my comprehension.” The court
continued, “You can attack the validity and the credibility and believability of the
statement you gave to Richards.” Defendant insisted he had “proof right here in this



                                              34
transcript that [Reckleff’s] never seen that proves I did it before the—” The court
replied, “Then get to that.”
       Defendant continued to question Reckleff about whether defendant had asked
Reckleff to get business cards from his wallet, read a portion of the transcript of the
January 25 interrogation into the record, then asked Reckleff to look at a portion of a
different transcription of the same interrogation that the court and prosecutor
characterized as “less accurate” than the one introduced at trial. In the presence of the
jury, the court stated that merely saying he had an attorney’s business card was
“meaningless. [¶] It’s whether or not they say when they’re told their Miranda rights ‘I
want a lawyer.’ [¶] That doesn’t mean that you asked for a lawyer simply by saying ‘I
got one.’” The court continued, “We’ve already had that hearing. That’s the whole
problem, and I’m making the ruling. [¶] You did not take your Miranda rights. I’ve
made the ruling you did not take your Miranda rights before the conversation with
Detective Richards. [¶] In fact, it’s very clear . . . the jury now knows you called him
and asked to talk to him; and he reminded you of the fact that the day before you took
your Miranda rights at Topanga on January 24, 2010, and you discussed it with him on
the transcript of the 25th and he went over it with you; and you said ‘Yes, I wish to give
up my rights.’ [¶] You even said you knew what your rights were; and the case law is
very clear. If you’re Mirandized on one day it lasts for a while.” Defendant agreed.
       The court continued, “This was only the very next day, but you initiated the phone
call. You’re the one who wanted to talk to him. [¶] You’re the one that asked for
lawyers’ cards after your conversation, not before the conversation, and you never said
unambiguously—” Defendant interrupted: “That’s your interpretation.” The court
responded, “I’ve made the ruling, which is binding; and unless and until a higher court
makes a ruling my ruling is incorrect, it’s going to stand for the purposes of this trial; and
I am now ruling that you may not go into this subject matter. It’s a legal issue which the
Court decided. [¶] You put your interpretation on why things happened during that
interview, which I did allow because the Supreme Court of the United States under Crane



                                              35
versus Kentucky [(1986) 476 U.S. 683 [106 S.Ct. 2142]] has stated the jury is entitled to
know the surrounding facts and circumstances that take place during an interview.”
       The court further continued, “In this particular case I have made a ruling and you
have put your best foot forward in that regard, and you lost on that issue; and I don’t want
it suggested by you to the jury you’re getting shortchanged here, and that’s why I’m
going into such detail on the record. [¶] No lawyer will be permitted to do what you’re
doing in a court of law. I’ve given you incredible leeway. [¶] Skip this aspect. We’re
not going into it again. Do you understand? [¶] I’m stating it for the last time. We are
not going into that subject matter. I have ruled on it. The ruling is binding at this time.
Okay?”
       Defendant again asked Reckleff about writing down information from an
attorney’s business card found in defendant’s wallet and whether defendant “actually
mention[ed]” Jamie Tytell’s name in a “hearing.” The court noted, “That’s going back to
the issue of whether you maintain you were asking for an attorney.” Defendant
responded, “It’s right there.” The court stated, “I’ve precluded that,” and told defendant
he could not examine Reckleff further unless he went on to “a totally different subject
matter.” The court noted, “[T]he jury can review that, even though they can’t reverse the
court’s ruling, and see that you never asked for a lawyer during the proceedings.”
Defendant replied, “They’re free to determine the truth.” The court responded, “No,
they’re not. I’ve made that ruling. I’ve already told them, and that’s why I told them
because you’re trying to prevent—” Defendant interrupted the court, and the court
ordered him to be quiet, then moved on to allow the prosecutor to cross-examine
Reckleff. All of the aforementioned remarks were in the presence of the jury.
       At the end of that court day, the court told the jury, “At this particular time I want
to say this. There has been some discussion between defendant and counsel as to rulings
that the court has made, and I hope none of you are embarrassed by the exchange
between the parties. [¶] Welcome to the Superior Court. This happens often in court
and in every court in the land every day. [¶] It’s not like all nice fuzzy, touchy, feely,
huggy stuff. It’s real, stuff and this is what happens in a court of law. [¶] So don’t hold


                                             36
the discussion that you heard between counsel and the court against either side. This
takes place sometimes; and you know the case is wrapping up and tempers are getting
short in connection with these proceedings. [¶] All I can say is you will rely upon the
evidence that you heard from the mouth of witnesses and that have been marked as
exhibits in this particular case and forget that there was an exchange. [¶] Normally what
transpires, what happens is when there is a problem such as this, the court sends the jury
out and then has the matter resolved between two counsel and then brings it back in. [¶]
The way we were going today, the questions were being asked so often the court felt it
was so repetitive that you would each have lost five pounds in the process of going to and
from and going in and out. So we did it in open court. [¶] That’s why I advise you not
to hold it against anybody, the decibel level between counsel and the court or the nature
of the objections that were made and the inability to refrain from asking the same
question again.”
       Defendant contends the trial court invaded the province of the jury by stating it
had ruled defendant did not ask for the attorney’s business card before the interview, only
at the end of it. He argues this violated his rights to a jury trial and to present a defense,
and subverted the presumption of innocence.
       b.     Pertinent legal principles
       Both the voluntariness of a confession and compliance with the requirements of
Miranda are legal issues to be determined by the court, not a jury. (Crane v. Kentucky,
supra, 476 U.S. at pp. 687–688 (Crane); People v. Cottone (2013) 57 Cal.4th 269, 289;
People v. Jiminez (1978) 21 Cal.3d 595, 607, overruled on another ground in People v.
Cahill (1993) 5 Cal.4th 478, 509, fn. 17.)
       A defendant who has been unsuccessful in seeking to exclude his confession as
involuntary or obtained in violation of Miranda is nonetheless allowed to present
evidence regarding the circumstances surrounding his confession to the extent they are
relevant to its credibility. In Crane, supra, 476 U.S. 683, the United States Supreme
Court explained that “evidence about the manner in which a confession was secured will
often be germane to its probative weight, a matter that is exclusively for the jury to


                                              37
assess.” (Ibid.) “Accordingly, regardless of whether the defendant marshaled the same
evidence earlier in support of an unsuccessful motion to suppress, and entirely
independent of any question of voluntariness, a defendant’s case may stand or fall on his
ability to convince the jury that the manner in which the confession was obtained casts
doubt on its credibility.” (Id. at p. 689.) A blanket exclusion of such evidence violates a
defendant’s federal constitutional right to present a defense (id. at pp. 690–691), but the
error is subject to harmless error analysis (id. at p. 691).
       Similarly, the California Supreme Court has explained, “The defense is free,
however, to ‘present evidence of the circumstance under which a confession . . . was
made where such evidence is relevant to the credibility of the statement, even though
such evidence may duplicate to some degree the evidence presented to the court on the
issue of admissibility.’ [Citation.] Based on such evidence, the defense may argue that
the defendant did not make the statement or that the evidence carries no weight because
the defendant was confused, fatigued, or tricked, thus depriving the statement of any
probative value.” (People v. Cottone, supra, 57 Cal.4th at p. 289.)
       c.     Any error by the trial court was harmless beyond a reasonable doubt.
       Assuming for the sake of argument the trial court violated defendant’s right to
present a defense or jury trial by “ruling,” in the presence of the jury, that defendant did
not ask for his attorney’s business card before the January 25 interrogation, but only at
the end of it, the error was harmless beyond a reasonable doubt (Chapman, supra, 386
U.S. at p. 24). First, notwithstanding the court’s “ruling,” defendant testified over and
over again, without interference from the court, to the circumstances he contended
reflected poorly upon the reliability of his confession, i.e., before the interview began he
directed Reckleff to get an attorney’s business card from defendant’s wallet, he intended
to walk across the “lobby” to a place he could make a free phone call and call the
attorney before speaking to Richards, and Richards asked him to “clear the books” in an
“off the record” conversation. Defendant even went into details, such as Reckleff writing
down the attorney’s phone number on a scrap of paper (introduced as an exhibit) because
the jailer wouldn’t release the card to defendant. He also argued the same facts, without


                                              38
interference by the court. The jury repeatedly watched the video recording of the January
25 interrogation, as well as the January 24 interrogation and the intervening interrogation
by Newell, and could evaluate defendant’s credibility based upon his demeanor, tone of
voice, enthusiasm, and any other pertinent factors.
       Furthermore, as set forth in the context of the prior issue, the reliability of
defendant’s confession was supported by evidence such as identifications of defendant as
the robber by victims and witnesses to every robbery of which he was convicted; a
unique modus operandi that linked defendant to the crimes through the crimes defendant
admitted committing at Vincenzo’s Pizza and Frazier Park Market; defendant’s
description of his modus operandi to Richards during his recorded January 25 confession;
and the seizure of a wig, fake facial hair pieces, adhesive for the fake facial hair, and
clear plastic gloves from defendant’s room; and the cessation of robberies utilizing the
same distinctive modus operandi upon defendant’s arrest. In addition, the jury viewed
videos and photographs of eight of the robberies of which defendant was convicted and
the Frazier Park Market robbery, and thus was able to compare the appearance of the
robber, his wig, and his fake facial hair to defendant, his wig, and his fake facial hair
during the robberies defendant admitted committing at the Frazier Park Market and
Vincenzo’s Pizza.
       Additional doubt was cast upon defendant’s claim that his confession was a sham
through his statement that there had been “ten of those” in his recorded telephone
conversation with Brieanna about the Frazier Park Market robbery, Newell’s testimony
defendant admitted during the preliminary hearing that he committed the Los Angeles
County robberies, defendant’s statements during his confession to the effect that he was
destroying any possible defense to the charges, defendant’s denial of some of the
robberies Richards asked him about, defendant’s request at the end of the January 26
interrogation for “a couple [of] attorney’s cards” from his wallet, and defendant’s
acknowledgement on cross-examination at trial that the attorney whose card he claimed
Reckleff retrieved for him before the January 25 interrogation, Jamie Tytell, represented
defendant in a workers’ compensation claim and in his civil action against the Cannon


                                              39
Group pertaining to his script, though defendant claimed Tytell also “was assisting me in
a habeas corpus petition that was pending.” Defendant also never mentioned wanting to
speak to an attorney during the January 25 interrogation. Indeed, he said, “I could go pro
per for right now.”
       In light of all of the evidence and circumstances, there is no reasonable possibility
that the jury would have concluded defendant’s confession was a sham if it had not heard
the court “rule” that defendant did not ask for his attorney’s business card before the
interrogation. Accordingly, any error by the court in announcing such a ruling was
harmless beyond a reasonable doubt. (People v. Ochoa (1998) 19 Cal.4th 353, 479.)
3.     Defendant’s claim regarding the court’s direction to disregard certain
testimony by defendant
       a.     Proceedings in the trial court
       Defendant repeatedly testified to both Richards’s request to speak “off the record”
and defendant’s understanding of the meaning or legal significance of “off the record.”
The first time, defendant testified Richards said, “‘We’ll go off the record.’ [¶] ‘Off the
record’ means that it can never be used against you. It can never be brought into a court
of law, okay?” Neither the prosecutor nor the court objected to, or interfered with, this
testimony. The second time, defendant testified Richards said, “‘We’re going to talk off
the record.’ [¶] He says ‘You can’t get hurt.’” Soon thereafter, defendant reiterated that
“off the books [sic]” “means that it can never be used in a court of law against you. [¶]
Anything I said in an off the record conversation cannot be used in a court of law.” The
court then noted defendant had received Miranda warnings on January 24, including an
advisement that “anything you said would be used against you,” and had invoked his
rights, but on January 25 he had called Richards and said he wanted to talk and would
waive his Miranda rights. The court asked, “Did you interpret that as having no meaning
at all?” Defendant said he had not yet testified regarding that phone call, but was “going
to.” The court said, “All right,” and sent the jury home for the day.
       Out of the presence of the jury, the court warned, “You were arguing to the jury
legally speaking about what the Miranda implications are in this particular case, and I


                                             40
won’t permit that. [¶] You have already had a full scale hearing and this court has made
a determination as to the Miranda issues and your right to remain silen[t] and your right
to have counsel and your waiver of those rights on the 25th. [¶] That ruling stands. The
only thing that’s in issue is if there is a different meaning that you can attribute to what’s
on the tape as opposed to what appears to be a confession to many of the crimes. [¶] So
that’s what you’re doing on the stand now; but I’m not going to let you interrupt with
impunity or interject with impunity your version of what the law says and what Miranda
means and how it applies to this particular case. [¶] That’s over. That’s over. That’s a
legal issue that’s been decided; and I know you know the difference. [¶] You’re trying
to get your best shot in, and I won’t permit it; and every time you do it I’ll correct it. I
will interrupt and correct it so that the jury has it properly in context.”
       The next day, defendant again testified that Richards “told me it was off the
record. It could never be used against me in a court of law.” A little later in the same
court session, defendant again testified that Richards “said this would be off the record—
in other words, don’t call your attorney, we’ll go off the record. It can never be used
against you.” Soon thereafter, defendant again testified, “Then [Richards] came back and
says ‘Lookit, Brammer, I came all the way down here to talk to you. We’ll go off the
record.’ He says ‘It can’t be used against you. Just clean this stuff up for me. Clear this
stuff up.’”
       The court asked whether Richards promised defendant anything. Defendant
reiterated, “He said it was off the record.” The court asked why defendant “would . . .
bother talking to him if you weren’t getting a promise as to anything that could be done
to help you? Because he kept saying in the transcript of the 25th, which the jury has, he
can’t promise you anything. That’s up to the D.A. if they want to cut a deal.” Defendant
agreed, then stated, “But he said it’s off the record, and off the record I know what that
means. That means it cannot be used against you in a court of law.” The court
responded, “Doesn’t mean that necessarily—” Defendant interrupted, saying, “It does
mean that.” The court replied, “I’m sorry. It doesn’t, and the jury is to disregard your
statement in that regard.” The court invited defendant to continue testifying. Defendant


                                              41
stated, “That is why I proceeded in the way I proceeded. He told me it was off the
record.”
       The court questioned defendant about how Richards was supposed to benefit from
defendant’s sham confession that could not be used. Defendant replied, “Because he
closed the books on them. They do it all the time, your honor.” The court asked, “How
do you know they do it all the time?” Defendant replied, “Because I have experience
with the law and I’ve seen it. There is a guy in this courthouse that did it.” The court
responded, “Okay, but nobody knows what the facts and circumstances were. He may
have pleaded to a murder and they excused a bunch of robberies.” Defendant asserted,
“It was a bunch of robberies.” The court said, “[It’s] all hearsay. [¶] I’m telling the jury
to disregard what the defendant said as to they do it all the time. [¶] He’s not an expert,
and he has no idea what was being done in this particular case.” All of these statements
were made in the presence of the jury.
       On cross-examination the next day, the prosecutor asked defendant about his claim
his interrogation was off-the-record. After the court asked defendant some questions
about being given his Miranda rights and invoking them the day before, then being
“reminded . . . of your Miranda rights on the 25th,” it asked, “You knew at that time that
part of the Miranda rights were anything you say could be used against you, correct?”
Defendant replied, “Nope, because he said it’s off the record.” The prosecutor then asked
defendant, “What does ‘off the record’ mean to you?” Defendant answered, “It means
it’s off the record. We’re clearing the paperwork and it cannot be used against you.” The
prosecutor asked, “‘Off the record’ means clearing paperwork?” Defendant responded,
“Yeah. It’s done all the time.” Later the same day, defendant again testified Richards
said, “‘We’ll go off the record. This can’t be used against you.’”
       In argument, defendant reiterated “it was an off the record conversation. In other
words, I entered into this whole agreement with him to go upstairs, clean up all this
paperwork.”
       Defendant contends the court invaded the province of the jury, thereby violating
his rights to a jury trial and to present a defense, and subverting the presumption of


                                             42
innocence by directing the jury to disregard defendant’s statements that “off the record”
meant “cannot be used against you in a court of law” and that police officers benefit by
closing the books on crimes “all the time.”
       b.     Pertinent legal principles
       “‘“[I]t is a fundamental and historic precept of our judicial system that jurors are
restricted solely to the determination of factual questions and are bound by the law as
given them by the court. They are not allowed either to determine what the law is or
what the law should be.” [Citation.]’” (People v. Williams (2001) 25 Cal.4th 441, 455;
§ 1126.)
       c.     The trial court did not err; moreover, any possible error would be
harmless beyond a reasonable doubt.
       With respect to the meaning of “off the record,” the court did not interfere on any
of the numerous occasions when defendant testified Richards told him an off-the-record
statement could not be used against him, including when the prosecution elicited upon
cross-examination yet another repetition of that testimony even after the challenged
interchange between the court and defendant. The court only told the jury to disregard
defendant’s statement when he phrased his testimony to state the legal effect of an off-
the-record statement: “That means it cannot be used against you in a court of law.” The
court had previously warned defendant it would not permit defendant to “interject with
impunity your version of what the law says and what Miranda means and how it applies
to this particular case.” Although defendant was allowed to testify regarding
circumstances surrounding his confession to attempt to show it was a sham, he was not
entitled to convey to the jury either the law or his understanding of the law.
       Defendant’s testimony that police officers benefit by closing the books on crimes
all the time, without actually solving them, was also improper. Defendant was not, and
apparently never had been, a police officer, and the record reveals no other foundation for
his expertise on police practices of falsely declaring crimes solved. His ensuing
explanation about having “seen it” and “a guy in this courthouse” did not provide the
necessary foundation, and indeed revealed his lack of personal knowledge and expertise.


                                              43
       Moreover, defendant testified repeatedly that his understanding was that an off-
the-record interrogation could not be used against him and that Richards said he wanted
to clear the books on the robberies and look good to his supervisor. The court’s
directions to disregard the two statements in issue had no effect upon that testimony.
       Even if we were to assume, for the sake of argument, that the court erred by
directing the jury to disregard the two statements, we would necessarily conclude the
error was harmless beyond a reasonable doubt, for the reasons stated in the two prior
sections of this opinion.
4.     Defendant’s claim regarding wearing jail clothing at the preliminary hearing
       a.     Proceedings in the trial court
       After Silva (Baskin Robbins), Garcia (Baskin Robbins), Abramowitz (Starbucks),
Reid Hartman (Starbucks), and Pineda (Panera Bread) had testified at defendant’s
May 23, 2011 preliminary hearing and identified defendant as the robber, defendant told
the court, “Before I ever came in here, I asked Judge Lyons about this orange jumpsuit.
I’m asking for permission to remove this shirt. I have a white T-shirt. I think the orange
is overly suggestive. It’s just fundamentally unfair. I asked for my civilian clothes.”
Defendant then began to address prior motions to dismiss for violation of his right to a
speedy trial, then a written motion he had with him but had not been allowed to file.
Defendant then claimed when he had “announced ready,” he only meant “to a point so I
can hear my motion.”
       Judge Gelfound, responded, “As to the issue regarding your jumpsuit, you have
no right to have civilian clothes during a preliminary hearing. Obviously the court will
consider the fact and you can make the argument that you being in a jumpsuit that is
suggestive and the court should consider that in determining whether there is probable
cause to hold you to answer.”
       Between the preliminary hearing and the trial, defendant filed a motion to exclude
evidence of victim and witness identifications at the preliminary hearing, based upon the
theory his orange jumpsuit rendered those identifications unduly suggestive. His motion
was denied.


                                            44
       Defendant expressly declines to challenge the denial of his motion to exclude the
identification testimony. He instead contends the judge erred by “requiring him to wear
orange jail garb” on the theory “he [had] no right to have civilian clothes during a
preliminary hearing.” Defendant argues all of his convictions except the Vincenzo’s
Pizza counts must be reversed because the evidence of the identifications at the
preliminary hearing “formed such a significant part of the prosecution’s case” at trial.
       b.     Pertinent legal principles
       “Generally, a conviction will not be reversed because of errors or irregularities
that occurred at a preliminary hearing or grand jury proceeding, absent a showing that the
asserted errors ‘deprived [the defendant] of a fair trial or otherwise resulted in actual
prejudice relating to [the] conviction.’” [Citations.] (People v. Carrington (2009) 47
Cal.4th 145, 178.)
       c.     The judge’s purported error was harmless beyond a reasonable doubt
       As far as the record reveals, defendant had not raised the topic of clothing with the
judge until after four victims and one witness to a charged robbery had testified at the
preliminary hearing. With respect to those witnesses, defendant forfeited any appellate
claim that the judge erred by requiring him to proceed in jail attire.
       It does not appear from the record that defendant had other clothing, apart from a
white T-shirt, available to wear during the preliminary hearing. Because the record
reflects defendant was dressed in a “jumpsuit,” it is unclear whether “remov[ing] this
shirt,” as he proposed to do, would have concealed the orange jumpsuit from view of the
witnesses. Thus, the very circumstances of defendant’s request cast doubt upon his claim
of prejudice. Notably, defendant did not seek a continuance to obtain other clothing and
he admittedly announced “ready” without having other clothing available to wear.
       Moreover, as defendant acknowledges, the trial right of a defendant to wear
“civilian” clothing (Estelle v. Williams (1976) 425 U.S. 501, 503–505 [96 S.Ct. 1691];
People v. Taylor (1982) 31 Cal.3d 488, 494–495) has never been extended to the
preliminary hearing. Defendant argues for such an extension, citing People v. Fierro
(1991) 1 Cal.4th 173, 219–220, disapproved on another ground in People v. Letner and


                                              45
Tobin (2010) 50 Cal.4th 99, 205–207, which extended the requirement of “‘evident
necessity’” to shackling a defendant at the preliminary hearing.
       We need not decide whether to recognize a constitutional right to wear civilian
clothing at the preliminary hearing, however, because we can conclude, beyond a
reasonable doubt, that the judge’s purported error did not deprive defendant of a fair trial
or otherwise result in actual prejudice relating to his convictions.
       As previously addressed, defendant confessed to committing every count of which
he was convicted in a video-recorded confession played repeatedly at trial. His claim that
his confession was a sham was both inherently implausible and contradicted by the
testimony of Richards and Reckleff. His confession was corroborated by very strong
evidence of defendant’s guilt, including the seizure from defendant of a wig, fake facial
hair, and clear plastic gloves that matched those used in the charged robberies and the
robberies at the Frazier Park Market and Vincenzo’s Pizza, which defendant admitted at
trial he had committed. Defendant also admitted committing about ten robberies in his
recorded conversation with Brieanna, and Newell testified defendant admitted all of the
Los Angeles County charges in a conversation Newell had with him during a break at the
preliminary hearing. The jury also viewed photographic or video evidence of many of
the robberies in progress, and victims or witnesses identified defendant as the robber in
all of the counts of which he was convicted, as well as the robbery at Frazier Park
Market. Defendant was identified by a victim or witness at trial in nine of the counts of
which he was convicted.
       In addition, although defendant’s contention addresses eight preliminary hearing
identifications admitted at trial, four of those witnesses (Bashiz, Torres Zavala, Valdivia,
and Abramowitz) also identified defendant at trial. Defendant forfeited his claim
regarding Pineda by failing to object before Pineda testified, as previously addressed, and
Mendoza’s preliminary hearing testimony (including identification) was admitted
pursuant to stipulation. Thus, defendant’s challenge is properly addressed to only two
preliminary hearing identifications (De Los Santos and Amaya).



                                             46
       De Los Santos was a victim of the robberies at Domino’s, as to which his fellow
victim, Torres Zavala, testified and identified defendant at trial. Amaya was a witness to
the robbery at the Kentucky Fried Chicken charged in count 3, which was depicted on a
video recording viewed by the jury. On cross-examination by defendant at trial, Amaya
testified the person she identified at the preliminary hearing was wearing an orange
jumpsuit. The prosecutor asked her why she identified that person, and she replied it was
because at the time she remembered what the robber looked like. On re-cross
examination, she testified that she knew a suspect was going to be in court at the
preliminary hearing, and there was no one else in the courtroom “who possibly could
have been the suspect other than” defendant. Defendant elicited similar testimony from
other witnesses whose preliminary hearing identifications were introduced at trial.
       Defendant exposed and expanded upon his suggestive identification theory at trial.
Indeed, his jail attire at the preliminary hearing provided him with additional ammunition
to utilize in arguing witnesses’ identification testimony was unreliable. As the Attorney
General notes, “[E]ven if [defendant] wore civilian clothes, it still would have been
obvious to the [witnesses] that he was the defendant [because he] was the only person
seated at the defendant’s table.”
       Finally, we note the jury was instructed on evaluating identification testimony
with CALCRIM No. 315, which included factors such as failure to identify the defendant,
whether the witness was able to identify defendant in a photographic lineup, and “any
other circumstances affecting the witness’s ability to make an accurate identification.”
The jury was also repeatedly instructed on evaluating witness testimony using
CALCRIM Nos. 105 and 226.
       For all of these reasons, the judge’s purported error in ruling defendant had no
right to wear civilian clothing at the preliminary hearing was harmless beyond a
reasonable doubt.




                                            47
5.     Defendant’s claim regarding the failure to instruct sua sponte on theft as a
lesser included offense
       a.     Proceedings in the trial court
       When the court discussed jury instructions with the parties, defendant agreed that
instruction upon lesser included offenses, such as theft, was not warranted. On appeal,
however, defendant contends the trial court erred by failing to instruct sua sponte on theft
as a lesser included offense with respect to count 18, the robbery of Talamantez at
Vincenzo’s Pizza. He bases this contention on Talamantez’s testimony, which defendant
contends supported a conclusion “that Talamantez handed the money over to the assailant
because Ruiz told him to do so, not because he truly was afraid.”13
       Talamantez testified that after he rang up defendant’s order of a salad, causing the
cash register to open, he looked up and saw defendant holding a “gun over the counter to
my chest and said ‘Give me all the money.’” Defendant spoke in an average voice, “kind
of nonchalantly.” Talamantez testified, “I was a little flustered. Then I looked up and
then I saw the gun at my chest; and I kind of picked up the 20s and gave it to him and the
10s and the 5s, and then that was it really.” The prosecutor asked Talamantez how he
was “feeling when the gun was pointed at your chest?” Talamantez replied, “Just like a
surreal feeling because he handed it to me, and that’s when Wally heard it kind of. [¶]
Then he turned around and pointed at his face and said mind his business; and Wally
threw his hands up; and he said ‘Hurry up;’ and I gave him the 20s, 10s and the 5s.” The
court asked, “Were you afraid during this incident?” Talamantez replied, “It happened so
fast that I just couldn’t really comprehend it right away, but I wouldn’t say I was really
afraid. I was just kind of flustered.” The court asked, “Would you have turned the
money over if you hadn’t seen the gun?” Talamantez responded, “Probably not. I didn’t
find him very threatening looking.”



       13 The Attorney General did not argue that there was evidence that this robbery
was committed by means of force, and defendant asserted the absence of any such
evidence.


                                             48
         b.     Pertinent legal principles
         An offense is necessarily included in another if either the statutory elements of the
greater offense or the facts alleged in the accusatory pleading include all of the elements
of the lesser offense, so that the greater offense cannot be committed without also
committing the lesser one. (People v. Birks (1998) 19 Cal.4th 108, 117.)
         A trial court must instruct sua sponte on a lesser included offense if there is
substantial “‘evidence that, if accepted by the trier of fact, would absolve the defendant of
guilt of the greater offense but not of the lesser.’” (People v. Souza (2012) 54 Cal.4th 90,
115–116.) Substantial evidence in this context is “evidence from which a jury composed
of reasonable persons could conclude that the facts underlying the particular instruction
exist.” (Id. at p. 116.) The “‘substantial evidence requirement is not satisfied by “‘any
evidence . . . no matter how weak.”’”’ (Ibid.)
         The prejudicial effect of an erroneous failure to instruct on a lesser included
offense is analyzed pursuant to Watson, supra, 46 Cal.2d at page 836, that is, defendant is
required to establish that there is a reasonable probability he would have obtained a more
favorable outcome, absent the error. (People v. Moye (2009) 47 Cal.4th 537, 541.)
         “Robbery is defined as the taking of personal property of some value, however
slight, from a person or the person’s immediate presence by means of force or fear, with
the intent to permanently deprive the person of the property.” (People v. Marshall (1997)
15 Cal.4th 1, 34; § 211.) “‘Theft is a lesser included offense of robbery, which includes
the additional element of force or fear.’” (People v. Bradford (1997) 14 Cal.4th 1005,
1055.)
         Fear may be shown “‘“by proof of conduct, words, or circumstances reasonably
calculated to produce fear.”’” (People v. Brew (1991) 2 Cal.App.4th 99, 104.) There
need not be direct proof of fear; fear may be inferred from the surrounding
circumstances. (People v. Holt (1997) 15 Cal.4th 619, 690.) “An unlawful demand can
convey an implied threat of harm for failure to comply, thus supporting an inference of
the requisite fear.” (People v. Morehead (2011) 191 Cal.App.4th 765, 775.) The victim
need not explicitly testify that he or she was afraid; evidence supporting an inference that


                                               49
the victim was in fear, and that his or her fear allowed the robber to take the property is
sufficient. (People v. Davison (1995) 32 Cal.App.4th 206, 212.) Indeed, “the jury may
infer fear ‘“from the circumstances despite even superficially contrary testimony of the
victim.”’” (Morehead, at p. 775.) A “victim’s fear need not be extreme to constitute
robbery.” (Ibid.)
       c.     The trial court was not required to instruct upon theft as a necessarily
included offense
       In light of the testimony of Talamantez and Ruiz about the robberies at
Vincenzo’s, Talamantez’s testimony that the robbery “happened so fast that I just
couldn’t really comprehend it right away, but I wouldn’t say I was really afraid. I was
just kind of flustered,” did not constitute substantial evidence from which a reasonable
jury could conclude defendant committed theft, but not robbery, with respect to
Talamantez. Talamantez testified that after defendant demanded “all the money,”
Talamantez “was a little flustered,” “looked up,” saw defendant aiming a gun at
Talamantez’s chest, then took the money from the cash register and handed it to
defendant after Ruiz approached and told Talamantez to hurry. Ruiz testified he heard
defendant’s demand for money, turned toward defendant, and defendant pointed the gun
at him. Defendant’s unlawful demand, coupled with his act of aiming a gun first at
Talamantez, then at Ruiz, strongly supported an inference that Talamantez turned over
the cash due to fear. Indeed, the record suggests no other motive for him to turn over the
money, e.g., deception or unusual suggestibility. Talamantez was the manager of
Vincenzo’s and thus had an incentive to avoid giving away his employer’s money. His
testimony that he was flustered and unable to immediately comprehend the robbery
described an honest, understandable reaction that did not negate the inference he
relinquished the money due to fear caused by defendant’s unlawful demand and aiming a
gun at Ruiz and Talamantez.
       Moreover, when the court asked whether Talamantez would have relinquished the
money if he had not seen the gun, Talamantez responded, “Probably not. I didn’t find
him very threatening looking.” Defendant argues this response showed Talamantez “did


                                             50
not find the assailant threatening, and may have turned over the money even if the
assailant did not have a gun.” We do not agree. At a minimum, Talamantez’s response
supported the inference that fear caused him to relinquish the money. Arguably, the
response implies that intimidation was required to cause him to relinquish the money, and
the gun was the greatest factor in the intimidation applied to him during this robbery
because defendant’s appearance was insufficiently intimidating. Nothing in
Talamantez’s testimony—or any other evidence regarding the robberies at Vincenzo’s—
constituted substantial evidence that Talamantez simply turned over the money without
fear.
        Assuming for the sake of argument that the trial court erred by failing to instruct
sua sponte on theft as a necessarily included offense of the robbery in count 18, the error
was harmless. There is no reasonable probability the jury would have convicted
defendant only of theft as to count 18, given the nature of defendant’s conduct, the
natural inferences that Talamantez experienced fear upon seeing defendant pointing a gun
at his chest while demanding all of the money in the cash register and that he relinquished
the money because he was fearful, Ruiz’s fear, and the video and photographs of the
robbery that allowed the jury to view defendant’s conduct. In addition, according to
Orion, later that night after committing the robberies at Vincenzo’s, defendant began
“bragging about robbing people or robbing places,” and said, “‘People are scared, and
you can just walk in and do what you want.’” The jury could consider this statement as
an acknowledgement by defendant that the way in which he committed robberies
frightened “people,” including Talamantez.
6.      Amount of restitution and parole revocation fines
        a.     Proceedings in the trial court
        When sentencing defendant, the court stated, “The defendant is ordered on each
count to pay a restitution fine in the minimum amount $280 . . . .” The court continued,
“There is a parole revocation fine of $280. That is to be stayed pending successful
completion of parole.” The abstract of judgment reflects total restitution and parole
revocation fines of $2,520 each.


                                              51
       Defendant contends the trial court erred by using the $280 minimum fine amount
applicable at the time of his sentencing, rather than the $200 minimum applicable at the
time he committed his crimes. He further argues the $2,520 total for each type of fine
listed on the abstract must be corrected.
       b.     Pertinent legal principles
       Section 1202.4, subdivision (b), provides, in pertinent part: “In every case where
a person is convicted of a crime, the court shall impose a separate and additional
restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.” “The restitution fine shall be set at the discretion of
the court and commensurate with the seriousness of the offense,” but cannot be less than
the minimum amount set forth in the statute or more than $10,000. (§ 1202.4, subd.
(b)(1).) During the years 2008 through 2011, the statutory minimum was $200. (Former
§ 1202.4, subd. (b)(1).) The minimum was raised to $240 at the start of 2012 and to $280
at the start of 2013. (§ 1202.4, subd. (b)(1).)
       The statute sets forth a formula the court may use to calculate the amount of the
fine: “[T]he court may determine the amount of the fine as the product of the minimum
fine . . . multiplied by the number of years of imprisonment the defendant is ordered to
serve, multiplied by the number of felony counts of which the defendant is convicted.”
(§ 1202.4, subd. (b)(2).)
       Where the sentence imposed includes a period of parole and the court imposes a
restitution fine under section 1202.4, subdivision (b), it must also impose a parole
revocation restitution fine in an equal amount. (§ 1202.45.) The latter fine is suspended
unless the defendant’s parole is revoked.
       c.     The trial court utilized the wrong statutory minimum.
       The trial court clearly expressed its intent to impose “the minimum” restitution
fine “on each count.” The statutory minimum applicable to defendant’s crimes was $200,
not $280. Although the latter amount was within the discretionary range, the court
expressly chose “the minimum.” Accordingly, the restitution fine and matching parole



                                             52
revocation fine for each count upon which the sentence was not stayed should be reduced
to $200.
       The court also clearly expressed its intent to impose the minimum fine “on each
count,” not just once. This conforms to the formula set forth in section 1202.4,
subdivision (b)(2). Defendant was sentenced to nine unstayed terms, and the aggregate
amount of restitution and parole revocation fines included on the abstract of judgment
reflects $280 fines for each of these nine counts. The aggregate amount must be
modified to reflect the correct minimum fine of $200 per count, that is, $1,800 total for
each category of fine.14
7.     Additional day of presentence credit
       Defendant contends, and the Attorney General concedes, that defendant is entitled
to one additional day of actual presentence custody credit. Accordingly, defendant’s
credit award must be increased by one day.




       14 The Attorney General’s argument the trial court was well within its discretion to
impose a $280 fine when the maximum fine was $10,000 is not well-taken in light of the
court’s expressed intent to impose the minimum fine.


                                             53
                                      DISPOSITION
       The judgment is modified by awarding defendant one additional day of actual
presentence custody credit, that is, 1,131 days for actual credit, and a total of 1,300 days
of presentence credit. The judgment is further modified by reducing the Penal Code
section 1202.4, subdivision (b) restitution fine and the Penal Code section 1202.45 parole
revocation fine to $1,800 each. The judgment is otherwise affirmed. The trial court is
directed to forward a corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
       NOT TO BE PUBLISHED.


                                                  BENDIX, J.*
We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


                                             54
