Filed 7/18/13 P. v. Motten CA2/3
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                          SECOND APPELLATE DISTRICT

                                                       DIVISION THREE



THE PEOPLE,                                                                       B228663

          Plaintiff and Respondent,                                               (Los Angeles County
                                                                                  Super. Ct. No. TA109455)
          v.

KENYON DAKEITH MOTTEN,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Affirmed in part and reversed in part.
          Morgan H. Daly, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

                                              _________________________
       Appellant Kenyon Dakeith Motten appeals from the judgment entered following
his convictions by juries on count 1 – second degree robbery (Pen. Code, § 211), count 2
– attempted second degree robbery (Pen. Code, §§ 664, 211), two counts of criminal
threats (Pen. Code, § 422; counts 3 & 4), count 5 – dissuading a witness by force or
threats (Pen. Code, § 136.1, subd. (c)(1)), and count 6 – misdemeanor vandalism (Pen.
Code, § 594)1 with court findings appellant suffered two prior felony convictions (Pen.
Code, § 667, subd. (d)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)),
and two prior felony convictions for which he served separate prison terms (Pen. Code,
§ 667.5, subd. (b)). The court sentenced appellant to prison for 20 years. We affirm the
judgment in part and reverse it in part.
                                  FACTUAL SUMMARY
       Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence established that about 9:00 p.m. on November 16,
2009, Angelica Alvarez was putting gas in her car at a Mobil gas station at Imperial and
Vermont. Jacob Castro, her boyfriend, was in the front passenger seat and her infant
daughter was in the back seat.
       Alvarez testified that appellant, an African-American, approached her. He told
Alvarez that her car had a “hit” on it. Alvarez was standing next to the gas pump, her car
was between her and appellant, and the distance between the two was about seven feet.
The gas station’s lights were operating so Alvarez “had a good look at the defendant that
night.” Alvarez denied there was a hit on the car but appellant said there was and that he
had been sent to kill Alvarez, Castro, and the baby. Alvarez was afraid. At trial, Alvarez
identified appellant as the person who made the above statements to her.
       Appellant told Alvarez that he was from the Mafia. Appellant lifted his sleeves
and, for a short time, showed his tattoos to Alvarez. She testified he showed “us” his
tattoos. Castro was in the car but he was watching. Alvarez denied to appellant that he
had a hit on her and her family. Appellant said Alvarez better give him money. Alvarez

1
      A jury convicted appellant on count 6 but deadlocked on the remaining counts.
Following a retrial, a jury convicted him on the remaining counts.
                                             2
denied she had money but appellant said Alvarez and Castro better give appellant $20.
Appellant, who had a phone, acted as if he were making a call, then suggested he might
have been confused about the license plates of Alvarez’s car. However, appellant said he
was not leaving empty-handed and if Alvarez and Castro did not give appellant money,
appellant would kill them in front of their daughter. Alvarez entered the car.
       While Alvarez entered the car, appellant went to Castro’s side of the car.
Appellant was talking to Castro and searching the glove compartment and the side
compartment on the door. Appellant was about a foot from Castro. Alvarez was seated
in the driver’s seat, was about three-and-a-half feet from appellant, and saw his face
clearly. Appellant had a teardrop tattoo or something similar near the right corner of his
right eye. Alvarez thought appellant had a beard or something like a goatee. Appellant
was wearing a brown shirt or sweater, brown cargo shorts, and white tennis shoes. He
was about six feet two inches tall.
       Alvarez put her key in the ignition and was going to use her phone, but appellant
said she better not call the police or do anything or it would be worse for them. Alvarez
exited the car and began crying and making “a big scene.” Appellant told Alvarez to
leave and she drove away with Castro and the baby. At some point appellant took a
phone from Alvarez before she left.
       Alvarez drove to Castro’s brother’s house which was about two minutes away and,
using another phone, she called the police. Alvarez told a 911 operator what had
happened. Alvarez returned to the gas station and saw appellant. Alvarez parked nearby
but later drove away because she had been illegally parked. She returned to the
intersection about two minutes later and saw appellant outside a liquor store across the
street from the gas station. Alvarez drove past appellant, parked in the gas station, and
watched him. Appellant eventually sat on a bus stop bench.
       Police arrived, called Alvarez on her phone, and asked if the robber was sitting on
the bench. Alvarez said yes. Police arrested appellant, called Alvarez, and told her that
she had to identify him. Police told Alvarez that just because police had arrested
appellant did not mean he was the robber. Police took Alvarez and Castro across the

                                             3
street to a field showup and Alvarez identified appellant from about eight to ten feet
away. Police lights illuminated appellant and Alvarez clearly saw him.
          At trial, the prosecutor showed Alvarez a photograph of appellant and she testified
it depicted the robber. Appellant looked different in the photograph and more like the
robber. The photograph depicted the teardrop tattoo on appellant’s face. On the night of
the robbery, she “saw [appellant] closely” and, on the night of the robbery, and at trial,
Alvarez positively identified appellant as the robber.
          During cross-examination, Alvarez testified as follows. Alvarez did not remember
that appellant had headphones or sunglasses, but she remembered he was wearing a
brown shirt. The process of appellant showing “the sleeves” took perhaps two seconds;
appellant “just lifted it up right quick and that’s it.” Alvarez did not look at appellant’s
tattoos for detail. About ten minutes passed from the time Alvarez initially left the gas
station to the time she was with the police. The 911 call reflected the best information
Alvarez had at the time. During the 911 call, Alvarez did not mention the robber had arm
tattoos. Alvarez did not tell police on November 16, 2009, that appellant had a teardrop
tattoo.
          Alvarez saw appellant twice in court, was asked to identify him, and noticed his
teardrop tattoo. When Alvarez was asked about the arm tattoos at the previous hearing,
she did not recall what they were, she was unable to identify them, and she could not
make them out or distinguish what they said. The following then occurred during cross-
examination: “Q. But, of course, now the [prosecutor] has shown you these tattoos,
correct? [¶] A. Yes.” The prosecutor showed the tattoos to Alvarez during her last
court appearance. Alvarez had seen photographs of the tattoos at least twice prior to trial.
          Alvarez and Castro had talked about the November 16, 2009 incident because it
was a major event in their lives. However, Alvarez and Castro did not discuss
descriptions of the person because the two already knew how the person looked because
they had seen the person.
          During redirect examination, Alvarez testified that after police arrested appellant,
she did not tell police about the teardrop tattoo. The prosecutor asked why she did not

                                                4
tell police and Alvarez replied, “It didn’t come to my mind, I guess.” When Alvarez
identified appellant as the robber when he was sitting at the bus stop, during the field
showup, during the two prior hearings, and at trial, she identified him because she
recognized his face. At a prior hearing Alvarez had testified that she had not told police
about the teardrop tattoo on the phone or after police arrived because appellant had not
shown it to her, it was already on his face, and appellant had rolled up his sleeves and
displayed his other tattoos.
       During recross-examination, appellant played a recording of Alvarez’s 911 call.
Alvarez remembered describing the robber during the call as a light-complected Black
male who had headphones, black sunglasses, a light brown shirt, and white shoes, and she
remembered saying that that was all she remembered concerning a description.
       During further examination, Alvarez testified as follows. Alvarez did not
remember whether, when she saw appellant at the cashier area at the Mobil station,
Alvarez saw appellant wearing headphones or sunglasses. A photograph of appellant
displayed to her at trial depicted a mustache, and hair on his chin. She saw that hair on
appellant on the night of the robbery and at trial.
       When Alvarez gave a suspect description during the 911 call, she mentioned only
a shirt, not a sweater. At a prior hearing she was asked if she remembered what appellant
had been wearing. She testified at that hearing that, because the incident occurred a long
time ago, the only thing she remembered was appellant was wearing “like a khaki color,
like cargo pants,” she was not sure if appellant was wearing a brown shirt or something
similar, but he was wearing a big sweater.
       Castro testified as follows. Castro was at the gas station and sitting in the
passenger seat of the car. In his rear view mirror, he saw someone approach Alvarez
while she was pumping gas and saw the two conversing. Appellant and Alvarez talked
for perhaps five or seven minutes. Appellant rolled up his sleeves and displayed his
tattoos for perhaps a minute. At trial, the prosecutor showed Castro photographs of
tattoos on appellant’s left arm and asked if Castro could see those tattoos on the night of
the robbery. Castro replied, “I do somewhat see them but I couldn’t really see them

                                              5
because I was still in the passenger seat.” Castro was looking at those tattoos through the
rear view mirror. The prosecutor showed Castro photographs depicting tattoos on
appellant’s right arm. Castro testified he recognized those tattoos on the night of the
robbery.
       At some point appellant approached Castro, opened the car door, and asked Castro
to give appellant money or anything of value in the car. Appellant said if Castro did not,
Castro would be hurt. When appellant opened the car door, Castro just glanced at
appellant’s face because Castro was afraid. Castro testified he was able to look at
appellant’s face “[l]ike 30 seconds, . . . quick.” Appellant was about 18 inches from
Castro and was leaning into the car. Appellant searched the glove compartment and the
side of the door. Castro remembered appellant’s face and, at trial, Castro identified
appellant as the robber.
       Castro also testified as follows. There may have been teardrop tattoos on the left
side of appellant’s face but Castro did not remember. When appellant was searching
through the car, Castro did not notice tattoos on appellant’s arms because Castro was
looking at appellant’s face. After appellant took a phone out of the car, he went to the
driver’s side. Alvarez was in the car and already had the key in the ignition. Appellant
told her not to leave and threatened to kill Alvarez, Castro, and the baby if Alvarez tried
to leave. At trial, Castro identified appellant as the person who took his property and
threatened to kill Castro and Alvarez.
       Castro and Alvarez went to Castro’s brother’s house, then returned to the gas
station. This took about 10 to 12 minutes. When they returned, appellant was across the
street at a liquor store. Castro also testified appellant was in the cashier area at the gas
station and was talking to someone, two or three people were with appellant, appellant
then went to the liquor store, and later went to a bus stop. The distance from where
Castro had been parked at the gas station to the bus stop was about 54 feet. The gas
station lighting was bright and a light illuminated the bus stop.
       Appellant sat at the bus stop and Castro recognized him as the robber before police
arrived. Appellant was wearing a black shirt and cargo shorts. During the field showup,

                                               6
police illuminated appellant and Castro identified him from about 15 to 18 feet away. It
was somewhat dark because stores were closed but streetlights were operating. During
the showup, Castro saw the tattoo on appellant’s face.
       During cross-examination, Castro testified that when appellant was showing his
tattoos to Alvarez, Castro was watching what was happening. Castro recognized
appellant’s tattoos because Castro could “see them from afar.” Appellant searched the
car about five minutes.
       When Alvarez was talking with 911 personnel, Castro did not mention that the
robber had teardrop tattoos. Castro did not tell police that the robber had teardrop tattoos,
but Castro was not the person who had talked with the police. The incident of November
16, 2009, was a major event in his life, and he and Alvarez had discussed it many times.
Castro was concerned about, and Castro and Alvarez discussed, the description of the
robber. Castro testified he and Alvarez were “trying to see if it was the same person.
And it was.” The following then occurred during cross-examination: “Q. . . . So some
of this that you talked about the fact that the tear drop tattoo isn’t in your description, you
got information from other people aside from yourself, right? [¶] A. Yeah, it was my
girlfriend.” (Sic.)
       At a prior hearing, photographs were shown to Castro and he testified he did not
recognize any of the tattoos, he knew appellant had many tattoos, but Castro could not
see them from where he had been sitting. At the last hearing, Castro did not testify that
the robber had teardrop tattoos. Castro had seen appellant in court previously and Castro
had noticed the teardrop tattoos. Castro testified that when the prosecutor prepared
Castro for trial, the prosecutor showed Castro photographs of appellant and the teardrop
tattoos.
       During redirect examination, the prosecutor displayed to Castro a photograph of
appellant, and Castro testified it much more accurately depicted what appellant looked
like on the night of the robbery than how appellant appeared at trial. The difference was
that, at trial, appellant had cut his hair, he was wearing glasses, and he was more
presentable. Castro denied remembering whether the robber had facial hair.

                                               7
       Los Angeles Police Officer Scott Teubert testified concerning the incident that he
arrested appellant. Appellant was wearing a black shirt, tan shorts, and white shoes, and
had a teardrop tattoo on his face. The tattoo was visible at trial. Teubert searched
appellant but found nothing on him. Appellant presented no defense evidence.
       We will present additional facts below as appropriate.
                                           ISSUES
       Appellant claims (1) the retrial court violated his constitutional rights to counsel
by precluding his trial counsel during closing argument from commenting on a famous
case pertaining to the fallibility of eyewitness identification, (2) the retrial court abused
its discretion by receiving evidence that appellant said “I’m not going back” and kicked a
police car window, (3) cumulative prejudicial error occurred, and (4) a Penal Code
section 667.5, subdivision (b) enhancement must be stricken. Respondent claims the
judgment, and the abstract of judgment, must be modified to reflect certain fees and
assessments.
       Because we will partially reverse the judgment based on our analysis and
disposition of appellant’s second claim, there is no need to discuss any remaining claims
of the parties.
                                       DISCUSSION
The Trial Court Erred by Admitting Into Evidence Appellant’s Statement in the Police
Car.
       1. Pertinent Facts.
       Prior to the retrial, the prosecutor proffered testimony from Teubert that “during
the course of the attempt to kick out the back window the defendant was saying, ‘I’m not
going back. I’m not going back.’ ” The prosecutor argued the testimony was relevant to
prove appellant’s consciousness of guilt. Appellant objected the proffered testimony was
irrelevant and prejudicial because at the time of this incident in the police car, appellant
already was in custody, police were bringing him back, there were multiple possible
explanations for what had occurred, and the vandalism charge already had been resolved.


                                               8
       The retrial court concluded the proffered testimony was relevant and not unduly
prejudicial. As to the last issue, the retrial court commented the proffered testimony
“kind of shows the defendant’s conduct in a continuance [sic] spectrum and he makes
some statements that arguably could be consciousness of guilt.” The court indicated the
fact the vandalism charge had been resolved did not make the proffered testimony less
relevant to the remaining charges.
       During the retrial, Teubert testified as follows. Teubert arrested appellant,
handcuffing his hands behind his back. Teubert put appellant in the back of the patrol car
and transported him to the police station, and appellant was cooperative en route to the
station. However, upon arrival, appellant “stated he’s not going back and began kicking
out the rear window of the police vehicle.” When Teubert took appellant out of the patrol
car, appellant’s hands were handcuffed but they were in front of appellant.
       2. Analysis.
       Appellant claims the trial court abused its discretion by receiving evidence that
appellant said “I ain’t going back” and that appellant “started kicking the window of the
patrol car after arriving at the police station.” He argues appellant’s statement informed
the jury that he had a criminal history; therefore, the trial court should have excluded the
evidence under Evidence Code section 352. Respondent argues appellant waived the
issue by failing to raise it below. We address appellant’s claim to forestall a claim of
ineffective assistance of counsel (cf. People v. Turner (1990) 50 Cal.3d 668, 708). For
the reasons discussed below, we conclude the trial court erred by failing to exclude under
Evidence Code section 352 appellant’s statement that he was “not going back.”
       In People v. Cabrellis (1967) 251 Cal.App.2d 681, the defendant, during a police
interrogation, asked police “ ‘Why should I tell you anything that would send me
back?’ ” (Id. at p. 684.) Although Cabrellis did not expressly refer to Evidence Code
section 352 (the section was enacted in the same year in which Cabrellis was decided),
Cabrellis observed that other crimes evidence as propensity evidence was inadmissible
because the probative value of the evidence was outweighed by its prejudicial effect. (Id.
at 685.) Cabrellis stated, “The [question by the defendant] immediately and blatantly

                                              9
signified a criminal conviction of the past for which defendant might be ‘sent back.’
Even in the eyes of the most unsophisticated juror, the statement marked him as a former
prisoner who might be sent back to prison or jail.” (Id. at p. 686.)
       Cabrellis concluded the defendant’s question might have been admissible as
evidence of the defendant’s fear of a future conviction in the current case and thus as
evidence of consciousness of guilt in that case, except for the fact the prosecutor
deliberately withheld evidence of the context of the question that made it irrelevant,
prejudicial as a revelation of the defendant’s criminal past, and inadmissible. (Cabrellis,
supra, 251 Cal.App.2d at pp. 686-688.) Cabrellis concluded the prosecutor thus
“smuggled in illicit evidence of defendant’s criminal past and criminal character.” (Id. at
p. 687.)
       In the present case, appellant did not say he was “not going to jail,” “not going to
prison,” or “not going to be incarcerated.” He said he was “not going back.” (Italics
added.) Appellant made this statement to a law enforcement officer who had custody of
appellant and had transported him to the police station as part of criminal proceedings
that could lead to appellant’s convictions for the crimes that occurred at the gas station.
       We believe appellant’s statement was other crimes evidence because it reasonably
implied prior incarceration and appellant’s unwillingness to be incarcerated again. The
statement implied appellant’s prior incarceration either as (1) a prisoner who had suffered
a felony conviction(s) (and who perhaps had been released on parole) or (2) a jail inmate
who had suffered a misdemeanor conviction(s) or who was awaiting disposition of a
criminal (felony or misdemeanor) charge(s). These facts are not altered by the fact
appellant’s statement implied he was concerned about being incarcerated for the present
offenses (counts 1 - 5) as well. Appellant’s statement he was “not going back” was
inadmissible other crimes evidence. (Cf. Cabrellis, supra, 251 Cal.App.2d at p. 687.)
       Moreover, on this record, we believe the other crimes evidence was prejudicial. In
particular, as discussed below, Alvarez’s identification testimony was often
contradictory, often conflicted with other People’s evidence, and called into question
whether her identification testimony was based on her independent memory of the

                                             10
robbery as opposed to the cumulative effect of incremental exposure to appellant after the
robbery. In the present case, Alvarez testified at trial that appellant had a teardrop tattoo
near the corner of his right eye, she thought he had a beard or something like a goatee,
and he had tattoos on his arms. She also testified appellant was wearing a brown shirt or
sweater, brown cargo shorts, and white tennis shoes.
       However, she also testified the 911 call reflected the best information she had at
that time. After the 911 call was played in court, Alvarez testified she remembered
describing the robber during that call as a light-complected Black male who had
headphones, black sunglasses, a light brown shirt, and white shoes, and she remembered
saying that that was all she remembered concerning a description. She did not therefore
testify that, during that call, she mentioned a teardrop tattoo, a beard or goatee, tattoos on
the robber’s arms, or the robber wearing a sweater.
       Moreover, Alvarez did not tell police on November 16, 2009, that appellant had a
teardrop tattoo. When asked why she did not tell police about the teardrop tattoo after
appellant was arrested, she replied, “It didn’t come to my mind, I guess.” Further, at a
prior hearing, she testified that she had not told police about the teardrop tattoo on the
phone or after police arrived because appellant had not shown it to her, it was already on
his face, and appellant had rolled up his sleeves and displayed his other tattoos. It is not
clear how that testimony adequately explained why she did not tell police about the
teardrop tattoo at least when she was on phone.
       On the other hand, Alvarez saw appellant in court twice prior to trial and saw his
teardrop tattoo. Alvarez had seen photographs of appellant’s tattoos at least twice prior
to trial. The prosecutor showed the tattoos to Alvarez during the last court appearance
and at trial. Yet Alvarez’s trial testimony suggested appellant showed his arm tattoos to
her for perhaps two seconds. Thus, Alvarez’s identification of appellant by his teardrop
tattoo and arm tattoos may well have been the product of incremental exposure to same
after the robbery.
       As indicated, Alvarez testified at trial that appellant was wearing a brown shirt.
During the 911 call (i.e., closer to the time of the robbery), she said it was a light brown

                                              11
shirt. However, Teubert testified appellant was wearing a black shirt. Moreover, at a
prior hearing, Alvarez testified she was not sure if appellant was wearing a brown shirt or
something similar, but he was wearing a big sweater. Yet Alvarez did not refer to a
sweater during the 911 call.
       During the 911 call, Alvarez said the robber was wearing headphones and black
sunglasses. However, at trial, she denied remembering whether appellant was wearing
headphones or sunglasses when she saw him at the cashier at the Mobil station. Teubert
arrested and searched appellant but found nothing on him, i.e., appellant apparently did
not possess headphones or sunglasses at that time.
       Similarly, Castro’s identification testimony was often conflicting and called into
question whether his identification testimony was based on his independent memory of
the robbery as opposed to the cumulative effect of incremental exposure to appellant after
the robbery. Castro testified he was looking at appellant’s tattoos through the rear view
mirror. Yet when the robber was searching the car, Castro did not notice tattoos on the
robber’s arms. At a prior hearing, photographs were shown to Castro and he testified he
did not recognize any of the tattoos, he knew appellant had many tattoos, but Castro
could not see them from where he had been sitting.
       Castro testified that when the robber opened the car door on Castro’s side of the
car, Castro just glanced at the robber’s face. Castro denied remembering if there were
teardrops on the left side of the robber’s face. When Alvarez was talking with 911
personnel, Castro did not mention the robber had teardrop tattoos. Castro saw the tattoo
on appellant’s face during the field show-up. Castro did not tell police that the robber
had teardrop tattoos. Castro did not testify at the last hearing that the robber had teardrop
tattoos.
       On the other hand, Castro had seen appellant in court before and had noticed the
teardrop tattoos. When the prosecutor prepared Castro for trial, the prosecutor showed
Castro photographs of appellant and the teardrop tattoos. A portion of Castro’s testimony
suggested he had obtained information about any teardrop tattoo from Alvarez.


                                             12
       Other conflicts and testimony call into question the identifications of Alvarez and
Castro. Alvarez at one point testified to the effect the robber showed his arm tattoos
perhaps two seconds. Castro testified appellant rolled up his sleeves and displayed his
tattoos for perhaps a minute. Alvarez and Castro testified to the effect the robbery was a
major event. However, Alvarez denied, while Castro confirmed, that the two discussed
descriptions of the robber. Police found appellant sitting on a bus bench across the street
from the robbery site. Teubert searched appellant but found nothing on him.
       Cabrellis reviewed the evidentiary error in that case under the standard of
prejudice enunciated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]
because once the defendant’s question was, as a deliberate prosecutorial tactic, admitted
into evidence, the defendant was forced to testify to explain its innocuous import. This
deprived the defendant in Cabrellis of his constitutional rights not to testify and not to be
cross-examined. (Cabrellis, supra, 251 Cal.App.2d at pp. 686-688.) Those facts are not
present in this case.
       We test the issue of prejudice in this case under the standard enunciated in People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson) for state law error, i.e., whether it is
reasonably probable that a result more favorable to appellant would have occurred absent
the error. We note “ ‘probability’ in this context does not mean more likely than not, but
merely a reasonable chance, more than an abstract possibility.” [Citation.]’ [Citation.]”
(Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.)
       There is no dispute as to the sufficiency of the identification evidence but, in light
of our above discussion, we believe this is a close case on the issue of whether the
identifications of Alvarez and Castro were based on their respective memories of what
happened during the robbery, or whether those identifications were based upon a factor(s)
other than those memories. The inadmissible other crimes evidence very well may have
tipped the jury’s scale in favor of conviction on counts 1 through 5. Moreover, we note
the trial court gave no limiting instruction concerning the other crimes evidence, i.e., the
court did not instruct the jury that they could not consider appellant’s statement as
propensity evidence or evidence of his bad character.

                                             13
       We believe there is a reasonable chance a result more favorable to appellant would
have occurred as to counts 1 through 5 if the other crimes evidence had not been
erroneously admitted into evidence. (Watson, supra, 46 Cal.2d at p. 836.) Accordingly,
we will reverse the judgment of conviction on counts 1 through 5, permitting a retrial on
those counts, but we will otherwise affirm the judgment.
       We express no opinion as to whether a retrial should or should not occur as to
counts 1 through 5. Nor do we express any opinion as to whether appellant’s statement
that he was “not going back” could be sanitized. Nor do we express any opinion as to the
admissibility of evidence that appellant began kicking out the rear window of the police
vehicle (counts 1 – 5).




                                            14
                                     DISPOSITION
       The judgment is affirmed, except the judgment of conviction as to count 1 –
second degree robbery, count 2 – attempted second degree robbery, two counts of
criminal threats (counts 3 & 4), and count 5 – dissuading a witness by force or threats is
reversed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KITCHING, J.

We concur:




                     KLEIN, P. J.




                     CROSKEY, J.




                                            15
