Filed 6/9/15 P. v. Cousin CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061443

v.                                                                       (Super.Ct.No. RIF1401312)

PAUL EUGENE COUSIN,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,

Judge. Affirmed with modification.

         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H.

Chow, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Paul Eugene Cousin appeals from a judgment of

conviction for robbery. (Pen. Code, § 211.)1 We affirm the judgment, as modified.

                                  STATEMENT OF FACTS

       The victim, Cleveland “Roosevelt” Rush, called police stating that “I want

to report a robbery. [¶] . . . [¶] Um, I was coming out of the motel and this guy jumped

out and . . . [¶] . . . [¶] . . . [t]ook like a sharp nail object to my neck and took $20 from

me.” Rush gave a general description of the robber but did not indicate that he could

identify him. He said he was then at a Winchell’s. At trial, however, Rush testified that

he had not been robbed and that he had called 911 because he had lent money to

defendant that evening and wanted it back. Rush further testified that after giving

defendant the money, he himself walked to a gas station convenience store where he

intended to meet someone and buy drugs. At this point Rush realized he no longer had

enough money. He first called his dealer to delay the transaction, and then called 911.

       Perhaps realizing that his story was illogical, Rush further explained that he had

been high on drugs at the time and not thinking sensibly when he contrived the supposed

plan to get the police to take the $20 back from defendant. He explained his failure to tell

the police dispatcher that defendant was the robber was also the result of his impaired

state. The same justification was given for his reported location of the robbery, a motel

some distance from anywhere he testified he was during the evening in question, as well

as what he described as his false report of his location.

       1   All further references are to the Penal Code unless otherwise specified.


                                                2
       Rush admitted that he had spoken with police that evening and confirmed that the

robbery happened near the Comfort Inn motel, as he had said in the 911 call. He also

asserted that he had not identified the robber as defendant when he spoke to the

responding officers. Rush further testified that he had told police that the robber had

threatened him with a nail to his neck because he was “high . . . I was making it up as I

went along.” He then apologized to defendant from the witness stand.

       Finally, Rush admitted that he was in custody on a probation violation for petty

theft, and that being a “snitch” could lead to unpleasant repercussions on the street.

       The officer responding to the 911 call eventually located Rush, although not at the

Winchell’s establishment. Rush told him that a person he identified as defendant by

name had come up behind him and asked what he had in his hand. Defendant then thrust

at him with a large nail or spike and demanded money. Rush told the officer that he

complied.

       Shortly thereafter, defendant was detained by a second officer based on the name

and description given by Rush. Rush was driven to that location, where he identified

defendant by saying, “That’s him right there.”

       The first officer observed no indication that Rush was under the influence of a

narcotic or controlled substance.




                                             3
       After being detained by the second officer, defendant spontaneously told this

officer, “I ain’t robbed nobody.” When asked by the officer why he mentioned robbery,

defendant stated, “It ain’t that hard to figure out.” He then shouted out to a female that

“Roosevelt’s trying to say that I robbed him.” The officer had not identified the victim

(Rush) by name. After being searched, defendant told the officer “you didn’t even find

no money on me,” although the officer had not identified the property taken.

       When questioned by other officers, defendant claimed that he was the victim and

that Rush had pulled a knife on him when he, defendant, refused to buy drugs from Rush.

He never mentioned receiving a loan from Rush.

                                       DISCUSSION

                                             A.

       Defendant first relies upon the corpus delicti rule to argue that there was

insufficient evidence that a robbery had been committed. That rule requires that the

charged crime be established by evidence other than the accused’s extrajudicial

statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1180 [holding that “Proposition

8” did not abrogate the corpus delicti rule in this respect].) The prosecution’s obligation

is merely to introduce sufficient other evidence to constitute a prima facie case that the

charged crime was committed. (People v. Martinez (1994) 26 Cal.App.4th 1098, 1104.)

The defendant’s statements then become fully admissible to strengthen the prosecution’s

case. (People v. Valencia (2008) 43 Cal.4th 268, 297; People v. Alvarez, supra, 27

Cal.4th at p. 1181.)



                                              4
       Viewed under these rules, it appears obvious that the out of court statements of

Rush were sufficient to establish that a robbery had occurred and, in connection with

defendant’s own statements, made up constitutionally substantial evidence in support of

the verdict. (See Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Rountree

(2013) 56 Cal.4th 823, 852-853.) But defendant raises two arguments against this

conclusion.

       First, he points out that at trial, Rush recanted his earlier version of what happened

and testified that it was untrue. However, his statements were admissible as substantive

evidence as prior statements inconsistent with his trial testimony. (Evid. Code, § 12352;

People v. Guerra (2006) 37 Cal.4th 1067, 1144.) As the Law Revision Commission

Comment to the statute points out, “[i]n many cases, the inconsistent statement is more

likely to be true than the testimony of the witness at the trial because it was made nearer

in time to the matter to which it relates and is less likely to be influenced by the

controversy that gave rise to the litigation.” The jury was fully entitled to so conclude in

this case.




       2  “Evidence of a statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony at the hearing and is
offered in compliance with Section 770.” The latter relates to the opportunity for the
parties to examine the declarant with respect to the prior statement.


                                              5
       Second, defendant notes that the jury found not true the allegation that defendant

personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) He therefore

argues that the jury must have completely disregarded Rush’s testimony, and convicted

him solely upon his own statements.

       This conclusion does not follow. It is perfectly reasonable to suppose that the jury

was not persuaded by the sketchy evidence about the nail allegedly used by defendant

that it was in fact a “deadly or dangerous” weapon.

                                            B.

       Defendant also argues that he was improperly sentenced on one of six prior prison

term enhancements because he had not completed that term at the time of the current

offense. (See § 667.5; People v. Tenner (1993) 6 Cal.4th 559, 563.) The People concede

both that point and that because defendant was still subject to a term of mandatory

supervision following his most recent qualifying conviction (see § 667.5, subd. (b), as

amended), he had not “completed” that term.

        Accordingly, the sixth prior prison term finding should be stricken and one year

subtracted from defendant’s sentence.




                                             6
                                     DISPOSITION

       The judgment of conviction is affirmed; the sentence is modified to a total of eight

years in prison. The trial court is directed to issue an amended abstract of judgment in

accordance with this opinion above and to forward a certified copy of the amended

abstract of judgment to the Department of Corrections and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               HOLLENHORST
                                                                                           J.
We concur:



RAMIREZ
                       P. J.



McKINSTER
                          J.




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