Filed 12/8/15 P. v. Nicholas CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B260818

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. NA062843)
                   v.

ATHMANI NICHOLAS,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
James B. Pierce, Judge. Affirmed.

         Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.



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       A jury convicted defendant and appellant Athmani Nicholas of three counts of
second degree robbery. Defendant appeals, contending the trial court abused its
discretion in admitting hearsay statements as prior inconsistent statements, and that the
record lacks substantial evidence supporting his guilt.
       We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Around 11:30 a.m. on July 11, 2004, Janet Covarrubias was at work at a Del Taco
restaurant in Signal Hill. Two cooks, Lucia and Lupe, as well as the manager, Imelda
Delarosa, were also on duty. All four employees were in the area behind the front
counter for employees only. At that time, there were only two customers in the
restaurant, Doug Sambrano and Diana Medrano, eating together at one of the tables.
       Mr. Sambrano noticed, through a window facing the parking lot, that several
young African-American males were walking quickly and purposefully toward the
restaurant. It seemed unusual and he was a little concerned.
       Ms. Covarrubias was near the front counter when three African-American males in
their 20’s came in together through the front doors of the restaurant. She asked them if
they wanted to place an order. They told her they were not yet ready. When
Ms. Covarrubias asked a few moments later if they were ready to order, one of the three
males said “let’s do this.” Two of them jumped over the counter; one was taller and
darker skinned, and the other was slimmer in build and lighter skinned. Ms. Covarrubias
noticed the taller one had a gun. Lucia also saw them jump over the counter. She
thought two of them were armed. Lupe started toward the back of the kitchen area and
the slimmer male ran back to stop her. He ordered Lucia and Lupe to the ground. The
taller one told Ms. Delarosa to take him to the safe. They went to the safe, and the taller
one told Ms. Delarosa she only had 10 seconds. She opened the safe and he grabbed the
money, less than $100.
       The third African-American male did not jump over the counter but went over to
Mr. Sambrano, who was still seated at a table. Ms. Medrano had gone to the bathroom



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just before the three males entered. The third male ordered Mr. Sambrano to the ground,
put a gun to the back of his head, went through his pockets and took his wallet.
       A bell went off indicating that a car had pulled into the drive-through. The
slimmer male tried to yank the headset off of Ms. Covarrubias’s head, presumably to
prevent her from talking to the driver of the car. Ms. Covarrubias tried to pull the headset
off but it got tangled, and she and the slimmer male continued to struggle with it. The
taller male said “get to the ground, bitch” and hit her on the back of the head with a gun.
Ms. Covarrubias fell to the ground, near the counter. The taller male and the slimmer
male then jumped back over the counter, stepping on Ms. Covarrubias’s back in the
process. All three males then left quickly through the front doors.
       From inside the bathroom, Ms. Medrano heard some sort of “commotion.” As she
came out of the bathroom, she paused near the door. She saw, in profile, an African-
American male leaving out the front doors. She noticed he was holding a gun. The
police arrived about two minutes after the three males left.
       Detective Steven Owens of the Signal Hill Police Department assisted in the
investigation of the robbery. Detective Owens explained that by September 2014, they
had identified three individuals as suspects: defendant, an individual named Antoine
Marks, and an individual named Kevin Barnes. Detective Owens prepared three different
six-pack photographic lineups, each containing one photograph of one of the suspects.
Defendant’s photograph was number 3 in “lineup A.” Mr. Marks’s photograph was
number 4 in “lineup B” and Mr. Barnes’s photograph was placed in “lineup C.”
       Ms. Covarrubias identified defendant and Mr. Marks as the African-American
males who jumped over the counter. She had gotten a good look at them and was able to
pick them out “right away” after being shown the pictures. She was unable to identify
the third male who had ordered Mr. Sambrano to the ground. Detective Owens said that
Ms. Covarrubias looked at lineup A and within a “few seconds” pointed to defendant’s
photograph as one of the robbers. She added that she thought defendant might have been
the one who went after Lupe when she headed to the back of the kitchen. Ms. Medrano
also identified defendant when she was shown the six-pack photographic lineups. She


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said defendant was the individual she saw leaving the restaurant. Lucia, Ms. Delarosa,
and Mr. Sambrano were unable to positively identify defendant from the photographic
lineups.
       Defendant absconded after the robbery and was not arrested until about 10 years
later. He was charged by information with three counts of second degree robbery (Pen.
Code, § 211). Count 1 related to Ms. Delarosa, count 2 to Ms. Covarrubias, and count 3
to Mr. Sambrano. It was specially alleged a principal was armed with a firearm in the
commission of each offense. (§ 12022, subd. (a)(1).) Defendant pled not guilty and
denied the special allegation.
       The case proceeded to jury trial in December 2014. Before opening statements,
the court discussed various matters with counsel outside the presence of the jury. The
prosecutor raised the fact she intended to call Mr. Marks to testify and that he was
presently serving a sentence for the robberies in this case. The court indicated the
relevant jury instruction would be provided regarding the testimony of an in-custody
witness. The court also ordered counsel to make no references to the sentence Mr. Marks
received, and was presently serving, for the robberies. The prosecutor then raised the
prospect of using the prior statements of Mr. Marks, and the testimony of Detective
Donald Collier, in the event Mr. Marks testified inconsistently. The court ruled that any
such prior statements would not be admissible unless Mr. Marks gave inconsistent
testimony in court. The court asked the prosecutor if she had spoken to Mr. Marks and
whether she anticipated he would deviate from his prior statements. She said she had not
yet spoken to him, but that she was expecting him to testify inconsistently. The court
reiterated that no prior statements would come in unless Mr. Marks testified
inconsistently. The court admonished counsel that before using any recordings of prior
statements, the prior statements would have to be sanitized for any gang references.
       The defense raised no argument or objection to the court’s rulings regarding the
testimony of Mr. Marks. Defense counsel did inquire about whether the prosecution
planned to elicit testimony that defendant absconded from the area after the robbery. The
prosecutor stated she was not planning on doing so, or making any reference to the fact


                                             4
that defendant was only recently detained in South Carolina. The court ordered the
prosecutor to instruct her witnesses not to go into those issues.
       Testimony began with the employees and customers at the Del Taco on July 11,
2004. In addition to attesting to the facts of the incident, both Ms. Covarrubias and
Ms. Medrano attested to their positive identifications of defendant in the photographic
lineups they were shown by detectives in September 2004. Ms. Covarrubias could not
recognize defendant in court, 10 years later. Ms. Medrano could not recall whether she
told the detectives back in September 2004 that the man she saw leaving the restaurant,
whom she identified as defendant, was holding a gun. Ms. Delarosa was also unable to
identify defendant in court.
       Mr. Marks was called by the prosecution. Before the start of questioning, the
court instructed the jury it was required to judge Mr. Marks’s credibility like any other
witness and not use his custody status for or against him.
       Mr. Marks testified he had known defendant since they were in middle school.
They lived next to each other on the same street in Long Beach. Mr. Marks identified
defendant in court. He also conceded he committed the robbery at the Del Taco
restaurant in Signal Hill in July 2004. But when the prosecutor asked specific questions
about the robbery, Mr. Marks answered each question with “[d]on’t recall.”
       After defendant answered eleven questions about the incident with only “[d]on’t
recall,” defense counsel objected to the entire line of questioning as leading. The court
overruled the defense objection, explaining it was going to allow the prosecution to treat
Mr. Marks as a hostile witness. Mr. Marks continued to answer all questions by the
prosecutor about the incident with “[d]on’t recall.”
       When asked if he remembered being interviewed by Detective Kenneth Bragole,
shortly after the robbery, he said he recalled speaking with him earlier that day before
taking the stand to testify, but not after the 2004 incident. Mr. Marks responded “nope”
when asked if he was concerned about being labeled a snitch if he testified about the
incident. When shown a photograph of defendant, Mr. Marks said “it favors him.”



                                              5
Mr. Marks otherwise did not answer any questions about the 2004 robbery, but simply
repeated the answer “[d]on’t recall.”
          The prosecutor asked to play the video of Mr. Marks’s September 2004 interview.
The court overruled defendant’s objections that the recorded interview was hearsay and
improper impeachment, and allowed the video to be played for the jury. Mr. Marks
confirmed that he was depicted in the video, but continued to claim he did not recognize
Detective Bragole from the interview, only from speaking to him earlier that morning.
The defense did not cross-examine Mr. Marks. Mr. Marks was ordered held in local
custody in case further testimony became necessary.
          Detective Bragole of the Signal Hill Police Department testified that he
interviewed Mr. Marks in September 2004 as one of the suspects in the July 2004 robbery
and was the officer in the video played for the jury. On cross-examination, Detective
Bragole conceded there were no fingerprints or physical evidence from the scene that
were linked to defendant.
          In the videotape played for the jury, Mr. Marks said that on the morning of
July 11, 2004, “John” and Mr. Barnes came to his house and picked him up. They then
drove over to pick up defendant. Defendant had a handgun, and John gave Mr. Marks a
“plastic” gun to use. He said it was John’s idea to rob the Del Taco. After they drove to
the Del Taco in Signal Hill, Mr. Marks, defendant and Mr. Barnes got out to go inside.
John stayed in the car. Mr. Marks said they went in, jumped over the counter, and
ordered one of the employees to give them the money in the safe. One of the female
employees put the money in a paper bag and gave it to them. He denied hurting anyone.
Mr. Marks said Mr. Barnes took a wallet from one of the customers. The whole thing
happened very quickly and then they left. They drove to a gas station, an Automated
Teller Machine (ATM) and a 7-Eleven store and used some of the cards from the stolen
wallet.
          The prosecution called Detective Collier of the Long Beach Police Department.
He said he initially interviewed Mr. Marks in September 2004 about the Del Taco
robbery. Defendant again raised an objection that any testimony about a prior statement


                                               6
was improper hearsay. The court overruled the objection, explaining the testimony
would be allowed as a prior inconsistent statement of Mr. Marks.
       Detective Collier said that when he interviewed Mr. Marks, he admitted to
participating in the July 11, 2004 robbery. He told Detective Collier that on the morning
of the robbery, “John Clarke” and “Kevin Barnes” picked him up. They then drove over
to pick up defendant. They went to the Del Taco in Signal Hill and drove around it a
couple of times, before parking “away” from it a bit. Mr. Marks, Mr. Barnes and
defendant went inside the Del Taco. Mr. Marks said he was carrying a “machine-gun”
type of gun and defendant had a handgun. They went inside the restaurant and demanded
cash which was given to them in a paper bag. Mr. Barnes took a wallet from a customer.
The group then left and drove to a gas station, an ATM and a 7-Eleven store. Detective
Collier said he shared the information he obtained with Detective Bragole, who then used
that information to conduct his interview with Mr. Marks about the incident.
       Defendant was found guilty as charged. The court sentenced defendant to
15 years in state prison.
       This appeal followed.
                                      DISCUSSION
1.     Prior Inconsistent Statements
       Defendant contends the court erred in admitting the September 2004 videotaped
interview of Mr. Marks by Detective Bragole, as well as the testimony of Detective
Collier regarding Mr. Marks’s September 2004 in-custody statement to him. Defendant
argues neither statement qualified under the prior inconsistent statement exception to the
hearsay rule, because Mr. Marks’s trial testimony was not inconsistent. Defendant
contends Mr. Marks’s trial testimony only reflected that he could not recall the specifics
of the robbery which was reasonable given that the trial took place 10 years after the
robbery. “We review the trial court’s rulings on the admission of evidence for abuse of
discretion.” (People v. Cowan (2010) 50 Cal.4th 401, 462 (Cowan).) We conclude the
court did not abuse its discretion.



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       “A statement by a witness that is inconsistent with his or her trial testimony is
admissible to establish the truth of the matter asserted in the statement under the

conditions set forth in Evidence Code sections 1235 and 770.[1] The ‘fundamental
requirement’ of section 1235 is that the statement in fact be inconsistent with the
witness’s trial testimony. [Citation.] Normally, the testimony of a witness that he or she
does not remember an event is not inconsistent with that witness’s prior statement
describing the event. [Citation.] However, courts do not apply this rule mechanically.
‘Inconsistency in effect, rather than contradiction in express terms, is the test for
admitting a witness’ prior statement [citation], and the same principle governs the case of
the forgetful witness.’ [Citation.] When a witness’s claim of lack of memory amounts to
deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable
basis in the record for concluding that the witness’s ‘I don’t remember’ statements are
evasive and untruthful, admission of his or her prior statements is proper.” (People v.
Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
       The question of evasiveness ordinarily arises when, as here, a witness claims a
lack of memory about the subject of the questioning. (Cowan, supra, 50 Cal.4th at p.
463.) The trial court is in the best position to assess the credibility of a witness’s claimed
lack of memory because it can observe the witness’s demeanor. (See, e.g., People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 78 [rejecting defense argument it was error to




[1 ]    “Evidence Code section 1235 provides . . . : ‘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.’
        “Evidence Code section 770 provides . . . : ‘Unless the interests of justice
otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent
with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The
witness was so examined while testifying as to give him an opportunity to explain or to
deny the statement; or [¶] (b) The witness has not been excused from giving further
testimony in the action.’ ”



                                              8
admit the prior statement of an accomplice who claimed at trial not to recall the incident
or even her own testimony from her trial at which she was convicted as an accessory].)
       Here, Mr. Marks answered the prosecutor’s first few questions, confirming he had
known defendant since middle school, they had lived near each other on the same street,
and identified defendant in court. Mr. Marks also conceded he had committed the
robbery at the Del Taco in July 2004. However, his testimony abruptly changed as soon
as the prosecutor asked her first question regarding the specifics of the robbery. The first
question she asked after Mr. Marks confirmed that he had committed the robbery
10 years earlier, was “[w]hat time of day was that committed?” Mr. Marks responded
“[d]on’t recall.”
       Thereafter, no matter the question, if it pertained to the robbery, he asserted
nothing but “[d]on’t recall.” A reasonable implication from his identical responses,
delivered in an apparently staccato fashion, is that he was being deliberately evasive. The
record plainly supports the trial court’s ruling allowing the prosecutor to treat Mr. Marks
as a hostile witness in a further attempt to elicit his testimony with leading questions.
Mr. Marks’s evasive testimony continued, and only then did the court allow the
prosecutor to introduce his prior videotaped interview and the testimony of Detective
Collier about his prior inconsistent statements.
       Defendant’s argument the record does not support a finding of deliberate evasion,
because it was reasonable for Mr. Marks to not recall the specifics of the robbery ten
years later, is not persuasive. While some hesitation or inability to recall the exact time
of day or some detail of the robbery may have been reasonable, Mr. Marks did not so
testify. Rather, without any apparent hesitation, he simply responded “[d]on’t recall” to
all questions about the robbery. Mr. Marks’s claimed inability to recall whether
defendant, his childhood friend, participated with him in the robbery was implausible,
and the trial court was in the best position to judge Mr. Marks’s demeanor while so
testifying.
       We conclude the record contains ample evidence supporting the court’s
determination that Mr. Marks’s professed lack of recall amounted to deliberate evasion,


                                              9
and its admission of his prior inconsistent statements as impeachment. (People v. Ervin
(2000) 22 Cal.4th 48, 84-85 [affirming court’s admission of witness’s prior statement as
impeachment and court’s implied finding that the witness’s claimed memory loss was
deliberately evasive where she said she could not recall any of her preliminary hearing
testimony, any of the events surrounding the offenses, or even identify the defendant or
his accomplice despite the fact she acknowledged him as the father of her child].)
2.     Substantial Evidence
       Defendant contends there is no substantial evidence supporting his conviction
because there was insufficient evidence of identity. We are not persuaded.
       “ ‘To determine whether sufficient evidence supports a jury verdict, a reviewing
court reviews the entire record in the light most favorable to the judgment to determine
whether it discloses evidence that is reasonable, credible, and of solid value such that a
reasonable jury could find the defendant guilty beyond a reasonable doubt.’ [Citation.]”
(People v. Johnson (2015) 60 Cal.4th 966, 988.)
       The record contains substantial evidence defendant was one of the men who
robbed the Del Taco in July 2004. His accomplice, Mr. Marks, confirmed, through
two prior statements to police, that defendant participated in the robbery along with
Mr. Barnes, and Mr. Clarke who was the driver of the getaway vehicle. One of the
victims, Ms. Covarrubias, confirmed that in September 2004, she positively identified
defendant as one of the three men who robbed the restaurant, as did one of the witnesses,
Ms. Medrano. The fact that neither of them recognized defendant, 10 years later at the
time of trial does not render insubstantial their identifications made near the time of the
robbery. The jury was in the best position to determine the weight and credibility of such
evidence.
       Defendant contends Mr. Marks’s prior statements fail to directly and credibly
implicate him as one of the robbers, suggesting that Detective Bragole was the one who
asserted that defendant went inside the restaurant. Defendant does not fairly characterize
Mr. Marks’s prior statements. Mr. Marks, and not Detective Bragole, was the first person
to mention defendant in the videotaped interview. Mr. Marks told Detective Bragole that


                                             10
Mr. Clarke, Mr. Barnes and he picked up defendant, who had a handgun. Detective
Bragole then told Mr. Marks he knows he is rehashing what he already told Detective
Collier, but that he needs to ask his own questions. After a little more back and forth, the
following colloquy occurs:
        “[DETECTIVE BRAGOLE]: Alright. And then you and [Mr. Barnes] and
Athma, how do you pronounce his name?
        “[MR. MARKS]: Athmani.
        “[DETECTIVE BRAGOLE]: Athmani, go inside this [Del Taco] . . . .
        “[MR. MARKS]: Uh huh . . . .”
        Mr. Marks then described what the three of them did inside the Del Taco. His
statement is basically the same as his prior statement to Detective Collier. Despite
defendant’s suggestion to the contrary, it is clear that Mr. Marks implicated defendant as
one of the participants in the robbery in both statements to the two detectives. His two
prior statements and the positive identifications by Ms. Covarrubias and Ms. Medrano
constitute substantial evidence on which the jury could conclude defendant was a
participant in the robbery. (People v. Mohamed (2011) 201 Cal.App.4th 515, 521-522
[on “ ‘the question of identity, to entitle the reviewing court to set aside a jury’s finding
of guilt the evidence of identity must be so weak as to constitute practically no evidence
at all’ ”].)
                                       DISPOSITION
        The judgment of conviction is affirmed.


                                            GRIMES, J.
        WE CONCUR:
                             BIGELOW, P. J.




                             RUBIN, J.



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