Filed 8/27/13 P. v. Guy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061686
Plaintiff and Respondent,
v. (Super. Ct. No. SCN262049)
MICHAEL GUY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Harry M.
Elias, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Michael P.
Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Michael Guy of numerous counts of
robbery arising out of three commercial armed robberies that took place in May 2009. (Pen. Code,1 §211; counts 1-4, 9-11.) The jury also convicted Guy of related counts of
false imprisonment of employees at the stores. (§§ 236 & 237, subd. (a); counts 6-8, 13-
15.) As to each conviction, it was found true that Guy personally used a firearm within
the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b).
However, Guy was acquitted of two counts of kidnapping employees for robbery.
(§ 209, subd. (b)(1); counts 5, 12.)
After a court trial, all the prior conviction allegations against Guy were found true.
(§§ 667.5, subd. (b) & 668, prison priors; §§ 667, subd. (a)(1), 668 & 1192.7, subd. (c),
serious felony priors & strike priors, §§ 667, subds. (b)-(i), 668 & 1170.12.) The court
sentenced Guy to a prison term of 105 years to life, and he appeals.
At trial, the jury heard evidence on the charged robbery offenses, and also a
fourth, uncharged robbery. Guy presented a defense of duress by a fellow participant in
three of the four robberies. On appeal, he contends the trial court prejudicially erred by
admitting evidence of the uncharged robbery for purposes of proving his intent to rob and
the existence of a common plan, as well as motive and identity. Guy contends that the
claimed similarities between the uncharged robbery and the charged offenses were not
sufficiently distinctive to be admissible to prove identity, intent, or a common plan. He
further seems to argue the evidence of the three sets of charged offenses should not have
been allowed cross-admissibility.
1 All further statutory references are to the Penal Code unless otherwise specified. 2 Guy's claims are not supported by the record and we affirm the judgment of
conviction.
I
INTRODUCTION: MAY 16, 2009, ROBBERY OF ENCINITAS CVS PHARMACY
On May 16, 2009, Guy was arrested in connection with a robbery at an Encinitas
CVS pharmacy. Around 2:00 a.m. on May 16, 2009, he and another man entered the
store and demanded that an employee open the store safe. One man wore a mask and
carried a silver gun. The employee opened the cash registers and the two robbers took
money. They took two other employees to the back of the store and duct taped their
hands and/or ankles, and then took the first employee there and restrained him.
While leaving the store through the emergency exit, Guy and his companion
triggered an alarm. Although Guy attempted to escape, the car taking him from the scene
crashed. Police apprehended Guy, but not his companion. Police searched the car and
found a revolver, cash, a cell phone, and some CVS products with security devices on
them.
Guy told investigators that he and a friend had entered the store to buy liquor, but
decided to take it. When confronted, he decided to commit the robbery.
After being in jail for a day, Guy called his family and asked them to call police to
reinterview him, and he explained that he had been coerced by Lawrence Humes into
participating in not only the Encinitas CVS robbery, but also another CVS robbery and an
AutoZone robbery on May 15.
3 Investigation disclosed that Guy's cell phone records placed him near the Encinitas
CVS pharmacy around the time of the robbery. Guy's cell phone had a missed call from
Humes. The police found Humes about a week later and arrested him at a hotel room,
where they found he had a silver revolver.
At trial, none of the employees was able to identify Guy as one of the robbers.
(Counts 9-15.)
II
ADDITIONAL CHARGED AND UNCHARGED OFFENSES
A. May 4, 2009, Kragen Auto Store Charged Offense
Evidence presented at trial showed that at closing time on May 4, 2009, Guy
entered the Kragen Auto Parts store on Convoy Street and asked for a product. One of
the employees helped Guy while the other went to the store's back room. Suddenly, Guy
pulled a gun on the employee who was helping him and demanded money from the cash
register. After obtaining $420, Guy demanded that the employee open the safe. When
the employee said he did not have the combination, Guy left, telling the employee not to
look at him. Guy was wearing a black hooded sweatshirt. Neither employee looked
outside or saw any accomplice. Both employees identified Guy in a line-up and in court.
Investigation of cell phone records showed calls near the Kragen store were made
from both Guy's cell phone and Humes's cell phone, at around the time of the robbery.
(Count 1.)
4 B. May 15, 2009, AutoZone Store Charged Offenses
Evidence presented at trial showed that at closing time on May 15, 2009, two
armed robbers entered a Mira Mesa AutoZone store after it closed for the night. The
robbers had a silver revolver and possibly another gun. They found three employees, tied
up two of them with "zip ties" and duct tape, and then had the third employee open the
safe. They took money and then tied up the third employee.
At trial, the employee who had opened the safe was able to identify the robbers as
the same people in store surveillance photographs, but in court, he was unable to identify
Guy as one of them. Another employee was able to identify Guy in court as one of the
robbers. Cell phone records showed Guy's cell phone was active near the AutoZone store
at around the time of the robbery. (Counts 2-8.)
C. May 5, 2009, CVS Pharmacy in Murrieta (Uncharged Offenses)
Evidence presented at trial showed that at around 2:00 a.m. on May 5, 2009, Guy
and a companion arrived at a CVS pharmacy in Murrieta. Going inside, they showed an
employee a silver revolver, and told her to give them money from the registers and a safe,
which she did (approximately $6,000). As she cried, Guy tied her up with duct tape, next
to another restrained employee. Guy and his companion left.
Both women employees identified Guy in court, and said he had been wearing a
black hooded sweatshirt. Telephone records placed Guy's and Humes's cell phones near
the Murrieta CVS pharmacy at around the time of the robbery.
5 III
PRESENTATION AT HEARING ON MOTION IN LIMINE
Before the jury was selected, the court heard the prosecutor's motion in limine
seeking to introduce testimony about other robberies against different stores and
employees, to prove a common scheme or plan, to show identity, and to establish intent.
(Evid. Code, § 1101, subd. (b).) This evidence would include the three charged offenses
and also the uncharged robbery on May 5, 2009, at the Murrieta CVS pharmacy.2
Because the trial court had to make a discretionary decision before trial on
whether to admit such "other crimes" evidence, we evaluate its exercise of discretion by
considering the record before the trial court when it made its ruling. (People v. Lewis
(2001) 25 Cal.4th 610, 637; People v. Lindberg (2008) 45 Cal.4th 1, 23 (Lindberg); see
Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) We examine the
grounds offered by the prosecutor in the motion and at the argument. First, the
prosecutor referred to the "striking similarities" between the four sets of offenses, as
establishing a common scheme or plan, showing identity, and establishing intent. The
prosecutor intended to argue to the jury that the entire body of evidence to be presented
about both the charged and uncharged crimes evidence was probative of the charged
counts.
At the hearing, the prosecutor argued that both robberies of auto parts stores
occurred around 9:00 p.m. at closing time, and both CVS robberies occurred a few hours
2 The Murrieta robbery was being prosecuted separately in Riverside County. 6 later, around 2:00 a.m. on the following day. The robber's clothing (black hooded
sweatshirt) appeared to be similar in the security videos from the Kragen auto parts store
and the Murrieta CVS pharmacy. Also, in the other two-person robberies, the
perpetrators used the same modus operandi as in the Murrieta CVS robbery, by
apprehending the employees, duct taping them, putting them in a certain place in the
store, taking one to the register for pulling money out, and then taking off. The
prosecutor argued that the evidence of the uncharged Murrieta CVS robbery would not
unduly consume court time, because only two witnesses were needed. The prosecutor
also referred in argument to the cell phone data that placed both Guy and Humes at the
site of the first auto parts store robbery, as well as near the next three robberies.
At the hearing, defense counsel objected to the admission of the uncharged
Murrieta CVS robbery evidence, as creating a trial within a trial, being highly prejudicial
and unnecessary for this particular case. The court then ruled that the Murrieta CVS
robbery evidence would be admissible under Evidence Code section 1101, subdivision
(b) as it went to motive and modus operandi, as well as identity. With respect to the three
charged offenses, the court found that cross-admissibility was proper because of the
similarity of the fact pattern and timing, to show motive and identity.
As we will further discuss, even though the prosecutor had orally argued that the
trial court could take into account the cell phone evidence and the evidence of Guy's
similar clothing as seen on two of the surveillance videos, the trial court's ruling does not
expressly mention those criteria as supporting admission of the uncharged offense
evidence or cross-admissibility. Nor did the ruling expressly mention the establishment
7 of intent as a ground for admission of the evidence of other offenses, although the
prosecutor had argued that theory as well. (See People v. Ervine (2009) 47 Cal.4th 745,
779 (Ervine) [to be cognizable on appeal, a theory of admissibility must have been
presented at trial; alternatively, the basis for it must be in the record].)
IV
THE DEFENSE CASE; VERDICT; JUDGMENT
At trial, Guy testified that he owed Humes money for a failed drug production
deal. Humes threatened to harm Guy and his family unless Guy participated with him
and another man in three of the robberies. Even though Guy unwillingly participated, he
did not intend to rob the employees or the stores.
After instructions and deliberations, the jury convicted Guy of all the robbery
charges and those of false imprisonment. The court found true the prison and strike
priors and sentenced Guy to a total term of 105 years. He appeals.
V
ISSUES PRESENTED
A. Applicable Legal Principles
Evidence Code section 1101, subdivision (b), authorizes admission of evidence of
uncharged crimes to prove some fact, other than propensity, "such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident . . . ." (Ibid.; Evid. Code, § 1101, subd. (a) [prior criminal act normally not
admissible to prove conduct].) The admissibility of uncharged crimes depends on:
" '(1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged
8 crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion
of the evidence.' " (People v. Kelly (2007) 42 Cal.4th 763, 783; People v. Ewoldt (1994)
7 Cal.4th 380, 402 (Ewoldt).)
Circumstances in which evidence of uncharged crimes may properly be admitted
are described in Lindberg, supra, 45 Cal.4th 1, 23: "When the prosecution seeks to prove
the defendant's identity as the perpetrator of the charged offense with evidence he had
committed uncharged offenses, the admissibility of evidence of the uncharged offenses
turns on proof that the charged and uncharged offenses share sufficient distinctive
common features to raise an inference of identity. A lesser degree of similarity is
required to establish the existence of a common plan or scheme and still less similarity is
required to establish intent. [Citations, including Ewoldt, supra, 7 Cal.4th 380, 402-
403.]" (Italics added.)
In evaluating the admissibility of "other crimes" evidence on the issues of identity,
motive and intent, a trial court must "carefully review each count in light of the alleged
'other crimes' evidence to determine its probativeness to prove a material fact other than
criminal disposition and then . . . weigh its probative value against its prejudicial effect
before it is admitted." (People v. Armstead (2002) 102 Cal.App.4th 784, 793-794; Evid.
Code, §§ 1101, subd. (b), 352; Ewoldt, supra, 7 Cal.4th at p. 404.)3
3 Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury." 9 The weighing process under Evidence Code section 352 "depends upon the trial
court's consideration of the unique facts and issues of each case, rather than upon the
mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th
1301, 1314.) We review the trial court's rulings in this context for any abuse of
discretion. (People v. Lewis, supra, 25 Cal.4th 610, 637; see Alcala, supra, 43 Cal.4th
1205, 1220 [an evaluation of a trial court's exercise of discretion considers the record
before it when the ruling was made].)
B. No Forfeiture of Appellate Claims
Guy challenges his convictions by arguing the trial court erroneously allowed
admission of evidence about the uncharged robbery, because the similarities between it
and the charged robberies were not sufficiently distinctive to show identity, intent, or a
common plan, and only generic similarities were shown: e.g., the use of duct tape to
restrain employees and the hour of the day when the robberies occurred. (Evid. Code,
§ 1101, subd. (b); see People v. Rivera (1985) 41 Cal.3d 388, 393 ["signature" acts
required].) Guy points out that zip ties were used in only one of the four robberies, and a
mask was used in only one of the four robberies. He claims the uncharged offense was
particularly inflammatory evidence, since the employees in that case were women and
one of them cried during the ordeal. (Ewoldt, supra, 7 Cal.4th at pp. 404-405.)
Guy asserts his counsel's objections were adequate to protect his right to appeal
(i.e., creating a trial within a trial, being highly prejudicial, unnecessary for this particular
case). If those objections were not adequate, he argues we should examine the appellate
issues under a Sixth Amendment assistance of counsel analysis.
10 In response, the Attorney General appears to concede that the defense objection
below was adequate to preserve the issues for appeal, but argues that in any case, there
was no error, or any error was harmless. We agree that although the objection was quite
general in nature, the parties and the trial court were well aware of the nature of the
problem and had all the necessary tools to analyze it. There is no justification for treating
this as a forfeiture case, and we look at its merits.
C. Scope of Review
Guy strenuously argues that the trial court's ruling does not expressly mention the
establishment of intent as a ground for admission of the evidence of other offenses, and
therefore the ruling cannot be upheld on that ground. Guy also objects to any
consideration of the cell phone evidence and the evidence of Guy's similar clothing as
seen on two of the surveillance videos, as supporting admission of the uncharged offense
evidence, again because the ruling does not expressly rely on those grounds. (See Ervine,
supra, 47 Cal.4th 745, 779 [to be cognizable on appeal, a theory of admissibility must be
presented at trial, or at least a basis for the theory must be apparent in the record].)
Alternatively, Guy seems to make some kind of instructional error argument
(without calling it that), by contending that the jury was given CALCRIM No. 375 on the
proper usage of evidence of an uncharged offense to prove identity, intent, etc., and this
somehow served to expand the purposes for which the uncharged offense evidence could
properly be used. The record does not include any specific objection to the language
including intent in this jury instruction. Guy argues that the trial court's in limine ruling
must be restricted to its original grounds, motive and identity, and any additional use of
11 the uncharged offenses to prove intent would be improper. However, he also admits that
the trial court's decision is reviewed on appeal based on the facts known to the trial court
when the ruling was made. (See People v. Lawson (2005) 131 Cal.App.4th 1242, 1249
[potential effect of evidentiary error upon a defendant's decision to testify].)
On appeal, most of Guy's argument deals with the uncharged crimes evidence, and
it is not entirely clear from the briefs whether he continues to object that the trial court
should not have allowed the evidence about the three charged robberies to be cross-
admissible, for proving one another. On both types of evidence, the prosecution's motion
in limine presented the trial court with several theories of admissibility, common scheme
or plan, identity, and intent. The prosecutor argued for admissibility of the entire body of
evidence that would be presented, both the charged and uncharged crimes evidence, as
probative of the charged counts (due to "striking similarities" between the four sets of
offenses). Moreover, the prosecutor orally argued the probative effect of the similarity of
the cell phone data that was related to the various charges, as well as the similarity of
clothing in the surveillance videos. There is no indication the trial court rejected those
criteria in making the ruling. Instead, the court expressly relied on the explanation given
by the prosecutor, while designating the "most significant factor" as the similarity among
the various fact patterns and timing of the various offenses, to prove modus operandi and
motive.
We consider the grounds expressly relied upon in the ruling but additionally, are
not foreclosed from considering the trial court's exercise of discretion at that time in light
of all the theories presented to it, which clearly included intent. As the trial progressed,
12 Guy's defense of duress further highlighted the issue of his intent during the incidents. In
any event, there was an adequate basis in the record for each of those theories of
admissibility. (Ervine, supra, 47 Cal.4th 745, 779.)
Moreover, Respondent's brief essentially concedes that the theory about a common
scheme or plan is not as strong as the identified grounds for admission, identity and
motive. (Ewoldt, supra, 7 Cal.4th 380, 402-403 [lesser degree of similarity among the
uncharged and charged acts required for common scheme or plan].) We need only
address in detail the purposes of proving identity and intent as justifications for
admissibility of this evidence.
VI
ANALYSIS
A. Identity
The prosecutor argued the evidence was admissible to prove identity under
Evidence Code section 1101, subdivision (b), because the crimes shared numerous
distinctive features that were similar. On appeal, Guy argues the crimes were not
identical and involved only a series of extremely generic acts (duct tape use, timing of
robberies) that in no way constituted "signature" acts that would have identified a single
perpetrator. (People v. Rivera, supra, 41 Cal.3d 388, 393.) Moreover, the Kragen
robbery was unique because only a lone man committed it, without a mask and without
restraining any employees. The Mira Mesa AutoZone robbery by two men did not
involve a mask and uniquely involved zip ties, as well as duct tape. The Encinitas CVS
13 robbery uniquely involved a mask or bandanna. The Murrieta CVS robbery was different
because there were female victims.
Nevertheless, both the uncharged offenses and the charged acts involved robbery
at gunpoint and moving employees around, to obtain money from store registers or safes,
and three out of four incidents included a coperpetrator. The closing time auto store
robberies, followed by 2:00 a.m. CVS robberies some driving distance away, formed
some kind of pattern that was distinctive in nature and raised an inference of identity.
(People v. Medina (1995) 11 Cal.4th 694, 748 [admissibility depends upon proof that the
various offenses shared distinctive common marks sufficient to raise an inference of
identity].) Here, the uncharged offense evidence had a strong tendency toward proving
the identity of the perpetrator, a material issue, and there were enough common features
or similarities to justify its admission for that purpose (same types of commercial targets,
same sequence of events within the store, use of a gun, same time frame, same driving
vicinity). (Ibid.; People v. Carpenter (1997) 15 Cal.4th 312, 378-379 (Carpenter);
Lindberg, supra, 45 Cal.4th 1, 21-22.)
Further, Guy has not pointed to any rule or policy that should have required
exclusion of that evidence. (Carpenter, supra, 15 Cal.4th 312, 378-379.) As compared
to the manner in which the charged robberies took place, the court could permissibly
conclude there was no excessively inflammatory effect in admitting the evidence about
the uncharged robbery, even though the victims in that case were female. The evidence
had a significant tendency to prove the facts of modus operandi and identity, as expressly
14 stated by the trial court. The evidence was not unduly remote or dissimilar, nor was its
presentation unduly burdensome in terms of trial time.
B. Intent
To be relevant on the issue of intent, uncharged crimes need to be sufficiently
similar to a charged offense to support an inference that the defendant probably harbored
the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371; Ewoldt,
supra, 7 Cal.4th 380, 402 [least degree of similarity required to establish intent].)
Robbery is the felonious taking of personal property in the possession of another, "from
his person or immediate presence, and against his will, accomplished by means of force
or fear." (§ 211.) By pleading not guilty, Guy placed into dispute all the elements of the
robberies and other charges, as of the outset of trial, when the challenged evidentiary
ruling was made.
Later, Guy placed the issue of his intent to rob in further dispute, through his
defense of duress, and the jury instructions properly addressed that defense. In
CALCRIM No. 375, regarding other crimes evidence, the jury was told the evidence had
been admitted for a limited purpose, not to prove the defendant's predisposition to
commit crimes, but rather to determine whether the necessary element of intent to rob
was proven. This effectively eliminated any danger of confusing the issues or misleading
the jury. (Evid. Code, § 352.) No defense objections to the instruction have been called
to our attention, and "we presume the jury followed these instructions." (Lindberg,
supra, 45 Cal.4th 1, 25-26.)
15 We conclude these uncharged crimes were sufficiently similar to the charged
offenses to support and allow inferences that Guy probably demonstrated and had the
same intent to rob store employees in each instance. (People v. Kipp, supra, 18 Cal.4th
349, 371; Alcala, supra, 43 Cal.4th 1205, 1220 [trial court's exercise of discretion is
viewed in light of the record before the trial court when ruling was issued].) Since there
was no error or undue prejudice in the admission of this evidence for the purposes that
were presented to the trial court, no harmless error analysis is appropriate. (See People v.
Walker (2006) 139 Cal.App.4th 782, 808 [" 'the erroneous admission of prior misconduct
evidence does not compel reversal unless a result more favorable to the defendant would
have been reasonably probable if such evidence were excluded.' "].)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.