Filed 2/13/15 P. v. R obinson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MONTEL LAMARR ROBINSON, Defendant and Appellant. G050398
(Super. Ct. No. FVA 1201183)

O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino County, Ingrid Adamson Uhler, Judge. Affirmed as modif ied

. Laura P. Gordon, 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 Atto rney General, Steve Oetting, Tami Falkenstein Hennick and Collette Cavalier, Deputy Attorneys G eneral, for Plaintiff and Respondent.2 A jury convicted defendant Montel Lamarr Robinson of two counts of robbery (Pen. Code, § 211) 1 and one count of grand theft of a person (§ 487, subd. (c)) 2

The court sentenced him to fo ur years eight months in prison

.

On appeal defendant contends (1) insufficient evidence s h o w s he aided and abetted grand theft of a person; (2) t he court ’ s multi

- tasking w as i mproper ; (3) the court abused its discretion by allowing him to be impeached with a petty theft infraction; and (4) t he court improperly ordered him to pay victim restitution for the robbery c harge of which he was acquitted (count 1) . As to this last contention, we agree. B ut any error in the admission of impeachment evidence was harmless. Accordingly, with the exception
of the restitution order for count 1 , we affirm the judgment.

FACTS

Robbery of Monica Quintero

On the morning of May 13, 2012, Monica Quintero noticed two men together when she came out of a grocery store. Quintero was with her daught er and her cousin, Maria Munoz. As Quintero pushed a grocery cart toward her van, a m a n grabbed
h er from behind, put his hand on her neck, and took a pendant bearing her n ame from the gold chain she was wearing. He then came in front of her and grabbed the chain. Because Quintero held onto the chain, th e man was only able to take part of i t. The man left running , a long with the other man.

1 All statutory references are to the Penal Code unless otherwise stated.

2 The information charged defendant with four counts of robbery, but the jury acquitted him of the robbery charge in count 1 and the court reduced the robbery charge in count 3 to the lesser included offense of grand theft of a person.3 When shown photographs later, Quintero was unable to identify anyone as the man who took her chain. She described him to the police as a young black man about five feet eight inches tall.

Quintero ’ s cousin Munoz identified defendant as the robber from a photographic lineup

. Munoz was unable to identify him with 100 percent certainty in
court, but testified defendant looked somewhat like the robber.

Robbery of Jose Aguilar

About three weeks later , Jose Aguilar and a coworker , who were maintenance workers at an apartment complex, st oo d near a t ruck looking at a roll of
wire. Aguilar noticed a young ma n walking their way, but thought nothing of it , and
turned back to inspecting the wire.

Suddenly , someone grabbed Aguilar ’ s collar , slammed him to the ground , and tore off his “ real thick, long ” necklace

. Aguilar f e ll to the ground. His coworker
chased the suspect over a block wall , then down the street. A vehicle momentarily
blocked the coworker ’ s view, then he saw the suspect and his partner come out of a driveway entrance in a c ompact vehicle.

At trial, Aguilar identified defendant as the man who took his chain. He had also previously iden tified him from a photo graphic lineup. Aguilar t old the investigating officer that the man who took his chain w as a black male in his 20 ’ s and
about six feet tall.

At trial, Aguilar ’ s coworker testifi ed he did not see the suspect in court.

Grand Theft of Patricia Castillo

Less than tw o weeks later , Patricia Castillo park ed directly in fron t o f a Big
Lots store

. N ine months pregnant , she w a s with her daughters , ages nine and six

. She

w o r e a thick gold chain which held her two wedding ring s and a pendant.4 T wo young me n were sitting right next to each other on the pl anter in front of the Big Lots store

. They were talking to each other and “ looked like they were just kicking back, sitting there waiting for somebody. ” Castillo ’ s oldest daughter got out of
the vehicle ’ s passenger side, while Castillo held her younger daughter ’ s hand and walked

ar ound the front of the vehicle

.

One m a n looked at Castillo and she smiled at him. He snatched her chain
and ran to the apartments on Jackson Street

.

The other ma n stood up , walk ed away , and turned on to a st re et toward the Jackson Street apartments. Castillo scre amed, “ You ’ re with him. ” The man responded ,

“ No, I ’ m not, ” and “ kept walking, looking down at his phone, looking up, looking
around , ” and “ shaking his head saying that he wasn ’ t with him or motioning no. ”

Castillo identified defendant ’ s photo graph from a photographic lineup as the man who walked away. At trial s he testified he was around 5 feet 11 inches tall.

Robbery of Jessica Calix

Less than two months later , Jessica Calix le ft her home and walked toward

a vehicle where her husband was waitin g. She w o r e a thick chain wit h a gold pendant
with diamonds.

Two m e n walk ed on the sidewalk toward her. As they came closer, one

m an walked in front of her and grabbed at her necklace. H e ran away, carrying the
necklace. The other man ran with him.

A t trial, Calix identified defendant as the p erson who grabbed her necklace.
Calix testified she had described him to the police as a black male around five feet six
inches tall. She had also previously identified defendant from a photo graphic lineup.5

Cash for Gold Store

Maria Sanchez worked as a gold buyer at the Cash for Gold store . She
testified defendant came into the store between three to four times a week. Sometimes he had gold to sell , such as rings (sometimes with diamonds) , chains, earrings , and pendants (often religious pendants with female Mexican names). O ther times he had no gold to sell, but accompani ed another person.

Police Interview

A detective testified d efendant is six feet two inches tall. In a police interview, defendant had first de nied ever being in the Cash for Gold store , but had later stated he might have been applying for a job.

Defense Case Defendant testified on his own behalf. During direct examination, he
admitted he had pled guilty to a petty theft infraction in 2011. He denied having anything

t o do with any of the robberies. He denied ever be ing in the Cash for Gold store.

DISCUSSION

Substantial Evidence Supports Defendant ’ s Conviction for Grand Theft of a Person

Defendant contends insufficient evidence supports the finding he aided and
abetted the g r and theft of Castillo. I n considering his contention , w e review the whole record in the light most favorable to the judgment “ ‘ to determine whether it discloses
subst antial evidence

— that is, evidence which is reasonable, credible, and of solid value

— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. ’” ( People v. Mayfield (1997) 14 Cal.4th 668, 767.)6 A n aid er and abet te r act s with knowledge of the perpetrator ’ s unlawful
purpose and with the intent t o facilitat e the c rime , and directly or indirectly aids, promotes, or encourages the commission of the offens e

. ( People v. Beeman (1984) 35 Cal.3d 547, 561 ; People v. Villa (1957) 156 Cal.App.2d 128, 133

- 134

. ) Whether a person who was present at the time and place of a crime was an ai d er and abett or is a factual question “ for the jury to decide from all the circumstances proved [citations]

. ” ( People v. Wilson (1928) 93 Cal .App. 632, 636.) “ Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting. ” ( In re
Michael T. (1978) 84 Cal.A pp.3d 907, 911.) The jury may, however, “ consider [ these
factors ] in assessing a defendant ’ s criminal responsibili ty. ” ( People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) For example, an aider and abettor ’ s presence with the perpetrator
may serve “ to div ert any suspicion as to their purpose, ” or allow the aider and abe t t or “ to give warning of the approach of anyone seeking to interfere with their enterprise ” or to help the perpetrator escape. ( Wilson , at p. 636

. ) Any one of the se p urposes may be
sufficient to show a defendant aid ed and abett ed the commission of a robbery. ( Ibid. )
Other factors which the fact finder may consider are the defendant ’ s conduct before and after the offense, including flight from the crime scene. ( In re Lynette G. (1976) 54 Cal.App.3d 1087, 10 94

- 1095 .)

Substantial evidence supports the jury ’ s finding defendant aided and
abetted the grand theft of Castillo ’ s necklace. H is presence at the crime scene al low ed
him to look out for interference and also divert ed suspic ion from his partner and him

— Castillo b elieved they we re conversing and “ kicking back , ” and s he even smiled at
defendant. Immediately after the crime, h e left the scene and walked in the same
direction as the thief

. The jury could reasonably infer defe ndant ’ s actions under these
circumstances shared a common scheme with the other robberies in which he and his partner were involved. This is su fficient evidence defendant aided and abetted the crime.7

Defendant ’ s C omplaint A bout the C ourt ’ s “ M ulti

- t asking ” is not C ognizable on A ppeal At the close of the People ’ s case and before defendant testified in his own defense, the judge informed the jury she was “ multi

- tasking ” and trying to do research for

a “ huge motion ” in an upcoming death penalty case, but had been “ listening to all of the proceedings ” and was capable of doing that. She assured the jury she “ could completely pay attention to the trial as [she was] working up [t here ]

. ” She reiterated, “ I am paying attention, but I ’ m also getting my other work d one. ”

Defendant contends the court ’ s announcement it was multi

- tasking trivialized his case to the jury. He also contends the court ’ s timing, by announcing its
multi

- tasking immediately before he testified , denigrated the defense in the jury ’ s eyes. He additionally asserts the court ’ s multi

- tasking “ was the equivalent of having no judge
at all ” and constituted structural error.

As a threshold matter, d efendant has forfeited this claim by failing to object below. ( Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; see Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 478.)
Defendant assert s an objection would have been futile , but th is assertion is speculative. Alternatively, he contends there was no tactical r eason for his trial counsel ’ s failure to object and he the re fore received ineffective assistance

. But, o n the other hand, he asserts his trial counsel did not object becaus e an objection would have “ further embed[ed] the issue in the minds of the jurors ” ; thus, defendant himself posits a tactical reason for his
counsel ’ s decision.

Even addressing the issue on the merits, a lthough we ag re e that multi

tasking by courts should not become the norm, we conclude in this case it did not constitute judicial misco nduct or error. Defendant does not cite any particular instance in
the record where the court ’ s attention deviated from his trial. The court told the jury t hat it had been listening while multi

- tasking “ to all of the proceedings , ” not simply during
defen dant ’ s testimony. Furthermore, the court ’ s admonitions and rulings during8

defendant ’ s testimony revealed she was paying attention

. In a ddition , we “ presume the official duty has been regularly performed [citation] , and this presumption applies to the actions of trial judges

. . . . ” ( People v. Duran (2002) 97 Cal.App.4th 1448, 1462 , fn. 5 .) Finally, the judge instructed the jury, “ Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or w hat your verdict should
be. ” Jurors are presumed to have followed the court ’ s instructions. ( People v. Sanchez (2001) 26 Cal.4t h 834, 852.)

Defendant Was Not Prejudiced b y the Court ’ s Ruling He Could Be Impeached with an Infraction
Defendant contends t he court abused its discretion by ruling he could be impeached with an infraction. The record contains only the following information on the
infraction. In 2011, defendant was arrested for second degree commercial burglary.
While defendant was in custod y, the offense was reduc ed to a petty theft infraction
pursu ant to a plea bargain agreement and defendant pl eaded guilty to the infraction.

Prior to the instant trial , defense counsel moved to exclude evidence of
defendant ’ s petty theft infraction for impeachment purposes should he choose to testify.
The court ’ s initial indicated ruling was to allow the prosecution to impeach defendant
with the infraction because it is a crime of moral turpitude. But t he court stated it would
research (1) whether any case law prohibited the court from doing so absen t a felony or
misdemeanor conviction , and (2) whether People v. Wheeler (1992) 4 Cal.4th 284 ( Wheeler ) would require the People to call witnesses to prove the underlying misconduct.
After co mpleting its research and finding no case on point, the court ruled defendant
could be impeached with “ th at p e tty theft as an infraction ” because courts look to the conduct, not to the nature of the conviction, and because the infraction was reduced from

a second degree commercial burglary pursua nt to a plea bargain agreement.9 At the outset of defense counsel ’ s direct examination of defendant, the following colloquy ensued:

“ Q Mr. Robinson, um, let ’ s get something out of the way real quick: On September 22nd, 2011

— A Yes, sir? Q

— you were involved in an infraction petty theft;
is that correct?
A Yes, sir. Q You pled guilty to that; is that right?
A Yes, sir. ”

As defendant acknowledges , the “ prosecutor did not cross

- examine [ him ]
about this conviction o r the underlying conduct, nor offer an official record of the
conviction. ” The prosecutor briefly mention ed the conviction in her rebuttal closing

statement in the context of her discussion of many other factors relating to credibility :

“ What are some fa ctors you could consider in deciding whether somebody is credible or not? None of these victims or witnesses had a motive to lie. [Defense counsel] tells you that all you have is the unrefuted testimony of the defendant that he never went into that
Cash For Gold [store] . Unrefuted testimony of an admitted liar. He testified. His credibility is just as much at issue as anybody else ’ s. On that stand he admitted he lied to
Detective Mills about

. . . his whereabouts on one of the cases. He knew they wer e looking for him. They wanted to question him. He told them he was at somebody ’ s wedding, then admitted to Detective Mills, ‘ No. I lied about that. I wasn ’ t at the wedding. ’ He admitted to suffering an infraction conviction for a theft offense. Thes e are all things you could consider. ” The prosecutor then pointed out that defendant ’ s alibi for two of the charges against him involved his being with his mother or his grandmother, yet neither of them came in and testified.10 Defendant is correct that a nonfelony “ conviction

. . . is inadmissible hearsay when offered as evidence that a witness committed misconduct bearing on credibility. ” ( Wheeler , supra , 4 Cal.4th at p. 297.) But a “ witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court ’ s exercise of discretion under Evidence Code section
352. ” ( People v. Clark (2011) 5 2 Cal.4th 856, 931, italics added .)

Defendant asserts infraction misconduct (as opposed to misdemeanor misconduct, which was the specific subject in Wheeler , supra , 4 Cal.4th at p. 288 ) should not be admitted for impeachment purposes. But Wheeler made clear that section 28 , subdivision (d) , “ requires the admission in c riminal cases of all ‘ relevant ’ proffered evidence unless exclusion is allowed or required by ” specified evident ia ry rules

. ( Wheeler , at p. 292.)

Defendant complains he was impeached with the conviction rather than the underlying misconduct, but his ow n trial counsel introduced evidence of the conviction

. Although defendant contends his trial counsel rendered ineffective assistance by doing so, the attorney may have had tactical reasons for preemptively focusing on the
conviction rather t h a n the underlying conduct. For example, defendant ’ s admi ss i on of the petty theft infraction m ight have been less damag ing to his credibility than a description of the underlying conduct would have been . ( Strickland v. Washington (1984) 466 U.S. 668, 689 [ defend ant must overcome presumption the challenged action

“ might be considered sound trial strategy ” ].)11 Defendant contends the court itself ruled the prosecution could impeach him with evidence of the infraction conviction as opposed to his conduct. The court ’ s oral ruling is ambiguous on this score, but stressed that the case law focuses on a
defendant ’ s conduct , not the nature of the conviction. Defense counsel did not ask for a clarification of the ruling.

De fendant also contends the court was required to conduct an Evidence
Code section 352 evaluation before concluding he could be impeached with the petty
theft infraction

. A t rial court h as broad latitude under Evidence Code section 352 t o exclu de impeachment evidence

. ( Wheeler , supra , 4 Cal.4th at p. 29 6.) With respect to nonfelony conduct, “ courts may and should consider with particular care whether the
admission of [ impeachment ] evidence might involve undue time, confusion, or prejudice which outweighs its probative value

. ” ( Id. at pp. 296

- 297 .) It is unclear from the record
wh ether defense counsel moved for exclusion of the evidence under Evidence Code
section 352. Nor was the court re quired to “ expressly cite Evidence Code section 352 in its ruling

. . . . ” ( In re Romeo C. (1995) 33 Cal. App. 4th 1838, 1845 .)

In any event, it is not reasonably probable the verdict would have been
more favorable to defendant even if the court had explicitly con sidered Evidence Code
section 352 . ( People v

. Watson (1956) 46 Cal.2d 818, 836 ; People v. Gurule (200 2) 28
Cal. 4th 557, 609 [ trial court ’ s error in admitt ing defendant ’ s prior convictions for impeachment purposes was harmless under Watson ].) The court ’ s reasoning for its ruling
was sound and was explicitly ba s ed in part on the fact the infraction had been reduced from a second degree commercial burglary charge (thus arguably incorporat ing a probative versus prejudice evaluation ). Moreover, t he evidence against defendant was strong , and t he crimes were similar in nature and close in time

. The credibil ity of hi s alibis and denials w as weakened by his admission that he had li ed during a police interview, by his failure to call any witnesses to corroborate his alibis, by th e evidence
that the victims of the crimes of which he was convicted had identified him as a12

participant, and by Sanchez ’ s testimony he w as a frequent visitor to the Cash for Gold

store. Given this overwhelming damage to his credibility, it is unlikely that his bare admission he pleaded guilty to a petty theft infraction, and t he prosecutor ’ s mention of it in her closing argument, altered the jury ’ s assessment of the believability of his

te stimon y.

Restitution to Quintero was U nauthorized
The j ury a cquitted defendant of the robbery of Quintero (count 1)

. Nonetheless, the court o rdered defendant to pay a victim restitution fine for the crime. This was error, as the Attorney General concedes.

A sentence is unauthorized i f i t “‘ could not lawfully be imposed under any circumstance in the particular case. ’” ( People v. Percelle (20 05) 126 Cal.App.4th 164, 179.) A defendant may raise the issue for the first time on appeal. ( Ibid. )

Under section 1202.4, subdivision (a)(1), it “ is the intent of the Legislature
that a victim of crime who incurs an economic loss as a result of the com mission of a crime shall receive restitution directly from a defendant convicted of that crime. ” “ [I] n the nonprobation context, a restitution order is not authorized where the defendant ’ s only relationship to the victim ’ s loss is by way of a crime of whi ch the defendant was acquitted. ” ( People v. Percelle , supra , 126 Cal.App.4th at p. 180.)13 DISPOSITION

The judgment is modified by stri king the $220 victim restitution order a s to count 1 . In all other respects, the judgment is affirmed. The abstract of judgment does not reflect the imposition of this restitution order; thus the abstract of judgment does not
need to be corrected.

IKOLA, J.

WE CONCUR:

FYBEL, ACTING P. J.

THOMPSON, J.