Filed 2/13/15 P. v. Robinson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

MONTEL LAMARR ROBINSON,

 Defendant and Appellant.

 G050398

 (Super. Ct. No. FVA1201183)

 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 modified.

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 Attorney General, Steve Oetting, Tami 

Falkenstein Hennick and Collette Cavalier, Deputy Attorneys General, 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 four years eight months in prison.

On appeal defendant contends (1) insufficient evidence shows he aided and 

abetted grand theft of a person; (2) the court’s multi-tasking was improper; (3) the court 

abused its discretion by allowing him to be impeached with a petty theft infraction; and

(4) the court improperly ordered him to pay victim restitution for the robbery charge of

which he was acquitted (count 1). As to this last contention, we agree. But 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 daughter and her 

cousin, Maria Munoz. As Quintero pushed a grocery cart toward her van, a man grabbed 

her from behind, put his hand on her neck, and took a pendant bearing her name from the 

gold chain she was wearing. He then came in front of her and grabbed the chain. 

Because Quintero held onto the chain, the man was only able to take part of it. The man 

left running, along 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, stood near a truck looking at a roll of 

wire. Aguilar noticed a young man 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 fell 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 compact vehicle.

At trial, Aguilar identified defendant as the man who took his chain. He

had also previously identified him from a photographic lineup. Aguilar told the 

investigating officer that the man who took his chain was a black male in his 20’s and 

about six feet tall.

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

Grand Theft of Patricia Castillo

Less than two weeks later, Patricia Castillo parked directly in front of a Big 

Lots store. Nine months pregnant, she was with her daughters, ages nine and six. She

wore a thick gold chain which held her two wedding rings and a pendant.
4

Two young men were sitting right next to each other on the planter 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 

around the front of the vehicle.

One man looked at Castillo and she smiled at him. He snatched her chain 

and ran to the apartments on Jackson Street.

The other man stood up, walked away, and turned onto a street toward the 

Jackson Street apartments. Castillo screamed, “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 photograph from a photographic lineup as 

the man who walked away. At trial she testified he was around 5 feet 11 inches tall.

Robbery of Jessica Calix

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

a vehicle where her husband was waiting. She wore a thick chain with a gold pendant 

with diamonds.

Two men walked on the sidewalk toward her. As they came closer, one 

man walked in front of her and grabbed at her necklace. He ran away, carrying the

necklace. The other man ran with him.

At trial, Calix identified defendant as the person 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 photographic 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). Other times he had no gold to 

sell, but accompanied another person.

Police Interview

A detective testified defendant is six feet two inches tall. In a police

interview, defendant had first denied 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 

to do with any of the robberies. He denied ever being 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 grand theft of Castillo. In considering his contention, we review the whole 

record in the light most favorable to the judgment “‘to determine whether it discloses 

substantial 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

An aider and abetter acts with knowledge of the perpetrator’s unlawful 

purpose and with the intent to facilitate the crime, and directly or indirectly aids, 

promotes, or encourages the commission of the offense. (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 aider and abettor 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.App.3d 907, 911.) The jury may, however, “consider [these 

factors] in assessing a defendant’s criminal responsibility.” (People v. Nguyen (1993) 21 

Cal.App.4th 518, 530.) For example, an aider and abettor’s presence with the perpetrator

may serve “to divert any suspicion as to their purpose,” or allow the aider and abettor “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 these purposes may be 

sufficient to show a defendant aided and abetted 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, 1094-1095.)

Substantial evidence supports the jury’s finding defendant aided and 

abetted the grand theft of Castillo’s necklace. His presence at the crime scene allowed 

him to look out for interference and also diverted suspicion from his partner and him —

Castillo believed they were conversing and “kicking back,” and she even smiled at 

defendant. Immediately after the crime, he left the scene and walked in the same 

direction as the thief. The jury could reasonably infer defendant’s actions under these 

circumstances shared a common scheme with the other robberies in which he and his 

partner were involved. This is sufficient evidence defendant aided and abetted the crime.
7

Defendant’s Complaint About the Court’s “Multi-tasking” is not Cognizable on Appeal

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 [there].” She reiterated, “I am paying 

attention, but I’m also getting my other work done.”

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, defendant 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 asserts an objection would have been futile, but this assertion is speculative. 

Alternatively, he contends there was no tactical reason for his trial counsel’s failure to 

object and he therefore received ineffective assistance. But, on the other hand, he asserts

his trial counsel did not object because 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, although we agree that multitasking by courts should not become the norm, we conclude in this case it did not 

constitute judicial misconduct 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 that 

it had been listening while multi-tasking “to all of the proceedings,” not simply during 

defendant’s testimony. Furthermore, the court’s admonitions and rulings during 
8

defendant’s testimony revealed she was paying attention. In addition, 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 what your verdict should 

be.” Jurors are presumed to have followed the court’s instructions. (People v. Sanchez

(2001) 26 Cal.4th 834, 852.)

Defendant Was Not Prejudiced by the Court’s Ruling He Could Be Impeached with an 

Infraction

Defendant contends the 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 custody, the offense was reduced to a petty theft infraction

pursuant to a plea bargain agreement and defendant pleaded 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 the court stated it would 

research (1) whether any case law prohibited the court from doing so absent 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 completing its research and finding no case on point, the court ruled defendant 

could be impeached with “that petty 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 pursuant 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 or the underlying conduct, nor offer an official record of the 

conviction.” The prosecutor briefly mentioned the conviction in her rebuttal closing 

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

“What are some factors 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 were 

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. These 

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) 52 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 criminal cases of all ‘relevant’ proffered 

evidence unless exclusion is allowed or required by” specified evidentiary rules. 

(Wheeler, at p. 292.) 

Defendant complains he was impeached with the conviction rather than the 

underlying misconduct, but his own 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 than the underlying conduct. For example, defendant’s admission of

the petty theft infraction might have been less damaging to his credibility than a 

description of the underlying conduct would have been. (Strickland v. Washington

(1984) 466 U.S. 668, 689 [defendant 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.

Defendant 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 trial court has broad latitude under Evidence Code section 352 to 

exclude impeachment evidence. (Wheeler, supra, 4 Cal.4th at p. 296.) 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 

whether defense counsel moved for exclusion of the evidence under Evidence Code 

section 352. Nor was the court required 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 considered Evidence Code 

section 352. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Gurule (2002) 28 

Cal.4th 557, 609 [trial court’s error in admitting defendant’s prior convictions for 

impeachment purposes was harmless under Watson].) The court’s reasoning for its ruling 

was sound and was explicitly based in part on the fact the infraction had been reduced 

from a second degree commercial burglary charge (thus arguably incorporating a 

probative versus prejudice evaluation). Moreover, the evidence against defendant was 

strong, and the crimes were similar in nature and close in time. The credibility of his 

alibis and denials was weakened by his admission that he had lied during a police 

interview, by his failure to call any witnesses to corroborate his alibis, by the evidence 

that the victims of the crimes of which he was convicted had identified him as a 
12

participant, and by Sanchez’s testimony he was 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 the prosecutor’s mention of it 

in her closing argument, altered the jury’s assessment of the believability of his 

testimony.

Restitution to Quintero was Unauthorized

The jury acquitted defendant of the robbery of Quintero (count 1). 

Nonetheless, the court ordered defendant to pay a victim restitution fine for the crime. 

This was error, as the Attorney General concedes.

A sentence is unauthorized if it “‘could not lawfully be imposed under any 

circumstance in the particular case.’” (People v. Percelle (2005) 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 commission 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 which the defendant was 

acquitted.” (People v. Percelle, supra, 126 Cal.App.4th at p. 180.)
13

DISPOSITION

The judgment is modified by striking the $220 victim restitution order as 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.