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Filed 6/21/13 P. v. Grayson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT LOUIS GRAYSON,

Defendant and Appellant.

E056648

(Super.Ct.No. FSB1200221)

OPINION

APPEAL from the Superior Court of San Bernardino County. Annemarie G. 

Pace, Judge. Affirmed.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

Following a jury trial, defendant Robert Louis Grayson was convicted of first 

degree burglary, with the jury finding true the special allegation that a person not an 
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accomplice was present in the residence (Pen. Code, §§ 459, 667.5, subd. (c)).1 The trial 

court found true defendant‟s prior serious felony conviction and prison prior allegations. 

Defendant was sentenced to an aggregate term of 18 years in prison.

Defendant‟s appellate counsel has filed a Wende brief under People v. Wende 

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a 

statement of the case, a summary of the facts, and requesting this court to undertake a 

review of the entire record. This court offered defendant an opportunity to file a personal 

supplemental brief, which he has not done. We have concluded our independent review 

of the record and find no arguable issues or errors. The judgment is affirmed.

II

FACTUAL BACKGROUND

On January 13, 2012, around 9:00 a.m., Gilbert Acosta was awakened by a loud 

bang. Defendant broke into Acosta‟s home by breaking the front door jamb, using blunt 

force. Acosta saw a shadow pass by his slightly open bedroom door. Acosta called out, 

“Hey.” Defendant turned around, looked at Acosta, and said, “My bad. Wrong house,” 

and then quickly left without taking anything. Acosta identified defendant in court and 

testified he had seen defendant from a distance of four to 10 feet.

As defendant was backing out of Acosta‟s driveway, Acosta grabbed a bat and 

stepped out on the porch. Acosta wrote down the license plate number of the small, 

white car defendant was driving. There was another person in the car with defendant. 

 

1

 Unless otherwise noted, all statutory references are to the Penal Code.
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Acosta gave the license plate number to the police when they arrived. The white car was 

registered to Darrell Fowler and Kadedra Fowler. Kadedra owned the car at the time of 

the burglary. Defendant lived with Betty Fowler, Betty‟s ex-husband, Darrell Fowler, 

and their daughter, Kadedra, with whom defendant had children. A police helicopter 

flew over the Fowler residence. Police saw the white car parked on the street in front and 

two men in the backyard. The residence was two and a half miles from Acosta‟s house.

Defendant and codefendant Jonathan Lee Goldman were detained at the residence. 

The police took Acosta to the residence and admonished him that defendant and 

Goldman might not be the offenders. Acosta identified defendant as the intruder but was 

unable to identify Goldman. Acosta recognized the white car at the residence as the car 

he saw defendant drive away in.

The police did not find any incriminating fingerprints at the crime scene. 

However, they did find latex gloves commonly used by burglars to avoid leaving 

fingerprints. Five latex gloves were also found in defendant‟s pocket after his arrest. In 

addition, “Kadedra” was tattooed on his left shoulder. A police forensic specialist found 

a shoe impression by the kicked-in front door. The shoe impression was consistent with 

the right shoe defendant was wearing when he was arrested.

Betty testified she had met Goldman through defendant and Kadedra. The 

morning of the burglary, Kadedra had gone to the store with Darrell in his truck. 

Defendant was home with Betty that morning, watching the children. Around 9:00 a.m., 

Betty heard a helicopter and then saw Goldman driving like crazy in Kadedra‟s white car. 

When he pulled up to the house, Betty yelled at him for being late. The police arrived 
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shortly after that. By the time Kadedra returned from the store, defendant had already 

been arrested and the police had left.

According to police testimony, Betty made statements to them inconsistent with 

her trial testimony. Betty told the police that during the morning of the burglary, Darryl 

called to tell her that he was sending defendant to pick her up to look at a home she and 

Darrell were considering purchasing. Defendant arrived in a white car at 9:17 a.m. 

Goldman was driving and defendant was a passenger. Betty also told the police that 

neither defendant nor Goldman had been there earlier that morning.

III

DISCUSSION

Defendant has proposed the following issues for our independent review.

(1) Whether denial of defendant‟s motion to suppress the in-field show-up

constituted prejudicial error under People v. Waidla (2000) 22 Cal.4th 690, 730 and 

People v. Nguyen (1994) 23 Cal.App.4th 32, 39.

There is no basis for challenging the trial court‟s denial of defendant‟s motion to 

suppress the in-field showup, under People v. Waidla, supra, 22 Cal.4th at page 730 or 

People v. Nguyen, supra, 23 Cal.App.4th at page 39. Acosta‟s identification of defendant 

was reliable under the totality of the circumstances. During the in-field showup 

conducted shortly after the charged crime, a police officer told Acosta that, although 

defendant and Goldman had been detained, he should not infer from this that they had or 

had not committed the crime. The officer also told Acosta he was not obligated to 

identify anyone. The officer asked Acosta to identify similarities between the persons 
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detained and the persons who committed the crime. Acosta was told to tell the officer if 

either of the detained persons committed the crime. Acosta was first shown defendant. 

Acosta spontaneously said, “Yeah, that‟s him.” Acosta then was shown Goldman but 

was unable to identify him. Based on the foregoing, we find there was substantial 

evidence to support the trial court finding that the in-field showup was properly 

conducted and was not unduly suggestive or coercive.

(2) Whether admission of evidence of the police dispatch call constituted 

prejudicial error under People v. Brenn (2007) 152 Cal.App.4th 166, 175 (Brenn) and 

Davis v. Washington (2006) 547 U.S. 813, 822 (Davis). 

There is no basis for challenging the trial court‟s admission of evidence of the 

police dispatch call because the call was nontestimonial. Acosta testified he made the 

call right after defendant committed the crime and fled. Acosta immediately wrote down 

the license plate of the car and called the police. The primary purpose of the call was to 

assist the police with an ongoing emergency, primarily by assisting in apprehending the 

fleeing perpetrators of the crime. Acosta “„simply was not acting as a witness; [he] was 

not testifying. What [he] said was not “a weaker substitute for live testimony” at trial 

. . . .” (Brenn, supra, 152 Cal.App.4th at pp. 175-176, quoting Davis, supra, 547 U.S. at 

p. 828.)

(3) Whether admission of evidence of defendant‟s tattoos constituted prejudicial 

error under People v. Partida (2005) 37 Cal.4th 428, 439 and Estelle v. McGuire (1991) 

502 U.S. 62, 70. 
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Police Officer Thomas, testified that he noticed the name, “Kadedra” tattooed on 

defendant‟s left shoulder. Thomas connected this name with the name of one of the 

registered owners of the car driven by the perpetrator. At trial, Thomas was shown a 

photograph of the tattoo and testified that it was the tattoo he had observed on defendant 

the day defendant was apprehended. The tattoo evidence was admissible under Evidence 

Code section 352, as sufficiently relevant and not unduly prejudicial. Admission of the 

tattoo evidence therefore did not violate defendant‟s due process rights.

(4) Whether the prosecutor prejudicially shifted the burden of proof during 

closing argument under People v. Woods (2006) 146 Cal.App.4th 106, 112 (Woods). 

During the prosecutor‟s closing argument, defense counsel objected to the 

following statements on the ground the prosecutor was shifting the burden: “You know,

as you‟re probably aware of, I‟m not the only person who has subpoena power in the 

case. Defense counsel‟s got subpoena power. They can bring in whoever they want, just 

like I brought in people I wanted, the people that I felt I needed to make the case. Not 

everyone is going to testify that is remotely related to the case. So if other people are 

key, well, then, Ms. Higuera should have brought those people in.”

The prosecutor did not prejudicially shift the burden of proof. As explained in 

Woods, supra, 146 Cal.App.4th at page 112: “A prosecutor may fairly comment on and 

argue any reasonable inferences from the evidence. [Citation.] Comments on the state of 

the evidence or on the defense‟s failure to call logical witnesses, introduce material 

evidence, or rebut the People‟s case are generally permissible. [Citation.] However, a 

prosecutor may not suggest that „a defendant has a duty or burden to produce evidence, or 
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a duty or burden to prove his or her innocence.‟ [Citations.]” In the instant case, the 

prosecutor fairly commented on the state of the evidence and the defense‟s failure to call 

logical witnesses.

(5) Whether there was insufficient proof of defendant‟s prior convictions, because 

there was no fingerprint or comparison testimony implicating defendant (People v. 

Matthews (1991) 229 Cal.App.3d 930 (Matthews); § 969b). 

The parties waived a jury trial on defendant‟s prior convictions. During the court 

trial on the priors, the prosecutor submitted the following evidence: (1) a certified rap 

sheet for defendant, indicating a May 14, 2009, conviction for assault with a firearm and 

violation of section 12021, with a 24-month prison sentence (§ 245, subd. (a)(2)) (exh. 

60); (2) a certified prior packet for FSB901539, in defendant‟s name, corroborating the 

May 14, 2009, conviction, with a 24-month prison sentence (exh. 61); (3) a certified prior 

packet for FSB048568, in defendant‟s name, showing a conviction on June 1, 2005, for 

violating section 245, subdivision (a)(1), with a commitment to state prison for two years 

(exh. 62); (4) a certified prior packet for FSB051631, in defendant‟s name, shows a 

conviction for violating Health and Safety Code section 11350, subdivision (a), on 

October 28, 2005, with a two-year sentence (exh. 63); and (5) a certified 969b packet, in 

defendant‟s name, corroborating the May 14, 2009, June 1, 2005, and October 28, 2005, 

convictions (exh. 61).

Without specifying any grounds, defense counsel asserted that the packet was 

insufficient to prove defendant‟s prison priors. The trial court found beyond a reasonable 

doubt that the priors alleged in the information were true, but that the June 1, 2005, and 
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October 28, 2005, convictions were concurrent and therefore constituted one prior prison 

term. Under Matthews, supra, 229 Cal.App.3d 930 and section 969b, sufficient evidence 

was presented to establish defendant‟s prior convictions. Fingerprint and comparison 

testimony implicating defendant was not required. “[T]he trier of fact may „look to the 

entire record of the conviction to determine the substance of a prior foreign conviction.‟ 

[Citations.] „[T]he “entire record of conviction” includes all relevant documents in the 

court file of the prior conviction.‟ [Citation.]” (Matthews, supra, 229 Cal.App.3d at p. 

936.) Section 969b “specifically authorizes proof of the fact that the defendant suffered a 

prior conviction by evidence of certified prison records; . . . Under section 969b, the 

People may satisfy the burden of proving a prior conviction by introducing into evidence 

a certified copy of a prison record.” (Id. at p. 937.)

(6) Whether the trial court erred in finding that defendant could be impeached 

with his prior convictions for violating section 245, subdivision (a)(1) and (a)(2) (People 

v. Ledesma (2006) 39 Cal.4th 641, 731 (Ledesma); People v. Hinton (2006) 37 Cal.4th 

839, 888 (Hinton); People v. Elwell (1988) 206 Cal.App.3d 171, 177). 

Over defendant‟s objection, the trial court granted the prosecution‟s motion in 

limine to impeach defendant with his prior felony convictions for violating section 245, 

subdivision (a)(1) and (2). Defense counsel argued that it would be prejudicial if he was 

impeached with these prior convictions because the jury would be judging him based on 

his past if he testified. The trial court noted that doing so was permissible to some degree 

and that evidence of his prior convictions was not unduly prejudicial because they were 
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recent and not similar to the charged offense, in that the issues were different than in the 

instant case. Defendant ultimately did not testify at trial.

“Defendant has failed to preserve this claim of error. It is well established that the 

denial of a motion to exclude impeachment evidence is not reviewable on appeal if the 

defendant subsequently declines to testify. (See Luce v. United States (1984) 469 U.S. 38 

(Luce ) [denial of in limine motion to preclude impeachment of the defendant with a prior 

conviction is not reviewable on appeal if the defendant did not testify]; People v. Collins

(1986) 42 Cal.3d 378, 383-388 (Collins) [prospectively adopting the Luce rule].)” 

(Ledesma, supra, 39 Cal.4th at p. 731.) 

Furthermore, subject to the trial court‟s discretion under Evidence Code section 

352, Proposition 8 “„authorizes the use of any felony conviction which necessarily 

involves moral turpitude, even if the immoral trait is one other than dishonesty.‟” 

(Hinton, supra, 37 Cal.4th at p. 888.) Defendant‟s convictions for assault with a firearm 

(§ 245, subd. (a)(2)) and assault with a dangerous weapon other than a firearm (§ 245, 

subd. (a)(1)) denote moral turpitude and were therefore admissible for impeachment. 

(Hinton, at p. 888.) Any objection that the priors should have been excluded as too 

similar to the charged crime is likewise without merit. “„While before passage of 

Proposition 8, past offenses similar or identical to the offense on trial were excluded, now 

the rule of exclusion on this ground is no longer inflexible.‟ [Citations.]” (Ibid.)

(7) Whether admission of Betty‟s hearsay statements as prior inconsistent 

statements constituted prejudicial error under People v O’Quinn (1980) 109 Cal.App.3d 

219 (O’Quinn). 
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According to police testimony, Betty made statements to the police inconsistent 

with her trial testimony. Betty told the police that the morning of the burglary, Darrell 

called to tell her that he was sending defendant to pick her up to look at a prospective 

new home. Defendant arrived in a white car at 9:17 a.m. Goldman was driving and 

defendant was a passenger. According to Betty, neither defendant nor Goldman had been 

to Betty‟s home earlier that morning. Contrary to Betty‟s statements to the police, Betty 

testified that the morning of the burglary, defendant was home with Betty, watching the 

children. Around 9:00 a.m., Betty heard a helicopter and then saw Goldman driving like 

crazy in Kadedra‟s white car. When he pulled up to the house, Betty yelled at him for 

being late. The police arrived shortly after that. 

Under Evidence Code section 1235, “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.” “Inconsistency 

in effect, rather than contradiction in express terms, is the test for admitting a witness’ 

prior statement [citation], . . .” (O’Quinn, supra, 109 Cal.App.3d at p. 225.) In the 

instant case, Betty‟s statements made to the police were inconsistent with her trial 

testimony and therefore were admissible under the Evidence Code section 1235 hearsay 

exception.

(8) Whether admission of evidence of only a portion of the jail recordings, instead 

of the entire recordings, constituted prejudicial error under Evidence Code section 356 

and People v. Stallworth (2008) 164 Cal.App.4th 1079 (Stallworth). 
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Before the trial, outside the presence of the jury, the parties and the court 

discussed the prosecution‟s request to introduce evidence of a portion of a recorded jail 

call. Defense counsel objected to the evidence on the grounds of lack of foundation and 

based on the rule of completeness. Defense counsel complained that the call was being 

introduced piecemeal. Defense counsel argued that the defense should be permitted to 

introduce additional statements from the recording; specifically statements made at the 

beginning of the recording in which someone answered the telephone and had a 

conversation with defendant, during which defendant was asked if he was in trouble, and 

defendant said he was not and was innocent. Defense counsel argued the requested 

additional statements should have been included because they gave context to the 

subsequent conversation. The trial court disagreed because the additional statements 

were made by a female to defendant, before defendant‟s conversation with a male. The 

portion of the conversation provided to the jury was solely between defendant and the 

male. The trial court therefore found that the additional statements were not admissible 

under Evidence Code section 356 because the conversation with the female did not give 

context or meaning to defendant‟s conversation with the male.

There was no error in excluding the initial conversation between the female and 

defendant. Under Evidence Code section 356, when part of a conversation is given in 

evidence by one party, “the whole on the same subject may be inquired into by an 

adverse party; . . . and when a . . . conversation . . . is given in evidence, any other . . . 

conversation . . . is necessary to make it understood may also be given in evidence.” 

(Evid. Code, § 356.) Here, the trial court reasonably redacted the initial conversation 
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between defendant and a female. Doing so did not prejudicially distort the subsequent 

conversation between defendant and a male or present a misleading or distorted version 

of the relevant events. The redaction also did not negatively impact defendant‟s 

credibility. (See Stallworth, supra, 164 Cal.App.4th at p. 1098.)

(9) Whether the trial court prejudicially erred in not giving CALCRIM No. 225, 

when the jury was instructed with CALCRIM Nos. 224 and 252. 

CALCRIM No. 224 instructed the jury on finding guilt based on circumstantial 

evidence. CALCRIM No. 252 instructed on the need for the jury to find proof of the 

union, or joint operation, of act and wrongful intent. The instruction also specified 

whether the charged crimes required a finding of specific or general intent. CALCRIM 

No. 225, which was not given to the jury, instructs on reliance on circumstantial evidence 

to prove intent. The bench notes for CALCRIM No. 225 state: “The court has a sua 

sponte duty to instruct on how to evaluate circumstantial evidence if the prosecution 

substantially relies on circumstantial evidence to establish the element of a specific intent 

or a mental state. [Citation.] [¶] Give this instruction when the defendant‟s intent or 

mental state is the only element of the offense that rests substantially or entirely on 

circumstantial evidence. If other elements of the offense also rest substantially or entirely 

on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224, 

Circumstantial Evidence: Sufficiency of Evidence. [Citations.]” 

Defendant was charged with first degree burglary of residence while a person not 

an accomplice was present. (§§ 459, 667.5, subd. (c).) The elements of the crime of 

burglary are (1) unlawfully entering (2) a residence (3) with intent to commit a crime, 
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such as larceny or theft. (§ 459.) Here, CALCRIM No. 225 was inappropriate because 

defendant‟s intent or mental state was not the only element of the offense that rested 

substantially or entirely on circumstantial evidence. Other elements of the offense, such 

as identification of defendant and Goldman as the perpetrators, also rested substantially 

or entirely on circumstantial evidence. Defendant argued there was insufficient evidence 

that he was the perpetrator, because when Acosta observed the perpetrator, it was dark, 

Acosta only saw a glimpse of him through a crack in the door, Acosta only saw the 

perpetrator for a couple seconds, Acosta was under stress, and his description of the 

perpetrator was not detailed. Defense counsel asserted that Acosta had no idea of who 

broke into his home and the circumstantial evidence was insufficient to establish that 

defendant was the perpetrator.

(10) Whether the trial court erroneously denied defendant‟s motion to strike his 

Three Strikes prior conviction under People v. Wallace (2004) 33 Cal.4th 738, 753-754 

(Wallace). 

Defendant moved to have his prior strike conviction dismissed pursuant to section 

1385. (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497.) The trial court 

denied defendant‟s motion. The court concluded defendant was “the perfect example of 

why we have the Three Strikes law,” because he had a juvenile felony finding for 

possession for sale; five violations of parole; two felony priors, including the felony 

conviction strike for violating sections 245, subdivision (a)(2), and 12021; and two 

misdemeanor priors. The court concluded defendant‟s criminal history reflected an 

unwillingness to follow the law. There was no abuse of discretion in denying defendant‟s 
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Romero motion. The court provided a proper basis for not dismissing defendant‟s priorstrike-conviction allegation. (Wallace, supra, 33 Cal.4th at p. 754.)

We have concluded our independent review of the record and find no arguable 

issues.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.