People v. Rose CA2/2 ( 2015 )

Filed 12/1/15 P. v. Rose CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B254912
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA370760)
v.
CLEVELAND ZACHARY ROSE et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County.
Robert J. Perry, Judge. As to Rose and Hicks the judgments are affirmed as modified.
As to Brown the judgment is reversed as to Count 1.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for
Defendant and Appellant Cleveland Zachary Rose.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and
Appellant Kevin Rondrae Hicks.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant
and Appellant Charles Deon Brown.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In Count 1 of the fifth amended information filed by the Los Angeles County
District Attorney’s Office, Cleveland Zachary Rose (Rose), Kevin Rondrae Hicks (Hicks)
and Charles Deon Brown (Brown) (collectively defendants) were charged with
conspiracy to commit kidnapping for robbery (Pen. Code, §§ 182, subd. (a)(1), 209,
subd. (a))1 and conspiracy to commit second degree robbery (§§ 182, subd. (a)(1), 211,
subd. (a)). In Counts 2 and 3, respectively, Rose was charged with possession of a
firearm by a felon (former § 12022, subd. (a)(1)) and unlawful possession of ammunition
by a felon (former § 12316, subd. (b)(1)). In Count 4, Brown was charged with unlawful
possession of ammunition by a felon (former § 12316, subd. (b)(1)). For all defendants,
as to Count 1, it was alleged that a principal was armed with a firearm (former § 12022,
subd. (a)(1)).2
The defendants were convicted on all counts.3 The firearm allegation was found
true.
Brown argues the trial court erred when it denied the motion to sever his trial;
when it refused to suppress evidence of the phone number he provided during booking;
when it refused to exclude charts and graphs prepared by expert Michael Easter (Easter)
even though the prosecution violated discovery rules by not turning over Easter’s charts
and graphs until five days before he testified; when it instructed the jury regarding late
discovery pursuant to CALCRIM No. 306; and when it permitted evidence of weapons,
weapon parts, ammunition, a scanner, walkie-talkies and a brown leather holster. Hicks
argues the trial court erred when it denied the motion to sever his trial, when it allowed
evidence of a federal conviction based on a plea agreement he signed in 1996 involving a
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
The operative charging document, the fifth amended information, contained other
special allegations. Because this appeal does not pertain to those other special
allegations, we do not list them here.
3
In 2012, Brown entered a plea of no contest to Count 4. His appeal pertains to
Count 1 only.
2
plan to rob a bank, and when it denied a defense request to strike the firearm allegation.
Rose contends the trial court abused its discretion when it refused to suppress monitoring
data obtained without a warrant from Global Positioning System (GPS) tracking devices
placed on two vehicles that he used. He additionally posits that the trial court erred when
it allowed evidence of a prior federal conviction based on a plea agreement he signed in
1998 involving a plan to rob a bank. Each of the defendants joins the arguments of the
others insofar as they derive a benefit.
Brown’s conviction on Count 1 is reversed because the trial court abused its
discretion and otherwise violated Brown’s right to due process when it denied the motion
to sever his trial. As to Rose and Hicks, the firearm enhancements pursuant to former
section 12022, subd. (a)(1) are stricken because there was insufficient evidence that a
principal was armed during the commission of the charged conspiracy. In all other
respects, the judgments are affirmed. Upon remand, it is permissible for the Los Angeles
County District Attorney to retry Brown on Count 1.
The People ask us to amend Rose’s judgment and abstract of judgment to impose a
$40 assessment pursuant to section 1465.8, subdivision (a)(1) on Count 2 and Count 3,
for a total of $80, and a $30 assessment pursuant to Government Code section 70373,
subdivision (a)(1) on Count 2 and Count 3, for a total of $60. Because the trial court
already imposed the correct assessments, we need not take action.
FACTS
Prosecution Case
Rose’s Relationship with Cornelius Hopes
In the mid-2000’s, Rose worked at a door factory with a man named Cornelius
Hopes (Hopes). After the company closed, they remained in contact. At some point,
Hopes learned from Rose that he had been involved in criminal activities such as robbing
banks.4
4
This evidence was limited to Rose.
3
Rose’s Cashier’s Check Scheme
In 2009, Rose called Hopes and they spoke about the poor state of their finances.
During that colloquy, Rose asked Hopes to cash a cashier’s check and said he could keep
a third of the proceeds. A few weeks later, Rose and a woman met Hopes outside a Wells
Fargo Bank and gave Hopes a $7,5005 check he knew was stolen or forged.6 He
deposited the check into his account. After a 10-day hold, when the money was finally
available, he withdrew either $3,500 or $5,000 and gave it to one of Rose’s female
friends.
The FBI’s Contact With Hopes
In early January 2010, Special Agent Conley and his partner contacted Hopes at
his home and asked him about the cashier’s check he had cashed. Hopes said he had
done it for a friend. When pressed, he said the source of the check was Rose. At the
behest of the special agents, Hopes called Rose at telephone number (323) 347-52357 and
put the call on speaker so the special agents could listen. Hopes said the bank claimed
the cashier’s check was fraudulent, and he wanted to be reimbursed for his losses. Rose
said he would not give Hopes any reimbursement. Hopes went on to say that he had been
contacted by the FBI, and they asked him about the check he cashed at Wells Fargo
Bank. He said the FBI did not believe his story that he got the check from work. Rose
told Hopes to stick with his story.
5
Hopes testified that the amount was $5,000, and later testified that it was $7,500
after being shown the check that he negotiated.
6
Special Agent Patrick Conley of the Federal Bureau of Investigation (FBI)
testified that the cashier’s check given to Hopes came from a bank that was robbed in
El Monte on December 10, 2009.
All references to special agents are to special agents of the FBI.
7
The number (323) 347-5235 was assigned to a prepaid phone that was used by
Rose. On August 13, 2009, an account was set up for that number under the name
“Jhonte Moore.” On March 8, 2010, the account was switched to a subscriber with the
name “Anjane Lewis.”
4
At some point, Hopes told the special agents that Rose had asked him to help rob a
bank near Artesia.
Inquiries at the Department of Motor Vehicles (DMV) Regarding Paula Williams
Paula Williams (Williams) was a manager for a Bank of America banking center
at 1450 West Redondo Boulevard in Gardena.
Isela Saenz, a DMV staff service analyst, determined that on January 26, 2010,
“W.M.I. Insurance” accessed the license plate number for Williams’s car. On
January 29, 2010, a DMV employee, who was not identified, accessed information for
the same license plate on two occasions, but did not perform any actions. The employee
would have been able to access Williams’s name and address. Williams never heard of
“W.M.I. Insurance.”
January 27, 2010 Phone Call
On January 27, 2010, at 9:00 a.m., there was a call from Rose’s phone to
(323) 684-8625, the number assigned to a prepaid phone that was associated with
Brown.8
Hopes’s Interactions With Rose; the First of Two GPS Trackers
Hopes met with Rose on January 27, 2010, at a Starbucks. Prior to the meeting,
FBI agents gave Hopes a keychain recording device to record his conversation with Rose.
During the meeting, Rose said that he needed the license plate numbers for bank
personnel, and he wanted to rob a bank before February 14, 2010. He said he had “two
that’s on deck,” which Hopes understood from previous conversations to mean Rose was
looking at two different banks. Rose asked Hopes to watch bank employees to find out
their routines because Rose planned to go into the bank with the first employee and have
him or her open the vault and “clean it out.”
In the meantime, while Rose was occupied, special agents placed a GPS tracker on
his car, a Chrysler 300 (Chrysler).
8
The billing account name for the phone was “Bobby Jerkos.” The billing address
was in Newport Beach.
5
On February 1, 2010, Hopes called Rose. Hopes said he had a contact at the DMV
who could get the license plate information that Rose wanted. Rose said he had already
obtained the information. But he also said for Hopes to keep his contact “on deck.”
Hopes said he needed to do something to make money, and Rose told him to “deal with
that one” by watching the Wells Fargo Bank where he had deposited the cashier’s check.
On February 11, 2010, Hopes called Rose and provided false information about
his Wells Fargo Bank. Rose instructed Hopes to watch the bank and identify the person
who opened it up in the morning
On February 19, 2010, Rose asked Hopes to meet him for lunch. Hopes was
unable to contact Special Agent Conley and inform him about the meeting, so Hopes did
not have a recording device. At a TGI Friday’s restaurant in the Cerritos Town Center,
Hopes joined Rose and a woman. According to Rose, he had found a better bank to rob
in Mission Viejo, and he and his crew had been watching the bank’s president, who was a
Black female. He also said that he planned on finding out where the bank’s president
lived, when she left home in the morning, and when she left work at night.
After lunch, Hopes told Special Agent Conley that Rose and his crew had targeted
a Bank of America branch, identified the bank manager as a Black female, and intended
to kidnap her.
On March 4, 2010, Hopes met Rose at the Cerritos Town Center and recorded the
conversation. Rose said he wanted the license plate number for the car driven by the
manager of the Wells Fargo Bank where Hopes had deposited the cashier’s check. Hopes
gave appellant Rose false information about bank employees. Eventually the
conversation pivoted to a bank in Mission Viejo, and Rose talked about kidnapping the
bank manager, going into the bank with her, and then going into the vault. Rose believed
the bank manager would cooperate because she would be fearful of losing her life.9
9
Hopes testified that he asked Rose how he used to rob banks before they met.
Prompted by Hicks’ counsel, the trial court stated that “[e]arlier incidents are limited only
to Mr. Rose.”
6
In recorded telephone conversations on March 17, 2010, and March 26, 2010,
Rose said he was waiting for information. Hopes inferred Rose was talking about license
plate information from his contact at the DMV. On April 2, 2010, Rose indicated that he
was still waiting. On April 14, 2010, Rose asked Hopes to take a drive to show him
something, which Hopes understood to mean Rose wanted to show him “the location of a
situation he was working on.” They never spoke again.10
Rose’s Girlfriend; Surveillance of Rose; Tracking of Rose’s Phone and the
Chrysler
Guermena “Cindy” Fuller (Fuller) was Rose’s girlfriend, and she was pregnant
with his child in January 2010.11 At the time, she was living in an apartment at 511 East
99th Street in Inglewood. Rose stayed with her “sometimes,” maybe two or three times a
week. She allowed him to use her car, which was a blue BMW (BMW).
On January 28 and 29, 2010, and on February 1, 2010, cell phone activity and the
GPS tracker on the Chrysler placed Rose’s car and cell phone near the Gardena Bank of
America. In the evening of February 2, 2010, his cell phone registered activity at a cell
tower near Williams’s home.
In the morning of February 3, 2010, Special Agent Jaime Barajas and his team
observed Rose drive the Chrysler out of the parking lot at Fuller’s apartment. Special
Agent Barajas followed. While accompanied by someone driving Fuller’s BMW, Rose
drove to an auto body shop located in Los Angeles. They arrived at the auto body shop at
about 10:25 a.m., and then departed in Fuller’s BMW at around 12:09 p.m.
Subsequently, Special Agent Barajas observed Rose in a Dodge Caliber (Dodge) that he
picked up from a rental agency.12
10
Hopes was paid $4,000 by the FBI for being a confidential informant.
11
He had previously fathered a child with Shupree Jenkins, who Fuller believed to
be living in Harbor City.
12
In testimony, there are references to a Dodge Caliber and a Dodge Crossover
sports utility vehicle. At one point a witness testified that the “Caliber” was the model of
7
Pursuant to an FBI request, Gardena Police Officer Luis Contreras and his team
watched the Gardena Bank of America. On February 3, 2010, at about 8:00 a.m., the
BMW parked across the street at a post office. The driver, a Black male, held a
cell phone to his ear. After about five minutes, the driver departed from the area. People
in business attire began entering the bank at that time.
On February 3, 2010, Rose’s cell phone was used to make calls near the Gardena
Bank of America. On February 4, 2010, calls were made near Williams’s home.
Over the days Rose was being watched, he was observed at Fuller’s apartment
complex, and also entering an apartment complex at 26110 President Avenue in Harbor
City.
A call from Rose’s phone was made to Hicks’s phone at about 11:19 a.m. on
March 9, 2010. Hicks’s phone, which had the assigned number (323) 333-4756, was
located in Laguna Hills at the time.
Traffic Stop and Searches Near the Farmers & Merchants Bank
On March 9, 2010, at about 1:20 p.m., Orange County Deputy Sheriff Emad Mitry
noticed a black Dodge Durango (Durango) with a broken brake light and Carmax paper
license plates. Hicks was driving and Brown was the only passenger. They were east of
Paseo de Valencia on El Toro Road in Laguna Hills. Deputy Mitry activated his patrol
car’s red light. Hicks proceeded down El Toro Road for about a half of a mile and then
turned onto Swartz Road before he finally came to a stop on a dead end street leading to a
commercial complex. The car was covered with what looked like dust that had
accumulated for a week. There were wrappers on the floorboards, and there were items
in the back
When questioned why he had paper license plates, Hicks said he took off the metal
plates because he planned to show the vehicle to a prospective buyer. According to
Hicks, the prospective buyer had requested that the metal plates be taken off. Hicks
the Dodge Crossover, and then proceeded to refer to the vehicle as a Dodge “Crossover
Caliber.”
8
claimed to have met the prospective buyer earlier that same day. However, he could not
recall the prospective buyer’s name or telephone number, and did not recall where they
met.
Deputy Mitry asked Hicks why he was in the area. He said he was on his way
home from San Diego and stopped to get something to eat.13
After Hicks consented to a search of his vehicle, Deputy Mitry and another deputy
sheriff looked in the back and discovered metal license plates matching the vehicle’s
registration. In the center console, Deputy Mitry found a “nylon cap or mask” with “eye
cutouts on it.”
Rose was sitting in a Chevy Suburban parked at a fast food restaurant 100 feet
away from where the traffic stop occurred. Orange County Deputy Sheriff Thomas
Graham asked Rose what he was doing in the area, and he said he was waiting for his two
friends who had been pulled over. Rose indicated that he was waiting for his friends in
the Durango. When asked how he knew them, he said they played football together
during their school years. Deputy Graham searched Rose and found a piece of paper in
his wallet that had the address for Farmers & Merchants Bank, 24300 Paseo de Valencia,
Laguna Hills. The bank was about a mile away from the traffic stop.
Inside the Chevy Suburban, Deputy Graham found a detachable black pistol grip,
two beanies, a pair of gloves, two nylon “masks” or “skullcaps,” a cell phone, and some
marijuana.
At some point, after talking to Rose, Deputy Mitry asked Brown if he knew Rose.
Brown said he did not.
Brian Heaney, a sergeant in the Orange County Sheriff’s Department, observed
the traffic stop as it progressed. After Hicks and Brown drove away in the Durango,
Sergeant Heaney and six team members of a plain clothes surveillance team followed the
Durango as it drove to Los Angeles. The team lost sight of the Durango after it exited the
110 Freeway at Vernon. During the drive to Los Angeles, Hicks drove in a manner
13
On March 9, 2010, no calls were made on Hicks’s cell phone from the San Diego
area.
9
consistent with countersurveillance designed to expose anyone who might be following
him.
The Second GPS Tracker
On March 24, 2010, an FBI agent placed a GPS tracker on the BMW. On April 1,
2010, and April 13, 2010, GPS tracking established that the BMW was in the area of
Farmers & Merchants Bank in Laguna Hills.
The Events of April 13, 2010
Faye Give Kay (Give Kay) worked as the bank manager for Farmers & Merchants
Bank in Laguna Hills.
On April 13, 2010, at around 5:00 p.m., in Irvine, Sergeant Heaney was parked
near a freeway exit. He saw Give Kay exit the freeway, and then saw Rose exit in the
BMW about three cars behind Give Kay. Sergeant Heaney followed them as Rose
followed Give Kay until Rose turned on Hartford. At that point, Sergeant Heaney
proceeded to a parking lot near Jeffrey and Walnut in Irvine. Soon thereafter, he
observed Rose in a commercial parking lot across the street. Brown arrived in a Nissan
Maxima (Nissan), and Hicks arrived in a silver Mercedes SUV (Mercedes). Rose got
into the front passenger seat of the Mercedes, and Brown got into the back seat. Later,
the men drove away in their respective vehicles.
Orange County Sheriff’s Department Investigator Tony Benfield went to
Give Kay’s house on Montgomery in Irvine and saw her pull into her garage. Within
seconds of Give Kay’s arrival, a Black male in the BMW drove slowly down Heritage
past Montgomery while looking at her open garage. A few seconds after that, a Black
male drove slowly down Montgomery in the Nissan. The driver was holding a phone to
his ear. When the driver neared the garage, he looked into it. The Nissan turned around
in a parking area and returned, once again slowly driving by the open garage. Seconds
later, Hicks slowly drove by Montgomery in the Mercedes and looked toward the garage,
which was closed. He returned about five minutes later with Rose in the passenger seat.
There was a third occupant in the backseat, but Investigator Benfield did not see a face.
10
After what transpired on April 13, 2010, Give Kay moved out of her home. The
FBI placed an agent in Give Kay’s home to stay in her home and drive her car back and
forth to the bank.
Surveillance in Late April
On April 21, 2010, at about 6:00 a.m., Sergeant Heaney was at a gas station at the
corner of Walnut and Jeffrey in Irvine. Brown drove by in the Nissan. Later that
morning, Brown stopped at the gas station, and then drove northbound on the I-5
Freeway.
The next day, April 22, 2010, at the same gas station at about 6:00 a.m., Sergeant
Heaney saw Rose driving the BMW on Walnut. A few minutes later, Sergeant Heaney
drove into Give Kay’s neighborhood and saw Rose parked near her house on Springfield,
a small street that was opposite Montgomery. Eventually, the special agent posing as
Give Kay drove Give Kay’s vehicle out of the neighborhood. About 20 minutes later,
Rose drove away.
On April 23, 2010, Special Agent Ruben Iglesias was watching and following
Rose. Rose met with Brown at the corner of East Hyde Park Boulevard and Marlborough
in Inglewood. After about seven to 10 minutes, Brown got into the Nissan and departed.
A day later, Special Agent James Friedman observed Rose drive the Dodge into
the residential neighborhood near Give Kay’s house and park from 6:26 a.m. to 7:51 a.m.
Rose remained inside his vehicle. It appeared he was making calls on his cell phone.
After he drove from the area, Rose went to Harbor City.
Fuller’s Request that Rose Remove a Handgun from Her Apartment
At some point in late April 2010, Fuller saw Rose with a handgun in her
apartment. She asked him to remove it.
Rose’s Arrest and Interview; Search of Residences Associated with Rose
On April 28, 2010, Rose was arrested in Harbor City. He possessed two
cell phones. During booking, he listed his address as 511 East 99th Street in Inglewood,
11
his cell phone number as (323) 347-5236, and his emergency contact as Fuller at (310)
946-8456.14
During an interview with law enforcement agents, Rose said he lived in Harbor
City. He denied knowing or living at a residence on 99th Street in Inglewood, having
been to Orange County in the recent past, going to Farmers & Merchants Bank or
following Give Kay to her home.
In an apartment at 26110 President Avenue in San Pedro, law enforcement officers
discovered a brown leather holster in a bedroom closet.
In Fuller’s apartment in Inglewood, they discovered a scanner, a charger for a
scanner, and four walkie-talkies in a shoebox in the master bedroom. The items did not
belong to Fuller. A Smith and Wesson blue steel .357 revolver with wooden grips, a
.44 Magnum, and a box of ammunition were discovered inside a small backpack in the
closet in the master bedroom. The .44 Magnum was loaded with six live .357 rounds.
The box of ammunition was stamped for .357 rounds. One of the guns had a flash
suppressor.
Hicks’s Arrest
Hicks was arrested the same day as Rose.
During his interview, Hicks admitted knowing Rose but indicated they had not
seen each other in a while. Other than passing through Orange County to sell his vehicle
in San Diego, Hicks denied being in Orange County. When asked how much he was
selling his vehicle for, he paused and then said $10,000. He said he went to San Diego
with Brown. Regarding the traffic stop on March 9, 2010, Hicks claimed to have been
unaware Rose was parked nearby. Hicks denied being in Orange County with Rose and
Brown on April 13, 2010. But when he was shown surveillance photographs, he initially
said they had been “hanging out.” Later, he said they went to Orange County because
14
This evidence was limited to Rose.
12
Rose was “having an issue with a girlfriend.” The interviewer asked Hicks about
following Give Kay home from work. He did not reply.15
Brown’s Arrest; Search of His Home; His Interview
Following a traffic stop, Brown was arrested on April 28, 2010. During booking,
he was asked, inter alia, for his address and phone number. He listed as his address
642 Hyde Park Boulevard, Inglewood, and his telephone number as (323) 684-8625.
When law enforcement officers searched Brown’s home on Hyde Park Boulevard,
they recovered 41 to 44 rounds of .45 caliber ammunition, four 12-gauge shotgun shells,
and an empty magazine for a semi-automatic handgun. They also discovered Sprint bills
for (323) 864-6960 and (323) 864-7579. They found no bills for (323) 864-8625.
During an interview, Brown was asked if he saw anyone he knew at the jail. He
said he had seen Hicks, an old friend. Brown maintained he had not otherwise seen
Hicks in a while. After being told the police had seen him with Hicks recently, he said,
“Oh, yes, I was with him last night watching the Lakers game.” The interviewer asked if
Brown had been to Orange County. He looked “shocked” and denied being there. Once
he was confronted with the March 9, 2010, traffic stop in Orange County, he claimed to
have been traveling through Orange County from San Diego, where he saw friends of
Hicks. The interviewer told Brown that Rose was near the traffic stop. Brown said
maybe Hicks was going to meet with Rose, but Brown did not know Rose was present.16
Defense Case
Hicks’s fiancé, Natashia Gardener, testified she lived with Hicks and their three
children in Inglewood. In April 2010, she owned the Durango and planned to sell it.
Hicks and she were registered owners of the Mercedes. She used nylon stocking caps for
her hair, and she kept some of them in the Durango. Hicks’s aunt and cousin testified
that Hicks went to school in Orange County, and he had family in Orange County,
15
Evidence of Hicks’ interview was admitted only against him.
16
The trial court limited this evidence to Brown.
13
including his father, who lived in Irvine. Hicks went to Orange County “quite a bit” for
family events, football games and spontaneous barbecues.
DISCUSSION
I. Motions to Sever by Brown and Hicks.
In California, there is a preference for joint trials against codefendants charged
with common crimes involving common events and victims. (§ 1098; People v. Carasi
(2008) 44 Cal.4th 1263, 1296 (Carasi); People v. Hardy (1992) 2 Cal.4th 86, 167.)
Notably, section 1098 provides: “When two or more defendants are jointly charged with
any public offense, whether felony or misdemeanor, they must be tried jointly, unless the
court order separate trials.”
“A party seeking severance must ‘clearly establish that there is a substantial
danger of prejudice requiring that the charges be separately tried.’ [Citation.]” (People
v. Davis (1995) 10 Cal.4th 463, 508.) “The grounds which may justify a severance
[include] . . . : (1) Where there is an extrajudicial statement made by one defendant
which incriminates another defendant and which cannot adequately be edited to excise
the portions incriminating the latter; (2) where there may be prejudicial association with
codefendants; (3) where there may be likely confusion from evidence on multiple counts;
(4) where there may be conflicting defenses; and (5) where there is a possibility that in a
separate trial the codefendant may give exonerating testimony. [Citation.]” (People v.
Boyde (1988) 46 Cal.3d 212, 232.)
An appellate court reviews the denial of a motion to sever for an abuse of
discretion. (Carasi, supra, 44 Cal.4th at p. 1296.) Whether a trial court abused its
discretion is judged on the facts as they appeared at the time the trial court ruled on the
motion. (Ibid.) “Even if a trial court abuses its discretion in failing to grant severance,
reversal is required only upon a showing that, to a reasonable probability, the defendant
would have received a more favorable result in a separate trial. [Citation.]” (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 41.)
In the absence of trial court error, reversal is nonetheless required if joinder caused
gross unfairness that violated a defendant’s right to due process. (People v. Bean (1988)
14
46 Cal.3d 919, 940.) Constitutional issues are subject to de novo review. (People v.
Cromer (2001) 24 Cal.4th 889, 894.)
According to the Supreme Court, due process requires reversal when joinder
results in substantial and injurious effect or influence in determining the jury’s verdict.
(United States v. Lane (1986) 474 U.S. 438, 446; People v. Albarran (2007) 149
Cal.App.4th 214, 231.) “‘[I]f one cannot say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole, that the judgment was
not substantially swayed by the error, it is impossible to conclude that substantial rights
were not affected. The inquiry cannot be merely whether there was enough to support the
result, apart from the phase affected by the error. It is rather, even so, whether the error
itself had substantial influence. If so, or if one is left in grave doubt, the conviction
cannot stand.’ [Citation.]” (Ibid.)
Brown contends that his conviction on Count 1 must be reversed because the trial
court erred when it denied his motion to sever his trial from that of Rose and Hicks. He
relies on two theories: a prejudicial abuse of discretion, and a denial of due process.
Hicks advances the same arguments as Brown.
We turn to the issues below.
1. Relevant Proceedings.
In October 2011, the prosecution filed a motion to admit evidence that Rose,
Hicks and Brown participated in prior conspiracies to rob banks to show: the intent of
Rose, Hicks and Brown in watching the targeted bank and the home of the bank manager
was to gather intelligence to facilitate the commission of bank robbery; the intent of
Rose, Hicks and Brown in possessing guns, masks, stockings, gloves, police scanners and
walkie-talkies was to commit bank robbery; and they had motive to kidnap the bank
manager from her home at night and force her to open the bank vault in the morning
instead of waiting for her to arrive at the bank. The prosecutor planned to prove Rose’s
prior based on the allocution he signed in connection with a 1998 plea agreement. To
prove Hicks and Brown participated in a conspiracy to commit a bank robbery, the
15
prosecutor planned to call one of their purported coconspirators, Jeffrey Deshawn
Halthon (Halthon).
Months later, the trial court entertained the motion.
The trial court stated: “You have evidence in this case [of] . . . Rose following the
bank manager for the Farmers & Merchants Bank to her home. He’s alleged to have
driven by the manager’s residence. Brown is alleged to have driven by. Hicks then
allegedly drives by. They all meet together in a parking lot, all get into Hicks’ Mercedes
and then drive by the manager’s residence again. [¶] That evidence, coupled with the
C.I. information about Rose’s statement to him, certainly raises questions as to their
intent[,] assuming those acts are proven by the witnesses at trial. And I would think that
under [People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt)], that the fact that Hicks had been
engaged or had engaged in 1996 in prior robberies with others, and that those robberies
involve nylons, handguns, things like that, and that Rose had conspired with others as
well to do bank robberies would be helpful to the jury and relevant to the issue of their
intent when they’re driving by the bank manager’s house.”
The trial court said its inclination was to allow the evidence. Continuing on, the
trial court stated: “I mean, I think Rose’s statement, certainly the jury would be
instructed that it only applies to Mr. Rose. If anything, it could be helpful to the other
defendants because he was conspiring with persons other than the defendants who are on
trial with him, and I suppose there’s an argument to be made that there’s no evidence that
they . . . had anything to do with the 1996 activity. . . . [¶] As to Mr. Hicks, if they have
Halthon, I would think that I would allow him to testify.” The trial court added: “I
understand it’s prejudicial and remote.”
The case was called for a jury trial on July 31, 2012. On August 2, 2012, the trial
court declared a mistrial as to Rose because his attorney suffered a medical emergency.
On the heels of that ruling, Brown and Hicks requested a mistrial, which was granted.
A year later, on August 6, 2013, the matter was called for trial again. Because his
attorney was ill, the trial court declared a mistrial for Rose. Trial proceeded against
Hicks and Brown. The jury did not hear evidence of the prior convictions suffered by
16
Rose and Hicks,17 and it was unable to reach a unanimous verdict. As to Hicks, the jury
was split with 2 votes guilty, 10 votes not guilty for conspiracy to kidnap for robbery, and
1 vote guilty and 11 votes not guilty for conspiracy to commit robbery. As for Brown,
the jury was split 3 votes guilty, 9 votes not guilty for conspiracy to kidnap for robbery,
and 2 votes guilty and 10 votes not guilty for conspiracy to commit robbery. The trial
court declared a mistrial for both Hicks and Brown.
Hicks moved to dismiss the case. The trial court responded as follows: “I’m
inclined not to grant the motion. I don’t think the People got a fair trial in the sense that
Mr. Rose was not part of the case[,] and I think that it would have been a different case[,]
and I think it will be a different case. I think that the . . . evidence, frankly, is there. I
think it’s the question of presenting it. So I’m not inclined to dismiss just because of a
jury [voting] 10 to 2 and 11 to 1 for acquittal.” Later, the trial court stated: “In the
court’s view, . . . the People . . . were severely hampered by the absence of the lead
defendant, Mr. Rose, and I think it’s going to be a different case the [next] time around.”
Two weeks before the third trial, the trial court set forth its perception of the case
thusly: “The inescapable fact in this case is that these three defendants were acting
extraordinarily suspiciously in the area of the bank manager’s home down in Orange
County, which was 60 or 70 miles from their home, and there is no explanation, other
than the explanation that has been given through the testimony of [Hopes] and the fact
that some of these folks have prior convictions for bank robbery. It’s pretty obvious to
the court. [¶] Now, the jury didn’t like the case, the last jury. I’m thinking it’s a
different case with Mr. Rose in the mix. The jury is going to hear about his—he’s a
convicted felon, he has a prior . . . felony. He has a possession of a firearm, he has
possession of ammunition. Perhaps that will tip the jurors.”
17
Prior to the third trial, the trial court stated: “I . . . granted the [Evidence Code,
section 1101, subdivision (b)] motion as to [Halthon], . . . who [would] have provided
evidence against Hicks and Brown.” The inference is that the prosecutor did not call
Halthon to testify at the second trial.
17
On January 21, 2014, the case was called for trial. Hicks reiterated all the
Evidence Code section 402 motions that he made prior to the first mistrial, and also prior
to the August 2013 trial. The trial court stated: “I think that all prior motions are deemed
to have been remade[,] and the rulings remade.” In addition, the trial court stated that all
objections would be deemed joined by Rose, Hicks and Brown unless otherwise stated.
The trial court ruled that Rose’s plea in federal court to an attempted bank robbery
would be admissible to show intent, i.e., “for the jury to consider as to why . . . Rose
. . . would have traveled 70 or plus miles early in the morning to drive by the residence of
the bank manager[.]” The prosecutor indicated that when Rose entered the plea, he made
a statement in the allocution in which he admitted to conspiring to commit bank robbery
with three other men. Further, Rose stated that he had instructed the others on how to
carry out the bank robberies, and had planned on providing them with clothes, walkie-
talkies, police scanners and firearms. The trial court stated: “And I’m going to instruct
the jury [that] that’s admissible only as it relates to Mr. Rose[,] because it’s a statement
against his interest.”
Subsequently, Brown moved for a separate trial, and Hicks joined in the motion.
In his motion, Brown argued that the prosecutor intended to present the prior convictions
to prove that Hicks and Rose previously conspired to commit bank robberies, and Brown
would be prejudiced in a joint trial because he could not cross-examine his codefendants.
In addition, Brown argued that there was a risk that the jury would find him guilty
because of his association with Hicks and Rose.
When the parties convened, the trial court raised the motion to sever and stated:
“I’m disinclined to grant it. I think, first of all, it’s untimely, but more importantly, this is
a conspiracy case. And I think the evidence would be duplicative, and I see no reason to
have a separate trial.”
After jury selection, the trial court and parties discussed various issues. At one
point, they engaged in the following colloquy:
“[DEFENSE COUNSEL]: ‘If you honor is allowing [the prosecutor] to simply
present those [prior convictions], limited to the defendants that were involved in [those]
18
prior bank robber[ies], why is there a need to make reference to other people involved if
it just goes to this specific intent?
“[THE TRIAL COURT]: No, because it shows these defendants did not act alone
on the prior occasion. In Mr. Hicks’s situation or Mr. Rose’s situation—you take either
one—they were part of a group. And in this case, they are alleged to be part of a group
that was going forward with a nefarious plan. That’s the situation. I think it all relates to
intent. And the fact that they are willing to associate themselves with someone else, to
me, suggests that they pose a greater danger to the public good. That’s why we have
conspiracy.
“[DEFENSE COUNSEL]: But to say affirmatively that these other two
individuals had the same intent as, say, Mr. Rose in that robbery or Mr. Hicks in his
incident, there is that risk that the jury would infer in this case then that Mr. Brown must
have the same intent as these two gentlemen because of his association with them. And
that goes against the court’s instruction to evaluate the evidence as it pertains to each
defendant.
“[THE TRIAL COURT]: “I’m going to make a limiting instruction. And [the
prosecutor] is going to make it clear these prior convictions are related to the particular
individual, and the other defendants are not involved in that particular prior conviction or
those activities.”
At trial, the jury heard the evidence below:
In 1998, Rose pleaded guilty to using or carrying a firearm during a crime of
violence in violation of title 18 United States Code section 924(c). The prosecutor read a
redacted version of the statement of facts set forth in the written plea agreement, stating:
“Beginning on or before December 1995 and continuing until approximately December
1996, . . . Rose][] and Trayvonne Mitchell [(Mitchell)], . . . Shaun Sloan [(Sloan)], and
Derrick Lamont Brown, no relation to defendant Brown at all[] [¶] . . . [¶]
. . . conspired and agreed [they] would select the banks to be robbed, observe or case the
banks to be robbed, recruit others to go inside the banks and commit the robberies,
provide those persons with the necessary equipment, such as clothes, walkie-talkies,
19
police scanners, and firearms, and instruct those persons on how to carry out the bank
robberies. [They] agreed to divide the proceeds from the bank robberies among
[themselves] and the others who participated in the robberies.
“Specifically, [Rose] participated in the planning and organization of the
October 7, 1996[,] attempted robbery of the Bank of America at 1053 South Crenshaw in
Los Angeles, California. Sloan, [Mitchell] and Brent Reed [(Reed)] . . . cased the bank in
preparation for the robbery. Several days prior to the robbery, [Rose], . . . Mitchell and
Reed met with . . . [McCreary] and Kenneth Deandre Rodgers (Rodgers) at [Rose’s]
apartment . . . to discuss and plan the robbery.
“On or about October 7, 1996, [Rose] met with Sloan, Mitchell, McCreary,
Rodgers and Reed at Sloan’s mother’s house . . . in the morning for the purpose of
planning an armed takeover robbery of the Bank of America on South Crenshaw.
. . . Rose [was] present when Sloan and Mitchell distributed dark clothes, masks, guns,
duct tape, walkie-talkies and police scanners to Reed, McCreary [and] Rodgers.
. . . Rose[] drove . . . Reed, McCreary and Rodgers to the vicinity of the bank early that
same morning. Reed, McCreary and Rodgers switched from [Rose’s] car to Mitchell’s
car and Mitchell drove them to the bank. The plan previously discussed provided that
[Rose], Mitchell and Sloan would be outside the bank in separate cars to act as get-away
drivers and to communicate with the robbers inside the bank through walkie-talkies.
“At approximately 8:30 a.m., Reed, McCreary and Rodgers forced their way into
the Bank of America . . . and demanded access to the vault. Before the bank employees
were able to open the vault, Reed, McCreary and Rodgers received information through
the walkie-talkie that the police were in the area and they left the bank.”
The trial court instructed the jury that Rose’s plea agreement was not to be
considered as evidence against Brown or Hicks, and could be considered only on the
issue of Rose’s intent.
In 1996, Hicks pleaded guilty to aiding and abetting attempted bank robbery in
violation of title 18 United States Code, section 2113(a) and title 18 United States Code
section 2(a). As read by the prosecutor, the plea agreement, signed by Hicks, recited the
20
following facts: “Early in the morning of August 13, 1996, defendant [Hicks], [Halthon],
and five other black males traveled to California State Bank at 111 East Yorba Linda
Boulevard, Placentia, California, with the intention of robbing it. At approximately 6:53
a.m., two bank employees arrived at the bank in order to prepare it for the opening of the
business day. As the two employees entered the door of the bank, [Halthon] and one of
the other black males entered the door as planned. The remaining five waited outside in
three separate cars. Moments later, [Halthon] and the other male fled from the bank
building. Defendant Hicks, driving one of the three get-away cars, picked up [Halthon]
before driving away from the bank.”
The trial court admonished the jury that “[t]his document is to be considered only
as to Mr. Hicks and on the issue of Hicks’s intent during the events that are charged in
this case.”
2. Brown.
Brown established below, and now on appeal, that his trial should have been
severed and he was prejudiced by being tried with Rose and Hicks.
“Evidence is sufficient to prove a conspiracy to commit a crime ‘if it supports an
inference that the parties positively or tacitly came to a mutual understanding to commit a
crime. [Citation.] The existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and during the
alleged conspiracy. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1135.)
The problem here is that the jury was dealing with a thought crime requiring
mutual understanding, i.e., intent. Moreover, because the cases were jointly tried, the
jury was given the impossible task of deciding the intent issue for three cases based on
different evidence. In the case against Rose, the jury was required to decide the intent of
Rose, Hicks and Brown using Rose’s prior conviction and other evidence admissible
against him. In other words, in Rose’s case, the jury had to decide what was in each of
their minds, and whether it matched because mutual intent in a conspiracy case, by the
dictates of law, is a prerequisite. As to Hicks, the jury was required to decide the same
21
things, but considering only the evidence allowed in the People’s case against Hicks.
Finally, the jury was required to determine the intent of all three, and whether it matched,
in the case against Brown without resorting to the evidence that was admissible only
against Rose and Hicks. Given the above circumstances, the jury was required to decide
Rose’s and Hicks’s intent in their cases, and then forget what it had already determined
regarding Rose’s and Hicks’s intent when deciding Brown’s case. This created a
substantial danger of prejudice because this case required mental gymnastics that are
unreasonable to expect of any jury.
The trial court’s comments demonstrated that it was well aware that joining the
cases against Rose and Hicks with the case against Brown might tip the jury against
Brown. Given the trial court’s own views, and given the impossible task facing the jury
regarding the determination of Brown’s intent without considering evidence admissible
against Rose and Hicks, the trial court should have recognized the risk of prejudice to
Brown. As a result, it abused its discretion when it denied the motion to sever with
respect to Brown. The error was prejudicial, which is established by the majority vote in
favor of acquittal in the second trial after the prosecutor tried Hicks and Brown without
evidence of the priors.
Additionally, Brown was denied due process. An old adage comes to mind: a bell
cannot be unrung. Here, once the jury decided the intent of Rose and Hicks after
considering their prior convictions, it is unlikely it was able to decide that issue anew in
connection with Count 1 as it related to Brown. Thus, this is a case in which we cannot
say, with fair assurance, that the judgment was not substantially swayed by the error. In
other words, it is impossible to conclude that Brown’s right to due process was not
affected.
Due to state law error and denial of due process, reversal is required.18
18
Brown argues that he received ineffective assistance when his attorney failed to
object when the prosecutor allegedly conflated the issues of intent for all three defendants
and implicitly invited the jury to look at the priors of Rose and Hicks when determining
whether Brown had the requisite conspiratorial intent. Because Count 1 is being
22
When a conviction is reversed, we must determine whether there was sufficient
evidence to support the conviction. If so, a retrial is permissible. But if the evidence was
insufficient, then a retrial is barred by the Double Jeopardy Clause in the United States
Constitution. (People v. Grant (2003) 113 Cal.App.4th 579, 584; United States v. Lewis
(9th Cir. 1986) 787 F.2d 1318, 1323; United States v. Dicesare (9th Cir. 1985) 765 F.2d
890, 900.) On this topic, Brown offers no argument. Suffice it to say, there was
sufficient evidence here to support the conviction on Count 1. The evidence that was
cross-admissible showed incriminating coconspirator statements by Rose about his plans
to rob a bank with a crew; on various dates, Rose was near Williams’s home and bank as
well as Give Kay’s home and bank; during the March 9, 2010, traffic stop, Brown lied
about knowing Rose; Brown said Hicks and he were in San Diego on March 9, 2010, to
see Hicks’s friends, but Hicks said they were there to sell the Durango to an unknown
person; Brown was with Hicks when he drove away from the March 9, 2010, traffic stop
using countersurveillance techniques to expose anyone following; Brown met with Rose
and Hicks on April 13, 2010; the Nissan, Rose, Hicks and, inferentially, Brown were
involved in the surveillance of Give Kay’s home; Brown was present in Irvine on
April 21, 2010, near Give Kay’s home; Brown briefly met with Rose on April 23, 2010 in
Inglewood; Rose possessed firearms and ammunition; Brown possessed ammunition; and
in Brown’s interview in which he said he saw Hicks in jail, he lied by saying they had not
seen each other in a while. This evidence supported a finding that Brown conspired to
commit robbery or kidnapping for robbery because it established an agreement to rob a
bank and steps taken toward that goal.
3. Hicks.
In our view, Hicks failed to establish a substantial danger that he would be
prejudiced by being tried with Rose. At the time the trial court ruled, the evidence of
Rose’s prior conviction did not pose the same danger to Hicks that it did to Brown
because Hicks had a prior conviction similar to Rose’s. Thus, given that Hicks had a
reversed, the issue of whether Brown’s counsel provided ineffective assistance is moot,
and we need not resolve it.
23
prior conviction for aiding and abetting attempted bank robbery, the evidence of his
intent arising out of his prior bad act was just as strong as the evidence of Rose’s intent
arising out of his prior bad act. Also, the evidence regarding what Rose said to Hopes
about his bank robbery plans was cross-admissible. (People v. Brown (2003) 31 Cal.4th
518, 555 [When out-of-court statements by a coconspirator are made in the course of and
in furtherance of a conspiracy, and not made under suspect circumstances, they are
sufficiently reliable to require no corroboration].)19 So, too, was the evidence pertaining
to the surveillance, GPS tracking and cell phone data, the suspicious items found in Hicks
vehicle during the traffic stop, the evidence of Rose’s possession of firearms and
ammunition, and the evidence of Brown’s possession of ammunition. On top of that, the
prosecution possessed evidence suggesting Hicks lied during the March 9, 2010, traffic
stop during which he said he was returning from San Diego to sell the Durango to a
person he could not identify. Hicks’s interview was incriminating because he did not
provide truthful statements regarding his presence in Orange County with Rose and
Hicks, thereby showing consciousness of guilty. There was a powerful amalgamation of
19
Evidence Code section 1223 provides: “Evidence of a statement offered against a
party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by
the declarant while participating in a conspiracy to commit a crime or civil wrong and in
furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to
or during the time that the party was participating in that conspiracy; and [¶] (c) The
evidence is offered either after admission of evidence sufficient to sustain a finding of the
facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of
proof, subject to the admission of such evidence.”
“A conviction cannot be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.” (Evid. Code, § 1111.)
Testimony within the meaning of Evidence Code section 1111 includes “‘all oral
statements made by an accomplice or coconspirator under oath in a court proceeding and
all out-of-court statements of accomplices and coconspirators used as substantive
evidence of guilt which are made under suspect circumstances. The most obvious
suspect circumstances occur when the accomplice has been arrested or is questioned by
the police.’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 245.) In contrast,
this rule does not apply when out-of-court statements are given under circumstances
which cannot be called suspect. (Ibid.)
24
evidence against Hicks from which the jury could have concluded that he had a mutual
understanding with Rose and/or Brown to rob a bank. This was not a case, as Hicks
would have us believe, in which a very weak case was joined with a very strong case.
The case against Hicks may not have been as strong as the case against Rose, but it was a
strong case. We conclude the trial court did not abuse its discretion when it denied
Hicks’s motion.
The question remains whether joinder resulted in substantial and injurious effect
or influence in determining the jury’s verdict. The answer is no. The prior bad act
evidence against Rose and Hicks had the tendency to lead the jury to reach the same
conclusion regarding intent; much of the evidence was cross-admissible; and the
evidence surrounding the March 9, 2010, traffic stop revealed consciousness of guilt on
the part of Hicks. He nonetheless suggests that the deadlocked jury during the second
trial proves he was prejudiced in the third trial. This suggestions fails because the
prosecutor offered no evidence of Hicks’s prior bad act in the second trial but did so in
the third trial. Consequently, the prosecutor presented a stronger case in the third trial,
which explains the conviction.
Hicks complains there was no evidence he was aware that Rose possessed guns,
ammunition and scanners. This is a red herring because if the evidence was admissible, it
was cross-admissible to demonstrate that Rose was prepared to carry out the conspiracy.
Next, Hicks points out that Hopes testified regarding Rose’s check scheme, impliedly
suggesting he therefore received an unfair trial. That evidence was tangential and proved
nothing about the conspiracy, and it was unlikely to have an injurious affect on the jury’s
determination.
II. GPS Evidence Regarding the BMW and Chrysler.
In 2012, the United States Supreme Court held “that the Government’s installation
of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s
movements, constitutes a ‘search[]’” under the Fourth Amendment and requires a
warrant. (United States v. Jones (2012) 132 S.Ct. 945, 949, fn. omitted (Jones); People v.
Mackey (2015) 233 Cal.App.4th 32, 94 (Mackey).) The pivotal question, as recognized
25
by Rose, is whether the FBI agents reasonably relied on binding appellate precedent as it
existed in 2010 when they used GPS trackers to monitor the movements of the Chrysler
and BMW. If so, the exclusionary rule does not apply. (Id. at pp. 94–95.) According to
Rose, in 2010, there was no binding appellate precedent authorizing the monitoring of
tracking data, and therefore the 2010 tracking data culled from the GPS trackers without
a warrant should have been suppressed.
A series of cases defeats Rose’s position, the first of which is United States v.
Knotts (1983) 460 U.S. 276 (Knotts).
In Knotts, a beeper was placed in a five-gallon drum containing chloroform
purchased by one of the respondent’s codefendants and then transferred to a vehicle
owned by another codefendant. The beeper emitted periodic signals that were picked up
by a radio receiver. Law enforcement agents were able to track the drum as it was driven
from its place of purchase to a cabin occupied by respondent. According to the court, the
information could have been obtained by visual surveillance. (Knotts, supra, 460 U.S. at
p. 282.) Thus, the court held the monitoring of the beeper signals did not constitute an
unlawful search or seizure. (Id. at p. 285.)20
Rose would have us limit the import of Knotts to the beeper technology available
more than 30 years ago. Further, Rose cites a passage in which Knotts recognized that
24-hour surveillance of a citizen might require a different analysis, and then likens such
surveillance to GPS tracking. (Knotts, supra, 460 U.S. at pp. 283–284.) In our view,
Knotts aids the People, not Rose.
Here, as in Knotts, the tracking data was used to track the Chrysler and BMW on
public streets. Thus, the GPS trackers accomplished something that the FBI could have
accomplished with visual surveillance. The fact that the GPS trackers may utilize
technology that is more advanced than the beeper technology used in the 1980’s does not,
by itself, make GPS trackers more loathsome to the Fourth Amendment. Moreover, the
20
Relying principally on Knotts, People v. Salih (1985) 173 Cal.App.3d 1009 (Salih)
upheld warrantless monitoring of a beeper inside a parcel because no information was
obtained that was not available through visual surveillance. (Salih, supra, at p. 1016.)
26
GPS trackers did not provide 24-hour surveillance of Rose, as he implicitly suggests.
They provided 24-hour surveillance of the Chrysler’s and BMW’s locations, something
that did not intrude on Rose’s privacy when he was in a private space. The GPS trackers
did not implicate potential Fourth Amendment problems of invasive technology that, per
Knotts, may require new analysis.
Recently, the retroactivity argument advanced by Rose was rejected in Mackey, a
pre-Jones GPS tracking evidence case.21 Citing People v. Zichwic (2001) 94 Cal.App.4th
944, 953–956 (Zichwic) and United States v. McIver (9th Cir. 1999) 186 F.3d 1119,
1126–1127 (McIver), Mackey explained that “[p]rior to Jones, California state courts and
the Ninth Circuit had held that installation of a GPS device by law enforcement
authorities was not a search governed by the Fourth Amendment because a vehicle
operator had no reasonable expectation of privacy in a vehicle’s exterior. [Citations.]”
(Mackey, supra, 233 Cal.App.4th at p. 95.) As a result, Mackey held law enforcement
agents surveilling a target reasonably relied on Zichwic and McIver when placing a GPS
tracker on the target’s vehicle in 2007, and the resultant tracking evidence was not
subject to exclusion. (Mackey, supra, at p. 95.)
In Zichwic, police officers installed a tracking device on the defendant’s truck.
The next day, the tracking device allowed the police to locate the truck in front of a
business. When police officers went to the business, they caught the defendant in the act
of stealing tools. The defendant filed a “motion to suppress evidence of his location
obtained from installation of an electronic tracking device on the undercarriage of his
truck.” (Zichwic, supra, 94 Cal.App.4th at p. 948.) In other words, the defendant sought
suppression of the monitoring data. But on appeal, the defendant only challenged the
placement of the tracking device. (Id. at p. 951.)
21
Mackey was cited by the People in the respondent’s brief, but it was not addressed
in Rose’s reply brief.
27
The court followed McIver22 in holding the placement of a tracking device was not
a search. In dictum, Zichwic stated: “We observe that it is a separate question whether
monitoring signals from a tracking device is a search. [Citation.] The United States
Supreme Court has concluded that monitoring electronic signals does not amount to a
search when the only information provided is what could be obtained through visual
surveillance, such as the movements of an automobile on public thoroughfares.
[Citation.] Monitoring does amount to a search when it reveals information about
otherwise hidden activities inside a residence. [Citation.] In our case, monitoring the
tracking device simply revealed the movements of defendant’s truck on city streets.
Defendant’s complaint here concerns installation of the device, not the monitoring of its
signals.” (Zichwic, supra, 94 Cal.App.4th at p. 956.)
Here, the combination of Knotts and Zichwic supported the warrantless use of the
GPS trackers on the Chrysler and BMW in 2010. Rose may complain that Knotts is
distinguishable because law enforcement agents in that case used a combination of visual
and beeper surveillance, and the surveillance here was primarily electronic. We find that
distinction immaterial. What matters is the surveillance could have been accomplished
visually on public streets.
III. Uncharged Crime Evidence.
Evidence of uncharged crimes can be admitted under Evidence Code section 1101,
subdivision (b) to prove some fact other than a defendant’s propensity to commit a
charged crime. But for the evidence to be admitted, “there must be some degree of
similarity between the charged crime and the other crime[.]” (People v. Jones (2011) 51
Cal.4th 346, 371.) The “degree of similarity depends on the purpose for which the
evidence was presented. The least degree of similarity is needed when . . . the evidence
is offered to prove intent. [Citation.]” (Ibid.) A trial court’s decision to admit evidence
of another crime to prove intent will not be disturbed on appeal unless the record
discloses an abuse of discretion. (Ibid.)
22
In McIver, the court held that the placement of an electronic tracking device on a
vehicle does not constitute a search. (McIver, supra, 186 F.3d at pp. 1126–1127.)
28
At trial, the prosecutor was obligated to prove Rose and Hicks had the specific
intent that they and Brown would commit the elements of robbery or kidnapping for
robbery per a conspiratorial agreement. Rose argues his intent was not reasonably
subject to dispute if the jury believed he expressed various bank robbery preparations,
plans and opinions to Hopes as stated in the testimony of Hopes and Special Agent
Conley. As a result, Rose contends Ewoldt, supra, 7 Cal.4th at p. 406 establishes the
1996 federal offense was cumulative on the issue of intent, rendering it more prejudicial
than probative. Alternatively, Rose points out that evidence of an uncharged crime
comes with risk that must be weighed against probative value. Rose advocates that the
uncharged crime should have been excluded because it did not have substantial probative
value overcoming its inherent prejudice.
Hicks posits his uncharged crime was not sufficiently similar to the charged
conspiracy to make it logical to find evidence of intent related to the former is evidence
of intent for the latter. He maintains the only relevance of his uncharged crime was as
impermissible bad character evidence, and therefore the admission of that evidence
violated his right to due process.23
For reasons highlighted below, we cannot concur.
Ewoldt involved acts of molestation leading to a lewd conduct charge. The court
noted: “If defendant engaged in this conduct, his intent in doing so could not reasonably
be disputed. [Citations.] As to these charges, the prejudicial effect of admitting evidence
of similar uncharged acts, therefore, would outweigh the probative value of such
evidence to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 406.) Underlying Ewoldt is the
simple idea that direct evidence of a crime such as lewd conduct speaks for itself
23
Hicks acknowledges that the United States Supreme Court and California Supreme
Court have never expressly held that admission of bad character evidence is a violation of
due process. For example, in Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5, the Court
expressed “no opinion on whether state law would violate the Due Process Clause if it
permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged
crime.”
29
regarding intent, and evidence of similar uncharged acts would be cumulative and, for
that reason, a possible candidate for exclusion under Evidence Code section 352. (People
v. Leon (2008) 161 Cal.App.4th 149, 168–169 [in Ewoldt the Supreme Court emphasized
that where uncharged offense evidence is cumulative, it will often be inadmissible
pursuant to Evid. Code, § 352]; People v. Tran (2011) 51 Cal.4th 1040, 1049 (Tran)
[“The prejudicial effect of evidence defendant committed a separate offense may, of
course, outweigh its probative value if it is merely cumulative regarding an issue not
reasonably subject to dispute”].)
Regarding uncharged crimes, the court in People v. Thompson (1980) 27 Cal.3d
303, 317, fn. omitted (Thompson) stated: “As Wigmore notes, admission of this evidence
produces an ‘over-strong tendency to believe the defendant guilty of the charge merely
because he is a likely person to do such acts.’ [Citation.] It breeds a ‘tendency to
condemn, not because he is believed guilty of the present charge, but because he has
escaped unpunished from other offences . . . .’ [Citation.] Moreover, ‘the jury might be
unable to identify with a defendant of offensive character, and hence tend to disbelieve
the evidence in his favor.’ [Citation.]” Within that context, the court recognized
Evidence Code section 352 requires the probative value of the evidence to outweigh its
prejudicial effect (Thompson, supra, at p. 318, fn. omitted), and stated: “Since
‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are
admissible only if they have substantial probative value. If there is any doubt, the
evidence should be excluded. [Citation.]” (Ibid.) “Probative value goes to the weight of
the evidence of other offenses. The evidence is probative if it is material, relevant, and
necessary. ‘[How] much “probative value” proffered evidence has depends upon the
extent to which it tends to prove an issue by logic and reasonable inference (degree of
relevancy), the importance of the issue to the case (degree of materiality), and the
necessity of proving the issue by means of this particular piece of evidence (degree of
necessity).’ [Citations.]” (Id. at p. 318, fn. 20.)
Unlike Ewoldt, the case against Rose and Hicks involved a conspiracy. The only
evidence that Rose, Hicks and Brown entered into an agreement to commit kidnapping
30
for robbery and second degree robbery was circumstantial, i.e., they were seen casing
banks and the homes of bank managers, Rose possessed firearms and ammunition, Brown
possessed ammunition, Rose expressed various plans to Hopes, and the defendants lied to
law enforcement agents and therefore displayed consciousness of guilt. The evidence
was subject to attack by the defense because it required interpretation and potentially
gave rise to inferences of conspiracies not charged. And because the FBI paid Hopes
$4,000, Hopes’s motives for testifying was also subject to attack. Thus, while there was
evidence of intent aside from the uncharged acts, the uncharged act evidence was not
“merely cumulative” (Tran, supra, 51 Cal.4th at p. 1049) because it served to corroborate
the inferences of intent offered by the prosecution, and to bolster the veracity of Hopes.
These observations lead us to conclude that the evidence had substantial probative value
because there was a high degree of relevance, materiality and necessity, and any
concomitant prejudicial effect did not require exclusion. (People v. Lopez (2011) 198
Cal.App.4th 698, 715 (Lopez) [uncharged offenses are admissible only if they have
substantial probative value].)24
Moving on, we reject the idea that the charged crimes and uncharged crimes were
not sufficiently similar. The question is the logical relevance of the uncharged crimes to
establish the mental element of the charged crimes. (People v. Rocha (2013) 221
Cal.App.4th 1385, 1395.) “‘The inference to be drawn is not that the actor is disposed to
commit such acts; instead, the inference to be drawn is that, in light of the first event, the
24
Lopez, also cited by Rose, does not alter our conclusion. It indicated that the
evidence of a burglary showed that someone entered the kitchen of a residence and took
two purses. This led the court to state: “Assuming appellant committed the alleged
conduct, his intent in so doing could not reasonably be disputed— there could be no
innocent explanation for that act. Thus, the prejudicial effect of admitting evidence of a
prior car burglary and prior car theft outweighed the probative value of the evidence to
prove intent as to the . . . burglary charge. [Citation.]” (Lopez, supra, 198 Cal.App.4th at
p. 715.) Like Ewoldt, Lopez involved physical acts that were the foundations of the
crimes that brooked no dispute as to intent. Here, the foundation of the conspiracy crime
was a mental act that, absent direct evidence, required proof through triangulation of
multiple sources of circumstantial evidence.
31
actor, at the time of the second event, must have had the intent attributed to him by the
prosecution.’ [Citation.]” (Ibid.) Here, where both crimes involved plans to rob banks,
the inference to be drawn is that Rose and Hicks intended that they and Brown would rob
a bank per their conspiracy. Though there are differences between the uncharged crimes
and the charged crime, which Rose and Hicks attempt to parse to their benefit, the
differences pale in comparison to the similarity of the goal of the uncharged crimes to the
charged crimes, i.e., to rob banks. Moreover, the least degree of similarity is needed
when an uncharged crime is offered to prove intent.
Finally, we easily reject any suggestion the uncharged crimes were used to prove
bad character and conformity with that bad character. The trial court instructed the jury
that the evidence could only be used on the issue of intent. And, as we explained above,
it was sufficiently similar to be relevant.
Because we conclude that the evidence was not used as bad character evidence, it
is unnecessary and against wise appellate principles for us to reach Hicks’s due process
argument. A reviewing court will not decide constitutional issues where an appeal can be
resolved on other grounds. (Santa Clara County Local Transportation Authority v.
Guardino (1995) 11 Cal.4th 220, 230.)
IV. Issues Raised by Brown and Joined by Rose and Hicks.
Rose and Hicks join Brown’s arguments that the trial court erred when it
(1) refused to grant a continuance so they could prepare for an expert’s charts provided
by the prosecution in violation of reciprocal discovery statutes; (2) instructed the jury
about the late discovery pursuant to CALCRIM No. 306; (3) admitted evidence of
weapons, ammunition, weapons parts, a gun holster, a scanner and walkie-talkies found
in residences associated with Rose and Brown; and (4) refused to suppress a phone
number provided by Brown when he was booked.25 Brown contends the trial court
committed state law error, and he was denied due process.
25
With respect to certain issues, Brown contends he received ineffective assistance
of counsel. He does not contend the same as to Rose and Hicks. Because Brown’s
32
State law error is reversible only where, pursuant to People v. Watson (1956) 46
Cal.2d 818, 836 (Watson), it is reasonably probable that the defendant would have
obtained a better result absent the error. If an error implicates a defendant’s due process
rights, then Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) applies, i.e., the
error is reversible unless it was harmless beyond a reasonable doubt. (People v. Gonzalez
(2006) 38 Cal.4th 932, 961.)
We need not determine whether state or federal law was violated because Rose
and Hicks have not analyzed whether they were prejudiced under either the Watson or
Chapman standards. “To the extent [a] defendant perfunctorily asserts . . . claims,
without development . . . , they are not properly made . . . .” (People v. Turner (1994) 8
Cal.4th 137, 214, fn. 19.)
V. The Enhancement for Principal Armed with a Firearm.
“Section 12022, subdivision (a)(1) provides that ‘any person who is armed with a
firearm’ during the commission of a felony shall receive a one-year enhancement, and
that this enhancement applies to any principal in the commission of the offense regardless
whether such person is personally armed with a firearm. [Citations.]” (People v. Overten
(1994) 28 Cal.App.4th 1497, 1502–1503.) Arming “under the sentence enhancement
statues does not require that a defendant utilize a firearm or even carry one on the body.
A defendant is armed if the defendant has the specified weapon available for use, either
offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997 (Bland).) In
addition, “a defendant is ‘armed with a firearm’ . . . if he or she participates as a principal
in a crime in which one or more principals is armed. [Citation.]” (People v. Paul (1998)
18 Cal.4th 698, 706.) An enhancement will be upheld if it is based on substantial
evidence upon which a trier of fact could find the underlying allegation true beyond a
reasonable doubt. (People v. Ledesma (2006) 39 Cal.4th 641, 722; People v. Vega (2005)
130 Cal.App.4th 183, 189; People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.)
arguments do not inure to the benefit of Rose and Hicks, we conclude those arguments
are not part of their joinders.
33
Hicks maintains that there was insufficient evidence to support the special
allegation that a principal was armed with a firearm, and he seeks reversal of the
enhancement under former section 12022, subdivision (a)(1). Because Rose and Brown
received the same enhancement, they join the argument.
At best, the evidence suggested that Rose stored two firearms in a closet in
Fuller’s apartment. The question is, assuming that those firearms belonged to Rose,
whether he was “armed.”
In People v. Reaves (1974) 42 Cal.App.3d 852 (Reaves), the court examined the
legislative intent behind arming enhancements. It expounded on the topic as follows:
“The desire of the Legislature to prevent death and injury as a result of the involvement
of firearms in the commission of crime is manifest from the various provisions for
increased punishment for crimes where firearms are in some way involved. The
underlying intent of the Legislature is to deter persons from creating a potential for death
or injury resulting from the very presence of a firearm at the scene of the crime. Thus
there is aggravated punishment for a person who is armed with a deadly weapon even
though no use is made of the weapon.” (Reaves, supra, at pp. 927–928.)
Citing Reaves, both People v. Wandick (1991) 227 Cal.App.3d 918, 928
(Wandick) and Bland reiterated that the legislative intent is “to deter persons from
creating a potential for death or injury resulting from the very presence of a firearm at the
scene of the crime[.]” (Wandick, supra, at p. 928; Bland, supra, 10 Cal.4th at p. 996.) It
is therefore apparent that a firearm must be present at the scene of a crime for former
section 12022, subdivision (a)(1) to apply.
Using these cases as a roadmap, we must determine whether the firearms were
present during the commission of the conspiracy. The answer is no.
We easily conclude that this case is distinguishable from Bland. In Bland, the
police found a weapon and drugs in close proximity, and the court upheld an
enhancement under former section 12022, subdivision (a)(1) because “the jury could
reasonably infer that, at some point, . . . defendant was physically present with both the
drugs and the weapon, giving him ready access to the [weapon] to aid his commission of
34
the drug offense.” (Bland, supra, 10 Cal.4th at p. 1000.) Here, there was no basis for the
jury to infer that firearms were present during the commission of the conspiracy, i.e.,
when the conspiracy was formed, or when overt acts were committed, because there was
no evidence that Rose physically possessed the firearms while committing conspiratorial
acts, or that any part of the conspiracy was committed at Fuller’s apartment while the
firearms were being stored in her closet. The inescapable upshot is that the
enhancements must be reversed.
Tellingly, the People offer no basis for us to reach a contrary conclusion. Instead
of arguing that Rose was armed, the People instead argue that he was in constructive
possession of the two firearms. They cite In re Daniel G. (2004) 120 Cal.App.4th 824,
831 [unlawful possession of an assault weapon], People v. Penã (1999) 74 Cal.App.4th
1078, 1083–1084 [unlawful possession of a weapon while under the influence of drugs],
and People v. Rushing (1989) 209 Cal.App.3d 618, 622–623 [unlawful possession of a
controlled substance]. We need not address this argument because it is not relevant to
whether Rose was “armed with a firearm in the commission of a felony” under former
section 12022, subdivision (a)(1).
VI. Rose’s Judgment and Abstract of Judgment.
Section 1465.8, subdivision (a)(1), mandates that an assessment of $40 be imposed
“on every conviction for a criminal offense[.]” Government Code section 70373,
subdivision (a)(1), mandates that an assessment of $30 be imposed “for each
misdemeanor or felony.” According to the People, the trial court imposed a section
1465.8, subdivision (a)(1) assessment and a Government Code section 70373 assessment
on Rose for Count 1 but not for Count 2 and Count 3. The People ask us to impose those
assessments with respect to Count 2 and Count 3, and then amend the judgment to reflect
the imposition of those assessments. (People v. Robinson (2012) 209 Cal.App.4th 401,
405.)
We have reviewed the record and conclude the trial court complied with its
obligations to impose assessments. At sentencing, the trial court stated, inter alia,
“Regarding the court security fine of $40, [Rose] has to pay that three times because [of]
35
the three convictions. So it’s $120. And the court construction fee under the
Government Code of $30 is, again, multiplied by three for a $90 fine.” The trial court’s
minute order establishes that three assessments of $40 were imposed on Rose pursuant to
section 1465.8, subdivision (a)(1), and three assessments of $30 were imposed on Rose
pursuant to Government Code section 70373. As to Count 1, the abstract of judgment
provides a $40 court security fee pursuant to section 1465.8 and a criminal conviction
assessment of $30 pursuant to Government Code section 70373. With respect to Count 2
and Count 3, the assessments are combined and total, respectively, $80 and $60.
Given the foregoing, there is no need for us to impose additional assessments and
amend the abstract of judgment.
DISPOSITION
The firearm enhancements are stricken. The judgment against Brown on Count 1
is reversed. On remand, the People may seek a retrial. The judgments against Rose and
Hicks are modified to reflect that there is no firearm enhancement, and the abstract of
judgment shall be amended accordingly. Otherwise, the judgments against Rose and
Hicks are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
36