People v. Clark ( 2021 )

Filed 4/5/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089046
Plaintiff and Respondent, (Super. Ct. No. 18FE008129)
v.
GERQUAN DWAYNE CLARK et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Sacramento County, Raoul M.
Thorbourne, Judge. Affirmed in part and reversed in part.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant
and Appellant, Gerquan Dwayne Clark.
James S. Thomson, under appointment by the Court of Appeal, for Defendant and
Appellant, Anthony Maurice Brown.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Parts II – IV.
1
Kamala D. Harris, Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B.
Bernstein, Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Gerquan Dwayne Clark and Anthony Maurice Brown robbed three
men at gunpoint. Shortly thereafter, defendants were tracked to a local retail store using
a phone app on one of the cell phones they had stolen. Upon arriving at that location,
police located a vehicle that matched a description received at the robbery scene. The
vehicle was registered to Brown. Brown and then Clark were apprehended leaving the
store. Clark had one of the victims’ cell phones. In Brown’s car, police found more
property taken from the victims. Additionally, the other two victims’ cell phones were
found in the parking lot near Brown’s car. At a showup, one of the victims identified
both defendants, and another identified Clark. At trial, both victims identified Clark as
the man who pointed the gun at them, and one victim identified Brown as the other man.
Police never found the gun. At trial, defendants asserted that the prosecution had not
proven beyond a reasonable doubt that the object used during the robbery was a real gun.
A jury found defendants guilty of three counts of robbery in the second degree
with firearm enhancements. Additionally, the jury found each defendant guilty of
possession of a firearm by a felon. The trial court sentenced Clark to an aggregate term
of 21 years and Brown to an aggregate term of 12 years.
On appeal, defendants assert their felon in possession of a firearm convictions and
the firearm enhancements must be reversed because (1) the trial court erred in admitting
evidence of Clark’s prior uncharged act involving possession of a firearm pursuant to
Evidence Code section 1101, subdivision (b), on the theory that the uncharged act
evidence was relevant to prove Clark knew he possessed a real gun at the time of the
robberies, and (2) the prosecutor committed misconduct in urging the jurors to use that
prior uncharged act as propensity evidence. Brown separately asserts (3) the prosecutor
committed misconduct in vouching for the prosecution and disparaging defense counsel,
2
and (4) cumulative error requires reversal. Finally, as to sentencing, Brown asserts (5)
that because of Senate Bill No. 136 (Stats. 2019, ch. 590, § 1.) (S.B. 136), the matter
must be remanded for the trial court to strike his prior prison term enhancement.
We reverse the convictions of felon in possession of a firearm as to both
defendants and all firearm enhancements. We conclude the trial court erred in admitting
evidence of Clark’s prior uncharged act pursuant to Evidence Code section 1101,
subdivision (b), and the evidentiary error was prejudicial as to the felon in possession of a
firearm count and the firearm enhancements. Because we reverse the possession
conviction and firearms enhancements, we need not reach defendant’s claims that the
prosecutor committed misconduct in making a propensity argument to the jury. As for
Brown’s separate prosecutorial misconduct claim, we conclude the prosecutor committed
misconduct in vouching for the prosecution and disparaging defense counsel, but these
instances of misconduct did not prejudice Brown. We further conclude Brown’s
cumulative error contention is meritless. Finally, because of S.B. 136, we strike Brown’s
prior prison term enhancement and remand for resentencing as requested by the parties.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendants were charged with robbery in the second degree (Pen. Code, § 211;
counts one, two, three)1 and felon in possession of a firearm (§ 29800, subd. (a)(1); count
four). As to each of the three robbery counts, it was alleged that Clark personally used a
firearm within the meaning of section 12022.53, subdivision (b), and, as to Brown, that a
principal was armed with a firearm in the commission of the robberies within the
meaning of section 12022, subdivision (a)(1). It was further alleged Brown sustained a
conviction of a prior serious felony, negligent discharge of a firearm causing great bodily
1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
3
injury (§§ 246.3, 12022.7), and another prior conviction, possession for sale of cocaine
base and concealed firearm in a vehicle (§ 25400, subd. (c)(6); Health & Saf. Code,
§ 11351.5), for which he served a prior prison term. (§ 667.5, subd. (b).)
Prosecution Evidence
The victims, J.R., O.F., and G.N. worked as construction pipelayers. On April 24,
2018, they were working on a project in Land Park in Sacramento. Sometime between
noon and 12:30 p.m., they stopped working and sat by the side of the road to eat lunch
together. After about five minutes, two males approached to within approximately three
to four feet. One of the men pulled out a handgun and demanded money, wallets, and
phones. He racked the slide of the gun. O.F. testified that the man pointed the gun at his
stomach, and G.N. testified that, at one point, the man pressed the gun against his left
cheek. J.R. said the gun was black and described it as a “regular handgun,” “not too big,
not too small.” It was not a revolver because it had a slide and did not have a cylinder.
O.F. described the gun as small, and, upon refreshing his recollection, agreed he had told
police the gun was black and gold. He testified the gun looked real. G.N. testified the
gun was small, chrome and black in color.
At trial, J.R. and O.F. both identified Clark as the man who pulled out the gun.
J.R. identified Brown as the other man. O.F. testified that, because he had been focused
on Clark and the gun, he did not get a good look at the other person. J.R. and O.F. both
testified Clark pointed the gun at them. G.N. did not identify either defendant.
J.R. gave defendants his phone. O.F. gave defendants his wallet, containing
approximately $10, credit cards, and identification, as well as his phone. G.N. had $45 or
$48 in cash as well as credit cards and his license in his wallet, which he gave to the man
with the gun. The other man took G.N.’s lanyard and his company phone. After the two
men took items from the victims, they left. The entire incident lasted two to four
minutes. J.R. acknowledged he did not see the gun for very long, only for a few seconds.
4
J.R. described the man with the gun to police as a black male, five feet eight
inches tall, 175 pounds, wearing a black long-sleeve shirt, black jeans, a do-rag, and no
facial hair. He described the other person as five feet 10 inches, approximately 180
pounds, and wearing a black hoodie.2 O.F. recalled that he told officers the man with the
gun who robbed him was five feet eight inches tall. O.F. testified that the man with the
gun wore a sweater with a hood and what he believed to be gray sweatpants.
At 12:26 p.m., police received a 911 call reporting the robbery. Officer Keith
Hughes arrived at the location of the robbery and was contacted by an area resident who
handed him a note written by a neighbor who was frightened and did not want to be
identified. The note pertained to a vehicle, and stated: “ ‘Dark green,” “Paper plate on
the front, Hayes Auto Sales, red background, white lettering.’ ”3 The person who wrote
the note told the woman who delivered it to Hughes that she had seen two large black
males parked in front of her house in the car described in the note.4
2 A DMV record for Clark indicated that he was six feet tall and 165 pounds. According
to colloquy between the court and the attorneys, it appears this record was created on
January 30, 2017, approximately 15 months before the robberies. A DMV record for
Brown indicated he was five feet eleven inches tall and weighed 230 pounds. According
to the same colloquy, it appears that this record was prepared on November 27, 2017,
approximately five months before the robberies.
3 In her in limine motions, the prosecution sought to introduce the evidence concerning
the information received from an anonymous source for the purpose of the effect on the
officers, “why the officers knew which car to look for.” The court precluded introduction
of the note, but allowed testimony about what the note said for the limited purpose
advanced by the prosecution.
4 Hughes spoke with another witness who told him she saw two individuals wearing
black clothing riding away on bicycles. The trial court expressly instructed the jury that
this testimony was not to be considered for the truth of what was asserted, “because
somebody told the officer that. And for the purpose of then exploring, as counsel may
want to explore, what, if anything, did he do with that information, and if so, why and
why not.” Brown makes a point of noting that, while Hughes relayed the information
about the green car over his police radio, he did not relay the tip about the two individuals
5
G.F., O.F.’s wife, received a call from her father, who worked with O.F. Her
father told her about the robbery, including the fact that G.F.’s phone had been stolen.
G.F. tracked O.F.’s phone using a mobile phone app. When she began tracking the
phone, the app indicated the phone’s location was on a freeway. She tracked the phone to
a liquor store on Florin Road. The phone went from the liquor store to Burlington Coat
Factory on Florin Road. G.F. relayed this information to her father who was with police
officers. She testified she tracked the phone for approximately an hour before it stopped
at the Burlington Coat factory.5
Officer Frank Reyes arrived at Burlington Coat Factory at approximately 1:20
p.m. and located a green Acura with paper plates matching the description that had been
broadcasted. Meanwhile, Sergeant Matthew Young arrived and instructed officers to
establish a perimeter.
At 1:28 p.m., Reyes saw Brown approaching the green Acura from the store. He
was talking on a cell phone. When Brown was about a car length from the Acura, he saw
Reyes. He then turned around and walked back toward the store. He went back inside
the store and when he reemerged, he was detained. He was sweating profusely, “[k]ind
of frantic,” and very nervous.
Subsequently, Young saw Clark come out of the store and look around in all
directions. By this time, there were uniformed officers throughout the parking lot. Clark
saw that officers were detaining Brown, turned around, and went back into the store.
on bicycles. While true, this is immaterial. First, the evidence was not received for the
purpose of showing there were, in fact, two people wearing black clothing who left the
area on bicycles at some point after the robbery. Second, even so, property stolen from
the victims during the robbery was later discovered on Clark’s person and in and around
Brown’s car.
5 No testimony was given concerning the time G.F. began tracking or the times when the
phone was at each of the locations she testified about.
6
Detective Marcel Loriaux went into the store where he detained Clark in the area of the
cash registers. In searching Clark, Loriaux found some currency and J.R.’s cell phone.
Loriaux viewed surveillance video at Burlington Coat Factory. On the video,
Loriaux saw Brown enter the store first, wearing a red shirt. Approximately 10 seconds
later, Clark came in, bare-chested, putting on a white T-shirt.6
Young searched Brown and found car keys which matched the green Acura. The
car was registered to Brown. Young and Reyes searched the Acura. Therein, they found
G.N.’s California identification card and lanyard. They also found G.N.’s cell phone on
the ground, near the car. Brown acknowledged that Clark was his cousin.
A couple found a Samsung cell phone on the ground in the parking lot next to
where they parked. They gave it to officers in the parking lot who were focused on the
green car parked next to their car. That phone belonged to O.F.
The victims were transported by police to Burlington Coat Factory for a showup.
J.R. identified both Clark and Brown. O.F. told officers he recognized Clark as the man
who had been holding the gun. He was not sure about the other individual, and indicated
he did not get a good look at him during the incident. G.N. did not identify either
individual. G.N. did say, about the first man he was shown, Clark, “ ‘That was not the
clothes he had on. I don’t think that was him.’ ” G.N. did tell the officers that he thought
the pants they were wearing were the same, but he was not sure.
Police did not find a gun. Officers searched the green car, the area where the
robbery occurred, the area of the liquor store where phone tracking indicated defendants
stopped, and inside and outside of Burlington Coat Factory, including in the merchandise
6 Loriaux did not testify that he had watched any more of the store’s recording than
defendants’ entry. He thought the recording would be obtained by officers, but, because
of miscommunication between the officers, it was not. Loriaux explained that at some
point more than 30 days after the arrests, he spoke to personnel at the store and learned
that the video footage had been deleted.
7
and the area near the cash registers where Clark was detained. But they never found the
gun.
Clark’s Evidence
John Moran testified as an expert in firearms and replica firearms. He testified
that that replica firearms are “dimensionally and visually similar” to real firearms. The
slide can be racked on a replica firearm just like a real firearm. People have been shot by
law enforcement for brandishing what turns out to be replica firearms. According to
Moran, in California, Airsoft replicas are required to be sold with orange tips affixed to
the barrel, but it is not a crime for the consumer to remove the orange tip. Pellet guns and
BB guns are not required to be sold with an orange tip on the barrel. Moran testified of
replicas: “Visually, unless it has that orange tip on it, there’s really no way to tell.”
“[V]isually it is essentially impossible to tell the difference.”
Brown’s Evidence
Dr. Geoffrey Loftus, an experimental psychologist, testified as an expert in the
field of memory perception and eyewitness testimony. He testified about two routes
through which information makes its way into human memory. The first is “conscious
experience,” essentially personal contemporaneous perceptions of the event itself. The
second route is through “postevent information.” According to Loftus, “witnesses can
and do acquire postevent information and use it to supplement their original . . . memory
of what happened. It plugs gaps, fills holes in the original memory, makes for a more
coherent story of what actually happened during the event.” Loftus testified that,
generally, “witnesses can’t tell which part of the memory came from which source,
conscious information versus postevent information. And typically, witnesses always
believe that it’s true.” Loftus elaborated: “under the right circumstances, people are
perfectly capable of developing memories that are strong, detailed, very real-seeming,
and that are expressed with a great deal of confidence but memories that, unbeknownst to
8
the witness, are potentially false in important ways because, unbeknownst to the witness,
they’re largely made up of postevent information whose accuracy is dubious.”
Loftus discussed a body of research on “ ‘weapon focus.’ ” When a gun is used,
people tend to pay attention to it. The “attentional spotlight beam” is not on other aspects
of the scene, such as the appearance of the person who is holding the gun. He also
testified that if there were multiple perpetrators of a crime, the victim’s attention would
be divided among the multiple perpetrators, resulting in less “attentional resources”
devoted to each perpetrator. Additionally, Loftus testified that an individual being
robbed at gunpoint would be experiencing a high stress environment. In high stress
environments, people remember things “more poorly.”
Loftus also testified about cross-racial identification, “ the finding . . . that people
are less able to identify and recognize members of other races compared to their ability to
recognize and identify members of their own race.” Presented with a hypothetical
situation where three Latino men believed they were robbed by two African-American
men, Loftus testified that this would be a situation where cross-racial identification could
come into play.
Loftus also testified that witnesses tend to better remember “ ‘global
characteristics,’ ” such as height, weight, clothing, and hairstyle.
Regarding identification procedures, Loftus opined that from a psychological
standpoint, a lineup procedure is more reliable than a showup. He testified: “in a lineup
procedure . . . , if the witness identifies the suspect, it’s a genuine test of memory . . . , the
match between the witness’s memory of the perpetrator and the suspect[’s] appearance is
stronger than the match between the witness’s memory of the perpetrator and the
appearance of the various fillers. So it’s a real test of memory.” In a showup, “a witness
is perfectly at liberty to make a positive identification irrespective of how well the
suspect matches his memory of the perpetrator.”
9
Stipulations
The trial court read the following stipulations to the jury:
“[I]t’s agreed that on or about June 19, 2017 in Superior Court, State of California,
for the County of Sacramento, the defendant, Gerquan Clark, was convicted of a felony.”
“[B]oth counsel agree that on or about March 21, 2016 in the Superior Court of
California, County of Sacramento, the defendant, Anthony Brown, was convicted of a
felony.”
Verdict and Sentence
The jury found Clark guilty of robbery in the second degree of all three victims,
counts one through three, and found each of the associated section 12022.53, subdivision
(b), firearm enhancement allegations to be true. The jury also found Clark guilty on
count four, violation of section 29800, felon in possession of a firearm. The trial court
sentenced Clark to an aggregate term of 21 years eight months.7
7 Clark’s 21 year aggregate term was calculated as follows: the midterm of three years
on count one, robbery in the second degree, plus 10 years on the section 12022.53,
subdivision (b), enhancement; on each of counts two and three, robbery in the second
degree, one year (one-third the midterm), plus three years four months (one-third the
midterm) for the associated section 12022.53, subdivision (b), enhancement; and two
years on count four, felon in position of a firearm, with the sentence on count four stayed
pursuant to section 654.
The abstract of judgment indicates that, in addition to the determinate term on count
four, the trial court stayed a term on a 12022.53, subdivision (b), enhancement attached to
count four. However, the trial court did not pronounce any such sentence. (See People v.
Delgado (2008) 43 Cal.4th 1059, 1070 (Delgado). [“[T]he abstract of judgment is not
itself the judgment of conviction, and cannot prevail over the court’s oral pronouncement
of judgment to the extent the two conflict”].) Moreover, section 12022.53 does not apply
to violations of section 29800 (§ 12022.53, subd. (a) [listing the felonies to which the
section applies]), and the second amended information did not allege a firearm
enhancement attached to count four. Because we are reversing Clark’s conviction on
count four and remanding for a new trial on that count and/or resentencing, the court will
prepare an amended abstract of judgment and this error will be rendered moot.
10
The jury found Brown guilty on counts one through four and found the section
12022, subdivision (a)(1), armed with a firearm enhancement allegations attached to
counts one through three to be true. Brown waived jury trial on his alleged strike prior,
and the trial court found that allegation true. The court also found true the allegation that
Brown served a prior prison term within the meaning of section 667.5, subdivision (b).
The court denied Brown’s motion to strike his strike prior. (See People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.) The court sentenced Brown to an aggregate term of 12
years eight months.8
8 Brown’s 12 year 8 month aggregate term was calculated as follows: the midterm of
three years on count one, robbery in the second degree, doubled pursuant to section 667,
subdivision (e)(1) and 1170.12, subdivision (c)(1), plus one year for the section 12022,
subdivision (a)(1), firearm enhancement; on each of counts two and three, robbery in the
second degree, one year, (one-third the midterm), doubled, plus four months for the
section 12022, subdivision (a)(1), enhancement; the midterm of two years on count four,
felon in possession of a firearm, with the sentence on that count stayed pursuant to
section 654, plus one year on the section 667.5, subdivision (b), prior prison term
enhancement.
When the trial court originally sentenced Brown, it erroneously doubled the sentences
imposed on the firearm enhancements on counts two and three. This was error. (People
v. Sok (2010) 181 Cal.App.4th 88, 93-94.) However, five days later, the trial court
recalled Brown’s sentence and resentenced him. (§ 1170, subd. (d)(1).) The trial court’s
purpose in resentencing Brown was to find true that his prior qualified as a “nickel prior”
(§ 667, subd. (a)(1)), but the court then “str[u]ck the punishment for that under” Senate
Bill No. 1393 and section 1385. In resentencing Brown, the trial court correctly doubled
Brown’s base terms, but did not double the enhancement sentences. However, the
abstract of judgment indicates that the court imposed and stayed a one-year term on a
section 12022, subdivision (a)(1), firearm enhancement on count four. There was no
firearm enhancement attached to count four, and the trial court did not pronounce any
such sentence. (See Delgado, supra, 43 Cal.4th at p. 1070.) Moreover, section 12022
does not apply to an offense where “the arming is an element of that offense” such as
section 29800. (§ 12022, subd. (a)(1).) As with Clark, this error on the abstract of
judgment will be rendered moot.
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DISCUSSION
I. Admission of Clark’s Prior Conviction of Prohibited Person
in Possession of a Firearm Under Evidence Code Section 1101, Subdivision (b)
A. Additional Background
1. In Limine Motion and Trial Court’s Ruling
The prosecution moved to admit evidence of the facts underlying Clark’s prior
prohibited person in possession of a firearm juvenile adjudication under Evidence Code
section 1101, subdivision (b) (section 1101(b)). According to the motion, on September
27, 2016, gang enforcement officers stopped a vehicle in which Clark was a passenger in
the front passenger seat. In a vehicle search, officers found a Glock 27 (.40-caliber
semiautomatic handgun) with an extended magazine underneath the driver’s seat. The
gun was loaded with 15 rounds in the magazine and one in the chamber.
In her motion, the prosecutor asserted this evidence was relevant to prove motive
and knowledge. The prosecutor wrote: “In both the charged and uncharged offenses, the
Defendants were felons in possession of a firearm.[9] Both defendants have a huge
motive to get rid of the firearm in the current offense. Defendants having suffered prior
convictions for guns, know being in possession of a firearm will lead to more time in
custody, and possibly prison time. Their motive to ditch the gun would be even more
heightened in this case because they had just used a firearm in the commission of a
robbery.”10 The prosecutor asserted the evidence was more probative than prejudicial
9 In addition to Clark’s prior, the prosecution also sought to admit facts underlying
Brown’s two prior convictions for felon in possession of a firearm. The trial court later
denied the prosecution’s request to admit prior uncharged acts evidence related to Brown.
10 The prosecutor also asserted that defendants “had knowledge that they were prohibited
persons and not allowed to be in possession of a firearm.” (Italics added.) The People do
not advance this theory on appeal, and for good reason. Knowledge of status as a
prohibited person is not an element of the offense of possession of a firearm by a felon
under section 28900. “The elements of this offense are conviction of a felony and …
12
under Evidence Code section 352. She asserted that the evidence did not tend to show
bad character, but “merely shows that the Defendant had the required knowledge; he had
the motive to possess a firearm; and that his conduct was not the result of an accident or
mistake.” Further, the prosecutor asserted she was aware defendants would argue that the
gun used could have been fake, and that, because law enforcement did not find the gun,
the prosecution could not prove it was a real gun. According to the prosecutor, the
“evidence helps in a variety of ways, but most of all, it helps to show that in the past, the
defendants were caught in the possession of real guns, not fake ones.”
Clark opposed the motion, noting that, during the prior offense, he was merely a
passenger in a vehicle which was stopped and in which police located a firearm
underneath the driver’s seat. He emphasized that there was no proof he ever wielded the
firearm or that the firearm was used in a robbery or any similar violent or threatening
manner. Clark asserted: “there are no facts sufficiently similar between the current and
prior offenses to suggest that Mr. Clark learned about more severe consequences of
personally using a firearm during a violent felony.” Nor was a firearm enhancement
charged from which it could be inferred Clark learned of the “increased consequences for
personal use” of a firearm. He argued, in effect, the prosecution was simply employing a
“back-door means of presenting propensity evidence to the jury: that because [] Clark
was previously in possession of a gun, he therefore personally used a gun in this case.”
Clark joined in Brown’s written opposition, in which Brown pointed out that the
prosecution’s motive theory—motive to discard the gun—was not a theory of motive to
commit the charged crime. He emphasized that “motive under Evidence Code section
knowing possession, custody, or control of a firearm.” (People v. Blakely (2014) 225
Cal.App.4th 1042, 1052 (Blakely); see also CALCRIM Nos. 2510, 2511; People v.
Snyder (1982) 32 Cal.3d 590 [defendant’s claimed mistake thinking her prior conviction
was a misdemeanor and thus she did not have the legal status as a felon did not constitute
a valid defense since it was a mistake of law, not a mistake of fact].)
13
1101 must be one that shows the defendant has ‘an incentive to commit the current
crime,’ ” and argued the prosecution’s theory “describes motive to do an act subsequent
to the crime, not the crime itself.”
At the hearing on the motion, the trial court asked the prosecutor what the primary
purpose for the uncharged act evidence was, and the prosecutor responded: motive. She
asserted: “Motive, given the fact that both defendants have suffered prior convictions for
possessing firearms when they know they’re not supposed to. They know the
consequences for possessing firearms, given the fact they are a felon. They understand
that possessing a firearm does result in significant jail time, specifically, state prison
time.”
Clark’s attorney asserted evidence of the prior gun possession was “straight
propensity evidence. It is clearly propensity evidence.” He further asserted the evidence
“definitely doesn’t survive the 352 balancing . . . .” He continued: “the People’s
argument as to [Clark’s] knowledge of firearms and his motive to discard it, [Clark] has
never been to prison. He doesn’t know what makes someone more culpable to where
they would go to prison and not. He has no prior convictions that are being alleged in
this case, that would constitute a strike or a prison prior, nickel prior or anything like that.
So saying [Clark] would somehow have knowledge of the increase in punishment for
possessing firearms is not here.” Counsel further asserted the purported motive to discard
the firearm did not fit with the facts of the case because defendants did not realize they
were being pursued by law enforcement as demonstrated by the fact that they “were
literally caught with every other piece of evidence from this alleged robbery, other than
the firearm. So there was no opportunity or motive to discard this.” Additionally,
counsel noted that the prosecution could argue defendants had a motive to discard a
firearm without getting into prior convictions. He continued: “It’s truly -- there’s no
noncharacter purpose for this to come in. It’s straight propensity evidence.”
14
Brown’s attorney added: “just the concept that because these two young men have
prior convictions or conduct that’s alleged involving guns, that somehow this is why they
might understand the concept of discarding the instrumentality of crime is ridiculous.
People have gotten rid of evidence on cases all throughout time, without requiring any
kind of prior knowledge based on having prior convictions.”
The court then asked the prosecution “are you going to argue to the jury . . . that
these guys will discard the weapon because having a weapon increas[es] somebody’s
punishment?” The prosecutor responded, “[t]hey know there’s a heavy consequence
when you utilize a weapon in . . . the commission of a robbery. That’s common sense.”
The trial court determined the evidence was “highly probative” and relevant to
motive, “knowledge of weapons and using that firearm, one of the elements of the
charge.” The court concluded: “So looking at that, and then looking at the language the
courts use in determining whether or not the 352 line was crossed, I’m going to allow the
People to use those under 1101(b) . . . .” The court also stated that, in addition to motive
and knowledge, the evidence was relevant to absence of mistake. The court ruled it
would allow Clark’s prior and one of Brown’s two prior felon in possession of a firearm
convictions. There was no discussion, either in the prosecution’s written in limine
motion or during the hearing, about what “knowledge” the evidence was relevant to
prove.
Subsequently, the court revisited the uncharged crime evidence and the
prosecutor’s theory. The court confirmed the prosecution sought to admit the evidence to
buttress the position that Clark had previously been convicted of a gun charge which
supported the claim that defendants “deliberately ditched the gun, which has never been
found . . . .” The prosecutor stated, “[i]t is motive, not necessarily motive to commit the
current offense, which was addressed by [defense counsel’s] motion, but just motive.”
She continued: “I didn’t argue it as much initially, but knowledge was the second
argument that I was putting forth. At this point, what the defense is putting at issue is
15
whether or not the gun was real or fake.” The prosecutor then stated: “the fact they do
have prior convictions dealing with real guns, not fake guns, I believe the People should
be allowed to argue, shows knowledge that, in this case, they were utilizing real guns, not
fake guns. That coupled with the fact that they discarded the gun. You don’t discard a
fake gun. You get rid of a real gun. You don’t get in trouble for a fake gun. So those
two things, together, I believe, should go to knowledge and that’s what I was going to use
the uncharged offense for.”
Clark’s attorney emphasized the prosecution’s “first argument” was propensity:
“they had real guns in the past, so they had real a gun [sic] in this case.” The prosecutor
countered, “[t]hey had knowledge that they had a real gun,” and noted that was an
element of felon in possession of a firearm she had to prove. Asked about the similarities
between the prior and the charged offenses, the prosecutor asserted that the two were
similar in that, in both instances, Clark had a real gun.
As to knowledge, Brown’s attorney noted that this case did not present the
situation where a person is carrying a bag and does not know there is a gun inside. He
continued: “So knowledge of whether a past gun . . . is a real gun has no bearing on
whether or not he knew there was a gun in this present case.” He further argued:
“There’s no logical inference that, because in the past, he knew that he had a gun in his
waistband, therefore in this case, he must have known his co-defendant had a gun.”
The trial court affirmed its earlier ruling as to Clark, allowing the prosecutor to
present the underlying evidence related to his prior. However, given the dissimilarities,
the court precluded the evidence of Brown’s prior gun possession it had earlier ruled
would be admissible.
2. Trial Testimony and the Court’s Contemporaneous Limiting Instruction
Officer Vincent Catricala testified that, on September 27, 2016, he conducted a
vehicle stop. There were three individuals in the vehicle. Clark was in the front
passenger seat. The passenger in the back seat was sitting behind the driver. In a search
16
of the vehicle, police found a Glock model 27 .40-caliber semiautomatic handgun under
the driver’s seat. The gun had an extended magazine with 15 rounds in the magazine,
which was in excess of the 10 rounds permissible under California law. And it also had
one round in the chamber.
Immediately after Catricala’s testimony, the trial court instructed the jury: “I’ll
say more about this at the end tomorrow, but the evidence you just heard regarding this
incident involving Mr. Clark and this weapon that was found, did ultimately result in him
being convicted of being in possession of a firearm by a prohibited person. [¶] The
reason why you heard it relates to a specific issue in the case that I’m going to talk more
about tomorrow. But I need you to understand that you are not, what I do not want you
to do, and I’ll say more about this later, I do not want you to just think in your head: Gee,
he committed a gun crime violation before; therefore, he must be guilty in this case. [¶]
That’s not how you’re supposed to use that evidence. It’s for other reasons, knowledge
and other things. But don’t conclude from that that he must be guilty in this case because
he did it before. [¶] I’ll say more about this later. You were allowed to hear that for a
specific purpose, which I’ll say more about. But I wanted to admonish you about that.
[¶] And also, please do not conclude the fact that Mr. Clark suffered that conviction, that
we are saying anything or that there’s any connection involving Mr. Brown regarding
that. That only involved Mr. Clark. And we’ll talk more about what all that was allowed
in for tomorrow when we get to the closing arguments and jury instructions. . . . That’s
allowed for a limited purpose.”
3. Relevant Jury Instructions
Prior to closing arguments, the trial court instructed the jury with a modified
version of CALCRIM No. 375, in pertinent part, as follows: “The People presented
evidence that the defendant, Gerquan Clark, committed the crime of illegal possession of
17
a firearm in 2017.[11] [¶] . . . [¶] If you decide that the defendant, Gerquan Clark,
committed the uncharged offense, you may, but are not required to, consider that
evidence for the limited purpose of deciding whether: [¶] The defendant, Gerquan Clark,
knew that he possessed a firearm as charged in count four when he allegedly acted in this
case; [¶] OR [¶] That the defendant, Gerquan Clark, had a motive to discard the
firearm.[12] [¶] In evaluating this evidence, consider the similarity or lack of similarity
between the uncharged offense and the charged offense. [¶] Do not conclude from this
evidence that the defendant, Gerquan Clark, has a bad character or is disposed to commit
crime. [¶] If you conclude that the defendant, Gerquan Clark, committed the uncharged
offense, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant, Gerquan Clark, is guilty of illegal
possession of a firearm in this case. The People must still prove the charge beyond a
reasonable doubt.”13 (Italics added.)
Immediately prior to the commencement of closing arguments, the trial court
advised the jury: “I just wanted to alert you to the fact that the evidence that I told you
was considered, the one about the prior, the prior offense alleged as to defendant Clark,
he was in fact convicted of illegal possession of a firearm in 2017. And so that fact’s
been established. [¶] So I mention it to you only so you understand that evidence may be
used in connection with that, of the prior offense. Remember I gave you that instruction
11 As noted, the underlying facts occurred in 2016. The juvenile adjudication took place
in 2017.
12 The italicized language represents a modification regarding the theory of motive. The
bracketed language for motive in CALCRIM No. 375 reads: “The defendant had a
motive to commit the offense[s] alleged in this case.”
13 At the jury instruction conference, Clark’s attorney continued to object to the
admission of the section 1101(b) evidence. However, neither he nor Brown’s attorney
objected to the modified version of CALCRIM No. 375 given by the court.
18
about using it for a limited purpose. Okay. And what I’m talking about there, is the fact
that he was convicted of use of a firearm in 2017. That’s defendant Clark. [¶] I just
wanted to make sure that’s on the record and that you understand what I was referring to
when I was referencing that particular uncharged offense.”
B. Defendants’ General Contentions
Defendants both assert the trial court erred in admitting, pursuant to section
1101(b), evidence of Clark’s prior uncharged act of illegal possession of a firearm, to
prove knowledge and motive. They assert the jury was allowed to use the evidence as
propensity evidence proving that, because Clark possessed a real gun previously, he
possessed a real gun here.
C. Evidence Code Section 1101 and the Standard of Review
“As a general rule, evidence of uncharged crimes is inadmissible to prove the
defendant had the propensity or disposition to commit the charged crime. [Citations.]
‘The reason for this rule is not that such evidence is never relevant; to the contrary, the
evidence is excluded because it has too much probative value.’ [Citations.] ‘ “The
natural and inevitable tendency” ’ is to give excessive weight to the prior conduct and
either allow it to bear too strongly on the present charge, or to take the proof of it as
justifying a conviction irrespective of guilt of the present charge.” (People v. Hendrix
(2013) 214 Cal.App.4th 216, 238 (Hendrix).)
However, section 1101(b) provides for the admissibility of uncharged acts based
on noncharacter theories. Evidence of prior conduct is admissible when relevant to
demonstrate a fact other than disposition to commit a crime, “such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident.” (Evid. Code, § 1101, subd. (b); Hendrix, supra, 214 Cal.App.4th at p. 238.)
“[T]he admissibility of uncharged crimes depends upon three factors: (1) the
materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to
prove or disprove the material fact (i.e., probative value); and (3) the existence of any
19
rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other
[Evidence Code] § 352 concern).” (Hendrix, supra, 214 Cal.App.4th at p. 238, citing
People v. Lindberg (2008) 45 Cal.4th 1, 22 (Lindberg).) While courts “review for abuse
of discretion a trial court’s decision to admit evidence of prior conduct under section
1101, subdivision (b)” (People v. Reyes (2019) 35 Cal.App.5th 538, 550), as we have
previously noted, courts nevertheless subject other crimes evidence to “ ‘extremely
careful analysis.’ ” (Hendrix, at p. 238, citing People v. Ewoldt (1994) 7 Cal.4th 380,
404 (Ewoldt).)
D. Section 1101(b) Analysis
1. Materiality
a. Ultimate and Intermediate Facts
The first factor in determining the admissibility of uncharged act evidence is the
materiality of the facts sought to be proved. (Hendrix, supra, 214 Cal.App.4th at p. 238.)
“In order to satisfy the requirement of materiality, the fact sought to be proved or
disproved must be either an ultimate fact or an intermediate fact from which such
ultimate fact may be inferred. [Citation.] Elements of the offense and defenses are
ultimate facts.” (Hendrix, at p. 239.) Motive and the absence of mistake are intermediate
facts. (People v. Thompson (1980) 27 Cal.3d 303, 315, fn. 14 (M. Thompson); Hendrix at
p. 239.)
b. Knowledge – An Ultimate Fact
Defendants were charged with one count of possession of a firearm by a felon.
(§ 29800, subd. (a)(1).) Subdivision (a)(1) of section 29800 provides, insofar as relevant
here, “Any person who has been convicted of . . . a felony under the laws of . . . the State
of California . . . , and who owns, purchases, receives, or has in possession or under
custody or control any firearm is guilty of a felony.” This offense has three elements: (1)
the defendant possessed a firearm, (2) the defendant knew that he possessed the firearm,
and (3) the defendant had previously been convicted of a felony. (See Blakely, supra,
20
225 Cal.App.4th at p. 1052; CALCRIM No. 2511.) “Implicit in the crime of possession
of a firearm is that a person is aware both that the item is in his or her possession and that
it is a firearm.” (People v. Kim (2011) 193 Cal.App.4th 836, 846 (Kim), italics added
[discussing a probation condition that referenced former §§ 12021 & 12316].) A firearm
is “a device, designed to be used as a weapon, from which is expelled through a barrel, a
projectile by the force of an explosion or other form of combustion.” (§ 16520, subd.
(a).) “Thus, toy guns obviously do not qualify as a ‘firearm,’ nor do pellet guns or BB
guns.” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)14 Thus,
defendants’ knowledge that a firearm was possessed and that it was a real firearm is
material to the possession counts.
Attached to each robbery count were firearm enhancements. It was alleged that
Clark personally used a firearm within the meaning of section 12022.53, subdivision (b),
and, as to Brown, that a principal was armed with a firearm within the meaning of section
12022, subdivision (a)(1). These enhancements required the prosecution to prove,
beyond a reasonable doubt, that the object Clark pointed at the victims was indeed a
firearm and that Clark knew the object he had was a firearm and so did Brown.15
14 Pellet guns and BB guns are not firearms because, “instead of explosion or other
combustion, they use the force of air pressure, gas pressure, or spring action to expel a
projectile.” (Monjaras, supra, 164 Cal.App.4th at p. 1435.)
15 The trial court instructed the jury with both CALCRIM Nos. 3115 and 3146. As to
the personal use enhancement, the trial court instructed the jurors with CALCRIM No.
3146, in pertinent part: “Someone personally uses a firearm if he or she intentionally
does any of the following: [¶] 1. Displays the weapon in a menacing manner; [¶] 2.
Hits someone with the weapon; [¶] OR [¶] 3. Fires the weapon.” As to the arming
enhancement, the court instructed with CALCRIM No. 3115, in pertinent part: “A
principal is armed with a firearm when that person: [¶] 1. Carries a firearm or has a
firearm available for use in either offense or defense in connection with the crimes
charged in counts one, two, and three; [¶] AND [¶] 2. Knows that he or she is carrying
the firearm or has it available.”
21
Defendants’ knowledge that Clark possessed a firearm, and that it was a firearm, was
material to the firearm enhancements for the same reason such knowledge was material
to the felon in possession of a firearm count charged in count four as to both
defendants.16
By pleading not guilty, defendants placed all elements of the crimes charged, as
well as the elements of the firearm enhancement allegations, in dispute. (Hendrix, supra,
214 Cal.App.4th at pp. 239-240; citing, Lindberg, supra, 45 Cal.4th at p. 23 [“By
pleading not guilty, defendant placed all the elements of the murder as well as the
attempted robbery and hate-murder special-circumstances allegations in dispute at trial”];
Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4 [defendant’s plea of not guilty puts the elements
of the crime in issue for the purpose of deciding the admissibility of evidence of
uncharged misconduct, unless the defendant has taken some action to narrow the
prosecution’s burden of proof].)17 Thus, the uncharged act evidence concerning Clark’s
prior possession of a firearm was ostensibly offered for a material purpose relative to the
knowledge element of the charge in count four and the firearm enhancements.18 Whether
Clark knew he had a real firearm is a material fact.
16 Accordingly, because the prosecution bore the burden of proving, beyond a reasonable
doubt, that Clark knew the implement he possessed was a firearm (Kim, supra, 193
Cal.App.4th at p. 846), we disagree with Brown’s contentions that there “was no material
question as to whether Mr. Clark knew he possessed the gun” and “whether Mr. Clark
knew whether the gun was real or fake.”
17 Clark asserts that because he did not place his knowledge “in issue,” an uncharged act
could not be admitted to prove it. For this proposition, he cites an antiquated case,
People v. Perkins (1984) 159 Cal.App.3d 646, which stated: “ ‘The fact that an accused
has pleaded not guilty is not sufficient to place the elements of the crimes charged against
him “in issue.” ’ ” (Id. at p. 651.) Given the modern view that a not guilty plea places all
elements in dispute, we disagree with Clark’s outdated contention.
18 However, the same cannot be said about the prosecution’s in limine theory that the
evidence was admissible to prove the absence of mistake. We are aware of no case that
22
c. Motive Theory – An Intermediate Fact
The People’s motive theory for the admissibility of the prior gun possession under
section 1101(b) appears to be somewhat novel. They contend that because Clark learned
having a gun can result in penal consequences, he had a motive to get rid of the gun used
in the robbery. This theory departs from the norm regarding section 1101(b) motive
theory and the People cite no case supporting it.
As we have noted, motive is an intermediate fact, from which the existence of an
ultimate fact may be inferred. (Thompson, supra, 27 Cal.3d at p. 315, fn. 14; Hendrix,
supra, 214 Cal.App.4th at p. 239.) And for intermediate facts, “the materiality
requirement is satisfied only if the intermediate fact tends logically and reasonably to
prove an ultimate fact.” (Thompson, at p. 315, fn. 14, second italics added.) Though not
an ultimate fact put at issue by the charges, motive may be probative of such ultimate
has held that, by pleading not guilty, a defendant places the absence of mistake in dispute.
For purposes of section 1101(b), the absence of mistake is an intermediate fact, not an
ultimate fact like elements of an offense which are in dispute by virtue of a not guilty
plea. (See Hendrix, supra, 214 Cal.App.4th at p. 239.) Indeed, to even warrant an
instruction for mistake of fact, a defendant must raise a reasonable doubt that he made a
mistake about the fact in issue. (See People v. Mayberry (1975) 15 Cal.3d 143, 157.)
Regarding mistake of fact and uncharged act evidence, a leading commentator has
described the use of uncharged act evidence to negate such a claim as follows: “[t]he
defendant may concede the commission of the actus reus but deny the mens rea by
claiming an innocent mistake. In this situation, the prosecutor may be able to introduce
uncharged misconduct to negate mistake.” (1 Imwinkelried, Uncharged Misconduct
Evidence (rev. ed. 2020), § 5:33, p. 1 (Imwinkelried), italics added.) Thus, mistake of
fact must be placed in issue by some litigation conduct of the defendant—for example
here, by some assertion that a defendant believed a real gun was a replica. Here, neither
Clark nor Brown advanced a mistake of fact defense, and therefore the absence of
mistake was not a material fact. Consequently, Clark’s uncharged prior gun possession
was not admissible under an absence of mistake theory. Although the trial court ruled
that the evidence was admissible to demonstrate the absence of mistake, it did not include
that theory in its limiting instruction to the jury. And, on appeal, the People do not
advance absence of mistake as a theory of admissibility; rather they advance only
knowledge and motive, and, consequently, we focus the analysis that follows on those
theories.
23
issues as intent, identity or commission of the criminal act itself. (People v. Cage (2015)
62 Cal.4th 256, 274; People v. Megown (2018) 28 Cal.App.5th 157, 166 (Megown).)
Defendants assert that seeking to prove the motive to discard the gun was
improper because it did not relate to defendants’ motives to commit the crimes charged.
They argue that there was no direct relationship or nexus between the prior gun
possession and the charged offenses.
Relying on People v. Spector (2011) 194 Cal.App.4th 1335, defendants assert that,
in the context of section 1101(b), there are two categories of motive evidence. “In the
first category, ‘the uncharged act supplies the motive for the charged crime; the
uncharged act is cause, and the charged crime is effect.’ ” (Id. at p. 1381.) For example,
an uncharged theft might supply the motive to kill an eyewitness to the theft.
(Imwinkelried, Uncharged Misconduct Evidence (rev. ed. 2020), § 3.18, p. 3-128) The
evidence of Clark’s prior uncharged act does not fit within this category. There is
nothing to suggest that Clark’s act of being in constructive possession of a firearm in a
car with two other individuals in 2016 furnished Clark with a motive to possess a firearm
here.
In the second category of section 1101(b) motive evidence, “ ‘the uncharged act
evidences the existence of a motive, but the act does not supply the motive. … [T]he
motive is the cause, and both the charged and uncharged acts are effects. Both crimes are
explainable as a result of the same motive.’ ” (Spector, supra, 194 Cal.App.4th at
p. 1381.) Spector itself was an example of this second category. In Spector, the
defendant was charged with murder for the shooting death of a woman with whom he
was acquainted. The question at trial was whether the defendant committed implied
malice murder by killing the victim in the course of assaulting her with a firearm or
whether the victim shot herself, either committing suicide or killing herself accidently.
(Id. at p. 1342.) The trial court allowed testimony from five different women
acquaintances who were victims of armed assaults by the defendant over a 20-year
24
period. (Id. at pp. 1342-1343, 1372.) Under the circumstances of the murder, the Spector
court concluded that a jury could permissibly infer the defendant lost control in his
encounter with the murder victim as he had during the prior assaults and thus had the
same motive during killing as he had during those assaults. (Id. at p. 1384.)
While the Attorney General acknowledges that the prosecution’s motive theory
does not “fit neatly” into the two motive categories described in Spector, the Attorney
General further asserts that the prosecution’s theory did establish a direct link or nexus
between the commission of the prior offense and the charged crimes. We do not agree.
Here, there is nothing to suggest there is a motive that was the cause of both the
uncharged act—Clark being in constructive possession of a firearm in a vehicle with two
other people in 2016—and the charged offenses and enhancements here. Nor is there
anything, or, more accurately, anything beyond pure propensity, to suggest that a specific
motive caused Clark to be in possession of a firearm in 2016 and to be a felon in
possession of a firearm as charged here in 2018. Here, the prosecution’s theory
establishes a motive to do an act subsequent to the crime, not a motive to commit the
crime itself. Section 1101(b) should not have been used in that way here.
As we have noted, the motive contemplated by section 1101(b) is an intermediate
fact from which the existence of an ultimate fact can be inferred. Such ultimate facts
include elements of the offense such as intent, identity or commission of the criminal act
itself. (Megown, supra, 28 Cal.App.5th at p. 166.) Defendants were not charged with
disposing of the gun. Moreover, avoidance of punishment is not an ultimate fact.19
There is simply no direct link or nexus between the commission of the prior offense and
19 The Attorney General asserts that “Clark’s prior firearm possession offense was
probative to explain his motive in getting rid of the gun in order to complete the crime.”
(Italics added.) If the italicized portion of the People’s argument was a tacit invitation to
deem Clark’s alleged post-robbery act of disposing of the gun an element of the
robberies, we reject it.
25
the charged crimes. We conclude that the People have not satisfied the materiality
requirement for section 1101(b) motive evidence.
2. Probative Value
a. Knowledge Theory
The second factor in determining the admissibility of uncharged act evidence
under section 1101(b) is probative value—the tendency of the uncharged crimes to prove
or disprove the material fact. (Hendrix, supra, 214 Cal.App.4th at p. 238.) Probative
value goes to the weight of the evidence of the uncharged acts. (M. Thompson, supra, 27
Cal.3d at p. 318, fn. 20.) Probative value relative to section 1101(b) knowledge theory
sometimes turns on the degree of similarity between the uncharged act and the charged
crime. (M. Thompson, at p. 318.)
Defendants assert that Clark’s prior conviction was not similar to the charged
offenses and that it was not otherwise relevant to prove that, here, he was in possession of
a real gun when he robbed the victims. Brown asserts that nothing about Clark’s prior
offense provided proof of relevant knowledge in the charged offenses. Brown contends
that the defense at trial was that the prosecution failed to prove that the object described
by the victims was a real gun, and therefore Clark’s knowledge of the true character of
the gun, real or fake, was not at issue.
In Hendrix, supra, 214 Cal.App.4th 216, we discussed section 1101(b) knowledge
theory and the similarity consideration. There, the prosecution was allowed to admit
evidence of the defendant’s prior run-ins with law enforcement on the theory it was
probative of the knowledge element in the charged offense, resisting an executive officer
by use of force or violence. (Id. at p. 221; § 69.) That offense required that the
prosecution prove the defendant knew the person he resisted was a police officer and
knew that the officer was engaged in the performance of his duty. (Hendrix, at p. 237.)
The defense was that the defendant may have believed the victim police officer who
responded to an altercation the defendant had with private security guards was just
26
another private guard. Specifically, he contended that, because his vision was affected by
pepper spray the private security guards had earlier deployed, he was intoxicated, the
nighttime lighting was not good, and the security guards wore black uniforms and the
police wore navy blue uniforms, he might have confused the victim police officer for
another private security officer. (Id. at pp. 228, 240.) The prosecution was permitted to
introduce evidence of prior encounters the defendant had with the police under section
1101(b) to show that defendant knew the victim was a police officer and to rebut mistake
of fact. (Id. at p. 225.)
We noted in Hendrix that “[p]eople learn from their experiences” and “the
knowledge gained from such experiences can be retained and recalled in the future.”
(Hendrix, supra, 214 Cal.App.4th at p. 242.) Regarding similarity, we stated:
“ ‘Whether similarity is required to prove knowledge and the degree of similarity
required depends on the specific knowledge at issue and whether the prior experience
tends to prove the knowledge defendant is said to have had in mind at the time of the
crime.’ ” (Id. at p. 241, italics added; accord People v. Felix (2019) 41 Cal.App.5th 177,
185.)
Ultimately, we concluded it was error to allow the prior incidents in Hendrix. We
reasoned that, because the issue was whether defendant mistakenly thought the victim
officer was one of the private security guards he had encountered earlier, “the
admissibility of the uncharged offenses turn[ed] on whether the experiences the
defendant gained during those prior incidents prepared him to distinguish between
security guards and the police.” (Hendrix, supra, 214 Cal.App.4th at p. 243.) We
explained the previous encounters with uniformed police officers would have had
probative value if they had involved situations where the police issued commands and
used force to detain the defendant after he had been confronted by private security
guards; from such evidence, it could be inferred that the defendant learned from those
experiences that the police become involved after an escalating confrontation with private
27
security personnel, and because defendant had such knowledge, it was less likely he
mistook the responding police for security officers. (Ibid.) But none of the prior run-ins
with law enforcement involved altercations with private security. (Ibid.)
Here, the People assert that Clark learned to discern that a gun is real from the
prior incident. But the circumstances underlying Clark’s prior uncharged act were
dissimilar to the circumstances here and therefore the evidence had little tendency to
prove the knowledge required for the charged offense and enhancements.
First, Clark’s prior firearm possession was based on constructive, not actual
possession. Indeed, there was no evidence he actually had that gun in his hand at any
time. Thus, his possession in that case bore no similarity to his possession in this case.
Second, the gun in that case appears to have been very different from the gun used in this
case. J.R. described the gun defendant pointed at him as a “regular handgun,” “not too
big, not too small.” Both O.F. and G.N. described the gun as “small.” But the handgun
from the prior event was a .40-caliber Glock with an illegal extended magazine.
As we have previously noted, in section 1101(b) similarity analysis the similarities
between the uncharged and charged events “must be substantial enough to have probative
value.” (People v. Winkler (2020) 56 Cal.App.5th 1102, 1145, citing People v. Guerrero
(1976) 16 Cal.3d 719, 728.) “[T]he trial court ‘ “ ‘must look behind the label describing
the kind of similarity or relation between the [uncharged] offense and the charged
offense; it must examine the precise elements of similarity between the offenses with
respect to the issue for which the evidence is proffered and satisfy itself that each link of
the chain of inference between the former and the latter is reasonably strong.’ [Citation.]
If the connection between the uncharged offense and the ultimate fact in dispute is not
clear, the evidence should be excluded.” ’ ” (Winkler, at p. 1145, quoting People v.
Williams (2018) 23 Cal.App.5th 396, 419-420.) Here, the prior event and charged event
were similar in that defendant, in some form, possessed a handgun in each. But that is
where the similarity ends. The degree of similarity here was not substantial enough to
28
have probative value, and, given the dissimilarities, a connection between the uncharged
act and the ultimate fact of knowledge of the possession of a real gun has not been clearly
established. We simply cannot say that defendant learned anything from his constructive
possession of the .40-caliber Glock in the uncharged event that could be applied here.
Indeed, even without the dissimilarities, the inference the prosecution sought to
establish here was weak at best. The prosecution’s knowledge theory was that the prior
uncharged act tended to establish that defendant knew he was in possession of a real gun
when he robbed the victims here, and, based on this, the gun must have been real. But
the prosecution’s theory assumes a critical fact to prove that same fact. It assumes
defendant knew he had a real gun because he had a real gun. This knowledge theory is
like saying the defendant in Hendrix, based on his prior encounters with the police, knew
the victim of the section 69 charge was a police officer and, based on that alone, the
victim was, in fact, a police officer. Of course, in Hendrix, there was actual evidence
separate from the uncharged act evidence establishing that victim was a police officer.
(Hendrix, supra, 214 Cal.App.4th at p. 228.) Here, there is no direct evidence that the
object Clark pointed at the victims was a real gun. If it was not a real gun, his prior
constructive possession establishes nothing. If it was, nothing about the prior possession
establishes an inference Clark knew the object was a real gun.
Moreover, the People’s knowledge theory is at odds with their motive theory. If,
as the People assert, Clark learned from the prior offense that possession of a real firearm
could result in penal consequences, an inference could just as easily be drawn that he
used an inexpensive, easily obtainable replica gun when he robbed the victims here to
avoid those penal consequences. This competing inference detracts from whatever
probative value the uncharged act evidence had.
Our high court “has repeatedly noted that the probative value of other crimes
evidence must be substantial. ‘ “Since ‘substantial prejudicial effect [is] inherent in
[such] evidence,’ uncharged offenses are admissible only if they have substantial
29
probative value.” ’ ” (Hendrix, supra, 214 Cal.App.4th at p. 244; quoting, Ewoldt, supra,7 Cal.4th at p. 404.) “ ‘If there is any doubt, the evidence should be excluded.’ ”
(Hendrix, at p. 244, quoting M. Thompson, supra, 27 Cal.3d at p. 318.)
We conclude that any probative value Clark’s prior gun possession had on the
element of knowledge was insubstantial.
b. Motive Theory
Even assuming the People’s motive theory satisfied the materiality requirement,
the uncharged act evidence still lacked probative value as to motive.
Similarity is not necessary to admit uncharged act evidence on a section 1101(b)
motive theory. (People v. C. Thompson (2016) 1 Cal.5th 1043, 1115.) “ ‘The existence
of a motive requires a nexus between the prior crime and the current one, but such
linkage is not dependent on comparison and weighing of the similar and dissimilar
characteristics of the past and present crimes.’ ” (Ibid.) But the sole rationale under the
People’s motive theory here is that Clark, having been convicted of possessing a firearm
before, knew he could face additional charges and punishment if he was found to have a
firearm, thus he had a motive to discard the gun.
As we have noted, probative value goes to the weight of the evidence of the
uncharged acts. (M. Thompson, supra, 27 Cal.3d at p. 318, fn. 20.) Here, the evidence
had little weight. Indeed, a stronger inference can be drawn that defendants discarded the
object—whether it was a real gun or a replica—because it would have tied them to the
robberies, not because of fear of increased punishment. Indeed, people who commit
crimes are often motivated to discard evidence to avoid apprehension and punishment.20
20 Indeed, there was other evidence indicating defendants discarded evidence that would
tie them to the robberies: their clothes. When they entered the Burlington Coat Factory,
Clark was seen on the store surveillance recording putting on a shirt over his bare torso,
and both had on different tops when arrested than those described by the victims as worn
by the robbers.
30
This common motive is so widespread as to have little or no probative value. (See
People v. Alcala (1984) 36 Cal.3d 604, 634 (Alcala); see also Imwinkelried, supra, at
§ 3.18 [some motives, such as a desire to gain wealth or sexual satisfaction, are so
common that most courts routinely exclude such evidence, reasoning that evidence of
such widespread motives has little or no probative value on the issue of the defendant’s
identity].)
Again, we conclude the evidence of defendant’s prior gun possession had
insubstantial probative value.
3. Evidence Code section 352
The third factor to consider in determining the admissibility of uncharged act
evidence is the existence of any rule or policy requiring the exclusion of relevant
evidence, i.e., prejudicial effect or other Evidence Code section 352 concerns.21
(Hendrix, supra, 214 Cal.App.4th at p. 238.) “Not only must the probative value of other
crimes evidence be substantial, but the probative value must not be substantially
outweighed by the probability that its admission would create a serious danger of undue
prejudice under [Evidence Code] section 352.” (Hendrix, at p. 246.) “ ‘ “Evidence is
prejudicial within the meaning of Evidence Code section 352 if it ‘ “uniquely tends to
evoke an emotional bias against a party as an individual” ’ [citation] or if it would cause
the jury to ‘ “ ‘prejudg[e]’ a person or cause on the basis of extraneous factors.” ’ ” ’ ”
(Ibid.)
As we have concluded, the subject evidence here had insubstantial probative value
on the element of knowledge. And we have concluded that the evidence did not meet the
21 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
31
materiality requirement for motive, and even if it did, the probative value as to the theory
that defendant discarded the purported firearm after the robbery to avoid penal
consequences was insubstantial. Indeed, as to motive, our high court rejected a
somewhat similar motive theory some time ago in Alcala, supra, 36 Cal.3d 604.
In Alcala, the defendant was charged with the kidnapping and murder of a young
girl. Several prior instances of sexual misconduct involving young girls were introduced
under several section 1101(b) theories, including motive. As to motive, our high court
rejected the prosecution’s theory that the prior crimes were admissible to establish a
motive to kill the kidnap/murder victim to eliminate her as a witness because the prior
crimes might result in more severe punishment for the charged offenses. (Alcala, supra,
36 Cal.3d at p. 635.) The court wrote: “[T]he prosecutor argued in effect that
defendant’s prior crimes increased his incentive to eliminate [the kidnap/murder victim]
as a witness, since they might result in more severe punishment for the current offense.
We cannot accept the notion that evidence of past offenses is admissible on this basis. If
it were, one’s criminal past could always be introduced against him when he was accused
of premeditated murder in the course of a subsequent offense. The accused’s mere status
as an ex-criminal would place him under an evidentiary disability not shared by first
offenders. The prejudicial effect of the prior-crimes revelations would vastly outweigh
their slight and speculative probative value. It is just such dangers which the restrictions
on evidence of past offenses seek to avoid.” (Ibid.)
Discussing Alcala, our high court subsequently observed: “[I]n Alcala we were
concerned with the implications of allowing admission of evidence of past crimes for the
sole purpose of showing the defendant feared punishment as a repeat offender. We
reasoned such a policy would be unfair to repeat offenders because the highly prejudicial
nature of prior-crimes evidence would make it difficult for such offenders to receive a
fair trial, whereas the probative value of the evidence was slight.” (People v. Rogers
(2006) 39 Cal.4th 826, 864 (Rogers), italics omitted [factually distinguishing Alcala and
32
noting Alcala’s concerns about the highly prejudicial nature of prior-crimes evidence
were not implicated in Rogers; nor was the evidence offered for the impermissible and
speculative purpose of suggesting the defendant was worried about the implications of his
past criminal record].)
Similarly, as we have noted, common sense indicates that one who commits a
felony upon another wishes to avoid its detection and might do so by getting rid of
anything that could tie him to the crime. In our view, the People’s theory that Clark
discarded the alleged firearm to avoid penal consequences places Clark in the same
situation as the defendant in Alcala. According to the People, his mere status as a person
who was previously convicted of illegal possession of a firearm would be enough to
allow the admission of the evidence on the theory that he discarded the gun because he
feared greater punishment on the current offense. The same could be said of any
recidivist offender. In our view, the evidence was highly prejudicial and indeed, there
was a substantial danger that the prior uncharged act would convey to the jury that Clark
was someone who was likely to possess real firearms.
Moreover, inflammatory, unnecessary evidence concerning the type of gun Clark
was previously convicted of possessing added to the prejudicial effect. That gun, a .40-
caliber handgun, had an extended magazine with 15 rounds in the magazine. The jury
was told the magazine was in excess of the 10 rounds permissible under California law, a
clearly unnecessary and inflammatory fact. And further, not only was it loaded, but it
had a round in the chamber. Because the gun bore little resemblance to the gun used in
the instant robberies, we view the evidence concerning its description as prejudicial
overkill.
4. Section 1101(b) Analysis – Conclusion
In light of the lack of probative value of the prior gun possession evidence to
prove Clark’s knowledge that the object he pointed at the victims was a real firearm, the
33
seriously flawed motive theory, and the substantial danger of undue prejudice, we
conclude that the trial court abused its discretion in admitting this evidence.
E. Harmless Error Analysis
Defendants asserts that the admission of the evidence violated their federal
constitutional rights. They further assert that they were prejudiced by the admission of
the evidence whether prejudice is assessed under Chapman v. California (1967) 386 U.S.
18, 24 [17 L.Ed.2d 705, 710-711] (Chapman), implicated where a defendant’s federal
constitutional rights are violated, or under People v. Watson (1956) 46 Cal.2d 818, 836,
which provides the standard for state law evidentiary error. In the end, it does not matter
here which of these standards we apply because we conclude, as to the felon in
possession of a firearm and the firearm enhancements, defendants have been prejudiced
under the standard in Watson.
State evidentiary law error in admitting uncharged act evidence is reviewed under
the Watson standard. (Winkler, supra, 56 Cal.App.5th at p. 1164; Hendrix, supra, 214
Cal.App.4th at p. 248.) “ ‘[U]nder Watson, a defendant must show it is reasonably
probable a more favorable result would have been obtained absent the error.’ ” (People
v. Beltran (2013) 56 Cal.4th 935, 955 (Beltran); accord, Watson, supra, 46 Cal.2d at
p. 836.) “[T]he Watson test for harmless error ‘focuses not on what a reasonable jury
could do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’ ”
(Beltran, at p. 956.)
Defendants assert the jury’s determination that Clark possessed a real gun was
surely based on the impermissible propensity inference that, because Clark previously
possessed a gun, he likely possessed a real gun in this case. The evidence, according to
34
Brown, was prejudicial because it portrayed defendants as dangerous criminals.
Defendants maintain the trial evidence that Clark used a real gun was not strong in light
of Moran’s testimony as to the similarities in appearance between real and replica
firearms. Defendants further assert that there is at least a reasonable probability that, had
the evidence not been admitted, the jury would not have found, beyond a reasonable
doubt, that the gun, which was never found, was a real firearm. And they assert that the
prosecutor’s closing argument exacerbated the prejudicial effect of the admission of this
evidence. Clark asserts that the prosecutor’s arguments to the jury were “paradigmatic
propensity arguments.”
The Attorney General responds that any error in the admission of the evidence was
harmless under any standard. He maintains that the trial evidence relevant to whether the
gun was real supported the jury’s determination, and that defendants’ arguments that the
gun could have been a replica are speculative.
Regarding the gun, the victims testified that Clark pulled out a gun and demanded
money, wallets, and phones. Clark racked the slide of the gun. O.F. testified that the gun
looked real to him. J.R. and O.F. both testified Clark pointed the gun at them. O.F.
testified that the gun was pointed at his stomach. G.N. testified that at one point, the gun
was pressed against his left cheek. However, he did not remember whether it felt like
metal.
Moran testified that, with a replica firearm, one is able to rack the slide just like a
real firearm. He further testified that “[v]isually, unless it has that orange tip on it,
there’s really no way to tell” between a real and replica gun.
Through the uncharged act evidence, the jury learned Clark had been a passenger
in a car in which a firearm was discovered. Moreover, the firearm was a large caliber
weapon with an illegal magazine containing 15 rounds, in excess of the 10 rounds
permissible under California law, as well as one round in the chamber.
35
As we have previously noted, “[f]or purposes of determining whether the error
was harmless, we may consider whether the prejudicial effect is reduced by a
prosecutor’s closing argument.” (Hendrix, supra, 214 Cal.App.4th at pp. 249-250.)
“Conversely, we may consider whether a prosecutor’s closing argument to the jury
exacerbated the prejudicial effect. Any meaningful assessment of prejudice must proceed
in the light of the entire record, including how the evidence was used.” (Id. at p. 250.)
Here, after describing the trial testimony concerning the victims’ perceptions
about the gun, the prosecutor continued: “Was there a real gun? [¶] Both defendants
are felons.” (Italics added.) The italicized language strikes us as a propensity argument,
and it exacerbated the prejudicial effect of the evidence. The prosecutor then asserted
there would be no motive to discard a fake gun because “[y]ou don’t get in trouble for a
fake gun. Felons can possess fake guns. They can have Airsoft guns, they can have
pellet guns.” Thereafter, the prosecutor told the jury: “You cannot infer from this
uncharged offense that defendant Clark has a predisposition to commit crime or anything
like that. You don’t just assume he’s guilty because he committed a crime before. That
is not, and I repeat, it is not how this works.” (Italics added.) But that admonition
warning the jury not to infer “predisposition to commit crime” or that defendants are
guilty based on the prior gun possession did not tell the jury it should not infer
predisposition to possess real firearms.22 Moreover, in subsequently revisiting the
22 For the same reason, we conclude that, under the circumstances here, the trial court’s
instructions to the jury did not negate the prejudice. As noted, the day before closing
arguments, the trial court told the jury it did not want the jurors to infer “Gee, he
committed a gun crime violation before; therefore, he must be guilty in this case. [¶]
That’s not how you’re supposed to use that evidence. It’s for other reasons, knowledge
and other things. But don’t conclude from that that he must be guilty in this case because
he did it before.” (Italics added.) Similarly, the standard part of CALCRIM No. 375,
upon which the court instructed prior to closing arguments, told the jurors: “Do not
conclude from this evidence that the defendant, Gerquan Clark, has a bad character or is
disposed to commit crime.” (Italics added.) While telling the jury not to conclude Clark
36
matter, the prosecutor highlighted the irrelevant and prejudicial nature of the gun Clark
constructively possessed in 2016, noting for the jury: “It was loaded. . . . It was a real
firearm. Okay. Real firearm. Loaded. An extended magazine which had about 15 live
rounds in it. It was a .40 cal semiautomatic firearm and there was one in the chamber. It
was a loaded real gun.” Thus, she emphasized not merely the fact of the prior uncharged
act, but the particular dangerousness and illegality of the firearm involved. These matters
were not probative of any fact other than the premise that Clark, and, by extension,
Brown, were dangerous people who carried dangerous guns. The prosecutor explained
no other reason why the nature of the gun was something the jury should consider.
Instead, she then went on to say: “The reason why . . . I wanted to present this evidence
to you, is that the defendant has had a gun before. He’s gotten in trouble for a gun
before. You heard the judge just gave you notice that he’s been in trouble for this, that he
was convicted of this offense. [¶] And it’s because of that, because of him being in
trouble before and knowing that he can’t have a real firearm, that’s the motive in this case
to get rid of the real firearm that they used in the commission of this robbery. [¶] It’s all
the motive in the world.” (Italics added.) As we noted, our high court rejected a similar
theory in Alcala and reaffirmed rejection of that theory in Rogers, where the court noted
the prejudicial implications of allowing admission of evidence of past crimes for the sole
purpose of showing the defendant feared punishment as a repeat offender. (Rogers,
supra, 39 Cal.4th at p. 864, discussing Alcala, supra, 36 Cal.3d 604.) “[S]uch a policy
would be unfair to repeat offenders because the highly prejudicial nature of prior-crimes
evidence would make it difficult for such offenders to receive a fair trial, whereas the
probative value of the evidence was slight.” (Rogers, at p. 864.) Since our high court
appears to have rejected such a theory of admissibility on undue prejudice grounds, we
must be guilty in this case or is disposed to commit crime, the admonition did not
additionally tell the jury it should not conclude from the prior event that Clark was a
person who was disposed to possess or carry firearms.
37
must also reject prosecutorial argument to the jury advancing a similar theory on the
same grounds and conclude the argument adds to the prejudice in our harmless error
analysis.
Considering the evidence supporting the existing judgment as to the felon in
possession charge and firearm enhancements, we do not find it to be “relatively strong”
and the evidence supporting a different outcome “so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’ ”
(Beltran, supra, 56 Cal.4th p. 956.) Instead, we conclude it is reasonably probable that,
without proof of the prior uncharged act establishing Clark as someone who would have a
real gun, and the prosecutor’s related argument, the jury would have found the
prosecution did not prove, beyond a reasonable doubt, that Clark possessed a real firearm
so as to support the felon in possession of a firearm convictions and the firearm
enhancements as to both Clark and Brown. (Id. at p. 955; Watson, supra, 46 Cal.2d at
p. 836.)23
Accordingly, we shall vacate the convictions on count four, felon in possession of
a firearm as to both defendants (§ 29800, subd. (a)(1)), and the true findings on the
firearm enhancements as to Clark (§ 12022.53, subd. (b)) and Brown (§ 12022, subd.
23 We do not, however, conclude or imply that the evidence of the felon in possession
offense or the enhancements was insufficient to support the convictions and findings. As
this court has previously observed, firearms used in robberies are often never recovered
and circumstantial evidence alone is sufficient to support a finding that an object used by
a robber was a real firearm. (Monjaras, supra, 164 Cal.App.4th at p. 1436.) “[W]hen as
here a defendant commits a robbery by displaying an object that looks like a gun, the
object’s appearance and the defendant’s conduct and words in using it may constitute
sufficient circumstantial evidence to support a finding that it was a firearm within the
meaning of section 12022.53, subdivision (b). In other words, the victim’s inability to
say conclusively that the gun was real and not a toy does not create a reasonable doubt, as
a matter of law, that the gun was a firearm.” (Id. at p. 1437.)
38
(a)(1)), and remand the matter to afford the prosecution the opportunity to choose
whether to seek a new trial on count four and the firearm enhancements.24
II. Prosecutorial Misconduct
A. Use of Prior Acts as Propensity Evidence
Following closing arguments, both defense attorneys moved for a mistrial based
on the prosecutor’s closing argument, asserting that the prosecutor argued propensity.
Both defendants reprise that argument on appeal, and Brown separately asserts that other
portions of the prosecutor’s closing argument amounted to improper vouching for her
own credibility and disparaging his trial counsel. In light of our conclusion as to the
erroneously admitted section 1101(b) evidence and our reversal of the felon in possession
of a firearm count and the firearm enhancements on that ground, we need not separately
address defendants’ contentions regarding prosecutorial misconduct related to the
prosecutor’s propensity arguments. However, because Brown’s separate argument
relates to all the counts, we shall address it next.
B. Vouching for the Prosecution and Disparaging Defense Counsel25
1. Additional Background
Officer Reyes on cross-examination by Brown’s attorney was shown the cell
phone belonging to O.F. that was found by a married couple in the Burlington Coat
Factory parking lot. Reyes acknowledged that the booking envelope with the cell phone
24 Defendants in their prejudice analysis focus on the narrow issue of proof that the gun
was real supporting the felon in possession of a firearm count and the firearm
enhancements. They do not assert that the admission of evidence of Clark’s prior
uncharged act was prejudicial as to the robbery convictions. If they had, given the
testimony of the victims and the recovery of their property from Clark, Brown’s car, and
nearby his car, we would conclude the error was harmless as to the robbery convictions
under any standard.
25 Clark did not join in these arguments on appeal.
39
had a red label indicating a request for fingerprints. Reyes testified they are trained to put
a fingerprint label on evidence that needs to be printed. Also on cross-examination by
Brown’s attorney, Sergeant Young acknowledged that the evidence envelopes had red
stickers on them that said “Print.” He believed those stickers indicated a request for
fingerprints, but testified he did not know if that had been done.
In his closing argument, Brown’s attorney addressed the absence of fingerprint
evidence: “Where’s the fingerprints? We know that they printed it. Nothing was brought
in. Couple of possibilities. One, if they had fingerprints that showed that these men were
guilty, they would have shown it to you.” He continued, “What is in evidence is that they
have his fingerprints. What is in evidence is he has a prior felony. And what happens
when you get a felony or any kind of arrest? They do the fingerprints. What is in
evidence is all the things that they did print.” (Italics added.) Although there was no
evidence in the trial that any items had actually been processed for fingerprints, the
prosecutor did not object to this argument.
Instead, the prosecutor in rebuttal argued: “[defense counsel] said that prints were
done. There was no evidence of that. And I’m not allowed to hide anything. Okay. Not
a thing. I could lose my job and my law card.” (Italics added.) Brown’s attorney
objected on the grounds of vouching, and the trial court overruled the objection, stating in
front of the jury: “Well, I don’t think it’s vouching. I think there was a suggestion that
maybe the district attorney could have done something which was not done. So she’s just
explain[ed] what her role is, that’s not vouching.” (Italics added.) The prosecutor
continued her argument to the jury: “The suggestion was that the D.A. hid something,
which I find incredibly offensive and that was an awful argument for [defense counsel] to
make.” (Italics added.)
2. Brown’s Contentions
Brown asserts that the prosecutor committed misconduct in vouching for the
prosecution and disparaging defense counsel. Brown asserts that the prosecutor’s
40
remarks, in response to defense counsel’s fingerprint argument, that there was no
evidence fingerprinting was done was false, and her further castigation of defense
counsel’s arguments as “awful” and “offensive” was disparaging. Brown further argues
that the prosecutor vouched for her case when she stated she had nothing to hide and that
she could lose her job and her law license by hiding evidence. And he asserts that the
trial court endorsed the prosecutor’s improper vouching by its oral ruling in front of the
jury.
3. Analysis
a. Improper Vouching
“ ‘ “[A] prosecutor is given wide latitude to vigorously argue his or her case” ’
[citation] and ‘ “may make ‘assurances regarding the apparent honesty or reliability of’ a
witness ‘based on the “facts of [the] record and the inferences reasonably drawn
therefrom.” ’ ” ’ [Citation.] ‘Improper vouching occurs when the prosecutor either (1)
suggests that evidence not available to the jury supports the argument, or (2) invokes his
or her personal prestige or depth of experience, or the prestige or reputation of the office,
in support of the argument.’ [Citation.] Referring to facts not in evidence is ‘clearly’
misconduct ‘because such statements “tend[ ] to make the prosecutor [her] own witness—
offering unsworn testimony not subject to cross-examination. It has been recognized that
such testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury
because of the special regard the jury has for the prosecutor, thereby effectively
circumventing the rules of evidence.’ [Citations.]” [Citations.] “Statements of supposed
facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis
for reversal.” ’ [Citation.] We ‘view the statements in the context of the argument as a
whole.’ ” (People v. Rodriguez (2020) 9 Cal.5th 474, 480 (Rodriguez).)
The prosecutor’s remarks— that she was “not allowed to hide anything,” and that
if she did so she “could lose [her] job and [her] law card”— is an argument relying on
facts not in evidence. These comments also amount to improper vouching. For one, her
41
statement that she was not allowed to hide anything suggested that there was, in fact, no
fingerprint results for the jury to consider. In addition, the prosecutor “invoke[d] . . . her
personal prestige” in support of the argument by arguing she could lose her bar license if
she hid something. (See Rodriguez, supra, 9 Cal.5th at p. 480.)
In Rodriguez, our high court determined the prosecutor’s arguments that officers
who testified “would not lie because each would not put his ‘entire career on the line’ or
‘at risk’ constitute[d] impermissible vouching.” (Rodriguez, supra, 9 Cal.5th at p. 481.)
Our high court explained: “The prosecutor’s career-related arguments ‘convey the
impression that evidence not presented to the jury, but known to the prosecutor, supports
the charges against the defendant and can thus jeopardize the defendant’s right to be tried
solely on the basis of the evidence presented to the jury.’ [Citation.] The record here
does not contain any direct or circumstantial evidence about whether the officers ‘would
put’ their ‘entire career on the line’ or ‘at risk’ by giving false testimony. The officers
did testify that they had served for 17 and 20 years, but the length of an officer’s career
does not supply evidence that the officer would risk the most severe career penalty (being
fired) for testifying falsely. The prosecutor’s arguments on these topics are thus based
upon matters outside the record that were not subject to cross-examination.” (Ibid.)
Our case is obviously different from Rodriguez in that the prosecutor was speaking
not about law enforcement witnesses who testified, whether they would lie, and what
consequences they would face. Instead, she was speaking of herself, that she was not
allowed to hide anything, and that, if she did so, she could lose her license to practice
law. In making that argument, the prosecutor was relying on matters not in evidence and
was impermissibly vouching in doing so.26 And the danger posed by such an argument
26 We also note that the trial court’s ruling in front of the jury could have had the effect
of endorsing the prosecutor’s statement. There was no reason for the trial court to say
anything other than overruled at that point in time. And it could have stated the reason
42
that our high court discussed in Rodriguez is applicable here. The Rodriguez court
reasoned: “When a prosecutor argues beyond the record about the career risks of
untruthful testimony, the prosecutor invites the jury to fill in gaps in the evidentiary
record by reference to the jury’s own surmise based on the special reputation of law
enforcement agencies and officers for veracity, as well as suppositions about the special
insight prosecutors may have into law enforcement disciplinary procedures. The
prosecutor thus ‘invite[s] the jury to rely on the prestige of the government and its agents
rather than the jury’s own evaluation of the evidence.’ ” (Rodriguez, supra, 9 Cal.5th at
pp. 482-483.) The same can be said when a prosecutor argues her own career-related
risks of misconduct: she invites the jury to rely upon her prestige as a prosecutor and the
prestige of her office.
We conclude the prosecutor engaged in improper vouching.
b. Disparaging of Defense Counsel
“ ‘ “A prosecutor commits misconduct if he or she attacks the integrity of defense
counsel, or casts aspersions on defense counsel.” [Citations.] “In evaluating a claim of
such misconduct, we determine whether the prosecutor’s comments were a fair response
to defense counsel’s remarks” [citation], and whether there is a reasonable likelihood the
jury construed the remarks in an objectionable fashion.’ ” (People v. Seumanu (2015) 61
Cal.4th 1293, 1336-1337 (Seumanu).) “When a prosecutor denigrates defense counsel, it
directs the jury’s attention away from the evidence and is therefore improper. [Citation.]
In addressing a claim of prosecutorial misconduct that is based on the denigration of
opposing counsel, we view the prosecutor’s comments in relation to the remarks of
for its ruling later, outside the presence of the jury. Instead, the court’s comment that the
defense had suggested the prosecutor did something “that was not done” could have left
the jury with the impression that the prosecutor had not hidden evidence when there was
no evidence on the point one way or another.
43
defense counsel, and inquire whether the former constitutes a fair response to the latter.”
(People v. Frye (1998) 18 Cal.4th 894, 978.)
There was evidence that several items of evidence collected by law enforcement
were placed in booking envelopes which bore stickers requesting fingerprinting. Defense
counsel argued to the jury that “we know that they printed” and “[w]hat is in evidence is
all the things that they did print.” There was no evidence introduced to establish that
fingerprinting had actually been done. The prosecutor’s remedy to this improper
argument was to object on grounds that defense counsel was arguing facts not in
evidence.
Instead, responding to defense counsel’s argument, the prosecutor stated there
“was no evidence” that “prints were done,” a perfectly appropriate argument. But then
she said: “And I’m not allowed to hide anything. Okay. Not a thing. I could lose my
job and my law card.” She then stated that defense counsel’s argument was “incredibly
offensive and . . . an awful argument for [defense counsel] to make.” Again, the
prosecutor’s remedy was to object to defense counsel’s improper argument, not to
disparage counsel. We are reminded here of the old adage, “two wrongs don’t make a
right.”
Consequently, we conclude that these latter comments about defense counsel were
not “fair response” to defense counsel’s remarks. (See Seumanu, supra, 61 Cal.4th at
p. 1337.) The prosecutor would have done well to simply remind the jurors there was no
evidence the items were printed and that they were duty bound to decide the case based
only on the evidence and testimony they heard.
4. Prejudice
“Even where a defendant shows prosecutorial misconduct occurred, reversal is not
required unless the defendant can show he suffered prejudice. [Citation.] Error with
respect to prosecutorial misconduct is evaluated under” Chapman, supra, 386 U.S. 18,
“to the extent federal constitutional rights are implicated,” and under Watson, supra, 46
44
Cal.2d 818 “if only state law issues were involved. [Citation.] Chapman is implicated if
the prosecutor’s conduct renders the trial so fundamentally unfair that due process is
violated. [Citations.] Watson applies where the prosecutor uses ‘ “ ‘ “deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People
v. Fernandez (2013) 216 Cal.App.4th 540, 564.)
Brown asserts that, because prosecutorial misconduct violated his constitutional
rights, Chapman applies, he sustained prejudice under that standard, and all of his
convictions must be reversed. Brown asserts that he was prejudiced by the prosecutor’s
misconduct because the evidence of his presence at the robberies was circumstantial. He
asserts that the evidence of his presence at the robberies—items taken were found in his
car—was equally consistent with the theory that he merely gave Clark a ride to
Burlington Coat Factory. The Attorney General responds that any prosecutorial
misconduct was harmless under any standard.
At trial, J.R. and O.F. both identified Clark as the man who pulled out the gun
during the robbery. J.R. affirmatively identified Brown as the other man. The men took
various items from the victims and then left.
O.F.’s wife tracked O.F.’s phone to Burlington Coat Factory. At that location, less
than 90 minutes after the robbery, police set up to watch what turned out to be Brown’s
green Acura.
As law enforcement observed the scene, Brown approached his car from the store.
When Brown saw a police officer, he turned around and walked away. This behavior
evinced a consciousness of guilt. After Brown was detained, he was sweating profusely,
“[k]ind of frantic,” and very nervous – additional evidence from which consciousness of
guilt could be inferred.
Shortly thereafter, Brown’s cousin, Clark, came out of the store, and, by this time,
there were police officers throughout the parking lot. Clark went back into the store but
45
he too was detained. Clark was found to be in possession of some currency and J.R.’s
cell phone.
On the store’s surveillance video, Brown could be seen entering the store first
wearing a red shirt. Approximately 10 seconds later, Clark came in, bare-chested, putting
on a white T-shirt. Based on Clark putting on a shirt, it could reasonably be inferred that
he, and Brown, had changed clothes.
In Brown’s Acura, police found G.N.’s identification card and lanyard. G.N.
testified that his lanyard as well as the cell phone he had was taken by the person who did
not have the gun. G.N.’s and O.F.’s cell phones were both found on the ground near
Brown’s car.
At a showup, J.R. identified both Clark and Brown. O.F. recognized Clark as the
man who had been holding the gun. Clark and Brown are cousins. Under the
circumstances, we conclude these identifications were credible notwithstanding Loftus’s
eyewitness identification testimony.
Brown argues that the circumstantial evidence was equally consistent with the
theory that he merely gave Clark a ride to Burlington Coat Factory. To that, we note two
things. First, while the evidence establishes Brown gave Clark a ride to the store, J.R.’s
identification of Brown shortly after the robbery and the presence of an item of stolen
property in Brown’s car taken by the perpetrator who did not have a gun proves Brown
did more than furnish Clark a ride to do some shopping. Second, there is no evidence
establishing that Brown picked up Clark somewhere and “merely” gave Clark a ride to
the store.
Based on the admissible evidence, we conclude that the prosecutor’s misconduct
was harmless as to the robbery convictions under any standard. Under Chapman, the
“reviewing court must reverse the conviction unless, after examining the entire cause,
including the evidence, and considering all relevant circumstances, it determines the error
was harmless beyond a reasonable doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 3
46
(Aledamat).) To determine whether the People have satisfied their burden of proving the
error was harmless beyond a reasonable doubt, “we examine the entire record and …
reverse if there is a ‘ “ ‘reasonable possibility’ ” ’ that the error contributed to the
verdict.” (People v. Reese (2017) 2 Cal.5th 660, 671 (Reese), citing People v. Aranda
(2012) 55 Cal.4th 342, 367 (Aranda).) Based on this evidence, there is no reasonable
possibility that the prosecutor’s remarks—that she was not allowed to hide anything, that
she could lose her job and her law card if she did, and that Brown’s attorney’s arguments
were “incredibly offensive” and “awful” from her perspective—contributed to the verdict
as to the robbery convictions.
According to Brown, the fingerprinting evidence was “crucial” because it
“highlighted the lack of direct evidence that [Brown] was at the scene of the robbery.”
One item that was in a booking envelope with a label indicating a request for fingerprints
was O.F.’s cell phone. Another was G.N.’s cell phone. Another item was G.N.’s
California identification card. That there was no evidence connecting these items to
Brown through fingerprints is essentially inconsequential given the other admissible
evidence connecting him to the robberies.
We conclude that it is not reasonably possible that the prosecutor’s remarks
contributed to the verdict. (Reese, supra, 2 Cal.5th at p. 671; Aranda, supra, 55 Cal.4th
at p. 367.) The prosecutor’s remarks were harmless beyond a reasonable doubt.
(Chapman, supra, 386 U.S. at p. 24; Aledamat, supra, 8 Cal.5th at p. 3.)
III. Brown’s Cumulative Error Claim
Brown asserts that the cumulative effect of the errors discussed in parts I. and II.
of the Discussion, ante, require reversal.
The premise behind the cumulative error doctrine is that, while a number of errors
may be harmless taken individually, their cumulative effect requires reversal. (People v.
Bunyard (1988) 45 Cal.3d 1189, 1236-1237, disapproved on another ground in People v.
Diaz (2015) 60 Cal.4th 1176.) “In examining a claim of cumulative error, the critical
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question is whether defendant received due process and a fair trial.” (People v. Sedillo
(2015) 235 Cal.App.4th 1037, 1068; accord, People v. Rivas (2013) 214 Cal.App.4th
1410, 1436 (Rivas).)
Taking all of Brown’s contentions into account, we are satisfied that he received a
fair trial as to the robbery counts. Given the direct and circumstantial evidence
supporting his convictions on those counts, we conclude Brown suffered no prejudice as
to the robberies. He was “ ‘entitled to a fair trial but not a perfect one.’ ” (Rivas, supra,
214 Cal.App.4th at p. 1437, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
IV. Brown’s Prior Prison Term Enhancement
Brown asserts, and the Attorney General concedes, that the matter should be
remanded so the trial court may strike his section 667.5, subdivision (b), one-year prior
prison term enhancement, which did not involve a sexually violent offense, given the
statutory amendment brought about by S.B. 136. We agree defendant is entitled to the
ameliorative benefit of S.B. 136 since that law became effective while his appeal was
pending. (People v. Gastelum (2020) 45 Cal.App.5th 757, 761, 772; People v. Winn
(2020) 44 Cal.App.5th 859, 872-873; People v. Lopez (2019) 42 Cal.App.5th 337, 341.)
And because the trial court did not impose the maximum sentence on the base term on
one of the robbery counts and dismissed a prior serious felony conviction enhancement
under section 667, subdivision (a), we agree remand for resentencing is appropriate. (See
Gastelum, at p. 772, citing People v. Buycks (2018) 5 Cal.5th 857, 893 [when error
affects part of a sentence we must remand for a full resentencing on all counts and
allegations].)
DISPOSITION
Defendants’ convictions on count four are reversed and the sentences previously
imposed thereon and stayed pursuant to section 654 are vacated. The true findings on the
section 12022.53, subdivision (b), firearm enhancement allegations asserted against Clark
are struck and the sentences imposed thereon vacated. The true findings on the section
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12022, subdivision (a)(1), firearm enhancement allegations asserted against Brown are
struck and the sentences imposed thereon vacated. Brown’s section 667.5, subdivision
(b), prior prison term enhancement is struck, and his case is remanded for resentencing.
As to both defendants, the matter is remanded to the trial court for a new trial on count
four and the firearm enhancement allegations attached to counts one through three, or for
resentencing should the People decide not to retry count four and the firearm
enhancement allegations. Thereafter, the trial court is directed to prepare an amended
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
/s/
MURRAY, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
HOCH, J.
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