P. Robinson CA2/3 ( 2023 )

Filed 6/16/23 P. Robinson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B315942
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA418953)
v.
YVONNE DIONNE ROBINSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed.
Case Barnett Law, Case C. Barnett for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
A jury found former police officer Yvonne Robinson guilty of
conspiracy to obstruct justice. On appeal, she contends that the
trial court erroneously excluded evidence of the investigating
detectives’ misconduct in an unrelated case, failed to provide an
adequate remedy for the prosecution’s alleged discovery violation,
and failed to give a unanimity instruction. We reject these
contentions and affirm.
BACKGROUND
I. Prosecution’s case in chief
Robinson was a police officer who, in 2012, worked in the
Detective’s Youth Services Division of the Long Beach Police
Department. Robinson’s sister was married to Phillip Jones,
whose brother was Prentice Jones (hereafter, Jones). Jones was
a self-admitted member of the Insane Crips, a gang in Long
Beach that was under a gang injunction.
While investigating the murder of Frank Castro, Long
Beach Detectives Todd Johnson and Malcolm Evans became
suspicious in 2012 that Robinson was giving confidential
information to Jones. During the murder investigation, the
detectives wiretapped the phones of various individuals,
including Donovan Halcomb. The detectives also released to the
public in March 2012 a composite sketch of five people, identified
by numbers one through five, whom they believed were involved
in Castro’s murder. On the evening detectives released the
sketch to the public, Robinson and Jones spoke on the phone for
about 10 minutes.
After detectives released the sketch to the public, the
detectives heard a phone call between Halcomb and Jones on
May 16, 2012. In that call, Jones said he was “just now talkin’ to
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the Police Lady,” and she was his “sister in law, that’s my
brother’s wife’s sister.” “She” told Jones “they really want one
and two,” and they wanted three, four and five to get to one and
two. Jones added that “[s]he said they will use them as a[n]
accessory” to murder. The reference to “police lady” alerted
detectives to the possibility of a leak in the department. Their
investigation of the possible leak led to their discovery that
Robinson’s sister was married to Jones’s brother.
A few weeks after the phone call between Halcomb and
Jones, Robinson and Jones called each other on May 31, 2012
nine times and exchanged 12 text messages.
To determine if Robinson was leaking information to Jones,
detectives developed a ruse around a recent assault that had
happened. In June 2012, James Welch told detectives that his
gang had disciplined him for cooperating with the police in an
earlier carjacking case. Welch said Jones and Sabrille Acklin,
whose gang moniker was Breeze, had beaten him. To see if
Robinson would contact Jones about the assault, detectives filed
a police report about the Welch assault using true and false
details of the crime. The report named suspects, including Jones.
After the report was filed, the authoring detective called
Robinson and asked for her opinion about Welch, as Robinson
had years before investigated a crime involving him. Robinson
told the detective that she did not think Welch would cooperate
and that she was already aware of the new case involving Welch.
After talking to the detective, Robinson accessed the report about
Welch. On June 4, 2012, Robinson and Jones called each other
eight times and exchanged five text messages. And on June 24,
2012, Robinson called Jones and told him to meet her at a
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specified location. Detectives went to that location and saw
Robinson get into a car registered to the mother of Jones’s child.
Four days later, Jones told Halcomb during a phone call
that there was a rumor going around about “niggas put hands on
a nigga” and “now they trying to, everybody who was there, they
trying to get them [for] . . . intimidating a witness.” When
Halcomb said this was “bullshit,” Jones replied that this was “for
real” and “that’s my ‘inside connect’, you know what I mean.”
At the time of these events, Detective Chris Zamora was in
charge of coordinating gang injunctions, including facilitating
removing gang members from an injunction through an opt-out
program. In late May to June 2012, Robinson asked the detective
to remove Jones from the gang injunction, telling him that Jones
had two young children, was in a stable relationship, was trying
to turn his life around, and was willing to remove gang tattoos.
At trial, Ronald Kirkwood, who had been good friends with
Jones, testified that Jones said he had a relationship with
someone—“a plug”—in the police department.
II. Robinson’s defense
Robinson testified in her defense. She grew up in Long
Beach and, at the time of trial, had been a police officer for 13
years. Although her sister is married to Phillip Jones, Robinson
does not talk to her sister “in that manner.” Robinson knew
Jones through her work in youth services and through her other
work as an event planner, as Robinson had planned events for
Jones’s relatives. Also, when Robinson learned that Jones was a
rapper, she asked him to perform at community events.
In August 2011, Jones asked Robinson about being
removed from a gang injunction, and she told him she would look
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into a program for that purpose. However, she left it to Detective
Zamora whether Jones qualified for the program.
In March 2012, Robinson was at Jones’s mother’s house to
plan a party. While there, Jones showed Robinson the composite
sketch that had been released to the public in connection with the
murder of Frank Castro. Jones asked Robinson if she knew the
people in the sketch, and she said she didn’t but that they should
turn themselves in. She also told him that if they were at the
murder scene they would probably be accessories. She did not
tell Jones that she knew who the people were in the sketch but
would not tell the police.
In the early part of June 2012 (around the time Welch was
beaten), Robinson noticed that Jones’s hand was swollen. Jones
explained that he had a one-on-one fight with someone because
the person had snitched on Jones’s friend. When Robinson asked
Jones how he knew that, Jones told her he had a police report but
wouldn’t say how he got it. Robinson told him that if he had
assaulted someone for snitching then that could be witness
intimidation. She looked up the Welch police report because the
detective who authored it asked her to look at it. When she saw
that Jones was a suspect in the crime, she thought that Jones
had lied to her.
Robinson denied having a romantic or sexual relationship
with Jones. She denied showing fellow officer Satwan Johnson a
picture of Jones on her cell phone in 2008 and saying she was
“ ‘fooling around’ ” with Jones.
III. Rebuttal
Officer Johnson testified that he has been a peace officer for
23 years. He used to be close friends with Robinson, and they
had worked together. In 2008, Robinson told him she was having
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a relationship with a younger man and showed him a picture of
the man. Years later, in 2019, Officer Johnson ran into a guy he
had grown up with. This guy was with two other men, one of
whom Officer Johnson recognized as the person Robinson had
said she was seeing in 2008. Although Officer Johnson knew
about the charges against Robinson, he thought the case was over
and did not mention what he knew to the investigating
detectives.
IV. Verdict and sentence
An information charged Robinson with one count of
conspiracy to obstruct justice and alleged 21 overt acts.1 (Pen.
Code,2 § 182, subd. (a)(5).) A jury found Robinson guilty as
charged. On August 25, 2021, the trial court suspended
imposition of sentence and placed Robinson on felony probation
for two years with various conditions, including that she perform
community service.
DISCUSSION
I. Exclusion of detectives’ testimony
Robinson contends that the trial court abused its
discretion and violated her due process rights by excluding
evidence of misconduct committed by the two detectives
investigating her case. In making this contention, Robinson
relies on the written motion she filed in the trial court, which is
in the record on appeal. The record on appeal, however, does not
1 Before trial, Jones pleaded guilty to the same crime.
2 All further undesignated statutory references are to the
Penal Code.
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contain the reporter’s transcript from that hearing.3 Thus, the
only record of the trial court’s ruling and its rationale is in the
minute order of the hearing, which simply states that the
detectives’ testimony would not be permitted.
The absence of the reporter’s transcript of the hearing
means we cannot adequately review Robinson’s contention. That
is, we review evidentiary rulings for an abuse of discretion.
(People v. Kovacich (2011) 201 Cal.App.4th 863, 884.) Under the
abuse of discretion standard, we will not disturb a trial court’s
ruling unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice. (Ibid.) Where the issue on
appeal involves the abuse of discretion standard of review, the
reporter’s transcript of the hearing or an agreed or settled
statement of it is “indispensable.” (Hood v. Gonzalez (2019) 43
Cal.App.5th 57, 79.)
Here, however, the record consists only of Robinson’s
written motion to introduce evidence concerning the misconduct
of Detectives Johnson and Evans in an unrelated murder case.
Robinson argued in the motion that evidence of the detectives’
misconduct was relevant to show why she was not forthcoming to
them when interviewed in this case, to impeach the detectives,
and to corroborate Robinson’s theory of the case. As to the
specifics of the proposed evidence, the motion suggested that the
detectives concealed evidence that their witness to the murder
was arrested for a gang-related robbery and that he was released
from custody without his case being given to the district attorney
3 Robinson states in her opening brief that the reporter’s
transcript of the hearing was “inadvertently omitted.”
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for filing. Robinson also submitted with her motion two letters
written by Judge Judith Meyer in 2018 to Long Beach’s chief of
police about an evidentiary hearing regarding the alleged
misconduct. In the first letter, Judge Meyer stated that after the
evidentiary hearing, she learned that information exonerating
the detectives had not been presented, so it now appeared that
the detectives conducted themselves appropriately. In the second
letter, Judge Meyer said that the first letter was a draft and was
inadvertently mailed. The judge clarified that she had no
relationship with the detectives and that her rulings were specific
to that case and did not reflect her opinion about the detectives’
credibility generally.
Robinson’s motion does not establish as a matter of law
either that the detectives committed misconduct in the unrelated
case or the admissibility of any misconduct in this case. In fact,
Judge Meyer’s letters suggest that the detectives did not commit
misconduct in the unrelated case. In any event, without knowing
what opposition the prosecutor presented to the motion and why
the trial court exercised its discretion to deny the motion, the
motion by itself is insufficient to overcome the presumption that
the ruling is correct and to satisfy Robinson’s burden as appellant
to present a sufficient record showing reversible error. (See
generally People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573;
Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“All
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.”].)
II. Discovery violation
This issue concerns Officer Johnson’s rebuttal testimony
that Robinson had a romantic relationship with Jones. Robinson
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contends that the prosecution untimely disclosed that evidence,
and the trial court’s remedy for the untimely disclosure was
insufficient to protect her right to a fair trial. As we now explain,
we disagree.
A. Additional background
On the evening of Robinson’s testimony on direct
examination, the prosecutor told the defense that it had just
learned Robinson had been romantically involved with Jones.
The next day, the prosecutor explained to the trial court that
after Robinson testified, Detective Evans told her to call Officer
Johnson. She did so, and that is when she learned about the
alleged relationship between Robinson and Jones. The
prosecutor thus argued that the evidence went to motive and
impeached Robinson, so she wanted to cross-examine Robinson
on this issue. And if Robinson denied the relationship with
Jones, then the prosecutor wanted to call Officer Johnson.
Defense counsel responded that Officer Johnson was part of
the prosecution team and therefore the evidence should have
been disclosed earlier.4 Counsel also argued that the evidence
should be excluded, but if it wasn’t, a mistrial should be granted
or he should be given a continuance to obtain information to
impeach Officer Johnson.
The trial court found that the proposed testimony was
impeachment evidence, and since impeachment evidence was not
necessarily discoverable, refused to exclude it. Instead, the trial
4 However, defense counsel agreed that the prosecutor was
unaware of the information until the night before and therefore
attributed no misconduct to her.
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court continued the case for two days to allow the defense to
investigate the issue.
B. Trial court did not abuse its discretion
Timely pretrial discovery promotes ascertainment of truth
and prevents trial by ambush. (§ 1054, subd. (a); People v. Bell
(2004) 118 Cal.App.4th 249, 256.) Discovery in criminal cases is
governed by California’s statutory scheme, unless otherwise
mandated by the federal Constitution or other statutory
provisions. (§ 1054, subd. (e).) The statutory scheme requires the
prosecution to disclose information in its possession or
information it knows to be in the possession of investigating
agencies. (§ 1054.1.) Information that must be disclosed includes
names and addresses of witnesses the prosecutor intends to call
at trial, the defendant’s statements, a material witness’s felony
conviction, exculpatory evidence, and relevant written or
recorded statements or reports of witnesses the prosecutor
intends to call at the trial. (§ 1054.1, subds. (a)–(f).) Disclosures
must be made at least 30 days prior to trial or, if the prosecution
obtains discovery within 30 days of trial, immediately. (§ 1054.7.)
If a party fails to comply with its discovery obligations, a
trial court may issue any order necessary to enforce the discovery
statutes, including immediate disclosure, contempt proceedings,
or a continuance. (§ 1054.5, subd. (b).) A witness’s testimony
may be excluded only if all other sanctions have been exhausted
(§ 1054.5, subd. (c)) and there is a showing of significant
prejudice and willful conduct motivated by a desire to obtain a
tactical advantage at trial (People v. Jordan (2003) 108
Cal.App.4th 349, 358).
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We review a trial court’s discovery rulings for an abuse of
discretion. (People v. Mora and Rangel (2018) 5 Cal.5th 442,
466.)
No discovery violation occurred here. We are first doubtful
that Officer Johnson was a part of the prosecution team, as
Robinson argues. Officer Johnson was not an express member of
the team investigating Robinson, and his mere status as an
officer of the Long Beach Police Department does not mean that
what he knew about Robinson’s relationship with Jones was in
constructive possession of the prosecution team. Robinson’s
reliance on People v. Lucas (2014) 60 Cal.4th 153, 273,5 does not
persuade us otherwise. In that case, the prosecution did not
disclose a police report about a prosecution witness striking his
wife. (Ibid.) In discussing whether the prosecution had
suppressed the report, the court noted that the police department
formed part of the prosecution team such that the prosecution
had constructive possession of the report. (Ibid.; see also Aguilar
v. Woodford (9th Cir. 2013) 725 F.3d 970, 980–983 [reports that
police dog had a history of mistaken identifications should have
been disclosed].) We discern a difference, however, between a
police report and Officer Johnson’s unreported eyewitness
testimony. But even assuming that the prosecution had a duty to
disclose Officer Johnson’s testimony, the prosecutor did not know
about it until after Robinson testified on direct examination. On
learning about the evidence, the prosecutor disclosed it
“immediately” as required by section 1054.7. (See, e.g., People v.
5 Disapproved on other grounds by People v. Romero and Self
(2015) 62 Cal.4th 1, 53 & fn. 19.
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Mora and Rangel, supra, 5 Cal.5th at p. 468.) The disclosure
therefore complied with the prosecution’s discovery obligations.
In any event, the trial court did not err by admitting Officer
Johnson’s testimony. A witness’s testimony should be excluded
only if other sanctions have been exhausted. (§ 1054.5, subd. (c).)
The trial court accordingly gave the defense a two-day
continuance to investigate Officer Johnson. The record does not
show that counsel was unable to do so in that time. Nor does the
record show that any desire on the part of the prosecutor to
obtain a tactical advantage motivated the delayed disclosure.
Instead, the prosecutor had no intention of calling Officer
Johnson to testify until after Robinson testified. (See, e.g., People
v. Mireles (2018) 21 Cal.App.5th 237, 248 [no “sandbagging”
where prosecutor interviewed witness during trial and
immediately provided interview notes to defense].) Indeed,
because Officer Johnson was under a defense subpoena, clearly
the defense knew about him.
Finally, it is unclear whether Robinson is asserting that the
prosecutor violated Brady v. Maryland (1963) 373 U.S. 83.
Although she cites that case, her argument under it is not well-
developed. In any event, Brady requires the prosecution to
disclose to the defense all exculpatory, material evidence known
to the prosecution team. Assuming that she is raising Brady
error, none occurred. Officer Johnson’s testimony was not
exculpatory. It was inculpatory. Further, the prosecutor did
disclose the evidence, albeit not within 30 days of trial.
Accordingly, no Brady violation occurred. (See, e.g., People v.
Verdugo (2010) 50 Cal.4th 263, 287 [no Brady error where
evidence not favorable to defense and was disclosed at trial].)
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III. Unanimity instruction
Robinson next contends that the trial court should have sua
sponte given a unanimity instruction because some jurors could
have believed she made an illegal request to have Jones removed
from the gang injunction but not believed she gave Jones
confidential information while other jurors could have believed
the opposite. We disagree that a unanimity instruction was
required.
A jury verdict in a criminal case must be unanimous.
(People v. Selivanov (2016) 5 Cal.App.5th 726, 751–752.) A
unanimity instruction prevents a jury from “ ‘amalgamating
evidence of multiple offenses, no one of which has been proved
beyond a reasonable doubt, in order to conclude beyond a
reasonable doubt that a defendant must have done something
sufficient to convict on one count.’ ” (People v. Russo (2001) 25
Cal.4th 1124, 1132.) However, “where the evidence shows only a
single discrete crime but leaves room for disagreement as to
exactly how that crime was committed or what the defendant’s
precise role was,” the jury need not unanimously agree on the
theory under which the defendant is guilty. (Ibid.) Stated
otherwise, the jury must unanimously agree that a particular
crime was committed, but unanimity is not required on how it
was committed. (Id. at p. 1135.)
“In deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on two
discrete crimes and not agree on any particular crime, or (2) the
evidence merely presents the possibility the jury may divide, or
be uncertain, as to the exact way the defendant is guilty of a
single discrete crime. In the first situation, but not the second, it
should give the unanimity instruction.” (People v. Russo, supra,13
25 Cal.4th at p. 1135.) In a conspiracy case, the question is
whether there were two discrete conspiracies or mere uncertainty
as to whether the defendant is guilty of a particular conspiracy.
(Ibid.) “If only one agreement existed only one conspiracy
occurred, whatever the precise overt act or acts may have been.”
(Ibid.)
The trial court must give a unanimity instruction sua
sponte where the circumstances of the case require one. (People
v. Covarrubias (2016) 1 Cal.5th 838, 877.) We review questions
of instructional error de novo. (People v. Sorden (2021) 65
Cal.App.5th 582, 616.)
Here, Robinson was charged with and there was evidence of
only one discrete crime: Robinson conspired to obstruct justice by
giving Jones confidential police information. In furtherance of
that conspiracy, Robinson’s overt acts included calling Jones and
exchanging texts with him, trying to get Jones removed from the
gang injunction, and communicating with him about the Castro
murder investigation and the Welch police report. Indeed, some
of those overt acts were not crimes; for example, Robinson’s overt
act of merely calling or texting Jones was not criminal but was
evidence of the conspiracy. (See People v. Epps (1981) 122
Cal.App.3d 691, 703 [series of acts individually considered may
not amount to a crime, but cumulative effect is criminal].) The
prosecutor thus explained that the overt acts “are not in and [of]
themselves crimes” and only one of them needed to be found true.
And contrary to Robinson’s argument, the jury did not have
to agree on a specific overt act to find her guilty of conspiracy.
(People v. Russo, supra, 25 Cal.4th at p. 1128.) The prosecutor’s
closing argument was consistent with this single theory of the
crime. She argued that Robinson was guilty of conspiracy to
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obstruct justice by giving confidential information to Jones and
that an element of the crime was Robinson committed an overt
act in furtherance of the conspiracy. Thus, at no time did the
prosecutor argue that there was more than one conspiracy. A
unanimity instruction was not warranted.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
HEIDEL, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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