(Super. Ct. No. 07F07863)
The opinion of the court was delivered by: Raye , P.J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Gregory Summers of robbery, and the court found true allegations that he had two prior serious felonies and strikes. (Pen. Code, §§ 211, 667, subds. (a), (b)-(i), 1170.12) The trial court sentenced him to prison for 10 years plus 25 years to life. Defendant timely filed this appeal.
Defendant contends the trial court improperly allowed the introduction of uncharged conduct evidence, and failed to instruct on an included offense. We shall affirm.
The victim, Belinda S., testified she took a friend to a medical office in downtown Sacramento for a counseling session. She waited upstairs, on a bench by a bay window, by herself. A man walked up and asked her where the reception area was, and they spoke for a couple of minutes. She thought the man was "slow and retarded" based on his speech. The man thanked her and went downstairs. About 30 seconds later, he returned, "using profanity and said he had a gun, he was gonna kill me." He sounded deranged, speaking "in a low tone, angry[,] almost possessed." He walked up to her until his groin was in her face and he put his hand, covered in a white cloth, against her neck, "saying that that was the gun that he was going to kill me with and he was hitting me." She felt an object she took to be a weapon pressed against her. He smelled of alcohol. The man asked if she had money, and after she told him to take "whatever he wanted" he grabbed her bag, exhibit 12, and ran downstairs. She screamed and someone called 911. Her checkbook and about $150 to $200 were in her bag. The victim identified defendant in court, and had made a "very confident" field identification. She identified exhibit 20-A-1 as depicting a cap similar to the one the man wore, and exhibit 20-B-1 as a shirt similar to the one the man wore.
A marriage and family counselor testified that on August 14, 2007, he was counseling a patient at his office at 820 18th Street when he heard screaming. He opened the door and saw his patient's companion, distraught and screaming, and she said, "he took my purse" and "he just left." The counselor ran outside and found a cap in the alley, depicted in exhibit 20-A-1, which he turned over to the police.
A woman taking out some trash in the alley saw a man "curled up underneath the stairwell, and he was holding a purse." Exhibit 8 depicted the stairs. After she deposited her trash, the man had left, leaving a purse, exhibit 12, behind. She recognized exhibit 20-B-1 as the man's shirt.
Officer Larry Borja testified the victim was crying and shaking when he arrived. She told him the man took "about $40," "some twenties and some ones."
Officer Jeffrey Babbage responded on horseback and detained defendant. Officer Jacob Casella found a cocaine pipe in defendant's pocket, and Officer Casella attended a field identification where the victim "positively" identified defendant. Exhibit 20-B-1 was the shirt defendant wore, and Exhibit 20-A-1 depicted a hat Officer Casella was given at the scene. California Highway Patrol Officer James Mann found the victim's purse under the stairwell depicted in exhibit 8. The purse had scissors and a white cloth that were not the victim's.
Doris M. testified that on July 17, 1999, she took her grandson to the IMAX theater in downtown Sacramento, and parked in a garage. When she got out of her car, a man grabbed her, and although she fought back, he took her purse. Later that day she identified the man. A peace officer testified the garage was at 13th and I Streets, and that Doris M. identified a man about a half-hour later. A fingerprint expert established that defendant was the man arrested for Doris M.'s robbery.
In the middle of Doris M.'s testimony, the trial court instructed the jury that it could, but need not, use the evidence to show defendant's intent or plan in the current case, and in doing so the jury should consider the similarity or dissimilarity between the uncharged and charged incidents. The trial court reminded the jury of this limited use of the evidence at the end of the case.
Dr. Albert Globus testified defendant had a mental illness consisting of a memory defect that induced him to self-medicate with drugs and alcohol, leading to "a primary diagnosis of some type of psychosis aggravated by his drug use."
Defense counsel argued the evidence did not show defendant intended to take the purse "until after using the force or fear," and thus was not guilty of robbery. Defendant may have hit the victim, but he did not demand money while doing so. Counsel argued, "here we just had an assault and battery go on. Maybe a threat to kill. I don't know. But stuff that's not charged." Counsel ...