IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT El Dorado
May 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LOGAN SHARP, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. S09CRF0042, S05CRF0355)
The opinion of the court was delivered by: Hull ,j.
P. v. Sharp CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Logan Sharp was convicted of second degree robbery (Pen. Code, § 211; undesignated statutory references that follow are to the Penal Code). The trial court sustained prior strike and serious felony allegations, and sentenced defendant to an 11-year prison term.
On appeal, defendant contends the trial court erroneously admitted rebuttal testimony, trial counsel was ineffective in failing to request a pinpoint cautionary instruction, and that the trial was tainted by cumulative error. We affirm the judgment.
FACTS AND PROCEEDINGS
On February 8, 2009, a man wearing a hooded sweatshirt and a bandanna entered the Alpine Liquor store in South Lake Tahoe between 10:00 and 11:00 p.m. The man brandished a gun and demanded that the clerk put money in a bag. The clerk refused, thinking it was a joke. The man left. A person robbed another South Lake Tahoe Liquor store, the Bottle Shop, at around 10:57 p.m. that evening. About $1,500 in cash was taken from the Bottle Shop.
Stacie Ward knows defendant and is Garrett Churchill's fianceee. She and Churchill moved to his friend Andre's apartment in January 2009 after Churchill refused to serve a jail sentence.
According to Ward, Churchill and defendant entered the apartment's front door in a jittery and excited state one night. Churchill said he had gone to the Alpine Liquor store and tried to rob it, but the clerk laughed at him, so he then went to the Bottle Shop, where he had more success. Defendant was present during the conversation, and stayed in the apartment for about an hour.
Later, defendant suggested that Ward and Churchill go to Gardnerville. They agreed, and defendant drove them and another person in his Dodge Durango. After dropping the other passenger off, defendant drove Ward and Churchill towards Gardnerville, but was stopped by the Highway Patrol.
Defendant was stopped for speeding in a white Dodge Durango at 12:57 a.m. on February 10, 2009. Defendant's driver's license was limited to driving to and from work or to and from his DUI class. The Durango's tire treads matched tread marks found in the snow at the Alpine Liquor store after the attempted robbery.
Defendant's friend Garret Churchill testified that he tried to rob the Alpine Liquor store on February 8, 2009. Churchill showed a pistol to the store's clerk, who laughed at him and said it was a joke. The clerk refused to give him any money, so Churchill left the store and returned to the Durango, which was parked by the Tahoe Donut shop. Defendant was the driver.
Churchill, still driven by defendant, next went to the Bottle Shop. On the way to the Bottle Shop they passed police cars going to Alpine Liquor. After they parked across the street from the Bottle Shop, Churchill left the Durango, entered the store, and demanded money. The clerk gave him money, Churchill got in the Durango, and they went back to Andre's house, where Ward was waiting.
Defendant testified that he would drive Churchill around because Churchill did not have a car. Churchill called defendant almost every day to ask for rides, and defendant would accommodate him once or twice a week.
Churchill called defendant on February 8 and asked him to come over so Churchill could see a friend. He had borrowed about $400 from defendant a couple of weeks before, and told defendant he could pay some of the money back after collecting from the friend.
Churchill first directed defendant to Churchill's old apartments to look for another neighbor. Churchill came back after a few minutes and told defendant he did not find him. Defendant next drove Churchill back to town, where Churchill continued to look. Defendant drove to a house; Churchill got out and knocked on the door, but there was no answer, so Churchill returned to the car. Next, Churchill directed defendant to the Tahoe Donut shop, where defendant parked and Churchill left the Durango, returning more than five minutes later.
Churchill then directed defendant to an apartment or motel across from the Bottle Shop. Defendant did not see where Churchill went when he left the Durango. Churchill returned within a few minutes, and defendant took him to Andre's. Defendant was agitated when he arrived at Andre's apartment because he had to drive all over town.
Defendant never heard Churchill tell Ward that he tried to rob the Alpine Liquor store and robbed the Bottle Shop. At no point that night did Churchill tell defendant about his plans to rob either store. He denied driving with Churchill to commit robberies.
Defendant presented evidence he attended a court mandated class on driving under the influence on February 9, 2009. Defendant's father testified that defendant worked for him since December 2008 and that his attendance was good. Defendant worked weekends for a roofing company in Gardnerville.
Churchill testified on rebuttal that he and defendant first went to the Swiss Mart off Emerald Bay Road, but left because it was closed, and then drove to Alpine Liquor. After Churchill told defendant to park by Tahoe Donut, he got out and tried to rob Alpine Liquor. Churchill next told defendant to go towards Ski Run, where he could pick up some money.
As defendant drove, he asked Churchill, "How much did you get?" Churchill believed he told defendant that he got nothing. As they drove to the Bottle Shop, Churchill tried to get defendant to agree to rob the store. Churchill told defendant it would be okay, as Churchill robbed stores many times before and never got caught. Defendant was initially resistant, but eventually agreed to the robbery.
Churchill directed defendant to the Bottle Shop once they passed the Ski Run area. He told defendant to park by some nearby apartments in order to avoid surveillance cameras. Churchill then got out and robbed the Bottle Shop, after which they returned to Andre's. He gave $500 to defendant when he was arrested, and told him to take care of Ward and get the Durango out of impound.
Churchill said he got a plea deal, getting a three-year sentence instead of a possible 15- to 17-year term because he was honest and worked as an informant. He admitted falsely telling a defense investigator that defendant knew nothing about the robberies. Churchill was in jail at the time and was afraid of being labeled as a snitch; he called the defense investigator at the suggestion of another inmate at the jail. Churchill believed a snitch was someone who informed on his partner in crime after being arrested.
Defendant testified on surrebuttal that Churchill never used the term "robbery" when they left Alpine Liquor. Churchill did not give defendant any money when he was arrested.
I The Rebuttal Testimony
Defendant contends the trial court committed prejudicial error by allowing Churchill's rebuttal testimony.
At an Evidence Code section 402 hearing after the defense rested, defendant objected to Churchill being allowed to testify on rebuttal about any conversation he had with defendant regarding the robbery while defendant drove him to the Bottle Shop. Defendant argued this testimony was not rebuttal, and should have been presented during the People's case-in-chief. The trial court found defendant's testimony that he had no conversation about the robbery with Churchill opened the matter for rebuttal, and found the People had made a successful offer of proof showing a basis for Churchill to testify on rebuttal.
Rebuttal evidence is generally restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions not implicit in his denial of guilt. (People v. Carter (1957) 48 Cal.2d 737, 753-754.) The rule serves to avoid confusion through the orderly presentation of evidence, to prevent a party from magnifying evidence by dramatically introducing it late in the trial, and to avoid unfair surprise that can result when a party is confronted with an additional piece of crucial evidence at the end of the trial. (Id. at p. 753.) The decision whether to admit rebuttal evidence over an objection of untimeliness is a matter entrusted to the trial court's discretion, which cannot be reversed absent a showing of abuse. (People v. Mayfield (1997) 14 Cal.4th 668, 761.)
Defendant argues Churchill's rebuttal testimony addressed defendant's knowledge of Churchill's intent, which the People had to prove when prosecuting defendant on an aiding and abetting theory. (See People v. Beeman (1984) 35 Cal.3d 547, 560 [aiding and abetting require knowledge of perpetrator's criminal purpose and intent or purpose to encourage or facilitate the offense].) According to defendant, Churchill's rebuttal testimony simply addressed assertions which are implicit in defendant's denial of guilt, and therefore should have been presented in the People's case-in-chief.
Defendant's direct examination contained a detailed account of where he drove Churchill which contradicted Churchill's initial testimony on several points. His testimony that he and Churchill never discussed the robbery at any point during their trip likewise is not implicit in his denial of guilt, but is instead new evidence attacking the People's case. After all, the People could not know what defendant was going to say to meet the evidence against him until he said it. Although Churchill's rebuttal testimony might have been admissible during the People's case-in-chief, it was permissible rebuttal evidence in light of defendant's testimony. It was not an abuse of discretion for the trial court to allow Churchill's rebuttal testimony.
Defendant further asserts the rebuttal testimony violates his federal constitutional rights to due process and a fair trial. His contention is forfeited by failing to raise a constitutional objection at trial. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) It is also without merit as the rebuttal testimony was properly admitted.
II Ineffective Assistance of Counsel
Defendant claims trial counsel was ineffective by not requesting a cautionary pinpoint instruction pointing out the inherent weakness in "snitch" testimony. He is wrong.
"To prevail on a claim of ineffective assistance of counsel, defendant 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.]'" (People v. Hart (1999) 20 Cal.4th 546, 623.) "Prejudice occurs only if the record demonstrates 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728.)
The jury was instructed with CALCRIM No. 335 that if the crimes were committed, Churchill was an accomplice, and: "Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence." The instruction also informed the jury that defendant could not be convicted of the charged crimes on the basis of the accomplice's testimony alone, and the jury could consider the accomplice's testimony only if it is supported by other evidence connecting defendant to the crime which is separate from the accomplice evidence.
Defendant asserts competent counsel would have asked for an additional instruction pointing out Churchill was a "snitch" and for the jury to view his testimony with distrust. As a model, defendant suggests section 1127a, subdivision (b), which provides that in a case when an in-custody informant testifies, the jury should be instructed as follows: "'The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.'"
Section 1127a is inapplicable, as it defines "in-custody informant" as "a person, other than a co-defendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution." (§ 1127a, subd. (a), italics added.) Churchill may have called himself a "snitch," but that term has no special meaning. He was an accomplice as a matter of law, and the jury was given the standard instruction on accomplice witnesses.
Defendant claims CALCRIM No. 335 might be adequate when the jury is reviewing the elements of the offense, but it is inadequate where, as here, the defense theory "revolves around credibility and who one should believe." He argues the instruction was insufficient because it failed to bring to the jury's attention the additional benefits gained by "fulfilling" the role of a "snitch and informant."
"Under appropriate circumstances, 'a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].' [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.)
The jury was already instructed to view Churchill's testimony with caution and not to consider the testimony unless it was corroborated. Additional instruction that his testimony should be viewed with distrust would be duplicative and argumentative, and would have been refused by the trial court. "Counsel's failure to make a futile or unmeritorious motion or request is not ineffective assistance." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) Counsel was not ineffective for failing to request an improper pinpoint instruction.
III Cumulative Error
Defendant asserts the cumulative prejudicial effect of the complained of errors compels reversal. As we have found no error, defendant's claim necessarily fails.
The judgment is affirmed.
We concur: RAYE , P.J. HOCH ,J.
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