IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 21, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GERALD WORMLY, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F05032)
The opinion of the court was delivered by: Robie , J.
P. v. Wormly
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Gerald Wormly was charged with three bank robberies that occurred within two months. The issue at trial was identity of the robber. A jury found him guilty of the last robbery and could not reach a unanimous verdict on the first two robberies. The court declared a mistrial as to those counts and sentenced him to 30 years to life in prison.
Defendant appeals, contending the court: (1) violated his right to due process in denying his motion to exclude one of the victim's positive identification of defendant; (2) violated his right to confront the witnesses against him because his counsel could not "appropriate[ly] and adequate[ly] cross-examine" one of the victims; (3) deprived him of his due process right to present a defense when it excluded third-party culpability evidence; and (4) erred in imposing certain fees without sufficient evidence of his ability to pay. Finding no merit in these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
U.S. Bank Robbery On May 1, 2008
Around noon, Gerald Bess was working as a teller at the U.S. Bank at Alhambra Boulevard and J Street in Sacramento. He was approached by an African-American man in his mid to late 20's who was 5 feet 9 inches tall and 150 pounds wearing a baseball cap. The man told Bess, "'I have a gun, give me all the money.'" Bess gave the man about $600, and the man walked out. Bess pulled the silent alarm. The robber was later seen wearing sunglasses and riding a mountain bike.
After police arrived at the bank, Detective Heather Hendrickson took Bess for an in-field show up of a suspect named Williams who matched Bess's description of the robber. Bess erroneously*fn1 identified Williams as the robber, telling police, "I am pretty sure that is him."
Police failed to document who had made the erroneous identification (i.e. Bess) and what exactly that person said when making the identification. Hendrickson had no independent recollection of the erroneous positive identification, but she did make an entry on the computer aided dispatching log that there was a "positive" identification of the suspect. She explained that before she would say it was a positive identification, "it would have to be pretty certain. [She] generally won't say that it is a positive identification if it's: I think it's him, or I am pretty sure it's him. It's got to be pretty certain for [her] to say that it's positive."
Citibank Robbery On June 16, 2008
In the morning, Minda Sedgwick was working as a teller at the Citibank on Alhambra Boulevard in Sacramento. She was approached by a black man in his late 20's to 40's who was between 5 feet 8 inches to 6 feet tall with a medium build and had gloves, sunglasses, and a baseball cap. He said he wanted to withdraw $150. She told him to swipe his card. He told her, "no, this is a robbery." He asked for all the money in her drawer. She gave him some $20 bills and her "dye pack." He then left the bank.
U.S. Bank Robbery On June 21, 2008
Bess was at his teller window when a person whom he believed to be the same man who robbed him before robbed him again. The robber was a black man in his late teens or late 20's, between 5 feet 8 inches to 5 feet 10 inches tall, weighing between 150 pounds to 190 pounds, with a baseball cap and glasses. He whispered to Bess, "'Getting robbed again.'" "'Give me all the big bills. Don't try any alarm shit, just give me the money.'" Bess gave him around $1,500. The robber was later seen on a bike wearing gloves.
On June 23, 2008, Bess was shown a photo lineup of suspects. He selected defendant's photo as the person who "without a doubt" robbed him on June 21 and on May 1. At trial, Bess again identified defendant as the man who robbed him.
The Court Did Not Err In Denying
Defendant's "Trombetta/Youngblood" Motion
Defendant contends the trial court violated his right to due process in denying his "Trombetta/Youngblood" motion to exclude as a sanction Bess's June 23 identification of defendant as the person who twice robbed the U.S. Bank. The motion was based on the police's failure to document the exact words of Bess's May 1 erroneous identification of Williams as the person who robbed the U.S. Bank. Defendant argued the exact words Bess used in making the erroneous identification were necessary because those words would have conveyed Bess's level of certainty of the identification. Defendant further argued the police's failure to document was in bad faith or at least negligent and as a sanction, Bess's subsequent positive identification of defendant should be excluded. The trial court denied the motion, finding the police's failure to document was only negligent and there was comparable evidence, so no sanction was necessary. As we explain, the court did not err because there was substantial evidence of comparable evidence and lack of bad faith.
Police have a duty under the federal due process clause to preserve evidence "that might be expected to play a significant role in the suspect's defense." (California v. Trombetta (1984) 467 U.S. 479, 488 [81 L.Ed.2d 413, 422].) To meet this standard, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at p. 489 [81 L.Ed.2d at p. 422].) When the evidence is only potentially useful, the failure to preserve such evidence is not a violation of due process unless the defendant proves bad faith on the part of the police. (Arizona v. Youngblood (1988) 488 U.S. 51, 57-58 [102 L.Ed.2d 281, 289].)
When reviewing a "Trombetta/Youngblood" motion, we apply the substantial evidence standard to factual determinations such as the availability of comparable evidence and the absence of bad faith. (People v. Roybal (1998) 19 Cal.4th 481, 510.) Here, there was substantial evidence of both these of determinations.
As to the comparable evidence, Bess testified the exact words he told the police when making the (erroneous) positive identification were, "I am pretty sure that is him." Hendrickson testified she had no independent recollection of the erroneous positive identification and had to rely on the computer aided dispatching log that stated she made an entry there was a "positive" identification. She explained that before she would say it was a positive identification, "it would have to be pretty certain. [She] generally won't say that it is a positive identification if it's: I think its him, or I am pretty sure it's him. It's got to be pretty certain for [her] to say that it's positive." As the trial court explained, Hendrickson's testimony "may have been even more beneficial" to defendant, as it cast Bess's identification as much more certain than did Bess's own words and, as such, would more easily call into question the subsequent positive identification that Bess made.
As to the lack of bad faith, substantial evidence supported this factual finding as well. At the evidentiary hearing on the motion, Detective Hendrickson testified she did not write a report that documented Bess's erroneous positive identification because "there was a miscommunication as to who was going to cover what. Bottom line, though, is that [she] should have written one." Thomas Shrum, who was the primary detective on the case, testified he did write a report that documented he had been told there had been a "positive identification" and later determined the positive identification was false. The report, however, did not state it was Bess who made the erroneous positive identification. This evidence showed at most the police negligently failed to include in Shrum's report that it was Bess who made the erroneous identification and the language of that erroneous identification. As Shrum himself testified, it was not as though the police were trying to "cover up" that an erroneous identification was made.
The Court Did Not Violate Defendant's Right
To Confront The Witnesses Against Him
"The Sixth Amendment to the [United States] Constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.' This right is secured for defendants in state as well as federal criminal proceedings . . . ." (Davis v. Alaska (1974) 415 U.S. 308, 315 [39 L.Ed.2d 347, 353].) Defendant contends the police's failure to document the exact words of Bess's erroneous identification of Williams violated his Sixth Amendment right to confront the witnesses against him because his counsel could not "appropriate[ly] and adequate[ly] cross-examine Bess." Specifically, defendant contends he could not "directly impeach Bess . . . because there were no prior inconsistent statements of Bess . . . because of Hendrickson's failure to preserve Bess'[s] actual statement." Defendant made a similar argument in his "Trombetta/Youngblood" motion.
There was no Sixth Amendment violation because defendant was able to adequately test Bess's credibility with respect to his erroneous positive identification. Bess testified both on direct and on cross-examination he told the police he was "pretty sure" the suspect he was shown at the in-field show up was the robber. He explained he meant he was about 75 percent sure he had identified the correct person. Detective Hendrickson refuted his testimony about the equivocal nature of his identification. She testified she was the one who broadcasted the erroneous positive identification. If a witness was only 75 percent certain he had identified the correct suspect, she "[v]ery likely [would] not" broadcast that as a "'positive identification.'" On this record, defendant was not deprived of his Sixth Amendment right to confront the witnesses against him.
The Court Did Not Abuse Its Discretion
In Excluding Third-Party Culpability Evidence
Defendant contends the court deprived of him of his due process right to present a defense when it excluded third-party culpability evidence. The evidence was that from March 16, 2010 to March 19, 2010, there were three bank robberies committed in Sacramento by a "[b]lack man in his late 30's or early 40's" who was between "5'6" to 5'9" in height with a slim build" who was wearing a hat and sunglasses. (Italics omitted.) In all three robberies, the suspect "'entered the banks, approached a teller and produced a demand note for cash. After obtaining cash, the suspect was seen fleeing the area. In at least two of the robberies, he was seen riding away on a mountain bike.'" (Italics omitted.) The March 16, 2010, robbery took place at Wells Fargo Bank on Freeport Boulevard. The March 18, 2010, robbery took place at Chase Bank on Florin Road. And the March 19, 2010, robbery took place at the Wells Fargo Bank on Park Center Road. According to defendant, the bank robberies were "uncannily similar" to the ones defendant was charged with committing in 2008.
The trial court excluded the evidence, finding, among other things, "[t]hese kind of basic facts of similarity and comparison would not meet the requirement of People versus Hall. There is really no evidence that connects the 2010, perpetrator to the 2008, robberies."
In People v. Hall (1986) 41 Cal.3d 826, the California Supreme Court adopted a two-part test for determining the admissibility of third-party culpability evidence. First, the trial court must determine whether there is evidence that both links the third party to the actual perpetration of the crime and is capable of raising a reasonable doubt of defendant's guilt. (Hall, at p. 833.) Second, the trial court must determine whether the evidence is admissible under Evidence Code section 352. (Hall, at pp. 834-835.) The trial court's decision to admit or exclude third-party culpability evidence is reviewed for abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.)
Here, the court did not abuse its discretion because the similarities between the 2010 robberies and the 2008 robberies were too general to support linking the third party to the 2008 robberies. The perpetrators of both sets of robberies were African-American men between the age of 19 to 40 of thin to medium built and average height who were at times wearing sunglasses, caps, gloves, and riding bikes. Simply put, these similarities were too generic and could have encompassed a far broader range of people than just the 2010 robber and the 2008 robber described in defendant's motion.*fn2 While defendant claims the "two sets of robberies shared many striking similarities," we disagree. The perpetrator of the 2008 robberies selected banks in the same geographic region of Sacramento and orally demanded cash from the teller. By contrast, the perpetrator of the 2010 robberies selected banks in disparate areas of Sacramento and in writing demanded cash from the teller. Because this proffered evidence was insufficient under the first prong of the Hall test to raise a reasonable doubt as to defendant's guilt, the court did not abuse its discretion by excluding that evidence. For the same reason, there was no deprivation of defendant's federal constitutional rights. (See People v. Robinson (2005) 37 Cal.4th 592, 626-627 [as a general matter, application of state rules of evidence do not infringe on a defendant's state or federal constitutional right to present a defense].)
Defendant Has Forfeited His Arguments Regarding The Fees
The court ordered defendant to pay a $242.29 main jail booking fee, a $27.22 main jail classification fee, and a $702 presentence report fee. These fees were recommended in the probation report, and defendant did not object when the trial court imposed them.
Now on appeal, defendant claims there was insufficient evidence he had the ability to pay these fees. He further contends that as to the two jail fees, there was no evidence of the actual administrative costs of booking or classification and, as to the presentence report fee, he was not informed of his right to a hearing on that fee and did not knowingly and intelligently waive that right, both of which are required by statute.
The People argue defendant has forfeited these arguments by not objecting in the trial court. We agree. The right to appellate review of a non-jurisdictional sentencing issue not raised in the trial court is forfeited. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) This rule of forfeiture has been repeatedly applied to the challenge of a fine or fee on appeal, including claims of insufficiency of evidence. (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)
While the forfeiture rule might seem inconsistent with the requirement of a knowing and intelligent waiver of hearing on the ability to pay the cost of the probation report (Pen. Code, § 1203.1b), the knowing and intelligent waiver requirement has been found not to apply to appellate review. (See People v. Valtakis, supra, 105 Cal.App.4th at p. 1075.) "[Penal Code] section 1203.1b and other recoupment statutes reflect a strong legislative policy in favor of shifting costs arising from criminal acts back to convicted defendants and replenishing public coffers from the pockets of those who have directly benefited from county expenditures." (People v. Bradus (2007) 149 Cal.App.4th 636, 643.) It would be inconsistent with this legislative policy to permit convicted defendants to stand silently by, and to raise the issue for the first time on appeal, thus draining both appellate and trial court resources in the process. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1076.) Defendant therefore has forfeited his argument regarding the fees.
The judgment is affirmed.
We concur: RAYE , P. J. MURRAY , J.