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The People v. Jerry B. Bowman

December 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JERRY B. BOWMAN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. (Super. Ct. No. SCS227759)

The opinion of the court was delivered by: McCONNELL, P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

INTRODUCTION

A jury convicted Jerry Brian Bowman of robbery (Pen. Code, § 211)*fn1 and false imprisonment (§ 236). The jury also found true allegations Bowman personally used a deadly or dangerous weapon when committing the offenses (§ 12022, subd. (b)(1)). In addition, Bowman admitted having a prior prison conviction (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior strike conviction (§§ 667, subd. (b)-(i), 1170.12). The trial court sentenced Bowman to an aggregate term of 16 years in prison.

Bowman appeals, contending the trial court violated his constitutional right to due process of law by instructing the jury his silence in response to police questioning could be considered an adoptive admission. He additionally contends the trial court violated his constitutional right to due process of law by instructing the jury his efforts to establish an alibi could show consciousness of guilt. We conclude these contentions lack merit and affirm the judgment.

BACKGROUND

Prosecution Evidence

Just after midnight on March 22, 2009, Victor Hugo Lopez Munoz*fn2 took a trolley home from work. He got off at a trolley station a few blocks from his apartment. As he was walking home, an African-American man he later identified as Bowman approached him and asked in a courteous tone, "Hey, do you have money? Hey, can you give me money?" Lopez responded, "No, I don't have any money."

Bowman again asked for money and Lopez again responded he did not have any. Bowman stepped closer to Lopez and changing his tone, asked him once more, "Do you have money?" When Lopez again said he had none, Bowman said, "Show me your wallet." Lopez said he did not have a wallet and Bowman replied, "Okay."

Bowman was quiet for about two seconds. Then, he stepped forward, hugged Lopez with both arms to [his] waist, and squeezed him hard. Lopez tried to push Bowman off, but Bowman was stronger.

While holding Lopez with one hand, Bowman searched his pants pockets. He took Lopez's cell phone, MP3 player, trolley pass, and debit card. Bowman kept the MP3 player, but gave the cell phone back saying, "Keep it because you are going to cancel it."

Bowman asked Lopez for his personal identification number (PIN) for the debit card. When Lopez told Bowman he did not know the PIN, Bowman pulled out a knife, pressed a button causing the blade to come out, and said, "Now do you know it?" At the same time, Bowman opened his eyes "big" to scare or intimidate Lopez, and he quickly gave him the PIN.

Bowman then asked Lopez questions about his family. After about four questions, Bowman grabbed Lopez and said, "Follow me," Bowman held Lopez by the arm until they crossed the street. Bowman then let go of his arm and told him to go to the side of a convenience store. Lopez started walking away from Bowman and responded, "No. You want money, right? Let's go inside the [convenience store]." Bowman continued to direct him to the side of the convenience store, but Lopez walked faster towards the store's entrance. When Lopez neared the store's door, he ran inside and asked for help. Meanwhile, Bowman ran away.

Lopez went home and called the police. Lopez described the robber as an African-American male, with brown eyes, around 25 years old, 160 pounds, and about the height of the interviewing officer, who was six-feet two-inches tall. Lopez could not see the robber's ears or describe the robber's hair because the robber was wearing a hooded jacket. Bowman is African-American and, at the time of his arrest, was 26 years old, five-feet eleven-inches tall, and weighed 170 pounds.

Lopez's bank was closed when the robbery occurred. He canceled his debit card two days later when his bank reopened. In the meantime, approximately $600 had been withdrawn from his account. Earlier that morning, an automated teller machine (ATM) photographed a man withdrawing money from Lopez's account. Lopez could not identify the person in the photograph because the photograph was blurry.

Almost two weeks after the robbery, Lopez went to the same trolley station to take the trolley to an adult school. He saw Bowman at the station. When the trolley arrived, both he and Bowman got on it. Lopez was "very sure" Bowman was the robber and called the police on his cell phone. Bowman and Lopez both got off at the stop for the adult school. Lopez followed Bowman at a distance and they both went into the school.

Lopez told the school guard Bowman had robbed him. The guard notified a secretary who asked Bowman in Lopez's presence "Is it true that you robbed [Lopez]?" Bowman answered, "No, I didn't rob him. I don't know him." When Bowman spoke, Lopez recognized his voice as the robber's. Bowman told Lopez to look at him and to look at his identification. Lopez replied that he did not need to see Bowman's identification because he knew Bowman was the robber. As Bowman spoke to Lopez, Bowman opened his eyes "big" as he had done during the robbery. Lopez felt Bowman was intimidating him.

A police detective went to the school and spoke separately with Lopez and Bowman. Lopez described the robbery to the detective and told him that, during the robbery, the robber held a black cell phone in his hand. Lopez said the robber's cell phone was smaller than his phone and did not flip open. It just had a numeric keyboard. The detective obtained Bowman's cell phone from him. The phone matched Lopez's description. The detective showed Bowman's cell phone to Lopez who identified it as the cell phone he had seen the robber holding. Lopez also identified Bowman's cell phone at trial. He testified he remembered seeing the brand name on the phone during the robbery.

The detective told Bowman where the robbery occurred, and Bowman told the detective that he did not go to that particular part of the city. The detective searched Bowman and found a document with a preprinted address located in the same vicinity as the robbery. The detective "thought that was strange because [Bowman] just had told [him] he wasn't in that particular area or doesn't go in that area." Bowman told the detective he lived at that address with his girlfriend, Taneshea Nelson, and he had spent the night with her at that address on the night of the robbery.

The detective arrested Bowman, transported him to the police station, and advised him of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda warnings). Bowman spoke with the detective for about 20 to 30 minutes. Bowman denied being the robber and denied being in the area where the robbery occurred. He told the detective he was with Nelson the night of the robbery. Bowman never mentioned Marissa Reese nor did he say he stayed at a motel with her on the night of the robbery.

The detective spoke with Nelson three times. Nelson initially told the detective Bowman was her boyfriend and he lived with her. She later told the detective that Bowman was a "booty call," meaning he just came over late at night for sexual favors. Nelson also told the detective that Bowman did not live with her, but had stayed at her home a few times and kept some clothes there. The detective showed Nelson the ATM photograph of the man who withdrew money from Lopez's account. The man was wearing a ball cap and an earring in his left ear. Nelson initially said she did not recognize the man. She later said the man appeared to be Bowman as she recognized his ears, his facial expression, and his earring. She said Bowman wore a fake diamond stud earring in his left ear. At trial, however, she testified she did not know the man in the photograph. She also testified she never saw Bowman wear an earring and to her knowledge he did not wear one. She denied ever telling the detective anything to the contrary.

Nelson additionally testified that Bowman had not spent the night at her house the night of the robbery. Approximately two months after the robbery, Bowman wrote Nelson a letter in which he stated he was going to trial and "theres some very important things I need ya to do For me please. Do not talk to that investigator or nobody if they keep messing with you just tell them to leave you alone they caint Force you to do any thang don't answer no question dont answer there calls nothin . . . they are tryin to use you against me Dont let them in the house Dont let them see my clothes mess with them or nothin . . . Listen to me if they come over dont answer the Door dont answer there calls nothin . . . Listen what ...


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