P. v. Gentry

Filed 12/1/05 P. v. Gentry CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JASON DARNELL GENTRY, et al., Defendants and Appellants.

H026381 (Santa Clara County Super. Ct. No. CC258951)

Defendants Jason Darnell Gentry and James Elija Johnson were both convicted after jury trial of one count of first degree burglary (Pen Code, §§ 459, 460, subd. (a)),^[1] and three counts each of robbery within an inhabited dwelling while acting in concert

(§ 213, subd. (a)(1)(A)), and false imprisonment (§§ 236, 237). In addition, the jury found true allegations that Johnson personally used a deadly and dangerous weapon, a BB gun (§ 12022, subd. (b)(1)), during the commission of the above offenses, and Johnson was convicted of assault with a deadly weapon (§ 245, subd. (a)). The trial court found that Johnson had a prior robbery conviction that qualified as a strike. (§ 1170.12.) The court sentenced Johnson to prison for 21 years, and granted Gentry probation with various terms and conditions.

On appeal, Gentry argues that the probation condition forbidding him from going to places where illegal drugs are used or sold or where alcohol is the chief item of sale must be modified to include a knowledge requirement. We agree, and will order the probation condition modified and affirm the judgment as to Gentry as so modified.

Johnson argues: (1) the admission of hearsay evidence regarding his prior robbery conviction violated his right to confrontation; (2) his oral and written statements to police should not have been admitted into evidence as they were involuntary; (3) the admission of evidence of a codefendant’s guilty plea and the prosecutor’s argument that the evidence could be considered as proof of the existence of an uncharged conspiracy violated his right to confrontation; (4) the court erred in failing to instruct the jury on the uncharged conspiracy; (5) the admission of evidence of his poverty to prove motive was prejudicial error; and (6) the cumulative effect of these errors denied him a fair trial. We disagree with all these contentions, and will affirm the judgment as to Johnson.

BACKGROUND

Defendants were charged, together with Michael Deon Joiner and Jaitmari Khari Davis, by first amended consolidated information with three counts of robbery within an inhabited dwelling while acting in concert (§ 213, subd. (a)(1)(A); counts 1 – 3), first degree burglary (§§ 459, 460, subd. (a); count 4), three counts of false imprisonment

(§ 236, 237; counts 5 – 7), and assault with a deadly weapon (§ 245, subd. (a)(1); count 8). The information further alleged that during the commission of counts 1 through 7 each defendant was armed with a handgun (§ 12022, subd. (a)(1)), and Johnson personally used a deadly and dangerous weapon, a BB gun (§ 12022, subd. (b)(1)). The information also alleged that Johnson had a prior felony conviction that qualified as a strike. (§ 1170.12.)

The prosecution’s case

In August 2002, Jesus Aviles[2] lived on Felix Way in San Jose with Sofia Chicas and her boyfriend Jason Monroe. Chicas and Monroe sold marijuana to friends out of their bedroom. However, they had never sold marijuana to an African-American.[3]

On the afternoon and evening of Thursday, August 8, 2002, Chicas and Monroe had a small get-together at their home, and people were drinking and smoking marijuana there. Later that night Joe Curiel came to the home. Curiel had a drink with Chicas and Monroe and bought some marijuana. While Curiel was there, Chris Henderson,[4] an African-American, came to the house asking for Curiel. Neither Monroe nor Chicas knew Henderson, and Curiel seemed surprised to see him. Henderson was obnoxious, and he and Curiel soon left. Chicas and Monroe went to bed around midnight.

Aviles arrived home around 2:30 a.m. on Friday, August 9, 2002, with his friends Shawn, Sarah, and Jamie, and parked down the street. As the four of them were walking toward Aviles’ home, an African-American man wearing a stocking cap and a black sweatshirt came out from the bushes. The man screamed something and ran past them. Aviles and his friends continued on to his house and entered the backyard through a gate. The door to Aviles’ room was open. When they looked into Aviles’ room, Aviles and Shawn could see people inside. Aviles told his friends to run. Shawn and Sarah heard a noise like a gun shot coming from inside Aviles’ room, and ran from the place with Jamie. The three of them hid behind a car in the driveway next door, and called for help. After they had been there for about 10 or 15 minutes, they saw three men run away. They then went back to Aviles’ house, found Aviles, and waited for the police to arrive.

Aviles was standing outside the entrance to his room when an African-American man grabbed him and shot him on the left side of his head with a BB gun. The shot ruptured a vein causing Aviles to bleed profusely. The man then asked Aviles where “the dope” and money was, and pushed Aviles inside. Two other African-American men were inside, one with a crowbar, and all three of the intruders had their faces covered. The man who shot Aviles took him down the hall and told him to open the door to Chicas’s room. Aviles yelled for Chicas to open her door, saying that a man had a gun to his head. Chicas opened the door, and the intruders ran into the room. Monroe was asleep on the bed, and one of the men pistol-whipped Monroe to wake him up.

While holding Aviles, Chicas, and Monroe at gunpoint, the three intruders asked where the money, marijuana, and the safe were. Chicas pulled a safe out from under the bed. The intruders also found a large vodka bottle containing about $2,000 to $3,000 in bills in the room. One of the intruders took Chicas out of the room to get the keys to the safe. Monroe took another intruder to the backyard where there was a broken safe. When Monroe was unable to open that safe, the intruder took Monroe back to his room. The intruders took the safe from the room, the keys Chicas gave them, the bottle of money, and a PlayStation from Aviles’ room, and left.

Chicas saw the men run down Felix Way and turn right on Clara Felice. She followed them, and when she saw them start to jump a wall she returned home. On the other side of that wall is the Almaden Terrace Apartments.

Monroe and Chicas suspected that Henderson was involved in the incident. Chicas knew that Curiel was aware of the safe in her bedroom. After checking on Aviles, Chicas drove to Curiel’s nearby home. She demanded that Curiel take her to Henderson’s home. Curiel directed Chicas to the Almaden Terrace Apartments, and pointed to the stairs of one building that led to two apartments. Monroe waited for the police to arrive. When they did, Chicas directed the officers to the two apartments and went home. She later learned that one of the apartments was empty.

Henderson is Johnson’s cousin, and Gentry, Davis and Joiner are his friends. Henderson visited Johnson and his friends in the summer of 2002 at an apartment in the Almaden Terrace Apartments, where he once saw a BB gun. Henderson also knows Curiel. On August 8, 2002, Henderson went with Curiel to his friend’s house in order to buy some marijuana. Henderson stayed in the car when Curiel went inside. After waiting about 30 minutes, Henderson went to the house and was let inside. He and Curiel left after a few minutes and smoked the marijuana in Curiel’s car. Curiel then dropped him off at the apartments, and he went inside and fell asleep. He woke up and left the next morning. Although he told Detective John Mitchell on August 22, 2002, that he woke up during the night and saw Gentry, Davis, Johnson, and Joiner in the room counting money, and with marijuana and a black box, Johnson testified at trial that he made up the story because he was afraid that he was being identified as one of the participants in the robbery.[5]

Detective Mitchell interviewed Gentry on August 16, 2002. After waiving his Miranda rights,[6] Gentry said that he had been in the car with Henderson and Curiel when they went to the Felix Way home on August 8, 2002, to buy marijuana. He waited in the car with Henderson when Curiel went inside. At some point, Henderson also went inside the home, and came back with Curiel and marijuana. A plan was entered into at Gentry’s apartment to rob the Felix Way home. Gentry said that a BB gun and a crowbar were used in the robbery. Henderson was not involved in the robbery. Gentry acted as the lookout and did not go inside the home. When some people came home during the robbery, Gentry called out a warning and ran back to his apartment. Gentry said that his cut from the robbery was $250. Mitchell found a crowbar in Gentry’s Almaden Terrace apartment under his bed, where Gentry told him it would be. Mitchell also found a box of BBs in the apartment.

Detective Mitchell interviewed Davis on October 9, 2002. After waiving his Miranda rights, Davis admitted being involved in the robbery but said that Henderson was not involved in the robbery.

Detective Mitchell and Officer Jeffrey Enslen interviewed Johnson at the police station for four hours on August 20, 2002. The interview was tape recorded, and the tapes were played for the jury. During the interview, Mitchell did not make any threats or promises that caused Johnson to admit anything. Johnson was arrested and the officers then took him to his car. Mitchell searched the car and found a doorknob inside a bag and a head cover that could also be used as a mask. Mitchell had earlier seen the doorknob in Gentry’s apartment. Johnson was taken to jail and booked. Johnson then said that he wanted to talk some more about the case. He wrote out a statement, which was admitted into evidence as People’s Exhibit 26. In the statement Johnson admitted being at a house early one Friday morning when some of the people he was with went inside. He stayed outside and ended up hitting a man with a BB gun during a scuffle, but he did not rob anybody or take any marijuana.

San Jose Police Officer Patrick Boyd interviewed Johnson in April 2000. At the time, Johnson was a suspect in a robbery that had occurred the previous month. Boyd informed defendant of his Miranda rights and Johnson acknowledged understanding his rights. Johnson said that he drove with two other individuals to a bank at Valley Fair and parked a little distance away. He and one of the other individuals went up to a man at the ATM who was carrying a deposit bag. The individual with Johnson threatened the man, demanded the bag, and got into a scuffle with the man, who was knocked to the ground. Johnson said that he did not actually participate in the assault. When Boyd told Johnson that this was contrary to what the victim indicated, Johnson continued to deny any physical involvement, but acknowledged that he was there and that he knew that the robbery was going to occur. He also said that the money in the deposit bag was divided amongst the three of them in the car. A certified copy of defendant’s conviction for robbery as a result of this incident was admitted into evidence as People’s Exhibit 8.

The defense case

Gentry testified that on the evening of August 8, 2002, he went with Curiel and Henderson to the Felix Way house to buy some marijuana. Curiel went inside and Gentry and Henderson waited in the car. Some time later, Henderson went inside and came back with Curiel. They all went and smoked some marijuana in the car. Curiel left and Gentry and Henderson then smoked some more marijuana at Gentry’s Almaden Terrace apartment with Davis. Later that night, while Henderson was sleeping on the couch, Johnson and Joiner came to the apartment. Gentry went with Davis, Johnson, and Joiner when they walked over to the Felix Way residence. There, Davis said that they were going to rob it. He told Gentry to stay outside as a lookout, and the others went inside. Davis had a crowbar and Johnson had a BB gun. When Gentry heard some people coming, he shouted a warning and ran home. The others came back to the apartment with a black box, a bottle full of money, and a PlayStation. They broke the bottle, counted the money, and gave him about $100. He did not take more because he did not want to be involved. While they were still counting the money, Gentry heard Curiel’s and Chicas’s voices coming from outside near Johnson’s former apartment. Then he saw the police arrive. Davis, Johnson and Joiner turned off the lights in the apartment. Henderson woke up while Davis, Johnson and Joiner ran around and hid the things that had been taken in the robbery.

Gentry further testified that Johnson, Davis and Joiner had been planning the robbery for a week or two. Curiel had told them that his “weed hookup” had “all this weed and all this stuff,” including a lot of money. Gentry also heard Johnson, Davis and Joiner later talk about finding a pistol and a pound of marijuana in the black box. Detective Mitchell did not believe Gentry when he said during his August 16, 2002 interview that he never went inside the house and that Joiner was the third person involved in the robbery who did go inside.

Verdicts, findings on prior allegation, and sentencing

In the middle of trial, Davis entered into a negotiated plea agreement, a condition of which was a three-year prison sentence. Outside the presence of the jury, Johnson waived jury trial on the prior allegation. The jury found Johnson guilty of all charges, counts 1 through 8, and found true allegations that he personally used a deadly and dangerous weapon during the commission of counts 1 through 7. The jury found Gentry guilty of counts 1 through 7, but found him not guilty of count 8 and found all arming allegations as to him not true. The jury was unable to reach a verdict on any counts as to Joiner, and the court declared a mistrial as to him. The court found true the allegation that Johnson had a prior robbery conviction that qualified as a strike. The court sentenced Johnson to 21 years in state prison. The court suspended imposition of sentence as to Gentry and placed him on three years probation with various terms and conditions, one of which was that he not “go to places where illegal drugs are used or sold or alcohol is the chief item of sale.”[7]

DISCUSSION

Johnson’s prior conviction

Johnson moved in limine to exclude under Evidence Code section 352 evidence of his prior robbery conviction. The prosecutor sought to use the conviction for impeachment and to show intent under Evidence Code section 1101, subdivision (b). The court found that the offense was a crime of moral turpitude, and that the evidence was more probative than prejudicial, and ruled that the evidence was admissible for impeachment. The court also found the conviction admissible to show intent. The court subsequently instructed the jury that it could consider defendant’s prior robbery conviction only on the issue of the existence of the necessary intent.

Johnson argues that the admission of evidence of his prior robbery conviction was prejudicial error. He contends that the prior robbery was not sufficiently similar to the charged offense to be admissible on the issue of intent. He contends that Officer Boyd’s testimony regarding the facts of the prior, and of having confronted Johnson with what the victim said about it, was inadmissible hearsay and thus violated his right to confrontation as stated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).[8] He also contends that defense counsel’s failure to object to Officer Boyd’s testimony constituted ineffective assistance.

“Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, . . . the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove . . . intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of . . . intent. [Citation.] On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]” (People v. Kipp (1998) 18 Cal.4th 349, 369.)

“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ibid.)

In the instant case, whether Johnson harbored the requisite intent to rob the occupants of the Felix Way house was a disputed material issue. Johnson admitted being near a house early one Friday morning with a BB gun when others he was with went inside the house, but he denied taking part in a robbery there. In the prior robbery, Johnson admitted going to a bank with two other people with the intent to rob somebody, but denied taking part in the actual robbery. Johnson’s prior robbery conviction had a strong tendency to prove that Johnson had the intent to rob somebody when he went with others to that house that early Friday morning. “ ‘ “If a person acts similarly in similar situations, he probably harbors the same intent in each instance” [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.

[Citations.]’ ” (People v. Miller (2000) 81 Cal.App.4th 1427, 1448, quoting People v. Robbins (1988) 45 Cal.3d 867, 879.) The evidence of Johnson’s prior robbery was sufficiently similar to his statements regarding the charged offense to support the inference that he probably harbored the intent to rob in both incidents. The court did not abuse its discretion in admitting evidence of Johnson’s prior robbery conviction.

Johnson contends that it was prejudicial error to allow Officer Boyd to testify that Johnson’s version of what happened during the prior robbery was inconsistent with the victim’s description of the event. He argues that Boyd’s reference to the victim’s statement about the event was inadmissible hearsay, and that admission of the testimony denied him his right to confront the witnesses against him. (Crawford, supra, 541 U.S. 36.) We disagree, as the testimony at issue was not hearsay; Boyd’s testimony was not “evidence of a statement that was made other than by a witness while testifying at the hearing . . . that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)

Defendant acknowledges that his statements to Boyd about the prior robbery were admissible as an admission by a party. (Evid. Code, § 1220.) Boyd testified that he confronted Johnson with the fact that Johnson’s statements to him were “contrary to what was indicated in the victim’s statement,” and that Johnson continued to deny participating in the actual assault and robbery of the victim. The prosecutor then asked Boyd: “Even though the victim’s statement indicated two of them attacked him, Mr. Johnson said that he was not a part of the attack.” Boyd responded: “Correct.” This portion of Boyd’s testimony was not hearsay as it was not offered to prove that Johnson was indeed part of the actual assault on the victim, but was offered to prove that Johnson denied being part of the actual assault even when confronted with a contrary claim by the victim. As Boyd’s testimony regarding the content of the victim’s statements was not offered to prove the truth of the matter stated, no Crawford error is shown, and counsel cannot be faulted for failing to object to the testimony.

Johnson’s statements to police

Johnson moved in limine to exclude his oral and written statements to police regarding these offenses. At the Evidence Code section 402

hearing on the motion, Detective Mitchell testified that on August 20, 2002, at about 7:30 p.m., he and Detective Enslen contacted Johnson at work and requested that Johnson accompany them to the police station. Johnson agreed to do so and Mitchell told Johnson that he was free to leave at any time. Neither Mitchell nor Enslen displayed any weapons during the subsequent interview, which lasted about four hours and was tape recorded. Mitchell informed Johnson of his Miranda rights at the beginning of the interview and asked Johnson if he understood each of these rights. Johnson responded that he did. Mitchell then interviewed Johnson without asking for an express waiver of these rights. At no time during the interview did Johnson express a desire to exercise his rights and to stop the interview.

Mitchell told Johnson that he was identified as a suspect in a robbery, and told him that there was evidence that he was involved. Throughout the entire interview, Johnson denied being present at the time of the robbery. Mitchell repeatedly called him a liar, and yelled at him, but Johnson did not give out any information. Mitchell placed Johnson under arrest about an hour before the interview ended. After the interview ended, Mitchell began the pre-booking process with Johnson. During the process, Johnson asked to have his car keys released. Mitchell indicated that he would not need the car keys once he completed a search of Johnson’s car.[9] Johnson then agreed to take Mitchell to his car so that Mitchell could do the search and he could have the keys released.

Mitchell and Enslen drove Johnson to his car and Mitchell searched the car while Johnson watched from the patrol car. Mitchell found a black head covering with tie straps and a bag containing a door knob. Mitchell recognized the door knob as one he had seen in a bedroom at Gentry’s apartment. Mitchell seized the head covering to be booked into evidence. He then took Johnson to jail. There, Johnson told Mitchell that he wanted to talk to him some more about the situation. Johnson asked how the presence of a real gun would affect the charges against him. Mitchell said that a real gun carries a significant enhancement in robbery cases. When Johnson said again that he wanted to talk, Mitchell told Johnson that he wanted Johnson to tell the truth.

After being processed, Johnson indicated that he still wanted to talk to Mitchell. Mitchell gave Johnson some paper and a pen, and told Johnson that he could write down any statement that he wished to make. Johnson then wrote out a statement and signed and dated it. Johnson wrote that he was present at, but did not participate in, the robbery. He also wrote that he struck one of the victims with a BB gun in self-defense during a scuffle outside the home. This was a possible scenario Mitchell had presented Johnson during the earlier interview.

Johnson testified that when Detective Mitchell told him that Mitchell wanted him to go to Mitchell’s office to talk, he did not feel that he could tell Mitchell no. He did not have any idea why Mitchell wanted to talk to him, and neither detective told him that he was free to leave. Mitchell read him his rights but he did not understand that he had the right to have an attorney present during the questioning. Mitchell did not begin to question him about the robbery until about an hour into the interview, and he did not remember his rights at that time because he felt pressured. He continued to talk to Mitchell even after he was arrested. When Mitchell began yelling at him towards the end of the interview he felt threatened. However, at no time during the entire interview did Mitchell say or do anything that caused him to change his answers or to admit anything, and he never told Mitchell that he did not want to continue to talk to him.

Johnson told Mitchell during the ride over to the car search and again during the booking process that he wanted a lawyer but he did not tell Mitchell that he did not want to talk to him anymore. He wrote out a statement because Mitchell told him that if he did, everything would be all right and he would not have to do 10 to 50 years. The scenario in the statement was one suggested by Mitchell; he wrote down what Mitchell told him to write.

Johnson admitted that he has a prior conviction for robbery. In that case he was arrested by Officer Boyd and questioned after being informed of and acknowledging that he understood his rights. He confessed to the robbery and pleaded guilty because he was guilty. However, prior to sentencing he told the probation officer that his co-defendant actually did the robbery and he just watched.

In denying Johnson’s motion to suppress his oral and written statements the trial court stated: “Detective John Mitchell is an aggressive investigating officer. The evidence before me so indicates[. He] has a distinctive style, and it runs throughout the tapes of his interviews, and I listened to all of them. He is scrupulous in making sure he reads the Miranda rights early on in all the interviews. . . . [¶] . . . Moreover, he makes sure that the person he is interviewing answers audibly to questions, and, thus, I think goes to a good understanding of the rights. [¶] All the evidence supports this. The validity of Miranda waivers are viewed in the light of totality of circumstances. There’s well-settled case law that investigating officers have wide berth in techniques and questions that can be used to elicit information. [¶] . . . Mr. Johnson’s motion this Court finds the defendant freely, voluntarily, and knowingly waived his Miranda rights, and that’s beyond a reasonable doubt, I believe, Detective Mitchell. [¶] Defendant Johnson has a prior felony conviction. In that conviction he went through, he said himself on the stand, that he went through the Miranda rights, and he understood them. On the stand he, although he said that he plead[ed] guilty because he was guilty; however, he denied this to his probation officer in the probation report that was submitted to me. At least his credibility is suspect to put it in a charitable light. I do believe Detective Mitchell, and so I find that his Miranda rights were not violated, and I find that beyond a reasonable doubt in regard to Johnson. [¶] Also I find there was no coercion, and I think the tapes speak for themselves, and, as I indicated, I feel that Mr. Johnson’s credibility is suspect.”

Defendant contends that the trial court prejudicially erred in denying his motion to exclude his oral and written statements to Detective Mitchell. He argues that his statements were involuntary and were obtained in violation of Miranda.

“It has long been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.] A statement is involuntary [citation] when, among other circumstances, it ‘was “ ‘extracted by any sort of threats . . . , [or] obtained by any direct or indirect promises, however

slight . . . .’ ” ’ [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’ [Citations.]” (People v. Neal (2003) 31 Cal.4th 63, 79 (Neal).) “ ‘Among the factors to be considered are “ ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ ” [Citation.] On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession in subject to independent review. [Citations.] In determining whether a confession was voluntary, “[t]he question is whether defendant’s choice to confess was not ‘essentially free’ because his will was overborne.” [Citation.]’ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 411.)

“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. . . . The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (Miranda, supra, 384 U.S. at pp. 444-445.)

“ ‘[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him’ [citations] and indeed not until counsel is actually present [citation], ‘unless the accused himself initiates further communication, exchanges, or conversations with the police’ [citations].” (Neal, supra, 31 Cal.4th at p. 80.)

Johnson testified that he has a prior robbery conviction, and that he confessed to that robbery after being informed of and acknowledging his understanding of his Miranda rights. He testified that he pleaded guilty to the robbery because he was guilty, but he later denied his involvement. He further testified that when he was interrogated by Detective Mitchell after being informed of his Miranda rights, he did not understand that he could have an attorney present during questioning. The trial court found Johnson’s credibility “suspect,” and the record supports that finding.

Mitchell’s interview of Johnson took place at the police station, lasted four hours, and was taped. The trial court listened to the tapes of the interview and found that Mitchell was “an aggressive investigating officer,” and the record supports that finding. Mitchell repeatedly called Johnson a liar and yelled at him during the interview. However, Johnson admitted that at no time during the entire interview did Mitchell say or do anything that caused him to change his answers or to admit to anything. Johnson also admitted that he never told Mitchell that he did not want to continue to talk to him.

Johnson testified that both during the ride to the car search and during the booking process, he told Mitchell that he wanted an attorney. However, Mitchell had already concluded his interview of Johnson when these statements were made, and Johnson did not claim that he informed Johnson that he wanted to consult an attorney before speaking or have an attorney present during any subsequent interview. Johnson’s request for an attorney appeared to be simply a request for appointment of counsel at the government’s expense to represent him on the charges he had been arrested for. Even if we were to find that Johnson’s request for an attorney was a request to have an attorney present before speaking, the record shows that Johnson himself initiated the further communication with Mitchell that resulted in his written statement. Applying the independent standard of review to this record, we conclude that Johnson’s oral statements to Detective Mitchell during the interview as well as his written statement were voluntary and were not obtained in violation of Miranda. Accordingly, the statements were properly admitted.

The guilty plea entered by Davis

Prior to trial, the prosecutor offered the four defendants a “packaged deal” plea agreement. Under the agreement Johnson would receive a sentence of 11 years and the other three defendants would receive sentences of three years. When Johnson rejected the agreement, the prosecutor withdrew it. In the middle of trial, however, Davis entered into a negotiated plea agreement that included a three-year prison sentence. At the parties’ request, the court immediately informed the jury of the plea: “[T]he attorneys have asked me to tell you that defendant Davis has pled guilty. Okay.”

Johnson now argues that evidence that Davis pleaded guilty was erroneously admitted. We agree that, had Johnson objected to admission of evidence of Davis’s guilty plea, admission of the evidence would have been error. (People v. Cummings (1993) 4 Cal.4th 1233, 1321-1322.) However, having consented to the admission of the evidence at trial, Johnson may not object to it on appeal. (People v. Torres (1962) 201 Cal.App.2d 290, 295 (Torres).)

Johnson argues that counsel’s failure to object to admission of the evidence constituted ineffective assistance. Johnson “has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent that the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389.)

The record discloses that after Davis entered his change of plea, the court offered to tell the jury that there was one fewer defendant than before, but that they were not to consider it for any purpose. Counsel for Joiner and counsel for Gentry indicated that they wanted to be able to argue that Davis was one of the robbers, so the prosecutor suggested that the court tell the jury that Davis’s case had settled. Johnson’s counsel then stated: “Why don’t we say he’s pled guilty and we won’t have to tell them what happened or anything else.” All parties told the court that this was fine with them. There is no question that counsel may agree, for tactical purposes, to the introduction of evidence to which he or she might have objected and which might otherwise be inadmissible. (Torres, supra, 201 Cal.App.2d at p. 295.) We cannot say, based on the record before us, that counsel’s agreement to the introduction of evidence of Davis’s guilty plea was not a reasonable tactical decision. The fact that the prosecutor later referred to Davis’s guilty plea when arguing that there was an uncharged conspiracy did not make counsel’s decision unreasonable. Johnson has not carried his burden of proving ineffective assistance of counsel.

Instructions on conspiracy

During closing argument, the prosecutor argued that both Gentry and Henderson told police that the robbery had been planned for some time. The prosecutor also argued that Davis’s plea proved an uncharged conspiracy existed: “[H]e pled guilty. He admitted the robberies in this case. And his guilty plea comes into evidence as a declaration against interest, his interest, because even though we don’t have it charged, but we have here a conspiracy of all of these individuals to commit these robberies. So his guilty plea comes in as a declaration against interest, proving the conspiracy – helping to prove the conspiracy that all these individuals were working together to do these robberies and these thefts.” No party requested that the court give conspiracy instructions.

Johnson contends that the court had a sua sponte duty to give CALJIC Nos. 6.10.5[10] [conspiracy and overt act—defined—not pleaded as a crime charged], 6.22[11] [conspiracy—case must be considered as to each defendant], and 17.00[12] [several defendants—verdict as to some and disagreement as to others]. The Attorney General concedes that the court should have given CALJIC Nos. 6.10.5 and 17.00 due to the prosecutor’s argument, but argues that there was no need to give CALJIC No. 6.22. We agree with the Attorney General. (See e.g., People v. Earnest (1975) 53 Cal.App.3d 734, 744-745 (Earnest) [failure to define conspiracy sua sponte was error]; People v. Mask (1986) 188 Cal.App.3d 450, 456-457 (Mask) [failure to give CALJIC No. 17.00 is error when more than one defendant is prosecuted in an action]; see also Use Note to CALJIC No. 6.22 (Jan. 2005 ed.) [this instruction is to be given and not CALJIC No. 17.00 when conspiracy is charged].)

The failure to give CALJIC Nos. 6.10.5 and 17.00 sua sponte, although error, may nevertheless be harmless. (See e.g., Earnest, supra, 53 Cal.App.3d at p. 745; Mask, supra, 188 Cal.App.3d at p. 457.) In this case, the evidence overwhelmingly showed a conspiracy to rob the occupants of the Felix Way house. The evidence showed that three men entered the Felix Way house early one Friday morning, with one carrying a BB gun and another a crowbar, while leaving a fourth man outside as a lookout. The men then robbed three residents of the house after shooting one with the BB gun and pistol- whipping another. Henderson told Detective Mitchell that he saw Johnson, Davis, Joiner, and Gentry shortly after the robbery took place with items taken during the robbery. Gentry admitted to Detective Mitchell that he was the lookout, and further said that Johnson, Davis, and Joiner were the intruders and that Johnson had the BB gun. Davis admitted to Detective Mitchell that he was one of the robbers. Johnson told Detective Mitchell that he did not rob anybody, but he admitted carrying a BB gun one Friday morning and hitting somebody with it. No evidence was presented regarding any pretrial statements Joiner may have made. The jury found Johnson guilty on all counts relating to the robberies and found that he personally used the BB gun. The jury also found Gentry guilty on all counts except assault with a deadly weapon, but found all arming allegations not true. It was unable to reach a verdict on any count as to Joiner. Under the circumstances, it is clear that the jury “decide[d] separately whether each of the defendants [was] guilty or not guilty.” (CALJIC No. 17.00.) Therefore, it is not reasonably probable that the jury would have reached a different verdict as to Johnson had it been instructed in the language of CALJIC No. 17.00. (People v. Watson (1956) 46 Cal.2d 818, 836.) And, as the facts overwhelmingly established Johnson’s participation and role in the robberies, it is not reasonably probable that the jury would have reached a different verdict as to Johnson had it been instructed in the language of CALJIC No. 6.10.5. (See People v. Sully (1991) 53 Cal.3d 1195, 1231-1232.)

Evidence of poverty

The evidence showed that both Henderson and Gentry told Detective Mitchell that Johnson, Davis, Joiner and Gentry had a bottle of cash shortly after the robberies occurred, and were dividing up the cash amongst themselves. During his cross-examination of Gentry, the prosecutor asked him whether at the time of the robbery he was about to be evicted from his apartment for failing to pay rent. Gentry responded: “I don’t know. They said because we were too loud, but I think that rent had something to do with it.” Gentry also said that he and his roommates Davis and Larry Weaver had not yet paid that month’s rent, which was $1,350, and that they were short of money. And, Johnson had already been evicted from his Almaden Terrace apartment. Johnson was allowed to keep his things at Gentry’s apartment until he could find a new place to live.

During closing argument, the prosecutor argued that Johnson’s and other participants’ motives for participating in the robberies were that they needed money. The prosecutor pointed out portions of Mitchell’s taped interview of Johnson, where Johnson stated that he had recently paid off some debts. The prosecutor argued that Johnson needed money, and that “now all of a sudden he has money to pay” his debts even though he was being evicted from his and then Gentry’s apartment. None of the defendants objected to the prosecutor’s argument.

Johnson contends that admission of evidence that he and his codefendants needed money in order to show a motive to commit the robberies was improper and violated his right to a fair trial. He also argues that the prosecutor improperly relied upon the evidence in closing argument and that his counsel’s failure to object to the improper admission of the evidence constituted ineffective assistance.

“The issue of the relevance of evidence is left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse. [Citations.] That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

Johnson is correct that evidence of a defendant’s poverty “without more” is inadmissible to establish motive to commit robbery “because it is unfair to make poverty alone a ground of suspicion . . . .” (People v. Edelbacher (1989) 47 Cal.3d 983, 1024 (Edelbacher).) It is also inadmissible because the probative value of poverty alone is considered outweighed by the risk of prejudice. (People v. Cornwell (2005) 37 Cal.4th 50, 96; People v. Wilson (1992) 3 Cal.4th 926, 939.) However, evidence of poverty or indebtedness may be relevant and admissible in some circumstances. Thus, “the sudden possession of money, immediately after commission of a larceny, by one who before that had been impecunious, is clearly admissible as a circumstance of the case.” (People v. Kelly (1901) 132 Cal. 430, 431-432; see also Edelbacher, supra, 47 Cal.3d at p. 1024.)

Here evidence of Johnson’s indebtedness and his eviction from his apartment for failure to pay rent, coupled with Gentry’s eviction from the apartment they subsequently shared, prior to the robberies, and Johnson’s possession of cash and payment of his debts immediately afterward, had “substantial relevance” to explain Johnson’s motive for the robberies and “this relevance clearly outweighed the risk of undue prejudice.” (Edelbacher, supra, 47 Cal.3d at p. 1024.) The trial court did not abuse its discretion in admitting the evidence. And, as the evidence was properly admitted, defense counsel cannot be faulted for any failure to object to it and the prosecutor was allowed to rely upon it to establish the presence of motive. (See CALJIC No. 2.51.)

Gentry’s probation condition

The trial court suspended imposition of Gentry’s sentence and placed him on probation with various terms and conditions. One condition was that he was not to “go to places where illegal drugs are used or sold or alcohol is the chief item of sale.” Gentry contends that this probation condition is unconstitutionally overbroad because it does not contain a requirement that he know illegal drugs are used or sold or know that alcohol is the chief item of sale at the places where he is prohibited from going. He requests that the condition be modified to include such a knowledge requirement.

Preliminarily, the Attorney General argues that Gentry’s contention is waived by the failure to object when the court imposed the probation condition. In People v. Welch (1993) 5 Cal.4th 228, 237, our Supreme Court held that failure to object to the reasonableness of a probation condition in the trial court waives the claim on appeal. (See In re Bushman (1970) 1 Cal.3d 767, 777, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) Here, Gentry is not challenging the condition on reasonableness grounds, but on constitutional grounds. There is a split of authority regarding whether the Welch waiver rule applies to claims that a probation condition is unconstitutionally vague or overbroad, and the matter is now before our Supreme Court in the context of a juvenile probation condition. (In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980.) In addition, Gentry contends that his counsel’s failure to object to the condition constitutes ineffective assistance. We will therefore consider the merits of Gentry’s challenge.

The Attorney General argues that no modification of the probation condition is required because a knowledge requirement is fairly implied in the condition as stated. However, the Attorney General also requests that, if this court does modify the probation condition, it include an objective as well as subjective knowledge requirement.

Without an explicit knowledge requirement, the probation condition is unconstitutionally defective because it renders Gentry vulnerable to criminal punishment for frequenting a place not known to him to be one where illegal drugs are used or sold or where alcohol is the chief item of sale. (See People v. Lopez (1998) 66 Cal.App.4th 615, 628-629; People v. Garcia (1993) 19 Cal.App.4th 97, 102-103 (Garcia).) Given “the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights,” we agree with Gentry that the knowledge requirement “should not be left to implication.” (Garcia, supra, 19 Cal.App.4th at p. 102.) The unconstitutional defect is easily remedied by modifying the condition to expressly require knowledge: while on probation Gentry is not to “knowingly go to places where illegal drugs are used or sold or alcohol is the chief item of sale.”

DISPOSITION

The judgment as to Gentry is ordered modified to reflect modification of the relevant probation condition to read as follows: “The defendant will not possess or consume alcohol or illegal drugs or knowingly go to places where illegal drugs are used

or sold or alcohol is the chief item of sale.” As so modified, the judgment as to Gentry is affirmed.

The judgment as to Johnson is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] Aviles was known to his friends and referred to at trial as Tony.

[3] Chicas testified under a grant of immunity. The jury was informed that she had recently been convicted of robbery and was awaiting sentencing.

[4] Henderson was known and referred to at trial as Tweet.

[5] Henderson testified that he was doing so under a promise from the district attorney that he would not be prosecuted for lying to the police, but that he could be prosecuted if he admitted being involved in the robbery.

[6] Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

[7] At the sentencing hearing the prosecutor stated that all of the jurors had approached him after trial and requested leniency for Gentry, and that two jurors had written letters on his behalf.

[8] In Johnson’s opening brief, he argues that the trial court also erroneously admitted into evidence the probation report regarding his prior conviction. However, in his reply brief, Johnson acknowledges that the probation report was removed from Exhibit 8 before it was admitted into evidence.

[9] Johnson was on probation at the time, with a search condition of probation.

[10] “A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of _____, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime, but is not charged as such in this case. [¶] In order to find a defendant to be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act. It is not necessary to such a finding as to any particular defendant that defendant personally committed the over act[, if [he] [she] was one of the conspirators when the alleged overt act was committed]. [¶] The term ‘overt act’ means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy. [¶] To be an ‘overt act,’ the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or unlawful act.” (CALJIC No. 6.10.5.)

[11] “Each defendant in this case is individually entitled to, and must receive, your determination whether [he] [she] was a member of the alleged conspiracy. As to each defendant you must determine whether [he] [she] was a conspirator by deciding whether [he] [she] willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. [¶] Before you may return a guilty verdict as to any defendant of the crime of conspiracy, you must unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to commit the crime[s] of _____, and (2) a defendant willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. You must also unanimously agree and find beyond a reasonable doubt, that an overt act was committed by one of the conspirators. You are not required to unanimously agree as to who committed an overt act, or which overt act was committed, so long as each of you finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the [information] [indictment] to be overt acts.” (CALJIC No. 6.22.)

[12] “You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to [both] [all] the defendants, but do agree upon a verdict as to any one [or more] of them, you must render a verdict as to the one [or more] as to whom you agree.” (CALJIC No. 17.00.)