Filed 6/9/15 P. v. Cousin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061443
v. (Super.Ct.No. RIF1401312)
PAUL EUGENE COUSIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed with modification.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H.
Chow, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Paul Eugene Cousin appeals from a judgment of
conviction for robbery. (Pen. Code, § 211.)1 We affirm the judgment, as modified.
STATEMENT OF FACTS
The victim, Cleveland “Roosevelt” Rush, called police stating that “I want
to report a robbery. [¶] . . . [¶] Um, I was coming out of the motel and this guy jumped
out and . . . [¶] . . . [¶] . . . [t]ook like a sharp nail object to my neck and took $20 from
me.” Rush gave a general description of the robber but did not indicate that he could
identify him. He said he was then at a Winchell’s. At trial, however, Rush testified that
he had not been robbed and that he had called 911 because he had lent money to
defendant that evening and wanted it back. Rush further testified that after giving
defendant the money, he himself walked to a gas station convenience store where he
intended to meet someone and buy drugs. At this point Rush realized he no longer had
enough money. He first called his dealer to delay the transaction, and then called 911.
Perhaps realizing that his story was illogical, Rush further explained that he had
been high on drugs at the time and not thinking sensibly when he contrived the supposed
plan to get the police to take the $20 back from defendant. He explained his failure to tell
the police dispatcher that defendant was the robber was also the result of his impaired
state. The same justification was given for his reported location of the robbery, a motel
some distance from anywhere he testified he was during the evening in question, as well
as what he described as his false report of his location.
1 All further references are to the Penal Code unless otherwise specified.
2
Rush admitted that he had spoken with police that evening and confirmed that the
robbery happened near the Comfort Inn motel, as he had said in the 911 call. He also
asserted that he had not identified the robber as defendant when he spoke to the
responding officers. Rush further testified that he had told police that the robber had
threatened him with a nail to his neck because he was “high . . . I was making it up as I
went along.” He then apologized to defendant from the witness stand.
Finally, Rush admitted that he was in custody on a probation violation for petty
theft, and that being a “snitch” could lead to unpleasant repercussions on the street.
The officer responding to the 911 call eventually located Rush, although not at the
Winchell’s establishment. Rush told him that a person he identified as defendant by
name had come up behind him and asked what he had in his hand. Defendant then thrust
at him with a large nail or spike and demanded money. Rush told the officer that he
complied.
Shortly thereafter, defendant was detained by a second officer based on the name
and description given by Rush. Rush was driven to that location, where he identified
defendant by saying, “That’s him right there.”
The first officer observed no indication that Rush was under the influence of a
narcotic or controlled substance.
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After being detained by the second officer, defendant spontaneously told this
officer, “I ain’t robbed nobody.” When asked by the officer why he mentioned robbery,
defendant stated, “It ain’t that hard to figure out.” He then shouted out to a female that
“Roosevelt’s trying to say that I robbed him.” The officer had not identified the victim
(Rush) by name. After being searched, defendant told the officer “you didn’t even find
no money on me,” although the officer had not identified the property taken.
When questioned by other officers, defendant claimed that he was the victim and
that Rush had pulled a knife on him when he, defendant, refused to buy drugs from Rush.
He never mentioned receiving a loan from Rush.
DISCUSSION
A.
Defendant first relies upon the corpus delicti rule to argue that there was
insufficient evidence that a robbery had been committed. That rule requires that the
charged crime be established by evidence other than the accused’s extrajudicial
statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1180 [holding that “Proposition
8” did not abrogate the corpus delicti rule in this respect].) The prosecution’s obligation
is merely to introduce sufficient other evidence to constitute a prima facie case that the
charged crime was committed. (People v. Martinez (1994) 26 Cal.App.4th 1098, 1104.)
The defendant’s statements then become fully admissible to strengthen the prosecution’s
case. (People v. Valencia (2008) 43 Cal.4th 268, 297; People v. Alvarez, supra, 27
Cal.4th at p. 1181.)
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Viewed under these rules, it appears obvious that the out of court statements of
Rush were sufficient to establish that a robbery had occurred and, in connection with
defendant’s own statements, made up constitutionally substantial evidence in support of
the verdict. (See Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Rountree
(2013) 56 Cal.4th 823, 852-853.) But defendant raises two arguments against this
conclusion.
First, he points out that at trial, Rush recanted his earlier version of what happened
and testified that it was untrue. However, his statements were admissible as substantive
evidence as prior statements inconsistent with his trial testimony. (Evid. Code, § 12352;
People v. Guerra (2006) 37 Cal.4th 1067, 1144.) As the Law Revision Commission
Comment to the statute points out, “[i]n many cases, the inconsistent statement is more
likely to be true than the testimony of the witness at the trial because it was made nearer
in time to the matter to which it relates and is less likely to be influenced by the
controversy that gave rise to the litigation.” The jury was fully entitled to so conclude in
this case.
2 “Evidence of a statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony at the hearing and is
offered in compliance with Section 770.” The latter relates to the opportunity for the
parties to examine the declarant with respect to the prior statement.
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Second, defendant notes that the jury found not true the allegation that defendant
personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) He therefore
argues that the jury must have completely disregarded Rush’s testimony, and convicted
him solely upon his own statements.
This conclusion does not follow. It is perfectly reasonable to suppose that the jury
was not persuaded by the sketchy evidence about the nail allegedly used by defendant
that it was in fact a “deadly or dangerous” weapon.
B.
Defendant also argues that he was improperly sentenced on one of six prior prison
term enhancements because he had not completed that term at the time of the current
offense. (See § 667.5; People v. Tenner (1993) 6 Cal.4th 559, 563.) The People concede
both that point and that because defendant was still subject to a term of mandatory
supervision following his most recent qualifying conviction (see § 667.5, subd. (b), as
amended), he had not “completed” that term.
Accordingly, the sixth prior prison term finding should be stricken and one year
subtracted from defendant’s sentence.
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DISPOSITION
The judgment of conviction is affirmed; the sentence is modified to a total of eight
years in prison. The trial court is directed to issue an amended abstract of judgment in
accordance with this opinion above and to forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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