People v. Vercher CA3

Filed 06/29/16 P. v. Vercher 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----

THE PEOPLE,

Plaintiff and Respondent, C074122

v. (Super. Ct. No. 12F2083)

IVAN ROOSEVELT VERCHER,

Defendant and Appellant.

A jury convicted defendant Ivan Roosevelt Vercher of three counts of second
degree robbery and one count of second degree commercial burglary. The jury also
found true allegations that a principal was armed with a firearm as to all counts. In a
bifurcated court trial, the trial judge found true the allegations that defendant suffered

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10 prior serious or violent felony convictions, that defendant was previously convicted in
two cases of serious felonies, and that defendant was previously convicted of robbery,
served a prison term for that offense, did not remain free of prison custody, and
committed an offense resulting in a felony conviction during a period of five years after
the conclusion of that prison term.
Defendant now contends (1) he was denied his constitutional right to testify
because he told his trial counsel he wanted to testify but his trial counsel did not call him
as a witness, (2) the trial court erred in admitting uncharged conduct evidence for the
purpose of explaining why defendant was under surveillance, (3) the trial court erred in
excluding impeachment evidence relating to Officer Chris Jacoby, (4) the trial court erred
in refusing to dismiss his prior strike convictions, and (5) he should have received an
additional 101 days of presentence credit.
We conclude (1) defendant failed to timely assert his constitutional right to testify
in his own defense, (2) the trial court erred in admitting uncharged conduct evidence for
the purpose of explaining why the police had defendant under surveillance, but the error
is harmless, (3) defendant fails to show the trial court erred in excluding evidence of
alleged misconduct by Officer Jacoby, (4) the trial court did not abuse its discretion in
declining to dismiss defendant’s prior strike convictions, and (5) we will remand this
matter so the trial court can determine the actual days defendant spent in custody and
award any presentence credit to which defendant is entitled, because the record does not
show how many days defendant was actually in custody following his arrest.
We will affirm the judgment in all other respects.
BACKGROUND
Law enforcement authorities were investigating a series of robberies from medical
marijuana collectives in Redding in the summer of 2011. On August 12, two young men,
wearing masks and gloves and carrying guns, entered Northern Patients Group, took
marijuana and cash, and hit an employee with a gun. The robbers fled toward a

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convenience store. Surveillance video from the convenience store showed a white
vehicle, like defendant’s white Range Rover with custom wheels, at the convenience
store near the time the Northern Patients Group robbery was reported to authorities.
Northern Patients Group had been robbed a few weeks prior and an employee of another
medical marijuana collective reported seeing a man she later identified as defendant
slowly driving a white sports utility vehicle past her collective on September 14.
Police identified defendant as a person of interest. Members of the Shasta
Interagency Narcotics Task Force conducted surveillance of defendant and his white
Range Rover on September 15.
Defendant lived in Redding with his girlfriend Janel and her 16-year-old son C.
Janel owned a Dodge Charger.
Cell phone records show defendant’s cell phone sent C.’s cell phone a text
message reading, “Hit me when you ready.” C.’s cell phone replied, “Yep.”
Police saw defendant leave his apartment in the Charger. Officer Chris Jacoby, a
member of the surveillance team, testified defendant appeared to talk on a cell phone
while he was at a bank parking lot. Cell phone records show defendant’s cell phone
received a call from the cell phone of Josh Wright, a friend of C.’s, lasting seven seconds.
Defendant’s cell phone sent Josh’s cell phone a text message reading, “I’m here.”
Defendant’s cell phone sent the same message to C.’s cell phone.
Officer Jacoby did not observe defendant continuously while he was in the bank
parking lot. However, Officer Jacoby said he saw defendant get out of the car and looked
in a southeasterly direction while on the cell phone. Officer Jacoby said a person
standing in the bank parking lot where defendant stood could see the front door of the
Trusted Friends medical marijuana collective.
Surveillance video from Trusted Friends showed two men entered the collective at
6:43 p.m. Brittany Whitmore, Rikki Apple, and Jade Brewer were getting ready to close
the collective for the day when the two men entered. The two men who entered the

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collective were Josh and E., another friend of C.’s.1 Josh held a cell phone to his ear
during the robbery.
E. pointed a gun at Whitmore, Apple, and Brewer. Whitmore, Apple, and Brewer
put cash and about 15 jars containing marijuana worth at least $10,000 into a duffel bag
upon E.’s command. E. or Josh asked Whitmore, Apple, and Brewer if there was a safe.
Apple and Brewer replied in the negative.
Surveillance video showed the robbers leave Trusted Friends. Whitmore called
911 after E. exited the back door.
Officer Jacoby saw defendant leave the bank parking lot. About 30 seconds after
defendant left the bank parking lot, Officer Jacoby heard an advisement about the Trusted
Friends robbery. Law enforcement officials stopped the Charger and placed defendant
under arrest. Defendant’s cell phone received multiple calls from C. and Josh after
defendant was apprehended.
E. testified for the prosecution at defendant’s trial. Among other things, he said he
did not know who came up with the idea of committing the robbery, but he went along
with the idea. C. and Josh did not say someone was watching the front of Trusted
Friends. E. did not see defendant that day. He never spoke to defendant about
committing a robbery. No one told E. defendant was involved in the robbery. But E. saw
Josh speaking on a cell phone. He heard Josh say, “we’re here.” E. waited for Josh to
give him the “go-ahead.”

1 E. pleaded guilty to one count of second degree robbery and admitted personal use of a
firearm during the commission of the robbery, pursuant to a plea agreement under which
he received probation. E. was 16 years old at the time of the robbery. Josh pleaded no
contest to and was convicted of second degree robbery. He also pleaded guilty to the
August 23 second degree commercial burglary of another marijuana collective in
Redding.

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 E. previously told police Josh was talking to someone on a cell phone when Josh
and E. were behind a dumpster, and E. heard Josh say, “is it clear? Are we, are we good
to go?” to “somebody[,] like the person was sittin’ there watching us.” But when
defendant called him as a witness at the trial, E. testified he could not recall what, if
anything, Josh said on his cell phone. E. testified that if he told police he heard Josh say
something in particular on his cell phone, it was probably a lie.
Police interviewed C. on September 16 and 19. Recordings of C.’s statements to
police were played at the trial. C. told police, during his second interview, that defendant
asked C. to pick up a car for Josh to use for a robbery, and defendant expected to receive
a “cut” from the robbery.
C. also gave police information linking defendant to the Northern Patients Group
robbery. C. said Josh admitted committing the Northern Patients Group robbery with an
individual named Deedee. According to C., Josh said defendant gave Josh the layout of
Northern Patients Group, and defendant waited by a gas station and picked up Josh and
Deedee. C. saw defendant with three or four pounds of marijuana in a duffel bag.
Defendant told C. the marijuana was from Josh and defendant was going to sell the
marijuana. Josh confirmed to C. that he gave defendant marijuana as defendant’s “cut.”
But C. recanted at the trial.
Police interviewed defendant on September 15 and 16. Recordings of those
interviews were played at the trial. Defendant admitted he knew Josh was “doing a
robbery” but defendant claimed he did not know where the robbery was going to take
place. Defendant said Josh asked defendant to pick up Josh at the Redding Inn, and
defendant stopped at the bank parking lot to urinate. Defendant admitted he was talking
on the cell phone with Josh during the robbery, but insisted he did not know Josh was
committing a robbery during the call. Defendant denied he was involved in the
marijuana collective robberies.

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 The jury found defendant guilty of three counts of second degree robbery (Pen.
Code, § 211)2 and one count of second degree commercial burglary (§ 459). The jury
found the allegation that a principal was armed with a firearm (§ 12022, subd. (a)(1))
to be true as to all counts. In a bifurcated court trial, the trial judge found true the
allegations that defendant had 10 prior strike convictions (§ 1170.12), was previously
convicted of a serious felony in two cases (§ 667, subd. (a)(1)), and was previously
convicted of robbery (§ 211), served a prison term for that offense, did not remain free of
prison custody and committed an offense resulting in a felony conviction during a period
of five years subsequent to the conclusion of that prison term (§ 667.5, subd. (b)).
The trial court sentenced defendant to a determinate prison term of 14 years and an
indeterminate prison term of 75 years to life.
DISCUSSION
I
Defendant argues he was denied his constitutional right to testify because he told
his trial counsel Michael C. Borges, during the People’s case-in-chief, that he wanted to
testify but Borges failed to inform the trial court of his wish and to call him as a witness.
A criminal defendant has a constitutional right to testify in his own defense. (Rock
v. Arkansas (1987) 483 U.S. 44, 51-53 [97 L.Ed.2d 37, 46-47].) A defendant who wants
to testify may even do so over the objection of his attorney. (People v. Robles (1970)
2 Cal.3d 205, 214-215.) However, a defendant must timely and adequately assert his
right to testify. (People v. Guillen (1974) 37 Cal.App.3d 976, 984 (Guillen).) When a
defendant does not timely and adequately assert his right to testify, “ ‘a trial judge may
safely assume that a defendant who is ably represented and who does not testify is merely
exercising his Fifth Amendment privilege against self-incrimination and is abiding by his

2 Undesignated statutory references are to the Penal Code.

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counsel’s trial strategy.’ ” (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231 (Hayes);
see People v. Bradford (1997) 14 Cal.4th 1005, 1053.)
Defendant had numerous opportunities to inform the trial judge he wanted to
testify before the jury returned its verdict, and defendant failed to do so. After defendant
started presenting evidence in his case-in-chief, the trial judge spoke with defendant,
outside the presence of the jury, about testifying. The trial judge told defendant, “I want
you to discuss this with your attorney as you see fit. You have an absolute right to testify
in your own defense, even if your attorney advises you not to. And if you want to testify,
nobody can stop you. [¶] But if you do decide to testify, understand that the Prosecution
can thoroughly cross-examine you on every issue and piece of information on which you
do testify. [¶] You also have an absolute right to remain silent under the Fifth
Amendment. It is your privilege against self-incrimination. And if you do decide you
want to remain silent, nobody -- not me, not law enforcement, not the DA, not your
lawyer -- can make you testify. It is going to purely voluntary [sic] of your own choice.
[¶] You should listen to your lawyer’s advice about this issue. That’s one of the reasons
you have him. But the ultimate decision is yours. [¶] Do you understand that?”
Defendant replied in the affirmative. The trial judge continued, “if you decide not to
testify and you and your lawyer want me to, I will tell the jurors that they cannot consider
your silence as evidence against you. Understood?” Defendant again replied in the
affirmative. The prosecution had already played recordings of defendant’s police
interviews at that point in the trial.3 Defendant did not tell the trial judge he wanted to
testify.

3 As defendant acknowledges on appeal, the prosecutor played recordings of defendant’s
statements to police during the People’s case-in-chief and before defendant presented his
case. Defendant and Borges incorrectly recalled, in the trial court, that the prosecutor
played the recordings during the People’s rebuttal.

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 Thereafter, in the context of discussing which of defendant’s prior crimes would
be admitted for purposes of impeachment should defendant testify, the trial judge said,
outside the presence of the jury, he had already discussed defendant’s right to testify with
defendant. The trial judge asked whether defendant felt he had learned enough from the
judge about the issue, and defendant replied “yes.” Defendant did not say he wanted to
testify. He rested his case later that afternoon without any indication in the record that he
wanted to take the stand.
Also prior to the receipt of the verdict, defendant was present at the jury
instruction conference when the trial court discussed giving the CALCRIM No. 355
instruction relating to a defendant’s right not to testify. The CALCRIM No. 355
instruction states a defendant has an absolute right not to testify and the jury must not
consider, for any reason, the fact that the defendant did not testify. Borges agreed the
trial court should give the CALCRIM No. 355 instruction. Again, defendant did not say
he wanted to testify.
Defendant or his trial counsel raised the issue of defendant’s desire to testify for
the first time about four and a half months after the jury returned its verdict. Defendant
raised an ineffective assistance of counsel claim after the jury returned its verdict and the
enhancement allegations against defendant were found to be true. Defendant asserted
that, when the prosecutor played a recording of defendant’s police interview at the trial,
defendant told Borges he “wanted to testify for sure,” but Borges failed to call defendant
to the stand. Borges told the trial court, during an in camera hearing, that defendant
mentioned a “newly discovered desire to testify” when the prosecution played a recording
of defendant’s police interview to the jury. However, Borges said he did not specifically
recall that defendant wanted to testify, although it was possible he missed defendant’s
request and closed the evidence too quickly. The trial court relieved Borges and
appointed defendant new trial counsel without making a finding that Borges had rendered
ineffective assistance of counsel. Defendant subsequently moved for a new trial on the

8
ground that he was denied his constitutional right to testify. Defendant called Borges as a
witness in connection with his new trial motion. Borges testified that defendant said, “ ‘I
think I might want to testify’ ” or “ ‘I think I want to testify’ ” when the prosecution was
playing a recording to the jury. According to Borges, defendant did not affirmatively
state he wanted to testify. Defendant also testified in support of his new trial motion.
He maintained he told Borges he wanted to testify.
The trial court had an opportunity to observe Borges and defendant and credited
Borges’s testimony. The trial court found defendant made an equivocal statement to
Borges that he may want to testify. The trial court found defendant did not apprise the
trial judge that he wanted to testify before the jury rendered its verdict.
A defendant “ ‘may not await the outcome of the trial and then seek reversal based
on his claim that despite expressing to counsel his desire to testify, he was deprived of
that opportunity.’ ” (People v. Alcala (1992) 4 Cal.4th 742, 805-806 (Alcala); Hayes,
supra, 229 Cal.App.3d at pp. 1231-1232; Guillen, supra, 37 Cal.App.3d at pp. 984-985.)
We reject defendant’s claim because he failed to timely inform the trial court that he
wanted to testify.
Even if we assume defendant was denied his constitutional right to testify, there is
no prejudice in this case. The denial of the right to testify is subject to harmless error
analysis under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman).
(People v. Allen (2008) 44 Cal.4th 843, 848, 871-872; People v. Johnson (1998) 62
Cal.App.4th 608, 634-636.) Under Chapman, the denial of a defendant’s right to testify
is harmless error if it can be shown beyond a reasonable doubt that the error did not
contribute to the guilty verdict. (Johnson, supra, 62 Cal.App.4th at p. 635.) The
exclusion of a defendant’s testimony is harmless if the facts to which the defendant
offered to testify would not have affected the verdict. (Allen, supra, 44 Cal.4th at p. 872.)
Defendant testified, in connection with his motion for a new trial, that if he had
taken the stand at trial he would have explained the “reasonings” for the actions the

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surveillance team observed on September 15. In particular, defendant wanted to tell the
jury why he was in the bank parking lot at the time of the robbery. Defendant said he
would have testified he was at the bank parking lot to pick up Josh because Josh asked
defendant to pick up Josh at their “meeting spot” where defendant picked up Josh every
day. But those facts were actually presented to the jury.
The jury watched a recording of defendant’s September 15 police interview.
During that interview, defendant explained that Josh asked defendant to pick him up at
the Redding Inn. Defendant said he stopped at the bank parking lot, which was near
Redding Inn, to look for Josh and because defendant needed to urinate. Defendant said
he had picked up Josh at the Redding Inn many times. At his second police interview,
defendant again told police that Josh called defendant and asked defendant to pick him up
at the Redding Inn. Defendant said he drove to the Redding Inn, did not see anyone
there, stopped at the bank to urinate, circled around, left to go home, and was then
stopped by police.
In sum, defendant explained to police why he was at the bank parking lot, and that
portion of his police interview was played to the jury. Any error in defendant not taking
the stand is harmless because the facts to which defendant said he would have testified
were actually presented to the jury.
II
Defendant also contends the trial court erred in admitting uncharged conduct
evidence for the purpose of explaining why defendant was under surveillance.
The People sought to admit evidence that (1) defendant had 10 prior robbery or
attempted robbery convictions; (2) an employee of a medical marijuana collective saw a
white Range Rover driven by a black male cruise slowly past her collective, as if
“casing” it, the day before the Trusted Friends robbery; and (3) defendant was involved
in the Northern Patient’s Group robbery. The People sought to admit the above
uncharged conduct evidence for two purposes. The People wanted to show, pursuant

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to Evidence Code section 1101, subdivision (b), defendant’s knowledge that Josh and E.
were committing a robbery at Trusted Friends; defendant intended to assist in that
robbery by acting as a lookout; there was a common plan in that the Trusted Friends
robbery was similar to the robberies defendant previously committed; and the absence of
mistake. In addition, the People sought to present the uncharged conduct evidence for the
nonhearsay purpose of explaining why the police were following defendant on
September 15.
The trial court admitted the uncharged conduct evidence under Evidence Code
section 1101, subdivision (b). Defendant does not challenge that ruling. However,
defendant challenges the trial court’s ruling that the uncharged conduct evidence is
admissible to explain why the police were surveilling defendant.
Only relevant evidence is admissible. (Evid. Code, § 350.) “ ‘Relevant evidence’
means evidence, including evidence relevant to the credibility of a witness or hearsay
declarant, having any tendency in reason to prove or disprove any disputed fact that
is of consequence to the determination of the action.” (Evid. Code, § 210.) The
reasonableness of the determination by law enforcement officials to follow defendant
is irrelevant to any disputed issue in the trial. (People v. Lucero (1998) 64 Cal.App.4th
1107, 1109-1110 [it is error to admit evidence that a witness told the testifying officer the
robber left a particular shoeprint for the purpose of explaining why the officer lifted that
shoe print where the good faith or reasonableness of the officer’s conduct had no
tendency in reason to prove any disputed issue of fact in the action].) The prosecutor
argued it was important for the jury to know why the police were watching defendant
because, without the uncharged conduct evidence, the jury may believe defendant was a
“law abiding citizen who has become inexplicably the focus of all this police attention”
and the jury might “speculate about race and maybe the Redding police are focusing on
him because he’s African-America[n].” But defendant did not claim the police were
acting in bad faith in following defendant. Accordingly, it was error for the trial court

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to admit the uncharged conduct evidence for the purpose of explaining why the police
had defendant under surveillance.
Defendant claims the admission of evidence about why police suspected he was
involved in the medical marijuana collective robberies -- i.e., his prior robbery
convictions and evidence tying him to the Northern Patients Group robbery -- rendered
his trial fundamentally unfair; therefore, the Chapman, supra, 386 U.S. 18 [17 L.Ed.2d
705] standard of prejudice applies. We disagree.
Criminal propensity is not the only inference to be drawn from the uncharged
conduct evidence. As defendant acknowledges, the uncharged conduct evidence was
also admitted, pursuant to Evidence Code section 1101, subdivision (b), to show intent,
motive, common plan or scheme, and absence of mistake or accident. Defendant does
not challenge the trial court’s ruling that the uncharged conduct evidence is relevant for
those purposes.
The trial court repeatedly instructed the jury it may not use uncharged crime
evidence to conclude that defendant was more likely to have committed the charged
crimes because he committed the uncharged crimes. The trial court instructed that other
crimes evidence admitted for the purpose of showing intent, motive, common plan or
scheme, and absence of mistake or accident was not sufficient, by itself, to prove
defendant’s guilt of the charged crimes. We presume the jury followed the trial court’s
instructions on the limited use of uncharged conduct evidence. (People v. Lindberg
(2008) 45 Cal.4th 1, 26.)
Moreover, the trial court allowed defendant to present evidence about other
marijuana collective robberies and burglaries in Redding in the summer of 2011 in order
to argue that third parties, and not defendant, committed the Trusted Friends robbery.
Under these circumstances, the admission of evidence about the reasons for the
surveillance of defendant did not render defendant’s trial fundamentally unfair.

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 “[G]enerally, violations of state evidentiary rules do not rise to the level of federal
constitutional error.” (People v. Benavides (2005) 35 Cal.4th 69, 91.) We review error in
admitting irrelevant evidence under the People v. Watson (1956) 46 Cal.2d 818 standard
of prejudice. We must determine whether it is reasonably probable, in light of the other
evidence, that the jury would have reached a result more favorable to the defendant had
the challenged evidence been excluded. (Alcala, supra, 4 Cal.4th at p. 797.)
Even if it was error to admit the uncharged conduct evidence, it is not reasonably
probable defendant would have obtained a more favorable result. Defendant procured the
car which C., Josh, and E. used in the Trusted Friends robbery. Phone records indicate
defendant, C., and Josh coordinated their movements near Trusted Friends before the
robbery, and defendant spoke with Josh on his cell phone during the robbery. Defendant
was at the Union Bank parking lot, which was near Trusted Friends. E. saw Josh talking
on a cell phone before the robbery. E. heard Josh say, “we’re here” into his cell phone.
Although he later recanted, E. told police he heard Josh say “is it clear? Are we, are we
good to go?” into his cell phone. Witnesses inside Trusted Friends saw one of the
robbers held a cell phone to his ear during the robbery. Defendant left the bank parking
lot about 30 seconds before Officer Jacoby received a report that Trusted Friends had
been robbed.
C. told police defendant recruited C. to drop off Vanessa Pride’s car for Josh
to use in a robbery. C. recanted his police statement at the trial. But, according to C.’s
aunt, C. confided that he and defendant were involved in the Trusted Friends robbery.
The jury was entitled to discredit C.’s trial testimony and believe his statement to police
implicating defendant.
A reasonable trier of fact could find defendant procured the getaway vehicle for
the Trusted Friends robbery and acted as a lookout for C., Josh and E. A rational fact
finder could also conclude defendant lied to police, evincing a guilty conscience.
Defendant was untruthful to police, during his first interview, about what he was doing

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just prior to stopping at the bank parking lot. Defendant told police he drove around
Martin Luther King park looking for C. and Josh. However, the officers who were
following defendant did not see defendant drive near the park.
Considering the evidence of defendant’s guilt, the trial court’s instructions with
regard to the limited use of uncharged conduct evidence, and the admission of third party
culpability evidence, we conclude the error in admitting uncharged conduct evidence for
the purpose of explaining why defendant was under surveillance does not require reversal
of the judgment.
III
Defendant next argues the trial court erred in excluding impeachment evidence
relating to Officer Jacoby.
The People moved in limine to exclude evidence that Officer Jacoby had a six-
year-old conviction for misdemeanor DUI, arguing that misdemeanor DUI is not a crime
of moral turpitude. Defendant responded it was Officer Jacoby’s attempt to bribe a
public official during the DUI investigation which was significant, not the fact of Officer
Jacoby’s misdemeanor conviction. Defendant’s trial counsel argued the attempted
bribery incident was relevant to Officer Jacoby’s credibility “and whether or not that
failed attempt in his continued employment with the Redding Police Department has an
affect [sic] on his motives insofar as what he might testify to and how he might conduct
an investigation, the kinds of things he might do or not do, whether he might exaggerate
in order to conform his testimony to what might be expect [sic] by his peers, his superiors
or the People insofar as they are represented by the District Attorney’s Office here.”
Defendant offered to prove the following: Millville Fire Captain Scott Tassen
encountered Officer Jacoby near a disabled vehicle on Highway 44 on March 24, 2006.
Captain Tassen asked Officer Jacoby whether he was the only person who was in the
disabled vehicle. Officer Jacoby said “no” but later changed his answer. Officer Jacoby
asked Captain Tassen to tell dispatch the disabled vehicle was empty and to leave.

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Captain Tassen declined. Officer Jacoby said, “Well, I’ve done lots of favors for the
Millville Fire Department in the past. Why can’t you do me a favor here?” Captain
Tassen refused to leave. He waited for the arrival of the California Highway Patrol who
conducted a DUI investigation.
The prosecutor argued Officer Jacoby’s alleged misconduct did not constitute
attempted bribery. The prosecutor further urged the proffered evidence was not probative
of Officer Jacoby’s credibility and its admission would require an undue consumption
of time.
The trial court granted the People’s in limine motion, concluding the alleged
conduct was not an attempt to bribe a public official. The trial court said the alleged
conduct was not much different than “a pretty girl trying to convince a male police
officer by smiling at him and saying, ‘Hey, can’t you give a girl a break?’ ” The trial
court also noted the alleged misconduct occurred six years prior. The trial court found
the proffered evidence was not significantly probative and had a tendency to misdirect
the jury.
Defendant contends the trial court erred in concluding Officer Jacoby’s alleged
misconduct does not constitute bribery. No error occurred in this respect. A “bribe”
is “anything of value or advantage, present or prospective, or any promise or undertaking
to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the
person to whom it is given, in his or her action, vote, or opinion, in any public or official
capacity.” (§ 7, subd. (6); People v. Gaio (2000) 81 Cal.App.4th 919, 928-929 [bribery
is the giving or receipt of something of value with the intent of influencing the recipient’s
official vote, action, or opinion].) Defendant’s offer of proof does not show that Officer
Jacoby gave or offered to give Captain Tassen something of value with the intent of
influencing Captain Tassen’s official action.
Defendant says even if Officer Jacoby’s conduct does not amount to bribery,
it is an act of moral turpitude with which Officer Jacoby could be impeached. We agree

15
a jury could reasonably infer from defendant’s offer of proof that Officer Jacoby was
dishonest and, thus, not worthy of credit. (People v. Wheeler (1992) 4 Cal.4th 284, 296,
fn. 6 (Wheeler), superseded by statute on another point as noted in People v. Duran
(2002) 97 Cal.App.4th 1448, 1459-1461 [impeaching misconduct need not constitute a
crime]; People v. Mickle (1991) 54 Cal.3d 140, 168; People v. Alcalde (1944) 24 Cal.2d
177, 184-185.) Nonetheless, we conclude defendant has not established error.
Even if Officer Jacoby’s alleged misconduct involves moral turpitude,
admission of such evidence is subject to the trial court’s discretion, under Evidence Code
section 352, to exclude evidence if its probative value is substantially outweighed by the
probability that its admission will necessitate undue consumption of time or create
substantial danger of undue prejudice, confusing the issues, or misleading the jury.
(Evid. Code, § 352; People v. Quartermain (1997) 16 Cal.4th 600, 623 [“notwithstanding
the confrontation clause, a trial court may restrict cross-examination of an adverse
witness on the grounds stated in Evidence Code section 352”]; Wheeler, supra, 4 Cal.4th
at pp. 295-296.) Here, the trial court found the alleged misconduct by Officer Jacoby was
remote, had a tendency to misdirect the jurors, and was not significantly probative. There
is no evidence in the record that, unlike the alleged 2006 DUI incident, Officer Jacoby
had a motive to lie in this case. Defendant asserts the trial court abused its discretion
under Evidence Code section 352. But he fails to provide any analysis supporting the
claim and, thus, forfeits it. (People v. Whalen (2013) 56 Cal.4th 1, 72, fn. 28; People v.
Earp (1999) 20 Cal.4th 826, 881; People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.)
Defendant thereby fails to show the trial court erred in excluding evidence of the alleged
misconduct by Officer Jacoby.
We would conclude any error is harmless beyond a reasonable doubt even if we
view the exclusion of the proffered evidence as constitutional error, as defendant urges.
The exclusion of cross-examination designed to attack the credibility of a witness violates
a defendant’s constitutional right to confront witnesses if the prohibited cross-

16
examination would have produced a significantly different impression of the witness’s
credibility. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684].)
Improper denial of cross-examination requires reversal unless the error was harmless
beyond a reasonable doubt. (Id. at p. 684 [89 L.Ed.2d at p. 686].) Whether the
constitutionally improper exclusion of impeachment evidence is harmless depends on
factors including the importance of the witness’s testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and the overall strength of the prosecution’s case.
(Ibid.)
While Officer Jacoby’s testimony is important to the prosecution’s case, other
evidence corroborates his testimony and establishes defendant’s guilt. (People v. Brown
(2003) 31 Cal.4th 518, 546 [finding any Confrontation Clause error harmless beyond a
reasonable doubt where witness’s testimony was largely consistent with that of other
witnesses and other evidence supported the defendant’s guilt].) Officer Jacoby’s
testimony established defendant stopped at the bank parking lot, he appeared to talk on a
cell phone, and he looked in the direction of Trusted Friends. Defendant admitted to
police he was at the bank parking lot near Trusted Friends during the robbery. A
recording of radio communication between members of the surveillance team, which was
played to the jury, also corroborates Officer Jacoby’s testimony that defendant stopped at
the bank parking lot and the Trusted Friends robbery was reported after defendant left the
bank parking lot. People’s exhibit 30 shows the front of Trusted Friends was visible from
the bank. While no other witness testified about where defendant looked when he was at
the bank parking lot, defendant admitted he was talking to Josh during the robbery. Cell
phone records confirm the communications between defendant and Josh immediately
before and during the commission of the Trusted Friends robbery, when police saw
defendant at the bank parking lot and when E. and the victims saw Josh talking on a cell

17
phone. E. testified he waited for Josh, who was speaking on a cell phone, to give E. the
“go-ahead” for the robbery. In addition, the testimonies of Officer John Thulin, Vanessa
Pride, C., and E. establish defendant obtained the car used in the Trusted Friends robbery.
And C. implicated defendant in the Trusted Friends robbery in one of his statements to
police and in a statement to his aunt.
Further, defendant discredited Officer Jacoby’s testimony in other ways. Officer
Jacoby admitted, during cross-examination, he could not remember exactly how many
times the Charger left the apartment complex and he did not observe defendant the entire
time defendant was at the bank parking lot. Defendant’s trial counsel argued to the jury
that Officer Jacoby and the police concluded defendant was involved in the marijuana
collective robberies based on his prior convictions, and the police conducted an
inadequate investigation. Defendant’s trial counsel criticized Officer Jacoby for not
wearing a watch, not paying attention to what defendant was doing, and not documenting
his observations. He challenged Officer Jacoby’s testimony that defendant was parked at
the bank when the Trusted Friends robbery occurred. He also attacked the prosecution’s
theory that defendant acted as a look-out, arguing defendant could not see a particular
street and the back of Trusted Friends from his alleged position at the bank parking lot.
We conclude there was no prejudicial error.
IV
Defendant further argues the trial court erred in refusing to dismiss his prior strike
convictions.
Defendant had 10 prior strike convictions. One relates to a robbery that occurred
on July 30, 1999, in Lassen County. The other nine strikes relate to second degree
robberies or attempted second degree robberies that occurred on four dates in April 2000,
in Shasta County. Defendant moved to dismiss all but one of his prior strike convictions.
The trial court denied defendant’s motion. It said the current offenses were
serious and violent felonies. Defendant used minors to commit the Trusted Friends

18
robbery, his crimes were sophisticated in nature, and he committed numerous prior
robberies. There was no significant break in his prior serious or violent conduct.
According to the trial court, defendant had been in prison or committing crimes as an
adult and granting his motion would subvert the purposes of the three strikes law.
Defendant contends the trial court abused its discretion in not dismissing his prior
strike convictions because nine of the strike priors arose from crimes committed during a
“short continuous period of law breaking” and “a short period of aberrant behavior.”
A trial court may dismiss an allegation or finding under the Three Strikes law that
the defendant has previously been convicted of a serious and/or violent felony, on its own
motion, “ ‘ “in furtherance of justice” ’ ” pursuant to section 1385. (People v. Carmony
(2004) 33 Cal.4th 367, 373 (Carmony).) We review the trial court’s section 1385 ruling
for abuse of discretion. (Id. at pp. 373-376.) This standard is deferential. (People v.
Williams (1998) 17 Cal.4th 148, 162.) We presume the trial court’s section 1385 ruling is
proper. (Carmony, supra, 33 Cal.4th at pp. 376-378.) The party attacking the sentence
bears the burden of clearly showing the trial court’s ruling is unreasonable in light of the
applicable law and the relevant facts. (Id. at p. 376; Williams, supra, 17 Cal.4th at p.
162.) “ ‘[W]here the record demonstrates that the trial court balanced the relevant facts
and reached an impartial decision in conformity with the spirit of the law, we shall affirm
the trial court's ruling, even if we might have ruled differently in the first instance.’ ”
(Carmony, supra, 33 Cal.4th at pp. 378.) We do not substitute our judgment for that of
the trial court, and we will not reverse the trial court’s sentencing decision merely
because reasonable people might disagree. (Id. at pp. 377-378.)
“ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do
other sentencing laws, but establishes a sentencing requirement to be applied in every
case where the defendant has at least one qualifying strike, unless the sentencing court
“conclud[es] that an exception to the scheme should be made because, for articulable
reasons which can withstand scrutiny for abuse, this defendant should be treated as

19
though he actually fell outside the Three Strikes scheme.” ’ [Citation.] [¶] Consistent
with the language of and the legislative intent behind the three strikes law, we have
established stringent standards that sentencing courts must follow in order to find such an
exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on its own motion, “in
furtherance of justice” pursuant to . . . section 1385(a), or in reviewing such a ruling, the
court in question must consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.’ ” (Carmony,
supra, 33 Cal.4th at p. 377.)
The record shows the trial court was aware of its discretion under section 1385,
and it considered relevant factors in deciding whether to dismiss the prior strike
convictions. Taking into account the factors set forth in Carmony, supra, 33 Cal.4th 367,
we conclude the trial court did not abuse its discretion when it declined to dismiss
defendant’s prior strike convictions. Defendant was armed with a shotgun during the
1999 Lassen County robbery. He was armed with a “plastic popper-type weapon” that
looked like a real handgun during some of the 2000 Shasta County robberies. He pleaded
guilty to the six counts of second degree robbery and three counts of attempted second
degree robbery and received a reduced sentence of 11 years in prison. He committed
additional felonies while in prison and received additional prison terms. He committed
the present offenses, which involved the use of a firearm and minors, about seven months
after he was released from prison and still on parole. There was evidence defendant
helped Josh commit another marijuana collective robbery and that defendant shared in the
proceeds of that robbery.

20
 The cases defendant likens to his -- People v. Burgos (2004) 117 Cal.App.4th
1209 (Burgos) and People v. Garcia (1999) 20 Cal.4th 490 (Garcia) -- are
distinguishable. In People v. Benson (1998) 18 Cal.4th 24 (Benson), the California
Supreme Court considered whether a prior strike conviction on which sentence was
stayed pursuant to section 654 constitutes a strike under the three strikes law. The
Supreme Court ruled, based on the language, legislative history, and legislative purpose
of the three strikes law, that a qualifying prior conviction on which sentence was stayed
is nevertheless a strike prior. (Benson, at pp. 26-27.) The Supreme Court observed,
however, that a trial court retains its discretion to strike a prior felony conviction under
section 1385. (Benson, at p. 36.) The Supreme Court did not decide in that case
“whether there are some circumstances in which two prior felony convictions are so
closely connected -- for example, when multiple convictions arise out of a single act by
the defendant as distinguished from multiple acts committed in an indivisible course of
conduct -- that a trial court would abuse its discretion under section 1385 if it failed to
strike one of the priors.” (Benson, at p. 36, fn. 8.)
Relying on the Benson dicta, the appellate court in Burgos held it was an abuse
of discretion for the trial court not to strike one of the defendant’s prior strikes where,
among other things, those strikes arose from a single criminal act. (Burgos, supra,
117 Cal.App.4th at pp. 1216-1217.) But unlike in Burgos, the record here does not
establish that any two or more of defendant’s strike priors arose from a single criminal
act. The Lassen and Shasta County strike priors involve different victims and/or different
dates. Unlike the strike priors in this case, the strikes in Burgos were against one victim
and were committed during a single incident. (Id. at p. 1212, fn. 3.) The Benson dicta
and Burgos do not apply to this case.
In Garcia, the trial court exercised its discretion under section 1385 to dismiss
prior conviction allegations with respect to one count but not another. (Garcia, supra,
20 Cal.4th at pp. 492-493.) The California Supreme Court rejected the Attorney

21
General’s claim that the trial court’s decision was an abuse of discretion. (Id. at pp. 493,
503.) The Supreme Court noted the defendant’s prior convictions arose from a single
period of aberrant behavior for which he served a single prison term, the defendant
cooperated with police, his crimes were related to drug addiction, and his criminal history
did not include any actual violence. (Id. at p. 503.) The Supreme Court said those
circumstances indicate the defendant may be deemed outside the spirit of the three strikes
law, at least in part. (Ibid.)
In contrast with the prior strikes in Garcia, defendant’s April 2000 Shasta County
crimes are not aberrant behavior or a single instance of criminality because about nine
months prior to the April 2000 crimes defendant committed an armed robbery in Lassen
County. Additionally, defendant committed the current offenses about seven months
after he was released from prison in connection with the sentence on his prior strike
convictions. And defendant was still on parole at the time of this robbery. Also unlike
the prior strikes in Garcia, defendant’s April 2000 prior strikes were not committed on
the same day. (Garcia, supra, 20 Cal.4th at p. 493.) The April 2000 prior strikes were
committed on different dates against different victims, except for two crimes which were
committed against the same victim but on different dates. Unlike the defendant in
Garcia, defendant did not cooperate with police in this case. And defendant’s criminal
history includes the use of a firearm or apparent firearm.
We will not disturb the trial court’s exercise of discretion.
V
In addition, defendant contends he should have received 734 days of presentence
credit rather than 633 because he was continuously in custody from the time of his
September 15 arrest until his June 14, 2013, sentencing hearing. Defendant says he is

22
entitled to presentence credit consisting of 639 actual custody days and 95 conduct days
pursuant to section 2933.1.4
Defendant received 633 days of presentence credit, which the trial court found
consisted of 551 actual days in custody and 82 conduct days. His trial counsel did not
raise any issue concerning presentence credit.
Defendant correctly observes this court can correct computational errors in the
calculation of presentence credit. (People v. Duran (1998) 67 Cal.App.4th 267, 270.)
But the record does not show how many days defendant was actually in custody
following his September 15 arrest. The trial court is in the best position to resolve this
factual issue. (See People v. Fares (1993) 16 Cal.App.4th 954, 958-960.) We will
remand the matter to the trial court to determine the number of days defendant spent in
custody and to adjust his presentence credit if appropriate. (People v. Muniz (1993)
16 Cal.App.4th 1083, 1088; People v. Wischemann (1979) 94 Cal.App.3d 162, 175.)
DISPOSITION
We remand the matter to the trial court to determine all actual days defendant
has spent in custody on this matter, to award any presentence credit to which defendant

4 Section 2933.1 provides, “(a) Notwithstanding any other law, any person who is
convicted of a felony offense listed in subdivision (c) of Section 667.5[, which includes
robbery,] shall accrue no more than 15 percent of worktime credit, as defined in Section
2933. [¶] (b) The 15-percent limitation provided in subdivision (a) shall apply whether
the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7
of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall
affect the requirement of any statute that the defendant serve a specified period of time
prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible
for credit be eligible for credit pursuant to this section. [¶] (c) Notwithstanding Section
4019 or any other provision of law, the maximum credit that may be earned against a
period of confinement in, or commitment to, a county jail, industrial farm, or road camp,
or a city jail, industrial farm, or road camp, following arrest and prior to placement in the
custody of the Director of Corrections, shall not exceed 15 percent of the actual period of
confinement for any person specified in subdivision (a).”

23
is entitled, and to prepare, if necessary, an amended abstract of judgment and forward
a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed
in all other respects.

/S/
MAURO, J.

I concur:

/S/
NICHOLSON, Acting P. J.

24
MURRAY, J., Concurring.
I concur with the majority opinion except for the reasoning in part III of the
Discussion.
I agree with the majority that, “a jury could reasonably infer from defendant’s
offer of proof that Officer Jacoby was dishonest and, thus, not worthy of credit.” (Maj.
opn., ante, at p. 16.) But I cannot agree with the majority’s view of the trial court’s
Evidence Code section 352 balancing analysis. The focus of the trial court in
determining the probative value of this evidence appears to have been on Jacoby’s
personal motivation to avoid prosecution and that Jacoby’s conduct did not constitute a
crime. In explaining its ruling, the trial court said, “ ‘I’ve done you guys favors in the
past, can’t you do one for me,’ it’s just a more specific way of saying give me a break.
I’m a fellow law enforcement officer. Give me a break. [¶] . . . That’s not much
different than a pretty girl trying to convince a male police officer by smiling at him and
saying ‘Hey, can’t you give a girl a break?’ I don’t think I’d allow any impeachment for
that. And if it was the other way around, one sex as to the other or any other type of
persuasion, that doesn’t amount to committing a crime, I don’t think I would consider
allowing impeachment with that.”
The offer of proof included evidence that Officer Jacoby suggested that Captain
Tassen lie to his department by telling dispatch the vehicle Tassen found was abandoned.
When Tassen said he could not do that, Jacoby said, “ ‘Well, I’ve done lots of favors for
the Millville Fire Department in the past. Why can’t you do me a favor here?’ ” In
context, an inference could be drawn from this comment that Officer Jacoby gave breaks
to other people who may have broken the law in the past. In this respect, the proffered
evidence is not the same as a smiling “pretty girl” asking for a break. The evidence tends
to show that Jacoby saw nothing wrong with Tassen being dishonest with his department
while acting in an official capacity, and from that, an inference could be drawn that
Jacoby himself might also be dishonest when acting in an official capacity. Furthermore,

1
the statement about having done favors in the past, in context, tends to show a greater
degree of corruption than just a personal motivation to avoid criminal prosecution by
invoking his status as a law enforcement officer. It tends to show he may have enforced
the law in the past based on who the offending individual may have been. These things
were not considered or factored into the trial court’s probative value analysis.
Nevertheless, I concur in the result in part III of the Discussion and the harmless
error analysis. Even if it was error to exclude Officer Jacoby’s corrupt conduct, that error
was harmless.

/S/
MURRAY, J.

2