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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CHARLES ARTHUR WILLIAMS, et al.  Defendants and Appellants.

2d Crim. No. B210231

Decided: January 27, 2010

Charles Arthur Williams, Wesly Christopher Williams and Allen Mason appeal their convictions, by jury, of the second degree robberies of Jeremy Davis and Jermaine McKenzie.  (Pen.Code, § 211.) 1  A fourth defendant, Anthony Phillips, was also convicted of the same offenses but is not a party to this appeal.   The jury was unable to reach a verdict on an identical charge relating to a third alleged victim, Brandon Williams.   It further found that Charles Williams personally used a handgun (§ 12022.53, subd. (b)), and Wesly Williams and Allen Mason were armed with a handgun in the commission of the robberies. (§ 12022, subd. (a)(1).)   The trial court sentenced Charles Williams to a total term of 15 years in state prison.   It sentenced Wesly Williams to a total term of four years and Allen Mason to a term of six years in state prison.   Wesly Williams and Allen Mason contend the trial court erred when it failed to instruct the jury on the lesser included offense of theft.   They further contend that the prosecutor committed Griffin error (Griffin v. California (1965) 380 U.S. 609 (Griffin)) in closing argument when she reminded the jury about claims it “didn't hear[,]” from defense counsel, including, “ ‘My client didn't do it[,]’ “ and “ ‘That's not my client on that videotape.’   “ Appellants contend the prosecutor also committed misconduct when she argued that the defense could have called witnesses whom she knew the defense had been unable to locate.   Charles Williams joins in these arguments and further contends the trial court erred because its instruction on reasonable doubt did not inform the jury that the prosecution is required to prove each element of each offense true beyond a reasonable doubt.   We affirm.   Facts Victims Jeremy Davis, Brandon Williams and Jermaine McKenzie took the Metro subway to Universal Studios City Walk on the evening of November 4, 2007.   As they walked around the mall, the trio noticed that appellants and another man were staring at them.   When they were ready to go home, Davis, Williams and McKenzie took the escalators down and walked through a parking structure toward the subway station.   Appellants followed them.   Griffin Error Griffin v. California (1965) 380 U.S. 609, holds that it is error for a prosecutor to comment, directly or indirectly, on the failure of the defendant to testify.  (People v. Hughes (2002) 27 Cal.4th 287, 371-372.)   As a result, the prosecutor may not “refer to the absence of evidence that only the defendant's testimony could provide.”  (Id. at p. 372.)   He or she may, however, comment “on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.”  (People v. Hovey (1988) 44 Cal.3d 543, 572.)   In determining whether Griffin error has occurred, we ask whether there is a reasonable likelihood that jurors could have understood the prosecutor's comments to refer to defendant's failure to testify.  (People v. Clair (1992) 2 Cal.4th 629, 663.)   Here, the prosecutor said in her closing argument, “Let's focus on what you didn't hear.   What you didn't hear is, ‘My client didn't do it.’   What you didn't hear is, ‘My client didn't have a gun.’   What you didn't hear is, ‘That's not my client on that videotape.’ ”   Appellants contend this was Griffin error because they are the only witnesses who could have testified to those statements.   We are not persuaded.   Our Supreme Court has frequently distinguished between appropriate comment on the absence of evidence and inappropriate references to a defendant's failure to testify.   Thus, in People v. Sanders (1995) 11 Cal.4th 475, the Court found no Griffin error where the prosecutor commented in closing argument that the defense had offered “no explanation” for “certain damning aspects” of the case, including the defendant's possession of a “20 gauge sawed-off shotgun.”   (Id. at pp. 527-528.)   Similarly, in People v. Medina (1995) 11 Cal.4th 694, the prosecutor argued that defense counsel had offered no “rational explanation” for evidence that witnesses saw the defendant with a handgun when the robberies at issue occurred.   The prosecutor noted that, “ ‘none of this evidence was explained.   Nobody on the defense side-excuse me, the defense attorney did not explain this evidence and how it pointed to some other rational conclusion because it doesn't and he can't.’  “ (Id. at p. 756.)   Our Supreme Court held this was not Griffin error because the prosecutor's comments “were directed to the general failure of the defense to provide an innocent explanation as to why defendant was armed [ ] at the time of the robberies.   These remarks contained no references, express or implied, to defendant's own silence, and therefore were unobjectionable.”  (Id. at p. 756.)   The same analysis applies to the closing argument at issue here.   The prosecutor directed the jury's attention to the absence of evidence, rather than to the defendants' decision not to testify.   Her argument referred to the general failure of the defense to offer an innocent explanation not for defendants' silence, but for the victims' identification testimony, the security camera images of them running from the parking structure, and their possession of items taken from the victims.   The argument did not constitute Griffin error.


Inside the parking structure, Davis and his friends stopped to smoke some marijuana.   Appellants approached the group.   While Phillips asked if he could “hit” their “blunt,” appellant Charles Williams pointed a gun at Davis and told him to “Come out your shit.”   Davis took off his jacket.   Phillips grabbed it and then argued with appellant Mason over who would keep it.   Phillips also went through Davis' pockets, taking his cell phone, wallet and keys.   Charles Williams pointed his gun at Brandon Williams who gave up about $300 in cash and a gold chain with a cross pendant.   Jermaine McKenzie resisted giving up his property.   Charles Williams told him, “I just got out of the pen.   I ain't playing with you.”   Jermaine took off his jacket and one of the appellants took it from him.   Appellants and Phillips left on the escalator.

As the victims stood in the parking structure, absorbing what had just happened, a guard from a private security company rode by on a bicycle.   The victims told him what had happened and the guard reported the robbery to a deputy sheriff.   Security cameras in the parking structure showed two Black men, matching the description given by the victims, running toward the subway station.   The deputy sheriff relayed this information to other deputies in the area.   They soon found appellants and Phillips and recovered two sweat jackets, a cell phone, a wallet and a .32 caliber semiautomatic pistol from a nearby trash can.   The cash reportedly taken from Brandon Williams was not recovered.   During the booking process, deputies found a gold chain and cross in appellant Mason's pocket.

The victims identified appellants and Phillips at an in-field “show up,” describing for the deputies the role each appellant played in the incident.   Davis and Brandon Williams each told the deputies that Charles Williams had the gun, Phillips physically took their property, and that Wesly Williams had been acting as a look out, riding a nearby escalator up and down during the incident.   Mason stood nearby or walked around the parking structure during the robbery.   He also argued with Phillips over Davis' jacket.   Brandon Williams testified that Mason wasn't doing much during the robbery.   Davis thought Mason was also acting as a look out.

The jury convicted Charles Williams as a principal in the second degree robberies of Jeremy Davis and Jermaine McKenzie.   Wesly Williams and Alan Mason were convicted as aiders and abettors in the robberies.   The jury was was unable to reach verdicts on the robbery of Brandon Williams.


Instructional Error

Instruction on Theft as a Lesser Included Offense of Robbery.

Appellants contend the trial court erred because it refused to instruct the jury on the lesser included offense of theft.   Robbery is distinguished from theft by the presence of “force or fear.”   Robbery requires that the perpetrator take the victim's property by force or fear;  theft has no “force or fear” requirement.  (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.)

A trial court must instruct on a necessarily included offense where there is substantial evidence from which a rational jury could conclude that the defendant committed the lesser crime, but not the greater.  (People v. DePriest (2007) 42 Cal.4th 1, 50.)  “It is settled that the crime of theft is a lesser included offense of robbery.”  (Id.) An aider and abettor may be found guilty of a lesser crime than that committed by the principal, “where the evidence suggests the ultimate crime was not a reasonably foreseeable consequence of the criminal act originally aided and abetted.”  (People v. Woods (1992) 8 Cal.App.4th 1570, 1577.)

Here, the trial court was not required to instruct on theft because there was no substantial evidence that the appellants committed theft rather than robbery.   Four young men surrounded three other men in a parking structure and demanded their personal property.   Those facts make it reasonably foreseeable that someone will use “force or fear” to get the property.   In fact, Charles Williams used a gun to enforce his demands.   His firearm use was not only reasonably foreseeable, it was actually foreseen by the other appellants.   Wesley Williams and Allen Mason were not surprised when the gun appeared, nor did they object to its use.   Both victims testified that Wesley Williams acted as a look out during the robbery.   Mason watched the robbery and took possession of Davis' jacket immediately after Davis handed it to Phillips.   The only inference supported by this evidence is that Wesley Williams and Mason knew Charles Williams was using a gun and nevertheless continued to assist him in taking the victims' property.   That is a robbery, not a theft.   The trial court did not err in refusing to instruct on the lesser offense.

Reasonable Doubt Instruction.

Charles Williams contends the trial court erred in its instruction to the jury on reasonable doubt because it did not inform the jury that it must find each and every element of the charged offense or special allegation true beyond a reasonable doubt.   There was no error.

Due process requires that the jury in a criminal case be instructed that the government has the burden to prove beyond a reasonable doubt each element of the charged offense.  (Middleton v. McNeil (2004) 541 U.S. 433, 437 [158 L.Ed.2d 701].)   So long as the trial court instructs the jury on the necessity of proof beyond a reasonable doubt, “the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof.  [Citation.]  Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’   Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954).”  (Victor v. Nebraska (1994) 511 U.S. 1, 5.)

Here, the trial court instructed the jury on the concept of reasonable doubt using the standard pattern instruction, CALJIC 2.90.   This instruction informed the jury:  “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.   This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.”  (CALJIC No. 2.90.)   A subsequent instruction informed the jury that, “a defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him.   No lack of testimony on defendant's part will make up for a failure of proof by the People so as to support a finding against him on any essential element.”   (CALJIC No. 2.61.)

Taken as a whole, these instructions adequately informed the jury that the requirement of proof beyond a reasonable doubt applies to each element of the charged crimes.   The definition of reasonable doubt contained in CALJIC 2.90 satisfies due process.  (Victor v. Nebraska, supra, 511 U.S. at p. 6.) CALJIC 2.61 reinforces that definition by specifically referring to the government's burden to “prove beyond a reasonable doubt every essential element of the charge against [the defendant].”   Nothing further was required.

Prosecutorial Misconduct

In his closing argument, trial counsel for Charles Williams noted that the prosecution had not called the private security guards as witnesses because the deputy sheriff did not include their names in his arrest report.   In her rebuttal, the prosecutor argued, “We're not require[d] to call [the security guards].   Defense counsel could have called [the security guards], whoever they wanted.   They chose not to.”   Counsel for Anthony Phillips objected;  the other defendants did not join in the objection.   The trial court admonished the jury that, “this is argument.   This is not evidence.”   Charles Williams and Wesly Williams now contend the prosecutor's statement was misconduct because she knew the defense had been unable to identify or subpoena the security guards.

Appellants have waived this contention because they did not join in Phillips' objection below.  (People v. Morales (2001) 25 Cal.4th 34, 43-44.)   Even if the argument had not been waived, however, we would reject it.   As our Supreme Court has emphasized, prosecutorial misconduct violates the Fourteenth Amendment to the United States Constitution where the prosecutor uses “ ‘deceptive or reprehensible methods' “ of “ ‘sufficient significance’ “ to render the trial “ ‘fundamentally unfair.’  “ (People v. Cole (2004) 33 Cal.4th 1158, 1202 [quoting United States v. Agurs (1976) 427 U.S. 97, 108;  People v. Strickland (1974) 11 Cal.3d 946, 955].)   It is misconduct for the prosecutor

to attempt to persuade the jury by referring in argument to facts not in evidence.  (People v. Hill (1998) 17 Cal.4th 800, 827-828.)  “When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’  “ (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203 [quoting People v. Berryman (1993) 6 Cal.4th 1048, 1072].)

The remarks at issue here were not inflammatory or deceptive.   The prosecutor stated that, had it wanted to, the defense could have called the security guards as witnesses.   Her statement was technically true:  the individual security guards could have been subpoenaed, if their names had been known.   But the jury was also aware that the guards' names were omitted from the arrest report and were therefore not readily available to either side.   As a result, it is unlikely that the jury would have understood the prosecutor to suggest that the defendants had intimated or otherwise prevented the security guards from testifying.   Nor could her argument reasonably be understood to imply that the security guards were absent because they possessed incriminating facts beyond those in evidence.   Accordingly, there is no reasonable likelihood that the jury construed the prosecutor's comments in a way that unfairly prejudiced the defense.

The judgments are affirmed.



We concur:



Elden S. Fox, Judge

Superior Court County of Los Angeles


Law Offices of John F. Schuck, John F. Schuck, under appointment by the Court of Appeal, for Charles Arthur Williams, Appellant.

Karyn H. Bucur, under appointment by the Court of Appeal, for Wesley C. Williams, Appellant.

Marcia R. Clark, under appointment by the Court of Appeal, for Allen Mason, Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.