P. v. Mitchell

Filed 10/11/18 P. v. Mitchell CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE PEPE MITCHELL,
Defendant and Appellant.
B281476
(Los Angeles County
Super. Ct. No. YA091753)
APPEAL from the judgment of the Superior Court of Los
Angeles County. LaRonda McCoy, Judge. Affirmed.
Linda L. Gordon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Idan Ivri and Michael J. Wise, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *

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Defendant and appellant Jose Pepe Mitchell was charged
with criminal conspiracy, three counts of second degree robbery
and three counts of attempted second degree robbery. The jury
acquitted him on one of the robbery counts but otherwise
convicted him as charged. Defendant appeals, arguing the trial
court erred in denying his motion for mistrial based on juror
misconduct. Defendant also contends that none of the six counts
on which he was convicted is supported by substantial evidence.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges and First Trial
Defendant was charged, along with two accomplices, in an
amended information with one count of criminal conspiracy
alleging two overt acts (Pen. Code, § 182, subd. (a)(1); count 1),
three counts of second degree robbery (§ 211; counts 2-4), and
three counts of attempted second degree robbery (§ 211, § 664;
counts 5-7). It was alleged defendant had suffered a prior serious
or violent felony within the meaning of section 667,
subdivisions (a)(1) and (b) through (j), and section 1170.12. It
was further alleged defendant had suffered four prior prison
terms (§ 667.5, subd. (b)).
The charges against defendant’s two accomplices were
severed on defense motion. Neither of defendant’s accomplices is
a party to this appeal.
The case proceeded to a jury trial in May 2016 and ended in
a mistrial after the jurors were unable to reach a verdict.
2. Retrial--Jury Selection
The second trial proceeded in November 2016. On
November 15, 2016, during the fourth day of voir dire, an issue
arose about the possibility that some prospective jurors had been

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exposed to outside information. During questioning, Prospective
Juror No. 13, volunteered that he had “read the board out front”
and “saw the defendant’s name and [a] couple things about him.”
After questioning by the court, it was determined the juror was
referring to the court’s calendar posted on the door, which he
read while the jurors were waiting to come into the courtroom.
He elaborated by saying the calendar identified the current trial
“and then another charge” that had not been explained in court.
The court asked the panel if anyone else had looked at the
calendar or formed any opinions about it. Prospective Juror
No. 16 raised her hand and said “I don’t have an opinion, but I
did read it. I saw it.” No other juror raised his or her hand or
otherwise responded to the court’s question.
The court spoke briefly with counsel at sidebar about the
fact the calendar noted defendant’s trailing probation violation
case. The court expressed concern about bringing too much
attention to something that could be a nonissue. The parties
agreed the court should ask some additional questions of
Prospective Juror No. 13 at sidebar and admonish the balance of
the jurors.
When Prospective Juror No. 13 was asked, at sidebar, what
specifically he recalled reading, he said the calendar mentioned
the present trial, but also noted that defendant had been charged
with a probation violation. The court asked whether he could
disregard that information and not let it influence him.
Prospective Juror No. 13 said he did not think that information
should have been out there at all, but he would try to disregard
it. The court reminded him that defendant was presumed
innocent of all charges, including any probation violation.
Prospective Juror No. 13 responded, “Oh, so he--so it wasn’t a

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done deal on that. [¶] . . . [¶] . . . I just assumed that since it
was up there that it was a—he’d already been you know
violated.” The court said it was simply a charging document and
defendant was presumed innocent. The court asked again if he
thought he could be fair. Prospective Juror No. 13 responded,
“Just the fact that it says probation on it has affected my
judgment I think.” The court asked if either side would like to
ask additional questions and both sides declined. Prospective
Juror No. 13 returned to his seat.
While still at sidebar, defense counsel asked for a mistrial,
arguing that Prospective Juror No. 13 made the initial statement
about outside information in open court, and it could have tainted
the other jurors. The court said the phrase “probation violation”
was not said in open court, only a reference to additional
information. The court denied defendant’s motion, finding
insufficient grounds to warrant a mistrial, but reiterated that it
would admonish the jurors, and speak with Prospective Juror
No. 16 who had raised her hand indicating she had also read the
calendar.
At sidebar, Prospective Juror No. 16 said she just looked at
the calendar briefly but did not recall anything specific about
what was printed on it. When asked if anything about it would
cause her to be unfair to defendant, she said no. She said it
would not influence her if she was chosen as a juror and that she
could be fair to both sides. As she was being excused to return to
her seat, she volunteered that other jurors were looking at the
calendar even though they did not raise their hands when the
court inquired about it.

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Defense counsel renewed his motion for a mistrial, stating
it appeared the possible taint was “a wide spread situation.” The
court agreed to speak with each prospective juror individually.
Prospective Juror Nos. 1 through 4 all stated at sidebar
they had not read the calendar and had not been influenced by
any of the comments made in open court by their fellow jurors.
They all indicated they could be fair to both sides and follow the
court’s instructions.
Prospective Juror No. 5 said she had not read the calendar,
but the discussion raised by the other jurors in court had made
her curious. She asked “is there another case out?” The court
admonished Prospective Juror No. 5 that she was not to
speculate about such issues, and that she was to listen only to the
evidence presented in court if she was seated as a juror. The
court asked if she could do that. She said she would try, that she
wanted to be fair, but it made her feel a little “weird.”
After Prospective Juror No. 5 returned to her seat, the
court, still at sidebar with counsel, expressed concern that calling
up each juror individually was “drawing more attention to the
issue at hand than need be.” The court therefore decided it was
better to give “a general admonition, and inquire of the jurors
whether or not they can follow the court’s order, and not consider
anything outside of any evidence that will be presented during
the trial in this matter.” The court indicated it would allow
counsel “an opportunity to voir dire on whatever issues they feel
is [sic] relevant to the issue of potential jurors being unfair or
biased.”
When the proceedings resumed, the court told the panel it
was going to proceed with a general admonition in lieu of

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continuing with the individual sidebar discussions. The court
then admonished the prospective jurors as follows.
“I’m going to ask, one, that you not speak to each other
about anything you may have heard, saw, read, or the calendar or
otherwise. Not speculate as to any evidence that may be
presented in this case. If you’re selected as jurors, the evidence
that you will consider for deliberations will be evidence that
come[s] from either this seat, meaning a witness is testifying,
which is called evidence, or will be presented to you as evidence,
or either side will present certain documentation, and you will be
given instructions as to whether or not it is to be received for
evidence. [¶] Anything other than that, I am ordering you not to
consider, not to speculate, not to form any opinions. Remember,
Mr. Mitchell is presumed to be innocent. There is no evidence
that has been presented.”
The court asked for a show of hands if anyone could not
follow those instructions. Prospective Juror No. 5 raised her
hand, and the court asked if that was based on the previous
conversation at sidebar, and Prospective Juror No. 5 said yes.
Prospective Juror No. 7 said, “I didn’t see it, or anything
like that, but I overheard some things.” The court asked if it was
anything that would cause him/her to be unfair to defendant and
Prospective Juror No. 7 said no.
The court re-read the charges, reiterating that they were
just charges, that defendant was presumed innocent and that the
prosecutor had the burden of proving each of those charges. “You
are not to consider anything else presented unless it is presented
for evidence. Any discussions, outside discussions that you have
had, that is not to be considered in your deliberation, or your
interpretation of the evidence as presented.” The court then

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asked the panel, “Do you all agree to follow the court’s order?
Will you all be able to follow the court’s order, and continue to
give Mr. Mitchell a fair trial?”
The prospective jurors collectively responded, “Yes. Yes.”
The court asked if there was anyone who believed they
could not follow those instructions, then noted for the record,
“[n]o hands being shown except for Juror No. 5.” The court
allowed counsel to ask additional questions of the panel on the
subject.
Prospective Juror No. 7 said she heard other jurors
discussing the calendar, and it might affect her deliberations.
The court allowed a brief sidebar with Prospective Juror No. 7
who said she heard another juror say that whatever was on the
calendar probably meant that defendant was “probably guilty.”
Prospective Juror No. 7 was not involved in the conversation but
overheard it. She believed there may have been three or four
prospective jurors within “earshot” of the comment. The court
emphasized no evidence of a probation violation had been
presented, it was not an issue for the jury to consider, and any
speculation about there being such a violation must not be
considered. Prospective Juror No. 7 said she could be fair and
would abide by the court’s instructions.
Prospective Juror No. 9 said it possibly could affect her
deliberations. At sidebar, Prospective Juror No. 9 said she had
not read the calendar but hearing what Prospective Juror Nos. 13
and 16 said made her wonder about the possibility of another
case. She asked if there was another case pending and the court
said, “[n]o. This is the only case that you’re to consider.” When
asked whether she could keep an open mind and listen to the
evidence fairly, Prospective Juror No. 9 said yes.

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Prospective Juror No. 13 said it possibly could affect his
deliberations. Neither party asked him any follow-up questions.
Prospective Juror No. 16 reiterated that she would adhere
to the court’s instructions and the speculation and comments
about the calendar would not affect her.
Prospective Juror No. 19 said he believed he could follow
the court’s instructions, but he would “still want to know what
was going on.” The court interjected that jurors are not to
speculate about outside issues, but are only to consider the
evidence presented, along with the court’s instructions. The
court asked if he could follow that instruction. Prospective Juror
No. 19 said he was not sure because there was “no delete function
in the human memory.” The court explained there is no delete
function for our “common life experiences” either, but as jurors
everyone has to put that information aside and focus on the
evidence presented and evaluate the case before them. “I’m not
asking you to erase your memory. I’m asking you only if you’re
able to consider as evidence only what you hear, and see in court,
and that which is presented as evidence.” Prospective Juror
No. 19 responded, “[i]f I understand you correctly, I can agree to
that.” He then said, “I would set that aside, listen to the evidence
fairly.”
One of the prospective jurors still seated in the audience
(No. 3854) said that “everyone’s just speculating” about what was
on the calendar, but he did not hear anyone speculating about
defendant’s guilt or innocence. He said he could follow the court’s
instructions and be fair.
All of the remaining prospective jurors, including those in
the audience who had not yet answered the basic background
questions, responded that they had not read the calendar, had

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not heard any discussions about it, had not formed any opinions
and would follow the court’s instructions.
After both sides had completed their questioning, defense
counsel again moved for a mistrial. The court denied the
renewed motion for mistrial, explaining that except for
Prospective Juror No. 5, all of the prospective jurors affirmatively
stated they could put aside any outside influences. “I think the
jurors were forthright in what they either overheard, saw, or
even speculate to [sic] and each gave the court assurance[,] that
is they would not allow that to influence their judgment.” On its
own motion, the court excused Prospective Juror No. 5 for cause
because of her statements that the information had impacted her
ability to be fair.
The next day, jury selection resumed. Neither defense
counsel nor the prosecutor moved to excuse any prospective
jurors for cause. Since Juror No. 5 had been excused, the court
instructed Juror No. 13 to take her seat. Defense counsel
exercised only three of his remaining peremptory challenges,
excusing Prospective Juror Nos. 1, 5 (formerly Juror No. 13) and
6. Both the prosecutor and defense counsel accepted the panel as
then constituted. Prospective Juror No. 19 was excused, and
Prospective Juror Nos. 17, 18 and 20 were sworn as alternates.
3. Retrial--Evidence
The evidence and testimony received at the second trial
revealed the following material facts.
a. The initial robberies in Torrance
On the afternoon of June 27, 2014, Jeannie Kim went to a
branch of BBCN Bank located on Sepulveda Boulevard in
Torrance. After completing her business, she went out to her car
and placed her purse behind the driver’s seat. Ms. Kim then

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drove to her home in Torrance and pulled into her garage. When
Ms. Kim got out of the car, a young African-American male whom
she did not know was standing inside her garage very close to her
car. He demanded her purse. Ms. Kim refused. The man
demanded her purse again and, this time, pointed a gun at her
and pushed her. She stepped backward and fell. Ms. Kim saw
the man reach behind her front driver’s seat, grab her purse and
run to a white car in the street. The man got into the front
passenger seat. Ms. Kim did not get a look at the driver. She got
back into her car and attempted to pursue the white car as it fled,
but she was unable to keep up with it. Ms. Kim testified she was
not sure if defendant was the man who took her purse.
A couple of weeks later, on July 11, 2014, Su Jin Lim left
the BBCN Bank in Gardena, drove to her home in Torrance, and
parked her white Toyota Camry in her driveway. Ms. Lim got
out of the car carrying a small, pink backpack that contained
several items, including her cell phone and bank cards, and went
to get something out of her trunk. While she was standing at her
open trunk, an African-American male, in his 20’s or 30’s, came
up to her and told her not to make any noise. Ms. Lim screamed,
and the man hit her in the side of her head with a hard object
that felt metallic. She screamed again for help and tried to hold
on to her backpack, but the man wrested it away from her. He
then jumped into a brown-colored car that was waiting at the end
of her driveway and fled. Ms. Lim was bleeding from the wound
to her head and required medical attention. Ms. Lim was unable
to identify defendant in court.
James Chen lived on the same street as Ms. Lim. He and
his wife had just pulled out of their driveway on their way to
dinner when Mrs. Chen said she heard a scream. Mr. Chen

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looked in the direction his wife pointed and saw Ms. Lim at the
end of her driveway, struggling with a dark-skinned man,
wearing a baseball cap. The man jumped into an older model,
brown-colored Honda. The Honda drove off in the opposite
direction, so Mr. Chen made a U-turn and tried to chase it. The
Honda ran through several stop signs, so Mr. Chen was unable to
catch up or get a license plate number.
Detective Jeff Livingston of the Torrance Police
Department investigated the similar “follow home” robberies
involving Jeannie Kim and Ms. Lim. Detective Livingston
learned that the Chen’s home had security cameras. He obtained
the video footage from those cameras which showed Ms. Lim’s
white Camry driving down the street just before the time of the
robbery, followed by a brown-colored Honda and a red car with
black rims. Shortly thereafter, the footage showed the red car
and brown Honda driving back down the street in the opposite
direction. Detective Livingston showed the footage to Detective
Dariusz Wawryk, who agreed that it appeared the two cars may
have been involved in the robbery.
Detective Livingston contacted Detective Michael Ross of
the Gardena Police Department and inquired about the video
footage from Gardena’s traffic cameras located in the vicinity of
the BBCN Bank for the afternoon of July 11, 2014. Detective
Livingston asked Detective Ross to look for images of a white
Camry, a brown Honda, and a red car with a black top and black
rims. Detective Ross found footage showing a white Camry
travelling south on Normandie Avenue not far from the BBCN
Bank, with a brown car (or one with rusted or oxidized paint) and
a red car with a black top following in fairly close proximity.
Both Detective Livingston and Detective Wawryk believed the

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cars looked similar to those captured by the Chen’s home security
cameras.
In August, Ms. Lim emailed Detective Livingston the
monthly statement for her cell phone. The statement showed
that on July 11, a few hours after she was robbed, her phone was
used to make a call to a phone number she did not recognize
(ending -8143). After obtaining a search warrant, Detective
Livingston determined that phone number belonged to an
individual named Darian Baber.
Detective Livingston and Detective Wawryk also obtained
access to Baber’s Facebook account. On June 27, 2014, the date
Jeannie Kim was robbed, Baber posted a selfie on his Facebook
page. In the photograph, Baber is sitting in a car holding
numerous $100 bills, and a Hispanic male is visible in the back
seat. Baber’s appearance in the photograph fit the general
description of the suspect given by Ms. Kim, and the money
stolen from her that day had been the same denomination
($100 bills).
In response to these leads, the Torrance Police Department
initiated surveillance of Baber. While the detectives were
watching Baber’s house in Inglewood, they saw a red car (similar
to the one captured on the Chen’s security footage and the
Gardena traffic cameras) arrive and park outside. The car was a
red Infiniti sedan with a black top and black rims. After
checking the license plate number, they determined defendant
was the registered owner of the car. The police later saw
defendant and Baber talking to each other on multiple occasions,
and defendant was identified as a “friend” on Baber’s Facebook
page.

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b. The Culver City incidents
On the afternoon of November 25, 2014, Lydia Kim left the
Hamni Bank at 3737 West Olympic Boulevard and went to meet
a client at a business called Master’s Golf. She parked her car in
the lot and headed toward the entrance of the building. When
she got near the door, the manager of Master’s Golf came out to
meet her and asked why she had come with an African-American
male. She was scared as she did not realize someone was
walking near her, so she quickly went inside the building. The
African-American man turned and walked away. Ms. Kim was
unable to identify defendant in court because she had never seen
the man’s face. During her testimony, Ms. Kim looked at video
footage from a nearby security camera that captured the
encounter. She identified herself as the person being followed by
an African-American male wearing a construction vest, who then
left in a black car after she entered Master’s Golf.
Later that same day, Young Ok Hwang also conducted
business at the same branch of Hamni Bank. She withdrew
$7,000, placed the money in her purse, and then drove to her
home on Whitburn Avenue in Culver City. By the time she
arrived home, and parked in her driveway, it was dark outside.
Ms. Hwang grabbed her purse, removed a piece of luggage from
her trunk, and then walked to the end of her driveway to get her
mail. Before she got to her mailbox, an African-American male
suddenly appeared and ran toward her. He was wearing a
construction worker’s vest. He grabbed her purse, and
Ms. Hwang struggled with him. She was too shocked and scared
to scream. The man wrested the purse from her and ran to the
street. Ms. Hwang then cried out for help. The man jumped into
the passenger side of a black car and the car sped off.

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Detective Ryan Thompson of the Culver City Police
Department investigated the incidents involving Lydia Kim and
Ms. Hwang. Detective Thompson obtained the video surveillance
footage from the business located next to Master’s Golf. The
video showed the arrival of Ms. Kim, an African-American man
following her, and a red car making a U-turn and pulling up near
the driveway, followed by a black car that parked in the lot.
Detective Thompson also spoke with Anthony Canchari, a
witness to the robbery of Ms. Hwang. Mr. Canchari said he was
standing at a nearby corner when he saw an African-American
male get out of a maroon-colored car and head in the direction of
Whitburn Avenue. Mr. Canchari then heard a woman scream.
The African-American male ran back to the maroon car and got
in. The driver of the car turned off the headlights and fled the
area. A black car followed. When Detective Thompson showed
Mr. Canchari some photographs, he identified defendant’s red
Infiniti and signed his name on the photograph, noting “This car
looks familiar.”
At trial, Ms. Hwang identified the construction vest
recovered from defendant as the “same vest” she had seen on the
man who robbed her. Ms. Hwang identified defendant in court as
the person who took her purse. She admitted she had testified in
the first trial that she was not sure if defendant was the one who
robbed her. Ms. Hwang explained she had done so because she
was scared defendant would seek revenge against her.
Ms. Hwang said she wanted to just tell the truth even though she
was still a little afraid to do so. When asked on redirect,
Ms. Hwang reiterated she had previously equivocated about
defendant’s identification out of fear. The prosecutor asked again
if she believed defendant was the person who stole her purse, and

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she said “yes, I think so.” The prosecutor asked, “are you sure?”
Ms. Hwang responded, “yes.”
c. The surveillance operation
The Torrance Police Department began a surveillance
operation, supervised by Detective Eric Williams, that involved
several plain clothes detectives, including Detective Wawryk and
Detectives Brent Clissold and Scott Nakayama. The undercover
detectives, working in teams, drove unmarked cars and
documented the activities of defendant (as well as Baber and
Villanueva) on multiple days over a period of months.
According to Detective Clissold, the activities of defendant,
Baber and Villanueva followed a regular pattern. Defendant was
usually observed driving his red Infiniti, while Baber would be in
a separate car with a third person (usually Villanueva). The two
cars would follow each other to one of the branches of Hamni
Bank or BBCN Bank (“like they’re trailing each other”), park and
then wait in an area where the bank’s front doors and parking lot
were visible. After a customer would leave the bank, the two
cars, driving “in tandem,” would follow the customer to their
home or place of business. They always drove this way,
travelling in proximity to each other, making the same turns and
leaving locations at the same time. All of the known victims and
potential victims were Asian females.
On the afternoon of December 8, 2014, defendant was
observed by Detective Williams parking his car near the Hamni
Bank at 3737 West Olympic Boulevard. Defendant got out of the
car and put on a “caution” or construction vest. Detective
Nakayama was also surveilling defendant and saw him walking
near the bank talking on his cell phone. At some point, a female
customer left the bank in a white Lexus sports utility vehicle, and

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defendant, in his car, immediately “shadow[ed]” her, along with
Baber and a third person (possibly Villanueva) in a black Infiniti.
Jieun Kim was the driver of the Lexus. The two cars followed
Ms. Kim’s Lexus “in tandem” until it pulled into her garage
which was protected by two separate security gates. Both
defendant and the black Infiniti pulled over and parked at the
curb. After a few moments, they both drove off.
On December 17, 2014, Soon J. Le left the Hamni Bank on
3099 West Olympic Boulevard and headed back to work in her
Honda Pilot. She pulled into the covered parking structure and
found a parking spot. She noticed a car behind her with two
occupants. The driver appeared to be a Hispanic male. She
gestured for them to move so she could back her car up a bit and
straighten it in the parking space. Ms. Le then got out of her car,
gave her key to the parking attendant and went inside.1
This encounter was observed by detectives Clissold,
Williams, Nakayama and Wawryk who were working
surveillance that day. Detective Clissold saw defendant in his
red Infiniti at a gas station on Olympic Boulevard. Baber and
Villanueva arrived in a white Honda shortly thereafter. The
three men spoke together briefly. Baber and Villanueva got back
into the Honda and left the gas station. Defendant followed. The
detectives trailed the two cars to where they both parked across
the street from the Hamni Bank on 3099 West Olympic
Boulevard. Detective Williams noted the subjects had parked in
1 Ms. Le was unavailable to testify at the second trial, so her
testimony from the first trial was read into the record. Ms. Le
had been unable to identify defendant in court at the first trial.

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areas with a “good visual” of the front of the bank and the
parking lot.
After sitting outside the bank in their respective cars for
awhile, defendant, Baber and Villanueva drove off, following a
female customer in a blue Honda Pilot, who the detectives later
learned was Ms. Le. Detective Williams saw Villanueva and
Baber in the white Honda follow Ms. Le into a covered parking
structure. Defendant, in his red Infiniti, parked at the curb a
short distance from the driveway. Detective Williams double-
parked several car lengths behind defendant. Defendant’s driver
side window was rolled down and Detective Williams could see
defendant, somewhat slouched down, looking at him in his
driver’s side mirror. After a few minutes the white Honda came
out of the parking structure and drove off, as did defendant.
Meanwhile, the detectives had determined that the white
Honda, driven by Villanueva, had been reported stolen. A patrol
car, not involved in the surveillance operation, drove past in the
opposite direction and made a U-turn, apparently noting the
stolen vehicle. Both defendant and the white Honda immediately
made an evasive move, turning onto a side street. Baber and
Villanueva abandoned the white Honda. The detectives called off
the patrol car so as to not interfere with their surveillance
operation. The detectives saw Baber and Villanueva being picked
up by defendant in the red Infiniti.
That same day, the detectives also observed defendant,
Baber and Villanueva make several other unsuccessful attempts
to rob female victims, and several vehicle burglaries.
Detective Williams later interviewed Ms. Le who reported
the two men who had pulled in behind made her nervous because
they were staring at her and her car, and it was unusual to see

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anyone who was not Asian in the parking structure since
everyone with whom she worked was Asian. Therefore, she said
that when she got out of her car she immediately went over to the
parking attendant and went inside.
d. Defendant’s pretrial statement
Defendant was arrested on December 19, 2014.
Defendant’s cell phone was taken into evidence, as was a
construction or safety vest located in the trunk of his car. While
in custody, defendant waived his right to remain silent, did not
ask to speak to an attorney and gave a statement to Detective
Wawryk. The statement was recorded and a redacted portion
was played for the jury.
Defendant identified his cell phone and confirmed his
phone number ending -2215. Defendant also confirmed he owned
the red Infiniti with the black top and black rims.
Detective Wawryk asked defendant why he would be
participating in these robberies when he had a job, particularly
with a gun involved where someone would eventually get hurt.
Defendant responded, “There’s no gun (inaudible) I’m not bullshit
[sic] you. Nobody has a gun.” In response to being asked why
there would be long periods in between some of the robberies,
defendant said, “Didn’t want to do it.” Defendant asked several
times if there was anything he could do to help himself, including
asking if he could provide information. “No snitching in the world
to get me out of this, huh, not even no wire informant?”
Detective Wawryk explained that he had to present the
case to the district attorney, that he was not the person who
could make any type of deal, but that he could tell the district
attorney that defendant was remorseful or otherwise. He said,

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“you tell me . . . how did you feel?” Defendant said, “I was raised
better than this.”
Detective Wawryk told defendant he was on videotape.
“[Y]ou were there. I got you—I got you on surveillance,
neighbor’s house, and I got you on surveillance . . . . Leaving the
BBCN in Gardena, going down Normandie, you—you got to
realize there’s frickin [sic] surveillance video all over the streets;
you know what I mean? So am I—am I bullshitting you?”
Defendant responded, “not really.”
Detective Wawryk again told defendant they had a lot of
security camera footage and other evidence implicating him and
his “crew,” enough to charge him on three completed robberies
and four attempted robberies. Defendant responded, “Just give
me a charge for attempted. Are . . . you charging me?”
Defendant continued to deny personally taking anything
from anyone. “I never robbed.” Detective Wawryk said, “but you
were--you were part of the crew.” Defendant interjected, “I’m
saying I never robbed nobody.” Detective Wawyrk explained,
“You were part of the crew. You guys were working in concert
together. You were identifying victims for them. You were
following people from the bank. You were setting up on one side
of the street; they set up on the other and yeah, they pop out of
the car. They complete the robbery but you were part of the
crew; you know what I mean? You can’t deny that.”
Defendant, responded: “Yeah, but you’re—but I’m being
charged with actual robbery.” Detective Wawryk said, “well, the
crew, the whole crew is charged with the robbery.” To which
defendant asked, “Is that how they (inaudible).” Detective
Wawryk said, “Yeah, that’s how it is, yeah.”

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Later on, near the end of the interview, defendant asked,
“If I give you the rest of the information that you need, . . . what
type of deal do I have to work out for me?” Defendant eventually
said he did not think it was going to help his situation, but he
could tell them where “some stuff” was in storage. He then asked
if they took anything from his mother’s house. It was near
Christmas time and he asked, “[y]ou didn’t take the presents,
though, because some of that stuff I didn’t steal, actually, but.”
e. Cell phone records
Detective Thompson testified as an expert in cell phone
technology and cell phone record analysis. In looking at the
records for defendant’s cell phone and Baber’s cell phone, he
determined that on the dates of four of the incidents, there was
regular communication between their two phones. There were
14 calls between them on June 27, the date of the robbery of
Ms. Kim in Torrance. There were 22 calls on July 11, the date of
the robbery of Ms. Lim in Torrance. And, on November 25, the
date of the attempt on Ms. Kim at Master’s Golf and the robbery
of Ms. Hwang in Culver City, there were also 22 calls between
them.
Detective Thompson further testified that the GPS tracking
for the two cell phones showed the phones were used to make
calls in the vicinity of the banks or the victims’ homes during
several of the incidents. He explained that when a cell phone is
used to make a call, it will “ping” or be documented as within the
coverage area of a particular cellular phone tower.
In analyzing the records for defendant’s cell phone,
Detective Thompson opined that defendant’s cell “phone [was]
pinging in the area of these banks where these victims [were]
leaving from and [were] generally speaking, heading towards the

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areas where these victims lived. [¶] Right after they’re robbed,
the phone appears to move away from where the victims live[d]
towards where [defendant] reside[d].”
f. Defense evidence
Defendant did not testify and did not call any witnesses.
4. The Verdict and Sentencing
The jury convicted defendant on all counts, except count 2.
Defendant waived his right to a jury on the trial of the
prior allegations. The court found true the allegation that
defendant had suffered a prior qualifying strike and denied
defendant’s motion to strike the prior conviction. The court
granted defendant’s oral motion pursuant to Proposition 47 with
respect to his one-year prison priors.
The court sentenced defendant to a term of 21 years in
state prison. In defendant’s trailing probation violation case
(No. TA124565), defendant was found to have violated probation.
The court lifted the suspension of the previously imposed term of
11 years four months, and ordered that sentence to run
concurrent to the sentence imposed in this case.
This appeal followed.
DISCUSSION
1. The Motion for Mistrial
Defendant contends his rights to a fair trial and an
impartial jury were violated by the trial court’s denial of his
motion for mistrial based on juror taint. He argues it was error
for the trial court to deny his request for a mistrial because
during voir dire, several prospective jurors, who were ultimately
seated on the jury, admitted to improper bias against defendant
but were not excused. We disagree.

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After defendant’s oral requests for a mistrial were denied,
voir dire continued and defendant did not move to excuse any
juror for cause, including any juror he now contends expressed
bias against him in answering the court’s questions about the
information on the calendar. Defendant also did not exhaust his
remaining peremptory challenges. After exercising only three of
his remaining peremptory challenges, defendant accepted the
panel as constituted and did not restate any objection based on
the alleged taint from the jurors’ possible exposure to outside
information from the posted calendar. “ ‘[W]e adhere to the well-
established rule that to preserve a claim a biased juror was
improperly permitted to serve, the defense must exhaust its
peremptory challenges and object to the jury as sworn.’ ” (People
v. Souza (2012) 54 Cal.4th 90, 130.) Defendant has not preserved
for appellate review any contention that biased jurors were
allowed to serve on the jury.
In any event, the record does not establish any abuse of
discretion by the trial court in denying defendant’s oral motions
for mistrial. “ ‘ “ ‘A mistrial should be granted if the court is
apprised of prejudice that it judges incurable by admonition or
instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and
the trial court is vested with considerable discretion in ruling on
mistrial motions. . . .’ [Citation.] A motion for a mistrial should
be granted when ‘ “ ‘a [defendant’s] chances of receiving a fair
trial have been irreparably damaged.’ ” ’ ” [Citation.]’ ” (People v.
Harris (2013) 57 Cal.4th 804, 848, italics added.)
The court excused for cause the only juror who admitted to
being unable to judge defendant fairly, Prospective Juror No. 5.
The court inquired of the jurors collectively and individually

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about whether they had seen or heard anything related to the
court’s calendar, and also allowed counsel to ask additional
questions on the subject. A majority of the prospective jurors
said they had not noticed the calendar, and gave no indication
their impartiality had been impaired.
Prospective Juror Nos. 7, 9 and 16 said they had overheard
some speculation about the possibility of another charge or case.
However, after questioning and admonitions from the court, all
three prospective jurors confirmed they could listen to the court’s
instructions and give defendant a fair trial. Prospective Juror
Nos. 13 and 19 were the only other two jurors who said the
information from the calendar might affect their judgment. Both
were excused.
Moreover, the court thoroughly admonished the jury about
the presumption of innocence, what constitutes evidence and
their duty to disregard outside information. Defendant has not
demonstrated any likelihood that a juror or jurors were actually
biased against him. Indeed, the jury acquitted defendant of the
robbery on count 2, indicating the jury engaged in measured and
thoughtful deliberations.
2. Substantial Evidence
Defendant next contends that none of his convictions is
supported by substantial evidence. “In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review
the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Rodriguez (1999) 20
Cal.4th 1, 11.) “The appellate court presumes in support of the

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judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th
978, 1053.) “The standard of review is the same in cases in which
the prosecution relies mainly on circumstantial evidence.”
(Rodriguez, at p. 11.) Applying this standard, defendant’s
argument fails to persuade us reversal is warranted on any of his
six convictions.
a. Conspiracy (count 1)
Defendant argues there was no evidence of his agreement
to commit a robbery or any crime, nor evidence of any overt act in
furtherance of a conspiracy to commit robbery.
As defendant concedes, an agreement to commit a crime
may be proved by circumstantial evidence. The existence of a
conspiracy “may be proved by circumstantial evidence without
the necessity of showing that the conspirators met and actually
agreed to commit the offense which was the object of the
conspiracy.” (People v. Zamora (1976) 18 Cal.3d 538, 559, italics
added; accord, People v. Dewitt (1983) 142 Cal.App.3d 146, 151
[presence of two felons, each in possession of stolen handguns and
disguises, sitting in a stolen car outside the entrance of an
expensive home in a remote area was sufficient evidence of a
conspiracy to commit a robbery]; see also 1 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Elements, § 80, p. 375.)
Here, there was abundant circumstantial evidence of an
agreement to commit robbery. Several different undercover
detectives testified about observing defendant, on multiple days,
acting in tandem with his two coconspirators, waiting outside of
banks for female customers to leave, alone, and then trailing
them home or to their place of business to be robbed. Their

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coordinated conduct reasonably implied a common purpose, a
tacit agreement.
The testimony from the undercover detectives about the
surveillance operation was bolstered and corroborated by the
videotaped surveillance footage, the security camera footage, the
cell phone records and Detective Thompson’s testimony regarding
the tracking of defendant’s and Baber’s cell phones on the dates
of the offenses and their regular communication during those
time periods. Defendant’s pretrial statement to Detective
Wawryk also contained admissions supporting his participation
in the conspiracy. This evidence provided a sufficient basis upon
which the jury could reasonably infer the existence of an
agreement to commit robbery. Defendant cites no authority for
the proposition that a record of the actual conversations between
the conspirators was necessary, and we know of no such
authority.
There was also ample evidence of overt acts taken in
furtherance of the conspiracy. “ ‘ “[A]n overt act is an outward
act done in pursuance of the crime and in manifestation of an
intent or design, looking toward the accomplishment of the
crime.” [Citations.]’ [Citation.] One purpose of the overt act
requirement ‘is “to show that an indictable conspiracy exists”
because “evil thoughts alone cannot constitute a criminal
offense.” [Citations.]’ [Citation.] The overt act requirement also
‘provide[s] a locus penitentiae—an opportunity for the
conspirators to reconsider, terminate the agreement, and thereby
avoid punishment for the conspiracy.’ [Citations.] Once one of
the conspirators has performed an overt act in furtherance of the
agreement, ‘the association becomes an active force, it is the
agreement, not the overt act, which is punishable. Hence the

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overt act need not amount to a criminal attempt and it need not
be criminal in itself.’ ” (People v. Johnson (2013) 57 Cal.4th 250,
259; see also 1 Witkin & Epstein, Cal. Crim. Law, supra
Elements, § 96, p. 400 [commission of overt act done in pursuance
of the conspiracy is a manifestation of the existence of the
unlawful agreement, even if the overt act is itself lawful].)
Defendant argues the evidence showed only defendant and
another car driving “in unison” without more. When viewed in its
totality, the evidence showed a clear pattern of activity by
defendant and his two coconspirators, engaged in over a period of
months within the same geographic area, targeting Asian female
bank customers who were by themselves. Defendant’s conduct in
driving to a particular bank location, waiting outside with his
coconspirators nearby in another vehicle, and then following, for
several miles, a female customer home or to her place of business
was more than sufficient to constitute an overt act taken in
furtherance of the conspiracy. Any suggestion to the contrary is
without merit.
b. Second Degree Robbery (counts 3 & 4)
Defendant argues there is no substantial, credible evidence
he participated, either as a principal or aider and abettor, in the
robbery of Ms. Lim on July 11 (count 3) or the robbery of
Ms. Hwang on November 25 (count 4).
There was ample evidence supporting defendant’s guilt as
an aider and abettor of the robbery of Ms. Lim. “[P]roof of aider
and abettor liability requires proof in three distinct areas: (a) the
direct perpetrator’s actus reus—a crime committed by the direct
perpetrator, (b) the aider and abettor’s mens rea—knowledge of
the direct perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends, and (c) the aider and abettor’s

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actus reus—conduct by the aider and abettor that in fact assists
the achievement of the crime.” (People v. Perez (2005) 35 Cal.4th
1219, 1225.) “ ‘Whether defendant aided and abetted the crime is
a question of fact, and on appeal all conflicts in the evidence and
reasonable inferences must be resolved in favor of the
judgment.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 409
(Campbell).)
It is well established that presence at the scene,
companionship, and conduct before and after the offense are
relevant factors in resolving the question of aiding and abetting
liability. (Campbell, supra, 25 Cal.App.4th at p. 409 [presence
near one who robs victims in order to intimidate, divert suspicion
or watch out for others “is a textbook example of aiding and
abetting”].)
There was strong evidence demonstrating defendant’s
presence at the scene and acting in concert with his
coconspirators. Defendant admitted to his ownership of the red
Infiniti with the black top and black rims. A car that looked
nearly identical to defendant’s car was captured by the traffic
camera footage following Ms. Lim’s car near the vicinity of the
bank. A similar car was also captured by the security footage
from the Chen’s home near Ms. Lim’s home at the time of the
robbery. This evidence was bolstered by the cell phone records
and testimony of Detective Thompson as to the usage of
defendant’s cell phone at the relevant times, both in the vicinity
of the robbery and communicating with Baber.
Defendant argues that none of the security or surveillance
footage showed the license plate number of the red car or the face
of the driver of the car. The lack of these additional details does
not lessen the strength and impact of the above evidence or the

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totality of evidence presented about the pattern of behavior
engaged in by the three coconspirators with respect to all of their
victims. Viewed collectively, along with the admissions made by
defendant in his pretrial statement, the evidence was more than
sufficient to support the jury’s verdict.
As for count 4, the evidence presented as to the manner of
how Ms. Hwang was robbed fit the pattern of behavior followed
by defendant and his coconspirators with respect to all of the
victims. Moreover, Ms. Hwang testified that defendant was the
individual who robbed her.
Defendant argues that some of her testimony was
inconsistent with the report by Mr. Canchari that the robber fled
in a maroon car. (Ms. Hwang said her attacker fled in a black
car). Defendant also argues Ms. Hwang’s testimony was
inherently untrustworthy because she changed her testimony
from the first trial at which she was unable to identify defendant
in court.
However, Ms. Hwang explained that she did not identify
defendant in the first trial out of fear of retaliation. And, other
than the color of the car, the testimony of Ms. Hwang was
consistent with Mr. Canchari. It was for the jury to decide the
weight and credibility of her testimony. “ ‘ “To warrant the
rejection of the statements given by a witness who has been
believed by the [trier of fact], there must exist either a physical
impossibility that they are true, or their falsity must be apparent
without resorting to inferences or deductions. [Citations.]
Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon

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which a determination depends. [Citation.]” . . . .’ ” (People v.
Barnes (1986) 42 Cal.3d 284, 306.) Nothing here indicates any
basis for disregarding the jury’s decision to believe Ms. Hwang’s
testimony.
c. Attempted second degree robbery
(counts 5, 6 & 7)
Defendant argues the record lacks substantial evidence
supporting his convictions for the attempted second degree
robberies of Lydia Kim on November 25 (count 5), Ms. Le on
December 17 (count 6), and Jieun Kim on December 8 (count 7).
Defendant argues the evidence does not even show that any
attempted robberies were committed.
The law of attempt is well settled. “An attempt to commit a
crime consists of two elements, viz., the intent to commit it, and a
direct, ineffectual act done toward its commission. . . . There is,
of course, a difference between the preparation antecedent to the
commission of an offense and the actual attempt to commit it.
The preparation consists in devising or arranging the means or
measures necessary for the commission of the offense. The
attempt is the direct movement toward the commission after
preparations are made and must be manifested by acts which
would end in the consummation of the particular offense unless
frustrated by extraneous circumstances. . . . Whenever the design
of a person to commit crime is clearly shown, slight acts in
furtherance of the design will constitute an attempt.” (People v.
Anderson (1934) 1 Cal.2d 687, 689-690 (Anderson), italics added
& citations omitted; accord, People v. Superior Court (Decker)
(2007) 41 Cal.4th 1, 8-9.)
As we have already explained above, the prosecution
presented solid evidence of a clear pattern of concerted action by

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defendant and his two conspirators in a series of follow-home
robberies in which Asian female bank customers, driving alone,
were targeted. Further, defendant made various admissions to
Detective Wawryk in his pretrial statement, including a
statement that is reasonably construed to be an admission by
defendant of participating in the crimes, but denying any
personal conduct in confronting any of the victims. Taken
together, this was strong evidence demonstrating an intent to rob
the victims.
There was also ample evidence showing direct acts, beyond
mere preparation, taken by the three conspirators towards the
accomplishment of the intended robberies. Each of the attempted
robbery victims was followed by defendant and his conspirators
for several miles to their homes or places of business. Each
victim was followed until she got out of her car, and then each of
the attempted crimes was “frustrated by extraneous
circumstances.” (Anderson, supra, 1 Cal.2d at pp. 689-690.)
Lydia Kim was followed to Master’s Golf, where the
security camera footage showed a red vehicle similar to
defendant’s car arriving in tandem with the car from which a
male exited and followed Lydia Kim until confronted by the
manager of Master’s Golf. With respect to both Ms. Le and Jieun
Kim, defendant and his coconspirators parked outside the bank,
waiting for them to leave, and then followed them for several
miles. This conduct was observed and attested to by several
undercover detectives. Ms. Le was followed all the way to her
parking spot inside her workplace parking garage, at which point
the attempt was frustrated by the presence of the parking
attendant. The attempt on Jieun Kim was frustrated by her

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ability to drive safely through a double-set of security gates upon
her arrival home.
We have no trouble concluding there was substantial
evidence in the record to support the jury’s verdicts. (See, e.g.,
People v. Vizcarra (1980) 110 Cal.App.3d 858, 862 [evidence
showing the defendant approached a liquor store carrying a rifle,
tried to hide on a pathway adjacent to the store when observed by
a customer, and then fled without entering the store deemed
sufficient acts to support attempt robbery].)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
DUNNING, J.*
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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