California Court of Appeal Aug 4, 2016 No. E062827Unpublished
Filed 8/4/16 P. v. Scarff CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062827
v. (Super.Ct.No. INF1200638)
JUSTIN RYAN SCARFF, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Johnson,
Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
I
INTRODUCTION1
Defendant Justin Ryan Scarff attacked an elderly man and his wife in their home.
A jury convicted defendant of five offenses: (1) attempted murder (§§ 664/187); (2)
1 All statutory references are to the Penal Code unless stated otherwise.
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home invasion robbery (§§ 211, 212.5, subd. (a)); (3) attempted first degree robbery
(§§ 664/211, 212.5, subd. (a)); and (4) and (5) two counts of assault with a deadly
weapon (§ 245, subd. (a)(1).) The jury found on three counts (1, 3, and 4) defendant
personally inflicted great bodily injury on a person 70 years of age or older. (§§ 1192.7,
subd. (c)(8), 12022.7, subd. (c).) The jury found that defendant did not act with
premeditation and deliberation in committing attempted murder. The court found
defendant had a prior strike conviction and sentenced him to prison for 33 years four
months.
On appeal, defendant challenges the court’s admission of testimony based on a
suggestive photographic lineup. Defendant also contends the court allowed improper
argument by the prosecutor and unfairly curtailed defendant’s closing argument, as well
as committing several sentencing errors. Based on our review, we affirm the judgment
with a modification of defendant’s sentence.
II
FACTS
On March 17, 2012, at 4:30 p.m., Leonard Kaplan, age 76, was walking his dog in
a gated community in Palm Springs when he saw defendant, whom he did not know.
Defendant followed Kaplan home to his garage and confronted him, demanding money.
Kaplan said he had no money. Defendant first threatened Kaplan, then he seemed to be
leaving before he announced, “I’m going to do it,” and stabbed Kaplan with a knife in the
face and neck. Kaplan tried to defend himself but, as they struggled, Kaplan fell to the
floor and defendant kicked him in the face and chest.
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Defendant stopped attacking Kaplan and entered the house where he confronted
Kaplan’s wife, Gail Holtzman, in the bedroom. Still holding the knife, defendant
demanded money. Defendant grabbed Holtzman’s shirt and dragged her into the
hallway, where she slipped and fell. After defendant released her, she ran quickly to the
alarm system panel but she could not remember the panic code. Defendant grabbed her
again and she fell in the den. Defendant snatched her handbag and knitting bag and fled
the house.
Holtzman went into the kitchen and found her husband covered in blood and
holding the phone. He could not call 911 because blood obscured his vision. Holtzman
called 911 and accompanied Kaplan to the hospital.
Kaplan and Holtzman’s neighbors, David Brastauskas and his husband, saw
defendant outside their house, heard their garage door rattling, and called 911. Another
pair of neighbors were Robert Stroney and William Hass, who spotted defendant outside,
“casing the joint.” Then Stroney watched defendant change his clothes and place his
discarded clothes in the trash barrel. Stroney observed defendant’s tattoos and called
911. Hass went outside and chased defendant away.
The police arrived and found Holtzman’s handbag and knitting bag in the recycle
bin. The police apprehended defendant on a bus, wearing clothes and carrying a duffel
bag, matching the description given by Stroney. Kaplan’s DNA was detected on
defendant’s ear, his shoelaces, and on a dollar bill on his person.
Defendant denied attacking Kaplan or Holtzman. Instead, he provided an
elaborate and detailed alibi in which he claimed he and his girlfriend had engaged in a
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bloody fight on March 16. The next day he performed some tattooing from 1:00 p.m.
until 3:40 p.m. and waited for his girlfriend to pick him up, finally deciding to take a bus
at 5:00 p.m. Defendant was tying his shoelaces at the bus stop when a “Mexican”
stranger, wearing a black Raiders jacket tripped on him and they began fighting. The
stranger dropped some money on the ground and ran away. Defendant picked up the
money.
When he was arrested, defendant told the police about being knocked down but he
did not speak about the fight. He explained he was not carrying any tattoo equipment
because his client had his own equipment. Defendant thought the blood on his ear was
from the fight with his girlfriend.
Robert Mirkovic testified that defendant had done tattoo work for him on the
afternoon of March 17, using Mirkovic’s tattoo gun. They finished about 4:30 p.m.
Defendant’s girlfriend arrived but left after arguing with defendant. Mirkovic saw a
person in a black Raiders jacket knock defendant over while he was tying his shoe. They
scuffled briefly and defendant ran off to catch a bus.
Other relevant facts will be discussed in the body of the opinion.
III
RESTITUTION FINES
Defendant argues the court violated due process when it imposed a $10,000
restitution fine and a $10,000 parole revocation restitution fine as recommended in the
probation report. He argues the fines were not explicitly discussed during his sentencing
hearing. Therefore he was not accorded his constitutional right to a hearing. This
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argument fails because defendant had notice of the proposed fines in the probation report
and he did not object to the fines at the sentencing hearing. (People v. Williams (1997)
16 Cal.4th 153, 250; People v. Scott (1994) 9 Cal.4th 331; People v. Blankenship (1989)
213 Cal.App.3d 992, 997-998.) Additionally, such fines are mandatory or a sentence is
invalid. (People v. Hudson (2003) 113 Cal.App.4th 924, 929.) The trial court has
discretion in imposing the fines but no express findings or separate hearing was required.
(§§ 1202.4, 1202.45; People v. Romero (1996) 43 Cal.App.4th 440, 448-449.)
IV
COUNT 3
Defendant next contends his sentence on count 3 for attempted robbery of Kaplan
should have been stayed rather than imposed consecutively to his sentence on count 1 for
attempted murder of Kaplan.
Section 654 precludes multiple punishments for “a course of conduct which
violated more than one statute but nevertheless constituted an indivisible transaction.”
(People v. Perez (1979) 23 Cal.3d 545, 551.) However, where the trial court finds a
defendant entertains multiple and independent criminal objectives, separate punishments
are permitted for crimes which would otherwise constitute an indivisible course of
conduct. (Ibid.) The reviewing court employs a deferential standard of review of the
trial court’s findings based on substantial evidence. (People v. Hutchins (2001) 90
Cal.App.4th 1308, 1312-1313.)
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At the sentencing hearing, the trial court denied defendant’s request to stay his
sentence on count 3 and imposed the sentence consecutively.2 Substantial evidence
supports the trial court’s findings. Although the attempted robbery and murder of Kaplan
were close temporally, the facts demonstrate defendant had different criminal objectives.
(People v. Coleman (1989) 48 Cal.3d 112, 162.)
When defendant followed Kaplan into the garage, he first demanded money but
then defendant seemed to be leaving before he changed his mind and began stabbing
Kaplan. Defendant’s murder attempt was a separate and independent act not necessary to
effect the robbery. (People v. Coleman, supra, 48 Cal.3d at pp. 162-163; People v.
Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300.) As in Sandoval, defendant attempted
to rob Kaplan who was uncooperative. The attempted robbery was complete at this point.
It was only after this that defendant apparently determined for his own purposes to punish
Kaplan or “to assuage his own thwarted desires by seeking other and different
gratification” by stabbing Kaplan with absolutely no provocation. (Ibid.)
In these circumstances, the rule has been clearly set out: “[A] separate act of
violence against an unresisting victim or witness, whether gratuitous or to facilitate
escape or to avoid prosecution, may be found not incidental to robbery for purposes of
section 654.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) The stabbing was a
much more extreme act than was reasonably necessary to accomplish the original robbery
2 We agree with the parties that defendant’s sentence of two years eight months on count 3 should be corrected to a sentence of 16 months. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187.)
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offense. (People v. Cleveland (2001) 87 Cal.App.4th 263, 272.) Each crime deserved a
separate punishment and therefore section 654 does not apply.
V
PROSECUTORIAL ERROR
At the conclusion of his rebuttal argument, the prosecutor asked the jury to
contemplate Kaplan “on that garage floor with blood pouring out of his face” and urged
the jury to find defendant guilty of attempted murder. The court overruled defense
counsel’s objection based on prosecutorial misconduct. The prosecutor defended his
comment, arguing he was entitled to argue the facts, which showed defendant was serious
in his attempt to kill Kaplan. On appeal, defendant renews his objection to the
prosecutor’s comment, arguing it improperly appealed to the passions of the jurors and
constituted reversible state law error and violated federal due process.
Defendant relies on cases holding it is improper to inflame the passions of the
jury: “‘“It is, of course, improper to make arguments to the jury that give it the
impression that ‘emotion may reign over reason,’ and to present ‘irrelevant information
or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an
deferentially the trial court’s findings of historical fact, especially those that turn on
credibility determinations, but we independently review the trial court’s ruling regarding
whether, under those facts, a pretrial identification procedure was unduly suggestive.’
(People v. Gonzalez (2006) 38 Cal.4th 932, 943.) ‘Only if the challenged identification
procedure is unnecessarily suggestive is it necessary to determine the reliability of the
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resulting identification.’ (People v. Yeoman (2003) 31 Cal.4th 93, 125.)” People v.
Alexander (2010) 49 Cal.4th 846, 901-902.)
A defendant’s photograph should not “stand out” by suggesting the witness should
select him. (People v. Yeoman, supra, 31 Cal.4th at p. 124.) However, the photographs
in a lineup need not be identical or indistinguishable. (People v. Brandon (1995) 32
Cal.App.4th 1033, 1052; People v. Wimberly (1992) 5 Cal.App.4th 773, 790.) Instead, an
identification procedure will be deemed unfair only if it suggests a suspect’s identity in
advance of the witness’s identification. (Ibid.) In the present case, the trial court
determined the photographs were similar enough not to be impermissibly suggestive.
(People v. DeSantis (1992) 2 Cal.4th 1198, 1222; People v. Gonzalez, supra, 38 Cal.4th
at p. 943; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1082.) We will not reject the
trial court’s determination. (Gonzalez, at p. 943.)
Other evidence also supports the reliability of the identifications. Holtzman
recognized defendant at a curbside lineup. She did not notice his facial tattoo until the
trial. Kaplan “instantly” identified defendant’s photograph a few days after March 17.
Kaplan confidently recognized defendant at trial. Haas identified defendant’s photograph
based on his confrontation with him at the property. Haas relied on defendant’s bone
structure, not his facial tattoo. Stroney was able to identify defendant after watching him
from his window. Stroney was also able to describe defendant’s clothing, leading to his
arrest. None of these identifications were based on defendant’s facial tattoo. Thus, under
the totality of circumstances there is no substantial likelihood of a suggestive
misidentification. (People v. Cunningham, supra, 25 Cal.4th at p. 990.)
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Finally, any error was harmless. Two witnesses saw defendant changing his
clothes near the dumpster where the police found Holtzman’s purse and knitting bag.
Kaplan’s DNA on defendant’s person further implicated him. Defendant’s implausible
explanation that the blood was smeared on him by the true culprit was rejected by the
jury. Five witnesses identified defendant in court. Any error in admitting pretrial
identification evidence was harmless beyond a reasonable doubt. (People v. St. Germain
(1982) 138 Cal.App.3d 507, 519.)
VIII
DISPOSITION
We order the abstract of judgment be corrected to show a 16-month sentence on
count 3. The trial court is ordered to forward a copy of the corrected abstract to the
Department of Corrections and Rehabilitation. Subject to that modification, we affirm
the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for attempted murder, robbery, and assault, holding that the trial court properly admitted identification evidence, did not err in its evidentiary or sentencing rulings, and that any errors were harmless. The court modified the sentence on count 3 to 16 months to correct a sentencing error.
Issues
Whether the trial court erred in admitting testimony based on a suggestive photographic lineup.
Whether the trial court committed prosecutorial error by allowing inflammatory closing arguments.
Whether the trial court abused its discretion by limiting the duration of defense counsel's closing argument.
Whether the trial court erred in imposing consecutive sentences for attempted robbery and attempted murder under Penal Code section 654.
Disposition. Affirmed with directions
Quotations verified verbatim against the opinion
“The trial court determined the photographs were similar enough not to be impermissibly suggestive.”
“The prosecutor’s comment was proper as a fair comment on how the evidence demonstrated that defendant intended to attempt to kill Kaplan.”
“[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654.”