P. v. Crownover

Filed 8/31/17 P. v. Crownover CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
GARY ISAIAH CROWNOVER,
Defendant and Appellant.
B276245
(Los Angeles County
Super. Ct. No. VA 137055)
APPEAL from the judgment of the Superior Court of
Los Angeles County, Raul Anthony Sahagun, Judge. Affirmed.
____________________________
James R. Bostwick, Jr., 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, Assistant Attorney
General, Shawn McGahey Webb and David W. Williams, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________

-- 1 of 16 --

2
Defendant and appellant Gary Crownover challenges his
conviction for robbery, in violation of Penal Code section 211.1
Crownover contends that the trial court violated his right to due
process by allowing evidence of an out-of-court identification that
he alleges was unduly suggestive and unreliable. He also contends
that the trial court erred by allowing the prosecutor to recall him
as a witness, and that the prosecutor committed misconduct by
making improper arguments during closing argument. We affirm.
FACTS AND PROCEEDINGS BELOW
Chino Intal was walking on Norwalk Blvd. in Hawaiian
Gardens at around 11:00 p.m. on September 26, 2014, when he
saw a man wearing a black hoodie and gray cargo shorts coming
toward him on a skateboard. Seconds after the man passed by,
Intal sensed the man’s presence at Intal’s side. Intal kept walking
until the man pulled a handgun out of the pocket of his hoodie and
pointed it at Intal’s chest. Intal was listening to music on his black
Beats headphones and could not hear what the man was saying, but
he instinctively took the headphones off and gave them to the man.
The man demanded Intal’s cellular phone, but Intal asked to be
allowed to keep it, saying that he needed it in case the “Air Force
ROTC” tried to contact him. The man allowed Intal to keep the
cellular phone, but told him not to call the police. The man then
fled, and Intal walked back to his home a short distance away.
When Intal arrived home, he told his parents about the
robbery and spoke with a friend about it by telephone. Intal then
called 911 and told the operator that he had been robbed by a
Hispanic man, 17-23 years old, wearing a black hoodie, gray shorts,
and long socks.
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.

-- 2 of 16 --

3
About one hour after the robbery, Los Angeles County
Deputy Sheriff Clarissa Prentice saw Crownover riding a bicycle
without a light, in violation of the Vehicle Code, approximately
12 blocks south of where the robbery took place. Crownover was
wearing a black hoodie and tan cargo shorts. Prentice ordered
him to stop and searched him, finding a loaded .25 caliber
semiautomatic handgun in the left pocket of his cargo shorts.
Crownover was also wearing a set of black Beats headphones
around his neck.
When Prentice and her partner learned that Intal had
reported a robbery earlier that night, and that the suspect in the
robbery matched Crownover’s general description, they called
Deputy Antoinette Bowen to ask for Intal to come to the location
where they had detained Crownover to identify whether he was
the man who had robbed Intal. Bowen picked up Intal at his home
and read him the sheriff’s department’s standard admonition
for identifications of this kind, known as “field show-ups.” The
admonition states as follows: “You are under no obligation to
identify this person as a suspect. We want to have guilty persons
identified but we also want to make sure that innocent persons
are cleared of suspicion in this matter. You should not draw any
conclusions about a person just because he is in our custody or
handcuffed.”
When Bowen arrived on the scene with Intal, she read
the same admonition to him a second time. Prentice positioned
Crownover between herself and her partner. Bowen stopped
her patrol car approximately 30 feet away and shined her
headlights, spotlights, and overhead light in Crownover’s direction.
Streetlights provided additional illumination. Intal remained in
the backseat of Bowen’s patrol car and viewed Crownover through
the plexiglass divider that separated the front seats from the back.

-- 3 of 16 --

4
The deputies placed Crownover facing forward, then had him turn
from side to side. At Intal’s request, the deputies then put the hood
of Crownover’s sweatshirt up and placed him in the same positions.
Bowen asked Intal if Crownover was the man who had robbed him,
and Intal answered “that’s the guy.” Intal said he was 100% sure
about the identification.
After the identification, Prentice interviewed Intal. She
showed him the Beats headphones she had discovered in
Crownover’s possession, and Intal identified them as his stolen
headphones. He stated that he could identify them by their smell
of sweat and Lysol—he often wore the headphones while exercising,
and cleaned them with Lysol.
An information charged Crownover with one count of
robbery, in violation of section 211, and one count of carrying a
loaded handgun, in violation of section 25850, subdivision (a). The
information alleged further, with respect to the robbery charge, that
Crownover personally used a firearm, pursuant to section 12022.53,
subdivision (b), and that a principal in the robbery was armed with
a firearm, pursuant to section 12022, subdivision (a).
At trial, Crownover testified in his own defense. He claimed
that he spent a few hours on the evening of the robbery at the
nearby Bingo Club, then went toward a friend’s house. Just after
leaving the Bingo Club, a man approached with a gun and asked
Crownover if he had any money. Crownover testified that he
bought the gun from the man for $50 but did not examine the gun
or see if it was loaded. He then continued on his bicycle to his
friend’s house and left after a few minutes, at which point the police
stopped him.
A psychologist testified on behalf of Crownover as an expert
on memory and perception. He explained that identifications may
be unreliable because people have difficulty in identifying strangers

-- 4 of 16 --

5
even under the best of circumstances. These problems may be
compounded when a suspect is wearing a hood and when a witness
is in a stressful situation. The expert stated that harsh white lights
may alter a person’s appearance, and that identifications are less
reliable when made from inside the back seat of a police car at a
distance of more than 25 feet. Finally, the expert opined that the
procedure of an identification may affect the accuracy of the results.
If the police present a witness with a single suspect instead of a
line-up, the witness may infer that the police have already found
the perpetrator, and need only confirmation.
The jury found Crownover guilty of both robbery and carrying
a loaded handgun. The jury also found true the allegations that
Crownover personally used a firearm in the robbery, and that he
was not listed with the Department of Justice as the registered
owner of the gun.
DISCUSSION
Crownover makes three claims on appeal.2 First, he contends
that the use of a single-person field show-up process to identify him
violated his constitutional right to due process. Next, Crownover
contends that the trial court violated his Fifth Amendment privilege
against self-incrimination by allowing the prosecutor to recall him
for further cross-examination after he had been excused. Finally,
he contends that the prosecutor committed misconduct by implying
that he personally believed in Crownover’s guilt and by impugning
2 Crownover also contends that the trial court erred by
denying his motion for a new trial. In that motion, Crownover
made the same arguments regarding the identification procedure
and prosecutorial misconduct that he does in his appellate briefs.
Because we conclude that the trial court did not commit prejudicial
error with respect to these issues, we also hold that the court acted
within its discretion in denying Crownover’s motion for a new trial.

-- 5 of 16 --

6
the character of Crownover’s trial counsel and his expert witness
during closing argument. We agree with Crownover that the
prosecutor committed misconduct, but we conclude that the error
was not prejudicial. Otherwise, we reject Crownover’s arguments.
I. Identification Procedure
Crownover argues that the procedure the sheriff’s department
followed when Intal identified him was unduly suggestive, and that
the identification was unreliable. He contends that Intal’s in-court
identification of him was tainted by the out-of-court procedure, and
that the introduction of evidence of that identification violated his
right to due process. We are not persuaded.
Before trial began, Crownover filed a motion to suppress
any in-court identification of him on the ground that Intal’s
initial identification was flawed. After hearing testimony
from the sheriff’s deputies who participated in the field show-up
identification and reviewing Intal’s preliminary hearing testimony,
the trial court denied the motion, finding that the initial
identification procedure was not unduly suggestive.
“ ‘In order to determine whether the admission of
identification evidence violates a defendant’s right to due process
of law, we consider (1) whether the identification procedure was
unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality
of the circumstances, taking into account such factors as the
opportunity of the witness to view the suspect at the time of the
offense, the witness’s degree of attention at the time of the offense,
the accuracy of his or her prior description of the suspect, the level
of certainty demonstrated at the time of the identification, and the
lapse of time between the offense and the identification.’ ” (People
v. Virgil (2011) 51 Cal.4th 1210, 1256 (Virgil).)

-- 6 of 16 --

7
The admission of evidence based on a one-person show-up
identification like the one used in this case does not necessarily
violate a defendant’s right to due process. “ ‘[A]lthough a
one-person showup may pose a danger of suggestiveness, such
showups “are not necessarily or inherently unfair. [Citations.]
Rather, all the circumstances must be considered.” [Citation.]’
(People v. Medina (1995) 11 Cal.4th 694, 753 . . . .) For an
identification procedure to violate a defendant’s due process rights,
‘the state must, at the threshold, improperly suggest something
to the witness—i.e., it must, wittingly or unwittingly, initiate an
unduly suggestive procedure.’ (People v. Ochoa (1998) 19 Cal.4th
353, 413 . . . .) However, ‘single-person show-ups for purposes
of in-field identifications are encouraged, because the element of
suggestiveness inherent in the procedure is offset by the reliability
of an identification made while the events are fresh in the witness’s
mind, and because the interests of both the accused and law
enforcement are best served by an immediate determination as
to whether the correct person has been apprehended. [Citation.]
The law permits the use of in-field identifications arising from
single-person show-ups so long as the procedures used are not so
impermissibly suggestive as to give rise to a substantial likelihood
of misidentification.’ ” (People v. Garcia (2016) 244 Cal.App.4th
1349, 1359 (Garcia).)
Crownover contends that the identification procedure was
suggestive because the deputies did not interview Intal or ask him
for a description of the perpetrator prior to the field show-up, and
because Intal saw Crownover while he was handcuffed and wearing
the same clothing that the perpetrator had worn. We are not
persuaded. Crownover cites no case law holding that the factors
he has cited render an identification procedure unduly suggestive.
Indeed, courts have held that “the mere presence of handcuffs on

-- 7 of 16 --

8
a detained suspect is not so unduly suggestive as to taint the
identification” (In re Carlos M. (1990) 220 Cal.App.3d 372, 386;
accord, In re Richard W. (1979) 91 Cal.App.3d 960, 970), and it is
not clear from the record that Intal was even aware that Crownover
was handcuffed at the time of the identification. Furthermore,
Intal stated that he identified Crownover not only by his clothing,
but also by his face and facial hair.
In addition, the deputies took steps to avoid biasing Intal.
Prior to the show-up, they told him only that they might have found
the perpetrator. At least one court has upheld a field identification
even when “police called his home and told him that ‘they had
caught the guys.’ ” (Garcia, supra, 244 Cal.App.4th at p. 1359.)
Deputy Bowen attempted to avoid the suggestive potential of the
procedure by twice reading Intal an admonition stating that it was
as important to exculpate the innocent as to identify the guilty.
According to Intal, he approached the show-up with an open mind,
and did not assume that the person the police had apprehended was
the man who robbed him.
Because we conclude that the identification procedure
was not unduly suggestive, we need not proceed to the second
step of determining whether the identification was nevertheless
reliable. (See Virgil, supra, 51 Cal.4th at p. 1256.) In any case,
the preponderance of the relevant factors indicate that the
identification of Crownover was reliable. We judge the reliability
of an identification by factors including the witness’s opportunity
to view the suspect at the time of the offense, the degree of
attention he paid to the suspect, the accuracy of his prior
description, the level of certainty in his identification, and the
amount of time between the initial encounter with the defendant
and the subsequent identification. (Ibid.) Although Intal had a
relatively short period of time in which to view Crownover, and

-- 8 of 16 --

9
Crownover’s face was partially obscured by the hoodie he was
wearing, Intal was able to give the 911 operator an accurate
description of Crownover’s appearance. Furthermore, Intal
identified Crownover with a high degree of confidence, and he did
so only an hour or so after the robbery took place.
II. Additional Cross-Examination of the
Defendant After the Defense Had Rested
Its Case
Crownover contends that the trial court violated his Fifth
Amendment privilege against self-incrimination by allowing the
prosecutor to recall him as a witness. We are not persuaded. The
prosecutor’s additional questions were merely a continuation of
the cross-examination that had concluded a few minutes earlier.
Crownover testified on his own behalf and was the final
defense witness. When the prosecutor finished cross-examining
him, the defense moved to introduce its exhibits into evidence and
rested its case. After a 10-minute recess, the prosecutor asked
to recall Crownover to testify as a rebuttal witness. The court
told the prosecutor that he could not call a criminal defendant
as a rebuttal witness. The prosecutor then requested to reopen
cross-examination. The trial court granted the request over the
defense’s objection.
The prosecutor then asked Crownover four questions about
a photograph of Crownover’s leg taken on the night of his arrest.
These questions related to a dispute regarding Crownover’s
appearance at the time of the robbery. In his 911 call, Intal told the
operator that his assailant had been wearing long socks. During
direct examination, Crownover testified that the night before his
arrest, he had obtained a tattoo on his lower leg reading “[f]uck
cancer,” in support of a cousin who was battling cancer. According
to Crownover, he was wearing low-cut socks on the night of his

-- 9 of 16 --

10
arrest because the tattoo was still fresh, and he was afraid that if
his socks were high enough to touch the tattoo, they might damage
it. When cross-examination resumed, the prosecutor showed
Crownover a picture of himself taken after his arrest in which he
was wearing long socks that had been pulled down to reveal the
tattoo. Crownover explained that the photograph was taken after
he had been booked at the sheriff’s station and given long socks to
wear.
A defendant who testifies on his own behalf waives “his
privilege against compelled self-incrimination with respect to
cross-examination on matters within the scope of the narrative
testimony he provided on direct examination, as well as on matters
that impeached his credibility as a witness.” (People v. Barnum
(2003) 29 Cal.4th 1210, 1227, fn. 3; accord, People v. James
(1976) 56 Cal.App.3d 876, 888 [noting that a defendant waives
the Fifth Amendment privilege only as to subjects of proper
cross-examination].) Because the prosecutor limited his questions
to matters Crownover had testified about during cross-examination,
Crownover’s Fifth Amendment rights were not violated.
In addition to the Fifth Amendment, the Evidence Code
also regulates testimony by a defendant in a criminal trial. Under
section 772, subdivision (d) of that code, a criminal defendant “may
not, without his consent, be examined under direct examination
by another party.” Thus, the court in People v. Mack (1977)
66 Cal.App.3d 839, 861 held that although the defendant had
waived his privilege against self-incrimination by testifying in
his defense, it remained “improper” for the prosecution to call the
defendant as a rebuttal witness. The court stated that “whether
[the defendant] takes the stand or, having completed his testimony,
resumes the stand to do so, must be solely at his election.” (Ibid.)
In this case, however, the court merely allowed the prosecutor to

-- 10 of 16 --

11
reopen cross-examination of Crownover shortly after it concluded.
The court did not abuse its discretion by doing so. (See People v.
Tafoya (2007) 42 Cal.4th 147, 175-176; People v. Barnum, supra,
29 Cal.4th at p. 1227, fn. 3.)
III. Prosecutorial Misconduct
Crownover contends that the prosecutor committed
misconduct by indicating that he personally believed in Crownover’s
guilt, and by suggesting that Crownover’s trial attorney and expert
witness were motivated by money to lie on his behalf. This
argument fails because Crownover failed to preserve it by raising
a timely objection at trial. In addition, Crownover is not entitled to
relief on the basis of ineffective assistance of counsel. Although we
agree with Crownover that the prosecutor’s comments regarding his
trial attorney’s motivation were improper, they did not prejudice
him.
In his rebuttal argument, the prosecutor drew a contrast
between his own motivation and that of Crownover’s trial attorney
and expert witness. The prosecutor said, “We’re here to seek
justice. And that’s what a district attorney does. Persons
committed the crime, we prosecute. If the person didn’t commit
the crime, you don’t prosecute. That’s not the standard that the
defense has. 52,000 reasons why the defense doesn’t have that
standard: $50,000 [that Crownover paid to his attorney] to seek
justice, $2,000 to [the expert witness] not to seek justice. Their job
is to get the defendant off of this charge. So when [Crownover’s
attorney] says we’re trying to seek justice, that’s not what they’re
seeking.”
The prosecutor went on to describe how Crownover’s attorney
would have responded in the face of hypothetical evidence against
his client. According to the prosecutor, if Crownover had confessed,

-- 11 of 16 --

12
his attorney would have said, “ ‘Well, it wasn’t taped. How
can we believe it?’ ” If the hypothetical confession had been taped,
Crownover’s attorney would have said, “ ‘Well, my client was
coerced.’ ” The prosecutor went on to describe to the jury similar
responses to hypothetical evidence of fingerprints and DNA on the
headphones police recovered from Crownover. Later, the prosecutor
returned to the subject of Crownover’s payment to his attorney.
“Defendant has 16 months to come up with this fairytale. He paid
$50,000 to be coached as to what to say.”
Crownover’s attorney did not object to any of these
statements immediately. After the jury retired to deliberate,
Crownover’s attorney made an objection and a motion for a mistrial,
arguing that the prosecutor’s statements that he was paid $50,000
to coach Crownover “border[ed] on prosecutorial misconduct.” The
court replied that Crownover’s attorney “should have made the
objection at that time. You’ve waived that. The jury is now
deliberating. I would consider the objection [if] you made [it] at
the time it was uttered, but you didn’t, and I took that as a defense
strategy.”
“The standards governing review of [prosecutorial]
misconduct claims are settled. ‘A prosecutor who uses deceptive
or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution
when they infect the trial with such “ ‘unfairness as to make
the resulting conviction a denial of due process.’ ” (Darden v.
Wainwright (1986) 477 U.S. 168, 181 . . . ; see People v. Cash
(2002) 28 Cal.4th 703, 733 . . . .) Under state law, a prosecutor
who uses such methods commits misconduct even when those
actions do not result in a fundamentally unfair trial.’ (People v.
Alfaro (2007) 41 Cal.4th 1277, 1328 . . . .) ‘In order to preserve a
claim of misconduct, a defendant must make a timely objection and

-- 12 of 16 --

13
request an admonition; only if an admonition would not have
cured the harm is the claim of misconduct preserved for review.’
(Ibid.) When a claim of misconduct is based on the prosecutor’s
comments 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.
Friend (2009) 47 Cal.4th 1, 29.) To establish a claim of misconduct,
“bad faith on the prosecutor’s part is not required. ([People v. ]Hill[
(1998) 17 Cal.4th 800,] 822-823 [(Hill)].) ‘[T]he term prosecutorial
“misconduct” is somewhat of a misnomer to the extent that it
suggests a prosecutor must act with a culpable state of mind. A
more apt description of the transgression is prosecutorial error.’ ”
(People v. Centeno (2014) 60 Cal.4th 659, 666-667.) A prosecutor
may commit misconduct by stating his own personal belief in the
defendant’s guilt (People v. Lopez (2008) 42 Cal.4th 960, 971), or by
attacking the integrity of defense counsel. (Hill, supra, 17 Cal.4th
at p. 832.)
The People contend, and we agree, that Crownover forfeited
his claim of prosecutorial misconduct by failing to make a timely
objection. “ ‘[A] defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the
same ground—the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the
impropriety.’ ” (People v. Stanley (2006) 39 Cal.4th 913, 952.)
A failure to object or to request an admonition may be excused if
either would have been futile or would not have cured the harm
caused by the misconduct. (Hill, supra, 17 Cal.4th at p. 820.)
Crownover contends that no objection was required in this case
because an objection would have been futile and because an
admonition to the jury would have been ineffective. The record
shows that an objection would not necessarily have been futile.

-- 13 of 16 --

14
When Crownover objected and moved for a mistrial after the jury
had begun deliberations, the court stated explicitly that it would
have considered the objection, had it been timely. We also disagree
that an admonition would not have cured the harm. “A jury will
generally be presumed to have followed an admonition to disregard
improper evidence or comments, as ‘[i]t is only in the exceptional
case that “the improper subject matter is of such a character that
its effect . . . cannot be removed by the court’s admonitions.” ’ ”
(People v. Pitts (1990) 223 Cal.App.3d 606, 692, superseded by
statute on other grounds as stated in People v. Levesque (1995)
35 Cal.App.4th 530, 537.)
Crownover contends that, if his argument regarding
prosecutorial misconduct is not preserved, then his attorney
rendered ineffective assistance by failing to object. In order to
prevail on a claim of ineffective assistance of counsel, a defendant
must establish, first, that his attorney’s performance was deficient,
and second, that those errors prejudiced him. (Strickland v.
Washington (1984) 466 U.S. 668, 687.) To demonstrate prejudice,
“[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
(Id. at p. 694.)
We need not decide whether Crownover’s counsel fell below
the standard of reasonably effective assistance because there is
no reasonable probability of a different outcome in the case even
if the attorney had made a timely objection. The evidence against
Crownover was overwhelming. Sheriff’s deputies arrested
Crownover a short distance away from the scene of the robbery
wearing the same clothing that Intal had described to the 911
operator. At the time of the arrest, Crownover was carrying a

-- 14 of 16 --

15
loaded handgun and headphones identical to those Intal reported
stolen. Intal positively identified Crownover as his assailant both
on the night of the robbery and in court. In comparison with this
mass of evidence, the prosecutor’s comments regarding the motives
of Crownover’s attorney were unlikely to have had a significant
influence on the jury. Furthermore, Crownover’s attorney made
similar, albeit less inflammatory, comments during his own closing
argument. Crownover’s attorney told the jury that the prosecutor
had been “coaching” Intal before he testified, and that Intal
“followed the district attorney’s instructions” in testifying.
“Although the remarks of a defense counsel do not justify
retaliation by the prosecution, such remarks must be considered
in assessing the prejudicial effect of the prosecutorial misconduct.”
(People v. Perry (1972) 7 Cal.3d 756, 789, overruled on other
grounds by People v. Green (1980) 27 Cal.3d 1, 28-34.) By
insinuating that the prosecutor behaved improperly in preparing
Intal for testifying, Crownover’s attorney lessened the prejudicial
effect of the prosecutor’s attacks on himself.
Despite our conclusion that the prosecutor’s remarks did not
prejudice Crownover, we nevertheless note our disapproval of the
prosecutor’s conduct in the rebuttal argument. “A prosecutor is
held to a standard higher than that imposed on other attorneys
because of the unique function he or she performs in representing
the interests, and in exercising the sovereign power, of the state.”
(Hill, supra, 17 Cal.4th at p. 820.) The prosecutor’s suggestion
that Crownover’s trial attorney could not be trusted solely because
Crownover was paying him for his representation fell below that
standard and was unbecoming of a prosecutor.

-- 15 of 16 --

16
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J.
LUI, J.

-- 16 of 16 --