The opinion
Filed 3/6/23 P. v. Robinson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A163873
v.
MARIUS ROBINSON, (Alameda County
Super. Ct. No.
Defendant and Appellant.
20CR011984)
A jury convicted Marius Robinson of murder for shooting
Robert C. on a street corner in Oakland in July 2020. Robinson
contends that the prosecution committed misconduct by refusing
to grant use immunity to one of his witnesses and that the trial
court erred by admitting video evidence of a shootout that
occurred a few months before Robert C.’s murder. We find no
error and will affirm.
BACKGROUND
February 2020 shooting
One day in February 2020, an SUV turned north onto 74th
Avenue from International Boulevard and stopped for about a
minute. Robinson pulled up in his car and stopped behind the
SUV. The SUV then proceeded northbound on 74th Avenue.
1
About 25 seconds later, Robinson drove north on 74th Avenue
very quickly.
Meanwhile, at the other end of the block, a pickup truck
turned south onto 74th Avenue. A garbage truck in the middle of
the street blocked traffic in both directions and separated the
pickup truck from the SUV. Earl Anthony and Troy Fletcher got
out of the pickup truck, carrying handguns. A surveillance
camera video captured the pickup truck slowly driving towards
the garbage truck while the men walked and then ran south on
the sidewalks on both sides of 74th Avenue, shooting at the SUV
when they approached the garbage truck. Anthony and Fletcher
exchanged 10 to 15 shots with the occupants of the SUV. They
then ran back north on 74th Avenue while continuing to fire at
the SUV and turned the corner onto a different street. The
pickup truck reversed away from the area of the shooting and
around the corner where Anthony and Fletcher had run; the
truck then picked up Anthony and Fletcher and drove off.
Two minutes after he had driven quickly north towards the
area where the shootout took place, Robinson sped in reverse
back south and pulled into the driveway of his home on 74th
Avenue. Robinson then went in his house.
The driver of the pickup truck was an African-American
man in his 40s. Police engaged in a high-speed pursuit of the
pickup truck, but an air support unit lost sight of it. Police later
apprehended Anthony and Fletcher but not the driver of the
pickup truck, which the police found abandoned. However, the
2
police observed the vehicle and saw Keyniya Grier and another
woman walk up to the pickup truck and drive off in it.
Robinson visited Fletcher and Anthony while the two were
in jail. Grier also visited Fletcher, and she visited Robinson as
well after he was later arrested. During one of Robinson’s visits
with Anthony, Anthony described seeing someone driving very
quickly and hoping the driver did not get pulled over. Robinson
responded, “I was, right?”
The police found 9-millimeter bullet casings in and around
the SUV on 74th Avenue and .45 caliber casings on the street.
Some of the .45 caliber casings were manufactured by Aguila and
others were manufactured by another company.
Robert C.’s murder
On July 2, 2020, Robert C., who had been drinking, spoke
to Robinson’s wife, Q.R., and tried to grab her in front of A.N.’s
grocery store in Oakland.1 Q.R. became upset and said she was
going to call her husband. Q.R. entered A.N.’s store, and A.N.
stopped Robert C. and told him to go away.
Q.R.’s brother, J.P., lived across the street from Q.R. and
Robinson’s home. J.P. was sitting in his car next to his home
when Q.R. walked up. Q.R. was crying and told J.P. that she had
gotten in an argument at the store with a man who had done
something that upset her. J.P. then got out of his car and started
1 Out of respect for their privacy, we use initials or first
name and last initial to refer to witnesses, the victim, and
individuals not involved in any crime. (Cal. Rules of Court, rule
8.90(b)(4), (b)(10); Advisory Com. com., Cal. Rules of Court, rule
8.90.)
3
walking to the store with Q.R. J.P. intended to confront the
person at the store and beat him if he had done what Q.R. had
said.
While J.P. and Q.R. were walking down the street towards
the store, they saw Robinson walking up the street towards them.
Q.R. was still crying hard and explained to Robinson what had
happened at A.N.’s store. Robinson was excited and shocked. He
continued walking past Q.R. and J.P. and entered the gate of the
complex where he and Q.R. lived. By the time Q.R. and J.P.
reached the corner of International Boulevard near the store,
Robinson had rejoined them. He was clutching something in his
waistband as he walked. The trio then began looking for Robert
C., with Robinson in the lead, Q.R. behind him, and J.P. at the
rear.
About 5 or 10 minutes after the initial argument that set
off the search, Robinson, Q.R., and J.P. were back at A.N.’s store,
where Robinson asked A.N. the whereabouts of the man who had
tried to hurt Q.R. A.N. explained that the man had gone.
Robinson then went to get his BMW, and he met Q.R. and J.P. at
a different business. With J.P. in the front passenger seat and
Q.R. in the back seat, Robinson drove to various locations where
they got out and looked for Robert C. Failing to find him, they
continued to drive around looking for him, with Robinson
stopping twice to talk to people.
Eventually, after about 30 minutes of searching on foot and
in the car, Q.R. noticed Robert C. near the corner of 72nd Avenue
and International Boulevard. Robinson made a U-turn on
4
International Boulevard and then parked in the middle of the
street on 72nd Avenue, near the corner. J.P. got out of the car
and was about three feet away from Robert C. when he heard
Robinson ask Robert C. what he had done to Q.R. Then J.P.
heard some shots to the side and behind him and saw Robinson
shoot Robert C. with a chrome handgun. They both got back in
the car and drove back to their homes.
Police officers found five Aguila-brand .45 caliber casings at
the corner where Robert C. was shot. A search of Robinson’s
home found that his BMW was the only car covered in his
driveway. The BMW was not covered in an earlier Google map
photo. Police found three unfired Aguila-brand .45 caliber
cartridges in Robinson’s bedroom.
Expert analysis of the Aguila casings found at the February
2020 shooting and Robert C.’s murder showed that the gun that
was used to kill Robert C. was also one of the guns used in the
February 2020 shooting. Additionally, the casings found at the
February 2020 shootout, the casings found at Robert C.’s murder,
and the unfired cartridges found in Robinson’s bedroom had all
been cycled through a second firearm, different than the one that
was used to shoot Robert C.
Robinson was charged with murder (Pen. Code, § 187) and
possession of a firearm with a prior conviction (Pen. Code,
§ 29900), as well as various special allegations about firearm use,
infliction of great bodily injury, and prior convictions.
5
Patrick Nickerson testimony
At trial, Robinson called Patrick Nickerson as a witness to
testify that Nickerson had been standing across the street when
Robert C. was shot and that Robinson was not the shooter.
When Robinson first called him, Nickerson invoked the
Fifth Amendment when asked whether he was present at the
shooting. In a reported chambers conference, prosecutor argued
that Nickerson’s invocation of the Fifth Amendment was proper
because, among other reasons, the prosecutor intended to cross-
examine Nickerson about his involvement in other crimes,
including separate incidents of armed robbery and a pending
charge of being a felon in possession of a firearm. The trial court
agreed.
Robinson argued that due process obligated the prosecutor
to grant Nickerson use immunity for his testimony, since
Nickerson was an eyewitness who could support Robinson’s
defense that he was not the shooter. Robinson said it was in the
government’s interest to grant Nickerson use immunity because
it would allow the prosecutor to conduct exploratory questioning
on his pending cases and allow for collateral investigation of any
information learned. The prosecutor countered that Nickerson’s
testimony was not credible for various reasons and that use
immunity was not in the government’s interest because the
government could not make use of any inculpatory admissions
Nickerson might make. The court denied Robinson’s request
without prejudice to Robinson raising the issue again.
6
In open court, still outside the presence of the jury, the
court nonetheless allowed Robinson to ask Nickerson more
questions. Nickerson admitted telling the police in an interview
that he saw a single light-skinned person who was probably taller
than 6 feet 4 inches get out of the BMW and shoot someone.
Robinson is not light-skinned. The court then held a recess so
Nickerson could consult with counsel about invoking the Fifth
Amendment. Nickerson’s counsel alluded to Nickerson having
cognitive issues that were causing him not to continue invoking
the Fifth Amendment. The trial court decided to give Nickerson’s
counsel more time to consult with Nickerson before Nickerson
testified before the jury.
Several days later, Nickerson returned to the stand, still
outside the presence of the jury. After invoking the Fifth
Amendment in response to several of Robinson’s questions,
Nickerson proceeded to testify that Robinson had not shot Robert
C., he had not seen Robinson get out of the car, and he had not
seen Robinson in the car at all. When the prosecutor attempted
to cross-examine Nickerson by asking him about lies he had
admitted telling the police in his interview about his involvement
in an unrelated armed robbery, Nickerson invoked the Fifth
Amendment or claimed not to remember. The court then brought
in the jury, but Nickerson invoked the Fifth Amendment in
response to every question and refused to testify at all. The trial
court sustained Nickerson’s invocation of the Fifth Amendment
and ordered the jury not to consider his invocation for any
purpose.
7
The prosecutor later stated for the record his reasons for
not granting Nickerson use immunity. He said that Nickerson’s
testimony was not clearly exculpatory for various reasons,
including his criminal history, his lies to the police, and the
contradictions between his testimony, his prior statements to the
police, and other available evidence. The prosecutor also asserted
that the government had an interest in not granting use
immunity to Nickerson because of the serious crimes in which he
was believed to be involved (including one in which the suspects
shot at two district attorney investigators), and the government’s
desire not to be prevented from using any statements he might
make. The trial court agreed with the prosecutor that
Nickerson’s testimony was not clearly exculpatory.
Robinson later asked the trial court to read to the jury the
testimony Nickerson gave outside the jury’s presence, arguing it
was admissible hearsay under Evidence Code section 1350.2 The
court denied the request.
Robinson’s defense
Besides attempting to call Nickerson, Robinson attempted
to show J.P. was the shooter by getting J.P. to admit that in his
police interview he had initially denied being present during the
shooting. J.P. had not told the police that he was at the shooting
until the police falsely told J.P. that Robinson had said J.P.
committed the crime and that J.P. could be charged with the
murder if he did not name Robinson as the shooter. J.P.
2 Undesignated statutory references are to the Evidence
Code.
8
admitted that he interpreted the police as offering him immunity
if he said what the police wanted.
Robinson called an expert who testified that bullet strike
marks on the wall behind where Robert C. was shot were made
from shots fired perpendicularly to the wall, not at an angle. In
closing argument, Robinson relied on this, combined with J.P.’s
testimony that he was standing in front of Robert C. and that
Robinson was to J.P.’s side, to argue that J.P. must have been the
shooter, not Robinson.
Robinson himself testified and denied shooting Robert C.
Robinson denied ever learning why Q.R. was upset beyond that
there had been some kind of argument. Robinson claimed he
accompanied Q.R. and J.P. because he was concerned and wanted
to figure out what was going on. Robinson said he was holding
the waistband or pocket of his pants because they were too big,
and claimed the bulge visible in surveillance camera footage was
the flap of his belt. However, he admitted that other videos
showed his belt flap on the opposite side of his body from where
he was holding his waistband. He then shifted to saying the
bulge was his belt buckle.
Robinson said he drove his BMW around with J.P. and Q.R.
to look for a friend named Black who had been with Robert C.
during the argument with Q.R., not to look for Robert C.
Robinson said that Q.R. never recognized Robert C. on the corner
of 72nd Avenue. Robinson only turned onto 72nd Avenue from
International Boulevard because he saw Black. He insisted he
never saw Robert C.
9
When Robinson stopped on 72nd Avenue, he said he rolled
down his window to talk to Black, while J.P. got out and walked
around the rear of the car. Robinson saw three flashes in his left
side-mirror but did not hear anything. J.P. jumped back in the
car and they drove away, with Robinson asking J.P. what
happened and J.P. not answering. Robinson claimed he did not
learn until later that someone had been shot on the corner, after
he saw an alert from a neighborhood app on his phone. Robinson
said he did not know that the .45 caliber cartridges were in his
bedroom.
Concerning the February 2020 shooting, Robinson said he
drove up the street towards the shooting but was stopped by a car
in front of him making a three-point turn because of the garbage
truck obstructing the street. When Robinson heard gunfire, he
sped backwards in reverse rather than turning around to get
away from the danger.
On cross-examination, Robinson claimed that he had been
lying when he told the police in his interview that Q.R. had
described Robert C. to him and explained what Robert C. had
done, and that Robinson, Q.R., and J.P. had gone looking for
Robert C. with J.P. leading the way. Robinson also said he lied to
the police about many other details, such as his assertion in his
interview that he never found Black or drove to 72nd Avenue in
his BMW on the day of Robert C.’s shooting. He also admitted he
lied when he told the police he did not know who shot Robert C.
Robinson admitted that he was friends with Fletcher,
Anthony, and Grier. Robinson denied telling Fletcher during a
10
jail call after Robinson’s arrest that it was important for things to
“coincide” and said he actually told Fletcher it was important to
“go inside.” He admitted that he had told Fletcher to keep Q.R.
“off the grid” and had agreed with Fletcher that he did not want
her to “get grabbed.” He also said he told Q.R. and his friends
various lies, some of which were the same lies he told the police.
The prosecution later argued these conversations were an
attempt to make sure Q.R. and J.P. would tell the police the same
story. Robinson admitted he had been convicted twice of credit
card fraud and had a couple of other felony convictions.
Jury verdict and sentence
The jury found Robinson guilty of second-degree murder
and possession of a firearm with a prior conviction and found true
several special allegations. The trial court sentenced Robinson to
prison for 60 years to life.
DISCUSSION
I. Denial of use immunity
Robinson’s first argument concerns his inability to secure
favorable testimony from Nickerson because the prosecutor did
not grant Nickerson use immunity for his testimony.
The United States and California Constitutions protect
defendants in criminal proceedings against compelled self-
incrimination and also “privilege[] a person not to answer official
questions in any other proceeding, ‘civil or criminal, formal or
informal,’ where he or she reasonably believes the answers might
incriminate him or her in a criminal case. [Citations.] One
cannot be forced to choose between forfeiting the privilege, on the
11
one hand, or asserting it and suffering a penalty for doing so on
the other.” (Spielbauer v. County of Santa Clara (2009)
45 Cal.4th 704, 714.) It is nonetheless possible to compel a
witness to give incriminating answers if the witness “receives
immunity ‘coextensive with the scope of the privilege’—i.e.,
immunity against both direct and ‘derivative’ criminal use of the
statements. [Citations.] In such cases, refusals to answer are
unjustified, ‘for the grant of immunity has removed the dangers
against which the privilege protects.’ ” (Id. at pp. 714–715.)
“ ‘[A]lthough the prosecution has a statutory right, incident
to its charging authority, to grant immunity and thereby compel
testimony [citation], California cases have uniformly rejected
claims that a criminal defendant has the same power to compel
testimony by forcing the prosecution to grant immunity.’ ”
(People v. Samuels (2005) 36 Cal.4th 96, 127.) “ ‘The grant of
immunity is an executive function, and prosecutors are not under
a general obligation to provide immunity to witnesses in order to
assist a defendant.’ ” (People v. Williams (2008) 43 Cal.4th 584,
622.) Additionally, “California courts have no authority to confer
use immunity on witnesses.” (People v. Masters (2016) 62 Cal.4th
1019, 1051 (Masters).)
There remains one possible “theory by which due process
may compel a defense witness to be immunized: If a defendant
can show that the prosecutor refused to grant immunity ‘ “with
the deliberate intention of distorting the judicial factfinding
process,” ’ a retrial is necessary.” (Masters, supra, 62 Cal.4th at
p. 1051.) According to this theory, “[w]hen the prosecutor is
12
found to have committed misconduct by withholding immunity,
the remedy is to set aside the conviction and permit a new trial,
at which the prosecutor can be ordered ‘to grant statutory use
immunity,’ so that the witness can testify, or else face ‘a
judgment of acquittal.’ ” (Ibid.)
This theory arose from decisions from the federal Third
Circuit Court of Appeals, most recently from United States v.
Quinn (3d Cir. 2013) 728 F.3d 243 (en banc) (Quinn). (Masters,
supra, 62 Cal.4th at pp. 1051–1052.) Quinn adopted a five-
element test a defendant must satisfy to prove a due process
violation from the prosecution’s refusal to immunize a witness:
“ ‘[1] [I]mmunity must be properly sought in the district court; [2]
the defense witness must be available to testify; [3] the proffered
testimony must be clearly exculpatory; [4] the testimony must be
essential; and [5] there must be no strong governmental interests
which countervail against a grant of immunity.’ ” (Quinn, at
pp. 261–262; see also Masters, at pp. 1051–1052.)
In California, however, the general standard for
prosecutorial misconduct is that “ ‘[w]hen a prosecutor’s
intemperate behavior is sufficiently egregious that it infects the
trial with such a degree of unfairness as to render the subsequent
conviction a denial of due process, the federal Constitution is
violated. Prosecutorial misconduct that falls short of rendering
the trial fundamentally unfair may still constitute misconduct
under state law if it involves the use of deceptive or reprehensible
methods to persuade the trial court or the jury.’ ” (Masters,
supra, 62 Cal.4th at p. 1052.) Prosecutorial misconduct is
13
reviewed for abuse of discretion. (People v. Dworak (2021)
11 Cal.5th 881, 910.)
Robinson contends Masters endorsed the use of the Quinn
elements and that those elements here lead to the conclusion that
the prosecutor should have granted Nickerson immunity.
Robinson’s premise is incorrect, as Masters did not outright hold
that the Quinn elements for evaluating misconduct claims arising
from the denial of witness immunity control over the more
general standard for prosecutorial misconduct. (Masters, supra,
62 Cal.4th at p. 1052.) Rather, the Supreme Court accepted for
the sake of argument that the elements stated the correct test
and then found that the defendant had still failed to satisfy them.
(Ibid.) Following Masters’ lead, we, too, will accept for the sake of
argument that Quinn’s elements provide the relevant framework,
because Robinson’s claim nonetheless fails under those elements.
We need not consider all of the elements, however, as we
conclude Robinson has failed to show that Nickerson’s testimony
was clearly exculpatory, which is sufficient to defeat his
argument.
Quinn and Masters both elaborated on the meaning of
“clearly exculpatory.” Quinn declared, “Testimony that is ‘at best
speculative,’ [citation], ‘severely impeached’ by the witness’s prior
inconsistent statement(s), [citation], ambiguous on its face,
[citation], or ‘even if believed, would not in itself exonerate [the
defendant],’ [citation], is not clearly exculpatory.” (Quinn, supra,
728 F.3d at p. 262.) Quinn distinguished between testimony that
is exculpatory and testimony that is clearly exculpatory. (Id. at
14
pp. 262–263.) The court recognized that “the obvious purpose of
exculpatory evidence is to contradict the Government’s evidence
against the accused,” so the existence of conflicting evidence does
not affect whether a witness’s testimony is exculpatory. (Id. at
p. 263.) However, conflicting evidence does bear on the weight of
the witness’s testimony, so that, “though exculpatory on its own,
defense evidence that is overwhelmingly undercut or undermined
by substantial prosecution evidence in the record becomes so
lacking in credibility that it cannot be clearly exculpatory.”
(Ibid.)
Quinn found the proposed witness’s testimony at issue in
that case was not clearly exculpatory because the defendant had
not offered any proof that the testimony of the witness, who had
already been convicted based on his role in the crime at issue,
would be exculpatory, let alone clearly exculpatory. (Quinn,
supra, 728 F.3d at p. 263.) Quinn also noted that the witness
was possibly biased because the defendant was the brother of the
witness’s fiancée, the witness had already been convicted and
could have been viewed as trying to “ ‘take the fall’ ” for the
defendant, the witness had given inconsistent and inaccurate
statements to the police about the details of the crime, and the
witness would have been impeached with his prior convictions for
theft and fraud. (Ibid.) Finally, and most importantly in the
court’s view, the witness’s predicted testimony would have been
overwhelmed by the prosecution’s evidence of guilt. (Ibid.)
Masters reached a similar result. The defendant wanted to
compel testimony from a witness who had confessed to
15
participating in a conspiracy to kill a correctional officer and
named several other conspirators but did not name the
defendant. (Masters, supra, 62 Cal.4th at pp. 1045, 1052.)
Masters reasoned that the witness’s testimony was not clearly
exculpatory because there was no indication that the list of
conspirators the witness gave was intended to be exhaustive. (Id.
at p. 1052.) Masters also noted that other evidence established
the defendant’s guilt, including a note in the defendant’s
handwriting admitting his involvement. (Id. at p. 1053.) The
Court therefore concluded that “the evidence of [the defendant’s]
involvement overwhelm[ed] any inferences that might have been
drawn from [the witness] not naming [the defendant] as a
conspirator.” (Ibid.)
Nickerson’s testimony here was likely to be favorable to
Robinson, based on his testimony outside the presence of the jury
that the prosecutors had “the wrong man,” Robinson was not the
person who shot Robert C., and he had not seen Robinson get out
of the car or in the car at all. However, Nickerson’s testimony
still did not rise to the level of being “clearly exculpatory” as
defined in Quinn and Masters because he was subject to
impeachment, his statements about the crime were riddled with
inconsistencies, and the prosecution’s case was strong.
Beginning with impeachment, Nickerson could have been
impeached with his charge of being a felon in possession of an
assault rifle, which Robinson’s counsel agreed was a crime of
moral turpitude. (See People v. Robinson (2011) 199 Cal.App.4th
707, 715 [crime of possession of a firearm by a felon is crime of
16
moral turpitude]; see also People v. Lepolo (1997) 55 Cal.App.4th
85, 89 [witness can be impeached with conduct that has not
resulted in a conviction].) Nickerson also lied to the police in his
interview about offenses for which he was arrested. Nickerson
initially denied recently seeing the principal perpetrator of two
armed robberies or recognizing the perpetrator’s car, but later in
the interview he admitted that recent pictures from surveillance
cameras showed him driving with the perpetrator in the
perpetrator’s car. Robinson claims it borders on the absurd to
find testimony of a repeat offender like Nickerson not clearly
exculpatory simply because he did not confess to his own crimes.
But the issue is not whether or not Nickerson confessed; it is
whether he lied to the police concerning his offenses when he
could have simply remained silent. We have little trouble finding
that Nickerson’s self-serving lies significantly undermine his
credibility.
This impeachment would have been significant when
combined with evidence of the numerous inconsistencies in
Nickerson’s statements about Robert C.’s murder. Nickerson’s
police interview statements and testimony about witnessing
Robert C.’s shooting contradicted his prior statement to two
police officers on the day of the crime that he had no information
about the shooting. Nickerson claimed in his police interview
that his initial statement to police was a lie.
Additionally, Nickerson testified in court that the shooter
was probably taller than 6 feet 4 inches tall and “tall for sure,”
and he had told the police variously the shooter “had height on
17
him” and “wasn’t no short person.” But Nickerson also testified
he was not sure how tall the shooter was, and he told the police
the shooter “was not too tall,” and was “kind of tall or lanky.”
Nickerson initially said in his police interview that Robinson’s
BMW was white, and he shifted to saying the car was black only
after seeing a picture of the car. At certain points in his police
interview, Nickerson said confidently that the shooter came out
of the driver’s side of the BMW, wore a white shirt, and was the
only person to exit the car. But he also said he was not sure
whether the shooter got out of the driver’s or passenger’s side. In
his trial testimony, Nickerson said that the shooter came out of
the BMW, but claimed he did not remember which side.
Robinson argues that Nickerson’s varying statements
indicate simply that he did not remember clearly. He points out
that some of the details Nickerson provided the police about the
shooting were accurate, such as that Robert C. ran away after
being shot and collapsed in the middle of the street, or that the
BMW took a sharp turn before stopping on 72nd Avenue.
Robinson also contends that Nickerson provided the police a
great deal of accurate information about other crimes. But none
of this helps Robinson, as Nickerson’s inconsistencies about the
key details of Robert C.’s shooting made his likely testimony less
persuasive, regardless of whether the inconsistencies were
genuine failures of memory or the result of something else.
Moreover, it is noteworthy that Nickerson was certain about
details, such as Robert C.’s reaction, that would not inculpate
anyone. He professed uncertainty only about core facts—like the
18
shooter’s description, the color of the BMW, or whether the
shooter was the driver or passenger in the car—which could be
used to determine who was the killer. Nickerson’s hedging on the
more important details substantially undermined the value of his
testimony, preventing it from being of much help to Robinson.
Nickerson’s statements to the police were also contrary to
other available evidence and the key theory of Robinson’s
defense, to which Robinson testified directly, that J.P. shot
Robert C. Nickerson told the police that the shooter was most
likely wearing glasses. J.P. testified that he needed glasses but
was not wearing any and did not own any at the time of the
shooting, and neither J.P. nor Robinson were wearing glasses in
the surveillance videos. When looking at a photo line-up,
Nickerson picked two individuals who were not Robinson or J.P.
Nickerson was certain that the shooter was light-skinned, which
did not match either Robinson’s or J.P.’s appearance. Nickerson’s
various statements about the shooter being tall but not too tall
were also inconsistent with J.P. being the shooter, since J.P. was
6 feet 6 or 7 inches tall, which is quite tall by any metric.
Nickerson’s inability to pick J.P. out of the photo lineup is
not concerning, according to Robinson, because the transcript
shows Nickerson was reluctant to identify the shooter out of fear
that the shooter would retaliate against him. But this
explanation does not bolster Nickerson’s credibility, as Robinson
19
provides no explanation why Nickerson would feel safer
identifying the shooter in open court than he did in the lineup.3
Beyond not being very helpful to Robinson, some aspects of
Nickerson’s testimony actually could have helped the
prosecution. Nickerson’s testimony outside the presence of the
jury that he did not see Robinson in the car at all was contrary to
video evidence and Robinson’s own testimony in which he
admitted that he drove the BMW. Nickerson’s statements to the
police that the shooter came out of the driver’s side and was
wearing a white shirt strongly supported the prosecution’s case,
since video evidence showed that Robinson was the driver and
was wearing a white shirt. Additionally, Robinson himself was 5
feet 11 inches tall, which is consistent with Nickerson’s
description of the shooter as “kind of” tall and definitely not
short.
Moreover, other evidence of Robinson’s guilt was
overwhelming and undermined the value of any support
Nickerson might have offered to Robinson’s defense—in
The prosecutor offered additional rationales in the trial
3
court for why Nickerson’s testimony was not clearly exculpatory,
such as the prosecutor’s belief that Nickerson was not testifying
from personal knowledge and had answered questions initially
only to invoke the Fifth Amendment in front of the jury as a ploy
to assist Robinson, whom the prosecutor asserted was a gang
member like Nickerson. The prosecutor further detailed
additional inconsistencies within Nickerson’s statement to the
police and between that statement and other available evidence.
We need not discuss these additional rationales because the
impeachment and inconsistencies that we discuss in the text are
sufficient to show that Nickerson’s testimony was not clearly
exculpatory.
20
particular because the inculpatory evidence consisted of
testimony from a disinterested third party, video footage, and
ballistics evidence. A.N., the store owner, testified that Robinson
came into the store looking for the man who hurt his wife. This
contradicted Robinson’s testimony that he never learned fully
what Robert C. had done to Q.R. Video evidence showed
Robinson was agitated and leading Q.R. and J.P. while they
searched for Robert C., which supported the theory that Robinson
was the shooter and was inconsistent with Robinson’s statement
to the police that J.P. led the search. Surveillance video showed
Robinson holding a bulge under his shirt against his hip while
looking for Robert C., which was likely a gun he retrieved from
his house after initially encountering Q.R. and J.P. Robinson’s
claim that the bulge was his belt buckle or the tail of his belt and
that he was holding it to hold up his pants was not credible since
videos demonstrated the belt tail was dangling to the opposite
side from the center of his body, suggesting the belt buckle was
also in the center of his body. Additionally, Robinson was not
pulling up his pants in any of the videos, even when jumping up
and down or running.
Perhaps most significantly, the gun used to kill Robert C.
was the same one that Robinson’s admitted friends fired in the
February 2020 shooting at which Robinson was present;
ammunition of the same type used to kill Robert C. was found in
Robinson’s bedroom; and the ammunition from the February
2020 shooting, Robert C.’s shooting, and Robinson’s bedroom had
all been cycled through another gun. Robinson never even tried
21
to explain how the ammunition connected to the two crimes came
to be in his bedroom, instead simply claiming ignorance. In
addition, Robinson’s choice to cover the BMW in his driveway but
not any of his other cars, as well as various statements he made
during jails calls or visits about coordinating stories and
preventing the police from speaking to Q.R., suggested
consciousness of guilt.
Taking all this together, Nickerson and his likely testimony
was “ ‘severely impeached,’ ” inconsistent, and “overwhelmingly
undercut or undermined by substantial prosecution evidence in
the record” to the point that it became “so lacking in credibility
that it cannot be clearly exculpatory.” (Quinn, supra, 728 F.3d at
pp. 262–263, italics omitted.)
Robinson raises several legal arguments against the
significance of these problems with Nickerson’s testimony. He
contends none of these issues prevent Nickerson’s testimony from
being clearly exculpatory, citing Quinn’s statement that “[t]he
existence of conflicting evidence does not affect, however, whether
the defense evidence is exculpatory, though it may affect its
weight.” (Quinn, supra, 728 F.3d at p. 263.) Relatedly, Robinson
argues that any inconsistencies in Nickerson’s testimony do not
mean his testimony was not clearly exculpatory because a jury
can believe testimony despite inconsistencies.
Robinson misreads Quinn and misconstrues the nature of
the “clearly exculpatory” inquiry. Nickerson’s testimony could be
exculpatory despite its flaws. But Robinson must prove not just
that the jury could credit Nickerson’s testimony and that it was
22
exculpatory, but that Nickerson’s testimony was clearly
exculpatory evidence that would render the prosecution’s case
suspect. As discussed ante, Quinn recognized that while
inconsistencies, conflicting evidence, and impeachment of a
witness cannot prevent a witness’s testimony from being
exculpatory, such flaws can prevent testimony from being clearly
exculpatory. (Quinn, supra, 728 F.3d at p. 263; see also United
States v. Baca (D.N.M. 2020) 447 F.Supp.3d 1149, 1227 [“The
word “clearly” heightens the defendant’s burden”].) Failing to
recognize that the Quinn standard is contextual, Robinson
presents Nickerson’s testimony in isolation and thereby ignores
the extent to which it is undercut by the significant and objective
evidence of Robinson’s guilt. In the context of the full record,
Nickerson’s testimony was not clearly exculpatory. It was, at
best, unreliable and implausible, and at worst, potentially part of
an effort to mislead.
II. Admission of video of February 2020 shooting
Robinson next argues that the trial court erred by allowing
the prosecutor to play video evidence of the February 2020
shooting. Robinson does not dispute that some evidence related
to the shooting–such as the ballistics comparisons as well as
evidence about Anthony’s and Fletcher’s involvement with the
shooting and affiliation with Robinson–was relevant to prove a
connection between him and the gun used to shoot Robert C. He
disputes only the use of the video of Anthony and Fletcher
engaged in the shootout. Robinson contends the video was
inadmissible under section 352 and its admission violated his
23
right to due process. Robinson also argues briefly that the video
was improper character evidence under section 1101, subdivision
(a).
Preliminarily, the People contend Robinson forfeited these
challenges to the video by failing to object on these grounds to the
video in the trial court. A party cannot argue on appeal that
evidence was improperly admitted unless he or she objected to
the specific evidence on the same basis in the trial court, because
“[a] party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct.” (People v. Holford (2012)
203 Cal.App.4th 155, 169, italics omitted.)
The parties discussed sections 352 and 1101 in connection
with the prosecution’s motion in limine to admit evidence of the
February 2020 shooting and Robinson’s motion to exclude all
evidence of his prior misconduct. The trial court ruled that
evidence of the February 2020 shooting was admissible under
section 1101, subdivision (b), as circumstantial evidence of
Robinson’s access to the same firearm used to kill Robert C.
When the parties discussed the video evidence specifically during
trial, Robinson again raised section 352 as a basis for excluding
the video, albeit without substantive argument. The trial court
analyzed the video under section 352 and ruled it was admissible.
Because the trial court conducted the analyses that Robinson
now argues were error, the purpose of the forfeiture rule was
fulfilled and Robinson preserved his arguments under sections
352 and 1101.
24
As for Robinson’s constitutional argument, Robinson
essentially argues that the trial court’s error in admitting the
video under section 352 “had the additional legal consequence of
violating the Constitution.” (Masters, supra, 62 Cal.4th at
p. 1041, italics omitted.) As a result, Robinson has not forfeited
the argument. (Ibid.) However, our rejection of Robinson’s
argument under section 352 “necessarily leads to rejection of the
newly applied constitutional ‘gloss’ as well,” so we need not
discuss due process principles. (Ibid.)
“Under Evidence Code section 352, a trial court may
exclude otherwise relevant evidence when its probative value is
substantially outweighed by concerns of undue prejudice,
confusion, or consumption of time. ‘Evidence is substantially
more prejudicial than probative [citation] if, broadly stated, it
poses an intolerable “risk to the fairness of the proceedings or the
reliability of the outcome.” ’ ” (People v. Riggs (2008) 44 Cal.4th
248, 290.) “In applying this statute we evaluate the ‘risk of
“undue” prejudice, that is, “ ‘evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual
and which has very little effect on the issues,’ ” not the prejudice
“that naturally flows from relevant, highly probative evidence.” ’ ”
(People v. Salcido (2008) 44 Cal.4th 93, 148.) We review for
abuse of discretion a trial court’s admission of evidence, meaning
we consider whether the trial court’s exercise of discretion was
arbitrary, capricious, or patently absurd. (People v. Thomas
(2012) 53 Cal.4th 771, 806.)
25
Robinson contends that the video of Anthony and Fletcher
engaged in the shootout was highly prejudicial because it showed
a running gun battle on a residential street and suggested
Robinson was involved in gang activity. He argues the video had
no probative value that could outweigh this prejudice because the
video did nothing to tie Robinson to the firearms. The only
evidence necessary for that, according to Robinson, was the
testimony of a police officer who witnessed Anthony and Fletcher
take part in the shooting; the ballistics evidence regarding the
ammunition found in Robinson’s bedroom, the ammunition fired
in the February 2020 shooting, and the ammunition fired at
Robert C.; and evidence of Robinson’s association with Anthony
and Fletcher. The trial court disagreed, ruling that it was “a
fairly easy call” that the video was admissible. It found the
evidence probative because it showed the shooting and
corroborated the police officer’s description of it, and the trial
court found no factors supporting exclusion, such as undue
prejudice.
The trial court did not abuse its discretion. The ballistics
evidence, police officer testimony, and evidence of Robinson’s
association with Anthony and Fletcher, without more, might have
been minimally sufficient to tie Robinson to the gun that killed
Robert C. But the trial court was correct that the video evidence
corroborated the police officer’s testimony in all relevant respects,
and the trial court could reasonably allow the prosecution to offer
this corroboration. (People v. Watson (2008) 43 Cal.4th 652, 684
[evidence of issues not in dispute and repetitive evidence can be
26
admissible under § 352]; People v. Thomas, supra, 53 Cal.4th at
p. 806 [“Photographs and other graphic evidence are not rendered
‘irrelevant or inadmissible simply because they duplicate
testimony, depict uncontested facts, or trigger an offer to
stipulate’ ”].)
Moreover, the video is highly probative, establishing
Robinson’s direct involvement in the shootout in which his
admitted friends used the gun that killed Robert C. Combined
with the other videos of Robinson’s BMW driving up behind the
target of the shooting, speeding towards the scene, lingering for
two minutes, and then speeding away from the shootout, the
shootout video supports the inference that Robinson was involved
somehow in the shooting and therefore knew of Anthony’s and
Fletcher’s involvement as well. This in turn buttresses the
connection between Robinson and the gun that killed Robert C.
by making it more difficult for Robinson to claim ignorance about
Anthony’s or Fletcher’s possession and use of the gun.4
On the prejudice side of the scale, the shootout video was
not long, running about one and a half minutes long. The
The prosecutor contends the video of the shootout, in
4
combination with other testimony, would help show that
Robinson was the driver of the pickup truck who carried the
shooters away from the scene and then engaged in a high-speed
chase with the police. This alternative theory is less plausible for
various reasons, but whatever its merit, the shootout video does
not support it. The shootout video does not show Robinson
driving the pickup truck, so the only connection between
Robinson, the pickup truck, and the high-speed chase would come
from the testimony about the chase and the later recording of
Anthony and Robinson discussing Robinson driving fast.
27
prosecutor played a second video, but it was just a ten-second
zoomed-in clip from the first. The video of a daytime shooting on
a residential street demonstrating a callous disregard for
innocent bystanders’ lives could pose some risk of leading the
jury to form an emotional bias against Robinson. But the trial
court did not abuse its discretion in concluding that any such
prejudice was slight in comparison to the video’s probative force
on a highly relevant issue—Robinson’s connection to the murder
weapon. Indeed, most of the prejudice from the video was the
sort “that naturally flows from relevant, highly probative
evidence” ’ ” connecting Robinson to the gun. (People v. Salcido,
supra, 44 Cal.4th at p. 148.) The trial court’s balancing of the
risk of undue prejudice from these short videos against their
probative value and admission of the videos was not arbitrary,
capricious, or absurd.
Robinson’s gang-related arguments do not persuade us
otherwise. Neither the police nor the prosecutor mentioned the
possibility of gang involvement. In any event, the more sanitized
form of the evidence that Robinson concedes was relevant—
testimony that Anthony and Fletcher, who were Robinson’s
admitted friends, got out of a vehicle driven by a third person,
engaged in a daytime shootout of 10 to 15 shots with the
occupants of another vehicle, and then sped away—would raise
the same suspicions of gang-related activity as the video. The
video was more compelling, but the risk of it raising Robinson’s
affiliation with gangs in the minds of the jurors was not
28
substantially greater than that raised by the concededly relevant
non-video evidence.
Finally, in a variation on his argument under section 352,
Robinson contends under section 1101 that the video evidence
had no probative value on any issue in dispute and so could only
have been improper character evidence to prove his
predisposition or propensity to kill Richard C. Section 1101
“declares that ‘evidence of a person’s character or a trait of his or
her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a
specified occasion.’ (Evid. Code, § 1101, subd. (a).) But ‘[n]othing
in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident . . . )
other than his or her disposition to commit such an act.’ (Evid.
Code, § 1101, subd. (b); see also People v. Catlin [(2001)]
26 Cal.4th [81,] 145–146.) We review for abuse of discretion a
trial court’s ruling under section 1101.” (People v. Rogers (2006)
39 Cal.4th 826, 862.)
As we have already explained, ante, the video evidence had
significant probative value because it corroborated the police
officer’s description of the shooting and connected Robinson to the
gun that killed Robert C., and the court therefore did not err in
finding it admissible under section 1101, subdivision (b). The
video of the February 2020 shootout was also no more
29
inflammatory than the evidence of the charged crime, including
the videos of Robinson clutching at a weapon at his waist while
engaged in a determined manhunt for Robert C., on foot and by
car. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405 [evidence of
defendant’s uncharged acts had less potential for prejudice under
§ 352 where testimony describing them was no stronger and no
more inflammatory than testimony regarding charged offenses].)
It is therefore unlikely the jury convicted Robinson because of
what the February 2020 video evidence might have suggested
about his character rather than the strength of the evidence
against him. (See ibid.)
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
People v. Robinson (A163873)
Retired Presiding Justice of the Court of Appeal, First
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
30