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Prosecutor Misconduct and More... Remand

California v. Clark, Court: California Courts of Appeal, Docket: C089046 (Third Appellate District), Opinion Date: April 6, 2021. Defendants Gerquan Clark and Anthony Brown robbed three men at gunpoint. Defendants were tracked to a local retail store using a phone app on one of the cell phones they had stolen. At a showup, one of the victims identified both defendants, and another identified Clark. At trial, both victims identified Clark as the man who pointed the gun at them, and one victim identified Brown as the other man. Police never found the gun. At trial, defendants asserted the prosecution had not proven beyond a reasonable doubt that the object used during the robbery was a real gun. Nonetheless, a jury found defendants guilty of three counts of robbery in the second degree with firearm enhancements. Additionally, the jury found each defendant guilty of possession of a firearm by a felon. The trial court sentenced Clark to an aggregate term of 21 years and Brown to an aggregate term of 12 years. On appeal, defendants claimed their felon in possession of a firearm convictions and the firearm enhancements had to be reversed because: (1) the trial court erred in admitting evidence of Clark’s prior uncharged act involving possession of a firearm pursuant to Evidence Code section 1101 (b); and (2) the prosecutor committed misconduct in urging the jurors to use that prior uncharged act as propensity evidence. Brown separately claimed: (3) the prosecutor committed misconduct in vouching for the prosecution and disparaging defense counsel; and (4) that cumulative error required reversal. The Court of Appeal reversed the convictions of felon in possession of a firearm as to both defendants and all firearm enhancements, finding the trial court erred in admitting evidence of Clark’s prior uncharged act pursuant to Evidence Code section 1101 (b), and the evidentiary error was prejudicial as to the felon in possession of a firearm count and the firearm enhancements. Because the possession conviction and firearms enhancements were reversed, the Court did not reach defendant’s allegations the prosecutor committed misconduct. As for Brown’s separate prosecutorial misconduct claim, the Court concluded the prosecutor committed misconduct in vouching for the prosecution and disparaging defense counsel, but these instances of misconduct did not prejudice Brown. Brown’s cumulative error contention was meritless. Finally, because of Senate Bill 136 (Stats. 2019, ch. 590, sec. 1), the Court struck Brown’s prior prison term enhancement and remanded for resentencing as requested by the parties.

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