People v. JacksonPeople v. Jackson
On appeal, Jackson raises several claims, including that his conviction for unlawfully taking or driving a vehicle under
The presumption of prejudice that arises with this type of instructional error was not overcome. Although there was strong evidence that Jackson unlawfully drove a vehicle, which could have supported the felony conviction without regard to the vehicle‘s value, we cannot conclude beyond a reasonable doubt that the jury unanimously relied on this theory. (See People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu).) Accordingly, we must reverse the conviction, and on remand the People will have the choice of either accepting the conviction‘s reduction to a misdemeanor or retrying the charge as a felony. We reject Jackson‘s remaining claims and otherwise affirm his convictions.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of September 12, 2016, an employee of the home-staging business carried four wicker chairs from the company‘s San Mateo warehouse to a delivery van parked nearby on the street. Realizing that he had forgotten his keys, he left the chairs on the sidewalk by the van and began walking back to the warehouse. He saw a man he later identified as Jackson approaching down the street, which prompted him to return to the van without retrieving his keys.1 The employee then saw Jackson putting the chairs in a Toyota Land Cruiser.
The employee approached Jackson and told him that the chairs belonged to the home-staging business “[a]nd that if he was taking them, he was stealing them.” Jackson “got upset” and turned toward the employee, giving him an “angry” look. At trial, the employee demonstrated the movements Jackson then made. As described for the record, to demonstrate these movements the employee “stood up, clenched his fists, raised them slightly above waist level or belt level and then brought them down, both down in a quick
The employee testified that Jackson‘s movements and curse made him feel “afraid,” and he confirmed that he was “afraid that [Jackson] was going to hurt [him] if [he] tried to get the chairs back.” The employee explained he wanted to avoid a fight with Jackson because he had an injured shoulder. Instead of trying to reclaim the chairs, the employee used his cell phone to take photographs of Jackson, which were admitted at trial, before returning to the warehouse to seek help.
The theft of the chairs and a description of the Land Cruiser, including its license-plate number, were quickly reported to the San Mateo police. The police contacted the Land Cruiser‘s registered owner, who lived in San Mateo. Until hearing from the police, the owner did not realize that the Land Cruiser was missing. Although the vehicle was normally parked down the street from the owner‘s home, the owner‘s adult daughter, who lived in San Francisco, often used the Land Cruiser when she was visiting. About a week earlier, she parked it at the San Mateo CalTrain station and left the keys by the front tire, as she had done before. She usually told her father when she parked the Land Cruiser there, but she forgot to tell him on this occasion.
Within hours of talking to the Land Cruiser‘s owner, the police located the vehicle parked in San Mateo. Jackson was sleeping inside a sleeping bag in the front passenger‘s seat. After verifying the vehicle was still reported stolen, the police removed Jackson and handcuffed him. The wicker chairs were in the trunk, and the Land Cruiser‘s keys and registration were in Jackson‘s pocket. The owner and his daughter testified that they did not give Jackson permission to use the vehicle.
Jackson was charged with felony counts of unlawfully taking or driving a vehicle, second degree robbery, and receiving a stolen vehicle.2 The jury convicted him of
The trial court found true allegations that Jackson had two prior serious-felony convictions, one in 1989 for robbery and one in 1997 for assault with a deadly weapon.3 After granting his Romero4 motion as to the strike findings under
II.
DISCUSSION
A. Jackson‘s Fair-cross-section Claim Is Meritless.
Jackson first contends that his convictions must be reversed because he was denied his federal and state constitutional right to a jury drawn from a fair cross-section of the community. He maintains that this right was violated because no African-Americans were in the jury panel that was summoned to his courtroom. As he has come nowhere near satisfying his burden of showing a prima facie violation of the fair-cross-section requirement, his claim fails.
1. Additional facts.
After jury selection began, Jackson filed a motion to dismiss the jury venire on the ground that it did not represent a fair cross-section of the community. In support, Jackson‘s trial counsel declared that recent U.S. Census Bureau data attached to the motion “revealed that 2.9% of the population of San Mateo County is estimated to be Black or African-American” and “the jury panel of 64 prospective jurors did not include
At a hearing on the motion, the trial court accepted the census data as evidence and agreed “that it does not appear that persons who were summoned to this particular department from the jury panel as a whole are African-American.” The court observed that Jackson had not, however, presented evidence of the composition “of the group which appeared for the entire summoned jury panel,” and his trial counsel admitted the defense had no evidence to offer on whether “there was a kink in the process somewhere in this particular case” of “culling DMV and voter registration records.” Concluding that Jackson had failed to show a prima facie violation of the fair-cross-section requirement, the court denied the motion.
Jackson filed a motion for a new trial that raised several claims, including a renewal of his challenge to the jury venire‘s composition. He argued that a jury with at least one African-American member would not have convicted him of the robbery count, claiming the employee perceived him as “threatening” based solely on his race. Relying on a San Mateo County summons form, Jackson also identified for the first time a purported systematic flaw in the county‘s jury-selection process: that “potential jurors may obtain exemptions from jury service and continuances of their service without the involvement of the Court or input from the parties.” The trial court rejected this claim, concluding that he still had not demonstrated “systematic exclusion” of the group in question.
2. Discussion.
Criminal defendants have a right to a jury “‘selected from a fair cross[-]section of the community‘” under both the federal and state Constitutions. (People v. Henriquez (2017) 4 Cal.5th 1, 18-19 (Henriquez); People v. Ramos (1997) 15 Cal.4th 1133, 1154.) “‘In order to establish a prima facie violation of the fair-cross-section requirement, [a] defendant must show (1) that the group alleged to be excluded is a “distinctive” group in
It is undisputed that Jackson satisfied the first prong of a prima facie violation, because African-Americans are a distinctive group. (Henriquez, supra, 4 Cal.5th at p. 19.) We agree with the Attorney General, however, that the trial court correctly concluded the other two prongs were not satisfied.
As to the second prong, which requires showing an underrepresentation of the distinctive group in the venire, it is insufficient for a defendant to “show[] a disparity on the particular jury panel assigned to the court in which his or her jury is to be selected. Underrepresentation on the defendant‘s particular panel is not relevant.” (People v. De Rosans (1994) 27 Cal.App.4th 611, 618, italics added.) Jackson never presented any evidence of the composition of the venire as a whole, resting only on the apparent absence of African-Americans on the panel in his courtroom. This deficiency alone defeats his claim.
As to the third prong, which requires showing a systematic exclusion of the group, “‘[a] defendant does not discharge [his or her] burden . . . merely by offering statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process.‘” (Henriquez, supra, 4 Cal.5th at p. 20.) Where, as here, the “‘county‘s jury selection criteria are neutral with respect to the distinctive group, the defendant must identify some aspect of the manner in which those criteria are applied that is not only the probable cause of the disparity but also constitutionally impermissible. . . . Speculation as to the source of the disparity is
On appeal, Jackson concedes that “under-representation in his . . . particular panel is not sufficient to demonstrate a constitutionally impermissible disparity” as required to meet the second prong of a prima facie violation. And although he reiterates that potential jurors can opt out of service without the involvement of the trial court or the parties, he still fails to explain how this feature systematically excludes African-Americans. Yet despite his admitted failure to establish a prima facie violation, he claims that the opt-out feature, combined with the fact that no African-Americans were brought into his courtroom, was “enough to shift the burden to the prosecution to demonstrate the lack of an actual disparity among the entire venire, and, if it could not do so, to demonstrate why compelling justification existed for the disparity.” He offers no authority for his position, and the case law flatly contradicts it. The trial court properly concluded that he failed to show a prima facie violation of the fair-cross-section requirement.
B. Jackson‘s Felony Conviction for Unlawfully Taking or Driving a Vehicle Cannot Stand.
As we have said, Jackson claims that his conviction for unlawfully taking or driving a vehicle under
1. Additional facts.
Count two of the information charged that, “[o]n or about September 12, 2016, . . . the crime of Driving Or Taking A Vehicle Without Consent in violation of [section 10851(a)], a Felony, was committed in that [Jackson] did drive a vehicle, [the Land Cruiser], without the consent of the owner, . . . and with the intent to deprive the owner of title and/or possession of the vehicle.” The verdict form ultimately returned on this count stated that Jackson was guilty “of the crime of Unlawfully Taking or Driving a Vehicle, in violation of [section 10851(a)], a felony, as alleged in Count 2 of the Information filed herein.” (Boldface omitted.)
The jury was instructed under CALCRIM No. 1820 that to prove Jackson guilty of violating section 10851(a), the prosecution was required to establish that “1. The defendant took or drove someone else‘s vehicle without the owner‘s consent; [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.” No unanimity instruction was given.
In closing argument, the prosecutor concentrated on the driving theory of guilt for the section 10851(a) charge, arguing that even though the employee had not explicitly testified that Jackson drove the Land Cruiser, the only reasonable inference was that Jackson drove the vehicle away after stealing the chairs. But the prosecutor also referred in his closing statement to a separate theory of guilt, which he sometimes referred to as “taking” and other times referred to as “possessing” the vehicle.
In explaining that Jackson could not “be found guilty of both” the section 10851(a) charge and the charge of receiving a stolen vehicle under
And in addressing the elements of the section 10851(a) charge, the prosecutor stated, “Count 2, again this is CALCRIM [No.] 1820. It‘s the unlawful taking or driving—there is that word again, ‘or‘—of a vehicle. And then there is the Vehicle Code section which relates to what you see on the verdict form. [¶] So defendant took or drove the . . . vehicle without consent, and when he took it, he intended to deprive [the owner] of possession or ownership for any period of time. So it‘s not like he was just taking it briefly and you are going to give it back or something. Has to be you are going to actually take it and not give it back.”
In urging that circumstantial evidence was sufficient to support a conviction, the prosecutor also said, “Common sense tells you that of course [Jackson] had possession of the vehicle and of course he also drove it. Remember, it has to be one or the other. [¶] Clearly, he possessed it. . . . [¶] . . . [¶] . . . It‘s [also] pretty clear that he drove the car away. That‘s one of the . . . ways to prove it. The other way is the possession of the stolen car.”
Finally, in addressing the section 496d charge, the prosecutor said, “Remember I said before you can‘t be guilty of two different crimes if you steal something, take it and receive it. If for some reason you say, hey, [the prosecutor] did not prove Count 2 that [Jackson] either possessed or drove the stolen vehicle or that he didn‘t know it was stolen, if you think that‘s lacking, then you would sign that not guilty verdict form for Count 2 and then you move on to Count 3.”
2. Discussion.
A violation of section 10851(a) is a “wobbler” offense that may be punished as either a misdemeanor or a felony. (Page, supra, 3 Cal.5th at p. 1181.) Under that provision, “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle . . ., is guilty of a
Under Proposition 47 (the “Safe Neighborhoods and Schools Act“), which went into effect before Jackson committed the crime here, “‘an offender who obtains a [vehicle] valued at [$950 or less] by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.‘” (Page, supra, 3 Cal.5th at p. 1183;
We begin by agreeing with the parties that instructional error occurred. This error was eminently understandable since Page was not decided until several months after Jackson‘s trial. Still, if a felony conviction under section 10851(a) is “predicated on vehicle theft,” the prosecution is “required to prove as an element of the crime that the [vehicle taken] was worth more than $950.” (Gutierrez, supra, 20 Cal.App.5th at pp. 855-856; accord People v. Bussey (2018) 24 Cal.App.5th 1056, 1061-1062 (Bussey).) Here, the challenged instruction failed to include this directive and instead “allowed the
We therefore turn to consider whether the error was harmless. “When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground.” (Chiu, supra, 59 Cal.4th at p. 167.) Unlike with other types of instructional error, prejudice is presumed with this type of error. “[T]he presumption is that the error affected the judgment: ’ “Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law . . . . When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.“’ ” (In re Martinez (2017) 3 Cal.5th 1216, 1224.)
This presumption of prejudice is rebutted only if the record permits the conclusion “beyond a reasonable doubt that the jury based its verdict on [a] legally valid theory.”8 (Chiu, supra, 59 Cal.4th at p. 167; see In re Martinez, supra, 3 Cal.5th at p. 1224.) Sometimes, “‘other aspects of the verdict . . . [will] leave no reasonable doubt that the
The presumption of prejudice in this case has not been overcome. The Attorney General claims “it is clear beyond a reasonable doubt” that the jury convicted Jackson on a “valid posttheft driving theory” because “[t]he information showed a clear election by the prosecution to proceed on the driving theory.” We are not convinced. True, the information charged Jackson with driving only, and the verdict form stated he was found guilty of the crime as alleged in the information. But CALCRIM No. 1820 allowed the jury to convict on either a taking or driving theory, and the prosecutor did not elect the driving theory in closing argument. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1539 [“If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction“].) Rather, the prosecutor mentioned both a taking theory and a “possessing” theory several times, the latter perhaps referring to the principle that “[m]ere possession of a stolen car under suspicious circumstances is sufficient to sustain a conviction of unlawful taking.”9 (People v. Clifton (1985) 171 Cal.App.3d 195, 200.) Given that both CALCRIM No. 1820 and the prosecutor‘s arguments gave the jury the option of convicting Jackson
The omission of a unanimity instruction raises additional doubts about the verdict‘s basis. A unanimity instruction is required where “‘one criminal act is charged, but the evidence tends to show the commission of more than one such act‘” and the prosecution does not “’ “elect the specific act relied upon to prove the charge.“’ ” (People v. Brown (2017) 11 Cal.App.5th 332, 341.) Although Jackson does not argue for reversal based on the omission of such an instruction, the prosecution‘s failure to clearly elect between taking and driving leaves the possibility that the jurors did not agree on the same act in returning the conviction. Thus, we cannot find the instructional error harmless unless we can conclude beyond a reasonable doubt that not a single juror relied on taking instead of driving to convict Jackson.10 (See People v. Melhado, supra, 60 Cal.App.4th at p. 1539.) We cannot so conclude.
The Attorney General argues that a taking of the vehicle was “unsupported by any evidence,” but we disagree. While the evidence of driving may have been stronger than the evidence of taking, substantial evidence was introduced to support a conviction for stealing the Land Cruiser, based on Jackson‘s possession of it under suspicious circumstances shortly after it was stolen. (See People v. Clifton, supra, 171 Cal.App.3d at pp. 199-200; see also People v. Wissenfeld (1951) 36 Cal.2d 758, 763-764 [sufficient
We agree with the Attorney General that the appropriate remedy is to remand for the People to elect whether to retry Jackson on a felony charge or accept the conviction‘s reduction to a misdemeanor. Therefore, following Bussey and Gutierrez, we will reverse the conviction, vacate the sentence, and remand for the People to make such an election. (Bussey, supra, 24 Cal.App.5th at pp. 1062, 1064; Gutierrez, supra, 20 Cal.App.5th at pp. 858, 863.)
C. Substantial Evidence Supports the Robbery Conviction.
Jackson contends that insufficient evidence supports the robbery conviction because the record fails to establish that he “acted in a manner reasonably calculated to produce fear in [the employee]” to accomplish the theft of the chairs. We are not persuaded.
To evaluate this claim, “‘we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict—i.e., evidence that is reasonable,
Robbery is defined as “the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his [or her] will, accomplished by means of force or fear.” (
There is no evidence that Jackson used force to effectuate the robbery, so we focus on the evidence of fear. As relevant here, fear is defined as that “of an unlawful injury to the person or property of the person robbed.” (
Because robbery requires “the specific intent to deprive the victim of the property permanently,” “‘the act of . . . intimidation by which the taking is accomplished . . . must
Jackson argues that although the employee “testified that he was afraid, he never stated he was afraid because of [Jackson‘s] actions.” The record belies this contention. The employee‘s testimony clearly indicated that (1) Jackson‘s movements and cursing scared him, (2) he was afraid Jackson would hurt him if he tried to reclaim the chairs, and (3) he did not try to reclaim the chairs because of this fear:
[PROSECUTOR]: After you told [Jackson] that the chairs belonged to you and then [Jackson] reacted by cursing and puffing [his] chest out, how did that make you feel?
[EMPLOYEE]: I was afraid.
[PROSECUTOR]: Afraid of what?
[EMPLOYEE]: It was over me because I‘m injured and I couldn‘t do very much. That‘s why I went quickly to go get help.
[PROSECUTOR]: When [Jackson] reacted that way, did you think that he was going to do something if you tried to get the chairs back?
[EMPLOYEE]: He could have, yes.
[PROSECUTOR]: My question is you just said you were afraid?
[EMPLOYEE]: Yes. I was afraid.
[PROSECUTOR]: Were you afraid that [Jackson] was going to hurt you if you tried to get the chairs back?
[EMPLOYEE]: Yes.
. . .
[PROSECUTOR]: If [Jackson] hadn‘t prevented you from getting the
[EMPLOYEE]: Take them to . . . work.
This testimony was more than sufficient evidence that Jackson‘s actions caused the employee‘s fear, which in turn enabled Jackson‘s asportation of the chairs.
Jackson also claims there was insufficient evidence he was motivated by an intent to steal when he “muttered and gestured” at the employee. He suggests his actions were not intimidating enough for the jury to conclude that he “acted in a manner reasonably calculated to produce fear,” contrasting his actions to those of defendants in other cases who made a “demand” or “implied threat” under “intimidating circumstances.” (E.g., People v. Morehead (2011) 191 Cal.App.4th 765, 775 [demands for money from victims contained “implicit threat of harm“]; People v. Bordelon, supra, 162 Cal.App.4th at p. 1320 [defendant pushed customer and made “escalating demands for money” during bank robbery]; People v. Davison (1995) 32 Cal.App.4th 206, 209-210 [defendant approached victim at ATM and told her to “’ “stand back“’ “]; People v. Hays (1983) 147 Cal.App.3d 534, 538-539, 541 [defendant, armed with rifle, entered victim‘s office through ceiling].) Even if these defendants’ actions were more intimidating than Jackson‘s, it does not follow that Jackson‘s actions were therefore insufficient to prove an intent to steal. In response to the employee‘s verbal challenge, Jackson turned toward the employee, looked at him angrily, clenched his fists, and puffed out his chest. The jury could have reasonably inferred that Jackson did so to discourage the employee from interrupting his stealing of the chairs. Sufficient evidence supports the robbery conviction.
D. The Trial Court Did Not Violate Jackson‘s Right to Self-representation.
Finally, Jackson claims that the trial court erred by denying his request under Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself, entitling him to a new hearing on his motion for a new trial.12 We are not persuaded.
At the sentencing hearing, the trial court first heard arguments on Jackson‘s motion for a new trial. One of the claims his trial counsel discussed involved a supposed discrepancy between the photographs taken by the employee, which showed the Land Cruiser‘s hood was open, and the employee‘s testimony, in which he did not mention that the hood was open. As the court began to rule, the following exchange occurred:
[JACKSON]: Your Honor, he is fired. He is fired. Get it on the record. He is fired. [¶] . . . [¶] He is refusing to bring up the issue on these pictures.
[COUNSEL]: I think we may have a brief Marsden13 in light of—
[JACKSON]: He is fired. Before you make any rulings, he is fired. I can do that.
[COUNSEL]: I think it will go very quickly.
THE COURT: I will ask—I will take Mr. Jackson‘s comments in court as his request for a Marsden hearing.
[JACKSON]: Yes, ma‘am.
The trial court then held a Marsden hearing, at which Jackson expressed his belief that the photographs entitled him to a new trial for a different reason: the Giants jacket in the photographs was different than the one he was wearing when arrested, raising an identity issue. After the court interrupted him, he indicated he “want[ed] to go pro per” and wanted to file a motion to disqualify the judge. Reminding Jackson that it was a Marsden hearing, the court directed him to air his complaints about counsel. Jackson did so, and the court then denied the Marsden motion.
After the parties reconvened, Jackson‘s trial counsel said he understood Jackson to be making “a Faretta pro per request” and a motion to disqualify the judge. The trial court denied both motions. As to the Faretta request, the court explained that “a
2. Discussion.
Criminal defendants have a federal constitutional right to represent themselves, including at sentencing. (Faretta, supra, 422 U.S. at p. 807; People v. Doolin (2009) 45 Cal.4th 390, 453.) “The right to self-representation is absolute, but only if a request to do so is knowingly and voluntarily made” and timely asserted. (Doolin, at p. 453.) “Otherwise, requests for self-representation are addressed to the trial court‘s sound discretion.” (Ibid.) Jackson concedes that his request for self-representation was untimely. (See People v. Miller (2007) 153 Cal.App.4th 1015, 1024 [request must be “made within a reasonable time prior to commencement of the sentencing hearing“].) We therefore review the trial court‘s ruling for an abuse of discretion. (People v. Smith (2018) 4 Cal.5th 1134, 1182.)
The timeliness requirement is meant to ensure that a defendant does not “misuse the Faretta mandate as a means to unjustifiably delay a scheduled [hearing] or to obstruct the orderly administration of justice.” (People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5 (Windham).) To this end, relevant factors in evaluating an untimely request for self-representation include “the quality of counsel‘s representation of the defendant, the defendant‘s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Id. at p. 128.)
Here, several of the Windham factors strongly supported denial of the request for self-representation. In denying the Marsden motion, the trial court found that Jackson‘s trial counsel had acted “well within the range of professional responsibility for an attorney.” In addition, Jackson asked to represent himself only after making that
In addition, over three months passed between the verdict and the hearing at issue, yet Jackson did not bring up his dissatisfaction with his representation until after the motion for a new trial had been argued and the trial court was on the verge of ruling on it. The court could have reasonably construed the Faretta request, coming as it did in conjunction with the Marsden motion and motion to disqualify the judge, as a last-ditch attempt to avoid denial of the new-trial motion.
Jackson argues that the trial court‘s “failure to inquire as to [his] readiness to proceed with the hearing preclud[ed] a finding that his request for self-representation was made for purposes of delay or to obstruct the orderly administration of justice.” We disagree. Even if Jackson had said he was ready to proceed, the trial court would not have been compelled to grant the Faretta request. Although such readiness may have weighed in favor of granting the request, he provides no authority suggesting this factor is dispositive. Similarly, he points to no cases suggesting that a court is required to thoroughly consider all the Windham factors before making a determination. To the contrary, reviewing courts have upheld denials of untimely Faretta requests so long as two Windham factors strongly supported the rulings. (E.g., People v. Smith, supra, 4 Cal.5th at p. 1182; People v. Mayfield (1997) 14 Cal.4th 668, 810.) And even if granting Jackson‘s request would not have required a continuance, the court could still have reasonably concluded that allowing him to represent himself would be disruptive, based on his outbursts during the hearing. (See People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398 [untimely Faretta request properly denied based on defendant‘s previous behavior in court].) There was no abuse of discretion.
Moreover, Jackson fails to demonstrate a reasonable probability that he would have achieved a more favorable result had he been allowed to represent himself. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Rogers (1995) 37 Cal.App.4th 1053, 1058 [erroneous denial of untimely Faretta request assessed for prejudice under Watson].) He claims that, “acting as his own zealous advocate, [he] would have certainly been successful in getting the [trial] court to take a closer look at the disputed photographs and render a more considered ruling,” and the additional “consideration may have then resulted in a favorable ruling, or an even greater reduction in sentence.” But the basis for a new trial that he wished to raise was unlikely to succeed, as the court indicated during the Marsden hearing by expressing its belief that the Giants jacket in the photograph was “similar, if not identical, to the jacket that [Jackson] was wearing when he was arrested.” Nor does Jackson explain how the court‘s closer consideration of the motion for a new trial would have resulted in a more favorable sentence. Thus, even if there had been an error, it was harmless.
III.
DISPOSITION
The conviction for unlawful taking or driving of a vehicle under
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Humes, P.J.
We concur:
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Dondero, J.
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Banke, J.