P. v. Cabrera
Filed 1/29/14 P. v. Cabrera CA2/6
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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN
CABRERA,
Defendant and Appellant.
2d Crim. No. B244583
(Super. Ct. No. BA1394770)
(Los Angeles County)
Jonathan
Cabrera appeals his conviction by jury of first degree residential
burglary. (Pen. Code, § 459.)
strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), a
prior serious felony conviction (§ 667, subd. (a)), and a prior prison term
enhancement (§667.5, subd. (b)). The
trial court sentenced him to 13 years state prison. Appellant contends that the trial court erred
in denying his motion for new trial
and abused its discretion in excluding evidence that his twin brother was convicted
of burglary in 2009. We affirm.
Facts
On the
morning of March
2, 2012, Louis Hunt awoke to someone
banging on the front and back doors of his apartment. Hunt saw appellant open the bedroom door and
enter. Hunt looked appellant in the face
and said "fuck you." Appellant
and a second man fled the apartment.
Hunt
gave chase but lost the men. He called
911 and described the burglar as a black male in his mid twenties with long
Johnson responded to the call and found a red and black checked scarf on the
ground outside the door. A laptop, an iPod,
a cell phone, and a briefcase were missing from a roommate's bedroom. The apartment surveillance video showed a
young black man running down the apartment alley carrying the stolen property. The man matched Hunt's description of the
burglar.
Around midnight on March
5, 2012 (three days after the burglary),
Hunt again heard banging on the front door.
Looking through the peephole, Hunt saw appellant and a second man
outside the door. Appellant looked
towards the door and lifted a bandanna over his mouth. Hunt called 911 and said that the burglar was
back and "he's got long, curly black hair in a ponytail."
Los
Angeles Police Department Officers Alex Franco and Juan Rinco responded to the
call and detained appellant and two other men near the apartment. Hunt identified appellant as the burglar who
entered his bedroom three days earlier.
Appellant
defended on the theory that his twin brother, Justin Cabrera, committed the
burglary. Apartment video surveillance
photos showed that the burglar had a tattoo on his left forearm. Appellant did not have a tattoo on his forearm
but his twin brother did. Appellant's
sister, Christina Cabrera, identified Facebook photos of Justin with an arm
tattoo.
New Trial
Motion
Appellant
claims that the trial court erred in denying his
photos of the surveillance video depicting the burglar's tattoo. Counsel
declared that appellant's "family gave me vague information concerning
Justin Cabrera" and did not locate Justin until after the trial. Counsel photographed Justin's forearm,
attached enhanced video surveillance photos to the motion, and declared: "It still appears to me that the
person depicted in the surveillance video is not the defendant, but is his
brother JUSTIN CABRERA." (Italics
added.) Denying the motion for new trial,
the trial court found that the enhanced photos did not "add anything new
to this case. I don't think its newly
discovered. . . . I just don't think the
pictures show anything of substance."
We
review for abuse of discretion. (
1067, 1159.) To obtain a new trial based
on newly discovered evidence, the defendant must show that (1) the evidence,
not merely its materiality, is newly discovered, (2) the evidence is not
cumulative to that already presented, (3) the evidence would render a different
result probable on a retrial of the case, and (4) defendant could not with
reasonable diligence have discovered and produced the evidence at trial. (People v. Delgado (1993) 5 Cal.4th
312, 328.)
Appellant
knew about the tattoo but waited until the jury returned its verdict before
obtaining an order to photograph Justin and prepare the enhanced surveillance
video photos. The enhanced photos were
not newly discovered evidence. At trial,
defense counsel argued that the surveillance video depicted Justin, who unlike
appellant, had a "distinctive" tattoo on his left arm. In rebuttal, the prosecution argued that the
burglar in the surveillance video had a distinctive mark on his nose as does
appellant. Justin did not have a mark on
his nose.
The
trial court concluded that enhanced photos of the surveillance video were
cumulative and not newly discovered evidence.
We defer to the trial court's ruling because its familiarity with the
facts and circumstances of the case places it in a far better position that a
reviewing court to determine the effect and value of the proffered
evidence. (People v. Raquel (1954)
125 Cal.App.2d 384, 385.) " ' "The determination of a motion
for a new trial rests so completely
within the [trial] court's discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly appears." '
[Citations.]" (People v. Delgado, supra, 5 Cal.4th at p. 328.) No abuse of discretion occurred here.
Third
Party Culpability Evidence
Appellant argues that the trial court erred in excluding evidence
that his twin brother committed a burglary in 2009 using the same modus
operandi. Absent direct or
circumstantial evidence that Justin burglarized Hunt's apartment, the prior
conviction evidence is not admissible. (People
v. Alcala (1992) 4 Cal.4th 742, 792;
People v. Page (2008) 44 Cal.4th 1, 38.)
Evidence of Justin's motive or opportunity to commit the crime,
"without more, will not suffice to raise a reasonable doubt about a
defendant's guilt; there must be direct or circumstantial evidence linking
[Justin] to the actual perpetration of the crime." (People v. Hall
(1986) 41 Cal.3d 826, 833.)
Appellant claims that Justin's 2009 burglary
involved the same modus operandi (i.e., banging on doors, testing door knobs)
but it was not unusual or distinctive.
Officer Johnson testified that burglars commonly knock on doors and test
door knobs to see if anyone is home before entering a residence. There was no evidence that Justin was even
near Hunt's apartment when the burglary was committed on March 2, 2012. The trial court concluded
that evidence of Justin's 2009 burglary conviction lacked probative value and
would confuse the jury. (Evid. Code, §
352.)
Appellant
argues that Evidence Code section 352 is subordinate to his due process right
to present a full defense. A defendant,
however, has no due process right to present
644-645].) The application of
ordinary rules of evidence, such as Evidence Code section 352 to exclude
speculative or irrelevant evidence, does not violate a defendant's due process
right to present a defense or right to a fair trial. (People v. Page, supra, 44 Cal.4th at
pp. 36-37; People v. Cunningham (2001) 25 Cal.4th 926, 998-999; People
v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Assuming,
arguendo, that the trial court erred in excluding evidence of Justin's prior
burglary conviction, any error was harmless. (People v. Watson (1956) 46
Cal.2d 818, 836.) Hunt confronted the
burglar in his bedroom, looked him directly in the face for two or three
seconds and thus, his distinctive nose and chased the burglar out of the
apartment. Hunt's description of the
burglar matched appellant as did the surveillance photos. Three days later, appellant returned to the
apartment with a bandana on his face and banged on Hunt's door to see if anyone
was home. Hunt called the police, said
the burglar was back, and identified appellant shortly after he was arrested outside
the apartment.
Ineffective
Assistance of Counsel
Appellant
argues that trial counsel was deficient in not producing the enhanced video surveillance
photos at trial. He also argues that the
enhanced photos are "newly discovered" evidence. Assuming that the enhanced photos could not
have been reasonably discovered before the jury returned its verdict, trial
counsel could not be "ineffective" for doing the impossible.
To
prevail on an ineffective assistance of counsel claim, appellant must show
deficient representation and resulting prejudice. (Strickland v. Washington (1984) 466
U.S. 668, 687 [80 L.Ed.2d 674, 693]; People v. Ledesma (1987) 43 Cal.3d
171, 217-218.) Appellant "must
prove prejudice that is a '"demonstrable reality," not simply
speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th
1223, 1241.)
It took
no leap of logic for the jury to find that appellant burglarized Hunt's
apartment on May
2, 2012, and returned three days later with
a bandanna on his face to finish the job.
Appellant claimed it was a case of mistaken identity but presented no
alibi evidence. "Metaphorically, an
actual innocence claim based on newly discovered evidence seeks a second bite
at the apple, but unlike an ineffective assistance of counsel claim, . . . it
does not contend the first bite was rotten." (In re Lawley (2006) 42 Cal.4th 1231,
1241.)
The
record shows that appellant received a fair trial and was not prejudiced by the
trial court's rulings or trial counsel's performance. None of the purported errors, either
singularly or cumulatively, denied appellant a fair trial. (People v. Jenkins (2000) 22 Cal.4th
900, 1056.) A criminal defendant is
entitled to a fair trial, not a perfect one.
(People v. Cain (1995) 10 Cal.4th 1, 82.)
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
Barbara R.
Johnson, Judge
Superior Court County of Los Angeles
______________________________
David
W. Scopp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Tasha G. Timbadia and Eric F
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are
to the Penal Code unless otherwise stated.
