P. v. Calkins
Filed 7/11/12 P. v. Calkins CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CHRISTOPHER WILLIAM CALKINS,
Defendant
and Appellant.
E053616
(Super.Ct.No.
FSB903647)
APPEAL
from the Superior Court
of
Bernardino County. Kyle
S. Brodie, Judge. Affirmed.
John
L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Scott
C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
perpetrated three crimes that involved strikingly similar modus operandi. In each of these offenses, the victims
believed they were going to a location to have a date with a girl they met on
the Internet. When they arrived,
defendant approached the victims armed with a shotgun. During one heist, defendant absconded with
the victim’s wallet and cellular telephone; in another defendant shot at the
victim when he tried to drive away; and in another incident, the shotgun
discharged when the victim and defendant struggled over it.
Defendant
was convicted of robbery, attempted
robbery, assault with a deadly weapon and firearm, and shooting at an occupied
vehicle.
Defendant
claims on appeal that the evidence was insufficient to support three of his
convictions because the evidence consisted only of circumstantial evidence of
similar modus operandi.
We
affirm the judgment.
I
PROCEDURAL
BACKGROUND
In
a second trial,
title="">[1] defendant was found guilty by a jury of two
counts of second degree robbery (Pen. Code, § 211)
second degree robbery (§§ 664/211) (count 2);
(count 3); assault with a firearm (§ 245, subd. (a)(2)) (counts 4 & 6); and
assault with a deadly weapon, to wit, broken glass (§ 245, subd. (a)(1)) (count
7). It was also found true as to counts
1, 2, and 5 that defendant personally used a firearm within the meaning of
section 12022.53, subdivision (b); that he personally and intentionally
discharged a shotgun within the meaning of section 12022.53, subdivision (c) on
count 2; that he personally caused great bodily injury on counts 2, 3, 4, 5, 6,
and 7 (§ 12022.7, subd. (a)); and that he personally used a firearm on counts 4
and 6 (§ 12022.5, subd. (a)).
Defendant
was sentenced to state prison for a
total term of 34 years 8 months.
II
FACTUAL
BACKGROUND
A. People’s
Case-in-Chief
1.
Juan
Silva met Christina Aquino on the Internet.
Prior to July 26, 2009,
he and Christina had “spen[t] time†together.
On July 26, Christina set up another date and told Silva to pick her up
at 2505 Kendall Way in San
Bernardino.
Silva went to the location around 11:00
p.m. He texted Christina
that he had arrived and got out of his car.
As soon as Silva got out of his car, he was approached by defendant, who
was dressed in baggy jeans and a dark hooded sweater or “hoodie.†Silva could not tell if defendant had long
hair pulled back in a ponytail because the hood covered his hair. Despite the hood of the sweater being over
defendant’s head, Silva could see his face.
Defendant
put a shotgun in Silva’s face. The
shotgun touched Silva’s right cheek.
Defendant demanded that Silva give him his wallet and cellular telephone. Silva also gave defendant a portable gaming
device that he had in his car.
Defendant
then told Silva to get in his car and drive away. Silva complied. He was afraid and did not know where a police
station was located in San Bernardino. He drove home to Victorville and then called
the police. Silva reported the incident
over the phone to someone at the San Bernardino Police Department and described
his assailant as a Hispanic male, about 23 years of age and 210 pounds. He thought the assailant had a shaved head.
San
Bernardino Police Sergeant Brian Harris prepared several six-pack photographic
lineups that were shown to Silva. Silva
was admonished prior to viewing them that he did not have to choose someone. He chose defendant’s photograph. He also identified Christina from a
photographic lineup.
name="_ftnref3" title="">[3] After he was robbed, Silva never heard from
Christina again. Even that night,
Christina never texted him to find out what had happened to him. Silva identified a shotgun in court as the
one that was put in his face (exhibit 35).
2.
Ricardo
Carrillo had met a woman by the name of Christina on an Internet site prior to August 8, 2009. On August
8, 2009, Christina told Carrillo to come to 2505
Kendall Way in San Bernardino
so they could barbecue and watch movies.
When Carrillo arrived around 10:30 p.m.,
he called Christina and told her that he was there. She told him that she was not fully dressed
and to wait outside. Carrillo sat in his
truck. While he was waiting, a man came
to the driver’s side window of the truck and banged on it with a shotgun. He told Carrillo (in Spanish) to roll down
the window.
The
man wore a black sweater with a hood on it that was pulled up over his
head. Rather than roll down his window,
Carrillo crouched down in his seat and began driving away. As Carrillo drove, the man fired two shots at
the truck. One of the bullets hit the
driver’s side windshield. Another bullet
hit the driver’s side door. Carrillo
drove off quickly and stopped at a nearby store.
Carrillo
called the police on his way to the store, and they were waiting for him at the
store when he arrived. Carrillo was
bleeding from his neck and had glass “all over [his] side.†A shotgun cap was found inside Carrillo’s
truck. Carrillo was taken to the
hospital, where he was treated for numerous cuts from the glass. At the time of trial, Carrillo still had
glass fragments and shotgun pellets in his skin. He never again heard from Christina. He described the shooter as a Hispanic male
but only because he spoke Spanish to him.
It was too dark to see his face.
Carrillo
first stated that exhibit 35 was not the shotgun used to bang on his
window. Carrillo explained that the
bottom part of the shotgun, the grip, was different. Carrillo admitted that he was assuming the
grip on the shotgun he saw that night was wood, but he was not absolutely
sure. Carrillo also indicated that the
shotgun grip that was at his window was more “triangular.†He could not accurately see the color of the
shotgun through his tinted windows.
Two
shotgun shells were found at the Kendall Way location. The shotgun shells were Federal brand
ammunition.
3.
Richard
Cordova met a girl named Christina in an Internet chat room. Cordova and Christina agreed to meet. Christina first sent Cordova a text message
to meet her at a residential address in San Bernardino but then changed the
address to an apartment complex in San Bernardino. Christina set up a meeting time for 10:00
p.m., which Cordova thought was late for a first date. Christina had not given him a specific
apartment number to go to.
When
Cordova arrived at the apartment complex, he texted Christina. She directed him to park in a red zone in
front of the apartment; he ended up parking on a side street near the
complex. Cordova sat in his car and
drank two or three beers. Cordova then
walked to the front gate of the apartment complex. He carried a backpack, a 12-pack of beer, and
two cellular telephones. When he walked
to the gate, defendant was near the gate wearing black sweats and a black
hooded sweatshirt.
Cordova
heard the cocking of a shotgun, and defendant grabbed him by his shirt. Defendant grabbed the backpack and took the
cellular telephone Cordova had clipped to his waist and Cordova’s keys and
threw them to the ground. Defendant then
asked for Cordova’s wallet. Cordova
feared for his life and grabbed for the shotgun. Cordova pulled on the trigger to try to jam
the shotgun with a shell but it did not work.
He then pulled on the trigger two times in order to try to get
help. He was able to wrestle the shotgun
to the ground and lay on top of it.
Defendant
grabbed the 12-pack of beer and smashed them on the ground. He “pushed†broken glass into Cordova’s
head. He also hit Cordova over the head
with a beer bottle. He then punched
Cordova on both sides of his face. Cordova
was able to get up off the ground. He
fell again and cut his forearm on the glass from the broken bottles, requiring
seven staples. In addition, he cut his
shin, which required three staples, and he had to have seven staples for the
cut on his head.
At
some point, defendant ran off. Cordova
ran toward the apartment complex with the shotgun. Security at the apartment complex came to
help him.
When
the police arrived, Cordova was in pain and disoriented. He made a brief statement to officers at the
apartment complex. He described
defendant as Hispanic, around 21 years of age, approximately five feet seven inches
tall with short dark hair. Cordova was
kept over night at the hospital and was taking painkillers. At the hospital, he described defendant as 21
to 25 years of age, five feet seven to five feet nine inches tall, weighing
between 190 and 200 pounds. Christina
never contacted Cordova again.
Two
shotgun shells and an end cap from the shotgun shell were found at the scene
where Cordova and defendant struggled over the shotgun. The shotgun shells were Federal brand. There was broken glass in the area.
Cordova
was shown several photographic lineups.
On a final lineup shown to him, he identified defendant. In previous photographic lineups, he was
unable to identify anyone. Cordova
indicated that the night of the incident, defendant’s hair was shorter than in
the photographs. Cordova was taking
Vicodin for pain at the time of the lineups.
He identified exhibit 35 as the shotgun he took from defendant.
4. Further
investigation
The
shotgun shells found at the Carrillo and Cordova scenes were compared. They all were Federal brand ammunition. They all had identical markings and were the
same type of ammunition.
The
serial number on the recovered shotgun had been removed. It was a 12-gauge shotgun, and all of the
ammunition recovered was for a 12-gauge shotgun. The gun was never test fired to match the
shotgun shells.
Detective
Harris contacted Nancy Ranyak-Henry on October 14, 2009. Ranyak-Henry advised him that she let
defendant stay with her in May 2009 because he needed a place to live. She told Detective Harris that a woman named
Christina Aquino would come and stay with defendant at the house. Ranyak-Henry eventually asked defendant to
leave. She told Detective Harris that
approximately one week prior to the detective contacting her, defendant had
called her. He advised her that he had
been arrested for committing multiple robberies and wanted her to be his
alibi. Defendant told her he needed an
alibi for July 26, August 8, and August 10.
She told defendant she did not want to be involved and wanted nothing to
do with him. She also told Detective
Harris that defendant had called her in June 2009 asking if she wanted to buy a
shotgun.
At
trial, Ranyak-Henry denied she ever spoke with Detective Harris. She denied that defendant ever asked her to
be his alibi or asked her to buy a shotgun from him. She claimed to have brain damage. She denied knowing Christina Aquino. Detective Harris entered the courtroom, and
she denied she had ever seen him before.
Ranyak-Henry’s
testimony at a prior hearing was read to the jury. She recalled talking to an officer in October
2009 but could not recall his name.
Defendant had asked her about the three dates, not because of an alibi,
but so he could put it on his time sheet to show he was taking care of her at
that time. Defendant took care of her
because she had brain damage. She did
recall defendant mentioning he knew someone who wanted to sell a shotgun.
Detective
Harris indicated that defendant’s hair was much shorter at the time he was
arrested than it was at trial. Defendant
was approximately six feet tall.
B. Defense
Silva
had described his assailant to another San Bernardino police officer as
approximately five feet ten inches tall, 210 pounds, clean shaven, and with a
shaved head or short hair. Silva stated
immediately after the robbery that he would not be able to identify the suspect
if he saw him again.
III
SUFFICIENT
EVIDENCE OF ROBBERY
Defendant
contends that the evidence was insufficient to prove that he perpetrated the
robbery against Carrillo, the charges in counts 2, 3, and 4. He claims that the only evidence linking
defendant to the crime was the same modus operandi as the Silva and Cordova
robberies, and this was insufficient to support the verdict.
“Our
task is clear. ‘On appeal we review the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence ‑‑ that is, evidence
that is reasonable, credible, and of solid value ‑‑ from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] The standard of review is the same in cases
in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of
which suggests guilt and the other innocence [citations], it is the jury, not
the appellate court[,] which must be convinced of the defendant’s guilt beyond
a reasonable doubt. ‘“If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.â€â€™ [Citations.]†[Citation.]’
[Citations.] The conviction shall
stand ‘unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].â€â€™ [Citation.]â€
(People v. Cravens (2012) 53
Cal.4th 500, 507-508.)
“Defendant’s
hurdle to secure a reversal is just as high even when the prosecution’s case
depends on circumstantial evidence.†(
331, 336 [Fourth Dist., Div. Two].) A
similar modus operandi in separate crimes can provide sufficient circumstantial
evidence to support a conviction. (
Here,
in the first robbery, Silva met Christina Aquino over the Internet and she
directed him to a home on Kendall Way.
Once there, Silva was approached by defendant, whom he clearly
identified both from a six-pack photographic lineup and in court, who held a
shotgun to his face. Defendant was
wearing a dark hooded sweater and took Silva’s money and wallet.
In
the third robbery against Cordova, where defendant was again identified as the
perpetrator, Cordova met a girl named Christina over the Internet who directed
him to an apartment complex within a short distance of the Kendall Way
house. One can reasonably surmise that
Christina and defendant were nervous about committing another robbery at the
Kendall Way address. Once there, Cordova
was approached by defendant, who again was wearing a black hooded sweatshirt
and was armed with a shotgun. After the
encounter, Federal brand shotgun shells were found at the scene.
Defendant
was not identified by Carrillo, the victim in counts 2, 3, and 4. However, the modus operandi was almost
identical to the other robberies.
Carrillo was at the Kendall Way address to meet Christina, whom he had
met over the Internet. Once he arrived,
Carrillo was approached by a Hispanic male in a black hooded sweater armed with
a shotgun. Carrillo drove off, but not
before he was shot at two times. The
shotgun shells found after the incident with Carrillo were identical to the
ones that were later found at the Cordova scene. Although Carrillo could not identify the
shotgun, he explained he could not see the entire shotgun and that it was
dark.
In
addition to the similarity of the crimes, the jury could reasonably rely upon
Detective Harris’s testimony that Ranyak-Henry told him that defendant had been
with Christina around the time the crimes were committed. Further, the jury could also believe that
defendant contacted Ranyak-Henry and asked her to provide him an alibi for all
three dates that the offenses were committed.
This clearly showed defendant’s consciousness of guilt.
When
viewing the circumstantial evidence
tying defendant to the Carrillo robbery in the light most favorable to the People,
it is clear that the jury reasonably could have concluded that defendant was
the perpetrator of all three offenses, including the attempted robbery,
shooting at an occupied vehicle, and assault with a firearm against Carrillo.
Defendant
refers to Evidence Code section 1101, subdivision (b)
were not similar enough to show his identity.
However, that section has no applicability here. The modus operandi here was relevant to show
circumstantial evidence to support that defendant committed all of the
offenses. We reject defendant’s
claim. The verdict is supported by
substantial evidence.
IV
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] In
a prior trial, the jury could not reach a verdict and a mistrial was
declared.
name="_ftn2" title=""> [2] All
further statutory references are to the Penal Code unless otherwise indicated.
