P. v. Castrejon
Filed 5/20/13 P. v. Castrejon CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
>
THE PEOPLE, Plaintiff and Respondent, v. JOSE A. CASTREJON, Defendant and Appellant. | B239024 (Los Angeles County Super. Ct. No. KA090313) |
APPEAL from a judgment of the Superior Court of
County, Mike Camacho, Judge.
Affirmed.
Jenifer Hansen, 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, Assistant
Attorney General, Linda C. Johnson and Blythe J. Leszkay, Deputy Attorneys
General, for Plaintiff and Respondent.
Jose A. Castrejon appeals from the
judgment entered following his conviction by jury on one count of second degree
robbery in violation of Penal Code section 211.
allowing the prosecution to impeach him with a prior conviction and in
excluding a photograph he sought to introduce.
He also contends that the trial court abused its discretion in denying
his motion for a new trial. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
Prosecution Evidence
On April 7, 2010, J.P., who was eight years old at
the time, went to the store with her uncle, Miguel Frausto (Miguel) to buy a
collar for her aunt’s dog. J.P. held the
dog on a leash outside the store while her uncle went inside. While J.P. was standing outside the store, a
man came up to her, grabbed the dog, and ran to his truck. J.P. yelled for her uncle and tried to hold
onto the leash, but the man drove away with the dog. Miguel ran out of the store and saw a truck
that he knew belonged to appellant drive away.
He testified that he did not see appellant in the truck, but he
recognized the truck as appellant’s.
Miguel knew appellant because his sister, Stephanie Frausto (Stephanie),
used to date appellant’s cousin.
Stephanie obtained the surveillance
video from the store, and it was played at trial. The video shows a man in a white T-shirt
taking the dog from J.P., and Miguel running out of the store.
Miguel contacted the police the day
after the incident. After notifying the
police, Miguel and his brother George went to appellant’s house to get the
dog. Appellant’s cousin gave them the
dog. When Stephanie got the dog back,
she noticed that someone had tried to cover a scar on the top of the dog’s head
with a marker or paint.
The day after retrieving the dog,
Miguel and George met appellant and some of appellant’s friends at a park to
discuss the incident. Miguel testified
that they settled the matter.
Miguel told Los Angeles County
Sheriff’s Department Detective Glen Eads that he saw appellant get into the
truck with the dog, and he identified appellant in a photographic lineup. However, at trial Miguel denied seeing
appellant with the dog and testified that he did not remember identifying
appellant to Detective Eads.
Detective Eads and his partner went to
appellant’s house, where they saw appellant sitting on a motorcycle in the
street. When they approached appellant,
appellant said, “Is this about the . . . stupid dog that got stolen?†Appellant told them that he had spoken to the
family members about the incident, and it “was taken care of.†Appellant also said, “Don’t you guys have
anything better to do than harass me for stealing a dog? There’s people out there being shot and
killed.†At trial, appellant denied
making these statements. Detective Eads
searched appellant’s truck and found a white T-shirt and some dog food.
Defense Evidence
Appellant’s cousin, Ezequiel Marin,
lived with appellant. Marin knew Miguel
and George because he had dated Stephanie for six months in 2008.
In April 2010, Marin saw Miguel and
George outside his house, looking at appellant’s truck. Miguel and George started yelling at Marin
about a puppy, saying that Marin and appellant “did it.†Marin did not know what they were talking about,
but he had seen a dog in the house that morning, so he went into the house, got
the dog, and gave it to Miguel and George.
Appellant testified that the man in
the white T-shirt seen on the surveillance video taking the dog was not him,
but a man named Morro. He stated that he
had let Morro borrow his truck that day, even though he did not know Morro
well. When Morro returned the truck
about 15 minutes later, he told appellant he had found the dog running down the
street. Appellant bought the dog from
Morro for $50 and put it in his house.
Appellant testified that Miguel called
him and took him to J.P.’s house, where he discussed the incident with Miguel,
J.P., and J.P.’s mother, grandmother, and aunt.
Appellant told J.P.’s family that he had loaned his truck to Morro and
wanted to help them find Morro.
Appellant did not know where Morro
lived. He searched for Morro in the
neighborhood for about a day and a half but did not find him.
Appellant told Detective Eads that
Morro had taken the dog. Detective Eads
asked appellant for contact information for Morro, but appellant did not have
any. Appellant told Detective Eads that
Morro was about his own height and weight.
Rebuttal Evidence
Appellant told Detective Eads that he
knew Morro had stolen the dog, but appellant wanted to make money by buying it
for $50 and reselling it for $150. After
Detective Eads told appellant that the family denied meeting with him,
appellant changed his story to say that he had only met with Miguel.
Procedural Background
Appellant was charged by information
with one count of second degree robbery (§ 211). The information further alleged that the
victim of the offense was under 14 years old pursuant to section 667.9,
subdivision (a).
The jury found appellant guilty and
found the allegation to be true. The
court sentenced appellant to the upper term of five years, plus one year
pursuant to section 667.9, subdivision (a), for a total term of six years. Appellant filed a timely notice of
appeal.
DISCUSSION
Appellant challenges his conviction on
three grounds. First, he contends that
the trial court erred in permitting the prosecution to impeach him with a prior
conviction for carrying a concealed weapon because the offense did not involve
moral turpitude. Second, he contends
that the trial court abused its discretion in excluding the photograph of
Morro. Finally, appellant contends that
the court abused its discretion in denying his
denied the effective assistance of counsel.
I. Impeachment
with Prior Conviction
The trial court permitted the
prosecutor to impeach appellant with a felony conviction for possession of a
concealed firearm under former section 12025, subdivision (a)(1).
of a concealed firearm is not a crime of moral turpitude, and that therefore
the court erred. We disagree.
In People
v. Robinson (2005) 37 Cal.4th 592 (Robinson),
the California Supreme Court noted that the prosecution witnesses’ misdemeanor
convictions for possession of a concealed handgun “reflected a crime of moral
turpitude and therefore were relevant to the witnesses’ honesty and
veracity.†(Id. at p. 626.) Similarly,
in People v. Gabriel (2012) 206
Cal.App.4th 450 (Gabriel), the
appellate court held that the trial court properly permitted the prosecution to
impeach the defendant with evidence of his prior conviction for possession of
an assault weapon in violation of section 12280, subdivision (b). (Gabriel,
supra, 206 Cal.App.4th at p.
458.) The court relied on
795, which held that the possession of an unregistered firearm was a crime of
moral turpitude, and reasoned that “[t]he mere possession of such weapons
indicates a readiness to do evil. [Citations.]†(Gabriel,
supra, 206 Cal.App.4th at p.
457.)
In light of these decisions, we
conclude that felony possession of a concealed firearm suggests a readiness to
do evil, and that therefore the crime is one of moral turpitude. In any event, even if appellant’s conviction
did not involve moral turpitude, we would find no prejudice. The evidence of appellant’s guilt was
strong. His truck was used in the
crime. Miguel told Detective Eads that
he saw appellant get into the truck with the dog (though at trial Miguel denied
this and testified that the matter had been settled with appellant). The day after the robbery, the dog was at
appellant’s house, where it was returned to Miguel and his cousin. Detective Eads testified that appellant
essentially admitted stealing the dog when he saw Detective Eads approaching
him at appellant’s house. Appellant’s
defense was that the true robber was someone named Morro, to whom he had loaned
his truck. But he did not know Morro
well and had no contact information for him.
In light of the evidence that was presented, it is not reasonably
probable that if the trial court had not allowed appellant to be impeached with
his conviction for possession of a concealed firearm, a result more favorable
to appellant would have occurred. (
319.)
II.
Defense counsel sought to introduce a
photograph printed from Facebook that allegedly was a picture of Morro. To lay the foundation, Marin testified that,
during the trial, he was on Facebook and saw a picture of a girl he knew in a
picture with Morro. Marin was friends
with the girl on Facebook, but he did not know her name, and he did not know
when or where the picture of the girl and Morro was taken. Appellant testified that Morro was the person
in the picture, but he did not know the girl in the picture and was not present
when the picture was taken.
After hearing Marin’s and appellant’s
testimony, the court expressed concern that the prosecution did not have the
opportunity to do any independent investigation about the identity of the
person in the photograph. The court also
found Marin’s testimony not credible and so concluded that the foundation was
not properly laid regarding the source of the photograph. The court therefore excluded the
photograph.
“A trial court’s decision to admit or
exclude evidence is a matter committed to its discretion ‘“and will not be
disturbed except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.â€â€™
[Citation.]†(
585, overruled on another point in Melendez–Diaz
v. Massachusetts (2009) 557 U.S. 305.)
“A photograph is a ‘writing’ and
‘[a]uthentication of a writing is required before it may be received in
evidence.’ (Evid. Code, §§ 250,
1401, subd. (a).) [¶] A photograph or other writing may be
authenticated by ‘the introduction of evidence sufficient to sustain a finding
that it is the writing that the proponent of the evidence claims it is’ (Evid.
Code, § 1400) . . . .†(
509, 514 (Beckley).) Beckley
described two ways to authenticate a photograph. First, “‘the testimony of a person who was
present at the time a film was made that it accurately depicts what it purports
to show is a legally sufficient foundation for its admission into
evidence.’ [Citation.]†(Id.
at p. 515.) Second, “authentication of a
photograph ‘may be provided by the aid of expert testimony, . . .
although there is no one qualified to authenticate it from personal
observation.’ [Citation.]†(Ibid.)
In Beckley,
the court held that the prosecution failed to authenticate a photograph taken
from a defendant’s girlfriend’s MySpace page, even though the defendants
conceded the face in the photograph was the girlfriend’s face. (Beckley,
supra, 185 Cal.App.4th at p.
515.) The detective who downloaded the
photograph “could not testify from his personal knowledge that the photograph
truthfully portrayed [the girlfriend] flashing the gang sign and . . . no
expert testified that the picture was not a ‘“composite†or “fakedâ€â€™
photograph.†(Ibid.) The court reasoned
that digital photographs could easily “be changed to produce false images†in
concluding that the photograph was not sufficiently authenticated, although the
court further held that the admission of the photograph was not prejudicial
because of the strong evidence of guilt.
(Id. at p. 515.)
Beckley
also held that the prosecution insufficiently authenticated a purported gang
member roster that the detective printed from the internet. (Beckley,
supra, 185 Cal.App.4th at pp.
517-518.) Although the printout
presumably was “an accurate representation of the Web page [the detective]
found on the Internet,†the court stated that the evidence was insufficient to
show that the writing was what it purported to be – a roster of the gang’s
members. (Id. at p. 517.)
By contrast, in People v. Valdez (2011) 201 Cal.App.4th 1429, 1434 (
prosecution did sufficiently authenticate printouts from the defendant’s
MySpace page. In Valdez, the investigator from the district attorney’s office had
printed out the photos a year before the offense at issue. The defendant did not dispute that his own
picture was the MySpace page icon identifying the owner of the page, and there
were greetings addressed to him by name from other MySpace users, including one
from his sister, calling him “big brother.â€
The page owner’s stated interests matched what the police otherwise knew
about him, and the posts by friends and the page owner included personal
details consistent with the defendant.
Because “a reasonable trier of fact could conclude from the posting of
personal photographs, communications, and other details that the MySpace page
belonged to [the defendant],†the court held that “the trial court did not err
in admitting the page for the jury to determine whether he authored it.†(Id.
at p. 1435.) The court also pointed out
that the defendant did not dispute he was the person in a photograph forming a
gang signal, the page was password protected for posting content, and that the
detective downloaded the page long before the crimes at issue. (Id.
at p. 1436.)
Unlike Valdez, in which there were a number of factors indicating the
authenticity of the photograph and writings on the page, there was no evidence
here to sustain a finding that the photograph was what appellant claimed it was
– a picture of Morro. Similar to
testify from personal knowledge that the photograph truthfully portrayed
Morro. (Beckley, supra, 185
Cal.App.4th at p. 515.) Neither Marin
nor appellant had any personal knowledge about who took the photo, and they did
not know the name of the girl who had posted it. The trial court did not err in excluding the
photograph.
Even if there was error, “‘“[a]s a
general matter, the ordinary rules of evidence do not impermissibly infringe on
the accused’s [state or federal constitutional] right to present a
defense.â€â€™ [Citations.]†(People
v. Prince (2007) 40 Cal.4th 1179, 1243.)
“‘It is . . . well settled that the erroneous admission or exclusion of
evidence does not require reversal except where the error or errors caused a miscarriage
of justice. [Citation.] “[A] ‘miscarriage of justice’ should be
declared only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable
that a result more favorable to the appealing party would have been reached in
the absence of the error.â€
[Citations.]’ [Citation.]†(People
v. Fields (2009) 175 Cal.App.4th 1001, 1018.) Because of the strong evidence of appellant’s
guilt, even if the purported photograph of Morro had been admitted, it is not
reasonably probable that a result more favorable to appellant would have been
reached.
III. Motion
for New Trial
Appellant contends that the trial
court abused its discretion in denying his motion for a new trial, which was based
on defense counsel’s assertion that she failed to call two witnesses critical
to appellant’s defense. We find no abuse
of discretion.
One of the issues during the trial was
whether J.P. was accompanied to the store by Miguel or George. Marin testified that while he was dating
Stephanie, George always had hair and a mustache, and Miguel was always bald
and clean-shaven, but Marin had not seen them since he and Stephanie broke up
in 2008. Marin testified that it was
George, not Miguel, in the surveillance video.
A defense investigator, Edward Acosta,
testified that when he interviewed J.P. about the robbery, she told him George
had taken her to the store that day.
Acosta and appellant went to the home to speak with George, but while
Acosta was speaking to J.P. about George, J.P.’s mother interrupted and said
that it was Miguel who took J.P. to the store.
At appellant’s sentencing hearing,
defense counsel made an oral motion for a new trial, on the basis that she had
failed to call two deputies whose reports indicated that it was George, not
Miguel, who took J.P. to the store and witnessed the incident. She argued that, had she called them as
witnesses, they would have established that Miguel committed perjury when he
testified about the incident. The court
denied the motion, reasoning that, whether it was George or Miguel who
accompanied J.P. to the store, the fact remained that the dog was taken from
J.P. The court stated that, although
“issues of credibility are fodder for argument,†it was irrelevant whether
George or Miguel was the percipient witness to the incident. The court thus concluded that appellant was
not denied a fair trial.
“‘“We review a trial court’s ruling on
a motion for a new trial under a deferential abuse-of-discretion
standard.†[Citations.] “‘A trial court’s ruling on a motion for new
trial is so completely within that court’s discretion that a reviewing court
will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion.’â€â€™ [Citation.]†(People
v. Lightsey (2012) 54 Cal.4th 668, 729.)
“Penal Code section 1181 enumerates
nine grounds for ordering a new trial.
It is true the section expressly limits the grant of a new trial to only
the listed grounds, and ineffective assistance is not among them. Nevertheless, the statute should not be read
to limit the constitutional duty of trial courts to ensure that defendants be
accorded due process of law. ‘Upon the trial judge rests the duty of
seeing that the trial is conducted with solicitude for the essential rights of
the accused.’ [Citations.]†(People
v. Fosselman (1983) 33 Cal.3d 572, 582.)
“There are two components to an
ineffective assistance of counsel claim:
deficient performance of counsel and prejudice to the petitioner. Strickland
v. Washington (1984) 466 U.S. 668, 697, informs us that ‘there is no reason
for a court deciding an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.
In particular, a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. The
object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.’†(In re Cox
(2003) 30 Cal.4th 974, 1019-1020 (Cox).) To establish prejudice, a defendant must show
that, “‘but for counsel’s unprofessional errors and/or omissions, the trial
would have resulted in a more favorable outcome.’ [Citation.]â€
(Id. at p. 1016.)
Appellant contends that he was
prejudiced by trial counsel’s failure to call the two deputies because they
would have called Miguel’s credibility into question, and Miguel was the only
witness who identified appellant as the perpetrator. He argues that the case against him was weak,
so calling the two deputies would have resulted in a more favorable outcome for
him. We disagree.
The case against appellant was not
weak, and Miguel’s credibility was not crucial.
The video, on which both Miguel and appellant were seen, was presented
into evidence. More importantly, there
was no question that the dog was at appellant’s house. The only question was whether the jury
believed appellant’s story that Morro, not he, had taken the dog. In addition, Detective Eads’ testimony that
appellant essentially admitted stealing the dog when he saw the detective was
compelling evidence of appellant’s guilt.
There is not “‘a reasonable probability that a more favorable outcome
would have resulted had the evidence been presented, i.e., a probability
sufficient to undermine confidence in the outcome. [Citations.]’†(Cox,
supra, 30 Cal.4th at p. 1016.)
Because we conclude that appellant was
not prejudiced by trial counsel’s failure to call the two deputies, we further
conclude that the trial court did not abuse its discretion in denying
appellant’s new trial motion.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code unless otherwise specified.
name="_ftn2" title="">
[2] The provision regarding carrying a
concealed weapon is now found in section 25400.
