P. v. Cons
Filed 3/2/12
P. v. Cons CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK
CONS,
Defendant and Appellant.
B230178
(Los Angeles County
Super. Ct. No. GA076591)
APPEAL
from a judgment of the Superior Court of
County, Candace Beason, Judge. Modify and affirm.
Thomas
Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General,
for Plaintiff and Respondent.
______________________________
Defendant Mark Cons
appeals from a judgment after a jury convicted him of 11 counts of
discretion in denying his request to present evidence of third-party
culpability and that the three counts based on a robbery of a Taco Bell
restaurant were not supported by substantial
evidence. We disagree and affirm the
judgment, modifying some of the fees and fines.
The
robberies occurred within a span of two months in 2009 in the Rosemead-San
Gabriel area of Los Angeles County.
We review them chronologically.
The first of two robberies of the
Chevron gas station located at Hellman and Del Mar Avenue took place on March
16, 2009
(count 2). It was caught on camera. The robber was described as a six-foot-tall
man dressed in a green hooded sweatshirt with a front pocket, white sweatpants,
and white tennis shoes. He wore black
gloves and a black mask. He held a black
gun in his right hand and demanded the money in the cash register. He appeared nervous, fidgeted, and threatened
to shoot a customer if he moved. When
the cashier handed him the money, the robber asked if this was all, and she
showed him the empty drawer. He then
asked for cigarettes and, after the cashier gave him a few boxes, left through
a door leading toward the Pizza Hut restaurant located at Del Mar Avenue and
Garvey.
That restaurant was robbed next
(counts 4 and 8). The robber was
described as a man six to six foot two inches tall, who wore a hooded green
sweatshirt with a front pocket, black gloves, off-white sweatpants and tennis
shoes. One employee later identified the
robber’s clothes and build as similar to those captured in a still photograph
of the second Chevron gas station robbery.
The other employee saw the robber’s face before he pulled down his
facemask. She picked defendant out of a
photographic lineup based on his jaw line, but was not completely sure because
on the photograph defendant had a moustache, and she did not remember the
robber having one. The robber pointed a
black gun at the two employees, demanded all the money they had, then jumped
over the counter, repeated the demand, and threatened to shoot one of them if
the other one moved. He took the cash
out of the cash register himself, asked if that was all, then jumped back over
the counter, and left.
The Taco Bell restaurant located on Valley Boulevard in Rosemead was robbed on March 21 (counts
11-13). The robbery was caught on
camera. The shift manager described the
robber as a man of medium build, wearing a green sweatshirt with a hood, blue
jeans, white tennis shoes, black gloves, and a black mask. The surveillance video captured the robber
entering the restaurant and walking into the employee area behind the front
counter holding a black gun in his right hand.
He gathered two other employees and brought them to the area behind the
counter. He then demanded that the shift
manager open the drive-thru cash register and give him the money, telling her
to hurry up. Once the register was
opened, he took the cash out of the drawer with his left hand while holding the
gun in his right. He then took cash from
the front register as well and left after the shift manager told him that a
third cash register was not in use.
The next
day, March 22, the first in a series of three robberies of Armando’s restaurant
on Del Mar Avenue and Valley Boulevard took place (count 5). The robber was a man described as five feet,
nine inches tall, and wearing all black:
a hooded sweatshirt, pants, gloves, and a mask. He held a black gun in his right hand,
demanded money from the register, took the cash that was handed to him, and
left.
On March 29,
the Mobil gas station at 730 East Las Tunas Drive in San Gabriel was robbed by a man described as 5
feet 10 or 11 inches tall, wearing a faded black hooded sweatshirt, black
pants, a belt with a buckle, gloves, and a yellow bandana over his face (count
14). The robbery was caught on
camera. The cashier later identified a
pair of designer jeans and a belt buckle among clothes retrieved from
defendant’s house. The robber held a
black nine millimeter gun in his right hand and demanded money. When the cashier began handing him cash, the
robber demanded the cash register drawer and took the cash himself. He also took some cigarettes.
Que’s Bar
& Grill on Valley Boulevard in Rosemead was robbed on April 5 (count
15). The bartender described the robber
as 5 feet 10 inches tall, 20 to 30 years old, and wearing a dark sweater with a
hood, a ski mask, dark pants, dark shoes and dark gloves. She described the gun as silver. The robber went behind the counter and
demanded that the bartender open the cash register. He then took cash out.
The second robbery of the Chevron gas
station took place on April 12 (count 3).
Like the first, it was caught on video, but this time the outside
surveillance camera captured the robber’s face before he pulled the mask over
it. A detective who investigated the
robbery and who had had prior contacts with defendant recognized his body
shape, narrow face, and distinctive jaw line, but did not perceive a moustache
on the video. The robber was wearing
white sweatpants and a green hooded sweatshirt, black gloves, dark glasses, and
a baseball cap with a horse head logo on it.
He demanded money, and when the cashier handed it to him, he grabbed it
with his left hand.
On April 13,
a detective took a still photograph from the surveillance video of the Chevron
gas station robber to Sonia Aviles, a waitress at Armando’s who had witnessed
the first robbery there. Aviles
recognized the cap the robber was wearing as having been worn by a customer who
had eaten at the restaurant that day and who had looked around the restaurant
while eating.
The second robbery at Armando’s took
place on the following day, April 14 (count 6).
After that robbery, Aviles identified defendant from a photographic six
pack. She was of the opinion that the
customer she saw eating at the restaurant was the person who had robbed it
twice. She mentioned that both the
customer and the individual involved in the second robbery walked with a
limp. A security guard at Hawaii Market,
located across Del Mar Avenue from Armando’s, had escorted defendant from the
market earlier during the day on April 14.
He then saw defendant running through an alley near Armando’s around the
time of the second robbery at that restaurant.
He picked defendant’s photograph from a six pack.
Two detectives conducted surveillance
of defendant on April 17. They saw him
coming and going from his house on Palm Avenue, one block east of Hawaii
Market, using a taxicab to get to different establishments up and down Valley
Boulevard and walking around in the area.
He wore a teal cap with a reddish horse head logo on it. He walked with a limp and acted as if he
suspected that he was being followed.
The last robbery at Armando’s
occurred on April 20 (count 7). Aviles
recognized the robber, his voice, and the gun he held from the previous two
robberies. The robber again wore a mask
and gloves; he also wore a black hooded sweatshirt with a design on the
back.
On April 23,
defendant was arrested and his house was searched. The police retrieved a Santa Anita Racetrack
baseball cap with a horse head logo on it, white sweatpants, black designer
jeans with a belt, several pairs of gloves, and sunglasses. At the time of his arrest, defendant had a
moustache.
Defendant
was originally charged in two separate cases, which were later
consolidated. A firearm enhancement was
alleged as to 13 of the 15 counts with which defendant was charged. A prior serious felony conviction and a prior
prison term also were alleged. Counts 1,
9, and 10 were dismissed before the case was submitted to the jury. The court denied the defense’s request to
introduce evidence of third-party culpability.
At trial, the defense elicited evidence that in 2007 the Santa Anita
Racetrack had given fans 25,000 promotional caps like the one found in
defendant’s house. Defense counsel argued
that defendant had been misidentified.
The jury convicted defendant of 11 of
the remaining 12 counts but deadlocked on count 15 (the robbery of Que’s Bar
& Grill). It found true the firearm
allegations on all 11 counts.
name="_ftnref2" title="">[2] Defendant waived jury trial on the priors,
and the court found them true.
Defendant was sentenced to 55 years
and four months in prison: 20 years for
the base count 2, comprised of the upper term of five years doubled to 10 years
for the strike prior with a consecutive 10 years for the firearm enhancement;
30 years and four months altogether for counts 3, 5, 6, 7, 8, 11, and 14 to run
consecutively to count 2, comprised of one year (one-third of the mid-term of
three years) plus three years and four months (one-third the 10-year firearm
enhancement) for a total of four years and four months on each of these counts;
and an additional five-year enhancement under section 667, subdivision
(a)(1). Defendant received concurrent
terms of three years with a consecutive 10-year firearm enhancement for counts
4, 12, and 13. He was given credit of
685 days, including 89 days of conduct credit.
The court also imposed various fees and fines.
This timely appeal followed.
I
Defendant
contends that the trial court abused its discretion and deprived him of the
right to present a defense by denying his request to introduce evidence that
the robberies could have been committed by his girlfriend’s father.
Third-party culpability evidence is
admissible if it is “‘capable of raising a reasonable doubt of defendant’s
guilt.’” (People v. Lewis (2001) 26 Cal.4th 334, 372, quoting
833.) “‘[E]vidence of mere motive or
opportunity to commit the crime in another person, without more, will not
suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the
crime.’” (Ibid.) In addition, evidence
that produces speculative inferences is irrelevant, and a threshold evidentiary
ruling to exclude it does not invade the province of the jury. (Id. at
p. 373.) We review the exclusion of such
evidence for abuse of discretion. (
558.)
Defense
counsel’s request was supported by an investigator’s report of an interview
with defendant’s girlfriend, Thaisse Glave.
She reportedly stated that her father committed many robberies in the 10
years he lived with her and defendant, and she remembered several times during
the years when he would run into the house, lock the door, and look out of the
window at police cars driving down the street with lights and sirens on. He would then take wads of cash out of his
pocket. Glave also told the investigator
that her father had access to defendant’s clothes and looked similar to
defendant in height and build. The court
concluded that the investigative report did not specifically connect any of
these events to the time of the robberies.
The court denied the request without prejudice to renewing it if
additional evidence became available or Glave agreed to testify and expanded on
her statement.
At an
Evidence Code section 402 hearing later on the same day, Glave testified that
her father, William Poplin, lived with her and defendant when he was out of
prison, including the period between February and April 2009. Poplin borrowed defendant’s clothes, and he
had a Santa Anita Racetrack baseball cap with a horse on it. Poplin was taller than defendant, but the two
looked alike and had been mistaken for each other in the past. Glave invoked her Fifth Amendment right
against self-incrimination as to questions having to do with the period during
which the charged robberies occurred, and the court declared her
unavailable. Poplin also invoked his
right against self-incrimination.
The defense
offered no direct or circumstantial evidence linking Poplin to the actual
commission of any of the charged robberies.
Glave’s testimony that Poplin was a criminal and her hearsay statement
to the investigator that Poplin committed many robberies over the years was
temporally unspecific and thus amounted to inadmissible character
evidence. (See People v. Lewis, supra,
26 Cal.4th at p. 373.) Poplin’s presence
in the San Gabriel area at the time of the robberies was evidence he had
opportunity to commit them, but evidence of mere opportunity was insufficient
to create reasonable doubt. (See
Glave’s
allegation that Poplin resembled defendant and had access to his clothes
produced only a remote and speculative connection to the robberies. There was no evidence that Poplin wore any of
the clothes worn in the robberies, with the possible exception of the Santa
Anita Racetrack cap, which he allegedly owned.
The cap was caught on film in the second Chevron gas station
robbery. But in that robbery and in
other instances when defendant was identified as the person wearing the
baseball cap (as a customer at Armando’s or a person under surveillance), his
face was visible, and his identification was not based solely on the cap or on
his general build.
The
allegation that Poplin and defendant resembled each other was vague, and Glave
described Poplin very broadly as “tall and skinny.” The only identified facial similarity with
defendant was that each had a moustache.
Yet the identification of defendant at trial was not based on his having
a moustache at the time of the robberies.
In fact, defendant argued he could not be the robber because the robber
apparently did not have a moustache, and defendant had one at the time of his
arrest.
We conclude
that defendant failed to offer “‘direct or circumstantial evidence linking the
third person to the actual perpetration of the crime’” sufficient to raise a
reasonable doubt about defendant’s guilt.
(People v. Lewis, supra, 26
Cal.4th at p. 372.) The trial court did not abuse its discretion
in excluding the third-party culpability evidence.
II
Defendant
challenges the sufficiency of the evidence in support of counts 11 through 13,
all of which are based on the Taco Bell robbery. He argues that the testimony and surveillance
video established “the most generic of robbers:
a person wearing generic jeans, a dark hoodie, a mask, and gloves.”
“[W]e
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.” (People
v. Stanley (1995) 10 Cal.4th 764, 792.)
“’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.’” [Citations.]’
[Citation.]” (
insufficiency of the evidence unless it appears that upon no hypothesis
whatever is there substantial evidence to support the conviction. (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
We
conclude that there is substantial evidence to support defendant’s conviction
of the Taco Bell robbery. The
surveillance film and the shift manager’s testimony established that the Taco
Bell robber wore a dark green hooded sweatshirt. The robber in the Chevron gas station
robberies, both caught on film, also wore a dark green hooded sweatshirt. Defendant does not challenge the sufficiency
of the evidence implicating him in the Chevron gas station robberies. The jury could view the extensive
surveillance footage of these three robberies and conclude that the same dark
green hooded sweatshirt with a front pocket was worn in all three
robberies. From the video recording of
these three robberies, as well as the recording of the Mobil gas station
robbery, the jury could conclude that the robber’s build, posture, gait,
gestures, and his tendency to grab the cash with his left hand, were
sufficiently similar as to implicate defendant in all three robberies. That the jury could also have reached a
contrary conclusion based on this evidence does not require reversal of
defendant’s conviction of counts 11 through 13.
(See People v. Stanley,
III
On
the record, the trial court imposed “a $40 security fee per count, a $30
criminal conviction fee, and a $10 theft fee each per count. So that’s a total of $80 per count.” The minute order indicates that the court
imposed for each count a $40 court security fee under section 1465.8,
subdivision (a)(1); a $30 criminal conviction fee under Government Code section
70373; and a $10 crime prevention fund fine under section 1202.5 with a $28
penalty assessment. The abstract of
judgment in turn lists a $560 court security fee, a $420 criminal conviction
fee, and a $532 fine under section 1202.5.
The parties
agree that the amount of these fees and fines is excessive. Section 1202.5, subdivision (a) states: “In any case in which a defendant is convicted
of any of the offenses enumerated in Section 211 . . . , the court shall order
the defendant to pay a fine of ten dollars ($10) in addition to any other
penalty or fine imposed.” The $10 crime prevention fine is to be imposed only once per
case. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Thus, the fine imposed in this case should be reduced from
$532 to $10.
title="">[3]
The
total amount of the court security and criminal conviction fees on the abstract
of judgment appears to have been erroneously computed by multiplying the base
amount of these fees 14 times, even though defendant was only convicted of 11
counts. The abstract of judgment must be
amended to correct this clerical error.
(People v. Mitchell (2001) 26
Cal.4th 181, 185.)
The judgment
is affirmed with the modification that a single $10 fine under section 1202.5
must be imposed. The abstract of
judgment must be corrected to reflect this modification and to reduce the
amounts of fees to $440 under section 1465.8 and $330 under Government Code
section 70373.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We
concur:
WILLHITE, J.
MANELLA, J.
otherwise indicated.
as to count 14, but the verdict form did.
Defendant does not raise lack of notice of this enhancement as an issue
on appeal.
