P. v. Lucas
Filed 7/11/12 P. v. Lucas CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN DARIUS LUCAS,
Defendant and Appellant.
B232932
(Los Angeles County
Super. Ct. No. YA076170)
APPEAL from
a judgment of the Superior Court
of
County. Eric C. Taylor,
Judge. Affirmed.
Justin
Darius Lucas, in pro. per.; and Johanna R. Perko, under appointment by the
Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
______________________________
>
Justin
Darius Lucas appeals from a judgment of conviction of
firearm, and various prior offenses.
Finding no prejudicial error, we affirm.
STATEMENT OF FACTS
On the late
afternoon of September 21, 2009,
62-year-old Rene Aguero Ferrada arrived in his van at the underground parking
garage of an apartment complex, to visit his son. When he opened the van’s sliding side door, a
man approached him from the rear of the van, pointing a large black handgun at
Ferrada’s chest. He later identified the
man as defendant. With his finger on the
gun’s trigger, defendant demanded money.
When
Ferrada replied that he had no money, defendant searched Ferrada’s pants
pockets, finding Ferrada’s wallet with $25.
Defendant took the money, and a black cell phone, and returned the
wallet.
Defendant
became angry when Ferrada said he had no more money. He punched Ferrada on the chin, and told him
to face the wall. As defendant left the
parking garage, Ferrada followed, running out to the garage in time to see
defendant get into the passenger side of a waiting blue minivan being driven by
a woman.
As Ferrada
ran after the van a police car drove from the parking lot of a nearby
restaurant. Ferrada pointed and told the
officer that his money and cell phone had been taken, and that “he has a
weapon.â€
The
officer, Los Angeles County Sheriff Deputy Mercado, had seen defendant walk
quickly from the parking garage holding his waistband, followed by Ferrada,
waving his arms and yelling about having been robbed at gunpoint. When Mercado saw defendant get into the
minivan, he drove his patrol car in front of the minivan and ordered its
occupants to get out. Mercado gave the
black cell phone defendant was holding to Ferrada.
The
minivan’s driver went to the patrol car’s back seat at Mercado’s
instruction. But defendant opened the
van door and ran, holding his waistband.
Mercado chased defendant in his patrol car, seeing him stop briefly to
remove a handgun from his waistband and throw it into a trash can. He found defendant hiding behind a pillar,
and arrested him.
After
detaining defendant, Mercado recovered the gun—a loaded nine-
millimeter semi-automatic pistol—from a trash can where he
had seen defendant throw it. From the
minivan’s passenger seat Mercado recovered $25, and a wallet containing
defendant’s identification. Shortly
afterward, Ferrada identified defendant as the man who had robbed him, and he
identified photographs of his cell phone, the minivan, and the gun.
After
defendant’s arrest but before he had been advised of his rights under Miranda
v. Arizona (1996) 384 U.S. 436, Detective Glynn approached defendant’s jail
cell, telling him that he was being charged with robbery and possession of a
firearm, and asking if he wanted to speak to her. Defendant replied that he did not want to
talk to her. As Detective Glynn walked
away without asking anything further, defendant shouted after her, asking why
the woman arrested with him was being held, and saying that the woman had
“nothing to do with this,†that she did not know he was “going to pitch,†and
to “tell her I love her.†The detective
testified that “pitch†is common street slang for stealing or robbing
someone. In a hearing under Evidence
Code section 402, defendant’s counsel argued unsuccessfully that evidence of
defendant’s statement to the detective should be excluded, as a violation of
his rights under Miranda.
Also over
defendant’s objection, the prosecution presented testimony from Patricia Jones
that on June 20, 2000, she had been the victim of an attempted carjacking for
which defendant had been tried and convicted.
Ms. Jones testified that she and friends had encountered defendant and
others at about 1:00 a.m. at a gas
station near her Malibu home. Defendant and a friend had then followed
Jones home, through her electric security gate.
In Jones’s driveway, defendant had approached Jones’s car, pointed a gun
and told her passenger to get out and empty his pockets, then had gotten into
the car and demanded Jones’s jewelry.
Jones refused. Angry and nervous,
defendant had pointed the gun at her forehead; however, he fled when Jones
yelled “release the dogs; close the gate.â€
The jury was instructed that Jones’s testimony could not be used to show
defendant’s bad character or his guilt of the charged offenses, but could be
considered only on the issues of his identity as the perpetrator of the charged
offense, his intent to deprive Ferrada of his property, or whether the charged
offense was part of a plan. (Evid. Code,
§ 1101, subd. (b).)
PROCEDURAL HISTORY
A November 10, 2009 information
charged defendant in count 1 with second
degree robbery, a felony (Pen. Code, § 211), and charged
that in committing that offense he had personally used a firearm, rendering the
offense a “serious†and “violent†felony.
(Pen. Code, § 12022.53.) Count 2
of the information charged defendant with possession of a firearm by a felon
with prior convictions, a felony (former Pen. Code, § 12021, subd. (a)(1), now
Pen. Code, § 29800, subd. (a)(1)).
The
information charged in connection with the count 2 offense that defendant had
suffered a June 30, 2000
conviction for attempted carjacking,
and an October 15, 1998
conviction for violation of Health & Safety Code section 11359. And based on the attempted carjacking
conviction, the information charged also that defendant had suffered a prior
strike under the three strikes law; a prior serious felony conviction under
section 667, subdivision (a)(1); and a prior conviction under section 667.5,
subdivision (b). (Pen. Code, § 1170.12,
subd. (a)-(d).)
On June 1,
2010, the trial court denied defendant’s motion to strike his prior conviction
(for which he had received a prison sentence of eight years and six months)
under People v. Superior Court (Romero) (1996) 13 Cal.4th
497. On June 2, 2010, the court granted the prosecution’s motion
to admit evidence of defendant’s 2001 prior conviction, and the testimony of
Ms. Jones about the attempted carjacking, pursuant to Evidence Code section
1101, subdivision (b). Defendant then
stipulated to the 2001 conviction, and a 1998 conviction for violation of
Health & Safety Code section 11359.
On June 4, 2010, the court denied
defendant’s motion to exclude the detective’s testimony about his spontaneous
jailhouse statement. At the conclusion
of the prosecution’s evidence, the court denied defendant’s motion to dismiss
the charges for insufficiency of the evidence.
(Pen. Code, § 1118.1.) The jury
was instructed, and the Friday afternoon session ended with the prosecution’s
opening argument to the jury.
On Monday, June 7, 2010, the court
session began with a short final argument to the jury by defendant’s
attorney. At the close of that argument,
defendant asked for permission to address the court. The court instructed defendant to wait while
the jury exited into the jury room; however, defendant apparently did not wait. The transcript reflects that before the jury
had left the courtroom—and while the court was telling him, “Stop. Just hold on.
Stop. Okayâ€â€”Defendant said
“Jurors falling asleep. This is my
life. You playing me. You ain’t saying nothing. You even witnessed a juror going to sleep
several times.â€
After the
jurors had left the courtroom, the court permitted defendant to talk. Defendant explained that he had been seeing
jurors falling asleep, and had been telling his retained attorney, who had done
nothing. “This is my life you are
playing with,†he explained. He also
complained that the trial was unfair because he had seen a detective coercing a
witness (apparently Ms. Jones), with gestures and nods. “Ain’t nobody on my side. Everybody is against me. This is not a fair trial.†Defendant then requested a
After
clearing the courtroom of everyone except court personnel, the trial court
heard, and denied, defendant’s motion to discharge his attorney under
118. As the court later observed,
however, that case does not apply when the defendant has a retained attorney,
as defendant did. “So that hearing, it
was moot, in any event.â€
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With
respect to defendant’s complaint that jurors had fallen asleep during the
trial, the court noted its own observation that some jurors seemed
sleepy—though not asleep—before he had ordered them into the jury room. Defendant’s retained attorney, and the
prosecutor, also said that they had not seen a juror falling asleep or dozing. Defendant’s retained attorney suggested that
if the court had seen a juror dozing, he or she should be replaced by an
alternate; the prosecutor suggested that first the court should ask the juror
whether he had dozed off.
When asked,
the juror said that his eyes were closed but he had “heard everything.†Defendant told the court, however, that “I
know that man right there, I seen him sleep on two occasions more than five
minutes,†and that the court had not seen it because “you were up there typing
or doing something.†The court
nevertheless concluded that the juror had not been asleep, and denied the
request that he be replaced.
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The court
then admonished defendant to control himself during the remainder of the
prosecution’s closing argument—which defendant promised to do, while continuing
to indicate that he had no confidence that his retained attorney would
adequately defend him. After questioning
the jury panel, the court also determined that although at least one juror had
heard defendant’s outburst and comment that jurors were falling asleep, that
would not affect their impartiality. The
prosecution then concluded its closing argument.
The jury
began deliberations shortly before lunch on June 7, 2010, announcing soon afterward that they had
reached a verdict. That afternoon it
announced its verdict finding defendant guilty on both counts. Defendant agreed to delay the determination
of his prior convictions and sentencing.
Beginning
with the next hearing a few days later, and continuing at subsequent hearings,
defendant’s retained counsel sought to be relieved as counsel because “[t]he
attorney client relationship has been destroyed by Mr. Lucas.â€
After considering whether defendant should represent himself
in pro. per. for the purpose of moving for a new trial and to handle sentencing,
or should be represented by new retained counsel or by the public defender,
defendant affirmed that he did not want to be represented at that point by the
public defender. The court relieved his
retained attorney as counsel, and defendant was appointed to represent himself
in pro. per.
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trial transcript in order to prepare his new trial motion, however, defendant
sought the public defender’s assistance.
The court then appointed the public defender to represent defendant, and
ordered preparation of a trial transcript.
On April 19, 2011, the public defender
filed a written motion for new trial. The motion argued that defendant’s
representation by his retained trial counsel was constitutionally deficient,
because counsel failed to present the testimony of an eyewitness identification
expert, counsel failed to file a Pitchess
motion, and counsel failed to make a meaningful
behalf. And the motion argued that a new
trial should be granted due to juror misconduct in sleeping during the trial,
due to the erroneous admission of Ms. Jones’s testimony concerning the
attempted carjacking in 2000, under Evidence Code section 1101, subdivision
(b), and because the verdict is against the weight of the evidence. On May
5, 2011, the court denied the new trial motion.
The court
sentenced defendant to 25 years in state
prison. As to the count 1
conviction, it ordered the upper term of five years in state prison doubled
because of the prior strike conviction.
The court enhanced this sentence by an additional 10 years, based on the
jury’s finding that defendant had personally used a firearm in the robbery, and
by another five years based on his prior “serious†felony conviction. (Pen. Code, § 667, subd. (a)(1).) The court stayed the count 2 conviction
pursuant to section 654; it credited defendant with 581 actual days and 87 days
of good time/work time credits;
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and it ordered him to pay various fines and fees.
On May 11, 2011, defendant filed his
DISCUSSION
Counsel appointed to represent defendant
in this appeal filed a brief raising no
issues. (People v. Wende (1979) 25 Cal.3d 436, 441-442.) On March 1, 2012, we advised defendant that he could submit by brief or letter any
grounds of appeal, contentions, or argument he wished this court to consider,
within 30 days. On March 12, 2012 we
received defendant’s three-page
response, asking the court to consider three topics: (1) that the trial court did not permit the
defense to impeach a prosecution witness with evidence of her prior conviction;
(2) that the prosecution gave the defense only a few days notice that the
witness would be testifying; and (3) that his attorney was incompetent.
We have conducted an independent review of the
record, as required by People v. Wende,
supra, 25 Cal.3d at p. 441. As explained below, we have determined that
neither the supplemental issues raised by defendant’s filing in this court nor
anything else in the record indicates that any issue constitutes an arguably
meritorious ground for reversal of the judgment or modification of the sentence
in this case. (People v. Kelly (2006) 40 Cal.4th 106, 109-110 [when court of
appeal affirms a judgment in a Wende appeal in which the defendant has
filed supplemental contentions, the appellate court’s opinion must reflect
those contentions and the reasons that they fail].) We therefore affirm the judgment.
The
Record Does Not Show An Erroneous Refusal To Permit Impeachment Of A
Prosecution Witness.
Defendant’s
supplemental filing in this court asks that we review the trial court’s refusal
to permit Ms. Jones to be impeached with evidence that she had a prior criminal
conviction. The record shows that after
the trial court had granted the prosecution’s request to present Ms. Jones’s
testimony under Evidence Code section 1101, subdivision (b), and shortly before
presenting her testimony, the prosecution disclosed that Ms. Jones’s rap sheet
indicated a February 1973 conviction for felony criminal conspiracy (apparently
resulting from a plea agreement involving narcotics charges), which had later
been expunged. After finding that in
1973 Ms. Jones would have been 20 or 21 years old, the court granted the
prosecution’s request to exclude evidence of the conviction under Evidence Code
section 352.
The law
affords the trial court broad discretion to determine the admission or
exclusion of such evidence, based on a conclusion that its probative value is
outweighed by the danger of undue prejudice, confusion, or misleading of the
jury, or the risk of undue consumption of time.
(Evid. Code, § 352.) We cannot
say that the trial court’s ruling excluding evidence of Ms. Jones’s 36-year-old
conviction constituted a clear abuse of its discretion in this case. (Pannu
v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.) Moreover, Mr. Ferrada and Deputy Mercado both
provided credible eyewitness testimony of defendant’s identity as the
perpetrator of the robbery, and the person who had fled while discarding the
money, the wallet, and the weapon that had been used in the robbery. This record does not indicate that Ms.
Jones’s credibility was critical to the identification of defendant as the
perpetrator of the crime, or to the determination of the intent with which he
had acted. In light of this, we cannot
say that a different result would have been probable if the defense had been
permitted to confront Ms. Jones with evidence of her prior felony conviction. (Ibid.
)
The
Record Does Not Show Error Or Prejudice In The Notice To The Defense That Ms.
Jones Would Testify.
Defendant’s supplemental
filing in this court suggests that he was prejudiced by the fact that the
defense had only a few days notice that Ms. Jones would be testifying. However, this contention, even if true, is
undermined by the absence of anything in the record showing how the defense
would have benefitted if it had learned earlier that Ms. Jones would testify,
or how it was prejudiced by its ignorance of that fact. Without that, even if there was error there
is nothing to show that appellant was prejudiced by it.
(Cal. Const., art. VI, § 13 [no reversal of judgment or new
trial unless error has resulted in miscarriage of justice];
[no miscarriage of justice or reversal where it appears the outcome would be
the same even in the absence of the error].)
The
Record Does Not Show That Defendant’s Retained Counsel Was Incompetent, Or
(Even If He Was) That Defendant Was Prejudiced.
We have reviewed the record in this case with a careful eye
toward defendant’s contentions that his retained attorney “lied to me about a
lot of things and was very incompetent in handling my caseâ€; that a thorough
review of the transcript of his trial proceedings would show “all types of
errors and inconsistenciesâ€; and that his conviction rests entirely on the
testimony of “a lying witness that they coerced and some lying law
enforcement.†We find, to the contrary,
that defendant’s conviction is strongly supported by the eyewitness testimony
of his robbery victim, and by Deputy Mercado’s fortuitous observation of
defendant fleeing the scene, abandoning the stolen phone and money, and
discarding the gun as he ran. Even
without the corroboration provided by Ms. Jones’s testimony and the testimony
about defendant’s spontaneous jailhouse statement that his girlfriend did not know of his
intent to “pitch,†we cannot conclude that the jury would have reached a
different result.
These determinations, and our conclusion
that neither error nor prejudice resulted from the circumstances discussed
above, lead us to conclude that the record does not support defendant’s contention that he was
prejudiced by any failure of his retained attorney to present a competent defense
on his behalf. Having undertaken an independent review of the record in
this case, we conclude that it reflects no arguably meritorious ground for
reversal of the judgment or modification of the sentence in this case. (People
v. Wende, supra, 25 Cal.3d at pp.
441-442.)
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
CHANEY,
J.
We concur:
MALLANO,
P. J.
ROTHSCHILD,
J.
The information was later amended without objection to correct the name of the charged offense’s victim, and the
date of defendant’s prior convictions to September
4, 2001 and September 30,
1998.
The court ordered the Marsden hearing
transcript “stricken and destroyed†in order to prevent disclosure of any
attorney-client communications.
