Filed
9/11/13 P. v. Maiden CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
SIDNEY MAIDEN,
Defendant and
Appellant.
F064016
(Super.
Ct. No. BF134357A)
APPEAL from
a judgment of the Superior Court of
John
Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William
K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found appellant Sidney Maiden guilty of
(a)),
title="">[1]
(b)), attempted carjacking (§§ 664/215, subd. (a)),
664/212.5, subd. (b)), second degree robbery (§ 212.5, subd. (c)), possession
of a firearm by a felon (§ 12021, subd. (a)(1)), and active participation in a
criminal street gang (§ 186.22, subd. (a)).
True findings were returned with respect to gang-related enhancements
(§186.22, subd. (b)(1)) and allegations of firearm use (§§ 12022.5, subd (a),
12022.53(b), (e)(1).) Maiden was
sentenced to 25 years to life in prison.
Three issues are raised in this appeal, none of which have merit. A challenge is made as to the sufficiency of
evidence in support of Maiden’s convictions for attempted first degree robbery,
second degree robbery, and three counts of assault with a firearm. There are also allegations of prosecutorial
misconduct. Finally, Maiden claims
section 186.22, subdivision (a), is unconstitutional under the void for
vagueness doctrine. We affirm the
judgment.
FACTUAL AND PROCEDURAL
BACKGROUND
Maiden’s convictions arise from a series of events that occurred in
Bakersfield on October 27, 2010. At
approximately 8:30 p.m., Fernando Roman was carjacked at gunpoint in the
parking lot of Valley Plaza Mall. The
perpetrator forced Mr. Roman out of his green minivan, took his cell phone, and
drove off in the vehicle.
Shortly before 10:00 p.m., two men approached Goben and Veronica Vargas
while they were using a drive-through automated teller machine located on
Oswell Street. One of the men wore a
mask. The masked individual pointed a
gun at Veronica Vargas and demanded she lower the passenger side window of the
Vargas’ automobile. The second man tried
to gain entry from the opposite side of the car. Goben Vargas quickly shifted into drive and
“hit the gas,†allowing the couple to escape.
Within minutes of the encounter on Oswell Street, a similar incident
occurred nearby on Auburn Street. Two
men accosted Marilyn Aldana and Laura Sanchez in the parking lot of La Mina
Restaurant and stole their purses at gunpoint.
The men fled towards a green minivan occupied by a third
individual. The person inside opened the
door for the robbers and the car sped off after they jumped inside.
Fernando Roman’s minivan was recovered by police around midnight. Officers searched the vehicle and found
several items belonging to Marilyn Aldana and Laura Sanchez. The recovered items included credit cards,
debit cards, and cosmetics.
Further investigation led police to the home of Maiden’s cousin,
Dayshnay Fountain. Two suspects, Stephan
Cartwright and Michael Russell, were apprehended inside of Ms. Fountain’s
apartment. A search of the residence
uncovered a semi-automatic handgun, a face mask, a digital camera and cell
phone belonging to Laura Sanchez, and clothing matching the victims’
descriptions of the robbers.
Ms. Fountain reportedly told police that Cartwright and Russell had
been at her apartment earlier in the evening, but left at some point with
Maiden. She said Maiden arrived in a
vehicle she did not believe was his, and all three men departed in that
vehicle. Police began searching for
Maiden based on the information provided by Ms. Fountain.
At a field show-up conducted outside of Ms. Fountain’s apartment,
victims Marilyn Aldana and Laura Sanchez identified Cartwright and Russell as
the men who had robbed them. Mr. and
Mrs. Vargas could not positively identify the suspects but told police both men
matched the general appearance of their attackers in terms of height, weight,
and build. Goben Vargas also said that
the gun, mask, and a brown sweatshirt seized from Ms. Fountain’s apartment were
all the same as those worn and used by the perpetrators.
Meanwhile, Fernando Roman identified Maiden from a photographic
lineup. Maiden was located and taken
into custody in the early morning hours of October 28, 2010. He was found in possession of Mr. Roman’s
cell phone at the time of his arrest.
On June 1, 2011, the Kern County District Attorney filed an amended
criminal information charging Maiden with carjacking (Count 1), assault with a
firearm (Counts 2, 6, 9 & 10), attempted carjacking (Count 3), attempted
first degree robbery (Counts 4 & 5), second degree robbery (Counts 7 &
8), possession of a firearm by a felon (Count 11), and active participation in
a criminal street gang (Count
12). The amended information contained
enhancement allegations for gang association (Counts 1 through 11), personal
use of a firearm (Counts 1, 2, 3, 4, 5, 7, 8 & 12) and firearm use
liability as a principal in the commission of a felony offense (Counts 3, 4, 5,
7 & 8). Further enhancements were
alleged pursuant to sections 667 and 667.5 but were subsequently dismissed at
the request of the prosecutor.
The amended information charged Stephan Cartwright and Michael Russell
with the same crimes alleged under Counts 3 through 12. Maiden was the only person accused of
carjacking and assaulting Fernando Roman under Counts 1 and 2. The trial court later granted a motion to
sever the trial of Russell from that of his co-defendants. Maiden and Cartwright were tried jointly in a
two-week jury trial that began in August 2011.
All five victims testified as prosecution witnesses at Maiden’s trial,
as did several officers from the Bakersfield Police Department. Officer Matthew Gregory served as the
prosecution’s gang expert. Among other testimony,
Officer Gregory provided background information regarding the criminal street
gang known as the Bloods and opined that Maiden and Cartwright were active
members of the gang.
Dayshnay Fountain was called as a prosecution witness, but she
contradicted police testimony by denying Maiden had come to her home on the
night in question. She also denied
telling investigating officers that Cartwright and Russell were picked up by
Maiden in a vehicle. According to Ms.
Fountain, Cartwright left her apartment on foot at approximately 9:50 p.m. and
Russell departed shortly after 10:00 p.m.
Maiden’s sister, Shataree Scoggins, was called as a defense
witness. She testified Maiden was at
home with her and several family members on the evening of October 27, 2010 and
had fallen asleep on a couch in the living room by 9:30 p.m. His sister also claimed that Russell, who is
her cousin, gave her Fernando Roman’s stolen cell phone earlier that day,
“before it even became nighttime.†Ms.
Scoggins left the phone on a coffee table next to Maiden before she went to
bed, thus explaining why it was found in his immediate vicinity at the time of
Maiden’s arrest.
Maiden was acquitted of attempted carjacking with respect to Goben and
Veronica Vargas as alleged in Count 3.
He was convicted on all remaining counts. The jury returned true findings on the gang
enhancement allegations for all convictions under Counts 1 through 11 and for
personal use of a firearm under Counts 1, 2, and 12. Firearm enhancement allegations based on his
participation as a principal in the offenses charged under Counts 4, 5, 7 and 8
were also found to be true.
The trial court sentenced Maiden to an indeterminate term of 15 years
to life for carjacking under Count 1, plus a 10-year consecutive sentence as
required by section 12022.53, subdivision (b), for personal use of a
firearm. Concurrent sentences ranging
from 4 years to 17 years were imposed for the convictions and enhancements
under Counts 4, 5, 7 and 8. Additional
sentences imposed under Counts 2, 6, 9, 10, 11 and 12 were stayed pursuant to
section 654.
The
Convictions are Supported by Substantial Evidence
Maiden does not dispute the sufficiency of evidence in support of his
convictions relating to the carjacking of Fernando Roman, his unlawful
possession of a firearm, or active participation in a criminal street
gang. He contends the requisite proof
was lacking as to the charges under Counts 4 through 10, i.e., the crimes
committed against Marilyn Aldana, Laura Sanchez, and the Vargas family. More specifically, Maiden asserts “[t]here
was no evidence that [he] was present during any of those crimes, or that he
actively encouraged, aided or abetted in their commission.†His position is untenable.
There are no missing links in the chain of
to the crimes for which he was convicted.
While some links may have been weaker than others, the evidence was
sufficient to support multiple theories of liability, including his role as the
driver who transported Cartwright and Russell to and from the locations where
the offenses occurred. Maiden’s
arguments to the contrary ignore pertinent trial testimony and the applicable
standard of review.
“A substantial evidence inquiry examines the record in
the light most favorable to the judgment and upholds it if the record contains
reasonable, credible evidence of solid value upon which a reasonable trier of
fact could have relied in reaching
the conclusion in question.†(
1038, 1052, italics in original.)
Reversal is not warranted unless the evidence is insufficient to support
the verdict under any hypothesis. (
331.) This standard applies in cases, such as this one, where the prosecution
relies primarily on circumstantial evidence.
(People v. Zamudio (2008) 43
Cal.4th 327, 357.)
“Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant’s guilt beyond a reasonable
doubt.†(People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) If the jury rejects the interpretation
pointing to innocence, and there is competent evidence to support a finding of
guilt as the more reasonable conclusion, we are bound by the jury’s
decision. (People v. Towler (1982) 31 Cal.3d 105, 118.) We cannot reweigh
the evidence, reinterpret the evidence, or substitute our own judgment for that
of the jury. (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
Maiden emphasizes the enhancement allegations for
personal use of a firearm under Counts 4 through 10 were found to be
untrue. He thus concludes “that the jury
did not convict him as a perpetrator, but as an aider and abettor in those
offenses.†His reasoning on this point
is sound, but it does not support any arguments for reversal.
Aiding and abetting liability exists “when a person who
does not directly commit a crime assists the direct perpetrator by aid or
encouragement, with knowledge of the perpetrator’s criminal intent and with the
intent to help him carry out the offense.â€
(People v. Miranda (2011) 192
Cal.App.4th 398, 407 (Miranda).) One who “promotes, encourages or instigates
the commission of the crime†may be characterized as an aider and abettor. (People
v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Likewise, any person who is “present for the purpose of diverting
suspicion, or to serve as a lookout, or to give warning of anyone seeking to
interfere, or to take charge of an automobile and to keep the engine running,
or to drive the getaway car and to give direct aid to others in making their
escape from the scene of the crime, is a principal in the crime committed.†(People
v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743-744, internal quotation
marks omitted.)
The decision to aid and abet may occur in the spur of the
moment, and the assistance provided need not be a substantial factor in the
offense. (People v. Nguyen (1993) 21 Cal.App.4th 518, 532.) “[A]ny person concerned in the commission of
a crime, however slight that concern may be, is liable as a principal in the
crime.†(Ibid., citations omitted.)
Companionship and conduct before and after the offense are relevant
considerations in the liability analysis.
(People v. Haynes (1998) 61
Cal.App.4th 1282, 1294.)
Based on the facts and circumstances recounted above,
there was substantial evidence linking Cartwright and Russell to the crimes at
issue. Maiden had close ties to both
individuals. As to Cartwright, the prosecution established a common membership
in the Bloods street gang. There was
also evidence of Russell’s membership in the Bloods, as well as a familial
relationship between him and Maiden.
The prosecution’s evidence indicated Cartwright and Russell were
traveling in a vehicle with Maiden prior to committing the crimes alleged in
Counts 4 through 10. The attempted
robbery of Goben and Veronica Vargas, and the offenses involving Marilyn Aldana
and Laura Sanchez, occurred in very close proximity of time and location. The robbers were seen fleeing in a green
minivan occupied by a third individual.
It was up to the jury to decide whether that third person was Maiden, or
a nameless perpetrator who somehow managed to evade capture and suspicion.
The jury reasonably could have inferred a scenario in which Maiden
carjacked the minivan and then met up with his fellow gang members, encouraging
them to commit additional crimes with him and/or with his assistance. Jurors apparently believed Maiden used the
stolen vehicle to drive Cartwright and Russell to and from the locations where
the subsequent offenses occurred.
Assuming the role of a getaway driver, Maiden logically would have
served as a lookout while his cohorts engaged in their crime spree. This hypothesis is supported by the testimony
of Laura Sanchez, who said the man in the green minivan was waiting for
Cartwright and Russell and helped facilitate their escape. The cumulative impact of the evidence was
sufficient to allow the jury to conclude, without doubt, that Maiden aided and
abetted the crimes charged under Counts 4 through 10.
No Basis for Reversal on Grounds of Prosecutorial Misconduct
Maiden argues for complete reversal of the judgment on grounds of
prosecutorial misconduct. The misconduct
allegedly occurred during closing argument and rebuttal. Maiden contends the prosecution argued facts
not in evidence by stating that “Mr. Maiden’s name came up†while police were
at the home of Dayshnay Fountain. Maiden
further claims his constitutional rights were violated when the prosecution
highlighted the fact that certain individuals did not testify in his defense at
trial.
The record disproves the first contention. Officer Nicole Shirer testified regarding her
conversations with Dashnay Fountain on October 28, 2010 and Ms. Fountain’s
reaction to the discovery of a mask, a gun, and stolen property inside of her
apartment: “She became very upset. She
began to shake and to cry… She said at about 7 o’clock in the evening, Sidney –
a subject she told me was Sidney Maiden arrived at her residence. And shortly thereafter, Cartwright – Mr.
Cartwright, Mr. Russell and Mr. Maiden all left together.â€
The prosecution did not resort to matters outside of the record by
arguing Maiden’s name “came up†and “somebody in that household mentioned
him.†Moreover, according to the
testimony of Officer Shirer, the statements were accurate.
The remaining arguments ultimately pertain to the testimony of Maiden’s
sister, Shataree Scoggins. As previously
discussed, Ms. Scoggins testified regarding Maiden’s whereabouts on the evening
of October 27, 2010. Maiden had
allegedly fallen asleep by 9:30 p.m. inside a home occupied by several family
members, including his mother.
Ms. Scoggins also claimed to have told their mother, at the time of
Maiden’s arrest, that the cell phone belonging to Fernando Roman was given to
her by Michael Russell. Her mother
allegedly asked why she did not explain this to the police officers, to which
Ms. Scoggins replied, “They didn’t ask me.â€
The prosecution remarked upon the believability of Ms. Scoggins’ story
during closing argument and the fact that Maiden’s mother did not testify in
her son’s defense. Advance notice was
provided to the trial court and defense counsel that such comments would be
made. When closing arguments were presented, the trial court reminded jurors
the defense had no burden of proof and was thus under no obligation to produce
witnesses. The prosecution acknowledged this
as well, albeit in a less formal manner (“I have the burden folks….They don’t
have to prove a damn thingâ€).
We find no legal error in the prosecutor’s remarks. “[A] prosecutor may comment on the absence of
logical witnesses to rebut the People’s or corroborate the defendant’s
case.†(People v. Stevens (2007) 41 Cal.4th 182, 210.) In light of his sister’s testimony, Maiden’s
mother was a logical witness. “[I]t is
neither unusual nor improper to comment on the failure to call logical
witnesses.†(People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) This principle vitiates Maiden’s claim of
prosecutorial misconduct.
The case of People v. Gaines
(1997) 54 Cal.App.4th 821 (Gaines),
on which Maiden relies, is inapposite.
In Gaines, the defendant took
the stand and offered an alibi defense, identifying a particular witness in the
courtroom who was expected to testify to facts corroborating his version of the
events. (Gaines, supra, 54
Cal.App.4th at pp. 823-824.) The witness
did not end up testifying. (
During rebuttal, the prosecutor speculated as to what the absent
witness would have said had he testified, asserting the testimony would have
contradicted that of the defendant. The
prosecutor also accused defense counsel of essentially hiding the witness and
obstructing the prosecution’s ability to call him for impeachment
purposes. (Gaines, supra, 54
Cal.App.4th at pp. 824-825.) The
appellate court found these arguments went beyond the evidence in the record
and rose to the level of prosecutorial misconduct. (Id.
at pp. 825-826.)
The Gaines opinion holds
“that a prosecutor commits misconduct when he purports to tell the jury why a
defense witness did not testify and what the testimony of that witness would
have been.†(Gaines, supra, 54
Cal.App.4th at p. 822.) Such behavior
did not occur in this case. The
prosecution limited its comments to evidence in the record and permissibly
noted Maiden’s decision not to call logical witnesses.
Section
186.22 is not Unconstitutionally Vague
Section 186.22, subdivision (a), proscribes active participation in a
criminal street gang. Maiden challenges
the constitutionality of the statute, arguing it is void for vagueness because
the term “gang†and the concept of active participation are ambiguous. In People
v. Castenada (2000) 23 Cal.4th 743 (Castenada),
the California Supreme Court considered the meaning of the phrase “actively
participates in any criminal street gang,†as used in section 186.22. The high court concluded that the statute is
not unconstitutionally vague because “our Legislature has made it reasonably
clear what conduct is prohibited†and because nothing in the statutory language
would encourage “arbitrary or discriminatory law enforcement.†(Castenada,
supra, 23 Cal.4th at p. 752,
citations omitted.)
Maiden acknowledges that we are bound by the holding in
issue to preserve federal appellate review.
We would note for his benefit that the Eastern District of California
has rejected challenges to section 186.22 made on grounds of unconstitutional
vagueness. (See, e.g.,
U.S. Dist. LEXIS 47310, *85-89, 2009 WL 1460832, *30-31.) In any event, Maiden’s argument is devoid
Supreme Court.
The judgment is affirmed.
_____________________
Gomes, Acting P.J.
WE CONCUR:
_____________________
Kane, J.
_____________________
Detjen, J.
unless otherwise indicated.
