P. v. Morales
Filed 6/10/13 P. v. Morales CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEJANDRO JOSE MORALES,
Defendant and Appellant.
D061830
(Super. Ct.
No. SCD232698)
ORDER MODIFYING OPINION
AND DENYING REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is
ordered that the opinion filed herein on May 16, 2013, be modified
as follows:
1. On page 3, first sentence of the second
paragraph, the modifier "eight-month" in the phrase "eight-month
prison term sentence" is changed to "two-year" and the words
"and stayed" are inserted between the words "imposed" and
"for," so the sentence reads:
We conclude Morales's count 3 grand theft conviction,
the related $40 court security fee (§ 1465.8, subd. (a)(1)) and $40 criminal
conviction assessment (Gov. Code, § 70373), and the two-year prison term
sentence the court imposed and stayed for this count 3 conviction all must be
reversed, and on remand the court's sentencing minutes and the abstract of
judgment must be corrected accordingly.
2. On page 15, first sentence of the first
paragraph in the last clause beginning with "and the eight-month prison
term" and ending with "must be reversed," the modifier
"eight-month" is changed to "two-year" and the words
"and stayed" are inserted between the words "imposed" and "for,"
so the clause reads:
and the two-year prison term the court imposed and
stayed for Morales's unauthorized count 3 conviction also must be reversed.
3. In the first sentence of the Disposition on
page 22, the modifier "eight-month" in the phrase "eight-month
prison term sentence" is changed to "two-year" and the words
"and stayed" are inserted between the words "imposed" and
"for," so the sentence reads:
We reverse Morales's count 3 grand theft conviction, the
related $40 court security fee (§ 1465.8, subd. (a)(1)) and $40 criminal
conviction assessment (Gov. Code, § 70373), and the two-year prison term
sentence the court imposed and stayed for this count 3 conviction.
There is no
change in the judgment.
Respondent's
petition for rehearing is denied.
NARES,
Acting P. J.
Copies
to: All parties
Filed 5/16/13 P. v. Morales CA4/1 (unmodified version)
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.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEJANDRO JOSE MORALES,
Defendant and Appellant.
D061830
(Super. Ct.
No. SCD232698)
APPEAL from
a judgment of the Superior Court
of San Diego County,
John S. Einhorn, Judge. Reversed in
part, affirmed in part, and remanded with directions.
Cannon & Harris, and Donna L.
Harris 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, Senior
Assistant Attorney General, A. Natasha Cortina and Kimberley A. Donohue, Deputy
Attorneys General for Plaintiff and Respondent.
This case
arose out of a series of burglaries and thefts committed between late 2010 and
early 2011 at Nordstrom and Nieman Marcus department stores in San Diego
County. A jury convicted Alejandro Jose
Morales of one count of robbery (count 1: Pen. Code, § 211; undesignated
statutory references will be to the Penal Code), six counts of burglary (counts
2, 4, 6, 8, 10 & 12): § 459), and
six counts of grand theft of personal property (counts 3, 5, 7, 9, 11 &
13: § 487, subd. (a)).
was on parole at the time he committed the robbery (§ 1203.85,
subd. (b)). He also
admitted he had one prison prior (§§ 667.5, subd. (b), 668).
The court
struck the prison prior allegation that Morales admitted, and sentenced him to
an aggregate state prison term of five years four months, consisting of (1) the
lower term of two years for Morales's robbery conviction; plus (2) the middle
term of two years for his count 2 burglary conviction, which the court stayed
under section 654; plus (3) imposed but stayed two-year terms for each of his
six grand theft convictions (counts 3, 5, 7, 9, 11 & 13); plus (4)
eight-month terms (one-third the middle term) for each of his five remaining
burglary convictions (counts 4, 6, 8, 10 & 12). The court also ordered Morales to pay victim
restitution—jointly and severally with his codefendant Derrick Christophe
DeLeon—in the total amount of $10,875.50—$1,350 to Nieman Marcus and $9,525.50
to Nordstrom—plus various fines, fees and assessments.
Morales
appeals, contending (1) his count 3 grand theft conviction should be reversed
because it is a lesser included offense of the count 1 robbery he was convicted
of committing on February 11, 2011, at Neiman Marcus in the Fashion Valley
Mall; (2) the use of DeLeon's extrajudicial statements to police violated his
(Morales's) Sixth Amendment right to confront and cross-examine the witnesses
against him; and (3) the abstract of judgment should be corrected to reflect
that his obligation to pay victim restitution in the amount of $1,350 to Nieman
Marcus and $9,525.50 to Nordstrom is joint and several with codefendant DeLeon.
We conclude
Morales's count 3 grand theft conviction, the related $40 court security fee
(§ 1465.8, subd. (a)(1)) and $40 criminal conviction assessment (Gov.
Code, § 70373), and the eight-month prison term sentence the court imposed
for this count 3 conviction all must be reversed, and on remand the court's
sentencing minutes and the abstract of judgment must be corrected
accordingly. We also conclude the
portion of the judgment imposing on Morales joint and several liability with
DeLeon for victim restitution to Nieman Marcus and Nordstrom in the total
amount of $10,875.50 ($1,350 to Nieman Marcus and $9,525.50 to Nordstrom) must
be modified to reflect joint and several victim restitution liability with
DeLeon in the amount of $1,350 to Nieman Marcus for the offenses he and DeLeon
committed on February 11, 2011 (counts 1, 2 & 3) and $2,575 to Nordstrom
for the offenses they committed on September 27, 2010 (counts 12 & 13), for
a total joint and several victim restitution liability of $3,925. In all other respects, we affirm the judgment
and remand the matter with directions.
FACTUAL
BACKGROUND
A. The
People's Case
1.· February 11, 2011 Incident at Nieman Marcus (Fashion Valley Mall) (
The
prosecution presented evidence that on February 11, 2011, Morales and his
accomplice, DeLeon, entered Neiman Marcus in the Fashion Valley Mall in San
Diego with the intention of stealing two Gucci handbags. Suzanne Mason, a sales associate, testified
that DeLeon had previously entered the store a few days earlier on February 6,
and, when she became uncomfortable while speaking with him, she called a loss
prevention employee, Gabriel Jellison.
Jellison testified he received a phone call from a Mason that day
notifying him that two men in the store were acting suspiciously. He located the two men on the surveillance
cameras and started recording them.
Based on the video, Jellison identified the two men as Morales and
DeLeon.
According
to Mason, DeLeon returned to the store on February 11 accompanied by a tall man
she identified as Morales. Morales and
DeLeon separated as soon as they walked in.
Morales walked directly to the Gucci handbag department while DeLeon
garnered Mason's attention under the pretext of asking her for help to find a
handbag to purchase from a different section of the handbag department. Mason directed DeLeon to speak with another
sales associate, Mary McFadden, so she could walk over to Morales. When she entered the Gucci handbag
department, Mason asked Morales if he needed any help. Morales did not respond to her, but mumbled
"[f]uck" several times to himself as he was handling one of the Gucci
purses.
The purses
Morales was handling were secured to the display wall by means of a cable that
the store typically installs on their higher valued items. Mason testified she saw Morales take out a
knife-like tool and cut the cables.
Because he made her uncomfortable, Mason called Salomon Maya, the
store's assistant loss prevention manager.
Meanwhile, after having successfully cut the security cables to two
Gucci handbags, Morales took those two handbags and ran out of the north
entrance of the store towards a waiting car.
Maya, who
identified Morales at trial, watched Morales on the store's video surveillance
cameras and when Morales ran out of the store, he also ran out in an attempt to
detain Morales. When he reached the
sidewalk, Maya identified himself as "Nieman Marcus Loss Prevention"
and tried to take back the handbags Morales had taken. When he did so, Morales engaged in a struggle
and dropped one of the handbags he was holding.
At that same time, Maya felt a pain in his lower back, which caused him
to drop to a knee. Morales ran to a
waiting car with the other handbag, got in, and left.
Meanwhile,
according to McFadden, DeLeon saw Morales leave the store. DeLeon turned to McFadden, and sarcastically
said, "Oh, no, that just didn't happen." He then turned around and walked out of the
store. McFadden identified both Morales
and DeLeon at trial.
Maya, who
had just been injured, saw DeLeon get into the rear passenger side of the same
getaway car. Police recovered the
missing handbag, valued at $1,350, in March 2011 during a search of Morales's
home.
2.
The
prosecution also presented evidence that on January 1, 2011, Morales entered
the Nordstrom department store at Horton Plaza with the intention of stealing
Burberry jackets. Deborah Steinberg, a
salesperson, testified that when she approached Morales and asked him whether
he needed any assistance, he made eye contact with her but remained quiet. She showed him a particular jacket, but he
did not seem interested. Steinberg, who
had heard reports about the theft of Burberry jackets at her store as well as
the Fashion Valley Nordstrom, thought that Morales, who smelled of alcohol, was
acting suspiciously. Steinberg testified
that as she was about to call the store's loss prevention department, Morales
"picked up three Burberry jackets, turned to his left, and walked towards
the exit of the store." He walked
straight to the exit doors, and without paying, left with the jackets, which
were valued at $1,185 ($395 each).
Steinberg later identified Morales both at a photographic lineup and at
trial.
The store's
loss prevention manager, Jesse Ochoa, testified that after he received the
telephone call from Steinberg about a man who was walking toward the exit with
three jackets, he reviewed the surveillance video recording and saw the man
Steinberg had described as the man was walking out of the store. The video was played for the jury. Ochoa identified Morales at trial.
3. November
29, 2010 incident at Nordstrom (Fashion
Valley Mall) (counts 6 & 7)
Next, the
prosecution presented evidence that about one month earlier, on November 29,
2010, Morales entered the same Nordstrom at Fashion Valley Mall with the
intention of stealing Burberry coats.
Mandy Strauss, a sales manager working there with her assistant, Marisha
LaHaye, testified that when she approached Morales to see if he needed any help
finding something, he was standing at a sales rack where the Burberry coats
were hanging, rearranging the hangers in a manner that would make it easier for
him to pick up multiple items at once.
Strauss and LaHaye watched as Morales took four coats off of the rack
and began walking, then jogging towards the door.
When
Strauss realized that Morales was jogging toward the door, she said, "Hey,
you can't do that." She walked after
him and called the loss prevention department.
Morales left the store without paying for the jackets, which were each
valued at $395, for a total value of $1,580.
LaHaye
identified Morales at trial. Strauss
also identified Morales at trial, but acknowledged she did not recognize him in
the courtroom during the preliminary hearing, and she was unable to identify
him in a photographic lineup on January 31, 2011.
4. November
9, 2010 incident at Nordstrom (Fashion
Valley Mall) (counts 8 & 9)
The prosecution
also presented evidence that about three weeks earlier, on November 9, 2010,
Morales entered the same Nordstrom store with the intention of stealing
merchandise. Andrew Davidson, a loss
prevention manager, testified that as he was using the security cameras located
within the store, he zoomed in on Morales and saw him exiting the store through
the second floor west exit with several items of merchandise placed over his
arm. Davidson then exited through the same
doors near the adjacent parking structure where he waited for about 10 to 15
minutes. Davidson then began to walk
down the staircase of the parking structure, where he passed Morales, who threw
away a beer can in a brown paper bag.
Davidson saw appellant reenter the store, grab some more merchandise,
and walk out of the store. Davidson
notified additional loss prevention employees and followed Morales out of the
store. Morales began running as soon as
he exited the store, and Davidson lost sight of him shortly thereafter.
Nordstrom
employees conducted an inventory and determined that Morales had stolen seven
items: five coats valued at $399.90 each
and two fur vests valued at $498 each, for a total value of $2,995.50.
Davidson
testified he later collected the beer can that Morales had thrown away and gave
it to a police officer. Criminalist
Coral Luce testified she performed DNA testing on the beer can. Luce developed a DNA profile for a single
individual from genetic material on swabs taken from the mouth area of the can
that matched Morales's DNA profile. Luce
calculated that the probability that a random individual would possess the same
DNA profile was one in 150 quintillion for the Hispanic population.
5.
October 11, 2010 incident at
Nordstrom (Fashion Valley Mall) (
The
prosecution also presented evidence that about a month earlier, on October 11,
2010, Morales entered Nordstrom at Fashion Valley Mall with the intention of
stealing Burberry jackets. Davidson, who
was working in the loss prevention office, testified he received a call from an
employee on the sales floor who reported that Morales had picked up some
merchandise and was walking away with it.
Davidson immediately went to the sales floor to conduct a live observation. Seeing Morales leave the store without paying
for the merchandise, Davidson followed him outside to the parking
structure. Davidson later went to Studio
121, the department from which Morales had stolen the merchandise, and
confirmed with the sales associates in that department that Morales had stolen
one Burberry jacket worth $495 and another Burberry jacket worth $695, for a
total of $1,190.
6.
September 27, 2010 incident at
Nordstrom (Fashion Valley Mall) (
The
prosecution also presented evidence that about two weeks earlier, Morales and
his accomplice DeLeon entered the same Nordstrom store on September 27, 2010,
with the intention of stealing Burberry clothing. Morales entered the Special Occasion
department in the store and, together with DeLeon, took five Burberry
items: three Burberry coats, each valued
at $795, and two Burberry shirts, each worth $95, for a total value of
$2,575. After sales associates reported
the theft to Annette Lewis, a loss prevention employee, Lewis reviewed the
surveillance video from that department and observed two males (Morales and
DeLeon) taking the merchandise without paying for it. The video was played for the jury. She contacted San Diego Police Department and
confirmed with the sales associates that an inventory of the store reflected
the five missing pieces of merchandise.
7.
Detective
Jose Perez of the San Diego Police Department was assigned to the investigation
of the September 27, 2010 incident.
Through his investigation, Detective Perez identified DeLeon as a
suspect and interviewed him about the theft.
Detective Perez testified that DeLeon admitted he was involved in the
September 27 theft at Nordstrom in Fashion Valley and that he stole a jacket in
order to pay his rent.
8.
On March 1,
2011, detectives and officers from the San Diego Police Department executed a
search warrant at Morales's home in Chula Vista. When they arrived, Officer Eric Stafford was
stationed at the rear exit of the home from where he saw Morales, who was
barefoot and in boxer shorts, exit the building and begin to run away. Morales complied when Officer Stafford
ordered him to stop. During the search
of Morales's home, officers found the Gucci handbag that had been stolen from
Neiman Marcus on February 11, 2011. They
also found and confiscated Morales's Blackberry telephone. When they examined the data contained on the
telephone, they found multiple pictures of the handbag, multiple pictures of
Morales with DeLeon, and multiple text messages showing that Morales had
attempted to sell the Gucci handbag.
B.
Neither
Morales nor DeLeon testified. Morales
called two witnesses—his grandmother, Carmen Brown, and his aunt, Andrea
Chavez—to testify about his health at the time of the crimes. They both testified Morales had been sick and
suffered a collapsed lung. He was
hospitalized and underwent lung surgery in January 2011.
On
cross-examination, Brown acknowledged that during the period from September
2010 to January 2011, Morales was able to walk and was healthy enough to
work. She financially assisted
Morales. Brown also testified that
Morales was able to walk when he got out of the hospital.
DISCUSSION
I. COUNT 3
GRAND THEFT CONVICTION
Morales
contends his count 3 grand theft conviction should be reversed because it is a
lesser included offense of the count 1 robbery he was convicted of committing
on February 11, 2011, at Neiman Marcus in the Fashion Valley Mall. We agree and conclude Morales's count 3 grand
theft conviction must be reversed.
A. Applicable Legal Principles
Section 954
generally permits multiple convictions for different offenses arising out of
the same act or course of conduct.
name="_ftnref2" title="">[2] (People v. Reed, supra, 38 Cal.4th at
pp. 1226-1227.)
"However,
an exception to this general rule allowing multiple convictions prohibits
multiple convictions based on necessarily included offenses." (People
v. Medina (2007) 41 Cal.4th 685, 701.)
Under this exception, "multiple convictions may not be based on
necessarily included offenses arising out of a single act or course of
conduct." (People v. Lewis (2008) 43 Cal.4th 415, 518.) A lesser offense is necessarily
included within a greater offense if the greater offense cannot be committed
without also committing the lesser offense.
(Ibid.; People v. Sanchez (2001) 24 Cal.4th 983, 988,
overruled on another point in People v. Reed, supra, 38 Cal.4th at pp. 1228-1229.)
The rule
prohibiting convictions for both a greater offense and a necessarily included
lesser offense is based on the rationale that if the greater offense cannot be
committed without committing the lesser, conviction of the greater is also
conviction of the lesser, and thus to permit conviction of both offenses would
allow the defendant to be convicted twice of the lesser offense. (People v. Medina,
Grand theft
"is a necessarily included offense of robbery," and it is "[a]
well-established rule that a defendant may not be convicted of both robbery and
grand theft based upon the same conduct."
(People v. Ortega, supra, 19 Cal.4th at p. 699.)
B.
In support
of his claim that his count 3 grand theft conviction should be reversed because
it is a lesser included offense of the count 1 robbery he was convicted of
committing on February 11, 2011, at Neiman Marcus, Morales argues that Nieman
Marcus was the victim of the theft of the handbags inside the store, and it was
also the named victim of the robbery he committed when he and Maya, the store's
assistant loss prevention manager, struggled over the handbags outside the
store. Citing People v. Estes (1983)
147 Cal.App.3d 23 (Estes),
Morales asserts he "committed theft when he removed the handbags from the
store," and "[h]e was engaged in the asportation element of the
[grand] theft offense when he engaged in the use of force or fear in an attempt
to retain possession of the merchandise, thereby transforming the crime
committed to robbery." Citing People
v. Ortega, supra, 19 Cal.4th 686, he also argues that "[t]he
grand theft charged in count [3] was a necessarily lesser included offense of
the robbery charged in count [1] because [he] could not have committed the
robbery without also committing the theft"; and, thus, his count 3
conviction must be reversed "because he may not stand convicted of both a
greater and a lesser included offense."
We agree.
Estes is virtually on point and
governs our decision. In that case, a
department store security guard observed the defendant take some items of
merchandise and leave the store without paying for them. (Estes, supra, 147 Cal.App.3d at p.
26.) Nothing in that case suggests the
defendant used "force or fear" (see § 211) at the time he took
possession of the merchandise inside the store.
(See Estes, supra,
at p. 26.) When the security guard
followed the defendant outside the store to the parking lot, he identified
himself and attempted to detain the defendant.
(Ibid.) The defendant
pulled out a knife and threatened to kill the guard, who returned to the store
for help. (Ibid.) A jury convicted the defendant of both
robbery and petty theft arising out of the theft of the merchandise from the
store. (Ibid.)
On appeal,
the Estes court—noting
that the guard, who was employed to prevent thefts of merchandise, had
"constructive possession" of the merchandise to the same degree as a
salesperson—upheld the defendant's robbery conviction because "[t]he
evidence establishe[d] that [he] forc[i]bly resisted the security guard's efforts to retake the property and used that force to remove the items from the guard's immediate presence." (Estes, supra, 147 Cal.App.3d
at p. 27.) However, the Estes court reversed the petty
theft conviction, holding that the theft "was a lesser included offense to
the robbery." (Id. at
p. 29.)
Similarly
here, substantial evidence (discussed, ante,
in the factual background) shows Morales committed the grand theft charged in
count 3 by taking possession of the two Gucci handbags in question inside the
Nieman Marcus store and leaving without paying for them, and then committed the
robbery charged in count 1, based upon the same larcenous course of conduct, by
forcibly resisting Maya's
efforts to retake the property,
and using that force to remove
one of the stolen handbags from Maya's immediate
presence.
Thus, we
conclude Morales's count 3 grand theft conviction must be reversed because that
crime is a lesser offense necessarily included in his count 1 robbery
offense. (See Estes, supra, 147
Cal.App.3d at p. 29; see also People v. Ortega, supra,
19 Cal.4th at p. 699 ["[A] defendant
may not be convicted of both robbery and grand theft based upon the same
conduct."].)
We also
conclude that as a result of the reversal of Morales's count 3 conviction, the
court security fee (§ 1465.8, subd. (a)(1)) that the court imposed in the
total amount of $520 based on his conviction of 13 counts in this matter,
should be reduced by $40 ($520 ÷ 13 = $40) to $480; the $390 criminal
conviction assessment (Gov. Code, § 70373) should be reduced by $30 ($390
÷ 13 = $30) to $360; and the eight-month prison term the court imposed for
Morales's unauthorized count 3 conviction also must be reversed. The matter must be remanded with directions
to the trial court to correct its March 16, 2012 sentencing minutes and to forward
a corrected abstract of judgment to the Department of Corrections and
Rehabilitation, as necessary.
II. EVIDENCE
OF DELEON'S EXTRAJUDICIAL STATEMENTS
Morales
also claims the use of DeLeon's extrajudicial statements to police violated
Morales's Sixth Amendment right to confront and cross-examine the witnesses
against him. This claim is unavailing.
A.
At trial,
the prosecutor elicited from Detective Perez testimony about a police interview
of Morales's codefendant, DeLeon, during which DeLeon admitted to Detective
Perez and another officer that he was involved in both the Nieman Marcus
burglary on February 11, 2011, and the Nordstrom burglary on September 27,
2010. Perez testified he showed DeLeon a
photograph of a Burberry jacket and a polo shirt similar to the items taken
from Nordstrom on September 27, 2010.
DeLeon admitted he took the Burberry jacket and said he "used it to
pay for rent, in exchange for rent."
DeLeon also told Detective Perez he was at Nordstrom that day to serve
as a lookout or distraction. Detective
Perez also testified that DeLeon recognized himself in two photographs taken
from a surveillance video showing DeLeon inside the Nordstrom store on
September 27, 2010. In response to
seeing these photographs, DeLeon stated, "Damn. I told that fool."
DeLeon's
trial counsel cross-examined Detective Perez about several specific statements
DeLeon made during his interview with police.
DeLeon's counsel read several excerpts of the transcript of DeLeon's
police interview and asked Detective Perez whether DeLeon made those
statements. Those statements included:
(Referring to the February 11, 2011 incident at Nieman
Marchus at the Fashion Valley Mall
"You know what. I'm a
man. I got balls. That's me.
Hey, I went in the store. I went
in there clueless. I didn't know what
the fuck was going on. Bam, bam,
bam. Everything was over. Before I know it, before I found out, I found
myself at the fucking trolley stop waiting for the trolley."
(When asked about the struggle that "Mr.
Morales" got into at Nieman Marcus that day
"I didn't see that part. All I know is that I barely caught them intime to hop in the car. They were
driving off and trying to leave me[]."
"Check it out.
I get in the car. They're arguing
over some fucking bag . . . . I don't want nothing to do with this."
(When asked how many times he hit "the guy"
(Maya) in the back
"I don'tknow. Like I told you, I was coming out
of the store. They were already driving
off, and I barely made it to the car."
"But if you all have the video, that video is going
to show you that I didn't even hit the dude at all. It's going to show you that I ran straight to
the car. It was driving, taking
off."
"I didn't lay hands on him. I swear to God it wasn't me. When I got out the door they were already in
the car."
"I went to be a distraction."
"Putting all bullshit to the side, man, this is
what happened. I was like—I'm in the
store, yadda, yadda, yadda. All of a
sudden I hear a bunch of people yell. I
see everyone running to the front. I
walked out. I see in the Guess lot dude,
like spin off one bag, then the car, and I start running after. So I get in the car, you know."
The
prosecutor objected to this line of questioning, stating that DeLeon's counsel
should not "be allowed to testify under Aranda/Bruton"
name="_ftnref3" title="">[3] in
light of the court's order limiting the admission of such statements. He also stated, "[T]hey're a random
group and they all involve his discussion about the other defendant
[(Morales)]."
After
hearing argument from counsel, the court sustained the prosecutor's objection
and directed DeLeon's counsel to move on to a different line of
questioning. Morales's trial counsel
moved to strike "anything related to [Morales]," and stated, "In
other words, the name Alex or Alejandro or Morales that was brought out in
[Detective Perez's] testimony." The
court did so, instructing the jury, "You're instructed to disregard any
question or any answer wherein reference was made to Alex Morales, Mr. Morales,
or Alejandro Morales. Treat it as though
you had not heard it."
B.
1. Aranda-Bruton and the Sixth Amendment right
of confrontation
"The
confrontation clause of the Sixth Amendment to the federal Constitution, made
applicable to the states through the Fourteenth Amendment, provides that '[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.' The right of confrontation includes
the right of cross-examination." (People
v. Fletcher (1996) 13 Cal.4th 451, 455 (Fletcher).)
A recurring
problem in the application of the Sixth Amendment right of confrontation
concerns an out-of-court statement by one defendant that incriminates both that
defendant and a jointly charged codefendant.
(Fletcher, supra, 13 Cal.4th at p. 455.) "Generally,
the [out-of-court statement] will be admissible in evidence against the
defendant who made it (the declarant)."
(Ibid., citing Evid. Code, § 1220 [hearsay exception for party
admissions].) However, if the declarant
does not submit to cross-examination by the codefendant (the nondeclarant),
"admission of the [out-of-court statement] against the nondeclarant is
generally barred both by the hearsay rule (Evid. Code, § 1200) and by the
confrontation clause (U.S. Const., 6th Amend.)." (Fletcher, supra, 13 Cal.4th at
p. 455.)
The
California Supreme Court has explained in Bruton supra, 391 U.S. 123 that "[t]he United States
Supreme Court . . . held that, because jurors cannot be
expected to ignore one defendant's confession that is 'powerfully
incriminating' as to a [codefendant] when determining the latter's guilt,
admission of such a confession at a joint trial generally violates the
confrontation rights of the nondeclarant."
(Fletcher, supra, 13 Cal.4th at p. 455, citing Bruton, at pp. 126-137.) In Aranda, supra, 63 Cal.2d 518, the
California Supreme Court reached a similar conclusion on nonconstitutional
grounds. (Fletcher, at p. 455,
citing Aranda, at pp. 528-530.)
Thus, at a
joint trial, Aranda and Bruton
bar admission of a nontestifying—defendant's out-of-court statement that
incriminates a codefendant, even if the court instructs the jury to consider
the statement in determining the guilt only of the declarant, because admission
of the statement violates the codefendant's Sixth Amendment right of
confrontation. (Bruton, supra, 391 U.S. at
pp. 126, 135-137; Aranda, supra, 63 Cal.2d at pp. 529-530; Fletcher,
supra, 13 Cal.4th at p. 455; see 5 Witkin & Epstein, Cal. Criminal Law (3d
ed. 2000) Criminal Trial, §§ 375-379, pp. 541-545.)
Aranda-Bruton error is not reversible per
se, but is scrutinized under the harmless-beyond-a-reasonable-doubt standard of
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (People v. Burney (2009) 47 Cal.4th
203, 232.) Under the Chapman
harmless error standard, "an otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475
U.S. 673, 681; see Chapman, supra, at p. 24.) In determining whether evidence improperly
admitted in violation of Aranda-Bruton
so prejudiced a defendant that reversal of the judgment of conviction is
required, the error will be deemed harmless "'if the properly admitted
evidence is overwhelming and the incriminating extrajudicial statement is
merely cumulative of other direct evidence.'" (People v. Burney, supra, at p.
232.)
C.
We shall
assume, for purposes of analysis, that some of the out-of-court statements
DeLeon made to Detective Perez were admitted in violation of the Aranda-Bruton rule (discussed, ante) by implicating
Morales in the crimes committed during the February 11, 2011 incident at Nieman
Marcus in Fashion Valley Mall (counts 1-3) and during the previous September
27, 2010 incident at Nordstrom in that mall (counts 12 & 13).
assumed constitutional error was harmless beyond a reasonable doubt under the Chapman harmless error standard; that is,
whether the properly admitted evidence of Morales's guilt is overwhelming and
any incriminating extrajudicial statements are merely cumulative of other
direct evidence. (See Delaware v. Van
Arsdall, supra, 475 U.S. at p.
681; Chapman, supra, 386 U.S. at p. 24; People v. Burney, supra,
47 Cal.4th at p. 232.)
After
reviewing the entire record, we conclude the assumed Aranda-Bruton error was harmless beyond a reasonable
doubt. Three separate eyewitnesses—Mason,
McFadden, and Maya—identified Morales at trial as the person who stole the
Gucci handbags from Nieman Marcus on February 11, 2011. Jellison, another Nieman Marcus loss
prevention employee, identified Morales and DeLeon at trial as the two men seen
suspiciously casing that store on February 6, 2011. The testimony of Officer Stafford and
Detective Christopher Leahy established that, during the search of Morales's
home, officers found the Gucci handbag that had been stolen from Neiman Marcus
on February 11, 2011. The police also
found and confiscated Morales's Blackberry telephone. Detective Perez's testimony established that
the data contained on the telephone was later examined, revealing multiple
pictures of the handbag, multiple pictures of Morales with DeLeon, and multiple
text messages showing that Morales had attempted to sell the Gucci
handbag. In addition, the jury saw
surveillance videos showing Morales (1) casing Nieman Marcus with DeLeon on
February 6, 2011; (2) taking the Gucci handbags inside that store on February
11, 2011; and (3) inside Nordstrom with DeLeon during the commission of the
crimes on September 27, 2010.
In sum, any
Aranda-Bruton error was
harmless beyond a reasonable doubt because the properly admitted evidence of
Morales's guilt was overwhelming and DeLeon's extrajudicial statements were
merely cumulative. (See People v.
Burney, supra, 47 Cal.4th at p. 232.)
III. ABSTRACT
OF JUDGMENT
Last,
Morales contends the abstract of judgment should be corrected to reflect that
his obligation to pay victim restitution in the amount of $1,350 to Nieman
Marcus and $9,525.50 to Nordstrom is joint and several with codefendant DeLeon.
The
Attorney General acknowledges, and we agree, that the abstract of judgment
should be corrected on remand to specify that Morales's joint and several
liability for victim restitution is limited to the amount of $1,350 to Nieman
Marcus for the offenses he and DeLeon committed on February 11, 2011 (counts 1,
2 & 3), and $2,575 to Nordstrom for the offenses they committed on
September 27, 2010 (counts 12 & 13), for a total joint and several
restitution liability of $3,925. The
court's March 16, 2012 sentencing minutes should also be corrected to reflect
these modifications.
DISPOSITION
We reverse
Morales's count 3 grand theft conviction, the related $40 court security fee
(§ 1465.8, subd. (a)(1)) and $40 criminal conviction assessment (Gov.
Code, 70373), and the eight-month prison term sentence the court imposed for
this count 3 conviction. We modify the
portion of the judgment imposing on Morales joint and several liability with
DeLeon for victim restitution to Nieman Marcus and Nordstrom in the total
amount of $10,875.50 ($1,350 to Nieman Marcus and $9,525.50 to Nordstrom), by
reducing that joint and several liability to the amount of $1,350 to Nieman
Marcus for the offenses he and DeLeon committed on February 11, 2011 (counts 1,
2 & 3), and $2,575 to Nordstrom for the offenses they committed on
September 27, 2010 (counts 12 & 13), for a total joint and several victim
restitution liability to Nieman Marcus and Nordstrom in the amount of
$3,925. In all other respects, the
judgment is affirmed. We remand the
matter to the trial court with directions to correct the court's March 16, 2012
sentencing minutes and the abstract of judgment to reflect these modifications
of the judgment, and to forward a certified copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
name="_ftn1" title="">[1] The same jury convicted Morales's codefendant, Derrick
Christophe DeLeon (DeLeon), who is not a party to this appeal, of counts 1, 2,
3, 12 and 13.
name="_ftn2" title="">[2] "Section 954 states that '[a]n accusatory pleading may
charge . . . different statements of the same offense' and
'the defendant may be convicted of any number of the offenses
charged.' " (People v. Ortega (1998) 19 Cal.4th 686, 699, disapproved on
another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229,
1231.)
