P. v. Rangel

Filed 2/11/10 P. v. Rangel CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEALS from judgments of the Superior Court of Los Angeles County. ORIGINAL PROCEEDING; petition for writ of habeas corpus. Robert M. Martinez, Judge. Judgments affirmed; petition denied.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Issac Gilbert Rangel.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Michael E. Perez.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

INTRODUCTION

Defendants Issac Gilbert Rangel (Rangel) and Michael Eugene Perez (Perez) appeal from judgments of conviction entered after a jury trial. Perez also petitions this court for a writ of habeas corpus. Rangel and Perez were both convicted of robbery (Pen. Code,[1]  211) and evading a peace officer (Veh. Code,  2800.2, subd. (a)). The jury further found true the allegation that during the commission of both offenses, a principal was armed with a firearm ( 12022, subd. (a)(1)). Rangel was also found to have personally used a firearm during the commission of the robbery ( 12022.53, subdivision (b)). Rangel was also convicted of possession of a firearm by a felon ( 12021, subd. (a)(1)).

Following the convictions, the trial court found true the allegations Rangel had a prior serious or violent felony conviction ( 667, subds. (a)(1), (b)-(i), 1170.12) and a felony conviction for which he served a prison term ( 667.5, subd. (b)). It sentenced Rangel to a total state prison term of 25 years: On the robbery conviction, he was given the high term of five years, doubled by virtue of the strike prior, plus 10 years for the personal use of a firearm, plus five additional years for the prior conviction. The trial court struck the prior prison term and principal armed enhancements as to that count. It imposed and stayed sentences on the remaining counts pursuant to section 654.

The trial court found true the allegations Perez suffered four prior strike convictions ( 667, subds. (b)-(i), 1170.12), three prior serious felony convictions ( 667, subd. (a)(1)) and five prior felony convictions for which he served separate prison terms ( 667.5, subd. (b)). The trial court denied his Romero[2] motion to strike the prior allegations and sentenced Perez to a total state prison term of 41 years to life. On the robbery conviction, Perez received 25 years to life plus one year for the principal armed enhancement. The sentence was also enhanced by five years for each of the three prior serious felony convictions. As to the evading conviction, the sentence was stayed pursuant to section 654. The trial court struck the prior prison term enhancements.

On appeal, counsel for Rangel has filed a Wende[3] brief, inviting us to review the record independently for error. Perez in his appeal and petition for writ of habeas corpus raises a number of contentions, including ineffective assistance of counsel and evidentiary and instructional error. We affirm the judgments and deny the petition for writ of habeas corpus.

FACTS

On February 23, 2008, at approximately 10:00 p.m., Jose Gomez (Gomez) was eating dinner in the bar area of the Sabor A Casa Restaurant in West Covina when a guy came in dressed all in black wearing a hoodie and he had his face covered up with a bandanna. The man, later identified as defendant Rangel, pointed a gun at the register, and the waiter opened it and put the money on the counter. Rangel grabbed the money and left. Gomez flagged down a police officer and told him what had happened.

Alvaro Rodrijuez (Rodrijuez) was the waiter working at the time of the robbery. He indicated that the robber wore a black jacket and black pants. The robber was approximately six feet and two or three inches tall, 190 to 200 pounds, and was holding a black .45 caliber automatic handgun.

On February 25, 2008, Rodrijuez met with a police detective and was asked to look at some photographs. He circled a particular photograph on a photographic lineup (Peoples Exhibit 2). On the photo circled, Rodrijuez wrote, I know because of the eyes.

Officer Gilbert Amis of the West Covina Police Department was the officer whom Gomez flagged down. Officer Amis drove into the parking lot behind the restaurant as headlights were turned on from a green Honda Civic. Officer Amis believed it to be the car in which the robber was intending to escape. He observed two people in the car. Perez was in the drivers seat, and Rangel was in the passenger seat, wearing a dark hoodie.

Officer Amis followed the vehicle. After it ran through a red light, he activated his lights and siren and went in pursuit. Other officers joined in the pursuit. The pursuit lasted approximately six minutes, with speeds reaching 60 to 70 miles per hour. When the Honda drove onto a dead end street, Officer Amis crashed into the Honda. Rangel exited the passenger door and ran.

Perez was pulled out of the car. Perez was fighting with the officers until Officer Amis subdued him with a Taser. Rangel was apprehended by a canine unit. He was wearing dark blue jeans, a black hooded sweatshirt, black knit gloves and white and blue Nikes. He was in possession of $299 in bills of various denominations, sorted from larger to smaller bills. He is five feet, ten inches tall.

During an inventory search of the Honda, officers found a pair of black leather and knit gloves, a black cloth beanie, a black scarf, a two-way radio, and shaved keys.

The defense presented no evidence.

DISCUSSION

A. Ineffective Assistance of Counsel

When a defendant raises a claim of ineffective assistance of counsel, he must establish that his counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsels unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. (In re Cudjo (1999) 20 Cal.4th 673, 687; accord, People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) The benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (In re Cudjo, supra, at p. 687; accord, Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].)

Perez claims three instances of ineffective assistance of counsel: allowing him to appear in court in jail clothes, questioning of a prospective juror, and arguing his Romero motion. We address each claim in turn.

1. Defendant Wearing Jail Clothes

A defendants right to a fair trial includes the right to appear in civilian rather than jail clothes. (People v. Taylor (1982) 31 Cal.3d 488, 494.) This holding is based on the rationale that compelling a defendant to go to trial in jail clothing could impair the fundamental presumption of our system of criminal justice that the defendant is innocent until proved guilty beyond a reasonable doubt. (Ibid.) Jail clothing serves as a constant reminder to the jury that defendant is in custody and tends to undercut the presumption of innocence. (Ibid.) However, a defendant may waive the right to appear in civilian clothing, either as a deliberate tactical matter or by failure to object in a timely manner to the jail clothing or to bring the matter to the trial courts attention. (Id. at pp. 495-496.)

At the beginning of voir dire, the trial court admonished the jury as follows: The Court: Ladies and Gentlemen, Mr. Perez is in jail garb. He is in custody, and the reason he is in custody is because he does not have the funds to post the reasonable amount of bail that has been set in this matter. [] Youre not to draw any inference from the fact that he is in custody and in jail uniform. In fact, tomorrow hell probably have some civilian clothes.

The record indicates that Perez wore jail clothing only on the first day of voir dire. There is nothing in the record that indicates why he appeared in jail clothing on that day. During voir dire, Perezs trial counsel Grady Russell stated: But let me ask one more time about this business about the presumption of innocence. And I ask simply because the judge has pointed out, and maybe you noticed before he pointed it out, that my client, Mr. Perez, appears to be wearing something other than civilian clothes. Traditionally, theyre blue. His is orange. He looks a whole lot like the great pumpkin sitting over there.

At the conclusion of voir dire, out of the presence of the jury, the trial court asked Mr. Russell: Are clothes being dropped off for him today or brought in tomorrow morning? He responded: Ill bring some.

The petition for writ of habeas corpus is supported by declarations that shed some light on the reason why Perez appeared in jail clothing for the first day of voir dire. In an April 22, 2009 letter, Mr. Russell stated that his memory was that his client became sullen and chose to wear jail clothes at trial, and when he was offered civilian clothing, he wore them. In a June 15, 2009 declaration, Mr. Russell explained that on the day of trial, his client became sullen and expressed a desire to wear jail clothes at trial. He was advised that in some cases it may be helpful to not hide custody status from the jury. Mr. Russell also explained a tactical reason for wearing jail clothing.

In a June 16, 2009 declaration, Perez recalled that on the first day of voir dire, Mr. Russell asked him if he could get someone to drop off clothing. Perez told his counsel that his family was upset with him. Mr. Russell indicated that the jury was to be picked that day and that he should go ahead with jury selection in his jail clothes. Mr. Russell would have some civilian clothing for him the next day.

In a declaration from Victoria H. Stafford, appellate counsel representing Perez in the instant matter, she stated that she had a conversation with Mr. Russell on November 1, 2008; Mr. Russell said that it was untrue that Perez appeared in jail clothing because he did not have any civilian clothing. On February 9, 2009, Ms. Stafford again spoke with Mr. Russell. He stated that Perez wanted to wear jail clothes but had changed his mind. He did not tell Ms. Stafford that he advised Perez that in some cases it can be helpful not to hide custody status from the jury or that he had a tactical reason for allowing Perez to appear in jail clothing. It was not until Mr. Russells June 15, 2009 declaration that he stated that he informed Perez of a tactical reason for allowing Perez to appear in jail clothing.

In Mr. Russells declaration dated October 23, 2009, he stated that before jury selection, he asked Perez if he had family members who could bring him civilian clothes for trial; Perez is a very large man, and Mr. Russell did not have clothes that would fit him. Perez was very sullen, insisting that he had no family and he wanted to wear jail clothes for trial. Mr. Russell got the impression that Perez believed he could delay the trial if he refused to wear civilian clothes. Mr. Russell then advised Perez that it could be helpful not to hide his custody status from the jury. Toward the end of jury selection, one of Perezs family members approached Mr. Russell with civilian clothes for Perez. Mr. Russell offered them to Perez, who wore them for the rest of the trial.

In response, Perez submitted a declaration dated November 9, 2009, in which he claimed that Mr. Russell said that he would bring clothes for Perez for trial, but on the first day of voir dire he told Perez he had forgotten them. Perez got upset and tried to fire Mr. Russell. The next day, Mr. Russell brought clothes for him. Perez stated that his family never came to court and Mr. Russell never advised him of a possible tactical reason for wearing jail clothes.

There is conflicting evidence regarding Perezs appearance in jail clothes on the first day of voir dire. If, as Mr. Russell stated, Perez chose to wear jail clothing, then he has no basis for seeking relief based upon his appearance. (People v. Taylor, supra, 31 Cal.3d at p. 496.)

Assuming it was not Perezs choice to appear in jail clothing, and Mr. Russell had no tactical reason for allowing him to do so, reversal is not required unless it is reasonably probable Perez would have obtained a more favorable result had Mr. Russell provided him with civilian clothing. (In re Cudjo, supra, 20 Cal.4th at p. 687; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) We conclude there was no reasonable probability Perez would have received a more favorable result had he not appeared in jail clothes.

First, Perez only appeared in jail clothes on the first day of voir dire, and it is unlikely that the limited view of him in jail clothes, based upon the responses of the jurors, would have prejudiced the jury against him.

Additionally, the trial court instructed the jury as to the presumption of innocence and that it was not to consider the fact that Perez was in jail clothes as evidence he was guilty. The jury is presumed to have followed the instructions given it. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)

Finally, the evidence against Perez was overwhelming. He fled the scene of a robbery with the robber in his car. He was involved in a high speed automobile pursuit in an attempt to avoid capture. He fought with police officers after they forced him to a stop, and it required a Taser to subdue him. All of this was witnessed by police officers. There is no possibility he would have been acquitted had he not appeared in front of the jury in jail clothes on the first day of trial.

Since Perezs appearance in jail clothes was not prejudicial, he is not entitled to reversal for ineffective assistance of counsel based on any error in allowing him to appear this way. (In re Cudjo, supra, 20 Cal.4th at p. 687; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

2. Questioning of Prospective Juror No. 9689

Perez submits that his trial counsel was ineffective in failing either to dismiss or to further question Prospective Juror No. 9689. We find no failure on behalf of trial counsel.

During voir dire, the following occurred:

Mr. Russell: Good afternoon. I dont want to repeat all this again. My colleague, Mr. Urias, I think did a pretty good job covering most of this, so Im not going to have much to say.

But let me ask one more time about this business about the presumption of innocence. And I ask simply because the judge has pointed out, and maybe you noticed before he pointed it out, that my client, Mr. Perez, appears to be wearing something other than civilian clothes. Traditionally, theyre blue. His is orange. He looks a whole lot like the great pumpkin sitting over there.

Did anybody recognize that he was in some sort of jail clothes?

Well, let me ask you about that, when you came in be honest about this did you wonder what he did? Raise your hand.

Well, the process of the mental process of wondering what he did, does that fly in the face of presuming that hes innocent or something?

Prospective Juror No. 3826: I was wondering what hes charged with.

Mr. [Russell]: I know, but that wasnt my question. My question was kind of a trick one. Theres always someone that says Well, I didnt really I wasnt wondering what he was doing. I was wondering what he was charged with. But thats not what I asked you. And some of you did not raise your hand and point that out.

So, number five, you raised your hand. You were wondering what he did?

Prospective Juror No. 9689: Yeah.

Mr. [Russell]: Does that fly in the face of the presumption of innocence? Doesnt it in some sort of way?

Prospective Juror No. 9689: Pardon me. Sorry?

Mr. [Russell]: Doesnt the fact that youre going hmmmm, youre suspicious of him, and especially in so much as hes wearing what looks like jail clothes, doesnt that fly in the face that you have to presume that hes innocent until the contrary is proven?

Prospective Juror No. 9689: Yes. I kind of

Mr. [Russell]: Has the contrary been proven yet?

Prospective Juror No. 9689: No. And I kind of had to step on my own foot and remind myself that I have to leave any bias outside the court.

Mr. Russell: Well, let me ask you guys about the burden of proof. . . .

The record is clear that Prospective Juror No. 9689 raised his hand because he wondered what Perez had done. When questioned about the effect of the jail clothes, he agreed that it was contrary to the presumption of innocence, but he had reminded himself that he had to leave any bias outside the courtroom. In other words, he agreed to accept the presumption of innocence despite what jail clothes might otherwise indicate. Prospective Juror No. 9689s response did not demand or suggest that any further questioning was necessary or that the juror should be dismissed. Accordingly, Mr. Russell was not ineffective for failing to ask further questions of Prospective Juror No. 9689 or for failing to request his dismissal from the jury. (In re Cudjo, supra, 20 Cal.4th at p. 687.)

3. Romero Motion

Perez also claims that his trial counsel was ineffective in failing to argue orally his written Romero motion to strike his prior convictions or to submit written facts in his favor in an effort to receive a more lenient sentence. We disagree.

At the sentencing hearing, the trial court asked Mr. Russell if he wanted to be heard on the Romero motion. He stated that he would submit on the written motion. The court then asked the prosecutor if he wanted to be heard. The prosecutor responded: Just very briefly, your Honor. I believe in Peoples number 3, as I was looking at the abstract, I noticed a lot of familiar names; and it would appear that Mr. Perez appeared before this court on his [Health and Safety Code section] 11377, was sentenced by this court to five years, which I believe the upper term on the [Health and Safety Code section] 11377 plus two prison priors. He certainly at that time was eligible to be sentenced under the three strikes scheme. He was not. I believe probably based on our office policy.

However, Im sure he was very well aware if he committed other crimes in the future this would likely be the result, and just in reviewing this probation report, he committed continual crimes, serious crimes, from 1981 to the present. The only gap in time was the 13-year sentence that he served on the [section] 211 and [section] 207 out of the San Bernardino case. So hes clearly well within the spirit of the three-strikes scheme, your Honor. Submit it.

The trial court gave Mr. Russell a chance to respond, but he declined to do so. The court then stated: The court recognizes it has discretion to strike enhancements under [section] 1170[, subdivisions] (a) through (d) and [section] 667[, subdivisions] (b) through (i), subject only to an abuse of discretion. The court does not find any matters that would promote the interest of justice by the striking of any priors. Mr. Perez has offended on numerous occasions. He was put on notice in his last conviction of the application of the three strikes law against him and that knowledge has not deterred him from engaging in serious criminal conduct. The trial court then denied the motion to strike Perezs prior convictions.

Perez suggests a number of factors counsel could have emphasized, including the age of his prior convictions, his age, and his drug addiction. There are no mitigating factors he raises which did not exist at the time the same court sentenced him on a previous case and did exercise its discretion to strike his prior convictions. Despite being warned of the potential for a three strikes sentence and being shown leniency, Perez continued to offend. As the trial court put it, He was put on notice in his last conviction of the application of the three strikes law against him and that knowledge has not deterred him from engaging in serious criminal conduct. There is no reasonable probability that the result of the proceedings would have been different if counsel had vigorously argued the Romero motion on behalf of his client. (In re Wilson (1992) 3 Cal.4th 945, 950.)

B. Burglary Tools

Perez submits that his rights to due process were violated by the admission of evidence that shaved keys were found in the car used in the robbery and that they are considered burglary tools. We disagree.

Perez objected to testimony regarding the shaved keys, in that a charge of driving or taking a vehicle without permission was dismissed at the preliminary hearing. He argued that evidence concerning the keys therefore was inadmissible as evidence of his bad character. The trial court admitted the evidence as relative to motive and explanation of why he fled.

Only relevant evidence is admissible at trial. (Evid. Code,  350.) Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Id.,  210.) The trial court has the duty to determine the relevance and thus the admissibility of evidence before it can be admitted. (Id.,  400, 402.) The trial court is vested with wide discretion in performing this duty. (Peoplev.Babbitt (1988) 45 Cal.3d 660, 681.) However, it has no discretion to admit irrelevant evidence. (Ibid.) We review the trial courts determination as to admissibility that turns on relevance for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)

We agree with the trial court that the evidence had a degree of relevancy, in that it gave an explanation for Perezs flight from the police. Indeed, if, as Perez argued below, he had no knowledge of Rangels robbery, the presence of the keys provided an alternate explanation for his flight.

Perez also argues that the evidence of the shaved keys was inadmissible under Evidence Code section 1101, subdivision (a), which prohibits, with specified exceptions, admission of evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion.

Subdivision (b) of Evidence Code section 1101 provides: Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act. As stated above, evidence of the shaved keys was relevant to the issue of motive. The trial court therefore did not abuse its discretion in admitting the evidence. (Peoplev.Ewoldt (1994) 7 Cal.4th 380, 405.)

C. Instruction Pursuant to CALCRIM No. 372

Perez submits that the trial court erred in instructing the jury with CALCRIM No. 372, on evidence of flight showing consciousness of guilt, in that it contains a presumption of guilt, it induced the jury to conclude that he was conscious of his guilt, and it lowered the burden of proof for the prosecution. We disagree.

The court instructed the jury with CALCRIM No. 372 as follows: If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.

Perezs claims have been rejected in People v. Hernndez Ros (2007) 151 Cal.App.4th 1154, review denied September 12, 2007. The court in Hernndez Ros, supra, at pages 1158 to 1159, observed that similar arguments have been rejected by the Supreme Court in People v. Navarette (2003) 30 Cal.4th 458, 502 and People v. Mendoza (2000) 24 Cal.4th 130, 180 with respect to CALJIC No. 2.52. That instruction provides: The [flight] [attempted flight] . . . of a person [immediately] after the commission of a crime, or after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

While it is true, as Perez points out, that the language in CALJIC No. 2.52 and CALCRIM No. 372 is not identical, the reasoning of the court in Mendoza and Navarette is applicable to CALCRIM No. 372. As pointed out in People v. Hernndez Ros, supra, 151 Cal.App.4th at pages 1158-1159, that CALCRIM No. 372 refers to an awareness of guilt, while CALJIC No. 2.52 refers to a consciousness of guilt, is of no significance; the terms are synonymous.

For the reasons set forth in Hernndez Ros, we reject Perezs challenges to CALCRIM No. 372.

D. Rangels Appeal

We appointed counsel to represent Rangel on appeal. Counsel filed a brief raising no issues and requesting that we review the record independently pursuant to People v. Wende, supra, 25 Cal.3d 436. Counsel also indicated that Rangel was informed that he could ask the court to relieve counsel.

On December 8, 2008, we notified Rangel that he had 30 days in which to raise any issues he wished us to consider. We received no response within that time period. We did receive a request to relieve counsel on April 23, 2009, based on a failure to keep Rangel informed of the status of his appeal. We denied that request.

We have examined the record independently and conclude counsel has performed her duty. There are no issues of arguable merit. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.40th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgments are affirmed. The petition for writ of habeas corpus is denied.

JACKSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] All further statutory references are to the Penal Code unless otherwise noted.

[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[3]People v. Wende (1979) 25 Cal.3d 436.