P. v. Sanchez

Filed 5/22/08 P. v. Sanchez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Flier, Judge. Affirmed.

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Thomas W. Kielty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

_________

Gabriel Sanchez appeals from his conviction of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2).^[1] He contends that his federal and state constitutional due process rights to fair notice of the charge and to defend against the charge were violated because of the uncertainty of the victims identity in the charging information. We disagree and affirm.

BACKGROUND

In August 2006, Sanchez quit his job at an Arco gas station. On August 28, 2006, he picked up his last paycheck from the gas station. At approximately 3:30 in the morning on August 29, 2006, James Wilson, a fellow employee who knew Sanchez, was working the night shift and was talking to one of his regular customers, A guy named Kenny[,] when two gunmen entered the gas station. Wilson recognized one of the gunmen as Sanchez. Sanchez first pointed a sawed-off shotgun at Kennys head from behind, then came to the back of the store and pointed the shotgun at Wilsons face. Sanchez ordered Wilson to give him the key to the cashiers area. The second gunman then pointed a gun at Kenny and at Wilson and ordered them both to lie on the floor. The second gunman watched them while Sanchez unlocked the cashiers area and then the door to the office where most of the gas stations money was stored. He and his accomplice left several minutes later, Sanchez carrying the stations change box. The black garbage bag in which cash was kept was also missing.

On October 23, 2006, at the preliminary hearing, Wilson described the robbery and stated that he recognized Sanchez by his voice, his eyes, and his shoes. A police detective contemporaneously described what he was seeing on the gas station surveillance videotape as it was playing in court. The detective described the tape as showing Sanchez pointing the shotgun at the victim Kenny, which I found his name is actually Larry Moore. On November 6, 2006, the Los Angeles County District Attorney filed a two-count information. Count one charged Sanchez with robbery of Wilson in violation of section 211, with additional allegations that Sanchez personally used a firearm pursuant to sections 12022.53, subdivision (b), and 1203.06, subdivision (a)(1), and that a principal to the offense was armed with a firearm pursuant to section 12022, subdivision (a). Count two charged Sanchez with assaulting LARRY MOOREKENNY with a firearm in violation of section 245, subdivision (a)(2), with an additional allegation that Sanchez personally used a firearm pursuant to sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c).

At a jury trial in January 2007, the prosecution presented testimony from Wilson and the gas stations owner. The prosecution played the store surveillance videotapes showing Sanchez at work and picking up his check, as well as the tape showing the armed robbery. Wilson described the robbery and testified that although Sanchez had a rag around his face and a hat on[,] he recognized Sanchez by his voice, his eyes, and his clothing, which was the same clothing that he had worn to work. Although the accomplices face was not covered, Wilson did not recognize him. After the prosecution concluded its case-in-chief, the defense rested.

The jury found Sanchez guilty as charged and found the various allegations regarding firearm use to be true. The court found Sanchez ineligible for probation and sentenced him to the midterm of 3 years for armed robbery, plus an additional consecutive 10-year term for personal use of a firearm pursuant to section 12022.53 and a consecutive one-year term, one-third of the midterm, for assault with a firearm, for a total prison term of 14 years. The court struck the other firearm use allegations, imposed various statutorily mandated fines and fees, and awarded Sanchez 173 days of custody credit. Sanchez timely appealed.

DISCUSSION

Sanchez contends his federal and state constitutional due process rights were violated because the charging information alleged in count two that he did willfully and unlawfully commit an assault on LARRY MOOREKENNY with a firearm. Sanchez maintains that because the information failed to specify precisely whom the victim was or explain why two different names were stated, he was denied his constitutional rights to sufficient notice of the charges and to defend against the charges. We disagree.

Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citations.] (In re Hess (1955) 45 Cal.2d 171, 175.) No procedural principle is more familiar, however, than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. omitted.) This is because it is unfair to the trial judge and the opposing party to allow a party to take advantage, on appeal, of an error that the trial court easily could have rectified. (Id. at pp. 589-590.) This well-established procedural principle applies to due process rights. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 236; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060; Buell-Wilson v. Ford Motor Co. (2008) 160 Cal.App.4th 1107, 1168.) In his appellate brief, Sanchez does not claim to have raised his due process argument before the trial court and does not provide record references to show that he did; therefore, he has forfeited the issue on appeal. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived].)

Were we to assume that Sanchezs due process argument were not forfeited, we would reject it on its merits. As our Supreme Court has observed, [T]he right to defend has two related components, namely, the right to notice of the charges, and the right to present a defense to those charges. (People v. Jones (1990) 51 Cal.3d 294, 317.) The Court approvingly quoted language stating, It is clear that in modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend. (Ibid., quoting People v. Gordon (1985) 165 Cal.App.3d 839, 868-869 (conc. opn. of Sims, J.).) Here, during the preliminary hearing, the police detective who investigated the armed robbery of the Arco gas station specifically explained that the victim of the assault with a firearm was the victim Kenny, which I found his name is actually Larry Moore. Accordingly, the testimony at the preliminary hearing sufficiently explained the alleged ambiguity Sanchez points to in the information and gave him sufficient notice of the identity of his alleged victim. The trial court also explained to the jury during voir dire that Count II alleges that . . . Gabriel Sanchez . . . did willfully and unlawfully commit an assault on Larry Moore with a firearm. Moreover, in identifying the victim as LARRY MOOREKENNY, the information not only provided the name of the victim, but also provided an alternate name or nickname for the same individual set apart with quotation marks, in keeping with the explanation given at the preliminary hearing.

Sanchez invokes People v. Christian (1894) 101 Cal. 471, overruled on other grounds in People v. Lee Look (1904) 143 Cal. 216, 220, in support of his position that the name of the party assaulted is a material element of the offense. The case does not aid him. In Christian, after a preliminary hearing, the defendant was held to answer for assaulting one George Magin, but was then charged by information and convicted of assaulting George Massino. (People v. Christian, supra, 101 Cal. at pp. 472-473.) Our Supreme Court held that because the defendant was brought before a magistrate to defend himself against a charge of assaulting Magin, he could not be called upon to defend himself for assaulting one Massino, for there was no complaint on file upon which to base an examination of that character. (Id. at p. 473.) The Court concluded, The name of the party assaulted is a material element of the offense, and common justice to the defendant demands that he be notified of the particular offense for which he stands committed. In the present case he had no such notice. (Ibid.) Here, by contrast, Sanchez had notice of the assault victims true identity, and the preliminary hearing and the information identified the same victim, as we have discussed. There was no confusion here of what act defendant was tried and convicted; Sanchez was not taken by surprise, and there was sufficient specificity to bar any later prosecution for the same offense. (People v. Griggs (1989) 216 Cal.App.3d 734, 743 [distinguishing People v. Christian, supra, 101 Cal. 471].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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^[1] All undesignated code section references are to the Penal Code.