P. v. Talamantes

Filed 6/18/08 P. v. Talamantes CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Defendants Marco Anthony Talamantes and Tonino Ambriz appeal from judgments of conviction after a jury found them each guilty of two counts of unlawful taking of a vehicle and one count of carjacking. For each defendant, the trial court stayed sentence on one count of unlawful taking of a vehicle under Penal Code section 654.

On appeal, defendants contend: (1) there was no substantial evidence to prove defendant Ambriz guilty of the first charge of unlawful taking of a vehicle; (2) the trial court erred in refusing to allow evidence that the alleged victims were illegal aliens; and (3) the trial court erred in imposing a consecutive sentence for the convictions. We find no merit in the second and third claims, but reverse the first conviction of unlawful taking of a vehicle for defendant Ambriz.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2006, Alida Torres, Augustine Torres, Adriana Virrueta, and Taurino Ochoa went to a Motel 6 to rent rooms.^[1] Alida and Augustine were driving a Camry and Virrueta and Ochoa were driving a Lincoln. Alida and Virrueta waited outside with the cars while Augustine and Ochoa entered the motel office.

Virrueta left the Lincoln to start removing some of her clothing from inside the Camry. At that point, defendants drove up in a multicolored car and parked beside the Camry. Defendant Ambriz exited the multicolored car and approached Alida, who was also taking her clothing out of the Camry. He asked if she had a boyfriend. Fearing her husband Augustine would start a fight with defendant Ambriz, Alida told him that her father was inside the motel office and asked him to leave.

Defendant Ambriz returned to the multicolored car and moved it forward a short distance. Defendant Talamantes then exited the multicolored car and approached the Lincoln. He announced the keys to the Lincoln were still in the ignition. He then entered the Lincoln and drove it out of the motel parking lot.

Alida and Virrueta ran into the motel office. They told Augustine and Ochoa that the Lincoln had been taken. Defendant Ambriz was still in the multicolored car in the parking lot. Ochoa confronted him, but he was able to drive out of the parking lot.

Ochoa and Virrueta borrowed the Camry to pursue defendants. They called the police while they were driving. They eventually found the Lincoln on a residential street, parked, with no one inside. Ochoa exited the Camry and entered the Lincoln. Defendants then appeared and attacked Ochoa. Defendant Ambriz began hitting Ochoa. Ochoa got out of the car. Defendant Talamantes tripped Ochoa. Defendant Ambriz then kicked Ochoa in the face. Defendants then took the Lincoln and drove away.

Ochoa and Virrueta followed the Lincoln in the Camry again. The Lincoln stopped on a different street. Defendants exited the Lincoln and started walking toward the Camry, so Ochoa and Virrueta left the area. Soon afterwards, Ochoa and Virrueta were contacted by the police. The police had found the Lincoln and took Ochoa and Virrueta to the Lincolns new location. The car was wrecked.

Officer Darren Sandoval saw defendants walking in the area where the Lincoln was recovered. As he approached, defendants jumped over a small fence and hid. Officer Sandoval captured and arrested defendants. Ochoa and Virrueta later identified them as the men who had taken the car.

Each defendant was charged with one count of carjacking and one count of taking a vehicle without consent for the initial confrontation at the motel. Each was also charged with counts of carjacking and taking a vehicle without consent for the second confrontation when Ochoa attempted to retrieve the Lincoln. The jury found both defendants guilty of taking a vehicle without consent for the incident at the motel, and of both carjacking and taking a vehicle without consent for the second incident when Ochoa attempted to take back the car. The trial court stayed the sentence on the counts of taking a vehicle without consent for the second incident under Penal Code section 654. The trial court imposed consecutive sentences for the taking of a vehicle without consent at the motel and the later carjacking, concluding the first incident at the motel was separate from the second incident when Ochoa attempted to recover the Lincoln.

DISCUSSION

I

There Was No Sufficient Evidence For A Reasonable

Jury To Find Defendant Ambriz Guilty Of The

First Count Of Taking A Vehicle Without Consent

Defendant Ambriz argues there was no evidence he took the Lincoln from the Motel 6. At trial, the People argued he should be convicted as an aider and abettor. Defendant Ambriz asserts that when defendant Talamantes took the Lincoln, defendant Ambriz had not formed an intent to encourage or facilitate the taking prior to or during the crime as required under the theory of aiding and abetting. He also contends there was insufficient evidence to show that he, by act or advice, aided defendant Talamantes.

The People argue the evidence of defendant Ambrizs intent and motive is compelling. They contend defendant Talamantess statement that the keys were still in the Lincoln could only have been directed to defendant Ambriz. They also contend defendant Ambriz moved the multicolored car prior to the theft of the Lincoln, arguing the act demonstrates a shared intent to take the Lincoln. Lastly, the People contend the subsequent behavior, where the defendants met up after the theft, shows a pre-planned criminal act, shared by both [defendants].

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.)

In California, both the actual perpetrators and aiders and abettors are equally liable for the resulting crime. (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1357.) A person aids and abets the commission of a crime when he . . ., (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Hill (1998) 17 Cal.4th 800, 851.)

Defendant Ambriz argues there is no substantial evidence that he by act or advice, promoted or encouraged [defendant] Talamantes to drive the Lincoln. The People point to a number of events they contend support an inference that defendant Ambriz shared defendant Talamantess intent to take the Lincoln, but they do not point to any evidence that suggests any act or advice by defendant Ambriz that would constitute aiding and abetting. We likewise can find no evidence or any act or advice by defendant Ambriz that would constitute substantial evidence of aiding and abetting.

In arguing that defendant Ambriz shared the intent to take the Lincoln, the People point to the fact that [defendant] Ambriz returned to his vehicle, started it, and moved it prior to the actual vehicle theft. During this period of time, [defendant] Talamantes announced that the keys were in the Lincoln, entered it, and drove away. Although the People do not expressly argue that by moving the multicolored car defendant Ambriz performed an act that aided defendant Talamantess taking of the Lincoln, we have considered that theory but find no evidence to support it.

Alida testified that defendant Ambriz spoke to her, was rebuffed, entered the multicolored car, moved it forward, and then defendant Talamantes exited the multicolored car and entered the Lincoln. Virrueta testified that defendant Talamantes walked to the Lincoln, said the keys were in the ignition, and took it. This evidence is insufficient to support a finding that defendant Ambriz aided defendant Talamantess taking of the Lincoln by moving the multicolored car, and we have found no other evidence to support such a conclusion. Accordingly, we will reverse defendant Ambrizs conviction on the first count of unlawful taking of a vehicle for insufficient evidence.

II

The Trial Court Properly Excluded Evidence

That The Victims Were Possibly Illegal Aliens

Before trial, the prosecutor filed a motion in limine to exclude any questioning regarding the victims immigration status. At a hearing on the motion, the trial court established that neither side knew whether the victims were illegal immigrants. The prosecutor argued the potential testimony was barred because it was irrelevant, illegal immigration was not a crime of moral turpitude, it was irrelevant to show credibility, it would be unduly prejudicial, and there was no probative value to the inquiry. Defendants contended illegal immigration is a crime of moral turpitude, depending on how the entry was made, whether it was by use of false documents.

The trial court stated, I couldnt find anything labeling illegal immigrants as a crime of moral turpitude, but we do have a definition, its readiness to do evil and/or would this give rise to reason for disbelieving someone. [] First of all, [defendants] dont have a rational basis to ask the question and trial is not the time to do discovery so Im not going to allow you to ask the question of Alida. . . . [Y]ou dont have a rational basis. [] Im still going to exercise my discretion and Im going to do a[n Evidence Code section] 352 analysis on this. [] With regard to immigration status, thats not something the Court ever asks. [] Whenever I advise the defendant of their plea, I never ask them what their immigration status is. I do give them the admonition, If youre an illegal immigrant, any conviction can result in your deportation, but the Court never asks that and thats because justice is blind. Just because theyre here illegally doesnt mean they cant be a victim of a crime and they shouldnt be allowed the laws of protection. Its not just a crime when youre illegally here. Its a crime period. People who are here illegally would be more likely than not to report being the victim of a crime because then now theyre involved in law enforcement and then the immigration status becomes a concern. [] Also, here in our country, whats going on right now in our world, theres a big hot issue about immigration right now and that would be another reason that it would be unduly prejudicial to ask that question. The current environment against illegal aliens is not favorable. There are lots of reasons that people are here in this country, and as I mentioned before, theyre more likely than not to report. [] So I find that it has very little, if no probative value, and the prejudice outweighs it. So the Court is not going to allow you to ask that question.

On appeal, defendants argue the court erred by excluding the evidence, as [i]llegal alien status is a fact that goes directly to honesty, veracity, and bias. Defendants argue the evidence should have been admitted under Evidence Code sections 780, 786, and 788. While acknowledging the court was correct to apply an Evidence Code section 352 test balancing probative value and undue prejudice, defendants disagree[] with the trial courts evaluation of these competing values.

The People assert the trial court properly excluded the evidence, as there is no definitive case law on whether or not illegal immigration status constitutes moral turpitude, and the trial court acted within its discretion in its application of the Evidence Code section 352 balancing test.

The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citation.] In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witnesss character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude toward the action in which he testifies or toward the giving of testimony; and his admission of untruthfulness. [Citation.] Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the courts discretion under Evidence Code section 352. (People v. Harris (2005) 37 Cal.4th 310, 337.)

Neither party has provided this court with any published case law determining whether illegal immigration is a crime of moral turpitude. Our own research has not found any case law on this question either. Even assuming, however, that illegal immigration is a crime of moral turpitude, we conclude the trial court did not err in precluding defendants from questioning the victims on their immigration status.

Evidence Code section 352 provides, The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. It empowers the trial judge to bar impeachment of a witness by reference to collateral matter. (People v. Blackburn (1976) 56 Cal.App.3d 685, 693.) We review the trial courts ruling under the deferential standard of abuse of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 428.)

Defendants correctly point out the court must weigh the probative value against undue prejudice, not just prejudice. [P]rejudicial is not synonymous with damaging. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 989, overruled on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.) Instead, evidence barred by Evidence Code section 352 uniquely causes the jury to form an emotion-based bias against a party and that has very little bearing on the issues of the case. (People v. Thornton, supra, 41 Cal.4th at p. 427.)

As the trial court stated, immigration is a big hot issue and the current environment against illegal aliens is not favorable. Defendants brief illustrates the current attitude toward illegal immigrants, arguing both that [a]ll illegal aliens commit a dishonest act when they enter (or remain in) the United States and [m]any or most illegal aliens commit a further, more specific act of dishonesty by obtaining false documentation, and using them for purposes of entry of the country, of obtaining employment, of obtaining public benefits, etcetera. The only proof of these assertions defendants offer is a single case, People v. Viniegra (1982) 130 Cal.App.3d 577, where a particular criminal defendant obtained illegal documentation.

Defendants arguments to the trial court on the issue highlight the time-consuming nature of inquiring into the victims immigration status. Defense counsel argued, I believe its a crime of moral turpitude, depending on how the entry was made, whether it was by use of false documents. . . . Whether they entered with the use of false documentation, whether or not they were currently employed using false documentation that they have acquired. False documents in and of itself would be a crime of moral turpitude. The fact that theyre illegally here, using that documentation, I think would be relevant. And, again, as the Court indicated, we dont know the status or were unable to question them regarding that to elicit further information. To determine whether the victims entered the country illegally, and whether the entry involved some form of deception, the jury would need to hear evidence on the facts and circumstances of each victims entry, including witnesses involved in assisting each victim or communicating with them upon or after their entry into this country. Therefore, inquiry into each victims entry into the United States would have required a significant amount of time and would have injected a highly prejudicial element into the trial.

The trial court found the danger of undue prejudice substantially outweighed the probative value. We conclude the trial court did not abuse its discretion.

III

The Trial Court Did Not Err In Imposing Consecutive Sentences

Defendants argue the trial court erred in imposing consecutive sentences for the first count of unlawful taking of a vehicle and the carjacking charge. We have concluded there was no substantial evidence regarding the first count of unlawful taking of a vehicle for defendant Ambriz. Therefore, the issue is moot as to him. We now address the arguments solely as they apply to defendant Talamantes.

Defendant Talamantes argues the trial court erred by misapplying rule 4.425 of the California Rules of Court.^[2] He contends that the two crimes were not sufficiently separated under rule 4.425. Instead, he argues the crimes were committed so closely in time and place as to indicate a single period of aberrant behavior, and therefore do not qualify for consecutive sentences under rule 4.425(a)(3).

A trial court has broad discretion to make essential sentencing determinations, including the imposition of consecutive or concurrent terms. (Pen. Code, 669; rule 4.406(b)(2), (4) & (5); People v. Giminez (1975) 14 Cal.3d 68, 71-72; People v. Roe (1983) 148 Cal.App.3d 112, 119.) The trial court has discretion to impose consecutive sentences when [t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (Rule 4.425(a)(3).)

In making a claim of sentencing error, the burden is on the party attacking the sentence to show that the trial courts sentencing decision was irrational, arbitrary or capricious, or in excess of the bounds of reason, all of the circumstances being considered. (People v. Giminez, supra, 14 Cal.3d at p. 72.) [A]ppellate courts do not have the power to modify a sentence or reduce the punishment therein imposed absent error in the proceedings. [Citation.] Moreover, such error cannot be predicated on a trial courts determination that several sentences are to run consecutively unless an abuse of discretion is clearly shown. (Ibid.) In the absence of such a showing, an appellate court will respect the trial courts discretionary sentencing determination and presume that the trial court acted as it did to achieve legitimate sentencing objectives. (Giminez, at p. 72.)

Consecutive sentences are permissible within the trial courts discretion under rule 425(a)(1) [later renumbered as rule 4.425] when the crimes and their objectives are independent of each other. Thus consecutive sentences may be imposed when separate crimes are committed against different victims or when separate crimes are committed against the same victim. (People v. Bowman (1989) 210 Cal.App.3d 443, 448; see People v. Floyd P. (1988) 198 Cal.App.3d 608, 613.) In this case, the initial taking was from Alida and Virrueta. After Virrueta and Ochoa had lost sight of the Lincoln, defendant Talamantes parked the vehicle and left it. Then, after Ochoa found and attempted to retrieve the car, defendants returned and attacked him.

The trial court found [t]he crimes involve separate acts. [] . . . It appears to the Court that the crimes were committed at different times and different places. [] One, the act was initially completed; and, two, it was done at a separate location. There was no reason for them to even engage in the second act.

Given the lapse in time between the two incidents, as well as the fact that different victims were involved in each incident, we conclude the trial court did not err in imposing consecutive sentences because the crimes were independent of each other rather than being part of a single period of aberrant behavior.

DISPOSITION

The conviction of defendant Ambriz on the first count of unlawful taking of a vehicle is reversed, and the case is remanded to the trial court for resentencing of defendant Ambriz. In all other respects the judgments are affirmed.

ROBIE , J.

I concur:

DAVIS, Acting P.J.

Concurring and dissenting opinion of Morrison, J.

     I concur in the majority opinion except for the conclusion that no substantial evidence supports Ambrizs conviction for vehicle theft (Veh. Code, 10851).  From this holding, I respectfully dissent.

     Ambriz is liable as an aider and abettor.

     Proof of an aiders intent may be adduced by way of an inference from [the aiders] volitional acts with knowledge of their probable consequences.  (People v. Mitchell (1986) 183 Cal.App.3d 325, 330 (Mitchell).)  The trier of fact also properly may consider the defendants relationship with the actual perpetrator and his conduct before and after the offense, including flight.  (See People v. McDaniels (1980) 107 Cal.App.3d 898, 904.)  Factual conflicts as to whether a defendant aided and abetted a crime must be resolved in favor of the judgment.  (Mitchell, supra, at p. 329.) 

     Because direct evidence of mental state is rarely available, an act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the person aided, may indicate that the actor intended to assist in fulfillment of the known criminal purpose.  (People v. Beeman (1984) 35 Cal.3d 547, 558-559.)

     Ambriz and Talamantes arrived together in one car.  It is not uncommon for car thieves to work in pairs:  That way the accomplice can be on the lookout for danger and then be available to drive one of the cars (either the stolen one or the one the thieves drove to the scene). 

     It was reasonable for the jury to infer that Ambriz spoke to Alida Torres as a ruse, and waited for her to go inside the motel.  Talamantes pointed to the Lincoln and told Ambriz that the keys were in the car, thereby letting Ambriz know he was going to steal it.  He then stole the car and Ambriz followed Talamantes in the other car.  Before the pair reached a place of relative safety, Ambriz helped Talamantes by lying in wait to attack the victims who had followed.  Although the theft may have been complete at the moment Talamantes drove off, the jury could infer that this coordinated attack helped the pair retain the stolen car, further shedding light on Ambrizs earlier-formed intention. 

     If, in order to assist Talamantess attempt to steal a car at the motel, Ambriz had only dropped him off, then met up with him directly after the theft, that alone would be sufficient circumstantial evidence to convict.  But in this case we have evidence of a much more active role by Ambriz. 

     This case is similar to People v. Guzman (1996) 45 Cal.App.4th 1023.  There, the alleged aider (Antonio Guzman) arrived with burglars, stayed with them after they were discovered in the act of theft, and remained with them after they beat the victim who had given chase:

     Antonio Guzman was with Miguel Guzman and the others when they pulled up to a strangers open garage in a hillside residential area and stole a motorcycle out of the garage.  The burglars were aware of Hansen [the victim] as they looked up when Hansen yelled and then piled into the white truck and drove off with [Hansens sons] motorcycle. Antonio Guzman arrived with the burglars and stayed with them throughout the chase, even though he had the opportunity to stay behind when Hansen stopped the burglars on Golondrina Street [where the other burglars beat Hansen] and [Antonio Guzman] could have demanded [the other burglars] stop and let him out.  He may well have stayed behind when the burglars were cornered near the freeway since he was too intoxicated or confused to flee with the others.  Nevertheless, such evidence, along with the reasonable inferences raised from the testimony, is ample to support his convictions as an aider and abettor to burglary and the grand theft of personal property.  (Guzman, supra, 45 Cal.App.4th at pp. 1025-1027.) 

     Here, as stated, Ambriz helped attack the pursuers attempting to recover their stolen property, which is compelling evidence of his intent that supports aider liability.  He must have known the car had been stolen when he helped waylay those seeking to recapture it; he was no innocent companion of a thief.  Add to that fact the evidence that Ambriz drove Talamantes to the scene and spoke with Alida Torres, and the record amply supports the jurys conclusion that he was Talamantess partner in this crime from the beginning.

     Because the jury could rationally find Ambriz planned with Talamantes to steal this car, and actively assisted him in doing so, his conviction as an aider should be affirmed.

MORRISON , J.

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^[1] We mean no disrespect to the victims; however, for ease of identification, we will refer to Augustine and Alida Torres by their first names.

^[2] All further rule references are to the California Rules of Court unless otherwise indicated.