P. v. Torres
Filed 6/25/12 P. v. Torres CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RAUL GONZALES TORRES,
Defendant and Appellant.
B234570
(Los Angeles
County
Super. Ct.
No. VA118106)
THE COURT:
Raul
Gonzales Torres appeals following a jury trial that resulted in his conviction
of second degree robbery (Pen. Code, § 211)
(count 1) and second degree commercial
burglary (§ 459) (count 2).
Appellant admitted having served a prior prison term within the meaning
of section 667.5, subdivision (b) in case No. 06NF1288 with a conviction date
of August 11, 2006. Appellant admitted a prior conviction in case
No. VA057006 for a violation of section 245, subdivision (a)(2) with a
conviction date of May 8, 2011.
The trial
court found that the conviction in case No. VA057006 was for a serious or
violent felony under the three strikes law.
(§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds.
(a)-(d).) After denying appellant’s
motion, the trial court sentenced appellant to a total sentence of 10
years. The sentence consisted of the low
term of two years for the robbery, doubled to four years under the three
strikes law. The trial court imposed a
consecutive five years for appellant’s prior serious felony conviction under
section 667, subdivision (a)(1) and a consecutive one-year term for appellant’s
prior prison term under section 667.5, subdivision (b).
We
appointed counsel to represent
appellant on this appeal. After
examination of the record, counsel filed an “Opening Brief†containing an
acknowledgment that he had been unable to find any arguable issues. On December
9, 2011, we advised appellant that he had 30 days within which to
personally submit any contentions or issues that he wished us to consider. Appellant filed three documents in
response: one declaration in support of
request to recall sentence pursuant to section 1170, subdivision (d) and two
supplemental briefs.
The record
shows that on December 31, 2010,
Justin Rima, a loss prevention agent at a Cerritos Best Buy store, heard the
alarm go off in the appliance department at approximately 5:30 p.m. It was a
half hour before closing. Rima ran to
the emergency exit and found the door ajar.
He looked outside and saw a green or black car parked parallel to the
door. Rima identified appellant in court
as the person he saw loading laptops into the backseat of the car. Rima could tell by the boxes that one was a
Dell and one was a Toshiba. Rima said,
“What the fuck are you doing?†The
driver of the car pointed a gun at Rima and said, “Don’t fucking worry about
it.†Rima was shaken up, and he backed
away. Appellant jumped into the backseat
of the car, and it left. As the car
drove away, Rima heard cheering noises from the two men. Rima called the sheriff. Upon viewing the store’s security footage,
Rima identified appellant entering the store and inside the store. The store manager, Tony Bauguess, ascertained
that one Dell computer was missing.
Shortly
before the robbery, at approximately 5:18 p.m.,
appellant was stopped driving a dark green Lexus without a rear license
plate. He had a male passenger. Appellant gave the officer his driver’s
license and retrieved the license plate from the rear floorboard. The traffic stop occurred about one block
from the Best Buy store.
Detective
Randall Algra responded to a location on East Appleton
Street in Long Beach
on January 4, 2011. The location was near appellant’s residence,
and Detective Algra saw a dark green Lexus parked nearby. The Lexus had the same license number as the
car appellant was driving on December
31, 2010. Detective Algra
searched the Lexus and found a replica of a black semiautomatic handgun on the
right rear passenger floorboard.
The parties
stipulated that appellant was detained by detectives on January 4, 2011.
Upon searching appellant, the detectives found a cell phone, which they
handed over to Detective Aaron King.
There were photographs on the cell phone depicting a computer and a computer
box for exactly the type of computer taken from Best Buy.
After the
guilty verdicts were returned, the trial court conducted a hearing on the issue
of whether the prior conviction in case No. VA057006 was a serious or violent
felony. Both parties submitted
sentencing memoranda and offered no further argument. The trial court concluded that the prior
conviction qualified as a serious or violent felony. The trial court stated it had reviewed and
taken judicial notice of the case file for that conviction and had reviewed the
plea form. Appellant was charged with an
assault with a firearm against Michael Estrada and Cecilia Estrada. The transcript of sentencing in that case
showed that appellant was advised that the conviction would be considered a strike
and that it might result in an enhancement of sentencing in any further
Appellant
contends in his brief filed December
19, 2011, that in his 1999 case, which resulted in the 2001 conviction,
he “signed for a county lid†and “no strike.â€
In 2003, he received community service after a petty theft conviction in
West Covina. Appellant asserts that, if he had a strike,
he would have done jail time. In 2006,
an Orange County
judge told appellant that “it looks like a strike but it’s not†and told
appellant to change it when he got out.
In 2011, a court in Downey
told appellant he had a strike, but appellant maintains he does not have
one. Appellant recites other parts of
his criminal history in various courts in Southern California
in order to show that he has no strike.
He states that he deserves no more than three and one-half years for the
current case, which he asserts is a grand theft case.
Appellant
recites the same arguments about his strike offense in his brief filed on January 13, 2012. He adds that the Best Buy store did not have
cameras outside and asks how the store personnel knew where the car was
parked. He points out that the witness
said at the preliminary hearing that there were two men loading computers into
the car, but the witness testified at trial that only appellant was doing the
loading. Appellant argues that this
witness does not know, or he is just saying things. Appellant asserts he went in the store and took
two laptops and ran out without threatening anyone or saying anything.
In
appellant’s declaration in support of a request to recall the sentence, which
appellant executed on February 2, 2012 (approximately seven and one-half months
after his June 17, 2011 sentencing), he asserts the same arguments as in his
first and second briefs, i.e., that various trial courts have told him that he
did not have a strike. He attaches what
he asserts is a page from his “strike hearing.â€
Evidentiary
Issues
To answer appellant’s
question, the Best Buy personnel knew where the car was parked because Rima saw
it parked outside the emergency door that triggered the alarm upon being
opened. Rima testified to that fact.
As for the inconsistency between
the number of men Rima saw loading computers into the car, we conclude this
argument is without merit. Defense
counsel cross-examined Rima on this inconsistency. Rima testified that the prior testimony was
incorrect. The transcript of the
preliminary hearing reveals that, apart from the mention of “two males†in
Rima’s narrative answer to the question “What happened?†the rest of Rima’s
testimony was made with reference to one male loading and one man sitting in
the driver’s seat. The jury was
instructed to consider whether the witness made a statement in the past that
was inconsistent with his testimony and also not to automatically reject
testimony just because of inconsistencies or conflicts. The jury was reminded that people sometimes
honestly forget things or make mistakes about what they remember. (CALCRIM No. 226.) The jury reached its decision with all of
these factors in mind. Claims that
witnesses gave inconsistent testimony and lacked credibility are merely
attempts to have this court reweigh the evidence, which is not our role. (People
v. Culver (1973) 10 Cal.3d 542, 548.)
Although
appellant may not have threatened anyone or said anything, his jury was
instructed on aider and abettor liability and on the natural and probable
consequences doctrine. The evidence was
sufficient to support appellant’s convictions in counts 1 and 2 on the basis of
either of these theories, at a minimum.
(CALCRIM Nos. 400, 401, 402, 1603.)
Appellant’s arguments are without merit.
Appellant’s Strike
Conviction
The page appellant proffers as a
page from his strike hearing is a page from the reporter’s transcript of the
which took place on March 3, 2011. On that page, after holding appellant to
answer for the robbery and burglary, Judge Tipton of the Superior Court in Los
Cerritos stated that appellant should “be admitted to bail in the sum—actually,
because of the misfiling of the strike, bail should be
$110,000 . . . .†There
is no record as to what misfiling Judge Tipton was referring. The record shows that when appellant was
arraigned on the amended information filed on March 17, 2011, the strike offense in question was
alleged.
The
probation report confirms appellant’s assertion that his 2001 conviction in
case No. VA057006 was the result of an assault with a firearm (§ 245, subd.
(a)(2)) that was committed in 1999. This
court has also examined and taken judicial notice of the court file from case
No. VA057006, which shows that appellant pleaded guilty on May 8, 2001, and was informed that “this charge
may serve to enhance any future felonies you may be convicted of and may be
considered a strike.†When asked if he
understood, appellant replied, “Yes, maybe.â€
Appellant’s counsel stated, “We’re saying maybe because it’s a
strike.†The prosecutor replied, “The
state of the law isn’t in question but it may be considered as a strike. Do you understand that?†Appellant replied, “Yes.†The prosecutor then indicated for the record
that appellant was an aider and abettor in the crime. Defense counsel noted that, “this also
occurred before Prop. 21 was enacted.â€
To be
considered a strike, a prior conviction must be for a serious felony (as
defined in § 1192.7, subd. (c)), or a violent felony (as defined in § 667.5,
subd. (c)). (§ 667, subd.
(d)(1).) At the time appellant committed
the assault with a firearm, that offense was only a serious felony if the defendant
personally used a firearm, which the prosecution conceded appellant had not
done. (See People v. Rodriguez (1998) 17 Cal.4th 253, 261.) In March 2000, the electorate approved
Proposition 21, which expanded the list of serious felonies to include “assault
with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic
firearm or assault on a peace officer or firefighter, in violation of Section
245,†omitting any requirement for personal use. (§ 1192.7, subd. (c)(31);
273, 276-277.) Although appellant’s
offense, to which he pleaded guilty in May 2001, was committed before the
enactment of Proposition 21, plea bargains are “‘deemed to incorporate and
contemplate not only the existing law but the reserve power of the state to
amend the law or enact additional laws. . . .’†(People
v. Gipson (2004) 117 Cal.App.4th 1065, 1070.)
Appellant’s
current offenses were committed after Proposition 21 was enacted. Section 667.1, which was enacted as part of
Proposition 21, provides that “[n]otwithstanding subdivision (h) of section
667, for all offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g), inclusive, of
Section 667 are to those statutes as they existed on the effective date of this
act, including amendments made to those statutes by the
act . . . .†Thus,
the revised list of qualifying offenses enacted with Proposition 21 brings to
bear the full effect of the three strikes law upon appellant’s current convictions. In People
v. James (2001) 91 Cal.App.4th 1147, we held “that if a defendant’s current
offense was committed on or after the effective date of Proposition 21, a
determination whether the defendant’s prior conviction was for a serious felony
within the meaning of the three strikes law must be based on the definition of
serious felonies in Penal Code section 1192.7, subdivision (c) in effect on
March 8, 2000.†(Id. at p. 1150.) Thus, under
the law in effect at the time of appellant’s current offense, the trial court
properly determined that appellant’s prior conviction constituted a strike for
purposes of the three strikes law.
Moreover, in the instant case, as the trial court noted and as we have
quoted ante, appellant was thoroughly
advised regarding the potential strike consequences of his plea.
We have
examined the entire record, and we are satisfied that appellant’s attorney has
fully complied with his responsibilities and that no
v. Wende (1979) 25 Cal.3d 436, 441.)
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
name="_ftn1" title="">* BOREN, P.
J., ASHMANN-GERST, J., CHAVEZ, J.
name="_ftn2" title="">[1] All
further references to statutes are to the Penal Code unless stated otherwise.
