P. v. Tovar
Filed 4/10/12 P. v. Tovar CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
VICTOR ALVAREZ TOVAR,
Defendant and
Appellant.
2d Crim. No.
B228953
(Super. Ct. No.
1310096)
(Santa
Barbara County)
Victor Alvarez Tovar
appeals the judgment entered after a jury convicted him on two counts of
second degree robbery (§ 211). The
trial court sentenced him to an aggregate sentence of life in prison with the
possibility of parole plus three years, consisting of two concurrent life terms
on the kidnapping to commit robbery counts plus a consecutive three-year term
for the robbery. Appellant contends (1)
the court erred in admitting the preliminary
hearing testimony and other evidence relating to a purportedly unavailable
witness; (2) the sentence imposed on the robbery count should have been stayed
under section 654; (3) his sentence amounts to
court committed instructional error. We shall order the sentence on the robbery
count stayed. Otherwise, we affirm.
STATEMENT OF
FACTS
On January 19, 2009, longtime friends Juan Carlos
Gutierrez and Pedro Lopez were playing basketball when Gutierrez received a
text message from his former girlfriend Ana Mendez. Gutierrez and Mendez had recently broken up
after dating for several months, but Mendez continued to call Gutierrez asking
if he could give her money or a ride somewhere.
Gutierrez had recently loaned Mendez $1,600 that she had yet to pay
back. Mendez had subsequently asked
Gutierrez for an additional $1,200, but he told her he did not have the money.
On this occasion, Mendez
asked if Gutierrez could give her a ride home from the Wal-Mart in Santa
Maria. Mendez
told Gutierrez to come alone because she had something to tell him. Gutierrez, however, brought Lopez along
because they were in Lopez's brother-in-law's car and Lopez had no other
ride. When they arrived at the Wal-Mart
where Mendez was supposed to be waiting, Gutierrez saw appellant and another
man waiting in the parking lot.
Appellant, whom both Gutierrez and Lopez recognized as Mendez's cousin,
told Gutierrez that Mendez was at a nearby store. Appellant and his companion got in the back
seat of the car, and appellant told Gutierrez to drive to several nearby
storefronts. After several unsuccessful
attempts to find Mendez, Gutierrez came to believe she was not there and
stopped driving. Appellant took out what
appeared to be a gun and pointed it at Gutierrez's back. From Lopez's vantage point in the front
passenger seat, it looked as if appellant had loaded the gun by pulling back
the slide. Lopez also saw that the other
man was brandishing a knife.
Appellant demanded money
from Gutierrez. Appellant said that
Mendez needed the money, and claimed that Gutierrez had promised to give it to
her. When Gutierrez denied having any
money, appellant told him to figure out where to get some. Gutierrez was scared, so he gave appellant
$200 that he had on his person.
Appellant then switched seats with Gutierrez, put the gun in his pants,
and started driving around town. The other
man took Gutierrez's cell phone from him and turned it off.
Appellant insisted that
Gutierrez figure out how to get more money and said he needed it to bail Mendez
out of jail. Appellant threatened to
"bury" Gutierrez and Lopez.
Lopez told appellant that he had money at his house. Appellant drove to Lopez's house and went
inside with him while the other man stayed in the car with Gutierrez. After Lopez gave appellant $200, they got
back in the car and appellant drove away.
Appellant drove to an alley. He told Gutierrez and Lopez not to call the
police or talk to anybody about what had happened because he knew where they
both lived and worked. Appellant and his
companion then got out of the car, returned Gutierrez's phone, and left. The next day, Gutierrez and Lopez told their
boss what had happened and he took them to the police station. When Mendez called Gutierrez that same day,
he asked her if appellant had given her the money. She replied that he had.
After appellant was
arrested, Mendez found Gutierrez at Lopez's house and asked him to drop the
charges against appellant. Mendez was
subsequently arrested after she went to Gutierrez's workplace and his boss
called the police. When the police
interviewed Mendez's roommate, he told them that a toy BB gun Mendez had bought
him was missing. No gun was ever found.
Mendez's
Preliminary Hearing Testimony
Mendez invoked her
testify at appellant's trial. She was subsequently
declared unavailable to testify and her preliminary hearing testimony was read
into evidence pursuant to Evidence Code section 1291. Mendez testified that she had been dating
Gutierrez for about three to four months when the crime took place. She needed money to pay traffic fines, but
falsely told appellant she was in jail so that he would give the money to
her. Appellant saw Mendez crying and
told her he would "ask a friend" if he could borrow the money she
needed.
Mendez believed that appellant
had contacted Gutierrez on the night of the incident to ask for a ride, and not
because he was planning to get money from him on her behalf. When she called Gutierrez later that night,
she thought he was driving appellant from Wal-Mart to her house. At around 11:30 p.m., appellant arrived at
Mendez's house and gave her $400. When
she asked where the money came from, appellant told her that Gutierrez had
given it to him to pass along to her.
Mendez also learned that $200 of the money had come from Lopez, and she
believed that Gutierrez would pay Lopez back.
Mendez kept $270 of the money and loaned appellant the rest.
At some point after the
incident, Gutierrez asked Mendez if she had received the money from
appellant. Mendez replied in the affirmative
and asked if there was a problem.
Gutierrez did not say he had been robbed, but was merely concerned that
appellant had not given her the money.
When Mendez offered to pay the money back to appellant on February 15,
he told her not to worry about it. She
made the offer because the money had "caused a whole bunch of
problems" and Gutierrez "was saying that he was robbed, and in
reality, he wasn't."
Mendez admitted that she
was lying during her initial police interview when she said appellant was her
cousin; he was actually her new boyfriend.
Mendez had also instructed her brother to tell Gutierrez that appellant
was her cousin because she did not want him to know she was dating someone
else.
Mendez's
Police Interview
Detective Michael
McGehee interviewed Mendez after her arrest.
Portions of an audio recording and transcript of the interview, along
with Detective McGehee's testimony regarding the statements Mendez made during
that interview, were admitted to impeach Mendez's preliminary hearing testimony. During the interview, Mendez initially denied
knowledge of the robbery and subsequently claimed that the robber's name was
Jerry Gonzales. She eventually admitted
that it was appellant. Mendez also
admitted falsely telling Gutierrez she was incarcerated so that he would give
her money, and that Gutierrez told her he had been robbed by her
"cousin" at gunpoint.
name="_ftnref2" title="">[2]
During the interview,
Mendez referred to appellant as her cousin and never admitted that he was her
boyfriend. She claimed that on the night
of the incident,
appellant
had overheard her crying as she spoke to Gutierrez on the phone and asked him
for money. Appellant told Mendez,
"I'll take care of it." That
same night, appellant and another individual Mendez did not know called her using
three-way dialing and told her to tell Gutierrez that she was waiting for him
outside of Wal-Mart. Mendez agreed to
the plan and made the call from her house.
Appellant returned to Mendez's house later that night. When Detective McGehee asked if she
"knew they were gonna go get money," Mendez replied: "I didn't think they were gonna go over
there with him. I didn't think they
would do anything like that."
Mendez's demeanor and body language throughout the interview led
Detective McGehee to believe that she was lying to protect appellant.
Defense
Officer Felix Diaz of
the Santa Maria Police Department spoke to Gutierrez and Lopez when they came
to the police station to report the kidnapping and robbery. Gutierrez told Officer Diaz that the incident
began when he received a text message from Mendez while playing soccer with
friends. He also identified appellant as
the suspect, and said the gun he used had a chrome color.
Manuel Edward Anaya is a
friend of appellant who had lived with him for about six months. Appellant introduced Mendez to Anaya, and he
knew Gutierrez as Mendez's ex-boyfriend.
Either Mendez or appellant told Anaya that Mendez had introduced
appellant to Gutierrez as her cousin.
Anaya believed that Mendez told people appellant was her cousin so that
she could keep receiving money from Gutierrez.
After the incident,
appellant told Anaya that he had not robbed Gutierrez. Appellant claimed he had peacefully obtained
the money from Gutierrez and turned it over to Mendez. Appellant told Anaya that he did this alone,
and that afterwards Gutierrez had given him a ride home. Appellant also said that Mendez said she
needed the money to pay traffic fines and that Gutierrez had promised to give
it to her.
DISCUSSION
I.
Appellant contends the
court violated his constitutional right
to confrontation of witnesses by admitting Mendez's preliminary hearing
testimony on the ground that she was unavailable to testify at trial. The People counter that the claim is
forfeited because appellant did not object to the court's finding that Mendez
was unavailable. In his reply brief,
appellant essentially concedes that he did not preserve the claim below. He instead relies on the rule that "[a]
defendant is not precluded from raising for the first time on appeal . . .
certain fundamental, constitutional rights.
[Citations.]" (
276-277, disapproved on other grounds in People
v. French (2008) 43 Cal.4th 36, 47.)
He alternatively urges us to exercise our discretion to address the
claim "in order to decide an important issue."
We conclude that the
claim is forfeited. Our Supreme Court
has made clear that a claimed violation of one's rights under the confrontation
clauses of the state and federal Constitutions is forfeited on appeal if not
raised in the trial court. (
166; People v. Seijas (2005) 36
Cal.4th 291, 301 (Seijas).) Appellant also fails to persuade us that it
would be an appropriate exercise of our discretion to consider the issue
notwithstanding appellant's failure to preserve it below.
In any event, the claim
lacks merit. "Although defendants
generally have the right to confront their accusers at trial, this right is not
absolute. 'If a witness is unavailable
at trial and has testified at a previous judicial
proceeding against the same defendant and was subject to cross-examination
by that defendant, the previous testimony may be admitted at trial.' [Citations.]
The defendant 'must not only have had the opportunity to cross-examine the witness at the previous hearing,
he must also have had "an interest and motive similar to that which he has
at the [subsequent] hearing."'
[Citation.] Under these rules,
'we have routinely allowed admission of the preliminary hearing testimony of an
unavailable witness.'
[Citation.]" (
303.) "A witness who successfully asserts
the privilege against self-incrimination
is unavailable to testify for these purposes.
[Citations.]" (
(a)(1).) Because the relevant facts are
undisputed, we independently review the trial court's finding that Mendez
validly asserted the privilege and was thus unavailable to testify. (Seijas,
at p. 304.)
In determining whether
the court erred in accepting Mendez's assertion of her privilege against
self-incrimination and declaring her unavailable to testify, we are mindful
that "[t]o invoke the privilege, a witness need not be guilty of any
offense; rather, the privilege is properly invoked whenever the witness's
answers 'would furnish a link in the chain of evidence needed to prosecute' the
witness for a criminal offense." (
617.) "To deny an assertion of the
privilege, 'the judge must be "'perfectly
clear, from a careful consideration of all the circumstances in the case,
that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate."' [Citations.]" (Seijas,
supra, 36 Cal.4th at pp. 304-305.)
"California's Evidence Code states the test broadly in favor of the
privilege: 'Whenever the proffered
evidence is claimed to be privileged under Section 940 [the privilege against
self-incrimination], the person claiming the privilege has the burden of
showing that the proffered evidence might tend to incriminate him; and the
proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence
incriminate the person claiming the privilege.'
(Evid. Code, § 404, italics added.)" (Seijas,
at p. 305.)
The
court did not err in accepting Mendez's assertion of her privilege against
self-incrimination, and in thereafter declaring her unavailable to
testify. In arguing to the contrary,
appellant essentially complains that Mendez invoked the privilege before she
had been asked any questions that had a tendency to incriminate her. The testimony of Gutierrez and Lopez,
however, strongly suggested that Mendez had facilitated the crimes by inducing
Gutierrez to "pick her up" under false pretenses. Gutierrez also testified that the day after the
crimes Mendez verified that appellant had given her the money taken from
Gutierrez and Lopez. Moreover, the
prosecutor made it clear that Mendez would not be offered immunity in exchange
for her testimony. Mendez also met with
separate counsel, who informed the court of his conclusion that Mendez
"has valid grounds to assert the Fifth." Under the circumstances, the court did not
err in accepting Mendez's assertion of the privilege and in thereafter declaring
her unavailable to testify. It
necessarily follows that the court did not err in admitting the transcript of
the testimony Mendez gave at appellant's preliminary hearing.
Even if it could be said
that the court erred in declaring Mendez unavailable to testify, the error
would be harmless. Gutierrez and Lopez
both identified appellant, an individual they both knew, as the perpetrator of
the crimes against them. They also each
offered consistent testimony regarding the details of those crimes. The only evidence appellant offered in his
defense essentially consisted of a friend's statement that appellant had denied
committing the crimes. Moreover,
Mendez's preliminary hearing testimony was clearly directed at exculpating
appellant. Indeed, Mendez took the
position that Gutierrez and Lopez had fabricated the entire incident. Under the circumstances, any error in
admitting Mendez's preliminary hearing testimony was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Cage (2007) 40 Cal.4th 965, 991–992 [Chapman harmless error analysis applies where evidence was admitted
in violation of the confrontation clause].)
In light of this conclusion, any error in overruling appellant's
objections to certain portions of Mendez's testimony was also necessarily
harmless.
II.
Mendez's
Police Interview
Appellant asserts that
the court also violated his confrontation rights by admitting the audio
recording and transcript of portions of Mendez's police interview and Detective
McGehee's testimony regarding the interview.
The People respond that the claim is forfeited because it was not raised
below, and in any event lacks merit.
We conclude the claim is
forfeited because appellant did not object to the evidence on the ground that
its admission would violate his confrontation rights.
Mendez's police interview and Detective McGehee's testimony regarding said
interview should have been excluded.
Because Mendez was declared unavailable, the admissibility of any
evidence regarding her prior inconsistent statements was governed by Evidence
Code section 1294. Pursuant to that
section, evidence of prior inconsistent statements of an unavailable witness
whose former testimony has been admitted is inadmissible hearsay unless it
consists of (1) "A video recorded statement introduced at a preliminary hearing or prior proceeding concerning
the same criminal matter," or (2) "A transcript, containing the
statements, of the preliminary hearing or prior proceeding concerning the same
criminal matter." (Evid. Code,
§ 1294, subd. (a), italics added.)
It is undisputed that
the recording of Mendez's police interview was not introduced at the
preliminary hearing. Although
subdivision (b) of Evidence Code section 1294 provides an exception where the defendant
chooses to "examine or cross-examine any person who testified at the
preliminary hearing or prior proceeding as to the prior inconsistent statements
of the witness," Detective McGehee's testimony does not qualify because he
did not testify at the preliminary hearing.
Because neither Mendez's police interview nor Detective McGehee's
testimony were admitted at the preliminary hearing, they were inadmissible
hearsay and should have been excluded. (
Cal.App.4th 400, 410 (Martinez).)
that any error in admitting Mendez's preliminary hearing testimony was
harmless, we conclude that the erroneous admission of the evidence regarding
Mendez's police interview was also harmless.
As the People aptly note, "At most, Mendez's inconsistent
statements suggested there was a conspiracy between her and appellant to plan
the robbery. Whether that evidence were
admitted or not, there was no doubt that the victims believed appellant was the
robber." Because the properly
admitted evidence was overwhelming and the extrajudicial statements
incriminating appellant were essentially cumulative of that evidence, the error
in admitting the evidence was harmless beyond a reasonable doubt. (Chapman
v. California, supra, 386 U.S. at p. 24; Martinez, at p. 410.)
III.
Section
654
Appellant asserts that
the three-year sentence imposed on count 3 for the robbery of Lopez should have
been stayed pursuant to section 654 because he was already punished in count 2
for kidnapping Lopez to commit robbery.
The People correctly concede the point.
Section 654 bars multiple punishment for both robbery and kidnapping to
commit robbery where both crimes are committed pursuant to a single intent or
objective. (People v. Lewis (2008) 43 Cal.4th 415, 519.) It is undisputed that the kidnapping to
commit robbery and the robbery of Lopez were committed pursuant to a single
intent or objective, i.e., to obtain money by force or fear. Accordingly, we shall order the judgment
modified to reflect a stayed sentence on count 3.
IV.
Cruel
and Unusual Punishment
Appellant contends that
his sentence of life with the possibility of parole plus three years amounts to
cruel and unusual punishment under the federal and state Constitutions. (Cal. Const., art. I, § 17; U.S. Const., 8th
Amend.) Because this claim was not
raised in the trial court, it is forfeited.
(People v. Norman (2003) 109
Cal.App.4th 221, 229.) In any event, the
claim lacks merit.
A sentence is cruel or
unusual under California law if "'it is so disproportionate to the crime
for which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity.'" (
at p. 230, quoting In re Lynch (1972)
8 Cal.3d 410, 424.) In making that
determination, courts consider the nature of the offense and offender, and
compare the sentence with sentences imposed for more serious crimes in
California and for the same crime in other jurisdictions. (Norman,
at p. 230, citing Lynch, at pp.
425-427.) Similarly, a sentence is cruel
or unusual under the Eighth Amendment to the United States Constitution if it
is "grossly disproportionate to the severity of the crime." (Rummel
v. Estelle (1980) 445 U.S. 263, 271; Ewing
v. California (2003) 538 U.S. 11, 20.)
The steps of the analysis under federal constitutional law are virtually
identical to those applied under state law, and "the federal Constitution
affords no greater protection than the state Constitution . . . ." (People
v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) In addition, the length of a sentence for a
felony "is purely a matter of legislative prerogative," and courts
should be reluctant to review such legislative mandates. (Rummel,
at p. 274, fn. omitted; Hutto v. Davis
(1982) 454 U.S. 370, 374.)
In arguing that his
sentence amounts to cruel and unusual punishment, appellant notes that he has
no prior adult felony convictions and that his criminal history does not
"reveal any violence or any particular heinous crimes, or crimes that show
a tendency to commit violence against individuals." As for the nature of his current offenses,
appellant offers that "[n]o one was injured and there was no physical
violence." He also claims that
"there was confusion about the money that was provided, as one of the
victims admitted he regularly gave money to Ana Mendez and knew that the
appellant was also a friend of Mendez."
He goes on to question the victims' testimony that they feared for their
lives because they "didn't rush to report the crime to the police, but did
so only at the urging of their employer."
Appellant's attempts to
minimize the nature of the offenses of which he was convicted are
unavailing. In deciding whether a
particular sentence amounts to cruel and unusual punishment, the facts of the
case must be viewed in the light most favorable to the judgment. (People
v. Martinez (1999) 76 Cal.App.4th 489, 496.) Appellant urges us to do the opposite. He also ignores any comparison of his
sentence to those imposed for more serious crimes in California and the same
crime in other states, as is required in a cruel and unusual punishment
analysis. (People v. Norman, supra, 109 Cal.App.4th at p. 230.) The court took the nature of the offense and
offender into consideration when it declined to impose consecutive life terms
on each of the two counts of kidnapping for robbery. Moreover, the statutorily-prescribed
punishment for the crime of kidnapping to commit robbery is life with the
possibility of parole. (§ 209,
subd. (b)(1).) "Fixing the penalty
for crimes is the province of the Legislature, which is in the best position to
evaluate the gravity of different crimes and to make judgments among different
penological approaches.
[Citations.] Only in the rarest
of cases could a court declare that the length of a sentence mandated by the
Legislature is unconstitutionally excessive.
[Citations.] This is not such a
case." (People v. Martinez, supra, 76 Cal.App.4th at p. 494.) Appellant simply fails to demonstrate that
his sentence "shocks the conscience and offends fundamental notions of
human dignity." (
fn. omitted.) His claim of cruel and
unusual punishment accordingly fails.
V.
CALCRIM
No. 3517
Appellant contends the
court erred by instructing the jury with CALCRIM No. 3517. He asserts that although the instruction is
"technically correct," it is "ambiguous or misleading" in
that it fails to make clear that the jury was free to consider whether he was
guilty of lesser included offenses prior to deciding whether he was guilty of
the greater offenses, as contemplated in People
v. Dennis (1998) 17 Cal.4th 468, 536.
This claim is forfeited
because it was not raised below.
"Generally, a party forfeits any challenge to a jury instruction
that was correct in law and responsive to the evidence if the party fails to
object in the trial court.
[Citations.]" (
713, 719 (Franco).) While the rule of forfeiture does not apply
notwithstanding the failure to object where the alleged error affects the
defendant's substantial rights (ibid.),
appellant fails to make such a showing here.
Appellant purports to
find fault in the first sentence of the instruction, which states: "If all of you find that the defendant
is not guilty of a greater crime, you may find him guilty of a lesser crime, if
you are convinced beyond a reasonable doubt that the defendant is guilty of
that lesser crime." Although the
instruction goes on to plainly state that "[i]t is up to you to decide the
order in which you consider each crime and the relevant evidence,"
appellant argues that this statement is "buried in the middle of the
section" such that it "does not resolve the misleading condition presented
at the outset." As appellant puts
it, "[t]he first paragraph is the most important paragraph at the
sentencing stage and conditions all following paragraphs."
In reviewing appellant's
claim, we must determine whether the jury was reasonably likely to have
construed the instruction in a manner that violated appellant's rights. (People
v. Rogers (2006) 39 Cal.4th 826, 873; Franco,
supra, 180 Cal.App.4th at p. 720.)
We review the alleged error in the context of the entire record of
trial, including other instructions and argument by counsel, because courts
assume jurors are capable of understanding and correlating all of that
information. (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Considering CALCRIM No.
3517 and the record as a whole, it is clear that no reasonable juror would
construe the instruction in the manner asserted by appellant. The instruction could not be clearer in its
statement that "[i]t is up to you to decide the order in which you
consider each crime and the relevant evidence . . . ." "'Jurors are presumed to be intelligent,
capable of understanding instructions and applying them to the facts of the
case.' [Citation.]" (People
v. Lewis (2001) 26 Cal.4th 334, 390.)
Although appellant contends the prosecutor made an argument
"arguably suggesting" that the jury could not consider lesser
included offenses without first finding him not guilty of the corresponding
greater offenses, the jury was also instructed that it must follow the law as
explained by the court and must follow the court's instructions if they
conflict with the attorneys' comments.
(CALCRIM No. 200.) We presume the
jury understood and followed this instruction.
(People v. Morales (2001) 25
Cal.4th 34, 47.)
DISPOSITION
The three-year
consecutive sentence imposed on count 3 is ordered stayed pursuant to section
654. The clerk shall prepare an amended
abstract of judgment and forward a copy thereof to the
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
James
F. Iwasko, Judge
Superior
Court County of Santa Barbara
______________________________
Richard C. Gilman, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and
Respondent.
are to the Penal Code.
made to Mendez the day after the incident.
