P. v. Valencia
Filed 1/29/14 P.
v. Valencia CA2/3
NOT TO BE PUBLISHED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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE
PEOPLE,
Plaintiff and Respondent,
v.
GABRIEL
CERVANTES VALENCIA,
Defendant and Appellant.
B246514
(Los
Angeles County
Super. Ct. No. KA095355)
APPEAL
from a judgment of the Superior Court of
Los Angeles County,
Robert M. Martinez, Judge. Modified and, as modified, affirmed with
directions.
Lynette
Gladd Moore, 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, Assistant
Attorney General, Stephanie C. Brenan and Esther P. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
Appellant Gabriel
Cervantes Valencia appeals from the
judgment entered following his convictions by jury on count 1 – second degree
robbery (Pen. Code, § 211) with a principal personally using a firearm (Pen.
Code, § 12022.53, subds. (b) & (e)(1)), count 2 –
Code, § 12021, subd. (a)(1)), and count 3 – dissuading a witness by force
or threats (Pen. Code, § 136.1, subds. (b)(1) & (c)(1)) with findings
as to each offense the offense was committed for the benefit of a criminal
street gang (Pen. Code, § 186.22, subd. (b)(1)), appellant was released on bail
or on his own recognizance when he committed the offense (Pen. Code, § 12022.1),
he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and he
suffered a prior serious felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced appellant to prison for a
total of 28 years four months. We modify
the judgment and, as modified, affirm it with directions.
Viewed in
accordance with the usual rules on appeal (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency
of which is undisputed except as to count 3, established that on August 25, 2011, shortly before midnight, appellant robbed Danielle Martinez in Azusa as follows.
her car which was parked in front of the apartment building of her friend, Jose
Contreras, and she was waiting for him.
A van, its headlights on, drove up and parked in front of, and facing, Martinez’s car. Martinez testified her
headlights were on in the beginning, she later turned her car off, and it was
not running at the time of the incident.
A man exited the
driver’s side of the van, approached Martinez’s driver’s side
window, and asked her to roll it down. She
complied. The man asked Martinez what she was
doing there and she replied she was picking up Contreras. The man asked where Contreras was, and Martinez replied she was
waiting for him. The man lifted the
right side of his shirt and displayed a gun in his waistband. Martinez testified the
man (hereafter, gunman) asked her if “[she] had his money or something.†The gunman asked Martinez to give him her wallet
and purse, and also asked if Martinez was spending his
money. He was about two feet from Martinez.
Martinez began throwing
everything out of her car. At that time,
Martinez saw a second man emerge from
the passenger side of the van and approach her on the driver’s side of her
car. The second man began threatening Martinez and told her to
throw her belongings into the street.
Martinez’s car had four
doors. She opened the driver’s door and
exited. The gunman backed up perhaps a
foot. Martinez opened the left
rear door and entered the back of her car.
She subsequently threw other items out of the car. The second man came to the left rear door
where Martinez was and told her
to hurry and throw her things out. Martinez testified the
second man got pretty close because he hit her on the back of the head, but she
also testified she did not know who hit her.
Martinez also testified
that the gunman hit her on the head and that she told this to an officer. Martinez was in the back
seat when she was hit on the back of her head.
After Martinez was hit on the
head, Contreras arrived and asked what was happening. Martinez was in the back
seat and the two men were on the driver’s side of Martinez’s car. Martinez testified “. . .
I heard them two yell at him saying something, ‘Where’s my money?’ †Contreras fled and the two men chased
him. About a minute later, the two men
returned and put Martinez’s property into
the van. Appellant robbed Martinez of various
property, including purses, money, credit cards, and her driver’s license
reflecting her personal information.
One of the two
men wrote down Martinez’s license plate
number. Martinez did not remember
which of the two men wrote down her license plate number. Neither man said anything to her after one
wrote down her license plate number. Martinez denied telling
an officer “they threatened [Martinez] that they had
[her] personal information and knew where to find [her] if [she] were to tell
anyone.â€
remembering she told this to an officer.
After one of the two men wrote down her license plate number, they left
the scene.
Martinez testified there
were “only two guys†in this case and she did not see more than two people. About five to seven minutes passed from the
time the two men first approached Martinez to the time they
finally left. Martinez testified the gunman
and second man were probably equally close to Martinez “from where
[she] was sitting.â€
Azusa Police
Officer Robert Chivas testified as follows.
About 11:57 p.m. on August 25, 2011, Chivas responded to the
location and talked with Martinez. She told him that before they left, one of
the subjects wrote down her license plate number, although she did not know
whether that subject was the gunman or the second man. The following then occurred during the
People’s direct examination of Chivas: “Q. And
then what else did she tell you about one of those two subjects before they
left? [¶] A.
They had made a mention something to the effect of that they now had her
information and that they would be able to find her if she -- if she told
anybody what had happened.â€
Contreras
testified as follows. On the night of
the robbery, he saw a van drive up in front of Martinez’s car and he
fled onto a golf course. He knew a
person named Gabriel, and appellant was Gabriel. Appellant was an Azusa 13 gang
member. Contreras was in protective
was a “greenlighter,†and he was worried and nervous. During cross-examination, Contreras denied he
saw a gun on the night of August 25, 2011. Contreras testified “from him opening his
hood of his car and from my knowledge from the past, I knew that’s where he
would put his gun.â€
Azusa Police Officer Jason Kimes testified that about 11:57 p.m. on August 25, 2011, he responded to the crime
scene and Contreras told him three persons exited a van, Contreras fled, and
the three chased him. One of the three
was the van’s driver, Gabriel.
Kimes also testified Contreras said the following. Gabriel and his “three friends†first
approached Contreras and, after Contreras fled, Gabriel and his three friends
went in the van, then went to Contreras’s friend, who was sitting in a parked
car. Gabriel then took out what appeared
to be a black semiautomatic handgun from under the hood of the van, and “the
three subjects approached [Contreras’s] friend who was sitting in the car and
robbed her.â€
Azusa Police Detective
Thomas Avila interviewed Contreras at the station and Contreras told him the
following. Gabriel’s van pulled up right
beside Martinez, and “they just
jumped out the car and they did what they did.â€
Contreras did not get a good look at what happened until he turned
around. Contreras said, “By the time I
turned around, I just heard Danielle like screaming kind of and then I just
seen -- I seen them open up the hood of their car and from my understanding
from before, I know . . . in the hood of his car he always -- that’s where he
has his stuff . . . .†Avila asked what
Contreras meant by “stuff,†and Contreras replied, “. . . that’s where he puts
the stuff. You know, he puts the drugs
or his gun. In the hood it’s like he has
like a stash pot in there.†Contreras
said “. . . I don’t know why he would pull out any drugs at that
time, so I was thinking that he was maybe pulling out his gun, . . .â€
Contreras told Avila that Contreras
guessed “he . . . threatened her†and took her belongings. Contreras also said “it looked like a gunâ€
but he was on the golf course and pretty far from the scene. Contreras also told Avila the
following. Contreras could not describe
the gun in detail. Gabriel was holding
what Contreras thought was a gun. Contreras
did not know exactly what happened but they pulled away and left. Contreras returned and Martinez said “they
pistol whipped her.â€
Avila testified that
on October 5, 2011, he was driving
Contreras to court. Avila testified
without objection, “During general conversation, Mr. Contreras had said he got
a phone call from Mr. Valencia. The phone call he had told -- or was Mr. Contreras
getting ahold of victim Martinez to tell her not
to testify in this case against him.â€
questions based on evidence in this case, Avila opined at trial appellant was an
Azusa 13 gang member and the robbery, possession of a firearm, and threat at
the scene, as well as a telephone threat weeks later, were committed for the
benefit of the gang. Appellant presented
no defense witnesses.
Appellant claims (1) there is insufficient evidence
supporting his conviction on count 3, and (2) Penal Code section 654 barred
multiple punishment on counts 1 and 2.
1. There
Was Sufficient Evidence Supporting Appellant’s Conviction on Count 3.
a.
During jury argument, the prosecutor argued appellant
committed the offense alleged in count 3 based on the dissuasion that occurred
on August
25, 2011, i.e., because, according to the
prosecutor, appellant told Martinez “not to tell anybody because they’ve got her information.â€
committed the offense by force and threat because Martinez was
hit on the head with a gun. The
prosecutor did not, during jury argument, refer to appellant’s October 5, 2011 telephone call to Contreras (although appellant’s counsel did). Following jury argument, the court told the
jury that count 3 “may only be based on evidence relating to August 25, 2011†and “may only be based on events of August 25, 2011, and not later in some
telephone call.â€
title="">[5] The jury convicted appellant on count 3 as
previously indicated.
b.
Appellant claims there is insufficient evidence
supporting his conviction for dissuading a witness by force or threat (count
3). He does not dispute that on August
25, 2011, he robbed Martinez and she was the victim of dissuasion proscribed by
Penal Code section 136.1, subdivisions (b)(1) and (c)(1). Instead, appellant argues there was
insufficient evidence he was the direct perpetrator of the August 25, 2011 dissuasion, and there was insufficient evidence he aided and abetted the
dissuader. We reject the claim. As we discuss below, there was sufficient
evidence appellant was a direct perpetrator of the August 25, 2011 dissuasion. There is no need to
reach the issue of whether he was an aider and abettor.
First, although the prosecutor asked Chivas, “And then what
else did [Martinez] tell you about
left?†(italics added), Chivas replied without objection, “They had made a mention something to the effect of that
if she told anybody what had happened.†(Italics
added.) Chivas’s reply provided
substantial evidence appellant and
his confederate directly perpetrated the August
25, 2011 dissuasion.
Second,
following jury argument, the court commented
the jury had not been advised that “the only basis for count 3 is the incident
at the time of the robbery and not any other point.†(See fn. 5, ante.) The prosecutor
indicated that during jury argument he had referred only to that incident. Fairly read, the prosecutor’s comment
indicated that, during jury argument, he had engaged in an election of
offenses, i.e., he had elected to base count 3 solely on the August 25, 2011 alleged
criminal dissuasion and not on appellant’s October 5, 2011 telephone call to
Contreras. (See People v. McKinzie (2012) 54 Cal.4th 1302, 1368;
60 Cal.App.4th 1529, 1534.) The trial court’s subsequent instruction to
the jury count 3 “may only be based on evidence relating to August 25, 2011†and “may only be based on events of August 25, 2011, and not later in some
telephone call†confirmed the
prosecutor’s election.
However, Avila’s testimony about appellant’s October 5, 2011
telephone call to Contreras was admitted into evidence without objection. Although count 3 was based on the alleged dissuasion
that occurred on August 25, 2011, Avila’s testimony about appellant’s
October
5, 2011 telephone call, fairly read,
indicated that on that date appellant engaged in additional dissuading conduct,
i.e., he told Contreras to tell Martinez not to testify against appellant in this case. There is no dispute that on August 25, 2011, either appellant or his confederate engaged in criminal dissuasion to
prevent Martinez from testifying in the present case.
On October
5, 2011, appellant engaged in substantially
similar criminal dissuasion to prevent the exact same person, Martinez,
from testifying in the exact same case.
The October
5, 2011 telephone call and August 25, 2011 dissuasion shared common features that were sufficiently distinctive
they provided substantial evidence appellant was the person who committed both
acts. (See People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, 403.)
Third,
even if, as appellant suggests, only appellant’s confederate directly and
orally perpetrated the August 25, 2011 dissuasion,
there was still substantial evidence appellant engaged in that dissuasion. Based
on the evidence, the jury reasonably could have concluded appellant and a confederate
jointly robbed Martinez. There was also substantial
evidence appellant and the confederate worked together and were in
presence. Thus, the jury reasonably
could have concluded beyond a reasonable doubt that even if appellant did not directly
and orally perpetrate the August 25, 2011 dissuasion, his confederate
did and appellant heard him do so. Although
appellant suggests he was unaware of the August 25, 2011 dissuading
threat, he concedes it “was established . . . appellant . . . was present when
the threat was made.â€
Our Supreme Court has observed, “ ‘When a person
makes a statement in the presence of a party to an action under circumstances
that would normally call for a response if the statement were untrue, the
statement is admissible for the limited purpose of showing the party’s reaction
to it. [Citations.] His silence,
evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ †(People
v. Riel (2000) 22 Cal.4th 1153, 1189, italics added.) This admission is an adoptive admission. (Ibid.)
In sum, even if appellant’s confederate was the only direct, oral perpetrator
of the August 25, 2011 dissuasion, the jury reasonably could have concluded beyond
a reasonable doubt appellant’s confederate, in
appellant’s presence and within his hearing, orally stated “they†had
Martinez’s information and “they†would be able to find her if she told anyone
what had happened. The statement of
appellant’s confederate thus indicated appellant’s confederate
would be able to find her, and implied criminal
dissuasion by appellant’s confederate and
appellant.
Neither Martinez nor Chivas testified appellant responded to, or denied, the statement of
appellant’s confederate. Thus, there was
substantial evidence appellant’s confederate made a statement in the presence
of appellant under circumstances that would normally call for a response if the
statement were untrue (because the statement implied the confederate
Martinez), appellant reacted with silence, and his silence was a tacit
admission appellant had Martinez’s
information and would be able to find her (and was thus dissuading her). Appellant’s silence was an adoptive admission
of his confederate’s statement. We
conclude there was sufficient evidence to convince a rational trier of fact,
beyond a reasonable doubt, appellant was the direct perpetrator of the August 25, 2011 dissuasion. (Ochoa,
supra, 6 Cal.4th at p. 1206.)
2.
Punishment on Counts 1 and 2.
During the December 10, 2012 sentencing hearing in the
present case, the court sentenced appellant to prison on count 1 (the robbery)
and count 2 (possession of a firearm by a felon), then stated Penal Code
section 654 did not apply “since the crime [count 2] was committed in advance
of the commission of the robbery.â€
Appellant claims Penal Code section 654 barred multiple punishment on
counts 1 and 2. He argues he was
convicted on counts 1 and 2 but the robbery and possession of a firearm,
respectively, were simultaneous with the result Penal Code section 654 barred
multiple punishment on those counts. He
also argues that as to the robbery, the jury found true the allegation a
found not true the allegation appellant
personally used a firearm; therefore, he possessed the firearm for purposes of count 2 only as an aider and
abettor, and there is insufficient
evidence that, prior to the robbery,
he possessed the firearm for purposes of count 2 as an aider and abettor. We reject the claim. As we
discuss below, there was sufficient evidence appellant was a direct perpetrator
of the August
25, 2011 firearm possession prior to the
robbery. There is no need to reach the
issue of whether he was an aider and abettor.
Penal Code
section 654, as interpreted by our Supreme Court, prohibits multiple punishment
for offenses committed during an indivisible transaction. Whether a course of conduct is indivisible
depends on the intent and objective of the actor. (People
v. Perez (1979) 23 Cal.3d 545,
551.) If all offenses are incident to
one objective, the defendant may not be punished for more than one. However, if the defendant entertained
multiple criminal objectives which were independent of and not merely
incidental to each other, the defendant may be punished for independent
violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of
conduct. (Cf. People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3.)
Whether Penal Code
section 654 applies in a given case is a question of fact for the trial court,
which is vested with broad latitude in making its determination. The trial court determines a defendant’s
intent and objective under section 654 by a preponderance of the evidence. (Cf. People v. Cleveland (2001) 87 Cal.App.4th 263, 266,
268-270 (Cleveland); see People v.
Harris (2009) 171 Cal.App.4th 1488, 1497-1498 (Harris); People v. Lewis (1991) 229 Cal.App.3d 259, 264;
500, 515.) The court’s findings will not
be reversed on appeal if there is any substantial evidence to support
them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (
We view the evidence in the light most favorable to respondent and
presume in support of the sentence the existence of every fact the trial court
reasonably could have deduced from the evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 627.)
In
present one, our Supreme Court stated, “The standard for applying section 654
in the circumstances of this case was restated in People
Venegas (1970) 10 Cal.App.3d 814.
‘Whether a violation of section 12021, forbidding persons convicted of
felonies from possessing firearms concealable upon the person, constitutes a
divisible transaction from the offense in which he employs the weapon depends
upon the facts and evidence of each individual case. Thus where the evidence shows a possession
distinctly antecedent and separate from the primary offense, punishment on both
crimes has been approved. On the other
hand, where the evidence shows a possession only in conjunction with the
primary offense, then punishment for the illegal possession of the firearm has
been held to be improper where it is the lesser offense.’ [Citation.]â€
(Bradford, at p. 22.) In Jones,
the appellate court “conclude[d] that section 654 is inapplicable when the
evidence shows that the defendant arrived at the scene of his or her primary
crime already in possession of the firearm.â€
(Jones, supra, 103 Cal.App.4th at p. 1145.)
In the present
case, there was substantial evidence from the testimony of Martinez, Contreras,
and Kimes, and the statements Contreras made to Avila, considered together, that
on August 25, 2011, appellant arrived at the crime scene and, consistent with
his habit, possessed on that day a gun in a stash location under the hood of
his van. This was gun possession on
August 25, 2011, that was distinctly antecedent and separate from, and unrelated
to, the robbery, and was not merely possession in conjunction with the robbery. The fact Contreras, who was in protective
custody and was worried and nervous at trial, may have provided conflicting
testimony as to whether he saw appellant in possession of a gun does not compel
a contrary conclusion.
The fact the
jury found not true an allegation appellant personally used a firearm when
committing the robbery (count 1) does not compel a contrary conclusion. Whether Penal Code section 654 applies is
manifestly a sentencing issue (see Cleveland, supra,
87 Cal.App.4th at p. 268) and, as mentioned, the standard of review applicable to a sentencing
court when determining a section 654 issue is preponderance of the
evidence.
A jury’s not true
finding on a personal use allegation relating to an offense generally does not
bind a sentencing court from redetermining the personal use issue as a basis
for sentencing based on the
preponderance of the evidence standard because the not true finding merely
means the jury was not convinced beyond a reasonable doubt on the personal use
issue. (Cf. Harris, supra, 171 Cal.App.4th 1488, 1497-1498; see
554.) The sentencing court was free to
conclude appellant directly possessed the firearm during the robbery and, in
any event, the issue of whether appellant engaged in antecedent, separate firearm possession
was not presented by the Penal Code section 12022.53, subdivision (b)
enhancement allegation appellant personally used
a firearm in the commission of
robbery.
3. Appellant
Is Entitled to Additional Precommitment Credit.
Appellant
was arrested on August 29, 2011, and remained in custody until the court
sentenced him on December 10, 2012, a total of 470 days, inclusive. At the December 10, 2012 sentencing hearing,
the court orally awarded appellant 523 days of precommitment credit, consisting
of 455 days of custody credit and 68 days of conduct credit. This award is also reflected in the abstract
of judgment. Respondent concedes
appellant’s claim he is entitled to an additional 15 days of custody
credit. We accept the concession. Respondent also correctly notes appellant is
entitled to an additional two days of conduct credit. (People v. Bravo (1990) 219 Cal.App.3d 729, 731;
523, 527; Pen. Code, §§ 667.5, subd. (c)(9), 2900.5, subd. (a), 2933.1, subd. (c),
& 4019.) We will modify the judgment and direct the
trial court to amend the abstract of judgment accordingly (cf.
460, 466).
The
judgment is modified by awarding appellant a total of 540 days of precommitment
credit, consisting of 470 days of custody credit pursuant to Penal Code section
2900.5, subdivision (a), and 70 days of conduct credit pursuant to Penal Code
sections 2933.1, subdivision (c) and 4019, and, as modified, the judgment is
affirmed. The trial court is directed to
forward to the Department of Corrections an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J.
CROSKEY, J.
name="_ftn1" title="">[1] There
is no dispute appellant committed the offenses alleged in counts 1 and 2. In light of that fact and our analysis of
appellant’s contentions on appeal, there is no need to detail the
identification evidence appellant was a person who committed the crimes alleged
in counts 1 through 3.
name="_ftn2" title="">[2] Martinez
testified that in the beginning she was concerned about retaliation because
“these people had my information.†Four
days after the robbery, Azusa Police Detective Thomas Avila interviewed
Martinez and discussed a photograph she previously had selected during a
photographic lineup. During the
interview, Martinez asked if the document was a public record
and whether someone would “look up and see if, . . . I had pointed someone out
or identified someone . . . .†Martinez
denied she was afraid at time of trial.
She was not afraid at time of trial because she had not identified the
robber at the preliminary hearing.
