P. v.
Vigouroux
Filed 6/26/12 P. v. Vigouroux CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIK LOUIS VIGOUROUX,
Defendant and Appellant.
B227666
(Los Angeles County
Super. Ct. No. LA061862)
APPEAL
from a judgment of the Superior Court of
County. Joseph A. Brandolino,
Judge. Affirmed.
Kavinoky
Law Firm and Mark A. McBride 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, and Tannaz Kouhpainezhad, Deputy Attorney
General, for Plaintiff and Respondent.
_________________________________
Defendant Erik Louis Vigouroux
appeals from the judgment entered following successive jury trials in which he
was convicted of two counts of carjacking and one count of
denying his motion for a judgment of acquittal of the carjacking charges and
violated his confrontation rights by
admitting particular evidence. We
affirm.
BACKGROUND
The charges
in this case stemmed from defendant’s reaction to an attempt to repossess his
tenant’s car. In defendant’s original
trial, the jury convicted him of resisting an executive officer during
fingerprinting, acquitted him of assault with a semiautomatic firearm, and
could not reach a verdict on the remaining charges. The court declared a mistrial and defendant
was retried for two counts each of carjacking and second degree robbery. Because the issues raised on appeal pertain
only to defendant’s retrial, we set forth a summary of the evidence at the
retrial, but not the original trial.
About 3:00
a.m. on April 6, 2009, licensed car repossession agent Julio Garcia and his
cousin Kevin Flores went to defendant’s residence in Woodland Hills to attempt
to repossess a car registered to Carol Liglet.
Because of the position of the car on the lot, the presence of other
vehicles nearby, the shape and width of the driveway, and insufficient
maneuvering room, it took Garcia and Flores about 45 minutes to hook Liglet’s
car up to Garcia’s tow truck. While
Garcia worked, two women on the balcony of the house spoke to him. He told them he was a “California Recovery
Agent” and was repossessing a car registered to Carol Liglet. The women denied knowing her.
To exit,
Garcia had to back his tow truck down the steep, narrow, curved driveway with
Liglet’s car going down first. Near the
driveway’s junction with the street, he had to unhook Liglet’s car and push it
around a bend. Flores stayed with the
unhooked car as Garcia returned to his tow truck. Garcia saw defendant standing in the driveway
with one hand in his pocket and a set of keys in his other hand. Defendant walked past Garcia and the tow
truck without saying anything. Garcia
believed defendant was going to give Flores the keys to Liglet’s car. As Garcia got into his tow truck, he heard a
door close. He looked at Liglet’s car
and saw Flores open its driver’s side door.
Defendant was seated in the driver’s seat of Liglet’s car. Flores said, “What are you doing man This is a repossession. Please get out of the car.” Flores and defendant struggled over the car
door for about 90 seconds, with Flores pulling the door open and defendant
pulling it closed. Then Flores stopped
talking to defendant and backed away from Liglet’s car, holding his hands in
the air at shoulder height.
Garcia
grabbed his mace and walked up to Liglet’s car.
He told defendant they were repossessing the car and asked what
defendant was doing. Defendant had one
hand in his pocket and one hand on the steering wheel. He said nothing about getting his property
out of the car. He mumbled something,
started the car, put it in reverse and started driving. Garcia feared that defendant was either going
to run over him and Flores or drive off with the car, so he sprayed defendant
in the face with mace. It seemingly had
no effect on defendant, who continued driving Liglet’s car in reverse and
struck Garcia’s tow truck. Defendant
then drove forward and Garcia again sprayed defendant with mace. Garcia was frightened. Defendant drove away down the street in
Liglet’s car, which Garcia never recovered.
Flores
looked scared. Garcia asked him what had
happened. Flores told Garcia that he saw
that defendant had a gun. Garcia phoned
911 and told the dispatcher that as he and his partner were repossessing a
vehicle, a man “came out with a gun, threatened us with a gun.” The recording of the 911 call was played at
trial.
The police
arrested defendant on April 20, 2009, and searched his house, where they seized
two shotguns, a rifle, a 10-millimeter semiautomatic handgun and airsoft rifle,
some toy guns, and a camera. The
prosecution introduced a single photograph the police had found in the camera’s
memory and printed out. It depicted
defendant with the 10-millimeter semiautomatic handgun police had seized, a
revolver, and a black semiautomatic handgun.
The police did not find the latter two guns. On cross-examination Detective David Lange testified
that the camera’s memory indicated the photograph was taken in May of 2007.
Defendant
told Lange and another detective that after one of his housemates knocked on
his door, he got up and saw two men repossessing Liglet’s car. Defendant knew it was a repossession, but did
not like “repo guys.” He watched them
for about 45 minutes as they moved the car down to the street. When they disconnected the car from the tow
truck, defendant walked down to the street and got into it. As he tried to close the car door, one of the
“repo guys” tried to stop him, and they struggled over the door. Defendant denied that he had a gun with
him. Defendant started the car, one of
the men warned him they were going to use pepper spray on him, and the man
sprayed him. Defendant then drove off in
the car. He said he was doing Liglet a
favor. Defendant never said anything to
the detectives about retrieving his property from Liglet’s car.
Defendant
testified that he was awakened by a housemate who told him there were people
“out back” and suggested he see what was happening. Defendant looked out a window and saw a tow
truck “stuck” in the driveway. The truck
was attempting to move the car belonging to his tenant, Liglet. Defendant grabbed the keys to Liglet’s car and
went outside. Defendant denied knowing
that the men with the tow truck were repossessing Liglet’s car, but he knew
“people don’t usually steal vehicles out of backyards with tow trucks,” so he
“figured something was going on.”
Defendant did not really care about the car itself, but he had left his
backpack and wallet in it and wanted to get them out before the men took the
car away. The men unhooked the car and
left it unattended 20 or 30 feet up the street.
Defendant walked past the tow truck and men to the passenger side of
Liglet’s car. His saw his backpack
sitting on the passenger seat. He walked
around to the open driver’s door, got in, and attempted to close the door. It was caught on an embankment and would not
close. Defendant leaned over and grabbed
his property. One of the men then
yelled, “What are you doing” Defendant
turned to explain, and the man sprayed him in the face with pepper spray, which
caused him tremendous pain. As he
“balled up” over the steering wheel, he felt hands attempting to pull him out
of the car. He considered his options,
put the key in the ignition, and drove away.
He did not back up and hit the tow truck. There was no struggle over the door, and he
did not have a gun on him. He parked the
car 300 to 400 yards away from the house.
Defendant
and his business partner testified that they ran an outdoor recreation business
that taught people skills such as shooting.
Defendant’s business partner testified he had taken photographs of
defendant at firing ranges holding guns owned by other people.
In
defendant’s second trial, the jury convicted him of two counts of carjacking
and acquitted him of two counts of robbery and two counts of grand theft as a
lesser included offense. With respect to
each carjacking count, the jury found that an allegation that defendant
personally used a firearm was not true.
The trial court granted defendant probation.
DISCUSSION
of Penal Code section 1118.1 motion
At the
conclusion of the prosecution’s case-in-chief, defendant moved for a judgment
of acquittal of the robbery and carjacking counts pertaining to Flores on the
ground that Flores did not testify. The
court denied the motion. The next day,
defendant renewed his motion and sought dismissal of the firearm enhancement
allegations attached to all of the carjacking and robbery counts. The court denied the motion.
On appeal,
defendant contends the trial court erred by denying his motion for acquittal,
apparently with respect to the carjacking of both Flores and Garcia. He argues there was insufficient evidence of
force or fear. The trial court could not
possibly have made an erroneous ruling on a nonexistent motion for acquittal
with respect to the carjacking of Garcia, and a court has no sua sponte duty to
consider the sufficiency of the prosecution’s evidence. (People
v. Smith (1998) 64 Cal.App.4th 1458, 1469 (Smith).) Accordingly, we
consider only the ruling on the motion with respect to Flores.
When
reviewing a claim the trial court erred by denying a motion for acquittal under
Penal Code section 1118.1, we apply the same standard as when evaluating the
sufficiency of evidence to support a conviction, except that we consider only
the evidence in the record at the time the motion was made. (People
v. Augborne (2002) 104 Cal.App.4th 362, 371; Smith, supra, 64
Cal.App.4th at p. 1464.) We review that
evidence in the light most favorable to the judgment to decide whether
substantial evidence supports the conviction, so that a reasonable jury could
find guilt beyond a reasonable doubt. (
1134, 1138.)
Carjacking
is the felonious taking by means of force or fear of a motor vehicle in the
possession of another, from either the possessor’s or a passenger’s person or
immediate presence, against his or her will, with the intent to temporarily or
permanently deprive the possessor of the vehicle. (Pen. Code, § 215, subd. (a).)
Fear,
for purposes of robbery or carjacking, may be inferred from the surrounding
circumstances. (People v.
words, or circumstances reasonably calculated to produce fear. (People
v. Brew (1991) 2 Cal.App.4th 99, 104.)
The defendant need not assault or verbally threaten the victim or use or
display a weapon. (Ibid.) The element of force
exists “where a person
wrests away personal property from another person, who resists the effort to do
so.” (People v. Burns (2009) 172 Cal.App.4th 1251, 1257.)
Garcia’s
testimony regarding his observations and Flores’s statement provided
substantial evidence that defendant took Liglet’s car by means of force or
fear. Garcia saw Flores struggling to
prevent defendant from closing the car door, which demonstrated that Flores
resisted defendant’s taking of the car, and defendant employed force to
overcome that resistance. In addition,
Garcia’s testimony that Flores suddenly stopped talking and began to back away
from the car with his hands in the air supported a reasonable inference that
defendant somehow instilled fear in Flores, perhaps by telling Flores he had a
gun or pretending to have a gun by holding his hand in his pocket, as Garcia
described. Garcia further testified that
in the immediate wake of defendant’s departure with the car, Flores said that
defendant had a gun. Defendant attempts
to exclude from consideration Garcia’s testimony regarding this statement by
Flores by arguing that it was inadmissible.
He is wrong, as addressed in the next section.
Finally,
defendant argues that the jury’s not true finding on the firearm-use
enhancement allegation undermines the sufficiency of the evidence to support
the carjacking conviction. Of course,
the jury had not made that finding at the time the court ruled on defendant’s
motion for acquittal. In addition, our
consideration of the sufficiency of the evidence is not limited by an allegedly
“inconsistent” verdict or finding. (
Cal.App.3d 565, 571; People v. Santamaria (1994) 8 Cal.4th 903, 911; Pen. Code, § 954.) An “inconsistent” acquittal or finding
is viewed as the product of compromise, mistake, or leniency, of which a
defendant is not permitted to take further advantage. (Santamaria, at p. 911; People v. Pahl
(1991) 226 Cal.App.3d 1651, 1657.)
Here, the finding is not even inconsistent, as the jury could have
concluded defendant did not actually have a gun, but either convinced Flores he
did or used force to accomplish the carjacking.
For all of
these reasons, defendant’s contention fails.
violations
Citing Crawford v. Washington
(2004) 541 U.S. 36 [124 S.Ct. 1354], defendant contends that admission
of the 911 recording, Garcia’s testimony that Flores said defendant had a gun,
Lange’s testimony regarding the guns found at defendant’s residence, and the
photograph of defendant with guns violated his confrontation rights.
held that with respect to the
admission of testimonial hearsay evidence, such as police interrogations or
testimony from grand jury proceedings, a preliminary hearing, or a former
trial, the confrontation clause demands both unavailability of the witness and
a prior opportunity for cross-examination.
(Crawford v. Washington,
inadmissible.
The
confrontation clause does not apply to non-hearsay evidence or to hearsay
evidence that is not testimonial in nature.
Testimonial hearsay evidence
is that in which a declarant makes a “‘“solemn declaration or affirmation
. . . for the purpose of establishing or proving some fact.”’” (Davis
v. Washington (2006) 547 U.S. 813, 824 [126 S. Ct. 2266] (
government officers bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not.’” (
a. 911 recording
At the
outset of the second trial, the prosecutor informed the court and defense
counsel that he might introduce the recording of Garcia’s 911 call. Defense counsel stated, “At this point, I
have no objection to it.” The next day, before the prosecutor called Garcia as
a witness, he informed the court he would be playing the 911 recording. Defense counsel stated, “I have an objection
to two things on the transcript, first being that he put his name on the top
corner of the [transcript].” The court
noted, “It’s set up as a pleading.”
Defense counsel then objected to the following statement by Garcia to
the dispatcher: “‘Okay. I wanted to advise you the guy that’s driving
the vehicle is a methamphetamine drug addict.’”
Defense counsel later withdrew his objection to this statement. Finally, defense counsel argued there was an
error in the transcript, in that “‘doing’” in the statement “‘He knows the
person who we’re doing—repoing the vehicle from’” should have been
“‘stealing.’” Defense counsel did not
object to the portion of the 911 recording in which Garcia told the dispatcher
that defendant had a gun.
By failing
to object at trial to the reference to use of a gun in the 911 recording,
defendant forfeited all claims regarding the admission of this evidence,
including his confrontation objection. (People v. Williams (2008) 43 Cal.4th 584, 626;
198–199.)
Even if
defendant had preserved his confrontation claim, we would find it to lack merit
(Davis, supra, 547 U.S. at pp. 822, 827, 831 [statements made in 911 call
not testimonial]) and, even if its admission were error, we would necessarily
find it to have been harmless beyond a reasonable doubt, as demonstrated by the
jury’s not true finding on the firearm enhancement allegations (
v. Geier (2007) 41 Cal.4th 555,
608; Delaware v. Van Arsdall (1986)
475 U.S. 673, 684 [106 S.Ct. 1431]).
b. Garcia’s testimony
regarding Flores’s statement
The
prosecutor asked Garcia, “[W]hat did Kevin tell you” Garcia replied, without objection, “He—Kevin
told me that he had a gun and he saw the gun.”
The prosecutor clarified, “Kevin told you that the defendant had a
gun” Again without objection, Garcia
testified, “Correct.” Three questions
later the prosecutor asked, “After Kevin told you that the defendant had a gun,
what did you do” Garcia replied, “After
he said that, I said, ‘Are you sure’
[¶] And he goes, ‘Yes, I’m
sure.’” Defendant then objected on the
ground of hearsay. The court overruled
the objection.
Defendant
failed to object both times Garcia testified that Flores said he saw defendant
with a gun. When defendant finally
objected to Garcia’s testimony to a different statement by Flores, defendant
did not inform the trial court his objection was based on a purported violation
of his confrontation rights. Defendant
thus forfeited the claim he raises on appeal.
Even if
defendant had preserved his confrontation claim, and even if we were to find
Flores’s statement to be testimonial in nature, we would necessarily find any
error harmless beyond a reasonable doubt, given the jury’s not true finding on
the firearm enhancement allegations.
c. Lange’s testimony
regarding the seizure of defendant’s guns
Lange’s
testimony regarding the guns seized from defendant’s residence was, as far as
the record reveals, based upon his own observations, not any statement by other
officers. It does not fall within the
scope of the confrontation clause. In
addition, although defendant objected to the admission of Lange’s testimony
regarding the seizure of guns on the grounds it was irrelevant, was improper
propensity evidence, and should be excluded under Evidence Code section 352, he
again asserted no confrontation objection, and thus forfeited any appellate
claim on that basis. Finally, the jury’s
not true finding on the firearm
enhancement allegations reveals that Lange’s testimony regarding the guns
was harmless beyond a reasonable doubt.
d. Photograph of defendant
with guns
Defendant
apparently also contends that the admission of the photograph found on
defendant’s camera violated his confrontation rights. Defendant fails to explain how this
photograph could possibly be deemed testimonial. It was taken almost two years before the
commission of the charged offenses and could not possibly have been created for
the purpose of establishing or proving anything in this case.
Even if
defendant could somehow establish that the photograph fell within the scope of
the confrontation clause, he forfeited his confrontation claim by failing to
raise it in the trial court. He asserted
only relevance and Evidence Code section 352 objections regarding the
photograph. And even if defendant had
preserved a meritorious confrontation clause objection, the jury’s not true
finding on the firearm enhancement allegations reveals that the admission of
the photograph was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
MALLANO,
P. J.
We
concur:
ROTHSCHILD, J.
CHANEY, J.
