P. v. Villanueva
Filed 8/22/12 P. v. Villanueva 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NOT TO BE PUBLISHED IN THE OFFICIAL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
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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opinion has not been certified for publication or ordered published for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.
FERNANDO VILLANUEVA,
Defendant
and Appellant.
B235006
(Los
Angeles County
Super. Ct.
No. BA376234)
APPEAL from a judgment of the Superior
Court of
County, Lisa B. Lench, Judge. Affirmed.
Leonard J. Klaif, 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, Blythe J. Leszkay and Tasha G. Timbadia, Deputy Attorneys
General, for Plaintiff and Respondent.
Fernando Villanueva appeals the judgment entered following
his conviction by jury of second degree
robbery in which he personally used a firearm. (Pen. Code, §§ 211, 12022.53, subd.
(b).) Villanueva contends the trial
court erred in refusing to modify CALCRIM No. 3400, the standard instruction on
the defendant’s burden of proof for an alibi defense. We reject Villanueva’s claim and affirm the
judgment.
1.
The
prosecution’s evidence.
On September 19, 2010, at approximately 10:00 a.m., Valentin Dominguez made a
delivery of frozen goods to a popsicle store on James
Wood Boulevard in Los
Angeles and received a bag containing
approximately $1,280 in cash as payment.
As Dominguez stepped outside, Villanueva pressed a small revolver into
Dominguez’s ribs and told Dominguez to give him the money or Villanueva would
kill him. Two additional individuals
approached and surrounded Dominguez.
After Dominguez surrendered the bag containing the cash, Villanueva and
his associates ran to a Chevy Tahoe parked in front of Dominguez’s truck and
fled the scene.
Dominguez memorized the license plate number of
the Tahoe and asked the store owner to call 911. When Los Angeles Police Officer DeShawn Green
arrived at the store, Dominguez gave him a piece of paper on which he had
written 4RW7407.
Officer Green ran the license plate number but
found no matches. He changed the first 7
to a Z and obtained a match to a Chevy Tahoe with a registered owner and an
address. A police helicopter flew over
the address but the vehicle was not seen.
On September 23, 2010, Los Angeles Police Officer
Jessie Swartz obtained updated information regarding the Tahoe and went to an
address on Cecelia Street in Cudahy. As Swartz and other plain clothes officers
arrived at the address, they saw a Chevy Tahoe being driven by a male Hispanic who matched the
description of the robbery suspect. The
officers followed the Tahoe in the hope it would lead them to the other
suspects. When the vehicle returned to Cecelia Street, Swartz stopped the vehicle
and detained the driver, Villanueva, for investigation. The registered owner, Erica Huezo, was in the
passenger seat. Dominguez was summoned
to the Rampart station where he identified Villanueva in a photographic lineup
as the individual who had robbed him.
Swartz testified Dominguez’s identification of Villanueva was “very
immediate.”
Dominguez testified Villanueva’s picture
“looked the most like” the robber.
Dominguez identified Villanueva at the preliminary hearing and at trial
and testified he had no doubt Villanueva was the individual who had robbed
him.
2.
Villanueva presented an alibi defense.
Gabriela Escobedo testified that on September
19, 2010, at 10:00 a.m., Villanueva arrived at her aunt’s home in Rialto, California, driving a green Lincoln in order to transport
Escobedo and her boyfriend, Anthony Comeda, to Paramount, California. Esperanza Pereyra, one of the residents of
the Rialto home, also testified Villanueva arrived at the home
at approximately 10:00 a.m.
Escobedo indicated they arrived in Paramount at approximately noon. Villanueva and Comedo left in the Lincoln and returned to Escobedo’s
home with Erica Huezo at approximately 5:00 p.m.
Erica Huezo testified she and Villanueva have known each other for
approximately eight years and have had an on and off relationship. In September of 2010, they were
separated. Villanueva was living on Cecilia Street in Cudahy and Huezo was living in Maywood. On September
19, 2010, Villanueva and Comedo arrived at Huezo’s home in Maywood in Villanueva’s Lincoln at approximately noon.
Huezo further testified she lent her Chevy Tahoe to one Eric Garcia on
the morning of September 19, 2010, and he returned the car
that evening. Huezo claimed she had dated
Garcia, unbeknownst to Villanueva.
However, Huezo does not know where Garcia lives, his phone number or
what he does for a living and is not certain his name is Eric Garcia. Huezo testified she suspected Garcia
committed a robbery in 2009 after Huezo gave him a ride to a medical shop. When Garcia came out of the shop with
property, he told Huezo not to say anything or he would kill her. Huezo lent Garcia her car on September 19, 2010, because he threatened to tell Villanueva about their
relationship if she did not.
Mitchell Eisen, Ph.D., testified stress,
trauma, weapon focus, suggestibility and numerous other factors can have a
detrimental effect on memory and can result in misidentification.
3.
Jury instruction
conference.
Villanueva asked the trial court
to modify CALCRIM 3400 to add the italicized sentence so the instruction would
read as follows:
“The defendant contends he did not commit this
crime and he was somewhere else when the crime was committed. The People must prove that the defendant was
present and committed the crime with which he is charged. The defendant does not have to prove he was
elsewhere at the time of the crime. [¶] The defendant merely needs to raise a
reasonable doubt that he was elsewhere at the time of the crime and is not
required to prove this beyond a reasonable doubt or by a preponderance of the
evidence. If you have a reasonable
doubt about whether the defendant was present when the crime was committed, you
must find him not guilty.”
The trial court agreed the proposed
modification of the instruction correctly stated the law but ruled the standard
instruction adequately addressed the issue.
4.
Defense counsel’s closing
argument.
During closing argument, defense counsel asserted, “[A]ll the defendant is required to do is raise a
reasonable doubt in your mind that he was somewhere else at the time of this
event. [¶] He’s not required to prove an alibi beyond a
reasonable doubt. He’s not required to
prove it even by what they call a preponderance of evidence, meaning a
substantial amount of evidence.”
At that juncture the prosecution objected
law. The trial court overruled the
objection and defense counsel continued as follows: “All he has to show you is that the
likelihood is in your mind that he was somewhere else. That’s all.
He has no burden of proof. And
that continues through the testimony regarding his alibi.”
DISCUSSION
Villanueva concedes CALCRIM No. 3400 is a correct statement of law but
contends the requested modification would have clarified the instruction by
framing the issue as a positive statement.
He claims the failure to modify the instruction was prejudicial, noting
Dominguez testified he selected Villanueva from the photographic lineup because
he most closely resembled the robber and Villanueva’s expert explained that
such an identification is one of the problems with photographic lineups. Also, Villanueva’s alibi witnesses
established that Villanueva was far from the scene of the robbery at the time
it occurred.
Villanueva also claims the prosecutor
exacerbated the error by objecting when defense counsel argued Villanueva was
required only to raise a reasonable doubt he was elsewhere at the time the
crime was committed. Although the trial
court overruled the objection, without the requested addition to the
instruction, the jury could not have been certain defense counsel correctly had
stated the law.
Villanueva’s claim is meritless. Indeed, where the jury is instructed to
acquit if the prosecution fails to establish guilt beyond a reasonable doubt,
the alibi instruction is redundant. (See
People
v.
Alcala
(1992) 4
Cal.4th
742,
804;
People v. Freeman (1978) 22 Cal.3d 434, 437-439.)
In any event, the instruction
as given was correct. Moreover, even
assuming error, Villanueva cannot show prejudice. Officer Swartz testified Dominguez
immediately identified Villanueva in the photographic lineup and Dominguez
testified he had no doubt Villanueva was the individual who had robbed
him. Dominguez’s identification was
corroborated by the evidence that showed Villanueva had access to and drove the
getaway car. Huezo’s claim she lent the Tahoe
to Eric Garcia on the morning of the robbery was entirely lacking in credibility. Finally, after the trial court overruled the
prosecutor’s objection, defense counsel reiterated the point counsel had been
making when the prosecutor objected.
In sum, the trial court
committed no instructional error and, even assuming error, Villanueva cannot
show prejudice under any standard of review.
DISPOSITION
The judgment is affirmed.
KLEIN,
P. J.
We concur:
KITCHING,
J.
ALDRICH,
J.
