P. v. Valencia

Filed 6/1/07 P. v. Valencia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Christopher Gabriel Valencia was convicted after a jury trial of having engaged in a crime spree consisting of robbing seven women of their purses at three different business locations. As a result, he was found to be guilty of five counts of robbery and one count of attempted robbery.

His appeal raises two issues: the denial of a live lineup and the imposition of consecutive sentences in the absence of a statement of reasons by the trial court. We hold that the trial court did not abuse its discretion in denying defendants motion for a lineup. Defendant also waived his right for a statement of reasons by failing to object in the trial court and that the record fails to support a contention that defendants failure to object constituted ineffective assistance of counsel.

FACTS

Late in the evening, while Natalie Eckstrom and Rachel York were in a restaurant parking lot, defendant approached on a bicycle, put his hand under this waistband, and said, Give me your fucking purses or Im going to blow your heads off. The women complied. Shortly thereafter, the women were shown photographic lineups and York identified defendant as the robber; Eckstrom could not identify him.

Three days later, again late in the evening, as Maria Rivera and her daughter Viveka Brenes were in a vehicle parked near a medical building, defendant approached, pointed a gun at Rivera and ordered her to open her door. The two women jumped out of the vehicle and ran into a nearby building. When they returned to the vehicle, Riveras purse and a bag were gone. Both women subsequently identified defendant from a photographic lineup.

A few days after this incident, again in the evening, while Johanna McCollun was shopping at a bridal store, defendant put a gun to her head and demanded her purse. Johanna did not have a purse but her mother Cecilia McCollum handed defendant her purse. Defendant then did the same to another customer, Debbie Tran, and obtained her purse under threat of having a gun placed at her back. None of these three women were able to identify defendant from a photographic lineup. A cell phone, pictures, and a credit card belonging to Tran, as well as a toy gun, were recovered from defendants occasional residence.

DISCUSSION

1. No Error in Denying Request for Lineup

Before the preliminary hearing, defendant moved for a corporal lineup, arguing a likelihood of mistaken identity. The motion was based on the contention that three of the victims, the McColluns and Tran, had been unable to identify defendant from a photographic lineup. The court denied the motion.

As noted by defendant, Evans v. Superior Court (1974) 11 Cal.3d 617 held that due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. (Id. at p. 625.) But that court limited the rule to appropriate cases. A defendant is not automatically entitled to such a lineup; the issue rests within the sound discretion of the trial court. (See People v. Williams (1997) 16 Cal.4th 153, 235.) And here there was no such abuse of discretion.

Victims in two of the robberies identified defendant from a photographic lineup. And property belonging to a victim in the third robbery was found in defendants possession. Under these circumstances, the trial court properly concluded that there was no adequate showing of a likelihood of misidentification. Further supporting the trial courts decision was the fact that a lineup at that time, more than two years after the commission of the crimes, was as likely to confuse the victims memory as to aid it.

The Attorney General asserts as a further argument that defendant admitted to the charged robberies and other similar ones. The only record reference provided led us to an unsworn statement by the prosecutor in her memorandum of points and authorities; this is not a sufficient record. A statement made by counsel at the time of sentencing suggests that any such statements may have been excluded after a hearing under Penal Code section 401.

2. Objections to Sentence Waived

At the time of sentencing, defendant submitted on the record. No further argument or evidence, other than the probation report and an addendum thereto, were presented to the court. It thereupon sentenced defendant, including a consecutive sentence on one of the counts. The court failed to state its reasons for this sentencing choice as required by Penal Code section 1170, subdivision (c). Defendant did not object and appellant acknowledges that this failure to object waives the issue. (People v. Scott (1994) 9 Cal.4th 331, 353, 356-358.)

Defendant suggests we should nevertheless reach the merits of the claim because counsels failure to request the court state its reasons for the sentence choice constitutes ineffective assistance of counsel. But under Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674], defendant must show a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Id. at p. 694.) On the record provided to us, we are unable to make such a finding.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

OLEARY, J.

MOORE, J.

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