P. v. Haro

Filed 6/5/06 P. v. Haro CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Alfonso Haro was convicted by a jury of one count of carjacking (Pen. Code, § 215)[1] occurring in south San Jose on the afternoon of January 23, 2005.[2] He was sentenced to a total term of five years in prison.

On appeal, defendant asserts that his trial counsel was prejudicially ineffective in that he failed to object during closing argument to improper comments by the prosecution that implicated defendant's election not to testify at trial, a violation of Griffin v. California (1965) 380 U.S. 609, 615 (Griffin). He also argues that penalty assessments imposed as part of his sentence were improperly calculated.

We conclude that there was no Griffin error and therefore find defendant's ineffective assistance claim to be without merit. We also conclude that the amount of the penalty assessments must be adjusted downward. We will therefore order that the abstract be amended and that the judgment be affirmed as modified.

FACTS

We present a summary of the evidence from the trial using the applicable standard. We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)

I. Prosecution Witnesses

A. Jose Villegas

Jose Villegas (Villegas) had borrowed a 1987 Ford Thunderbird from his brother, Luis Villegas, on January 23. At about 5:30 p.m., Villegas parked the car at an Albertson's shopping center on Tully and Capitol in San Jose. As he stopped the vehicle, he was approached by two people. He gave an in-court identification of defendant as one of the people he encountered. Villegas testified that he had no doubt about this identification. The other individual was an African-American male.

Defendant asked for a cigarette; Villegas responded that he had none. Defendant then asked if Villegas belonged to a gang; he said that he did not. The person with defendant came to the other side of the car and told Villegas to get out. Defendant and his companion opened both doors. The African-American reached into the car and pushed Villegas while defendant pulled him out of the car from the other side. Defendant then punched Villegas once in the face and kicked him several times. Villegas attempted to defend himself and then ran. The two suspects drove off in the car.

Villegas telephoned his brother. More than two hours after Villegas and his brother had arrived home, they contacted the police. Police Officer Garcia came to the home and took Villegas's statement. He told the officer that â€