P. v. Ardoin

Filed 1/14/10 P. v. Ardoin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed.

Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Jason L. Ardoin appeals from the judgment entered following a jury trial which resulted in his conviction of second degree robbery (Pen. Code, 211).[1] The trial court granted Ardoin probation for a period of three years. We affirm the judgment.

FACTUAL AND PROCEDIRAL BACKGROUND

1. Facts.

a. The prosecutions case.

On April 19, 2008, Domingo Hernandez worked on 23rd Street in Los Angeles. At approximately 12:40 that afternoon, Hernandez was walking down 24th Street after having just cashed his paycheck. He was approaching the gate to his place of employment when he saw an African-American man dressed in black walking quickly toward him. A second individual, a man of Hispanic origin dressed in gray, was also walking toward Hernandez. The two men then robbed [Hernandez], . . . beat [him] and . . . left [him] there.

When a video tape of the event was played for the jury, Hernandez testified that he was the victim. He stated, Thats me and thats what happened. Hernandez then pointed at Ardoin and testified that he was the person wearing black on the day of the robbery. Hernandez indicated that Ardoin came up to him and held him while the second man, who was dressed in gray, went through his pockets and took the approximately $198 that Hernandez had in his right pocket. A third man acted as a look-out. Before walking away, Ardoin punched Hernandez in the face several times, leaving him with a bleeding nose and a face so swollen he was almost unable to see. Hernandez did, however, see the three men cross the street and walk the other way.

Almost immediately after the robbery, Hernandez saw police officers. They had detained Ardoin and asked Hernandez if he could identify him as the robber.[2] Hernandez told the police that Ardoin was the man who had robbed and beaten him.

In April 2008, Los Angeles Police Officer Mario Flores was assisting in the investigation of robberies occurring in the area near 24th and Main Streets in Los Angeles. The area is largely industrial and there had been problems regarding robberies of individuals immediately after they had cashed their paychecks at one of the several check cashing businesses there.

At approximately 1:40 p.m. on April 19, 2008, Flores and his partner, Officer Bonilla, were on patrol near 24th and Main Streets. They were in a marked car and were dressed in full uniform. As Flores drove down Main Street, the officer observed Ardoin. Flores noted that Ardoin appeared to be acting nervous. He grabbed for his cell phone and started . . . acting like he was speaking to somebody on the phone. In addition, as the officers got closer to him, Ardoin put the hood of his sweatshirt over his head and face area to cover it. Flores noticed that there was an immediate change in Ardoins demeanor once he made eye contact with the officer. For example, Ardoin turned around so that he was walking away from the officers rather than toward them. Flores and his partner decided to investigate.

The officers made a U-turn, pulled up beside Ardoin and got out of their patrol car. Officer Flores asked Ardoin if he was on probation or parole. Immediately after Ardoin answered that he was not, the officers were approached by a number of people who informed Flores that Ardoin had just robbed one of their co-workers. The officers handcuffed Ardoin, then spoke with Hernandez who, while bleeding from his nose, stated that Ardoin had just robbed him. In addition to the bloody nose, Hernandez had swelling to his face and he appeared to be frightened. He was shaking a little bit, [and appeared to be] kind of nervous.

One of Hernandezs co-workers, a Ms. Villareal, gave the officers some information about a van. Flores and Bonilla drove around the area until they spotted the suspect van and ultimately arrested its two occupants. Between the two men in the van and Ardoin, the officers recovered approximately $192. Ardoin was found to be in possession of $42. All of the money was ultimately returned to Hernandez.

Shortly after the robbery, Officer Bonilla viewed a surveillance CD from a business in the area. The surveillance camera captured images of individuals on 24th and 25th Streets. This particular surveillance video had captured images of Hernandez and the robbers. Bonilla recalled that Ardoin was wearing a black, long sleeved, hooded sweatshirt, dark jeans and black tennis shoes. Bonillas recollection of what Ardoin was wearing was consistent with what showed on the surveillance CD.

b. Defense evidence.

George Moreno is an investigator for the Office of the Public Defender. At the request of Ardoins counsel, on February 19, 2009, Moreno contacted Domingo Hernandez and met with him for approximately one hour. Hernandez told Moreno that, on the day of the robbery, he had cashed a check for $200 and after fees he had $195 in his pocket. When Moreno asked Hernandez if he could see the face of the robber, Hernandez told Moreno that he was not able to. In addition, Hernandez told Moreno that two individuals were involved in the crime. With regard to how they appeared, Hernandez indicated that [d]uring the robbery he recall[ed] the black or dark sweatshirts, but he . . . recall[ed] their faces during the police lineup [or] the field show-up.

On cross-examination, Moreno testified that Hernandez told him that he was approached by two individuals, a male Black and a male Hispanic, that he approached the police officers and identified the male Black as the perpetrator, that he recognized the male Black by his black sweatshirt and his black pants, that the male Black was 510, heavy set, bald and between 25 [and] 30 years old, that he didnt recall any facial hair, and that from the time of the robbery to the time the police detained the male Black suspect, . . . was approximately less than one minute.

2. Procedural history.

At pretrial proceedings held on August 27, 2008, Ardoin indicated that he wished to have another lawyer represent him. After the prosecutor left the courtroom, Ardoin indicated his counsel had failed to communicate with him. He had not come to see him in the lock-up. When Ardoin was then taken to the courtroom, his counsel failed to tell him what was going on. Ardoin believed his counsel did not have time for him and, accordingly, he wished to have another attorney appointed to represent him.

Counsel responded by indicating that he had interviewed Ardoin before the preliminary hearing. Counsel continued: I conducted the preliminary hearing. Ive since video conferenced with Mr. Ardoin in June. Ive kept him up-to-date on this case, what is going on. It was my understanding that he wanted to enter into a disposition. I was able to get him a probationary offer even though the facts are allegedlyMr. Ardoin was not only involved in this robbery, but beat up the victim and assaulted the victim as well. [] So I think an offer of probation on this case is actually a pretty good one. I am actually sort of surprised its for probation. I am surprised I was able to work out that offer for him based on the facts alleged against him. [] Mr. Ardoin asked for a copy of the preliminary hearing transcripts and the arrest report. I went back this morning before we came into court to hand him copies of all the materials. I think Ive done everything on this case I needed to do, and I am sort of surprised hes making this motion. After Ardoin then stated that he wished to file a section 995 motion, the trial court indicated that that was an interesting thought, but denied the Marsden[3] motion.

Jury trial began on March 4, 2009. During her opening statement, the prosecutor indicated that she intended to use a video tape of the crime. Ardoins counsel objected, indicating the video needed to be, among other things, authenticated. The trial court indicated she would, outside the presence of the jurors, have the police officer involved testify with regard to the authenticity of the video. The court stated: If he lays the proper foundation you can mark it and show it in opening.

After viewing the video, the trial court commented: All right. Ive watched the video. It appears to bethere is a fence, a street and some parked vehicles. [] There was a man walking and then two other men approached him and then there was some interaction on the other side of the fence and then the two suspects, well call them, ran away. [] So I guess youre going to call a witness to authenticate the videotape? The People then called to the witness stand Officer Jose Bonilla.

Officer Bonilla testified that he had seen the video before and, as a result of having seen it, arrested Ardoin. The officer was familiar with the area depicted in the video as it was the area of the Newton Division that he patrolled. The video, or CD, had been made by a shopkeeper in the area who witnessed the robbery.

When the People moved to have the video admitted during their opening statement, defense counsel objected on chain of custody grounds. After the parties argued the question, the trial court overruled defense counsels objection.

Before instructing the jurors, the trial court informed them that, after reviewing Ardoins file, it was taking judicial notice of the fact that there [was] no motion by defense counsel to compel a lineup or to require a lineup.

On March 9, 2009, after deliberating for approximately 90 minutes, the jury sent a note to the trial court which read: We request the following: instruction on how to proceed once we reach an impasse in our deliberations. In discussing the matter with counsel, the trial court indicated it was inclined to give the jury further instruction, which was approved in People [v.]Moore[(2002)] 96 Cal.App.4th, 1105 at 1118 to 1120. [The instruction] emphasizes that they might try some different way of deliberating.

After the jurors entered the courtroom, the following occurred: The Court: Okay. Our jurors are here. . . . [] Who is the foreperson? [] Number 10. [] I got your note. [] I appreciate how hard all of you are working. We got the case to you at about 2:00 and I got the note at about 3:35. Thats about 90 minutes. [] I have to say, having tried a lot of cases, I dont think Ive ever had a jury tell me they were at an impasse after 90 minutes. Im really not permitted to inquire into what the concerns are or what the issues are. Thats sacrosanct and that is for the jurors only. But it is my job, together with the lawyers, to make sure you have everything you need and to see if theres anything further we can do to help you. [] So I guess my first question for Juror Number 10 is do you think that any read back, further instructions or further argument could be of assistance? [] . . . Juror No 10: Weve considered those questions and it doesnt seem like thats the case, but we could certainly ask that again. [] The Court: Well, Im going to give you a few further thoughts here, sort of a further instruction that elaborates on the ones I already gave you. It has been my experience that a jury that initially reported it was unable to reach a verdict ultimately was able to arrive at a verdict, and so Im going to further instruct you as follows to assist you in your further deliberations: [] Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so, based solely on the evidence presented and without regard for the consequences of your verdict, regardless of how long it takes to do so. [] It is your duty as jurors carefully to consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views about the evidence and to listen to and consider the views of your fellow jurors. [] In the course of your further deliberations, you should not hesitate to reexamine your own views or to request that your fellow jurors reexamine theirs. [] You should not hesitate to change a view that you once held if you are convinced it is wrong, or to suggest that other jurors change their views if you are convinced that they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views. [] As I previously said, and this is in one of the earlier instructions, each of you must decide the case for yourself and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. [] It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment. Both the People and the defendant are entitled to the individual judgment of each juror. [] As I previously said, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. [] I might suggest that since you have not been able [to] arrive at a verdict so far, using the methods that you have chosen, that you consider possibly changing the method you have been following, at least temporarily, and maybe try new methods. After further instructions, the trial court asked the jurors to go back and try more and to give it a little bit more time.

The following day the jury found Ardoin guilty of the crime of second degree robbery of Domingo Hernandez in violation of section 211.

After the jurors left the courtroom, the People made a motion to remand Ardoin pursuant to section 1166. Defense counsel argued that Ardoin ha[d] absolutely no criminal record other than this conviction. He had already spent a significant amount of time in jail; he had served 252 days before being released on bail in December. He is a student who is currently attending classes and he has not missed a day in court; he has shown up on time for every scheduled proceeding. Defense counsel asserted that, under these circumstances, Ardoin should be allowed to remain out of custody on bond until sentencing.

The trial court agreed that Ardoin should remain out of jail on bond. The court noted that, although the offense was a serious one, Ardoin had no prior criminal record and had made every court appearance. In addition, the recommendation from the Probation Department was to place Ardoin on probation. It was emphasized that he has local ties. In addition, the trial court presumed that Ardoin recognized that, should he fail to appear or be picked up on a warrant, he could be sentenced to state prison. Based on the above factors, the trial court allowed Ardoin to remain on bond and denied the Peoples motion for remand.

Ardoin was sentenced on March 24, 2009. Following argument by the parties, during which the People argued for the low term in state prison and Ardoins counsel asserted that the 252 days already served and probation would be the appropriate sentence, the trial court indicated: I understand the seriousness of the crime, but I do not think Ive seen a defendant in a case like this who has no history, no juvenile history, no adult history, no history whatsoever. So I think he deserves a chance at probation. Thats what the Probation Department thinks, thats what the O.R. people think. Accordingly, the trial court placed Ardoin on formal felony probation for a period of three years under certain terms and conditions. He was awarded presentence custody credit for 252 days actually served and 126 days of good time/work time, for a total of 378 days. Ardoin was ordered to pay a $200 restitution fine ( 1202.4, subd. (b)), a $20 court security fee ( 1465.8, subd. (a)(1)), a $10 crime prevention fine ( 1202.5), a stayed $200 parole revocation restitution fine ( 1202.44) and the cost of probation services.

Ardoin filed a timely notice of appeal on May 15, 2009.

This court appointed counsel to represent Ardoin on appeal on July 27, 2009.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated October 8, 2009, the clerk of this court advised Ardoin to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The other two men drove off in a van, which was later stopped by police officers.

[3]People v. Marsden (1970) 2 Cal.3d 118.