P. v. Melendez
Filed 4/2/13 P. v. Melendez CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JUAN FELIPE MELENDEZ,
Defendant and
Appellant.
H037581
(Santa Clara
County
Super. Ct.
No. EE907212)
Defendant
Juan Felipe Melendez appeals after conviction, by jury trial, of
212.5, subd. (c)),
title="">[1]
attempted second degree robbery (§§ 664, 211, 212.5, subd. (c)),
12520), possession of material with intent to make a destructive device (former
§ 12312), possession of metal knuckles (former § 12020, subd. (a)(1)),
dissuading a witness (§ 136.1, subd. (c)(1)), and conspiracy to commit robbery
(§ 182, subd. (a)(1)). The jury found
true allegations that he personally used a firearm in the commission of the
(§ 12022.53, subd. (b)), personally used a firearm in the commission of
the conspiracy (§ 12022.5, subd. (a)), and was armed with a firearm while
dissuading a witness (§ 12022, subd. (a)(1)). Defendant pleaded guilty to possession of a
controlled substance. (Health & Saf.
Code, § 11377, subd. (a).) He was
sentenced to a 16-year prison term and ordered to pay a number of fees and
fines.
On appeal,
defendant contends the prosecutor committed
count 5, his conviction of possession of material with intent to make a
destructive device. (Former §
12312.) We will order the judgment
modified to include applicable penalty assessments on the fees and fines, but
otherwise affirm.
Background
As
defendant’s argument only concerns his conviction of possession of material
with intent to make a destructive device (count 5; former § 12312), our review
of the evidence will focus on that count.
A. Robbery, Attempted Robbery,
Conspiracy, and Dissuading Counts
Using the
name Lucas Rossi, defendant responded to Craigslist ads placed by Lawrence
Dauch, who was selling an expensive watch, and by Pierre St. Cyr, who was
selling a video camera. Defendant
arranged to meet both men on August
18, 2006. A woman using the name Sophia helped
defendant set up the meeting with St. Cyr.
Defendant
met Dauch first, robbing him of the watch and then threatened him. A few hours later, defendant attempted to rob
St. Cyr of the video camera. In both
instances, defendant used a gun with a silencer. He also wore a fedora hat, sunglasses, and a
fake mustache in both crimes. In 2009,
defendant was identified by fingerprints found on the victims’ vehicles.
B. Possession Counts
On July 22,
2009, officers executed a search warrant
at defendant’s apartment. They located a
silencer, a .22-caliber handgun, three fedora hats, sunglasses, brass knuckles,
pills containing MDMA, and a computer.
The police also located a plastic bag containing the following
items: smokeless gun powder, a roll of
electrical tape, a package of rocket motor igniters, two nine-volt batteries,
one nine-volt battery wired to a push-button switch, an electrician’s tool, a
roll of insulated copper wire, a roll of gauged wire, a four-inch piece of PVC
pipe with end caps and a small hole drilled into one end, and a seven-inch
piece of PVC pipe with a small hole drilled into one end.
C. Prosecution’s Expert
Sergeant
Dustin Davis testified as an expert for the prosecution. He worked for the Santa Clara County
Sheriff’s Office on the bomb squad. He
had investigated explosives 95 times during the previous five years and
testified as an expert twice before.
According
to Sergeant Davis, a pipe bomb can be constructed from PVC pipe or galvanized
steel. A person would need to place caps
on both ends of the pipe. Gun powder or
other flammable material would be placed inside the pipe. The material would need to be ignited. A person could ignite the bomb with a rocket
motor hooked up to a battery, with wires running through small holes in the PVC
pipes. Thus, the plastic bag found in
defendant’s apartment contained enough materials to construct two completed
pipe bombs. Nothing else would be
necessary.
Sergeant
Davis did not believe that the materials were intended to be used for model
rocket launching. Rockets typically use
solid fuel, not powder, because the fuel needs to burn at a steady rate, so the
gun powder would need to be mixed with a solvent and then “ramm[ed]†into the
pipe. If the gun powder found in the bag
was used as fuel, the rocket would simply explode rather than launch into
flight. Also, the holes drilled into the
ends of the pipe were too small to create the necessary thrust. In order to make a rocket from the materials,
a person would need additional items, including a nose, fin, and launch
pad. A person would also need to remove
an end cap. With the materials in the
bag, the rocket would not function; it would be “a catastrophic failure.â€
Sergeant
Davis acknowledged that because the spool of wire found in the bag was only
about 20 feet long, it would be dangerous for a person to set off a pipe bomb
with the materials in the plastic bag.
However, the person could protect himself or herself by placing the bomb
on the other side of an object such as a wooden desk.
During
Sergeant Davis’s testimony, the jury viewed a video of a PVC pipe bomb
exploding. In Sergeant Davis’s opinion,
the materials found in the plastic bag were intended to “be put together and
exploded.†He did not believe there was
any other reasonable use for the items.
D. Defense Expert
Eugene
Richardson testified as an expert for the defense. He worked as a bomb disposal technician in
Florida. Much of his experience with
pipe bombs came from his time working on military bases. He had disassembled pipe bombs about eight
times. He had not previously testified
in court.
Richardson
had “a little bit†of experience with model rocketry. He had helped his children play with rocket
sets that they had purchased from a hobby store. He had friends who were “nuts about playing
with model rockets,†and he had once attended a “jamboree†where people were
setting off model rockets. He had
reviewed some YouTube videos showing the process of making model rockets.
Richardson
testified that the concepts behind pipe bombs and model rockets are similar,
although they have “[d]ifferent kinds of propulsion systems and different
fabrication techniques.†He believed it
was “kind of a crapshoot†as to what could be made from the materials in the
plastic bag. The items could be used to
make a model rocket, although a person would need to attach a wooden dowel to
the pipe. A person would also need some
clay or cement and something to “solidify†the fuel. Richardson believed that the length of wire
was consistent with an intent to use the items for model rocketry.
According
to Richardson, the items in the plastic bag could “[n]ot directly†be used to
make a pipe bomb, because there were no “fragmentation-producing devices.†A typical pipe bomb is made out of metal,
with metal end caps, not out of PVC pipe, because metal has more potential for
destruction than plastic PVC pipes.
However, he admitted that a PVC explosion would create shards of
plastic, and that a person could put nails inside the pipe to make it more
destructive. He believed a person would
need some epoxy cement in order to make a “proper†pipe bomb from the materials
in the plastic bag, although he admitted the bomb would still explode without
being sealed with epoxy.
Richardson
acknowledged he was being paid for his work on this case. He was paid $50 for his initial opinion and
would be paid $69.71 per hour, his regular working wage, for all of the other
time he had put in. He expected to bill
for about 20 hours, which would total about $1,500. He admitted that he probably would not be
testifying if he was not going to render an opinion that the materials were
likely intended for model rocketry.
E. Charges, Verdicts, and
Sentencing
Defendant
was charged, by first amended information, with second degree robbery (count 1;
§§ 211, 212.5, subd. (c)), attempted second degree robbery (count 2; §§ 664,
211, 212.5, subd. (c)), possession of a silencer (count 3; former § 12520),
possession of a controlled substance (count 4; Health & Saf. Code, § 11377,
subd. (a)), possession of material with intent to make a destructive device
(count 5; former § 12312), possession of metal knuckles (count 6; former
§ 12020, subd. (a)(1)), dissuading a witness (count 7; § 136.1,
subd. (c)(1)), and conspiracy to commit robbery (count 8; § 182, subd.
(a)(1)). The information alleged that
defendant personally used a firearm in the commission of the robbery and
attempted robbery (§ 12022.53, subd. (b)), personally used a firearm in the
commission of the conspiracy (§ 12022.5, subd. (a)), and was armed with a
firearm while dissuading a witness (§ 12022, subd. (a)(1)).
Defendant
initially pleaded not guilty, but changed his plea to not guilty by reason of
insanity prior to trial. During the
guilt phase of trial, he pleaded guilty to count 4,
(a).) After the jury found him guilty of
all remaining counts and found all enhancement allegations true, it found him
sane at the time of the offenses.
name="_ftnref2" title="">[2]
On November
3, 2011, the trial court imposed an aggregate 16-year prison term. It imposed the two-year lower term for count
1 (robbery), with a 10-year term for the firearm use enhancement. It imposed a consecutive eight-month term for
count 2 (attempted robbery), with a three-year, four-month term for the firearm
use enhancement. It imposed concurrent
terms for counts 3 through 7 (the various possession counts), and it stayed the
term for count 8 (dissuading) pursuant to section 654.
Also at the
sentencing hearing, the trial court
ordered defendant to pay restitution to Dauch.
It imposed a $2,000 restitution fine (§ 1202.4, subd. (b)) and imposed,
but suspended, a $2,000 parole revocation fine (§ 1202.45). It imposed $240 in court operations
assessments (§ 1465.8, subd. (a)(1)), $240 in criminal conviction assessments
(Gov. Code, § 70373), a $259.50 criminal justice administration fee (Gov. Code,
§ 29550), a $10 theft fine (§ 1202.5), plus $28.50 in penalty assessments
on the theft fine. The trial court
waived penalty assessments associated with the $50 criminal laboratory fee
(Health & Saf. Code, § 11372.5, subd. (a)) and the $150 drug program
fee (Health & Saf. Code, § 11372.7, subd. (a)).
Discussion
A. Prosecutorial Misconduct
Defendant
contends the prosecutor committed misconduct during closing argument. He claims the prosecutor impermissibly
vouched for the prosecution’s expert witness, while also impermissibly
denigrating the defense.
1. Proceedings Below
In
addressing count 5, the prosecutor noted that the jury had “heard evidence from
experts.†She noted that Sergeant Davis
had testified that the items found in the plastic bag were “intended for use
for a pipe bomb.â€
The
prosecutor then argued, “If you believe Sergeant Davis – which you should,
because he demonstrated to you that he had a very vast knowledge of this – but
if you choose to believe him, you believe that he described these materials,
that all you needed to do was put the powder in the pipe, screw on the end
caps, put the fuse in and light it or set off the igniter, then it’s a pipe
bomb. If you believe Sergeant Davis,
which you should, count 5 has been met.â€
Defense
counsel did not object to the above argument.
The prosecutor continued by emphasizing that defendant had “everything
you need in a pipe bomb†and noting that he had also apparently made the
silencer himself.
The
prosecutor then discussed the defense theory – that “it’s a rocket†– and noted
that the theory was based on the testimony of the defense expert. She argued the defense expert had little
knowledge about model rockets and noted that he had been “hesitant†to admit
that the items could be a pipe bomb. She
asked, “Why? Ask yourself. [¶]
You’ll get an instruction on judging witness credibility. Bias is one of the ways that you can
determine – is someone biased when they’re being paid by somebody to testify a
certain way? [¶] Remember my last question. If you come in here and you testify and you
don’t say it’s a model rocket, you don’t get paid. He’s a paid expert. You can get experts to come in here in many
courts and say whatever they want you to say[.]â€
Defense
counsel objected at that point, but the trial court overruled the
objection. The prosecutor continued her
argument by referring once again to Sergeant Davis’s testimony that the items
“were sufficient to make two pipe bombs.â€
She also reiterated, “His testimony is credible and you should believe
it.â€
During his
closing argument, defense counsel argued that Sergeant Davis was the biased
expert. He argued that “it’s not always
a result of money, necessarily.†In this
instance, he argued, Sergeant Davis’s bias resulted from his position as a public
safety officer. Defense counsel argued
that Sergeant Davis saw the world “through cop-colored lenses.â€
Defense
counsel also argued that there were two reasonable interpretations of the
evidence and that the jury had to adopt the one that pointed to innocence. He noted that if the materials were used for
a pipe bomb, they would leave only plastic shrapnel and do little damage. He noted that according to the defense
expert, defendant would only have needed a few other items to make a rocket,
and that Sergeant Davis had essentially agreed with that assessment. He reiterated that even if the rocket theory
was not “the best explanation,†the jury was required to adopt it as long as it
was “a reasonable explanation.â€
In her
rebuttal argument, the prosecutor argued that Sergeant Davis was knowledgeable
and that he had identified “many things that are wrong with this being a model
rocket.†She then argued, “The mere fact
that an expert from Florida – we’re in Silicon Valley. You mean to tell me that you couldn’t find
one person locally that could say that this is a model rocket? Not one person. Moffett Field’s right there. Not one person would come to this court
locally to say those items are a model rocket.
Think about that for a second.
Why? Why? Because it’s not reasonable.â€
Defense
counsel objected, but the trial court overruled the objection. The prosecutor continued her rebuttal and
soon returned to the subject of “the expert testimony from the defense.†She argued, “Think about his demeanor. Think about his testimony. Think about what he was saying. Why would somebody who is coming here …
testify to you that something is a model rocket? What’s his background in that? He went on the Internet? He got his expertise from YouTube? YouTube is not a source of expert
information.â€
The
prosecutor argued that ultimately, the defense expert had agreed that the
materials would make a pipe bomb. She
argued, “He reluctantly said possibly.
Reluctantly, because he knows he’s here to please the person who’s
paying him.â€
At the end
of her rebuttal, the prosecutor argued that “the defense[-]hired expert was not
reasonable. … [Defendant] happened to have a – have a bag of items that is the
worst model rocket you’ve ever seen because it won’t work. That doesn’t make sense. It’s not logical because it’s just not
supported by the evidence.â€
The
following day, defense counsel asked for a jury instruction to address the
prosecutor’s argument about the defense expert.
The proposed instruction stated:
“Yesterday, the prosecutor suggested during her closing argument that
the defense attorney could hire an expert … ‘to say whatever he wanted,’
…. This suggestion was improper. You are instructed to disregard this
remark. You shall not consider this
remark in any way during your deliberations.â€
Defense
counsel noted that he had “made a timely objection†but had not asked for an
admonition at the time. He specified
that his failure to do so was not a tactical decision.
The trial
court declined to give the instruction, but reminded the jury that the
“statements by the attorneys during the argument are not evidence.†The trial court also instructed the jury with
CALCRIM No. 222, which reiterated that the attorneys’ closing arguments “are
not evidence.†In addition, the trial
court instructed the jury with CALCRIM No. 332, which provided guidance for
“evaluating the believability of an expert witness.â€
2. Analysis
“ ‘Under California law, a
prosecutor commits reversible misconduct if he or she makes use of “deceptive
or reprehensible methods†when attempting to persuade either the trial court or
the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted. [Citation.]
Under the federal Constitution, conduct by a prosecutor that does not
result in the denial of the defendant’s specific constitutional rights … but is
otherwise worthy of condemnation, is not a constitutional violation unless the
challenged action “ ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’ †[Citation.]’
[Citation.]†(
679.)
“If a prosecutorial misconduct claim
is based on the prosecutor’s arguments to the jury, we consider how the
statement would, or could, have been understood by a reasonable juror in the
context of the entire argument.
[Citations.]†(
106, 111.) “ ‘ “A prosecutor is given
wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence,
which can include reasonable inferences, or deductions to be drawn
therefrom. [Citations.] It is also clear that counsel during
summation may state matters not in evidence, but which are common knowledge or
are illustrations drawn from common experience, history or literature.†[Citation.] . . .’ †(People
v. Ward (2005) 36 Cal.4th 186, 215 (Ward).)
“In general, ‘ “ ‘a defendant may
not complain on appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant [requested] an assignment of misconduct
and [also] requested that the jury be admonished to disregard the impropriety.’
†’ [Citation.]†(People
v. Young (2005) 34 Cal.4th 1149, 1184-1185 (Young).)
a. Vouching for the Credibility of the Prosecution Expert
Defendant first contends that the
prosecutor committed misconduct by arguing that the Sergeant Davis’s testimony
was “credible and you should believe it.†He contends this constituted improper
vouching.
We first
observe that none of defendant’s objections below concerned the prosecutor’s
remarks about Sergeant Davis’s credibility.
Therefore, this claim may be deemed waived. (See Young, supra, 34 Cal.4th at pp. 1184-1185.) However, even assuming that defendant’s other
objections encompassed these remarks, this claim of prosecutorial misconduct
lacks merit.
“ ‘[A] prosecutor is prohibited from
vouching for the credibility of witnesses
or otherwise bolstering the veracity of their testimony by referring to
evidence outside the record. . . .
However, so long as a prosecutor’s assurances regarding the apparent
honesty or reliability of prosecution witnesses are based on the “facts of
[the] record and the inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief,†[her] comments cannot be characterized
as improper vouching. [Citations.]’ [Citation.]â€
(Ward, supra, 36 Cal.4th at p.
215.)
Here, the prosecutor’s argument that
Sergeant Davis’s testimony was “credible and you should believe it†did
not amount to improper vouching. The
prosecutor did not suggest that her belief in the witness’s credibility was
based on any facts outside the record or her own personal knowledge. (Compare People
v. Turner (2004) 34 Cal.4th 406, 433 [prosecutor referred to his prior
experience with the witnesses].) In the
context of her argument, it was clear that the prosecutor was referring to
Sergeant Davis’s experience when she argued that he was credible. The challenged remark followed her argument that
the jury should believe Sergeant Davis “because he demonstrated to you that he
had a very vast knowledge of this.â€
Thus, the prosecutor “properly relied on facts of record and the
inferences reasonably drawn therefrom, rather than any purported personal
knowledge or belief. [Citations.]†(People
v. Medina (1995) 11 Cal.4th 694, 757.)
b. Impugning the Defense
Defendant
next contends that the prosecutor improperly denigrated the defense case and
trial counsel by emphasizing that the defense expert, Richardson, was paid to
give an opinion that the materials in the plastic bag were more likely to be
made into a model rocket than a pipe bomb.
“A
prosecutor commits misconduct if he or she attacks the integrity of defense
counsel, or casts aspersions on defense counsel. [Citations.]†(People v. Hill
(1998) 17 Cal.4th 800, 832.) “ ‘An
attack on the defendant’s attorney can be seriously prejudicial as an attack on
the defendant himself, and, in view of the accepted doctrines of legal ethics
and decorum [citation], it is never excusable.’
[Citation.]†(Ibid.)
It is not
misconduct for a prosecutor to “remind the jurors that a paid witness may
accordingly be biased.†(
162.) Thus, our Supreme Court found no
misconduct where a prosecutor commented that a defense expert had been paid
significant fees to “ ‘come[] up with something that excuses [the defendant’s]
responsibility.’ †(People v. Cook (2006) 39 Cal.4th 566, 613 (Cook).) The
that the prosecutor’s argument implied that the expert had given “ ‘false
testimony for a fee,’ thereby impugning defense counsel’s integrity for having,
in effect, bought the expert’s testimony.â€
(Id. at pp. 613-614; see also
1335, 1407 [no misconduct where prosecutor referred to “ ‘paid-to-say
witnesses’ â€]; People v. Monterroso
(2004) 34 Cal.4th 743, 783-784 (Monterroso)
[no misconduct where prosecutor referred to the “industry of these defense
experts that bounce around from trial to trial, state to state, collecting good
money for testimonyâ€].)
Here, too,
the prosecutor’s comments about Richardson being paid to give a favorable
opinion for the defense were “within the bounds of proper argument.†(Monterroso,
supra, 34 Cal.4th at p. 784.)
Moreover, the jury instructions made it clear that the prosecutor’s
argument was not evidence and that the jury was responsible for evaluating the
credibility of the expert witnesses.
(See CALCRIM Nos. 222 & 332.)
“Defendant offers no reason to believe the jury failed to follow [these]
instruction[s]. [Citation.]†(Monterroso,
supra, at p. 784.) In fact, the
prosecutor referred to the jury instructions regarding witness credibility when
she argued that Richardson was biased because he was a “paid expert.â€
We conclude
there was no prosecutorial misconduct.
B. Fines and Fees
Our review
of the record reveals two jurisdictional errors concerning the fees and fines
imposed at the November 3, 2011 sentencing hearing. First, the trial court imposed $240 in court
operations assessments (§ 1465.8, subd. (a)(1)) – that is, $30 for each of the
eight counts. At the time of defendant’s
convictions, the court operations assessment was $40 per count. (Stats. 2011, ch. 40, § 6, eff. June 30,
2011; see People v. Alford (2007) 42
Cal.4th 749, 759 [fee imposed pursuant to section 1465.8, subdivision (a)(1)
serves a nonpunitive purpose and thus does not violate federal or state
prohibitions against ex post facto statutes].)
We will order the judgment modified to reflect the proper amount of the
court operations assessments.
Second, the
trial court waived all penalty assessments associated with the criminal
laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)) and the drug
program fee (Health & Saf. Code, § 11372.7, subd. (a)). However, the penalty assessments are
mandatory. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157;
1353, 1374 (Voit).)
In
seven assessments, surcharges, and penalties parasitic to an underlying
fine.†(Voit, supra, 200 Cal.App.4th at p. 1374.) In this case, they are as follows: (1) a 100 percent state penalty assessment
(§ 1464, subd. (a)(1)), (2) a 20 percent state surcharge (§ 1465.7),
(3) a 35 percent state courthouse construction penalty (Gov. Code,
§ 70372), (4) a 70 percent additional penalty (Gov. Code, § 76000,
subds. (a)(1), (e)), (5) a 20 percent additional penalty for emergency medical
services (Gov. Code, § 76000.5, subd. (a)(1)), (6) a 10 percent additional
penalty “for the purpose of implementing the DNA Fingerprint, Unsolved Crime
and Innocence Protection Act†(Gov. Code, § 76104.6, subd. (a)(1)), and
(7) a 10 percent additional state-only penalty to finance Department of Justice
forensic laboratories (Gov. Code, § 76104.7[
We will
order imposition of the applicable assessments, surcharges, and penalties.
Disposition
The
judgment is modified in the following respects:
(1) To set
the amount of the court operations assessments at $320.
(2) To
include the following assessments, surcharges, and penalties on the $50
criminal laboratory fee imposed pursuant to Health and Safety Code section
11372.5, subdivision (a) and the $150 drug program fee imposed pursuant to
Health and Safety Code section 11372.7, subdivision (a): a 100 percent
state penalty assessment (§ 1464, subd. (a)(1)), a 20 percent state
surcharge (§ 1465.7), a 35 percent state courthouse construction penalty
(Gov. Code, § 70372), a 70 percent additional penalty (Gov. Code,
§ 76000, subd. (a)(1)), a 20 percent additional penalty for emergency
medical services (Gov. Code, § 76000.5, subd. (a)(1)), a 10 percent
additional penalty (Gov. Code, § 76104.6, subd. (a)(1)), and a 10 percent
additional penalty to finance Department of Justice forensic laboratories (Gov.
Code, § 76104.7).
The clerk
of the superior court is ordered to prepare an amended abstract of judgment
reflecting these modifications and to forward a copy to the
Rehabilitation. As modified, the
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
The jury was only asked to find whether defendant was sane at the time of
counts 1, 2, 7 and 8 – the robbery, attempted robbery, conspiracy, and
dissuading counts.
