P. v. Vasquez
Filed 6/25/13 P. v. Vasquez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CRUZ RODRIGUEZ VASQUEZ et al.,
Defendants
and Appellants.
E053755
(Super.Ct.No.
FWV902589)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Shahla Sabet, Judge. Affirmed as
modified.
Nancy
L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant Cruz Rodriguez Vasquez.
Stephen
M. Lathrop, under appointment by the Court of Appeal, for Defendant and
Appellant Jose Antonio Rivera.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant and appellant Jose Antonio Rivera of 27 counts of
second degree robbery (counts 1-8, 10, 15, 17-26, 28, 29, 33, 37-40—Pen. Code §
211),
27, 32, 34-36—§§ 664, 211), and found true 31 allegations that he
personally used a handgun in the attached counts (§ 12022.5, subd. (a)).
appellant Cruz Rodriguez Vasquez of 22 counts of second degree robbery (counts
3-6, 8, 10, 15, 18-24, 26, 28, 29, 33, 37-40—§ 211), six counts of attempted
second degree robbery (counts 9, 11, 27, 34-36), and found true 25 allegations
a principal was armed with a handgun in the attached counts (§ 12022, subd.
(a)(1)).
The
court sentenced Rivera to an aggregate term of 86 years, 8 months’
incarceration. It sentenced Vasquez to a
total term of 39 years’ imprisonment.
On
appeal Rivera challenges the sufficiency of the evidence on the true finding
that he personally used a handgun with respect to count 38, the lawfulness of
the term imposed on count 34, and maintains the abstract of judgment does not
accurately reflect the custody credits awarded on the date of his conviction. Vasquez contends insufficient evidence
supports his conviction of attempted robbery on count 36 because one of the
complaining witnesses was not administered the oath before testifying, the
court erroneously failed to instruct on the lesser included offense of attempted
grand theft on count 9, and the People’s failure to disclose a pending felony
charge against one of its witnesses violated Brady
title="">[4] and deprived him of his constitutional right
to confrontation. Defendants join in
each others’ arguments. We shall direct
the superior court to modify and correct the sentencing minute order and
abstract of judgment with respect to Rivera.
In all other respects, we affirm the judgment.
On
June 8, 2009, at 9:30, Guadalupe Bracamontes was working at
Taqueria Tamazulena, when defendants came in.
Vasquez stayed by the door on his cell phone while Rivera ordered tacos.
When Bracamontes told Rivera the total, Rivera handed her a paper reading that
“it was a robbery and that it was best that [she] cooperated with them and to
put all the money in the bag that they hadâ€; Rivera lifted up his shirt to show
her his gun, said he had a gun, gave her a black plastic bag, and told her to
give him all the money; she did so.
On
June 12, 2009, at 7:20 p.m., Norma Garcia was working at Mundo
Musical Metro PCS in Ontario with
her supervisor Oralia Marquez.
Defendants walked in together.
Rivera walked up and asked Marquez “to put the money in the bag that he
had with him.†Marquez put the money in
the bag and handed it to him. Rivera
then pulled up his shirt, showed his gun to her, and told her they should not
call the police because “they knew who we were and they knew where we
lived.†The People played a video of the
robbery during trial.
On
June 14, 2009, at 5:30 p.m., Azucena Sanchez was working at
Tropical Island Fruit in Ontario
with her coworker, Viky Laura Dorado.
Vasquez came in, purchased a drink from Dorado, and walked out. Rivera entered the store as Vasquez
left. Rivera lifted up his shirt to show
a gun at his waist and asked Sanchez for the money in the register; Vasquez
reentered the store. Dorado gave Rivera
the money from one cash register and Sanchez gave Vasquez the money from a
second cash register. The People played
a video of the robbery during trial.
On
June 23, 2009, at 4:30 p.m., Obdulia Hernandez was working at an
ARCO gas station in Ontario. Rivera walked up to her cash register, lifted
up his shirt to reveal a gun, told her to open the cash register, and told
Vasquez to get all the money; Vasquez came to her cash register and took the
money. Rivera told her not to call the
police because he knew where she lived and he could go look for her. The People played a video of the robbery
during trial.
On
July 17, 2009, at 5:00 p.m., Carmen Valadez was working at Aloha
Barbeque Grill. Defendants walked up to
her at the cash register. Vasquez asked
her to give him change for a dollar. She
turned around to open the register and both Vasquez and Rivera came around the
counter beside her. Vasquez asked for
the money in the drawer; Rivera lifted his shirt and showed her a gun. Vasquez took the money from the drawer and
placed it in a black plastic bag. Rivera
told her not to call anyone as they left.
On
July 17, 2009, at 3:30 p.m. Jemima Corona, Guadalupe Rivas, and Blanca Lucero
were working at Lucy’s Salon, a beauty shop.
Martin Gomez was waiting to get his hair cut. Refugio Calderon had already received a
haircut and was waiting for his friend.
Juan Carlos Gonzalez Martinez was there with his two children. Defendants walked in. Vasquez told the cashier to give him all the
money in the register. Rivera pulled a
gun from his waistband.
Rivera
told Gomez to empty all the money he had in his pockets. Gomez told him he didn’t have any money;
Gomez pulled out his wallet to show him; nothing was taken from him. Rivera told Calderon to give his money to
Vasquez; Rivera gave Vasquez $20.
Vasquez told Martinez to give him his money; he did so. Vasquez asked Rivas for her money; she did
not have any to give him. Rivera
collected money from Rivas’s client.
Vasquez asked Lucero for her money, but she told him she did not have
any. Vasquez put all the money he
collected in a small plastic bag.
Vasquez said that no one should call the police because they knew where
everyone lived and if they called, defendants would go to their homes.
On
July 20, 2009, at 4:30 p.m., Monirul Haque was working at Red Hill Gas Station
in Rancho Cucamonga. Defendants came
into the store. Rivera came behind the
register, removed a gun from his waist, and pointed it at Haque’s neck. Rivera told him to give him the money in the
register. Vasquez told him to put the
money in their bag. He took the money
out of the cash register and put it in the bag.
Vasquez told him not to call the police because he knew where Haque
lived. The People played a video of the
robbery during trial.
On
July 27, 2009, Alejandra Gomez was working at a Chevron Gas Station in
Claremont at 2:30 p.m. Vasquez walked up
to her and told her to put all the money in the cash register into a bag he was
carrying. After Vasquez asked for the
cash, Gomez looked over and saw Rivera was standing next to her brother, Juan
Carlos Gomez, who also worked at the gas station; Rivera pointed a gun at the
ground. Alejandra opened the cash
register and gave Vasquez all the money inside.
cigarettes. After she handed them over,
Rivera told her to put up her arms and stand with her brother. Rivera told them not to call the police
because they knew where they lived. The
People played a video of the robbery during trial.
On
August 4, 2009, Yessica Contreras was working at Zapp Wireless in Upland. Defendants entered the store together. Rivera lifted up his shirt and showed her a
gun at his belt. They told her to open
the register. Vasquez removed the money
from the register and placed it in a bag he had. Contreras was told to go into the restroom
and not come out.
On
August 9, 2009, at 2:20 p.m., Francisco Abril was working at a Metro PCS store
on West Philadelphia Street in Ontario with Genesis Mireles. Defendants walked into the store. Rivera pulled out a gun from his waist. He pointed it directly at Abril. Rivera told him to give Rivera the money from
the register. Vasquez pulled out a
bag. Vasquez started grabbing the cash
out of the register after Abril opened it.
Vasquez told them to lock themselves in the restroom and not to call the
police or they would go to their homes and kill them.
On
August 16, 2009, at 2:45 p.m., Karina Jara was working at a Metro PCS store on
Central Avenue in Montclair with Arturo Gonzalez. Defendants walked into the store. Rivera came behind the counter and told Jara
to open the register and give him the money.
Vasquez acted as a lookout.
Rivera had his hand by his waist.
She told him she didn’t have the key; the manager had it. Rivera told her to get the manager. As she opened the back door, Rivera pulled
out a gun from his waist and placed it on her waist. She asked Gonzalez to open the resister. Rivera cursed, pointed the gun directly at
Gonzalez, and told him to open the register.
Gonzalez came out and opened the register. Vasquez came around the counter, retrieved
the cash, and put it in a bag. Rivera
told them to go into the restroom, walked them back with the gun in his hand,
and told them to stay inside. The People
played a video of the robbery during trial.
On
August 16, 2009, Ivette Siqueiros was working at a Metro PCS store on Valley
Boulevard in Fontana with her supervisor Jose Sanchez. Defendants walked in. Rivera walked behind the counter, told
Siqueiros to move away, told Sanchez not to move; Rivera had a gun in his
belt. Vasquez came up with a black bag
and told Sanchez to empty the money from the register into it. Sanchez did so. Rivera told them to go in the back for five
minutes and not call the police because they knew where they lived and would do
something to them. The People played a
video of the robbery during trial.
On
August 21, 2009, at 5:00 p.m., Hector Funes was working at a Metro PCS store on
Holt Boulevard in Montclair with Adan Pereschica. Defendants walked in together. Vasquez pulled out a black bag and demanded
the money from the register. Rivera
pulled up his shirt, pulled out a gun, and pointed it at them. Funes opened the cash register and let
Vasquez take the money. Vasquez asked
each of them for their wallets; they showed them to him; neither of them had
any money. Vasquez told them not to call
the police because they would be watching them.
Rivera took them to the back where he closed the door on them. The People played a video of the robbery
during trial.
On
August 30, 2009, Juan Devis was working at a Metro PCS store located at 931
West Holt Boulevard in Ontario at 2:00 p.m. with two female employees. The women came into the back room and told
him someone was looking for him. He went
out onto the sales floor where he saw defendants. Vasquez pulled out a bag and said to put the
money from the register in the bag.
Rivera lifted up his shirt to show him a gun. Devis put the money in the bag. Rivera told
them to go into the back room; they did so.
The People played a video of robbery during trial.
On
September 18, 2009, at 2:00 p.m., Juan Devis was working at a different Metro
PCS store located at 326 East Holt Boulevard in Ontario. Defendants walked in. Devis immediately recognized them. Devis took a customer outside with him. Vasquez signaled him to come back into the
store. Devis called 911. Rivera was trying to fix what looked like a
gun under his shirt. Defendants then
left together. The People played a video
of the attempted robbery during trial.
On
September 18, 2009, at 2:30 p.m., Isabel Gonzalez was working at the Metro PCS
store on Sierra Avenue in Fontana with her district managers Hector Ortiz and
Juan Caratachea. She was already aware
that other Metro PCS stores had been robbed; she had watched videos of the
robberies. She saw defendants enter the
store. Gonzalez immediately recognized
them from the videos and walked to the back room where her managers were. Gonzalez told Ortiz and Caratachea that
suspicious persons were on the sales floor.
She and her managers walked back out onto the sales floor. Rivera came around the counter; he lifted his
shirt to show a gun tucked into his waistband.
Vasquez told Gonzalez to put the cash from the register in a bag he gave
her; she did so. Rivera asked Caratachea
and Ortiz for their money; Ortiz pulled out his wallet to show Rivera he did
not have any money. Rivera escorted them
to the back, told them not to come out, and not call the police for five
minutes or he would shoot them. The
People played a video of the robbery during trial.
On
September 18, 2009, Miguel Garcia was shopping at the Metro PCS on Sierra
Avenue in Fontana. Defendants walked
in. The employee at the counter walked
to the back of the store; defendants followed her. Rivera lifted his shirt to reveal a firearm
in his waistband. Vasquez asked the
employee for the money in the register; she opened the drawer. He pulled out a black bag and she gave him
the money. Vasquez told Garcia and the
other customers to stay in the corner; then he asked them for their money. Garcia did not give them any; he told them
all he had was his debit card. Vasquez
then escorted everyone into the restroom in the back.
On
September 30, 2009, at 1:45 p.m. Carmen Devey was at her A&A Cellular and
Accessories Store in Ontario with a customer named Cesar Gertrudis. Defendants walked into the store. Devey immediately recognized defendants from
a flyer a police detective had shown her as individuals who had robbed a number
of stores. Vasquez pulled out a bag and
told her to put all the money in it.
Rivera lifted his shirt to show her a gun at his waist. She handed over the money. Rivera told Gertrudis to get on his
knees. Rivera then took Gertrudis’s
money. Rivera told Devey to go in the
back room; she did so. The People played
a video of the robbery during trial.
On
September 30, 2009, at 2:00 p.m., Edith Rebollar was working at Discoteca Mama
Rumba which sells phones, music, and rents movies. Defendants walked in together. Vasquez asked Rebollar for the money in the
register. Rivera lifted his shirt and
showed her a gun. Rebollar gave Vasquez
the money from the register. Vasquez
then told her to go the bathroom and wait five minutes; he said if she left
they would shoot her. The People played
a video of robbery during trial.
Ali
Ferdaous, the owner of a Metro PCS store named Zapp Wireless in Upland
testified that when the store was initially robbed on August 4, 2009, there
were no video cameras. He added them
thereafter. On October 8, 2009, at 5:00
p.m., he was working at the store when Rivera walked in. Rivera told him it was a holdup and showed
him a gun at his belt. Rivera then
pulled the gun out and pointed it at him and a customer. Vasquez then walked in. Ferdaous was told to open the cash register;
he did so. He was then told to move away
from the register; Vasquez took the money from the register and put it in a
black bag. Defendants left. Ferdaous hit a panic button, which called the
police. Within 40 minutes of the
robbery, he was taken by the police to a location within two miles of the store
where he identified defendants. The
People played a video of the robbery during trial.
Upland
Police Officer Maurice Duran was out on patrol on October 8, 2009, at 5:14 p.m.
when he heard a dispatch that a robbery had just occurred. He knew the type of vehicle the robbers had
been using from previous reports; he saw a vehicle matching its description and
the driver, Vasquez, matching the description of one of the suspects. Officer Duran let dispatch know he had found
a possible match of the vehicle and suspects.
He maneuvered his vehicle behind Vasquez’s and initiated a traffic
stop. The car immediately pulled
over. Officer Duran pulled out his
weapon, told the occupants to put their hands on their heads, and waited for
more officers to arrive. After several
more officers arrived, they ordered the occupants out one by one. Vasquez told one of the officers a gun was
under the front passenger seat of the vehicle.
Under the front passenger seat, Ontario Police Detective Jason Langford
found a black plastic bag containing $225, and an operable, black .45-caliber
semiautomatic Colt handgun with two rounds in the magazine.
Ontario
Police Detective Roger Planas testified before Vasquez’s jury that during a
video-recorded interview, Vasquez admitted robbing the following locations with
Rivera, while the latter was armed: Zapp
Wireless (count 40); two Metro PCS stores in Fontana (counts 23-24, 33-36); two
Metro PCS stores in Montclair (counts 25-26, 27-28); a Chevron Gas Station in
Claremont (counts 18-19); Discoteca Mama Rumba in Pomona (count 39); three
Metro PCS stores in Ontario (counts 21-22, 29, 32); A&A Cellular in Ontario
(counts 37-38); and the Red Hill Gas Station in Rancho Cucamonga (count
17). Vasquez admitted driving the
getaway car in most of the robberies. He
said the gun was a .45-caliber, which belonged to Rivera and was used by Rivera
during the robberies; Vasquez denied ever being armed. Vasquez wrote an apology letter to the
victims.
Detective
Planas also testified before Rivera’s jury that during his interview with
Rivera, Rivera admitted being armed with the .45-caliber handgun during the
robberies of Zapp Wireless (counts 20, 40), Aloha Grill (count 7), Lucy’s
Beauty Salon (counts 8-11, 14-15), Red Hill Gas Station (count 17), Taqueria Tamazulena
(count 1), Mundo Musical (counts 2-3), Islas Tropical Fruit (counts 4-5), and
Arco (count 6). Rivera said his role in
the robberies was to be armed while Vasquez’s was to obtain the money. Rivera then informed Detective Planas he no
longer wished to answer further questions.
A. RIVERA: SUFFICIENCY OF THE EVIDENCE TO SUPPORT
PERSONAL USE OF A FIREARM ENHANCEMENT ON COUNT 38
Rivera
contends the evidence is insufficient to support the true finding on the
personal use enhancement with respect to his robbery of A&A Cellular. We disagree.
“‘In
reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—
that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.†[Citations.]
We presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]
[¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial
to special circumstance allegations.
[Citation.] “[I]f the
circumstances reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled
finding.†[Citation.] We do not reweigh evidence or reevaluate a witness’s
credibility.’ [Citation.]†(People
v. Houston (2012) 54 Cal.4th 1186, 1215.)
“Proof
of firearm use during a felony does not require a showing the defendant
something more than a bare potential for use, there need not be conduct which
actually produces harm but only conduct which produces a fear of harm or
force by means or display of a firearm in aiding the commission of one of the
specified felonies. “Use†means,
among other things, “to carry out a purpose or action by means of,†to “make
instrumental to an end or process,†and to “apply to advantage.†(Webster’s New
Internat. Dict. (3d ed.1961).) The
obvious legislative intent to deter the use of firearms in the commission of
the specified felonies requires that ‘uses’ be broadly construed.†[Citation.]
‘Thus when a defendant deliberately shows a gun, or otherwise makes its
presence known, and there is no evidence to suggest any purpose other than
intimidating the victim (or others) so as to successfully complete the
underlying offense, the jury is entitled to find a facilitative use rather than
an incidental or inadvertent exposure.
The defense may freely urge the jury not to draw such an inference, but
a failure to actually point the gun, or to issue explicit threats of harm, does
not entitle the defendant to a judicial exemption from section 12022.5[,
subdivision] (a).’ [Citations.]†(People
v. Wilson (2008) 44 Cal.4th 758, 806-807.)
“Indeed
we believe a gun use enhancement would be wholly warranted if the defendant
deployed a gun to further the holdup of a blind person—even if the victim never
learned of the gun’s presence. As
another court said with respect to the offense of publicly exhibiting a firearm
in a rude or offensive manner, ‘The thrust of the offense is to deter the
public exhibition of weapons in a context of potentially volatile
confrontations. The victim’s unawareness
of the weapon does little to mitigate the danger inherent in such
situations.’ [Citation.]†(People
v. Granado (1996) 49 Cal.App.4th 317, 329, fn. 10.)
Here,
at a minimum, circumstantial evidence supports the true finding on the gun use
enhancement. Devey testified Rivera
lifted his shirt to show her a gun at his waist while she was with her customer,
Gertrudis. She then complied with
Vasquez’s demand that she put all the money in the register into his black
bag. Rivera told Gertrudis to get on his
knees and then took Gertrudis’s wallet with all his money. Gertrudis testified he was “a littleâ€
afraid. It is reasonable to infer from
the circumstances that Gertrudis saw the gun simply due to his proximity to
Devey when she saw the gun. Moreover, it
is likewise reasonable to infer Gertrudis saw the gun due to his compliance
with Rivera’s requests that he get on his knees and surrender his wallet. Furthermore, that fact that Gertrudis was
afraid also lends credence to the inference he saw the gun. Finally, it appears from the video
surveillance of the robbery that Gertrudis was looking directly at Rivera when
he lifted his shirt to expose the gun.
From the video one can see that Gertrudis was in close proximity to
Rivera both while Gertrudis was on the sales floor and when he was later moved
behind the counter. Thus, substantial
evidence supported the true finding on the gun use enhancement with respect to
the robbery of Gertrudis.
B. VASQUEZ: SUFFICIENCY OF THE EVIDENCE TO SUPPORT
CONVICTION FOR ATTEMPTED ROBBERY ON COUNT 36
Vasquez
essentially argues Ortiz’s testimony must be disregarded because the Court
failed to administer the oath before he testified. As such, Vasquez maintains the evidence that
remains is insufficient to support his conviction for the attempted robbery of
Ortiz. We disagree. We hold Vasquez forfeited the issue by failing
to object. Moreover, we hold any error
was harmless because sufficient evidence supported the conviction.
Evidence
Code section 710 requires that “Every witness before testifying shall take an
oath or make an affirmation or declaration in the form provided by law . . .
.†“‘[U]nsworn testimony does not
constitute “evidence†within the meaning of the Evidence Code.’ [Citations.]â€
(People v. White (2011) 191
Cal.App.4th 1333, 1340.)
Nevertheless,
Vasquez did not object to the court’s failure to administer the oath to Ortiz
prior to his testimony. “[W]e find that
if a witness is permitted to testify without having taken the appropriate oath,
the defect must be timely noted and failure to do so constitutes a
[forfeiture]. [Citations.]†(People
v. Carreon (1984) 151 Cal.App.3d 559, 579-580; People v. Haberlin (1969) 272 Cal.App.2d 711, 716;
re Da Roza’s Estate (1947) 82 Cal.App.2d 550, 555-556.) Thus, Vasquez forfeited the issue by failing
to object below.
Vasquez
maintains that even if he forfeited the claim, his counsel below was
constitutionally ineffective for failing to object. “‘The law governing defendant’s claim is
settled. “A criminal defendant is guaranteed
the right to the assistance
of counsel
by both the state and federal Constitutions.
[Citations.] ‘Construed in light
of its purpose, the right entitles the defendant not to some bare
but rather to effective assistance.’†[Citation.]
It is defendant’s burden to demonstrate the inadequacy of trial
[The court has] summarized defendant’s burden as follows: “‘In order to demonstrate ineffective assistance of counsel, a defendant must first show
performance was “deficient†because his “representation fell below an objective
. . . under prevailing professional norms.â€
[Citations.] Second, he must also
show prejudice flowing from counsel’s performance or lack
[Citation.] Prejudice is shown
when there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.â€â€™â€ [Citation.]
[¶] Reviewing courts defer to
reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.†[Citation.]’
Defendant’s burden is difficult to carry on direct appeal, as we have
observed: “‘Reviewing courts will
reverse convictions [on direct appeal] on the ground of inadequate
if the record on appeal affirmatively discloses that counsel had no rational tactical
purpose
omission.’†[Citation.]’
why counsel
acted or failed
to act in
the manner
challenged[,]
. . . unless counsel
was asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ the claim on appeal must be rejected,â€â€™ and the
‘claim of ineffective
assistance
in such a case is more appropriately decided in a habeas corpus proceeding.’
(People v. Vines (2011) 51
Cal.4th 830, 875-876.)
First,
although counsel’s performance was deficient because there could be no
strategic or tactical reason not to object, we are at a loss to see how Vasquez
was prejudiced, because he has failed to show how the outcome of the proceeding
would be any different. Vasquez implies
Ortiz’s testimony would be completely different had he been required to take
the oath; however, Vasquez offers no proof of such. Such “proof†would be more properly handled
in a habeas corpus proceeding with an attached declaration under penalty of
perjury from Ortiz establishing such.
Second,
a video was played to the jury that showed the entire robbery from two
angles. We see Rivera and Vasquez enter
the store. Vasquez approaches Gonzalez. Gonzalez then leaves the sales counter for
the back room. She returns with Ortiz
and Caratachea. Rivera begins to move
around the counter and lifts his shirt just as Ortiz arrives on the sales
floor. Ortiz immediately puts his hands
up. Rivera directs Ortiz and Caratachea
to move to the corner closest to Rivera.
Rivera points directly at Ortiz; Ortiz responds by putting his hands up
again. Ortiz then removes his wallet to
show there is no cash inside.
Third,
from the testimonies of both Gonzalez and Caratachea that defendants asked them
both for their money, it is rationally inferable they did so with respect to
Ortiz. Fourth and finally, Vasquez
confessed to the robbery at the Metro PCS on Sierra in Fontana on September 18,
2009. Thus, Vasquez suffered no
prejudice because substantial evidence outside of Ortiz’s testimony established
defendants attempted to rob Ortiz.
C. VASQUEZ: BRADY
ERROR
Vasquez
contends he was deprived of his constitutional right to confrontation of a
witness because evidence that Mireles had a pending charge against her in the
same court, which could have been used to impeach her, was not discovered until
after Mireles’s testimony. Moreover, he
argues the court’s later decision that it would have excluded such evidence
under Evidence Code section 352 amounted to an abuse of discretion. Thus, he maintains his conviction on count 22
for second degree robbery must be reversed due to Brady and evidentiary error.
We disagree.
On
March 30, 2011, after the People and Rivera had rested their cases, Vasquez
made an oral motion for dismissal of count 22, because the People had failed to
disclose Mireles had a pending felony case before the court. On April 4, 2011, Vasquez filed a motion for
mistrial as to count 22 alleging Brady
error in the People’s failure to disclose Mireles’s pending felony case. Counsel for Rivera had evidently discovered
on his own that Mireles was on the criminal calendar in that court for felony
grand theft charges with respect to her employment at Metro PCS.
At
a hearing on the matter on April 4, 2011, the court denied Vasquez’s motion
reasoning it would not have let the evidence be admitted at trial pursuant to
Evidence Code section 352 even if it had been timely disclosed. “[I]t will not come in for impeachment
purposes unless there is a conviction for felony [or] for
misdemeanors. . . .
[¶] A pending case, whether it’s
a misdemeanor or a felony, the only way you could impeach the witness would be
by bringing that issue and litigating that issue. It will be a trial within a trial. Under [Evidence Code section] 352, I [would]
not have allowed it had you known . . . .â€
“[T]his individual is still not convicted of anything. It’s just an accusation. [¶] .
. . [U]nder [an Evidence Code section] 352 analysis and lack of conviction of a
moral turpitude crime, would be also denied, your request for dismissal of that
count.†“The court refuses to extend the
obligation of the DA’s office to cross-check, to disclose any pending cases for
a possible impeachment. Because a
pending case is not . . . Brady material.
A conviction is. The pending case
may be useful for the defense if under [Evidence Code section] 352, the court
allows impeachment on a pending case based on a bad act, moral turpitude prior
act. . . . [¶] The court [would] not have allowed that
impeachment to occur because it [would] be a trial within a trial.â€
“‘The
federal due process clause prohibits the prosecution from suppressing evidence
materially favorable to the accused. The
duty of disclosure
exists regardless of good or bad faith, and regardless of whether the defense
has requested the materials.
[Citations.] The obligation is
not limited to evidence the prosecutor’s office itself actually knows or
possesses, but includes “evidence known to the others acting on the
government’s behalf in the case, including the police.†[Citation.]
[¶] For Brady purposes, evidence is
favorable if it helps the defense or hurts the prosecution, as by
prosecution witness. [Citations.] Evidence is material if there is a reasonable
probability its disclosure
would have altered the trial result.
[Citation.] Materiality includes
consideration of the effect of the nondisclosure on defense investigations and
trial strategies. [Citations.] Because a constitutional violation occurs
only if the suppressed evidence was material by these standards, a finding that
Brady
was not satisfied is reversible without need for further harmless-error
review. [Citation.]’ [Citation.]â€
(People v. Whalen (2013) 56
Cal.4th 1, 64.)
“[T]hat
a prosecution witness faced pending criminal matters, some of which were being
prosecuted by the same district attorney’s office prosecuting the defendant,
constitutes evidence “favorable†to the defense, in that a jury could view this
circumstance as negatively impacting the credibility of testimony by the
witness that was helpful to the prosecution.â€
(People v. Letner (2010) 50
Cal.4th 99, 176 [failure to disclose was not material where witness testimony
independently corroborated and witness already pled].) “[A] defendant is entitled to discovery of
criminal charges currently pending against prosecution witnesses anywhere in
the state. Contrary to the argument of
the prosecutor before the trial court, the pendency of criminal charges is material
to a witness’ motivation in testifying even where no express ‘promises of
leniency or immunity’ have been made.
During trial, defense counsel ‘is permitted to inquire whether charges
are pending against a witness as a circumstance tending to show that the
witness may be seeking leniency through testifying. [Citations.]’
[Citation.]†(
839, 842 [statutory discovery procedure, remanded to trial court].)
On
the other hand, “[I]t is established that evidence of mere arrests is
inadmissible because it is more prejudicial than probative. [Citations.]â€
(People v. Lopez (2005) 129
Cal.App.4th 1508, 1523; People v.
Anderson (1978) 20 Cal.3d 647, 650-651 [admission of evidence of
codefendant’s arrests constituted prejudicial error]; People v. Medina (1995) 11 Cal.4th 694, 769 [admission of evidence
of the defendant’s arrests was harmless error in light of properly admitted
evidence of the defendant’s extensive criminal record including convictions for
25 felonies].)
“Evidence Code
section 352 provides that a court ‘in its discretion may exclude
its probative value is substantially outweighed by the probability that its
will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the
jury.’ We review a trial court’s ruling
under this section for abuse of discretion and will reverse a trial court’s exercise of
to admit evidence
‘only if “the probative value of the [evidence] clearly is outweighed by
their prejudicial effect.â€
[Citations.]’ [Citation.]â€
(People v. Valdez (2012) 55
Cal.4th 82, 133.)
“‘“[T]he
latitude [Evidence Code] section 352 allows for exclusion of impeachment
evidence in individual cases is broad.
The statute empowers courts to prevent criminal trials from degenerating
into nitpicking wars of attrition over collateral credibility
[Citation.] Regarding
constitutional limitations, we have held that ‘“not every restriction on a
defendant’s desired method of cross-examination is a constitutional
violation. Within the confines of the
confrontation clause, the trial court retains wide latitude in restricting
cross-examination that is repetitive, prejudicial, confusing of the issues, or
of marginal relevance.â€
[Citation.]’ [Citation.]â€
(People v. Lewis (2001) 26
Cal.4th 334, 374-375.)
First,
we cannot say the People committed any Brady
error due to the non-disclosure of Mireles’s pending criminal charges. Nothing indicates Mireles had already pled to
the charges. The prosecutor noted that
she had run Mireles’s rap sheet, which disclosed only convictions, not pending
charges. Moreover, the record is devoid
of any information with regard to when Mireles was charged, i.e., whether it
was prior to trial or even after Mireles testified. Likewise, it is not altogether clear how the
People would have obtained such information.
Furthermore, the evidence was disclosed prior to the conclusion of
trial. (People v. Verdugo (2010) 50 Cal.4th 263, 282-283 [information
disclosed at trial was therefore not suppressed for purposes of
Regardless,
we hold the court acted within its broad discretion in ruling it would have
excluded the evidence even if it had been disclosed prior to Mireles’s
testimony. As noted above, evidence of
arrests has little, if any, probative value because it has not been proven the
individual has actually done anything wrong, i.e., the lack of a conviction
severely reduces its probative value.
Moreover, we agree with the trial court such evidence could easily
devolve into a mini trial on the witness’s guilt on the offense for which she
was charged. Vasquez maintains that he
“could have introduced the evidence in two sentences.†That may be true, but the question is whether
he would have limited himself to two
sentences should the evidence have been deemed admissible. Indeed, the time spent on the issue would
largely have been determined by how Mireles answered the questions asked of
her. If she posited she had been falsely
accused, both defendant and the prosecution would have been likely to delve
deeper into the nature of the allegations and the circumstances under which
they were made. Thus, the court’s
conclusion that admission of the evidence could devolve into a trial on the
allegations against Mireles, combined with its minimal probative value supports
the court’s ruling. Therefore, the court
acted within its discretion in determining the evidence was inadmissible.
Regardless,
even assuming error, it was harmless. (
1095, 1108 [Brady error
and “there is a reasonable probability that, absent the error, the fact finder would have had
a reasonable doubt respecting guiltâ€]; People
v. Moore (2011) 51 Cal.4th 386, 407, fn. 6 [erroneous Evidence Code section
352 analysis not reversible if harmless beyond a reasonable doubt].) Here, even if the jury were to disregard
Mireles’s testimony due to her arrest, overwhelming evidence still supported
the jury’s verdict on count 22.
Mireles’s coworker, Abril, testified defendants walked into the Metro
PCS store in Ontario on August 9, 2009; Rivera pulled a gun from his waist, pointed
it at Abril, and asked for the money.
Vasquez pulled out a bag and started grabbing cash from the drawer after
Abril had opened it. Mireles began
panicking and started to cry. One
defendant told them both to lock themselves in the restroom and not call the
police or defendants would go to their homes and kill them. Abril observed Vasquez had a tattoo of a
letter on his neck and later identified both defendants from pictures presented
him. Vasquez admitted committing the
robbery. Thus, any error was harmless
beyond a reasonable doubt.
D. VASQUEZ: FAILURE TO INSTRUCT THE JURY WITH LESSER
INCLUDED OFFENSE OF ATTEMPTED GRAND THEFT ON COUNT 9
Vasquez
contends the court erred in determining not to instruct the jury sua sponte on
the lesser included offense of attempted
grand theft with respect to count 9, the attempted second degree robbery of
Martin Gomez, because Gomez was not in fear or subjected to force. We disagree.
“‘“The
trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request.â€
[Citations.] “That obligation
encompasses instructions
on lesser
included
offenses if there is evidence that, if accepted by the trier of fact, would
absolve the defendant of guilt of the greater offense but not of the
[Citations.] ‘Nevertheless, “the
existence of ‘any evidence, no
matter how weak’ will not justify instructions on a lesser included offense . . . .†[Citation.]
Such instructions
are required only where there is “substantial evidence†from which a rational
jury could conclude that the defendant committed the lesser offense, and that he is not
guilty of the greater offense.
[Citations.]’ [Citation.]†(People
v. Whalen, supra, 56 Cal.4th at
p. 68.)
“Theft,
in whatever form it happens to occur, is a necessarily included offense of
robbery.†(People v. Ortega (1998) 19 Cal.4th 686, 690, overruled on other
grounds in People v. Reed (2006) 38
Cal.4th 1224, 1228-1229; People v.
Bradford (1997) 14 Cal.4th 1005, 1055-1056 [“If intent to
victim was assaulted, the robbery element of stealing by force or fear is
absentâ€].) “Robbery is the felonious
taking of personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means of force or
fear.†(§ 211.) Property, regardless of value, taken from the
person of another without force or fear, is grand theft. (§ 487, subd. (c).)
First,
though certainly not dispositive, the court explicitly found instruction with
the lesser offense of grand theft inappropriate because Gomez, regardless of
whether in fear, was subjected to force by the display of the gun. Both defense counsel below agreed instruction
with the lesser included offense of grand theft was inappropriate. Second, Vasquez selectively quotes Gomez’s
testimony. We quote the colloquy in its
contextual entirety:
“[Gomez:] And when they got all the money together, . .
. Vasquez says ‘Nobody calls the police[.]
If you call, we know all of you.
We know where you live. If you
call them, we’re going to go to your houses.’
“[Prosecutor:] And did you believe that to be true?
“[Gomez:] I didn’t believe them. I’m not afraid of them.
“[Prosecutor:] Were you scared at the time?
“[Gomez:] Oh, yeah, at that time I was because—
“[Prosecutor:] Because why?
“[Gomez:] Because at the moment [Rivera took] out the
gun, there was a man before him, a person.
And he pointed to his feet and he said, ‘Go over there.’ And he didn’t listen to him right
[a]way. And he said, ‘Go over there or
I’m going to shoot you.’â€
Gomez’s
statement that he was not afraid of defendants was in direct response to their
threat, after the robbery had been concluded, to come to his house should he
and/or the other victims call the police.
Indeed, Gomez testified he was scared at the time of the robbery because
Rivera had taken out a gun and threatened another. Thus, there was no evidence that Gomez felt
neither force nor fear. On the contrary,
Gomez’s testimony established conclusively he felt both. Therefore, no evidence supported giving the
instruction on the lesser included offense of grand theft. The court acted appropriately in declining to
give the instruction.
E. RIVERA: UNAUTHORIZED SENTENCE ON COUNT 34
Rivera
maintains the court imposed an unauthorized term of one year on count 34, when
it was limited to the imposition of an eight-month term. The People concede the error, but contend the
matter must be remanded for resentencing.
“[I]t
is well established that the appellate court can correct a legal error
resulting in an unauthorized
sentence .
. . at any time. [Citation.]†(People
v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)
When
sentencing Rivera on count 34, the court referred to the conviction as one for
second degree robbery, when Rivera had actually been convicted only of
third the middle term of three years, or one year; the punishment for second
degree robbery. (§ 213, subd.
(a)(2).) The punishment for attempted
second degree robbery is 16 months, two years, or three years. (§§ 18, 213, subd. (a)(2)(b).) When imposing sentence on Vasquez on count
34, the court correctly labeled the offense as attempted second degree robbery
and imposed a consecutive authorized sentence of one third the midterm of two
years, or eight months. The court imposed
consecutive midterm sentences on all of Rivera’s convictions other than the
principal count. We think it clear the
court intended to impose an authorized sentence on Rivera of one third the
midterm of two years, or eight months. (
1463, 1469, 1472-1473 [where reviewing court can clearly determine the court’s
intent, it may order modification of the sentence without remand].) Therefore, we will direct the court to modify
the minute order dated April 11, 2011, and the abstract of judgment, to reflect
the imposition of a consecutive term of eight months, one third the midterm of
two years, with respect to Rivera on count 34.
F. RIVERA: CORRECTION OF CUSTODY CREDITS AND DATE OF
CONVICTION
Rivera
contends the abstract of judgment fails to reflect the court’s award of custody
credits, and incorrectly states the date of his conviction for each of his
offenses. He requests the abstract of
judgment be corrected to accurately reflect the court’s judgment and the date
of his convictions. The People fail to
respond. We agree with Rivera and shall
direct the superior court to correct the abstract of judgment to accurately
reflect the award of custody credits and the date of his convictions.
“It
is well settled that ‘[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the
trial court’s oral judgment and may not add to or modify the judgment it purports to digest or
summarize. [Citation.]’ [Citation.]
When an abstract
of judgment
does not reflect the actual sentence imposed in the trial judge’s verbal
pronouncement, [a reviewing] court has the inherent
power to correct
such clerical error on appeal, whether on our own motion or upon application of
the parties. [Citation.] We [may] therefore order that the
conform to the actual sentence imposed by the trial court . . . .†(People
v. Jones (2012) 54 Cal.4th 1, 89.)
The
court awarded Rivera 604 days of actual and 90 days of conduct credit for a
total of 694 days of custody credit. The abstract of judgment for Rivera does not
reflect the award of any custody credit.
We shall therefore direct the superior court to correct the abstract of
judgment to reflect the award of 694 days of custody credit consisting of 604
days of actual credit and 90 days of conduct credit.
The
abstract of judgment also incorrectly reflects that the jury convicted Rivera
on April 12, 2011. The jury actually
convicted Rivera on April 11, 2011.
Thus, we shall also direct the superior court to correct the abstract of
judgment to reflect Rivera’s conviction date as April 11, 2011.
The
superior court is directed to modify the minute order dated June 2, 2011, and
the abstract of judgment with respect to defendant Rivera to reflect the
imposition of a consecutive term of eight months, one third the midterm of two
years, on count 34. This would result in
an aggregate sentence of 86 years, 4 months.
The superior court is additionally directed to correct the abstract of
judgment with respect to defendant Rivera to reflect the award of 604 days of
actual and 90 days of conduct credit, for a total award of 694 days of custody
credit. Furthermore, the superior court
is directed to correct the abstract of judgment with respect to defendant
Rivera to reflect a conviction date of April 11, 2011. The modified and corrected abstract of
judgment and minute order shall be forwarded to the
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The
jury also found not true allegations Rivera personally used a handgun in counts
14 and 33. The People earlier dismissed
counts 12, 13, 16, and 30. It also
dismissed the personal use allegations attached to counts 17 and 34; and that a
coparticipant was armed, attached to counts 17 and 34.
