P. v. Torrez
Filed 5/2/13 P.
v. Torrez CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN DANIEL
TORREZ et al.,
Defendants and Appellants.
B237122
(Los Angeles County
Super. Ct. No.
GA082246)
APPEAL
from judgments of the Superior Court of
County. Michael
Villalobos, Judge. Affirmed.
Dennis L. Cava,
under appointment by the Court of Appeal, for Defendant and Appellant John
Daniel Torrez.
Stephanie L.
Gunther, under appointment by the Court of Appeal, for Defendant and Appellant
Christie Lynn Brown.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Chung L. Mar and Erika D.
Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Appellants
John Daniel Torrez (Torrez) and Christie Lynn Brown (Brown) appeal from
judgments entered against them following their convictions by jury of
of two counts, and Brown guilty of one count.
Torrez waived a jury trial on his prior conviction
allegations and the trial court found true that he had
suffered a prior serious felony conviction for attempted robbery (§ 664/211)
within the meaning of section 667, subdivision (a)(1) and the “Three Strikesâ€
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and that he had
suffered two prior convictions within the meaning of section 667.5, subdivision
(b). Torrez was sentenced to 15 years in
state prison, consisting of four
years on the first count of burglary doubled pursuant to the Three Strikes law,
plus five years for the prior serious felony and two one-year enhancements
pursuant to section 667.5, subdivision (b). The court imposed a concurrent term of
four years for the second count of burglary. Brown was sentenced to state
Torrez
contends the evidence was insufficient to support his conviction for first
degree burglary and that the four-year concurrent sentence imposed for the
second count of burglary should have been stayed pursuant to section 654. Brown contends the court erred in excluding
relevant evidence establishing the defense of duress.
Finding
no merit in the contentions, we affirm the judgments.
FACTS
Prosecution Evidence
Ronald
Hansen was the manager of a gated 37-unit apartment complex on Live
Oak Street in San
Gabriel.
Access to the building was through a secured pedestrian gate that
required either a key or a code to open.
Tenants could also “buzz in†visitors through the pedestrian gate. A secured drive-through gate to the parking
garage which was “directly underneath the apartments†required a remote control
opener to enter and exit. Security
cameras triggered by motion detectors were placed at the pedestrian and
drive-through gates, and by the elevator and stairwell in the parking
garage. Hansen monitored the live feed
in his apartment and the cameras recorded when motion was detected.
On
November 27,
2010, around midnight,
Hansen saw Brown’s car pull up to the drive-through gate. Torrez walked over to the pedestrian gate and
appeared to be using the telephone that dialed tenant apartments. Torrez entered the complex. Hansen next saw Torrez in the stairwell to
the garage and then shortly thereafter in the garage walking between a Honda
Accord and a Volvo Wagon owned by Anthony Faure, a tenant of the complex. Hansen saw Torrez walk out and exit the
garage through the drive-through security gate.
Approximately
10 to 15 minutes later Hansen saw Brown’s car again. This time Brown pulled up outside and the
drive-through gate opened and Brown entered the garage. The car did not belong to a tenant and Hansen
went to the garage to investigate. Some
tenants of the complex stored property by the wall at the front of their
parking stalls. Hansen saw Brown park
her vehicle in an empty garage stall.
Torrez and Brown got out of the car and Hansen saw them looking at
tenants’ property stored nearby. Hansen
called the police because neither Torrez nor Brown were tenants at the
complex. He watched them from
approximately 50 yards away as Brown moved the car to a different stall and she
and Torrez again looked at tenants’ property.
During this time, Faure drove out of the parking garage in his
Volvo. As Hansen walked back and forth
in the garage waiting for the police to arrive, he saw Torrez seated in the
front passenger seat of Brown’s car when she drove past him.
San
Gabriel Police Officer Nhat Huynh responded to the apartment complex and
entered the garage when a resident opened the gate for him. He saw Brown drive slowly through the garage
and stop close to him. Brown consented
to a search of the car and Officer Huynh found a gym bag containing various
tools including screwdrivers, a wrench, and a wire cutter. Officer Huynh also found a small black remote
control in plain sight between the front driver and passenger seats of Brown’s
car which opened the drive-through gate to the parking garage. Torrez admitted the gym bag was his and a
flashlight was found in his right front pants pocket.
Faure
returned to the garage and saw that the console and glove box of his Honda
Accord were open. Coins were missing
from the glove box and the remote control gate opener that he usually kept on
the visor was also missing. Faure
identified the remote control gate opener found in Brown’s car as his. Faure did not know Torrez or Brown and did
not give them access to the garage or permission to take his property.
Defense Evidence
Brown
testified that she loaned Torrez her car earlier in the day. When he returned the car late at night he
asked her to give him a ride to the apartment complex. Torrez told Brown he planned to stay with
friends that lived there but asked her to wait for him. Brown did not see where Torrez went when he
got out of her car and she fixed the plastic covering on the broken back window
of the car while waiting for him. Torrez
returned to the car and Brown drove him to a nearby 7-Eleven. Torrez then asked Brown to drive him back to
his friends at the apartment complex.
Brown did not know how Torrez was able to open the drive-through gate to
the parking garage but she drove inside.
Brown could not remember when Torrez got out of the car but did remember
him telling her to wait while he made sure he could stay with his friends.
When
Brown pulled into a parking stall she heard a “crunch†and got out to inspect
her car for damages. She saw Hansen and
thought he needed to move his car so she moved to a different stall on a lower
level and again got out to inspect her car for damages. Torrez had not returned and Brown testified
that she “got tired of waiting†and “went to leave.†Torrez returned as she moved out of the
parking stall and the police showed up as she tried to leave and blocked her
exit. Brown testified that some of the
tools in the gym bag were hers and that she used them to work on cars. She denied opening any car doors or looking
in car windows.
Torrez
did not present any evidence in his defense.
I. Torrez’s Conviction for First Degree
Burglary
Torrez
does not dispute he burglarized the underground parking garage within the
apartment complex. Instead, he
challenges the degree of the burglary.
He contends there was insufficient evidence to support his convictions
for first degree burglary because the prosecution failed to prove that the
garage was attached to the apartments and functionally connected with them.
First
degree burglary is: “Every burglary of
an inhabited dwelling house, . . . . [¶]
[a]ll other kinds of burglary are of the second degree.†(§ 460, subds. (a) and (b).) The term “inhabited†means “currently being
used for dwelling purposes.†(§ 459.)
The
term “inhabited dwelling house†has been interpreted broadly to include areas
not normally considered part of a home’s living space. (People
v. Cruz (1996) 13 Cal.4th 764, 779; People
v. Woods (1998) 65 Cal.App.4th 345, 347–348.) Whether an attached structure is part of an
inhabited dwelling house for the purposes of sections 459 and 460 is determined
by whether it “is an integral part of a dwelling, that is, functionally
interconnected with and immediately contiguous to other portions of the
house.†(People v. Ingram (1995) 40 Cal.App.4th 1397, 1404, disapproved on
another ground by People v. Dotson
(1997) 16 Cal.4th 547, 559.)
Courts
have consistently determined an attached garage is part of an inhabited
dwelling house. In People v. Cook (1982) 135 Cal.App.3d 785, 795 (Cook), the court recognized that an attached garage and enclosed
patio are not “. . . separate structures; rather, they are an
integral part of [one’s] residence, entry into any part of which would be
sufficient to constitute a burglary.
[Citation.]â€
In
People v. Moreno (1984) 158
Cal.App.3d 109, 112, the court, relying on Cook,
determined an attached garage need not have a door connecting the garage to the
interior of the house to be part of the dwelling house. The court stated, “[G]iven the fact that the
garage was under the same roof, functionally interconnected with, and
immediately contiguous to other portions of the house, simple logic would
suffer were we to leap over this interrelationship to a conclusion that a
garage is not part of a dwelling because no inside entrance connects the
two. [Citations.]†(Ibid.;
see also People v. Coutu (1985) 171
Cal.App.3d 192, 193 [burglary of a storeroom connected to an inhabited dwelling
by a breezeway constituted first degree burglary]; In re Christopher J. (1980) 102 Cal.App.3d 76, 78 [attached
carport, with two sides open, deemed part of an inhabited “dwelling houseâ€].)
Here,
sufficient evidence supports the jury’s finding of first degree burglary. The apartment building consisted of 37 units
atop a gated underground parking garage.
That the apartment building was inhabited—that is, currently used for
dwelling purposes—was established by the testimony of Anthony Faure, a
second-floor tenant, who lived in the building at the time of the
burglary. Hansen, the building manager,
testified the parking garage was “directly underneath the apartments.†Logically therefore, the ceiling of the
garage was the floor of the first floor apartments, establishing that the
garage of the apartment building was attached and immediately contiguous to the
residential areas of the building, and that the garage and apartments were
located under the same roof. Hansen also
testified the garage was accessible from the apartments by an internal
elevator, and a stairwell. The garage
was gated and access to it was restricted; the gate could only be opened by
remote control. Tenants’ cars were
in their parking stalls. Under these
facts, a reasonable jury could find that the garage was functionally connected
with, contiguous to, and an integral part of the building’s living quarters. (See People
v. Zelaya (1987) 194 Cal.App.3d 73, 75–76 [garage and storage rooms located
underneath an apartment building were part of an inhabited dwelling house].)
II. Torrez’s Sentence Did Not Violate
Section 654
Torrez
contends that the trial court erred when it failed to
stay execution of sentence on the second count of burglary because the two
burglaries constituted an indivisible course of conduct.
Section
654 bars multiple punishments where “there is a course of conduct that violates
more than one statute but nevertheless constitutes an indivisible
transaction.†(People v. Hairston (2009) 174 Cal.App.4th 231, 240.) If a defendant commits more than one offense,
but ‘“all the offenses were incident to one objective, the defendant may be
punished for any one of such offenses, but not for more than one.’ (People
v. Perez (1979) 23 Cal.3d 545, 551.)â€
(People v. Wynn (2010) 184
Cal.App.4th 1210, 1214–1215, italics omitted.)
The statute does not apply to bar multiple punishments where the
defendant held multiple objectives or intents.
(People v. Coleman (1989) 48
Cal.3d 112, 162.) “‘Whether a course of
conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the “intent and objective†of the actor.’†(People
v. Hairston, supra, at p. 240, quoting Neal
v. State of California (1960) 55 Cal.2d 11, 19.) The amount of time that elapses between
criminal acts, “although not determinative on the question of whether there was
a single objective, is a relevant consideration.†(People
v. Martin (2005) 133 Cal.App.4th 776, 781.)
Where the offenses are separated in time, affording the defendant
“‘opportunity to reflect and to renew his or her intent before committing’†the
next offense, the trial court may conclude that the defendant had multiple
objectives and committed more than one criminal act meriting multiple
punishments. (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
We
apply a substantial evidence standard of review. ‘“The determination of whether there was more
than one objective is a factual determination, which will not be reversed on
appeal unless unsupported by the evidence presented at trial.’ [Citations.]
‘[T]he law gives the trial court broad latitude in making this determination.’ [Citation.]â€
(People v. Wynn, supra, 184
Cal.App.4th at p. 1215.)
In
light of the record and what can be rationally deduced,
court’s conclusion that Torrez entertained separate objectives. The evidence showed
that Torrez initially entered the parking garage via the pedestrian entrance
and the stairwell connecting the building to the garage. He stole property belonging to Faure and then
left the scene with Brown. They drove to
7-Eleven and Torrez went inside. Torrez
returned 15 minutes later and entered the parking garage a second time using
the remote control gate opener he had earlier taken from Faure’s car.
To
support a “single objective†theory, Torrez contends that the first entry in
which he stole the remote control gate opener was intended to facilitate the
second entry committed 15 minutes later when he stole some coins from
Faure. An initial problem with Torrez’s
theory is that the evidence does not show that he took the gate opener and the
coins at separate times.
The
test for determining the separateness of alleged multiple burglaries
for purposes of section 654 was whether the defendant had the opportunity to
reflect after the first entry, and nevertheless entered the premises
again. A more
reasonable inference to be drawn from the evidence is that Torrez took the gate
opener to facilitate his escape from the garage and then having had time to
reflect during the trip to 7-Eleven returned a second time to steal whatever
additional property he could find.
We
find support in In re William S.
(1989) 208 Cal.App.3d 313, where the defendant entered a home,
took several items of property, and departed through the front door, which he
left unlocked. He returned several hours
later, entered through the unlocked door, took several more items, and again
departed. (Id. at pp. 315–316.)
Defendant argued that he committed only one burglary, but that even if
he had committed two, he could be sentenced only once because leaving the door
unlocked during the first entry evinced a single criminal intent because it was
done to facilitate the second entry. (
The
court rejected the defendant’s argument of a single criminal intent because he
left the door unlocked in order to return a second time. The court found the
defendant had ample opportunity to reflect between entries, constituting two
separate burglaries. (
p. 317; see also People v. Trotter
(1992) 7 Cal.App.4th 363, 366–367 [court imposed consecutive sentences for two
assaults on the same victim occurring approximately one minute apart].)
Here,
Torrez’s entries into the parking garage are a “course of conduct divisible in
time,†consisting of separate offenses which may therefore be separately
punished. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.)
III. Brown’s
Proffered Testimony Regarding the Defense of Duress Was Properly Excluded
Brown raises numerous contentions related to the exclusion of
testimony concerning her fear of Torrez.
She contends the evidence was relevant and necessary to show appellant’s
state of mind as it related to her claim of duress. She also contends the evidence should have
been admitted because the right to present a defense “trumps the rules of
evidence.â€
B. Pertinent Facts
During Brown’s testimony her counsel attempted to put on evidence
that Torrez was abusive towards Brown by asking her if she was afraid of
Torrez. The court sustained the
prosecutor’s relevance objection.
Torrez’s counsel objected on the grounds of relevance and speculation
when Brown’s defense counsel again attempted to elicit similar testimony. At a sidebar discussion, Brown’s counsel
asserted that Brown continued to wait for Torrez, even though she did not want
to be there, because he beat her, and his most recent prison stint was for
beating her. The court stated that such
testimony about Torrez’s conduct and prison stay would be “highly prejudicialâ€
and precluded under Evidence Code section 352.
The court did not want the jury to speculate why Brown may be afraid of
Torrez and refused Brown’s counsel’s request to give a limiting instruction to
the jury prohibiting speculation. In
sustaining the objections, the court stated that it was not clear based on the
testimony in the case that Brown’s fear was relevant or material. The court explained that the testimony showed
that Brown was at the apartment complex “and doesn’t know what’s going on. She’s just there to drop off a friend. I don’t see this fear factor really coming
into play.â€
To determine whether there was an abuse of discretion, we address two
factors: (1) whether the testimony
regarding Brown’s alleged fear of Torrez satisfied the “relevancy†requirement
set forth in Evidence Code section 210,
the evidence was relevant, whether the trial court abused its discretion under
Evidence Code section 352
that the probative value of the testimony outweighed its prejudicial
effect. (People v. Heard (2003) 31 Cal.4th 946, 972.) The trial court has broad discretion to
determine whether evidence is relevant and the trial court’s ruling will
not be disturbed, and reversal of the judgment is not required, unless the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice. (People
v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
The trial court has no discretion to admit irrelevant evidence. (Evid. Code, § 350; People v. Derello (1989) 211 Cal.App.3d 414, 425–426.)
We find no abuse of discretion in the trial court’s
decision to exclude evidence of Brown’s alleged fear of Torrez because it
was irrelevant to Brown’s defense. (Evid. Code, §§ 210, 350.)
Brown contends that her state of mind was relevant to show she stayed
out of fear of Torrez but her defense was that she was an innocent
bystander. She did not testify that
Torrez forced her to drive to the apartment complex or forced her to wait for
him inside the garage.
Brown testified in great detail to account for her presence
in the underground garage and how she was completely unaware of what Torrez
intended to do that night. She was at
home sleeping when Torrez woke her up and asked if she would drive him to the
apartment complex so he could stay there with friends. She did not see where he went or what he did
on their first trip to the apartment complex because she described how she was
busy fixing the plastic covering on the broken back window of her car. She testified that when she and Torrez
returned from 7-Eleven she did not see him use the remote control gate opener
to gain access to the underground garage.
She did not remember where in the garage she was when Torrez got out of
the car. She did not see Torrez while
she was examining her car for damage and did not know where he was. She moved her car to a different parking
stall in the lower level and continued to wait because Torrez asked her to do
so. But, after a few minutes she got
tired of waiting for Torrez and decided to leave. She was driving out when she saw Torrez
walking towards her car. Torrez got into
the car immediately before she was stopped by the police.
The trial court
conducted an Evidence Code section 352 analysis and also correctly found that
the severe prejudice of Brown’s testimony that she feared Torrez, substantially
outweighed any probative value. But, the
balancing test was unnecessary considering the facts
that were before the trial court at the time of the ruling and Brown’s
testimony in support of her defense theory.
The proffered testimony that Brown was afraid of Torrez was
properly excluded because it was irrelevant to Brown’s defense.
There
was insufficient evidence to support the defense of duress in this case. Brown did not testify that she wanted to
leave the apartment complex and was prevented from doing so by Torrez. Brown testified that she decided to leave
because she got tired of waiting for Torrez to return. She did in fact drive out of the parking
stall and was leaving when Torrez approached the car. At the core of the defense of duress is ‘“the
situation of a present and active aggressor threatening immediate
danger.â€â€™ (People v. Vieira (2005) 35 Cal.4th 264, 290.) Brown’s testimony in general does not portray
Torrez as an aggressor threatening her.
She had loaned him her car and he brought it back. He woke her up and asked her to drive him to the apartment complex. He asked
her to wait outside for him. He
leave the garage presumably without Torrez, is entirely inconsistent with a
defense of duress. (See
892, 901–902 [the defendant’s testimony that a person held a gun to the
defendant’s head and threatened to kill him if he did not commit burglary was
evidence of duress].)
Finally,
Brown contends that her “constitutional right to a defense trumps the rules of
evidence.†She relies on the statement
in People v. Reeder (1978) 82
Cal.App.3d 543, “Evidence Code section 352 must bow to the due process right of
a defendant to a fair trial and to his right to present all relevant evidence
of significant probative value to his
defense.†(Id. at p. 553.) That opinion
followed that statement with the qualification, “We do not mean to imply,
however, that a defendant has a constitutional right to present all relevant
evidence in his favor, no matter how limited in probative value such evidence
will be so as to preclude the trial court from using Evidence Code section
352.†(Ibid.)
We
do not see that Brown made this constitutional objection in the trial court.
However, “defendant may make a very narrow due process argument on
appeal.†(People v. Partida (2005) 37 Cal.4th 428, 435, discussing Evid.
Code, § 352.) Brown may argue that the
asserted error in excluding the evidence “had the additional legal consequence
of violating due process†by depriving her of a right to present evidence. (Ibid.)
In
People v. Boyette (2002) 29 Cal.4th
381, the Supreme Court stated, “‘As a general matter, the “[a]pplication of the
ordinary rules of evidence . . . does not impermissibly infringe
on a defendant’s right to present a defense.â€
[Citations.] Although completely
excluding evidence of an accused’s defense theoretically could rise to this
level, excluding defense evidence on a minor or subsidiary point does not
impair an accused’s due process right to present a defense. [Citation.]’â€
(Id. at pp. 427–428.)
In
this case, our conclusion that evidence of Brown’s alleged fear of Torrez was
not relevant (§§ 210, 350) and that there was no error under Evidence Code
section 352 ends the constitutional inquiry.
Brown was allowed to present a defense and did so, both through her own
testimony and cross-examination of the People’s witnesses. The trial court did not completely exclude
evidence of her defense. (
p. 428.)
DISPOSITION
The
judgments are affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
unless otherwise stated.
and admitted into evidence (designated People’s exhibits 1 and 2).
