Filed 2/14/18 P. v. Uribe CA4/3







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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MARIA DEL CARMEN URIBE,

Defendant and Appellant.


G054826

(Super. Ct. No. 15CF2707)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert Alan Knox, Judge. Affirmed in part, reversed in part, and remanded with directions.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

* * *
A jury convicted defendant Maria Del Carmen Uribe of second degree robbery; attempted kidnapping; attempted carjacking; felony elder and dependent adult abuse; and misdemeanor elder and dependent adult abuse, as a lesser offense to felony elder and dependent adult abuse. The jury also found true sentence enhancement allegations that the robbery was committed against vulnerable victims.
The court found true sentence enhancement allegations defendant had suffered two prior serious or violent felony (“strike”) convictions (Pen. Code, §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A), all undesignated statutory references are to this code); two prior serious felony convictions (§ 667, subd. (a)); and three prison prior convictions (§ 667.5, subd. (b)). The court imposed a third strike sentence of 37 years to life, consisting of two concurrent 25 years to life terms, plus two consecutive five-year terms for the prior serious felony conviction enhancements, and a consecutive two-year term for the vulnerable victim enhancements.
We appointed counsel to represent defendant on appeal. Counsel filed a brief summarizing the proceedings and facts of the case and advised the court she found no arguable issues to assert on her behalf. (Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel and this court both notified defendant that she could file a supplemental brief on her own behalf. But we received no supplemental brief from her and the time to file one has passed.
To assist us in our independent review, counsel suggested several potential issues. We determined one of them might be arguable, and ordered the parties to brief it. Defendant filed a supplemental brief which argued her trial counsel provided ineffective assistance in failing to challenge defendant’s third strike sentence under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and section 1385. The People did not file a brief and the time for them to do so has passed.
We affirm the convictions, but reverse the judgment and remand with directions to allow defendant to invite the court to exercise its discretion under Romero.
FACTS
The victims, 92-year-old Pedro Gomez, and his 86-year-old wife, Nelly Gomez, were in their car in front of a liquor store in Tustin. A woman, who Nelly later identified as defendant, got in the rear passenger seat and yelled, “Drive, drive, drive” while holding a cloth tightly around Pedro’s neck.
Nelly grabbed defendant’s arm and fought with her. Nelly broke a fingernail; and the woman hit Nelly in the head and body. The woman grabbed Nelly’s purse and took off running. Nelly’s wallet was inside the purse and it contained cash, although she gave conflicting statements about the amount of cash.
Max Chahla, a liquor store clerk, corroborated the victim’s testimony about the incident. The woman had been in the store immediately before she entered the Gomezes’ car. Chahla saw the woman open the car door and get in. About 15 seconds later, she got out, and calmly walked away.
Chahla noticed Pedro kind of panicking and signaling him, so he went over and immediately called 911. He passed the phone to Nelly, and she described the woman as “oriental,” about 30 years old, and wearing a gray dress.
Tustin Police Officer Taylor Ryan responded and interviewed the Gomezes and Chahla. Both Gomezes were crying and shaking. Ryan described a language barrier with Nelly because she did not speak English very well. Nelly omitted some details she related later during her trial testimony.
Chahla told Ryan the woman was probably Hispanic, on the heavy side, with black hair in a long ponytail down to her buttocks. She wore a gray shirt; black shorts; black, almost knee-high socks; and black Jordan sneakers. Chahla noticed no tattoos on her arms nor a large mole on her face, though both were depicted in photographs introduced at trial. Chahla later testified he could not identify defendant in court, because he had forgotten what she looked like.
Tustin Traffic Officer Ralph Casiello was on patrol when he received a dispatch describing an Asian female, about 30 years old, and wearing a gray dress. As Casiello was approaching Yorba, he saw defendant walking down the street, but he drove past her because she did not match that description.
After Casiello passed by, he received an updated description that matched defendant—a Hispanic female, with long black hair, a gray T-shirt, black shorts, and black socks and shoes. Casiello soon found defendant walking east on Irvine Boulevard, about one-half mile from the liquor store.
Defendant had $44 wadded up in her pocket, in denominations consistent with one of the conflicting statements given by Nelly. Nelly and Chahla were transported to where defendant was detained, and both identified her as the woman who had entered and exited the Gomezes’ car.
Nelly’s wallet was found in a planter just north of the liquor store. It contained her identification and bank cards, but no cash.
SENTENCING BRIEF AND HEARING
Prior to the sentencing hearing, defendant’s trial counsel filed a sentencing brief in which he argued circumstances in mitigation and aggravation, and listed factors in her background, character and prospects for the court to consider. At the end of the sentencing brief, in a single sentence under the heading “Conclusion,” without citing Romero or section 1385, defendant’s counsel requested the court “to strike at least one prior strike and sentence [defendant] to a determinate sentence.”
At the sentencing hearing, the court indicated it had tentatively decided to impose a third strike sentence. The court inquired whether either counsel wanted to be heard with respect to the indicated sentence. Defendant’s counsel submitted on the indicated sentence without argument. Defendant’s counsel did not request the court to exercise its discretion to strike any of her prior convictions under Romero and section 1385, and did not press the court for a ruling on the issue.
DISCUSSION
1. Ineffective Assistance of Counsel - Romero
A defendant asserting ineffective assistance of counsel must demonstrate deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) The proper measure of performance is reasonableness under prevailing professional norms, and there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (In re Thomas (2006) 37 Cal.4th 1249, 1258.)
Nevertheless, we perceive no rational tactical purpose in defense counsel’s failure to request Romero relief at the sentencing hearing or to press the court for a ruling on the issue. At that point there could have been no adverse impact on the sentencing, and thus no “satisfactory explanation” for the failure. (People v. Bell (1989) 49 Cal.3d 502, 546; People v. Pope (1979) 23 Cal.3d 412, 426.) This was error, not strategy.
Regarding prejudice, a defendant must show “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.” (Strickland, supra, 466 U.S. at p. 694.) It “‘“does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” [Citation.]’” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.)
In our view, there is more than an abstract possibility of a more favorable second-strike, determinate sentence in this case if defendant’s counsel had properly requested and pursued Romero relief. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Rogers (2006) 39 Cal.4th 826, 867-868.) To be clear, we are not saying the court would have granted Romero relief, just that it could possibly have done so.
For these reasons, we conclude the general presumption in favor of counsel’s tactics has been rebutted, and the judgment must be reversed for ineffective assistance regarding the sentencing. (People v. Scott (1994) 9 Cal.4th 331, 351.)
2. Other Potential Issues Suggested by Appellate Defense Counsel
Turning to the other potential issues suggested by counsel set out and summarily discussed below, we have reviewed the entire record as required under Anders and Wende, and we have found no other arguable issues on appeal. Therefore, the convictions must be affirmed.
Here are the other potential issues counsel suggested, and our responses:
“1. Whether the court erred in overruling defense counsel’s objection, and later request for mistrial, to the prosecutor’s late discovery and admission into evidence of . . . Casiello’s sudden revelation that [defendant] tried to hide from him when he approached her just prior to her arrest. Previous information relied upon by the defense was only that Casiello stopped [defendant] because she matched the description, not because she acted suspiciously.”
No discovery violation occurred. (§ 1054, et seq.) Thus, the court did not err in overruling the objection or denying the mistrial request.
“2. Whether . . . Nelly’s eyewitness identification was irreparably tainted by the officer telling her they had arrested the woman who had attacked them? Officer Ryan said he was aware of the importance of not influencing witnesses yet he told Nelly they had arrested [defendant] and that she would be going to jail.”
On this record, defendant cannot meet her burden of showing that under the “totality of the circumstances” (Stovall v. Denno (1967) 388 U.S. 293, 302), the show-up gave rise to “a very substantial likelihood of irreparable misidentification” (Simmons v. U.S. (1968) 390 U.S. 377, 384; People v. Johnson (1989) 210 Cal.App.3d 316, 322).
“3. Whether the court erred in giving the CALCRIM [No.] 372 flight instruction, over defense objection, where [defendant] merely left the scene walking calmly and did not flee.”
The evidence supported giving the instruction. Flight does not require a person to run from the scene. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
“4. Whether the evidence was sufficient to prove both an attempted carjacking and an attempted kidnaping, since carjacking would require a taking of the vehicle from the owners while kidnaping would require the owners to stay in the vehicle? (See People v. Duran (2001) 88 Cal.App.4th 1371 [(Duran) the defendant need only take dominion and control over the car away from owner, not the car itself].)”
There is substantial evidence to support both attempted carjacking and an attempted kidnaping. A felonious taking under the carjacking statute can occur when the victims remain in the car. (Duran, supra, 88 Cal.App.4th at pp. 1375-1377.)
“5. Was the evidence sufficient to prove ‘circumstances or conditions likely to produce [great bodily injury] or death?’”
That defendant held a cloth tightly around 92-year-old Pedro’s neck is sufficient. We are required to review the evidence in the light most favorable to the verdict, reach all reasonable inferences and deductions presented by the evidence, and resolve all conflicts in favor of the judgment. (Duran, supra, 88 Cal.App.4th at p. 1375.)
“6. Was the evidence sufficient to prove Nelly’s husband Pedro was a victim of robbery where the only item taken was Nelly’s wallet?”
The evidence is sufficient. If force or fear is applied to two victims in joint possession of property, then two robbery convictions are proper. (People v. Ramos (1982) 30 Cal.3d 553, 589, revd. on other grounds sub. nom. California v. Ramos (1983) 463 U.S. 992.)
“7. Did the court properly respond to the jury’s question as to Pedro’s interest in the wallet by referencing principles of constructive possession?”
Yes. “For constructive possession, courts have required that the alleged victim of a robbery have a ‘special relationship’ with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner. [Citations.]” (People v. Scott (2009) 45 Cal.4th 743, 750.)
“8. Does CALCRIM [No.] 376 improperly lessen the prosecutor’s burden of proof where the allegedly recently stolen property found in the defendant’s possession is a generic, as opposed to unique, item such as cash where there is no sound basis for the jury to conclude it is actually stolen?”
No. The case law that requires only slight corroborating evidence to support the permissive inference of CALCRIM No. 376 does not change the prosecution’s burden of proof. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1035-1036.)
“9. Whether the court erred in allowing the district attorney to certify [Department of Motor Vehicles] records or rap sheets themselves on records they were using in their own case.”
The court did not err. (Evid. Code, § 1530, subd. (a)(2).)
“11. Whether trial counsel provided IAC in failing to challenge [defendant’s] sentence on Eighth Amendment, cruel and unusual punishment grounds?”
This issue is moot given our disposition of the Romero ineffective assistance of counsel claim.
 
DISPOSITION
The convictions are affirmed. The judgment is conditionally reversed, and the matter is remanded to the trial court with directions to allow defendant another opportunity to invite the court to exercise its discretion under Romero.
If the court decides to exercise its discretion under Romero, then the court shall conduct a new sentencing hearing. If the court decides not to exercise its discretion under Romero, then the previously imposed sentence shall be reinstated.
Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the clerk of this court is directed to forward a copy of this opinion to the State Bar.




THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.