P. v. Belmontes
Filed 8/2/07 P. v. Belmontes CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. DENISE BELMONTES, Defendant and Appellant. | G037580 (Super. Ct. No. 05NF1024) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Denise Belmontes of unlawfully taking a vehicle. (Veh. Code, 10851, subd. (a).) In a bifurcated trial, the court found Belmontes had been previously convicted of unlawfully taking a vehicle (Veh. Code, 10851, subd. (a)), had suffered two serious and violent felony convictions (Pen. Code, 667, subds. (d) & (e)(2)(A))[1], and had served three prior prison terms ( 667.5, subd. (b)). After exercising its discretion under section 1385 to strike one of defendants serious felony convictions, the court sentenced her to a total prison term of 11 years with custody credit for 823 days. Defendant contends the prosecutor committed misconduct by disparaging defense counsels character and integrity and the evidence did not support the courts finding she suffered a prior serious felony conviction. We disagree and affirm the judgment.
FACTS[2]
Around October 2004, Venessa Duenas and her boyfriend, Oscar Tellez, met defendant through a mutual friend named Manuel. In late November 2004, Duenas and Tellez bought a new blue 2005 Chrysler 300.
On Christmas Eve of that year, Duenas and Tellez were hosting a casual gathering of relatives and friends at their apartment to which they invited defendant because she had nowhere else to go. They offered [defendant] a place to shower and to change [clothes] and to celebrate Christmas Eve. Around 11:00 p.m., Duenas and defendant left the apartment to pick up more alcohol. They returned to the apartment to drop off the alcohol and planned to leave again immediately to pick up defendants daughter. Duenas got out of the car, leaving the key in the ignition and defendant sitting in the passenger seat, and dropped off the alcohol at Duenass and Tellezs apartment upstairs. As Duenas walked back downstairs, she saw her car leaving. Duenas tried to contact defendant on her cell phone, calling her about five times in a row and throughout the night, but it rolled into voice mail. Duenas did not give defendant permission to take the car. All of Duenass Christmas gifts for her sons and other family members were in the cars trunk. Duenas and Tellez decided not to contact the police that night.
The next morning Duenas and Tellez reported the stolen car to the police, but at the officers insistence, Tellez did most of the talking since he was the cars registered owner. Tellez told the officer the new car had no license plates. Duenas and Tellez then went with Manuel to a tow yard where they saw defendants impounded vehicle (not the car belonging to Duenas). They were hoping to find out whether defendant had been at the tow yard to transfer her belongings from her impounded vehicle to Duenass car, but were told that defendant had not been back yet. Manuel had told Duenas that defendants car had been taken to the tow yard.
In February 2005, a police officer on patrol noticed a blue Chrysler without plates parked in a parking lot of a closed business with a female standing next to the drivers door. The woman saw the officer and quickly entered the drivers door and then pulled out onto Harbor Street. Defendant was stopped and arrested for being in possession of stolen property.
Duenas received a call to pick up her car at the tow yard. The car was not in the same condition as when Duenas had last seen it; there was a large dent in the rear, its custom 20-inch tires and rims were gone, its dashboard had been pulled apart, and the interior was filthy.
DISCUSSION
The Prosecutor Did Not Commit Misconduct
Defendant contends the prosecutor committed misconduct by asserting during his closing argument that the defense had tried to dirty up the victims. Defendant concludes the prosecutors comments were improper because they cast aspersions on defense counsel, impugning his character and integrity.
Toward the beginning of the prosecutors closing argument, he stated: I want to [talk] about the credibility of each of the witnesses, civilian witnesses, that you heard from in this case. [] . . . I characterize them as people that you may not like but that you can believe. [] Oscar [Tellez] and Venessa [Duenas] might not be your kind of people. Venessa might not be somebody that you would want your son to date. And Oscar may not be the brightest bulb in the batch. But can you believe these people? [] This prosecutor submits to you that you can believe them when they tell you their car was taken from them without their consent. [] The defense has worked long and hard in this case to dirty up these victims as much as humanly possible. And perhaps
Defense counsel objected to the comments as improper argument. The court admonished the jury that the decision you make must be based upon the evidence you heard, not by the statements of counsel and argument. Its not evidence in the case. But go by what you heard from the witness stand.
The prosecutor then continued: And perhaps its not too difficult to dirty them up. [] As we heard, Venessa . . . is an exotic dancer who has a healthy social life. And the defense took great pains to point out that she was dating the defendants daughter, and that she worked as an exotic dancer, and she may have had a relationship with the car dealer that she [bought] the Chrysler from, and pretty much at every turn tried to paint her with another guy . . . . But, ladies and gentlemen, those are distractions. And later: The same with Oscar, not really a likable fellow. Again, the defense paints him as unemployed, unemployable, agreeing to have his girlfriend see other people.
Later in his rebuttal argument the prosecutor stated: And then again counsel, trying to dirty up the victims and trying to make them look as bad as possible, suggesting Defense counsel again objected on grounds of improper argument, which the court overruled.
The prosecutor continued: Suggesting some kind of insurance scam or insurance impropriety, you know what? [] Thank God counsels words are not evidence mine or his because there is no evidence before you that there is any kind of insurance impropriety going on. And thats inappropriate to make that
Defense counsel objected to the argument as improper. The court admonished the jurors that the evidence is what you heard from the witness stand, not from the statements of counsel. Thats what you are to go by.
Defendant contends the prosecutors comments suggested to the jury that defense counsel was using underhanded and illegitimate means to obtain an acquittal, impugning not only defense counsels character but the merits of the defense itself. The People counter that the prosecutors argument was a fair comment on the evidence adduced at trial and the logical inferences to be drawn therefrom.
The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Prosecutors are held to an elevated standard of conduct (People v. Hill, supra, 17 Cal.4th at p. 819), higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. (Id. at p. 820.) Accordingly, a prosecutor is subject to limitations on the scope of closing argument and the method of presenting it. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, 571, p. 815.) While a prosecutor may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. (Berger v. United States (1935) 295 U.S. 78, 88.) A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] An attack on the defendants attorney can be [as] 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. (People v. Hill, supra, 17 Cal.4th at p. 832.)
But a prosecuting attorney may make fair comments upon the evidence presented by defense counsel. (People v. Jones (1997) 15 Cal.4th 119, 186, overruled on another ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) And the use of derogatory remarks directed at defense counsel is not necessarily misconduct; a prosecutor may use vernacular [and] figures of speech . . . in presenting in the most persuasive form the contention that the evidence calls for a verdict of guilty. (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, 589, p. 842.) Where a defendant contends the prosecutor impugned defense counsels character and integrity, the defendant must show the remarks were directed against defense counsel personally. (Id. at p. 849.)
Defendant relies on People v. Herring (1993) 20 Cal.App.4th 1066 (Herring) where a Court of Appeal held that prosecutorial misconduct required reversal. There, the prosecutor commented in his final argument: I chose this side and he chose that side. My people are victims. His people are rapists, murderers, robbers, child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth. (Id. at p. 1073.) The court held these comments were clearly improper and misconduct. (Id. at p. 1075.) The prosecutor, with those comments, had inferred that all those accused of crimes whom defense counsel represented are necessarily guilty of heinous crimes, impliedly denigrated the presumption of innocence and the requirement that guilt be proved beyond a reasonable doubt, and inferred that defense counsel suborned perjury. (Ibid.) The court noted, It is improper for the prosecutor to imply that defense counsel has fabricated evidence or to otherwise malign defense counsels character. (Ibid.) The prosecutors comments did not relate to the evidence or inferences to be drawn therefrom. (Ibid.)
Defendant also relies on People v. Bain (1971) 5 Cal.3d 839 (Bain), where our Supreme Court held [t]he unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct. (Id. at p. 847.) There, in the course of trial, the prosecutor asserted before the jury that the defendant and his counsel had fabricated the [defense] story; he stated that he, as a black man, would not be prosecuting a black defendant unless he personally believed the man to be guilty; he attacked the integrity of the defense attorney and the office of the public defender; and he referred repeatedly to racial matters. (Id. at p. 845.)
Here, the prosecutors references to defense counsels efforts to dirty up the victims did not rise to the level of misconduct under either federal or state standards. Viewed in context, the comments were not personal attacks on defense counsel, but were instead a fair rebuttal to doubts defense counsel had tried to cast on the victims credibility. The prosecutors remarks related to the evidence in the case and urged the jurors not to be distracted by defense counsels focus on the victims sex lives and employment or lack thereof. (See People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [no reasonable likelihood jury improperly influenced by prosecutors remarks that defense counsels job is to put up smoke, red herrings].) Contrary to defendants contentions, Herring, supra, 20 Cal.App.4th 1066, and Bain, supra, 5 Cal.3d 839, offer her little assistance. Unlike the defendants in Herring and Bain, defendant here does not claim the prosecutor asserted or implied that her counsel fabricated a defense story or advised her to lie. There was no misconduct.
Substantial Evidence Supported the Courts Finding Defendant Suffered a Prior Conviction for Carjacking
Defendant contends insufficient evidence supports the courts finding she was previously convicted of carjacking because the abstract of judgment for the prior conviction named Alicia Valdez as the perpetrator. Defendant asserts the People failed to introduce testimony from a fingerprint expert or to produce any other evidence that she and Alicia Valdez are the same person. She concludes the court violated her constitutional right to due process by finding she suffered a prior carjacking conviction.
Pursuant to the Three Strikes law ( 667, subds. (d) & (e)), the People alleged defendant suffered prior convictions for robbery and carjacking. After the jury convicted defendant of the current felony, the court tried the prior conviction allegations in a bifurcated proceeding. In support of the allegations, the People introduced into evidence, without objection, a packet of prison records certified by the Department of Corrections and Rehabilitation pursuant to section 969b (the section 969b packet). (Under section 969b, certified prison records are prima facie evidence that a defendant has suffered a conviction and served a prison term for it.) The section 969b packet consisted of: (1) the Department of Corrections and Rehabilitations certification of records for Denise Belmontes, CDC No. W23829; (2) a five-page chronological history for Denise Belmontes, No. W23829; (3) four abstracts of judgment three for Denise Belmontes and one (the carjacking conviction) for Alicia Valdez; (4) three fingerprint cards, each for Denise Belmontes; and (5) a California prison photograph of Belmontes, W23829.
The abstract of judgment for the carjacking conviction (case No. BA100434) identified the defendant as Alicia Valdez, W23829, Probation No. X032968, and indicated she pleaded guilty to the offense and was sentenced to a term of 10 years in state prison. The corresponding fingerprint card for the carjacking conviction (case No. BA100434, the same number as in the abstract of judgment) identified the defendant as Denise Belmontes, W-23829, stated Belmontes had rose tattoos on each arm, and was signed by Belmontes. The other two fingerprint cards in the packet (relating to Belmontess convictions for vehicle theft and in case Nos. CR78132 and A465542) also stated Belmontes had rose tattoos on her arms. All three fingerprint cards specified the same birthdate for Belmontes. The abstract of judgment for Belmontess vehicle theft conviction identified her probation number as X032968, the same number as in the abstract of judgment for Alicia Valdez for carjacking.
Defense counsel argued insufficient evidence supported the carjacking conviction because the relevant documentation referred to Alicia Valdez. The prosecutor countered that the document was part of a certified prison packet directly from the Department of Corrections containing defendants photograph and fingerprints, and also that the charging information specified Valdez as one of defendants aliases. The prosecutor offered to obtain a certified rap sheet from the Department of Justice which would show that Alicia Valdez is [defendants 14th] AKA, but defense counsel objected on grounds of hearsay, no foundation, and no evidence of that. And she is already arrested. The court, having reviewed these documents in their entirety, found true the allegations defendant had suffered prior robbery and carjacking convictions.
At the sentencing hearing, the court exercised its discretion under section 1385 to strike defendants prior conviction for robbery. But the court used the carjacking strike, pursuant to section 667 (d) and (e)(1), to double the term of punishment for defendants current felony conviction for unlawfully taking a vehicle.
A trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction and served a prison term. (People v. Henley (1999) 72 Cal.App.4th 555, 561.) In reviewing a challenge to the sufficiency of the evidence supporting a prior conviction, the appellate court determines whether the finding is supported by substantial evidence, i.e., evidence which is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.)
Defendant relies on several cases where appellate courts concluded insufficient evidence supported a trial courts finding that a defendants prior conviction was a serious felony for purposes of the Three Strikes law. But those cases involved challenges to the substance of a prior conviction, i.e., the nature and circumstances of the underlying conduct (Peoplev. Martinez (2000) 22 Cal.4th 106, 118 (Martinez)), examining, for example, whether the defendant personally used a deadly weapon in the commission of the crime. (See, e.g., Peoplev.Banuelos (2005) 130 Cal.App.4th 601, 605 [evidence insufficient to show defendant personally used a deadly weapon or personally inflicted great bodily injury].) The substance of a prior conviction can only be proved by evidence found in the entire record of the prior conviction and/or certified prison records under section 969b. (Martinez, supra, 22 Cal.4th at pp. 116-118.) The reason for this limitation on proof of the substance of a prior conviction is that the prosecution should not be allowed to relitigate the circumstances of a crime committed years ago and thereby threaten[] the defendant with harm akin to double jeopardy and denial of speedy trial. (Id. at p. 118.) However, these justifications for limiting proof of the substance of a prior conviction do not apply to proof of the matter at issue here, i.e., the identity of the person who served prison terms for the prior convictions. (Ibid.)
Here, the section 969b packet contained substantial evidence showing defendant is the same person as the Alicia Valdez convicted of carjacking. The evidence included the same probation number on the carjacking and vehicle theft abstracts of judgment, the reference to rose tattoos and the same birthdate on all fingerprint cards, defendants signature of Belmontes on the fingerprint card corresponding to the carjacking conviction, and the same CDC prison number on every single document in the section 969b packet. Defendant argues that [w]hile it is true that the abstract of judgment [for the carjacking conviction] contains appellants CDC prison number, it is obvious that the number, which is in handwriting, was not part of the abstract when it was issued. But the prison numbers on various documents in the section 969b packet are variously typed or written (in several different handwritings) as W23829, W-23829, or simply 23829, suggesting that someone did not simply go through the entire packet at one sitting and write defendants prison number on each page. It is unclear when defendants prison number was handwritten on the carjacking abstract of judgment, but we can presume that official duty [was] regularly performed. (Evid. Code 664.) Defendant also contends no other document that is part of the record of conviction shows that Alicia Valdez is [defendants] alias. But that is beside the point. The record adequately shows that defendant is the same person who suffered the carjacking conviction, whether or not Alicia Valdez was an alias she used. Whether the appearance of the name Alicia Valdez on the abstract was a clerical error or accurately reflected an alias used by defendant is of no moment where it is clear defendant is the person who suffered that conviction.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
OLEARY, J.
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[1] All statutory references are to the Penal Code unless otherwise stated.
[2] We state the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We recognize defendant presented contrary testimony.