P. v. Casas

Filed 7/26/07 P. v. Casas CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Dewey Lawes Falcone, Judge. Affirmed.

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

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Rudy Casas was convicted of two counts of robbery, with true findings on allegations that he had suffered two prior serious felonies that also qualified as strikes and served one prior prison term. (Pen. Code, 211, 667, subds. (a), (b)-(i), 667.5, subd. (b).) He was sentenced to state prison for a term of 60 years to life. Casas appeals, challenging the sufficiency of the evidence as to one of the robbery counts and contending there were instructional and evidentiary errors. We affirm.

FACTS

Casas and Jimmy Aguilera drove to a Downey liquor store. Casas, toy gun in hand and duct tape under his eyes to cover his tattoos, entered the store with Aguilera. Casas pointed his gun at Anil Halak (the owner of the liquor store, who was behind the counter), jumped over the counter, and demanded money. Halak said it was in the cash register and opened it, then was bound hand and foot with duct tape and left on the floor behind the counter. The robbers took about $600.

While Casas was grabbing some more stuff, Joseph Cummings (a regular customer) entered the store. Aguilera moved real close to Cummings and told him to stay where he was. Cummings, who did not know . . . what was going on, complied. Aguilera removed $4 plus some change and Cummingss car keys from Cummingss pocket. The culprits then fled to their car, discarding Cummingss keys on the way. Cummings called the police.

A witness (Amanda Mall) saw the men running to the car and wrote down its license number -- which led the police to Aguileras girlfriend and, ultimately, to Aguilera. Aguilera confessed and identified Casas as the other robber. A few days later, Halak selected Casas from a photo array (he was 70 percent certain that Casas was the gunman); about a month later, Halak selected Casas from a live lineup (this time he was positive that Casas was the gunman).

At trial, the People presented evidence of the facts summarized above. Both victims identified Casas as the gunman, and Cummings identified Aguilera (who testified for the prosecution) as the one who had gone through his pockets. Casas was convicted as noted at the outset.

DISCUSSION

I.

Casas contends there is insufficient evidence to support his count 2 conviction (the robbery of Cummings) because, he claims, there is (A) no evidence that the taking was accompanied by means of force or fear, and (B) no evidence that Casas aided and abetted Aguileras taking from Cummings. We disagree.

A.

Cummings testified that, when he entered the store, Aguilera stepped real close to him and told him to stay where he was, grabbed ahold of [his] pocket, stuck his hand in Cummingss pocket and took his keys and money, and that these items were forcefully taken from him. Aguilera testified that he took the keys and money from Cummingss pockets. These facts are sufficient to establish the requisite force or fear. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [a rather polite tap on the shoulder is sufficient force], disapproved on another ground in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3; People v. Davison (1995) 32 Cal.App.4th 206, 216-217 [an order to stand back imparts sufficient fear by intimidation].) Accordingly, substantial evidence supports Casass conviction of robbery. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Akins (1997) 56 Cal.App.4th 331, 336.)

Because a robbery requires either force or fear, not both ( 211), no more was required.

B.

At trial, the prosecutor argued that Casas was guilty of the Cummings robbery as Aguileras aider and abettor because the Cummings robbery was a natural and probable consequence of robbing the liquor store. (People v. Cervantes (2001) 26 Cal.4th 860, 871; People v. Price (1991) 1 Cal.4th 324, 442.) This theory is supported by substantial evidence. Aguilera testified that the robbery was Casass idea, that Casas brought the gun, and that Casas selected the liquor store. The robberies occurred around 1:30 in the afternoon, a time when it was probable (and thus foreseeable) that other customers would enter the store (or could already have been there when the robbers entered). No more is required to support Casass conviction of the Cummings robbery. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

II.

Casas contends the trial court should have sua sponte instructed the jury on theft as a lesser included offense to the Cummings robbery. We disagree.

When personal property is taken from a person against his will but without force or fear, the crime is not robbery but the lesser included offense of theft. (People v. Webster (1991) 54 Cal.3d 411, 443.) But a trial court is not required to instruct on the lesser offense of theft where, as here, there is no substantial evidence to support a conclusion that the crime was theft, not robbery. (People v. Koontz (2002) 27 Cal.4th 1041, 1085; People v. Breverman (1998) 19 Cal.4th 142, 162.) Because the evidence of force described in Part I, ante, was both substantial and uncontroverted, there was no sua sponte duty to instruct the jury about theft in this case. (People v. Garcia, supra, 45 Cal.App.4th at pp. 1244-1246.)

III.

Casas contends the standard jury instructions regarding eyewitness identifications (CALJIC No. 2.92; CALCRIM No. 315) misstate the law because they are inconsistent with a consensus of [recent] scientific opinion on the subject of reliability. He claims he was denied a fair trial because the instruction prevented the jury from considering constitutionally relevant evidence. We disagree.

First, the issue was waived by Casass failure to object to CALJIC No. 2.92. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Given the nature of the issue raised on this appeal -- reliance on a body of scientific opinion -- the absence of a record establishing those opinions is fatal to Casass claim.

Second and more importantly, CALJIC No. 2.92 has been approved by our Supreme Court. (People v. Wright (1988) 45 Cal.3d 1126, 1141-1144; People v. Johnson (1992) 3 Cal.4th 1183, 1230-1234.) Although Wright and Johnson left room for a defendant to propose modifications to the instruction based on the particular circumstances of any given case, no such modifications were requested here.

Third, any error would be harmless under either standard of review. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.) It wasnt only the victims who identified Casas -- it was his accomplice, Aguilera.

IV.

Casas contends the pretrial identification procedures were unduly suggestive. More specifically, he complains that the entire robbery lasted no more than two minutes, and that Halaks uncertainty at the time of the photographic lineup was erased by his subsequent viewing of Casas at a live lineup, at the preliminary hearing, and at trial. We disagree.

First, there is no authority for Casass assertion that subsequent identifications should not be allowed because they alter the strength or weakness of an earlier identification.

Second, Casass assertion that the lineups were prepared with particular suspects in mind suggests it should have been otherwise. Had the other men in the lineups not been physically similar to Casas, he would have complained that he stood out like a sore thumb. In any event, we have examined the photographic array and do not find it unduly suggestive.

Third, we reject Casass contention that the photo lineup was unfair because his picture was placed in the No. 2 position, the most frequently selected position (there are six pictures, two rows of three each; Casass picture is in the middle of the top row.) The study described in Casass opening brief (G. L. Wells, What Do We Know About Eyewitness Identification? (1993) 48 American Psychologist 553-571) is interesting but irrelevant in light of (A) Casass failure to establish a factual record at trial and (B) his accomplices testimony that Casas was, indeed, the armed robber.

V.

For the reasons stated above, we summarily reject Casass contention that the eyewitness identifications were too unreliable to connect him to the robberies and, therefore, insufficient to corroborate his accomplices testimony. As we have explained, there was nothing unreliable about the eyewitnesss identifications.

VI.

Casas contends trial counsel was ineffective because (1) he did not move to suppress the eyewitness identifications, (2) he did not present an expert witness to testify about eyewitness identifications, (3) he did not request pinpoint cautionary instructions, and (4) he did not object to CALJIC No. 2.92. For the reasons already stated -- and because the identifications were valid and not subject to suppression, and an experts testimony could not reasonably have affected the outcome -- this claim too lacks merit. Without a showing of prejudice, Casas cannot prevail on this claim. (People v. Freeman (1994) 8 Cal.4th 450, 484; Strickland v. Washington (1984) 466 U.S. 668, 684.)

VII.

When Aguilera confessed, he identified Casas as Boxer from the White Fence gang. For this reason, the trial court (finding the evidence relevant to explain how Casas was identified as the robber) allowed the investigating detective to testify that after Aguilera had identified Casas as Boxer and said they were both members of the same gang, the officer looked up Boxer in the gang database, found Casass name, and used his photograph in the lineup. Casas claims the trial court should not have admitted this evidence. We disagree.

The trial court admitted the evidence in an exercise of its discretion under Evidence Code section 352, finding its probative value exceeded its prejudicial effect. There is nothing arbitrary or patently absurd about that decision, and thus no basis for a finding of error. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138; People v. Cudjo (1993) 6 Cal.4th 585, 609; People v. Jordan (1986) 42 Cal.3d 308, 316.) As gang evidence goes, there was nothing particularly prejudicial about this snippet, particularly since Aguilera testified without objection that he and Casas were members of the same gang.

VIII.

We summarily reject Casass contention that the evidence did not warrant a flight instruction (CALJIC No. 2.52.) The victims testified that Casas fled with the loot. The witness who took down the license number saw Casas run from the store and shove a number of items into the car. His flight was more than the slight movement of loot that satisfies the asportation requirement for robbery and, as such, was not part of the robberies, but was evidence of consciousness of guilt. (People v. Navarette (2003) 30 Cal.4th 458, 502; People v. Vasquez (1979) 94 Cal.App.3d 42, 45.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.