P. v. Castaneda

Filed 9/13/07 P. v. Castaneda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.

William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.

I. Introduction

A jury convicted defendant of two counts of attempted carjacking. (Pen. Code,  664, 215, subd. (a).)^[1] In a bifurcated court trial, the court found true allegations that defendant suffered two prior serious felony convictions ( 667, subd. (a)), three prior strike convictions ( 667, subds. (c), (e)(2), 1170.12, subd. (c)(2)), and four prison priors ( 667.5, subd. (a)). The court struck one of the prior strike convictions and sentenced defendant to 35 years to life in prison.^[2]

Defendant makes the following contentions on appeal: (1) the evidence was insufficient to convict him of carjacking; (2) he was deprived of his right to confront a prosecution witness; (3) the prosecutor committed prejudicial misconduct, depriving him of a fair trial; and (4) the court erred in allowing a 15-year-old witness to testify about why he was scared to testify. We reject these contentions, and affirm.

II. Summary of Facts

In the afternoon of August 7, 2001, Anabel Gonzales drove to an Albertsons grocery store in her husbands Buick Regal. In the car were Anabels 11-year-old brother, Luis C., and her 14-year-old brother-in-law, Ignacio G. As she turned onto eastbound Alessandro Boulevard, she noticed a white truck with two men inside driving west on Alessandro. The top of the truck was cut off and the back window was missing so that it looked like a convertible. Anabel pointed the truck out to Luis and Ignacio because it looked funny, ugly.

Anabel continued eastbound on Alessandro and pulled into a left turn lane to turn onto northbound Perris Boulevard. She noticed that the unusual white truck had made a U-turn and was now behind her in the left turn lane. After turning onto Perris Boulevard, Anabel turned into a gas station on the corner of Alessandro and Perris, where she bought gas. She did not notice the white truck while she was in the gas station.

Anabel left the gas station and pulled into the adjacent Albertsons parking lot and parked. She noticed the white truck behind her. Before she got out of the car, a man came from the truck, approached the drivers side of the car, and asked Anabel for spare change.^[3] Anabel said she did not have any money, and the man walked away. Before the man approached Anabel, Ignacio saw him ask someone in another car for money.

Anabel then went into Albertsons while Ignacio and Luis remained in the car. Ignacio climbed from the backseat into the drivers seat; Luis was sitting in the front passenger seat. The car keys were in the ignition and the radio or compact disc (CD) player was playing music. Ignacio had a case of CDs in his hand or on his lap. The car windows were down.

The same man who had approached Anabel and asked for money walked up to the drivers side of the car. He lifted up his shirt and showed the boys what appeared to be the handle of a gun sticking out of his waistband, and said, look what I got. He told the boys to get out of the car and not to scream or say anything. The man told Ignacio to get out that way, referring to the passenger side of the car.

The car alarm went off. Luis said that the alarm went off when he opened the car door. Ignacio initially told a police officer that the alarm sounded when defendant opened the drivers door. At trial, however, the boys testified that they did not see the man touch, reach for, or get into the car. Ignacio saw the man run to the truck where another man was waiting. The men in the truck drove away.

Ignacio took the keys, locked the car, and ran into the store with Luis.^[4] They found Anabel and told her that they almost got carjacked. They contacted a security guard, who called police. The boys told the police officer that the man lifted his shirt and showed them a gun. They also told the officer that the man said to them, dont scream or say anything and [g]et out of the car.

At the time of the crime, defendant owned a truck matching Anabels description of the white truck. Anabel identified the defendant in a photo lineup as the person who approached her and asked for money. Luis and Ignacio also identified defendant in photo lineups shortly after the incident. At trial, Luis initially testified that he did not see the person in the courtroom who asked Anabel for money. Later, he identified defendant as the man who showed the gun. Ignacio identified defendant in court as the man who showed the gun. Both boys testified that the man who asked Anabel for money was the same man who came back to the car and showed the gun.

A few days before trial, the prosecutor met separately with Anabel, Ignacio, and Luis. During his interview with Ignacio, Ignacio said that the man told him to leave the keys in the ignition. He did not mention anything about the man saying to get out of the car on any particular side. Luis did not remember the man saying anything about the car keys.

III. Analysis

A. Sufficiency of the Evidence of Attempted Carjacking

Defendant contends that the evidence was insufficient to convict him of attempted carjacking. In reviewing a claim that a verdict is without sufficient evidentiary support, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence upon which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) To be substantial, evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. (Id. at p. 576.) We also presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (Ibid.)

Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. ( 215, subd. (a), see People v. Lopez (2003) 31 Cal.4th 1051, 1055.)

An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission. [Citations.] Commission of an element of the underlying crime other than formation of intent to do it is not necessary. [Citation.] Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.] [Citation.] (People v. Jones (1999) 75 Cal.App.4th 616, 627.)

Defendant contends the evidence is insufficient to establish that he had the specific intent to take Anabels car. We disagree.

As Anabel and the two boys drove toward Albertsons, defendants truck was heading in the opposite direction. It made a U-turn and followed Anabels car down Alessandro Boulevard and onto Perris Boulevard. The truck remained out of Anabels sight while she filled the car with gas, but apparently stayed close by, as it reappeared a few minutes later behind Anabels car in the Albertsons parking lot. Defendant then approached the car and asked Anabel for spare change. When Anabel went into the store, defendant returned, showed the children what appeared to be a gun, and told them to get out of the car on the passenger side without talking or screaming. Notably, he did not ask Ignacio for his case of CDs or for anything else in the car. He fled when the car alarm went off. Even if no weight is given to Ignacios belated recollection that the man said to leave the keys in the car, the evidence that defendant walked up to the drivers side door, showed a gun to the boys, and told them to get out of the car is reasonable, credible, and of solid value. (People v. Johnson, supra, 26 Cal.3d at p. 576.) Reasonable jurors could have deduced from such evidence that defendant intended to take the car. Moreover, the evidence that defendant followed Anabels car down Alessandro Boulevard and into the parking lot further suggests an intent to take the car, and not merely an intent to frighten the occupants or to take property from inside the car. Based upon our review of the entire record, we hold that the evidence was sufficient to support the attempted carjacking conviction.

Defendant points to evidence that suggests a lack of the requisite intent. For example, there is arguably no substantial evidence that he ever touched the car. Touching the car, however, is not required to establish the attempt to carjack if other evidence shows acts beyond mere preparation. Moreover, the failure to touch the car appears to be due to his flight upon the sounding of the car alarm, not because of any lack of intent.

Defendant also argues that the fact that he first approached the car to ask Anabel for spare change tends to undercut the inference that he had an intent to carjack the vehicle. If he intended to steal the car, he argues, he would never have presented his face to the driver of the car just before doing so. Nor would he have asked anyone else in the parking lot for change, as Ignacio said he did. Alternatively, he argues, if he intended to carjack the car, the initial approach would have been a perfect opportunity to carjack the driver of the car. Yet he did not do so at that time. It may well be unwise for a would-be carjacker to present himself to the driver before stealing the car if he does not intend to take the car at that moment. However, the fact that he approached Anabel and walked away without taking the car is not necessarily inconsistent with an intent to steal the car at some point.^[5] Such alternative explanations for defendants behavior are properly presented to a jury. They do not, however, preclude the possibility that reasonable jurors could reject such explanations.

B. Limitations on Cross-examination of Ignacio

Defendant contends the court improperly limited his cross-examination of Ignacio, thereby depriving him of his right of confrontation under the Sixth Amendment. We disagree.

1. Background

On the Friday preceding the start of trial, the prosecutor interviewed Anabel, Luis, and Ignacio. No investigator or other witness was present during these interviews. During the interview with Ignacio, Ignacio recalled that defendant told him to leave the keys in the car. The prosecutor made notes of his interview and turned his notes over to the defense. This statement about leaving the keys in the car does not appear in the police reports and did not come out at the preliminary hearing. Luis stated in his interview with the prosecutor that he did not remember defendant making the statement.

Prior to the presentation of evidence, defendant moved to recuse the prosecutor or, alternatively, to exclude the testimony of the interviewed witnesses or exclude the statement about leaving the keys in the car. The court initially denied these motions, without prejudice, and gave the defense an opportunity to interview Ignacio. According to defense counsel, Ignacios answers during his interview werent entirely consistent. Initially, Ignacio did not mention that defendant made any statement about leaving the keys. Eventually, Ignacio said that he thinks the guy may have said it. Ignacio also said that he assumed that the man said it because how else could the guy take the car.

The court ultimately denied defendants motions, and made the following ruling: Should the witness say anything that is inconsistent with what the witness said in his interview with the prosecutor on Friday, and the defense wishes to impeach that witness with a prior inconsistent statement, then it is my understanding that the People will stipulate that the witness said A, B, and C in that interview without the need to call the prosecutor as a witness. [] If, on the other hand, the witness says something inconsistent with that interview on Friday and the People wish to impeach the witness with an inconsistent statement he said on Friday, they cant. Because the only way they could do that would be for the prosecutor to become a witness. And thats not going to happen.

On direct examination during trial, Ignacio initially testified that defendant said, Dont scream. Dont say anything. Just get out [of] the car. The prosecutor then asked Ignacio if he recalled anything else the man said. Ignacio responded, Im not too sure, but I think that he said, leave the keys in the ignition. When asked when defendant said this, Ignacio testified, I think he told me when to get out [of] the car, he told me to leave the keys in there.

Ignacio was questioned about the statement on cross-examination. Defense counsel elicited from Ignacio that the first several times he was asked on direct examination what the man had said, Ignacio did not mention the statement about leaving the keys; and that he did not mention it because, in fact, he did not remember that statement being made. Defense counsel then asked, [A]s you even sit here now you dont really remember whether he said that or not. You just think he might have? Ignacio said, Yeah. Ignacio further agreed with defense counsels statement that he kind of assume[d] that he might have said that. Defense counsel further elicited from Ignacio that he did not tell the officer at the scene of the crime about the newly recalled statement; nor did he tell anyone of this statement during the four years between the incident and his recent interview with the prosecutor.

Defense counsel then questioned Ignacio about the interview with the prosecutor:

Q. . . . Now, during the course of that interview [the prosecutor] was inquiring of you as to whether or not youd heard anything from the man that had to do with the keys in the car; is that correct? [] . . . []

A. I think he did.

Q. . . . And at that point somewhere along the line you told [the prosecutor] that you werent sure, but you thought maybe he could have said something about leaving the keys; is that right?

A. Yeah.

Q. Okay. Did [the prosecutor] explain to you during that interview any importance to that question and that answer relating to keys? Did he say, gee, thats how we intend to prove this or thats how we intend to prove that or we need to know because of this or that or anything along those lines? Did he explain why he was asking that?

A. I dont remember. [] . . . []

Q. . . . [D]id [the prosecutor] say to you something about he was trying to figure out or trying to determine what evidence you might have relating to that what the guys intentions were?

A. Yeah.

Q. And thats when he asked you something about did he say anything about the keys; is that right?

At this point, the court called for a sidebar conference and excused the jury. The court spoke to defense counsel: [T]heres a very fine line between asking this witness about this past interview so that we might gain insight into what this witness remembers and when he remembered, which is certainly appropriate; and questions that are more designed to bring up the subject of the interviewers motivations for asking particular questions. [] And given that the interviewer is the prosecutor in this case, thats totally inappropriate. And Im about to order you to completely stop unless you think you can tell me right now theres something in particular that you still want to go into.

Defense counsel explained that his questions were based upon the assumption that Ignacios recent recollection is not a true fact. . . . Its an innocent misrecollection on the part of the witness that may have been the subject of unwitting suggestion on the part of the prosecutor during the interview. He further stated: As I indicated to the Court, I will move off if the Court thinks I should. The reason why I was asking the question, which I think is appropriate, is not so much the prosecutors motive, but whether or not the prosecutor in the course of the interview said something to the witness to the effect of, []look, we need to know this because such and such,[] which has a tendency to put the idea in the witnesss mind. Thats what I was trying to ask. Not[,] []whats your speculation of the prosecutors motive,[] but[, ]did the prosecutor say something to you to that effect during the course of the interview[,] which I think is relevant. But its not so critical that I have to keep pursing it in the face of the Courts comment. The court responded, Good. Not going to pursue it.

2. Analysis

The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings [citation], means more than being allowed to confront the witness physically. [Citation.] Indeed, [t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. [Citation.] Of particular relevance here, [we] have recognized that the exposure of a witness motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. [Citation.] It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsels inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. And . . . , the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.] (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [106 S.Ct. 1431, 89 L.Ed.2d 674] (Van Arsdall); accord People v. Frye (1998) 18 Cal.4th 894, 946.)

Here, defense counsel sought to attack Ignacios credibility and to show that defendant never told Ignacio to leave the keys in the car by showing that Ignacios recollection that defendant told him to leave the keys in the car was solely the product of the prosecutors suggestive questions. Up to the point where his line of questioning was interrupted by the court, he had elicited from Ignacio that he [doesnt] really remember whether [defendant] said that or not, and that he just kind of assume[d] that he might have said that. He further established that Ignacio did not tell the officer at the scene of the crime of defendants statement about the keys, even though Ignacio had been as complete and honest as he could have been with the officer. Indeed, he did not tell anyone of this statement in the four years since the crime until his meeting with the prosecutor a few days before trial began. In addition, defense counsel placed Ignacios recollection in further doubt by introducing a stipulation that Luis did not remember the man saying anything about the car keys.

Relative to defense counsels goal of establishing that Ignacios recollection was really the result of the prosecutors power of suggestion, Ignacio said that he thought the prosecutor asked him during the interview if the man who approached the car said something about the keys. Finally, the prosecutor told Ignacio that he was trying to determine what evidence Ignacio might have relating to the mans intentions.

As a result of defense counsels cross-examination, Ignacios testimony that defendant said to leave the keys in the car was placed substantially in doubt, with the distinct inference that the testimony was a result of suggestive and/or leading questions by the prosecutor. Indeed, the prosecutor made no attempt to rehabilitate him on this point. While such questioning may have produced one more nail in the coffin of Ignacios credibility on this point, it does not appear to us that it would have any meaningful effect on the evidentiary weight of his testimony. Further questioning on the point was thus only marginally relevant, and therefore within the wide latitude afforded trial courts. (See Van Arsdall, supra, 475 U.S. 673, 679.) We thus find no violation of defendants constitutional right of confrontation.

C. Prosecutorial Misconduct

Defendant contends that the prosecutor engaged in a pattern of misconduct designed to persuade the jury to convict on the basis of sympathy for the child victims and anger toward the defendant. We find no reversible misconduct.

A prosecutors conduct during trial may amount to a violation of either the United States Constitution, California law, or both. Misconduct by the prosecutor violates the federal Constitution only if it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Harris (1989) 47 Cal.3d 1047, 1084, citing Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [94 S.Ct. 1868, 40 L.Ed.2d 431].) Conduct by a prosecutor that does not amount to a denial of due process will constitute prosecutorial misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) If the conduct amounts to prosecutorial misconduct under state law, we will reverse the conviction only if it is reasonably probable that a more favorable result for defendant would have been reached absent the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant relies upon the following excerpt from the prosecutors closing argument: I represent the People of the State of California. And the case is very important to us. Defendant contends that this statement is an example of how the prosecutor played on the jurys sympathy for [Luis] and their related anger at [defendant], and exhorted them to convict [defendant] because of what he did to those defenseless, innocent children.

When the statement is read in the context in which it was made, it does not appear to be improper. The statement occurs at the outset of the prosecutors closing argument: [I] [w]ant to begin by thanking all of you for your attention to this case. I know youve all been very attentive and listened to the evidence weve presented. And I know both sides appreciate that. [] I represent the People of the State of California. And the case is very important to us. And I know its also important to the defense. So we appreciate the attention youve given it. And I know youll also be diligent and also that you will follow your duties seriously when you go back and deliberate and youll follow the Courts instructions. (Italics added.) Viewed in context, the prosecutor appears to be merely informing the jury of the seriousness of the task before them: The People and the defense both believe this case is important, and you, the jury, should too. The statement does not constitute misconduct.

Defendant also relies upon the prosecutors reference to the fact that Luis was scared during his testimony: Didnt he act like he was scared, first of all? And he even admitted that in some ways he was scared. Again, viewed in context, the statement does not appear to be improper. The prosecutor was merely explaining why Luis did not initially identify the defendant in court: Now, I will say Luis the first time he looked around the courtroom he did not identify the defendant. But did you notice how quickly he looked around the courtroom? Didnt he act like he was scared, first of all? And he even admitted that in some ways he was scared. And when I asked him to look around the courtroom, how much time did he spend looking over in the direction of the defendant? Hardly at all. Hardly at all. He briefly scanned through you folks, the jury. Looked over, didnt even look like he made eye contact at all with the defendant. [] It was only when I asked him to look carefully in the courtroom that he then recognized the defendant and goes, yeah, thats him. (Italics added.) In this context, the italicized statement is not misconduct.

Moreover, defense counsel did not object to these statements or, with one possible exception, any of the other statements relied upon by defendant to show a pattern of misconduct.^[6] Nor did he ever ask that the jury be admonished with respect to any of the alleged misconduct. Generally, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 820.) Defendant contends that any objection would have been futile. Although the futility of an objection will excuse the failure to make an objection (see ibid.), there is no basis for applying that exception here. Accordingly, even if any of the statements relied upon by defendant constituted misconduct (either in isolation or collectively), the failure to object or request an admonishment forfeited the claim on appeal.

The one statement relied upon by defendant on appeal to which an objection was made involved the prosecutors use of a hypothetical. To illustrate the nature of an attempted crime as an act that goes beyond mere preparation, the prosecutor used a hypothetical attempt to rob a bank: Did this crime go beyond mere planning? Yes. Let me give you an example of that. Lets say someone wants to go rob a bank. And lets say they go buy some gloves. And . . . lets say they prepare a note that theyre going to give the teller: Give me all your money or Im going to start shooting. And then they figure out what car theyre going to use to get to the bank, maybe solicit a friend to help be the getaway driver, whatever. These are steps that would be part of the planning process, preparation. [] But once the guy goes in the bank with the note and lets say he goes up to the counter and begins to hand it over to the teller, and lets say while hes doing that he sees a uniformed officer come into the bank just at that moment and suddenly in his wisdom takes the note back and leaves the bank, if all you had was him writing the note in advance, getting the gloves, maybe other things to use during the crime, that would be just mere preparation and planning. But once he actually goes in there to begin the crime and his intent is clearly to go rob the bank . . . . At this point, defense counsel objected, saying, I think thats not an accurate statement. The court dismissed the objection, stating, Hes merely discussing a hypothetical.

The prosecutor then continued: And he starts to hand the note over, but then what interrupted that crime? He plans to do a robbery. Hes taken the steps necessary to do the robbery. The only thing that interrupted him is seeing a police officer in the bank. So he stops what hes doing and he doesnt get any money. He leaves the bank without any money. Does that mean he shouldnt be guilty of a crime? No. (Italics added.) Defendant quotes only the italicized sentence, and contends that it constituted misconduct because it suggests that defendant should be guilty of a crime.

Even if the objection asserted below encompasses the subsequent statement defendant is concerned about on appeal, his argument is not based upon the same ground as the objection asserted below. Moreover, even if the claim is preserved for appeal, we can find no misconduct in the use of the hypothetical.

Our review of the record reveals no pattern of misconduct under either the United States Constitution or California law.

D. Testimony of Luis

During trial, Luis was asked if he saw the perpetrator in court, and Luis said, No. Later, the prosecutor asked the following: Im going to ask you again whether or notwell, Im going to ask you in terms of the guy you saw with the gun, whether you see him in the courtroom. This time I want you to take your time because youlast time I asked you, you looked really quick. [] . . . [] . . . Do you see the man who had the gun? Do you see him in the courtroom? Luis pointed out the defendant.

On cross-examination, defense counsel asked Luis about these inconsistent responses and the basis for his belated identification of the defendant.

On redirect, the prosecutor asked Luis if he was scared. Luis said, Kind of, but not really. The prosecutor asked why he was kind of scared. Over defense objection, Luis stated, I dont know. Itjust because I think hes got to go back to jail or something, and, Because he might not go back to jail or something.

Defendant argues that this evidence was irrelevant because even if the fact that he was frightened was relevant to explain why he was unable to initially pick defendant out as the perpetrator, the reasons for his fear were not material to any issue in the case. Moreover, defendant argues, having the child testify as to his fear engendered sympathy for the victims and anger at the defendant.

We review evidentiary rulings for an abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 534.) There is no such abuse here. The fact that Luis was scared during his testimony was relevant to understanding why he did not identify defendant the first time he was asked. When Luis responded that he was [k]ind of, but not really scared, the prosecutor was properly permitted to inquire further to elicit from Luis information about the nature and source of whatever fear he was kind of experiencing. The court did not err in allowing the question.

IV. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Defendant also pled guilty to one count of possession of heroin. (Health & Saf. Code,  11350.) He was sentenced to two years in prison, to run concurrently with the longer sentence.

^[3] Anabels testimony regarding the location of the truck in the parking lot was somewhat uncertain and equivocal. When asked if she saw the truck any time after she bought gas, she answered, When heno, I didnt. When he was parked in back of me. The prosecutor then asked, You did see it parked in back of you? To which Anabel responded, I dont remember actually. Later, when asked where the truck was located when she thought she might have seen defendant in the passenger side of the truck, Anabel stated, I think he was in back of me like when I was parked. Thats when I noticed, but it was four years ago. I cant remember. On cross-examination, she agreed with the defense counsels statement that the man who asked her for money came from the white truck that was parked behind her at that time.

^[4] Ignacio gave conflicting testimony on this point. At one point he testified that he left the keys in the ignition and did not take them with him. Later, he said that he locked the car, took the keys, and ran into the store. Anabel testified that Ignacio had the keys in his hand.

^[5] It is unlikely, of course, that defendant followed Anabels car to Albertsons in order to ask Anabel for spare change. The request for spare change may have simply been a ruse to allow him to get a closer look at the car before deciding whether to steal it.

^[6] These other statements are: (1) This case is more about two kids and what happened to them than just about a car. . . . This was nothing short than a crime of violence, taking advantage of two people that were defenseless; (2) The safety of passengers is just as important as the safety of a driver; and (3) What he did was wrong. How dare he commit that kind of violence in this county against innocent victims, totally innocent. They didnt deserve that. He needs to be held accountable for that. . . .