P. v. Duarte

Filed 7/27/06 P. v. Duarte CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Eric Cresencio Duarte was convicted after jury trial of four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),[1] and one count each of false imprisonment (§§ 236, 237), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and possession of ammunition by a felon (§ 12316, subd. (b)). The jury also found true allegations that defendant personally used a firearm during the commission of the robberies (§ 12022.53, subd. (b)) and the false imprisonment (§ 12022.5, subd. (a)). In a bifurcated proceeding, defendant admitted allegations that he had two prior serious felony convictions (§ 667, subd. (a)) and three prior strikes (§ 1170.12). The trial court sentenced defendant to 150 years to life, consecutive to 73 years, four months.

On appeal defendant argues that (1) the trial court improperly denied his motion to suppress evidence; (2) the trial court prejudicially erred in admitting other crimes evidence; (3) the trial court erroneously denied his Marsden[2] motions; (4) he was denied effective assistance of counsel; (5) the trial court erroneously denied his Faretta[3] motions; (6) loss of tapes of his statements to police compel reversal of the judgment; (7) the prosecutor committed prejudicial misconduct; and (8) the matter must be remanded for resentencing. The Attorney General concedes that a sentencing error did occur. We find that the sentence must be modified, but that no other reversible error occurred. Accordingly, we will affirm the judgment as so modified.

Defendant has also filed two separate petitions for a writ of habeas corpus, which we ordered considered with this appeal. We have disposed of the petitions by separate order filed this day. (See Cal. Rules of Court, rule 24(b)(4).)

BACKGROUND

Defendant was charged by information filed April 8, 2004, with four counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 1 – 4), five counts of false imprisonment (§§ 236, 237; counts 5 – 9), and one count each of possession of a firearm by a felon (§ 12021, subd. (a)(1); count 10), possession of ammunition by a felon (§ 12316, subd. (b); count 11) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 12). The information further alleged that defendant personally used a firearm in the commission of each of the robberies (§ 12022.53, subd. (b)) and the false imprisonments (§ 12022.5, subd. (a)), and that he had two prior serious felony convictions (§ 667, subd. (a)) and three prior strikes (§ 1170.12).

On June 15, 2004, defendant filed a motion to suppress evidence under section 1538.5. Following a hearing on July 2, 2004, the court denied the motion.

On July 21, 2004, defendant requested that his appointed counsel be relieved and that another attorney be appointed to represent him. Following a hearing the court denied defendant's request. On August 18, 2004, defendant filed a written motion for substitution of counsel. On August 26, 2004, the matter was taken off calendar.

Jury trial began on September 9, 2004. On the morning of September 13, 2004, outside the presence of the prospective jurors, defendant admitted, for purposes of counts 10 and 11 only, the two prior serious felony allegations. That afternoon a jury was empanelled to try the case. On September 15, 2004, the court granted the prosecutor's request to admit evidence of defendant's two 1994 bank robberies to show identity and intent. The court also ruled that, should defendant testify, all his prior felony convictions could be admitted for impeachment. On September 20, 2004, the first day of testimony, defendant made a motion for substitution of counsel. Following a hearing the court denied the motion. On the morning of September 28, 2004, the last day the prosecution presented its case, defendant made another motion for substitution of counsel. After a hearing the court denied the motion. After the prosecutor returned to the courtroom, the court heard and denied defendant's request to represent himself through the remainder of the trial.

The prosecution's case

In March 2003, Ralph Baca and Theresa Baca[4] were married but separated, and Theresa was dating defendant. Ralph visited Theresa at her Foxdale Loop apartment periodically to help her out, and would spend the night in the downstairs living room. He met defendant during that time, and the two of them were friendly with each other. Defendant would spend the night with Theresa in her upstairs bedroom two or three times a week.

Defendant was unemployed and lived at his mother's Aida Street house with her, his sister, and his son. He slept in the living room, but he had access to all areas of the house except his mother's room. He kept his clothes in a hall closet. Ralph and Theresa picked defendant up at, or took him back to, his mother's house once or twice, but his mother usually drove him.

Sometime in March 2003, defendant used methamphetamine with Juanita Poteete and asked her to make arrangements for him to get a gun. She introduced defendant to her brother Jerry Chacon for that purpose.

On March 27, 2003, Theresa, Ralph, and defendant all spent the night at Theresa's apartment and used methamphetamine. Ralph dropped defendant off at his mother's house around 7:00 a.m. the next day.

Around 2:45 p.m. on March 28, 2003, a man wearing a blue jumpsuit with a blue hooded sweater, having a plastic bag covering his face, and holding a gray revolver, put a blue milk crate on the deposit slip table in the Wells Fargo Bank on San Felipe Road in San Jose. The man yelled, â€