Filed 7/7/17 P. v. Marcos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT IGNACIO MARCOS,

Defendant and Appellant.


E065311

(Super.Ct.No. FWV1404180)

OPINION


APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Steven A. Brody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Alana C. Butler, Warren J. Williams, and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Robert Ignacio Marcos was looking for his wife; he believed that victim Nicanor Hernandez Duran knew where she was. Defendant therefore made Duran get in his car and guide him to where his wife was. Meanwhile, defendant punched Duran repeatedly; defendant also took his identification cards and seven dollars in cash. When Duran could not find the location, defendant took Duran back to his own home and tied him up overnight before making him try again in the morning.
After a jury trial, defendant was found guilty of second degree robbery (Pen. Code, § 211); not guilty of simple kidnapping (Pen. Code, § 207, subd. (a)), but guilty of the lesser included offense of felony false imprisonment (Pen. Code, §§ 236, 237, subd. (a)); and not guilty of making a criminal threat. (Pen. Code, § 422, subd. (a).) He was sentenced to a total of three years in prison, along with the usual fines, fees, and miscellaneous sentencing orders.
Defendant now contends that the trial court erred by:
1. Admitting evidence that defendant’s wife was at a domestic violence shelter.
2. Denying defendant’s motion for a mistrial after a witness revealed that defendant had been in jail.
3. Imposing separate and unstayed sentences for both robbery and false imprisonment.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Victim Duran lived in a trailer in Bloomington. He made a living selling corn. He first met defendant’s wife, Maria Salvador, around the beginning of September 2014, when she bought some corn from him. He showed her how to sell her home-made tamales. She did not have a car, so three days a week, he would pick her and her children up at her home, drop the children off at school, and take her to a swap meet where she sold tamales. On one occasion, he saw defendant at her house.
On September 19, 2014, defendant’s wife asked Duran to pick up her and her children and take them to San Bernardino. When he did so, he noticed that she had a black eye. He took her to the police station. He then dropped her off at a gas station, and “the shelter came to pick her up.” He knew what the shelter looked like and generally where it was, because she had pointed out the building to him from a distance.
On September 24, 2014, around 10:00 p.m., Duran was sitting outside behind his trailer when a car pulled up and stopped. Defendant and another man got out and went into the trailer. Duran looked inside and saw defendant rifling through his medications and Social Security documents. Defendant had a laser pointer that he was using as a flashlight.
Duran asked what they were doing there and told them to get out. They came outside. Duran took out his cell phone to call the police, but defendant grabbed it and broke it in half.
Defendant asked where his wife was. Duran said he did not know. Defendant said “[he] did know . . . [a]nd . . . if [he] didn’t tell[] them they were going to kill [him].” Defendant then punched him, with a closed fist, on the face, chest, and back some 10 or 20 times. The “other guy” hit him five times in the head. When he fell to the ground, they kicked him ten times in the back.
Finally, Duran told them that defendant’s wife was in a shelter in San Bernardino. Defendant ordered Duran to take them there. Duran offered to get into his own car and lead them there, but they forced him into their car. Defendant kept hitting Duran “the whole way.”
They drove for about 30 minutes, then stopped at an empty lot. They took Duran out and started punching and kicking him again. Defendant said “he was going to kill [Duran] because [Duran] was . . . involved with his wife.”
They then said “they were going to take [him] somewhere else and they were going to kill [him.]” They drove for 30 or 40 minutes. During the drive, defendant took Duran’s driver’s license, his green card, and seven dollars in cash. Defendant said they were going to kill someone, then frame Duran for the murder by putting his identification cards in the murder victim’s pocket.
They stopped at a second empty lot. Once again, they took Duran out and punched and kicked him. They said again that they were going to kill him. He replied that, if they killed him, they would never know where defendant’s wife was.
They then drove around looking for the shelter, but Duran could not find it. His vision became impaired whenever he had high blood pressure. He told defendant he “couldn’t show him where the shelter was at night but [he] could show him in the morning[.]” The other man got a phone call; after that, both he and defendant seemed to calm down.
They drove to defendant’s home. Defendant took Duran into a back room, sat him in a chair, and tied him up with an electrical cord. The other man left. Defendant stayed in the room, had a couple of beers, then fell asleep.
Around 5:00 a.m., defendant untied Duran; he explained that the other people in the house were about to get up, and he ordered Duran not to talk to them. Defendant went back to sleep. Around 7:00 a.m., Duran woke defendant up so he could take him to where his wife was. Defendant drove his pickup truck and Duran directed him to the shelter.
When they got there, defendant stayed in his truck while Duran located defendant’s wife. Defendant and his wife talked for about three minutes. Then people from the shelter came out and told defendant to leave, or else they would call the police.
Defendant and Duran got back into the truck. About five minutes later, as they were driving, defendant’s wife called Duran’s phone. Defendant answered, then put Duran on the line. Duran told her to go home. Defendant then drove Duran back home. Duran asked for his identification cards back. Defendant refused, unless Duran gave him his Social Security card, which Duran would not do. Defendant told Duran not to call the police.
At first, Duran left town, because he was afraid. On September 26, 2014, however — one day later — he contacted the police, because he was concerned about defendant’s threat to frame him.
Duran told the police that he had known defendant’s wife for about a year. He said defendant punched him, in the body, “several times.” He did not say that defendant kidnapped him, threatened to kill him, or took any money from him. His only visible injuries were a cut on his chin, a cut on his left hand, and bruising near his armpit.
On September 30, 2014, the police interviewed Duran again. Once again, he omitted “a number of things” that he testified to at trial.
On October 1, 2014, the police interviewed defendant. Defendant admitted going to Duran’s home. He said a second man drove him there.
According to defendant, Duran lied to him, saying, “I don’t know your wife.” Defendant was angry and “hit him like maybe three [times].” Duran hit him back. Defendant accidentally broke Duran’s cell phone.
Defendant denied kidnapping Duran. Rather, Duran agreed to show him where his wife was. However, Duran was still lying; he would not give defendant the address and made him drive “all over.” Thus, defendant punched Duran once.
They went to defendant’s house. When defendant had to leave to take the second man home, he tied Duran up — with Duran’s consent — for five or ten minutes, so Duran would not run away and “do something” to defendant’s wife.
The next morning, Duran “was trying to do the same thing.” However, when defendant threatened to go to a police station, Duran took him to where his wife was.
Defendant took Duran’s identification cards so he could identify him in case he came back to kill defendant. Defendant told the police where they could find the electrical cord and the identification cards. The police found these items where defendant had said they would be.
II
THE ADMISSION OF EVIDENCE THAT
DEFENDANT’S WIFE WAS AT A DOMESTIC VIOLENCE SHELTER
Defendant contends that the trial court erred by admitting evidence that his wife was at a domestic violence shelter.
A. Additional Factual and Procedural Background.
Defense counsel filed a motion in limine to exclude evidence that defendant’s wife was staying at a domestic violence shelter, arguing that it was more prejudicial than probative. (Evid. Code, § 352.)
The prosecutor responded, “If [the] defense were to have their way, you have a case where the jury would hear that a man took [defendant’s] wife and children . . . to some undisclosed location and then when that husband perhaps rightfully . . . said ‘Where is my family?’ would not show them where they were.” He added, “[I]t explains [why] the victim . . . is not taking the defendant to his wife. It also shows why the victim is in fear of the defendant.”
The trial court ruled that the evidence was “not unduly prejudicial.” It added: “I think that the location is relevant. It certainly goes to the circumstance as presented at the time. It goes to the defendant’s motive for his behavior . . . . It also goes to the victim’s fear . . . .” It concluded: “[T]he court will allow reference to the location of [defendant’s wife] at the domestic violence shelter and we will leave it at that. The specifics of prior acts of domestic violence are not relevant to this case.”
Before voir dire, defense counsel additionally asked the trial court to require the use of the term “shelter” or “women’s shelter” rather than “domestic violence shelter.” The trial court denied the request. It observed: “[A] domestic violence shelter opens the door to women and they go there if they want to and essentially some circumstances no questions asked[,] appropriately so. I’m not sure it means that much, but that’s what it was called. Certainly that’s what the victim understood it to be called. That is the facts of the case. You’re asking to keep facts away from the jury that I do think are relevant. So I’m not going to do that.”
During his direct examination, Duran referred to “the shelter.” The prosecutor then asked him if he had ever seen “the domestic violence shelter.” Defense counsel objected, “Assumes facts not in evidence.” Outside the presence of the jury, there was this discussion:
“THE COURT: . . . [¶] We talked about don’t use the word ‘domestic violence.’ Second time. Don’t do it again.
“[PROSECUTOR]: Let me be clear, though, I thought we said that was fine.
“THE COURT: We said ‘Women’s shelter.’
“[PROSECUTOR]: If that’s the case, I am mistaken, I thought it was domestic violence.
“THE COURT: It’s ‘women’s shelter.’ That was the order of the Court.
“[PROSECUTOR]: Then, yes, I apologize.
“THE COURT: You misunderstood. That’s okay. Just don’t do it again.”
The trial court said it would “certainly” give a curative instruction if defense counsel wanted one, but defense counsel agreed that “[it] doesn’t mean very much right now. And [it] would be better not to call attention to it.”
B. Discussion.
Defendant argues that the fact that his wife was at a domestic violence shelter was irrelevant or, if relevant, more prejudicial than probative. He also asserts that “there is no meaningful difference between referring to the location as a ‘women’s shelter’ rather than as a ‘domestic violence shelter.’”
Evidence Code section 352 provides that: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“‘Prejudice’ in the context of Evidence Code section 352 is not synonymous with ‘damaging’: it refers to evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 188.)
“‘A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion.’ [Citation.]” (People v. Clark (2016) 63 Cal.4th 522, 586.) “A trial court has abused its discretion when its ruling ‘“fall[s] ‘outside the bounds of reason.’”’ [Citation.]” (People v. Kopatz (2015) 61 Cal.4th 62, 85.)
As the prosecutor argued below, the fact that defendant’s wife was in a domestic violence shelter was relevant to explain why Duran drove defendant’s wife and her children away from their home, why Duran was reluctant to tell defendant where his wife was, and why defendant needed Duran’s help to find his wife. If this fact had been kept from the jury, it would have looked as if Duran was wrongfully interfering in defendant’s marriage. It might even have looked as if Duran and defendant’s wife were having an affair.
As the trial court observed, the evidence was also relevant to prove that Duran was in reasonable and genuine fear. From the fact that defendant’s wife was in a domestic violence shelter, Duran could reasonably infer that defendant had used violence against his wife; from that, he could also reasonably infer that defendant was likely to use violence against him. Defendant argues that, if admitted for this purpose, the evidence was cumulative, because the fact that he beat Duran was sufficient to show that Duran’s fear was reasonable and genuine. Duran’s testimony that defendant beat him, however, was open to reasonable doubt; Duran told the police only that defendant punched him several times, and his injuries did not appear consistent with the severe beatings to which he testified. Thus, the fact that defendant’s wife was in a domestic violence shelter had significant probative value on this point.
On the other hand, the evidence was not unduly prejudicial. There was no evidence that defendant did, in fact, use violence against his wife. A fortiori, there was no evidence that he used any particularly shocking or inflammatory violence. Moreover, the jury heard the term “domestic violence shelter” only once. Defense counsel immediately objected that this “[a]ssumes facts not in evidence”; thereafter it was referred to blandly as just a “shelter.” Thus, the mention of “domestic violence” was brief and isolated.
Also, defense counsel did not object to the evidence that defendant’s wife had a black eye and that Duran drove her to a police station before she went to the shelter. A single mention of “domestic violence” added no significant prejudice to this.
Defendant argues that the evidence was “inadmissible character evidence” introduced through the “back door.” Defense counsel, however, could have requested an instruction that the jury should not conclude from this evidence that defendant had a bad character or was predisposed to crime. (See, e.g., CALCRIM No. 375.) The trial court even invited him to do so. He chose not to.
We therefore conclude that the trial court did not abuse its discretion by allowing the prosecution to introduce evidence that defendant’s wife was in a domestic violence shelter.
III
DENIAL OF A MISTRIAL AFTER A WITNESS
REFERRED TO DEFENDANT’S PREVIOUS “JAIL BOOKING”
Defendant contends that the trial court erred by denying his motion for a mistrial after a witness revealed that defendant had been in jail.
A. Additional Factual and Procedural Background.
During the direct examination of the investigating officer, there was this exchange:
“Q . . . [W]hat led you to the defendant?
“A During the initial report, [a] phone number was obtained [for] the suspect. I utilized various law enforcement databases and located a number in a jail booking in Riverside County.
“[DEFENSE COUNSEL]: Objection, Your honor. Relevance. Nonresponsive.
“THE COURT: It is. Objection is sustained. The jury’s ordered to disregard that answer. It’s not relevant to the case.”
At the next opportunity, which was the lunch break, defense counsel argued that the reference to a “jail booking” was incurably prejudicial. He asked to be heard further after lunch; the trial court agreed.
After lunch, defense counsel moved for a mistrial. The trial court denied the motion. It explained: “Clearly, the jury should not have heard it but in terms of the current state of the evidence, the Court does not believe that the conduct was particularly prejudicial. Certainly the Court admonished the jury to disregard. . . . I expect that they will follow that admonition.”
B. Discussion.
“A motion for a mistrial should be granted when ‘“‘a [defendant’s] chances of receiving a fair trial have been irreparably damaged.’”’ [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 198-199.) “Whether an incident is prejudicial and requires a mistrial is ‘by its nature a speculative matter,’ and the ‘“trial court is vested with considerable discretion in ruling on mistrial motions.’” [Citation.]” (People v. Williams (2016) 1 Cal.5th 1166, 1185.) “We review a trial’s ruling denying a motion for mistrial under the deferential abuse of discretion standard. [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 583.)
“‘Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice.’ [Citation.]” (People v. Dement (2011) 53 Cal.4th 1, 40, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Here, the trial court could reasonably find that any prejudice was not incurable, for several reasons.
First, the reference “was brief and isolated.” (People v. Dement, supra, 53 Cal.4th at p. 40.)
Second, the trial court admonished the jury to disregard the reference. “‘[I]n the absence of evidence to the contrary we must presume they followed the court’s admonition.’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 272-273.) This is true even when a witness volunteers the fact that the defendant has a criminal record. (E.g., People v. Curtis (1965) 232 Cal.App.2d 859, 867.) A “mere assertion that because of the nature of the statement, no juror would be able to follow the admonition to disregard it” is insufficient to overcome the presumption. (People v. Alexander (2010) 49 Cal.4th 846, 915.)
Third, the jury did not learn what crime or crimes defendant was accused of. The word “booking” suggested that he was merely arrested, rather than convicted. Out of the universe of ways to refer to defendant having a criminal record, this was about as nonprejudicial as it could possibly be.
Fourth, we have the benefit of knowing the verdict that the jury ultimately returned. It found defendant not guilty of making a criminal threat. It also found him not guilty of kidnapping, and guilty instead of the lesser included offense of felony false imprisonment. Obviously, the jury was not overcome by passion and prejudice; it was able to reach a verdict based on an impartial assessment of the evidence under the law.
We therefore conclude that the trial court did not err by denying defendant’s motion for a mistrial.
IV
THE APPLICATION OF PENAL CODE SECTION 654
Defendant contends that the trial court violated Penal Code section 654 (section 654) by imposing separate and unstayed sentences for both robbery and false imprisonment.
A. Additional Factual and Procedural Background.
Defense counsel raised this issue below. First, he argued that the trial court should run the sentences concurrently because “[defendant] had one objective. He wanted to find his wife and he wanted to keep Mr. Duran with him until he found his wife. Whether it was through tying him up . . . or taking his property, . . . his goal, his intention, his objective was to find his wife.” He then argued that, for the same reason, section 654 applied: “[T]he objective [of] both acts . . . was to find his wife.”
The prosecutor argued: “[T]he goal perhaps might be the same that he’s doing whatever he can to get to his wife. [But y]ou have separate conduct. . . . It’s different locations, and it’s separate times.” He continued: “Two crimes separated by not mere minutes but perhaps hours, and different elements of those crimes. So I don’t believe that simply because the argument can be made that, ‘Well, the same objective never changes. He was going to do whatever he could to find his wife,’ I don’t believe that warrants making . . . both crimes concurrent . . . .”
The trial court ruled: “[T]he court does not believe that Penal Code [s]ection 654 applies. The Court does believe that they were separate acts committed at separate times. One crime was not committed as part of the commission of the second crime.”
However, the trial court ran the sentences concurrently, explaining: “[A]lthough 654 does not apply, because the objective of one crime was not in commission of the subsequent crime, the objective of both crimes were [sic] locating the defendant’s wife. The crime objectives under these circumstances were not independent of each other.”
B. Discussion.
Section 654, subdivision (a), as relevant here, provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘“‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may [not] be punished . . . for more than one.’”’ [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269, 354.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“Whether a particular offense is part of a course of conduct for purposes of section 654 is a question of fact. [Citation.] In the absence of an explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it. [Citation.]” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045.)
Here, we need not decide whether the trial court could have found that defendant had distinct intents and objectives. The trial court specifically found that defendant had the same intent and objective — to find his wife. Ordinarily, this would mean that section 654 precluded multiple punishment.
The trial court also found, however, that the crimes were committed “at separate times.” “[A] course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) “Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted ‘one indivisible course of conduct’ for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)
“This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) An interval of as little as 10 or 15 minutes may be sufficient. (People v. Louie (2012) 203 Cal.App.4th 388, 399; People v. Clair (2011) 197 Cal.App.4th 949, 960.)
Defendant committed the robbery by taking Duran’s identification cards and cash as they were driving around. He committed the false imprisonment by tying Duran up at his home and forcing him to stay there overnight. In between, defendant stopped at the second empty lot and beat Duran. They drove around for a while looking for the shelter. The other man got a phone call, then both he and defendant calmed down. Finally, defendant took Duran to his home. During this interim period, defendant had ample time to reflect on the whole idea of using Duran to find his wife. The fact that defendant calmed down after the phone call demonstrates this.
It is also significant that “each offense created a new risk of harm. [Citation.]” (People v. Goode (2015) 243 Cal.App.4th 484, 493; accord, People v. Kwok, supra, 63 Cal.App.4th at pp. 1255-1256.) Taking Duran’s identification cards and money harmed Duran, not only by the loss of the items themselves, but also by coercing him to stay with defendant and help find defendant’s wife. However, he was still out in the open and still physically capable of moving, defending himself, and trying to escape. Tying him up indoors took the harm to a new level by depriving him of this physical freedom of movement.
We therefore conclude that the trial court’s finding that section 654 did not apply was supported by substantial evidence.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.


We concur:

CODRINGTON
J.

FIELDS
J.