P. v. Martinez

Filed 10/26/07 P. v. Martinez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Schuur, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed with modifications.

Gina McCoy and Jill Ishida, under appointments 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Won, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

I. INTRODUCTION

Defendant, Leslie Angelica Martinez, appeals from her felony convictions for robbery (Pen. Code,^[1] 211), unlawful driving of an automobile (Veh. Code, 10851, subd. (a)), receiving stolen property ( 496d, subd. (a)), and evading an officer with willful disregard for the safety of others. (Veh. Code, 2800.2, subd. (a)). She also appeals her conviction for misdemeanor hit and run driving. (Veh. Code, 20002, subd. (a).) Defendant argues there was insufficient evidence to support her conviction for robbery and her sentence for receiving stolen property should have been stayed pursuant to section 654, subdivision (a). The Attorney General argues that certain fees must be imposed. We affirm the judgment with minor modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 9 p.m. on March 15, 2006, Jeffrey Butscher parked his new black Cadillac Escalade truck in Manhattan Beach. The truck, which did not yet have a license plate, was locked and secured. When Mr. Butscher returned later that evening, his truck was gone. Mr. Butscher had not given anyone, including defendant, permission to take the truck. The truck had only 3,000 miles on the odometer and was maintained in pristine condition. When the truck was returned to Mr. Butscher on March 28, 2006: it was not driveable; it had significant damage to the entire left side; all four tires were flat; some of the rims were cracked; the interior was significantly damaged; and the ignition device on the steering column had been broken. The total damage to the truck was $65,000.

At approximately 6 a.m. on March 25, 2006, Ariana Garcia was waiting for a bus in Huntington Park. Ms. Garcia saw a black Escalade stop. A Latino man and a teenage woman approached Ms. Garcia. The man had a shaved head with a gang tattoo on the back. The woman asked Ms. Garcia where she was from. Ms. Garcia understood that to mean whether she belonged to a gang. Ms. Garcia responded, No. The man took Ms. Garcias iPod. The teenager took Ms. Garcias purse. The two thieves walked back to the black Escalade. Ms. Garcia saw a woman in the drivers seat. The man and the teenager got into the truck, which immediately drove away. When asked if defendant was the driver, Ms. Garcia stated, I dont remember. Ms. Garcia was afraid to testify at trial because of the gangs. Ms. Garcia had $150 and her cellular telephone in her purse when it was taken. Thereafter, Ms. Garcia followed the black Escalade in an attempt to get the license number. However, Ms. Garcia was unable to catch up to the black Escalade.

Huntington Park Police Officer Alex Escobar responded to a call regarding the robbery of Ms. Garcia at approximately 6:10 a.m. Ms. Garcia gave Officer Escobar a description of the truck and the individuals involved. Ms. Garcia described the driver as a Hispanic woman. At approximately 9:43 a.m., Officer Escobar saw Mr. Butschers Escalade fail to stop for a red light. Officer Escobar followed the Escalade. Officer Escobar saw defendant driving Mr. Butschers truck. Defendant was driving in excess of the speed limit, erratically switching lanes, and cutting off other drivers. Officer Escobar positioned his black and white police car behind the Escalade truck. Officer Escobar activated the light bar on top of the patrol car with a forward facing red and blue light. Officer Escobar also activated his sirens.

Defendant looked in the rear view mirror before pulling to the right. Defendant spoke to her male passenger. Defendant then pulled away from the curb across traffic onto a residential street. Defendant accelerated to 40 or 50 miles per hour. Defendant swerved to avoid a collision with another car coming out of a driveway. Defendant then failed to stop for a stop sign. Defendant turned right onto Randolph Street accelerating to over 50 miles per hour. After driving into opposing traffic lanes, defendant made a left turn against a red light. Defendant accelerated to over 60 miles per hour. Defendant locked her brakes as she approached two large trash trucks on either side of the road. Defendant maneuvered between the two trucks. Defendant turned right and accelerated again. Defendant failed to stop at three stop signs. After turning right again, defendant accelerated to more than 100 miles per hour. Because the officers could not keep up with defendant and her driving was so erratic, they terminated the pursuit. At that time, defendant was driving toward a bend in the road on District Avenue. As Officer Escobar approached that area, he noticed a traffic sign had been knocked over and the curb had been impacted by a collision. Debris later collected at the area included a hub cap for an Escalade truck.

Maria Rios was driving a black Honda at approximately 10 a.m. on March 25, 2006. Ms. Rios children were also in her car. As Ms. Rios approached the bend in the road, a black Escalade truck went over a ramp and collided with her car. The Escalade truck then continued on, turning left against a red light. Ms. Rios followed the truck until it stopped on 59th Street. Ms. Rios saw a man and a woman get out of the back seat of the truck. Another man got out of the passenger side of the front seat. Ms. Rios could not see inside the drivers side because the windows were tinted. Soon thereafter, police officers arrived at the scene. Ms. Rios pointed out the two passengers from the back seat to the officers. The man who got out of the front seat ran towards Alamo Street.

Officer Escobar detained the two passengers, who were later identified as Ronnie Urich and Delilah D., a minor. Officer Juan Porras transported Mr. Urich and Delilah to the police station. While en route, Officer Porrass attention was drawn to defendant and Eugene Rubalcava by something Mr. Urich said. Defendant and Mr. Rubalcava were walking together on the street several hundred yards from the scene of the accident. Officer Porras notified other officers to arrest defendant and Mr. Rubalcava. Mr. Rubalcava was detained and later released. Officer Escobar identified defendant as the driver of the Escalade truck. Delilah D. matched the description of the individual who robbed Ms. Garcia and what that individual wore.

Officer Escobar saw that the steering column of the Escalade truck had been forced and tampered with. The front rims and tires of the truck were completely mutilated. The entire bottom of the truck frame was bent and cut from the collision. The truck was missing a hub cap. When Officer Escobar first began to follow the Escalade truck, it had no damage. Ms. Garcias purse was inside the Escalade truck. Also found in the truck was another purse containing several court documents in defendants name, a brown organizer, gun ammunition, and the registration for the Escalade truck in Mr. Butcshers name. When defendant was booked, she gave her home address as 219 West Elm Street. That address was approximately 15 to 20 minutes from where Ms. Garcia was robbed.

When Officer Escobar interviewed Delilah following her arrest, she told him that at approximately 6:15 a.m. she was in the Escalade. Defendant was driving. Also in the truck were Mr. Rubalcava and another man. When they stopped near a bus stop, defendant told Delilah, Jack that fool. Delilah felt obligated to do so. Delilah asked Mr. Rubalcava to help her. Thereafter, Delilah and Mr. Rubalcava walked up to Ms. Garcia and took her purse. Defendant took the purse, indicating that she was going to keep it. Defendant removed $40 from the purse and gave it to Delilah. Mr. Rubalcava had an iPod while in the truck, but Delilah did not recall how he obtained it. Delilah was scared during the police pursuit because defendant was driving fast and recklessly.

Delilah did not recall telling Officer Escobar that defendant was driving the Escalade. Delilah recalled having the conversation with Officer Escobar. Delilah acknowledged she committed the robbery of Ms. Garcia at the bus stop. Delilah said that she took a friend with her to commit the robbery. However, Delilah denied knowing her friends name. At one point, Delilah was asked: Now, this girl that you robbed at the bus stop, actually, [defendant] told you Jack that fool; Correct? Did you tell Officer Rubalcava that? I mean, Officer Escobar that; yes or no? Delilah responded, I probably, have but The prosecutor then asked: [A]fter [defendant] told you to jack that fool you took your buddy with you, because you were afraid because the girl at the bus stop was bigger than you; right? Yes or no, did you tell Officer Escobar that? Delilah responded, I believe I have. Further, Delilah was asked the following question, You told Officer Escobar that after [defendant] asked you for the purse, [defendant] told you that she liked the purse so much she was going to keep it for herself. [] Do you recall telling Officer Escobar that? Delilah admitted stating such to Officer Escobar. After the robbery, defendant gave $40 from Ms. Garcias purse to Delilah. Delilah stated that after the robbery, they went to her house to kick it. Thereafter, defendant gave Delilah ride. Also present was Delilahs father. Two other males were in the car.

Defendant testified on her own behalf. Defendant admitted that she was driving the Escalade truck during all of the events presented in evidence at trial, including the robbery and the high speed chase. Defendant had been in possession of the truck since the night before these incidents. Because she was able to start the truck without a key, she knew it was stolen. Delilah had asked defendant for a ride. Delilah also asked that two other women be given a ride in the Escalade. Defendant picked them up before 6 a.m. Delilah asked defendant to pull over near the bus stop. Delilah wanted to speak to the woman on the corner. Delilah and one of the men got out, approached the woman, and returned to the truck with a purse. Defendant realized that they must have taken the purse. Delilah told defendant to drive away. Defendant placed the purse inside the center console. Defendant knew that she was helping them get away from a robbery. However, defendant never told Delilah to rob the woman or, Jack that fool. They returned to Delilahs home.

Later that morning, defendant drove Delilahs father, Mr. Urich, somewhere. Defendant saw the police officers pull up behind her. The officers activated the patrol car siren briefly. Defendant began to pull over before realizing she was driving a stolen truck. Defendant pulled away. Defendant led the police on the chase because the truck was stolen. A friend gave the truck to defendant. Defendant was unwilling to reveal the friends name. The friend told defendant, [G]et rid of it. On January 26, 2006, defendant pled guilty to misdemeanor driving without the owners consent in another case and was placed on probation.

When Officer Escobar interviewed defendant following her arrest, defendant eventually admitted that the car was stolen. Defendant said that an acquaintance told her to [G]et rid of it. Defendant was told to park it and leave it somewhere. However, defendant decided to keep the truck for a while longer. Officer Escobar described defendants statement as follows: [Defendant] told me that earlier that morning she was in the car and . . . Delilah . . . told her to pull over to take some stuff from some girl; and . . . she pulled over and Delilah . . . exited the vehicle; and she remembers Delilah coming back into the vehicle with a purse but doesnt really remember exactly what happened and how it went down . . . .

III. DISCUSSION

A. Sufficient Evidence Supports Defendants Robbery Conviction

Defendant argues there was no competent evidence to support her robbery conviction. Defendant further argues that because the evidence of her involvement in the robbery was limited to the uncorroborated testimony of an accomplice, it cannot support a conviction. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v.Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v.Hayes (1990) 52 Cal.3d 577, 631; People v.Johnson (1980) 26 Cal.3d 557, 576; see also People v. Gurule (2002) 28 Cal.4th 557, 630.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v.Virginia, supra, 443 U.S. at pp. 318-319; Taylor v.Stainer, supra, 31 F.3d at pp. 908-909; People v. Moon (2005) 37 Cal.4th 1, 22; People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v.Bloom (1989) 48 Cal.3d 1194, 1208; People v.Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Hughes (2002) 27 Cal.4th 287, 370.) There was substantial evidence to support the jurors finding that defendant was involved in the robbery of Ms. Garcia.

Section 1111 provides, A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. In People v. Lewis (2001) 26 Cal.4th 334, 370, the California Supreme Court held: Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.] [Citation.] The evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. [Citation.] (People v. Lewis, supra, 26 Cal.4th at p. 370, quoting People v. Hayes, supra, 21 Cal.4th at p. 1271 and People v. Fauber (1992) 2 Cal.4th 792, 834; see also People v. Bunyard (1988) 45 Cal.3d 1189, 1206 [The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citations omitted.]]; People v. Szeto (1981) 29 Cal.3d 20, 27; People v. Perry (1972) 7 Cal.3d 756, 769.)

Here, Delilah told Officer Escobar that when they approached the bus stop where Ms. Garcia stood, defendant said, Jack that fool. Delilah felt obligated to do so. Thereafter, Delilah and Mr. Rubalcava walked up to Ms. Garcia. They then took Ms. Garcias purse. When they returned to the truck, defendant took the purse, indicating that she was going to keep it. Defendant removed $40 from the purse and gave it to Delilah. Delilah testified that she probably told Officer Escobar that defendant told her to Jack that fool. When interviewed by Officer Escobar following her arrest, defendant told him that Delilah said to stop the car. Defendant admitted seeing Delilah actually take the purse away from the woman at the bus stop. Officer Escobar included that statement in his report. Ms. Garcia testified that the Escalade was driven by a woman. When asked if defendant was the driver of the Escalade, Ms. Garcia testified, I dont remember. The evidence established that defendant while driving a stolen truck, pulled over and allowed her passengers to get out to rob Ms. Garcia. Defendant was aware that a robbery took place. Thereafter, defendant and her companions evaded pursuing police officers. Defendant placed the purse stolen from Ms. Garcia in the center console of the truck during the pursuit. The testimony of Ms. Garcia and Officer Escobar, when viewed in conjunction with the surrounding circumstances and defendants own testimony, adequately corroborate Delilahs testimony and statements regarding the robbery.

In addition, the jurors were instructed with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM Nos.: 319 (prior statements as evidence); 335 (accomplice testimony must be corroborated)^[2]; and, 358 (evidence of defendants statements). The California Supreme Court has consistently stated that on appeal it is presumed that the jury is capable of following the instructions they are given. (People v.Bradford (1997) 15 Cal.4th 1229, 1337; People v.Osband, supra, 13 Cal.4th at p. 714; Peoplev. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) The jurors could reasonably conclude that defendant was an accomplice to the robbery.

B. Sentencing

1. Imposition of concurrent sentences

Defendant argues the trial court improperly imposed a concurrent sentence as to count 5, receiving stolen property (the Escalade truck), rather than staying it pursuant to section 654, subdivision (a). Defendant argues that both the unlawful driving (count 4) and the receiving stolen property convictions were based on the same act of driving the stolen Escalade. At sentencing, the trial court noted: On count 4, because the unlawful taking occurred at a different time than the robbery, the court is sentencing the defendant to one-third the midterm of eight months. [] On count 5, because it is related to the same transaction, Ill say, as count 2, so on count 5, the defendant is sentenced to two years concurrent to the sentence imposed on counts 1 and 4. Section 654, subdivision (a) provides in relevant part, 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. . . .

We review the trial courts order imposing concurrent sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Downey (2000) 82 Cal.App.4th 899, 917; People v. Oseguera (1993) 20 Cal.App.4th 290, 294-295; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) In conducting the substantial evidence analysis we view the facts in the following fashion: We must view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Holly (1976) 62 Cal.App.3d 797, 803.) (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Green (1996) 50 Cal.App.4th 1076, 1085.) Whether a course of conduct is indivisible depends upon the intent and objective of the actor. (People v. Perez (1979) 23 Cal.3d 545, 551; Neal v. State of California (1960) 55 Cal.2d 11, 19.) Substantial evidence supports a finding of a divisible course of conduct based upon defendants intent and multiple objectives.

The trial court reasonably could have concluded defendant had the intent to both receive stolen property, Mr. Butschers Escalade, or drive it without his permission. At the outset, it bears emphasis that defendant can be convicted of receiving stolen property and driving Mr. Butschers Escalade. (People v. Garza (2005) 35 Cal.4th 866; People v. Jaramillo (1976) 16 Cal.3d 752, 758.) Defendant admittedly received the stolen truck on March 24, 2006. Defendant testified that her friend told her, to [G]et rid of it. However, defendant decided to keep the truck and drive it for a few days. It was not until the following day that defendant formed a separate intent to drive the stolen truck on two separate occasions, which involved the 6 a.m. robbery of Ms. Garcia and the later high speed chase. In the interim, defendant and her companions admittedly went to Delilahs home for a few hours.

In People v. Trotter (1992) 7 Cal.App.4th 363, 366-368, our colleagues in the Court of Appeal for the Fourth Appellate District found evidence sufficient to establish that a defendant who fired three separate shots from a commandeered taxi at a pursuing officer had separate intents for each shot fired. In Trotter, citing People v. Harrison (1989) 48 Cal.3d 321, 337-338, the Court of Appeal held: No purpose is to be served under section 654 by distinguishing between defendants based solely upon the type or sequence of their offenses. . . . [I]t is defendants intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable. (Ibid.) [] The purpose behind section 654 is to insure that a defendants punishment will be commensurate with his culpability. [Citation.] People v. Perez [, supra,] 23 Cal.3d [at p.] 552.) Defendants conduct became more egregious with each successive shot. Each shot posed a separate and distinct risk to Bledsoe and nearby freeway drivers. To find section 654 applicable to these facts would violate the very purpose for the statutes existence. [] Furthermore, this was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. [D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior. (People v. Harrison, supra, 48 Cal.3d at p. 338.) (People v. Trotter, supra, 7 Cal.App.4th at pp. 367-368, fn. omitted, original italics; accord, In re Michael B. (1980) 28 Cal.3d 548, 556-557 [taking an automobile and driving without a license are separate divisible offenses].)

In Trotter, the court described the act of shooting at the same pursing police officer in the context of section 654, subdivision (a) as follows: All three shots were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. (People v. Trotter, supra, 7 Cal.App.4th at p. 368; see People v. Kwok (1998) 63 Cal.App.4th 1236, 1255-1256 [theft of victims key and subsequent burglary constituted divisible offenses subject to separate sentences]; People v. Surdi (1995) 35 Cal.App.4th 685, 689 [defendant properly punished for kidnapping and mayhem based upon separate intent].) The same is true in this case and the trial court could reasonably conclude separate volitional acts separated by hours were committed by defendant. The trial court could therefore properly imposed concurrent sentences.

2. Court Security Fees

Defendant was subject to the imposition of a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) for each of the five counts for which she was convicted. The trial court did not impose any section 1465.8, subdivision (a)(1) fees. Five section 1465.8, subdivision (a)(1) fees must be imposed. People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is affirmed as modified to impose the court security fees as noted. The trial court is to personally insure a correct abstract of judgment is prepared and forwarded to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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

^[2] CALCRIM No. 335 was given as follows: If the charged crimes were committed, then Delilah [] was an accomplice to those crimes. [] You may not convict the defendant of the charged crimes based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: [] (1), the accomplices statement or testimony is supported by other evidence that you believe; [] (2), that supporting evidence is independent of the accomplices statement or testimony; and [] (3), that supporting evidence tends to connect the defendant to the commission of the crimes. [] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [] Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution in the light of all the other evidence.