P. v. Ornelas

Filed 10/13/06 P. v. Ornelas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Shari K. Silver, Judge. Affirmed.

Doris S. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

David Martinez Ornelas appeals from the judgment entered following his convictions by jury on count 2 -- second degree robbery (Pen. Code, § 211) with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)) and personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)), two counts of second degree robbery (Pen. Code, § 211; counts 3 and 4) with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)), and count 5 -- second degree robbery (Pen. Code, § 211) armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). The court sentenced Ornelas to prison for 35 years.

In this case, we conclude the trial court properly denied appellant’s Wheeler motion. After the prosecutor excused two Hispanics, including juror No. 1180, appellant made a Wheeler motion. The court found that appellant made a showing of group bias, and asked the prosecutor to justify the excusals. The prosecutor indicated he excused juror No. 1180 largely due to immaturity based on her loud and juvenile reaction to the fact that another juror indicated during voir dire that that juror had worked for a beverage company that made Red Bull. The court found the excusals were justified, and appellant challenges that finding only as to juror No. 1180. On this record, the finding as to juror No. 1180 involved a credibility determination to which we defer.

We reject appellant’s sufficiency challenges as to counts 3 through 5, and his claim that he did not personally use a firearm as to counts 3 and 4. There is no dispute that someone, as a direct perpetrator, robbed the victims of counts 3 and 4, and that someone, as a direct perpetrator, robbed the victim of count 5. Nor is there any dispute that the direct perpetrator of the robberies at issue in counts 3 and 4 personally used a firearm. Appellant claims only that there was insufficient identification evidence that he was the direct perpetrator of the robberies at issue in counts 3 through 5. However, the victims of counts 3 and 4 were robbed at gunpoint by a man whose appearance, weapon, and getaway vehicle were described. The victim of count 4 recorded the vehicle’s license plate number, and it varied by only one digit from the license plate number of a vehicle owned by appellant and substantially similar to the getaway vehicle. Twenty minutes later, two men, one of whom was armed, robbed another person (count 5), the description of the unarmed robber was consistent with that of the robber involved in counts 3 and 4, and the wallets of the victims of counts 3 and 4 were found at the location of the robbery of the victim of count 5. The victim of count 5 testified that a videotape, discussed post, depicted the robber who, during the robbery of the victim of count 5, was unarmed.

Ten minutes later, appellant committed another robbery and there is no dispute as to the sufficiency of the evidence that he committed it. The victim of that robbery identified appellant at trial as the robber and a videotape of that robbery was admitted in evidence. Police found a black T-shirt with writing on it in appellant’s bedroom closet, and the T-shirt was consistent in appearance with one worn by the robber in counts 3 through 5.

FACTUAL SUMMARY

1. People’s Evidence.

a. Counts 3 and 4.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 4:05 a.m. on October 10, 2003, John Eales and Gabriel Ramirez were at a Mobil gas station at Sepulveda and Nordhoff. A dark-colored Chevrolet Silverado 1500 pickup truck drove up. A Hispanic male exited the passenger side of the truck and, using a short-barreled pump-action shotgun with a pistol grip, robbed Eales and Ramirez (counts 3 and 4, respectively) of their wallets. The robber reentered the truck and it drove away. Ramirez had seen the truck’s license plate number, recorded it as 6U01550, and gave that information to police.

Eales testified the robber was about 5 feet 7 or 5 feet 8 inches tall, and had a medium build and short shaved hair. The robber was between 25 and 30 years old, and Eales “guestimate[d]” the robber’s weight at about 200 pounds. The robber was wearing a black T-shirt with white writing on it, and black pants.

b. Count 5.

About 4:30 a.m. on October 10, 2003, Lorenzo Rodriguez was at a Mobil gas station at Woodman and Nordhoff. A man approached him and asked for his wallet. Rodriguez denied having money. The man said, “‘I’m not the kind of guy you want to fuck with.’” A second man holding a pump-action shotgun with a pistol grip walked up behind the first man and pointed the shotgun at Rodriguez. Rodriguez surrendered his wallet to the first man, who subsequently asked for Rodriguez’s car keys. Rodriguez surrendered those to him as well (count 5). The robbers fled. Police arrived and, while investigating the robbery, found the wallets of Eales and Ramirez at the location.[1]

Rodriguez testified that the first robber was a Hispanic with a mustache and shaved head. The first robber was between 5 feet 7 inches and 5 feet 9 inches tall, weighed about 160 or 170 pounds, had a medium build, and was in his early to mid-twenties. The first robber wore a black T-shirt with the word Metallica on front. At trial, the prosecutor showed Rodriguez a photograph of a Metallica T-shirt (apparently the one found, as discussed post, in appellant’s bedroom closet). Rodriguez testified that the T-shirt depicted in the photograph was the same type as that worn by the first robber.

At trial, the prosecutor showed Rodriguez two photographic frames from a surveillance video camera operating later that morning at a donut shop (during the robbery of Hong Heng, discussed post). Rodriguez identified one frame as depicting the first robber. Rodriguez identified the other frame as depicting the shotgun used by the second robber.

c. Count 2.

About 4:40 a.m. on October 10, 2003, Hong Heng was working at the above mentioned donut shop, which was located at 13923 Van Nuys Boulevard. Appellant entered the donut shop and, using a gun, robbed Heng (count 2). Appellant took money from the cash register and demanded Heng’s wallet. A struggle ensued, the two separated, and appellant later shot at Heng.

Heng described appellant to police as tall, about 30 to 40 years old, and having a muscular, heavy build and a shaved head. On October 27, 2003, police showed Heng a photographic lineup and Heng identified appellant’s photograph. Heng also identified appellant at his preliminary hearing and at trial. A surveillance videotape which depicted the robber was admitted in evidence and played to the jury.

d. Additional Facts.

A detective received the license plate number information that Ramirez had provided (6U01550), but the detective found no vehicle assigned to that number. However, the officer replaced the third character with the number 4. The resulting license plate number, 6U41550, was the license plate number of a 1997 Chevrolet pickup truck registered to David Ornelas Martinez in Pacoima. The reason the officer had not replaced the first two characters, that is, “6U,” was that he had seen a Chevrolet truck depicted in the donut shop surveillance tape. That truck was a commercial truck. The characters “6U” on a license plate were generally assigned to commercial plates and to trucks and pickup trucks of a certain size.

On November 7, 2003, a detective searched appellant’s residence, which was located in the 9800 block of Stanwin Avenue. The detective found a black, extra large Metallica T-shirt in appellant’s bedroom closet. On that date, an officer saw appellant driving a black Chevrolet Silverado pickup truck bearing license plate number 6U41550.

2. Defense Evidence.

In defense, appellant’s mother, two neighbors, and the wife of one of appellant’s friends each viewed the surveillance videotape taken in the donut shop. Each of the four denied recognizing appellant as the person depicted in the videotape.

Moreover, Gloria Gutierrez, the above mentioned wife, testified that a defense photograph of appellant taken in October 2003 depicted him with a shaved head and mustache. Dianna Rivera, one of the above two neighbors, testified that in October 2003, appellant had a “bald shaved-head look,” and that, at the time of the trial, he was 26 years old and 5 feet 9 inches tall. Rivera “guestimate[d]” appellant’s weight as probably about 205 pounds, and testified appellant was rather muscular and well-built. Marylou Munoz, the other neighbor, also testified appellant had a fairly heavy build.

CONTENTIONS

Appellant contends the trial court erroneously denied his Wheeler motion. Appellant also contends there was insufficient evidence supporting (1) his convictions on counts 3, 4, and 5, and (2) the firearm use enhancements pertaining to counts 3 and 4.

DISCUSSION

1. The Trial Court Properly Denied Appellant’s Wheeler Motion.

a. Pertinent Facts.

During voir dire of prospective jurors, one of them indicated she was a risk manager for a beverage company. The court asked which one, and the prospective juror replied, “It’s Red Bull.” The record does not reflect any further reference to the matter at the time.

The People and appellant later exercised peremptory challenges. The People and appellant each excused two prospective jurors. The People then excused juror No. 7907 (hereafter, juror 7907). Appellant subsequently excused another prospective juror, then the People excused juror No. 1180 (hereafter, juror 1180). Jurors 7907 and 1180 were Hispanic women.

Based on the excusal of jurors 7907 and 1180, appellant made a Wheeler[2] motion in chambers. Appellant indicated he was Hispanic and, given the answers of jurors 7907 and 1180 during voir dire, the excusal of those two jurors was unjustified. The court found that appellant had made a prima facie showing of group bias, and asked the People to provide their reasons for the excusals.

The People replied in pertinent part as follows. The People excused juror 1180 because when someone the day before had said they worked for Red Bull, juror 1180 “had that really weird reaction. She said like ‘Yeah. Red Bull.’ It was just really loud, sort of juvenile. And it made me feel uncomfortable.” The court replied, “Okay.”

Appellant argued as follows. The People excused juror 1180 based on a highly subjective factor predicated on conduct, such as laughter at a particular answer, that was susceptible to multiple interpretations. Appellant’s counsel commented, “. . . I didn’t see it, and I accept that [the People] saw something when [juror 1180] reacted.” Counsel argued the People were characterizing juror 1180’s response as indicative of immaturity or some other negative attribute. However, her response could have indicated other possibilities, including perhaps that she had a friend or ex-husband who drank Red Bull. The matter involved hunches and guesses, that is, matters not rooted in objective factors which justified excusal.

The court stated, “Well, I, too, have been following the appellate court decisions in this area. It is very difficult for the trial court to make findings on what is and what is not an appropriate excusal of a juror under a peremptory challenge for nongroup bases. From what I’ve heard from the [People] in this instance, the court finds that the explanations were reasonably acceptable.” The court noted it had thought Red Bull was a beer but was informed it was instead an energy drink with a lot of caffeine. The prosecutor commented that kids drank it and “. . . I just thought it was weird.”

Appellant indicated as follows. He remembered the incident, a number of people reacted, not just juror 1180, and there was general laughter. The fact that juror 1180 reacted was entitled to very little, if any, significance. If juror 1180 had been the only one who had laughed, that would be significant or inappropriate, but she was not the only one who had laughed.

The court stated, “Well, the court still finds that the People’s explanation was lawful and not group based. However, I just want to say that I’m going to look very closely if there is another Hispanic excused. I will look very closely to the articulable reasons. This is just a very difficult issue to rule on. I have to rule on it. And the irony is that I tell the jurors that each side is entitled to a fair jury, and both sides say that. But the whole idea behind peremptory challenges is to try to stack the jury with people who each side thinks will be favorable to their side.”

b. Analysis.

Our Supreme Court has observed that “There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner.” (People v. Turner (1994) 8 Cal.4th 137, 165.) In People v. Fuentes (1991) 54 Cal.3d 707, our Supreme Court stated, “This court and the high court have professed confidence in trial judges’ ability to determine the sufficiency of the prosecutor’s explanations. In Wheeler, we said that we will ‘rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ (Wheeler, supra, 22 Cal.3d at p. 282.) Similarly, the high court stated in Batson v. Kentucky [(1986) 476 U.S. 79 (Batson)], that ‘the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility,’ and for that reason ‘a reviewing court ordinarily should give those findings great deference.’ [Citation.]” (People v. Fuentes, supra, 54 Cal.3d at p. 714.) If substantial evidence supports the trial court’s findings, we may affirm them. (People v. Williams (1997) 16 Cal.4th 635, 666.)

In the present case, appellant challenges only the trial court’s finding that the People lawfully excused juror 1180. However, as to juror 1180, the People thought she had a really weird, really loud, and somewhat juvenile reaction to the fact that another prospective juror was employed by Red Bull. The reaction made the People uncomfortable. Appellant did not expressly claim the People had not excused juror 1180 for the above reasons. Instead, appellant argued the People excused juror 1180 based on a highly subjective factor predicated on conduct susceptible to multiple interpretations.

Wheeler held a party may legitimately challenge a prospective juror based on subjective mistrust of the juror’s objectivity. (People v. Ward (2005) 36 Cal.4th 186, 202.) A variety of subjective factors and considerations legitimately inform a trial lawyer’s decision to exercise peremptory challenges. (People v. Montiel (1993) 5 Cal.4th 877, 909.) Jurors “may be excused based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.” (People v. Turner, supra, 8 Cal.4th at p. 165.) A juror may also be excused because of immaturity. (Cf. People v. Sims (1993) 5 Cal.4th 405, 429-432.)

In the present case, after finding that appellant made a prima facie showing of impermissible group bias, the trial court found to be legitimate the prosecutor’s proffered justification as to juror 1180. The latter finding involved a credibility determination to which we defer. The court’s comments do not reflect any failure to understand its duties with respect to appellant’s Wheeler motion. We conclude no Wheeler or Batson error occurred, and the trial court properly denied appellant’s Wheeler motion. (Cf. People v. Williams, supra, 16 Cal.4th at pp. 664, 666; People v. Fuentes, supra, 54 Cal.3d at pp. 714-715; People v. Turner, supra, 8 Cal.4th at p. 168; People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1112-1115.)

2. Sufficient Evidence Supported Appellant’s Convictions on Counts 3, 4, and 5, and the Firearm Use Finding as to Counts 3 and 4.

There is no dispute that someone, as a direct perpetrator, robbed Eales (count 3) and Ramirez (count 4), and that someone, as a direct perpetrator, robbed Rodriguez (count 5). Nor is there any dispute that the direct perpetrator of the robbery of Eales and Ramirez personally used a firearm. Appellant claims there was insufficient identification evidence that he was the direct perpetrator of the robberies at issue in counts 3 through 5. We reject the claim.

There was substantial evidence as follows. A Hispanic male exited a dark-colored Chevrolet Silverado pickup truck at a gas station at Sepulveda and Nordhoff. Using a short-barreled shotgun with a pistol grip, the Hispanic male robbed Eales (count 3) and Ramirez (count 4) of their wallets. The robber was between 5 feet 7 and 5 feet 8 inches tall, and had a medium build and short shaved hair. Eales estimated the robber was between 25 and 30 years old. The robber wore a black T-shirt with white writing, and wore dark pants. There was evidence the robber had an accomplice as a getaway driver.

Twenty minutes after that robbery, a man robbed Rodriguez (count 5) at a gas station at Woodman and Nordhoff. The robber’s accomplice held a shotgun with a pistol grip. The unarmed robber was a Hispanic male with a shaved head. He was between 5 feet 6 inches and 5 feet 9 inches tall, had a medium build, and was in his early to mid-20’s. The robber wore a black T-shirt with the word Metallica on front. The T-shirt was the same type of T-shirt which police later found in appellant’s closet. Rodriguez identified a photograph, later taken by a surveillance camera (discussed post) at a donut shop, as depicting the robber. Police found the wallets of Eales and Ramirez at the location of the Rodriguez robbery.

Appellant makes no sufficiency claim as to count 2, the Heng robbery, which occurred about 35 minutes after the robberies of Eales and Ramirez, and about 10 minutes after the Rodriguez robbery. In particular, there is no dispute as to the sufficiency of the identification evidence that appellant was the person who robbed Heng at the donut shop and tried to take his wallet. According to Heng, appellant had a shaved head. Police showed Heng a photograph depicting appellant and Heng identified appellant as the person depicted. A videotape produced by a surveillance camera at the donut shop depicted the robber, and the tape was played to the jury.

The defense presented evidence that in October 2003, appellant had a shaved head and mustache. The defense also presented evidence that, at the time of the trial, appellant was 26 years old, 5 feet 9 inches tall, 205 pounds, and rather muscular and well-built.

The license plate number which Ramirez provided to police, 6U01550, differed from the license plate number of a 1997 Chevrolet pickup truck (6U41550) by only one character, and that truck was registered to David Ornelas Martinez. Appellant concedes the license plate number 6U41550 corresponded to a “Chevy pickup registered to appellant at a local address relative to the locations of the crimes.” An officer had seen a Chevrolet truck in the surveillance tape which was taken at the donut shop where appellant robbed Heng. On November 7, 2003, police found a black Metallica T-shirt in appellant’s bedroom closet, and saw him driving a black Chevrolet Silverado pickup truck bearing license plate 6U41550.

We hold there was sufficient evidence, including sufficient identification evidence, that appellant robbed Eales, Ramirez, and Rodriguez as alleged in counts 3 through 5, and personally used a firearm as to counts 3 and 4. (Cf. People v. Ochoa, supra, 6 Cal.4th at p. 1206; Pen. Code, §§ 211, 12022.53, subd. (b).)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P.J.

ALDRICH, J

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

[1] On November 24, 2003, police showed Rodriguez a photographic lineup containing appellant’s photograph. Rodriguez was unable to identify appellant’s photograph. On about February 2, 2004, Rodriguez attended a corporeal lineup. He identified two men as looking similar to the robber. Appellant was neither of the two men.

[2] People v. Wheeler (1978) 22 Cal.3d 258.