P. v. Roberts

Filed 6/4/07 P. v. Roberts 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Arthur Harrison, Judge. Affirmed in part and reversed in part.

Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J.T. Carlton, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Clarence Roberts, Jr., (hereafter defendant) guilty of attempted robbery (count 2) and robbery (count 3).^[1]After defendant waived his right to a jury, the trial court made true findings on allegations under the Three Strikes law that defendant previously had twice been convicted of robbery and on an allegation under Penal Code section 667, subdivision (a)(1)^[2]that defendant had previously been convicted of a serious felony. The trial court sentenced defendant to serve a determinate term of five years in state prison on the section 667, subdivision (a)(1) prior conviction, and in accordance with the mandate of the Three Strikes law, the trial court sentenced defendant to serve a term of 25 years to life in state prison on count 2 and count 3, to be served consecutively.

Defendant raises two claims of error in this appeal. First, he contends that the trial court should have instructed the jury on attempted theft and theft as lesser included offenses to the charged crimes. Next, defendant contends that the trial court erred in finding that the victim of count 2 was unavailable as a witness, and, based on that finding, admitting her preliminary hearing testimony into evidence at trial. We agree with this latter assertion, for reasons we explain below, and therefore will reverse defendants attempted robbery conviction.

FACTS

The charges in this case stem from events that occurred on September 25 and 26, 2000, in the City of San Bernardino.^[3] Because the jury acquitted defendant of the charge that allegedly occurred on September 25, 2000, we will not recount the details of that crime, except as necessary to provide a context for other evidence pertinent to the events on September 26, 2000. On that date, around 10:00 a.m., defendant walked up to the counter at an Arbys restaurant and said to Anthony Silva, the employee behind the counter, Give me the money. According to Silva, defendant had his right hand in the pocket of his pants in such a way that Silva thought defendant had a gun, although defendant did not say that he was armed and did not threaten Silva with a weapon. Silva stepped back from the counter and called over to Pamela Brown, another Arbys employee. When Brown came over, defendant said, I want it. Silva in turn yelled out for someone to call the police and then left the area purportedly to warn the other employees.^[4] Brown tried to open the cash register but was having difficulty when defendant said he would give her three seconds to get the register open. When Brown continued to struggle, defendant started to count down but stopped when Brown opened the register. Brown gave defendant the money, all bills, from that register. According to Brown, defendant pointed to the cash register at the drive-through window and said, I want that one too. Brown again gave defendant the bills from that register after which defendant left Arbys with the money. During the entire encounter, defendant kept his right hand in the front pocket of his pants. Brown was scared and believed defendant had a gun that he might use if she did not comply with his demands.

Defendant had earlier gone into a Taco Bell restaurant and asked Blanca Trujillo, a Taco Bell employee, for money. Although Ms. Trujillo testified at defendants preliminary hearing, by the time of trial she had moved back to her home in Mexico. The trial court granted the prosecutors request to introduce Ms. Trujillos preliminary hearing testimony into evidence at trial.^[5] According to that testimony, defendant (whom Ms. Trujillo identified at the preliminary hearing) entered the Taco Bell a little before 10:00 a.m. and walked up to the counter. Defendant had his hands in his pockets when he said to Ms. Trujillo, Give me the money. Initially Ms. Trujillo did not understand what defendant had said and then before she could comply with defendants demand, other customers entered the Taco Bell. When Ms. Trujillo went to wait on the other customers, defendant left the Taco Bell.

After defendant left Taco Bell, he asked Loretta McKenzie, whom he spotted in the parking lot, to drive him down E Street to a crack motel. On the way, defendant had McKenzie stop at an El Pollo Loco. Defendant walked into that restaurant and the employee behind the counter told defendant that he would be right with him. Defendant left because there was another customer in the restaurant who looked like he might be a security guard. After leaving El Pollo Loco, defendant walked next door to Arbys. After he obtained money there, defendant and McKenzie drove off and were apprehended by the police a short time later in the parking lot of a strip mall.^[6] Anthony Silva and Pamela Brown, the Arbys employees, both identified defendant in the field and also in court.

Defendant testified at trial and stated, in pertinent part, that he had only been panhandling. We recount the details of defendants testimony below in our discussion of his claim that the evidence supported instructing the jury on theft as a lesser included offense to robbery.

DISCUSSION

We first address defendants challenge to the trial courts ruling admitting the preliminary hearing testimony of Blanca Trujillo. Defendant contends that the prosecution did not use due diligence in its effort to bring Trujillo to court and therefore the trial court erred in finding that she was unavailable. We agree.

1.

ADMISSIBILITY OF PRELIMINARY HEARING TESTIMONY

The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecutions witnesses. (U.S. Const., 6th Amend.; Cal. Const.[,] art. I, 15.) That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made a good-faith effort to obtain the presence of the witness at trial. [Citations.] California allows introduction of the witnesss prior recorded testimony if the prosecution has used reasonable diligence (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. (Evid. Code, 240, subd. (a)(5 ); . . .) (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).)^[7]

The issue of whether the prosecution used due diligence in attempting to locate a missing witness is a mixed question of law and fact. (Cromer, supra, 24 Cal.4th at p. 894.) In reviewing such rulings, we defer to the trial court on issues of historical fact (which are rarely disputed) if those facts are supported by substantial evidence, but we independently determine whether those facts show due diligence. (Cromer, at p. 900.) The facts in this appeal, although undisputed, are not as the parties represented, as we now explain.

At a hearing in August 2005 to determine the admissibility of the preliminary hearing testimony, the prosecutor called Marnie Williams as a witness. Ms. Williams, a senior investigator with the district attorneys office, testified in pertinent part that she had served Ms. Trujillo with a subpoena to appear in court on June 10, 2003, the original date of defendants trial.^[8] At the time she was served, Ms. Trujillo said she would be moving back to Mexico. According to Ms. Williams, Blanca Trujillo did not appear on the date she was subpoenaed to appear and as a result, a warrant issued for her arrest. Ms. Williams next contacted Ms. Trujillo in May 2004 when she reached her by telephone in Mexico. At that time, Ms. Trujillo said that she did not have any papers granting her the right to legally return to the United States. In April 2005, Ms. Williams again attempted to contact Ms. Trujillo by telephone in Mexico. She made six phone calls that were not successful either because the phone rang but was not answered or the phone line was busy. In March of this year [presumably referring to 2005], Williams attempted to call Ms. Trujillo about ten times and then last month [presumably referring to July] Williams called and spoke with Ms. Trujillos husband who said she was out of town and unavailable.

The trial court found, Inasmuch as the witness was served while in this country for an appearance, she failed to make that appearance, the subsequent attempts at contacting and actual contacts with her I think does establish due diligence. The trial court also stated that according to the courts minutes, a warrant was issued by Judge Barr on February 4, 2004, and remained outstanding with bail set at $35,000. Accordingly, over defendants objection, the trial court allowed the prosecutor to introduce Ms. Trujillos preliminary hearing testimony at trial after finding that she was unavailable as a witness and the prosecution had used due diligence in attempting to locate her.

At the outset we note that contrary to the district attorneys evidence, the record reflects that Ms. Trujillo appeared in court on June 10, 2003, as directed in the subpoena that Marnie Williams served on her, and that the trial court ordered her to return on July 15, 2003. On July 11, 2003, the trial court continued defendants trial to July 21, 2003, so no hearing occurred on July 15, 2003. The clerks minutes do not include any other reference to Ms. Trujillo until August 23, 2005, when the trial court granted the prosecutors motion to declare her unavailable. In short, there is no minute order for February 4, 2004,^[9]and there is no minute order indicating that a warrant had issued for Ms. Trujillos arrest, or for that matter for the arrest of anyone. In other words, the evidence contained in the record on appeal does not support the trial courts factual findings.

Beyond the factual discrepancies, the evidence does not support the trial courts finding that the prosecution used due diligence to secure Ms. Trujillos attendance at trial. According to the evidence set out above, the investigator spoke with Ms. Trujillos husband in July, a month before trial, and then did nothing more after the husband said Ms. Trujillo was out of town and not available. The prosecutors evidence does not explain why Ms. Trujillo was not available in July and therefore does not demonstrate that she remained unavailable a month later at the time of defendants trial. Other than the phone calls, there is no evidence to suggest that the prosecution made an effort to secure Ms. Trujillos attendance at trial by offering her assistance to travel from Mexico. (See People v. Sandoval (2001) 87 Cal.App.4th 1425, 1428-1429, which notes that in 1987 the United States and Mexico entered into a treaty that provides for cooperation between the two countries in criminal matters and includes several methods to obtain the testimony of a witness including transporting a cooperative witness to the United States to testify, and also enlisting the aid of Mexican authorities to invite a witness in Mexico to come to California to testify, an invitation that apparently includes an explanation of the expenses that are reimbursable.) As the Supreme Court stated in Cromer, [T]he term due diligence is incapable of a mechanical definition, but it connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.] Relevant considerations include whether the search was timely begun [citation], the importance of the witnesss testimony [citation], and whether leads were competently explored [citation]. (Cromer, supra, 24 Cal.4th at p. 904.)

Because she was the only witness, Ms. Trujillos testimony was crucial to the attempted robbery charge alleged in count 2. Therefore, the district attorney should have made more than what in our view was a perfunctory effort to secure Ms. Trujillos attendance at defendants trial. Accordingly, we conclude that the trial court erred in admitting Ms. Trujillos preliminary hearing testimony at trial because the prosecution did not use due diligence to secure her appearance in court, and we will reverse defendants conviction on count 2.^[10]

2.

LESSER INCLUDED OFFENSE INSTRUCTIONS

Defendant contends that the trial court should have instructed the jury on attempted theft and theft as lesser included offenses to the crimes of attempted robbery and robbery, charged in counts 2 and 3, respectively. Although we are reversing defendants conviction on count 2, the reversal does not preclude a retrial on that charge. Therefore, we must address defendants claim with respect to both counts 2 and 3, in the event the district attorney retries defendant on the attempted robbery charge.

The principles are well established. Theft is a lesser included offense of robbery, which [latter offense] includes the element of force or fear. (See People v. Turner (1990) 50 Cal.3d 668, 690.) It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.] [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)

Defendant testified at trial that he was panhandling when he went into each of the food establishments and that he did not use force or fear to obtain money. Defendant explained that people are more inclined to give him money when he panhandles inside restaurants because they think he will use the money to buy food. Defendant testified that he went up to the counter at Taco Bell and although he could not recall exactly what he said, he intended to tell the lady behind the counter that he wanted some money. When other customers came in and the lady walked away from him, defendant left. Defendant also asked for money when he walked up to the counter in Arbys. When Ms. Brown came over, she had money in her hand and defendant asked her to give him some. Ms. Brown complied and then opened a cash register and gave defendant more money. Defendant denied that he threatened anyone and also denied that he acted as though he had a gun, although he could not recall whether he had his hands in his pockets at Arbys. Defendant stated that he had not robbed anyone and explained that he took the money from Arbys [b]ecause they gave it to me. Defendant also admitted to the police that he was guilty and that he took the money, but he never said that he had robbed anyone.

Defendant argues here, as his attorney argued to the jury in closing, that he did not intend to take money by force or fear, and that he was only guilty of theft because he walked out of Arbys with money that did not belong to him. Defense counsel argued that defendant admitted to the police that he was guilty of taking the money I did it. I am guilty. I took the money but he was not guilty of robbery. Defendant contends that his testimony constitutes substantial evidence that he did not have the intent to take money by force or fear, and therefore the trial court should have instructed the jury sua sponte on attempted theft and theft as lesser included offenses to the charged crimes.

We agree that defendants testimony is sufficient to warrant instructing the jury on attempted theft and theft as lesser included offenses to the charged crimes because that testimony raises a question of whether he used force or fear, an essential element of robbery.^[11] If on remand, the district attorney retries defendant on count 2, the attempted robbery charge, and defendant again testifies as he did here, the trial court should instruct the jury on attempted theft as a lesser included offense.

The remaining issue we must address is whether the trial courts failure to instruct on theft as a lesser included offense to the crime of robbery charged in count 3 was prejudicial in that based on an examination of the entire record it appears reasonably probable the defendant would have achieved a more favorable result had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 149.) We are persuaded that the error was harmless for reasons we now explain.

In addition to the testimony of Pamela Brown, recounted above, that defendant created the impression he had a gun in his pocket and that he would use it unless she quickly opened the cash register, defendant also admitted during cross-examination that he did not tell any of the three investigating police officers that he had only been panhandling. Defendant also admitted that he heard Anthony Silva, the Arbys employee, yell for someone to call the police after Pamela Brown handed the money to defendant. In addition, one of the investigating police officers testified that defendant admitted he had entered Taco Bell with the intent to rob the place but could not get the words out so he left and went to Arbys to rob that business.

Defendants contrary claim notwithstanding, in view of the above noted evidence, it is not reasonably probable the jury in this case would have reached a result more favorable to defendant, i.e., found him guilty of theft rather than robbery, if the trial court had instructed the jury on theft as a lesser included offense. Accordingly, we conclude that failure to instruct the jury on theft as a lesser included offense was harmless with respect to defendants conviction on count 3 for robbery.

DISPOSITION

Defendants conviction on count 2 for attempted robbery is reversed and the matter remanded to the trial court for further proceedings. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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^[1]The jury found defendant not guilty on count 1, which charged that on September 25, 2000, defendant robbed Little Caesars Pizza and its employee Raul Flores.

^[2]All further statutory references are to the Penal Code unless indicated otherwise.

^[3]Defendant states in his opening brief that the appeal is from a case in the Riverside County Superior Court. In fact, the case involves events that occurred in San Bernardino and the appeal is from a case filed in San Bernardino Superior Court.

^[4]Brown misunderstood Silva and believed that he was calling her over to help defendant; in fact Silva was attempting to warn her to leave the store.

^[5]As previously noted, defendant challenges that ruling and we address that issue in our discussion, below.

^[6]McKenzie testified at trial after pleading guilty, in accordance with a plea agreement, to being an accessory to the robbery.

^[7]We use the phrase due diligence to refer to both the state and federal constitutional requirements.

^[8]Defendants trial was continued many times, over the course of several years, for a variety of reasons, including questions regarding his competency to stand trial and numerous substitutions of attorneys to represent defendant.

^[9]There is a minute order for February 6, 2004, but it only continues defendants trial date and related court appearances.

^[10]We reject the Attorney Generals assertion that if error occurred it was harmless beyond a reasonable doubt. The evidence the Attorney General contends supports defendants conviction on the attempted robbery charge does not disclose what defendant did other than in general terms and therefore does not establish the elements of the charged crime. To the extent the evidence does describe defendants actions, for example through Ms. Trujillos statement to the police, the evidence is hearsay and inadmissible.

^[11]In arguing otherwise, the Attorney General notes that each victim testified that he or she was in fear. However, the evidence in this case raises a question of whether that fear was the result of the situation in general or the result of defendants conduct, the latter being an essential element of the crime of robbery. (See 211 [Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.].)