P. v. Scott

Filed 5/31/06 P. v. Scott CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Antonio S. Scott was sentenced to a total term of 31 years-to-life following his jury trial convictions on various kidnapping, carjacking and robbery offenses. Scott timely appeals his convictions, contending the trial court erroneously admitted to his prejudice evidence of uncharged offenses. He also contends the prosecution failed to prove the deadly or dangerous weapon allegation based on his use of an unloaded paintball gun during the commission of the offenses. We conclude the trial court erred in admitting evidence of uncharged conduct, but affirm because the error was not prejudicial. We also conclude appellant's sentence was improperly enhanced pursuant to Penal Code section 12022, subdivision (b),[1] and, accordingly, we strike those enhancements.[2]

BACKGROUND

A jury found Scott guilty of carjacking, kidnapping and robbery offenses, and found true the allegation Scott used a deadly and dangerous weapon, to wit, a replica assault weapon. The trial court found true that Scott had a prior felony conviction for second degree robbery. The trial court imposed sentence as follows: Count 8 [carjacking in violation of section 215, subd. (a)], a midterm of 5 years doubled to 10 years for a prior felony pursuant to section 1170.12(c)(1), with a one-year enhancement for use of deadly or dangerous weapon pursuant to section 12022, subdivision (b)(1); Count 7 [false imprisonment with force or violence in violation of section 236], two years concurrent to sentence on count 8 and stayed pursuant to section 654; Count 6 [second degree robbery in violation of section 211], three years concurrent to sentence on count 8; Count 1 [kidnapping in the course of carjacking in violation of section 209.5, subdivision (a)], life in prison with parole eligibility after 14 years with a one-year enhancement for use of deadly or dangerous weapon pursuant to section 12022, subdivision (b)(1); Count 2 [kidnapping for robbery in violation of 209, subdivision (b)(1)], life imprisonment with parole eligibility of 14 years stayed pursuant to section 654, and; Count 4 [second degree robbery in violation of section 211], midterm of three years stayed pursuant to section 654. Count 3 [carjacking in violation of section 215, subdivision (a)] and count 5 [false imprisonment with force in violation of section 236] were dismissed upon the People's motion. A consecutive five year term was imposed pursuant to section 667, subdivision (a) for the prior felony, resulting in a total minimum term of thirty-one years.

At trial, the jury heard evidence of three incidents of carjacking, kidnapping and robbery in the same locale in Oakland in mid-to-late December 2002 against three separate victims, Santiago Buenrostro, Brigido Obregon, and Artemio Saucedo. Scott was charged and convicted of offenses only against Obregon and Saucedo. Before trial, a hearing was held on the People's motion to admit evidence of the Buenrostro crimes pursuant to Evidence Code section 1101, subdivision (b). The trial court ruled evidence of the uncharged Buenrostro conduct could be admitted at trial to show a common scheme or design. The People presented evidence of the uncharged Buenrostro crimes, and the jury was instructed to consider it only if it tended to show a common scheme or plan. The three incidents and other relevant facts are described below.

A. The Charged Offenses

1. December 16, 2002 Incident Involving Victim Brigido Obregon

On December 16, 2002, Brigido Obregon stopped in his white Chevy Blazer at Pak'n Save in Oakland at around 6 p.m. Obregon heard voices behind him, felt what he took to be a gun pushed into his back, and was told to get in the rear of his vehicle. Obregon was placed in the middle of the back seat with a man on either side of him. A woman sat in the front passenger seat and another man was in the driver's seat; all these individuals were African-American. The man in the driver's seat wore a wig, a baseball hat, and his face was covered with a bandana from the nose down.

After Obregon was in the vehicle, the assailants stripped him of money, rings, chain and bracelets. The man in the bandana held a big gun. They drove off, but Obregon could not see where they were going because he was told to keep his head down. After about ten to fifteen minutes, the car stopped and Obregon was taken into an apartment. The three men took Obregon into a bedroom with the window covered by a piece of sheetrock, where he was robbed of his wallet, beeper and shoes. Later, the man in the bandana came into the room and demanded pin numbers for Obregon's credit cards. He was carrying the gun and wearing Obregon's ring and bracelet, and he threatened to shoot Obregon unless Obregon gave him the pin numbers.

Obregon estimated he was held in the apartment for about 20 hours. Eventually, Obregon was placed in his truck, driven close to San Leandro, and left there after his assailants told him not to look where they were going and to wait a few minutes before leaving. After five or ten minutes, Obregon drove home and called the police.

During his captivity at the apartment, and for only seconds on each occasion, Obregon twice observed through the open bedroom door the man in the bandana without his disguise. Obregon did not identify Scott as the man in the bandana from a photo line-up about a week after the incident but did identify the woman as Scott's co-defendant Sandra Miller. When shown the same photo display at the preliminary hearing, Obregon chose two males as possibly being the assailant, one of whom was Scott. At trial, Obregon unhesitatingly identified Scott as the man he described as wearing the disguise and handling the gun. Obregon testified that People's Number 8 (black paintball gun) was the weapon used in the offense, and an arresting officer described the weapon (People's 8) as an assault type pistol that shoots paintballs but not bullets.

2. December 24, 2002 Incident Involving Victim Artemio Saucedo

On December 24, 2002, at around 7:30 p.m., Artemio Saucedo drove his Ford Thunderbird to an apartment on 89th Avenue, Oakland, in response to a for-rent advertisement posted in a local store. Inside the apartment were a man and two women, one heavy set and one thin. Saucedo was kept waiting for a few minutes before the man got up and pointed a gun at him. Saucedo later described the weapon to the police as a big bazooka-like gun and, at trial, identified the black paintball gun (People's 8) as the gunman's weapon. The gunman told the heavy set woman to search Saucedo, and she took his wallet and car keys. At one point someone knocked on the front door and Saucedo was hastily ushered into a bedroom with a mattress on the floor and the window covered by a piece of sheetrock. There, the gunman demanded the correct pin number for Saucedo's ATM card. After obtaining the pin number, the gunman left the apartment, leaving the thin woman alone to guard Saucedo After awhile, the thin woman fell asleep, and Saucedo escaped. Once outside the apartment, Saucedo saw his car was gone, so he ran all the way home and called the police from there. On December 30, Saucedo identified Scott from a photo lineup as the gunman and also identified Sandra Miller as the heavy-set woman who took his wallet and car keys. Saucedo also identified Scott at trial as the gunman at the apartment.

B. Uncharged Incident Involving Victim Santiago Buenrostro

On the evening of December 15, 2002, Santiago Buenrostro was driving his blue 1989 Toyota Corolla on International Boulevard near 88th and 89th Avenues when he stopped at a pedestrian crosswalk. A man got in the rear driver's-side door and put a gun to Buenrostro's head. Another man got in the rear passenger side door and a woman got into the front passenger seat. All were African-American. Buenrostro was ordered to make a right turn and after a few blocks told to stop. During that time, his assailants took his wallet, watch and ring.

While the car was stopped, Buenrostro was pushed into the back seat, and the man who had been sitting in the rear passenger-side seat took over the wheel. The assailants drove around for about twenty or thirty minutes before they stopped at what Buenrostro took to be an ATM machine, because the man who had the gun asked Buenrostro for his pin number. After about an hour, the car stopped somewhere in West Oakland. The man in the back of the car pulled Buenrostro out and threw him on the ground. The two men took his boots. They stood Buenrostro up and walked him to the edge of the lot. Buenrostro started to scream. The men pushed Buenrostro face down in the mud and punched and hit him. Buenrostro pretended to be unconscious, and after he heard the assailants drive away in his car, he stood up and went to the first house he saw to call the police.

At one point while he was still driving the car, Buenrostro tried to open the door to escape. The man behind him struck him on the back of the head with the gun, and the woman in the passenger seat punched him on the cheek with her fist. Buenrostro described the weapon used in the incident as a six-inch blue revolver. Buenrostro identified none of his assailants. He could not identify Scott as one of the perpetrators either at trial or from an earlier photographic line-up. Nor was he able to give a height and weight description to the police following the incident of any of the assailants.

D. Other Relevant Details

On December 18, 2002, Oakland Police Officer John Cowles conducted a search at Apartment 4, 1347 89th Avenue on a matter related to his duties on the Beat Health Unit dealing with problem properties in the community. In a bedroom in the apartment, Cowles found a vehicle registration document stating the license plate and name of the registered owner (Santiago Buenrostro). Cowles stated Scott was not present when he searched the apartment, and he had no information Scott lived at that address. He also stated the police had received several complaints about the apartment being a problem property associated with drugs and prostitution.

On December 23, 2002, Officer Daniel Sakai spotted the blue 1989 Toyota Corolla, license number 2RXV 314, belonging to Santiago Buenrostro, parked in the 1300 block of 89^th Avenue. Officer Sakai testified that the Pak'n Save on Hegenberger Road (where Obregon was abducted) is within a mile or so of the 1300 block of 89th Avenue where he found Buenrostro's vehicle.

On December 27, 2002, Officer Parkinson found Saucedo's light blue Thunderbird parked outside 1347 89th Avenue, an address Parkinson associated with suspected carjacking activities. Parkinson and other officers subsequently went up to apartment 4 at that location and were allowed in by the occupant, Charlotte Johnson. Scott and Sandra Miller were found in a bedroom in the apartment with a mattress on the floor and the window covered with sheetrock. At the foot of the mattress was a black pistol grip type assault gun, together with a smaller handgun.[3] The police handcuffed Scott and Miller and sat them on a couch in the living room. Miller asked for her jacket. Officer Marv Jackson searched the jacket before handing it to Miller. The keys to Saucedo's Thunderbird were found in a pocket of Miller's jacket. Later that day, Officer Jadallah interviewed Scott at the Eastmont Police Station and noticed that Scott was wearing the large gold ring with a Star of David stolen from Brigido Obregon. At trial, Obregon identified the ring as the one taken from him.

Scott did not testify in his defense. In closing argument, defense counsel attacked the reliability of Obregon's and Saucedo's identifications of Scott and argued the prosecution failed to place Scott at the scene of the crimes beyond a reasonable doubt and that police were tipped off about Scott by a drug-dealing informant who was possibly the perpetrator.

DISCUSSION

A. Evidence of Uncharged Conduct

1. Evidence Code § 403(a)

For evidence of the uncharged Buenrostro crimes to be admissible, the trial court first had to find that there was sufficient evidence from which the jury could find by a preponderance of evidence that Scott was one of Buenrostro's assailants. (Evid. Code § 403, subd. (a); People v. Simon (1986) 184 Cal.App.3d 125, 131-132.) We review the trial court's determination on this issue for abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 832-833.)

Scott contends the trial court abused its discretion with respect to the preliminary fact of his involvement in the Buenrostro carjacking and robbery because the only circumstantial evidence linking him to those crimes was: (1) the registration document for Buenrostro's vehicle was found in a bedroom in the apartment where Scott was arrested about ten days later; (2) Buenrostro's vehicle was found on the same block as the apartment where Scott was arrested about four days later. Not so. There was other evidence presented at the hearing which linked him to the Buenrostro crimes. Specifically, only four days after police found Buenrostro's carjacked vehicle, they found Saucedo's carjacked vehicle in the same location, right next to the apartment where they contemporaneously arrested Scott. When police arrested Scott and his female accomplice Miller, they found the keys to Saucedo's carjacked vehicle in Miller's jacket pocket. Nonetheless, it is still a close question whether the trial court abused its discretion by inferring from all the circumstantial evidence that Scott was involved in the Buenrostro carjacking. However, we need not decide whether this evidence provided the trial court with adequate support for its ruling at the 403 hearing because there is a more fatal flaw to the admission of this evidence.

2. Common Scheme or Plan

Scott contends that even if the trial court did not abuse its discretion in linking Scott to the Buenrostro crimes, it erred by admitting evidence of those crimes to show common scheme or plan because evidence of a common plan was irrelevant to the main issue in the case--identity We agree.

In People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), the Supreme Court discussed the different purposes for which evidence of uncharged conduct may be admitted. The Supreme Court stated evidence of uncharged conduct could be introduced to show: (1) intent; (2) common design or plan; or, (3) identity; and noted there are â€