P. v. Valle

Filed 3/13/07 P. v. Valle 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Los Angeles County, Charles E. Horan, Judge. Affirmed.

Carlo Andreani, 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, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

I. INTRODUCTION

Defendant, Robert Carlos Valle, appeals from his convictions for: 17 counts of second degree robbery (Pen. Code,^[1] 211); evading an officer with resulting injury (Veh. Code, 2800.3; Pen. Code, 12022.7, subd. (a)); and unlawful taking of an automobile. (Veh. Code, 10851, subd. (a).) The trial court also found that defendant had previously been convicted of two serious felonies. ( 667, subds. (a), (b) (i).) Defendant argues the prosecutor committed misconduct and there was insufficient evidence to support his convictions in counts 10, 16, and 17.

II. FACTUAL BACKGROUND

A. Overview

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.) Between the dates of November 6, 2004 and February 9, 2005, defendant robbed 17 fast food restaurants. On February 9, 2005, defendant stole an automobile and evaded police officers causing serious injury to an elderly pedestrian.

B. Count 10

On January 24, 2005, Loyda Sosa was working at the Hamburger Express restaurant. Defendant approached the counter and ordered a cheeseburger. Defendant then pulled out a paper bag and a silver gun. Defendant said, Give me the money. Defendant then said, Give me the money or Ill shoot you. Ms. Sosa, who was frightened, was unable at first to open the cash register, but finally opened it with the assistance of another employee. Ms. Sosa placed the money in the paper bag, and handed it to defendant, who immediately left. Although Ms. Sosa was unable to identify defendant at trial, she had positively identified him from a photographic lineup on February 11, 2005. Ms. Sosa circled and initialed defendants photograph. Ms. Sosa noted on the identification form: I am sure that this guy is the one. He looked more like that person or I think its him. Ms. Sosa also positively identified defendant at a live lineup on June 22, 2005.

C. Counts 16 and 17

At approximately 8:04 p.m. on February 3, 2005, Salina Ballesteros, Stephanie Riley, and Danielle Chico were working at Farmer Boys restaurant. Ms. Riley, who appeared frightened, spoke to Ms. Ballesteros. Ms. Riley said that someone ordered a cheeseburger, showed a gun, and ordered her to give him the money from the cash drawer. Ms. Ballesteros told Ms. Riley, Just put it in there, just give it to him. Ms. Ballesteros was also frightened. A digital video recording of the robbery was played at trial for the jury. On February 10, 2005, Ms. Ballesteros selected defendants photo from a photographic lineup as the person who committed the robbery. Ms. Ballesteros wrote in the comment section, Suspect Number 1 is the same guy that was at our store last week, the same guy who robbed us. Ms. Ballesteros identified defendant because she recognized his face. At trial, Ms. Ballesteros could not identify defendant.

III. DISCUSSION

A. Alleged Prosecutorial Misconduct

Defendant argues the prosecutor committed misconduct by misstating the testimony of Dr. Mitchell Eisen. Dr. Eisen, a psychology professor, testified for the defense on issues related to memory. During argument, the prosecutor reviewed the relevant witness identifications of defendant. The prosecutor argued that one witness, Mr. Arraiga, was adamant and confident while identifying defendant as the robber. The prosecutor continued: What did Dr. Eisen say about that? That people who are confident are more commonly right. That they are, in fact, more commonly, right. Defense counsel objected, [T]hat misstates the evidence. The trial court responded, I dont recall, frankly, one way or the other, so, jurors, youll have to check your recollections in regards to that testimony.

Preliminarily, the California Supreme Court has held that a reviewing court will generally not review a claim of prosecutorial misconduct unless an objection and request for admonishment was raised at trial; unless a curative admonition would not have obviated the prejudice. (People v. Brown (2003) 31 Cal.4th 518, 553, italics added; People v. Sapp (2003) 31 Cal.4th 240, 279; People v. Navarette (2003) 30 Cal.4th 458, 507; People v.Ochoa (1998) 19 Cal.4th 353, 427.) The Supreme Court has held, The reason for this rule, of course, is that the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instruction the harmful effect upon the minds of the jury. [Citation.] [Citation.] (People v.Cox (1991) 53 Cal.3d 618, 682, quoting People v.Green (1980) 27 Cal.3d 1, 27, disapproved on another point in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8, and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Defendants claim of prosecutorial misconduct as to the prosecutors comments has been waived because defense counsel failed to request a curative admonition. (People v. Sapp, supra, 31 Cal.4th at p. 279; People v. Earp (1999) 20 Cal.4th 826, 858.) An admonition could have cured any harm caused by the prosecutors statement.

Notwithstanding such a forfeiture, we find no misconduct occurred. In reviewing the principles governing findings of prosecutorial misconduct the California Supreme Court has consistently noted: The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] [Citation.] (People v.Hill (1998) 17 Cal.4th 800, 819, quoting People v.Gionis (1995) 9 Cal.4th 1196, 1214; People v.Espinoza (1992) 3 Cal.4th 806, 820, and People v.Samayoa (1997) 15 Cal.4th 795, 841; see also Donnelly v.DeChristoforo (1974) 416 U.S. 637, 642-643; People v.Harris (1989) 47 Cal.3d 1047, 1084, criticized on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.) The California Supreme Court has held: [A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . . . . [He] . . .   . . . is not limited to Chesterfieldian politeness [citation], and he may use appropriate epithets . . . . (People v.Wharton [(1991)] 53 Cal.3d [522] 567-568 [].) [Citation.] (People v.Hill, supra, 17 Cal.4th at p. 819, quoting People v.Williams (1997) 16 Cal.4th 153, 221; People v. Brown, supra, 31 Cal.4th at p. 554.) The Supreme Court recently held: [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Ayala (2000) 23 Cal.4th 225, 283-284.) Furthermore, the California Supreme Court has held that a prosecutors comments in closing argument must be viewed in context with the remainder of the summation. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, reversed on other grounds in Stansbury v. California (1994) 511 U.S. 318, 326; see also People v.Medina (1995) 11 Cal.4th 694, 759-760; People v.Pensinger (1991) 52 Cal.3d 1210, 1250.)

Here, the prosecutors comments were brief and isolated comments in his argument. The comments were proper. Dr. Eisen testified concerning eyewitness identification. Dr. Eisen testified that applied memory researchers had compiled data into meta analyses of the accuracy of individual identifications. Dr. Eisen further testified: And these meta analyses in this area have shown that there are four or five studies out there that have shown that people who are more confident are, in fact, more accurate. But when we look at the bulk of the studies, and there are hundreds out there, when we look at the large groups of studies, there is not a good relationship between confidence and accuracy. [] Whats that mean? Somebody might be 100 percent confident and be absolutely accurate, or they might be 100 percent confident and be dead wrong. [] Now, why is that? It seems that and theres no agreement on why theres not a good relationship here, but it seems at least people are different in how they express their opinions and assert their opinions so some people will be very confident in everything they say. Other people are much more tentative and conservative in the way they express their judgments. So that has something to do with it conceivably. [] But what we know is there isnt a very good relationship between witness confidence and witness accuracy overall. Dr. Eisen specifically said that some of the studies found that those witnesses who are more confident are more accurate about their identification. The Supreme Court has held: It is not . . . misconduct to ask the jury to believe the prosecutions version of events as drawn from the evidence. (People v. Huggins (2006) 38 Cal.4th 175, 207.) As a result, the prosecutor could properly comment upon that testimony.

Moreover, defendant suffered no prejudice as a result of the prosecutors argument. California courts have held that even where prosecutorial misconduct is shown, reversal will not result unless it contributed materially to the verdict in a closely balanced case or is of such a nature that it could not have been cured by a proper and timely admonition. (People v. McDaniel (1976) 16 Cal.3d 156, 176-177; People v. Sassounian (1986) 182 Cal.App.3d 361, 396-397; see also People v. Sandoval (1992) 4 Cal.4th 155, 185.) This was not a close case. Mr. Arriagas identification was confirmed by the identifications made by Maria Santamaria and Ismael Martinez.

B. Sufficiency of the Evidence as to Counts 10, 16, and 17

Defendant argues that that there was insufficient evidence to support his convictions in counts 10, 16, and 17. 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.) 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 p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v.Marshall (1997) 15 Cal.4th 1, 34; People v.Ochoa (1993) 6 Cal.4th 1199, 1206; People v.Barnes (1986) 42 Cal.3d 284, 303; Taylor v.Stainer, supra, 31 F.3d at pp. 908-909.) 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.)

As set forth above, Ms. Sosa was working at the counter when defendant placed his order for a cheeseburger. Defendant then drew a gun. Defendant ordered Ms. Sosa to put the money in a bag. Ms. Sosa had the opportunity to see defendant directly during this time. Ms. Sosa positively identified defendant from a photographic lineup on February 11, 2005. Ms. Sosa circled and initialed defendants photograph. Ms. Sosa noted on the identification form: I am sure that this guy is the one. He looked more like that person or I think its him. Ms. Sosa also positively identified defendant at a live lineup on June 22, 2005 and at the preliminary hearing. Ms. Ballesteros was present when defendant ordered Ms. Riley at gunpoint to place money from the register in a bag. Ms. Ballesteros witnessed the robbery and told Ms. Riley to give defendant the money. Ms. Ballesteros selected defendants picture from a photographic lineup as the person who committed the robbery. Ms. Ballesteros wrote in the comment section, Suspect Number 1 is the same guy that was at our store last week, the same guy who robbed us. Ms. Ballesteros identified defendant because she recognized his face. Defendant argues that Ms. Ballesteros identified another individual depicted as No. 4 in the photographic lineup in exhibit No. 62. We have reviewed the exhibits and find that Ms. Ballesteros positively identified defendants photo depicted as No. 1 in the photographic lineup in exhibit No. 57 as she testified at trial. Although on cross-examination Detective Smiley acknowledged that Ms. Ballesteros identified photo No. 4 in exhibit No. 62. Detective Smileys characterization of Ms. Ballesteross identifications is at odds with her testimony.

The California Supreme Court has held: Identification of the defendant by a single eyewitness may be sufficient to prove the defendants identity as the perpetrator of a crime. [Citation.] Moreover, a testifying witnesss out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendants guilt even if the witness does not confirm it in court. [Citations.] Indeed, an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of court identification: [T]he [out-of-court] identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness mind. [Citations.] . . . [Citations]. [Citation.] (People v. Boyer (2006) 38 Cal.4th 412, 480, original italics, quoting People v. Cuevas (1995) 12 Cal.4th 252, 263-275.)

Although the witnesses were unable to identify defendant at trial, their identifications were corroborated by the similarities between these 2 robberies as well as the other 15 violations of section 211 for which defendant was convicted. The jurors heard evidence of the modus operandi wherein defendant went into a fast food restaurant, ordered a cheeseburger, then drew a silver weapon and demanded that money be placed in a paper or plastic bag. In addition, a blue down Ecko jacket, similar to the one worn by the robber in the video tape of the robbery in counts 16 and 17 and as described in other robberies, was found in the apartment of Johnny Rubalcava, defendants friend and passenger during the high speed chase. There was evidence: defendant had given the jacket to Mr. Rubalcava several weeks before the high speed chase; at defendants request, a toy gun had been placed in the car involved in the high speed chase; and the toy gun had been placed in the car the night before the high speed chase. Substantial evidence supported defendants convictions in counts 10, 16, and 17.

IV. DISCUSSION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

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