P. v. Gentry

Filed 4/18/07 P. v. Gentry 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Dennis A. McConaghy, Judge. Affirmed.

Jennifer A. Gambale, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of one count of robbery, one count of dissuading a witness, and the personal use of a firearm in committing these offenses, all of which occurred in March 2001. (Pen. Code, 211; 136.1, subd.(c)(1); 1192.7, subd. (c)(7) and (8); 12022.5, subd. (a); and 12022.53, subd. (b).)^[1] Three other counts were dismissed. All the crimes occurred in the same general vicinity in Corona.

The court sentenced defendant to a total prison term of 13 years, the middle term of three years on count 1 for robbery plus an additional 10 years for the personal firearm use. The court imposed a concurrent three-year sentence on count 2 and stayed the 10-year firearm sentence.

Defendant appeals, contending the trial court erred by allowing testimony from Danny Verdugo regarding defendants suspicious conduct at a Shell station located near the robbery sites. In a related claim, defendant charges prosecutorial error. Additionally, defendant challenges the courts ruling denying his mistrial motion. Finally, defendant also maintains the trial court should have stayed the three-year sentence on count 2 rather than imposing it concurrently with the sentence on count 1. We reject all defendants contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. The Food Cart Robbery

Yolanda Rodriguez testified at trial that defendant robbed her on January 8 and 24, 2001, while she operated a mobile food cart. The first robbery occurred at 114 Business Center Drive in Corona. The second occurred about one-half mile east at 1521 Pomona Road. Rodriguez equivocated when asked to identify defendant. Two witnesses testified they saw a Black male rob Rodriguez the second time. Later, however, they could not identify defendant in a photographic lineup. The jury did not convict defendant on these two robbery counts (counts 4 and 5.)

B. Verdugos Testimony

Danny Verdugo, a forensic technician for the Corona Police Department, testified that, about 12:30 p.m. on March 5, 2001, he observed defendant, a Black man, acting suspiciously at a Shell gas station on South Lincoln Avenue, southeast of the location of the two food cart robberies. Defendant was wearing dark clothes and a head covering. Verdugo copied down the license plate of the red Volkswagen Jetta defendant was driving. Finally, defendant drove away. The next day at the police department, Verdugo identified defendant in a photographic lineup. Verdugo also identified defendant in court.

C. The Dairy Queen Robbery

On the same day, the evening of March 5, 2001, defendant robbed a Dairy Queen where two women, Abigail Schilling and April Richardson, were closing the store for the night. The Dairy Queen was on South Lincoln Avenue, a few blocks south of the Shell station. Defendant used a gun with fluorescent orange or pink markings. While Richardson locked herself in the bathroom, defendant forced Schilling to open the safe so he could remove the money. Defendant also forced Schilling to open the cash register and give him that money. Defendant warned Schilling not to call the police or he would return. Before leaving, he tried to pull the telephone off the wall.

Schilling and Richardson did not identify defendant in court. Richardson could not identify defendant in a photographic lineup. Schilling identified him from a 1999 booking photograph.

D. The Police Search

The police searched defendants home twice in March. The first time was a probation search, during which the police discovered three dark-colored head coverings and eight nine-millimeter rounds. They arrested defendant, who was wearing dark, baggy clothing. On March 14, after the Dairy Queen robbery, the police conducted a second search and found a loaded .25-caliber semiautomatic pistol, black with brown grips, and a .25-caliber semiautomatic pistol with pink grips, which belonged to defendants mother. Richardson thought the pink gun had been used in the robbery. Both Richardson and Schilling said defendants attire when he was arrested was similar to that worn during the robbery.

E. The Defense Case

Defendant testified he had a prior misdemeanor conviction for petty theft. In November or December 2000, he was hired as a temporary worker at Minka Lighting, earning $8.50 an hour. He drove his sisters Jetta. Minka Lighting is located northeast of the locations of the food cart robberies and north of the Shell station and the Dairy Queen but in the general vicinity of all four locations.

Markus Esters testified he was defendants supervisor for three months while defendant was a temporary employee. During that time, defendant worked in the warehouse unloading lighting fixtures from 7:00 a.m. until 3:30 or 5:30 p.m. Defendant wore dark, baggy clothes and a dark cap. His 30-minute lunch break was at noon.

Between January and March 2001, Minka hired defendant permanently as a truck driver and Esters was not his supervisor. As of February 2001, defendant was working as a permanent employee. Defendant worked from 8:00 a.m. to 3:00 p.m., loading the truck at the Minka warehouse, driving 25 miles to another warehouse to unload, performing the trip about six times a day.

On March 5, defendant ate lunch at a MacDonalds and then went to the Shell station where Verdugo observed him. Defendant often visited the Shell station. He may have stopped there to smoke a cigarette or use the bathroom. Because his car did not work in reverse, he would drive in and park in such a way as to avoid being blocked. He admitted he could have acted as Verdugo described.

Defendant said he did not own a gun and the nine-millimeter rounds belonged to his cousin.

II

ANALYSIS

The principal issue at trial involved the identification of defendant as the perpetrator and whether it was logistically possible for him to commit any of the three robberies while working for Minka as a temporary or fulltime employee. For example, defendant contended as a temporary warehouse worker he would not have had time or opportunity to commit the food cart robberies, for which he was not convicted.

A. Verdugos Testimony

Verdugo testified in detail about how he was at the Shell station on March 5, 2001, to use the pay phone when he noticed a Black man drive a red Jetta very slowly into the station. Verdugo watched as the driver scanned from side to side and in all directions. The driver stopped and exited the car. He wore dark clothes and a dark head covering. He was thin, of medium height with some facial hair. Verdugo kept checking on defendant as he walked to and from the station mini-mart. At one point, defendant appeared to be pulling out something from under his sweatshirt.

Relevant evidence establishes logically, naturally, and by reasonable inference material facts such as identity, intent, or motive. (People v. Scheid (1997) 16 Cal.4th 1, 13; Evid. Code, 210.) Furthermore, [t]he trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.] (Schied, supra, at p. 14.) The weight of evidence is for the jury to decide. (People v. Slocum (1975) 52 Cal.App.3d 867, 891.)

On appeal, defendant argues the trial court should not have admitted Verdugos testimony because it was not relevant and constituted improper propensity evidence. At trial, the prosecutor had contended Verdugos testimony was relevant to show defendants alibi concerning the January food cart robberies was wrong and to show why the police suspected defendant of being involved in the March Dairy Queen robbery. Defendants alibi concerning the January crimes was that, as a warehouse worker, he did not have an opportunity at lunch to commit the robberies. The prosecutor reasoned that defendants presence at the Shell station at noon in March 2001 showed he could have committed the crimes in January 2001. Additionally, on appeal, the People argue Verdugos testimony demonstrated defendant knew about the Dairy Queen because of its proximity to the Shell station.

We recognize defendant argues that the Shell incident in March was irrelevant to defendants alibi defense regarding the January lunchtime robberies because defendant was working as a truck driver in March, not as a temporary warehouse worker. Defendant contends he could have been at the Shell, or elsewhere, at lunchtime without it having any significance concerning the January robberies. But, we also recognize that the issue of when defendant became a permanent worker depended on defendants testimony. The jury may not have believed him. Therefore, there was some plausibility to the prosecutors argument that Verdugos testimony could help refute defendants alibi.

Furthermore, there is relevance in the facts that, on the same day defendant robbed the Dairy Queen near the Shell station, Verdugo observed defendant, similarly dressed, and behaving suspiciously. Under these circumstances, it was not a manifest abuse of discretion for the trial court to admit the evidence as more probative than prejudicial. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

B. Prosecutorial Error

In a related argument, defendant complains the prosecutor committed error by asserting to the jury that defendant intended to commit a robbery at the Shell station, proving that he committed the charged crimes.

Prosecutorial error under state law involves deceptive or reprehensible methods to persuade the jury or the court. (People v. Smithey (1999) 20 Cal.4th 936, 960.) Nevertheless, [p]rosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.] In order to preserve a claim of prosecutorial misconduct for appeal, the defense must make a timely objection at trial and request an admonition. [Citations.] In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct. [Citation.] (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145-1146.)

No defense objection was made to the prosecutors argument. But even if the issue was not waived, there was no prosecutorial error. The trial court allowed Verdugo to testify regarding his observations at the Shell station and his belief that defendants furtive behavior was suspicious. Based on Verdugos testimony, the prosecutor offered a reasonable inference that the jury could accept or reject. The court instructed the jury that statements by the attorneys were not evidence. (CALJIC No. 1.02.) It is presumed they followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Additionally, Schilling identified defendant as the Dairy Queen robber and the circumstantial evidence of his clothing and the gun connected him to the crime. The sufficiency of the evidence rendered any error harmless. (People v. Haskett (1982) 30 Cal.3d 841, 866.)

C. Mistrial

Corporal Vicondoa, who conducted the probation search, testified defendant was arrested initially based on some misdemeanor warrants and not the subject robberies. The court admonished the jury to disregard this testimony. The court denied defendants subsequent mistrial motion.

The jury knew defendant was on probation and that was the reason his house was searched the first time. Nothing more was said about the misdemeanor warrants and the jury was advised to disregard Vicondoas testimony. The courts admonition cured any harm. (People v. Hess (1970) 10 Cal.App.3d 1071, 1081.) It is also presumed the jury followed its instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852.) We conclude defendants claim of incurable prejudice lacks merit and the trial court did not abuse its discretion in denying defendants mistrial motion. (People v. Price (1991) 1 Cal.4th 324, 428; People v. Wharton (1991) 53 Cal.3d 522, 565-566.)

D. Section 654

Defendant objects to the three-year concurrent sentence on count 2, arguing it should have been stayed instead. He asserts the robbery and dissuading a witness were incidental to a single criminal objective and section 654 prohibited imposition of a concurrent sentence. (People v. Norrell (1996) 13 Cal.4th 1, 3.)

The court imposed sentence as follows: As to Count 2, the Court does find that to be 654, therefore, I will sentence the defendant to the mid term of 3 years, and 10 years for the gun allegation. However, Im going to say that pursuant to section 654. The court then clarified: Count 2 is not 654, but the use allegation would be.

The trial courts sentence was correct. Where the second crime, dissuading a witness, was gratuitous to the first crime, robbery, the crimes may be separately punished: [A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654. If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate. (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) Here defendant threatened Schilling after the robbery was completed at a point when he simply could have departed. Defendant cannot rely on People v. Mendoza (1997) 59 Cal.App.4th 1333, because in that case defendant was convicted of making a terrorist threat and of dissuading a witness by using the same threat. Quite obviously, the two were the same crime with the same criminal objective, preventing a witness from testifying. (Id. at p. 1347.) Even though they were related, the robbery and the dissuading in the present case were different crimes with different objectives. Section 654 does not operate under these circumstances.

III

DISPOSITION

In the absence of cumulative error that could have affected the verdict, we reject defendants arguments on that issue. (People v. Bloom (1989) 48 Cal.3d 1194, 1232.) We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Richli

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

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