P. v. Robles
Filed 4/18/07 P. v. Robles CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. RONALD ROBLES, Defendant and Appellant. | D048357 (Super. Ct. No. 189388) |
APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed.
A jury convicted Ronald Robles of four counts of first degree residential burglary (Pen. Code, 459, 460).[1] The trial court found that Robles had suffered one prior serious felony conviction and one prior strike, and sentenced him to 15 years in prison.
Robles appeals, contending that the trial court: (i) abused its discretion in denying his new trial motion, which contended that newly discovered evidence necessitated a retrial; (ii) erroneously ruled that the prosecution would be permitted to impeach him if he testified with two prior convictions that were more than a decade old; (iii) and erroneously ordered that he pay restitution for the benefit of a private insurer. We conclude that these contentions are without merit, and affirm.
FACTS
Robles was convicted of four separate burglaries that occurred between February 1 and March 1, 2005. The evidence with respect to each of those burglaries was as follows.
A. The Kelemen Burglary
On February 1, 2005, Kelly Kelemen returned to her home in Rancho Penasquitos to discover that someone had forced entry, ransacked the house and stolen a number of items from inside. Kelemen asked Andres Funes, a construction worker who was building a room addition at a nearby house, if he had seen anything. Funes informed her that during the time Kelemen was gone, he observed a man exit the home carrying two bags and get into a black 2002 Toyota Tacoma pickup truck, which resembled one that Funes owned. As Funes was obtaining some tools from the back of his truck, the man drove by and, from about 10 feet away, told Funes he had a nice truck. In a photographic lineup, at the preliminary hearing and at trial, Funes identified Robles as the man he had seen leaving the Kelemen house.
B. The Blando Burglary
On February 10, 2005, Ernesto Blando was working on his computer at his home in Sabre Springs when he heard a clicking noise. He went to the living room where he noticed Robles outside in the gated backyard of the house, crouching and trying to pry open the rear sliding door. Robles was carrying a red clipboard as well as a prying tool, and had torn a hole in the screen door to access the sliding door. Blando yelled at Robles to "get the hell out of here." Robles ran towards the front of the house, got into a black pickup truck and drove away. In a photographic lineup, at the preliminary hearing and at trial, Blando identified Robles as the man who had tried to get inside his house.[2]
C. The Nguyen Burglary
On February 15, 2005, Kinh Nguyen was upstairs reading a newspaper when he heard the doorbell ring. He looked outside and saw a truck parked outside his house. Later, Nguyen heard a noise, like someone breaking in. He ran downstairs and saw Robles in the house. Robles was holding a small metal stick or crowbar. Nguyen asked Robles what he was doing; Robles backed up, left through an open window and fled in the truck.
D. The Lee Burglary
On February 18, 2005, Hwan Lee heard several rings of the doorbell, looked outside and saw Robles with a utility belt standing next to a pickup truck. Later, Lee again heard several rings of the doorbell, but did not answer.
After about 10 minutes, Lee heard the wooden blinds near the entrance to his home "flash open." Lee went back downstairs and saw that the window had been opened. He went outside and saw Robles coming around a corner. Robles appeared nervous. Lee asked Robles if he had opened the window, and Robles said he had not and added that he was there to fix the fence. Lee asked Robles for some identification; Robles said he did not have any and left. In a photographic lineup and at trial, Lee identified Robles as the person he had seen at his house.
E. The Search of Robles's Home
On March 1, 2005, police executed a search warrant at Robles's home, which was located only a few minutes' drive from the four residences that were robbed. They located a tool belt, tools and a red clipboard. They also found a black Toyota Tacoma truck registered to Robles's wife, Grace Robles. Two police detectives testified that the truck's distinctive configuration, consisting of a custom bed cover and "brush guard" bumper, was unusual.[3]
DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion in Denying Robles's New Trial Motion
Robles contends that his convictions must be reversed because the trial court abused its discretion in denying his motion for a new trial. We evaluate this argument after setting forth the applicable procedural history.
A. Robles's Motion for a New Trial
After his convictions, Robles moved for a new trial on the ground of newly discovered evidence. In the motion, Robles highlighted the trial testimony of a prosecution witness that fingerprint evidence recovered from the burglaries was inconclusive; the motion asserted that further investigation had revealed that the inconclusive nature of the evidence was a result of an inadequate sample from Robles. Robles submitted an affidavit of a fingerprint expert who explained that when compared to an adequate sample, it was clear that a palm print lifted from the Lee burglary did not match that of Robles. The expert also stated that she was able to exclude Robles as the donor of latent fingerprints obtained from the scene of a number of other burglaries that had not been the subject of Robles's trial. The defense motion argued that had the newly discovered evidence been presented at trial, Robles would not have been convicted.
After a hearing, the trial court denied the motion for a new trial, ruling that the evidence submitted by the defense was not sufficient to establish that if a retrial were held a different result would be probable.
B. No Abuse of Discretion Appears
Robles contends that the trial court abused its discretion in denying his new trial motion because the newly discovered evidence he submitted with the motion was material and was "precisely the type of evidence that the courts have historically relied upon in granting a new trial." We disagree.
To demonstrate an entitlement to a new trial on the ground of newly discovered evidence, a defendant must show:
" ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' "
(People v. Martinez (1984) 36 Cal.3d 816, 821 (Martinez), quoting People v. Sutton (1887) 73 Cal. 243, 247-248; 1181 [allowing trial court to grant new trial on the ground that "new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial"].) The decision as to whether the defendant has made the requisite showing with respect to these factors is vested in the trial court in the first instance, and " ' "rests so completely within th[at] court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
In the instant case, we conclude that Robles has failed to demonstrate a " ' "manifest and unmistakable abuse of discretion" ' " in the trial court's denial of his new trial motion. (Delgado, supra, 5 Cal.4th at p. 328.) The trial court could reasonably have concluded, as it did, that the evidence submitted with the new trial motion was not such that a different result was probable upon a retrial.
We reach this conclusion for two related reasons. First, the evidence submitted by the defense was only marginally probative on the issue of Robles's guilt. As Robles concedes, the fingerprint evidence he presented in his new trial motion related to only one of the four burglaries for which Robles was convicted the Lee burglary.[4] Further, even with respect to the Lee burglary, the evidence did not establish that Robles was not the burglar, but merely demonstrated that someone else, including possibly the victim himself, left a palm print at the Lee house.[5]
Second, the "newly discovered"[6]evidence regarding the palm print did not directly impact any of the evidence that the prosecution relied on to establish Robles's guilt. The prosecution's case rested not on fingerprint evidence but on eyewitness identification testimony and Robles's possession of items (e.g., a red clipboard, utility belt and distinctive truck) that matched those used in the burglaries.[7] At trial, the inconclusive fingerprint evidence was brought out by the prosecutor defensively to argue the point that unlike on the television show CSI, the police generally did not discover a burglar's fingerprints at the scene of a crime.[8] Thus, the newly discovered evidence that Robles's palm print did not match the print left at the Lee residence failed to significantly detract from the prosecution's case.
For these reasons, we cannot conclude that the trial court abused its discretion in ruling that the newly discovered evidence presented by the defense did not warrant a new trial. The evidence was only marginally exculpatory and did not significantly impact the prosecution's case against Robles. Consequently, the trial court acted within its discretion in concluding that the evidence was not " ' "such as to render a different result probable on a retrial." ' " (Martinez, supra, 36 Cal.3d at p. 821.)
II
The Trial Court's In Limine Ruling Allowing Impeachment with Robles's
Prior Conviction Is Not Reviewable
Robles contends that the trial court erred in ruling on a pretrial in limine motion that the Attorney General could introduce evidence of Robles's 1992 and 1995 prior convictions "in the event that he testified at trial." Robles, however, did not testify at trial and, as a result, his prior convictions were never introduced.[9] Consequently, under well-established precedent, Robles cannot challenge the trial court's in limine ruling on the potential use of his prior convictions for impeachment. (See Luce v. United States (1984) 469 U.S. 38, 43 (Luce) ["to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify"]; Collins, supra, 42 Cal.3d at pp. 385-386 ["we . . . adopt the Luce rule as a judicially declared rule of criminal procedure in California"]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1174 ["In Collins, . . . we held that California courts are to follow the federal rule stated in Luce . . . , which held that the denial of a motion in limine to exclude a prior conviction offered for impeachment . . . is not reviewable on appeal if the defendant refuses to testify," citation & fn. omitted].)[10]
III
The Restitution Order Was Not Erroneous
Finally, Robles challenges the trial court's order that he pay restitution in the amount of $3,245.22 on the ground that the restitution was ordered on behalf of an insurance company rather than for any direct victim of Robles's crimes. We disagree.
A. Facts Relating to Restitution Award
In the probation report prepared for sentencing, the assigned probation officer reported that although three of the four burglarized homeowners were not requesting restitution, restitution was appropriate with respect to the Kelemen family as they had incurred a $3,245.22 loss as a result of Robles's burglary. The probation officer noted that the Kelemens had been reimbursed (minus a $100 deductible) by their insurance company, and stated they had "been advised to forward restitution payments to their insurance company." The probation officer's concluding recommendation on restitution, stated that the defendant should "pay victim restitution per [section 1202.4, subdivision (f)] to [the] Kelemens in the amount of $3,245.22."
At sentencing, Robles objected to the restitution request on the ground that the Kelemens had already been made whole by insurance. The prosecutor responded, "I think the law is clear that the insurance company would also have a right to demand that sum. The defendant should be ordered to pay that amount to the Victim Restitution Fund, and they will figure out who to give it to." The court then "noted" the defense objection and, after stating at sentencing that it would make "a general order of restitution," ordered (as reflected in the abstract of judgment) that restitution be paid "to victim(s) per P.O. Reprt to be determined if loss is reported."
B. The Restitution Award Was Proper
Robles's contention that the court ordered an improper restitution award to an insurer rests on a misinterpretation of the record. Properly viewed, the record demonstrates that the trial court ordered restitution to the direct victims of the crime (the Kelemens) regardless of the presence of insurance coverage, as mandated by law.
While there is authority for the proposition that an insurance company that is not a direct victim of crime cannot be awarded restitution, it is clear that the existence of insurance coverage for losses caused by a defendant does not alter the defendant's obligation to pay full restitution to the actual victim, even if this means the insurer will eventually be reimbursed. In fact, the statute governing restitution specifically requires that "[d]etermination of the amount of restitution ordered . . . shall not be affected by the indemnification or subrogation rights of any third party." ( 1202.4, subd. (f)(2); People v. Birkett (1999) 21 Cal.4th 226, 246 ["Thus, except as against the Restitution Fund, the immediate victim was entitled to receive from the probationer the full amount of the loss caused by the crime, regardless of whether, in the exercise of prudence, the victim had purchased private insurance that covered some or all of the same losses. Third parties other than the fund, such as private insurers, who had already reimbursed the victim were thus left to their separate civil remedies, if any, to recover any such prior indemnification either from the victim or from the probationer"]; People v. Hove (1999) 76 Cal.App.4th 1266, 1272 (Hove) [defendant properly required to pay restitution for medical expenses covered by Medicare and/or Medi‑Cal].)[11]
Here, the trial court followed the statutory mandate by ordering restitution regardless of the insurance coverage. While the prosecutor's assertion that the insurer had a "right to demand" restitution was not technically accurate, the court's action of ordering restitution in the amount of $3,245.22 was perfectly proper and, in fact, mandatory under section 1202.4, subdivision (f)(2). The mere "fortuity" that the Kelemens were insured did not alter the fact that Robles, having caused $3,245.22 worth of damage, was obligated to pay restitution in that amount. (Hove, supra, 76 Cal.App.4th at p. 1272.)
DISPOSITION
Affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
[2] Blando's neighbor also testified that about the time Robles fled from Blando, the neighbor observed a black Toyota Tacoma leaving the area and identified Robles as the driver of the truck.
[3] A number of the witnesses had observed a bed cover and/or bumper guard on the truck associated with the burglaries.
[4] Robles appears to contend that evidence that he was excluded as the source of fingerprints found at other uncharged burglaries (for which Robles had apparently been a suspect) is relevant to the instant motion. He fails to explain, however, and we cannot discern how the evidence relating to these uncharged burglaries would be admissible at a retrial, and consequently that evidence does not support his new trial motion.
[5] The defense expert's report submitted with the new trial motion stated that analysis of the latent fingerprints left at the Lee scene revealed that: (i) one of the fingerprints was that of Lee; and (ii) two additional partial print impressions were not those of Robles, but "Hwan Lee could not be eliminated as the source" of those prints.
[6] As we conclude the trial court did not abuse its discretion in denying the new trial motion on the ground that the newly discovered evidence was not sufficient to establish that a different result was probable upon a retrial, we need not address the Attorney General's alternative contention that the motion would also have been properly denied on the ground that the evidence was not "newly discovered."
[7] Thus unlike in Martinez where the newly discovered evidence called into question the value of a palm print that served as the prosecution's sole link between the defendant and the crime, here the defense evidence related to a palm print that was not relied on as evidence of guilt. (Martinez, supra, 36 Cal.3d at p. 822 [new trial required based on palm print related evidence where "[t]he prosecution's case rested entirely on the palm print" and "[n]o other evidence connected defendant to the burglary"].)
[8] The prosecutor mentioned the fingerprint evidence only in passing in closing argument, recognizing that no fingerprint evidence supported Robles's guilt, and that "[i]t would be nice to have the type of results with fingerprints that CSI does, but that's not reality."
[9] Immediately after the court ruled in the in limine motion that two of Robles's three prior convictions would be admissible if he testified, Robles's counsel informed the court that he would likely not testify as a result of the ruling. (See People v. Collins (1986) 42 Cal.3d 378, 387 (Collins) [noting that what the defendant sought was "the right to testify without being impeached by prior felony convictions," but that "[n]o witness, however, has the right to give testimony immune from such challenge"].)
[10] Robles contends that the rule announced in Collins should not apply because "appellate courts have recognized an exception to the rule in Collins where the record does not reflect that the court engaged in the weighing process required by Evidence Code section 352." The sole authority cited for this contention is People v. Flanagan (1986) 185 Cal.App.3d 764. Flanagan, however, does not recognize any exception to Collins. Rather, Flanagan noted that Collins applied only prospectively and relied on a portion of the Collins opinion that announced an alternative review procedure to be applied in cases tried before Collins. (Flanagan, at p. 771.) As Robles was tried almost two decades afterCollins, the prospective rule it announced applies and Flanagan is clearly distinguishable.
[11] Under California law, "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims." ( 1202.4, subd. (f).)
