P. v. Martinez

Filed 4/30/07 P. v. Martinez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendants Juan Louis Martinez and Jose Raymon Hernandez robbed a Rite-Aid Store. Juries convicted them of multiple counts of robbery ( Pen. Code, 211; unspecified section references that follow are to the Penal Code), assault with a deadly weapon ( 245, subd. (a)(2)), and false imprisonment ( 236), and found true charged firearm enhancements. ( 12022, subd. (a)(1), 12022.5, subd. (a); 12022.53, subd. (b).) The trial court sentenced defendant Martinez to an aggregate prison term of 20 years, and defendant Hernandez to an aggregate term of 24 years 4 months.

On appeal, defendant Martinez asserts that (1) insufficient evidence supports the jurys findings under sections 12022.5 and 12022.53 that he personally used a firearm in the commission of the offenses, (2) the court erred in permitting the prosecutor to amend the information at the close of trial to add allegations under section 12022, subdivision (a)(1), and (3) the court miscalculated the crime prevention fine.

Defendant Hernandez joins in his co-defendants claims and also asserts that (1) the court erred in denying his Batson-Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)), (2) the court erred in ordering restitution fines, and (3) the abstract of judgment does not reflect the restitution/parole revocation fines actually ordered by the court. Defendant Martinez joins in these claims.

We find merit only in defendant Martinezs claim relating to the crime prevention fine, and in defendant Hernandezs claim alleging error in the abstract of judgment. We modify the judgment accordingly and, in all other respects, affirm.

Facts and Proceedings

Defendants Martinez and Hernandez and two others robbed a drug store and held customers and employees at gunpoint. Because the robbers wore bandanas to disguise their appearance, the exact role of each individual in the robbery is not entirely clear. Some of the robbers were agitated and repeatedly threatened the victims. One robber, however, was described as very nice and kind. He reassured the victims that they would not be hurt and spoke to them calmly. Several victims identified this individual as defendant Martinez.

When sheriffs officers arrived, one of the robbers tried to hide in a Christmas tree display in front of the store but was apprehended. No gun was found in that area. Defendants and a third robber ran out of the back of the store, and through the backyards of several nearby houses. Police officers caught them in one of the yards, and found two guns (a revolver and a semi-automatic) hidden in the bushes.

A 21-count information charged defendants with multiple counts of robbery, assault with a deadly weapon, and false imprisonment. Each count also alleged that defendants personally used a firearm during the commission of these offenses. Defendants were tried together with separate juries. One jury convicted defendant Hernandez of all counts and the other convicted defendant Martinez of all but one of the robbery counts. The juries also found true the charged enhancements.

This appeal followed.

Discussion

I

Appeal of Defendant Martinez

Defendant Martinez raises three claims on appeal. First, he contends the evidence is insufficient to support the personal use enhancements. Second, he challenges the courts decision at the close of trial permitting the prosecution to add an additional enhancement to each count charging each defendant with being a principal in an offense in which any principal is personally armed with a firearm. ( 12022, subd. (a)(1).) Finally, defendant contends that the court erred in imposing a crime prevention fine. Defendant Hernandez joins in any of Martinezs claims pertinent to his case and beneficial to him. We discuss each contention in turn.

A. Sufficiency of the Evidence

In addition to convicting defendant Martinez of 20 of the 21 counts charged in the information, the jury also found that he personally used a firearm in the commission of these offenses. ( 12022.5, subd. (a) [counts 6-21]; 12022.53, subd. (d) [counts 1-4].) On appeal, Martinez contends there was insufficient evidence to support these enhancements. Specifically, he asserts that there was insufficient evidence that the gun he brandished was a real firearm and not a BB gun or toy. We hold the evidence was sufficient.

The definition of a firearm for purposes of the personal use enhancements is found in section 12001, subdivision (b): As used in this title, firearm means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion. Excluded from this definition are instruments such as gas-operated pellet or BB guns. (People v. Vasquez (1992) 7 Cal.App.4th 763, 767.)

The court instructed the jury that [t]he word firearm includes a pistol, revolver, semi-automatic, or other handgun. The word firearm does not include a BB gun or pellet gun. The firearm need not be operable. [] The term personally used a firearm . . . means that the defendant must have intentionally displayed a firearm in a menacing manner. The court emphasized that [t]o find the defendant liable under this instruction he must have used the firearm himself.

In arguing that there was insufficient evidence to support the jurys findings on the personal use enhancements, defendant emphasizes that one witness described defendants gun as resembling her sons BB gun, and another could not say whether the two or three guns he saw were real or toys. Defendants focus is misplaced.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]

Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (People v. Jones (1990) 51 Cal.3d 294, 314.) The same standard applies whether the prosecutor relies on direct or circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Whether a defendant used a firearm . . . is a question for the trier of fact. [Citations.] The character of the weapon may be shown by circumstantial evidence. [Citation.] From testimonial descriptions of the weapon and its role in the commission of a crime, a jury may draw a reasonable inference of guilt. Reasonableness of the inference depends upon the adequacy of the descriptions. (People v. Hayden (1973) 30 Cal.App.3d 446, 451-452, disapproved on other grounds in People v. Rist (1976) 16 Cal.3d 211, 223, fn. 10.)

In arguing that there was insufficient evidence that the gun he used was in fact a real gun and not a BB gun or toy, defendant Martinez focuses on the testimony of two of the victims. Alysia G. testified that defendant Martinez was the soft-spoken, nice robber, and was a calming influence as he led Alysia and another customer, Rhonda L., to the front of the store. Alysia had no experience with firearms, but said that the gun defendant used was not a revolver and was longer than either the revolver or semiautomatic recovered by the police. She said that it was the same size and shape as her sons BB gun and that she could not be sure that it was not a BB gun.

The stores night manager testified that he saw two or three guns during the course of the robbery. In response to a question from defense counsel, the manager said he could not tell if any of the guns were real. However, he later clarified that he had experience with guns and that the weapons used by the robbers looked real to him.

These were not the only witnesses to describe Martinezs gun. Rhonda L., the customer who was shopping near Alysia, identified defendant Martinez as the robber who escorted them to the front of the store. Rhonda had experience with firearms and said Martinez had what appeared to be either a .22 or .38. She said that either of the guns recovered by the officers could have been the gun Martinez had, but thought that Martinezs gun was a revolver with a longer barrel.

The stores security guard testified that all four robbers carried guns, and he identified defendant Martinez as carrying a .38 revolver. He thought one of the guns recovered by the officers could have been carried by Martinez.

The security videotape showed that at least three of the four robbers entered the store with guns. No gun was found in the front of the store, where one of the robbers tried to hide, but two guns were found in the yard where the other three perpetrators (including defendant Martinez) were captured. Officers explained that in searching the surrounding areas, they did not search garbage cans, roofs, or other places where a weapon might have been discarded.

Martinez himself initially told officers that there were three guns involved in the robbery and that the perpetrator caught at the front of the store did not have a weapon. He then changed his statement and said that only two guns were used in the crime. At no time did he suggest that he had used a BB gun or toy weapon.

Moreover, the prosecutor argued that the witnesses might have misidentified Martinez. He suggested that Martinez was not the nice robber, but was actually one of the robbers who stayed at the front of the store and threatened the victims with a gun.

Looking at the record as a whole, we conclude that substantial evidence supports the jurys findings that Martinez used a real firearm in the commission of the offenses. Defendants claim to the contrary is unavailing.

B. Amendment of the Information

At the end of trial, the prosecutor sought to amend the information to conform to proof and add enhancements to each count under section 12022, subdivision (a)(1). That statute increases the punishment for any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm. Over defendants objections, the court allowed this amendment.

On appeal, defendant Martinez contends this ruling was erroneous. However, as he expressly notes, this contention is at issue only if his first claim is successful and the personal use enhancements are stricken. If defendant personally used a firearm, an allegation relating to a principal being armed is superfluous. Our conclusion that substantial evidence supports the personal use enhancements obviates the need to address this point further.

C. Crime Prevention Fine

In imposing sentence, the trial court ordered defendant Martinez to pay a $40 crime prevention fine pursuant to section 1202.5. Martinez contends that this fine must be reduced to $10 because section 1202.5 permits a fine of only $10 per case. The People properly concede the error.

Section 1202.5, subdivision (a) provides: In any case in which a defendant is convicted of any of the offenses enumerated in Section 211 . . ., the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. These funds are to implement, support, and continue local crime prevention programs. ( 1202.5, subd. (b).)

Although this case involved multiple offenses and multiple counts, it was one single case. (See 954.) Under the express language of section 1202.5, only one $10 fee can be imposed per case. This is unlike other statutes that impose separate fees or fines for each offense. (E.g., 290.3 [requiring imposition of a $300 fine for the first conviction of an enumerated offense and $500 for each subsequent conviction]; Health & Saf. Code, 11372, subds. (a), (d) [requiring a criminal laboratory fee for each offense]; Health & Saf. Code, 11372.7, subd. (a) [requiring a drug program fee for each separate offense].)

The $40 crime prevention fine ordered by the court must be reduced to $10.

D. Joinder by Defendant Hernandez

In a two-sentence argument, defendant Hernandez joins in any of defendant Martinezs claims that are pertinent to his case and beneficial to him. There are none.

Martinezs argument challenging the sufficiency of the evidence relates exclusively to his involvement in the robbery, not the role played by defendant Hernandez. Whether Martinez personally used a weapon is irrelevant to the question of whether Hernandez used a gun. Nor does Martinezs second argument, relating to the amendment of the information as it affected Martinez, have anything to do with Hernandez. Finally, Martinezs third claim involves the miscalculation of the crime prevention fine. But there was no similar miscalculation in Hernandezs case, in which the court properly ordered only a $10 crime prevention fee.

In short, the issues raised by defendant Martinez are neither pertinent nor beneficial to defendant Hernandez.

II

Appeal of Defendant Hernandez

Defendant Hernandez raises three claims on appeal. First, he asserts that the trial court erred in denying his Batson-Wheeler motion. Second, he contends that the court erred in calculating restitution/parole revocation fines. Finally, he contends that even if these fines were correct, the abstract of judgment must be corrected because it reflects an amount different from that ordered by the court. Defendant Martinez joins in all claims that would affect the judgment in his case.

A. Batson-Wheeler Motion

After the prosecutor excused two potential jurors with Hispanic surnames, defendant Hernandez objected to this use of peremptory challenges, citing Wheeler. (See People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [objection under Wheeler preserves federal claims under Batson].) The trial court decided there had been a prima facie showing of a violation of Batson and Wheeler, but accepted the prosecutors explanation for its actions and denied defendants motion. On appeal, defendant Hernandez contends the courts ruling was erroneous. We disagree.

The use of peremptory challenges to remove prospective jurors because of their race or gender violates both the federal and the California Constitutions. [Citations.] The United States Supreme Court has set out a three-step process to be followed when a party claims that an opponent has improperly discriminated in the exercise of peremptory challenges. First, the complaining party must make out a prima facie case of invidious discrimination. Second, the party exercising the challenge must state nondiscriminatory reasons for the challenge. Third, the trial court must decide whether the complaining party has proved purposeful discrimination. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 104.)

When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.] (People v. Jurado, supra, 38 Cal.4th at p. 104.)

Defendants claims center on two potential jurors, A.D. and E.O.

A.D. was 25 years old and had a high school education. Her work for SBC entailed driv[ing] around and spray[ing] paint where the phone cable is on the ground, so when people are digging, they dont hit it. She had three cousins who had faced criminal charges, including two who were in prison for burglary. A.D. had no prior jury experience.

Another juror, E.O., worked for a wireless company, where she did troubleshooting. She also analyzed bills and resolved customer disputes. She had previously served on a jury that did not reach a verdict. She nonetheless described it as a very positive experience because we followed the judges instructions and we listened to both sides of the story. When asked if she could be a fair juror, E.O. replied that she could, adding that she strongly believed in the jury system and thought it to be her patriotic duty to be open and objective. She said that she wanted to serve on this jury, commenting that not only did she believe in the right to a fair trial but also that she believed strongly in voting. She said that she was a permanent absentee voter and that willingness to participate especially in a jury trial was essential for our government to stay alive and to flourish.

The prosecutor exercised peremptory challenges against both A.D. and E.O., and defense counsel objected, noting that both potential jurors had Hispanic names. The trial court concluded that defendant had made a prima facie case under Batson-Wheeler, and asked the prosecutor to justify its actions.

The prosecutor explained that A.D. was very young, younger than most of the panel members, younger than I would like to see on my juries, and she is young, and with no life experience. She was not married and had no children. She had only a high school education, and her job did not carry many responsibilities. She had cousins who were incarcerated. She was very soft-spoken, and the prosecutor did not believe that she was the type of person who would make a good deliberating juror.

As to potential juror E.O., the prosecutor stated, Quite frankly, I found [E.O.] to be kind of a strange person. I didnt feel she was a person I could relate to on any level. [] I thought it was very odd that she was previously on a jury . . . that resulted in a hung jury, and she thought the jury did a fantastic job. I find that very odd. []  I think that a more responsible juror might . . . feel some frustration to it. Her whole attitude caused me to be a little bit unnerved. I did not get a good feeling from her. [] I didnt feel like I could relate to her.

The trial court accepted the prosecutors explanations about A.D. given her family situation, and her age, and her lack of life experience. The court added that the situation would have been different if [A.D.s] life experience, as uncomplicated as it may seem, didnt involve family members, not just one, but three cousins who were involved in the criminal justice system.

The court also accepted the prosecutors explanation for excusing E.O. The court commented on E.O.s unsolicited remarks as a champion of civic responsibility, noting that E.O. appears to be very enamored with the system. The court concluded: I dont think its unusual for . . . the DAs office to want someone, people to work together as a group, and for not real strong personalities to be involved in the deliberation process, because that can certainly impact peoples willingness to come forward and proffer their opinion. []  [E.O.s] statements are in the record. And at this time, I accept the Peoples reason that she presented in an odd fashion.

The court denied defendants Wheeler motion. Defendant asserts this ruling was erroneous.

The trial court carefully examined the prosecutors proffered reasons for these two peremptory challenges and concluded that legitimate reasons supported the prosecutors actions. A.D. was young, inexperienced, and had relatives in prison. E.O.s evaluation of her prior jury service and her eagerness to serve in this case struck the prosecutor as odd. Given that substantial evidence supports these determinations, we defer to the trial courts ability to distinguish bona fide reasons from sham excuses. (People v. Ward (2005) 36 Cal.4th 186, 200.)

Defendant suggests that the prosecutor should have asked questions of the jurors, particularly E.O., to clear up any areas of concern. Defendant cites no authority to support his belief that the prosecutor was required to engage in such a dialogue before exercising a legitimate peremptory challenge.

Defendant contends that the prosecutors reasons for challenging A.D. were not credible because other jurors whom the prosecutor did not challenge were also young, inexperienced, or had relatives who had been incarcerated. Even if we assume that a comparative juror analysis is appropriate, defendant does not identify anyone who expressed similar responses on all of these topics. (See People v. Jurado, supra, 38 Cal.4th at p. 105.) None of the other seated jurors had several relatives incarcerated in prison, a factor the trial court found particularly compelling, and none shared the same combination of characteristics possessed by A.D.

In a similar vein, defendant asserts that the prosecutors reasons for dismissing E.O. were pretextual, as evidenced by the fact that a seated juror found a prior experience on a hung jury to be interesting. But E.O. did not say she found her experience on a hung jury interesting; she said it was a very positive experience. An interesting experience and a very positive experience are not synonymous terms, particularly since we have only a written record to review and cannot hear the inflections or see the facial expressions that accompanied these statements. Moreover, the seated juror did not express the same strong sentiments that E.O. did about civic responsibilities, another part of E.O.s personality that the prosecutor found odd. A peremptory challenged based on a jurors demeanor or other intangible factors may nonetheless be legitimate. (See People v. Ward, supra, 36 Cal.4th at p. 200.)

Defendants claims under comparative analysis fare are not persuasive. Substantial evidence supports the trial courts decision rejecting defendants Batson/Wheeler challenge.

B. Amount of Restitution/Parole Revocation Fines

The probation report prepared for defendant Hernandez recommended an aggregate prison term of 37 years 4 months, a restitution fine of $7,600, and a parole revocation fine in the same amount. The trial court, however, rejected this recommendation and instead imposed an aggregate sentence of 24 years 4 months. The court then reduced the restitution fine to $4,800, which is the minimum of $200 per year, times the 24 years, and set an identical parole revocation fine. The court imposed a $10 crime prevention fine, but waived other fines and fees.

On appeal, defendant Hernandez contends that the court was unaware that it could impose restitution/parole revocation fines in an amount less than $200 per year of sentence. Defendant argues that because the court clearly intended to impose the statutory minimum fines, the restitution/parole revocation fines must be reduced to the statutory minimum of $200 each. We do not agree.

Absent extraordinary reasons, the trial court must impose a restitution fine in an amount set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . . ( 1202.4, subd. (b)(1).) The court must also impose a parole revocation fine in the same amount for every person convicted of a crime whose sentence includes a period of parole. ( 1202.45.) This fine is suspended unless parole is subsequently revoked. (Ibid.)

The statute offers one possible formula for calculating a restitution fine, suggesting that a court may determine the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted. ( 1202.4, subd. (b)(2).)

Defendant Hernandez contends that the court did not understand that this formula was advisory, not mandatory, and therefore did not properly exercise its discretion. Nothing in the record supports this view. On a silent record, the trial court is presumed to have been aware of and followed the applicable law when exercising its discretion. [Citations.] The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion. [Citations.] (In re Jacob J. (2005) 130 Cal.App.4th 429, 437-438.)

Here, contrary to defendants suggestion, the court did not mechanistically apply the formula outlined in section 1202.4, subdivision (b)(2). Although the court set the fine amount by multiplying the minimum fine of $200 by the number of years in defendants sentence, it did not utilize the second step of the formula to multiply that amount by each count for which defendant was convicted, a step that would have resulted in a fine far exceeding the statutory maximum ($200 x 24 years x 21 counts = $100,800).

We also take issue with defendants assertion that the court clearly intended to impose the statutory minimum fines. Defendants claim is apparently based on the fact that the court used the word minimum in explaining that the $4,800 fine was the product of the number of years of defendants sentence times the minimum of $200 per year. Describing a $200 fine as the statutory minimum does not reflect an intent to impose the lowest possible fine.

There is no indication that the trial court misunderstood the scope of its discretion, and defendant therefore cannot demonstrate error. (In re Jacob J., supra, 130 Cal.App.4th at pp. 437-438.)

C. Abstract of Judgment

Defendant Hernandez argues that if the restitution and parole revocation fines are upheld, the abstract of judgment must nonetheless be corrected. The People agree.

Although the trial court imposed restitution and parole revocation fines of $4,800 each, the abstract reflects fines of $7,600, the amount originally recommended in the probation report. The abstract must be modified to reflect the courts actual order.

D. Joinder by Defendant Martinez

Defendant Martinez joins in any claims raised by defendant Hernandez that would affect the judgment in [his] case. None exists. The Batson-Wheeler issue implicated only defendant Hernandezs jury, and the issues relating to restitution/parole revocation fines and the abstract of judgment are unique to defendant Hernandez.

Disposition

As to defendant Martinez, the judgment is modified to reduce the crime prevention fine under section 1202.5 from $40 to $10. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

As to defendant Hernandez, the trial court is directed to prepare a corrected abstract of judgment reflecting the imposition of a $4,800 restitution fine and $4,800 parole revocation fine, and to forward a certified copy to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed as to both defendants.

HULL, J.

We concur:

SCOTLAND, P.J.

SIMS , J.

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