P. v. Benevidez

File 4/12/07 P. v. Benevidez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Los Angeles County. Dewey L. Falcone, Judge. Affirmed with instructions.

William M. Duncan, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted defendant and appellant David M. Benavidez of one count of carjacking. (Pen. Code, 215, subd. (a).)[1] We affirm.

BACKGROUND

At approximately 7:45 p.m. on January 29, 2005, Catherine Castasus left her friends house in Whittier, California and walked out to her silver Volkswagen Jetta. She saw defendant, dressed in black with a hood over his head, walking down the sidewalk toward her. Frightened, she hurried to her car and put the key in the ignition. Suddenly, the drivers side door was pulled open. Defendant was standing in the door, holding a gun pointed at Ms. Castasuss chest. Defendant demanded that Ms. Castasus give him her keys. Ms. Castasus stepped out of the car, shoved the keys toward defendants chest, and fled back to her friends house. Ms. Castasus and her friend called 911 and reported that Ms. Castasuss car had been stolen.

Soon thereafter, the Norwalk Sheriffs Station put out a broadcast regarding the carjacking, describing Ms. Castasuss Jetta, stating its license number, and describing the perpetrator. Sometime after midnight, Officer Carl Martin of the Whittier Police Department saw a silver Volkswagon Jetta pull up beside a 7-Eleven store. Officer Martin observed that the license plate on the Jetta matched that on the carjacked vehicle. Two individuals walked away from the car. One of the individuals matched the description of the perpetrator of the carjacking. When Officer Martin approached in his marked patrol car, the two individuals fled into the yard of a nearby house. Officer Martin apprehended one of the two individuals, but the secondthe one that matched the perpetrators descriptionescaped.

At 3:00 a.m. on January 30, the police informed Ms. Castasus that they had recovered her car. Ms. Castasus went to view the car; she identified a beer bottle and other trash in the car that was not hers. The officers at the scene showed Ms. Castasus the suspect that Officer Martin had apprehended and the gun that the suspect had been carrying. Ms. Castasus stated that the suspect was not the man who had carjacked her, and that the gun the suspect carried was not the gun used by the carjacker.

The car was impounded and later processed by the Los Angeles Sheriffs Department for fingerprint evidence. The Sheriffs Department recovered defendants fingerprint from an unopened beer bottle in a pocket behind the drivers seat. Ms. Castasus identified defendant in both a six-pack photo line up in February 2005 and a live line up in May 2005.[2]

On July 5, 2005, defendant was charged in a one-count information with carjacking. ( 215, subd. (a).) The People also alleged that defendant had personally used a firearm ( 12022.53, subd. (b)), and that defendant had two prior prison terms. ( 667.5, subd. (b).)

On December 1, 2005, the trial court called defendants case for trial. On December 7, after a little more than a day of deliberations, the jury announced that it was deadlocked. The trial court declared a mistrial.

Defendants retrial commenced on April 21, 2006. A jury convicted defendant of the carjacking charge on April 25, 2006. The jury also found true the allegation that defendant had personally used a firearm. Defendant admitted his prior prison terms.

On May 9, 2006, the trial court sentenced defendant to state prison for a term of fifteen years, consisting of the mid-term of five years on the carjacking charge, plus a consecutive ten-year term for the firearm enhancement. The trial court struck the prior-prison-term enhancements. The trial court also ordered defendant to pay $500 in victim restitution ( 1202.4, subd. (f)); a $500 restitution fine ( 1202.4, subd. (b)); a $500 parole revocation fine, suspended unless defendants parole is revoked ( 1202.45); and a $20 court security assessment ( 1465.8, subd. (a)(1).) Defendant received pre-sentence credits of 531 days, consisting of 463 days of actual custody, plus 68 days of conduct credits.

DISCUSSION

We appointed counsel to represent defendant on this appeal. After examining the record, appointed counsel filed an opening brief requesting this court to review the record independently in accordance with People v. Wende (1979) 25 Cal.3d 436. On December 6, 2006, we gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. Defendant submitted a letter dated January 2, 2007 in response to that notice, which this court received and filed on January 8, 2007. Defendant asks this court to consider several issues.

Defendant claims that his appellate counsel failed effectively to research and argue his appeal. We have independently examined the entire record, however, and with the exception of two issues discussed below relating to the calculation of defendants pre-sentence credits and what appears to be a typographical error on the abstract of judgment relating to the court security assessment, we are satisfied that defendants appointed counsel fulfilled his responsibilities, and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

Defendant asserts that his appellate counsel failed to conduct any investigation regarding the suspect that Officer Martin apprehended the morning of January 30th. Appellate courts, however, do not try the merits of the case; our function is to review the trial court proceedings for legal error. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) It is the function of the trial court to determine the facts. (Ibid.) Accordingly, trial counsel, not appellate counsel, has the duty to investigate potentially exculpatory evidence and to present such evidence to the trial court. (See In re Marquez (1992) 1 Cal.4th 584, 603-604.)

If we construe defendants argument to be that trial counsel rendered ineffective assistance, the record does not support that contention. The record contains no information regarding whether or to what extent trial counsel investigated the second suspect, or why trial counsel chose not to present any evidence on that subject. A reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, [a reviewing court] will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. (People v. Weaver (2001) 26 Cal.4th 876, 926.) Accordingly, defendant's assertion that [trial counsel] rendered ineffective assistance of counsel . . . must properly await resolution on a fully developed factual record in a habeas corpus proceeding. (People v. Snow (2003) 30 Cal.4th 43, 118.)

Defendant asserts that he was denied a fair trial because he never had the opportunity to examine either Ms. Castasuss car or the beer bottle from which the Sheriffs Department obtained the fingerprint. The forensic print specialist testified that, in accordance with the Sheriffs Departments standard procedure, he did not collect the beer bottle after processing it for fingerprints, but left the bottle in Ms. Castasuss car. The police released the car to Ms. Castasus on February 16, 2005, before the police turned the matter over to the district attorneys office on February 22 and before the case was filed against defendant on March 9, 2005. Defendant, however, did not raise this issue in the trial court. He did not object to the admission of the fingerprint evidence on this basis, nor does the record contain any request by defendant to inspect either the beer bottle or the car. Defendant has therefore forfeited the issue. (People v. Combs (2004) 34 Cal.4th 821, 845.) Further, defendant does not identify what prejudice he might have suffered, given that he had the opportunity to challenge the validity of the fingerprint identification. (See People v. Gray (2005) 37 Cal.4th 168, 208.)

Defendant contends that he was denied a fair trial because the prosecutor and a police witness referred to defendants prior arrests in front of the jury. When asked by the prosecutor how he prepared the six-pack photo line up, Detective Salcido of the Sheriffs Department testified that once we . . . may know of who might be involved, well run their record; and in the record, it will show recent booking photos along with old booking numbers and arrests. So I like to pull the most recent booking photo, if possible. When the prosecutor asked Detective Salcido when the photo of defendant used in the photo line up was taken, he responded, [I]t was off his most [sic] booking photo. I would have to refer to his record . . . [] . . . to get that date. After establishing that defendant was arrested on February 1, 2005 for this crime, the prosecutor asked, Was the booking photo you used when speaking with the victim in this case . . . , was it from that arrest?[3] Defense counsel did not immediately object, but he objected and moved for a mistrial at a side bar soon thereafter. The trial court denied the motion, concluding that the references were not prejudicial based upon the state of the evidence.

A prosecutors trial conduct 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. (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214.) 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. (People v. Hill, supra, 17 Cal.4th at p.819, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) To preserve a claim of prosecutorial misconduct for appeal, a defendant must timely object in the trial court on the grounds of prosecutorial misconduct, and request that the trial court admonish the jury to disregard the conduct in question. (People v. Hill, supra, 17 Cal.4th at p. 820.) To establish prejudice, the defendant must demonstrate a reasonable probability that defendant would have received a more favorable result in the absence of the prosecutors alleged error. (People v. Ochoa (2001) 26 Cal.4th 398, 442.)

The oblique references by the prosecutor and Detective Salcido to defendants prior arrests was not a deceptive or reprehensible attempt to persuade the jury. The references were vague and appear to have been inadvertent. Defense counsel refrained from objecting in open court because he did not want to draw the jurys attention, and he did not request that the trial court admonish the jury. Further, we discern no prejudice to defendant.

Finally, defendant asserts that his sentence was unconstitutional under Blakely v. Washington (2004) 542 U.S. 296 and, by extension, Cunningham v. California (2007) 549 U.S. __ (127 S.Ct. 856). Defendant, however, was sentenced to the mid-term of five years, not the upper term of nine years; the jury made the true finding on the firearm enhancement; and the trial court struck both prior-prison-term allegations. We thus perceive no Blakely or Cunningham issue.

With respect to defendants pre-sentence credits, the abstract of judgment shows that defendant spent 463 days in custody prior to sentencing, and that the trial court granted him 68 additional days of conduct credit, for a total of 531 days. Pursuant to section 2933.1, any person who is convicted of a felony offense listed in section 667.5 shall accrue no more than 15 percent of worktime credit. Carjacking is listed in section 667.5, subdivision (c)(17). Fifteen percent of 463 is 69.45. Because the case law required the trial court to calculate the conduct credits to the greatest whole number, not to exceed 15.00 percent, defendant was entitled to 69 days of conduct credit, not 68. Defendant should therefore have been awarded 532 days of pre-sentence credit. (People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Ramos (1996) 50 Cal.App.4th 810, 815-816.)

In addition, the abstract of judgment states that defendant is to pay 420.00 court security assessment pursuant to section 1465.8, subdivision (a)(1). This appears to be a typographical error. Section 1465.8, subdivision (a)(1) specifies that the trial court is to impose a $20 assessment, and both the trial courts remarks from the bench and the minute order establish that this is what the trial court actually imposed.

DISPOSITION

The clerk of the superior court is ordered upon issuance of the remittitur to prepare a corrected abstract of judgment to show that defendant was entitled to 69 days of pre-sentence credit, for a total of 532 days of credit for time spent in custody, and to show that the amount of the security assessment fee is $20. The clerk of the superior court shall forward the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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

[2]Defendant did not put on any evidence.

[3]Defendant claims the prosecutor also mentioned a prior arrest in her argument to the jury. The record does not support that claim.