P. v. Rodriguez and Estrada

Filed 4/12/07 P. v. Rodriguez and Estrada 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 judgments of the Superior Court of Los Angeles County. Patrick T. Meyers, Judge. Affirmed.

Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant Wilson Rodriguez.

Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Estrada.

Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.

Defendants Wilson Rodriguez and Jesus Estrada were charged with second degree robbery (Pen. Code, 211)[1](Count 1) and assault with a firearm ( 245, subd. (a)(2)) (Count 2). The People also alleged that a principal in the robbery charged in Count 1 was armed with a firearm. ( 12022, subd. (a)(1).) A jury convicted defendants on Count 1; on Count 2, the jury convicted defendants of assault ( 240), a lesser included offense. The jury found not true the allegation under section 12022, subdivision (a)(1). The trial court sentenced Estrada to the middle term of three years on Count 1 and to 180 days in county jail on Count 2, with the sentence on Count 2 stayed pursuant to section 654. The trial court placed Rodriguez on three years formal probation, with the condition, among others, that he serve 365 days in the county jail. We affirm.

BACKGROUND

On the evening of September 5, 2005, Daniel Vicente and Roshanda Lee were at the University of Southern California, where Vicente played in a basketball game. After the game, they headed toward Lees grandmothers house.

As they walked west on Florence Avenue near Compton Boulevard, three Hispanic men emerged from an alley and confronted them. Two of the men were later identified as defendants. The third, a short man wearing a red shirt, was later identified as Manuel Hernandez.[2] A white Nissan Maxima and a black Ford Crown Victoria were parked in the alley. A Hispanic woman, later identified as Esmeralda Carlos,[3]was seated in the front passenger seat of the Maxima; several other men stood in the alley near the two cars.

Hernandez demanded to know where Vicente was from, and shouted, Fuck East Coast several times. Hernandez and defendants then attacked Vicente. As Vicente attempted to ward off defendants blows, Hernandez approached Lee and demanded, Bitch, give me your purse. When Lee hesitated, Hernandez snatched the purse off her shoulder and threw it into the Maxima.

When Hernandez returned from the Maxima, Vicente saw a shiny object in Hernandezs hand, and heard Hernandez or one of the men in the alley say, Kill them both, or Just kill them. Vicente and Lee fled. As they neared an alley by Lees grandmothers house, they looked back to see the Maxima and the Crown Victoria speeding off eastward on Florence Avenue.

Lee went into her grandmothers house. Vicente went out to Florence Avenue, where he flagged down a passing patrol car containing Los Angeles County Sheriffs Deputies Omar Carbajal and Adan Torres. Vicente described the two cars and the assailants to the deputies, mentioning specifically the white Maxima, Hernandezs red shirt, and Carloss presence in the front passenger seat of the Maxima.

Approximately one minute later, Deputies Carbajal and Torres discovered a white Nissan Maxima parked behind a gas station four or five blocks from where Vicente and Lee were accosted. The Maxima was occupied by three Hispanic men and one Hispanic woman. The driver was wearing a red shirt. The deputies detained them as suspects and searched them. The deputies recovered a cellular telephone from Estradas pocket, a red coin purse from inside Carloss purse, a pair of sunglasses, and, from the floor at Rodriguezs feet, a womans wallet containing Lees identification card. All of the items belonged to Lee.

Deputy John Ganarial and his partner, Deputy Medrano, picked up Vicente and Lee from Lees grandmothers house and took them to the gas station. The deputies separated Vicente and Lee, and placed them on opposite sides of a police car. The deputies showed Vicente and Lee each of the four suspects, who were handcuffed, one at a time. Approximately 30 minutes after the crime occurred, Vicente and Lee each identified Hernandez and defendants as the perpetrators.

DISCUSSION

A. The Evidence Is Sufficient To Sustain Defendants Convictions

Defendants argue that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that defendants were the people who accosted Vicente and Lee. We reject that contention.

In reviewing a criminal convictionchallenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) 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. (People v. Boyer (2006) 38 Cal.4th 412, 480, quoting People v. Cuevas (1995) 12 Cal.4th 252, 265.)

Defendants arguments on appeal reduce entirely to the proposition that both the in-court and contemporaneous identifications of defendants as the perpetrators by Vicente and Lee were not credible or reliable. Whether the testimony of Vicente and Lee was credible, however, is a matter to be determined by the jury, not the appellate court.

Both Vicente and Lee identified Hernandez and defendants as the perpetrators within 30 minutes of the crime. Both Vicente and Lee again identified defendants as the perpetrators in open court. Defendants were apprehended within blocks of the crime scene and within minutes of the crime, in a vehicle of the same make and model as one of the vehicles at the crime scene. Deputy Ganarial testified that he advised Vicente and Lee that they were under no obligation to make an identification, that the deputies wanted innocent people cleared as well as guilty persons identified, and that they should not draw conclusions from the fact that the suspects were handcuffed or in custody. Vicente testified that he was advised that he was under no obligation to make an identification, and that he would have told the deputies if the suspects had not been the perpetrators. Although Lee testified that she received no admonition from Deputy Ganarial, she testified that she did not feel pressured to identify anyone, and that she would have been comfortable telling the deputies if the suspects had not been not the perpetrators. In addition, Lees telephone was recovered from Estradas pocket, and Lees walletwith her identification still in itwas found on the floor of the car at Rodriquezs feet. Substantial evidence thus supports the jurys conclusion that defendants were guilty beyond a reasonable doubt.

B. Rodriguez Forfeited Any Claim of Error Regarding Evidence of the Identifications, and His Counsels Failure to Object Did Not Constitute Ineffective Assistance of Counsel

In his opening brief, Rodriguez concedes that his trial counsel failed to object on due process grounds to either the show-up identifications or the in-court identifications by Vicente and Lee. Instead, Rodriguez purports to raise the due process issue as the basis for a claim of incompetenc[e] of counsel. In his reply brief, Rodriguez urges us to review on the merits his claims that the show-up was impermissibly suggestive, and that the in-court identifications were tainted.

Rodriguez forfeited any due process objection to evidence regarding the identifications by failing to object on that ground at trial. [T]he failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal. [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th 193, 198; see also 1259 [Upon an appeal taken by the defendant, the appellate court may . . . review any question of law involved in any ruling . . . at the trial . . . , which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant (italics added)]; People v. Kennedy (2005) 36 Cal.4th 595, 611-612 [failure to object on grounds of coercion barred review of claim that coerced testimony was erroneously admitted at trial]; In re Sakarias (2005) 35 Cal.4th 140, 170-171 [Miranda claim not presented at trial barred on both direct appeal and habeas corpus]; People v. Braxton (2004) 34 Cal.4th 798, 813-814 [issues raised by motion for new trial forfeited for appellate review by failing to press for a hearing or by acquiescing in the courts failure to hear the new trial motion]; People v. Cunningham (2001) 25 Cal.4th 926, 989 [failure to object forfeited claim that photo line-up was suggestive]; In re Michael L. (1985) 39 Cal.3d 81, 87-88 [same].)

Even if we were to address the merits of Rodriguezs claim, the show-up identification in this case was not impermissibly suggestive. The burden is on the defendant to demonstrate unfairness in the manner the show-up was conducted, i.e., to demonstrate that the circumstances were unduly suggestive. [Citation.] Appellant must show unfairness as a demonstrable reality, not just speculation. (In re Carlos M. (1990) 220 Cal.App.3d 372, 386.) To meet that burden, the defendant must establish a substantial likelihood of irreparable misidentification under the totality of the circumstances. (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.) To determine whether defendant has met that burden, we examine (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable, taking into account the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (People v. Kennedy, supra, 36 Cal.4th at p. 608; People v. Cunningham, supra, 25 Cal. 4th at p. 989.)

A single-person show-up is not inherently suggestive or unreliable (People v. Ochoa (1998) 19 Cal.4th 353, 413), even if the suspect has been detained and is handcuffed. (In re Carlos, supra, 220 Cal.App.3d at p. 386.) Indeed, show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witnesss mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. (Id. at p. 387, italics omitted.)

As discussed, defendants were identified as suspects by Deputies Carbajal and Torres based on accurate, contemporaneous descriptions by Vicente. The show-up took place less than 30 minutes after the crime, in close proximity to where the crime occurred. Deputy Ganarial testified that he admonished both Vicente and Lee about the identification process, which Vicente confirmed. There is no evidence that any pressure was exerted on either Vicente or Lee to make an identification. Both Vicente and Lee testified that they would have told the deputies if the suspects were not the perpetrators. Further, defendants were apprehended while in possession of Lees cell phone, sunglasses, coin purse, wallet and identification card. In the totality of the circumstances, therefore, the show-up procedure was not unduly suggestive, and the identifications by Vicente and Lee were reliable.

Our conclusion that the show-up was not unduly suggestive precludes Rodriguezs ineffective assistance of counsel claim. (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) Moreover, the record contains no explanation for the failure of Rodriguezs trial counsel to object. 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.)

Rodriguezs trial counsel might have had sound reasons for not objecting. For example, criminal defense lawyers are not required by the Sixth Amendment to assert objections that a reasonable attorney would determine to be futile. (People v. Anderson (2001) 25 Cal.4th 543, 587.) Trial counsel might reasonably have determined that Rodriguez could not sustain his burden to demonstrate that the show-up in this case was unduly suggestive or that the identifications were unreliable. In this regard, it is instructive that all three defense lawyers cross-examined Deputy Ganarial, Vicente and Lee in an effort to impugn the reliability of the show-up identifications, yet none of them objected to the identifications on due process grounds. Even more significant, neither the attorney for Rodriquez nor the attorney for Estrada argued to the jury that the identifications were unreliable.

On the present record, therefore, we cannot say as a matter of law that trial counsels failure to object fell below an objective standard of reasonableness under prevailing professional norms or that there could be no conceivable reason for counsels acts or omissions. (People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)

C. The Trial Court Did Not Err In Giving A Flight Instruction

Over defendants objection, the trial court instructed the jury as follows: If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.[4] Defendants argue that the trial court erred in giving this flight instruction because there was no evidence that defendants fled the scene to avoid detection or arrest, and because the instruction was irrelevant in a case in which the only contested issue was identity.[5] We disagree with both contentions.

A trial court must instruct the jury on the principles of law relevant to the issues raised by the evidence, and has the correlative duty to refrain from instructing the jury on principles of law that are irrelevant. (People v. Armstead (2002) 102 Cal.App.4th 784, 792.) It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. (People v. Guiton (1993) 4 Cal.4th 1116, 1129; People v. Robinson (1999) 72 Cal.App.4th 421, 428.)

Although section 1127c requires a trial court to give a flight instruction if evidence of flight is relied upon as tending to show guilt (People v. Carter (2005) 36 Cal.4th 1114, 1182), the prosecutor in this case did not argue to the jury that defendants flight tended to show defendants guilt. A flight instruction is nevertheless appropriate if there is substantial evidence that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) [F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested. (People v. Bradford, supra, 14 Cal.4th at p. 1055; accord, People v. Smithey, supra, 20 Cal.4th at p. 982.)

In addition, a flight instruction is not improper when identity is a disputed issue [i]f there is evidence identifying the person who fled as the defendant. (People v. Mason (1991) 52 Cal.3d 909, 943; accord, People v. Jones (1991) 53 Cal.3d 1115, 1144-1145; People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) When identity is also an issue . . . the jury [is] to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step. (People v. Mason, supra, 52 Cal.3d at p. 943, quoting People v. London (1988) 206 Cal.App.3d 896, 903.)

Defendants in this case were tried on the robbery charge on the theory that they aided and abetted Hernandez in robbing Lee. The prosecutor was thus required to prove that defendants intended to aid and abet the perpetrator in committing the crime. (CALCRIM No. 401; People v. Beeman (1984) 35 Cal.3d 547, 560-561.) The trial court so instructed the jury. Vicente and Lee testified that Hernandez and defendants were at the crime scene near a white Nissan Maxima. Immediately after Vicente and Lee made their escape, they turned back and saw the Maxima pull out of the alley and speed off in the opposite direction. Defendants were discovered in the Maxima shortly thereafter, parked behind a gas station, with the loot from their robbery. From this evidence, the jury reasonably could conclude that defendants expected that Vicente and Lee would contact the police, and that defendants left the scene of the robbery to avoid being discovered and apprehended by the police. Defendants consciousness of guilt, as evidenced by their flight, tended to support the conclusion that defendants intended to aid and abet Hernandez in committing the robbery. The trial court therefore did not err in giving the flight instruction.

Even if we were to assume that the instruction was given in error, such error was manifestly harmless. The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. (People v. Carter, supra, 36 Cal.4th at pp. 1182-1183.) In addition, the trial court told the jury that [s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them. (CALCRIM No. 200.) We perceive no prejudicial error.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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

[2]Hernandez was a co-defendant at trial and was convicted of second degree robbery and assault. Hernandez is not a party to this appeal.

[3]Carlos pled guilty to two felony counts prior to trial.

[4]CALCRIM No. 372, as given.

[5]Defendants assertion that identity was the only or even a primary contested issue at trial is simply inaccurate. Neither defendant argued misidentification to the jury. Instead, both argued primarily that they lacked the requisite intent to be convicted as aiders and abettors, and that the evidence was insufficient to sustain the firearm allegation under section 12022, subdivision (a)(1).