P. v. Carrillo

Filed 5/31/07 P. v. Carrillo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gary J. Ferrari, Judge. Affirmed.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Arthur Carrillo (Carrillo) appeals the judgment entered following a jury trial which resulted in his conviction of second degree robbery (Pen. Code,  211),^[1]during which he personally used a handgun ( 12022.53, subd. (b)) and inflicted great bodily injury ( 12022.7, subd. (a)), and his admission he had previously been convicted of a serious felony ( 667, subd. (b)-(i), 1170.12, subd. (a)-(d), 667, subd. (a)(1)). The trial court sentenced Carrillo to 24 years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The Prosecutions Case.

During the evening hours of April 21, 2006, Kurt Kanberg (Kanberg) went to Arthur Carrillos (Carrillo) mothers home to meet with Carrillo. Kanberg had told Carrillo he could assist Carrillo in getting a job at the construction company where Kanberg worked. Kanberg also hoped Carrillo would attend a church service with him.

While at the house, Kanberg told Carrillo he was looking to buy a car and had in his possession $1,300 in cash which he intended to use for that purpose. Carrillo told Kanberg his uncle worked for the Saturn car company and it was possible he could get Kanberg a good deal. The two men then left the house in Kanbergs rental car.

Kanberg drove to his mothers home to change his clothes, then to a sandwich shop where the two men ate. Carrillo then directed Kanberg to a friends house where, while Carrillo visited with his friend, Kanberg fell asleep. After awhile, Carrillo woke
up Kanberg, the two men left the house and got into the rental car. Either Kanberg or Carrillo drove the rental car around a couple of blocks and parked up the street from a house. The house was dark and Kanberg followed Carrillo into the back yard where a man handed something to Carrillo.

Carrillo told Kanberg to go into the garage. Once they were inside, Carrillo stuck a gun in [Kanbergs] ribs and said, Give me all your money. Carrillo continued jabbing Kanberg in the ribs with the gun and told Kanberg to [g]ive [him] everything. Because he believed Carrillo was his friend, Kanberg initially thought Carrillo was joking. However, when Carrillo began clicking the gun and threatening to kill Kanberg, Kanberg emptied his pockets and handed their contents, including the $1,300, to Carrillo. Carrillo pistol whipped Kanberg, hitting him in the head. Dazed, Kanberg buckled to one knee and lost consciousness for several seconds. Carrillo pointed to the garages back door and told Kanberg to leave. Kanberg had walked out the door and was attempting to run to the rental car when he realized he no longer had the car keys. As Kanberg approached the car, he saw Carrillo had already gotten inside and was driving off. Kanberg, who was bleeding profusely, started to walk down the center of the street. A police officer happened to drive by, saw Kanberg and stopped.

Kanberg told the officer he had been robbed and that someone had taken his car. The officer called for an ambulance and Kanberg was taken to a nearby hospital where he received seven stitches for a cut on his right forehead. When police questioned him at the hospital, Kanberg was reluctant to tell them the truth. Kanberg, who had previously been convicted of seven felonies, two of which qualify as strikes for purposes of the Three Strikes law, stated he had been to prison and in that culture [one is] supposed to take revenge on people[;] [h]andle business on your own. However, Kanberg was employed, had begun to take care of his 13-year-old daughter and was attempting to turn his life around. He decided to talk with police and make a report.

Although he was dazed and confused after having been hit on the head with the gun, Kanberg was not on drugs that night. Kanberg explained he was no longer involved with drugs; he was on parole and was required to undergo drug testing twice each month and was subject to on-call drug tests at the company where he worked.

Los Angeles Police Sergeant Paul McKechnie (McKechnie) was on patrol on the night of April 21, 2006, and saw Kanberg walking down the middle of the street, bleeding from his head. Kanbergs face and shirt were covered in blood. McKechnie stopped his patrol car, got out and approached Kanberg, who was dazed and disoriented. McKechnie requested an ambulance and, while he and Kanberg were waiting for it to arrive, asked Kanberg a few questions. Kanberg told the sergeant he had just been robbed of [his] money and his vehicle and that he [had been] hit over the head with a weapon. Kanberg gave McKechnie a description of the rental car and told the sergeant where the robbery had occurred. McKechnie, who had been trained in the area of substance abuse[], was of the opinion Kanberg was not under the influence of alcohol or drugs that night.

Los Angeles Police Officer Eric Good (Good) responded to a call from McKechnie. Good and his partner first reported to the scene where Kanberg was being treated by paramedics then went to Kaiser Hospital at Harbor City where Kanberg was taken for treatment. During an interview at the hospital, Kanberg told Good he had been robbed of $1,300 at gunpoint and that the robber had then taken his rental car. When Good asked Kanberg for the robbers name, Kanberg was reluctant to provide it. Kanberg indicated he was fearful of potential retaliation. Kanberg then told the officer he was on parole, but had reformed his lifestyle. After Good and his partner told Kanberg it wasnt worth going after the suspect . . . because he would land himself in jail, and it wasnt worth it for him to destroy what he had created for himself, Kanberg, although still fearful, told them Carrillo was the person who had robbed him and taken his car.

Good spent between one and two hours with Kanberg. During that time, Kanberg exhibited no symptoms indicating he was under the influence of methamphetamines.

b. Defense Evidence.

Rachel Moran Carrillo (Rachel) is Carrillos mother. Shortly after 8:30 p.m. on April 21, 2006, Carrillo came to Rachels home, where he stayed from time to time, and began making preparations to take a shower. At about the same time Rachel answered the telephone and spoke to Kanberg, who was attempting to contact Carrillo. A few minutes later, Kanberg arrived at Rachels residence. According to Rachel, Kanberg smelled of alcohol and was acting kind of strange. He kept looking out the window and moving around and he couldnt sit still. Rachel felt [Kanberg] was on drugs and, after approximately 35 or 40 minutes, she asked Kanberg to leave. Kanberg, who was drinking an alcoholic beverage from a tall glass, stood up and said he needed a ride. When Rachel asked him how he had gotten to her house, Kanberg stalled for a moment, pulled some keys from his pocket, then left.

Carrillo did not leave with Kanberg. He remained at Rachels home for the rest of the evening. Although Carrillo was taken into custody the following day, Rachel did not go to the authorities and tell them what she knew because she generally did not involve [her]self in [her] childrens mixups. However, when she realized Carrillo was facing . . . some serious time in prison for something he did not do, she decided to come forward and testify.

Carrillo testified he met Kanberg in 2001, when they were both in prison. Carrillo previously had been convicted of two felonies, one in 1997 for robbery with a gun. For approximately one month prior to April 21, 2006, Kanberg and Carrillo had been in contact by telephone. On April 21st, the two men decided to get together and go out for the evening.

When Kanberg arrived at Rachels house at approximately 6:30 that evening, Carrillo went out to the car to meet him. Kanberg kept moving around a lot and Carrillo was of the opinion Kanberg was under the influence of methamphetamines. Both men got into the car and Carrillo asked Kanberg if he had any drugs. Kanberg indicated he did. However, when he could not find them in the car, he suggested they go to his mothers house because he believed he had left them there. The two men went to Kanbergs mothers home and, while Carrillo waited in the living room, Kanberg went to the back of the house for approximately five minutes. Kanberg returned with some methamphetamines and he and Carrillo went back to the car. Kanberg drove to a nearby gas station where Carrillo used some of the drugs. After Kanberg paid for the gasoline, Carrillo drove the car back to his mothers home, got out and went inside the house, taking the drugs with him. Kanberg drove off, indicating he wished to go to a store to buy some liquor. In the meantime, Carrillo went into the bathroom and got high. Carrillo did not see Kanberg again that evening. Carrillos mother told him Kanberg had returned to the house, but she had asked him to leave. The following day, Los Angeles Police Officers came to Carrillos mothers home and placed Carrillo under arrest. At trial, Carrillo testified he had been working as a carpenters apprentice and was a member of the carpenters union.

c. Rebuttal.

Ana Emge (Emge) is Kanbergs mother. In the past, Emge had seen Kanberg under the influence of methamphetamines. On those occasions she did not allow Kanberg to come into her house and she had, at times, informed his parole officer she had seen him under the influence of drugs. To her knowledge, Kanberg had never kept drugs at her home.

Between approximately 3:00 and 5:00 p.m. on April 21, 2006, Kanberg and Carrillo stopped by Emges house. Neither man appeared to be under the influence of methamphetamines.

2. Procedural History.

On June 14, 2006, Carrillo was charged by information with one count of second degree robbery ( 211) and one count of carjacking ( 215, subd. (a)), during each of which he personally used a handgun ( 12022.53, subd. (b)) and inflicted great bodily injury ( 12022.7, subd. (a). It was further alleged he previously had suffered a serious or violent felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1)), and had served two prior prison terms ( 667.5, subd. (b)). Carrillo entered pleas of not guilty to the robbery and the carjacking and denied the remaining allegations.

At proceedings held on September 1, 2006, Carrillos motion to bifurcate the trial on the prior conviction and prison term allegations from the trial on the substantive offenses was granted.

Jury trial commenced on September 6, 2006. After the prosecution completed its presentation of evidence, Carrillo made a motion for dismissal of the count alleging carjacking pursuant to section 1118.1. Carrillo asserted the evidence failed to support the charge. The trial court denied the motion, stating there was sufficient evidence to let the case go to the jury.

On September 7, 2006, after the jury began its deliberations, Carrillo waived his right to a trial, to confront the witnesses against him, to present a defense and his right against self-incrimination and admitted previously having been convicted of a serious felony and having served two prior prison terms.

On the morning of September 8, 2006, the jury found Carrillo guilty of second degree robbery and found true the allegations that, during the commission of the offense, he personally used a firearm and inflicted great bodily injury. The jury found Carrillo not guilty of car jacking.

At proceedings held on September 22, 2006, Carrillo made motions to set aside the jurys verdict and to strike the Three Strikes prior conviction in furtherance of justice pursuant to section 1385. As to the motion to set aside the verdict, Carrillo argued the evidence, which consisted entirely of the victims testimony, was insufficient to support the finding he committed second degree robbery with a firearm and inflicted great bodily injury. Carrillo asserted, The evidence presented consisted totally of the account of the alleged victim [which] was not credible on its face. Besides being shown to be a convicted felon, the victims account of the incident showed that he continually embellished and lied about what occurred. The trial court denied the motion stating it had found the victim to be credible and the evidence overwhelming on every one of the issues.

With regard to his motion to strike the Three Strikes prior conviction, Carrillo argued the prior, which occurred in 1997, was remote and involved narcotics. Carrillo indicated he has a history of drug use and has fought drug addiction much of his life. . . . [He indicated] [h]e is seeking to address those problems and would cooperate with any conditions the court might set should it consider leniency. The trial court denied the motion stating, since the prior conviction occurred within the previous ten years, it was not remote. Further, the present robbery was similar, if not the exact offense that [Carrillo] sustained when he suffered [the] strike and was using a gun . . . .

The trial court sentenced Carrillo to the middle term of three years in prison for his conviction of second degree robbery, then doubled the term to six years pursuant to the Three Strikes law. The trial court imposed an additional 10 years for Carrillos personal use of a firearm and an additional three years for his infliction of great bodily injury.
For his prior conviction of a serious felony, the trial court imposed a term of five years. The trial court struck the prior prison term allegations and, in total, sentenced Carrillo to a term of 24 years in prison. Carrillo was awarded presentence custody credit for 156 days actually served and 15 percent, or 23 days, of good time/work time, for a total of 179days.

Carrillo filed a timely notice of appeal on September 22, 2006.

This court appointed counsel to represent Carrillo on appeal on
December 22, 2006.

CONTENTIONS

After examination of the record, appointed counsel sought from the trial court correction of its September 22, 2006, minute order to reflect a total of $200 in restitution rather than restitution in the amount of $200 per year, or a total of $4,800, then filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed March 21, 2007, the clerk of this court advised Carrillo to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On April 16, 2007, Carrillo filed a supplemental brief in which he asserts:
(1) his conviction of second degree robbery should be reversed because it was based on unreliable testimony, (2) since the jury did not find any factors in aggravation, the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) precluded imposition of consecutive sentences, (3) his trial counsel was ineffective for allowing the jury to hear he previously had been convicted of a felony and, (4) his conviction must be reversed because a juror was found to be sleeping during cru[c]ial cross-examination.

DISCUSSION

1. Substantial Evidence Supports the Jurys Finding Carrillo Committed Second Degree Robbery.

Carrillo asserts his conviction of second degree robbery should be reversed because it was based on unreliable testimony.

When determining whether the evidence was sufficient to sustain a conviction, our role on appeal is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) [T]he test of whether evidence is sufficient to support a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Holt (1997) 15 Cal.4th 619, 667, italics omitted) We draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

It is well settled the testimony of a single witness, if believed by the finder of fact, is sufficient to establish that fact. (Evid. Code, 411; People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Hampton (1999) 73 Cal.App.4th 710, 722.) Apart from whether Carrillo believes it was reliable, Kanbergs testimony established Carrillo took personal property from Kanbergs possession, against Kanbergs will, by means of force or fear. ( 211.) Drawing all reasonable inferences in support of the jurys verdict, Kanbergs testimony supports Carrillos conviction of second degree robbery.

2. Imposition of Consecutive Enhancements Did Not Violate Cunningham.

Carrillo contends he was improperly sentenced to consecutive terms based on facts not determined by a jury as required by the United States Supreme Courts decision in Cunningham.

In Cunningham, the court determined the Federal Constitutions jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (127 S.Ct. at p. 860.) Here, Carrillos middle term sentence for second degree robbery, doubled pursuant to the Three Strikes law, was enhanced by consecutive terms imposed pursuant to sections 12022.53, subdivision (b) (personal use of a firearm), 12022.7, subdivision (a) (infliction of great bodily injury), and 667, subdivision (a)(1) (prior serious felony conviction). Apart from whether the Cunningham rule applies to the imposition of consecutive enhancements, Carrillos contention has no merit. There was no violation of Cunningham. The jury found true the allegations that, during the robbery, Carrillo personally used a firearm and inflicted great bodily injury. As to the enhancement imposed for Carrillos conviction of a prior serious felony, Carrillo admitted having suffered the conviction.

3. Trial Counsel Was Not Ineffective.

Carrillo asserts his trial counsel was ineffective for allowing the jury to hear he previously had been convicted of two felonies, one of which involved a robbery with a gun. He claims the evidence gave the District Attorney a devastating advantage.

To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsels performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. [Citation.] (People v. Benavides (2005) 35 Cal.4th 69, 92-93; see Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Carter (2003) 30 Cal.4th 1166, 1211.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt, supra, 15 Cal.4th at p. 703.) In addition, as a reviewing court, we defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation] and there is a strong presumption that counsels conduct [fell] within the wide range of reasonable professional assistance. [Citation.] (People v. Hinton (2006) 37 Cal.4th 839, 876.)

In the present case, Carrillo chose to testify and it was likely the prosecutor
would impeach him with his prior convictions on cross-examination. Under these circumstances, counsel made a rational tactical decision to have Carrillo admit he had previously suffered the felony convictions on direct examination. It was not unreasonable for counsel to have concluded such admissions would make Carrillo
appear more forthcoming and, as a result, more credible. (See People v. Hinton, supra,
37 Cal.4th at p.877.) On the record before us, counsels actions were entirely reasonable.

4. There Is No Evidence Juror Number Three Fell Asleep During Trial.

During cross-examination of Kanberg, the trial court interrupted counsel and stated, Juror number 3 are you okay? After juror number three nodded up and down, Carrillos counsel continued with his questioning of Kanberg. Nothing about this exchange indicates juror number three fell asleep during trial.

APPELLATE REVIEW

We have examined the entire record and are satisfied Carrillos counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284).

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J. KITCHING, J.

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