P. v. Terraza

Filed 6/26/07 P. v. Terraza CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge. Affirmed.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Byron Terraza (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of carjacking with the personal use of a firearm. (Pen. Code, 215, subd. (a), 12022.53, subd. (b).)[1]The trial court sentenced him to an aggregate term of 15 years in state prison, consisting of five years for the offense, enhanced by 10 years for the use of the firearm.

He contends that it was reversible error to inform the jury [that] an accomplice had already plead[] guilty to the same offense.

THE FACTS

At about 9:00 p.m. on May 31, 2004, Gohar Tagmazyan was driving her Toyota Avalon, California license plate No. 4FLP172, down Virginia Street in Los Angeles. Her windows were rolled down as it was warm outside. She saw a burgundy Ford Explorer ahead of her on the roadway. It was being driven by a female. When the Explorer stopped at a stop sign ahead of her, its two male occupants got out and approached Tagmazyan. One youth with a silver tooth who was wearing a yellow Lakers sports jersey pointed a handgun at Tagmazyan and ordered her out of her Avalon. He insisted that Tagmazyan hand over her wallet. Tagmazyan got out or was pulled out of her Avalon by the youth, and she ran, refusing to give him her wallet. The other youth, who was wearing a black shirt, went to the passenger door, entered Tagmazyans Avalon, and got into the drivers seat. He said to the gunman, Andale. Andale. The gunman entered the Avalons passenger seat, and the youth in the black shirt drove off northbound on Bronson Avenue in the Avalon.

Tagmazyan reported the carjacking.

A bystander saw the carjacking. At trial, he testified that the carjacker had a silver tooth and was wearing a Lakers jersey with baggy pants that apparently matched the shirt. Neither Tagmazyan nor the bystander noticed whether the gunman had a knee-to-foot cast or was walking with a crutch.

At about 6:30 p.m. on June 12, 2004, at 45th and Wall Streets in Los Angeles, Los Angeles Police Officers Andy Marr and Kingi stopped defendant in the Avalon for a traffic violation. The officers ran the license plate on the Avalon. The records of the Department of Motor Vehicles identified its license plate as belonging to a Jeep. They detained defendant. The vehicle identification number for the Avalon indicated that the car was stolen. The officers arrested defendant.

During the detention, A.V. approached. He told the officers that the car was his, and he demanded its keys. Then, A.V. told the officers that he had interchanged the license plates on the Avalon with those on a nonworking vehicle that belonged to his father. The officers found the Avalons license plates on a Jeep vehicle.

After a Miranda waiver (Mirandav. Arizona (1966) 384 U.S. 436), defendant commented to the officers, That little b---- told on me, didnt he? Defendant also told the officers that he had hidden his gun inside the radio in his bedroom. A police officer went to defendants residence and retrieved a two-shot Daringer from the bedroom, as well as several yellow Lakers outfits.

At trial, A.V., who was age 15 at the time of the carjacking, testified against defendant. A.V. explained the details of the carjacking and that defendant kept the keys to the Avalon. A.V. said that defendant was the youth on the drivers side of the Avalon who had held the victim at gunpoint and was wearing the Lakers jersey. A.V. also said that after the carjacking, at defendants direction, he switched the Avalons license plates with the plates on his fathers Jeep. When A.V. and defendant had approached the victim, defendant had a cast on one leg, and he was walking with a crutch.

During direct testimony, the prosecutor asked A.V. a series of questions concerning what had happened to him after the carjacking. Without an objection, A.V. explained that charges had been filed against him in juvenile court. When he was in court and during his admission, nothing was said to him about testifying against defendant and no one made him any promises in relation to any trial testimony. A.V. had pled guilty, i.e., he had admitted the carjacking and he had gone to camp for six or seven months. About a month before defendants trial, the prosecutor spoke to him about testifying. The prosecutor made no promises to A.V. to obtain his cooperation at trial. A.V. was not angry at defendant.

Trial counsel also elicited that A.V. knew defendant only shortly before the carjacking and that defendant essentially was a stranger. Trial counsel asked whether A.V. was using drugs at the time of the carjacking. Initially, A.V. was evasive. Eventually, A.V. acknowledged that generally, at the time of the carjacking, he was doing drugs, and he admitted that maybe he had been using drugs that night. A.V. was asked whether he had wanted to be a witness at defendants trial, and his reply was it doesnt really matter. He said that no one had forced him to testify.

On redirect examination, A.V. said that his testimony was truthful, and the prosecutor had not told him what to say.

Defendant did not testify or present any evidence.

DISCUSSION

Defendant contends that the evidence of A.V.s juvenile admission was inadmissible in evidence, and its use denied him due process.

A.V.s testimony about his juvenile admission of carjacking and the juvenile disposition was admitted into evidence without a defense objection. As the contention raises a claim of evidentiary error, the People argue that absent an objection, the issue is waived.

We are not concerned in this case with waiver, although it is clear that defendant falls within the general rule of waiver with respect to evidentiary admissions as he failed to object and none of the exceptions to the waiver rule apply in this case. However, in any event, defendants contention fails on its merits.

The decision in People v. Leonard (1983) 34 Cal.3d 183 is distinguishable and does not require that we conclude there was error. In Leonard, the prosecutor introduced the co-arrestees guilty plea during the trial as a statement against penal interest. The
co-arrestee was unavailable to testify as he claimed the Fifth Amendment and declined to say whether defendant was involved in the offense. (People v. Leonard, supra, at p. 188.) The Leonard court concluded that the co-arrestees statement against penal interest was inadmissible as it was misleading, and the statement properly should have been excluded pursuant to Evidence Code section 352. (People v. Leonard, supra, at p. 188.)

Our case presents different facts. This case is like People v. Fauber (1992) 2 Cal.4th 792, 821 (Fauber). In Fauber, the accomplice was available as a witness. He testified during the trial for the prosecution, and the defendant was convicted based on the accomplices testimony. The reviewing court in Fauber concluded that the full disclosure of any plea agreement or other agreement that the witness had with the prosecution was required to ensure that the jury had a complete picture of the factors affecting the witnesss credibility.

Based on the decision in Fauber, we conclude that there was no danger here that A.V.s juvenile admission would mislead the jury, and the circumstances of A.V.s admission were relevant to A.V.s credibility.

Defendant also makes a due process claim. Accordingly, the inquiry we must address is whether the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial. (Id. at p. 920.) Here, defendants due process claim is a mere constitutional gloss on his state evidentiary claim. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) Consequently, as there is no evidentiary error, his claim fails to establish an error which is the predicate to the use of evidence that renders the trial fundamentally unfair, and the claim fails. (Ibid.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, J.

DOI TODD

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

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