P. v. Lopez

Filed 10/24/06 P. v. Lopez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from judgments of the Superior Court of Los Angeles County, Anita H. Dymant, Judge. Affirmed.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Dorian Alexander Lopez.

Law Offices of Sef Krell and Sef Krell for Defendant and Appellant Randall Rodolfo Ramirez.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, Allison H. Chung, and Viet Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Appellant Dorian Alexander Lopez claims there was insufficient evidence to support one of his robbery convictions. Appellant Randall Rodolfo Ramirez argues that the admission of Lopez’s redacted confession violated his Sixth Amendment right to confrontation^[1] and constituted Aranda-Bruton[2] error. He also contends that the trial court abused its discretion in denying his severance motion, and that even if it did not abuse its discretion, reversal is still required because gross unfairness resulted. We affirm both judgments.

FACTUAL AND PROCEDURAL SUMMARY

In an information filed on June 21, 2004, Ramirez and Lopez were charged with carjacking (count 1) and second degree robbery (count 3). Only Lopez was charged with another count of second degree robbery (count 2).

Count 1 - The Carjacking of Amita Patel

As Amita Patel arrived to pick up her children, she noticed Ramirez seated inside a green car and Lopez standing outside the car. Patel parked behind them, got out of her car, and began walking towards the curb. Lopez approached her, put a gun to her chest, and said, “give me your keys.” Patel gave Lopez her keys and he drove away in Patel’s black GMC Yukon Denali (SUV). Ramirez followed Lopez in the green car.

Later that day, Mario Robinson saw a black SUV speed into the parking lot of a gas station that he manages. It is unclear whether Ramirez arrived in the SUV. Ramirez and some other men then congregated around a blue or green car parked at one of the gas pumps. Robinson observed Ramirez go into the gas station store. Police cars then entered the lot and inspected the SUV. Police helicopters also arrived. Robinson then saw Ramirez and others drive away in the blue or green car. Robinson allowed police to view the gas station’s surveillance footage which showed Ramirez paying for gas inside the store.

While responding to a radio broadcast for Patel’s carjacking, an officer saw Ramirez walking out of a medical clinic and “deliberate[ly] . . . getting rid of something” in a trashcan. Because Ramirez matched the description on the broadcast, looked nervous, and was near the location of the carjacking, Ramirez was detained. The item recovered from the trashcan was Patel’s gasoline credit card. Police found Lopez hiding in a shed behind the medical clinic.

Shortly after the men were apprehended, Patel identified Lopez as the man with the gun and stated she was 90 percent sure Ramirez was the man in the green car. Lopez confessed to the carjacking. At trial, his confession was redacted and was admitted through a police officer’s testimony that Lopez “told me that he went up to Ms. Patel, pointed a gun at her and took her car.” Lopez’s counsel asked, “[H]e told you that he had been at 4900 Wilshire and saw Ms. Patel and pointed the gun at her and took her vehicle; is that correct?” The officer replied, “Yes.” It was stipulated at trial that a fingerprint found on Patel’s SUV belonged to Ramirez. Patel positively identified both men at trial. Lopez and Ramirez were found guilty of carjacking.

Count 2 - The Robbery of Paul Abukhalil

As Paul Abukhalil was walking down a street, he was approached by two men. One of the men, identified by Abukhalil as Lopez, lifted up his shirt and revealed a gun. Abukhalil was told to turn around, both men then rifled through Abukhalil’s pockets and took his wallet and keys. They also took a ring from his finger. Abukhalil could not identify the second man.

At trial, Lopez’s attorney argued that Abukhalil did not have a good opportunity to see Lopez because Abukhalil was immediately told to turn around. She also pointed out that Abukhalil’s belongings were not on Lopez’s person when he was later apprehended, and she emphasized that Abukhalil said the gun found on Lopez was not the gun flashed by his assailant. The court declared a mistrial on this count because the jury was deadlocked.

Count 3 - The Robbery of Hamid Jabbar

As Hamid Jabbar was walking on a sidewalk, he was approached by Ramirez, Lopez, and one other man. Ramirez raised a shotgun and pointed it at Jabbar while Lopez held up a tire iron and took Jabbar’s wallet, keys, cell phone, and groceries. Lopez and Ramirez were found guilty of second degree robbery.

DISCUSSION

I

Lopez argues that his conviction for count 3, the robbery of Jabbar, should be reversed because there is insufficient evidence to support it.

“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.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)

Lopez contends the evidence was insufficient because the prosecution only presented one witness, Jabbar, whose identification of Lopez as the man with the tire iron was weak. He argues the identification was weak because Jabbar was stressed during the incident, it was dark, Jabbar did not have a good opportunity to observe the man with the tire iron, Jabbar could not provide an adequate description of the perpetrators to the police, the incident lasted less than a minute, and four months elapsed before Jabbar was able to positively identify Lopez as the man with the tire iron. Lopez’s arguments go to the weight of evidence, not its sufficiency.

“It is well settled that, absent physical impossibility or inherent improbability, the testimony of a single eyewitness is sufficient to support a criminal conviction. [Citation.] . . . Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate.” (People v. Allen (1985) 165 Cal.App.3d 616, 623.) No physical impossibility or inherent improbability exists in this case. Jabbar testified that he saw the faces of the three men as they were walking towards him because although it was night, there were streetlights. He testified that his attention was focused on the man with the tire iron at one point and that this man was standing in front of him while he was taking Jabbar’s property.

Jabbar also provided height, weight, and clothing descriptions of the perpetrators to the police. Lopez does not argue that these descriptions are inconsistent with Jabbar’s later identification of Lopez. Approximately one month after the incident, Jabbar could not positively identify the man with the tire iron from a group of photographs. He testified that he thought it was either Lopez or another man, but was unsure between the two because “pictures are really hard to tell” and “people look different in person.” Jabbar then positively identified Lopez in a live lineup and again at trial.

Although the entire robbery took place in less than a minute, Jabbar testified that he remembered the “traumatic” details because he “kept thinking about it” and couldn’t get it out of his head for at least six months to a year. Based on this evidence, it was reasonable for a jury to resolve any weaknesses in Jabbar’s testimony in favor of the prosecution. The evidence is sufficient to support Lopez’s conviction.

II

Ramirez argues that his Sixth Amendment right to confrontation was violated by the introduction of Lopez’s confession because he did not have the opportunity to cross-examine Lopez. The Sixth Amendment guarantees a criminal defendant the right to confront and cross-examine witnesses against him. (Richardson v. Marsh (1987) 481 U.S. 200, 206.) “Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendent.” (Ibid.) The “Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 211.)

Lopez did not testify. Lopez’s confession to count 1 was redacted to exclude any mention of Ramirez, or any other person, and the jury was instructed to consider Lopez’s confession against Lopez only. Thus, Lopez’s confession did not incriminate Ramirez and there is no confrontation clause violation. (See People v. Song (2004) 124 Cal.App.4th 973, 984.)

Ramirez also argues that the admission of Lopez’s confession was “powerfully and facially” incriminating, the admission of which constituted Aranda-Bruton error. As we have just explained, Lopez’s confession was properly redacted and the jury was instructed not to consider the confession against Ramirez. Lopez’s confession was redacted without leaving any indication of redaction, such as a blank space, symbol, neutral pronoun, or the word “deleted,” which strengthened the jurors’ ability to consider the confession against Lopez only. (See People v. Fletcher (1996) 13 Cal.4th 451, 466; Gray v. Maryland (1998) 523 U.S. 185, 196-197.) More importantly, Ramirez’s attorney agreed at the severance hearing that the redacted statement sufficiently protected Ramirez’s interests. Ramirez has not shown that the prosecutor “sought to undo the effect of the limiting instruction by urging the jury to use [Lopez’s] confession in evaluating [his] case.” (Richardson v. Marsh, supra, 481 U.S. at p. 211.) We do not believe that it was “‘psychologically impossible for jurors’ to put [Lopez’s] statement out of their minds in considering the issue of [Ramirez’s] guilt” as Ramirez suggests.

Ramirez also argues that the trial court abused its discretion by denying his motion to sever his trial from Lopez’s trial. Penal Code “[s]ection 1098 provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ Our Legislature has thus ‘expressed a preference for joint trials.’ [Citation.] But the court may, in its discretion, order separate trials ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ [Citations.] We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion. [Citation.] If the court’s joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder ‘”resulted in ‘gross unfairness’ amounting to a denial of due process.”’ [Citation.] Even if the court abused its discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant would have received a more favorable result in a separate trial. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 574-575.)

In support of his severance motion, Ramirez argued that his defense was antagonistic to Lopez’s defense, that substantial prejudice would result because the stronger case against Lopez on count 1 would bolster the weaker case against him, and that he would be unable to testify if the cases were not severed.

“The Supreme Court, recognizing that few California cases have discussed what constitutes an ‘antagonistic defense,’ referred to federal authority and concluded that the concept is construed very narrowly. [Citation.] ‘”[M]utual antagonism” only exists where the acceptance of one party’s defense will preclude the acquittal of the other.’ [Citation.]” (People v. Greenberger (1997) 58 Cal.App.4th 298, 344.) “Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants’ trials, none has found an abuse of discretion or reversed a conviction on this basis.” (People v. Boyde (1988) 46 Cal.3d 212, 232; People v. Avila, supra, 38 Cal.4th at p. 575.) Ramirez’s expected defense was that he was not involved in any of the counts charged against him. Lopez confessed to count 1 and was expected to deny involvement in counts 2 and 3. These defenses are not antagonistic. The acceptance of Lopez’s defense would not preclude the acquittal of Ramirez.

We do not believe that Lopez’s case bolstered a weak case against Ramirez. Although Lopez confessed to count 1, as explained above, Lopez’s redacted confession did not implicate Ramirez. Victim Patel identified Ramirez as the man in the green Honda, the surveillance camera showed Ramirez at the gas station at the same time Patel’s SUV was found there, Ramirez’s fingerprint was found on the SUV, and police observed Ramirez throwing away Patel’s gas card in a trashcan. The prosecution’s case against Ramirez for count 1 was strong.

Further, the case against Ramirez for count 3 was stronger than the case against Lopez. The victim of count 3, Jabbar, positively identified Ramirez as the man holding the shotgun from a group of photographs, a live lineup, and at trial. Jabbar was not able to positively identify Lopez from the photographs. Ramirez’s case was not “particularly weak in evidentiary support when compared with [Lopez’s] so as to create a risk of ‘spillover’ from one to the other.” (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1287.)

Ramirez was not charged with count 2. Because of this, he argued he would be prejudiced by the evidence that a shotgun was used in the commission of this offense because a shotgun also was used in the count 3 robbery. The victim of count 3, Jabbar, identified Ramirez as the man holding the shotgun on three separate occasions. The fact that Lopez was charged with a different robbery, where the weapon used was alleged to be a shotgun, does not bolster the prosecution’s case against Ramirez for count 3.

Also insufficient to demonstrate prejudice is Ramirez’s assertion that because he expected to testify to things that were not favorable to Lopez, he would be prevented from testifying if the cases were joined because he would “have to go up against two separate cross-examinations both trying to inculpate him as opposed to him putting his defense on.” The trial judge stated that it would be a “big leap” to find that Lopez’s attorney would be “jumping all over” Ramirez and that Lopez’s testimony was expected to be “I did this, I did that . . . not mentioning [Ramirez] at all.” Ramirez did not provide any evidence that supported his contention that Lopez’s attorney would try to inculpate him. Based on all these circumstances, the court did not abuse its discretion in denying Ramirez’s motion for severance.

Ramirez asserts that even if the court did not abuse its discretion, reversal is required because of gross unfairness. He argues the prosecutor improperly linked Ramirez with count 2, with which he was not charged, during her opening statement, her questioning of witnesses, and her closing argument. He also agues that the admission of Lopez’s redacted confession led the jury to unjustifiably infer that both defendants were guilty. In her closing argument, the prosecutor told the jury that only Lopez was charged with count 2. As previously discussed, the confession was properly redacted. Also, the jury was instructed to consider Lopez’s confession against Lopez only, that count 2 was charged against Lopez, to decide separately whether each defendant was guilty, and to decide each count separately as each count is a distinct crime.

Any linkage between Ramirez and count 2 that did occur did not strengthen weak claims against him. Sufficient independent evidence existed to convict Ramirez on count 1 and count 3. Thus, we do not find that the joint trial was grossly unfair to Ramirez. (People v. Bean (1988) 46 Cal.3d 919, 940.) Finally, even if the court did abuse its discretion in denying Ramirez’s severance motion, Ramirez has not established to a reasonable probability that he would have received a more favorable result at a separate trial. (People v. Avila, supra, 38 Cal.4th at pp. 574-575.)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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[1] See Crawford v. Washington (2004) 541 U.S. 36.

[2] See People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States. (1968) 391 U.S. 123.