P. v. Munoz

Filed 3/22/07 P. v. Munoz CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Antonio Munoz, Jr. appeals a judgment following conviction of second degree robbery, burglary, and assault with a deadly weapon, with findings of personal use of a deadly weapon and two prior serious felony convictions alleged for sentence enhancement and recidivist sentencing. (Pen. Code,  211, 459, 245, subd. (a)(1), 12022, subd. (b)(1), 667, subds. (a) & (b)-(i), & 1170.12, subds. (a)- (d).)[1] We order the trial court to amend the abstract of judgment, but otherwise affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning of March 18, 2004, Alva Salgado worked alone in the El Gallo Market in Santa Maria. At approximately 8:30 a.m., Munoz entered the market. Salgado recognized him as a customer that she had served several times within the past six months. Salgado greeted Munoz but he did not reply. He demanded that she open the cash register and give him money. Munoz grabbed Salgado by her jacket, pulled her toward him, and placed a knife to her neck. She opened the cash register and he took more than $500 in currency.

Munoz wore a long-sleeved shirt, a white sports cap, gloves, and sunglasses. He spoke English without an accent.

Munoz fled the market. Salgado locked the market door and summoned police officers. The market security camera videotaped the robbery.

Salgado reviewed police "mug shots" and several photograph lineups that did not contain Munoz's photograph. She did not identify the man who robbed the market, but selected a photograph of "Philip Pineda" as one "most resembling" the robber. Later, a police officer reviewed the market videotape and recognized Munoz. Police officers then prepared a photograph lineup that contained Munoz's photograph. Salgado thereafter identified Munoz as the robber.

After his arrest, Munoz telephoned his wife from county jail. He asked her whether police officers seized a knife from his vehicle, stated that she should "wish [him] luck" because he "fucked up," and requested her to "go talk to [Salgado]. Tell her you know . . . tell her what's up."

At trial, Salgado identified Munoz as the robber. The prosecutor played the videotape of the robbery and the recording of the jail conversations.

Munoz's wife testified that he was at home at the time of the market robbery. She stated that she did not understand Munoz's jail conversation regarding her speaking to the market clerk.

The jury convicted Munoz of second degree robbery, burglary, and assault with a deadly weapon. ( 211, 459, & 245, subd. (a)(1).) It also found that he personally used a deadly weapon during commission of the crimes. ( 12022, subd. (b)(1).) The trial court found that Munoz suffered two prior serious felony convictions alleged for five-year sentence enhancement and recidivist sentencing. ( 667, subds. (a) & (b)-(i) & 1170.12, subds. (a)-(d).)

Munoz requested the trial court to dismiss the strike allegation of a 1986 robbery, pursuant to People v. SuperiorCourt (Romero) (1996) 13 Cal.4th 497. The trial court reviewed the file and considered the judicial decisions "in [Munoz's] favor," and denied the motion. The trial judge stated that his decision rested upon Munoz's long-time drug addiction, his lengthy record, and the seriousness of the current criminal offense.

The trial court then sentenced Munoz to a prison term of thirty-five years to life for the second degree robbery conviction. It imposed and stayed thirty-five-years-to-life sentences for the burglary and assault with a deadly weapon convictions, pursuant to section 654. The trial court also struck the personal use of a deadly weapon allegation. ( 1385.)

Munoz appeals and contends that: 1) the trial court erred by denying his request for a pretrial lineup; 2) the trial court abused its discretion by denying his motion to strike the 1986 robbery allegation; 3) the trial court erred by imposing the five-year sentence enhancements for count 2 (burglary); and 4) the abstract of judgment is incorrect.

DISCUSSION

I.

Munoz asserts that the trial court erred by denying his request for a pretrial lineup with the lineup participants dressed in a manner similar to that of the market robber. (Evans v. Superior Court (1974) 11 Cal.3d 617, 625 [right to lineup arises when eyewitness identification is material issue and reasonable likelihood of mistaken identification exists].) He argues that he requested a lineup prior to the preliminary examination; the market robber wore a sports cap, sunglasses, a long-sleeved shirt, and gloves; the robbery occurred quickly; and Salgado was a reluctant witness.

In an appropriate case, due process of law permits a defendant the right to a pretrial lineup before witnesses to the criminal offense. (Evans v. Superior Court, supra, 11 Cal.3d 617, 625.) "The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.[]" (Ibid.) The trial court possesses broad discretion in determining whether eyewitness identification is a material issue. (Ibid.)

Here the trial court did not err in denying a physical lineup because there was no reasonable likelihood of mistaken identification. Salgado knew Munoz as a customer of the market whom she had served in recent transactions. She recognized his photograph in a photographic lineup and identified him at the preliminary examination and at trial. Moreover, a police officer who knew Munoz recognized him when he viewed the market videotape although Munoz wore a long-sleeved shirt, a cap, gloves, and sunglasses. This additional identification substantially supports the trial court's exercise of discretion in concluding there is no reasonable likelihood of mistaken identification. (People v. Rivera (1981) 127 Cal.App.3d 136, 149.) Although the possibility of a mistaken identification exists in any case, a reasonable likelihood of mistaken identification must exist to require a physical lineup. (People v. Abdel-Malak (1986) 186 Cal.App.3d 359, 369.)

II.

Munoz contends that the trial court abused its discretion by declining to strike his 1986 robbery allegation, pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497. He points out that he drove the "getaway" vehicle for an accomplice who took the victim's purse as she loaded items into her vehicle. Munoz asserts that the trial court unfairly focused upon his criminal history, rather than the particulars of his background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) He adds that the 1986 robbery conviction is remote in time and that his criminal history otherwise involves drug offenses.

Pursuant to section 1385, subdivision (a), the trial court may strike a prior felony strike conviction "in furtherance of justice." (People v. Williams, supra, 17 Cal.4th 148, 161.) The trial court and the reviewing court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part . . . . " (Ibid.) At the very least, the reason for dismissing a strike conviction must be that which would motivate a reasonable judge. (Id., at p. 159.) We review the trial court's ruling under a deferential abuse of discretion standard. (Id., at p. 162.)

The trial court did not abuse its discretion. It stated that it considered Munoz's age, the remoteness of the robbery conviction, and his non-violent criminal record. Nevertheless, the trial court declined to strike the prior conviction because of the violent nature of the current offense and Munoz's long-standing criminal record and drug addiction.

Munoz "has led a continuous life of crime after the prior." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [20-year-old felony conviction is not remote given defendant's criminal history following conviction].) He has suffered convictions for drug offenses, petty theft with a prior, driving without a license, and residential burglary. During the intervening years, Munoz "did not refrain from criminal activity" and "he did not add maturity to age." (People v. Williams, supra, 17 Cal.4th 148, 163.) Throughout his adult life, Munoz has shown a pattern of criminal behavior involving property crimes and substance abuse. (People v. Gaston (1999) 74 Cal.App.4th 310, 320 ["unrelenting record of recidivism" compels conclusion that defendant falls within spirit of Three Strikes law].) Given Munoz's criminal history and substance abuse after 1986, "there is simply nothing mitigating about a [19-year-old] prior." (People v. Humphrey, supra, 58 Cal.App.4th 809, 813.)

Moreover, Munoz suffers from a long-standing drug addiction that he has been unwilling or unable to treat. "[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.)

III.

Munoz argues that the trial court erred by imposing the five-year prior serious felony conviction enhancements pursuant to section 667, subdivision (a), for count two, burglary. He reasons that the burglary is not a "serious felony" offense within the meaning of section 667, subdivision (a), because the trial court struck the personal deadly weapon use finding of section 12022, subd. (b)(1). ( 1192.7, subd. (c)(23) [serious felony is any felony in which the defendant personally uses a deadly weapon].)

During sentencing, the trial judge stated: "With regard to count II, I am going to strike or stay pursuant to section 1385 of the Penal Code, the [section] 12022 (b)(1) allegation or punishment . . . ." The trial court later sentenced Munoz, however, to two five-year enhancements pursuant to section 667, subdivision (a), for count 2.

The trial court did not err. Section 1385, subdivision (c)(1), empowers the trial court to "strike the additional punishment for [an] enhancement in the furtherance of justice . . . ." Striking the punishment for the personal weapon use enhancement here did not alter the nature of the criminal offense charged in count 2-a burglary committed by defendant with the use of a deadly weapon. The prosecutor pleaded and proved the personal weapon use allegation, the jury expressly found it to be true as alleged for each count, and the trial court found that the charged burglary offense was a "serious felony" within the meaning of section 667, subdivision (a), during the court trial of Munoz's prior felony convictions.

IV.

Munoz asserts that the abstract of judgment does not reflect that the trial court stayed imposition of sentence pursuant to section 654 for counts 2 (burglary) and 3 (assault with a deadly weapon). Instead, it incorrectly states that Munoz received prison terms to be served concurrently to count 1 (second degree robbery). The Attorney General concedes.

The trial court is directed to amend the abstract of judgment to reflect a stay of sentence pursuant to section 654 regarding counts 2 and 3, and to forward the amended abstract to the Department of Corrections. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Barry Hammer, Judge

Superior Court County of Santa Barbara

______________________________

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

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