Opinion
B227394
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. ALBERT CARMONA, Defendant and Appellant.
Flier and Flier, Andrew Reed Flier and Theodore S. Flier, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA061994)
APPEAL from a judgment of the Superior Court of Los Angeles County, Darlene E. Schempp, Judge. Affirmed.
Flier and Flier, Andrew Reed Flier and Theodore S. Flier, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
Alberto Carmona appeals from the judgment entered following his conviction by jury of carjacking (Pen. Code, § 215, subd. (a)) with a finding he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C) & (4)). The court sentenced appellant to prison for 15 years.
FACTUAL SUMMARY
1. People's Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 6:00 p.m. on April 19, 2009, Savuthy Chan (the victim) and Sonara Vann were in a Lexus parked in the driveway of an apartment complex near 14432 Valerio in Los Angeles. The Lexus belonged to Chan's father. Chan was seated in the driver's seat and Vann was seated in the rear passenger seat.
Vann testified as follows. Chan and Vann were waiting for three friends to enter the Lexus so the five could go play basketball. The three friends were Reno, Savouth Chea, and Bundun. None of the five were gang members. While Chan and Vann were waiting, Vann observed a Nissan Altima about 70 feet in front of Vann. Appellant, about 20 feet from the Altima, yelled to Reno " 'Where are you from?' " No one was in the front passenger seat of the Lexus, Vann was looking straight towards the Altima, and Vann saw appellant.
Reno replied he was not from anywhere. Appellant, and a friend of appellant, yelled, " 'Fuck Asian Boyz.' " Appellant was looking at Reno. Reno, afraid, went into the complex. Chan backed up the Lexus, then decided to ignore the situation and drove back to the same location in the driveway but on its left side. Reno and Bundun later entered the Lexus.
Appellant and his friend entered the Altima, and appellant sat in its driver's seat. Appellant backed up the Altima until it was next to the Lexus, stopped on the right side of the Lexus for about a second, and looked. Appellant then continued backing up. Appellant stopped about 100 feet away. Chea entered the Lexus, and Chan drove away with his four friends.
However, Chan drove back after realizing no one had brought a basketball. Chan parked the Lexus facing south in the driveway, and Reno exited to get a basketball. While the other four males were waiting in the car, they could see appellant about 100 feet away. Appellant and two of his friends were outside the Altima, facing northbound towards the five males, and throwing gang signs. At the time, appellant was looking at the five males.
Appellant and his friends entered the Altima, which then proceeded northbound past the Lexus a short distance, then stopped a little less than 10 feet from the Lexus. Appellant exited the rear passenger side of the Altima, and one of his friends exited the driver's side of the Altima. Appellant simulated a gun in his waistband under his shirt, and approached Chan, who was seated in the driver's seat of the Lexus. Appellant asked Chan if he was from Asian Boyz. Appellant's friend was on the left side of the Lexus, behind its driver's seat, and he too was simulating a gun in his waistband. At some point, appellant's friend went to the passenger side of the Lexus.
During redirect examination, Vann denied seeing appellant's friend go to the passenger side of the Lexus.
Everyone in the Lexus was afraid and denied affiliation with the Asian Boyz gang. Appellant, using profanity, told everyone to exit the Lexus, and all five occupants eventually complied. About six minutes or less passed from the time appellant and his friend stopped, exited the Altima, and yelled at the five to exit the Lexus, to the time the five in fact complied. Vann walked away and entered an apartment. Vann also testified about two minutes or less passed from the time appellant and his friend exited the Altima to the time Vann exited the Lexus and walked away. During the incident, Chan was looking at appellant and his friend, and Chan was very afraid.
Vann, looking through a window in the apartment, saw the Lexus collide into a nearby gated basketball court, then collide into something else and go towards Valerio. Vann was looking down through the apartment window, had a clear view inside the Lexus, and clearly saw appellant inside the Lexus when it crashed. Vann did not see appellant enter the Lexus, but Vann saw appellant, illuminated by sunlight, drive the Lexus out a gate and drive away.
Appellant was wearing a white baggy T-shirt with short sleeves, and blue jeans. Appellant had a tattoo on one of his arms. Appellant's friend was wearing a tank top and had tattoos on his arms and chest, up to his collarbones.
Vann thought he told police about the tattoo on the arm. During a prior hearing, Vann testified he did not remember telling the police officer who took the report that the person had tattoos. During the prior hearing, Vann also testified he told the officer that maybe the person had tattoos.
On May 7, 2009, Vann identified a photograph (photograph No. 2) of appellant and wrote on an admonition form that "I think the number two person . . . [¶] . . . [¶] because he had a fat face. He came to the driver's side, hand in his waist, and took the car and drove it and wrecked it." During a follow-up interview with Los Angeles Police Detective Peter Miranda, Vann indicated appellant "had tattoos on one of his arms." Vann told Miranda that appellant's friend had tattoos all over his arms and chest. Vann positively identified appellant at trial as the person who came up to Vann and Vann's friend and took the Lexus.
Chea testified as follows. When the five friends returned to get the basketball, Chan was driving and Chea was in the front passenger seat. Chan parked the Lexus facing south in the driveway. Chea exited to get some items and Reno exited to get the basketball. Chea later reentered the car and the four waited for Reno. The Altima, traveling northbound, drove up and stopped so that the driver's door of each car was next to each other.
Two men exited the Altima. One of the men from the "driver's side" of the Altima, i.e., the first man, approached Chan on the driver's side of the Lexus, simulated a gun in his pants, yelled at Chan, and, using profanity, asked "where are [they] from." Chea identified that man at trial as appellant.
During cross-examination, Chea testified appellant was yelling at the five males more than 10 seconds. Appellant then, using profanity, told everyone three or four times to exit the Lexus, then appellant's companion came to the passenger's side of the Lexus. Chea focused on appellant until appellant's companion began yelling at Chea. Chea had been focused on appellant's belt, from which Chea thought appellant was going to retrieve a gun.
When Chea first saw appellant, appellant was "pretty close" to Chan's window, i.e., the driver's side window of the Lexus. Appellant's yelling and simulation of a gun drew Chea's attention. Chea testified it was coming up "right in [Chan's] face, . . . You could see him." Appellant was perhaps about a foot and one-half from the Lexus.
During redirect examination, Chea testified as follows. Appellant was hunched down when appellant was simulating a gun and talking to Chan, and that was how Chea could see appellant. Appellant was "in front of your face." Chea had a clear view of appellant's face and looked at it for about three seconds.
Chea exited the car and, while later walking away, saw appellant enter the driver's side of the Lexus. Appellant's friends entered the Lexus also. Chea did not see appellant drive away. The Altima from which appellant had exited was depicted in a photograph (People's exhibit No. 4, which was admitted in evidence).
On May 9, 2009, Miranda showed Chan, Chea, and Vann the photograph of the Altima, and each of them identified it.
Appellant was wearing a white, short-sleeved T-shirt and "really baggy jeans." Appellant's companion was wearing a white tank top. Chea did not remember if appellant had tattoos, but appellant's companion had tattoos on his neck and collarbone.
On May 7, 2009, Miranda showed Chea a photographic identification folder, and Chea identified a photograph of appellant (photograph No. 2) as depicting the person who committed the crime. When Chea identified photograph No. 2, Chea, because he was nervous, wrote that he thought it was photograph No. 2, instead of writing that he knew it was photograph No. 2. Chea told Miranda that Chea saw the person standing at the driver's side window for about three seconds. Chea stared at that person the entire time, and testified "he was right in front of me, . . . I can't miss him." Chea told Miranda that appellant's friend wore a tank top and had a tattoo on his collarbone. At trial, Chea positively identified appellant as the person who approached Chea and Chea's friend and, using force or fear, took Chan's car.
Miranda testified as follows. On May 7, 2009, Miranda showed photographic identification folders to Chan, Chea, and Vann, separately. After they made their identifications, Miranda met with the three a couple of weeks later. Vann clarified that the suspects' actions in the initial investigative report were reversed and, in fact, the person whom Vann had identified in the photographic folder was the person who had tattoos on his arm and who had gone to the driver's side of the Lexus. Vann said the other suspect had tattoos on his neck and other areas. Chea identified the photograph of appellant as depicting the person who came to the driver's side of the Lexus and demanded it.
Los Angeles Police Officer Ralph Brown, a gang expert, testified as follows. Appellant was a member of the Valerio Street gang, which was a criminal street gang. Appellant had on his right forearm a gang tattoo that said VST. VST was a common sign for the Valerio Street gang. The Valerio Street gang and the Asian Boyz gang were rivals. Brown opined at trial that the present offense was committed for the benefit of, or in association with, the Valerio Street gang.
2. Defense Evidence.
In defense, Chan testified that the man who approached the driver's side window of the Lexus was bald and had tattoos on his chest, collarbone, and all over his body. Chan similarly described that man to police, and at a prior hearing. At the time of the incident, Chan "was freaking out."
During cross-examination, Chan corroborated that two persons were throwing gang signs, saying Valerio Street, and saying "Fuck Asian Boys." About 30 minutes later, an Altima drove a little past the Lexus, stopped, and two persons exited the Altima. The two persons who exited the Altima were the same two persons who earlier had been throwing gang signs. After the two persons exited the Altima, one went to the driver's side of the Lexus where Chan was, and the other went to the passenger side of the Lexus. One was wearing a tank top and one had a tattoo on his arm. The person on the driver's side of the Lexus simulated a gun in his waistband and asked Chan where he was from. Both persons who had approached the Lexus told Chan to exit the Lexus. Chan testified he exited the Lexus and "they took the car and drove it off."
A couple of weeks after the incident, police showed Chan photographs. He identified photograph No. 2 on People's exhibit No. 9B as depicting the person who took the Lexus. Chan did not want to testify at trial or identify anyone, and he feared retaliation. During redirect examination, Chan gave conflicting testimony as to whether he had identified anyone at the prior hearing. Chan was about 50 percent certain that the person depicted in the photograph was the person who took the Lexus.
Los Angeles Police Officer Kevin Johnson testified as follows. Johnson had been an officer for about four and one-half years. On April 19, 2009, Johnson spoke to Chan, Chea, and Vann. Each gave the same basic description of the person who took the car as, inter alia, a bald male Hispanic wearing a white tank top and having a large tattoo on his chest. Chan, Chea, and Vann each said there were two suspects. Chea clarified that the second suspect was wearing a T-shirt. A white T-shirt would not expose a collarbone.
Chan was the first witness with whom Johnson spoke, Chea was the second witness Johnson interviewed, and Vann was "witness number 3." Johnson did not explicitly testify whether he interviewed Chan, Chea, and Vann together or separately. Johnson spent most of his time interviewing Chan. Chan was very nervous and had an accent. Johnson testified Chan was somewhat difficult to understand, but Johnson "reviewed it with him."
3. Stipulations.
The parties stipulated the Altima depicted in People's exhibit No. 4 was registered to Mrs. Carmona, and that Los Angeles Police Officer Anthony Smith went to appellant's residence, saw the Altima there, did a computer check, and determined the Altima was registered to appellant.
ISSUES
Appellant claims (1) there was insufficient evidence he committed carjacking and (2) he was denied effective assistance of counsel at trial.
DISCUSSION
1. There Was Sufficient Evidence Appellant Committed Carjacking.
Appellant claims there was insufficient evidence he committed carjacking. Appellant does not dispute the elements of carjacking (see People v. Gray (1998) 66 Cal.App.4th 973, 984, fn. 5) were satisfied by the evidence, but argues there was insufficient evidence identifying appellant as the carjacker. He urges, inter alia, that the suspect descriptions were vague, appellant was initially described as having prominent collarbone tattoos, only Vann changed this description a month later, and the clothing description of the suspects was vague. He also urges appellant never confessed to the crime, there was no physical or scientific evidence connecting him to the crime, and there was no ownership or possessory connection of appellant to the suspect vehicle depicted in People's exhibit No. 4.
However, our power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.) We have recited the pertinent facts, including evidence identifying appellant as a carjacker. Vann and Chea identified a photograph of appellant as depicting the person who committed the crime, and both positively identified appellant at trial as the person who committed it. There was sufficient evidence that appellant was the carjacker who approached the driver's side of the Lexus. Even if there was ambiguity as to whether appellant was the person who approached the driver's side, as opposed to the passenger's side, of the Lexus, there was sufficient evidence that two persons (eventually one on either side of the Lexus) committed the carjacking, and that appellant was one of those two persons.
We conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed carjacking. None of the cases cited by appellant, or his arguments, compel a contrary conclusion.
For example, appellant asserts "It is also interesting to reference that the government completely failed to connect People's # 4 (Photo of suspect vehicle, Silver Altima) to Appellant. Again, the record is silent as to where and whose Altima this was and under what situation [it was] located." However, Vann identified People's exhibit No. 4 as depicting the Altima from which appellant exited. Chan (a defense witness), Chea, and Vann identified to Miranda the Altima in People's exhibit No. 4. The parties stipulated to the effect the Altima was at appellant's residence and was registered to appellant and Mrs. Carmona.
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2. Appellant Was Not Denied Effective Assistance of Counsel.
a. Pertinent Facts.
After appellant's conviction in this case, he, through one of his present appellate counsel, attorney Andrew Flier, filed a motion for a new trial on the ground of, inter alia, newly discovered evidence. Attached to the motion was the declaration of Flier which indicated, inter alia, that appellant was innocent, and that statements attached to the motion supported an alibi defense which was not presented at trial.
Also attached to the motion were three unsigned purported May 2010 reports of a defense investigator relating statements allegedly made to the investigator by appellant's wife, mother, and mother-in-law, respectively. The reports essentially indicate as follows. Appellant's wife, mother, and mother-in-law told appellant's previous trial counsel, attorney Larry Larson, that appellant had an alibi, i.e., he was at a barbeque when the present offense occurred. Larson indicated he would not use the information from the three because no one would believe it given the relationship between the three and appellant. The three did not raise the issue again because they trusted Larson.
Also attached to the motion was a list of names and addresses of several other persons who allegedly could corroborate appellant's alibi defense. Flier's declaration suggests the list was prepared by the investigator. No declarations under penalty of perjury from Larson, appellant's wife, appellant's mother, appellant's mother-in-law, or any of the above mentioned several other persons were attached to the motion.
b. Analysis.
Appellant claims he was denied effective assistance of counsel because his trial counsel (1) failed to investigate this case and (2) failed to present logical defense witnesses, including appellant and an eyewitness identification expert. We reject the claim.
Appellant's showing is largely based on unsigned, unsworn, multiple inadmissible hearsay from alleged reports of the defense investigator relating alleged statements and/or knowledge of appellant's relatives and/or acquaintances. Moreover, the decision as to whether to call witnesses is a matter of trial tactics and strategy which a reviewing court generally may not second-guess. (Cf. People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Appellant's trial counsel reasonably could have believed an alibi defense would have been fabricated.
Appellant argues Larson did not contact or utilize an eyewitness identification expert. The record does not demonstrate Larson failed to contact, or consult with, such an expert. In any event, Larson reasonably could have refrained as a tactical matter from contacting an eyewitness identification expert or presenting testimony from same, given the other evidence identifying appellant. We note the court, using CALJIC No. 2.91, instructed the jury on the burden of proving identity based solely on eyewitnesses and, using CALJIC No. 2.92, instructed on factors to be considered in proving identity by eyewitness testimony. None of appellant's remaining arguments has merit.
The record sheds no light on why Larson allegedly failed to act in the manner challenged, the record does not reflect Larson was asked for an explanation and failed to provide one, and we cannot say there simply could have been no satisfactory explanation. We reject appellant's ineffective assistance claim, since he has failed to demonstrate prejudicial constitutionally-deficient representation. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
CROSKEY, Acting P. J.
ALDRICH, J.