Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA083919, Joan Comparet-Cassini, Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Tyrrell Hagler appeals from the judgment entered following a jury trial which resulted in his conviction of three counts of first degree, residential robbery (Pen. Code, § 211), during the commission of each of which he personally used a firearm (§ 12022.53, subd. (b)) and a principal was armed with a firearm (§ 12022, subd. (a)(1)), first degree burglary with a person other than an accomplice present (§ 459), during the commission of which he personally used a firearm (§ 12022.5, subd. (a)) and a principal was armed with a firearm (§ 12022, subd. (a)(1)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The trial court sentenced Hagler to 20 years 8 months in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution’s case.
On October 28, 2009, Nickolas McKiness lived with four roommates in Apartment No. 26 in an apartment complex at the intersection of Atherton Street and Ximeno in Long Beach. Apartment No. 26 was located toward the east end of the complex.
That evening, at approximately 9:30, McKiness was in his room, sitting on his bed while working on his laptop computer. He had on headphones and was listening to a movie while typing. He had just made “contact with a friend... over instant messaging” and “was getting ready to leave” the apartment when he walked into the hall and was confronted by a man holding a black, “snubnose” revolver. The man was approximately two feet away from McKiness and was holding the gun approximately six inches from McKiness’s face. The gunman asked McKiness “where the weed was” and McKiness told him that he “didn’t know anything about that.”
Holding the gun at his back, the gunman escorted McKiness to the living room, where he sat down in a “bean bag[]” and leaned up against a wall. When they reached the living room, the gunman walked over to appellant, Tyrell Hagler, who was standing approximately 15 feet away, next to the apartment’s front door. McKiness recognized Hagler because he had come to the apartment two or three days earlier looking for one of McKiness’s roommates, Tom Iturraran.
Hagler was pointing a black revolver at McKiness and two of his roommates, Jordi Camps and Justin Sotelo. Camps was sitting on the couch and Sotelo was sitting in a chair. Both men were holding their heads in their hands and appeared to be “really nervous.” Hagler’s accomplice asked the three men “more questions about weed[:] where is the stuff kept? Where is Tom at? When is he going to be back?” McKiness told Hagler’s accomplice that he “didn’t know anything about it.” Hagler’s accomplice then told the three men to “keep sitting down, to not try anything, and that if [they] tried anything, [they would be] pistol whipped or shot.” Hagler, too, made threats. He told the men that they “better not try anything funny or he was going to [pistol whip or] shoot [them].”
While Hagler continued to point his gun at the three men, his cohort began checking the rooms in the apartment. From various rooms he took items such as an Apple laptop computer, a Blackberry, cell phones, car keys, a “play station” and video games. Hagler “grabbed [a] laptop off the kitchen table.” Hagler’s accomplice then found a black backpack with black and white checkered straps. He began to put things into it and after Hagler’s accomplice had filled the backpack, the two men stood by the door for a second, looked around, then opened the door and ran out of the apartment. Hagler and his accomplice had been in the apartment for approximately 30 minutes.
Throughout the entire incident, McKiness was afraid for his life. In addition, McKiness had seen Camps and Sotelo rocking back and forth in their chairs, shaking their heads, and Camps had been “real pale the whole time [Hagler and his accomplice] were in there.”
After Hagler and his cohort left, McKiness found a phone and called the police. When they arrived, police officers questioned McKiness, Sotelo and Camps, then escorted them to another apartment in the complex where the three men saw the items Hagler and his accomplice had taken from them.
According to Jordi Camps, he was in the living room with Justin Sotelo when someone knocked on the door to their apartment. Believing that it was a friend, Camps and Sotelo told whoever was knocking to come in. As Camps got up and walked toward the door, he was greeted by a man pointing a gun at his stomach. Camps backed up and the intruder told him and Sotelo to sit down on the couch. Camps sat on the couch while Sotelo sat on a nearby chair. A second man also entered the apartment. The second man, who continuously pointed a gun at Camps, Sotelo, and later at McKiness, was “pretty much controlling [them]” by “making sure [they] didn’t move [and]... didn’t do anything. [They] just sat there and waited for the other guy to get the stuff.” Camps identified Hagler as that second man.
Camps had seen Hagler approximately two weeks earlier when he had come to the apartment to buy “weed” from one of Camps’s roommates, Tommy Iturraran. On October 28, 2009, Hagler came to the apartment with a gun and an accomplice and asked Camps, Sotelo and McKiness if they had “weed.” Camps, Sotelo and McKiness told the two men that they did not and that “Tommy was the one [who] had it.”
Throughout the incident, Camps “thought [that] if [they] didn’t do anything [the two intruders] wouldn’t do anything” to Camps, Sotelo and McKiness. They “just had to be quiet until [the two men] finished doing whatever they were doing and grabbing whatever they were grabbing.” However, Camps believed that if he had done or said anything to Hagler or his cohort, he “would [have been] shot.”
On October 28, 2009, Randy German was a security guard at the “Crossing at the Bay” apartment complex in Long Beach. At approximately 10:00 o’clock that evening, German was sitting in his office doing “documentation” when he “overheard a loud noise coming [from the] east” end of the complex. German looked out the window of his office and saw “two gentlemen running out toward the parking lot.” He got up and came out of his office and overheard one of the men tell the other to “run” as the two men headed south, toward unit 8 on the southwest side of the complex. One of the men was holding a dark backpack, with black and white checkered straps. As German watched, the two men entered Apartment No. 8.
German decided to walk around the complex. As he was walking, he noticed a number of police officers and he walked toward them to “see what was going on.” He told the officers about the two men who had been running toward Apartment No. 8 because he thought “they looked suspicious.”
Long Beach Police Officer Tristan Corbett was dispatched to 4720 Atherton Street, Apartment No. 26 on the evening of October 28, 2009. Corbett initially received a call indicating there was a “person with a gun” there. The call was then changed to indicate that a robbery had occurred. When Corbett arrived at the scene, he was approached by a security guard named German. After speaking to German, Corbett went to Apartment No. 8 in the same complex believing that there might be “two armed felons inside.” Corbett and other officers set up an “emergency action team” and were “prepared to call the occupants outside in case there was... another robbery occurring.” However, when the officers “called out the occupants, ” two women and some children came out. Officers then searched the apartment and found some of the items which had been taken from McKiness, Sotelo and Camps, including the backpack, two laptop computers and cell phones, all of which were sitting on the floor next to the couch.
Later in the evening, police officers escorted Camps, Sotelo and McKiness to Apartment No. 8 where they saw and identified “all of [their] stuff, ” including the backpack, and Camps’s keys.
Long Beach Police Detective Nancy Mora works in the “robbery detail.” On November 4, 2009, she contacted Jordi Camps, gave to him certain admonishments, then showed to him a “six-pack, ” or a group of six photographs. Camps immediately chose photograph 3, a photograph of Hagler, then stated, “ ‘That is the second guy who came in and stayed at the door with the gun.’ ”
Hagler was arrested on December 22, 2009. It was stipulated that he had committed a prior felony.
b. Defense evidence.
At approximately 10:00 p.m. on October 28, 2009, Long Beach Police Officer Francisco Mora responded to a call indicating a “possible robbery [had occurred] at 4720 Atherton, apartment 26, in Long Beach.” When Mora arrived at the apartment, he spoke with McKiness. After interviewing McKiness, Mora prepared a police report documenting what McKiness had told him. McKiness had stated that “he was inside his bedroom when a suspect walked into [the room] and pointed a gun at him[.]” McKiness had also indicated that “when he walked into the living room he saw another suspect... standing in the living room by the front door[.]” McKiness never stated that the man standing in the living room by the door “pointed a gun at him or the others.” In fact, McKiness never stated that the “person, the one in the living room, even had a gun[.]” According to Mora’s report, the man in the living room did not threaten McKiness and his roommates and did not grab a “laptop and put it in the backpack.” Mora’s report indicated that it was the other suspect, the one who had gone into McKiness’s bedroom, who threatened McKiness and his roommates with a gun and took their property, including the laptop on the kitchen table.
Mora spent approximately 15 minutes interviewing McKiness. During that time, McKiness seemed frightened and nervous. He told Mora that he “feared for his life.” It had been Mora’s experience that, “when a witness is scared and nervous when they talk to you, [it’s] possible that they will leave things... out[.]”
2. Procedural history.
Following a preliminary hearing, on January 28, 2010 an information was filed alleging in the first three counts that Hagler committed first degree residential robbery (§ 211), during which he and a principal were armed with a firearm (§ 12022, subd. (a)(1)) and he personally used a firearm (§ 12022.53, subd. (b)). In count 4 it was alleged that Hagler committed one count of first degree burglary (§ 459), during which he and a principal were armed with a firearm (§ 12022, subd. (a)(1)) and he personally used a firearm (§ 12022.5, subd. (a)). Count 5 alleged that Hagler was a felon in possession of a firearm (§ 12021, subd. (a)(1)).
Hagler pleaded not guilty to all counts and decided he wished to have the matter adjudicated by a jury. However, before trial, Hagler indicated that he wanted to address the court about complaints he had regarding his counsel. The trial court cleared the courtroom and held a Marsden hearing. During the hearing, Hagler indicated that, among other things, he believed that his counsel was not adequately communicating with him and that she had improperly refused to give him his “paperwork.” When Hagler then indicated that he just did not feel comfortable with his appointed counsel, the trial court stated that she was “doing exactly what she should do” and denied Hagler’s motion.
People v. Marsden (1970) 2 Cal.3d 118.
On February 16, 2010, the matter was called for a pretrial conference. Hagler again indicated that he was dissatisfied with his court appointed counsel and, accordingly, the trial court held a second Marsden hearing. Among other issues, Hagler again indicated that he wanted his “paperwork.” The trial court informed him that he was not entitled to his paperwork and that it appeared his counsel was acting appropriately when she offered to read to him the contents of the police report and other documents. When Hagler indicated that he and his counsel were “not seeing eye to eye, ” the trial court indicated that was not a sufficient reason to appoint new counsel and it denied his Marsden motion.
On March 1, 2010, as the parties were discussing discovery issues, Hagler again stated that his relationship with his counsel was “not working.” The trial court held a third Marsden hearing, during which Hagler again indicated that he wanted his paperwork and that he and his appointed counsel were simply not getting along. After listening to Hagler’s complaints and counsel’s remarks, the trial court determined that counsel was “not acting below that required of counsel” and denied the Marsden motion.
Following the presentation of evidence, the trial court addressed Hagler’s counsel and stated: “Does he understand that if the jury comes back with verdicts of guilty, then there has to be a decision about the prior either by [way of] a jury or by [way of] a court trial? What does he wish to do?” Counsel responded: “He does not want a court trial or a jury trial, and he may just end up admitting that....” After the court then advised Hagler of his “right to present evidence, ” his “right to counsel, ” his “right to cross-examine” witnesses against him, his “right not to incriminate [him]self” and his right to a jury trial, Hagler waived his right to a jury trial on his prior convictions.
The jury was instructed on the morning of June 15, 2010. It began deliberating that day at 11:55 a.m. At 2:05 p.m., the jury’s foreperson informed the trial court that the jury had reached verdicts.
The jury found Hagler guilty of three counts of first degree residential robbery in violation of section 211 and found true the allegations that, during the commission of the offenses, he personally used a firearm pursuant to section 12022.53, subdivision (b) and a principal was armed with a firearm pursuant to section 12022, subdivision (a)(1). The jury also found Hagler guilty of first degree burglary in violation of section 459 and found true the allegations that, during the offense, he personally used a firearm within the meaning of section 12022.5, subdivision (a) and a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). Finally, the jury found Hagler guilty of the crime of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1).
At proceedings held on July 22, 2010, the trial court found that, on July 26, 2009, Hagler had been convicted of “grand theft person” in violation of section 487, subdivision (c). The trial court noted that Hagler had been convicted of additional crimes in 2009. On April 25 of that year, Hagler had pled guilty or no contest to petty theft and was granted probation. Within two months, Hagler committed additional crimes: unlawful fighting in violation of section 415 and resisting or obstructing a public officer in violation of section 148. In all of these instances he had been granted probation. The trial court then indicated that Hagler had “three cases in the span of three months in the year 2009 and each time he [had been] given probation and each time he violate[d] probation until finally he commit[ted] this crime, which is the most heinous of all. ” The court continued, “That is a terrible criminal record within the space of a year. He has committed four separate criminal incidents.”
The trial court sentenced Hagler to the upper term of six years in prison for the robbery alleged in count 1. For his personal use of a firearm during the offense, the court imposed a consecutive term of 10 years. For the allegation that Hagler and a principal were armed with a firearm, the trial court imposed, then stayed in accordance with section 654, a sentence of one year. For count 1, the trial court imposed a total sentence of 16 years in prison.
For the robbery alleged in count 2, which “involved a separate victim, ” the trial court imposed one-third the mid-term, or one year four months. The trial court then indicated that, “since he appeared to be the leader in this residential robbery, ” it was imposing one-third the mid-term, or three years four months, for Hagler’s personal use of a firearm during the offense, the term to run consecutively to all other terms imposed. Accordingly, for count 2, the trial court imposed a total term of four years eight months in prison, the term to run consecutively to that imposed for count 1.
For Hagler’s conviction of count 3, the trial court imposed the mid-term of four years and a 10-year enhancement for his personal use of a handgun. The court stayed the term it would otherwise have imposed for the finding that a principal was armed with a firearm, then ran all the terms imposed for count 3 concurrent to the terms imposed for counts 1 and 2.
For Hagler’s conviction of burglary as alleged in count 4, the trial court imposed, then stayed pursuant to section 654, the mid-term of four years. For his personal use of a firearm during the offense, the court imposed, then stayed pursuant to section 654, the mid-term of four years. For his conviction of being a felon in possession of a firearm as alleged in count 5, the court imposed, then stayed, the mid-term of two years, the term to run concurrently with those imposed for counts 1 and 2.
In total, the trial court sentenced Hagler to 20 years 8 months in prison. Hagler was awarded presentence custody credit for 213 days actually served and 31 days of good time/work time, or 244 days. The trial court ordered him to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), a suspended $10,000 parole revocation restitution fine (§ 1202.45), a $150 court security fee (§ 1465.8, subd. (a)(1)), and a $150 criminal conviction assessment (Gov. Code, § 70373).
Hagler filed a timely notice of appeal on July 22, 2010.
This court appointed counsel to represent Hagler on appeal on October 29, 2010.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed January 27, 2011, the clerk of this court advised Hagler to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On February 23, 2011, Hagler filed a letter in which he asserted that the trial court violated his right to discovery when it denied his request for information which the prosecution had regarding the “second suspect.” Police officers apparently showed to a witness a “six-pack” with a photograph of someone who resembled Hagler’s accomplice. However, the witness did not identify the individual as being the man who, with Hagler, committed the robberies. As the trial court correctly concluded, a prosecutor is not required to inform Hagler or his counsel of instances during which no suspect is identified. The information would do nothing to exonerate Hagler. (See Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 367, 393.)
On March 1, 2011, Hagler filed a second letter. There, he asserts that there is “nothing that connects [him] to this crime.” He claims the victims “sold marijuana and [were] robbed by [two] African American blacks and figured [he] had something to do with it....” He asserts McKiness was “coached on [his] testimony.” Hagler then “pray[s] and hope[s] the court takes this in consideration [and] all... the evidence[] that’s not physically placing [him] at this crime scene.”
Hagler’s contention that the evidence does not “physically plac[e]” him at the “crime scene” is simply untenable. This is not a case where the victims sold marijuana and, because they were robbed by African-Americans, simply decided that Hagler “had something to do with it.” The two victims who testified stated that they were not involved in the sale of marijuana and both identified Hagler as the robber who stood by the door aiming his gun at them. Their testimony was consistent and credible. There is no evidence that either witness was “coached.” Finally, and perhaps most importantly, the jury believed McKiness and Camps. It reached a verdict finding Hagler guilty of the charged robberies and burglary in only two hours.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.).
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J., KITCHING, J.