Opinion
G057497
10-03-2019
THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERTO LOPEZ, Defendant and Appellant.
Kenneth J. Vandervelde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18WF1059) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Kenneth J. Vandervelde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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A jury convicted defendant Luis Alberto Lopez of second-degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), all statutory references are to the Penal Code unless otherwise stated), but acquitted him of attempted carjacking. The court sentenced defendant to the upper term of five years on the robbery conviction.
We appointed counsel to represent defendant on appeal. Counsel filed a brief summarizing the proceedings and facts of the case and advised the court he found no arguable issues to assert on defendant's behalf. (Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).) To assist us in our independent review, counsel suggested we consider the issues discussed below.
Counsel and this court notified defendant he could file a supplemental brief on his own behalf. However, we received no supplemental brief from him and the time to file one has passed.
We have independently reviewed the entire record as required under Anders, supra, 386 U.S. 738 and Wende, supra, 25 Cal.3d 436 and, like counsel, we have found no arguable issues on appeal. Therefore, we affirm the judgment.
FACTS
We recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Villasenor (2015) 242 Cal.App.4th 42, 47-48.) A. Prosecution Evidence
One night, at about 10:00 p.m., Rafaela Santos stopped at a McDonald's restaurant on Beach Boulevard in Orange County to use the restroom. She parked and locked her car in the McDonald's parking lot.
She returned to her car about five minutes later. After getting into the driver's seat, she saw in her rearview mirror a man wearing a blue sweater or hoodie jacket opening the trunk of her car. She got out and began to argue with the man, whom she identified at trial as defendant.
Defendant apologized, saying he was not going to do anything. Santos closed the trunk and returned to the driver's seat in the car. Defendant then entered the car on the passenger side, still apologizing and saying he was not going to do anything. He was seated, but with his legs outside the car. Defendant looked nervous and "really high."
Santos became frightened and began to apologize to defendant, saying, "Please don't get mad. I'm sorry. I didn't mean to be rude to you." Then defendant removed a gun from his pants, grabbed Santos's shoulder, and pointed the gun at her face. She became "really scared," explained to him that she had children, and asked him not to shoot her.
Defendant yelled at her to give him her wallet and her money and he took her cell phone from a holder attached to the windshield. He also asked her to get out of the car and he removed the keys from the ignition.
Then, "without thinking," Santos grabbed the barrel of the gun to point it away from her. She also grabbed defendant' sleeve. He began to pull in the opposite direction and to yell, "Let me go."
Defendant became more nervous and Santos began to think the gun was fake. She let him go and he fell on his back. He then stood, started to run away, and fell again. But before he left, he took her car keys, cell phone and approximately $20 to $30.
Santos called 911 and police officers arrived moments later. Officer Giles, spoke to Santos and broadcast a description of the suspect. Officers Do and Gonzalez were in their patrol car traveling south on Beach Boulevard and then east on Indianapolis. After turning onto Indianapolis, they saw defendant, with debris on his clothing, grass and debris in his hair, and tears in his pants. Do searched defendant and found two cell phones in his front pants pocket.
While Giles was still speaking to Santos, he was notified that a suspect had been stopped. The suspect, defendant, was shown to Santos, who identified him as the perpetrator. Defendant was wearing a dark T-shirt and had scrapes to his knee and shin and dirt on his pants. Santos also identified one of the phones as hers and unlocked it.
A building on Beach Boulevard, south of the McDonald's, had three motion-activated surveillance cameras on its eastern exterior. At around 10:16 p.m., one of the cameras captured images of a person walking east from the building toward a wall behind the building. The wall rises five to six feet from the surface of the parking lot, but the ground drops on the other side, so that the distance from the top of the wall to the ground on the other side is approximately 10 feet. The images from the surveillance cameras show the person approaching the wall and then the person is not seen any longer.
Police officers found a blue jacket or sweater in the yard of a house on the other side of the wall behind the building on Beach Boulevard. Officers also found a black BB gun in an ivy adjacent to the sidewalk along Beach Boulevard, about two feet from the sidewalk. The BB gun looked and felt similar to an authentic gun. B. Defense Evidence
A police officer testified that, in a conversation with Santos a few days after the robbery, she never said the robber had asked her to get out of her car. She also did not mention to the police that the robber had apologized to her when he was getting into her car. Neither cash nor a wallet was found on defendant when he was apprehended.
During the 911 call, Santos said the robbery was perpetrated by two men, including one in a gray Toyota Prius. She also told officers at the scene that the driver of the Prius and defendant were really high.
DISCUSSION
We have independently reviewed the entire record according to our obligations under Anders, supra, 386 U.S. 738 and Wende, supra, 25 Cal.3d 436, and we have considered the issues suggested by counsel and discussed below. Like counsel, we have found no arguable issues on appeal.
(1) Did the court improperly exclude evidence of defendant's ostensibly exculpatory statements?
No. Defendant proffered evidence of certain statements he made to the police after he was arrested. Defense counsel argued these statements exhibited disordered thinking, and were admissible under Evidence Code section 1250 to show his then existing state of mind and whether he could form the specific intent necessary to commit a robbery. The court properly excluded the proffered statements as hearsay. (People v. Anderson (2012) 208 Cal.App.4th 851, 876-878.)
(2) Did the court properly admit evidence of the surveillance camera images and the jacket and BB gun found in the vicinity of the crime?
Yes. Defense counsel sought to exclude this evidence on the grounds it was not relevant, lacked foundation, was speculative, and was more prejudicial than probative under Evidence Code section 352. The court properly overruled these objections, and did not abuse its broad discretion to admit this evidence. (People v. Holford (2012) 203 Cal.App.4th 155, 167.)
(3) Did the prosecution present evidence that defendant hid the jacket and BB gun, thus allowing the court to instruct the jury with CALCRIM No. 371?
Yes. The court instructed the jury in part, "If the defendant tried to hide evidence . . . that conduct may show that (he) was aware of (his) guilt." (See CALCRIM No. 371.) The evidence set forth in the statement of facts above was sufficient to support the suggested inference and thus to warrant giving this instruction. (People v. Wilson (2005) 36 Cal.4th 309, 330; People v. Williams (1996) 46 Cal.App.4th 1767, 1780.)
(4) Did the court properly deny a defense motion to exclude evidence of defendant's prior convictions?
Yes. Defense counsel sought to bar any use defendant's prior misdemeanor and felony convictions. After careful consideration, the court indicated if defendant were to testify, he could be impeached with some but not all of his prior convictions for crimes of moral turpitude. The court did not err. (Evid. Code, §§ 352, 788, 1101; People v. Beagle (1972) 6 Cal.3d 441.)
(5) Is the evidence sufficient to support the robbery conviction?
Yes. "In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)
The elements of robbery are set forth as follows in CALCRIM No. 1600. "To prove that the defendant is guilty of [robbery], the People must prove that: [¶] 1. The defendant took property that was not (his/her) own; [¶] 2. The property was in the possession of another person; [¶] 3. The property was taken from the other person or (his/her) immediate presence; [¶] 4. The property was taken against that person's will; [¶] 5. The defendant used force or fear to take the property or to prevent the person from resisting; [¶] AND [¶] 6. When the defendant used force or fear, (he/she) intended (to deprive the owner of the property permanently [or] to remove the property from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property)."
Applying these legal principles to the evidence set forth in the statement of facts above, it is readily apparent substantial evidence supports the jury's robbery verdict.
(6) Did the court abuse its discretion in sentencing defendant to the upper term for robbery?
No. In selecting the upper term, the court considered and stated on the record the circumstances in aggravation and the absence of any circumstances in mitigation. (Cal Rules of Court, rules 4.420, 4.421, 4.423.) No abuse of discretion appears. (People v. Black (2007) 41 Cal.4th 799, 813; People v. Lai (2006) 138 Cal.App.4th 1227, 1258; People v. Steele (2000) 83 Cal.App.4th 212, 226.)
(7) Were the fines and fees imposed proper?
Yes. The standard fines and fees imposed were mostly mandatory minimums and were all entirely proper. (§§ 1202.4 [$300 restitution fine], 1202.45 [$300 parole revocation fine], 1202.5 [$10 robbery conviction fine], 1465.8 [$40 court operations assessment], & Gov. Code, § 70373 [$30 criminal conviction assessment].) In any event, defendant forfeited any contrary contention by failing to object in the trial court. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.