Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge, No. YA065541
Victor D. Martin, in pro. per.; and Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
We appointed counsel to represent appellant Martin in this matter. After examining the record, counsel filed a “Wende” brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Upon receipt of the Wende brief, we directed appointed counsel to send the record on appeal and a copy of counsel’s brief to Martin. We notified Martin that within 30 days from the date of the notice he could submit by brief or letter any grounds of appeal, contentions or argument he wished us to consider. In response, Martin sent us a letter in which he raised two arguable issues: the sufficiency of the victims’ identification testimony and the consolidation for trial of separate incidents.
We asked appointed counsel and the Attorney General to brief these issues and issues we identified from our review of the record. Based on their responses, we conclude that the trial court committed no reversible errors in this case but did err in doubling the one-year enhancements under Penal Code section 12022, subdivision (b)(1).
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEEDINGS BELOW
(1) Incident One: M. F. and J. B. (July 5, 2006)
M.F. and her 11-year-old daughter, J.B., returned home at approximately 6:15 p.m. As M.F. closed the front door, J.B. screamed “Mommy” and M.F. saw a man standing behind the door. J.B. then screamed, “Mommy, behind you,” and M.F. saw another man and a woman exiting the kitchen. She dropped her purse and cell phone and tried to comfort her daughter.
The man by the door, whom M.F. later identified as defendant Martin, asked M.F. where she kept her money. M.F. replied she only had $60 in her purse. She then told Martin she needed to use the bathroom. Martin told the other man and the woman to tie up the daughter while he took the mother to the bathroom upstairs. The accomplices tied the daughter to a chair with a cord around her waist and a belt around her ankles. They bound her wrists with duct tape. Meanwhile, upstairs, after M.F. used the bathroom Martin told her he was going to rape her because $60.00 was not enough money.
M.F. told Martin she could get him additional money if he agreed not to rape her. Martin consented to accept $500 from M.F. in lieu of raping her. She then called her employer and told him that she had been in an auto accident and needed some cash for a quick settlement. He agreed to meet M.F. at a Starbucks and give her $500. Martin and the other man drove with M.F. to get the money. The female accomplice stayed behind with the daughter who remained tied to the chair.
M.F. met her employer at Starbucks while Martin and the other man watched from close by. The employer saw the two men get out of M.F.’s car and asked her who they were. M.F. told him what was happening and asked him not to call the police because she was afraid her daughter might be hurt. Her employer gave M.F. the money and left. M.F. gave the money to the two men and the three of them drove back to her apartment.
In compliance with M.F.’s request, the employer did not call 911 but waited across the street from her home.
Once they were back at M.F.’s apartment, Martin and his accomplices took M.F.’s cell phone, two rings and a necklace and her daughter’s cell phone and left.
(2) Incident Two: N.N. (July 10, 2006)
Five days after the incident involving M.F. and her daughter, a man entered N.N.’s home while she was sleeping. Awakened by a noise, she saw Martin standing in her bedroom doorway with a gun in his hand. She offered to give him the jewelry in her parent’s bedroom and he accepted. After giving Martin the jewelry, she told him that a safe in the garage contained $1000. Before they walked to the garage, Martin took money from N.N.’s wallet, her keys and her cell phone. When they arrived in the garage, N.N. opened the garage door and started screaming. Martin closed the door, grabbed her and dragged her upstairs. He told her to get on the bed. When she tried to run, Martin threw her on the ground, sat on her, strangled her, punched her on the forehead and told her to undress. He told her if she continued to resist he would shoot her. Martin proceeded to rape and sodomize N.N. and then left in her car.
(3) Incident Three: Evading a Police Officer
Later in the morning of July 10, 2006, officer Luis Bonilla received a radio call about a stolen 2005 Honda Civic that had been used in an assault and kidnapping. A few seconds later, Bonilla saw a car matching that description. He activated his lights and siren and pursued the car. During the pursuit the Honda traveled for two blocks on the sidewalk, failed to stop at numerous signal lights and stop signs, drove against on-coming traffic and reached speeds of 50 to 80 mph in 35 mph zones. The car finally stopped when it ran into another car. Bonilla took Martin, the driver, into custody.
(4) Sentencing
A jury convicted Martin of two counts of residential burglary, false imprisonment by violence, kidnapping to commit robbery, first degree robbery, second degree robbery, home invasion robbery, sodomy by use of force, rape and evading a police officer. As to the burglaries, false imprisonment, kidnapping, second degree robbery and home invasion robbery, the jury found true the allegations of use of a knife. The jury also found Martin committed the rape and sodomy in the course of a burglary. The trial court found as to all counts that Martin had prior convictions for carjacking and taking a vehicle.
The court sentenced Martin to a total of 33 years, 8 months, plus 100 years to life plus life as follows:
Kidnapping of M.F. for the purpose of robbery
life plus 2 years
Robbery of M.F.
3 years, 4 months
Robbery of J.B.
21 years
False imprisonment of J.B.
3 years, 4 months
Sodomy of N.N.
50 years to life
Rape of N.N.
50 years to life
Robbery of N.N.
2 years, 8 months
Evading a police officer
1 year, 4 months
As to both incidents, the court stayed sentencing on the burglary convictions under section 654. Each of the sentences for the crimes against M.F. and J.B. included two years for the dangerous weapon enhancement under section 12022, subdivision (b)(1) (one year for the enhancement, doubled under the Three Strikes law).
I. IDENTIFICATION
(A) Trauma Affecting Victims’ Ability to Observe
Martin argues that there was insufficient evidence that he committed the crimes against M.F., J.B. and N.N. because their abilities to make accurate identifications of the perpetrators were impaired by the traumas inflicted on them by the crimes. We disagree.
The court instructed the jurors that in assessing eyewitness identification testimony they should consider, among other things, “the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance and duration of observation” and whether “the witness [was] under stress when he or she made the observation.” Absent any evidence to the contrary, we presume the jurors followed the court’s instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
The record shows each of the victims had ample opportunity to observe her attacker and each victim positively indentified Martin. Furthermore, DNA tests on semen collected from N.N.’s body showed a close match with saliva taken from Martin. The odds of the semen coming from someone else were 1 in 1021.
(B) Inconsistencies in M.F.’S Identification
Martin next argues there were inconsistencies in M.F.’s identification of defendant and inconsistencies between her description of her assailant’s clothing and the description given by her employer. Specifically, M.F. told the police that the man hiding behind the door, whom she later identified as Martin, was between five feet three and five feet six inches tall. The prosecution stipulated that Martin is five feet nine inches tall. The record shows Martin has prominent tattoos on his arms and neck but M.F. did not tell police that the man hiding behind the door had tattoos.
None of these matters, however, were sufficient to require the jury to reject M.F.’s identification of Martin. She identified Martin immediately from a photo lineup and unequivocally identified him at trial. The court correctly instructed the jury that it should “not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember.” The jury found M.F.’s identification credible and we have no basis for overturning that finding.
(C) Police Influence on M.F.’s Identification
Martin contends the police improperly influenced M.F.’s identification testimony by telling her that they had a rape suspect in custody whose modus operandi and physical description were similar to those of her attacker and then showing her a photo lineup, thus suggesting that her attacker was one of the men in the lineup. The evidence does not support Martin’s claim of improper influence. M.F. immediately and positively identified Martin’s picture in the photo lineup. The jury reasonably considered that she had a substantial time to become familiar with his appearance.
II. CONSOLIDATION OF OFFENSES FOR TRIAL
Martin argues the court erred in failing to sever the trial of the two incidents.
Prior to trial, Martin moved to sever the trials on the grounds that the evidence was not cross-admissible, the weak evidence of burglary in the first incident would be unfairly bolstered by the stronger evidence of burglary in the second incident, and there was a substantial danger that the graphic, inflammatory evidence of the rape and sodomy in the second incident would unduly prejudice the jurors against defendant when considering the evidence in the first incident. The court denied the motion. We affirm the court’s ruling.
The consolidation of charges stemming from separate incidents is governed by section 954. Separate crimes may be tried together if they are of the “same class,” a term the courts have interpreted broadly. (See e.g. People v. Thomas (1990) 219 Cal.App.3d 134, 139-140; People v. Lindsay (1964) 227 Cal.App.2d 482, 492.) Thus, although the first incident did not involve the commission of a sex offense while the second offense did, the first incident did involve the defendant’s threat to rape the victim and both incidents involved home invasion robberies and assaults against female victims. Joinder, therefore, was permissible under section 954.
The court has broad discretion in ruling on a motion to sever counts that legally can be tried together. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220-1221.) Indeed, it has “‘broader discretion in ruling on a motion for severance than it has in ruling on the admissibility of evidence.’ [Citations.]” (Id. at p. 1221.)
Here, evidence from the two incidents was cross-admissible to prove a common plan or scheme under Evidence Code section 1101. Both crimes involved violent home invasions, the use of force to subdue and threaten vulnerable female victims, physical restraint of the victims and the taking of money and property.
We disagree with Martin’s contention that the evidence of burglary in the first incident was weak and had to be bolstered by evidence in the second incident. The evidence of burglary in the first incident was strong because it was based on M.F.’s opportunity to closely observe Martin in her apartment and in her car.
Finally, we cannot say that the evidence of the rape and sodomy of N.N., in comparison to the facts of the first incident, were so inflammatory that they overwhelmed the juror’s judgment in fairly considering the second incident.
III. DOUBLING THE WEAPON ENHANCEMENTS
The jury found that Martin personally used a deadly or dangerous weapon in carrying out the crimes against M.F. and J.B. These findings triggered a one-year sentence enhancement for each offense. (§ 12022, subd. (b)(1).) The trial court erroneously believed, however, that these enhancements should be doubled under the Three Strikes law and thus imposed two years for each enhancement. (People v. Hardy (1999) 73 Cal.App.4th 1429, 1433.) The People agree that the court erred.
DISPOSITION
The judgment is modified by reducing the sentence on each enhancement under section 12022, subdivision (b)(1), from two years to one year. The cause is remanded to the trial court with directions to prepare a new abstract of judgment incorporating the modifications and to forward a certified copy of the new abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.