Opinion
G055457
12-13-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL MORA MENDOZA, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael D. Butera, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NF1309) OPINION Appeal from a judgment of the Superior Court of Orange County, Ronald Lawrence Bauer, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Daniel Mendoza challenges his conviction for second degree robbery based on evidence he stole items from a grocery store. He contends the trial court erroneously allowed the People to present an incomplete version of his response when asked by a store employee if he had a receipt. Mendoza also claims the court committed instructional error by adding a duplicative force or fear instruction to the robbery count. We disagree with each contention, and affirm the judgment of conviction.
FACTS
On April 16, 2017, Amanda Rodriguez was working as a greeter at a grocery store in Anaheim. Rodriguez saw a man, later identified as Mendoza, bypass the cash registers and exit the store holding a clear bag containing several food items. Rodriguez followed Mendoza to the parking lot and asked if he had a receipt. Rodriguez responded "No, bitch. I don't have a receipt. I'm hungry" in a loud tone.
At trial, the "I'm hungry" portion of Mendoza's response was omitted pursuant to the court's pretrial rulings.
Rodriguez reached to take the bag from Mendoza. In response, Mendoza "smacked" Rodriguez's hand. Rodriguez told Mendoza she was going to call the authorities, to which he replied, "I don't care" and left.
Rodriguez called the police from the parking lot. She told the dispatcher a man had tried to assault her after stealing food items. Rodriguez gave police the make, model, and license plate number of the man's vehicle. Anaheim police identified Mendoza using his license plate number. Rodriguez identified Mendoza out of a six-pack photographic line-up.
An amended information charged Mendoza with one count of second degree robbery (Pen. Code §§ 211, 212.5, subd. (c); count 1) and one count of misdemeanor petty theft (Pen. Code §§ 484, subd. (a), 488; count 2). It also alleged a bail enhancement under Penal Code section 12022.1, subdivision (b).
Because Mendoza only challenges his conviction on count 1, we omit the distinct facts underlying count 2.
Prior to trial, the People moved in limine to exclude the "I'm hungry" portion of Mendoza's statement to Rodriguez. Citing Evidence Code section 352, the People argued the statement was irrelevant, had no probative value, and would only serve to confuse and mislead the jury. Mendoza objected, citing section 356, and argued it was improper for the court to present only portions of his statement. After hearing argument from both sides on the issue, the court granted the motion in limine.
All further statutory references are to the Evidence Code, unless otherwise stated.
The trial court did not explicitly state the bases for its decision to exclude the "I'm hungry" statement. However, it considered the written motion in limine by the People and gave both parties the opportunity to present arguments regarding sections 352 and 356. So while the court did not expressly exclude the statement pursuant to section 356 or weigh prejudice against probative value under section 352, "the record demonstrate[s] the trial court understood and fulfilled its responsibilities . . . ." (People v. Williams (1997) 16 Cal.4th 153, 213.)
At trial, the court gave the jury three instructions pertinent to the force or fear element of Penal Code section 211. The first instruction used the general force or fear language from CALCRIM No. 1600: "The defendant used force or fear to take the property or to prevent the person from resisting." The court added a second instruction, without objection: "The application of force or fear may be used when taking the property or carrying it away." The third instruction was requested by the People and stated: "A robbery occurs when the defendant uses force or fear in resisting attempts by the owner to regain property that was improperly taken or in attempting to remove that property from the owner's immediate presence."
Mendoza objected to the third instruction, arguing it was redundant to the instruction that force or fear may be used when taking the property or when carrying it away. When asked by the court to explain how the instruction was confusing, counsel for Mendoza stated, "It would confuse the jury because—realistically, actually not even that it's confusing" and amended her objection to state the instruction bolstered the facts and theories of the People's position. The People contended the requested instruction was an accurate statement of law pulled from appellate case law. Ultimately, the trial court included the instruction.
A jury convicted Mendoza on both counts. Mendoza admitted the bail enhancement as to count 1. The court sentenced Mendoza to a total term of three years in state prison. The court struck the bail enhancement pursuant to its authority under Penal Code section 1385, subdivision (c).
DISCUSSION
The Trial Court Properly Excluded Mendoza's "I'm Hungry" Statement
Mendoza first contends the trial court abused its discretion by excluding the "I'm hungry" portion of his statement to Rodriguez. We review a trial court's exclusion of evidence under sections 356 and 352 for abuse of discretion. (People v. Parrish (2007) 152 Cal.App.4th 263, 274; People v. Moore (2016) 6 Cal.App.5th 73, 91.)
Section 356, "sometimes referred to as the statutory version of the common law rule of completeness" (People v. Parrish, supra, 152 Cal.App.4th at p. 269, fn. 3), provides as follows: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence" (§ 356.)
The purpose of section 356 "is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) "The rule stated in [s]ection 356," however, "only makes admissible such parts of an act, declaration, conversation, or writing as are relevant to the part thereof previously given in evidence." (Assem. Com. 29B pt. 1A West's Ann. Evid. Code (2011 ed.) foll. § 356, p. 650; see Witt v. Jackson (1961) 57 Cal.2d 57, 67 [the rule "'is necessarily subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced'"].)
"'"In applying . . . section 356 the courts do not draw narrow lines around the exact subject of inquiry. 'In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence . . . .' [Citation.]'"'" (People v. Harris (2005) 37 Cal.4th 310, 334-335.)
Mendoza contends the "I'm hungry" statement was admissible under section 356. The People argue the statement was irrelevant and not necessary to explain the admitted portion of Mendoza's statement. We conclude the People have the better of the argument and that the court did not err in ruling section 356 did not provide a basis for including the "I'm hungry" statement as evidence in this case.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) "A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence." (People v. McKinnon (2011) 52 Cal.4th 610, 686.)
Mendoza argues this case is analogous to Rosenberg v. Wittenborn (1960) 178 Cal.App.2d 846 (Rosenberg). Rosenberg is inapposite. In Rosenberg, the Court of Appeal reversed the trial court's grant of a new trial in a case involving a car accident. (Id. at p. 847.) Plaintiffs elicited testimony from the responding police officer stating defendant said he was going about 30 miles an hour before impact, that he stepped on his brakes when the signal turned yellow, that he entered the intersection against the red light, and that he said this and nothing else. (Id. at p. 851.) Under the precursor to section 356, the defense cross-examined the officer, revealing defendant also stated he experienced a brake failure. (Rosenberg, at pp. 851-852.) The trial court denied plaintiffs motion to strike the brake failure statement, but later granted plaintiff's motion for a new trial based on its admission. (Id. at p. 850.) The Rosenberg court determined the evidence was properly admitted: "Considerations of fair play demanded that the portion of the conversation placed in evidence by plaintiffs be supplemented by the qualifying and enlightening portions of the conversation which gave it a very different complexion than that which the plaintiffs' segregated passages bore." (Id. at p. 852.)
Here, by contrast, the omitted part of Mendoza's statement does nothing to qualify or enlighten the jury's understanding of Mendoza's previous statements. Each of Mendoza's statements, "No bitch. I don't have a receipt" and "I'm hungry," are easily understood without the other. Omitting "I'm hungry" does nothing to mislead the jury. Furthermore, the only disputed factual issue at trial was whether the force or fear element of Penal Code section 211 was satisfied. The excluded statement was not relevant to demonstrate whether Mendoza used force or fear. Mendoza fails to explain why a robber motivated by hunger would not use fear or force. And a contemporaneous assertion of hunger does not negate an otherwise menacing statement.
The omitted statement had no relevance to prove the charged crime. Admitting the statement was unnecessary to give the jury a fair picture of the interaction between Mendoza and Rodriguez and it would not have impacted the jury's deliberations on Mendoza's guilt. We cannot say the trial court abused its discretion by excluding the evidence as irrelevant.
Furthermore, even if we were to assume for purposes of argument that the "I'm hungry" statement should have been admitted pursuant to the rule of completeness, the trial court did not abuse its discretion by excluding it under section 352. Under that section, "the trial court is accorded considerable discretion to carefully balance the competing interests in admitting probative evidence and in excluding evidence that unfairly prejudices a defendant, and an appellate court will overturn the exercise of discretion only when the trial court's assessment appears to exceed the bounds of reason." (People v. Moore, supra, 6 Cal.App.5th at p. 91.)
Mendoza contends the statement should not have been excluded under section 352 because it had the dual purpose of showing (1) he did not use force or fear in taking stolen items from the grocery store and (2) impeaching Rodriguez's credibility as to the assertion that Mendoza hit her hand when she attempted to retrieve the stolen items. The People argue the statement was properly excluded under section 352 because it was irrelevant and prejudicial, lacked probative value, and would only confuse and mislead the jury.
As discussed above, the "I'm hungry" statement offered no particular insight as to whether force or fear was used in taking food items from the store. Indeed, we presume any person who robs another does so out of a desire to possess the stolen items. The omitted statement was not pertinent to any element or defense of the charged crime. It was not exculpatory, as hunger is not a legitimate necessity defense to the crimes of theft or robbery. (People v. Weber (1984) 162 Cal.App.3d Supp. 1, 5.) Furthermore, a comment tending to show Mendoza's crime was motivated by hunger does nothing to undercut the fear-inducing nature of a loud, angry, and profanity-laced response immediately preceding a smack to Rodriguez's hand. Indeed, Rodriguez testified as to her fear of being hurt in response to Mendoza's statements.
The statement also contained no value as to Rodriguez's credibility. Mendoza contends Rodriguez had a motive to lie about his acts in order to bolster her credibility because she breached store policy in following him out of the store. We note that we do not reweigh evidence or assess credibility on appeal. (People v. McKissack (1968) 259 Cal.App.2d 283, 287.) Our only inquiry is whether the omitted statement was probative of Rodriguez's credibility. We determine it was not. Rodriguez did not make an inconsistent statement regarding Mendoza's statement. She told officers at the scene Mendoza said, "No bitch. I don't have a receipt. I'm hungry." At trial, her testimony omitted the "I'm hungry" portion only after the trial court granted the People's motion in limine to exclude it. Including the full statement would not have impeached Rodriguez's testimony or altered the perception of her truthfulness. The excluded statement also failed to contradict Rodriguez's testimony that Mendoza smacked her hand or that she was frightened by Mendoza's actions. It lacked probative value as to Rodriguez's credibility.
In contrast to its lack of probative value, the excluded statement posed a substantial risk of prejudice to the People. The trial court has discretion to exclude evidence that evokes prejudice against either party, including the People. (People v. Wright (1985) 39 Cal.3d 576, 585.) The court looks to whether the proffered comment is the type of evidence "uniquely designed to evoke an emotional or irrational response from jurors" which is unrelated to a defendant's guilt or innocence. (People v. Jones (2012) 54 Cal.4th 1, 62.) Evidence is properly excluded where it tends to '"evoke an emotional bias . . . while having only slight probative value with regard to the issues.'" (People v. Robinson (2005) 37 Cal.4th 592, 632.)
The "I'm hungry" statement could have evoked an emotional response of sympathy toward Mendoza's situation that was not relevant to his guilt or innocence. Evoking such sympathy is not a legitimate purpose for introducing evidence because the jury is not permitted to use sympathy or emotional bias during the guilt phase of trial. (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1064 [defense photographs showing defendant with her child properly excluded "because they tended to arouse sympathy for her as a mother"].)
Because the excluded statement lacked probative value and was prejudicial, the court did not err. Since we determine the court did not err in excluding the "I'm hungry" statement, there was no due process violation.
The Trial Court Did Not Err by Instructing the Jury on the Force or Fear Element of an Estes Robbery
Mendoza argues the court committed reversible error by giving the People's requested pinpoint instruction based on People v. Estes (1983) 147 Cal.App.3d 23 (Estes), and its progeny. He concedes the instruction was a correct statement of law, but contends the instruction was "duplicative, confusing, and argumentative." We disagree.
We review a claim of instructional error de novo. (People v. Shaw (2002) 97 Cal.App.4th 833, 838.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756.) Where reasonably possible, we interpret the instructions to support the judgment rather than defeat it. (Ramos, at p. 1088.)
The trial court instructed the jury with CALCRIM No. 1600, which provides, in pertinent part: "The defendant used force or fear to take property or to prevent the person for resisting." The court added a second instruction, without objection: "The application of force or fear may be used when taking the property or when carrying it away." It also gave the following instruction, over Mendoza's objection: "A robbery occurs when the defendant uses force or fear in resisting attempts by the owner to regain property that was improperly taken or in attempting to remove that property from the owner's immediate presence."
The contested instruction is an accurate statement of the law regarding an Estes robbery. It was not confusing. It stated a legal principle as to an element of robbery in simple language. Even if the instruction was somewhat repetitive or duplicative, Mendoza fails to demonstrate a trial court commits reversible error simply by giving a redundant instruction which is otherwise clear, impartial, and accurate.
But even assuming arguendo that the duplicative instruction was given in error, we discern no prejudice. Where a trial court gives a legally correct, but extraneous, instruction, the error "'is usually harmless, having little or no effect "other than to add to the bulk of the charge."'" (People v. Lee (1990) 219 Cal.App.3d 829, 841; see People v. Henriquez (2017) 4 Cal.5th 1, 34.) We review such an error under the reasonable probability standard, that is, whether it is reasonably probable defendant would have achieved a more favorable result in the absence of the error. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) "We have made clear that a 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Guiton, at p. 1130.)
Mendoza contends the alleged instructional error was prejudicial and that but for the improper instruction it was reasonably probable he would have achieved a more favorable result. We disagree. It was undisputed Mendoza walked into a grocery store and stole several items, in the presence of store employees, with the intent to permanently deprive the owner of the property. As to the disputed force or fear element of Penal Code section 211, testimony from Rodriguez, corroborated by consistent statements to the 911 operator and the police who interviewed her, established Mendoza smacked her hand when she attempted to retake the stolen property. Rodriguez also testified as to Mendoza's angry tone and that she was fearful of him. Thus, even presuming the contested instruction was improper, there was no reasonable probability that its omission would have undermined the People's case against Mendoza as to count 1. In light of the parties' arguments, and the evidence produced at trial, the contested instruction was unlikely to have made a difference to the jury's analysis. We think it's clear under any standard that no better result for Mendoza would have resulted had the pinpoint instruction been omitted.
Because we determine the trial court did not err, we reject Mendoza's argument that cumulative error requires reversal. We similarly reject Mendoza's due process and constitutional claims stemming from the perceived instructional error. --------
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.