Opinion
D074552
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN E. BRAUN ORTIZ, Defendant and Appellant.
Neil F. Auwarter, by appointment of 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, Michael P. Pulos and Joseph C. Anagnos, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD268290) APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Neil F. Auwarter, by appointment of 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, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jonathan E. Braun Ortiz was convicted of robbing and assaulting a travelling jewelry salesman and sentenced to 15 years in prison. On appeal, he argues that the trial court abused its discretion in admitting evidence relating to a prior jewelry robbery under the identity and/or plan exceptions to Evidence Code section 1101's general bar against character evidence.
All statutory references are to the Evidence Code unless otherwise indicated.
As we explain below, this evidence probably fails to meet the requisite standard for admission under the identity exception. To be admissible under the identity exception, the evidence of a highly similar crime must share distinguishing marks with the charged offense that are so unusual and distinctive as to be like a signature. (See People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) While several features common to both robberies present some level of distinctiveness, even when considered altogether they likely do not clear the high bar for identity evidence, which requires the greatest showing of distinctiveness among the exceptions in section 1101, subdivision (b). (See People v. Roldan (2005) 35 Cal.4th 646, 705-708 (Roldan).) Although evidence admitted under the plan exception requires a lesser degree of distinctiveness, it may not be "used to prove the defendant's intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense." (Ewoldt, at p. 394.) Here, the identity of the criminal actor was the critical question at trial, there was little or no dispute as to whether or how the assailant committed the charged offenses, and the jury was specifically told it could consider the "prior crime" evidence for the purpose of deciding the identity of the perpetrator.
Regardless, Ortiz has failed to show that any error caused prejudice. As noted, the identity of the alleged assailant was the key issue for the jury. One victim (on the two counts on which the jury convicted) provided an account of the robbery and assault, consistent with the surveillance footage evidence, in which the circumstances allowed for him to get a good look at the assailant. This victim identified Ortiz in a photo lineup, at the preliminary hearing, and at trial. In contrast, the victims of the second robbery (one count on which the jury acquitted Ortiz)—a jewelry salesman and his assistant—provided accounts of circumstances that would have made it much more difficult for either of them to identify the assailant. On these facts—including the nature of the victims' testimony, the surveillance video, and the balance of the evidence—even if the court erred in admitting evidence of the prior jewelry robbery it is not reasonably probable the outcome would have been favorable to Ortiz had the evidence been excluded. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Charged Robberies
Ortiz was charged with crimes arising out of two separate incidents.
1. The La Jolla Supermarket Robbery
In March 2016, a jewelry salesman flew from New York to California to meet with jewelry retailers. He carried jewelry valued at about $500,000 in his backpack. The jewelry salesman had made trips like this several times before, including to Los Angeles and San Diego, and was accustomed to taking security precautions such as keeping the backpack containing the jewelry on his person at nearly all times.
After selling jewelry to businesses in the Los Angeles area, the salesman drove to San Diego to see prior clients. He visited a few jewelers, then stopped at a supermarket in La Jolla to buy dinner. When he went inside the supermarket, he took his backpack with him, which still contained nearly $500,000 worth of jewelry. At about 8:45 p.m., the salesman left the store and walked to his car. Although he typically carried his backpack in the passenger seat, he set it in the trunk so that he could unload the groceries. At this point, the sky was "pitch black," but lampposts "illuminated the parking lot."
While he was unloading his groceries, the salesman was approached from behind by an individual who said "[d]on't move" in English with a "Spanish" accent. The salesman reached for the backpack, and the assailant and he both grabbed it. The two struggled over the backpack while the salesman kept a tight grip on its straps. The assailant was wearing a hoodie, but with the hood down the salesman "got a very good look" at the assailant's face.
At about the same time, a second assailant (also wearing a hoodie but with the hood up) used a knife to slash one of the tires. The salesman could hear the hissing of the air escaping from the tire. While he was still holding onto the straps of the backpack, one assailant shoved him to the ground or punched him, and the salesman started screaming for help. The saleman's contact lens "popped out," and while still clutching onto the backpack he was dragged across the pavement on his stomach as the assailants tried to wrestle it free. Finally, the salesman was kicked in the face twice; the backpack straps were cut off with a knife (which was dropped at the scene); and the two assailants fled quickly, jumping into a moving black SUV with tinted windows.
The salesman suffered a serious eye injury, including a condition that affects one of the key muscles controlling the eye. As a result, he has "constant double vision," meaning that his vision is not distorted "[b]ut [his eyes] see at different angles, so [he sees] two of everything . . . ."
2. The Robbery After the Swap Meet
Another jewelry salesman and his assistant testified that in December 2014, they attended a swap meet in San Diego to sell jewelry. They had worked together for more than 10 years at various fairs and had visited the specific swap meet a handful of times. After the day ended, they drove from the swap meet to one store and then to the salesman's home, entering through a gated entry.
According to the salesman, while the assistant was still in the passenger seat, he walked from the driveway through the garage and into his house (about 10 feet) with his briefcase. After putting the briefcase down, he went back to the door to see two individuals walk quickly up the side of the van and pull out guns, one from his jacket and the other from his pants. The salesman cried out "No, no, no, no," as one assailant said to him, "I'll kill you." Thinking he was going to be shot, the salesman slammed the door to the house and locked it. He left his assistant outside, because he felt he had no choice, thinking the assailants were going to kill him. After he believed they had fled, the salesman went back to the van. In separate vehicles, he and a neighbor searched unsuccessfully for the assailants.
The assistant's account was different in a few respects, including that she never saw a gun at any point. She testified that she saw the two individuals as they were walking from the street towards the home. After the salesman left the car, she got out of the car, saw them, and said "hi." Thinking they were customers, she asked whether they were there to pick something up. Neither of the two responded and instead walked around toward the driver's side of the van, where each grabbed a bag of jewelry and quickly took off running. As one of them (wearing a dark blue cap with an "average guy" build) was grabbing a bag, the assistant also reached for it and the two tussled over it briefly before it was taken. The assistant noticed that the salesman "wasn't around" during this period.
The salesman called 911 immediately after the incident and then, after the connection went out, called a second time shortly thereafter. The calls were played for the jury. He reported that two Hispanic males "held [them] up with a gun." They "had no masks, but [he] didn't get a good look at their face[s]." He could not recall what they were wearing except that the clothes were dark. The salesman, who was also talking to his assistant while on the phone, described one as in his thirties with a medium build and no facial hair, and the other as in his twenties with a medium build and no facial hair. Neither victim observed any getaway car. Describing the moments when he saw the assailants and their guns, the salesman offered that "it happened so quick." He did not see them go into a vehicle or take any of the jewelry.
A couple days later during a police interview, the salesman's assistant confirmed that two people visible in a low-resolution surveillance video were the individuals she saw. In August 2016, she was shown a photographic line-up and stated that "in case it wasn't one or three, I'm choosing perhaps number six." At trial, she identified Ortiz as the assailant in the dark cap. While attempting to identify Ortiz in a still photograph taken from surveillance video showing both assailants (exhibit No. 20, marked as S-1 and S-2), the assistant commented that she "had thought he perhaps could have been S-2, but S-1 is taller. His face looks a little slimmer than the other fellow, and I'm thinking maybe S-1 is [Ortiz]." During the investigation, however, she had told a detective that the assailant was "a smaller version of" the individual marked as S-2.
At the preliminary hearing in March 2017, the salesman identified Ortiz. At trial, the salesman again identified Ortiz and indicated that he was the older of the two assailants. He added that during the incident Ortiz was wearing a dark hat (consistent with the surveillance video) and jeans. B. Trial
1. Charges
The San Diego County District Attorney charged Ortiz with two counts of robbery (counts 1 and 2; Pen. Code § 211) and one count of assault by means of force likely to produce great bodily injury (count 3; Pen. Code §§ 245, subd. (a)(4), 12022.7, subd. (a)) arising out of the two incidents. The information further alleged that defendant had a 2015 robbery conviction, a serious felony prior (Pen. Code §§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a strike prior (Pen. Code §§ 667, subds. (b)-(i), 668, 1170.12). The charges included a codefendant, Diego Rojas, whose DNA was matched to material found on the knife used in the La Jolla robbery, but he pled guilty prior to trial.
2. Evidence of the Prior Selma Robbery
The prosecutor moved in limine to admit evidence of a prior 2015 Selma, California robbery that Ortiz, Rojas, and several others had participated in. She contended it was relevant to prove intent, motive, plan, modus operandi, and the identity of defendant. Ortiz objected, arguing it was inadmissible propensity evidence not subject to any of the exceptions in section 1101, subdivision (b), and that it should be excluded under section 352.
The trial court ruled that Ortiz's conviction for the Selma robbery was inadmissible, but it agreed with the prosecution that the facts underlying the robbery were admissible under section 1101, subdivision (b)'s exception to show identity. In considering the issue, the court noted that "identity is a crucial issue in this case."
At trial, the prosecutor presented evidence of the facts underlying the Selma robbery. The jury heard extensive testimony from a police officer in the commercial crimes division of the Los Angeles Police Department, first regarding the common methods used by criminals involved in targeting jewelry salesmen and then about the specific details of the Selma robbery. As to jewelry robbery crews generally, the officer explained that groups of individuals, typically of about four to eight, pick out victims in a jewelry district or jewelry show. They often wear earpieces for cell phones to communicate with cohorts stationed in vehicles around the location, in order to follow the victims and ascertain the most effective location to rob them. He also noted that when targeting a vehicle, the crew might box the vehicle in, one car from the front and a second from behind, and then flatten the tires to prevent pursuit.
In 2015 the officer was working with an FBI and Los Angeles Police Department task force directed at criminals targeting jewelry salesmen when he was advised that a jewelry salesman had been robbed in Selma, California, south of Fresno. The salesman had been followed from a jewelry show in Marin County to his hotel in Selma (about 200 miles away). After walking into the hotel lobby, he was confronted by two men who violently pushed him down, threatened him, and told him to stay down as they took his property. The same day the officer heard about the robbery, the task force was made aware that a specific individual from Los Angeles was trying to quickly sell a large amount of jewelry. Using that information, the task force set up a sting operation, and caught Rojas and others as they entered a hotel and attempted to sell jewelry that been stolen in Selma. Ortiz, a passenger in one of the vehicles that dropped off the participants in the exchange, was also arrested.
The jury also heard testimony from N.H., the victim of the Selma robbery. He described his trip from a jewelry fair in San Rafael, which he had visited multiple times before, to a fast food restaurant and then to his hotel. He was carrying jewelry valued at about $300,000 in a hand-carry two-wheeler clothing luggage bag. While N.H. was in the hotel lobby, he saw a black SUV enter the parking lot and "four guys come out of it, and busted through the door while [he] was at the counter talking to the hotel owner." His bag containing the jewelry was with him at the time. One of the assailants "kept screaming, 'Don't move, don't move,' " (in English but with a "South American" accent) as another took his bags, including the bag with the jewelry. According to N.H., three of the four assailants were slender, fast, and younger; their faces were obscured with hoodies and bandanas. He could not see their faces. One assailant was in his forties with his face uncovered, but N.H. "didn't get a good look at his face" because "it happened so fast." Within seconds, the assailants entered a black SUV that appeared to have a driver because it "moved[] when they loaded in." N.H. later found that his car's rear-driver-side tire had been flattened.
3. Ortiz's Defense
In addition to contesting the sufficiency of the prosecution's evidence, Ortiz presented an alibi defense, claiming he was in Northern California on the day of the La Jolla robbery. His ex-girlfriend testified that during the relevant period she received a video message from him while he was at a hotel and that she sent money to him in San Francisco through MoneyGram. She provided the MoneyGram receipt, which only specified the United States, not San Francisco, as the destination for the funds. Ortiz also presented cell phone tower data showing that one of the five cell phones associated with him was in Stockton, California (about 90 miles from San Francisco) the day after the robbery. The evidence also showed that another of these phones was en route to Stockton on the day of the robbery. The cell phones were prepaid, registered to separate individuals—not to Ortiz or his ex-girlfriend—and the service provider had no address or billing information for the registrants.
4. Verdict and Sentencing
The jury found Ortiz guilty on counts 2 and 3, both relating to the 2016 La Jolla supermarket robbery; it found him not guilty on count 1 with respect to the 2014 robbery after the swap meet. He admitted the prior conviction allegations.
The following month, the trial court sentenced Ortiz to the upper term of five years on count 2, doubled due to his strike prior, and five years for the serious felony prior enhancement—a total prison term of 15 years. The court also imposed a two-year term (one-third the middle term of three years doubled for the strike prior) on count 3, but stayed it pursuant to Penal Code section 654.
DISCUSSION
A. Ortiz May Challenge the Admission of the Selma Robbery Evidence.
The People contend that Ortiz abandoned his objection to admission of the Selma robbery evidence and therefore may not pursue this claim. They acknowledge that Ortiz initially moved to exclude the evidence. But they claim the trial court deferred ruling on the objection until the evidence was offered at trial, at which point Ortiz did not object and thus failed to make any effort to obtain a ruling on the objection. (See People v. Braxton (2004) 34 Cal.4th 798, 813.)
As Ortiz points out, however, this argument is based on a misreading of the record. The court in fact deferred ruling on a separate issue (whether the prosecution could introduce a different category of evidence), and on that point the trial judge indicated he could not rule in "advance . . . because it depends on who you call to prove things up." The court also deferred until the following day the admissibility of Ortiz's conviction of the prior robbery. But as to the evidence of Ortiz's involvement in the Selma robbery, the trial court ruled it was admissible under the identity exception in section 1101, subdivision (b), over Ortiz's objection. He therefore did not abandon his objection to the admission of the Selma robbery evidence and may properly challenge it on appeal. B. The Identity and Plan Exceptions Under Section 1101
The Evidence Code provides several exceptions to the rule prohibiting admission of evidence of an individual's character to prove their conduct on a specified occasion. (§§ 1101, 1102, 1103, 1108, 1109.) One of these allows for the admission of evidence to show identity, i.e., that it was the defendant who committed the alleged criminal act. (§ 1101, subd. (b).) To be admissible under this exception, the evidence of a highly similar crime must share distinguishing marks with the charged offense that are so unusual and distinctive as to be like a signature. (See Ewoldt, supra, 7 Cal.4th at p. 403.) The distinctiveness inquiry focuses on the individual behind the signature. Like a signature, the distinctive marks associated with the defendant's means or method must be "sufficient to support an inference that the same person was involved in both instances." (People v. Prince (2007) 40 Cal.4th 1179, 1271.) The evidence must " 'virtually eliminate[] the possibility that anyone other than defendant committed the charged offense.' " (Roldan, supra, 35 Cal.4th at p. 706.) This is a high bar, and among the exceptions found in section 1101, subdivision (b), it requires the greatest degree of similarity. (Id. at pp. 705-706.)
Evidence offered to show a plan or common design requires the next greatest degree of distinctiveness among these exceptions. (Roldan, supra, 35 Cal.4th at p. 706.) The purpose of evidence under this exception is not to prove identity, but instead to show that an individual's acts relate to a common plan, design, or scheme. (Ewoldt, supra, 7 Cal.4th at p. 403.) Whereas "evidence of a common design or plan is admissible to establish that the defendant committed the act alleged, . . . [¶] [e]vidence of identity is admissible when it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator." (Id. at pp. 393-395, fn. 2.)
We note that the trial court referred to "modus operandi" evidence in ruling, and Ortiz refers to "modus operandi" evidence in his briefing. Although a "modus operandi" exception does not expressly appear in section 1101, subdivision (b), courts understand the phrase to mean that the evidence is being introduced under that provision's intent, identity, and/or plan exceptions and analyze the evidence under the three standards respectively. (See People v. Jones (2013) 57 Cal.4th 899, 925-926.) On appeal, the People limit their argument to the identity and plan exceptions, so we do not address the exception for evidence offered to show intent.
The Ewoldt court's hypotheticals are instructive and demonstrate that the identity and plan exceptions typically apply under different circumstances and are intended for different purposes. "[I]n a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft," for example, "evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution." (Ewoldt, supra, 7 Cal.4th at pp. 393-395, fn. 2, italics added.) Under entirely different circumstances, where it was "conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense." (Id. at p. 394, fn. 2, italics added.) B. The Admissibility of the Selma Robbery Evidence
Ortiz argues that the Selma robbery evidence was inadmissible under any of section 1101, subdivision (b)'s exceptions to the prohibition against character evidence. The People contend that the facts of the Selma robbery were sufficiently similar to those of the La Jolla robbery and are of such distinctiveness that the evidence would be admissible under either the identity and/or plan exceptions. Specifically, they point to several common features, including: (1) the robbers targeted a travelling jewelry salesman, initially selecting him at a jewelry convention or district where he showcased his merchandise; (2) they surveilled him before the robbery and followed him for at least a short distance; (3) one robber told the victim "Don't move!" in a Spanish accent (this case) or a "South American" accent (Selma robbery); (4) some of the robbers wore hoodies or masks; (5) the victim's car's tires were flattened; and (6) the robbers fled in a black SUV with tinted windows, which was already moving when they entered it.
Under the circumstances of this case, there was good reason for the trial court to consider the admission of evidence of a prior robbery under the identity exception. Identity was plainly the critical issue; the prosecution expressly focused its case on the eyewitness identifications; and there was no significant dispute as to the manner in which the charged act was alleged to have been committed. For these same reasons, there was little support for admitting the evidence under the plan exception, which is instead designed for situations where it "it is conceded or assumed that the defendant was present at the scene." (Ewoldt, supra, 7 Cal.4th at pp. 393-395, fn. 2.)
Nevertheless, because evidence of a prior crime may he highly inflammatory, its admissibility should be scrutinized with great care. (Roldan, supra, 35 Cal.4th at p. 705.) If offered under the identity exception, such evidence must "virtually eliminate[] the possibility that anyone other than defendant committed the charged offense," but it is hard, if not impossible, to tie Ortiz specifically to any of the People's proposed features or distinctive marks. (Id. at p. 706.) The evidence might have outlined a common scheme for jewelry robbery crews, but it did little to tie any of the features to any particular individual behind the features' distinctive "signature." (See Ewoldt, supra, 7 Cal.4th at p. 394.) And while each of the proposed features presents some level of distinctiveness, the People have not pointed to any prior ruling in which a court admitted evidence under the identity exception with as little distinctiveness as the Selma robbery evidence here. Roldan is probably their strongest support and appears to represent the limit for evidence admitted under the identity exception. (Id. at pp. 394-395; see also People v. Hovarter (2008) 44 Cal.4th 983, 1003-1004.) But several features in that case appear to be significantly more distinctive than those here, including that the robberies in Roldan involved assailants using an Uzi machine gun obscured by coats. (Roldan, at pp. 703-705.) C. Any Error Was Harmless.
Similarities included: (1) the perpetrators robbed a swap meet; (2) there were three participants, one who grabbed the money, one who stood behind him with a gun, and one in the getaway car; (3) the robbers stole " 'readily available cash,' " not merchandise; (4) the robbers used an Uzi-like weapon or machine gun; (5) the weapon was obscured by clothing (in the Sun Valley crime, a coat was draped over the gun; in the San Fernando crime, the shooter wore a long coat to hide the weapon); and (6) the getaway car was owned by either a participant or a friend. (Roldan, supra, 35 Cal.4th at p. 704.)
An error in failing to exclude evidence of uncharged misconduct does not require reversal unless it is reasonably probable the outcome would have been more favorable to defendant had such evidence been excluded. (People v. Stamps (2016) 3 Cal.App.5th 988, 997, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Ortiz argues that any error in the admission of the Selma robbery evidence was prejudicial under this standard due to the limited amount of evidence otherwise presented. He also emphasizes that the 2016 La Jolla robbery victim, who consistently identified Ortiz, had trouble with his vision, raising questions about his identification.
The La Jolla victim's account described circumstances that would have allowed him to get a good look at one of the two assailants but not the other. He and the primary assailant struggled over the backpack containing the jewelry while the other slashed the tire. His account was consistent with surveillance video taken in the area of the supermarket. The victim consistently identified Ortiz in a photo line-up, at the preliminary hearing (where he did not identify Rojas, who had not yet pled guilty), and at trial. The victim admitted that his contact lens popped out of his eye during the altercation and that his eye was injured. But the contact lens came out towards the end of the altercation after he had been able to get a good look at the assailant, and his specific eye condition causes double vision, which is not "distorted." Not surprisingly, the jury found Ortiz guilty on the counts 2 and 3 related to this robbery.
This evidence can be contrasted with the testimony of the two victims of the 2014 robbery after the swap meet, who did not provide a consistent account of circumstances that would have made it likely they could identify their assailants. Instead, their versions of the incident differed in critical ways, first and foremost as to the possession and brandishing of firearms. More importantly, they were not situated in locations where they could clearly see their assailants. The salesman was inside the house for most of the time, and his assistant was on the other side of the vehicle as the assailants approached. Furthermore, during the 911 call the salesman admitted he did not get a good look at the assailants and that the incident happened very quickly. On count 1 based on this robbery, the jury acquitted Ortiz.
Given the strong eyewitness testimony in the La Jolla robbery, and particularly the way in which the jury's divergent verdicts appear to have tracked the relative strength of the identification testimony by the victims of the two robberies, we find it is not reasonably probable the outcome would have been more favorable to defendant had the Selma robbery evidence been excluded.
Ortiz initially also requested remand for the trial court to exercise its recently-provided discretion to strike the serious felony enhancement under Penal Code sections 667, subdivision (a), and 1385, but he later withdrew this request, noting that the sentencing court expressly stated it would not strike the enhancement even if it had understood it had the discretion to do so. --------
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.