Opinion
B158578.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. ARACELI PENA, Defendant and Appellant.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Kenneth N. Sokoler, Deputy Attorney General, for Plaintiff and Respondent.
Araceli Pena appeals the judgment entered after conviction by jury of first degree special circumstance murder committed in the course of a robbery in which Pena personally discharged a firearm causing death. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 12022.53, subd. (d).) The jury also convicted Pena of two counts of robbery and two counts of attempted robbery with various firearm enhancements. (§§ 211, 664/211.) The trial court sentenced Pena to a prison term of life without the possibility of parole plus a substantial subordinate term. We modify the term imposed and, as so modified, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecutions evidence.
Pena and codefendant Demetrio Cabrera committed a series of armed robberies in relatively rapid succession on the morning of October 28, 2000.
a. Count 5.
At 2:55 a.m. an armed male robbed Gonzalo Valdez after Valdezs car was blocked by another car in an alley near Fountain Avenue in Los Angeles.
b. Counts 1 through 4.
At 3:00 a.m., Pena approached a car double parked on Tamarind Avenue driven by Wendy Soltero. Sezin Rajandran was in the front passenger seat and Abra Huff was in the rear. Pena pointed a small silver gun at Soltero, ordered Rajandran not to look at her and cursed the victims as she demanded their property. Pena shot Soltero in the head, then pointed the gun at Rajandran and demanded her wallet. Rajandran handed Pena her wallet over Solteros body. Rajandran did not see anyone else outside Solteros car. Huff also handed something to Pena. Soltero died at the scene of a single gunshot wound to the head.
c. Count 6.
At approximately 3:30 a.m., Pena robbed Glenn Deleon as Deleon sat in his car in front of his apartment complex on South Lafayette Park Place. Deleon gave Pena money and his wallet. Pena took Deleons car keys. Penas breath smelled of alcohol.
d. Counts 7 and 8.
Sometime between 3:00 and 4:00 a.m., Jimin Kim and Monica Chang were looking for a Laundromat on Lafayette Park Place. Kim entered a strip mall at Beverly Boulevard. A Cadillac driven by a male entered the other end of the strip mall and drove face to face with Kims car. When Kim backed up, the Cadillac moved forward. Pena got out of the Cadillac and approached Kim with her hand behind her back. Kim sensed danger and backed out of the strip mall. The left side of Kims car made contact with Pena and it sounded like Pena hit or kicked Kims car. Pena appeared to trip.
Los Angeles Police Officers Erin Hibbard and George Juarez observed the incident in the strip mall parking lot. Kim saw the officers and drove toward them. Pena pointed a handgun at Kim and ran after Kims car. Cabrera also ran toward Kims car with a handgun. When Hibbard pointed her gun at Pena, Cabrera and Pena ran back to the Cadillac and drove onto Beverly Boulevard. Hibbard stopped the Cadillac and Cabrera got out of the drivers seat. Neither Pena nor Cabrera exhibited signs of severe intoxication.
In the Cadillac, officers found the wallets taken from Deleon and Valdez and receipts issued to Rajandran. Rajandrans Visa card was on the ground where Pena first got out of the Cadillac and officers found a gun on a patch of grass in the strip mall near where Pena had been standing when she returned to the Cadillac. Testing revealed the gun found at the strip mall had not fired the spent projectile recovered from the floor of Solteros car. Deleon identified Pena in a field show up.
On October 29, 2000, while Detective Pelletier attempted to obtain routine booking information, Pena began to cry and said she wanted to talk about the case. Pelletier gave Pena a pen and told her to write a statement. Pena wrote she robbed one individual in a car and committed a second robbery minutes later because the first had not produced any money. Both she and Cabrera were high and Pena was afraid. In the second robbery, Pena approached a male and two females in a car, demanded money and told the females not to look at her. During the robbery, Cabrera got out of the Cadillac and grabbed Penas hand causing the gun accidentally to fire. Pena took the males wallet but it was empty. Pena and Cabrera robbed a third individual and were captured attempting to rob two people in a car.
On November 1, 2000, Pelletier went to the jail in response to Penas request to speak to him. Pelletier tape-recorded an interview with Pena, which was played for the jury at trial. Pena claimed she and Cabrera had smoked crack cocaine and Pena drank a six-pack of beer. Pena admitted taking a wallet in the first robbery, which she committed with a .32 caliber handgun. Pena claimed Cabrera threatened to kill her if she did not commit the second robbery. Pena repeated her claim the gun fired accidentally in the second robbery when Cabrera grabbed her and her belief the passengers were female but the driver was a male. Pena denied she had a handgun during the strip mall robbery.
2. Defense evidence.
Psychologist Nancy Kaser-Boyd testified Pena had been "fixated" between the ages of nine and eleven years due to the death of her mother and molestation by her father. Penas levels of paranoia, fear and anxiety were significant enough to warrant psychiatric treatment. Because of her background, Pena easily could be controlled by a dominating male and would be compliant if ordered at gunpoint to commit a robbery. Pena told Kaser-Boyd she had been smoking rock cocaine for three days before her arrest. A drug expert testified such an individual would be sleep deprived and subject to intense emotions if threatened.
A cocked single action gun fires with very little movement of the trigger. Curtis Cope testified the gun probably discharged unintentionally if Pena had not seen Cabrera approach her during the robbery.
3. The jurys verdicts.
The jury acquitted Pena of the robbery of Valdez in count 5 and the robbery of Chang in count 8. The jury also found not true a firearm use enhancement alleged as to count 7, the robbery of Kim. The jury convicted Pena of the remaining counts and firearm use allegations.
CONTENTIONS
Pena contends the trial court improperly admitted into evidence a photograph of Soltero while alive, the term imposed violates section 654 and the trial court miscomputed Penas sentence. Pena also asserts a $200 parole revocation fine must be stricken because she is not eligible for parole.
DISCUSSION
1. No reversible error appears in the admission of the photograph of Wendy Soltero while alive.
The prosecutor offered a photograph of Soltero taken shortly before her death "to show what the defendant would have seen during the incident." After argument, the trial court permitted the photograph into evidence without publication to the jury pending resolution of Penas objection under Evidence Code section 352. Defense counsel offered to stipulate Soltero was the murder victim.
During questioning of Detective Pelletier related to Solteros autopsy, the trial court permitted the prosecutor to refer to the photograph of Soltero, over defense counsels objection, because the photograph would not be shown to the jury.
At the close of the Peoples evidence, the trial court found the photograph admissible in that it had been difficult to locate the entrance and exit wounds of the bullet that killed Soltero and because Pena referred to the victim as a male in her statements to the police. The trial court further found the photograph had little prejudicial effect and overruled Penas objections to the exhibit.
After the jury retired, defense counsel complained the prosecutor used the photograph to evoke sympathy but had not used it to discuss the gunshot wound or Penas misidentification of the driver as a male. The trial court overruled the objection.
On appeal, Pena asserts identification of Soltero was not in issue and the prosecutor did not use the photograph to discuss the entry and exit wounds. In fact, the prosecutor argued the case on a felony murder theory. Thus, the only relevant issue was whether Pena inflicted the fatal injury to Soltero during the commission of an armed robbery. Pena claims reversal is required because the case was close as evidenced by the jurys deliberations for more than two full days and the fact the jury acquitted Pena of two counts of robbery and found not true a firearm allegation with respect to the count of attempted robbery of Kim. Pena claims admission of the photograph, which showed Soltero to be an attractive college student, must have engendered sympathy for the victim which carried over to the other counts of the case.
The Supreme Court has "repeatedly cautioned against the admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items. [Citations.]" (People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) However, the trial court has broad discretion to admit such photographs if relevant. (People v. Zapien (1993) 4 Cal.4th 929, 983.)
Here, the photograph was relevant to explain the entrance and exit wounds of the gunshot that killed Soltero and it was relevant with respect to Penas identification of the driver as a male. The fact the prosecutor did not address these points in argument does not mean the jury was not assisted by the photograph.
Penas offer to stipulate to the identity of the murder victim does not alter this result. "The state is not required to prove its case shorn of photographic evidence merely because the defendant agrees with a witness or stipulates to a fact." (People v. Weaver (2001) 26 Cal.4th 876, 933.)
Moreover, even assuming error, reversal is not required. The photograph "was not `particularly calculated to elicit sympathy. . . . [It] was . . . simply a picture of the victim alive. [Citations.]" (People v. Smithey (1999) 20 Cal.4th 936, 975; People v. Thomas (1992) 2 Cal.4th 489, 523.) The fact the jury acquitted Pena of the robbery of Valdez and the attempted robbery of Chang suggests the jury was able to put aside any sympathy the photograph of Soltero may have engendered. Thus, any error must be seen as harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. The term imposed on count 2 violates section 654.
For the special circumstance murder of Soltero in count 1, the trial court sentenced Pena to a term of life without the possibility of parole. For the attempted robbery of Soltero in count 2, the trial court imposed a term of two years plus 25 years to life for the personal use of a firearm under section 12022.53, subdivision (d). The trial court selected the robbery of Rajandran in count 3 as the principle term and sentenced Pena to the middle term of three years plus 20 years for the personal use of a firearm under section 12022.53, subdivision (c). With respect to the attempted robbery of Huff in count 4, the trial court imposed a consecutive term of eight months plus six years and eight months for the personal use of a firearm enhancement under section 12022.53, subdivision (c).
Pena contends the convictions of attempted robbery of Soltero in count 2, as well as the convictions of robbery of Rajandran and Huff in counts 3 and 4, must be stayed pursuant to section 654 because these counts formed the predicate for the felony-murder conviction in count 1. (People v. Martinez (1985) 171 Cal.App.3d 727, 736.)
Pena is correct but only with respect to count 2, the attempted robbery of Soltero. Pena cannot be punished for that attempted robbery because it formed the basis of the conviction of the murder of Soltero in count 1. Thus, the term imposed on count 2 must be stayed. However, the trial court should have imposed the personal use of a firearm enhancement on count 1, not count 2. Thus, the correct term on count 1 should be life without the possibility of parole for murder, plus 25 years to life for the personal discharge of a firearm causing death. We shall order the judgment corrected to reflect this term.
As to counts 3 and 4, section 654 does not apply because these counts had separate victims. (People v. Champion (1995) 9 Cal.4th 879, 934-935; Neal v. State of California (1960) 55 Cal.2d 11, 20-21.)
3. The stayed term on count 2 need not be computed.
Pena contends the trial court erroneously imposed a full two-year term for attempted robbery in count 2, plus an enhancement of 25 years to life in state prison. As indicated in Discussion Section 2, we agree the term imposed with respect to count 2 must be stayed and thus cannot be imposed, even concurrently. Accordingly, there is no need to determine with precision what an appropriate term might have been.
4. The parole revocation fine must be stricken.
Pena contends a $200 parole revocation fine imposed pursuant to section 1202.45 must be stricken because she is not eligible for parole.
Section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked."
People v. Oganesyan (1999) 70 Cal.App.4th 1178, held that where one of the terms imposed on a defendant was for life without possibility of parole, the trial court did not err by declining to impose a parole revocation fine "because the sentence does not presently allow for parole and there is no evidence it ever will . . . ." (Id. at p. 1185.) Here, Penas sentence includes a term of life without possibility of parole. Because this term does not include a possible period of parole, the parole revocation fine was improper and must be stricken.
DISPOSITION
The judgment is ordered modified to reflect a term of life without the possibility of parole plus 25 years to life in state prison for count 1 and to strike the $200 parole revocation fine imposed under section 1202.45. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting these modifications.
We concur, CROSKEY, J. and KITCHING, J. --------------- Notes: Subsequent unspecified statutory references are to the Penal Code.