Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge, Los Angeles County Super. Ct. No. KA073034
Tara K. Allen, 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, Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Raul Ramos (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of two counts of second degree robbery (Pen. Code, § 211), with court findings of two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12), and of three prior felony convictions for which he had served a separate prison term within the meaning of section 667.5, subdivision (b). He requested that the trial court strike one of his prior convictions so that he would be sentenced as a second-strike offender. The trial court denied the motion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) It sentenced defendant to an aggregate term in state prison of 35 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) the trial court abused its discretion and denied him due process by denying his motion for an Evans lineup before the preliminary hearing (Evans v. Superior Court (1974) 11 Cal.3d 617, 626 (Evans)), and (2) the evidence is insufficient to support the finding of a prior serious felony conviction.
We affirm the judgment.
THE FACTS
The trial evidence established that after work, at 5:45 p.m. on November 8, 2005, Sarena Reyes (Reyes) left the Washington Mutual Building, which is located in the Eastland Shopping Mall in West Covina. With coworkers, Erica Estepa (Estepa) and Julie Mayorga (Mayorga), Reyes approached her Acura RSX, which was parked near the TGIF Friday’s restaurant. It was dusk.
When the women arrived at the Acura, a man ran up to Estepa and Mayorga and demanded their purses. He had an object mostly covered by his hand that appeared to be a gun, and he pointed it at the women. Believing the robber was holding a gun, Estepa and Mayorga froze. The robber grabbed Estepa’s and Mayorga’s purses and ran to a later model four-door bluish Honda Accord. The robber jumped into the Accord, and the Accord’s driver sped off toward the 10 Freeway. Mayorga wrote down the first three digits of the Accord’s California license plate, “3V0.”
The police responded. The women gave the police officers a description of the robber and the Accord. At trial, they all recalled that the robber had a tattoo on his neck that was a name or some writing. Estepa told the police that the robber had the tattoo of a teardrop on his cheek.
The following day, Detective Love showed the women six-pack photographic displays. Reyes identified defendant in the second display, and at trial, identified defendant as the robber. Mayorga identified defendant in court at the preliminary hearing and at trial and said that the robber had a tattoo on his neck that appeared to be some writing. Estepa identified the men depicted in the No. 5 and No. 6 positions in the display as having an appearance similar to the robber’s. At the preliminary hearing and at trial, she identified defendant as the robber. A bystander, Daniel Lee, could not identify defendant. However, at the trial, he testified that defendant looked like the robber.
During cross-examination, Mayorga explained that she saw defendant’s picture in the photographic display and believed that he was probably the robber. But she was not sure. She pointed out defendant’s photograph to the detective and told the detective that she was not certain. The detective told her to identify defendant only if she was 100 percent certain that he was the robber. She said that during the out-of-court identification procedure, she was not absolutely certain that defendant was the robber, and thus, did not make an out-of-court identification.
Defendant had two teardrop tattoos on his face.
City of West Covina Detective Steve Wheeless ran the partial California license plate, “3VO.” He discovered a vehicle matching the witness’s description of the Honda. It was a gray four-door 1997 Honda Accord with the California license plate, No. 3VOB283. The Accord was registered and driven by defendant, and the registration listed a Fontana address.
In defense, defendant’s fiance and her daughter testified to an alibi for defendant. They also said that defendant lived with them in West Covina. Detective Dario Aldecoa testified that some of the items stolen in Estepa’s purse were recovered from a garbage bin in Anaheim.
In rebuttal, Detective Wheeless testified that shortly after the robbery, the fiance and the daughter told the police that defendant was not at home when the robbery occurred. The detective said that the apartment where defendant was living was near Workman and Sunset Avenues, just north of the Sunset Avenue onramp for the 10 Freeway. Sunset Avenue is about five to 10 minutes from the mall.
DISCUSSION
I. The Evans Lineup
Defendant contends that he made a timely request for an Evans lineup (Evans, supra, 11 Cal.3d at p. 626) supported by good cause, and the trial court abused its discretion and denied him due process by denying his motion. We disagree.
A. Background
At the commencement of the preliminary hearing, trial counsel asked the magistrate to clear the courtroom before defendant entered. Trial counsel then asked for a continuance so that the authorities could conduct an Evans lineup for defendant.
The prosecutor objected that the request was untimely and said the prosecution was ready to start the preliminary hearing. The prosecutor commented that it was now well into the afternoon, and the three prosecution witnesses had been waiting all day to testify.
Trial counsel argued that he had just received the case file early that afternoon from his supervisor. When he interviewed defendant, defendant asked for an Evans lineup. The office of the public defender had been appointed to represent defendant at the arraignment on the felony complaint. However, no one had interviewed defendant to ascertain that the Evans lineup was necessary.
The magistrate denied the Evans motion. He commented, “Okay. We will proceed in the normal manner. There has been sufficient time to have a jail lineup.” The trial court inquired whether the prosecutor had asked her witnesses to leave the courtroom, and she indicated that she had.
When the magistrate inquired whether the parties were ready, trial counsel renewed the Evans motion and protested that identification was an important issue in the case.
The magistrate reiterated that the People were ready with three witnesses and the first time that the defense had raised the need for an Evans lineup and a continuance was moments earlier. It was denying the motion as it was untimely.
During the trial, trial counsel argued mistaken identification during his final argument.
B. The Relevant Legal Principles
Recently, in People v. Farnam (2002) 28 Cal.4th 107, 183, the court explained: “In Evans v. Superior Court (1974) 11 Cal.3d 617, 625 . . ., we concluded that ‘due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.’ (Fn. omitted.).”
“[W]hether fundamental fairness requires a lineup in a particular case [is a determination] which necessarily rests . . . within the broad discretion of the magistrate or trial judge. [Citations.]” (Evans, supra, 11 Cal.3d at p. 625.)
C. The Analysis
Apart from the issue of timeliness, the magistrate did not abuse his discretion by refusing the request for the Evans lineup. Identification was a material issue in the case. However, the circumstances of the identifications indicated that there was no reasonable likelihood of a misidentification. All the witnesses agreed that defendant’s overall appearance was similar to the robber’s. The day following the robbery, Reyes positively identified defendant in a six-pack photographic display. (Defendant’s photograph was in the No. 6 position in the six-pack.) Estepa identified the men in the No. 5 and No. 6 positions in the display as having an appearance similar to the robber’s. At the preliminary hearing, which occurred 22 days following the robbery, Estepa and Mayorga identified defendant in court as the robber, and Estepa testified that the day following the robbery, she had told a detective that the robber had a tattoo on his neck and a teardrop tattoo on the right side of his face. At the time of the robbery, Mayorga had also observed a tattoo on the robber’s neck that appeared to be some writing. During their trial testimony, Estepa and Mayorga said that their trial identifications of defendant were based upon their recollection of the robbery. During the robbery, the female victims and Reyes had an ample opportunity to observe the robber’s physical characteristics and his face. The car defendant owned was the same color and model as the getaway vehicle, and the numbers of the partial license plate obtained during the robbery matched defendant’s license plate. Trial counsel had the opportunity to show the weaknesses in the identifications at trial by cross-examination and argue those weaknesses during his final argument to the jury.
On this record, there is no reasonable possibility that a timely Evans lineup would have produced evidence that would have altered the outcome of the trial. “‘[I]n the case of in-court identifications not preceded by a lineup . . ., the weaknesses, if any, are directly apparent at the trial itself and can be argued to the court and jury without the necessity of depending on an attempt to picture a past lineup by words alone.’ [Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) The magistrate properly exercised his discretion by refusing to continue the case to permit the Evans lineup, and there was no denial of due process as there was no reasonable likelihood of a mistaken identification that the lineup would have tended to resolve.
II. The Sufficiency of the Evidence
Defendant contends that the evidence is insufficient to support the trial court’s finding that defendant’s year 2000 conviction for assault in case No. PA034526 constituted a serious felony within the meaning of section 1192.7, subdivision (c)(8), and thus was a “prior serious felony” and a “strike” within the meaning of sections 667 and 1170.12. He argues that there was no evidence that during the assault he personally inflicted great bodily injury.
We disagree.
A. Background
Defendant waived his right to a jury trial and permitted the trial court to make the findings on the truth of the prior conviction allegations.
The instant information alleged that defendant had the following serious felony convictions: (1) on August 29, 2001, in Los Angeles, in case No. KA051864, he had been convicted of robbery, a violation of section 211, and (2) on January 21, 2000, in Los Angeles, in case No. PA034526, he was convicted of assault by means of force likely to produce great bodily injury and with a deadly weapon, a violation of section 245, subdivision (a)(1)).
Initially, at the court trial on the truth of the prior convictions, the prosecutor offered into evidence the certified section 969b packet from the Department of Corrections and Rehabilitation (People’s exh. 1) and a reporter’s transcript of the preliminary hearing proceedings of December 6, 1999, in case No. PA034526 (People’s exh. 2). The prosecutor asked the trial court to take judicial notice of the court file in its possession, case No. KA051864, and specifically of the notations of the plea taken in that case on August 29, 2001, and of that abstract of judgment. The prosecutor pointed out that during the plea to robbery in case No. KA051864, defendant had admitted that he had a prior serious felony conviction of section 245, subdivision (a)(1), within the meaning of section 1170.12, a reference to the conviction in case No. PA034526.
The trial court admitted exhibits 1 and 3 into evidence. People’s exhibit 2 was admitted into evidence by reference.
After the hearing, the trial court had its clerk make a Xeroxed copy of People’s exhibit 2 and include it within the superior court file for any subsequent review. It also had the clerk photocopy pages 18 and 19 of the preliminary hearing transcript.
The trial court read the prison packet. It read pages 18 and 19 of People’s exhibit 1, a certified preliminary hearing transcript, the source of which was the district attorney’s court file for case No. PA034526. The court observed that the preliminary hearing transcript was certified by the court reporter and bore the court reporter’s original signature. The trial court took judicial notice of the court file in case No. KA051864, in that the trial court read and reviewed a minute order dated August 29, 2001, and the plea to the charge of robbery, as well as the admission of a “strike” that arose from appellant’s plea in case No. PA034526, which was the basis for the admission of the strike during his plea in case No. KA051864.
The trial court explained that the preliminary hearing testimony in case No. PA034526 revealed that the victim had suffered injuries of a detached retina and crushed lens. It concluded that such, which injuries constituted great bodily injury.
Defense counsel argued that identity was an issue. He asserted that it made no difference that defendant had admitted a prior serious felony conviction in case No. PA034526 in an unrelated proceeding. Collateral estoppel did not apply, and in each case, the People had the burden of demonstrating beyond a reasonable doubt that the conviction constituted a serious felony conviction. Defense counsel urged that the charged offense in case No. PA034526 was assault by means of force likely to produce great bodily injury, and the facts in this case did not involve an assault with a deadly weapon. Thus, the People had to demonstrate the personal infliction of great bodily injury before that felony constituted a prior serious felony conviction. He argued that the assault arose from a prison riot situation. Eyewitness prison guards saw defendant kicking at the victim with others. He asserted that in such a situation, the prosecution could not prove the personal infliction of great bodily injury, which would show the offense constituted a serious felony conviction.
During the argument on the sufficiency of the proof of the personal infliction of great bodily injury, the trial court said that it believed its obligation was to make a finding that defendant “personally caused the injury,” rather than merely finding that the accused aided and abetted the infliction of the great bodily injury. It told the prosecutor that the requirement for finding the personal infliction of great bodily injury was that the accused “actually caused the injury or participated in causing the injury.”
The trial court inquired whether defense counsel was inviting the trial court to read the preliminary hearing transcript in the case. Defense counsel replied by conceding that at the preliminary hearing, one deputy had testified that he observed the codefendant kicking the inmate victim and hitting him around the head. However, defense counsel claimed that there was no testimony indicating that defendant was other than a mere aider and abettor, or was merely present during the beating and kicking.
The trial court read the relevant eyewitness testimony. It indicated that the section 245, subdivision (a)(1), conviction arose from a melee during a prison riot. The trial court quoted from the preliminary hearing testimony. It further indicated that the testimony of Edgar Capifali was that he saw the inmate victim lying on the ground while various inmates took turns kicking and punching the victim. The witness testified that one of the assailants who engaged in taking a turn kicking and punching the victim was defendant. Another witness, Raymondo Castaneda, saw defendant present with the group that committed the beating and kicking, but he saw only one person kicking and hitting the victim, and that person was someone other than defendant.
Defense counsel argued that the last person involved in the beating appeared to have caused the injury, not defendant. He argued that the preliminary hearing testimony was insufficient in that what had to be proved was that defendant actually caused the injuries suffered.
After considering the authorities that trial counsel claimed supported his legal theory, the trial court made a true finding that the prior convictions alleged in the information constituted “serious felonies” and “strikes.” (§§ 1192.7, 667, subd. (a), 1170.12.) It explained that there was no contradiction in the preliminary hearing testimony. No one witness, including the victim, could say which blow or blows actually injured the victim’s retina and lens. However, the preliminary hearing testimony demonstrated that defendant was kicking the victim on the ground in the areas described. That conduct could have caused the injury or did cause the injury along with the blows from the other assailants. The evidence showed that defendant had directly inflicted force on the victim. Consequently, the evidence in the preliminary hearing transcript in case No. PA034526 was sufficient to support the trial court’s finding that defendant had personally inflicted great bodily injury.
B. The Relevant Legal Principles
Section 1192.7, subdivisions (c)(8) and (c)(23), includes within its definition of a “serious felony” “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm” and “any felony in which the defendant personally used a dangerous or deadly weapon.” (Italics added.)
Section 12022.7, subdivision (a), provides as follows: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. [¶] . . . [¶] (f) As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.”
A conviction of assault by means of force likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or the personal infliction of great bodily injury. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605.) The trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense. (People v. Myers (1993) 5 Cal.4th 1193, 1195.) For the purpose of proving the personal infliction of great bodily injury, the jury or the court may consider a certified preliminary hearing transcript as it is considered to be part of the record of the conviction. (People v. Reed (1996) 13 Cal.4th 217, 225.)
C. The Analysis
The decision in People v. Modiri (2006) 39 Cal.4th 481 (Modiri) addressed the very issue that defendant raises here. There, the question was whether the jury made a proper finding that the offense was a serious felony based on a theory the crime involved the personal infliction of great bodily injury after it was instructed with CALJIC No. 17.20, which purported to state the elements of that finding. Despite the difference in the procedural posture in Modiri and the present case, the issue presented here is the same: can a finding of a serious felony on the basis of the personal infliction of great bodily injury be made where the chaos at the scene of the assault prevents the witnesses from linking the victim’s injuries to a particular assailant, weapon, or blow. (See Modiri, supra, at p. 485.)
The Modiri court defined the elements for criminal liability for the infliction of great bodily injury during a group beating, as follows. Section 1192.7, subdivision (c)(8), contemplates physical contact of a forceful nature. (Modiri, supra, 39 Cal.4th at p. 493.) “The term ‘personally,’ which modifies ‘inflicts’ in section 1192.7, [subdivision] (c)(8),” refers to “an act performed ‘in person,’ and involving ‘the actual or immediate presence or action of the individual person himself (as opposed to a substitute, deputy messenger, etc.).’” (Modiri, supra, at p. 493.) The physical contact must be “‘[c]arried on or subsisting between individual persons directly’”; the “requisite force must be one-to-one, but does not foreclose participation by others.” (Ibid.) The terminology of the statute is not inconsistent with a group melee in which it cannot be determined which assailant, weapon, or blow had the prohibited effect. The statute calls for the person to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result. (Ibid.)
In Modiri, the court explained that where there is a group beating in which it is impossible to determine who or what inflicted the injury, the personal infliction of great bodily injury may be found only where the accused “personally ‘appli[es] unlawful physical force’” to the victim “sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants.” (Modiri, 39 Cal.4th at p. 494.) There is no infliction of great bodily injury where the accused merely assists another to produce injury and does not personally and directly inflict the injury. The accused must commit acts that “contribute substantially to the victim’s injured state.” (Ibid.) The force used, i.e., the “‘power, violence, compulsion, or constraint exerted upon or against a person,’” must be such that it causes or contributes to the requisite harm. (Ibid.) The accused’s role in the physical attack and in the infliction of great bodily injury cannot be “minor, trivial, or insubstantial.” (Ibid.) A personal infliction of great bodily injury does not occur where a mere aider and abettor fails to actually strike or injure the victim. (Id. at p. 495.) There must be “a direct physical link” between the accused’s own act and the victim’s injury. (Ibid.) Thus, even where the precise injuries are unclear, a true finding can be made in the following two situations: (1) where the force personally used by the accused during a group attack was serious enough that it may, by itself, have caused great bodily injury, and (2) where the physical force the accused and other persons applied to the victim at the same time combined to cause great bodily harm. (Modiri, supra, 39 Cal.4th at p. 496.)
Applying the legal principles set out in Modiri to the present assault, we find that the trial court’s comments demonstrate that it applied the proper standard in determining whether the prior conviction was a serious felony. The section 969b package shows that in case No. PA034526, defendant pled guilty as the result of a plea. Thus, apart from defendant’s invitation to the trial court to read the preliminary hearing transcript, that transcript was properly considered by the trial court as it was a reliable indicator of the nature of the prior conviction. (People v. Houck (1998) 66 Cal.App.4th 350, 356.) The damage to the victim’s eye—to his lens and retina—provides substantial evidence of the infliction of great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740, 752 [multiple abrasions and lacerations to the victim’s back and bruising of the eye and cheek will support a finding of the infliction of great bodily injury].)
Defendant personally participated in the group beating by taking a turn with others in kicking and punching the victim as he lay on the prison floor. This amounted to the direct infliction of force described by the court in Modiri. Although no eyewitness could testify that defendant’s blows to the victim were the sole or actual cause of the victim’s injuries, defendant’s blows to the victim were of such force and landed on the victim in such a way that it was reasonably likely that his blows could have or did cause the injury to the victim’s lens and retina. The evidence contained in the preliminary hearing transcript was sufficient to establish the commission of a serious felony on the theory that the assault involved the personal infliction of great bodily injury. (People v. Le (2006) 137 Cal.App.4th 54, 59-60.)
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J., DOI TODD, J.