Opinion
B229006
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. MARCO BARILLAS SANDOVAL, Defendant and Appellant.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA370642)
APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, appellant was found guilty of second degree robbery (Pen. Code, § 211). In addition, the trial court found he was previously convicted of a felony within the meaning of the "Three Strikes" law (§ 1170.12, subds. (a) - (d)), was previously convicted of a serious felony (§ 667, subd. (a)(1)), and he served two prior prison terms (§ 667.5, subd. (b)). Appellant was sentenced to 12 years in state prison.
All further statutory references are to the Penal Code unless otherwise noted.
Appellant contends his trial attorney was ineffective because he neglected to: (a) object to the admission of his prior uncharged robbery conviction; and (b) request the jury be instructed that the victim's prior misconduct, i.e., intentionally writing a check on an account containing insufficient funds, bore negatively on his credibility. Appellant also argues the trial court committed reversible error because it did not instruct the jury, sua sponte, that evidence of his prior uncharged robbery conviction could only be considered for a limited purpose. Finally, he maintains the cumulative effect of the defects in his trial requires reversal of the judgment.
The record does not reflect the reasons trial counsel failed to act in the instances appellant asserts were erroneous. Therefore it does not substantiate appellant's claims that his trial attorney was ineffective. Moreover, the court had no duty to provide the jury with a pinpoint instruction on witness credibility as that topic was adequately addressed in another properly given instruction. Appellant's claims are rejected and the judgment is affirmed.
I. FACTS
Appellant robbed the same person - Michael Freidman - on two separate occasions. The first robbery occurred on October, 31, 2009 at approximately 9:00 p.m. and the second robbery was on April 24, 2010. Appellant was charged with committing the second robbery, however, evidence corresponding to the first robbery was admitted pursuant to Evidence Code section 1101, subdivision (b). A. Prosecution Case
On October 31, 2009 at approximately 9:00 p.m., Michael Friedman was walking to a market in the area of Pico and West Boulevards. Appellant and a female approached. Appellant held a knife to Friedman and ordered him to turn over his money. Friedman provided appellant with his wallet whereupon appellant ran away. The female remained in the area and Friedman asked her whether she was with appellant. She indicated she did not know what Friedman was talking about. Friedman called 911 but did not cause a police report to be filed.
On April 24, 2010 at approximately 2:50 a.m., Friedman was walking to a 7-Eleven in the area of San Vicente and Pico Boulevards - a location three to five blocks away from the area where he was previously robbed. He observed and recognized appellant and the female from the previous robbery.
Appellant ran "very fast" toward Friedman. He had his fists clenched, was leaning forward, and assumed an "aggressive fighting stance." Appellant stood next to Friedman's face and demanded, "Give me your money, motherfucker." Friedman was "scared again" as he reflected on his prior encounter with appellant and thought appellant might have a weapon in his pocket. Friedman took approximately $85 (consisting of $20 and $1 bills) from his pocket and threw it on the ground in an effort to prevent appellant from attacking him. Appellant picked up the cash, placed it in his pocket, and jogged away. Friedman ran to the nearest pay telephone and dialed 911. He crouched behind the phone so appellant could not see he was calling the police. He described the assailant to the 911 operator as a male Hispanic in his middle twenties.
At trial, Friedman testified the person who robbed him in April 2010 was in his "late twenties to thirties."
Officer Oscar Rivera of the Los Angeles Police Department responded to the 911 call. Near the location of the crime, he observed appellant and a female. They matched the description of the suspects and were detained. Friedman was taken to the location of the detention and identified appellant as the perpetrator of the robbery. A search of appellant's pockets uncovered $111 in cash - five $20 bills and the balance in $1 bills. B. Defense Case
A portion of Mr. Friedman's October 31, 2009 call to the 911 operator was played. In that telephone call, Friedman indicated the person who robbed him was a Mexican male who was 16 or 17 years old.
The parties stipulated that on September 20, 2006, Friedman "admitted that on October 8, 2005, in King County Washington, he wrote a check to University Honda in the amount of $2,951.53 knowing and with the intent to defraud that he had insufficient funds to cover the full amount of the check presented."
II. DISCUSSION
A. The Record Does Not Support Appellant's Claim that Trial Counsel Was Ineffective for Failing to Object to Evidence Pertaining to the Prior Robbery
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
"A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
The record does not reveal why defense counsel did not object to the admission of evidence related to the prior robbery. Moreover, there was a satisfactory explanation for not doing so. Friedman testified the same person robbed him on two occasions. However, evidence relating to the first robbery indicated he described the perpetrator as a teenager whereas evidence corresponding to the second robbery indicated the assailant was in his twenties or thirties. Thus, defense counsel could have rationally believed that the introduction of evidence related to the first robbery cast doubt on the accuracy of the victim's identification of appellant as the perpetrator of the second robbery. The four corners of the record do not support appellant's claim of ineffective assistance of trial counsel.
In fact, defense counsel capitalized on this evidence in closing argument: "[Freidman] said previously that the person who he saw on October 31st, which he thought was [appellant], looked sixteen, seventeen years old. [¶] And, as we know, he described [appellant] as . . . in [his] late twenties, early thirties yesterday." Defense counsel later argued, "And it is so clear [the] person [who robbed Friedman on October 31st] had nothing to do with [appellant]. That person looked entirely different from [appellant]. He looked sixteen, seventeen. [¶] [Friedman] admits on the stand that [appellant] looks . . . in his late twenties, early thirties. [¶] . . . [¶] [H]e's mistaken that this is the same person."
Apart from the absence of a record supporting appellant's contention, it is not reasonably likely the result of the trial would have been different if evidence of the prior robbery had been excluded. While Friedman was on the telephone with the 911 operator describing the perpetrator, Officer Rivera was approaching the location of the robbery. He observed appellant and a female and noted that they matched the description given by Friedman. Friedman had a prime opportunity to observe appellant in that appellant stood next to Friedman's face. He identified appellant at the crime scene and in court as the person who robbed him. The denominations of money taken from Friedman and placed in appellant's pocket were consistent with the denominations of money the police seized from appellant's pockets. Evidence of the prior robbery conviction did not undermine confidence in the result of the trial. B. The Trial Court Had No Duty to Give the Jury a Limiting Instruction
Appellant contends the trial court had a sua sponte duty to instruct the jury pursuant to CALCRIM No. 375 that (1) the People have the burden of proving the prior robbery by a preponderance of the evidence before it may be considered by the jury, (2) the evidence may only be considered for the purpose of determining whether he was the person who committed the charged offense, and (3) if the jury concludes he committed the prior offense, that conclusion is not sufficient by itself to prove him guilty of the charged offense.
"[I]n general, the trial court is under no duty to instruct the jury sua sponte on the limited admissibility of evidence of past criminal conduct." (People v. Collie (1981) 30 Cal.3d 43, 64, fn. omitted.) Appellant recognizes this Supreme Court holding but seizes on the following language in the opinion: "There may be an occasional extraordinary case in which unprotected evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel's inadvertence." (Id. at p. 64.)
This is not such an extraordinary case. The evidence of the prior robbery was highly relevant to the issue of identity because Friedman testified the same person who perpetrated the charged offense also committed the prior offense. Moreover, evidence of the prior robbery was not unduly prejudicial because, as previously noted, appellant was able to use the prior offense to his benefit in that the description Friedman gave to the 911 operator when reporting the prior offense indicated the perpetrator was significantly younger than appellant. C. Defense Counsel Was Not Required to Request a Pinpoint Instruction Regarding the Victim's Character
Contrary to appellant's argument, the judgment of conviction is not subject to reversal on the ground that appellant received ineffective assistance of counsel as a result of counsel's failure to request a limiting instruction. First, the record is devoid of counsel's reasons for not requesting the instruction. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) Second, counsel could have rationally concluded that the instruction placed emphasis on the existence of his prior robbery. (Ibid.) Third, given the evidence of identity set forth in Section II(A), it is not reasonably probable the result of the trial would have been different if a limiting instruction had been given. (Ibid.)
Appellant claims the judgment of conviction should be reversed because his trial attorney neglected to request a jury instruction, pursuant to CALCRIM No. 316, which provides: "If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. . . ." He maintains the instruction could have assisted the defense in persuading the jury that, due to Friedman's prior act of passing an insufficient funds check, his testimony lacked credibility. Appellant's argument lacks merit for familiar reasons.
There was a satisfactory explanation for not requesting such an instruction. The trial court instructed the jury, pursuant to CALCRIM No. 226, that it may consider conduct of a witness that reflects on his believability in assessing the credibility of the witness. In addition, CALCRIM No. 226, unlike CALCRIM No. 316, did not contain the following cautionary language: "The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility."
Defense counsel could have tactically decided not to request CALJIC No. 316 because the jury was properly guided on how to assess a witness's credibility in CALCRIM No. 226 and that instruction excluded language that was arguably unfavorable to the defense. Because the record does not demonstrate why counsel failed to request the instruction, and there were legitimate reasons for choosing not to make such a request, the claim of ineffective assistance of trial counsel is without merit. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
In addition, it is not reasonably probable the result of the trial would have been any different if defense counsel requested, and the trial court gave, CALCRIM No. 316. Not only was the issue of credibility covered by CALCRIM No. 226, but defense counsel argued to the jury that Friedman's believability and "character for truthfulness" was questionable because he "writes bad checks." The jury was provided with the necessary tools to address and resolve whether Friedman's credibility was suspect given the fact that he passed an insufficient funds check. Moreover, as explained in Section II(A), the evidence implicating appellant was strong. Appellant has not established his counsel's inaction prejudiced his case. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) D. The Cumulative Impact of Errors Do Not Require Reversal
Appellant contends the cumulative effect of trial counsel's inadequacies and the trial court's error requires reversal of the judgment of conviction. Appellant has not demonstrated his counsel's performance fell below professional norms in any respect or that the trial court committed any error. Whether considered independently or together, appellant's claims do not warrant appellate relief. (See People v. Howard (2010) 51 Cal.4th 15, 45; People v. Abilez (2007) 41 Cal.4th 472, 523.)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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We concur:
TURNER, P. J.
KRIEGLER, J.