Opinion
D058011 Super. Ct. No. SCN261451
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO BELTRAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.
I.
INTRODUCTION
In March 2009, a jury found Alberto Beltran guilty of two counts of robbery (Pen. Code, § 211) (counts 1, 2). The jury also found that Beltran personally used a firearm during the commission of each offense (§ 12022.53, subd. (b)). The trial court subsequently found that Beltran had suffered two prior strikes (§§ 667, subds. (b)-(i), 668, and 1170.12), a serious felony prior (§§ 667, subd. (a)(1), 668, and 1192.7, subd. (c)), and a prison prior (§§ 667.5, subd. (b), 668). The trial court sentenced Beltran to an aggregate sentence of 50 years to life in prison plus an additional consecutive term of 30 years.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Beltran claims that there is insufficient evidence to support the jury's verdicts finding him guilty of robbery (counts 1, 2). Beltran also claims there is insufficient evidence to support the jury's true findings on the related firearm enhancements. Finally, Beltran claims that the court erred in failing to properly instruct the jury with respect to opinion testimony offered by various law enforcement officers concerning Beltran's identity as the perpetrator of the robberies and his use of a firearm during the commission of the robberies. We affirm the judgment.
II.
FACTUAL BACKGROUND
On March 28, 2009, at approximately 9:00 p.m., Beltran committed an armed robbery of a Rodeway Inn in Carlsbad (Rodeway Inn robbery). During the robbery, Beltran said to the night desk clerk, Nilesh Mehta, "this is a robbery," and "give me the cash quick." Beltran also said, "I have a gun," and displayed the handle of a gun that he partially removed from his front pants pocket. Mehta gave Beltran approximately $250 in cash, and Beltran left the motel.
The establishment is alternatively referred to in the record as the Rodeway Inn and the Rodeway Motel. In the interest of clarity, we use Rodeway Inn throughout this opinion.
On April 22, 2009, at approximately 6:45 p.m., Beltran committed an armed robbery of a Chevron gas station in San Marcos (Chevron robbery). During the robbery, Beltran said to the clerk, John Rosenbach, words to the effect of, "This is no joke. This is a robbery. Give me the money." Beltran displayed a portion of gun that was in his front pants pocket. After Rosenbach gave Beltran approximately $500 in cash, Beltran left the gas station.
We describe the facts of each robbery in greater detail in our discussion of Beltran's sufficiency claims in part III.A, post.
III.
DISCUSSION
A. There is sufficient evidence in the record to support the jury's guilty verdicts on the robbery counts and the jury's true findings on the related firearm enhancements
Beltran claims that there is insufficient evidence to support the jury's verdicts finding him guilty of robbery (§ 211) (counts 1, 2). Beltran also claims that there is insufficient evidence to support the jury's true findings on the related firearm enhancements (§ 12022.53, subd. (b)).
1. Standard of review
In determining the sufficiency of the evidence to support a guilty verdict, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 (Jackson).) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) " 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " [Citation.]' [Citation.]' " (People v. Clark (2011) 52 Cal.4th 856, 943.) "A state court conviction that is not supported by sufficient evidence violates the due process clause of the Fourteenth Amendment and is invalid for that reason." (People v. Rowland (1992) 4 Cal.4th 238, 269, citing Jackson, supra, at pp. 313-324.)
The same principles apply to our determination of the sufficiency of the evidence to support a true finding on a firearm enhancement. (See People v. Alvarez (1996) 14 Cal.4th 155, 225.)
2. Governing law
a. Robbery
" '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." (§ 211; see People v. Scott (2009) 45 Cal.4th 743, 749.) . . . ' [Citation.]" (People v. McKinnon (2011) 52 Cal.4th 610, 686.)
b. Personal use of a firearm
Section 12022.53 provides in relevant part:
"(b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including robbery (§ 211)], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."
"The character of the weapon used upon the victim may be shown by circumstantial evidence" (People v. Green (1985) 166 Cal.App.3d 514, 517), including "testimonial descriptions of the weapon and its role in the commission of the crime . . . ." (People v. Hayden (1973) 30 Cal.App.3d 446, 452, disapproved on another ground by People v. Rist (1976) 16 Cal.3d 211, 223, fn. 10.) There is no requirement that the firearm itself be introduced in evidence. (People v. Williams (1976) 56 Cal.App.3d 253, 255.)
3. There is sufficient evidence in the record to support the jury's guilty verdicts on the robbery counts
The record contains considerable evidence from which the jurors could have reasonably found that Beltran was the perpetrator of both robberies. The record contains surveillance videos of both robberies. Those videos depict an individual similar in appearance to Beltran committing the robberies. Two law enforcement officers, National City Detective Murry Estabrook and State of California Law Enforcement Supervising Agent Gary Thomas, each testified that they had identified Beltran as the robber depicted in photographs created from surveillance videos of the two robberies. Both Estabrook and Thomas stated that they were familiar with Beltran's appearance: Estabrook explained that he had contact with Beltran "within a two-week period" of April 29, 2009, and Thomas noted that he searched Beltran during his arrest on April 29 and that he had had "a whole bunch" of contacts with Beltran in the past.
The Rodeway Inn robbery occurred on March 28, 2009, and the Chevron robbery occurred on April 22, 2009.
The testimony of the victims of the robberies also supports the verdicts. Nilesh Mehta, the victim of the Rodeway Inn robbery, testified that Beltran looked similar to the robber. Mehta stated that the robber had facial hair and tattoos similar to those depicted in photographs of Beltran. John Rosenbach, the victim of the Chevron robbery, testified that Beltran looked similar to the perpetrator of that robbery. Rosenbach described the robber as being approximately between five feet eight inches and five feet 10 inches tall and having tattoos. Beltran is approximately six feet tall and has tattoos on his forearms.
The robberies also were committed in a similar fashion. The suspect wore a black t-shirt and sunglasses and displayed a gun to each victim in a similar manner.
We reject Beltran's argument that there is insufficient evidence to support the jury's guilty verdicts because the surveillance videos and the still photographs derived from those videos provide an insufficient basis for the jury to have found that Beltran was the perpetrator of the two robberies. As noted above, the videos depict a person similar in appearance to Beltran committing the robberies. In light of the videos, and the testimony of the victims and the law enforcement officers in this case, we conclude that there is sufficient evidence in the record to support the jury's guilty verdicts.
The jury requested to view the surveillance videos again during deliberations and the court provided the videos to the deliberating jury for its viewing.
4. There is sufficient evidence in the record to support the jury's true findings on the related firearm enhancements
With respect to the true finding on the firearm enhancement on count 1, the Rodeway Inn robbery, Mehta testified that the robber pulled the handle of a "gun" half-way out of his right front pocket and said, "I have a gun." According to Mehta, the gun appeared to be real. Mehta told the police shortly after the robbery that the robber had a gun. In addition, as Beltran acknowledges in his brief, the surveillance video of the robbery depicts the robber "displaying something in his pocket" to Mehta during the robbery as he states, "I have a gun."
With respect to the true finding on the firearm enhancement on count 2, the Chevron robbery, Rosenbach testified that the robber said words to the effect of, "This is no joke. This is a robbery. Give me the money." While saying these words, the robber pulled what, according to Rosenbach, "looked like a black revolver out of his front pocket with his right hand." The gun looked real to Rosenbach. Rosenbach explained, "I thought he was serious that he indeed did have a gun. I did not doubt that at all." Rosenbach told police who responded to the scene of the robbery that the robber had pulled out a revolver during the robbery. The surveillance video of the robbery depicts the robber taking some portion of an object from his pocket and showing it to Rosenbach just before Rosenbach gives the robber money from the cash register.
We reject Beltran's argument that there is insufficient evidence to support the firearm enhancements because Mehta's and Rosenbach's testimony was "less than certain" and "not supported" by the video surveillance recordings. The victims repeatedly and unequivocally testified that the robber used a gun during the robberies. Any inconsistencies in the victims' testimony with respect to the character of the firearm used were for the jury's consideration at trial, and do not render the evidence supporting the true findings insubstantial. Finally, the surveillance video recordings are consistent with the victims' testimony in that they depict the robber taking some portion of an object from his pocket and showing it to the victims while committing the robberies.
Accordingly, we conclude that there is sufficient evidence in the record to support the jury's true findings on the firearm enhancements on counts 1 and 2. B. The trial court did not err in failing to instruct the jury sua sponte with respect to opinion testimony offered by various law enforcement officers concerning Beltran's identity as the perpetrator of the robberies and his use of a firearm during the commission of the robberies
Beltran claims that the trial court erred in failing to instruct the jury as to how it was to evaluate the testimony of two law enforcement officers who identified Beltran as the robber depicted in photographs created from surveillance videos of the robberies. Beltran also claims that the trial court erred in failing to instruct the jury as to how it was to evaluate the opinion testimony of two other law enforcement officers concerning Beltran's use of a firearm during the commission of each robbery.
We conclude that the officers' testimony constituted lay, rather than expert, opinion testimony and that the trial court therefore had no sua sponte duty to provide such instructions.
1. Factual and procedural background
As noted in part III.A.3, ante, Detective Estabrook and Supervising Agent Gary Thomas both testified that they had identified Beltran as the robber depicted in photographs created from surveillance videos of the two robberies.
On cross-examination, Carlsbad Police Officer Brendan Kidd testified that it appeared to him that the "slide portion or top portion of a pistol" could be seen in the robber's hand in one of the photographs created from the surveillance video of the Rodeway Inn robbery.
San Diego County Sheriff's Deputy Frank Stalzer testified that when he viewed a video of the Chevron robbery, it appeared to Deputy Stalzer that the robber had displayed a small silver revolver during the robbery.
Defense counsel did not request that the court provide the jury with any instructions concerning how it should evaluate the officers' testimony.
2. Governing law
A trial court has a statutorily mandated sua sponte duty to provide instructions concerning the jury's consideration of expert opinion testimony offered during a criminal trial. (§ 1127b; People v. Housley (1992) 6 Cal.App.4th 947, 957 ["[t]he court is . . . required to instruct the jury sua sponte on . . . expert testimony," citing section 1127b].
Section 1127b provides:
"When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows:
"Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefore, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable.
"No further instruction on the subject of opinion evidence need be given."
In contrast to expert opinion testimony, there is no authority to support the proposition that a trial court must instruct the jury sua sponte with respect to its consideration of lay opinion testimony. On the contrary, CALCRIM No. 333, the pattern jury instruction concerning lay opinion testimony, which Beltran cites in his brief, states, "Give this instruction on request when a lay witness gives opinion testimony." (Italics added.)
In People v. Ingle (1986) 178 Cal.App.3d 505, 513-514, the court noted that a trial court may admit lay opinion testimony concerning the identity of a robber depicted in a surveillance photo where the witness has personal knowledge of the defendant's appearance and the testimony may assist the trier of fact:
"It is now clearly established that lay opinion testimony concerning the identity of a robber portrayed in a surveillance camera photo of a robbery is admissible where the witness has personal knowledge of the defendant's appearance at or before the time the photo was taken and his testimony aids the trier of fact in determining the crucial
identity issue. [Citations.] Where the photo is unclear, or the defendant's appearance has changed between the time the crime occurred and the time of trial, or where for any reason the surveillance photo is not conclusive on the identity issue, the opinion testimony of those persons having knowledge based upon their own perceptions [citation] of defendant's appearance at or before the time the crime occurred is admissible on the issue of identity, and such evidence does not usurp or improperly invade the province of the trier of fact. [Citations.]" (Ibid.)
3. Application
Detective Estabrook's and Agent Thomas's testimony clearly constituted lay opinion testimony concerning Beltran's identity as the person depicted in the photographs created from the surveillance videos. (See People v. Ingle, supra, 178 Cal.App.3d at pp. 513-514.)
With respect to Officer Kidd's and Deputy Stalzer's testimony concerning the robber's use of a firearm, unlike the testimony of the "expert in photographic identification," discussed in U.S. v. Brown (9th Cir. 1974) 501 F.2d 146, 148, reversed on other grounds sub nom by U.S. v. Nobles (1975) 422 U.S. 225, 247, footnote 6, which Beltran cites in his reply brief, neither officer in this case was called as, or qualified as, an expert in photographic identification. Rather, Officer Kidd and Deputy Stalzer testified as percipient witnesses concerning their investigation into the robberies, and in the course of that testimony provided lay opinion testimony that the images at issue appeared to depict a firearm. Thus, the trial court was not required to instruct the jury sua sponte concerning its evaluation of Officer Kidd's and Deputy Stalzer's testimony. (See People v. Haynes (1984) 160 Cal.App.3d 1122, 1137 [percipient witness who gave "detailed testimony concerning his knowledge of .410 shotguns," was not an expert witness for which trial court was required to provide § 1127b instruction].)
Because Beltran raised no objection in the trial court or on appeal as the admissibility of this testimony, we express no view as to the admissibility of lay opinion testimony that a photograph or a video appears to depict a firearm.
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In the absence of a request, the trial court had no duty to instruct the jury concerning its evaluation of the officers' lay opinion testimony.
IV.
DISPOSITION
The judgment is affirmed.
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AARON, J.
WE CONCUR:
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McCONNELL, P. J.
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HALLER, J.