Opinion
F074409
02-14-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND DONALD BRIONES, Defendant and Appellant.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF163914A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
INTRODUCTION
Appellant Raymond Donald Briones stands convicted of second degree robbery, in violation of Penal Code section 212.5, subdivision (c), and attempted second degree robbery. Briones filed a timely appeal of his convictions. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
References to code sections are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
In a complaint filed April 21, 2016, Briones was charged with second degree robbery and attempted second degree robbery. It was alleged the robbery count was a serious felony pursuant to section 1192.7, subdivision (c)(19). Briones was released on bail.
At the conclusion of the June 6, 2016 preliminary hearing, Briones was held to answer on the charges of attempted second degree robbery and second degree robbery, on the theory of "aiding and abetting and as an accessory." The information was filed June 7, 2016. Briones remained free on bail.
Both the defense and the People filed motions in limine. On August 15, 2016, the trial court held a hearing on the motions in limine, all of which were granted.
Presentation of evidence at trial began on August 17, 2016. Elizabeth Quiroz testified she was a team leader at a Jack In The Box on Union Avenue in Bakersfield. On April 5, 2016, around 4:50 a.m., Quiroz was working at the drive through window. After Quiroz took an order from a white SUV, the next vehicle "took awhile to pull up to the window" and there was "a minute or so gap" between vehicles. Quiroz thought they "were taking their time." There were two people inside the vehicle.
When the vehicle pulled up to the window, the driver did not look at Quiroz or attempt to pay for the order. A person got out of the vehicle, walked behind the vehicle, and approached the drive-up window; a shirt was covering their face. Quiroz decided to close the window. The person outside the window managed to open it, even though Quiroz was trying to hold it closed.
The person who approached the window had a red shirt over his head, with two holes where the "eyes were supposed to be." Once he had opened the window, he told Quiroz in a demanding and aggressive tone of voice to "give him all the money." Quiroz was scared and confused. The man was pointing his hand at her "like in a gun form."
Quiroz thought they might be playing a "cruel joke" and asked, "are you serious?" The man at the window responded, "I'm not kidding; give me all the money." The man reached toward his pants and Quiroz thought he was reaching for a real gun. He told Quiroz she had "five seconds to give him the money." Quiroz said she had to get the keys to the register and walked away from the window and headed to the office. At no time did the driver or passenger ask about their food order or make any attempt to pay for their order.
Surveillance cameras were on the premises and could be viewed in the office. When Quiroz got to the office, she checked the cameras and saw the vehicle had left. A few minutes later, she called 911.
Quiroz was not able to see the man's face or the complete face of the driver of the vehicle and was unable to identify any suspects. They did not get any money from the store.
The same morning, Brittney Thompson was working at a Jack In The Box on Ming Avenue in Bakersfield; she also was a team leader. This store also had surveillance video. A vehicle pulled up to the menu board, then delayed about five minutes before placing an order for a single sandwich.
After placing the order, the vehicle only pulled forward part of the way toward the drive through window. Someone approached the window, from outside the vehicle, and grabbed the window to keep Thompson from closing it. The suspect had a red shirt covering most of his face and appeared to be looking through an armhole. The suspect told Thompson to give him "all the money" in a demanding tone of voice.
After the suspect demanded the money, Thompson was scared. Thompson started to walk toward the kitchen while looking toward the window. She saw the suspect reach in and take the cash register. Thompson testified there was between $200 and $500 in the cash register. When the suspect walked back to the vehicle, he climbed in the passenger side; Thompson did not see a driver. Thompson called 911.
Officer Joshua Peña arrived at the Ming Avenue store at 5:20 a.m.; he was the second officer on the scene. Peña found a red Papa John's shirt at the scene with two small holes cut into it. The holes could be used to see out if the shirt was covering a person's head.
Detective Claude Brooks and his partner were the lead detectives on the Jack In The Box crimes. Brooks reviewed surveillance footage from the Union Avenue and Ming Avenue stores. The two surveillance videos were played for the jury.
Brooks ran a records check on the license plate of the vehicle seen in the video that was involved in the attempted robbery and robbery. The vehicle was registered to Christina Briones.
Brooks went to the registered address for the vehicle and found the vehicle at that location. Briones was at the residence; he was detained and placed in handcuffs. A search of the residence was conducted. Briones was transported to the police station for questioning. The interview of Briones was recorded.
The trial court held an Evidence Code section 356 hearing on admissibility of the recorded interview. The recording of Briones's interview was played for the jury. A transcript of the interview also was provided to the jury.
During the course of the interview, Briones admitted working at Papa John's. The day of the Jack In The Box incidents, Briones said everyone "was just really scared" and "it was just really quick." That night, he had tried Xanax for the first time and did not even recall how much money he got from the robbery. Briones did not recall what he did with the register, but knew he had not taken it home.
Briones said "everything with the register went really fast" and he was "really scared." A man asked Briones to drive for him and help rob the stores; Briones succumbed to "peer pressuring." The man wrapped a T-shirt around his head to disguise himself. Briones admitted driving the vehicle that pulled up to the store on Union Avenue. He also admitted being at the second store.
Briones happened to meet the other person at a shopping center; he did not know the man's name. Briones claimed he had never met the man before seeing him at the shopping center. The man was light skinned with dark, curly hair. Briones insisted he did not know the man's name. Later, Briones claimed the man's name was Ricardo, but he did not know his last name. Briones also later admitted having connected with the man more than a month before the robbery and attempted robbery.
Brooks testified he searched Briones's cell phone and found text messages to and from someone identified as "Richie Rich." At this point, defense counsel asked for a sidebar. The trial court excused the jury and conducted an Evidence Code section 402 hearing. Defense counsel argued that the phone number for Richie Rich, or Ricardo, had not been disclosed to the defense; the evidence was possibly exculpatory; and moved for a mistrial.
Brooks testified as part of the Evidence Code section 402 hearing that the phone number listed for Richie Rich belonged to an individual named Richard Kelly. Brooks had not made any contact with Kelly.
At this point in the testimony, defense counsel argued there was a Brady violation. Defense counsel argued he did not know "there was a phone number" for this individual and did not know the individual's real name, because the defense had not been provided this information. Despite Briones's statements to police in his interview, defense counsel argued, "it could have been something he was making up."
Brady v. Maryland (1963) 373 U.S. 83.
The People argued that the theory of the case was that Briones was an aider and abettor; Briones admitted in his interview that he was a participant in both incidents; the other individual had not been located or questioned by the police; and whether Kelly was the other participant or not was being investigated. The People argued there was "nothing potentially exculpatory about this" information.
The police apparently obtained a search warrant to search Briones's cell phone; the results of that search generated the information on Richie Rich aka Richard Kelly. Kelly's address was within the metropolitan Bakersfield area. The trial court indicated that Kelly's phone number and address would be confidential until the next morning, so as not to compromise any ongoing investigation; the trial would be delayed until the next day; and the trial court would consider the matter again the next morning. The results of the cell phone search, other than Kelly's phone number and address, were to be provided immediately to the People and the defense.
The next morning, defense counsel argued the People failed to disclose that Briones's cell phone was searched and the results of that search. The trial court noted that the police had failed to inform the prosecution of this as well. The trial court declined to instruct the jury with CALCRIM No. 306, Untimely Disclosure of Evidence.
The trial court found that the information from the search would not be helpful to the defense; the texting between Briones and Richie Rich would have assisted the prosecution, if it were to be allowed into evidence; and the information obtained from the cell phone was not exculpatory. The trial court concluded there was no Brady violation. The trial court also noted that this information was available to the defendant, Briones, and could have been communicated by Briones to defense counsel. The trial court denied the motion for a mistrial.
The inculpatory text messages, and any other information obtained from the cell phone search, were not allowed into evidence. --------
The parties crafted a stipulation, which was read to the jury, to the effect that: (1) a potential suspect has been identified by law enforcement through the use of the Richie Rich cell phone contact; (2) law enforcement has information that there is an address associated with the identity of a potential suspect; and (3) law enforcement investigation is ongoing and as of yet, no attempt has been made to contact the potential suspect.
The jury returned verdicts of guilty on the two charged offenses.
Briones submitted a statement in mitigation prior to sentencing. The probation report reflected that Briones had a prior conviction for violating section 148 and was on misdemeanor probation when the current offenses were committed.
The trial court found as an aggravating factor that Briones was on probation when the offenses were committed. It also found the crimes to be "very serious." The trial court concluded the midterm was the appropriate sentence and imposed consecutive sentences because the crimes were committed at separate locations.
Before pronouncing sentence, the trial court noted it had reviewed the probation report, the statement in mitigation from the defense, and letters from Briones's family. After hearing argument from defense counsel and the People as to an appropriate sentence, the trial court imposed sentence.
On the robbery count, the midterm of three years in prison was imposed. A sentence of one-third the midterm for attempted second degree robbery, or eight months, was imposed for this count, to run consecutively. Fines and fees were imposed and a total of 40 days custody credit was awarded.
The abstract of judgment accurately reflects the sentence articulated by the trial court. Briones filed a timely notice of appeal.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, on July 25, 2017. That same day, this court issued its letter to Briones inviting him to submit a supplemental brief. No supplemental brief was filed.
Although the information obtained from a search of Briones's cell phone records was not disclosed to the defense until after trial commenced, the trial court correctly determined there was no Brady violation. The Brady rule is that the prosecution has a constitutional duty to disclose to the defense material, exculpatory evidence. (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.) The duty extends to information in the possession of those acting on the prosecution's behalf, such as the police. (Ibid.)
A Brady violation occurs when the evidence is favorable to the defense; it has been suppressed by the People, either deliberately or inadvertently; and the defense is prejudiced as a result. (People v. Harrison (2017) 16 Cal.App.5th 704, 709, citing People v. Salazar (2005) 35 Cal.4th 1031, 1043.) Here, the information obtained from the search of Briones's cell phone was inculpatory, not exculpatory, and could not have assisted in a defense of the case; thus, there is no Brady violation. Furthermore, the trial court granted the defense motion to preclude the prosecution from introducing into evidence the inculpatory information obtained as a result of the cell phone search. Clearly, Briones was not prejudiced by the late disclosure.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.