Opinion
2d Crim. No. B225760
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. RANDY CRESPIN, Defendant and Crespin.
Carlo Andreani, 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, Paul Roadarmel, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. KA087570)
(Los Angeles County)
Randy Crespin appeals from the judgment following his conviction by jury of second degree robbery. (Pen. Code, § 211.) The jury also convicted his codefendant, Francisco Ulloa, of second degree robbery and found that he used a firearm during the robbery. (§ 12022.53, subd. (b).) Ulloa is not a party to this appeal. (See People v. Ulloa, 2d Crim. No. B223203.) Crespin waived his right to a jury trial on the section 667, subdivision (a) prior serious felony and the section 667, subdivisions (b) through (i) prior felony strike allegations. After finding those allegations were true, the trial court sentenced him to 11 years in state prison (a 3-year middle term for robbery, doubled, with a 5-year serious felony enhancement). Crespin contends that the trial court abused its discretion and deprived him of due process by denying his requests to continue the trial. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
On July 13, 2009, Crespin, Ulloa, and the victim, Syed Wasit, each lived within a few blocks of the Yes Plaza at Fullerton and Colima Roads in Rowland Heights. At approximately 10:00 p.m., Wasit was driving in the parking area of his apartment complex at 1940 Fullerton Road. The area was dimly lit with a small yellow light.
Before parking his car, Wasit noticed that two Hispanic men in their 20's were leaning against a wall in the corridor near the complex parking area. He got a "good look" at them from a distance of about four feet as he approached and parked his car. He later identified Crespin and Ulloa as those men. Ulloa wore a black or dark t-shirt, jeans, and a bandanna that covered the lower half of his face. Crespin wore jeans, a light, long-sleeved, button-down shirt and a black baseball cap.
Wasit parked his car, got out, and walked by Crespin and Ulloa. Crespin grabbed Wasit's keys, and broke them apart. Crespin then had several of Wasit's key rings, some keys, and a chain fob with the initials "SW." Wasit still had the ring with his apartment key. As Wasit tried to recover his other keys from Crespin, Ulloa approached and pointed a "grayish metal" semiautomatic gun at his head. Wasit stepped back. Ulloa lowered the gun to Wasit's ribs and repeatedly said, "[G]ive me your fuckin' wallet." Wasit was "scared." He gave Ulloa his wallet. Crespin took Wasit's cell phone. One of them grabbed a bag that Wasit was holding. Ulloa and Crespin ran away, toward Fullerton Road.
Wasit went to his apartment, called 911, and reported the robbery. A few minutes later, Los Angeles County Sheriff Deputy Phillip Geisler arrived and interviewed Wasit. He told Geisler that the robbers took over $100, in $20, $5 and $1 bills.
Unless otherwise indicated, deputies or investigators are employed by the Los Angeles County Sheriff's Department.
Geisler spoke with Wasit and broadcast the following description of the suspects: "Suspect number one who was armed with the semi-auto was a male Hispanic approximately . . . 25 to 28 years old wearing Levi's, black short sleeve T-shirt, and had a black and white . . . bandanna. . . . [¶] [S]uspect number two was a male Hispanic, early twenties, Levis, light-colored long sleeve button-down shirt, black baseball cap with a light mustache, 5-7, 5-8 medium build. [¶] And . . . suspect number one . . . was about 5-7 . . . as well, medium to thin build." The broadcast identified the crime scene location.
Just after hearing the broadcast, Deputy Herman Camacho saw a Hispanic man running through an alley, within a quarter mile of the crime scene. The suspect (later identified as Crespin) wore an unbuttoned "light brown or black . . . button-up shirt," over a white undershirt. Crespin looked "startled" or surprised when he saw Camacho, and kept running. Camacho radioed for assistance. He saw plastic cards drop to the ground as Crespin ran. Camacho picked up the cards, including gift cards and a credit card, and other items that bore Wasit's name.
Around 10:00 p.m., Deputy Esther Kim went to Wasit's apartment complex in response to Camacho's radio call. She saw a shadow of a person walking into a carport. When Camacho joined Kim, they found Crespin in the carport, hiding under a tarp. He was breathing heavily and sweating and looked surprised. The only shirt he wore was a white undershirt. They searched him and found his wallet and $68 in cash that was not in the wallet. They also found a ring with keys; Crespin told Kim that the keys were his. The key ring had a flat black-plastic tag or fob with the initials "SW." Camacho first noticed the initials at the station, later that night.
At about 10:15 p.m., Deputy David Chi drove a patrol car to the Yes Plaza shopping center at the corner of Fullerton and Colima Roads, north of Wasit's apartment complex. Chi parked the patrol car, with its amber lights facing the Plaza's dumpster area. Within five minutes, Ulloa walked from the plaza's dumpster area wearing a gray t-shirt. He was sweating heavily and seemed nervous.
Chi told Ulloa to show his hands and turn around. Ulloa eventually complied. Chi detained and searched him, but did not find a gun, money, a bandanna, or other property.
At approximately 10:30 or 10:40 p.m., Geisler drove Wasit to an area near his home to participate in a field showup. When they arrived at the showup site, Wasit recognized and identified Crespin as the robber who did not use a gun "as soon as [he] looked at him." Crespin then wore an undershirt, without the baseball cap or long-sleeved shirt that he wore during the robbery. Wasit said, "[Y]es, that's him, hundred percent." Wasit later identified Ulloa "as the second suspect with the gun."
During the July 13 robbery, the inside and outside of the gunman's arm would have been visible to Wasit. That night, when Geisler had asked whether the robbers had tattoos, Wasit did not mention any. Ulloa had tattoos on each of his arms, and on his right wrist.
Deputies and detectives searched the area from the crime scene to the locations where they found Crespin and Ulloa. They did not find the gun, the bandanna, or the black t-shirt that the armed robber wore on July 13.
On July 14, detectives searched the areas near Wasit's apartment complex in daylight. Deputy Greg Salcido recovered Wasit's wallet in ivy near his apartment complex, about 50 feet from the plaza's dumpster area. The wallet held items bearing Wasit's name (a credit card, a medical card, and a check), but no money. The site where Salcido recovered the wallet was adjacent to a gang hangout. There was no evidence that any detective or deputy asked anyone at the gang hangout about the robbery.
Crespin and Ulloa each presented a defense. Crespin testified, denied that he robbed Wasit, and argued that it was a case of mistaken identification. He claimed he was walking home when he noticed police activity. Believing that police tend to arrest people with tattoos, he decided to "wait right there [until] they passed." He thought the deputies were conducting a parole sweep when they entered the carport and did not learn his arrest was for robbery until he was in the patrol car.
Crespin testified that he did not know Ulloa and that he did not even meet him until they were in a holding tank together, sometime after they were charged in this case. During cross-examination, Crespin admitted a prior residential burglary conviction. He denied that any of his tattoos, including his "SGV" tattoo, was gang related. His SGV tattoo stood for San Gabriel Valley, where he grew up. He denied knowing that Ulloa had an SGV tattoo.
Crespin called Elizabeth Zuniga to testify. Zuniga lived in an apartment from which she saw officers apprehend a man in her carport. That man was wearing a white shirt and gold chain. Many Hispanic men frequent the carport area. Crespin also called the landlady of the apartment building where Crespin lived in the summer of 2009. She testified that Crespin was no problem.
Crespin also called Juan Heredia as a witness. Heredia had filed a complaint against Camacho two or three years before Crespin's trial, after Camacho took $150 from Heredia during a traffic stop.
Crespin's investigator, Edward Acosta, a former police officer, testified that there were flaws in the investigation of Wasit's robbery. He explained that police are taught to read a written admonition to witnesses, and Geisler failed to do so in this case. He also cited the failure of deputies or detectives to fingerprint or photograph Wasit's wallet before removing it from the ivy where Salcido found it.
Acosta further testified regarding a comment that Geisler made during radio communications on the night of the robbery. After learning that Camacho and other deputies had not recovered the gun, Geisler said, "Okay. Maybe we have to go the old school way with these guys, if you know what I mean." Acosta explained that "old school way" can mean planting evidence. He further testified that it can mean searching for evidence without using technology, retracing the suspects' paths, and separating individuals in interview rooms to try to find the gun, as Geisler had explained.
Ulloa called Nelly Lugo as a witness. In July 2009, Lugo and Ulloa lived at 19214 Campanario Drive in Rowland Heights, with their two young daughters who were one year and three years old at the time of trial. She and Ulloa were close friends and were part of each other's families. Lugo was walking with Ulloa toward Yes Plaza on the evening of the robbery. When she had to leave, Ulloa continued walking there. Lugo had never seen Crespin with Ulloa.
Ulloa also called Dr. Robert Shomer, a psychologist with expertise in eyewitness identification. He testified that stress decreases the accuracy of eyewitness identifications. He explained that cross-racial identifications are less accurate than identifications where the witness and the suspects are the same race. Shomer opined that field showup identifications are inherently suggestive and the least accurate way of obtaining an identification.
The prosecution presented two rebuttal witnesses. Detective Daniel Duran testified that Ulloa had an SGV tattoo behind his right ear, in addition to that on his wrist. Crespin had an SGV tattoo on his abdomen. Duran also addressed Acosta's criticisms of the investigation.
Deputy Luis Mrad addressed Heredia's claim that Camacho stole money during a traffic stop. Mrad testified that he worked with Camacho a few years before trial. He recalled a complaint similar to that described by Heredia, who looked familiar to Mrad. Camacho did not pocket any money or laugh during the incident described in the complaint.
DISCUSSION
Appellant contends that the trial court abused its discretion and deprived him of due process by denying his requests to continue his trial. We disagree.
It is in the trial court's sound discretion to determine whether a continuance should be granted, but the court must not exercise its discretion to deprive the defendant of a reasonable opportunity to prepare. (People v. Jackson (2009) 45 Cal.4th 662, 677-678.) The trial court abuses its discretion if its ruling is unreasonable. (People v. Beames (2007) 40 Cal.4th 907, 920.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]" (Ibid.)
Section 1050, subdivision (b) provides that "[t]o continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served . . . at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary . . . ." A continuance shall not be granted absent good cause. (Id. at subd. (e).)
A court may condition the granting of the right of self-representation on defendant's waiver of a continuance. (People v. Valdez (2004) 32 Cal.4th 73, 102-103.) A "'defendant who chooses to represent himself assumes the responsibilities inherent in the role which he has undertaken,' and 'is not entitled to special privileges not given an attorney . . . .' [Citations.]" (People v. Barnum (2003) 29 Cal.4th 1210, 1221.)
". . . 'In determining whether a denial [of a request for continuance] was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request . . . .' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1011-1012.) The relevant circumstances and reasons follow.
On December 7, 2009, the parties appeared before Commissioner Wade Olsen, for a readiness hearing, just two days before their December 9 trial date. Crespin asked to represent himself. The commissioner informed him that trial would start on December 9, and would not be continued even if Crespin were representing himself. Crespin said he would not be ready. The commissioner observed that was the "problem with deciding to play the game of becoming your own lawyer two days before your trial." Crespin then declined to stipulate to have a commissioner hear his case. The commissioner transferred it to the courtroom of Judge Daniel Buckley.
During the December 7, 2009 proceedings before Judge Buckley, Crespin stated that he was not ready for trial. Judge Buckley explained that the trial would not be continued solely to accommodate Crespin's request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), and denied his request to continue the trial. Because Crespin had expressed some dissatisfaction with trial counsel, Judge Buckley conducted a Marsden hearing. He concluded that there was no basis under Marsden to dismiss counsel and asked Crespin whether he would be ready to start trial on December 9, if his Faretta petition were granted. Crespin wished to wait until December 9 to decide whether to proceed with his Faretta petition.
People v. Marsden (1970) 2 Cal.3d 118.
--------
Also on December 7, Crespin completed and signed a petition to proceed in propria persona (pro. per.), as well as an advisement and waiver of right to counsel. In each document, Crespin confirmed his understanding that "no continuance [would] be allowed without a showing of good cause, and that any such requests made just before trial [would] most likely be denied." He twice acknowledged that because of his custodial status, it would be difficult to contact witnesses and investigate his case; that he would have limited access to a telephone, which would make preparations for trial more difficult; and that he would be provided no more access to the law library than any other pro. per. inmate.
On December 9, 2009, in proceedings before Judge Buckley, Crespin indicated his understanding of advisements, warnings, and waivers, including the just-described advisements. Before the court ruled on the Faretta petition, Crespin's counsel, a deputy public defender, indicated that she would need a continuance because the prosecution had just informed her on December 7 that it would call a second deputy (Kim) to testify. Because Crespin's codefendant, Ulloa, refused to waive his speedy trial rights, Judge Buckley initially denied Crespin any continuance. Ulloa eventually agreed to a continuance, but only until early January 2010. Judge Buckley inquired whether Crespin would be ready for trial by early January. Crespin responded, "Yes sir, I'll be ready." Judge Buckley then granted Crespin's Faretta petition; appointed Richard Beeson, as his investigator; set the trial date for January 7, 2010; and transferred the case to another courtroom.
On January 5, 2010, Judge Mike Camacho conducted a readiness hearing. During the hearing, Crespin filed a written motion for a continuance which stated he was still "waiting on full discovery," and had not had adequate access to the law library. After determining that Crespin had not served the prosecution with his discovery motion, Judge Camacho denied his "motion on the date of trial essentially."
On January 7, 2010, Judge Camacho denied Crespin's request to reconsider his continuance motion, and sent the case to the courtroom of Judge Thomas C. Falls for jury trial. Crespin advised Judge Falls that he was still missing some discovery materials. Judge Falls spent considerable time discussing the discovery materials with Crespin, the prosecutor, and Ulloa's counsel, and allowed time for Crespin's investigator to arrive in court. Judge Falls also made arrangements for Crespin to use a courtroom computer to listen to police radio transmissions and ordered the prosecution to produce several photographs for Crespin. In addition, the judge granted Crespin's request to order the preparation of transcripts of police radio transmissions and his request for a continuance (albeit for less time than Crespin sought), and reset trial for January 25, 2010.
During a January 22, 2010 readiness hearing, Judge Camacho granted the prosecutor's request to trail the case for 15 days, while in trial on another matter. Without any objection from Crespin, Judge Camacho set a new trial date of February 1, 2010; granted Richard Beeson's request to be relieved as Crespin's investigator; and appointed Edward Acosta as his investigator. (Crespin had accused Beeson and a transcriber of tampering with a CD and a transcript.)
On January 28, 2010, the parties appeared before Judge Camacho. Crespin sought another continuance, among other reasons, to prepare a motion seeking the appointment of a police practices expert; locate an alibi witness; obtain photographs; and listen to the police radio transmission recording to verify the accuracy of the transcription. Investigator Acosta informed Judge Camacho that the radio transmission transcript was accurate. Judge Camacho determined that Crespin's request did not establish good cause for a continuance. He also observed that Acosta had stated that it would be difficult to locate Crespin's alibi witness with the limited information from Crespin (her first name and a general location). Judge Camacho authorized additional funds for Crespin and ordered the prosecution to produce booking photographs for him.
On February 1, 2010, Crespin again asked Judge Camacho for a continuance, noting that he had just received Acosta's investigation report, as well as some photographs from the prosecution. The court reviewed the investigation report in just five minutes, noted that Crespin could view the photographs in the evening, before testimony began, and stated he could call Acosta to testify about police practices. The court denied his continuance request and sent the case to another courtroom for trial.
Later on February 1, Crespin asked Judge Steven Blades for a continuance, based on his recent receipt of the investigator's report, and other factors. Judge Blades denied his continuance request but allowed Crespin to listen to the police radio transmission recording, with the transcript, to check for accuracy. The jury was sworn, and the first witness testified on February 3, 2011.
During trial, on February 9, 2010, Crespin complained that he had not had enough time to sit down with his investigator, and have him contact Juan Heredia and another Pitchess witness (Pitchess v. Superior Court (1974) 11 Cal.3d 531). The prosecutor explained that Heredia had been in court on December 9, 2009, and seemed cooperative to Crespin, and that the public defender investigator had been unable to locate the other Pitchess witness mentioned by Crespin. She further explained that in December, she had indicated to Crespin and his former counsel, a deputy public defender, that the prosecution might call deputy Kim as a rebuttal witness, and that Kim had apprehended Crespin with Camacho.
Before the noon recess on February 9, Judge Blades indicated that Acosta, Crespin's investigator, would have until 1:30 p.m., to bring Heredia to court. The court asked whether Crespin was seeking a continuance and a mistrial motion. Crespin decided to address that question after lunch. Acosta returned at 1:30 p.m., and stated that Heredia would be in court at 2:30 p.m. Crespin did not then seek a continuance. Heredia testified that day.
As the party challenging rulings on a continuance, Crespin bears the burden of establishing that the lower court rulings exceeded "the bounds of reason, all circumstances being considered." (People v. Beames, supra, 40 Cal.4th at p. 920.) Crespin has failed to meet that burden. To the contrary, each court that ruled on Crespin's requests exercised considerable care and accommodated many of his requests. For example, the courts made equipment available to him, appointed a second investigator when the first investigator asked to be relieved, and provided time for the investigator to locate a witness during trial.
We further observe that Crespin sought to represent himself just two days before trial, on December 7, 2009, and that on both December 7 and 9, he confirmed his understanding "that no continuance [would] be allowed without a showing of good cause, and that any such requests made just before trial [would] most likely be denied." He also then acknowledged that his custodial status would make preparation for trial more difficult; and that he would be provided no more access to the law library than any other pro. per. inmate. (Ibid.) After advising the court on December 9, that he would be ready for trial in early January 2010, Crespin sought multiple continuances.
Each court that denied Crespin's continuance requests did so because he failed to show good cause; and each such court acted within its discretion. It cannot be said that any denial of his continuance requests was so arbitrary as to deny him due process. (See People v. Smithey, supra, 20 Cal.4th at pp. 1011-1012.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
YEGAN, J.
Steven D. Blades, Judge
Thomas C. Falls, Judge
Mike Camacho, Judge
Superior Court County of Los Angeles
Carlo Andreani, 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, Paul Roadarmel, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.