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People v. Cruz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 18, 2012
B231978 (Cal. Ct. App. Jan. 18, 2012)

Opinion

B231978

01-18-2012

THE PEOPLE, Plaintiff and Respondent, v. ROBERTO CRUZ et al., Defendants and Appellants.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Roberto Cruz. David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant Juan C. Sanchez.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA313955)

APPEALS from an order of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Roberto Cruz.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant Juan C. Sanchez.

No appearance for Plaintiff and Respondent.

A jury found defendants and appellants Roberto Cruz and Juan C. Sanchez guilty of the attempted murder of Miguel Rincon. On appeal, both Cruz and Sanchez contended that a remand was necessary because the trial court erred by employing the incorrect standard when it considered their motions for a new trial. This court agreed and, accordingly, reversed the judgment and remanded the matter "so that the trial court [could] consider defendants' motions for a new trial in accord with" Porter v. Superior Court (2009) 47 Cal.4th 125 (Porter). (See People v. Roberto Cruz et al. (July 12, 2010, B212118) [nonpub. opn.].)

The trial court held a hearing on the matter on March 15, 2011. After hearing argument and re-examining the evidence in light of Porter, the court concluded that, "[t]aken as a whole, . . . [t]he evidence adduced at trial ha[d] sufficient probative value to sustain the verdict beyond a reasonable doubt[.]" In view of its conclusion, the trial court reinstated the "conditionally reversed" judgment. We affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

The statement of facts is based on those stated in the court's opinion in People v. Roberto Cruz et al., supra, B212118.

a. The shooting.

Miguel Rincon joined the Marianna Maravilla gang when he was 11 years old. Rincon hung out with appellants, Roberto Cruz (Pollo) and Juan Sanchez (Little Puppet), who were also members of the gang. When Rincon was 15, he testified against Tweety, a fellow gang member, in a murder trial. Rincon's testimony took place over the course of several days beginning on October 18, 1999. Rincon testified that Tweety shot a member of the Stoners gang. After testifying, Rincon quit the gang and left the country for a few months. When he returned, he lived with his aunt in Rowland Heights. He returned to East Los Angeles in 2003.

Years later, on September 22, 2006, Deputy Sheriff Ken Kaufman had contact with Sanchez in the field. Sanchez was driving a black, primered Honda Civic with shattered front and rear windows and a dented hood. He admitted he was a gang member and that his moniker was Little Puppet.

Less than a month later, at about 8:55 p.m. on October 18, 2006, Rincon was in his car at the intersection of Hillview Avenue and Fourth Street in East Los Angeles. He was on his way to see Diana Ramos, the mother of his child. Rincon was talking on his cell phone, so he wasn't paying attention to a two-door, black, primered, hatchback Honda that was following him. Rincon tried not to let the car pass him, but it pulled up alongside his car. The car's front-seat passenger then shot at Rincon. A third person, whom Rincon could not identify, sat in the back. Some of the shooter's body hung out of the window. The driver stopped the car, preventing Rincon from going forward. Rincon caught a glimpse of the driver and wondered if he knew him. More shots were fired at Rincon from the passenger side of the car and Rincon could see that the passenger side door of the car was open. Hunched down and having been paralyzed from one of the gunshots fired at him, Rincon used his hand to put the car in reverse and to press on the gas pedal, causing his car to crash into a parked car.

Rincon screamed for Ramos, who heard him and came outside. He told her it looked like Little G's brother shot him. A few months before Rincon was shot, Little G's brother had called him a snitch. In addition, Little G's brother's girlfriend lived on the same street as Ramos and Little G's brother drove a black car that looked like the one involved in the shooting. However, Little G and his brother could not have been involved in the shooting: they had been arrested on October 5, 2006 and were in custody throughout the month of October. Rincon explained that he initially identified Little G's brother because he wasn't paying attention; he thought he was going to die. When Ramos asked who shot him, Rincon said it looked like Little G's brother's car and he thought it was him.

When asked at the preliminary hearing, " 'When you said you thought it was Little G or Little G's brother who shot you, you didn't know who shot you. Is that fair to say?' " Rincon answered, " 'Yes. Yes.' "

Little G and his brother were brought out at trial so that the jury could view them.

When Rincon woke up in the hospital, he was intubated, unable to speak, and permanently paralyzed. After his surgery, knowing that he would live, Rincon relived the shooting and realized who had really shot him. A few days after he was shot, Rincon had the tubes removed. He then told Detective Jorge Valdez that he had been shot by Cruz. He identified Cruz from a photographic six-pack on October 26, 2006. He did not, however, identify the driver at the same time, although he knew it was Sanchez. Having grown up with Sanchez, Rincon didn't want to believe his once good friend was capable of doing this to him. He finally identified Sanchez as the driver from a photographic six-pack on November 13, 2006. Before identifying Sanchez from the six-pack, Rincon did not say that the driver of the car was someone he had grown up with. When he identified Sanchez, he cried.

Detective Valdez recorded a portion of his interview with Rincon. He first talked to Rincon without recording their conversation. He then went back over what Rincon had told him, recording that part of the discussion.

Detective Valdez associated Sanchez with the black car and, based on that association, had placed him in the six-pack.

Rincon believed he had been shot because the Marianna Maravilla gang had "green lighted" him, or approved his murder. He knew he'd been green lighted because "they had paperwork on [him]. They had paperwork saying that [he] was the informant and they were trying to, like, pay [him] off. And then they had c[o]me looking for [him]. They wanted to take [him] on a ride and [he] didn't go outside that day."

When interviewed in December 2006, Sanchez said he knew Rincon, but that he did not know anything about the shooting. He knew that Rincon was a snitch, but he'd never seen any paperwork about it. Sanchez also said he knew Cruz but didn't really hang out with him, although he had last seen him in September 2006. He admitted having been a member of the Marianna Maravilla gang since he was 12 or 13 years old, that he was in the Santitos Clique and that his moniker was Little Puppet. When asked if he owned a black primered Honda Civic, Sanchez said he'd sold it four months earlier to Ecology Wrecking.

Bertha Vega was Sanchez's fiancée. She confirmed that Sanchez once owned a black, primer colored Honda. It didn't run, and they had to push it from one side of the street to the other on street sweeping days. Because the car wasn't working, she asked Sanchez to junk it. All of its windows were visibly cracked, and the hood was bent. Sanchez called Ecology Wrecking on October 16, two days before Rincon was shot. Ecology Wrecking recorded the date of sale as October 17 and their records indicated they picked up the car on October 20, 2006.

The gun used in the shooting was a nine-millimeter semiautomatic handgun. No firearms were recovered from either Cruz's or Sanchez's homes.

At trial, Rincon identified Cruz as the shooter and Sanchez as the driver. He was "[a] hundred percent" certain of his identifications.

b. Gang evidence.

The Marianna Maravilla gang has been in existence since the 1970's and has over 140 documented members and 4 cliques, including the Winitos, Cherries and Santitos. The 60 Freeway forms the gang's northern border, the westerly border is Eastern, the eastern border is at Atlantic, and the southern border is Whittier Boulevard. The gang uses " 'MMV' " for shorthand and the gang's symbols include 13, M and 22. The gang's primary activities are vandalism, possession for sale of narcotics, robberies, assaults, assault with a deadly weapon, drive-bys, and murder. Drive-bys are the gang's "more typical" activity.

Detective Valdez testified about two predicate crimes that qualify Marianna Maravilla as a criminal street gang within the meaning of the gang statute, Penal Code section 186.22.

In Detective Valdez's opinion, Cruz and Sanchez were Marianna Maravilla gang members. He based his opinion that Cruz was a member of the gang on Cruz's admission to him of membership, tattoos on Cruz's body (M, Marianna and Pollo), and his admission to another deputy, Deputy Duran, that he was a gang member. Cruz lived within the gang's territory, under one mile from where the shooting of Rincon occurred. Sanchez also admitted his gang affiliation to Detective Valdez. Sanchez said that his moniker was Little Puppet and that he belonged to the Santitos clique. He had been in the gang since he was 12 or 13 years old and he had gang-related tattoos. He lived just over a mile from where the shooting occurred.

Detective Valdez was asked: "[I]f a victim of an attempted murder tells you he was shot in a drive-by shooting by two individuals that were members of the Marianna Maravilla street gang and the reason why he was shot was because he had previously testified against a fellow gang member in a murder trial and was subsequently labeled as a snitch due to this testimony, do you have an opinion as to whether this alleged attempted murder was committed for the benefit of or at the direction of or in association with the Marianna Maravilla street gang?" The detective answered that in his opinion such a crime was committed for the benefit of, in furtherance of and at the direction of the gang. He added that the number one rule gang members are taught is not to snitch, especially on members of the same gang: "If you do that, you're going to face the consequences being death or you're going to be assaulted, you're not going to be part of that gang no more." The detective indicated that "these guys are hard-core, Marianna Maravilla is hard[-]core, they're so hard-core they're going to take care of their own gang members[.] [H]ell, they'll take care of us, too."

c. Evidence regarding firearms.

Months after Rincon was shot, on December 11, 2006, an officer spotted Cruz sitting in a parked car with a firearm visible on the floorboard. The firearm was loaded and Cruz said he had the gun for his protection because he'd been shot in the past. He'd bought the gun for $150 from "some Black guy in Los Angeles." Cruz wrote an admission that the gun was his, and he signed it " 'Pollo MMV' " —Marianna Maravilla. The gun, however, was not the gun used to shoot Rincon.

d. Defense evidence.

Diana Ramos had a child with Rincon. On October 18, 2006, she was putting her son to bed when she heard gunshots and a crash. Looking out her window, she saw Rincon's car and heard him scream her name. She ran to Rincon and asked who had done this to him. Rincon said it was Little Grimace. Ramos told Rincon that was impossible, because Little Grimace was in jail. The next time she saw Rincon, she asked again who had shot him, and he again replied, " 'Little Grimace.' " When Ramos again told Rincon that Little Grimace was in jail, he said it was Little Grimace's brother. Ramos told Rincon that he too was in jail. According to Ramos, Rincon also wasn't sure if the car was dark gray, blue or black.

While en route to the hospital after being shot, Rincon told Deputy Xochilt Rosas that he believed Little G's brother shot him. He also said the car was black. Later, at the hospital, Rincon told the deputy the car was dark, primered and a two-door hatchback.

Hilda Padilla was Cruz's girlfriend and the mother of his daughter. She indicated that the night that Rincon was shot, Cruz was at home.

Sanchez's aunt, Maricela Sanchez, testified that on the day of the shooting Sanchez came to her house in Pomona at about 2:00 o'clock in the afternoon and stayed until about 8:30 p.m. They had been celebrating Maricela's daughter's birthday. Sanchez left with his brother in a green truck. Sanchez's car had stopped running in September 2006.

Kathy Pezdek is an experimental psychologist who researches memory and factors that affect eyewitness identification. Memory doesn't work like a video camera. Instead, memory is a three-stage process of input, storage and output. Input is how much information goes into our heads. What we store drops off over weeks and months. Output is the retrieval stage. Factors that affect memory include: (1) Exposure time: the less time we have to look at someone the less likely we are able to identify them, although a person's general characteristics (e.g., gender, race) can be remembered after even a brief look. During a stressful event, exposure time tends to be exaggerated by a factor of 2.5. (2) Lighting and distance. (3) Distractions or what else is going on during the time of exposure; for example, a witness looking at several things cannot see the detail of a person, gun and car at the same time. (4) Weapon focus: weapons are the most salient form of distraction. (5) Cross-race effect: people are more accurate identifying people of the same race. (6) Familiarity: people are more accurate identifying people they know. When we see someone familiar, an alarm goes off in our head even if we can't immediately identify them. (7) Memory doesn't increase clarity over time and stress hampers perception. Witnesses can, however, become more confident in their identification, even though memory degrades over time. There is a weak correlation between accuracy and confidence. If you expect to see a specific person, you fill in the details of that person.

2. Procedural history.

a. The trial and initial appeal.

On February 29, 2008, a jury found Cruz guilty of count 1, the attempted murder of Rincon (Pen. Code, §§ 187, subd. (a) & 664) and found true allegations he committed the crime for the benefit of and in association with a criminal street gang (§ 186.22, subd. (b)(1)), used a gun (§ 12022.53, subd. (d)), and personally inflicted great bodily injury (§ 12022.7, subd. (b)). The jury also found Cruz guilty of count 2, unlawfully causing a firearm to be carried/concealed in a vehicle (§ 12025, subd. (a)(3)), and count 3, carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)).

All further statutory references are to the Penal Code unless otherwise indicated.

The jury found Sanchez guilty of the attempted murder of Rincon (§§ 187, subd. (a) & 664) and found true the gang (§ 186.22, subd. (b)(1)) and gun use (§ 12022.53, subds. (d), (e)), allegations.

Before sentencing, both Sanchez and Cruz filed motions for a new trial pursuant to section 1181. At the hearing on the motion, there was a long discussion regarding the correct standard of review. Defense counsel for Cruz argued that the trial court had to independently review the evidence and determine whether there was a reasonable doubt Cruz was guilty; the trial court was to, in effect, act as the 13th juror. The trial court disagreed, indicating that it believed it was to determine "whether or not the evidence [was] credible and whether it was probative." In other words, the trial court believed it was to "see that the jury intelligently and justly performed its duty and, in the exercise of proper legal discretion, to determine whether there [was] sufficient credible evidence to sustain the verdict." The trial court indicated that it "does not ask itself whether it believes that the defendant is guilty beyond a reasonable doubt." After indicating that the "appropriate question[s] to be answered [are] whether or not Rincon's explanation viewed independently is credible and probative to sustain the verdict[,]" the trial court denied Cruz's and Sanchez's motions for a new trial.

On November 12, 2008, after denying Sanchez's and Cruz's motions for a new trial, the trial court sentenced each of the defendants. The court sentenced Sanchez to 7 years as to count 1, then doubled the term to 14 years pursuant to the Three Strikes law. In addition, the court imposed 5 years for a prior conviction and 25 years for the firearm allegation made under section 12022.53, subdivision (e)(1). The court sentenced Cruz to 7 years for his conviction of count 1 plus 25 years for the firearm allegation made pursuant to section 12022.53, subdivision (d). With regard to counts 2 and 3, the trial court sentenced Cruz to midterms of 2 years each, then ordered the sentence on count 2 to be served concurrently to the other terms imposed. The trial court stayed the sentence on count 3 pursuant to section 654.

Cruz and Sanchez appealed. After reviewing the record, this court, relying on Porter v. Superior Court, supra, 47 Cal.4th at pages 132 to 133, determined that the trial court "extends no evidentiary deference in ruling on a section 1181(6) motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' " If the trial court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is contrary to the evidence. "In doing so, the judge acts as a 13th juror who is a 'holdout' for acquittal. Thus, the grant of a section 1181(6) motion is the equivalent of a mistrial caused by a hung jury."

In view of the trial court's failure to apply the proper standard of review, this court, in an opinion filed on July 12, 2010, determined that "remand [was] necessary so that the trial court [could] independently review the evidence in accord with the standard in Porter." (People v. Roberto Cruz et al., supra, B212118.) This court then considered the remainder of Cruz's and Sanchez's contentions. It was indicated that, although we were "remanding the matter so the trial court [could] rehear the motions for new trial, we [would] still address the remaining arguments because, if they were meritorious, then remand would not be required." However, Cruz's and Sanchez's other asserted errors were found to be harmless or without merit. Thus, this court "reversed and remanded [the matter] so that the trial court [could] consider defendants' motions for a new trial in accord with Porter, supra, 47 Cal.4th 125. The judgment [was] otherwise affirmed."

This court determined that the evidence was sufficient to support the jury's finding Cruz was the shooter during the October 18, 2006 incident; that the evidence was sufficient to support the jury's finding Cruz attempted to murder Rincon in association with or for the specific purpose of promoting a criminal street gang; that the trial court's decision to try in the same proceedings the count alleging the attempted murder of Rincon the charges alleging that Cruz possessed a concealed weapon in a vehicle on December 11, 2006 and possessed an unregistered firearm on December 11, 2006 was harmless; that Cruz's assertion the trial court erred when it refused to hold a hearing regarding the admissibility of his polygraph test and, instead, decided that the test was inadmissible was without merit; and that, although the prosecutor committed misconduct during her closing argument by referring to the "four stages of grieving," her improper assertions did not require reversal of the judgment as they did not "constitute a pattern of egregious conduct that rendered the trial fundamentally unfair," and that cumulative error did not require reversal.
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b. The post-judgment hearing on the motion for a new trial.

At proceedings held on March 15, 2011, the trial court, after indicating that it had considered the supplemental briefing and oral argument presented by the parties, re-considered Cruz's and Sanchez's motions for a new trial in view of the Supreme Court's opinion in Porter. The trial court initially indicated that, although earlier cases had not articulated this standard, "a fair reading of Porter [indicated] that the phrase, quote, 'in effect acting as a 13th juror,' close quote . . . [meant that] the trial judge becomes the 13th juror and, if so, must use the standard beyond a reasonable doubt that other jurors [are] bound to use."

The court then considered the testimony given at trial. It first noted that: "Mr. Rincon was shot, and when he was shot, the bullet penetrated his body, went through his lung, and severed his spine, paralyzing him from the waist down, that he was having trouble breathing and that he was[,] in his words, something to the effect [of] 'my bottom part fell off[.]' " The trial court noted that Rincon had recognized "that he had no control over the [lower] part of his body" and "[t]hat's what he was going through when" he identified Little G and Little G's brother as the individuals responsible for the shooting. The court indicated that, a few days later, when he identified Cruz, Rincon had undergone surgery, knew that he was going to live and had been able to take the time to consider the identity of the shooter. The trial court quoted Rincon's testimony when, at trial, he explained the discrepancies in his identifications. Rincon testified: " 'When I got shot, when I was on the floor, they were asking me questions, asking me questions, "Like you're going to be all right." And then when the police officers go[t] there, that's when she said, "Who did this?" And I wasn't really paying attention. I thought I was going to die. So I just kept asking for the ambulance, "When is the ambulance going to be here?" And she said, "Well, who did this?" And I told her, ". . . It looked like Little G—Little G's brother's car. I think it was him." And then that's when I took off and that's—after that, that's all I remember. Until when I got to the—when I woke up in the hospital[.]' " Rincon indicated that a few days later, " '[a]fter, like, having my—just going back and being by myself and going back to, like, what happened that day and, you know, looking to the left was seeing like exactly who had shot me and realizing that I knew the people that shot me and, you know, having a better view at what really happened, I, like, in a rush—because when I was on the floor, it's just—I wasn't thinking about who shot me or what happened. I just wanted to get to the hospital as quick as I can, and that's what I wanted[.]' " Rincon continued, " 'I'm reliving what happened. Knowing I'm alive now and I have more time now that I can think what happened, you know, and in seeing what happened, the scene or how everything happened, you know, and realizing that the car that actually shot me, I had seen it, I had seen it, like, a few blocks before, you know, and actually putting, like, everything together[.]' " The trial court indicated that, at that point, Rincon viewed a "six-pack" and identified Cruz as the man who shot him.

The trial court noted that Rincon identified Sanchez "later in a separate six-pack identification procedure." With regard to that identification, the trial court indicated that Rincon had stated: " 'And I just thought he wouldn't do something like that, you know. I thought that he wouldn't, you know, he wouldn't be capable of doing something like that to me. I just came to a point, well, if the car stopped, they know what they were doing, you know. My brother had said, "Make sure." We just grew up together. I just couldn't believe it. So, like, talking to my brother, my brother had told me to make sure, and I said, "No. I'm sure, you know." ' "

The trial court next referred to CALCRIM No. 3.01, which indicates that " '[t]he testimony of only one witness can prove any fact,' " but " '[b]efore [one can] conclude that the testimony of one witness proves a fact, [he or she] should carefully review all the evidence.' " After noting that Rincon's testimony could support a finding of guilt beyond a reasonable doubt, the trial court reviewed other evidence presented at trial. With regard to the testimony of psychologist, Kathy Pezdek, the trial court was of the opinion that it related primarily to "situations involving stranger identification." The court did not find her testimony "on point in analyzing this case, a situation where the victim identified someone whom he ha[d] known from the past." The court indicated that there were three possible scenarios: (1) Rincon made a "true identification;" (2) Rincon lied "because he ha[d] a motive to frame defendant[s] Cruz and Sanchez;" or (3) Rincon "thinks he's making a true identification but is mistaken."

The court gave the second possibility, that Rincon was lying, short shrift. The court noted that "Rincon's credibility was not attacked from the standpoint of having a motive to frame either . . . Cruz or Sanchez. There was simply no evidence that Rincon had an axe to grind [with either man]." The court indicated that the defendants' attack on Rincon's testimony was directed at "items 1 and 3, which is to say, on the accuracy of the witness' recollection [and] perception." "Framed more succinctly, the argument [was,] if Cruz was the shooter and Sanchez was the driver, Rincon would have identified [them] at the time of the shooting." The trial court, however, found Rincon to have been a credible witness. The court noted that he was neither "shifty" nor "evasive." The court saw "nothing in his pattern of speech, body[] language, or general mannerism to indicate he was not being truthful." "From this standpoint, Mr. Rincon more than[,] in [the court's] opinion[,] passed the test. [The court] was not persuaded by sympathy. Because as a trial judge, sitting over many, many cases, [the court had] learned to [distinguish] sympathy from analyzing the demeanor and spoken words of the witnesses who were testifying. . . . [Rincon] was, of course, vigorously cross-examined by both defense counsel, but [the court's] recollection [was] that Rincon never appeared to be trying to hide or to fabricate his testimony . . . ."

With regard to item 3, the trial court indicated that it was necessary to "analyze . . . [the] reason why [Rincon] did not identify Cruz initially." The court continued: "Counsel argues that Mr. Rincon's explanation is absurd and nonsensical. He indicates, quote, 'It may very well be that, in spite of the absurdity of this explanation, Rincon has convinced himself of its truth and, therefore, would not appear to [have] fabricate[d] his testimony. However, the fact that Rincon believes his explanation is no more binding on this court than is the fact that the jury believed it. . . . [¶] As [the court] noted in [its] former ruling, Mr. Rincon was not verbally articulate. . . . His reasons expressed are inconsistent with his testimony" and "he formed ideas and stated concepts clumsily." However, the trial court noted that "Rincon gave an explanation for the discrepancy [in his identifications]. Evidence showed he was severely injured in the shooting. It is not incredible to think that someone in Rincon's shoes at the time of the shooting could not be most concerned about who shot him but, rather, on whether or not he will live. . . . Using common sense, [the court found] that explanation credible."

The trial court next addressed the testimony of Diana Ramos. The court indicated that "[t]he linchpin in the defendant's attack of Rincon's identification[s] came through" her testimony. However, "[s]omething about her troubled" the court. She "seemed to be antagonistic in some manner [to] Mr. Rincon" and "somewhat eager to help the defendants . . . . She's the one who said that she told Mr. Rincon that Little G's brother and Little G were in custody. [¶] Rincon never stated he identified Cruz because he was told Little G's brother was incarcerated. That means either he is lying or Miss Ramos is lying. Based on what [he] saw, [the trial court decided] to disregard Miss Ramos's testimony as being [un]reliable."

The trial court "found in the end [that] Mr. Rincon [was] a credible witness." The court determined his explanation was "believable and of convincing force. He [knew] Mr. Cruz and Mr. Sanchez because of their gang affiliation . . . . [He was] not identifying people he [did] not know." The trial court chose to believe Rincon and rejected the contention that he thought he was making a true identification but was mistaken. "Furthermore, [the court recognized that] Mr. Rincon's identification [was] not absolutely without corroboration . . . . Mr. Cruz and Mr. Sanchez are fellow gang members and Mr. Sanchez had access to a car similar to the one described by Rincon . . . ."

The trial court concluded that, taken as a whole, the evidence adduced at trial was sufficient to "sustain the verdict beyond a reasonable doubt." Accordingly, the trial court denied Cruz's and Sanchez's motion for a new trial and ordered reinstated the judgment which had been conditionally reversed.

On March 25, 2011, both Cruz and Sanchez filed timely notices of appeal from the trial court's order.

CONTENTIONS

After examination of the record, counsel for Cruz and Sanchez filed opening briefs which raised no issues and requested this court to conduct an independent review of the record.

By notice filed September 14, 2011, the clerk of this court advised Cruz and Sanchez to submit within 30 days any contentions, grounds of appeal or arguments they wished this court to consider. No response has been received to date.

REVIEW ON APPPEAL

We have examined the entire record and are satisfied counsel have complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The order reinstating the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.


Summaries of

People v. Cruz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 18, 2012
B231978 (Cal. Ct. App. Jan. 18, 2012)
Case details for

People v. Cruz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERTO CRUZ et al., Defendants…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 18, 2012

Citations

B231978 (Cal. Ct. App. Jan. 18, 2012)