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People v. Jim

California Court of Appeals, Third District, Sacramento
Mar 24, 2008
No. C054813 (Cal. Ct. App. Mar. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. LYLE PAUL JIM, Defendant and Appellant. C054813 California Court of Appeal, Third District, Sacramento March 24, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 06F03730

BUTZ, J.

A jury convicted defendant Lyle Paul Jim of robbery, attempted robbery, false imprisonment, convicted felon in possession of a firearm and two counts of assault with a firearm and found that he personally used and discharged a firearm.

Sentenced to state prison for 13 years, defendant appeals, contending (1) the trial court should have stricken Robert Zink’s testimony that he had prayed to God before he chose defendant’s photograph from a photographic lineup, such testimony violating Evidence Code section 789, or in the alternative, counsel rendered ineffective assistance in failing to object if such an objection would not have been futile; (2) the trial court abused its discretion in admitting the testimony of defendant’s girlfriend, Andrea Velasquez, concerning defendant’s prior criminal conduct in violation of sections 1101 and 352; (3) cumulative error requires reversal; (4) the double jeopardy clause prohibits his conviction of robbery and attempted robbery with personal gun use and two counts of assault with a firearm against the same victims; and (5) the order for AIDS testing should be stricken. We shall order the AIDS testing requirement stricken but otherwise affirm the judgment.

Undesignated statutory references are to the Evidence Code.

FACTUAL BACKGROUND

After 10:30 p.m. on April 10, 2006, while performing maintenance work at the Elk Grove Boulevard Round Table Pizza, Justin Armas and Robert Zink were confronted by a man later identified as defendant. Defendant wore a ski mask and a dark puffy jacket. He was described as six feet one or two inches tall and weighing 180 to 200 pounds. Defendant is about six feet tall and weighs about 190 to 195 pounds. Armas was power-washing the women’s restroom. The back door to the restaurant was open to provide access to the faucet hookup. Defendant pointed a revolver in Armas’s face and chest and demanded that he open the safe. Armas explained he was a member of the cleaning crew and unable to do so. Defendant left for a minute and then returned, and again pointed the gun in Armas’s face and chest and took Armas’s cell phone, an ATM card and $6. As defendant left, he ordered Armas to stay in the restroom.

Defendant proceeded to the kitchen where Zink was cleaning and pointed the revolver at him, demanding that he open the cash drawers and give defendant the money, telling Zink that it was not worth his life. Zink had a key to the drawers since he sometimes performed repairs and showed defendant that the drawers were empty. Defendant ordered Zink to open the safe in the office. Zink had a key to the office but not the combination to the safe. In the office, defendant insisted that Zink open the safe and Zink said he was unable to do so. Defendant pointed the gun at Zink, told him it was not worth his life and ordered him to his knees and to face the wall. Zink grabbed defendant’s hand with the gun in it and pushed defendant out of the office. During the struggle, defendant pointed the gun at Zink’s chest and Zink pushed the barrel away just as defendant fired the gun. The bullet grazed Zink’s ring finger, taking a bit of the finger tip off, and Zink either fell or dove onto a bench. Besides the injury to his fingertip, Zink suffered two herniated discs in his back. Defendant ran towards Armas who had walked in after the gun was fired. Defendant went out the back door, yelling something at Zink.

Zink called police and Armas or Zink closed the back door. Zink discovered a cell phone on a booth near where he had struggled with defendant but the phone did not belong to Armas. A bullet hole and slug were found in the wall next to the booth.

The cell phone left at the scene when turned on displayed “Paul’s wife” with the phone number. The phone belonged to Andrea Velasquez, defendant’s girlfriend, who referred to defendant as “Paul,” his middle name.

Velasquez was interviewed by the police on three occasions, in the morning on April 13, in the evening on April 13 and on April 17, 2006. During the first interview, Velasquez stated that Paul, whose last name she did not know, used to be her boyfriend but she had not seen or talked to him for a long time. She claimed that on the night of the robbery, she went home after work and left at 8:30 p.m. to go to the store. In front of her apartment, a tall Black man asked to borrow her cell phone. She gave him her phone and he then fled with it. She did not call the police but called the phone company the next day to report that her cell phone had been stolen.

The second police interview took place at the home belonging to Sylvia and Stephen Gutierrez, Velasquez’s aunt and uncle. Stephen had given Velasquez a ride home from work after the first interview and she had told him that detectives had been asking her about defendant and that she was upset and frightened. Stephen encouraged Velasquez to tell what she knew to the police. During the second interview, Velasquez admitted she had lied during the first interview because she was scared. The night of the robbery when she got home from work, defendant was playing video games. When she went to bed later that evening, defendant borrowed her cell phone and then left, leaving her and defendant’s friend “Juan” at the apartment. She went to sleep but when she awoke later she heard defendant tell Juan that something went wrong and that there had been a fight and a gunshot. The next morning, defendant told Velasquez that he had lost her cell phone and to report it stolen. When she asked what happened, he did not tell her but said he “might have hurt someone.” She had previously seen defendant with a revolver and told the detective that defendant had a black puffy jacket. When shown a videotape of the robbery at the Round Table, Velasquez identified the puffy jacket as defendant’s and stated that the way the robber “waddle[d]” was the way defendant walked. Velasquez admitted that she had been in a traffic accident in January 2006 and that defendant asked her to lie and say she had been driving when he had been. She also admitted having reported a rental car as stolen at defendant’s request.

During the third police interview, Velasquez claimed that defendant had called her at work after her second interview.

At trial, Velasquez testified that she lied during the second and third interviews. She denied telling the officers during the third interview that she had told defendant he had messed up and should turn himself in. She denied loaning her cell phone to defendant the night of the robbery. Similar to her first interview, she claimed she had given her cell phone to a dark-complected or Black man to use and he had taken it. She explained she lied during the second and third interviews because she was under a lot of stress; she was angry at defendant because he had been having an affair; she was pressured by her uncle; and she told the officer what he wanted to hear. She also was afraid because her cell phone had been found at the scene of the robbery and she implicated defendant to avoid being charged herself. She denied having previously seen defendant in possession of a gun, denied defendant had a puffy jacket and denied recognizing defendant’s walk on the videotape. She claimed she also lied about having previously lied on behalf of defendant with respect to the traffic accident and her rental car and about defendant telling her to report her cell phone as stolen. She claimed she lied about overhearing defendant talking to Juan about what had happened. She admitted having regularly visited defendant in jail since he was arrested.

According to the probation report, defendant is Native American.

Between 9:00 and 9:30 p.m. on the night of the robbery, Mark Colquitt called Velasquez on her cell phone. Records of Velasquez’s cell phone reflects that she called “Marc” at 9:23 p.m. the night of the robbery.

On April 13, 2006, an officer showed Zink a photographic lineup. Although not certain, Zink identified defendant’s photograph as the person who closely resembled the robber, based on his eyes and the bridge of his nose. Based on his photographic identification, Zink identified defendant at trial. When shown a photographic lineup, Armas chose a photo other than defendant’s but was uncertain of his choice.

On May 30, 2006, an officer interviewed defendant who denied knowing Velasquez.

The parties stipulated that defendant had been previously convicted of a felony.

DISCUSSION

I

Zink testified that defendant resembled the robber in the photographic lineup based on his eyes and the bridge of his nose. The prosecutor asked Zink why he thought defendant’s photograph was that of the robber. Zink responded, “Okay. I believe in prayering [sic] a lot. I prayered [sic] long and hard before I went down to the police department and looked at the pictures ‘cuz [sic] I didn’t want to send anybody who’s innocent to jail. I don’t want somebody to get the wrong--uh, I just don’t want somebody to end up in jail that doesn’t belong there. [¶] I prayered [sic] long and hard, and that was the picture that I looked at that struck me most at that time.” Defense counsel posed no objection to this testimony. On cross-examination, Zink confirmed that he had told the detective at the time of the lineup that defendant’s photograph was a definite possibility but that he was not sure.

Citing section 789, defendant contends that the court should have stricken Zink’s reference to his religious beliefs. Anticipating this court’s finding of forfeiture, defendant argues in the alternative that any objection would have been futile or that he received ineffective assistance of counsel.

Section 789 provides: “Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.”

Defendant did not object below to Zink’s testimony that he now challenges on appeal. Defendant has forfeited this claim by his attorney’s failure to object. (§ 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-22 (Demetrulias).) In any event, we disagree that Zink’s testimony inserted his religious beliefs and amounted to improper testimony under section 789. Zink did not testify that God or any other being to whom he prayed answered his prayers and told him to choose defendant’s photograph from the lineup. Assuming Zink’s testimony was objectionable, a timely objection and a request for a curative admonition would have cured any harm so an objection would not have been futile. An objection is a matter of trial tactics and defense counsel’s tactical decision not to object is accorded substantial deference. (People v. Majors (1998) 18 Cal.4th 385, 403; People v. Frierson (1979) 25 Cal.3d 142, 158.) To establish ineffective assistance of counsel, defendant must demonstrate that defense counsel lacked a rational, tactical purpose for not objecting. (Majors, supra, 18 Cal.4th at p. 403.)

Here, defense counsel’s strategy in choosing not to object to Zink’s prayer reference and focusing instead on Zink’s lack of a positive identification cannot be second-guessed on appeal. Zink was cross-examined about his photographic lineup identification and admitted that he had told the detective at the time that although defendant’s photograph was a definite possibility, Zink was not sure. Zink only identified defendant in court based on the photograph.

Further, defendant cannot demonstrate prejudice from counsel’s failure to object. Other evidence linked defendant to the offense, that is, his girlfriend’s cell phone was left at the scene and when interviewed, she stated defendant had taken it with him that evening, although she recanted at trial and gave different versions prior to trial. Defendant also denied knowing her, demonstrating a consciousness of guilt. Defendant has failed to demonstrate prejudice from counsel’s failure to object. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)

II

Defendant next challenges the trial court’s admission of Velasquez’s testimony that she had lied for defendant in the past, once with respect to a traffic accident when she falsely claimed she was driving when he had been driving, and a second time with respect to her rental car which defendant had been driving and she reported as stolen at defendant’s insistence. Defendant contends the evidence was improperly admitted as prior bad acts under sections 1101 and 352.

Prior to trial, the prosecutor sought to introduce Velasquez’s prior lies on behalf of defendant. Defense counsel objected to the rental car evidence, arguing that Velasquez did not know whether the car had been stolen. The trial court overruled the objection, noting the issue was Velasquez’s credibility, not her knowledge. With respect to the traffic offense, the trial court permitted its introduction. The trial court found Velasquez’s statements and lies went to her credibility.

Defendant has forfeited his claim. Defense counsel did not raise the specific objection defendant now raises on appeal. (Demetrulias, supra, 39 Cal.4th at pp. 20-22.)

In any event, the trial court properly admitted the evidence to attack Velasquez’s credibility at trial. (§§ 780, subd. (f), 1101, subd. (c); People v. Kennedy (2005) 36 Cal.4th 595, 634; People v. Freeman (1994) 8 Cal.4th 450, 494.) She recanted her statements given during her second and third interviews, linking defendant to the crime. She claimed she was under duress by her uncle and suffering from stress when she identified defendant in the videotape of the robbery and in relating his conversation with Juan. She testified at trial, somewhat consistent with her first statement to officers, that her cell phone had been stolen by a dark-complected or Black man the night of the robbery. She had previously stated a Black man had stolen her cell phone and she denied knowing defendant. The trial court properly admitted the evidence of Velasquez’s prior lies on behalf of defendant to attack her credibility at trial.

Defendant’s complaint that other evidence showed Velasquez was a liar and thus evidence of lies on his behalf was cumulative has not been preserved for review on appeal. No objection on this basis was raised below. In any event, the evidence of her prior lies on behalf of defendant was extremely probative. At trial, she recanted her statements during the second and third interviews with the officers. She had previously stated that she had reported her cell phone stolen at defendant’s insistence. Any error was harmless in that other evidence linked defendant to the crime. Zink identified defendant, although not with absolute certainty, and defendant left Velasquez’s cell phone at the scene.

III

Defendant’s claim of cumulative error fails since we have found no error in the admission of Velasquez’s prior lies on behalf of defendant and no prejudicial error resulting from Zink’s reference to having prayed before identifying defendant in the photo lineup.

IV

Defendant argues that he cannot be convicted of both robbing and attempting to rob with personal use of a gun and assault with a firearm upon the same victims. In making this argument, he relies upon the enhancements attached to the robbery and attempted robbery counts. He concedes that under the statutory elements test and without the enhancements, “assault with a firearm is not a lesser included offense to robbery, since a gun does not need to be used in the latter crime.”

Only the statutory elements test is applicable in deciding whether a defendant can be convicted of multiple charged crimes and under such test, enhancements are not considered. (People v. Izaguirre (2007) 42 Cal.4th 126, 134; People v. Sloan (2007) 42 Cal.4th 110, 118-120.) Defendant recognizes in his reply brief that his contention has been resolved contrary to his argument in his opening brief. Thus, assault with a firearm is not a necessarily included offense of robbery or attempted robbery and defendant was properly convicted of these crimes.

V

Finally, defendant contends and the Attorney General concedes that the trial court improperly ordered defendant to submit to AIDS testing pursuant to Penal Code section 1202.1 since none of defendant’s convictions fall within the offenses expressly listed in the statute. We will order the AIDS testing requirement stricken.

DISPOSITION

The judgment is modified, striking the trial court’s order (oral pronouncement at sentencing) that defendant submit to AIDS testing pursuant to Penal Code section 1202.1. This was error and said order is neither reflected in the abstract of judgment nor in the minute order; therefore, no amendment of either is required. As modified, the judgment is affirmed.

We concur: SCOTLAND, P.J., MORRISON, J.


Summaries of

People v. Jim

California Court of Appeals, Third District, Sacramento
Mar 24, 2008
No. C054813 (Cal. Ct. App. Mar. 24, 2008)
Case details for

People v. Jim

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LYLE PAUL JIM, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 24, 2008

Citations

No. C054813 (Cal. Ct. App. Mar. 24, 2008)