Opinion
G043424 Super. Ct. No. 08SF1052
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JASON ARTEE LATTIER, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Andrew Mestman and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Andrew Mestman and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jason Artee Lattier was sentenced to 17 years eight months in prison as a result of his convictions for jewelry store robberies with a firearm. He contends he was denied a fair trial by prosecutorial misconduct, and that the court erred in setting the amount of restitution. We affirm.
I
FACTS
Defendant was charged with two counts of robbery (Pen. Code, § 211; all further undesignated statutory references are to the Penal Code) and a burglary (§ 459) on October 5, 2008. The counts arose out of a jewelry store robbery at Traditional Jewelers, located in the Ritz-Carlton Hotel in Dana Point. Defendant was alleged to have used a firearm (12022.53, subd. (b)) and to have caused a loss in excess of $200,000 (§ 12022.6, subd. (a)(2) in the commission of those offenses. Defendant was also charged with two counts of conspiracy to commit robbery (§§ 182, subd. (a)(1), 211), and one count each of felon in possession of a firearm (§ 12021, subd. (a)(1)), burglary (§ 459), and grand theft (§ 487, subd. (a)). He pled guilty to all the offenses except those involving the Traditional Jewelers incident. As to those offenses, the only issue he contested was whether the item he used was a real firearm.
Joan Palmer was a sales associate at the Traditional Jewelers Store in the Ritz-Carlton Hotel in October 2008. On October 5, 2008, at approximately 12:45 p.m., while Palmer and another sales associate, Terri Vasquez, were working in the store, two men entered together. Defendant, who was wearing gloves, said, "Ladies, . . . this is a robbery. . . . This is a gun. . . . I will shoot you if you do not do exactly as you're told. Do not look at me, and if you don't do what I tell you I will not hesitate to kill you." The other man stopped at the door and stood there, watching. When defendant pulled the gun out, he put a clip in it and did not point it directly at the ladies, but pointed it "kind of to the side." Palmer heard a click when the clip was put into the gun. Defendant later pointed the weapon at Palmer's head.
Defendant told the women, "Just give me your largest stones." Palmer and Vasquez gave defendant 22 pieces of jewelry that cost the jewelry store $100,875.66 and had a market resale value of $208,365. Defendant placed the pieces into a black velvet bag. The man at the door said to hurry. Defendant told Palmer, "That's enough," and that she had done a "good job." He turned and left with the man who had been standing by the door. Palmer then called 911. The robbery was recorded by the security surveillance camera.
A chef at the hotel was on his break when he saw two suspects jump down two flights of stairs and over the stair rails in the employee parking structure. The suspects jumped into a dark blue Mustang convertible with a white top. Each suspect was described as Black and six feet tall. The chef watched the security video of the loading dock area and Mustang. He told police the video accurately showed the Mustang.
Investigator Theodore Harris, of the Orange County Sheriff's Department, watched the surveillance video of the employee parking structure. About the time of the robbery, a blue and white Mustang convertible drove down the employee ramp and parked on the side or the alley by the parking structure, a couple hundred feet from the exit. Harris said it would take less than a minute for someone to run from the jewelry store to the Mustang.
Heidi Shaffer, a sales operations manager for Ford Motor Company was shown a copy of a surveillance video. She could tell the Mustang in the video was either a 2008 or 2009 model. The blue Mustang had a white cloth top and that combination was not available to retail buyers. It was sold only to Hertz or another car rental company. She ran a VIN check on cars Ford sold of that make, model, and color combination. There were approximately 150 on the road nationwide. Most were sold in California. Shaffer gave Harris the VIN numbers for the Mustangs. Approximately 80 were currently in California. Each was owned by Hertz or Avis car rental companies. Jeffri Roberts rented one such Mustang from the John Wayne Airport on October 2, 2008, and returned it at 9:19 p.m. on the night of the robbery.
Harris obtained Roberts's Department of Motor Vehicles photograph and identified Roberts as the robber who stood by the door. Roberts's cell phone records indicate a text was sent from his phone about five minutes after the robbery in a location about five miles from the scene of the robbery.
On December 22, 2008, members of the Orange County Sheriff's Department conducted a surveillance of Roberts and defendant. At a mall in Carlsbad, California, Andrade, a member of the surveillance team saw Roberts and defendant drive into the parking lot and park approximately 30 to 50 feet from him Andrade saw Roberts, the driver, retrieve something from the backseat of the vehicle Roberts and defendant got out of the car. Each wore a hooded sweatshirt. Roberts opened the trunk and took out what appeared to be a leather satchel that he then placed over his shoulder. Defendant looked left and right and then reached into the trunk and pulled out a dark semiautomatic handgun, which he placed in the front of his waistband. Defendant and Roberts went into the mall. As they were going down an escalator, Sergeant Heaney saw the taller of the two look over his shoulder toward a jewelry store.
Investigator Harris watched the video of the robbery. He said defendant took the weapon out from his right pocket and pulled the magazine for the weapon from his left pocket. He loaded the magazine into the semiautomatic and then put his finger alongside the weapon, rather than on the trigger. According to Harris, that is how sheriff deputies are trained so as to avoid an accidental discharge. Harris said the semiautomatic looked like a Walther PPK or a Sig Sauer. He said the firearm was either a .380-caliber, a nine-millimeter, or .40-caliber semiautomatic firearm.
In concluding the firearm was real, Harris pointed out that the black weapon had a silver or gray ejection port. He claimed all airsoft guns are plastic and none have an ejection port because there is nothing to eject. Harris has never seen a BB gun with an ejection port along and a bottom loading clip. He said most imitation guns are made from molded plastic. Even those that are molded to have what appears to be an ejection port, the port is the same color as the gun because it is molded. He added that there are some BB guns that have the CO cartridge and BB's in a magazine that loads from the bottom, but that when the magazine is loaded it makes "a little pop" when the CO2. cartridge is punctured, and they do not have silver barrels.
Defense
Steven Strong had been a police officer for more than 20 years in the Los Angeles Police Department. Prior to that, he served in the Marine Corps where he received training in firing certain firearms, including a .45-caliber pistol. He became a private investigator in 1995. He was retained by the defense to determine if he could form an opinion as to whether the gun in the robbery was real just from watching the video of the robbery. He watched the video and concluded there was no way to tell whether the gun brandished was real or not.
In his research, Strong found in some cases that it was very difficult to tell the difference between a replica and the real thing. He found a BB gun made out of metal, with a clip, as well as a replica made by Sig Sauer that comes in a nine-millimeter, .40-caliber, and .45-caliber models. He also found a BB gun made by Walther. It was metal, but Strong could not be sure it had a clip. It looked just like the real thing made by Walther. Colt makes a BB gun that resembles the Colt .45-caliber semiautomatic. The Colt is blue steel, could be black, and has a silver nonfunctioning ejection port. He found a number of other BB guns that look like the real thing. Some of the BB guns have small, skinny clips, and other have clips that appear real.
II
DISCUSSION
A. Prosecutorial Misconduct
Defendant contends misconduct by the prosecutor denied him a fair trial and requires reversal. Specifically, he argues the prosecutor "engaged in a pattern of misconduct when she repeatedly elicited testimony ruled inadmissible by the trial court as irrelevant or unduly prejudicial." Included under the rubric of prosecutorial misconduct, defendant includes a comment made by a prosecution witness while being cross-examined.
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]' [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.)
Defendant claims three instances of prosecutorial misconduct. The first and second instances had to do with testimony regarding the incident at the mall in Carlsbad.
As stated above, defendant pled guilty to all counts other than those relating to the Traditional Jewelry robberies and burglary. One of the offenses to which he pled guilty was a conspiracy to commit robbery (count four). Alleged overt acts included defendant and Roberts going to the mall in Carlsbad on December 22, 2008. Defense counsel sought to exclude any evidence relating to the crimes to which defendant pled guilty.
Notwithstanding the guilty plea to count four, the prosecutor sought to introduce evidence of defendant's actions at the mall on December 22, 2008. In pretrial motions, she proffered that there was evidence defendant and Roberts went to the mall on "several dates" and cased jewelry stores there, although on one occasion they did not actually go into the store because customers were inside. She added that on one occasion, defendant was "seen placing a handgun into his waistband." The prosecutor stated she did not know whether the gun looked like a revolver or a semiautomatic, and would have to inquire of her officers. The judge informed the prosecutor that if there was any chance the gun observed in December was the same gun used on October 5, the evidence would be admissible.
The next day Sergeant Andrade testified in an Evidence Code section 402 hearing. He said that while he was surveilling Roberts and defendant at the mall, he saw defendant pull what appeared to be a handgun from the trunk of their car and place it in his waistband. Roberts looked to his left and right a couple of times, from which Andrade inferred Roberts was making sure no one was watching. Andrade testified the weapon appeared to be a six-inch black semiautomatic, either a nine-millimeter or .40-caliber, similar to the weapon used on October 5. The court found the evidence relevant, because the weapon could have been the same weapon used in the jewelry store robbery. The court concluded that the only relevant evidence of events on December 22 related to the firearm due to the fact that the only genuinely contested issue in the trial was whether the weapon used in the Traditional Jewelers robberies was real. The court stated it expected the evidence relating to December 22 would be presented "essentially in the same fashion that we heard today." "So if we pick up with Roberts and Lattier in and about the car as observed by Andrade, the weapon sequence where he supposedly draws the weapon out of the trunk, puts it in his waistband, and I think it's also appropriate to allow the People to say when they went in the mall they were seen in the vicinity of jewelry stores. But what happens after they get back in the car . . . I think is not admissible. [¶] So the final ruling, so we are perfectly clear, from the time the two of them are observed at or near the car just preceding the weapon up through the time that they're seen leaving the mall, that's the chronology that we're talking about."
At trial, Sergeant Andrade testified he was part of a surveillance team on December 22, and saw defendant and Roberts's vehicle park close to his vehicle in the parking lot of the mall in Carlsbad, but then back up and then drive to another location in the parking lot. The court chided the prosecutor for introducing this evidence of events prior to time when the vehicle stopped and defendant was observed at the trunk of the car.
The trial court's ruling about where Andrade's testimony would begin was very clear. It was to start just prior to Roberts and defendant going to the trunk of their car. It did not anticipate Andrade testifying about Roberts backing the car up and driving to another location in the parking lot. However, any misconduct would have been harmless. The jury already knew Roberts and defendant were under surveillance. That being the case, it had to know they had been followed to the mall. The fact that they drove from one location in the parking lot to another location in the same parking lot was not inflammatory or prejudicial.
Questioning of Andrade resumed and after he testified to seeing defendant and Roberts get out of the car and go to the trunk where defendant reached into trunk, pulled out a dark semiautomatic handgun, and place it in his waistband, the prosecutor asked Andrade if he could determine the caliber of the semiautomatic. Andrade responded, "That I couldn't tell you, ma'am." The prosecutor then asked the same question three different ways. Defense objected and the court held a sidebar.
The prosecutor did not act improperly in asking Andrade about the caliber of the weapon after Andrade initially testified he could not tell the caliber or size of the semiautomatic he saw defendant put in his waistband. As stated above, Andrade testified in the pretrial evidentiary hearing that the weapon was either a nine-millimeter or .40-caliber, similar to the firearm used in the October 5 robberies. The prosecutor was entitled to attempt to get Andrade to admit his earlier testimony, as the trial court held when it permitted the prosecutor to inquire after the sidebar. (Evid. Code, §§ 770, 1235.)
The second alleged misconduct involved Sergeant Heaney's testimony. Heaney testified about the December 22 surveillance inside the mall. He saw Roberts and defendant descend an escalator and defendant look over his shoulder to the right for two or three seconds, toward a jewelry store named Romano's. Roberts kept looking straight ahead. When they got to the bottom of the escalator they made a left turn and Heaney lost sight of them. He never saw them enter any store in the mall.
At another sidebar the court stated that it understood the People's theory of relevance, but that "if this is as good as it gets for the People, we are going to end this inquiry fairly soon." The prosecutor said Heaney was the only witness she intended to have testify to actions inside the mall. The court denied the prosecutor's request to ask Heaney about the clothing he was wearing or how busy the mall was, finding the evidence irrelevant.
Defendant contends the introduction of Heaney's testimony constituted misconduct as the introduction of that evidence disregarded the court's earlier ruling and portrayed defendant "as a serious criminal who was casing a jewelry store with the intent to rob it." This ignores the fact that the court had ruled Heaney would be permitted to testify to his observations of defendant and Roberts inside the mall, albeit the court was under the impression they went inside the mall after the incident at the trunk and "were seen in the vicinity of jewelry stores." It is questionable whether the court would have made the same ruling had it known the evidence consisted merely of defendant and Roberts descending the escalator and defendant looking over his shoulder in the direction of a jewelry store for a couple of seconds. But then again, the evidence that was introduced was much less likely to adversely affect defendant's position than had Heaney or some other witness placed defendant in the vicinity of a jewelry store.
We fail to see how this evidence, even taken in conjunction with Andrade's testimony about Roberts and defendant's car changing locations in the parking lot "emphasized the manpower expended by law enforcement in surveilling and ultimately arresting [defendant] and Roberts," as claimed by defendant. Andrade testified he notified the members of his team that defendant was armed, so even if Heaney had not testified, the jury knew there were a number of deputies on the surveillance team. Heaney's testimony added nothing to that. Accordingly, we find no prejudice resulted from Heaney's testimony.
Lastly, the following took place during the cross-examination of Detective Harris:
"Q. You're completely objective; right?
"A. Well, I've done a lot more investigation than anybody else in here, so I have a lot more facts that cannot be brought out, yes."
The court immediately instructed the jury: "Well, the jury is instructed to disregard that remark. It's stricken completely. It's nonresponsive. There is no evidence that wasn't brought out before the jury that I'm aware of. To suggest so is improper."
Even were we to consider Harris's statement as misconduct, it was not elicited by the prosecutor. Neither is there any indication the prosecutor had any reason to believe Harris would make the statement, which is not to say the statement was not completely unprofessional and improper as any experienced police officer would have known. The court's quick action in declaring the statement to be improper in its immediate charge to the jury neutralized any adverse effect it may otherwise have had or been intended to have. We presume the jury followed the court's instruction (People v. Horton (1995) 11 Cal.4th 1068, 1121), especially when the court plainly stated Harris's action was improper.
Without concluding the alleged instances of prosecutorial misconduct were actually misconduct, we conclude they were harmless under any standard. Because we have addressed defendant's prosecutorial misconduct arguments, there is no need to address his alternative argument counsel was ineffective in failing to preserve the issue for appeal. B. Restitution
The information alleged defendant "intentionally took, damaged, and destroyed property valued in excess of . . . $200,000" in committing the robberies and burglary tried to the jury. The jury found the allegation true. Defendant does not challenge that finding, but argues the court erred in ordering him to pay $208,365 restitution to the owner of the Traditional Jewelers, because that figure is based upon the retail value of the property and he should have only been ordered to pay the replacement value of the property, $100,875.66.
Additionally, one of the counts to which defendant pled guilty involved a grand theft from Ben Bridge Jewelers. Two loose diamonds were stolen. According to the prosecutor, one was valued at $17,000 and the other at $13,000. The court ordered defendant to pay $30,000 in restitution to Ben Bridge Jewelers pursuant to section 1202.4, subdivision (f)(3).
We review a trial court's restitution order for an abuse of discretion. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1173.) "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court. [Citation.]" (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
Article I, section 28, subdivision (b) was added to the California Constitution in 1982 with the passage of Proposition 8. That constitutional provision presently provides in pertinent part: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the for losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) It further provides: "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Cal. Const., art. I, § 28, subd. (b)(13)(B).)
This right is implemented by section 1202.4. (People v. Semaan (2007) 42 Cal.4th 79, 86.) Subdivision (f) of that section requires restitution in "a dollar amount that is sufficient to fully reimburse the victim or victims for every economic loss incurred as the result of the defendant's criminal conduct . . . ." (§ 1202.4, subd. (f)(3).) That amount includes "[w]ages or profits lost by the victim." (§ 1202.4, subd. (f)(3)(E).)
Defendant argues the court erred in awarding restitution in these amounts because they represent the retail value of the jewelry stolen, not the replacement value of the jewelry. According to defendant, the court was required to set the restitution amount as the replacement cost of the property, citing section 1202.4, subdivision (f)(3)(A). That section provides in part "[t]he value of stolen or damaged property shall be the replacement cost of like property. . . ." (§ 1202.4, subd. (f)(3)(A).) However, it must be remembered the overriding goal of the restitution requirement is to make the victim whole. (People v. Thygesen (1999) 69 Cal.App.4th 988, 994.) Thus, the purpose of subdivision (f)(3)(A) of section 1202.4 was to make sure the victim is made whole by assuring the victim can replace the item stolen or damaged.
When the victim is not a retailer, replacement value alone may be appropriate. However, when the victim is a retailer and the burglary and robbery resulted in over a $200,000 loss, as was found by the jury, and the victim felt compelled to close its business because of defendant's actions, mere replacement of the stolen jewelry would not make the victim whole. The jewelry would have been sold at a profit. The profit the victim would have received had defendant not gone into the jewelry store and robbed the store of its "largest stones," was compensation to which the store was entitled. (§ 1202.4, subd. (f)(3)(E).) "Losses to victims will vary from case to case. For example, in a situation involving a victim who has a ring or necklace stolen, there may be no economic loss other than the actual value of the ring or necklace. The same is not true of a victim who is in business. The economic loss may well include the loss of revenue the stolen item would have produced." (People v. Thygensen, supra, 69 Cal.App.4th at p. 994.)
Because Traditional Jewelers closed its location in the Ritz-Carlton Hotel due to defendant's conduct, its damages were likely much more than the value of the stolen jewels themselves. It lost the sales it otherwise would have made. The restitution order did not result in a windfall to the now closed business and the court did not abuse its discretion in ordering defendant to pay $208,365 restitution to Traditional Jewelers. Accordingly, we uphold the award to Traditional Jewelers.
The only information relating to the amount of restitution to be ordered paid to Ben Bridge Jewelers was the prosecutor's representation that two diamonds — one worth $17,000 and the other worth $13,000 — were stolen from Ben Bridge Jewelers. In our review of a restitution order we ordinarily are limited to determining whether there is any substantial evidence to support the court's findings. (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) In this case, there was no objection to the district attorney's representation of the amount of loss. This may very well have been because defendant's attorney agreed with the prosecutor's representation. We do not decide whether the amount awarded to Ben Bridge Jewelers was correct because defendant's acquiescence and/or failure to object below "forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute. [Citation.]" (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
The distinction was important because the firearm defendant pled guilty to possessing was a revolver and the court had already ruled that his possession of a revolver on the date of that offense was not relevant to prove whether the weapon he used in the charged robbery was a real semiautomatic, or a BB gun or replica.