Opinion
B158261.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. ALFRED F. LOPEZ, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Kim Aarons, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Alfred F. Lopez challenges his carjacking, robbery, and evading a police officer convictions on the following grounds: The court erred in failing to acquit him sua sponte, on the evasion count, at the close of the prosecutions case-in-chief. His attorney rendered ineffective assistance in failing to make a motion for acquittal on the evasion count at the conclusion of the prosecutions case-in-chief, and by introducing evidence to fill the gap in the prosecutions proof on the count. Jury instruction CALJIC No. 2.15 improperly created a conclusive presumption of an essential element of the evading charge, reducing the prosecutions burden of proof. Finally, the trial court should have granted appellants motion for a new trial on the ground of effective assistance of counsel.
We conclude trial counsel rendered ineffective assistance by failing to move for acquittal on the evading charge at the conclusion of the prosecutions case-in-chief. However, CALJIC No. 2.15 did not reduce the prosecutions burden of proof. We conclude the trial courts denial of the motion for new trial was not error, because appellant failed to demonstrate prejudice.
BACKGROUND AND PROCEDURAL HISTORY
As Rolando Lopez was placing coins in a parking meter, a man struck him from behind and knocked him down, threatened to kill him, took his wallet and car keys, and drove off in his car. As Lopez lay on the sidewalk, he got a brief look at the man as he started the car. Lopez identified appellant as his assailant. One day and seven hours later, the police located Lopezs car and attempted to stop it. Appellant, who was alone in the car, led police on a chase, but was eventually captured.
A jury convicted appellant of carjacking, second degree robbery, and evading a peace officer. The trial court sentenced appellant to prison for 24 years 4 months.
DISCUSSION
1. Defense counsel rendered ineffective assistance by failing to move for acquittal on the evading count at the close of the prosecutions case.
Count three charged appellant with evading a pursuing peace officer in violation of Vehicle Code section 2800.2, subdivision (a). Among other elements, the prosecution was required to prove that the pursuing peace officers vehicle was exhibiting at least one lighted red lamp visible from the front. (Veh. Code, § 2800.1, subd. (a)(1).)
In its case-in-chief, the prosecution established that Officer Ruben Flores noticed a car, "ran" the license plate, and discovered it was a "felony vehicle." Flores and his partner then attempted to stop the car. He testified they turned on their "overhead lights" and siren and chased the car, which did not stop. Flores further testified that the lights on his car were working, but never testified that his car displayed at least one lighted red lamp visible from the front. No other officers testified regarding the pursuit.
Appellant contends the trial court had a sua sponte duty to order entry of judgment of acquittal on count three because the prosecutions case-in-chief did not include any evidence that any of the pursuing police cars exhibited a lighted red lamp visible from the front. He relies upon the language of Penal Code section 1118.1, which provides, in pertinent part, that "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
Appellant is incorrect. The trial court had no sua sponte duty to evaluate the sufficiency of the prosecutions evidence. (People v. Smith (1998) 64 Cal.App.4th 1458, 1464, 1469.) Appellants failure to make a motion for acquittal at that time waived the issue of the sufficiency of the evidence at that point. (Ibid.)
Appellant alternatively contends his trial attorney rendered ineffective assistance by failing to move for acquittal on count three under Penal Code section 1118.1. A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsels errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal. Rptr. 404, 729 P.2d 839.) Where, as here, the error claimed is the failure to make a motion, appellant must show that the motion would have been successful. (People v. Grant (1988) 45 Cal.3d 829, 864, 248 Cal. Rptr. 444, 755 P.2d 894.) In addition, appellant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561, 917 P.2d 1175.)
While a motion for acquittal under Penal Code section 1118.1 must be made to preserve the issue (People v. Smith, supra, 64 Cal.App.4th at p. 1464), the motion need not specify the charge to which it applies or the element as to which proof is insufficient. (Id. at p. 1468.) Accordingly, "unless the defendant has a very good reason not to do so, the close of the prosecutions case should always be followed by a nonspecific section 1118.1 motion directed at all counts and enhancements." (Ibid.) Because defense counsel could have moved for acquittal outside the presence of the jury, without alerting the prosecution to the nature of specific evidentiary gap, there appears to be no reasonable or sound trial strategy that would justify counsels failure to make the motion.
Respondent suggests that the "very good reason" not to make a motion for acquittal was that appellants best defense strategy was to "appear to be forthcoming" in his testimony by admitting that he fled from the police during the pursuit in the hope the jury would find his alibi testimony pertaining to the carjacking and robbery counts more credible. Appellant apparently pursued that very strategy by admitting in his testimony during the defense case that he saw the police cars with their red lights and heard their sirens. The flaw in respondents argument is that pursuit of this trial strategy was not incompatible with making a motion under Penal Code section 1118.1. If counsel made the motion for acquittal at the close of the prosecutions case, and the court granted the motion, count three would have been removed from the purview of the jury. Appellant could then have freely admitted that he evaded the officers, without risking conviction of that charge. Accordingly, counsels failure to move for acquittal constituted objectively unreasonable performance.
Had counsel made a motion for acquittal, the trial court should have granted it because the prosecutions case-in-chief included no evidence on the lighted red lamp element of the offense. If the court erroneously denied the motion, the issue would have been preserved for appeal, and this court would have reversed and directed the trial court to enter a judgment of acquittal on count three. (People v. Belton (1979) 23 Cal.3d 516, 527, 153 Cal. Rptr. 195, 591 P.2d 485.) Though the trial court, in its discretion, could have permitted the prosecution to reopen its case-in-chief to supply the missing evidence (People v. Goss (1992) 7 Cal.App.4th 702, 708, abrogated on another ground in People v. Monge (1997) 16 Cal.4th 826, 941 P.2d 1121), the mere possibility that the prosecution might have obtained relief from its error does not negate the existence of prejudice. It remains reasonably probable that appellant would have succeeded on a Penal Code section 1118.1 motion at the conclusion of the prosecutions case-in-chief.
Because appellant should have been acquitted by the trial court on count three, the proper remedy is to direct the court upon remand to enter a judgment of acquittal on count three. In light of our conclusions, we need not address appellants remaining contentions regarding count three.
2. CALJIC No. 2.15 does not reduce the prosecutions burden of proof.
Appellant was apprehended after fleeing a car stolen about 31 hours earlier. Accordingly, the trial court instructed the jury with CALJIC No. 2.15, which stated, "If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of carjacking. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [P] As corroboration, you may consider the attributes of possession—time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendants conduct, any statements he may have made with reference to the property[,] a false account of how he acquired possession of the stolen property [and] any other evidence which tends to connect the defendant with the crime charged."
Appellant contends instruction with CALJIC No. 2.15 reduced the prosecutions burden of proof because "slight" corroborating evidence is necessarily less than proof beyond a reasonable doubt, and the instruction effectively transformed the prosecutions burden of proof into "any relevant evidence, regardless of how weak or closely contested that evidence may be."
CALJIC No. 2.15 has repeatedly been held a proper instruction. (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 677, 937 P.2d 213.) Where a defendant is found in conscious possession of recently stolen property, an inference of guilt is permissible if there is at least slight corroborating evidence in the form of statements or conduct tending to show the defendants guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754, 26 Cal. Rptr. 473, 376 P.2d 449.) The jury must determine whether the inference should be drawn in light of all the evidence. (Id. at p. 755.)
It is not reasonably likely the jury misconstrued CALJIC No. 2.15. The instruction expressly informed the jury it could not convict appellant of robbery simply because he possessed Lopezs car. As the Supreme Court noted in People v. Holt, supra, 15 Cal.4th at p. 677, there is no possibility the jury would understand an additional instruction that it could not rely solely on evidence appellant possessed recently stolen property to suggest it need not find that all of the elements of carjacking had been proven beyond a reasonable doubt. The inference addressed by CALJIC No. 2.15 is one many, if not all, jurors would logically and naturally draw: if appellant had Lopezs stolen car, he must have been the one stole it. The instruction protected appellant by restricting the jurys unwarranted inference of guilt based solely on possession of property stolen during the robbery. (Ibid.)
Moreover, the correctness of jury instructions is determined from the entire set of instructions, not from just an isolated instruction or part thereof. (People v. Frye (1998) 18 Cal.4th 894, 957, 959 P.2d 183.) The jury was instructed as follows: (1) It must not single out individual instructions, but must read the instructions as a whole (CALJIC No. 1.01); (2) Some instructions might be inapplicable (CALJIC No. 17.31); (3) Before it could find an inference essential to establish guilt to have been proved beyond a reasonable doubt, it must also find each supporting fact or circumstance to have been proved beyond a reasonable doubt (CALJIC No. 2.01); (4) It must adopt the interpretation pointing to appellants innocence if circumstantial evidence was equally susceptible of two reasonable interpretations (CALJIC No. 2.01); (5) in order to find appellant committed carjacking, it must find that he took a vehicle from the victims person or immediate presence by means of force or fear, with the intent to either temporarily or permanently deprive the victim of the vehicle (CALJIC No. 9.46); and (6) the prosecution had the burden of proof beyond a reasonable doubt (CALJIC No. 2.90). Viewing CALJIC No. 2.15 in light of the remaining instructions, we find no reasonable likelihood that the jury misconstrued or misapplied the words of the instruction.
3. The trial court did not err by denying appellants motion for a new trial.
Appellant moved for a new trial on the ground he received ineffective assistance of counsel at trial. The trial court denied the motion.
Appellant contends the court should have granted his motion on the ground that trial counsel was ineffective in failing to "impeach the victim with the fact that he had at one point gone to the District Attorneys office and asked that the case be dismissed because he was uncertain of his identification of appellant." Appellant bases his claim upon a report from an investigator for the Public Defenders office attached to his motion for new trial. In that report, Robert Hill states that Lopez told him on or about July 14, 2000, he told the prosecutor he was uncertain of his identification and asked the prosecutor to dismiss the case.
The jury heard the following testimony regarding Lopezs identification of appellant. Five days after the robbery and carjacking, Lopez identified appellant from an array of six photographs. He was certain of his identification at that time. More than one month after the robbery and carjacking, Lopez viewed a live line-up at the jail. He tentatively identified appellant, but was uncertain because appellants hairstyle and facial hair were different and he was wearing glasses during the lineup. Lopez was also uncertain of his identification when he testified at a hearing about ten months after the crime. Lopez was nervous and appellant looked different. Appellant also looked different at trial, but Lopez identified him as the person who robbed him and took his car. Through cross-examination, defense counsel highlighted Lopezs intermittent uncertainties regarding his identification and the extremely poor opportunity he had to observe his attacker, given the brevity of the event, the blow he had suffered, the poor lighting conditions, and his poor vantage point as he lay on the sidewalk next to the car that the robber was about to drive away. Counsel also cast doubt upon Lopezs explanation that appellants appearance had changed between identifications by asking Lopez to compare appellants booking photograph with his appearance at later dates.
Thus, the jury already knew Lopez was at times uncertain about his identification of appellant and, perhaps more importantly, that there were serious reasons to doubt whether Lopez had a sufficient opportunity to observe his attacker. The only new aspect related in the investigators report was Lopezs request that the prosecutor dismiss the case. Given the jurys rejection of the numerous and substantial reasons to doubt Lopezs identification, it is not reasonably probable it would have been persuaded that the identification was erroneous had it learned of Lopezs request to drop the case. Accordingly, the trial court did not err by denying appellants motion for new trial.
DISPOSITION
The judgment is reversed as to count three and sentence is vacated. The matter is remanded to the trial court with directions to enter a judgment of acquittal as to count three, and for imposition of sentence. In all other respects, the judgment is affirmed.
We concur: COOPER, P.J., RUBIN, J. --------------- Notes: Appellants first trial resulted in conviction on all three charges, but the trial court granted his motion for new trial on the ground of ineffective assistance of counsel. All references pertain to appellants re-trial.