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People v. Munoz

California Court of Appeals, Second District, Third Division
Mar 24, 2008
No. B200031 (Cal. Ct. App. Mar. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SIMON MUNOZ, Defendant and Appellant. B200031 California Court of Appeal, Second District, Third Division March 24, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of the Los Angeles County No. BA315001, Ruth Ann Kwan, Judge.

Laurie Buchan Serafino, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

CROSKEY, Acting P. J.

Simon Munoz (Munoz) appeals from the judgment entered following a jury trial which resulted in his conviction of second degree robbery (Pen. Code, § 211), during the commission of which he personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced Munoz to 12 years in prison. We affirm the judgment.

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

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Judy Hernandez (Hernandez) works in her father’s store, Maricela’s Discount Store, on Whittier Boulevard in East Los Angeles. At approximately 1:47 p.m. on December 14, 2006, Hernandez was working alone in the store’s office. The store is equipped with a “buzzer” which goes off whenever someone enters or leaves the store. Hernandez heard the buzzer, then checked the television monitor for the surveillance cameras located in the store and saw that a male customer was standing in front of the store’s glass counter, near the cash register. Hernandez could also see the customer from the office window.

Hernandez left the office and went out to the store to see if the man at the counter needed assistance. After Hernandez said “Hello,” the man, who she identified as Munoz, pulled out a black, full size automatic handgun and told her to “give [him] all [her] money.” Hernandez walked to the register and, with both hands, took out the cash and gave it to Munoz. As Hernandez was handing Munoz the money, he repeatedly stated, “All of it, all of it.” Hernandez estimated there had been approximately $600 in the register.

From the time Hernandez stepped out of the office, Munoz pointed the gun “directly at [her].” While she was at the cash register, Munoz held the gun “right in front of [her],” just six to eight inches away. Hernandez gave Munoz the money from the register because he “had a gun on [her], and [she] was very scared.” Hernandez was afraid Munoz was going to shoot her.

Hernandez indicated the robber had been wearing a white T-shirt, jeans and a blue baseball cap with the letters “L.A.” on it. When a police officer showed Hernandez a group of six photographs, or a “photo six-pack,” Hernandez identified a photograph of Munoz as that of the man who had robbed her. At trial, when the prosecutor played the video of the robbery recorded by the surveillance cameras, Hernandez identified Munoz as the robber depicted on the screen.

Los Angeles County Sheriff’s Detective Eduardo Aguirre (Aguirre) was assigned to investigate the December 14 robbery. As part of his investigation, Aguirre “receive[d] some information as to the whereabouts of Mr. Munoz[.]” Aguirre, accompanied by other officers, went to a Bell Gardens apartment on January 3, 2007. There, they found Munoz. From Munoz’s bedroom the detective recovered a blue baseball cap with the letters L.A. on it. Munoz acknowledged that the hat belonged to him.

Dominique Enriquez (Enriquez) is a forensics identification specialist for the Los Angeles County Sheriff’s Department crime lab. On December 14, 2006, Enriquez lifted a latent palm print from the top of the glass counter at Maricela’s Discount Store. When Enriquez compared the palm print taken from the glass counter to Munoz’s palm print, he concluded the prints had been “made by the same person.”

2. Procedural history.

Following a preliminary hearing, on February 1, 2007, Munoz was charged by information with one count of second degree robbery (§ 211), during the commission of which he personally used a firearm (§ 12022.53, subd. (b)). It was further alleged that the robbery was committed for the benefit of, at the direction of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).

On February 13, 2007, Munoz made a motion to dismiss the section 186.22, subdivision (b)(1)(C) gang allegation pursuant to section 995. On April 3, 2007, the trial court granted the motion.

Pursuant to Evidence Code section 402, Munoz’s counsel challenged the admission of evidence of the tape recording of the “911 call that [Hernandez] made to the Sheriff’s Department.” After listening to the recording, the trial court granted counsel’s motion to exclude the evidence stating, “There [was] a lot of background noise. The excited background noise. But the speaker herself was not excited at all. Rather calm, calmly answering questions little by little as asked by the operator. I did not sense any stress of excitement whatsoever from listening to the tape. I would agree with the defense attorney here” that the statements do not fall within the excited utterance exception to the hearsay rule.

Counsel for Munoz also challenged the admission of Munoz’s statement made during questioning by police officers. Counsel asserted the admission had been coerced. The trial court granted Munoz Evidence Code section 402 motion and “suppress[ed] the statement.” The trial court referred to statements made by the interrogator to the effect that, if Munoz failed to admit to the robbery, he would be charged with a gang allegation which “carrie[d] an extra . . . ten years” in prison. The court then commented, “Quite frankly, I consider that implied threats, and it was right after that on the same page of the transcript that he started talking about how he needed money, and he only made $200 every two weeks and started going on answering questions about the robbery. So I’m going to find that there—the language regarding telling him that if he tells—that there’s an implied threat—implied threat in that if he didn’t tell them about the robbery, they were going to go heavy on him by putting forth a gang allegation; and that gang allegation carries ten years.”

During trial, Munoz’s counsel made an Evidence Code section 402 motion with regard to the anticipated testimony of a fingerprint expert. Counsel indicated it was her understanding the expert might “refer to giving his comparison to one or two other examiners and that they confirmed his opinion and the examination.” Counsel objected to the testimony because it would be hearsay, it would be more prejudicial than probative and it would violate Munoz’s right to confront the witnesses against him. The trial court agreed the evidence should be excluded because the other examiners would not be available for Munoz to cross-examine and because the evidence amounted to inadmissible hearsay.

At trial, Munoz’s counsel objected to the jury instruction regarding the use of a firearm because the trial court inserted the word “handgun.” The relevant portion of the instruction, as given to the jury, read: “The word firearm includes a handgun or any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.” The trial court indicated it believed the instruction was proper and “noted” counsel’s objection for the record.

During deliberations, the jury submitted the following question to the trial court: “In the definition of ‘firearm,’ does the clause ‘from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion’ modify the word ‘handgun’? In other words, does the 2nd clause elaborate on the definition of a handgun, or is it something separate?” After discussing the matter with counsel, the trial court responded to the jury’s question by again reading the instruction regarding the definition of a firearm, then stating, “Ladies and gentlemen, these words, from which is expelled through a barrel a projectile by the force of an explosion or other form of combustion modifies the words any device designed to be used as a weapon.”

After the jurors left the courtroom, the trial court indicated that “oftentime[s] when this court gives this instruction, . . . unless there is really a question whether an object is a homemade device, the court often deletes those terms, any device designed to be used on and on and on. [¶] I mean, this portion of the definition really goes to a situation where you have some type of homemade devices, like, a—for example, a big wooden pipe with gun powder stuff in it . . . . So, quite frankly, I think that that portion is rather confusing. I just didn’t . . . take it out, actually, for this instruction when I modified it.”

Shortly after it submitted its question to the trial court, the jury found Munoz guilty of second degree robbery in violation of section 211. The jury further found the allegation that, during the commission of the offense, Munoz personally used a firearm within the meaning of section 12022.53, subdivision (b) to be true.

The trial court sentenced Munoz to the low term of two years in prison for his conviction of second degree robbery. For his use of a firearm during the offense, the trial court imposed a term of 10 years in prison. In total, Munoz was sentenced to 12 years in state prison. Munoz was awarded 178 days of presentence custody credit, consisting of 156 days actually served and 22 days of good time/work time. The trial court ordered Munoz to pay $600 in restitution (§ 1202.4, subd. (f)), a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)(1)) and a $10 crime prevention fine (§ 1202.5).

Munoz filed a timely notice of appeal on June 15, 2007.

This court appointed counsel to represent Munoz on appeal on September 27, 2007.

CONTENTIONS

After obtaining from the trial court an order issuing a corrected abstract of judgment reflecting presentence custody credits in the amount of 156 days actually served and 23 days of good time/work time, for a total of 179 days of credit, Munoz’s appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

Although the trial court issued a corrected abstract of judgment, it does not appear the corrected abstract was forwarded to the Department of Corrections. The relevant minute order indicates a copy of the corrected abstract was sent only to Munoz’s appellate counsel. Accordingly, we direct the trial court to forward a certified copy of the corrected abstract of judgment to the Department of Corrections.

By notice dated January 25, 2008, the clerk of this court advised Munoz to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Munoz’s counsel has 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 judgment is affirmed. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections.

We concur: KITCHING, J., ALDRICH, J.


Summaries of

People v. Munoz

California Court of Appeals, Second District, Third Division
Mar 24, 2008
No. B200031 (Cal. Ct. App. Mar. 24, 2008)
Case details for

People v. Munoz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SIMON MUNOZ, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Mar 24, 2008

Citations

No. B200031 (Cal. Ct. App. Mar. 24, 2008)