Opinion
B161789.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS CHARLES PUPICH, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
Nicholas Charles Pupich appeals his conviction by jury of four counts of robbery (Pen. Code, § 211) with personal use of a firearm. ( § 12022.53, subd. (b).) Appellant, who has prior convictions of first degree burglary and robbery, was sentenced as a third strike offender to a term of 25 years to life on each count. ( §§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d).) The trial court imposed a 10-year term for the firearm use with respect to each count. It also imposed one five-year enhancement term under section 667, subdivision (a)(1) on each count. Finally, the trial court ordered the sentences imposed on counts 1 and 3 to run consecutively, and those imposed on counts 2 and 4 to run concurrently. Appellant contends the trial court erred in excluding evidence of third party liability and in imposing the section 667, subdivision (a)(1) five-year enhancements on each count. Respondent concedes the latter error. We conclude that appellant is subject to two five-year enhancements for priors, one for each of his two prior serious felony convictions. We order the abstract of judgment amended accordingly. In all other respects, the judgment is affirmed.
All statutory references are to the Penal Code unless otherwise stated.
Facts
Appellants convictions relate to two separate Oxnard robberies, each involving two victims. The first robbery occurred on January 19, 2001 when appellant and an accomplice lured Joe Gonzalez and Edgar Ortiz to a secluded location by promising to sell them a new car stereo and speakers for $ 100. Gonzalez and Ortiz drove to the location and went to look at the stereo. Instead they were confronted by appellant who pointed a shotgun at Gonzalez and demanded his money. Appellant and his accomplice took cash from Gonzalez and a chain that Ortiz was wearing around his neck.
When they reported the robbery to police, Gonzalez and Ortiz described the person with the gun as a taller white man with hickeys on his neck, and tattoos on his hand and neck. The tattoos included the word "SUR," the number 13, and "smile now, cry later" faces. They reported that appellant was driven to the location in a car with a woman driving, a woman in the front passenger seat and two men in the back. Both victims chose appellants picture from a photographic line up they were shown a few days later. Gonzalez identified a photograph of Isabel Rico as the driver of the car.
On the afternoon of January 20, 2001, Christobal Martinez and Alejandro Rivera were standing on an Oxnard sidewalk when a car, driven by a woman, parked nearby. Appellant, who was carrying a shotgun, and another man carrying a knife got out of the car and robbed Martinez and Rivera of their wallets and jewelry. Rivera identified appellant from a photographic lineup as the person with the shotgun. Martinez made no identification.
Two days later, an Oxnard police officer saw appellant standing in the parking lot of an Oxnard motel. Appellant said he was waiting for his girlfriend, Isabel. The officer arrested appellant when he noticed that appellant had hickeys and tattoos matching those described by the robbery victims. Appellant had no wallet or jewelry and only 25 cents in cash when he was arrested.
Discussion
Third Party Culpability
Appellant contends the trial court erroneously excluded evidence that the robberies could have been committed by another person. He asserts that Francisco Cazarez and Cesar Valenzuela are likely suspects because they were sharing the motel room with appellant and his girlfriend. Cazarez has tattoos that are similar, although not identical to appellants. In addition, three other robberies were committed in Oxnard on January 16, 18, and 20. Another person was arrested for at least one of those robberies. Appellant contends he should have been permitted to introduce evidence of the similarities between these robberies and the charged offenses.
The prosecutor moved in limine to exclude evidence of third party culpability under Evidence Code section 352 as irrelevant and creating a substantial danger of unfair prejudice and juror confusion. She contended the evidence did not raise a reasonable doubt as to appellants guilt because the other proposed suspects did not have tattoos matching those described by the victims. Further, the other robberies differed from the charged crimes because they did not involve two women and two men, a similar vehicle, or similar weapons. For example, one such robbery was committed by three men in a pickup. Another involved three men with a handgun rather than the shotgun favored by appellant. The trial court granted the motion, concluding: "Im satisfied the burden has not been satisfied on behalf of the defendant. In addition, its too speculative, so I dont even see it satisfying relevancy . . . ."
In People v. Hall (1986) 41 Cal.3d 826, 226 Cal. Rptr. 112, 718 P.2d 99, our Supreme Court rejected the so-called Mendez-Arline rule, which required "a preliminary showing of a substantial probability of third-party guilt . . . ." (Id. at p. 829.) Under Hall, evidence of a third partys guilt "need only be capable of raising a reasonable doubt of defendants guilt." (Id. at p. 833.) Such evidence should be treated "like any other evidence: if relevant it is admissible ([Evid. Code] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code] § 352)." (Id. at p. 834.) Although Hall refused to impose an "elevated standard of admissibility on defense evidence of a third partys guilt of the charged crimes," it also made clear "that commonsense relevance limits apply. Evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. " (People v. Pride (1992) 3 Cal.4th 195, 237-238, 833 P.2d 643, quoting People v. Hall, supra, at p. 833.)
The rule is named after two cases, People v. Mendez (1924) 193 Cal. 39 and People v. Arline (1970) 13 Cal. App. 3d 200 .)
"A trial courts discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion." (People v. Lewis (2001) 26 Cal.4th 334, 372-373.) Error in the exercise of that discretion is harmless unless it appears reasonably probable that a result more favorable to the defense would have been reached in the absence of the error. (People v. Cudjo (1993) 6 Cal.4th 585, 611, 863 P.2d 635; People v. Hall, supra, 41 Cal.3d at p. 836; People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243.)
Here, the trial court properly excluded appellants proffered evidence of third party guilt because appellant had no direct or circumstantial evidence linking a third person to the charged offenses. The other proposed suspects had different tattoos and used different weapons, vehicles and accomplices than those involved in the charged offenses. The evidence was irrelevant and speculative. There was no abuse of disecretion.
Enhancement for Prior Serious Felony Convictions
The trial court found that appellant had two prior serious felony convictions within the meaning of section 667, subdivision (a): a 1998 conviction of first degree burglary ( § 1192.7, subd. (c)(18)), and a 1994 conviction of robbery. ( § 1192.7, subd. (c)(19).) It imposed one five-year enhancement term on each of appellants four current convictions, resulting in an additional term of 20 years. Appellant contends the trial court erred because he is subject to only one five-year enhancement. Respondent concedes the error. In doing so, it concedes too much.
Appellant has two "five year priors" and is therefore subject to two five-year enhancement terms under section 667, subdivision (a)(1). (People v. Dotson (1997) 16 Cal.4th 547, 553-554, 941 P.2d 56; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1138-1139.) This results in a separate determinate term of 10 years, rather than the 20 years imposed by the trial court. The ten year term is imposed only once, in connection with the aggregate sentence. It is not imposed separately on each count of which appellant is currently convicted. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1163-1164; People v. Tassell (1984) 36 Cal.3d 77, 90-91, 201 Cal. Rptr. 567, 679 P.2d 1, disapproved on other grounds, People v. Ewoldt (1994) 7 Cal.4th 380, 387, 867 P.2d 757.)
Conclusion
Accordingly, the abstract of judgment is ordered amended to reflect a separate ten year term to the sentence of 70 years to life on counts 1 and 3 for an aggregate total term of 80 years to life. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., and COFFEE, J.