Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07906974, Gary D. Hoff, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Jeanette Renee Quintana appeals from a sentence of 28 years to life for first degree robbery and a concurrent term of 25 years to life for possession of a controlled substance. She contends that there was insufficient evidence to support her conviction on the count for possession of a controlled substance. She also contends that the superior court abused its discretion in not dismissing one or more of her prior strikes under People v. Superior Court (Romero) (1998) 13 Cal.4th 497. For the following reasons, we affirm.
STATEMENT OF THE CASE
On November 15, 2007, appellant was charged by amended information with count 1, first degree robbery with use of a knife resulting in great bodily injury (GBI) (Pen. Code, § 211; § 12022, subd. (b)(1); § 12022.7, subd. (a)); count 2, assault with a deadly weapon with GBI (§ 245, subd. (a)(1); § 12022.7, subd. (a)); count 3, possession of a controlled substance (Health & Safe. Code, § 11350, subd. (a)); and count 4, misdemeanor giving false information to a police officer (§ 148.9, subd. (a)). Appellant also was alleged to have prison and strike priors. (§ 667, subd. (a)(1) & (b)-(i); § 667.5, subd. (b); § 1170.12, subd. (a).)
All further statutory citations are to the Penal Code, unless otherwise stated.
On June 20, 2008, after a four-day trial, a jury found appellant guilty of all charges and found the knife and GBI allegations true. On June 23, 2008, the trial court found appellant’s prison and strike priors to be true.
On October 3, 2008, appellant was sentenced to 29 years to life as follows: count 1, 25 years to life, plus a consecutive one year for the knife and three years for the GBI allegation. Imposition of 28 years to life was stayed as to count 2. A 25 year to life term regarding count 3 was to run concurrent. Appellant was given credit for time served as to count 4. Appellant also was ordered to pay $10,000 in restitution, a $40 court security fee, $50 in lab fees, and given total presentence custody credits of 460 days.
On October 21, 2008, appellant timely filed her notice of appeal.
FACTS
On August 30, 2007, Diane Corpeno was at home when appellant came to visit her. Corpeno had known appellant for two years and considered her a friend. Corpeno told appellant that she was going to go to the bank about 7:30 p.m., and then would stop off at appellant’s home to return $20 that she owed appellant for purchasing cigarettes and food for her.
Corpeno walked to the bank that evening and withdrew $800 from the automatic teller machine (ATM). At that point, appellant came up, put her hand on Corpeno’s shoulder, and “yanked” the $800 out of Corpeno’s hand. Corpeno saw appellant put the money in her pocket.
Corpeno grabbed appellant by her T-shirt. Appellant grabbed Corpeno around the neck, and tried to choke her. While attempting to get away from Corpeno, appellant’s shirt tore, causing Corpeno’s hand to slip so Corpeno grabbed appellant by her ponytail. Appellant then bit Corpeno’s right hand to make Corpeno release her, but Corpeno did not let go because the money was her “means of support for the whole month.”
When Corpeno did not let go of her, appellant stabbed Corpeno in her lower right torso. Appellant told Corpeno to let go of her hair and she would return Corpeno’s money. Individuals that had gathered around the two women also told Corpeno to let appellant go so that she would stop stabbing Corpeno.
After Corpeno let appellant go, someone gave Corpeno a towel to stop the bleeding and helped her sit down. Appellant ran and got into a red car that was about 50 feet away, but a cab driver whom Corpeno had called to pick her up from the ATM used his car to block the red car from leaving. Paramedics and police then showed up. Corpeno was taken to a hospital where she was treated.
On cross-examination, Corpeno denied seeing appellant throw “baggies or something that looked like a baggy” at her. She also denied seeing a couple of baggies containing powder or “green stuff” at the scene.
Maria Berumen and her daughter also were at the ATM. Berumen was in her car when she saw Corpeno and appellant “tugging” at each other. Corpeno was asking for someone to call 911 because she was being robbed. Appellant had her shirt wrapped around her hand and was hitting Corpeno in the stomach. Corpeno was holding onto appellant’s hair and would not let appellant go.
Berumen called 911 from her cell phone. While she was on the telephone with the dispatcher, she saw several police cars passing by and followed a police car trying to get the police officer to respond. However, the 911 dispatcher informed Berumen that the officer had a juvenile in the back and could not stop.
When Berumen returned to the ATM, she saw a male trying to separate the women, but someone among the group of people that had gathered around the scene told him to stop because one of the women had a knife. While the women fought, Berumen saw “things” fly up into the air that she thought were coins. Berumen testified that she “guess[ed]” that the things flew up into the air because Corpeno had them in her hand and appellant wanted to take them away from her. Berumen’s daughter told her that the things were not coins. Berumen did not recall who of the two women threw the items that she thought were coins. When the police arrived, appellant was placed in a police car.
Officer Robert Chavez was dispatched to the area based on a call that an armed robbery was in progress. Chavez was the first police officer to arrive on the scene. Chavez was drawn to a crowd of people jumping up and down and waving. He saw a black male with a knife in his hand standing next to a red Dodge Neon. Chavez drew his gun and ordered the male to put the knife down. The male complied. The male told Chavez that “it was her,” and pointed to appellant, who was sitting alone in the Dodge in the passenger’s seat.
There were at least 15 people in the area next to the Dodge, some of whom were yelling at the officer. Chavez called for backup to control the chaotic scene. Bystanders were assisting Corpeno who was bleeding. Chavez identified himself to appellant and ordered her several times to show her hands before appellant complied. Once backup arrived, Chavez ordered appellant out of the vehicle where she was physically taken to the ground and placed in handcuffs. Once outside of the car, appellant told police her name was Roberta Garule with a birth year of 1939. Chavez did not know what happened to the black male.
After appellant’s arrest, Chavez was tending to Corpeno when Berumen gave her initial statement to him in narrative form. Berumen told Chavez that she saw appellant with something wrapped around her hand that she believed was a knife. Berumen said that, when Corpeno was trying to get away or when Corpeno was holding onto appellant by her hair, she saw appellant throw something at Corpeno that hit her in the face. When Berumen walked past the area, she noticed that there were plastic baggies sitting on the ground. Berumen, however, did not have continuous sight of the plastic baggies.
After the paramedics arrived, Chavez took Berumen’s actual statement which was the same as her initial statement.
Appellant, who was wearing jeans with no shirt but was in a black bra, had $140 cash in $20 denominations in the right front pocket of her jeans. Police found $260 cash in $20 denominations and a white T-shirt on the passenger side floorboard of the Dodge. Police also found an ATM receipt lying on the ground by the ATM machine. The amount on the receipt was for $803, the $3 being for an ATM account-owner fee. The Dodge was locked and towed. About a week after appellant’s arrest, and specifically on September 6, 2007, police found a stack of $20 amounting to an additional $400 under the front passenger’s seat of the Dodge while it remained at the tow yard.
Appellant also was in possession of a brown clasp-closed glass case, a small bundle of brillo pads, a small screwdriver and a metal smoking pipe, which are all commonly used for smoking cocaine base.
Police found two plastic baggies which initially tested presumptively positive for marijuana and rock cocaine in front of and to the side of the ATMs. An expert opined at trial that the substance in one of the baggies tested positive for cocaine base with a net weight of 1.98 grams and was a useable amount. No fingerprint testing or blood testing was conducted on the baggies containing the marijuana or cocaine.
Robert Rubio, a defense investigator, interviewed Maria Berumen. Berumen told him that she arrived in a car at the ATM on the date of the incident, and saw two women fighting. She saw a couple of police cars go by and followed them, but they would not stop. She was on the phone with the 911 operator at this time. Berumen indicated that she drove back to the ATM and saw the women still fighting, but did not mention a knife or anyone being stabbed. Berumen told Rubio that she had heard someone say that someone was being stabbed. Berumen also saw something wrapped around the right hand of appellant and saw blood on Corpeno’s stomach.
Berumen also told Rubio that she saw something flying in the air and thought they were coins. She was not sure who threw the coins. Berumen indicated that someone at the scene told her the “coins” that she thought were thrown in the air were baggies
A stipulation also was entered into evidence that the two ATMs at the Bank of America on the evening of August 30, 2007, had cameras that malfunctioned that evening and none of the incidents that are the subject of the charges in this case were captured by those cameras.
DISCUSSION
I.
Conviction for Possession of Cocaine
Appellant contends that there was insufficient evidence to support her conviction for possession of the cocaine that was found in one of the baggies.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.)
Here, the testimony by Officer Chavez that Berumen told him that she saw appellant throw baggies at Corpeno, one of which contained cocaine base, is substantial evidence in support of the conviction for possession of a controlled substance. Appellant, however, contends that Officer Chavez’s testimony about Berumen’s statements was inadmissible hearsay. We conclude that appellant has forfeited this claim because appellant did not object to the admission of the testimony at trial. (People v. Hovarter (2008) 44 Cal.4th 983, 1008.)
Appellant further contends that there was ineffective assistance of trial counsel for failing to object to the testimony of Officer Chavez. According to appellant, she suffered prejudice because the only evidence linking her to the baggy containing the cocaine was the testimony of Officer Chavez.
In order to prevail on a claim for ineffective assistance of counsel, appellant must make two showings. First, she must show that trial counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88; People v. Gray (2006) 37 Cal.4th 168, 206-207.) Second, appellant must show that there is a reasonable probability that, but for trial counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Here, we conclude that appellant cannot prevail on her claim because Officer Chavez’s testimony contained hearsay statements by Berumen that were admissible as prior inconsistent statements.
Evidence Code section 1235 makes admissible the prior inconsistent statement of a witness not only to impeach credibility but also to prove the truth of the matters stated. (People v. Fierro (1991) 1 Cal.4th 173, 221.) However, the testimony of a witness that she does not remember an event is not inconsistent with a prior statement by her describing the event. (People v. Sam (1969) 71 Cal.2d 194, 208-210.) Thus, hearsay statements introduced to impeach a witness cannot be used as substantive evidence where the witness has previously testified that she does not recall the event. However, “[i]nconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’s prior statement [citation], and the same principle governs the case of the forgetful witness.” (People v. Green (1971) 3 Cal.3d 981, 988 .)
Here, Berumen testified that the defendant “was trying to get away and the African lady, she wouldn’t let her go.” Corpeno is a black female, while appellant is not. Berumen further testified: “I just saw things flying up in the air and I thought they were coins. I thought she was being robbed of her money, so -- that is basically what I saw.” Later, Berumen was asked how she knew the things that she thought were coins “got in the air.” She responded: “I guess because the African-American had them, I guess, in her hand and the other woman wanted to take them way [sic] from her.” The prosecutor then asked, “Coins?” and Berumen responded, “Well, yeah, from what I saw. I just saw things flying up and my daughter who was with me said, Mom, they were not coins.” Berumen also testified that she did not know who threw the items that she thought were coins at the other.
From this testimony, we can infer that Berumen thought that the “coins” were in Corpeno’s possession and that appellant was trying to grab the “coins” from her which resulted in the coins flying up into the air.
Officer Chavez’s testimony, however, indicates that Berumen thought that appellant threw the baggies at Corpeno. According to Officer Chavez, Berumen “said [that] as the victim [Corpeno] was trying to get away, or the victim was holding the defendant by the hair she saw her throw something at her that hit her in the face.” Asked who “her” was, Officer Chavez testified: “Miss Corpeno. The defendant threw something at Miss Corpeno and hit her with something in the face. And she said as she walked past that area to further assist Miss Corpeno she saw them to be plastic baggies sitting on the ground.”
Thus, this testimony indicates that the things that were thrown were the baggies containing drugs, and that they were in appellant’s possession when she threw them at Corpeno. Berumen’s statements to Officer Chavez is thus inconsistent in effect from her statements at trial because they differed on what was in the air (things that looked like coins versus baggies containing drugs), and on how the items got into the air (from an attempt by appellant to grab them versus throwing them at Corpeno). Thus, Officer Chavez’s testimony containing Berumen’s hearsay statements were admissible under Evidence Code section 1235. Therefore, there is no reasonable probability that a different outcome would have been reached if trial counsel had objected to the admission of Officer Chavez’s testimony. Appellant’s claim is thus denied, and the conviction for possession of a controlled substance is affirmed.
II.
Discretion to Dismiss Strikes Under Romero
Quintana contends that the Superior Court abused its discretion in denying her Romero motion and in not striking her priors because her 1980 adult convictions were remote and she was then 50 years old. (Romero, supra, 13 Cal.4th 497.) In its ruling denying the motion, the trial court stated that it had considered the “extreme remoteness” of the prior convictions for kidnapping, “robbery and attempted robbery.” The trial court disagreed with the argument that 50 years of age in and of itself is too old to pose a risk to society because “[t]here are many instances of individuals of that age or older who are capable of crimes of violence.” The trial court stated: “In Ms. Quintana’s situation her history is for crimes of violence, even though it is a remote history. Her current offense for the crime of violence, had it been something other than that, the court would have [taken] a different view of the Romero motion. Notwithstanding the age of her prior convictions, noting what those prior convictions are for and what the subsequent convictions have been for and what her current offense amounted to, the court finds that she is not an appropriate person for whom the court should strike any of her strikes and her Romero motion is denied.”
In reviewing the denial of a Romero motion, the trial court’s decision to strike or not strike a previous serious or violent felony is reviewed under a deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Id. at p. 378.)
Here, the trial court properly exercised its discretion by examining permissible factors such as prior convictions, current convictions, and age of the defendant. Its decision to deny the Romero motion is neither irrational nor arbitrary considering that appellant was convicted of stabbing her “friend” with a knife during a robbery and her previous strikes (two kidnapping, two robbery and one attempted offenses) arose from a crime of violence. Thus, appellant is not a defendant who “may be deemed outside the [three strikes law’s] spirit, in whole or in part, and hence should be treated as though [she] had not previously been convicted of one or more serious and/or violent felonies.” (Carmony, supra, 33 Cal.4th at p. 377.) Therefore, the trial court did not abuse its discretion in denying the Romero motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J., Kane, J.