Opinion
G060357
12-14-2022
THE PEOPLE, Plaintiff and Respondent, v. KARISSA MECHELLE ROBERTO, Defendant and Appellant.
John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgement of the Superior Court of Orange County, No. 19WF2910 Frank Ospino, Judge. Affirmed.
John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
A jury convicted defendant Karissa Mechelle Roberto of one count of second-degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and found true allegations that she personally used a firearm in the commission of the crime (§ 12022.53, subd. (b)). The court also found true allegations that defendant had suffered a prior serious felony conviction for robbery. (§§ 667, subd. (b), 1170.12, subd. (b).)
All further statutory references are to the Penal Code, unless otherwise stated.
The court sentenced defendant to 14 years in state prison as follows: (1) the low-term of two years for the robbery, doubled to four years for the prior conviction; and (2) a consecutive term of 10 years for the firearm enhancement (§ 12022.53, subd. (b)). The court dismissed the five-year prior serious felony enhancement. (§ 667, subd. (a).)
Defendant raises three arguments on appeal. First, she contends the court erred by admitting improper expert testimony to prove the 10-year firearm enhancement. According to defendant, the investigating officer's expert opinion erroneously vouched for the veracity of the victims' testimony. Second, she argues the court punished her for going to trial by imposing a harsher sentence than indicated during pretrial proceedings. Finally, defendant claims we should remand the matter for resentencing in light of Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, §1) (Senate Bill No. 81), which amended section 1385 to detail factors a trial court must consider when exercising discretion to strike an enhancement from a defendant's sentence.
We disagree with each of defendant's contentions. The investigating officer did not purport to give an opinion as to the veracity of the victims' testimony. There also is no suggestion the court sought to punish defendant for exercising her right to a jury trial. Any indicated sentence provided during pretrial proceedings was not a promise that the sentence would be imposed after trial. Finally, Senate Bill No. 81 does not apply to defendant's case because she was sentenced in June 2021. The plain language of the amended statute states that it applies to sentencings occurring after January 1, 2022. (§ 1385, subd. (c)(7).) We accordingly affirm the judgment.
FACTS
In November 2019, H.L. and T.H., two women, were working at Xinh Café in Westminster. The venue was known as a site for gambling, and law enforcement previously informed H.L. that the gambling was illegal. Both women were given immunity from charges related to illegal gambling in exchange for their testimony about the robbery.
According to their testimony, defendant and her friend walked into the café and sat down at a table. Defendant eventually got up from the table and approached T.H. T.H. testified defendant placed a gun to the side of her stomach and asked for money. Defendant then turned toward H.L. who was standing at the cash register and demanded money. H.L. testified defendant pointed a gun at her, and she gave all the money in the register, approximately $400 to $500, to defendant.
According to T.H., defendant then walked toward her and asked for more money. After H.L. suggested there was money under a board they used to hide money from one of the gambling tables, T.H. retrieved the money and gave it to defendant. Defendant then took both women's cellphones, walked to the front of the café, and left the cellphones on a table while telling them to not follow her.
H.L. and T.H. checked the accounting books, cleaned up the café, and called the police about 45 minutes later. Based on photographs taken from the café's surveillance cameras, H.L. and T.H. confirmed the photographs depicted what had happened that day. H.L. also testified one of the photographs depicted defendant carrying a gun.
Both H.L. and T.H. had seen a gun on one prior occasion and believed defendant was holding a real gun. H.L. testified she was confident the gun was real because "it looked heavy." When asked why she thought it looked heavy, she responded: "By the way it looks." T.H. testified she had held and shot a gun on one occasion. She thought a real gun was heavier than fake "water guns" she had played with in the past. She further testified she believed defendant held a real gun because "looking at the shape . . . it seemed very real."
DISCUSSION
Defendant contends the court erred by admitting certain expert testimony regarding the gun used in the robbery. She also argues the court penalized her for taking her case to trial by imposing a 14-year sentence after a previous judge had given an indicated sentence of seven years. Finally, defendant claims the matter should be remanded for resentencing in light of Senate Bill No. 81. For the reasons below, we disagree and affirm the judgment.
The Court Did Not Err by Admitting Expert Testimony About Defendant's Gun
A. Relevant Background and Expert Testimony
As noted ante, defendant was charged with robbery while personally using a firearm within the meaning of section 12022.53, subdivision (b). Section 12022.53, subdivision (b) provides that "a person who, in the commission of a felony specified in subdivision (a) [including robbery], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." A firearm "means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." (§ 16520, subd. (a); see § 12001.) "[T]oy guns obviously do not qualify as a 'firearm,' nor do pellet guns or BB guns . . . ." (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435.) The authenticity of the gun can be shown by circumstantial evidence. (Id. at p. 1436.)
To prove defendant's gun was real, the prosecution called Detective Marcela Lopez, the investigating officer, as an expert witness. With respect to her experience, Lopez testified she had been trained in the use of handguns. The training included "identification of firearms, different handguns, assault weapons, [and] shotguns" as well as handling and shooting weapons. She carried a handgun while on duty and personally owned three handguns. She also had investigated approximately 50 cases involving a handgun.
As to the robbery, the prosecutor asked Lopez about two photographs taken from the café's surveillance footage. Lopez identified defendant's gun in both photographs and described its various parts. Based on the photographs, she believed the weapon could have been a .38 caliber semi-automatic handgun. She also testified defendant's gun did not have an orange tip which is typical of replica guns.
Lopez further acknowledged she heard H.L. and T.H. testify about why they thought defendant's gun was real. She next opined the firearm was real. When asked the basis for her opinion, she responded: "Witness statements, my observations of the firearm, some messages that were on the phone." After defendant's counsel objected, the court conditionally struck "the last portion" of the testimony. The prosecutor followed up by asking if Lopez had any reason to believe the gun was not real. Lopez responded: "No."
On cross-examination, Lopez agreed she did not know "100 percent" whether defendant's gun was real or a replica. Defendant's counsel also asked, "So without physically seeing the gun and holding the gun, you cannot tell from a photo if it was a real gun or a replica gun; is that correct?" Lopez responded: "Correct."
On redirect, Lopez testified she did not rely solely on the photographs to determine defendant's gun was real. The prosecutor then asked: "You also spoke with [H.L. and T.H.]; correct?" After Lopez agreed, defendant's counsel objected that the testimony was an improper opinion. The court held a sidebar and expressed concern that the prosecutor's line of questioning could lead to an admission of defendant's statement to police that the gun was not real. The prosecutor explained he wanted to establish Lopez's opinion was not based solely on the photographs. In response, defendant's counsel argued the prosecutor's question "was not phrased as a hypothetical." The court agreed, stating: "[B]y asking it in the fashion in which you did, really what you have is you have the officer vouching for the credibility of the witnesses because presumably she is believing that testimony and relying on that testimony in order to render an opinion that it's a gun."
The prosecutor continued with redirect and asked if Lopez had an opinion as to whether defendant's gun was real based on the two photographs and the victims' belief that the gun was real. Defendant's counsel objected, claiming the prosecutor's question posed an improper hypothetical, lacked foundation, and "assume[d] the ultimate issue." The court sustained the objections and held another sidebar. After further discussions with the parties, the court ultimately advised the prosecutor as follows: "[P]hrase your hypothetical question by saying for purposes of this hypothetical question assume that the testimony of [T.H.] in relationship to the gun, whatever that is, is true. Assume that and assume the testimony of [H.L.] is true; right? Based on your expertise, you're looking at the photograph and those assumptions, do you have an opinion?"
Consistent with the court's advice, the prosecutor asked Lopez if she had an opinion as to whether defendant's gun was real given the two photographs and assuming the victims' testimony was true. The court overruled defendant's objections, and Lopez opined the gun was real.
B. Analysis
Defendant argues Lopez's expert opinion erroneously vouched for the veracity of the victims' testimony. In other words, she claims "Lopez testified, in effect, that she thought the gun was real because [H.L.] and [T.H.] said so." She contends the admission of Lopez's testimony was prejudicial because the jury otherwise may have found the gun was not real. We disagree.
Expert testimony is admissible if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) Opinion testimony "about the veracity of another person's statement [is inadmissible] because the statement's veracity is for the jury to decide." (People v. Houston (2012) 54 Cal.4th 1186, 1221.) Thus, "lay views on veracity do not meet the standards for admission of expert testimony." (People v. Melton (1988) 44 Cal.3d 713, 744.) A trial court's decision to admit expert testimony is reviewed for an abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) "'An abuse of discretion occurs only if the reviewing court, considering the applicable law and all of the relevant circumstances, concludes that the trial court's decision exceeds the bounds of reason and results in a miscarriage of justice.'" (Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292.)
Here, Lopez's testimony did not purport to give an opinion as to the veracity of H.L. or T.H.'s testimony. The prosecutor asked if Lopez had an opinion as to whether defendant's gun was real based on the two photographs and assuming the victims' testimony was true. Lopez then opined the gun was real. Given the prosecutor's question, as posed, Lopez did not state an opinion as to whether H.L. and T.H. told the truth. Defendant notes Lopez testified on cross-examination that she did not know "100 percent" if the gun was real based on the photographs. Relying on this testimony, defendant suggests Lopez's opinion was based solely on the veracity of the victims' testimony. Not true. Lopez clearly testified she believed defendant's gun was real given her own "observations of the firearm." While Lopez did not personally examine the gun and the gun could have been a replica, this factor goes to the weight, not the admissibility of Lopez's opinion. (People v. Horning (2004) 34 Cal.4th 871, 900-901.)
Even assuming the court erred, any error was harmless because there was no reasonable probability defendant would have received a more favorable outcome absent Lopez's opinion. (People v. Melton, supra, 44 Cal.3d at p. 745 [applying standard of error set forth in People v. Watson (1956) 46 Cal.2d 818].) The prosecution offered other testimony that would allow the jury to find the firearm enhancement to be true. Both H.L. and T.H. testified they believed the gun was real. Indeed, defendant acknowledges their testimony could have been sufficient to sustain the jury's finding on the firearm enhancement. The jury also was shown photographs taken from the café's surveillance footage that depicted defendant's gun. Finally, the jury was instructed: "You alone, must judge the credibility or believability of the witnesses." (CALCRIM No. 226.) Absent any evidence to the contrary, we assume the jury followed these instructions and conclude any error in admitting Lopez's testimony was not prejudicial. (People v. Homick (2012) 55 Cal.4th 816, 879.)
The Court Did Not Punish Defendant for Exercising Her Right to a Jury Trial
Defendant next asserts the court punished her for going to trial by imposing a higher sentence than previously indicated. She notes the court indicated a potential 7-year sentence before trial but imposed a 14-year sentence after trial. To the contrary, nothing in the record indicates the court penalized defendant for exercising her right to go to trial.
A. Relevant Background
During a pretrial proceeding, the prosecutor asked if there was "an offer from the court" regarding defendant's potential sentence. The court's following lengthy response is at issue in this appeal. "I haven't heard the facts of the case. Okay? And obviously we're here for trial. Okay? What I wanted to make certain was that it's my understanding, okay, that at some point or other Judge Makino made you an offer of seven years on the case, and it's my understanding that at that time you didn't want to accept that offer."
"You know, I've looked at the information, which is the charging document in the case, okay, and I calculated what your potential exposure on the case is. Okay? And so I've calculated it as this. Okay? And bear in mind, okay, I am not by any means suggesting that you're guilty or not guilty. Since we're going to have an overnight, I just want you to think about a couple of things. Okay? So on count 1, you're charged with robbery, and robbery just carries a potential prison term of two, three, or five years. Okay? However, that robbery that you're charged with is enhanced by two separate enhancements. One of them is what is commonly called a strike. Okay? And one of them is a prior serious felony conviction."
"So what the strike prior does is it would, if you were convicted and I'm not saying you're guilty or not, if you were convicted of that robbery and if I found or if the jury found that strike prior to be true, that would require the court to double the punishment from two, three, or five years to four, six, or ten years. So just the punishment on count 1, maximum punishment is ten years. Now, that would also get enhanced by that same prior which is alleged as a [section 667, subdivision (a)(1)] prior, and that adds five years. So just on count 1 with the prior conviction, which is the robbery that you're on probation for, you're looking at a potential sentence of 15 years in state prison. And . . . if the jury were to find . . . that you personally used a firearm during the commission of the robbery, that carries an additional ten years."
"So just on this case, you're facing, you know 25 years in state prison as a maximum. Now, that doesn't include the possible time and I don't know how much time you have that the court could or a court could add consecutively on a probation violation because you're on probation for robbery as well. And so that would be one-third the midterm. That would be an additional year. But you probably have credits on that, so I don't know that it makes much of a difference, but the point that I'm saying is this . . . it was brought to my attention that Judge Makino made you a seven-year offer and, you know, I don't know what a jury is going to do. Okay? But I have to tell you that that seven-year offer is something that you seriously need to think about . . . . I say that for a couple of reasons."
"If you go to trial, okay, I have a number of options available to me. I could do less than seven if I wanted and I thought that the facts warranted, okay, but I also have the ability to go as high as 25 years. And what I wanted to make certain is that you're not caught by surprise if you end up with a sentence that's substantially greater than the seven years. For Judge Makino to offer you that seven years, just so that you know, he would have to strike the allegation under [section 667, subdivision (d)] which is the strike. Okay? He would have to make a finding that the robbery in this case . . . warrants a low term and he would have to strike a ten-year gun enhancement. But based on the information that was provided to him, he was willing to do that."
"And, like I said, I don't know whether you're guilty or not guilty. Okay? I just want to make certain though that you've had an opportunity to think about the offer that Judge Makino made so that you can make the right decision for yourself. And all I have to say is, you know, in terms of offers, okay, that's a fairly generous offer that Judge Makino made you in this case. And so, you know, I can pretty much assure you that in terms of an offer, I would not be willing to undercut Judge Makino. If anything, I might be willing to accept the offer that he made to you at that time . . . but it doesn't matter . . . . [I]f you decide after you've thought about it that you don't want the offer, that's fine. I'm not here to try to in any way, shape, or form try to get you to plead guilty. Okay? That's not what my goal is. What I don't want to see happen is you being shocked if you're convicted at the end of a trial with a sentence that is substantially greater than the seven years. Okay? That's all I wanted to say at this point."
The following day, defendant's counsel informed the court that defendant had rejected "the court's offer" and would be proceeding to trial. After trial, the court sentenced defendant to 14 years in state prison as follows: (1) two years for the robbery, doubled to four years for the prior conviction; and (2) a consecutive term of 10 years for the firearm enhancement (§ 12022.53, subd. (b)). The court dismissed the five-year prior serious felony enhancement. (§ 667, subd. (a).)
B. Analysis
At the outset, we note the People argue defendant forfeited her claim by failing to object to the court's imposition of the 14-year term. While this argument may have surface appeal, defendant's claim fails even if we consider its merits.
A defendant may not be penalized for exercising his or her constitutional right to a jury trial. (In re Lewallen (1979) 23 Cal.3d 274, 278 (Lewallen).) Likewise, a trial court "'may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.'" (People v. Clancey (2013) 56 Cal.4th 562, 575.) While a trial court cannot engage in plea bargaining, it may give the defendant an indicated sentence. (Id. at pp. 569-570.) An indicated sentence reflects "the trial court's considered judgment as to the appropriate punishment in the case, regardless of whether [the] defendant is convicted by plea or at trial . . . ." (Id. at p. 576.) "[A]n indicated sentence is not a promise that a particular sentence will ultimately be imposed at sentencing." (Ibid.) Indeed, "[t]he development of new information at sentencing may persuade the trial court that the sentence previously indicated is no longer appropriate . . . . Or, after considering the available information more carefully, the trial court may likewise conclude that the indicted sentence is not appropriate." (Ibid.)
Here, defendant concedes the court was, presumptively, not engaging in improper plea bargaining. Defendant also acknowledges the court's disclosure of an indicated sentence did not mean her final sentence would necessarily be seven years. But she asserts she was entitled to believe the court considered the seven years as the intended sentence unless the court learned new information after trial. Not true. As discussed, ante, the court could conclude the indicated sentence was inappropriate after considering the available information more carefully. (People v. Clancey, supra, 56 Cal.4th at p. 575.)
Regardless, while a trial court cannot impose a harsher sentence as punishment for the defendant's exercise of his or her jury trial right, "[t]here must be some showing, properly before the appellate court, that the higher sentence was imposed as punishment for exercise of the right." (People v. Angus (1980) 114 Cal.App.3d 973, 989-990.) In the instant case, there is no indication the court sought to penalize defendant for exercising her right to a jury trial. The court's comments also do not suggest any vindictiveness. Indeed, the court imposed the low-term of two years for the robbery, which was doubled to four years for the prior conviction, because the court found "the robbery itself was not particularly aggravating." The court also explained no one was injured, the monetary taking was not great, and the victims were involved in the illegal gambling operations of the café. The court further noted it appeared the victims were not "particularly emotionally traumatized" because they waited around 45 minutes to call the police. But the court considered defendant's background to be "an aggravating factor" and determined it would be inappropriate to strike defendant's prior strike. Given the jury's findings on the firearm enhancement, the court also imposed a consecutive 10-year term for the enhancement.
Because "the sentencing judge did not say anything reasonably giving rise to the inference that he was penalizing defendant for exercising [her] right to jury trial," we find no reason to reverse. (People v. Szeto (1981) 29 Cal.3d 20, 35.) "The mere fact . . . that following trial defendant received a more severe sentence than [she] was offered during plea negotiations does not in itself support the inference that [she] was penalized for exercising [her] constitutional rights." (Ibid.)
In re Lewallen, supra, 23 Cal.3d 274, which defendant cites, is inapposite. In Lewallen, our Supreme Court concluded the trial court made two statements demonstrating the sentencing was influenced by the defendant's refusal to accept a proffered plea bargain. (Id. at p. 277.) First, defense counsel suggested placing the defendant on informal probation would suffice, and the trial court responded, "'You mean whether or not there's a disposition or not after a jury trial?'" (Ibid.) Second, after sentencing, the judge stated, "'I think I want to emphasize there's no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody's time, and what's he got to lose. And as far as I'm concerned, if a defendant wants a jury trial and he's convicted, he's not going to be penalized with that, but on the other hand he's not going to have the consideration he would have had if there was a plea.'" (Ibid.)
Unlike the trial court in Lewallen, the court in the instant case did not make any similar comments about defendant's decision to go to trial. Instead, the court provided a detailed explanation for its sentencing choices. Nothing in the record suggests the court punished defendant for exercising her right to go to trial.
Senate Bill No. 81 Does Not Apply
Finally, defendant argues the matter should be remanded for resentencing in light of Senate Bill No. 81. We disagree.
Effective January 1, 2022, Senate Bill No. 81 amends section 1385 by adding a new subdivision (c). The newly amended statute provides: "Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1).)
Here, the parties disagree as to whether Senate Bill No. 81 applies retroactively to defendant's case. The plain language of the statutes states: "This subdivision shall apply to all sentencings occurring after January 1, 2022." (§ 1385, subd. (c)(7), italics added.) By its own terms, subdivision (c) applies prospectively, after January 1, 2022, the effective date of Senate Bill No. 81. Because defendant was sentenced on June 11, 2021, Senate Bill No. 81 does not apply. (People v. Flowers (2022) 81 Cal.App.5th 680 [holding Senate Bill No. 81 did not apply where the sentencing hearing was held in May 2021].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.