Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA291706. Ann I. Jones, Judge. Affirmed.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Kenneth J. Kao, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Josue Salcedo was convicted, following a jury trial, of five counts of robbery in violation of Penal Code section 211 and five counts of assault with a semiautomatic firearm in violation of section 245, subdivision (b). The jury found true the allegation that appellant personally used a firearm in the commission of the robberies within the meaning of section 12022.53, subdivision (b). The jury did not reach a verdict on the allegations that the crimes were committed for the benefit of a criminal street gang within the meaning of section 186.22. The jury also found true the allegations that appellant used a firearm within the meaning of section 12022.5. The trial court sentenced appellant to a total of 40 years and 4 months in state prison based on the assault convictions. The trial court selected the upper term of nine years for the count 2 assault conviction plus a 10-year enhancement term for the section 12022.5 allegation. The court sentenced appellant to two years (one-third the mid-term) for each of the remaining four assault convictions, plus an enhancement term of three years and four months for each of the accompanying firearm allegations. The court stayed sentence on the robbery convictions pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the count 1 conviction for the Pereria robbery and that the trial court erred in failing to instruct the jury on the lesser included offense of theft for that count. He further contends that his counsel was ineffective in failing to object to certain testimony by the prosecution's expert witness and that the trial court's selection of the upper term violated his right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. We affirm the judgment of conviction.
Facts
In the early morning hours of February 21, 2005, appellant committed a series of armed robberies at five 7-Eleven stores in Los Angeles.
About 2:50 a.m., appellant entered a 7-Eleven at 52nd and North Figueroa, got a carton of milk and took it to the counter. He gave the cashier, Jesus Chaidez, a $10 bill. Once Chaidez opened the cash register, appellant pulled out a gun, pointed it at Chaidez and asked for the money in the cash register. Appellant also asked Chaidez to give him bottles of wine, cigarettes and an instant camera. Chaidez described appellant as "nervous" during the incident.
Surveillance video was obtained of this robbery. The video was played for the jury. Part of the video showed a black car pull into the driveway of the 7-Eleven and wait while appellant was inside. The car was about 50 yards from the entrance to the 7-Eleven during the robbery. In Detective Villasenor's opinion, the men in the black car were gang members. When appellant left the 7-Eleven, the car followed him. Appellant did not have any contact with the car while it was on the surveillance video. There was no evidence that the black car was at any of the other robberies.
About 3:05 a.m., appellant entered a 7-Eleven store at 4220 Eagle Rock Boulevard, got a carton of milk and took it to the cashier, Florencio Padilla. As Padilla was ringing up the sale, appellant pulled out a gun, cocked it and pointed at Padilla's head. Appellant asked: "Where are you from?" Padilla responded that he did not belong to a gang. Appellant said "Big Avenues" and demanded the money in the cash register, saying "If you don't do it quickly, I'll blow your head off." Padilla gave appellant the money.
About 4:15 a.m., appellant entered a 7-Eleven at 5076 Sunset Boulevard, got a soda and took it to the cashier, Eduardo Nanasca. When Nanasca opened the cash register, appellant pulled out a gun, pointed it at Nanasca's chest, and demanded money from him. Appellant had his finger on the gun's trigger. Nanasca put the money from the cash register on the counter. Appellant took it.
About 4:35 a.m., appellant entered a 7-Eleven at 6660 Sunset Boulevard, took a container of orange juice to Juan Gutierrez, the cashier, pulled out a gun and pointed it at him and demanded money. Gutierrez gave appellant money.
About 4:45 a.m., appellant entered a 7-Eleven at 7040 Sunset Boulevard and took a carton of milk to the cashier, Weliwattege Pereria. When Pereria scanned the milk, appellant took out a gun, pointed it at Pereria and demanded money. Pereria froze. Appellant told him to get his co-workers to the front counter. He did, and they began getting the money out of the cash registers. Appellant looked out the window and said "That's o.k." He took the milk, said "Thank you," and left the store. He did not take any money. When Pereria looked outside, he saw that appellant had been taken into custody by police.
Police officers found a semi-automatic .22 caliber handgun in appellant's waistband. The gun had one bullet in the chamber and three in the magazine. Appellant was wearing a belt with a buckle bearing the letter "A" on it, and a sweatshirt which said "Los Angeles" and "L.A." on it. The officers did not see anyone other than appellant at the scene of this last robbery. Appellant told the officers that no one else was involved. Officers found $79 in cash in the glove box of appellant's van, $166 under the front seat and $78.25 in appellant's wallet.
Officer Eric Hurd testified as a gang expert. Officer Hurd testified that the first two robberies occurred in territory claimed by the Avenues gang. This gang has about 200 to 300 active members and uses the letter "A" as a common sign for the gang. In addition, they use the Oakland A's and Los Angeles Dodgers as symbols of the gang. The gang name in Spanish is Las Avenidas, which is abbreviated "L.A."
The People alleged that the robberies were committed for the benefit of a criminal street gang within the meaning of section 186.22. The jury hung on these allegations.
Officer Hurd initially thought that the robberies committed by appellant were an initiation into the Avenues gang. He later learned that a June 7, 2000 filed identification card reported that a "Joshua" Salcedo whose home address matched that of appellant's mother, had been a member of the Avenues gang for six months. Officer Hurd then believed that the robberies were committed for the benefit of the gang. Appellant did not have any gang tattoos, was not listed in the Cal Gangs Database, and at the time of the robberies did not live in Avenues' territory.
Detective Elias Villasenor believed that the robberies were a gang initiation (or re-initiation). Detective Villasenor acknowledged that gangs coerce people to commit crimes, but did not believe that appellant's behavior was consistent with coercion.
Appellant testified in his own defense. He stated that although he had hung around with Avenues gang members, he was not himself a gang member.
On February 21, 2005, appellant was visiting his family, who lived on Avenue 32. He took his mother's car to get something to eat. When he stopped at a gas station, a black car approached his car. Miguel Sillas and two other members of the Avenues gang approached him. Sillas, whose gang name was "Creeper," demanded money from appellant. When appellant replied that he did not have any money, Creeper pulled out a gun, pointed it at appellant's head and said: "Well, if you don't get me money, it's that easy to kill you." Creeper told appellant: "We're going to rob people." Appellant was afraid and believed that Creeper and his fellow gang members would kill him or his family if he did not comply.
Creeper gave appellant a gun and the sweatshirt which appellant wore during the robberies. Appellant thought the gun did not work.
After the second robbery, Creeper pulled appellant over, gave him another sweatshirt and told him that he had to commit more robberies. Creeper said that he and his friends would be watching appellant. Creeper took the proceeds of the first two robberies from appellant.
When he was arrested, appellant did not tell police that he was forced to do the robberies because he was still afraid that he or his family would be killed. The "A" on his belt buckle stood for his father's name, not the Avenues gang. Appellant liked to wear oversized clothing because it made him look bigger.
Appellant also offered the testimony of Steven Strong as a gang expert. In Strong's opinion, the robberies were not a re-initiation into the Avenues gang because the time elapsed since the 2000 field contact was too long for a re-initiation. Strong did not believe that appellant had been an active gang member in the interim because he believed that it was unlikely that appellant would go undetected by police for so long.
Strong also opined that gangs sometimes force individuals to do things against their will. Snitching is the biggest crime a gang member can commit within a gang. Gangs will go after a family member if they cannot find the person who snitched.
Discussion
1. Sufficiency of the evidence
Appellant contends that there is insufficient evidence to show that he took milk from the final 7-Eleven by fear or force. We do not agree.
Section 211 provides: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."
A defendant "must form the intent to steal before or during rather than after the application of force to the victim, and that the defendant must apply the force for the purpose of accomplishing the taking." (People v. Bolden (2002) 29 Cal.4th 515, 556.)
Appellant contends that his use of force or fear was not directed at taking a carton of milk and that he used no force to take the milk. He contends that he abandoned the robbery when he said: "It's o.k. Thank you." According to appellant, he then merely walked out of the store with the milk without using any fear or force. He concludes that he committed only theft, not robbery.
In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.)
Here, Pereria testified that appellant pulled the gun out while Pereria was scanning the milk. Appellant demanded money. Appellant then noticed Pereria's co-worker in another part of the store and told Pereria to call him over. When Pereria's co-worker came over, the gun was below the counter. While Pereria and the co-worker were trying to get the registers open, appellant said: "It's o.k. Thank you." He took the milk and left.
There is no evidence that appellant put away the gun before taking the milk. Viewing the evidence in the light most favorable to the judgment, the taking of the milk thus occurred while appellant was still pointing the gun at Pereria and thus still applying force. This is sufficient evidence to support the robbery conviction. Assuming for the sake of argument that the evidence showed that appellant had put the gun into his waistband before taking the milk, he had already instilled fear in Pereria by displaying the gun, and thus was able to take anything he wanted from the store without resistance from the store employees.
To the extent that appellant contends that his above-quoted statement shows that he abandoned his intent to use fear or force, we do not agree. It shows only that he changed his mind about the specific property he intended to take, not that he abandoned his intent to steal.
2. Lesser included offense of theft
Appellant contends that the trial court erred in refusing his request for an instruction on the lesser included offense of theft. We see no error.
"[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence and that, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present, the failure to instruct on a lesser included offense, even in the absence of a request, constitutes a denial of that right. [Citation.] '"'Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.'"' [Citation.]" (People v. Benavides (2005) 35 Cal.4th 69, 102.)
Theft is a lesser included offense of robbery. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) Robbery contains the additional requirements that the taking be from the victim's person or immediate presence, against his will, and that it be accomplished by the use of force or fear. (People v. Marquez (2000) 78 Cal.App.4th 1302, 1308.)
Here, there is no evidence raising a question as to whether appellant took the milk by fear or force. Appellant's statement at most indicated that he no longer intended to take the cash. Nothing in his statement suggests that he was eschewing any further use of force. Appellant still had his gun after making the statement. There was no reason for Pereria to believe that appellant would not use the gun if necessary. Appellant clearly retained his intent to steal, because he promptly took the milk and left the store.
Appellant's reliance on People v. Webster (1991) 54 Cal.3d 411 and People v. Ledesma (2006) 39 Cal.4th 641 is misplaced. Both cases are death penalty cases involving a robbery special circumstance allegation. The requirements for proving a special circumstances allegation in a murder case are not particularly relevant to a robbery which involved no physical contact with a victim. More importantly, in both cases cited by appellant, there was evidence that the defendant did not form his intent to steal until after the victim had been killed and was therefore unable to feel fear or respond to force. Here, the evidence shows only that appellant changed his mind about the specific property he intended to take, and that he took that property while the victim was still able to feel fear and respond to force.
In Webster, the defendant himself so testified. (People v. Webster, supra, 54 Cal.3d at p. 443.) In Ledesma, "[t]he prosecution's witnesses testified that defendant had stated before the killing that he wanted to kill the victim out of revenge and to prevent his testimony, but there was no reference to robbing him. None of the evidence related to the admissions made by defendant after the killing mentioned any intent to steal the victim's property." (People v. Ledesma, supra, 39 Cal.4th at p. 715.)
3. Ineffective assistance of counsel
Appellant contends that his counsel's failure to object to certain expert testimony by Detective Villasenor concerning coercion constituted ineffective assistance of counsel.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "'"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
When an appellant makes an ineffective assistance claim on appeal, we look to see if the record contains any explanation for the challenged aspects of the representation. If the record is silent, then the contention must be rejected "'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation' [citation]." (People v. Haskett (1990) 52 Cal.3d 210, 248.)
Expert opinion testimony is admissible when it is related to "a subject that is sufficiently beyond the common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) Expert testimony which is otherwise admissible may embrace the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.) We find the behavior of a person committing a crime under coercion to be beyond the common experience. Expert testimony on this subject would be useful to a jury.
Appellant contends that Detective Villasenor's testimony went beyond the permissible parameters of expert testimony and amounted to nothing more than an improper expression of his general belief as to how the case should be decided. He objects to the following testimony given by Detective Villasenor on redirect:
Appellant also contends that Detective Villasenor was not qualified to testify as an expert on crimes committed under coercion. The detective testified that he had investigated at least three crimes which were committed under duress. This experience, together with the detective's many years of police work, was sufficient to qualify him as an expert on this topic.
Prosecutor: "Detective, now if a person were coerced, were made to commit a crime that they didn't want to commit, is it possible that they could just lift up their sweatshirt and show the butt of the gun?"
Detective Villasenor: "Correct."
Prosecutor: "So now, the fact that in these situations the defendant actually took the gun out and pointed it at someone, would you say that those actions go beyond a person who's committing a crime against his will?"
Detective Villasenor: "Yes."
Prosecutor: "Okay. And now perhaps you could explain your opinion as it relates to all five of these crimes?"
Detective Villasenor: "Well, as the video indicates, you had the individual grabbing the gun, pointing it at the clerk. [¶] In the video you could see where his finger is actually on the trigger. If he was coerced, if he didn't want to do it, if he was pressured to do it, the finger would be off the trigger. Because you're not really intending to shoot anybody. You only have that finger on that trigger if you're willing to shoot somebody, whether they're going to harm you or whether you're taking out any type of a crime. [¶] The mere fact that the finger is on the trigger, and some of the witnesses have testified that the finger was on the trigger, it's ready to go. [¶] Mr. Padilla described cocking the gun. If he's not really willing to commit a robbery or not willing to do anything or harm anybody, there's no reason to cock the lever back to chamber a round and then have it pointed at you ready to go or ready to be fired."
"'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth."' [Citations.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947.) "Obviously, there is a difference between testifying about specific persons and about hypothetical persons." (Id. at p. 947, fn. 3.) For example, expert testimony is proper when it focuses on what gangs and gang members typically expect and not on the defendant's subjective expectation. (Id. at p. 947.)
We see nothing improper about the first opinion given by Detective Villasenor concerning coercion, which was given in response to a hypothetical. In that testimony, the detective agreed that "if a person were coerced, . . . [it is] possible that they could just lift up their sweatshirt and show the butt of the gun."
The next opinion given by Detective Villasenor wandered between the hypothetical and the particular. Detective Villasenor's testimony that cocking a gun and putting one's finger on the trigger indicated a willingness to use the gun was primarily a hypothetical. For example, he testified: "You only have that finger on that trigger if you're willing to shoot somebody." This was proper and useful expert testimony. The detective's testimony then became particular, as he opined that appellant's actions went "beyond a person who's committing a crime against his will" and also that if appellant "was pressured to do it, [his] finger would be off the trigger." This was not proper expert testimony.
The final part of the detective's testimony concerned appellant's demeanor and was simply cumulative. He testified that appellant did not demonstrate any fear or hesitation on the surveillance video.
Counsel is not required to make futile objections. (People v. Price (1991) 1 Cal.4th 324, 386-387; People v. Ochoa (1998) 19 Cal.4th 353, 427-428.) Thus, counsel's failure to object to the proper testimony about lifting up a sweatshirt and the general willingness to use a gun was not deficient performance.
Our Supreme Court has repeatedly pointed out that "'[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 443.) Here, the videotape testimony was merely cumulative. It may have been sound strategy for counsel to object to the testimony. Detective Villasenor did not claim any particular expertise in understanding body language, however, and the jury was capable of drawing its own conclusion from viewing the videotape. Thus, it was also sound strategy not to object in order to avoid calling attention to the testimony. The choice between such sound strategies is particularly in the province of trial counsel and not this court.
Similarly, it may have been sound strategy to object to the detective's testimony that appellant's handling of the gun was not consistent with being coerced. The testimony could easily have been rephrased as a proper hypothetical, however. Thus, it was also sound strategy not to object in order to avoid a repetition of unfavorable testimony.
Further, even if we were to assume that all of the above testimony by Detective Villasenor was improper and that appellant's counsel was deficient in failing to object to that testimony, we would see no reasonable probability that appellant would have a more favorable outcome if counsel had objected.
Appellant was able to present his own gang expert, Steven Strong. Appellant's coercion claim was weak at best. Apart from appellant's testimony, there was no evidence to support the claim. Appellant's own testimony on the subject had a number of contradictions. The jury was able to view a videotape of one of the robberies and therefore had an excellent basis on which to determine whether appellant was nervous, hesitant, and trying to get caught or confident, threatening and willing to commit the robberies.
4. Upper term
Appellant contends that the trial court's imposition of the upper terms for the count 2 assault conviction and the accompanying section 12022.5 enhancement violates his right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]. While appellant's case was pending on appeal, the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. At our request, the parties submitted letter briefs addressing the effect of People v. Black, supra, and People v. Sandoval, supra. Appellant maintains his contention that his sentence violates the Sixth Amendment. We see at most harmless error.
In Cunningham, supra, the U.S. Supreme Court held that California's procedure for selecting an upper term violated a defendant's Sixth and Fourteenth Amendment rights to jury trial because it gave the judge, not the jury the authority to find facts that exposed a defendant to an elevated upper term sentence. The Court explained that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].)
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
The Court has also explained that the exception for a prior conviction should not be read too narrowly. This exception includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (People v. Black, supra, 41 Cal.4th at p. 819.) Examples of related issues which fall within the exception are whether the convictions are numerous or of increasing seriousness. (Id. at pp. 819-820.)
Here, the trial court gave the following as aggravating factors: (1) the crimes involved a threat of great bodily harm because appellant had a loaded gun; (2) the victims were vulnerable; (3) the crimes were carried out with planning and sophistication in that they involved a distinctive modus operandi; (4) the crimes constituted a serious danger to society because they involved a semiautomatic weapon; and (5) appellant's crimes were of increasing seriousness.
Respondent contends that the fact that appellant's crimes were of increasing seriousness is a constitutionally valid factor. Appellant contends that this factor is invalid because the trial court relied on juvenile offenses which, unlike adult convictions, were not found true by a jury. Appellant also contends that a separate, constitutionally valid aggravating factor was required to support the imposition of the upper term on the enhancement. We will assume for the sake of argument that appellant is correct.
We would find any error in failing to submit these factors to the jury to be harmless. We conclude beyond a reasonable doubt, that "the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true" the factors that the crimes involved a threat of great bodily harm because appellant had a loaded gun and were carried out with planning and sophistication in that they involved a distinctive modus operandi, had those factors been submitted to the jury. (People v. Sandoval, supra, 41 Cal.4th at p. 839.)
Appellant contends that the Court in People v. Black, supra, reads the prior conviction exception too broadly and so is inconsistent with Apprendi v. New Jersey (2000) 530 U.S. 466, which forms the basis for the prior conviction exception noted in Cunningham, supra. We do not agree, but more importantly, we are bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.
We concur: MOSK, J, KRIEGLER, J.