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People v. Sanchez

Court of Appeals of California, Fifth Appellate District.
Nov 3, 2003
No. F040438 (Cal. Ct. App. Nov. 3, 2003)

Opinion

F040438.

11-3-2003

THE PEOPLE, Plaintiff and Respondent, v. VICTOR SANCHEZ, Defendant and Appellant.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.


Appellant Victor Sanchez entered into a negotiated disposition and pleaded guilty to counts II (robbery) and VII (burglary), and admitted a Penal Code section 12022, subdivision (d) enhancement, on condition he serve no more than nine years in state prison. The court granted the prosecutions motion to dismiss the remaining charges and allegations. Earlier, the court had denied appellants motion to suppress evidence. The trial court sentenced appellant to an aggregate term of four years four months in state prison: as to count II, the court imposed the midterm of three years, with a consecutive term of 16 months (one-third the midterm) for count VII. The court also imposed two years for the section 12022, subdivision (d) enhancement for count II, but ordered that term stricken.

Further statutory references are to the Penal Code unless otherwise noted.

On appeal, appellant contends the trial court improperly denied his motion to suppress because it struck his entire testimony when he refused to answer certain questions on cross-examination, and the court erroneously imposed consecutive terms. We disagree and affirm the judgment.

FACTS

Sometime after 4:00 a.m. on September 3, 2001, Sunami McCorvey was working at the Del Taco restaurant on White Lane in Bakersfield when he received a telephone call. A man stated there were people outside the restaurant who were spray-painting graffiti on the building. McCorvey opened the back door and was immediately confronted by two individuals dressed in dark clothing. One individual was a thin Hispanic female in her early 20s, wearing a hooded sweatshirt and sunglasses, approximately five feet six inches tall, and carrying a gun. The other individual was a Hispanic male in his 20s, approximately six feet one inch tall, weighing approximately 270 pounds, wearing dark clothes and white tennis shoes.

The facts are taken from the preliminary hearing and the suppression motion testimony.

The two suspects forced McCorvey into the building at gunpoint. They ordered him to get down, and the male suspect stood over McCorvey while the female suspect jumped over the counter. She grabbed Joseph Figures, another employee, and asked him the location of the safe. She ordered Figures to open the safe and she removed the currency. The two suspects then ordered the employees into the freezer, and they left the restaurant.

At approximately 4:19 a.m., Bakersfield police officers responded to a dispatch of an armed robbery in progress at Del Taco. Officer Garcia arrived at the scene. He observed two people in dark clothing in the restaurants parking lot, walking toward a dark sports utility vehicle (SUV). As the two suspects approached the SUV, the vehicles lights flashed on and off. Based on these observations, Officer Garcia believed a possible third suspect was in the vehicle, and he broadcast that information to the backup officers.

Officer Garcia continued to watch the SUV as it left the restaurants parking lot and headed west toward the nearby Howard Johnson motel. Officer Lyle Martin also arrived and established a perimeter about 150 yards west of the restaurant, near the Howard Johnson motel. Officer Martin observed a black Chevrolet Blazer, which was backed into the south side of the motels parking lot. Martin observed a person emerge from the motels breezeway and get into the Blazer. The Blazer pulled out of the motels parking lot, without headlights, and headed west. Martin observed at least two people in the Blazer. The Blazer drove along the south side of the motel, and then turned north into a residential area.

Officers Ward and Newman stopped the Blazer near Planz Road and Mesa Grande, about one mile from the Del Taco restaurant. The officers found Pablo Camarillo driving and Valerie Moz in the front passenger seat, and took them into custody. There was a cellular telephone in the car, and the memory function indicated that it had been used to call the restaurant. There was no weapon in the car. The police transported McCorvey and Figures to the scene and they identified Moz and Camarillo as the robbery suspects. The officers later found a sweatshirt and the stolen currency in the motel laundry room.

Officer Heredia investigated the restaurant and found two different sets of footprints on top of the restaurants stainless steel counter. One set of prints was the distinctive "Converse All Star," which seemed to be interlinked with waffle-type prints. Valerie Mozs shoes appeared to match some of the shoe prints on the restaurants counter.

McCorvey and Figures told the officers that a third suspect had possibly been involved in the restaurant robbery and acted as the driver of the getaway car. Officer Garcia also suspected a third individual was involved, based on his observations of the flashing lights on the black SUV as the two suspects walked toward it. Based on this information, several officers continued to drive around the neighborhood to look for the robbery weapon or any suspicious activity, even though they had already arrested Camarillo and Moz.

At approximately 6:25 a.m., Officer Slayton was driving through a residential area about a quarter mile northwest of Del Taco, when he saw appellant Victor Sanchez standing on the street in the 3000 block of Jorie Way. Slayton "felt he may be involved. It wouldnt hurt to talk to him." Slayton testified he got out of his patrol car and approached appellant, and noticed he was sweating. Appellant immediately turned away, walked up to the front door of a residence, and knocked. Slayton asked appellant where he came from, and appellant replied from the Howard Johnson motel. Officer Slayton was surprised that appellant walked from the motel and was not seen by the numerous police who were circulating in the area.

Officer Slayton asked why appellant was in the area and if he had seen anything regarding the restaurant robbery. Appellant said he was at the house on Jorie Way to meet somebody to go to work. Slayton was suspicious because it was the Labor Day holiday. Appellant said he was supposed to meet "Jack" at the residence.

Slayton never told appellant he was not free to leave and did not pull or display his weapon. Appellant never asked if he could leave or indicated he wanted to leave. "Actually, he initially wanted to stay because he was adamant that he was there to meet somebody to go to work. So he was wanting to remain there." Slayton described their conversation as "consensual" and he was "just standing there talking to him. Nobody was blocking him. We were just standing there."

At the house where appellant had been standing, Slayton contacted the resident, who stated she did not know appellant or the person he claimed to be meeting. Slayton knew the robbery witnesses described the male suspect as about six feet one inch tall, weighing 270 pounds. Slayton realized appellants physical appearance matched the witnesses description of the male robbery suspect "to a tee. He was the same size, about the same build, Hispanic male, pretty big guy." Slayton believed appellant was about the same height and weighed 250 to 260 pounds.

Appellant remained on the street while Slayton spoke to the resident. Slayton did not tell appellant to wait there, and appellant remained on the street and spoke with Slaytons partner. "We were having a conversation." As they talked, three more officers arrived "just to see what we were doing." Officer Heredia inspected appellants shoes but the tracks did not match the prints on the restaurants counter.

Officer Slayton told appellant the resident did not know him. Appellant said his grandmother had dropped him off at that location and then went to work, he did not have a contact number for the labor company that sent him, and he did not know why the resident did not know him. Slayton asked to see his identification, but appellant did not have any and "flip-flopped his story as to why he still believed that house was where he was supposed to meet his friend."

Slayton asked appellant if he would be willing to accompany him to the police station to clear up his identification, and appellant agreed. Slayton testified he did not place appellant under arrest, but placed him in handcuffs as a matter of officer safety because appellant was going to be seated in the patrol car behind Slayton.

When they arrived at the police station, Slayton immediately removed appellants handcuffs and they sat in the lounge area and talked. Slayton bought appellant a candy bar and gave him something to drink. The officers took appellants fingerprints to confirm his identity. The police contacted appellants mother to confirm appellant had been driven to the location by his grandmother. The mother stated appellants grandmother was in Yosemite for the week and appellant had not seen the grandmother for over a year. Slayton informed appellant about his mothers statement, and appellant became agitated and claimed his mother would lie just to get him in trouble.

In the meantime, the police received information there had been a burglary that morning in the 3000 block of Jorie Way. An officer entered the lounge and informed Slayton about the burglary. Appellant heard this information and became visibly upset and "started kind of tearing up." Appellant then told Slayton he had been involved in the Del Taco robbery that morning. Appellant stated he was in the car when the crime was planned, and he drove the car around the area during the actual robbery. Appellant denied that he entered the restaurant. Appellant claimed another person, "Danny Boy," held a knife to him and threatened to kill him if he did not participate in the robbery. Appellant gave a vague description of where they left the gun.

Officer Slayton allowed appellant to go home because he was being cooperative and claimed he was forced to participate in the robbery. Appellant asked for a ride and another officer drove him home. After appellant left, the police conducted an investigation of the burglary on Jorie Way. The resident stated that someone had entered the garage and taken some clothes. The stolen clothes matched the description of the clothing worn by appellant when Slayton found him, including a distinctive cap which appellant left behind in the police departments lounge. The police entered the residences garage and found a pair of dark sweatpants and white Converse All Star athletic shoes.

Based on the burglary investigation, the police arrested appellant later that day and seized the clothes he had been wearing. Officer Heredia later observed appellant, and his physical appearance was consistent with the witnesses description of the male suspect. Appellant later claimed "Danny Boy" forced him to enter the garage and change clothes. The police subsequently determined there was no other suspect who threatened appellant, and they never found the gun.

DISCUSSION

I. The courts rulings on the suppression motion

Appellant contends the trial court improperly denied his motion to suppress evidence because it decided to strike his entire testimony at the suppression hearing. As will be set forth below, defense counsel repeatedly objected to the prosecutors cross-examination of appellant at the suppression hearing, and argued the prosecutors questions exceeded the scope of his direct examination. The court ordered appellant to answer the questions but defense counsel refused to let him answer; the court ordered appellants entire testimony stricken. Appellant contends the courts ruling improperly required him to choose between his Fourth Amendment right to seek suppression of evidence and his Fifth Amendment privilege against self-incrimination.

The resolution of this issue requires an examination of the suppression motion and the evidentiary hearing. Appellant argued in his motion that Officer Slayton had no reasonable grounds to detain him on Jorie Way, ask him questions about his presence, contact the resident and ask if she knew appellant, transport appellant to the police department, or ask him additional questions about his actions. Appellant contended the police had already arrested the two suspects in the black SUV, who were identified by the restaurant employees, and there was no reasonable ground to detain him for any reason. Appellant sought suppression of the clothes and white shoes he was wearing that day, along with his statements, the officers observations, and any evidence subsequently discovered as a result of the detention.

As set forth ante, the testimony at the suppression hearing addressed the restaurant robbery, the officers observations at the scene, the apprehension of two suspects in the black SUV, and the officers suspicions that another suspect was involved.

Officer Slayton testified as a prosecution witness about his contact with appellant on the street, his transportation to the police department, and their conversation in the lounge. On direct examination, Slayton testified without objection as to appellants statements on Jorie Way, their conversation at the police department, appellants reaction to hearing about the burglary on Jorie Way, appellants admission that he was involved in the restaurant robbery, and his claim that "Danny Boy" forced him to participate. Defense counsel did not object to Slaytons testimony about appellants statements.

On cross-examination, defense counsel questioned Slayton as to why he allowed appellant to leave after he admitted his involvement in the restaurant robbery:

"Q. Okay. I mean, he told you he was there, he was involved in the robbery; is that right?

"A. He stated that he was in the vehicle and the fictitious subject, Danny Boy, had held a knife to him and told him that if he ran he would kill him. He stated his involvement was forced by this subject, and he later stated that when they were in the garage at 3000 Jorie, Danny Boy was the one who had changed clothes and left, handing [appellant] the clothes."

"Q. Okay. I mean, he said he was in the car, he was in the car when he planned it, told you how it was done; is that correct?

"A. Pretty much.

"Q. Told you where the gun was; isnt that right?

"A. He told us a vague area. It ended up not being where he told us it was. Vaguely.

"Q. But in any event, he told you enough that he certainly implicated himself in the conspiracy to commit this robbery even though he didnt directly place himself in — actively in the robbery; is that fair to say?

"A. Thats correct."

"Q. I mean, you let him go simply because he said somebody named Danny Boy made him do it?

"A. No. We let him go based on the information that he was giving us was truthful enough for us to believe; however, there were discrepancies. We knew where he was staying; we knew where he lived. And at the time we felt it would be better to have him cooperative than to burn somebody ...."

Defense counsel also cross-examined Slayton about his initial contact with appellant on Jorie Way. Slayton testified appellant was sweating, he said his grandmother dropped him off, he walked from the motel to Jorie Way, and he was contacting somebody about a job. "He provided me with specific answers that didnt work out."

"Q. When you say it didnt work out, I mean, he simply said he was there to get a ride to go to work; is that correct.

"A. He said he was there looking for somebody, a specific person; however, nobody was answering the door. He said he had walked down that main street from the Howard Johnsons during the time that we had a robbery when there were 15 plus officers and nobody had contacted him. But I know myself, I drove down that street several times and didnt see anybody walking.

"Q. Okay. Which may have meant he was lying about where he came from; is that correct?

"A. I think he was lying about several things."

Appellant testified on his own behalf at the suppression hearing. On direct examination, defense counsel reviewed appellants constitutional rights and informed him that he still had the right to remain silent, even for the suppression motion.

"Q. Do you understand if you answer my questions about what occurred at the time of the arrest, you do then have to answer the district attorneys questions and the judges questions, if they have questions for you? Im sure the district attorney will. Do you understand that?

"A. Correct."

Appellant testified about Officer Slaytons contact with him on Jorie Way, and claimed that Slayton placed his hand on his weapon and ordered appellant to step away from the house. Appellant felt he had to comply with Slaytons orders and answer his questions about why he was in the area. Appellant also complied with Slaytons orders to raise his feet to examine his shoe prints. Appellant testified additional officers arrived and surrounded him at the curb, and ordered him to raise his hands while a patsearch was conducted. Appellant was ordered to sit down on the curb, and he was placed in handcuffs and ordered into the patrol car.

Appellant testified an officer accused him of lying and asked for his mothers telephone number.

"I sat there just — Id say about another ten minutes. I sat in the back of the [patrol] vehicle, and I asked one of the officers, why am I still in the vehicle? Can I leave? I have to go to work. And they said, no, you dont. The reason why youre here is youre under no belief and whatnot. And so what happened is they asked me — they told me that were going to go downtown because I have no identification, and the reason for me being in the area is unknown, and Im there."

Appellant was again questioned at the police department and finally allowed to leave after several hours. Appellant was going to call for a ride but an officer escorted him home.

The following sequence of questions was asked by the prosecutor on cross-examination. The prosecutor asked whether appellant walked up to the Jorie Way house, and why he knocked. Appellant replied he was looking for a carpool ride.

"Q. And, sir, didnt you admit to officers later that that was a big lie?

"[DEFENSE COUNSEL]: Objection as to relevance.

"[THE PROSECUTOR]: It is relevant. He lied completely to the

"THE COURT: Overruled. Go ahead.

"Q. [THE PROSECUTOR] Okay. So youre saying you were there for a carpool ride?

"A. Yes, maam.

"Q. So you didnt tell officers later that, in fact, you had been involved in the robbery and this had nothing to do with the carpool ride?

"[DEFENSE COUNSEL]: Im going to object as to relevance, beyond the scope.

"[THE PROSECUTOR]: I need to probably speak to [defense counsel]. This goes to some additional issues that may or may not become important beyond this motion.

"[DEFENSE COUNSEL]: I dont have a — just so its clear. Im conceding that he lied to the officers as to why he was there.

"THE COURT: I dont care so much about whether he lied to the officers as I want to know whether Im getting the truth on the stand right now. That is at issue."

The court took a brief recess for the parties to confer.

When the hearing resumed, the prosecutor asked appellant why he was headed to the house on Jorie Way that morning. Defense counsel objected "as to relevance again. I just dont see how this is relevant to the issue of detention. Its not relevant to what he was actually doing. Its only relevant what the officers saw, what the officers believed as the basis for the detention in this particular case." The court overruled the objection "for the reasons I gave just a minute ago." Appellant answered that he wanted to see about a carpool ride.

The prosecutor next asked why appellant was there at the house on Jorie Way. Defense counsel again objected "as to relevance. I just dont see how this is relevant on the issue of detention. I mean, this goes —" The court replied it went "right now to credibility."

"[DEFENSE COUNSEL]: Well, it may go to credibility, and I understand what the Court is saying. But, I mean, I think this is no different than she asking him, did you commit the robbery, and I dont think she can ask that question because thats not the issue.

"THE COURT: [The prosecutor] may cross on anything that you brought out in direct, and that was brought out in direct.

"[DEFENSE COUNSEL]: Not

"THE COURT: You may not have intended to bring it out on direct, but the statement was made in direct examination."

Defense counsel insisted he only asked appellant what he was doing when the officer contacted him on the street. The court again overruled the objection and allowed the cross-examination to continue.

"Q. Why did you knock at that door that morning.

"A. To look for a carpool ride.

"[DEFENSE COUNSEL]: Okay. Judge Im going to, again, object to this line of questioning. Its not relevant, and the ground is irrelevant."

The court again overruled the objection.

The prosecutor asked appellant why he was at the house, and appellant said it was to meet "Jack." The prosecutor then asked appellant how long he had known Jack. Defense counsel again objected: "Okay. Now, Im going to instruct my client not to answer any other questions, and the Court can do what ever they want with the evidence hes presented." Counsel instructed appellant not to answer any more questions.

The court asked defense counsel if he wanted appellants statements stricken, and counsel said yes. The court asked the prosecutor if she would waive further cross-examination. The prosecutor refused to so waive unless the defense wanted to withdraw appellants entire testimony for consideration in the suppression motion. Defense counsel replied:

"And thats basically what Im going to do. I dont think he should have to answer these questions. And in all respect to the Court, my position is he shouldnt have to answer these questions. I understand that means his whole testimony will be struck, and Im — thats fine if thats the Courts decision."

The court so ordered and adjourned for the day.

The next day, defense counsel moved to reopen and have appellant return to the stand because "there was some confusion yesterday about his understanding of what he was being asked." The court refused "[b]ased on what transpired yesterday," and invited argument on the motion. Defense counsel argued Officer Slayton lacked any reasonable grounds or probable cause to detain appellant because two suspects had already been arrested and identified as the culprits in the restaurant robbery. Appellant was simply walking around the neighborhood and was taken into custody for no reason. The prosecutor replied the police could patrol the residential neighborhood, walk on the public street, and ask appellant if he would talk to them. The entire incident was a consensual encounter and appellant was never detained.

The court noted the only evidence that could be suppressed was appellants statements and "this case really comes down to Miranda issue," which could not be raised in a section 1538.5 motion. The court denied the suppression motion "but Im also not convinced there was anything to suppress the way the things developed in this particular case. The officers already had made the physical observations of [appellant], what he was wearing, before he was taken down to the police station, and I have no doubt that everything up until the point they got into the [patrol] car was consensual, and all the statements I have that were admitted by the officers was the trip down to the station for further identification, that was voluntary."

Miranda v. Arizona (1966) 384 U.S. 436.

Appellant now contends the trial court improperly denied his suppression motion because it erroneously permitted the prosecutor to cross-examine him on matters outside the scope of his direct examination testimony in violation of his privilege against self-incrimination. Appellant argues that when the court permitted the prosecutor to continue the cross-examination, it essentially forced appellant to agree to strike his entire testimony. The courts order required appellant to choose "between enforcing his Fourth Amendment right to suppress unlawfully obtained evidence, or his Fifth Amendment privilege against compelled self-incrimination and his Fourteenth Amendment right to due process during his prosecution."

Respondent contends appellant cannot raise this issue without a certificate of probable cause. However, a certificate of probable cause is not required because appellant has raised on appeal the validity of a search or seizure "for which an appeal is provided under section 1538.5, subdivision (m)." (People v. Jones (1995) 10 Cal.4th 1102, 1106.) While appellant challenges the trial courts underlying evidentiary ruling, this contention is the basis for his overall argument that the court improperly denied his suppression motion. Respondents similar contention with regard to the sentencing issue raised is likewise rejected. (People v. Buttram (2003) 30 Cal.4th 773, 785.)

Appellants arguments fail for a number of reasons. First, appellant never raised any constitutional objections to the prosecutors cross-examination questions. An objection must alert the court and the parties to the specific nature of the objection so that the other party can establish the admissibility of the evidence and the court can avoid error. (Evid. Code, § 353; People v. Williams (1988) 44 Cal.3d 883, 906.) The reason for the rule is clear—failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect. (People v. Wright (1990) 52 Cal.3d 367, 404.) Even if defendant attempts to raise constitutional issues on appeal, the failure to raise the same objections at trial results in waiver of the issues on appeal. (Evid. Code, § 353, subd. (a); People v. Rodrigues (1994) 8 Cal.4th 1060, 1118 & 1119, fn. 22; People v. McPeters (1992) 2 Cal.4th 1148, 1188.)

In People v. Williams (1997) 16 Cal.4th 153, the trial court permitted the prosecution to introduce evidence of defendants gang membership at the penalty phase of a capital case. Defense counsel objected as irrelevant, but the trial court overruled the objections. On appeal, defendant again raised the relevance argument, but Williams held the trial court did not abuse its discretion in admitting this evidence. (Id. at pp. 249-250.) Defendant also argued the evidence was prejudicial pursuant to Evidence Code section 352, but Williams held defendant had waived any section 352 objection and could not raise it on appeal because his trial objection had only been based on relevancy. (Id. at p. 250.) Finally, defendant claimed that admission of the gang evidence implicated certain federal constitutional rights, specifically, his right to due process of law, his Eighth Amendment right to a fair and reliable sentence, and his associational rights under the First and Fourteenth Amendments. (Ibid.) Williams held that defendant waived these constitutional objections to the admission of the evidence by failing to raise them at trial. (Ibid.; Evid. Code, § 353.)

Similarly, in People v. Wader (1993) 5 Cal.4th 610, defendant moved to suppress his pretrial statements to an officer. The officer testified at a "nonstatutory" motion to exclude, but defendant never clarified the grounds he sought to exclude his statements to the officer. Wader held that defendants failure to raise constitutional objections to his pretrial statements resulted in waiver of that issue on appeal. (Id. at pp. 635-636; see also People v. Hart (1999) 20 Cal.4th 546, 613, 615 [failure to raise constitutional objections to photographic evidence waives issue on appeal]; People v. Rodrigues, supra, 8 Cal.4th 1060, 1118 & 1119, fn. 22 [confrontation clause argument is waived if not raised at trial]; People v. McPeters, supra, 2 Cal.4th 1148, 1188 [failure to raise constitutional objections to evidence results in waiver of claim on appeal]; People v. Benson (1990) 52 Cal.3d 754, 788 [defendants constitutional claims waived based upon his failure to set forth a sufficient constitutional objection when the evidence was introduced].)

In the instant case, as in Williams and Wader, appellants objections to the prosecutors cross-examination questions were limited to repeated "relevance" objections and one "beyond the scope" objection. Appellant never claimed the cross-examination violated his privilege against self-incrimination, and never objected to the courts offer to strike his testimony as requiring any purported choice between his constitutional rights. Appellant asserts that, given the nature of counsels objections and arguments, "the only reasonable conclusion was that counsel was protecting [appellants] Fifth Amendment rights." Such a conclusion cannot be reached given the clarity and entirety of the record. Absent a timely and specific objection on the ground appellant now asserts on appeal, his constitutional contentions are deemed waived. (People v. Mitcham (1992) 1 Cal.4th 1027, 1044; People v. Benson, supra, 52 Cal.3d 754, 786, fn. 7; People v. Hill (1992) 3 Cal.4th 959, 994-995, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.)

We next turn to the correctness of the trial courts evidentiary rulings on appellants relevancy and scope objections. A witness may be cross-examined upon any matter within the scope of the direct examination. (Evid. Code, § 773, subd. (a); People v. Price (1991) 1 Cal.4th 324, 474.) "A collateral matter has been defined as `one that has no relevancy to prove or disprove any issue in the action. [Citation.] A matter collateral to an issue in the action may nevertheless be relevant to the credibility of a witness who presents evidence on an issue . . ." (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) Evidence bearing on a witnesss credibility is always relevant. (Ibid .)

In determining the credibility of a witness, the trier of fact may consider any matter tending to prove or disprove the truthfulness of the witnesss testimony. (Evid. Code, § 780.) A witnesss credibility may be challenged with evidence of prior statements that are inconsistent with the witnesss testimony at the trial. (People v. Price, supra, 1 Cal.4th 324, 474.) An inconsistency between two statements tends to impeach the witnesss credibility because it tends to show the witness is a liar, either on the previous occasion or during his testimony. (People v. Martinez (1996) 51 Cal.App.4th 537, 546.)

"A defendant who takes the stand to testify in his own behalf waives the privilege against self-incrimination to the extent of all inquiries which would be proper on cross-examination and is subject to impeachment the same as any other witness. [Citations.] Thus, the defendant waives the privilege with respect to any matter to which he testified expressly or impliedly on direct examination and that is relevant to impeach his credibility as a witness. [Citation.]" (People v. Stanfill (1986) 184 Cal.App.3d 577, 581; People v. Humiston (1993) 20 Cal.App.4th 460, 474.) "When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.] A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies." (People v. Cooper (1991) 53 Cal.3d 771, 822.)

In the instant case, the trial court properly found the prosecutors questions were relevant and within the scope of appellants testimony because of the credibility conflict between appellant and Officer Slayton. Slayton testified, without objection, as to the nature and circumstances of his encounter with appellant, appellants statements about his conduct, and appellants admission that he was involved in the robbery. In his direct examination, appellant offered a different version of his encounter with Slayton, and claimed Slayton placed his hand on his gun and ordered him to step into the street. Appellant claimed he was surrounded by other officers and felt he had no choice but to comply with their orders and answer questions. Appellant thus presented the court with a conflict as to which version of the encounter was credible. The trial court properly permitted the prosecutor to impeach appellants credibility by bringing out his prior inconsistent statements, and properly overruled appellants relevance and scope objections because credibility was the key issue as to the circumstances of their encounter on Jorie Way. (See e.g., People v. Cooper, supra, 53 Cal.3d 771, 822; People v. Henderson (1985) 163 Cal.App.3d 1001, 1013.)

Finally, appellants decision to accept the trial courts offer to strike his entire testimony was a tactical decision under the circumstances of the case. Appellant refused to continue the cross-examination, and the prosecutor refused to waive further questioning. The chief purpose of cross-examination is to test the credibility, knowledge and recollection of the witness. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733.)

"Where a witness refuses to submit to cross-examination ... the conventional remedy is to exclude the witnesss testimony on direct. As stated in Witkin: `In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Citations.] (3 Witkin, Cal. Evidence [(3d ed.1986)] § 1877, p. 1831, original italics.). This rule applies even `where the refusal to answer is based on a valid claim of privilege. (Ibid.) Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf. Striking a witnesss entire testimony is, of course, a `drastic solution, only to be employed `after less severe means are considered. [Citations.] [¶] The logic of this rule applies as much to the situation in which the person who refuses to disclose is a defense witness as to that in which it is the defendant himself, as the refusal of a defense witness to submit to proper cross-examination may corrupt the factfinding process as much as the refusal to submit of the defendant himself." (Fost v. Superior Court, supra, 80 Cal.App.4th 724, 735-736, fn. omitted.)

Appellant never preserved any objection to the trial courts offer to strike, requested a less drastic solution, or argued that the court was forcing him to give up any constitutional rights.

We thus conclude the trial court properly overruled appellants evidentiary objections; appellant made a tactical decision to have his testimony stricken rather than respond to cross-examination questions. We are left with a record of evidence regarding the encounter on Jorie Way that establishes that Officer Slayton made plain view observations of appellants physical appearance and clothing, which later would be matched to the clothing stolen from the garage. In addition, appellant consented to talking to Slayton and his conduct was voluntary. Slayton did not illegally detain appellant and the trial court properly denied appellants suppression motion.

II. Consecutive sentences

Appellant next contends the trial court improperly imposed consecutive sentences for the robbery of the Del Taco restaurant and the burglary of the garage. Appellant argues the burglary and theft of the clothes were committed to facilitate his escape from the robbery and shared the same objective.

Respondent asserts appellant waived his section 654 argument because he entered into a negotiated disposition in which he pleaded guilty to robbery and burglary on condition he serve no more than nine years, and he received four years four months. In general, claims of error concerning section 654 are subject to review even in absence of a failure to object. (People v. Hester (2000) 22 Cal.4th 290, 295.) However, this rule does not apply to a defendant who pleaded guilty in return for a specified sentence. (Ibid.) As stated in Hester, "defendants are estopped from complaining of sentences to which they agreed." (Ibid.) Once a defendant has agreed to a specified sentence, whether described as a maximum or not, his or her sole remedy for review of that term is to attempt to withdraw the plea if the sentencing court fails to impose the specified sentence. (Id . at p. 296.) In the instant case, however, appellants negotiated disposition was for a term no longer than nine years, he did not agree to a specified sentence, and his section 654 claim has not been waived.

"Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester, supra, 22 Cal.4th 290, 294; People v. Hicks (1993) 6 Cal.4th 784, 789.) Whether a course of conduct is indivisible depends on the intent and objective of the actor. (People v. Norrell (1996) 13 Cal.4th 1, 6; People v. Evers (1992) 10 Cal.App.4th 588, 602.) "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.) The determination whether section 654 applies is a factual question for the trial court and will be upheld on appeal if supported by substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

Under section 654, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1254.) If the offenses were committed on different occasions, they may be punished separately. (Id . at p. 1253.) This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. (Id. at p. 1326.)

In the instant case, the trial court imposed consecutive sentences for the robbery and burglary and made the following findings:

"In coming to a consecutive sentencing scheme, the Court finds that as to the two offenses, their crimes and objectives were predominantly independent of each other. The robbery had been completed, and [appellant] did break in to the attached garage, committed the burglary—residential burglary thereby, for the purposes of committing a theft therein, to acquire clothing for purposes of changing his appearance to avoid detection, in the robbery. [¶] And that is sufficiently remote from the robbery itself, and not to be part and parcel of the same robbery or the same crime in the courts view."

The court found the burglary was sufficiently remote from the robbery, the offenses were committed at different times and geographic places, and the offenses were not part of a single course of aberrant behavior.

The trial courts findings are supported by the record. The officers responded to the dispatch of the robbery in progress at Del Taco at approximately 4:19 a.m. and watched as two suspects walked to the dark SUV. The lights on the SUV flashed, and the vehicle went to the nearby motel. The occupants of the SUV were apprehended within a few minutes. Officer Slayton observed appellant on Jorie Way at approximately 6:25 a.m., in an area about a quarter mile from the restaurant and motel. The victim of the burglary was not connected to the robbery victims. The robbery and the attempted escape of the suspects in the SUV were completed by the time Slayton saw appellant walking down the street.

While we agree appellant committed the burglary and stole the clothes from the garage to avoid detection, the burglary and robbery were clearly different offenses and temporarily separated by time and place such that the court properly imposed consecutive terms. (See, e.g., People v. Blessing (1979) 94 Cal.App.3d 835, 840; People v. White (1981) 117 Cal.App.3d 270, 283-284.)

DISPOSITION

The judgment is affirmed.

We concur: DIBIASO, Acting P. J., BUCKLEY, J.


Summaries of

People v. Sanchez

Court of Appeals of California, Fifth Appellate District.
Nov 3, 2003
No. F040438 (Cal. Ct. App. Nov. 3, 2003)
Case details for

People v. Sanchez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VICTOR SANCHEZ, Defendant and…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 3, 2003

Citations

No. F040438 (Cal. Ct. App. Nov. 3, 2003)