Opinion
G036166 G036207
5-29-2007
THE PEOPLE, Plaintiff and Respondent, v. LAURA SUE TEAGUE and OMAR HUMBERTO RIVERA, Defendants and Appellants.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant Laura Sue Teague. Steven A. Torres, under appointment by the Court of Appeal for Defendant and Appellant Omar Humberto Rivera. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendants appeal after being convicted of two counts of robbery, one count of burglary, and various enhancements and priors arising from a grocery store robbery. Defendant Laura Sue Teague argues that prosecutorial misconduct and judicial bias deprived her of a fair trial. She further argues that two of the conditions of her probation are inappropriate. Defendant Omar Humberto Rivera appeals solely on the grounds that he was improperly sentenced under Penal Code section 654. We find none of these arguments have merit and therefore affirm.
Subsequent statutory references are to the Penal Code.
I
FACTS
As always, we review the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On September 1, 2004, Teague and Rivera (collectively defendants) entered a Vons store in Laguna Niguel and subsequently left without paying for various hair care items. When confronted by two loss prevention officers in the parking lot, Rivera pointed a gun at both. After the loss prevention officers were unable to physically detain them, defendants escaped in their vehicle.
Deputy Sheriff Rebecca Contreras responded, and the loss prevention officers provided her with a description of the suspects and the license plate number of the car. One of the loss prevention officers, Fernando Munoz, told Contreras that when he followed defendants, Rivera pointed a handgun at him.
Defendants were detained shortly thereafter. Munoz and the second loss prevention officer, Jose Orellana, identified them. A search of defendants car revealed a multitude of hair care products and other merchandise. Orellana identified some of the merchandise by Vons store numbers on the packaging. No gun was found in the car.
In an amended information, the Orange County District Attorney charged defendants with two counts of second degree robbery (counts one and two; §§ 211, 212.5) and one count of second degree commercial burglary (count three; §§ 459, 460, subd. (b)). As to the two counts of robbery, it was alleged that Rivera personally used a firearm (§ 12022.53, subd. (b)), and that Teague was vicariously armed with a firearm (§ 12022, subd. (a)(1)). It was also alleged that Rivera had four prior strike convictions for robbery (§ 667, subds. (d), (e)(2)(A)), two prior serious felony convictions and had served a prior prison term (§§ 667, subd. (a)(1), 667.5, subd. (b)).
A jury found both defendants guilty as charged. The jury also found the firearm enhancements true. Rivera waived his right to a jury trial on the priors, and the court subsequently found two of the prior strike conviction allegations true.
Teague was sentenced to five years probation subject to various conditions. Rivera was sentenced to state prison for 26 years, which included a principal term for the robbery in count one and concurrent terms for the robbery in count two and the burglary.
II
DISCUSSION
Teague and Rivera raise separate issues on appeal. We first address Teagues various contentions before separately discussing Riveras sole argument.
Prosecutorial Misconduct
Teague first claims that the prosecutor committed misconduct that constituted reversible error per se. During closing argument, the prosecutor stated:
"Yes, these two are entitled to a fair trial, but so are the People. They were presumed innocent. They were. But they have had their fair trial." Defense counsel objected on the grounds that the prosecutor had misstated the law about the presumption of innocence. The court, before overruling the objection, said: "Well, you know, very, very technically until they get in there and decide what the facts are, they are presumed innocent until they decide what the facts are."
At the conclusion of argument, the prosecutor stated: "I said to you earlier that these defendants had the presumption of innocence and the reason I said that its gone is because the presumption of innocence reasonable doubt instruction reads [as] follows: A defendant in a criminal action is presumed to be innocent until the contrary is proved. Its the Peoples version since you have received all the evidence, and nothing we say is evidence, that it has been proved to you." Defense counsel objected on the ground that this argument misstated the testimony, and the prosecution was allowed to proceed.
Teague now argues these two statements misstated the presumption of innocence and burden of proof. Teague vastly overstates both what the prosecutor actually said and the logical inferences to be drawn from it. All the prosecutor said initially was that the defendants were entitled to the presumption of innocence, and they had had a fair trial. Defense counsel objected at that point. After argument resumed, the prosecutor stated: "You are not advocates. As we discussed earlier, you are here to find the facts and apply them to the law. So its not your job to go back there and say okay, heres the facts, but where is the reasonable doubt? They have had their trial." In context, the prosecutors argument was about the jurys role and its intersection with the burden of proof. As the court stated, the defendants were entitled to the presumption of innocence until the jury decides the facts. At the close of argument, the prosecutor read the actual instruction and repeated the argument that the presumption of innocence had been rebutted by the evidence.
We disagree with Teague that either the prosecutors statements or the judges response were sufficiently prejudicial as to require reversal. Counsel for Teague directly challenged the prosecutors statements regarding the presumption of innocence, speaking about this point at length. Teague further claims the prosecutions comments on the presumption of innocence were worse than providing no instruction at all because they misinformed the jury. Taken in context, however, no reasonable juror would have understood the prosecutors statement to mean that defendants were not entitled to the presumption of innocence or that the prosecution had a burden of proof less than reasonable doubt. There is no likelihood that the prosecutors statements were understood in the manner now claimed by Teague. (People v. Frye (1998) 18 Cal.4th 894, 970.)
Further, the last thing the jury heard before deliberations was the instruction on the burden of proof and presumption of innocence in CALJIC No. 2.90: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him or her guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
The jury was also instructed that if any statements made by the attorneys conflicted with the courts instructions, the jury must follow the instructions. Because we presume that jurors followed the courts various admonitions and instructions, any ambiguity that could possibly have been created by the prosecutors argument or the judges comments was cured by the courts instructions and admonitions to the jury. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Trial Courts Comments
Teagues primary argument at trial was that she admitted committing the burglary and petty theft, but had not committed robbery. Essentially, Teague argued that the force or fear element of robbery could not be established. The prosecution claimed that the element was satisfied in two ways, one of which was that Teague pushed a security guard while she was trying to escape. Orellana testified that Teague pushed him away and struggled with him as he attempted to pull her out of the car. Munoz also testified that he had seen Teague push Orellana. Munoz stated he told the officer about the incident, but that Contreras "didnt ask that many questions."
The police report did not include a statement from either victim that Teague had pushed or struggled with them. Defense counsel attempted to use this fact to impeach Orellana and Munozs testimony. The officer stated that her notes accurately reflected what the victims had said to her. She testified that Orellana did not tell her that he had a struggle with Teague, but he had told her that he tried to take her out of the car. She did not ask for details from either Orellana or Munoz on this point.
The prosecution elicited testimony that the police report was quite short — about half a page long. Defense counsel objected as to relevance, and the court stated: "the problem is if its that short a statement, I dont know how you can interview somebody properly." The court ordered the prosecutor to proceed.
On recross, defense counsel asked if there was a correlation between the length of the police report and its accuracy. The prosecution objected. The court stated: "Whether the statements are accurate is interesting anyway." The court asked the officer: "Do you have any quotes around anything that is in there?"
The witness replied that she did not believe so. The court stated: "Okay. Its just your, you know — thats the problem with police reports, Thats why they dont come into evidence, right? I mean . . . the problem is [the officer is] doing all this interpretation, which is lovely, but, you know."
Defense counsel asked the officer whether the report was accurate and complete. The prosecution objected on grounds of vagueness. The court replied that police officers write reports "to refresh their recollection . . . I dont know what accurate would be in this case. Ill tell you that." When defense counsel finished, the prosecution asked for further redirect. The court replied, "You know what, Im done. There is nothing in here. Dont look for me to comment to the jury, but thats done. Okay. You are free to go. Thank you. It would be lovely if they all had tape recorders."
Outside the presence of the jury, defense counsel stated the court had made comments that questioned the accuracy of the police report because of its length. The court responded: "[I]ts so obvious by what she says that everything she says is due to interpretation. I mean, it has nothing to do with what the people told her, but of course her interpretation is in a half a paragraph of a robbery, its almost laughable." The court denied defense counsels motion for a mistrial, but agreed to, and did, read CALJIC No. 17.30 as part of the jury instructions.
CALJIC No. 17.30 states: "I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion."
Teague claims the courts comments about the police report, when combined with comments directed at trial counsel, were prejudicial because they undermined Teagues "credibility." We review such claims on a case by case basis in light of the content of the comments and the context in which they arose. (People v. Cash (2002) 28 Cal.4th 703, 730.) "Although the trial court has both the duty and the discretion to control the conduct of the trial [citation], the court `commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution [citation]." (People v. Snow (2003) 30 Cal.4th 43, 78.)
With respect to the courts comments on the issue of the police report, we do not accept Teagues premise that the courts comments conveyed to the jurors that they should believe the witnesses trial testimony rather than Teagues own assertion that no push occurred. First, we note that Teague presented no affirmative evidence on this point. She instead tried to use the fact that no report of the push was included in the half-page police report to impeach the witnesses trial testimony. This resulted in a back-and-forth sequence of redirect and recross examination of the police officer on the subject of how complete the report was.
The courts remarks, while somewhat intemperate, appear to reflect its frustration with continued questioning on two points that seemed obvious — that a half-page police report could not possibly include every detail of a burglary and subsequent escape, and that a police report was not a camera or tape recorder, and subsequently reflected the officers impressions of what was said and what was important rather than a verbatim account. Even without the courts comments, these are obvious, common sense inferences. Ultimately, the comments were harmless, as we find no reasonable probability that without the courts comments, the jury would have believed that a half-page police report was complete in every respect, and that Orellana and Munoz were lying about the struggle with Teague. Further, the court read the jury CALJIC No. 17.30, and we presume that the jury followed the courts instructions. (People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.)
Teague seeks to combine this issue with a number of unrelated comments she claims undermined defense counsel. None of these were the subject of objection at trial. Misconduct claims are not preserved for review if no objection is made. (People v. Hines (1997) 15 Cal.4th 997, 1041.) Even if they were, none of the cited comments rises to a level that could reasonably be construed as disparaging. Several of the comments appear innocuous on the record, which is why we would expect an objection to appear if the comments were so serious as to jeopardize Teagues right to a fair trial. Absent such objections, we decline to undertake further review.
Any error was also harmless in another respect — in addition to the theory that Teague had used force or fear herself in the struggle with the loss prevention officers, the prosecution also advanced the theory that Teague was guilty of robbery as an aider and abettor of Rivera. The evidence on this point was overwhelming and unaffected by the courts comments about the police report.
Probation Conditions
We review probation conditions for abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) The trial court ordered, as a condition of Teagues probation, that she have no contact with personnel at Vons. She claims this provision must be restricted to prevent only association with those Teague knows to work at Vons, otherwise, it is overbroad. She claims she could be found in violation of the condition should she unknowingly strike up a conversation with a Vons employee in a random encounter.
The probation condition states: "Do not have any contact with [Personnel] at [Vons] nor victim Munoz, Orellana directly, indirectly or through a third party except by an Attorney of Record." While this condition could have been drafted with more precision, we read it with common sense and in the context of Teagues convictions to mean that she is not to intentionally have contact with Vons personnel by entering the store she robbed. We find Teague in no danger of violating the condition by a pure happenstance encounter, as no reasonable judge would read the condition as requiring Teague to avoid contact with a person she does not know is covered by the order. She is only prevented from contacting those she knows to be Vons employees.
Teague next argues that the probation condition that she "seek training, schooling, or employment and maintain a residence as approved by the Probation Department" was unreasonable as to the residence provision. Teague failed to raise this issue below. She now attempts to recast it in jurisdictional terms, arguing the trial court acted in excess of its statutory authority by imposing an "unauthorized sentence." If this were true, then the failure to raise the issue below would never be a bar to challenging a probation condition on appeal — every such condition could theoretically constitute an "unauthorized sentence."
That is not the case. Teague is challenging the relationship of the probation condition to the goals of rehabilitation. This is neither an issue of an unauthorized sentence or a pure question of law, but whether the probation condition is reasonable. Such challenges cannot be made for the first time in the appellate court. (People v. Welch (1993) 5 Cal.4th 228, 235.)
Riveras Appeal — Section 654
Riveras sole argument on appeal is that the concurrent sentence imposed for the burglary conviction in count three violated section 654, because the burglary and the robbery (count one) constituted an indivisible course of conduct. Section 654 requires that an act or omission that is made punishable in different ways by different provisions of the Penal Code may be punished under either of such provisions, "but in no case shall [it] be punished under more than one . . . ." (§ 654, subd. (a).) Section 654, therefore, bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Even if the trial court makes no express finding on the issue, a finding that the crimes were divisible may be implied in the judgment imposing multiple punishments, and such an implied finding will likewise be upheld if supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
The evidence at trial demonstrated that after shoplifting items from the Vons store (which constituted the burglary), defendants were confronted by loss prevention officers Orellana and Munoz. Rivera pulled a gun from his waistband and pointed it at Teague to discourage him from following (which constituted the robbery). Teague reached the car first, and Orellana tried to pull Teague out of the car. Rivera got into the car and pointed the gun at Orellana, who was struggling with Teague. Munoz pulled Orellana away and the car sped off.
At sentencing, the court found there was a single course of conduct and two separate victims. The court ordered the burglary (count three) and the robbery (count two) to run concurrent to each other and concurrent to the principal term for the robbery charged in count one. Rivera argues the concurrent sentence for the burglary charged in count three should have been stayed. He claims the burglary and robbery are "inseparable" because when Rivera pulled the gun on Orellana, he had not yet reached a place of temporary safety and his escape was still in progress.
We look to whether the course of conduct was an "indivisible transaction." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California, supra, 55 Cal.2d at p. 19.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citations.]" (People v. Perez (1979) 23 Cal.3d 545, 551-552, fn. omitted.)
In support of his argument that the robbery and burglary were part of an indivisible course of conduct, Rivera relies on People v. Guzman (1996) 45 Cal.App.4th 1023. In Guzman, the victim saw several men burglarizing his garage, placing his sons motorcycle in a truck. (Id. at p. 1025.) He pursued them to reclaim his property. Upon confronting the men, the victim was beaten, and the men drove away in the truck.
(Id. at p. 1026.) The victim was able to pursue, however, and the men were arrested. (Ibid.) One defendant was convicted of burglary, robbery, and grand theft, but the Court of Appeal agreed that the defendant could not be punished for both burglary and robbery, finding that the burglary was still in progress when the robbery occurred. (Id. at p. 1028.)
Guzman is distinguishable. Preventing the victim from reclaiming his property was clearly part of the same transaction as the original burglary — indeed, the robbery and the burglary involved the same property, the motorcycle. Here, the robbery was not part of the burglary, which was technically complete when defendants entered the store with the intent to commit larceny. (§ 459.)
Moreover, the fact that the robbery occurred during the attempted escape does not automatically result in the conclusion that it was incidental to the original crime. In People v. Vidaurri (1980) 103 Cal.App.3d 450, the defendant, after stealing merchandise from a department store, was confronted by security guards in the parking lot and assaulted them. He argued that the assaults were an attempt to escape from the burglary, and therefore could not be separately punished. (Id. at pp. 463-464.) The court held: "It would be arbitrary to reach a conclusion either that escape is always a part of a continuous transaction which includes the principal offense, or that an escape is never a part of one continuous transaction which includes the principal offense." (Id. at p. 464.) Instead, the court concluded, "the burglary and subsequent assaults were not part of one continuous, indivisible course of conduct. On the contrary, the assaults were committed in response to the unforeseen circumstance — the approach of the . . . security guards." (Id. at pp. 465-466.)
The same is true here — the robbery was committed in response to the pursuit. Riveras conduct was therefore not part of one continuous course of conduct. By the time of the battery, Rivera had developed a new objective — to use force and violence to escape capture. Section 654 does not prohibit separate punishment for "gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) Here, Riveras actions in committing the robbery were not reasonably necessary to the accomplishment of the original offense of burglary, which was technically complete when he entered the store with the intent to commit larceny. (§ 459.)
The purpose of section 654 is to ensure that a defendants punishment is commensurate with his culpability. (People v. Perez, supra, 23 Cal.3d at pp. 549-550, fn. 3.) This policy supports punishing Rivera separately (though concurrently) for the crimes of burglary and robbery. Brandishing a weapon unnecessarily escalated the situation and placed the victim at risk of great bodily injury or death. The trial court did not err in sentencing Rivera for both crimes.
III
DISPOSITION
The judgment is affirmed.
We concur:
BEDSWORTH, Acting P. J.
FYBEL, J.