Opinion
G051573
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. SERGIO BELLO, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CF2520) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Sergio Bello was convicted of robbery, possession of a firearm within 1,000 feet of a school, and possession of a firearm by a felon. Defendant raises several arguments against his convictions; finding no merit in any of them, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On August 22, 2012, about 11:00 p.m., brothers Bee-U Xiong (Bee) and Drocttree Xiong (Tree) were walking in the area of Chestnut Avenue and Flower Street in Santa Ana. Bee and Tree saw defendant walking across the street toward them, and racking the rifle he was carrying. Defendant approached Bee and Tree; defendant asked Bee, who was on his cell phone, if he was calling the police. Defendant ordered Bee and Tree to lie facedown in the street and to toss their phones on the ground. Defendant placed the rifle on Tree's back and asked "if he wanted to die." Defendant placed the phones in his pocket, and instructed Bee and Tree to get up and run. Bee and Tree ran in the direction indicated by defendant, but then turned and ran in the direction that they believed defendant was headed. They spotted defendant entering a nearby property. During the entire encounter, defendant appeared "wobbly" when walking, and his words were slurred, leading both Bee and Tree to believe he was intoxicated or under the influence of some substance.
Bee borrowed a cell phone from someone in the area and called 911. Santa Ana Police Officer Robert Rubalcaba responded and saw Bee, waving his arms, in the alley of 200 South Flower Street. Bee told Rubalcaba that he and his brother had been robbed by a man holding a rifle, who, Bee believed, had hopped a nearby fence.
Rubalcaba approached the fence indicated by Bee and observed defendant trying to jump over it toward Rubalcaba. Defendant fell backwards and Rubalcaba heard the sound of a rifle racking. Rubalcaba saw defendant jump over several fences, and climb the roof of a nearby building directly to the west of Santa Ana High School. Rubalcaba climbed to the roof and took defendant into custody. Rubalcaba recovered a rifle from a nearby yard.
Santa Ana Police Corporal Michelle Macchiaroli interviewed defendant at the police station. Throughout the interview, defendant appeared "slow," as if he had consumed alcohol. Macchiaroli had to wake defendant several times during the interview and was concerned he was going to fall from the stool on which he was sitting. She also noted he had difficulty working the water fountain.
The parties stipulated that defendant had previously been convicted of a felony.
Defendant was charged in an information with two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) (counts 1 and 2), one count of possession a firearm within 1,000 feet of a school (id., § 626.9, subd. (b)) (count 3), and one count of being a felon in possession of a firearm (id., § 29800, subd. (a)(1)) (count 4). The information alleged that defendant personally used a firearm in committing the robberies. (Id., § 12022.53, subd. (b).) The information also alleged that defendant had suffered a strike prior (id., §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and a prison prior (id., § 667.5, subd. (b)).
Before trial, the court granted defendant's motion under Penal Code section 995 to dismiss a sentencing enhancement allegation that defendant had committed the crimes for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)).
Before trial, the court granted the prosecution's motion to dismiss another alleged strike prior. Defendant admitted the remaining strike prior and the prison prior.
A jury convicted defendant of all counts, and found the personal use of a firearm allegation to be true. The trial court sentenced defendant to a total term of 26 years four months in state prison.
DISCUSSION
I.
PRIOR BAD ACTS
At trial, the court allowed the prosecution to offer evidence of a prior robbery by defendant to show his intent in the current case. Defendant argues on appeal that the trial court prejudicially erred in doing so. In May 2008, Santa Ana Police Detective Patricia Navarro questioned defendant in connection with a robbery that she was investigating, and asked him to describe what had happened. Defendant admitted he and a friend had approached two individuals on foot. Defendant's friend grabbed a gold chain and a bicycle from one of the victims and defendant took an iPod from the other. He was not armed with any weapons at the time. Defendant ran away and discarded the property. A juvenile petition was sustained in that case.
"[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] . . . Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent . . . ) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subds. (a), (b).)
The California Supreme Court has explained, "[e]vidence that a defendant committed crimes other than those for which the defendant is then being tried is barred by Evidence Code section 1101 [citation] if it is offered to prove the defendant's criminal disposition, but not if it is offered to prove a material disputed issue such as motive or intent. [Citation.]" (People v. Hayes (1990) 52 Cal.3d 577, 616-617.) Evidence showing a defendant committed crimes other than those for which the defendant is then being tried is admissible to prove intent if the charged and uncharged crimes "are sufficiently similar to support a rational inference of . . . intent. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 369.) We review the trial court's decision to admit the evidence for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
In considering the admissibility of evidence of other crimes, the trial court must consider (1) the materiality of the fact sought to be proven; (2) the tendency of the prior crime to prove the material fact; and (3) the existence of a rule or policy requiring that the evidence be excluded. (People v. Robbins (1988) 45 Cal.3d 867, 879.)
To be admitted as relevant to prove intent, prior crimes only need to be sufficiently similar to the present charged crime to support an inference that "'defendant probably harbored the same intent in each instance.' [Citations.]" (People v. Cole, supra, 33 Cal.4th at p. 1194.)
Here, defendant approached Bee and Tree with a rifle. Defendant asked whether Bee was on his cell phone with the police, ordered him to hang up the phone, and demanded that Bee and Tree toss their cell phones to the ground. Defendant collected the cell phones and then fled with them. In order to prove that defendant robbed Bee and Tree, the prosecution had to establish that defendant had the specific intent to permanently deprive them of their property. (Pen. Code, § 211; CALCRIM No. 1600.)
The prior robbery, in which defendant took an iPod and later discarded it, tended to show that his intent with respect to Bee and Tree was to take their phones, not simply to keep them from talking to the police. That the prior robbery was similar to the instant robbery is what made it probative. Because defendant's prior robbery tended to show that he harbored the same intent to rob Bee and Tree, the trial court was well within its discretion in admitting it.
Defendant cites Gordon v. United States (1967) 383 F.2d 936 and People v. Beagle (1972) 6 Cal.3d 441 to argue that evidence of his prior bad acts should have been excluded because they were too similar to the crimes charged in the present case. Those cases, however, involved prior bad acts that were used as impeachment evidence to challenge the defendants' credibility, not to establish intent.
People v. Beagle is also of limited value because of changes in California's evidentiary rules since it was decided. (See Cal. Const., art. I, § 28, subd. (f)(2) ["Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103."].)
In any event, the trial court minimized any potential prejudice from the admission of the evidence by instructing the jury that the evidence could only be used to prove intent, not for any other purpose, and that it could not be used, alone, to establish defendant's guilt in the present case. The jury is presumed to have followed those instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
II.
EVIDENCE OF GANG AFFILIATION
Before the start of trial, the prosecution moved to admit evidence of defendant's affiliation with the Sixth Street criminal street gang to show that at the time of the incident, he knew, or should have known, he was in a school zone. Defendant's trial counsel objected: "I think that would be wholly inappropriate. It is not relevant to any of the charges pending against [defendant]. It would be a clear violation of his state and Federal due process rights, and [a] clear denial of his right to a fair trial. [¶] Just the word gang has such a sinister connotation, it would clearly unduly prejudice the jury against [defendant], aside from it having no relevance . . . ."
The prosecutor responded that she was offering the evidence to establish defendant's familiarity with the area and his knowledge that he was in possession of a firearm near Santa Ana High School. The prosecutor offered to forgo the gang evidence if defendant would stipulate to the knowledge requirement of Penal Code section 626.9; defendant refused to do so. The court then allowed the evidence to be admitted.
Defendant told Macchiaroli that he belonged to the Sixth Street criminal street gang. He said he had grown up in the gang's neighborhood and had been "walked" in at the age of 12. Although Sixth Street's claimed territory abuts Santa Ana High School, the high school is not part of the gang's claimed territory. Santa Ana High School is actually claimed by the Central Myrtle criminal street gang.
Macchiaroli testified that she was familiar with how gangs claim territory. She testified that gang territory was outlined by specific streets and that, in her experience, gang members are very familiar with the borders of their territory and what is included within their territory. She further stated gang members are familiar with borders of rival gangs' territories and a gang member would not likely stray into a rival gang's territory because he or she might be harmed if he or she did so.
During Macchiaroli's testimony, the trial court instructed the jury the court was allowing the gang evidence for a limited purpose. The court read a limiting instruction to the jury as follows: "You have heard some evidence relating to neighborhoods or gangs. The evidence can be considered only for the limited purpose of determining [defendant]'s familiarity with the geographic area, and in determining his level of intoxication. You may not consider such evidence for any other purpose." The court further informed the jury that this was not a gang case, but that the court was permitting the prosecutor to elicit gang evidence to show defendant's familiarity with the area in question. The court repeated that instruction when it instructed the jury at the conclusion of the trial. The jury is presumed to have followed these instructions. (People v. Gonzales, supra, 51 Cal.4th at p. 940.)
We review the trial court's evidentiary ruling for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.)
The evidence of defendant's gang membership, and his attendant knowledge of the boundaries of the claimed territories of his gang and its rival gang, were relevant to prove defendant's knowledge that he was within 1,000 feet of Santa Ana High School when he robbed Tree and Bee. Although the evidence of gang membership had the potential to be prejudicial, the trial court instructed the jury regarding the limits of the jury's use of the evidence even before it was offered.
III.
NIGHTTIME PHOTOGRAPHS
On August 30, 2014, about 9:30 p.m., defense investigator Phuong Nguyen went to the area where defendant was arrested and took some photographs. Several of the photographs were from the same vantage point that the police officers had on the night of defendant's arrest. Nguyen stated that from the area of defendant's arrest, Santa Ana High School could be seen, but it appeared to be a commercial building, not a high school. Defendant did not attend Santa Ana High School.
Defendant's counsel sought to admit Nguyen's photographs. The prosecutor objected to admission of the photographs because Nguyen would be unable to properly "lay the foundation for whether or not these [photographs] accurately depict the lighting condition on the night in question."
The court agreed with the prosecutor and excluded the photographs: "There is no way that the investigator could testify that this is the way it looked on the night in question. So the People's objection is sustained."
We review the trial court's evidentiary rulings for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.)
We conclude the trial court did not err in excluding Nguyen's photographs. Defendant failed to show that the photographs could accurately recreate for the jury what the lighting conditions were like on the night of the crime. First, Bee and Tree were robbed around 11:00 p.m., not 9:30 p.m. Second, defendant did not make an offer of proof regarding the weather conditions or the brightness of the moon or other celestial bodies for either the night of the robberies or the night the photographs were taken. Third, defendant did not make an offer of proof that the ambient light from houses or other buildings in the area on the night of the robberies had been accurately recreated in Nguyen's photographs.
The trial court did permit Nguyen to explain what she was able to see at night at the crime scene. But because defendant failed to show the photographs themselves were relevant, the court properly excluded them.
IV.
VOLUNTARY INTOXICATION INSTRUCTION
At the conclusion of the evidence, defendant's counsel requested the trial court to instruct the jury on voluntary intoxication as to all counts. The court agreed to give the instruction with regard to counts 1 and 2, but refused to give the instruction with regard to counts 3 and 4.
The jury was ultimately instructed with a modified version of CALCRIM No. 3426: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the specific intent or mental state required. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of Counts 1 & 2: Second Degree Robbery the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to permanently deprive the owner of his or her property or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property. If the People have not met this burden, you must find the defendant not guilty of Second Degree Robbery. [¶] You may also consider voluntary intoxication in deciding whether the defendant made false or misleading statements. (Refer to CALCRIM 362) [¶] You may not consider evidence of voluntary intoxication for any other purpose." (Underscoring omitted.) --------
"As a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 U.S. 58, 63; see People v. Roldan (2005) 35 Cal.4th 646, 715; People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
As relevant to the present case, Penal Code section 29.4 excludes evidence of voluntary intoxication, except to negate specific intent: "(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent . . . ." The cases clearly hold that "[e]vidence of voluntary intoxication is inadmissible to negate the existence of general criminal intent." (People v. Atkins (2001) 25 Cal.4th 76, 81.)
Possession of a firearm by a felon is a general intent crime. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [interpreting Penal Code former section 12021, subdivision (a), the predecessor of current Penal Code section 29800, subdivision (a)(1)].)
The elements of a violation of Penal Code section 626.9, subdivision (b) are that (1) the defendant possess a firearm (2) in an area the defendant knows or reasonably should know is a school zone, (3) without permission of school authorities. (People v. Tapia (2005) 129 Cal.App.4th 1153, 1159.) "'When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.'" (People v. Atkins, supra, 25 Cal.4th at p. 82.) Given the Supreme Court's clear explanation of what constitutes a specific intent crime versus a general intent crime, there is no question but that violation of section 626.9, subdivision (b) is a general intent crime; evidence of voluntary intoxication would not be admissible as a defense to the crime.
Therefore, the trial court properly refused to instruct the jury that voluntary intoxication could be a defense to counts 3 and 4 of the information.
V.
PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor committed misconduct during closing argument by denigrating defendant's trial counsel and by misstating the law of robbery. "The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970.)
Defendant's counsel's closing argument was one and one-half hours long. In rebuttal closing argument, the prosecutor stated: "Another thing is [defense counsel] is an extremely talented attorney. Don't think for a second that he isn't. An hour and a half long closing in a case like this is strategic. Here is why. The longer that you think about an issue, the more you question whether you know what you actually know." The trial court overruled defense counsel's objection. The prosecutor then explained how talking too long about something, or thinking too long about something that is otherwise "clear," causes a person to start questioning whether he or she really knows what it is he or she is talking about. The prosecutor also argued that defense counsel's argument about why the police did not look for Bee's and Tree's cell phones and why the prosecutor had not offered evidence of the ownership of the rifle was a "diversion." Again, defense counsel's objection was overruled.
"'A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.' [Citations.] 'In evaluating a claim of such misconduct, we determine whether the prosecutor's comments were a fair response to defense counsel's remarks' [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation]." (People v. Edwards (2013) 57 Cal.4th 658, 738.) The prosecutor's rebuttal closing was a fair response to the length of defendant's counsel's closing argument, and to the specific arguments raised by defense counsel about the failure of the prosecutor to offer evidence of the location of Bee's and Tree's cell phones, or of the ownership of the rifle possessed by defendant. The prosecutor's argument did not insult, denigrate, disparage, or cast aspersions on the integrity of defendant's counsel. The prosecutor's argument did urge the jury not to be swayed by defendant's counsel's arguments, and to focus on the evidence and the law, not the techniques used by defendant's counsel.
It is true that the prosecutor misstated the elements of robbery in rebuttal closing. There is no indication that the prosecutor did so for any improper purpose, including, but not limited to, an "attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements." (People v. Hill (1998) 17 Cal.4th 800, 829.) And there is no evidence that defendant was prejudiced by the misstatement. The trial court clearly and correctly instructed the jury regarding the elements of robbery after the prosecutor's argument. The court also instructed the jury that if there was any conflict between the court's instructions and something the attorneys had said, the jury must follow the law as explained to it by the court. We presume that the jury followed all the instructions. (People v. Gonzales, supra, 51 Cal.4th at p. 940.)
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.