Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI800126, J. David Mazurek, Judge.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant Mario Alberto Penaloza.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Ernesto Loya.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendants and appellants Mario Alberto Penaloza and Ernesto Loya appeal their convictions for residential burglary and robbery and related offenses. Finding no prejudicial error, we affirm.
PROCEDURAL HISTORY
In a jury trial, Loya and Penaloza were convicted of two counts of residential robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A)); residential burglary (§ 459); two counts of assault with a firearm (§ 245, subd. (a)(2)); two counts of false imprisonment (§ 236); and criminal threats (§ 422). (Penaloza was convicted of one count of criminal threats and Loya of two counts.) The jury found that both defendants personally used a firearm in the commission of the robberies. (§ 12022.53, subd. (b).)
All statutory citations refer to the Penal Code unless another code is specified.
The court sentenced Loya to a term of 26 years four months and Penaloza to a term of 25 years eight months.
FACTS
On the evening of January 17, 2008, Maria Garcia was at her home in Hesperia with three of her four young children and the child of a friend who shared the home with the Garcias. Maria’s husband, Omar, who worked in construction and operated a small restaurant, was not at home. About 5:50 p.m., she was talking on her cell phone with Omar. The front door of the house was ajar. Four men, including the defendants, rushed up to the front door with guns drawn and entered the house. Maria screamed and lowered her hand in an attempt to conceal the phone. The defendants pointed their guns at her and ordered her to get on the floor and keep quiet. Penaloza grabbed the phone from her and hung it up. He asked her if anyone was coming home. She said, “no.” They tapped her on the head with their guns while asking, “Where’s the money?” Penaloza stood guard over her while the others ransacked the house.
Loya ordered Penaloza to put Maria into a bedroom with the children. The others continued ransacking the house. A few minutes later, Loya came into the bedroom and asked Maria where the money “to the restaurant” was. She told him she didn’t have any money except what was in her purse. She told him to take that money and begged him to leave. Loya left the room but returned within a few minutes. He said, “If I have to come back one more time... to ask you... where the money is at, watch.” Maria took that as a threat and was very frightened.
Maria’s husband, Omar, was leaving the restaurant about 10 minutes to 6:00 and talking on the phone with Maria. He was very frightened when she suddenly screamed and disconnected the phone. He called her back, but there was no answer. Because Omar was “down the hill” from Hesperia and was quite some distance from home, his friend Juan, who was with him, suggested calling Juan’s godfather, Jesus Macedon. Omar spoke to Macedon and told him what had happened. He asked Macedon to go to the house to check on Maria. He then called 911.
Macedon was accompanied by Raul Mendoza, who cared for the Garcias’ horses. When they arrived at the Garcias’ house, Mendoza got out of the car. He noticed a car parked in front of the house. As he approached the car, it pulled out from the curb, almost hitting him. Macedon tried to follow the car but lost sight of it.
Mendoza went to the front door, which was still ajar. Loya grabbed him and pulled him inside, then pointed a gun at his head. He demanded, “Who are you?” He dragged Mendoza to the bedroom where Penaloza was guarding Maria. Penaloza pointed his gun at Mendoza and Loya pushed him to the floor and tied his hands with an electrical cord. Loya searched Mendoza and took his wallet from his pocket. He told Mendoza he would “off” him if he did not say where the money was. When Loya pulled Mendoza into the house, Mendoza saw two other men. He never saw them again after he was placed in the bedroom.
Deputy Zapata arrived at the house a few minutes after Omar’s call to 911. The front door was ajar. He entered the house and announced his presence. Loya went into the bedroom and told Maria that if she told the officer that she did not know him and Penaloza, he would return to kill her. Loya then went down the hall toward Zapata. Zapata asked whether Loya lived there and if anything was wrong. Loya claimed that it was his house and that everything was fine. Zapata saw another man come out of a bedroom at the end of the hallway and then go into another room and close the door. He asked Zapata who else was in the house. Zapata said no one else was there. When Zapata asked who the other man was, Loya said it was a friend. Zapata had heard a child crying when he first approached the house. Zapata asked Loya for identification. Loya took a thick wallet out of his pocket and nervously began looking for ID but was unable to find any. Zapata told him to put his hands against the wall and patted him down. He told Loya to stay there and then walked down the hall to investigate who the other person was.
Zapata walked down the hallway to the master bedroom and saw that it had been ransacked. He then went into the bedroom where Penaloza was guarding Maria, the children and Mendoza. He saw Maria sitting on the bed crying and Mendoza tied up on the floor. He asked whether Loya and Penaloza had done this. She mouthed the words, “Help me.”
Zapata grabbed Penaloza, handcuffed him, and took him to the front room where Loya was. He also handcuffed Loya. He patted Penaloza down and found Maria’s cell phone in his pocket. He then secured both men in his patrol car.
After Zapata removed Penaloza from the room, Maria untied Mendoza. Zapata returned and asked Maria what had happened. Other sheriff’s personnel arrived and searched the house. A handgun was found under a bed in a child’s bedroom. Maria determined that her jewelry, some cash, credit cards and identification were missing, as well her son’s Play Station. About $35 was missing from Mendoza’s wallet.
LEGAL ANALYSIS
THE COURT’S LIMITATION ON CROSS-EXAMINATION OF PROSECUTION WITNESSES WAS NOT PREJUDICIAL
The defendants’ position at trial was that Loya, who has prior convictions for transporting illegal drugs, was hired by two men, whose names were either Stefano and Augustine or Pedro and Ruben, to go to “Mike” Garcia’s house to pick up a car, which would contain either a large quantity of amphetamine or $20,000 in cash, and drive it back to Fresno. Penaloza, who is Loy's cousin, was merely accompanying Loya. They both testified that no robbery took place, or if it did, they did not know it was happening and were not involved in it. Part of the defense strategy was to introduce evidence that Omar and Maria Garcia did not have sufficient legitimate income from Omar’s construction work and their small restaurant to support their lifestyle, in order to raise the inference that they were involved in drug dealing. The Garcias had a house, four children, four or five horses, and three vehicles, including a 2003 Hummer, for which they paid $30,000. They were also able to afford the services of Raul Mendoza, who helped care for their horses.
To help make that point, counsel for Loya asked Maria how much money the restaurant made in the previous year. The court sustained the prosecutor’s objection that the evidence was not relevant. The court sustained the same objection when Loy's attorney asked Omar Garcia the same question. The court also sustained a relevance objection when Loy's attorney asked Raul Mendoza how much he charged to care for the Garcias’ horses. Defendants now assert that the exclusion of this evidence violated their constitutional right to confront prosecution witnesses and to present evidence in support of their defense.
Neither defendant asserted that the exclusion of this evidence or the limitation on their cross-examination of these witnesses violated his right to confrontation under the Sixth Amendment. Nor did either assert that the court was improperly limiting his constitutional right to present evidence in his defense. In the absence of a specific and timely objection in the trial court, neither contention was preserved for appellate review. (People v. Laidlaw (2000) 22 Cal.4th 690, 726, fn. 8.)
Even if the issue had been preserved for review, we would not reverse defendants’ convictions on that basis. While we agree that the apparent disparity between the Garcias’ income and their lifestyle has some tendency in reason to support defendants’ theory of the case, the court’s limitation on their cross-examination of Mendoza and the Garcias did not prejudicially affect defendants’ ability to present their defense or to impeach witnesses.
A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted. (People v. Quarter main (1997) 16 Cal.4th 600, 623-624, citing Delaware v. Van Marshall (1986) 475 U.S. 673, 680.) The defense was able to establish that the Garcias supported four children and four or five horses and were able to afford three vehicles, including a $30,000 Hummer, as well as part-time help in caring for the horses, and that their income was limited to whatever Omar earned in construction work and from the restaurant. Maria testified that the restaurant is small, with seating for about 40 people, and that it doesn’t make a lot of money. Eliciting a dollar amount, either from her or from Omar, would have added little to defendants’ ability to persuade the jury that she was lying about the incident because she and her husband were involved in drug dealing. Evidence that the couple paid Raul Mendoza a significant amount of money to care for the horses might have been somewhat persuasive. However, the defense made no offer of proof as to how much the Garcias paid Mendoza. Consequently, the record does not support the contention that the exclusion of that evidence limited defendants’ ability to impeach the Garcias.
Defendants also contend that the exclusion of this evidence denied them their constitutional right to present a defense. The court’s rulings did not constitute a refusal to allow them to present their defense; rather, the court merely rejected some evidence concerning that defense. Accordingly, the proper standard of review of that contention is People v. Watson (1956) 46 Cal.2d 818. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
Defendants have not shown that it is reasonably probable that the verdict would have been more favorable if they had been allowed to elicit the excluded evidence. First, as discussed above, they were able to show that the Garcias’ income was arguably insufficient to support their lifestyle. Second, they were able to introduce evidence concerning Omar’s 911 call which, the defense argued, showed that he appeared to have reason to believe that drug dealers he had “stiffed” were in his house threatening his family. Even with that evidence, the jury did not believe the defense. There is no reasonable probability that information as to how much money the Garcias earned from their restaurant and how much they paid Mendoza would have produced a better result.
DEFENDANTS HAVE FAILED TO DEMONSTRATE INEFFECTIVE ASSISTANCE OF COUNSEL
Penaloza contends that his trial attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland)), in violation of his Sixth Amendment right to effective assistance of counsel, because his attorney failed to move to sever his trial from Loy's. He contends that he was thereby locked into Loy's “unbelievable” defense. Both defendants contend that their attorneys’ performances were deficient because they failed to object appropriately to aggressive cross-examination by the prosecutor which they deem to be prosecutor misconduct.
Defendants appear to recognize that failure to interpose a timely and specific objection and request for an admonition forfeits appellate review of a claim of prosecutor misconduct unless the objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) They do not contend that objection would have been futile.
Appellate review of a trial attorney’s performance must be highly deferential, indulging a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland, supra, 466 U.S. at p. 689.) Consequently, “Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.]” (People v. Tradesman (2006) 39 Cal.4th 641, 745-746.) The appellate record seldom shows that there could be no rational explanation for an attorney’s actions or omissions. (People v. Lopez (2008) 42 Cal.4th 960, 966 [failure to object to prosecutor misconduct]; People v. Mendoza Tell (1997) 15 Cal.4th 264, 266-267 [failure to move to suppress evidence].) Consequently, where, as in this case, the record is silent, the issue must be raised not on direct appeal but on habeas corpus, which allows for an evidentiary hearing where the reasons for the attorney’s actions or omissions can be explored. (People v. Mendoza Tell, supra, at p. 267.) Accordingly, we will not address the merits of defendants’ contentions.
THE EVIDENCE SUPPORTS THE ROBBERY VERDICT
Both defendants contend that there is insufficient evidence to support the robbery verdicts because the uncontradicted evidence shows that the police arrived before defendants had removed the “loot” and reached a place of temporary safety. They contend that the “transportation rule,” which provides that a robbery is a continuing crime until the perpetrator removes the property from the victim’s control and reaches a place of temporary safety with the property (People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166), should apply not only against a defendant to find that an act was committed during the course of an ongoing robbery but also to assist a defendant who is interrupted during the commission of a robbery and has not yet attained a place of temporary safety with the victim’s property. They contend that they should have been convicted only of attempted robbery.
“[F]or purposes of establishing guilt, the transportation requirement is initially satisfied by evidence of slight movement” of the victim’s property. (People v. Cooper, supra, 53 Cal.3d at p. 1165.) Thus, although transportation continues until the perpetrator has reached a place of temporary safety (ibid.), it has been accomplished as soon as the perpetrator has gained control of the victim’s property by force or fear and has removed it from the victim’s possession. Here, the evidence showed that Loya took Mendoza’s wallet by force, after having tied him up, and had it in his possession when Deputy Zapata spoke to him in the hallway. The evidence also shows that Penaloza took Maria Garcia’s cell phone from her hand, while he and the others pointed guns at her. Zapata found the cell phone in Penalization's pocket when he patted him down. This evidence satisfies the transportation requirement as to both robberies. Consequently, both were complete, for purposes of establishing guilt, at the time Zapata arrived and prevented their escape.
SECTION 654 DOES NOT REQUIRE STAYING IMPOSITION OF SENTENCE ON COUNT 7, 8 OR 9
In addition to one count of robbery as to each victim, Loya was convicted of one count of false imprisonment as to Mendoza and one count of making criminal threats as to each victim. Loya contends that the sentences imposed on the false imprisonment and criminal threats counts should have been stayed pursuant to section 654.
Section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Preliminarily, we note that although Penaloza was convicted of both robberies, of false imprisonment of Mendoza and of criminal threats as to Garcia, he does not contend in his own brief that section 654 precludes imposition of an unstated sentence on any count. He does join in “any argument set forth in Loy's opening brief which would work [to] [Penalization's] benefit in this appeal.” Although an appellant has the right to join in an argument made by a co-appellant (Cal. Rules of Court, rule 8.200(a)(5)), each appellant nevertheless has the burden of demonstrating both error and prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; People v. Cooley (1997) 52 Cal.App.4th 964, 972.) Where, as in this case, Loya argues that multiple criminal acts comprised an indivisible transaction in pursuit of a single objective, the determination whether section 654 applies is largely fact-dependent. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657 (Nichols).) Facts which mandate the staying of a sentence for one defendant may not apply to a co defendant. Penaloza does not explain how Loy's section 654 argument pertains to him. Consequently, his blanket joiner in such arguments as “may” benefit him is ineffective with respect to this issue.
We now turn to Loy's argument. Section 654 prohibits multiple punishment if the defendant harbored a single intent and objective. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) If all of the offenses “were merely incidental to, or were means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other,” he may be punished for each offense. (People v. Harrison (1989) 48 Cal.3d 321, 335.) A court’s finding that crimes were or were not incidental to one another and represent a single criminal intent must be upheld if it is supported by substantial evidence. (Nichols, supra, 29 Cal.App.4th at p. 1657.)
Loya contends that the evidence shows that the false imprisonment of and the criminal threat against Mendoza (counts 7 and 9, respectively) were part and parcel of his “intent and objective” to rob Mendoza. We disagree.
The evidence shows the following sequence of events: When Loya grabbed Mendoza and pulled him into the house, defendants pointed guns at him and demanded that Mendoza tell them where the money was. They asked about money from the restaurant and asked where the safe was. When Mendoza said he didn’t know, they took him to the room where Maria was and tied him up. As they dragged him toward the room, they kept asking about the money and the safe, but he repeated that he didn’t know. Once inside the room, Loya threw him to the floor, tied his hands behind his back and began searching him. Loya removed Mendoza’s wallet from his pocket and pulled out the $35 he had in the wallet. As Loya searched Mendoza, he hit him with his fist and told him to be quiet and not ask any questions. Both defendants left the room. Mendoza then heard the police arrive. After Deputy Zapata came into the room, Maria helped Mendoza free himself. At some point during the incident, while the defendants were asking him where the money was or where the safe was, Loya threatened to “off” him if he did not tell.
The court found that the threat made to Mendoza was separate from the robbery because it occurred only after the police arrived and that the objective of the threat was to keep Mendoza quiet. This finding is not supported by the record. However, the threat to “off” Mendoza was not part of the robbery of Mendoza, i.e., the forcible taking of his wallet. Rather, it was part of the attempt to rob Maria Garcia of money from the restaurant which defendants believed to be in the house. Similarly, the record supports the conclusion that the act of falsely imprisoning Mendoza was not done to facilitate the theft of Mendoza’s wallet, but to facilitate the theft of the Garcias’ money. The act of stealing his wallet appears to have been an afterthought rather than the objective.
The purpose of section 654 is to ensure that the defendant’s punishment will be commensurate with his culpability. A person who commits an act of violence against multiple victims is more culpable than a person who commits such an act against a single victim. (People v. Solis (2001) 90 Cal.App.4th 1002, 1023.) Consequently, section 654 does not preclude imposition of separate sentences for crimes of violence committed against different victims, even if all of the acts are in furtherance of a single objective. (People v. Miller (1977) 18 Cal.3d 873, 885.) Issuance of a criminal threat in violation of section 422 is a crime of violence for purposes of section 654. (People v. Solis, supra, at pp. 1023-1024.) Similarly, false imprisonment at gunpoint is a crime of violence for this purpose. Both were committed against Mendoza to facilitate the robbery of Maria Garcia. Accordingly, section 654 does not prohibit imposition of unstated sentences for false imprisonment and criminal threats committed against Mendoza.
Section 654 also does not preclude imposition of an unstated sentence on count 8, the criminal threat against Maria. The threat on which the prosecutor relied was not the threat to kill Maria unless she told defendants where the money was, but the threat to kill her unless she told the police that she knew them: Maria testified that once defendants were aware that Deputy Zapata had arrived, Loya told her that if she told Zapata that she did not know him, he would come back and kill her “wherever you are.” Threats made to avoid detection and conviction by dissuading and intimidating a witness have an objective independent of the underlying crime. (Nichols, supra, 29 Cal.App.4th at p. 1657.) Consequently, section 654 does not apply to count 8.
DISPOSITION
The judgment is affirmed as to both defendants.
We concur: Hollerith, Acting P.J., Miller, J.