Opinion
B291014
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. RODNEY JACOB RENDEROS et al., Defendants and Appellants.
Julie Caleca, under appointment by the Court of Appeal, for Defendant and Appellant Rodney Jacob Renderos. Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Valencia Tavira. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA102552) APPEAL from judgments of the Superior Court of Los Angeles County. Stan Blumenfeld, Judge. Affirmed. Julie Caleca, under appointment by the Court of Appeal, for Defendant and Appellant Rodney Jacob Renderos. Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Valencia Tavira. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendants Rodney J. Renderos and Jesus V. Tavira (together, Defendants) of second-degree robbery and found true firearm enhancements. On appeal, Defendants contend the trial court erred in denying Tavira's severance motion, improperly instructing the jury with CALCRIM No. 315, and imposing fines and fees in violation of their constitutional rights. They also contend the prosecutor vouched for witnesses during closing argument. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The night of November 25, 2017, Richard G. heard a knock at the door to his house. Richard's mother and brothers, the youngest of whom was three years old, were in the house at the time. Richard saw a man, whom he later identified as Tavira, standing at the door. Tavira asked Richard to come outside and do him a favor, but Richard refused, stating "I don't know you." Tavira was with another man. At trial, Richard said he was "95 percent" certain the man was Renderos.
Tavira was wearing gloves and was reaching into his pocket, which concerned Richard. Richard locked the security screen door, and Tavira started raising his voice.
Richard called for his older brother, Victor, who came to the door. Victor saw Renderos standing outside but did not immediately recognize him. Renderos said "I want my money," to which Victor responded, "I don't know you. I don't owe you nothing." Tavira, whom Victor had never seen before, was standing a few feet away. At trial, Victor said he was "100 percent sure" it was Tavira and there was "no doubt in [his] mind."
When Renderos came closer to the door, Victor recognized him and remarked, "Aren't you [Rodney]?" Victor and Renderos had a mutual friend named Roberta, through whom they had interacted on four prior occasions. One time, Victor had a 20 to 30 minute conversation with the mutual friend while Renderos sat nearby and listened. The other interactions were brief, the most recent being in 2015.
The court reporter transcribed the name as "Ronnie." Victor clarified he was actually saying "Rodney," and the confusion was due to his difficulty speaking. However, Victor previously told a police officer the man's name was "Ronnie," and spelled it out for the officer in that way.
Renderos did not answer Victor's question and again demanded, "I want my money." He then said to Tavira, "take it out and show him that we're not playing." Tavira approached the door, revealed a chrome handgun, pointed the gun in Victor's direction, and demanded Victor give him money.
At some point, Renderos picked up Victor's bicycle, and Tavira remarked, "It's up to you if you want to take it. Take it." Renderos started running with the bicycle and Tavira followed. Victor did not try to stop them because he was afraid he would be shot.
As Victor was calling 911, he heard the sound of the plastic tarp that was covering his brother Richard's motorcycles. Victor later went outside and saw one of the motorcycles was missing.
Around this time, a neighbor saw a white pickup truck in Victor's driveway, which drove off just as the police arrived. A responding police officer discovered an abandoned white pickup truck parked in the middle of the street a few houses down from Victor's. He found in the truck a loaded chrome handgun and paperwork indicating the truck belonged to Tavira. Victor's bicycle was in the bed of the truck. Richard's motorcycle was in the middle of the street, close to the truck.
A few weeks after the incident, Victor identified Renderos in a six-pack photographic lineup. He was not able to identify Tavira. Richard identified Tavira and Renderos in six-pack photographic lineups.
The defendants were each charged by amended information with one count of second-degree robbery (Pen. Code, § 211). It was further alleged that Tavira personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)). As to Renderos, it was alleged a principal in the robbery was armed with a firearm (§ 12022, subd. (a)(1)).
All future undesignated statutory references are to the Penal Code.
At trial, the People presented evidence establishing the facts summarized above. Defendants did not present any evidence.
The jury convicted Defendants as charged and found true the firearm enhancements. The court sentenced Renderos to an aggregate term of three years, consisting of the low term of two years for the robbery plus one year for the firearm enhancement. The court sentenced Tavira to an aggregate term of 12 years, consisting of the low term of two years for the robbery plus 10 years for the firearm enhancement. The court imposed on each defendant various fines and assessments.
Defendants timely appealed.
DISCUSSION
I. The Trial Court Did Not Err in Denying Tavira's Severance Motion
Tavira contends the trial court's denial of his severance motion prevented him from exercising his fundamental right to testify in his own defense, thereby denying him a fair trial and due process. We disagree.
A. Background
In the middle of jury selection, Tavira moved to sever his trial from Renderos's trial. According to the motion, Tavira had planned to testify at trial in accordance with his prior statement to police. In that statement, Tavira said Renderos asked him to drive to the victims' house to collect money owed to Renderos. Tavira did not know Renderos had a gun until they arrived at the house. At that point, Tavira took the gun to prevent anyone from getting hurt and did not point it at anyone.
The severance motion represented that the morning of the first day of trial, Tavira told his counsel he would testify only if assured he would not go to prison. Renderos purportedly told Tavira he would be known as a "snitch" in prison, people in prison do not like snitches, and people in prison had been "notified." Tavira's eyes were red and watery during the conversation with counsel, but he denied that Renderos had threatened him.
Attached to the motion was an unsigned note drafted by Tavira's counsel recounting the above conversation. At the hearing on the motion, the court pointed out there was nothing in the note indicating Tavira was specifically concerned about testifying at a joint trial. The court asked whether Tavira would testify in support of the motion, and counsel responded that he would not.
The court denied the motion. It noted the motion was not "adequately supported," and Tavira's refusal to submit a declaration or testify in support of the motion meant the court could only speculate as to his motivations for bringing it. It also was not clear that having a separate trial would alleviate Tavira's concerns given he may still be labeled a "snitch" for testifying or for his prior statements to police. In addition, the record did not indicate when Tavira first became concerned about testifying and it was inconceivable the "snitch" issue had not arisen earlier.
The court also determined severing the trials would be prejudicial. The court noted an effective instruction to the jury might not be possible and it may have to declare mistrial in Renderos's case.
B. Relevant Law
Our Legislature has expressed a strong preference for joint trials, as reflected in section 1098, which states in pertinent part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." (§ 1098; see People v. Souza (2012) 54 Cal.4th 90, 109 (Souza).) Under this provision, a joint trial is the rule and separate trials are the exception. (People v. Cleveland (2004) 32 Cal.4th 704, 726 (Cleveland).)
Severance may be necessary "if a codefendant has made an incriminating confession, association with codefendants may be prejudicial, evidence on multiple counts may cause confusion, there may be conflicting defenses, or a codefendant may give exonerating testimony at a separate trial." (Cleveland, supra, 32 Cal.4th at p. 726.) Severance is also warranted when there is a serious risk that a joint trial would compromise a defendant's specific trial right. (Souza, supra, 54 Cal.4th at p. 109.)
We review the denial of a severance motion for abuse of discretion " 'based upon the facts as they appeared when the court ruled on the motion.' " (Souza, supra, 54 Cal.4th at p. 109.) If the ruling was proper when made, we may nonetheless reverse a judgment upon a showing that joinder resulted in gross unfairness amounting to a denial of due process. (Ibid.; see Cleveland, supra, 32 Cal.4th at p. 726.)
C. Analysis
Here, the trial court did not abuse its discretion in denying Tavira's severance motion. Initially, the motion was not supported by competent evidence. The only evidentiary support for it was an unsigned and unsworn "note" from counsel recounting her conversation with Tavira, which was hearsay. At the hearing on the motion, the court gave Tavira the opportunity to make a proper evidentiary record, but he declined to do so. The court did not abuse its discretion in refusing to grant the motion in the absence of competent supporting evidence.
Even if counsel's note and the hearsay contained in it were competent evidence, we would still find no abuse of discretion. Tavira insists his motion "made clear" he was "intimidated from testifying by co-defendant Renderos'[s] statement that there would be retaliation against [him] in prison if he did testify adversely to Renderos." Tavira, however, did not express to his counsel that his fear of retaliation was specifically linked to testifying at a joint, as opposed to separate, trial. As a result, there was some doubt as to whether severance would address Tavira's underlying concerns. The trial court identified this evidentiary gap and offered Tavira the opportunity to clarify the record; Tavira declined to do so. The court did not abuse its discretion in denying the severance motion under such circumstances. Moreover, because Tavira has not shown joinder was the reason he declined to testify, we also cannot say the court's decision denied him due process or a fair trial.
II. The Prosecutor Did Not Improperly Vouch for Witnesses
Defendants contend the prosecutor improperly vouched for the People's witnesses during her closing argument. We disagree.
A. Background
During closing argument, the prosecutor discussed Victor's testimony and credibility: "Take a look at Victor [G.] as he was testifying and judge for yourself whether you find him to be credible. Ask yourself what bias did he have. What motive did he have to lie about this. [¶] He got up on the stand. He was very straightforward in his answers."
Renderos's counsel objected that the prosecutor was vouching. The court overruled the objection and reminded the prosecutor to "make sure you're tying it to what the evidence appeared to be and that this is argument." There were no further objections.
After closing arguments, but before the jury began deliberating, Renderos's counsel told the court she was concerned there were other instances in which the prosecutor had vouched for the witnesses during her closing argument. Counsel said she was considering asking the court to admonish the jury before it started deliberating the next morning. The court responded that it did not believe the prosecutor had vouched for the witnesses, but it would consider the issue if counsel decided to pursue it. The next day, counsel told the court she was not pursuing the issue.
B. Analysis
Defendants contend the prosecutor improperly vouched for the People's witnesses throughout her closing argument. However, with the exception of the prosecutor's statement that Victor was "straightforward in his answers," Defendants forfeited their claims by failing to object and request the trial court admonish the jury. (See People v. Thornton (2007) 41 Cal.4th 391, 454 ["defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety"].)
In addition to the remarks Renderos objected to at trial, Defendants complain the prosecutor improperly vouched for witnesses by using "words and phrases such as, 'I don't think' [citation], 'testif[ied] truthfully' [citation], 'he was very forthright' [citation], 'straightforwardly' [citation], 'testifying very forthrightly' [citation], and 'there was nothing significant . . . either witness deliberately lied about.' [Citation.]"
The Attorney General contends Tavira's failure to join Renderos's objection also forfeited his claim related to the statement that Victor was "straightforward in his answers." Generally, the failure to join in a codefendant's objection forfeits the issue on appeal. (People v. Wilson (2008) 44 Cal.4th 758, 793.) Here, however, any joinder would have been futile given the court's ruling on Renderos's objection. Accordingly, there is no forfeiture. (See id. at p. 793 [a codefendant need not join an objection if doing so would be futile].)
Renderos argues there was no forfeiture because any objections would have been futile once the trial court overruled his first objection. We disagree. Each alleged instance of vouching required separate consideration of the prosecutor's specific words and the context in which they were made. Because Defendants did not raise objections, the trial court did not perform that analysis; we do not presume to know how it would have ruled had it done so. In any event, even if contemporaneous objections would have been futile, the trial court gave defense counsel a second opportunity to argue the issue and seek an admonition, which counsel refused. This waived the claims.
Tavira argues in passing there is no forfeiture because an admonition would not have cured any harm. Tavira suggests an admonition is never sufficient to cure the harm caused by vouching if the prosecutor's case turns on an eyewitness's credibility. We are aware of no such categorical rule. Here, the prosecutor's remarks were nowhere near so extreme, inherently prejudicial, or divorced from the record that an admonition could not have cured any harm. (See People v. Dennis (1998) 17 Cal.4th 468, 521; People v. Price (1991) 1 Cal.4th 324, 462 [an "admonition that the prosecutor's opinion was irrelevant would have avoided any possible prejudice"].)
The only claim Defendants did not forfeit—concerning the prosecutor's comment that Victor was "very straightforward in his answers"—lacks merit. A prosecutor may comment on a witness's credibility based on the evidence at trial, but is prohibited from vouching for a witness's credibility by explicitly or implicitly referring to matters outside the trial record bolstering the person's testimony. (People v. Turner (2004) 34 Cal.4th 406, 432-433.) Prosecutors also may not seek to bolster their case by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office. (People v. Linton (2013) 56 Cal.4th 1146, 1207.)
Here, the prosecutor's remarks did not suggest she had other evidence, not presented to the jury, that would bolster Victor's credibility. Nor did they invoke her or her office's prestige, reputation, or depth of experience. Instead, the remarks merely expressed an observation that Victor answered questions directly, rather than evasively. This was a fair characterization of his testimony and well within the wide latitude granted to prosecutors in closing argument. (See People v. Boyette (2002) 29 Cal.4th 381, 433 ["a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case"]; People v. Hamilton (2009) 45 Cal.4th 863, 941 ["prosecutors have wide latitude to discuss and draw inferences from the evidence at trial"].) The prosecutor did not vouch for Victor's credibility.
Even if we were to overlook Defendants' forfeiture of their other vouching claims, we would reject them on the merits for the same reasons.
III. The Trial Court Did Not Err in Instructing the Jury with CALCRIM No. 315
The trial court instructed the jury with CALCRIM No. 315, which informed jurors they must decide whether an eyewitness gave truthful and accurate testimony. The instruction then set forth numerous questions jurors should consider in evaluating eyewitness testimony, including "How certain was the witness when he made an identification?" Despite acknowledging that binding Supreme Court precedent is against them, Defendants contend this instruction was improper because there is limited correlation between an eyewitness's certainty and the accuracy of the identification. The issue is forfeited and also lacks merit.
Initially, we agree with the Attorney General that Defendants forfeited these claims by failing to request the trial court modify CALCRIM No. 315 to delete the reference to the certainty factor. In People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez), the California Supreme Court found forfeiture under similar circumstances. In that case, the defendant argued it was error to instruct the jury that, in evaluating the accuracy of an eyewitness identification, it could consider " 'the extent to which the witness is either certain or uncertain of the identification.' " (Id. at p. 461, fn. omitted.) The Supreme Court concluded the defendant forfeited the claim by failing to request a modification, explaining "[i]f defendant had wanted the court to modify the instruction, he should have requested it. The trial court has no sua sponte duty to do so." (Ibid.) The same is true here. Defendants' failure to object and request modification of CALCRIM No. 315 has forfeited the issue on appeal.
Defendants insist their failure to raise the issue below is excused because any objection would have been futile under binding Supreme Court precedent. As Defendants correctly point out, in Sánchez, supra, 63 Cal.4th 411, the Supreme Court reiterated well-established precedent holding a jury may properly consider an eyewitness's certainty when evaluating his or her testimony. (Id. at p. 462; see People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232; see also People v. Wright (1988) 45 Cal.3d 1126, 1141, 1166.) This precedent, Defendants assert, absolved them of the need to object to CALCRIM No. 315.
Reviewing courts may excuse a failure to object if requiring an objection would have placed an unreasonable burden on the defendant to anticipate unforeseen changes in the law. (People v. Rangel (2016) 62 Cal.4th 1192, 1217; People v. Edwards (2013) 57 Cal.4th 658, 705; see People v. Odom (1969) 71 Cal.2d 709, 717 [finding no forfeiture where a change in the law was substantial and unforeseeable].) That exception does not apply in this case, however, because the change in the law Defendants are advocating was reasonably foreseeable. In Sánchez, which was decided before Defendants' trial, the majority indicated a willingness to reexamine the eyewitness-certainty issue, albeit in a case with different facts. (Sánchez, supra, 63 Cal.4th at p. 462.) Justice Liu went further in his concurring opinion, writing: "In light of developments in scientific research and recent case law, there is a substantial question whether it is proper for trial courts to instruct that witness certainty is a factor bearing on the accuracy of an identification that juries should consider. [¶] The sooner we reexamine this issue, the better . . . ." (Sánchez, supra, at p. 498 (conc. opn. of Liu, J.).) It appears the Supreme Court is poised to do exactly that in connection with its review of People v. Lemcke, review granted October 10, 2018, S250108.
In Sánchez, the eyewitnesses expressed various degrees of certainty in their identifications. The majority noted a reexamination of the eyewitness-certainty issue "should await a case involving only certain identifications." (Sánchez, supra, 63 Cal.4th at p. 462.) This is, arguably, such a case.
Renderos contends the fact that the Supreme Court granted review in Lemcke constitutes a change in the law that excuses his failure to raise the issue below. The Supreme Court, however, has not issued an opinion in Lemcke. Until it does so, there has been no change in the law.
The majority and concurring opinions in Sánchez made it reasonably foreseeable the Supreme Court would reconsider the witness-certainty issue and change the law in Defendants' favor. As a result, the regular forfeiture rules apply and Defendants were required to raise the issue in the trial court in order to preserve their claims for appeal. Their failure to do so constitutes forfeiture.
Renderos argues in passing he was not required to object because the instruction affected his substantial rights. He fails, however, to identify the substantial rights that were affected.
Even if we overlooked Defendants' forfeiture, we would reject their claims on the merits. As noted above, the California Supreme Court has held a jury may consider an eyewitness's certainty in evaluating his or her testimony. (See Sánchez, supra, 63 Cal.4th at p. 462; People v. Johnson, supra, 3 Cal.4th at pp. 1231-1232; see also People v. Wright, supra, 45 Cal.3d at p. 1166.) That authority remains good law until the Supreme Court says otherwise, and we are bound by it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].)
IV. There was no Cumulative Error
Renderos contends the cumulative effect of multiple errors infected his trial with unfairness so as to make the resulting conviction a denial of due process. Because we have found no error, there can be no cumulative error.
V. Defendants Forfeited their Arguments Regarding the Fines and Assessments
At sentencing, the trial court imposed on each defendant a $300 restitution fine (§ 1202.4), $40 court operation assessment (§ 1465.8), $30 crime conviction assessment (Gov. Code, § 70373), and $10 crime prevention fine (§ 1202.5), plus a penalty assessment of $29 and criminal surcharge of $2. Neither defendant objected.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Defendants challenge the imposition of these fines and assessments on federal constitutional grounds and request a stay until the People prove their ability to pay them. Defendants, however, concede they did not raise this issue in the trial court. For the reasons set out in People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen), we find the issue forfeited. (See also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 [finding forfeiture where defendant failed to object to fines and fees under sections 1202.4, 1465.8, and 290.3, and Government Code sections 70373 and 29550.1, based on inability to pay]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [citing Frandsen to find Dueñas issue forfeited for failure to object in trial court].)
We are not persuaded by Renderos's contention that Frandsen and the other cases finding forfeiture are distinguishable because those cases involved restitution fines above the statutory minimum. In Frandsen, we explained the defendant was obligated to object to the maximum restitution fine in part because section 1202.4, subdivision (c), permits a trial court to consider the defendant's ability to pay when deciding whether to impose a restitution fine above the statutory minimum. (Frandsen, supra, 33 Cal.App.5th at p. 1154.) Here, however, the trial court imposed minimum restitution fines, and section 1202.4, subdivision (c), implicitly forbids a trial court from considering a defendant's ability to pay when imposing a minimum restitution fine.
We do not find this distinction meaningful for two reasons. First, although Defendants did not have a statutory basis to object to the minimum restitution fines, they did have a statutory basis to object to the crime prevention fines. Section 1202.5, subdivision (a), requires that in any case where a defendant is convicted of robbery, the court shall impose a $10 crime prevention fine in addition to any other penalty or fine imposed. It further provides: "If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (§ 1202.5, subd. (a).) Under this provision, if Defendants believed they did not have the ability to pay all of their fines and assessments, they could have objected to their crime prevention fines on that basis. Their failure to do so forfeits the issue. (See People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Case (2018) 5 Cal.5th 1, 53.)
Although the crime prevention fines were relatively small, Defendants could have argued they were unable to pay them given the imposition of the other fines and assessments, which were more substantial. --------
Moreover, our forfeiture analysis in Frandsen was not limited to the restitution fine or dependent on the defendant's failure to raise an objection under section 1202.4. We also concluded the defendant forfeited his claims related to the assessments imposed under section 1465.8 and Government Code section 70373, for which there were no statutory bases to object. We explained that, "[a]lthough both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments." (Frandsen, supra, 33 Cal.App.5th at p. 1154.) We further explained that Dueñas was foreseeable given it was premised on longstanding constitutional principles and represented a clarification of existing law rather than new law. (Id. at pp. 1154-1155.) This reasoning applies with equal force to each fine and assessment imposed on Defendants in this case, including the minimum restitution fines.
We further reject Tavira's argument that his claim is not forfeited because the court's imposition of the fines and assessments without an ability-to-pay determination resulted in the imposition of an unauthorized sentence. "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354.) As Tavira acknowledges, it applies only where the sentence could not be lawfully imposed under any circumstances in a particular case. (Ibid.) Here, Tavira implicitly concedes the court could have imposed each fine and assessment if only it had made certain factual findings after conducting an ability-to-pay hearing. In other words, there are certain circumstances in which the sentence would have been proper. As such, the "unauthorized sentence" exception to the general forfeiture rules does not apply.
We are also unpersuaded by Tavira's contention that there was no forfeiture because an objection is not required when the trial court failed to exercise discretion vested in it by law. The problem with this argument is that Tavira does not actually contend the trial court failed to exercise its discretion. Rather, he contends the opposite: the trial court had no discretion to impose the fines and assessments without first determining he had the ability to pay them. Thus, his reference to a failure to exercise discretion is a non sequitur.
DISPOSITION
We affirm the judgments.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
STRATTON, J.