Filed 6/13/14 P. v. Santos CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057284
v. (Super.Ct.No. RIF1105634)
MICHAEL SANTOS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.
Affirmed in part; reversed in part with directions.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
1 Joshua Najera met Thomas Bedolla on a dating website. Najera agreed to meet
him at a nearby house. When Najera arrived, defendant took him into a garage, which
had been converted into a seating and sleeping area. Defendant, Najera and Bedolla sat
together talking. Najera got nervous and got up to leave. Defendant grabbed Najera’s
cellular telephone. Defendant turned on a stun gun he had behind his back and threatened
to “tase” him if he tried to leave. Najera was able to escape and his phone was later
found in defendant’s backyard. Defendant was convicted of first degree robbery and
false imprisonment.
Defendant now contends on appeal as follows: (1) The prosecutor committed
misconduct during closing argument; (2) If he waived his claim of prosecutorial
misconduct, he received ineffective assistance of counsel; and (3) He was improperly
sentenced on the robbery count.
Although the prosecutor committed misconduct, it was not prejudicial. We
remand for resentencing in order for the trial court to properly impose the sentence on the
first degree robbery conviction.
2 I
PROCEDURAL BACKGROUND
Defendant was found guilty by a Riverside County jury of first degree robbery
(Pen. Code, § 211)1 and false imprisonment (§ 236). The jury found true the allegations
for both counts that during the commission of the offenses, defendant personally used a
deadly and dangerous weapon, a stun gun, in violation of section 12022, subdivision
(b)(1). After waiving his right to a jury trial, in a bifurcated proceeding, the trial court
found defendant had served four prior prison terms (§ 667.5, subd. (b)). The trial court
sentenced defendant to 11 years and 8 months in state prison.
II
FACTUAL BACKGROUND
On November 3, 2011, Joshua Najera visited a website used by homosexual men
to make dates and meet friends. Najera met a man named Thomas Bedolla on the
website and they spoke online for 15 to 20 minutes. They both discovered they were
located less than one mile from each other. Najera agreed to meet up with Bedolla.
Najera drove to the house which was located on Lewis Avenue in Riverside.
When he arrived, defendant emerged from a side gate and met him outside. Najera
followed defendant back through the side gate and went in a door to the garage. Inside
the garage there was a bed, couch, computer and camera mounted on a tripod. Bedolla
1 All further statutory references are to the Penal Code unless otherwise indicated.
3 was sitting on the couch. Najera sat down next to him. Defendant sat across from them,
about two feet away.
Najera noticed that it was smoky in the room and he asked them what they had
been smoking. They told him that they had been smoking “crack.” This made Najera
uncomfortable. Najera told them that he was going to leave. Najera stood up to leave.
He had his keys in one hand and his cellular telephone in the other hand. Defendant
grabbed at his keys but Najera was able to hold on to them. Defendant was able to take
his phone.
Defendant got right into Najera’s face and told him he could not leave. Najera
saw a black object in defendant’s hand and he heard a crackling noise which he
recognized as a taser. Defendant told him not to do anything to make him “tase” him.
Najera had used a taser gun before and was familiar with the sound.
Najera asked Bedolla to help him but he just sat on the couch. Defendant told
Najera that Bedolla was his friend and wasn’t going to help him. Defendant “smirked” at
him. Najera felt that if he tried to take his phone back from defendant, he would use the
taser on him.
Najera then jumped over the couch and ran out of the garage. Defendant followed
him. Najera stopped for a moment and asked defendant to give him his phone back.
Defendant refused and went back to the backyard. Najera walked to a neighbor’s house
across the street to call the police.
4 Bedolla also testified. Bedolla had been to defendant’s house on one occasion
prior to November 3, 2011. Defendant had invited him to his house that morning for
breakfast. Bedolla talked online to Najera and invited him over to the house.
Bedolla and defendant were in the garage. When Najera arrived, defendant went
outside to get him. Najera sat down next to Bedolla. At some point, defendant started
getting angry and talked about someone taking money from him. Najera appeared
confused and did not seem to know what defendant was talking about. Najera tried to
stand up to leave at one point and defendant pushed him on the chest back onto the
couch. Bedolla never saw defendant take Najera’s phone but he did hear Najera ask
defendant to give his phone back.
Bedolla heard a clicking that sounded like an electrical noise coming from behind
defendant. Bedolla did not see anything in defendant’s hand. Bedolla thought the noise
sounded like a taser, which he had heard before on television. Najera jumped over the
couch and ran out of the garage.
Najera spoke to the 911 operator and stated that his phone had been stolen. Najera
told the operator that “they” tried to keep him in the house by using a taser. They told
him he could not leave and then took his phone. Najera also said they were smoking
crack. Najera heard a zapping noise and saw something black in the right hand of the
person who took the phone. Najera advised the operator that he believed the men were
still in the house.
5 At approximately 9:30 a.m., Riverside Police Officer Cristina Arangure responded
to Najera’s 911 call. When Officer Arangure arrived, Najera was across the street from
defendant’s house and waved her down. Najera was shaking and was scared. Najera told
her that he had been robbed and the suspects were still across the street. A helicopter
arrived and made an announcement that the occupants of the house should step outside.
Two males stepped out into the backyard but then went back in the house. Eventually,
defendant’s brother let the police officers into the house. Defendant and Bedolla were
inside the house in a bedroom.
In the garage, Officer Arangure found what she described as a stun gun2 sitting on
a bookshelf. The stun gun was operational. Najera’s phone was found inside the
branches of a potted plant in the backyard. The area was just outside the door of the
garage. Defendant showed the hiding location to Officer Arangure. The phone was
returned to Najera. Officer Arangure found three or four other phones in defendant’s
bedroom. No drugs or paraphernalia were found in the house or garage.
Defendant presented no evidence.
III
PROSECUTORIAL MISCONDUCT
Defendant asserts that the prosecutor committed misconduct during closing
argument by vouching for the strength of the case by invoking the prestige and reputation
2 Officer Arangure indicated that a taser has wires that shoot out at the person while a stun gun must be directly placed on a person. The weapon found in the garage did not have wires and was a stun gun.
6 of the district attorney’s office. Respondent agrees that the prosecutor committed
misconduct but argues that the claim has been forfeited because defense counsel failed to
object at the time of the misconduct, and regardless, the misconduct was not prejudicial.
Defendant contends that if we find that his claim has been forfeited, he received
ineffective assistance of counsel.
A. Additional Factual Background
During the opening argument, the prosecutor argued as follows: “What happened
in this case is clear, ladies and gentlemen. What happened is the defendant is guilty as
charged, as charged. The charges that were brought by the People in this case are true.
Those charges we wouldn’t have charged him with them if they were not. The evidence
has proven that beyond a reasonable doubt.” Defense counsel objected on the ground it
misstated the law. The trial court overruled the objection.
B. Prosecutorial Misconduct
‘“Under California law, a prosecutor commits reversible misconduct if he or she
makes use of “deceptive or reprehensible methods” when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted. [Citation.].”3 (People v.
Fuiava (2012) 53 Cal.4th 622, 679.)
3 We note that defendant specifically states in his opening brief that there was no federal due process violation and makes no claim that his federal constitutional rights were violated by the prosecutorial misconduct. As such, we only evaluate his claim under the California Constitution.
7 ‘““In order to preserve a claim of misconduct, a defendant must make a timely
objection and request an admonition; only if an admonition would not have cured the
harm is the claim of misconduct preserved for review.” [Citation.]’” (People v.
Gonzales (2011) 51 Cal.4th 894, 920.)
Defendant’s counsel objected to the prosecutor’s comments but on the ground that
it misstated the law, not that it was misconduct. Respondent argues the argument was
forfeited by this failure to contemporaneously object and request a jury admonition.
Defendant claims that an objection to the argument would have been futile and that an
admonition would not have cured the harm. In the alternative, he claims he received
ineffective assistance of counsel due to his counsel’s failure to properly object. Rather
than engage in a lengthy discussion of these issues, and for the sake of judicial economy,
we will the address the merits of defendant’s prosecutorial misconduct claim.
“[I]t is misconduct for prosecutors to vouch for the strength of their cases by
invoking their personal prestige, reputation, or depth of experience, or the prestige or
reputation of their office, in support of it. [Citations.]” (People v. Huggins (2006) 38
Cal.4th 175, 206-207.) “‘Impermissible “vouching” may occur where the prosecutor
places the prestige of the government behind a witness . . . or suggests that information
not presented to the jury supports the witness’s testimony.’ [Citation.]” (People v.
Williams (1997) 16 Cal.4th 153, 257.) “Specifically, a prosecutor’s reference to his or
her own experience, comparing a defendant’s case negatively to others the prosecutor
knows about or has tried, is improper. [Citation.] Nor may prosecutors offer their
8 personal opinions when they are based solely on their experience or on other facts outside
the record. [Citations.].” (Huggins, at p. 207.)
In People v. Alvarado (2006) 141 Cal.App.4th 1577, the prosecutor stated (in
response to attacks by defense counsel alleging improper coaching of a prosecution
witness) that she had “a duty and I have taken an oath as a deputy District Attorney not to
prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged
is the person who did it.” (Id. at p. 1583, italics omitted.) The appellate court found
misconduct because it “impermissibly invited the jury to convict Alvarado based on her
opinion that he was guilty and on the prestige of her office . . . . The only reasonable
inference from these comments is that (1) the prosecutor would not have charged
Alvarado unless he was guilty, (2) the jury should rely on the prosecutor’s opinion and
therefore convict him, and (3) the jurors should believe [the witness] for the same
reason.” (Id. at p. 1585.)
The comments made in this case are similar to those made in Alvarado. Here, the
prosecutor stated in opening argument that the charges would not have been filed by the
People if they were not true. Such statement improperly invoked the prestige of the
district attorney’s office and constituted prosecutorial misconduct.
C. Prejudice
Having found that the prosecutor committed misconduct, we must determine
whether it was prejudicial. “[O]ur state law requires reversal when a prosecutor uses
‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation]
and “‘it is reasonably probable that a result more favorable to the defendant would have
9 been reached without the misconduct’” [citation].” (People v. Davis (2009) 46 Cal.4th
539, 612.)
Here, the evidence that defendant was guilty was overwhelming. Defendant was
convicted of first degree robbery. Section 211 defines robbery as “the felonious taking of
personal property in the possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.” It is first degree robbery if
committed in an inhabited dwelling. (§ 212.5, subd. (a).) “The element of force or fear is
satisfied if the force or fear caused the victim to give up his or her property.” (People v.
Smith (1995) 33 Cal.App.4th 1586, 1595.)
Here, Najera was taken by defendant to a small garage where Bedolla was waiting
for him. As they sat very close together, Bedolla and defendant disclosed they had been
smoking crack, which made Najera nervous. According to Najera, he stood up and tried
to leave, but defendant grabbed his phone against Najera’s will. Bedolla did not see
defendant take the phone but claimed defendant pushed Najera back onto the couch.
Thereafter, defendant threatened to use the stun gun on Najera if he tried to leave. Najera
felt that if he tried to get the phone back from defendant, he would use the stun gun on
him. Strong evidence established that defendant took Najera’s phone through the use of
force or fear.
Defendant claims that if the misconduct had not occurred, the jury would have
found him only guilty of the lesser offense of petty theft which does not require force or
fear. However, if a defendant uses force or fear to retain an item, he is guilty of robbery.
(People v. McKinnon (2011) 52 Cal.4th 610, 686-687.) The evidence clearly established
10 that defendant either took the phone through the use of force, or retained the phone
through the use of force or fear. It is not reasonably probable that a result more favorable
to defendant would have been reached by the jury if the misconduct had not occurred.
Defendant also complains that if the misconduct did not occur, the jury would
have found him not guilty of false imprisonment. He claims that there was “room for
reasonable doubt” as to whether he succeeded in confining him for an appreciable length
of time. “False imprisonment is the unlawful violation of the personal liberty of
another.” (§ 236.) It occurs when the defendant intentionally restrains, confines or
detains another person without his or her consent for “‘“an appreciable length of time,
however short.”’” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) Here, defendant
took Najera’s phone and then threatened him not to leave while holding a stun gun
behind his back. Najera asked Bedolla for help, but he refused. Defendant told him that
Bedolla was not going to help him. At that point, Najera escaped. This “short” amount
of time was sufficient to establish false imprisonment and it is not reasonably probable
the jury would have found otherwise if the misconduct had not occurred.
Defendant points to the fact that the deliberations continued for almost two days in
arguing that the misconduct was prejudicial. The deliberations began in the early
afternoon at the conclusion of argument, then continued for another day, and finished at
some point on the following day. However, the length of deliberations “permits more
than a single interpretation of its meaning.” (In re Pratt (1999) 69 Cal.App.4th 1294,
1322.) Here, based on the totality of the circumstances, the length of deliberations did
not necessarily mean that this was a close case.
11 Based on the foregoing, we find that any misconduct committed by the prosecutor
was not prejudicial. It follows that if we were to conclude that defendant received
ineffective assistance of counsel due to his counsel’s failure to object, he could not
establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [prejudice
is shown by “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”].) We reject defendant’s claim that
reversal is warranted.4
IV
SENTENCING
Defendant contends the trial court improperly sentenced him on the first degree
robbery count and that remand for resentencing is necessary. Respondent agrees remand
to the trial court for clarification of the sentence is appropriate.
Defendant was convicted of first degree robbery. The probation officer’s report
stated that defendant was convicted of second degree robbery. As for the exposure
calculation, the probation report stated that the robbery was second degree and that the
sentencing range was two, three and five years.
In his sentencing memorandum, defendant requested probation, and in the
alternative, the low term of two years on the robbery. In its sentencing memorandum, the
4 Since we conclude that the misconduct in this case is not prejudicial, mandatory reporting of the prosecutor to the California State Bar is not required. (Bus. & Prof. Code, § 6086.7, subd. (a)(2); Cal. Code Jud. Ethics, canon 3D(2).)
12 People stated that the maximum sentence was 15 years but recommended a sentence of
11 years and 8 months. The prosecutor recommended that defendant be sentenced to the
midterm of six years on the first degree robbery, one year for the use of the stun gun,
eight months for the false imprisonment charge, and an additional four years for the prior
prison terms.
At the time of sentencing, the trial court first noted it had read the probation report
and the sentencing memorandums filed by both defendant and the People. Defendant’s
counsel stated that the proper sentencing range was two, four and five years because it
occurred in a detached garage. Defendant’s counsel argued a second degree robbery
sentence was appropriate. The trial court responded, “I will say I did see that
discrepancy. I went back and looked at the verdict forms signed by the jury, and the
verdict was first degree. For whatever reason that may be, they apparently found the
elements of first degree, and I have used the sentencing recommendations for that first
degree.”
The prosecutor responded that defendant should be sentenced on first degree
robbery. There was no dispute during the trial as to whether it was first or second degree
robbery.
The trial court moved to sentencing. It stated as follows: “In selecting the
appropriate prison term for each count, Court has considered the aggravating and
mitigating circumstances pursuant to Rules of Court 4.421 and 4.423. As to Count 1,
which the Court finds that the principal term, I am going to impose the middle term of six
years.”
13 B. Analysis
The punishment for the commission of first degree robbery generally is three, four
or six years. (§ 213, subd. (a)(1)(B).) However, “[i]f the defendant, voluntarily acting in
concert with two or more other persons, commits the robbery within an inhabited
dwelling house,” then the punishment is three, six or nine years. (§ 213, subd. (a)(1)(A).)
Section 213, subdivision (a)(1)(A) “operates as a sentence enhancement.” (In re
Jonathan T. (2008) 166 Cal.App.4th 474, 482.) As a result, in order to be sentenced
pursuant to section 213, subdivision (a)(1)(A), the allegation must be pleaded in the
information and found true beyond a reasonable doubt by the trier of fact. (Ibid.)
Here, the information did not allege that defendant acted in concert in committing
the robbery. The jury was instructed that in order to find defendant guilty of first degree
robbery it must find that, “[t]he robbery was committed in an inhabited dwelling. A
dwelling is inhabited if someone lives there and either is present or has left but intends to
return.” The jury did not make a finding that defendant acted in concert when
committing the robbery. Hence, the proper sentencing range was three, four or six years.
(§ 213, subd. (a)(1)(B).)
As noted, the trial court stated that it was imposing the middle term of six years as
to first degree robbery. Remand is appropriate in order for the trial court to resentence
defendant on count 1 taking into account the proper sentencing scheme set forth in
section 213, subd. (a)(1)(B).
14 V
DISPOSITION
Defendant's convictions are affirmed, as are his sentences for the false
imprisonment count, the enhancements and the prior/prison enhancements. His sentence
for count 1 is reversed and the matter is remanded to the trial court in order for it to
impose the appropriate sentence as stated in this opinion. Once defendant is resentenced,
the trial court shall forward of copy of the abstract of judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
HOLLENHORST Acting P. J.
CODRINGTON J.