People v. Rodriguez CA3 ( 2015 )

Filed 1/23/15 P. v. Rodriguez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C074676
Plaintiff and Respondent, (Super. Ct. No. 11F08115)
v.
ANGEL MICHAEL RODRIGUEZ,
Defendant and Appellant.
Veteran bank robber Angel Michael Rodriguez at age 55 robbed another bank
after a 16-year dry spell and was sentenced to 25 years to life under the three strikes law,
with an additional determinate term of 15 years for three serious felonies. On appeal, he
contends the trial court abused its discretion by refusing to strike his old robbery
convictions, and the prosecutor failed to present sufficient evidence of his federal prior
and four Oregon priors. In supplemental briefing defendant contends, and the Attorney
General agrees, that one of his prior convictions for second degree robbery must be
stricken because it was added to an amended information that was filed after the jury had
been discharged. The fifth strike prior conviction for second degree robbery on July 31,
1980, must be stricken. In all other respects, the judgment is affirmed.
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FACTS
On November 14, 2011, a man in a baseball hat and sunglasses grabbed cash from
a teller at Bank of the West in Sacramento; announced, “This is a robbery”; and as he
walked away, stated, “If anybody does anything I‟ll shoot.” The robbery was captured on
the bank‟s surveillance camera. Two of defendant‟s coworkers saw photographs of the
suspect on the news and identified defendant as the suspect. Bank tellers also identified
defendant with varying degrees of confidence. Defendant had gambled several times
during the month of November at Thunder Valley Casino, including on the day of the
robbery, and his bank account was overdrawn. The defense was mistaken identity. A
jury convicted defendant of one count of second degree robbery.
I
Defendant asserts the trial court abused its discretion by refusing to dismiss his
prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal. 4th 497
(Romero). Defendant argues that he had become a model citizen since his release from
federal parole, he had tremendous support from his family, and his most recent
transgression was due to a problem with gambling and not a return to his days as an
immature and irresponsible young robber with drug issues. Indeed, the trial court
recognized that defendant had committed most of his crimes when he was in his 20‟s and
30‟s, that he had married and his wife was supportive, that he appeared to have changed
the trajectory of his life, and that these factors made a “powerful argument” for
dismissing his prior convictions. The court expressly stated that it understood the
discretion with which it was vested to dismiss the convictions, and that it had reviewed
the written motion and supporting papers and argument of counsel. In short, the court
carefully and deliberately considered whether defendant‟s professed transformation
removed him from the spirit of the three strikes law.
We review a denial of a Romero motion for an abuse of discretion. (People v.
Carmony (2004) 33 Cal. 4th 367, 374 (Carmony).) “[A] trial court does not abuse its
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discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (Id. at p. 377.) Supreme Court Justice Janice Brown cogently explained:
“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes
the trial court‟s power to depart from this norm and requires the court to explicitly justify
its decision to do so. In doing so, the law creates a strong presumption that any sentence
that conforms to these sentencing norms is both rational and proper.
“In light of this presumption, a trial court will only abuse its discretion in failing to
strike a prior felony conviction allegation in limited circumstances. For example, an
abuse of discretion occurs where the trial court was not „aware of its discretion‟ to
dismiss [citation], or where the court considered impermissible factors in declining to
dismiss [citation]. Moreover, „the sentencing norms [established by the Three Strikes law
may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd” result‟
under the specific facts of a particular case.” (Carmony, supra, 33 Cal.4th at p. 378.)
The trial court certainly was aware of its sentencing discretion, and it did not
consider any impermissible factors. We must therefore determine whether the strong
presumption that defendant‟s sentence, which conforms to the sentencing norm,
somehow produces an arbitrary, capricious, or patently absurd result in this case. The
trial court articulated a well-reasoned catalogue of justifications for its decision to refuse
defendant‟s request to dismiss his prior convictions in the interest of justice.
The court observed that defendant‟s criminal history spanned four decades. His
federal conviction for bank robbery was in 1990, and he completed his federal parole in
1997. The jury here convicted him of robbing yet another bank in 2011. The court
explained in some detail its evaluation of defendant‟s criminal course of conduct as
follows: “But you‟ve been in prison virtually all of the 80‟s, and convicted at least four
times for various felonies in the 80‟s, and then again for the 1990 bank robberies.
“And what I don‟t understand or I should -- I‟ll never understand is how a man
like you, who had the love and support of his family and his church, a job, going to
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school, decides one day to walk into a bank. It could have been anything. Just commit
any crime.
“When you knew you were on the thinnest of ice. You were on thin, thin ice.
That is you know about the consequences of the three-strikes Law, or at least should
know. And you fell through the ice.
“And there‟s nothing I can do about that. Or I -- if I did, it wouldn‟t be right. It
wouldn‟t be within the spirit of the Three-Strikes Laws as the voters see it.”
The court might have concluded, as defendant so vehemently argues, that he was a
changed man and the latest robbery was an unfortunate aberration committed by a man in
his 50‟s as a result of a gambling problem, who was no longer subject to all the
indiscretions of a young man in his 20‟s and 30‟s who had been at the mercy of drugs and
other negative influences in his environment. The judge appreciated the strong support
defendant received from his family and church. But we cannot say the trial court abused
its discretion by concluding that the weight of his seven prior convictions and his return
to robbing a bank reflected the kind of recidivism and danger the three strikes law was
intended to capture. In short, reasonable minds might disagree about whether to strike
one or more of the prior convictions. That fact is not sufficient to establish that the trial
court abused its discretion by concluding that defendant‟s return to his decades-long
history of robbing innocent victims brought him within the spirit of the three strikes law.
Given its careful consideration of all the relevant facts and circumstances, its
understanding of the law and the scope of its discretion, and its careful enumeration of
the factors it considered, we cannot say the trial court abused its discretion in denying
defendant‟s Romero motion.
II
An out-of-state felony conviction cannot be used as a serious felony, and therefore
as a strike, unless the conviction includes all of the elements of a serious felony under
California law. (Pen. Code, § 667, subd. (a).) Defendant maintains that, for different
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reasons, the prosecution failed to present substantial evidence the federal conviction or
any of the Oregon convictions contained all of the requisite elements of a California
robbery. We begin with the federal conviction.
Federal Offense
In a March 1990 indictment, a federal grand jury charged defendant as follows:
“On or about February 16, 1990, in Marion County, in the District of Oregon, Angel
Michael Rodriguez, defendant herein, did by force, violence, and intimidation,
unlawfully and knowingly take from the presence of employees of the United Savings
Bank, Market-Lancaster Branch, 1565 Lancaster Drive, Northeast, Salem, Oregon, a sum
of money, to wit: Approximately $383.00 in United States currency, which money was
then and there in the care, custody, control and management of the United Savings Bank,
whose deposits were then and there insured by the Federal Deposit Insurance
Corporation; in violation of Title 18, United States Code, Section 2113(a).”
As the Supreme Court observed in People v. Miles (2008) 43 Cal. 4th 1074 (Miles),
the federal statute on bank robbery named in defendant‟s indictment includes two
paragraphs with very different elements. Mr. Miles, like defendant, contended that while
conviction of conduct under the first paragraph qualifies as a California robbery, and
therefore a serious felony under the three strikes law, the second paragraph does not. The
Supreme Court agreed. The court explained:
“The first paragraph of [title 18 United States Code] section 2113(a) described a
person who, „by force and violence, or by intimidation, [took], or attempt[ed] to take,
from the person or presence of another any property or money or any other thing of value
belonging to, or in the care, custody, control, management, or possession of, any bank,
credit union, or any savings and loan association.‟ [Citation.]
“Then, as now, the second paragraph of [title 18 United States Code]
section 2113(a) described a person who „enter[ed] or attempt[ed] to enter any bank, credit
union, or any savings and loan association, or any building used in whole or in part as a
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bank, credit union, or as a savings and loan association, with intent to commit in such
bank, credit union, or in such savings and loan association, or building, or part thereof, so
used, any felony affecting such bank, credit union, or such savings and loan association
and in violation of any statute of the United States, or any larceny.‟ [¶] . . . [¶]
“Penal Code section 1192.7, subdivision (c) sets forth the categories of
convictions California deems to be for serious felonies. Though there is no California
convictable offense of bank robbery, Penal Code section 1192.7, subdivision (c) lists a
crime of this name as a serious felony, a prior conviction for which may enhance the
sentence for a subsequent offense. [Citation.] For this purpose, Penal Code
section 1192.7 defines „ “bank robbery” ‟ as „to take or attempt to take, by force or
violence, or by intimidation from the person or presence of another any property or
money or any other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings and loan
association.‟ [Citation.]
“The California serious felony of bank robbery substantially coincides with the
offense described in the first paragraph of [title 18 United States Code]
section 2113(a) . . . . [Fn. omitted.] However, there is no California serious felony that
corresponds to the crime described in the second paragraph of section 2113(a). [Fn.
omitted.] Thus, evidence that the defendant suffered a previous conviction under
section 2113(a), standing alone, cannot establish that the conviction was for a serious
felony under California law.” (Miles, supra, 43 Cal.4th at pp. 1081-1082.)
For Mr. Miles, the fact the Supreme Court embraced his legal analysis of the
federal statute and its applicability to the California law of robbery proved to be a pyrrhic
victory. Even where, as here, the mere fact of conviction under the federal statute does
not prove the offense was a serious felony, otherwise admissible evidence from the entire
record may be examined to resolve the issue. (Miles, supra, 43 Cal.4th at p. 1082.) The
Supreme Court affirmed Mr. Miles‟s strike convictions based on reasonable inferences
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drawn from the entire record, including a notation by the trial judge describing the
offense committed under title 18 United States Code section 2113(a) as “bank robbery”
and, more significantly, the fact defendant pleaded guilty to an “armed” robbery that
involved “kidnapping.” (Miles, at pp. 1077, 1087-1088.) The court concluded, “It is
highly unlikely that one charged and convicted under section 2113(a) only for entering a
bank with felonious or larcenous intent, without an attempted or actual taking of property
by force and violence or intimidation, would also be found, in the course of the offense,
to have placed a victim‟s life in jeopardy by use of a dangerous weapon and to have taken
a hostage. [Fn. omitted.] In the absence of any rebuttal evidence as to the nature of the
prior conviction, the trial court was entitled, prima facie, to draw the more reasonable
inference that it was for committing the California serious felony of bank robbery.”
(Miles, at p. 1088.)
Defendant insists that in his case there is insufficient evidence beyond the mere
conviction to demonstrate the offense constituted a California robbery and qualifies as a
serious felony. Not so. The indictment, as quoted above, expressly charged defendant
with taking money from the bank employees “by force, violence, and intimidation.”
“Taking by force” brings the robbery within the ambit of the first paragraph of the federal
statute and its California analogue. Moreover, in his petition to enter a guilty plea,
defendant asked the court to accept his plea of guilty to the “Indictment.”
Defendant argues that his handwritten notation explaining the factual basis for the
plea did not include a description of the force or violence. He wrote: “On February 16,
1990, I robbed the United Savings Bank, Market-Lancaster Branch, 1565 Lancaster
Drive, NE, Salem, District of Oregon, whose deposits were insured by the FDIC.” But he
need not have repeated what he had already stated on the previous page and that was he
pleaded guilty to the charges set forth in the indictment, which expressly alleged that the
taking was “by force, violence, and intimidation.”
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As a result, defendant‟s case is quite analogous to Miles. He is right that only the
first paragraph of the federal statute sets forth the same elements as a California robbery
as a serious felony, and the mere conviction of a title 18 United States Code
section 2113(a) offense does not alone establish that the conviction was for a serious
felony under California law. But he is wrong that his legal analysis ends our inquiry. As
in Miles, otherwise admissible evidence from the entire record confirms that defendant
was indeed convicted of taking the money from the employees by force, a crime that is a
serious felony under California law.
Oregon Offenses
Defendant contends there is insufficient evidence of four out-of-state convictions
because the prosecutor failed to produce certified copies of the documents, a claim he
raises for the first time on appeal. He cites two cases for the proposition that “[o]nly
certified records of prior convictions are sufficient to prove a prior conviction.”
(People v. Skiles (2011) 51 Cal. 4th 1178, 1186 (Skiles); People v. Duran (2002)
97 Cal. App. 4th 1448, 1460-1462 (Duran).) Neither case stands for the principle of law
recited by defendant.
In Skiles, the issue was whether a faxed copy of a certified copy was admissible to
prove a foreign conviction. (Skiles, supra, 51 Cal.4th at p. 1182.) The Supreme Court in
fact found the faxed copy in the case before it was admissible under the secondary
evidence rule because there was an abundance of evidence in the record to corroborate its
authenticity. (Skiles, at pp. 1184-1185.) The case, if anything, suggests that
authenticated documents, not merely certified copies, may be sufficient to prove a prior
conviction.
In Duran, the Court of Appeal concluded that Evidence Code section 452.5,
subdivision (b) creates a hearsay exception allowing admission of qualifying court
records to prove not only the fact of conviction, but also that the offense reflected in the
record occurred. (Duran, supra, 97 Cal.App.4th at p. 1460.) Interestingly, in Duran, as
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here, “the prosecutor represented, and the parties did not challenge, that the minute order
was properly certified.” (Id. at p. 1462.) There was no evidence offered to suggest that
the minute order did not reliably reflect the judgment imposed by the trial court.
Although the court held that the certified minute order was admissible as an official
record to prove the relevant conviction, it did not state or imply that certified copies are
the only means sufficient to prove a prior conviction.
The prosecution in this case did represent to the court at trial that the copies of the
convictions were certified. Defendant did not object to the admission of the copies or in
any way alert the court that, contrary to the prosecution‟s representations, the copies were
not certified. On appeal, the Attorney General does not argue that the copies were, in
fact, certified but contends that defendant forfeited his right to object to any lack of
certification. Defendant insists that a challenge to the sufficiency of the evidence is never
forfeited or waived by failing to raise the deficiency at trial. (People v. Trujillo (2010)
181 Cal. App. 4th 1344, 1350, fn. 3; People v. Rodriguez (2004) 122 Cal. App. 4th 121,
129.)
We agree with defendant to the extent that he has not forfeited his insufficiency
claim, and we will review the entire record in the light most favorable to the prosecution
to determine whether there is substantial evidence to support the court‟s findings that the
four prior Oregon convictions constitute serious felonies under California law. But we
agree with the Attorney General that defendant‟s specific objection to the lack of
certification is not a mere challenge to the sufficiency of the evidence but a challenge to
whether the prior convictions should have been admitted. “The objection requirement is
necessary in criminal cases because a „contrary rule would deprive the People of the
opportunity to cure the defect at trial and would “permit the defendant to gamble on an
acquittal at his trial secure in the knowledge that a conviction would be reversed on
appeal.” ‟ [Citation.] „The reason for the requirement is manifest: a specifically
grounded objection to a defined body of evidence serves to prevent error. It allows the
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trial judge to consider excluding the evidence or limiting its admission to avoid possible
prejudice. It also allows the proponent of the evidence to lay additional foundation,
modify the offer of proof, or take other steps designed to minimize the prospect of
reversal.‟ [Citation.]” (People v. Partida (2005) 37 Cal. 4th 428, 434.) Because
defendant failed to object to the prosecutor‟s representation that the copies were certified,
the trial court was not alerted to a need to consider excluding the evidence to minimize
the prospect of reversal, and the prosecutor did not have the opportunity to cure any
problems with the certification. Thus, defendant has forfeited any objection to the
certification on appeal.
But certification is not the only issue. Defendant contends there is insufficient
evidence that the crime of robbery in Oregon constitutes a serious felony in California
because an Oregon robbery does not require an actual taking of property. (State v.
Hamilton (2010) 348 Or. 371 [233 P.3d 432]; State v. Skaggs (1979) 42 Or.App. 763, 765
[601 P.2d 862].) Thus, under Oregon law, there is no separate crime of attempted
robbery because an attempt is subsumed into the definition of robbery. But the
distinction does not advance defendant‟s argument. Even if, as he suggests, he was guilty
only of attempted robbery under California law, an attempted robbery in California is a
serious felony and can therefore be used as a strike. (Pen. Code, § 1192.7, subd. (c)(19),
(39).) Defendant‟s assertion to the contrary is mistaken.
The prosecution‟s exhibits included copies of the indictments for each of the four
Oregon priors. In each indictment, defendant allegedly was armed with a firearm or knife
while in the course of attempting to commit or committing theft from a person.
Defendant admitted in his guilty plea that he robbed the victims as alleged. As a result, a
reasonable inference can be drawn from the prosecution‟s evidence that each of the priors
constituted robbery in California. Under the deferential and limited scope of appellate
review of defendant‟s challenge to the sufficiency of the evidence, we conclude there was
sufficient evidence to support the trial court‟s findings that all four of defendant‟s prior
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convictions for first and second degree robberies in Oregon were violent and serious
felonies under California law.
The first amended information in this case was filed before trial and alleged four
prior convictions. The jury here convicted defendant of the 2011 robbery, defendant
waived his right to a jury trial on the priors, and the jury was discharged. But when
defendant appeared for his court trial on the priors, the court allowed the prosecution to
file a second amended information alleging a fifth prior conviction for second degree
robbery. Defendant reiterates the objection he raised at trial. The objection should have
been sustained as the Attorney General readily concedes.
A defendant has a statutory right to be tried on prior conviction allegations by the
same jury that decided the issue of guilt. (Pen. Code, § 1025, subd. (b).) “[I]n the
absence of a defendant‟s forfeiture or waiver, section 1025, subdivision (b) requires that
the same jury that decided the issue of a defendant‟s guilt „shall‟ also determine the truth
of alleged prior convictions. Because a jury cannot determine the truth of the prior
conviction allegations once it has been discharged [citation], it follows that the
information may not be amended to add prior conviction allegations after the jury has
been discharged.” (People v. Tindall (2000) 24 Cal. 4th 767, 782.) Thus, the prior
conviction for second degree robbery on July 31, 1980, is stricken.
DISPOSITION
The July 31, 1980, prior conviction is stricken and the judgment is affirmed in all
other respects.
RAYE , P. J.
We concur:
NICHOLSON , J.
HOCH , J.
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