The People v. Marquez CA4/2 ( 2013 )

Filed 8/28/13 P. v. Marquez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E055006
v. (Super.Ct.No. FSB903287)
JESUS PASQUEL MARQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Donna G. Garza,
Judge. Affirmed with directions.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
and Peter Quon, Jr., Seth M. Friedman, and Marissa A. Bejarano, Deputy Attorneys
General, for Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant was convicted of carjacking, robbery, assaulting a police officer, and
driving with disregard for safety while evading a police officer. The jury also found true
allegations that he used a knife and that a principal used a firearm in committing the
carjacking and robbery. The jury further found true gang enhancement allegations as to
each crime.
Efran Barajas was the victim of the carjacking and robbery. He testified for the
prosecution at defendant’s preliminary hearing. Shortly afterward, and unbeknownst to
the prosecution, he was deported to Mexico. Over defendant’s objection, the court
allowed the prosecution to introduce Barajas’s preliminary hearing testimony at trial
based on the finding that the witness was unavailable and that the prosecution had made
reasonable, good faith efforts to secure his appearance at trial.
On appeal, defendant contends the court violated his constitutional rights under the
confrontation clause of the Sixth Amendment in allowing Barajas’s preliminary hearing
testimony at trial. He also contends the evidence was insufficient to support the gang
enhancement findings, the court erred in failing to hold a Marsden1 hearing, the personal
use of a firearm enhancement should be stricken, and the punishment imposed for two of
the counts should be stayed pursuant to Penal Code section 654.2
1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2 All further statutory references are to the Penal Code unless otherwise indicated.
2
We agree with defendant (and the Attorney General) that the firearm enhancement
should be stricken and will modify the judgment accordingly. We reject defendant’s
other arguments and affirm the judgment as modified.
II. FACTUAL BACKGROUND
A. August 1, 2009: The Carjacking and Robbery3
On the evening of August 1, 2009, Barajas was sitting inside his 1992 Jeep
Cherokee in the parking lot of a drive-through dairy in San Bernardino. The Jeep had
Baja California, Mexico, license plates. Barajas was approached by defendant, who
claimed to know him. Barajas told defendant he did not know him and did not want to
talk to him. Defendant dropped the bicycle and pulled out a knife. Barajas described that
knife as “like a kitchen knife, like a steak knife.”
Barajas began to roll up his car window. Defendant and an accomplice stuck their
hands inside the car to prevent Barajas from closing the window. They tried to pull
Barajas out of the car. Barajas moved to the passenger side of the vehicle and exited out
the passenger side door. Defendant and his accomplice chased Barajas across the parking
lot. One of them pulled on Barajas’s back and threw him to the ground. Defendant and
his accomplice started hitting Barajas. They took Barajas’s keys from his hand, $500 in
cash, his cell phone, watch, and a gold chain from around his neck.
3 The facts regarding the carjacking and robbery were adduced primarily through
Barajas’s preliminary hearing testimony, which was introduced at trial over defendant’s
objection. Defendant challenges that ruling on appeal. We address that issue in part
III.A. below, and conclude that the court did not err in allowing the testimony into
evidence.
3
During the attack, defendant’s accomplice lifted his shirt to show a gun in his
waistband and said, “[d]o you want me to blow you up right now?” or “I will blast you up
right now.” Defendant then ran away while the accomplice got inside Barajas’s car and
drove away. Barajas then walked back to the dairy. From there, someone drove him
home. Barajas called the police and described the assailants.
San Bernardino Police Officer Patrick Woolweaver responded to the call. Barajas
explained to Officer Woolweaver what had happened and gave him a physical description
of the men. Barajas said he believed defendant had dropped the steak knife in the
parking lot of the dairy during the assault.
Officer Woolweaver went to the dairy and found a silver knife with a black handle
in the parking lot. He requested that a forensic specialist come to the scene to properly
process the knife. Photographs of the knife were taken and it was dusted for fingerprints;
however, no fingerprints were recovered from the knife. Other officers were notified to
be on the lookout for Barajas’s Jeep.
B. August 7, 2009: Defendant’s Attempt to Evade a Police Officer and Assault Upon the
Officer
In the early morning of August 7, 2009—six days after the carjacking incident—
San Bernardino Police Officer Chris Emon was sitting in his patrol car at an intersection
when he observed a white Jeep Cherokee pass him. Officer Emon noticed the Jeep bore
Baja California, Mexico license plates, which matched the description of a robbery and
carjacking alert from a few days prior. Officer Emon began to follow the Jeep and turned
4
on his rooftop police lights. The Jeep then ran a stop sign and picked up speed from
approximately 5 to 10 miles per hour to approximately 50 to 60 miles per hour. Officer
Emon activated his police siren, and the Jeep increased its speed again—to approximately
80 to 90 miles per hour.
The driver of the Jeep then led Officer Emon on a high-speed pursuit through a
residential area with speeds reaching 100 miles per hour. The chase ended in an
apartment complex driveway, approximately two to three miles from where it began.
Officer Emon stopped his car approximately 10 feet behind the Jeep. As he got out of his
patrol car, the Jeep reversed and struck the front of the car.
As Officer Emon approached the Jeep, two occupants of the Jeep ran away. (A
third, a female, got out of the Jeep and stood nearby.) Officer Emon pursued the driver of
the Jeep on foot. At trial, he identified defendant as the driver.
During the chase, Officer Emon fell and injured his face. When he caught up with
defendant, a struggle ensued. Defendant grabbed Officer Emon’s leg and tried to pull
him to the ground. As other officers arrived, defendant was subdued.
Officer Woolweaver (the officer who had investigated the carjacking and robbery)
learned that defendant had been apprehended. He contacted Barajas and brought him to
where the Jeep and defendant were located. Barajas and Officer Woolweaver remained
in the patrol car. Officer Woolweaver shined his lights on defendant. Defendant was
standing approximately 15 feet away from the patrol car. Barajas indicated that he
5
recognized defendant and said: “Yeah, that’s him. That’s the subject with the knife that
stole my car.”
C. Evidence Related to the Gang Enhancement
In 2009, San Bernardino County Probation Officer Nathan Scarano was working
on a gang task force. In January 2009, Scarano interviewed defendant. Defendant
admitted to Scarano that he was from the “Westside Verdugo” gang. His gang moniker
was “Shorty.” Defendant was wearing blue clothing at the time of his arrest, which is
typically associated with Westside Verdugo gang attire. Defendant also had multiple
tattoos dedicated to the gang, including a “Verdugo I.E.” tattoo across his chest and a
“Verdugo” tattoo on his right leg. Scarano filled out a “gang card” regarding defendant
based on his interview.4
San Bernardino Police Officer Steven Aranda testified as the prosecution’s gang
expert. According to Officer Aranda, Westside Verdugo is a criminal street gang whose
primary activities include homicide, robbery, carjacking, assault with a firearm, sales of
narcotics, and vehicle thefts. He opined that defendant is a member of the Westside
Verdugo gang.
Officer Aranda explained the concept of “putting in work” for a gang. Gang
members put in work for the gang by “committing crimes for the benefit of the gang, and
4 A “gang card” is used by police to ascertain whether or not a person in custody
is affiliated with a particular street gang. Scarano testified that the gang card contains
“statements made by the individual [gang member], the time and place in which it
occurred, [and] criteria that is met to indicate that the subject is a gang member.”
6
for [their] personal benefit to build [their] reputation and show [their] loyalty and
dedication to that gang.” He explained that Westside Verdugo gang members would be
motivated to commit a carjacking to, among other reasons, show other gang members
they are willing to commit violent crimes and represent the gang, use the stolen vehicles
to commit other crimes, and instill fear of the gang in the community. Similar reasons
motivate the gang members’ commission of robbery. He said that weapons are used
during crimes to, among other reasons, instill fear in the community and among citizens
who witness the crime. He further stated that by fleeing from pursuing police officers
and assaulting police officers, Westside Verdugo gang members increase their status
within the gang and show they have no fear of law enforcement—that no one will “get in
their way of doing what they want to do.”
In response to hypothetical questions that mirrored the facts in this case, Officer
Aranda testified that the hypothetical crimes were committed with the intent to promote,
benefit, or further Westside Verdugo. He explained that the carjacking and robbery show
that the gang members who committed those crimes have the “mentality . . . to be violent
and to commit crimes that would ultimately benefit them individually by obtaining the
stolen property and obtaining the vehicle that could be used to assist the gang or gang
members in additional crimes.” Assault of police officers and evasion of police officers
show that gang members are “willing to do whatever [they] can to get away from police”
and that the conduct “enhances [their] reputation with the gang.” This benefits the gang
by showing how members are willing “to do whatever they can [without] fear of the
7
consequences from fleeing from police or committing crimes.” Committing the crimes
described in the hypothetical questions would also enhance the gang members’ status
within the gang. Finally, word of mouth in the community regarding the crimes also
helps instill fear and intimidation among the citizenry, which benefits the gang by
inhibiting cooperation with the police.
III. ANALYSIS
A. The Trial Court’s Finding That the Prosecution Made Reasonable, Good Faith
Efforts to Locate and Present Barajas at Trial
Defendant contends the trial court erred in allowing the prosecution to use
Barajas’s preliminary hearing testimony at trial and thereby violated his constitutional
right of confrontation. We disagree.
1. Background Legal Principles and Standard of Review
The confrontation clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him . . . .” (U.S. Const., 6th Amend.; see also Cal. Const., art. I, § 15.) The
United States Supreme Court “has emphasized that the Confrontation Clause reflects a
preference for face-to-face confrontation at trial,” and that “‘a primary interest secured by
[the provision] is the right of cross-examination.’” (Ohio v. Roberts (1980) 448 U.S. 56,
63, fn. omitted, abrogated on other grounds in Crawford v. Washington (2004) 541 U.S.
36, 60-68.)
8
“The right of confrontation ‘seeks “to ensure that the defendant is able to conduct
a ‘personal examination and cross-examination of the witness, in which [the defendant]
has an opportunity, not only of testing the recollection and sifting the conscience of the
witness, but of compelling him to stand face to face with the jury in order that they may
look at him, and judge by his demeanor upon the stand and the manner in which he gives
his testimony whether he is worthy of belief.’” [Citations.]’” (People v. Herrera (2010)
49 Cal.4th 613, 620-621; Mattox v. United States (1895) 156 U.S. 237, 242-243.)
Moreover, the United States Supreme Court has emphasized that “one of the important
objects of the right of confrontation was to guarantee that the fact finder had an adequate
opportunity to assess the credibility of witnesses.” (Berger v. California (1969) 393 U.S.
314, 315.)
An accused’s right of confrontation is not absolute. (Chambers v. Mississippi
(1973) 410 U.S. 284, 295.) Traditionally, an exception to the confrontation right has
been recognized “where a witness is unavailable and has given testimony at previous
judicial proceedings against the same defendant [and] which was subject to cross-
examination . . . .” (Barber v. Page (1968) 390 U.S. 719, 722.) Therefore, in order for
the exception to be applicable, the (1) witness must be unavailable, (2) must have given
testimony against the same defendant, and (3) the defendant had the opportunity to cross-
examine the witness. If these criteria are met, the unavailable witness’s prior testimony
may be admitted at trial without violating a defendant’s confrontation right. (People v.
Seijas (2005) 36 Cal.4th 291, 303.)
9
This traditional exception is reflected in Evidence Code section 1291, which
provides that “former testimony,” such as preliminary hearing testimony, is not made
inadmissible by the hearsay rule if “the declarant is unavailable as a witness” and “[t]he
party against whom the former testimony is offered was a party to the action or
proceeding in which the testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which he has at the
hearing.” (Evid. Code, § 1291, subd. (a)(2).) Thus, when the requirements of this statue
are met, the admission of former testimony in evidence does not violate a defendant’s
constitutional right of confrontation. (People v. Friend (2009) 47 Cal.4th 1, 67.)
Here, only the element of unavailability is in question, as there is no dispute that
defendant was a party to the action when Barajas gave his preliminary hearing testimony
and defendant had the right and opportunity to cross-examine Barajas at that time.
Accordingly, the question is whether Barajas was, in fact, unavailable for purposes of the
exception to the confrontation clause.
A witness who is absent from trial is not “unavailable” in the constitutional sense
unless the prosecution has made a “good faith effort” to obtain the witness’s presence at
trial. (Barber v. Page, supra, 390 U.S. at pp. 724-725.) Defendant contends the
prosecution did not put forth a good faith effort to obtain Barajas’s testimony at trial. He
argues that the prosecution’s efforts were not reasonably diligent and, therefore, the trial
court erred in finding Barajas unavailable. In particular, defendant argues that the
prosecution had numerous avenues by which they could have procured Barajas’s
10
testimony at trial and that the prosecution failed to meaningfully explore any of these
avenues.
The United States Supreme Court has described the good faith requirement this
way: “The law does not require the doing of a futile act. Thus, if no possibility of
procuring the witness exists (as, for example, the witness’ intervening death), ‘good faith’
demands nothing of the prosecution. But if there is a possibility, albeit remote, that
affirmative measures might produce the declarant, the obligation of good faith may
demand their effectuation. ‘The lengths to which the prosecution must go to produce a
witness . . . is a question of reasonableness.’ [Citation.] The ultimate question is whether
the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and
present that witness.” (Ohio v. Roberts, supra, 448 U.S. at p. 74.)
The term “[r]easonable diligence . . . ‘“connotes persevering application, untiring
efforts in good earnest, efforts of a substantial character.”’ [Citation.]” (People v.
Cogswell (2010) 48 Cal.4th 467, 477.) What constitutes reasonable diligence depends on
the facts of each case. (People v. Sanders (1995) 11 Cal.4th 475, 523; People v. Martinez
(2007) 154 Cal.App.4th 314, 328.) Relevant considerations “‘include the timeliness of
the search, the importance of the proffered testimony, and whether leads of the witness’s
possible location were competently explored.’ [Citation.]” (People v. Herrera. supra, 49
Cal.4th at p. 622.) When, as here, the absent witness has been deported to another
country, courts have also considered whether a treaty exists between the United States
and the country to which the witness was deported that provides for the foreign country’s
11
aid in compelling the appearance of the witness at trial in the United States (see, e.g., id.
at p. 629; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1438-1443 (Sandoval)),5 the
prosecution’s willingness to assist the witness in returning voluntarily (see Sandoval,
supra, at pp. 1441-1442), the prosecution’s failure to use judicial remedies to detain the
witness in this country prior to deportation (People v. Roldan (2012) 205 Cal.App.4th
969, 981-982), and the prosecution’s contacts with appropriate federal governmental
agencies (People v. Martinez, supra, at p. 329).
The prosecution has the burden of proving reasonable diligence and a good faith
effort to procure the witness. (Ohio v. Roberts, supra, 448 U.S. at p. 74.) We review the
trial court’s resolution of disputed factual issues under the deferential substantial
evidence standard and independently review whether the facts demonstrate prosecutorial
good faith and due diligence. (People v. Herrera, supra, 49 Cal.4th at p. 628.)
5 As the Sandoval court discussed, the United States has such a treaty with
Mexico. (See Treaty on Cooperation Between the United States of America and the
United Mexican States for Mutual Legal Assistance, Dec. 9, 1987, Sen. Treaty Doc. No.
100-13, eff. May 3, 1991, 27 I.L.M. 443 (the Treaty); Sandoval, supra, 87 Cal.App.4th at
p. 1439.) Defendant requested that we take judicial notice of the Treaty. The Attorney
General opposes the request. Under Evidence Code section 459, subdivision (a), we
“shall take judicial notice of . . . matter that the trial court was required to notice under
Section 451 . . . .” Evidence Code section 451, subdivision (a) mandates that the trial
court take judicial notice of the “public statutory law of . . . the United States . . . .” The
Treaty is such a law. (See, e.g., Foster v. Neilson (1829) 27 U.S. 253, 314 [a treaty is
“the law of the land” and “equivalent to an act of the legislature”].) Accordingly, we
grant the request for judicial notice.
12
2. Summary of Facts Pertaining to the Prosecution’s Diligence in Locating
Barajas
Barajas testified at defendant’s preliminary hearing on April 29, 2010. Over the
next six days, he was taken into the custody of the San Bernardino County Sheriff,
released to the custody of the United States Department of Homeland Security, to whom
he indicated his desire to return to Mexico, and deported to Mexico.
On May 6, 2010, the day after Barajas was deported, defendant was arraigned.
The trial date was initially set for June 14, 2010, and subsequently changed to June 30,
2010.
On May 12, 2010, prosecution investigator Morey Weiss attempted to serve
Barajas with a trial subpoena in this case. Weiss went to a location in San Bernardino
believed to be Barajas’s residence. When he arrived at the residence, Weiss spoke with
Manuel Gonzales, an occupant of the home. Gonzales informed Weiss that Barajas had
been deported approximately one week prior. Weiss returned to his office and confirmed
that Barajas had been deported or released to a government agency.
The next day, Weiss returned to Barajas’s last known residence to see if Gonzales
had any information about others who may know Barajas and how to contact him.
Because Weiss did not speak Spanish, he brought with him a Spanish-speaking
investigation technician from his office, Michelle Martinez.
13
When Weiss arrived at the residence, he again spoke with Gonzales, who told
Weiss that he knew one of Barajas’s cousins, Salvador Alvarez. Gonzales contacted
Alvarez, and Alvarez came to the residence.
Martinez (Weiss’s assistant) spoke with Alvarez. Alvarez then telephoned
Barajas. Alvarez and Barajas spoke in Spanish, which Weiss did not understand.
Alvarez handed the telephone to Martinez, who then spoke to Barajas. Weiss and
Martinez then spoke. However, because the court sustained defendant’s hearsay
objections, the contents of that conversation were not admitted into evidence.
Weiss testified that, upon returning to his office, he “made a phone call to the
[S]tate [D]epartment from a phone number [he] got from a web page.” He called the
number, but because it was “just a general information number,” Weiss could “not speak
to anyone.” Weiss used the Internet to find a telephone number for immigration services
in Long Beach, California. Weiss spoke to someone and “explained that [he] was
attempting to get information regarding an individual who reportedly was deported from
the United States.” He was told that, in order to obtain such information, he would need
to have Barajas’s “alien number,” which Weiss did not have. He was referred to what
Weiss described as the deportation and removal office for immigration services (DRO).6
Weiss called the DRO and was again told that he needed to have Barajas’s alien
number in order to receive any assistance.
6 This is probably a reference to the enforcement and removal operations of the
Immigration and Customs Enforcement arm of the United States Department of
Homeland Security.
14
Weiss then called the West Valley Detention Center. This time, he was successful
in obtaining Barajas’s alien number.
When Weiss called the DRO again and told a DRO representative he had
Barajas’s alien number, the representative told Weiss that the DRO could not give him
any information over the telephone, and that he needed to send a letter. That day, May
13, 2010, Weiss sent a letter to the DRO which stated, in pertinent part: “Our office is
requesting certified verification that Mr. Barajas has been deported, and if it becomes
necessary, someone who can testify to Mr. Barajas’[s] deportation. Mr. Barajas testified
at the preliminary hearing for this case. By showing that Mr. Barajas is unavailable to
provide testimony at trial, we will be able to use his testimony from the previous court
hearing. [¶] Please contact me so that we can complete any process required, to either
produce Mr. Barajas as a witness, or prove his unavailability to the court.”
After he sent the letter to the DRO, Weiss began to make inquiries around his
office to see if anyone had dealt with a situation involving getting a witness from outside
the country. He checked with the child abduction unit of the district attorney’s office
because people in that unit have experience going outside of the United States to bring
abducted children back from other countries. He was referred to Val Jimenez, an
investigator with the California Department of Justice.
Weiss contacted Jimenez and, on May 24, 2010, received from him “some sample
letters” that needed to be completed so that Jimenez “could go through the appropriate
15
authorities to have [Barajas] returned to the United States if needed as a witness.” Weiss
forwarded the letters to the prosecutor.
Weiss also had conversations with his supervisors about how to transport and
house Barajas in the event they could secure his return for trial.
Finally, Weiss also learned of a “process called a U visa.” (Weiss was not asked
about, and did not explain, the nature of a U-visa.)7 Because the U-visa process required
the approval of a supervising district attorney, Weiss forwarded information about the U-
visa to his supervisors. Weiss stated that, as of the date of the due diligence hearing, he
was still unsure whether the U-visa procedure was a proper avenue to obtain Barajas’s
testimony.
As of June 29, 2010 (the date of the hearing to determine Barajas’s unavailability),
Weiss had not received a response to his May 13, 2010, letter to the DRO.
After listening to Weiss’s testimony, the trial court determined that the “district
attorney’s office used reasonable due diligen[ce] efforts in trying to obtain [Barajas’s]
testimony in this action,” and allowed the prosecutor to introduce the preliminary hearing
transcripts into evidence at trial.
7 A U-visa is typically used to provide temporary immigration benefits to aliens
who are victims of qualifying criminal activity, and to their qualifying family members,
as appropriate. (Catholic Charities CYO v. Chertoff (N.D. Cal. 2008) 622 F.Supp.2d
865, 871-872 affd. sub nom. Catholic Charities CYO v. Napolitano (9th Cir. 2010) 2010
U.S.App. Lexis 4020.)
16
3. Analysis
For the reasons that follow, we agree with the trial court that the prosecution was
reasonably diligent in attempting to produce Barajas at trial.
Weiss began his efforts to subpoena Barajas for trial only six days after
defendant’s arraignment. He attempted to serve a subpoena on Barajas on May 12, 2010,
indicating he was unaware of Barajas’s deportation until that time. Weiss then spoke
with Gonzales, who put him in touch with Alvarez (Barajas’s cousin), who contacted
Barajas by telephone. Martinez, Weiss’s assistant, then spoke with Barajas. Although
the record does not indicate what Barajas told Martinez, Weiss’s subsequent conduct
implies that Barajas was not willing or able to return to the United States at that time—at
least not without the permission of the United States government.
Weiss thereafter contacted a federal immigration agency and was referred to the
DRO. The DRO would not help him without Barajas’s alien number. Weiss obtained
that information from the West Valley Detention Center and sent a letter to the DRO as
that agency instructed. The DRO never responded to Weiss.
Weiss’s diligence is further reflected in his efforts to seek out others in the district
attorney’s office with experience getting witnesses from abroad, his following up on a
referral that led him to contact Jimenez at the California Department of Justice, and
conversations with his supervisors about transporting and housing Barajas in the event
they could secure Barajas’s return.
17
As the trial court noted, there were probably other steps that could have been
taken; “there’s always one more thing that could have been done.” Weiss could have, for
example, followed up with the DRO when his written inquiry went unanswered. The
question, however, is whether the prosecution’s efforts were reasonable and made in
good faith. Based on the evidence produced at the hearing, the prosecution’s efforts
satisfied this test.
Defendant suggests that the prosecution should have made efforts to keep Barajas
from being deported. We disagree. “The prosecution is not required ‘to keep “periodic
tabs” on every material witness in a criminal case . . . .’ [Citation.]” (People v. Wilson
(2005) 36 Cal.4th 309, 342.) Nor does the prosecution have an affirmative duty to verify
a witness’s immigration status or to ensure that such status does not change prior to trial.
(People v. Martinez, supra, 154 Cal.App.4th at p. 329.) Barajas’s apprehension and
deportation appears to have occurred within a period of three days and there is no
evidence that the prosecution knew or had any reason to know that Barajas was facing
deportation. Under the circumstances, the prosecution’s failure to learn of and stop
Barajas’s deportation does not reflect a lack of reasonable diligence.
Defendant points out that Weiss could have followed up with others regarding the
U-visa procedure. There is, however, nothing in the record to indicate that the U-visa
procedure applied to this case or, if it did, that that process would have or could have
secured Barajas’s presence at trial.
18
Defendant asserts that “the prosecution [was] aware of where Barajas was.” If
defendant is referring to the awareness that Barajas was in Mexico, that is probably true.
If defendant is referring to knowledge of a more precise location for Barajas, the record
does not indicate such knowledge. Nor does the record indicate that Weiss, Martinez, or
anyone in the district attorney’s office knew Barajas’s telephone number or other contact
information. Although Martinez spoke with Barajas by telephone, she did so only after
Alvarez (Barajas’s cousin) called Barajas and handed the telephone to her.
Defendant also suggests that Weiss should have personally gone to Mexico to get
Barajas. Barajas had been deported for being in the United States illegally. Even if
Weiss knew where Barajas was residing in Mexico, there is no basis for believing he
could have brought Barajas back into the United States without the federal government’s
consent.
Defendant points to the fact that Barajas submitted a written victim impact
statement in connection with defendant’s sentencing. The statement was submitted to the
court in October 2010, approximately four months after the hearing to determine his
unavailability and the beginning of trial. Although this indicates that the prosecution may
have been in contact with Barajas around the time the statement was submitted, it is not
evidence of such contact at the time of the hearing. Moreover, Barajas’s willingness and
ability to send a written statement from Mexico is not evidence of his willingness or
ability to physically return to the United States.
19
Defendant relies heavily on Sandoval, supra, 87 Cal.App.4th 1425. In Sandoval,
the witness (Zavala) was in police custody on drug charges when the defendant’s
preliminary hearing took place. (Id. at p. 1432.) In return for Zavala’s testimony, the
drug charges against him were dropped. (Ibid.) He was thereafter deported to Mexico.
(Ibid.) Prior to the defendant’s trial, the court held a hearing to determine if Zavala was
unavailable. At the hearing, a prosecution investigator testified that Zavala was in
Mexico, that he contacted Zavala by telephone, and that Zavala was willing to testify if
he could get a passport and visa to enter the United States legally. (Ibid.) Zavala said he
needed $100 to make the trip to an American consulate to apply for the visa. (Ibid.) The
prosecution decided not to assist Zavala and “did nothing more to secure his attendance at
the trial.” (Ibid.) In short, as the Court of Appeal stated: “[T]he prosecution threw up its
hands and asserted Zavala was unavailable simply because he was a foreign citizen
residing outside of the United States.” (Id. at p. 1443.) This alone, the court held, did not
constitute the reasonable, good faith effort required to establish unavailability for
purposes of the confrontation clause. (Id. at pp. 1428, 1443-1444.)
In contrast to the situation in Sandoval, the prosecution in the present case is not
asserting that Barajas was unavailable merely because he was a Mexican citizen in
Mexico. Nor did the prosecution simply “thr[o]w up its hands,” but rather, in the
relatively short time between the arraignment and the trial, attempted to serve a subpoena
on Barajas and locate his whereabouts in Mexico, contacted government agencies in an
effort to facilitate Barajas’s return to the United States, and communicated with Weiss’s
20
supervisors about obtaining transportation and housing for Barajas. Moreover, unlike the
situation in Sandoval, there is no evidence in the present case that the prosecution was
aware of Barajas’s location in Mexico, had his telephone number prior to trial, or that
Barajas had agreed to testify at trial. Sandoval is thus easily distinguishable.
Defendant also contends that “this case is very similar to” People v. Roldan,
supra, 205 Cal.App.4th 969. It is not. In Roldan, the witness, Barrera, was in the process
of being deported by the federal government at the time of the preliminary hearing. (Id.
at p. 976.) Barrera told an investigator for the prosecution that after he was deported he
would be willing to return to testify at trial. (Ibid.) However, after his deportation, the
investigator was unable to locate Barrera. (Id. at p. 977.) The trial court allowed the
prosecution to use Barrera’s preliminary hearing testimony at trial. (Id. at p. 978.) The
Court of Appeal reversed. The court’s analysis and conclusion was based largely upon
the fact that the prosecution knew of Barrera’s impending deportation. In light of that
information, the prosecution could have detained Barrera as a material witness under
section 1332, subpoenaed him for trial prior to his deportation, obtained his assurance he
would return, given him contact information to stay in touch with authorities in this
country, and provided him with information and resources to facilitate his reentry into the
United States. (People v. Roldan, supra, at pp. 981, 984.) At a minimum, the court
added, the prosecution should have notified defense counsel of Barrera’s impending
deportation so that defense counsel could take actions to make Barrera available at trial.
(Id. at p. 985.) Here, by contrast, there is no evidence whatsoever that the prosecution
21
was aware of Barajas’s deportation until after it happened. Roldan has no application to
our facts.
Finally, defendant refers us to the Treaty (see fn. 5), but states only that it “will be
useful and necessary to resolution of [defendant’s] direct appeal.” He offers no
explanation as to how the Treaty supports his argument. Indeed, it is unlikely the Treaty
would have been helpful in securing Barajas’s presence at trial. First, the Treaty does not
require the transfer to the United States of persons not in custody in Mexico; at most, the
Mexican government must “invite” Barajas to appear before an “appropriate authority” of
the United States and inform him of the extent to which his expenses would be paid.
(Treaty, art. 9.) Second, a request that the Mexican government make such an invitation
should include information about Barajas’s location. (Treaty, art. 4, § 3.) Unless and
until Barajas was found, the Treaty would appear to be ineffectual. As discussed above,
there is no evidence the prosecution was aware of Barajas’s whereabouts and, therefore,
no reason to pursue the procedures available under the Treaty.
We therefore conclude the court did not err in allowing the prosecution to
introduce Barajas’s preliminary hearing testimony at trial
B. Sufficiency of the Evidence to Support the Gang Enhancement Findings
As to each count of which defendant was convicted, the jury found true allegations
that the crime was committed for the benefit of, at the direction of, or in association with
a criminal street gang and with the specific intent to promote, further, or assist in any
22
criminal conduct by gang members. Defendant contends there was insufficient evidence
to support these findings. We disagree.
On review of the sufficiency of evidence to support a criminal conviction, the
court must determine “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319;
People v. Osband (1996) 13 Cal.4th 622, 690.) “‘“[T]he court must review the whole
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.”’” (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Osband,
supra, at p. 690.) The substantial evidence standard of review applies to sufficiency of
the evidence claims regarding section 186.22 gang enhancements. (People v. Augborne
(2002) 104 Cal.App.4th 362, 371; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
Section 186.22, subdivision (b)(1), provides for a sentence enhancement for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . .” The “Legislature included the
requirement that the crime to be enhanced be committed for the benefit of, at the
direction of, or in association with a criminal street gang to make it ‘clear that a criminal
23
offense is subject to increased punishment . . . only if the crime is “gang related.”’
[Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 60.)
The elements of the gang enhancement may be proven by expert testimony.
(People v. Williams (2009) 170 Cal.App.4th 587, 621 [Fourth Dist., Div. Two]; People v.
Martinez (2008) 158 Cal.App.4th 1324, 1332.) In particular, “‘[e]xpert opinion that
particular criminal conduct benefited a gang’ is not only permissible but can be sufficient
to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement.”
(People v. Vang (2011) 52 Cal.4th 1038, 1048, citing People v. Albillar, supra, 51
Cal.4th at p. 63.)
Here, there was evidence that defendant was a member of the Westside Verdugo
criminal street gang, whose primary activities included homicide, robbery, carjacking,
assault with a firearm, sales of narcotics, and vehicle thefts. Indeed, another Westside
Verdugo gang member had previously committed a carjacking at the same location where
Barajas was robbed and carjacked. Officer Aranda explained how the commission of
carjackings and robberies by Westside Verdugo gang members will allow the gang to use
the stolen vehicle and property for further criminal activity and will instill fear of the
gang in the community. The use of weapons during crimes increases such fear. He
further testified that a hypothetical carjacking and robbery that mirrored the facts in this
case would benefit the gang because the gang members who commit such crimes show
they have the “mentality . . . to be violent” and can use the stolen vehicle and property “to
24
assist the gang or gang members in additional crimes.” The revenue obtained from the
robbery could also “benefit the gang . . . .”
Based on such evidence, a reasonable jury could conclude that defendant—a
member of a gang that commits carjackings and robberies—committed the carjacking
and robbery of Barajas to obtain the vehicle and property for the gang’s use, as well as to
instill fear of the gang in the community. Such evidence is sufficient to support the jury’s
findings that defendant committed these crimes for the benefit of the gang and with the
specific intent to promote, further, or assist in criminal conduct by gang members.
There is also substantial evidence to support the gang enhancements regarding the
crimes of assaulting a police officer and evading a police officer with willful disregard
for the safety of others. Officer Aranda testified that a gang member’s assault and
evasion of a police officer enhances the gang member’s reputation by showing how he or
she is willing to do whatever it takes to get away from police. Word of mouth regarding
such actions in the community spreads fear among the citizenry of retaliation, which
benefits the gang by inhibiting cooperation with the police. Based on such evidence, the
jury could reasonably conclude that defendant committed the assault and evasion of the
police for the benefit of, and with the intent to benefit and promote criminal activity by
gang members.
Defendant belittles Officer Aranda’s testimony as “generic” and argues that “it
was just as likely that [defendant] committed . . . the robbery and carjacking for personal
reasons not intended to promote the gang.” Such arguments, however, are for the jury.
25
In reviewing the record to determine whether there is substantial evidence to support the
jury’s findings, we do not reweigh the evidence or reevaluate a witness’s credibility.
(People v. Livingston (2012) 53 Cal.4th 1145, 1170.) Nor can we reverse a jury’s finding
that is supported by substantial evidence merely because the evidence could also support
a contrary finding. (Ibid.) We therefore reject defendant’s arguments and affirm the true
findings on the gang enhancements.
C. Court’s Failure to Hold a Marsden Hearing
At defendant’s sentencing hearing, the following colloquy occurred:
“THE COURT: . . . It is the Court’s intention to proceed with sentencing in this
matter, [u]nless [defendant] has anything to say to the Court?
“[DEFENSE COUNSEL]: Sir, [defendant], you may speak, if you wish to.
“THE DEFENDANT: I wanted to tell my attorney if there is any way I can find
for ineffective assistance of counsel.
“THE COURT: This is not the time. And the Court has already heard motions for
new trial and everything else. I think we are going to proceed at this point with
sentencing. And any issue with respect to any other issue, the Court is not going to hear
it at this time. We are already almost ten months post hearing.”
Defendant contends his statement triggered the court’s duty to hold a Marsden
hearing. We disagree.
An indigent criminal defendant is entitled to competent representation, and if the
defendant cannot afford to hire an attorney one must be appointed for him or her.
26
(Gideon v. Wainwright (1963) 372 U.S. 335, 343-345; Marsden, supra, 2 Cal.3d at p.
123; People v. Crandell (1988) 46 Cal.3d 833, 853.) Although there is generally no right
to more than one appointed attorney, a defendant may request that his or her appointed
counsel be discharged and substitute counsel appointed. (Marsden, supra, at p. 123.)
When such a request or motion is based on alleged ineffectiveness of counsel, the trial
court has a duty to give the defendant an opportunity to explain the basis for the claim.
(Id. at p. 124.) However, this duty does not arise until “the defendant in some manner
moves to discharge his current counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn.
omitted.) Although a formal motion is not required, there must be “‘at least some clear
indication by [the] defendant,’ either personally or through his current counsel, that [the]
defendant ‘wants a substitute attorney.’ [Citation.]” (People v. Sanchez (2011) 53
Cal.4th 80, 89-90; see also People v. Martinez (2009) 47 Cal.4th 399, 418.)
In the present case, defendant did not assert that his counsel was ineffective or
indicate he wanted a substitute attorney. He said: “I wanted to tell my attorney if there is
any way I can find for ineffective assistance of counsel.” It appears defendant wanted to
“tell”—or perhaps ask or speak with—his attorney about the possibility that he can
“find”—or perhaps claim—ineffective assistance of counsel. He stated he wanted to
speak to “my attorney,” not another or different attorney. His comment does not suggest
he is unhappy with his attorney or that he actually has any reason for believing his
attorney was ineffective. Rather, he indicates his desire for his current attorney’s advice
as to whether the attorney knows if “there is any way” he can find (or claim) ineffective
27
assistance. Therefore, because defendant gave no indication he wished substitute
counsel, the trial court had no duty to conduct a Marsden inquiry.8
Defendant contends that this case “presents a scenario very similar to that
discussed in” People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart) and People v.
Smith (1993) 6 Cal.4th 684 (Smith). In Stewart, the defendant filed a motion for new trial
based on, among other grounds, the ineffective assistance of the defendant’s counsel.
(Stewart, supra, at p. 393.) At the hearing on the new trial motion, the defendant’s
attorney argued that the court should appoint a new attorney for the defendant. (Ibid.)
The court conducted an in camera hearing with the defendant and his counsel where the
defendant expressed his reasons why he believed his counsel was ineffective. (Id. at p.
394.) One reason was counsel’s failure to call two particular witnesses. (Ibid.) The trial
court denied the motion for new trial. (Ibid.) The Court of Appeal reversed, stating that
the “trial court did not inquire into the substance of the [two] witnesses’ expected
testimony, but instead denied the motion without endeavoring to learn whether the
testimony might have been material or even crucial and without appointing new counsel
to assist the court in this regard.” (Id. at p. 398.)
In Smith, the defendant accepted a plea offer. (Smith, supra, 6 Cal.4th at p. 687.)
On the date set for sentencing, he “filed a motion for substitution of counsel ‘due to
8 On appeal, defendant asserts that he made a “request to ‘find for ineffective
assistance of counsel.’” Defendant’s creative editing suggests he had requested that the
court find he had received ineffective assistance. Although defendant’s actual statement
is somewhat vague and ambiguous, defendant’s construction is not a reasonable
interpretation of the statement.
28
inadequate representation of counsel,’ citing [Marsden].” (Id. at p. 688.) After an in
camera hearing with the defendant and his attorney, the court denied the motion. (Id. at
pp. 688-689.) The Supreme Court held there was no error: “The court fully allowed
[the] defendant to state his complaints, then carefully inquired into them.” (Id. at p. 696.)
In both Smith and Stewart, there was no question that the defendants indicated a
desire for substitute counsel and thereby triggered the duty to hold a Marsden hearing. In
Smith, the defendant filed a written motion for substitution of counsel citing Marsden.
(Smith, supra, 6 Cal.4th at p. 688.) In Stewart, the defendant filed a motion for new trial
based on ineffective assistance of his counsel and defense counsel argued for
appointment of new counsel. (Stewart, supra, 171 Cal.App.3d at p. 393.) In both cases,
an in camera Marsden hearing was held. In Smith, the court’s inquiry was sufficient; in
Stewart, it was not. Neither case is apposite here because, as set forth above, defendant
did not indicate that he wanted substitute counsel. Therefore, unlike the situations in
Smith and Stewart, the duty to hold a Marsden hearing never arose.
D. Section 12022.53 Enhancement
As to count 1, carjacking, the court sentenced defendant to a term of 15 years to
life based on the jury’s gang enhancement finding under section 186.22, subdivision
(b)(4)(B). The court added 10 years to that sentence based on section 12022.53,
subdivision (b), and the jury’s finding that a principal personally used a firearm in
committing the carjacking. Defendant contends the court should not have imposed the
10-year enhancement and that it must be stricken. The Attorney General agrees.
29
Section 186.22, subdivision (b)(4), provides, in part: “Any person who is
convicted of a felony enumerated in this paragraph committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members, shall, upon
conviction of that felony, be sentenced to an indeterminate term of life imprisonment
with a minimum term of the indeterminate sentence calculated as the greater of: [¶] . . .
[¶] (B) Imprisonment in the state prison for 15 years, if the felony is . . . carjacking, as
defined in Section 215 . . . .”
Section 12022.53, subdivision (b), provides, in part: “Notwithstanding any other
provision of law, any person who, in the commission of a felony specified in subdivision
(a), personally uses a firearm, shall be punished by an additional and consecutive term of
imprisonment in the state prison for 10 years.” Subdivision (e) of that section provides
that the enhancement applies to any person who is a principal in the commission of an
offense if the person violated section 186.22, subdivision (b) and any principal in the
offense personally used a firearm. However, an “enhancement for participation in a
criminal street gang . . . shall not be imposed on a person in addition to an enhancement
imposed pursuant to this subdivision, unless the person personally used or personally
discharged a firearm in the commission of the offense.” (§ 12022.53, subd. (e)(2), italics
added.) Finally, section 12022.53, subdivision (j), provides, in part: “When an
enhancement specified in this section has been admitted or found to be true, the court
shall impose punishment for that enhancement pursuant to this section rather than
30
imposing punishment authorized under any other provision of law, unless another
enhancement provides for a greater penalty or a longer term of imprisonment.”
In People v. Brookfield (2009) 47 Cal.4th 583, our state Supreme Court considered
the interplay between the gang enhancement (§ 186.22) and the enhancement for personal
use of a firearm (§ 12022.53). The court explained that a defendant who commits a gang-
related offense specified in section 12022.53 in which a principal, but not the defendant,
personally used or discharged a firearm is “subject to additional punishment under either
section 12022.53 or the gang-related sentence increases under section 186.22, but not
both.” (People v. Brookfield, supra, at pp. 593-594.) “Either,” however, does not mean
the court has discretion to impose one enhancement or the other: the trial court must
impose the greater penalty (i.e., the life term under § 186.22, subd. (b)(4)), rather than the
lesser, 10-year sentence under section 12022.53. (People v. Brookfield, supra, at p. 596.)
When the court errs by imposing both penalties, the proper remedy is to strike the 10-year
sentence enhancement under section 12022.53. (People v. Brookfield, supra, at p. 597.)
As both sides agree, Brookfield is controlling. Here, defendant was sentenced to a
term of 15 years to life based upon the carjacking and the gang enhancement pursuant to
section 186.22, subdivision (b)(4)(B). He used a knife (not a gun) in the carjacking; his
accomplice used a gun. Under Brookfield, defendant cannot be sentenced under both
section 186.22, subdivision (b)(4)(B) and section 12022.53, subdivision (b). The court’s
imposition of both sentences in this case is error. The 10-year enhancement under
section 12022.53, subdivision (b) must be stricken.
31
E. Section 654 Issues
In pronouncing sentence, the court did not apply section 654 to stay the sentence
on any count. Defendant contends this was error and the punishments for the convictions
for robbery (count 2) and evading an officer (count 4) should have been stayed. He
argues that the robbery was incidental to the carjacking (for which he was punished under
count 1) and his conduct in assaulting and evading the police officer under counts 3 and 4
were part of an indivisible course of conduct. Because substantial evidence supports the
court’s implied findings that defendant harbored separate intents and objectives in
committing his crimes, we find no error.
1. Background Principles
Section 654, subdivision (a), provides, in part: “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.” The statute
precludes multiple punishment when a single act or an indivisible course of conduct
violates two or more criminal statutes. (People v. Hester (2000) 22 Cal.4th 290, 294;
People v. Deloza (1998) 18 Cal.4th 585, 591.)
Whether multiple crimes were committed as part of an indivisible course of
conduct depends upon the defendant’s intent and objective. (People v. Harrison (1989)
48 Cal.3d 321, 335; In re Adams (1975) 14 Cal.3d 629, 634.) “‘If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
32
not for more than one.’ [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
“On the other hand, if the evidence discloses that a defendant entertained ‘multiple
criminal objectives which were independent of and not merely incidental to each other,
he may be punished for independent violations committed in pursuit of each objective
even though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ [Citations.]” (In re Adams, supra, at p. 634.)
The defendant’s intent and objective are factual questions for the trial court.
(People v. Coleman (1989) 48 Cal.3d 112, 162.) The court’s finding, whether express or
implied, will be upheld on appeal if supported by substantial evidence. (People v.
Osband, supra, 13 Cal.4th at pp. 730-731; People v. Powell (2011) 194 Cal.App.4th
1268, 1296.) We review the trial court’s determination in the light most favorable to the
defendant, and we presume the existence of every fact the trial court could have
reasonably deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139,
1143.)
2. Failure to Stay Punishment for Robbery (Count 2)
There is substantial evidence to support the court’s implied finding that defendant
harbored a separate intent and objective with respect to the carjacking and robbery.
While Barajas was sitting in his Jeep, defendant and an accomplice approached him.
When defendant pulled out a knife, Barajas attempted to close his car window. The
assailants reached inside and tried to pull Barajas out of the car. There was no evidence
that either assailant demanded any property from Barajas. Barajas then got out on the
33
passenger side, taking his keys with him. Defendant and the accomplice ran after him,
caught him, and hit him. They then took his car keys, money, cell phone, watch, and a
chain from around his neck. The accomplice then drove away in Barajas’s Jeep.
The fact that defendant and his accomplice attempted to pull Barajas out of his
Jeep without demanding any other property indicates an intent and objective to carjack
the Jeep. The trial court could have reasonably concluded that if they had been
successful in pulling Barajas out of the Jeep they (or at least defendant’s accomplice)
would have immediately fled in the Jeep without taking any other property from Barajas.
Although defendant and his accomplice subsequently took Barajas’s money and other
property, the court could reasonably have found that defendant did not form the intent to
do so until after he chased after and caught up to Barajas. Therefore, viewing the
evidence and the reasonable inferences deducible therefrom in a light favorable to the
court’s determination, the evidence is sufficient to support the finding that defendant
harbored separate intents and objectives for purposes of section 654.
Defendant relies on People v. Dominguez (1995) 38 Cal.App.4th 410. In that case,
the defendant entered the victim’s van, placed a “cold and metallic object against his
neck,” and said, “‘“Give me everything you have. . . .”’” (Id. at p. 414.) The victim gave
the defendant two rings and a chain, then ran away. (Id. at pp. 414-415.) The van was
recovered some distance away. (Id. at p. 415.) The defendant was convicted of
carjacking and robbery. (Id. at p. 414.) Significantly, the prosecutor conceded the
applicability of section 654 to the carjacking and robbery convictions and the trial court
34
expressly found that “section 654 required no punishment for the robbery in addition to
the carjacking.” (Id. at pp. 419-420.) The question for the Court of Appeal was whether
that finding was supported by substantial evidence. (Id. at p. 420.) The court concluded
that it was because the carjacking and the robbery in that case “constituted ‘the same
act.’” (Ibid.)
There are two problems with defendant’s reliance on Dominquez. First, even if
the facts in Dominguez were identical to the facts in the present case, the court was faced
with an issue different from the issue we face. The Dominquez court considered whether
there was substantial evidence to support the trial court’s finding that section 654
applied; we, however, must consider whether there is substantial evidence to support the
court’s finding that section 654 does not apply. The fact that evidence is sufficient to
support the court’s finding that section 654 applies does not preclude the possibility that
the evidence is also sufficient to support a contrary finding. (See, e.g., People v.
Robillard (1960) 55 Cal.2d 88, 93 [“the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment”], overruled on another point in People v. Morse
(1964) 60 Cal.2d 631, 637, fn. 2, 648-649.) The holding of Dominguez, therefore,
provides little guidance on the question we face.
Second, Dominguez is factually distinguishable. In that case, the defendant
entered the victim’s van and immediately told him to give the defendant everything he
had. The victim then “handed over his jewelry and van . . . .” (People v. Dominguez,
35
supra, 38 Cal.App.4th at p. 420.) The carjacking and the robbery of the jewelry thus
“constituted ‘the same act.’” (Ibid.) Here, by contrast, defendant first attempted to pull
Barajas from the Jeep without any demand to give him any property; he thereafter took
Barajas’s money and personal property only after chasing him down. Unlike the facts in
Dominguez, these facts reasonably support an inference that defendant did not form the
intent to rob Barajas of his money and other items until after he began to chase him.
Dominguez, therefore, does not help defendant in this case.
3. Failure to Stay Punishment for Evading Police Officer (Count 4)
Defendant contends the punishment for his assault on Officer Emon should be
stayed under section 654 because his driving without regard for safety while evading a
police officer was indivisible from his assault on the police officer. As with the issue
concerning the carjacking and robbery counts, our resolution of this issue depends upon
our deferential standard of review concerning the court’s implied factual finding.
Count 4—driving a motor vehicle with willful disregard for the safety of persons
or property while eluding a pursuing police officer—is supported by evidence that
defendant, driving Barajas’s Jeep in a high-speed chase through residential streets,
attempted to evade the pursuing officer. The chase ended when defendant drove into an
apartment complex. The assault charge was based upon evidence that, as Officer Emon
got out of his car to approach the Jeep in the apartment complex driveway, the Jeep
reversed and hit the officer’s patrol car.
36
Defendant argues that he used the Jeep to hit the patrol car with the same intent
and objective he harbored during his reckless driving—to avoid or delay his
apprehension. The Attorney General, on the other hand, contends that defendant’s
conduct had distinct intents and objectives: (1) defendant drove the Jeep as he did to
avoid apprehension; and (2) after coming to a stop in the apartment complex, defendant
drove the Jeep in reverse to assault Officer Emon. The Attorney General argues that if
defendant had maintained the initial objective to evade capture, he would have got out of
the Jeep and fled on foot as soon as he stopped the Jeep in the apartment complex
driveway. However, instead of immediately fleeing, defendant remained in the Jeep and
used it to hit the patrol car when Officer Emon was standing just outside the car’s door.
He may have done this not to avoid or delay apprehension but, as Officer Aranda opined,
to show that he had no fear of law enforcement and thereby increase his status within the
gang.
Both interpretations of the facts, we believe, can be reasonably inferred from the
evidence—the act of driving the Jeep in reverse and hitting Officer Emon’s patrol car
could reasonably have been viewed by the trial court as either furthering defendant’s
efforts to avoid apprehension or as an act designed to assault the officer and thereby
enhance defendant’s status in his gang. Because the court implicitly found defendant
harbored a separate intent and objective when he hit Officer Emon’s patrol car and we
must affirm the court’s determination if its finding is supported by substantial evidence,
we must affirm the court’s determination in this case.
37
IV. DISPOSITION
The judgment is modified such that the 10-year firearm enhancement under
section 12022.53, subdivision (b), is stricken from the sentence on count 1. As modified,
the judgment is affirmed. The trial court is directed to prepare a minute order and an
amended abstract of judgment reflecting the modification. The trial court is further
directed to forward a copy of the minute order reflecting the modification of the judgment
and the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
38