People v. Higareda

• Decision Date: 05 May 1994
• Docket Number: No. B064544,B064544
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jorge Luis HIGAREDA, Defendant and Appellant.

Page 763

29 Cal.Rptr.2d 763

24 Cal.App.4th 1399

The PEOPLE, Plaintiff and Respondent, v. Jorge Luis HIGAREDA, Defendant and Appellant.

No. B064544.

Court of Appeal, Second District, Division 7, California.

May 5, 1994.

Rehearing Denied May 19, 1994.

Review Denied July 28, 1994.

[24 Cal.App.4th 1402] Carlo Andreani, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Karen Bissonnette, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

A jury convicted appellant of nine counts of robbery (PEN.CODE, § 211)¹, one count of discharging a firearm with gross negligence (§ 246.3), found true firearm allegations (§§ 12022.5, 12022, subd. (a)(1)), acquitted appellant of three counts of robbery, and could not reach a verdict on one robbery count (later dismissed). Appellant was sentenced to a 23-year, 8-month state prison term.

Appellant contends: (1) the trial court's special "force and fear" instruction constituted a directed verdict (2) the trial court erred in ruling his confession voluntary (3) the sentencing judge erred in refusing to order that appellant be "transferred to the custody of the Youth Authority." Welf. & Inst.Code, § 1731.5, subd. (c))(4) the sentence for discharging We find no prejudicial error and affirm the judgment.

a firearm with gross negligence (§ 246.3) violated section 654 and (5) the trial court erred in its reasonable doubt instruction.

FACTUAL BACKGROUND

Because proof of guilt was overwhelming and appellant makes no insufficiency of evidence claim, we synopsize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

During a two week period, July 25--August 7, 1990, appellant, who is Hispanic, and several Asian confederates ² committed a series of robberies in East Los Angeles. They selected Asian victims who resembled appellant's confederates. Identification and credit cards, along with valuables, were taken and then used by appellant's confederates.

On July 25, 1990, Benny Wang (victim, count XIII) and Hugo Lung (victim, count XIV) drove to a bowling alley in Arcadia. At about 11:20 p.m., while Mr. Lung was in the restroom, he noticed appellant who was 6'2"', wore jeans and striped tee shirt, and had pimples on his face.

When Mr. Wang was in the restroom he also noticed appellant.

Later, when Mr. Wang and Mr. Lung were paying the cashier they saw appellant with an Asian man (Jae-Hyun Moon) who resembled Mr. Lung.

As Mr. Wang and Mr. Lung were putting their bowling balls in their car appellant pointed a pistol at them and said "Drop the money or I will shoot you." Appellant took their money and Mr. Lung's wallet. Appellant got in a red Camaro driven by Jae-Hyun Moon and left. Two months later Mr. Lung learned $1,000 had been charged on his stolen credit card.

On August 4, 1990, about 11 p.m., Freddie Cheung (victim, count V) returned to his Monterey Park residence and was about to open his front door when appellant put a shotgun in his back and demanded his money. Mr. Cheung produced it, removed the money and gave it to appellant but held on to his wallet. Appellant again demanded the wallet and when Mr. Cheung did not relinquish it appellant tried to pull the shotgun trigger. Mr. Cheung dropped the wallet and appellant picked it up.

Mr. Cheung tried to run but an Asian man grabbed and held him. Appellant and the Asian man forced Mr. Cheung to open the door. They went inside, up to the second floor, got another occupant, Quoc Duong (victim, count VI), out of the shower and robbed him. Appellant and the Asian man then pulled out phones and left in a red sports car.

The next evening, August 5, 1990, Kathy Brook (victim, count VIII), her fiance Gordon Wong (victim, count VII), and Ms. Brook's student, Sumi Inoye, returned to their car in Monterey Park when an Asian man pointed a shotgun at Mr. Wong's back while appellant demanded Ms. Brook open the passenger window. Appellant and the Asian man took money, Mr. Wong's wallet, and Ms. Brook's car key and threatened to harm them if they tried to attract attention. Appellant and the Asian man then left in a red Camaro.

Ms. Brook had a spare car key and gave it to Mr. Wong who, with Ms. Brook and Ms. Inoye, followed the red Camaro. After about a mile, in a dark residential area, the red Camaro stopped and appellant and the Asian man got out. Appellant fired the shotgun in the direction of the victims' car (count IX).

Appellant and the Asian man re-entered the red Camaro and left.

Mr. Wong's stolen credit card was used to its $2,000 limit.

On August 7, 1990, about 1 a.m., Jonathan Chen (victim, count X), Lenny Chan (victim, count XI), Kuang Duong (victim, count XII), and three other friends were in the parking lot of a Monterey Park restaurant, where they had just eaten, when appellant approached, pointed a shotgun at them, and ordered them to drop their wallets. Momentarily An investigation of these and other robberies led the police to a residence at 18273 LaGuardia Street in Rowland Heights. On August 17, 1990, pursuant to a search warrant, police searched the residence and recovered property and identification belonging to the victims. Jae Moon and other confederates were arrested. The shotgun used in several of the robberies was recovered from a Thunderbird parked in the driveway of the residence. That Thunderbird had been purchased with a red Camaro trade-in.

                a red Camaro pulled up, two men got out and one of them, a short Asian man, picked up the wallets.  When a waitress opened the restaurant's back door one of the robbers said "Let's get out of here."   Appellant fired a shot in the air and the robbers fled in the red Camaro
                

Appellant, who was in custody at a juvenile detention center in Downey, was questioned on August 22, 1990. He confessed.

Appellant did not testify ³ and presented no defense.

DISCUSSION

1. Appellant contends the trial court's special "force and fear" instruction constituted a directed verdict.

The trial court (Superior Court Judge Gilbert C. Alston) defined robbery and its elements by reading CALJIC No. 9.40 ⁴ to the jury. Appellant does not fault this instruction.

But, at prosecution request and without defense objection, ⁵ the trial court also gave a "special" force or fear instruction. The trial court told the jury, "You are instructed that the aiming of a handgun or shotgun at a victim accompanied by a demand and receipt of money or personal property amounts to force and inferably fear, within the meaning of Penal Code 211, defining robbery as a felonious taking by force or fear."

Appellant contends that by this instruction the trial court determined the "force or fear" element of robbery and removed it from jury determination.

Although appellant's contention is overstated, we agree the trial court erred.

As our Supreme Court stated: "In many criminal cases, the prosecution's evidence will establish an element of the charged offense 'as a matter of law.' Similarly, in many instances, the accused will not seriously dispute a particular element of the offense.... However, neither of these sometime realities of trial practice justifies the giving of an instruction which takes an element from the jury and decides it adversely to the accused. Such an instruction confuses the roles of judge and jury." (People v. Figueroa (1986) 41 Cal.3d 714, 733, 224 Cal.Rptr. 719, 715 P.2d 680, internal citations omitted.)

Recently we cautioned that "in explaining or defining a term--which is an offense element--a trial court must exercise care. The ' "law/fact" distinction' (People v. Figueroa (1986) 41 Cal.3d 714, 733, 224 Cal.Rptr. 719, 715 P.2d 680) is elusive and easily breached." (People v. Snead (1993) 20 Cal.App.4th 1088, 24 Cal.Rptr.2d 922; see also People v. Daniels (1993) 18 Cal.App.4th 1046, 1051-1053, 22 Cal.Rptr.2d 877.)

The subject instruction was fact intrusive and error.

But, contrary to appellant's assertion, such error is not reversible per se. If harmless beyond a reasonable doubt, reversal is not required. (People v. Lee (1987) 43 Cal.3d 666, 674, 238 Cal.Rptr. 406, 738 P.2d 752.)

We are satisfied the error was harmless beyond a reasonable doubt.

Only identity, not force or fear, was in issue. The defense did not dispute or question that each victim was robbed. As defense counsel stated in argument: "The defense is not in any way disputing that the charges, the 13 counts of robbery occurred. Indeed they did. The factor, as you are aware, is to determine whether or not it was Mr. Higareda who committed and participated in the 13 armed robbery counts."

Moreover, the trial court left for jury determination whether a gun was aimed at a victim and whether a demand for money was made. The jury specifically found a firearm was used in each robbery and could not have reasonably doubted that such use amounted to "force or fear."

2. Appellant contends the trial court erred in ruling his confession voluntary.

Appellant contends his confession was involuntary, not because of a Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) violation, but because of a promise of leniency.

Before addressing the merits, we outline the procedural setting in order to consider the attorney general's waiver arguments.

When the trial began there were two defendants, appellant and Jae-Hyun Moon, each represented by separate counsel. After jury selection but before presentation of evidence the trial court conducted an omnibus hearing on defendant Moon's motions to exclude his statements and to suppress seized evidence and on appellant's motion to exclude his confession. The first witness was Detective Riojas. After he testified, the trial court denied defendant...