People v. Parker, B228076

CourtCalifornia Court of Appeals
Writing for the CourtBOREN
Docket NumberB228076
PartiesTHE PEOPLE, Plaintiff and Respondent, v. LAQUAN PARKER et al., Defendants and Appellants.
Decision Date17 January 2012

THE PEOPLE, Plaintiff and Respondent,
v.
LAQUAN PARKER et al., Defendants and Appellants.

B228076

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Filed: January 17, 2012


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. NA080373)

APPEALS from judgments of the Superior Court of Los Angeles County. James B. Pierce, Judge. Affirmed as modified.

Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant LaQuan Parker.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant Freddie Williams.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Brandon Boyd.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellants Freddie Williams, Brandon Boyd, and Laquan Parker of the following crimes: kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1); count 1);1 second degree robbery (§ 211; counts 2, 4-6, 8-11); and false imprisonment (§ 236; count 3). The jury found true the firearm enhancements alleged in counts 1 through 6 and 8 through 11 pursuant to sections 12022.53, subdivision (b) and 12022, subdivision (a). The jury convicted Williams and Parker of being an occupant with a concealed firearm in a vehicle (§ 12025, subd. (a)(3); count 12). The jury convicted Boyd of being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 13) and being a convicted person with a concealed weapon in a vehicle (§ 12025, subd. (a)(1); count 14). Boyd admitted a prior felony conviction for robbery within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court denied Boyd's motion to strike the prior felony conviction.

The trial court sentenced Parker and Williams to prison terms of life plus 51 years each. The trial court sentenced Boyd to a term of life plus 100 years.

Appellants raise the following issues on appeal: (1) the trial court erroneously failed to grant Parker's timely Faretta2 motion; (2) there was insufficient evidence in support of the verdict in count 8; (3) there was insufficient evidence of the asportation element of the kidnapping for robbery charge in count 1; (4) the convictions were based on insufficient identification evidence and the field showup was suggestive; (5) counsel was ineffective in failing to seek exclusion of the identification testimony; (6) the firearm-use enhancement on the false imprisonment count must be stricken; (7) there was insufficient evidence to support the true findings on the firearm-use enhancements; (8) the trial court's instructions regarding the firearm-use enhancements were inadequate, and counsel were ineffective in not seeking pinpoint instructions; (9) the prosecutor

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committed misconduct during closing argument; (10) Boyd's enhancement terms were erroneously doubled; (11) cumulative error deprived appellants of a fair trial; (12) the abstracts of judgment contain numerous errors.

FACTS

Prosecution Evidence3

1. Robbery at the Crow's Nest

At approximately 7:00 p.m. on November 29, 2008, Aaron Terbest was smoking a cigarette outside the alley entrance to the Crow's Nest bar in Long Beach. He had drunk only one beer and started a second. He saw three young Black men walking toward him, putting on "hoodies" and bandanas. Each of them was carrying a semiautomatic firearm. The area was lit with two motion sensor flood lights, and Terbest was able to see the faces of the men before they covered them. Terbest, who had been in the military and believed he was very familiar with firearms, testified that the guns were definitely semiautomatics, although he later conceded that one of them could have been a .380-caliber revolver.

One of the men approached Terbest, and "stuck [a gun] in [his] back," told him to turn around, and said, "Get inside the bar." Terbest walked into the dimly lit bar and kept on walking until the man told him to get on his knees. Terbest kept moving on his knees until he was approximately two-thirds of the way down the actual bar. One of the robbers then told him to get on his stomach. Terbest was afraid of the gun, and he obeyed the order. The man reached into Terbest's pocket and grabbed his wallet. Besides credit cards and identification, Terbest's wallet contained about $60 in cash. Terbest heard one of the robbers say, "You want me to shoot you, bitch." Terbest assumed the robber was talking to the female bartender, Anajimmay Lozano.

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Lozano testified that the robber put a gun to her head and told her to give him the money. She said, "Okay" and he "cocked the gun." She opened the cash register and he grabbed the money. The man was a Black male with a red and white striped hoodie. He wore black pants and black shoes. His face was covered, but Lozano saw his eyes. He was 17 to 20 years of age and was not tall—perhaps five feet four inches in height. He left through the back door of the bar.

Juan Noriega was at the Crow's Nest that night. Because he was very tired, he was dozing off as he sat at the bar. He opened his eyes and saw someone behind the bar with a small gun telling the bartender to give him the money. Noriega glanced to his right and saw another man taking the belongings of each person to his right. He realized he was next, so he walked quickly toward the alley door. Someone with a big gun grabbed his arm and shoved the gun into him. The robber took Noriega back to his seat. The man had a mask on, so Noriega did not get a good look at him. The gunman demanded Noriega's money, and Noriega put approximately $200 on the bar. When Noriega showed the robber that his wallet was empty, he was allowed to put the wallet back in his pants pocket. The robber patted down Noriega and told him to get on the ground. The robber was a Black male who looked young. Noriega thought the robber was wearing a red and white shirt. Noriega could only see the man's eyes. The other two robbers were also Black males with their faces covered. Noriega told the police he would not be able to identify the three robbers, and he did not go to a field showup.

Anthony Cepeda was watching the basketball game at the Crows Nest when he saw three men walk in and proceed to rob the bar. The robber behind the bar was holding a gun on the bartender. He was wearing a red and white striped sweater and some kind of mask or hood. The other two robbers were walking down the bar and taking things from the people seated there. At trial, Cepeda said he could not tell if the robbers were male or female, and he could not distinguish their race. One robber took Cepeda's cell phone, but his cash was not taken. Cepeda was shown a photograph of an article of clothing (Peo.

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exh. No. 9), and he stated it looked very similar to the sweater worn by the robber behind the bar. Cepeda went to a field showup but was not able to identify anyone.

As the robbery at the Crow's Nest progressed, Terbest heard a disturbance at the back of the bar near the alley door. He crawled toward the front door and then got up and ran outside to the street. As he ran toward a phone booth he knew, he saw the robbers running down the alley. Terbest did not reach the phone booth and walked back to the bar when he saw police heading in that direction. He gave a statement to police and told them that one of the robbers wore a red and white striped shirt, and another wore a black hoodie. The third wore a green hoodie. Terbest identified a photograph of a red and white striped hoodie as one that was worn by one of the robbers.

Officer Claudia Lopez of the Long Beach Police Department took Terbest's statement. Terbest was nervous and scared. He told Officer Lopez he felt the muzzle of the gun at his head as he crawled into the bar. He said the robbers were three Black males. One wore a red and white striped shirt and had his face covered with either a bandanna or a white T-shirt. The second robber wore a black hoodie, and the third a green hoodie. Terbest said he would be able to identify the men again. He said that their firearms were a semiautomatic Beretta, a .380-revolver, and a semiautomatic GLOCK. Terbest said he had drunk a few beers. He spoke clearly, however, and was able to give precise details of the incident.

After Terbest gave his statement to Officer Lopez, another officer told him to "hang tight here because we think we might have got the guys." Before he went out to the field showup, he was shown an admonition form and he signed it. He recalled that the gist of the admonition was that the person may or may not be the robber. He signed three forms. Terbest remembered that the officer who drove him to the showup said, "basically just, you know, if you can ID them, you can ID them. If you can't, you can't, you know." At...

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