People v. Sanchez
| Decision Date | 02 February 2017 |
| Docket Number | B263472 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CARLOS OMAR SANCHEZ et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA425657)
APPEAL from a judgment of the Superior Court of Los Angeles County. C.H. Rehm, Jr., Judge. Affirmed, as modified.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Omar Sanchez.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant Jose Michael Juarez.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * * A jury found Jose Michael Juarez (Juarez) and Carlos Omar Sanchez (Sanchez) guilty of robbery and found Juarez guilty of evading police. On appeal, Juarez and Sanchez argue that (1) the trial court erred in substituting in an alternate juror in the midst of deliberations without instructing the jury to disregard its prior deliberations, (2) their trial counsel was constitutionally ineffective for not moving to suppress the robbery victim's identification on due process grounds, (3) there was insufficient evidence to support their convictions, (4) the trial court erred in imposing a $20 DNA assessment; and, as to Juarez, (5) the trial court miscalculated his custody credits. Defendants' first three arguments lack merit;1 the last two are well taken. Accordingly, we affirm their convictions but order that their sentences be modified.
FACTS AND PROCEDURAL BACKGROUND
In the early morning hours of May 30, 2014, Arnulfo Robles was riding his bicycle on a sidewalk in Whittier, California. A motorcycle drove up from behind and partially blocked Robles's path. There were two people on the motorcycle. The driver said, "Give me your phone." When Robles refused, the driver lifted up the back of his shirt to reveal a handgun, put his fingers around the gun's grip, and warned, "Don't make me." The passenger then added, "Hurry up and give him your phone." Robles obliged, handing the phone to the passenger. The motorcycle then sped away.
The entire encounter lasted about a minute. Although both the driver and passenger were wearing helmets, the helmets did not cover their eyes or noses, and they had stopped "almost directly" under a streetlight. Robles estimated that he looked at the driver's face for approximately 10 to 15 seconds and at the passenger's face for approximately four to six seconds. He could not tell what race they were. Robles said the driver was wearing a white shirt, blue jeans, and had on a black helmet. Robles said the passenger was wearing a gray sweater and had on a black helmet; Robles did not notice any writing on the sweater.
After the motorcycle pulled away, Robles continued to a friend's house and, once there, called 911. He reported the robbery and told the 911 operator that the passenger looked to be 12 or 13 years old based on his stature on the motorcycle. Robles also activated the "find my iPhone" function on his phone.
The police dispatcher broadcast a description of the motorcycle involved in the robbery, and a patrol car soon thereafter spotted a motorcycle matching that description. The officers in that car activated their lights and sirens. The motorcycle's driver then led them on a high-speed chase during which time the motorcycle jumped on and off various freeways, sped more than 90 miles per hour, ran red lights and signals, and crossed multiple lanes of traffic without looking. Both officers were able to see that the driver was wearing a light-colored shirt, blue jeans, and unlike Robles reported, a white helmet; they saw the passenger wearing a gray top and a black helmet.
Police helicopters assisted with the pursuit. The observer in the first helicopter saw the driver wearing a white shirt, blue pants, and like the officers but unlike Robles reported, a white helmet, and the passenger wearing "like a gray shirt" and a blackor dark-colored helmet. The observer in the second helicopter watched the motorcycle disappear under a freeway underpass and continue on with just the driver. Thereafter, the observer saw the driver leave the motorcycle and disappear into a neighborhood on foot.
Within five to ten minutes of losing sight of the motorcycle's occupants, police got word that Robles's iPhone was pinging from a house on South Concord Street. The house was just 1.4 miles from the location of the robbery. On a walkway right outside the house, police discovered an abandoned motorcycle and helmet. Less than 25 minutes later, several police officers entered the two-story house. The house was known to be inhabited by squatters, and police found seven men—all in their late teens, 20s, and 30s—inside. Juarez was hiding beneath insulation in the house's crawl-space attic, next to a bandana filled with live .38-caliber rounds. He was wearing black shorts and a black shirt. Sanchez was laying behind a couch on the first floor. He was wearing a gray sweatshirt with the letters "CALI" on the chest. Police found Robles's pinging iPhone in the second-floor bedroom; in the same bedroom, they recovered a pair of jeans and two shirts, one of which was a gray shirt with writing on the chest and left sleeve (in the same size as the gray sweatshirt with the letters "CALI"). Police also recovered a motorcycle helmet inside the house.
The police transported Robles in a police cruiser to a location two to three houses down from the house where they found his iPhone. They told Robles they had recovered his iPhone and brought him down "to look at who we caught . . . who we arrested." Police then marched Juarez, Sanchez, and at least two of the house's other occupants into the street, one at a time,for approximately 30 seconds. Police did not ask any of those men to put on a helmet or to sit atop a motorcycle. Robles identified Juarez as the driver and Sanchez as the passenger. Robles did not identify Sanchez based on his face, but rather because he "recognized" "his body, his buil[d]" and recognized the gray shirt. Sanchez is five feet four inches tall. After Robles made his identifications, the police said, "Good job, thank you, things like that." Although Robles freely admitted that he was brought to the house "to identify or look at the people who had taken [his] phone" and was expecting to find the robbers, Robles explained that he was not going to "just identify anyone," and he did not identify any of the other people he was shown as being involved in the robbery.
The People charged (1) Juarez and Sanchez with robbery (Pen. Code, § 211),2 and (2) Juarez with evading a police officer (Veh. Code, § 2800.2, subd. (a)). The People further alleged that Juarez personally used a firearm (§ 12022.53, subd. (b)), and that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The People additionally alleged that Juarez's 2006 conviction for assaulting a peace officer or firefighter with a deadly weapon other than a firearm (§ 245, subd. (c)) constituted a "strike" within the meaning of our Three Strikes law (§§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)) and a prior "serious" felony (§ 667, subd. (a)). The People lastly alleged that this conviction as well as his 2011 conviction for resisting an executive officer (§ 69) also constituted prior prison terms (§ 667.5, subd. (b)).
Robles identified Juarez and Sanchez as the driver and passenger, respectively, at both the preliminary hearing and at trial.
The jury convicted both defendants of robbery, convicted Juarez of evading a police officer, and found true both of the firearm allegations regarding the robbery. In a bifurcated bench trial, the court found true the prior conviction allegations regarding Juarez.
The court sentenced Juarez to a 19-year prison sentence. Specifically, the court imposed 19 years for the robbery count, comprised of a four-year base sentence (two years, doubled because of Juarez's prior strike conviction) plus 10 years for use of the firearm plus five years for the prior "serious" felony. The court imposed a two-year concurrent sentence on the evading police count. The court sentenced Sanchez to five years of formal probation, including the time he had already served in jail.
Both defendants filed notices of appeal.
DISCUSSION
The parties presented evidence for four days; the jury was instructed on the law and the parties made their closing arguments on the fifth day. The jury began to deliberate at 4:01 p.m. on that fifth day and deliberated for 27 minutes before breaking for the evening. The next morning, the trial court excused one of the jurors and substituted in one of the alternate jurors. When the court did so, the court instructed the jury to "[g]o back to the deliberation room and begin your deliberations." The jury deliberated for 17 minutes prior to lunch and 92 minutes after lunch before reaching its verdicts. Juarez and Sanchez argue that the court's failure to tell the jury that itneeded to disregard its deliberations occurring prior to the substitution violated their right to a 12-member jury under the California Constitution. Because this claim turns on the application of law to undisputed facts, our review is de novo. (People v. Christman (2014) 229 Cal.App.4th 810, 815.)
A trial court has the discretion under section 1089 to discharge a juror in the midst of deliberations and to have "an alternate . . . take a place in...
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