THE PEOPLE v. MARTIN GAYTAN ROBLES

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. MARTIN GAYTAN ROBLES, Defendant and Appellant.

F058108

Decided: February 18, 2010

Grace L. Suarez, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O NFACTS

Martin Gaytan Robles was charged with (1) attempted second degree robbery (Pen.Code, §§ 664/211);  and (2) carrying a dirk or dagger (Pen.Code, § 12020, subd. (a)).  At trial, the prosecution was allowed to elicit evidence of Robles's poverty as a motive for the attempted robbery.   Robles was subsequently convicted of both counts.   Robles was sentenced to two years for count 1, and two years for count 2, to run concur

rently. He was given time credits of 193 days.   On appeal, Robles contends that the court erred in allowing the prosecutor to elicit evidence of his poverty, and further, that the error was prejudicial.   We disagree and will affirm.

On February 1, 2009, at approximately 11 p.m., Federico Montalvo and his uncle were walking down C Street in Fresno, after having visited Club One Casino.   Montalvo's uncle sat down at a bus stop and Montalvo walked ahead.   When he was about 100 feet away from his uncle, Montalvo noticed Robles approaching him.   Robles pulled out a knife and asked, “Do you got any money?”   Montalvo responded, “Why are you trying to rob me?   We're both Hispanics.   Why are you trying to do this to me.   I'm poor myself.”   Robles then walked away.

After Robles left, Montalvo walked back to his uncle, who told him he had not seen anything.   Montalvo called the police, who apprehended Robles at a nearby gas station.

During cross-examination of Robles, the prosecutor asked, “You've been homeless for awhile;  is that correct?”   Defense counsel objected, but the objection was overruled.   Robles responded he had been estranged from his wife for two and one-half years.   The prosecutor 1 then asked, “So have you been homeless for that period of time?”   Robles responded, “Yes.” The prosecutor then asked Robles how much he was paid for four to five hours of work.2  Defense counsel objected, and the prosecutor responded, “Goes to motive, your Honor.”   The judge stated, “Yeah, it does.   I'll allow it.”   The prosecutor then asked, “So would it be safe to say that you didn't have much money that week?”   Robles responded, “No, I didn't.   Barely just to eat a little something.”   The prosecutor then asked, “So isn't it true then, sir, when you saw Mr. Montalvo on the street you approached him and asked him for money?”   When Robles said he had not approached Montalvo, the prosecutor asked him, “But you testified that you didn't have any money, correct?”   The defense objected, “Asked and answered” and the court sustained the objection.

During closing argument, the prosecutor stated, “He [Robles] did testify he had worked in the fields and that he had a-very little money, barely enough to eat.   That provides a motive, ladies and gentlemen, for this crime.”

DISCUSSION

Robles contends the trial court erred in allowing the prosecutor to elicit testimony of his poverty to show motive for the attempted robbery.   We review evidentiary rulings under the abuse of discretion standard.  (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.)   Under this standard, as long as a reasonable justification exists for the trial court to have taken the action, it will not be disturbed on appeal.  (People v. Crandell (1988) 46 Cal.3d 833, 863.)

Evidence of poverty to establish motive is generally inadmissible because reliance on poverty alone as evidence of motive is unfair to the defendant, and the probative value of such evidence is outweighed by the risk of prejudice.   (People v. McDermott (2002) 28 Cal.4th 946, 999.)   Here, the respondent concedes the court erred in permitting the prosecutor to elicit evidence of Robles's poverty.

In a criminal case, when the error is one of state law, the judgment will be affirmed unless the appellate court concludes there is a reasonable probability that a result more favorable to the appellant would have been reached in the absence of the error.  (People v. Gutierrez (2009) 45 Cal.4th 789, 813.)   A reasonable probability is one sufficient to undermine confidence in the outcome of the proceedings.  (In re Neely (1993) 6 Cal.4th 901, 909.)

Robles contends the error was prejudicial, while the respondent contends the error was harmless.   We find the error was harmless.

In People v. Carrillo (2004) 119 Cal.App.4th 94 (Carrillo ), the defendant was convicted of aiding and abetting her boyfriend in a robbery and aggravated assault.  (Ibid.) During the trial, the prosecution raised the issue of the defendant's poverty while questioning four defense witnesses.   (Id. at p. 103.)   The Court of Appeal reversed, holding that evidence of the defendant's poverty was inadmissible to prove motive to commit a robbery.   Thus, where the prosecution introduced a considerable amount of evidence showing the defendant's financial problems, the defendant was deprived of a fair trial.  (Ibid.)

In Carrillo, the respondent asserted the error was harmless because the jury was made aware that the appellant was poor from evidence other than the prosecution's questions.   The court disagreed.  “Not everyone who has a roommate is teetering over the abyss of bankruptcy.   Evidence the jury knew she lived with [roommate one] and [roommate two] before the robbery does not convince us the cat was already out of the bag when the prosecutor started asking pointed questions about her financial situation.”  (Carrillo, supra, 119 Cal.App.4th at p. 103.)

This case is distinguishable from Carrillo.   While Carrillo found there were many inferences that the jury could have drawn regarding why the defendant lived with multiple roommates, other than that she was impoverished;  here, that is simply not the case.   Prior to the prosecutor asking Robles about his homelessness and salary, defense counsel had elicited from Robles testimony that (1) he worked “on the fields”;  (2) he had worked only four or five hours that day;  (3) he had tried to stay at the Fresno Rescue Mission shelter;  (4) he was going from one friend's house to another trying to find somewhere to sleep;  and, (5) he was walking to a friend's “house” under a bridge to get a sleeping bag.

In Carrillo, several inferences could have been drawn from the fact that the defendant lived with multiple roommates.   Here, there are few, if any, reasonable inferences the jury could have drawn from these facts other than Robles was homeless and poor.   It is common knowledge that working in the fields is not a lucrative profession.   Furthermore, Robles had only worked a few hours that day, in a line of work that pays very little.   Additionally, the only reasonable inference to be drawn from the fact that he tried to stay at the Fresno Rescue Mission that night and was looking for a place to sleep with friends, was that he did not have the financial means to go elsewhere.   Finally, the fact that he was on his way to get a sleeping bag from a friend who lived under a bridge, suggests that Robles was himself homeless, as people with homes-or anywhere to stay-do not resort to borrowing sleeping bags or blankets from those who live under bridges.   The only reasonable inference the jury could have drawn from these facts was that Robles was extremely poor and homeless.   Therefore, the jury knew that Robles was homeless and lived in poverty before the prosecutor elicited further evidence on the subject.

Finally, unlike in Carrillo, where the prosecutor elicited a considerable amount of evidence of the defendant's financial status from four different witnesses (Carrillo, supra,119 Cal.App.4th at p. 103);  here, the prosecutor's questions were addressed to Robles alone, and the jury learned nothing it had not already heard directly or inferred from Robles's testimony on direct examination.

Therefore, the trial court's error in allowing the prosecution to elicit evidence of Robles's poverty was harmless.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. The reporter's transcript contains a typographical error at this point in the record.   The transcript shows this question being asked by the defense counsel;  however, the question was asked by the prosecution..  FN1. The reporter's transcript contains a typographical error at this point in the record.   The transcript shows this question being asked by the defense counsel;  however, the question was asked by the prosecution.

FN2. Robles had previously testified that because of the weather, he had worked only four or five hours that day..  FN2. Robles had previously testified that because of the weather, he had worked only four or five hours that day.

THE COURT 1 FN1. Before Cornell, Acting P.J., Gomes, J., Kane, J.

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