THE PEOPLE, Plaintiff and Respondent, v. JAIRO ESPINOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Defendant, Jairo Espinoza, appeals from a judgment of conviction, after a jury trial, of two counts of first degree residential robbery (Pen.Code,1 § 211) and one count of first degree burglary with a person present in the residence. (§ 459.) The trial court found defendant had incurred a prior robbery conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. He was sentenced to 14 years, 8 months in state prison. Defendant contends the trial court erred prejudicially in failing to instruct sua sponte regarding how jurors are to weigh conflicting evidence (CALJIC No. 2.22). We find the error was harmless. We reverse the judgment insofar as the trial court imposed a $280 assessment under section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)(1). We conclude that upon remittitur issuance, the trial court must impose and then stay the sentence on count 3.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
Defendant had been in the victims' apartment by invitation on Friday evening, December 11, 2009. In the early morning hours of Sunday, December 13, 2009, Maria Arellano was at home. Also present was Ms. Arellano's 16–year old daughter D.P. Both were sleeping. Ms. D.P. awoke to find defendant in her bedroom trying to take her television. Defendant said he had a gun and his “homies” were waiting for him outside. He warned Ms. D.P. not to make a scene. Defendant left through the apartment's open, undamaged front door with the television. Ms. Arellano also awoke and recognized defendant. In addition to the television, Ms. D.P.'s computer, iPod and house keys were missing. Ms. D.P. had not seen her house keys since the previous Friday.
Long Beach Police Officer David Greer determined the burglars had entered the apartment through the front door using a key. Someone had written “Fresh” in the dust on a mirror. Ms. Arellano had previously seen defendant write “Fresh” and “M2K” on one of her magazines. Officer Greer spoke to Ms. Arellano for 15 to 20 minutes. She did not appear to be intoxicated or under the influence of any controlled substance. There was no evidence of illegal drug use in the apartment.
Long Beach Police Officer Martin Ron had known defendant for several years. Defendant's nickname was “Fresh.” Defendant was a member of a group known as “Mob to Kill” or “M2K.”
Ms. Arellano identified defendant from a photographic lineup and at trial. Ms. D.P. described defendant as similar to the man in her room when shown a photographic lineup. She identified defendant at the preliminary hearing and again at trial. She was certain of her identifications.
B. Defense Evidence
Defendant testified he had been in Ms. Arellano's apartment late in the evening on Friday, December 11, 2009. Ms. Arellano had invited him into her apartment to smoke methamphetamine. His nickname was “Fresh” and he was a member of “M2K.” He had written his name into Ms. Arellano's magazine. He denied burglarizing her apartment. In 2008, he had been convicted of robbery.
A. Jury Instruction
A trial court is required to give CALJIC No. 2.22 (“Weighing Conflicting Testimony”) sua sponte when, as here, conflicting evidence is presented. (People v. Virgil (2011) 51 Cal.4th 1210, 1261–1262; People v. Cleveland (2004) 32 Cal.4th 704, 751.) It was error to fail to do so. (People v. Virgil, supra, 51 Cal.4th at p. 1262; People v. Rincon–Pineda (1975) 14 Cal.3d 864, 884.) Under the circumstances of this case, however, the absence of the instruction was harmless because the jury received sufficient guidance from other standard instructions: CALJIC No. 2.00, “Direct and Circumstantial Evidence—Inferences”; CALJIC No. 2.01, “Sufficiency of Circumstantial Evidence—Generally”; CALJIC No. 2.20, “Believability of Witness”; CALJIC No. 2.21.1, “Discrepancies in Testimony”; CALJIC No. 2.27, “Sufficiency of Testimony of One Witness”; CALJIC No. 2.81, “Opinion Testimony of Lay Witness”; CALJIC No. 2.91, “Burden of Proving Identity Based Solely on Eyewitnesses”; and CALJIC No. 2.92, “Factors to Consider in Proving Identity by Eyewitness Testimony.” (People v. Virgil, supra, 51 Cal.4th at p. 1262; People v. Snead (1993) 20 Cal.App.4th 1088, 1097, disapproved on a different point in People v. Letner and Tobin (2010) 50 Cal.4th 99, 181.) Here as in Virgil, “The prosecutor did not suggest that the jury should decide defendant's guilt by comparing the number of witnesses presented by each side, and there is no evidence the absence of CALJIC No. 2.22 hampered the jury's ability to evaluate the evidence. Because it is not reasonably probable that the jury would have reached a different result had CALJIC No. 2.22 been given, the court's error in failing to give the instruction was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)” (People v. Virgil, supra, 51 Cal.4th at p 1262.)
B. Section 654, Subdivision (a)
The trial court stayed the sentence on count 3, first degree burglary with a person present in the residence, under section 654, subdivision (a). The proper procedure under section 654, subdivision (a), is to impose and then stay the sentence. (People v. Deloza (1998) 18 Cal.4th 585, 591–592; People v. Alford (2010) 180 Cal.App.4th 1463, 1469; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1346; see In re Pope (2010) 50 Cal.4th 777, 784, fn. 2.) On remand, the trial court must impose and then stay the count 3 sentence.
C. Assessments and Surcharge
The trial court orally imposed “a $280 assessment and surcharge required by Penal Code section 1464 and Government Code section 7600.” However, no fine was imposed as to which any such penalty would attach. The assessments collected pursuant to section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)(1) do not apply to restitution fines. (Gov.Code, § 76000, subd. (a)(3)(A); §§ 1202.4, subd. (e), 1202.45, 1464, subd. (a)(3)(A.).) Therefore, the judgment must be modified to delete the $280 assessment.
The judgment is reversed insofar as the trial court imposed a $280 assessment pursuant to Penal Code section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)(1). Upon remittitur issuance, the trial court must impose and then stay the count 3 sentence. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FN1. All further statutory references are to the Penal Code unless otherwise noted.. FN1. All further statutory references are to the Penal Code unless otherwise noted.
MOSK, J. KRIEGLER, J.