THE PEOPLE v. ARMANDO CARRILLO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

Armando Carrillo appeals from a judgment of conviction for second degree robbery (Pen.Code, § 211) ¹ entered following a jury trial.   He admitted having served three prior prison terms (§ 667.5, subd. (b)).  The trial court struck two of the priors and sentenced him to a five-year upper prison term, plus a one-year prior prison term enhancement.   The court ordered him to pay various fines and a fee.   The July 13, 2009 minute order reflects the court also ordered him to pay attorney fees in the amount of $8,265.18.

On appeal, Carrillo contends the evidence is insufficient to support his robbery conviction because:  (1) the identification evidence is fatally flawed;  (2) his attorney's failure to object to testimony that Carrillo resembled a gang member amounted to ineffective assistance of counsel (U.S. Const., 6th Amend.);   and (3) the attorney fee order must be vacated for noncompliance with the requirements of section 987.8, subdivision (b).

BACKGROUND

On December 21, 2008, at approximately 1:50 p.m., as Alejandro Carbajal was walking with his bicycle on the sidewalk of Gage Avenue, a Honda stopped about 5 or 7 feet away from him.   As described by Carbajal, a bald male with a goatee exited the car and in Spanish threatened to shoot Carbajal unless he stopped.   Carbajal complied because he feared that the bulge in the assailant's waistband was a gun.   The assailant ripped the cell phone and its pouch from Carbajal's belt and also took a wallet and money from Carbajal's pockets.   He then ordered Carbajal to walk away or be shot.   Carbajal complied.

Luis Ordonez observed the robbery from his car as he was stopped at a red light on Gage Avenue.   He noted that the robber had a shaved head, a mustache, and a goatee.   Ordonez's wife wrote down the car's license plate number.   Later, as Ordonez drove past the robber's stopped car, he observed that the car contained no passengers and that the robber had a tattoo with “big letters” on the back of his head.   Flagging down a police car, Ordonez reported that the robber had a “F-13” tattoo on the back of his head and gave police the car's license plate number.   During a later police interview, Ordonez stated he “thought it was F-13, but he couldn't be certain what it was.”   Ordonez identified Carrillo from a photographic lineup the day after the incident and later again at trial.

Carbajal identified Carrillo from a photographic lineup as the person who resembled the robber and indicated he was about 70 percent certain of the identification.   At trial, he again identified Carrillo and clarified that his identification was based on Carrillo's facial features and he was “sure” of his identification.

On December 23, 2008, police stopped Norma Lara while she was driving a Honda Accord belonging to Carrillo's sister.   Lara had borrowed the car from Carrillo about 30 minutes earlier.   The car's license plate number matched the one Ordonez had given the police.   Carbajal's cell phone pouch was found inside the Honda's glove compartment.   Although the car belonged to his sister, Carrillo drove it on a regular basis.

Carrillo, who relied on a mistaken identity defense, did not present any evidence.

DISCUSSION

1. Evidence Identifying Carrillo as Robber Substantial

Carrillo contends the evidence is insufficient to establish that he was the robber.   He argues that Carbajal's and Ordonez's identifications are not credible because of inherent inconsistencies and conflicts in their testimony.   We are not persuaded.

In passing on an insufficient evidence claim, this court “determines ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’  [Citations.]  We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’  [Citation.]  Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’  [Citation.]  This standard applies whether direct or circumstantial evidence is involved.  ‘Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.  [Citation.]  “ ‘If the circumstances reasonably justify the trier of fact's findings, the

“Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.”  (People v. Young (2005) 34 Cal.4th 1149, 1181.)   Similarly, the credibility of witnesses is a matter generally for the trier of fact to resolve.   A witness's testimony that supports a judgment may not be rejected on appeal unless it is physically impossible or its inherently improbability plainly appears.  (People v. Ozene (1972) 27 Cal.App.3d 905, 910, disapproved on other grounds in People v. Gainer (1977) 19 Cal.3d 835, 844-852.)  “It is well settled in California that one witness, if believed by the jury is sufficient to sustain a verdict.”  (Ibid.) Accordingly, “[a] reviewing court may not reappraise the credibility of witnesses and reweigh the evidence.  [Citations.]”  (People v. De Paula (1954) 43 Cal.2d 643, 649.)

Carrillo points to inconsistencies and discrepancies in Carbajal's description of the robber.   A few days after the robbery, Carbajal, who is 5 feet, 6 inches tall, described the robber as shorter than himself, weighing about 240 pounds, and exhibiting a large tattoo on his right forearm.   Upon Carrillo's arrest, however, the police described him as 5 feet, 10 inches tall and weighing 190 pounds.   He had no tattoos on his forearms but did have a tattoo on his bicep (pursuant to stipulation the jury was informed that the “tattoos on his biceps,” were “non-gang-related, and ․ not F-13”).   At the preliminary hearing, Carbajal testified that he saw a “F-13” tattoo on the back of the robber's head.   The tattoo on the back of Carrillo's head was an Oakland Raiders insignia.   At trial, he explained that this description of the head tattoo was due to his nervousness and could have been influenced by conversations about tattoos with other people involved in the case.

These inconsistencies and discrepancies are not fatal to the verdict.   So long as substantial credible evidence, as here, supports the verdict, the conviction must be affirmed.   It is the duty of the jury, not this court to determine credibility.

Both the victim and an independent witness identified Carrillo as the robber.   The car driven by the robber belonged to Carrillo's sister and was regularly driven by him.   A few days after the robbery police recovered one of the stolen items from the car.   Although the witnesses' descriptions of the tattoos were not entirely accurate, Carrillo did have a tattoo on the back of his head and did have a tattoo on his arm.

2. No Ineffective Assistance of Counsel Shown

Carrillo contends his counsel was ineffective because he failed to object to Ordonez's characterization of Carrillo as looking like a gang member.   We disagree.

Before trial, Carrillo's attorney, moved to exclude any reference to Carrillo's gang affiliation, “whether it be by testimony or through photographs of the ․ tattoos on his person.”   The prosecutor responded that the victim and a witness observed what appeared to be gang-related tattoos on Carrillo's head and requested that if such tattoos were visible after Carrillo's head was shaved, such evidence be admitted.   Defense counsel stated that he did not object to Carrillo's head being shaved and then photographed.²  He also stated that on the back of Carrillo's head was a tattoo of a Raider's insignia, not “F-13,” and “a couple of skulls [were] on the base of his neck.”   The prosecutor confirmed there was “no gang evidence in terms of any statements by ․ Carrillo or anything like that.”

During direct examination, the prosecutor asked Ordonez to describe the robber's appearance.   Ordonez testified:  “He-it was a person that [sic] looked like a gang member.”   When asked next if he could describe the robber's features Ordonez responded:  “Yes. This gentleman had a shaved head.   He had a beard like the way I have it right now, but he had it a little longer.”   The court clarified, “For the record, the way that he has it is a mustache and goatee.”

Later, the trial court sustained a defense relevancy objection to the prosecutor's question whether Ordonez was familiar with Huntington Park. At the sidebar, the prosecutor explained that she sought to elicit his testimony “whether or not [his familiarity] affected why he thought he saw an [sic] F-13 tattoo.”

After the jury and Ordonez left the courtroom, the following colloquy transpired:  The trial court stated:  “When we discussed the case in chambers about the tattoo, and the fact that it was an [sic] F-13, our discussions included the fact that we weren't going to get into any gang testimony.   Now, when Mr. Ordonez testified that he saw the person exiting looking like a gang member, [Carrillo's counsel] didn't object, I think because it didn't go any further than that.”   Defense counsel responded, “Right.”

The trial court concluded “the fact that [Ordonez] testified just briefly that he looked like a gang member is not a significant problem.”   The court commented:  “I would have, had I known he was going to say something like that, prevented [the prosecutor] from actually allowing him to.   Had I known he was going to say the person looked like a gang member, I would have instructed [the prosecutor] beforehand not to let him utter those words because I think in a case like this where there is no evidence that he is a gang member - it would be one thing if Mr. Carrillo was a member of Florencia 13 and just didn't have that tattoo, or there was some gang evidence to be presented.” ³

“The standard for showing ineffective assistance of counsel is well settled.   ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.  [Citations.]  A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.   Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.   [Citations.]  ‘ “ (People v. Gray (2005) 37 Cal.4th 168, 206-207.)   “ ‘Failure to object rarely constitutes constitutionally ineffective legal representation․’  [Citation.]  ․ For example, counsel could have preferred not to draw the jurors' attention to particular comments by the prosecutor by objecting to them.”  (People v. Huggins (2006) 38 Cal.4th 175, 206.)

On this record, Carrillo has failed to show that his trial counsel had no tactical reason for not objecting.   A plausible reason for not objecting would have been to avoid highlighting a brief comment that the robber looked like a gang member.   Carrillo thus has failed to meet his burden to demonstrate his counsel was ineffective.

3. Reversal of Attorney Fee Order and Remand Warranted

Carrillo contends, and respondent concedes, the trial court erred in ordering him to pay attorney fees, because such order was made without notice, a hearing, or a finding of his ability to pay the amount of fees imposed as required by section 987.8, subdivision (b).  We agree.

“In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.   The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings.   The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (§ 987.8, subd. (b), italics added.)

“If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability.” (§ 987.8, subd. (e).)

The July 13, 2009 minute order reflects that the court conducted a sentencing hearing, imposed sentence and ordered Carrillo to pay $8,265.18 in attorney fees.   In contrast, the reporter's transcript of the hearing that day reflects the subject of attorney fees was never even mentioned.   The court reporter's affidavit responding to a request for an augmented transcript, states:  “No further record of proceedings” for July 13, 2009.  “ ‘As a general rule, a record that is in conflict will be harmonized if possible.  [Citation.]  If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case.’  [Citation.]”  (People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4.) Because the minute order recites an unrounded precise amount, $8,265.18, it gives rise to a reasonable inference that the trial court in fact ordered Carrillo to pay attorney fees rather than the clerk's erred in making the entry.   We therefore conclude that the minute order is the correct record and that the trial court did order Carrillo to pay attorney fees.   Nonetheless, the record is silent on whether the trial court complied with the requirements of section 978.8, subdivision (b), in making its attorney fee order.   Accordingly, we reverse the attorney fee order and remand, allowing the court to conduct further proceedings on the record in compliance with section 978.8, subdivision (b).

DISPOSITION

The attorney fee order is reversed and the matter is remanded to allow the court to hold a hearing on attorney fees.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All further section references are to the Penal Code except as otherwise indicated..  FN1. All further section references are to the Penal Code except as otherwise indicated.

FN2. The trial court ordered Carrillo to shave his head and allow police to photograph his head.   Pursuant to a defense request, the court allowed Carrillo to take the podium and display his head for the jury..  FN2. The trial court ordered Carrillo to shave his head and allow police to photograph his head.   Pursuant to a defense request, the court allowed Carrillo to take the podium and display his head for the jury.

FN3. The court ruled that admission of gang evidence would be prejudicial under Evidence Code section 352 and that the prosecutor could clarify the issue of whether Ordonez was correct about his description of the tattoo without reference to gang membership..  FN3. The court ruled that admission of gang evidence would be prejudicial under Evidence Code section 352 and that the prosecutor could clarify the issue of whether Ordonez was correct about his description of the tattoo without reference to gang membership.

MALLANO, P. J. CHANEY, J.