THE PEOPLE v. MICHAEL ANTHONY BOJORQUEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I. INTRODUCTION

Defendant, Michael Anthony Bojorquez, was convicted of:  two counts of home invasion robbery (Pen.Code,1 §§ 211, 213, subd. (a)(1)(A);  counts 6, 9);  three counts of first degree residential robbery (§§ 211, 212.5, subd. (a);  counts 1, 7, 10);  one count of attempted first degree residential robbery (§§ 664, 211;  count 2);  and two counts of first degree residential burglary (§ 459;  counts 3, 8).   Defendant was sentenced to 13 years in state prison.   We modify the judgment and affirm as modified.

II. THE EVIDENCE

A. May 28, 2009 (counts 6–10)

We view the evidence in the light most favorable to the judgment.  (Jackson v. Virginia (1979) 443 U.S. 307, 319;  People v. Elliot (2005) 37 Cal.4th 453, 466;  Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908–909.)   On May 28, 2009, around 5:30 p.m., Margarita Cosme answered a knock at her apartment door.   A friend, Ana Violantes, was in the kitchen, not in view of the door.   Defendant, who was unknown to Ms. Cosme, asked in Spanish whether Juan Dominguez lived there.   Defendant told Ms. Cosme he was a police officer.   Ms. Cosme was told she was under arrest as an accomplice to Mr. Dominguez, a drug dealer.   Defendant raised his shirt quickly, exposing a badge.   He pushed Ms. Cosme inside and attempted to handcuff her.   Defendant succeeded in placing a handcuff on one of her wrists, but she resisted.   The two began to wrestle.   Hearing yelling and sounds of a struggle, Ms. Violantes came out of the kitchen.   Ms. Cosme told Ms. Violantes to call the police.   Defendant then kicked Ms. Cosme in the stomach, handcuffed her free wrist, grabbed her by the hair and forced her to the ground.   He asked for her purse.   Defendant ordered Ms. Cosme to stay on the ground and to be quiet.   He ordered Ms. Violantes to “hit the floor.”   Defendant asked Ms. Violantes if there was anyone else in the apartment.   The two women lay on the floor face down.

Defendant called to his accomplices, “You can come up.”   Two more men entered the apartment.   The three men spoke to each other in English, which neither victim understood.   At least two of the men went into the kitchen and threw things around.   Five to ten minutes after defendant first entered the apartment, one of the men said in Spanish that it had been a mistake, they had the wrong apartment.   Before they left, one of defendant's accomplices removed the handcuffs from Ms. Cosme's wrists.   Ms. Cosme subsequently discovered that her cellular telephone and $930 in cash were missing.   The three men also took Ms. Violantes's I-pod, cellular telephone and $210 in cash.

Six days after the home invasion robbery, on June 3, 2009, Ms. Cosme and Ms. Violantes both identified defendant in a photographic line-up as the person who first entered the apartment.   Ms. Cosme said defendant “looked most like” the man who had handcuffed her.   Ms. Violantes said defendant “seem[ed] the one” she could recognize.   She added, “He's the one who handcuffed Margarita.”   On cross-examination at trial, Ms. Cosme testified she had not been entirely certain of the photograph because defendant's hair was different on the day he entered her apartment.   At trial, also on cross-examination, Ms. Violantes testified she had been certain of her pretrial photographic identification of defendant as the perpetrator.

Ms. Cosme did not identify defendant at the preliminary hearing.   At trial, Ms. Cosme explained she had recognized defendant at the preliminary hearing and would have identified him but she was afraid.   She had moved out of her apartment and changed her telephone number because she feared the perpetrators of the home invasion robbery would do something to her or her family.   Ms. Cosme testified she was trying to hide.   She had not wanted to testify at the preliminary hearing at all because she was afraid.   But a detective found her and brought her to court.

Ms. Violantes identified defendant at the preliminary hearing.   At trial she testified she had not been confident of that preliminary hearing identification.   Defendant seemed familiar, but she could not be certain.   Ms. Cosme and Ms. Violantes both identified defendant at trial.   Ms. Cosme testified she was sure he was the person who entered her apartment and handcuffed her although his hair was shorter at the time of trial.

B. May 30, 2009 (Counts 1–3)

The prosecutor presented the preliminary hearing testimony of the two May 30, 2009 victims because they were unavailable to testify at trial.   On Saturday night, May 30, 2009, as Veronica Perez and Karen Pineda, who were roommates, were entering their apartment, a well-dressed man came up behind them and forced them into the residence.   He identified himself as a police officer, displayed a badge, and said “they” were looking for drugs.   The man attempted to handcuff Ms. Pineda.   Ms. Perez turned and ran out the apartment door.   As she did so, defendant was entering the apartment, pulling handcuffs out of his pocket.   Defendant told Ms. Perez to stop, that she could not run and he had to handcuff her.   Defendant ran after Ms. Perez.   Ms. Perez ran for half a block until a stranger intervened and offered assistance.   The only thing taken from Ms. Pineda was her cellular telephone.   It fell while she was struggling with her attacker and he picked it up and took it.   No property was taken from Ms. Perez.

While Ms. Perez was running away with defendant following her, Ms. Pineda was struggling with defendant's co-perpetrator, who was attempting to handcuff her.   The man got free and took off running.   Ms. Pineda chased him.   Ms. Perez saw defendant's co-perpetrator run to a Chevy Silverado that was parked in front of the apartment building, open the truck's door and throw a badge and a tie inside.   Defendant and an accomplice ran to a bus stop and boarded a bus.

Ms. Pineda and Ms. Perez waited in front of their apartment building for law enforcement officers to arrive.   They saw a man get out of a small car and approached the Chevy Silverado truck.   The truck was parked across the street from the apartment building.   The car drove off.   Ms. Perez could not see how many people were in the car.   Ms. Perez told this third man that he could not move the truck because the police were coming.   The man wrapped his jacket around his hand and began to open the truck's door.   Ms. Perez closed the door with her foot.   She saw a badge in the truck.   Ms. Perez identified defendant from a photographic line-up.   Ms. Pineda was unable to identify anyone.

Police officers subsequently found a badge in the truck, as well as zip ties, an employment time card with defendant's name and social security number on it, and “something” relating to defendant's wife, Sandra Avalos.   The truck matched defendant's vehicle as described by his wife.   Los Angeles Police officer Joshua Erdmann searched the man who had attempted to open the truck's door.   Officer Erdmann recovered two handcuff keys clipped to a keyring on the man's belt.

Defendant presented an alibi defense to the May 28, 2009 robbery.   His wife, Ms. Avalos, testified that on May 28, 2009, between 5:30 and 6:00 p.m., her husband was with her.   They had walked to a video store to pick up a video.   They saw a neighbor in front of their building, “Miss Maria,” who sells tamales and drinks.   Maria Rosas corroborated Ms. Avalos's testimony.   Ms. Rosas testified she spoke with defendant for approximately 15 minutes, from 5:30 to 5:45 p.m. They were discussing his attempts to help her buy a car.

III. DISCUSSION

A. Evidence of Defendant's Financial Condition

Defendant argues evidence he was in financial trouble denied him his federal due process fair trial right.   We find defendant forfeited the argument.   And even if not forfeited, there was no error and no constitutional deprivation.

The prosecutor introduced evidence that at the time the home invasion robberies were committed—on May 28 and 30, 2009—defendant was unemployed and was two months ($1,700) behind in rent.   Defendant's lessor had begun eviction proceedings against defendant's family of five.   The two adults and three children were living on $545 a month in CalWorks funds together with food stamps.   However, on May 28, 2009, the first of the two home invasion robberies garnered defendant and his accomplices more than $1,100.   One day later, on May 29, 2009, defendant's wife, Ms. Avalos, paid $885 cash in rent and move-in expenses for a new apartment.   Ms. Avalos did not give her husband's real name on the rental application.   Ms. Avalos testified she had saved up the $885 over four months.

Defense counsel objected on relevance grounds to some but not all evidence of defendant's financial condition.   The prosecutor argued in closing, without objection, that defendant committed the crimes because he needed money to support his family.   The prosecutor pointed out that it was shortly after the robberies that defendant's wife was able to pay rent and move-in expenses for a new apartment in cash.

Defendant forfeited his argument by failing to raise it in the trial court.   (People v. Cornwell (2005) 37 Cal.4th 50, 96, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22;  People v. Koontz (2002) 27 Cal.4th 1041, 1076.)   Even if not forfeited, we find no error and no constitutional deprivation.   We review this contention for an abuse of discretion.  (People v. Cowan (2010) 50 Cal.4th 401, 482;  People v. Heard (2003) 31 Cal.4th 946, 972, 974.)   It is well-settled that:  “Generally, evidence of the wealth or poverty of a defendant is not admissible;  but the sudden possession of money, immediately after the commission of a larceny, by one who before that had been impecunious, is clearly admissible as a circumstance in the case.  [Citation.]”  (People v. Kelly (1901) 132 Cal. 430, 431–432;  accord, People v. Cornwell, supra, 37 Cal.4th at pp. 96–97;  see People v. Koontz, supra, 27 Cal.4th at p. 1076.)   Defendant could not pay his rent.   But, immediately following a home invasion robbery that garnered the perpetrators over $1,100, defendant's wife was suddenly able to pay $885 in rent and move-in expenses in cash.   This was relevant as circumstantial evidence of guilt.   Because the challenged evidence was relevant apart from showing motive, defense counsel was not ineffective for failing to object on the precise ground raised on appeal.  (People v. Cornwell, supra, 37 Cal.4th at p. 96, fn. 13;  People v. Prieto (2003) 30 Cal.4th 226, 261.)   Any undue prejudice that may have arisen from an inference defendant's poverty was his motivation to commit the crimes could have been cured by a limiting instruction had defendant requested one.   Even if it had been error under state law to admit the financial condition evidence, its admission did not violate defendant's due process rights.   It did not infect the entire trial or undermine confidence in the verdict (People v. Foster (2010) 50 Cal.4th 1301, 1335;  People v. Halvorsen (2007) 42 Cal.4th 379, 416) or render defendant's trial fundamentally unfair.  (Estelle v. McGuire (1991) 502 U.S. 62, 70;  People v. Partida (2005) 37 Cal.4th 428, 439;  People v. Falsetta (1999) 21 Cal.4th 903, 913.)   No constitutional error occurred.

Moreover, any error was harmless under both People v. Watson (1956) 46 Cal.2d 818, 836 and People v. Chapman (1967) 386 U.S. 18, 24.   There was substantial evidence, including eyewitness identification and items found in defendant's Chevy truck, connecting defendant with the crimes.   Further, that defendant fled the scene of the May 30, 2009 robbery leaving his truck behind was evidence of guilt.  (People v. Navarette (2003) 30 Cal.4th 458, 502 [defendant's flight from scene of robbery was evidence of his consciousness of guilt];  People v. Mendoza (2000) 24 Cal.4th 130, 180 [consistent with due process, jury may infer defendant's flight immediately after committing crime indicates consciousness of guilt].)

B. Unavailability of Witnesses

Defendant contends the trial court improperly found two victims, both of whom testified at the preliminary hearing, were unavailable to testify at trial.   A defendant's Sixth Amendment right to confront and cross-examine a witness is not absolute.   The Sixth Amendment confrontation right is subject to an exception where:  a witness is unavailable;  the witness has given testimony at a prior judicial proceeding against the same defendant;  and the witness was subject to cross-examination by the defendant.  (Bullcoming v. New Mexico (2011) 564 U.S. _, _ [131 S.Ct. 2705, 2713];  Barber v. Page (1968) 390 U.S. 719, 722.)   The hearsay rule is subject to a similar exception.   (Evid.Code, § 1291;  People v. Samayoa (1997) 15 Cal.4th 795, 850.)   A witness is “unavailable” if the party offering his or her testimony has exercised due diligence to procure the person's attendance, but has been unable to do so.  (Evid.Code, § 240, subd. (a)(5).)   Under both the hearsay rule and the Sixth Amendment, “due diligence” in procuring a witness's attendance entails good faith efforts and reasonable diligence, but does not require futile acts.  (Ohio v. Roberts (1980) 448 U.S. 56, 62–77, overruled on another point in Crawford v. Washington (2004) 541 U.S. 36, 62–69;  People v. Hovey (1988) 44 Cal.3d 543, 562.)   Our Supreme Court has noted:  “ ‘[D]ue diligence’ is ‘incapable of a mechanical definition,’ but it ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’  [Citations.]”  (People v. Cromer (2001) 24 Cal.4th 889, 904, quoting People v. Linder (1971) 5 Cal.3d 342, 346–347.)   We independently review the trial court's ruling that the prosecutor's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's confrontation right.  (People v. Wilson (2005) 36 Cal.4th 309, 341;  People v. Cromer, supra, 24 Cal.4th at p. 901.)

John Cheslock, a senior investigator for the Los Angeles County District Attorney's office, attempted to locate two victims who had testified at the preliminary hearing, Ms. Pineda and Ms. Perez.   Their telephone numbers, as listed in the police reports, were either disconnected or no longer working.   The victims no longer resided at the listed address.   The current occupants did not know the whereabouts of the former tenants.   An apartment manager believed the two women were from Central America and may have returned there.   The apartment building ownership had changed.   Hence, the apartment manager was unable to produce any paperwork relating to the rental or any forwarding information for the two women.

Investigator Cheslock visited two additional places where the women had reportedly been seen.   He knocked on doors and spoke to other residents.   He spoke to at least seven people in the neighborhood, including the property managers at four locations.   Investigator Cheslock unsuccessfully searched several databases.   This included the databases maintained by the Justice Data Interface Controller, the California Law Enforcement Telecommunications System, the Department of Motor Vehicles and the United States Immigration and Customs Enforcement.

An apartment management supervisor provided Investigator Cheslock with a rental application for a unit in a nearby building.   The application had been completed by two women who listed the victims' address as their current residence.   They also listed a 2005 silver Nissan Altima on the application.   The victims reportedly had been seen driving a gray car.   Investigator Cheslock searched motor vehicles department records for information on the Nissan Altima to no avail.   He did not have a license plate number.   And although Investigator Cheslock contacted their personal references and searched the aforementioned databases, he was unable to locate the two women named on the rental application.   Investigator Cheslock contacted an individual who lived nearby and was listed as a witness on the police report.   This individual said the women had moved out of the area about one month after the crime.

We find the foregoing efforts to locate the two victims were reasonable.   Our Supreme Court has held:  “That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion.  [Citation.]  It is enough that the People used reasonable efforts to locate the witness.”   (People v. Cummings (1993) 4 Cal.4th 1233, 1298;  accord, People v. Wilson, supra, 36 Cal.4th at p. 342.)   No error occurred.

C. Sufficiency of the Evidence as to the Robbery of Veronica Perez

Defendant asserts there was insufficient evidence defendant or the unidentified accomplice attempted to rob Ms. Perez.   Defendant reasons that neither man demanded any property or attempted to take any property from Ms. Perez.   We disagree.

Section 211 states, “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”   Our Supreme Court has held:  “An attempt to commit a crime is comprised of ‘two elements:  a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ (§ 21a;  see § 664 [prescribing punishment].)   Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense.  [Citations.]”  (People v. Medina (2007) 41 Cal.4th 685, 694;  see People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8;  People v. Memro (1985) 38 Cal.3d 658, 698, overruled in part by People v. Gaines (2009) 46 Cal.4th 172, 181, fn.2.) Our Supreme Court has further held:  “Under general attempt principles, commission of an element of the crime is not necessary.  [Citation.]  As such, neither a completed theft [citation] nor a completed assault [citation] is required for attempted robbery.  [Citation.]”  ( People v. Medina, supra, 41 Cal.4th at p. 694;  see People v. Bonner (2000) 80 Cal.App.4th 759, 764;  People v. Mullins (1992) 6 Cal.App.4th 1216, 1221.)

Our review is for substantial evidence:  “[We] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.   The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.  [Citations.]”  (People v. Mincey (1992) 2 Cal.4th 408, 432;  accord, People v. Hovarter (2008) 44 Cal.4th 983, 996–997.)   Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (Jackson v. Virginia, supra, 443 U.S. at p. 319;  People v. Bolin (1998) 18 Cal.4th 297, 331.)   The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence.  (People v. Maury (2003) 30 Cal.4th 342, 396;  People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

There was substantial evidence defendant planned to rob Ms. Perez and Ms. Pineda.   Impersonating police officers, defendant and the unidentified accomplice forced their way into a private residence, Ms. Pineda's and Ms. Perez's apartment.   Both carried handcuffs.   Defendant's accomplice displayed a badge.   During a struggle while he tried to handcuff Ms. Pineda, the unidentified accomplice took her cellular telephone.   That defendant and the unidentified accomplice took property only from Ms. Pineda does not detract from the conclusion Ms. Perez was the victim of an attempted robbery.   The intent to rob was inferable from the circumstances.   The perpetrators took steps that would ordinarily result in the commission of robbery.   The jury was properly instructed and impliedly found that defendant aided and abetted the unidentified accomplice.   Defendant's failure to carry out his intent as to Ms. Perez means only that the substantive crime was not completed.  (See People v. Bonner, supra, 80 Cal.App.4th at p. 764, fn. 3.;  People v. Birden (1986) 179 Cal.App.3d 1020, 1025–1026.)

D. Deoxyribonucleic Acid Test Costs

Defendant objects to the trial court's order that he “submit to a DNA test” and pay the processing costs.   Defendant failed to object to the order at trial.   We conclude, however, that the order was legally unauthorized (see People v. Anderson (2010) 50 Cal.4th 19, 26;  People v. Scott (1994) 9 Cal.4th 331, 354) and may be corrected on appeal.  (People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7;  People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) For purposes of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Prop. 69, approved by voters, Gen. Elec. (Nov. 2, 2004)), Government Code sections 76104.6, subdivision (a)(1), and 76104.7, subdivision (a), authorize the imposition of a penalty “upon every fine, penalty, or forfeiture imposed and collected by the courts” for criminal offenses.   Here, however, the trial court did not impose any fine, penalty or forfeiture against defendant.   Therefore, no Government Code section 76104.6 or 71604.7 penalty was authorized.  (See People v. Boudames (2006) 146 Cal.App.4th 45, 50;  People v. Allen (2001) 88 Cal.App.4th 986, 991–994, 999–1000.)

The Attorney General contends the trial court had discretion to impose the costs of deoxyribonucleic acid testing under section 295, subdivision (j).  We disagree.   Section 295, subdivision (j) states:  “The trial court may order that a portion of the costs assessed pursuant to Section ․ 1203.1m include a reasonable portion of the cost of obtaining specimens, samples, and print impressions in furtherance of this chapter․”  (Italics added.)   Section 1203.1m, subdivision (a) provides in part, “If a defendant is convicted of an offense and ordered to serve a period of imprisonment in the state prison, the court may, after a hearing, make a determination of the ability of the defendant to pay all or a portion of the reasonable costs of the imprisonment.”   In other words, according to the statutes' plain terms (People v. Hudson (2006) 38 Cal.4th 1002, 1009;  People v. King (2006) 38 Cal.4th 617, 622), when a defendant is sentenced to state prison, costs of obtaining deoxyribonucleic acid samples may be imposed pursuant to section 295, subdivision (j), if the trial court first imposes costs under section 1203.1m. The trial court did not, after a hearing, impose costs under section 1203.1m in this case.   Therefore, the order imposing the costs of deoxyribonucleic acid testing was not authorized.

E. Presentence Custody Credit

We asked the parties to brief the question whether defendant received excessive presentence custody credit.   The trial court granted defendant credit for 410 days in pretrial custody plus 61 days of conduct credit for a total presentence custody credit of 471 days.   However, because defendant was arrested on June 4, 2009 and sentenced on July 15, 2010 he was entitled to credit for 407 days in pretrial custody plus 61 days of conduct credit for a total presentence custody credit of 468 days.  (In re Marquez (2003) 30 Cal.4th 14, 25–26;  People v. Smith (1989) 211 Cal.App.3d 523, 527.)   The abstract of judgment must be amended to reflect the corrected presentence custody credit award.

F. The Abstract of Judgment

Defendant was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)(1)), a $200 parole revocation restitution fine (§ 1202.45), a $30 court security fee as to each count ($180) and a $30 court facilities assessment as to each count ($180).   The abstract of judgment correctly reflects the restitution and parole revocation restitution fines.   However, the abstract of judgment states only that a “$120 criminal conviction assmnt.  (70373 G.C.)” was ordered.   The abstract must be amended to show that $180 in court security fees and $180 in court facilities assessments were imposed.   Finally, the abstract must be amended to reflect that:  the count 2 conviction was for attempted first degree residential robbery;  the concurrent six-year sentence on the count 3 conviction, for first degree residential robbery, was stayed under section 654, subdivision (a);  the count 8 conviction was for first degree residential burglary, not “home invasion,” and a concurrent six-year sentence was imposed and stayed.   The trial court is to personally ensure the abstract of judgment is amended to properly reflect the judgment, including the modifications discussed above.  (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2;  People v. Mitchell (2001) 26 Cal.4th 181, 185.)

IV. DISPOSITION

The judgment is modified to vacate the order that defendant pay the cost of processing a deoxyribonucleic acid test and to reflect presentence custody credit for 407 days of actual presentence custody plus 61 days of conduct credit for a total of 468 days.   The judgment is affirmed as modified.   Upon remittitur issuance, an amended abstract is to be prepared setting forth the modifications listed in part III(D) through (F) and forwarded to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

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.

ARMSTRONG, J. KRIEGLER, J.